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recommendation, I further listed three reasons as of leading importance:

To safeguard the reputation of the judicial process as carried out at Nurnberg. As Mr. Justice Jackson stated in opening the trials before the International Military Tribunal, "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow." The Nurnberg record is a good one. We must not provide an excuse for illinformed discussion of the Nurnberg trials by making access to the truth difficult. From the standpoint of fairness to the defendants, the Nurnberg record is one of which no American citizen, and particularly no American judge or lawyer, need be anything but proud. It is important that this fact be known as widely as possible, both at home and abroad, and the best way to accomplish this is to lay the record of the proceedings before the lay public and the professional bar.

To aid in the development of a workable and enlightened system of international law. During the past century, the focus of activity in international law has moved rapidly from the academic lecture hall toward the courtroom and diplomatic conference chamber. The Nurnberg proceedings are among the outstanding examples of modern international law in action. Many perplexing problems of international legal procedure have been met and answered in the course of these trials, and many profoundly important substantive questions have received the considered judgment of experienced jurists. International penal law-like the Anglo-Saxon common law, from which our most cherished legal institutions derive-is growing by the case method. The trials of major war criminals at Nurnberg, Tokyo, Rastatt (where the French are holding a most important trial under Control Council Law No. 10), and elsewhere, will be looked to by diplomats and international jurists just as the decisions of our own courts are looked to by our statesmen and lawyers.

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To promote the interest of historical truth and to aid in the reestablishment of democracy in Germany. As you recently stated in a speech at Denver, "The first purpose of occupation was to prevent Germany from ever again upsetting the peace of the world we were determined to create conditions in Germany which would put a stop to her militarism once and for all. No matter how many other issues have woven themselves into the German picture, we must not forget this original purpose of occupation. To this purpose we must still adhere-for the sake of our peace and the peace of our world." The re-education of Germany in order to provide a sound basis for a democratic government is a crucial objective, but it is far from easy to take effective steps in pursuance of this purpose. But one thing we can do is to make the facts available to German historians, so that future generations of Germans will be able to grasp the full and malignant import of the Third Reich, and understand why it proved such a terrible engine of destruction for the world and for Germany herself.

I have laid the principal stress on Germany in this connection, but I do not overlook that history is no respecter of nationalities and has lessons for us all. Never before has such a wealth of tested historical material been put at the disposal of scholars as at Nurnberg. The reports and other documents of the German Foreign Office, the Wehrmacht, and other governmental and private institutions have been made part of a public record and have been subjected to all the explanations and qualifications that the very men who wrote these documents chose to advance. This is the raw material of history in wonderful profusion.

Of course, the reasons sketched above are in large part the same reasons which required holding the trials. The whole project will be left truncated and

incomplete unless adequate publication is ensured in both the English and German languages.

In acknowledging receipt of my report, Mr. Royall stated that he had "instructed careful study to be made as to the practicability of promptly publishing the proceedings as recommended by you."

Upon inquiry directed to the Departments of State and Justice, both of those departments expressed themselves (in July 1948) as in favor of publishing the trial records as recommended by me, and on 19 August 1948 the Acting Chief of the Civil Affairs Division submitted to the Secretary of the Army a formal recommendation to this effect, together with an estimate of the cost of 1,000 sets of a series of 15 volumes. The proposal and estimate were approved by Mr. Royall.

Since that time, preparation of the records for publication has been in process both at Nuernberg and in the War Crimes Division of the Office of the Judge Advocate General in the Pentagon Building. Because of the unexpected delay in the rendition of the last two Nuernberg judgments, and because the difficulties of preparing an accurate text (much of which is based on translation from German) have been greater than anticipated, progress has been slowed. Volume I, however, is now in page proof and will be printed and published shortly, and Volume II will be in page proof in the very near future. Volumes IV and V are edited and checked and available for printing, and several other volumes can be made ready for printing within the next 6 or 8 weeks.236

In a memorandum to the Secretary of the Army (Mr. Gordon Gray) dated 7 July 1949, I have reiterated and reaffirmed the recommendation made the previous year to Secretary Royall. In my judgment, failure to complete the publication of the Nuernberg trial records in both English and German would tend strongly to defeat the objectives of the United States in the field of war crimes as originally developed by Mr. Stimson and approved by Presidents Roosevelt and Truman, and would result in waste of most of the time, money, and effort invested over the past 10 months in the preparation of this material for publication.

236 [Unforeseen difficulties delayed publication of the proceedings. Vol. II is now scheduled for release in February 1950 and succeeding volumes will follow periodically thereafter.]

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CONCLUSION

In assaying the war crimes trials, whether at Nuernberg, Tokyo, Dachau, or elsewhere, and in studying the mistakes that were made, in order to derive therefrom lessons for the future, one must bear in mind that the profound moral and legal issues of the Second World War may or may not recur in connection with a future war, should such unhappily occur. Nor may we again be confronted with such an extraordinary situation as arose at the end of the Second World War in Europe because of the complete disintegration of the entire governmental structure of Germany.

