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Nuremberg Calling?

Shane Darcy

Almost seventy-five years have passed since William Joyce was executed, yet we are still learning about aspects of his life, politics, and ultimate fate. The infamous Nazi collaborator, who grew up in Galway and is buried there, was executed by hanging in Wandsworth prison in London on January 3rd, 1946. The propaganda broadcasts for Nazi Germany by “Lord Haw Haw” were heard by millions of British (and Irish) listeners during the Second World War, activities which saw him tried and convicted in September 1945 after his fortuitous capture in Germany by British forces. Joyce was the last person to be sent to death for the crime of treason in the United Kingdom.

The life and trial of William Joyce have been well-documented and reflected upon, from Rebecca West’s contemporary coverage of his case for The New Yorker to Mary Kenny’s somewhat sympathetic portrait in Germany Calling (2003). The trial of the “most notorious” traitor of the Second World War recently featured in Thomas Grant’s Court Number One: The Old Bailey Trials that Defined Modern Britain (2019). But the main contender to be the definitive historical account of Joyce’s political activities is Colin Holmes’s Searching for Lord Haw Haw (2016). Among the myriad details and sharp insights in Holmes’s book was his coverage of the suggestion of the time that Joyce be sent to Germany to stand trial alongside the leading Nazis at Nuremberg. The concern of the British authorities that his treason trial could collapse because of legitimate questions over his nationality had prompted planning for such a contingency.

The “trial of the century” convened at Nuremberg by the four main Allies – the United States, the Soviet Union, the United Kingdom and France – tried the highest-ranking political and military leaders of the Third Reich. Of the two dozen indictees charged with crimes against peace, war crimes and crimes against humanity, ten were executed (Hermann Göring committed suicide before the sentence could be carried out, and Martin Bormann, tried in absentia, was already dead). The Nuremberg trial was the centrepiece of the Allies’ postwar accountability efforts in Europe and the precursor to the International Criminal Court which sits in the Hague today. As significant a figure as William Joyce was in Britain, could this propagandist and purveyor of anti-Semitic hate speech really have been considered a “major war criminal” and tried alongside the highest ranks of Nazi Germany?

William Joyce was born in Brooklyn in 1906, to Gertrude Emily Joyce from Lancashire and Michael Joyce, who had emigrated from Co Mayo in 1888 and acquired United States citizenship in 1894. These details of his birth proved crucial at his trial, showing that he was “incontrovertibly an American citizen, not a British one”, as Grant put it, despite having held a British passport for many years. The Joyce family moved to Ireland, settling in Galway in 1913, where Michael Joyce became the general manager of a local bus company. He also bought and rented a number of properties to the Royal Irish Constabulary.

The Joyces were strongly loyal to Britain and William’s mother was determined “to raise an English gentleman”. The young Joyce acted openly on his anti-nationalist views. According to witness testimony in the Bureau of Military History, one Irish Volunteer said that “[o]ur people were very much opposed to young Joyce on account of his association with British forces”, recalling an incident when Joyce jeered and spat on him while in the company of a group of Auxiliary officers. Another volunteer claimed that Joyce was a scout for the Royal Irish Constabulary, the Black and Tans and the Auxiliaries, and that he played a part in the notorious execution of Father Michael Griffin in 1920. Joyce was said to have lured the priest to his death, calling to his house and asking him in Irish to attend to someone who had fallen sick. The IRA tried to kill Joyce in 1921.

Following a move to London, Joyce became deeply involved in far-right politics and played a significant role in the growth of English fascism. He was active with the British Fascisti, Oswald Mosley’s British Union of Fascists, and the National Socialist League, giving public speeches and writing newspaper columns and pamphlets. He was avowedly anti-communist and antisemitic, and used language which has been reprised in today’s toxic politics: “white civilization” was in danger of being surrendered “to the Orient”; government should be “free from the domination of international finance and Jewish money power”; “May Britain be great once again”. Joyce and other fascists, as Holmes also notes, “regarded the truth as an infinitely flexible commodity”.

