05 May Symposium on the UNWCC: War Crimes Against Culture – Poland’s Charge File Submissions to the UNWCC
[Michael Fleming is a Professor at the Polish University Abroad, London.]
During the Second World War, the Polish Government in Exile, based in London from the summer of 1940, pursued a twin-track policy to ensure German crimes taking place in occupied Poland were brought to the attention of the international community and that those responsible would face justice. In the first instance, the Polish Government highlighted German transgressions of international law by repeatedly providing examples of how Germany contravened the Hague Conventions (1907). The Polish White Book of May 1941 highlighted multiple contraventions of Hague Convention IV and, in the second Polish Black Book, published in January 1942 just after the St James’s Palace Declaration on Punishment for War Crimes, repeated reference was made to the violation of Article 56. That Article read:
The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.
The Polish Government received regular reports from occupied Poland from the Polish Underground State via courier and, from the end of 1940, by radio. As a result, the Polish Government was kept informed of German crimes, including those against culture. In 1940, Prime Minister Władysław Sikorski appointed the art historian Karol Estreicher to catalogue Poland’s cultural losses. In addition to publicising information about the German occupation through official publications and statements (such as the joint Polish-Czechoslovak statement of November 1940) and via various forms of soft diplomacy, representatives of the Polish Government made significant contributions to debates on war crimes in unofficial fora such as the London International Assembly and the International Commission for Penal Reconstruction and Development, both of which were founded in the autumn of 1941.
Elsewhere, Polish representatives (Karol Estreicher, Bolesław Leitgeber) on the international committee of the Central Institute of Art and Design (CIAD), an organisation that was established in 1939 to assist artists, designers and craftspeople, worked to encourage that organisation to consider the plundering activities of the occupier. Following the signing, in January 1943, of the Inter-Allied Declaration against Acts of Dispossession committed in Territories under Enemy Occupation or Control, in which the signatories (including Poland) expressed their intent to ‘defeat the methods of dispossession practised by the Governments with which they are at war against the countries and peoples who have been so wantonly assaulted and despoiled’, Polish representatives at CIAD agitated to ensure appropriate steps were actually taken.
In late 1942, Estreicher, who led the Polish Government’s Office for the Revindication of Cultural Losses, visited the United States and informed different audiences of these losses. According to historian Wojciech Kowalski, Estreicher’s visit encouraged the American Council of Learned Societies to establish the Committee for the Protection of Cultural Treasures in War Areas. Estreicher later participated in the work of Vaucher Commission (established in April 1944). Crimes against culture were increasingly recognised on both sides of the Atlantic.
The development of knowledge in the early part of the war, both in regards to German crimes in occupied Europe and in relation to legal measures that could be taken to hold those responsible to account, informed debates at the United Nations War Crimes Commission, founded in October 1943. Representatives of the Polish War Crimes Office (created in November 1943) were cognisant of the pre-UNWCC discussions about war crimes, which had taken place in a range of unofficial fora, and had taken part in the Polish Government’s deliberations in 1942 and early 1943 on the draft Polish law relating to war crimes. That law, the ‘Decree of the President of the Republic of Poland on Criminal Responsibility for War Crimes’, which came into force at the end of March 1943 (and was the first domestic law passed by an Allied state on war crimes), provided the Polish War Crimes Office with guidance on how it should develop its agenda within the UNWCC.
The Polish Government in Exile and the UNWCC
The Polish War Crimes Office, headed by jurist Jerzy Litawski, and represented at the UNWCC by Stefan Glaser, and later by Tadeusz Cyprian, advanced the Polish agenda on war crimes in two ways: first by participating in the UNWCC’s plenary and sub-committee deliberations, second by submitting charge files against alleged war criminals. Via these interventions, the Poles aimed to expand the remit of the UNWCC beyond that envisaged by the British Foreign Office and the US State Department. In this effort, Polish representatives were aligned with the US representative, Herbert Pell, and the Czechoslovak representative, Bohuslav Ečer, among others. Significantly, the UNWCC never defined ‘war crimes’, as doing so, as the official history of the UNWCC explained, would require ‘limitation and exclusion’. The lack of a definition provided space for Glaser, Pell, Ečer and others to contest the conceptualisation of war crimes favoured by the Foreign Office.
On a practical level, the Versailles list of war crimes, developed in 1919 by the Inter-Allied Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, provided a guide for national war crimes offices as they prepared files to submit to the UNWCC. The UNWCC would review the submitted files to determine whether a prima facie case against the accused had been established. The Versailles list included a number of crimes that related to culture, such as the ‘wanton destruction of religious, charitable, educational and historic buildings and monuments’ but also, more expansively, ‘attempts to denationalise the inhabitants of occupied territory’. Though the concept of ‘denationalisation’, as Raphael Lemkin noted in Axis Rule in Occupied Europe, had its limitations, especially when conceived in a very strict sense of deprivation of citizenship, the Polish Government alluded to this idea in its statements (December 1940) and official publications, to highlight German crimes against culture.
