score:4
Explanation:
As the Economist article is indeed quite succinct, it should be read with a bit more context, quote from question in bold:
The prosecution made no attempt to disprove this evidence; nevertheless, the judgment completely ignores it. Such silence unfortunately shows that the Nuremberg Tribunal is only within certain limits an independent judiciary. In ordinary criminal law it would certainly be a remarkable case if a judge, summing up on a charge of murder, were to avoid mentioning evidence on the part played by an accomplice in the murder because the evidence revealed that the judge himself had been that accomplice. That nobody thinks such reticence extraordinary in the case of Nuremberg merely demonstrates how far we still really are from anything that can be called a "reign of law" in international affairs. Both Britain and France are on record as having concurred in the expulsion of the Soviet Union from the League of Nations for its unprovoked attack on Finland in 1939; this verdict still stands and is not modified by anything which has happened since. In 1939 Moscow openly gloried in military cooperation with Germany for the destruction of Poland, "that ugly offspring of the Versailles Treaty," and Ribbentrop in his last plea quoted a cable of congratulation from Stalin as proof that the Soviet Union had not then regarded the war against Poland as an aggression. The contrast between 1939 and 1946 is indeed fantastic, and it is too much to expect that either historians in the future or Germans in the present will share in the current United Nations convention of not seeing it.
Nor should the Western world console itself that the Russians alone stand condemned at the bar of the Allies' own justice. Waging aggressive war is the chief count in the indictment, but it is not the only one. Among crimes against humanity stands the offence of the indiscriminate bombing of civilian populations. Can the Americans who dropped the atom bomb and the British who destroyed the cities of Western Germany plead "not guilty" on this count? Crimes against humanity also include the mass expulsion of populations. Can the Anglo-Saxon leaders who at Potsdam condoned the expulsion of millions of Germans from their homes hold themselves completely innocent?
The result of the Nuremberg trial has been a well-deserved fate for a group of evil men whose terrible guilt has been thoroughly demonstrated for all time; yet the force of the condemnation is not unaffected by the fact that the nations sitting in judgment have so clearly proclaimed themselves exempt from the law which they have administered.
In that context it becomes clear that the article is about the sometimes incongruent concepts of justice and law, especially positive law.
In a war people die and people suffer. That this suffering should be reduced and be really kept to an absolute minimum was formally signed into international agreements before the Tribunal, before the war, and Germany was a signatory of those agreements.
One of the accusations the defendants had to face was that the positive law of these agreements proscribed to keep the killing confined to combatants and to try to spare civilians from the carnage. The Germans often did not do this, especially in the East. Whether with artillery or with bombings from planes; and of course not when the goal of an offensive was reached and the remaining inhabitants then simply lined up for a shooting, or worse. Hence this was a legitimate charge against them.
However, in the case of the allied bombing campaign one can legitimately argue that 1000 bombers over a city dropping their load lead regularly to the loss of lives of quite a substantial number of civilians, some of them even innocent insofar as they might have been not Nazis supporting the war but resistance members or just not that enthusiastic about being a master race killing the Jews and Slavs and conquering to dominate the rest of the world.
The quote therefore refers to all of the cities that the American and British bombs hit and especially those that were quite visibly burned to the ground in very large parts.
That Tribunal had quite a few problems. The tension between teaching a lesson, revenge and justice on the one side and on the other the necessary requirements for a legitimate trial that law can only reign if it is positive law and deals "justice for all". The question is: if Germans have to stand trial for "killing civilians", when and where will those allied be tried that – in some views – did just the same?
Arthur Harris was responsible for the switch from day-time bombing to night-time bombing. While precision targeting was difficult in the former case, its difficulty only increased during the night. To compensate for the loss of precision you have to increase the spread and number of bombs to try to ensure to even hit anything important. Targeting a garrison, an ammunitions factory, a railway hub may be a legitimate target under positive law. If you aim for that and miss and kill a civilian, that might still be legitimate under positive law. If you target just the whole city and accept in advance the collateral damage of a very large part of the civilian population, that seems to clearly contradict that positive law, if not in legalese words then at least in spirit. The terror bombing or "moral bombing" was used as justification for this switch that might have been relatively benign and out of necessity at the beginning.
