Professor harry elmer barnes a tireless exposer of historical myths

It appears that the British authorities innocently mistook the indifference of the British public to what was taking place for wholehearted approval. In the summer of 1948, it was casually announced that three famous generals, Field Marshal Gerd von Runstedt, Field Marshal Fritz Erich von Manstein, and Colonel-General Strauss, who had spent the previous three years in honourable captivity in England as prisoners of war, were to be sent back to Germany in order to stand their trial as war-criminals.

A storm of protests at once broke forth, far exceeding the outcry which had arisen over the condemnation of Field Marshal Kesselring. What was the reason, it was asked, for bringing these belated charges? “If these men were guilty of war-crimes,” wrote Professor Gilbert Murray to The Times, “they should have been promptly accused and punished. Nothing can justify keeping these men in prison for three years without a trial.”

The Government had no reply to make to this question and the controversy in the columns of the Press and the debates in Parliament were entirely one-sided. In vain the Lord Chancellor, Lord Jowitt, reiterated that he was satisfied in the depths of his heart that the prisoners had a case to answer and that the trials really should take place. The storm continued. At last, on May 5, 1949, Lord Jowitt announced that the charges against Field Marshal von Runstedt and Colonel-General Strauss were to be dropped. But the case against Field Marshal von Manstein must, he insisted, proceed. “The whole matter for the last six months has been a source of great worry to me,” Lord Jowitt declared plaintively.

The solution decided on to put an end to Lord Jowitt’s six months of worry can only be regarded as most unfortunate from any point of view. Of the three distinguished soldiers threatened with prosecution as war-criminals, only Field Marshal von Runstedt, the hero of the famous winter-battle of the Ardennes, at the end of 1944, was generally known to the British public. The names of his two comrades, if known at all, were unassociated with any particular event. The reason officially given for the decision not to put him and Colonel-General Strauss on trial was their advanced years and declining health. An excellent reason in both cases, no doubt. But it was a reason that applied equally well in the case of Field Marshal von Manstein who was also elderly and in bad health; he had always been delicate and was now threatened by blindness. The age of all three men was in the neighbourhood of seventy.

So unconvincing an official explanation inevitably invited speculation as to the true reason. Inquiry showed that, although Manstein had spent the last four years of the war on the Eastern Front, he had taken a leading part in the Campaign of France, in 1940, and to his brilliant strategy was generally ascribed the great breakthrough near Sedan on May 13th, which led in a few weeks to the withdrawal of the B.E.F. from Dunkirk and the capitulation of France at Compiègne. In his book, The Other Side of the Hill, Captain Liddell Hart writes:

“The ablest of all the German Generals was probably Field Marshal von Manstein. That was the verdict of most of those with whom I discussed the war, from Runstedt downwards. He had a superb strategic sense and a great understanding of mechanized warfare.… From him came the brain-wave that produced the defeat of France—the idea of a tank-thrust through the Ardennes.”¹

A triumph so swift, so complete and, above all, so unexpected must inevitably have produced widespread psychological reactions. When, on May 10th, 1940, two million German troops began the long-awaited attack on the Western Front defended by some three and a quarter million men, confidence reigned supreme that this attack would be victoriously repulsed. No other result indeed seemed possible. On the one side were hurriedly trained German conscripts, many of whom were believed to hope for defeat as the only means of bringing about the downfall of Hitler’s regime which they were supposed to hate. Their organisation had been hastily improvised; owing to shortage of raw material their equipment was of poor quality, and they were outnumbered by three to two. On the other side were the famous Maginot Line, constructed at such vast cost and considered by the experts as impregnable; the French Army the same instrument which Marshal Foch had led to victory twenty years before, re-equipped and reorganised in accordance with the lessons of the 1914–1918 War; and the B.E.F. made up of 350,000 long-service soldiers, the best trained and equipped army that Great Britain had ever despatched to fight in a European war. Under such circumstances, it is not surprising that few paid attention to the poet Rudyard Kipling’s warning against indulging in “frantic boast and foolish word”. Thus, on April 5th, 1940, in the apparent security of British G.H.Q., General Sir Edmund Ironside, Chief of the Imperial General Staff, “with the full consent of Mr. Oliver Stanley, the War Minister” gave the following “frank interview on the war,” proudly described as being “one of the most outspoken statements ever made by a British military leader in wartime.” As reported in the Daily Mail the following day, the gallant general said:

“Hitler has ‘missed the bus’ in not attacking us during the last seven months. We have turned the corner. Having seen the British Army over in France, what we have got in this country, and also the French army, I feel that everything is going on well.

The spirit of the young men is something that has to be seen to be believed. As an actual fact there is no officer in the German Army opposed to us who served in the last war above the rank of captain. We have generals and colonels galore, and so have the French Army—men still in the pink of condition—who commanded in the last war and know what it means.

