The Czechoslovak Policy of War Crimes Punishment After the Second World War in International Context Pavla
MASARYKOVA UNIVERZITA FAKULTA SOCIÁLNÍCH STUDIÍ
Katedra mezinárodních vztahů a evropských studií
Obor Mezinárodní vztahy
Building a New World: The Czechoslovak Policy of War Crimes Punishment after the Second World War in International Context
Bakalářská práce
Pavla Šimková
Vedoucí práce: JUDr. Mgr. Ivo Pospíšil, Ph.D. UČO: 215513 Obor: MV Imatrikulační ročník: 2006 Brno, 2010
Prohlašuji, že jsem bakalářskou práci vypracovala samostatně a při jejím zpracování jsem používala pouze uvedené prameny a sekundární literaturu.
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Acknowledgement
I wish to thank my supervisor Ivo Pospíšil for his valuable advice and enthusiastic support, and also Ľubomír Majerčík for his readiness to help and my friend Martina Klicnarová for proof-reading my thesis and for her constructive criticism.
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We are a generation which was doomed to live through the two most atrocious wars in history; but we are also a generation which, more than any other, has had the opportunity
to take part in building of a new and better humanity... And we, who have in this grand struggle taken the right way politically and morally, can enjoy the sense of satisfaction that
– in spite of all the shortcomings of our time – our lives have been successful.
Edvard Beneš, February 1945
4 Contents
1. Introduction...... 6
2. Czechoslovak Contribution to the Preparation of War Crimes Punishment...... 11
2.1 Development of the Allied War Crimes Policy, the UNWCC, and Czechoslovak
Involvement...... 13
2.2 Czechoslovak War Crimes Policy...... 19
3. The Ideological Basis of Czechoslovak Retribution in International Context...... 27
3.1 Showing that the Nazis Were Bandits: Common Features of the Czechoslovak
and Soviet War Crimes Policy...... 28
3.2 Building a New World: Common Features of the Czechoslovak and American
War Crimes Policy...... 33
4. Conclusion...... 43
Bibliography...... 44
5 1. Introduction
True to our feelings, there is only one punishment right for all those Germans, whether they perpetrated the crimes themselves or hailed them – death. We know for sure that our nation is part of the civilised world. And its answer to the question: What punishment – is definite – death. [...] They will be punished. For blood – blood.1
These sentences were read out on BBC‟s Czechoslovak Service on 1st January 1942, on the occasion of the conference held in London by the nine governments of the occupied European countries, which two weeks later resulted in the signing of a declaration in which the governments manifested their determination to punish the crimes now committed by the Germans against their civilian populations in occupied Europe.2 The declaration was seen as an extremely welcome act in the above-mentioned broadcast, and the editor remarked that the anxieties as to whether the post-war retribution will be carried out properly and dutifully, have now been dispelled by the declaration.3 Such statements, perhaps not quite so harsh, but no less determined, were no rarity among the Czechoslovak wartime declarations concerning future retribution against the Nazi occupiers and those who aided them. In his radio addresses which were broadcast into the occupied Czechoslovakia, President Dr. Edvard Beneš repeatedly stated that “the retaliation, which surely will come, will be terrible”4. Such statements, along with the actual retribution proceedings, which undoubtedly were in many respects rather ill-conceived and were carried out with greater than necessary severity, and in view of the post-war political development of Czechoslovakia which tended more and more to the political left, in international politics oriented the state increasingly towards the Soviet Union, and finally plunged the country only three years after the end of the war into forty years of Communist rule, can easily cause commentators and historians to dismiss the Czechoslovak retributive action as „inherently flawed‟5 and motivated more by a desire for vengeance than for justice. On the surface, Czechoslovak
1 BBC Military Broadcast: Czechoslovak Broadcast, 1st January 1942, edited by Jiří Mucha. Národní archiv Praha, fond Ministerstvo vnitra Londýn, karton 211. 2 The declaration was officially signed on the 13th January 1942 in the St. James‟s Palace in London and came thenceforth to be known as the St. James Declaration. 3 BBC Military Broadcast: Czechoslovak Broadcast, 1st January 1942. NA Praha, f. MV-L, k. 211. 4 Beneš , Dr. Edvard. Šest let exilu a druhé světové války. Řeči, projevy a dokumenty z r. 1938 – 1945. Praha: Orbis, 1946, p. 133. 5 Frommer, Benjamin. National Cleansing: Retribution against Nazi Collaborators in Postwar Czechoslovakia. Cambridge (i.a.): Cambridge University Press, 2005, p. 9.
6 retribution could therefore seem to many as a rather straightforward case of early Soviet influence in a country that already was directing its foreign policy toward an ever greater cooperation with the Russians and which was to become a Soviet satellite only a few years later. This image would indeed fit very well into the familiar black-and-white picture of the two basic – and opposite – approaches to the post-war punishment of the war criminals, in which a clear line is drawn between the Western Allies and the Soviets: in this picture, the attitude of the Western Allies is represented by the famous words from the opening speech of Robert H. Jackson, the U.S. Chief Prosecutor on the Nuremberg Tribunal: “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason”6. Although the words themselves include all „four great nations‟, they were nevertheless uttered by the American Chief Prosecutor, and Nuremberg was (to a major extent rightly) regarded as a largely American undertaking with the Soviet presence on it perceived as its biggest embarrassment and flaw. Under these circumstances, Jackson‟s speech and this very part of it in particular came to be regarded as the ultimate expression of the intentions and motivations with which the Western Allies came to the Trial. The Soviets, on the other hand, although they also participated in the Trial, were seen as motivated almost exclusively by seeking vengeance for the destruction and suffering inflicted upon their country and people during the German invasion. Put it simply, while the Western Allies stayed the hand of vengeance, the Soviets did not; their hand had to be stayed by the others, and if they had had their way, they would have had the Nazi leaders shot out of hand. Such at least is the most common image of the great powers‟ differing approaches to post-war justice. It presents us with an unambiguous story of justice versus vengeance in which Czechoslovakia, although its retributive action was conceived in London, took sides ideologically with its big brother-to-be. However, plumbing the evolution of the idea of a post-war international trial of Nazi war criminals and in particular the history of the Czechoslovak involvement in the process of conceiving the punishment of war criminals and the ideological motivation which fuelled this effort reveals a far more complicated story, marked by complexity, contradictions and stubborn resistance to be painted either in black or in white.
6 Justice Jackson‟s Opening Statement before the International Military Tribunal. Jackson Center Research Archive. http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h- jackson/opening-statement-before-the-international-military-tribunal/. Accessed on 28th April, 2010.
7 The basic approach of this thesis will be to set the development of the idea of Czechoslovak retribution into the wider context of the international developments of the issue of war crimes punishment, that eventually led up to the Nuremberg Trial. I believe that this contextualization will show how closely interwoven the general – international and particular – national Czechoslovak levels of dealing with this problem in fact were, a connection that has frequently been underestimated in the various accounts of Czechoslovak retribution. Indeed, a closer look reveals some striking similarity of motivations for the domestic and inter-Allied punishment of the Nazi war criminals. The hypothesis of this thesis is basically two-fold: firstly, this thesis will argue that without the wartime effort of the occupied countries, the idea of punishment of the Nazi war criminals by judicial means may not have been put through at all, and that in this process, the Czechoslovak government-in-exile played a crucial role, promoting principles almost identical with those which were later adopted in the Nuremberg Charter; and secondly, this thesis will attempt to prove that despite some elements of the underlying motivation of the Czechoslovak retribution that bore resemblance to the Soviet approach to war crimes punishment, the ideological basis of Czechoslovak retribution was closer to the policy pursued by the United States and that the aspects Czechoslovak retribution had in common with the Americans were of greater importance for the Czechoslovak policymakers. On the level of the actual planning of the post-war punishment, I will show the extremely close and complex relationship there existed between the Czechoslovak and the United Nations‟ preparations for the punishment of war criminals. I will attempt to prove that in many respects, it were the occupied European countries‟ plans for retribution and their unwavering effort to win for them the support of the great powers, that eventually inspired the international action; that in the process of putting these plans through and in the formulation of principles according to which the war criminals were to be dealt with, Czechoslovakia, especially in the person of its representative in the United Nations War Crimes Commission, Dr. Bohuslav Ečer, played a much more significant role than usually estimated; and that the aforementioned correspondence of the war crimes punishment principles promoted by Czechoslovakia and the principles of the Nuremberg Charter hints at a correspondence of motivations of the Czechoslovak exile government and the makers of the Nuremberg Trial. The interconnection of the international and Czechoslovak plans for the punishment of war criminals went indeed deeper than into the formulation of principles and legal
8 measures. These measures and principles were but an expression of the underlying motivations in which, although they were to some extent founded in each country‟s wartime experience and its own idea of the future world order, still a common ideological basis can be traced. Although on the one hand the Czechoslovak approach to retribution bore many similarities to the Soviet notions, I will argue that this stemmed more from Czechoslovakia‟s own wartime experience than from any Soviet influence. On the other hand, as I will attempt to prove, the Czechoslovak conception was driven by a motivation very similar to that which eventually led the Allies, especially the Americans, to establishing the Nuremberg Tribunal. As this thesis will attempt to prove, the common features of the Czechoslovak retribution policy with the U.S. approach were more significant than those similar to the Soviet policies. This basic motivation shared by the United States and Czechoslovakia could be with only a little exaggeration termed „building a new world‟. The thesis is organized into two large chapters, each dealing with one constituting part of the hypothesis. The first great chapter deals with the first part of the hypothesis and is divided into two sub-chapters: the first one focuses on the Czechoslovak and other exiled governments‟ efforts concerning the Allied policy on war crimes punishment, on the subsequent establishment of the United Nations War Crimes Commission and on the Czechoslovak involvement in the Commission; the second sub-chapter covers the actual war crimes policies which Czechoslovakia pursued in the Commission and contrasts them with the Western Allies‟ attitudes. In the second large chapter, the focus is on the second part of the hypothesis: the ideological basis of Czechoslovak retribution. This chapter, too, is divided into two sub-chapters: in the first one, the similarities of the Czechoslovak retribution policy to the Soviet attitudes are examined, while the second sub-chapter is devoted to the interrelation of the Czechoslovak and American approach. Researching how a new world was to be built is one of the most attractive topics I can imagine. The attractiveness of this particular topic lies further in the fact that the issue has not yet been comprehensively covered. There is, of course, an abundance of various legal, historical, and political accounts of the Nuremberg Tribunal and its preparation, and there has recently also been a number of studies dealing with Czechoslovak retribution. However, these studies have largely focused either on the legal aspects of the issue or have dealt primarily with the actual retribution trials, devoting little attention and space to their preparation and the ideas underlying them. Dealing with the international context of the punishment of war criminals has been even rarer.
