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A Pledge Betrayed
Part 3: What is a war crime?

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In forming the UNWCC, the British selected Sir Cecil Hurst as their representative. Hurst was legal advisor to the Foreign Office and sat on the Permanent Court of International Justice. The British asked both Washington and Moscow to select their representatives and proposed the American representative should be the chairman of the commission.

The State Department legal advisor, Green Hackwood thought the candidate should not be selected solely on the basis of criminal law but also on the bias of understanding of international geopolitics. Secretary Of State, Cordell Hull wanted Francis Biddle the US Attorney General to fill the spot. Biddle on the other hand rejected the position. After four months of internal wrangling inside the State Department, Roosevelt named his friend Herbert Pell to fill the position. Pell had served in the sixty-sixth congress as a representative from New York and as Americaís minister in Portugal and Hungary. Hull accepted the nomination despite Pellís lack of any legal background. However, others within the State Department immediately sat out to sabotage Pell and his mission.

Pell was unknown in England despite his earlier diplomatic service. An initial impression of him came from Ham Armstrong, a State Department official and was forwarded to London by J. Forester of the British Embassy in Washington. Forester had gained his information from. Armstrong charged that Pell was a disappointing political appointment and the man would contribute little to the commission. Forester then met Pell and concluded that he is not unintelligent but seemed set in his ways. The British embassy official believed Pellís knowledge of war crimes was slight although he had already seemed to have formulated certain fixed views on policy. He concluded that Pell believed that war criminals should be brought before an international tribunal but that the tribunal should not be bound by Anglo-Saxon rules of evidence. Further Forester stated that Pell believed there should be no appeal of sentences and that execution of those sentenced to death be carried out immediately after pronouncement of the verdict.

Following his appointment, Pellís relationship with the State Department grew more tense. The State Department actively sought steps to constrain whatever policies Pell wanted to take. By the time Pell departed for London, he had concluded that the State Department did not regard war crimes as a legitimate concern. Pell was surprised that not a single official within the State Department was responsible for dealing with war crime issues.

On October 20,1943, representatives from seventeen nations met in London to inaugurate the UNWCC. The Soviets were absent. The Dutch representative offered a view differing from the British view that the commission should be limited to investigating and recording evidence of war crimes. The Dutch proposed the commission should be actively involved in preparing the trials. The Chinese representative raised another troublesome point for the British. The Chinese wanted to include all war crimes dating back to the Japanese invasion of Manchuria in 1931. The British feared granting this request would open the door for the Czechs to demand investigations back to the time of the Munich agreement in which the British role was less than exemplary. Beyond a vote to establish the commission and choosing the location of the headquarters nothing substantial was accomplished.

The Soviets refusal to participate in the opening meeting did not deter Stalin from joining the Allies in a joint statement condemning German atrocities. On November 1, the big three signed the Moscow Declaration dealing with the punishment of war criminals. The document ended with the following words.

"Let those who have hitherto not imbrued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied Powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done. The above declaration is without prejudice to the case of major criminals, whose offences have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies."26

This statement was the only substantial agreement among the Allies concerning punishment of war criminals among the big three. Although its principles served as a guide for the Allies, it did nothing to bridge the differences to bring the Soviets into the UNWCC. The Soviets and the British would remain at odds over the British demand to include the Dominions, but not the various Soviet Republics. There were other obstacles to Soviet participation particularly the failure of the Allies to open a second front in 1942.

In mid-July 1943, the Soviet Union put eleven Soviet citizens on trial for high treason for assisting the German forces around the town of Krasnodar and their role in assisting the Germans in the liquidation of 7,000 people. Eight Soviets were sentenced to hang the remaining defendants were deported or sentenced to twenty years of hard labor. Moscow apparently wished to demonstrate its commitment to the punishment of war criminals and its desire for a joint policy. The Soviets held numerous German POWs including many believed to be guilty of war crimes.

Several weeks after the hangings the Soviet scholar Professor A. Farrin published an English version of War and the Working Class. This publication hinted at being the official viewpoint of the Soviet Union. The article divided war criminals into four classes. The first class included Hitler and his cabinet ministers. The second class included party leaders and the German Army Command. The third class was composed of the financial and industrial leaders. The forth group was defined as those that had benefited from the Nazi plundering such as those receiving stolen goods or those who exploited slave labor.

