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$Title{Liberation of the Nazi Concentration Camps 1945, The
Chapter VIII: The War Crimes Tribunals - Part I}
$Subtitle{}
$Author{Various}
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$Subject{war
crimes
law
hitler's
military
criminals
international
german
nuremberg
countries}
$Date{1987}
$Log{}
Title:       Liberation of the Nazi Concentration Camps 1945, The
Author:      Various
Date:        1987

Chapter VIII: The War Crimes Tribunals - Part I

Moderator; Bernard Fischman, Esq. (USA):  Attorney, Shea & Gould.

Dr. Czeslaw Pilichowski (Poland):  Professor of political science; Director,
Main Commission for the Investigation of Nazi Crimes in Poland.

Prof.  G.I.A.D. Draper (UK):  International lawyer; participated in trials of
German war criminals before British military tribunals.

Col. (Ret.) Nikolai Mikhailovich Kotlyar (USSR):  Participated in prosecution
of Nazi war criminals; author, Under the Name of Law.

Delphin Debenest (France):  Member of French resistance; survivor of
Buchenwald; adjunct prosecutor, Nuremberg trials.

Gideon Hausner (Israel):  Jurist and statesman; prosecuted Nazi war criminal
Adolf Eichmann.

Adrian Fisher, Esq. (USA):  Former Dean of Georgetown University Law School;
participated in prosecution of Nazi war criminals.

Institutional identifications are those at the time of the Conference.

Dr. Czeslaw Pilichowski

     I am deeply moved that I have the opportunity to speak to you at an
international conference dedicated to the problems of liberation from Hitler's
concentration camps and the consequences stemming from it.  The subject of my
presentation today is the problem of persecuting and punishing war crimes.

     Poland suffered heavy losses - biological, material, and cultural.  In
September of 1939, it was the first country to offer resistance to Hitler's
aggression.  It lost over six million of its citizens, including Polish Jews.
At the beginning, I would like to stress that this tragedy and these murders
of Polish Jews are an integral part of the history of our country and of our
peoples.  Starting in December of 1939, Poland presented the world the problem
of Hitler's crimes and terror which were spread by Hitler's henchmen on Polish
soil.

     After many discussions, a charter for an International Military Tribunal
in Nuremberg was finally approved in 1945.  The principles of Nuremberg, the
principles of international law, which were formulated concerning genocide by
Hitler, unfortunately are not recognized by all countries at this time,
particularly by the Federal Republic of Germany where Hitler's crimes of
genocide are still treated as common crimes, as simple crimes.  This has
resulted, on a global scale, in the punishment of only 50,000 of Hitler's
criminals by the entire anti-Hitler coalition tribunals, Polish courts, and
courts of countries occupied by the Third Reich.

     [Unfortunately, the tape recording of the proceedings is garbled at this
point.  Among other things, Dr. Pilichowski expressed his concern that two of
the German officials who participated in the Wannsee Conference were living in
freedom in the Federal Republic of Germany in 1980.  See Gideon Hausner's
presentation below.]

     I would like to say that as far as Poland is concerned, we represent the
position that Hitler's crimes can never be subject to limits; any statute of
limitations cannot apply from the point of view of Poland.  With the support
of Israel and the support of many other countries, on November 26, 1968, we
confirmed a convention.  Unfortunately, this convention was signed by only 21
countries.  Fifty countries voted for this convention out of the more than 100
members of the UN.  Today in international law we are dealing with the fact
that only 21 countries have signed it.

     What does it mean?  It means that the main condition has not been
satisfied which emanates from Hitler's crimes, that is, genocide and all the
consequences stemming from it.  In other words, it is our duty to undertake
such actions - to develop human rights, general morality, and the respect of
law in international relations.  Therefore, Poland has always demanded, since
December of 1949, a just trial of Hitler's criminals and their war crimes
against humanity.

     Finally, I would like to draw your attention to this problem: It would
seem at first that Poland pursues a certain vengeance against the Germans. I
would like to assure you, ladies and gentlemen, that this feeling of revenge
against the German people is very foreign to us Poles.  We put the problem
this way: The problem of Hitler's crimes the problem of pursuing and punishing
the criminals - is not only a problem of truth; it is also a political and a
moral problem.  I would like to state very clearly that we in Poland will
never forget Hitler's crimes and we will never stop pursuing the perpetrators
of these crimes.