9 Due to the fact that almost no works are available which would deal precisely with the issue of the international context of Czechoslovak retribution, this thesis draws to a large degree on archival sources, particularly on documents of the Czechoslovak wartime government-in-exile in London. It also makes use of the memoirs and speeches of some notable members and officials of the government, such as President Dr. Edvard Beneš, the post-war Minister of Justice Dr. Prokop Drtina, and, perhaps most importantly, the eminent law expert and Czechoslovak representative to the United Nations War Crimes Commission, Dr. Bohuslav Ečer. For information about the Nuremberg Tribunal and the development of the Nuremberg Charter, the thesis uses several publications dealing with various aspects of the Tribunal, such as Perspectives on the Nuremberg Trial, a collection of notable articles and essays on the issue edited by Guénaël Mettraux, and international criminal law in general, for instance The Oxford Companion to International Criminal Justice edited by Antonio Cassese, as well as a number of scholarly articles published in various law journals. For general information about the Czechoslovak retribution, a number of recently-published Czech studies, dealing with both the preparation and general character of the retributive action and with its actual implementation in various regions of Czechoslovakia, will be used. The most important sources, however, remain the archival materials and other primary sources. This thesis will not deal with the actual trials of war criminals, nor will it delve into details of the legal measures applied in the process of war crimes punishment, neither on the international nor on the national level. Although the actual implementation of the retributive measures is obviously closely interconnected with the development of the war crimes policy, these issues have been already sufficiently covered elsewhere, even as regards the Czechoslovak tribunals, let alone the countless works dealing with all imaginable aspects of the Nuremberg Trial. Perhaps even more importantly, the focus of the thesis lies elsewhere than in discussing the legal finesses of the treatment of war criminals; and the clear focus of the thesis would only be marred by trying to deal with too many issues simultaneously. In this place, I also find it useful to make clear the meaning of some key terms I will be using throughout the thesis. By „Nuremberg Trial‟ or „Nuremberg Tribunal‟ I refer to the International Military Tribunal (IMT) which was held from November 1945 to October 1946 and at which the major Nazi war criminals were tried, and not to the subsequent Nuremberg Military Tribunals (NMT) held from 1946 to 1949, since only the IMT can be regarded as an international tribunal; the subsequent trials were a wholly American undertaking. In the case of Czechoslovak retribution, I refer in this
10 thesis only to the one conceived in London and carried out between 1945 and 1947, not to that conducted by the Czechoslovak Communists in 1948, once they came to power. I believe that the most interesting question about any action is the question about the motives that led to it. I also believe that by setting things into a broader context one wins a better understanding of them. These are the basic assumptions underlying my thesis. I think that the question of the motives behind Czechoslovak retribution has not yet been dealt with in a satisfying way and that the international contextualization of it has been done only on the legal level, and not on the ideological one. I believe at the same time that trying to look closer on the motives of retribution and setting it into the broader context can bring some new and inspiring insights about the issue itself and about political history of Czechoslovakia in general. To this end I would wish to contribute with my thesis.
2. Czechoslovak Contribution to the Preparation of War Crimes Punishment
Dr. Bohuslav Ečer, the Czechoslovak representative in the United Nations War Crimes Commission (UNWCC), was apparently no proponent of false modesty. In his popular account of the preparation and conduct of the Nuremberg Trial he, among other things, assessed the Czechoslovak participation in the Commission and claimed proudly:
With our reports and proposals in London, we have helped to lay the ideological and legal, but also moral and political foundation of the Charter of the Nuremberg Trial, the indictment, and the judgment. In the Charter, as well as in the indictment, Czechoslovak ideas, formulations and proposals are echoed repeatedly. They have been acknowledged and implemented not because they were supported by great political power, but rather because they were backed by great moral power and the legal beliefs of the whole civilised mankind. We are proud that we, the representatives of a small country, were granted the opportunity to express the moral and legal belief of all the United Nations.7
It is somewhat tempting to believe him and conclude happily that the Western Allies were so imbued with desire for justice and so attentive to the voice of the common conscience of mankind (whatever that might be) that they readily adhered to the ideas and propositions expressed by the government of an occupied country with little political
7 Ečer, Bohuslav. Norimberský soud. Praha: Orbis, 1946, p. 120.
11 power, which they seven years earlier have dismissed as a “far-away country” and “people of whom we know nothing”8, not worthy of their military assistance or even concern, just because these propositions were backed by the collective conscience of the world public. It would form an exquisite triumphalist narrative in which a group of determined men, representatives of a small-but-brave nation, which has been ill-treated by its allies and oppressed by a dreadful enemy, have struggled hard and, against all the odds, finally gained acknowledgement, because their cause was just. Much as one would wish political bargaining functioned that way, such was not the story of the Czechoslovak exile government trying to influence the international plans for the punishment of war criminals and simultaneously drafting its own retributive action. At least not exactly: for a closer look at the Czechoslovak war crimes policy and a comparison with the policy of the great powers allows us to arrive at two perhaps surprising assertions. Firstly, it was the Czechoslovak government, along with governments of the other occupied countries, who pressed hard for decisive measures to be taken on the subject of war criminals, instead of vague declarations which were so much in fashion at the time; and also, in the initial stages of the process, the Czechoslovak government was a major driving force behind the preparations for handling the issue and setting up the UNWCC; and secondly, although it is almost certainly an overstatement to say that the principles which found their way into the Nuremberg Charter did so because of the Czechoslovak influence, it is nevertheless true that the Czechoslovak policy regarding punishment of war criminals, which Dr. Ečer struggled to put through in the UNWCC, encompassed measures that were stunningly similar and in many cases virtually identical to those which the great powers incorporated into the Nuremberg Charter, and that Czechoslovakia started to promote them considerably earlier than the Western Allies began to even consider a trial. In this part of the thesis, Czechoslovak involvement in the evolution of the Allied war crimes policy will be discussed; and an attempt will be made to prove that Czechoslovakia together with the other occupied countries‟ exile governments exercised a major influence as regards the fact that the war crimes issue came to be handled at all; also the issue of Czechoslovakia arriving at practically the same legal measures that were later included in the Nuremberg Charter, which may point toward Czechoslovakia having a point of view similar to that which later prevailed at Nuremberg, will be dealt with here.
8 British Prime Minister Neville Chamberlain thus referred infamously to Czechoslovakia in his radio address on 27th September, 1938, on the eve of the Munich Agreement.
12 2.1 Development of the Allied War Crimes Policy, the UNWCC, and Czechoslovak Involvement
During the first years of the war, the Western Allies, the United Kingdom in particular, had other things to worry about than the eventual punishment of German war criminals. Great Britain was locked in a desperate combat against the Luftwaffe during the Battle of Britain, and up to 1942 it was not at all clear whether the Allies will be in position to punish anyone at the end of the war. At any rate, future treatment of war criminals was definitely not given a first-rank priority in the Western Allies‟ war plans. The situation was, understandably, quite different with the exile governments of the occupied European countries which set up their headquarters in London: their countries were exploited, their nations were suffering – and they demanded action. In particular the Polish and Czechoslovak governments assumed the lead in pressing for a clearly-defined policy on the war crimes punishment.9 President Beneš promised retaliation and certain punishment for the Nazi occupants and those who would collaborate with them in almost every radio address broadcast to the occupied country10; but there was a strong feeling in the exile government that they should present something more to their nation than general declarations, promising just retribution but getting nowhere near implementing it. As the occupation terror grew and news of continuous atrocities committed by the Nazis back home reached the exile governments, the representatives of the occupied countries tried hard to draw the attention of the Western Allies to the problem, and demanded a coordinated action of the Allies.11 However, all the Western Allies were willing to offer at the time were more or less vague declarations, stating for instance that “frightfulness [...] only sows the seeds of hatred which will one day bring fearful retribution”12. General statements of this kind were not sparse at the time, but the exile governments‟ call for action remained unanswered. Under these circumstances, the exile governments realised that unless they are willing to contend themselves with occasional statements from the Western leaders prophesizing fearful retribution, but mentioning no means of achieving it, they must act on their own accord. The result of this resolution was
9 Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton and Oxford: Princeton University Press, 2000, p. 184. 10 see Beneš, Šest let exilu a druhé světové války. 11 Borák, Mečislav. Spravedlnost podle dekretu: retribuční soudnictví v ČSR a Mimořádný lidový soud v Ostravě (1945 – 1948). Ostrava: Tilia, 1998, p. 22. 12 President Roosevelt‟s statement on 25th October 1941 in respect to the acts of barbarity committed by the Germans; in Glueck, “The Nuernberg Trial and Aggressive War”, p. 90.
13 a conference of the European governments-in-exile which took place in January 1942 in St. James‟s Palace in London. On 13th January 1942, a document was adopted there, signed by the governments-in-exile of Belgium, Czechoslovakia, Greece, Luxembourg, the Netherlands, Norway, Poland, Yugoslavia and the Free French National Committee, which entered history as the St. James Declaration. It was the first document of its kind and declared the signatories‟ solemn intention to
place amongst their principal war aims the punishment, through the channel of organised justice, of those guilty and responsible for those crimes [acts of violence perpetrated against their civilian populations], whether they have ordered them, perpetrated them or in any way participated in them.13
The Declaration constituted the first important step toward a concrete plan of dealing with war criminals after the war: although the Declaration was not strictly binding, the signatories regarded it nevertheless mostly as such and kept recalling it when preparing their own domestic retributive actions; they also made abundant references to it in their radio broadcasts to their occupied countries, thus creating the impression among the public that something was being done. Moreover, despite the fact that the great powers did not join the Declaration, but merely sent observers to the conference, they could not ignore its existence and it put some pressure on them to act accordingly to their statements which were mentioned in the Declaration.14 Finally, the Declaration represented the serious intention of the governments-in-exile to deal with the war criminals by means of organized justice. The St. James Declaration was by no means the swan song of the exile governments‟ activities in respect to war crimes punishment preparations. They had good reasons for remaining active, too: in the first place, there was the hitherto passivity of the Allies, especially of the British, as regards war crimes punishment. Furthermore, the failure of war crimes prosecution after the First World War was still in good memory15, and the exile governments were anxious to avoid a repetition.
13 St. James Declaration of 13th January 1942; NA Praha, f. MV-L, k. 209. 14 The Declaration mentioned the above-quoted statement of President Roosevelt on 25th October 1941, and the statement of Winston Churchill from the same date in which the Prime Minister declared: “Retribution for these crimes must henceforward take place among the major purposes of the war.” 15 Kuklík, Jan. Mýty a realita takzvaných Benešových dekretů: Dekrety prezidenta republiky 1940 – 1945. Praha: Linde, 2002, p. 196.
