‘Germans are the Lords and Poles are the Servants’
‘Germans are the Lords and Poles are the Servants’
The Trial of Arthur Greiser in Poland, 19461
Abstract and Keywords
This chapter examines the trial of Arthur Greiser, who served as Gauleiter (i.e., governor/territorial leader) of the Warthegau, a large expanse of western Poland illegally annexed to Nazi Germany, beginning in September 1939. It begins with a biographical sketch of Greiser — his youth, his family, his path to power, and his eventual dénouement. It then discusses Greiser's trial, judgment, and punishment, noting how the proceedings narrated his story and, in turn, a tale of aggressive war. Finally, it charts the impact of the Greiser judgment on international criminal law.
In the aftermath of the World War II, the first aggression verdict implicating an influential Nazi official was delivered not by the International Military Tribunal at Nuremberg (IMT) but, rather, by the Supreme National Tribunal of Poland (Tribunal). The accused was Arthur Greiser.2 Beginning in September 1939, Greiser served as Gauleiter (ie Governor/territorial leader) of the Warthegau, a large expanse of western Poland illegally annexed to Nazi Germany. The Warthegau’s residents suffered brutally under Greiser’s boot.
Greiser’s trial lasted for about two weeks. It started after the commencement of the IMT proceedings, but concluded a few months before the IMT judgment was rendered. The Tribunal sentenced Greiser to death on 9 July 1946. His execution by hanging from a plain wooden gallows took place in the early hours of the morning of 21 July 1946.
The London Agreement and Charter of the IMT and the approaches and strategies of the IMT prosecutors informed the charges brought against Greiser, as well as the legal basis of the judgment. Neither Polish prosecutors nor Tribunal officials saw themselves competing with the IMT. Rather, they saw themselves operationalizing the principles that underpinned the IMT on behalf of the Polish people as victims. Polish national prosecutors felt that the IMT proceedings insufficiently examined the suffering of the Polish people. A pressing need arose to tell this story, for which Greiser’s trial served as the opening act.
(p.412) Greiser, according to Telford Taylor, was the first person to ever be convicted of waging aggressive war.3 In addition to being forerunners on the crime of aggression, the Greiser prosecution and judgment also liberally incorporated Raphael Lemkin’s understanding of and approach to genocide—including the invocation of cultural and spiritual aspects. It did so, however, within the strictures of the charge of ‘exceeding the rights accorded to the occupying authority by international law’. Polish national prosecutors strove to edify a narrative of the extermination of the Polish population by the Nazis and the intended replacement of that population through Germanization efforts that Greiser avidly pursued in the Warthegau. The Greiser case involved genocide, albeit outside the context of the legal definition in the Genocide Convention, which had not yet been adopted at the time.
Greiser’s story is not a completely hidden history. With the exception of a beautifully written biographical work by historian Catherine Epstein4 and the summary recounting of his trial in the 1949 Law Reports of Trials of War Criminals (Law Reports),5 however, Greiser’s story remains largely outside common knowledge. Few international observers have had interest in the verdict either then or now. The judgment has never been published in German.6 Moreover, notwithstanding its pioneering role regarding the crime of aggressive war, the Greiser judgment played virtually no role sixty years later in the activities of the Special Working Group, which defined a crime of aggression for the purposes of the Rome Statute of the International Criminal Court (ICC). Despite the unremitting production of legal scholarship on international criminal law and war crimes proceedings, Greiser’s trial receives only fleeting and fragmented mention in a handful of law review and law journal articles.
In sum, then, Greiser’s story has been told, but its telling is notably understated. In this regard, Greiser’s is an undertold story. Yet it is a story whose recovery fulfils valuable pedagogic and didactic purposes.
I aim to accomplish three goals in this chapter, all of which share in common the overarching aim of bringing Greiser and his trial more prominently to the attention of international criminal lawyers, professionals committed to transitional justice, and a general readership concerned with redressing mass atrocity and historical injustice. My first goal is to sketch a portrait of Greiser—his youth, his family, his path to power, and his eventual dénouement—that draws heavily from Epstein’s research. My second goal is to summarize Greiser’s trial, judgment, and punishment—noting how the proceedings narrated his story and, in turn, a tale of aggressive war. My third goal is more normative in nature, namely, to chart the (p.413) Greiser judgment’s effects in international criminal law today and, furthermore, to inquire whether contemporary law and policy can learn anything from it.
(I) Who is Arthur Greiser?
Even though it is easy to reduce atrocity perpetrators to simplistic caricatures of evil, Greiser is a complex individual. Catherine Epstein’s seminal book elegantly brings this nuance to life, while also emphasizing the horrid consequences of his orders, the devastation wrought by his activities, and the imperiousness of his intentions. Among a variety of archival sources, Epstein excerpts from the letters Greiser wrote to family and loved ones.
Arthur Karl Greiser was born in 1897 in the German/Polish borderlands (the Prussian province of Posen) into a close family of ‘lower middle-class’ means.7 His father was a bailiff. Greiser was the youngest of four children. Throughout his life, Greiser remained especially familiar with his brother Otto—the two shared a similar temperament and politics. His oldest brother, Willy, was never a Nazi. His sister, Käthe, married Alfred Kochmann, a doctor of Jewish origin. With Arthur Greiser’s assistance, the couple emigrated to China in 1933 and, ultimately, to New York City, where Käthe lived until her death in 1966. Kochmann was a successful physician. Otto died at the hands of the Russians in the Warthegau during World War II. Willy passed away in 1951.
Greiser fought in World War I. He was devastated by Germany’s loss of Posen province. Thereafter, he moved to Danzig.8 It was during these interwar years that Greiser became an avid German nationalist. According to Epstein, insofar as Greiser’s ‘experiences had been determined much more by Poles than by Jews, Greiser viewed Poles as the main threat to his nationalist vision’.9 In short, then, Greiser ‘defined Poles, and not Jews, as his major enemy’—a Weltanschauung that stuck with him throughout his life.10
Greiser was twice married. His first wife, Ruth (whom he divorced in 1934) survived the war and died in Hamburg in 1984. Greiser met his second wife Maria while he was still married to Ruth. Maria was an accomplished concert pianist devoted to the Nazi party and Nazi classical composer Hans Pfitzer. Heinrich Himmler himself served as a witness at Arthur and Maria’s wedding. Greiser had three children—all with Ruth. Two pre-deceased Greiser. His son, Erhardt, perished in a car accident in 1939 while coming home from boarding school to spend Christmas with Greiser; his daughter, Ingrid, died in Germany in the immediate aftermath of World War II; Rotraut, his one surviving daughter—childless—lives in Germany. At the time Epstein conducted her research, Maria—ninety-eight years old—apparently was also still living in Germany.