     I would like to say that here we deal in accordance with international
law, with the norms of the Nuremberg trials, and that is what we will do as
long as anywhere in the world one of Hitler's criminals is still free.  We
have prepared a report about the state of pursuing and studying these crimes
which we have submitted to the United Nations organization.  Here I have the
pleasure of presenting it to the chairman of today's meeting, and I hope that
all countries will support us in that we feel that we have to do it from the
legal point of view, from the political point of view, and from the moral
point of view.  We owe that to the victims of Hitler, be it six million or
three million.  It is difficult to imagine.  What is three million?  What is
six million?  What is 18 million?  Let us not delude ourselves that our
imagination should fail because then we will not be able to deal with the real
problem of showing Hitler's crimes in their whole dimension and of dealing in
international law, which we wanted to do at Nuremberg, to punish Hitler's
criminals wherever they may be.

G.I.A.D. Draper

     The whole question of the trial of war criminals is voluminous,
difficult, highly technical, and in stark contrast to the overt brutality and
horror of the crimes with which it is concerned.

     When a government decides that it will take upon itself the
responsibility for conducting war crimes trials within the competence of its
jurisdictions, believe me, ladies and gentlemen, it takes upon itself a
formidable legal, logistical, political, and indeed a moral task.

     I think few governments in 1945, at the close of the war under the cover
of which the grossest crimes had been committed, these governments had little
idea of what this task entailed.  Speaking, if I may be so bold, on behalf of
the government of the United Kingdom, it was a novel experience in which all
persons concerned, from ministers down to humble war crimes prosecutors such
as myself, were singularly unversed, untutored, and, if I may say so, naive.
Of course, now, standing before you today, I speak in the light of hindsight.
Had we but known much that we know now, perhaps many of our mistakes would
have been avoided.

     The first thing with which we were confronted was the sheer volume of
criminality, the overwhelming tidal wave of evidence that flowed into our
offices, almost inundating us.  One felt like a man fighting to keep his head
above water in a strong running sea, and that sea was evidence upon evidence
upon evidence of the grossest criminality which our minds had yet experienced.
Even staring at the documents, looking at the photographs, and perusing
captured German documents, of which we were not in short supply, the sheer
horror of the thing weighed upon us day and - in my case, I can tell you -
night.

     The only thing to do was to try and keep calm.  It was a form of
therapeutic, stabilizing, and leveling exercise to endeavor to concentrate
upon what I might call the "technicalities of the exercise."  When you are
dealing with the prosecution of war crimes, you are moving in three main areas
of law.  And I do not wish to give you a law lecture, because otherwise you
will be shaking your watches to see if they are going.

     You are first concerned with the jurisdiction.  By that we mean the
competence of the tribunals before which you, a prosecutor, are going to
appear, the legal competence of handling a case of the accused who is being
brought to trial on that occasion.  Under the system of the prosecution of war
criminals, the provision of adequate defense facilities is part of the
necessary process of doing justice, and that was what we were trying to do.
Our court of law does not apply justice; it applies something more difficult
justice according to law.  That was the novel part of the exercise in the area
of war criminality.

     It is true, we had some isolated precedents of war crimes trials.  One of
the most notorious is in the 15th century in central Europe, but for the types
of crimes that we were dealing with and the type of jurisdiction and the type
of problem with getting the accused before the court and finding the evidence
to link him to the crimes with which he was charged, I can assure you it was a
task that would break the backs of most lawyers.

     The British work on a doctrine of maximum effort and economy of
personnel.  There were not many of us.  At the peak of our war crimes
prosecutions in western Europe - I speak not of the Far East, which was a
separate exercise - we had not more than 12 prosecutors, of which two were
very young lawyers, almost under instruction.

     We had teams of investigators, men who had performed many diverse roles
in the army and were used to what is called "getting around on their own."
Then we had to have technicians - people such as documentary research
analysts, people who knew German and were knowledgeable about the German
military, SS, SD, and Gestapo etc. organizations.  You have to have people who
know about orders of battle.  If you are going to prosecute a German field
marshal for campaigns in eastern Europe, you have to have a great deal of what
I might call military expertise at your elbow.

     The prosecutor goes to a podium with captured documents on one side,
research analysts on the other, technicians sitting around him.  It is really
almost like being equipped to fight a war.  We had none of these things; it
all had to be gathered together slowly and bit by bit.  The evidence came in
faster than we had facilities to deal with it.

