I turn now to Count 2 of the indictment, which charges "crimes against peace." This is the count that has attracted greatest interest. It alleges that the defendants participated "in the planning, preparation, initiation and waging of wars of aggression, which were also wars in violation of international treaties, agreements and assurances."
This charge is attacked in many quarters on the ground it rests on ex post facto law. The reply has been that in the last generation there has accumulated a mounting body of international sentiment which indicates that wars of aggression are wrong and that a killing by a person acting on behalf of an aggressor power is not an excusable homicide. Reference is made not only to the Briand-Kellogg Pact of August 27, 1928, but to deliberations of the League of Nations in 1924 and subsequent years--all of which are said to show an increasing awareness of a new standard of conduct. Specific treaties outlawing wars of aggression are cited. And, having regard to the manner by which all early criminal law evolves and the manner by which international law grows, it is claimed that now it is unlawful to wage an aggressive war and it is criminal to aid in preparing for such a war, whether by political, military, financial, or industrial means.
One difficulty with that reply is that the body of growing custom to which reference is made is custom directed at sovereign states, not at individuals. There is no convention or treaty which places obligations explicitly upon an individual not to aid in waging an aggressive war. Thus, from the point of view of the individual, the charge of a "crime against peace" appears in one aspect like a retroactive law. At the time he acted, almost all informed jurists would have told him that individuals who engaged in aggressive war were not in the legal sense criminals.
Another difficulty is the possible bias of the Tribunal in connection with Count 2. Unlike the crimes in Counts 3 and 4, Count 2 charges a political crime. The crime which is asserted is tried not before a dispassionate neutral bench, but before the very persons alleged to be victims. There is not even one neutral sitting beside them.
And what is most serious is that there is doubt as to the sincerity of our belief that all wars of aggression are crimes. A question may be raised whether the United Nations are prepared to submit to scrutiny the attack of Russia on Poland, or on Finland or the American encouragement to the Russians to break their treaty with Japan. Every one of these actions may have been proper, but we hardly admit that they are subject to international judgment.
These considerations make the second count of the Nuremberg indictment look to be of uncertain foundation and uncertain limits. To some the count may appear as nothing more than the ancient rule that the vanquished are at the mercy of the victor. To others it may appear as the mere declaration of an always latent doctrine that the leaders of a nation are subject to outside judgment as to their motives in waging war.
The other feature of the Nuremberg indictment is Count 1, charging a "conspiracy." Paragraph III of the indictment alleges that the "conspiracy embraced the commission of Crimes against Peace;...it came to embrace the commission of War Crimes...and Crimes against Humanity."
In international as well as in national law there may be for almost any crime what the older lawyers would have called principal offenders and accessories. If Adolph is determined to kill Sam, and talks the matter over with Berthold, Carl, and Dietrich, and Berthold agrees to borrow the money to buy a pistol, and Carl agrees to make a holster for the pistol, and all of them proceed as planned and then Adolph gives the pistol and holster to Dietrich, who goes out alone and actually shoots Sam without excuse, then, of course, Adolph, Berthold, Carl, and Dietrich are all guilty of murder. They should not be allowed to escape with the plea Macbeth offered for Banquo's murder, "Thou canst not say I did it."
If the conspiracy charge in Count 1 meant no more than that those are guilty who plan a murder and with knowledge finance and equip the murderer, no one would quarrel with the count. But it would appear that Count 1 meant to establish some additional separate substantive offense of conspiracy. That is, it asserts that there is in international law a wrong which consists in acting together for an unlawful end, and that he who joins in that action is liable not only for what he planned, or participated in, or could reasonably have foreseen would happen, but is liable for what every one of his fellows did in the course of the conspiracy. Almost as broad a doctrine of conspiracy exists in municipal law.
But what is the basis for asserting so broad a substantive crime exists in the international law? Where is the treaty, the custom, the academic learning on which it is based? Is this not a type of "crime" which was first described and defined either in London or in Nuremberg sometime in the year 1945?
Aside from the fact that the notion is new, is it not fundamentally unjust? The crime of conspiracy was originally developed by the Court of Star Chamber on the theory that any unlicensed joint action of private persons was a threat to the public, and so if the action was in any part unlawful it was all unlawful. The analogies of the municipal law of conspiracy therefore seem out of place in considering for international purposes the effect of joint political action. After all, in a government or other large social community there exists among the top officials, civilian and military, together with their financial and industrial collaborators, a kind of over-all working arrangement which may always be looked upon, if its invidious connotation be disregarded, as a "conspiracy." That is, government implies "breathing together." And is everyone who, knowing the purposes of the party in power, participates in government or joins with officials to be held for every act of the government?
To take a case which is perhaps not so obvious, is everyone who joins a political party, even one with some illegal purposes, to be held liable to the world for the action that every member takes, even if that action is not declared in the party platform an was not known to or consented to by the person charged as a wrongdoer? To put upon any individual such responsibility for action of the group seems literally to step back in history to a point before the prophet Ezekiel and to reject the more recent religious and democratic teachings that guilt is personal.