at Yale Law School at Yale Law SchoolThe Nuernberg trials, like other war-crimes trials, were based on the proposition that international penal law is judicially enforceable law, and that it therefore may and should be enforced by criminal process. The United States was a leading participant in the planning and execution of the Nuernberg trials, but the basic proposition is not purely or even primarily American, but rather of very cosmopolitan origin. Its roots are ancient, and Nuernberg is by no means the first instance of its application. To trace the historical antecedents of the many war crimes trials held since the conclusion of World War II would be, therefore, a formidable task for any scholar.
Even the conferences, reports, and other events during and after World War II which directly led to the Nuernberg trials furnish material for a historical essay far beyond the scope of this report. The "St. James Declaration" of January 1942, the "Moscow Declaration" of November 1943, the establishment and activities of the United Nations War Crimes Commission, and other important developments of the war and prewar years are dealt with extensively in the very comprehensive History of the United Nations War Crimes Commission. (1) Interesting information on the origins of United States policy in this field is contained in the Honorable Henry L. Stimson's account of his service as Secretary of War. (2) How this policy was put into execution, culminating in the London Agreement and Charter of 8 August 1945, is set forth in Mr. Justice Robert H. Jackson's report of his activities as Representative of the United States in the field of war crimes. (3) I shall not here attempt to retrace all these steps.
While the events described in these publications were taking place, the Joint Chiefs of Staff were also concerning themselves with the problem of war criminals. As early as August 1944 they considered a proposed draft of a directive (4) to theater commanders regarding the handling of war-crimes matters, based on a definition of "war crimes" approved by the Judge Advocate General, United States Army, and so phrased as to distinguish "noncriminal" offenses against the laws of war (such as espionage) from "criminal" offenses such as atrocities against civilians:
The term "war crimes" covers those violations of the laws and customs of war which constitute offenses against persons or property, committed in connection with military operations or occupation, which outrage common justice or involve moral turpitude.
The draft directive went on to point out that "guilt may be either as principal or accessory" and that "the taking of a consenting part in the commission of a war crime is also punishable; as for example, omission of a superior officer to prevent war crimes when he knows of, or is on notice as to, their commission or contemplated commission and is in a position to prevent them." It further stated that war crimes "do not include acts committed by enemy authorities against their own nationals," or offenses committed prior to the outbreak of war. The apprehension of suspected war criminals and the collection of evidence were declared to be "military interests of prime importance."
On 1 October 1944 the Joint Chiefs of Staff approved this directive (5) and presented it for consideration by the Combined Chiefs of Staff. (6). At about the same time, pursuant to the instructions of the Secretary of War, (7) a War Crimes Office was established in the Office of the Judge Advocate General of the Army which, by interdepartmental agreement, was to act as the central agency for the State, War, and Navy Departments in handling war crimes. (8)
While the Combined Chiefs of Staff were considering the draft directive, the focus of American policy-making shifted to other levels. As is shown in Mr. Stimson's book, the scope of his war crimes "thinking" was enormously broadened so as to comprehend "the whole scheme of totalitarian war * * * virtually upon the theory of a conspiracy," and the conspiracy "approach" was approved by the President at a conference with Mr. Stimson on 21 November 1944. In January 1945 the President appointed Judge Samuel Rosenman as his personal representative on the war-crimes problem, and by 18 January 1945, at a meeting between Mr. Stimson, Judge Rosenman, the Attorney General (Mr. Francis Biddle), and others, a plan for a large international trial, involving the concept of the criminality of aggressive war, had emerged. (9) This broad program was then embodied (22 January 1945) in a memorandum to the President from the Secretaries of State and War and the Attorney General. (10)
These high-level conferences and plans put a stop, for the time being, to further consideration of the war crimes problem by the Joint or Combined Chiefs of Staff. In April 1945 the Joint Chiefs of Staff noted that the above-mentioned memorandum of 22 January to the President "differed in several important respects from the basic concept upon which the directive proposed by the United States Chiefs of Staff * * was predicated." Accordingly, they advised the Combined Chiefs of Staff that the draft directive which had been under consideration since the previous October (11) could no longer be approved by the United States Chiefs of Staff. (12)
So the matter stood at the time (2 May 1945) of Mr. Justice Robert H. Jackson's appointment as Representative of the United States and Chief of Counsel for the prosecution of war criminals. (13) Thereafter all basic policy problems in the war crimes field were in his hands. When the war in Europe ended a few days later, the Combined Chiefs of Staff authorized the theater commanders in Germany and the Mediterranean to "apprehend and detain" war crimes suspects listed as such by the United Nations War Crimes Commission "without requiring further proof of their having committed war crimes," but the commanders were not as yet authorized to conduct any actual trials. (14)
On 6 June 1945 the general outlines of United States war crimes policy were publicly set forth in an interim report to the President by Mr. Justice Jackson, (15) and thereafter matters once more started to move forward. Mr. Justice Jackson proceeded to Europe and conducted the international negotiations which resulted in the London Agreement and Charter, while a staff was assembled to conduct the large international trial to be held under the authority of the Agreement. On 19 June 1945 the Combined Chiefs of Staff lifted the previous restrictions and authorized (16) the theater commanders in Europe and the Mediterranean to proceed with trials of suspected war criminals other than those "who held high political, civil, or military positions"; such cases should be deferred pending reference to Combined Chiefs of Staff to ascertain whether it is desired to try such persons before an international tribunal." (17) In Germany, the Theater Judge Advocate thereafter proceeded to try numerous cases involving violations of the laws of war against United States nationals (usually members of the armed forces), (18) and atrocities committed in concentration camps liberated by United States forces. After the London Agreement was signed, preparations for the holding of the international trial were intensified, Nuernberg was selected as the site, and at the end of August the list of defendants was made public. Thereafter the indictment was drafted, and by the middle of October it had been filed before the International Military Tribunal, then newly constituted pursuant to the London Agreement.
