§ VISCOUNT MAUGHAM had given Notice that he would call the attention of His Majesty's Government to the problem of the punishment of war criminals after the conclusion of a permanent Armistice or a Treaty of Peace; and also move for Papers. The noble and learned Viscount said: My Lords, there is no doubt that this country is pledged, and so also are the United States of America, to the principle that retribution for war crimes is among the major purposes of this war. The Prime Minister and the President have made repeated declarations to that effect, 556 one or two of them since this Motion was put down on the Order Paper. It is important to remember that on January 13 last a Declaration was signed by the representatives of nine countries, at a meeting presided over by Mr. Eden at St. James's Palace, at which it was amongst other things affirmed that these nine countries placed among their principal war aims the punishment, through the channel of organized justice—I call your Lordships' attention to that—of those guilty or responsible for these crimes, whether they ordered them, perpetrated them or participated in them. There is no need for me, therefore, to argue the necessity for the steps which are there mentioned.
§ Some people may question the propriety of tackling the question now on the ground that we have not yet won the war, but there is no harm in letting the Germans know that in this House—not at all a bad mirror of the soul of Britain, and one in which there are no Quislings, and pacifists may be numbered on the fingers of one hand—we are resolved, however long and arduous may be the road before us, and whatever price we may have to pay, to go on until, with the assistance of our great Allies, we have brought the Germans to their knees and put the final end to the pestilence which the Nazi tyranny has brought over Europe. On the other hand, the reflection which we may easily give to this matter to-day will lead your Lordships' House to the conclusion that if the plague is to be stamped out, most of the war crimes must be punished as far as is humanly possible, and in my view we have got to begin before the end of the war, for I cannot too strongly state that delay will mean the escape of the guilty.
§ A good deal may be learnt from what happened after the last war in reference to the punishment of war crimes. As the materials are very difficult to get at, and as your Lordships would probably be unable to find them, I propose to take up a little of your time in telling you what did happen. At a preliminary Peace Conference a Commission of fifteen eminent jurists was appointed representing ten Powers charged to inquire into five matters mainly relating to German war crimes. They reported on the 29th March, 1919, but, unhappily, the American representatives did not agree with the majority 557 of the fifteen and presented an elaborate memorandum of their reservations. It was plainly due to this fact that the authors of the Peace Treaty, which was signed at Versailles on 28th June, 1919, included Articles 228, 229 and 230 in the Peace Treaty, which provided for the trial before Military Tribunals of persons accused of acts in violation of the laws and customs of war, who were to be sentenced to punishments laid down by law—not saying what law—and of persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers. If these acts were committed against the nationals of more than one Power the trials were to be before Military Tribunals composed of members of the Military Tribunals of the several Powers concerned. That was Article 229. Article 230 provided for what lawyers call discovery and the furnishing of materials necessary for the trial.
Now the Allied Powers were very anxious to punish the Kaiser, who had the distinction, if it be a distinction, of a separate Article in the Treaty all to himself, Article 227, under which
the Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly the German Emperor, for a supreme offence against international morality and the sanctity of treaties.
Some of your Lordships may remember some very eloquent speeches and articles on the text of "Hang the Kaiser," and the Press and public of this country and of the United States fully agreed with those speeches, but the Kaiser had bolted and was living in Holland. Article 227 of the Peace Treaty concluded with the words:
The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.
On the 16th January, 1920, a forcible letter, signed with the name of Clemenceau, on behalf of the Powers, was sent to the Dutch Minister, demanding the surrender of the Kaiser to be tried for premeditated violations of international treaties and a number of specified offences against the laws of war, and other barbarous acts, including the carrying off of young girls from Lille and unrestricted submarine warfare. On the 23rd January the Dutch Government replied refusing the surrender on the ground that Holland had, at all times, been a land
of refuge for the vanquished in international conflicts. Further epistolary efforts were made by the Supreme Council, but Holland stuck to her ground and the matter of the ex-Kaiser ultimately seems to have been dropped.
§ In the meantime a list of 896 war criminals, a substantial number, was handed to Baron von Lersner, the German Ambassador. Great Britain demanded 97, Belgium 334, France 334, and other countries various numbers. The list included the names of Hindenburg, Ludendorff, von Mackensen, Tirpitz, and Prince Rupprecht of Bavaria. However, the German Government said they could not comply with the request to surrender these men for trial owing to the great opposition which had been aroused in Germany to their trial abroad. They suggested that the accused should be brought to trial before the Supreme Court of the Empire at Leipzig and, after consideration by an Allied Commission, this was agreed to. This involved a departure from the Articles of the Treaty inasmuch as trials were no longer to be before Military Tribunals but before the legal Supreme Court at Leipzig.
§ The Allied Governments then selected, out of the 896 accused persons, 45 against whom the most serious charges had been brought. Of these seven names were contributed by our Government: three were those of Naval Commanders and four of military men charged with ill-treatment of prisoners of war. There was considerable difficulty in securing evidence and getting witnesses to go to Leipzig. Moreover, some of the accused had, not unnaturally, disappeared. Many of the witnesses, for instance demobilized soldiers in this country, were unwilling to go to Leipzig and appear before a German Court. After much delay, it was agreed, in February, 1921, that witnesses unable or unwilling to attend the trials at Leipzig should be examined at Bow Street in the presence of representatives of the accused and of the German Government and that their depositions should be transmitted to the Leipzig Court, and that was done. The trials were opened on 23rd May 1921. The lamentable story of the early trials is to be found in the report of the proceedings in the White Paper Cmd. 1450 of 1921. Unfortunately it is out of print. I therefore think I may take a very few 559 minutes in telling your Lordships what happened at the trials.
§ To start with, three of the accused submitted by His Majesty's Government had gone abroad or they could not be found; but the German Government submitted the names of two other naval officers, Lieutenants Dittmar and Boldt, who had by their action violated German orders. These were officers on board the U.86, commanded by First Lieutenant Patzig, who had disappeared. They had sunk the hospital ship "Llandovery Castle" in the Atlantic in June, 1918, but it so happened they had done it against orders, for the German Government had forbidden the sinking of hospital ships in that part of the Atlantic. They shelled a lifeboat crowded with survivors in the hope of destroying any evidence as to their breach of their orders, with the consequent loss of 234 lives. One of the boats, however, escaped in the darkness. The chart of the course of the submarine was falsified, the sinking of the hospital ship was not mentioned and the crew were all pledged to secrecy. These two men were plainly murderers without the excuse of certain other men who had escaped conviction at Leipzig because they were acting under obedience to superior orders. However, they refused to make any statement and they were sentenced on 17th July, 1921, to four years' imprisonment. The German newspapers appeared the next day with the headline "Four Years' Imprisonment for U-boat heroes." They did not express any sympathy with the victims. A singular fact which should be borne in mind is that Boldt escaped on 18th November and Dr. Dittmar in the following January. Then there were some defendants, who were proved guilty of dreadful brutality in prison camps, who were sentenced to such terms of imprisonment as four months and six months.
§ I want to economize your Lordships' time and so I will not go through all these cases, but I should like to mention one of the French cases, the only one that was successful. It was against a Major Crusius, who was proved to have murdered large numbers of French prisoners, many with his own hand. Many German witnesses, including a German medical officer, proved the murders. Crusius admitted these facts, but he said, as other prisoners did, that he was acting under orders from above. In that case they 560 were orders from General Stenger, one of the men committed for trial, who was acquitted. He was acquitted on the ground that the Court thought that Major Crusius had mistaken the meaning of some strong expressions used by the General. The General accordingly left the Court carrying bouquets of flowers supplied by the public. Major Crusius was acquitted on most of the charges on the grounds that he was not "master of his nerves." On one manslaughter charge—in reference to a time, I suppose, when he was master of his nerves—he was sentenced to two years' imprisonment. How soon he was allowed to escape I do not know.