(p.414) Greiser first became a member of the Nazi Party in December 1929. He was a late joiner. This indelible fact haunted him throughout his career and lingered as a source of insecurity. But Greiser rose in the Nazi ranks—and did so notwithstanding his poor education (he never finished high school). Greiser soon became Deputy Gauleiter for Danzig and, as of May 1934, concurrently served as President of the Danzig Senate.
In Danzig, Greiser was Deputy to Gauleiter Albert Forster, one of Hitler’s favourites, who in turn became Greiser’s arch-rival. In 1939, Forster effectively sacked Greiser. With war imminent, Forster amalgamated the position of Gauleiter and Head of State of Danzig (a constitutional violation).11 In order to do so, Forster obtained Greiser’s authorization, which was delivered in the form of a pre-arranged letter. This letter endorsed what Greiser had previously spent years trying to fend off. Ironically, this letter came to figure prominently at Greiser’s trial. Without acknowledging that, essentially, Greiser was forced to commit to the letter, the Tribunal turned to it to signal how Greiser was a major decision-maker in the planning of the aggressive war in Danzig. Tellingly, after expanding his power, Forster ‘insisted that Greiser give up his keys, and forbade his entry into the senate building’.12
Greiser was despondent. His fortunes, however, miraculously turned for the better when he was offered the post of Gauleiter of Posen (which was renamed the Warthegau in early 1940), the Polish region that Germany lost after World War I but the Third Reich regained by annexing it following the 1939 invasion of Poland. In 1939, its population encompassed some four million Poles, 325,000 Germans, and 400,000 Jews—all living on a territory of roughly 44,000 square kilometres.13 The Warthegau was largely rural. It only had two major cities—Posen (Poznán) and Litzmannstadt (Łódź). To its east lay the General Government, from which it was separated by a customs border; a police border separated it from the Old Reich to the west such that passport controls were required.14
In his capacity as Gauleiter, Greiser ‘decisively shaped policy’ in the Warthegau.15 He fervently introduced a Germanization programme. Germanization initially involved the destruction of Polish society and then, according to Matthew Lippman, the ‘imposition of a German socio-political and economic structure’.16 The influx of Germans was financed by theft, confiscation, and expropriation from those residents who were expelled. Poles deported to Germany for forced labour were made to wear as a distinguishing mark a purple P on a yellow background.17 All told, Greiser:
wanted to rid his region of Poles and replace them with Volksdeutsche (ethnic Germans). He took away Polish property, placed Polish orphans with ‘Aryan’ families, terrorised the clergy, (p.415) and limited cultural and educational programs. From 1939–1945 he kicked out 630,000 Jews and Poles and replaced them with 537,000 ethnic Germans.18
Statistics on resettlement are inconsistent, however, with German news outlets of the time estimating that 818,000 ethnic Germans from different countries had been resettled into western Poland.19 In any event, tensions—exacerbated by economic pressures—arose within the putative German community regarding the resettlement program. Epstein adroitly documents how the German community in the Warthegau encompassed three subgroups: Reich Germans (those who came from the Old Reich, who comprised the elite), ethnic German resettlers from other regions, and ethnic Germans native to the region.20 The three categories tended not to speak the same language. Many resettlers, in fact, did not even speak German.
Greiser ‘created the harshest anti-Polish regime in Nazi-occupied Europe’.21 In this regard, he differed from his contemporaries at the Gauleiter level. As part of his Germanization efforts, Greiser even went so far as to alter the Warthegau’s natural and physical environment. He changed place names, appropriated art, and removed traditional Polish monuments. He supported reforestation programmes: ‘To Germans, nature represented immortality, authenticity, seriousness, resurrection, and German “willpower”…[t]rees and forests occupied a particularly special place in the imagined German landscape’.22
Once possibilities diminished for other regions to absorb deported Poles and Jews, the mass gassings at Chelmno (which began in late 1941) and other concentration camps emerged as the next turn. Greiser thereby became entwined with the operationalization of the Final Solution. Chelmno was located sixty kilometres from Litzmannstadt (Łódź), whose ghetto was the main collection point for the camp.23 Chelmno was under the direct command of SS and Police leadership in the Warthegau, who, in turn, cooperated with Greiser.24 Greiser never had day-to-day control over the activities of the Chelmno execution squad, but he certainly ‘shaped the Final Solution in his territory’.25 The indictment against Greiser alleged (p.416) that ‘[i]t must be taken that more than 300,000 persons perished in Chelmno’, almost all of them Jews.26 This statistic has been found to be in error, as noted by Epstein, who affirms that 160,000 Jews were murdered there.27 The monument at the site of the camp today, moreover, states that 180,000 Jews were murdered there, along with 4,300 gypsies.28
According to Epstein, Greiser spent his life trying to become a model Nazi. Why? Epstein suggests Greiser strove to overcome his late conversion to the party, as mentioned earlier, as well as doubts about his war record, his antecedent membership as a Freemason, and his scandalous divorce, adultery, and remarriage.29 Epstein also deduces that much of Greiser’s policies hinged upon positioning. For example, when he thought he could get ahead by being a more moderate Nazi, he did so—such was the case in Danzig when he positioned himself against his foil, Forster.30 But when he thought he could get ahead by being a zealously radical Nazi, for example while he was Gauleiter, he did so, as well. Epstein posits that, after having been compromised in Danzig when manoeuvring to the moderate side of the party, Greiser subsequently endeavoured to remain on the activist radical fringe.