Joyce earned his real notoriety, as well as the nickname “Lord Haw Haw”, for his propaganda activities in Nazi Germany after he moved there with his wife, Margaret, just before the outbreak of the Second World War in 1939. He obtained a post broadcasting for Germany’s English-language radio service, garnering millions of listeners to his programmes, which would open with the words “Germany Calling”. Joseph Goebbels, the Reich minister of propaganda, was highly impressed with Joyce’s work, describing him as “the best horse in our stable”. Joyce was awarded the Cross of War Merit, First Class in 1944, having become a German citizen in 1940.

In his final broadcast on April 30th, 1945, an apparently drunk Joyce lauded Germany’s spirit and the unity of its people, despite the looming defeat. He reminded his British listeners of “the menace from the East” presented by the Soviet Union. Having announced that he might not be heard from “for a few months”, he ended with “Es lebe Deutschland. Heil Hitler, and farewell.”

As the Second World War was unfolding, the Allies began planning for the trial of leading German military and political leaders as war criminals in the event of victory. The British prime minister, Winston Churchill, had favoured summary execution without trial for high-ranking Nazis, but the Americans successfully pressed for trials. The four main allies met in London in the summer of 1945 and agreed on the law and form of an international tribunal “for the prosecution and punishment of the major war criminals of the European Axis”. The tribunal would sit in Nuremberg, owing to the availability of a suitable venue and given its symbolism as the location for the Nazi Party’s annual rally.

Attention had also turned to the question of nationals of Allied countries who had collaborated with the enemy, whether at home or abroad. During the preparatory work for the Nuremberg trial, it was agreed that such Allied nationals should be tried before national courts. Justice Robert H Jackson of the United States Supreme Court, who represented the United States in the negotiations in London and was subsequently chief prosecutor for the United States at Nuremberg, wrote in his official report to President Truman how “each country, of course, is free to prosecute treason charges in its own tribunals and under its own laws against its own traitorous nationals, Quislings, Lavals, ‘Lord Haw-Haws’, and the like”.

The British deputy prime minister, Clement Attlee, had been asked in the House of Commons in 1944 “whether note is being taken of those British subjects who are assisting the enemy by broadcasting from enemy or enemy-occupied countries; and whether such individuals will be included in the category of war criminals and ultimately brought to trial”. Attlee explained that a distinction was being drawn between war criminals and traitors: “These individuals will not be included in the category of war criminals. They will be charged with offences against British law and brought to trial in the appropriate British court.” He was later asked if this would include “citizens of Eire, such as ‘Lord Haw-Haw’ ‑ William Joyce?” While Joyce had spent years in Ireland, there is no evidence of him claiming Irish citizenship in Holmes’s book.

In June 1945, the British attorney general, David Maxwell-Fyfe, told the House of Commons that it was “the firm intention of His Majesty’s Government to bring to trial as speedily as possible British nationals, amongst whom William Joyce is one, who have broadcast enemy propaganda”. Joyce was in the hands of British forces by this time. Although Goebbels had ordered that William and Margaret Joyce were “at all costs to be kept out of Allied hands”, Joyce was captured in Flensberg in Germany. He couldn’t resist speaking to a group of British soldiers out collecting wood, one of whom recognised his voice. When Joyce reached quickly into his pocket for his false papers, he was shot and wounded. Within a few weeks he was back in England and charged with treason for having “adhered to the King’s enemies”.

Few voices were raised in support of Joyce in official Ireland after he had been captured. The Dáil record shows that the subject was raised only by Oliver J Flanagan, the openly antisemitic TD, at the time an Independent deputy. (On July 9th, 1943 he had stated in the Dáil that “There is one thing that Germany did, and that was to rout the Jews out of their country […] Where the bees are there is the honey, and where the Jews are there is the money.”) Flanagan put it to the taoiseach, Éamon de Valera, in July 1945:

Is it not our duty to take appropriate steps in the event of any of our nationals abroad being in serious difficulties, such as William Joyce at the moment, who claims to be of Irish descent, who was born in one of the Twenty-Six Counties within the last 40 years? William Joyce claims that he is an Irish citizen and has no allegiance to the British King. I hold that if we are an independent State or if we are a republic, it is our duty to see that our nationals abroad are fairly and justly treated […]

Joyce was not born in Ireland, nor did he claim Irish citizenship. There does not seem to have been any intervention by the Irish authorities on the part of Joyce either before or after his trial.