§ While the trials were going on it became more and more apparent that the feeling of the Court was becoming more favourable to the prisoners because of the great public indignation that was being voiced in Germany against the trials taking place at all, and various Powers concerned did not submit a large number of their cases. In the result out of 896 prisoners mentioned in the Black List there were nine convictions. All received light sentences and most of the prisoners were allowed to escape. No person of any importance at all was convicted. The experiment of trials of Germans in Germany by Germans according to German law having broken down—to the surprise of very few people who understood the German mentality—your Lordships may be inclined to ask why no attempt was then made to try the criminals by Military Tribunals, in accordance with the provisions of Articles 228 and 229, to which I have referred. The truth, I think, is that three years had gone by since the Armistice and a good many of the most guilty men had disappeared. On the one hand we were sick and tired of the whole subject, and on the other the Articles were ill-considered and, I venture to think, impracticable.
§ The tribunals were to be Military Tribunals—in some cases of mixed national Armies—and bound to decide according to law. Who was to appoint them? Who was to arrest the prisoners and provide the gaols? What was meant by the phrase that the guilty were to be sentenced to punishment laid down by law? There was no British military law for trying, say, murder in Germany. The other nations, I am informed, had definite military laws in their own country, but they differed largely inter se. There was 561 no arrangement for the precise military law which was to be applied. If the sentence provided for the death penalty who was to execute it, and if for a term of imprisonment where was the prisoner to be gaoled? What State would enforce that provision? I am not surprised, myself, that the whole matter was dropped.
§ We have often been told that the descent to Hell is an easy one. The Germans seem to have found that the adage was true. The crimes committed by Germany in this war have been more numerous, more horrible and more widespread than in the last war, particularly against the Poles and Russians, the Greeks and the Czechs. The Italians also have done terrible things in the countries their Armies have occupied. Evidence of German atrocities comes from every country they have attacked, and the cry for punishment is universal. What ought to be done? We may safely conclude, I think, that trials in Germany would, if possible, be more futile than in 1920 and 1921, and if the criminals are not to be allowed to escape scot free, we must provide Courts to try them and all the necessary machinery for doing so. We must make up our minds whether the Courts should be Military Courts or Legal Courts and, if the latter, whether the crimes as far as possible should not be tried by the national Courts of the countries whose nationals have been killed or injured, or whether a great International Court should be set up to try at any rate a substantial number of these cases. Here I should mention to your Lordships that a crime such as murder, or any other serious offence against prisoners or civilians, is not the less a crime because it is also forbidden by International Conventions. I am not of course dealing—nobody is thinking of dealing—with the normal acts of war. There is, for example, no reason why the Polish Courts should not deal with the enormous number of murders of men, women and children committed in Polish territory by the Germans, or in Germany, for I understand that the Polish Courts have the necessary jurisdiction.
§ I see a great difficulty in attempting to try the ordinary crimes by Military Courts, as suggested in Articles 228 and 229, unless, indeed, there should be a permanent occupation of Germany. In our law there is no Military Court with such a power. Martial Law, of course, 562 is not law at all and our Military Law does not concern itself with such crimes as we are here considering. It seems to me much better, as regards offences against British subjects, to make provision for the trial of the alleged offenders before our own High Courts with their traditions and their practice and with experienced Judges to decide the matters. After all, it is not the job of military officers to turn themselves into Judges and to try such cases as I have dealt with. I should also mention that breaches of international rules, even when contained in Conventions or Treaties with foreign States, are not, legally speaking, crimes at all, though of course wanton murders and other like acts otherwise than in battle are not the less crimes because prohibited by such Conventions. In this country and in the United States of America the Legislature alone can constitute a legal crime, affecting the life or liberty of an individual. That authority must define the crime, attach a punishment to it, and declare or create the Court which shall possess the necessary jurisdiction. Unless the Legislature has done that a policeman cannot arrest nor a gaoler hold an alleged offender. A Judge cannot convict, nor can any punishment lawfully be inflicted. This, however, is not to say that a high tribunal could not be established with special jurisdiction to try, convict and punish offenders guilty of serious offences against the laws and customs of war.
§ At present Great Britain and the United States of America are not the countries most concerned. The atrocities committed in Russia, Poland, Greece, Czechoslovakia, and Yugoslavia are burnt in upon our minds. It is Eastern Europe which has suffered in various special ways, and I submit for consideration the question whether it would not, perhaps, be more convenient, more satisfactory, and, in the end, more just that the countries of Eastern Europe should set up their own International Tribunal for dealing with serious offences against the laws and customs of war committed against their own nationals, whilst those committed in Western Europe, including Holland, Belgium and Norway, should be dealt with by a separate International Tribunal. Our gallant Allies in China will, no doubt, deal with the matter in their own way. The opinions and wishes of those States whose subjects have 563 suffered most from the Hitler aggressions must be most weighty, and the question whether an International Court should be established with power to try certain acts which are not at present crimes in a juridical sense and to inflict punishment for them, should be largely determined by their wishes.
§ There is a clause in the Constitution of the United States which raises a certain difficulty for that country as regards the setting up of a tribunal to try crimes which have already been committed. The whole matter is discussed in the memorandum signed with the names of Mr. Robert Lansing and Mr. James Brown Scott, setting out the grounds for their dissent from the Majority Report of the Commission on War Crimes, to which I have already referred, dated March 29, 1919. I cannot take up your Lordships' time in further discussing that matter. There are great difficulties, however, which must attend a criminal trial before an International Court. I shall mention only that of language which may not occur on first sight to somebody who has not been concerned with the trial of people of this character. If we assume that only three countries are represented on the Bench, and that the prisoner is German, that will make four different languages in use, and it may be that everything said in Counsels' speeches, in the examination and cross-examination of the witnesses, and in the remarks or comments of the three or more Judges will have to be translated into three different languages. Necessarily, you would expect that there would be three different interpreters. I can imagine few more unsatisfactory ways of conducting a trial than to deal with it with all this translation holding up every question and every answer and every proceeding at the tribunal. It would take years for such a court to get through quite a small list.
§ However, I am concerned to speak to your Lordships to-day chiefly on the subject of trial before ordinary juridical Courts of Law for heinous crimes committed on the nationals of those countries represented by the Courts. I urge your Lordships, at the outset, to bear in. mind that the most urgent primary difficulty will be to obtain the surrender of the culprits, the more eminent of whom will have fled to neutral countries. With that in mind, it is clear that new under- 564 standings or conventions with those countries will be necessary and should be arranged without unnecessary delay. I had proposed to show your Lordships something about existing defects in these conventions but reflection has led me to the conclusion that it would be unwise to discuss these matters in public, for they require diplomatic discussion of a very delicate character. In my opinion, however, it is clear that if we are to be successful in our efforts to punish war criminals before our Courts, we should be careful to confine the crimes to acts which have been treated as criminal in all civilized countries for hundreds of years. I refer particularly to such crimes as murders (including putting hostages to death), infliction of serious bodily injury, torture, rape and piracy on the high seas, those things being done otherwise than in actual fighting.
§ Subject to the difficulties as to the jurisdiction of the Courts, which I shall mention in a moment, I am unwilling to believe that any civilized country will be desirous of giving the right of asylum to any of the culprits who have committed one of those dreadful crimes. In our country there is a difficulty of a curious nature, which I must bring to the attention of your Lordships. The jurisdiction of the British Courts—and of several Continental Courts, too—is confined to crimes committed in their own countries. Sometimes this has been extended by Statute, as here under the Act of 1861, to major crimes committed by our own nationals—that is to say by Britons upon Britons. But, at present, we have no power to try Germans for the murders of any British people, or other people not being Germans, in Germany or in German-occupied territory. I want to to make this perfectly clear. A German who has committed the crime of murdering one or more Englishmen in a German prison camp, or otherwise in Germany, may come here, after the war, and live in luxury in a Mayfair hotel, disporting himself in this city without anybody having the right to touch him. Our Courts have no jurisdiction to try him for that offence. That is so in other countries. I believe it is the case in the United States of America, mutatis mutandis.
§ It is something which we ought not to allow to. continue; our Courts must be given jurisdiction to try persons who have committed the serious crimes which I 565 have mentioned against British subjects, even though those crimes were not committed on British soil. Your Lordships will perhaps be relieved to hear that the Germans, who often refer to International Law, cannot object to our Courts possessing such jurisdiction, since I am informed by an expert in German law that their own Courts have the corresponding jurisdiction. Nor is there anything in the rules of International Law to prevent a State from increasing the jurisdiction of its Courts over its own subjects, and doing so with retroactive effect. I can give high authority for that statement of the views of international lawyers if I am required to do so. I submit the following principle for the consideration of the Government, and in particular of your Lordships: that the very serious crimes I have mentioned should, generally speaking, be tried by the national Courts of the victims, whether the actual crime was committed in Germany or in the land of the victim. Thus, a German who has murdered or injured a Pole, whether in Poland or in Germany, should be tried by a Polish Court according to Polish law. A great number of difficulties will be avoided if this principle is adopted.
