by Ruth Wedgwood
Cardozo Law Review
LENGTH: 3864 words
BREAKING THE CODE: DID CHURCHILL HAVE A DUTY TO WARN?
Ruth Wedgwood *
* Professor of Law, Yale Law School; 1998-1999 Stockton Professor of International Law, U.S. Naval War College; and Senior Fellow, Council on Foreign Relations.
... The question has been asked, whether Prime Minister Churchill had a duty to warn the Jews of Central Europe that the advancing Germans intended to exterminate them. ... This time, Churchill did mention the Jews by name, even if he did not immediately place them in a unique category of victim. ... German authorities, not content with denying to persons of Jewish race in all the territories over which their barbarous rule has been extended the most elementary human rights, are now carrying into effect Hitler's oft-repeated intention to exterminate the Jewish people in Europe. ... But with these statements in hand, it seems evident that if we hold Churchill to a particular duty to warn European and Russian Jewry of its fate - apart from other available voices in the West - there was warning of a kind by August 1941 and a plain and unvarnished expose of the intentions of the Nazis by December 1942. ... International law is eclectic in its sources, and morals can gradually transform into law. ... It may not end the debate to say that the protection of British intelligence describing the threat to European Jews would have preserved some military advantage for the Allies. ...
Let me speak in defense of Winston Churchill. The question has been asked, whether Prime Minister Churchill had a duty to warn the Jews of Central Europe that the advancing Germans intended to exterminate them. The issue has regained public attention because of the recent declassification of intelligence files showing the capability of the British in intercepting the transmissions of German police on the Eastern Front. The reports bragging of the number of executions of Jews made plain to London the murderous intention of Hitler's agents.
Did Churchill act upon this information in a way that we care to endorse? Certainly, he made plain the ruthlessness of German forces in the East. The German invasion of Russia was launched on June 2, 1941. In August 1941 Churchill sailed to Placentia Bay, Newfoundland, to meet with Franklin Roosevelt to review plans for the defeat of the Nazi war machine. On August 24, 1941, upon Churchill's return, London radio carried his celebrated address announcing The Atlantic Charter. n1 Churchill called on Britons and other free peoples to resist the German maelstrom, and in the invocation he warned of the "most frightful cruelties" n2 of Hitler's armies on the Eastern front. He did not single out the fate of the Jews, but any soul in the East who could hear the address was apprised that the Germans were, in this war, no ordinary foe. "As his armies advance," said Churchill of Hitler,
whole districts are being exterminated. Scores of thousands - literally scores of thousands - of executions in cold blood are being perpetrated by the German police-troops upon the Russian patriots who defend their native soil. Since the Mongol invasions of Europe in the sixteenth century, there has never been methodical, merciless butchery on such a scale, or approaching such a scale.... We are in the presence of a crime [*570] without a name. n3
On October 25, 1941, Churchill warned again of "the atrocities in Poland, in Yugoslavia, in Norway, in Holland, in Belgium, and above all behind the German fronts in Russia," which "surpass anything that has been known since the darkest and most bestial ages of mankind." n4 On November 10, 1941, he spoke of "Hitler's firing parties" that were
busy every day in a dozen countries. Norwegians, Belgians, Frenchmen, Dutch, Poles, Czechs, Serbs, Croats, Slovenes, Greeks, and above all in scale Russians, are being butchered by thousands and by ten of thousands after they have surrendered, while individual and mass executions... have become a part of the regular German routine. n5
This time, Churchill did mention the Jews by name, even if he did not immediately place them in a unique category of victim. "I would say generally," he noted,
that we must regard all these victims of the Nazi executioners in so many lands, who are labeled Communists and Jews - we must regard them just as if they were brave soldiers who die for their country on the field of battle. Nay, in a way their sacrifice may be more fruitful than that of the soldier who falls with his arms in his hands. A river of blood has flowed and is flowing between the German race and the peoples of nearly all Europe.... It is the cold blood of the execution yard and the scaffold, which leaves a stain indelible for generations and for centuries. n6
If we detect in Churchill's locution a disturbing assumption that the listener might need to be persuaded of the importance of the deaths of Jews and Communists, we must remember the age in which he spoke; the ideological schisms of the 1930s were still in mind, and even in the liberal West Jews were not fully accepted in polite society.
