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HISTORICAL BACKGROUND

The 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. 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. 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. 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 5 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

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' 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.

3 On Active Service in Peace and War, by Henry L. Stimson and McGeorge Bundy, Harper and Brothers, New York (1948), pp. 584-91.

* International Conference on Military Trials, Department of State Publication 3080, U. S. Government Printing Office, Washington, D. C. (1949).

J. C. S. 1023 (26 August 1944), Annex A to Appendix B.

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 person 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."

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On 1 October 1944 the Joint Chiefs of Staff approved this directive and presented it for consideration by the Combined Chiefs of Staff.” At about the same time, pursuant to the instructions of the Secretary of War, 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."

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.10 This broad program was then em

J. C. S. 1023/3 (25 September 1944).

7 C. C. S. 705 (2 October 1944).

Contained in a memorandum from Mr. Stimson to the Judge Advocate General dated 25 September 1944.

See AG 000.5 (7 Oct. 44) OB-S-A-M of 25 December 1944. By directive WDCSA 000.5 of 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.

10 On Active Service in Peace and War, op. cit. supra, pp. 585–587.

bodied (22 January 1945) in a memorandum to the President from the Secretaries of State and War and the Attorney General.11

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 12 could no longer be approved by the United States Chiefs of Staff 13

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.1 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.15

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,1 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 17 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 interna

"Printed in International Conference on Military Trials, op. cit. supra, pp. 3–17. 12 I. e., C. C. S. 705 (J. C. S. 1023/3).

13 J. C. S. 1023/5 (13 April 1945, approved 21 April 1945), and C. C. S. 705/3 (21 April 1945).

14 Executive Order 9547 (2 May 1945).

15 On 25 December 1944, by AG 000.5 (7 Oct 44) OB-S-A-M, the theater commanders had been instructed, pending further orders, 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."

16 Printed in International Conference on Military Trials, op. cit. supra, pp. 42–54. 17 See C. C. S. 705/7 (presented to the Combined Chiefs of Staff 8 June 1945).

tional tribunal." 18 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),1o 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," 20 it was subsequently transmitted to the theater commander 21 (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.

J. C. S. 1023/10

The new directive embodied the broader approach to the problem of war crimes which had originated in the conferences between Mr. Stimson and Judge Rosenman and had been systematically set forth in Mr. Justice Jackson's interim report. Indeed, the definitions in J. C. S. 1023/10 of the crimes which it covered were "lifted" almost

18 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."

19 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

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20 J. C. S. 1023/10 (8 July 1945).

21 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.

verbatim from the report of Mr. Justice Jackson.22 The scope of individual responsibility for these crimes was to include not only "accessories" and those who had taken "a consenting part" in crime,23 but also "members of groups or organizations connected with the commission of such crimes" 24 and (as to the crime of aggressive war only) "persons who have held high political, civil, or military sitions in Germany or in one of its allies industrial or economic life of any of these countries." 25

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To prepare for the carrying out of the directive by the initiation of criminal proceedings, the theater commander was directed "to identify, investigate, apprehend, and detain all persons whom you suspect to be criminals” under the foregoing definitions of the crimes and scope of responsibility,26 and "all persons whom the Control Council, any one of the United Nations, or Italy notifies to you as being charged as criminals." The theater commander was ordered to report the names of suspected criminals to the Control Council, and there were additional detailed provisions governing the delivery or "extradition" of suspects from one country to another. The directive provided in very general terms "that appropriate military courts may conduct trials of suspected criminals in your custody" but specified that these courts should be "separate from the courts trying current offenses against your occupation," and that their procedures should be "fair, simple, and expeditious * * * designed to accomplish substantial justice without technicality." As theretofore, the theater commander was to postpone trials of high political, civil, or military officials until it was ascertained whether such persons would be tried before an international military tribunal, as well as trials of persons wanted elsewhere.

General Eisenhower's headquarters made the Theater Judge Advocate (the late Brigadier General Edward C. Betts) responsible for the "effective application" of J. C. S. 1023/10,27 and about a month later General Betts approved a memorandum by Colonel Charles Fairman 28 embodying recommendations for the execution of the directive.

22 Compare the language in paragraph 2, Annex to Appendix A to Enclosure B of J. C. S. 1023/10 (infra, pp. 244–245) with the concluding paragraphs of Part III of the Jackson report, in International Conference on Military Trials, op. cit. supra, pp. 50-51.

23 These phrases apparently were derived from the original draft directive of 26 August 1944 (J. C. S. 1023), mentioned supra, p. 2.

24 Presumably derived from Mr. Justice Jackson's proposal in his interim report "to establish the criminal character" of several organizations such as the Gestapo and the SS. 25 The origin of this very broad phrasing is unknown to me. See infra, p. 72.

26 In the basic directive to the theater commander prescribing the general policies for the United States forces of occupation and the military government of Germany, the theater commander had been directed to arrest and hold numerous categories of "suspected war criminals" and other persons, such as Nazi Party and SS officials, general staff corps officers, and judges and other officials of the People's Courts. (See J. C. S. 1067/6, par. 8b, 26 April 1945.) The entire directive except for the definitions of these categories (which were withheld from publication in order to facilitate additional arrests) was published in The Department of State Bulletin for 21 October 1945, pp. 596-607.

27 This responsibility was imposed by USFET letter to the Theater Judge Advocate dated 20 September 1945.

25 Chief, International Law Section of the Theater Judge Advocate's office.

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