Professor harry elmer barnes a tireless exposer of historical myths

The only really recent precedent which existed for the proposed proceedings at Nuremberg were the various political mock-trials which had taken place in Russia from the Revolution in 1917 onwards. It is, therefore, necessary to glance briefly at these mock-trials in Russia in order to realise how widely they departed from judicial trials in other countries and to consider to what extent they differed from the procedure later adopted at Nuremberg.

In a normal judicial trial, the result depends on the impartial judgment of independent third parties no more connected with the prosecution than with the defence. In a political trial in Soviet Russia, on the other hand, the judges and the prosecuting counsel together form a team; the proceedings are an act of state, and the result is a foregone conclusion. Neither the victim nor the prosecution are concerned with the figures duly arrayed as judges on the bench. The role of the latter is purely ornamental: their only active part is to read, when all is over, the judgment and sentences previously decided upon by the executive government. The speeches for the prosecution are political manifestoes, designed to justify the action of the government in instituting the proceedings and are directed, not to the Court, but to the outside public. At times, even a communist dictatorship must justify its actions to its subjects. Thus, in 1936, when it was decided to liquidate Zinoviev, Kamenev, Smirnov, and other prominent Soviet leaders whom the Russian public had long been taught to revere as heroes of the revolution, some kind of explanation for a political somersault of this magnitude had to be offered to the man-in-the-street. It was found that the most convenient manner of putting forward such an explanation was in the form of a speech for the prosecution, delivered after dictated confessions of guilt had been recited by the accused and before the death penalty had been recited by the Court. In normal mock-trials, all other roles are ancillary to that of the public prosecutor. The judge is a mere lay figure who recites a few set words when all is over.¹ Occasionally, as at the mock-trial of the G.P.U. chief, Henry Yagoda, charged with the murder by poison of the novelist Maxim Gorky, the judge enlivens the proceedings by what in the parlance of the music halls is termed “gagging”. But “gagging” by judges in a normal mock-trial is exceptional and irregular and is tolerated only as a relief from the tedium of long proceedings or when the public prosecutor fails to put over the Government manifesto as well as might be desired.

It would be futile to attempt an enquiry whether Stalin really believed, for example, that Yagoda was guilty of the crimes of which he was accused. That Yagoda was guilty of countless crimes there can be no doubt—Mr. Stephen Graham calls him “the worst villain of the Revolution”²—but it is difficult to see what motive Yagoda could have had to finish off by poison a septuagenarian novelist already dying of senility. Probably Stalin troubled himself very little on the point, on which he may have had no definite opinion. To him it was merely a matter of routine practice that a G.P.U. chief, discarded as no longer useful to the regime, should be liquidated.

In Russian Purge³ the authors, themselves prominent Soviet citizens who were victims of the Great Purge of 1936-1938 but escaped with their lives, express surprise that the delusion should persist in the West that, in Soviet Russia, there exists any necessary connection between a man’s arrest and any particular offence alleged against him. In the vast majority of cases, persons were arrested during the Purge for having “objective characteristics” which means, in Marxian legal jargon, that they belonged to one or another of a dozen categories which the executive government had decided “as a measure of social security” to eliminate or suppress. The precise charge, bringing these unfortunates within the Soviet Criminal Code and on which, in due course, they would be sent to a term of forced labour or to execution, was decided much later. In the United States and in Great Britain, the functions of the judiciary and the functions of the executive are kept rigidly distinct. But, under Soviet law, the executive exercises the widest judicial powers. The vast majority of political prisoners are dealt with by the executive; only one case, here and there, is passed on to the judiciary for what is called in the above-mentioned book “a show trial”. In these cases, the duty of the judiciary is limited in practice to rubber-stamping, for propaganda purposes, the judgment of the executive government.

