Nuremberg: A Fair Trial? A Dangerous Precedent

"If in the end there is a generally accepted view that Nuremberg was an example of high politics masquerading as law, then the trial instead of promoting may retard the coming of the day of world law."
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The Nuremberg War Trial has a strong claim to be considered the most significant as well as the most debatable event since the conclusion of hostilities. To those who support the trial it promises the first effective recognition of a world law for the punishment of malefactors who start wars or conduct them in bestial fashion. To the adverse critics the trial appears in many aspects a negation of principles which they regard as the heart of any system of justice under law.

This sharp division of opinion has not been fully aired largely because it relates to an issue of foreign policy upon which this nation has already acted and on which debate may seem useless or, worse, merely to impair this country's prestige and power abroad. Moreover, to the casual newspaper reader the long-range implications of the trial are not obvious. He sees most clearly that there are in the dock a score of widely known men who plainly deserve punishment. And he is pleased to note that four victorious nations, who have not been unanimous on all post-war questions, have, by a miracle of administrative skill, united in a proceeding that is overcoming the obstacles of varied languages, professional habits, and legal traditions. But the more profound observer is aware that the foundations of the Nuremberg trial may mark a watershed of modern law.

Before I come to the discussion of the legal and political questions involved, let me make it clear that nothing I may say about the Nuremberg trial should be construed as a suggestion that the individual Nuremberg defendants or others who have done grievous wrongs should be set at liberty. In my opinion there are valid reasons why several thousand Germans, including many defendants at Nuremberg, should either by death or by imprisonment be permanently removed from civilized society. If prevention, deterrence, retribution, nay even vengeance, are ever adequate motives for punitive action, then punitive action is justified against a substantial number of Germans. But the question is: Upon what theory may that action properly be taken?

The starting point is the indictment of October 18, 1945, charging some twenty individuals and various organizations, in four counts, with conspiracy, crimes against peace, war crimes, and crimes against humanity. Let me examine the offenses that are called in Count 3 of the indictment "war crimes," in the strict sense.

It is sometimes said that there is no international law of war crimes. But most jurists would agree that there is at least an abbreviated list of war crimes upon which the nations of the world have agreed. Thus in Articles 46 and 47 of the Hague Convention of 1907 the United States and many other countries accepted the rules that in an occupied territory of a hostile state "family honour and rights, the lives of persons, and private property, as well as religious conviction and practice, must be respected. Private property cannot be confiscated. Pillage is formally forbidden." And consistently the Supreme Court of the United States has recognized that rules of this character are part of our law. In short, there can be not doubt of the legal right of this nation, prior to the signing of a peace treaty to use a military tribunal for the purpose of trying and punishing a German if, as Count 3 charges, in occupied territory he murdered a Polish civilian, or tortured a Czech, or raped a Frenchwoman, or robbed a Belgian. Moreover, there is no doubt of the military tribunal's parallel right to try and to punish a German if he has murdered, tortured, or maltreated a prisoner of war.

In connection with war crimes of this sort there is only one question of law worth discussing here: Is it a defense to a soldier or civilian defendant that he acted under the order of a superior?

The defense of superior orders is, upon the authorities, an open question. Without going into details, it may be said that superior orders have never been recognized as a complete defense by German, Russian, or French law, and that they have not been so recognized by civilian courts in the United States or the British Commonwealth of Nations, but they tend to be taken as a complete excuse by Anglo-American military manuals. In this state of the authorities, if the International Military Tribunal in connection with a charge of a war crime refuses to recognize superior orders as a defense, it will not be making a retroactive determination or applying an ex post facto law. It will be merely settling an open question of law as every court frequently does.

The refusal to recognize the superior-order defense not only is not repugnant to the ex post facto principle, but is consonant with our ideas of justice. Basically, we cannot admit that military efficiency is the paramount consideration. And we cannot even admit that individual self-preservation is the highest value. This is not a new question. Just as it is settled that X is guilty of murder if, in order that he and Y, who are adrift on a raft, may not die of starvation, he kills their companion, Z; so a German soldier is guilty of murder if, in order that he may not be shot for disobedience and his wife tortured in a concentration camp, he shoots a Catholic priest. This is hard doctrine, but the law cannot recognize as an absolute excuse for a killing that the killer was acting under compulsion--for such a recognition not only would leave the structure of society at the mercy of criminals of sufficient ruthlessness, but also would place the cornerstone of justice on the quicksand of self-interest.

Of course, there always remains the fundamental separateness of the problem of guilt and the problem of treatment. And no one would expect a tribunal to mete out its severest penalty to a defendant who yielded to wrongdoing only out of fear of loss of his life or his family's.

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