Before we can consider how and where to bring the war criminals to justice, and what punishments to administer, we must determine who they are.

Considering the Axis views and conduct of “total war,” war criminals can legitimately be defined, according to some authorities, as persons, regardless of political or military rank, who during the war in their official capacity have committed acts which violated (a) the laws and customs of legitimate warfare or (b) the principles of criminal law that are generally observed in civilized legal systems, or who have ordered, consented to, or conspired in the commission of such acts.

This definition, we must note, does not include three types of crime and criminals which many people associate with war—especially with this war:

First, the crime of violating a solemn treaty signed between nations or of starting a war of aggression. No agreement has been reached among nations, nor rules of law set down, for punishing treaty violators, either in national or international courts—though such rules were recommended to the Preliminary Peace Conference at the close of World War I.

Second, crimes, such as theft, rape, or murder, committed by soldiers, sailors, or marines on their own initiative and not in connection with military operations. Men accused of these crimes may be tried by national tribunals, either military or civil.

Third, the treason of government officials or party leaders, such as Pierre Laval of France or Vidkun Quisling of Norway, who helped deliver up their countries to the enemy. Treason is a crime with which the courts of each country, not outside tribunals, are properly suited to deal.

So much for what the definition does not include. It does include, however, three types of persons who may not be regarded as war criminals by some authorities:

First among these are officers or officials who, according to the Moscow Statement, took “a consenting part in,” that is, had the power and authority to prevent the atrocities, massacres, and executions, but failed to stop them.

Second, the definition includes not only military leaders but political chieftains. Under Germany’s conception of “total war” there is little difference between the cruelties of the Gestapo (the civilian undercover police), the notorious “S.S.” (the Nazi Party’s private army to keep the German people in check), and “Death Head” guards at concentration camps, and the cruelties of strictly military officers. Perhaps the former can be more appropriately tried, however, for violations of ordinary common and statutory criminal law than for acts contrary to the laws and customs of legitimate warfare.

Finally, the definition includes businessmen and industrialists of prestige and power who indirectly participated in or conspired to commit crimes, especially those who shared, often by prearrangement, in the loot of countries overrun by the Axis armies. This group might include officials of the I. G. Farben, Goering, Krupp, Thyssen, and Mannesmann trusts in Germany and the Mitsui and other Japanese business clans. These officials, as principals, accessories, or conspirators, might be tried for robberies and thefts actually committed by the military and political leaders.

On August 21 I said that this Government was constantly receiving information concerning the barbaric crimes being committed by the enemy against civilian populations in occupied countries, particularly on the continent of Europe. I said it was the purpose of this Government, as I knew it to be the purpose of the other United Nations, to see that when victory is won the perpetrators of these crimes shall answer for them before courts of law.

The commission of these crimes continues.

I now declare it to be the intention of this Government that the successful close of the war shall include provision for the surrender to the United Nations of war criminals.

With a view to establishing responsibility of the guilty individuals through the collection and assessment of all available evidence, this Government is prepared to cooperate with the British and other Governments in establishing a United Nations Commission for the Investigation of War Crimes.

The number of persons eventually found guilty will undoubtedly be extremely small compared to the total enemy populations. It is not the intention of this Government or of the Governments associated with us to resort to mass reprisals. It is our intention that just and sure punishment shall be meted out to the ringleaders responsible for the organized murder of thousands of innocent persons and the commission of atrocities which have violated every tenet of the Christian faith. (President Roosevelt, October 7, 1942)

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