Advance to Barbarism Part 2 - Chapter 7 to End
ADVANCE TO BARBARISM by F.J.P. Veale - Part 2 - Chapter 7 to End
Chapter 7 — The Nuremberg Trials
Regarded as an isolated phenomenon the initiation in 1945 of the practice of disposing of prisoners of war by charging them with “war-crimes” and then finding them guilty at trials in which their accusers acted as judges of their own charges, was one of the most astonishing developments in the history of mankind.
Regarded, however, merely as the last link in a chain of developments all entirely consistent with each other and all displaying the same general trend, the initiation of trials for “war-crimes” seems the natural and inevitable outcome of a war in which one side had officially adopted a policy of systematically slaughtering a hostile racial minority without regard to age or sex and the other side had officially adopted a policy of slaughtering the enemy civilian population by dropping bombs on the most densely populated residential areas in order to terrorise the survivors into unconditional surrender. A struggle conducted in such a spirit could have no other sequel.
Hitler’s “Final Solution of the Jewish Problem” seems horrifying to civilized minds. It was, however, simply a reversion to primitive practice. In ancient times the extermination of a racial minority whose survival was inconvenient to its rivals was considered the obvious and natural method of dealing with a source of future trouble and danger. Possibly the Assyrian Kings regarded their policy of mass-deportation a humane innovation to traditional practice which generally they continued to follow. Down through the ages nomadic peoples have conformed strictly without such deviations from primitive custom. The Huns of Attila and the Mongols of Ghengis Khan and Tamerlane slaughtered wholesale the populations of the countries which they overran. In more recent times the Zulus as they advanced southward across the Zambesi from their homelands in what is now Kenya exterminated the aboriginal tribes whom they found in their path: in 1915 the Turks, an essentially conservative people, set about ridding the Turkish Empire of its troublesome Armenian racial minority by officially organised massacres in which some three quarters of a million people perished. Primitive practice in its most primitive form still survives in Africa. In 1963, after the withdrawal of the Belgians from the Congo under pressure from U.N.O., the Hutu tribe in the province of Rwanda proceeded to eliminate the hitherto dominant but less numerous Watutsi tribe, not indeed by means of gas chambers, but by hacking to death the victims to the number of thirty thousand.
Enough has already been said in these pages concerning terror bombing. In essence it also was merely a reversion to ancient practice. In savage warfare no tactics are more frequently adopted than sending out raiding parties to attack the women and children of the enemy in order to engender a disposition to surrender.
It would indeed be a subject for surprise if a war conducted in accordance with the most ancient traditions had ended without a reversion to primitive practice in regard to the disposal of captured enemy leaders. To the savage mind the natural and proper way to deal with a captured enemy in one’s power is to kill him.
If the “advance to barbarism” examined in these pages proves to be only a temporary fluctuation in the course of human progress followed by a return to civilized standards, no doubt historians will express surprise and indignation at the depths to which mankind sank during the fifth decade of the 20th century. It was, however, a case of chain reaction; each lapse from accepted standards of conduct led inevitably to the next. Finally a stage was reached when moral indignation became irrelevant because all moral standards had disappeared. The penalty of defeat had become so frightful that the leaders on both sides considered that any act was justifiable that might in any way, directly or indirectly, help to avoid defeat. Viewed in this way, even the plans associated on the one side with Eichmann and on the other side with Lindemann can be said to be justified on the ground that they were bona fide designed to aid the war effort.
On reflection it will become obvious that a struggle waged in this spirit could end in no other way, whichever side won, but with a massacre of the leaders of the defeated side. What is far from obvious, however, is the reason why it was decided that this inevitable massacre should be preceded by the performance of trials for alleged war-crimes. At first sight it is hard to see what purpose this entirely novel deviation from primitive practice was intended to serve. The obvious course for the victors was to publish a list of their leading opponents and to announce that everyone whose name was on this list was hors la loi and as such liable on capture to immediate execution on proof merely of identity. It would then have been easy later to have excused such summary treatment by saying it was a natural if perhaps excessive expression of emotions inflamed by a protracted and sanguinary conflict.
Among the simple-minded the explanation has won wide acceptance that Roosevelt, Stalin and Churchill did not adopt this summary procedure because they were so overcome by sincere moral indignation at the shortcomings of their captive opponents that they determined that the full facts should be disclosed at a trial as a warning to posterity. Cynics, on the other hand, have suggested that the real purpose of the trial was to divert attention from the conduct of the victors by a public investigation of the conduct of the vanquished.
Neither explanation, however, offers an answer to the question why, when it was decided to put the leaders of the vanquished side on trial, the obvious course was not adopted of establishing an impartial court to try them, whose verdict would carry weight with posterity. It would have been an easy matter to have created an impartial court consisting of leading jurists, men of integrity and repute, known to be without personal political bias, from the countries which had been neutral during the war, such as Switzerland, Sweden, Spain, Turkey and the Argentine. Such a court would probably have convicted most of the accused on one charge or another, and its findings of fact would have been readily accepted by future historians.
The only possible objection to having the charges against the accused decided by a court composed of neutral jurists was that such a court could not have been relied on to bring in exactly the verdict the victors required and could not have been precluded from investigating the surrounding circumstances of the offences alleged which would obviously entail an investigation of the conduct of the victors. Having decided that before execution the prisoners should be subjected to “a form of trial” (to quote the Soviet judge, General Nikitchenko), the victors realised that the only way out of their difficulties was to create a special court composed of their own nationals to try “the major war criminals of the European Axis countries”. It was agreed that minor war criminals should be tried and disposed of in whatever manner might be decided by their captors in the country in which they were held as prisoners of war.
This novel deviation from primitive practice certainly achieved its purpose to the extent of providing for the disposal of captured enemies with a minimum of friction between the victorious Powers. “The major war criminals” (so described months before any specific charge was made against them) were duly liquidated after a trial at Nuremberg lasting a year; the fate of all the other captives numbering many hundreds of thousands, depended entirely on chance, speaking, generally, those who found themselves on the western front at the time of Germany’s unconditional surrender, had reason to consider themselves relatively fortunate as compared with those who found themselves on the eastern front. No prisoner charged with a war-crime by the Czechs, Poles, Serbs or Greeks ever survived to describe the trial to which he was subjected and consequently posterity has been spared numberless gruesome stories.
The subject of war-crimes can be dealt with from a number of distinct aspects. To historians war-crimes trials are of particular interest as an aftermath of a great war without a parallel in civilized times. To sociologists they are also of special interest as a unique variation in the development of human relations. To students of the science of war propaganda they are a novel and daring experiment designed to befuddle public opinion. To politicians they are of deep personal concern since, however insignificant and inoffensive a state may be, there is always a possibility that it may be drawn against its will into a war between its neighbours when, if it finds itself on the losing side, its rulers become, ipso facto, war-criminals in accordance with the law laid down in effect at Nuremberg that being on the losing side is the supreme international crime. Finally, to jurists war-crimes trials offer a wide variety of legal problems never before raised, such as, for example, whether an accuser ought to be debarred as such from acting as the judge of his own charges; whether it is just that a person should be convicted of an act which was not declared to be a crime until after its alleged commission, and whether the rules of evidence for so long regarded by all lawyers as indispensable for ascertaining the truth can, on occasion, be entirely disregarded without injustice resulting.
In this book we are dealing with that abrupt reversion of the course of human progress which began in 1914 and which the present author writing in 1946 labelled “the advance to barbarism”. From this point of view the introduction of war-crimes trials in 1945 was only the last phase of this reversion, a phase which followed naturally from the phase of wholesale terror-bombing and genocide which preceded it. It would be out of place to attempt to describe here the course of the Nuremberg Trials or of the other war-crimes trials which followed them. Voluminous details of these proceedings can be found in the official records and several books have already been written devoted to one or other of these so-called trials.1 Less horrible indeed, but owing to the smug self-satisfaction of those who conducted them, war-crimes trials described in detail make almost as repulsive reading as accounts of the doings in such concentration camps as Auschwitz or descriptions of one of the terror raids carried out in accordance with the Lindemann Plan. War-crimes trials, genocide and terror-bombing were alike symptoms of the same world-wide reversion.
Indisputably a war conducted in the spirit in which the Second World War was waged was bound to end in the putting to death of the leaders of the vanquished in the event of either side succeeding in forcing the other to surrender unconditionally. This putting to death might well have been a swift, crude and informal process. The method actually adopted was the result of the combined effect of a number of quite fortuitous circumstances. For reasons of political expediency no spectacular mass war-crimes trial of the Italian leaders was ever staged, and if Stalin immediately after the Yalta Conference had dropped the pretence of being a loyal ally and disclosed his real ambition to subjugate the whole of Europe, it is most unlikely there would ever have been a mass trial of the surviving German political and military leaders. At most, prosecutions would probably have taken place of prisoners notoriously responsible for specific crimes against humanity. Guilt in such cases would have been proved in accordance with the accepted rules of evidence. There would have been no occasion to invent new crimes in order to provide an excuse to punish them retrospectively. And, of course, it would have occurred to no one to bring obviously fictitious charges such as those brought at Nuremberg against the German naval leaders, Grossadmiral Raeder and his successor, Gross-admiral Dönitz.
Apart from the attempt made by the present writer in the little booklet entitled Advance to Barbarism published in 1948, no attempt has ever been made to explain why such elaborate and cumbrous means were adopted in 1945 to dispose of captured enemy leaders. Investigation will show that war-trials were initiated as a compromise between two entirely irreconcilable points of view.
When, at last, the end of the war came in sight, there was naturally worldwide speculations as to the conditions of the coming peace. In 1918, the question had been merely how exactly certain well-defined principles should be carried into effect: a quarter of a century later, all principles had been specifically repudiated, so that the public imagination had an absolute free rein. It was generally agreed that a demand for reparations based on the legal maxim “costs follow the event” would be out of place at the end of an orgy of violence, and that the victors should act on the assumption that victory had automatically vested all enemy property in them. There was also general agreement that Adolf Hitler and the members of his Government should be punished by death, although the expectation was that, when further resistance became impossible, they would follow the advice of Brutus:
“Our enemies have beat us to the pit:
It is more worthy to leap in ourselves
Than tarry till they push us.”
In primary warfare between civilized states and barbarian invaders, this course has usually been adopted. Thus, in the thirteenth century when China was being overrun by the Mongol hordes of Genghis Khan and his successors, the Chinese leaders invariably killed themselves and their families rather than fall into the hands of the savages. The Chinese persisted in this practice long after the unrestrained ferocity of Mongol methods of warfare had become considerably tempered by contact with civilized nations. It is recorded that Kublai Khan, the grandson of Ghengis Khan, resenting his troops being still regarded as savages, ordered his generals, when a city was captured and the Chinese leaders were found to have committed suicide, personally to visit the bodies in order to demonstrate by a public act of respect that the Mongols had become a civilized people.
The question of the treatment to be accorded to prominent Germans after the downfall of the Third Reich, seems first to have been mentioned publicly at the Teheran Conference in November 1943. Elliott Roosevelt, the son of the American President, was present at a banquet given by Stalin at the conclusion of the Conference and, three years later, published a very frank account of what passed in his presence between his father, President Roosevelt, Mr. Stalin and Mr. Winston Churchill.2
According to Elliott Roosevelt, this topic was first broached to everyone’s surprise by Stalin at the end of a magnificent banquet at which, Elliott tells us, Stalin had partaken of vodka, “100% proof”, while Mr. Churchill “had stuck to his favourite brandy”. Rising to propose “the umpteenth toast” Stalin said, “I propose a salute to the swiftest possible justice for all of Germany’s war criminals—justice before a firing squad. I drink to our unity in dispatching them as fast as we capture them, all of them, and there must be at least 50,000 of them.”
These words appear to have roused something in Mr. Churchill—perhaps a remembrance that he was a European and the only prominent European present. “The British people,” he declared roundly, “will never stand for such mass murder! I feel most strongly that no one, Nazi or no, shall be summarily dealt with before a firing squad, without a proper legal trial!”
Thus began the first exchange of views on the then startling and seemingly original suggestion that, after a victory, there ought to be a grand massacre of the vanquished. It must be stressed that Elliott Roosevelt does not suggest or hint that one of Mr. Churchill’s eyelids flickered humorously when he used the word “trial”. On the contrary, he says that Stalin’s proposal caused Mr. Churchill to lose his temper hopelessly. The warmth of the British Prime Minister’s feelings, he says, amused Stalin, who seemed “hugely tickled”, and surprised everyone present including Anthony Eden.3 In fact, so exaggerated did his reaction seem over a suggested mass murder of 50,000 persons, that Elliott is reduced to hinting in his book at an extraneous cause for Mr. Churchill’s “mounting fury”. Far from suggesting Mr. Churchill’s indignation was simulated, the whole incident is narrated expressly to contrast the antiquated, pedantic, unreasoning prejudices of the British Prime Minister with the broadminded, man-of-the-world outlook of his father, the President, the crude simplicity of Stalin, and his own consummate tact in an awkward moment.
According to his son, the American President had hidden a smile when this proposal to mass-murder 50,000 Europeans was made. “Perhaps,” he remarked genially, “we could say that instead of summarily executing 50,000 we should settle on a smaller number. Shall we say 49,500?”
Elliott Roosevelt hoped that, with this delightfully humorous observation, the subject of mass murder would be allowed to drop, but Stalin stuck to his point and appealed to Elliott for his own views, thus presenting him with a golden opportunity to display his diplomatic tact.
“Isn’t the whole thing pretty academic?” Elliott tells us that he replied. “Russian, American and British soldiers will settle the issue for most of those 50,000 in battle, and I hope that not only those 50,000 war criminals will be taken care of, but many hundreds of thousands more Nazis as well.”
Elliott’s answer pleased Stalin: “Stalin was beaming with pleasure. Around the table he came, flung an arm around my shoulders. An excellent answer! A toast to my health! I flushed with pleasure.” It failed, however, to please Churchill. “He was furious, and no fooling.”
There is, of course, no obligation to accept Elliott’s story as an accurate objective account of what took place that evening at Teheran, since it is obviously written to glorify President Roosevelt’s statecraft, urbanity, and tact at the expense of Mr. Churchill, whom Elliott evidently disliked heartily. Still, in its main outlines, no doubt, Elliott’s story should be accepted as approximately accurate. The contrast which he draws between the European attitude and the American attitude rings true. Mr. Churchill’s alleged behaviour would have been quite natural in the circumstances in which he found himself—as a European, he was in a false position, knew it, and the knowledge frayed his nerves. Intending to caricature Mr. Churchill, Elliott Roosevelt has drawn a picture of him which will be much more acceptable to Mr. Churchill’s admirers in the future than the picture which Elliott at the same time drew of his own father will be to the latter’s admirers, or to the latter’s European admirers at least.
What Elliott Roosevelt says took place at Teheran is entirely consistent with what we all know took place later. At Nuremberg, the proceedings were outwardly European, but throughout the driving force behind them was Russia. At Teheran, Stalin proposed a mass murder of 50,000 persons—a round figure. President Roosevelt suggested that Mr. Churchill’s objection might be overcome by reducing the mass murder by five hundred—another round figure. Elliott Roosevelt, thereupon, expressed the hope that the number of victims would, in fact, be increased to hundreds of thousands—that is to say, substituting an indefinite figure for a round figure. Finally, the subject was dropped as “academic”. So long as a sufficient number of victims died, preliminary procedure was not worth quarrelling about. The result was a compromise by which all three parties carried their points. Ultimately, the American solution was carried out; Mr. Stalin had his mass murder and Mr. Churchill his trial.4
When the first edition of this book was published in July, 1948, no other record of this memorable episode of the Teheran Conference existed than that of Elliott Roosevelt. In the British Press at the time his version was by common consent dismissed as inherently improbable. In 1948, the illusion was still rigidly maintained in Great Britain that Stalin was inspired by the same lofty principles by which Mr. Roosevelt and Mr. Churchill were supposed to be inspired. It was therefore held to be unpatriotic even to mention that Elliott Roosevelt had attributed so outrageous a proposal to a hero who was considered to have atoned for a murky past by his noble conduct during the war. Although Stalin had of late been acting strangely, as one of the leading figures in the great and glorious anti-Nazi crusade, he was still entitled to claim that his loyal allies should disbelieve any facts to his discredit.
Six years after the publication of Elliott Roosevelt’s version, however, an alternative account of this episode has become available from the pen of Mr. Winston Churchill himself, in the installment of his war memoirs entitled Closing the Ring (1952). True, Mr. Churchill complains that Elliott’s version is “highly coloured and extremely misleading”, but, in fact, his own version confirms Elliott’s account of the essential point of the story. At this banquet at Teheran, Mr. Churchill says that Stalin pointed out that Germany’s strength depended upon 50,000 officers and technicians and, if these were rounded up and shot, “German military strength would be extirpated.” In spite of Mr. Churchill’s indignant protest, however, these 50,000 must be shot, Stalin insisted.
The two versions therefore agree that a massacre of 50,000 persons when victory was achieved was proposed by Stalin at the Teheran Conference but, whereas Elliott says these 50,000 were to be “war criminals”, Churchill says they were to be the officers and technicians upon whom Germany’s strength depended.
On the latter detail—a significant detail certainly—Mr. Churchill’s version is greatly to be preferred. What Stalin clearly had in mind was a massacre similar to the Katyn Forest Massacre which the Soviet authorities had carried out only three and a half years before. Except that it would have been on a far greater scale, what Stalin proposed when German resistance should be overcome, was a massacre which would have served the same purpose and have had the same justification as the Katyn Massacre—these German officers and technicians, like the Polish victims at Katyn, were members of a class which was unassimilable by Communism. As a Marxist it was natural that Stalin should frame his proposal in the way in which Mr. Churchill says he framed it. It was equally natural that Elliott Roosevelt, knowing nothing of Marxian ideology, should quite guilelessly have assumed that Stalin must have intended to propose the mass execution of criminals, and so, without intending to mislead, he interpreted Stalin’s words in his own bourgeois phraseology.
Although conflicting in several other details, the version of Elliott Roosevelt regarding the issue which caused such sharp dissension at Stalin’s alcoholic orgy at the Teheran Conference is in essence confirmed by the version of Mr. Churchill. His habitual surly reticence mellowed by drinking repeated toasts in neat vodka, Stalin proposed that victory should be celebrated by an initial massacre of 50,000 Germans. Mr. Churchill, speaking as a civilized European, retorted indignantly that such a massacre would be mass murder to which he would never consent unless the victims wet first given a trial.
It is fortunate that this incident has been recorded in such detail by two independent witnesses whose testimony is on the essential point so exactly in agreement. From their joint testimony it is possible to state with certainty that to this brief but angry altercation between two elderly men, one of whom had been drinking “umpteen toasts” in vodka and the other in brandy, can be clearly traced the first conception of war-crimes trials, a conception later solemnly upheld and defended by many leading jurists of learning and renown as the most brilliant innovation in the administration of swift and certain justice conceived in modern times.
No doubt Stalin spoke without due regard to the bourgeois prejudice against mass murder, and it happened that this bourgeois prejudice was particularly strong in the British delegation to the Teheran Conference owing to the fact that a mass murder of outstanding enormity had recently been engaging the attention of the British Foreign Office. When Hitler invaded Poland from the west in September 1939, Stalin immediately invaded Poland from the east. Over 200,000 Polish troops surrendered to the Russians and were sent to various prisoner of war camps in the interior of Russia, the officers to the number of some 15,000 being sent to three camps near Smolensk. When Hitler invaded Russia in June 1941, it was naturally decided to arm and equip these Polish prisoners and to form a Polish army under Russian command. The discovery was then made that the officers had disappeared without trace; nothing had been heard of any of them since April 1940. The Soviet Government was, however, blandly reassuring; the missing men would be quickly found and released. For nearly two years the British Foreign Office, under constant pressure from the indignant Poles, sent repeated appeals to the Soviet Government to expedite this pretended search. Stalin, appealed to personally, declared that the search was being extended to the remotest parts of the Soviet Union including Nova Zembla in the Arctic Ocean. At last, in April 1943, the bodies of 5,000 of the missing men were found by the Germans in a huge grave in the Katyn Forest near Smolensk, an area by that time in German occupation. Each had been murdered by a revolver shot in the back of the head. The circumstantial evidence as to their fate in the possession of the British Foreign Office was overwhelming; they had been in Russian custody when last heard of alive in April 1940, and the Russian authorities had shown guilty knowledge of their fate by giving lying and contradictory explanations of what had occurred. When, therefore, the British delegates set forth for the Teheran Conference in November 1943, only six months after the discovery of the bodies, the subject of the Katyn Forest Massacre was fresh in their minds. When Stalin found himself an ally of Great Britain as a result of the German invasion, they had done their best to convince themselves that as a consequence his character and the character of his regime had undergone a miraculous reformation. This delusion was abruptly shattered when, at the Teheran Conference, Stalin announced his intention to massacre 50,000 German soldiers and technicians. Obviously he had not changed in the least since the days when he had taken a leading part in the Red Terror following the Russian Revolution in 1917. Naturally Mr. Churchill who for thirty years, had been exposing in the strongest terms the character of the Communist regime in Russia, reacted strongly to Stalin’s proposal.
In passing it may be noted that the memory of Katyn Forest Massacre which had caused such heated dissension at the Teheran Conference two years later acutely embarrassed the Nuremberg Tribunal. With breathtaking effrontery the Soviet Government insisted that among the charges brought against the captured German leaders should be a charge that the Katyn Forest Massacre had been perpetrated by the Germans!
Vainly Stalin’s allies expostulated with him, pointing out that it would make the judges on the Tribunal look ridiculous if they were forced to consider charges which everyone in court would know were fictitious, since the real culprits had long been known by everyone. Stalin remained adamant for reasons which to this day are obscure. Probably to the Red Dictator’s macabre sense of fun those who for a year had to sit through the Nuremberg proceedings are indebted for one episode which certainly had a humorous side, however exasperating it must have been to the presiding judges.
It was, of course, extremely tactless of Stalin to recall to the minds of the British delegation to the Teheran Conference the painful subject of the Katyn Forest Massacre by proposing a similar massacre on a much larger scale of German prisoners. Presumably he had forgotten that only a couple of years before he had personally assured the Polish Ambassador and General Anders, the Polish Commander-in-Chief, that the intensive search for the missing Polish officers had been extended to Nova Zembla. Stalin should surely have assumed that the British delegates, and particularly the Foreign Secretary, Anthony Eden, must feel some resentment for being duped so long and so outrageously. For nearly two years the British Foreign Office had been kept busy passing on various mendacious explanations received from the Kremlin to the Polish exiled Government in London. Anthony Eden had had to profess a belief in these explanations so that when at last the truth came to light he knew that he must be set down by the Poles as a credulous fool. In the circumstances, therefore it is difficult to maintain that this unnecessary reference to the Katyn Forest Massacre reflects less credit on Stalin’s diplomacy than on his sense of humour.
On the other hand, infamous as Stalin’s artless proposal seemed to Mr. Churchill, it was strictly in accordance with orthodox Marxian theory. As the main driving force throughout the proceedings at Nuremberg came from the Soviet Government, to understand these proceedings it is imperative to understand the Marxian viewpoint with regard to the liquidation of political opponents. A great deal of nonsense has been talked in capitalist circles, partly deliberately and partly from ignorance of Marxian ideology, concerning the liquidation of individuals and classes by Communist authorities. The raison d’être of a Communist government, according to Kari Marx, is to build up a proletarian system of society. When persons or classes of persons are found who cannot be fitted into such a society, they are “liquidated”, that is to say, put to death. No more question of justice enters into the matter than when, for example, a botanist who is trying to establish a new variety of flower with certain qualities of colour, height, shape of petals, etc., by selecting specimens possessing the desired qualities, ruthlessly throws aside those specimens lacking those qualities. If he is seeking a variety with, say, a long stem, he has no intention of punishing short-stemmed specimens when he tears them up and discards them. Now, obviously, a man like Hermann Göring could not be made to fit into a proletarian system of society. What else, therefore, could be done with him but eliminate him? No question of punishing him enters into the matter. In fact, in the abstract, a Communist might even admire him as an individual in the same way as one might admit that a lion roaming about Piccadilly Circus was a noble animal, a masterpiece of nature produced by ages of evolution which was only devouring people in accordance with its perfectly natural instinct. One might become lyrical concerning its courage and beauty and yet quite reasonably maintain that there was no alternative to removing by violence a creature which would obviously be a disturbing influence to the human life around it. In this entirely passionless spirit, Lenin and Dzerzhinsky had eliminated the aristocratic and plutocratic classes of Czarist Russia together with tens of thousands of Orthodox bishops and priests after the Revolution of 1917. To complain that many innocent persons perished in the Red Terror is entirely to miss the point. The great majority perished, not because they were deemed guilty of any particular offence, but because they could not be assimilated by the new proletarian state then being created.
It must surely be conceded that Hermann Göring and his colleagues had demonstrated that they were opponents of Communism. This being so, no further argument or justification was needed. How could they expect a different fate from that which, for example, had recently overtaken the anti-communist classes of such tiny and inoffensive states as Esthonia, Latvia, and Lithuania, when these states were overrun by the Soviet armies in 1939?
When, therefore, Mr. Stalin suggested at Teheran that the German leaders should be shot by a firing squad, as and when captured, he was speaking with the strict orthodoxy which might be expected from one upon whom the mantle of the great Lenin had descended. As an Asiatic, Stalin was also, of course, following faithfully in the tradition of Genghis Khan, Hulagu, and Tamerlane.
Unfortunately, from the point of view of the ultimately predestined victims, this simple, logical, expeditious and even humane solution did not appeal to Mr. Stalin’s allies. If Hermann Göring would be an anachronism in a proletarian paradise, so, equally, would Mr. Churchill and Mr. Roosevelt. These gentlemen could hardly subscribe to the view that the liquidation of Hermann Göring was merely a matter of biological selection—the elimination of an unwanted type. Possibly, it was this humorous aspect of the matter which caused Mr. Stalin’s eyes to twinkle so merrily. Further, in capitalist societies, the conventional practice demands that before a man can be done to death, he must be accused of something, tried, and pronounced guilty. The Soviet Government proved most accommodating: so long as liquidation was reached in the end, it was of no consequence what preliminary judicial fooleries were indulged in to satisfy capitalist susceptibilities.
An obvious alternative to the carrying out of Mr. Stalin’s proposal for a summary mass-slaughter on the lines carried out by the medieval Mongols, was a mock-trial along the lines which may be said to have originated, or at least to have been perfected, during the preceding twenty years in Soviet Russia. But disposal by mock-trial was a conception both novel and repugnant to contemporary. European juristic thought. Finally, as a compromise, it was decided that the prisoners should be charged with certain specific offences, that the changes should be heard by a tribunal composed of representatives of the four chief victorious Powers, and that the prisoners should be heard in their own defence in accordance with normal practice, excepting only they should be debarred from challenging the jurisdiction of this tribunal to try them, and at their trial the rules of evidence should be suspended.
As supremely able opportunists, neither Mr. Roosevelt nor Mr. Churchill was interested either in the theoretical justification for this solution or in the consequences which, in the fullness of time, must inevitably flow from it. His cheerful acceptance of the Morgenthau Plan5 shows that Mr. Roosevelt felt no compunction at the idea of reducing, by systematic looting and sabotage, a prosperous industrial state of eighty million inhabitants to a defenceless and poverty-stricken agricultural community. Why then should he shrink from the proposal to put out of their misery by shooting some 50,000 individuals, some of whom may not have deserved much of their fellow-men? As a practical politician, his natural inclination was towards ruthless measures which, it might be safely assumed, would be welcomed by several very powerful sections of the American electorate as a reprisal for the ruthless anti-Jewish and anti-democratic policies of the Nazi Government. He was also deeply concerned to prevent any difference of opinion between his cantankerous allies standing in the way of victory.
On his part, Mr. Churchill’s sole concern was to avoid anything which might weaken the joint war effort. Unlike the President, he entertained no fatuous illusions concerning the Communist rulers of Russia: for over twenty years he had been denouncing them as “bloody baboons”, “crocodiles with master-minds”, and as “the foul, filthy butchers of Moscow”. But not least among his many gifts was a remarkable capacity to dismiss from his mind previously expressed opinions, if the occasion and expediency required it. Two years before he had convinced himself that no price—not even the dissolution of the British Empire—was too high to pay to achieve victory. This unsatisfactory compromise with Stalin seemed in comparison a very small concession. His mind had always been the exact opposite to the judicial: he knew nothing and cared less about the legal difficulties in the way of a trial in which the victors would sit in judgment and decide their own charges against the vanquished. No doubt, he had genuinely convinced himself at the moment that Hitler and his colleagues were guilty of abominable crimes. Should they escape punishment through the lack of a court with jurisdiction to try them? With a score of urgent problems demanding his immediate attention, was it not natural that Mr. Churchill should dismiss the subject with the reflection that, when the time came, it should not be beyond the capacity of his legal advisers to work out a scheme for the proposed trials which would be free from technical objections and, while upholding the proud traditions of British justice, would satisfy Mr. Stalin by providing for the liquidation of many prominent opponents of Communism, and would satisfy Mr. Roosevelt by assuring for him and the Democrat Party a solid bloc of gratified voters in doubtful states at the next Presidential Election?
It need hardly be added that it occurred to no one at Teheran to suggest that all persons, whatever their nationality, accused of committing crimes during the war, should at its conclusion be put on trial. How Mr. Churchill would have flared up at any such suggestion can be deduced from his heated reaction at Yalta on February 9, 1945, when the question arose of establishing trusteeships for backward peoples. According to notes taken then by Mr. James F. Byrnes, Mr. Churchill declared:
“After we have done our best to fight in this war and have done no crime to anyone I will have no suggestion that the British Empire is to be put into the dock and examined by everybody to see whether it is up to their standard. No one will induce me as long as I am Prime Minister to let any representative of Great Britain go to a conference where we will be placed in the dock and asked to justify our right to live in a world we have tried to save.”
It should not be overlooked that, when the term ‘war-criminal’ was used at the Teheran Conference in 1943, it was a legal term long recognised with a precise and definite meaning. A ‘war criminal’ was one who had committed a ‘war crime’, and a ‘war-crime’ as defined in the military manuals of all civilized countries, was a breach of the rules of civilized warfare, that is to say, a breach of those rules adopted at the end of the seventeenth century by the European nations for the conduct of their wars with each other. It comprised such matters as the ill-treatment of prisoners, hostilities committed by individuals not being members of the armed forces, espionage, and looting. The term was strictly limited to specific acts committed in the conduct of a war; it was never applied to the aims and objects of those responsible for commencing a war, however indefensible these might be.
Eighteen months were to pass before the compromise agreed upon at Teheran could be put into effect but, in due course, the Law Officers of the Crown received instructions to consult with the American, Russian, and French legal authorities, in order that a plan might be prepared for the trial of the German leaders after unconditional surrender had taken place. For learned and experienced lawyers, the task was both invidious and thankless. It was invidious because it entailed setting at naught the principles in which they had been trained throughout their professional lives. It was obvious that only a small proportion of the prisoners were war-criminals according to the accepted definition of the term. The only way out of the difficulty was to create new offences and then to assert that anyone who had in the past committed these new offences should be deemed a war-criminal. Retrospective legislation has always been abhorrent to lawyers and it must, in consequence, have been particularly distasteful to the learned Law Officers of the Crown to frame charges alleging that criminal acts had been committed before these acts had been declared crimes. Even more distasteful must have been the necessity of giving effect to the decision of the politicians that at the coming trials “the tribunal should not be bound by technical rules of evidence” but could admit “any evidence which it deemed to have probative value,” that is to say, might help to support a conviction.6
Obviously, this innovation, if regarded otherwise than as a temporary expedient to secure convictions, would place lawyers generally in an embarrassing dilemma. The accepted rules of evidence had been gradually established through the centuries with the express purpose of arriving at the truth of a charge with as much certainty as was humanly possible. Regarded in this light, the rules of evidence had, for hundreds of years, been jealously guarded by the courts of law in England and America. Did this decision to dispense with the rules of evidence entail an admission that these rules did not really help in arriving at the truth? But, in that event, these rules should obviously be declared obsolete and abolished henceforth in all courts of law. The only possible alternative to this far-reaching and, to lawyers, painful conclusion was that, although the rules of evidence were still necessary for arriving at the truth in all judicial trials, yet in a trial of a prisoner of war by his captors they were out of place, since in such a trial the object was not to ascertain the truth but to secure a conviction.
Naturally, no professional lawyer is willing to admit that the truth in a normal judicial trial could just as readily be ascertained without the rules and safeguards which centuries of experience have proved so necessary. On the other hand, it was imperative to repudiate at all costs the suggestion that there was a fundamental distinction between a judicial trial and the trial of a prisoner of war by his captors.
For months, the eminent lawyers instructed to prepare for the trial of the German leaders struggled with their task which, as above remarked, was not only invidious to them as lawyers but entirely thankless, since in the eyes of the man-in-the-street the task presented no difficulties whatever. Who could doubt the guilt of the German leaders when the Press and the Radio unanimously asserted it! That the persons whom it was proposed to try were criminals, even before the charges against them had been decided, was as clear to the man-in-the-street as it was to Dr. Garbett, the Archbishop of York, who on March 20, 1945, in an outburst of enthusiasm, explained to the House of Lords: “It is for the sake of justice, for the vindication of that underlying sense of the difference between right and wrong, which makes us demand that these criminals should receive their punishment.”
What need was there, in such circumstances, for complicated arrangements and technicalities? What better precedent could be adopted, slightly adapted perhaps to comply with present-day susceptibilities, than that provided in 1539 by that great English man King Henry VIII, equally distinguished as a pious defender of the faith, and as a tireless wielder of the sword of justice. Having detained the aged Richard Whiting, Abbot of Glastonbury, in the Tower for many months without preferring any charge against him, Henry at length decided it was time that “the criminal should receive his punishment” for which purpose he should be returned to his native Somerset. The order to His Majesty’s judges has been preserved; it is in the handwriting of Henry’s chief minister, Thomas Cromwell, and reads:
“The Abbot of Glaston to be tried at Glaston and also executed there with his complycys. See the evidence be well sorted and the indictments well drawn.”
It must be acknowledged that this direction is a model of brevity and lucidity. The stupidest judge could have been in no doubt as to what was required of him. A slight but unmistakable note of menace may be detected in the last sentence and we may be sure that the evidence was “well sorted” and that there was no slipshod work in the drawing of the indictments. In fact no hitch of any kind delayed the fulfilment of the royal wishes. Very shortly afterwards, on a grey November morning, the underlying sense of the difference between right and wrong was vindicated by the hanging, disembowelling and quartering of Abbot Whiting “and his complycys” on Glastonbury Tor.
