Allied War Crimes Trials

On 14 November 1945, the proceedings of the International Military Tribunal at Nürnberg (Nuremberg) were opened. The twenty-four accused, whose number was later reduced to twenty-two by disease and death, among the top officials of the National Socialist Party, the top leadership of the armed forces and of the state administration of the defeated German state, were confronted with three classes of accusations:

1. Crimes against peace;
2. War crimes in a more restricted sense, e.g., violations of the laws and customs of war;
3. Crimes against humanity.

Nine months later, twelve of the defendants were indeed condemned to death on the basis of two or more of the charges, three were set free, and the remainder was sentenced to prison terms of varying duration.[1]

Controversy was aroused among jurists and the general public alike, above all in regard to the validity and treatment of points (1) and (3).

On 3 May 1946, the proceedings of the International Military Tribunal for the Far East were opened at Tokyo. The twenty-eight accused, whose number was later reduced to twenty-five by death and insanity, among the top officials of the administration and the armed forces of the state of Japan, were confronted with the charges of having committed crimes against peace and war crimes (violations of the laws and customs of war); there were no accusations of crimes against humanity. One year and a half later, seven of them were indeed hanged, and sixteen sentenced to lifetime imprisonment on fifty-five counts.[2]

The prehistory of the Tokyo Trials was somewhat different from those at Nürnberg. The principles and methods for the latter were laid down, at first provisionally, at a meeting between representatives of Britain, the U.S.A. and the USSR in October 1943 at Moscow and with greater clarity during a conference in June 1945, between delegates of the three first-named states and those of France. In Moscow, two kinds of classifications were established: (1) those officers and men who had committed, or carried out, atrocities in a particular country would be sent back to that country to be tried; (2) in the case of major war criminals whose offense had no particular geographic location, they would be “…punished by the joint decisions of the Governments of the Allies.”[3] The purpose of the London meeting in 1945 was to provide a systematic procedure and a code of law for the subsequent Nürnberg process.[4] The accomplishments of the London conference, and some of the problems arising from it, will be treated in greater detail below.

The International Military Tribunal in Tokyo, on the other hand, was first contemplated at the Cairo Conference of 1 December 1943. Further references concerning the trial of alleged Japanese war criminals were made in the Declaration of Potsdam of 26 July 1945, and in the Instrument of Surrender of 2 September 1945. On 19 January 1946, General McArthur, as Supreme Commander of the Allied forces in the Far East, established the Tribunal for the trial of offenses similar to those charged against the accused at Nürnberg, with the exception of “crimes against humanity…[5]

In addition to these major legal processes, “war crimes trials” were also conducted against individual enemy officials and commanders, and against subordinate organizations, both in the Orient and in Europe, by individual victor powers. The proceedings against General Yamashita, the trials in the four zones of Germany conducted according to Law Number 10 of the Allied Control Council, and the twelve “lower” Nürnberg trials of 1947 and 1948, are commonly included in discussions of the war crimes trials.[6]

For the epoch-making International Military Tribunal at Nürnberg, which lasted for nine months, members of the Tribunal were selected from among the four large victor nations: Britain, France, the U.S.A., and the USSR. On the side of the prosecution, the Main Prosecutor for the U.S. was Justice Robert H. Jackson (who was also Chief of Counsel); for Britain, State Attorney General Sir Hartley Shawcross; for France, Francois de Menthon, Auguste Champetier de Ribes;[7] for the USSR, General R.A. Rudenko. On the side of the Tribunal sat Mr. Francis Biddle, member for the U.S., and his alternate, judge John J. Parker; M. le Professeur Donnedieu de Vabres, member for France, and his alternate, M. le Conseiller Falco; Major-General I.T. Nikitchenko, member for the USSR, and his alternate, Lieutenant-Colonel L.T. Volchkov; and, finally, Sir Geoffrey Lawrence (now Lord Oaksey), member for the United Kingdom, and his alternate, Sir William Norman Birkett (now Lord justice). Sir Geoffrey was elected Chairman of this panel of jurists.[8]

