Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment

By Arieh J. Kochavi

Between November 1945 and October 1946, the International
Military Tribunal in Nuremberg tried some of the most notorious
political and military figures of Nazi Germany. The issue of
punishing war criminals was widely discussed by the leaders of
the Allied nations, however, well before the end of the war. As
Arieh Kochavi demonstrates, the policies finally adopted,
including the institution of the Nuremberg trials, represented
the culmination of a complicated process rooted in the domestic
and international politics of the war years.

Drawing on extensive research, Kochavi painstakingly
reconstructs the deliberations that went on in Washington and
London at a time when the Germans were perpetrating their worst
crimes. He also examines the roles of the Polish and Czech
governments-in-exile, the Soviets, and the United Nations War
Crimes Commission in the formulation of a joint policy on war
crimes, as well as the neutral governments' stand on the question
of asylum for war criminals. This compelling account thereby
sheds new light on one of the most important and least understood
aspects of World War II.

• Language: English
• Publisher: The University of North Carolina Press
• Release date: Nov 9, 2000
• ISBN: 9780807866870

Arieh J. Kochavi

Arieh J. Kochavi is professor of modern history and chair of the history department at the University of Haifa. He is author of Post-Holocaust Politics: Britain, the United States, and Jewish Refugees, 1945-1948 and Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment.

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Prelude to Nuremberg

Prelude to Nuremberg

Allied War Crimes Policy and the Question of Punishment

Arieh J. Kochavi

The University of North Carolina Press

Chapel Hill and London

© 1998

The University of North Carolina Press

All rights reserved

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Library of Congress

Cataloging-in-Publication Data

Kochavi, Arieh J.

Prelude to Nuremberg: Allied war crimes

policy and the question of punishment /

by Arieh J. Kochavi.

p. cm.

Includes bibliographical references and index.

ISBN 0-8078-2433-X (alk. paper)

1. World War, 1959–1945—Atrocities. 2. United Nations War Crimes Commission—History. 3. War crimes. I. Title.

D803.K63 1998

940.53′1—dc21 97-47745

CIP

02 01 00 99 98 5 4 3 2 1

THIS BOOK WAS DIGITALLY MANUFACTURED.

To my parents, Judith and David Kochavi

Contents

Acknowledgments

Abbreviations and Acronyms

Introduction

1. Governments-in-Exile Call for Retaliation

The Demand for a Declaration

Contention within Whitehall

The Big Powers Stand Aloof

Retaliatory Air Raids?

2. Setting Up a War Crimes Commission

Whitehall under Pressure

Anglo-Soviet Disputes over Rudolf Hess and the Baltic Republics

The Appointment of Herbert C. Pell

Inaugurating the UNWCC without the Soviets

3. Summary Execution

Soviet War Crimes Trials

Churchill’s Radical Plan

Morgenthau versus Stimson

Roosevelt and Churchill in Agreement

Suspending a Decision

4. Obstructing the UNWCC

Sphere of Operation

What Is a War Crime?

Is Aggressive War a War Crime?

Listing War Criminals

Limiting the UNWCC

Press Criticism

Who Is a Major War Criminal?

International Courts or Military Tribunals?

Hurst Breaks with the Foreign Office

The State Department Traps Pell

Striving for a New Image

Maneuvering for a Postwar Role

Summing Up

5. Atrocities Other Than War Crimes

The Extermination of the Jews

Pell Takes On the State Department

London Decides on a Narrow Interpretation

Washington Alters Its Stand

Whitehall Ignores Washington’s Reversal

Crimes against Humanity

6. Asylum for War Criminals

Whether to Address the Neutrals?

Neutrals Maneuver between the Belligerents

Neutrals Yield under Pressure

7. Closing the Circle

Contention within Whitehall

Discord within the Roosevelt Administration

Anglo-American Differences

Washington Takes the Lead

The Nuremberg Charter

Conclusion

Epilogue

Notes

Bibliography

Index

Acknowledgments

The research and writing of this book was made possible to a great extent by a generous grant from the Council for the Exchange of Foreign Scholars, the United States-Israel Educational Foundation (the Fulbright Program). Part of the manuscript was written at the Meyerhoff Center for Jewish Studies, University of Maryland, where I stayed as a Fulbright Fellow during 1994–95. I wish to express my sincere thanks to the center’s director, Bernard Cooperman, for his warm hospitality; to Sandy Greene, the center’s secretary; and to the ever helpful Kathleen Russell of the university’s computer center. I am also grateful to James E. Harris, then chair of the history department at the University of Maryland.

