By Dr. Rafael Medoff
The effort to prosecute Sudan’s president for his role in the Darfur genocide is running into opposition from China, Russia, and other governments. It’s sadly reminiscent of the 1940s, when some U.S. government officials tried to prevent the prosecution of many Nazi war criminals.
The prosecutor at the International Criminal Court, in Paris, announced July 14 that he has asked the court to issue a warrant for the arrest of Sudanese leader Omar Hassan al-Bashir. The charges against al-Bashir will include genocide, torture, mass expulsion, and rape, in connection with his government’s sponsorship of the Arab “Janjaweed” militias that have murdered hundreds of thousands of innocent people in Darfur in recent years.
As soon as the prosecutor’s request was publicized, al-Bashir’s political allies swung into action. The African Union complained about “the misuse of indictments against African leaders.” The Arab League accused the prosecutor of “interfering in Sudan’s affairs.”
Russia and China, for their part, have begun lobbying the United Nations Security Council to block the indictment. China is the largest purchaser of Sudanese oil as well as al-Bashir’s largest military supplier, and Russia, too, enjoys extensive military and economic relations with the Sudanese. Moscow and Beijing may be legally complicit in the Darfur genocide–giving them plenty of reason to try to save al-Bashir from prosecution.
During the Holocaust, too, there were those who wanted to prevent some war criminals from being prosecuted.
In 1942, President Franklin Roosevelt pledged that all Nazi war criminals would be punished. The following year, the Allies established a War Crimes Commission, and former diplomat Herbert Pell was appointed as the U.S. representative to the commission.
But Pell soon discovered, to his dismay, that the State Department claimed the U.S. had a legal right to prosecute only those war crimes that were committed against citizens of Allied countries–excluding atrocities committed against other civilians. That would have spared most Nazi killers of Jews.
This was consistent with the mindset among some U.S. officials that going easy on postwar Germany could help turn Berlin into America’s ally.
Because Pell favored prosecuting all Nazi war criminals, the State Department repeatedly tried to undermine him. State even sent a staff member to shadow Pell at commission meetings and secretly report back on what he was saying behind closed doors.
Josiah E. DuBois, Jr. and other officials of the U.S. government’s War Refugee Board came to Pell’s defense and challenged the State Department’s position, but to no avail. In late 1944, with FDR’s acquiescence, the State Department pushed Pell out of his job by claiming there was no room in its budget to pay him. Pell offered to work for free; State said that would be illegal.
Pell finally turned the tables by going public. With the help of the Emergency Committee to Save the Jewish People of Europe (better known as the Bergson group), Pell held a press conference to urge punishment of “every Gestapo member who has caused suffering” and to denounce the State Department for leaving his proposals “to gather dust in the files of its legal adviser.” The front-page news coverage of the scandal embarrassed the State Department into reversing its position and agreeing that Nazi killers of Jews –from all countries– should be prosecuted.
Sadly, however, those who wanted to go easy on war criminals had the last laugh. By the time the war ended, there was a widespread sentiment among U.S. officials that repairing America’s relations with Germany, especially with the Cold War looming, was more important than prosecuting Nazis. Thus, while the top Nazi killers were tried at Nuremberg, many thousands of other Nazi war criminals were either not prosecuted or were given sentences “light enough to please a chicken thief,” in the words of Nuremberg prosecutor Josiah E. DuBois, Jr.
One of the architects of this slap-on-the-wrist policy was the U.S. High Commissioner in Germany, John J. McCloy. He personally pardoned numerous Nazis, including some whom DuBois had prosecuted and convicted. Ironically, it was the same McCloy who, in 1944, as Assistant Secretary of War, had rejected requests to bomb Auschwitz–including requests from DuBois, who at that time was one of the leaders of the U.S. government’s War Refugee Board. McCloy turned down the requests because he opposed, as a matter of principle, the idea of the U.S. military making any effort to rescue Jews from Hitler.
Sixty five years have passed, yet there are still those who can find political, economic, or other reasons to prevent the prosecution of perpetrators of genocide. The spirit of John McCloy lives on today, from Moscow and Beijing to the African Union and the Arab League.