Jon Silverman asks whether Britain sporadic and tardy efforts to pursue Nazi war criminals reflects a lack of skill or a lack of will.
IN THE LAST DECADE of the twentieth century, the names of some 400 suspects were investigated by British police officers under the 1991 War Crimes Act. Detectives travelled to Eastern Europe, Israel, Canada, the United States, South Africa and New Zealand in search of information and witnesses. The result of this unprecedented operation was that two people were prosecuted; one was convicted. If any other police inquiry costing at least 11 million [pounds sterling] had had such a meagre return, there would surely have been fulminating editorials in the Daily Telegraph and a barrage of questions in Parliament. But not so in this case. The war crimes process has passed from current affairs to history with barely a murmur of protest, let alone serious analysis. It is high time that was put right.
The first issue which deserves consideration can be headed `delay'. The 1989 inquiry under Sir Thomas Hetherington and William Chalmers, which recommended war crimes legislation, recognised that time would be the chief enemy of a successful prosecution. With elderly suspects and elderly witnesses, scattered in many countries, it would be imperative to stage trials as swiftly as possible. The inquiry identified a major obstacle in the committal stage of a prosecution which normally determines whether a case should proceed to the crown court. In other words, it means that evidence has to be given twice. `This would be particularly burdensome for frail, elderly witnesses from abroad who would, in any event, be unfamiliar with the procedures of the courts.' The Hetherington-Chalmers solution was to miss out the committal hearing in war crimes cases.
But this eminently sensible proposal was never implemented. Although it is there in the wording of the 1991 Act, another piece of legislation (the 1933 Administration of Justice Act) needed to be amended before it could take effect. And due to what was described as a `Home Office oversight', the amendment was never brought forward.
Now, this may all sound rather technical. But consider this. The first person to be prosecuted for war crimes was Szymon Serafinowicz. He was charged in July 1995, when he was already eighty-five. The committal hearing did not take place until 1996 and lasted nearly three months. There was then further delay while an `abuse of process' challenge by the defence was considered at a separate court. So it was not until January 1997 that his trial was scheduled at the Old Bailey.
By this time, he was in failing health and the jury decided that he was unfit to plead. A prosecution which had cost at least 2 million [pounds sterling] and required nearly twenty witnesses to travel to Britain to give evidence, collapsed. Without the committal hearing which was unnecessary, the trial could have been held much sooner. And given the strength of evidence, there is little doubt that Serafinowicz, a collaborationist police chief responsible for hundreds if not thousands of deaths, would have been convicted.
The Serafinowicz case also illuminates other flaws which cast doubt on the commitment of the police and legal establishment to make the war crimes process a truly effective tool. Scotland Yard's war crimes unit first became aware of the name, Serafinowicz, at the end of 1991. So, why did it take three and a half years to charge him?
The police explanation is that they had the wrong spelling. The name they were given had an `m' -- Serafimowicz -- rather than an `n'. This was enough to throw them completely off the scent. Despite their best (sic) efforts, it took eighteen months to track him down in the UK -- even though he was in the telephone book and had lived in the same house in Banstead in Surrey since 1956. Incidentally, if this is hard to swallow, it happened not once but twice. The second time was the case of Anthony Sawoniuk, the only man to have been convicted under the War Crimes Act. The police were told his name was spelt with a `v' rather than a `w' and this repeatedly hamstrung computer searches. The result was that a man whose name was first given to the UK authorities as a war crimes suspect in 1988 was not arrested and charged for another nine years.
If one delves a little deeper into the Serafinowicz story, it emerges that he was not even a new suspect when he came to the attention of the police in 1991. Research which I have carried out in the United States reveals that the name Serafinowicz was passed to the UK authorities in 1982 when the American OSI (the Nazi-hunting unit within the Department of Justice) was investigating the collaborationist mayor of a `Byelorussian town who had emigrated to the States after the war.
