The Ruling Elite

by Deanna Spingola

  In late November, during Jewish Book Month, Columbia University Press published Lemkin’s 712-page book, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress. In the book’s introduction, dated November 15, 1943, Lemkin, a member of B’nai B’rith International, introduced the word “genocide,” which he compared to “homicide” and “fratricide.” The Division of International Law Publications of the Carnegie Endowment for International Peace, staffed by many who favored global war against Germany, long before it actually occurred, directly sponsored his work. The New York Herald Tribune Weekly Book Review, of December 31, 1944, applauded his book, as did dozens of other prestigious periodicals in both America and Britain, apparently employing organized unity. Reviewers praised this “indispensable” handbook for those who would be “responsible for initiating retributive justice,” and as the Christian Science Monitor phrased it, for those who would “bear the responsibility for dealing with the Germans” following the war. 1802

  Every nation involved in World War II committed war crimes and atrocities. On July 14, 1943, troops from the U.S. 45th Infantry Division slaughtered seventy-five German prisoners. General George S. Patton had instructed his soldiers to kill enemy soldiers who resisted within 200 yards of advancing United States soldiers regardless of any attempts to surrender. 1803 With the exception of what people refer to as the Malmédy Massacre, Germans generally did not mistreat American and British POWs. However, during the early stages of the Battle of the Bulge, SS Lt. Colonel Joachim Peiper’s men killed eighty-one American captives on December 17, 1944. Subordinates informed Eisenhower within a day and he immediately alerted the imbedded war correspondents who widely disseminated the story, “Germans are shooting POWs.” SS General Josef Dietrich later admitted, during just one of twelve Nuremberg trials that he told his soldiers to kill the American prisoners because of the thousands of victims of Allied bombing. They recovered their frozen bodies on January 13, 1945, almost a month later. 1804 On January 1, possibly in retaliation, United States guards at Chegnogne shot and killed about sixty German POWs. American officials did not punish anyone for this act but they would later incarcerate and try Pieper and many of his men for their actions. 1805

  The U.S. Government, which had already engaged in atrocity propaganda against Germany, combined with media to repeatedly employ and magnify the Malmédy Massacre. This, along with the military success of the Germans during the Battle of the Bulge (December 16, 1944-January 25, 1945) increased America’s growing animosity towards Germany. Certain officials utilized the heightened emotional impact that these killings had on the population to develop prosecution procedures based on a conspiracy/criminal organization. Shortly after the Malmédy Massacre, Stimson wrote in his diary, “It seems to be clear that their troops have been guilty of many violations of the laws of war against us.” 1806

  Lt. Colonel Murray C. Bernays, a Jew of Lithuanian origin, and a graduate of Harvard Law School, worked in the War Department where he evaluated war crimes. He criticized Herbert Wechsler’s plan under which it would be impossible to “convict a single member” of those who had “participated in the slaughter of our men, taken as prisoners of war near Malmédy, Belgium.” Therefore, exploiting the publicity about Malmédy, he then began developing an effective policy that would enable the United States to prosecute “Nazi war criminals,” something he and others had considered for months. Before learning all of the facts about Malmédy, Bernays and others promoted the idea that, the incident was not isolated but represented the “existence of a Nazi plan or conspiracy to dominate Europe (or the world) by using organizations such as the SS and the Gestapo to commit atrocities and spread terror.” War Department officials then began working on a draft based on Germany’s “purposeful and systematic conspiracy to achieve domination of other nations and peoples by deliberate violation of the rules of war,” those that the nations of the world have recognized and followed. 1807

  President Roosevelt would soon be leaving for the Yalta Conference (February 4-11, 1945), where he would meet with Churchill and Stalin to discuss Europe’s postwar reorganization and the treatment of the key Nazi war criminals. To prepare policy positions for Yalta, Judge Samuel I. Rosenman, the key legal adviser and presidential speechwriter, and a champion of the conspiracy/criminal organization proposal greatly influenced FDR’s war crimes policies. 1808 Rosenman, a leading member of the AJCm, was the first official White House Counsel and counseled both Roosevelt and Truman to a lesser degree. 1809

