Finally, a tough British declaration on this issue might lead to German war crimes trials of English POWs. The Germans had announced that they considered the British bombing of German civilians in undefended cities to be a war crime under the Hague convention, and even some Western legal experts were prepared to concede that they might be right. Hitler’s government threatened to prosecute and hang captured British aviators if the bombings continued.18 The Foreign Office and War Office agreed that this threat had to be taken seriously, notwithstanding Germany’s own practice of bombing cities.
Consequently, the FO was determined to bottle up any public statements about putting Nazi war criminals on trial. They adopted a strictly “legalist” approach to the issue that narrowed the definition of war crimes as much as possible. As the British diplomats saw it, the legal concept of war crimes should be limited to a handful of specific acts that might typically be perpetrated by individual soldiers acting outside of orders, such as the torture or summary execution of POWs. The Allies’ public promises to track down Nazis and bring them to justice might make good propaganda for the moment, in Eden’s opinion, but in the end it would undermine his ability to negotiate with the Germans. It might also lead to a humiliation for the Allies like that which had followed World War I, where German war crimes suspects had evaded virtually all punishments. The Foreign Office contended that any wider definition of war crimes—such as including the persecution of civilians inside Germany—would enlarge the scope of international law to a degree that the British government might find itself in the dock after the war for its treatment of its colonies.
Much better, Eden thought, to avoid making inflammatory promises of justice that England was unlikely to keep. Eden’s comments at the St. James ceremony carefully separated British policy from that of the rest of the Allies. While “welcoming” the declaration, the foreign minister was at pains to point out that the promises of punishment were an Allied, not a British, policy.19
In Washington, State Department officials responsible for monitoring conditions inside Nazi-occupied Europe sweated through the summer of 1942 at their ponderous, ornate headquarters just down the street from the White House. Offices there had once been large and airy, but in wartime Washington much of the building had been cut up into breathless cubicles without windows or ventilation. Stale cigarette smoke sat for days, insinuating itself into clothing, paperwork, and skin, as the temperature hung above 90 degrees for weeks at a time.
In late July, only six months after the Wannsee conference, the State Department again received word of the systematic gassings of Jews in Poland. German industrialist Eduard Schulte had smuggled new information concerning the murders into Switzerland and arranged for intermediaries to pass his information to U.S. and British authorities.20
The State Department’s European Division was the first office in the U.S. to receive this news. It made little impact. Elbridge Durbrow and R. Borden Reams were convinced that Hitler’s mistreatment of Jews was limited to forced labor and petty persecution. Schulte’s message was a “wild rumor inspired by Jewish fears,” they said, and refused to transmit his intelligence to President Roosevelt or to Secretary of State Cordell Hull. Durbrow cited the “fantastic nature of the allegation and the impossibility of our being of any assistance” as reason enough to refuse to make the message public.21
R. Borden Reams was at that moment engaged in burying a second document, a letter from the U.S. embassy in London concerning a British proposal to create a joint Allied commission for the investigation and prosecution of Nazi war crimes. British parliamentary leaders had been pushing for open debate on their government’s apparent failure to respond to the tide of Nazi atrocities, and there was some sentiment—though not a parliamentary majority—that Great Britain should open Palestine to Jewish refugees. Anthony Eden was intent on heading off consideration of such radical measures, and he concluded that a war crimes commission would be an opportune way to avoid taking more concrete action. He told U.S. Ambassador John Winant of his dilemma, explaining that he would not be able to hold off a public debate much longer. He needed a quick U.S. approval of a paper war crimes commission to give him some ammunition to use once parliamentary talks began. Winant’s wire to Washington asking for prompt White House approval ended up on R. Borden Reams’s desk. Reams strongly opposed drawing any further attention to the Jewish refugee issue, however, and an international commission would do just that. He tucked the telegram away in the files without responding to it or sending word to the White House.22
The initiative for the joint Allied commission on atrocities, which would eventually become the United Nations War Crimes Commission, can be traced to a campaign backed by influential journalist Walter Lippmann and organized in large part by former League of Nations executive Arthur Sweetser. In late June 1942, Lippmann and Sweetser approached U.S. Assistant Secretary of State Adolf Berle with a series of suggestions on how to respond to the Nazi massacres earlier that month at Lidice, Czechoslovakia, where the SS had murdered 199 Czech men and boys in retaliation for the assassination of SS chief Reinhard Heydrich.
Lippmann and Sweetser proposed to attack Nazi terror by exposing Lidice and similar incidents to the intense glare of publicity, by military reprisals against Germany for crimes against civilians, by a public promise to try Germans for these crimes once the war was over, and by creation of a “central depository of the United Nations” to collect evidence concerning Nazi crimes. Allied intelligence services and underground movements throughout the Nazi-occupied territories should systematically send evidence to the depository, Lippmann and Sweetser contended, where “a thoroughly competent juridical committee” would examine each case and prepare it for trial after the war ended.23
The proposal was in a certain sense a continuation of the debate over crimes against humanity that had begun over twenty years earlier at the Paris Conference. Both Lippmann and Sweetser had participated in the Paris negotiations, Lippmann as a leading member of the embryonic U.S. intelligence organization known as “The Inquiry,” and Sweetser as a member of the U.S. government’s press bureau in Paris. At the time, both had specialized in the use of propaganda and psychological warfare in international affairs, and now both were convinced that tough, consistent psychological operations focusing on Nazi atrocities would undermine the Nazis’ public support, contribute to Hitler’s eventual downfall, and save lives in the meantime.