The Americans had been told that Serafinowicz was in Britain and wanted to interview him as a potential witness. Through the State Department, a formal request was made to the Foreign Office to make inquiries. According to the present director of the OSI, Eli Rosenbaum, Whitehall turned a deaf ear. `They simply didn't want to know,' he told me.
The irony is that if the Foreign Office had but known it (or indeed, evinced any interest), there was damning information about Serafinowicz on their very own doorstep -- in the files of M15. I have a copy of a letter dated February 1947 in which an M15 officer called J.L Irvine is informing an official in the Home Office Aliens Department, S.H.E Burley, about allegations against one Lance Sgt. Szymon Serafinowicz, then stationed at Barkford Camp in Sussex.
According to allegations (from a `Polish source'), Serafinowicz `is said to have taken part in arrests, executions and burning of villages and to be guilty of the deaths of numerous persons'. However, Irvine's view that Serafinowicz `should be treated as a war criminal' led only to the most cursory of investigations, in which the suspect was exonerated. The one proviso was that he was to be placed under a gentle surveillance because it was thought that an organisation to which he belonged was pro-Communist. In fact, it was a Byelorussian nationalist group which was virulently anti-Communist -- showing that in the 1940s, as subsequently, the quality of M15 intelligence frequently left a lot to be desired! (Though it is also worth noting that in this correspondence, M15 did at least have the correct spelling of Serafinowicz's name.)
Of course, even if Scotland Yard had been aware of this sooner, it was not proof that Serafinowicz was a war criminal. But there are two other pieces of information that, taken in conjunction with the M15 material, made a powerful primafacie case against him.
In 1967, a Jewish survivor from the town of Mir -- of which Serafinowicz was police chief in 1941 -- was interviewed by the police in Israel. In his evidence, he says he saw Serafinowicz shoot his friend dead. He added that the killer was `said to be living somewhere in England'.
This statement was in the files of the Australian Special Investigation Unit which examined a number of Byelorussian cases in the 1980s. Since Scotland Yard knew they would be trawling over much the same territory, the question has to be asked: why did they not get hold of this highly significant material right at the outset of their inquiries?
And that's not all. In the 1970s, a Wehrmacht officer called Max Eibner was tried in Oldenburg in West Germany for war crimes committed on the Eastern front. The name of Serafinowicz came up a number of times -- and with some prominence -- during the trial. But Scotland Yard had no inkling of this until 1993.
One intriguing postscript to the Serafinowicz saga. I have copies of KGB files which reveal that the Soviets knew as early as 1951 that Serafinowicz was living in England. The information came from a fellow police collaborator who had been interrogated by the KGB in Latvia. At that time, Serafinowicz was living in London but by the early 1960s, Soviet intelligence knew that he had moved to Banstead. They even had his exact address.
So, when Scotland Yard put out a bullish statement, as they did in 1997, extolling their unique and exhaustive investigation into Szymon Serafinowicz, perhaps it should not be taken entirely at face value.
The war crimes investigations were a joint operation, the police working in close co-operation with the Crown Prosecution Service. And the lawyers -- or at least, their superiors -- adopted the same dilatory approach. To some degree, this was understandable. The parliamentary debates on the War Crimes Bill in 1990 and 1991 were among the most ferocious in postwar history, with the opposition spearheaded by some of the country's most distinguished politician lawyers -- such as Lord Shawcross, Britain's chief prosecutor at Nuremberg, and Lord Hailsham, the former Lord Chancellor. With the warning that this was retrospective legislation -- and, as such, thoroughly bad law -- ringing in their ears, the prosecuting agencies in England and Scotland knew they had to tread carefully.
They were also acutely conscious that other jurisdictions, such as Australia and Canada, which had similarly changed their law to allow war crimes prosecutions, had not achieved a single conviction between them. So it is no exaggeration to say that they were haunted by the fear that if their first prosecution turned out to be a failure, they would almost certainly be denied a second chance. A measure of caution, therefore, seemed only prudent.
But understandable caution led the CPS to adopt a policy which, in my view, was highly controversial and which would have generated a great deal of discussion and argument had it been disclosed earlier.
