n celebration of finishing the background sections of my Nuremberg work, here is an excerpt on how we got to a trial in the first place.
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 orchestrating every 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 committed — 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 highly 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 later joined in the Charter making a true international 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 adversarial court system in the US. In the Continental system, the evidence and written testimony is presented to a magistrate who determines if this is sufficient 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]