In the beginning of the bomb war Germany targeted radar stations, airfields. Then one plane got lost, dropped a bomb over the city of London. Britain retaliated by bombing Berlin on a small scale. That enraged Mr Meier (Göring) and Hitler and the Battle of Britain switched to targeting factories in cities, and the cities themselves. Both sides could now claim "but they did it first". What 'first'? London and Berlin, Coventry and Dresden, the main observation is that both sides bombed cities of the enemy with either low precision to hit targets deemed legitimate in any case or with higher precision if the target is just the city and its inhabitants. Both sides killed a large part of the civilians in cities that were bombed.
Where to draw the line on that? It is wholly irrelevant to cite international agreements defined and signed in the decades after the tribunal that made things more clearly defined and explicitly illegal and a war crime.
The whole point in the Economist article is that on this account of targeting civilians both sides did comparable things but only side had to stand trial.
The article argues that the tribunal had its problems. Among them that in the mass of accusations some of the actions were not unique to the German side. To have faced less criticism and gain more legitimacy the tribunal would have needed a better preparation, a more tightly argued exposition and better explanations in some parts.
Given the line from the article: "Among crimes against humanity stands the offence of the indiscriminate bombing of civilian populations": this accusation probably should not have been part of the tribunal from the start.
Or as found in another answer here:
What this meant in practice was that international humanitarian law offered no protection against the aerial bombardment of civilian areas in enemy territory during World War II. It could not be illegal!
Whether it violates Nulla poena sine lege and constitutes ex postfacto law
Robert A. Taft, at the time a U.S. Senator from Ohio, asserted that the Nuremberg Trials following World War II were based on ex post facto law because the Allies did not negotiate the London Charter, which defined crimes against humanity and created the International Military Tribunal, until well after the acts charged. Others, including the International Military Tribunal, argued that the London Charter merely restated and provided jurisdiction to prosecute offenses that were already made unlawful by the Kellogg-Briand Pact, the Covenant of the League of Nations, and the various Hague Conventions.
And yet, in the trial and for the trial it was defined as a crime. Morally it might be wrong in any case to bomb a city. Legally it was suddenly part of the trial. And only one party was prosecuted for what everyone did.
That 'things' judged as war crimes committed by Germans and other participants during the war were prosecuted is a good thing. That those committed by the allies were never prosecuted is a bad thing and stands out as an injustice.
This tu quoque argument raised by the defendants and the Economist is of course an informal fallacy, if used to exonerate the German side. There were quite a number of actions unique to the Germans.
In procedural terms, the statute largely adopted Anglo-Saxon legal tradition. Corresponding provisions on the rules of procedure in the statutes6 enabled the court to fall back on minutes of the prosecuting authority from the questioning of witnesses and informants (so-called affidavits). These persons did not have to be heard by the court itself. The judges could reject evidence if it seemed "insignificant" to them. Not only should these rules ensure the speedy conduct of the trials, but the accused should also be deprived of the opportunity to prolong the trial by accusing the Allies of war crimes as well. WP: Londoner Statut
Or to quote from the Wikipedia section of criticism relating to the trials:
Chief Justice of the United States Supreme Court Harlan Fiske Stone called the Nuremberg trials a fraud. "(Chief U.S. prosecutor) Jackson is away conducting his high-grade lynching party in Nuremberg, ... I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas", Stone wrote.
Jackson, in a letter discussing the weaknesses of the trial, in October 1945 told U.S. President Harry S. Truman that the Allies themselves "have done or are doing some of the very things we are prosecuting the Germans for. The French are so violating the Geneva Convention in the treatment of prisoners of war that our command is taking back prisoners sent to them. We are prosecuting plunder and our Allies are practising it. We say aggressive war is a crime and one of our allies asserts sovereignty over the Baltic States based on no title except conquest.
The final judgement would not have been much different if the tribunal concentrated on those acts clearly agreed upon as illegal before they were committed. The final judgement would not have been much different if the tribunal concentrated on those acts that were unique in nature or in scale to the German side.
Or to rephrase the Economist: Among crimes against humanity stands the offence of the indiscriminate bombing of civilian populations. The Americans who dropped the atom bomb and the Americans and British who destroyed the cities of Germany with indiscriminate bombing cannot plead "not guilty" on this count.
To be clear: The above does not even discuss a perceived "necessity" of bombing anything. It does not judge either side for using bombs or any attempt to justify how the war developed or what strategies were employed. It explains one sentence from a newspaper that criticises how the Nuremberg trials were conducted in one detail from the trials.
