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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In addition to "war crimes," the indictment, in Count 4, charges the defendants with "crimes against humanity." This count embraces the murder, torture, and persecution of minority groups, such as Jews, inside Germany both before and after the outbreak of war. It is alleged in paragraph X of the indictment that these wrongs "constituted violations of international conventions, of internal penal laws, of the general principles of criminal law as derived from the criminal law of all civilized nations and were involved in and part of a systematic course of conduct."

I shall pass for the time being the last phrase just quoted, for that is merely a way of saying that the Nazis persecuted the minority German groups to harden the German will for aggression and to develop an issue that would divide other countries. In other words, the legal validity of that phrase rests upon the same considerations as the validity of the charge of "crimes against the peace."

I consider first the legal validity of the other phrases upon which is premised the charge that murdering, torturing, and persecuting German Jews and other non-Nazis from 1933 to 1939 as well as from 1939 to 1945 are crimes. And before I say anything of the legal question, let me make it abundantly clear that as a human being I regard these murders, tortures, and persecutions as being morally quite as repugnant and loathsome as the murders, tortures, and persecutions of the civilian and military personnel of American and Allied nations.

In paragraph X of the indictment, reference is first made to "international conventions." There is no citation of any particular international convention which in explicit words forbids a state or its inhabitants to murder its own citizens, in time either of war or of peace. I know of no such convention. And I, therefore, conclude that when the draftsman of the indictment used the phrase "international conventions" he was using the words loosely and almost analogously with the other phrase, "general principles of criminal law as derived from the criminal law of all civilized nations." He means to say that there exists, to cover the most atrocious conduct, a broad principle of universal international criminal law which is according to the law of most penal codes and public sentiment in most places, and for violations of which an offender may be tried by any new court that one or more of the world powers may create.

If that were the only basis for the trial and punishment of those who murdered or tortured German citizens, it would be a basis that would not satisfy most lawyers. It would resemble the universally condemned Nazi law of June 28, 1935, which provided: "Any person who commits an act which the law declares to punishable or which is deserving of penalty according to the fundamental conceptions of the penal law and sound popular feeling, shall be punished." It would fly straight in the face of the most fundamental rules of criminal justice--that criminal laws shall not be ex post facto and that there shall be *nullum crimen et nulla poena sine lege*--no crime and no penalty without an antecedent law.

The feeling against a law evolved after the commission of an offense is deeply rooted. Demosthenes and Cicero knew the evil of retroactive laws: philosophers as diverse as Hobbes and Locke declared their hostility to it; and virtually every constitutional government has some prohibition of ex post facto legislation, often in the very words of Magna Carta, or Article I of the United States Constitution, or Article 8 of the French Declaration of Rights. The antagonism to ex post facto laws is not based on a lawyer's prejudice encased in a Latin maxim. It rests on the political truth that if a law can be created after an offense, then power is to that extent absolute and arbitrary. To allow retroactive legislation is to disparage the principle of constitutional limitation. It is to abandon what is usually regarded as one of the essential values at the core of our democratic faith.

But, fortunately, so far as concerns murders of German minorities, the indictment was not required to invent new law. The indictment specifically mentions "internal penal laws." And these laws are enough in view of the way the question would arise in a criminal proceeding.

Under universally accepted principles of law, an occupying belligerent power may and indeed often does establish its own tribunals to administer the domestic law of the occupied country for the inhabitants. Thus if Adolph killed Berthold before the American Army occupied Munich, it would be normal for the United States government to set up a military tribunal to try and punish Adolph.

But suppose Adolph raised as a defense the contention that he was acting pursuant to orders form superiors which were the law of Germany. If that defense were raised, and if we assume (contrary to what some German jurists tell us) that in Germany there were on the statute books pertinent exculpatory laws, nonetheless under well-known principles of German law, going back to the middle Ages and differing from current Anglo-American theories, the superior order could be disregarded by a court applying German law, on the ground that it was so repugnant to "natural law" as to be void. That is, perhaps a German tribunal or one applying German law can disregard an obviously outrageous statute or executive order as offensive to natural law just as the Supreme Court of the United States can disregard a statute or executive order as offensive to the United States Constitution.

But further suppose that Adolph raised as a defense the point that the wrong was so old as to be barred by some statute of limitations. If there is such a statute in Germany, the limitation may be set aside without involving any violation of the ex post facto principle. As our own Supreme Court has pointed out, to set aside a statue of limitation is not to create a new offense.

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