[40]
This 'war to the finish', although virtually won by the Allies, was carried on for two more years, precisely because it could not be otherwise after the Declaration of Moscow.
And so on August 8th, 1945, the United States, Britain and Russia, whose company France had been permitted to join, full of all the bitter resentments that such a prolonged and merciless struggle had built up, met together in London as conquerors to draw up plans for the "pursuit and punishment of the major war criminals of the European Axis Powers" -- in other words, to draw the practical conclusions of the Declaration of Moscow.
Notice the shift in the formula. It was no longer a question of the Germans alone, but of the nationals of the Axis Powers, and no longer of the "officers, soldiers and members of the Nazi Party responsible for crimes, or who took a consenting part in their execution," but of "major war criminals" without further definition which, in the agreement in preparation, so broadened the field that the prosecution shifted from individual to collective punishment.
This agreement, which bears the signatures of jurists Robert Falco (representative of the provisional government of the French Republic), Robert H. Jackson (U.S.A.), Jowitt (United Kingdom of Great Britain and Northern Ireland), Iou. Nikitchenko and A. Trainin (U.S.S.R.), consists of seven points and says:
a) The establishment of an International Military Tribunal for the trial of war criminals, whose offences have no particular geographical location, to be charged as individuals, or as members of a group, or both. (Art. 1).
b) The return of other war criminals to the countries where their crimes were committed. (Art. 3).
c) For the latter, "national courts" already established, or to be established, will qualify. (Art. 6).
d) To be effective on the date of signature, this agreement "shall remain in force for the period of one year and shall continue thereafter, subject to the right of any signatory to give, through the diplomatic channels, one month's notice of intention to terminate it." (Art. 7).
Article 2 specifies that the "constitution, jurisdiction, and functions of the International Military. Tribunal shall be those set out in the Charter annexed to this Agreement" and which forms the "integral part." Article 3 of the Charter declares that "Neither the Tribunal, its members, nor their alternates, may be challenged by the Prosecution, the defendants, or their counsel." Article 3 of the London Agreement initiated a world-wide man-hunt by stipulating: "The Signatories shall also use their best endeavours to make available for investigation of the charges against the trial [41] such of the major war criminals as are not in the territories of any of the Signatories." And Article 5 states: "Any Government of the United Nations may adhere to this Agreement by notice given through diplomatic channels to the Government of the United Kingdom, who shall inform the other signatory and adhering Governments of each such adherence." Only nineteen countries took advantage of this stipulation: "Greece, Denmark, Yugoslavia, the Netherlands, Czechoslovakia, Poland, Belgium, Ethiopia, Australia, Honduras, Norway, Panama, Luxembourg, Haiti, New Zealand, India, Venezuela, Uruguay, and Paraguay, a total of twenty-three signatories out of the fifty-odd nations which comprised the world then. In Washington, twenty-five nations were represented on January 1st, 1942. In August 1945 the protagonists in this affair did not see that a comparison of these figures in itself constituted a censure in the minds of well-meaning people.
But the practical applications set out in Article 2 of this agreement, and contained in the annexed Charter, were no less strange. The strange can produce only the strange, and only more so. That the very idea of creating all at once a court, jurisdiction, and procedures, without any historical, legal or jurisprudence precedents, did not frighten the so-called civilised nations by its scope and sublteties, can only be explained by the fact that in the chaos of those years they had retrogressed to the level of inexperienced and uncultured peoples. It is a phenomenon related to the psychology of masses whose mental age is lowered in ratio to their numbers. Suffice it to say that the mass expressing itself in this instance, through a few of its members, was several hundred million strong.
What did this annexed Charter contain? First, here is the definition of the offences as set out in Article 6 of Part II of the Charter.
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participating in a common plan or conspiracy for the accomplishment of any of the following:
(b) WAR CRIMES: namely, violations of the laws and customs of war. Such violations shall include, but not be limited to, murder, ill treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in [42] execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.
These three principal charges were in reality four. In the list of charges, in fact, the first divides into two: into crimes against the peace, and conspiracy in the intention to commit them -- something like that which French law punishes under the heading of "criminal conspiracy." Doubtless the writers of this Charter wanted to make sure that the Prosecutors could establish premeditation, and introduce it under the title "aggravation." Thus, aggravation became in itself a crime.