     It is the normal practice of a war criminal to try to get into a country
where the evidence against him does not exist.  The war criminals could learn
very early on that there were multiple different jurisdictions in different
countries, and by going from one country to another, he might elude not only
capture, but the technical process of bringing him to justice.

     The getting of an accused from one state to another caused endless
troubles, There was no international machinery dealing with extradition or the
handing over of war criminals.  There was no court for extradition.  It was
made by desk decision.  We not only had to go into court and prosecute cases,
we had to make desk decisions on countless cases of whether Accused "X" was to
be handed over to State "Y" and whether the evidence presented by State "Y"
was adequate to make such a delivery.  None of these things had been thought
of at the time the prosecutions were first entertained by our Cabinet.

     Let me tell you one thing.  The ordinary criminal jurisdiction of the
United Kingdom was never, never invoked at any time for the prosecution of one
single German war criminal.  Our domestic, ordinary penal courts were never
invoked; it was all done in the British Zone of occupied Germany under what we
would call a Royal Warrant which is a decree of the executive arm of
government.  Military tribunals were set up within the organization of the
military, and the nearest analogy to these courts would be the type of
military court that tries a prisoner of war who commits a crime while a
prisoner of war.

     There was also the parallel jurisdiction, less invoked, of the Allied
Control Council, British Element.  This applied quite a different law than
that which we were applying.

     The military courts before which I prosecuted applied the traditional,
classical law of war; a war crime was a violation of the existing law of war.
It followed that the British military had no jurisdiction whatsoever over
crimes committed before the war.  Crimes against humanity and crimes against
peace were two of the three main war crimes tried before the Nuremberg
International Military Tribunal that were not within the competence of the
British military courts.

     Moreover, owing to our difficulties of our own home law and the
relationship of international law to domestic law, these military tribunals
had to bear the whole load of what I might call the "war crimes exercise in
occupied Germany."  This was at a time - 1945 and 1946 - when the lawyers who
were already in the armed forces were flowing back into civilian life where
they belonged, so that the numbers of British lawyers left in the armed forces
to handle this extensive commitment was dwindling every day.

     In the very early days, such as for the Belsen trial which was the second
trial we conducted, the defense lawyers were British military officers serving
in the ordinary course of their military duties who happened to be qualified
lawyers in peacetime.  These men, normally a little older, very swiftly left
the armed forces, and then we had recourse to the use of German professional
advocates, ordinary German practitioners. The system of denazification
eliminated a very large number of the German bar, and those German lawyers who
were cleared for appearing on behalf of the accused had, by the definition of
the Nazi state, normally been out of practice for the whole period of the war.
They were singularly out of touch, out of date with recent developments.
Therefore, one had this perennial criticism coming in that the defense of
these war criminals had burdens which were not on the backs of the
prosecution.

     We have a great saying in my country, "It is not only important that
justice be done, but it is equally important that justice be seen openly and
manifestly to be done."  Equality of competence of the defense counsel is part
of that exercise.

     There was also the next question of what law was to be applied.  Before
the military tribunals we used the ordinary, customary, and conventional law
of war, which forms part of what was generally known as international law.
The jurisdiction we gave ourselves had one very sharp provision in it no plea
or attack may be made by the defense upon the jurisdiction.  That is a very
tough provision.  I know of one case only where such an attack was launched,
and it was launched for the defense of Field Marshal von Manstein who was
tried very late on by the British authorities, as late as 1949.

     I would like to pay a tribute in passing, in reference to that event, to
the Polish government of the day for assisting us in providing a great deal of
evidence about war crimes that had taken place in 1939 and 1940 in Poland.

     Detachment was, I am convinced, a very important quality to retain as a
prosecutor at such war crimes trials.  There was a body of law, of long
history, to be applied.  There was a court by which it was to be brought to
bear, impartially and justly, and there were rules that governed the evidence
and the procedures that had to be followed.  Any attempt to ignore such law
had to be firmly rejected, unless such courts were to become a charade of
justice and an insult to the memory of the victims of the accused.  That more
could have been done by way of such trials, is true. Within the resources and
time provided by the government, and the personnel and skills available, such
trials are not a discredit to the history and doing of justice in
circumstances that were as unique as the crimes.  There is something to be
said for the aphorism expressed by the late Mr. Justice Jackson, the architect
of the Nuremberg Four-Power trial: "Better the worst sort of justice than the
best sort of violence."  The proposal to shoot, summarily, a hundred or so
major German war criminals would without doubt have been a crime.  It had to
be rejected if man was to preserve his decency at a time when it was more
needed than at any other time in the sad history of this world.  Let us be
thankful for that and never forget it.

