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Approximately 10,000 "War Crimes Trials" have been held
since 1945. Trials of Japanese military personnel ended in 1949, yet
"war crimes trials" of Germans and Eastern Europeans continue to date.
Almost invariably, the charge is "violation of the laws and customs
of war", derived, in turn, from international conventions signed at
the Hague in 1899 and 1907.
That these trials have little or no basis in law is clear from the wording
of the treaties which are said to have been violated.
Let us take a typical example, the Hague Declaration (IV, 3) of 1899
on the Use of Expanding Bullets, dated July 29, 1899.
The Convention states,
"The Contracting Parties agree to abstain from the use of bullets which
expand or flatten easily in the human body, such as bullets with a hard
envelope which does not entirely cover the core, or is pierced with
incisions.
"The present Declaration is only binding for the Contracting Powers
in the case of a war between two or more of them.
"It shall cease to be binding from the time when, in a war between the
contracting Powers, one of the belligerants is joined by a non-contracting
Power".
The United States never ratified this convention, which, thus, never
became "international law" in any war involving the United States. This
was because American troops were busy using expanding bullets against
Philipinos whom they had just "liberated" from the Spanish. American
refusal to ratify this convention meant, not only that the United States
was free to continue using expanding (or dum-dum) bullets legally in
all wars, but from the moment the United States entered any conflict,
all other belligerants were free to use them as well. (**)
This is called an "all-participation clause".
There are fourteen Hague Conventions, almost all of which contain similar
clauses, and for this reason have had little or no application since
1907.
The Fifth Hague Convention Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land of 18 October 1907, for example,
states:
Art. 20: "The provisions of the present Convention do not apply
except between Contracting Powers, and then only if all the belligerants
are parties to the Convention".
This Convention was never ratified by Great Britain, and never applied
after August 4, 1914.
Art. 1: "The territory of neutral Powers is inviolable".
Nevertheless, the British and Americans never tired of quoting this
clause against the German and Japanese despite their own violation of
the neutrality of Iceland, Greenland, Persia, Irak, Portuguese Timor,
and the planned violation of Scandinavian neutrality.
The Third Hague Convention Respecting the Opening of Hostilities states,
article 1, states:
"The contracting powers recognize that hostilities between themselves
must not commence without previous and explicit warning, in the form
either of a reasoned declaration of war or an ultimatum with conditional
declaration of war".
The problem here is that the "warning" may be as little as one minute,
and no verbal formula is required. Poland received two ultimatums and
was the first to mobilize. America received a formal declaration 25
minutes late, of which it had actual knowledge 10 days beforehand.
However, the basis of nearly all "war crimes trials" has been the Fourth
Hague Convention Respecting the Laws and Customs of War on Land. In
the words of Telford Taylor, Chief Counsel and Representative of the
United States for the Prosecution of War Crimes at Nuremberg:
"An Annex to the Convention," consisting of 56 articles, sets
forth various requirements and limitations with respect to the conduct
of hostilities, the treatment of prisoners of war, and the exercise
of authority over the occupied territory of a hostile state" (*).
This, then, is the Convention which the Germans and Japanese were alleged
to have violated in 10,000 trials. What does the Convention say exactly?
Art. 2: "The provisions... of the present Convention do not apply
except between contracting Powers, and then only if all the belligerants
are parties to the Convention".
This condition has remained unfulfilled since August 1, 1914. Non-signatories
during WWII included Italy, Greece, and the national states of Yugoslavia.
Communist Russia repudiated all Czarist agreements and never made any
pretence of obeying the Hague or Geneva Conventions.
Art. 3: "Belligerants violating the Convention may be made to pay
compensation".
This is self-explanatory. No trials were contemplated.
THE ANNEX TO THE 4th HAGUE CONVENTION
The Annex to the Convention was the real basis for nearly all of these
10,000 trials. This is the Convention which defines "war crimes"
and "war criminals"...
