1945: Summary Justice or International Law?

In the spring of 1945, preparing for the trials of Nazi war criminals at Nuremberg, U.S. Supreme Court Justice, Robert Jackson, asked a promising 37-year-old lawyer, Telford Taylor, to serve as a war crimes prosecutor. The trials were being undertaken jointly with the other leading wartime allies, Great Britain, the Soviet Union and France. Taylor would ultimately be responsible for the prosecutions of German industrialists and economists, but one of his initial tasks was to argue the case for holding the trials at all, particularly when it came to the surviving Nazi leaders, such as Goering, Hess and Ribbentrop. Hitler, Goebbels and Himmler had all managed to commit suicide and were never brought to trial.

The Soviet Union was implacably opposed to trying the top Nazis and wanted them to be summarily executed. This can be seen in the context of the despotism of the Soviet system itself, but it should also be remembered that at least 20 million Russians, military and civilian, died during the Second World War. There were some strong arguments against an international war crimes trial too: the trials could never be fair, they would give the opportunity for the Germans to state their case (Goering tried this, relatively successfully) during the trial process. Stalin had one principle ally in his demands for summary justice, Winston Churchill. Churchill said that as far as he was concerned, the Nazi leaders could be shot without a trial as soon as they were caught "and their identity is established."

It was the Americans who held firm to the belief that the establishment of an international war crimes procedure and concepts of human rights was paramount. This, despite the understandable feelings of vengeance that were prevalent at the end of the Second World War towards those who had committed the terrible crimes of the Nazi era  - although, arguably, the full details of the Holocaust came out through the trials themselves.

Telford Taylor argued that the Allies should not "let... the fate of the Nazis take an unguided course.... A scattering of small trials would have carried no weight, whereas the world's eyes and ears would be fastened on a big international trial." Taylor's boss, Judge Robert Jackson, took the argument to the highest level in the United States government, where there was also some strong feeling against the trials, arguing

You want to execute them for the right reasons, if you want to do anything for the future peace of the world. If we stand for all the things we’ve been saying we stand for, we can hardly refuse to make an inquiry. It’s difficult for me to see why you can hesitate to record here the evidence and make it available – the record of its rise and that barbarism and all that – to have it available, and this is the only real official way to do it.

In the end, the American view prevailed. They ensured that the universal detestation of what the Germans had done would not damage the cause for which the Allies had fought. 

Telford Taylor's own account can be found in The Anatomy of the Nuremberg Trials (1993).