§ 2.45 p.m.
§ THE MARQUESS OF READING rose to move to resolve, That in view of the length of time which has elapsed since their capture and of the circumstances of their detention since that date, the proposed trial of certain senior German general officers as war criminals is not in accordance with the principles of British justice, and that the proceedings should therefore be discontinued. The noble Marquess said: My Lords, I can claim neither novelty nor originality for the subject of the Motion which is before your Lordships to-day. It is a topic which has already been discussed on a number of occasions in another place since the Summer Recess, and on one occasion in your Lordships' House when, during a debate on the international situation in the course of that short Session specially designed for the better chastisement of your Lordships, the question was raised incidentally in a speech on the general subject by the noble Lord, Lord De L'Isle and Dudley. But in the circumstances I make no excuse for offering to your Lordships a fuller opportunity to consider and to express your views upon a matter which I believe to be of fundamental importance at the moment. Having read the replies made by a multiplicity of persons on behalf of the Government—the noble and learned Viscount on the Woolsack, the Secretary of State for Foreign Affairs, the Lord President of the Council, and the Under-Secretary of State for War—it does not seem to me that any one of them has yet grasped what is the real basis of the opposition to the course which they are pursuing, or realised the powerful weight of public opinion that there is against the further pursuit of that policy.
§ It would be hypocrisy on my part if I were to pretend to your Lordships that in submitting this Motion I am animated by any peculiar tenderness for the German people as such. Indeed, that perverse blend of ferocity and docility in their character had been up to 1945 the scourge of Europe for eighty years, and I have the same reason as others of my generation in this country and in other countries for remembering that fact—and perhaps something over 5,000,000 other reasons as well. Nor have I ever detected any proof that, as a class. German 158 generals were ex officio any more lovable than their compatriots at large. But if I claim no tenderness for Germans, I do claim a tenderness for the good name of British justice here and abroad, and it is because I believe that the prestige of British justice is degraded by the continuance of these proceedings that I have submitted the matter to the judgment of your Lordships to-day. This is not a fanciful thought, but is a matter of far more than local importance. In the world as we see it to-day, this country has not sought but has been accorded the moral leadership of Western Europe. I believe that one of the elements which has made this country acceptable to its colleagues as a moral leader has been the veneration which is extended everywhere in Western Europe to the integrity of the system of justice here. It would be deplorable if we selected this moment at which to relax our standards.
§ Justice has many attributes, but in any classification of them surely speed must always take a high place. Justice long delayed is no longer just. In this country we have been able to take pride in the fact that our administration of criminal justice has, by and large, possessed that quality of swiftness. Indeed, we have at times viewed with a certain horrified complacency the laborious creaking of the judicial machine in other countries and compared it unfavourably with the oiled efficiency of our own. But, my Lords, if these trials proceed, we shall never again be able to make a comparison of that kind without attaching to it one signal and lamentable reservation—the trial of the German generals.
§ To those who have challenged the Government about this matter hitherto—and be it remarked that that challenge has not come exclusively from the Opposition Parties—there has been one stereotyped reply, although the Secretary of State for Foreign Affairs, in the long statement which he made in another place on September 22 last, professed himself quite unable to understand what the protests were about. It may possibly be that the course of the debate in your Lordships' House will at least serve the useful purpose of enlightening the Foreign Secretary to some degree upon this subject. Be that as it may, the answer which has been accorded to all inquirers so far has been practically this: "There 159 has been delay; there has been, if you like, excessive delay. We are very sorry about it, but there it is. The fact remains, however, that to try persons in subordinate positions and let their superiors go would, in our view, be wrong." I hope that the noble and learned Viscount on the Woolsack will be saved a portion of his speech this afternoon if I say here and now that I accept entirely the principle that subordinates must not be punished and superiors allowed to go free; and he need take no time and exercise no ingenuity upon establishing and recommending that principle. But to that principle there must be some qualification—namely, that if proceedings are undertaken against the superiors (as they should be) the proceedings must be undertaken and carried through with reasonable dispatch.
§ Let us for a moment consider the history of this matter from the chronological aspect, as it was revealed by the Secretary of State for Foreign Affairs in his statement to which I have already referred. These men, Field-Marshal von Rundstedt, Field-Marshal von Manstein, Field-Marshal von Brauchitsch, and Colonel-General Strauss, all men of or approaching seventy years of age (although that consideration may not be particularly relevant on any other but sentimental grounds) were captured or surrendered in May or June of 1945. We are now in November of 1948, and Field-Marshal von Brauchitsch has solved the problem in regard to his case by having recently died. Between May and June, 1945, and August, 1947, nothing, at least in public, was heard of this matter, but it now appears that in August, 1947 (more than two years after they had surrendered or been captured) the United States authorities informed the authorities here that in their view there was a prima facie case against these men. I do not know what the charge then discovered was or what it is now, and I very much doubt whether they do; but that is immaterial from this particular point of view.
§ Having received that information in August, the Government here, apparently in October, invited the United States authorities to take over these men, who were in our hands and in captivity in this country, and to try them before the United States tribunal set up for the purpose 160 of trying war criminals in Germany. To that request the United States replied in November, 1947, that it was then too late to include these men in the next batch for trial, and that that next batch would be the last because they were closing down their machinery. I pause for a moment only to ask why, if the United States thought it right to close down their machinery at the end of 1947, we find it necessary to contemplate the continuance of ours into 1949.
§ At the end of December, 1947, nearly a year ago, this matter was apparently considered by the Cabinet here and it was decided, the noble and learned Viscount on the Woolsack having advised his colleagues that there was a prima facie case against these men, to proceed with the trial. That was before the end of 1947. Seven months passed and nothing was heard of this matter except this: that in July, 1948, these men were released from captivity here and sent back to Germany. If I understand the matter aright—and I have never seen the allegation questioned, still less denied—they were sent home from their captivity here without any indication being given to them that they were not going home to liberty, but were going home to stand trial for their lives as war r criminals. I find it very difficult to think that it is in consonance with the practice of British justice that we should have sent these men away from here without some indication of the fate that was awaiting them on their return to their own country. It was not until well on in August of this year that any public announcement was made as to the intention of the Government to proceed with these trials.
