US policy and Nazi war crimes 1943-1946

[David Thompson]

For those readers who may be interested, here is a brief history of the development of US policy on the issue of Nazi war crimes. It is taken from the official history The US Army in the Occupation of Germany 1944-1946 by Earl F. Ziemke, pp. 169-72; 215-221; and 390-95. The full text is available on-line from the US Army Center of Military History, at:

http://www.army.mil/cmh-pg/books/wwii/Occ-GY/

pp. 169-72

War Crimes

The post-World War II prosecution of war criminals had its formal beginnings in the Moscow Declaration of 1 November 1943 and the United Nations War Crimes Commission, which began its work in London in January 1944. The Moscow Declaration pledged the three major allies, speaking in the interest of all the United Nations, to seek out Axis war criminals and return them for punishment to the countries in which the atrocities had been committed. The declaration implied further that major war criminals, whose offenses were not restricted to a geographical area, would in some manner be punished jointly by the Allied governments.42 The War Crimes Commission was charged with gathering evidence and compiling lists of Axis war criminals.

War crimes had been a lingering concern of the anti-Axis nations throughout the war, a concern that in part reached back to 191 9 and the Paris Peace Conference where provisions for trying accused Germans had been written into the Treaty of Versailles but not enforced. Before November 1943, the US President, the British Prime Minister, and the governments in exile had issued numerous warnings aimed particularly at deterring the Germans from executing hostages and from mistreating and murdering Jews. That many crimes against Allied soldiers were also to be expected could be inferred from Hitler's "Commando" order of 1942, which refused quarter to enemy troops on raids or missions behind the German lines, and from the official encouragement, beginning in 1943, of civilian attacks on downed US and British airmen. The victims of such policies, civilian and military, could number in the millions and the perpetrators in the tens of thousands.

In spite of their seriousness, war crimes were for a long while a subject on which the US authorities spoke sternly but acted with elaborate caution, both for good reasons. As long as hostilities lasted, verbal deterrence-the promise of punishment-was for the US government the only feasible approach. The other possibility of actually trying war criminals as they were captured, although a more positive deterrent, could also bring reprisals against US prisoners of war in German hands, and American public opinion was especially sensitive to

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the welfare of prisoners of war. In November 1043, while Eisenhower was still commanding in the Mediterranean, Secretary of State Hull urged and Eisenhower agreed that no publicity should be given to the capture of war criminals or to evidence collected against them. Hull even advised against any actions that might reveal individuals to be under suspicion, and Eisenhower, to be on the safe side, forbade not only trials in the theater but all publicity on the subject.43 In December, when the Soviet Union tried and condemned three German soldiers at Kharkov for gas van atrocities, Hull announced that the United States did not regard "direct handling of war criminals" as falling within the terms of the Moscow Declaration.44 When the Germans threatened to try captured British and American airmen (reprisals against Soviet prisoners of war being somewhat superfluous since neither the Germans nor the Soviet Union recognized any rules in their war against each other) , the State Department assured the Germans through the Swiss of continuing US strict observance of the Geneva Convention.45

In the plans for OVERLORD, both the Standard Policy and Procedure and CCS 551, the presurrender military government directive, made the arrest of war criminals an objective of the occupation. CCS 551 directed Eisenhower to have arrested and "held for investigation and subsequent disposition" Adolf Hitler, his chief Nazi associates, and all war crimes suspects, including those on the War Crimes Commission lists.46 Neither document, however, applied outside the German borders, and procedure for dealing with war crimes developed slowly. On 20 August 1044, SHAEF established a standing court of inquiry in G-1 to collect and preserve evidence "only in cases involving Allied military personnel." The court of inquiry was not mobile and could only hear witnesses and receive evidence brought to it. 47 In the first week of September, just before the first troops crossed the German border, SHAEF instructed the army group commanders to take all war criminals into custody "so far as the exigencies of the situation permit," lout the army groups were not given instructions on the investigative procedures for another three months. 48

A good part of the reason why little had been done at SHAEF up to the late summer and fall of 1944 - apart from the concern for reprisals which was always predominant-was that equally little was teeing done in Washington. In August the Joint Chiefs of Staff were just beginning to work on a war crimes directive, JCS 1023, which at that stage constituted mainly a definition of war crimes.49 The law as to the nature and punishment of war crimes was far from precise. The Responsibilities Commission of the Paris Peace Conference in 1910 had listed thirty-two specific war crimes. In 1943, the War

