Many types of Nazi abuses were almost certainly out of reach of civilian courts, the Cambridge group concluded. None of the Allied countries considered it proper to extend their national laws to offer protection to civilians inside Germany or the other Axis countries. As for international law, the prevailing conception of national sovereignty gave the governments of Nazi Germany and other Axis states virtually unlimited authority over their own populations. Jews and so-called stateless refugees in Germany, Austria, Hungary, Italy, and Romania enjoyed no real protection, under international law, from persecution by the governments of those countries. The same was probably true for civilians in Nazi puppet states such as Vichy France, Slovakia, and Croatia, though in those cases there was at least some grounds for legal debate.
Thus, Germans and German companies involved in forced labor inside of Germany seemed to be immune from prosecution, regardless of their depravity. True, German courts did have jurisdiction over crimes that took place inside Germany and over some types of crimes committed abroad by German nationals. But there was little hope at Cambridge that German courts would be capable of meting out justice in such instances.35
The possibility of using Allied military courts to try Nazi criminals presented other problems. The military courts of several of the occupied countries apparently lacked authority to try civilians at all, and in other countries they could try only those crimes that had a direct relationship to the military. Suspects who had abused Allied prisoners of war could be tried by a military court, but those who had abused civilian prisoners in the same prison camps might be out of reach.
Thus, the Nazis’ systematic persecution of Jews and others trapped inside Axis countries appeared to be “legal.” International law, as it then stood, seemed powerless to do anything. As a practical matter, almost any Nazis with the resources to hire competent legal counsel might be able to escape prosecution once the war was over, assuming they were captured and indicted in the first place.
Meanwhile, a second private committee attempted to articulate solutions to the problems that the Cambridge group had identified. This was the London International Assembly, a twenty-nine-member offshoot of the old League of Nations. Little is remembered of the London Assembly today, but in about a year’s time during 1942 and 1943, the group sketched out much of the legal and theoretical foundation for the work of the United Nations War Crimes Commission and for the international trials at Nuremberg. Many of the innovations in international law—and even in international affairs—that were formalized at Nuremberg were first fully articulated by the London group.
A number of its more prominent members were also members of the Cambridge group, including Justice Marcel de Baer of the Belgian Court of Appeals, the legal advisor to the French provisional government, René Cassin, and Minister of Justice Victor Bodson of Luxembourg. The U.S. member was one of the most distinguished criminologists of his generation: Harvard University’s Dr. Sheldon Glueck.36
The London International Assembly met in strict secrecy. Its purpose was to determine whether the activities of the Nazis that were then widely known—launching war in Europe, deporting civilians, and systematic persecution of people on the basis of race and religion—should be prosecuted as violations of international law rather than of the national laws of the various European countries. There were many related questions: Does international law apply inside of Nazi Germany and other Axis states? Should Nazis be acquitted if they had been acting under orders when they committed a crime? And what if particular actions—the summary execution of civilians who resisted German orders to evacuate their homes, for example—had been authorized by German law at the time they were committed? Was that, too, an “international” crime? For many people, the debates over these points might seem to be absurd technicalities when measured against the carnage that was then unfolding in Europe. But without answers to these questions, there was little hope that most Nazi criminals would ever be brought to trial.
In time, the London International Assembly put together a substantial legal argument. First, the group contended that the Axis decision to launch a war in Europe was an international crime—specifically, a violation of the Kellogg-Briand Pact of 1928, by which Germany and most of the Allies (though not the United States) had pledged not to wage war on one another. Next, the London Assembly came out firmly in favor of the creation of a new international criminal court to try not only those cases that were outside the jurisdiction of the national courts of Allied nations, but also cases involving crimes that had been “legalized” by the Nazis inside Germany. The new court’s proposed jurisdiction specifically included crimes committed against Jews and stateless persons. “[M]ere terminology or technicalities should not obscure the main issue,” the London Assembly argued. “Covering their crimes under a cloak of apparent legality should not help the Nazis escape justice.” The Assembly also helped pioneer the legal definition of what came to be called “crimes against humanity” by advancing the controversial concept that the men at the top of the German government who had “conceived and framed the plans of aggression, racial extermination, systematic terrorism, mass murder, deportations, economic looting … and the establishment of concentration camps” had violated such fundamental precepts of humanity that they could be put on trial on that basis alone.37
Next came the issue of the responsibility of heads of state for the actions of the countries they led. The prevailing legal doctrine, of which the United States had been the leading exponent, was that a head of state could not be put on trial in any international forum for the activities of his government, even if its actions had—as in the case of Hitler’s Germany—“disregard[ed] the fundamental laws of mankind.” Many experts contended that this de facto immunity for a head of state should be broadly interpreted: As some lawyers saw things, the field marshal of an army where war crimes had become routine practice could not be put on trial unless he personally ordered soldiers to commit them.38 The London Assembly unanimously rejected this mainstream interpretation. In another important departure from the conventional wisdom, the group found that leaders were indeed responsible for the acts of their subordinates.