For it was these circumstances that led to and, in large part, shaped the war crimes "program" of the United States (as well as of other countries). The boundless havoc wrought by the war, the incredible mass atrocities which accompanied its waging, and finally, the growing realization that another war might well put an end to modern civilization-these and other factors aroused a world-wide demand for the trial and punishment of those guilty of launching the war and committing the atrocities. As Mr. Justice Jackson put it in his opening statement before the International Military Tribunal,237 these crimes and atrocities were "so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated."

Thus it came about that trials of individuals charged with the commission of "war crimes" in connection with the Second World War were held on a scale quite without precedent in recorded history. In Germany, the widespread responsibility for these crimes among the German leaders in the fields of government, arms, and industry posed problems not only of law but of judicial administration which were of truly staggering proportions. At the same time, the collapse and virtual disappearance of the German Government, the total and crushing defeat of Japan, and the intellectual and moral vacuum created in both those countries by years of tyranny followed by utter disaster, meant that the entire responsibility for stating the principles and shaping the policies in the field of war crimes was and had to be discharged by the victorious powers.

If we find ourselves again at war, and emerge victorious, the defeated enemy governments may or may not be so utterly malignant 237 Trial of the Major War Criminals, op. cit. supra, Vol. II, p. 99.

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as was the Third Reich. There have, needless to say, been numerous wars in modern history the conclusion of which required no "war crimes program." Neither the general public, diplomats, nor international jurists felt the need for a Nuernberg after, for example, the Crimean War, the Spanish-American War, the Russo-Japanese War of 1905, or even the Franco-Prussian War of 1870. No one can foresee the future course of events with such certainty as to rule out the possibility that such a more "limited" war-in which the moral antagonism is not so deep, the responsibility for its outbreak not so clear, and the standards of conduct on both sides are more nearly at a common level, and which is not fought "to the death"-may not occur again.

On the other hand, history sometimes repeats itself in broad outline if not in detail. The Second World War abundantly proved that dictatorship is the most constant and serious menace to world peace, as well as to the preservation of liberty and the maintenance of moral standards. Dictatorship is still playing a leading part in world affairs and international politics, and in Germany itself there is already an alarming resurgence of authoritarianism. By prudent military preparedness, by unflagging efforts to lay the groundwork for international society and the rule of law among nations, and by constant improvement in the economic and social foundations of our own democracy, we may hope at one and the same time to undermine these destructive and tyrannical forces and obviate the necessity for a victory by force of arms. It is devoutly to be hoped that there will never be a "second round" of Nuernberg trials, but this hope is most likely to be realized if the principles first judicially applied at Nuernberg are supported with all the resources at our command.

Operational Shortcomings and Their Lessons for the Future

The outstanding fact about the war crimes "problem" at the end of the Second World War is that, like many other postwar problems, it was far bigger and far more difficult of solution than anyone had anticipated. As was shown at the outset of this report,238 the treatment of war criminals became a matter of diplomatic concern to the United States Government as early as 1942, and was under careful study by the Joint Chiefs of Staff in the late summer of 1944. Partly as a result of Mr. Stimson's deep personal interest in the question, it soon became a matter of Government policy at the highest levels, and was projected into the international arena in the spring of 1945. Following Mr. Justice Jackson's appointment as Chief of Counsel for War Crimes, all energy and attention were focused on the nego

238 Supra, pp. 1-2.

tiations which culminated in the London Agreement and Charter, and on preparations for the international trial before the IMT.

To prepare and present the case for the American prosecution, Mr. Justice Jackson assembled a large staff of attorneys and experts, including a number of experienced attorneys of outstanding ability. This staff, however, was selected and organized for the sole purpose of the first trial. Most of its members came to Nuernberg with the intention of remaining only for the few months necessary to present the prosecution's case; many of them were temporary army officers who had been away from home long periods during the war and were eager and entitled to return to their normal occupations. Mr. Justice Jackson himself was on temporary leave from the Supreme Court of the United States; this very circumstance, to say nothing of the Justice's own oft-repeated statements, made it clear that it was his high responsibility to act as the chief American prosecutor in the first international trial of war criminals, but not to assume the administrative and policy responsibilities of shaping a war crimes program for the occupational administration and establishing an organization to execute those policies.

Thus it came about that, when the Joint Chiefs of Staff finally issued their very broad directive on the subject of war crimes to General Eisenhower (J. C. S. 1023/6),239 there was no organization available either in the United States or in Europe to carry the directive into effect. Mr. Justice Jackson's staff was fully occupied with the first trial and few of its members would be available for other proceedings. The Theater Judge Advocate was fully occupied with the limited categories of war crimes trials which fell within his jurisdiction.240 The result of all this was that our war crimes program as a whole was delayed by almost a year in getting under way.

In retrospect, it can be seen that the loss of this year was costly. The complexion of international events changed with surprising rapidity, and German affairs rapidly-in my judgment, too rapidly— sank into relative obscurity in the press and, one must assume, in the public mind. At the same time, those who were dealing with the war crimes problems could not escape the conclusion that the root causes of the crimes were far deeper and more far-reaching than had been suspected. If the trials under Law No. 10 had started and been finished a year earlier, it might well have been possible to bring their lessons home to the public at large far more effectively.

All in all, in my opinion it would have been wise to establish at the very outset a single organization for the purpose of planning and

239 Supra, pp. 4-6, J. C. S. 1023/6 is printed in full in Appendix C. 240 Supra, p. 10.

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