War Crimes

“The real complaining party at your bar is Civilization.”

So said United States Supreme Court Justice Robert L. Jackson on Nov. 21, 1945 as he reached the conclusion of his opening statement to the International Military Tribunal at the Palace of Justice in Nuremberg, Germany.

Justice Jackson had been asked by President Truman to take on the assignment of chief U.S. prosecoutor in the international trial of 22 defendants (21 present at the trial, the 22nd, Martin Borman, disappeared and his fate remains a mystery.) The defendants were drawn from the leadership of the Nazi Party, the government of the Third Reich, the administrators of its brutal regimes in occupied lands and from the leadership of its military.

The most famous of the defendants was Herman Goering, one of the four most powerful men in Nazi Germany. The others, Adolph Hitler, the leader of it all, Joseph Goebbels, its propaganda minister, and Heinrich Himler, all-powerful head of the SS and all its malevolent agencies and as such the architect and chief executor of Hitler’s order to carry out what they called the final solution and we call the Holocaust – these four had cheated justice by killing themselves.

The tribunal was comprised of four victor nations, the United States, the Soviet Union, Great Britain and France (the latter having been conceded a place on the court with the victors at British insistence, notwithstanding France’s shameful surrender to Germany in June 1940, and the subsequent collaboration of so many of its people and of the rump collaborationist Vichy government after the fall of France from 1940 until 1943 when the Germans occupied the rest of France.)

It is more than ironic now that the Soviet Union, predecessor to the modern Russian Federation, should have been one of the judges at the trial. The British, American and French members of the court were lawyers with jurisprudential experience. They wore the robes customary to their courts at home. The Soviet member was a general in uniform.

It is important to understand that by prior agreement among the three real allied powers, the U.S., Britain and the Soviets, there would be one over-arching inernational trial of some (but hardly all) of the leadership of the Nazi state and that otherwise nations in which monstrous German crimes of all kinds had been committed by tens of thousands of other Germans (millions really if you include all the German soldiers on the eastern front) would be tried by and in the nations where those crimes took place whether of Germans or their national collaborators like Pierre Laval, premier of Vichy France under its head of state, Marshal Philip Petain.

Also, the four victors would also conduct war crimes trials in their sectors of occupied Germany. Hence when we in this country speak of the Nuremberg trials we largely mean the first international trial and the trials conducted by American aurhorities in the American sector of defeated Germany. The American sector trials ended in 1948. Among the probably tens and tens and tens of thousands of guilty Nazis in its sector, the U.S. found and tried only 199 of whom just 167 were convicted.

But all of those later trials, particularly those held by the Americans, British and the French were given legal authority, shape and form by the first, the one and only trial before the International Military Tribunal. Indeed, the world’s understanding today of what are lumped together now as war crimes derives entirely from that first trial.

And that trial in turn was shaped by the indictment brought by the charging parties, the four nations of the tribunal and especially by the opening and closing statements of Justice Jackson, both regarded as monuments to expression of the law of civilization and to the very idea that the law can be just and render justice fairly (though it fails of course so often).

Jackson, a man of complexity, with flaws and at times a contentious career on the Supreme Court, is the only American to have served as U.S. Solicitor General, U.S. Attorney Genral and as a justice of the Supreme Court, all of those position by apointment of President Franklin D. Roosevelt.

The largest part of his exact and detailed opening charge was to describe and recite the vast Nazi crimes in the context of the four overarching allegations of the indictment.

*Cimes against Peace (Planning and conducting wars of aggression,e.g. the casis belli of the entire war, the invasion of Poland).

*War Crimes (e.g. the starvation deaths of 2.5 million Soviet prisoners; the murder of over 150 American POW’s by the SS at Malmedy, France in December 1944).

*Crimes against Humanity (above all the Holocaust; enslavement of millions, destruction of entire villages, towns and cities, e.g. Warsaw in August 1944).

*Conspiracy (in aide of and to commit all the other crimes)

This is what Justice Jackson told the tribunal as he laid the groundwork for the full explication of the case as he proceded to describe the enormous litany of crime by the German state, its government, the Nazi Party and all the organs of its government and in particular the 21 defendants present.

“May it please Your Honors:

“The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”

Equally pertinent today is this next statement by Justice Jackson:

“…. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It is a cause of that magnitude that the United Nations I lay before Your Honors.”

It took the entire day for Justice Jackson to lay out the vast details contained in his charge. As he reached his conclusion, he said this in final summary:

“The real complaining party at your bar is Civilization …

“Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have leave to live by no man’s leave, underneath the law.”

So we ask, yes we ask:

Is Vladimir Putin a war criminal? Are his agents like Russian Foreign Minister Lavrov, or the duplicious liar who is Putin’s ambassador to the U.N., and the heads of Russia’s military — and others not yet visible to us – we ask, are they war criminals?

Have they left already a trail of evidence that more than fits the charges brought before the Intrnational Militay Tribunal in 1945, evidence of crimes that if thakfully not on that scale, nonetheless outrage, insult and injure civilzation as Germany did from 1933 to 1945?

Unlike 1945, there is not an alliance of victors to bring the charges, make the case and seek redress for “the real complaining party at your bar” – civilization.

There is an International Court of Justice at the Peace Palace in the Hague, one of the six main branches of the United Nations, estalished by the U.N. in 1946 to adjudicated disputes between nations. However, the five permanent memers of the U.N. Security Council, inlcuding the U.S. and Russia, can abrogate its rulings. It is the court that convicted the Bosnian Serb leader. Since 1986 the U.S. though part of the court has deemed itself not subject to the court’s decisions concerning U.S. conduct (the court ruled against us in a case involving American involvement in Nicaragua so we decided not to respect it).

There is also the International Criminal Court in Brussels but the United States has never ratified the treaty that established it in 2002 and does not recognize its jusridiction though the court came into being after the vast crimes in the Balkan Wars of the 1990s and the Rwandan bloodbath in 1994. We did not and do not want our wars in Iraq and Afghanistan subject to its jurisdiction, which we do not recognize in any case.It has mostly concerned itself with war crimes in Africa and to a lesser extent the Middle East but not matters in Europe.

So, when we talk of war crimes and understand them through the words and voice of Justice Jackson so many years ago — for that is our understanding and the basis for it — we must also recognize that he wrote and spoke those words in the service of a comprehension of justice shocked in 1945 by the incomprehensible crimes of Germany.

And we must understand that now, right now, no such agency exists and no such alliance of nations detrmined to redress together the wrongs in Ukraine exists.

Given all this and given what we know, it is easy to say bring him to trial. It may be impossible to do so and in all likelihood is and will remain so.

And, if he knows nothing else, Vladimir Putin knows this.