The organized murder of Jewish communities in Belarus and the Russian Pale by the Einsatzgruppen and German police continued throughout the rest of 1941 and 1942. On December 17, 1942, the Allies published a joint statement that spoke plainly of Hitler's methodical purpose of elimination of European and Rus [*571] sian Jews:
German authorities, not content with denying to persons of Jewish race in all the territories over which their barbarous rule has been extended the most elementary human rights, are now carrying into effect Hitler's oft-repeated intention to exterminate the Jewish people in Europe. From all the occupied countries Jews are being transported in conditions of appalling horror and brutality to eastern Europe. In Poland, which has been made the principal Nazi slaughterhouse, the ghettos established by the German invader are being systematically emptied of all Jews except a few highly skilled workers required for war industries. None of those taken away are ever heard of again. The able-bodied are slowly worked to death in labor camps. The infirm are left to die of exposure and starvation or are deliberately massacred in mass executions. The number of victims of these bloody cruelties is reckoned in many hundreds of thousands of entirely innocent men, women, and children.
The [Allied] Governments and the French National Committee condemn in the strongest possible terms this bestial policy of cold-blooded extermination. n7
This plain denunciation should relieve us from the claim that Churchill failed to provide any warning. To be sure, we may be unsettled by the implied parallel drawn between the fate of deported Jews and prior policies of euthanasia - the 1942 statement speaks of the execution of the sick and feeble and seems to suppose, mistakenly, that not even the Nazis would murder the able-bodied who might be used in war industries. But with these statements in hand, it seems evident that if we hold Churchill to a particular duty to warn European and Russian Jewry of its fate - apart from other available voices in the West - there was warning of a kind by August 1941 and a plain and unvarnished expose of the intentions of the Nazis by December 1942.
I agree with Kent Greenawalt that the decision whether to disclose intelligence during a war in order to warn a vulnerable population, at the possible cost to sources and methods and the military effort, presents a difficult question of situational ethics. n8 If there is a duty to disclose, it must be for some good purpose. There are a host imaginable. One could hope to inspire the civil [*572] ian resistance and underground in occupied territories, or remonstrate with the German public to topple their leaders, or even to call upon members of the German government who may have retained a sense of conscience. One could have hoped to persuade neutral countries to enter the war, although the reasons that underlay neutrality were complicated, as we now know. Perhaps the strongest purpose is to tell the truth to the victims - to allow them to plan their actions, even if all alternatives were desperate, and to spare them the added insult of Hitler's deceits, where extermination was disguised as relocation and execution was carried out as a charade of camp hygiene.
But there are also reasons not to disclose. One is, of course, to avoid prejudice to the efficacy of intelligence. If the capacity to overhear the enemy will have great strategic advantage, and disclosure will cause him to successfully encrypt his communications, then nondisclosure may be a hard but arguable moral choice. The moral choice becomes more tractable if the information is already well known to the local victims. An answer would require a close examination of the record of local alarms, for the Nazis went to great lengths to attempt to create fictions to lull their victims. The confusion of war and the familiar use of atrocity stories in wartime as a form of rhetoric also may have led victims to disbelieve their fate until it was too late. But it may well be that at some point, the Jews of the shtetls of Eastern Europe had no illusions about their treatment at the hands of the Nazi occupiers and simply lacked any place to flee.
A third rationale for nondisclosure would be the most chilling. One wishes to avoid the thought in the absence of confession, but it is possible that a western democratic wartime leader may have hesitated to dwell upon the Nazis' malicious intentions towards the Jews because of doubts about the range of his audience. Many western countries were still prey to a polite and even impolite anti-Semitism. Lincoln transformed the Civil War into a cause to end slavery only in the middle of the war. In a period when there was quite real, even if muffled, anti-Semitism in many places, even a philo-Semitic Churchill could have resolved that announcing one of the major war aims as preventing the slaughter of the Jews would not have mobilized all western publics in favor of the war effort. It is a chilling Goldhagenian supposition, yet it comes to mind.
Let me address for a moment the arguable sources of legal duty. In international law, the distinction between law and morals [*573] is often elided, despite analytic philosophers who prefer a formal theory of law. International law is eclectic in its sources, and morals can gradually transform into law. Look, for example, at the Hague Conventions. The famous 1899 and 1907 conferences, convened by Czar Nicholas and Teddy Roosevelt, respectively, gave rise to the Hague Regulations respecting the Laws and Customs of War on Land. n9 The famous Martens Clause says the following:
It has not... been found possible at present to concert regulations covering all the circumstances which arise in practice;
Until a more complete code of the laws of war has been issued, the high contracting parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience. n10
The International Court of Justice will occasionally draw upon the ideal of public morality as a source of law, and this too is the case in the tradition of the law of war. It is a useful caution, though, to remember that international law must reflect state practice if it is to remain a distinct category and retain its mandatory quality.