Finally, there was the problem of transferring captured war criminals from one jurisdiction to another, commonly (but inaccurately) called extradition. The Assembly agreed that it was possible for war criminals to exploit “technical imperfection[s] in legislation” of the various Allied countries in order to find refuge, and that the formal extradition process was so slow and cumbersome that it could not handle the thousands of cases that an effort to prosecute Nazi criminals would inevitably involve. Therefore, the Assembly suggested, ordinary extradition should be reserved for ordinary criminal cases, while new procedures should be adopted to handle suspected war criminals. The Allied countries should formally agree to “transfer” accused war criminals to one another without the usual extradition hearings, while any peace treaty with the Axis powers should force them to turn over suspects to any Allied country.39
The Assembly’s conclusions were based in large measure on Sheldon Glueck’s writings and arguments. Glueck contended that international law should not be regarded as fixed and unchanging, nor should it be reduced to simply those measures that countries had previously agreed to by treaty. For one thing, technological advances in war-making had made obsolete many of the specific protections for civilians and soldiers written into earlier international treaties. Similarly, a criminal regime was unlikely to agree to treaties that made its own activities illegal. If the international community waited for criminal regimes to declare their own actions improper, there would be no international law at all.
Glueck contended that international law could be better understood as a body of commonly recognized practices that had evolved slowly over centuries and that was continuing to evolve. In this sense, international law could be compared with some aspects of English common law, which does not specifically prohibit murder, yet regularly does justice in murder cases
on the basis of legal precedent and custom. The basis for international law is not simply treaties, Glueck argued, but rather “moral law, the conscience of mankind and custom.”40 He stressed that technicalities should not be permitted to obstruct articulation of fundamental principles of justice, particularly in the case of Nazi war criminals. Yet, one problem was already evident: If action against state-sponsored atrocities was to be based on the conscience of mankind, who was to judge what that conscience might be, and on what basis?
Back at the State Department in Washington, Durbrow and Reams believed that they had put the lid not only on the new intelligence from Europe about Hitler’s genocide, but also on the British proposal for a joint Allied war crimes commission. The two men apparently believed that they could continue more or less indefinitely to respond to news of Nazi atrocities by filing it away. Durbrow tried to shut down reports of the Holocaust that were now beginning to arrive with disturbing regularity from American embassies in Europe. He targeted Switzerland first, where the information from the German industrialist Schulte had originated. He attempted to bar the U.S. legation there from using State’s telegraph network to send further messages concerning Nazi atrocities “unless, after thorough investigation, there is reason to believe that such a fantastic report has in the opinion of the Legation some foundation or unless the report involves definite American interests,” as Durbrow put it.41
But in late November 1942, Assistant Secretary of State Sumner Welles returned from a journey to Europe and confirmed to American Jewish leader Rabbi Stephen Wise that the evidence of systematic extermination of Jews was inescapable. It “confirms and justif[ies] your deepest fears,” Wise recalled Welles as saying; “there is no exaggeration.”42
That same evening, Rabbi Wise called a press conference in Washington. He reported that a presidential envoy had confirmed reports concerning the Nazis’ systematic execution of the Jews of Warsaw and their efforts to wipe out all Jews in Europe. Wise also stated that the Nazis were paying bounties for Jewish corpses to be “processed into such war-vital commodities as soap, fats and fertilizer.”43
R. Borden Reams at the State Department seized upon Wise’s chilling claims concerning human soap and fertilizer in an attempt to undermine the rabbi’s credibility. Within hours after Wise’s appearance before the press, the State Department issued a statement distancing itself from Wise and refusing to back up his contention that Hitler had begun to exterminate the Jews of Europe.44
Reams, Durbrow, and their counterparts in the British Foreign Office discredited and undermined each new report of Nazi atrocities. Shortly after the Wise press conference hit the news, the Foreign Office sent a note to the British news media acknowledging that the government was “soft-pedaling the whole thing as much as possible for the minute,” though they denied the media’s suspicion that the Foreign Office was trying to kill the story altogether. A corresponding series of later notes can be found in U.S. files, and they use remarkably similar language. There, State Department political officer A. E. Clattenburg confirms that the department’s press chief, Michael McDermott, made “suggestions and recommendations” to the United Press news service in New York “that atrocity stories be ‘soft-pedaled.’”45
But the story was out. In the wake of Wise’s press conference, there was a rush of public attention to Nazi atrocities, but there was little agreement about what should be done about them. The most obvious response—the rescue of European Jews, Romanis, Communists, and other Nazi victims—was also the least palatable politically, owing to fears in Washington and London of an anti-Semitic and anti-Communist backlash if Jewish immigration to the West increased.
