The idea of war crimes trials was not new. The idea had been suggested for German War Criminals after World War I, but essentially went no where. This time, the Big Three discussed the idea of holding those responsible for so much death and destruction throughout the war.[ Snyder The War p. 512] A world war started yet again by Germany. “The German Question[ Bush p. 2326]” would have to be addressed. Germany could not be allowed to start a third war. The idea of holding the Nazis responsible was officially claimed in the Moscow Declaration of October 30, 1943.
But in what form would the punishment take? The British favored summary executions.[ Oxford Companion p. 824] They stayed strong in this position right up until 1945. The Soviets, those paragons of law and order, believed trials must be held. Which sounds great, until one remembers what a Soviet trial is like. “Unfortunately, they espoused their kind of trials with the State orchesstrating eveyr move and the Court delivering the pre-determined verdict.[ Telford Taylor, p. 59]” Then the executions could happen.
What was the US position? From 1943-1945, they sided with the British. Even with 2/3 of the Allies proposing summary execution, no plan could move forward without unanimous agreement. Unless each were to act in their own areas of control. However, in early 1945, the US came around to trials. The death of Roosevelt changed the US position. President Truman heard about the idea for a trial of all Nazis for a conspiracy to wage aggressive war. He immediately threw his support behind this plan.[ American Road p. 138] President Truman’s support was all that was needed to finally end the push by the British for summary executions.[ American Road p. 140] “The last great Allied encounter with Nazism would occur in a court of law.[ American Road p. 142]” But it would be real trials, not show trials. The accused would have the right to a defense.[ American Road p. 30-31]
It soon proved impossible to actually try all the Nazis accused of war crimes. There were just too many of them. Besides the sheer volume of defendants, there was another difficult to holding trials in the countries or places where the crimes were comitted — most were transnational. They were not confined to discrete geographic areas. A whole new system would be devised. From all the hundred of prisoners, each of the Allies would compile lists of those they most wanted to try.[ American Road p. 6] These lists would then be used to determine the defendants who would represent the Nazi era as a whole “These were higly placed Nazis of Hitler’s inner circle.[ IMT V. 1, Indictment Art I.]” It is these men who would held responsible for all the Nazi atrocities.[ And one Soviet one that the USSR pinned on the Nazis -the Katyn Massacre.] It was envisioned there would be more than one trial, holding numerous representatives both personally and representatives of certain organizations responsible.[ American Road p. 10-11]
The London Agreement (known later as the Charter) was issued by the four Allied powers on August 8, 1945. Most of the European nations that had been invaded by the Nazis, along with countries from South and Central America and India slater joined in the Charter making a true interntional court, not just a court of the victorious powers. This Agreement was the founding document of the International Tribunal. The prosecutors were charged with creating the Indictment that would achieve the stated aim - hauling the entire Nazi era into court. The purpose was not just to try to he Nazis but to provde a full accounting of all the actions taken to carry out the plan to prepare and wage an aggressive war[ Anatomy p. 54]
There were problems to be resolved, of course. The Soviet version of trials has already been mentioned. But how to reconcile the Continental System used by France and Great Britain with the more adverserial court system in the US. In the Continental system, the evidence and written testimony is presented to a magistrate who detemines if this is sufficent for prosecution. The copies of all this evidence and the indictment itself are given to the defendant and the court. The Defendant does not testify under oath and is not required to make a statement at all. In the US system, not all evidence must be turned over, witness testimony is heard for the first time in front of the trial judge. If the Defendant chooses to testify, it must be under oath. Like most things associated with the Nuremberg Tribunal, this conflict was resolved by compromise. One that all the Allies could live with. The Indictment would lay out full details of the charges and documents would be submitted with it.[ Anatromy p. 64] But, the prosecution would not be required to include all the documents, only those sufficient so that the Defendants could be well prepared to address the charges against them.[ Anatomy p. 64]
Charge 2, Crimes Against Peace, raised issues of personal responsibility and consequences of violation. Justice Jackson addressed this issue in a memo to his secretary Elsie Douglas “By creating a court and defining procecures and punishment, they were were merely adding the missing element of enforcment. If no punishment followed violation, what the point of august figures gathering I world caitals and signing all these treaties.[ Persico p. 33]” An excellent observation. But, were the treaties cited valid such that any alleged violation could be enforced?
As for personal responsibility, Justice Jackson would state at the Tribunal itself: “crimes are always committed by persons.[ IMT p. 796]” The state is not some inchoate entity that just happens to do things. Those ‘august figures gathering in the world capitals” are the state. They are the ones deciding what the law is. It is a president, a Prime Minister, a Fuehrer directing the “State’s” actions. Without this direction, the State could do nothing. Therefore, it is individuals who are responsible for violations, not some vague notion of an non-sentient entity called the “State.” “Hence the criminality of agressive war is implement by the Charter with the principle of personal responsibility.[ Jacksson, IMT p. 796]” It is individuals who would appear in court not a “State which cannot[ IMT p. 798, Justice Jackson] be produced for trial, cannot testify and cannot be sentenced.”
Of course, by charging the Defendants with a conspiracy left one glaring problem. Well two. What to do regarding the Anschluss and the takeover of Czechoslovakia.[ Bush p. 2386] Both occurred without firing a shot. Threats yes. Being sold out by other nations, most definitely. But not a war. However, they had most definitely broken treaties with regards to both nations.