Determining how, and where, and by what laws to try the war offenders represents one group of problems. Getting hold of the accused is another.

In the Armistice that concluded the last World War, the Allies agreed not to prosecute the war criminals found in occupied Germany until the peace treaty came into force. This proved to be a mistake which probably will not be repeated. The known malefactors this time will doubtless be seized promptly and put on trial without delay.

War criminals caught by United Nations forces on non-German soil will, under the Moscow Statement of November 1, 1943, be held for international prosecution or turned over for trial to the authorities of those countries where their atrocities were committed. In this connection the United Nations should have little difficulty in exchanging offenders among each other. The tedious technical process of extradition will not be necessary if a satisfactory agreement is made beforehand.

So also, the offenders taken inside Germany will be turned over, perhaps, as part of the surrender terms, to the proper national tribunals or detained for trial jointly by the United Nations.

The Right to Give Asylum

One of the most perplexing tasks in rounding up the accused after the war will be to get hold of those major offenders who will have fled—by plane, submarine, ship, or otherwise—to some neutral country, where they will do everything, possible to resist extradition. We can be sure that many Japanese and Nazi chieftains have deposited vast sums of money in neutral countries with which they could hire expensive counsel and attempt to bribe officials, hoping, like the Kaiser, to live out their days in peace and plenty.

To prevent this very occurrence, President Roosevelt on July 3, 1943 warned all the neutral nations that: “One day Hitler and his gang and Tojo and his gang will be trying to escape from their countries. I find it difficult to believe that any neutral country would give asylum to or extend protection to any of them. I can only say that ... the United States Government hopes that no neutral government will permit its territory to be used as a place of refuge or otherwise assist such persons in any effort to escape their just deserts.”

This warning was supported by Great Britain and a similar note was sent by the Soviet Union to Turkey and Sweden.

By the summer of 1944 few neutrals remained—those still so considered were Argentina, Eire, Portugal, Spain, Switzerland, Sweden, Turkey, and the Vatican City. The government of Switzerland took notice of President Roosevelt’s warning with the remark that it would “obviously exercise its rights of asylum in a manner to assure fully the sovereignty and highest interests of the country.” The Argentine government noted that asylum “can be granted only for political motives or crimes,” and that only the government granting asylum can determine what is or is not a political offense.

Plugging Up the Loopholes

In view of Switzerland’s and Argentina’s responses, it is reasonable to expect some difficulties in getting war criminals extradited from neutral countries. The Kaiser avoided trial because Holland regarded him as a political refugee, not a war criminal.

The loopholes in existing extradition treaties might, therefore, be plugged up beforehand, as the London Commission on War Criminals (of the International Assembly, League of Nations Union) has suggested: “A separate and temporary agreement [should be made by the United Nations] with the neutral countries, concerning only war criminals. Without modifying anything in the existing extradition treaties, those countries should, during a limited period, after the war, be asked to undertake to deliver to the United Nations all persons accused of such war crimes. The list of those crimes should of course be drafted, and a new word, such as ‘delivery,’ should be used in this respect to avoid confusion with ordinary extradition. In the agreement it should be specified ... that the traditional custom of refusing extradition when the crime was of a political nature does not apply to delivery; that delivery will take place even if exemption from punishment has been acquired by lapse of time; that the circumstance that the crime for which delivery is demanded is punishable by death shall not be a reason for refusing it; that the circumstance that the accused alleges to have committed the crime by order of his superior will not be a reason for refusing delivery.”

It remains to be seen, first, whether the neutral countries who are proud of their ancient rights of asylum—like Switzerland—will sign such an agreement as the commission proposed, and second, whether, if the agreements are signed, we can get hold of the wily war criminals, who will scurry to all ends of the earth and use all their cunning to avoid falling into the United Nations hands. An influential Swiss newspaper recently said, while taking the stand that “granting sanctuary” is Switzerland’s own business, “Let us hope that no one in Switzerland will be in favor of sanctuary being granted to those having to answer for war crimes.” And a Swedish newspaper wrote in 1943 that “If pyromaniacs, murderers, and thieves succeed in coming to power in a country, they cannot escape punishment by crossing the frontier into another country when their time is up.”

Meanwhile it is widely recognized that no time should be lost by all the United Nations in preparing lists of accused malefactors and collecting evidence, as the Soviet, Polish, Norwegian, and other governments are doing. In order to close the avenues of escape, public opinion in neutral countries could be prepared to accept the demands that will be placed upon them after the war if the accused seek sanctuary on their soil. The peoples who have suffered from the Axis atrocities may not be willing to let the offenders live serenely and happily on neutral ground and die peacefully of old age as the ex-Kaiser did in his castle at Doom.

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