Scott Smith wrote:The only way to have approximated a fair trial for real warcrimes would have been to have neutral nations adjudicate based on existing international agreements and standards, not Allied whims and propaganda.
Which nations would you have?
Neutral nations, as I said. Sweden, Switzerland, Spain, and Turkey were neutral and they remained sovereign in 1945. A panel of judges could have been appointed from each, especially assuming a negotiated peace, where holding warcrimes trials was a major Allied demand and the details worked out by agreement (not just among the Victors as the London treaty).
But if it was all due to international agreements and standards, then what happens to your often stated premise that "sovereign states can do as they please" argument?
The basis of this prosecution would be that Germans (and Allied personnel) were violating THEIR OWN laws by not following prior treaty agreements, such as with respect to the treatment of prisoners-of-war. There would be no case with the Soviet POWs since their government did not sign
the Geneva convention, nor would there be any case with respect to the equally poor treatment of German POWs by the Soviets because of reciprocity. But IF the Soviets had signed the Geneva convention then they might have been able to excuse their poor treatment of German POWs using a tu quoque
argument that the Germans mistreated their Soviet POWs. Of course, if the Germans could then argue that the mistreatment of the Soviet POWs, most of which occurred by failing to prepare adequately for the winter of 1941-42 and was therefore negligent but not intentional, then the Soviets might have a harder time with their case. Nobody has a case if no one signed an agreement or followed it.
It is remarkable how you vehemently protest, say, on Nuremberg, arguing against international law vis-a-vis sovereignty of nation states, but now you advocate "neutral nations" to "adjudicate" on "international agreements and standards".
"International Law" is a misnomer. There is no such thing. It is an impossibility. If you had international-law then you would have no nation-states; they would be vassals or member-states, similar to each of the United States, which are subject to Federal sovereignty. The basis for all of what we call International Law is treaties signed by sovereign states (or dictated de facto to weaker but technically still sovereign nation-states by hegemonic superpowers).
Why is this so damned hard for everyone to understand?
No treaties--no international law. And sovereign states can (and do) break treaties; it is one of the features of true sovereignty. Their peers (other sovereign states) might not like this and even declare war, enact economic or other sanctions, complain, or just do nothing, but the fact remains. The sovereignty of the law comes from the Sovereign not from some phony international congress of ambassadors like the UN or from a gang of nations who are in an Alliance. In the USA the supreme sovereignty resides in the Constitution but in Nazi Germany it was ultimately Hitler. So if Göring (Hitler's lawful successor) ordered British POWs shot for trying to escape he was saying that he would interpret the Geneva convention in that way and he was within his rights to do so. Some general or other commandant might not have been within that right, however. In the USA a colonel shooting prisoners would be on thin ice too unless he had the authority of the government behind him, which might mean an Executive Order or an Act of Congress, or some other official interpretation of the law in effect. Otherwise, a treaty is presumed to be the supreme law of the land, whether the military brass like it or not.
Would your neutral states, which would be interesting to read which ones and how many, and how their legal/judicial systems (assuming you feel they will use their own judges) would accomplish the goal? Or the legal system they would use.
The details could be worked out in the peace negotiations. Having no superpower to arbitrate a peace agreement (like Teddy Roosevelt who arbitated the end of the Russo-Japanese war) meant that a negotiated peace would be that much harder to achieve. It would have been almost impossible to negotiate a peace with Germany and still keep the Allied coalition together, or at least with the Soviet Union on the same page. (That is why Messrs. Winnie and Franklin adopted the Unconditional Surrender plank to begin with, to keep the Soviet Union from thinking about a separate peace with Germany. They wanted to keep eminently-expendable Slavs hammering away at German lines for as long as possible.) Anyway, long story short--FDR pissed away the American nation's chance to arbitrate a fair (and therefore relatively lasting) peace agreement by taking Albion's side in a war that we had no legitimate national interest Intervening in.
(I would argue that the Anglophile plutocracy, the New Dealers and the Zionists wanted American entry into the war. Both political parties were for the war in 1940, although they claimed to stand for peace. And I would argue that these interests were able to cow with fear-propaganda the 80% of Americans who didn't want Intervention in another European war. In 1938, Americans were on such edge from emotional mass-media management that we even went nuts over a fictional invasion from Mars on the radio. But that is another story.)
Do they supply the prosecution? As well as the defense?
