The Splendid Blond Beast

by Simpson, Christopher; Miller, Mark Crispin;

  The State Department had begun publishing Hackworth’s masterwork, an eight-volume Digest of International Law, in 1940.7 There, Hackworth sought to articulate all of the precepts of international law as he saw them, complete with thousands of case citations, excerpts from famous judgments, and an extended commentary. In 1943, just as the controversy over the legal response to Nazi crimes was coming into focus, the State Department published Hackworth’s volume six, on war and war crimes.8 In his text Hackworth presented the conservative consensus on international law. He embraced the legal status quo, reviewing dozens of complex arbitration cases concerning ownership of goods in occupied territories; the proper and improper uses of a flag of truce; the subtle differences between an armistice and a peace treaty insofar as they concern disputes over fishing rights; and hundreds of other technical aspects of international legal custom and precedent.

  Hackworth focused on what had long been the most active aspect of international law, the impact of war on commercial relations. This included subjects such as licensing companies under the Trading With the Enemy Act and similar legislation—John Foster Dulles’s specialty—and the complexities of determining whether a multinational corporation was a “foreign” company subject to government seizure. Throughout his presentation, Hackworth contended that as far as international law was concerned, modern war should be regarded as an interlude between periods of conventional commerce. The important thing was to maintain a predictable structure for commercial relations during a conflict (taking into account the inevitable military restrictions on trade, of course) and to establish an orderly procedure for picking up the pieces once the shooting had stopped.

  The concepts of a “crime against humanity” or of human rights were absent from Hackworth’s text. So was any substantial consideration of the possibility that the international community might justly hold a government responsible for atrocities against its own people. He saw heads of state as beyond the reach of international law. It is clear in hindsight that the Nazis’ extermination camps had rendered key elements of Hackworth’s work on war crimes obsolete at the time it was published. Nevertheless, Hackworth’s Digest (as the work came to be known) was embraced at the time as the definitive U.S. interpretation of international law.

  Herbert Pell had different ideas. He requested that a Hackworth rival, Sheldon Glueck of the London Assembly project, be appointed as his chief assistant and legal advisor for the UNWCC. Glueck was probably the most authoritative legal voice in the U.S. then arguing for tough measures against the Nazis. Hackworth rejected Glueck immediately, without explanation. Instead, he saddled Pell with Lawrence Preuss, a young university lecturer whose qualifications for the new post reportedly included a confidential agreement with Hackworth to channel derogatory information about Pell back to Washington.9

  Pell prepared to leave for Europe immediately following his appointment. At the last minute, however, the British government requested a delay of several weeks. The agreement with the Soviets for joint action on war crimes had come unraveled in the wake of the discovery of the Katyn massacre, and both sides were still attempting to patch things up before formally convening the commission. Pell was left cooling his heels at the Knickerbocker Club in New York, where he took up residence while waiting to depart.

  This delay stretched on for months, and Hackworth used the time to undermine and discredit FDR’s nominee.*10 More than a year had passed since Churchill and Roosevelt’s 1942 agreement on a war crimes commission, but the organization was still without a clear charter and had yet to meet for the first time.

  The Nazi offensive against the peoples of occupied Europe meanwhile continued to gather force. Himmler had decreed in the fall of 1942 that all Jews in concentration camps within Germany’s borders were to be driven out, resulting in mass deportations to the concentration camp at Auschwitz and to the pestilent Lublin reservation. The SS began gassing at Majdanek and then at Auschwitz, Belzec, Treblinka, and Chelmno. The extermination centers killed tens and even hundreds of thousands of people each month.

  The murder program accelerated in the spring of 1943. German troops entered the Warsaw ghetto and killed thousands of Jews in street fighting. In the south, the Nazis began deporting Greek Jews from Salonika to Auschwitz. In the north, they deported Dutch Jews to Sobibor, gassing about 34,000 people there as they arrived. The SS also arranged a special transport for 3,000 Jewish mothers and children from the Netherlands; they murdered all of them.11

  In June, Himmler formally ordered the liquidation of all Jewish ghettos in Poland and in the Nazi-occupied regions of the USSR. With this act, the last possible cover story for the Nazi genocide crumbled. Before, all Jews within Germany and its occupied territories were to be deported east, supposedly for labor and resettlement. Now the eastern territories, too, were to be made Judenrein—“cleansed of Jews.” There was simply no place left where the millions of deported people could be placed.