A duty to warn may follow from the undertaking of collective security - that even in a Westphalian system of states, there is a duty toward foreign populations to help them avert disaster. It is surely a defeasible duty; the burden of protection or warning must be one the neighbor can bear. And Stalin's connivance in the German-Soviet non-aggression pact of 1939 n11 deprives the Soviets of any easy reliance on the prior obligations of the League of Nations. But the purpose of collective security is, ultimately, to protect populations as much as juridical states, and the alliance that arose between West and East upon the German invasion of Russia [*574] had, as its purpose, not simply the survival of political states, but the survival of innocent human beings.
Did any circumstances give Britain a particular burden in the issue of warning? We could suggest a theory of "pluralist irredentism." In the nineteenth century and the inter-war period, there were numerous minority treaties for the protection of co-nationals abroad. It was a common belief that a nation was entitled and even obliged to act on behalf of its co-religionists and co-nationals. The nation was a term often used to denote a people, a political category almost as salient as the state itself. The redrawn boundaries of World War I trapped new minorities within the polities of self-determining peoples, and, even in the period before universal human rights were recognized in international law, the inter-war treaty structure permitted an irredentist form of humanitarian remonstration on behalf of co-nationals.
The United Kingdom is a land of many peoples - by birth and by emigration. A duty towards co-nationals was an arguable source of British obligation towards European and Russian Jews, for Britain had a substantial Jewish population. England expelled the Jews in 1290, but Cromwell welcomed them back, and in the nineteenth century, Jews were relieved of the bulk of their civil disabilities and were assimilated into English citizenship. And so, just as Christians in Turkey were once seen as deserving the special succor of European Christian powers, England, as a partially Jewish nation, might have seen itself as having a special duty to the Jews of Europe.
Secondly, the control of Palestine presented England with a particular dilemma. England administered Palestine not in its own name, but as a mandatory power of the League of Nations. The conflict between Jews and Arabs in the area was difficult to contain, and despite the desperate plight of Jews in Europe, a 1939 British White Paper proposed to limit Jewish immigration to Palestine. This limit, one could argue, placed Britain in a more delicate position than a simple bystander amidst the events in Europe - for, absent Palestine, there was no evident place for Jews to go. The political role of Britain in limiting the emigration of European and Russian Jews to Palestine could be perceived as giving rise to a more than general moral and legal duty - to ensure that all possible means were taken for the protection of these Jewish men, women, and children during the war.
A third circumstance is one of providential capacity. As an island kingdom, Britain possessed a fortuitous ability to resist [*575] Hitler's advancing armies. She had to suffer through the War in the Air, and there was always an ominous threat of invasion. But Britain's off-shore asylum has always made her a natural counterweight to European hegemones. One could argue that Britain might have a particular duty of rescue or warning because of her extra capacity to resist Hitler's forces.
Fourth is an argument about proportionality, though this is not particular to Britain. Even if the issuance of a warning might have had some military cost, that is not the end of the matter. Proportionality in warfare says that incidental damage to civilians from the use of force must be reasonable, in relation to the military value of a target and the overall advantage in the campaign. We could think of a mirror idea of proportionality - the relation between disadvantage to the war effort and the damage to civilians. It may not end the debate to say that the protection of British intelligence describing the threat to European Jews would have preserved some military advantage for the Allies. Perhaps it is also necessary that the cost to civilians was proportional - that the military advantage was of an appropriate scale and importance, compared to any safeguard the Jews of Europe and Russia might have gained from detailed warning. Of course, we must not forget that this was, truly, a war between barbarism and civilization, and that losing the war would have entailed an unacceptable cost to all democratic peoples, including all Jews. Judgments must also be evaluated in light of the perspectives of the time and place. In 1941 neither Churchill, Franklin Roosevelt, nor Joseph Stalin could have complete confidence, though they may have had prayerful faith, that Germany would lose the war. Still, one can put the question of proportionality as a standard of judgment to be satisfied. Simply to say that there would have been some advantage to the Germans in knowing of Allied interceptions is not automatically decisive.
Finally, in trying to think about the moral problem of warning, there is a complication that arises from the Nazis' own rhetoric on the Eastern front. When the declassification of the British intelligence files first occurred, it was noted that the Einsatzgruppen and the Ordnungspolizei reported their massacres by using a masking vocabulary. They spoke of them as "actions according to the usage of war." The killing of the Jews was not openly trumpeted after the few intercepts were obtained; rather, the German reports categorized them as actions consistent with the practice of war. The Nazi machine was hoping to mask the slaughter, in the [*576] fog of a bitter military front. Deaths occur in many wartime scenes, from hunger, disease, and displacement, as well as hostile military action. As Martin Gilbert has written, the Nazis supposed that the cover of the war in the East would allow the traceless disappearance of a great many unwanted peoples. n12
One could argue that there is a duty to maintain the intelligibility of the law of war. The Nazi Einsatzgruppen subverted the categories of war, reporting that their slaughters were legal executions against partisans and bandits. Perhaps this imposes a particular burden to ensure that the meaning of the law of war is not destroyed. In any conflict, the limitations on how a war is conducted depend on the advantages of reciprocity. The war on the Eastern front was savage, with no application of the rules of Geneva, for example, in regard to Russian prisoners of war. Only the defeat of the Nazi war machine could restore the law of war to its former authority. But in the course of this effort, was there no virtue in dispersing the Nazis' Nacht und Nebel, and plainly announcing that their "usages of war" amounted to cold-blooded murder?