The clarification of American war crimes policy in Mr. Justice Jackson's interim report also enabled work to be resumed on formulating a basic war crimes policy directive for the Allied occupational administration in Germany. A draft directive, prepared by the Informal Policy Committee on Germany (IPCOG), was approved by the Joint Chiefs of Staff on 15 July 1945. Titled "Directive on the Identification and Apprehension of Persons Suspected of War Crimes or Other Offenses and Trial of Certain Offenders," (19) it was subsequently transmitted to the theater commander (20) (General Eisenhower) as an interim directive, and as a statement of United States policy for negotiation with the other occupying powers, in the hope that it would furnish the basis for a quadripartite formulation of war crimes policy applicable throughout occupied Germany. This directive (attached hereto as Appendix C) was the source of and stimulus for the later enactment of Allied Control Council Law No. 10, and for the ultimate establishment of the Nuernberg Military Tribunals and the Office, Chief of Counsel for War Crimes to carry Law No. 10 into effect in the American zone of occupation.
(1) Compiled by the Commission itself and published for the Commission by His Majesty's Stationery Office in London (1948), with a foreword by Lord Wright of Durley, the Commission's Chairman. Back
(2) On Active Service in Peace and War, by Henry L. Stimson and McGeorge Bundy, Harper and Brothers, New York (1948), pp. 684-91. Back
(3) International Conference on Military Trials, Department of State Publication 3080, US GPO Washington, D. C. (1949). Back
(4) J. C S. 1023 (26 August 1944), Annex A to Appendix B. Back
(5) J. C. S. 1023/3 (25 Setember 1944). Back
(6) C. C. B. 705 (2 October 1944). Back
(7) Contained in a memorandum from Mr. Stimson to the Judge Advocate General dated 25 September 1944. Back
(8) See AG 000.5 (7 Oct. 1944) OB-S-AM of 25 Decmeber 1944. By directive WDCSA 000.6 0 30 November 1944 the Assistant Secretary of War (Mr. McCloy) was designated as the representative of the Secretary in all matters involving war crimes. The Assistant Chief of Staff, G-1 WDGS; was empowered to exercise staff supervision of plans and policies with regard to war crimes, and the Judge Advocate General was directed to refer matters of basic policy" to the Assistant Secretary of War through the A. C. of S., G-1. Back
(9) On Active Service in Peace and War, op. cit supra, pp. 585-587. Back
(10) Printed in International Conference on Military Trials, op. cit. supra, pp. 317. Back
(11) I.e., C.C.S. 705 (J.C.S.1023/3). Back
(12) J. C. S. 1023/6 (13 April 1945, approved 21 April 1945), and C. C. S. 705/3 (21 April 1945). Back
(13) Executive Order 9547 (2 May 1945). Back
(14) On 25 December 1944 by AG 000.5 (7 Oct 1944) OS-AM, the theater commanders had been Instructed, pending further order, that "no war criminals will be tried before military tribunals, except those cases In which the offenses involve the security or the successful carrying out of military operations or occupation." Back
(15) Printed in International Conference on Military Trials, op. cit. supra, pp. 4254. Back
(16) See C. C. S. 705/7 (presented to the Combined Chiefs of Staff 8 June 1945). Back
(17) Also excepted were persons "known also to be wanted by one or more of United Nations In accordance with the Moscow Declaration for trial for crimes committed outside your zone"; these cases were to "be deferred and report made to the CCS." Trials in areas occupied by British forces were to be further postponed "until Royal Warrant establishing special military courts has been promulgated." Back
(18) By order of 24 February 1945 (AG 000.5 Op JA) General Eisenhower had instructed his subordinate commanders that Action in cases involving only nationals of other United Nations will normally be limited to cooperation with the appropriate national agencies investigating such cases." Back
(19) J. C. S. 1023/10 (8 July 1945) Back
(20) The directive was not actually received in the theater "until a considerable period of time had elapsed subsequent to its publication. Report of the Theater Judge Advocate, ETO and USFET, 4 April 1942 to 3 April 1946, p. 40. Back