The vigorous Moscow Statement by President Roosevelt, Prime Minister Churchill, and Premier Stalin on atrocities has been widely discussed and debated. Few people question the right of the United Nations to bring the war criminals to trial and to punish them. But many problems will arise when this difficult job is begun.
What is a war crime and who are the war criminals? In what courts shall the accused be tried? By what laws? What punishments shall be meted out to them?
To each of these and related questions there are many possible answers. And, if we may judge by the experience of the first World War, there may not be entire agreement among the people of the United Nations. The following discussion, therefore, is an attempt to explore but not prejudge the problems that will come up in trying to deal with the war criminals and in bringing them to the bar of justice.
Let us assume that the armies of the United Nations, having crushed enemy resistance, have marched into Germany, Japan, and other Axis countries. They have taken into custody all the enemy leaders, both political and military, on whom they can lay their hands. These may include Hitler, Goering, Goebbels, Tojo, Mussolini, the general staffs of the German and Japanese armies together with the naval leaders, and the Gestapo chiefs. The catch will include the local quislings and others who have committed, or ordered committed, the inhuman crimes we have all read about. What shall be done with them? How shall we do justice and yet not make martyrs of them?
Many people have a ready answer—“Shoot ’em or string ’em up!” But this kind of action is not consistent with our aims, nor with those of our Allies. It is true that a victorious power can impose upon a defeated power such terms as it wants to, restrained only by its concern for the judgment of history and its regard for the principles of international law. Looked at in this way, the problem of what to do with Axis war criminals is essentially a problem of policy and expediency rather than of legal technicality. But the United Nations are determined to restore law and order and a civilized way of life to lands now under Axis tyranny. By shooting or hanging even the most notorious of war criminals without legal trial, we and our Allies would be charged with sinking to the barbaric level of our enemies.
In civilized countries even a killer caught with a smoking gun in his hand is entitled to a fair trial. The laws and customs to which all civilized states adhere require that man who commits a crime be tried in an orderly legal way and given an opportunity to defend himself.