§ 5.20 p.m.
§ THE LORD BISHOP OF CHICHESTER rose to call attention to the present situation in Germany in relation to war crimes trials; and to move for Papers. The right reverend Prelate said: My Lords, the Motion which stands in my name raises issues of justice, humanity and political wisdom. It affects the 377 Germans, for the future of the new West German Republic, and indeed of Germany, depend in no small part on the question whether or not it develops in an atmosphere of confidence; and the war crimes trials are among the deepest troubles of the German people. But still more this Motion affects ourselves, and our reputation for justice and humanity; and on that ground in particular I plead against a further continuance of trials in any form, including the prosecution of the three German Generals, and I ask for a review of the sentences of all war criminals who have been already convicted. This subject has been much discussed in this House and elsewhere, and there is general agreement on the magnitude of the atrocities perpetrated by the instruments of Hitler's domination in the occupied countries, and on the legal rightness of punishing the main criminals. But it has been recognised from the start, first, that the important thing is to establish a proper idea of the international rule of law and to make examples, and, next, that the dealing with the criminals should be just and prompt.
§ Now, my Lords, it is four years since the end of the war, and the War Crimes Commission was itself deliberately wound up in March, 1948; and, whatever we may think of the ultimate principle involved in the whole system, the longer it continues the more difficult it is to defend, and to carry the conscience of the enemy with us. We have to remember that nothing like it was instituted before on such a scale—and note the gravity and the vulnerability of the position of the President. No one could have presided over the International Military Tribunal in a more masterly or more fair manner than did Lord Oaksey; but the law imposed upon the Tribunal was a very rigid law, in some respects novel; and the making of a special Charter at all opens out all sorts of dangers in circumstances different from those which were under our control.
§ There are three main points of criticism. First, the Charter deals only with the crimes of the vanquished; but it is very difficult for a defeated foe to appreciate the justice of punishing such crimes as the deportation of civilian populations in occupied territory, looting, murder of prisoners of war and devastation not justified by military necessity, when similar charges could be brought against 378 one or more of the Allies, but are not brought. The second point of criticism is that the Charter makes war of aggression a crime against peace. I can at least safely say, as an amateur, that this is much disputed among international lawyers; and the History, just published, of the United Nations War Crimes Commission gives a very interesting and full account of this disputability—not in morals but in international law. It points out that the majority of the Special Sub-Committee and of the Legal Committee of the War Crimes Commission regarded it as by far the most important issue of substantive law before taking the view that aggressive war, however reprehensible, did not represent a crime in international law, and that this position was not altered by the Kellogg Pact. The arguments at Nuremberg and Tokyo agreed with the Charter. All I would say is that the issue is highly controversial, and that Nuremberg made a new enactment.
The third point of criticism concerns the rule about superior orders. Article 8 of the Nuremberg Charter runs thus:
The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him, from responsibility, but may be considered in mitigation of punishment.
Law No. 10, under which all subsequent proceedings took place, defines that responsibility much more precisely. Article II of this Law says that:
… any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime … if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organisation or group connected with the commission of any such crime.
I do not see how anyone, however remotely connected, could under these provisions be free from responsibility. The principle respondeat superior must be recognised as important in law—and all the the more when we remember that Germany was a military, and indeed a police, State, and that a man was likely to be shot if he disobeyed.
Again, so far as war crimes proper are concerned, this Article in the Charter goes much further than the manuals of military law in force when the war broke out. I have studied some of the actual texts of
these; and I find that the German, the French, the Russian, the American and the British manuals all allow superior orders to be a valid defence on a charge of war crimes. The British Manual, up to April, 1944, was the plainest of all. Paragraph 443 of the British Manual of Military Law includes these words:
It is important however to note that members of the armed forces who commit such violations of the recognised rules of warfare as are ordered by their Government, or by their commander, are not war criminals and cannot therefore be punished by the enemy.
This paragraph, and a similar paragraph in the American Manual, were drastically altered in April, 1944; but that was the rule from 1914 to 1944. It was the rule at the time of the Moscow Declaration on atrocities of October, 1943.
§ All these points have a bearing on the general issues. But the last point of criticism deals with a principle of the greatest importance, concerning the responsibility of individuals in the case of all types of war crime—crimes against peace and against humanity, especially where administrators, diplomats and naval and military chiefs are concerned. The ultimate guilt lies with the makers of policy. It is the originators of the policy—men like Hitler, that man of diabolical power, and his most intimate political accomplices—on whom the gravest responsibility lies. I think we ought to have distinguished, far more radically than any Government have yet distinguished, between the primarily and principally guilty men and the rest.
The last Nuremberg trial took place under three American judges, and ended in April. It is, I believe, their last trial. It tried diplomats and civil servants. Some of these were deeply involved in policy; others were diplomats and administrators only. Von Weizsacher, the Permanent Secretary of State in the Foreign Office, was the most important of the diplomats. Two judges sentenced him on certain counts to seven years' imprisonment. Judge Powers gave a dissenting judgment that he was not guilty at all, but the majority opinion includes this surprising statement:
While admitting that many things passed over his desk and received his initials of approval as to which he harbored mental reservations and objections, he states he remained in office for two reasons: first, that he might thereby continue to be at least a cohesive factor
in the underground opposition to Hitler by occupying an important listening post, maintaining members of the opposition in strategic positions, distributing information between opposition groups in the Wehrmacht, the various governmental departments, and in civil life; and, second, that he might be in a position to initiate or aid in attempts to negotiate peace. We believe him.
That phrase "We believe him" is extremely important. We may wish that he and many others had refused to co-operate, but many diplomats, including Permanent Under-Secretaries of State in other Foreign Offices, have disapproved the policy of their Prime Minister or Foreign Secretary and have yet not resigned. I hope that there may be a radical revision of the majority verdict.
The case is hardly less strong in connection with naval and military chiefs. I personally greatly regret the weakness and timidity of the Generals in failing to stand up against Hitler, both before and during the late war. Many of their actions or their failures to act merit strong moral condemnation. But we must beware lest the ultimate result of the policy adopted by the victors after the war has this result, as described by Brigadier-General J. H. Morgan, K.C., in his examination at Nuremberg. He says:
It may be that in the wars of the future, the belligerents, confronted with the possibility of losing them and, in that event, of being predestined, if vanquished, to be accused of 'aggression,' will wage them with all the greater fury and inhumanity, on the principle that it is as well to be hung for a sheep as a lamb.
Field-Marshal Viscount Montgomery in Paris, at the Franco-British luncheon on July 8 of last year, said that the Nuremberg trials made the waging of unsuccessful war a crime, for the Generals of the defeated side would be tried and then hanged. I shall come to the two Field-Marshals and the one General in a moment, but with this background I urge that the time has come to bring all prosecutions to an end and grant a general amnesty.
§ Let us just look at the figures. The History of the United Nations War Crimes Commission states that on March 31, 1948, there were 34,270 German individuals listed, of whom 22,409 were war criminals proper, 9,339 were suspects, and 2,522 were material witnesses. If we add 1,677 war criminals proper of other European nationalities, we arrive at a total of 23,086 war criminals proper listed 381 by the War Crimes Commission. Of these, on March 31, 1948, a year ago, 3,470 had been brought to trial in Europe and 2,857 had been convicted. Lord Wright, the Chairman of the War Crimes Commission, said in your Lordships' House on March 30, 1945, that if 10 per cent. of the war criminals were apprehended and dealt with, it would be more than satisfactory.
§ Let us see who now await trial in the British zone. I know there are not many left. A great many have been tried and convicted and some have been acquitted; but there are three classes awaiting either trial or consideration for surrender. First—as I believe; I do not know now the exact figure because it varies—there are twelve Germans accused of crimes against humanity. There may be grave offenders among them. I do not know any of their names but, in view of the time that has elapsed, I think we should be prepared to risk now that some criminals escape punishment. The second category is the category of those two Field-Marshals and one General to whom so much attention has been directed. Field-Marshal Von Rundstedt and General Strauss are old and ill. Field-Marshal Von Manstein, younger, aged 61, is not so ill, although I understand his eyes are very bad. The answer to the question which the noble and learned Viscount on the Woolsack put last November: "Are these men fit to stand their trial?" may be "No" in the case of two, and "Yes" in the case of one. But, in my opinion, to allow any trials to proceed is to miss the main principle, which is one of justice at this date.
