by Ralf P. Loserth
The year was 1943; the war was still two years from being over and the Allied Powers were anticipating a victory over the Axis Powers who had terrorized Europe for over a decade. There were hundreds if not thousands of perpetrators, millions dead, countless crimes and multiple jurisdictions. The Allies had a gargantuan task ahead of them: Punish the war criminals for the heinous crimes against humanity. The Allies had much to contend with, a defense that would include jurisdictional issues, ex post facto complaints, allied infighting and the need to set International Law for the world to come.
By 1942, mass murder committed by the Germans at numerous concentration camps and roving death squads was in full swing and the pace was intensifying1. The reports coming from Eastern Europe were so shocking that the world “failed to grasp the enormity of what was happening.”2 By April of 1942, the World Jewish Congress estimated that more than one million Jews had already been murdered.3 As early as 1943, the Soviets, in the “Moscow Declaration of 1943” stated that “responsible German Officers will be returned to the scenes of their crimes for trial.”4 The four main Allied Powers, the United States, the United Kingdom, France and the Soviet Union, as well as smaller Allied States had to ensure proper definitions of crimes that were to be prosecuted; they had to obtain proper evidence, create a list of criminals and settle any jurisdictional disputes. Jurisdiction became a very problematic issue, especially with so many different historical points of view. The result was a series of meetings over the course of two years that would hammer out a list of war crimes, a list of perpetrators and final judgment in the mix of differing historical judicial cultures.
In 1943, U.S. President Franklin D. Roosevelt, British Prime Minister Winston Churchill and Premier Josef Stalin signed what is known as the “THE MOSCOW DECLARATION OF 1943”. The main allied powers served notice to Axis war criminals and broke a path to the International Military Tribunal by stating, “Let those who have hitherto not imbrued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done”5 The Soviets showed the world these threats were not hollow as shown in the Kharkov Trials6 where German officials and Russian collaborators were tried on charges of atrocities toward Soviet POWs and civilians. Some were convicted and hanged.7,8
The Allied Powers utilized past treaties and conventions to lay the foundations for the war crime charges and indictments. In some cases the Axis Powers were cosigners of the documents.9
In 1928 The League of Nations signed the Kellog-Briand Pact stating that all signatories “renounce war as an instrument of national policy” and declared “that any signatory power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this Treaty.”10
The Fourth Hague Convention of 1907 also played a major role in the charges leveled at Nuremberg. This convention addressed the criminality of “certain wartime actions against military and naval forces as well as against civilians and civilian property.”11 The eighth paragraph specifically “stands for the proposition that the interests of humanity are the purpose which the laws and customs of war serve and that the ‘laws of humanity’ and ‘dictates of the public conscience’ creating binding rules of conduct” in war.12
In the Moscow Declaration of 1943, Franklin D. Roosevelt and Premier Josef Stalin agreed that at the end of the war, German officers and officials responsible for war crimes would be extradited back to the scenes of the crimes.13
At the close of World War I, the German government agreed to the peace terms of the Treaty of Versailles. The treaty was signed on January 25, 1919.14 In article 228, the German government recognized the right of the Allies to bring those accused of violations of the laws and customs of war before a military tribunal and that the German government hand over the accused to the allied powers. Article 229 states the accused would be tried by tribunals of the nationals the crimes were perpetrated against. Finally, Article 230 required the German government to turn over all documents and information necessary to prosecute the offenders.15
Preceding the London Charter of 1945, there were also other pronouncements by the United Nations warning of the up and coming dealings with axis war criminals. On January 13, 1942 at St. James Palace, London, the British Crown declared that war criminals would not go unpunished. On March 24, 1944 “both Roosevelt and Churchill again proclaimed punishment” of the “miscreants” and their agents. There were numerous other international denouncements of the Germans and Japanese for all acts against humanity.16
On June 20, 1945, the American delegation, led by Supreme Court Justice Robert H. Jackson, arrived in London to join the British, the Russians, and the French to discuss the proposition of the International Military Tribunal. The goal at this conference was to “negotiate an agreement quickly and to prepare the documentary materials necessary for a trial.”17 During the discussions, the Allies feverishly scurried “throughout England and the continent” assembling evidence for the prosecution.18
The Americans and the British had a problem with the Russians and the French concerning accusations that were ex post facto19 or acts committed before they were enumerated. One such law was in count two of the charges, the crimes of waging “Aggressive War”, which argued the Axis aim of world domination and genocide as the purpose for waging war.20 Only after much debate was this placed into the charter. The other major problem area was the concept of conspiracy. The Russians and the French were unable to fully grasp the concept of the American and British dicta. The Russians and the French considered it a “legal anachronism unworthy of modern law” and “too vague” leading to confusion.21 After much negotiation, conspiracy was placed in the charter without much prominence. The group as a whole focused more on “the acts themselves.”22 The delegation argued and negotiated, considering among other things historical treaties and acts. The delegation finally came together with the common goal of punishing the war criminals and establishing international law “in the interests of all the United Nations” and on August 8, 1945 the charter was signed creating the International Military Tribunal.