The two other main charges were already part of the legislation, although summary nevertheless real, of the Hague, and later the Geneva Conventions. In case of war, as we have seen, the belligerents agreed not to act in any way that could be interpreted as unchivalrous, or as a criminal violation of the laws of humanity. For example, civilian populations were protected against bombardment, rape, and pillage; prisoners of war could not be used by the enemy either as soldiers or as workers in armament industries. The wounded were not to be killed or tortured; but no provision was made for franc-tireurs and spies. All that came under the heading "war crime." The Nuremberg Charter made a distinction between this and crimes against humanity, but that was an innovation of form only; the two things were thus distinguished by words, but not in fact.
In the interpretation and treatment of the texts each belligerent was accountable under pain of fine, to police its own ranks and prevent infractions. In practice, this theory, inherited from the personal combat of Knighthood, or the line battles of the Fontenoy type, which no one ever recognised could not be adapted to a confrontation on land, sea and in the air, by masses provided with modern, murderous armaments, was shaped into a standard scenario, good for all wars, and offering infinite possibilities to a propaganda machine designed to maintain the morale of combatants on either side of the firing line. The war, justified by mutual accusations of treaty violation, in spirit or in letter, continued, justifying itself by mutual accusations of crimes -- the Belgian child, the extermination camps, blanket bombing of civilians, Dresden, Leipzig, Hiroshima, Nagasaki, etc. When the war was ended, the world could think of nothing but getting something from the losers: the judgement of God in the modern form of a legal duel inherited from trial by ordeal.
The war which bred these crimes, on the whole minor, and which inevitably implicated them, was nevertheless not considered in itself a crime with inherent legal consequences -- the fate of the losers was considered to be within the competence of the political power of the victors. At the level of public opinion, they were the object of abusive sarcasm, indeed, of tribal demands for punishments aimed at their chiefs, but these manifestations revealed [43] more a need to relieve frustrations in mockery than an interest in vengeance. Political power was not to revert to the universally condemned ways of Julius Caesar strangling Vercingetorix in his prison, or of those feudalists of the Middle Ages who sent each other to rot in dungeons. And after that time it did not go beyond the punishment of exile, if, indeed, the losers did not go into exile of their own accord. In demanding that Kaiser Wilhelm II be handed over to the Allies to be judged as the one responsible for a war to which the idea of crime had been attached only because of its length, scope and unequalled ferocity, the Armistice Convention and the Treaty of Versailles -- which put an end to the First World War -- by creating a process for the jurisdiction of an exceptional court, had taken a step which neither the Treaties of Vienna of 1815 against Napoleon I, nor that of Frankfurt in 1871 against Napoleon III, had dared to do. But, in 1919, the intellectual level of the rulers had not fallen so low that this step could be taken, and it was renounced. Moreover, it should be noted that in 1919 a strong current of world opinion tended to embrace in the same reprobation the rulers of both the victors and the losers, of all the belligerents, and this came within an ace of triumphing.
Thus, if the Nuremberg Charter made innovations in matters of definition, it is only in connection with crimes against the peace coupled with the crime of conspiracy, with regard to its planning and execution (para. a) of Art. 6). But, from the moral as well as the legal point of view, the scandalous thing about this innovation was that it was presented in the form of a law, written for the first time, designed to punish offences, on various grounds, the most obvious of which, if not the most important, being that they had been committed before its promulgation.
The non-retroactivity of laws is, in fact, one of the sacred principles of our culture. And if our moral system holds that "ignorance of the law is not excusable," it is also claimed that where no law exists there can be no offence and consequently no punishment. Nulla poena sine lege, the universal conscience is still pleased with itself for having discovered in our heritage from the Romans this formula, which was the basis of their law and more than 2,000 years later, remains the individual's only, and very harrow, protection against arbitrary power.
The answer given to those with mental reservations was "Pure formalism; all of little import, since these people are criminals they cannot claim so much consideration." But, fifteen years later, the Eichmarm Trial, which was Nuremberg all over again -- but worse -- and which unfolded in an atmosphere of undeniable digapproval, showed more clearly that the problem of the criminal was far from being settled by the definition in the Charter, after the definition of the crime. Everything is linked together. It was self-evident that any objection would be useless. One could, in fact, have argued that at any rate the violation of an everyday rule of conduct, to the detriment of anyone, since it is admitted, [44] would create a precedent to legitimise the violation of all the others, and since the very essence of law is that it is the same for all, the criminal too, is entitled to justice, even purely formal. In this, furthermore, the form was one of the moral requisites recognised by the law, and itself constituted the basis of the legal problem.