I would say that if the Allies are the ones wanting to press a case they could supply the prosecution but they would have to convince neutral judges from neutral countries that are acceptable to BOTH sides. The defense might be attorneys hired from neutral nations or even citizens from the former Allied enemy, but to use German attorneys when they are subjects of the same occupying power is absurd. The spook agencies of the Allies had the ability to select whatever evidence they wanted and the Germans were seldom able to contest its veracity or anything else. I have already mentioned that only in the Dönitz case was the defense even allowed to make a tu quoque
argument. So if the Germans shot somebody they could not argue at Nuremberg that the Allies did the same under the same circumstances--not because it wasn't true but because it wasn't admissible. The prosecution wasn't on trial; in fact they were the trial. They were judging the defeating enemy by one Mickey Mouse standard and didn't have to justify their own brutality. Obviously an international court (comprised of neutrals) would have to make some resources available to the defeated in Discovery so that they could legitimately present evidence for the defense. Every OSS report and every propaganda slogan submitted by the Soviets was "evidence" at Nuremberg. The defense had no right of Discovery and sometimes not even to see documents that were submitted as evidence. The accused were seldom allowed to confront their accusers. Hearsay was evidence at Nuremberg if the prosecution liked it.
(Btw, I have ordered the microfilm of the Soviet affidavits on Human Soap from the National Archives. The affidavits of Neely and Witton are at least in English. Other stuff is in German, Polish, and Russian, but we have translations of Mazur's story already and Colonel Smirnov's arguments anyway.)
Or do the Allied countries get to prosecute (as happened at Nuremberg) while the German defendants be allowed to choose counsel (as happened at Nuremberg)?
See above. The accused did not get to choose their counsel except from German attorneys living in an occupied country, many of whom were from Eastern Germany or their families and might be subject to deportation to the Soviet Sector. They could not hired attorneys from neutral countries of from Anglo-Saxon countries familiar with their own jurisprudence.
Is your complaint the judges?
That and a lot more. For example, T-4 was not against German law assuming that it was authorized by Hitler and the Chancellery. Killing German Jews as "traitors" or just because they wore beards might have been a crime against humanity but unless it can be shown to have been illegal at the time then it was not legally a crime. Murder was illegal even in Nazi Germany, however, so a perpetrator would have to show direct government authority or such killing is simply murder. For example, killing in war is legal and is therefore not murder. That is because the State is sovereign and says it is. The capacity to declare war is one of the core elements of sovereignty. Now, Poland could press a case against Germany for killing her citizens but then Germany might not extradite the accused. Settling such accounts could have been the basis of a negotiated peace treaty.
A peace treaty could even stipulate regime-change as a basis of the peace if the negotiating strength of one side were very strong. All the Allies would have to do is win some battles and drop their silly Unconditional Surrender plank. The diplomatic possibilities are endless if you have a strong negotiating position. The Allied position was compromised somewhat because they wanted to keep Soviet cannon-fodder available for as along as possible, as Stalin clearly understood. Churchill's attempt to display massive force just before Yalta is how that little tidbit came about. But anyway, turning a conflict into a Crusade only hardens the opposition and lengthens the war as the enemy will take increasingly desperate measures even if he knows he can't win.
For example, if Germany wasn't being fire-bombed there would have been no need to work 100 thousand prisoners to death digging bombproof tunnels to make the 5 thousand V-2 rockets hoped to break the Allied strategic terror. Your government would say that 100 thousand of the enemy dead in the saltmines is "worth it" when balanced against 600 thousand Germans killed in the bombing raids. Indeed, they would hope to kill 600 thousand more of the enemy when the missiles were actually fired. Was General Kammler a warcriminal because he supervised this draconian and calculated brutality? I don't think so--because it was thought to be a "military necessity," just like dropping the atomic bomb. We did not of course need to work incarcerated Japanese-American "enemies" to death to achieve the Manhattan Project because we were never under the threat of bombing. Were Kammler's actions brutal and inhumane? Yes, definitely. It was also a "crime against humanity." But it was not against the law (because U.S. and British POWs were not used mostly). And it would be no more lawless if prosecuted by a local regime imposed by the Victors. We can ban forced-labor, landmines, nuclear weapons, or even crossbows of a strength sufficient to pierce the plate-armor of knights on horseback, but to impose such rules on defeated nations after the fact and not even hold ourselves to the same standard is simple hypocritical nonsense.
Let’s say that no matter how generous the peace offer Hitler wouldn’t budge and went down in Berlin never having come to terms with the enemy. Then the Victors should have at least recruited neutral nations to hold an impartial court where existing international agreements were supposedly violated by the defeated enemy. In this case the accused could use tu quoque
arguments so that the court holds then to the same standard as that of the enemy, but the court would simply have no jurisdiction to force the Victors to put their own on trial for the things they accused the enemy of.
Nuremberg, however, was a rotten farce that actually retards international relations and legitimates the bullying of coalitions of superpowers. This really is not so hard to understand.