Handicapped, on the one hand, by their own legal learning and, on the other, by their profound ignorance of Marxian ideology, the English and American judges were pained and puzzled by the Alice-in-Wonderland atmosphere which, as a result of the dual character of the proceedings, prevailed at Nuremberg and which they strove in vain to dispel. Yet nothing, in fact, could have been simpler or more logical than the Marxian attitude to the trial. The prisoners were members of a political party established by Adolf Hitler for the express purpose of combatting Communism. Their “objective characteristics” could not, therefore, be in dispute. No punishment was called for in such a case but the exercise of “the supreme measure of social security”, which in Marxian terminology means the carrying out of a sentence of death.

It was easy enough for the politicians to agree that the war should end with a liquidation, in accordance with Marxian ideology, of all persons with undesirable objective characteristics, preceded, however, by a trial in accordance with established principles of justice. It would, however, be hard to exaggerate the difficulties which faced the lawyers entrusted with the task of devising a procedure which would carry out this agreement. Lawyers instinctively turn to precedents for guidance, but intensive searching of the legal records of ancient and modern times disclosed no exact precedents, but only a few cases containing helpful suggestions. Of these it could at least be claimed that the prosecution, conviction and execution of the Persian satrap, Bessos, by Alexander the Great at Zariaspa in Bactria in 329 B.C. was a precedent of classical antiquity.

Bessos was a Persian patriot who led the last resistance to the victorious Macedonians after the overthrow of King Darius at Arbela. Having been subjected to various tortures, and having had his nose and ears cut off as a pre-conviction punishment, Bessos was condemned to a formal trial. Alexander the Great assumed the role of prosecutor and delivered an eloquent speech demanding conviction. He then assumed the role of judge, declared himself convinced by his own arguments and sentenced the unfortunate Oriental to a death by torture. In A.D. 1945, the case of Bessos in 329 B.C. was triumphantly cited by eminent jurists as an authority for the contention that an accuser was a fit person to act as judge of his own charges. Until the close of the Second World War it had not indeed occurred to anyone to attach significance to this episode in the life of the great soldier and conqueror which had been generally regarded by his biographers as a discreditable lapse revealing the latent streak of savage cruelty in his character. Admirers of Alexander have always contended that he was prone to histrionic gestures and that there is no reason to doubt that he sincerely believed Bessos was a villain richly deserving severe punishment. With complete sincerity and characteristic vanity he was convinced that no one could plead for a conviction more forcibly than himself, and no one could more ably discharge the duties of a judge or find a penalty more neatly fitting the crime.

Whether or not the trial of Bessos can be regarded as a precedent justifying the trial of the German leaders after the Second World War, it must be conceded that it contained all the essential characteristics of the “war-crimes trial” as practised in recent times. It is distinguishable on the one hand from the ancient mock-trial in which the victim suffers as a symbol for the shortcomings of his race or party, and on the other hand, from the mock-trial of the type which evolved in Russia after the Bolshevik Revolution and which, as explained above, is in essence a political manifesto by the party in power expressed for convenience or effect in the form of a trial at law.

Having discovered a trial in the year 329 B.C. which could be plausibly cited as a precedent for the trial which the chiefs of state at the Yalta Conference had decided should take place before the liquidation of the captured German leaders, the eminent British, French and American lawyers entrusted with the task of making the necessary arrangements searched in vain the records of the following two thousand years for another helpful precedent.

