It follows, therefore, that we should now pause at the threshold of this trial to make clear the authority under and by which we act, and the time honored standards under which we shall assert and prove the guilt of these defendants.
A concise review of recent history will be helpful and therefore proper.
On 30 October 1943 Prime Minister Churchill, Premier Stalin, and President Roosevelt issued their Moscow Declaration. That part which is pertinent to an understanding of what we do here reads as follows:
“The above Declaration is without prejudice to the case of the major criminals whose offenses have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies.”[40]
It is clear that those criminals whose offenses have no particular geographical localization, are to be “punished,” not necessarily tried, by the “joint decision,” not necessarily a joint or international tribunal, of the Allies. The basic policy to punish is thus clearly laid down.
Thereafter, the same three powers met at Potsdam after the unconditional surrender of Germany. At this meeting representatives of the French nation also participated. There agreements and understandings relative to the future policies to be pursued by those governments toward Germany and war criminals were reached. Two of them should be recalled, because they throw light upon the stature and the international character of this Tribunal and also of the purpose behind the definition of the crimes for the commission of which these defendants have been indicted and are being tried.
In the statement released at Potsdam on 2 August 1945, they said:
“The three governments have taken note of the discussions which have been proceeding in recent weeks in London * * * with the view to reaching agreement on the methods of trial of those major war criminals whose crimes under the Moscow Declaration of October 1943 have no particular geographical localization, * * * they regard it as a matter of great importance that the trial of those major criminals shall begin at the earliest possible date.”
We thus see that the three powers have now advanced from their thinking at Moscow, in that they have determined the method by which these criminals are to be “punished.” But the method of trial is still to be the result of the “joint decision” of the powers who signed the Moscow Declaration, concurred in by the representatives of the French nation. The decision to try by judicial proceeding came six days later at London.
But another significant decision was reached at Potsdam. The powers concerned reached agreement on “The Political and Economic Principles to Govern the Treatment of Germany in the Initial Control Period.” Among these we find the following which are pertinent to an understanding of what we do here.