§ As regards the charges, I say only this: that on each occasion when this matter has been discussed it has been said that these men have now (although I know not at what moment between August and now) been given a general statement of the charge against them. A "general statement," of course, can be a piece of paper on which is written: "You are about to be charged as a war criminal. I do not imagine that we expect them to stand their trial without something rather more specific than that, but it would be interesting to know whether, even now, particulars of the actual detailed charges have been put into the hands of these accused men, and, if not, when it is 161 proposed to deliver these charges to them. As a corollary to that question, when is it expected that, ultimately, the trial will take place?
§ In that chronological table which I have given in summary form, your Lordships will observe that this matter started in May or June, 1945, and that there is no possibility of its being concluded by the end of December, 1948. I do not know, at this stage, the lines upon which the noble and learned Viscount the Lord Chancellor will proceed in his reply. But, as I have said, I submit to your Lordships that the aspect of delay is the fundamental aspect, and that it cannot be pushed out of the way by any mere expression of regret, because it is intrinsic to the whole question at issue. If the noble and learned Viscount is going to tell us that these men must be tried because their subordinates have been tried, he need not bother himself about that principle. I hope that he will direct his attention to the charge of excessive delay, because although, other things being equal, that principle of responsibility cannot be challenged, it must always be subject to the consideration whether an unreasonable period of time has been allowed to elapse in the interval.
§ I do not know whether it will be said that in these proceedings we are being encouraged, instigated or requested by other countries. Let us remember that we are not talking about an international tribunal; we are talking about a British court which will be set up, presumably, in the British occupied area of Germany. And it is our justice which will be administered there, our conduct of the trial which will be watched, and our policy in establishing the trial which will be criticised. Consider what the position would be if this were a question, not of war criminals but of an ordinary murderer—if murderers are ever ordinary—in this country. Suppose that a man had committed a murder and had been arrested for it, or had surrendered to the police because of it, in May or June of 1945; and suppose that we had held that man in custody during the whole of the intervening period, and did not propose to bring him to trial for his life until the beginning of almost the fifth year since he had been apprehended. Would the conscience of the people in this country support that procedure?162
§ Let us, for a moment, remember Nuremberg in this connection. We may be told that there are vast quantities of documents to be gone through in the case of these men. We know the quantities of documents which had to be gone through before the Nuremberg Trial started. Was no research required? Had no charges to be prepared? Had no indictment—and we know the elaboration of it—to be drawn up? The war came to an end in Europe in May, 1945, and by October of that same year there had been a preliminary sitting of the International Tribunal which ultimately conducted the Nuremberg Trial. And the judgment, after a prolonged and exacting hearing, was given in October, 1946. If that speed could be developed and maintained in the case of those men who were, rightly, tried at Nuremberg—among them two generals and two admirals—why is it necessary to have the delay which has elapsed in this case before it is even contemplated bringing these men to their trial? That is the gist of the whole matter. Whatever may have been their offences—and I know not what they may be—is the cause of justice served by bringing these men to trial after nearly four years of captivity have elapsed, and after they have been returned to their own country in the circumstances to which I have referred?
§ I desire, almost in passing, to mention two incidental but subordinate matters. In the course of debates in another place, and in correspondence in the Press, there has been a good deal of criticism of the conditions under which these men have been detained. I do not propose to take up your Lordships' time by elaborating that theme; I will merely ask at the end of my speech—and that will not be long delayed—one specific question directed to that aspect of the matter. The other question to which I would direct attention is this. In his statement in another place, the Foreign Secretary referred to the fact—and the phrase left, I confess, a somewhat disagreeable taste in my mouth—that "a series of medical boards" had been held upon these men. I do not know how many medical boards it takes to constitute a series.
§ Reference was made, l think, to two—one a War Office board, and the other a Home Office board—and to a joint pronouncement of the two at some subsequent stage. But I cannot help thinking 163 that your Lordships would be interested to know how many medical boards—either War Office or Home Office boards—were, in fact, ordered for the benefit of these men. It may be an unjustified suspicion that the policy was to have one medical board after another in order to try to obtain the answer which the Government wanted and, if that ultimately failed, only then to be left in the unfortunate position of having no recommendation of a medical board on which to proceed. I do not like that expression "a series of medical boards," and I would be grateful for some further elucidation.
§ I have given the noble and learned Viscount on the Woolsack notice of the specific questions which I propose to put as the basis of the discussion this afternoon. The first question is: For what reason was it that after his Majesty's Government had been informed by the United States authorities, in August, 1947, that there was believed to be a prima facie case against these men, matters were so long and so grievously delayed and no public pronouncement made until August of this year? The second question is: Why were these men allowed to return to their own country without any indication of the fate that was awaiting them when they arrived there? The third question, to which I think I have already referred, is: Have any particular and specific charges even yet been presented to these men for their and their advisers' consideration? If not, when is it expected that those charges will be in being, and when is the trial timed to take place? The last question relates to the matter of the conditions in which these men have been detained, and it is this. I would like to know whether, during their detention, either in this country or since their return to their own country, these men have been detained in conformity with the International Conventions governing the treatment of prisoners of war. If those Conventions have been departed from, why has there been a departure from the normal procedure, and in what respects has that departure taken place? I hope that, as a result of this debate and the explanation of the situation which we shall hear from the noble and learned Viscount, our anxieties upon this matter, which are very real, may be relieved. But I believe I am interpreting the collective mind of your 164 Lordships when I say that, so far as in us lies, we are determined to see that in the pursuit of retribution, justice shall not fall by the way. I beg to move.
