by Yale F. Edeiken
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 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:
The purpose of Porter's article, therefore, was not to present edited paraphrases but the text, exact and complete. 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.
The problems with the text of the 1907 Convention 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. He states, for example:
This is, as anyone who has examined the primary documents knows, a misrepresentation. While the U.S. did not ratify the Convention, it entered a separate convention signed by the president of the U.S. on July 27, 1929. Pursuant to this treaty American forces were instructed to abide by all articles of the various Geneva and Hague Conventions. It should be noted that Germany was, as well, a signatory to the 1929 Convention which did little more than repeat the provisions of the 1907 Annex.
Porter is even less honest when he deals with the specific provisions of the Convention. One of the most egregious examples is Porter's analysis of Article 6 in which he states: "Article 6 states that belligerants [sic] may utilize the labour of prisoners of war, officers excepted, for the public service, for private persons or their own account." To which Porter comments: "German and Japanese 'slave policy' was perfectly legal insofar as it applied to members of resistance groups or lower ranking military personnel."
Leaving aside the point that both Germany and Japan required officers to do slave labor, an examination of the Article in question shows a far different text than Porter represents. The actual text is:
Note how Porter deletes material from the original text which modifies it in a significant manner. It is well-known, for example, that Speer - the director of war production - utilized slave labor for war work. It was one of the charges brought against him at Nuremberg. Another indisputable example is the rubber plant at Monowitz (Auschwitz III) which was staffed by slave labor. By deleting the important modifier Porter fraudulently misrepresents what is allowed. This pattern of deception also includes the elision of the clauses that follow the initial statement and which explain it. They are:
Thus it can be seen that Porter has deliberately mischaracterized the meaning of the provision. It is not a provision which allows slave labor as he asserts. It is, rather, a provision that allows POWs to enter a labor market unrelated to war production and receive wages for their work. Needless to say, the Nazis failed to abide by the provisions of Article 6 in their use of slave labor.
This pattern is repeated in Porter's analysis of Articles 1 and 2 which deal with partisan warfare. This example is quite important for it is the basis for the claims of the deniers that partisan warfare is, per se, unlawful. The meaning of the two articles was crucial to the purpose of the Convention. This was recognized by the drafters and signatories who, as part of the preamble to the Regulations of the Convention, wrote:
This important statement of principle enunciated by the signatory powers about the interpretation of these sections is entirely ignored by Porter. Pay close attention to what Porter writes and compare it to the actual text of these Regulations. "War Crimes Trials" states:
Porter not only fails to understand these articles, he reports them inaccurately and in a distorted fashion. When the actual language of these two articles is examined it is clear that they have exactly the opposite meaning from that given by Porter. The actual text is:
Note that contrary to Porter's modified version, the articles do not prohibit guerilla movements but specifically allow them if certain conditions are met. Because of his creative editing it is made to appear as though Article 1 prohibits partisan warfare and gives as a reason that real "belligerants" have certain attributes which, presumably, partisan groups do not possess. As can be seen from the language which Porter deletes, the actual meaning of the provision is that guerillas are legitimate as long as they meet certain requirements.
Porter's distorted description of Article 2 is even more misleading. Without quoting a single word from the article, Porter declares that it prohibits guerilla warfare. The article actually expands the definition of legitimate belligerents where military control has not been established. In that case, which would have applied to much of the Ukraine for example, two of the requirements for a guerilla group to be classified as legitimate belligerents are eliminated.
Porter uses a similar, but slightly different technique, in his analysis of Article 32. "War Crimes Trials" states in its entirety:
Based upon this incomplete rendition of Article 32 and the complete deletion of article 33, Porter asserts: "The detention of Rudolph Hess was illegal."
The text of the Convention is, however, significantly different from the Porter version. The complete text of the Convention provisions concerning parlementaires states:
It can be seen from the actual text that there are two requirements for a person to be qualified as a "parlementaire." The first of these (reported by Porter) is that a parlementaire must be authorized to conduct his negotiations.
This Regulation cannot be applied to Hess. He was clearly not authorized to enter communications with Great Britain. William Shirer writes in The Rise and Fall of the Third Reich that Hitler was "mystified" at Hess' actions (page 835) and the official communiqué on this incident announced "It seemed that Party Comrade Hess lived in a state of hallucination, as a result of which he felt he could bring about a understanding between England and Germany." (quoted by Shirer, page 838) There is no indication that Hess was authorized to deal on behalf of the Third Reich. In fact, Hess did not claim such a status, relying instead on his position as a cabinet minister (Shirer, page 835).
Nor did Hess have the purpose of negotiating with his opponent as is the basic function of a parlementaire. He wanted to negotiate with the Duke of Hamilton - a comparatively low ranking officer in the RAF - rather than the government and his intent was to provoke an insurrection against the authorities with which a parlementaire is to communicate. As Ivonne Kirkland (former First Secretary of the British Embassy in Berlin) reports:
Not only did Hess not meet the basic requirements for parlementaire status in that he was not authorized to make the trip and he specifically denied that he was attempting to negotiate with his opponent, but he failed to meet another requirement as well.