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Department's Judge Advocate General had identified forty-four crimes.50 JCS 1023 accepted the following as a general definition: "The term, war crimes, covers those violations of the laws and customs of war which constitute offenses against persons or property, committed in connection with military operations or occupation, which outrage common justice or involve moral turpitude." 51 Neither the two lists nor the definition extended the concept of culpability beyond the commission of specifically identifiable acts, and whether such acts could even be successfully tried was doubtful. Although the Judge Advocate General had found no bar to trying war criminals during hostilities, the United States was obviously not inclined to exercise that prerogative.52 As a further obstacle, FM 27-10, Rules of Land Warfare, appeared to give most defendants an easy plea by providing that members of armed forces would not be punished for crimes "committed under orders or sanction of their government or commanders." 53

Nevertheless, late summer 1944 was as crucial a period in the US thinking on war crimes as it was in other matters concerning the occupation. In the outline of his plan for Germany which Morgenthau sent to Stimson on 6 September, he included a proposal for dealing with war criminals which specified that a list be made beforehand of the "arch criminals . . . whose obvious guilt is recognized" and that after being captured and identified they be executed by firing squads without trial. Specific crimes "leading to or causing the death or persons" were to be tried by military commissions.54 Morgenthau had talked to Hilldring about the proposal some days earlier, and Hilldring had wondered how people would get on the list, a question Morgenthau seems never to have answered to his own satisfaction. Stimson, in his memo to the President on 9 September, ranked the proposed war crimes policy almost equally with the economic provisions in his objections to the Morgenthau Plan. The accused, he insisted, would have to be charged, heard, and allowed to call witnesses in their defense; the punishment would have to be accomplished in "a dignified manner consistent with the advance of civilization" for the sake of "the greater effect on posterity." He proposed that an international tribunal be set up to try the "chief Nazis" and that the other war criminals be returned to the scenes of their crimes as the Moscow Declaration required.55

Although Stimson subsequently withdrew from the argument on the economic future of Germany, he became more passionately involved with the war crimes question as time passed, not only continuing to argue for orderly trials but making himself a leader in the development of the legal philosophy on the whole subject. His first reaction to the Morgenthau proposals seems to have been that all charges against major as well as lesser criminals would have to based on violations of existing laws of war. Much as he abhorred them, he said, he did not see how crimes committed in Germany or committed before the war began, such as the killing of Jews, could be considered crimes which the United

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States could punish "any more than Germany would have a right to intervene in our country to punish people who are lynching the Negroes." 56

After the Quebec Conference, when he heard that the President and Prime Minister had leaned toward the idea of executions without trials, Stimson appointed a panel of War Department lawyers to study the question.57 Although he remained opposed to mass summary executions, his thinking on what constituted punishable offenses changed. From the study, which continued to the end of the year under Stimson's active leadership, a plan emerged for a grand conspiracy trial not only of individuals but of organizations as well, such as the SS and Gestapo. The charge would be conspiracy to dominate the world "by means wholly contrary to international law." 58 The law would be less the rules of war than the prewar international agreements which had sought to outlaw war itself, particularly the Kellogg-Briand Pact. Stimson was encouraged when, after telling Roosevelt the story of a conspiracy case he had tried against the American Sugar Refining Company in 1906, the President "gave his very frank approval to my suggestion . . . that conspiracy with all of the actors brought in from the top to the bottom, or rather with all classes of actors brought in . . . would be the best way to try it . . . ." 59

In the fall, spurred by Secretary Stimson's interest, the War Department began to acquire organizations for dealing with war crimes. At the end of September, on instructions from Stimson, the Judge Advocate General established a war crimes office which some weeks later, by agreement with the Navy and State Departments, became the National War Crimes Office.60 The mission of the office was to collect evidence of "cruelties, atrocities, and acts of oppression'' against members of the US Armed Forces or other Americans and to apprehend, try, and execute sentences on persons against whom cases were developed.61 Stimson kept the handling of policy in his own office, naming Assistant Secretary of War McCloy as his representative "in all matters involving war crimes" and charging G-1 with staff supervision of plans and policies.62 In November, FM 27-10 was revised to eliminate the plea of superior orders.63

By year's end some of the new thinking in Washington was beginning to reach Europe. The JCS had submitted 1023 to the Combined Chiefs of Staff in October but, when the scope of the US approach expanded shortly thereafter, did not press for its conversion into a combined directive. Consequently, Eisenhower, as Supreme Commander, could only continue under the limited guidance he had received earlier. The War Department, however, could issue instructions to him independently as