  Herbert Pell was still in the U.S. awaiting instructions to depart, and the State Department continued to reject reports of genocide in Europe. Pell met with Secretary of State Hull in August, but Hull seemed unable to change the situation. Pell then protested directly to Roosevelt. It was “time to get to work at once, to show the enemy we mean business.” An active war crimes commission would help “check at least some of the outrages.” He was eager to leave for London as soon as possible.12

  “Why can’t we get Herbert Pell off for London?” FDR wrote to Hull a few days later. “Is there any reason for the continued delay?”13

  Meanwhile, unbeknownst to Pell, the British had decided to go ahead with an organizational meeting of the war crimes commission without the Soviets. The Foreign Office cabled Washington twice in September asking that the meetings necessary for the actual formation of the commission begin by the end of the month. Both communiqués ended up on Hackworth’s desk: he kept them secret from Pell until months later.

  A new problem had arisen, as Hackworth saw things. Popular anger against Nazi atrocities was pushing the Allies into a more sweeping grant of authority for the UNWCC than had been contemplated in Eden’s narrowly worded declaration of the previous October. Hackworth’s vision of the commission was like Eden’s: It would conduct a study, hold a few hearings, prepare a report, and then fold up its tents without disturbing U.S. or British policy on war crimes issues. FDR’s decision to appoint Herbert Pell only made Hackworth more determined to keep the commission toothless.

  Even though the UNWCC had not yet met, the scope of plans for its operations gradually grew as Nazi crimes continued unabated. The British Foreign Office had from the beginning used the UNWCC as a shield to ward off criticism of its failure to pursue refugee relief, to open Palestine to Jewish immigration, or to take other measures to slow Nazi atrocities. As public protests became more desperate and pressing, the Foreign Office made increasingly inflated claims concerning the UNWCC’s on-paper authority to confront Nazi crimes. Finally, the Foreign Office had to push for a series of quick UNWCC organizational meetings to head off parliamentary criticism that the government had done little to stem atrocities.

  Hackworth’s apprehensions about the organization increased as fast as the group’s on-paper authority. “The plans now outlined by the British are quite different from those which the [State] Department apparently understood at the time that Mr. Pell was designated,” Warren Kelchner of State’s International Conferences Division warned Hackworth. Its potential impact on foreign affairs had increased well beyond the original expectations, he continued. What could be done about Pell?14

  Hackworth played for time. He quietly arranged for the U.S. ambassador in London, John Winant, to attend the first UNWCC meetings in Pell’s place. There were only two conditions: “Our representative [Pell] is not to become the chairman under any circumstances,” Hackworth cabled to London, and Pell was not to be informed of the gathering until after it was over.15

  The first UNWCC meeting took place on October 20, 1943, an
d consisted of formal introductions of representatives from the various countries and discussions of arrangements for future meetings. Ambassador Winant represented the U.S. There was no voice from the USSR. Herbert Pell remained in New York, unaware that the gathering was taking place.16

  The central purpose of the group, the UNWCC agreed, was to “investigate and record the evidence of war crimes,” identifying the individuals responsible for specific crimes whenever possible. The commission was then to report to the governments concerned the cases where there appeared to be “adequate evidence” for prosecutions—to serve as what amounted to an international grand jury for war crimes trials.17

  Pell soon learned of the meeting and descended on Washington in a fury. Hackworth was out of the office that day, but Pell cornered a junior assistant and gave him an earful. He glowered down at the young man and said he now knew of the earlier telegrams from London. He demanded to know when he would be given permission to leave and when he would be formally briefed by the department on his mission. “He [Pell] stated that in the absence of instructions, he would, should the occasion arise, act on his own initiative, and would use ‘a strong hand,’” the shaken assistant noted in his memo to the files about the confrontation.18