§ Moved to resolve, That in view of the length of time which has elapsed since their capture and of the circumstances of their detention since that date, the proposed trial of certain senior German general officers as war criminals is not in accordance with the principles of British justice, and that the proceedings should therefore be discontinued.—[The Marquess of Reading.]
§ 3.14 p.m.
§ THE LORD CHANCELLOR
My Lords, I think it might be convenient to your Lordships if I were to speak at this early stage in order that I may set out a bare catalogue of the facts and dates, so that those noble Lords who take part in the debate at a later stage will know what are the circumstances. I must say at once that I think the noble Marquess who has spoken needs no excuse or apology for raising this matter. I regard it as all to the good that we should demonstrate, particularly in regard to these matters, that we are determined to see that the principles of justice by which we stand prevail. For my part, I am always glad that your Lordships' House and another place show such an interest in these matters and that you should bring all these questions under the searchlight of public opinion.
I will be frank with your Lordships and add that, for my own part, I have not found this an easy matter to decide. In what I say, I must be most careful to say nothing which will in any way prejudice the case of these persons. Subject to that, I will tell your Lordships the facts which I think we ought to bear in mind. It is true that these men came into our custody as prisoners of war in the summer of 1945. The first fallacy underlying the speech of the noble Marquess is that the period which we should consider dates from then. He likened it to a man arrested for murder who had been in custody under that charge for four years. The fallacy of that argument is this: these men were ordinary prisoners of war against whom we had no evidence whatever. They were like hundreds, thousands, tens of thousands of their compatriots, prisoners of war in this country. Field-Marshal von Rundstedt actually gave evidence at the Nuremberg Trial 165 and, so far as I am aware, nothing was known in regard to him at that time. Therefore, it is a complete fallacy to date the delay there has been in this case as from the summer of 1945.
I understand that the first time we knew anything of the relevant facts at all was at the end of August, 1947. We got to know them in these circumstances. The Americans were getting ready to start a trial which included amongst those to be tried Lieutenant-General Karl von Rogues, who was a commander of the Rear Area, under Field-Marshal von Rundstedt, and Lieutenant-General Otto Woehler, who was Chief of Staff to Field-Marshal von Manstein. The Americans were trying these two men, amongst others, and in the course of the preparations they were making for that trial they elicited from a mass of documents (which I must make plain are in the possession of the Americans, not in our possession; we do not have access to them) certain documents which tend to show that the three men we are now concerned with had themselves been guilty of serious war crimes. It was, I think, at the end of August, 1947, that the memorandum of evidence was sent to us by the Americans. That was some nine months after the Nuremberg Judgment. When we received that memorandum of evidence it was thought desirable that the Americans, who were already trying von Rogues and Woehler, should include at the trial their two heads, Field-Marshals von Rundstedt and von Manstein. The Americans, as they were perfectly entitled to do, refused to do so. The noble Marquess asked why the Americans now are not going on with their trial, and why should we not do the same thing. The answer is an easy one—because the Americans have tried all those major war criminals against whom they have evidence, but we have not tried some of those against whom we do have evidence.
Although I do not want to prejudice the case against these men, it is fair that I should refer to one document, or one purported document, about which your Lordships ought to be informed.
THE MARQUESS OF READING
I hesitate to interrupt the noble and learned Viscount, but he said a moment ago that the Americans had all the documents and that we had not got them. If they 166 have all the documents, why do they close down instead of proceeding on the evidence which they have?
§ THE LORD CHANCELLOR
Because I think the Americans take the view that it is oar turn, and that we must not shirk our share. It is all very well for your Lordships to laugh about it, but the fact is that it would have been much easier for us if we could have got the Americans to do it. We used every pressure we could, at highest level, to get the Americans to do it, but they were not willing. Those are the circumstances. I tell your Lordships frankly that this is a difficult problem, and I want to put all the considerations before you. It is not a laughing matter at all; it is a very serious matter.
It was in November, 1947, that, notwithstanding our pressure, the Americans declined to undertake this further task. In December, 1947, the Polish Government asked that von Brauchitsch and von Manstein should be delivered to them for trial. I will show your Lordships in a moment what the Treaty position is in regard to that matter. In December, 1947—the actual date was December 23—these papers came to me. Before that date I am on record in your Lordships' House as having expressed my earnest desire that these trials should come to an end. I say, quite frankly, that if when I looked through those documents I could honestly have said that there was no case of sufficient gravity to be tried, I should have been glad to do so. I could say no such thing. That memorandum, which purported to be an extract from all the documents (to make it quite clear, I had not seen the documents) plainly showed, if it was accurate, that there was a case which ought to be tried. That was the opinion which I expressed on December 23, 1947.
But, in considering whether to try or not to try, we obviously had to consider the age and state of health of these men. In January, 1948, these men were boarded by an Army Medical Board. The Army Medical Board were asked whether these proceedings (they must be trying, and must be lengthy) were likely to affect the health of these men adversely. They were asked that question with regard to each of the four men, and in each case they answered "Yes." It seemed to me then, and it seems to me now, that that was completely the wrong question to ask. 167 It is obvious that in going through the strain and ordeal of a long trial the health of any man—even a young man, or a middle-aged man—is likely to be affected adversely. The right question to ask, surely, is this: "Is this man fit to stand his trial?" That is the test we should apply in this country. If a man is accused of some serious crime, we put him on his trial unless the Home Office doctors certify that he is not fit to stand his trial.