Possibly the promoters of the Nuremberg trials were unfamiliar with this striking Tudor precedent: or perhaps they rejected it as too simple for service at the present day. At all events, the unfortunate lawyers were directed to ransack the pages of history for more modern precedents. No doubt in their search they came across and noted with approval the dictum of Oliver St. John, the Solicitor-General, during the debate in the Commons preceding the judicial murder of Thomas Wentworth, Earl of Strafford, in 1641: “No evidence is necessary if each man feels in his mind that the accused is guilty.” And St. John provided a precedent for the Nuremberg distinction between the victors and losers in the war by his statement that: “We give law to hares and deer because they be beasts of chase, it was never accounted cruelty or foul play to knock foxes and wolves on the head as they can be found, because they be beasts of prey”.
The only really recent precedent which existed for the proposed proceedings at Nuremberg were the various political mock-trials which had taken place in Russia from the Revolution in 1917 onwards. It is, therefore, necessary to glance briefly at these mock-trials in Russia in order to realise how widely they departed from judicial trials in other countries and to consider to what extent they differed from the procedure later adopted at Nuremberg.
In a normal judicial trial, the result depends on the impartial judgment of independent third parties no more connected with the prosecution than with the defence. In a political trial in Soviet Russia, on the other hand, the judges and the prosecuting counsel together form a team; the proceedings are an act of state, and the result is a foregone conclusion. Neither the victim nor the prosecution are concerned with the figures duly arrayed as judges on the bench. The role of the latter is purely ornamental: their only active part is to read, when all is over, the judgment and sentences previously decided upon by the executive government. The speeches for the prosecution are political manifestoes, designed to justify the action of the government in instituting the proceedings and are directed, not to the Court, but to the outside public. At times, even a communist dictatorship must justify its actions to its subjects. Thus, in 1936, when it was decided to liquidate Zinoviev, Kamenev, Smirnov, and other prominent Soviet leaders whom the Russian public had long been taught to revere as heroes of the revolution, some kind of explanation for a political somersault of this magnitude had to be offered to the man-in-the-street. It was found that the most convenient manner of putting forward such an explanation was in the form of a speech for the prosecution, delivered after dictated confessions of guilt had been recited by the accused and before the death penalty had been recited by the Court. In normal mock-trials, all other roles are ancillary to that of the public prosecutor. The judge is a mere lay figure who recites a few set words when all is over.7 Occasionally, as at the mock-trial of the G.P.U. chief, Henry Yagoda, charged with the murder by poison of the novelist Maxim Gorky, the judge enlivens the proceedings by what in the parlance of the music halls is termed “gagging”. But “gagging” by judges in a normal mock-trial is exceptional and irregular and is tolerated only as a relief from the tedium of long proceedings or when the public prosecutor fails to put over the Government manifesto as well as might be desired.
It would be futile to attempt an enquiry whether Stalin really believed, for example, that Yagoda was guilty of the crimes of which he was accused. That Yagoda was guilty of countless crimes there can be no doubt—Mr. Stephen Graham calls him “the worst villain of the Revolution”8—but it is difficult to see what motive Yagoda could have had to finish off by poison a septuagenarian novelist already dying of senility. Probably Stalin troubled himself very little on the point, on which he may have had no definite opinion. To him it was merely a matter of routine practice that a G.P.U. chief, discarded as no longer useful to the regime, should be liquidated.
In Russian Purge9 the authors, themselves prominent Soviet citizens who were victims of the Great Purge of 1936-1938 but escaped with their lives, express surprise that the delusion should persist in the West that, in Soviet Russia, there exists any necessary connection between a man’s arrest and any particular offence alleged against him. In the vast majority of cases, persons were arrested during the Purge for having “objective characteristics” which means, in Marxian legal jargon, that they belonged to one or another of a dozen categories which the executive government had decided “as a measure of social security” to eliminate or suppress. The precise charge, bringing these unfortunates within the Soviet Criminal Code and on which, in due course, they would be sent to a term of forced labour or to execution, was decided much later. In the United States and in Great Britain, the functions of the judiciary and the functions of the executive are kept rigidly distinct. But, under Soviet law, the executive exercises the widest judicial powers. The vast majority of political prisoners are dealt with by the executive; only one case, here and there, is passed on to the judiciary for what is called in the above-mentioned book “a show trial”. In these cases, the duty of the judiciary is limited in practice to rubber-stamping, for propaganda purposes, the judgment of the executive government.
Handicapped, on the one hand, by their own legal learning and, on the other, by their profound ignorance of Marxian ideology, the English and American judges were pained and puzzled by the Alice-in-Wonderland atmosphere which, as a result of the dual character of the proceedings, prevailed at Nuremberg and which they strove in vain to dispel. Yet nothing, in fact, could have been simpler or more logical than the Marxian attitude to the trial. The prisoners were members of a political party established by Adolf Hitler for the express purpose of combatting Communism. Their “objective characteristics” could not, therefore, be in dispute. No punishment was called for in such a case but the exercise of “the supreme measure of social security”, which in Marxian terminology means the carrying out of a sentence of death.
It was easy enough for the politicians to agree that the war should end with a liquidation, in accordance with Marxian ideology, of all persons with undesirable objective characteristics, preceded, however, by a trial in accordance with established principles of justice. It would, however, be hard to exaggerate the difficulties which faced the lawyers entrusted with the task of devising a procedure which would carry out this agreement. Lawyers instinctively turn to precedents for guidance, but intensive searching of the legal records of ancient and modern times disclosed no exact precedents, but only a few cases containing helpful suggestions. Of these it could at least be claimed that the prosecution, conviction and execution of the Persian satrap, Bessos, by Alexander the Great at Zariaspa in Bactria in 329 B.C. was a precedent of classical antiquity.
Bessos was a Persian patriot who led the last resistance to the victorious Macedonians after the overthrow of King Darius at Arbela. Having been subjected to various tortures, and having had his nose and ears cut off as a pre-conviction punishment, Bessos was condemned to a formal trial. Alexander the Great assumed the role of prosecutor and delivered an eloquent speech demanding conviction. He then assumed the role of judge, declared himself convinced by his own arguments and sentenced the unfortunate Oriental to a death by torture. In A.D. 1945, the case of Bessos in 329 B.C. was triumphantly cited by eminent jurists as an authority for the contention that an accuser was a fit person to act as judge of his own charges. Until the close of the Second World War it had not indeed occurred to anyone to attach significance to this episode in the life of the great soldier and conqueror which had been generally regarded by his biographers as a discreditable lapse revealing the latent streak of savage cruelty in his character. Admirers of Alexander have always contended that he was prone to histrionic gestures and that there is no reason to doubt that he sincerely believed Bessos was a villain richly deserving severe punishment. With complete sincerity and characteristic vanity he was convinced that no one could plead for a conviction more forcibly than himself, and no one could more ably discharge the duties of a judge or find a penalty more neatly fitting the crime.
Whether or not the trial of Bessos can be regarded as a precedent justifying the trial of the German leaders after the Second World War, it must be conceded that it contained all the essential characteristics of the “war-crimes trial” as practised in recent times. It is distinguishable on the one hand from the ancient mock-trial in which the victim suffers as a symbol for the shortcomings of his race or party, and on the other hand, from the mock-trial of the type which evolved in Russia after the Bolshevik Revolution and which, as explained above, is in essence a political manifesto by the party in power expressed for convenience or effect in the form of a trial at law.
Having discovered a trial in the year 329 B.C. which could be plausibly cited as a precedent for the trial which the chiefs of state at the Yalta Conference had decided should take place before the liquidation of the captured German leaders, the eminent British, French and American lawyers entrusted with the task of making the necessary arrangements searched in vain the records of the following two thousand years for another helpful precedent.
In deference to French public opinion it was clearly inexpedient to cite the trial of Joan of Arc in 1431. In any case the nature of this trial and the form in which it was conducted distinguished it sharply both from a symbolic mock-trial and from a war-crimes trial of the Bessos type, although the English Government had undoubtedly decided beforehand that the outcome of the proceedings must be the death of the prisoner. The question which faced the English Regent, the Duke of Bedford, was in fact exactly the same as that which faced the chiefs of state at Yalta five hundred years later. Three courses were open to him. A majority of the Great Council of England recommended that when she had been purchased from her captor, the Duke of Luxembourg, she should be sewn in a sack and surreptitiously dropped in a river. If that course had been adopted Joan would now only be remembered as a peasant girl who, according to popular belief at the time, had played the leading part in the relief of Orleans in 1429. Alternatively he could have ordered her to be tried on a charge of war-crimes by a selection of the disgruntled warriors who had fled before her at Patay. The Regent, however, decided to take advantage of Joan’s capture to stage what would now be called a propaganda stunt. In the 20th century it has become customary to regard a successful political opponent as a criminal; in the 15th century it seemed natural to ascribe one’s defeats to the use of witchcraft. So the Regent decided to hand Joan over to an ecclesiastical court presided over by the Bishop of Beauvais in whose diocese she had been captured, there to be tried on charges of “divers superstitions, false teachings and other treasons against the Divine Majesty.”
Although useless as a precedent, the trial of Joan of Arc provided the team of lawyers preparing in 1945 for the trial of the captured German leaders with many valuable lessons. In 1431 the Regent decided that the prisoner should be tried by an independent tribunal over which he could exercise no direct control. The ecclesiastical court which tried Joan of Arc was in theory at least far above mere political considerations and acted in accordance with an elaborate and well-established system of law, clarified by copious precedents, which for centuries had been accepted by every Christian country. No question arose, therefore, as at Nuremberg in 1945 of inventing a novel system of law in order to establish breaches thereof. Also the jurisdiction of the court to try her on charges of offences against God, and the accepted beliefs and morality of Christendom could not be challenged. It is unnecessary to speculate here as to what the English Government might have done if this ecclesiastical court had acquitted her and ordered her release. The court convicted her, largely on her own admissions, on the charges brought against her. As Bernard Shaw says in Saint Joan: “She was condemned after a very careful and conscientious trial.”
While it convicted the accused, however, the ecclesiastical court did not bring in exactly the verdict which the Regent’s policy required. In place of public burning as “a Heretic, Relapsed, Apostate, Idolatress”, she was sentenced to life imprisonment. As Lenin once said: “Who troubles about imprisonment when a change of fortune may bring swift release?” As a result of his decision to have Joan tried by an independent court, the Regent Bedford failed to get the judgment he desired. In order to achieve his purpose he had to exercise strong pressure behind the scenes to have the sentence of imprisonment passed by the ecclesiastical court on Joan replaced by a sentence of death by burning at the stake. Evidently the War Crimes Commission in 1945 took this lesson to heart and so avoided the mistake made in 1431. Probably at Nuremberg an impartial court, composed of neutral judges, would have convicted most of the prisoners on one charge or another. Most certainly, however, they would not have rubber-stamped the verdict of guilt already pronounced by the chiefs of state at the Yalta Conference.
One lesson, however, from the records of the past was overlooked by politicians and lawyers in 1945. Almost without exception trials of which the main object is political, whether they be grotesque mock-trials or “careful and conscientious” judicial trials, fail dismally in their two main objects. Instead of discrediting the accused in the eyes of posterity, they bestow on them fame, publicity, interest and sympathy. Not her actual achievements, but the decision of the English Government to bring about her death in a strictly legal, orderly and public manner, established the fame of Joan of Arc, enriched the history of the Middle Ages with their most picturesque figure, gave France a national heroine and ultimately added her name to the Calendar of the Saints.
Similarly, political trials designed to establish for all time the victors’ point of view have the opposite result. If they do not always arouse sympathy for the vanquished, distaste and resentment is inevitably generated against the victors. Self-satisfied rectitude, even when justified, is rarely an attractive spectacle, and moral indignation, when clearly not disinterested, is very liable to be mistaken for hypocrisy.
The latter drawback to political trials was demonstrated in 1648 by the trial of King Charles I by a court composed of his political enemies and having not a shadow of jurisdiction to sit in judgment on him. Few can now read an account of this trial without becoming insensibly influenced in Charles’ favour. The verdict itself, of course, has not the faintest weight with historians. Opinions are still divided concerning Charles; some consider him, in the main, a well-meaning monarch, more sinned against than sinning; others consider him, on the whole, a weak and irresponsible tyrant. No one would dream of quoting the verdict of John Bradshaw and his fellow regicides as having decided the matter.
It had no doubt been hoped that a diligent search of the annals of the Revolutionary and Napoleonic wars would provide authority for the contention that civilized victors have recognised an unescapable duty placed upon them by their victory to punish the shortcomings of the vanquished. But, as pointed out in the chapter of this book dealing with civilized warfare, the victors in 1815 recognised no such duty. Their forbearance, which seems so astonishing at the present day, was certainly not due to any lack of deeds of violence by the vanquished French which could have been made the subject of criminal charges. Marshal Blücher, remembering the ruthless treatment of Prussia by Davout after the battle of Jena, urged with soldierly directness that Napoleon should be shot on capture and the traitor Talleyrand heartily approved. The victorious allies, however, not only refused to countenance such summary treatment of a fallen foe but rejected the demand of the restored Bourbons that Napoleon should be put on trial by a French court for the shooting of the Duc d’Enghien in 1804. During the twenty-three years during which the struggle had raged French armies had overrun all Western Europe from Cadiz to Moscow, and had committed wholesale every variety of violent crime. In Germany, in Russia, and particularly in Spain guerilla bands had harried the French troops with a ferocity hardly surpassed even by the gangs of Partisans which harried the German troops during the Second World War, with the result that equally savage reprisals had been provoked. In particular, Marshal Suchet had made himself notorious while in command in Aragon by the severe methods which he employed to protect the lives of his men from treacherous attacks by armed Spanish civilians. Evidence for a dozen charges against him of having been responsible for war-crimes could easily have been collected and his conviction by a Spanish court would have been a certainty. Nevertheless no action of any kind was taken against him and he was allowed to end his days in honourable retirement.
Between 1815 and 1918 no European war ended with the victorious side finding itself in a position to dictate the terms of peace entirely as it suited them, regardless of the rights of the vanquished. Excessive demands might have provoked intervention by neutral Powers: world opinion had to be taken into account by the victors. All the wars between these dates were wars between individual Powers like the Franco-German war of 1870 or small groups of Powers like the Crimean war of 1854. They all ended with negotiated peace treaties which, because they were negotiated treaties, proved lasting. No precedents for the disposal of captured enemies even of the most shadowy kind were to be found in the records of the wars of the 19th century. It is amusing to note however that if Queen Victoria had been allowed to have her way in 1882 the lawyers planning the Nuremberg trials in 1945 would have been provided with a really helpful precedent. Seventy years before Nasser’s seizure of power in Egypt, another junior officer, Colonel Ahmed Aribi, led a similar revolt against the corrupt rule of the Khedive Ismail, but which ended very differently. To protect the interests of the Christian holders of Egyptian bonds, Alexandria was bombarded, a British army was landed and Aribi Pasha’s troops defeated at Tell-el-Kebir. Aribi Pasha became a prisoner of war and the question then arose what should be done with him.
The Khedive insisted strongly that the prisoner should be handed over to him so that his fate might serve as a lesson for all time to mutinous junior officers—a lesson indeed which, if administered, might have helped three quarters of a century later to keep in order a certain junior officer named Nasser. The decision rested with Mr. Gladstone. Although, as he characteristically expressed it, he “was almost driven to the conclusion that Aribi Pasha was a bad man”, Mr. Gladstone hesitated to hand over the captured officer to the Khedive. Queen Victoria, however, had no doubts whatever on the subject. She was, as she herself put it, “distressed and alarmed” at the mere possibility that “the arch-rebel and traitor Aribi” should escape the fate which he deserved which she “believed everyone, including Mr. Gladstone himself, wished him to suffer.” In the end Mr. Gladstone, in spite of her expostulations, decided to send Aribi into exile in Ceylon. When she was asked to send a personal message to the Khedive to help him soothe the ladies of his harem who were “frantic with indignation” at this leniency, she flatly refused, declaring that the Khedive’s wives “show a right feeling in being frantic” at this display of weakness by the British Government of which she herself “so highly disapproved”.
The lawyers entrusted with the task of preparing for the Nuremberg Trials had, of course, very clear and recent precedents ready to hand in the various “show-trials” (to use Marxian terminology) staged by Stalin during the Great Purge (1936-38). Unfortunately in 1945 it was impossible for them to cite these precedents because a stringent taboo was in force prohibiting all mention of the Great Purge, which, at the time it was carried out, had aroused worldwide surprise, consternation and horror, especially in those Leftist circles in Britain and the United States which regarded the Russian Revolution as a great landmark in the course of human progress. That Stalin should order the death of his closest colleagues, the men who had helped Lenin to Confer the blessings of Communism on the Russian people, was of course entirely consistent with all that was known concerning his personal character. Nevertheless the Great Purge came as a shock to all those who cherished delusions concerning the nature of the Soviet Regime. When Hitler’s invasion of Russia in June 1941 transformed Stalin from a confederate of Hitler into an ally of Britain, it became imperative to expunge from public memory all recollection of what was known concerning him and the grim police state which he had established in Russia. This was successfully accomplished by the invention of the Great Stalin Myth. In place of the ruthless tyrant whose character was finally revealed to the world in 1956 by his successor, Nikita Khrushchev, there was held up for public admiration the benign figure of “Uncle Joe Stalin”, the champion of liberty and lover of all mankind, the loyal ally who was inspired by the same lofty ideals as Churchill and Roosevelt. To preserve public belief in the Stalin Myth it was absolutely imperative that no mention of any kind should be made of the Great Purge.
Deprived of the only set of useful precedents for the coming trials of the captured German leaders, the group of international lawyers preparing for these trials had no choice but to present them as a completely novel departure in the administration of justice. They received with shocked silence General Nikitchenko’s unwelcome assertion that the coming trials to be held in Nuremberg would be merely an adaptation of the show-trials carried out during the Great Purge, and they proceeded to make arrangements which would disguise this fact so far as it was possible. The result of their intensive labours was the production of the London Agreement which was made public on the 8th August, 1945. The details of this remarkable production require brief examination here.
The London Agreement was an agreement between the British, American, French and Russian Governments to establish a body to be called the International Military Tribunal for the trial of “the major war criminals whose offences have no particular geographical location.” No definition was given of the term “major war criminals” except that the right was reserved by each victorious state to try, according to its own laws, any war criminal in its hands for offences committed on its own territory. Attached to the Agreement and forming an integral part of it was a sort of schedule, grandiloquently labelled “The Charter”, which purported to define the powers of the Tribunal and the procedure which it was to adopt.
On the face of it, therefore, the London Agreement was nothing more than a private arrangement between four sovereign states to put on trial captured subjects of another sovereign state. Had the contracting parties been, say, Costa Rica, Nicaragua, Honduras and Salvador, such an agreement would only have been of interest as an indication of how little the elements of jurisprudence were understood in these countries. The fact that the four parties to the London Agreement happened at the time to be the four most powerful states in the world, clearly could have no bearing on the question whether its terms were in accordance with international law. The tribunal which it created was not an international body, except in the sense that more than one state was represented on it. It was simply a gathering of legal officials appointed by four states in accordance with a private arrangement between themselves.
The most important part of the so-called Charter is Article 6, which purports to create two new crimes against international law. The first is labelled, “Crimes against peace”, which it defines as “planning, preparing or waging a war of aggression or a war in violation of international treaties.” The second is labelled “Crimes against humanity”, which it defines as “inhumane acts against any civilian population before or during the war and persecutions on political, racial or religious grounds.”
With regard to the first of these novel creations, the framers of the Charter had abandoned in despair a desperate attempt to define “a war of aggression” without impliedly condemning Russia for her numerous unprovoked attacks on her neighbours, beginning with her attack on Finland in 1939 and ending with her declaration of war on Japan in 1945 in defiance of the Non-aggression Pact which she had signed with the latter country. The chiefs of state at the Yalta Conference had cheerfully convicted their captured enemies of having plotted and waged a war of aggression and set the framers of the Charter the utterly impossible task of defining this alleged offence. Of course they failed. As long before as 1933, Edwin M. Borchard, the famous professor of international law at Yale University, had dismissed the word “aggression” as “an essentially dishonest and mischievous term calculated to mislead the uninformed.”10
With regard to the second novel crime created by the London Agreement precise definition was obviously equally impossible at a moment when the victors were carrying out mass-deportations of populations totalling some fourteen millions and entailing indescribable misery. In most cases these deportations followed wholesale mass-murders carried out in the homelands of the populations condemned to deportation.
It is, perhaps, hardly necessary to comment on the fundamental injustice of inventing an ad hoc law and then bringing charges alleging acts in breach of this law committed before this law existed. In the United States this injustice was widely recognised. As the leading Republican Senator, Robert A. Taft, a politician respected by all parties, pointed out, “It is completely alien to the American tradition of law to prosecute men for criminal acts which were not declared to be so until long after the fact. The Nuremberg Trials will for ever remain a blot on the escutcheon of American jurisprudence.”
However grave and however numerous may be the technical objections which can be raised against it, the London Agreement from a practical point of view was undeniably a very workmanlike production, admirably devised to carry out the purpose which it was intended to fulfil. It left the judges of the International Military Tribunal in no possible doubt as to what was expected of them. It gave them an absolutely free hand.
Thus the vitally important Clause 18 of the Charter empowered the Tribunal “to rule out irrelevant issues and statements of any kind”. By reference to this clause, the Tribunal could not only reject any evidence or submission by the Defendants simply by declaring it “irrelevant”; it entitled the Tribunal to refuse to hear any evidence concerning the background against which the alleged offences of the Defendants were committed. In short, it precluded the Defendants from proving that the acts, now declared criminal, of which they were accused, were concurrently being committed by their opponents. Thus, as we shall see later, Grossadmiral Raeder, in answer to the charge that he had planned the invasion of neutral Norway, was prevented from calling evidence to prove that at precisely the same time the British Admiralty was taking active steps to invade Norway.
Clause 19 released the Tribunal from any obligation to enforce “the technical rules of evidence.” It expressly directed the Tribunal “to admit any evidence which it deemed to have probative value”. To bolster up any charge which could not be proved by admissible evidence, the Tribunal was directed to accept hearsay evidence. In accordance with this clause a quantity of second and third hand statements, documents the authenticity of which no attempt was made to prove, and other inadmissible evidence was cheerfully accepted by the Tribunal. For the first time in legal history, the mere fact that an allegation was made or suggested was held to have “probative value” of its truth.
The Tribunal saw fit to exercise rigorously the powers given by Clauses 18 and 19. On the other hand the Tribunal to a great extent ignored Clause 21 which directed them “to take judicial notice of facts of common knowledge” and to dispense with formal proof. That this clause might cut both ways was probably overlooked by the framers of the Charter. On several occasions the Tribunal was caused grave embarrassment by Clause 21. Thus regarding the invasion of neutral Norway, Mr. Churchill had told the Commons on the 11th April 1940 that Britain had infringed Norwegian neutrality before the German invasion was launched, and his speech had been reported in full in the Press. By the time of the Nuremberg Trials in 1945 the truth had become common knowledge. The Tribunal, however, insisted on being judicially ignorant of what they could have read in Hansard.
Naturally the peculiarities and eccentricities of the London Agreement were of interest only to lawyers. The general public accepted its provisions complacently, regarding it merely as a formal direction setting out the preliminaries to be observed before the execution of the prisoners. This complacency was not disturbed by objections of mere lawyers, an appearance of apparently unanimous approval by the legal profession being created by the policy adopted by the Press not to report any expression of dissent. Occasionally, indeed, adverse opinions reached the public; for example in the little book by Montgomery Belgion previously cited entitled Epitaph on Nuremberg, and again when Serjeant Sullivan was roused to indignant protest by a ruling of the Bar Council that it was “undesirable” that a member of the English Bar should appear for the defence before the Nuremberg Tribunal. “If indeed the Tribunal and its task”, wrote the veteran barrister, “are such that self-respecting Counsel should not lend himself to the proceedings, it is undesirable that an English judge should sit and an English law officer as such should prosecute”. Naturally, however, the lay public disregarded such lonely protests at the adoption of novel legal conceptions which were supported by legal opinion of the greatest weight. Foremost among the eminent lawyers who defended the practice of holding war trials of captured enemies was Lord Justice Wright, unquestionably one of the ablest lawyers of his generation. After a distinguished career at the Bar during which he is said to have earned £25,000 a year, he was made a judge in 1925, a Lord of Appeal in 1932 and presided at many famous trials. After the War he accepted the appointment of chairman of the War Crimes Commission and later defiantly defended the arrangements for war-crimes trials made by himself and his colleagues. The essence of his contentions was that if an accused person was, in fact, guilty no injustice could be done by convicting him. In the memorable debate on the 19th May 1949 in the House of Lords, following an attack by Lord Hankey on the Tokyo War-Crimes Trial, Lord Wright complained bitterly, “It was very unfair and irrelevant to criticise war-crimes tribunals as conqueror’s law. The only question was, did the accused have a fair trial?”
Looking back on the subject unclouded by the war-time passions which still survived in 1949, the fallacy of this argument is apparent. Of course a guilty man, that is to say, a man who in fact is guilty and admits that he is guilty, has no ground for complaint if he is convicted. But if an accused person, whether guilty or innocent, elects to deny the charge, how are his fellow citizens to decide what is the truth? The essential question then is, how and by whom is it to be decided whether he is guilty or not? A fair trial means a trial before an impartial court at which the rules of evidence are observed. No man living knew better than Lord Justice Wright the meaning of the term ‘a fair trial’: when presiding in the Court of Appeal he had unhesitatingly reversed judgments given in lower courts following trials in which inadvertently had been infringed the principles which Clauses 18 and 19 of the London Agreement authorised the Nuremberg Tribunal to disregard. Another stalwart upholder of the validity of war-trials was Professor Arthur Goodhart, Professor of Jurisprudence at Oxford University. This may now seem not less astonishing than would be a declaration by the Astronomer Royal that he had become convinced that the earth was flat. Naturally however the lay public in 1945 was gratified to hear that an innovation that seemed on the face of it a flagrant repudiation of the fundamental principle of jurisprudence had the emphatic approval of so many eminent judges and learned jurists.
Whatever shortcomings may now be obvious to everyone in the London Agreement, it cannot be denied that the procedure which it laid down succeeded in achieving one of the main objects of its framers: it provided for the disposal of the captured enemy leaders with a minimum of friction between the victorious Powers. Although the British, French and American judges on the Nuremberg Tribunal considered that the task of the court was to decide whether the accused were guilty of the offences alleged against them and the Soviet judges considered that the task before the court was simply to order the elimination of a group of avowed opponents of Communism, yet this complete divergence of outlook never during the hearing became obtrusively apparent. In public at any rate complete harmony prevailed. There was never unseemly bickering between the members of the Tribunal, although in fact the only link between them was a common determination that no hitch should arise from their irreconcilable outlooks. Later, this determination was strengthened by the personal goodwill and respect which grew up between the members of the Court. It is no matter for surprise that the proceedings ended with a mass-hanging of the prisoners, but, in view of the composition of the Court, it is remarkable that there was so little friction during the trial, there being at the end a perfect crescendo of mutual congratulation. The Judges, Marxian and non-Marxian, praised each other and Counsel; Counsel thanked the Judges and each other. The British representatives paid the time-honoured tributes to British Justice and generously admitted the merits of the various foreign legal systems, and the foreign representatives praised British Justice and each spoke favourably of his own country’s system of administering justice. To the extent, at least, of the four countries taking part, rarely has there been such a demonstration of international amity.
Nevertheless, there is reason for doubting whether the non-Marxian members of the Tribunal ever comprehended the distinctive outlook of their Soviet colleagues. How genuine was the goodwill and how complete this incomprehension were strikingly demonstrated some three years after the close of the Nuremberg trials. Although, by this time, public opinion in Great Britain and in the United States with regard to the Soviet Union had completely changed, we find Lord Justice Lawrence, now become Lord Oaksey, who had acted as President of the Tribunal, hotly resenting an attack on Russia’s participation in the proceedings as a reflection not only on himself but on his Soviet colleagues. Speaking in the House of Lords on May 5, 1949, Lord Hankey had declared that “there was something cynical and revolting in the spectacle of British, French and American judges sitting on the Bench with colleagues representing a country which before, during and since the trials had perpetrated half the political crimes in the calendar.” Speaking in reply, on May 19th, Lord Justice Lawrence declared that Lord Hankey’s observations were “insulting to my Soviet colleagues, to Mr. Justice Birkett and myself. The Soviet judges demonstrated their ability and fairness.”
The relevance of this reply may appear obscure. Lord Hankey had merely expressed the surprise, long felt by many, that the Soviet Union, having so recently wantonly attacked Finland, conquered and annexed Esthonia, Latvia and Lithuania, and deprived Roumania by force of Bessarabia, should, nevertheless, have been considered eligible to participate in a trial of the leaders of another Power, charged with having waged a single war of aggression. Lord Justice Lawrence’s reply was that there was no ground for surprise, because the individuals sent to represent the Soviet Union at the trial turned out to be able and fair-minded.
We may, of course, readily accept Lord Justice Lawrence’s testimony that his two Soviet colleagues impressed him as able and fair-minded men. Lord Hankey had, in fact, expressly admitted that they may have been “impeccable as individuals”. For all we know to the contrary, they may also have been excellent husbands and fathers, profound students of botany, expert mountaineers, or ardent philatelists.11 But what bearing could their personal gifts, virtues and tastes have on Lord Hankey’s contention that the participation in the Nuremberg Trials of a state with the record of the Soviet Union was “cynical and revolting”? Even Lord Justice Lawrence must surely have become gradually conscious of the Alice-in-Wonderland atmosphere that the participation of the Soviet Union conferred on the proceedings, and which platitudes about humanity and denunciations of aggressive warfare as the supreme international crime, however impressively and pompously expressed, failed utterly to dispel.
It is hard to believe that Lord Justice Lawrence had never heard of that series of political trials which began in Russia, in 1936, known to history as the Great Purge. Apparently, however, he was not aware that these trials were conducted in accordance with a novel and distinctive system of law, of which the only effective principle familiar to jurists in the rest of the world was the Roman maxim, Salus populi est suprema lex, adapted to mean, “What in the opinion of Joseph Stalin is necessary for the safety of the Communist Party is the paramount law.” In the years following 1936, Joseph Stalin came repeatedly to the opinion that the safety of the Communist Party necessitated the liquidation of one or other of the famous men who had helped Lenin to bring about the Russian Revolution twenty years before. Included among them were Lenin’s personal assistant Gregory Zinoviev; Leo Kamenev, the president of the Moscow Soviet and, like Zinoviev, one of the original members of the Politbureau; Ivan Smirnov, once acclaimed “the Lenin of Siberia”; Nikholai Bukharin, the editor of “Izvestia”; the once powerful journalist, Alexei Rikov; Marshal Mikail Tukhachevsky, the most successful leader of the Red Army during the Civil War; Karl Radek, once director of Bolshevik foreign propaganda; and even the dreaded chief of the G.P.U., Henry Yagoda. The trial and execution of these men duly followed. There is no reason to think that the judges who condemned them were not able and fair-minded; in accordance with their legal training they accepted the guidance of the Marxian legal maxim quoted above.12
Similarly, at the Teheran Conference, Joseph Stalin, in the name of the executive government of the Soviet Union, expressed the opinion that certain German opponents of Communism, to the number of 50,000, should be liquidated “as fast as we capture them before a firing squad.” As a concession to the bourgeois scruples of his Allies Stalin, indeed, agreed that a trial should, in each case, precede execution, but his decision that these men must die remained unaltered. Did Lord Justice Lawrence imagine that the Soviet Judges who tried any of these cases in Moscow or in Nuremberg were at liberty to reverse Joseph Stalin’s decisions on this subject or on any other? His speech in the House of Lords, quoted above, clearly indicated that this was his belief, since otherwise the importance which he attached to the fairness of his Soviet colleagues is quite incomprehensible.
In one sense, of course, the learned English judge may have been right in his belief. In the same sense no doubt, Henry VIII’s judges may be said to have been at liberty to reverse the decision of their royal master that “the Abbot of Glaston should be tried at Glaston and also executed there with his complycys”. There is no reason to think that the judges who condemned Abbot Whiting to the lingering horrors of an English execution for high treason were not able and fair-minded men. But, as loyal and obedient servants of His Majesty, they would have had little difficulty in convincing themselves that the opinion of their sovereign lord, the king, was well founded. Similarly, a Soviet judge would, naturally, feel it presumptuous on his part to investigate too deeply the grounds upon which “our great wise Leader, Lenin’s true pupil and successor,” had formed an opinion. Soviet law gives the widest judicial powers to the executive government, and the duty of a Soviet judge is to administer, not to reform, Soviet law. Joseph Stalin, like Bluff King Hal, was notoriously impatient with subordinates who failed on any pretext to carry out his instructions, and was very likely to regard anyone who disagreed with him as a self-confessed counter-revolutionary. In Tudor times, those who had the honour to serve Bluff King Hal lived under the shadow of the Tower, just as those who, four hundred years later, served Joseph Stalin, lived beneath the shadow of the Lubianka Prison.
“Stuff and nonsense,” exclaimed Alice when the Queen demanded, “Sentence first—verdict afterwards.” The members of the International Military Tribunal at Nuremberg can be divided into two distinct groups, according to their attitude to this celebrated passage in Lewis Carroll’s classic story. To the Soviet judges, the Queen’s demand for “Sentence first—verdict afterwards” was a perfectly rational requirement supported by numerous weighty precedents. To Lord Justice Lawrence and his non-Marxian colleagues, as to Lewis Carroll’s contemporaries, it was nothing but brilliant nonsense, a whimsical extravagance so wildly fantastic as to be humorous. Neither group had the slightest comprehension of the legal concepts of the other. Lord Justice Lawrence’s tribute to the fairness of his Soviet colleagues proves, for example, that no less than three years after the Nuremberg Trials the leading British representative on the tribunal had still not grasped the Marxian significance of the word “fairness”. In Marxian legal ideology, the word “fairness” means fairness to the proletarian state; fairness to an unrepentant opponent of Communism is simply a contradiction in terms. All the occupants of the dock were undeniably guilty of being anti-Communists and, as such, required elimination. Whether they deserved execution for certain specific acts was a question of no practical importance. When a majority of the Tribunal in a fleeting spasm of self-assertion decided to acquit von Papen, the Soviet Government lodged a strong protest. His acquittal might have been “fair” in a non-Marxian sense, meaning that he was not guilty of the acts of which he was accused, but it was obviously “unfair” to Communism that an outspoken opponent of Communism should be allowed to survive.
