Putin's War Russian Genocide - the outtakes V

While I’m reworking our book with Phil, I might post some fragments.

Remember that in 1943 the idea was to send Germans back to countries they had committed crimes in, to face local justice.

Lemkin worked on the legal documents with many eminent or in the Soviet case, notorious, lawyers under these lead lawyers:

·      Jackson, Roosevelt New Deal judicial ally – chief US prosecutor at Nuremberg trials – overshadowed the US judge, Francis Biddle,[1]  

·      Robert Falco, Vichy dismissed French Jewish appeals court judge, future Cours De Cassation judge  – Nuremberg judge (alternate to de Vabres),

·      Iona Nikitchenko, Soviet military lawyer, notorious show trial ‘judge’, Soviet Supreme Court -  – Nuremberg judge

in preparing the legal basis for war crimes trials.[2]

These three lawyers were then prosecutors (Jackson) or judges (Falco, Nitchenko) at the trials themselves, which raises the issue of impartiality.

Nitchenko himself declared before the trials:

"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 whole idea is to secure quick and just punishment for the crime.".^[3]

Note the Crimea reference here, this is a reference in connection to the (in)famous February 1945 ‘Yalta’ conference between Roosevelt (dying), Churchill and Stalin. Crimea, bloodlands.

 in Ukraine. ^[4] Jackson was supposedly appalled at Nikitchenko’s approach to justice… but himself served as a prosecutor based on the basis of a charter he had prepared. Soviet show trial ‘justice’ mixed with American justice.[5] The Soviets wanted a trial wanted it to be a show-trail, as in result known and proceedings staged. I would note that the majority of lawyers, including judges involved in the Nuremberg trials were civilians lawyers but the military lawyer role was significant, especially on the Soviet side.[6] The US pushed back on this with the French complaining about using ‘Anglo-Saxon’ legal concepts in framing any trial.[7] The British lawyers, surprisingly unsurprisingly, were sceptical about the legal basis for a trial instead of a summary rounding up and shooting.  The British eventually got round to the idea of individual responsibility after full trials, the French said there was no legal basis for it, even if desirable morally and politically.[8]

But let’s go back to the London Charter itself and the Agreement behind it.

The London Agreement dealt with the problem of those whose crimes spanned borders. For instance, while a Hans Frank might have been particularly murderous in Poland, his activities were not limited to Poland. Though I would prefer that he had been given a trial in a ruined Warsaw rather than in Nuremberg.

Nevertheless, ana framer. An ‘International Military Tribunal’ (IMT) was foreseen with arrest and extradition obligations – authority–but countries who had their hands on criminals could try them locally if they could and chose to under Articles 1, 3, 4 and 6.

On the surface in the Moscow Declaration and London Agreement there was no great change in rules allowing national prosecution of captured enemies who had infringed national law  which might include violations under the Hague Conventions if codified in national laws including military rules and manuals.[9]

We have already seen prosecution for  ‘violating of the laws and customs of war’ appearing in Article 228 of the Versailles Treaty. However the German courts had been unable to apply the idea of the breach of uncodified laws and customs of war – a revolutionary concept at that time as already pointed out.[10] The London Charter would then reintroduce the concept of individual responsibility for crimes which had not been crimes under the laws of the accused state or even of the affected state. The London Charter did this much more clearly than the Versailles Treaty – the theoretical work of previous decades had not gone to nothing. Lawyers need to build frameworks and we should be building new ones during and after the Ukrainian war.

The London Charter, same signatories, implemented the London Agreement with procedures and charges for the accused: ‘for the just and prompt trial and punishment of the major war criminals of the European Axis.’ (Article 1)

So… the London Agreement created an international military tribunal and then the Charter laid down what war criminals would be charged with.

. This is the case with the modern International Criminal Court which does not replace properly functioning and willing national courts. The key elements of law are in Article 6 of the London Charter:

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a)       Crimes , which covers crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b)       War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to Wave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c)        Crimes , war crimes (violations of Hague and Geneva law), crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.[11]

I draw your attention to  and culpability for conspirators in these key elements:

·                Individual responsibility for crimes which were not domestic crimes but came under international laws of war and custom– something which the German court in the Leipzig Trials could not fully implement;

·                The first crime(s) mentioned is against peace - if war of aggression was the crime of crimes, then how did the Soviet Union end up with larger territory after the war it had started, particularly say… Lwów.[12]