Having got that answer from the Army Medical Board, which, for reasons I have given, I thought was completely unsatisfactory, and that the wrong question had been asked, we had these men boarded in March, 1948, by the Home Office Medical Board; and they answered, except in the case of von Brauchitsch, that all these men were fit to stand their trial. If I may say so, I thought the noble Marquess's suggestion that we went on getting one medical board after another to try to get the answer we wanted was wholly unwarranted. To be quite frank, the answer I should have preferred was that they were not fit to stand their trial. But that is not the answer I received, except in the case of von Brauchitsch. If the expression "series of medical boards" was used, it was inaccurate. So far as I know, the only two medical boards were the Army Medical Board in January and the Home Office Medical Board in March; and, for the reasons I have already given, I thought we ought to have greater regard to the Home Office Medical Board decision, because I thought they had had propounded to them the right question, whereas the Army Medical Board had had propounded to them the wrong question.
In that same month of March, 1948, the Russians pressed for the deliwery to them for trial of Field-Marshal von Rundstedt and Field-Marshal von Man-stein. It was in these circumstances that the matter came before the Cabinet for a collective decision, and that decision was given in July, 1948. In July, 1948, these generals, in company with eighty other generals who were over here as prisoners of war, were returned to Germany. It is complained that they should have been told before they went that they were going to be charged. Well, they were not told. I do not myself 168 think there is much grievance on that account, if, indeed, there is any. They were sent over to Germany, in conjunction with all the other generals, and in exactly the same way. At the end of July, 1948, Field-Marshal von Rundstedt and Field-Marshal von Manstein were sent to Nuremberg. They had been asked to give evidence on behalf of their subordinates, von Rogues and Woehler. It was pointed out to them that they could decline to give evidence, if they felt that to do so would incriminate themselves; and, though they reached Nuremberg, they were quite within their rights in declining, as they did, to give evidence.
Accordingly, in August, 1948, all the generals—these four and the other eighty—were demilitarised together. Some complaint has been made about that, which shows, I think, a complete misunderstanding. It has been the policy of all the Allies—and, surely, it is right—that the Wehrmacht be extirpated, root and branch, and that all prisoners of war, of whatever rank or degree, on being returned to Germany should be demilitarised. This happened to those four generals, in conjunction with the eighty other generals who went with them. That is in accordance with the rule of the Allied Control Council which, of course, overrules the German law altogether. In another place some complaint was made on the ground that a field-marshal, according to German law, always remains on active service in the German Army—as I think he does in our own Army. But the Allied Control law is a Jaw paramount, which overrides the German law, and the Wehrmacht throughout has been completely demilitarised.
In August, also, these four generals were informed in writing that they would be tried as war criminals. I quite agree that the accusation against them was set out in general terms and was not, and has not yet been, particularised. On October 27, 1948—and all these facts should be borne in mind—the judgment of the United States court was pronounced. Lieutenant-General Carl von Rogues was found guilty of the most frightful atrocities, and was sentenced to twenty years' imprisonment. Lieutenant-General Otto Woehler, who was Chief of Staff to Field-Marshal von Manstein, was sentenced to seven years' imprisonment. To bring the matter up to date, I may say 169 that a party of German-speaking experts and lawyers have left for the United States in order to inspect the original documents.
To give your Lordships an indication of the sort of thing with which we are dealing, I hold in my hand what purports to be, and is, a photostat copy of an original document. The original document, if the photostat is right—and I am not pre-judging that—bears upon it the signature of Field-Marshal von Rundstedt. It is dated—and the date is very important—July 21, 1942, and it deals with the way in which commando troops should be treated. It provides that the commando troops, by which I mean the parachutists—if captured outside real battles, have to be turned over without delay to the nearest office of the Gestapo. It does not matter whether the prisoners are in uniform or not. These measures are to serve the purpose of bringing to a quick and definite end such operations.Now the Hitler commando order, which figured at such great length throughout the Nuremberg Trials, was an order of October 18, 1942, and it was said that that order had been disregarded. This order, of which we had no knowledge whatever at the Nuremberg Trials, is, your Lordships will see, dated some months before the Hitler order.
At the present time I am not prepared to say—as I suppose I have to in order to prove the case—that some particular person, on some particular day, was put to death as a result of that order. It may or may not be possible to prove that that is the case. But I quote that order to your Lordships as indicative of the gravity of the matter with which we are dealing. Being handed over to the Gestapo meant that though death came ultimately, death came, when it did come, as a relief in only too many cases.
May I now tell your Lordships of one other matter, and then I will put to you the problem as I see it. I want to remind your Lordships, if I may, of what the Nuremberg Judgment said about the General Staff. I think we ought to bear these things in mind. This is what the Nuremberg Judgment said:They have been responsible in large measure for the miseries and sufferings that have fallen on millions of men, women and children. They have been a disgrace to the honourable profession of arms. Without their military guidance, the aggressive ambitions of Hitler and his fellow Nazis would have been 170 academic and sterile. Although they were not a group falling within the words of the Charter, they were certainly a ruthless military caste. The temporary German militarism flourished briefly with its recent ally, National Socialism, as well as or better than it had in the generations of the past. Many of these men have made a mockery of the soldier's oath of obedience to military orders. When it suits their defence they say that they had to obey. When confronted with Hitler's brutal crimes, which are shown to have been within their general knowledge, they say they disobeyed. The truth is, they actively participated in all these crimes or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to know. This must be said. Where the facts warrant it, these men should be brought to trial, so that those among them who are guilty of these crimes should not escape punishment.That is the Nuremberg Judgment, and at the time of it we had not the slightest idea that there was evidence against these men who were then, and had been for over a year, in our possession as prisoners of war. It was not until we received the memorandum from the Americans later, in August, 1947, that we learned these things.