§ I must now return to the subject of an International Court, supported by the necessary legislation given by the Legislatures of the various Powers concerned. I shall leave on one side the question of whether such a Court should deal with the trial of specified offenders, such as the present rulers of Germany, and especially with barbarous breaches of International Law. Even so, there are offences which cannot, I think, effectively be tried before national Courts. I will mention a few: crimes against persons, and in particular against Jews, who have been deprived of any nationality; cases of mass murder as the consequence of an order, such as the drastic removal of foodstuffs ordered by a German officer or by some sort of German tribunal, necessarily resulting in wide-spread starvation of the population; similar acts necessarily causing death by exposure; orders for the removal of numbers of young women, sometimes to an unknown destination and obviously for the purposes of prostitution; cases where two or more Courts of different Allied States have jurisdiction; cases where it is uncertain which of two or more such Courts have the necessary jurisdiction; and finally, cases where, owing to political un- 566 rest in the country where the crime was committed, it may be difficult to hold a proper trial, and that country may request the International Tribunal to accept the duty of trying the case. Those are only examples. In all these cases it seems to be desirable that a special International Tribunal, however cumbrous its machinery may be, should be set up and given the necessary powers, rather than that the criminal should escape for lack of a suitable tribunal. I think that almost all the international jurists in this country at the present time—and there is a great number of them—are at one on this matter.
§ The question of the nature and powers of the proposed International Court is one on which many views may be expressed, and I do not want to take up your Lordships' time by going into it in any detail. There are certain important matters, however, which I should like to suggest for consideration. Firstly, the Court should not attempt to impinge upon the jurisdiction of the national Courts which are able and willing to try offenders. Secondly, the crimes to be tried should be limited to those which are so serious as to shock the conscience of mankind, such as those I have already mentioned. Thirdly, the Tribunal must not be asked to try thousands of prisoners; the only result of giving it an enormous list of criminals to try would be that the attempt would prove to be futile, owing partly to the difficulty of obtaining the necessary evidence and partly to the great length of time which the trials would occupy. After two or three years have elapsed it would be difficult, if not impossible, to obtain the necessary evidence and to procure the surrender of the prisoners from Germany or from neutral countries, even if they could be found. It is easy to pretend that a culprit cannot be discovered, and it is very difficult for the country who requires his production to prove the contrary. Moreover, after a certain number of years, as happened after the last war, everybody will be sick and tired of the whole matter, and will want to close the horrid account. The concurrence of the neutral countries will, of course, be needed in some cases, and that would not be possible, or at any rate would be very difficult, unless the action is limited to crime so serious that the perpetrators cannot put forward any reasonable claim to a right of asylum.567
§ I must touch on what is a cognate matter, although it may not have precisely the same character as the matters with which I have been dealing. I refer to the restoration of property confiscated by German orders from occupied countries. This must be left to Army Commissions; that is, to special bodies with military assistance. The property in question includes not only works of art but libraries, the equipment of schools, scientific instruments, machinery and plant from factories, locomotives and rolling stock of railways, steel in many forms, and indeed, vast quantities of property belonging to State museums, universities, churches, charitable institutions, schools, hospitals and factories. So far as this property cannot be found, the Restitution Commission must be authorized to take equivalents, and to hand over these equivalents to the countries which have been despoiled.
§ I do not expect a detailed answer to the general question which I have raised, and indeed I should deprecate any hasty decision on matters with which, as I have said, in my opinion the Allied countries must be primarily concerned. We are ourselves concerned to see that there will be jurisdiction to try in this country, before our own Courts, inhuman acts committed against our nationals in Germany, and that power our Courts do not at present possess. I hope that no one will imagine that in giving reasons for confining the scope of the effort to punish war criminals in the way I have suggested, I am doing so for any reason whatever except a desire to achieve the maximum practical result. I am certainly not influenced by any sympathy with those Germans who have, in the course of the war, wholly disregarded not only the rules and conventions of International Law, but also the laws and customs of civilized humanity. The gloomy monomaniac Hitler, and the horrible entourage which he has gathered around him, and also, I am afraid, the great majority of the Germans in the Fighting Forces and the Gestapo, are all marked by this single characteristic, that their actions reek of cold-blooded cruelty. They have indeed, in the course of seeking to achieve their desire, shut and barred and bolted the gates of mercy on mankind. The men guilty of these crimes pollute the earth, and they poison the 568 atmosphere which they breathe. In my judgment they ought not to be permitted to live, and if it proves to be impracticable to get more than a small number of them brought before a Court of Justice we may yet by proper measures and arrangements make it impossible for them after the war to hope for any future existence except that of a precarious, hunted, dishonoured life in one of the less civilized countries of the world. I beg to move.
§ LORD ADDISON
My Lords, I am sure the House, indeed the country, is indebted to the noble and learned Viscount for bringing this subject before us and for the study which he has given to it. I am not competent to examine or discuss the various technical questions which he has mentioned. I think it is the earnest and passionate desire of all of us that the experience that we had in this matter at the conclusion of the last war shall not be repeated. I am not competent to make suggestions as to the form of the tribunal and the methods of giving it appropriate powers, but I think we shall all be agreed, from the recital which the noble and learned Viscount has given to us, that this is not a matter which should be delayed. It clearly requires attention beforehand. It requires agreement between the different Allied Nations, and it requires, I do not doubt, special Acts to be agreed upon, and the form of them. None of these things can be done quickly. We know that even the law's delays are proverbial, but the preparation of an agreed system of administering the law among a great diversity of nations obviously presents many opportunities for postponement and delay; and I hope very much that in the statement we shall, I trust, get later on from the noble and learned Viscount on the Woolsack, we and all those who think as we do will receive some definite encouragement to the effect that this matter is going to be taken in hand without delay.
I was glad that the noble and learned Viscount mentioned the abuse of the right of asylum. We see reports in the papers—if they are true—that many of these leading Nazi ruffians apparently have already provided themselves with places of refuge in one or other of the few neutral countries left in the world. How the proceedings should be taken or what should be done in advance in regard to those other countries—Sweden or Switzerland, for example—I am not competent 569 to say, but of one thing I am sure, that we ought not to allow these villains to escape from proper trial and, if need be, conviction. The right of asylum was grossly misused after the end of the last war, and the proceedings were tedious and complicated and tiresome. What happened then would certainly happen again and, as the noble and learned Viscount said, everyone would become sick and tired of the whole subject. Justice would be thwarted unless arrangements were made and agreed upon beforehand for prompt and effective treatment. With these general remarks I would like to say that we will give what friendly support we can to the Motion of the noble and learned Viscount.
THE MARQUESS OF CREWE
My Lords, the noble and learned Viscount has brought forward this most important question in a speech in which we were all, I am sure, deeply interested, full of knowledge and experience; and I hope—and I think the noble Lord who has just spoken hoped—that it is not presumption on the part of those who have had no special legal training to take some part in the debate. The noble and learned Viscount early in his speech spoke of analogies to be drawn from the experience in the last war. We are always being warned, so far as operations are concerned, by sea, land or air, whether it be a matter of strategy or of tactics, not to pay too much attention to what happened in the last war, for it would be most dangerous to do so, and I confess I think that in this matter also the circumstances are so different from those which obtained after the 1914–18 war that not very many useful lessons can be drawn from what happened then.
What exactly is meant by, a war criminal? There is a class of person who did not exist to any extent, popularly known now by the name of a Norwegian politician which, rendered into English, made an admirable new term for treason and treachery. Treason is undoubtedly a crime and may be a war crime, and there may be some cases in which those treasonable subjects of occupied countries have actually assisted, or at all events condoned, some of the war crimes committed by the occupying Axis forces. But those cases obviously must be left to the countries themselves to deal with. Poland, Norway, Czecho-Slovakia, Greece—all 570 those countries must deal with their own treasonable subjects in their own way. So far as France is concerned, we all feel that the spineless poltroons, whose collaboration has brought the name of France to a lower level than it has reached in a thousand years of history, must be dealt with by Frenchmen themselves. That is one class of what might be called war criminals.