In the course of my research I visited archives and libraries on both sides of the Atlantic, among them the National Archives, College Park, Maryland; the Franklin D. Roosevelt Library, Hyde Park, New York; the Harry S. Truman Library, Independence, Missouri; the Library of Congress, Washington, D.C.; Columbia University, New York City; the Public Record Office, Kew, England; and the Roosevelt Study Center, Middelburg, the Netherlands. Archivists in all places were most helpful and kind. I would like to single out specifically the archivists of the Military Branch of the National Archives, particularly Wilbert Mahoney and John Taylor. The staff of the Roosevelt Study Center, Middelburg, moreover, provided me with a research grant. The Jacob and Clara Egit Foundation of Toronto, Canada, kindly provided assistance toward the publication of this book.

Hasia and Steve Diner, Yoav Gelber, Robert E. Herzstein, Ronald Spector, Mark A. Stoler, and Miriam Yardeni encouraged me during the long process of researching and writing this book. I owe a special debt of gratitude to Mechal Sobel. Asher Goldstein invested time and effort in editing my text, while Dick Bruggeman gave me some very helpful suggestions.

Last but not least, I am grateful to my wife, Orna, and my kids, Talia, Uri, and Doron, who, for their own reasons, will be happy to see this book come out in print.

Abbreviations & Acronyms

BBC British Broadcasting Corporation CCS Combined Chiefs of Staff CCTWC Cabinet Committee on the Treatment of War Criminals IMT International Military Tribunal MP member of Parliament OKW high command of the German armed forces POW prisoner of war RAF Royal Air Force SA Sturmabteilung SD Sicherheitsdienst SHAEF Supreme Headquarters, Allied Expeditionary Force SS Schutzstaffel TASS Soviet news agency UNWCC United Nations War Crimes Commission USSR Union of Soviet Socialist Republics, Soviet Union WJC World Jewish Congress WRB War Refugee Board

Prelude to Nuremberg

Introduction

Historical studies on the prosecution of World War II war criminals generally concentrate on the 1945–46 IMT in Nuremberg and the charter that embodied its constitution. In this book I try to demonstrate that, while agreement on a joint Allied policy was reached only after the end of the war, the issue of punishing war criminals was widely discussed throughout most of the war years and entailed a host of diplomatic, military, legal, and moral considerations and the interplay of domestic and world political factors. The historical analysis given here concentrates on the deliberations that went on in Washington, D.C., and London at a time when the Germans were perpetrating their worst crimes. A reconstruction is offered of the prevailing attitudes and constraints that prevented a joint Allied policy from being adopted during the war, while an effort is made to point up the origins of the legal innovations that came to be included in the Nuremberg Charter. It is not the purpose of this book to deal with the Nuremberg judgments and the controversy that followed them or with the war criminals themselves. To a certain extent, the charter contradicted what leading American and British political, bureaucratic, and legal figures had had in mind while the war was raging, but as will become clear, the policy that was finally adopted and that the charter incorporated was an integral part of the development and course of World War II.

Policy makers who dealt with the question of punishing war criminals during World War II operated under the shadow of the failure war crimes trials had proven to be following World War I. At the Paris Peace Conference of 1919, the British had sought the creation of an international court composed of Allied judges who would try all persons accused of having violated the laws and customs of war and the laws of humanity. Eager to establish a new precedent in international law whereby heads of state would be held personally responsible for their country’s criminal actions, David Lloyd George wanted such a tribunal to try Kaiser Wilhelm II for having initiated a war of aggression. The prime minister, however, found himself confronted by an unwilling U.S. president, who doubted that the kaiser could be found personally guilty and who opposed punishing individuals. Woodrow Wilson feared that such a tribunal would create the undesirable precedent of victors acting as both judge and hangman but was also eager to avoid growing resentment among the German people that could drive them into the arms of Communism. Wilson’s secretary of state, Robert Lansing, too, opposed any judicial prosecution of the kaiser or punishments meted out by an international body. Lansing believed that wanting to bring the kaiser to trial had more to do with Lloyd George’s election campaign than with anything else. During the discussions held by the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, established by the Preliminary Peace Conference of Paris in January 1919, Lansing and James Brown Scott, as American representatives, stated that they [knew] of no international statute or convention making a violation of the laws and customs of war—not to speak of the laws of principles of humanity—an international crime, affixing a punishment to it, and declaring the court which has jurisdiction over the offence.¹ In the end, article 227 of the Treaty of Versailles was the result of a compromise between the British and the Americans stands: The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.² Besides having no roots in international legal doctrine the charge against the kaiser was vague and made no mention of his responsibility for initiating an aggressive war.