What is our position with regard to our Treaty obligations to hand over these men? I myself have been asked in more than one place to be quite sure when we hand anybody over that there is not only a prima facie case, but a strong, case. The Treaty position is as follows. The Moscow Declaration of October, 1943, provided that war criminals should be sent to the place where their crimes were committed, without prejudice to the position of the major war criminals. At the Berlin Conference, in August, 1945, the three Governments affirmed their intention to bring these major war criminals to swift and sure justice, and regarded it as a matter of great importance that the trial of these major criminals should begin at the earliest possible date. The London Agreement of August, 1945, affirmed the Moscow declaration, and Control Council Law No. 10, Article 1, excludes any other country from participating or interfering with the operation of Law No. 10, which provides for the trial of war crimes. That is to say, if we ourselves are undertaking the trial of these men, no country is entitled to interfere. If we are not undertaking the trial of these men, with regard to whom there is a prima facie case, then we are under obligation to hand them over for trial. That is the fact.
171 Now I will tell your Lordships my anxiety about this case. I do not stress unduly the obvious fact that, until quite recently and, for all I know, even at this present moment, we have been having trials of men in Germany—I myself was present at one not long ago—charged with the shooting of one of these commandos, and they have pleaded superior authority. Those trials have been going on until quite recently, if they are not still continuing. Of course, it is an obvious point, and I do not need to stress it, that if we are trying men who acted on these orders, we ought to try the men who gave the orders.
I feel that the case for trial is that we now have evidence. I have given your Lordships only one document; there are many documents. I ask your Lordships to believe it when I tell you that the memorandum submitted to me on December 23, 1947, was a memorandum which, if any of your Lordships had seen it, would have caused you to say, "If this memorandum faithfully reproduces what is in these documents, this is a most terrible story." I hope your Lordships will accept it from me when I say that. We have the documents of the Nuremberg Trials. We know what we ought to do. We all agree that merely because a man is a general he should have no special privilege and no special treatment; and we all agree that the object in having these trials at all is not to wreak vengeance on, or punish, some individual, but in order that the world may know that if such unhappy things ever happen again consequences of this sort are likely to follow. That is the object of the whole thing.
Those are the arguments for trial. Now for the arguments against trial. These men are old; Rundstedt is 73, Manstein is 61, Strauss is 69. Their health is not good; Manstein is suffering from some cataract, Strauss from a heart, and Rundstedt from incipient arterio-sclerosis. Their health, then, is not good. And there has been delay. I agree that there has been delay. The reason for that is that the department which has been handling this matter, and which has done yeoman service, has been running down. It was staffed largely with members of the Bar and they have returned to their ordinary peace-time vocations; and, deprived of their activities, the department suddenly 172 had this new and immense task thrust upon them. Certainly there has been delay, and that is a legitimate and material factor to bear in mind.
But what are you going to do? Are you going to say to the Russians and the Poles (and the documents seem to show that the atrocities were largely committed in their areas), "We are not going to try these men, because we have been guilty of delay, but we decline to hand them over to you, although you have not been guilty of delay"? Are you going to hand them over? Are you going to say, in spite of the Nuremberg Judgment and in spite of the fact that we now have evidence which we did not have before, "We wash our hands of this business because there has been some months' delay"?—some months, I say: not more than that. It is quite fallacious, as I have said before, to go back to the summer of 1945 when we had absolutely nothing against these men—who were kept like any other prisoners of war. Since that time I have seen the digest of the American memorandum. That was the first intimation we had, and I do not conceal that there is still much work to be done. But the point is that an order was issued on a particular day, and consequent upon that order A, B and C were murdered on some other day. I have not the material, and there is an immense amount of work to be done in going through these documents, which are in America. Therefore I cannot pledge myself as to a precise time for a trial. I hope, subject always to the defence being given sufficient time to prepare themselves, that we shall be able to stage this trial in March—but I am not saying more than "I hope". By that I mean that maybe circumstances will make it impossible; but at any rate that is what I hope is a likely time.
There is one other point that we must consider again, and that is the health of these men. It would not be right to put a man on his trial if his doctors say he is not fit to stand trial. We do not want to get from them the answer that we want; we want to get the true answer, and we want to temper our justice with humanity. That is the problem; and I submit to your Lordships that the right thing to do here is to go on with this trial, always assuming that the health of these men is sufficiently good. And although we cannot, of course, recover 173 the months that the locusts have eaten, we can at least take care that the locusts do not get a second helping.
§ 3.46 p.m.
§ VISCOUNT SIMON
My Lords, everyone who was here when the noble Marquess made his speech and moved his Resolution must have been deeply concerned by the considerations which he put before the House. I am sure I correctly interpret the inner feelings of all who heard it when I say that we were all most anxious to have the opportunity of considering whether in this very difficult problem the Government's decision to prosecute was right. And we have all listened with the most intense interest to the grave and powerful speech just made by the noble and learned Viscount, the Lord Chancellor. I confess that, for myself, the feeling which is uppermost in my mind at the moment is that I intensely sympathise with him in having to consider and advise on so grave and difficult a matter. I am quite certain that he has considered it and has offered his views to his colleagues (which they have accepted) with the single-minded desire to do the right thing. There is no Party question here at all; we all want to see villainy exposed, and we all want to see not merely the principles but the methods of English justice properly followed.
One or two of the smaller matters may be got out of the way at once. In the light of the noble and learned Viscount's statement, I do not think there is anything of great importance in the question of what was called a "series of medical boards." That was the phrase that was used by the Foreign Secretary in another place; and it was natural that as that was the phrase used, the noble Marquess, Lord Reading, should have put the question. But that is disposed of. I do not think any more about it. Neither is there anything in the point (which, indeed, Lord Reading did not seek to make, but which has been mentioned by the Lord Chancellor) about demilitarisation—nothing at all. I apprehend that in this matter we, at any rate, would insist upon the elementary British principle that a man has got to be tried (if he is tried) for a crime (if it be a crime) which he has committed having regard to his position at the time that it was committed. The circumstance that, by some process 174 or other, he is transferred into some other status later on matters not at all.
