A further perspective on the arguments over the Death Penalty...

On the 5th of March, 1940, Joseph Stalin and members of the Soviet Politburo, including Beria, Molotov, and Kaganovich signed an order to execute 25,700 "nationalists and counter revolutionaries". These men had all been held in Soviet camps and prisons. Over a period of six weeks between April the 3rd and May the 19th, 1940, Stalin's orders were carried out and the bodies of the dead were summarily dumped into large and muddy pits. The subsequent mass graves were deep in the forest of Katyn near Smolensk in Russia.

Katyn Massacre Memorial: Photo by Smolensk Memoryal (Alyeksyey Melkin) released into the public doman via Wikiwedia Commons commons.wikimedia.org/wiki/Image:KatynPL-mogily.jpg

Loved ones waited to hear from imprisoned husbands, sons and fathers, but no word came from out of the forest. It was as if the earth had sucked into her bowels thousands of lives, and now she held the exact resting place of these individuals in silence.

A number of years later, during the German occupation of Katyn in World War II, by sheer chance a little boy would chase a soccer ball into a clearing in the forest, his weight piercing the thawing ground, his tiny foot falling into a hole revealing the horrifying remains of decaying soldiers. The dead were the elite of the Polish military, (ironically the allies of the Soviets against the NAZI regime), the men the Politiburo had ordered to be butchered, and among them were: 300 physicians, 100 writers, 20 professors, and hundreds of lawyers, engineers and teachers.

A 1956 memo from Alexander Shelepin, KGB chief to Nikita Khruschev, First Secretary, noted with eerie accuracy the number of these 'allies' who had been executed with a single bullet hole to the back of the head. The Red Cross would be invited by the German High Command to inspect the Katyn Forest, the Germans would accuse the Soviets, the Soviets in turn would accuse the Germans. However, in 1989 the crumbling Soviet Government in the spirit of''perestroika' would admit full responsibility for the Katyn Massacre, the plan having been to raze the Polish nation to its knees by eradicating the intelligentsia, and by so doing export the Russian Revolution further West.

Hindsight — a cruel teacher...

View of the Nuremberg War Trial from the Visitors' Gallery Photo src: www.law.umkc.edu

Hindsight is very often a cruel teacher. At the Trial of the Major War Criminals Before the International Military Tribunal (IMT) in Nürnberg (20th of November, 1945 to 1st of October, 1946), Major-General Iona Timofeevich Nikitchenko (1895-1967), helped preside. Nikitchenko's credentials extended back to the infamous Stalin purges of the 1930's when he had sentenced to death Stalin's enemies. Now, as part of the victorious Allies, Nikitchenko declared, before the Trial began: "If ... the judge is supposed to be impartial, it would only lead to unnecessary delays." (Harris, 1954, pp. 16 — 17) Throughout the course of the Trial, Nikitchenko arbitrarily and assuredly sought the death penalty for all those who stood accused.

What makes Nikitchenko's role at Nürnberg more sinister is that in November 1945, the IMT condemned to death and hanged seven officers of the German Army: K.H. Strueffling, H. Remlinger, E. Böhom, E. Sommerfeld, H. Jannike, E. Skotki and E. Geherer for having perpetrated the Katyn Massacre. A further three German soldiers received 20 years in a Soviet Gulag and were never to be seen again. In light of the 1989 Soviet admission we know that none of these men were guilty of the Katyn Massacre, but Nikitchenko and the chief Soviet prosecutor, Roman A. Rudenko, had the power and the wit to bluff an international court and by 'legal murder' sought to paint over the remaining vestiges of Soviet complicity in the crime against Polish humanity.

The Catholic Church's opposition to capital punishment...

One fundamental precept of the Catholic Church's social teachings is its opposition to capital punishment. The Catechism of the Catholic Church states categorically that "given the means at the State's disposal to effectively repress crime by rendering inoffensive the one who has committed it, without depriving him definitively of the possibility of redeeming himself, cases of absolute necessity for suppression of the offender 'today ... are very rare, if not practically non-existent." (CCC, 1995, par. 2267). Every society has a responsibility to protect its citizens from harm, and every individual has a right to self-defence, but once an offender is incarcerated and the danger they pose to society is nullified, their life is nonetheless sacrosanct as any other non-convicted member of society.

A Report for the United States House Judiciary Subcommittee on Civil & Constititional Rights, Oct. 1993, stated the disturbing fact that in a twenty year period from 1973 to 1993, 123 people were exonerated for crimes which had seen them been placed on death row. These individuals had been found by a court of law as guilty, and sentenced by a judge to die for a crime they did not commit, and all this in a country indicative of one of the world's most highly educated societies. For want of adequate legal representation these 'condemned' men and women would have lost their lives, for crimes they did not commit; and no long litany of guilty men punished can ever equate with the one innocent individual unfairly judged and subsequently unjustly punished.

Omniscience, onmipresence and omnipotence...

The inherent problem of capital punishment is that being a matter of life and death it demands that there be no error of judgement, but requires of each judge the omniscience, onmipresence and omnipotence of God. Only omniscience can determine the full volition of an individual's crime; only omnipresence can serve as the perfect witness to any action; only omnipotence can effectively execute a punishment that fits the crime. No man, but Jesus, has ever been so perfect so as to qualify to be a judge in a capital case, but even He specifically taught that "The Son of man came not to destroy souls but to save them" (Luke 9: 56, The New Jerusalem Bible). Surely we must punish the criminal according to the extent of their crime — but we do this knowing that we as human beings are also fallible creatures capable of making errors of judgement. We must always leave an option open, and not take from any person their hope of redemption, nor their chance of a just exoneration, by taking their life.