  Pell dismissed the narrow, legalistic approach to war crimes that was then, and would remain, the State Department’s official view of his mission. Instead, he linked his role on the commission to the broader issues of the war and to the unresolved question of what was to be done with Germany following the defeat of Hitler. Pell warned that German business cartels had been instrumental in Hitler’s rise to power and in the execution of the war, and unless this seeming monolith was dismantled, it would provoke yet another war after Hitler was gone. For Pell, a sweeping program of war crimes prosecutions of Germany’s economic elite was not simply a matter of justice, it was necessary to ensure the security of postwar Europe.

  “I believe that the business of my Committee will be to take its part in the great effort to prevent a third war, rather than merely to act as an instrument of vengeance for past wrongs,” he wrote to Secretary of State Hull in November 1943. “The first thing is to make it clear to every last German in the world that war is not a profitable business. Unless prompt and severe justice is done they will go back to their old ideas.

  “Five years after the end of this war, Germany, unless tremendously restrained, will be relatively far stronger than it has ever been in its history. Every other country in Europe has been bled white and will take anywhere from thirty to fifty years to recover. It is almost impossible to believe that Germany will be reduced to anything like that extent.

  “I hope that you want the War Guilt Commission [i.e.: the UNWCC] to go as far as it can and to be as tough as possible” in addressing this problem, he told the secretary of state.19

  Pell’s dispute with Hackworth was more than just a clash of personalities. Pell called into question a decade of Hackworth’s study and writing, challenged his interpretation of judicial issues, and defied his status as the principal American arbiter of questions of international law. Worse, Pell’s analysis had a certain compelling logic to it. That Pell’s disrespect could come from a man whom Hackworth regarded as an overbearing political appointee and a diplomatic naif proved to be reason enough for Hackworth to seek to engineer the unruly ambassador’s dismissal, regardless of what the President wanted.

  The U.S. war crimes commissioner returned to his temporary roost at the Knickerbocker Club in New York and from there booked passage to London on the Queen Mary, in those days traveling in camouflage paint and under an assumed name. He finally arrived in London in mid-December 1943, some fourteen months after the announcement of the UNWCC and a year and a half after its creation had first been approved by Churchill and FDR. In the interim, the Nazis had murdered at least two million people.

  As news of Nazi genocide accumulated in the West, the press, the Jewish community, and the emigré governments in London slowly pushed the British and U.S. governments toward an aggressive UNWCC capable of doing something—few were sure exactly what—about German atrocities. The UN commission was the only inter-Allied group that had specific responsibility for collecting evidence of Nazi crimes. Sophisticated observers knew that the commission was also the only logical place to resolve the unsettled legal questions concerning how to put Nazis on trial, particularly for crimes against refugees or against Jews in Germany.

  There was hope in many quarters that a strong, active war crimes commission could become an anchor for psychological warfare campaigns aimed at saving at least a few of those the Germans had slated for destruction. Of course, no threat is likely to have deterred the Nazi hard core from destroying Jews. Such Nazis embraced their own martyrdom on behalf of the Führer and the Volk. “All of us assembled here want to remember that we are on Roosevelt’s war crimes list,” the German governor of Nazi-occupied Poland, Hans Frank, boasted to a gathering of SS men shortly after an early Allied declaration against Nazi atrocities. “I have the honor of being at the top of the list. We are all accomplices in a world historical sense.”20

  At the same time, though, many other Germans and officials of the Axis satellite states were less committed to genocide. Indeed, some had second thoughts. “We have some dispatches to the effect that German officers in the Lowlands [the Netherlands and Belgium] are attempting to get ‘certificates of good behavior’ from the local inhabitants,” U.S. intelligence reported as early as the spring of 1943. “This is evidently inspired by the announced determination of the United Nations to punish those guilty of war crimes.”21 Apparently, these German officers were responding to Allied radio broadcasts denouncing Nazi atrocities, despite the weaknesses in the Allied effort and Germany’s draconian punishments for listening to foreign broadcasts.