Of course, under our law—and I am very glad that it should be so—the fact that a man wears His Majesty's uniform, and indeed is on active service, is no reason at all why he should not be tried in a civil court, in an ordinary criminal court, if indeed he has committed an ordinary crime. A soldier at Aldershot who may be under full military discipline and liable to military law is none the less amenable at Winchester Assizes if he commits a crime which is contrary to our criminal code. Therefore, there is nothing in that, and the noble and learned Viscount the Lord Chancellor has swept that right away. There is really only one question—that is, the question as to whether, however it has come about, there has in fact been such an amount of delay, such inordinate delay, as makes it right on the whole, according to our tradition and outlook, to treat these charges, horrible as they are, frightful as they are, as things that are being brought to investigation too late. That is the only question, and I do most deeply and sincerely sympathise, as I think we all do, with the noble and learned Viscount on the Woolsack because it has been his duty to decide that most difficult question.
For my part, I should draw a very sharp distinction, which I think would be generally accepted, between two quite different classes of case. Even in our own domestic tribunals, in our own administration of criminal justice in our own country, this distinction is observed and insisted upon. The prevailing rule, the practice, the method, is to secure that justice shall be swift. It is our pride—and we are right in taking pride in it—that this country probably exhibits in its criminal courts the application of that good rule better than any other country in the world. But, of course, there is an exception which we all recognise, although it is not always clearly defined. It is this. I am speaking for the moment purely of our domestic criminal code. If it be the case that, after long years have passed, it is ascertained for the first time that a man who has hitherto been regarded as a respectable member of society did long ago commit some foul, secret crime—for instance, that he secretly poisoned his wife, or whatever it may be—the mere fact that that has 175 only quite recently been discovered is no reason at all why he should not be tried, long afterwards. That is the principle upon which we all go.
I hope that I have the assent of your Lordships when I say that those are the two principles which we observe—not one, but two. Therefore, we really come back to the question: Is the interval which has taken place, however it has come about, such that it was a mistake to take the view that these prosecutions should be instituted, or is the interval excusable because the facts were only suspected later? I do not spend a moment of time in dwelling upon the horrible nature of the accusation which is contemplated. We are all absolutely at one about that. That is not the point. I am not assuming, but I am proceeding on the basis that it is believed there is material to establish those frightful facts.
There are one or two things which your Lordships still have to consider, because we shall not decide this emotionally; we shall not decide it even out of the sympathy which I think we all feel in this matter with the noble and learned Viscount the Lord Chancellor; we shall endeavour to weigh each consideration for ourselves. I was struck by a sentence of my noble and learned friend when, referring to the medical inquiries, he said that he would have liked to receive the answer that these people were not fit to stand trial. Why was that? Remembering the frightful character of the accusation which was pending, why does the noble and learned Viscount the Lord Chancellor form the view, and very frankly state the view, that for his part he was hoping that these medical experts would say: "These men are not fit for trial?" It must be—it is, of course—because he feels, as I think we all of us feel, a very great deal of anxiety in view of the time that has elapsed.
I can assure your Lordships that I do not want to take small points, for I do not feel like that at all; but there was another observation which the noble and learned Viscount the Lord Chancellor made which rather puzzled me. He told us how, when the Americans sent over here their summary of this great mass of documents which was in their possession (and, as I gather, is still in Washington at this hour) and when His Majesty's 176 Government urged that the Americans then should undertake the prosecution of these men, the Americans expressed the view—I think I have the phrase rightly—that they "had tried all the war criminals against whom they had evidence." I think that I produce exactly the words that the noble and learned Viscount used—that the Americans said that they "had tried all the war criminals against whom they had evidence." Was the view this: that to make this case finally effective, to establish it, as the Lord Chancellor indicated, it would be necessary, or at any rate very important, to show that named persons had been massacred as a result of the horrible and abominable order which it is suggested these documents show had been given? If that is the view, I can understand its being said that there was not at present evidence in the hands of the Americans to do what they were asked to do. But on that view, there is not at present enough evidence in our hands either.
In fact, what happened was that the United States authorities, who had maintained a large and highly qualified team for the purpose of carrying through this business of dealing with war crimes, decided to shut down, and the United States were not prepared to go on any longer. The reason, I am afraid, is quite clear. It is not because they got weary of the work, not because they did not apprehend the documents which they had examined, but because they felt that really it was too late. I can see no other explanation, knowing as I do from the days when I was Lord Chancellor the zeal and thoroughness with which Mr. Justice Jackson and others in the earlier days organised and developed this matter which fell within their duty.
I am afraid I think that we too had come to the conclusion that it was time to stop. The Lord Chancellor in his speech just now did not state it with the precision which I believe would be justified, but I think I am right in saying that our organisation for prosecuting war crimes was being closed down on August 31 last, and that, in fact, as indeed the Lord Chancellor did indicate, the team of most competent and devoted people who had been carrying out this grave task was in course of being disbanded. Indeed, unless I misunderstand the situation, it must be that some of those experts are being recalled or new 177 individuals are being recruited for the purpose of carrying the matter on as against these generals.
Before the House reaches its conclusion I think we should have those two facts in mind—that in the view of the American authorities the time had come to call a halt, notwithstanding that they knew better than anybody what were the contents of the documents in their hands; and, on the other hand, that our own authorities had come to a similar conclusion. The Judge Advocate-General until quite recently not only prepared cases which fell under our military law but, after preparing them, was responsible for conducting the trials and, after that, was responsible for reviewing the decisions—a combination of duties which I have reason to think Sir Henry MacGeagh always objected to. All that has quite recently been altered as a result of two Commissions or Committees of Inquiry conducted by two learned Judges, and henceforward the Judge Advocate-General will have nothing to do with the preparation of such cases but will reserve himself for matters other than the prosecution.
