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Anyone tempted to get indignant on learning for the first time today that Winston Churchill proposed shooting leading Nazis in 1945 rather than putting them on trial should first ponder the fact that how the allies eventually treated their defeated enemies at Nuremberg was widely criticised at the time as victors' justice, a lynching party even. Courts can always be pretty rough places, that's still obvious in 2012.
As Ian Cobain reports, the war-time prime minister had long thought that Hitler and his henchfolk should be bumped off if caught alive, the law being squared if necessary by an act of attainder passed in parliament. Stalin and Roosevelt thought trials would be better – FDR because that's what US public opinion would want, Stalin because he had extensive experience of the value of show trials for propaganda purposes.
What the newly released papers don't appear to confirm is that at their Tehran conference in 1943 – Iran was a divided Soviet-UK zone of influence – Stalin had proposed shooting 50,000 to 100,000 German officers, the sort of thing he'd done to the Poles in the Katyn Forest in 1940.
FDR joked that perhaps 49,000 would do, but Churchill, a former fighting soldier himself, recoiled in horror that soldiers would be shot for doing their duty by their country – he'd rather be "taken out into the courtyard and shot" himself. Later in the war FDR's heart hardened when, at Yalta, he saw for himself what German occupation had done.
In the event, 23 top Nazis were initially tried in 1945-46 – including Göring, whose suicide pill cheated the hangman – and sentenced, 12 to death, seven to prison and three acquitted. Martin Bormann was absent, never caught despite repeated claims by the London tabloids. Two hundred or so lesser officials and soldiers were tried later at Nuremberg, 2,000 in normal courts. The basics are all here. Similar trials were held in Tokyo.
It all fitted the public's angry, understandable desire for retribution against those who had launched a war that caused so much death and destruction, far more savage than had been realised until the post-war debris was assessed. Nuremberg became the precedent for all sorts of international jurisdiction, up to and including the international criminal court (ICC), most of it welcome, little of it free of controversy.
But right from the start there was always unease. Harlan Fiske Stone, a member of the US supreme court, said Robert Jackson, the chief US prosecutor, was away "conducting his high-grade lynching party in Nuremberg". Not that Stone minded what was done to the Nazis, he just didn't want justice to be tainted by it in fraudulent trials.
Why? Because all sorts of indefensible things had to be conceded. Some of the charges were retrospective; others should have been levied against the Soviets who had taken part in the invasion and partition of Poland – the cause of the war in 1939 – and done dreadful things both at home and abroad. It presented false testimony to cover up complicity. Normally inadmissible evidence was admitted, no appeals were allowed. And plenty more.
So perhaps Churchill's plan for summary executions had the merit of lacking hypocrisy, unacceptable though it was in the new world of international war emerging from the ruins of 1945. But international tribunals of one kind or another remain open to the charges of partiality, of victors' justice. Serbian defendants at The Hague routinely complain about it; critics of Tony Blair and George Bush, who led the 2003 invasion of Iraq, say they should be in the dock there, too.
The charge of "substituting power for principle" – made about Nuremberg in 1945 – lingers on. Imperfect justice is better than anarchy or the assertion that might is right, the prevailing principle for most of humanity during most of recorded history.
But it's always messy. If you missed Conrad Black's interview with Newsnight's Jeremy Paxman this week you will enjoy it. In a series of interviews on his return to Britain, the jailed Daily Telegraph tycoon is spectacularly self-deluding as well as abusive. Paxo can – and does – defend himself with ease, against a more appropriate target for his disdain than young female Treasury ministers.
Yet Black's attack on the US justice system (a "fraudulent, fascistic conveyor belt of a corrupt system") and its propensity to lock people up – it has 5% of the world's population but 20% of its prisoners – is not something merely to be shrugged off.
News that Christopher Tappin, the British businessman accused of breaking the arms embargo to Iran, is close to doing a plea-bargaining deal with prosecutors in Houston, Texas (he was extradited), which may save him years in a brutish prison.
Is that justice? I don't know, but one of the NatWest Three – convicted in similar circumstances in the US – is quoted as saying that a US prosecutor can become "judge, jury and executioner" by threatening a suspect with heinous charges but settling for a quick and cheap compromise. As Black points out to Paxo, US conviction rates are very high.
Closer to home I wasn't wildly enthusiastic at the prosecution of PC Alex MacFarlane for what is called a racially aggravated public order offence – you can read the case here – on the basis of what I have read in the Guardian. As I often remind readers, you have to have been in court to understand exactly what happened, but two juries failed to agree and the authorities have now given up.
Some people will think the failure to convict an outrage, others will be outraged that the case was ever brought. Meanwhile I'd love to know why the Belgian authorities imposed a news blackout on the shooting of British oil executive, Nicholas Moxford, outside a Brussels restaurant on 14 October – almost two weeks ago.
A shooting in a street is a secret? Well, well. But justice is funny stuff. We strive for enforceable international laws and standards, but we all do it our own way.
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