Berle liked the proposal. He did not think that the new commission and the associated publicity would end Nazi terror altogether, but he did think that it could temper German behavior and save innocent people. Berle made sure that the proposal immediately found its way to President Roosevelt.
The Lippmann-Sweetser forces appear to have made a nearly identical approach to Churchill. When the prime minister met with Roosevelt in Washington during late June, he proposed a United Nations Commission on Atrocities in language almost identical to what Berle had seen. FDR agreed with the thrust of Churchill’s remarks, and the prime minister returned to London with an agreement in principle to move ahead quickly with the United Nations plan.*24
Although Eden was suspicious of the commission plan from the beginning, he sought to use it to derail more substantive action. In a War Cabinet meeting on July 6, 1942, Eden referred to recent papers by legal experts at the Foreign Office and War Office stating that however dreadful the Nazis’ actions might be, they were “not recognized as crimes under international law to be dealt with and punished by a court,” as the War Office put it. Further, the punishment of senior German leaders would be better determined at the end of the conflict, when it could be a bargaining chip during the negotiation of an armistice.25
Despite Eden’s opposition, the Cabinet agreed in principle to back the “Commission on Atrocities” that had been outlined in the Churchill-Roosevelt meeting. The details of the new organization’s responsibilities and of its role in Allied psychological warfare were to be hammered out at a special subcommitt
ee meeting later that month. It was Eden, however, who dominated that subcommittee, and by the time the proposal had made it through his wringer, it had become ensnarled in bureaucratic contradictions and red tape that would take years to untangle.26
The subcommittee first dropped the recommendation that Allied intelligence agencies report evidence of war crimes to a central commission. Instead, fewer than a dozen commission clerks would be assigned to collect evidence of Nazi crimes throughout Europe and to report to each Allied country’s courts and national war crimes investigators. The new group was “perhaps” to make recommendations on how to deal with captured war criminals, Eden’s charter read, but at the same time, any “suggestion of some sort of international court for the trials of war criminals should be deprecated.” The new charter stressed that it was neither “necessary nor desirable to create a new body of law, for war crimes are already sufficiently well defined.”27 Eden’s narrow definition of war crimes and of Nazi culpability for them remained Britain’s official policy.
Back in Washington, the State Department’s legal advisor, Green Hackworth, lobbied to limit any international action on war crimes to the creation of a fact-finding body. Hackworth preferred that nothing be done to bring public attention to the question of whether most Nazi atrocities could actually be prosecuted as war crimes. He advocated a new name for the proposed commission, the United Nations Commission for the Investigation of War Crimes, to underline the strictly information-gathering role that the group was to play. The text of the formal U.S. endorsement of the commission (which was necessary to complete the earlier, informal Churchill-Roosevelt agreement) was at last relayed to London on the afternoon prior to Britain’s parliamentary debate. There was no time at that point either for further discussion of the character of the new organization or for any but the most cursory briefings of the Dutch, Czech, Belgian, and Polish governments-in-exile, who had provided much of the initiative for the creation of the commission. The Soviet government was not informed at all.28
On October 7, 1942, British War Cabinet Minister Lord Simon announced the first formal initiative against Nazi crimes by the major Western Allies: the formation of the United Nations Commission for the Investigation of War Crimes (soon to be renamed the United Nations War Crimes Commission, or UNWCC). Its responsibilities, he said, would center on “naming and identifying … the persons responsible for Nazi atrocities, and in particular [for] organized atrocities.” Conspicuously absent from Lord Simon’s announcement (and from a similar declaration made by President Roosevelt later that same day) was any indication of how the commission’s fact-finding task was to be carried out.29 The new UNWCC thus existed in a limbo without officers, structure, funding, staff, or any but the most vaguely defined mission.
The commission sidestepped the explosive question of whether Nazi crimes against civilians inside Axis countries were considered war crimes within the scope of the UNWCC’s responsibilities. Instead, Lord Simon issued a tough denunciation of the Nazis generally, leaving it to the public to assume that the UNWCC would investigate the mass murder of German Jews.
