Victors and judges
When Hermann Goering, the most senior of the National Socialist politicians captured by the Allies at the end of World War Two, was handed a copy of the statement indicting him of war crimes and crimes against humanity, he scribbled on the margins: 'The victor will always be the judge and the vanquished the accused'.
'The guilt of such individuals ... is so black that they fall outside ... any judicial process.'
He was not the only person to express this thought. The idea that the war crimes trials at the end of World War Two were expressions of a legally dubious 'victors' justice' was not confined only to those who were its victims. Even on the Allied side there were senior legal experts who doubted the legality of the whole process. The four victorious Allies themselves argued for months over the vexed question of who to put on trial and on what charges.
The origin of these arguments lay much earlier in the war years, when the western Allies first began to think about the treatment to be meted out to Adolf Hitler and the rest of the German leadership if the Allies won the war. The inclination of the British government and of the prime minister, Winston Churchill, in particular, was simply to shoot Axis leaders out-of-hand, as outlaws, once they were caught.
The plan was to allow senior officers in the field to confirm the identity of the prisoner, and then to execute them by firing squad within six hours. A long list was drawn up of those deemed to be 'war criminals'. No attempt was made to identify their specific crimes. 'The guilt of such individuals,' announced Britain's foreign secretary, Anthony Eden, in 1942, 'is so black that they fall outside ... any judicial process.' At the end of the war in Europe, in May 1945, the firing-squad plan was still the preferred option of British leaders, including Churchill.
Neither the Soviet nor the American government was happy with the British suggestion. Though both states shared the view that they faced an evil regime, they both favoured some formal process of law, the Soviet Union because it was felt necessary to display publicly the guilt of the accused, the United States because there existed powerful voices in Washington decrying the idea that democratic states should simply murder their enemies.
Published: 2005-0428
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