  On January 3, 1945, FDR, who had been procrastinating, finally had to address the war crimes issue. Herbert Pell, the American representative of the United Nations War Crimes Commission (UNWCC), was eager to collaborate on a policy with the State Department which appeared unwilling to define the American objectives and policies regarding the punishment of war crimes. Pell then wanted to meet with the president on January 9. In anticipation of that meeting, FDR and Rosenman devised a memo to send to the State Department requesting a report from Stettinius on the UNWCC and its stance on the punishment of Hitler and others. The memo included the following: “The charges against the top Nazis should include an indictment for waging aggressive and unprovoked warfare, in violation of the Kellogg Pact. Perhaps these and other charges might be joined in a conspiracy indictment.” 1810

  John J. McCloy, the Assistant Secretary of War, scheduled a meeting on January 4, 1945. Prior to the meeting, Bernays and one of his assistants revised the memo to include a very “elastic” interpretation of international law. They used the Geneva Convention, Geneva Prisoner of War Convention (1929), Hague (Rules of Land Warfare) Convention III and IV (1907) and the Kellogg-Briand Pact, along with “public conscience.” They also included the opinions of Hersch Lauterpacht, author of The Function of Law in the International Community (1933), and the ideas of Aron Trainin, a professor of criminal law at the Moscow State University, and the author of Hitlerite Responsibility under Criminal Law (London, 1945). 1811

  Trainin also wrote The Criminal Responsibility of The Hitlerites, published in Moscow in 1944 and edited by Andrei Vishinski who was the deputy state prosecutor of the USSR in 1933 and the procurator general of the USSR (1936-1938) and helped Stalin conduct the infamous Moscow Trials. Following the show trials, Vishinski accepted the position of director at the Institute of Law and quickly became the acknowledged leader of the Soviet legal profession. 1812 The Soviets, known for their extralegal measures and kangaroo courts, would soon assign Trainin, a subordinate of Vishinski, as one of their representatives at the London Conference.

  Those who attended McCloy’s meeting included Colonel R. Ammi Cutter, a Boston lawyer and McCloy’s assistant executive officer, Bernays, the key creator of the conspiracy/criminal organization plan, General John M. Weir, Judge Advocate General (JAG) of the U.S. Army and George Harrison, an advisor/friend of Stimson. Harrison was the de-facto head of the “Interim Committee” which drafted the American atomic bomb strategy. The objective of this meeting was to decide how to smoothly incorporate Bernays’ plan. Weir opposed the conspiracy/criminal organization scheme, saying that it would not allow the prosecution of prewar atrocities. After negotiating, they arrived at a consensus that McCloy could present the next day when he met with Rosenman. McCloy advocated making aggressive warfare an international crime which he ultimately abandoned to “the launching of the present war.” They worked hard to devise an acceptable memo for the next day’s meeting with Rosenman. 1813

  Rosenman’s meeting, on January 5, 1945, included people from the War, State and Justice Departments, along with FDR’s “special representatives,” Joseph E. Davies, a lawyer and the second ambassador to the Soviet Union, and, of course, Rosenman, who avidly promoted the conspiracy/criminal organization scheme. 1814 He convened an interdepartmental conference on January 9 to reach a consensus on the war crimes policy. Although the JAG representative opposed the conspiracy/criminal organization scheme, Bernays, McClo
y and Cutter held to that view. Wechsler, Green H. Hackworth, State Department Legal advisor, 1815and Rosenman “enthusiastically” supported it. At the conference’s conclusion, they gave the task of finalizing the memorandum to Bernays and Wechsler who Bernays had earlier converted to his plan. 1816

  On January 13, 1945, Bernays and Wechsler completed a five-page memo, a modified version of Bernays’ conspiracy/criminal organization scheme, in which they “chronicled Nazi atrocities and crime,” and on the “formulation and execution of a criminal plan,” committed by the various German organizations, especially the SS. This memo reiterated the idea of using an international tribunal, sanctioned by an international charter, to vigorously prosecute Germany for its “broad criminal plan of aggressive war.” Then, Bernays worked to gain additional support before completing the draft. Because McCloy and Rosenman eagerly championed his plan, officials in the other departments were also likely to accept it. Davies met with FDR after the meeting in Rosenman’s office. While Davies opposed the Bernays plan, he strongly supported the Soviet plan which was much tougher and legally innovative. FDR just wanted to destroy Hitler and his associates as quickly as possible. 1817

