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Copyright (c) 1995 United States Air Force Academy Journal of Legal Studies 
USAFA Journal of Legal Studies

ARTICLE: Excerpts from the Nuremberg Trials

1995 / 1996

USAFA Journal of Legal Studies

6 USAFA J. Leg. Stud. 5


Timothy W. Murphy * and Jeff E. Whitfield **


Formation of the International Military Tribunal

With the foreseeable end of the European war in sight, the attention of the allies began to focus on the fate of captured Nazi war leaders. The Moscow Declaration, which had been agreed to by the United States, the United Kingdom, and the Soviet Union in November 1943, established the basic principle that "minor" war criminals would be tried in the nation where their crimes had occurred. That same year, the United States and the United Kingdom had agreed to the establishment of a United Nations War Crimes Commission (UNWCC) which was designed to investigate alleged war crimes by Nazi Germany. At Quebec, Canada, in September 1944, President Roosevelt and Prime Minister Churchill gave preliminary approval to the "Morgenthau Plan," authored by Secretary of the Treasury Henry Morgenthau, Jr., which provided for summary execution of specific Nazi leaders without any process, and the deindustrialization of Germany by the victorious allies. Both Secretary of State Cordell Hull and Secretary of War Henry L. Stimson viewed this plan as extreme, and countered with the argument that democratic states should afford some kind of criminal process even to its enemies.

Acting at the behest of Secretary Stimson, Pentagon attorneys began considering the likelihood of some sort of criminal process for captured Nazi war leaders. The result was the "Bernays Plan," authored by Lt. Col. Murray C. Bernays, of the United States Army. This plan proposed the creation of an international court which would ...

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