On 21 January 1945, Greiser’s world was rapidly falling apart. Just shy of his forty-eighth birthday, Greiser drove from Poznán to Frankfurt. He did so pursuant to Hitler’s order. Nevertheless, as Epstein reports, senior Nazis—whether aware of this important fact or not—scathingly belittled Greiser for this departure which they likened to an abandonment. Goebbels, who was urging the German population to stay and fight, became irate when he had to contend with Gauleiters who abandoned their posts. Goebbels specifically ridiculed Greiser’s courage, manliness, and strength.31 Bormann, who had sent Hitler’s telegram telling Greiser to return West, later professed astonishment with Greiser’s departure and subsequent arrival in Berlin. Ultimately, Greiser succeeded in persuading Bormann to disseminate a circular that indicated that Greiser left Poznán only because of Hitler’s orders. Epstein, however, is skeptical that Bormann’s setting the record straight actually ‘improved Greiser’s negative reputation’ or otherwise fulfilled a rehabilitative function.32
The Americans arrested Greiser on 16 May 1945, in the Austrian Alps. At the time, Greiser was hiding in a lodge with Maria, together with the equivalent of $35,000 (in 2007; USD) in Reichmarks and briefcases of important documents.33
Epstein notes that Greiser faced competing pressures at the end of the war: on the one hand, to maintain stature and honour among the frayed and decaying Nazi leadership and, on the other hand, to minimize perceived liability in the face of imminent defeat and justifiable fears of war crimes trials. After his arrest, in a (p.417) manner typical for such cases, Greiser downplayed his standing, role, and responsibility for violence. He trotted out the fact that his sister had married a Jew; as well as other tiresome canards, to wit, that the ghettos in Poland were fairly comfortable and that he had no knowledge of the extermination camps.
The German people of the Warthegau were furious with Greiser’s delayed evacuation of civilians. Because of this, they lost several days to escape the oncoming Red Army, whose systematic atrocities against the German civilian population also remain an undertold aspect of the World War II. Evacuees endured terrible conditions. Fifty thousand Germans died during their ‘flight from the Gau’.34
(II) Trial, Judgment, and Execution
On 23 October 1945, the Polish government—evoking the Moscow Declaration of 1943—requested the Americans to deliver Greiser to Poland to face war crimes proceedings.35 The Moscow Declaration provided that ‘war criminals who had committed crimes in occupied countries would be sent back to those countries and stand trial and be sentenced on the basis of those countries’ laws’.36 The Americans agreed. Greiser was transferred in March 1946.
A Polish decree of 22 January 1946, delineated the Tribunal’s jurisdiction and powers.37 The Tribunal was created to prosecute major war criminals. Its purpose was to operationalize the Moscow Declaration. Earlier decrees from 1944 and 1945 elucidated its substantive law of application, in particular a Decree of 31 August 1944, promulgated by the Polish Committee of National Liberation, concerning the punishment of ‘fascist-hitlerite criminals’ and ‘traitors to the Polish nation’.38 All told, the Tribunal presided over seven cases (the number of individual defendants was greater). Although its seat was in Warsaw, it conducted some of its trials in other cities in Poland. The substantive law applied by the Tribunal took the form of a hodge-podge of special decrees, pre-existing municipal law, and the London Agreement—understandable, to be sure, in light of the paucity of comprehensive law regarding war crimes, crimes against humanity, and crimes against the peace available at the time. Unsurprisingly, the Tribunal’s work was challenged by retroactivity claims, which I discuss below because they arose in Greiser’s trial.
The work of the Tribunal has nonetheless been lauded. One commentator, for example, renders a favourable assessment of the quality of the Tribunal’s work when placed within its historical and temporal context:
In sharp contrast to the numerous political trials carried out in the country during the same period, in which thousands of individuals accused of ‘hampering socialist reconstruction’ were (p.418) sentenced to death or long prison terms, the [Tribunal’s] proceedings applied conventional legal and moral standards comparable to those used in Western courts and investigated each case comprehensively on its own merits.39
No doubt, ‘Western’ courts of the time impinged upon retroactivity principles in the name of the self-evident greater good of prosecuting Nazis—the not-so-self-evident triumph of obvious justice over legalistic minutiae. The favourable assessment of the Tribunal’s work when it came to the high-profile Nazis, however, belies a disturbing shadow cast by some of its foundational instruments. The Decree of 31 August 1944, for example, has been characterized as an ‘infamous’ piece of legislation ‘promulgated by the Communist proxy regime and used mainly as a political and legal tool of repression’ that facilitated post-war prosecutions, harassment, and torture of persons deemed anti-communist.40 This Decree, it has been argued, was deployed to target anti-communists on the pretext they were Nazi sympathisers.41 Consequently, at least insofar as its application to this large class of defendants goes, ‘the intention of the authors of the August Decree was to limit, if not outright preclude, the possibility of a fair investigation and a fair trial’.42
Greiser’s trial, in any event, opened in Poznán on 22 June 1946, to enormous local interest but considerably less international interest. His was the first of the Tribunal’s prominent trials. Epstein notes that these trials were intended ‘to educate the Polish public about the Nazi occupation’.43 She observes that ‘[w]hile the Greiser indictment did not ignore Holocaust crimes, it subsumed the Final Solution under crimes against the Polish people’.44
The Tribunal was composed of three judges and four jurors.45 Greiser stood before it accused of three offences covering a lengthy time period. They involved Greiser’s activities in Danzig at the outset of the war, and also his activities while he was Gauleiter of the Warthegau. Although Prosecutors presented these activities as continuous, within the framework of Greiser’s life, as discussed earlier, they represented two distinct phases.
The first offence in the indictment against Greiser alleged that, between 1930 and May 1945, he ‘took part in the activities of a criminal organisation’, to wit, (p.419) the Nazi Party, of which he was charged with being ‘one of the leaders’.46 The second offence in the indictment alleged that Greiser was ‘in charge of’ the Nazi Party branch ‘in the territory of the Free City of Danzig’ and that in this capacity between 1933 and 1 September 1939 he ‘conspired’ with German chief government organs to cause warlike activities, aggression, and military occupation of Poland.47 The indictment offers a detailed account of the unfurling of Nazi aggression against Poland. In actuality, however, it remains doubtful that Greiser was ‘in charge of’ the Danzig branch. Forster was.
