American Nuremburg Prosecutor Dismayed by US Policies

Powerful essay:

I witnessed the horrors of World War Two. I was honorably discharged as a Sergeant of Infantry, and the War Department awarded me five battle stars for not having been killed or wounded. I had seen horrors which are really indescribable - the inhumanity of human beings to other human beings.

The first thing to understand is the mentality of those who made the war and the atrocities possible. The crimes of war are not limited to one particular country or one type of person. And I thought I'll talk to you about someone you've probably never heard of and a trial you've probably never heard of before. I was the Chief Prosecutor in a murder trial that convicted, 22 defendants convicted of murdering in cold blood over a million people, including hundreds of thousands of children, shot one at a time. What kind of people can commit such abominable crimes and for what reasons?

The lead defendant was a gentleman was SS General Otto Ohlendorf, Doctor Otto Ohlendorf, father of five children. He was polite and I'm sure he was kind to his cats and dogs. He sent his top secret reports to SS Headquarters in Berlin, saying how many Jews , Gypsies and others his men had killed in which town as the Wehrmnacht advanced into Poland and the Soviet Union. Unfortunately for them, we fond the complete daily top- secret reports of the massacres.

The quadripartite trial by the International Military Tribunal (IMT) at Nuremberg in 1946 was followed by a dozen lesser-known subsequent proceedings designed to reveal the involvement of broad segments of German society in the commission of Nazi crimes. The man in charge of these subsequent trials, which followed the IMT trial where Robert Jackson was the Chief Prosecutor, was a distinguished lawyer, General Telford Taylor. We discovered this set of reports from these killing squads called Einsatzgruppen (literally Action Groups), which was a name deliberately designed to disguise their mission, They were composed of four units totaling about 3000 men assigned to follow the German troops into Poland and Russia and annihilate all the Jews, as well a Gypsies and some others. I was in charge of the US army office in Berlin assigned to collect evidence for the additional Nuremberg trials. I presented the newly discovered evidence to General Taylor and urged that we start a separate trial against the Einsatzgruppen mass murderers. Taylor recognized the significance of the evidence but was hesitant. "We haven't prepared it. The Pentagon hasn't approved it. We don't have staff. We can't do it." I replied, "You can't let these murderers escape."

I had won a scholarship at Harvard Law School on my exam in criminal law. I had always been interested only in crime prevention as a career. Taylor asked: "Can you do it in addition to your other work?" And I said, "Sure!" So I was appointed Chief Prosecutor, I rested my case in two days. We gave the defendants copies of every piece of evidence we intended to produce. Their arguments in rebuttal took about five months. Their alibis didn't stand up.

The lead defendant, Dr. General Otto Ohlendorf, explained why it was that he reported that 90,000 Jews had been eliminated, they never used the word "murder" - He calmly declared that it was necessary in self-defense...

"What do you mean, 'self defense'? Germany attacked Poland, Norway, Holland, Sweden, and France, etc. Nobody attacked Germany. Where's the self-defense?"

"Well," he said, "we knew the Soviets were planning to attack us, so we had to attack them in self-defense."

"Well, why did you kill all the Jews?"

"Well, everybody knows the Jews were in favor of the Bolsheviks, so you have to kill all the Jews too."

"Why the little children? Why did you kill all the little children?"

"Well, if they grow up and they become enemies of Germany when they find out what happened to their parents that would be dangerous a threat to our long-range security, so we'd better get rid of them too."

He was saying to me, "Don't you see the logic of it all?" And so he explained that.

I said, "Didn't you have any qualms about killing all these people, little children and all that?"

"No," he said, "because we relied on the head of state, Hitler. He had more information than I had, and he told us that the Soviets planned to attack, so it was necessary in presumed self-defense."

In our military jargon, we call such assaults a "preemptive first strike", The US military policy today does not preclude first strike by the United States in order to prevent a presumed attack from another side. That Ohlendorf argument was considered by three American judges at Nuremberg, and they sentenced him and twelve others to death by hanging. So it's very disappointing to find that my government today is prepared to do something for which we hanged Germans as war criminals.

After long deliberation, I concluded that the best and perhaps the only way to prevent mass atrocities was to stop war-making itself. Stop war-making?. Well, how do you stop war-making? Is it possible?

I began to study that subject in great detail. My conclusions are laid bare in my books, articles and lectures. They are available free on my web site. I learned that, if you want to have a peaceful society, any society, whether it is in Boca, or in the United States or in the world, you need three components. You need laws, to define what's permissible and what's not permissible; you need courts, in order to determine whether the laws have been violated and to serve as a forum for settlements and you need a system of effective enforcement.

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Our government has gone to great pains to be sure that no American will be tried by any international criminal court for the supreme crime of illegal war-making. In condemning others for that crime we also proclaimed that the law must apply equally to everyone. It is carved on the entrance to our Supreme Court that promises "Equal Justice Under Law." Why does the US foul its own nest by failure to uphold the principles of Nuremberg which inspired the world?

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Progress is never made in a straight line. At the end of May 2010, I was invited by the German government to come to Berlin to be awarded the Iron Cross, which is their highest Medal of Honor. I had some hesitation in accepting it. On reflection, I decided that it would be unfair to rebuff the young generation for crimes committed by the Nazis 70 years ago. I was proud to accept the honor as a sign of recognition by Germany that the Nuremberg trials were fair and a contribution to world peace and human rights.