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Commanding General, ETOUSA, and on 25 December the Judge Advocate General directed the theater judge advocate general to set up a war crimes office similar to the one recently created in Washington. To Eisenhower, G-1 explained, "Mr. Stimson regards the investigation of war crimes as a subject of top importance." 64 The theater war crimes branch was to lie charged with investigating war crimes alleged against Americans and, for transmission to the appropriate governments, also crimes against nationals of other United Nations; but no war criminals were to be tried.65

(to be continued)

[David Thompson]

Part 2:

pp. 215-221

War Crimes

By the turn of the year 1944-45, the war crimes question was becoming urgent without having been brought measurably closer to a solution. The War, State, and Navy Departments had worked since November on a recommendation to the President for a grand conspiracy trial. As the War and State Departments drew closer to agreement on the wording, the Navy became increasingly uninterested and finally withdrew altogether, stating that its interest was limited to the traditional concept of war crimes as single identifiable acts. The Treasury, also consulted, refused to give its concurrence without provisions that would have allowed any of the United Nations, as a matter of first priority, to claim and dispose of alleged German war criminals as they saw fit. Where the President stood and how he would react to the approach of the War and State Departments had been uncertain all along but appeared particularly so in December when he appointed Judge Samuel I. Rosenman as his special adviser on war crimes.32

Simultaneously, the time for influencing the President was becoming threateningly short. The Big Three meeting at Yalta was scheduled for early February, and a decision on war crimes was likely to be made there. The British government was already pressing for an answer to a question that could scuttle the conspiracy trial before it was even properly launched. In late September, the United Nations War Crimes Commission had proposed a United Nations court to be created by treaty and be charged with trying all war crimes cases.33

The British government vehemently opposed the idea of a treaty court, ostensibly on the grounds that setting up such a court would take intolerably long; it wanted a strict interpretation of the Moscow Declaration of 1943, under which each nation would try the persons accused of having committed crimes against its subjects or on its territory. In an aide memoire of 30 October, the British had asked the US government to join in communicating these views to the War Crimes Commission.34 The difficulty of organizing a treaty court could not be denied, but an international tribunal was essential to the War Department's concept of a conspiracy trial, and an affirmative answer to the British could have been a crippling blow to it. The State Department delayed answering, but by late December the continued silence was beginning to arouse suspicion in the War Crimes Commission that the United States and United Kingdom were not interested in the problems at all, and the British were talking about presenting their views independently. 35

In the first week of January a break appeared when the President, on the 3d, asked the Secretary of State for a report on the status of proceedings in the War Crimes Commission, particularly concerning the approach the US representative was taking, and indicated he believed a conspiracy indictment and an indictment for waging aggressive warfare ought to be included.36 During the next three weeks, in meetings with Judge Rosenman and justice Department representatives Stimson

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and McCloy, with the State Department agreeing, succeeded in getting the War Department thinking on war crime trials written into a memorandum for the President. Two days before the last draft-the twelfth written since November 1944-was completed, Stimson repeated his views to the President but was not "sure whether it registered." 37

The memorandum went to the White House on 22 January. In it the concept of criminality was broadened, particularly vis-à-vis Stimson's original thinking, to include "pre-war atrocities and those committed against their own nationals, neutrals, and stateless persons, as well as the waging of an illegal war of aggression with ruthless disregard for international law and the rules of war." Such crimes as those committed inside Germany before or during the war which could not be classified as offenses against international law or existing German law would, nevertheless, be tried and punished because to do so was declared United Nations policy and because postwar security, the rehabilitation of the German people, and the demands of justice required such action. The trials would be carried out in two stages. To conduct the first stage of trials, an international court would be created by executive agreement, thus avoiding the cumbersome process of establishing a treaty court. The highest ranking German leaders would be brought before the tribunal both as individual defendants and as representatives of Nazi groups and organizations. They would be charged with specific crimes and with "joint participation in a broad criminal enterprise which included and intended these crimes, or was reasonably calculated to bring them about." The tribunal would adjudicate not only the guilt of the persons brought before it but also the complicity of the organizations included in the charges. In the second stage, other courts would try the rank and file members of organizations that the international tribunal had found to be criminal. Where specific acts or atrocities could not be proved, membership in the proscribed organization would be considered ample evidence to sustain a conviction, and the nature and extent of the individual's participation would determine the severity of the sentence." 38