Soon the British Foreign Office hit upon a plan of offering a tough verbal protest that would for the first time stress Nazi persecution of Jews. Like earlier measures, the intent here was to present the image of taking action against atrocities in order to avoid taking more substantial steps. The early drafts of the new protest were quite hard-hitting: The U.S., Britain, and the USSR each acknowledged that the reports from Europe “leave no room for doubt” that the Nazis were “now carrying into effect Hitler’s oft repeated intention to exterminate the Jewish people of Europe.” Poland, it was said, had become a “slaughter house [where] the ghettoes are being systematically emptied of all Jews … none of those that are taken away are ever heard of again.” The strongest among the deportees were worked to death, the draft declaration continued, while the weak were deliberately massacred or left to die of exposure.46
Reams again sought to block any official statement on the issue. “I have grave doubts in regard to the desirability of issuing a statement of this nature,” he argued in internal discussions. The atrocity reports were “unconfirmed” and based largely on the information from Schulte, he said. Publication of the protest as it stood would “support Rabbi Wise’s contention of official confirmation from State Department sources. The way will then be open for further pressure from interested groups for action which might affect the war effort”—an obvious reference to the growing demands for immigration relief. “A statement of this kind can have no good effect and may in fact induce even harsher measures toward the Jewish population.…”47
Reams intervened with the British Foreign Office as well. “No one questions that the Jewish peoples of Europe were being terribly oppressed and undoubtedly great numbers of them were being killed in one way or another,” he told his counterpart in London. But issuing a protest would be a mistake, because the U.S. and British would thereby “expose themselves to increased pressure from all sides to do something more specific to aid those people.”48 Better to say nothing at all, Reams contended, and if the British had no choice but to speak out, then better to say as little as possible.
The maintenance of official doubt concerning the reality of Nazi genocide seems to have been crucial to Reams in order to accomplish the European Division’s professional tasks, which consisted in important part of denying visas to Jewish refugees. He insisted that the phrase noting that there was “no room for doubt” concerning the Nazi extermination campaign had to be deleted. The problem, as he expressed it in memos, was that Jews (and others) would believe the reports of the genocide in Europe if this protest was issued, and would pressure their governments to do something about it. For Reams, the main problem was public protest in the West, not Hitler’s Holocaust in Europe. His comments on Schulte’s information are particularly revealing. For the State Department’s Jewish affairs expert, Schulte was the cause of most of the trouble, not the death camps. Reams made his point, and the U.S. version of the protest dropped the assertion that there was “no room for doubt” concerning extermination.49
The three major Allied powers finally issued their first formal protest against Nazi crimes against Jews on December 17, 1942. The three governments “reaffirm[ed] their solemn declaration to ensure … that those responsible for these crimes shall not escape retribution,” and that each state would “press on with the necessary practical measures” to track down and try Nazis.50
Despite this assertion, however, virtually all practical measures by the U.S. and the United Kingdom to end Nazi crimes or rescue refugees ground to a halt with the publication of the December 17 protest. The State Department’s Theodore Achilles was almost blasé about it: “In due course our Government will no doubt be asked to appoint representatives to sit on the [war crimes] Commission,” he told staffers in mid-December. But in the meantime, “no action is required.”51
* The term “United Nations” as it was used during World War II referred only to the Allied countries fighting the Axis. The modern international organization called the United Nations was formed after the conflict was over.
8
Katyn
Nazi atrocities helped shape the alliance against Germany, and did so in ways that Allied governments on both sides of the cold war have often preferred to forget. For the Soviets, war crimes policy became one of several “barometers” of Western commi
tment to the alliance with the USSR. Because Nazi atrocities had seriously compromised much of the top strata of German society and many technocrats and notables of a half-dozen other traditionally anti-Communist European states, Allied plans to purge Nazi criminals and collaborators from positions of influence in the wake of the war opened the door to fundamental changes in European society. The USSR’s relentless drive to destroy Nazism root and branch reflected a desire for justice, to be sure, but it was also a national security strategy that exploited the weaknesses of its opponents. Thus, the Soviets saw a hard Western line on Nazi crimes as an indication that the alliance with the USSR was solid. They interpreted Western waffling on this issue, on the other hand, as a warning that some new intrigue against the USSR might be afoot.1
There was more to this than Machiavellian politics. By early 1942, the Nazis had wreaked destruction in the USSR that went well beyond the understanding of most people in the West. They killed millions of Soviets, looted everything from machines in factories to the gold from the mouths of the dead, and destroyed all that they could not cart away. The Soviet public’s demand for harsh punishment of Nazis was deeply felt and would last for generations.
Premier Josef Stalin’s primary concern at the time was with the war, and he vitally needed the U.S. and Britain to fight it. But Stalin believed that a powerful, submerged faction of Western politicians and businessmen was manuevering behind the scenes to keep the U.S. out of the war or to reach a separate peace with the Nazis that would turn Germany’s full force to the struggle on the Eastern Front. Stalin was well aware of the utility of such separate peace tactics: His own 1939 pact with Hitler was an attempt to reach a similar deal with the Germans at the expense of the Poles and the British. Stalin saw that those in the West who favored a separate peace might be able to change the course of the war practically overnight. A separate peace early in the conflict could lead to the military defeat of the USSR; later in the war, it would almost certainly leave a bloody stalemate and a permanent crisis on Moscow’s western borders. Not surprisingly, then, the Soviets consistently pushed the U.S. and the U.K. toward tough public covenants requiring unconditional surrender from Germany and punishment for every senior Nazi. These Allied stands would almost certainly restrict Eden’s (and others’) ability to make deals with the Germans.
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