Saturday, 3 May 2014

Could the Nazis have tried U.S. citizens for lynchings?

President Franklin Roosevelt and Secretary of War Henry L. Simpson

Below is a lengthy extract from a Simpson memo to Roosevelt regarding the infamous Morgenthau Plan, in which he makes an interesting analogy regarding the proposed plans to try Germans for crimes against other Germans: 

Memorandum for the President
September 9, 1944
Our discussions relate to a matter of method entirely; our objective is the same. It is not a question of a soft treatment of Germany or a harsh treatment of Germany. We are all trying to devise protection against recurrence by Germany of her attempts to dominate the world. We differ as to method. The fundamental remedy of Mr. Morgenthau is to provide that the industry of Germany shall be substantially obliterated. Although expressed only in terms of the Ruhr, the fact of the matter is the is the Ruhr and the adjacent territories which Mr. Morgenthau would include in his program constitute, particularly after the amputations that are proposed, the core of German industry. His proposition is
"the total destruction of the whole German armament industry and the removal or destruction of other key industries which are basic to military strength." 
In speaking of the Ruhr and surrounding industrial areas, he says:
"This area should not only be stripped of all presently existing industries but so weakened and controlled that it cannot in the foreseeable future become an industrial area—all industrial plants and equipment not destroyed by military action shall either be completely dismantled or removed from the area or completely destroyed, all equipment shall be removed from the mines and the mines shall be thoroughly wrecked."
I am unalterably opposed to such a program for the reasons given in my memorandum dated September 5 which is already before the President. I do not think that the reasons there stated need again be elaborated. In substance, my point is that these resources constitute a natural and necessary asset for the productivity of Europe. In a period when the world is suffering from destruction and from want of production, the concept of the total obliteration of these values is to my mind wholly wrong. My insistence is that these assets be conserved and made available for the benefit of the whole of Europe, including particularly Great Britain. The in internationalization of the Ruhr or the trusteeship of its products—I am not prepared at the moment to discuss details of method—constitutes a treatment of the problem in accord with the needs and interests of the world. To argue that we are incapable of sustained effort to control such wealth within proper channels is to destroy any hope for the future of the world. I believe that the education furnished us by the Germans in two world wars, plus the continuity of interest which such a trusteeship would stimulate is sufficient insurance that we can be trusted to deal with the problem. The unnatural destruction of this industry would, on the other hand, be so certain, in my judgment, to provoke sympathy for the Germans that we would create friends both in this country and abroad for the Germans, whereas now most of the peoples of the world are thoroughly antipathetic to them.
The other fundamental point upon which I feel we differ is the matter of the trial and punishment of those Germans who are responsible for crimes and depredations. Under the plan proposed by Mr. Morgenthau, the so-called arch-criminals shall be put to death by the military without provision for any trial and upon mere identification after apprehension. The method of dealing with these and other criminals requires careful thought and a well-defined procedure. Such procedure must embody, in my judgment, at least the rudimentary aspects of the Bill of Rights, namely, notification to the accused of the charge, the right to be heard and, within reasonable limits, to call witnesses in his defense. I do not mean to favor the institution of state trials or to introduce any cumbersome machinery but the very punishment of these men in a dignified manner consistent with the advance of civilization, will have all the greater effect upon posterity. Furthermore, it will afford the most effective way of making a record of the Allies to terminate the system and prevent its recurrence.
I am disposed to believe that at least as to the chief Nazi officials, we should participate in an international tribunal constituted to try them. They should be charged with offences against the laws of the rules of ear in that they have committed wanton and unnecessary cruelties in connection with the prosecution of the war. This law of the Rules of War has been upheld by our own Supreme Court and will be the basis of judicial action against the Nazis.
Even though these offences have not been committed against our troops, I feel the that our moral position is better if we take our share in their conviction. Other war criminals who have committed crimes in subjugated territory should be returned in accordance with the Moscow Declaration to those territories for trial by national military commissions having jurisdiction of the offence under the same Rules of War. I have great difficulty in finding any means whereby military commissions may try and convict those responsible for excesses committed within Germany both before and during the war which have no relation to the conduct of the war. I would be prepared to construe broadly what constituted a violation of the Rules of War but there is a certain field in which I fear that external courts cannot move. Such courts would be without jurisdiction in precisely the same way that any foreign court would be without jurisdiction to try those who were guilty of, or condoned, lynching in our own country.
The above are the two main points with which I differ from the proposed program submitted by the Secretary of the Treasury.

The instigators of the Nuremberg trial found their means to try Germans for crimes against Germans with Article 6C in the London Charter. And with its "common plan and conspiracy" clause, in one fell swoop they had ensnared everyone in anyway connected with the regime of the Third Reich as part of the alleged conspiracies of "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 ..."

Jewish-American lawyer Prof. Bernard D. Meltzer, who was himself a prosecutor during the subsequent Nuremberg Military tribunals, wrote many years later: 
"Article 6 C of the Charter drafted in the London Agreement was in a way formulated exclusively with the thought of prosecuting the Nazi leaders held responsible for the atrocities committed against the Jewish people and other targeted groups both inside and outside Germany." 

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