In his autobiography, David Maxwell Fyfe writes of his first meetings with Justice Robert Jackson of the U S in early June 1945, barely a month after V E Day, as they discussed how the Allies should deal with the War Criminals from World War 2.
It was no simple problem that faced us in our early talks. There were three choices open to us. The first was to let those whom we believed to be major criminals go. In Jackson’s words this would have been to mock the living and insult the dead. Moreover, as we were already punishing those who had carried out the individual crimes, we should have stepped into the position which my predecessor, F. E. Smith, had described in his opinion to the Cabinet in 1918, in Juvenal’s words :
Dat veniam corvis vexat censura columbas.
Censure acquits the raven but fall foul of the dove.Juvenal
The second choice was executive action, under which Napoleon had been sent to Elba and then to St Helena. This had two classes of supporters. First there was the large and vocal ‘stick’ ’em up against a wall and shoot ’em school. Others who favoured executive action put forward a much subtler argument. They made the point that political trials were always a failure – from Charles I onwards… They insisted that on the actions of the German leaders everyone had already formed both a moral and a political judgement, and therefore unbiased judges could not be found. So they came to the conclusion that the leaders of the victorious powers must kill or imprison those whom they thought guilty and answer for their actions at the bar of history.
What such people had never considered was how this would be done. Either the Allied political leaders or their generals, if the task were devolved in them, would have had to select those who had been guilty of crimes, which would have to have been specified, and decide whether death of imprisonment was the appropriate punishment. Although they could have had the advice of Jackson and myself, and of the French and Russian colleagues who afterwards joined us, what must have been in the end an essentially judicial function would have been performed in a back room without any attempt of the requirement of judicial fairness. In this context, it must be remembered that after months of work in selecting and prosecuting defendants on what seemed to us overwhelming evidence, the Tribunal at Nuremberg found that we were wrong in three cases and acquitted von Papen, Fritzsche and Schacht.
The third choice was to select the defendants and give them a hearing. In such event, natural justice demanded that we should inform them clearly what the charges were against them, produce to them the evidence in which these charges were based, and give them a full opportunity of answering them.
This was the view strongly advocated by Jackson and myself. I held that it would be a deplorable beginning to a world in which everyone was looking for the rule of law if we irresponsibly cast it overboard in our first difficult sea. Moreover , martyrs are easy to make as the years pass, and nothing but a public deployment of impregnable evidence of guilt would prevent this retrospective hagiology.
Extract From A Political Adventure, Chapter 8, Prologue to Nuremberg, by David Maxwell Fyfe
Published 1964 Weidenfeld & Nicolson