Moreover, not only did the Allies fail to bring the kaiser to trial—he had found asylum in neutral Holland—but in effect no German citizen was punished for war crimes, despite the fact that the Versailles peace treaty included four articles on punishing war criminals (articles 227–30). Article 228 read, The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.³ According to the provision of the treaty, the German government undertook to hand over to the Allies all persons accused of having committed such acts. A wide gap soon opened between intent and actual practice. On 3 February 1920 the European Allies presented a list of 854 persons they wanted the Germans to surrender, which included Gens. Paul von Hindenburg and Erich Ludendorff, Adm. Alfred von Tirpitz, and former chancellor Theobald von Bethmann Hollweg. (The United States, because of an isolationist Congress, had withdrawn from European politics after the war and thus played no further part in any war crimes program.) German government pressure, however, not only caused the list to be reduced drastically to 45 individuals, but also won approval for those charged to be tried before a German supreme court in Leipzig—a decision on the part of the Allies that was contrary to both the wording and the spirit of the Versailles treaty.

The Leipzig trials, which opened on 23 May 1921, proved a great fiasco as far as the Allies were concerned. The few accused persons who were convicted were not even made to serve their sentences. The British, by this time wishing to strengthen the German government as well as encourage moderate circles of the German public, decided not to turn this issue into a confrontation and instead let this sensitive and potentially explosive matter fade away. For their part, the French and the Belgians, frustrated by the way the trials were conducted, decided to withdraw their observers. On their own, the two countries subsequently began trying hundreds of accused Germans in absentia, a process that was halted only after the signing of the Locarno treaty of 1925.⁴ In the final analysis, international political considerations played a major role in the handling—or more accurately, the nonhandling—of war criminals after World War I.

During World War II British and American officials came to different conclusions about this failure to punish war criminals after World War I. As so often occurs with lessons of history, people draw conclusions that agree with their own aims, priorities, viewpoints, and limits of office. The question of punishing war criminals in World War II was first raised at the very outset of the war, in 1940, by the Polish government-in-exile, but received little attention before Germany’s invasion of the Soviet Union in June 1941, which brought about a dramatic increase in German cruelty. Pressure by the governments-in-exile, particularly the Polish and the Czech, then helped turn around both the United States and Britain. Initially, British and American officials assigned low priority to the issues of war crimes and retribution and preferred to avoid, or at least to postpone, making decisions on punishing war criminals for as long as possible.

Existing international law was unable to give an appropriate response to the crimes committed during World War II. There was need for an agreement among the Big Three Powers to adjust international law to the horrible events of the present war, even to the extent of adding legal innovations that could be applied ex post facto. Conflicting political interests and priorities, however, complicated the formulation of a joint Allied policy toward war criminals. Disagreements between the Soviet Union and the Western powers that had nothing to do with the issue itself entered and confounded the negotiations. The different ways in which each of the great powers actually experienced the war also played a significant role in the overall approach to the issue. A final factor presenting an obstacle to combined legal action was the different legal systems (Anglo-Saxon, Soviet, and Continental).

The existing literature on the prosecution of Nazi war criminals generally gives but scant attention to the contribution of the UNWCC. As we will see, some of the most important notions found in the Nuremberg Charter were first elaborated by this commission. Its establishment had been one of the main operative actions taken by the Western powers during the height of the war, but subsequently both the U.S. State Department and the British Foreign Office—the two departments that were in charge of shaping their respective countries’ policy on war crimes—expended a good deal of effort to neutralize the commission. Determined not to repeat the fiasco of the war criminals trials after World War I, commission members disregarded the UNWCC’s terms of reference and attempted to formulate a comprehensive plan to punish war criminals, compelling both Washington and London to take their proposals into account. Another subject that has been largely ignored concerns the negotiations that Britain and the United States conducted with neutral governments over the matter of providing asylum to war criminals. Both the English-speaking Allies and the neutral governments maneuvered according to developments on the battlefield. The nature of the contacts reflected the importance the two Western powers attached to punishing war criminals, in general, and their determination to prevent them from being given asylum, in particular.