In deference to French public opinion it was clearly inexpedient to cite the trial of Joan of Arc in 1431. In any case the nature of this trial and the form in which it was conducted distinguished it sharply both from a symbolic mock-trial and from a war-crimes trial of the Bessos type, although the English Government had undoubtedly decided beforehand that the outcome of the proceedings must be the death of the prisoner. The question which faced the English Regent, the Duke of Bedford, was in fact exactly the same as that which faced the chiefs of state at Yalta five hundred years later. Three courses were open to him. A majority of the Great Council of England recommended that when she had been purchased from her captor, the Duke of Luxembourg, she should be sewn in a sack and surreptitiously dropped in a river. If that course had been adopted Joan would now only be remembered as a peasant girl who, according to popular belief at the time, had played the leading part in the relief of Orleans in 1429. Alternatively he could have ordered her to be tried on a charge of war-crimes by a selection of the disgruntled warriors who had fled before her at Patay. The Regent, however, decided to take advantage of Joan’s capture to stage what would now be called a propaganda stunt. In the 20th century it has become customary to regard a successful political opponent as a criminal; in the 15th century it seemed natural to ascribe one’s defeats to the use of witchcraft. So the Regent decided to hand Joan over to an ecclesiastical court presided over by the Bishop of Beauvais in whose diocese she had been captured, there to be tried on charges of “divers superstitions, false teachings and other treasons against the Divine Majesty.”

Although useless as a precedent, the trial of Joan of Arc provided the team of lawyers preparing in 1945 for the trial of the captured German leaders with many valuable lessons. In 1431 the Regent decided that the prisoner should be tried by an independent tribunal over which he could exercise no direct control. The ecclesiastical court which tried Joan of Arc was in theory at least far above mere political considerations and acted in accordance with an elaborate and well-established system of law, clarified by copious precedents, which for centuries had been accepted by every Christian country. No question arose, therefore, as at Nuremberg in 1945 of inventing a novel system of law in order to establish breaches thereof. Also the jurisdiction of the court to try her on charges of offences against God, and the accepted beliefs and morality of Christendom could not be challenged. It is unnecessary to speculate here as to what the English Government might have done if this ecclesiastical court had acquitted her and ordered her release. The court convicted her, largely on her own admissions, on the charges brought against her. As Bernard Shaw says in Saint Joan: “She was condemned after a very careful and conscientious trial.”

While it convicted the accused, however, the ecclesiastical court did not bring in exactly the verdict which the Regent’s policy required. In place of public burning as “a Heretic, Relapsed, Apostate, Idolatress”, she was sentenced to life imprisonment. As Lenin once said: “Who troubles about imprisonment when a change of fortune may bring swift release?” As a result of his decision to have Joan tried by an independent court, the Regent Bedford failed to get the judgment he desired. In order to achieve his purpose he had to exercise strong pressure behind the scenes to have the sentence of imprisonment passed by the ecclesiastical court on Joan replaced by a sentence of death by burning at the stake. Evidently the War Crimes Commission in 1945 took this lesson to heart and so avoided the mistake made in 1431. Probably at Nuremberg an impartial court, composed of neutral judges, would have convicted most of the prisoners on one charge or another. Most certainly, however, they would not have rubber-stamped the verdict of guilt already pronounced by the chiefs of state at the Yalta Conference.

One lesson, however, from the records of the past was overlooked by politicians and lawyers in 1945. Almost without exception trials of which the main object is political, whether they be grotesque mock-trials or “careful and conscientious” judicial trials, fail dismally in their two main objects. Instead of discrediting the accused in the eyes of posterity, they bestow on them fame, publicity, interest and sympathy. Not her actual achievements, but the decision of the English Government to bring about her death in a strictly legal, orderly and public manner, established the fame of Joan of Arc, enriched the history of the Middle Ages with their most picturesque figure, gave France a national heroine and ultimately added her name to the Calendar of the Saints.

Similarly, political trials designed to establish for all time the victors’ point of view have the opposite result. If they do not always arouse sympathy for the vanquished, distaste and resentment is inevitably generated against the victors. Self-satisfied rectitude, even when justified, is rarely an attractive spectacle, and moral indignation, when clearly not disinterested, is very liable to be mistaken for hypocrisy.