On March 29th, 1999 -- three days before the jury returned with its verdict in the trial of Anthony Sawoniuk -- a background briefing note was issued to the media. For the first time, it revealed the prosecuting criteria to which the police were working in their war crimes investigations. There were four. Three were quite predictable and fell fairly and squarely within the ambit of the War Crimes Act. But the fourth leaps from the page and provokes a battery of questions.
The note says that before a suspect `could be considered a serious candidate for prosecution', there needed to be `proof that the defendant was in a position of command; responsibility is also an important factor in deciding on the defendant's culpability.'
Both parts of that criterion are highly contentious. The 1991 War Crimes Act says nothing at all about command or responsibility. It sets out the historical period it's dealing with -- 1939-45. It specifies the location -- Germany or those territories under German occupation. It deals with the nature of the crimes -- murder or manslaughter or acts `in violation of the laws and customs of war' (which is taken from the Geneva Convention). But it makes no stipulation about the status of potential suspects.
It was only when I saw this document that it began to make sense why a number of potentially strong cases were never recommended for prosecution. One was a man called Nikolai Popkho, another collaborationist policeman from Mir who was implicated in the massacre of some three thousand Jews.
His name -- unlike that of his boss, Serafinowicz -- was on a list of war crimes suspects handed to the Foreign Office in 1988 by the Soviet embassy in London. There was credible evidence against him -- both documentary and eye witness -- and indeed, a former senior official in the CPS war crimes section told me that he had been in favour of prosecuting.
But the point about Pophko was that he was a mere foot-soldier, so to speak. He held no position of command. Though the CPS has never confirmed it officially, it seems clear from the briefing note that it was determined, presumably on advice from Treasury counsel, that the first defendant should be someone who did have a command and responsibility role. That someone, of course, was Syzmon Serafinowicz, whose prosecution turned out so disastrously.
Another case, which further bears out the point, is that of Andre Bakunowicz, who died in Sheffield in 1996. He was listed number three on the 1988 Soviet embassy list. With Pophko, Serafinowicz and four other Mir policemen, he was one of the principal Suspects investigated by Scotland Yard. A number of eye witnesses spoke of his cruelty and personal involvement in killings. The historian to the war crimes unit, Martin Dean, described him as `an excellent case'. He was a decade younger than Serafinowicz and his health was reasonably good. But, like Pophko, he held only the lowest rank -- he was an interpreter for the police unit -- and so presumably failed the test of command and responsibility. He, too, escaped prosecution.
The CPS would be entitled to argue that it had to apply rigorous criteria given the difficulty of bringing war crimes cases to court. Issues such as clear identification and more than one credible eye witness would be the bare minimum required. But command and responsibility? Surely, the Nuremberg trials established for all time the principle that obeying the orders of a superior was not an acceptable defence.
Moreover, if Parliament, in passing the 1991 Act, did not see fit to write in a requirement that command be a criterion for prosecution, why should an unelected body like the CPS decide that it should? These are all issues which deserved to be ventilated and challenged and would have been had the CPS not imposed a stifling blanket of secrecy over the entire war crimes process.
It may be appropriate to end where that process began - with the Hetherington-Chalmers report. Perhaps the key line in that document is this: `The crimes committed are so monstrous that they cannot be condoned: their prosecution could act as a deterrent to others in future wars. To take no action would taint the UK with the slur of being a haven for war criminals.'
Britain can't be accused of taking no action. But was it effective? It's worth recalling that in 259 of the 400 cases investigated, there was either insufficient evidence to prosecute or the subject's health precluded a prosecution. Even if only 20 per cent were guilty (a conservative estimate) that's more than fifty people who lived out their lives in tranquility, having taken part in the greatest act of mass murder of the twentieth century. Was Britain a haven for war criminals? The answer is self-evident.
Jon Silverman has been BBC Home Affairs Correspondent since 1989. In 1996, he won the Sony Journalist of the Year award for his war crimes coverage.…