It could certainly be said that five years of massacre, of Apocalyptic proportions, had so deeply confused men's minds that the best organised among them could not escape the common fate, and were no longer sensitive to moral requisites and principles. Doubtless this will be said, and with reason. But did the confusion have to be so deep that nearly everyone, including the elite, forgot these requisites, even in the realm of experience? For on this point, at least, history is full to bursting of criminals whom their descendants have refused to recognise and whom circumstantial jurisdictions disavowed the next day.
In a book which made a certain stir and brought its author his hour of fame, a great French teacher of his time, the philosopher Jean-Marie Guyau, who met too early a death (1854-1884), laid the foundation for a moral system which did away with duties and penalties and which, carried over into law, rendered totally useless, even harmful, "the judges, the rack, the gallows and the hangmen" mentioned by Molière.
Although J.-M. Guyau is almost forgotten today, at the turn of the century much was said and written about his ideas, sometimes stupid and abusive things. The anarchists, whose star was rising, immediately adopted him and not only the anarchists, but an important sector of liberal opinion, although only in principle. When President of the Republic Fallières, by systematically exploiting the droit de grâce (right to pardon) during his Septennate, practically abolished the death penalty, while Anatole France, whose aphorisms were not always happy, loudly proclaimed his support, as far as common law but not political right was concerned, many good people justified both in Guyau's name, but wrongly because that was an entirely different matter.
Be that as it may, it seems to me that the principal idea to be derived from this remarkable book is this: in not addressing the individual conscience, which is alone of permanent worth since it only can speak in term of justice, but in addressing the collective conscience, of which it is the expression, and which is concerned with circumstances and speaks only in terms of self-interest, the law is nothing more than a precept without fundamental bases, and respect for it, purely mechanical, can only be gained by force. However, to speak of coercion is to speak of revolt, and to speak of revolt is to speak of the relation of forces between society and individuals. What is grievous is that this relation of forces, which is forever defined and re-defined according to circumstances, being [45] in the end its only basis and only justification, the law removes little by little all the strictures of the conscience and leaves to circumstances the distinction between vice and virtue, the delinquent and the honest man, and the margin between them becomes morally non-existent.
And now we are back to the Nuremberg trial. The role of the individual was played by Germany in the persons of its de facto representatives -- since the rule still holds that Brutus must assassinate or eliminate Caesar, could a people conceivably have de jure representatives? The role of society was played by the group of associated nations who were indicting her, after having brought her to her knees. Therefore, it was entirely an affair of circumstances, and relations of forces. Who will deny, for example, that if the military outcome had been the other way around, the trial would have been conceived and carried on in the same way, but with the Allies on the bench of the accused and Germany in the judge's seat? If Hans Frank (writing in In the face of the gallows, published by his widow at Neuhaus near Chiemsee in 1955) is to be believed, Hitler had decided, once the war was over, to bring Roosevelt, Churchill, etc. to trial for "war crimes." There is no doubt that he would not have defined the crime with any more respect for form, nor punished the criminal any the less.
This criminal Article 6 of the Nuremberg Charter presents him in this way: "Leaders, organisers, instigators and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible..."
The first inescapable observation is that, if in the minds of the authors, this text refers only to Germans, which would represent so high a proportion of criminals in a people that reason would refuse to accept it, in its letter it does not refer only to Germans, thereby raising the figure to a world scale, even less admissible.
When, on October 18th, 1945, after the bill of indictment had been issued, the Tribunal met in Berlin in its first public hearing, to put the finishing touches to the preparations for the Trial, and those criminals had to be named whose crimes were "without geographical location," we find:
Hermann Wilhelm Goering, Rudolf Hess, Joachim von Ribbentrop, Robert Ley, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Punk, Hjalmar Schacht, Gustav Krupp von Bohlen und Halbach, Karl Dönitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Martin Bormann, Franz von Papen, Arthur Seyss-Inquart, Albert Speer, Constantin von Neurath, and Hans Fritzsche, [42] individually or as members of any of the Following Groups or Organisations to which they respectively Belonged, Namely:
Die Reichsregierung (Reich Cabinet); Das Korps der Politischen Leiter der Nationalsozialistischen Deutschen Arbeiterpartei (Leadership Corps of the Nazi Party); Die Schutzstaffeln der [46] Nationalsozialistischen Deutschen Arbeiterpartei (commonly known as the "SS") and including Der Sicherheitsdienst (commonly known as the "SD"); Die Geheime Staatspolizei (Secret State Police, commonly known as the "Gestapo "); Die Sturmabteilungen der NSDAP (commonly known as the "SA"); and the General Staff and High Command of the German Armed Forces, all as defined in Appendix B of the Indictment.
