Kerno’s claim that the records had not been submitted to judicial process was actually “blatantly false,” noted historian Alti Rodal, who was the first to bring Kerno’s action to public attention. “In fact, this was the primary task and competence of the UNWCC’s Committee I.… Throughout, the Committee insisted that only crimes of ‘reasonable importance’ be examined. Chairman Hurst, whose distinguished legal career included a period as judge on the International Court at The Hague and service as a legal advisor to the Foreign Office, took pains to insure that evidence and allegations presented by the exiled governments was judiciously tested before each individual name was listed [in UNWCC files]. This is in stark contrast” to Kerno’s assertion, Rodal points out.28
It would be impossible today to fully reconstruct the motives behind Kerno’s decision, of course. But the information that has come to light recently is enough to raise troubling questions concerning his impartiality, because Ivan Kerno was a clandestine U.S. agent during his years on the staff of the United Nations. He first encountered Allen Dulles at least as early as 1919, as it turns out, when both served on the Czechoslovak Boundary Commission that drew the borders of the new Czechoslovak state at the Paris conference.29 Kerno spelled his name “Krno” in the traditional Slovak form in those days, and he became Dulles’s entree to Czechoslovak president Eduard Beneš, with whom Dulles forged a lasting relationship. Kerno went on to become Czech delegate to the Reparations Commission and to a reasonably accomplished career in the Czech diplomatic service. His activities during World War II remain murky, but heavily censored records released by the State Department and FBI suggest that he may have worked with the OSS or British intelligence on behalf of the Czech government-in-exile in London. Posted to the new United Nations after the war, Kerno became an informant and intelligence contact for the U.S. State Department and FBI at the time of his ruling blocking the UNWCC records, according to U.S. files obtained under the Freedom of Information Act.30 Many of Kerno’s contemporaries who knew his position and background believe he spied for the CIA as well. Kerno eventually defected to the United States in 1952 and became active in the Committee for a Free Czechoslovakia, Radio Free Europe, and other organizations financed primarily by the CIA.31
20
Money, Law, and Genocide
The breakdown of East-West cooperation in the wake of World War II was rooted not only in economic and geopolitical disputes over Europe, Asia, and the Mideast, but also in mutual paranoia and in deep ideological and cultural divisions. Within that well-known context, however, it is clear that Western statesmen seriously underestimated the profound symbolic and practical importance to the USSR of the United States’ abandonment of denazification of the German elite in 1945.
Allen Dulles’s “March 1945 secret talks with Germany were connected in Moscow with everything,” remembers Soviet scholar Sergo Mikoyan. Stalin saw it as of a piece “with the pre-war anti-Soviet diplomacy of England and France; [and with] the delay of the second front. It had a very great impact on the psychology of Stalin.
“For men such as Stalin, for whom betrayal was a normal way of life, he could not but understand those actions like this [i.e., as a betrayal],” Mikoyan continued in a recent forum at the Smithsonian Institution’s Wilson Center in Washington. “He regarded it as an attempt to make a kind of Ardennes for our side”—that is to say, a last-ditch German effort to split the Allies.
“The main issue for us was American behavior toward Germany” once Truman came to power, Mikoyan stressed, particularly the end of denazification and of Western cooperation in reparations, the economic and military reconstruction of Germany, and the unification of the three Allied zones of occupation. U.S. policy in Germany “was seen in Moscow at the time as an effort to make Germany strong again, and strong enough to menace our country. Particularly important for us was … the political support for Germany.” Without understanding the Soviet state’s near-obsessive concern with German power during that period, he concludes, it is impossible to understand Stalin’s actions during these first, crystallizing months of the cold war. Mikoyan contended that the U.S. decision to halt denazification in Germany was of great political importance at the time, and in fact remains difficult for many Russians to understand or accept to this day.1
The U.S. abandonment of denazification and decartelization was not a product of the cold war—it was a cause of it, and a considerably more important cause than was recognized in the West at the time. Some people may say that, looked at in geopolitical terms, denazification was a largely “psychological” issue. But for the USSR, the U.S. decision to end denazification went to the heart of the mystery of what U.S. intentions in Europe might be, and that in turn was the pivot upon which turned Stalin’s interpretation of all the “objective” data about U.S. troops, weapons, and diplomatic initiatives. From the very first days of the occupation, the U.S. practiced what appeared from the outside to be a duplicitous policy toward denazification and decartelization of Germany. This was not surprising, considering that the policy was a product of an unresolved factional conflict within the U.S. government that went back a decade or more. The USSR—and particularly Stalin, for it was he who almost single-handedly made key Soviet foreign policy decisions at that point—interpreted the contradictions in U.S. behavior as proof of the Americans’ bad faith.
Stalin’s own crimes and blunders are not justified, of course, nor can the past fifty years of Soviet publicity concerning Nazi crimes always be taken at face value. But whether the U.S. government intended it or not, its actions cast the die for the cold war not in 1946 or 1947 (as most Western observers would have it), but by the end of 1945 and arguably earlier.