I know most of the German commanders personally. I should say that most of these men are now feeling very exercised about what they should do if the order was given to ‘go’.

In this country today there is no doubt about the reasons for which we are fighting. There is a great silence in Germany. German propaganda is full of lies and this must be bad for morale.

It seems to me that one reason why the German troops are kept in position at the front is that they can be much better controlled there.”²

Within less than two months of this speech—a verbose and authentic variation of Kaiser Wilhelm’s entirely fictional reference, in 1914, to Sir John French’s “contemptible little army”—the B.E.F. was embarking at Dunkirk in order to return to Britain. It was leaving behind it all its guns to the number of 2,300; 120,000 vehicles, including all its tanks, armoured cars and lorries; and all its equipment, ammunition and stores. That the bulk of the troops succeeded in escaping at all was due entirely to Hitler’s delusion that the dark menace of Asia overshadowing Europe would induce Great Britain to come to an understanding with Germany in joint self-protection. Few members of the B.E.F. returned to England with more than the clothes which they were wearing.

Anyone but a British Foreign Office official would have foreseen that the decision to single out as a war-criminal the general to whom, it is agreed, was due the credit for this amazing triumph was bound to give rise to regrettable misconstruction. In this speech, General Ironside was only expressing views universally held at the time in the highest military and political circles. We are assured he spoke “with the full consent of Mr. Oliver Stanley, the War Minister.” Sudden realisation of the truth must have come as a terrific shock. Resentment at the time must have been widespread in political circles. Inevitably, the trial at Hamburg, in 1949, of Field Marshal von Manstein came to be widely regarded as retribution for his achievements in 1940 which have secured for him a sure place in world history.

It is quite certain that the true explanation of the persistence with which the demand for the trial of Field Marshal von Manstein was pressed is that, if he had been released, it might have been difficult to resist a demand by the Soviet Union for his surrender as a war criminal, in view of the Moscow Declaration of October 1943 and the reciprocal undertakings exchanged in 1945. In accordance with these undertakings, a number of prisoners of war had, in fact, been handed over to the tender mercies of the Poles, Greeks and Serbs. But, in default of a reasonable explanation or, better, of an explanation which could be frankly stated, it was inevitable that untrue and unjust explanations should have been suggested in foreign quarters critical of Great Britain.

Neither the danger of misrepresentation nor any other objection succeeded in shaking for an instant the iron determination of the British Government to proceed unflinchingly with this belated war-crimes trial, an iron determination all the more remarkable since determination of any kind had been conspicuously absent from British foreign policy in regard to every other matter since the War. Hope of appeasing Russian hostility having long since been abandoned, there was no object or advantage to be gained by the trial; public opinion in Great Britain was quite indifferent; a small but influential minority was extremely outspoken in opposition; and those who desired to hear that another German general had been hanged considered it the best policy to remain silent in the hope that the outcry would die down if left unopposed. As a result, the debates in Parliament on the matter were entirely one-sided, but the order to the army authorities to proceed with the trial remained unrevoked.

But, although the opposition aroused by the decision to put Field Marshal von Manstein on trial as a war-criminal failed utterly to shake the resolve of the British Government, it led to other important results. It was strongly urged that, if this war-crimes trial must take place, it should at least be conducted with fairness. The Field Marshal’s trial would take place before an English military court and, therefore, he ought to be represented by English counsel. Possibly, because the effects of such an innovation were not at first realised, this proposal was not openly opposed. Probably, reliance was placed on the fact that, the Field Marshal was practically penniless, since all his property being situated in the eastern provinces of Germany annexed by Poland, had been summarily confiscated. In order to deprive him of legal assistance therefore, it only appeared necessary for the British authorities to refuse him adequate funds to pay for his defence. The Bar Council did not even trouble to repeat the ruling, which it had given before the Nuremberg war-crimes trials began that it was “undesirable” that a member of the English Bar should appear for the defence. It remained, therefore, possible to contend that the accused was free to employ any lawyer, English or German, whom he pleased. The fact that he had been robbed of all his money by the allies of Great Britain and, consequently, could not pay for legal aid was plainly no concern of the British Government.

It had, however, been wrongly assumed that the Field Marshal’s sympathisers would be content with protesting. The necessary funds to pay for his defence, amounting to some £2,000, were quickly raised by public subscription. The British authorities would, no doubt, have foiled this move by prohibiting the export of British currency for such a purpose but for the fact that one of the subscribers to the fund was no other than Mr. Winston Churchill. After six months worry, Lord Jowitt was in no mood to bring down on himself the formidable wrath of Mr. Churchill. The opposition ignominiously collapsed. Mr. R. T. Paget, K.C., M.P., generously offered his services without a fee.