14 During the close of 1941 and in the first half of 1942, it came to an escalation of crimes committed against the civilian population in the occupied Czech lands, first after the appointment of Reinhard Heydrich as Reichsprotektor and further after his assassination in May 1942, when it came to a wave of Nazi-organized atrocities, including the wiping-out of the villages of Lidice and Ležáky and a massacre of their male inhabitants. After these events, the pressure of the Czechoslovak government on the British and the Americans for decisive measures to be taken increased considerably: the Czechoslovak representatives were dispatching notes and memoranda to the Allies demanding that the Western Allies join the St. James Declaration and adopt a clear policy toward the punishment of war criminals.16 The great powers responded first – inevitably – with more declarations, but this time stating their intention to prosecute the criminals judicially after the war was over.17 The British government was probably the one most reluctant to conceive plans for judicial punishment of war criminals – this being the demand of the exile governments – but on the other hand also the one most vulnerable to diplomatic pressure, mainly from Czechoslovak quarters: not only did the British share responsibility for the Leipzig fiasco after the First World War18, but also the memory of the part they played in the notorious Munich Agreement, forced upon Czechoslovakia, put them into an unenviable position. In addition to these factors, the efforts of the governments-in-exile also found support among the British political representation itself, perhaps most importantly in the person of the Lord Chancellor Simon, who supported the idea of setting up a commission for war crimes investigation and, after the establishment of the UNWCC, pushed for broadening its terms of reference.19 After continuous pressure of the exile governments on the United States and Great Britain to adopt a deliberate policy of reprisals, and after it became clear that they will not be contended with the Western Allies‟ practice of issuing unbinding statements, in 1943 it
16 Kuklík, Mýty a realita takzvaných Benešových dekretů, p. 197. 17 President Roosevelt announced on 21st August 1942 that “the time will come when [the criminals] shall have to stand in courts of law in the very countries which they are now oppressing and answer for their acts”; Winston Churchill declared on 8th September 1942 that “those who are guilty of the Nazi crimes will have to stand up before tribunals in every land where their atrocities have been committed in order that an indelible warning may be given to future ages and that successive generations of men may say „so perish all who do the like again‟.” A similar declaration was made by the Soviet Foreign Secretary Molotov on 14th October 1942. 18 Kochavi, Arieh J. “Britain and the Establishment of the United Nations War Crimes Commission”. The English Historical Review, Vol. 107, No. 423 (Apr., 1992), p. 323. 19 Kochavi, Arieh J. Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment. Chapel Hill, NC (i.a.): University of North Carolina Press, 1998, p. 103.
15 finally came to the first decisive steps on the part of the great powers in respect to war crimes policy. On 30th October 1943, the United States, Great Britain, and the Soviet Union signed the Moscow Declaration, the first – and, as it turned out, also the last – wartime declaration dealing explicitly with the post-war treatment of war criminals. The Declaration referred to both the national and international level of retribution: in reference to the punishment of those criminals whose crimes were connected with the territory of a certain state, it stated that those who “have been responsible for or have taken a consenting part in the [...] atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries”; in respect to the “German criminals whose offenses have no particular geographical localization”, the Declaration introduced only a rather unclear formulation that they “will be punished by joint decision of the government of the Allies”20, which allowed both for judicial and extra-judicial procedure. The second landmark action taken in 1943 was the setting-up of the United Nations War Crimes Commission on 20th October 1943. The Commission was envisioned by the British as a fact-finding body, concerned solely with collecting evidence and submitting reports to the member governments.21 It needs to be said that the British were motivated to set up the Commission chiefly by desire to prove that the United Kingdom is actually doing something about the matter; the Commission was meant to function as a means of neutralizing calls for action from the exile governments and to create the impression that the issue was being handled.22 But whatever the original intentions, something was actually being done: the Moscow Declaration was issued and the Commission set up; and with reasonable certainty it can be said that these results came about thanks to the unrelenting pressure exercised by the exile governments, among which Czechoslovakia assumed an important position. These developments seem to confirm the hypothesis that the effort of the exile governments of the occupied countries was a major driving force behind the adoption of the Moscow Declaration and the establishment of the UNWCC, and that the exile governments‟ pressure had a decisive impact on the Western Allies as regards war crimes policy. At this point, a note must be devoted also to the policy of war crimes punishment pursued by the USSR. There, the situation was obviously much different from the Western
20 Declaration of the Four Nations on General Security from 30th October 1943; the fourth nation which is here referred to except USA, UK, and USSR is China. 21 Kochavi, Prelude to Nuremberg, p. 92. 22 Kochavi, “Britain and the Establishment of the UNWCC”, p. 346.
16 Allies. The Soviet Union was bearing the brunt of the German atrocities on its own territory and therefore, understandably, the punishment of war criminals was attributed an importance that was quite incomparable with the Western Allies‟ attitude. However, the USSR proceeded in essence single-handedly, establishing its own commission for investigating war crimes, and was never a member of the UNWCC. This was largely due to a disagreement with Great Britain, as the Soviets were opposed to the participation of British colonies in the Commission and agreed to take part only if the Soviet republics engaged in war23 were allowed to participate as well; this, in turn, was unacceptable for the British24 and the Soviet Union never became a member of the Commission, a fact often criticized by the Czechoslovak representatives in the Commission.25 Almost as soon as the UNWCC started functioning, conflicts arose; for while the British and the Americans endeavoured to keep the Commission as low-profile as possible, a mere fact-finding body, in order that its activities do not interfere with their established policies26, the other members were far more ambitious: the Commission was the only international agency dealing with the problem of war crimes punishment and to the exile governments it represented a rare opportunity to have their say in the preparations of Allied war crimes policy – and they were going to make the most of it. They were not interested in limiting their activities to gathering evidence; they wanted to prepare a comprehensive plan for prosecuting war criminals, including the setting up of an international court and defining the categories of war crimes; as the Commission‟s Progress Report of 19th September 1944 has it, the function of the Commission was to be the “investigation of war crimes with a view to the trial of the authors of these crimes and an examination of questions of law, method and policy”27. In attempting to expand the responsibilities of the Commission, the Czechoslovak representative, Dr. Ečer, was especially active. He was well aware of the restrictions the British government was trying to impose on the Commission and in his reports to the Czechoslovak government he frequently criticized the overcautious behaviour of the
23 namely the Ukrainian, Byelorussian, Moldavian, Latvian, Lithuanian, Estonian and the Karelo-Finnish Soviet Republics. 24 Kochavi, “Britain and the Establishment of the UNWCC”, p. 340. 25 This opinion of the Czechoslovak representatives, primarily Dr. Ečer, was expressed in numerous reports to the Czechoslovak government; for instance Report of the Czechoslovak Representative in the UNWCC No. 27 for the period from 18th October to 28th November 1944; NA Praha, f. MV-L, k. 210. 26 Kochavi, Prelude to Nuremberg, p. 92. 27 UNWCC Progress Report, 19th September 1944; NA Praha, f. MV-L, k. 210.
17 British Chairman of the Commission, Sir Cecil Hurst28; but still regarded the Commission as a body where the preparations of the punishment of war criminals should and will be centred – and, as he stated in a letter to the Minister of Justice Dr. Stránský, “our government should do its best to make this come true”29. Dr. Ečer eventually became one of the leading figures in the Commission, initiating debates about many issues that were considered controversial, such as the scope of “war crimes” that were to be punished, and the principles according to which this punishment should be carried out, sometimes clearly exceeding the original terms of reference of the Commission. In his effort he was aided by the American representative Herbert Pell who, being President Roosevelt‟s personal appointment and seeing as he did that the State Department showed no special interest in the war crimes issue, broke with the State Department line and started to act largely on his own initiative.30 He was not the only one to behave more independently than his government would have wished: the Commission witnessed also a „change of heart‟ of Sir Cecil Hurst who, after initial reluctance, ended up demanding broader responsibilities for the Commission which he chaired; this, however, resulted in both the British and the American representative being removed from the Commission by their governments. This suggests that the UNWCC, in which the occupied countries held an overwhelming majority, went in its activism against the contemporary policy of Great Britain and the United States; and that while the great powers‟ position was reluctant at best, it was the exile governments whose policies favoured an active approach to the question of war crimes punishment and who were also largely responsible for the Commission‟s activism. Although some authors describe the UNWCC as an inherently weak body which had been “unceremoniously killed off” when the real negotiations about the Nuremberg Charter started31, and although the U.S. State Department and the British Foreign Office were joined in a common effort to keep the Commission as low-key as possible, the body nevertheless managed to become quite independent in its activities and to discuss many vital points which were not originally meant to land on its agenda. It also undoubtedly exercised a certain amount of influence, were it only that it draw attention to the problem of war crimes punishment; but it has also been suggested by some authors that had it not
28 Report of the Czechoslovak Representative in the UNWCC No. 29 (end of 1944); NA Praha, f. MV-L, k. 210. 29 Letter concept from Dr. Ečer to Dr. Stránský, 14th February, 1944; NA Praha, f. MV-L, k. 210. 30 Kochavi, Arieh J. “Discord within the Roosevelt Administration over a Policy toward War Criminals”. Diplomatic History, Vol. 19, No. 4 (Fall 1995), p. 620. 31 Bass, Stay the Hand of Vengeance, p. 149.
18 been for the discussions in the Commission and its reports and recommendations to the Allied governments, the crimes against peace and crimes against humanity would have never found their way into the Nuremberg Charter.32 Thus it is possible to understand the Commission as a body which, although created largely with the intention of placating the exile governments, has in the end overcome its limitations and contributed significantly to the handling of the war crimes punishment issue. The main credit for its establishment goes to the exile governments, for the Western Allies initially had no desire to deal with the question at all; it is almost certain that had it not been for the vigorous effort of Czechoslovakia, Poland and other exile governments united in the St. James Declaration, the issue of war crimes punishment would never have received such attention in the international arena as it in fact did. The history of the establishment and functioning of the UNWCC supports the thesis that it was the exile governments, among which Czechoslovakia was one of the most active, whose effort brought the Commission into being and who then through this body pushed for adoption of a decisive Allied policy on war crimes punishment. It also seems to prove that were it not for their pressure, the issue would have never received such attention and the Allied war crimes policy might have looked very different.
2.2 Czechoslovak War Crimes Policy
The Western Allies did not have the unwavering determination or the ready reasons of the occupied countries‟ exile governments to deal with the punishment of war criminals in a deliberate way. This, on the whole, is not so surprising, for, as Lord Justice Lawrence, the President of the Nuremberg Trial, put it:
We, in England, I think must remember that though we suffered, we have not suffered as they [the occupied countries] did. [...] We were not invaded. Our people were not deported to work as slaves. Few, if any, of our nationals were shot as hostages and few were, I think, in concentration camps.33
Although Great Britain certainly did not emerge from the war without getting a single scratch, its affliction still was not quite comparable to what the people in the
32 Kochavi, “Discord within the Roosevelt Administration”, p. 638. 33 Lawrence, Geoffrey, Lord Oaksey. “The Nuremberg Trial”; in Mettraux, Perspectives on the Nuremberg Trial, p. 292.
19 German-occupied countries had to endure. Given this situation, Norman Birkett, the alternate British judge at Nuremberg, only commented on a logical consequence when he remarked that “the feeling which was evoked in the occupied countries is something of which we in Britain have really no adequate conception.”34 In the occupied countries there was a general longing during the war – and a general outcry after the war – for retribution, and Czechoslovakia was no exception among the exile governments demanding certain and severe punishment for the Nazis. However, this punishment was from the beginning meant to be carried out through the channels of organized justice – this being the first of the features of Czechoslovak war crimes policy that link it to the Nuremberg Trial. The preparations for future prosecution of war criminals and collaborators started within the Czechoslovak exile government already in February 1942, that is almost immediately after the signing of St. James Declaration35. The real turning point, however, came with the annihilation of Lidice. This outrageous crime added significantly to the Czechoslovak government‟s determination to mete out punishment to those responsible for it. In a landmark move, the Czechoslovak government did not list as responsible only the culprits themselves or their immediate superiors: in a notable statement on 13th June 1942, President Beneš solemnly declared that
for all that has happened in our country in these days we consider Adolf Hitler and all the members of his government, without exception, personally responsible. We hold personally responsible all the exponents of the Nazi Party and of the Reich Government on our territory [...] We shall not cease our demands for justice until the above-mentioned culprits [...] fully receive their well-merited punishment [...]36
The importance of this declaration for understanding the Czechoslovak attitude to war crimes punishment should not be underestimated: in this declaration, the Nazi leaders were for the first time explicitly identified as war criminals with individual responsibility – an approach that influenced both the fellow exile governments‟ and the great powers‟ views of war criminals punishment37; but apart from that the declaration also points to an important fact: that even in the midst of the outrage caused by the Nazi crimes,
34 Birkett, Norman. “International Legal Theories Evolved at Nuremberg”; in Mettraux, Perspectives on the Nuremberg Trial, p. 302. 35 Kuklík, Mýty a realita takzvaných Benešových dekretů, p. 203. 36 Declaration of President Dr. Beneš on June 13th, 1942. UNWCC: Declarations by United Nations Governments and Leaders on the Subject of War Crimes. NA Praha, f. MV-L, k. 210. 37 Kuklík, Mýty a realita takzvaných Benešových dekretů, p. 202.
