Justice and the Enemy

In the summer of 1980, I was taken by officials of the Cambodian government to see such graves.^a These were a few miles outside the capital, Phnom Penh, and they contained the bodies of thousands of Cambodians who had recently been murdered by their Communist Khmer Rouge rulers.

The Khmer Rouge had been in power between April 1975 and December 1978. They had imposed a form of Maoist autarchy on the country and attempted to return it to what they called Year Zero, an agricultural society supposedly cleansed of all bourgeois and foreign influences. The human costs had been appalling—between one and two million people were thought to have died or been murdered. The Khmer Rouge leadership also made the fatal mistake of attacking their Communist neighbor, Vietnam, and at the end of 1978 the Vietnamese invaded to rid themselves of their troublesome former ally.

Some miles outside of the town, my guide and I were driven to a village where laughing children led us to a shocking exhibition. About six pits had been excavated; there were, villagers said, many more. Hundreds of skulls were piled together and limbs were in other piles. Many of the wrists were still tied together with cord or wire—the victims had been forced to kneel on the edge of the pits while Khmer Rouge soldiers clubbed them in the back of the head or shot them. Blindfolds still covered many skulls.

These murders had taken place at the end of 1978 as the Vietnamese armies swept in to overthrow the Khmer Rouge and install another Communist regime more to their liking. Flesh still clung to the hip joints and its terrible sweet rancid smell hung over the fields.

I had been conscious of such horrors since childhood but I had never before seen them with my own eyes. As a child, I listened to fragile 78 rpm records of my father, Hartley Shawcross, the chief British prosecutor at the Nuremberg Tribunal, speaking with gravity and scarcely-controlled emotion to the court.

These words and images came from the diary of a German engineer, Herman Graebe, the manager of a German building firm in the Ukraine. They were part of the evidence produced by the prosecution at Nuremberg. Eventually I realized that rather than witnessing these terrible mass murders himself, my father had helped to bring the leaders of Nazi Germany to justice on behalf of the victims at Dubno and millions of others.

The men in the dock at Nuremberg were architects of a monstrous regime that almost engulfed the world. However, the evil they embodied did not die with them, and can be witnessed time and time again through the horrors of Cambodia and the attacks of September 11, 2001. But the story of Nuremberg shows how difficult it always is to treat properly those who commit hideous and unprecedented crimes.

There was much support for such summary justice at that time. The Russians, unsurprisingly, were in favor; the British were equivocal. Anthony Eden, the British foreign secretary, insisted that all legal forms should be observed, though it is not clear quite what he meant.

When Roosevelt, Churchill, and Stalin met for the first time in Tehran in late November 1943, they discussed the fate of the Nazi leaders at the end of a well-lubricated dinner. Stalin proposed a toast "to the justice of the firing squad" for fifty thousand leading German criminals. Churchill demurred and Roosevelt, in an apparent attempt to lighten the conversation, suggested that perhaps forty-nine thousand would be adequate. In his memoirs, Churchill recalled that he had told Stalin that such mass executions were unacceptable. "'I would rather,' I said, 'be taken out into the garden here and now and be shot myself than sully my own and my country's honour by such infamy.'" ⁴

However, at the time, Churchill did believe that if the top Nazi leaders were captured by the Allies they should be subjected to summary justice. But he was thinking in terms of a handful, not thousands.

American attitudes in the middle of the war years were mixed. Henry Morgenthau Jr., the U.S. secretary of the treasury, persuaded Roosevelt to accept the quick execution of Nazi leaders. More radically, Morgenthau argued for the "re-pastoralization" of Germany so that it would never again become a powerful industrialized nation capable of creating an aggressive war machine, as it had done so swiftly after its defeat in 1918. He considered it "a question of attacking the German mind." ⁵

Morgenthau also proposed deporting millions of Germans: "It seems a terrific task; it seems inhuman; it seems cruel. We didn't ask for this war; we didn't put millions of people through gas chambers. We didn't do any of these things. They have asked for it." ⁶ When officials in his department questioned the wisdom of dismantling German industry, Morgenthau responded sharply, "Why the hell should I care what happens to their people? . . . For the future of my children and my grandchildren, I don't want these beasts to wage war." When his plan was denounced as immoral, he riposted, "I suppose putting a million or two million people in gas chambers is a godlike action." ⁷

There were other American leaders who (at least at times) shared Morgenthau's rage against the Nazis and Germany. In July 1944 (shortly after the D-day landings), Eisenhower expressed a desire to "exterminate all of the General Staff, perhaps some 3,500 people, as well as all of the Gestapo and all Nazi Party members above the rank of Major." He was prepared to allow the Soviets to carry out any such exterminations, except in the case of the Twelfth S.S. Panzer Division, which in June 1944 had killed sixty-four Allied prisoners of war. "I think that the American Army as a unit will handle the Twelfth S.S., every man they can get hold of. They are the men that killed our people in cold blood. . . . We hate everybody that ever wore a Twelfth S.S. uniform." ⁸

As the Allies became increasingly confident they would defeat the Nazis, their attitudes changed. When Morgenthau's ruthless if not unrealistic plans were leaked to the press in September 1944, Roosevelt was embarrassed. He sought advice instead from Henry Stimson, the secretary of war, who argued that America's own respect for due process demanded that war criminals be put on trial. So did Judge Samuel Rosenman, Roosevelt's special legal adviser; and so did Justice Felix Frankfurter of the Supreme Court.

