Protecting soldiers

Throughout these debates, the Allies were not much hamstrung by what is typically the biggest impediment to the prosecution of war crimes: a terrific reluctance to expose soldiers to unusual risks in order to apprehend suspected war criminals. In January 1943, long before anyone in the White House started thinking seriously about the punishment of war criminals, Roosevelt and Churchill had demanded unconditional surrender from the Axis. When the question of war criminals finally came to the administration’s attention, it therefore seemed that capturing the suspects would not be difficult or require additional risks for American forces. Germany was going to be occupied regardless; no extra risks were required to pursue a firm policy of prosecuting German war criminals.

To be sure, in those rare cases where apprehending war criminals put American troops at unusual risk, America was as eager to protect its soldiers as any other country. Japan did in fact get to impose one term of its surrender, that Hirohito not be dethroned, and certainly not be charged with war crimes. As Stimson noted in his diary, Japan only accepted the Potsdam terms "with the understanding that the said declaration does not comprise any demand which prejudices the prerogatives of his majesty as a sovereign ruler." America was not about to suffer through a devastating land campaign simply in order to try Hirohito. So MacArthur was told not to name Hirohito as a suspected war criminal.

In October 1944, the American Combined Chiefs of Staff wanted their field commanders to run speedy trials of captured war criminals who directly affected security or military operations; otherwise, "principally in order to avoid the danger of reprisals," the suspects were to be caught and tried later. The War Department viewed the Soviet Union’s Kharkov trials, in 1943, with "grave concern ... since it fears that such action during the course of the war may lead to reprisals against American prisoners of war." And the White House was aware of the risks that American prisoners of war might face as Germany grew increasingly desperate.

America was as jealous of its soldiers’ lives as any state. But because of the preexisting policy of unconditional surrender, the question of protecting American lives mostly did not come up during the great White House argument over whether to have trials or not.

"Let somebody else water it down": Morgenthau

Morgenthau was the most prominent American official who did not want war crimes trials. This was not because he did not want punishment. To the contrary, Morgenthau was more outraged than anyone in the cabinet at Nazi atrocities against Jews (Morgenthau was himself Jewish, a point not lost on Stimson). Morgenthau spent much of 1944 bombarding the White House with proposals for harsh treatment of Germany after the war – part and parcel of which was the summary execution of many Nazi war criminals. He had no patience for plodding legalism. His justice was to be swift and terrible.