Then there is the class of statesmen and rulers of whom the noble and learned Viscount instanced the case of the Emperor William at the conclusion of the last war. Many of us remember the clamour that was raised then, and the noble and learned Viscount has described precisely what happened in the case of the demand made to the Dutch Government for the surrender of the Emperor William. In my opinion the Dutch Government were perfectly right to refuse the surrender of the German Emperor. His trial would have been a great inconvenience to the Allied Powers, and the question of the proper punishment of a man who, many of us believe, did not at all want the war because he was afraid of it, would have been very difficult to decide. Now it seems to me the question is entirely different—that the ruling powers of Germany and to some extent of Italy have piled up a degree of personal guilt which it is very difficult to exaggerate. As to what steps would have to be taken to deal with these men, it is hardly possible to contemplate at this moment the form of International Tribunal before which they should be brought. Therefore I do not attempt to discuss that question further. There is also the very much larger class of those who are in a more general and popular sense described as war criminals—that is to say, persons who have been guilty of acts of cruelty contrary to the generally accepted laws of war and, in some cases, guilty of ordinary crimes of the most heinous sort.
The noble and learned Viscount gave us a most interesting account of the abortive trials at Leipzig. It is obviously clear that there can be no repetition of any attempt to institute a tribunal of that sort either in Germany or in Italy. I remember quite well that Lord Hanworth, who was at that time Master of the Rolls, and of whom many of your Lordships will have pleasant recollections in this House, told me he was impressed by the sense of fairness and dignity which animated the 571 Judges who tried those cases. From what the noble and learned Viscount has just told us, those qualities do not seem to have succeeded in producing a very marked result in the way of just administration of the law. However that may be, it is quite clear that there are no Judges of that calibre in Germany at this moment, unless perhaps there are a few in concentration camps. Therefore that question can be passed over. The noble and learned Viscount has expressed an opinion as to how these criminals ought to be tried. I confess I was sorry to hear that he does not think it can be done through Military Tribunals. I should have thought that Military Courts, set up at convenient places all over the European Continent, would be able to act with greater promptitude—and, after all, prompt action is of the essence of the whole affair—than would be possible if the prisoners, German or Italian or whatever they may be, were taken to be tried in the country whose citizens have been the subject of outrage.
I confess that trials according to our British tradition, taking place in this country with the whole dignified apparatus of our High Court and with possible recourse to appeals, strike me as being too circuitous and lengthy a process to be applied to these particular cases. In this country we are proud of the fact that a man brought before a Court of Law must be regarded as innocent unless absolute proof is forthcoming that he is guilty. I well remember many years ago a case which created a sensation at the time, at the trial of which the prisoner was rather unexpectedly acquitted. It so happened that a few days later I was staying in the same house as the learned Judge who had tried the case—one of the most experienced of Judges in criminal cases. He told us he had never been so proud of a jury in his life because, he said, without exception they believed the prisoner guilty of murdering his wife, but they also agreed that the requisite degree of proof was not available. If the case had been tried in Scotland the verdict would have been "Not proven."
I am certainly not in favour of any form of indiscriminate trial, one not depending on clear evidence, but I think that care can be overdone, and as I happen to have had the unusual experience 572 of being both at the Colonial Office and the India Office, I confess it has struck me on several occasions that the application of our strict rules to persons who have not been brought up in the traditions we have, can often be misunderstood and can lead many times to failure to secure justice. Therefore, with all deference to the noble and learned Viscount, I greatly regret that some more prompt and immediate form of trial of the nature of a Court Martial cannot be applied in all these cases; but I say this, of course, with the utmost deference to the superior knowledge of the noble and learned Viscount. I have nothing to add to what I have said, but I must express great pleasure in the fact that the noble and learned Viscount has brought forward this matter at an early date, for I am sure it is one which ought to be very carefully considered owing to the extreme complications which surround it in view of the great number of nations, concerned.
§ VISCOUNT CECIL OF CHELWOOD
My Lords, I desire at the outset to express my own personal obligation to my noble and learned friend for the speech which he delivered—a sentiment which I am sure will be shared by every member of your Lordships' House—and also to say that it would be a gross abuse of your Lordships' patience if, after so careful a study of the subject as he has made and given to your Lordships, any of us made long orations on the subject. Yet, with your Lordships' permission, I must say something, for I feel that this is a very important question. I am not quite sure that people recognize how important it is. Let me explain that I do not propose to deal with the question to which my noble friend, Lord Crewe, referred, the question of what are ordinarily called Quislings, because that is evidently a matter for each country to settle itself: each must deal with its own traitors. That does not come in my purview of the question, nor am I going to ask your Lordships to consider another subject on which Lord Maugham touched—namely, that of restitution of goods or property. I will confine myself entirely to the question of crimes, as understood in the ordinary popular sense of that word, and the need for taking action even now, as far as it can be taken, in order to secure that this question shall certainly not receive the treatment that a similar question received at Paris in 1919.
573 There seem to me to be very strong reasons why we should deal with this matter effectively. There is, of course, the obvious reason that you must satisfy the demand for retribution which pervades the whole of Europe, and particularly the occupied countries, which to anyone who has taken the trouble to read accounts of these: horrible crimes—and they really are incredibly horrible crimes—is not only natural but, one cannot refrain from saying, laudable also. Unless something is done to meet that passionate feeling you will certainly be exposed to, among other grave evils, something in the nature of wholesale massacres of persons who may be thought to be either Germans, or sympathizers with Germans, wherever they can be caught and whatever their guilt or innocence may be. I believe the only way you can hope to prevent such a very disastrous result of our victory is to convince the people, who naturally feel with extreme bitterness about these matters, that the criminals are going to be properly, decorously and judicially punished. There is also the other motive for punishment, the motive of the prevention of crimes of this character in future, which also must not be forgotten. But I do not propose to dwell upon that point in what I desire to say to your Lordships this afternoon.
There is, however, one third reason to which I venture to attach very great importance. To my mind, and I think to the minds of your Lordships generally, one of the most disastrous results of the Nazi action and Nazi creed has been the destruction of what used to be an almost universal respect, at any rate in words, for law and justice. I think that is a most terrible evil that has happened to the world, because on the supremacy of the law depends all the great structure of liberty and political freedom which we have erected in this country and which has been followed in so many other countries of the world. The thing we must keep before our minds when we come to make peace is the need that that principle shall be re-erected as far as we can re-erect it, so that it will be generally accepted as the motive and guide of political and international action in the future.
These three purposes, retribution, prevention and respect for the law, require certain conditions if we are to carry them out as they ought to be carried out. In the first place, in any system of trial that we establish or recommend, we must 574 certainly desire to see something in the nature of certainty, so that criminals will be punished according to the evidence given against them. It is for that reason—and I shall have to say a word or two on it in a moment—that I am afraid I do not share the admiration, or rather preference, of my noble friend Lord Crewe for Military rather than Civil Courts. I do not want to say a word against Military Courts, but I do not think they will be the best to deal with this situation. Not only must there be certainty but—here I heartily agree with the noble and learned Viscount, Lord Maugham—there must be rapidity. Last time there was neither certainty nor rapidity in the punishment of the criminals that were then arraigned. In addition to certainty and rapidity we must aim—I do beg noble Lords to agree with this—at impartiality in the trial even of men charged with these crimes. I know there is a very natural feeling that the great thing is to get the criminals punished. That is a very important thing, no doubt, but in the interests of respect for law, in the interests of prevention of crime in the future, in the interests of retribution itself, the essential thing is not so much that criminals should be punished as that innocent people should not be punished. That is true even in this case.