The question of how to treat war criminals became more urgent as the war came to its end. During the war the views of Washington and London converged. Now they drew apart, with Britain generally holding to positions that it had established in the midst of the war and the United States reversing its stand during the last stages of the war. By the time Germany surrendered, the two powers differed widely on the nature of the policy to be adopted. A heated controversy in Washington during the fall and winter of 1944 preceded a comprehensive American plan on punishing German war criminals. Ironically, although Franklin Roosevelt and Winston Churchill may have taken much the same stand on the significant question of how they wanted major war criminals to be treated—summary execution—the policy finally adopted was as far from their conception as could be.

At the end of the war no Allied policy agreed upon by all involved was in place on punishing war criminals. Unlike after World War I, the Americans dominated the way a common Allied policy on punishing war criminals was shaped. Still, geopolitical considerations—especially the importance of integrating the Federal Republic of Germany into the defense system of Western Europe—again soon took the upper hand. It is true that the degree and extent to which war criminals were punished after World War II were much more severe than after World War I; but then, the crimes and atrocities had been that much more horrendous and their perpetrators that much more numerous. Here, too, one may conclude that too many of the notorious World War II war criminals escaped punishment completely while others served only very short sentences following a sweeping policy of parole and clemency. Ironically, the Western powers did not heed the lesson of the Leipzig trials and again empowered German courts to try Germans accused of committing war crimes.

The account offered in this book is designed to illuminate the major aspects of the war criminals issue as they arose in the European theater during World War II. In several instances the issue itself serves as a case study to help clarify other aspects of the war, in particular the tangled relations between the Western powers and—in varying degrees—the Soviet Union, the governments-in-exile, and the neutral governments. Thus, the thrust of the pages that follow is to provide a narrative and accompanying analysis of the complicated process by which the Allies, as the war progressed, arrived at their policy on war crimes, showing why an agreement on the prosecution and punishment of war criminals had to wait until the end of the war and how considerations of realpolitik soon came to dominate the thinking in both Washington and London.

1: Governments-in-Exile Call for Retaliation

THE DEMAND FOR A DECLARATION

Polish citizens were the first to suffer from German oppression, and they experienced some of the worst horrors of the German invaders. Within weeks after the German invasion on 1 September 1939, the Wehrmacht had completed its occupation of Poland. The Soviets were not late in seizing their share, and on 17 September the Red Army entered eastern Poland. On 28 September Poland was partitioned between Germany and the Soviet Union. The same day Warsaw surrendered to the Germans, and several days later fighting ceased. Over 100,000 Polish troops had fallen in the month-long campaign, 133,000 had been wounded, and a million Polish soldiers had been captured by the Germans and the Russians. By the end of October Germany had begun annexing parts of western and northern Poland, including Pomerania, Upper Silesia, a part of Mazovia, and parts of the Lodz, Kraków, and Kielce districts. Almost one-quarter of the entire country was annexed to Germany. The remaining areas of Poland held by Germans were placed under the supervision of a civil administration, called the Generalgouvernement. More than 22 million inhabitants of Poland were now under German occupation; nearly half this number, including about 600,000 Jews, resided in the territories annexed by the Reich. The rest, some 12 million people, including 1.5 million Jews, lived in the Generalgouvernement areas. More than 1 million Poles were deported to the Generalgouvernement from the territories incorporated into Germany. In the area controlled by the Soviets, there were between 5 million and 6 million Poles and 1.2 million Jews.

Germany’s goal was to destroy the Polish nation and to turn the Poles into a slave labor force for the German Reich. In order to achieve this goal, the Germans focused on liquidating the nation’s intellectual, political, spiritual, and economic elites. Poland was turned into a slave country, its inhabitants forced to serve the German economic and military machine: 1,798 labor camps and 136 refugee camps were built, while 2.5 million Poles were sent to work in Germany. Moreover, Poland served the Germans as their main killing ground. For that purpose they built extermination centers and concentration camps. Transit camps for deportees also were used as killing sites. Between 1939 and 1945 6 million people, half of them Jews, lost their lives in Poland through extermination, murder, execution, or starvation or in battles against the Germans.¹