Upvote:3
Aside from Dresden, another German city that was essentially destroyed in a single series of air raids, and was likely an inspiration for the Economist comments, was Hamburg. Estimated deaths were around 40,000. The bombing of Hamburg was the first air raid that resulted in a firestorm: a fire so widespread and so large that it creates hurricane force winds that pull anything nearby into the fire. Firestorms are so intense that they suck the oxygen out of bomb shelters, so taking cover is not protection. Dresden also experienced a firestorm... much of the destruction of Dresden was the result not so much of the bombs, but the firestorm that resulted. In both Hamburg and Dresden, the fire burned itself out eventually, as a firestorm is essentially impossible to extinguish.
In the Pacific, Japanese cities were particularly vulnerable to fire attack, culminating in the single most destructive air raid on a city, the fire raid on Tokyo on March 9-10, 1945. 16 square miles of the city were destroyed (about four times the area destroyed by the atomic attack on Hiroshima), with death estimates between 100,000 and 130,000.
Area bombing of a city, rather than specifically targeting military and industrial areas, became a policy of the RAF, partially because the night bombing they favored was not particularly accurate. Later in the war, weapons production was scattered across many small cottage industry sized operations, so area bombing was the only practical way to attack those.
Given that a number of British cities had been bombed by Germany earlier in the war, and the V weapon attacks later in the war were very indiscriminate, there may have been a retribution aspect as well, although this was never codified as an official explanation.
Harris's stated reason for area bombing was to demoralize the population. Ironically, the British should have known that this goal wasn't achievable, for the simple reason that German bombing had not demoralized their population. If anything, the blitz made them angry.
Note also that towards the end of the war, the area bombing of German cities began to draw widespread criticism as unnecessary and uncivilized. After the war, Harris was was not awarded a peerage, which had been granted to all other officers of similar high rank, a snub that was attributed to the revulsion felt by the British public towards area bombing immediately after the war. Harris had been a primary proponent of area bombing during the war.
The Economist comments tend to reflect that sentiment.
Upvote:6
TL; DR*
Let's begin with the main question. The Economist article you cite is referring to the allied strategic bombing campaign.
The answer to your question:
What cities does the highlighted part refer to?
is straightforward: "pretty much all of them". There were few towns and cities in Germany that escaped unscathed from that campaign.
Now, it is worth reading that quote from that Economist article in context:
"Nor should the Western world console itself that the Russians alone stand condemned at the bar of the Allies' own justice. Waging aggressive war is the chief count in the indictment, but it is not the only one. Among crimes against humanity stands the offence of the indiscriminate bombing of civilian populations. Can the Americans who dropped the atom bomb and the British who destroyed the cities of Western Germany plead "not guilty" on this count?"
Which begs the question, was the allied strategic bombing campaign really the
"... indiscriminate bombing of civilian populations"?
While there were some RAF units that trained for specific precision bombing raids (like 617 Squadron, for example), the practical limitations of the technology of the day made it almost impossible for most units to deliver anything like precission bombing.
By 1942, the RAF could use the Gee radio navigation system to locate German towns and cities. Pathfinder squadrons could fly ahead of the main force and attempt to mark targets within those towns and cities for the main bomber force.
However, bombs falling from 14,000 feet were subjected to buffeting by winds and air currents for a long period as they fell. The analogue computer bomb sights of the 1940s had no way to compensate for this problem. Add to this the problems of cloud cover over the target, enemy anti-aircraft fire, searchlights, night-fighters etc., and it is hardly surprising that most bombs actually missed their targets.
Since it was effectively impossible to consistently hit anything more precise than whole areas of cities, many of the bombs dropped by the allies did hit civilian areas. But we must recognise that the civilians in those areas were not the target of the missions.
However, planners in the Air Ministry were happy to take advantage of the collateral damage from these raids and its effect on the morale of those civilian populations. An Air Staff paper, dated 23 September 1941 had defined the aim of attacks on urban centres in the following terms:
“The ultimate aim of the attack on a town area is to break the morale of the population which occupies it. To ensure this we must achieve two things: first, we must make the town physically uninhabitable and, secondly, we must make the people conscious of constant personal danger. The immediate aim, is therefore, twofold, namely, to produce (i) destruction, and (ii) the fear of death.”