§ The circumstances of their removal from Britain are well remembered. It is sufficient to say that the first formal notice that they would be tried by a military court was received on August 28, 1948, three days before the last day for deciding on further prosecutions at all, but no precise details were given as to charges or facts. Last November the noble and learned Viscount on the Woolsack spoke of the immense amount of work to be done and of papers in the United States. On January 1, so-called holding charges of war crimes were delivered to these three survivors. I have seen them. They consist of short sentences describing the type of crime without giving any details enabling the 382 defence to prepare its case. Up to the end of last week—I do not know what the position is to-day—no detailed statement of the case for the prosecution together with copies of documents had been handed to them. Supposing that indictment is handed to them next week, the defence must be given sufficient time to prepare their answers, and they should surely have access to the files of the military establishments which were under their command. The noble and learned Viscount in November hoped that the trial might be staged in March, though he gave no promises. It will be June or July, or even August, before the trial is likely to be staged now; and my question is: how shall we be able to justify to history the trial of any, in these circumstances, at this date?
§ I do not dispute that the charges may be very grave. Nor do I dispute that their subordinate, Lieutenant-General Carl von Rogues, was sentenced by an American tribunal in October last to twenty years' imprisonment, and Lieutenant-General Otto Wothler, von Manstein's Chief of Staff, to seven years' imprisonment. We know that both von Manstein and von Rundstedt were asked in July, to give evidence in these cases. Important facts regarding them must surely have been known at that time. Important facts regarding them must surely have been known in March, 1948, when the Russians pressed for the delivery of these two Field-Marshals. It is the delay that is the crux of the matter. After all this time, at this distance from the Moscow Declaration, after four years of imprisonment, let them go. Incidentally I would like to ask whether they and other war criminals, after they have served their sentences or after they have been set free, are subjected to denazification in German Courts if they want their funds unlocked or for any other purpose.
§ There is the third category—namely, the much larger class of alleged war criminals in British custody whose surrender is asked to the Governments of the countries in which the crimes were committed, in accordance with the Moscow Declaration. The method of deciding what is prima facie evidence justifying surrender has been greatly improved since the tribunals were established in 1947, but we can understand the terror of surrender to certain Eastern countries. I need only remark 383 that, according to the history of the War Crimes Commission, up to May, 1947, Yugoslavia had tried seventy-nine war criminals, sixty-three of whom were sentenced to death and none acquitted. A recent order has been given that no fresh applications for surrender will be entertained except on charges of murder. But murder charges are often an excuse for the interrogation of such persons about the politics of other people in the country to which they have been surrendered. A death sentence passed in absence on a person who was a boy of fifteen when the war broke out—and there are such cases—can hardly be regarded as adequate prima facie evidence. I have much correspondence on these matters and I am grateful to the Foreign Office for the trouble they have taken in them, and I know personally many cases of a most tragic character, many suicides in different camps, after the order of surrender has been given. They have chosen suicide rather than go to certain torture or death in particular countries. So I would urge an end to the surrenders.
I have spoken of the Field-Marshals and the General; I have spoken of those charged with crimes against humanity and of those demanded for surrender. As I have no doubt the noble Lord will tell us in his reply, there are many signs of a general closing down of these war crimes trials, in the British zone as well as elsewhere. So in my plea for a general amnesty I ask for a reconsideration of the sentences already passed. In the American zone last year charges were made, to use the words of the American judge, Judge van Roden, "of atrocities committed by American investigators in the name of American justice at the United States Court in Dachau." The American Army Department accordingly appointed a Commission consisting of Judge Simpson, Judge van Roden and Colonel Lawrence, to investigate 139 confirmed but unexecuted death sentences, and their circumstances. The Commission's Report was published in January of this year. They found that no general charge of improper methods could be sustained but that in the Malmedy Case—and here I quote:
The propriety of many of the methods employed to secure statements from the
accused is highly questionable and, we conclude, cannot be condoned.
They recommended the commutation of death sentences in altogether twenty-nine cases. They also recommended—and this is my point—that the Commander-in-Chief should establish as soon as practicable a permanent clemency programme for the consideration of the sentences of prisoners convicted in war crimes cases. So I would ask His Majesty's Government to establish a similar permanent clemency programme, with machinery for reconsideration of all sentences of persons convicted. It is only too well known that some prisoners who were sentenced earlier in a rather severe way would not to-day have been prosecuted.
§ I have one final point before I sit down. I would ask His Majesty's Government to look at the conditions in which the major war criminals are imprisoned at Spandau Prison in the British sector of Berlin. I am not speaking of the merits or, rather, the demerits of the major war criminals, but I would call attention to this point. All these major war criminals at Spandau are completely isolated from the outside world and forbidden to read newspapers or to get any news. Their relatives are allowed to visit them for a quarter-of-an-hour every other month. Correspondence between prisoners and their families is so delayed and so heavily censored at times that it is often stopped for weeks, and so defaced as to be unintelligible. And the severity of the confinement is such that the chaplain is able to administer spiritual counsel only in the presence of a sentry. Probably the decision a year ago to terminate the Allied Control Council, which decision is now to be reversed, has made it impossible to secure consideration of individual cases.
My Lords, I have put the general situation before you. I ask for an amnesty at this stage; no more prosecutions; no more surrenders to other Governments, and a reconsideration of all sentences passed. I do it, not because I am under any illusion as to the gravity of the crimes or as to the terrible part so many have played in bringing misery and suffering to millions, but because a time comes when an end ought to be put to the penal process. The noble and learned Lord, Lord Wright, in the course of some words upon the United Nations War Crimes Trials, stated:
Once it is felt that the idea of an international rule of law, and its suitable endorsement, have been established, with the support of sufficient precedents, humanity is glad to be relieved of the nightmare of the past … The majority of the war criminals will find safety in their numbers. It is physically impossible to punish more than a fraction. All that can be done is to make examples.
The rule of law has been demonstrated, many examples have been made, and exactly a year ago—on May 5, 1948—the noble and learned Viscount who sits on the Woolsack said in this House, in a debate on the United Nations Commission on Human Rights:
I look forward to the day when at long last these trials can come to an end. I think that the indefinite prolongation of the trials, although of course there may be exceptional cases where delay is necessary, is no longer performing a useful or a desirable task. If justice is spread out over too long a period it begins to look like vengeance, which is very different from justice.
He closed with the remark that, in saying what he had said, he had the support of an overwhelming body of opinion among all Parties. With the proviso that after one more year it can no longer be necessary to maintain even one exception, these words of the noble and learned Viscount are truer than ever to-day, and I ask His Majesty's Government to act upon them. I beg to move for Papers.
§ 5.54 p.m.
§ THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD HENDERSON)
My Lords, I would like, first of all, to thank the right reverend Prelate for his courtesy and readiness in responding to the requests of the Government which led to his Motion being postponed from the original date to that of the present debate. It has enabled certain matters to be dealt with this afternoon in more definite terms than might otherwise have been possible.
I believe it will be for the convenience of your Lordships, and helpful to the course of the debate, if I make an immediate statement about the two Field Marshals and the General to whom the right reverend Prelate referred.
I can announce to your Lordships' House that the Government have decided, in the light of medical evidence, that Field-Marshal von Rundstedt and Colonel-General Strauss are unfit to stand trial: proceedings against them are to be dropped and they are to be released. 386 The medical evidence regarding Field-Marshal von Manstein is that he is fit to stand trial, and accordingly he is to be tried. The noble and learned Viscount the Lord Chancellor will deal with this decision in full detail when he speaks later in the debate.
But there is also the general policy of His Majesty's Government regarding war criminals, and I will deal with the present position and outline the Government's future policy in this matter. As noble Lords have been reminded, the acts listed and defined as crimes by Article 2 of Control Council Law No. 10 were crimes against peace, war crimes, crimes against humanity and membership of a group or organisation declared criminal by the International Military Tribunal at Nuremberg. As regards the first category, crimes against peace, no occasion has arisen to bring to trial persons accused of these crimes in the British Zone of Germany. Persons in the British Zone accused of war crimes—by which I mean crimes against the laws or customs of war—have been tried before military tribunals, and for the greater part the crimes alleged against them have been offences against British troops or troops of Commonwealth countries—chiefly prisoners of war. No trials have started since September 1, 1948, and none will be started in the future, apart from that of Field-Marshal von Manstein. All those started before that date have now finished, and the sentences have been put into execution.
The third category is crimes against humanity. In the British Zone of Germany these crimes have fallen into two classes. Where the victims were German citizens or stateless persons, the accused are being tried in German courts. Where the victims were members of the United Nations, the accused are being tried in Control Commission Courts in the British Zone. Of the latter category, there are outstanding nine cases, affecting eighty-four persons. His Majesty's Government have decided that these and any future cases will without exception be left to the German Courts to try under the German penal code. So far as the trials of Germans accused of offences against Germans or Stateless persons are concerned, the question of the continuation or cessation of such trials is entirely one for the German 387 authorities, and it is no part of His Majesty's Government's policy to interfere with a responsibility which has been handed over to the Germans.