The U.S. foreign policy and international law experts of the day—men like Murphy, Grew, Draper, Hackworth, the Dulles brothers, and others—significantly miscalculated the true political and military price of their decision to undermine denazification in 1945. The Realpolitik that to them seemed so useful in other circumstances proved to be a serious error for strictly practical reasons, even when its ethical and moral dimensions are put aside.
Morgenthau’s dire prediction that Germany would return to a campaign of world conquest within five or ten years clearly proved to be mistaken. This can be traced to the traumatic lessons that millions of ordinary Germans learned from their experience with Hitler, war, and genocide, and to the fact that the onset of the Cold War resulted in four decades of division and military occupation for Germany.
But it does not follow from Morgenthau’s error that the provocative U.S. and Soviet policies that precipitated the Cold War should therefore be regarded as having been wise after all. On the contrary, the Cold War has been dangerous and costly in its own right. It has bankrupted the USSR and very nearly the United States as well; led to a string of civil wars and “ethnic cleansing” campaigns in Eastern Europe; repeatedly threatened to spark a general nuclear war; and institutionalized a pattern of advanced weapons proliferation that has left most countries and peoples in a far more precarious position than they were when the conflict began. Morgenthau’s 1945 insight that a thorough denazification and demilitarization of Germany would help avoid this perilous collision proved to be remarkably prescient.
Meanwhile, the events of the Armenian Genocide and of the Holocaust also reveal a basic dynamic in the relationship of great powers to mass crimes. The problem is fundamentally structural; it is built into the system and not simply a product of a particularly evil or inept group of men. The terms of international law concerning war crimes were articulated at the turn of the century primarily by the countries then dominating international affairs: the major European powers, czarist Russia, and the United States. The big powers crafted the Hague and Geneva conventions to help manage the expensive arms race of the day and to set new, ostensibly more rational rules for wars and occupation of disputed territories. The conferees limited “legal” wars to those fought among regular, uniformed armies—a provision that greatly favor
ed the larger and established powers, for they had the clear advantage in such conflicts. They asserted the absolute sovereignty of nation-states over their subjects; declared most revolutions, most forms of civilian resistance to occupying armies, and colonial rebellions to be war crimes; and strengthened the claims of heads of state to legal immunity for acts in office. They set out detailed rules for commerce during wartime that tended to insulate business and trade from the disruptions of war to the greatest degree possible. Nevertheless, these treaties did lead to some important humanitarian advances, particularly in improving treatment of prisoners of war.
This structure for international law was put to the test during World War I, and failed. Despite some amelioration of the conditions for soldiers on the battlefield, the new framework of law did not confront or contain one of the signal crimes of the day: the Turkish Ittihad government’s destruction of some one million Armenians. Nor did existing international law achieve justice for the Armenians when the killing was over, in part because Britain, France, and the United States saw greater advantage in cooperating with Turkey in a new division of Middle Eastern oil than they did in bringing Ittihad criminals to justice.
The failure to do justice in the Armenian Genocide can be traced in important part to the overlapping, interlocking dynamics of economics, international law, and mass murder. The more predatory aspects of international law dovetailed well with the destructive social patterns of the Turkish killing. The law proved to be incapable of prosecuting genocide without drawing more “conventional” aspects of colonialism, national development, and international trade into the dock as crimes as well.
The legal and economic precedents set in the wake of World War I had considerable impact on the course of the Holocaust during World War II, just as the more widely understood political precedents did. Hitler himself repeatedly raised the international community’s failure to do justice in the wake of the Armenian Genocide to explain and justify his own racial theories, and the Germans’ pattern of “learning through doing” genocide was similar in important respects to that of the Turks. While the two crimes were different in important respects, they both were led by ideologically driven, authoritarian political parties that had come to power in the midst of a deep social crisis. Both the Ittihad and the Nazis—each originally a marginal political party—managed to perpetrate genocide by enlisting the established institutions of conventional life—the national courts, commercial structures, scholarly community, and so on—in the tasks of mass persecution and eventually mass murder. In both cases, the ruling party achieved its genocidal aims in part by offering economic incentives for persecution, the most basic of which were the opportunity to share in the spoils of deported people and the ability to transfer the costs of economic crisis onto the shoulders of the despised group.
These dynamics of the Holocaust also had a powerful influence on the international response to the Holocaust. This book has focused mainly on the responses by the small community of international affairs specialists on Wall Street, in London, and in Washington, D.C.
This small group played a key role in molding U.S. policy on Jewish refugees in Europe, in the analysis and prosecution of Nazi crimes, and in the articulation of U.S. policy toward Germany and the USSR. Officially, of course, their work was subordinate to the broad policy outlines laid down by the White House and the secretary of state. As a practical matter, however, these men and women enjoyed considerable influence over policy implementation, and they used this influence to pursue their narrow vision of U.S. interests. Even during the war, they often acted on the assumption that preservation of the “integrating elements” in German society was a prerequisite to achieving U.S. postwar goals, particularly that of maintaining capitalist democracies in Europe.
