From the Holocaust to Darfur, war criminals elude justice

The most notorious living perpetrator of genocide can sleep a little easier. 

The International Criminal Court (ICC), which five years ago indicted Sudanese President Omar Hassan al-Bashir for organizing the genocide in Darfur, recently suspended further action on Darfur because of the failure of the United States and other countries to help bring Bashir to justice. 

Ironically, the ICC’s announcement came just before the 70th anniversary of a long-forgotten double-cross by the Roosevelt administration of its own ambassador to the Allied commission on Nazi war crimes.

Bashir was indicted in 2009 for sponsoring the Arab militias that have slaughtered an estimated 400,000 members of non-Arab tribes in the western Sudanese region of Darfur. He became the first sitting president to be charged with war crimes.

But when it came to actually arresting Bashir, neither the U.S. nor any other country has stepped up. It’s not that the U.S. is incapable of capturing fugitive terrorists and tyrants: recall how American commandos intercepted the murderers of American tourist Leon Klinghoffer, and how they brought Panama’s Manuel Noriega to justice. 

The problem, rather, is that the Obama administration has not wanted to offend Bashir’s allies: Russia and China, which are Sudan’s main suppliers of military and economic assistance; the Arab League, which embraces Bashir as kin; and the African Union, which sees him as a victim of Western colonialism.

As a result, the Obama administration has almost never even criticized governments that have hosted visits by Bashir—even when they were countries that are major recipients of U.S. aid, such as Egypt, Saudi Arabia, Libya, and Iraq. The administration also blocked a congressional effort to penalize countries that invite Bashir.

It’s not the first time political considerations have interfered with prosecuting perpetrators of genocide.

In 1942, as World War II and the Holocaust raged, the American and British governments established a War Crimes Commission. Former ambassador Herbert Pell, was named as the U.S. representative to the commission. He headed for the opening session in London, thinking that the Franklin D. Roosevelt administration favored prosecuting all Nazi war criminals.

In fact, however, the State Department was determined to limit postwar trials to only the most prominent and notorious war criminals, out of concern that prosecuting large numbers of Germans could harm America’s relations with Germany after the war. A State Department lawyer shadowed Pell, contradicting him at policy meetings and sending negative reports about him back to Washington.

In late 1944, Pell flew from London to Washington for the wedding of his son, future U.S. senator Claiborne Pell. He also took the opportunity to see President Roosevelt. Seventy years ago today—Jan. 9, 1945—Pell met with the president in the Oval Office. A few days earlier, the British chairman of the war crimes commission had resigned. A seemingly friendly and supportive FDR told Pell, “Get back to London as quick as you can and get yourself elected chairman.”

But even as he was saying those words, Roosevelt knew that Pell wasn’t going anywhere. He didn’t mention what he already knew but was not going to prevent: the State Department was about to fire Pell, on the pretext of not having sufficient funds in its budget to pay him. 

Acting Secretary of State Edward] Stettinius gave Pell the shocking news that same afternoon. “I offered to serve for nothing,” Pell later recalled, “but he said this could not be done either.” Pell and FDR never spoke again, and his letters to Roosevelt requesting a meeting went unanswered.

Pell did not give up easily. With the aid of the Jewish activists known as the Bergson Group, he held a press conference to blow the story wide open. Embarrassed by the negative publicity, the State Department reversed its position and agreed that all Nazi murderers of European Jews should be prosecuted. 

Those who wanted to go easy on war criminals had the last laugh, however. By the time the war ended, many U.S. officials believed that with the Cold War looming, repairing America’s relations with Germany was more important than prosecuting Nazis. Thus, while the top Nazi killers were tried at Nuremberg, many thousands of other Nazi war criminals were either not prosecuted or were given sentences “light enough to please a chicken thief,” as one Nuremberg prosecutor put it. 

Moreover, many of those who were convicted and jailed were soon set free, thanks to former Assistant Secretary of War John McCloy, who became U.S. High Commissioner for Germany in 1949. One-hundred and four German industrialists were convicted of war crimes, and 84 were still in jail when McCloy arrived in Germany. Of those 84, McCloy reduced the sentences of seventy-four to time already served, thus setting them free immediately.

After the Holocaust, Cambodia, Rwanda, and Darfur, one would think the Free World would have finally learned that prosecuting perpetrators of genocide is essential to deterring future mass killings. Yet seventy years after the Nazis, too many world leaders continue to put political considerations above the pursuit of justice.

Dr. Rafael Medoff is founding director of The David S. Wyman Institute for Holocaust Studies, and author of 15 books on the Holocaust, Zionism, and Jewish history.