While most war criminals will end up in the toils of local law enforcement agencies, certain offenders and offenses call for trial by an international tribunal. The Moscow agreement evidently recognized this, for it affirmed that the declaration did not apply to “German criminals, whose offenses have no particular geographical localization and who will be punished by joint decision of the Allies.” It may reasonably be assumed that the offenders covered by this provision are those responsible for the wholesale atrocities, such as Hitler, Tojo, members of their general staffs, political leaders, the Gestapo, fascist militia, and others. Their crimes have been carried out on an international scale and affect the interests of all civilized peoples in the maintenance of law and order on an international plane.

United action in these cases could be taken by a joint or mixed military tribunal, as provided in Article 229 of the Versailles Treaty, or by a new international criminal court.

To avoid confusion, the joint military tribunal, it has been suggested, might follow the procedure of the prosecuting state, that is, the state that took the initiative in filing charges against the individual. Its military law, whether English, American, Belgian, Chinese, Russian, Polish, or other, could be enforced by the joint court. The choice of the prosecuting state might be by agreement among the United Nations, depending upon such factors as which had suffered the greatest injury from the crime, whose law and procedure is the easiest to apply, and the like. The case might well be entitled The United Nations ex rel. The United Kingdom v. Adolf Hitler; or The United Nations ex rel. The United States of America v. Hideki Tojo.

If a true international criminal court is set up, it would embrace practically all the nations of the world. Thus it would be the agent of civilized humanity in general and would mainly apply the law of nations. How would it proceed? An international criminal court could apply (1) a, penal code covering crimes against the family of nations, or (2) the common law of nations supplemented by the Hague and Geneva conventions referred to on page 5 and the principles underlying and common to most civilized systems of penal law.

Since the first code-does not yet exist, the question arises whether such a court could lawfully carry on its work. Although some authorities do not think that it could, it seems, to others, legitimate to conclude that if the United Nations (and other states who may wish to join) enter into an agreement to establish an international court, they could assign to it their recognized individual powers to try war offenders, and the court would be enforcing law commonly recognized. This court could, therefore, begin to function without the prior enactment of an international penal code. But some guidance would nevertheless have to be given the court—as was done in the case of the World Court established at the Hague after the last World War—as to the sources of the law it would apply. It might derive its law from (1) international conventions, expressly recognized by the nations involved; (2) international custom as evidence of a general practice accepted as law; (3) the general principles of law (particularly criminal law) recognized by civilized nations; and (4) judicial decisions and the teaching of the best authorities of the various nations.

These sources of law would take account of legitimate defenses and mitigating circumstances, such as insanity, self-defense, killing by order of an official or a court, killing in lawful battle, and the like. Punishment would be meted out according to the seriousness of the crime; as under civilized law—that is, murder would be punishable by death or life imprisonment, other crimes by terms of years. There would be lesser penalties, doubtless, such as fines or loss of civil rights. Practically all legal systems include elements of fair play which would guarantee the accused adequate counsel and a chance to be heard in self-defense.

It is reasonable to conclude, then, that a detailed international penal code would not have to be enacted by agreement of all the civilized nations of the world before the international tribunal goes to work. Such a code would be, in essence, only declaratory of legal principles already in existence.

How Would This Court Be Staffed?

The chief statesmen of the United Nations might nominate the judges from among those jurists who are acknowledged authorities on criminal law. The prosecuting staff, as well as public defenders, might be nominated from panels submitted by the chief executives of the countries establishing the court. Procedure might consist of the best features of Anglo-American and Continental criminal proceedings. Rules of evidence could be simple. Appeal to a higher or appellate branch of the court might be only sparingly provided for in order to avoid unreasonable manipulation of the processes of justice. This sketch of the manner in which the war criminals might be tried by the United Nations leaves some basic legal questions unanswered: Can an accused member of the Axis nations plead that he was following the orders of a superior when he committed an atrocity? And are chiefs of state liable to prosecution in foreign courts for their crimes?

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