On the day the Red Army entered eastern Poland, the top Polish leaders decided to leave for France through Romania, but they were interned by the Romanian authorities and never reached their destination. On 30 September 1939 President Ignacy Mościcki resigned and nominated as his successor Wladislaw Raczkiewicz, marshal of the senate and president of the World Union of Poles Abroad, who was then in France. The new president appointed Gen. Wladislaw Sikorski, who earlier had been named commander of the Polish army in France, as prime minister. The new government was recognized by the Western Allies as the de jure government of Poland. On 4 January 1940 a military agreement was signed between French prime minister Edouard Daladier and Sikorski that enabled the formation of the Polish armed forces on French soil.²

At the beginning of 1940 the Polish government-in-exile requested both the British and the French governments to condemn Nazi barbarities and to threaten to punish the perpetrators. The Polish leaders also called for making it clear that the Germans would have to compensate for the damages they caused as a result of their violation of international law. British Foreign Office officials opposed the idea. Any such declaration, Sir Orme Sargent, deputy undersecretary of state in the Foreign Office, maintained, would be regarded as mere propaganda. He pointed to the white paper The Treatment of German Nationals in Germany, published shortly after Britain had declared war on Germany.³ This white paper, which dealt with German atrocities against German nationals interned in the Dachau and Buchenwald concentration camps in 1938 and 1939, Sargent argued, was not a success and was largely criticized as being merely stale and tendentious propaganda on our part. He assumed that the same would be said of any reports that Britain would publish on conditions in Poland and Czechoslovakia.⁴ Frank Roberts, then acting first secretary in the Central Department of the Foreign Office, even doubted the accuracy of the reports, which came mainly from Polish and Czech sources. He thought that Britain was not in a position to issue absolutely reliable official statements.⁵ Lack of credence given to reports received from occupied Eastern Europe was to characterize the general attitude of British officials throughout most of the war years. In early 1940, British policy was still characterized by the wish to do nothing that could overly irritate the Germans, although Britain and France had declared war on Germany the previous September. (Indeed, the British refrained from taking any military measures until the spring of 1940.)

Nevertheless, the need to encourage the endurance of the Polish people as well as the government-in-exile was recognized and led the Foreign Office to modify its stand. In mid-February 1940, London agreed in principle to the publication of an Anglo-French-Polish declaration. Eight weeks passed, however, before the statement was actually published. In addition to the lack of fervor among Foreign Office officials, differences over the phraseology of the declaration had to be overcome.⁶ In their first draft the Poles had included a paragraph to the effect that the signatories of the declaration reserved for themselves the right to pursue and punish according to the full force of the law persons of German nationality guilty of having committed acts in flagrant contradiction of the laws and customs of war.⁷ In reaction to British and French reservations, the Poles then proposed a revised draft less controversial: the three signatories desire to make a formal and public protest to the conscience of the world against the action of the German Government whom they must hold responsible for these crimes which cannot remain unpunished.⁸

Well aware of London’s cautious policy at the time, Count Edward Raczyński, the Polish ambassador to Britain, interpreted the debatable paragraph as meaning that any German criminals who remained within Polish jurisdiction after the war would be punished. Sir Alexander Cadogan, the permanent undersecretary in the Foreign Office, disagreed with this limited interpretation. If both the French and the British governments were associated with this declaration, he argued, that would imply something rather more in the nature of action against ‘war criminals’, which had led us into a certain amount of trouble after the last war. Cadogan believed that Britain should not define its attitude in detail.⁹

The Poles meanwhile succeeded in winning French support for their revised draft. Charles Corbin, the French ambassador in London, joined the Polish effort to convince the Foreign Office that the paragraph as it now stood did not imply any undertaking to pursue war criminals after the war. British foreign secretary Earl Halifax was not persuaded. He feared that German propaganda would portray such a commitment as evidence of a British objective to destroy the German people.¹⁰ In regard to a declaration, the Foreign Office was only ready to state that the British, French, and Polish governments must hold the German Government responsible for these crimes, and they reaffirm their determination to right the wrongs inflicted on the Polish people.¹¹

The Poles were forced to give way in the face of London’s determination not to issue a forthright statement. The British War Cabinet was told that the Polish government had intimated that it regarded the proposed declaration as a statement of principle, not a contractual obligation. That is to say, no claim vis-à-vis the Germans would be based on it by either the British or the French governments in the future. The War Cabinet approved the statement, subject to receiving a formal assurance of this reading from the Polish government.¹²