The fourth category is membership of a group or organisation which has been declared criminal by the International Military Tribunal at Nuremberg. Organisations so declared were the Leadership Corps of the Nazi Party, the S.D., the Gestapo and the S.S. It was decided, in agreement with the German legal authorities in the British Zone of Germany, that the offence of being a member of one of these four organisations should be tried by special German tribunals. Accordingly, the cases of some 27,000 persons were investigated, and 203 are still under investigation. Over 20,000 of them have been brought to trial, of whom about 75 per cent. were found guilty and sentenced. There are 168 known cases awaiting trial, and 285 awaiting the hearing of appeal or retrial. Again, since the responsibility in this matter has always been with the Germans, the question of bringing to trial any persons accused of being members of such organisations who may be apprehended in the future is one which must be left to be settled by the German authorities.
The right reverend Prelate referred to the surrender of Germans to other countries for trial there, as had been determined at Moscow in October, 1943. He urged that extradition should be brought to an end, even though the alleged offence was that of murder. There have been four successive stages in our extradition policy. The first was that of virtually allowing extradition merely on the application of the claimant country. Then, in the light of this early experience, it was decided by the United Nations Assembly in October, 1947, on British initiative, that requests for alleged war criminals should be supported with sufficient evidence to establish that a reasonable prima facie case existed as to identity and guilt. In order that such prima facie evidence might be the better examined by the Military Governor, and possibly rebutted by the accused, an extradition tribunal was established in the British Zone on February 28 last year. As I informed your Lordships on June 23 last, all applications for the surrender of alleged 388 war criminals were being examined in the first instance by that tribunal.
About the same time, His Majesty's Government gave consideration to the question of the offences for which surrender of alleged war criminals should still be granted. The British Military Governor was ultimately authorised to announce, on June 1 last year, that he wished to receive by September 1 all applications for surrender, and with regard to applications made after that date, that he would grant only such as showed a clear prima facie case of murder. That was the third stage. The effect of this latter decision was that it removed from many German homes, more than three years after the war, the shadow of retribution for less grave offences than murder. But murder is an offence for which no statutory limitations exist, either in this country (as was pointed out by the noble and learned Viscount, Lord Simon, on November 2), or in Germany. The fourth stage has now been reached. His Majesty's Government intend to continue, in exceptional cases, to allow the extradition of persons to the countries where their crimes were committed. There must now be not only prima facie evidence of murder but also a satisfactory explanation why this application for extradition was not made before September 1, 1948.
I should make it clear to noble Lords that there are a few applications for surrender of alleged war criminals which are still being examined in Germany where the offence alleged is not murder. These applications were made before September 1 and are, therefore, not covered by the Military Governor's announcement of June 1. Two factors have caused this delay. The first is that the claimant country had not originally supported its application with adequate evidence to convince a tribunal acting in the British principles of evidence, and has had to ask for an adjournment in order to produce such evidence, which very often exists. The second cause of delay has been that the accused, when confronted with the evidence against him, has asked for an adjournment in order to obtain rebutting evidence. Your Lordships will agree, I am sure, that it is only right that we should give the accused persons reasonable time if there are genuine grounds for believing that they have witnesses who can testify on their behalf.
389 There is one other surrender or extradition class—namely, traitors and collaborators of various countries occupied by the Germans. In 1945 we informed our Allies concerned that such persons would be regarded as traitors to the common cause, and the Military Governor was instructed to hand over to their Governments for trial such persons found in the British Zone of Germany. It has lately been decided however that after nearly four years from the end of the war, sufficient time has been granted to discover such persons as might be resident in the British Zone. The Military Governor, therefore, was authorised to announce in January that he would accept no more applications for the surrender of alleged traitors and collaborators after March 1, 1949.
My Lords, I will summarise the future policy of His Majesty's Government by the following announcement:
(1) His Majesty's Government do not intend to bring to trial in the British Zone of Germany any further persons accused of crimes against the laws and usages of war, apart from trials already begun, and that of Field-Marshal von Manstein.
§ LORD HENDERSON
If the noble and learned Viscount will be good enough to wait until my noble and learned friend the Lord Chancellor deals with this matter, as I said at the beginning of my speech, he will be informed.
§ VISCOUNT SIMON
I do not wish to disturb the noble Lord, but I think the noble and learned Viscount the Lord Chancellor is going to speak last. Presumably, the Foreign Office know the anticipated date.
§ LORD HENDERSON
I still must request the noble Viscount to be good enough to await the speech of the noble and learned Viscount the Lord Chancellor.
THE LORD CHANCELLOR
My Lords, I will gladly intervene at any time, if my noble friend does not mind. I have seen the indictment. It has had to be translated into English, and the last page or two are still in a draft form and written in ink. It is anticipated that the indictment 390 will be served within the next ten days, and thereafter, of course, we must give the accused such reasonable time as he wants to meet the matter. Subject to that, we shall be able to start the trial as soon after as may be.
§ LORD HENDERSON
The announcement goes on:
(2) His Majesty's Government have already handed over to the Germans the responsibility for trying persons accused (a) of crimes against humanity where the victims were Germans, or (b) of being members of organisations declared criminal by the International Military Tribunal.
(3) In the case of crimes against humanity involving an Allied or United Nations victim, His Majesty's Government intend that all future cases shall be tried by German courts under the German penal code.
(4) His Majesty's Government have long been anxious to reduce to a minimum the number of cases of extradition of war criminals. The Military Governor announced in June last that, save in certain specific cases, no further applications for extradition for war crimes would be accepted after September 1, 1948. In view of their obligations under the Moscow Declaration of 1943 and the Resolution of the General Assembly of the United Nations in 1947, and of the strong feeling still existing in France and certain other Allied countries which were occupied by the Germans, His Majesty's Government intend to continue in exceptional cases to allow the extradition of persons to the countries where their crimes were committed. This, in His Majesty's Government's view, means cases where there is prima facie evidence of murder, and where there is a satisfactory explanation why application for extradition was not made before September 1, 1948.
(5) In regard to crimes against peace, it is intended to continue the present policy of bringing no trials before Control Commission Courts.
(6) In the matter of extradition of traitors and collaborators, no further 391 applications for extradition are being accepted by the British authorities since March 1, 1949.
My right honourable friend the Foreign Secretary has been very anxious, in the light of the recent Allied agreements in Washington about Germany, to reach agreement with the French and United States Governments on this vexed question of war crimes policy as well. The attitude of the American Government is similar to that of His Majesty's Government, and I understand that the statement which I have made expresses their position, as well as our own. The position of the French Government is different, and we appreciate the reasons for this. France and other countries of Western Europe, which were overrun and occupied for years by the Germans, have suffered more than the United States and the United Kingdom from these war crimes. We appreciate that the Governments of these countries should wish to retain the right to bring to trial persons who may yet be found to have been guilty of these serious offences. It is for this reason, as I have mentioned, that both His Majesty's Government and the United States Government propose to retain the right to hand over war criminals in exceptional cases. Subject to these exceptional cases both Governments intend to accept no further applications for extradition.
It will thus be seen that His Majesty's Government have virtually brought to an end trials in British courts of persons accused of all forms of war crimes. The power of extradition exercised under international obligations to our Allies and the United Nations has been brought to an end, apart from exceptional cases. Lastly, my Lords, we have handed over to the German authorities responsibility to try their own nationals accused of crimes against humanity and of membership of criminal organisations.
I will take only two or three more moments to deal with two points to which the right reverend Prelate particularly referred. He suggested that all sentences passed upon German war criminals should be reviewed, and reduced or cancelled. Before sentences of imprisonment are finally put into execution they are most carefully reviewed by the confirming officer. In addition, my right honourable 392 friend the Secretary of State for War has established a Review Board to consider all such sentences of imprisonment, and in due course, when all cases have been reviewed, the Board will make recommendations for the reduction of sentences where the circumstances make it seem proper. It is, of course, possible that such recommendations may result in the cancellation of the rest of the sentences where the term of imprisonment finally recommended coincides with the term already served. The only ground, however, for cancellation in any other sense would be wrongful conviction. All verdicts have already been exhaustively examined, and further review could be justified only by fresh evidence. In addition, it is probable that remission of sentences for good conduct will be allowed according to normal English practice. A final decision on this has not yet been taken.
As regards Spandau Prison, a number of improvements were introduced in September last, following discussions on this subject. In particular, I would mention that increased rations have been authorised, and that visits at monthly intervals, and in some case of one hour's duration, are now permitted. The prisoners have always been permitted to write and receive one letter every month, and no increase in the number of letters which may be sent and received has been authorised. As a result of the censorship regulations there is now, however, a less strict scrutiny of the contents of letters. I should be glad to look into any detailed allegations of delays. As regards the provision of newspapers, I must point out that in the English prisons it is only during the final stages of a sentence that prisoners are allowed newspapers. I have had prepared a comparative table showing the original and present regulations for Spandau prison and those for English prisons, and if the right reverend Prelate wishes I shall be glad to send him a copy.
