January 1942: Declaration of St. James’s
The first critical diplomatic step occurred on January 13, 1942, at approximately the same time the USG began interning Japanese-Americans and exactly one week before the Nazi leadership formulated its so-called Wannsee Protocol, which detailed the “final solution of the European Jewish question.”1 That day, the Inter-Allied Commission on the Punishment of War Crimes, comprising representatives of the nine governments-in-exile in London (Belgium, Czechoslovakia, France, Greece, Luxembourg, The Netherlands, Norway, Poland, and Yugoslavia), issued its Declaration of St. James’s, in which the signatories stated that they would
Place amongst their principal war aims punishment through the channel of organized justice of those guilty of or responsible for these crimes, whether they have ordered them, perpetrated them[,] or in any way participated in them;
Determine in the spirit of international solidarity to see to it that (A) those guilty and responsible, whatever their nationality, are sought for, handed over to justice [,] and judged; (B) that sentences pronounced are carried out.2
In July 1942, the United States, the United Kingdom, and the Soviet Union approved the Declaration of St. James’s;3 FDR and Churchill declared that suspected Nazi war criminals would stand trial; and the Soviet leader, Joseph Stalin, specifically mentioned that these trials would occur through “a special international tribunal.”4 A month later, the USG used even more explicit language, calling for trials of suspected atrocity perpetrators. FDR declared on August 21, 1942:
When victory has been achieved, it is the purpose of the Government of the United States, as I know it is the purpose of each of the United Nations, to make appropriate use of the information and evidence in respect to these barbaric crimes of the invaders in Europe and in Asia. It seems only fair that they should have this warning that the time will come when they shall have to stand in courts of law in the very countries which they are now oppressing and answer for their acts.5
Consequently, by the summer of 1942, the Allies had publicly committed to a collaborative scheme for addressing Nazi atrocities during WWII.6 The specific transitional justice option they would jointly implement remained vague and undecided, but, at least according to FDR, included prosecution (and corresponding punishment).
At the same time, a crucial development occurred within the United States. From July 29 to 30, 1942, the U.S. Supreme Court heard oral arguments on whether it was legal, according to the U.S. Constitution and other American laws, for the USG to detain German spies for trial by military commissions that FDR had established. The Court rendered its decision on July 31, 1942, holding that the USG lawfully detained the petitioners and lawfully constituted military commissions. The decision also stated that the U.S. president possessed authority to order the petitioners’ trial by the commissions for their alleged offenses.7 The path was thus cleared for the USG to lawfully exercise the option of using military tribunals to hold accountable individuals suspected of committing atrocities during WWII and beyond.