The memorandum included a draft executive agreement for an international tribunal. Stettinius carried a copy with him to Yalta, but, contrary to State and War Department expectations, war crimes were barely mentioned at Yalta aside from the customary press releases promising swift punishment and a statement in the protocol submitting the question to the foreign secretaries for a report in due course.39 The President had not acknowledged receiving the memorandum before he left for the conference, and after he returned, gave no sign that he approved it or, indeed, that he had read it. Mounting speculation in the newspapers on the war crimes question, talk in Congress about its taking the lead, and soundings in the White House by the War and State Departments concerning the memorandum all failed to bring a response.40

The silence had not been broken on 6 March when the British Ambassador, Viscount Halifax, reminded Acting Secretary of State Grew that the aide memoire of

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30 October 1944 had not yet been answered. The British government, he added, believed a discussion of war crimes and war criminals would be mutually advantageous and, therefore, invited Brig. Gen. John Weir, director of the War Department (National) War Crimes Office, and Green H. Hackworth, Legal Advisor to the State Department, and any other officials the State or War Departments wanted to send, to a meeting in London at the middle of the month. The invitation was at once an opportunity and a potential pitfall : an opportunity to solicit a presidential opinion on the memorandum ; a pitfall in that if the attempt failed, the Americans would have a hard time persuading the British to accept an approach that was not even adopted in Washington. Presumably, the British would not have issued the invitation without knowing what they wanted to do. The assumption could also be made that what the British wanted would differ considerably from what the Americans intended to propose. At Yalta, Prime Minister Churchill had said-as he apparently also had at Quebec four and a half months before-that he preferred to have the major criminals shot without trial. 41 That President Roosevelt did not lean more toward Churchill's thinking than toward Stimson's and the War Department's was by no means certain.

All in all, the outlook for a satisfactory meeting in London was not bright, and ten days had elapsed before the State Department informed Mr. Roosevelt of the British invitation, asking him to authorize Judge Rosenman to head the US delegation and hinting that a decision on the January memorandum would help get the war crimes program moving. The copy returned from the White House carried an okay, but whether it could be construed as applying to the brief resume of the January memorandum included in the message was doubtful. The State Department waited until late in the month to tell Lord Halifax that Judge Rosenman, already in Europe on other business, would conduct the discussions in London together with General Weir and Col. R. Ammi Cutter, whom the War Department was sending.42 The War Department representatives, wary of going unprepared into talks with the British, had used the interval to work up a detailed agenda and a summary of the US point of view.43

After two meetings, on 4 and 5 April, the negotiations in London were deadlocked. The British insisted on having the worst half-dozen or so offenders, including Hitler and Mussolini, sentenced by "political" means. The farthest they would go, even tentatively, was to permit an arraignment stating the offenses to be drawn up and presented to an inter-Allied tribunal. The tribunal would pass on the truth of the arraignment without considering whether what was charged was "a crime by any law," and the Allied governments would determine the sentences.44 For the next week, while the British negotiators awaited new instructions from the War Cabinet, the Americans consulted with Washington by cable. Stimson's first reaction was that the British proposal deprived the trial of the judicial character he considered essential. Judge Rosenman inclined toward accepting the British approach pro-

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vided the tribunal was military rather than civilian, the sentencing was done by the court, and the arraignment was fully documented (the British wanted it "in somewhat general terms"). Stimson believed Judge Rosenman's conditions were essential, as was also an inclusion of the conspiracy charge in the arraignment; but he remained fearful that the British procedure would diminish the effect on world opinion. The talks broke off on 12 April when President Roosevelt's death forced Judge Rosenman to return home. They probably would not have gone on in any case, since the War Cabinet on the same day decided unanimously against court trial in any form.45 McCloy, who had been in France and arrived in London on the 15th, saw no way of reopening the discussion at this stage even though he brought with him General de Gaulle's agreement to the American position.