There were a number of other points of which the right reverend Prelate gave me advance notice, and I have a good deal of information which I had hoped to be able to give him this afternoon. But, in order not to occupy any further time, I will, with the permission of the right reverend Prelate, communicate this to him by letter. Finally, may I say that I hope the statements of future policy, 393 and the information on specific points which I have given, will give some measure of assurance to the right reverend Prelate and to noble Lords generally?
§ 6.15 p.m.
§ VISCOUNT SIMON
My Lords, at this hour I will not keep the House by any speech of mine for more than a very short time. I intend to be quite definite in what I say. We are all, I am sure, sincerely grateful to the noble Lord opposite for the detailed information he has given. I shall not deal with it at all; I think my noble friend Lord Bridgeman may have something to say about it a little later. I have only two or three respectful observations to make about the decision just announced: that of the three German Generals whose fate was discussed in this House some six months ago, two are now to be released, but the third is to be prosecuted. I apologise sincerely to my noble friend opposite if I at all incommoded him by interrupting and asking a question. It did not seem to me a very difficult question for him to answer, and it is useful to know the answer. I did not interrupt him further, but it may be important to know when the decision was reached by His Majesty's Government that two of these Generals who have been in custody for four years should be released.
THE LORD CHANCELLOR
I went into this matter myself and got all the doctors over to see them on Monday afternoon last. I reported to my colleagues this morning, and the decision was taken this morning.
§ VISCOUNT SIMON
I am glad, at least, that the House is informed as soon as the decision is reached. I must say I am sorry that the right reverend Prelate was prepared so often to postpone his Motion. Who knows whether, if he had said he felt it his duty to press his Motion earlier—a very important part of which was to determine whether these people were to be tried or released—some portion of this decision might not have been arrived at sooner? However, it was arrived at this morning and was based, I 394 gather, on inquiries which my noble and learned friend the Lord Chancellor has been good enough to make quite recently. There it is. I do not say a single word in defence of any wickedness that any of these three German Generals may have perpetrated, but I venture most respectfully to express the view which I hesitated to express six months ago, that if one were to consider this matter front the point of view of policy, it is very question able indeed whether it is the wise course to prosecute the third General now. Our sitting earlier in the day was interrupted by a most important Statement made by the Leader of the House, which was also made in another place, holding out prospects for improvement in the future of Germany. With the greatest respect to others who may know more about it, I do not see what object is going to be achieved by, for the first time, serving at some date in the future—I dare say in the near future—an indictment on this remaining General, after he has been in custody for four years.
It cannot be that you hope to punish everybody who has been guilty of wickedness. It has been elementary, ever since this conception of war crime trials was set up (it was set up when I was Lord Chancellor, and carried through in the same spirit by my successor) that we were to establish what we thought to be justice and law in a limited number of cases, as an example. I recollect very well that President Roosevelt, when he assented to the announcement I had the duty of making in this House, stipulated in terms that the prosecutions must be limited to a few, for the sake of example. Are you going to add anything to the realisation of the world that wickedness must be punished, by saying: "Here is another General whom very shortly we hope to be able to charge with a war crime"? In due course, when he is given proper opportunity for his defence—which, of course, he must be given—he will be tried, and if he is found guilty he will then be punished.
What are you going to gain by that? We are not here dealing with the administration of our own domestic criminal law where, quite rightly, everybody is prosecuted whom the authorities find on sufficient grounds ought to be made the subject of a criminal proceeding. That is not the need of these international tribunals at all. They exist for the purpose 395 of establishing a principle which, whatever the right reverend Prelate may think, I regard as a justified and established principle—that, on proper proof, it is right to make an example of terrible wickedness committed in war in breach of every conceivable decent standard of conduct. I cannot myself see what advantage is to be gained by this additional case, whatever be the gravity of it, and I feel that there are certain disadvantages which a wise and far-sighted policy might feel weighed heavily upon it.
I must refer to one or two of the introductory remarks of the right reverend Prelate, because although I warmly agree with his concluding appeal, I found some of his early observations rather difficult to accept. If I understood him rightly, he attacked what I may call the Charter of Nuremberg. I must say, for my part—and here I am sure the Lord Chancellor agrees with me—that I believe the principles laid down in that Charter were in themselves perfectly just and were in accordance with international law. I am sorry that anybody, least of all a member of this House, speaking from the Bishops' Bench, should throw doubt upon that.
Then, if I understood him correctly, the right reverend Prelate told us that the view widely held, and which he did not challenge, was that in all the circumstances a soldier was to be excused because he was obeying superior orders. I would venture respectfully to remind the House that not only is that not the law, but it is recognised in Germany not to be the law. There are no doubt cases in which a serving soldier, ordered by his Commander to do a particular thing, like firing a volley, may well suppose that he is merely discharging his duty. But the British Manual of Military Law has never laid down that a man who knows that he is committing a monstrous wickedness is to be excused by saying, "Well, I was ordered to do it." It surprises me very much that the right reverend Prelate should even for a moment entertain the idea that, if a soldier were ordered by his officer to go and rape a woman, he would be guilty of no sort of crime because he had just received superior orders to do it.
THE LORD BISHOP OF CHICHESTER
I do not want to be misunderstood. I do not at all take the view which the noble and learned Viscount attributes to 396 me. I was quoting—and I did no more than quote—the British Manual of Military Law. I did not embroider it in any way.
§ VISCOUNT SIMON
Let us deal with the British Manual of Military Law. In point of fact, there never was, so far as I know, in the British Manual of Military Law in earlier days any statement such as the right reverend Prelate quoted. It is true that there was an insertion which was derived from an edition of the writings of a distinguished international lawyer. Mr. Oppenheim. Shortly afterwards he published his next edition, and very properly, realising that he had made a mistake, he corrected the statement. I have the book before me now. Perhaps the right reverend Prelate has the same book. If he would turn to page 455 he will find a useful little note, and he will see whether the German view is that a soldier is excused acts because he obeys a manifestly wicked order. After the war of 1914–18 there were certain trials in Leipzig for war crimes. Rightly or wrongly, the Government of that time thought that they could entrust the trial of certain German war criminals to German courts. My noble friend Lord Cecil will remember it well. One of the most important of the Leipzig trials had to do with the shocking conduct of German sailors who, under orders, shot unarmed individuals shipwrecked from a vessel which had been torpedoed by the Germans.
If the right reverend Prelate would remind himself, he will see that this is what is stated in Mr. Oppenheim's own book, and it is perfectly well known to anybody who has studied the subject. He says:The German Supreme Court held in 'the Llandovery Castle' case, a case decided in the course of the so-called Leipzig trials, that the defence of superior orders would afford no justification where the act was manifestly and indisputably contrary to international laws as, for instance, in the case of killing of unarmed enemies or of shipwrecked persons who have taken refuge in lifeboats.I do not wish to delay the House, but it would be a pity if we left on our record a suggestion from any quarter of the House that that is not a proper statement of the law.
THE LORD BISHOP OF CHICHESTER
My Lords, I am extremely sorry to intervene again, but I have here the official History of the United 397 Nations War Crimes Commission and the Development of the Laws of War. I would ask the noble and learned Viscount to look at page 281, where it says:At the outbreak of the First World War, in 1914, parts of the British Military Manual were revised and amplified. In Chapter XIV, relating to the Laws and Usages of War on Land, the principle was declared that military personnel acting upon superior orders were not penally liable for offences committed under such orders, and that liability lay only on the superior. It was couched in the following terms: 'Members of the armed forces who commit such violations of the recognised rules of warfare as are ordered by their Government, or their Commander are not war criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to other means of obtaining redress.…'Then it says:During the Second World War opinion developed strongly against these rules, and criticism was repeatedly expressed in the international bodies. … English writers, such as Professor Lauterpacht, observed that the British Military Manual had no statutory force and could, therefore, be amended in the face of new developments.The only point I made was that what the Charter says in the words in which it states the rule, differs in a rather important respect from the British Manual of Military Law. I have no wish whatever to say that atrocities and brutalities, committed with the knowledge that they are atrocities and brutalities, must go unpunished by whomsoever they are committed.
§ VISCOUNT SIMON
I thought that must be the right reverend Prelate's conclusion. It is perfectly true, as I thought I said, that there had been inserted in our Manual of Military Law, the proposition to which he has just referred, but it is also true—I have the passage before me—that the author of that view, realising it was wrong, said so in his next edition. As a matter of fact, the Manual of Military Law was corrected accordingly.