Articles 1 and 2 prohibit guerrilla warfare, stating that belligerants
must be "commanded by a person responsible for his subordinates...
have a fixed distinctive emblem recognizable at a distance... carry
arms openly... and conduct their operations in accordance with the laws
and customs of war".
Thus the European and Asian resistance movements were illegal.
Article 43 requires collaboration with occupation governments.
"The authority of the legitimate power having in fact passed into the
hands of the occupant, the latter shall take all the measures in his
power to restore, and ensure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force in
the country".
The "collaborators" shot, hanged, or imprisoned after WWII were acting
in compliance with international law.
Article 23 (3) prohibits weapons calculated to cause unnecessary
suffering.
Napalm, phosphorous, jellied gasoline, etc. are illegal.
Articles 25, 27 and 56 prohibit bombardment "by whatever means"
of undefended cities, cultural monuments, etc...
The fire bombings of Dresden and civilian areas of Hamburg, Tokyo,
Hiroshima, Nagasaki, etc., were illegal.
Article 6 states that belligerants may utilize the labour of
prisoners of war, officers excepted, for the public service, for private
persons or their own account.
German and Japanese "slave policy" was perfectly legal insofar as
it applied to members of resistance groups or lower ranking military
personnel.
Article 8: "Prisoners of war are subject to the laws, regulations
and orders in force of the State in whose power they are. Any act of
insubordination justifies the adoption towards them of such measures
of severity as may be considered necessary".
So much for the "mistreatment of prisoners" which formed the basis
of so many war crimes trials.
Article 46: "Private property cannot be confiscated".
The post-WWII expulsions and confiscations were illegal. The provisions
of the Versailles Treaty which confiscated the private property of all
German citizens resident outside Germany, including missionaries on
South sea islands, who were expelled and sent home penniless, were illegal.
Art. 5: "Prisoners... cannot be confined except as an indispensable
measure of safety, and only while the circumstances which necessitate
the measure continue to exist", and Art. 20: "After the conclusion of
peace, the repatriation of prisoners shall be carried out as quickly
as possible".
The prolonged detention of German and Japanese prisoners by the British,
French, Russians and Americans for years after the war was illegal.
Art. 7: "Prisoners of war shall be treated as regards board,
lodging, and clothing on the same footing as the troops of the Government
who captured them".
The conditions of detention in "Eisenhower's death camps" were illegal
whatever the death rate. (See Other Losses by James Bacque).
Art. 32: "A person is regarded as a parlementaire who has been
authorized by one of the belligerants to enter into communications with
the other... he has a right to inviolability".
The detention of Rudolph Hess was illegal.
Finally, article 23 (h) prohibits declaring "abolished, suspended,
or inadmissible in a court of law the rights and actions of the nationals
of the hostile party".
If these treaties have any application at all (which is doubtful),
the real war criminals were the Americans, the British, the French,
and the Russians.
The illegalities of "war crimes" proceedings include the admissibility
of oral and written hearsay, the introduction of the concept of "conspiracy"
into international law (unknown prior to 1945), the total lack of any
pre-trial inquest or forensic evidence, and trial before a court itself
composed of actual "war criminals".
To return to the writings of Telford Taylor:
"The issues surrounding the war crimes trials are numerous and complex;
discussion and criticism of what was done should be welcomed by all
who hope for a continuing development of international law... but what
should have been done instead is a problem generally ignored by those
who condemn what was done in fact" (*)
The alternative is a fair trial before an impartial court under existing
procedures and proper rules of evidence.
FOOTNOTES:
(*) "The Legality of the Trials", in "Trials at Nuremberg",
History of the Second World War, Volume 8, No. 7 3/6, Purnell
& Sons, 1969.
(**) Dum dum bullets, first manufactured by the British at Dum Dum,
India, are of advantage only in jungle warfare against primitive tribes,
where the danger is of sudden rushes of large numbers at close quarters.
They are not used in European warfare because they are inaccurate and
tend to foul guns. If they offered an advantage, they would be used
regardless of any treaty.
[This work was published in The Revisionist No. 3, March 2000]
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