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Unilateral Prosecution Through Ad Hoc Allied Military Tribunals

Although the Allies decided to prosecute many of the most senior Nazis before an international military tribunal, other Nazis were prosecuted through alternative systems. On December 20, 1945, a month after the IMT trial began, the Allied Control Council issued Control Council Law No. 10, which provided that each occupying authority, within its Zone of Occupation, could arrest, prosecute, and, if convicted, punish suspected atrocity perpetrators located within its respective Zone. The only exception arose if individuals were transferred to another tribunal, such as the IMT.85 Ten months later, on October 18, 1946, the USG established unilateral American military tribunals with the power to try and punish these suspected atrocity perpetrators.86 The U.S. Military Governor retained the option to enter into agreements with other Zone commanders of the member states of the Allied Control Authority to establish joint trial of any cases.87

After the IMT trials ended in October 1946, the quadripartite Allied powers disagreed over whether and how to proceed with subsequent trials of the remaining suspected atrocity perpetrators, who numbered in the thousands. One plan, offered by Taylor, was that each of the four Allied powers would divide Nazi prisoners into groups of 200 to 400 and then prosecute them in unilateral tribunals in their respective Zones of Occupation. However, the Allied powers disagreed over the plan; for example, some USG officials cited the unacceptable expense, and some Soviets opposed any trials not held in Berlin.88 Ultimately, the United States, the United Kingdom, and France would organize trials under the authority of Control Council Law No. 10, whereas the Soviet Union would not.89

The USG pursued unilateral trials in its Zone of Occupation in addition to military commissions and lustration (called “denazification”). Two months after the IMT proceedings concluded, the USG organized twelve subsequent war crimes trials, which they also held in Nuremberg. In his position as Jackson’s successor, Taylor, who had tried the case against the German High Command before the IMT, served as chief prosecutor at these trials of the NMT. The first of these twelve subsequent trials began on December 9, 1946, and the final proceeding concluded on April 13, 1949.90 Of those convicted through the NMT trials, 13 were executed, 8 received life sentences in prison, and 111 others received either light sentences or early parole (due in large part to a commutation of sentences issued by the High Commissioner for Germany on January 31, 1951).91 By 1963, including unilateral trials beyond the NMT, the USG had tried 1184 Germans in its Zone of Occupation, sentencing 450 of them to capital punishment.92 Other Allied states produced comparable or, in the case of the Soviet Union, much greater numbers. In total, the British convicted 1085, sentencing 240 to death; the French convicted 2107, sentencing 104 to death; and the Soviets independently tried approximately 10,000 Germans, sentencing an unknown (but presumably large) number of them to death.93

Despite the efforts of Jackson, Taylor, and others, the Allied powers failed to hold accountable many of the worst suspected atrocity perpetrators from WWII. One reason was that some of the Allied powers either declined to prosecute these suspects themselves or refused to hand them over to one of the Allied powers that was willing and able to do so. For example, despite U.S. efforts, the Soviets chose not to hold accountable some of the staff from the Nazi concentration and death camps that they held in their Zone of Occupation.94

The debate within the USG about the utility, legality, and morality of these subsequent trials did not cease once the decision to pursue them was made, however. Several members of the U.S. Congress, including Senators Joseph McCarthy, William Langer, Robert Taft,95 and Congressman John Rankin; some members of the judicial branch, including U.S. Supreme Court Chief Justice Harlan Stone, his colleague William Douglas, and Iowa Supreme Court Justice Charles Wennerstrum, who also served as a presiding judge in one of the NMT cases; various academics, including political realist Hans J. Morgenthau; and the editorial boards of several newspapers (including “liberal” media outlets), such as the Chicago Tribune and the Nation, denounced the Nuremberg trials for assorted reasons, including that they were part of a Communist plot.96 General political will to support the Nuremberg trials also diminished over time as a result of other pressing international affairs of the era. As scholar Robert Conot reports: “By 1949 the Cold War had undermined any further inclination for prosecution, and the next year the start of the Korean War completed the process of diverting the world’s attention.”97 Although these developments would signal the NMT’s end, unilateral domestic prosecutions by willing states would continue on an ad hoc basis against Nazis and their collaborators, including Klaus Barbie, John Demjanjuk, Eichmann, Alfons Goetzfried, Karl Hass, Rudolf Hoess, Maurice Papon, Erich Priebke, Dinko Sakic, Anthony Sawoniuk, and Josef Schwammberger.98

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