Sentence First! Verdict Afterwards

Queen of Hearts: Now... are you ready for your sentence?

Alice: Sentence? But there has to be a verdict first...

Queen of Hearts: Sentence first! Verdict afterwards.

Alice: But that just isn't the way...

Queen of Hearts: [shouting] All ways are...!

Alice: ...your ways, your Majesty.

Alice in Wonderland

Advance to Barbarism, FJP Veale

Veale concludes his examination of the return to barbarism in war with the Nuremberg Trials that followed Germany’s defeat in World War Two.

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. (Emphasis added)

When considering the vaunted trials of Nuremberg through the lens of today, these seem as nothing terribly abnormal: the loser pays a price, war is hell, etc.  That the loser pays a price for actions no different than those taken by the winner I understand seems unfair.  But the idea that the loser pays a price – in this case, the trial of the military leaders – doesn’t seem out of place.

Veale, however, places this in context, and in the context of the brief period of two centuries in Europe where war was fought in a relatively civilized manner – the root of civilized warfare being that non-combatants were not to be targets of wartime violence.  The violations build, culminating in the bombing of civilian targets and now this concept of war-crimes trials – and more specifically, the method by which this process was put into practice in Nuremberg.

To the savage mind the natural and proper way to deal with a captured enemy in one’s power is to kill him… 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.

So why a trial?  Why not just do the losers in? Why not just publish a list of the wanted, and get on with the executions?  To answer these questions, an examination of the views of the leaders of the Allies is necessary as is an examination of the make-up and structure of the trials.

It would have been an easy matter to have created an impartial court….

There were many neutral countries, all with individuals who were highly qualified as jurists: Switzerland, Sweden and Spain are examples.  Instead, the jurists were drawn from the victors – the United States, Britain, France and the Soviet Union.

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….

Further, neutral jurists would have followed the evidence brought by the accused that pointed to the similar actions of the victors – the actions for which the accused were under trial.

But the process had one advantage – it minimized the friction between and amongst the victors.  It resulted in trials for which the Queen from Alice’s Wonderland would have found satisfaction: the captured were sentenced from the outset; all that was left was to reach a verdict that conformed to the sentence.

…the war-trials were initiated as a compromise between two entirely irreconcilable points of view.

This irreconcilable situation was first introduced by Stalin in Teheran in 1943.  According to Elliott Roosevelt:

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.”

Within much of Eastern and Central Europe, Stalin did not require the agreement of his allies to put his desires into action (Stalin admitted as much when Elliott suggested that many of the 50,000 would be killed in battle).  But such was necessary in the areas controlled by others.

Churchill, “remembering he was a European,” did not respond in kind:

“The British people 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!”

Roosevelt, apparently trying to find compromise, suggested that 49,500 might be a reasonable middle ground.

In this exchange can be found the beginnings of the framework of the trials in Nuremberg: Stalin had in mind summary executions; Churchill proposed trials first – and very possibly had in mind fair trials (I suspect Churchill felt that the Germans could get “fair” trials under British prosecutors).

Churchill’s account of this episode, offered six years later, was substantially similar; Veale notes one difference: whereas Elliott Roosevelt used the phrase “war criminals,” according to Churchill, the phrase used by Stalin was “officers and technicians” on whom “Germany’s strength depended.”

Veale notes that “Churchill’s version is greatly 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…what Stalin proposed…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 of Katyn, were members of a class which was unassimilable by Communism.

Churchill’s recollection is consistent with how a Marxist would frame the proposal, the “liquidation of political opponents,” according to Veale.  Churchill would understand this; Veale believes it reasonable to assume that Elliott Roosevelt might not understand communist ideology as well as Churchill did, therefore he would have assumed the discussion was regarding “war criminals.”

Nevertheless, these two accounts agree substantially on the main points – and on these points can be found the roots of the idea of war-crimes trials after the war.  To Stalin, as long as the trials would ensure liquidation in the end, he would go along with trials as cover for the Western allies.

The rules of the trials, therefore, were stacked against the defendants – rules perfected in the mock-trials of the Soviet Union: the charges would be heard by a tribunal composed of members of the four victorious powers, the prisoners were to be debarred from challenging the jurisdiction of the tribunal to try them, and during the trial the rules of evidence were to be suspended (only for the prosecution, needless to say). 

While reading Veale’s account of the trials, consider that Germany was required, by treaty, to respect in every way the judgments from Nuremberg.  According to Gerd Schultze-Rhonhof:

In the Transition Treaty (Überleitungsvertrag) of 1954, Article 7 (1), it is bindingly laid down that “all judgments (Urteile) from the Nuremberg Trials “remain valid and effective in every regard according to German law and are to be treated accordingly by German courts and authorities.”  Included, as an integral part, in the text of the judgments of the main Nuremberg Trial of 1946 is an exactly 200 pages long account of the German war and pre-war history from the perspective of the Soviets, the Americans, the British and the French….this account of “German history” from the victors’ perspective was recognized by the (German) Federal Government as “in all respects valid and effective” (rechtswirksam und rechtskräftig) and thus binding for German courts and authorities.

Another feature drawn from the system perfected by the Soviets – there was no necessary connection between a man’s arrest and the charges against him.  After the war Stalin wanted a purge, Churchill wanted at least the appearance of dignity.  The Soviet system, given credibility via western jurists, offered a solution to these two agendas.  The show-trials conducted during the Great Purge would be adapted to fit this western requirement.