General Alfred Jodl Photo src: Wikipedia

General Alfred Jodl (1890-1946) had proclaimed his innocence at the Nürnberg Trials stating that he was not guilty, "before God, before history and my people". During Jodl's trial, the primary French judge, Professor Henri Donnedieu de Vabres (1880-1952), a Professor from the University of Paris, and a pre-World War II architect of the notion of an International Criminal Court, argued that to convict Jodl would be a great miscarriage of justice. According to Donnedieu, Jodl had no allegiance to Nazism, and the charge of a "conspiracy to wage war", held against the defendant was unjust. Yet General Jodl, sitting in the same pen as some of the most infamous names, most recognizable faces and despicable personalities of the 20th Century, despite these personal protestations of innocence and those of Donnedieu, was found guilty and sentenced to death by hanging. The Soviet judge Nikitchenko, refused to allow the old soldier the military dignity of a firing squad.

Why do judges sometimes get it wrong?

On October the 16th, 1946, Jodl was led out of his cell to the Gymnasium building in Nürnberg. The author Sereny would write of the appearance of Jodl's prison cell after his execution: "Only General Jodl's cell was spotless, his tin bowl and spoon washed, the floor swept, his blanket militarily folded". (Sereny, 1995, p. 4) On February 28th 1953, Alfred Jodl was exonerated posthumously for the crimes which had seen him lose his life; a German De-Nazification court finally accepted the logic of Donnedieu's argumentation as it had been originally presented at Nürnberg some seven years before. What had prevented the judges from deciding justly in Jodl's case? Perhaps it was their collective abject horror at the crimes perpetrated by so many of the defendants, perhaps it was the pressure of a world "seeking justice", or perhaps still, personal bias or ambivalence toward a condemned man in enemy uniform, speaking the tongue of the enemy. As for Judge Iona Nikitchenko — he continued dispensing 'justice' in the Soviet Union and lived a long life.

In cases of war and in cases of terror, many today seek to promote capital punishment. Yet we must always remember Robert McNamara's statement in the Academy Award winning documentary of 2003, The Fog of War, that had the Japanese won World War II, they would have had as good a reason to execute him and members of his Department for planning the carpet-bombing of Tokyo, as many of the men who were executed at Nürnberg, for killing innocent civilians. Then again, if Nürnberg had been a war trial for crimes against humanity, and justice had been blind, where was the case of Katyn, or why wasn't the same justice dispensed on Harry S. Truman (1884-1972) for Hiroshima and Nagasaki, or Bomber Harris (1892-1984) for Dresden? We must always be cautious not to confuse justice for retribution; and that, for the human condition, is a very difficult task.

An American example...

In war our enemy is our mortal enemy — he seeks to kill us; but after he is incarcerated, and can do us no more harm, let us turn, as Abraham Lincoln exhorted, to the better angels of our nature, and not go down the road to blood-lust and revenge. For this reason alone, General Robert E. Lee (1807-1870), was spared his life.

General Robert E. Lee Photo src: www.nndb.com

General Lee, a recognized paragon of virtue by both warring parties of the Civil War, and one of the greatest generals in world military history, played alongside Generals Sherman (1820-1891), Grant (1822-1885) and Jackson (1824-1863) an integral part in that tragic war, which up until the jungle theatres of Vietnam had seen more American lives lost than the Revoloutionary War, World War One, World War Two and Korea combined. Lee's place in history as a brilliant general was at the close of the Civil War to see him the centre of a debate as to whether he should or should not be tried for treason — the punishment for which was death.

No surer source of the reality of this situation is provided for posterity then from the pen of General Lee's son. Captain Robert E Lee Jr. recalled those days that followed his father's surrender at Appomatox: "He had another visit at this time which affected him deeply. Two Confederate soldiers in very dilapidated clothing, worn and emaciated in body, came to see him. They said they had been selected from about sixy other fellows, too ragged to come themselves, to offer him a home in the mountains of Virginia. The home was a good house and farm, and near by was a defile, in some rugged hills from which they could defy the entire Federal Army. They made this offer of a home and their protection because there was a report that he was to be indicted for treason. The General had to decline to go with them, but the tears came into his eyes at this hearty exhibition of loyalty" (Lee, 1904, p. 160). Had Lincoln not calmed the voices of the North for revenge — vanquished soldiers such as Lee, may indeed have found themselves the centre of an acrimonious series of show trials, in which any hope of a reconciliation between North and South may have been impossible to envisage; the ramifications of which may have even been felt to this day.

In a world inflicted by the scourge of war and violent crime, the Catholic Church takes its stand on capital punishment based on the premise that God alone can dispense the ultimate punishment — for only God has ultimate knowledge and ultimate authority. We humans kill too readily, because of personal hurts and hatreds, we even kill because of our 'good intentions' — and none of us can ever declare a total lack of personal biases, or a total clarity of mind. Perhaps this is the reason why Christ offered his audience the first stone to cast, and why they, when staring into the face of ultimate justice — recoiled.

©2007 Dr Andrew Thomas Kania

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