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J. 333305-M N O State
Galley 375
UNCORRECTED GALLEY PROOF
The criminals to be punished. The outstanding offenders are, of
course, those leaders of the Nazi Party and German Reich who since
January 30, 1933, have been in control of formulating and executing
Nazi policies.
In addition, the Nazi leaders created and utilized a numerous or-
ganization for carrying out the acts of oppression and terrorism which
their program involved. Chief among the instrumentalities used by
them are the SS, from the personnel of which the Gestapo is con-
stituted, and the SA. These organizations consist of exactingly
screened volunteers who are pledged to absolute obedience. The
members of these organizations are also the personnel primarily relied
upon to carry on postwar guerilla and underground operations.
IV. DIFFICULTIES OF AN EFFECTIVE WAR CRIMES PROGRAM
Difficulties of identification and proof. The names of the chief
German leaders are well known, and the proof of their guilt will not
offer great difficulties. However, the crimes to be punished have been
committed upon such a large scale that the problem of identification,
trial and punishment of their perpetrators presents a situation without
parallel in the administration of criminal justice. In thousands of
cases, it will be impossible to establish the offender's identity or to
connect him with the particular act charged. Witnesses will be dead,
otherwise incapacitated and scattered. The gathering of proof will be
laborious and costly, and the mechanical problems involved in un-
covering and preparing proof of particular offenses one of appalling
dimensions. It is evident that only a negligible minority of the offend-
ers will be reached by attempting to try them on the basis of separate
prosecutions for their individual offenses. It is not unlikely, in fact,
that the Nazis have been counting on just such considerations, to-
gether with delay and war weariness, to protect them against punish-
ment for their crimes if they lost the war.
Legal Difficulties. The attempt to punish the Nazi leaders and their
associates for all of the atrocities committed by them also involves
serious legal difficulties. Many of these atrocities, as noted in your
statement on the subject of persecution dated 24 March 1944 (Tab E),
were "begun by the Nazis in the days of peace and multiplied by
them a hundred times in time of war." These pre-war atrocities are
neither "war crimes" in the technical sense, nor offenses against
international law; and the extent to which they may have been in
violation of German law, as changed by the Nazis, is doubtful.
Nevertheless, the declared policy of the United Nations is that these
crimes, too, shall be punished; and the interests of postwar security and
a necessary rehabilitation of German peoples, as well as the demands of
justice, require that this be done.
V. RECOMMENDED PROGRAM
After Germany's unconditional surrender the United Nations
could, if they elected, put to death the most notorious Nazi criminals,
such as Hitler or Himmler, without trial or hearing. We do not
favor this method. While it has the advantages of a sure and swift
disposition, it would be violative of the most fundamental principles
of justice, common to all the United Nations. This would encourage
the Germans to turn these criminals into martyrs, and, in any event,
only a few individuals could be reached in this way.
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"ocrText": "J. 333305-M N O State\nGalley 375\nUNCORRECTED GALLEY PROOF\nThe criminals to be punished. The outstanding offenders are, of\ncourse, those leaders of the Nazi Party and German Reich who since\nJanuary 30, 1933, have been in control of formulating and executing\nNazi policies.\nIn addition, the Nazi leaders created and utilized a numerous or-\nganization for carrying out the acts of oppression and terrorism which\ntheir program involved. Chief among the instrumentalities used by\nthem are the SS, from the personnel of which the Gestapo is con-\nstituted, and the SA. These organizations consist of exactingly\nscreened volunteers who are pledged to absolute obedience. The\nmembers of these organizations are also the personnel primarily relied\nupon to carry on postwar guerilla and underground operations.\nIV. DIFFICULTIES OF AN EFFECTIVE WAR CRIMES PROGRAM\nDifficulties of identification and proof. The names of the chief\nGerman leaders are well known, and the proof of their guilt will not\noffer great difficulties. However, the crimes to be punished have been\ncommitted upon such a large scale that the problem of identification,\ntrial and punishment of their perpetrators presents a situation without\nparallel in the administration of criminal justice. In thousands of\ncases, it will be impossible to establish the offender's identity or to\nconnect him with the particular act charged. Witnesses will be dead,\notherwise incapacitated and scattered. The gathering of proof will be\nlaborious and costly, and the mechanical problems involved in un-\ncovering and preparing proof of particular offenses one of appalling\ndimensions. It is evident that only a negligible minority of the offend-\ners will be reached by attempting to try them on the basis of separate\nprosecutions for their individual offenses. It is not unlikely, in fact,\nthat the Nazis have been counting on just such considerations, to-\ngether with delay and war weariness, to protect them against punish-\nment for their crimes if they lost the war.\nLegal Difficulties. The attempt to punish the Nazi leaders and their\nassociates for all of the atrocities committed by them also involves\nserious legal difficulties. Many of these atrocities, as noted in your\nstatement on the subject of persecution dated 24 March 1944 (Tab E),\nwere \"begun by the Nazis in the days of peace and multiplied by\nthem a hundred times in time of war.\" These pre-war atrocities are\nneither \"war crimes\" in the technical sense, nor offenses against\ninternational law; and the extent to which they may have been in\nviolation of German law, as changed by the Nazis, is doubtful.\nNevertheless, the declared policy of the United Nations is that these\ncrimes, too, shall be punished; and the interests of postwar security and\na necessary rehabilitation of German peoples, as well as the demands of\njustice, require that this be done.\nV. RECOMMENDED PROGRAM\nAfter Germany's unconditional surrender the United Nations\ncould, if they elected, put to death the most notorious Nazi criminals,\nsuch as Hitler or Himmler, without trial or hearing. We do not\nfavor this method. While it has the advantages of a sure and swift\ndisposition, it would be violative of the most fundamental principles\nof justice, common to all the United Nations. This would encourage\nthe Germans to turn these criminals into martyrs, and, in any event,\nonly a few individuals could be reached in this way."
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