[THE FOLLOWING IS AN EXCERPT FROM A "REFUTATION" OF MY ARTICLE BY MR. YALE F. EDEIKEN, A PRACTITIONER BEFORE THE BAR OF PENNSYLVANIA.
[MY COMMENTS ARE IN SQUARE BRACKETS. I APOLOGIZE FOR THE REPETITION; I HAVE FOUND THAT CERTAIN SUBTLE BUT VERY IMPORTANT POINTS ARE OVERLOOKED UNLESS REPEATEDLY STRESSED. - CARLOS PORTER.]
by Yale F. Edeiken
[COMMENT: Note the constant introduction of quasi-religious terminology and neologisms: "sin", "denier", etc. ]
fo ren sic adj. 1. of, characteristic of, or suitable for a law court, public debate, or formal argumentation
Among the staple texts of those who deny the Holocaust are the writings of Carlos Porter [!] . One of his articles "War Crimes Trials" can be found on the CODOH website. It claims to discuss the 1907 Annex to the Hague Convention [COMMENT: There are 14 Hague Conventions; see below] dealing with the laws of war, and this essay is so highly regarded in the denier community [!] that it has been cited by deniers [!] as authoritative on the subject of the [!] Hague Convention [!] . A close examination of Porter's work, however, demonstrates that it is inaccurate both as to the text of the [!] Convention [!] and the conclusions that are derived from the distorted citations. This analysis will deal with both of those issues.
It is only fair to judge an author's work by his intentions. In this case Porter informs us exactly what those intentions are:
"This, then, is the Convention which the Germans and Japanese were alleged to have violated in 10,000 trials. What does the Convention say exactly?"
The purpose of Porter's article, therefore, was not to present edited paraphrases but the text, exact and complete
[COMMENT: There are 14 Hague Conventions (actually 17 including those drawn up in 1899), forming a stack of A5 photocopies approximately 1inch thick. Was it my intention to reproduce the full text of Hague IV in 2 pages? If so, why did I number my paragraphs 2, 3, and then 1, 2, 43?]
He fails miserably. [!] Porter's deletions [!] and paraphrases [!] not only contradict his stated purpose [!] but many substantially alter the meaning of the provisions. It is doubly dishonest [!] in that Porter presents little more than his paraphrases [!] followed by an announcement of what he states they mean. Supporting evidence is virtually non-existent [!] and, in its absence, all a reader has to rely upon is Porter's version of the text.
[COMMENT: I have read this material and provided a concise summary of the arguments derived therefrom, as presented in the defense summations of war crime trials generally and Nuremberg, Tokyo, and the Trial of Martin Gottfried Weiss in particular (those with which I am most familiar). If an exception be made for Rudolf Hess, the merest glance at a few hundred or a thousand pages of defense summation in any of these trials will reveal, not only the arguments enumerated by myself, but many others, backed up in turn by dozens of references to recognized authorities in international law: Fenwick, Wheaton, Wharton, Woolesy, Grotius, Smith, Higgins, Hyde, Hill, Hall, Hackman, Hull, Miller, Twiss, Phillimore, Wilson, Maurice, Wigmore, Hudson + Fuller, Flory, Lawrence, Winfield, Glueck, Blackstone, Oppenheim-Lauterpacht, Bellot, Moore, Scott, Nippold, Singer, Roemer; Gallaudet, Main, Finch, Dickinson, Brierley, Black, Cobbet, Feilchenfeld, etc. These are the arguments which have been presented, whether Mr. Edeiken likes it or not. I have also read thousands of pages of prosecution summation, and they do a much better job of it than Mr. Edeiken. For Mr. Edeiken to pretend that his points of view are the only ones possible, is nothing short of ludicrous. The difference is that where I present a concise, succinct summary in 2 pages, Mr. Edeiken requires 17 pages simply to cause confusion. He found two mistakes: a very short paraphrase represented as a direct quote, the only error being the use of quotation marks (article 3 of the body of Hague IV); and a misspelling.]
The problems with the text of the 1907 Convention
[COMMENT: There are 14 Hague Conventions, as noted above.]
are only the beginning of the problems with "War Crimes Trials." Porter's laconic [!] conclusions are dependent on his edited readings of the text and his factual assumptions. Many of Porter's unsupported allegations [!] are simply not correct [!] . The second part of this article, therefore, is an analysis of some of Porter's contentions. It is by no means complete; there are clear errors [!] such as Porter's interpretation of Article 43 that are not included. As many of Porter's errors are similar in nature, explaining all of them would be repetitious.
