ACCOUNTING FOR BRITAIN'S WAR CRIME

Nigel Nicolson was Nicolai Tolstoy's chief

witness in the libel action brought by Lord Aldington. Here he says what the court missed

BEFORE LORD ALDINGTON brought his famous libel action against Count Nicolai Tolstoy in 1989, only one Allied soldier of the second world war had been accused of a war crime, and that was in Sicily in 1943, when an American sergeant was sent to jail for shooting 37 Italian pris- oners of war.

The Aldington case was much more serious. Tolstoy accused him, in a pam- phlet, of bearing a great share of the responsibility for the death or gross ill- treatment of some 70,000 men, women and children to whom we had given refuge in southern Austria in May 1945. It was on his orders, Tolstoy alleged, that we sent them back to their enemies, the Cossacks to the Red Army and the anti-Communist Jugoslays to Tito.

The jury found in Aldington's favour. They awarded him damages of £1.5 mil- lion plus costs. On appeal, Lord Justice Beldam said that the award, the highest in legal history, showed that in the jury's opinion 'Lord Aldington played no part in, and bore no responsibility for, this shame- ful episode of history.' It was not quite so simple as that.

I was Tolstoy's chief witness at the trial. Fifty years ago I was a captain in the British Army, and with others I supervised the Jugoslav 'repatriation', as it was euphemistically called. We were told not to use force, and forbidden to inform them of their true destination. When they asked us where they were going, we replied that we were transferring them to another British camp in Italy, and they mounted the trains without suspicion. As soon as the sliding doors of the cattle- trucks were padlocked, our soldiers with- drew and Tito's partisans emerged from the station building where they had been hiding, and took over command of the train.

The prisoners and refugees could see them through cracks in the boarding, and began hammering on the insides of the wagons, shouting abuse at us for having betrayed them, lied to them, and sentenced at least the men among them to a grotesque death. There is now no doubt about their hideous fate, and to those of us on the spot there was little doubt then. Shortly after the first trainloads had been despatched, we heard the stories of the few survivors who escaped back to Austria, and thousands of manacled skeletons have since been disinterred in Slovenian pits.

In my evidence at the trial, I described this operation as one of the most disgrace- ful that British soldiers have ever been ordered to undertake, and as I said those words I saw Lord Aldington, who was sit- ting just below me, bury his face in his hands, not, I surmised, from remorse, but because he could scarcely believe that such a charge could be brought against the Army by a man who had once served in it as an officer if never as a gentleman. A day or two afterwards, I crossed the corridor from Court 13 to the men's lavatory. There was one person already there: Lord Aiding- ton. I had known him for many years, but never well. I was bound to say something. So I said, 'Well, Toby, I fear that you must be finding all this a great strain.' He replied, 'It has taken me ten hours to get over the accusation that I am a mass-mur- derer.' Whose accusation was that? Not mine. I was beginning to explain, but he was already buttoning himself up, actually and emotionally. What I wanted to say then, I will say now.

I found it curious that his Counsel, Charles Gray QC, never asked me the question: 'Do you agree with Count Tol- stoy that Lord Aldington "issued every order and arranged every detail of the lying and brutality which resulted in these massacres", and that his actions "merit comparison with those of the worst butch- ers of Nazi Germany or Soviet Russia"?' `No,' I would have replied, 'I do not agree. Count Tolstoy wrote those words under great emotional stress, and was indulging in a hyperbole which the facts do not justi- fy.' And then, if allowed to continue by Mr Justice Michael Davies (who was very impatient with long answers), I would have added, 'I do believe that what took place was a war crime, but I do not consider Lord Aldington a war criminal. If he was a criminal, then all of us who helped execute the order were criminals too. He was only partly responsible for what happened. The chain of command was long, extending downwards from the chiefs of staff at Washington. The orders originated much higher up. If special blame is to be attached to him, it is that he carried out those orders with too much alacrity, and if they were in any way ambiguous, he would interpret them to the disadvantage of the prisoners and refugees in our care. But that does not make him a war criminal.'

My horror at these events is not hind- sight. At the time, I added to my daily situ- ation report a sentence that caused me much trouble then, but much relief now. I wrote: 'Our troops have the utmost dis- taste in carrying out their orders.' I was summoned by my general and told to cor- rect this statement in my next report, and to this day I regret having obeyed him. The judge at the trial saw it differently. `Whether you think Captain Nicolson was rather a "wet",' he said to the jury in his summing up, 'is a matter entirely for you.' And, then perhaps thinking that he might have gone rather far, he added, turning to the press bench, 'Any headline like "Judge asks if Captain Nicolson was a wet" would be a malicious misinterpretation of what I have said.'

One cannot suggest to Counsel what questions he should ask, but this is one which I would much have enjoyed answer- ing: 'If you had been Lord Aldington, Chief of Staff of 5 Corps in Austria, what would you have done?' I would have visit- ed the battalions in order to witness for myself what was happening at the stations, where the repatriations continued for ten days at the rate of two trains a day. I would then have gone to my corps commander (General Charles Keightley) and said to him, 'We are betraying people to whom we have given asylum and who trusted us. We are violating the traditions of the British Army, and probably the Geneva Convention as well. We hold these peo- ple's lives in our hands. Let us put it to General McCreery (GOC 8th Army), and if necessary to Field-Marshal Alexander, that if they think it essential to clear the decks for a possible operation to expel Tito's partisans from Carinthia, we can send them and the Cossacks to Italy or Bavaria, or arm the dissident Jugoslays with the surrendered German weapons to fight their old enemy.' There is no record that Aldington did any of these things. The repatriations continued, until nearly 30,000, many of them civilians, had been sent across the frontier.