Stimson was particularly influential. Mindful of Stalin's Tehran toast to the shooting of fifty thousand Germans, he feared mass revenge killings would tarnish the whole war effort. Concerned by the specter of mass vengeance against the German people, he suggested instead that the entire Gestapo should be interned and then put on trial "as the main instruments of Hitler's system of terrorism in Europe." The men and women running "the Hitler machine" should be punished, rather than the German people at large. ⁹

In January 1945, the president received a memorandum from Henry Stimson, Edward Stettinius, and Attorney General Francis Biddle proposing the creation of an Allied court to try the Nazi leaders for their "atrocious crimes" and for taking part in a "broad criminal enterprise." Significantly, they argued against civil courts and proposed a military tribunal, as this would be "less likely to give undue weight to technical contentions and legalistic arguments." Roosevelt accepted the proposal and took it with him to the meeting with Stalin and Churchill in Yalta in January 1945. There Stalin agreed that "the grand criminals should be tried before being shot." The British were alone in resisting any sort of trial of the Nazi leaders. ¹⁰

When Roosevelt suddenly died in April 1945, just days before victory in Europe, his successor, Harry Truman, enthusiastically endorsed the concept of a trial. Truman was the last U.S. president not to have a university education, but he was well-read in history. He saw that the trial would not only deliver justice to those Nazi leaders who could be seized, but would also establish a documentary record of all that the regime had done and prevent the rise of a new Napoleonic myth. At that time, it was hoped that Hitler, Goebbels, Himmler, Bormann, and Goering would all be captured and tried.

Churchill's preferred plan was to execute the leading Nazis.¹¹ Just before V.E. Day, the British government submitted an aide mémoire that argued: "HMG assumes that it is beyond question that Hitler and a number of arch-criminals associated with him must, so far as they fall into Allied hands, suffer the penalty of death for their conduct leading up to the war and for the wickedness which they have either themselves perpetrated or have authorized in the conduct of the war." London considered the real charge against Hitler to be "the totality of his offences against the international standard which civilized countries try to observe." Any trial seeking to show the scale of Nazi crimes would be "exceedingly long and elaborate." Moreover, it would be seen by many as a "put up job" designed by the Allies to justify a punishment that had been pre-determined. "Hitler and his advisers—if they decide to take part and to challenge what is alleged—may be expected to be very much alive to any opportunity of turning the tables." ¹²

The British were also concerned about Hitler's pre-war aggression being one of the counts of the indictment in any trial. The belief in London was that Germany's unprovoked attacks on other countries "are not war crimes in the ordinary sense, nor is at all clear that they can properly be described as crimes under international law." The British feared that the defense could easily point to many recent precedents in which various countries had declared war and acquired new territory "which certainly were not regarded at the time as crimes against international law." ¹³

Such arguments were no longer persuasive in Washington. The War Department now proposed that the German leaders be charged not only with specific atrocities but also for their participation in a broad criminal enterprise.

On May 2, 1945, Truman offered Robert Jackson, a distinguished jurist and an associate justice of the Supreme Court, the position of chief prosecutor at the proposed tribunal and, after short reflection, Jackson accepted. It was an inspired choice, even though there were grumblings amongst the highest American legal circles that a justice should not step down into the arena of a trial—indeed Chief Justice Harlan Fiske Stone disapproved so much that he wrote about "Jackson's lynching party in Nuremberg." Stone's objections were to the use (or misuse) of law. "I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding as to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas." ¹⁴

Jackson, on the other hand, had long believed that aggressive war should be declared a crime. He was convinced that the courts had the authority to try those who waged such wars, if only steps were taken to give international law more force. And he also believed that the best should never be the enemy of the good. In 1941 he had argued that "the worst processes of the law" were better than none: "We cannot await a perfect international tribunal or legislature before procribing resort to violence, even in the case of legitimate grievance. We did not await the perfect court before stopping men from settling their differences with brass knuckles." ¹⁵

But Jackson also abhorred the idea of anything that could appear to be a show trial. By coincidence, on the day after Roosevelt died, Jackson made a speech in which he declared that it would be better to shoot the Nazi criminals rather than corrupt the process of law. He made one especially important point that resonates today: "You must put no man on trial under the forms of judicial proceeding, if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict." ¹⁶