In Washington, the uncertainty over the war crimes question was greater than ever-but only for the moment. On the 17th, Judge Rosenman gave President Truman a report on the talks in London. The President at once said he did not believe in a political disposition of the chief criminals and approved the stand the US negotiators had taken, asking Rosenman to carry the matter forward at the forthcoming meeting in San Francisco to draft the United Nations Charter, which the Allied foreign ministers would attend.46 With the White House backing, the War, State, and Justice Departments decided on the 20th to stand firm on the January memorandum at San Francisco and, if the British balked, to approach the Russians separately. They decided also to underscore their stand by beginning to set up the US element of the court. McCloy suggested several candidates to head the prosecution for the United States, among them Supreme Court Associate Justice Robert H. Jackson. On 2 May, Mr. Truman made public Justice Jackson's appointment as Representative of the United States and Chief Counsel for the Prosecution of War Crimes. The trial procedure, the President added, "Will be expeditious . . . but one which is in keeping with our tradition of fairness towards those accused of crime." 47 In San Francisco the next day, Judge Rosenman explained the American proposal to the British and Soviet delegations. To the surprise of McCloy and Colonel Cutter, who were also present, and of Judge Rosenman himself, Foreign Secretary Anthony Eden said the British position had recently changed. The War Cabinet, Eden added, still saw objections to a formal trial for the most notorious Nazis, but if the United States and the Soviet Union wanted such a trial it was willing to bow to them in the matter.48

After Justice Jackson's appointment, War Department concern with the major war criminals rapidly became peripheral. Justice Jackson, as the President's personal representative, carried out the lengthy negotiations after San Francisco. On Secretary Stimson's orders, McCloy set up in his own office, separate from the Army Staff, the Office of the Chief Counsel. Its main functions were to give Jackson administrative assistance and help him assemble a staff. McCloy kept in touch with the negotiations through the summer, but by then he had less to do with influencing the Allies

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than with smoothing the way for Justice Jackson with the US occupation authorities in Germany, who were not inclined to welcome independent agencies into their bailiwick.49

While the trial of the major criminals was no longer a direct Army concern, the apprehension and eventual trial of offenders against specific laws and usages of war still were Army responsibilities, as would be the members of organizations found guilty under the conspiracy charges. The number of cases in these categories was bound to be vastly larger than at the top; yet, in early 1945, almost no machinery existed for dealing with them. SHAEF and the army groups were engrossed in the final drive against Germany, and it was the last week of February before Headquarters, ETOUSA, set up under the theater judge advocate a war crimes branch, the War Crimes Group, in accordance with the December 1944 instructions from Washington.

The ETOUSA letter of 24 February announcing the War Crimes Group did, at least, envision more than just another ineffectual staff agency. The War Crimes Group was to work through the army groups and armies to collect evidence and to "arrange for apprehension and prompt trial of persons against whom a prima facie case is made and for execution of sentences which may be passed." 50 Plans called for nineteen war crimes investigating teams, each consisting of four or five officers, including a legal examiner, and five enlisted men, a court reporter, a photographer, and interpreters. Their mission would be to follow up reported crimes and prepare cases, without as yet proceeding to the trial stage.51

The beginning had been made, but it was only that. The war was moving at full speed, and the expert personnel that the War Crimes Group needed was next to impossible to find. The number of courts-martial was at its wartime high, and men with legal training, particularly court reporters, were in short supply; and a check turned up only five pathologists in the entire European theater.52 Consequently, the investigating teams materialized slowly. Only seven were organized before the war ended. The intelligence agencies, charged with locating and detaining suspects, were engaged in innumerable higher priority enterprises. Commands changed; units moved ; and in the shuffle even suspects in custody were lost or forgotten. To become lost among the faceless thousands in the prisoner of war and detention camps was not difficult. The turmoil and confusion at the end of a war was just not conducive to orderly legal processes. In the second week of March, SHAEF added to the confusion and to the potential work load of the War Crimes Group by ordering the automatic arrest of entire categories of Germans : the Gestapo, the Sicherheitsdienst (SS intelligence) , SS officers and senior noncommissioned officers, all members of the SS Totenkopfverbaende (concentration camp guards) , Nazi party officials down to Ortsgruppenleiter (Local Group Leader) , Hitler youth officials, and sundry others including all female members of the

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SS. 53 The individual offender became almost too rare to waste time on.
In large part, as late as the end of February 1945, the extent of the war crimes problem was still unappreciated. At first the War Crimes Group was thought of as being directly concerned only with acts against US troops and US nationals. The great majority of the crimes, presumably, were those the Germans had committed on occupied territory, and they would eventually be the concerns of the restored governments. What had been and would be going on in Germany was not yet actually seen, and the overdone World War I atrocity propaganda had left an enduring legacy of skepticism on the subject.