There may well be cases where a man, acting under orders, has no reason to doubt that the orders are lawful orders. Indeed, the Manual of Military Law used to talk about "lawful orders." But I do not think it has ever been laid down in terms by any reputable authority—and I am sure the right reverend Prelate would not think so—that, supposing the action 398 be of a monstrous character which nobody can possibly regard as lawful but must regard as wicked and abominable, it is a complete defence to say: "That makes no difference: I am only an automaton; I do as I am told." The true view is that while it is a very material circumstance that the man has been under military orders, and it is a great reason for consideration and mitigation, it would be a shocking thing if it were suggested at this time of day, in any quarter, that because a man is under military orders he is at liberty to do just whatever he sees fit.
I hope the right reverend Prelate will not think I am wishing to saddle him personally with any reproach; but it does seem to me that if any noble Lord is going to support an issue in your Lordships' House it is important that he should come out quite definitely. I myself think that the Charter of Nuremberg was a well-drawn Charter. It has already been defended by one noble Lord. But on one point I feel the gravest doubt. I have no illusion as to the gravity of some of these war crimes. It may be that the noble and learned Viscount the Lord Chancellor is going to reveal, as he did before, some shocking incident; but the question remains, as a matter of political wisdom four years after the war: Are you doing any good by pursuing these prosecutions? The Americans have washed their hands of them; they will have nothing to do with them. We ourselves have wound up our organisation, and people have had to be recalled for the present trials. Even now the indictment has not been served, and it is not for me to estimate how long it may be before the matter is finished.
I am sorry to express what may seem to be a dissenting note. I restrained myself last November, though my own view then was that it would be better to abandon these trials. I do not find it consistent with my duty, to say to-day that I think it is a wise decision to proceed with these prosecutions.
§ 6.33 p.m
§ LORD HANKEY
My Lords, I came here to-day to support to the full the Motion of the right reverend Prelate. When the statement was made from the Government Bench, I hoped at first that it was going to give the right reverend Prelate considerable satisfaction, but I am sorry to say I am very disappointed 399 now. Apart from the trial of Von Man-stein, there seem to be trials still going on all over Germany. I entirely agree with what my noble and learned friend Lord Simon has just said, that these trials ought to be stopped and that His Majesty's Government ought to set the example in the matter. Still, I congratulate the Government on having made some advance in that direction, and I hope that when I raise the question of Japanese trials a fortnight hence I shall find a greater advance.
To appreciate the position, I think we have to review it rather broadly. These trials began with the Nuremberg trials; they are really all offshoots in one way or another. Nuremberg was born in a bad year, 1943; a policy of virulent threats was adopted in 1943 and has bedevilled the world ever since. That policy, in which, so far as I am aware, no Commander-in-Chief or Chief of Staff had any concern, was inaugurated by the announcement by President Roosevelt and Mr. Churchill, but not by Mr. Stalin, who was not present, of "unconditional surrender" at Casa Blanca on January 20, 1943. That was a great gift to Goebbels' propaganda, rallied the disillusioned German people to Hitler, strengthened the resistance of the enemy and greatly prolonged the war by making it impossible for the Allies to offer peace on less humiliating terms in either the West or the Far East. Then, on November 1, nine months later, came the announcement from Moscow of the intention of the Allies to punish the Nazi leaders. That threat, like all threats, stimulated retaliation and again postponed peace sine die, because it threatened everybody who could make peace; they were told that they were all to be killed or imprisoned. Even today we have no German Treaty. Moreover, as a result of the bitterness engendered, the war became a fight to a finish and, through no fault of the Allied Service chiefs, degenerated into a sadistic orgy of competitive frightfulness—V1 and V2 weapons, U-boat warfare and frantic war crimes on one side, and, on the other, unlimited bombing, culminating in the crowning catastrophe of the atomic bomb.
I think history will attribute to this ganglion of desperate policies the following consequences: first, the prolongation 400 of the war to a point where we were bled white while Russia was extending her grip over all Eastern Europe and accomplishing Stalin's published aims; secondly, the failure to make peace with Germany for four years or more after the end of hostilities; thirdly, the replacement of German tyranny by Russian despotism, the estrangement from the Western Allies of Germany and Russia, the disappearance of the historic frontiers between Eastern and Western Europe and of the balance of power for their defence; and fourthly, a legacy of bitterness, confusion and hatred which stifled the United Nations from its birth and still continues.
So much for the wider policy and its results, in which the trials of war criminals had, and unfortunately still have, their place. Of the trials themselves it can already be said that, besides starting new trials all over Germany, they have been imitated all over Europe, resulting in the judicial persecution and often death of countless and often innocent people—kings, statesmen, cardinals, politicians, generals, diplomats and I know not whom—and that again will continue until the German and Japanese trials are brought to an end. Secondly, it can be said that a deplorable precedent has been set for future wars. At both Nuremberg and Tokio, as the right reverend Prelate has said, the victors tried and judged the vanquished. The tribunals were established by and derived their powers from the victors alone, for the trial of the vanquished and of no one else. It was by the victors alone that the Charter and the Code of International Law were drawn up. There was something cynical and revolting in the spectacle of British, French and American judges sitting on the Bench with colleagues who, however impeccable as individuals, represented a country which before, during and since the trials has perpetrated half the political crimes in the calendar. And in spite of the specious arguments on page 38 of the Nuremberg Judgment, I do not see how anyone can deny that under a cloak of justice these trials were just the old, old story—one law for the victors and another for the vanquished. Vae victis!
To grasp the political danger of the precedent, let us imagine that the countries of Eastern Europe have 401 over-run many of the countries of Europe. Can you imagine that they would not follow the Nuremberg precedent faithfully, writing their own charter, defining and creating their own "international" laws and establishing their own tribunals? The employment of the atomic bomb would be decreed as a breach of the laws of war—which is an arguable proposition—and everyone they could lay hands on who had ever been concerned in its use in any war would be tried and hanged. The Atlantic Pact has already been denounced by Russia and her satellites as a breach of international law, and those who have aided and abetted it and been concerned in its military planning would be advised not to fall into Russian hands. From Sir Alexander Cadogan's remarks at the United Nations a day or two ago, we know how their trials are conducted:The official view of the administration of justice in these countries is that it should not be impartial, but must serve the ends of the régime in power. One of the few certain things we know about the trial of Cardinal Mindszenty is that the judge was not independent because he was told what verdict he was expected to give, and knew that his job depended upon his giving it.If we were to get some of the judges from Nuremberg in a corner and ask them in private what was the attitude of one of their colleagues, I wonder what they would say.
Another dangerous precedent created by this trial is in connection with defensive planning. There are, or will be, defensive planners with the United Nations, regional organisations like the Atlantic Pact, or individual nations. Upon the discipline and loyalty of the planners, whether military or civilian, to the supreme control of their respective Governments the whole safety of the nation or of any group of nations will depend. But those primitive virtues of discipline and loyalty seem to have been forgotten by the pedants who devised Article 8 of the Charter, which has already been mentioned. That lays down that:… the fact that a defendant acted pursuant to an order of his Government or of a superior shall not free him from responsibility.That confronts the individual planner with an impossible dilemma between duty and conscience. Shall be obey the order, or shall be seek the shelter of some international law—as it will be interpreted, not necessarily by his own fellow countrymen, not necessarily by the 402 Nuremberg Charter (which we are told was so good), but by the victor in the war, who may be his enemy, with a totally different ethical standard? It is just placing a premium on cowardice and escapism in the proper carrying out of orders.
Contrary to general belief, the history on which the Nuremberg judgments and findings were based is not accurate. I have made a careful comparison between the invasion of Norway, as described in the judgments, and the description of it in Mr. Churchill's memoirs The Gathering Storm. Of course, those memoirs were not published at the Lime, but that evidence was available if the tribunal had thought it worth while to get it, but their judgment was based entirely upon the evidence that they obtained from the Germans. They did not and out what was going on in the Allied countries. At this late hour, I am not going to burden your Lordships with the elaborate survey that I have made on that subject, but I will just mention one or two points. Had the judges called for that evidence, they would have discovered that the planning of aggression first began in this country. It was on September 29, 1939., four days before Admiral Raedar's memorandum, which is always quoted as being the first step in German planning, that Mr. Churchill called for plans here. That was the start of the plans for what was eventually carried out, namely, the mining of the Norwegian leads which Mr. Churchill described a little later on as ranking as "a major operation of war." He then discussed the extreme probability that, if it was carried out, Germany would spread the war to Norway and Sweden, which he thought would be to our advantage; and towards the end he put in a plea for anticipating them, even though it meant a violation of neutrality. Those are all just the things that the Germans were doing and thinking about, mutatis mutandis.