There may be people who take the view that every German is guilty and therefore it does not much matter whom you try or do not try, but I do not think that is a view which will commend itself to your Lordships. You will feel that these crimes, these horrors having been committed—we hope they can be brought home to individuals—it is very important that only those who have committed the crimes should be punished. We have in this country built up elaborate safeguards in our Criminal Law to protect the innocent. My noble friend the Marquess of Crewe thinks that for certain purposes they are too elaborate. I hesitate to disagree with him, but I hope he will reconsider that opinion. I admit that I am almost a fanatical admirer of English law and English justice. I believe it is the best thing of the kind that has ever been created in the world, and, though of course it has defects, those defects are far less than in any other system of law with which I am acquainted. I do not want to throw away that experience. It has enabled us to have an extra- 575 ordinary freedom from crime in this country. It has enabled all those who have suffered from crime to feel that their grievance is going to be properly and justly tried. It has promoted respect for law and justice, and it has been of infinite value. Of course there are many difficulties. Anybody who has given five minutes thought to the question must know that, and I do not propose to ask your Lordships to examine them here and now.
Primarily these are matters which the Government must examine with their expert advisers, and though I think your Lordships may be able, and I hope will be able, to give great assistance to any Government by suggestions made in debate, in the end it must be for the Government to decide these difficult questions. There is the question, for instance, of jurisdiction to which the noble and learned Viscount, Lord Maugham, referred. There is the question of post-war legislation, the question of appeal, the question of the surrender of culprits by the countries to which they belong, and there is the question which my noble and learned friend I think a little exaggerated, if he will allow me to say so, the question of languages. That is a question which, of course, has to be dealt with in every international proceeding and I do not think it has proved incapable of solution. All these questions will have to be considered very carefully when it comes to working out a definite detailed plan, which I hope we shall work out before we have to enter the Peace Conference. On that point I find myself in very close agreement with what the noble Viscount says.
I am satisfied that both practically and theoretically the great mass of this kind of crime ought to be dealt with by the national Courts of those countries whose nationals have been the victims of the crimes. I see no objection to that, and I think if there are legal objections they could probably be put right very rapidly by the necessary legislation. I am sure that will be a practical way of dealing with them and I venture to say to my noble friend Lord Crewe that I do not think there ought to be any delay. The ordinary criminal trial in this country is generally carried through with great expedition and normally it does not last more than a very few hours. These 576 cases, which, so far as they are looked at from the point of criminality, are extremely plain—the simple question will be whether you have got hold of the right man—ought to be capable of being tried with rapidity. I think they would be in this country and I think they could be tried with equal rapidity in other countries.
I also agree that there must be for certain kinds of crime some International Tribunal. One of the things which will have to be considered carefully is exactly how that International Tribunal is to be constructed and what crimes ought to come before it. It would be a futile and not very dignified proceeding if you tried one member of the present Government of Germany for a murder because the result of the action he took generally was to produce the murder of British subjects, whereas it was perfectly well known that the real thing of which he was guilty was not so much the crime of a particular murder but mass murder caused by his reckless, wicked and shameful proceedings. Therefore this kind of crime, I think, will have to be tried by some International Tribunal, and that observation applies particularly to cases where there may be a doubt as to whether any single country would have jurisdiction to try them. However, I do not want to go into details of the Courts that are to try these criminals. I quite recognize that there is a great deal to be considered, and I hope your Lordships will be kind enough to treat the few words I have said as merely suggestions, not as a fixed plan, because I think that must be left to the Government to elaborate.
What I want very much to urge on the Government is that they will not do what was done in the last war—leave the matter without any definite examination, still less definite conclusion, until the last moment. My recollection is that there was very little consideration given then to the question of what was to be done with war criminals beyond rather rhetorical demands to hang the Kaiser. The result was that when we got to Paris I doubt whether we had any definite and precise plan to put before the Commission that was appointed to consider the matter. That must not be so again. We must have a plan and that plan must be worked out in some respects—as my noble friend Lord Maugham has pointed out—before the Peace Conference, so that 577 we shall know exactly what we want to do. We certainly ought to consider in advance such questions as the nature and composition of International Tribunals and what kind of people should be asked to sit upon them.
That is all I need trouble your Lordships with to-day. But I will just add this. I am satisfied that this is a matter on which very deep interest is excited. That interest is very considerable even in this country, and it is far greater, as is natural enough, amongst the residents and nationals of the countries which have been occupied by German or other enemy troops. They feel and suffer most profoundly. I think it is of the utmost importance that that aspect of the matter should not be forgotten, because I am satisfied that on the settlement of this question not only will the fate of the criminals depend, but it may be that it will have very far-reaching effects on our relations with other countries of the world.
§ THE LORD CHANCELLOR (VISCOUNT SIMON)
My Lords, there will be general agreement that my noble and learned friend, Viscount Maugham, has introduced to-day a most grave and difficult matter. We all, I am sure, are grateful to him for the great pains that he must have taken before he presented his acute analysis of this problem to the House, and for all the research which he has made into what is undoubtedly a very complicated subject. I would like, however, first to say how deeply and sincerely I agreed with the emphasis which the noble Viscount, Lord Cecil, has put upon the importance of this matter. Hitler has recently proclaimed that there is no law in Germany except his will. If anybody were to be so foolish as to forget the lessons of the Peace Treaty after the last war—to which our attention has been drawn—and to suggest that there were now some impartial tribunals in Germany that could be asked to deal with this matter, surely it must be apparent that there are none. There is not a single judicial authority in Germany from beginning to end which is anything more than an instrument, willing or unwilling, of the Führer's will.
In another respect the noble Viscount, Lord Cecil, put his finger upon a point which moves me, at any rate, very deeply. I know from contacts which I 578 have had with the representatives of the smaller European Allies, whose Governments are now in London, that this subject is to them one of passionate importance. They read of their own relations, friends and fellow-countrymen being treated in horrible ways, and one of the matters to which they anchor hope is that we may find the means, when this war ends, of showing that that sort of thing does not pay. I therefore approach this question with real feeling as to its importance, and with a great desire to contribute anything I can towards its solution.
I have, as will appear in the course of my remarks, some observations to make, some announcements to make, which represent the views not only of this Government but also of friendly Governments in alliance with us, and I therefore do not propose to delay very long in discussing the more technical side of the matter which my noble and learned friend Lord Maugham quite naturally, and very instructively, analyses. It is perhaps a dangerous thing to express even a provisional preference, but it has been interesting to compare the attitude of my noble and learned friend Lord Maugham with that of the noble Marquess, Lord Crewe, and the noble Viscount, Lord Cecil, on at any rate one of the topics raised—should we put our main reliance upon Military Courts, or upon national Courts, or upon some new entity which would remain to be created, which is ordinarily called an international Criminal Court? I think, if I may say so with great respect to him, that I found myself much attracted to the practical good sense of the noble Marquess, Lord Crewe, when he observed that Military Courts at any rate could act quickly. While I was pleased to bear from the noble Viscount, Lord Cecil—who must of old times know the subject at first hand—that we may also expect promptitude from British Criminal Courts, I am not entirely convinced that the rate of procedure in the Criminal Courts in all the Allied countries is quite so rapid as ours.
At any rate, let me say this on the subject of Military Courts. I take it to be perfectly well-established International Law that the laws of war permit a belligerent commander to punish by means of his Military Courts any hostile offender against the laws and customs of war who may fall into his hands wherever be the 579 place where the crime was committed. I think that the authorities who spend their time in studying the principles of International Law—and they can be of great help to us here, atlhough the subject itself has of necessity fallen into some disuse—would confirm that proposition. In view of the fact that prompt action is one of the first essentials, I cannot help thinking that the victorious Armies in the field—or the Navies—with this undoubted mandate conferred upon them might very well turn out to be the bodies that would provide very effective and prompt working tribunals for dealing with many of these horrible cases. But I do not shut aside the alternative to which the noble and learned Viscount, Lord Maugham, drew our attention—what I think he called the national Courts.
National Courts, in my view, are equally entitled to exercise whatever criminal jurisdiction would be conceded to them by International Law. Here I would emphasize a distinction implicit in my noble friend's remarks, although it is of a slightly technical character. The real question, in relation to national Courts, is not so much whether the domestic law of a particular nation has already conferred upon the particular national Courts concerned a particular jurisdiction. It may not have gone to the full length which Intenational Law would recognize and permit. The important question is this: what is the ambit of the jurisdiction which might by International Law be conferred upon them, as for example, in the present case, by Parliament here actually legislating to enlarge, within permissible limits, the jurisdiction of our Courts to deal with crimes committed abroad?