For the Polish Government, crimes against culture included crimes against people (representatives of culture, such as scholars and cultural elites), crimes against cultural artefacts (books, objects in museums, monuments), crimes against property and crimes against religion, and this was reflected in the Polish War Crimes Office’s charge file submissions to the UNWCC. Charge file 7, which was received by the UNWCC in late February 1944, accused fourteen Germans of destroying the monument of King Bolesław Chrobry at Gniezno – an act that was covered by item XX on the Versailles list of war crimes. The indictment evoked the idea of denationalisation in stating that:
the Germans immediately after the occupation of Poland took measures of truly teutonic thoroughness to destroy and remove the monuments of Polish arts and Polish culture. Their aim in doing so was on the one side the annihilation of all visible signs of Polish life and on the other side the weakening of the Polish national spirit and the power of resistance.
Similar framing was used in charge file 12, submitted in March 1944. This indictment focused on the treatment of 169 scholars from Kraków, who were arrested and deported to camps. It stated that:
Nowhere is the real aim of the German authorities in Poland shown so clearly as in the field of culture. The aim which the Germans keep in view is the transformation of the Polish nation into a community of slaves deprived of their own culture and national tradition, and forming a reservoir of labour for the benefit of the German Reich.
Seven Germans, most notably Hans Frank, the governor of the Generalgouvernement, were accused of various war crimes, including murder (item I on the Versailles list).
File 21, which focused on crimes against the Polish clergy, also noted the destruction of ‘churches, synagogues and religious objects’. Subsequent indictments referred to crimes against property (Jewish property – file 33; public and private property – file 36). The penultimate file (file 40) submitted by the Polish Government in Exile (in July 1945) focused on the ‘system of suppression of Polish culture which expressed itself among others in the destruction of libraries, bookshops, circulating libraries and archives and in the blocking of publishing activities’. All these indictments referred to Hague Convention IV (1907).
The Polish Government (Warsaw) and the UNWCC
With the recognition of the Provisional Government of National Unity in Warsaw in July 1945, the Polish Government in Exile’s direct involvement with the UNWCC was brought to an end. However, a number of individuals connected with that government shifted allegiance and continued in their efforts to hold war criminals to account in association with the new government in Warsaw. This included Tadeusz Cyprian, Mieczysław Szerer, Manfred Lachs and, in regards to crimes against culture, Karol Estreicher. The broad approach adopted by the Polish Government in Exile in regards to crimes against culture was continued by the Polish War Crimes Office under the auspices of the government in Warsaw.
Through 1946 to March 1948 when the UNWCC was closed down, the Polish War Crimes Office submitted charge files that highlighted both the looting and destruction of cultural artefacts and the broader German programme to ‘denationalise’ Poles. For instance, charge file 1234 submitted in November 1947 recorded the pillage of museum and church property in Kraków by two Germans. The most comprehensive account of German crimes against culture was provided in charge file 1331, submitted in December 1947. This extensive indictment charged twelve individuals with the murder and torture of the Polish intelligentsia, pillage and the destruction of religious, charitable, educational and historical buildings and monuments. Drawing on material gathered by the Polish Underground State during the war the charge file stated:
From the very beginning of the German invasion of Poland, the occupants undertook a planned, systematic and ruthless destruction of Polish cultural heritage. From the first day of invasion until the last, this wanton work was not interrupted. To “annihilate” entirely the Polish culture, the Germans aimed to inflict a mortal blow on its past and present, thus eradicating its future.
In the final significant charge file relating to crimes against culture (charge file 1508), submitted in February 1948, the Polish War Crimes Office referred to the destruction of Warsaw (including the ghetto in 1943), the looting of Jewish property, and the theft of art collections and libraries, and pointedly noted that ‘All these war crimes constitute violations of articles 46, 47, 53, 55 and 56 of the Hague regulations.’ It accused 198 people of four war crimes from the Versailles list, in addition to violations of Polish law.
The Polish Government in Exile was alert to German war crimes against culture. In its official publications and in a range of international fora, including the UNWCC, the government framed these crimes as a concerted plan to destroy the Polish nation. The Polish nation was conceived in terms of its dominant culture. This framing, while accommodating different types of crimes against (the dominant) culture, also allowed crimes specifically against Jewish culture to be marginalised. However, German crimes against Jews more generally were not overlooked. Multiple files indicting people responsible for the murder of Poland’s Jews were submitted by the Polish War Crimes Office to the UNWCC, and the process that resulted in the biological extermination of Jews was highlighted in a sophisticated indictment that charged Adolf Hitler and twenty-three others with war crimes (file 34).
Jurists at the Polish War Crimes Office stretched language and concepts to accommodate the reality of German crimes. Nevertheless, the idea of ‘denationalisation’ was limited by the socio-cultural context in which it was promulgated and it was unable to effectively describe the destruction of multiple cultures in German-occupied Poland. Lemkin’s notion of ‘cultural genocide’ is helpful as it can aid in the recognition of crimes against non-dominant cultures in a multicultural state. Consideration of the attention paid at the UNWCC to crimes against culture may assist jurists today in reflecting on the limitations of our conceptual apparatus in relation to similar international crimes, and in prosecuting those responsible.