The third stated offence involved the period from 12 September 1939 to mid-January 1945 in the Warthegau. The indictment specifically characterized World War II as having ‘begun as a result of German aggression’48 (unsurprising, insofar as this was—at the time—a legal precondition to charge crimes against humanity). Greiser, in his capacity as Reichstatthalter and Gauleiter of the Warthegau, was accused of ‘exceeding the rights accorded to the occupying authority by international law’ and of ‘contravening the principles of the law of nations and the postulates of humanity and the conscience of nations, both on his own initiative and in carrying out the unlawful instructions of the civil and military authorities of the German Reich’.49 This part of the indictment charged Greiser with acting ‘to the detriment of the Polish State and of its citizens’ by his inciting, assisting in the commission of, and personally committing a listed series of offences.50 Pertinent offences included mass murders of civilians, persecution, deprivation of the private property of the Polish population, and also the ‘[s]ystematic destruction of Polish culture…and Germanization of the Polish country and population’.51 The third charge against Greiser was further bolstered by extensive reference to impugned acts, such as the torturing to death of Poles and Jews in concentration and extermination camps, the ‘insulting and deriding [of] the Polish nation by proclaiming its cultural and social inferiority’, and persecution of the Polish population that ‘exceed[ed] in practice the legal and administrative regulations’.52 Prosecutors, responding to public pressure, emphasized Greiser’s role in the destruction of the ‘cultural values of the Polish nation’ undertaken, inter alia, by closing Polish scientific institutions, press, schools, cinemas and, also, destroying monuments, art, and limiting the use of the Polish language.53 The specifics of the indictment noted Greiser’s efforts to liquidate the intelligentsia. Greiser introduced a comprehensive legal regime that systematically persecuted Poles, limited their movements, and festooned public parks with Kein Zutritt für Polen (‘No Entry or Access for Poles’) signage. Mention was also made in the indictment of Greiser’s role in ‘depriv[ing] Poles of all confessions of the means of freely practising their religious cult, especially the Catholics who constituted 90% of the population of that area’.54 Sexual relations between Polish men and German women led to death for the implicated Pole and public humiliation for the woman.
(p.420) Technically, the alleged crimes were proscribed by the 1944 and 1945 decrees and also by the Polish Civil Criminal Code of 1932.55 So, too, were the punishments. One gap, however, involved the charge of membership in a criminal organization. At the time of Greiser’s trial, this crime was not proscribed by the Polish war crimes legislation (a proscription only arose several months after Greiser’s trial had concluded).
The indictment itself was extremely detailed. The Law Reports set out many of the particulars,56 which comprehensively narrate the germination of aggression against Poland and the harrowing abuses inflicted upon civilians and prisoners of war in the region. According to the Law Reports, however, the Tribunal judgment ‘did not deal…in detail with the specific charges’ but did ‘in its findings of a general character rel[y] to a very large extent on the Indictment’.57
Greiser pleaded not guilty. The Tribunal assigned him very competent defence counsel—two prominent Poznán barristers. Upon notification, both lawyers immediately sought to quash this appointment, in particular, because Poznán had suffered so much under Greiser’s boot (according to Epstein, one of Greiser’s attorneys had himself been deported, and the Germans had murdered two of his brothers).58 Their requests, however, were denied. Notwithstanding what must have been a searing personal conflict, both counsel engaged in good faith and praiseworthy defence strategies.
At trial, the prosecution called witnesses to testify. Statements that some witnesses had made before Allied authorities in Germany ‘were read during the trial’.59 Nonetheless, ‘the case for the Prosecution rested overwhelmingly on legal enactments and administrative orders, and regulations, issued by the accused and other German authorities’ and also evidence submitted by requested experts.60 The Law Reports summarize much of this expert evidence.61
How did Greiser defend himself? He claimed that: (1) he opposed the war as an instrument to attain the aims of the Nazi party; (2) he submitted resignations, which were never accepted, on four occasions; (3) he acted only upon the express orders of Hitler or Himmler and under the strict supervision of central German authorities; and (4) he had only a restricted responsibility for general matters of policy.62 Greiser also sought to advance a claim that neither the ordinary police, nor the Gestapo, nor the SS were ‘ever subordinated to him in any way or measure [but] always took their orders and instructions directly from Berlin, and particularly from Himmler’.63 Specifically, Greiser claimed ‘for all matters of policy and measures applied and carried out in this territory the responsibility rested entirely (p.421) and exclusively with Hitler and Himmler…in his actions he…was always strictly supervised by the central German authorities’.64 The heart of Greiser’s defence was that he was a subordinate of Hitler and Himmler; whatever he did they had ordered; and he was routinely subject to their command, censorship, and supervision. In sum, then:
The accused…disclaimed any responsibility for anything that had occurred in concentration and other camps, and for what had been done as regards the extermination of Jews, deportation of Poles, expropriation of property, denationalisation, persecution of churches and other incriminating activities, and alleged that he had no influence whatsoever in these matters. Moreover, in regard to many instances of undoubtedly criminal acts committed by German authorities and officials, which were brought before the Tribunal, the accused denied any knowledge of them.65
Greiser had prepared a list of 126 witnesses to testify in his favour, but only ‘a few were brought to the stand’.66 His chief witness was his deputy, Alfred Jäger. The Tribunal did not accept Jäger’s evidence as being in good faith. Jäger, in any event, was deeply implicated in wrongdoing as well. He, too, was eventually tried and executed.
The Tribunal delivered its judgment on 7 July 1946. It convicted Greiser of all the crimes with which he was charged—save for one exception, namely, that Greiser did not personally commit any murders or acts of cruelty or inflict bodily harm.67 Greiser, therefore, was convicted of membership in a criminal organization, aggressive war, and exceeding the rights accorded to the occupying power under international law (in other words, the war crimes and crimes against humanity charge). The Greiser case, moreover, has been described as the ‘first ever legal ruling on the crime of genocide’.68 Although the Polish decree that governed the trial did not explicitly refer to genocide, in its judgment regarding the third charge the Tribunal referenced Greiser’s actions within the framework of crimes against humanity as a ‘general totalitarian genocidal attack on the rights of small and medium nations to exist, and to have an identity and culture of their own’.69 The Tribunal noted the genocidal character of the repression and the genocidal nature of the attacks on Polish culture and learning.70 Lemkin’s neologism was used to explicate the systematic and legislative nature of the violence against the Polish and Jewish populations. The Tribunal contemplated the physical, biological, spiritual, and cultural aspects of genocide, including Nazi destruction, confiscation, theft, and seizure of cultural property, art, and archives, whether publicly or privately held. Hence, the Tribunal ‘broadly conceiv[ed] of genocide as encompassing both the cultural and physical extermination of a religious or national group’.71
(p.422) The Tribunal judgment relied heavily on documentary evidence. In terms of the substantive law, as discussed earlier, the Tribunal based itself in municipal Polish law. On the charge of membership in a criminal organization, which at the time was not proscribed municipally, the Tribunal grounded itself upon the London Agreement and Charter and, in a subsidiary sense, two provisions of the Polish Criminal Code.72 On a more general note, as Epstein remarks, the language and principles of the IMT greatly influenced the proceedings against Greiser.73 A Polish delegation had been granted access to IMT proceedings; one of the prosecutors in the Greiser proceedings had been a member of this delegation. According to Epstein, plans had been made for Robert Jackson to come to Poznán to attend Greiser’s trial but these did not come to fruition.
