Punctuation Can Be a Matter of Life and Death

“Woman without her man is nothing.”  Right?

Actually, that is right. But ya gotta adjust the punctuation before you submit the answer.

“Woman: without her, man is nothing.”

You’ve probably seen that one if you read blogs and posts from grammar curmudgeons like me.  I know we can be a pain in the neck. But you know we’re correct. Faulty punctuation can make what you write mean the opposite of what you intend.

Here’s another one:

“Let’s eat Grandma.”

Er, wait a minute.  It’s “Let’s eat, Grandma.”

Okay, so much for the levity. Now for a deadly serious story about how a wrongly-edited piece of punctuation – a comma inserted for a semicolon – nearly freed some of history’s most despicable and scaffold-deserving criminals from a full accounting for their crimes.

As described in East West Street (Vintage Books, 2017) by Philippe Sands, the last-minute edit was made to Article 6 (c) of the charter for the trial of the Nazi leaders at Nuremberg.  All of the quoted passages that follow are taken from that book. That trial eventually ended up breaking new ground and establishing in international law the offense of crimes against humanity.

Philippe Sands

But the four victorious powers who were conducting the trial – the United States, Britain, France, and Russia – were not in agreement on that point. The Russians, in particular, objected to the notion of crimes against humanity, because allowing for it that meant that if a state trampled the rights of individual people as the Nazis had done, then it was breaking a law not of individual nations but of all mankind. Those who transgressed it would have no immunity, even if they were leaders. Individuals could be held liable for such crimes and could not hide behind the veil of a state government.

When Supreme Court Justice Robert Jackson, the United States’ chief prosecutor, reviewed the charter of the trial court, his intent to define and prosecute crimes against humanity was unmistakable. He wrote, “We should insert words to make clear that we are addressing persecution, etc., of Jews and others in Germany, as well as outside of it, before as well as after commencement of the war.”

As the book’s author Sands continues, “Such language would extend the protections of international law. It would bring into the trial Germany’s actions against its own nationals – Jews and others – before the war began.”  That meant the killings, incarcerations, expulsions, pogroms like Kristallnacht, and so on.

Despite the Russians’ objections, the final text of the Charter was adopted, signed and made public on August 8. In Article 6 (c), the judges were given the power to punish individuals for crimes against humanity. Here is the relevant, and infamous, passage in the first published charter:

Justice Robert H. Jackson

“murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian populations, before or during the war; or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic laws of the country were perpetrated.”

Seems pretty clear and definitive, right? But wait – and look closely at the semicolon in the second line. That disappeared, and was replaced by a comma, because the semicolon caused a discrepancy between the English text and the French and Russian texts of the charter.

As the book points out,

“The semicolon seemed to allow a crime against humanity that occurred before 1939, when the war began to come within the jurisdiction of the tribunal; the replacement comma, however, seems to have the effect of taking the events that occurred before the war began outside the jurisdiction of the tribunal. There would be no punishment for those actions, if crimes against humanity had to be connected to war. Whether this was intended, or would have this effect, would be for the judges to decide.”

Decide they did, and they decided wrongly, in clear contravention to what Justice Jackson intended.

Hersch Lauterpacht

On the second day of announcing the verdicts, Russian judge Iona Nikitchenko stated, “Only acts that constitute crimes against humanity were those committed after the war started. No war, no crime against humanity. In this way, the tribunal excluded from its judgment everything that happened before September 1939, no matter how terrible the acts.”

Ah, yes, their hands were tied by that comma. That’s what they said.

Nikitchenko went on to (seemingly) acknowledge the unfairness of it, but he absolves himself and the other judges of any responsibility to rectify that unfairness.

“political opponents were murdered in Germany before the war. Many individuals were kept in concentration camps, in circumstances of horror and cruelty, and a great number were killed. A policy of terror was carried out on a vast scale, organized and systematic, and the persecution and repression and murder of civilians in Germany before the war of 1939 were ruthless. The actions against the Jews before the war were established ‘beyond all doubt.’  Yet ‘revolting and horrible’ as these acts were, the comma inserted into the text of the charter excluded them from the tribunal’s jurisdiction. We were powerless to do anything else, the judges said.”

Now do you believe me about punctuation?

Rafael Lemkin

The book, East West Street, is about much more than punctuation. It is a dramatic account of the lives and intellectual development of two Jewish men, Hersch Lauterpacht and Rafael Lemkin. Both studied law at the University of Lwów (or Lviv or Lemberg, depending on which conquering power was in charge of that city in Ukraine). Both were involved in preparation for the Nuremberg trial. Both did seminal work on the concepts of “genocide” and “crimes against humanity.”

The book also describes the life, times, and crimes of Hans Frank, who ruled the General Government, or the conquered land of Poland, for Hitler’s Third Reich. He was a pre-war friend of one of the trial judges, the Frenchman Henri Donnedieu de Vabres. The French guy tried to get Frank a life-in-prison sentence rather than a hanging.  He didn’t succeed.

I recommend this book highly, whether your area of interest is law, World War II, or the Holocaust.

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