Then the judges would have had their memory recalled to the "Altmark" incident, which was actually the first breach of international law, apart from the sinkings of neutral ships. The Norwegians protested violently against this as a breach of international law and, as Mr. Churchill comments, it no doubt gave the Germans "a spur to action." All those things were overlooked by the 403 judges because they took no evidence from the other side. In my opinion, the result is that their summing-up is quite incorrect—namely, that "in the light of all the available evidence, it is impossible to accept the contention that the invasions of Denmark and Norway were defensive and in the opinion of the tribunal they were acts of aggressive war." The very important operation of the mining of the Norwegian leads actually took place on April 8 and was criticised by the Norwegians. German retaliation was just coming but, all the same, they protested against it, and the Germans came in the next day—April 9. So both in the planning and in the execution we were beforehand. I think that was a very good thing. I think it showed great foresight on Mr. Churchill's part. But we did actually begin the planning and we actually committed the first aggression, though by a very short head. If the judges had obtained that evidence, the judgments would have been different.
But, if the tribunal's account of the Norway campaign is wrong history, that is equally true of the even more important introductory review of the rise of Hitler and his gang with which the Judgment opens for the purpose of showing the background of the aggressive war and the war crimes charged in the indictment. That is a serious statement to make. It is true that there are very few errors of commission. It is a perfectly correct account, if you look through it. But the sins of omission—they really make one's hair stand on end! Here is a great historical account of the fall of a nation to an abominable system and leader, and there is hardly a single word on what was the provocation. It is true that they do just mention one point—namely, Hitler's aim of removing "the disgrace of Versailles." That appealed naturally to the German people, as have all appeals for freedom. But not a word appears of such provocations as the occupation of the Ruhr in 1923 which, rightly or wrongly, was denounced at the time by the leaders of every British Party and in every Dominion as a flagrant aggression. There was not one word of the use of black troops in the Rhineland garrison, which was very irritating to the Germans; nor of the attempts to detach 404 Bavaria and Saxony from Germany; nor of the endless pinpricks over reparations up to 1932.
There is another great cause of the Second Great War which is not even mentioned—namely, the failure of the Allies who had both the right under the Treaty and the force, though they lacked the will, to stop German rearmament. Mr. Churchill mentions that point at the very beginning of The Gathering Storm in this caption:Theme of the volume: How the English-speaking peoples through their unwisdom, carelessness and good nature, allowed the wicked to rearm.It was not only the English people; it was others too. But by slackness and by such things as the British Ten-years' rule, they did allow the Germans to rearm. The Allies were gradually reduced to such a state of moral and physical disarmament that in the 'thirties they had neither the will nor the power to halt the Germans. Those are some of the major causes of the war. It will be said, in the 'twenties the Allies goaded the Germans beyond endurance, and in the 'thirties they did not stop them as they ought to have done; the feeble protests that were made were almost a condoning of German aggression.
I am always told that all the convicted persons were judged and convicted of war crimes, as well as of political crimes, and that the sentences imposed were not affected by the judgments on crimes against peace. That is a most unsatisfactory answer, because to my mind it is clear that before history a cardinal error has been committed in indicting a whole nation of political crimes, without including any extenuating circumstances such as those I have mentioned. I do not confess to any great affection for the Germans but I admit that I am very jealous of our reputation for fairness, and I am horrified at the idea of future Anglo-German relations being poisoned by false history, which will also give the Germans an excuse for making martyrs of Hitler and his gang. These defects were due to two causes. One was that the tribunal never took any evidence of what was being done by other countries; and secondly, that at the time they had no expert assessors with them.
Summing up, I cannot see that we gained anything by the Nuremberg trials, and I shall seek to show in a 405 fortnight's time that we have gained nothing from the Tokyo trials. Therefore, I most cordially support the right reverend Bishop's proposals. The most urgent thing is to bring all these trials to an end, and if other nations will not agree, to decline any further British co-operation. We must not be too mealymouthed about it. It is four years after the war. As I said on February 18, 1948, from this Box:As a first step, trials and prosecutions of war criminals should be dropped and there should be a universal amnesty. 'Vengeance is mine, I will repay,' saith the Lord. Let us leave it at that. It is not by fear and threats that the world can be won to decency and kindness, but by charity.
§ 6.56 p.m.
THE EARL OF CORK AND ORRERY
My Lords, I rise to support the Motion, but so much that I had hoped to say has been better said that I shall cut short my remarks, which, consequently, may appear rather disjointed. Before I come to the first part, I must say that I think the noble Viscount was very severe on the Bishop. I have in my hand an extract, which I took two hours ago, from the British military manual, and what was said is perfectly correct. That was the law until April, 1944, and—
§ VISCOUNT SIMON
Perhaps my noble and gallant friend would excuse me. I did speak with a greater tone of censure than I ought to have done, and I am sorry. I was very anxious to put as clearly as I could, that it really is not the case, and I do not think it has ever been the case, that because a man is given orders therefore he is completely innocent whatever he does. I was very anxious that that should be maintained. I apologise to the right reverend Prelate. I think I did speak with more harshness than I should have done.
THE EARL OF CORK AND ORRERY
My Lords, my principal object in rising is to ask that the British rule may be re-established, except, of course, in the sort of crimes that have been mentioned—namely, crimes against humanity. But there is a borderline, and it is extremely difficult to decide whether a crime is a crime against humanity or is a war crime. I am not going to speak about the higher grades, because that point has been ably dealt with, but I am going to take your Lordships a little lower 406 down the scale. We have heard about the planners and so on, and I want to recall to your Lordships that some months ago I spoke on behalf of some German officers who were going to be tried for firing on Greek seamen from a steamer they had sunk. That trial was held, and the following evidence came out.
The captain, who was a lieutenant-commander of some standing, had told his officers that he was going to destroy all traces that might, give away to an Allied air patrol the presence of his submarine; and with teat object he ordered them to fire on the wreckage. He knew and accepted the fact that seamen survivors of the ship were clinging to the wreckage, but he said that he considered the carrying out of his mission, combined with the safety of the ship he commanded and the crew he commanded, took first place. I feel myself that it may have been a severe view to take, but that it is a view which every officer in such a position ought to take. His first consideration must be to achieve the objective which he has been set, and the second to do that with the minimum of risk to his ship and the men under his command. That principle will hold good for any Service. At the time when he expressed this view and stated that he was going to do this, the officer had on the bridge with him a sub-lieutenant—a boy only twenty or twenty-one years of age. This young officer was making his first voyage in a ship on active service. It was his first experience of the excitement of firing against an enemy. He was ordered by the captain, who, as I have said, was a man of long experience, to open fire. He complied, and he took other measures—though these were not with the object of firing on the wreckage. We have killed that boy for doing that. I say that he was doing his duty. I believe that in the view which I take on this matter I shall have the support of a great number of officers in all our Services. The boy received an order, and he had no time to consider or discuss whether or not what he was ordered to do was legal.
May I, in this connection, read your Lordships an extract from the Manual of Military Law:… undoubtedly a court confronted with the plea of superior orders is bound to take into consideration the fact that obedience to military orders is the duty of every member of armed forces, and that the latter cannot 407 in conditions of war discipline be expected to weigh scrupulously the legal merits of the orders received.I thought to myself, when I saw the noble and learned Viscount opposite holding up that great tome, that I have never seen that book on any ship or submarine, in any camp or anywhere else connected with the Forces. That Manual of Military Law was their guide at the time, and it is made in a convenient size for carrying in an officer's pocket.
So far, in what I have told your Lordships about this episode of the submarine I have not come to the worst part of it. I have stated that the captain was shot, and the boy was also killed. The court found the boy guilty, though I think that many people may feel there was a great deal to be said for him. However, on the principle of divided responsibility the sub-lieutenant was tried and shot—I should call it something more than an execution; I should call it something else altogether. But to continue with the story of the episode. Among the group on the bridge of the submarine was a leading seaman—he would correspond in rank to a lance-corporal in the Army. He was only nineteen years of age, and he, too, was ordered to fire on the wreckage. In obedience to the order, he fired two short bursts; that was all he did. What did we do to that boy in justice? We gave him fifteen years penal servitude.
I think that this and similar cases ought certainly to be revised. This watering down of the responsibility for the giving of an order, and holding responsible those who carry it out, seems to me to weaken the whole chain of mutual confidence which binds together all in a Service. Everyone should be able to trust his superior and to carry out without question an order from him. And the superior ought to be able to depend on implicit obedience. If the superior gives a wrong or inhuman order, well, you can shoot him afterwards—I am not defending inhumanity. But there are cases, of course, in which it is very hard to judge.