Some may think that the above protest of Lord Justice Lawrence showed undue touchiness to reasoned and moderately expressed criticism. Full credit should, however, be given him for the loyalty displayed by him to his foreign colleagues who, no longer seated on the Bench at Nuremberg secure from challenge or objection, were, like himself, standing before the bar of history awaiting judgment. But what is really significant in the episode is that the English judge should assume that Soviet judges should need or desire any defence from charges of having outraged established principles of justice which he himself, of course, accepted without question but which had long come to be regarded as obsolete bourgeois prejudices in the Soviet Union.
Concerning Lord Justice Lawrence, afterwards Lord Oaksey, it can at least be said of him that he stood out head and shoulders above the motley team of judges, barristers, investigators, warders and executioners, which gathered among the ruins of the beautiful medieval city of Nuremberg in October 1945. It was entirely owing to the fact that he was chosen to act as Chairman of the so-called International Military Tribunal that the proceedings were conducted with decorum and decency. His gifts and limitations combined to make him the ideal man for the post. His dignity was never shaken even when the most embarrassingly absurd situations arose, and his unquestionable integrity and sincerity cast a much needed cloak of respectability over the protracted proceedings. Thanks entirely to the unruffled courtesy and firmness with which he conducted the trials, it can be said without fear of contradiction that if a stranger, say, from Patagonia, who knew nothing of the circumstances and spoke no language but his own, had happened one day to visit the Justizpalast in Nuremberg during a hearing, he might well have imagined a normal judicial trial was in progress—providing, of course, that he did not tarry too long.
Some of Lord Justice Lawrence’s colleagues may have equalled him in legal learning and judicial experience, but none could rival his guileless sincerity. His outstanding characteristic was simplicity. His mind was one that might have been cited by propaganda specialists as a perfect example of what the well-conditioned mind of a patriotic citizen ought to be. Having accepted without question at its start the contention that the Second World War was a conflict between Good and Evil, nothing that happened later disturbed this conviction. It may seem strange that travelling about Germany for over a year and seeing everywhere scenes of ghastly devastation, his faith remained unshaken in the official explanation that it was all a reprisal for a bomb said to have been dropped five years before by an unidentified plane near Canterbury. It must be remembered, however, that relatively few people in Britain at that time had ever heard of the Lindemann Plan and there is no reason to think Lord Justice Lawrence was in possession of what was then inside information. A busy man with many responsible duties, he seems to have taken little interest in current affairs and so it may well be that his recollection of what he had read in the Press at the time concerning the Great Purge in Russia had become dim. Consequently he found no difficulty in believing even the ridiculous Stalin Myth. He accepted the appointment to represent Britain on the International Military Tribunal as a patriotic duty. He envisaged the task before him as in no way different in essentials from that of presiding over a trial of some criminal at the Old Bailey. All he imagined he would have to do was to listen to the evidence laid before the court by the prosecution and then to decide whether the charges had been established. The praise which the representatives of the Press lavished upon him for his dignified bearing filled him with surprise and irritation. Did these journalists imagine that he would sit with his feet on his desk, exchanging wisecracks with the gorilla-faced guards surrounding the prisoners in the dock! Naturally he behaved on the Bench like an English gentleman: it was regrettable that so many found his accent affected and irritating but he spoke like anyone else educated at Haileybury and who for twenty years had been a member of the Inner Temple. The reason why he never showed embarrassment when awkward situations occurred was that he never noticed anything which could embarrass him. Thus he listened with unwearied patience to the evidence which the Communist chief prosecutor laid before the court concerning the Katyn Forest Massacre. He repressed the least sign of surprise that such transparent rubbish should be put forward as evidence. Unfortunately, however, the matter could not be disposed of simply by acquitting the prisoners of this charge. As no doubt his colleagues pointed out to him, if the Germans had not murdered these unfortunate Polish officers, then the Russians must have murdered them, since clearly these Poles could not have committed suicide and then buried themselves in a mass grave. An acquittal of the Germans would therefore be equivalent to a conviction of the Russians. The jurisdiction of the Tribunal was strictly limited by the Charter “to crimes committed in the interest of the Axis Powers”. If the Tribunal by implication convicted the Russians of this crime, Stalin would undoubtedly regard it as a flagrant breach of the London Agreement and would withdraw his representatives from the Nuremberg Trials. The result would assuredly have been an acute international crisis: the Trials which had been designed to demonstrate the unshakable unity of the Grand Alliance would have shown that unity to have been a propaganda fiction. The situation would have come about which did not in fact come about until 1948 when Stalin ordered the blockade of West Berlin.
For the first time probably it then dawned upon the mind of Lord Justice Lawrence that the proceedings over which he was presiding with such dignity had nothing to do with the administration of justice but were simply a political gesture, a move in the game of high international politics. The fate of the Nuremberg Trials hung in the balance. In spite of the (to him) unfamiliar circumstances Lord Justice Lawrence rose grandly to the occasion. Perhaps indeed the brilliant solution of what had seemed a hopeless predicament did not originate in his decidedly unoriginating mind; probably it was suggested to him by one of his colleagues, possibly by his British colleague, the far from guileless Mr. Justice Birkett. True, this solution entailed defiance of the elementary principle of justice that when the prosecution fails to establish a charge, the defendant is entitled as of right to have the charge dismissed. Such considerations of elementary justice, however, never troubled the International Military Tribunal. From the start they had acted in accordance with principles of justice which they invented in accordance with the requirements of the moment. When the time at last arrived to deliver judgment, Lord Justice Lawrence with unshakable dignity avoided all mention of the charge relating to the Katyn Forest Massacre. The Tribunal left this charge in the air and acted as if it had never been brought!
The judgment of the International Military Tribunal which was delivered on the 1st October 1946 after a hearing lasting a year, was a truly remarkable production. No doubt all the members of the Tribunal, each assisted by his team of legal advisers, took a hand in drafting it. It may be that Lord Justice Lawrence did not take a leading part in this delicate work, but the duty of reading it fell upon him as chairman of the Court, and it was universally agreed that he performed this duty with an awe-inspiring gravity which almost carried conviction amongst those who heard him. The principal charge against the accused was the commission of the newly invented crime of planning and waging a war of aggression, to which charge all the other charges made were ancillary. As previously stated, the Tribunal had utterly failed to find and agree upon a definition of “war of aggression” which would on the one hand include Hitler’s invasion of Poland in 1939 and, on the other hand, would exclude the half dozen invasions launched by Stalin against the territories of the states bordering the Soviet Union. The Tribunal had given up the task of finding a definition in despair. “Aggressive war has not been and perhaps never will be adequately defined,” brazenly declared Whitney R. Harris, the assistant American prosecutor at Nuremberg, “and it may be contended that the very indefiniteness of the concept makes difficult its prohibition. But it does not follow that so elusive a concept may not afford an adequate judicial basis for criminal prosecution.” Without indicating what this judicial basis was, the Tribunal decided that in view of the conviction recorded against the defendants by the chiefs of state at the Yalta Conference the defendants were clearly guilty of the offence alleged, although they were unable to say exactly what this offence was. The Tribunal was unanimously agreed that whatever this offence exactly might be, it was a very grave offence. With a solemnity which held the Court spellbound, Lord Justice Lawrence declared:
“The initiation of a war of aggression is not only an international crime, it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
With unruffled dignity the learned chairman of the Tribunal then proceeded to deal with other matters, leaving “a war of aggression” undefined. No better example can be cited of the preeminent services rendered by Lord Justice Lawrence to the promoters of the Nuremberg Trials than the fact that this passage from the judgment of Tribunal as read by him was received at the time with general approbation as marking a memorable advance in the development of international law.
In 1962 the Oxford University historian and leading anti-German publicist, Dr. A. J. P. Taylor, sixteen years after the close of the Nuremberg Trials, ventured to express his opinion as to their nature.13 He described the Nuremberg Tribunal as “a macabre farce” and expressed surprise that an English judge should have been found to preside over it, and that English lawyers, including the then Lord Chancellor, should have pleaded before it.14 Many may now think “a macabre farce” an apt description of what actually took place. But for Lord Justice Lawrence’s firm and dignified handling of this macabre farce, however, it would have quickly degenerated into a sordid burlesque.
Lord Justice Lawrence’s outstanding services at the Nuremberg Trials were rewarded by a well-deserved peerage. How vital to the outcome of these proceedings were these services was not generally recognised at the time, and particularly by his colleague, Mr. Justice Birkett, who failed to understand that Lawrence had not been made a baron merely for spending a year among the ruins of Nuremberg, taking part as a judge at the trials. He felt strongly that he also was entitled to a peerage since, as he recorded in his diary, he, just as much as Lawrence, had had “to sit in suffering silence listening to clouds of verbiage, mountains of irrelevance and oceans of arid pomposity.” When he learned that Lawrence had been made a baron, Birkett remained silent in public but he wrote privately to Lord Chancellor Jowitt: “I spent a day nursing my most grievous hurt, for it is idle to deny that I am hurt, deeply and grievously.” One may sympathise with his outraged feelings while remembering that it is a common experience of many people in this world to receive less than the justice which they think they deserve. At the time Birkett was “nursing his most grievous hurt” in comfortable retirement, others concerned in the Nuremberg trials were suffering far more acutely from injustice, as for example Grossadmiral Raeder who had been condemned to nurse the grievous hurt of having been condemned as a criminal on a transparently frivolous charge to spend the rest of his life in the gloomy horrors, humiliations and hardships of Spandau Prison.
In a nutshell the business of the International Military Tribunal was to investigate and punish war-crimes, and one may pause here to consider briefly what meaning the Tribunal at length came to attach to the term, war-crime. They made no attempt to define it and no one has attempted to define it since. Originally, as we have seen, the term meant breaches of that unwritten code of civilized warfare which was adopted by the European nations in their wars with each other towards the end of the 17th century. The deliberate bombing of an enemy civilian population was obviously a breach of this code but the promoters of the Nuremberg Trials decided not to prefer charges of indiscriminate bombing against the captured enemy leaders. This omission caused great astonishment at the time since in popular opinion this was the crime of which the Germans were most flagrantly guilty. We now know why no such charge was preferred. The Chief American Prosecutor at Nuremberg, Robert H. Jackson, many years later explained the mystery. The decision not to prefer any such charges, he tells us, was reached after long and anxious deliberation because of the difficulty of distinguishing between “the military necessity” which was accepted as justification for the destruction by British and American airmen of the cities and towns of Germany and “the military necessity” for similar destruction by German airmen. Raising this subject, he tells us naïvely, would have been “to invite recriminations which would not have been useful at the trial.”
As a result of this decision reached after long and anxious deliberation, the Tribunal was spared any mention of the Lindemann Plan and was not therefore compelled to give any ruling on terror bombing. With regard to unrestricted submarine warfare, however, the Tribunal gave an important ruling. Grossadmiral Dönitz was charged with waging unrestricted submarine warfare, and the Tribunal reluctantly admitted that in assessing this crime an order of the British Admiralty, dated 8th May 1940, directing that all ships in the Skagerrak should in future be sunk without warning, combined with the admitted fact that the United States had waged unrestricted submarine warfare from the first day the United States had entered the war, could not be left out of account.
This ruling established the novel principle that, whether a particular act was a crime or not depended on whether the victors could be shown to have committed it. If the victors had committed it, it could not be a crime.
In order to discover what meaning the Tribunal ultimately came to attach to the word “war-crime”, several other factors have to be taken into consideration. First and foremost, the London Agreement made it clear that to render a person liable to punishment for a “war-crime” he must be a citizen of a state on the vanquished side. The jurisdiction of the Tribunal was strictly limited to offences committed in the interests of the Axis Powers. The moment it appeared that the offence had been committed in the interests of the victorious opponents of the Axis Powers—as happened in the case of the charges relating to the Katyn Forest Massacre—the Tribunal was forbidden to consider the subject any further. In all trials for “war-crimes” therefore, the prosecution had first of all to prove the accused was on the losing side and then, having done this, proceed to prove the accused committed the act in question.
Secondly, it is agreed that political expediency may qualify the guilt of an accused person. Thus, for example, Italian subjects admittedly committed acts which have been labelled “war crimes” and for which Germans and Japanese have been done to death. No international mass-trial of Italian subjects on the lines of the Nuremberg and Tokyo mass-trials ever took place.
Taking into account the above-mentioned exclusion of Italian subjects from prosecution for war-crimes, and the omission to include the indiscriminate bombing of civilians as a war-crime even when committed by German subjects, the following definition of a war-crime is reached:
“A war-crime is an act committed by a member of a vanquished state but not a vanquished state wholly or partially absolved from war guilt for political expediency, which in the opinion of the conquerors of that state is a war-crime, but which act is not an offence which has been so flagrantly and openly committed by the conquerors themselves that mention of it would cause them embarrassment.”
A further amendment may be considered necessary, if one weighty obiter dictum be accepted. In the war-trials at Tokyo, in 1947-1948, the Indian representative, Mr. Justice Rahabinode Pal, delivered a brilliant dissenting judgment in which he laid down that “the farce of a trial of vanquished leaders by the victors was itself an offence against humanity”, and was, therefore, in itself, a war-crime.
With due respect to that profound student of international law, Mr. Justice Rahabinode Pal, it is submitted that this contention would only become true if, later, the members of the tribunal found themselves on the losing side. All the authorities are agreed that being on the losing side is an essential element in a war-crime. The trial of prisoners of war by their captors may be, and generally is, a crime against humanity, but, according to the definition laid down in the London Agreement and accepted at Nuremberg, a crime against humanity is only a war-crime if it be committed “in the interests of the vanquished side”.
No passage in the Nuremberg Judgment had been more frequently quoted than the passage describing the initiation of a war of aggression as “the supreme international crime, differing only from other war-crimes in that it contains within itself the accumulated evil of the whole.” Standing by itself with the words “a war of aggression” undefined, this description means nothing whatever and it is hard to explain how it came about that two experienced and learned English High Court judges were brought to endorse such pompous and meaningless verbiage. Can it, however, be a coincidence that the fundamental principle upon which the Nuremberg war-trials was based and by which the International Military Tribunal was guided, is exactly defined if the wording be altered to, “Being on the losing side is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole”?
It would be consistent with the terms of the Charter, the rulings of the Tribunal, and all the surrounding circumstances, if, as originally drafted, the judgment had in fact contained this illuminating definition. It is, however, easy to understand why, to the majority of the members of the Tribunal, it appeared on consideration much too illuminating. No doubt, proud of his own eloquent phraseology, the author of this particular passage, whichever member of the Tribunal it may have been, strongly objected to its elimination, and his colleagues at last came to accept the view that the passage could do no harm, provided that it was deprived of all meaning. In fact, this celebrated passage in the judgment reads equally well if the words “To initiate a war of aggression” be substituted for the words “Being on the losing side”.
Except that all twenty-one accused were undeniably guilty of being on the losing side, there was no connecting link between them. The charges brought against Ernst Kaltenbrunner, the head of the Security Forces, were entirely different from those brought against Julius Streicher, the anti-Semitic editor of Der Stuermer and neither group of charges was even remotely connected with the charges, such as they were, brought against Grossadmiral Raeder, the commander-in-chief of the German Navy. Each day the twenty-one accused were forced to sit in the dock to listen to all the evidence collected by the prosecution, although only a small fraction of it had any bearing on any of the charges brought against any individual. Mr. Justice Birkett, as we have seen, complained bitterly at having, day after day, “to sit in suffering silence listening to clouds of verbiage, mountains of irrelevance and oceans of arid pomposity.” He was a trained lawyer, accustomed to listen to involved evidence and legal argument; he could doze when he was bored. The accused were laymen and much of what went on must have been completely incomprehensible to them. Nevertheless, being on trial for their lives they could not afford to miss any point which might possibly have a bearing, however remote, on the charges made against them personally.
To disentangle the twenty-one cases from each other and then to sketch the course of each even in outline would be a lengthy and profitless undertaking; to sketch in outline the course of the proceedings as a whole would be impossible, since the Tribunal gave no indication as to what evidence they accepted and what they rejected. All that can be done here is to trace the course of one trial so as to show how the procedure laid down by the Charter to the London Agreement worked in practice. The trial of Grossadmiral Raeder is chosen as illustrating this most clearly. The charge against Grossadmiral Raeder was under Article 6 of the Charter. It was alleged that he had committed a crime against peace by planning and directing the invasion of Norway in 1940. Undeniably as commander-in-chief of the German Navy he had taken a leading part in planning and directing this invasion. Admittedly no quarrel of any kind existed between Germany and Norway. On the face of it, therefore, this invasion was plainly an aggressive war and the London Agreement had declared that to wage an aggressive war was a crime. If it be admitted that this declaration had retrospective effect, conviction after a hearing lasting only a few hours would seem inevitable.
The case, however, was not so simple as this. No one suggested that Germany had any grievance against Norway. In a nutshell Grossadmiral Raeder’s defence was that the invasion of Norway which admittedly he had planned and directed, was not undertaken as a result of any quarrel with Norway, but in order to forestall a British invasion of Norway which was on the point of being launched.
The business of the Tribunal was to punish various acts, hitherto regarded as innocent but which had been pronounced criminal by the London Agreement. In theory the Tribunal had the right to interpret the London Agreement as they pleased and to hold any act criminal subject only to the express limitation of their jurisdiction to punishing only such acts as were committed in the interests of the European Axis Powers. The Tribunal interpreted this limitation of its powers as imposing on it a duty to act on the assumption that the victorious Powers were, one and all, incapable of committing war crimes. From this as it followed logically that if one of the victorious Powers could be proved to have committed a certain act, the Tribunal had no power to declare that act a crime. The act in question received, as it were, a certificate of innocence. With remorseless logic the Tribunal decided that an act which must be regarded as innocent as having been committed in the interests of the Victors could not at the same time be pronounced a crime if committed in the interests of the vanquished.
The promoters of the Nuremberg Trials had foreseen that the Tribunal might take this view and consequently, as we have seen, no charges of indiscriminate bombing were preferred against the captured enemy leaders. Rather incautiously, however, charges of waging unrestricted submarine warfare were preferred with the result the Tribunal held that as both the Americans and British had undeniably waged unrestricted submarine warfare, it was entitled to a certificate of innocence and consequently Admiral Dönitz was entitled to be acquitted on this charge.15
Upon this ruling of the Nuremberg Tribunal in the Dönitz Case the fate of Admiral Raeder depended. The main charge against him was that he had planned the invasion of Norway in 1940. If he was allowed to prove that this invasion was launched to forestall a British invasion of Norway, he would be entitled to an acquittal. By the same reasoning as had led to unrestricted submarine warfare being granted a certificate of innocence, an invasion of Norway in 1940 would have to be pronounced innocent.
During the first month of the war the suggestion was made and freely discussed in the British Press that a British army should be landed on the northern coast of Norway and from there should strike across northern Sweden to the port of Lulea on the Baltic, from which port the Swedish iron ore upon which the Germ armament industry was largely dependent, was exported to Germany. If supplies from the Gallivare iron mines were cut off, Germany’s output of munitions would be dealt a paralysing, perhaps ultimately a fatal, blow. To many this seemed a promising way of winning the war, far less costly than a mass attack on the Siegfried Line. The prospect of a repetition of the Somme Offensive appalled everyone. It occurred to no one at the time that there would be anything unethical, much less criminal, in invading two small neutral countries. Many felt, as Mr. Churchill put it in a Memorandum to the War Cabinet dated the 16th December, 1939, that small neutral countries ought to be glad to put up with some temporary inconvenience in order that a war being fought to preserve the rights of small countries could be won. “Humanity, not legality, should be the guide,” declared Mr. Churchill. When, twenty-four hours before the German invasion of Norway was launched on April 9th, 1940, the news arrived that British minefields had been laid in Norwegian territorial waters, it was generally assumed—and, as it later proved, rightly assumed—that this was a prelude to the long discussed Norwegian invasion. In a speech on April 9th Mr. Churchill told the House of Commons that just before the German invasion British mine-fields had been laid in Norwegian territorial waters and so this fact at least could be proved by reference to Hansard.
It was not indeed known at the time of Raeder’s trial that some units of the British expeditionary force had actually been embarked when the German expeditionary force left for Norway, but it was common knowledge that the British Government was planning an invasion and as a preliminary step had laid mine-fields near Narvik. The Tribunal reluctantly admitted that laying mines in Norwegian territorial waters was an infringement of Norwegian neutrality, but refused to accept as a fact of common knowledge that this was an overt act indicating an intention to invade Norway. Abundant evidence as to British intentions in regard to Norway of course existed but Admiral Raeder, a closely guarded prisoner in a country in enemy occupation, had no possible means of obtaining it. There were scores of highly placed persons in Britain who knew the full truth, but there was no way of forcing them to attend the trial at Nuremberg to tell it. The Tribunal insisted on being judicially ignorant of what, as Lord Hankey wrote afterwards, “had long been a matter of public knowledge”. The Tribunal dealt with the German invasion of Norway as if it had been a single isolated act without regard to current events or to the surrounding circumstances. Admiral Raeder was convicted and sentenced to life imprisonment.
It was not until he had endured for several years the carefully devised humiliations, hardships and deprivations of Spandau Prison, that the full truth gradually began to come to light. Following a brilliant outline of the events leading up to the German invasion of Norway, Lord Hankey, in his book, Politics: Trials and Errors16 summarises the facts as follows:
“By the beginning of April 1940 the preparations for the major offensive operation in Norway had been completed both by the British and the Germans. Neither side had given the other an easy excuse for launching their expedition, and by a coincidence the two operations were launched almost simultaneously without any pretext having been found. The actual German landing did not take place until April 9th. Twenty-four hours before that, namely between 4.30 and 5.00 a.m. on April 8th, the British minefields had been laid in the West Fjord near Narvik.”
Lord Hankey then proceeds as follows:
“From the start of planning to the German invasion, Great Britain and Germany were keeping more or less level in their plans and preparations. Britain actually started planning a little earlier, partly owing to Mr. Churchill’s prescience, and partly perhaps because she had a better and more experienced system of Higher Control of the War than Germany. Throughout the period of preparations the planning continued normally. The essence of the British plan was to stop the German supplies of Gallivare ore during the winter. Both plans were executed almost simultaneously, Britain being twenty-four hours ahead in this so-called act of aggression, if the term is really applicable to either side.”
Only two years after the publication of Lord Hankey’s memorable work the full truth was disclosed in the first volume of a series of military histories of the Second World War entitled The Campaign in Norway.17 The author, Dr. T. K. Deny, from official sources presumably not available to Lord Hankey, disclosed that as early as November 1939 the British Admiralty began to push forward in earnest plans for an invasion of Norway as a result of a report by the Ministry of Economic Warfare that if Germany’s supplies of Swedish iron ore were cut off, within twelve months Germany would be unable from lack of munitions to wage active warfare. When the Soviet Union launched an unprovoked attack on Finland in November 1939, to the original purpose which an invasion of Norway and Sweden was intended to serve was added the quite distinct purpose of providing help to the gallant Finns, “sublime in the jaws of peril”, as Mr. Churchill put it. On February 6th, 1940, the Supreme War Council approved detailed plans to land an army in Norway which “on its way to rescue the Finns” as Dr. Derry demurely expresses it, would seize the Swedish ore fields and the Baltic port of Lulea. The most startling revelation in this official record of the Norwegian Campaign is best summarised in the following passage from a remarkable review of this book by “Our Special Correspondent” published in The Times of December 10th 1952 under the title, A Gallant Fiasco:
“Britain was dickering with a modified version of the original scheme for securing Narvik and some troops had actually been embarked in warships when, in the early hours of April 9th, Hitler struck.
“With the exception of Oslo, which had never figured in our plans, the immediate German objectives in Norway were precisely (and inevitably) the same ports whose seizure the Allies had been assiduously plotting for many months.”
The cool cynicism of this reference to “plotting for many months” will only be realised if it be remembered that when these words were written Admiral Raeder had for six years been enduring the horrors of Spandau Prison after condemnation as a criminal for exactly the same plotting.
No doubt the Special Correspondent of The Times when he wrote this review had forgotten completely the conviction of Admiral Raeder. By the British public in general Admiral Raeder was remembered, if at all, as one of the German leaders who had been convicted at Nuremberg. Although the trials had started in the full glare of publicity, the proceedings each day being fully reported in the Press, public interest quickly faded in spite of desperate efforts to keep it alive. After the first couple of months reporting became more and more brief. Few readers attempted to work out what exactly were the charges being brought against each defendant individually. At the end Admiral Raeder’s name was just one on a list of names of defendants who had been convicted of something or other. Consequently when the full truth concerning the intended British invasion of Norway was published, there was no public outcry over what was now clearly a gross miscarriage of justice. Admiral Raeder remained in Spandau Prison until the 25th September 1955 when he was released on the ground of ill-health, having spent almost exactly nine years there “in very hard and inhumane conditions”, to quote Mr. Churchill. Far more than Mr. Justice Birkett he had reason to consider himself a victim of grievous injustice since, as it has now been disclosed, he was only included in the list of major war-criminals because, as Whitney R. Harris, the assistant American prosecutor at Nuremberg, long afterwards cynically explained, “Raeder was a not illogical defendant-counterpart to Field Marshal Keitel”.
While the trial of Admiral Raeder was in progress the British politicians who had “plotted” the invasion of Norway and the generals and admirals who had been given the command of the Norwegian Expeditionary Force left the International Military Tribunal to deal as best they could with the carefully selected facts produced in evidence by the prosecution. If some consciences were disturbed during this time or at Admiral Raeder’s conviction, no outward sign of this disturbance was given. In fairness to the Tribunal, the extreme delicacy of the task given them should be pointed out. How delicate this task would be was clearly overlooked by Whitney R. Harris and his colleagues when they decided to prosecute Admiral Raeder as “a not illogical defendant-counterpart to Field Marshal Keitel. It was one thing for the Tribunal to grant certificates of innocence to indiscriminate bombing and to unrestricted submarine warfare on the ground that both these forms of warfare had been waged by the victors. It was quite another thing to grant a certificate of innocence to an unprovoked invasion of Norway by Germany on the ground that this invasion was to forestall an unprovoked invasion of Norway by Britain. Such a ruling by the Tribunal would have been universally denounced, especially in small countries, as the aggressors’ charter! Thenceforth every great Power would have had a ready excuse for an attack on a small state by alleging that it was intended simply to forestall an attack by another great Power. It is perhaps not entirely irrelevant to note that without any ruling by the Nuremberg Tribunal this excuse was put forward by Anthony Eden in 1956 when he claimed that the Franco-British invasion of Egypt in that year was intended to protect Egypt from an invasion by Israel.
The Tribunal could of course have resolved their difficulties by accepting Admiral Raeder’s evidence that the German invasion of Norway was a countermove intended to forestall a pending British invasion, no evidence contradicting the Admiral’s testimony having been tended by the prosecution, and then to have ruled that there was a fundamental distinction between the two invasions, the British invasion being intended to further a just cause and the German invasion an unjust cause. Admiral Raeder in accordance with this ruling could then have been convicted of planning and directing an invasion in an unjust cause.
Having failed however to define ‘a war of aggression’, the Tribunal foresaw that the same difficulty would arise in distinguishing between a just cause and an unjust cause. In fact the difficulty would be essentially the same. It would obviously be impossible to define an unjust cause without impliedly condemning the invasion of Finland by Soviet Russia in November 1939 and thereby arousing Stalin’s dreaded anger. Very prudently the Tribunal decided to take no such risk.
In all criminal trials there is invariably one outstanding figure upon whom all interest centres. Generally this is the accused person in the dock. In the “Great Business” in Westminster Hall in 1649 all attention centred on “The Grand Delinquent” standing trial for his life. Few now remember anything in particular about the pack of vindictive weasels which conducted the prosecution of Charles I. The promoters of the trial, Oliver Cromwell and his “grim colonels”, preferred to lurk unobtrusively in the background. In the dock at Nuremberg in that year of grace, 1945, there were twenty-one persons alleged to be delinquents, but only one who could be regarded as a Grand Delinquent. The figure of Field Marshal Herman Göring towered not only above all the other accused, but over everyone else taking part in the proceedings. This was not simply due to his recognised position as, next to Hitler, the most influential leader in the Nazi Party, the only one of the accused whose name was known throughout the world. The other occupants of the dock had little to say for themselves. The generals and admirals, men brought up from youth in the traditions of European civilized warfare, found it hard to believe that their captors really intended to put them to death. They were prisoners of war and as such were entitled to be treated in accordance with international law codified by treaties to which the victorious Powers had been parties. But long before the Geneva Convention it had been the custom in Europe for two and half centuries to treat captured enemy military and naval leaders with respect and honour. Any act of violence against their persons would cast an indelible slur on the profession of arms. Probably they relied on their professional brethren serving in the armies and navies of the victorious Powers to veto any secret plan for their elimination which the politicians might have arranged. Anyway the novel charges probably seemed so fantastic to them as to be incomprehensible. The other German political leaders in the dock with Göring were demoralised by the completeness of the disaster which had overtaken them and sought to meet the charges brought against them by denials, explanations, excuses and regrets. After the trial Göring is reported to have commented on Ribbentrop’s appearance in the witness box, “I was sorry to see Ribbentrop break down. If I had been Foreign Minister I would have said, “That was my foreign policy and I stick to it. If you want to put me on trial for it, go ahead. You’ve got the power: you are the victors!’”
Whether this observation is authentic or not, it exactly expresses Göring’s own attitude to the Nuremberg Trials. As an intelligent man he knew that whatever he said, he was doomed. He had not followed the example of Hitler, Goebbels and Himmler and escaped the ordeal of “a form of trial” (once again to quote General Nikitchenko’s description of the proceedings) by committing suicide, because he was determined that at least someone should put on record the defence of the German people to the charges of their enemies. In his evidence he was speaking not to the Tribunal but to posterity. Whether or not posterity will find it convincing, it was without question a masterly presentation of the German point of view. The chief American prosecutor, Robert H. Jackson, began his cross-examination with a series of carefully prepared questions, which he imagined Göring would meet with blunt denials, and so would soon entangle himself with damaging contradictions. But Göring frankly admitted the suggestions made to him. Of course from the first he had set out to bring about the downfall of the Weimar constitution. Certainly he had planned to free Germany from the unjust restrictions imposed by the dictated Treaty of Versailles. Obviously his re-creation of the Luftwaffe was a breach of the clauses of that Treaty.
So, of course, also was the re-occupation of the Rhinelands. Yes, he had been prepared to use armed force to recover the German city of Danzig, annexed by Poland in 1939. Yes, in common with statesmen of all countries in all ages, he had been willing to resort to war to achieve a political purpose. Completely baffled, Jackson lost his temper, but soon found that bullying could not shake the witness’s iron self-control. In the end he was driven to appeal to the protection of the Tribunal from his intended victim.
Mr. Justice Birkett noted in his diary, “the cross-examination of Göring had not proceeded more than ten minutes before it was seen that Göring was the complete master of Justice Jackson. Suave, shrewd, adroit, capable, resourceful, he quickly saw the elements of the situation and, as his confidence grew, his mastery became more apparent. For almost two days he held the stage without interruption of any kind.”
Birkett then made the ingenuous comment, astonishing from one purporting to sit in a judicial capacity, that the Tribunal should have intervened to protect bullying Counsel from this unyielding witness. Intervention, he notes, would have had the happy result of restoring Jackson’s lost confidence and so would have been “for the ultimate benefit of all concerned in the trial”.
Writing nearly twenty years later, the chief British prosecutor at Nuremberg, Sir David Maxwell Fyfe, in his book Political Adventure18expresses the opinion that on this point “Birkett’s judgment was seriously at fault. If Göring could run rings round prosecuting Counsel, that was a matter for Counsel to put right without assistance from the Tribunal”. He himself then adds a glowing tribute to what he calls “Göring’s insolent competence” and declares that Göring was “the most formidable witness I have ever examined.”
From his book, cited above, it is clear that Sir David Maxwell Fyfe looks back with complacent satisfaction on the humiliating discomfiture of his American colleague, Jackson, as providing him with an opportunity to pay himself a glowing tribute for what he describes as his own masterly cross-examination of the fallen Nazi leader. Resolutely ignoring Göring’s “jibes and insolence, his sallies, his wit and sneers,” he concentrated on the charge which most deeply interested the British public, the charge that Göring was personally responsible for the shooting of some fifty British airmen who had effected a mass escape from a prison camp known as Stalag Luft III. He suggests that he succeeded in establishing this charge although not apparently to the Tribunal’s satisfaction, judging from the fact the Tribunal followed the practice they had adopted in the case of the Katyn Forest charges and omitted all reference to this charge in the judgment, the accused on this charge being neither convicted nor acquitted. Perhaps the failure of the Tribunal to recognise that he had succeeded where Jackson had so signally failed may account for Sir David’s rather tart references to the British judge, Birkett. He consoled himself for this disappointment by claiming that he extracted damaging admissions by Göring with regard to the treatment of captured Allied airmen, shot down when carrying out the Lindemann Plan, of partisans operating behind the German lines, and of the inhabitants of the countries in German occupation. And even Sir David, with his unlimited capacity for self-congratulation, could not claim that Göring’s conviction was due to his brilliant cross-examination since the judgment of the Tribunal, read with special solemnity by Lord Justice Lawrence, stressed that Göring was being convicted on the charges which he himself had contemptuously admitted. The wording of the judgment is as follows:
“Göring was often, indeed almost always, the moving force, second only to his leader. He was the leading war aggressor both as political and as military leader; he was the director of the slave-labour programme and the creator of the oppressive programme against the Jews and other races, at home and abroad. All of these aims he has frankly admitted. On some special cases there may be conflict of testimony, but in terms of the broad outline his admissions are more than sufficiently wide to be conclusive of his guilt. His guilt is unique in its enormity. The record discloses no excuses for this man.”
The objections to the Nuremberg Trials as a whole are so many, so grave and so unanswerable that if an international court of appeal composed of judges from neutral countries had been in existence in 1946, before which the doings of the International Military Tribunal could have been brought, no doubt the judgments delivered at Nuremberg would have been quashed in toto, including the conviction of Hermann Göring. Without going into the details of particular charges against particular individuals, an impartial court of appeal would have declared the proceedings void ab initio as based on contentions repugnant to the fundamental principles of justice.