Our discussion about Churchill may seem unduly anachronistic, risking judgment of a brave generation by descendants who know how the war came out, who can rest knowing that fascism was defeated and democracy triumphed. But the underlying moral issues are still present in our own generation of ravaging civil conflicts. One need only look at the genocides in Rwanda and Bosnia. The Churchillian dilemma - whether to attempt all possible interference with genocidal action, even at the cost of other worthy public purposes - was felt by United Nations peacekeepers in Bosnia. The peacekeepers in Bosnia, during the conflict, argued that there was a limit to their abilities to rescue civilians or to interpose themselves, even in the safe areas established by U.N. resolution. The only workable mandate was to deliver humanitarian aid, it was insisted. UNPROFOR balanced one humanitarian mission against another, supposing that it was more important to get food to the mountain villages in the winter time than to directly oppose Serbs, Croats, or Muslims engaged in ethnic cleansing in ways that might antagonize the parties and jeopardize the U.N.'s presence. In Rwanda, the Security Council also concluded that it was not able to mount a timely intervention as the genocide proceeded, in light of other commitments and the shortage of [*577] troops and equipment.
A duty to warn remains interesting to us from the fact that even now a duty to warn and to name is often seen as giving rise to a duty to act and intervene. In the spring of 1994 the U.N. force in Rwanda was ordered to withdraw from Kigali on the ground that UNAMIR had no mandate to stop a civil conflict. In a visit to Rwanda in 1997, the American Secretary of State announced that in the future we will never hesitate to name a genocide immediately. We should feel able to do so, she said, because the act of naming does not necessarily entail a duty to use military force to stop the killings. One may use other means, without soldiers - diplomacy, denunciation, or economics. Perhaps we are, at root, not persuaded. The duty to warn and the duty to name may still seem controversial because it arguably gives rise to a responsibility to intervene, by all means at hand.
n1. Winston Churchill, The Atlantic Charter (Aug. 24, 1941), reprinted in 6 Winston S. Churchill: His Complete Speeches, 1897-1963, at 6472 (Robert Rhodes James ed., 1974).
n2. Id. at 6474.
n4. Winston Churchill, German Executions of Hostages (Oct. 25, 1941), reprinted in 6 Churchill, supra note 1, at 6498.
n5. Winston Churchill, A Warning to Japan (Nov. 10, 1941), reprinted in 6 Churchill, supra note 1, at 6502-03.
n6. Id. at 6503.
n7. German Policy of Extermination of the Jewish Race, 7 Dep't St. Bull. 1009 (Dec. 17, 1942), reprinted in 5 Documents on American Foreign Relations: July 1942-June 1943, at 179 (Leland M. Goodrich & Marie J. Carroll, eds. 1944).
n8. See Kent Greenawalt, Secret Knowledge of Genocide: British Failure to Disclose the Killing of Jews in 1941, 20 Cardozo L. Rev. 549 (1998).
n9. Convention respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 53, 36 Stat. 2277, 2308.
n10. Annex to the Convention: Regulations respecting the Laws and Customs of War on Land, pmbl. paras. 6-8, 36 Stat. 2277, 2279-80, 1 Bevans 631, 632-63, reprinted in 1 The Proceedings of the Hague Peace Conferences, The Conference of 1907, at 620-31 (1920).
n11. Treaty of Non-Aggression Between Germany and the Union of Soviet Socialist Republics (Molotov-Ribbentrop Pact of 1939), Aug. 23, 1939, reprinted in 7 Documents on German Foreign Policy 1918-1945, Ser. D, at 245 (U.S. Dept. of State 1956), also in Nazi-Soviet Relations, 1939-1941, Documents from the Archives of the German Foreign Office, at 76 (James Sontag & James Stuart Beddie eds., 1948).
n12. See Martin Gilbert, The Holocaust: A History of the Jews of Europe During the Second World War 175 (1985).
Prepared: February 8, 2002 - 5:02:29 PM
Edited and Updated, March 13, 2002
Philosophy of Law