The latter drawback to political trials was demonstrated in 1648 by the trial of King Charles I by a court composed of his political enemies and having not a shadow of jurisdiction to sit in judgment on him. Few can now read an account of this trial without becoming insensibly influenced in Charles’ favour. The verdict itself, of course, has not the faintest weight with historians. Opinions are still divided concerning Charles; some consider him, in the main, a well-meaning monarch, more sinned against than sinning; others consider him, on the whole, a weak and irresponsible tyrant. No one would dream of quoting the verdict of John Bradshaw and his fellow regicides as having decided the matter.

It had no doubt been hoped that a diligent search of the annals of the Revolutionary and Napoleonic wars would provide authority for the contention that civilized victors have recognised an unescapable duty placed upon them by their victory to punish the shortcomings of the vanquished. But, as pointed out in the chapter of this book dealing with civilized warfare, the victors in 1815 recognised no such duty. Their forbearance, which seems so astonishing at the present day, was certainly not due to any lack of deeds of violence by the vanquished French which could have been made the subject of criminal charges. Marshal Blücher, remembering the ruthless treatment of Prussia by Davout after the battle of Jena, urged with soldierly directness that Napoleon should be shot on capture and the traitor Talleyrand heartily approved. The victorious allies, however, not only refused to countenance such summary treatment of a fallen foe but rejected the demand of the restored Bourbons that Napoleon should be put on trial by a French court for the shooting of the Duc d’Enghien in 1804. During the twenty-three years during which the struggle had raged French armies had overrun all Western Europe from Cadiz to Moscow, and had committed wholesale every variety of violent crime. In Germany, in Russia, and particularly in Spain guerilla bands had harried the French troops with a ferocity hardly surpassed even by the gangs of Partisans which harried the German troops during the Second World War, with the result that equally savage reprisals had been provoked. In particular, Marshal Suchet had made himself notorious while in command in Aragon by the severe methods which he employed to protect the lives of his men from treacherous attacks by armed Spanish civilians. Evidence for a dozen charges against him of having been responsible for war-crimes could easily have been collected and his conviction by a Spanish court would have been a certainty. Nevertheless no action of any kind was taken against him and he was allowed to end his days in honourable retirement.

Between 1815 and 1918 no European war ended with the victorious side finding itself in a position to dictate the terms of peace entirely as it suited them, regardless of the rights of the vanquished. Excessive demands might have provoked intervention by neutral Powers: world opinion had to be taken into account by the victors. All the wars between these dates were wars between individual Powers like the Franco-German war of 1870 or small groups of Powers like the Crimean war of 1854. They all ended with negotiated peace treaties which, because they were negotiated treaties, proved lasting. No precedents for the disposal of captured enemies even of the most shadowy kind were to be found in the records of the wars of the 19th century. It is amusing to note however that if Queen Victoria had been allowed to have her way in 1882 the lawyers planning the Nuremberg trials in 1945 would have been provided with a really helpful precedent. Seventy years before Nasser’s seizure of power in Egypt, another junior officer, Colonel Ahmed Aribi, led a similar revolt against the corrupt rule of the Khedive Ismail, but which ended very differently. To protect the interests of the Christian holders of Egyptian bonds, Alexandria was bombarded, a British army was landed and Aribi Pasha’s troops defeated at Tell-el-Kebir. Aribi Pasha became a prisoner of war and the question then arose what should be done with him.

The Khedive insisted strongly that the prisoner should be handed over to him so that his fate might serve as a lesson for all time to mutinous junior officers—a lesson indeed which, if administered, might have helped three quarters of a century later to keep in order a certain junior officer named Nasser. The decision rested with Mr. Gladstone. Although, as he characteristically expressed it, he “was almost driven to the conclusion that Aribi Pasha was a bad man”, Mr. Gladstone hesitated to hand over the captured officer to the Khedive. Queen Victoria, however, had no doubts whatever on the subject. She was, as she herself put it, “distressed and alarmed” at the mere possibility that “the arch-rebel and traitor Aribi” should escape the fate which he deserved which she “believed everyone, including Mr. Gladstone himself, wished him to suffer.” In the end Mr. Gladstone, in spite of her expostulations, decided to send Aribi into exile in Ceylon. When she was asked to send a personal message to the Khedive to help him soothe the ladies of his harem who were “frantic with indignation” at this leniency, she flatly refused, declaring that the Khedive’s wives “show a right feeling in being frantic” at this display of weakness by the British Government of which she herself “so highly disapproved”.