The mechanical aspect of the proceedings was impressive by itself. The trial was conducted in four languages, involved the calling of thirty-three witnesses in open court for the Prosecution, sixty-one for the Defense, a further 143 for the Defense via written answers, and some thousands of others giving evidence by affidavit for Defense and Prosecution.[9]

The judgment of the Court was delivered on 30 September and 1 October 1946. Of the twenty-one defendants personally present (Martin Bormann was unavoidably detained) three were acquitted: Franz von Papen, Chancellor of the Weimar Republic in 1933, before the takeover of Hitler Ambassador to Turkey afterwards, and imprisoned by Hitler in the closing months of the war as untrustworthy;[10] Hans Fritsche, National Socialist radio propagandist; and Hjalmar Schacht, erstwhile Director of the German Reichs-Bank, internationally esteemed financial expert, and, together with Papen, supporter of the “strongman” Hitler in the waning days of the Weimar Republic, similarly subject to change of mind, and similarly imprisoned.[11] Three defendants received life sentences: Rudolf Hess, once Second-in-Command to Hitler and best known for his “Peace flight” to Britain (1941); Walter Funk, National Socialist economic organizer and Erich Raeder, Grand Admiral of the former German Fleet and advocate of a stronger surface fleet before 1939, cautioning against military involvement with Britain.[12] Four received jail sentences of ten to twenty years: Baldur von Schirach, National Socialist youth leader; Albert Speer, expert Organizer of armaments production (although once an architect by trade); Constantin von Neurath, Foreign Minister before 1938 and Reichsprotektor of Bohemia Moravia prior to 1942; and Karl Doenitz, capable submarine admiral and head of the German Reich in its last days in 1945.[13] The remaining twelve accused were condemned to death, among them the top leaders of the National Socialist party-and-state machine: Hermann Wilhelm Goering, Joachim von Ribbentrop, Wilhelm Keitel,, Ernst Kaltenbrunner, Hans Frank, Wilhelm Frick, Alfred Rosenberg, Julius Streicher, Fritz Sauckel, Alfred jodl, Arthur Seyss-Inquart and Martin Bormann. In addition, the following groups and organizations were declared criminal: the SS and SD (Schutzstaffel, Sicherheitsdienst – Himmler's private army and security police); the SA (Sturmabteilung – the storm troopers powerful during the dusk of the Weimar Republic, under their leader Roehm, who was liquidated by Hitler in 1934); the Gestapo (Geheime Staatspolizei – the secret police under the wing of the SS and Himmler); and the Leadership Corps of the National Socialist Party. The Reich Cabinet and the General Staff and High Command of the German Armed Forces (OKH and OKW –Oberkommando des Heeres, Oberkommando der Wehrmacht) were, as corporate entities, acquitted of the charge of criminality.[14] Treading in the footsteps of the International Military Tribunal at Nürnberg with regard to the three points of accusation, and especially in harmony with the principle of personal responsibility for “criminal” orders established there, the war crimes trials which were held against German leaders of subordinate level were conducted by so-called victor powers in many European countries, including the four individual occupying powers acting within their segments of Germany.

Aside from the obviously biased and political proceedings in Communist-occupied Europe,[15] two of the Western powers acted on the strength of the Allied Control Council Law Number 10 (mentioned above) which authorized the four Zone Commanders to set up tribunals for the punishment of war crimes, crimes against peace and crimes against humanity. The British occupation authorities, the Government of which had shown mixed feelings about the extent of the categories of offenses punishable under the Nürnberg Charter, did not follow Law Number 10, but heeded the Royal Warrant of 14 June 1945, which instituted prosecution of “violations of the laws and usages of war” only. In addition to the trials held by occupation authorities, a number of persons were also charged before German courts with crimes committed against German nationals or stateless persons.[16] Furthermore, the Allies, among them especially the U.S., created special Denazification Courts-which were later handed over to the Germans-to carry out the task of “cleansing” the mass of small-time fellow-travellers. In the American Zone, 3.6 million out of 16 million adults were thus processed and filed in an elaborate classification and penalty scheme.[17]

