The British House of Lords now suggested the Allies proceed by creating a fact-finding commission and asked Foreign Secretary Eden to sound out all relevant governments. On October 3 he set out to do just that. President Roosevelt’s response had insisted on strong language, and on October 7 the British and Americans announced they were establishing a United Nations War Crimes Commission. Although in a joint statement they said their intention was to mete out “just and sure punishment” to the “ringleaders responsible for the organized murder of thousands of innocent persons,” it was not clear what the UN commission would do beyond fact-finding.1
Eden received no response from the Soviet Union or China. Instead, on October 14, the Kremlin issued a detailed statement about the “monstrous atrocities” being perpetrated by the invaders, and on November 2 it announced its own Extraordinary State Commission for the Establishment and Investigation of the Crimes of the Fascist German Invaders and Their Accomplices (Chrezvychainaia gosudarstsvennaia komissiia, or ChGK). This new body, whose workings were soon fine-tuned by Stalin, was led by prominent public persons and intellectuals. Interestingly, its reports were intended mainly to influence the politics in Allied countries and less for use in the Soviet Union.2
On December 17 the United States, Britain, and the USSR, along with nine European exile governments, condemned German authorities for “now carrying into effect Hitler’s oft-repeated intention to exterminate the Jewish people in Europe.” The announcement reaffirmed the Allied resolve “to insure that those responsible for these crimes shall not escape retribution.”3
As we have seen, in 1943 the reality of wartime massacres entered the public domain in April when the Nazis began publishing evidence they found of the mass graves of Polish officers at Katyń. The Soviet atrocities commission (ChGK) was still getting organized, but the political ramifications of Katyń and the need for an urgent response energized it.4
When the stories were published on April 13, Propaganda Minister Joseph Goebbels in Berlin was delighted at the resonance the findings had in Germany and abroad.5 Only six days later the pressure to counterbalance the news about Katyń could be seen in a new Soviet edict, again checked through by Stalin, that promised harsher punishments for Nazi “criminals and their local hirelings.” In May the Germans came across more mass graves, this time nearly 10,000 corpses in Vinnytsia (Ukraine), and in the following months publicized those as well.6 It was generally accepted in the West that these mass murders were indeed the work of the Soviet secret police, though in the wartime circumstances the atrocities were quietly overlooked or put aside.
Moscow’s April decree on war crimes stipulated that the accused would face a public court-martial, with punishment either by public hanging or banishment and tsarist-style hard labor (katorga) for fifteen to twenty years.7 Three trials followed in Krasnodar, Mariupol, and Krasnodon. Most of the accused were Soviet citizens, but a total of forty-six Germans were also indicted, twelve of whom were eventually executed.8
On July 14 the first of these events opened in Krasnodar. The eleven accused Soviets faced a show trial of the kind well practiced in the 1930s. Thus the “legal” task of the proceedings was to demonstrate guilt and apportion punishment. Eight of the eleven were sentenced to execution, and a crowd estimated at 30,000 gathered for the hanging.9 Stalin’s edict stated that “the corpses were to be left on the gallows for several days.”
In December 1943 another such event was staged in Kharkov (today Kharkiv, Ukraine). The case was noteworthy for indicting three Germans as well as one local collaborator. The four accused were clearly “small fry” (two lower-ranking officers and a corporal) chosen to represent branches of the occupation, along with one Russian accomplice. The trial followed the usual script, complete with the overeager confessions of the accused. According to the verdict, they were responsible for shooting, hanging, or poisoning in gas vans no fewer than “30,000 peaceful and completely innocent citizens.”10 There was silence on the fact that most of the victims of these atrocities were Jews.
The Kharkov trial itself was widely publicized, complete with a full-length documentary film, The Trial Goes On, which revealed the stark evidence of mass murder. The public execution of the guilty in the town’s square was watched by a cheering crowd of 50,000.11 Washington and London were disquieted, though not because of legal scruples about the trials. Rather they were worried about how Hitler might retaliate against their own POWs in German hands. The United States and Britain did not ask that such events be stopped, and Moscow said they would continue, but in fact there were no more until after the war.12
The Soviets also drew criticism for refusing to sign on to the UN War Crimes Commission, officially in existence since October 20, 1943. However, the foreign ministers achieved a degree of concord at the tripartite conference held in Moscow at about the same time (October 19–30). That meeting issued the Moscow Declaration, in the name of Britain, the United States, and the Soviet Union, as well as thirty-two other nations. The signatories sternly warned Germany that when the armistice arrived, the accused offenders “will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged.”13
Stalin, Roosevelt, and Churchill were unresolved about what to do with the top leaders, though the Soviet dictator briefly broached the topic at the Tehran Conference in late 1943. The Big Three leaned toward summary executions. Stalin suggested over dinner on November 29 that unless effective means were adopted, Germany would rise again in fifteen or twenty years. Then he suggested that such an event could be preempted if the Allies “physically executed” 50,000 or perhaps 100,000 leaders of the German armed forces. He also thought that the victorious powers should retain control over the “strategic points in the world and if Germany moved a muscle she could be rapidly stopped.” Roosevelt, somewhat taken aback by the scale of the executions proposed by Stalin, jokingly wondered whether the number might be set at “49,000 or more.” FDR’s son Elliott, who was there that evening, joked about raising the number to 49,500.14
Churchill objected vigorously to “the cold-blooded execution of soldiers who had fought for their country.” He felt that anyone charged with “barbarous acts” should be judged according to the Moscow Declaration that all three leaders had just signed. Although the record does not mention it, Churchill was so upset that evening that he got up to leave, but was chased down by a jovial Stalin, who said that he was only joking. The prime minister returned to the table but later recalled thinking that the dictator was testing the waters.15
In early 1945 at Yalta, FDR, in private conversation with Stalin, brought up the topic of dealing with war criminals and asked him whether “he would again propose a toast to the execution of 50,000 officers of the German army.” The Soviet leader ducked the question, because by then he had changed his mind about executions and wanted a major show trial of the kind his minions had already perfected.16
In any event, after Yalta the decision about the major war criminals was given to the foreign secretaries to consider, and deeper discussions of the legal implications continued within and among the three administrations. They agreed on holding major war criminals responsible before an international military tribunal, but the principal remaining difference was that Moscow wanted show trials to demonstrate the “self-evident guilt” of the accused and to apportion punishment. Nevertheless, the Americans and British succeeded in getting a process that was consistent with their legal traditions, in which the accused was regarded as innocent until proven guilty. The long negotiations culminated on August 8, 1945, when Allied representatives signed the charter for an international military tribunal. The trials of selected major war criminals went ahead at the Nuremberg Military Tribunal later that year, with more to follow.17