Field Marshal von Manstein was formally charged on January 1st, 1949, the farce of confiscating his uniform having been solemnly enacted whereby he was deemed to have become a civilian. The trial commenced in Hamburg on August 22, 1949, and dragged on until December 19 following.

It would be outside the scope of this book to examine the details of the trial of Field Marshal von Manstein. The only real issue in the case is, however, so simple that it can be explained in a few words. The Field Marshal was in command of the army group on the southern wing of the Eastern Front. Facing him were the Russian armies with a numerical superiority of seldom less than four to one. Behind his lines raged a ceaseless and furious struggle between the German security forces and the communist commandos in which the unfortunate civilian population, willingly or unwillingly, joined. This struggle had commenced on the first day that the German armies crossed the Russian frontier when Stalin announced that the war “was not only a war between two armies but at the same time a war of the entire Soviet people against the Fascist German troops”. According to Russian official reports, in the Crimea alone, 18,910 German soldiers were killed by the partisan bands, 64 troop trains were blown up, and 1,621 lorries destroyed. Prisoners and wounded were murdered, generally after mutilation; horrifying deeds took place whenever a German hospital was seized by the guerillas.

As has been previously repeatedly stressed, the essential characteristic of civilized warfare is the drawing of a distinction between the enemy combatant forces and the enemy civilian population. But, in the fighting on the Eastern Front, no such distinction could be drawn; any Russian civilian who maintained his civilian status was liable to be executed by his own countrymen as a traitor. The task of combatting this campaign of terror behind the German lines fell mainly on units of the S.D., the intelligence branch of the Geheime Staatspolizei, otherwise known as the Gestapo. These units operated quite independently of the army. They were not subject to military discipline. Their orders came direct from Hitler via Heinrich Himmler, the chief of the Schutzstaffel, (the S.S.), the Gestapo and the S.D. There is no question that their orders were to combat terror by terror; there is no reason to think that they did not do their utmost to obey their orders.

In a nutshell, the charge against the Field Marshal was that he knew or should have known what was taking place. There is no question that horrible atrocities were committed by both sides in the struggle. Under the ruling laid down in the London Agreement the atrocities committed by the German security forces counted as “war-crimes”, since they were committed “in the interest of the Axis countries”. On the other hand, the atrocities committed by the partisans were not “war-crimes”, since the perpetrators ultimately found themselves on the winning side. The Communist atrocities, therefore, were not the concern of the Field Marshal since they were not technically “war-crimes”, but he should have been concerned with the atrocities of the German security forces, since these were “war-crimes” committed by the ultimately losing side in an area of which he was in military command although, admittedly, he had no authority or power to prevent them. It was contended, further, that the Field Marshal should have been able to foresee the retrospective law which, some three years later, the victors would become minded to lay down and he should, therefore, have complied strictly with its requirements.

Even since war-crimes trials began in 1945 the British legal Press had been publishing from time to time letters enquiring what exactly was the legal principle or doctrine under which British officers stationed in Germany had acquired the right to sit in judgment on German subjects for offences which they were alleged to have committed when they were subject to the law of their own country. It is a remarkable fact that none of the learned contributors to the legal Press ever wrote supplying the answer to the question, whence these military courts acquired their authority. Yet the answer, first brought clearly to light during the Manstein Trial in 1949, was in fact very simple. At this trial the general public learned that the British officers entrusted with the duty of adjudicating on the charges brought against the Field Marshal for acts committed by him during the War were empowered by a Royal Warrant dated June 18th, 1945, which directed that prisoners of war in British hands charged with war crimes, defined as “violations of the laws and usages of war,” should be tried by British military courts.

For four years, every war-crimes trial before a British military court had begun with a formal challenge of the jurisdiction of the court which the prosecution immediately brushed aside by a brief reference to the terms of the Royal Warrant. Rarely, it seems, was the point seriously argued. The lawyers for the defence were foreigners, themselves liable to be sent to a concentration camp if they displayed inconvenient zeal, and the challenge was made by them pro forma and generally argued through an interpreter or in halting English. Because, in every case, the trials proceeded, the British public assumed this challenge to the jurisdiction had been adequately refuted.