In the British Zone, military tribunals tried 937 persons, acquitted 260, and sentenced 230 to death. In the U.S. Zone, 177 persons were tried by military tribunals, 24 were sentenced to death, 35 acquitted. In the small French Zone, military courts tried 2,107 people, condemned 104 to death, acquitted 404, and gave 1,235 shorter prison terms.[18]

In Western Europe, military trials were also conducted by the Netherlands (35), Norway (11), Canada (5), and Greece (1). Additionally, the three big Western powers tried German defendants in countries where the latter had held official positions. Thus, Generals von Mackensen, Maelzer and Kesselring were tried in Rome and Venice, respectively, by British authorities, while General Dostler was subjected to a similar process by the United States in Rome.[19] In addition, twelve subsequent Nürnberg trials were carried out from January 1947 to October 1948. In these, a motley and highly divergent collection of defendants was tried; many sentenced to death or to long prison terms. These “lower” Nürnberg proceedings were conducted by the United States Government against the following groups: (1) the Concentration Camp Medical Case, (2) the Milch Case against Air Field Marshal Milch, a deputy of Goering, (3) the justice Case against a number of high-ranking judges of the Third Reich, (4) the SS Case against some surviving leaders of the SS, (5) the Flick Case against this steel magnate and five associated industrialists, (6) the Farben Case against twenty-four officials of the Interessen-Gemeinschaft Farben chemical trust, (7) the Hostages Case against army officers charged with vi,olating the customs of war; let it be briefly noted here that some of these twelve generals, among them Speidel, Lanz, and Foertsch, had actively conspired against Hitler and vainly tried to get in touch with Allied leaders since 1942/43[20], (8) the RUSHA Case against National Socialist “Race Administrators,” (9) the Einsatzgruppen Case against leaders of anti-partisan commandoes, (10) the Krupp Case against this industrial leader and eleven of his collaborators, (11) the Ministries Case against chief administrators in the war economy and the foreign office, (12) the High Command Case against fourteen high-ranking generals of the Army and Air Force.[21]

The main trial of alleged Japanese war criminals, corresponding in scope to the Nürnberg case for the European theater, was the International Military Tribunal for the Far East, convened in Tokyo on 3 May 1946, and concluded on 11 November 1948, or some two years later than its European counterpart. Eleven states furnished judges and prosecutors: Britain, China, France, the U.S.A., the USSR, Canada, Australia, India, New Zealand, the Netherlands and the Philippines. In distinction to the Nürnberg trials, where all defense counsels were Germans, a mixed team of both Japanese and American attorneys managed the defense. Also in distinction to the Nürnberg proceedings, the defendants were accused of but two classes of offenses, crimes against peace and war crimes. There were no charges of membership in criminal organizations and of crimes against humanity, except where they bore directly upon war crimes. Out of the twenty-five surviving defendants, one received a prison term of seven years (Ambassador Shigemitsu), one a term of twenty years (Ambassador and Imperial Foreign Minister Togo); sixteen were sentenced to life imprisonment, and seven were condemned to die.[22] The accused given life sentences were: Araki, Imperial War Minister; Hashimoto; Hata; Hiranuma, Prime Minister; Hoshino, President of the Economic Planning Board; Kaya, former Finance Minister; Kido; Education Minister; Koiso, Prime Minister; Minami,

War Minister; Oka; Oshima, Ambassador; Sato; Shimada, Navy Minister; Shiratori, Ambassador; Suzuki, President of the Economic Planning Board (a post also held by Hoshino); Umezu, Minister Without Portfolio. The seven who were hanged were: Dohihara; Hirota, Prime Minister; Itagaki, War Minister; Kimura; Matsui; Muto; and Hideki Tojo, Chief of the Army General Staff and Prime Minister.[23]