At Teheran, Stalin attempted to translate Farrinís principles into numbers. Only two weeks after the Teheran conference the Soviets put on trial three Germans and a Russian collaborator in Kharkov. The defendants were accused of using gas vans (vans in which the exhaust was pumped into the compartment holding prisoners), shooting of POWs and the execution of thousands of Soviet citizens. Once again, the trial also brought charges against the heads of the Nazi government. On December 19, the four defendants were hanged. American reporters that followed the trial were convinced of the guilt of the defendants and of the genuineness of the charges. They also thought the Soviets had been punctilious in observing legal proprieties.

The Khakov trial opened an old wound between the Soviets and London. The Soviets had always been in favor of immediate trials while both London and Washington wanted to wait until the end of the war before beginning trials. The desire to wait until the end of the war by Britain and the US was not unjustified. Both feared such trials could provoke retaliations by the Nazis against British and American POWs.

The Nazi government, within days of the trial, sought to drive a wedge between the big three by threatening to put POWs on trial for serious breaches of international law. In January 1944, information reached Washington of a protest by high military officers in Germany against any trials of American or British POWs in reprisal to the Russian trials. At the end of March, Germany published a statement saying that the preparations for trials of POWs for war crimes were well advanced. Britain and the US asked the Soviets to refrain from holding any more trials until after the warís end. Russia complied.

Just prior to the Teheran Conference, Churchill proposed a radical plan of summary executions of high-ranking Nazis accused of war crimes that were not limited to a particular geographic location. Churchillís plan was that the nearest officer of major general rank would convene a court of inquiry not for the determination of guilt but solely to establish identity. Once identified the officer would order his execution within six hours.

Churchill approved a short list of war criminals that would be subject to his proposal. The Foreign Office opposed his plan, as did the Soviets.

The Roosevelt administration was divided on the terms of post war Germany and war crimes. Morgenthau urged for a hard peace and broad war crime investigations. Secretary of War, Stimson, led a faction sympathetic to Germany. The military had prepared the booklet, Handbook of Military Government, which reflected the views of the top officials within the military favoring an immediate restoration of Germany. Many of the military officers thought we were fighting the wrong enemy and should be at war with the Soviets rather than the Nazis. Under pressure from Morgenthau, Roosevelt wondering how such a document came to be written and who approved it, ordered Stimson to have the booklet rewritten. Rooseveltís comments follows:

"It gives me the impression that Germany is to be restored just as much as the Netherlands or Belgium, and the people of Germany brought back as quickly as possible to their pre-war state. I do not want to starve them to death but as an example, if they should be fed three times a day with soup from army soap kitchens. That will keep them perfectly healthy and they will remember that experience all their lives. The fact that they are a defeated nation, collectively and individually, must be so impressed on them that they will hesitate to start a new war."27

Roosevelt further criticized the document during the Aug 28 cabinet meeting, in which he named Morgenthau, Hull, Stimson and Hopkins to a committee for determining the treatment of Germany after the war. Stimson was harshly opposed to the harsh treatment Roosevelt wanted for Germany. He passed on Rooseveltís request to rewrite the handbook to his aide, John McCloy, whom in turn passed it on to Murray Bernays. 64 Bernays was opposed to any action on war crimes until after the war ended. He feared reprisals against American POWs. Nevertheless in November 1944, Bernaysí ideas on prosecution of war criminals were presented to FDR in a memo from Secretary of War, Henry Stimson, and Secretary of State, Cordell Hull, entitled The Trial and Punishment of European War Criminals. It was Bernaysí work that provided the framework and legal theory behind the Nuremberg trials. Although Jewish, Bernays' own doubt over the reports and the inability to grasp the reality of the Holocaust played a role in his views.

On September 5 Morgenthau presented Roosevelt with a comprehensive memorandum titled Program to Prevent Germany from Starting a World War III. The memorandum soon became known as the Morgenthau Plan and called for complete dismantling of Germanyís industrial might and severe punishment for war crimes. Since, the State Department already had possession of documents indicting the Nazis were prepared to go underground and start a new war, Roosevelt had reasons to reject an easy peace with Germany.

Stimson was vigorously opposed the Morgenthau Plan and was soon joined by George Marshall and General Myron Cramer. Thus at the time when Roosevelt departed for the Quebec conference his administration had no set policy on the course of action for postwar Germany. Roosevelt left for Quebec without any senior aides. In Quebec, it soon became obvious to Roosevelt that Churchillís main focus was on postwar aid to Britain. Consequently, Roosevelt placed a call to his Treasury Secretary. Morgenthau then rushed to the conference, resulting in the Quebec conference concluding with agreement on the Morgenthau Plan for post war Germany.