If one takes into account that the text also included accomplices, it was enough to have been a member of the SS, which numbered about 3,000,000 persons (accomplices of Himmler), or to the Hitler Youth with about 13,000,000 (accomplices of Baldur von Schirach), or to the Strength Through Joy organisation, which corresponded to our Friends of Nature, and had about 30,000,000 (accomplices of Ley), etc., you might as well say all of Germany, or very nearly all. Thus it was that since the crime had to all appearances become collective, collective punishment, before which all the moral thinking of the world, except in tribal custom, has recoiled in horror, was introduced into international law. And it was only after eight years of constant effort, in 1953, that M. Raymond de Geoffre de la Pradelle, world famed French jurist, succeeded in having it removed.
All of Germany, or nearly, I said. In fact, even after fifteen years, during which time the population has considerably renewed itself, there is still only a small minority of Germans who have not at least a close relative, if it was not they themselves, who has been tried in a de-Nazification court and sentenced, usually with a heavy fine. And it is enough to read the reports of the thirteen Nuremberg trials to realise that all of Germany was the object of the bill of indictment, and the Prosecutors' addresses to the court, and that it was Germany herself condemned by the judgements passed. It did not occur to the Prosecutors or the judges, or to anyone else, that to decide that 70 million people in a nation of 70 million inhabitants were guilty, was tantamount to saying that those 70 millions were innocent. If the concurrence of world opinion was obtained in such a verdict it would only be by surprise, and in any case, neither ethics nor history could unreservedly approve such a verdict.
Through which cracks in the wall of closed minds ethics and history opened a triumphal path will, without fail, be argued some day. Neither the materiality, nor the fact that they were produced under the pressure of political necessity, will ever be contested of two of them: Russia and Israel.
In fact it is Russia who gave the first blow of the pick-axe to the legal edifice so laboriously constructed at Nuremberg. In order to better justify her policy of isolating West Germany, she said that it was a den of Nazi nostalgics, of traditionally impenitent militarists, and of revenge seekers, at the disposal of the Americans. In order to profit by a show of contrast, she lifted the burden of guilt from the 18 to 20 millions of East Germans, by saying that they had [47] simply acted without judgement, that is, that they were innocent. It is clear that by the same kind of reasoning the West Germans could, in turn, become 50 to 52 million innocent people, and that by conceding that a sense of conscience is not noticeably more developed in the leaders of people than in the people themselves hardly disputable - even those who were hanged at Nuremberg would be no exception to this general formula for innocence.
Let us have no illusions. Those who come after us will surely decide that this is so. Even now, no one believes any longer that if the Nuremberg Trial were held over again the accused would be hanged. In his Nuremberg Diary, Dr. Gilbert, who was the "Psychologist" of the trial and spent a year studying the accused in their prison, and who, in that capacity, testified at the Eichmann trial in Jerusalem, describes them as in no way differing from the mass of ordinary people encountered on any street, at all levels of the social hierarchy. And he asserts that what happened in Germany could happen anywhere, that human nature could, in certain circumstances, furnish other examples of the acts of which they were accused. It could not be better put. A crime which can be committed by anyone anywhere, for which only human nature and circumstances are responsible, is not a crime. Or else we are all assassins and our judge is not among us.
The case of Israel is hardly different from that of Russia. Massed at the foot of a world-sized wailing wall, day and night for fifteen years, Zionists from all over the world -- all Israelis are not, happily, Zionists -- have cried unceasingly, every day more gruesomely, every day more agonisingly. The purpose is to publicise what they consider the true and apocalyptic proportions of the horror and the tortures the Jewish world suffered from Nazism, and thereby to increase the amount of reparations which the State of Israel receives from Germany.