That the Tribunal’s findings of fact, apart from findings of guilt, carry no weight has now become generally recognised. How utterly discredited the Nuremberg Trials have become was strikingly demonstrated during the heated controversy which arose in 1961 between the rival Oxford University historians, Trevor Roper and A. J. P. Taylor, following the publication of the latter’s book in which he refuted the propaganda fiction that Hitler was solely responsible for the outbreak of the Second World War. Trevor Roper had declared that this exposure of the truth would do “irreparable harm”, and on the 9th July, 1961, the B.B.C. arranged a televised debate between these two learned gentlemen. Taylor in his book had not troubled to mention the findings of the Nuremberg Tribunal on the subject of war guilt and it was confidently expected that Trevor Roper would summarily dispose of his opponent’s contentions by drawing his attention to these findings and pointing out that the questions dealt with in Taylor’s book were res judicata, having been settled once and for all by the judgment of the Tribunal. To the general surprise, however, Trevor Roper did not once refer to the judgment. Tacitly, therefore, he accepted Taylor’s view that the unanimous findings of the eight learned judges reached after what purported to be an investigation of the facts lasting a year, were not worth citing even as a pointer in the direction of the truth.
Unquestionably any conviction following a trial conducted on the lines of the Nuremberg Trials would in any civilized Western country be quashed without hesitation by a court of criminal appeal. Unquestionably also many of the convictions pronounced by the International Military Tribunal were in themselves undeniably gross miscarriages of justice: perhaps of these the conviction of Admiral Raeder may be cited as the most indefensible. On the other hand it does not necessarily follow from this that all the accused convicted at Nuremberg were wrongly convicted. Several of them were clearly guilty of abominable crimes against humanity. When condemning a lynching one is apt to regard the person done to death as the victim of lawless violence although probably in the majority of cases the victims of lynching deserve their fate. Similarly in regard to many of the accused at Nuremberg. The case of Field Marshal Hermann Göring is one in which it can be reasonably argued that on the facts proved his conviction was wrong, while it is possible also to argue that no injustice resulted from his conviction and that he richly deserved his fate.
The principal charge on which Göring was convicted was that he had planned and waged an aggressive war. This admittedly was not a crime when allegedly he had committed it but was declared to be a crime by the London Agreement of the 8th August 1945, a declaration which was treated as having retrospective effect. Göring frankly admitted planning and waging a war for a political purpose and since as we have seen the Tribunal deliberately refrained from defining an aggressive war, we are left without guidance as to the nature of the war for which Göring was admittedly partly responsible. Of course if one accepts the view that any resorting to war to achieve a political purpose is per se a crime, then clearly Göring’s conviction was justified. One hesitates to accept this view since it entails the admission that Anthony Eden was a criminal in 1956 when he ordered a British army to invade Egypt in alliance with France and Israel, the saintly Pandit Nehru was a criminal in 1961 when he invaded and annexed the four hundred year old Portuguese possession of Goa, and the Sectariat of U.N.O. were criminals in 1963 when they ordered their forces in the Congo to invade the province of Katanga!
Apparently the Tribunal came to the conclusion that the prosecution had failed to establish Göring’s personal responsibility for any of the specific crimes against humanity brought against him or for any of the specific war-crimes as defined under the unwritten code of European civilized warfare, as for example the alleged shooting of the British airmen escaping from Stalag Luft III. Very reasonably however they held that Göring as a leading member of a government which had authorised wholesale crimes against humanity of the most frightful description must be deemed to bear a share of the burden of the collective guilt. They rejected his claim that the Air Ministry of which he was the head was not concerned with the doings of Himmler and the S.S., and that although he knew of the existence of the concentration camps to which Jews and others were being sent, he had no knowledge of what was going on in these camps. It was as if a member of the British Cabinet in 1942 who was able to prove that he had not been present at the cabinet meeting at the end of March of that year when the Lindemann Plan was adopted, subsequently maintained that he had no personal knowledge that a terror bombing campaign in accordance with this plan was being conducted against the German civilian population. For once taking up a position on firm ground, the Tribunal convicted Göring, as the judgment expressed it, “in terms of the broad outline.”
The trial of Field Marshal Hermann Göring owes its unique interest among the trials of modern times not certainly to the legal technicalities which arose during its course, most of which indeed arose during the concurrent trials of the other twenty defendants, nor to the discomfiture of the bullying prosecutor, Robert H. Jackson, nor to the demonstration, to his own satisfaction, of Sir David Maxwell Fyfe’s gifts as a cross-examiner, nor even to the unruffled dignity of the president of the Tribunal, but to the colourful personality and unflinching courage of the defendant.
Success, political power and wealth had brought all the faults and weaknesses of Göring’s character uppermost. Those who remembered the handsome young flying officer who in 1918 had taken over the command of Baron von Richthofen’s Jagdgeschwader I of the famous ‘Flying Circus’ on the death of the Red Baron, hardly recognised as the same man the corpulent figure, bedecked with medals, of the most powerful man in the Third Reich next to the Führer himself. He had in the course of twenty years become self-indulgent, vulgar, unscrupulous and ruthless, a braggart and a bully. Disaster brought about an equally astonishing transformation. The semi-starvation to which like all the other prisoners he was subjected during his captivity—the reader will remember the pre-conviction punishment inflicted on Bessos before his trial—worked a miracle on his appearance and in his character. He faced his accusers with the same dauntless spirit with which during, the First World War he had set forth in his plane against the overwhelming air strength of the Allies. In June 1918 he knew that the war was lost but at least he could bring down a few more enemy planes: in October 1945 he knew that he was doomed and that nothing he could do or say would avert his fate but at least he could score a few last triumphs, if only verbal ones, over his captors.
As a youth Göring had been prone to making defiant gestures. In 1918 after the signing of the Armistice he received orders to fly his squadron to some airfield in France and there surrender it: risking a well-deserved court martial, he refused to obey and led his squadron back to its base in Germany as a protest, a rather futile protest, it must be admitted, against fate. In 1946 after he left the dock in Nuremberg for the last time it must have seemed that there remained nothing further for him to do but to wait until the hangman was ready to deal with him. Ever since his arrest at Kitzbuhel his enemies throughout the world had been gloating over the prospect of his execution as some compensation for their disappointment over the suicide of Hitler about which they could only comfort themselves by pious reflections on the sanctity of human life and the enormity of the sin of self-destruction. The execution of Göring was to have been a sort of sacramental act: it was intended that in his person the whole National Socialist Party should expiate its shortcomings, follies and crimes by an ignominious death on a gallows. Extraordinary and most stringent precautions were taken to make it absolutely certain that Göring possessed no means of committing suicide and that no such means should reach him.
How Göring, shortly before midnight and less than an hour before the time fixed for his execution, succeeded in committing suicide remains after over twenty years a mystery. Charles Bewley in his biography of Göring19 assures us that all the guesses made to date as to what happened have been baseless and that the truth has not been disclosed by the surviving members of Göring’s family because the essential role was played by “a non-German in the prison” whose identity must be kept secret. It seems indeed scarcely believable that among Göring’s carefully selected guards was a foreign sympathiser with the Nazi movement. On the other hand we know that the accused when they were removed from the dock to the cells beneath were subjected to the harshest, if not brutal, treatment. This fact is made clear by the complaint made in open court by Julius Streicher to the Tribunal that he had been violently assaulted by his jailers who among other indignities had forced him to drink his own urine. The truth of this complaint finds some confirmation in the fact that not only did the Tribunal refuse to order an investigation but on the application of Rob H. Jackson, the chief American prosecutor, they ordered that this complaint should be deleted from the record of Streicher’s evidence, so that future historians, studying the Nuremberg Trials, and imagining the shorthand notes of the proceedings were complete, would not know that this complaint had been made. It is not unlikely that this incident suggested to George Orwell the periodic re-writing of history to suit the political requirements of the moment which he describes in Nineteen Eighty-four. Whether Streicher’s complaint be accepted or not, it is at any rate certain that no control was exercised over the treatment of the prisoners and it is therefore just conceivable that some witness of this treatment may have been inspired by disgust and sympathy to intervene.
Whatever the motives of this unknown person may have been, the Grand Delinquent of Nuremberg found himself literally at the eleventh hour in possession of what before anything else in the world he desired to have. His jailors found him lying on his plank bed as if asleep with an amused smile on his lips and an empty file of cyankali on the floor beside him. Even many who attributed their wrongs to him have come to the conclusion that this was a fitting end to the career of the famous fighter pilot for which the most hackneyed lines in literature might well have been expressedly written, “Nothing in his life became him like the leaving it.”
Chapter 8 — The Last Phase
The mass-trial of the leading German politicians and service chiefs at Nuremberg was the natural outcome of a war in which one side had adopted terror bombing and the other genocide as part of their war effort. No other outcome was to be expected. It was just one stage of the chain reaction which had started in 1914. The Nuremberg mass-trial however was only one episode of this stage in the chain reaction which included not only the equally significant mass-trial of the Japanese leaders at Tokyo, but many thousand war-crimes trials of prisoners of war which took place in widely separated places in Europe and Asia and continued for a period of half a dozen years. The Nuremberg War-crimes Trial overshadows all other war-crimes trials held after 1945 because, when it started, all the manifold resources of the science of modern propaganda were concentrated upon it in order to implant in the public mind the conviction that the disposal of the leaders of a defeated and discredited political party was an event of unique significance for all mankind. In itself of course it mattered nothing whether these ill-fated men died on a scaffold or were allowed to die a natural death in their beds, but the promoters of the trial had determined to represent their disposal as a symbolic act which could be made the subject for worldwide jollification. Consequently no pains were spared to give the proceedings the widest publicity. While at first the reaction of the public was all that could have been desired, the arrangements made were so clumsy and elaborate that the proceedings dragged on for nearly a year and the public became bored with so protracted a performance. One cannot remain in a state of joyful ecstasy for eleven months! Nevertheless the conviction was successfully planted in the public mind that the Nuremberg War-crimes Trial was of unique importance.
No comparable attempt was made to give publicity to any of the other war-crimes trials which took place from 1945 onwards. Not one of these war-crimes trials, even the great Tokyo War-crimes Trial, was reported in any detail in the British Press. Every few days over a period of half a dozen years the execution of some prisoner of war was announced unobtrusively as an item of news on the back pages of the newspapers but the victim was merely described as a war-criminal and rarely was any mention made of his alleged offence. The vast majority of war-crimes trials were never reported at all.
It will be remembered that the Nuremberg Tribunal was created by Article I of the London Agreement to try “war-criminals whose offences had no particular geographical location.” This Article referred only to prisoners who before their trial were labelled ‘major war-criminals’. In the preamble to the Agreement reference was made to the Moscow Declaration of the 30th October 1943 by which it had been agreed that prisoners who were responsible for crimes committed in a particular country should be sent back to that country “to be judged and punished according to the laws of that country.” It was assumed that prisoners already in captivity in the country where they were alleged to have committed crimes would be dealt with by their captors as the latter saw fit and so no international agreement was needed to provide for their liquidation.
So long as Germany remained able to resist, fear of reprisals offered protection to German prisoners of war. The moment unconditional surrender had taken place, this protection was removed and the work of disposal was gleefully undertaken in all the victorious countries. Not only did executions commence but in accordance with the Moscow Declaration a brisk traffic of prisoners of war began. It frequently happened as had been foreseen at the Moscow Conference in 1943 that several of the victorious Powers would claim the right to bring to trial and to liquidate the same prisoner of war. Keen bargaining then often resulted. Thus, for example, it might happen that Czechs held some officer of high rank as a prisoner of war against whom they had no particular grudge but against whom both the Poles and Serbs had laid distinct sets of charges. Each claimant would then make an offer for the victim. Thus the Poles might offer to hand over in exchange to the Czechs an officer of equal rank whom the Czechs wanted to hang while the Serbs would offer to hand over a dozen S.S. men of a unit upon whom the Czechs particularly desired to lay their hands. Like antique dealers, the victorious Powers exchanged lists of the human commodities which they had for barter. Once a claim had been laid the victim was handed over unless the Power whose prisoner he was happened to have charges of its own against him. The principle upon which the Moscow Declaration was based was that the accusers of a prisoner were not only eligible to try their own charges against him but were the parties most eligible to try these charges. It was argued that as conviction and justice were in practice synonymous, the swiftest and surest way of ensuring a conviction must also be the swiftest and surest way of dispensing justice. None of the victorious Powers acknowledged any obligation to investigate any charge made by one of its allies against a prisoner of war in its custody. The fact that a charge was made was accepted as evidence of sufficient ‘probative value’ to indicate the victim’s guilt. The only obligation admitted once a claim had been laid for the surrender of a prisoner of war was to take all necessary precautions to prevent the victim from committing suicide.
The official attitude in such cases is well expressed in the following extract from a letter dated the 19th December 1960 from a high official in the British Foreign Office in reply to an appeal for intervention by Britain to secure the release by Italy of Major Walter Reder, a German prisoner of war who after being in British custody for over a year had been handed over to the Italians so that they could try their own charges against him. An outline of the facts of this remarkable case will be given later in this chapter. This illuminating extract reads as follows:
“When you wrote in March 1958, Mr. David Ormsby-Gore said in reply that we were afraid that we were unable to help; that Reder had been handed over to Italian jurisdiction and from that moment the case had become one for Italian penological and clemency procedures; and that the fact that we had handed Reder over did not give us any say in these procedures. I am afraid that the situation is unchanged. At the end of the war, there were, as you know, a great number of war-Criminals whom two or more countries wanted to try, and the decision in each case had to be taken on an ad hoc basis. It was of course very much a matter of chance whose forces originally captured any particular war-criminal, and the fact that Reder was originally in our hands does not, I am afraid, give us any right to intervene on his behalf with the Italians. Once he had been handed over, he was removed entirely from our jurisdiction.”
This letter left unanswered the question why the British military authorities in Italy handed Major Reder over to the Italians in order that they might try their own charges against him instead of putting him on trial before a British military tribunal as they had done with his superior officers, Field Marshal Kesselring and General Max Simon, under whose orders Major Reder had acted. To this day the reason why this extraordinary procedure was adopted remains a mystery: to this day also after over twenty years Major Reder remains in captivity.
War-crimes trials took many different forms. In fact the only characteristic common to all of them was that they were all based on the principle that an accuser is a fit person to act as judge of his own charges. In accordance with the Moscow Declaration, each country dealt with its prisoners of war according to its own notions of justice, however vague these notions might be. The procedures adopted even by the civilized Powers varied greatly. Thus the Americans followed to a large extent the terms of the Charter of the London Agreement and in accordance therewith prosecuted Field Marshal Sperrle and eleven other generals for the ‘ersatz’ crime of planning, preparing and initiating aggressive warfare: they also prosecuted a group of German Foreign Office officials on the same charge. Most grotesquely of all they even undertook the prosecution of the directors of Krupps in an effort to establish by a judicial decision a factual basis for the Krupp Myth, the most celebrated myth of the First World War.20 The British, on the other hand, very wisely ignored the creation of such newly invented crimes and prosecuted their prisoners of war only for “violations of the laws and usages of war,”—that is to say, of breaches of that code of civilized warfare first tacitly adopted at the end of the 17th century which was examined at length in Chapters IV and V of this book. This course was possible without blatant absurdity at the time because the adoption of the Lindemann Plan by the British Government in March 1942 was not disclosed until 1961, long after the last war-crimes trial had ended. The adoption of terror bombing as a means of winning a war was of course the most flagrant breach conceivable of “the laws and usages of war.”
War-crimes trials carried out in the years immediately following 1945 may be roughly classified into four main groups under the following headings, The Spectacular War-crimes Trial: the Informal War-crimes Trial: the Show War-crimes Trial and the Routine War-crimes Trial.
In the previous chapter a description was given of the first and most celebrated Spectacular War-crimes Trial, the mass-trial of the captured German leaders at Nuremberg. In a war-crimes trial of this type the leaders of a vanquished Power are disposed of with the maximum publicity. The view that the aim of such a war-crimes trial is to wreak vengeance on hated national enemies is inadequate and superficial. The immediate purpose is to establish conclusively the fact that the vanquished Power had been completely defeated so that no question of this could possibly later arise as it did after the First World War when many Germans persuaded themselves that Germany had not been overcome by force of arms but had been beguiled into signing the Armistice on the promise that the peace treaty would be based on the Fourteen Points. The ultimate purpose of a Spectacular War-crimes Trial is to stifle future investigation by historians of the rights and wrongs of the struggle in question by a formal verdict by a Court appointed by the victors which lays the entire blame on the vanquished. After the First World War it was hoped to achieve the latter purpose by inserting an admission of guilt by the vanquished in the peace treaty which they were compelled to sign without discussion. It was soon found, however, that Clause 231 of the Versailles Treaty had become generally dismissed as worthless as having been extorted under duress. After the Second World War the victors decided to achieve the same object by staging a lengthy investigation of carefully selected evidence leading to a solemn verdict proclaiming the guilt of the vanquished. After the passage of twenty years, however, it has become open to doubt whether the verdict of the International Military Tribunal will carry any greater weight with posterity than the notorious Clause 231 of the Versailles Treaty.
The only other Spectacular War-crimes trial which has taken place since 1945 was the great mass war-crimes trial held in Tokyo of the vanquished Japanese leaders. It was an even more grandiose affair than the Nuremberg Trials; whereas at Nuremberg there were 21 defendants and the trial lasted 331 days, at Tokyo there were 27 defendants and the trial lasted 417 days. “At Tokyo,” commented Lord Hankey, “most of the weaknesses of the Nuremberg Trials were repeated and exaggerated”. The Tokyo mass-trial was presented to the American public as a subject for rejoicing but by the time it started the British public had become utterly bored by war-crimes trials in general and no attempt was made in Britain to arouse interest in what purported to be legal proceedings in far-off Japan. It happened that while the trial was in progress Stalin abandoned the pretence of being a friendly ally by establishing by force a Communist dictatorship in Czechoslovakia and by blockading West Berlin, and with the prospect of a third world war starting at any moment, few interested themselves in the liquidation of the Japanese leaders. Dr. Bell, the Bishop of Chichester, who, during the war, alone among the prelates of the Church of England, had raised a voice in protest against terror bombing, dismissed the proceedings in one short sentence, “As at Nuremberg, so at Tokyo, the victors tried and condemned the vanquished.”
Summarising this mass-trial in more detail and from an American point of view, Mr. George F. Blewitt writes:
“The basic fact of this war-trial is that the victorious Powers tried twenty-seven leaders of the defeated nation for violation of ex post facto law. Because the charter of the Tribunal was issued by a General of the U.S. Army; because the defendants were in the custody of the U.S. Army; because the Chief of Prosecution was a prominent American; because the costs of the trial were met by funds from the U.S. Treasury; and because the seven found guilty by a majority verdict were hanged by Americans—for all these reasons—the long-run effects of the trial are likely to be far more damaging to the prestige of the United States than to any other Nation represented on the Tokyo Tribunal.”21
Some have even maintained that the conviction of Mamoru Shigemitsu at the mass-trial in Tokyo was an even grosser and less excusable miscarriage of justice than the conviction of Admiral Raeder at the mass-trial at Nuremberg. This may seem to be putting the matter impossibly high but there are facts to support it. At the outbreak of war Shigemitsu was the Japanese Ambassador in London. All his life he had opposed the dominant group of militarist politicians which plunged Japan into war in December 1941, and it was not indeed alleged at his trial that he was in any way responsible for this disastrous decision. After the outbreak of war he returned to Japan, but it was not until after the tide of war had definitely turned against Japan that he joined the Japanese Cabinet, by which time no other course was open to him or any other Japanese politician than to do everything possible to maintain so stout a resistance that reasonable terms of peace would be offered. Unconditional surrender was, however, demanded. Shigemitsu was charged with the crime of being a member of the Japanese Cabinet at the time of Japan’s surrender after the explosion of the first atomic bombs. The French and Dutch judges on the Tokyo Tribunal delivered dissenting judgments acquitting him on all counts, but the majority judgment found him guilty and he was condemned to seven years’ imprisonment.
It is some consolation for the fact that the British representatives on the Tribunal were among the majority of the judges which reached this absurd conclusion, that the speedy rectification of this glaring miscarriage of justice was mainly due to the efforts of Lord Hankey, who crowned his long career of outstanding public service by devoting his tireless energies to obtaining justice for the victims of war-crimes trials. In a memorable speech in the House of Lords on the 19th May 1949 Lord Hankey delivered a scathing attack on the condemnation of Shigemitsu, making public for the first time the details of his so-called trial. These details were then quite unknown in Britain; only three weeks before the debate in the House of Lords the transcripts of the Tokyo war-crimes trials had arrived in London consisting of “a pile of double-spaced foolscap 30-feet high, including 48,000 pages of evidence, the Majority Judgment of 1,600 pages and the Minority Judgments of 1,500 pages.”22
In reply for the Government the Lord Chancellor, Viscount Jowett, expressed serene confidence that everything had been done in accordance with the high standards of British justice and was at pains to defend the integrity of the judges conducting the trials at Tokyo, in particular the British judge, Lord Patrick, although, of course, in fact no one had called their integrity in question. The House of Lords however languidly declined to interest itself in the question of justice to war-criminals. To break down this indifference, Lord Hankey then proceeded to set out the facts in his book, Politics: Trials and Errors, a work memorable as the only book written after the war which had a definite influence on the course of contemporary events. As a direct result of the publicity given to his case by this book, combined with the support of General MacArthur which Lord Hankey managed to enlist, Mamoru Shigemitsu was shortly released.
In passing it may be observed that the attitude of Viscount Jowett to the question of tempering justice with mercy was, to say the least, peculiar. “He did not say in so many words that he supported the conviction of Shigemitsu,” writes Lord Hankey, “but he gave that impression.” On the other hand, Viscount Jowett later wrote a book concerning the conviction of the communist spy Alger Hiss in which, while carefully avoiding saying that he believed Hiss was innocent, he urged that if only the Americans had been wise enough to have adopted the same rules of evidence as those in force in England there was a good chance that Hiss would have escaped justice, an outcome of the trial he clearly thought would have been very desirable. While strenuously defending the belated trial of Field Marshal von Manstein on transparently frivolous charges, he supported the great communist propaganda campaign to secure a reprieve for Julius and Ethel Rosenberg, the New York Jews who betrayed the secrets of the atomic bomb to the Soviet Union.
The most outstanding feature of the Tokyo war-crime trials was the brilliant dissenting judgment of Mr. Justice Radhabinode Pal, the representative of India on the Tribunal, who was, says Mr. Blewitt, “the only deep student of international law on the Bench”. In a 1,900-page judgment Mr. Justice Pal tore in shreds one by one the various charges against the accused. “A mere declaration of intent,” he declared “could not give the Allies any legal right to define war-criminals in a manner which suited their policies at the moment.” He held that there was no evidence to show that any of the accused were war-criminals according to the previously accepted definition of the term, and declared, regardless of the feelings of his colleagues on the Bench, that “to purport to put on trial and then to hang prisoners of war was in itself a war-crime of peculiar gravity.”
Nothing illustrates more vividly how complete has been the reversal of public opinion which has taken place during the past twenty years concerning racial equality than the reference in the charges against the defendants at Tokyo to the war commenced by Japan in December 1941 as “an aggressive war conducted for the purpose of securing military and political domination of East Asia.”
Few at the present time would venture so to describe this war because they have been subconsciously conditioned by the now widely accepted axiom of so-called progressive thought that in any conflict between the White Race and the Black or Coloured Races, the White Man is always in the wrong, and they feel it would somehow be disgracefully “reactionary” to dispute this axiom. Certainly no responsible politician in any country would now dare to brave the wrath of the Afro-Asian bloc in the Assembly of UNO by referring in such terms to a struggle which brought about the downfall of Colonialism in Eastern Asia and led to independence being achieved by half a dozen coloured nations from the bondage of Western Imperialism. Contemporary opinion, however, regarded the Tokyo war-crimes trial as well-merited retribution on a race of presumptuous yellow dwarfs for daring to challenge White supremacy in the Far East and, while the struggle remained on equal terms, for proving themselves more than a match for the White Race.
Informal war-crimes trials, the second of the four classes into which war-crimes trials may be divided, are the exact opposite of Spectacular War-crime trials. War-crimes trials of this kind seem to have been particularly common in the Soviet Union. The first step in such a trial is a decision by the officials of the government department which had been entrusted with the task of disposing of prisoners of war, that a particular enemy unit should be held responsible for the commission of a certain alleged crime. Once this decision had been reached nothing remained to be done but to order that parades should be held of the inmates in all the prisoner of war camps in the country so that the members of this unit could be picked out. The unfortunates in each camp so picked out would then be paraded separately from their comrades when they would be informed that they had been collectively judged guilty of the offence in question and had been sentenced to a long term of forced labour in Siberia.
It may perhaps be argued that Informal War-crimes Trials are not really trials at all. The decision of a government department cannot be described as a judicial verdict. To this objection the reply can be made that in a rough and ready way this procedure followed the august precedent established at Nuremberg where “the major war criminals of European Axis Powers” had already been adjudicated and found guilty (to quote once again the Russian judge at Nuremberg, General Nikitchenko) by the Chiefs of State at the Yalta Conference. The only distinction which can be drawn between the two cases is that the decision to convict the prisoners at Nuremberg was reached by a group of powerful politicians representing their respective countries, while in cases of Informal War-crimes Trials a similar decision to convict is reached by a committee of obscure bureaucrats. It can at least be said in favour of informal War-crimes Trials that the victims are spared the ordeal of having to listen to pompous speeches, and no pretence is made that strict justice is being meted out to individuals.
For the third class of war-crimes trials the name Show War-crimes Trial has been suggested. This procedure seems to have been most frequently adopted in Czecho-slovakia. The prisoner is taken to the place where he is alleged to have committed his crime and the trial takes place there publicly before a jury composed of the relations and friends of his alleged victims and is followed by his execution amid general rejoicings. This procedure has in recent years been employed in an elaborated form in Cuba by Fidel Castro for the disposal of adherents of the fallen Batista regime, following the precedent already set in China after the establishment of a communist regime by Mao Tse Tung. In China, after 1949, persons accused of being anti-Communist were tried in the place where they resided by a mass jury composed of their neighbours. All the forms of a judicial trial are strictly observed. The proceedings are commenced by a speech by the prosecuting official in which the offences of the accused are graphically described at length amid great applause. The accused then recites his confession amid demonstrations of popular indignation and anger. The judge then solemnly announces his verdict which is of course loudly cheered. The execution then follows amid a general jollification that the punishment should so satisfactorily fit the crime. This class of war trial puts into practice the suggestion of W. S. Gilbert in The Mikado that each prisoner pent should provide the community with innocent merriment.23
The vast majority of war-crimes trials form a distinct group which, for want of a better term, may be labelled Routine War-crimes Trials. Outwardly most of them took the form of normal criminal prosecutions. The two Spectacular War-crimes Trials which followed the Second World War were essentially political demonstrations in the form of a legal trial in accordance with the principle adopted in the Yalta Conference which was well summarised by Field Marshal Montgomery in a speech he made in Paris on June 9th, 1948, “The waging of an unsuccessful war is a crime; henceforth generals on the defeated side will be tried and then hanged.” As we have seen, to date only two examples of this type of trial have taken place; the murder of Benito Mussolini by a communist liquidation squad “at least spared the world an Italian Nuremberg,” to quote Winston Churchill’s comment in his book, Triumph and Tragedy, and Stalin disposed of the leaders of the other vanquished Powers, Hungary, Roumania and Bulgaria, without inviting the participation of his allies. The practice of disposing of prisoners of war after Informal War-crimes Trials does not seem to have been widely adopted outside the Soviet Union while only in semi-civilized countries were Show War-crimes Trials carried out and no statistics are available to provide a basis even for a guess as to the total number of victims. On the other hand, many thousands of prisoners of war were done to death in Europe and Asia after Routine War-crimes Trials.
War-crimes Trials of this type were all conducted on the lines of a court-martial in accordance with the military law of the country in which they were held. Generally they concerned such undoubted criminal acts as robbery, looting, or the murder or maltreatment of prisoners or civilians, acts which would be criminal if committed by anyone but are dealt with under military law when the alleged offenders happen to be soldiers and who, as prisoners of war, remain under military discipline. The same military courts also dealt with alleged breaches “of the laws and usages of war”, to quote the phrase adopted by the British military authorities. Occasionally, as we have seen, the American authorities brought to trial before their military courts enemy prisoners of war and even enemy civilians charged with the commission of one or other of the newly invented “ersatz” crimes, such as planning or waging a war of aggression.
Unlike the so-called International Military Tribunal which sat at Nuremberg, most of whose members were civilians, the adjudicating body in Routine War-crimes Trials was invariably composed of three or more army officers generally assisted by a lawyer who advised the court on military law. Rarely in cases of this type was an attempt made to interest the general public in the proceedings, and only in cases when the accused was a well known enemy leader did the British Press, at any rate, spare more than a few lines to record that the prisoner had been tried and executed. Particulars of his alleged offence were rarely supplied. Naturally, the treatment accorded to the accused at the hearing varied widely according to the standard of civilization reached in the country in which the trial took place, the extent to which that country had suffered during the war, and to the national temperament. British military tribunals carried out their duties in a brisk, business-like way, carefully avoiding the appeals to emotion and flights of eloquence in which, for example, French military tribunals indulged. A routine procedure, more or less based on the Charter of the London Agreement, was soon established and thereafter punctiliously observed. Conviction before British courts was not automatic as it was in Routine War-crimes Trials conducted beyond the Iron Curtain. The issues to be decided by the military tribunals were simple issues of fact: should the evidence for the prosecution be accepted or the denials of the accused? Objections raised to the jurisdiction given to the Tribunals by a Royal Warrant to try foreign subjects were curtly dismissed: it was not until one of the last war-crimes trials, that of Field Marshal von Manstein in Hamburg in 1949, that these objections were permitted to be urged at length with the result that prosecuting counsel in this trial was reduced to arguing that as it had long been the established practice to reject these objections, to admit them now would amount to admitting that all the many hundreds of convictions recorded by British military tribunals of prisoners of war were invalid. Naturally the Hamburg tribunal recoiled from coming to so far-reaching and distressing a conclusion, and therefore decided to dispose of the matter by acting on the assumption that the Warrant of King George VI. had somehow conferred on them jurisdiction to adjudicate on charges brought against foreign subjects. They tried and convicted Field Marshal von Manstein accordingly.
No doubt the great majority of the British officers called upon in the course of their duties to serve on war-crimes tribunals were fair-minded men who did their best to dispense justice and at the same time to carry out what they conceived to be the wishes of their superiors. How often and how grossly they failed in the general run of the unrecorded cases which came before them can only be deduced from the glaring miscarriages of justice which resulted from carefully recorded prosecutions as that of Field Marshal Kesselring and Field Marshal von Manstein. Having regard to the state of public opinion at the time it was inevitable that when forced to choose between the evidence for the prosecution and the evidence for the defence, they invariably accepted the former. In brief, their attitude to the prisoners of war brought before them was similar to that of a bench of sporting country magistrates in England a century ago when forced to choose between the evidence of a gamekeeper and the evidence of an alleged poacher.
It might well be imagined that the course of all war-crimes trials would be governed by the provisions of the Geneva Convention of 1899 and the Hague Convention of 1907 which (inter alia) laid down clearly defined rules as to the treatment of prisoners of war. In brief it had been solemnly agreed by all civilized countries that prisoners of war had a right to be treated similarly to the members of their captors’ armed forces: that offences committed by them when in captivity should be dealt with in accordance with the military law of the country holding them captive: and that they were entitled to release as soon as practicable after hostilities ceased. During the Manstein Trial, defending counsel for the accused, Mr. R. T. Paget, clearly summarised Article 63 of the Geneva convention as follows, “The Convention provides that when a prisoner is tried by his captors, he shall have a fair trial, and defines a fair trial as a trial which the captor himself considered fair for his own troops.” When these international treaties were ratified they were acclaimed as outstanding landmarks in the course of human progress: no longer would the rights of prisoners of war be based on a mere tacit understanding between civilized peoples: these rights had become defined and codified by treaty and consequently these rights would henceforth be unassailable.
It is distressing to record that when in 1945 the matter was first put to the test it was found that rights granted by international treaties were illusory if the will to disregard them existed. By a pettifogging quibble which would have delighted the hearts of those astute legal practitioners, Dodson and Fogg, late of Freeman Court, the obligations imposed at Geneva and the Hague were summarily set aside. It was pointed out that a prisoner of war was a captured enemy soldier and therefore if he ceased to be a soldier he would lose the unassailable rights of a prisoner of war. All that the captors of a prisoner of war had to do was to declare that he had become a civilian by announcing that he had been ‘demobilised’, a transformation which was carried out by formally depriving him of his uniform or by simply depriving him of his insignias of rank: Once he had become a civilian, his captors could treat him as they pleased. All the victims of war-crimes trials were tried and condemned as civilians.24
It only remains to illustrate by examples how in practice a Routine War-crimes Trial was conducted. Five examples have been chosen, two British, one American, one Italian and one French. It cannot be claimed that any of these five trials can be regarded as representing the average Routine War-crimes Trial. In all of them the adjudicating military tribunal took its duties seriously and listened carefully to the evidence placed before it both by the prosecution and by the defence. In the American example chosen, the Trial of General Yamashita, the judgment of the military tribunal was reviewed by the Supreme Court of the United States. Although this trial resulted in what was perhaps the most flagrant miscarriage of justice of the five trials selected, it can at least be said that the accused was given a right of appeal from the military tribunal which condemned him to the highest civilian court of the country of his captors. None of the other victims of military courts enjoyed any such right of appeal. The details of this case are well known because, as in the case of Field Marshal von Manstein, defending counsel was moved to express his indignation with the verdict by writing a book describing the trial. A White Book has been published by the Italian Ministry of the Interior on the facts of the Italian example chosen, the trial of Major Walter Reder, while the French example, the trial of General Ramcke, has been brilliantly described in a book by the victim himself. Only the details of the trial of Field Marshal Kesselring remain obscure. None of the promoters of these war-crimes trials, nor counsel for the prosecution in any of them, have felt impelled to write books justifying what took place, no doubt feeling that the sooner the subject was buried in oblivion the better.