Here we are dealing with war crimes, but, as the Lord Chancellor has pointed out, this is not an international court before which these people are to be brought; it is a British court—a court inspired with our own traditions of prompt and fair justice, as prompt as can be. Whilst I, of course, accept everything which the Lord Chancellor has told us as a fact, I do not quite understand how he came to say of these documents in Washington that they were documents "to which we did not have access." I must say I should have thought—taking the view which he has thought right to take—that the first things to do, as soon as the Americans refused to do anything more, was to have those documents over; instead of which, months afterwards, we are told that there is now on the way to the United States a party of experts who can translate German, and who are going to examine this vast bundle of materials in the United States. It really is very mysterious. Though I can well believe that there are other documents which may rival in importance the one or two to which my noble friend has referred, what I find so difficult to understand is how, at this time of day, it can be stated by the Under-Secretary for War in the House of 178 Commons on October 26, only a week ago:The explanation of the delay is the extreme complication, the enormous complexity arising from thousands of documents.I frankly admit that I do not quite understand that.
Those are the reflections which I feel it my duty to put before the House, and I am not at all ashamed to say that, in view of the answer of the Lord Chancellor and my knowledge of his own powers in these matters, the impression created on me by the speech of the noble Marquess is very considerably modified by what has just been said. Even if I thought—and on this I have not presumed to form a view—that a mistake in judgment and decision had been made, there are things which really have to be left to the responsible and unquestionably impartial judgment of the man upon whom falls the prime responsibility. I do not see any other course which a man—certainly rot a man of my experience and qualifications, such as they are—could properly take.
I believe there is nobody in this country who attaches more importance than I do to swift justice. I feel most deeply grave doubts as to whether the carrying on of this process is going to do any good. If the Nuremberg trials and the magnificent pronouncement then made from that International Tribunal, part of which my noble friend has read, are not going to impress the world with the resolve of free peoples to expose frightful, horrible cruelties, even though they may be perpetrated in time of war, when they are against every canon of proper conduct, you are not going to do it by trying these people. On the other hand, there are running in my mind two lines of Horace which I will not presume to quote in the original to the House, but which might be roughly translated:Her step may halt, but seldom leavesThe guilty wretch whose track she hounds.There are undoubtedly cases in which the justification for much delay may be found in the very peculiar circumstances of discovery. What I think we should like to know, or at any rate what we should dwell upon with great anxiety, is the question of how long all this is going to take. Just consider: here we are, in November, 1948. Down to this moment 179 this documentation so industriously collected by the American authorities is still in Washington, the place which has washed its hands of it; and I find it rather difficult to see how any sort of formulated charge can be made against these people until the documents have been thoroughly examined. There is therefore a terribly heavy task in front of the prosecution. The Lord Chancellor says that he hopes to get this trial beginning by March. I had previously heard January suggested, but March, I feel sure, is as early a date as can be counted upon. As the Lord Chancellor says, you must not merely be prepared to prosecute; you must be sure that the people prosecuted have a fair chance of defending themselves. One of the first things in defending a person on a serious charge, as everyone knows, is to see the documents—"Let me learn what my own client has to say about them. Let me discover if he says there are other documents which contradict or conflict with those." Until that has been done, there cannot be an honest trial at all. Therefore, I look forward with the gravest anxiety to the yet distant date when this business will come to an end.
I will venture very respectfully to make one other comment. The Lord Chancellor's speech, of course, was one of immense power, and, for all his easy manner, it was carefully arranged in the most effective order. He kept to the end this Treaty which we signed—the Moscow Declaration. I hope that I am as much concerned to see treaties observed as any man. Indeed, one of the greatest mischiefs in the world at this time is that it is becoming almost common form, in some countries, to sign treaties without the slightest intention of observing them. That is the thing which makes covenants and contracts, even of international character, such an uncertain security. After all, the Moscow Declaration began with the assertion, if I am not mistaken, that the signatories were determined to secure that "swift and sure justice" was done on those who were found to be war criminals—it was to be swift, as well as sure, justice. It does make a difference that so much time has now elapsed.
Therefore, while my noble friend Lord Reading has rendered great service in putting this matter, as he has done, 180 so clearly to the House. I cannot for a moment withhold the further expression of my own reaction—not based on sentiment but based on such hard reasoning as I am able to apply to such matters—that the Lord Chancellor, faced with a terribly difficult task, whether he was in fact right or wrong, has at any rate a very powerful argument to support him. I had come here thinking it was possible—not at all pre-judging the matter but thinking that it was possible—that there might be in this House a considerable reaction adverse to the Government. It is noteworthy (I think I am right in saying this) that in the course of two debates in the House of Commons, no Member of that House, except speakers from the Treasury Bench, has ever defended the Government decision, and criticism of it came from every quarter of the House. I am not sure that every one of the critics would have taken so confident a view if he had heard the Lord Chancellor's speech.
Here we are doing our best to serve the country without prejudice, without passion, recognising the difficulties that rest upon those who are appointed to administer the Government; and I cannot find it, I will not say in my heart but in my judgment, that I should advise that this criticism should be enforced by the vote of the House. I hope very much that this last prosecution—for heaven's sake let it be the last—will do more good than harm. But there we must, I think, put some trust in the integrity of our British tradition and the attachment to justice which is common to us all. For my part, I must leave the matter there, because, on balancing the two arguments, anxious as I am, I am not convinced that the Lord Chancellor came to the wrong conclusion.
§ 4.18 p.m.