20 Czechoslovakia did not consider any other alternative of punishment than a judicial proceeding. The terror after Heydrich‟s assassination prompted the government to intensify its work on preparation of the war criminals punishment; the Secretary of Treasury in the exile government, Ladislav Feierabend, wrote in his memoirs that “there was no longer nor more passionate debate in the government than over the draft of the retribution law”38. In the first draft of the retribution law, the personal responsibility of Hitler and his government and the intention to try them before Czechoslovak extraordinary courts, which were to be established after the war, was explicitly mentioned39: considering the reluctant British attitude towards the war criminals punishment in general and the uncertainty as to whether a United Nations criminal court will be set up, it is understandable that the Czechoslovak government wanted to ensure that the Nazi ringleaders would be put on trial. This is another important point which the Czechoslovak war crimes policy had in common with the future Nuremberg proceedings: in Nuremberg, the highest-ranking surviving Nazis were put on trial – and in this case, as mentioned above, there was a direct influence of the Czechoslovak attitude upon the great powers‟ policy. Although it can in some respect prove tricky to compare domestic retribution laws to the international criminal law measures, still a number of corresponding principles can be found in the Czechoslovak retributive action and the Nuremberg law which hints at the interrelation of the Czechoslovak and international war crimes punishment preparations and which indicates that the motivations might have been shared too. One such element which can be found both in Czechoslovak and international measures is the criminalization of the membership in certain organizations, which in the Czechoslovak environment was proposed as early as 1942 by President Beneš40. Although the Czechoslovak list of criminal organizations was somewhat longer41, the idea nevertheless was the same: namely the claim that while in normal society crime is a deviation, in the Nazi system it became the norm and must therefore be treated collectively.42 The Czechoslovak legislation also, similarly to the principles applied at Nuremberg, denied the defence of superior orders.
38 Feierabend, Ladislav. Politické vzpomínky III. Brno: Atlantis, 1996, p. 44. 39 Zákon o potrestání nacistických zločinců mimořádnými lidovými soudy. AKPR Praha, f. LA, k. 17. 40 Záznam názorů E. Beneše na trestání válečných zločinců. In: Jech, Karel, Kaplan, Karel. Dekrety prezidenta republiky 1940 – 1945: dokumenty. Brno: Doplněk, 2002, p. 179. 41 While in Nuremberg the organizations described as criminal in the judgment included the SS, SD, and Gestapo, in Czechoslovakia in addition to these also the SA, the NSDAP, the SdP (Sudetendeutsche Partei) and the Czech fascist organizations Vlajka and Svatoplukovy gardy were regarded as criminal. The Czechoslovak representatives also criticized the acquittal of the Reichskabinett and the German General Staff at Nuremberg. 42 Ečer, Norimberský soud, p. 24.
21 Perhaps more importantly, the Czechoslovak retribution shared the „Nuremberg‟ view of the principle of legality, i.e. nullum crimen sine lege et nulla poena sine lege: while the Nuremberg judgment stated that “it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice” and that it would be unjust if the accused were allowed to go unpunished43, the Czechoslovak post- war Justice Minister Prokop Drtina asserted in his address in the parliament much the same:
[T]his question has been discussed in depth not only by our government in London, but by all the Allied governments [...] If this principle of legality were to become a defence for the Nazi and fascist tyrants, we would be guilty of the gravest legal injustice and political mistake. [...] If we stuck to the principle of legality, the majority of the Nazi crimes would go unpunished under our criminal law. The Nazis have in their abominable imagination thought up new crimes, while dressing them up in legal form. [...] These horrendous crimes required without hesitation, on moral and legal grounds, that the principle of legality be temporarily abandoned.44 . As is apparent from these quotes, the shared opinion about the issue was that not to punish the deeds, although they have up to the point not been specifically declared to be criminal, would be most unjust and therefore contradictory to the basic purpose of law. Thus, there was unity between the Czechoslovak and the international approach to the usage of the principle of legality under those particular circumstances. However, the Czechoslovak government-in-exile was not concerned only with formulating its own domestic retribution; apart from dealing with war criminals back home, the government also had a comprehensive view of how the „arch-criminals‟, that is the Nazi leadership, should be dealt with on the international level. This is where Dr. Bohuslav Ečer comes in, for he was the eminent figure who contributed significantly to the formulation of the Czechoslovak opinion about general war crimes punishment, and was almost single-handedly (only with occasional help of his aide, Dr. Václav Beneš) responsible for presenting these opinions in the UNWCC. It was undoubtedly in a large part thanks to his activism that the Czechoslovak war crimes policy found such a resonance with the Commission. Sometimes it had been a bitter fight in the Commission, for the
43 Cassese, International Criminal Justice, p. 442. 44 Drtina, Prokop. Na soudu národa: Tři projevy ministra spravedlnosti dr. Prokopa Drtiny o činnosti mimořádných lidových soudů a Národního soudu. Praha: Ministerstvo spravedlnosti, 1947, p. 49-50.
22 Anglo-Saxon powers‟ view could at times hardly be more different from the one promoted by Czechoslovakia, and frequently Dr. Ečer had to struggle with the majority opinion opposed to his views. However, the principles which in the end found their way into the Nuremberg Charter bore a striking resemblance to the policies advocated by Dr. Ečer in the UNWCC on behalf of the Czechoslovak government. Until the beginning of 1945 (and perhaps even until Truman‟s succession to the presidency after the death of Franklin Roosevelt) it was not at all clear whether the United States would favour an international trial or a summary execution of the Nazi leaders. In the Administration, a fierce battle ensued between the Treasury Secretary Henry Morgenthau, who supported an extremely harsh treatment of Germany after the war and suggested that all the Nazi leadership be summarily shot45, and the Secretary of War Henry Stimson, who argued strongly in favour of a judicial procedure, insisting that the accused Nazi war criminals should be dealt with “in a dignified manner consistent with the advance of civilization”46. Although Stimson‟s view prevailed in the end, this outcome was not at all clear until the last moment. As for the British, they were downright opposed to a trial, fearing that a trial would be lengthy, expensive and likely to provide a platform for Nazi propaganda.47 This position was mirrored in the approach taken by the British Chairman of the UNWCC Sir Cecil Hurst; Dr. Ečer reported repeatedly to his government that Hurst was generally unwilling to take any decisive stand in favour of an international trial, mentioning that “some influential British quarters had a political decision in view”48. In the end, the British only reluctantly and under substantial pressure from the United States agreed to support an international trial. In contrast to this, Czechoslovakia, along with most the other governments-in-exile, favoured an international trial, reasoning that the fiasco from the aftermath of the last war bore some amount of responsibility for the present state of affairs and must not be repeated; the Czechoslovak representation further argued that punishment by a political decision is an act of political might and not of justice, while the Nazi leaders do not deserve to be treated by political decision: they are vile criminals and should be treated as
45 Bass, Stay the Hand of Vengeance, p. 152-153. 46 Mettraux, Perspectives on the Nuremberg Trial, p. xix. 47 Lippman, Matthew. “Nuremberg: Forty-Five Years Later”; in: Mettraux, Perspectives on the Nuremberg Trial, p. 508. 48 Report No. 27 of the Czechoslovak representative in the UNWCC for the period from 4th August to 17th October, 1944. NA Praha, f. MV-L, k. 210.
23 such.49 This Czechoslovak position was eventually adopted by the UNWCC and the Commission produced a draft convention for the establishment of a United Nations war crimes court which it recommended to the member governments.50 Needless to say, this was the opinion which eventually prevailed and the implementation of which was the Nuremberg Trial itself. The issue of whom to try in the UN criminal court was another problem encountered: while the British were willing to establish trials of lesser criminals, they were opposed to the idea of trying the Nazi leadership, arguing quite absurdly that the guilt of the „arch-criminals‟ like Himmler, Göring or Goebbels was “so black that they fall outside and go beyond the scope of any judicial procedure”51. The Czechoslovak government was fiercely opposed to the notion that for instance Himmler was “too black” to be tried as a war criminal and insisted that the Nazi leaders be included on the Commission‟s list of war criminals, mentioning also the extremely bad impression it would create among the public if the arch-criminals did not appear on the list.52 Eventually, Czechoslovakia decided not to wait for the British decision which might never have come at all and Hitler and his government ended up on the war criminals list, indicted by Czechoslovakia. In doing so, Czechoslovakia was the first and only state to accuse these men officially in the UNWCC.53 This is a very important instance in assessing the Czechoslovak war crimes policy, as it shows Czechoslovakia as a state which from the very beginning held the firm opinion that the „arch-criminals‟ should be punished by judicial decision and which was prepared to voice its policy clearly and to go to great lengths to implement it. Apart from supporting some important principles like individual responsibility, no defence by superior orders, or the primacy of international law over domestic legal norms, all of which found their way into the Nuremberg Charter, the Czechoslovak representation also supported the inclusion of certain specific crimes into the jurisdiction of the future United Nations criminal court. Originally, only war crimes in the traditional sense of the words were to be prosecuted by the Court; however, what the Czechoslovak government envisaged went far beyond the violations of laws and customs of war.
49 Ečer, Norimberský soud, p.15. 50 UNWCC: A Draft Convention for the Establishment of a United Nations War Crimes Court; 30th September, 1944. NA Praha, f. MV-L, k. 210. 51 Kochavi, “Britain and the Establishment of the UNWCC”, p. 327. 52 Report No. 27 of the Czechoslovak representative in the UNWCC for the period from 4th August to 17th October, 1944. NA Praha, f. MV-L, k. 210. 53 Report No. 30 of the Czechoslovak representative in the UNWCC; overview of activities in 1944. NA Praha, f. MV-L, k. 210.
