As World WAr II drew to a close, a debate began among Allied leaders. They were divided on what to do with the leadership of Nazi Germany once victory was achieved.
Winston Churchill preferred that Allied armies be given lists of the senior leadership of Nazi Germany, and that any such leader, once caught, should immediately be shot. He did not believe in the need for any trials. After all, leaders are answerable to their people, but how can they be answerable to another, conquering, people? History, as the Caesars showed, could drag enemy leaders in chains and then have them killed, but not presume to make conquered leaders subject to an alien law.
One British official said that imprisonment and exile also reduced the risk that the defeated and disgraced would become martyrs. The exile of James II of England, Wilhelm II of Germany, and Charles X of France all ended the viability of their dynasties; the executions of Louis XVI of France and Charles I of England, and the petty humiliations imposed on Napoleon only glorified them in the eyes of posterity.
American officials wondered if lists of individuals was enough. Shouldn’t there be lists of entire classes of people? For example, SS officers or members of the Gestapo, or secret police? Churchill himself remembered the case of the Emperor of Germany in World War I: The Allies wanted to try Kaiser Wilhelm II of Germany but he escaped to neutral Holland in 1918 and lived out the rest of his life there.
Some American officials, such as Treasury Secretary Henry Morgenthau, preferred collective punishment: He proposed turning Germany into a land fit only for basic agriculture; however, while some American officers such as the Supreme Allied Commander, Dwight D. Eisenhower, seemed sympathetic with this view, the Secretary of War Henry Stimson and the head of the US Joint Chiefs of Staff, George C. Marshal, felt that collective punishment was wrong, and that furthermore anyone arrested deserved a fair trial. No summary executions.
Official British policy was stated first: On Oct. 8, 1943 the British Cabinet stated that lesser war criminals would be handed over to be punished by the countries in which they had perpetrated their misdeeds. On Oct. 30 it was adopted by the Allied powers as the Moscow Declaration
This still left the major war criminals, defined by Churchill as those whose crimes had no specific geographical localization. Churchill proposed drawing up a list beginning with Hitler and Mussolini and those he termed “the Japanese warlords” and have the 32-member nations of the Allies declare them outlaws who could be shot within six hours of their capture. In 1944, President Franklin D. Roosevelt agreed to Churchill’s proposal. But this left the third main Allied power, Russia.
The Russians kept their cards close to their chest. Joseph Stalin had proposed, as a joke, that that 50,000 German officers should be shot. But he said this to tease Churchill for his fondness for lists. The Russians themselves had their own concept of justice, which is familiar to anyone with any knowledge of Communist behavior in the USSR or China: The idea of self-criticism, and self-confessions, even if it required physical torture or the psychological kind, known as a “struggle.”
Stalin was firm. There would be no summary executions, and indeed, if there were no trials, then he would only approve going as far as life imprisonment for any captured Nazi leaders. He was for trials, even if they were show trials. US Supreme Court Justice Robert H. Jackson, who swore in President Osmena when he succeeded to the presidency in 1944, and who would be the chief prosecutor of the Nazis, pointed out the flaw with that view. “The world yields no respect to courts that are merely organized to convict,” he once said.
The Nuremberg, Tokyo, and Manila war crimes trials all led to the widespread adoption of the principle that an order, even if legal, should not be followed if it contravenes morality. For example, German and Japanese officers and officials were sentenced to be hanged because their argument that they “were just following orders” was not a valid defense for their crimes. Article 231 of our own penal code sounds as if it could have been written by the Nazis: As long as a superior issues an order “with all the legal formalities,” it must be obeyed by an inferior official. This is the sort of rigid requirement of law that led to martial law with all its trappings of “presidential decrees” and “letters of instruction.”
Frank Murphy, former governor-general and high commissioner in the Philippines, was faced with appeals for two convicted Japanese war criminals. In his famous dissents penned in 1946, Murphy wrote of Japanese General Yamashita, “Indeed, an uncurbed spirit of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander, can do more lasting harm than all of the atrocities giving rise to that spirit. The people’s faith in the fairness and objectiveness of the law can be seriously undercut by that spirit. The fires of nationalism can be further kindled. And the hearts of all mankind can be embittered and filled with hatred, leaving forlorn and impoverished the noble ideal of malice toward none and charity to all.”
While he noted, in the case of General Homma: “Either we conduct such a trial as this in the noble spirit and atmosphere of our Constitution, or we abandon all pretense to justice ... descend to the level of revengeful blood purges.”
Hermann Goering, the most unrepentant and combative of the accused during the Nuremberg trial, snapped that had the Germans won the war, they’d be doing the exact same thing the Americans, British, French and Russians were doing — mounting, in Goering’s view, nothing better than a Soviet-type show trial.
Solemn protestations to the contrary were made by the jurists; a new, higher form of international law was being born, they said. A system of international ethics and morality to last the ages.
As it would turn out, it did not last much longer than sixty years, when the United States refused to ratify the Rome Convention.