The accused at the International Military Tribunal were charged with three criminal counts. These counts ranged from conspiracy to crimes against humanity.
(2) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing.23
(3) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.24
(4) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, 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 domestic law of the country where perpetrated.25
The single greatest premise for jurisdiction is the premise the Four Powers were acting “in the interests of all the United Nations.”26 The IMT charter was to be seen “as international codes of criminal law and procedure.”27
The jurisdiction the IMT exercised conflicted with “existing traditional notions of exclusive sovereign authority and jurisdiction based on territory.”28 The issue here was a matter of one tribunal acting on behalf of different territories spanning multiple years. During the period the war crimes were perpetrated, 1939-1945, and preceding the war from 1933-1939, some of the territories changed hands and were occupied by various governments. An example would be the far eastern third of Poland, which in 1939 was occupied by the Poles, the latter half of 1939 by the Russians and in 1941 by the Germans. A good portion of the territories in question were not occupied or controlled by the Four Powers when the crimes were committed.29 The IMT argued to avoid “’sterile legalisms’ and dispense swift and simple justice lest the world allow itself to be lulled into forgetfulness by the passage of time.”30 The Four Powers also declared that by “virtue of its unconditional surrender to the Allies” in 1945, the Four Powers assumed supreme authority with respect to Germany, “including all powers possessed by the German Government” and any authority the government has.31 In a sense the IMT granted itself the jurisdiction over these crimes as victor and “in the interests of the United Nations.”32
What though of the problems arising from the crimes committed preceding the legislation of the London Charter? The argument of ex post facto and nullem crimen sine lege33 (no crime without law) was raised as a defense during the tribunals. Legal scholars and jurists agreed this violated general legal conventions but believed that the “overriding principle”34 of jusice allowed for the prosecution to proceed. “Justice required the punishment of these men as the Nuremberg defendants…(I)n case two postulates of justice are in conflict with each other, the higher one prevails; and to punish those who were morally responsible for the international crime of the Second World War may certainly be considered as more important than to comply with the rather relative rule against ex post facto law, open to so many exceptions.”35 The IMT ruled that the defense argument was merely a principle of justice that was ruled on and not a limitation of sovereignty.
In the end, the IMT moved forward with the prosecutions and tried and convicted a number of Nazi war criminals. The IMT additionally held it was “bound by the Charter and that the jurisdictional basis of the IMT as provided for in the Charter could not be challenged.”36
Gilbert, Martin The Holocaust, Holt, Rinehart and Winston, 1985.
Kochavi, Arieh J. Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment, University of North Carolina Press, Berkley, 1998
Glueck, Sheldon War Criminals, Their Prosecution and Punishment, Borzoi Book, Alfred Knopf, 1944
Staff of the Committee and the Department of State, A Decade of American Foreign Policy: Basic Documents 1941-49, US Government Printing Office, 1950
Smith, Bradley F., Reaching Judgment at Nuremberg. Basic Book, Inc New York, 1977
The Trial: In the Case of the Atrocities Committed by the German Fascist Invaders in the City of Kharkov and the Kharkov Region. Foreign Languages Publishing House, Moscow 1944
Sayers, Michael & Kahn, Albert The Plot Against The Peace, The Dial Press, 1945
Briand-Kellog Pact, Paris, August 27, 1928.
Ginsburgs, George and Kudriavtes, V.N., The Nuremberg Trial and International Law. Martin Nijhoff Publishers, 1990
Nazi War Crime Trials: International Military Tribunal (‘Blue Series’), US Government Printing Office, 1947