When it came to the aggressive war charge in Danzig, which was proscribed by the governing decrees, the Polish Tribunal also referenced the Versailles Peace Treaty of 1919, the Paris Convention of 1920, and other international treaties including a non-aggression pact signed between Germany and Poland on 26 January 1934. Greiser’s defence lawyers had argued that ‘international treaties and conventions concerning the renunciation of war as a means for settlement of inter-State disputes…cannot be regarded but as a lex imperfecta, as they did outlaw the war but did not provide for any penalties in this respect’.74 The Law Reports further indicate that Greiser’s defence counsel ‘also raised the defence of nullum crimen sine lege poenali, nulla poena sine lege as far as Polish municipal law is concerned’.75 The Tribunal rejected these pleas, putatively ‘in accordance with the state of international and municipal law at the time of the trial’, in which the London Agreement and Charter figured prominently.76 The approach of the Tribunal, assuredly, is not fully convincing from a legality perspective, insofar as the impugned conduct had occurred several years earlier.
The Tribunal found Greiser to be ‘one of the chief instruments’ in ‘the gradually unfolding plan for aggressive war on a world scale…and especially in Danzig’.77 It characterized Greiser as ‘fanatically given over to the idea of a Greater Germany’.78 Greiser was portrayed as an enthusiastic proponent of Nazi policies. Although the Tribunal linked him to Hitler in a ‘conspiratory’ sense, it also held that Greiser ‘successfully carried out the criminal order of his leader’ and found him ‘devoted to his leader’.79 The Tribunal, therefore, seems to implicitly accept that Greiser was not a policy-maker or high-level leader, but still convicted him for crimes against the peace. The Tribunal—either consciously or inadvertently—was tone-deaf to the tensions that raged between Greiser and Forster.80 In this regard, it seemed to accept the Prosecutor’s position that Greiser and Forster were ‘in full agreement (p.423) as to the plan of action’ and that the relations between the two men were ‘so close’.81 This historical carelessness is rendered all the more paradoxical insofar as the appointment of Forster as Gauleiter of Danzig proved to be a key element in Greiser’s conviction. On this note, the Law Reports state:
[Greiser] was entrusted with one of the main Party functions (deputy chief of the branch of the NSDAP in Danzig) and put in the principal administrative posts (senator for internal affairs, then vice-president and president of the Senate), in order that he might through such long-term activities bring about an internal revolution in the Free City of Danzig when the time came. This took place on 23rd August, 1939, when, as President of the Danzig Senate, Art[h]ur Greiser, in violation of international law and agreements (Article 104 of the Treaty of Versailles, and the Polish-German non-aggression pact) on Hitler’s orders made Gauleiter Albert Forster Chief of ‘Danzig State’, who in turn illegally incorporated the Free City in the Reich by unilateral act a week later.82
According to Epstein, ‘the most notable feature of Greiser’s verdict—that he was the first man ever convicted of ‘crimes against the peace’—was based on the least credible evidence. In Danzig, Greiser was hardly engaged in an organized ‘conspiracy’ to wage aggressive war’.83 As an aside, Forster himself was convicted by the Tribunal two years later and was eventually executed in 1952.84
With regard to the third charge, namely crimes committed by Greiser in his capacity as Gauleiter, the Tribunal found that ‘as a result of [his] direct or indirect orders…thousands of Poles and Jews lost their lives, their property was destroyed or removed, Catholic and Protestant churches were ruined, schools and teaching centres shut down’.85 The judgment summarized the many crimes that had been committed against the Polish population. Unlike the situation with the aggression charge, in this capacity Greiser seemingly acted quite independently and ‘did not intend to be merely the trusted servant of his leader’.86 In this sense, the third charge rested on more solid factual footing. Greiser, in the words of the Tribunal, ‘by no means simply blindly carried out the orders of his leader, Hitler, whom allegedly there was no possibility of opposing, but was an independent, ambitious and cunning instigator and organiser of the cruel methods which led to the mass extermination of the local populations’.87 Greiser, in a nutshell, had considerable agency and discretion once he became Gauleiter of the Warthegau.
The Tribunal was minded that superior orders did not serve as a defence to the charges against Greiser. In this regard, the Tribunal adhered to applicable municipal Polish law, according to which superior orders could only be considered as (p.424) a mitigating factor in sentencing.88 The Tribunal lambasted Greiser for lacking the ‘moral courage to admit responsibility for any one of the crimes’; sardonically mocked his claims that he had no knowledge of the crimes that were widespread in the region; and ridiculed him for ‘not even accept[ing] responsibility for his own speeches and publications, alleging that they were forced upon him by the central authorities’.89
The Tribunal sentenced Greiser to death and, in addition, pronounced the loss of his public and civic rights and the forfeiture of all his property.90 Matthew Lippman reports that Greiser ‘attempted to mitigate his genocidal acts by pointing to the benevolent treatment he extended to his Polish house staff’.91 The Tribunal responsively noted that a German typically ‘can have a “public soul” and a “private soul”’.92 Greiser’s ‘benevolence’ was found not to transcend the private sphere.93 Although describing Greiser’s attitude as ‘good natured and correct,’ the Tribunal found that it did not mitigate the gravity of his crimes.94 Contemporary tribunals have also had to deal with these sorts of claims: to wit, that the defendant saved some members of the victim group, for example, Tutsi in Rwanda. Similarly to the case with Greiser, these claims have for the most part proven ineffectual.
The Tribunal’s decisions were final, subject to the caveat that the Polish President had the right of pardon. Greiser feverishly sought to revisit his conviction and sentence. Pope Pius XII interceded on his behalf in this regard, urging the Polish government to grant him clemency (rather ironic, given Greiser’s fervent persecution of Catholics in the Warthegau). These attempts, however, were to no avail.