Consequently, the true criminality of the Nazi regime, for all that had been said about it, was an enormous shock and surprise when it was uncovered in the last two months of the war and the doubts evaporated. Combat Photographers recorded countless atrocity scenes in still and motion pictures, but no war crimes personnel were there to document the crimes. Unfortunately, having evidence of the crimes on film was a far cry from being able to identify and convict the criminals.

In magnitude the German crimes vastly overshadowed crimes committed in Germany by US troops, but they did not completely obscure them. Looting was so widespread as to be regarded as a soldierly sport. The USFET General Board cautioned that its study of war crimes issued in the spring of 1946 should not be construed to imply "that conduct among American troops was always beyond reproach." Aside from looting, the board was aware of "substantial charges" of mistreatment of prisoners of war, including one general court-martial proceeding against Americans accused of murdering prisoners of war. In the latter instance, the evidence had been held insufficient to sustain a conviction without, in the board's opinion, leaving any assurance that the accused were innocent.54 Of the crimes committed by US troops, the best-though by no means most accurately-documented was rape, and it showed a "spiral increase" in the closing months of the war. Between July 1942 and October 1945, 904 rape cases were charged in the European theater, 552 of them in Germany. All told, 487 soldiers were tried for rapes allegedly committed in the months of March and April 1945. By no means all the incidents were reported or, of those reported, brought to trial, and the conviction rate was relatively low. The Judge Advocate, Seventh Army, referred 84 cases to trial in April and May 1945. More than half, 47, were tried, resulting in 24 acquittals and 23 convictions. Tolerance on the part of the courts was probably less a factor than the weight of the penalties and the difficulties of proof. The convictions in Seventh Army resulted in eleven death sentences, seven life sentences, and several for twenty and fifteen years. The legal requirement, a manifest lack of consent by the victim, was missing in so many cases that at last some courts began to hold that "a man who enters a strange house, carrying a rifle in one hand, is not justified in believing he has accomplished a seduction." 55 If not all the crimes or even a large percentage were

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punished, some were, and these severely. Moreover, as the General Board later pointed out, there was a difference between the individual offenses of the US troops and the systematic, officially sponsored Nazi criminality.56

In the last weeks of the war, influenced by what was being seen in Germany, the war crimes program gathered momentum. In April, the armies began setting up war crimes branches and sending out field investigating officers with clerks and interpreters to gather evidence at the scenes of crimes as they were uncovered. Suspects could not yet be segregated, but three prisoner of war enclosures in the Normandy Base Section, Communications Zone, were set apart where they and unfriendly witnesses could be congregated.57 At Spa, Belgium, SHAEF opened ASHCAN, a holding and interrogation center for top Nazis and military officers.58 At its rear headquarters in Versailles, SHAEF set up the Central Registry of War Criminals and Security Suspects (CROWCASS). CROWCASS was to maintain wanted lists, particularly of persons who might be turned up in prisoner of war camps. In three weeks the registry accumulated 70,000 names.59

* * *

[David Thompson]

Part 3 (final part):

pp. 390-95

War Crimes Trials

The war crimes trials that were to be conducted under Army auspices in Germany and would last for four years began

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in early April 1945 in the small Rhineland city of Duren, twenty miles east of Aachen.56 There, on 7 April, a First Army military commission convicted a German officer, Capt. Curt Bruns, of having caused the murder of two American prisoners of war during the Battle of the Bulge. The Bruns case was entirely within the traditional concept of war crimes as specific acts against the laws and usages of war committed by soldiers during hostilities.

The second case tried under the US occupation brought in another category of defendants. On 15 August 1944, an American pilot had bailed out over the village of Preist in the Rhineland. A rural policeman went to the spot where the airman landed to take him into custody. When the policeman arrived, two German soldiers home on furlough were helping the pilot out of his parachute harness. Before they had finished, Peter Back, a local Nazi Blockleiler, and a crowd of other civilians appeared on the scene. Back was carrying a pistol which he fired at the American, wounding him. The German soldiers protested, but Back ordered them to stand aside and shot the prisoner a second time. Back then called on the crowd to take revenge for a recent air raid on a nearby town, and two persons beat the dying pilot, one with a hammer, the other with a club. The policeman did not attempt to prevent the attacks. Military commissions sitting at Ahrweiler tried the policeman and two civilians on 1 June 1945 and tried Back after he was captured two weeks later. Back and the two civilians received death sentences and the policeman life imprisonment. Similar cases in which downed US airmen were the victims would make up the largest single category of trials involving crimes against Americans. By the end of summer 1945, war crimes investigating teams collected evidence in 800 such cases; the great majority charged to civilians or the police, very few to soldiers.57