The prosecution of Joyce for treason was led by Hartley Shawcross, who was appointed attorney general in August 1945. He would later serve as the lead prosecutor for the British at Nuremberg. The charge of treason was not straightforward on account of Joyce’s nationality. He was not being tried for complicity in the crimes of the Third Reich, but for giving “aid and comfort” to the king’s enemies under the Treason Act 1351 through his propaganda activities. The crime of treason, however, required an underlying duty of allegiance, which only British citizens would usually owe. Joyce was born in the United States and had obtained his British passport by fraud, claiming to be “British by birth”, before gaining German citizenship in 1940. Accordingly, as Grant put it, there were considerable “behind-the-scenes anxieties” that the prosecution might not succeed. The British asked the FBI to look into the claim that Joyce had been born in the United States, rather than Galway as he had previously claimed. The judge accepted that there was “overwhelmingly” evidence of Joyce’s American nationality.

During the course of Joyce’s trial, Shawcross sought legal advice from Professor Hersch Lauterpacht of the University of Cambridge, one of the world’s foremost international lawyers. Lauterpacht provided a detailed memorandum which underpinned the prosecution’s argument that a passport, even if obtained by fraud, gave rise to a duty of allegiance. Peter Martland claimed that Professor Arnold McNair of Cambridge had provided the brief which “cost William Joyce his life”, but Holmes has dismissed this claim. Shawcross also consulted with JH Morgan, a renowned constitutional law expert, asking his opinion on whether he had a chance to succeed in the prosecution of Joyce: “No, I don’t think you have, not unless the judge is prepared to make new law.”

Lauterpacht may not have been fully persuaded by his own argument of a duty of allegiance based on Joyce’s possession of a British passport. He concluded his memorandum to Shawcross of September 4th, 1945 with a suggestion that consideration be given to prosecuting Joyce at Nuremberg should the treason case not succeed. While Elihu Lauterpacht briefly mentions his father’s idea of prosecuting Joyce at Nuremberg in The Life of Hersch Lauterpacht (2010), Holmes provides further detail on the proposal. Lauterpacht put it to Shawcross that “it might be a matter for consideration whether the way ought to be left open for [his prosecution] under the Four Power Agreement”. The Soviets might be amenable to the suggestion, Lauterpacht wrote, given that Joyce had assailed them “with particular vigour and venom”.

Lauterpacht’s contemplation of Joyce standing trial at Nuremberg is unsurprising in some respects. He was not a mere bystander to the unprecedented creation of an international criminal tribunal, having provided advice to key representatives involved in the London negotiations, as well as to Shawcross during the trial itself. As Phillipe Sands recounts in East West Street (2016), Lauterpacht was instrumental in the adoption of the term “crimes against humanity” to describe the atrocities perpetrated against a civilian population during wartime, including a state’s own nationals. The term had been used previously – Roger Casement, who was also executed by the British for treason in controversial circumstances, had referred to “crimes against humanity” in the context of rubber slavery in the Amazon – but Lauterpacht’s intervention saw the concept adopted in an international treaty for the first time, and accepted as a core international crime. His proposal concerning Joyce, however, did not gain such traction.

Concern over the possible acquittal of Joyce was raised at a meeting of the British cabinet on September 18th, 1945. The home secretary, James Chuter Ede, said that “there appeared to be a possibility that William Joyce might be found not guilty of the charges brought against him, on the ground that he had at no time owed any allegiance to the British Crown”. MI5 were of the view that there would be “public outcry” if Joyce were to be acquitted. The home secretary proposed an interim measure:

To meet this contingency he had thought it right to have in readiness a direction providing for his internment as an undesirable enemy alien. The existence of this direction would enable Joyce to be held in custody until a decision could be reached as to his disposal.

It was suggested that “whether Joyce proved to be of German or of United States nationality, the best course might be to return him to Germany, where he could be dealt with either as a prisoner of war or as a displaced person”. The Cabinet agreed that the home secretary should consult with the United States given the questions over Joyce’s nationality.