·                Wanton destruction gives a nice whatabout for massive Allied bombing activities as has been pointed out on every tiresome forum by pimpled proto-Nazis as well as by the less pimpled Nazi-friendly liar David Irving.[13]

·                crimes. Genocide is not named. Article 6 (c) on crimes against humanity is an unhappy word jumble;

·                Command responsibility is clearly laid out.[14] 

Each country would receive a judge and alternate at the trials under Article 2.[15]

 where the Holocaust disappears among other atrocities. Two very important additional rules were: ‘The official position of defendants, whether as Heads of State or responsible  that heads of state and officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment’ (article 7); and ‘the fact that the Defendant acted pursuant to order of his Government or of a alike were not immune to punishment if fulfilling their duties (Article 7) and that superior shall not free him from responsibility, but may be considered in mitigation oforders could only mitigate punishment if the Tribunal determines that justice so requires’ (article but not eliminate responsibility (Article 8).

The Western Allies had obviously taken notes of the errors, problems and defences raised in the Leipzig Trials. Nazi brutality had to some degree broken the legal thinking and practise moulds based around state sovereignty and limited responsibility of individuals for international actions.

With these issues settled, there was the question of who would be tried. France, Italy, Austria and Germany lay fully or partly within the areas of Western occupation, if France can be considered occupied, and most of the top level German (including Austrian) war criminals had been smart enough to be captured by Western forces if not managing to escape. The UK and USA were happy to share trial and punishment of these persons with the Soviets and the French. Polish readers will be irritated at the lack of Polish representation – a very complicated question connected with the post Barbarossa new alliance and especially post-Katyn minimalization of Polish political importance, as signified by the Yalta meeting which apart from deciding on war criminals, also carved up Poland and Germany.

France was now (again) an ally and proudly would not countenance trial of its nationals who were war criminals and collaborators. New communist regimes in Poland, Yugoslavia and Hungary were happy to try and punish anybody they could get their hands on – Hans Frank would have been a valuable prize for the Poland but was saved from a Dirlewangering or a much quicker Polish trial by surrendering to a US officer after fleeing Poland. His 10.000 (!) pages of diaries were of immense worth at the trials. Italian war criminals had been removed from the list of potential defendants at Nuremberg after Mussolini’s lynching – and Italy was a potential Western ally so its future government was ‘trusted’ to carry out appropriate trials similarly to France.[16] Maybe a Belarussian government could carry out its own trials after a fall of Putin but this would be fraught with the difficulties I have described.[17]

That left only Germans in mostly Western hands. Admiral Horthy of Hungary who had been arrested by the Americans was quietly dropped from a list of accused.[18] There were significant arguments over the list of potential defendants, arising from differing beliefs on the source and basis of Nazi evil which continue today, some blaming only Hitler, or at most his closest allies like Himmler, Goebbels and Göring or extending to old German, Junker, power structures with oligarch businessmen like Alfried Krupp and generals, especially of the ‘von’ variant.[19] However there was huge pushback on this from conservative minded US and British politicians and this reached ridiculous levels with enormous consequences including the vast majority of businessmen and military leaders directly complicit in war crimes, including slave master general Albert Speer who had the blood of hundreds of thousands of slave workers on his hands, if not millions via his armaments, escaping appropriate punishments.[20] Only after half a century later  have we finally begun to come to terms with the legal, economic and moral consequences of not thoroughly punishing the inner circles of Nazi power.[21] The complicated Nazi power structure was opaque for the outside – similarly to the mafia state structures in Russia.

If Putin is removed from power, the entire structure around him, including every single oligarch by definition, must be removed, with life or long imprisonment, as well – and confiscation of all wealth. Not just Putin or his chekist inner circle.[22] The US mostly reshaped German business but there were some healthy foundations unlike the mafia kleptocratic structures of Russia which little resemble even the Reichswerke Hermann Göring or the SS industrial structures.[23] I would note that the later Nazi industrial structures, including those created by the ‘miracle’ slave worker Speer were based around the rapine of resources, slave labor and conquest.[24] We are lucky that there was no relapse into Germany militarism and Henry Morgenthau Jr’s plan to turn Germany into de-industrialized farmland wasn’t necessary.[25] I would advocate the proper industrialization, technologization and development of Russia into a rich, prosperous country where wealth is not built on theft and rape of natural resources.  Russia’s thieves can’t even claim to be genius war criminals on the level of Krupp or Ferdinand Porsche.[26]

Germany doesn’t need Polish lubensraum (living space), Poland doesn’t need Kresy (Ukraine and Belarus) and Russia shouldn’t need Мала Росія (Little Russia, says it all).[27] A low productive empire with a low technological base needs to expand, loot and rape – Russia’s economic structure needs changing. Germany is a prime example of lubensraum empire being replaced by development, technology and capital intensification within borders. Japan similarly.

