War Crimes and the Limits of Legalism

In April 1945, Sir John Simon, Britain’s Lord Chancellor, drew up a memorandum that was the last gasp in the diplomatic struggle against Nuremberg. Under American pressure, and despite British objections, the Allies were poised to agree to put the Axis leadership on trial for war crimes. In the kind of magnificent understatement that the British government could sometimes inadvertently achieve, it was entitled “The Argument for Summary Process against Hitler & Co.” The memorandum was a series of arguments to be used by the British delegation at the San Francisco conference in a last-ditch effort to win over the Americans and Soviets. Simon’s case was simple: the Nazi leaders deserved to be punished, but trials were not the way to do that. Simon feared that a trial of the Nazi leadership would drag on, wear out public interest, unearth embarrassing facts, and allow the Nazis a final chance to make propaganda. The legal difficulties also seemed daunting. It would be nightmarish to merge the American, British, and Soviet legal traditions. Nor was it clear that aggression – which was to be the main charge at Nuremberg and the focus of the American prosecution – could be considered a war crime in any conventional sense. If the Nazi defense managed to score a few small victories, the trial might be denounced as “a farce.” So Simon had a simpler solution: avoid the niceties of a trial and just shoot the Nazi leaders. These arguments were to be quashed. Led by Henry Stimson, Franklin Roosevelt’s Secretary of War, the American government was determined to have sweeping trials for the Nazi war criminals. In the face of this, Britain decided not to push Simon’s argument any further but to acquiesce with the wishes of its more powerful American ally with as much good grace as could be mustered.2 Whether one agrees with them – and I don’t – Simon’s arguments were not weak ones. But they are strange to hear nevertheless. Nuremberg is seen in retrospect as so unimpeachable, an act of such extraordinary restraint and justice, that it is disturbing to hear that it was fought with such pragmatic objections. When considering a war crimes tribunal for the former Yugoslavia and then another one for Rwanda, the United Nations did not air such debates. To the contrary, there is a kind of orthodoxy in human rights circles that regards it as almost self-evident that war crimes deserve war crimes trials. So many of the arguments against war crimes trials have been made in bad faith – by apologists for Serb or Croat nationalists and Hutu genocidaires, who do not really question legalistic methods but the need for punishment itself – that it is easy to forget that there are some reasonable arguments made in good faith against the trials.