The average Routine War-crimes Trial was very different in practice, but not in theory, from the five celebrated trials described below. Except in the case of these five trials no details have been published and no records have been made public concerning any of these prosecutions before military tribunals. Most of the victims were obscure individuals whose fate was of no interest to anyone but their relations and friends. The verdicts carry no weight and would be promptly quashed by any court of appeal reviewing them judicially in accordance with established legal principles because in all these proceedings hearsay evidence had been freely admitted in reliance on the authority given in the London Agreement. Only if and when the records are made available for investigation will it be possible to form an opinion as to the proportion of these cases where it can be claimed that a sort of rough justice was probably done.
THE TRIAL OF FIELD MARSHAL KESSELRING
When the Nuremberg Trials commenced on the 20th November 1945, all the manifold resources of propaganda were mobilised to focus public attention on this great Spectacular War-crimes Trial. In consequence the numerous Routine War-crimes Trials which were taking place contemporaneously were allowed to pass unnoticed. Only occasionally was space on the back pages of the newspapers spared for a brief announcement that some war-criminal had been tried and executed somewhere or other. After a few months however the British public became heartily bored by the slow progress of the mass war-crimes trials going on at Nuremberg. When desperate efforts to retain public interest in these proceedings had failed the promoters wisely decided to discontinue their intensive propaganda campaign. Finally, when after some eleven months it could be announced proudly that the Nazi war-criminals had been at last convicted, it was decided in deference to the growing public distaste to withdraw unobtrusively the subject of the disposal of the prisoners taken in the late war behind an Iron Curtain of Discreet Silence. War crimes tribunals continued to function as briskly as ever but no details of their doings were published and the British public gradually forgot what was going on and turned its attention to more pleasant subjects.
The Iron Curtain of Discreet Silence remained unbroken in Britain until May 1947, when it was casually disclosed in the Press that Field Marshal Albert Kesselring, the commander-in-chief of the German forces in Italy, had been sentenced to death by a British military court in Venice, after a hearing lasting three months, for being responsible for the shooting of certain hostages and various Italian partisans and bandits who had been caught operating behind the German lines.
The storm of protests which this unobtrusive announcement aroused seems to have filled the British authorities with genuine surprise. Other generals of equal standing to Field Marshal Kesselring had been quietly liquidated by courts having no more jurisdiction to enquire into their doings than the court in Venice which had condemned this particular prisoner of war. Field Marshal Kesselring was unquestionably a general on the defeated side. Why then, it was asked plaintively, should he, contrary to all democratic principles, be treated as an exception? Why should he alone be allowed to enjoy the rights of a prisoner of war?
Certainly no fault can be found in this reasoning. Besides, it was pointed out, into this particular case political considerations entered; it was known that Italian public opinion would be favourably influenced if the German general who had defended Italian soil so long and so gallantly were hanged. The fact was overlooked that many people in Great Britain, both influential and obscure, were extremely proud of the campaign in Italy, a campaign waged by both sides with but few lapses from the highest standards of civilized warfare—apart, of course, from the numerous outrages committed on prisoners and wounded by the Italian partisans and the ruthless reprisals of the German security police, similar to those of the Black-and-Tans in Ireland, in 1920. In fact, apart from that one “tragic mistake”, the wanton destruction of the Monte Cassino Monastery—the blame for which still remains a subject of dispute between the American, General Mark Clark, and the New Zealander, Lieut.-General Bernard Freyberg—the campaign in Italy was one of which both sides might be justly proud. It was felt in wide circles in Great Britain that if Field Marshal Kesselring were hanged, the laurels of his victorious opponents would be irredeemably sullied. It was realised that, in the eyes of posterity, so monstrous an act of barbarism would cast a shadow over the whole allied campaign in Italy.
As the result of a single official indiscretion there collapsed that Iron Curtain of Discreet Silence behind which Britain’s enemies in Germany were being quietly liquidated without too great a strain being placed upon the famed British love of justice and fair play. Lieut.-General Sir Oliver Leese, the commander of the Eighth Army, declared in an interview in the Press that had it been his fate to have been on the defeated side, the same charges as those brought against Field Marshal Kesselring could have been established against himself. “Kesselring was a very gallant soldier who fought his battles well and squarely,” General Leese declared. “With regard to the treatment of prisoners, I think that Kesselring, like Rommel, set a very good example—a far better example than the Italians.” In support of this opinion, the General quoted Viscount Alexander as saying, “I think that the warfare in Italy was carried out fairly, and from a soldierly point of view, as well as it could have been done.”25
These and similar protests were from persons so eminent and influential that it was impossible to dismiss them summarily by neither publishing nor commenting on them. The British authorities had brought this storm on themselves by their own blunder but it must be admitted that they succeeded in extricating themselves from an awkward situation with considerable skill. No attempt was made to justify the trial of the German field marshal; no attempt was made to defend the unfortunate military court at Venice which, after all, had only administered what they were assured was the new law governing the matter before them. The unanswerable denunciations of Field Marshal Kesselring’s trial at Venice applied equally, of course, to war-crimes trials generally, but few of those who denounced this particular war-crimes trial were in the least interested in Kesselring personally, still less in abstract questions of justice. British public opinion had been roused simply because the honour and reputation of the Eighth Army had been made dependent on the saving of Field Marshal Kesselring from the hangman.
The obvious solution of the difficulty was to grant the Field Marshal a reprieve. But an unexpected difficulty then arose. The Field Marshal declined to lodge an appeal. His resolution was only overcome by appeals from brother professionals of the highest rank among his captors not to allow the military profession to be discredited by the carrying out of the sentence. It is not known what assurances were at the same time given him that he would receive honourable treatment if he went to reside in a British military prison: if given, these assurances were certainly not carried out. In due course, the British public learned with relief that the Field Marshal had lodged an appeal and had been duly reprieved; it was cheerfully assumed, but quite erroneously as it later proved, that the faces of the British military authorities would be saved by a short detention as a nominal prisoner. The whole subject was dismissed thankfully from mind, the Iron Curtain of Discreet Silence descended once more, and the work of “putting to death our enemies in Germany”26 continued, as before. England is a land of many creeds but whatever his creed may be, every Englishman firmly believes that what is not discussed or thought about has no existence: Quod non apparet non est.
Nevertheless, it is most remarkable how easily and quickly the Kesselring war-crimes trial was completely dismissed from mind immediately after it was announced that it had been decided not to hang the Field Marshal. Unquestionably this war-crimes trial was one of the most memorable of all that long series of such trials which began after the conclusion of hostilities in 1945. The facts of this case have since attracted little or no attention and remain curiously little known. During the hearing, only brief, disconnected and generally inaccurate details were published in the Press. Only when the astonishing verdict was announced was public attention aroused. Four years later, no book giving even an outline of this war-trial had been published so that when in June, 1951, an appeal was made to Field Marshal Viscount Alexander to give his support to an agitation which had started in Germany to obtain belated justice for his gallant opponent in the campaign in Italy, Viscount Alexander was forced to admit, “I cannot make any statement on Field Marshal Kesselring’s court-martial as I don’t know the facts.” All he could do in response to this appeal was to confirm “what I have already said,” namely, “I fought against the Field Marshal for a considerable period, both in North Africa and Italy, and I never had anything to complain of in his conduct of operations. He was a very able opponent and he and his troops fought a perfectly straight forward and fair fight against us.”27
So much at least is common knowledge to those familiar with the facts of the campaign in Italy. Less well known is the fact that the “pro-Italian sentiment of Kesselring” (“italophile Gesinnung Kesselrings”) frequently aroused angry comment at the Führer’s headquarters where Kesselring’s disposition to forgo military advantages rather than bring destruction upon the irreplaceable historical, architectural, and artistic treasures of Italy was regarded with little favour by Hitler and his entourage. Thus, thanks to his express orders, Rome was evacuated without resistance, with the consequence that the Allied tanks and mechanised columns were able to sweep through the city, unhampered by ruins and broken bridges, in pursuit of his hard-pressed troops. It must be left to future historians to decide whether General Mark Clark or the jaunty General Bernard Freyberg must bear the chief responsibility for that “tragic mistake, psychologically and militarily”, which led to the destruction of the Monte Cassino Monastery, but it is at least certain that Kesselring did all in his power to prevent this “tragic mistake” by refraining from occupying this famous shrine of Christendom with his troops, having previously arranged for the removal of its most precious treasures to a place of safety in the Vatican City.
Posterity will undoubtedly acknowledge a debt of gratitude to Field Marshal Kesselring for the preservation of so much which would otherwise have been destroyed when the allied war chiefs saw fit, as Mr. Churchill cheerfully puts it, “to drag the hot rake of war up the length of the Italian peninsula.” Like Hitler and his advisers at German G.H.Q., the Allied military leaders regarded the campaign in Italy from an entirely military point of view. Had not Kesselring been one of the few who, in the general frenzy then prevailing, retained some sense of proportion, who can doubt that many other “tragic mistakes” would have taken place?28 There is one good reason for thinking that, in regard to this subject, even Italian public opinion will change in time. If only ruins could be shown to foreign tourists where Milan Cathedral, St. Peters, and the Uffizi Galleries now stand, the Italian tourist trade would suffer enduring and incalculable loss. Even future generations of Italians may thus be led to recall Kesselring’s memory with gratitude.
The facts which led up to this war-crimes trial are not in dispute and make the attitude of the British authorities even more inexplicable. Italy had entered the war, in 1940, with no more justification or excuse than when, in 1915, she had declared war on her ally, Austria. On both occasions, she was undeniably guilty of embarking on a war of aggression, defined by Lord Justice Lawrence as “the supreme international crime”. In 1940, as in 1915, her motive was simply to be found among the victors at the end of the war. In 1915, her guess as to which side would be victorious proved right, and she was rewarded by being permitted to annex the Austrian Tyrol; in 1940 her guess proved wrong and, with a naiveté not lacking a certain charm, Italy then set about doing her best to change sides. Unfortunately, large forces of German troops had already entered Italy as allies, at the invitation and request of the Italian Government. This circumstance was, however, turned to account since it provided an opportunity to demonstrate by acts of violence to the men who had recently been allies and who had now become unwelcome guests, that Italy had changed, or desired to change, sides.
The spectacle of German troops defending Italian soil from invasion, a task from which he and the Italian Army had ingloriously retired, seems to have filled Marshal Badoglio with violent emotions, among which was possibly shame. At all events, from the security of Brindisi, this Italian “warrior” occupied himself sending forth wireless appeals to the Italian civilian population, calling upon them to murder every German within reach whenever possible and without mercy. When the probability that Germany would ultimately be defeated became a certainty, the response to these appeals, at first timid, rapidly gathered strength, although less, apparently, among Badoglio’s own political supporters than among his bitterest opponents, the Italian Communists. Thousands of German soldiers were stabbed or shot in the back, bombed or blown up by land-mines. All the time-honoured practices of the Spanish guerillas in their campaign against Napoleon’s armies were adopted by the Italian partisans, together with such innovations as the construction of grim booby-traps consisting of the severed heads of slaughtered prisoners fixed on stakes in such a way that if touched a hidden land-mine would be exploded. The German regular forces reacted to this campaign in precisely the same way as regular forces in the past had reacted when subjected to similar attacks by a civilian population. As in Spain during the Peninsular War and in Ireland during “the Troubles” of 1920, the troops frequently got out of hand, in modern terminology, “saw red”, and savage reprisals unquestionably took place. At the same time, the German authorities carried out official reprisals: hostages were taken and, after each outrage, a number were shot.
Two charges were made against Field Marshal Kesselring. First, he was accused of supporting drastic measures by his subordinates, and against him was quoted a general order issued by him authorising local commanders to take such measures as, at their discretion, they might consider necessary to protect the lives of their men. Secondly—and this seems to have been regarded as the main charge against him—he was accused of approving an order from Hitler himself that, following the explosion of a land-mine in the Via Rasella in Rome, by which 32 German soldiers were killed and 68 wounded, besides ten Italian civilians killed, including six children, a number of Italian hostages, held in custody as supporters of Badoglio, should be shot in the ratio of ten for every soldier murdered.
Had the court which tried Kesselring been composed of civilians, it would be easy to understand why it should appear outrageous in any circumstances that an innocent person should be executed for the crime of another. But the court was composed of experienced soldiers and the execution of hostages is unanimously upheld by the military authorities of all civilized countries as a coercive measure. Articles 453 and 454 of the British Manual of Military Law are explicit on the subject. Article 454 explains that “the coercive force of reprisals arises from the fact that in most cases they inflict suffering on innocent individuals.” Article 358 of the American Military Manual also authorises the execution of hostages as a necessary measure to safeguard the lives of combatant forces. If it be thought that Kesselring was condemned because the tribunal considered the ratio of 10 to 1 excessive, it becomes necessary to state that, when the French occupied Stuttgart in April, 1945, it was announced that hostages would be shot in the ratio of 25 to 1 for every French soldier murdered by the German civilian population; and that when the Americans entered the Harz district, execution was threatened in the ratio of 200 to 1 for every American soldier murdered.
The reason why it was considered so desirable to hush up the facts of this war-crimes trial are sufficiently obvious. The verdict was quite indefensible. The reason why it was possible to keep the facts from the public so long is also open to a very simple explanation. At his war-crimes trial at Manila in the previous year, General Tomoyuki Yamashita was provided with a team of American lawyers who not only ably defended him but carried his appeal to the Supreme Court of the United States. While they failed to save his life, one of his lawyers, Mr. A. Frank Reel, cleared his memory by writing a classic study of the case in which the full facts are set forth.29 Similarly two years later, Field Marshal Fritz Erich von Manstein was provided with English Counsel to defend him at his trial at Hamburg in 1949; to their efforts he owed his life, and one of them, Mr. R. T. Paget, Q.C., has since written an account of the proceedings which leaves in no doubt the grounds upon which and the methods by which a conviction was obtained.30
Field Marshal Kesselring, in contrast, was denied the services of English lawyers to defend him before the English military court instructed to try him. He was forced to rely on German lawyers quite unfamiliar with English legal conceptions and English military legal procedure. As citizens of a defeated state, his defenders were not free, like Mr. Reel and Mr. Paget, to carry on the struggle for justice after their professional services were completed. Victimisation for what the occupying authorities might consider excessive zeal was an ever-present possibility. It is, of course, a characteristic of all war-crimes trials that, usually, only those concerned with the defence show any disposition to dwell afterwards on the facts. In the Kesselring war-crimes trial, those concerned with the defence lacked the means to make known the facts, at least to the world outside Germany; and those concerned otherwise than with the defence have ever since rigidly preserved a prudent silence.
Unlike in most Routine War-crimes Trials, those dealing with the prosecution of Kesselring seem to have regarded a conviction as a necessary formality, a mere repetition of what had already been decided. The reason for this attitude was that three months before two of Kesselring’s colleagues, General von Mackensen and General Mälzer, had been sentenced to death in Rome on the same charges arising from the same facts as those now brought against Kesselring Although the military tribunal which assembled in Venice to try Kesselring was not the same as that which had so recently adjudicated in Rome, the Advocate General, the functionary whose role it was to advise the tribunal on points of law, was the same. It was obvious, of course, to everyone in court that an acquittal of Kesselring would amount to an admission that the Rome tribunal had erred—a simply unthinkable conclusion. Having advised on the same evidence once, the Judge Advocate saw no reason to change his mind. “His prejudice” writes Kesselring, “was glaring.” Comparing him with the official prosecutor, a Swiss newspaper commented tersely, “The Judge Advocate was the second, and the better, prosecutor.”
From one point of view, in particular, the Kesselring war-crimes trial is far more remarkable than the Nuremberg war-crimes trial. The tribunal which purported to adjudicate at Nuremberg was composed of lawyers sitting only six months after the termination of hostilities. Inevitably, their minds were still under the influence of wartime passions, and, if they erred deplorably in the case of Admiral Raeder, it can at least be said they meted out a sort of rough justice to some of the accused. As lawyers, they had no reason for feeling any particular understanding or sympathy for sailors like Admiral Raeder or Admiral Donitz, or for soldiers like Field Marshal Keitel or General Jodl.
On the other hand, the military court at Venice which tried Field Marshal Kesselring, was composed of soldiers of standing and repute, sitting two years after the conclusion of hostilities. They had before them a brother professional, not only a soldier of the highest rank but the hero of one of the greatest fighting retreats in military annals. At any other period of history, the minds of such a body would have been dominated by sympathy for a commander who, faced by an enemy superior in numbers, vastly superior in equipment, and enjoying undisputed command of the sea and air, had maintained an unbroken resistance, step by step, from the southern shores of Sicily to the foothills of the Alps, until his gallant troops, deprived of air support by lack of petrol and hampered at first by cowardly and later by treacherous allies, were engulfed, still undefeated, in the general ruin.
What is so particularly remarkable is that the charge against Field Marshal Kesselring was the one least likely to appeal to military minds—the charge that he had adopted severe methods to protect his hard-pressed troops from treacherous attacks from the rear by gangs of armed civilians. Most of the members of the Court were aware from personal observation of the nature and methods of the Italian underground movement against which Kesselring had had to contend. In similar circumstances they themselves would have adopted similar measures, measures which were, in fact, adopted without hesitation by the Americans six years later in the campaign in Korea in 1950, when their lines of communication were being raided by communist irregulars.
Very different had been the reaction of British officers in the past when the same circumstances had arisen. Thus, for example, Professor Charles W. C. Oman, in his Peninsular War, complains that, as a consequence of having witnessed the atrocities of the Spanish guerillas, many of Wellington’s officers developed a distinctly pro-French bias. In particular, he complains that one of Wellington’s officers, Sir William Napier, in his military classic, War in the Peninsula, became so biased that he was “over-hard on the Spaniards and over-lenient to Bonaparte … he invariably exaggerates Spanish defeats and minimises Spanish successes.”31
There was nothing exceptional or unique in the situation which led to Field Marshal Kesselring finding himself at the disposal of the foreign enemies occupying his country. Thus, France, in 1814, was as completely at the mercy of her conquerors as was Germany in 1945, and most of the French Generals had, at one time or another, faced the task of coping with the Spanish guerillas during the Peninsular War. But, although he had been much assisted in his operations by their activities, the Duke of Wellington felt himself under no obligation to avenge the execution of the assassins and saboteurs who had occupied themselves behind the French lines sniping isolated detachments, stabbing sentries, torturing prisoners, and mutilating the wounded. On the contrary we hear of him, only two years after the termination of hostilities, when commander-in-chief of the army of occupation in France, paying Marshal Massena a friendly visit at the house of another “war-criminal”, Marshal Soult, and exchanging with him reminiscences of the campaign in Spain. The idea that either of these famous soldiers ought to be put on trial for their handling of the Spanish “underground movement” apparently never entered Wellington’s mind. Even Marshal Suchet, who had particularly distinguished himself by the energy32 by which he had repressed the gangs of Spanish civilians which had harried his troops in Aragon, was permitted to end his days in honourable retirement in Paris without molestation by the foreign occupiers of his country.
Perhaps the most fitting concluding observation on the subject is that, although Field Marshal Kesselring was unfortunate not to have lived in earlier and more civilized times, he was, on the other hand, fortunate to have lived before the reversion to barbarism had proceeded so far that it had become a universal rule (to quote, once more, Field Marshal Montgomery): “after a war, generals on the defeated side are tried and hanged.”
In the autobiography which Field Marshal Kesselring wrote in retirement after his release in 1952, he deals with his treatment as a prisoner of war in British hands with remarkable reserve and moderation. When possible he pays tribute to the conduct of his captors, in particular to the officer to whom he surrendered, General Taylor, afterwards commander-in-chief in the Korean War, and to Colonel Scotland, the commandant of the notorious ‘Kensington Cage’ in London in which he was subjected to “interrogation”. He discloses that before his trial started in Venice in February 1947 he endured a period of solitary confinement lasting five months in Nuremberg waiting to be called to give evidence at the mass-trial there taking place, and refutes the comfortable belief held in Britain that after the sentence of death passed on him in Venice had been commuted to a sentence of imprisonment for life, he was detained in nominal detention for a short period as a face-saving measure to preserve the credit of the British military authorities. In fact, however, he was treated as a common criminal in Werl Prison where he spent his time, he tells us, gumming paper bags: he was not set free until the 24th October 1952 by what was called “an act of clemency.” He died on the 15th July 1960.
It must be confessed that in few respects can the Kesselring Trial be regarded as a typical Routine War-crimes Trial. Its purpose was entirely political, although it may at first be hard to see what political purpose could be served by paying attention to the complaints of the Italians against the Field Marshal. No one indeed was concerned to placate Italian public opinion but the very powerful Communist Party in Italy enjoyed the special patronage of Stalin whose menacing figure then overshadowed Europe. The trial took place during the early months of 1947 when the Stalin Myth was still almost universally believed and the British and American Governments still clung to the hope that by continued subservience to the wishes of the communist dictator he could be induced to act as a loyal and friendly ally in the crusade for the liberty and welfare of mankind. It was not until the following year that this pathetic delusion was shattered by the establishment by force of communist rule in Czecho-slovakia and the blockade by the Red Army of West Berlin. When in 1948 the grim prospect had to be faced that at any time Europe might be invaded and occupied by the Red Army, the scandal of Kesselring’s conviction was quickly driven from the attention of the public and the victim soon became a forgotten prisoner, gumming paper bags, in Werl Prison.
THE TRIAL OF MAJOR WALTER REDER
The trial of Major Walter Reder before an Italian military tribunal at Bologna in the autumn of 1951 may be regarded as a belated sequel to the trial of Field Marshal Kesselring before a British military tribunal in Venice in the spring of 1947, that is to say, four and half years before. Major Reder was charged with offences alleged to have been committed by him when commanding the Reconnaissance Panzer Unit No. 16 of the 16th Panzer Division, forming part of the German forces in Italy of which Field Marshal Kesselring was commander-in-chief.
This trial was one of the last of the series of war-crimes trials which began in 1945 immediately after the unconditional surrender of Germany. After the passage of six years wartime passions had to a considerable extent subsided and the trial in itself may be considered as a very favourable example of a Routine War-crimes Trial. The Italian army officers who composed the military tribunal in Bologna took their duties very seriously and listened carefully to all the evidence, not only for the prosecution but for the defence. Unfortunately, an acquittal was impossible owing to the political situation existing in Italy at the time. The trial took place in Bologna, a stronghold of the Italian Communist Party, and throughout the hearing angry mobs demonstrated outside the court house demanding the blood of the accused. An acquittal would have been widely resented in Italy as a deliberate affront to the Italian Partisan movement and might well have so aroused popular feeling as to have brought about the downfall of the weak coalition government then in power. Had a communist government then taken office, the officers composing the tribunal would probably have been charged with acquitting the accused owing to their secret sympathy with Fascism. In these difficult circumstances the tribunal did their best to administer justice: probably they thought that by condemning Reder to imprisonment they were saving his life by putting him out of harm’s way for a time, assuming that when he had been forgotten by his communist enemies, he would be surreptitiously set at liberty.
No doubt this would have been the ultimate outcome of his conviction but unfortunately for Major Reder, Marzabotto, the place nearest to the scene of his alleged offences, was chosen by the Communist Party as a place of pilgrimage at which Communist Partisans could gather annually to honour the memory of that heroic Resistance fighter Mario Musolesi (alias ‘Major’ Lupo) and his Red Star Brigade of Communist Partisans who died fighting to the last man against troops commanded by Major Reder, and at the same time to mourn the abominable massacre of the said Mario Musolesi and his gathering of unarmed, peace loving Italian civilians, known as the Red Star Brigade, by the troops of the said Major Reder.
Accounts of the war-crimes trials which followed the Second World War are rendered tedious by the fact that precisely the same issue arose in so many of them. Exact statistics are not available but probably in at least three quarters of these prosecutions the complaint against the accused was that he had dealt harshly with civilian irregulars and terrorists who had been attacking his troops in the rear. In all these cases there was generally only one issue to be decided: were the victims of the accused in offensive civilians so unfortunate as to have found themselves in the midst of hostilities or were they really combatants in civilian dress? War-crimes tribunals invariably accepted the former contention.
The Italian war-crimes tribunal which tried the Italian charges against Major Reder adopted the novel course of accepting both contentions. The gallant but muddle-headed officers who composed this tribunal held as a fact that the inhabitants of a few tiny villages in the mountains south of Marzabotto in which a gang of communist terrorists was surrounded and annihilated by troops some of whom were under the command of Major Reder, were ruthlessly slaughtered as a reprisal for the atrocities previously committed by this gang of terrorists. At the same time the tribunal held that the inhabitants of these mountain villages had well earned the Gold Medal for Valour collectively awarded them posthumously “for heroically resisting the Fascist attack.”
Major Reder was born in Freiwald in Bohemia in 1915, a subject of the Austro-Hungarian Empire. He had a distinguished career in the German Army as leader of front-line troops, serving in France in 1940 and later in Russia where at the battle of Kharkov in March 1943 he was so severely wounded that his left forearm had to be amputated. For his services in Russia he was awarded the Knight’s Cross of the Iron Cross. In May 1944 he was sent to Italy and there took part in the desperate battles in Tuscany, fought to hold up the advance northward of the Allies. The division to which he belonged was signalled out for special and generous praise by Field Marshal Lord Alexander in his report on the operations between the 3rd September 1943 and the 1st July 1944. (See the Supplement to the London Gazette dated the 4th June 1950, No. 38937). In particular, speaking of the fighting at Cecina on the 29th June to the 1st July 1944, the British commander-in-chief observes, “The 16th Panzer Division had been brought in here to strengthen the German defence and fought with skill and fanaticism.” Later, referring to the struggle for Rosignano during the first week in July, Lord Alexander records, “the town was defended by the 16th Panzer Grenadiers against the 34th United States Division with the same stubbornness as they had shown at Cecina.”
As winter approached the desperate attempts of the Allies to achieve a breakthrough were intensified. Nevertheless at this critical moment Major Reder and his unit of crack troops had to be withdrawn from the front line facing the 34th U.S. Division in order to deal with a strong group of Communist Partisans called the Red Star Brigade which from a stronghold in the mountains south of Marzabotto was threatening the main road and railway communications between the front and the German headquarters at Bologna. Major Reder performed his mission brilliantly and swiftly. The Red Star Brigade, numbering over 2,000 civilians armed with heavy machine guns and mortars, under the command of the celebrated Communist Partisan leader who called himself ‘Major’ Lupo, was encircled and annihilated. It was with reference to this operation on the 29th September 1944 that the main charge against Major Reder was brought. Upon it was based the notorious propaganda myth called the Marzabotto Massacre.
Major Reder remained in Italy throughout the following autumn and winter. In February 1945 he was transferred to Hungary across which Stalin’s hordes were then sweeping in overwhelming strength. He was again severely wounded. After the general capitulation of the Axis Powers, he returned to his mother’s home in Salzburg. Here he was arrested by the American occupying forces on complaints lodged with them against him by the Italians.
For two years—from September 1945 to September 1947—Major Reder was a prisoner in an American concentration camp at Glasenbach in which were detained some 7,500 men and 500 women kept prisoner on one pretext or another. Presumably the lengthy task of investigating so many distinct cases provides the reason why the Americans took so long in reaching a decision with regard to the charges against Major Reder. When at last his captors found time to investigate his case they decided that he had no case to answer. As however the charges had been lodged by the Italians and the British were in military occupation of Italy, they rid themselves of responsibility for his fate by handing him over to the British.
The British military authorities investigated the Italian charges against Major Reder with praiseworthy care. At first his interrogation was carried out by a Major J. E. McKee. Later his interrogation was completed by a Major W. G. Aylen. Neither of these gentlemen spoke German so that the services of an interpreter, a Dr. Hans Susseroth, was necessary. At Major Reder’s trial in Bologna, this man Susseroth gave evidence that he himself had interrogated the accused who had denied taking part in any operations against the Italian Partisans.
In affidavits sworn for Major Reder’s appeal to the Supreme Italian Military Court in Rome, both Major McKee and Major Aylen swore that Susseroth had given false evidence. He had been employed, they both testified, only as an interpreter, never as an interrogator. Further, they both testified that Major Reder had freely admitted having directed the operations against the Red Star Brigade south of Bologna in which its commander, ‘Major’ Lupo was killed. In fact Major Reder had claimed that his detachment had borne the brunt of the fighting on that occasion.
Major McKee concluded his affidavit by stating:
“Throughout his interrogation by me, Major Reder behaved with dignity. He repeatedly affirmed his innocence. He denied ordering excesses against the Italian civilian population or having received orders from his superiors to carry out excesses. On one occasion Major Reder could without difficulty or danger have escaped from British custody. He explained that he had refrained from escaping as he was quite prepared to face a trial on the charges made against him.”
As we have seen, the British military authorities had already brought to trial and convicted Major Reder’s commander-in-chief, Field Marshal Kesselring. They had also afterwards disposed of his immediate superior, the divisional commander, General Max Simon, at a war-crimes trial at Padua in January 1948 at which he had been sentenced to death and then sent to join Field Marshal Kesselring in Werl Prison. With regard to Major Reder therefore two obvious courses were open to the British military authorities. If they came to the same conclusion as the American authorities that he had no case to answer, their plain duty was to release him at once. If however they were satisfied that a prima facie case against him had been made out, they could put him on trial before a British military tribunal as they had done with his superior officers, Field Marshal Kesselring and General Max Simon.
Neither of these courses were adopted. On the 13th May 1948 Major Reder was handed over by the British military authorities to the Italians so that the latter might try their own charges against him.
The present writer regrets that he has been unable to find any clue suggesting an explanation for this extraordinary procedure. In itself, this is not perhaps remarkable. The working of the British military-legal or legal-military mind during the post-war years is generally quite beyond mere human comprehension. Possibly closer investigation of the political situation in May 1948 would disclose that there was some special reason at that moment for making a gesture which would conciliate Italian public opinion. Some cynical politician in London may have decided that an obscure German officer would conveniently serve as a subject for such a gesture. But a simpler but adequate explanation would be that the British authorities in charge of Major Reder’s case had got themselves in a muddle and therefore decided that the easiest way out of it was to follow the precedent set by Pontius Pilate long ago. It was at any rate clear that the Italians were convinced of Major Reder’s guilt. If therefore the case was handed over to the Italians so that they could act as judges of their own charges, the British could wash their hands of the matter with the confident assurance that it would be quickly disposed of by the prisoner’s death.
Even from a strictly technical legal point of view the procedure adopted in the case of Major Reder seems utterly indefensible. It is true that by the Moscow Declaration of the 30th October 1943 the victorious Powers had conferred on themselves the right to swop prisoners of war between each other in disregard of their treaty obligations under the Hague and Geneva Conventions. Even assuming this swopping of prisoners of war was justified as between the victorious Powers, no authority existed for handing prisoners of war over to a defeated Power. In October 1943 Italy was an ally of Germany and the fortunes of war had turned finally against them. Shortly afterwards Italy abjectly surrendered and her efforts to join the winning side were coldly rebuffed. It is not easy to define what exactly was her status when Reder was handed over to the Italian authorities in 1948 but by no stretch of imagination can it be said that Italy emerged from the Second World War as a victorious Power!
Earlier in this chapter a letter dated the 19th December 1960 written by a high official of the British Foreign Office was quoted verbatim. It sets out clearly what is the official attitude of the British Government to this distressing subject. It may be summarised as follows: “No doubt our military authorities in Italy in 1948 made a grave and deplorable error of judgment when they handed over this prisoner of war in British hands to our former enemies, the Italians. No doubt Major Reder was treated with callous indifference as to his fate: probably his surrender by us to the Italians was contrary to international law. But this regrettable error having been made, no good purpose would be served now by investigating it because once this prisoner of war had passed out of our hands we ceased to have any rights concerning him. The Italians found their own charges proved against him and if they had shot him we could not have complained. In that case he would by now be entirely forgotten and we should not now be troubled to find excuses for the inexcusable. As it is, he unfortunately still lives, a prisoner in an Italian prison, but as we can do nothing to secure his release, there is no good talking about the subject.”
That Major Reder is not now a completely forgotten prisoner in an Italian prison is owing to a fortunate chance. It happened that the present writer was instructed professionally by Reder’s legal advisers to trace and obtain affidavits from the two British officers above mentioned who had interrogated him while he was in British custody, for the purpose of an appeal against conviction which was being made to the Supreme Italian Military Court in Rome. In this way the present writer learned the facts of this case which he later set out in a chapter of a book which received wide publicity not only in Britain and the United States but in Germany and Spain.33 Many influential people have since interested themselves in securing Reder’s release—including in Britain, the late Lord Hankey and Field Marshal Lord Alexander, and in Italy, the late Pope Pius XII. So far the only result of these appeals for justice has been repeated soothing assurances that Reder would be released immediately a propitious moment arrived. Having waited in captivity for twenty years, Major Reder is still waiting for this propitious moment to arrive.
The above mentioned book, published in 1958, gave the first outline of the facts of Major Reder’s case, hitherto entirely unknown outside Italy. Necessarily it was a one-sided account since it was based entirely on information supplied by the lawyers who had defended him at his trial. In 1961 however the Italian Ministry of the Interior took the unparalleled step of publishing a White Book setting out in full the judgment of the military tribunal in Bologna which convicted Major Reder in 1951 and the judgment of the Supreme Military Court in Rome in 1954 which rejected his appeal.
By publishing this White Book the Italian Government conferred on Major Reder a unique distinction: in his case, alone of all the thousands of cases of prisoners of war subjected to trials for alleged war-crimes, was it considered desirable by his captors to issue an official statement justifying their treatment of him. However contradictory the facts found by the tribunal and muddled its reasoning from these facts, the publication of this White Book at least shows that the Italian legal authorities, unlike the legal authorities of other countries responsible for showing that justice had been done, felt in this case they had nothing to hide. It had long been the invariable practice of war-crimes tribunals at the end of the hearing simply to announce that the accused had been found guilty, leaving this conclusion a subject for guesswork. Often when the indictment contained a number of distinct charges the victim was left in complete doubt whether he had been convicted on all or only some of them. The verdict in fact merely intimated that the adjudicating tribunal had reached the opinion that he deserved to be hanged. The Italian military tribunal which tried Major Reder, on the other hand, stated clearly in their judgment their findings of fact and the reasons which had led them to convict him. Their painstaking and conscientious judgment contrasts strikingly with the vague and slipshod judgment delivered in the relatively well-conducted war-crimes trial before a British military tribunal of Field Marshal von Manstein in Hamburg in 1949.
