That is the signal for Washington: Chief Justice [of the Supreme Court of the United States] Robert H. Jackson is obsessed with the plan to stage a trial of such magnitude as world history has never before seen. Just as the Second World War burst previously existing boundaries and dimensions, so should it end with a legal extravaganza, with a world court such as had never been staged.
Jackson wants to play the role of a lifetime in it as the American lead prosecutor. As President Truman’s special commissioner he agitates his way through the continents, promoting his plan for prosecution. In Washington meanwhile the legal snares are being crafted from which no prominent German was supposed to escape. There in the White House Commission Judge Samuel Rosenman examines the legal prerequisites for a trial, aided by Secretary of State Stimson, the Army’s advocate-general Bernays, Attorney-General Biddle, and his assistant Herbert Wechsler.
Rosenman’s jurists are in no way inhibited by the most obvious objection: that one could not be simultaneously accuser and judge, that it would contradict all American principles of justice if the victors were suppose to act as judges in their own case.
The planned world court could retain the majesty of justice in the eyes of the present and future only if the case of the conquered would be heard not before their enemies but before neutral judges. At least four old cultured states with highly developed jurisprudence were available for this assignment: Switzerland, Spain, Sweden, and Portugal. It seemed to be a pivotal moment in the Law of Nations. Have not states that shirk such an opportunity already thereby proven that they wanted vengeance rather than justice?
With a pretext that could not be more questionable, the later American prosecutor, Brigadier-General Telford Taylor, torpedoes this plan. Such a proposal was “unrealistic,” he opined, “because the number of genuinely neutral countries was so small that this solution would have proven thoroughly unworkable.”
As if it were a question of number, notwithstanding the fact that the requisite number of judges could have been supplied by the neutral states without further ado. The fact that no credible reason for the refusal could be found proves unambiguously that there were other reasons why a genuinely neutral and thus legitimate court would not be allowed. Would not an objective court deserving of the name necessarily have brought the accusations that could be made against German officers and politicians also against American, English, French, and especially Russian war-criminals, if they had committed the same crimes? From that one should not be allowed to exempt oneself!
It would have been most simple if every state had judged its own war-criminals according to its own applicable laws, if a “tabula rasa” was not wanted.
The later denazification demonstrated sufficiently that the Germans were ready to fulfill in an exemplary manner all demands of their occupying powers even in this case. The International Military Tribunal at Nuremberg, in order to maintain the appearance of objectivity, acquitted Hans Fritzsche, the director of Goebbels’ ministry, Hitler’s vice-chancellor Franz von Papen, and Hitler’s president of the Reichsbank and economic minister, Dr. Schacht. It became immediately apparent that the victors could have trusted their Germans: Attorney-General and Chief of Denazification Dr. Dehler solicited additional denunciations from the public so as to be able to prosecute Fritzsche. A prosecutor named Bernhard Mueller lamented before the Nuremberg Denazification Court that he could not demand the death-penalty; Fritzsche was sentenced to ten years in a KZ or labor-camp.
The Bavarian Premier of the time, Dr. Hoegner, immediately decreed house-arrest for Franz von Papen until the court sentenced him to eight years of KZ or labor-camp. Dr. Schacht was arrested again a few days after his release from Nuremberg and sentenced by the [Stuttgart] Denazification Court to eight years of KZ or labor-camp. The Allies’ distrust of German post-war justice was thus thoroughly without cause.
After two months of hectic activity Truman’s prosecutor Jackson is on target. On 26 June 1945 the representatives of the four victorious powers meet in London to agree on the basic principles for the planned mammoth process. Although one wants – as formerly in the League of Nations – precisely to do away with secret diplomacy, these deliberations are conducted behind closed doors; their outcome must remain strictly secret. For four years the content of these discussions was to be withheld from the global public. When finally it was deemed no longer dangerous to air this secret, the peoples of the world learn for the first time that there was an intention, already in preparing the tribunal’s charter and procedure, to violate all principles of justice that the cultured peoples had developed in a millennium of constant struggle.
There are four conflicts above all that must be concealed, because they deprive the tribunal of legitimacy from the start:
1. How should the court conduct itself if the German defense brings up the fact that other countries also conducted wars of aggression and committed war-crimes?
2 How can men who have committed no crimes be charged and condemned anyway?
3 Could not the politicians of the countries that now are supposed to sit in judgment themselves be held responsible under the same law at some future time?
4 What about the air-attacks on residential areas and the civilian population?
Ultimately, through sophistic manipulations, Jackson succeeds in calming these concerns. He wants to have a tribunal no matter what. Even such justified concerns as those of the British delegate and later English chief prosecutor David Maxwell Fyfe are dispelled. Sir David fears, for example, that the Germans could counter the charges relating to the occupation of Norway with the fact that Hitler had only narrowly prevented Britain’s [soon-to-be] wartime prime minister Churchill from occupying Norway himself.
The Western prosecution-experts must ultimately suppress such concerns, if even their Soviet colleagues, despite being guilty of all the accusations that could be made against the Germans, are now finally ready to take all the risks of such a tribunal.
They dare it because they have unique experience with tribunals of this kind. If judges of the most brutal tyranny of all times are determined to portray themselves as fanatics for justice toward the Germans, if the aggressors against Finland, the Baltic States, Poland, Romania, and Japan dare to officiate as prosecutors against German peace-breakers, if jurists of the state that originated from and can continue exist only through crimes against humanity, now pose as advocates for humanity – then the Western jurists would have to suppress their scruples too.
. The attorney Dr. Thomas Dehler was a Freemason married to a Jewish woman. He lived in Germany throughout the period of National-Socialist rule and, as one might expect, had some friction with that government, finally leading to his expulsion from the Wehrmacht and a sentence of forced labor in 1944.
. The Associated Press on 31 January 1947 reported Fritzsche’s sentence as nine years of hard labor.
. Wilhelm Hoegner was a Social-Democrat installed as Premier of Bavaria in 1945 by Eisenhower, replacing the more conservative Fritz Schaeffer, who had been installed by Patton.
. Haertle misidentifies the location of the tribunal that sentenced Schacht to eight years of labor-camp as Nuremberg in Bavaria. According to the Glasgow Herald, 14 May 1947, it was Stuttgart in Baden-Wuerttemberg. The fact that Schacht received any punishment at all after the war seems to be widely overlooked, giving rise to conspiracy-theories about Schacht as a banker.
. Churchill’s position was not yet Prime Minister, but First Lord of the Admiralty, when his plan to invade Norway failed.