In fact, however, these killings were not covered by the UNWCC mandate, at least not as far as the British Foreign Office was concerned. Only two days after the October 7 announcement, the secretary of the Jewish Aid Committee for Emigration in Zurich, Leon Rosengarten, wrote to the Foreign Office seeking clarification of Lord Simon’s statement. “Is it to be understood,” Rosengarten asked, “that cruelties and massacres of stateless persons who formerly were German, Austrian and Romanian Jews are included” in the new commission’s inquiries? The British reply was vague and noncommittal. The truth was that Eden’s Foreign Office staff regarded the UNWCC as a means of erecting procedural roadblocks to the actual prosecution of Nazis. Roger Allen of the Foreign Office staff commented in the internal correspondence spurred by the Rosengarten letter that this question was “surely too big for the Commission: it is nothing less than a question of indicting Nazi internal policy during the whole period of the regime. This is a political, not a legal issue, and should be dealt with as such.” It was “difficult to envisage an appropriate tribunal” for bringing Nazis to trial for crimes against German Jews, he continued. Further, because Jews did not represent a “separate nationality of their own,” as he put it, it would be inappropriate for Jews as such to be represented directly on the commission.30
By coincidence, it was at that moment that Adolf Hitler chose to again discuss the treatment of German Jews during a radio address. He was explicit: “In my Reichstag speech of September 1, 1939 [announcing the German invasion of Poland], I have spoken of two things: First, that now that the war has been forced upon us, no array of weapons and no passage of time will bring us to defeat, and second, that if Jewry should plot another world war to exterminate the Aryan peoples of Europe, it would not be the Aryan peoples which would be exterminated, but Jewry.…
“At one time the Jews of Germany laughed at my prophecies,” Hitler continued. “I do not know whether they are still laughing or whether they have lost all desire to laugh. But right now I can only repeat: They will stop laughing everywhere, and I shall be right also in that prophecy.”31
Berlin radio boasted about Germany’s “progress” in dealing with the Jewish Question, although the cover story remained that Jews were being deported for forced labor, not for extermination. The radio announced that western Poland would be “Jew free” by December 1942. The occupation government in Holland pledged to deport all Jews by June of the following year. The Germans had given Romania until December 1943 to remove all of its Jews, although, as a U.S. diplomatic report from London put it, “if the transportations go on at the present rate, the Romanian Government will have fulfilled its orders before then.”
“In all parts of Europe the Germans are calling meetings, or issuing orders, to bring about what they call ‘the final solution of the Jewish problem’,” Ambassador Winant cabled to Washington.32
Meanwhile, Polish intelligence operatives working out of Switzerland provided a remarkably detailed accounting of the extermination and slave-labor program based on their penetration of the Nazi Arbeitsampt (Labor Office) in Warsaw. “The most convincing proof” of the liquidation of the Warsaw ghetto, they stated, “lies in the fact that for September [1942], 130,000 ration cards were printed; for October, the number issued was only 40,000.” Polish sources in London also made public an accurate account of the deportations that specifically identified the death camps at Treblinka, Sobibor, and Belzek—the very existence of which were supposedly among the most closely guarded secrets of the Reich.33
As London and Washington manuevered, teams of Allied lawyers pieced together two activist committees that redefined the war crimes issue to cope with the unprecedented scope of Nazi atrocities. These were unofficial, semiprivate organizations, and their recommendations were not binding on Allied governments. Yet their work was crucial because it clarified the complex issues surrounding war crimes and established that as early as the summer of 1942, a number of influential jurists in Europe and the U.S. had concluded that the conventional interpretation of international law was not only ineffective against Nazi crimes, but actually provided an atmosphere in which they could prosper.
At Cambridge University, the long-standing, relatively conservative International Commission for Penal Reconstruction and Development established a committee to deal with the legal questions involved in putting Nazi officials and their collaborators on trial. Ten prominent European jurists volunteered for the task (seven of them would later represent their respective countries on the United Nations War Crimes Commission).34 The Cambridge group recognized that although an ordinary person could readily understand the importance of prosecuting a particular Nazi responsible for, say, the murder-by-starvation of a thousand Polish Jews, it was quite another matter actually to bring that German to trial in an organized system of justice. In addition to the challenges of collecting evidence and establishing culpability
that are part of any criminal proceeding, there were at least two more basic problems in any such case. First, there is the question of whether these acts violated any existing law; second, which court (if any) has jurisdiction to judge the alleged crime? These problems were particularly knotty in situations where the Nazis had “legalized” their acts of persecution by announcing laws and decrees that ordered deportations, compulsory labor, or seizure of property. Further, some mass murders of civilians appeared to be technically legal under existing international law, if the Germans could claim the killings came in response to guerrilla activities that had been specifically banned by the earlier Hague conventions.
The Cambridge Commission soon discovered that there was no clear authority for any court to try Nazis for many of the atrocities against civilians that had become the hallmark of German rule in the occupied countries. For example, after the war civil courts in the Netherlands could presumably try Nazis and their collaborators for conventional crimes such as murder, rape, or robbery that had taken place in the Netherlands. But the Cambridge group was not certain whether the Nazis’ deportation of Dutch Jews and Resistance fighters to concentration camps was actually against Dutch law, particularly since the Nazis had “legalized” such deportations as an emergency war measure. Dutch courts also might not have the necessary jurisdiction over acts that Nazis perpetrated against Dutch civilians outside of the Netherlands—such as those at slave labor centers or extermination camps in Poland. Even if the Dutch courts did have jurisdiction, it was unlikely that they could force German authorities to turn over suspects for trial.
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