24 Firstly, Dr. Ečer argued for the inclusion of crimes committed on the grounds of race, nationality, religion, or political beliefs54. Although the motivations might have differed here – for while the authors of the Charter had in mind mostly crimes committed against German citizens and Jews, the Czechoslovak representation – although also appalled by the atrocities committed against the Jews – supposedly was more concerned with the crimes committed against their own population which, though Aryan according to the German race theory, was nevertheless Slavic and therefore exploited through forced labour and facing not a particularly rosy future – still this is a definition that bears a striking resemblance to the provision which later appeared in the Nuremberg Charter under the name of crimes against humanity. In his effort concerning this issue, Dr. Ečer was joined by the U.S. representative Herbert Pell who, in contrast to his government, was sincerely appalled by the heinous crimes committed by the Nazis against the Jews and stated that “he did not care under what name the punishment for these crimes will be carried out, as long as it is carried out”55. However, a more intense argument ensued about another category of crimes: namely, the criminalization of the „preparation and launching of the present war‟, where the basic question was: is, or is not aggressive war a crime? It was Dr. Ečer who raised the question for the first time in March 194456, arguing in favour of the inclusion of the crime. His opinion was accepted by the legal committee, but not by the Commission plenum; the Commission requested a report on the issue from a specially appointed sub-committee, of which Dr. Ečer was a member. However, the other three members argued against him, and Sir Arnold McNair, the British member of the sub-committee, summed up their joint opinion in a report stating that “we must bear strictly in mind that we are dealing here with lex lata and not with lex ferenda” and that it may be that after this war such acts will be criminalized, but they are not criminal now.57 Dr. Ečer submitted a minority report in which he argued that aggressive war is to be regarded as a war crime according to pre-war international law (mentioning such treaties as the Geneva Protocol, or the Kellogg-Briand Pact); he further stressed that he was not so much concerned with aggressive war in abstracto as with the present war which he described as differing from a general definition
54 Ečer, Norimberský soud, p. 17. 55 Report No. 15 of the Czechoslovak representative in the UNWCC for the period from 21st March to 15th May 1944. NA Praha, f. MV-L, k. 210. 56 Kochavi, Prelude to Nuremberg, p. 97. 57 UNWCC: Note by Sir Arnold McNair on the question whether the preparation for and the launching of the present war ought to be treated by the Commission as “war crimes”; 18th August, 1944. NA Praha, f. MV-L, k. 210.
25 of aggressive war in the feature of being a „total‟ war, that is a war prepared and launched as series of crimes completely disregarding international law.58 This was perhaps the single most important item on the list of common features of Czechoslovak and Allied, that is in this case particularly American, war crimes policy: as will be discussed later on, for the United States the crime of war of aggression constituted by far the most important principle of the Nuremberg Charter – and the fact that it was the Czechoslovak representative who opened the question of inclusion of the crime of aggressive war in the UNWCC and the fierce fight that the Czechoslovaks put up in the Commission about this issue suggests that for Czechoslovakia it was almost equally important. Here the shared motivation can be established beyond all doubt, and will be discussed in greater detail in the next chapter. In his book on the Nuremberg Trial, Dr. Ečer states:
The Czechoslovak Republic has, through its delegation to the UNWCC, contributed in a substantial way to the victory of the legal belief of the people [that aggressive war is a crime]. I was chosen to report on the question of the actual scope of the United Nations program of war criminals punishment and which crimes should be tried by an international court. [...] I have proposed that the Allies punish the preparation and launching of the Second World War, violations of laws and customs of war, and finally crimes against humanity, committed against people because of their race, religion, or political beliefs. A fight ensued in the Commission over the first category, which eventually ended with the Commission accepting the Czechoslovak position.59
While more than a little self-congratulatory, this account has some fundamental truth to it. The Commission truly did accept most of the propositions made by Dr. Ečer on behalf of his government and the recommendations it issued for the member governments rested to a large extent on the views promoted by the Czechoslovak representative. However, this was, sadly, only a limited achievement, given the rather weak powers of the Commission to influence the goings-on in a substantial way. Its influence was rather indirect at best60, while some argue that in fact it was second to none61. Its major
58 UNWCC: Minority report presented by Dr. Ečer on the question whether the preparation and launching of the present war should be considered as crimes being within the scope of the UNWCC; 27th September, 1944. NA Praha, f. MV-L, k. 210. 59 Ečer, Norimberský soud, p. 17. 60 Kochavi, “Britain and the Establishment of the UNWCC”, p. 324. 61 Bass, Stay the Hand of Vengeance, p. 149.
26 achievement was presumably the fact that it drew attention to the issue of war crimes punishment, and in this rather indirect way forced the great powers to take a stand on the matter. Therefore it is almost certainly an overstatement to assume that it was the Czechoslovak approach which influenced the policy of the great Allies. This, however, does not diminish the Czechoslovak credit for prompting the Western Allies to adopt a clear war crimes policy in the first place and assuring with an unrelenting effort that the issue was being handled at all. Moreover, the almost stunning correspondence between the Czechoslovak policy and the approach that in the end prevailed with the architects of Nuremberg suggests a considerable accordance of the Czechoslovak and American legal views, motivations and opinions on how the future world should look like.
3. The Ideological Basis of Czechoslovak Retribution in International Context
The usual narrative of Nuremberg and of European retribution as a whole has already been touched upon in this thesis. It is the familiar tale of the high-minded Western democracies distributing justice to their undeserving vanquished enemy, proving their civilised and democratic values and their high regard for legalism on the way; on the other side, there are the deceitful Soviets who, themselves not much better than the Germans tried at Nuremberg, only seek vengeance and want to turn the whole undertaking into a show trial, Soviet-style. In this conventional picture, Czechoslovakia with its retributive action is painted in cordial embrace with the Soviets; Czechoslovak retribution is presented as fuelled solely by desire for vengeance, as the wartime reports from the occupied country seem to confirm: “The hatred of the Germans is terrible, as there is hardly a family [...] that wouldn‟t have lost someone who had been either executed or sent into a concentration camp. Both the workers and the bourgeoisie are plotting revenge”.62 An opinion seems to persist that if this longing for vengeance had not been guided into proper channels by the international community (the principal „proper channel‟ being the Nuremberg Tribunal), a bloodbath throughout Europe would have followed.63 Yet, the facts allow for other interpretation as well, in which the United States does not seem quite so legalist, the Nuremberg Trial quite so preoccupied with justice only, and in which the ideological basis of the Czechoslovak retribution shows many common
62 Dispatch of the airlift group Clay, 17th August, 1944; quoted in Jarkovská, Lucie. Odplata či spravedlnost? Mimořádné lidové soudy 1945 – 1948 na Královéhradecku. Praha: Prostor, 2008, p. 28. 63 Birkett, “International Legal Theories Evolved at Nuremberg”; in Mettraux, Perspectives on the Nuremberg Trial, p. 302.
27 features with the ideology underlying the American approach to Nuremberg. This thesis will argue that the features which the Czechoslovak retribution policy had in common with the Soviets stemmed more from a similar wartime experience than from an ideological relatedness of the Czechoslovak and Soviet war crimes policy, and that these common features were only endemic to the immediate aftermath of the war. It will also argue that the aspects which Czechoslovak retribution policy shared with the American approach were more important as they were based on the fundamental ideological background of the Czechoslovak attitude and were concerned with long-term goals of the Czechoslovak policy and with a way to a future world on which retribution was but the first step.
3.1 Showing that the Nazis Were Bandits: Common Features of the Czechoslovak and Soviet War Crimes Policy
Czechoslovak retribution had, to be sure, many things in common with the Soviet way. Czechoslovak representation certainly did pay attention to Soviet war crimes policies: in October 1944, Dr. Ečer held a presentation in the UNWCC about A.N. Trainin‟s book The Criminal Responsibility of the Hitlerites64 in which Trainin, a prominent Soviet authority in international law, argued in favour of establishing an international criminal court to try the Nazi criminals and also for inclusion of the crime of aggression into the jurisdiction of this court; in his report, Ečer quite obviously sympathized with Trainin‟s views. It deserves to be mentioned that the book was published before the American Bernays Plan, which called for basically the same, was conceived, and that the book was reportedly widely read in the U.S. administration.65 The Czechoslovaks also spoke approvingly of the Kharkov trial, the only wartime instance which hinted at what the Soviet way of retribution might look like; in that trial, the Soviet Union tried in 1943 three Germans and one Russian collaborator and, after a swift proceeding, sentenced them all to death.66 More importantly, some of the underlying motivations of the retribution were very similar in the Czechoslovak and Soviet cases. Both countries were invaded by the Nazis – and although the situation in occupied Czechoslovakia could not be compared with the
64 UNWCC: Report by Dr. Ečer on Professor Trainin‟s Book “The Criminal Responsibility of the Hitlerites” at the Commission Meeting of 31st October, 1944. NA Praha, f. MV-L, k. 210. 65 Hirsch, Francine. “The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order”. American Historical Review, Jun 2008, Vol. 113, Issue 3, p. 708. 66 Bass, Stay the Hand of Vengeance, p. 198.
28 unimaginable atrocities committed by the Germans in Russia, still there were such events as Lidice or Heydrich‟s terror which alone would have been enough to incite hatred and desire for vengeance among the Czech public. After these events, the Czechoslovak exile representation pressed for an international trial to be held with those responsible for these and other crimes, and lobbied for it with the Western powers. While these initially paid little attention to such pleas, the Soviet Union repeatedly declared its intention to set up an international criminal court67 even during the war. While the Western Allies were afraid to set up a trial in the wartime because of fear for safety of the British and American soldiers68, the Soviets, whose population had been massacred and whose soldiers had been handled abominably by the Germans, had no such reservations and demonstrated the sincerity of their intentions by conducting the Kharkov trial in the midst of the hostilities. This common devotion to the idea of international court supports Gary Bass‟ famous thesis that countries are more likely to seek justice for war crimes if these are committed against their own citizens69; or, in plainer terms, the more a country has suffered, the more it is likely to be outraged – which might also be one of the reasons why the Western powers were originally so little inclined to plan a trial of the Nazi leaders. This reluctance on the part of countries whose territories were not invaded and their civil population subject to atrocities, contrasted with the activism of the invaded and occupied countries suggest that similar wartime experience indeed lay in the core of the similar Czechoslovak and Soviet approach to the question of war crimes punishment. The Soviets‟ primary motive surely was vengeance. During the Great Patriotic War, about 25 million people were killed and another 25 million were left homeless; the vast areas of the country through which the front went lay in devastation; and the Soviets wanted to see the Germans pay for it. They regarded the Nazi leaders as criminals whose crimes were notorious and whose guilt had already been established beyond all doubt; the Soviet representative at the London Conference and later the Soviet judge at Nuremberg, I.T. Nikitchenko, expressed it very openly at the Conference, stating:
We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea declarations by the heads of the governments. ... The fact that the Nazi leaders are criminals has already been established. The task of the Tribunal is only to determine
67 for instance: Statement of the Soviet Government, 14th October, 1942. 68 Bass, Stay the Hand of Vengeance, p. 182. 69 Bass, Stay the Hand of Vengeance, p. 28.
