(to be continued)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
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
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
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
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