Abstract

The Second World War witnessed the commission of crimes of unprecedented brutality and scale. The magnitude and cruelty of these events presented a challenge to the Allied leaders charged with determining the fate of those thought to be responsible for these crimes. Given their nature, it was agreed that they could not go unpunished. However, the choice of means and methods of punishment was far from self-evident. As one author pointed out, ‘[t]he “law” of an armistice or a treaty is, in the final analysis, the will of the victor’. Hence, the Allied Powers considered a whole range of political and executive responses that did not involve any legal or judicial elements. ¹ However, neither retaliation nor brutal reprisal were capable of bringing a sense of justice to victims whilst at the same time helping to restore peace to the continent. ² The view that eventually prevailed was that those suspected of committing these crimes should be subject to a judicial process that would investigate and pass judgment on their individual responsibility. Henry Stimson understood too well the symbolic value of giving the defendants rights and privileges associated with a genuine judicial process that they had denied so systematically to those who had opposed them: ‘We gave to the Nazis what they had denied their own opponents—the protection of the Law’. ³ In that sense, what would become the Nuremberg Tribunal was not intended to be an instrument of vengeance, ‘but the reverse’. ⁴