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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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