Mission at Nuremberg (14 page)

Those searching for a war crimes road map had to look back to the Hague Convention of 1899, which defined “The Laws and Customs of Wars on Land” and included a prohibition on the “no quarter” custom of attacking surrendered enemy troops. While the Hague conventions sought to regulate the customs of war, they did not restrict a sovereign state from engaging in war in the first place. Those designing the Allied response to Germany's atrocities wanted to pin responsibility on the Third Reich simply for instigating an aggressive war. But the only directly relevant multinational precedent to support these charges was a 1927 agreement put together by the U.S. secretary of state, Frank B. Kellogg, and French foreign minister Aristide Briand.

The agreement, known as the Kellogg-Briand Pact and titled the “International Treaty for the Renunciation of War,” was written to celebrate a decade since the end of World War I. Forty-four countries, including Germany, had signed the pact to “condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.” The parties had also agreed to the settlement of all future disputes and conflicts only “by pacific means.”

The men charged with building a trial at the end of World War II debated whether the signatories of Kellogg-Briand had engaged in a crime by breaching the pact and going to war. Kellogg-Briand had not been intended to define self-defensive war as a crime. Legally, war had always been seen as neutral ground in which both sides had the same rights. Waging aggressive war had never been defined as a crime in international law.

Only when German forces began to retreat from France and Belgium in the late summer of 1944 did the Roosevelt administration begin to think seriously about postwar Germany. Nuremberg prosecutor Telford Taylor credited “a group of New York lawyers,” working in late 1944 and early 1945, for “the ideas which led to the expanded principles of the Nuremberg trials.” The group included Franklin Roosevelt's war secretary, Henry Stimson; Assistant Secretary of War John McCloy; and Lieutenant Colonel Murray Bernays of the Army General Staff.

At the Yalta Conference in February 1945, Winston Churchill proposed to Roosevelt and Joseph Stalin the easiest solution: summary executions. Churchill recommended that once each wanted man was caught and identified by a senior Allied military officer, he should be shot after six hours. Churchill's proposition gained traction with Roosevelt and some in his administration who believed, as Churchill did, that putting Hitler on trial would give the dictator another global stage. In 1944, according to McCloy's papers, American lawyers mounted a mock Hitler trial and discovered that he would have had “endless opportunity for making legal mischief, and, at worst, might [have argued] himself out of a conviction,” wrote historian Richard Overy. Stimson opposed the idea of summary executions and argued for a trial that would reflect democratic notions of justice, in contrast to the tyranny and mayhem the world had just witnessed.

In the early days of war crimes planning, while Roosevelt was leaning toward summary executions, Stimson was imagining a different course. He wrote to the president in September 1944 to state that he was “disposed to believe that at least as to the chief Nazi officials, [the U.S.] should participate in an international tribunal constituted to try them.” That same month, McCloy summoned Murray Bernays to his office for an update on where the Office of the Judge Advocate General's staff stood on punishment of German war criminals. Bernays was a successful New York attorney before the war, and he would later become a chief intellectual architect of the Nuremberg idea.

McCloy started the meeting by telling Bernays and Colonel Archibald King, chief of the JAG's War Plans division, that there was “considerable pressure, particularly from British sources, by persons of such importance that their advice cannot be brushed aside, to the effect that trials of war criminals, particularly prominent ones, should be extremely brief and amount to little more than indentification [
sic
] of the accused as the person charged, followed by a finding and the sentence.” That procedure, McCloy said, “would be especially applicable to persons of prominence whose misdeeds are well known, such as [Heinrich] Himmler. There might not be any opportunity for the accused to summon witnesses.”

McCloy said this option was met with “a revulsion” within the War Department. The “opposite view,” he said, was that “there should be a full trial of every accused by military commission.” The middle option, which McCloy favored, was “a brief trial of a day or two in length rather than several weeks.”

The topic turned to how to define war crimes, and the jurisdiction of the courts that would try those who were accused of committing them. McCloy mentioned the difficulty of prosecuting German nationals who, while working for the German government, interred and killed German Jews.

Bernays replied that as a Jew, he deeply sympathized with the German Jewish population, but that he didn't believe their mistreatment constituted war crimes. For other governments to concern themselves with Germany's atrocities against its Jews “would invite investigations and complaints by other nations of the treatment of Negroes in the United States, Indians by Great Britain, etc.”

After someone briefly mentioned “international tribunals for the trial of the most important criminals whose offenses are international in character,” the three men ended the meeting with an acknowledgment that “there is at present in existence no detailed directive as to [the] investigation and trial of war crimes or the operation of military commissions.”

It was a remarkable moment that would spark one of the most famous trials in history. Yet what was also remarkable was the reticence to try the Nazis for mass murder. The two men agreed that there was no set definition for war crimes, nor was there a working plan by the U.S. government or military yet to prosecute war criminals. Even the president was wavering, telling administration officials that he disliked “making detailed plans for a country which we do not yet occupy.”

A week after his meeting with McCloy, Bernays wrote an influential memo that helped shape what became the International Military Tribunal. Bernays acknowledged that there were “many thousands of war criminals all over Europe,” and he suggested that the Allies lean on the legal idea of criminal conspiracy to better include those thousands of war criminals under the culpability of various Nazi organizations, such as the SS, SA, SD, and Gestapo. Once the organization was found guilty of conspiracy to commit war crimes, Bernays reasoned, anyone who could be proven to be a member of that organization was also guilty.

McCloy liked Bernays's proposal and invited Bernays to present it to Stimson, who also reacted favorably and showed the plan to Roosevelt. The president “gave his very frank approval,” Stimson wrote, when he recognized that “representatives of all classes of actors brought in from top to bottom, would be the best way to try it and would give us a record and also a trial which would certainly persuade any onlooker of the evil of the Nazi system.”