29 the measure of guilt of each particular person and mete out the necessary punishment – the sentences.70
What the Soviets sought in Nuremberg was also catharsis: the public trial, conviction, and punishment of the Nazi leaders would demonstrate the evils of fascism and the valour of the peace-loving Soviet people.71 After the Tribunal acquitted three of the defendants72 and two of the indicted criminal organizations, the Soviet judge dissented from the acquittals, and the Soviet chief prosecutor R.A. Rudenko stated in his closing statement that he refused that kind of humanism sensitive towards the hangmen and not towards their victims.73 These statements suggest that what the Soviets sought in Nuremberg was primarily vengeance and public and official exposal of the Nazis as bandits and criminals who lost the right to be counted as part of the human society. In accordance with this premise, the punishment of the Nazis was perceived by the Soviets as the primary and fundamental function of the Nuremberg Trial, and the sentencing of the Nazis constituted for them an end in itself. In their seeking of retaliation and catharsis, the Soviets were joined by the Czechoslovaks. Dr. Ečer, now the Czechoslovak delegate at Nuremberg, although agreeing with the Nuremberg judgment in general, commented nevertheless on the acquittals as “an unpleasant surprise”, stating that “the decision of the court in these matters is erroneous and the dissenting vote of the Soviet delegate is well-founded”.74 On the level of underlying motivations, it cannot be denied that in the Czechoslovak approach towards war criminals desire for retaliation played a major role; even such highly respected figures as Ferdinand Peroutka were of the opinion that:
[A]fter having experienced the past six years, we do not want to forgive those guilty; if the evil we have witnessed remained unpunished, our lives‟ fulfilment would not be reached; we are so struck by the atrocious situation we were forced to live in that we would rather choose vengeance than impunity.75
70 International Conference on Military Trials; quoted in: Taylor, Telford. “The Nuremberg Trials”; in: Mettraux, Perspectives on the Nuremberg Trial, p. 382. 71 Hirsch, “The Soviets at Nuremberg”, p. 714. 72 Hans Fritzsche, Franz von Papen, and Hjalmar Schacht were acquitted. 73 Ečer, Norimberský soud, p. 255. 74 Ečer, Norimberský soud, p. 318. 75 Peroutka, Ferdinand. Tak nebo tak. Praha, 1947; in: Borák, Spravedlnost podle dekretu, p. 16.
30 This retaliation against the war criminals was however meant to proceed by means of real trials – that is such trials in which the judgment had not been decided upon before the trial even started – a feature that distinguished the Czechoslovak approach from the Soviet one, favouring pure show trials, substantially. The element of seeking catharsis was distinctly present in the Czechoslovak retribution plans, too. In fact, the plans for retribution were endowed with a considerable degree of gruesome theatricality: in a way retribution was to be presented as a dramatic spectacle which will distinctly mark the end of the Nazi rule. After the invasion of Normandy, President Beneš predicted in a radio address to the occupied country:
It will be but a few months and the gruesome downfall of the Third Reich, this symbol of the worst political evil known to the history of Europe, will come into being. Right before your eyes this abominable creation of the Nazi criminals [...] will fall apart into debris and will become the horrid stage of the decline of the misled German people who have tolerated the Nazi banditry for years [...] and now must bear with it all the horrors of its downfall.76
The tendency to make the downfall of the Nazi rule as spectacular as possible did not stop with mere declarations; against opposition of some government members (for instance the Social Affairs Minister Ján Bečko) a proposal was put through – and eventually found its way into the actual Retribution Decree – that in some cases77 the executions of the convicted criminals could be carried out publicly. This was to serve, apart from the deterrent function, a psychological purpose: the people who for years had to witness helplessly the Nazi crimes would now be given the opportunity to watch the retaliation for them with their own eyes. The public executions were meant to emphasize the end of the Nazi rule.78 Thus, the element of catharsis, which was characteristic for the Soviet view of post-war punishment of the Nazis, was distinctly present in the Czechoslovak retribution plans too. However, these apparent similarities to the Soviet approach were brought about more by similar wartime experience than by direct Soviet influence. Although there was growing cooperation between Czechoslovakia and the Soviet Union during the war, it was
76 Beneš, Šest let exilu, p. 231. 77 Usually in cases of exceptionally cruel crimes, perverse character of the culprit, multiple crimes, or high standing of the culprit. 78 Poznámky k zákonu o potrestání nacistických zločinců mimořádnými lidovými soudy. AKPR Praha; f. LA, k. 17.
31 much more a question of perceived political necessity than of approval of the Soviet policies and domestic regime. The Czechoslovak Republic, feeling acutely its precarious position in the immediate neighbourhood of Germany, viewed its western neighbour as an imminent security threat even after the war and put enormous effort into trying to secure its independence by treaties with the great powers. However, although Czechoslovakia tried to conduct a balanced policy toward all the big Allies, and endeavoured to secure the friendship and protection of all three great powers, these efforts met with little success in the West: both the United States and Great Britain made clear that they had no interest in alliances with the small countries of Central and Eastern Europe.79 Therefore, if Czechoslovakia wanted any security guarantees at all, it had to turn to the Soviet Union. This security alliance had, however, nothing to do with Czechoslovak attitudes towards communism. It must be noted that the Czechoslovaks had abundant experience with their own communist party which had always acted as an anti-systemic party par excellence and had been a nuisance throughout the whole era of the First Republic. They also witnessed the events in Poland and the creation of the Lublin Committee and, their official statements notwithstanding,80 had few illusions about the Soviet system and very little desire to end up like the Polish.81 However, they felt that the alliance with the USSR was necessary to maintain the security of Czechoslovakia against the German threat. To acquire a notion of how Czechoslovak retribution would have looked like, had it really been under Soviet influence, one only needs to look at the retribution law conceived by the Czechoslovak communist leadership which made Moscow its wartime headquarters. Its main identifying feature was that it did not understand retribution individually, but summarily, according to what social class those potentially indicted came from. Naturally, the communists argued that the working class was powerless in the hands of the employers, and therefore it was innocent; it were the members of the bourgeoisie who collaborated with the enemy and therefore had to be punished.82 In the hands of the communists, retribution would clearly have turned into a tool of class struggle and socialist revolution; the communist leader Klement Gottwald commented blatantly that in their
79 Kuklík, Mýty a realita takzvaných Benešových dekretů, p. 122. 80 The official statements went usually in the line of praising the Soviet Union as the great Slavic ally. 81 Kuklík, Mýty a realita takzvaných Benešových dekretů, p. 124. 82 Návrh retribučního dekretu vypracovaný exilovým vedením KSČ v Moskvě; Moskva, leden 1945; in: Jech, Kaplan, Dekrety prezidenta republiky, 186-194.
32 hands, retribution would become a sharp weapon “with which the very roots of the bourgeoisie could be cut”.83 In the Czechoslovak, similarly as in the Soviet case, the war crimes policy reflected in one its aspect the desire for retaliation for the suffering inflicted by the Nazi rule and invasion upon both countries, and also a need for psychological catharsis, as the punishment of the culprits was meant to have a purging effect on the former victims. However, while in the Soviet case this was the principal purpose of the war crimes punishment, in the case of Czechoslovakia this function of retribution was only secondary to more long-term goals consistent with the underlying ideological basis of the Czechoslovak retribution policy.
3.2 Building a New World: Common Features of the Czechoslovak and American War Crimes Policy
The elements Czechoslovak war crimes policy had in common with the United States concerned, in contrast to the aspects shared with the Soviets, not so much the immediate reckoning with the Nazi criminals, but rather long-term visions of reconstruction of the republic and of the building of the new world order. These elements connecting the Czechoslovak retribution plans to the U.S. policy seem more characteristic and of greater importance for the understanding of the Czechoslovak war crimes policy than the features common with the Soviets: firstly, while the longing for retaliation, or revenge for the Nazi crimes was largely a question of public feeling and not of government policy, the features common with the Americans were part of the ideological basis of the Czechoslovak policy as expressed and conducted by the exile government in London; and secondly, while for those who placed retaliation first, retribution was largely an end in itself, for those who supported a more constructive approach it was only a precondition for starting a greater and far more important job: rebuilding the republic and the world. For the United States, the Nuremberg Trial had two essential tasks: firstly, it was to be a political trial, showing the superiority of the liberal democracies over the totalitarian system of Nazi Germany; and secondly, it was envisaged as a historical trial, becoming a cornerstone of a new world order without war. This thesis argues that on both issues, the American view was shared by Czechoslovakia.
83 Gottwald, Klement. Spisy. Sv. XII (1945-1946). Praha, 1955; in: Borák, Spravedlnost podle dekretu, p. 14.
33 As has already been pointed out, the architects of Nuremberg did not conceive the Trial as only a legal undertaking, concerned solely with finding justice. In his essay entitled “In Defense of Liberal Show Trials – Nuremberg and Beyond” Mark J. Osiel coins the term „liberal show trial‟ and defines it as one “self-consciously designed to show the merits of liberal morality,” which strives to “dramatize the implacable contradiction between the methods of totalitarianism and the ways of civilized humanity through a worldwide demonstration of fair judicial procedure”.84 Nuremberg is definitely a case in point here. To perceive Nuremberg as an exclusively judicial enterprise, concerned only with legal questions is to slight the political and historical aspects of the Tribunal, which are no less important than the legal procedure itself, and were perhaps of greater importance to those who conceived the Trial. The fact that Nuremberg was to a large extent a political trial was admitted even by its makers and participants. Henry Stimson, the most influential proponent of judicial treatment of the Nazi criminals in the U.S. administration, whose views eventually prevailed and became the official government policy, expressed his conviction that the United States should conduct a trial of the Nazi criminals and should not execute them summarily; for, Stimson argued, summary execution was exactly the type of “justice” the Nazis would use, and: “[T]his fact was in reality the best reason for rejecting such a solution. The whole moral position of the victorious Powers must collapse if their judgment could be enforced only by Nazi methods.” In this situation, he argued, the Allies could demonstrate their faithfulness to their superior ideals and give the Nazis a fair trial, something they have denied their opponents. “Our anger,” he added, “as righteous anger, must be subject to the law”.85 This statement suggests that Stimson placed great emphasis on the „moral position‟ of the Allied powers and saw Nuremberg as an opportunity to show to the whole world the moral superiority of the Allies. Precisely in accordance with the liberal show trial thesis he maintained that to give an outrageous enemy a fair trial is the best way to demonstrate the merits of liberal morality and the fundamental contradiction gaping between the barbarous ways of the Nazis and the civilized and just methods of the liberal democracies. Apart from showing this inherent contrast to the world, it also had to be made clear to the Germans themselves: if they were ever to be admitted back to human society, the
84 Osiel, Mark J. “In Defense of Liberal Show Trials – Nuremberg and Beyond”; in: Mettraux, Perspectives on the Nuremberg Trial, p. 705-706. 85 Stimson, Henry L. “The Nuremberg Trial: Landmark in Law”; in: Mettraux, Perspectives on the Nuremberg Trial, p. 617.
34 German people must have been made to understand how wrong the dictatorial Nazi system was and how right the liberal democracies were. This, too, was one of the principal tasks of the Trial. Lord Justice Lawrence, the British President of the Tribunal, declared that the purpose of the Trial was not only punishment, but also “bring[ing] home to the German people and to the peoples of the world, the depths of infamy to which the pursuit of total warfare had brought Germany”.86 Similarly, the German defence counsel Otto Kranzbühler recalled that during a discussion in the course of which Robert Jackson was asked what, according to him, the purpose of the Trial was, he
answered without hesitation [...] not, as might have been imagined, that the purpose of the trials was to bring criminals to conviction, but that it had two purposes: one, to prove to the world that the German conduct of war had been illegal and unjustified just as the United States had alleged [...]; and the other, to make it clear to the German people that it deserved severe punishment [...]87
The Soviets thus were not the only ones who preferred a certain kind of show trial: to the Western democracies, this was not so remote an idea as it might seem on the first sight, but it was a different kind of „show trial‟ than the Soviets would have wished for. While the Soviets primarily wanted to show that the Nazis were bandits and their starting point was that all humankind would watch the summary execution of the Nazi leaders with satisfaction (which, to a large extent, was probably true), the Americans had quite another point in mind: apart from „bringing home‟ to the Germans what horrid criminals they have tolerated as their leaders and apart from showing the Nazi evil in all its ugliness, they primarily aimed at contrasting the ways of the Nazi regime to their own. The goal was to demonstrate the liberal democratic virtue which, even when facing such abominable criminals as the Nazis, did not forget its supreme value of justice and was able to demonstrate its ability to treat even the worst enemy in a civilized way. The Nazis may have been hostes humani generis88, but the liberal democracies did not cease to be liberal democracies because of that. The fundamental conflict here lay with the systems, not the individuals: and at the „political Nuremberg‟, the Nazi regime in general was in fact tried
86 Lawrence, Geoffrey (Lord Oaksey). “The Nuremberg Trial”; in: Mettraux, Perspectives on the Nuremberg Trial, p. 292. 87 Kranzbühler, Otto. “Nuremberg Eighteen Years Afterwards”; in: Mettraux, Perspectives on the Nuremberg Trial, p. 443. 88 Report No. 23 of the Czechoslovak representative in the UNWCC for the period from 4th August to 17th October 1944. NA Praha, f. MV-L, k. 210.