Shawcross was not present at this Cabinet meeting, which may partly explain why the possibility of trying Joyce at Nuremberg was not raised at this time. Holmes explains, however, that the proposal was “a step too far” for the British, that the preferred policy was Joyce’s deportation to Germany. In any event, the judge in his case was persuaded that Joyce owed allegiance to the Crown “beyond a shadow of a doubt”. On September 19th, 1945, the jury convicted Joyce for treason after deliberating for less than half an hour. He was sentenced to death. He had remained silent throughout the trial, having only stated “not guilty” at the outset.

Joyce was unsuccessful in his appeal and was executed on January 3rd, 1946. Although Shawcross put it that it would be “an unthinkable outrage if the crime of treason was held not to be committed”, the trial and sentence have proven enduringly controversial, even beyond the circle of Joyce sympathisers. The historian AJP Taylor put it that “Joyce was hanged for making a false statement when applying for a passport, the usual penalty for which is a small fine”. Shawcross, Holmes informs us, was not “particularly proud” of the conviction of Joyce. According to his obituary in The New York Times, he said that Joyce had given him “the utter creeps. I never had quite the same reaction with respect to the Nuremberg defendants, perhaps because none of those fellows pretended to be English”. Had an acquittal come to pass, Shawcross could have faced the prospect of prosecuting Joyce once again, at Nuremberg, if Lauterpacht’s proposal had been reconsidered and implemented.

The Nuremberg trial marked the end of international law’s myopic focus on states. As the judges held, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” As to which individuals could be prosecuted, the charter of the tribunal seemed to cast a wide net, referring to leaders, organisers, instigators and accomplices. Those indicted, however, were almost all from the most senior positions of authority. Given the extent of the evidence of Nazi crimes, the tribunal had little difficulty in convicting the majority of the accused, notwithstanding some concern over retroactivity.

Had Joyce been sent to Nuremberg, he would have stood apart from the Germans on trial there not only on account of his nationality but also for his relative insignificance in the Nazi hierarchy. As he would have to have been tried for international crimes, rather than treason, the tribunal would have struggled to demonstrate his direct involvement in such crimes, notwithstanding his enthusiastic support for the Third Reich and his profound hatred of Jews. That being said, key Nazi propagandists, including Julius Streicher, publisher of the antisemitic Der Stürmer and Hans Fritzsche, a radio broadcaster and senior official in the Ministry of Public Enlightenment and Propaganda, were tried at Nuremberg.

In Searching for Lord Haw Haw, Holmes emphasises the central role of propaganda in Nazi Germany, and reiterates that “words matter”. He points to the fate of Streicher, who was convicted at Nuremberg and executed, although a closer comparison might be made with Hans Fritzsche, who was acquitted. Fritzsche had been the head of the radio department of the Reich Ministry of Propaganda, but was seen by the Nuremberg tribunal as “merely a conduit to the press” for certain policies. He never “achieved sufficient stature to attend the planning conferences that led to aggressive war”.

The majority of the Nuremberg judges were not persuaded of Fritzsche’s guilt in inciting war crimes and crimes against humanity. He had made antisemitic statements and “spread false news”, but he did not call for extermination of the Jews and was not clearly aware that certain information he broadcast was untrue. The tribunal concluded that in the main, he had sought to generate popular public support for Hitler and the war effort, rather than contribute to specific crimes. Streicher, while not part of Hitler’s inner circle and thus not convicted of crimes against peace, was found guilty of crimes against humanity for having incited murder and the extermination of Jews through his words and deeds as “Jew Baiter Number one”.

The Nuremberg tribunal was not unanimous concerning the acquittal of Fritzsche. The Soviet judge, Iona Nikitichenko, entered a dissenting opinion and disagreed with all of the tribunal’s acquittals. He did not share the majority’s verdict casting Fritzsche as a “secondary figure”, pointing to the significant role of propaganda, and “radio propaganda in particular” in the waging of aggressive war. Such propaganda trained the German population “to accept obediently the criminal enterprises of German fascism”. Nikitichenko considered his responsibility “fully proven” and his acquittal “unfounded”.