The declaration was published on 18 April 1940. It accused the German government of opening the war against Poland by brutal attacks upon the civilian population of Poland in defiance of the accepted principles of international law. Furthermore, Germany’s acts clearly reveal a policy deliberately aiming at the destruction of the Polish nation. Specific mention was given to the atrocious treatment inflicted on the Jewish community. Berlin was charged with violating the laws of war and the customs of war on land as well as international agreements such as the Fourth International Convention of The Hague of 1907. The concluding sentence, however, which to a great extent was imposed upon the other two signatories, diluted the significance of the declaration. The three Allies, it read, reaffirm the responsibility of Germany for these crimes and their determination to right the wrongs thus inflicted on the Polish people.¹³

Even a much firmer declaration almost certainly would not have caused the Germans to alter their policy. Yet this consideration was not one that guided Foreign Office officials. In addition to Britain’s initial policy not to collide with Germany, the Foreign Office wanted to avoid any undertaking to punish war criminals. It was deemed too problematic and sensitive an issue for London to become entangled in, especially as it had no direct interest in the matter. The failure of the Allies after World War I to implement their threats to punish war criminals only strengthened reservations about making unequivocal obligations at this stage of the new war.

CONTENTION WITHIN WHITEHALL

After the fall of France in June 1940, the Polish government moved to Britain. During the following year relations between Britain and Poland became very close. On 5 August an Anglo-Polish military agreement was signed; Polish forces subsequently fought alongside the British in the Battle of Britain, in Norway, in Africa, and later in Italy, Holland, France, and Germany.¹⁴ At the same time, with Britain left alone to fight a war for survival, the exiled governments recognized that there was no sense in threatening the Germans with reprisals. Nevertheless, the Polish government gave public expression to the Germans’ misdeeds, as did the Czech government, in exile in London since the summer of 1940 but recognized by the British only in July 1941. A joint statement in November 1940 decried the violence and cruelty to which the two countries had been subjected, charging they were unparalleled in human history. The statement pointed to the mass executions and deportations to concentration camps, the expulsion of populations, and the banishment of hundreds and thousands of men and women to forced labor in Germany. A month later the Polish government denounced the German policy of denationalization in Poland.¹⁵

As part of efforts to fortify the morale of the occupied peoples, British statesmen issued sporadic statements to the effect that the Germans would have to pay for their acts. In a broadcast to the French nation on 21 October 1940, for example, Winston Churchill stated that all the crimes of Hitler would bring upon him and upon all who belonged to his system a retribution which many of us will live to see. In a speech in Mansion House toward the end of May 1941 Foreign Secretary Anthony Eden spoke of the time Hitler and his gang would lose the war. Every German, Eden stated, must know and fear that the reckoning will indeed be wide and fierce. Three weeks later, on 22 June, Churchill addressed the question of punishing Nazi collaborators: These quislings, like the Nazi leaders, if not disposed of by their fellow countrymen—which would save trouble—will be delivered by us on the morrow of the victory to the justice of the Allied tribunals.¹⁶ His statement came on a very special occasion, several hours after the beginning of the German invasion of the Soviet Union. Yet warnings such as these should not be regarded as sanctioning any official undertaking on the part of the British government to punish Axis leaders and the perpetrators of atrocities. They were, rather, firm rhetoric, expressions of fury, not statements of operative intentions.

Germany’s invasion of the Soviet Union marked a turning point in the relations between Britain and Poland. Sikorski was quick to realize that London regarded improving its relations with the Soviet Union as a vital interest and that, if necessary, the British would sacrifice their relations with Poland. Whitehall made clear the importance it ascribed to an agreement between the Polish government and the Soviet Union. Disagreement over Poland’s frontiers was the main obstacle to the signing of such a document. The Polish government was determined to preserve its pre-1939 frontiers, whereas Moscow was adamant in its desire to regain the territories it had captured following the Ribbentrop-Molotov agreement. Sikorski, his government wholly dependent on Britain, was compelled to give way to British pressure and to sign some sort of agreement with the Soviet Union. The challenge was to find an equivocal formula that would enable postponement of the clash over Poland’s frontiers. Accordingly, the Soviet government issued a statement that the articles of the Soviet-German treaty of 1939 relative to territorial changes in Poland have lost their validity. The Soviets, furthermore, agreed to the formation in their territory of a Polish army under Polish command, which would be subordinate in operational matters to the supreme command of the USSR. Moscow also took it upon itself to grant amnesty to all Polish citizens who had been deprived of their freedom in the territory of the USSR. The agreement, which was signed on 30 July 1941, brought about Soviet recognition of the Polish government-in-exile. For their part both Britain and the United States separately stated that they did not recognize any territorial changes imposed on Poland after August 1939.¹⁷ Several weeks later the British and the Americans followed the Soviets’ lead and finally decided to recognize the Czech government-in-exile.¹⁸