I will venture to make one observation, purely provisional and tentative, on the third class of tribunal to which attention has naturally been drawn, and which both the noble Viscount, Lord Cecil, and the noble and learned Viscount, Lord Maugham, discussed. I agree, if I may say so, with the noble Viscount, Lord Cecil, that the main difficulty in creating and putting to work effectively this conception of an International Criminal Court is not the difficulty of language; but let nobody run away with the idea that this is an easy conception. It is a very easy conception to make speeches about in general terms, but it is an ex 580 ceedingly difficult matter to deal with if one desires to face and to try to overcome the practical difficulties. The composition of such a Court is not going to be a very easy matter, especially when there are so many belligerents. Strictly speaking, I do not think that it ought to be called an International Court; it ought to be called a United Nations Court, or an Allied Court, for, unlike The Hague Tribunal, or bodies of that sort, it does not really aim at staffing itself by Judges drawn from, amongst others, the enemy countries, or, I should think, the neutral countries.
Then, when you have created this novel tribunal, you still have to face the question of what is the code of law which it is going to apply. I think myself, as a man who has spent a good deal of his life in the practical business of the law, that one of the greatest difficulties of all, which I dare say to a layman seems comparatively unimportant, would be procedure; for the procedure which is understood and followed in a British Court is completely unlike the methods which are followed elsewhere. There may be a great deal to be said for both views, but before your Court can even start you have to decide what your procedure is going to be. Therefore, without in the least wishing to pour cold water on the idea—and indeed, I see the importance of the point made both by the noble and learned Viscount, Lord Maugham, and by the noble Viscount, Lord Cecil, regarding exceptional cases—I think that we shall probably be wise to put our main trust, as far as a tribunal goes, in tribunals which do not call themselves international
There is one other observation which I should like to make before I enter on the positive statement which I am anxious to put before your Lordships on this most important subject. My noble and learned friend Lord Maugham referred to extradition. He warned us—and he was well justified in warning us—that this is one of the most complicated topics which can engage the attention of anybody, at any rate as far as the different treaties are concerned. Indeed, a very limited number of people would claim to be anything like completely competent to deal with the whole subject. The observation that I wish to make is this. There is not, as many people suppose, any private right, recognized in International Law, called the 581 right of asylum. That is to say, the fugitive—the criminal—who manages to get over the border into some other country, is not thereby by International Law entitled to claim to stay there. It is quite another question to ask whether the country to which he has fled will be willing to give him up; and no doubt a country is obliged to give up a fugitive only if the case falls within an existing extradition treaty, which defines the relations between the country which has got him and the country which wants him.
With very great respect, however, it is fallacious to suppose that people who run to the ends of the earth thereby acquire a right of asylum. It is perfectly competent for the country which receives the criminal, whether there is an extradition treaty or not, if that country thinks that it will be fulfilling its duty to the world, or if its conception of public policy requires or justifies it, to hand the criminal over. The Hague Tribunal upheld that very proposition long ago, in a case which I remember. But we need not deal with technicalities, and therefore, although I wish to make no further observations about extradition, I venture to think that, in discussing this subject, it is rather important not to encourage the idea that everybody who gets away into some other land thereby acquires a sort of right to stay where he is, which is invaded and denied him if the country that wishes to have him handed over applies for him.
I should now like to tarn to another aspect of this matter, and I confess that the aspect which I am now going to emphasize is one which I, at any rate, think is of the greatest practical importance; and yet in this most interesting debate it has not received much attention. It is this. If, this time, there is going to be, after the victory of the United Nations, due punishment of these abominable war crimes, perpetrated in breach of the laws of war by enemy nationals and for which enemy individuals must be held responsible, it would be a grave mistake to concern ourselves at this stage merely with the discussion of the most appropriate tribunal to deal with such charges, or with the minutiae of juridical analysis. Whatever the tribunal may be, there are two pre-requisites without which no tribunal for dealing with war crimes can effectively act, and these two conditions will not be satisfied unless 582 definite steps are taken to that end. What are they? The one is the recording of evidence, and the other is securing the presence of the accused at the trial. We can all discuss these fine points about the right Court until the crack of doom, but, unless the criminal tribunal has got those two conditions satisfied, it cannot exercise its powers. No criminal tribunal can effectively exercise its powers unless it has physically before it the person charged—because this is a criminal proceeding—and unless there is available for it in some form the proof which is alleged to establish the crime. Of course I entirely agree with my noble friend Lord Cecil that, though feelings are naturally deeply stirred here, we have the most solemn duty to hold strictly by the rule that people shall only be punished because they are proved to be guilty.
Now these two matters which I have ventured to call to your attention raise questions which for some time past have been occupying the attention of His Majesty s Government and which, after being closely studied have been the subject of communication with others of the United Nations; and, thanks to the consideration of my noble and learned friend, who was good enough at my request to postpone the day for the discussion of his Motion, I am now in a position to make on behalf of His Majesty's Government an announcement on both those points. And it will be seen from what I am about to say that the view we take is not the view of ourselves alone.
Firstly, then, as to the collection of the necessary evidence. The proposal is to set up with the least possible delay a United Nations Commission for the Investigation of War Crimes. The Commission will be composed of nationals of the United Nations, selected by their Governments. The Commission will investigate war crimes committed against nationals of the United Nations recording the testimony available, and the Commission will report from time to time to the Governments of those nations cases in which such crimes appear to have been committed, naming and identifying wherever possible the persons responsible. The Commission should direct its attention in particular to organized atrocities. Atrocities perpetrated by or on the orders of Germany in Occupied France should be included. The investigation should cover war crimes of offenders irrespective of 583 rank, and the aim will be to collect material, supported wherever possible by depositions or by other documents, to establish such crimes, especially where they are systematically perpetrated, and to name and identify those responsible for their perpetration.
It is possible that your Lordships may have heard on the wireless, I think only two nights ago, an account given by a Norwegian who had just escaped from Oslo of the treatment he received in the Gestapo House there. He gave, as I remember, the name of the man who had directed these cruelties upon him. Well, it seems to me the United Nations Commission might think that a very suitable case promptly to record. Of course we all realize that it may well be that the testimony and proofs will have to be supplemented later on, but it is hardly necessary to point out how valuable information promptly collected will be for the work of any tribunal dealing with the subject hereafter. It is not only the experience of all of you but it is a common difficulty in a lawyer's life, when he is endeavouring to establish whether a piece of testimony is of weight and accuracy, that that testimony has become stale and smudged by the passage of a long time before it was recorded.
Now I have made a statement which I feel certain greatly interests all your Lordships, but I have to make a further statement which will emphasize its importance. A corresponding statement as to this proposed Commission for the Investigation of War Crimes is being issued in Washington by the President of the United States this afternoon. This proposal, therefore, has the joint support of the Government of the United States and of His Majesty's Government. It has been communicated to the other United Nations directly concerned, including, of course, our Soviet and Chinese Allies, the Dominions and India, and the Fighting French, with a view to obtaining their concurrence and co-operation, and already we have received from the Allied Governments established in London and from the French National Committee replies warmly approving and adopting this proposal.
The ambit and purpose of the United Nations Commission for the Investigation of War Crimes—that is to be its title— 584 will be clear from what I have already said, but to avoid any misunderstanding and to take away any possible excuse for misrepresentation in enemy quarters, His Majesty's Government wish to add this—and a statement to the same effect is, I understand, being issued at this moment in Washington by the United States Government. In making this proposal for an investigating Commission the aim is not to promote the execution of enemy nationals wholesale; the aim is the punishment of individuals, obviously very few in number in relation to the total enemy population—individuals who are proved to be themselves responsible, whether as ring-leaders or as actual perpetrators, for atrocities—atrocities which violate every tenet of humanity and have involved the murder of thousands, of tens of thousands, of innocent persons.
Our object—and I wish to emphasize the point, for I am sure it will have your Lordships' warm approval—is not to undertake or encourage mass executions but to fix these horrible crimes upon those enemy individuals who are really responsible, and who ought to be dealt with as criminals in respect of them. Here I will borrow and adopt an observation made just now by the noble Viscount, Lord Cecil. I am persuaded that it is only by the carrying out with complete impartiality of some such system as this that we could contribute to prevent what would otherwise be still further massacres of still more people, many of them innocent, who certainly will not have received a fair and orderly trial.