What might Joyce’s fate have been if tried at Nuremberg? He was an avowed antisemite and engaged in extensive propaganda on behalf of Nazi Germany, but he was not involved at any level in the planning, preparation or perpetration of specific crimes. Holmes recounts that while the Joyces may have been given false papers, they “did not feature among that elite group for whom devious rat lines were constructed”. Joyce was closer in stature to Fritzsche than to Streicher, but even then he was not as high-ranking. Moreover, he spoke to a different audience, the British public. Streicher had directly incited and propagandised perpetrators, accomplices and bystanders of the Holocaust in Germany and occupied territories. Joyce was an antisemite without question – in the 1930s he had called for Jews to be “eliminated, shot in the streets or hanged from lamp-posts” according to Holmes – but he seems not to have been sufficiently influential in the crimes of Nazi Germany to be one of Nuremberg’s “major war criminals”.

Had Joyce been sent back to Germany by the United Kingdom, criminal prosecution would have still been a possibility, but not for treason. Under Control Council Law No 10, the occupying powers in Germany held hundreds of trials of Germans for war crimes, crimes against humanity or crimes against peace. The law’s scope included perpetrators, accessories, planners and members of organisations declared criminal by the Nuremberg tribunal, such as the Gestapo and the leadership of the Nazi Party. There was also an emphasis on those holding high political, civil or military positions, as well as the leaders of industry and finance.

Despite his significant status from the point of view of the United Kingdom, Joyce was not a ready fit with these categories in the German context. He would more likely have been sanctioned through the Allies’ denazification processes. Following his acquittal at Nuremberg, Fritzsche was given a nine-year prison sentence by a German denazification tribunal. Joyce would probably have met the same fate, and perhaps even have evaded capital punishment. In Norway, as the verdict in the trial of Vidkun Quisling was awaited, his prison guards vowed to kill him if he was not sentenced to death, which he ultimately was.

In the end, the trial of William Joyce played out as a domestic affair in the United Kingdom. The trial had garnered much attention internationally, including from states engaged in the revision and elaboration of a new international legal order. Joyce’s trial was referred to on a number of occasions during the drafting of the 1949 Geneva conventions, the set of treaties developed after the Second World War with a view to regulating conduct in wartime. Several states were vocal in their insistence that the protections of the Geneva conventions would not apply to collaborators such as Joyce. A state’s own citizens should not be entitled to prisoner of war status or civilian protected person status. Delegates made sure that collaborators, such as “the famous traitor Lord Haw-Haw”, would not evade justice, even though “he committed his treason in Germany”.

Lauterpacht later wrote about Joyce’s prosecution in The Cambridge Law Journal, but without any mention of his advice to Shawcross or the intriguing but ultimately unheeded Nuremberg proposal. Given his great familiarity with the law and jurisdiction of the Nuremberg tribunal, it remains curious as to why he would have recommended Joyce’s trial there. Perhaps he was concerned that a notorious trafficker in antisemitism, who he would have probably heard on the radio, must be held to account for his actions. He also demonstrated some discomfort with the crime of treason itself, describing it “as an instrument of despotism and oppression”, and perhaps had a preference for a trial for crimes against people, as in the Nuremberg crimes, rather than for a political offence such as treason which is perpetrated against a state.

Words do matter, as Holmes rightly noted in the case of Joyce, yet international law has struggled to address hate speech through the criminal process, unless such words can be treated as incitement to specific violence, as was the case with the genocide in Rwanda. At the national level, criminal laws have generally been deployed against those who physically perpetrate crimes rather than those who might encourage their commission. Incitement to hatred laws can address racist speech without needing to make a link with specific violent crimes, although many countries have been reluctant to do this. Ireland, for example, was called on by the UN Committee on the Elimination of Racial Discrimination in December 2019 to strengthen existing legislation “with a view to effectively combating racist hate speech in all forms of expression and means of communication”. Such laws are frequently decried as an attack on free speech, at times by those cut from the same cloth as William Joyce.

1/6/2020

Shane Darcy is a professor at the Irish Centre for Human Rights in the School of Law at the National University of Ireland Galway. He is the author of To Serve the Enemy: Informers, Collaborators and the Laws of Armed Conflict (Oxford University Press 2019).

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