Greiser was executed publicly by hanging on 21 July 1946 in front of the Warthegau Governor’s mansion. Crowds of spectators poured in—15,000 in total. It was a quick and absolute reversal of fate for the man who, five years earlier, had boldly brayed: ‘Never again will so much as a centimetre of the land we have conquered belong to a Pole. The Poles may work with us, but not as masters, for which they have shown themselves lacking aptitude, but as hirelings.’95
(III) Jurisprudential Legacies
The Greiser judgment has received very limited play in subsequent international criminal law jurisprudence.96 A search of the International Criminal Tribunal (p.425) for Rwanda and Special Court for Sierra Leone websites reveals no references to the judgment. At the International Criminal Tribunal for the former Yugoslavia (ICTY), Greiser has been cited five times: in three trial judgments, in a separate and partly dissenting appeals opinion, and in a partly dissenting appeals opinion.
In Prosecutor v Kupreskić et al, the Greiser case was noted as an interpretive aid in defining the meaning of the term ‘persecution’ for the purposes of Article 5 of the ICTY Statute.97 The Kupreskić Trial Chamber, Judge Cassese presiding, referenced Greiser’s conviction for crimes, including acts of persecution and extermination. The Kupreskić Trial Chamber quoted directly from the Greiser judgment, which had elucidated Greiser’s participation in these acts as involving inter alia:
[M]urdering [Polish and Jewish people] on the spot, concentrating them in ghettos…whence they were being gradually deported and murdered, mainly in the gas-chambers of the extermination camp at Chelmno…, submitting the Jewish population from the very beginning of the occupation to every possible kind of vexation and torment, from verbal and physical effronteries to the infliction of the most grievous bodily harm, in a way calculated to inflict the maximum of physical suffering and human degradation.98
In addition to Greiser, the Kupreskić Trial Chamber cited several other cases in support of a capacious understanding of the crime of persecution, to wit:
[T]hat the crime of persecution both during and since the Second World War did not consist only of those acts not covered by the other types of crimes against humanity. On the contrary, these Tribunals and courts specifically included crimes such as murder, extermination and deportation in their findings on persecution.99
The ICTY Trial Chamber determined that this understanding was reflective of customary international law.100 The Trial Chamber, however, then emphasized how persecution is distinguishable from other crimes against humanity insofar as it is committed on discriminatory grounds.
In his partly dissenting appeals opinion in Prosecutor v Stakić, Judge Shahabuddeen invoked the Greiser judgment’s approach to the definition of ‘deportation’.101 Judge Shahabuddeen posited that the Greiser indictment arguably used the term ‘deportation’ in the sense of meaning a ‘transfer’.102 The question that concerned Judge Shahabuddeen was whether a deportation could refer only to the crossing of a border of a state. The Greiser indictment had turned to this term in regard to the ‘forcible displacement of civilians from one place to another within the same state’—specifically, to the area of the General Government, meaning, according to Judge Shahabuddeen, ‘from one area of Poland to another area in the same country’.103 According to Judge Shahabuddeen, there ‘was a demarcation line (p.426) which could not be transgressed’.104 Greiser, it was noted, was found guilty. In the end, for Judge Shahabuddeen, it did not appear from ‘several cases connected with the Second World War’, including Greiser, ‘that there was occasion for the courts to focus on any precise distinction between deportation and transfer or to speak of the former alone in respect of external forcible displacement and of the latter alone in respect of internal forcible displacement’.105
The deportation and international borders question also arose in the case of Prosecutor v Naletilić and Martinović.106 In his separate and partly dissenting appeals opinion, Judge Schomburg noted—similarly to Judge Shahabuddeen—that the Polish Tribunal had tried Greiser for inter alia ‘imprisoning Polish Jewish citizens under his authority in the Łódź ghetto and finally deporting them to the Chełmno extermination camp (both located in Poland)’.107 Judge Schomburg noted that Greiser was also convicted for ‘deporting Polish civilians to the General Government and to forced labour camps in “Germany proper”’. Both acts were considered by the Polish Tribunal to be deportation. In this regard, Judge Schomburg included the Greiser case as among ‘Nuremberg jurisprudence’ that, as a whole, was too inconsistent to serve as authority for a ‘de jure cross-border transfer requirement for the crime of deportation’.108 Ultimately, Judge Schomburg concluded that ‘the crime of ethnic cleansing by uprooting specific parts of a population needs to be called by the name it deserves: Deportation’.109
In the Trial Chamber’s judgment in Prosecutor v Krstić, Greiser was cited in a lengthy footnote (containing six other citations) in support of the proposition that, in a number of decisions by the Nuremberg Military Tribunals and the Supreme National Tribunal of Poland, although the crime of extermination was alleged, these judgments ‘generally relied on the broader notion of crimes against humanity and did not provide any specific definition of the term “extermination”’.110 Finally, in the Trial Chamber’s judgment in Prosecutor v Krajišnik, Greiser again was cited (among other cases) in a footnote, this time in support of the proposition that post-World War II jurisprudence addressed, in the context of crimes against humanity, acts such as denial of freedom of movement, denial of employment, denial of the right to judicial process, denial of equal access to public services, and the invasion of privacy through arbitrary searches of homes.111
The efforts of the Special Working Group tasked with the definition of the crime of aggression for the purposes of the Rome Statute also reveal the anaemic nature of the Greiser judgment’s jurisprudential legacy. The Greiser case played (p.427) virtually no role in the Special Working Group’s conversations or debates.112 In fact, the formulation of the crime of aggression advanced by the Special Working Group—and subsequently adopted by consensus by the Review Conference on 11 June 2010, as a proposed amendment to the Rome Statute113—would arguably preclude the imposition of individual penal responsibility for the crime of aggression upon officials whose status, authority, and power match that which Greiser himself had exercised.
Proposed Rome Statute Article 8bis (1) defines the crime of aggression as ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity, and scale, constitutes a manifest violation of the Charter of the United Nations.’ Subsection (2) thereof defines an act of aggression as the ‘use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’ while referring to the acts identified under UN General Assembly resolution 3314 (1974) as qualifying as acts of aggression. These acts include invasions, bombardments, blockades, and other evident manifestations of inter-state armed force. Not every act of aggression, to be sure, constitutes a crime of aggression. The acts must be manifest violations of the Charter by virtue of their character, gravity and scale. Moreover, only persons in a position effectively to exercise control over or to direct the political or military action of a state can be found personally responsible for crimes of aggression. This latter requirement immediately emerges from the language of Article 8bis (1), as previously discussed, and also is buttressed by proposed Article 25 (3bis) (which addresses principles and modalities of individual criminal responsibility) as well as the proposed amendments to the Elements of the Crime of Aggression adopted at the Review Conference.114 These stipulated leadership requirements distinguish the crime of aggression from the other crimes—to wit, genocide, crimes against humanity, and war crimes—proscribed by the Rome Statute.