  Meanwhile numerous reviewers gushed about Lemkin’s credentials, his “wide scholarship” and identified him as “a noted Polish scholar and attorney,” allegedly an expert on international law, who had arrived in America shortly before the publication of his book which initially only appealed to a small, exclusive readership. Then, The Nation, with almost 40,000 subscribers, published a two-part article, The Legal Case against Hitler, on February 24, 1945 and on March 10, 1945, in which Lemkin summarized his book and introduced a “a new word”—genocide. Lemkin’s article provided a legal argument and the justification for a military tribunal designed exclusively against Hitler and all the German leaders. He wanted to arrest, incarcerate, and execute them because, he claimed, “The Nazis have destroyed whole nations.” 1818

  After his return from Yalta, FDR instructed Rosenman, who had been with him at Yalta, to visit with London officials to determine how the Allies were going to handle the German war crimes issue in conformity with the Yalta agreements. On April 5, 1945, John Simon suggested that they execute Hitler without any trial, along with Goebbels, Himmler and Ribbentrop. Lord Halifax told Stimson that there should be an international tribunal. In October 1944, Churchill had told Stalin that the Nazi high officers, when caught, “should be taken out and shot.” Then Stalin said, “We should give them a trial first.” After his visit to London, Rosenman decided that there should be a trial. 1819

  Simon, speaking for the British government, still favored execution without a trial. On April 25, 1945, Stimson, after a phone consultation with McCloy, insisted on official judicial proceedings against German war criminals. After FDR died, Truman supported Stimson’s International Tribunal blueprint which initiated the Nuremberg Trials. These trials affected the development of International Law, to expand and enlarge the World Court’s authority, which would ultimately supersede all national law. 1820

  Preparing for Nuremberg

  Before the Armistice, Britain appointed a commission to decide if Germany was in violation of certain laws, and to consider retributive actions. Although the Armistice of November 11, 1918 should have ended the Allied blockade of Europe (1914-1919), it remained until July 12, 1919, until Germany acquiesced to the Versailles Treaty. In 1928, statisticians calculated that the blockade caused the deaths of 424,000 German civilians from starvation and disease. The German Board of Public Health put the figure as high as 763,000 by the end of December 1918. 1821

  On January 25, 1919, at the Preliminary Peace Conference, officials established the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties consisting of representatives of the major Allied powers. On March 29, 1919, it claimed that Germany and her Allies had piled outrage upon outrage, represented by thirty-two classifications. Three sub-committees addressed these issues: 1) Criminal Acts to investigate war crimes allegations; 2) Responsibility and punishment for the War; 3) Blame for the Violation of the Laws and Customs of War with impending indictment for the commission of crimes during the war. 1822

  American representatives suggested that each country try the perpetrators in its own military or civil court. On June 28, 1919, officials presented the Versailles Treaty which contained the endorsements of the Committee of’ Fifteen, including Articles 228 to 230, provisions for the trial and punishment of violators. Germany convened a court at Leipzig. The Allies sent official observers to insure “a judicious administration” of the punishment. On February 3, 1920, the Allies gave German authorities a list of the names of almost 900 individuals that they wanted prosecuted. The Germans persuaded them that it would be inappropriate to try that many people, especially those that Germans considered heroes and reduced the list to forty-five, many of whom then lived elsewhere. 1823 The Allies threatened sanctions and accused Germany of whitewashing the war criminals. The Allies abandoned their interests in the court procedures. In June 1922, the Leipzig Court continued the trials without the Allied observers. In December, they tried ninety-three defendants but dropped the charges against the other 692 defendants. 1824

  The UN War Crimes Commission, during World War II said that the problems with the trials were due to a failure to apply Articles 228-230 of the Versailles Treaty. The Allies were no longer united and the American delegates opposed the trial of Wilhelm II. The commission pointed out that the world, in 1919-1920, was not “internationally mature to understand the consequences of a failure to ensure the respect of the provisions of the Treaty.” 1825 In February 1920, the League of Nations appointed a committee to prepare plans for the establishment of the Permanent Court of International Justice, as indicated in Article 14 of the Covenant. Officials in Geneva accepted the statute on December 13, 1920. 1826