The Germans, following their attack on the Soviet Union, intensified their atrocities in occupied countries, enacting especially harsh measures against both civilians and soldiers in the Soviet Union. Although continual reports on the Germans’ terrible acts reached London, Foreign Office officials generally treated them with great suspicion. By autumn 1941, however, the Foreign Office had to contend with the growing concern among Cabinet ministers as well as in Parliament about the government’s treatment of the reports of German atrocities. In September Hugh Dalton, Labour MP and minister for economic warfare, called Eden’s attention to the monstrous practice that the Germans had recently introduced of seizing and executing hostages whenever a German was attacked. Dalton well knew that Britain was in no position to deter the Germans. Still, he thought his government should not ignore such acts. He proposed telling the people of Europe that the names of all those connected with the shooting of hostages—from the commander of the occupying forces downward—were being duly noted and, after the war, would be hunted down, tried for the murders now being committed and, if they are convicted, summarily executed. Dalton further suggested encouraging the citizens of occupied countries to record names and incidents that could be useful for judging the criminals after the war. A declaration along these lines, Dalton believed, would do much to sustain the morale of the Allies and to weaken that of the German forces.¹⁹

Foreign Office officials retained their reservations. Describing Dalton as a witch-doctor smelling out the German criminal from one end of Europe to the other, Roger Makins of the Foreign Office Central Department expressed skepticism about the effectiveness of the threats and thought that Britain should not surrender to a desire for revenge or stimulate that desire in other people. The Foreign Office official warned of a repetition of the Hang the Kaiser campaign, maintaining that a commitment to hunt down and try thousands of Germans after the war was premature. Makins also drew his colleagues’ attention to expected legal difficulties, particularly in regard to the question of the responsibility of subordinate officials. He did, though, accept Dalton’s suggestion of encouraging the occupied peoples to record the names of Germans who behave badly and stated that Britain was also keeping a record of them.²⁰ Others rejected even this proposal. Deputy Undersecretary of State Orme Sargent warned his colleagues, Once we authorise such an idea, we are already half way towards being committed to trying the war criminals, and after our experience of the last war we surely are not going to be foolish enough to attempt such a course again.²¹

Eden shared his officials’ general opposition to any commitment to punish war criminals and told Dalton of his own hesitation in threatening vengeance. He reminded Dalton of the long lists of war criminals that had been prepared by the Allies in accordance with the Treaty of Versailles; when the time came to carry out the provisions for trial by Allied courts, Eden recalled, the difficulties that arose seemed insuperable, and therefore the scheme was abandoned. As a result only a limited number of persons were tried by the German supreme court, and no death sentence was imposed. Eden’s lesson was clear: no commitment should be given to hunt down and try thousands of Germans after the war. Revenge should be left for Berlin’s neighbors. Britain should let the matter rest at the compilation of names while leaving our future action to the imagination of the culprits.²²

Eden, however, recognized the growing excitement both in Britain and among the exiled governments over the issue of German atrocities and therefore supported publication of a collective statement by the Allies protesting German action against civilians in the occupied territories. The statement would be somewhat along the lines of the joint Anglo-Franco-Polish declaration of April 1940; that is to say, it would avoid an unambiguous commitment to retribution.²³ On 5 October 1941 the War Cabinet was asked to approve a draft declaration that ended with a vague statement according to which the Allied governments publicly declare that the brutalities which are being committed in the occupied countries are contrary to the dictates of humanity; are a reversion to barbarism; and will meet with retribution, sure, sudden, and complete.²⁴

The foreign secretary, however, discovered that his overcaution was not shared by his colleagues in the War Cabinet. The general view among the ministers was that the proposed declaration should lead to a more definite conclusion. One proposal spoke of making it clear that steps were being taken to compile careful lists not only of the leaders who were responsible for German policy in this matter, but also of those who acted foremost in aiding and abetting in these atrocities.²⁵ In light of the ministers’ criticism, the Foreign Office was quick to present the Cabinet with a new draft. This time the threat of vengeance was spelled out more clearly:

We therefore publicly declare that the brutalities which are being committed in the occupied countries are contrary to the dictates of humanity; are a reversion to barbarism; and will meet with sure retribution. To this end we are united in our resolve to win the freedom of the oppressed peoples and to execute justice. The methods of oppression and terror used by Hitler are such that many people, including the Germans and Italians, are ignorant of the full facts. When these things are known, world opinion will not allow the criminals to escape just punishment for their crimes. The facts are being put on record so that in due time the world may pronounce its judgment. With victory will come retribution.²⁶

Dissatisfied even with the new draft, Dalton suggested including explicit reference to the fact that lists were being compiled of those guilty of the brutalities. Eden opposed the idea but suggested a compromise that would refer to the compilation of such lists in British propaganda. The War Cabinet approved the draft declaration and authorized the foreign secretary to arrange for its circulation among the Dominions and the Allied governments.²⁷ The desire by Foreign Office officials to publish a mild statement and their giving way to external pressure would be repeated in the future.

At the time Foreign Office officials were preparing the revised draft, questions about German war crimes were being asked in Parliament. On 7 October Captain William Strickland (Conservative) asked the foreign secretary whether he intended to make an announcement that those responsible for murder, cruelty and oppression would be brought to trial and punished for their offenses. Geofry Madner (Labour) wanted to know whether the government intended to compile lists of those responsible for committing crimes, while James Walker (Labour) referred to the seizing and executing of hostages by the Germans and asked whether the foreign secretary could guarantee that those murderers would be brought to trial after the war and made to suffer the penalties appropriate to their crimes.

Undersecretary of State Richard K. Law replied briefly that the subject was under consideration and that the foreign secretary was approaching the Allies on the issue. To Philip Noel-Baker (Labour), who wanted to know whether the government was already keeping lists, Law replied vaguely to the effect that these actions are not passing unnoticed, either in the countries where they occur or in this country. The next day Sir Waldron Smithers (Conservative) took the occasion of Eden’s presence in the Commons to ask whether Whitehall had informed the German government of the steps it had taken to avenge the brutal treatment now being meted out to the inhabitants of occupied Europe. Eden avoided giving a direct answer and referred Sir Waldron to the obscure statement given by Law the previous day. The foreign secretary assured Sir Waldron that note was being taken of these terrible things, and that they will not be forgotten.²⁸

In a letter to R. M. A. Hankey, the former secretary to the Cabinet, Eden outlined the considerations that guided his dealing with German atrocities. Hankey, who had been closely involved in the proceedings of the Paris Peace Conference, had warned Eden not to repeat the mistakes of the aftermath of World War I.²⁹ The foreign secretary said he shared Hankey’s objections to commitments; however, he pointed out that recent reports of the shooting of hostages in Norway, France, Czechoslovakia, Yugoslavia, and Greece had stirred up a lot of sentiment in Britain as well as among Britain’s allies. The proposed declaration, therefore, aimed to comfort Britain’s allies and to strengthen the endurance of the peoples concerned. Hankey was told of an Allied plan to publish a declaration that would go a good deal further than ours. Unless an agreement was reached on the inoffensive declaration proposed by the Foreign Office, Eden explained, we are likely to find the Allies coming out with something far more embarrassing.³⁰

The foreign secretary referred to a Czech-Polish initiative to publish a joint solemn warning. Their draft resolution condemned German atrocities committed in occupied territory and warned that all Germans guilty of offenses against common or international law would be punished, as would both those who gave illegal orders and those who carried them out. Britain and the United States were to be called on to associate themselves with the statement. British Foreign Office officials, however, told the Czechs and the Poles of London’s proposed statement and asked them to hold up their initiative.³¹ On 21 October, three weeks after the Cabinet had approved the Foreign Office draft, the latter finally delivered it to Britain’s allies, including the United States and the Soviet Union.³² The delay in sending the draft was another demonstration of the little importance that the Foreign Office ascribed to the war crimes issue.

Four days later, on 25 October, the British were faced with an unexpected move by the ostensibly neutral United States. Washington informed London about a statement President Franklin D. Roosevelt was going to issue in a few hours condemning the execution of innocent hostages and warning those collaborating with Hitler or trying to appease him. Washington referred to reports of the shooting on