Although transhistorically there is little doubt that the Nazi invasion of Poland would classify as an act of aggression that would give rise to findings of the commission of crimes of aggression under the Rome Statute, the question arises as to who exactly would bear individual penal responsibility under the proposed Rome Statute framework. Greiser? Probably not. He did not effectively control the political or military action of a state. Nor did he direct such state action. Certainly, he (p.428) did not exercise such influence with regard to Nazi Germany. He did not even exercise it, realistically, within Danzig itself. He was involved in the implementation of aggressive war, but he was not a top policy-maker. He acted upon the orders of others and, ultimately, was sacked by his superior Forster in the immediate run up to war. Assuredly, Greiser exercised great discretionary authority over the Warthegau once aggressive war had begun; in this capacity, however, his criminality involved war crimes, genocide, and crimes against humanity, to which the leadership requirement is not, in any event, formally applicable pursuant to the Rome Statute.
The Rome Statute governs only the ICC. Hence, as articulated by Understanding 4 adopted at the Review Conference, ‘the amendments that address the…crime of aggression do so for the purpose of this Statute only…[they] shall…not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’. National courts can therefore prosecute the Greisers of today—just as a national court had prosecuted Greiser himself. The Rome Statute, however, has tremendous social constructivist effect. It informs the content of national legal systems, whether through direct incorporation or through its status as a normative trendsetter. Its definition of aggression—and attendant leadership requirements—foreseeably may, in turn, come to suffuse national jurisdictional frameworks. The content of the Rome Statute certainly influences the broader corpus of international criminal law in both substance and practice. If the Rome Statute’s approach to individual penal responsibility for the crime of aggression seeps into that corpus, and informs national jurisdictional frameworks, then national courts also would be stymied in their ability to prosecute the Greisers of today for the crime of aggression.
I have elsewhere expressed considerable scepticism about the deterrent and retributive value of international criminal punishment, although I remain more optimistic about the expressive and didactic value of such proceedings.115 Arthur Greiser’s trial reflects the expressive and didactic value of prosecuting and punishing a senior, albeit not top, official for aggressive war. The proceedings offer a detailed account of the build-up to aggressive war in Danzig. They also provide an account of the suffering of the Polish people. Local officials, after all, matter greatly to afflicted local populations.
The restrictiveness of the Rome Statute’s approach to who may be prosecuted for aggression reflects, on the one hand, international criminal law’s understandable tendency to focus on the most senior policymakers. But, on the other hand, this leadership requirement also may enable many other participants in the aggressive (p.429) war effort to avoid justice and, accordingly, for the meso-narratives of aggressive war to remain untold.
Without the committed support of the upper and senior ranks, and personnel such as Greiser, there would be no war effort at all. Assuredly, as the Farben and Krupp judgments noted, reaching down and criminally implicating everyone, including the foot soldier, who somehow assists in the war effort would be tantamount to mass punishment.116 Upper and senior ranks that presently fall outside the scope of the Rome Statute, however, could be included in accountability conversations for aggression without having the law veer in the direction of collective punishment.
Such accountability conversations, moreover, need not take the form of criminal trials. Transitional justice contemplates a broad range of processes. At present, however, criminal courtrooms and jailhouses represent the ideal-type pinnacle of justice, the first-best practice, and the iconic response. Simply put, international criminal law normatively defines the justice agenda. Hence, persons who fall outside of its parameters are, in effect, collectively exonerated. This putative exoneration, in turn, might insulate such persons from other forms of post-conflict justice, such as truth commissions, inquiries, reparations, sanctions, and customary mechanisms. When international criminal law parsimoniously rushes to blame only the very top leadership, it runs the risk of sapping the ability of other accountability processes to deracinate the deeper, structural, systemic, and connived causes of aggressive war.
(1) The text quoted in the title represents Greiser’s own words. See ‘Trial of Gauleiter Artur Greiser’, The UN War Crimes Comm’n, Law Reports of Trials of War Criminals, 13 (1949) 70, 98 [hereinafter Law Reports].
(2) His first name also is reported as Artur, for example, in the Law Reports.
(3) Telford Taylor , Nuremberg and Vietnam: An American Tragedy (Chicago, IL: Quadrangle Books, 1970), 87.
(4) Catherine Epstein , Model Nazi: Arthur Greiser and the Occupation of Western Poland (Oxford: Oxford University Press, 2010).
(5) See above n 1. The Law Reports summarize the indictment, the trial, and the judgment (in places through direct excerpted quotation of the language of the Tribunal itself). The Law Reports also provide analysis of key legal issues and factual background. That said, the Law Reports do not verbatim reproduce the judgment.
(16) Matthew Lippman , ‘The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later’, Ariz. J. Int’l & Comp. L. , 15 (1998), 448.
(18) SHOAH Resource Centre, The International School for Holocaust Studies, Yad Vashem, Greiser, Arthur (document on file with the author).
(19) Law Reports, above n 1, 88. Epstein reports the figure of 536,951. See Epstein, above n 4, 174, 192 (‘Greiser raised the percentage of Germans in the Warthegau from 6.6 percent of the population in 1939 to 22.9 percent by April 1944’.)
(20) Epstein, above n 4, 175–6 (‘Reich Germans looked down on ethnic Germans; ethnic Germans resented the Reich Germans; Reich Germans were often dismayed by the ‘un-German’ qualities of resettlers; the resettlers were angered by patronizing Reich Germans; ethnic Germans were jealous of resettlers; and the resettlers felt ill at ease among the ethnic Germans.’)
(24) Holocaust Education & Archive Research Team (2007), ‘Chelmno Death Camp’, Holocaust Research Project [website], <http://www.holocaustresearchproject.org/othercamps/chelmno.html> (accessed 26 February 2013) (‘The Chelmno death camp was under the direct command of SS-Gruppenführer Wilhelm Koppe, the SS and Police Leader in the Warthegau, who was under the direct command of Heinrich Himmler, but Koppe in many cases acted in co-operation with…Greiser’ and in addition noting that ‘Greiser visited Chelmno death camp personally to thank the Commando on their work’).
(30) See also Epstein, above n 4, 85 (‘This “moderate” Greiser has even found literary rendition. In The Tin Drum, Günther Grass’ masterpiece about the Nazi era in Danzig, Oskar Matzerath, the main character, recalled that ‘Greiser never made much of an impression on me. He was too moderate’) and 113.