A judgment which merely pronounces a defendant guilty without stating the facts upon which this conclusion is reached is immune from adverse criticism. It reflects therefore the highest credit on the Italian military authorities that they have dealt with the charges against Major Reder, if belatedly, in so judicial a manner. On the other hand, by conducting his trial in a judicial manner and later publishing the findings of fact and the reasoning of the tribunal which led them to convict him, they exposed the weakness of the case against him.
As is usual in war-crimes trials, a number of ancillary charges were made against Reder, such charges being generally intended to make the indictment seem more formidable. The main charge against him upon which his fate depended related to the encirclement and annihilation of the above mentioned group of Communist Partisans known as the Red Star Brigade. The headquarters of this group of heavily armed civilians was at Caprara, a tiny village on the upper slopes of Monte Sole, a mountain, 2,190 feet high, on a ridge between two mountain streams, the Reno and the Setta, running parallel with each other about four miles apart north-eastward from the Apennines into the Po Valley. From this stronghold the Red Star Brigade struck at the German lines of communication by road and railway along the valleys of the Reno and the Setta. Convoys were continually ambushed, railway bridges and tunnels damaged by sabotage, isolated German garrisons attacked. The methods of Red Star Brigade were similar to those of other Communist bands operating in Italy in the rear of the German armies: in order to shake the morale of the regular troops opposed to them, individual soldiers caught unawares were shot or stabbed, prisoners were tortured and then murdered, the bodies of the dead were mutilated.
On the 29th September 1944 the stronghold of the Red Star Brigade was attacked by converging columns. The attack was under the general direction of General Max Simon: Major Reder directed the attack from the east from across the Setta. The Partisans to the number of some two thousand armed with machine guns and mortars offered a desperate resistance which was quickly broken. The Red Star Brigade was annihilated: its leader “Major” Lupo was killed.
In its findings of fact the adjudicating military tribunal, as the White Book now discloses, accepted two contradictory contentions. The tribunal held that Reder’s men ruthlessly slaughtered the unarmed and inoffensive inhabitants of three small villages, Caprara, Casaglia and Cerpiane, lying on the upper slopes of Monte Sole. It had been pointed out by the defence that the inhabitants of these places had afterwards been collectively awarded the Gold Cross for Valour in recognition of their heroic resistance “to the Fascist invaders”. With the howls of the communist mob demonstrating in the street outside the courthouse, the tribunal could hardly be expected to disparage this award. The tribunal held, therefore, that the inhabitants of the three villages had defended themselves heroically, while at the same time they had allowed themselves to be butchered like helpless sheep.
A half-hearted attempt was indeed made to reconcile these contradictory findings by holding, without a shred of evidence in support, that a complete separation took place between the local inhabitants and the civilian warriors of the Red Star Brigade. They declared that “Major” Lupo, finding himself surrounded, withdrew his men from the three villages above mentioned to the summit of Monte Sole for a last stand, leaving the inhabitants of these places “to the chivalry and humanity of the enemy:”
Examination of a large scale map will immediately disclose that this contention is nonsense. Caprara, the headquarters of the Red Star Brigade, is only 548 yards from the summit of Monte Sole, from which the other two places mentioned are less than half a mile away. No separation of the civilian warriors of the Red Star Brigade from the local inhabitants of the area, as found by the tribunal, was therefore possible. Also the suggestion is fantastic that an experienced guerilla fighter like Lupo would withdraw his men from the shelter of these places in order to concentrate them on the bare summit of Monte Sole, where they would have been quickly obliterated by artillery fire.
There can be no reasonable doubt the last stand of the Red Star Brigade took place in Caprara and the two neighbouring villages, Casaglia and Cerpiane. It may well be believed that the German troops took little trouble to distinguish between civilians using their weapons and civilians who had thrown away their arms. There is no reason to doubt also that when the Partisans in houses in these villages refused to surrender the attacking forces threw grenades through the windows regardless of any women and children who might be sheltering therein.
The tribunal expressed horror at such ruthlessness. No doubt some women and children lost their lives although the number must have been small since these places near the summit of Monte Sole, described in the White Book as villages, were in fact mere clusters of huts inhabited by goatherds and shepherds who browsed their flocks on the barren mountainside. A prominent feature, it may be noted, of the Marzabotto Myth was the burning of Marzabotto Church to which “the entire population of the town to the number of 1,700 had fled, and there perished, including the priest.”34 The White Book makes it clear that no fighting took place in Marzabotto: in the judgment of the tribunal the Church of Marzabotto reappears as the tiny shrine or chapel at Cerpiane in which, so the tribunal held, fifty persons lost their lives.
Judging from the White Book the tribunal took no account of the surrounding circumstances existing at the time, and the methods by which warfare had come to be waged in Europe. It was no doubt a dreadful thing that on the 29th September 1944 women and children should have lost their lives from bombs thrown into their homes in order to compel the defenders of the village in which they lived to surrender. But in that year and during the previous two years, on every night suitable for air attack, hundreds, and often thousands, of civilians, men, women and children, had been killed throughout Germany not by mere hand grenades but by “block-busters”, deliberately dropped on crowded working-class areas in accordance with the Lindemann Plan adopted by the British Government in March 1942. The story of what took place in the mountains south of Marzabotto should be judged against the background of contemporary events.
In conclusion, it was proved at the trial that whatever excesses might have been committed on the upper slopes of Monte Sole, Major Reder took no personal part in them. Owing to a recent wound, throughout the action he remained on a hillside on the other side of the Setta and directed the advance of his men by wireless.
No admissible evidence that he personally had directed, ordered or countenanced reprisals against civilians was proved against him. As a one-armed man he would have been easily identifiable. No evidence of such identification was given.
The claim is often made that this is a Humanitarian Age in which not only the thought of capital punishment is repugnant but also long terms of imprisonment. Thus in 1962 the British public was shocked to learn that a Greek communist terrorist, Tony Ambatielos, still remained in captivity after sixteen years. The fact was ignored that the reason for his continued detention was his refusal to give an undertaking not to resume his efforts to establish a communist dictatorship in Greece. The general view, even in circles hostile to Communism, was well expressed by The Times which declared that, however heinous this man’s crimes may have been, sixteen years was too long to keep a criminal in captivity.
In response to public opinion in Britain at the present time, sentences of imprisonment for life are carefully reviewed after only twelve years and the culprit, however conclusive his guilt, is released. Major Reder has been in prison now for over twenty-two years after a war-crimes trial in which his accusers acted as judges of their own charges.
It may perhaps seem that the attention paid here to the case of Major Reder is disproportionately long. It has been dealt with in some detail, partly because it is a favourable example of a Routine War-crimes Trial, but more because it happens the victim is still alive and is still suffering from the miscarriage of justice committed against him. Nearly all the other victims of war-crimes trials are either dead or have long ago been released. Responsibility for his fate rests fairly and squarely on the British Government. In a professedly humanitarian age, a further recital of the facts should lead to belated rectification of an indefensible miscarriage of justice.
THE TRIAL OF GENERAL YAMASHITA
The trial of General Tomoyuki Yamashita was in several important respects very unlike the trial of Field Marshal Kesselring. The issues in the trial of “the Tiger of Malaya” were not overshadowed by the knowledge that an acquittal of the accused would discredit the previous judgment of a tribunal of brother officers, dealing with the same facts, in an earlier prosecution.
Field Marshal Kesselring was at least tried by a court composed of fellow Europeans belonging to a nation which only since 1914 could be described as national enemies: General Yamashita, on the other hand, was a member of the Yellow Race and he was tried by a court composed of members of the White Race by which at the time the Japanese were regarded as presumptuous Oriental dwarfs who had dared to challenge White supremacy. Although during recent years, beginning with the trial of the two anarchists Sacco and Vanzetti in 1927 down to the trial of the communist traitor, Alger Hiss, in 1949, American methods of administering justice have been subjected to much patronising criticism by British lawyers, the trial of General Yamashita in many ways compares very favourably with the trial of Field Marshal Kesselring. Under the American legal system this distinguished Japanese prisoner of war was provided by his accusers with American Counsel to defend him, lawyers familiar with American legal procedure, and it was made possible for him on conviction to appeal to the American Supreme Court. Kesselring, on the other hand, had to rely on German lawyers who knew nothing about British military legal procedure. No possibility existed for him to appeal against conviction to the House of Lords, since, by an amusing legal fiction, British military tribunals, so far as prisoners of war are concerned, are deemed infallible.
These trials are alike in that they both ended in grave and indisputable miscarriages of justice, Yamashita being hanged and Kesselring being condemned as a result of his conviction to gum paper bags in the company of common criminals until after five years he was released by what was called “an act of clemency”. The ultimate consequences of the conviction of Yamashita, however, are certain to be graver and far more enduring than the conviction of Kesselring. By posterity Kesselring will be remembered merely as one of a number of able European soldiers who were wrongly convicted by courts composed of other European soldiers during a period of acute mental disturbance following a European civil war which was conducted by both sides with hitherto unparalleled barbarity. Yamashita, on the other hand, will be remembered as a member of the Yellow Race who was wrongly convicted by a court composed of members of, at that time, dominant White Race. In a world which has come to profess abhorrence of racial discrimination in any form, his trial will long be cited, rightly or wrongly, as an example of the methods by which Western Imperialism strove to keep in subjection the coloured peoples of Asia.
Without question General Yamashita was one of the most gifted military leaders who fought in the Second World War. It has been customary to attribute the disastrous outcome of the Malayan Campaign to the mistakes of Yamashita’s British opponents. This is unfair both to them and to him. The task entrusted to him at the outbreak of war by the Mikado might reasonably have been dismissed as impossible by the British High Command. In brief, he was ordered to land an army of some 50,000 men on the north-eastern coast of the Malay Peninsula, a distance of 1,700 miles from the nearest Japanese territory, the island of Formosa, in spite of the fact that he enjoyed no assured command of the sea; then to advance southward down the entire length of the peninsula, a distance of over 350 miles, along roads through dense jungle, overcoming on the way the resistance of the defending forces, numbering nearly 100,000 men; and finally to capture the great fortress of Singapore on an island separated from the mainland by a deep channel half a mile wide. It only remains to add that the Malay Peninsula at its widest part is only 150 miles across from east to west and the main road running southward crosses half a dozen streams, each one of which offers a good defensive position to a defending army. No blame therefore attaches to General Percival and his advisers if they dismissed this operation as too hazardous for any sane general to undertake.
Nevertheless General Yamashita achieved what might reasonably have been regarded as the impossible. On the seventieth day after the first landing of Japanese troops on the coast of Malaya; the fortress of Singapore, after an assault lasting eight days; surrendered. 90,000 British, Indian and Australian troops laid down their arms.
This astonishing triumph shattered for ever the legend of the invincible military supremacy of the White Race which dates from the days of Marathon. The consequences of this were not expunged by the fact that four years later the Japanese were forced by the overwhelming military and industrial strength of Great Britain and the United States, aided by a stab in the back by Soviet Russia and the dropping of the first atomic bombs, to sign humiliating terms of surrender. No triumph, however spectacular, could restore the prestige of the White Man upon which Western Imperialism in Asia had for so long securely rested. As a consequence of Yamashita’s campaign in Malaya the peoples of India, Pakistan, Ceylon, Burma, Malaya, Cambodia, South Vietnam, North Vietnam, Laos and Indonesia now enjoy—if enjoy be the right word—independence. Only the inhabitants of Japan have failed to benefit from their own achievements. Like the German troops who invaded Russia in 1941, and who were first received with joy as liberators from the tyranny of Stalin, the Japanese soon made themselves hated by the inhabitants of the countries which they overran by their arrogance and brutality. In consequence, although the peoples of Asia owe their present freedom from Western Imperialism to General Yamashita’s victories, they entertain no gratitude or kindly feelings for the Japanese. The Japanese Empire, deprived of all its overseas possessions, is now a satellite state of the United States.
The trial of General Yamashita in Manila in the autumn of 1945 was fully and lucidly recorded in a book written shortly afterwards by his leading Counsel, A. Frank Reel.35 It begins with a brief outline of Yamashita’s career. He was the son of a country doctor in a remote district of Japan and although without wealth or family influence he won a place in the Cadets’ Academy after a brilliant career at school. Yamashita owes his place in history entirely to his epoch-making campaign in Malaya which culminated after ten weeks with the capture of Singapore on the 15th February 1942. For two and a half years thereafter, during which the fate of Japan was decided, his career was uneventful. Owing to the jealousy of his rivals at Army headquarters in Tokyo, and in particular of the all-powerful General Togo, he was removed from the direction of active operations and sent to command the Japanese forces in garrison in Manchuria. It was not until the fortunes of war had irrevocably turned against the Japanese that Japan’s most brilliant general was sent to take command in the Philippines, by then threatened by an American invasion in overwhelming strength. Yamashita arrived in the Philippines on the 7th October 1944. Ten days after his arrival the American landing took place.
The charges brought against General Yamashita did not relate to his direction of the Malayan Campaign, although no doubt the resentment felt for the humiliation of the dominant White Race by an upstart people of yellow dwarfs inspired these charges. Neither was it suggested that he was in any way responsible for the enormities committed during the building of the Burma Road or in the Japanese prisoner-of-war camps. The charges related solely to happenings in the Philippines between the 7th October, 1944, and the 3rd September, 1945, when Yamashita on the express command of the Emperor surrendered.
There is no dispute concerning the situation which existed in the Philippines when Yamashita took over the command of the 14th Army Group garrisoning this American overseas colonial possession.36 After the fall of Corregidor on the 5th May, 1942, and the surrender of the American regular troops, resistance was continued by irregular units of Filipinos armed and financed by the Americans. Most of the aboriginal inhabitants of the Philippines were what was then described by their White rulers as heathen savages, a term which has fallen into disuse as wounding to the susceptibilities of the Afro-Asian bloc in U.N.O. For centuries down to 1899 they had waged guerilla warfare against the Spaniards, and for four decades after that against their new American masters. After 1942 they continued this struggle, this time against the Japanese invaders and now armed with modern weapons. Their methods of waging guerilla warfare were those which might be expected of heathen savages but which, it must be confessed, were not fundamentally different from those being employed by those Christian peoples of contemporary Europe who were subject to enemy occupations. Japanese units were ambushed and massacred; prisoners and wounded were tortured and murdered. The Japanese, as might be expected, retaliated with energy and enthusiasm. For two years one horrible atrocity was matched by another; terrorism was met by terrorism. After years of inconclusive guerilla fighting in China, the Japanese had become accustomed to dealing drastically with partisan irregulars. Like the French ten years later when faced with insurrection in Algeria, the Japanese regularly employed torture when interrogating suspects, burned villages and massacred their inhabitants. When it became clear that Japan’s defeat was certain, the irregulars intensified their ferocious attacks and the Japanese reprisals became even more wholesale and savage.
This admittedly was the situation in the Philippines which Yamashita found when he arrived there in October 1944. He was handicapped from the outset by the fact that he had never even set eyes on the Philippines before, and knew nothing of the inhabitants or the geography of these islands. He was further handicapped by contradictory and often impossible orders from the Japanese army headquarters in Tokyo, and by the fact that the naval forces and the air force units defending the Philippines were under separate commands. When, ten days after his arrival, the American invasion began, the combined effect of intensive bombing by the American Air Force which held undisputed command of the air and sabotage of the roads and railways by the irregulars, quickly led to Yamashita being completely cut off from most of the units under his command. In these circumstances it is hardly surprising that the discipline of many of the Japanese troops gave way. They defended themselves blindly and savagely. Undeniably horrible atrocities were committed. There is no reason to reject the allegation that 25,000 unarmed non-combatant civilians were slaughtered. Yamashita was gradually driven back into the mountainous northern end of the island of Luzon. He continued to resist stubbornly until Japan’s surrender in September 1945.
General Yamashita surrendered on September 3rd. On September 25th he was charged with being a war-criminal: two weeks later he was arraigned and served with an indictment with sixty-four particulars. His trial was fixed for October 29th, so his defenders were given less than three weeks to study this lengthy document and to prepare his defence. It is thus hardly surprising that Mr. Justice Rutledge of the United States Supreme Court in his dissenting judgment commented that “the accused had been rushed to trial with needless and indecent haste.” Mr. Frank Reel does not hesitate to attribute the refusal of the tribunal to grant proper time to prepare the defence to express orders sent them by General MacArthur, the supreme Military Authority in the Far East, to proceed with the work of liquidating the prisoners without delay.
It was not suggested by the prosecution that General Yamashita had been personally present at any of the numerous atrocities which were commited in various parts of the Philippines between October 1944 and September 1945, or that he had ordered or incited their commission. The prosecution maintained that as he was commander-in-chief in the Philippines he was responsible for everything his troops did during the period he commanded them.
The Tribunal convicted General Yamashita of having “failed to provide effective control over his troops”, a crime hitherto unknown in the annals of jurisprudence. He was not convicted of having done anything or ordered or incited anything to be done: he was convicted of failing to do something. The Tribunal did not find that it was within his power to do what they found he had failed to do, namely to control his troops. So it would be more accurate to say he was convicted not for doing or failing to do anything, but for being the commander of demoralised troops who, without his knowledge or approval, committed crimes.
To do them justice the Tribunal made no pretence of being an impartial body. Their duty was to carry out the wishes of the American Commander-in-Chief, General MacArthur. Several times, Mr. Reel tells us, he and the other defence counsel were rebuked behind the scenes for being obstructive. “You men are not knights in armour jousting,” General Reynolds told them, “You are officers of the Army and of this court and you are detailed to help us find the facts, not score points over the prosecution”.
General Yamashita’s calm dignity seems to have aroused the personal hostility of the prosecuting counsel. Contrary to the accepted practice in war-crimes trials, the prisoner appeared in court in his uniform as a general of the Japanese army with four rows of campaign ribbons. Colonel Meek, one of the prosecuting counsel, said to Mr. Reel, “Damn it, it makes me mad, seeing him decked out in uniform. He steals the show: he dominates the court room! If I had my way I’d put him in prison overalls and put chains on him.”
Mr. Reel observes, “Even in overalls and chains General Yamashita would have stolen the show and dominated the court room. He personified dignity and serenity.”
So outraged were Mr. Reel and the other counsel for the defence at the way the trial had been conducted that they determined not to give up the fight as lost after the verdict and the sentence, death by hanging, had been pronounced. Nominally, there is no right of appeal from a verdict of a court martial to a civil court. In this case, however, the court had convicted the prisoner of an offence for which no one had ever been convicted before. Further, the court had admitted hearsay evidence which made it possible to maintain that the trial was a breach of the Fifth Amendment of the American Constitution which guarantees a fair trial to any person accused of a crime by the Federal Government. It was decided, therefore, to apply to the Supreme Court of the United States for its ruling on these and other objections and for a stay of the execution until this ruling had been obtained.
A frantic race against time ensued. Application had first to be made to the Supreme Court of the Philippines and then when this application was inevitably rejected, to appeal against the rejection to the Supreme Court in Washington. The prosecution was deliberately obstructive, evading service of notices and omitting to supply copy documents. In the end the Supreme Court, which grants on an average only one application made to it out of seven, was induced to act. As General MacArthur refused point-blank to postpone the execution, the Supreme Court ordered a stay of further proceedings. Thereafter the War Department granted every assistance. Air transportation—”No. 1 priority”—was given to Mr. Reel and two of his colleagues. On December 25th, 1945, they set off on a flight half way round the world from the Philippines to Washington. On January 7th, 1946, General Yamashita’s appeal was heard by the Supreme Court.
It is often said the Supreme Court upheld the verdict of the Manila military tribunal. This is incorrect. Seven judges adjudicated and five of them held they had no jurisdiction to enquire into the findings of a court martial. The court, they maintained, could not concern itself “with the guilt or innocence of General Yamashita”. If a wrong decision had been made on disputed facts, correction was the duty of the superior military authority, that is to say, of the Commander-in-Chief, General MacArthur. In the majority judgment the objection was evaded that the fundamental legal rights guaranteed by the Fifth Amendment had been disregarded by the admission of hearsay evidence. “It is unnecessary to consider here what in other situations the Fifth Amendment might require. Nothing we have said here is to be taken as indicating any opinion on the question of the wisdom of considering such evidence.”
Only an American lawyer is competent to express an opinion whether this majority judgment of the Supreme Court was technically justified. Mr. Frank Reel maintains strongly that it was not. In his brilliant book, however, he gives no indication that he realised that far more was at stake than the life of a single Japanese general. To have granted the appeal would have led to the most far-reaching and most serious political consequences. One member of the Court was Mr. Justice Felix Frankfurter who was no mere learned lawyer, but as the intimate friend and confidant of the late Franklin D. Roosevelt, had for many years advised the President on the latter’s tortuous foreign policy, and knew all there was to know concerning the international political situation. Although Frankfurter took no active part during the hearing of the appeal in court, we may be sure that he dominated his colleagues in their deliberations behind closed doors afterwards. To him it would have been clear that expediency demanded that the Supreme Court should reject General Yamashita’s appeal and above all refrain from expressing any opinion on the legality and advisability of ignoring rules of evidence and admitting hearsay testimony. The contention of Yamashita’s defenders that by ignoring rules of evidence and admitting hearsay testimony the military tribunal at Manila had failed to give Yamashita the fair trial to which he was entitled under the American Constitution might be described as veritably political dynamite. The tribunal had admittedly done this in accordance with the regulations for the disposal of Japanese prisoners of war drawn up by General Douglas MacArthur on the authority conferred on him by the President. Now MacArthur, a professional soldier with no knowledge of law, had merely adopted the innovations laid down for the trial of the major Nazi war-criminals at Nuremberg in the Charter of the London Agreement.37 Naturally he felt himself justified in assuming that the team of eminent jurists who had drafted the Charter knew their business. No doubt he felt he could hardly go wrong if he adopted the conclusions reached by such legal experts as Lord Justice Wright, one of the most distinguished members of the British Court of Appeal, and Ivan Nikitchenko, whose knowledge of Soviet law had so won him the esteem of Joseph Stalin that he had entrusted him with the task of preparing for the trial of the major Nazi war-criminals and had later sent him to represent the Soviet Union at the Nuremberg Trials in order to ensure that the verdict reached would confirm the verdict of guilt already pronounced by himself and the other chiefs of state at the Yalta Conference. No blame certainly could attach to General MacArthur for blindly following such eminent legal authorities.
The consequences, nevertheless, were extremely embarrassing, as no doubt Mr. Justice Frankfurter pointed out to his colleagues. In the circumstances, can it be doubted that he urged his learned colleagues not to waste their time debating whether one Japanese general should be hanged or should be allowed to end his days in retirement. They should realise, he no doubt pointed out, that it would be impossible to condemn MacArthur’s regulations for Yamashita’s trial without condemning the almost exactly similar regulations laid down in the Charter to the London Agreement under which at that very moment the mass trial of the major Nazi war-criminals was taking place at Nuremberg. Their distinguished colleague, Mr. Justice Jackson, was at Nuremberg acting as chief American prosecutor. Would he not regard it as an undeserved affront if he was told that the Supreme Court, of which he was a member, had ruled the proceedings in which he was taking a leading part was not a fair trial within the meaning of the Fifth Amendment because of the rules under which it was being conducted. Far more important, however, was what would America’s mighty ally, Joseph Stalin, think of such a finding. Already he was showing a disposition to be hostile. If they accepted Yamashita’s appeal a grave international crisis would result, the consequences of which no man could foresee.
To avoid precipitating an international crisis, five of the seven judges of the Supreme Court hearing Yamashita’s appeal very prudently held that if the Manila tribunal had been at fault in convicting him, it was not within their jurisdiction to set matters right, which was the business of the supreme military authority in the Far East, in other words, of the Commander-in-Chief, General MacArthur.
As so often happens in war-crimes trials, the dissenting judgments delivered are the most memorable features of the proceedings. Thus the dissenting judgment of the Indian representative on the Tokyo War-crimes Tribunal, Mr. Justice Rahabinode Pal, will be remembered long after the majority judgment delivered at that notorious war-crimes trial has been forgotten. Similarly the dissenting judgments which Mr. Justice Murphy and Mr. Justice Rutledge delivered regarding General Yamashita’s appeal to the U.S. Supreme Court will always be honoured as emphatic re-assertions of long established legal principles.
Mr. Justice Murphy in his judgment declared:—
“The Fifth Amendment guarantee of due process of law applies to ‘any person’—American citizens, aliens, alien enemies or enemy belligerents—who is accused of a crime by the Federal Government or any of its agencies.
General Yamashita was therefore entitled to a fair trial as to any alleged crimes and to be free from charges of legally unrecognized crimes that would only permit his accusers to satisfy their desires for revenge.
General Yamashita was, however, rushed to trial under an improper charge, given insufficient time to prepare an adequate defence, deprived of the benefits of some of the most elementary rules of evidence and summarily sentenced to be hanged. In all this needless and unseemly haste there was no serious attempt to charge or to prove that he committed a recognised violation of the laws of war. He was not charged with personally participating in the acts of atrocity or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. It was simply alleged that he unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command.”
With regard to General Yamashita’s alleged failure to control the operations of the members of his command, Mr. Justice Murphy summarised the case for the prosecution in the following scathing and oft-quoted passage:
“The charges amount to this, ‘We, the victorious American forces, have done everything possible to destroy and disorganise your lines of communication, your effective control of your personnel, your ability to wage war. We have defeated and crushed your forces. And now we charge and condemn you for having been inefficient in maintaining control of your troops, during the period when we were so effectively besieging and eliminating your forces and blockading your ability to maintain effective control. Many terrible atrocities were committed by your disorganised troops. Because these atrocities were so wide spread we will not bother to charge or prove you committed, ordered, or condoned them. We will assume that they must have resulted from your inefficiency and negligence as a commander. In short, we charge you with inefficiency in controlling your troops. We will judge the discharge of your duties by the disorganisation which we ourselves created in large part. Our standards of judgment are whatever we wish to make them’;”
Mr. Justice Rutledge then read his dissenting judgment which confirmed and amplified the conclusions of Mr. Justice Murphy. He was particularly scathing regarding the complete disregard of the rules of evidence. “The tribunal has accepted,” he declared, “every conceivable kind of statement, rumour, report, at first, second, third, or further hand, and even one propaganda film as evidence.” He proceeded:
“A more complete abrogation of the customary rules could hardly have been made. So far as the admissibility and probative value of evidence was concerned, the directive (of General MacArthur) made the tribunal a law unto itself and it acted accordingly.”
Mr. Justice Rutledge concluded by declaring that so flagrant were the tribunal’s departures from justice that “it was without jurisdiction from the beginning, and if it acquired jurisdiction, then its power to proceed was lost in the course of what was done before and during the trial.”
In passing, regret may be expressed that no means were available to bring the doings of the so-called International Military Tribunal at Nuremberg to the attention of the Supreme Court of the United States. Of course the majority of the Court would have timidly declined to express any opinion as they had done in the case of General Yamashita, but we may be sure that Mr. Justice Murphy and Mr. Justice Rutledge would have delivered dissenting judgments exposing with devastating logic and clarity the absurdities and iniquities committed at that macabre farce.
Although two judges of the Supreme Court had condemned the conduct of Yamashita’s trial by the Manila tribunal in the most scathing terms and the other five judges had merely said that if the tribunal had erred it was the duty of the military authorities to rectify any wrong it had done, General MacArthur did nothing. On February 23rd, 1946, General Yamashita was hanged. Needless to say, he met his fate with stoical courage and dignity.
The execution of General Yamashita is an indelible blot on the otherwise stainless career of General Douglas MacArthur, the last of that long line of Western empire-builders and colonial administrators who created, extended and maintained that White supremacy in Eastern Asia which had begun with the great naval victory of the Portuguese Viceroy Dom Francisco d’Almeida at Cannanore on the west coast of India over the Arab and Indian fleets in 1506.
When MacArthur died at an advanced age in 1964 the Eastern Asia he had known, dominated by Western Colonialism, had become a faded and discredited memory, a subject for the quite unjustified shame for many members of the formerly dominant White Race and for the equally unjustified hatred of the formerly subject Coloured Races. It may be true that White Supremacy in East Asia was bound to disappear in the course of time. White Supremacy, however, depended less on actual military strength than on White morale. No man contributed more to the shattering of White morale than General Tomoyuki Yamashita by his epoch-making capture of Singapore.
THE TRIAL OF GENERAL RAMCKE
A brief outline of the trial of the famous leader of paratroops, General Bernard Ramcke, is included here because it illustrates so vividly the hardships and injustice inflicted on prisoners of war by the Moscow Declaration of the 30th October, 1943, by which, it will be remembered, the victorious Powers conferred on themselves the right, in defiance of the Geneva Convention, to swop prisoners of war with each other.
Secondly, it demonstrates, if this really requires any demonstration, that a prisoner of war on trial before a war-crimes tribunal had a negligible chance of being acquitted, however threadbare the case for the prosecution. In this war-crimes trial the absurdity of the charges against General Ramcke was obvious to everyone in court long before the case ended. Nevertheless the Tribunal decided to convict in accordance with the principle that a war-crimes trial ought to end with a conviction, although this particular tribunal upheld the credit of French justice by imposing a nominal penalty which resulted in the release of the prisoner after the elapse of only a few months.
This trial also confirms the view that war-crimes tribunals often adopted one of the principles on which trials before the Inquisition were conducted. A person charged with heresy before a court of the Holy Office who conclusively proved his complete innocence was indeed acquitted of heresy but was convicted of having incurred the suspicion of heresy for which a relatively mild punishment was imposed. War-crimes tribunals like the courts of the Holy Office could not believe that a prisoner brought before them could be completely guiltless of any offence.
This case cannot be regarded as a typical Routine War-crimes Trial, since the belated decision to put General Ramcke on trial was reached in order to serve a political purpose. By, for him, a fortunate chance, his name had been put at the end of the long list of prisoners of war in French custody awaiting trial for war crimes. Had his name been put at the beginning of this list his case would have been dealt with as a simple Routine War-crimes Trial and his life would no doubt have come to a violent end without any particular attention being attracted. But although the French tribunals and firing squads worked with untiring zeal, the year 1951 arrived and General Ramcke was still awaiting trial. By then wartime passions had considerably abated: many prisoners were being released without being put on trial. Probably this would have been his fate also but for a stroke of ill-fortune. The Stalin Myth had been exposed as a propaganda fiction; no longer was it possible even for the most stupid to believe the Communist dictator was a loyal ally after his subjugation of Czechoslovakia and his blockade of West Berlin. To defend Western Europe from the threatened invasion by the Red Army it had become necessary to win the goodwill of the German people and to start re-creating the German Army.
Naturally the prospect of having to deal with a re-armed Germany aroused widespread alarm. Nowhere was this alarm more strongly felt than in France. The French Communists were filled with indignation that the advance of the Red Army to the Atlantic Coast should be obstructed by German troops, and their loud protests were supported by all those in France who regarded Germany as the national enemy. It was decided to compel the rest of the world to understand the gravity of the peril by staging a trial of one of the surviving German prisoners of war in French captivity, so that at this trial the full story of all the cruelties committed during the German occupation of France could be retold and then broadcast to the world.
It happened that the only surviving German prisoner of war in French captivity whose name was at all widely known to the general public was General Ramcke. Not much in fact was known about him except that he had stoutly defended Brest from the Americans and no one knew what offences he was supposed to have committed. The Communist Press, quickly followed by the Left-wing Press, took up the question of his misdeeds with enthusiasm. Very soon all France was ringing with the crimes of “The Butcher of Brest”. The French Government acceded reluctantly to the popular demand. The papers relating to General Ramcke were hastily brought from some official pigeon hole where they had been collecting dust for years, charges were framed, and “The Butcher” was brought to a trial without a moment’s unavoidable delay in the court room of the Prison Cherche-Midi in Paris on the 19th March, 1951.
An outline of General Ramcke’s distinguished career must here be given briefly. Having served in the campaign in France, in 1941 he took a leading part in the conquest of Crete, the most spectacular and, from the losses incurred, the most ruinous exploit by paratroops of the Second World War. He next served as a leader of front-line troops in North Africa, Russia and Italy. He then returned to Germany to supervise the reorganisation of the 2nd Paratroop Division which had been decimated in the recent fighting in Russia. On the 12th June, 1944, he was ordered to take command of this Division which had been sent on ahead of him to France to reinforce the German forces there awaiting the long-expected Anglo-American invasion. He entered France on that date and proceeded to Brittany. On the 20th September he surrendered to the Americans at Brest. The dates are important because all General Ramcke’s offences were alleged to have been committed during this short period of three months, during the first part of which until the 31st July he was fully occupied organising the defence of the coast of Brittany and during the second part of which he was engaged in attempting to hold up the American forces after their break-through at Avranches.
Cut off in the Breton Peninsula from the main German forces retreating eastward towards the Rhine, General Ramcke maintained resistance in Brest for thirty-nine days. When at last he was forced to surrender he was treated with every courtesy and honour by the American commander, General Troy H. Middleton. He was first sent to a prisoner-of-war camp near Cherbourg; then transferred to a prisoner-of-war camp in England, and finally flown across the Atlantic to Washington, whence he was taken by train to the great prisoner-of-war camp at Fort Clinton, near Jackson, Mississippi.
Conditions in this camp seem to have been excellent until Germany’s unconditional surrender in May 1945, when a campaign was immediately started in the American Press in protest against the “coddling of prisoners, all of whom were undeniably guilty of what Lord Justice Lawrence was later to describe as the supreme international crime, namely of being on the losing side. In order to draw attention to the spiteful deprivations and restrictions imposed on the prisoners in response to this Press campaign, General Ramcke crawled beneath the barbed wire fence surrounding the camp, and posted a letter to army headquarters in Washington. He then returned to the camp. When, however, the camp authorities were ordered by headquarters to investigate General Ramcke’s complaints, his escape, of course, came to light and he was put under arrest for a breach of prison discipline.