  After World War I, the Executive Committee of the American Jewish Congress (AJC), founded in 1918, composed of Jacob H. Schiff, Louis Marshall, Rabbi Stephen S. Wise, Julian Mack and Abram Elkus, unsuccessfully attempted to convene a World Tribunal to impose war guilt on Germany. 1827 According to The New York Times, June 1, 1920, the AJC, what the Times called “the most important Jewish organization in the whole world,” with commissioners from various parts of Europe, intended to create a Jewish World Tribunal. Dr. Joseph Bloch, from Vienna, declared that the Jews of the world expected the Jews living in America to stop the persecutions that they had experienced in the past. 1828

  In 1934, Henry Morgenthau Jr. asked Robert H. Jackson to be the General Counsel of the Bureau of Internal Revenue. On January 18, 1940, Roosevelt appointed him as the Attorney General and on July 11, 1941, FDR appointed him to the Supreme Court. Jackson had graduated high school, clerked in a New York law office, attended one year of law school, apprenticed in a law office for one year, then passed the bar. On April 26, 1945, Truman asked Judge Samuel Rosenman to invite Jackson to be the Chief of Counsel at the Nuremberg Military Tribunal. Rosenman thoroughly instructed him on the court procedures, perhaps even the information regarding what the court should accept to prosecute the prisoners. The War Department had collected an “extraordinary amount” of photographic and other materials to use in this “open-and-shut” case against the accused. 1829 Jackson also received instruction from Polish-born Nathan Perlman, a justice of the Court of Special Sessions of New York City, and a senior official of the AJC. In addition to the AJC, he was also the vice president of Beth Israel Hospital and a trustee of the Federation for Jewish Philanthropic Societies. 1830

  On April 29, 1945, Jackson wrote his acceptance letter to Truman. He expressed his concerns about prosecuting the case in behalf of the United Nations because the Soviets intended to present some evidence based on confessions extracted through torture. Truman had Rosenman send his two advocates, Lt. Colonel Murray C. Bernays and Herbert Wechsler to visit Jackson in order to placate him. Wechsler was the Assistant Attorney
General and an international lawyer. They had already prepared an Executive Order (9547) for Truman to sign, dated May 2. They also gave him a copy of Punishment of War Criminals dated April 28, representing the views of the foreign ministers from each of the United Nations. They would meet in San Francisco to authorize the Tribunal and set the legal procedures. Rosenman took the new agreement to San Francisco. Secretary of State Edward Stettinius presented it to Vyacheslav Molotov, the Soviet foreign minister and Anthony Eden who agreed to sign the document that favored a trial for the war criminals. 1831

  On May 2, 1945, six days before the war officially ended in Europe, President Harry S. Truman signed that Executive Order appointing Jackson to prepare and prosecute “charges of atrocities and war crimes against each of the leaders of the European Axis powers.” 1832 On May 4, Raphael Lemkin, who was working as a consultant for the War Department, wrote a letter to Jackson, inclosing a copy of Lemkin’s recent Free World magazine article entitled Genocide—A Modern Crime. Lemkin also referred Jackson to his book, Axis Rule in Occupied Europe (1944) published by the Carnegie Endowment for International Peace. Lemkin mentioned that his book included war crimes evidence. 1833

  Jackson borrowed a copy of Lemkin’s book from the Court’s Library and kept it for over a year, taking it to London and to Nuremberg where he could access it during the tribunal. Jackson’s secretary, per his instructions, responded to Lemkin telling him that he had read the article and thanked him for telling him about the book. Jackson quickly adopted his hypotheses and analysis regarding the criminal prosecution of the Germans. The War Department received an advance copy of Lemkin’s book which functioned as Colonel Bernays’ foundation for his conspiracy/criminal organization plan. Bernays sought to prosecute the NSDAP leaders and their organizations in front of an international tribunal for conspiracy. Initially, Secretary of War Henry Stimson approved of Bernays’ plan while Secretary of State Cordell Hull and Attorney General Francis Biddle later sanctioned it. President Truman appointed Jackson based on his acceptance of the Bernays conspiracy plan which then became Jackson’s proposal for the London Agreement, culminating in the International Military Tribunal at Nuremberg. 1834