WAR CRIMES: West of the Pecos

Herr Gustav Krupp von Bohlen und Halbach, 75, head of Germany’s notorious munitions dynasty, was too old and too sick to go on trial with the other indicted war criminals at Nürnberg. But Chief U.S. Prosecutor Robert Houghwout Jackson wanted a live Krupp in the dock. He had an idea: why not substitute 38-year-old Alfried Krupp for his ailing father? After all, all the Krupps were in the same boat. The Russians and French agreed; Jackson asked for a delay to write the new name into the old indictment. The International War Crimes Tribunal refused his request, decided to go ahead with the trial this week.

Traffic Lights. This incident typified the tribulations which the Nürnberg trial held in store—for the accusers.

The technical difficulties alone were ominous. Since German-speaking defendants were to be tried by English, French and Russian-speaking judges, a battery of interpreters would simultaneously translate every word into the three other languages. Each person in court would get a pair of earphones and a dial with which he could tune in on any desired language. Whenever an interpreter fell behind the proceedings, a yellow light would signal a slowdown. If the interpreter got really snafued, a red light would halt the trial.

The legal difficulties were no less imposing. The Allies had to make the law for the trials; there were few precedents. The Anglo-Saxon jurists were used to jury trials of men presumed innocent until proved guilty. The French had legal customs based in part on the sterner Roman code. The Russians were used to even sterner totalitarian ways.

For Nürnberg, the lawyers had produced an uneasy synthesis. The defendants would be allowed to plead guilty or innocent, but in effect all were presumed guilty. Each defendant would have the right to address the court, but not the right to keep quiet. There would be some 50 prosecuting, some 20 defense attorneys. Each verdict would require agreement by three of the four judges. The only court of appeal would be the Allied Control Council.

Among the difficulties sure to be capitalized by the defense:

¶ Everyone knew what was meant by the crimes against the peace and against humanity with which the defendants were charged. Yet, for all the weighty words of the mass indictment, the terms were loose. The defendants themselves had done most of their deeds in the name of peace, humanity, and national honor.

¶ “Wars of aggression” were now considered illegal. Yet the prosecuting powers had waged aggressive wars (Russia in Finland) or countenanced it (the U.S. maintained relations with Germany after the invasions of Poland and the Low Countries).

¶ One part of the indictment implied that making war was itself a crime, while another accepted war as an institution by speaking of its “laws and customs.”

¶ Four sovereign states charged the accused with conspiring to seize power in their own sovereign state.

¶ Whatever laws the Allies were trying to establish for the purpose of the Nürnberg trials, most of them had not existed at the time the deeds were committed. Yet, since the days of Cicero, jurists have condemned ex post facto punishment.

One Kind of Law. Many hoped, with Prosecutor Jackson, that Nürnberg was an important beginning, and that around this precedent real international law would crystallize. But there was a very real danger that the Nürnberg trials would turn into chaotic farce, set international law back by decades. That danger was inherent in one school of thinking. No less an authority than U.S. Attorney General Tom Clark had publicly hoped that the Nürnberg court “will deal out what we in Texas call ‘Law west of the Pecos’—fast justice, particularly fast.”