In January 1945, Roosevelt wrote a memo to his secretary of state, requesting a report on the status of the work being done by the U.N. War Crimes Commission, “particularly . . . on offenses to be brought against Hitler and the chief Nazi war criminals.” Roosevelt wrote that “the charges should include an indictment for waging aggressive war, in violation of the Kellogg Pact. Perhaps these and other charges might be joined in a conspiracy indictment.”

Less than three weeks later, Roosevelt received a position paper, approved by his secretaries of state and war and his attorney general, that foresaw an international court that would try both “the highest ranking German leaders” and the Nazi organizations they led. After this major trial, smaller trials would prosecute individual members of those organizations that had already been proven to be criminal. Once prosecutors established the membership of these lesser Nazis in the criminal organizations, their individual punishment would be gauged by the facts in each case. But Roosevelt still would not make up his mind and give the plan final approval.

After Roosevelt's death in April 1945, President Harry Truman assigned Justice Robert Jackson to lead the American prosecution team, and Allied troops began rounding up German war criminals from captured territory. Truman made it clear that he opposed summary executions for the Nazi elite and supported the establishment of a military tribunal. The Americans began cornering and capturing Nazi leaders in farmhouses and basements throughout the Reich. As various SS and Gestapo members were captured, they were interrogated, and the intelligence the Allies obtained led to virtual arrest warrants—most-wanted descriptions used by Allied Nazi hunters—for more Nazis, many of whom were hiding in the vicinity of Aachen:

 

• 
MARKOW, Ernst
Locksmith. Party and SA member since 1933. In 1934, became a member of the SS and NSKK [National Socialist Motor Corps]. Actively and brutally engaged in the Jewish pogrom in Nov. 38. Figure: Stocky. Hair: Blond.

• 
KLOTTEN, Gerhard
Influential member of the SA since 1935. Became famous during the war for his brutal treatment of PW. According to available information he intended to engage himself in agricultural work in the Bergheim area in case of an Allied victory. Figure: Thick set. Hair: Blond.

• 
DREESEN, Hans
SS officer. In July 1943 he . . . stoned an American pilot and beat him with a rubber truncheon. Residence: Jacobstrasse. Figure: Slender. Eyes: Blue.

 

As the war came to a close,
New York Times
London bureau editor E. Clifton Daniel Jr. wrote a letter to the U.N. commission, offering an outline for a piece on war crimes that Daniel hoped someone on the commission would write for the
Times
magazine. “Assuming that there is to be no formal reprisal against the German people as a whole, the public would undoubtedly like to know exactly who will be punished, for what reasons, and by what methods,” he wrote.

Around the same time, Gordon Dean, who would become Robert Jackson's press aide at Nuremberg, wrote a memo to the Overseas section of the Office of War Information, outlining for the section's Policy Directive the reasons why the U.S. opposed summary execution for the major war criminals. “We believe that whatever their guilt, it should be established in a fair and public trial,” Dean wrote, “and that not only should the major criminals be tried, but that they should be tried for their major crimes—crimes which are far more terrible, more far-reaching and more subtle than individual or even mass executions.” The reasons for the U.S. position, Dean said, included:

 

a. Summary execution, without a documented account of their real guilt, would only result in the world's forgetting their major sins, and these sins must never be forgotten. For current consumption the world must be able to see clearly what they did and how they did it.

b. For benefit of future generations, their real crimes must be spread on the history books lest the same patterns be repeated when memories are dimmed.

c. Such trials are perhaps the most promising medium for the development of precedents—now lacking because of our failure after the last war to develop an international criminal code—precedents which will be plain to all potential aggressors who might be tempted to repeat that pattern which these trials will expose and condemn. An effective international criminal law can and should result from these trials.

d. The concept that guilt should be fairly ascertained is so embedded in the charters of the countries of the civilized that we cannot afford to abandon it here simply because the guilt is great. We fought a war because of what other powers stooped to. Now that victory is here we must not allow ourselves to stoop to their leve. [
sic
] In short, we want a just judgment.

e. To try these war criminals only for individual cases of murder or theft of art treasures would be to miss completely—and the world might either never comprehend, or comprehending, forget—the bigger plan or conspiracy which was the real Nazi crime with its network of ramifications, conceived and directed by those in the higher echelons of the Nazi party.

 

As Dean and others made clear, there was no legal precedent for framing charges against the captured Nazis. Thus, Allied leaders were still hashing out the best way to punish people whose criminal activities were so horrendous that laws barring those activities didn't technically exist.

Richard Overy wrote that the difficulty for Bernays, Stimson, Jackson, and the other architects of the Nuremberg framework came from defining the crimes in such a way that the laws could be applied to Hitler's henchmen when these men's direct participation in the atrocities at hand would be difficult to prove beyond a reasonable doubt:

 

The radical solution proposed by Jackson and the American prosecution team was to include all the actions deemed to be criminal under the single heading of a conspiracy to wage aggressive and criminal war . . . [which] could rightfully include everything the regime had done since coming to power on 30 January 1933. It could include the deliberate repression of the German people, the plans for rearmament, the persecution of religious and racial minorities, as well as the numerous crimes committed as a consequence of the launching of aggressive war in 1939. . . . Conspiracy caught everyone in the net, regardless of their actual responsibility for specific acts.

The Americans drew up a list of one hundred candidates for a major trial, but the British wanted around a dozen defendants. At one point, the British even suggested that in the absence of Hitler—who had killed himself in April—Goering should stand trial as Nazism's lone representative.