(Also quoted in an extract from the official account of Bomber Command by Arthur Harris, 1945 (National Archives Catalogue ref: AIR 16/487)
Thus the evidence shows that while the bombing was targeted, and not indiscriminate, the effects on civilian populations were recognised - and even welcomed - by military planners during the war.
So was this legal?
The fundamental problem was that the treaties that governed th conduct of nations at war had simply failed to keep up with the technology of the day.
The first Geneva Convention was adopted on 22 August 1864. Future agreements and conventions built upon this beginning.
By 1939, the key treaties that governed the conduct of war were the Hague Conventions of 1899 and 1907. Neither of these dealt with aerial warfare. (There had been an attempt in 1923 to forge an agreement for the Hague Rules of Air Warfare, but - for a number of reasons - this had failed.)
The result was that the only legal protection for towns and cities in 1939 was that given by the 1907 Hague Convention. Specifically
(my emphasis)
And that was about it!
What this meant in practice was that international humanitarian law offered no protection against the aerial bombardment of civilian areas in enemy territory during World War II. It could not be illegal!
Your question explicitly mentions the example of Dresden, so I'd like to examine the evidence in a little more detail.
Dresden is often cited as an example of an allied 'war crime'. As I explained above, it certainly couldn't be a war crime, as the laws governing aerial warfare and the aerial bombardment of cities simply didn't exist during the second world war. But was it a crime against humanity?
Did the raids on the City of Dresden on 13/15 February 1945 amount to the indiscriminate bombing of a civilian population?
]
"Dresden, partial view of the destroyed city center on the Elbe to the new town. In the center of Neumarkt and the ruins of the Frauenkirche." [Image source Wikimedia commons]
It is certainly true that Winston Churchill was troubled by the raid. There is no suggestion that he considered the raids to be either a war crime or a crime against humanity, but it is clear that he felt the raids undermined the allies claim to moral superiority over the axis powers. In a memorandum to the Chiefs of Staff Committee and the Chief of the Air Staff dated 28 March 1945, Churchill wrote:
"... The destruction of Dresden remains a serious query against the conduct of Allied bombing. I am of the opinion that military objectives must henceforward be more strictly studied in our own interests than that of the enemy."
Now, a cynic might reasonably make the observation that Churchill was a consumate politician who would have been aware of the contoversy that would surround the raids, and so would want to distance himself from them. Indeed, that may well actually be true. In any event, the bombing of Dresden did mark a turning-point in the allied strategic bombing offensive against Germany.
In recent years, some historians have gone further. Donald Bloxham, for example, argued that the bombing of Dresden actually constituted a war crime. Bloxham presented his case in Chapter 9 of Firestorm: The Bombing of Dresden 1945().
His argument appears to have three main points at its core:
In fact, the first two questions were examined in some detail, first by an inquiry conducted at the behest of U.S. Army Chief of Staff, General George C. Marshall, and later by the US Air Force Historical Division (USAFHD). The Marshall report analysed the circumstances of the raid, and stated the raid was justified by the available intelligence [Taylor, 2004, p196]. The U.S. Air Force Historical Division report similarly concluded that the raids were militarily necessary, and fully justified, based on the following points:
So, considering the evidence, was Dresden really a city of no military importance?
In short, no. In his 2004 book, Dresden: Tuesday, 13 February 1945, Frederick Taylor observes that:
According to the 1944 handbook of the German Army High Command’s Weapon Office, the city of Dresden contained 127 factories that had been assigned their own three-letter manufacturing codes by which they were always referred to (for example, Zeiss-Ikon = dpv; Sachsenwerk = edr; Universelle = akb). ... An authority at the Dresden City Museum describes the handbook's code list as 'very incomplete', and it did not include smaller suppliers or workshops that were not assigned any codes. Dresden was ranked high among the Reich’s wartime industrial centres.
The military equiment being manufactured in Dresden in February 1945 included parts for the V1 'Doodlebug' flying bomb and the EZ 42 gun-sight which was to be used on the Me 262 and the He 162 [Uziel, Daniel, Arming the Luftwaffe: The German Aviation Industry in World War II, McFarland, 2012, p256].
Indeed, the 1942 Dresdner Jahrbuch (Dresden Yearbook), quoted by Taylor in the book cited above made the point explicitly:
Anyone who knows Dresden only as a cultural city, with its immortal architectural monuments and unique landscape, would rightly be very surprised to be made aware of the extensive and versatile industrial activity, with all its varied ramifications, that make Dresden one of the foremost industrial locations in the Reich.