Nikolai M. Kotlyar

     Even if I wanted to, I could not hide the emotion with which I approach
this opportunity to speak to such an illustrious international gathering.  On
June 22 of this year, my people and we war veterans, with great emotion and
pain, celebrated the anniversary of fascist Germany's attack on our country in
the beginning of the Great Patriotic War.

     This war lasted 1,014 days; over 20 million Soviet citizens were killed
and nearly 50 million wounded.  Whole economic regions of my country were
destroyed.  There is hardly a single family that has not suffered in that war
and to this day does not feel this painful loss.  This explains the caution
and the trepidation with which my nation and we war veterans approach the
slightest threat of a new war or any efforts to start a new arms race.

     These two days of this conference, in which participants in the war and
inmates of fascist camps again have shown Hitler's monstrous acts, have been
fruitful and useful.  Indeed, we remember these horrors, the laws with which
we punished them, and the initiators of this aggressive war, not so that our
hearts would bleed again, but so that with the mutual effort of all honest
people of the world, all nations, and all peoples, they will remember what a
policy will inadvertently lead to when people attack other nations and want to
be masters there.  That is what the fascists of Hitler's Germany wanted to do.

     It was a long and painful road.  I started it in 1941, at a place between
the cities of Minsk and Smolensk as a private, and finished it as a colonel
and military prosecutor in Berlin of this very same Fifth Shock Army which
stormed the last fascist stronghold, the Reichskanzlei [Reich Chancellery].  I
was the first military prosecutor of captured Berlin.  I was present at the
Nuremberg trials.  I represented the Soviet Union in Sachsenhausen and was
also the Soviet representative as an observer, as they say, at a very
interesting trial at Dachau.

     As a soldier and a military prosecutor I have seen so much evil at the
Nuremberg trials, which is impossible to contain in the heart of one human
being.  In Nuremberg it was clearly demonstrated that fascist Germany had been
preparing for this war of aggression for a long time.  The plan was to create
a fascist world empire by adding such countries as France, Britain, and
practically all other states in central and southeast Europe and the
territories of the Near and Middle East to the fascist Reich, with the
subsequent occupation of the United States of America.  I have cited these
facts.

     No, gentlemen, no separate monsters of fascism dealt with all the
territories occupied by Hitler's army.  Hitler's fascists introduced a
ruthless policy and executed it with the power of their own forces, but
Hitler's plan of world domination as was shown at the Nuremberg trials saw its
biggest obstacle in the existence of the Soviet Union.  Therefore, after the
liquidation of Poland had to come the liquidation of the Soviet state.

     As can be seen from the Barbarossa Plan, which was demonstrated at
Nuremberg, Germany wanted simply to destroy the Soviet Union.  There was never
such a state, according to them, as the Union of Soviet Socialist Republics on
the political map of their world, and it was the aim to destroy everything, to
depopulate it, to bleed it to death.

     It is with pain and sorrow that I recollect the crimes against my people
who were subjected especially to hard torture and humiliation.  The Soviet
soldier protected the freedom and independence of his country and, with other
nations of the anti-Hitlerite coalition, saved mankind from the threat of
fascist slavery.

     The British Prime Minister at that time, Mr. Winston Churchill, said that
future generations will recognize their tribute to the Red Army just as
irrevocably as we are doing it now.

     Today as we pay our respects to the victims of fascism and of war, when
the international situation is unfortunately much more complicated, we must
remember that not only our laws must punish the evil deeds, but there must be
some laws which once and for all will preclude new aggression and new wars.

     In our constitution, we have a provision against war propaganda.  It
would seem to me that all countries of the world must have such a law and
apply it to those who are warmongers.  We veterans of that war remind you to
show how the road leading to World War II was built.  Sometimes we did not
believe that the war would come, but we see that the same road is being built
right now.  This is why we must not only have some laws, but all the criminals
that fled our country must be returned to us, even though some countries are
against it.

     I would like, in conclusion, to remind you that not so long ago at the UN
General Assembly there was a new proposal to regard as criminals, real
criminals, those who try in any form whatsoever to apply nuclear arms, because
otherwise there will never be another conference, because there will be nobody
there to attend such a conference, or to pray to remember those who have
perished.  Now we have to devote all our efforts to prevent this monstrous
possibility.