The London Agreement of 8 August, 1945, was the result of the discussions between and amongst the jurists of the four Allies.  According to Veale:

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 geographic 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.

The Agreement, in Article 6, created two new crimes against international law:

“Crimes against peace,” which it defines as “planning, preparing or waging a war of aggression or a war in violation of international treaties.”

“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.”

Regarding the first of these two, the prosecutors gave up any hope of developing a definition for “war of aggression,” as every definition would condemn Russian actions as well.  Regarding the second, once again a precise definition could not be possible – for example, at that very moment the Allies were carrying out mass deportations of some fourteen million people.

This is to say nothing of the fact that laws were invented to be applied to acts allegedly committed before the law existed.  Veale cites Robert Taft: “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 Agreement empowered the Tribunal “to rule out irrelevant issues and statements of any kind.”  Thus any evidence could be thrown out merely by declaring it “irrelevant.”  For example, German Grossadmiral Raeder, charged with planning the invasion of neutral Norway, was precluded from calling into evidence that Britain, at precisely the same time, was planning to do precisely the same thing.  The point was deemed “irrelevant.”

Clause 19 released the Tribunal from any obligation to enforce “the technical rules of evidence.” …the Tribunal was directed to accept hearsay evidence.

The London Agreement was designed primarily for one purpose – to give Stalin what he wanted while giving Churchill and Roosevelt cover.

Whatever shortcomings may now be obvious to everyone in the London Agreement, it cannot be denied that the procedure which it had 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.

The purpose of the trial was clear to the Soviet participants – after all, could they deliver any verdict other than the one demanded by Stalin in Teheran?  Veale suggests that this issue was not immediately readily apparent to their British counterparts even though it was obvious the cards were stacked against the defendants by the rules of the agreement reached in London.

One of the first examples that forced consideration of the political nature of the trials was when the Communist prosecutor presented the “evidence” regarding German culpability for the Katyn Forest Massacre.  (As an aside, consider the prevalence of “sentence first, verdict afterwards” in the Soviet mind as demonstrated by the audacity of this act.) 

Lord Justice Lawrence faced a dilemma: knowing that the Germans were not guilty of this crime, had he found the defendants not guilty, by implication the guilt would be placed on the Russians – “since clearly these Poles could not have committed suicide and then buried themselves in a mass grave.”

How did Lawrence work his way out of this dilemma?

When the time at last arrived to deliver judgment, Lord Justice Lawrence with unshakeable 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 Tribunal was delivered on October 1, 1946. 

The principal charge against the accused was the commission of the newly invented crime of planning and waging a war of aggression, to which all the other charges were ancillary.

They did this despite never having defined “war of aggression.”  How could they, when for every German invasion of Poland, the Soviets had their Finland?  For every German bombing of London, the British and Americans had a Dresden?

The Tribunal was unanimously agreed that whatever this offence exactly might be, it was a very grave offense.

Perhaps the “crime” of which public opinion felt Germany most guilty was the bombing of civilian populations.  Of course, nothing of this could be mentioned in the trials – not after the Allied campaign culminating in Dresden.  If the victors so openly committed an act, it could not be a crime.  As the victors’ bombing of civilian populations was undeniably well-known, this same act could not be a crime to charge against the Germans.

The definition of a war-crime, at least during the eighteenth and nineteenth centuries in Europe, was somewhat clearer.  It was based on the principles of civilized warfare, as outlined by Veale:

…this code was based on one simple principle, namely that warfare should be the concern only of the armed combatants engaged.  From this follows the corollary that non-combatants should be left entirely outside the scope of military operations.

From this starting point, other rules flow.  However, this could not do at Nuremberg – the only key differentiator between the actions of the Germans and those of the Allies was that the Germans lost.

Therefore the Allied powers and the Tribunal needed to fabricate a contorted definition:

First and foremost, the punishment for a “war-crime” he must be a citizen of a state on the vanquished side.

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 all of the preceding into account, Veale fashions what appears to be the working definition of “war crime” for the Allies and the Tribunal:

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.

Veale avoids going into detail regarding the twenty-one cases, instead focusing on one trial as an example for the rest – the trial of the aforementioned Grossadmiral Raeder.  He was charged with planning the invasion of Norway – which he did not deny.  Instead, his defense was that the purpose of this plan was to forestall the planned British invasion of that same country at the same time.

As the victorious powers were, by definition, incapable of committing war-crimes, Raeder’s defense was meaningless to the Tribunal; they could not hear any evidence against the Allies, as the Allies – by definition – did not commit war crimes!

Veale goes on to outline in some detail Raeder’s trial as well as the British plans for the invasion.  All in all, a thorough example of the hypocrisy behind this entire endeavor at Nuremberg.

With this, I conclude my examination of Veale’s book.  It is of great value in terms of offering perspective: while war is always a terrible act, the manner in which it was fought in Europe in the eighteenth and nineteenth centuries was much more civil. 

War was not always hell, at least not for the civilians and not for non-combatants such as captured prisoners during the war or enemy officers after the war.  At least not for a period of a couple of centuries in Europe.

Subsequent events have proven that the Advance to Barbarism by the West in prosecuting war is complete.