This is a sordid affair of money. In 1956, when it was clear that the world was refusing to fall into step with the international Zionist movement in this enterprise, to make Germany an everlasting milk cow for Israel, a book by a certain Alex Weissberg called L'Histoire de Joël Brand, with the subtitle, Un troc monstrueux, un million de Juifs pour dix mille camions (The monstrous barter: 1 million Jews for 10,000 trucks) was published, which, in the light of paragraph c) of the definition of crime in the Nuremberg Charter, was a veritable bill of indictment against Britain and the United States, rightly considered by the Zionist movement as responsible for the failure of the enterprise. The blackmail was obvious. It was based, nonetheless, on solid grounds. Britain and the United States were untroubled.
Roughly, this was the theme: because she had opposed, even after 1933, the emigration of European Jews to Israel through application of the Balfour Declaration, more particularly because she had, in December 1938, politely got rid of Dr. Schacht who had been sent by Hitler to London to propose their transportation [48] en masse to Palestine, Britain should be declared co-responsible for their massacre. And all the more so because in 1944 she wrecked a proposal of Himmler's which would have opened the door to safety for a million Jews. The United States was responsible because they had in every case supported Britain's actions. France, too, was included, although more discreetly -- in 1940-41 she had blocked a plan to transport all the European Jews to Madagascar.
The enterprise which hung fire in 1956 was renewed in 1961 during the Eichmann trial, and in such terms that many people were led to question whether this was not one of the principal objects of this trial. Two things were announced to take place together: 1) Joël Brand, the principal actor surviving the deal to exchange 10,000 trucks for one million Jews, appeared on the witness stand, with hitherto unpublished documents of conversations concerning that deal, which amounted, in fact, to a violent indictment of Britain and the United States, 2) and a private trip that M. Ben Gurion was to take incognito "to France and to Canada, a trip he would take advantage of to pay an official visit to London, from Paris, and to Washington from Ottawa." (Newspapers, May 24th)
At that time, the pretence in the plan was pointed out. Rather than Paris and Ottawa, were not London and Washington the real destination of M. Ben Gurion's trip, where he wanted to make a bargain for his silence?
Britain and the United States were no more troubled than they were in 1956. M. Ben Gurion was invited neither to London nor to Washington, nor was the snub overlooked.
On the stand before the Jerusalem Tribunal, Joël Brand unwrapped his package on the 29th and 30th of May. The Prosecutor raised the bid, and, so as not to create any jealousy, brought Russia in too, a propos of a bombardment of the Auschwitz "gas chambers" which the Jewish leaders in Palestine in 1944 had requested, and which Russia, too, lining up with Britain and the United States, had said was "impossible for technical reasons." How, indeed, could the gas chambers be destroyed by aerial bombardment without annihilating at the same time many if not most of the prisoners in the camp, Jewish for the most part?
This sort of argument, moreover, offers no loophole. Had the Allies deferred to the request of the Jewish leaders in Palestine, they would today be accused of having aided Germany in the extermination of the Jewish people under the fallacious pretext of destroying the gas chambers, an operation they would have bungled -- intentionally their accusers would say -- just as they failed in so many other of their objectives throughout the war.
Now we are at this point: while Germany is indirectly cleared through a false step on Russia's part, a wrong move on the part of the international Zionist movement and the State of Israel puts the Allies, the judges, on the bench of the accused with the Germans. We will return to the first of these mis-steps. Of the [49] second, one could deplore the fact that it hinged on blackmail, and that it includes worthless arguments, although on the whole, and with regard to the Nuremberg Charter, it comes to amply justified conclusions. Of both, it can only be said that they are complementary in that they together and perhaps unwittingly reopened the door to the proposition that all the belligerents in aII wars are collectively responsible, a view world opinion regarded favourably right after the war of 1914-1918.
However comforting this result may be, it must not make us forget that this idea of the responsibility of the Allies was circulated by Israel and the Zionist movement only in connection with crimes against humanity (paragraph c. of Art. 6 of the Charter), Germany remaining solely responsible with regard to paragraphs a. (crimes and plots against the peace) and b. (war crimes).
If it is also possible to apply these other two paragraphs to the conduct of the Allies during and before the war, it is on the answer to this question that the historians verdict depends.
An examination of the indictment of crimes and plots against the peace will revive in its pitiless materiality the whole chain of events from 1919 to 1939.
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