I now turn to the second topic of importance to which I referred—namely, steps for the production of persons accused. It is a most difficult question to which a great deal of attention has been given, to my knowledge, not only by official bodies, but also by very important and well-instructed committees. To obtain the surrender of the culprits—how is that to be secured? It has been natural and very instructive that we should have had our attention called by my noble and learned friend to-day to the fiasco on this matter which followed the Treaty of Versailles. We therefore seek a different method, and here again, I am glad to say, the United States and ourselves are taking a common stand and are making a contemporaneous declaration. The Treaty of Versailles failed to secure the 585 effective punishment of the principal criminals, partly owing to the fact that provision for this purpose was only contained in the final Treaty of Peace, negotiated and signed months and months after the Armistice in June, 1919. What my noble friend Lord Cecil has told us of his recollection of what went before is a warning, and certainly justifies the insistence that more than one of your Lordships have expressed that things should not be left to run until we come to the end of the fighting. We do not intend to make the same mistake as was made by postponing this demand until the final treaty of peace has been signed. Named criminals wanted for war crimes should be caught and handed over at the time of, and as a condition of, the Armistice, with the right to require the delivery of others as soon as the supplementary investigations are complete.
This proposal is also one which is welcomed by our European Allies established in London and by the Fighting French who have all associated themselves with it. We are, of course, also in communication with Soviet Russia and China on the point as well as with the Dominions and India, who are further away, but we are still awaiting replies. I would emphasize that this last provision which I have mentioned is one to which our European Allies now established in London attach extreme importance. When one reflects on the horrible story of cruelty and outrage from which their homelands and yellow citizens have suffered, and are suffering still, one can well understand the reason for their determination.
Such are the two proposals, supported by the Government of the United States and by our European Allies which I have named, which I now put before the House. They are definite steps, to be taken with a serious purpose. They will, of course, require a great deal of elaboration and working out. Some of the technical matters mentioned in the debate today require also the closest attention, and all this must be done not by ourselves alone, but in co-operation with our Allies. I am sure we should pursue resolutely this course, difficult as the way may be. The proposal contemplates post-war action in a region where there are very few precedents to guide us, but we will act in the spirit of the declaration, quoted by Lord Maugham, made not long 586 ago by the Prime Minister himself when he said that, henceforth, among the major purposes of the war must be included the exaction of retribution for the cold-blooded execution of innocent people. The Prime Minister added on that occasion that the atrocities in Poland, in Yugoslavia, in Norway, in Holland, in Belgium, in Greece, and above all, perhaps, behind the German lines in Russia, surpassed anything known since the darkest and most bestial ages of mankind.
That leads me to a reflection with which I shall conclude. It is now more than 300 years since a very great Dutchman, whose range of knowledge in many respects might be compared with that of Francis Bacon, wrote a treatise on the laws of war which began the effort of civilized mankind to restrict the cruelties and sufferings which the practice of barbarous warfare brought in its train upon the innocent. When that book was first read and studied, the world was horrified at the ravages and sufferings inflicted upon innocent people during the Thirty Years War. What is the story since then about this matter? It is a story that should interest us all, for it is false to say that what has been attempted has merely been the technical, bloodless efforts of a few so-called international lawyers. Since the time of Hugo Grotius, by the effort of men of many nations, including in the past some distinguished Germans, a code of conduct has gradually been evolved which has been treated, not as the vain imaginings of a few pedants, but as the practical guide, to be found at this moment in the Manual of Military Law published by the War Office, for the protection of the inhabitants of occupied territories from the violence of the invaders.
That is the historical setting in which this question should be put. The Nazis and their allies have thrown the whole of this code overboard. They have set no limit to the ferocity with which the innocent inhabitants of occupied territories—the aged, the Jews, the women, the children—have been treated. When, therefore, this world war at length reaches its conclusion—the only conclusion which free men and women will ever accept—the world will have to face a choice between alternatives—either the efforts of centuries to establish and preserve decent conduct in occupied territories are to come to 587 naught and we are to rattle back into something even worse than the barbarities of the Middle Ages; or else those nations which realize that world progress depends on preserving decencies of conduct must undertake and discharge the burden which falls to them, not to condone, or pass a sponge over, these frightful events, but to note them and to do their best, as we and the Allies will do, to show that they cannot go unpunished.
§ THE EARL OF ELGIN AND KINCARDINE had the following Notice on the Paper: To move to resolve, That this House, having learnt with indignation and horror that during their occupation of Poland the authorities of Hitlerite Germany have, for no crime other than that of being Poles, officially executed over 140,000 men and women, tortured many more in prisons and concentration camps, deported 1,500,000 to slave labour in Germany, and robbed over 2,000,000 in the Western provinces of all they possessed and before expelling them to Central Poland, thus in every way outraging both International Law and the laws of humanity itself, expresses to the Polish people its heartfelt admiration for their inspiring example of continuous and unflinching fortitude, protests in the name of civilization against the policy of deliberate extermination of the Polish people and pledges its word to heroic Poland that her sacrifice will not be in vain and that due retribution for all these crimes will unfailingly be exacted.
§ The noble Earl said: My Lords, I do not wish to detain the House more than a few minutes, but your Lordships will have noticed flint I have had upon the Order Paper of the House a somewhat kindred Motion, dealing particularly with the atrocities committed in Poland. I think it would have been convenient to your Lordships if this Motion had been debated with the Motion of the noble and learned Viscount, Lord Maugham, but in view of the trend of the debate to-day, and particularly in view of the important pronouncement from the noble and learned Viscount, the Lord Chancellor, I feel that it is inopportune or unnecessary at this moment to press further illustrations, which I could have brought (and which indeed have been mentioned) of what has occurred in the country of Poland. But from the statement which has just been made by the Lord Chan- 588 cellor, I think it would be more appropriate if I ask your Lordships to consider the subject which appears under my name at a later stage and not during this particular discussion. I should, however, like to support in general what has been brought forward by the noble Viscount, Lord Maugham, in his Motion, and to say that at a later stage I hope to ask your Lordships to take the second part of my Motion, more emphatically that part which deals with the appreciation by this country of the value of the work done by Poland in its gallant stand.
§ LORD LANG OF LAMBETH
My Lords, I had not intended to take part in this discussion, but I am moved to do so for a few minutes before the reply of the noble and learned Viscount, Lord Maugham, to whom we are so greatly indebted for this afternoon's discussion. This is the very first occasion on which the subject, about which there has been an immense amount of eloquence and fervour, has been at all seriously discussed, and, therefore, it seems to me that it might perhaps be regarded as unnatural if, on this particular subject and at this particular moment, no words were said about what may be called the larger moral aspects of the matter. I think it would be the greatest mistake if we were to allow it to be supposed that in advocating, and indeed in insisting upon retribution, we were merely endeavouring to provide the means by which we and other outraged nations, who have suffered so infinitely more than we have, can find satisfaction for our feelings. I think it is important to insist that this is a matter which concerns the rightful vindication before the world of essential moral principles on matters of this kind.
Adequate punishment is due to the individual himself who has committed the crimes alleged against him if they are proved. It is as old a principle at least as Plato that you could do no greater disservice to a man who has committed come crime or sin than for any reason whatever to let him off. It is due to him, it is part of what we owe to our neighbour, that he should, by adequate punishment, be made sensible of the gravity of the crime and the wrongs that he has done. Adequate punishment is due to the community to which the individual belongs. The community must be made to realize that the kind of thing which this member 589 of it has done is not to be tolerated in that community, and there is no way in which that can be made plain except by the way of adequate punishment. But I think we can go further—indeed the concluding and most impressive words of the noble Viscount on the Woolsack make this plain—and say that adequate punishment of such criminals is due to civilization itself, to the wider community of mankind. We should be surely turning our backs upon the very principles for which we have engaged on this desperate struggle, the maintenance of mercy and justice, if this principle of retribution were to find no place, and no prominent place, in the objects with which the contest is being carried on. I think these principles are perfectly clear, but it is also important that they should be remembered.