The Back case was already extending the scope of war crimes to include nonmilitary acts committed away from the battlefield, when on 2 June Eisenhower asked the Combined Chiefs of Staff ( CCS ) to approve also the prosecution of concentration camp commandants and guards as war criminals. The Moscow Declaration, he pointed out, provided for returning Germans for trial and punishment to the countries in which their "abominable deeds" were done but said nothing about the crimes committed against United Nations citizens inside Germany. Swift punishment of these crimes, he believed, would have "a salutory effect on public opinion both in Germany and in Allied countries." 58 In reply, the CCS lifted all "previous restriction" on war crimes trials, "whether the offenses were committed before or after occupation . . . and regardless of the nationality of the victim." 59

Although CCS lifted the restrictions on trials, many questions concerning the kinds of crimes to be tried remained undecided. The decisions were made before the end of 1945, but all the cases completed or

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brought to trial in 1945 or the first months of 1946 fell within three categories: battlefield crimes, offenses against Americans no matter where they were committed, and crimes relating to concentration camps and similar institutions. The concentration camp atrocities were later treated as crimes against humanity, but at this time they were among those not fully defined. Consequently, the early cases were treated as conspiracies to commit offenses against the United Nations troops and citizens, and were hence war crimes.

The authority to try war criminals, however, did not automatically imply the ability to bring them to trial. Evidence had to be collected and suspects and witnesses taken into custody were scattered in camps all over Germany and in the liberated countries. The CROWCASS list of suspects, growing by the hundreds every day, would eventually reach 150,000 and take months just to put into usable form. The War Crimes Group in Paris was virtually out of the picture until July when it moved to Wiesbaden, and the war crimes branches of the armies, like military government locked into the tactical command channels, were out of touch with the war crimes group and with each other. Of the five armies, only two were going to be around long enough to contemplate staging more than a few trials.

After moving into the zone, Third and Seventh Armies began sorting out and segregating the suspects and hostile witnesses. Before they were through, they would have 15,000 altogether, not including the thousands more in internment and prisoner of war camps who might be charged as members of criminal organizations. Third Army lodged its share in the Dachau concentration camp, and Seventh Army put its share into Civilian Internment Enclosure No. 78 near Ludwigsburg.60 Civilian suspects were usually fairly easy to identify by questioning witnesses at the scene, but soldiers, witnesses as well as perpetrators, had to be hunted among the anonymous millions in the prisoner of war cages, where they were likely to be found if they were not dead or prisoners of the Russians. Many, no doubt, were never found. Where names were known, the search was often surprisingly difficult. Where little more than the existence of the crime was known, the difficulties multiplied. One such instance was the Seventh Army's hunt for the SS men who had shot and killed 120 American prisoners of war in a field near Malmedy, Belgium, on 17 December 1944. The first step was to screen all the SS prisoners and identify those who had been members of the several elements of the 1st SS Panzer Division. This job alone would probably have been impossible if the suspects had been in the army rather than in the less numerous SS. Over several months, Seventh Army brought nearly a thousand SS men to Prison No. 1, an annex to Civilian Internment Enclosure No. 78. Among them were 400 men who had belonged to Combat Group Peiper, the unit in whose sector the massacre had occurred. These were kept isolated, totally out of communication with each other; the rest were returned to prisoner of war camps. Then began the long wait for uncertainty and isolation to take effect. Now and then, at intervals of weeks, a man would be convinced that somebody else had talked or would give himself away. Seventh Army had thought the case would be closed before the end of 1945. In March 1946, when

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Headquarters, Seventh Army, left the theater, the search was still on and the suspects were transferred to Dachau, where the trial was not finished until October 1947.61

The Hadamar Hospital case in which German medical personnel were charged with having killed 45 Poles and Russians by injections, began on 8 October at the War Crimes Group headquarters in Wiesbaden, thus beginning the cases involving concentration camp and other mass atrocities. During the next month, Seventh Army began its trials at Ludwigsburg, and Third Army courts at Dachau began what was going to be a three-year session during which they would hear 489 cases against 1,672 accused and pass 297 death sentences.62 The Hadamar case was tried under a military commission. All the subsequent cases were tried by special military government courts that had nothing to do with current offenses against the occupation, dealt exclusively with war crimes, and were more like military commissions than like regular military government courts. Procedurally, however, the distinction was significant. Military commissions operated under the elaborate regulations for courts martial. The regulations for military government courts, on the other hand, specified

. . . rules may be modified to the extent that certain steps in the trial may be omitted or abbreviated so long as no rights granted to the accused are disregarded. Opening statements in particular may frequently be omitted. No greater formality than is consistent with a complete and fair hearing is desirable and the introduction of procedural formalities from the Manual of Courts Martial or from trial guides based thereon is discouraged except where specifically required by these rules.