35 in the individual defendants. In this sense, the Trial served as a platform for demonstration of the liberal democratic virtue which could react to horrendous crimes by conducting a fair trial. In essence, Czechoslovakia shared the Americans‟ view of the war crimes punishment as a political endeavour devoted to promoting the cause of liberal democratic values, although Czechoslovakia‟s starting position was in some respect very different from the American one. While the United States, whose territory and civil population stayed virtually intact during the war, could more easily afford a demonstration of liberal virtue by setting up a more or less fair trial, in Czechoslovakia as a formerly occupied country there was an understandable public outcry for retaliation. However, as already noted, the guiding principles of Czechoslovak war crimes policy were more constructive than that. It is important to realise that one of the fundamental driving forces of the Czechoslovak policies was the pre-war democratic tradition. One constituting part of President Beneš‟s vision of future Czechoslovakia was the pursuit of continuity of the pre- Munich republic – not only territorially, but above all politically. The ideological basis on which the Czechoslovak policies rested was democratic, with the most cherished values of humanism and justice. The war effort had from the beginning been presented as a struggle between democracy and fascism89, that is a primal battle of good and evil. In his addresses, the President invariably drew a picture of the Czechoslovak Republic as a perfect opposite of the vicious Nazi regime: while the Nazi Germany was “the worst enemy of mankind and culture” and the “suppressor of all civil liberties and human dignity” and the Nazi regime itself was “the culmination of all social, political, and moral evil known to human history”90, Czechoslovakia represented the true opposite: it embodied such values as progress, democracy, justice, and rule of law.91 The Czechoslovak war crimes policy was thus showing the same tendencies which were driving the United States‟ approach to Nuremberg: it drew a sharp line between the democratic and the totalitarian political system and was devoted to proving the superiority of the own system. This superiority was, quite in tune with the American position, thought best to be demonstrated by giving the loathed enemy a fair trial, something the Nazis had themselves never granted their enemies. The Czechoslovak representatives stated repeatedly that “we do not want vengeance and we will not carry out vengeance. [...] We will examine, deliberate, and
89 Beneš, Šest let exilu, p. 223. 90 Beneš, Šest let exilu, p. 67. 91 Beneš, Šest let exilu, p. 73.
36 judge everything that had happened, justly and carefully.”92 In these proceedings and deliberations, however, again very much like in Nuremberg, the inherent criminality of the Nazi regime had to be demonstrated and punished. President Beneš stated that “the German nation is guilty, deserves punishment, and will be punished” and declared that uprooting Nazism was “our moral duty”.93 The Czechoslovak delegate at Nuremberg, Dr. Ečer, was of the same opinion with Robert Jackson that one of the main tasks of the Trial was to reveal the “sinister influences that will lurk in the world long after their [the Nazi leaders‟] bodies have returned to dust”94 and – in accordance with the official Czechoslovak policy – expressed his approval of the idea that the real point of the Trial was not to convict the individual criminals, but to discredit and uproot the system and ideology, which they represented, as a whole. He argued that the coalition of the Allied nations represented virtually the whole civilised humanity, which is now at Nuremberg trying men who in turn stood for the most sinister era of human history. Significantly, Ečer stated that the process examined above all “the merits and harmfulness, the morality or immorality of certain social systems, political ideas and regimes, and moral principles”.95 Thus also in the Czechoslovak policy the fundamental contrast between democracy and its superior values and the beastly Nazi totalitarianism was ever-present, and Czechoslovakia joined the front of the Western democracies, particularly the Americans, in taking the opportunity to present its own democratic values and civilised ways, and at the same time to demonstrate the atrocious character of the Nazi regime.
This, however, was only one part of the plan, for Nuremberg had not only a political aspect to it; it was also a historical trial, the Trial to End All Wars. One thing was to show to the world the monstrosity of the Nazi regime and the high-mindedness of the victorious democracies; another thing was to start building a new house of the international community upon the debris. The war had been a major crisis and the world community and its institutions had been deeply shaken, but on the other hand, a major crisis was also a major opportunity for a new beginning. This was also the way how the victorious powers understood the situation. On the one hand, there was the catastrophe of war which took millions of lives
92 Beneš, Šest let exilu, p. 233. 93 Beneš, Šest let exilu, p. 241. 94 Ečer, Bohuslav. Poučení norimberského soudu pro Slovany. Brno: Tiskové a vydavatelské podniky Zář, 1947, p. 5. 95 Ečer, Norimberský soud, p. 7.
37 and left the old structures in pieces; on the other hand, this constituted a singular occasion for a change of the rules of conduct of the international society, an opportunity for rebuilding the world according to new, better laws, so that an equal catastrophe may never occur again. This was to a certain extent a re-staging of the tendencies which arose in the aftermath of the First World War. This time, however, the conduct of the victorious powers was to be different in one significant point: after the First World War, the „guilty instigators‟ of the war were not punished, and no attempt was made to uproot the militarist ideology underlying their actions. The Allies, and the occupied countries in particular, shared the belief that the fiasco of the intended punishment of war criminals after the First World War was in direct relation to Hitler‟s rise to power.96 Now they reasoned consistently with this view, arguing that if the punishment of the Nazi criminals and the uprooting of Nazism itself were neglected, it would undoubtedly sow the seeds of a future catastrophe. The punishment of war criminals and denazification were therefore seen as necessary preconditions of the greater task of building a new world order. Although today it is the crimes against humanity that are regarded as the supreme achievement of the Nuremberg law, the contemporaries saw the matter quite differently: for them it was the crimes against peace and the outlawing of aggressive war which mattered most.97 The American chief prosecutor Robert Jackson stated repeatedly that aggressive war and international lawlessness constituted the “most serious challenge that faces modern civilization”98 and that one of the fundamental purposes of the Trial was to establish that the Nazi aggressive war was unlawful.99 Also the U.S. War Secretary Stimson argued that “the man who makes aggressive war at all makes war against mankind”100. In order to avoid a future catastrophic war, there was, according to the architects of Nuremberg, only one proper course: to create such an international system that would put an end to lawlessness, introduce the rule of international law, and rule out aggressive war as means of international policy. The international community had to be secure in the future from the threat of another apocalyptic war similar to the Second World War – and this was to be achieved through the means of international law. Along with the United Nations Charter, the principles established at Nuremberg were envisaged to
96 Frommer, National Cleansing, p. 65. 97 Bass, Stay the Hand of Vengeance, p. 177. 98 Jackson, Robert H. “Nuremberg in Retrospect: Legal Answer to International Lawlessness”; in: Mettraux, Perspectives on the Nuremberg Trial, p. 354. 99 Kranzbühler, “Nuremberg Eighteen Years Afterwards”; in: Mettraux, Perspectives on the Nuremberg Trial, p. 443. 100 Stimson, “The Nuremberg Trial”, in: Mettraux, Perspectives on the Nuremberg Trial, p. 621.
38 constitute the fundaments of a new world order in which aggressive war will be condemned and collective security assured through universal cooperation of all states. In this new world order, Nuremberg was to serve as a “cornerstone in the house of peace”101 and some even argued that “Nuremberg, far more than San Francisco, was the assumption of the irrevocable obligation – to build a world of just law that shall apply to all, with institutions strong enough to carry it into effect.”102 In the building of this new world order, Nuremberg law and the Trial itself both played a fundamental role: while the Nuremberg Charter was intended to set new rules of international conduct, the Trial was meant to leave no doubt that the trespassers will be severely punished by the international community. The Trial was to serve both the purpose of „cleansing‟ the world community of a regime which by its every act defied the rules of civilized coexistence of nations, and simultaneously the purpose of deterring future crimes of similar kind. In these hopes and intentions, the architects of Nuremberg were joined by Czechoslovakia. From the aforementioned activities of the Czechoslovak representative in the UNWCC it is apparent that Czechoslovakia attributed great importance to the effort to outlaw aggressive war; this, after all, was not quite so surprising in a country which had been one of the first victims of the aggressive expansionism of the Nazi Germany. The Czechoslovak representation emphasized not only their conviction that peace was indivisible103, but also the vital importance of peace and international rule of law for a small country of Czechoslovakia‟s type:
Every state of our kind has special interest in rule of law in the world community. A great state can use its power to assure its existence, but a small state, against the superior force of its stronger neighbours, cannot. For a small state, therefore, international rule of law is the best guarantee of its independence and freedom.104
Thus Czechoslovakia, very much in the manner of the United States‟ attitude, saw aggressive war as the single most dangerous threat to civilization and was convinced that only a new world order which would include an effective system of collective security based on adherence to international law could ensure the peaceful existence of the world
101 Birkett, “International Legal Theories Evolved at Nuremberg”, p. 301. 102 Wechsler, Herbert. “The Issues of the Nuremberg Trial”; in: Mettraux, Perspectives on the Nuremberg Trial, p. 319. 103 Beneš, Šest let exilu, p. 355. 104 Ečer, Norimberský soud, p. 14.
39 community. Deeply convinced that the events of 1938 and 1939, which lead to such catastrophic consequences, must never be allowed to reoccur, Czechoslovakia was actively involved in the process of international peace-building: it became the founding member of the key institutions like the United Nations or the Bretton Woods Agreements105 which were established after the war as pillars of the new world order of cooperation and security. The Czechoslovak government also pushed for the inclusion of the issue of war crimes punishment on the agenda of the San Francisco conference as a preliminary question, pointing out the “self-evident connection between war crimes and world security”.106 In these negotiations, Czechoslovakia proved a great proponent of the idea that outlawing aggressive war was necessary for future well-being of the international community, and that this was best achieved by creating an international system based on respect for international law: a position completely in accordance with what the United States promoted as regards the question of the future world order. Another point on which Czechoslovakia agreed with the position presented by the United States was the question of the importance it attached to the punishment of Nazi war criminals for the building of the new world. Like the United States, Czechoslovakia saw the war crimes punishment as a necessary precondition of introducing the new world order. Firstly, there was the notorious precedent of the failed punishment after the First World War, and the Czechoslovak representation shared the belief that the Leipzig fiasco bore a major amount of responsibility for the subsequent rise of Nazism. Also the other constituting parts of the Czechoslovak position bore great resemblance to the American motivation: on the one hand, retribution was meant to serve as a deterrent from perpetrating such crimes in the future. Apart from the general concern that the republic may never again fall victim to aggression of a more powerful state and that the „sinister influences‟ lurking in the Nazi Germany be kept at bay, there was a more immediate concern in this question for Czechoslovakia: at the time when the retribution plans were conceived, that is before the end of the war, there were fears that at the time when the Czechoslovak representation will be returning to the country, the fighting might not be over yet and that they might well be returning to a battlefield; after all, the violence of the Freikorps in Germany after the last war was still in fresh memory. Therefore, swift punishment was meant not only to punish past crimes, but also to deter new ones. As Dr. Ečer warned in his reports to the exile government, prevention was in the immediate
105 Kuklík, Mýty a realita takzvaných Benešových dekretů, p. 132. 106 Nóta československé vlády ke konferenci v San Francisku, 5th April, 1945. NA Praha, f. MV-L, k. 212.