How baseless was this assumption only became apparent, at least to the British public, at the trial of Field Marshal von Manstein. On the first day of the trial, Mr. Paget challenged the jurisdiction of the court to sit in judgment on his client. The accused, he pointed out, was a prisoner of war. A state of war still existed between Great Britain and Germany. Prisoner of war status is the right of every prisoner taken in war; it does not depend in any way upon the discretion of the captor. The Geneva Convention, to which of course Great Britain and all civilized states were parties, reaffirmed and laid down the long-established principle that a state detaining prisoners of war must deal with them in accordance with its own laws and regulations in respect of its own armed forces. Among the rights of a prisoner of war was the right to a fair trial. A fair trial is what a captor himself considers a fair trial for his own personnel. The prosecution was relying on the terms of the Royal Warrant of June 18th, 1945. But this document deprived the accused of many important rights which he would have enjoyed under British military law. In particular, he was deprived of the right to be tried by officers of rank equal to his own; the right to demand a precise statement of the offences with which he was charged; and the right to claim the protection of the rules of evidence, that is to say, he was not to be convicted on hearsay evidence. Finally, Mr. Paget appealed to the court not to be overawed by the fact that the document of June 18th, 1945, was labelled a Royal Warrant. In 1916, the House of Lords, in the famous Zamora case, had held that the seizure of a ship under a Royal Warrant was illegal because the seizure in that case was contrary to international law. The Royal Warrant was nothing but a government order. Responsibility for its terms rested on the government; as a constitutional monarch the King signed Royal Warrants on the advice of his Ministers.

Exceptional interest attaches to the reply of Sir Arthur Comyns Carr, K.C., leading Counsel for the prosecution. He began by declaring that he had listened to Mr. Paget’s submission “with considerable astonishment”. It went, he declared, to the root of this trial, a circumstance which he seemed to think was in itself an objection against it. Rather naively, he pointed out that it had become the practice of war-crimes tribunals to reject this submission; it had, in fact, always been rejected. He paid a tribute to the majority judgment of the American Supreme Court in the Yamashita case which sent that gallant soldier to his death. He argued that the right to a fair trial given to a prisoner of war by the Geneva Convention only applied to offences committed by the accused after he became a prisoner of war. In any event, the Field Marshal was no longer a prisoner of war since the British Government had seen fit to discharge him from the German army. Perhaps it might seem that much time and trouble had been wasted at Geneva in defining the rights and privileges of a prisoner of war if a prisoner only remained a prisoner of war at the discretion of his captors. The fact remained that if his captors decided to make a prisoner of war a civilian, they could then do as they pleased with him. Sir Arthur said that he had listened with regret to a King’s Counsel speaking slightingly of a Royal Warrant. This document has not been designed to prevent the accused from having a fair trial. It was perfectly right and proper that hearsay evidence should be admissible before a war-crimes trial tribunal because war-crimes are “of such magnitude that it would be impossible to apply to the proof of them the rules by which we are bound in a small case.”

It would be interesting to know what impression, if any, the latter argument made on the members of the Court. Even to Sir Arthur himself it must have sounded weak. If sound, it would logically follow “that evidence that would justify a conviction for murder might be insufficient to support a conviction for riding a bicycle at night without a lamp.¹

Mr. Paget admits, however, that he had little hope that the court would uphold his submission. It was, of course, rejected. To have decided otherwise would have been a reflection on every war-crimes tribunal which had adjudicated on the point during the previous four years. The court would have had no option but to dissolve itself; the prisoner would have left the dock and gone home; and the gallant officers assembled on the Bench would have returned to their military duties. Was it to reach so rapid and lame a conclusion that Lord Chancellor Jowitt had endured six months’ worry? It would have needed the combined strength of will of a tribunal composed of supermen to have reached so startling a conclusion. And the Tribunal before which the Field Marshal had been brought was not composed of supermen. It was composed of one Lieutenant-General, one Major-General, two brigadiers and three Colonels.

The composition of the court which decided that it possessed jurisdiction to try him was one of the three main disabilities imposed on the Field Marshal by the terms of the Royal Warrant. Under international law, as confirmed and laid down by the Geneva Convention, he was entitled to be tried by court-martial in accordance with British military law by officers of his own rank. All the officers appointed to try him under the Royal Warrant were of very inferior rank. This was a serious disability, since not one of them had held an independent command of an army or group of armies and, therefore, had had no experience of the difficulties with which he had been compelled to cope.

The second disability deliberately inflicted on the accused was that, in accordance with the Royal Warrant, he was denied any precise statement of the charges he would face when the trial began. The result is described by Mr. Paget as follows:

“When it came to the trial, the charges against von Manstein were 17 in number. They were summarized by a reporter who said that the prosecution had collected everything that occurred in the Eastern war and thrown it at von Manstein’s head.

What the prosecution appeared to have done was to list every incident which might contravene any law or usage of war and which had occurred in any area in which von Manstein had served. As this covered huge areas over a period of 4½ years of particularly ruthless war, the prosecution were able to list some hundreds of incidents. These incidents, or particulars as they were called, were then divided into 17 groups, and before each group some order or orders generally issued by the high command were referred to, and the allegation made that the particulars were the result of the orders. Then in front of the orders appeared a statement in varied terms, but to the general effect that von Manstein was responsible for the results of the orders, and finally, at the commencement of each charge appeared the words ‘contrary to the laws and usages of war’.