[1] Jackson, too often referred to in the context of the trials as Justice Jackson, becomes the US judge in narrative, but he was the US Chief Counsel (prosecutor).

[2] The grim figure of Nikitchenko appears throughout Sands, East West. Falco was not nearly as senior as his colleagues but the French legal system and its senior judges had Vichy collaboration issues - Richard H. Weisberg, Vichy Law and the Holocaust in France (New York/Abingdon: Routledge, 2013). Telford Taylor, counsel for the prosecution, brigadier general in the US army wrote his The Anatomy of the Nuremberg Trials: A Personal Memoir (New York: Skyhorse publishing, 2013) on the experience of the trials as a major participant.

[3] Telford Taylor, “The Nuremberg Trials,” Columbia Law Review 55, no. 4 (1955): pp. 499, https://doi.org/10.2307/1119814 citing George A. Finch, “International Conference on Military Trials, London, 1945. (Department of State Publication 3080.) Washington: Government Printing Office, 1949. Pp. XX, 441. $1.75.,” American Journal of International Law 43, no. 4 (1949): pp. 835-836, https://doi.org/10.2307/2193307. Nitchenko later dissented against the acquittal of Hans Fritzsche , Nazi radio flunky. Carsten Stahn, “Putting Criminal Accountability into Perspective: Russia, Ukraine and the ICC,” Universiteit Leiden, March 18, 2022, https://www.leidenlawblog.nl/articles/putting-criminal-accountability-into-perspective-russia-ukraine-and-the-icc.. I agree with Nitchekno’s assertion that: “Propaganda was invariably a factor in preparing and conducting acts of aggression”. As it was and is in Ukraine. On Nitchenko being sent to London to prepare stage trials, Robertson, Crimes, 308.  Telford Taylor, ‘The Nuremberg Trials’, Columbia Law Review 55, no. 4 (1955): 488–525, https://doi.org/10.2307/1119814. Which references George A. Finch, ‘International Conference on Military Trials’, American Journal of International Law 43, no. 4 (1945): 835–36, https://doi.org/10.2307/2193307.

[4] Yalta as a word evokes anger amongst many Slavs and Balts, seeSerhii Plokhy, Yalta: The Price of Peace (London: Viking, 2011)..

[5] The Nazis were guilty and too many escaped punishment, regardless of procedural issues.

[6] Overy, From Nuremberg, 6.

[7] Ibid., 6.

[8] Norbert Ehrenfreund, The Nuremberg Legacy: How The Nazi War Crimes Trials Changed The Course Of History (New York: Palgrave Macmillan, 2007), 270.

[9] See Mullins, The Leipzig Trials, 51-173 for the details on crimes.

[10] States had generally charged individuals with crimes under their own regime, i.e. murder committed on their territory against the their citizens – with the development of law following the examples given.

[11] This gives four possible charges:

Participation in a common plan or conspiracy for the accomplishment of a crime against peace

Planning, initiating and waging wars of aggression and other crimes against peace

Participating in war crimes

Crimes against humanity

This is a result of splitting (a) into two parts. In practise this occurred with some defendants who weren’t charged with crimes against peace. All were charged with conspiracy. Yes I know it doesn’t make sense, blame the Soviet lawyers who wanted a grand conspiracy of the type they concocted in their Moscow show trials.

[12] It’s good that this happened because Lviv is now Ukrainian. But 1939 saw a Nazi-Soviet war of aggression against Poland. Jackson at Soviet insistence kept secret the secret parts of the Molotov-Ribbentrop Pact of August 1939 – with the partition of Poland. Finland was also a victim of Soviet aggression. Robertson, Crimes, 310. This would have been prosecution gold. Senior Soviet lawyers and their bosses seemed to have been extremely worried about the details of their pact with Hitler emerging throughout the trial, see Francine Hirsch, “The Soviets at Nuremberg,”.

[13] Richard J. Evans, in Lying about Hitler: History, Holocaust, and the David Irving Trial (New York: Basic books, 2002). Russian wanton destruction of the Reich and occupied territories including mass deportation is also a whatabout defense but raised less often by the 4Chan keyboard Nazi and definitely not by the Putin friendly tankie..