The examples provided do represent an analysis of Porter's shoddy [!] and misleading [!] techniques. Porter's "War Crimes Trials" is, in fact, poorly written [!] , poorly reasoned [!] and inaccurate [!] at various points. The theme of "War Crimes Trials" is embodied in Porter's unsubstantiated accusations [!] .
Porter's problems with facts [!] begin with the first part of the article where he discusses the applicability of the Convention
[COMMENT: WHICH CONVENTION? Mr. Edeiken starts out, it should be noted, by confusing the 1899 Convention on the Use of Expanding Bullets with the 1907 Fourth Hague Convention on Land Warfare].
He states, for example:
"The United States never ratified this convention, which, thus, never became "international law" in any war involving the United States."
[COMMENT: As noted above, this is in reference to the 1899 Hague Convention on the Use of Expanding Bullets.]
This is, as anyone who has examined the primary documents knows, a misrepresentation. While the U.S. did not ratify the Convention,
[COMMENT: WHICH CONVENTION? Mr. Edeiken now hops to Hague IV of 1907, as if they were the same. IS IT THE CONTENTION OF MR EDEIKEN THAT THE UNITED STATES OF AMERICA NEVER RATIFIED THE FOURTH HAGUE CONVENTION ON LAND WARFARE OF OCTOBER 18 1907, THAT I MAKE THAT CLAIM, AND THAT SUCH A CLAIM WOULD BE CORRECT? WHEN I READ SOMETHING LIKE THIS, I BEGIN TO WONDER WHETHER A WRITER KNOWS ANYTHING.
The above is an excerpt. See also wcrtial.htm and Earthquake.htm
The following is the full text of my article, in which the above error may be seen in context. It is respectfully submitted that anyone who thinks the USA never ratified the Fourth Hague Convention on Land Warfare knows NOTHING about international law and has probably never read a book on the subject.
WAR CRIMES TRIALS
By Carlos W. Porter
Approximately 10,000 “War Crimes Trials” have been held since 1945. Trials of Japanese military personnel ended in 1949, yet “war crimes trials” of Germans and Eastern Europeans continue to date.
Almost invariably, the charge is “violation of the laws and customs of war”, derived, in turn, from international conventions signed at the Hague in 1899 and 1907.
That these trials have little or no basis in law is clear from the wording of the treaties which are said to have been violated.
Let us take a typical example, the Hague Declaration (IV, 3) of 1899 on the Use of Expanding Bullets, dated July 29, 1899.
The Convention states,
“The Contracting Parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core, or is pierced with incisions.
“The present Declaration is only binding for the Contracting Powers in the case of a war between two or more of them.
“It shall cease to be binding from the time when, in a war between the contracting Powers, one of the belligerents is joined by a non-contracting Power”.
IMPORTANT NOTE: This is called an “all-participation clause”.]
The United States never ratified this convention, which, thus, never became “international law” in any war involving the United States. This was because American troops were busy using expanding bullets against Filipinos whom they had just “liberated” from the Spanish.
American refusal to ratify this convention meant, not only that the United States was free to continue using expanding (or dum-dum) bullets legally in all wars, but from the moment the United States entered any conflict, all other belligerents were free to use them as well.
[NOTE: Dum dum bullets, first manufactured by the British at Dum Dum, India, are of advantage only in jungle warfare against primitive tribes, where the danger is of sudden rushes of large numbers at close quarters. They are not used in European warfare because they are inaccurate and tend to foul guns. If they offered an advantage, they would be used regardless of any treaty.]
There are fourteen Hague Conventions, almost all of which contain similar clauses, and for this reason have had little or no application since 1907.
The Fifth Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 18 October 1907, for example, states:
Art. 20: “The provisions of the present Convention do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention”.
This Convention was never ratified by Great Britain, and never applied after August 4, 1914.
Art. 1: “The territory of neutral Powers is inviolable”. Nevertheless, the British and Americans never tired of quoting this clause against the German and Japanese despite their own violation of the neutrality of Iceland, Greenland, Persia, Iraq, Portuguese Timor, and the planned violation of Scandinavian neutrality.
The Third Hague Convention Respecting the Opening of Hostilities states, article 1, states:
“The contracting powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or an ultimatum with conditional declaration of war”.
The problem here is that the “warning” may be as little as one minute, and no verbal formula is required. Poland received two ultimatums and was the first to mobilize. America received a formal declaration 25 minutes late, of which it had actual knowledge 10 days beforehand.