Aside from the military trials held by Australia (numbering 2 75) and China (numbering two), Britain and the United States conducted further proceedings. Thus, the U.S. heard 317 cases in Japan, 11 in China, 97 in the Philippines, 25 in the Pacific Islands, for a total of 3,095 defendants tried, 448 acquitted, 689 condemned to death.[24] Perhaps the most famous of these cases (or, most infamous, according to one's interpretation of justice) was the trial of the able General Yamashita, conqueror of Malaya and Singapore against an enemy vastly superior in numbers, and later, commander of the Japanese Army in the Philippines. Sentenced to death, his case was appealed to the ultimate pinnacle of the U.S. Supreme Court which upheld the conviction.[25]

The Japanese “democratization” counterpart to the German Denazification was also numerically impressive, involving the examination of millions of questionnaires; it seems to have been more efficient, as “only” some 200,000 persons of formerly higher status were purged from public life.[26] SCAP, Supreme Commander for the Allied Powers, however, had other deep-going reforms in store for the Japanese, including the renunciation of divinity by the Emperor (the revering of whom was enshrined in the official state religion, Shinto), and the democratization of the Meiji Constitution of 1889 in harmony with the principles of the Potsdam Declaration. Wisely, SCAP, General McArthur and his advisors retained the office of Constitutional Emperor, making him the titular “… symbol of the State and of the unity of the People … “[27] Again, the scope of this paper prohibits further unravelling of this fascinating theme.

In sum, one may safely say that millions of people in the occupied countries of Europe and the Far East were directly or indirectly affected by the war crimes trials conducted by the Western Allies. In conjunction with the lost war, the numerous and multilayered judicial proceedings against members of the former Axis Governments – and, by extension, against the peoples ruled by them – radically uprooted social and political patterns which, in certain instances, had stood the test of centuries, or of millenia. Purists may argue that the suffering of the defeated (as well as of some of the victors) was brought on by the aggressive and brutal conduct of their leaders, and that the victors only strove to re-impose order and justice on “the world.” One may ask that, if all was well with the world before the so-defined aggressions started, why did they start at all; and, if all was not well, why did the wise victors-to-be not change it for the better, or, failing in this, refrain from bandying about “idealistic” statements purporting to show that they could? In other words, the preconditions and the conduct of the war crimes trials were not based on traditional legal foundations, but were tainted with uncertainty and “politics.” The rest of this paper will be occupied with tracing the rationalizations of the Allied judges and with laying bare a few crucial weak points in the plaidoyers of the Allied persecution. Viewed positively, the content of the paper will center about the struggle carried on against legal uncertainty and the exigencies of a war-ridden world by those Allied jurists who desired to arrive at new, more comprehensive, and less challengeable, principles of international law-a struggle against themselves, so to speak. We shall try to examine the actions of the Western powers at the trials by the guiding light of these questions: (1) how did they justify their police and judicial proceedings? (2) did their procedures accord with their professed substantive principles, and could these principles claim to be extensions of existing international usage and law? (3) possibly, could the failures alleged of the trials be said to spring from failures and contradictions in the Grundnormen (to paraphrase Hans Kelsen) of Western Civilization, of the Western Powers, or of their principal leaders? The questions have been raised, but they cannot with finality be laid to rest within the confines of this paper.

With emphasis on the actions of the International Military Tribunal at Nürnberg, such orientation will necessitate locating the foundations of the war trials, outlining a history of attempts at humanizing warfare, including the drawing of inferences from the development of international relations between the wars, and touching on the main criticism of the trials. These, showing errors of omission and commission, as it were, of the Western Allies, will be treated in separate sections-errors worthy of high rank on any perennial list of war crimes -yes, deeds unpunished, unmitigated, but glorified, as having contributed to the annals of civilization and “progress.”[28]

Footnotes