The lawyers entrusted with the task of preparing for the Nuremberg Trials had, of course, very clear and recent precedents ready to hand in the various “show-trials” (to use Marxian terminology) staged by Stalin during the Great Purge (1936-38). Unfortunately in 1945 it was impossible for them to cite these precedents because a stringent taboo was in force prohibiting all mention of the Great Purge, which, at the time it was carried out, had aroused worldwide surprise, consternation and horror, especially in those Leftist circles in Britain and the United States which regarded the Russian Revolution as a great landmark in the course of human progress. That Stalin should order the death of his closest colleagues, the men who had helped Lenin to Confer the blessings of Communism on the Russian people, was of course entirely consistent with all that was known concerning his personal character. Nevertheless the Great Purge came as a shock to all those who cherished delusions concerning the nature of the Soviet Regime. When Hitler’s invasion of Russia in June 1941 transformed Stalin from a confederate of Hitler into an ally of Britain, it became imperative to expunge from public memory all recollection of what was known concerning him and the grim police state which he had established in Russia. This was successfully accomplished by the invention of the Great Stalin Myth. In place of the ruthless tyrant whose character was finally revealed to the world in 1956 by his successor, Nikita Khrushchev, there was held up for public admiration the benign figure of “Uncle Joe Stalin”, the champion of liberty and lover of all mankind, the loyal ally who was inspired by the same lofty ideals as Churchill and Roosevelt. To preserve public belief in the Stalin Myth it was absolutely imperative that no mention of any kind should be made of the Great Purge.

Deprived of the only set of useful precedents for the coming trials of the captured German leaders, the group of international lawyers preparing for these trials had no choice but to present them as a completely novel departure in the administration of justice. They received with shocked silence General Nikitchenko’s unwelcome assertion that the coming trials to be held in Nuremberg would be merely an adaptation of the show-trials carried out during the Great Purge, and they proceeded to make arrangements which would disguise this fact so far as it was possible. The result of their intensive labours was the production of the London Agreement which was made public on the 8th August, 1945. The details of this remarkable production require brief examination here.

The London Agreement was an agreement between the British, American, French and Russian Governments to establish a body to be called the International Military Tribunal for the trial of “the major war criminals whose offences have no particular geographical location.” No definition was given of the term “major war criminals” except that the right was reserved by each victorious state to try, according to its own laws, any war criminal in its hands for offences committed on its own territory. Attached to the Agreement and forming an integral part of it was a sort of schedule, grandiloquently labelled “The Charter”, which purported to define the powers of the Tribunal and the procedure which it was to adopt.

On the face of it, therefore, the London Agreement was nothing more than a private arrangement between four sovereign states to put on trial captured subjects of another sovereign state. Had the contracting parties been, say, Costa Rica, Nicaragua, Honduras and Salvador, such an agreement would only have been of interest as an indication of how little the elements of jurisprudence were understood in these countries. The fact that the four parties to the London Agreement happened at the time to be the four most powerful states in the world, clearly could have no bearing on the question whether its terms were in accordance with international law. The tribunal which it created was not an international body, except in the sense that more than one state was represented on it. It was simply a gathering of legal officials appointed by four states in accordance with a private arrangement between themselves.

The most important part of the so-called Charter is Article 6, which purports to create two new crimes against international law. The first is labelled, “Crimes against peace”, which it defines as “planning, preparing or waging a war of aggression or a war in violation of international treaties.” The second is labelled “Crimes against humanity”, which it defines as “inhumane acts against any civilian population before or during the war and persecutions on political, racial or religious grounds.”