There are many excellent people in this country who have now come to regard punishment as if it were merely corrective and reformative, whereas this other aspect of it cannot, without damage to the community, be forgotten; and if that be true at all, it is particularly true at this present time, and in view of these outrages and atrocities about which, at this hour and in any case, I car not allow myself to speak. If all that is true, and if everything that has been urged about retribution is true and just, then. I venture to press the enormous importance of seeing that it is not all to vanish in talk, but that means are being taken to see how these principles can be effectively applied. That is really the importance, if I may say so, of the announcement which the noble and learned Lord Chancellor has made this afternoon. It comes in a most timely way. It would be disastrous to encourage the notion to prevail, to plead all that is said by the Prime Minister and others about justice and retribution in this matter, unless His Majesty's Government and the other Allied Nations see how these just words can be effectively carried out.
I have nothing more to say. I will not speak for a moment—it would indeed be presumptuous for me to do so—on the question of procedure. I would only venture to observe—I am sure it is involved in all the Lord Chancellor has said, and in what the noble Viscount, Lord Cecil, said—that we should be very careful to see that in any attempt to make this matter of retribution part of our great cause of vindicating the principles of jus- 590 tice throughout the world we take especial pains, sometimes against our own instincts, to see that the processes by which that is done shall themselves be clear illustrations of the sanctity of law. I hope your Lordships will forgive this intrusion, but I felt that I should bring forward one aspect of the matter which it is worth while to keep before our minds.
§ VISCOUNT MAUGHAM
My Lords, it falls to me to make a few concluding observations. First of all I should like to refer to the two matters on which the noble and learned Viscount on the Woolsack has made some interesting statements of great public importance: firstly, the matter of what he calls the recording of evidence; and secondly, the obtaining of the presence of the criminals before the Court which is going to try them. I hope that nobody supposed that in the speech I made I had in any way forgotten those facts. I thought they were fairly obvious, but I must say I am exceedingly glad to bear that something is now going to be done to take steps to obtain and record what may be called the evidence of people in reference to the commission or various crimes. I do not myself like to call it their evidence because I do not think it would be fair to the criminal that statements of an ex parte kind should be regarded as evidence.
In the last war Germany agreed to accept the system of taking evidence at Bow Street in the presence of the accused or his representative, with liberty to cross-examine, as real evidence, and that I mink will have to be done to a very large extent in the present case. But of course it is most desirable that the names of the criminals should be preserved. I thought there would be no very great difficulty in obtaining them in a great number of cases, because of the publicity that has been given to the matter in the Press, but it is very much better that they should be obtained by a Commission of the United Nations for the investigation of these particular matters. I thoroughly and warmly approve, if I may do so, that step having been taken by this country with the concurrence of the United States and the approval of some other nations.
I always say what I think, whether it is popular or not, and therefore I must frankly state that I am rendered extremely uneasy by the observation which 591 fell from my noble and learned friend on the Woolsack with regard to the Armistice being made conditional on the handing over of criminals. I do not quite know what that means. If it only means that there is to be a clause in the Armistice to say that war criminals—not naming them—must be handed over at the request of the Allied and Associated Powers, I see no objection to it at all, but as I understand the noble and learned Viscount on the Woolsack, it referred to the handing over of named criminals, the names of whom had been ascertained by the Commission for the investigation and punishment of war crimes. If that is so, I hope that such a statement is to be taken with a great many qualifications which have not yet been stated in your Lordships' House.
Take the Armistice at the end of the last war. Your Lordships will all know the facts, some personally and some will have read of them in histories of the war. Is it conceivable that when the German Generals came before the French and the English Generals, Marshal Foch and Lord Haig, with a suggestion for an immediate Armistice, the French and the English Generals could have said, or would have been well advised if they had been in a position to say: "We require the handing over of 100 criminals who have committed desperate war crimes. Until then fighting must continue." People were being killed by the thousand every week then, although the Germans were on the run. Those who have read accounts of the last war and histories stating the views of such persons as the present Prime Minister, Lord Haig and a number of other people, know perfectly well that if the war had continued, even though the Germans were being driven back into their own country over many miles of territory, tens of thousands of lives would have been lost in the course of a very few weeks by continued attacks on the retreating Germans. Is it conceivable that the Generals in charge, who, after all, are the people who are engaged in an Armistice, are not to consent to an Armistice unless, as if is said, the criminals are handed over''
Suppose there are only, as in the last war, 896 known criminals. Are the Generals to say that until so many of these 896 criminals are handed over there must be no Armistice? It is certain that before the Generals come with such a re- 592 quest as that many of these criminals will already have left Germany and it will be impossible for the Germans, even if they are brought to their knees to the same extent as in the last war, to hand over these criminals. Some of them they might hand over, but I doubt very much if it would be possible for them to hand over the majority.
Nor does the difficulty end there. There are a number of Powers all engaged in fighting the Germans. Is it to be supposed that there will be only one Armistice? There was not in the last war and I do not know why there should be now. The Soviet Republic, in all probability, will have an Armistice of its own. Italy, I should think, quite likely will have consented to give up fighting long before the Germans are brought to their knees. There may be, for all I know, three or four or even more Armistices at the close of the war. To which of them does this condition apply? I hope I am not being unreasonable. I am only putting before your Lordships difficulties which will have to be met, as it seems to me, before we can put any precise meaning on the suggested conditions. I am not asking for these conditions to be stated now, but I do beg the Government not to pledge themselves to a condition which may result, I do not know when—it may be a year or several years hence—in further loss of life and further misery for thousands of people. That is all I shall say on that point.
With regard to the general matter of the debate I find myself in hearty agreement with the view on the general question so eloquently expressed by my noble and learned friend. If his statement is to be taken to represent the views of the Government as a whole we may be certain that everything possible will be done to bring the criminals to justice. There is one thing, however, I will say, and that is I do not quite understand his statement showing something of a leaning towards trial by Military Courts, a matter on which my noble friend the Marquess of Crewe made some pertinent observations. It is necessary to be quite clear as to what you mean in these matters. The noble and learned Viscount on the Woolsack says international lawyers do not in any way disapprove of Generals in the field, who have managed to get hold of persons who have committed breaches of the laws of war, executing justice upon those 593 criminals. I think that is very true; but what does it mean? There are no such things as laws of war in the sense of perfectly definite laws binding upon the nationals who are engaged in the fighting. Such laws mean no more than what civilized nations have agreed to be the methods by which they will conduct war. Then what do you mean by the Military Court having power to convict people who have committed breaches of these so-called laws? What this means is surely that there can be hearing and trial and conviction—with execution of sentence to follow—of people who have done these things.
Under Martial Law, which is not, according to a lawyer's idea, law at all, the General in the field is not bound by any regular procedure or regular rules of evidence in trying a person under these conditions, any more than he is bound by general rules of that sort if he catches a spy. Martial Law has got to be supplemented, if it is going to be applied in the case of criminals such as those with whom we are dealing, by definite law authorizing certain procedure, and conviction of people for certain offences. I admit that I do not think the Generals of the British Army would be very glad to be concerned with the trial of hundreds of Germans, who have been caught somehow or handed over under an Armistice or afterwards, and to try them in cases which must take many weeks and months to try, and, I suppose, to try them in the occupied country at the date of the Armistice or up to the time of the declaration of peace. I confess that I have the greatest difficulty in seeing how it can be done.
I would add that, though we have no rules for Martial Law in this country, Continental nations have got such rules, and I am informed by the experts—for I have investigated this question as best I can—that these laws differ in almost every country on the Continent. Therefore there would be German criminals tried, it may be by English, by American, by Russian, by Polish, or by Czecho-Slovakian military officers all of whom have a different idea as to the law which is applicable in such a case. The other countries have a written law—which we have not—applicable to these matters, but unfortunately the laws of the different countries are different. You cannot get on, therefore, without coming to a definite 594 agreement with these people to set up tribunals with perfectly definite rules for their administration and for the punishment of the people to whom I have referred. Subject to that, I only repeat once more how much I welcome the step—which I regard as a preliminary step—of establishing a United Nations Commission for the investigation of these matters, and how much, also, I particularly welcome the tone in which the noble and learned Lord Chancellor, on behalf of the Government, has approached this subject. I need hardly say that I do not wish for anything more now than leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.