The U.S. State Department and its allies orchestrated an effort to preserve and rebuild Germany’s economy as quickly as possible as an economic, political, and eventually military bulwark against new revolutions in Europe, even though much of the corporate and administrative leadership of German finance and industry that they wished to preserve had been instrumental in Hitler’s crimes. Many critics, not least of whom was the U.S. secretary of the treasury, accused this State Department faction of anti-Semitism, blocking rescue of refugee Jews, appeasement of Hitler, and protection of Nazi criminals in the wake of the war.
The final problem examined in this book is that this strategy for Germany entailed substantial economic costs for the United States, in addition to the tragic human cost of the Holocaust. One of these was the rapid build-up of an enormously expensive and dangerous military competition with the USSR that for almost half a century repeatedly threatened to lead to nuclear war.
The similarities between the Armenian Genocide and the Holocaust suggest that the “Nazi problem” in postwar Germany is only partially traceable to the pressures of the cold war. Throughout the twentieth century, regardless of the prevailing atmosphere in East-West relations, most powerful states have attended to genocide only insofar as it has affected their own stability and short-term interests. Almost without exception, they have dealt with the aftermath of genocide primarily as a means to increase their power and preserve their license to impose their version of order, regardless of the price to be paid in terms of elementary justice.
Several dozen new international treaties intended to defend human rights have been signed since the end of World War II, including conventions against slavery, torture, race and sex discrimination, apartheid, and genocide.2 Each new agreement suggests that there is broad popular support for fundamental change in this aspect of state behavior and international relations. This sentiment is embodied, albeit imperfectly, in the United Nations, the European Commission on Human Rights, the Inter-American Commission on Human Rights, a similar intergovernmental organization in Africa, the private association Amnesty International, and many other groups that monitor human rights issues and publicize offenses. Today’s popular resistance to crimes against humanity is more sophisticated, better equipped, and better informed than ever before in human history.
But the actual implementation of these treaties and the legal framework supporting human rights efforts remains notoriously weak. The horror of the Nazi gas chambers was unambiguously condemned in the wake of the Holocaust, for example, but both sides’ practice of bombing civilians (and its tactical cousin, missile attacks on cities) has not only escaped criminal prosecution, it has become the centerpiece of the major powers’ postwar national security strategies. Usually there is little effective protest on behalf of the people living under the bombs.3 Similarly, after dragging its heels for four decades, the U.S. Senate in 1986 finally approved a simple international convention declaring genocide to be a crime. At the same time, however, the senators wrote a restriction into their endorsement that effectively barred any U.S. court from actually enforcing the measure until the Congress passed new implementing legislation—which it has yet to do.4 Such loopholes are present in virtually all international agreements concerning crimes against humanity.
In each of these examples, the institutions purportedly regulated by international agreements have succeeded in creating a legal structure that permits abuses to thrive. For many senior policymakers in the U.S. and abroad, international law remains “a crock,” as former Secretary of State Dean Acheson put it,5 when it imposes any limit on one’s own government.
The logical question, then, is, What should reasonable people make of the defects in international law on issues of war, peace, and mass murder? For some, there will be a temptation to conclude that humanity might be better off discarding the present body of international law altogether and somehow start again with a fresh slate.
But there is no such thing as a truly fresh slate, of course. The gutted and imperfect form of international law concerning war crimes and crimes against humanity that is presently embraced by the major powers is better than none at all, at least so long as those who seek the law’s protection have no illusi
ons about its scope. Compassion and good sense demand that the best features of international law be preserved and extended, even when existing treaties provide for little more than moral suasion in defense of human rights.
International law has often been a kind of pact between strong and weak nations. Not surprisingly, the powerful have stipulated most of the terms. But the weaker nations and peoples are not powerless, and for manifold reasons they are today gathering force. This means that they can at times obtain the rights and responsibilities written into international laws and legal precedents such as the Nuremberg Charter. The same is true, though to a much lesser degree, for individuals facing brutality at the hands of their governments. International law has to that extent become a tool for human progress; it has sometimes ameliorated the suffering of prisoners, helped contain those who would resort to aggression, and provided some platform, however fragile, for the assertion of basic rights by indigenous peoples.
Perhaps some additional hope for the future can be derived from the way in which the frustrated ideals of an earlier era are sometimes taken quite seriously by later generations. True, many aspects of the Nuremberg principles have yet to be implemented by national and international courts. But millions of people have nonetheless accepted some sense of these principles as a reasonable standard of justice that they have a right to expect. Thus, Nuremberg’s impact has sometimes been felt in popular demands for human rights, justice, and humane treatment for the victims of war even in countries where the courts refuse to recognize the Nuremberg principles as legally binding.
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