Then it was the turn of the Cossacks. Although Aldington indicated in his orders that he knew that among the Soviet Russians, whom we were obliged to send to the Red Army under the Yalta agree- ment, there were many non-Soviet 'White' Russians who should have been exempted, he made no arrangements to screen them in order to spare them repatriation to a country which they had never acknowl- edged as their own and where they would certainly be executed or sent to Siberian camps. Why Aldington did not do this is unclear. He may simply have been pressed for time, being about to return to England, or left it to his successors to arrange the detailed interrogations. But to accuse him of a callous desire to `send them all back' is to ignore the absence of any motive that could have induced him to do so.

In my opinion, Tolstoy lost the case because of the few offensive phrases in the pamphlet that caused Lord Aldington to sue him. In what he wrote there, he was wrong to attribute to one man the responsi- bility which was shared among many, including Harold Macmillan who (as he had made clear in his book The Minister and the Massacres) gave 'advice' to 5 Corps from which all the subsequent orders flowed. It began to look as if Tolstoy was focussing the blame on Aldington because he was the only one of the protagonists left alive.

But though he lost the case, he won a moral victory. He had, after all, by his books and the evidence given at the trial, brought to light a dishonourable act which the commanders in Austria had tried to cover up. Aldington has never denied that the fate of the anti-Tito Jugoslays was terri- ble, and he has said publicly that if he had known what it would be, he would have given different advice to his general. This is something that still puzzles me. Why didn't he know? At Brigade level and below we all knew beyond reasonable doubt what their fate would be, because we were in constant touch with them at the camps. I was sending to my division frequent reports that expressed our fears, such as that of 13 May: 'None of them can be repatriated except to almost certain death at the hands of Tito.' It may be that our warnings were blocked by the Divisional Intelligence staff, of whom one was Tony Crosland, who described the operation as `the most nauseating and cold-blooded act of war I have ever taken part in'. I had no right to approach Aldington direct, but even if, as seems probable, he never heard of our misgivings, I think it would have become him in later years to express some sympathy for the victims of his ignorance.

After the trial the Tolstoys were not left destitute or friendless. Though bankrupt, they retain to this day their house near Abingdon, and the family is helped by a fund into which generous subscriptions flooded from all parts of the world. Men of distinction like Alexander Solzhenitsyn, Graham Greene and Ludovic Kennedy openly expressed their support. Tolstoy's Counsel, Richard Rampton QC, and his solicitors, Schilling & Lom, offered him their future services without a fee. Pho- tographs of his attractive family appeared regularly in the magazines, and he lectured on the case in many foreign countries, tak- ing care to avoid any repetition of the libel, as instructed by the judge. His co- defendant, Nigel Watts, an artist from Tunbridge Wells, was not so careful. He was sent to prison for 18 months for breaching the court's injunction by refer- ring to Aldington as 'the most perfidious and treacherous war criminal in Europe' and to the judiciary as corrupt.

But Tolstoy has not been idle. He appealed against the verdict and the size of the damages. His appeal was disallowed because he could not put down sufficient money as 'security for costs', in case he lost again. He issued a writ for perjury against Aldington, based on his claim that new evidence discovered in the Public Record Office indicated that Aldington had misinformed the court about the date of his departure form Austria. The writ was 'struck out' in camera. He has now appealed against that judgment, and a fur- ther appeal on other grounds is pending in the European Court of Human Rights at Strasbourg.

During the past six years I have often implored Tolstoy to abandon this constant litigation. He had amply made his point. The main facts of the repatriations are well known. He discovered them. Paradox- ically, he has done the State some service in revealing that we, too, can commit war crimes. It was an honourable act to risk his fortune and reputation for the sake of a principle, but now, I believe, he should rest content with his achievement, and allow other historians of this episode to pursue it with fresher minds. My respect for Tolstoy's scholarship and integrity, and my affection for him and his family, have grown over the years; but I think that on this subject he has lost, some of his earlier objectivity and calm.

Following the trial of 1989, there should have been a government enquiry. The inci- dent had greatly impugned the Army's rep- utation, and the trial had been concerned with the responsibility of a single officer, not of the whole chain of command. Tom King, then Minister of Defence, turned down the suggestion on the grounds that it should be left to the historians. It might have been better, as The Spectator remarked at the time, if Aldington and Tolstoy had fought a duel.

Failing that, there is one item of pending litigation which might end the dispute with honour to both sides. Lord Aldington has issued a writ against the BBC for their doc- umentary programme about the affair which was broadcast in 1991 under the title 'A British Betrayal'. He objects to the title, and the the fact that the BBC invited Tol- stoy to act as their adviser. He believes that the programme was biased against him. If this charge could be decided by the courts without the two main protagonists coming into direct confrontation with each other, they might at last be freed from the mutual recriminations that have dogged their lives for so long.