Many people believe that the United Nations, either individually or jointly, should dispose of all Axis war criminals by shooting or hanging. A little reflection, however, shows that this solution of the problem, though simple, might be contrary to the best interests of the peoples who have suffered from the Axis cruelties. Apart from this, the question has been raised whether capital punishment for most of the guilty is in harmony with scientific criminology and penology.

In the United States we regard every offender as an individual. His assets and liabilities are studied and a program is planned to make the most of his abilities, develop new ones, curb his bad habits, and gradually restore him to a useful and law-abiding place in society. Should this policy be followed for the war criminals?

This is a difficult question to answer. For ordinary offenders, society can afford to experiment with the humane approach, and the public, even the victims and their families, can be made to agree to a policy of rehabilitation. In the case of war offenders of the Axis type, who have, committed thousands of shocking atrocities, measures of cure and rehabilitation of the individual offender according to his needs would be interpreted (especially by the surviving victims of Axis brutality) as undeserved leniency. In the end, doubtless, the laws of every country where the war criminals are tried will determine the type of punishment.

If the chiefs of state and their henchmen are tried by an international criminal court, it should be remembered that such an organ of justice does not have its own prison establishment or psychiatric and reformatory institutions. It would have to create its own bureau of punishment and correction; make arrangements for housing, feeding, and giving work to prisoners; keep track of their progress; and consider applications for parole.

If the feelings of the occupied countries are taken into account, however, death would be the punishment for all the leading Nazi and Japanese offenders. This would of course solve the problem of providing prisons and other places of detention. On the other hand, it is argued by some that, for political and economic reasons and to avoid creating “martyrs,” it might be wiser to impose sentences of death on certain leaders and then commute them to prison terms at hard labor for life, perhaps on lonely islands in distant seas, whence escape would be impossible. The example of Napoleon banished to the island of St. Helena is mentioned as a precedent.

In the case of many prominent Axis criminals it is perhaps useless to attempt correction and rehabilitation. They could be studied by psychiatric clinics, however, so that we might learn what made these men defy the laws of civilization and lead millions of their fellow countrymen to an orgy of death and destruction. We might learn a great deal about international gangsterism if we knew what made these men tick.

For the younger offenders reeducation and rehabilitation might be prescribed with a view to helping them to shed the horrible Nazi and Japanese doctrines and gradually become good citizens.

It is generally agreed that the United Nations should force Germany, Japan, and their satellites to pay the expenses of the trials and the cost of detaining, correcting, and rehabilitating the war criminals. Before the war ends the United Nations Commission on War Criminals will probably work out policy agreements among the governments concerned for (1) the classification of offenders; (2) the use of penal and correctional facilities by the proposed international court; (3) employment of prison labor in the devastated areas; and (4) other measures that will be necessary for carrying out the verdicts of courts of law.

From EM 11: What Shall Be Done with the War Criminals? (1944)