The Dallas Examiner
As America pursued justice against the Nazis after their WWII surrender, the nation remained caught in its own tangled moral web, proposed Dr. Graham Cox of the University of North Texas History Department during his presentation, Jim Crow and the Nuremberg Trials.
During the Sept. 28 program at The Dallas Holocaust Museum, the educator pointed out that while the Nazi regime collapsed and faced charges of crimes against humanity throughout 1945 and 1946, those seeds were sewn years before with a social hierarchy based on race, religion and sexuality – not unlike the system in place in the U.S. at the same time.
The lecture was part of the museum’s exhibit, Fighting for the Right to Fight: African American Experiences in WWII, on display until Jan. 26, 2018.
Cox walked the audience through how U.S. policymakers were able to seek justice for Holocaust victims in Germany without additionally addressing racial inequality at home. It was an era when America was still engaged in limiting where Jewish families could live; the last Japanese American internment camp remained open until March 1946 and, most notably, “separate-but-equal” laws were still in full swing against Black citizens.
The contradiction troubled leaders in Washington, D.C., as early as October 1942, when President Theodore Roosevelt announced that Germany would be held accountable for war crimes, a failed tactic intended to slow their military hostility.
“We almost never got to this trial right here,” Cox said as he gestured to a black and white photo of infamous Nazi top brass in court upon a large display screen. “And there are reasons why it didn’t almost happen. One of the biggest reasons, one of the road blocks that was overcome … (was) Jim Crow segregation in the United States. It became a roadblock to seeking justice for the Holocaust throughout the entire year of debate about how we were going to do it.”
At issue was the fact that leaders of wartime Germany needed to be held accountable for the severe treatment of their own citizens, but there was no clear war crime code at the time. As a result, the U.S. had to craft those laws.
Herbert Pell, former U. S. Representative and ambassador to Hungary, was appointed by FDR in the summer of 1943 to the United Nations War Crimes Commission.
“As much as anyone on planet Earth, he was responsible for making this trial happen, and the vast majority of human beings … aren’t aware of how important he was,” Cox said about the appointee.
Pell not only had to encourage other nations to approve the war crimes laws once they were written, but he also had to fight against his own government to make sure the trials even occurred. As an example, in January 1944, his assistant in London, Lawrence Preuss, told him he would not be allowed to gather evidence to be used during the trials because, in Cox’s words, “The crime is too vast; it would be too hard,” he affirmed. “I’m not making it up. Of course, that’s one of the reason’s you have to do it; it’s so vast.”
Wealthy, older and socially established, a fight for the trials was something the appointee did not need to take on. Regardless, Pell was in Hungary at the point the Nazis invaded the country; in his view, making sure the Nuremberg trials occurred was the most important thing he could do in his life, Cox explained. Still, it was the Jim Crow system that threatened to derail the process.
“There’s this underlying thing here, that if we create international law that says racial persecution is an international crime on its own, it might cause the United States a problem.”
After prolonged foot-dragging in Washington, Roosevelt’s Secretary of War, Henry Stimson, was the man who called out the nation’s moral quagmire. The professor paraphrased a memo Stimson wrote to FDR announcing, “I have great difficulty in finding any means by which we can convict those responsible for excesses committed within Germany. Such course would be without jurisdiction precisely the same way that any foreign court would be without jurisdiction to try those who are guilty of, or condone, lynching in our own country.”
“He finally puts it on paper,” Cox said. “The only way you’re going to have a trial and get them for the Holocaust is to find a way to say racial, religious, political persecution is a crime when the Nazis commit it, but not when the United States commit it – and by extension, other allied countries.”
Murray Bernays, an attorney in the War Department and himself a Jewish man, also recognized that there was a problem since minorities were treated differently in America. His solution was to charge German leaders with “aggressive war” – persecution being a smaller part of a larger war conspiracy – since other nations only entered the war after being attacked. The aggressive war prosecution became the method to bring the Nazis down while also maintaining America’s own segregated society.
Meanwhile, Robert Jackson, the American prosecutor for Nuremberg, is also significant for ensuring that the trial occurred. However, Jackson also helped hammer out a code that protected the United States for supporting a similar social environment to that of Nazi Germany, the professor expressed.
On Aug. 8, 1945 – in between the dropping of two atomic bombs over Japan that killed thousands of civilians – Allied powers signed a law code, The London Charter, that would bring war criminals to trial, as Americans grew impatient with how long the trial was taking to come about after German surrender. Photos and stories of concentration camps were becoming more widely known and the country wanted the Nazis to pay.
Jackson published an article around that time touting that the worst crime the Germans committed was “aggressive war,” rather than genocide, Cox noted.
“But he added in this article,” the historian read, “‘Another significant principle in this agreement is that racial or religious persecution by a government against its own people, under some circumstances, may rise to the magnitude of crimes against international society.’”
Cox paused to ponder, “There’s circumstances where that’s not a crime?”
He continued, confirming that few noticed the phrase “under some circumstances” because the charter was indeed going after the Nazis for their deeds. But, he added, that wording left just enough wiggle room to keep America and its allies from themselves being charged by other nations for laws and actions too similar to those of Germany.
The prosecutor, in private communications, himself stated the phrase had to be written as it was “because of our own problems with minorities.”
“Now I don’t mean to say this is a horrible, brutal, racist guy. He wasn’t,” Cox said. “Remember, these folks are working in the context in which the times that they are living.”
The professor asserted that that did not, however, diminish the unfairness of separate-but-equal laws.
With Bernays’ tactic, Johnson’s creative wording and Pell’s dedication, the Nuremberg trials eventually got underway and were indeed a collective global step in the right direction for seeking justice for unjust treatment. Still, Cox argued that the cultural twists did not end with the war crimes tribunal.
Modern insight from those who study military processes suggest that, had the Allies lost, America could have been tried for war crimes. This subject brought up the issue of whether or not Jim Crow laws could have been used by the Axis as additional ammunition for such a trial.
Cox admitted that would have been unlikely. He pointed out that, since America had essentially created a law against war crimes after the crimes were committed – based on previous flimsy but legally binding treaties and agreements – any victorious enemy would have similarly created their own code.
“You have to ask yourself, ‘OK, when the Axis powers win, they’re going to apply their legal position to this.’ Certainly, Germany would not have been unhappy at all with Jim Crow segregation. It was the right thing,” he considered as he employed Nazi racial philosophy.
“There are a lot of books out there, too, about the Pacific war being a race war as well, and the Japanese, I can assure you, had no problem with Jim Crow segregation.”
Just as the professor insisted that the Nuremberg trials were needed, he also put forth the idea that they inadvertently served as an overlooked catalyst for the modern Civil Rights Movement. It was not lost on many Africans Americans that there was a notable level of hypocrisy at play.
“First is was newspaper articles,” said Cox. “‘What irony. We’re seeking justice against them while our own men are lynched here at home?’ Then they read the law code.”
Roy Wilkins, president of the NAACP at the time, wrote of the code “It is thus possible, for any nation to grievously mistreat any minority within its own borders without fear of punishment before a world tribunal so long as the mistreatment is not part of warfare against another nation,” Cox read.
“And he was right,” he stressed of Wilkins’ view. “We sought justice for the Holocaust and simultaneously found a way to protect Jim Crow segregation.”