Diaries of a wartime British spy, released a few days ago, provide further insight into the origins of the Nuremberg Trial. According to a report in Friday’s Guardian, Guy Liddell was supportive of a plan prepared by the Director of Public Prosecutions, Sir Theobald Mathew, whereby selected Nazis would be ‘bumped off’ rather than put on trial following a report from a commission of inquiry.
On 21 June 1945, Liddell dictated a diary entry to his secretary about a visit to his office by a British War Crimes Executive official, and representatives of MI6 and the Special Operations Executive, looking for evidence to support a war crimes prosecution."Personally I think the whole procedure is quite dreadful. The DPP had recommended that a fact-finding committee should come to the conclusion that certain people should be bumped off and that others should receive varying terms of imprisonment, that this should be put to the House of Commons and that the authority should be given to any military body finding these individuals in their area to arrest them and inflict whatever punishment had been decided on. This was a much clearer proposition and would not bring the law into disrepute."Winston had put this forward at Yalta but Roosevelt felt that the Americans would want a trial. Joe supported Roosevelt on the perfectly frank grounds that Russians liked public trials for propaganda purposes. It seems to me that we are just being dragged down to the level of the travesties of justice that have been taking place in the USSR for the past 20 yrs."In July 1946, Liddell flew to Nuremberg with the deputy head of MI5, Oswald Harker, to watch the prosecution of 21 senior Nazis, including Hermann Göring ("considerably reduced in size") and Albert Speer ("probably one of the ablest in the dock").There, he felt his fear that the tribunals would be little better than show trials had been confirmed. "One cannot escape the feeling that most of the things the 21 are accused of having done over a period of 14 years, the Russians have done over a period of 28 years. This adds considerably to the somewhat phoney atmosphere of the whole proceedings and leads me to the point which in a way worries me most, namely, that the court is one of the victors who have framed their own charter, their own procedure and their own rules of evidence in order to deal with the vanquished."
Liddell did not want the Nazis prosecuted for waging a war of aggression. "One cannot help feeling ... a dangerous precedent is being created," he said.
Liddell’s diary is interesting but the existence of such intentions in the British government is hardly some revelations. The records of the London Conference, edited by Robert Jackson and published by the US Government, and readily available (even on the internet, in pdf version) show a British aide mémoire to the United States on 23 April 1945:
1. H.M.G. assume that it is beyond question that Hitler and a number of arch-criminals associated with him (including Mussolini) must, so far as they fall into Allied hands, suffer the penalty of death for their conduct leading up to the war and for the wickedness which they have either themselves perpetrated or have authorized in the conduct of the war. It would be manifestly impossible to punish war criminals of a lower grade by a capital sentence pronounced by a Military Court unless the ringleaders are dealt with with equal severity. This is really involved in the concluding sentence of the Moscow Declaration on this subject, which reserves for the arch-criminals whose offences have no special localization treatment to be determined in due course by the Allies.2. It being conceded that these leaders must suffer death, the question arises whether they should be tried by some form of tribunal claiming to exercise judicial functions, or whether the decision taken by the Allies should be reached and enforced without the machinery of a trial H.M.G. thoroughly appreciate the arguments which have been advanced in favour of some form of preliminary trial But H.M.G. are also deeply impressed with the dangers and difficulties of this course, and they wish to put before their principal Allies, in a connected form, the arguments which have led them to think that execution without trial is the preferable course.3. The central consideration for deciding this difficult choice must, in H.M.G.'s view, be reached by asking-what is the real charge which Allied people and the world as a whole makes against Hitler. It is the totality of his offences against the international standard which civilised countries try to observe which makes him the scoundrel that he is. If he were to be indicted for these offences in the manner that is necessary for reasons of justice in a criminal court, and if his fate is to be determined on the conclusion reached by the tribunal as to the truth of this bundle of charges and the adequacy of the proof, it seems impossible to conceive that the trial would not be exceedingly long and elaborate. He, of course, must have in such a trial all the rights properly conceded to an accused person. He must be defended, if he wishes, by counsel, and he must call any relevant evidence. According to British ideas, at any rate, his defence could not be forcibly shut down or limited because it involves a great expenditure of time. There is nothing upon which British opinion is more sensitive in the realm of criminal procedure than the suspicion that an accused person - whatever the depths of his crime - has been denied his full defence.4. There is a further consideration which, in the view of H.M.G. needs to be very carefully weighed. If the method of public trial were adopted, the comment must be expected from the very start to be that the whole thing is a "put-up job" designed by the Allies to justify a punishment they have already resolved on. Hitler and his advisers - if they decide to take part and to challenge what is alleged - may be expected to be very much alive to any opportunity of turning the tables. Public opinion as the trial goes on is likely to weary at the length of the process. It is difficult to think that anybody would in the course of time look on Hitler as an injured man, but it is by no means unlikely that a long trial will result in a change of public feeling as to the justification of trying Hitler at all. Will not some people begin to say "The man should be shot out of hand" ~ And if in the complicated and novel procedure which such a trial is bound to adopt-for Russian, American and British ideas must in some way be amalgamated-the defence secured some unexpected point, is there not a danger of the trial being denounced as a farce ~5. There is a further point. Reference has been made above to Hitler's conduct leading up to the war as one of the crimes on which the Allies would rely. There should be included in this the unprovoked attacks which, since the original declaration of war, he has made on various countries. These are not war crimes in the ordinary sense, nor is it at all clear that they can properly be described as crimes under international law. These would, however, necessarily have to be part of the charge and if the tribunal had - as presumably they would have - to proceed according to international law, an argument, which might be a formidable argument, would be open to the accused that this part of the indictment should be struck out. It may well be thought by some that these acts ought to be regarded as crimes under international law. Under the procedure suggested this would be a matter for the tribunal, and would at any rate give the accused the opportunity of basing arguments on what has happened in the past and what has been done by various countries in declaring war which resulted in acquiring new territory, which certainly were not regarded at the time as crimes against international law.6. H.M.G. earnestly hope that their Allies will consider the arguments set out above for they are most anxious that a very early agreement should be reached as to the method of dealing with Hitler and his chief associates, and that the method should be one in which the principal Allies concur. It would in any case be valuable if a document could now be drawn up giving the reasoned basis for the punishment of the men concerned.