I have in mind such a case as that of a military patrol which was told to carry out a certain operation and, in doing so, over-ran a place where there was a number of enemy troops. This episode, of which I am thinking, took place in Burma. The patrol could not take the 408 twenty or thirty Japs whom they encountered with them, and still less could they leave them where they were, for they would have given away the presence of the patrol in the area and that would have had disastrous results. In this instance, the Japs were taken by surprise, and without weapons. Doubtless, if they had not been, they could not have been taken at all. In the circumstances, the only order which the officer in command felt that he could rightly give was to eliminate them by shooting. And that was done. In my opinion that was correct, but you could have tried that officer and found him guilty if he had tortured or flogged the prisoners to death. There are a number of eminent legal authorities in this House now, and I should like to be told whether that officer was or was not guilty of a war crime, or of an offence against humanity, in having those twenty-odd prisoners, who were unarmed and taken by surprise, executed.
I say that this easing of the strict rule of the full responsibility for an order by one party and of unquestioning obedience by the other does weaken the bond between superiors and inferiors in a Service. To my mind that is a very serious thing. I may be told that it will not make any real difference. Superficially, it might appear that it would not. But I think that what may well happen is that just at the time when you want the bond to be at its strongest—as, for example, when it appears probable that you may meet with defeat and the utmost effort on the part of everyone is called for—the juniors will lose confidence; when they get an order they may say: "I do not think I will do this, because if we are captured I shall have to answer for it." Thoughts and impulses of that kind, when the circumstances are very difficult, can spread very rapidly. When such sentiments once begin to be expressed among the members of an organised body in the Service, general mistrust follows, and defeat is not far off.
I urge His Majesty's Government that when these matters are reconsidered, we should go back to our old-fashioned British law and so do all we can to reestablish implicit trust between all ranks throughout all our Fighting Services. If we do not do so, we may find that just at the time when we are placing most dependence upon it, discipline will break; 409 there may be a disintegration of forces and men may seek to ensure their own safety, with results which can readily be imagined.
§ 7.8 p.m.
§ LORD AILWYN
My Lords, I desire in the briefest manner possible to say something about the case of the one remaining Field-Marshal—Field-Marshal von Manstein. I am glad I have not to speak on behalf of all three of the officers in question. To me this seems to be one of the most difficult anti intractable problems that have ever been debated in your Lordships' House. I think it goes to the very roots of the meaning and definition of justice. This question of what is justice, considered in the particular circumstances with which we are concerned this evening with regard to this Field-Marshal, is only a shade less perplexing to me than the question, "What is Truth?" which w as posed some 2,000 years ago, and is still being asked by the human race to-day. As I see it, there is no political issue here. In that, with the greatest humility, I differ from the noble and learned Viscount opposite, who spoke of the political wisdom of this issue.
To me this is a question which each one of us has to decide according to the dictates of his conscience. For my part, I have given this matter all the thought of which I am capable. I listened to every word of the debate in your Lordships' House in November last, and I read and re-read the reports of the speeches made that day. Those of your Lordships who listened to the grave and solemn pronouncement of the Lord Chancellor on that occasion will not easily forget that moment in his very powerful speech when he raised a corner of the curtain and revealed something of the horror that Jay behind. In common with the great majority of your Lordships on that day, I, personally, found the case which he made for going forward with this trial to be unanswerable. That was six months ago. This Field-Marshal is still languishing in prison, as were the others, I understand, until this morning.
No projected date has yet been given for this trial. No doubt there are good and sufficient reasons for all this protracted delay and, not knowing the circumstances, I shall certainly make no criticisms of this matter, but I have come to the definite opinion that what would 410 probably have been justice a year ago, what might possibly have been justice six months ago, can no longer be justice to-day, in view of the inordinate delay in bringing this man to trial. I believe that a decision to pursue this trial in existing circumstances would be repugnant to the feelings of all thinking men and women in this country and in all other Christian countries. I believe that the fair name of British justice might be damaged irretrievably. I have the greatest possible sympathy with the noble and learned Viscount the Lord Chancellor in the extremely difficult task with which he has been, and still is, faced. I am one of those who believe that it is a task to which this country should never have been entrusted. I should have supposed it was clearly an American responsibility. The evidence in support of this contention appears to me to be overwhelming.
I should like to say a further word about treaty obligations. I venture to suggest to your Lordships that the Soviet Government have placed themselves beyond the pale of association in the comity of nations and that their behaviour justifies a repudiation of whatever obligations we may have entered into at a time when we had no reason for believing that they were going to behave in the utterly abominable way in which they have behaved. We know to what grim fate we should be handing over this man, if we did hand him over—a fate even worse than that to which he and the other Generals were going to condemn our men in handing them over to the Gestapo. I venture to suggest that the Government would do well to heed what I believe is the intensity of feeling among all shades of opinion over this projected trial. I believe it would be wrong and not in accordance with Christian principles or the British code of justice if the Government were to decide to proceed with this trial. Equally I believe, for the reasons I have given, that it would be a hideous crime to hand this man over to the Russians. Therefore I plead with the Government to revise their present policy and announce the abandonment of this trial.
§ 7.13 p.m.
§ VISCOUNT BRIDGEMAN
My Lords, I have reached the conclusion that the time has come, and had come long since, 411 to bring an end to the war crimes trials. In reaching that conclusion I travelled a rather different road from that travelled by the noble Prelate who moved this Motion and from that travelled by some of my noble friends. At the time when the war crimes trials were being planned, in 1945, I had a good opportunity of judging the question, because I was officially concerned with some of the administrative problems which surrounded the trials. I was not concerned with legal problems, but with administrative problems, but that gave me an opportunity of seeing something of the quality of the evidence likely to be offered when these trials took place. I formed the view then, and I still hold the view now, that in essence these trials were just and right. I formed that view having some knowledge of the Manual of Military Law and the doctrine of what is a lawful order and what is not.
As the same time I formed another view, from which again I have had no reason to depart—the view that whereas it was right to bring war criminals to swift justice (and I think I am right in saying that the words "swift justice" are used in the Moscow Declaration), there would come a time when, if these trials were still continued, the effect would not be that which was hoped for but one which would be harmful to what was bound to be the policy of the victorious allies—namely, to build up a new and sounder Germany. I think that is the state of affairs to which we have come. These trials have been going on far too long, and therefore we are running a risk of seeing the efforts which we are bound to make to put Germany on her feet, and which have become all the more necessary since the welcome news given to the House this afternoon, interfered with. That was why all my noble friends and certainly I myself were very glad to hear what the noble Lord, Lord Henderson, said to us a few moments ago. His statement meant that no further war crimes trials would take place under British tribunals, and that a similar state of affairs would exist in the American zone.
Only three classes of trials remain to be dealt with. The first are trials which the Germans see fit to bring. If the Germans see fit to promote trials against their own nationals, no one can claim that it interferes with the rehabilitation of Germany. 412 The second class are those trials which the French may see fit to bring. Here one would hope that by this time the French would have brought to book the majority of those who should be brought to book. Although one sympathises very much with the French and realises that they are in a different position from the countries which were not invaded, nevertheless one hopes that it will not be long before they, too, can close this chapter. In practice the position is one in which we are left to consider only the question of the trial of von Manstein. Unfortunately, this debate has been so arranged that the question of this trial has had to wait until the end. We are all waiting to hear what the learned and noble Viscount who sits on the Woolsack will tell us in giving the reasons why this trial should go forward. Until he does, it is not for me to say whether it is right or wrong. All I can say is—and here I am much in agreement with my noble friend Lord Ailwyn—that every day the trial is delayed makes the arguments against the trial stronger and the arguments for it weaker. If we are to be offered good and convincing reasons why it is still right to try von Manstein, then I sincerely hope that we shall be given a better assurance than we were given last year and that this trial will really be conducted in such a way as to make a belated attempt to live up to the ideal of swift justice laid down in the Moscow Declaration.
§ 7.20 p.m.
THE LORD CHANCELLOR
My Lords, this debate was to call attention to the present situation in Germany in relation to war crimes trials. Though your Lordships, perhaps fortunately, are not bound by strict rules of order, I doubt whether the irrelevancies relating to this matter have ever, certainly not in my time, reached the heights, or perhaps I should say depths, which they have reached to-day. I had a chance of talking to your Lordships about this matter in November last. It is not my intention today to go over the ground I then covered, or to discuss in any way the details of this case, because I think that to do so would be unfair. But I want to say this at the outset. For the last six months I have found this whole matter one that has been a source of great worry to me. I do not withdraw a single word I used which the right reverend Prelate quoted 413 earlier. But when I hear a discussion raised as to the responsibility for superior orders, and that sort of thing, I wonder what on earth that has to do with the case.