THE LORD BISHOP OF TRURO
My Lords, we have listened with the deepest respect to the very weighty speech of the noble Marquess who opened this debate. We are very grateful, also, for the extremely weighty and learned utterances which have since been made and which, I am sure, have helped us so much. I think we shall be agreed that it was very desirable that this debate should take place. It has emphasised certain vitally important matters. First of all, we are all agreed that, in this connection, rank is absolutely irrelevant. It is not because 181 these men are generals that we have had this hesitation. Our hesitation is based on the particular question: Has the time now come to call a halt to these trials? The debate, further, has shown how anxious we are—and we believe the country is also—that the principles of English law should be maintained scrupulously; and particularly with regard to the swiftness of justice, we are most anxious that that principle should not be forgotten. The question that still worries us is: Has the time now come to call a halt to these prosecutions; and, if the time has not come now, when will it come? It surely is very important for the recovery of Germany that it should be clear that a new start has been made.
There has been a break with the past, and it is discouraging to those who are trying so hard to turn over a new leaf if we are continually harping back to the past. The tasks before the Continent are enormous. There must be a time limit to the punishment of past faults. When is that time limit to be fixed? I am sure that this House would desire the Government to give very careful consideration to this question and, if possible, to fix more definitely a time limit, all the while considering both sides of the argument. If we feel it wise, we may leave the matter to the judgment of the authorities. The noble and learned Viscount the Lord Chancellor made a most persuasive defence of the attitude taken up so far by those in authority and it may be wise for us to leave it there, underlining, as I have tried to do this afternoon, our intense desire that the principles of English justice should be scrupulously maintained and that a time limit should be set to this punishment of past crimes.
§ 4.22 p.m.
§ THE EARL OF IDDESLEIGH
My Lords, I am loath to trespass still further on the forbearance of the noble and learned Viscount who sits on the Woolsack, but I would be exceedingly grateful if he would clarify one small point for me. I was grateful to him, as were all noble Lords, for his historical exposition on this matter. I have in my notes that he told us that the Home Office medical board, in March, 1948, found that all the generals, except von Brauchitsch, were fit to take their trial. I also have it in my notes on his speech that in August, 1948, when these four generals were demilitarised, they were all four 182 told that they would have to stand trial as war criminals. That is a point which seems to be a little curious. If von Brauchitsch was not fit to take his trial, it was surely a curious and somewhat inhuman act to give him official information that he would be tried. It is difficult to feel that in the case of von Brauchitsch particularly, we have acted with that humanity which is as necessary as justice. It has been alleged that when he was dying, but still conscious, there was nobody by his bedside who could speak his native language. His wife came, but by that time he was unconscious. That, at least, is a matter about which we can feel very little satisfaction.
We are grateful to the noble and learned Viscount for giving us so full an account of the matter. It must be left to every member of your Lordships' House to decide, on the presentations made by the noble Marquess and the noble and learned Viscount, what his own feelings in the matter may be. The theme as it was unfolded surprised me enormously, because I was concerned in administration during the war, and I know how very close was the liaison which we maintained with the Americans. What a tragic thing it is if that liaison, which is almost as necessary to-day as it was during actual hostilities, has broken down to such an extent that we can be holding German generals as prisoners of war and the Americans can be preparing a case against them, and yet, after two years, we do not know the nature of the case on which the Americans are working! I know not where blame should be attributed, but no member of your Lordships' House would deny that this lack of liaison has had tragic results for these prisoners, and a disturbing result for us to-day. It is a lamentable omen for the future. It would evidently be most improper to examine with any minuteness the reasons which have induced the American authorities, who I would say were plainly the right people to try these particular generals, to refuse to continue the series of war trials. I can only say that the average man in this country would have been exceedingly glad if we had found it possible to come to a similar conclusion.
§ 4.27 p.m.
THE MARQUESS OF READING
My Lords, I put down this Motion in this 183 particular form in order that it might be possible to take a Division upon it if, after the debate in this House, we were no better placed to form a judgment upon the whole matter than we had been as a result of previous debates in another place. I have no regret for having put down this Motion. To my mind, it still possesses some curious features, about which I confess to feeling no great happiness. I find it very difficult to accept the proposition that these four officers, three field-marshals and a colonel-general, can properly be described in the early days of their captivity as "ordinary prisoners against whom we had no evidence." Von Brauchitsch, to begin with, if my memory is right, was Commander-in-Chief in the West at the critical moment of invasion. The others held little less responsible positions. Did we really regard these people as likely to be no more guilty of war crimes than some private soldier from an outlying part of some occupied country who had been drawn unwillingly into the German Army? I find that very difficult to accept.
The noble and learned Viscount the Lord Chancellor assures me, however, that for more than two years we had no inkling, in spite of all the proceedings leading up to the Nuremberg Trial, and all the documents which were examined in the course of that Trial, that any guilt was likely to be attached to any of these people. Of course, I must accept the noble and learned Viscount's statement, but I find the process a somewhat difficult one. I do not feel very happy about the way in which this matter has been the subject of a sort of standing rally between ourselves and America, one side serving and the other returning, until we seem to be left with the proceedings. Maybe, there being no other machinery now available for trying these men, we are left with the burden of doing it. There are other matters in connection with this subject which I confess still cause me uneasiness. Not the least of them is the fact that the earliest date that the Lord Chancellor can indicate for this trial to begin is still practically another six months ahead.
But, in view of what I think is the general opinion of your Lordships, I do not propose to ask the House to divide. I think the House is left with this in mind 184 —certainly I am so left. I am profoundly unhappy at the delay that has taken place, and I trust that if it does happen that by March proceedings are still not in a condition to begin, the Government will watch this matter with the greatest care, and see that this delay is not allowed to meander on unchecked into the remote future. But, against the feelings of delay, we cannot shut our minds to the seriousness of the kind of offence which the Lord Chancellor has indicated. In those circumstances, I propose to ask leave to withdraw my Motion, at the same time asking His Majesty's Government earnestly to watch the course of these proceedings, and to ensure that, so far as possible, if these men are to be tried, they shall be tried without further avoidable delay.
§ Motion, by leave, withdrawn.