This incident is important in the light of subsequent events. No doubt the knuckles of a number of prison officials were deservedly rapped and General Ramcke in this way made a number of vindictive enemies. In accordance with the Moscow Declaration to which the United States was a party, a prisoner of war held by one victorious Power had to be handed over to any other victorious Power which alleged he had committed a war-crime. Down to this time it had occurred to no one that General Ramcke was a war-criminal. It would obviously have been easy for a personal enemy to have conveyed a hint to one of the Allied commissions in Washington that a demand for the surrender of General Ramcke as a war-criminal would be favourably received. At all events, shortly after the above incident he was told that he was being sent back to Europe. Naturally he assumed that he was about to be released in accordance with the requirements of international law. To his surprise the ship stopped at Antwerp in order to put him and one of his comrades ashore. What followed is best described in his own words:
“Hardly had the ship made fast at Antwerp when we were informed by an American officer that we were to be handed over to the British. A British officer of police, a sergeant and six men, took us in charge. Their manners were brutal. With rough cuffs and pushes they fastened Kochy and I together with handcuffs and chains and thrust us with kicks (“mit Fusstritten”) into a waiting lorry. We were then driven through Antwerp, under the Scheldt by the celebrated Scheldt Tunnel, via Bruges, to P.O.W. Camp No. 2226 near Ostend.”38
This deplorable incident took place in March 1946. After spending some time in appalling sanitary conditions in the prison camp near Ostend, General Ramcke was taken for interrogation to the notorious “London District Cage” in Kensington Gardens, London. The British then decided that they had no complaints against him. They did not set him free, however, but sent him over to Paris where, on the 4th December, 1946, he was handed over to the French by whom he was taken in handcuffs and chains, first to the Prison Cherche-Midi, and then to the prison at Rennes in Brittany.
It is only possible to speculate as to the reason for this extraordinary procedure. General Ramcke was unquestionably what prison governors would classify as “a difficult prisoner”. He was not only a very brave man—it demands courage to drop with a parachute over enemy territory—but he was remarkably lacking in tact, as several anecdotes which he tells in his autobiography show. He was well aware of the rights given him as a prisoner of war by international law and never hesitated to inform his captors when these rights were being infringed. They on their part took the view that the only proper relationship between a prisoner of war guilty of the supreme international crime of being on the losing side was humility and deference on his part and generous magnanimity on theirs. General Ramcke was totally unable to fill the role which his captors, whether American, British or French, expected of him. It seems likely, therefore, that he offended his British captors in the London District Cage in exactly the same way as he had offended his captors in Fort Clinton, Mississippi. Probably personal ill-will towards him accounts for his being handed over by the British to the French in December 1946.
For the next four years General Ramcke was kept in close confinement in the prison at Rennes. The sanitary arrangements of the prison were appalling and discipline was maintained by such penalties as solitary confinement in chains. It was not until 1951 that any charge was brought against him, by which time, as mentioned above, the political situation had been transformed by the outbreak of the “Cold War” between the United States and the Soviet Union. The French Communists and their leftist allies then decided to re-awaken anti-German feeling by staging a trial of some well-known German prisoner of war. The “Hero of Brest” was the only prisoner still in French hands who fulfilled the necessary requirements. Labelled “The Butcher of Brest” in the French Press, General Ramcke was served with a hastily prepared indictment and for the first time learned what offences he was supposed to have committed. On the 19th March, 1951, over six and a half years after his surrender at Brest on the 20th September, 1944, he was brought before a French military tribunal in the court house of the Prison Cherche-Midi in Paris.
The trial of General Ramcke is only of interest if regarded as an example of the fate to which German prisoners of war were subjected when tried for war-crimes before French military tribunals. It is the only one of these trials which was fully reported at the time in the French Press—it even received some mention in the British Press—and in addition it has been described in detail by General Ramcke himself in his autobiography. The lawyers entrusted with framing the indictment had a difficult task to perform since it was only possible to charge General Ramcke with offences committed between the 12th June, 1944, the date he entered France, and the following 20th September when he surrendered in Brest. Naturally a makeshift document was the result since no one knew why the British had handed him over to French custody. He had only remained in French custody because, long hidden behind the walls of the prison at Rennes, he had become gradually forgotten.
As a makeweight to the main complaint against him, his obstinate resistance in Brest, his accusers brought against him the stock charge brought in most war-crimes trials that before the siege commenced men under his command dealt severely with partisan activity. Hurried investigation disclosed that after General Ramcke had taken command of his division in June 1944 three Breton peasants, all of them members of La Resistance, had been arrested by a patrol of men of a unit of his division for being in possession of weapons, and of being concerned in the murder of three German ambulance-men, whose bodies, horribly mutilated, had been found nearby. They were subsequently executed by the Security Police. General Ramcke declared that no such incident had ever been reported to him, but if the facts were as stated by the prosecution he would heartily have approved of the execution of the murderers. The charge against him in fact amounted to the charge on which General Yamashita had been convicted at Manila, of failing to control the troops under his command. The prosecution did not press the charge, but went on to deal with General Ramcke’s alleged offences during the thirty-nine days during which the siege of Brest lasted.
In a nutshell General Ramcke was charged with causing the death of French citizens and damage to civilian property during the siege.
Unfortunately for the prosecution but most fortunately for the inhabitants of Brest, before the American attack began General Ramcke proposed a truce so that the population of the fortress could be evacuated. The humane and chivalrous General Troy H. Middleton commanding the besieging army readily agreed, and the entire population was allowed to leave Brest with the exception of certain units of Partisans who remained behind in order to harass the Germans from the rear.
The prosecution called as a witness a Partisan leader named Le Roy who testified that he himself had prudently left Brest before the siege began, but he had left behind four of his men in a secret “hide-out”. After the siege no trace of this “hide-out” or of the men he had left in it could be found. It was open therefore to the court to adopt the assumption that it had been discovered and burnt by the Germans who had shot the Partisans found lurking therein.
This indeed might have happened: probably the men were dead and certainly the “hide-out” had ceased to exist. But no evidence of any kind was produced that General Ramcke’s troops had been in any way concerned. The siege of Brest was the first example of what may be termed a siege by obliteration. The Americans not only bombarded the besieged city with numerous guns of every calibre but they continuously bombed it from the air. Between August 7th and September 20th there were no fewer than thirty-nine major air attacks by heavy bombers on Brest: in the raid on September 12th no fewer than six hundred bombers took part. Brest was systematically destroyed, district by district; as in the battle for the Monte Cassino in the spring of that year, the defenders found excellent cover in the ruins and long resisted successfully the American infantry attacking behind a screen of phosphoros bombs and liquid fire. At the end of the siege Brest did not consist of a collection of heavily damaged buildings; it consisted of masses of brickwork and masonry which had been repeatedly churned over by shells and bombs. It was not only impossible to distinguish one building from another but even to guess where the main streets had been. In his memoirs General Ramcke records, “Brest looked like a crater on the moon.”
Forming part of this wilderness of debris was no doubt the Partisan “hide-out”; it might indeed have been discovered and destroyed by the garrison, but it was obviously far more likely to have been obliterated by the hurricane of shells and bombs which for the thirty-nine days rained down on Brest.
The prosecution added two supplementary charges. First, that the troops under General Ramcke’s command had themselves set fire to Brest during the siege; secondly, they had indulged in plundering the city while the assault was in progress.
Why troops should set fire to a city in which they themselves were, the prosecution did not explain. Even more absurd was the charge of plundering, since every member of the garrison knew that surrender was inevitable in either a few days or a few weeks when the survivors would become prisoners of war and of course any loot found on them would be taken from them. In these circumstances a regiment composed of professional burglars might safely be depended on to behave themselves if surrounded in Hatton Garden!
The prosecution finally collapsed when the defence read two affidavits, the one sworn by General Troy H. Middleton himself and the other by his second in command, General Robinson.
General Middleton began by disposing of the charge of plundering by testifying that no articles of plunder had been reported to him as having been found on the captured members of the garrison when they were searched after the surrender.
General Middleton was then asked: “What impression did you form of the methods of conducting war of the German soldiers in Brest and particularly of the 2nd Paratroop Division?” General Middleton replied: “During my entire professional service in two world wars I have never come across better fighting soldiers than the German troops in Brest. This applies particularly to the men of the 2nd Paratroop Division. They impressed me as well disciplined, well trained and remarkably obedient to orders.”
In reply to the question: “Have you any knowledge of brutal acts or criminal behaviour on the part of the garrison of Brest?” General Middleton replied: “No acts of brutality or of unlawful methods of warfare were reported to me by my troops. Those of our men who became prisoners of the German troops in Brest were as well treated as one can expect in war. I consider that the measures taken by General Ramcke for the prisoners in his hands were better than I have ever before observed in warfare.”
Finally General Middleton was asked: “Have you any observations to make concerning General Ramcke?” To this question he replied: “Of the many German commanders I have met in war and of the round dozen German generals who fell into the hands of my troops, I rank General Ramcke as the most outstanding soldier. I consider that he conducted the defence of Brest in accordance with the best soldierly traditions.”
The evidence of General Walter M. Robinson, also taken on commission, was then read to the Court. It confirmed General Middleton’s evidence. In particular General Robinson testified that when the American troops entered Brest, there were numerous fires blazing caused by the phosphoros shells used in the bombardment which, in his opinion, were quite beyond the power of the garrison to master. The Court heard this unwelcome evidence in resentful silence.
This unexpected evidence put the military tribunal trying General Ramcke in an extremely difficult position. Almost the entire French Press had worked itself up into a state of hysteria over the crimes of the “Butcher of Brest”. To acquit the accused was therefore impossible. But for the evidence of General Middleton the usual course adopted by war-crimes tribunals might have been adopted, that is to say, the accused might have been convicted and sentenced to death, with no other result than that tension would have been caused between France and Germany, an outcome much desired by Communist and Leftist opinion in France as it could have been used as an argument against the proposed re-arming of Germany.
To hang General Ramcke however in the face of the evidence in his favour given by General Middleton would be resented as an affront in American military circles. Great pride also was felt by the general public in the United States in the story of the capture of Brest, not only as an example of American prowess but of American chivalry; Americans could hardly be expected to welcome the addition of a footnote to that story recording that the gallant defender of Brest was done to death by his French enemies seven years after his surrender to the Americans. But, most important of all, the judicial murder of General Ramcke would have been regarded with the strongest disapproval by the American Government, then striving desperately to enlist German public opinion to the side of the Western Powers. Ever since the end of the War, France had depended on American financial and economic support. If an “agonizing re-appraisal” took place in Washington and the flow of dollars ceased, where could France turn for benevolent support? Would not the loss of the American pension be a high price to pay for the death of one more German general?
There is no reason to think that the French military tribunal trying General Ramcke was any more perceptive of the grave political issues at stake than the average war-crimes tribunal. Fortunately, the tribunal had the guidance of a civil judge, Monsieur Ménéquaux, upon whom, on this occasion at least, the wisdom of Solomon clearly descended. He succeeded in persuading his military colleagues to disregard entirely the evidence given at the trial and to bring in a general verdict of guilty, thus satisfying French public opinion, and then to sentence General Ramcke to five years’ imprisonment. As the General had already spent only three months short of five years in rigorous confinement awaiting trial, this sentence entitled the accused to release at the expiration of three months.
Except for the French Communists and their Leftist allies whose stunt had miscarried, and General Ramcke himself, who strongly resented being labelled a criminal for crimes which the court carefully refrained froth specifying, this celebrated war-crimes trial ended to the satisfaction of everyone concerned. On the 23rd June, 1951, General Ramcke was released from the Cherche-Midi Prison and was immediately driven by car to the German frontier. His long ordeal which had begun on the quay at Antwerp in March 1946 was over.
THE TRIAL OF FIELD MARSHAL VON MANSTEIN
This chapter dealing with the final development of the “advance to barbarism”, the introduction of war-crimes trials at which the victors tried their own charges against the vanquished, may be fittingly concluded by an examination of what was in many respects the most noteworthy of all the war-crimes trials which followed the Second World War.
This trial was noteworthy for three reasons. Firstly, because the accused, Field Marshal von Manstein, was without question one of the greatest of the military leaders who took part in that struggle; secondly, because the proceedings were not only fully reported in the newspapers at the time, but were afterwards described in detail in a book written by the leading English counsel for the defence, a book which is entitled to rank with Mr. Frank Reel’s The Trial of General Yamashita; and thirdly, because the fundamental points at issue were fought out by the prosecution and the defence on comparatively equal terms.
It will be remembered that by the time the Nuremberg Trials had at last reached the conclusion preordained at the Yalta Conference, the British public had become utterly weary of the subject of the disposal of enemy prisoners of war. An Iron Curtain of Discreet Silence was then drawn over the question. Interest was temporarily revived in 1947 by the sentencing of Field Marshal Kesselring to death, but once his reprieve had been arranged behind the scenes, the British public soon forgot that war-crimes trials were still going on all over Europe. Great care was taken to prevent the British public being reminded of this fact; discussion in print concerning the legality and ethics of these so-called trials was made the subject of a strict taboo. No one, and particularly those who had taken part in them, wanted to hear war-crimes trials mentioned again.
It appears that the British authorities innocently mistook the indifference of the British public to what was taking place for wholehearted approval. In the summer of 1948, it was casually announced that three famous generals, Field Marshal Gerd von Runstedt, Field Marshal Fritz Erich von Manstein, and Colonel-General Strauss, who had spent the previous three years in honourable captivity in England as prisoners of war, were to be sent back to Germany in order to stand their trial as war-criminals.
A storm of protests at once broke forth, far exceeding the outcry which had arisen over the condemnation of Field Marshal Kesselring. What was the reason, it was asked, for bringing these belated charges? “If these men were guilty of war-crimes,” wrote Professor Gilbert Murray to The Times, “they should have been promptly accused and punished. Nothing can justify keeping these men in prison for three years without a trial.”
The Government had no reply to make to this question and the controversy in the columns of the Press and the debates in Parliament were entirely one-sided. In vain the Lord Chancellor, Lord Jowitt, reiterated that he was satisfied in the depths of his heart that the prisoners had a case to answer and that the trials really should take place. The storm continued. At last, on May 5, 1949, Lord Jowitt announced that the charges against Field Marshal von Runstedt and Colonel-General Strauss were to be dropped. But the case against Field Marshal von Manstein must, he insisted, proceed. “The whole matter for the last six months has been a source of great worry to me,” Lord Jowitt declared plaintively.
The solution decided on to put an end to Lord Jowitt’s six months of worry can only be regarded as most unfortunate from any point of view. Of the three distinguished soldiers threatened with prosecution as war-criminals, only Field Marshal von Runstedt, the hero of the famous winter-battle of the Ardennes, at the end of 1944, was generally known to the British public. The names of his two comrades, if known at all, were unassociated with any particular event. The reason officially given for the decision not to put him and Colonel-General Strauss on trial was their advanced years and declining health. An excellent reason in both cases, no doubt. But it was a reason that applied equally well in the case of Field Marshal von Manstein who was also elderly and in bad health; he had always been delicate and was now threatened by blindness. The age of all three men was in the neighbourhood of seventy.
So unconvincing an official explanation inevitably invited speculation as to the true reason. Inquiry showed that, although Manstein had spent the last four years of the war on the Eastern Front, he had taken a leading part in the Campaign of France, in 1940, and to his brilliant strategy was generally ascribed the great breakthrough near Sedan on May 13th, which led in a few weeks to the withdrawal of the B.E.F. from Dunkirk and the capitulation of France at Compiègne. In his book, The Other Side of the Hill, Captain Liddell Hart writes:
“The ablest of all the German Generals was probably Field Marshal von Manstein. That was the verdict of most of those with whom I discussed the war, from Runstedt downwards. He had a superb strategic sense and a great understanding of mechanized warfare.… From him came the brain-wave that produced the defeat of France—the idea of a tank-thrust through the Ardennes.”39
A triumph so swift, so complete and, above all, so unexpected must inevitably have produced widespread psychological reactions. When, on May 10th, 1940, two million German troops began the long-awaited attack on the Western Front defended by some three and a quarter million men, confidence reigned supreme that this attack would be victoriously repulsed. No other result indeed seemed possible. On the one side were hurriedly trained German conscripts, many of whom were believed to hope for defeat as the only means of bringing about the downfall of Hitler’s regime which they were supposed to hate. Their organisation had been hastily improvised; owing to shortage of raw material their equipment was of poor quality, and they were outnumbered by three to two. On the other side were the famous Maginot Line, constructed at such vast cost and considered by the experts as impregnable; the French Army the same instrument which Marshal Foch had led to victory twenty years before, re-equipped and reorganised in accordance with the lessons of the 1914–1918 War; and the B.E.F. made up of 350,000 long-service soldiers, the best trained and equipped army that Great Britain had ever despatched to fight in a European war. Under such circumstances, it is not surprising that few paid attention to the poet Rudyard Kipling’s warning against indulging in “frantic boast and foolish word”. Thus, on April 5th, 1940, in the apparent security of British G.H.Q., General Sir Edmund Ironside, Chief of the Imperial General Staff, “with the full consent of Mr. Oliver Stanley, the War Minister” gave the following “frank interview on the war,” proudly described as being “one of the most outspoken statements ever made by a British military leader in wartime.” As reported in the Daily Mail the following day, the gallant general said:
“Hitler has ‘missed the bus’ in not attacking us during the last seven months. We have turned the corner. Having seen the British Army over in France, what we have got in this country, and also the French army, I feel that everything is going on well.
The spirit of the young men is something that has to be seen to be believed. As an actual fact there is no officer in the German Army opposed to us who served in the last war above the rank of captain. We have generals and colonels galore, and so have the French Army—men still in the pink of condition—who commanded in the last war and know what it means.
I know most of the German commanders personally. I should say that most of these men are now feeling very exercised about what they should do if the order was given to ‘go’.
In this country today there is no doubt about the reasons for which we are fighting. There is a great silence in Germany. German propaganda is full of lies and this must be bad for morale.
It seems to me that one reason why the German troops are kept in position at the front is that they can be much better controlled there.”40
Within less than two months of this speech—a verbose and authentic variation of Kaiser Wilhelm’s entirely fictional reference, in 1914, to Sir John French’s “contemptible little army”—the B.E.F. was embarking at Dunkirk in order to return to Britain. It was leaving behind it all its guns to the number of 2,300; 120,000 vehicles, including all its tanks, armoured cars and lorries; and all its equipment, ammunition and stores. That the bulk of the troops succeeded in escaping at all was due entirely to Hitler’s delusion that the dark menace of Asia overshadowing Europe would induce Great Britain to come to an understanding with Germany in joint self-protection. Few members of the B.E.F. returned to England with more than the clothes which they were wearing.
Anyone but a British Foreign Office official would have foreseen that the decision to single out as a war-criminal the general to whom, it is agreed, was due the credit for this amazing triumph was bound to give rise to regrettable misconstruction. In this speech, General Ironside was only expressing views universally held at the time in the highest military and political circles. We are assured he spoke “with the full consent of Mr. Oliver Stanley, the War Minister.” Sudden realisation of the truth must have come as a terrific shock. Resentment at the time must have been widespread in political circles. Inevitably, the trial at Hamburg, in 1949, of Field Marshal von Manstein came to be widely regarded as retribution for his achievements in 1940 which have secured for him a sure place in world history.
It is quite certain that the true explanation of the persistence with which the demand for the trial of Field Marshal von Manstein was pressed is that, if he had been released, it might have been difficult to resist a demand by the Soviet Union for his surrender as a war criminal, in view of the Moscow Declaration of October 1943 and the reciprocal undertakings exchanged in 1945. In accordance with these undertakings, a number of prisoners of war had, in fact, been handed over to the tender mercies of the Poles, Greeks and Serbs. But, in default of a reasonable explanation or, better, of an explanation which could be frankly stated, it was inevitable that untrue and unjust explanations should have been suggested in foreign quarters critical of Great Britain.
Neither the danger of misrepresentation nor any other objection succeeded in shaking for an instant the iron determination of the British Government to proceed unflinchingly with this belated war-crimes trial, an iron determination all the more remarkable since determination of any kind had been conspicuously absent from British foreign policy in regard to every other matter since the War. Hope of appeasing Russian hostility having long since been abandoned, there was no object or advantage to be gained by the trial; public opinion in Great Britain was quite indifferent; a small but influential minority was extremely outspoken in opposition; and those who desired to hear that another German general had been hanged considered it the best policy to remain silent in the hope that the outcry would die down if left unopposed. As a result, the debates in Parliament on the matter were entirely one-sided, but the order to the army authorities to proceed with the trial remained unrevoked.
But, although the opposition aroused by the decision to put Field Marshal von Manstein on trial as a war-criminal failed utterly to shake the resolve of the British Government, it led to other important results. It was strongly urged that, if this war-crimes trial must take place, it should at least be conducted with fairness. The Field Marshal’s trial would take place before an English military court and, therefore, he ought to be represented by English counsel. Possibly, because the effects of such an innovation were not at first realised, this proposal was not openly opposed. Probably, reliance was placed on the fact that, the Field Marshal was practically penniless, since all his property being situated in the eastern provinces of Germany annexed by Poland, had been summarily confiscated. In order to deprive him of legal assistance therefore, it only appeared necessary for the British authorities to refuse him adequate funds to pay for his defence. The Bar Council did not even trouble to repeat the ruling, which it had given before the Nuremberg war-crimes trials began that it was “undesirable” that a member of the English Bar should appear for the defence. It remained, therefore, possible to contend that the accused was free to employ any lawyer, English or German, whom he pleased. The fact that he had been robbed of all his money by the allies of Great Britain and, consequently, could not pay for legal aid was plainly no concern of the British Government.
It had, however, been wrongly assumed that the Field Marshal’s sympathisers would be content with protesting. The necessary funds to pay for his defence, amounting to some £2,000, were quickly raised by public subscription. The British authorities would, no doubt, have foiled this move by prohibiting the export of British currency for such a purpose but for the fact that one of the subscribers to the fund was no other than Mr. Winston Churchill. After six months worry, Lord Jowitt was in no mood to bring down on himself the formidable wrath of Mr. Churchill. The opposition ignominiously collapsed. Mr. R. T. Paget, K.C., M.P., generously offered his services without a fee.
Field Marshal von Manstein was formally charged on January 1st, 1949, the farce of confiscating his uniform having been solemnly enacted whereby he was deemed to have become a civilian. The trial commenced in Hamburg on August 22, 1949, and dragged on until December 19 following.
It would be outside the scope of this book to examine the details of the trial of Field Marshal von Manstein. The only real issue in the case is, however, so simple that it can be explained in a few words. The Field Marshal was in command of the army group on the southern wing of the Eastern Front. Facing him were the Russian armies with a numerical superiority of seldom less than four to one. Behind his lines raged a ceaseless and furious struggle between the German security forces and the communist commandos in which the unfortunate civilian population, willingly or unwillingly, joined. This struggle had commenced on the first day that the German armies crossed the Russian frontier when Stalin announced that the war “was not only a war between two armies but at the same time a war of the entire Soviet people against the Fascist German troops”. According to Russian official reports, in the Crimea alone, 18,910 German soldiers were killed by the partisan bands, 64 troop trains were blown up, and 1,621 lorries destroyed. Prisoners and wounded were murdered, generally after mutilation; horrifying deeds took place whenever a German hospital was seized by the guerillas.
As has been previously repeatedly stressed, the essential characteristic of civilized warfare is the drawing of a distinction between the enemy combatant forces and the enemy civilian population. But, in the fighting on the Eastern Front, no such distinction could be drawn; any Russian civilian who maintained his civilian status was liable to be executed by his own countrymen as a traitor. The task of combatting this campaign of terror behind the German lines fell mainly on units of the S.D., the intelligence branch of the Geheime Staatspolizei, otherwise known as the Gestapo. These units operated quite independently of the army. They were not subject to military discipline. Their orders came direct from Hitler via Heinrich Himmler, the chief of the Schutzstaffel, (the S.S.), the Gestapo and the S.D. There is no question that their orders were to combat terror by terror; there is no reason to think that they did not do their utmost to obey their orders.
In a nutshell, the charge against the Field Marshal was that he knew or should have known what was taking place. There is no question that horrible atrocities were committed by both sides in the struggle. Under the ruling laid down in the London Agreement the atrocities committed by the German security forces counted as “war-crimes”, since they were committed “in the interest of the Axis countries”. On the other hand, the atrocities committed by the partisans were not “war-crimes”, since the perpetrators ultimately found themselves on the winning side. The Communist atrocities, therefore, were not the concern of the Field Marshal since they were not technically “war-crimes”, but he should have been concerned with the atrocities of the German security forces, since these were “war-crimes” committed by the ultimately losing side in an area of which he was in military command although, admittedly, he had no authority or power to prevent them. It was contended, further, that the Field Marshal should have been able to foresee the retrospective law which, some three years later, the victors would become minded to lay down and he should, therefore, have complied strictly with its requirements.
Even since war-crimes trials began in 1945 the British legal Press had been publishing from time to time letters enquiring what exactly was the legal principle or doctrine under which British officers stationed in Germany had acquired the right to sit in judgment on German subjects for offences which they were alleged to have committed when they were subject to the law of their own country. It is a remarkable fact that none of the learned contributors to the legal Press ever wrote supplying the answer to the question, whence these military courts acquired their authority. Yet the answer, first brought clearly to light during the Manstein Trial in 1949, was in fact very simple. At this trial the general public learned that the British officers entrusted with the duty of adjudicating on the charges brought against the Field Marshal for acts committed by him during the War were empowered by a Royal Warrant dated June 18th, 1945, which directed that prisoners of war in British hands charged with war crimes, defined as “violations of the laws and usages of war,” should be tried by British military courts.
For four years, every war-crimes trial before a British military court had begun with a formal challenge of the jurisdiction of the court which the prosecution immediately brushed aside by a brief reference to the terms of the Royal Warrant. Rarely, it seems, was the point seriously argued. The lawyers for the defence were foreigners, themselves liable to be sent to a concentration camp if they displayed inconvenient zeal, and the challenge was made by them pro forma and generally argued through an interpreter or in halting English. Because, in every case, the trials proceeded, the British public assumed this challenge to the jurisdiction had been adequately refuted.
How baseless was this assumption only became apparent, at least to the British public, at the trial of Field Marshal von Manstein. On the first day of the trial, Mr. Paget challenged the jurisdiction of the court to sit in judgment on his client. The accused, he pointed out, was a prisoner of war. A state of war still existed between Great Britain and Germany. Prisoner of war status is the right of every prisoner taken in war; it does not depend in any way upon the discretion of the captor. The Geneva Convention, to which of course Great Britain and all civilized states were parties, reaffirmed and laid down the long-established principle that a state detaining prisoners of war must deal with them in accordance with its own laws and regulations in respect of its own armed forces. Among the rights of a prisoner of war was the right to a fair trial. A fair trial is what a captor himself considers a fair trial for his own personnel. The prosecution was relying on the terms of the Royal Warrant of June 18th, 1945. But this document deprived the accused of many important rights which he would have enjoyed under British military law. In particular, he was deprived of the right to be tried by officers of rank equal to his own; the right to demand a precise statement of the offences with which he was charged; and the right to claim the protection of the rules of evidence, that is to say, he was not to be convicted on hearsay evidence. Finally, Mr. Paget appealed to the court not to be overawed by the fact that the document of June 18th, 1945, was labelled a Royal Warrant. In 1916, the House of Lords, in the famous Zamora case, had held that the seizure of a ship under a Royal Warrant was illegal because the seizure in that case was contrary to international law. The Royal Warrant was nothing but a government order. Responsibility for its terms rested on the government; as a constitutional monarch the King signed Royal Warrants on the advice of his Ministers.
Exceptional interest attaches to the reply of Sir Arthur Comyns Carr, K.C., leading Counsel for the prosecution. He began by declaring that he had listened to Mr. Paget’s submission “with considerable astonishment”. It went, he declared, to the root of this trial, a circumstance which he seemed to think was in itself an objection against it. Rather naively, he pointed out that it had become the practice of war-crimes tribunals to reject this submission; it had, in fact, always been rejected. He paid a tribute to the majority judgment of the American Supreme Court in the Yamashita case which sent that gallant soldier to his death. He argued that the right to a fair trial given to a prisoner of war by the Geneva Convention only applied to offences committed by the accused after he became a prisoner of war. In any event, the Field Marshal was no longer a prisoner of war since the British Government had seen fit to discharge him from the German army. Perhaps it might seem that much time and trouble had been wasted at Geneva in defining the rights and privileges of a prisoner of war if a prisoner only remained a prisoner of war at the discretion of his captors. The fact remained that if his captors decided to make a prisoner of war a civilian, they could then do as they pleased with him. Sir Arthur said that he had listened with regret to a King’s Counsel speaking slightingly of a Royal Warrant. This document has not been designed to prevent the accused from having a fair trial. It was perfectly right and proper that hearsay evidence should be admissible before a war-crimes trial tribunal because war-crimes are “of such magnitude that it would be impossible to apply to the proof of them the rules by which we are bound in a small case.”
It would be interesting to know what impression, if any, the latter argument made on the members of the Court. Even to Sir Arthur himself it must have sounded weak. If sound, it would logically follow “that evidence that would justify a conviction for murder might be insufficient to support a conviction for riding a bicycle at night without a lamp.41
Mr. Paget admits, however, that he had little hope that the court would uphold his submission. It was, of course, rejected. To have decided otherwise would have been a reflection on every war-crimes tribunal which had adjudicated on the point during the previous four years. The court would have had no option but to dissolve itself; the prisoner would have left the dock and gone home; and the gallant officers assembled on the Bench would have returned to their military duties. Was it to reach so rapid and lame a conclusion that Lord Chancellor Jowitt had endured six months’ worry? It would have needed the combined strength of will of a tribunal composed of supermen to have reached so startling a conclusion. And the Tribunal before which the Field Marshal had been brought was not composed of supermen. It was composed of one Lieutenant-General, one Major-General, two brigadiers and three Colonels.
The composition of the court which decided that it possessed jurisdiction to try him was one of the three main disabilities imposed on the Field Marshal by the terms of the Royal Warrant. Under international law, as confirmed and laid down by the Geneva Convention, he was entitled to be tried by court-martial in accordance with British military law by officers of his own rank. All the officers appointed to try him under the Royal Warrant were of very inferior rank. This was a serious disability, since not one of them had held an independent command of an army or group of armies and, therefore, had had no experience of the difficulties with which he had been compelled to cope.
The second disability deliberately inflicted on the accused was that, in accordance with the Royal Warrant, he was denied any precise statement of the charges he would face when the trial began. The result is described by Mr. Paget as follows:
“When it came to the trial, the charges against von Manstein were 17 in number. They were summarized by a reporter who said that the prosecution had collected everything that occurred in the Eastern war and thrown it at von Manstein’s head.
What the prosecution appeared to have done was to list every incident which might contravene any law or usage of war and which had occurred in any area in which von Manstein had served. As this covered huge areas over a period of 4½ years of particularly ruthless war, the prosecution were able to list some hundreds of incidents. These incidents, or particulars as they were called, were then divided into 17 groups, and before each group some order or orders generally issued by the high command were referred to, and the allegation made that the particulars were the result of the orders. Then in front of the orders appeared a statement in varied terms, but to the general effect that von Manstein was responsible for the results of the orders, and finally, at the commencement of each charge appeared the words ‘contrary to the laws and usages of war’.
What von Manstein was actually supposed to have done and what law or customs were alleged to have been contravened was left quite vague. The result was an enormous document which took well over two hours to read in court.
We asked for detailed explanations of what the charges meant, and submitted to the prosecution some 20 foolscap pages of questions. These questions the prosecution refused to answer. When we objected to the charges in court, the reply of the prosecution was that at Nuremberg and Tokyo the charges had been vaguer still! The real answer was that the Royal Warrant gave to the accused no right to know what charges were brought against him, and we had to be content with whatever the prosecution gave us.”42
The third disability was even more grave. By the express terms of the Royal Warrant, the accused was deprived of the protection of the rules of evidence. At a more famous and equally unsatisfactory trial, two thousand years ago, the high priest, Caiaphas, was in a position to exclaim, “Answerest thou nothing? What is it which these witnesses witness against thee?” But, apart from one witness so unsatisfactory that his evidence was withdrawn by the prosecution with the consent of the court, not a single witness testified anything against Field Marshal von Manstein. So far as the prosecution was concerned, the court house need not have been provided with a witness box. Reliance was placed entirely upon some 800 documents which took twenty days to read to the court. They were accepted en bloc by the court at their face value without proof of authenticity, authorship, or issue.
The defence strove vainly to insist that, when oral evidence was readily available to support a charge, an affidavit should not be accepted. In particular, Comyns Carr blandly produced three statements incriminating the Field Marshal, purporting to have been made by three S.S. officers who had been sentenced to death by the American authorities. These three men were still alive, but the American authorities refused to allow them on any account to go into the witness box to give sworn evidence in support of their alleged statements. Mr. Comyns Carr professed indignation at the suggestion that the refusal of the American authorities was due to fear that the condemned men might disclose what means had been employed to induce them to sign these statements, or that they might seize the opportunity to describe publicly the treatment which they, themselves, had received from their American captors.
There could be no dispute as to the methods commonly employed by the American authorities to obtain confessions, since a report of a special commission appointed by the Secretary of the U.S. Army, Mr. Kenneth C. Royall, had just been published, which described and denounced these methods. From this report, it appeared that, apart from unrestricted physical violence—most of the German victims of the Malmedy war-crimes trials at Dachau were found to be rendered impotent from blows or kicks—the commission found that confessions had frequently been obtained by staging mock-trials. This procedure was adopted in cases where there was no evidence at all against the prisoner, so that even a military tribunal might hesitate to convict. Such an unsatisfactory state of affairs was remedied by bringing the prisoner before a court composed of investigators dressed as judges, who pretended to sentence him to death. He was then informed that, if he would confess, he would be reprieved. If he then signed the confession placed before him, he was immediately brought before the real military tribunal authorised to try his case which, relying on his confession, would sentence him to death. The commission reported that this trick had been successful in many cases.
Nevertheless Comyns Carr argued that the court might safely accept the statements of the S.S. officers and their presence in the witness box was quite unnecessary. Readers of Charles Dickens will remember that at the trial of Bardell v. Pickwick, Sam Weller was told by the judge that what the soldier said was not evidence. At Hamburg, it was maintained that although what the soldier said might not be evidence, what the S.S. man said was evidence which could be accepted without hesitation. The fact was apparently overlooked that Lord Jowitt, in his memorable speech on May 4th, 1949, had given the House of Lords a solemn assurance that the trial of the Field Marshal “would be conducted in accordance with our great traditions.” For hundreds of years it has been a tradition of English criminal law that hearsay evidence is inadmissible. It is unthinkable that, when he gave this assurance, the Lord Chancellor did not know what were “our great traditions.” We are bound to accept the alternative assumption that he was unfamiliar with the terms of the Royal Warrant under the provisions of which the Field Marshal’s trial would take place.