So it seems clear that these industrial plants were legitimate military targets.
Furthermore, Dresden was a vital link in the German rail network. In February 1945, 28 military transports a day passed through the city transporting troops ans tanks to the front line. These railway lines, and their associated transport infrastructure, also made Dresden a legitimate military target.
In addition, we know that Dresden had been designated as a defensive military strong-point against the Russian advance from the east by the German High Command. Once again, this would make the city a legitimate military target.
The anti-aircraft batteries in and around the city meant that it was not 'undefended'.
So there are good reasons to argue that the city was a legitimate military target. While the RAF and USAF might do their best to target only those areas of the city that were military objectives, the technology of the day meant that in practice much of the city would be destroyed.
But is it reasonable to argue that the war was almost over, so the bombing was actually unnecessary?
Well, certainly given 20/20 hindsight one might try to make that case (indeed, many have done just that). But in February 1945 I suspect that the situation would have appeared much less clear.
The allies had suffered significant casualties during the Battle of the Bulge which had ended just a few weeks earlier. German jet fighters like the Messerschmidt ME 262 remained a threat in the air, with the potential to change the balance of power in the battle for air superiority over Europe. V1 flying-bombs and V2 missiles were still falling on southern Britain and the areas of Europe liberated by the allies.
Viewed from that perspective, it might well have been far from obvious that the end of the war was imminent. Indeed, when seen from that perspective it would probably have been regarded as gross negligence not to have attacked a strategic target like Dresden, where the military objectives might significantly degrade the effectiveness of the German military machine, and in doing so, shorten the war.
So, going back to the article in The Economist and the question:
"Can the ... British who destroyed the cities of Western Germany plead "not guilty" on this count?"
I think on the evidence presented here, the answer to that question would be "yes".
TL; DR - "Too long; Didn't read
Upvote:22
There was in fact a general Anglo-American bombing campaign against German cities late in the war which we (or at least I) don't often hear about. However, it was carried out within the Geneva Conventions of the day.
It should be noted here that the American part did exist too. The entire European bombing campaign was generally a coordinated effort, with Americans taking the daylight runs, and the UK taking the nighttime runs. I suspect the person in question left the Americans out of the second part of his counter-indictment only because he'd already felt like they were adequately included in the first part. This was not a "British" campaign, it was an Allied campaign.1 Any modern attempts to portray it as a wholly British activity seem quite suspect.
Not only was Dresden not alone, by the RAF's accounting it didn't even make the top 10 of most destroyed German cities. In order, those would be Bochum (83%), Mainz (80%), Hamburg (75%), Kassel (69%), Hagen (67%), Düsseldorf, Mannheim (both 64%), Cologne, Dessau (both 61%), Hanover, Bremen (both 60%). In terms of sheer area destroyed, Hamburg was far and away the "winner".
And yes, the historical record is that, while there were good practical effects on German weapon production, part of the intent of all this was terror.
Here's an excerpt from a declassified war dispatch from Sir Arthur Travers Harris, Chief of RAF Bomber Command during the period in question:
The ultimate aim of an attack on a town area is to break the morale of the population which occupies it. To ensure this, we must achieve two things: first, we must make the town physically uninhabitable and, secondly, we must make the people conscious of constant personal danger. The immediate aim, is therefore, twofold, namely, to produce (i) destruction and (ii) fear of death.
Here's a picture of what Cologne looked like in April of 1945.
None of this was really against the Hague Warfare Conventions of the day. The only serious practical restriction in place at the time was that you were supposed to try to avoid hitting things like hospitals and cathedrals2. Notice in the above photo of destruction that the Cathedral is still standing. That shows you they were in fact making an effort to follow the conventions. Deliberate indiscriminate attacks on civilians were not explicitly outlawed until 1977.
1 - I suppose you could argue Stalin's Russia wasn't directly participating, but he was certainly aware it was going on, and I have trouble seeing where he'd have been anything less than encouraging about it.
2 - This helps explain the odd line "Nobody steps on a Church in my town" from 1984's Ghostbusters. The people who wrote that movie were of an age where destroying a church was The Line for war crimes, but young enough to appreciate that this was a silly place to draw the line.