(37) Subsequent decrees were adopted on 17 October 1946, and 11 April 1947. The 17 October 1946 Decree extended the jurisdiction of the Tribunal to all war criminals rendered to Poland for trial and over alleged war crimes regardless of their place of commission.
(38) The Decree of 31 August 1944, as modified, was eventually consolidated in a Schedule to the Proclamation of the Minister of Justice dated 11 December 1946.
(39) Alexander V. Prusin , ‘Poland’s Nuremberg: The Seven Court Cases of the Supreme National Tribunal, 1946–1948,’ Holocaust and Genocide Studies , 24 (2010), 1 (abstract).
(40) Marek Jan Chodakiewicz, ‘The Dialectics of Pain: The Interrogation Methods of the Communist Secret Police in Poland, 1944–1955’, Glaukopis 2:3 (2004–2005), available at <http://www.projectinposterum.org/docs/chodakiewicz2.htm> (accessed 26 February 2013) (noting also that ‘[t]he language of the August Decree…reflected the language of contemporary Communist propaganda’). As an aside, Article 4(1) of this Decree criminalized membership in ‘a criminal organisation established or recognised by the authorities of the German State or of a State allied with it, or by a political association which acted in the interests of the German State or a State allied with it’.
(41) Chodakiewicz, above n 40 (arguing that the language used in and extrapolated from the Decree ‘was a convenient propaganda device commonly employed to dupe the West into believing that the opponents of the Communists were pro-Nazi and that the brutal crushing of the independentist insurrection and the parliamentary opposition in Poland was simply a mop-up operation which fittingly concluded the anti-German struggles of the Second World War’).
(59) Law Reports, above n 1, 95. Although, in principle, under municipal Polish law witnesses are to appear in person, Article 11(1) of the Decree of 1946 exceptionally permitted ‘[a]ny records taken during the preliminary investigation and any public or private documents’ to be ‘read at the trial’. Article 11(2) added that: ‘Any records taken during the preliminary investigation within or without the country by the Polish authorities or by any allied authorities, or made by any private persons acting on their own initiative, or any other evidence given with a view to establishing the crime or bringing the criminal to justice, may be read at the trial’.
(68) David L. Nersessian , ‘The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals,’ Tex. Int’l L. J. , 37 (2002), 231, 253.
(72) Law Reports, above n 1, 108. The Polish government first proclaimed adherence to the London Agreement on 25 September 1945. Legislative ratification of this adherence ensued in 1947, as did promulgation in the Official Gazette, meaning that the London Agreement then became binding law in Poland. To be sure, this formal officialization post-dated Greiser’s trial.
(80) Epstein, above n 4, 317 (‘The indictment included some factual errors. It did not recognise that Greiser and Forster had been arch rivals in Danzig…It also stated that Greiser aided Forster in his being named head of state in Danzig—surely a galling charge, since Greiser had tried to keep Forster from assuming such a position. The section of the indictment dealing with Greiser’s actions in Danzig was the least accurate part of the indictment’.)
(83) Epstein, above n 4, 328 (but also noting that, despite the fact that ‘[b]y western standards [Greiser] hardly had a fair proceeding’, overall, ‘the court arrived at a fair estimation of Greiser’s crimes’.) For Epstein, ‘[d]espite the flaws of the proceedings, Greiser’s trial served both justice and history reasonably well’: at 329.
(91) Matthew Lippman , ‘Prosecutions of Nazi War Criminals before Post-World War II Domestic Tribunals’, Miami Int’l & Comp. L. Rev. , 8 (1999–2000), 1, 111.
(96) Nor has Greiser substantially figured in the work of influential publicists or experts in international humanitarian law. For example, the International Committee of the Red Cross (ICRC) Rules on Customary International Humanitarian Law refer to Greiser only four times in the comprehensive section on practice: in regard to rules relating to public and private property in occupied territory, pillage, forced labour, and the act of displacement. See ICRC, ‘Practice’, Customary IHL, <http://www.icrc.org/customary-ihl/eng/docs/v2> (accessed 26 February 2013).
(97) Case No. IT-95-16-T (14 January 2000), .
(98) Case No. IT-95-16-T (14 January 2000), ; see also  footnote 904 (noting that Greiser was charged with the persecution of Polish as well as Jewish people).
(99) Case No. IT-95-16-T (14 January 2000), .
(100) Case No. IT-95-16-T (14 January 2000), .
(101) Case No. IT-97-24-A (22 March 2006), .
(102) Case No. IT-97-24-A (22 March 2006), .
(103) Case No. IT-97-24-A (22 March 2006),  footnote 957.
(104) Case No. IT-97-24-A (22 March 2006), .
(105) Case No. IT-97-24-A (22 March 2006), .
(106) Case No. IT 98-34-A (3 May 2006).
(107) Case No. IT 98-34-A (3 May 2006), .
(108) Case No. IT 98-34-A (3 May 2006), .
(109) Case No. IT 98-34-A (3 May 2006), .
(110) Case No. IT-98-33-T (2 August 2001),  footnote 1132 (specifically noting the Greiser case for the proposition ‘that the programme implemented by the Nazis corresponded to a systematic programme of genocide which involved inter alia the extermination of national and racial groups’).
(111) Case No. IT-00-39-T (27 September 2006),  footnote 1645.
(112) Drumbl, above n *, 299 (noting that Greiser is ‘not discussed in the otherwise comprehensive Historical Review of Developments Relating to Aggression, undertaken by the Secretariat for the Preparatory Commission for the International Criminal Court’).
(113) Resolution RC/Res.6 (11 June 2010) (also setting forth proposals for the exercise of jurisdiction over the crime of aggression).
(114) Proposed Article 25 (3bis) provides: ‘In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.’ Element 2 to the proposed amendments to the Elements of Crimes for Aggression requires that the ‘perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression’, while recognizing that ‘more than one person may be in a position that meets these criteria’.
(115) Mark A. Drumbl , Atrocity, Punishment, and International Law (Cambridge: Cambridge University Press, 2007).
(116) I.G. Farben Trial , The UN War Crimes Comm’n, Law Reports of Trials of War Criminals , 10 (1949), 37–8 ; Krupp Trial , The UN War Crimes Comm’n, Law Reports of Trials of War Criminals , 10 (1949), 127–8 (Judge Anderson’s concurring opinion) (also underscoring deterrence as a penological goal of proscribing aggressive war).