Before the end of September, the press was leaked the contents of the Morgenthau Plan which, came under heavy fire. With only six weeks to the election, Dewey saw his chances for victory over Roosevelt improved. Dewey charged that with such a heavy-handed plan, Roosevelt was prolonging the war and America was paying for it in blood.

Roosevelt suspected persons within the State Department of the leaks to the press.

Leaks such as this one might have been nothing more than someone with a big mouth. The timing of the leak suggests politically motivation. However, Nazi documents captured after the war indicate that it may have been an integral part of Nazi planing. A directive issued by the Chief of intelligence Division of the German High Command, Admiral Canaris of March 15, 1944 part of which follows here casts a suspicious eye towards Nazi intrigue.

"There is great fear in the USA of Bolshevism. The opposition against Rooseveltís alliance with Stalin grows constantly. Our chances for success are good, if we succeed to stir up influential circles against Rooseveltís policy. This can be done through clever pieces of information, or by references to unsuspicious neutral ecclesiastical contact men.

We have at our command in the United States efficient contacts, which have been carefully kept up even during the war. The campaign of hatred stirred up by Roosevelt and the Jews against everything German has been temporarily silenced the pro-German bloc in the USA. However, there is every hope that this situation will be completely changed within a few months. If the Republicans succeed in defeating Roosevelt in the coming election, it will greatly influence American conduct of the war towards us.

The KO-leaders abroad and their staffs have innumerable opportunities of constantly referring to Rooseveltís hate policy. They must use in this campaign all the existing contacts and they should try to open new channels. We must point to the danger Germany may be forced to cooperate with Russia. The greatest caution has to be observed in all talks and negotiations by those who, as "anti-Nazis" maintain contact with the enemy. When fulfilling missions, they have to comply strictly with instructions."28

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The above document now casts all such leaks and reports in the press appearing in the later stages of the war as Nazi intrigue or propaganda. As shown in the previous chapters the Nazis had willing accomplices in Congress, the military, and the press and industrial leaders. The reader also should be alerted to the reference to that if the Republican Party could win the election they would alter the American conduct of the war. The previous chapters have detailed the collaboration between the Nazis and the Republican Party.

In the 1940, election Herbert Hoover had collaborated with top Nazis in Berlin in an effort to unseat FDR. Did the Republicans again collaborated with the Nazis in 1944 and offered them an easy peace for their support in the 1944 elections? The question for now must remain unanswered. However, laying in vault and probably marked top secret there is a document that can answer the question either yes or no definitively. There is no question however, that starting around 1944 or so that the media in the United States started to print many editorials and articles for an easy peace with Germany. Many of those no doubt were the direct result of the Nazi directive above.

In mid-December 1943, the Czech representative to UNWCC proposed it be resolved that the UNWCC was fully competent to handle all aspects of the war crimes tribunal and should not be limited to just examination of dossiers and the compilation of a list of war criminals. The resolution succeeded.

Up until the end of the war there was no accepted definition of war crimes. In the absence of an official definition of war crimes British treasury solicitor Tom Barnes, who headed the British National Office for War Crimes informed Hurst that he was unable to submit any cases of war crimes or names of war criminals because of that lack.

By mid-May, the committee suggested four categories of war crimes. The first was crimes committed for the preparation of war. The second, crimes committed in Allied countries against armed forces or civilians. The third included crimes committed against persons without regard to nationality, race, religion or political beliefs. The last category was reserved for those crimes perpetrated in order to prevent the restoration of peace. The committee failed however, to supply a definition of war crimes or to draw up an exhaustive list of war crimes.

One of the issues the committee failed to reach agreement on before the end of the war was whether a war of aggression amounted to a war crime. No vote was ever taken on this question by the committee. It wasnít until after the London conference of June 26-Aug 8, 1945 at the insistence of the Untied States that the UNWCC included waging an aggressive war as a war crime.

In its first five months of operation, the UNWCC listed only 70 cases of war crimes. Half of these were so incomplete that the commission could not make a determination, others were trivial. Not a single case at the time was lodged against any prominent Nazi leader. The main reason for the small number of cases was due to the difficulty of obtaining precise information from occupied territories while the POWs and labor camps remained in Nazi hands.

At the beginning of June 1944, committee chairman Hurst met unofficially with Eisenhowerís staff. Based on the conclusion of this meeting Hurst recommended an establishment of a war crimes agency attached to SHAEF. The Foreign Office sabotaged such a proposal and SHAEF formally rejected it.