Porter deletes the clause of the Convention which requires of a parlementaire that he "advances bearing a white flag." This, again, is a significant omission. It is obvious that a legalistic interpretation of this provision would be unfair. It is silly to expect an airplane to be displaying a flag and it can be argued that, even had Hess provided himself with one, his plane crashed in flames. But there was nothing to prevent Hess from complying with the spirit of this clause. That is, notify his opponent in advance and ask for a parlay. He did not make such a notification which could have been done by radio from his airplane. Further he abuses the concept of a parlementaire in that he gave a false name ("Alfred Horn") (Shirer, page 835). This vitiated any claim to be a legitimate parlementaire.
The provisions concerning parlementaires are a continuation of the medieval laws regarding the status of the herald and the white flag is not just a technical requirement. It constitutes the manner in which a legitimate parlementaire announces himself. It is the duty of the parlementaire to announce his status before he approaches the opponent so that the opponent has, as stated in Article 33 (which Porter omits) the option of refusing to receive the parlementaire.
It is at this point that Article 33 (also deleted by Porter) becomes crucial. That Article provides that the opponent has the right to refuse the approach of the parlementaire. Hess did not allow the British to exercise this right. Instead, unannounced, Hess popped up in Scotland requesting to meet with a military officer of no great rank (the Duke of Hamilton was not a general officer, he was "a wing commander in the RAF" (Shirer, page 835) and demanding that the British government (to which the negotiations of a legitimate parlementaire must be addressed) be dissolved.
Since Hess met none of the conditions of a legitimate parlementaire, the provision of Article 32 concerning his "inviolability" cannot be applied and the treatment of Hess as a prisoner of war was justified. If, as some deniers assert, the Porter version of the Convention should be accepted as authoritative the reader has no opportunity to make a complete analysis of the claim. The simple reason that a reader was not provided with this opportunity is that Porter decided to present an abridged and modified version of the Convention which distorted its meaning.
Another example of this patent dishonesty can be found in Porter's analysis of Article 3. Porter represents the text of Article 3 of the regulations as being:
Please note that this is represented as the complete text of Article 3. This is NOT the actual text of the Convention. It is:
Not only is the text far different from Porter's representation but there is a crucial difference in meaning which Porter creates. The text clearly refers to "a belligerent party" as, from the context of the second sentence (deleted by Porter), means the nation conducting the war. In Porter's version this becomes "belligerants" [sic] which refers not only to the parties but could be interpreted to apply to individuals as well. The drafters of the Convention used the word "belligerents" to mean individuals in Article 2 of the Regulations. It is clear that the meaning forced upon this article by Porter's editorial change was specifically rejected by the drafters who specified that this Regulation applied to "a belligerent party."
Relying on this mendacious rendering of the text, Porter announces: "This is self-explanatory. No trials were contemplated."
This is, at best, a rather audacious assertion. The first and most obvious reason is that - except in Porter's fraudulent version - no reference is made to individuals. The text refers only to the liabilities of the state. And, certainly, it contemplates some sort of trial to determine liability. In fact, that was exactly what was done after World War I. A fine account of the action against Germany by the United States for sabotage conducted in this country prior to its entry into World War I can be found in "Sabotage at Black Tom" by Jules Witcover (Chapel Hill, 1989).
If Porter's point - as the theme of "War Crimes Trials" and Porter's terse comment would indicate - is that Article 3 did not contemplate trials of individual war criminals, he is, likewise in error. The crucial question is what Article 3 was meant to do. Porter can only be correct if Article 3 was drafted to provide an exclusive remedy for war crimes. If, on the other hand, it was drafted to either create a cause of action or to codify an existing right, Porter's statement cannot stand.
Consider an analogy. There is no right under Anglo-American common law to sue for the death of an individual. All such lawsuits are brought under specific statutory enactments known and "wrongful death and survival" statutes. None of these statutes mention criminal law. If Article 3 only creates or codifies a cause of action, as Porter claims, his argument would be similar to a drunken driver who killed somebody asking to have the criminal case against him dismissed on the grounds that the wrongful death and survival statutes make no mention of criminal penalties.
A major impediment to the claim that Article 3 creates an exclusive remedy is, simply, that the Convention makes no such statement. The standards of statutory interpretation prohibit the inference of such restrictions. Had the drafters wished to restrict the remedies of an aggrieved party, they would have said so. In fact, the drafters went out of their way to indicate that the text of the Convention was neither complete or restrictive in nature:
Further it cannot be argued that the trial of war criminals was a concept unique to the trial of the Nazis after World War II or unknown to international law. Articles 227 through 230 of the Treaty of Versailles called for such trials of war criminals. As Telford Taylor wrote in The Anatomy of the Nuremberg Trials (1992):
There are, therefore, several reasons to conclude that Porter's conclusion about Article 3 is in error but, more important is his dishonest behavior in re-writing Article 3 and presenting it as the actual text of the Convention. His failure to accurately present Article 3 should call into question the credibility of his work.