From Berlin I flew to Kampala, Uganda. to attend a two-week conference to review the Statute of the International Criminal Court. The United States had always been strongly opposed to including the crime of aggression within the jurisdiction of the ICC. They didn't want it listed as a crime at all. They did not succeed ,at least not completely. In 1998, the Rome Statute listed aggression as an international crime but did not give the court authority to try aggressors until certain onerous conditions were met;, including a new definition and added guarantees that Security Council rights would be respected. Despite concessions, the US voted against acceptance of the Rome Treaty when it was adopted overwhelmingly by 120 in favor with only 7 against, including the US and several that we had denounced as "Rogue States.".

As planned, the issue of aggression that had been deferred in Rome 1998 came up again in Kampala in 2010. It was sadly ironic that Germany, in awarding me their Iron Cross was, in effect, saying that the Nuremberg trials were right!" And what did the Americans say in Kampala? "Nuremberg? Forget it. That was then. Now is now. We don't want aggression in. We want it out." Now that scares a lot of people in the world because we are a very powerful nation. When the United States says "No" those who are recipients of economic and military aid from the United States, are not inclined to say "Yes". The issue of aggression was postponed again, this time to 2017 at the earliest. As matters now stand, the ICC has no authority to try anyone for the supreme crime.

Why is US taking a position which to many may seem hypocritical, arrogant and frightening.? Harold Koh, the State Department Legal Counsel is a very fine fellow and a good lawyer. He served as spokesman for the U.S. delegation of about 15 people. I had already written to the Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen. I noted that I heard a speech of his saying that he would rather deter a war than fight one. I agreed but pointed out that you can't deter a war at the same time that you tell the criminals that if they commit aggression there is no court competent to try them. A month passed before I received a reply. The Chairman praised me for my services to my country but noted that there were legal problems involved. He passed the buck to the State Department Legal Advisor.

The legal objections voiced by he United States are not persuasive. The ICC Statute says specifically that no one can be tried for aggression if his country has not ratified the Statute. Two-thirds of the US Senate has not agreed to reify the ICC Statute. If any nation is able and willing to try its own national for any crime listed in the ICC Statute, the ICC must give priority jurisdiction to that state. The ICC must also stop if the Security Council puts a hold on the proceedings. If the US is really worried about prejudiced ICC judges or unclear formulations all that is necessary is for Congress to add a sentence to our Federal Criminal Code, which says, "Any crime listed in the Statute of the International Criminal Court is punishable in the courts of the United States." US courts would have primary jurisdiction and the ICC would be cut out. Any competent lawyer can find fault and quibble about the language of any law. What is the US really worried about?

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I've just about giving up on trying to persuade diplomats. I've given them a lot of pep talks. And they say, "Great! Great speech." I did it again at a Gala dinner before the opening at Kampala. I reminded them that over 50 million people had died in World War Two which prompted the world to create the UN and the Nuremberg Principles for a more humane rule of law. I asked by what right do we now throw that way and by what right do we betray the hopes of the young people that they won't have to go through the same thing?" Former Secretary-General Kofi Annan was there as well as the current S.G. Ban Ki Moon and many ambassadors. Many came up and slapped me n the back for a great speech. In the end, they followed the lead of the United States. Like the mice in Aesop's fables, mo one was ready to bell the cat. And so once more they postponed any further consideration of the crime of aggression until 2017 – at the earliest. Once again Power has triumphed over Reason.

So there we are. We have a difficult world, and really it's up to the young people to do something about it. Do what your heart tells you is the right thing - stop glorifying war. Do it as best you can. We are spending $2 billion every day on the military. We have a stronger military than every nation in the world combined. What for? No one wants the US to be the self-appointed policeman of he world. The country is on the verge of bankruptcy. We are denying people the elements of health and education by wasting our money on weapons of mass destruction that we cannot use. If you cannot reach and persuade politicians to reverse this disastrous policy, you may have to take to the streets. What else can we do?

America is a great democracy, and in every democracy it's normal, and it should be that way, that people have differences of opinion. But a democracy can only work if its people are being told the truth. You cannot run a country as Hitler did, feeding the public a pack of lies to frighten them that they are being threatened so it's justified to kill people you don't even know. You cannot do that. It's not logical, it's not decent, it's not moral and it's not helpful. When an unmanned bomber from a secret American airfield fires rockets into a little Pakistan or Afghan village and thereby kills or maims unknown numbers of innocent people, what is the effect of that?

Every victim will hate Americans forever and will be willing to die killing as many Americans as possible. Where there is no court of justice wild vengeance is the alternative.

I'm a law-man. I believe in the rule of law. I see that we are provoking what we condemn as dangerous terrorism. The country is terrified. The freedom from fear that President Roosevelt talked about doesn't exist in America today, Armies of airport guards check the shoes of old ladies to see if they've got a bomb hidden there. What have we come to? It's not my world any more. My future is behind me. But, for your sake, and for those who have grand-children, make up your mind. Speak up when you can. Talk to your Congressman. Talk to your friends. Talk to your enemies. It's up to the lawyers to lay down the rules and create the courts. We're doing that, slowly and with difficulty. We need help from the public. You are the public.