It is a relief to turn from such speculations in order to justify the claim made above that the trial of Field Marshal von Manstein must be regarded as a model war-crimes trial. During the four years which had passed since the introduction of war-crimes trials, several noteworthy reforms had been effected. For example, the accused was no longer referred to in the Press as a war-criminal even before the charges were read, as had previously been the custom, and he was no longer subjected to flagrant bad manners by the court. Although, in the indictment, he was simply described as Erich von Manstein, this was treated throughout merely as a convenient legal fiction in pursuance of the principle laid down at Nuremberg that the rights of a prisoner of war are lost if, somehow, he is deprived of his rank by his captors. Throughout the trial, Field Marshal von Manstein was treated with the respect and consideration due to his rank and brilliant military achievements, When he entered the witness box, the members of the Court quickly forgot that they were supposed to by trying a war-criminal and settled down to hear, understand and profit by a five-hour lecture on strategy which they were privileged to receive from one of the greatest soldiers of his generation. No doubt, at the back of their minds was the thought that, one day, they themselves might be called upon to cope with similar difficulties in a campaign against the same foe with whom “this benign, white-haired, half-blind old man had fought.” To quote the correspondent of the Daily Mail, when Manstein entered the witness box, “the court room was immediately changed into a lecture hall of a staff college. Leaning forward to catch every word, the red-tabbed British officers heard him give a five-hour lecture on military strategy and full details of his Russian campaigns without reference to a note.”43 If, as is to be hoped, these British staff officers benefited by the instruction given to them, this part of the trial, at any rate, was not an entire waste of time.
There is no interest whatever in the last phase of the average war-crimes trial. All accounts agree that, after weeks and perhaps months of indescribable tedium, the only emotion felt by anyone at the end, including probably the accused, is profound relief. Some have compared a war-crimes trial with a bull-fight. Others consider the comparison unfair, to which subject of the comparison there is a difference of opinion. But the Manstein trial was not a typical war-crimes trial. Mr. Paget’s final speech for the defence made a deep impression on the Court. It ended with the solemn warning, “It is not within your power to injure the reputation of Manstein, you can but injure your own.”
Mr. Paget admits that, at the conclusion of the case, he had become confident of an acquittal. One of the prosecuting team was heard offering odds of two to one on a clear acquittal but found no takers. In the usual war-crimes trial, the odds in favour of a conviction could only be expressed by some astronomical figure. The Manstein trial was a model war-crimes trial.
The reply of the prosecution was long but, compared with the opening, moderate and subdued. The most effective argument employed was the undeniable assertion that “acquittal of von Manstein would make nonsense of all other trials.”44
Every possible allowance should be made for the difficulties which faced the members of the tribunal. They were officers of very inferior rank to the accused, and not one of them had had any experience with primary warfare. They possessed no personal knowledge of the difficulties of a commander-in-chief engaged in a campaign against a powerful enemy, in numbers greatly superior to his own, who finds his long lines of communication attacked by the civilian population. They were in the position of a committee of the boxing board of control called upon to enquire whether an all-in wrestling champion had infringed certain of the Queensbury Rules. Their only desire was to do their duty. The charges were based on a haphazard collection of some 800 disconnected documents in a foreign language which it had. taken twenty days to read. What facts could be deduced from this wild chaos? Mr. Paget’s arguments appeared conclusive and were supported by common sense. But Mr. Comyns Carr could point to the undoubted fact that every war-crimes trial tribunal, British and foreign, had, to date, accepted his contentions without hesitation. The complete lack of any admissible evidence such as would justify a conviction for petty larceny would appear to have made their task easy. But could it be believed that the Lord Chancellor would have worried for six months about a case which could only end in an outright acquittal? Concerning the law governing the subject, the only thing certain about it seemed to be that the authorities contradicted each other on every point at issue.
For guidance on the difficult points of international law which were bound to arise during the trial, the tribunal had been provided with the judge of the Surrey County Court acting as Judge Advocate General. The task of this functionary, Judge Collingwood, could hardly have been more onerous. With no staff to assist him, he had to marshal some 800 documents and to prepare a summing-up which would cover all the points at issue raised in the seventeen charges. It is agreed that he performed this task admirably; nothing could have been fairer than his handling of the facts.
But questions of international law rarely, if ever, arise in county courts, the jurisdiction of which is limited to claims in which the amount in dispute does not exceed £400. Judge Collingwood had made no special study of international law. Further, in the Surrey County Court, litigants dissatisfied with his rulings on breach of contract, running-down actions, the provisions of the Rent Restriction Acts, and other subjects on which he had wide experience, had a right of appeal to the High Court. But, at this war-crimes trial at Hamburg, the mantle of infallibility which the Nuremberg Tribunal had assumed had been draped round Judge Collingwood’s shoulders. From his rulings on international law the accused had no appeal.
Suffice it to say, Judge Collingwood rejected every important contention of the defence. He advised the tribunal that neither superior orders nor acts of state were any reply to the charges and that the accused was responsible for the full exercise of executive power within the area of his command, whether this power had been given solely to him or whether he had shared it with others. He laid down that the accused was bound to comply with the rules of civilized warfare whether his opponents complied with these rules or not. This latter ruling was particularly remarkable as the British Manual of Military Law declares just the opposite, as follows:
“The rules of international law apply only to warfare between civilized nations where both parties understand them and are prepared to carry them out.”
Most remarkable of all, however, was Judge Collingwood’s ruling that the execution of prisoners as a reprisal was illegal, under all circumstances. On this point the British Military Manual is most explicit. Article 453 lays down:
“Reprisals between belligerents are retaliation for illegitimate acts of warfare for the purpose of making the enemy comply in future with the recognized laws of war. They are not a means of punishment, or arbitrary vengeance, but of coercion.”
To remove any possible doubts on the matter, Article 454 adds:
“Reprisals are an extreme measure because in most cases they inflict suffering upon innocent individuals. In this, however, their coercive force exists and they are indispensable as a last resource.”
It is not clear whether Judge Collingwood thought that the authors of the British Military Manual went astray in this exposition of international law or whether he considered that reprisals were permissible to British generals but illegal in all circumstances to foreign generals or, at any rate, to German generals. It is certain, at least, that a British general who acted strictly in accordance with the directions of the British Military Manual would have no reason to fear a British court-martial. It is, no doubt, equally certain that he would now find this little protection in the event of his discovering himself on the losing side and being subjected by his captors to a war-crimes trial. In a letter to The Times, written immediately after the trial, Captain Liddell Hart concludes:
“I have studied the records of warfare long enough to realise how few men who have commanded armies in a hard struggle could have come through such a searching examination, of their deeds and words, as well as Manstein did. His condemnation appears a glaring example of either gross ignorance or gross hypocrisy.”45
Some may think that this opinion makes insufficient allowance for the enormous difficulties of the task which the tribunal had had to face. They had nothing to do with the decision to charge the Field Marshal as a war-criminal: this decision was entirely the responsibility of the British Government. They had nothing to do with the framing of the seventeen charges: two of the charges had been brought by the Communist Polish Government, and fifteen by the Communist Russian Government. The purpose of the trial must have been as obscure to them as to everyone else. They were asked to find as proved facts which the prosecution admitted could not be proved in accordance with the recognised rules of evidence. On difficult points of international law, upon which even the experts disagreed, they were under the guidance of a county court judge. Thoroughly fuddled and confused, who can doubt that they did their best?
Everyone knows the story of how, during the Crimean War, an aide-de-camp galloped up to the Light Brigade with the order to charge the enemy’s guns. “What enemy, Sir, what guns?” enquired Lord Lucan testily. “There are the enemy, my Lord, there are the guns!” replied the aide-de-camp, slightly scandalised by the question, with an airy wave of his hand towards the enemy’s positions. Lord Lucan did not condescend to ask further questions: his duty was to command the British Cavalry Division in the Crimea and not to try to make sense of the commander-in- chief’s orders. Clearly, the commander-in-chief wanted the Light Brigade to charge the enemy’s guns. So, he communicated the order personally to the commander of the Brigade, Lord Cardigan. The latter was equally bewildered. Still, his duty as a soldier was to carry out orders, not to try to interpret them. He was bound to assume that his superiors knew what they were doing. Drawing his sabre, he led his squadron in a charge in what proved to be the wrong direction down a valley destined to become immortal as the Valley of Death.
Neither at Balaclava, in 1854, nor at Hamburg, in 1949, it a soldier’s duty to ask questions about orders. “Theirs not to reason why “—particularly on subjects about which the experts contradicted each other. The gallant band composed of one Lt. General, a Major-General, two Brigadiers, and three Colonels figuratively straightened their shakos, drew their sabres, exclaimed “Hurrah!” in unison and led each other to the charge. That “someone had blundered” was obvious in both cases, but in neither did this affect the simple duty of a soldier. At Balaclava the result was dismissed as magnificent but not war; at Hamburg, the result may be dismissed as far from magnificent and certainly not law.
The findings of the tribunal can be briefly summarised. There were seventeen charges in all, two from Polish sources and fifteen from Russian. Field Marshal von Manstein was acquitted outright on eight charges, including the two Polish charges which, as Mr. Paget says, “were so flagrantly bogus that one was left wondering why they had been presented at all.” He was held accountable on seven charges, after the prosecution had been permitted by the court to modify them after the close of the case for the defence—a very questionable procedure. So modified, the upshot may be regarded as equivalent to an acquittal. On two charges, only, was the Field Marshal held to be guilty.
The two charges upon which he was held guilty were, first, that he had permitted Russian prisoners to be used in clearing mine-fields; the Allies after the war made it a common practice to use German prisoners of war for mine-clearing. Secondly, that he permitted Russian civilians to be deported from his area for work in Germany; at the time the tribunal was deliberating on this charge, it was common knowledge that in Russia and Siberia there were tens of thousands of civilians deported for forced labour, not only from Eastern Germany but also from the Baltic countries overrun and annexed by Russia in 1939, and from Hungary, Finland and Roumania.
The Field Marshal’s conviction on the charge that he had permitted Russian civilians to be deported from his area for work in Germany is particularly remarkable because, at the time it was alleged he committed this offence, the Allied leaders were formulating and approving the Morgenthau Plan which specifically approved the use of “forced German labour outside Germany” as a form of reparations.46 It should also be observed that, at the time of von Manstein’s trial, it was very widely known that several millions of prisoners of war were being detained by the Soviet Government for forced labour in Russia. According to estimates prepared by the information section of NATO, these prisoners included 2,000,000 Germans, 370,000 Japanese, 180,000 Roumanians, 200,000 Hungarians, and 63,520 Italians. According to the NATO estimates, 40 per cent of these could in 1952 be reckoned as dead. The surviving 60 per cent were still working as forced labour.47
Compared with the gravity of the original charges, as outlined in Comyns Carr’s opening speech, the offences of which the Field Marshal was found guilty may be dismissed as trivial. Nevertheless, the “sixty-two year old, white-haired, half-blind soldier” was solemnly informed that he “must serve eighteen years in prison to start from today: the period of four years which you have already spent in custody has been taken into consideration.”
Having regard to the tributes paid by the defence to the courtesy and humanity of the tribunal, it is regrettable that the phrasing of the judgment gives so unpleasant an impression. Obviously, it could make no difference to an elderly invalid whether the four years he had spent as a prisoner of war were taken into account or not. Assuming that it was really intended that he should serve his sentence, his chances of emerging a free man amounted to nil, whether his sentence was eighteen years or eighty. Equally unpleasant is the impression made by the subsequent reduction of the sentence from eighteen to twelve years.
This ostentatious display of anxiety that the length of the sentence should exactly fit the crime appears such transparent humbug that it is difficult to consider it with patience. It must be left for persons with a mathematical turn of mind to work out what would have been a suitable penalty to inflict, had the accused been found guilty on all seventeen charges, assuming that a sentence equivalent to a life sentence was a fitting penalty for two of the least serious of these charges—charges of which the accusers themselves were notoriously guilty. The court gave no indication of the grounds upon which they had accepted certain charges and rejected the others; whether they had accepted the principles of international law as laid down in the British Military Manual or whether they had preferred to be guided by the views on international law accepted in the Surrey County Court; or to which charge they attached particular gravity, or by what calculation they had arrived at the penalty of eighteen years. There was, in fact, no apparent connection between the findings and the sentence.
The most charitable view is that the tribunal was, at the conclusion of the case, so completely befuddled by the ordeal through which they had passed that they overlooked the fact that their verdict amounted to an acquittal, and proceeded to pass a sentence of life imprisonment as the obvious alternative to the death penalty. Having decided not to acquit, they probably imagined that they were being lenient. A complete disappearance of all sense of proportion is commonly a symptom of a general paralysis of the reasoning powers resulting from prolonged mental exertion along unfamiliar paths.
British foreign policy has often greatly puzzled foreigners. Frequently it has appeared an insane compromise designed to serve conflicting aims; not seldom, it has appeared to be directed to no apparent aim of any kind. But the gradual acquisition of an Empire which, by 1919, had come to include more than 11,500,000 square miles, that is to say, about a fifth of the land surface of the globe, with a population of over 400,000,000, about a fourth of the world’s inhabitants, appeared to establish that “Though this be madness, yet there is method in’t.” Hence rose the legend of perfidious Albion.
Mr. Paget expresses the opinion that the Manstein trial “was a political as opposed to a judicial process.” It was, in fact, an act of policy by the British Government, decided upon deliberately, according to Lord Jowitt, after he had been given six months worry. The question, therefore, naturally arises as to what was the precise political object which this act of policy was intended to serve. In spite of ingenious and widespread speculation outside Great Britain, this question has remained unanswered to this day.
In order to solve this mystery two very material facts must be taken into consideration; first the obligations into which the British Government had entered to hand over any prisoner of war in British custody accused by an ally of Britain of a war-crime, and secondly the indignant opposition aroused in British military circles at the prospect of a distinguished European soldier being handed over to his communist enemies to be slaughtered in accordance with the ancient traditions of primary warfare. In the British Army, at least, the traditions of civilized warfare survived.
The real struggle concerning Manstein’s fate took place behind the scenes before his trial began. On the one side were his military opponents in the great campaign in France in 1940, all the more determined by their defeat in that year to vindicate the traditions of European civil warfare. On the other side were the politicians, fearful of giving the Communist tyrant Joseph Stalin technical ground for complaint. The struggle ended with a characteristically British compromise. It was decided that a British military tribunal should be assigned the fantastic task of deciding whether certain alleged acts committed in ferocious primary warfare were reprehensible if judged by the standards of civilized warfare.
Foreign critics should note that the outcome of this irrational compromise ultimately achieved the two-fold purpose intended: the British traditions of civilized warfare were outwardly maintained; Stalin was given no pretext for repudiating his treaty obligations with his allies; and Field Marshal von Manstein’s life was saved from his vindictive Russian and Polish enemies.
Postscript
Now that the truth is no longer obscured by the myths of propaganda, only one question of universal interest remains concerning that unique period of history labelled in this book “the advance to barbarism”. There can be no question that this retrograde movement of civilization began in 1914. Historians will long find in the distinctive characteristics of this period, genocide, terror bombing, mass-deportations of populations and war-crimes trials, numberless problems for investigation and dispute. But only one problem remains of personal interest to everyone.
Has the series of chain reactions which began with the outbreak of the European civil war in 1914 come to an end?
No one dreamed in 1914 that the war which had just broken out would cause any more lengthy and violent reaction than any previous civil war, although the furious passions which it generated from the start puzzled many observers. Within a year of the outbreak of hostilities, in explanation of the boundless enthusiasm which inspired his troops, mostly volunteers, setting forth on the Dardanelles expedition, General Sir Ian Hamilton wrote in his diary, “Once in a generation a mysterious wish for war passes through the people.” He offered no diagnosis of this mysterious wish. No doubt the subject will be cleared up one day in the usual way by giving it a Latin name. Looking back after nearly twenty years at a time when the Wicked Kaiser Myth was still accepted by most professional historians, Field Marshal Lord Allenby declared, “The great War was a period of lengthy insanity.” Looking back after the passage of another thirty years it is clear that the so-called Great War was a relatively mild preliminary symptom.
The mysterious periodic wish which found expression in 1914 had been generated among the leading members of the White Race during the latter end of the 19th century, a period to them of such absolute security and boundless prosperity that war had come to seem a relief from boredom. For a decade an explosion had been inevitable. The fatal spark was provided on the 28th June, 1914, by a moronic student named Gavril Princep successfully carrying out the mission entrusted him by certain leading members of the Serbian Government to murder at Serajevo the Austrian Archduke Francis Ferdinand.
Are there reasonable grounds for thinking that the chain reaction set in motion by the murder of the heir to the Austrian throne has at last come to an end?
It is difficult to keep this question distinct from the question so often asked, what will be the consequences to the human race of the invention of the atomic bomb?
In origin the discovery of the secrets of nuclear fission and of the retrograde movement in human affairs which began in 1914 are quite unconnected.
The atomic bomb was the practical application for the purpose of destruction of the discoveries by the physicists in the mid-19th century of the nature of the atom. By the end of the century it had become established that enormous forces were locked up in the atom and the possibility was dimly realised that it might be possible to use these forces to cause an explosion of unprecedented violence. By the commencement of the Second World War, the means by which this aim might be achieved had been realised and Albert Einstein appealed to President Roosevelt to spare no pains or expense to test whether the theoretical knowledge obtained by laboratory experiments could be used for constructing a contraption which would be able to blot out human life on a gigantic scale.
It was an unhappy chance that the secrets of atomic structure should have been finally mastered in 1945. It is without question the greatest tragedy in human history that mankind should have become possessed of unique powers of self-destruction just at a time when mankind had never before been less fitted to use these powers sanely.
It is certainly arguable that the atomic bomb would never have been constructed except during a ferocious war when nothing seemed to matter but the attainment of victory. Laboratory experiments in peacetime could only have confirmed a theoretical possibility of making an atomic bomb: in peacetime no government could have undertaken the fabulously costly tests which were necessary to establish this theoretical possibility was practical. Also in peacetime no government could have faced the general opprobrium which it would have incurred from an attempt, on too gigantic a scale to be kept secret, to construct a contraption designed not for use on the battlefield but to blot out civilian populations.
It is arguable also that the atomic bomb when constructed would not have been tested by dropping it on a defenceless city had not the conscience of mankind been previously paralysed by a long series of crimes against humanity.
Certainly the dropping of the first atomic bomb on Hiroshima may be regarded as a natural sequel to the adoption three years before of the Lindemann Plan to initiate a terror bombing campaign against Germany. It was inspired by the same spirit and it may fairly be regarded as the final and supreme example of terror bombing without disguise and excuse.
There is a remarkable similarity between the mass air raid on Dresden and the attack on Hiroshima six months later. No one protested when in 1967 Lord Boothby described the air raid on Dresden as “a dastardly act”, not because of the number of victims but because it served no military purpose.48 The dropping of the first atomic bomb was also an act of pure terrorism. It fulfilled no military purpose of any kind. Belatedly it has been disclosed that seven months before it was dropped, in January 1945, President Roosevelt received via General MacArthur’s headquarters an offer by the Japanese Government to surrender on terms virtually identical to those accepted by the United States after the dropping of the bomb: in July 1945, as we now know, Roosevelt’s successor, President Truman, discussed with Stalin at Bébelsberg the Japanese offer to surrender.
The motivation behind the dropping of the atomic bomb on Hiroshima may be said to be still a subject of dispute. It is certain that Truman did not give the order for it to be dropped on the insistence of his military advisers. Some of the scientists concerned in its construction opposed this step on humanitarian grounds: others including the famous Jewish physicist Dr. Robert Oppenheimer were in favour because, they urged, only by a test in war conditions could it be demonstrated that their long and costly efforts had succeeded in creating a weapon of unique power for taking human life.49 In short the Japanese people were to be enlisted as human guinea-pigs for a scientific experiment.
Although no military or political purpose existed to be served, President Truman gave the necessary order to drop the bomb: some seventy thousand men, women and children were killed in a fraction of a second.
Reverting to the question, “Are there reasonable grounds for thinking that the chain reaction triggered off in 1914 by Princep’s crime has at last petered out?”, the invention of the atomic bomb has made it possible to give an optimistic reply.
Each stage of this chain reaction was the natural consequence of the one which preceded it. Throughout the process the next stage was long beforehand plainly discernible. The furious passions aroused by the First World War led inevitably to the Versailles Diktat which in turn led inevitably to the Second World War during which all restraint was in the end abandoned. When hostilities ceased in 1945 the next stage of the chain reaction seemed obvious. Roosevelt’s blind subservience to Stalin at die Teheran Conference in 1943 foreshadowed the subjection of Western Europe by force to Communism. It appeared only a matter of time before Stalin would feel himself strong enough to abandon the pretence of being a loyal ally in a crusade for democracy when he would of course order the Red Army to advance. This time seemed to have arrived when Stalin in 1948 threw off the mask of friendship and ordered West Berlin to be blockaded. But the crisis passed and what seemed inevitable did not take place. The only reason was Stalin belatedly realised that the United States alone possessed a stock pile of atomic weapons and prudently decided to postpone the use of force. As a consequence the Morgenthau Plan, the projected next step along the road to barbarism, was cancelled in order to enlist the aid of the German people for the defence of Europe.
Thus occured the first break in the chain reaction which had been proceeding without interruption for over three decades.
Another reason for optimism is that the invention of the atomic bomb has entirely transformed the conditions and prospects of warfare. The poet Rupert Brooke expressed the outlook to war of a generation bored by uneventful years of peace and prosperity when he wrote in 1914, “Now God be thanked who has matched us with His hour!” The mere existence of atomic weapons makes it impossible for anyone now to feel as Rupert Brooke felt when in a letter he wrote before setting out on the Dardanelles expedition, “It is too wonderful for belief: I had never imagined Fate could be so kind. I have never been so happy in my life, so pervasively happy! I suddenly realise that the ambition of my life has been—since I was two—to go on an expedition against Constantinople!”
The prospect of strutting in a victory parade through Constantinople or some other capital has ceased to be alluring now that it must be clouded with the knowledge that concurrently one’s own homeland might be being turned into a radio-active rubbish heap.
Finally, leaving out of account the changes brought about by the invention of nuclear weapons, the conditions of warfare with conventional weapons have reverted to conditions similar to those which existed in the 18th century. A modern army no longer consists of hordes of hastily-trained conscripts. The military strength of a country now consists of long-service soldiers trained in the use of complicated weapons, transport and equipment. Such troops will fight in accordance with the orders of their executive government: they do not need to be inflamed by mendacious hate-propaganda.
To intensive hate-propaganda can be traced all the unique features of the period labelled in this book “the advance to barbarism”—genocide, terror bombing, mass-deportations and war-crimes trials.
Now that the necessity no longer exists for rulers to employ hate-propaganda as a stimulus to sustain the martial spirit of their subjects, it appears reasonable to hope that the chain reaction which began in 1914 has come to an end and that a new period of history has commenced in which will be absent the characteristics which are the products of hate-propaganda.
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Dr. Paul Leverkühn, Verteidigung Manstein, Nölke Verlag, Hamburg, 1950.
Joseph Mackiewicz, The Katyn Wood Murders, Hollis & Carter, London, 1951.
Philip Magnus, Kitchener, John Murray, London, 1958.
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Arthur Ponsonby, Falsehood in War-time, Allen & Unwin, London, 1928.
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A. F. Reel, The Case of General Yamashita, University of Chicago Press, 1949.
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Axel Rodenberger, Der Tod von Dresden, Das Grüne Blatt, Dortmund, 1951.
Elliott Roosevelt, As He Saw It, Duell, Sloan & Pearce, New York, 1946.
Hans Rumpf, Das war der Bombenkrieg, Gerhard Stalling Verlag, Oldenburg, 196L
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J. M. Spaight, Bombing Vindicated, Bles, London, 1944.
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A. J. P. Taylor, The Origins of the Second World War, Hamilton, London, 1961.
Freda Utley, The High Cost of Vengeance, Regnery, Chicago, 1949.
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1 For example, The Case of General Yamashita by Frank Reel (University of Chicago Press, 1949) and Manstein by R. T. Paget (Collins, London, 1951). The details of the trial of Field Marshal Kesselring remain, after twenty years, safely buried in an official record.
2 Elliott Roosevelt, As He Saw it, New York, Duell, Sloan and Pearce, 1946, pp.188-191, previously published in Look (see issue of October 1, 1946). Mrs. Eleanor Roosevelt, the widow of the President, supplied the foreword to her son’s book, so that his account of what took place at Teheran must be regarded as the authorised version of the Roosevelt clan, whatever versions others may later see fit to give us.
3 Eden’s unruffled demeanour certainly contrasts strongly with Mr. Churchill’s uncontrollable indignation. Their attitude to terror bombing was similarly different. Churchill never quite overcame his misgivings—see page 194: Eden’s only criticism of the Lindemann Plan was that it excluded from attack working-class houses in cities with less than 50,000 inhabitants—see his letter to Sir Archibald Sinclair quoted on page 195.
4 Not until the Iron Curtain is lifted shall we know how many Germans captured on the field of battle or arrested after the termination of hostilities by the G.P.U. were done to death either summarily or after some form of trial. Including those liquidated in Prague and Warsaw, and those lynched in remote districts, the total probably vastly exceeded Mr. Stalin’s stipulated figure of 50,000.
5 In a nutshell the Morgenthau Plan was designed to bring about, artificially, in Germany the conditions of poverty, distress, and degeneration existing at that time in parts of the American South as a result of natural economic causes, which have been so graphically described by Erskine Caldwell in Tobacco Road. Mr. William Henry Chamberlain, in his book America’s Second Crusade (Chicago, Regnery, 1950, p.306) writes as follows: “It is no exaggeration to say that the Morgenthau Plan, accepted by Mr. Roosevelt and Mr. Churchill at the Quebec Conference in September 1944, if applied would have been an indiscriminating sentence of death for millions of Germans. The area in which it was proposed to forbid all heavy industries and mining is one of the most urbanized and thickly populated in Europe.”
6 See Article 19 of the Charter attached to the London Agreement.
7 Mr. Montgomery Belgion points out, in his Victors’ Justice, p. 76, that at Nuremberg “the chief Russian prosecutor was a lieutenant-general but the senior of the two Russian judges was only a major-general.” The former was the spokesman of the Soviet Government; the latter had a no more active role to play than Henry VIII’s judges at Glastonbury.
8 Stalin, by Stephen Graham, Hutchinson, London, 1939, p. 37.
9 Russian Purge, by F. Beck and W. Godin, Hurst and Blackett, London, 1951, p. 87.
10 See the article, The Wrong Road to Peace, in the New Republic, June 28, 1933, pp. 171-174.
11 [Philately is the study of postage stamps.—Ed.]
12 Even the great Lord Mansfield spoke with approval of “the trite maxim of the constitutional law of England that private mischief had better be submitted to than that public detriment should ensue.”
13 See Dr. Taylor’s review of Rudolf Hess: The Uninvited Envoy by James Leasor (Allen and Unwin, London, 1962) in the Observer of May 6th, 1962.
14 Not only beneath the dreaming spires of Oxford but among the untutored savages of Africa the proceedings at Nuremberg have soon become a byword of disrepute. This was shown in 1967 when Moise Tshombe was kidnapped by his enemies when travelling on a British plane and taken a prisoner to Algeria: reports from the Congo, published in the British and American newspapers explained that his political rivals in the Congo intended to demand his extradition from Algeria in order that he might be executed for treason “after a Nuremberg trial.” For example, see the report of the correspondent of the Sunday Express, July 9, 1967.
15 This ruling of the Nuremberg Tribunal was dutifully followed subsequently by lesser war-crimes tribunals. For example in August 1947 at Dachau before an American military tribunal this ruling saved the life of Otto Skorzany, the most famous commando leader of the Second World War, known in the popular press as “the most dangerous man in Europe” on account of his daring rescue of Benito Mussolini and his kidnapping of the Hungarian Regent, Admiral Horthy. For want of any more plausible charge, Skorzany was accused of conducting warfare with troops wearing captured enemy uniforms contrary to the code of civilized warfare. Everyone knew of course that this had long been routine practice of commando leaders on both sides. But Skorzany was being kept in strict confinement and was thus unable to call evidence to establish this fact, well known to the members of the court who exercised their legal right to profess judicial ignorance of what could not be proved by sworn evidence laid before them. Skorzany’s fate appeared sealed.
It happened however that the news of this prosecution came to the ears of the most celebrated British leader of the resistance movement in France, Wing Commander Yeo-Thomas, whose nom de guerre was the White Rabbit. To him judicial ignorance in the circumstances seemed blatant hypocrisy, and he volunteered to give evidence for the defence. He told the tribunal that it had been his frequent practice to lead resistance units dressed in captured German uniforms on sabotage raids against the occupying forces. In these raids, he said, enemy uniforms were in the first place obtained by French civilians, secret members of the resistance movement, catching German soldiers off-duty unawares, killing them and appropriating their uniforms and papers.
In view of this unwelcome evidence, judicial ignorance became impossible and the court followed the ruling of the Nuremberg Tribunal in the Donitz case and granted the practice of conducting warfare in enemy uniforms a certificate of innocence. Skorzany was acquitted without further argument.
See Commando Extraordinary by Charles Foley, London, Longmans, 1954, pages 161-177.
16 Politics: Trials and Errors by Lord Hankey, Pen-in-Hand, Oxford, 1950, page 78.
17 The Campaign in Norway by Dr. T.K. Derry, H.M. Stationary Office, 1952.
18 Political Adventure, Weidenfeld and Nicholson, London, 1964.
19 Hermann Göring and the Third Reich by Charles Bewley, Devin-Adair, New York, 1962.
20 See the articles by the present writer, The Great Krupp Myth in Social Justice, June 1963, and A War Myth on Trial in Social Justice, January 1964.
21 See the article The Tokyo War Crimes Trials by George F. Blewitt in American Perspective, Summer 1950.
22 See Politics: Trials and Errors by Lord Hankey, Pen-in-Hand, Oxford 1950, page 80.
23 [“My object all sublime / I shall achieve in time / To let the punishment fit the crime / And make each prisoner pent / Unwillingly represent / A source of innocent merriment!” —Chorus to the song “A more humane Mikado”–Ed.].
24 In a photograph described as “the last of the Nuremberg trials” which opened on February 5th 1948, published in the Illustrated London News of March 6th 1948, it was noted with surprise that all the thirteen occupants of the dock, three Field Marshals, nine Generals and one Admiral, were attired in civilian clothes. This was an essential feature of the proceedings in accordance with the theory that a soldier ceases to be a soldier and loses all his rights as a soldier if he be stripped of his uniform. By the same reasoning, of course, a king must be deemed to abdicate every time he retires for the night unless he takes the precaution of wearing his crown in bed as a nightcap.
25 See the interview with General Lesse, reported by Major Redman in the Sunday Pictorial, May 11, 1947.
26 See the speech of Lord Justice Lawrence (then recently created Lord Oaksey) in the House of Lords on the 27th April 1948, in which he said, referring to the Nuremburg Trials, “We have just been joining with other countries in putting to death our enemies in Germany.”
27 See the articles “Nicht Gnade sondern Recht” published by Der Stern. The issue of August 5, 1951 contains a photostatic copy of Viscount Alexander’s letter, dated July 26th, 1951, reproduced in the Daily Express of August 9, 1951.
28 It was no doubt in contemplation of further “tragic mistakes” being perpetrated that the Bishop of Monmouth justified the destruction of the Monte Cassino on the ground that “Jesus Christ came to save souls and not to preserve the Temple of Jerusalem.” This is, perhaps, the most perfect example of a non sequitur in the English language!
29 A. Frank Reel, The Case of General Yamashita, Chicago, University of Chicago Press, 1949.
30 R. T. Paget, Manstein, London, Collins, 1951.
31 The Peninsular War, Oxford, Oxford University Press, 1902-1922, Volume I, p. XI.
32 The soldier, Sir William Napier, refers to Suchet’s methods as “vigorous and prudent measures” while the civilian, Professor Oman, refers to them as “a series of atrocities”. Quat homines, tot senteniae! [“There are as many opinions as there are men.”–Ed.]
33 In Crimes Discreetly Veiled, published by Cooper Book Coy, London, and Devin-Adair, New York, in 1958. A German translation entitled Verschleierte Kriegsverbrechen was published by Priester Verlag, Weisbaden, in 1959 and a Spanish translation entitled Crimenes Discretamente Ocultados by Editorial Nos, Madrid, in 1961.
34 So described in an official reply dated the 26th June, 1953, by Senor Scelba, Italian Minister of the Interior, to an appeal for clemency for Major Reder by the Austrian State Secretary, Graf.
35 The Case of General Yamashita by A. Frank Reel, University of Chicago Press, Chicago, 1949.
36 The annexation of the Philippines from Spain in 1899 inspired Rudyard Kipling to write his famous poem, “Take up the White Man’s burden” in which is enshrined the very spirit of what is now called “Colonialism”.
37 Article 19 of the Charter (See page 240 of this book) should be compared with Section 16 of MacArthur’s regulations, which reads: “The Commission shall admit such evidence as in its opinion would be of assistance in proving or disproving the charge, or such as in the Commission’s opinion would have probative value in the mind of a reasonable man.” In particular the court was authorised to accept (1) any document which appears to have been issued or signed without proof of the signature or the issuance of the document; (2) all affidavits, depositions or other statements and any diary, letter or other document appearing to the Commission to contain information relating to the charge; (3) a copy of any document or other secondary evidence of its contents, if the Commission believes that the original is not available or cannot be produced without undue delay.
38 Fallschirmjäger by General H. B. Ramcke, Lorch-Verlag, Frankfurt am Main, 1951, page 101.
39 Capt. Liddell Hart, The Other Side of the Hill, London, Cassell, 1948, pp. 70-71.
40 The Daily Mail, April 6, 1940.
41 R. T. Paget, Manstein p. 81.
42 R. T. Paget, Manstein p. 72-73.
43 Daily Mail, October 22, 1949.
44 Paget, op. cit., p.192.
45 The Times, January 11, 1950.
46 See William Henry Chamberlin, America’s Second Crusade, Chicago, Regnery, 1950, pp. 210, 307.
47 See Time, July 7, 1952.
48 See Lord Boothby’s letter to the Sunday Express published on the 15th January 1967.
49 At the enquiry before the U.S. Atomic Energy Commission in the Spring of 1954 to investigate his alleged communist associations, Dr. Oppenheimer explained, “When you see something which is technically sweet, you go ahead and do it.… We always assumed that if the bombs were needed, they would be used.… We wanted to have it done before the war was over and nothing more could be done.”
His colleague Dr. Alvarez testified more tersely. “We wanted some method of testing the effectiveness of the bomb over enemy territory.”
See the article The Oracles are Dumb by Isabel Paterson in the National Review of May 23, 1956, page 12.
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