This chapter discusses the historic antecedents to modern day international criminal tribunals. It begins with a discussion of the post-World War I 1919 International Commission on the Responsibility of the Authors of the War and the failure to prosecute Kaiser Wilhelm Hohenzollern, despite the Treaty of Versailles providing for such an arraignment. It then turns to the experience of World War II, and the adoption of the London Charter, which formed the basis of the Nuremberg International Military Tribunal (IMT). It describes the operation and convictions of the IMT, followed by an assessment of the critiques which label this tribunal as an example of victor’s justice. It then turns to the operation and convictions of the International Military Tribunal for the Far East in Tokyo, and assesses critiques that this tribunal also was an example of victor’s justice. The chapter concludes by consider domestic prosecutions of World War II crimes, both under Control Council Law No. 10 and through military commissions in the Pacific sphere.

Hans Kelsen’s interventions in the law of the Nuremberg trials have remained unexplored with the exception of notes in passim or a couple of brief studies. International criminal law, is true, was not Kelsen’s main object of study. However, the events culminating in Nuremberg, both the shocking Nazi policies and that Kelsen was an émigré in the United States were instrumental to precipitate his close engagement with international criminal law during the dawn years between 1942 and 1945. This chapter introduces the man and his ideas, traces elements of the pure theory that relate to the principle of individual criminal responsibility and, with the help of hitherto unknown archival material, describes for the first time Kelsen’s personal participation in the preparations of Nuremberg and the history behind his absence from the International Military Tribunal. The chapter concludes with a selection of two aspects of Kelsen’s activities as a legal advisor for the US War Crimes Commission: first, his insistence on the need for an international treaty as the legal basis of the IMT in order to avoid victors’ justice and problems of jurisdiction; second, his contribution towards the inclusion of individual criminal responsibility in the London Agreement.

This chapter outlines Allied efforts at justice for Nazi crimes. It describes how the International Military Tribunal at Nuremberg prioritized the prosecution of aggressive war and rendered Nazi atrocities secondary. The chapter then analyzes how subsequent American trials at Nuremberg did focus on Nazi atrocities, but how the defense attorneys successfully shaped the German public perception of the trials, so that they largely failed in their liberalizing pedagogy. The chapter also evaluates the national trial programs conducted by the Americans, British, French, and Soviets for “ordinary” German war crimes. It argues that these trials received only modest public attention, in comparison to the Nuremberg trials, and that, because these trials were focused overwhelmingly on crimes against Allied nationals, they had very limited impact on German political culture. Overall, the chapter concludes that the Allied trials did not have the kind of democratizing impact suggested by transitional justice theory.

Chapter 2 examines the practice of internment, from initial arrests through to the closure of the camps. It details how large numbers of internees were arrested through mandatory registrations, raids, or targeted or more random arrests. It then charts how, and how quickly, they were categorized, processed, and released or transferred to another status. The chapter shows that the western powers began releasing significant numbers in 1946, whereas the Soviets did not until 1948. Nevertheless, the chapter argues that the nature and even the speed of internees’ processing differed less than is often assumed. In all zones, internment was distinct from formalized denazification procedures and only a small proportion of internees were tried for individual crimes. Many more were released through administrative processes and various amnesties, often for political reasons. Soviet processes differed primarily in not affording internees opportunities to plead their case or defend themselves with due process. The chapter’s final section confirms the importance of political and broadly defined security considerations in the western zones by discussing the treatment of internees and their families in the context of French deportations from the Saarland in 1946–7 and a British settlement for ‘dangerous’ militarists and Nazis in 1947–8.