[14] Ehrenfreund, The Nuremberg Legacy, 121, states “Nuremberg advanced the modern human rights movement by A single master stroke: the invention of “crimes against humanity.” I don’t know if invention is the right phrase. As he states rights became ‘recognized’. That’s a difference with inventing them. I can grant my child the right to drive my car but he wasn’t born with that right. A born, existing, right he has is to not be murdered because he is a Pole – and that’s not something that the London Charter ‘invented’. Same with my grandfather’s right not to be tortured in 1943.  Robertson, Crimes, 301, identifies instead that there are no ‘rights’ without remedies. The persons currently taking the UK outside the jurisdiction of the ECHR Court know this.

[15] The full list was –

United Kingdom: Geoffrey Lawrence (president) and Norman Birkett (alternate)

United States: Francis Biddle (judge) and John Parker (alternate)

France: Henri de Vabres (judge) and Robert Falco (alternate)

Soviet Union: Iona Nikitchenko (judge) and Alexander Volchkov (alternate)

[16] Overy, From Nuremberg, 7-9.

[17] See note on Belarussians seeking justice against Lukashenko in Germany via universal jurisdiction.

[18] Ibid.

[19] Ibid.

[20] Ibid. Also Dan Van der Vat, The Good Nazi: The Life and Lies of Albert Speer (Boston: Mariner Books, Houghton Mifflin, 1999).

[21] David de Jong, Nazi Billionaires: The Dark History of Germany's Wealthiest Dynasties (Boston: Mariner Books, 2022),  Henry Ashby Turner, German Big Business and The Rise of Hitler (New York: Oxford Univ. Press, 1987) and Tom Bower, Blind Eye to Murder Britain, America and the Purging of Nazi Germany ; a Pledge Betrayed (London: Deutsch, 1981).

[22] Anatol Lieven, “Inside Putin's Circle - the Real Russian Elite,” Financial Times, March 11, 2022, https://www.ft.com/content/503fb110-f91e-4bed-b6dc-0d09582dd007.

[23] “Himmler was a Nazi MBA basing his ventures on Fordism.”, Philip Blood, private discussion, 21 June 2022.  SS Obergruppenführer Oswald Pohl, head of concentration camp administration and the industry based around them, would be hung unlike others– see also Ehrenfreund, The Nuremberg Legacy, 98-101 for the trials of industrialists.

[24] The major pre-war companies survived the war for reasons and are the power-houses of German industry nowadays. Waiting for a list of Russian companies similar in stature to IG Farben, Bosch, Blaupunkt, Henschel, Junkers, Messerschmitt, Daimler-Benz, Porsche or Krupp. Fossil-fuel pirates and financiers excluded. As an example, the founder of Putin’s Dirlewanger Brigade, the Wagner Group, so de facto Putin’s Himmler, Yevgeny Prigozhin runs bad restaurants and a troll farm, the EU sanctioned Internet Research Agency. Prizgozhin also provides terrible food to Russian soldiers via crooked tenders. Himmler was a better businessman and the SS ate well or at least better than the slave soldiers in the Russian army. George Grylls, “‘Putin’s Chef’ Yevgeny Prigozhin Oversees Wagner Mercenaries in Donbas,” The Times, April 18, 2022.

[25] Ehrenfreund, The Nuremberg Legacy, 7. Morgenthau, US Secretary of the Treasury, key New Deal and lend-lease architect, Jewish, was also opposed to any trials and wanted German politicians, generals and businessman summarily executed.

[26] I underline that Krupp, Porsche and the other titans of German industry were terrible people deserving of more punishment. Nils Klawitter, “Porsche's Past: The Dark Pre-History Of The World's Favorite Sports Car,” Der Spiegel (Der Spiegel, October 1, 2009), https://www.spiegel.de/international/germany/porsche-s-past-the-dark-pre-history-of-the-world-s-favorite-sports-car-a-652371.html. Porsche’s post-war legal kidnapping by the French government is darkly humorous.

[27] In his infamous Pravda article in 2021, Putin refers to Ukraine as Little Russia, because of course. Vladimir Impaler Putin, “Article by Vladimir Putin ‘on the Historical Unity of Russians and Ukrainians,’” President of Russia, July 12, 2021, http://en.kremlin.ru/events/president/news/66181.

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7 May 2023 updated cover