Incidentally, may I take this opportunity of asserting what the law is, and always has been? It is that acting on superior orders is no defence to a charge for committing a crime. Any lawyer will learn that in his first year of study. There can be no doubt about it at all. But it would be a most relevant factor in determining punishment, and a most relevant factor for me to consider in determining whether I should give the advice that a particular trial should go on. Obviously I have to consider these factors. The first factor is: What is the nature of the offence of which the man is accused? If it be a case where he was carrying out orders imposed upon him by some superior, be it a political or a military superior, obviously I might come to a wholly different conclusion from the one I might feel bound to come to were it a case where a man, on his own responsibility, was said to have committed a series of crimes of the most frightful nature.
The first proposition I would enunciate, therefore, is this. In making up my mind as to what advice to give, I must have regard to the gravity of the crime. If the accusations are true, this man is one of the major war criminals of the whole war. The second matter I must have regard to in making up my mind concerns the treaty question. It is the fact that von Manstein has been asked for both by the Russians and by the Poles; and it is the fact that his offences are alleged to have been committed largely in those areas. I think it is only fair to say this in regard to the Polish trials: that we have had experience of the Polish trials and they have been quite fairly conducted. There is no doubt about it. I am not saying anything about any other trials, but I am saying that the Polish trials have been fairly conducted. Here is a case of a man who is accused of having committed the most frightful crimes against Polish nationals, and the Poles have asked that he should be handed over.
In November of last year I discussed this matter with your Lordships and told you that we had reached the conclusion 414 that it was our duty to put these three men on trial. Reports reached me in due course indicating that two of the men were not fit to stand trial. Unhappily, like everything else in this very difficult case, even those reports were not unanimous, and I came to the conclusion that the best course I could take—with the approval of all my colleagues concerned—was to get the doctors concerned over here to see me. I asked the Attorney-General to come and sit with me, and I was fortunate in being able to secure the services of Professor Sir Henry Cohen who, as your Lordships probably know, is one of the greatest physicians in this country. Naturally, many of the reports were technical and really conveyed nothing at all to my mind. Having heard the doctors (we heard seven or eight of them) ultimately we came to the unanimous conclusion—the doctors, Professor Cohen and ourselves—that the health of von Rundstedt and the health of Colonel-General Strauss was not such as to justify us in exposing them to the ordeal and strain of a trial which must last, I suppose, six to eight weeks. But, equally, everybody was unanimous—including one of the eye doctors who saw von Manstein, and including Professor Cohen—that von Manstein was perfectly fit to stand his trial.
I deplore the delay, of course. But do not let us talk about four years. It was not until August,1947, that we knew anything about the criminality of these people. Then, I think, we were quite right to press the Americans to take on this work. They were then actually engaged in trying the subordinates—the subordinates received sentences of some twenty years' imprisonment—and I sincerely hoped that they would be able to extend their trial to this man. That caused further delay. I am quoting from memory, but I think it was on December 23 that the matter came to me. We decided, rightly or wrongly, weighing the delay against all these other matters, that we would embark upon this trial. By that decision we must stand. I regret that I then said I hoped—and I expressly stated that it was only a hope—that we should be able to stage the trial by March. The immensity of the task has been far greater than I anticipated, and there has been—I deeply regret it—a further delay of some months. But, as I said just now, the indictment is almost 415 ready. I myself have seen it. I am not going to discuss it further, but I tell your Lordships that it is a very grave document. As I have said, it will be served upon this man in ten days, or something like that time, and then—always bearing in mind, of course, that we must give him whatever time is proper and reasonable for him to make his defence—we must stage the trial as quickly as we can. Your Lordships may rest assured that we shall conduct that trial in accord with our great traditions.
Here I feel that I must say a word about the speech of a noble Lord for whom we have a great regard and affection, Lord Hankey. I should be proud to think that I could ever render to this State one-hundredth part of the service he has rendered. Yet I did not think that in his speech to-night he was rendering a service to his State. I regret very much that, without giving any indication to me or to the noble and learned Lord, Lord Oaksey, he should make these attacks on the Nuremberg Judgment—on the inaccuracy that was shown, and so forth. Of course, I am not in a position, without having had the slightest notice, to reply to the charges he made. For myself, I regret very much the way he seemed to speak in one breath of two things which are poles asunder—namely, the Nuremberg trial, on the one hand, and the trial of Cardinal Mindszenty, on the other. I regret that he found it possible to say that she thought it revolting for our judges to sit on the Nuremberg trial. I believe the Nuremberg trial performed a great service. I believe, although the right reverend Prelate does not, that not the least of its services was the laying down of the doctrine that the waging of aggressive war is a crime. But that has nothing to do with the present case of von Manstein's trial. He is not accused of anything of that sort. He is accused of breaches of the usages of war, with the murder on a huge scale of vast numbers of people.
§ LORD HANKEY
I should like to explain to your Lordships that I could not give notice of the line I was taking because I was on duty in Paris, and I returned only late yesterday. I was still getting together the case which I have made. I would like to say this: I was not speaking on a legal point, but on a 416 political point, to show that from start to finish—though unfortunately they have not finished—this policy of trials has bedevilled the situation in Europe. That was why I was supporting the right reverend Prelate in his case for abolishing them.
THE LORD CHANCELLOR
I understood the noble Lord to make special reference to the conclusions of the Nuremberg trials—for instance, about the Norwegian invasion, suggesting that we had started it. Quite obviously, the Germans had planned for days and weeks before they ever went there; and with the greatest respect to the noble Lord, it seems to me idle to say that we had done anything, either in that or in the invasion of the Ruhr in 1923, or in the use of black troops, which in any way justified Hitler in the policy he followed. Those are utter irrelevancies to this debate, and for my part, having made, most humbly and respectfully, to the noble Lord the protests which I felt I ought to make, I desire to say no more about it.
§ LORD HANKEY
I do beg the noble and learned Viscount to read Mr. Churchill's book and to compare it, as I have done, with the account of the Judgments of the Nuremberg tribunal. I think he will have to arrive at the same conclusions as I have.
THE LORD CHANCELLOR
I shall certainly take the opportunity of reading the documents to which the noble Lord has referred, and if he will do me the favour of re-reading again his own words, I think he will understand why I—and I think I am not alone in this view—rather regretted the way in which he expressed himself. That is all I have to say. I was glad to hear the announcement which the noble Lord, Lord Henderson, made as to our general policy, which I hope will go some way towards satisfying the right reverend Prelate. But for my part, having come to this conclusion in November, and having regard to the circumstances of the case (and, after all, I am in a slightly different position from that of any of your Lordships, because I am the only one who knows something of the circumstances), I venture to think that if your Lordships were in my position you would probably agree with the line that I am taking.
§ 7.33 p.m.
THE LORD BISHOP OF CHICHESTER
My Lords, I am sure that the whole House is grateful for the debate as it has pursued its course, and especially for the full statement made by the noble Lord, Lord Henderson. I think the point of his statement is to be summed up in this way: that from now on there is to be in British courts a complete cessation of prosecutions and trials that have not been begun, with the single exception of von Manstein. The noble Lord also said that a programme of review was already in operation, though new evidence would be required before cases that had been reviewed would come up for further consideration. I think I may take it from what the noble Lord has said that the spirit which animates the programme in the American Zone will in future animate the programme in the British Zone. It is a satisfaction that America and the United Kingdom go hand-in-hand in this total policy of clemency where possible, and in the cessation of prosecutions.
I do not want to trespass further in the controversy about the law relating to superior orders, but I am grateful to the noble and learned Viscount, Lord Simon, for the kindly words in his last remarks, when he did me the honour of making an apology. What I thought was a little harsh was obviously due to some misunderstanding. All that I wished to say in my introductory observations was that there were points of criticism of the law under which the judges actually did their work.
With regard to the excepted case of Field-Marshal von Manstein, I am sure that everybody has appreciated very much the spirit in which, from start to finish, the noble and learned Viscount on the Woolsack has considered this matter. It has been a matter of painful anxiety and troubled conscience to him throughout. I only wish that it had been possible for him to fall in with the wishes expressed from so many quarters of the House, that in all the circumstances at this stage von Manstein should be set free. It is, of course, impossible, and would be entirely wrong, as the noble and learned Viscount said, to say anything for or against the trial itself. I know nothing about the circumstances of the indictment; I express no opinion on the charges, though I have seen them. But I still wish that 418 the trial was not to take place. I am glad that the trials of Rundstedt and General Strauss have been abandoned. I appreciated the noble and learned Viscount's assurance—though none of us needed it—that when the trial comes it will be conducted in accordance with the best tradition of British justice, both in spirit and in letter. With that remark, and thanking your Lordships for the patience with which you have attended to my poor remarks, and the interest with which you have followed the whole debate, I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.