40 interest of Czechoslovakia: otherwise “the Nazi bands will remain at large after the war and will perpetrate murders [...] in disordered Europe.”107 Because of the fears of continuing violence on domestic level and because of the gloomy experience from the war, the question of deterring future crimes assumed for Czechoslovakia an extremely concrete form, and was felt very acutely by the policymakers. On the other hand there was the question of cleansing the community of the malefactors in order to facilitate a new beginning. While this problem was perceived by the United States primarily on the international level (seeing the Nazis as violators of the international rules of conduct and criminals under international law), in Czechoslovakia‟s case the international level was, quite understandably, only secondary to the punishment of the crimes perpetrated on Czechoslovak territory against Czechoslovak population. The punishment of the Nazis and their accomplices was to serve the purpose of the so-called “national cleansing”. The primary focus of the political representation in the post-war period was on reconstruction of the state, its institutions and the “healthy national life”108; and according to the authors of the retribution, this could hardly be done with the Nazi criminals still at large and with collaborators in the midst of the Czechoslovak people. Retribution and uprooting Nazism were listed as the immediate priorities of the government after the war109, but the main focus was clearly on the reconstruction; this was hinted at by the swiftness with which retribution was to proceed and by the much emphasized temporary character of the retributive action. Both President Beneš and the State Council110 stressed that the character of the retribution law was strictly temporary and that the purpose of the law was to deal with Nazism as quickly as possible, in order to facilitate suitable conditions for the post-war reconstruction.111 The Czechoslovak retribution was guided by the effort to clean the nation of “traitors and defectors”112, as the „new life‟ after the war was supposed to be possible only with „new people‟, that is those not burdened with past guilt. Here, great similarity can be traced between the American approach on the international level and the Czechoslovak domestic efforts, as both aimed
107 Letter from Dr. Ečer to Dr. Stránský from 14th February, 1944. NA Praha, f. MV-L, k. 209. 108 Drtina, Na soudu národa, p. 27. 109 Kuklík, Mýty a realita takzvaných Benešových dekretů, p. 121. 110 An advisory body in the Czechoslovak exile administration; although the delegates were appointed, not elected, its function can be in some ways likened to that of a provisional parliament. 111 Report by the State Council - Poznámky k zákonu o potrestání. AKPR Praha, f. LA, k. 17; Záznam názorů E.Beneše na trestání válečných zločinců; end of 1942/ early 1943. In: Jech, Kaplan, Dekrety prezidenta republiky, p. 180. 112 Jarkovská, Odplata či spravedlnost, p. 279.
41 at making a clean break with the past and at starting anew after the wrongs of the past have been dealt with. Despite this preoccupation with the domestic retribution, Czechoslovakia paid, as has already been mentioned, great attention to the international developments, especially to Nuremberg, and the Czechoslovak representation repeatedly emphasized the interconnection between the domestic and international punishment of war criminals.113 As Dr. Ečer expressed it, “without this cleansing, all plans of reconstruction of Europe and democratization of Germany are built on sand. It is impossible to build the house of European, and world peace upon a quagmire from which poisonous fumes still emit.”114 War crimes punishment both on the international and domestic level was perceived as a necessary precondition of the post-war reconstruction of the country and the world and of future peaceful development. This reasoning was in every respect parallel to the rationale of the Nuremberg Trial, which was also concerned with uprooting Nazism as an important first step towards building the new world order. Similarly to the United States, Czechoslovakia understood the post-war period as a time of revolutionary change, a continuation of the changes which took place after the First World War, as a struggle for democracy, progress and new social order. 115 The changes which took place after the Second World War meant for Czechoslovakia both a domestic and an international struggle for a new political order of cooperation and security governed by international law, in which the evils of Nazism and aggressive war had no place. To ensure this, the punishment of war criminals and uprooting of Nazism had to be carried out in the first place, for “until the enemies of peace were rendered harmless, no peace was possible”.116 Thus it can be argued that Czechoslovakia shared all the major expectations and motivations of the United States concerning the Nuremberg Trial: Czechoslovakia, too, saw as the principal tasks of the Trial itself and of the law established in the Nuremberg Charter the outlawing of aggressive war, the creation of an international system based on rule of law, a demonstration showing that international crimes will no longer go unpunished, and the reckoning with the Nazi criminals and uprooting of the atrocious regime they represented, so that nothing stood in the way of building a new and better world order.
113 Beneš, Šest let exilu, p. 328. 114 Ečer, Poučení norimberského soudu pro Slovany, p. 73. 115 Beneš, Šest let exilu, p. 223. 116 Nóta československé vlády ke konferenci v San Francisku, 5th April, 1945. NA Praha, f. MV-L, k. 212.
42 4. Conclusion
In his speech on the occasion of the invasion of Normandy in June 1944, President Beneš addressed the issue of war crimes punishment and stated:
We do not want vengeance and we will not carry out vengeance. We do not want to and we will not destroy the anti-fascist German people. But we will repair all the wrongs of the German fascism and we will make such provisions for the future so that all that had happened against our republic may not happen again.117
This thesis attempted to show that the Czechoslovak government-in-exile indeed went to great lengths to achieve the implementation of their promises: it joined with the other exile governments of the occupied European countries in exerting pressure on the Western Allies to adopt a decisive war crimes policy, and later played a crucial role in the United Nations War Crimes Commission, a body established as a result of the exile governments‟ efforts. In the UNWCC, Czechoslovakia promoted principles that were almost identical to those which eventually appeared in the Nuremberg Charter. This fact suggests that the Czechoslovak retribution policy was driven by much the same motivations which were underlying also the actions of the United States, the principal architect of the Nuremberg Trial. This thesis set out to prove that this indeed was so and that, despite some similarities of the Czechoslovak and the Soviet approach to war crimes punishment, which were however confined almost exclusively to the immediate effects of reckoning with the Nazi criminals, the ideological basis and the fundamental motivations of the Czechoslovak war crimes policy were almost identical to the American motives. In a manner similar to the U.S. approach, the Czechoslovak representation saw the war crimes punishment essentially as a precondition for establishing a new world order of security and cooperation in which aggressive war would be outlawed and international conduct governed by international law. The complex story of the Czechoslovak war crimes policy reveals the fundamental finding that for Czechoslovakia, the punishment of Nazi war criminals, both at home and internationally, was above all to serve as the first step on the way toward a new, better world.
117 Beneš, Šest let exilu, p. 233.
43 Bibliography
Primary sources
Archives
Národní archiv Praha (NA Praha) Ministerstvo vnitra Londýn (MV-L) Archiv Kanceláře prezidenta republiky (AKPR) Londýnský archiv (LA)
Contemporary publications and documents
Beneš, Edvard. Šest let exilu a druhé světové války. Řeči, projevy a dokumenty z r. 1938 – 1945. Praha: Orbis, 1946. Drtina, Prokop. Na soudu národa: Tři projevy ministra spravedlnosti dr. Prokopa Drtiny o činnosti mimořádných lidových soudů a Národního soudu. Praha: Ministerstvo spravedlnosti, 1947. Ečer, Bohuslav. Norimberský soud. Praha: Orbis, 1946. Ečer, Bohuslav. Poučení norimberského soudu pro Slovany. Brno: Tiskové a vydavatelské podniky Zář, 1947. Jackson, Robert H. “Nuremberg in Retrospect: Legal Answer to International Lawlessness”. In: Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008. Jech, Karel, Kaplan, Karel. Dekrety prezidenta republiky 1940 – 1945: dokumenty. Brno: Doplněk, 2002. Justice Jackson‟s Opening Statement before the International Military Tribunal. Jackson Center Research Archive. http://www.roberthjackson.org/the-man/speeches- articles/speeches/speeches-by-robert-h-jackson/opening-statement-before-the- international-military-tribunal/. Accessed on 28th April, 2010. Lawrence, Geoffrey, Lord Oaksey. “The Nuremberg Trial”. In: Mettraux, Guénaël , Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008. Stimson, Henry L. “The Nuremberg Trial: Landmark in Law”. In: Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008.
44 Wechsler, Herbert. “The Issues of the Nuremberg Trial”. In: In: Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008.
Secondary literature
Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton and Oxford: Princeton University Press, 2000. Birkett, Norman. “International Legal Theories Evolved at Nuremberg”. In: Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008. Borák, Mečislav. Spravedlnost podle dekretu: retribuční soudnictví v ČSR a Mimořádný lidový soud v Ostravě (1945 – 1948). Ostrava: Tilia, 1998. Cassese, Antonio (ed.). The Oxford Companion to International Criminal Justice. Oxford: Oxford University Press, 2009. Feierabend, Ladislav. Politické vzpomínky III. Brno: Atlantis, 1996. Frommer, Benjamin. National Cleansing: Retribution against Nazi Collaborators in Postwar Czechoslovakia. Cambridge (i.a.): Cambridge University Press, 2005. Glueck, Sheldon. “The Nuernberg Trial and Aggressive War”. In: Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008. Hirsch, Francine. “The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order”. American Historical Review, Jun 2008, Vol. 113, Issue 3, pp. 701-730. Jarkovská, Lucie. Odplata či spravedlnost? Mimořádné lidové soudy 1945 – 1948 na Královéhradecku. Praha: Prostor, 2008. Kochavi, Arieh J. “Britain and the Establishment of the United Nations War Crimes Commission”. The English Historical Review, Vol. 107, No. 423 (Apr., 1992), pp. 323 – 349. Kochavi, Arieh J. “Discord within the Roosevelt Administration over a Policy toward War Criminals”. Diplomatic History, Vol. 19, No. 4 (Fall 1995), pp. 617 – 639. Kochavi, Arieh J. Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment. Chapel Hill, NC (i.a.): University of North Carolina Press, 1998. Kranzbühler, Otto. “Nuremberg Eighteen Years Afterwards”. In: Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008.
45 Kuklík, Jan. Mýty a realita takzvaných Benešových dekretů: Dekrety prezidenta republiky 1940 – 1945. Praha: Linde, 2002. Lippman, Matthew. “Nuremberg: Forty-Five Years Later”. In: Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008. Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008. Osiel, Mark J. “In Defense of Liberal Show Trials – Nuremberg and Beyond”. In: Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008. Taylor, Telford. “The Nuremberg Trials”. In: Mettraux, Guénaël. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press, 2008. Werle, Gerhard. “General Principles of International Criminal Law”. In: Cassese, Antonio (ed.). The Oxford Companion to International Criminal Justice. Oxford: Oxford University Press, 2009.
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