However, the basis of nearly all “war crimes trials” has been the Fourth Hague Convention Respecting the Laws and Customs of War on Land. In the words of Telford Taylor, Chief Counsel and Representative of the United States for the Prosecution of War Crimes at Nuremberg:
“An Annex to the Convention,” consisting of 56 articles, sets forth various requirements and limitations with respect to the conduct of hostilities, the treatment of prisoners of war, and the exercise of authority over the occupied territory of a hostile state”.
This, then, is the Convention which the Germans and Japanese were alleged to have violated in 10,000 trials.
What does the Convention say exactly?
Art. 2: “The provisions... of the present Convention do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention”.
This condition has remained unfulfilled since August 1, 1914. Non-signatories during WWII included Italy, Greece, and the national states of Yugoslavia. Communist Russia repudiated all Czarist agreements and never made any pretence of obeying the Hague or Geneva Conventions.
Art. 3: "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation."
-- This is self-explanatory. No trials were contemplated.
THE ANNEX TO THE 4th HAGUE CONVENTION
The Annex to the Convention was the real basis for nearly all of these 10,000 trials. This is the Convention which defines “war crimes” and “war criminals”...
Articles 1 and 2 prohibit guerrilla warfare, stating that belligerents must be “commanded by a person responsible for his subordinates... have a fixed distinctive emblem recognizable at a distance... carry arms openly... and conduct their operations in accordance with the laws and customs of war”.
-- The European and Asian resistance movements were ILLEGAL.
Article 43 requires collaboration with occupation governments. “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”.
-- The “collaborators” shot, hanged, or imprisoned after WWII were acting in compliance with international law.
Article 23 (3) prohibits weapons calculated to cause unnecessary suffering. Napalm, phosphorous, jellied gasoline, etc. are ILLEGAL.
Articles 25, 27 and 56 prohibit bombardment “by whatever means” of undefended cities, cultural monuments, etc...
-- The fire bombings of Dresden and civilian areas of Hamburg, Tokyo, Hiroshima, Nagasaki, etc., were ILLEGAL.
Article 6 states that belligerents may utilize the labor of prisoners of war, officers excepted, for the public service, for private persons or their own account. German and Japanese “slave policy” was perfectly legal in so far as it applied to members of resistance groups or lower ranking military personnel.
Article 8: “Prisoners of war are subject to the laws, regulations and orders in force of the State in whose power they are. Any act of insubordination justifies the adoption towards them of such measures of severity as may be considered necessary”.
-- So much for the “mistreatment of prisoners” which formed the basis of so many war crimes trials.
Article 46: “Private property cannot be confiscated”.
-- The post-WWII expulsions and confiscations were ILLEGAL. The provisions of the Versailles Treaty which confiscated the private property of all German citizens resident outside Germany, including missionaries on South sea islands, who were expelled and sent home penniless, were ILLEGAL.
Art. 5: “Prisoners... cannot be confined except as an indispensable measure of safety, and only while the circumstances which necessitate the measure continue to exist”, and
Art. 20: “After the conclusion of peace, the repatriation of prisoners shall be carried out as quickly as possible”.
-- The prolonged detention of German and Japanese prisoners by the British, French, Russians and Americans for years after the war was ILLEGAL.
Art. 7: “Prisoners of war shall be treated as regards board, lodging, and clothing on the same footing as the troops of the Government who captured them”.
The conditions of detention in “Eisenhower's death camps” were ILLEGAL whatever the death rate. (See Other Losses by James Bacque).
Art. 32: “A person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communications with the other... he has a right to inviolability”.
-- The detention of Rudolph Hess was ILLEGAL.
Finally, article 23 (h) prohibits declaring “abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party”.
If these treaties have any application at all (which is doubtful), the real war criminals were the Americans, the British, the French, and the Russians.
The illegalities of “war crimes” proceedings include the admissibility of oral and written hearsay; the introduction of the concept of “conspiracy” into international law (unknown prior to 1945); the total lack of any pre-trial inquest or forensic evidence; and trial before a court itself composed of actual “war criminals”.
To return to the writings of Telford Taylor:
“The issues surrounding the war crimes trials are numerous and complex; discussion and criticism of what was done should be welcomed by all who hope for a continuing development of international law... but what should have been done instead is a problem generally ignored by those who condemn what was done in fact”
The alternative is a fair trial before an impartial court under existing procedures and proper rules of evidence.
(*) “The Legality of the Trials”, in “Trials at Nuremberg”, History of the Second World War, Volume 8, No. 7 3/6, Purnell & Sons, 1969.
The Myth of the Illegality of Concentration Camps by C. W. Porter
The Meaning of "'War Crime" and 'War Criminal" in Pre-1945 International Law by C.W. Porter
More on the Illegality of Resistance Movements and Guerrilla Warfare under International Law
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