In November 1944, Czech government decided to list Hitler as a war criminal. The British representative was opposed to such a listing until the German constitution could be examined. In December 1944, the commission presented a list of 712 names of German and Italian war criminals including the names of top Nazis such as Hitler, Himmler and 17 generals. In all 49, top Nazis were listed.

Perhaps the most contentious issue that came before the UNWCC was the Jewish issue. In August 1942, the Foreign Office and the State Department received a report from Dr. Gerhart Riegera a representative of the World Jewish Congress in Geneva, stating that plans were under consideration in Berlin in which all Jews in Europe would be deported and concentrated in the East and with one blow be exterminated. Both the Foreign Office and the State Department disbelieved the report and failed to pass it on. Reports of further atrocities against the Jews continued to pile up. The British Foreign Office believed the massacres of the Jews could not be considered a war crimes and sought to limit all war crimes to crimes committed against the citizens of Allied nations and then only after the date of the Polish invasion.

Almost immediately after beginning work in the UNWCC, Pell on his own initiative raised the question of crimes perpetrated by the Nazis against citizens of the Reich. His assistant from the State Department, Laurence Preuss opposed the proposal. Preuss in an effort to undermined Pell reported in an unofficial and confidential letter to the State Department Pellís actions. In fact, it was Pellís actions that served as a catalyst for the commission to include this issue. Preuss had also informed the Foreign Office the Pell was making dangerous mistakes. This issue of including crimes before 1939 against citizens of Germany was never adopted by the commission due to the actions of the British Foreign Office and the US State Department. In fact, the issue would lead shortly to the removal of Pell.

Another problem that plagued the commission was the type of court to use to prosecute war criminals. Pell informed the State Department that unanimous agreement had been reached on the treatment of war crimes conducted within a single country. In crimes involving more than a single country, Pell proposed that international authority should handle such cases. Pell also urged FDR to establish some machinery of justice that could act firmly and quickly.

Pellís proposal and initiative irritated Hull, who believed the commission should restrict itself to the collection of evidence. Roosevelt preferred a military court and conveyed that opinion to Pell. On February 1944, a subcommittee chaired by Pell began examining the question of an international court. On September 22, Pellís subcommittee formally issued the final draft on the Convention for Establishment of a United Nations Joint Court. The full UNWCC approved the draft on September 26, 1944.

In January 1945, Hurst submitted his resignation as a result of a dispute with the Foreign Office. The Foreign Office was well aware of the tireless and relentless efforts of Pell to bring the Nazis to justice. They feared Pell would be elected chairman as a replacement for Hurst. The State Department was likewise upset with Pellís criticism of inaction by State.

Pellís appointment had been a thorn in the side of Hackworth, the State Departmentís legal advisor from the very beginning. In December 1944, Hackworth informed Pell that the issue of an international court was an issue being considered by several departments: State, War and Navy. Hackworth emphatically refused Pellís request to attend meetings at which these questions were debated.

Hackworth already knew Pell would be removed as a result of Congressís decision to defund Pellís $30,000 budget. The State Department now headed by Stettinius following Hullís resignation proposed to FDR that Americaís representative on the UNWCC be carried out by an army officer. On January 9, 1945 Hackworth and Stettinis ignominiously sacked Pell. On January 29, 1945 the undersecretary, Joseph Grew came under attack by the press over Pellís dismissal. One reporter questioned the State Department's record in the Senate hearings on appropriations for Pellís office. The Senateís records indicted that Hackworthís assistant Katherine Fate, appeared before the Senate committee for funding Pellís position lasted less than three minutes. Once again, a dedicated anti-Nazi was removed by the invisible hands of the pro-fascists within Congress and the Department of State.

The removal of both Hurst and Pell in January 1945 from the UNWCC brought about strong press commentary on the collapse of the committee. However, the committee continued operations until March 31, 1948. In four and half years the commission had presented 80 lists containing the names of 36,529 suspected war criminals of which 34,270 were German. The UNWCC eagerness to advance preparations in dealing with war crimes was opposed vigorously by both the British Foreign Office and the US State Department. Both regarded the UNWCC as a political necessity to be exploited in neutralizing demands for reprisal by governments in exile. While the UNWCC committee was created with the noblest intentions in reality, it served no real purpose than to talk to death the crimes of the Holocaust. Certainly, it faced obstructionists from both the United States and Britain.