  Equally important, strong public action by the UNWCC during the war would almost certainly arouse further demands from the citizens of Allied countries for substantial action against Nazi crimes. R. Borden Reams’s fear of such a reaction, it will be recalled, had led him to attempt to suppress news of the Holocaust.22

  Presidential advisor Adolf Berle and some members of the OSS became convinced that Allied psychological warfare stressing just and sure punishment for war criminals would slow the pace of Nazi crimes and undermine support for the Germans in Hungary, Romania, and other Axis states. But Green Hackworth used legal technicalities to spike the OSS effort—twice.23

  The British War Cabinet again confronted the question of whether to go ahead with a tough campaign aimed at deterring Nazi atrocities in the fall of 1943, when British forces discovered a new mass murder on the Greek island of Kos. German forces had arrested and massacred about 100 Italian military officers whom they feared might soon defect to the Allies. Winston Churchill seized on this news and, at the next meeting of the British War Cabinet, proposed that the Big Three issue a declaration at the upcoming Allied conference in Moscow pledging to pursue Nazi war criminals to the “uttermost ends of the earth.”24

  By late 1943, the fact that the Germans had embarked on a campaign of mass murder and persecution of unprecedented scope had already become clear. The Jewish, Russian, and Polish dead each already numbered in the millions. Yet Churchill focused on these 100 Italian officers. Why?

  Part of the reason can be traced to the war situation. The Allies had invaded Italy about one month previously. They had taken Naples, but much of the country was still in German hands. The massacre in Greece offered an opportunity to demonstrate the Nazis’ treachery against Italians, their one-time friends. Churchill’s firm response to the atrocity also sent a message that the Allies might be willing to treat former Axis soldiers with some lenience if they, too, abandoned Germany.

  Churchill was sensitive to the Soviets’ view of the war crimes issue, and he was eager to demonstrate a hard line for that reason as well. “I attach great importance to the principle that the criminals will be taken back to be judged in the countries or even the distric
ts where their crimes have been committed,” Churchill wrote to Eden. “I should have thought that this would appeal to U.J.”—that is, to “Uncle Joe” Stalin.25

  Here again, revelations of Nazi atrocities became an instrument of political warfare against Germany, and Churchill, at least, regarded it as an effective instrument. The proposed declaration, he said, would convince at least “some of these villains to be shy of being mixed up in butcheries now that they know they are going to be beat.”26 Churchill was an acute judge of German political culture: A threat from the Western Allies that suspected Nazi criminals would be sent back for judgment to the “countries … where their crimes had been committed”—which for many suspects meant to the Soviet Union—was a message that even the dullest SS man could not miss.

  Foreign Minister Anthony Eden remained unconvinced, however. “I am far from happy about all this war crimes business,” he wrote to his staff in October 1943. “I am most anxious not to get into the position of breathing fire and slaughter against war criminals and promising condign punishment, and a year or two hence having to find pretexts for doing nothing.… Our pledges,” he noted, were already causing “difficulty.”27

  The central question for each of the Allies at the upcoming 1943 conference in Moscow was how the struggle with Germany was likely to affect European affairs once the conflict was over. The answer to that turned to a surprisingly large extent on the symbolic and practical questions of what was to be done with Nazi war criminals. In the Soviet capital during late October and early November 1943, the three Allies’ foreign ministers reached new agreements on the terms of the U.S.-British-Soviet alliance against Germany and on joint Allied policy for postwar Europe.

  The foreign ministers announced their joint resolution in the Moscow Declaration on war crimes on November 1.28 Each major element of the Moscow covenants attempted to establish proofs that the Allies would not betray one another during the war. These included new commitments to jointly prosecute senior Nazi criminals, to inform one another of any Axis peace feelers, and to handle jointly any armistice discussions with the smaller Axis states such as Hungary, Romania, and Bulgaria. The United States and Britain renewed their commitment to open the long-delayed second front in Western Europe, and all three powers formally agreed to demand an unconditional surrender from Germany.29