This is, by no means, an exhaustive analysis of the defects in the arguments that Porter presents. There are similar defects in his analysis of Regulations 25, 27, and 56 and Regulation 43. In the former case, based upon his paraphrased version, Porter asserts that the bombing of Dresden was improper. He failed to report or comment on the provision of this Regulation which places an absolute duty to indicate or mark such possible targets. In the case of a city, that requires the declaration of a city as an "open city." This was not done in any of the cases cited by Porter.
Porter's analysis of Regulation 43 - which, he states, mandates cooperation with occupying powers - is based on his assumption that the Hague Convention is the exclusive law covering what was done by the Nazis during their occupation. Whatever the provisions of the Hague Convention the valid laws of a sovereign entity can take a rather jaundiced view of citizens who attach themselves to an invader and engage - as was the case with the Nazi occupation - murder, plunder, and treason. In fact, the prosecutions of collaborators were not based on the Hague Convention but on national criminal law.
Porter also fails to state that such co-operation is dependent on the acts of the occupying power being lawful. Regulations 48 and 49 - as well as Regulation 43 - are clear that it is the affirmative duty of the occupying power to administer the territory in a legimate manner.
It should require no reference to demonstrate that the Nazis did not follow these requirements. They murdered, they plundered, and, in the eastern territories, they attempted to eliminate and displace the native population. As such the requirement for co-operation with legitimate efforts to administer an occupied territory.
The final point that must be made is a comparison between Porter's paraphrases and the text of the Hague Convention to demonstrate that these errors were, in fact, a major portion of his essay. Every Article of that Convention mentioned by Porter and Porter's complete description of that Article are printed below so that any reader may compare the two texts to determine whether Porter, as he claims, relates "exactly" what the Convention states, and whether there was a consistent - rather than occasional - misrepresentation of the Hague Convention:
PREAMBLE, ARTICLE 3
REGULATIONS, ARTICLES 1 and 2
REGULATIONS, ARTICLE 5
REGULATIONS, ARTICLE 6
REGULATIONS, ARTICLE 7
REGULATIONS, ARTICLE 8
REGULATIONS, ARTICLE 20
REGULATIONS, ARTICLE 23
REGULATIONS, ARTICLES 25, 27, and 56
REGULATIONS, ARTICLE 32
REGULATIONS, ARTICLE 43
REGULATIONS, ARTICLE 46
Although Porter claims that he wishes to present "exactly" what is written in the Convention, he does exactly the opposite. Of the Preamble to the Convention and 14 of the Regulations to which Porter refers, only two (Articles 20 and 43) are accurate representations of the text of the convention. Porter's other citations are replete with substantial modifications and deletions which change the meaning of the article which he presents. In several cases an inaccurate paraphrase is presented as a direct quote. Porter, further, ignores any Article which contradicts his thesis that the Third Reich committed no war crimes. For example neither Regulations 18 or 50, both crucial to the trials of war criminals was cited. They state:
Porter was correct in one respect: as with any statute or treaty, it is important to determine what the Hague Convention "exactly" states. Unfortunately he does not deliver on his promise. A creditable job of cut-and-paste to present "exactly" what the text states is not a difficult task; Porter didn't do such a job. He decided, instead, to edit and paraphrase the provisions of the Hague Convention and ignore any provision which contradicted his agenda, Porter's presentation is so inaccurate that, in many cases it is impossible to determine the intended meaning of the Hague Convention and, in many cases promotes a defective interpretation of that treaty.
Just as Porter did a shoddy job of cut-and-paste, it would have been a simple matter to check the accuracy of his work. Even a random check would have revealed that 13 of the 15 substantive "quotations" presented by Porter are in error. Obviously CODOH made no check of the easily available primary sources when they published the article.
This brief analysis demonstrates that "War Crimes Trials" is replete with deliberate distortions, fraudulent representations of the text of the Conventions, and factual errors. Porter's work is not only a failure but a rather dismal one. Porter's technique of misquotation and factual error would not be tolerated in any legitimate academic community or any other setting where factual accuracy is required. It would never survive the process of legitimate peer review. It is only in the shadow world of the lunatic fringe of those who deny the Holocaust where efforts like "War Crimes Trials" find acceptability. And it is only the credulous and those with a specific agenda who can consider "War Crimes Trials" as either convincing or authoritative.
The inescapable conclusion is that the process of writing "War Crimes Trials" was defective or dishonest and the process of publishing it was defective or dishonest. "War Crimes Trials" is so flawed that it is utterly worthless except as an example of a failed attempt to defend the depredations of the Nazis.
Yale F. Edeiken graduated from law school in 1974. Since 1983 he has practiced in Pennsylvania where he specializes in litigation. In that period he has written over 200 legal briefs and memoranda.
The complete text of the Hague Conventions cited here can be found at http://www.yale.edu/lawweb/avalon/lawofwar/lawwar.htm.
The complete text of the Treaty of Versailles can be found at http://lib.byu.edu/~rdh/wwi/versailles.html.
Last modified: February 18, 1999