The military government courts, moreover, were held to have extensive powers where war crimes were concerned, "because a state adhering to the law of war as a part of international law is interested in the preservation and envorcement of it irrespective of when or where the crime was committed, the belligerency or non-belligerency status of the punishing power, or the nationality of the victims." 63 With such streamlined procedures and extensive powers and the principle of common design, the Dachau concentration camp case, involving forty persons implicated in thousands of murders, was begun on 16 November 1945 and completed in four weeks.

While the early cases were being prepared and brought to trial, the categories of criminality were also being vastly expanded. In the London Agreement of 8 August 1945 (the charter for the International Military Tribunal), Justice Jackson and his British, French, and Soviet colleagues recognized four categories of crimes: war crimes, crimes against peace, crimes against humanity, and membership in groups which the International Military Tribunal might find to be criminal. Taken together, these categories made punishable the conduct of the war itself, all Nazi atrocities committed anywhere at any time, and mere membership in certain Nazi organizations such as the SS and the Gestapo.

The International Military Tribunal opened its trials of twenty-two major criminals and seven Nazi organizations on 20 November. After reconnaissance of Mu-

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nich, Heidelberg, and Nuremberg, SHAEF had selected Nuremberg several months earlier as the "best choice from the historical and accommodations points of view." 64 Third Army provided the Headquarters Command, International Military Tribunal, which took charge of the prisoners, supplied guards for the court, and furnished billeting, messing, and transportation for court personnel and correspondents. USFET supplied press, radio, and motion picture facilities and communications to meet justice Jackson's requirement for "getting speedily and clearly to the world the record of evidence developed there." 65

Before the international trials began, JCS 1023/10, dated 8 July 1945 but apparently not issued until September, assigned to USFET, the responsibility for trying lesser offenders (all those not tried at Nuremburg) in all four categories of the London Agreement for crimes, committed since 30 January 1933, including racial and religious persecution.66 In December, Control Council Law No. 10 made the London Agreement's provisions the uniform legal basis for prosecution of war criminals and similar offenders in the four zones and authorized the zone authorities also to try any major criminals not brought before the bar at Nuremberg. 67

JCS 1023/10, in particular, and Control Council Law No. 10 laid a potentially mountainous new case load on the War Crimes Group. To investigate atrocities and crimes against humanity back to 30 January 1933 alone would probably have required a new organizational effort as least as extensive as that applied to war crimes since 1944; and trying the members of criminal organizations evoked a statistical nightmare. The Theater Judge Advocate, using 100,000 as the approximate number of persons in internment camps and assuming a three judge panel would take only one hour to try each person, figured that trying all the cases would take 375 judges four months. The OMGUS Denazification Policy Board, taking into account the SS, most of whom were held as prisoners of war, and the SA, the party storm troopers of whom only the leadership had so far been arrested, pointed out that the number to be tried might well be 500,000 rather than 100,000.68

After two months of often agonizing study in all offices concerned, talks in early December between USFET representatives and the Office, Chief of Counsel for the

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Prosecution of Axis Criminality (Justice Jackson's office), resulted in one conclusion, namely, "that literal compliance with JCS 1023/10 is in practice out of the question." They therefore produced a plan for compliance as far as it was feasible. The USFET War Crimes Group would retain responsibility for the kinds of trials it was conducting, that is, war crimes and concentration camps. The other atrocities since 30 January 1933 would be turned over to German courts as a "test of German regeneration." Jackson's office would prepare and, after the international trials, conduct the cases against the major offenders whom the International Military Tribunal did not try and against the members of criminal organizations.69 Although the division of responsibility reduced the Army's direct share to a fraction of what it might have been under JCS 1023/10, it was still large and would in the end constitute the majority of the cases actually tried. As of January 1946, the War Crimes Group had referred 81 cases to trial and had 2,438 war crimes and 131 mass atrocity (concentration camp) cases on the docket. 70

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