Turning now from the legal basis of the indictment, I propose briefly to consider whether, quite apart from legal technicalities, the procedure of an international military tribunal on the Nuremberg pattern is a politically acceptable way of dealing with the offenders in the dock and those others whom we may legitimately feel should be punished.
The chief arguments usually given for this quasi-judicial trial are that it gives the culprits a chance to say anything that can be said on their behalf, that it gives both the world today and the world tomorrow a chance to see the justice of the Allied cause and the wickedness of the Nazis', and that it sets a firm foundation for a future world order wherein individuals will know that if they embark on schemes of aggression or murder or torture or persecution they will be severely dealt with by the world.
The first argument has some merit. The defendants, after hearing and seeing the evidence against them, will have an opportunity without torture and with the aid of counsel to make statements on their own behalf. For us and for them this opportunity will make the proceeding more convincing. Yet the defendants will not have the right to make the type of presentation that at least English-speaking persons have thought the indispensable concomitant of a fair trial. No one expects that Ribbentrop will be allowed to summon Molotov to disprove the charge that in invading Poland Germany started an aggressive war. No one anticipates that the defense, if it has the evidence, will be given as long a time to present its evidence as the prosecution takes. And there is nothing more foreign to those proceedings than either the presumption that the defendants are innocent until proved guilty or the doctrine that any adverse public comment on the defendants before the verdict is prejudicial to their receiving a fair trial. The basic approach is that these men should not have a chance to go free. And that being so, they ought not to be tried in a court of law.
As to the second point, one objection is purely pragmatic. There is a reasonable doubt whether this kind of trial, despite the voluminous and accessible record it makes, persuades anyone. It brings out new evidence, but does it change men's minds? Most reporters say that the Germans are neither interested in nor persuaded by these proceedings, which they regard as partisan. They regard the proceedings not as marking a rebirth of law in Central Europe but as a political judgment on their former leaders. The same attitude may prevail in future because of the departure from accepted legal standards.
A more profound objection to the second point is that to regard a trial as a propaganda device is to debase justice. To be sure, most trials do and should incidentally educate the public. Yet any judge knows that if he, or counsel, or the parties regard a trial primarily as a public demonstration, or even as a general inquest, then there enter considerations which would otherwise be regarded as improper. In a political inquiry and even more in the spread of propaganda, the appeal is likely to be to the unreflecting thought and the deep-seated emotions of the crowd untrammeled by any fixed standards. The objective is to create outside the courtroom a desired state of affairs. In a trial the appeal is to the disinterested judgment of reasonable men guided by established precepts. The objective is to make inside the courtroom a sound disposition of a pending case according to settled principles.
The argument that these trials set a firm foundation for a future world legal structure is perhaps debatable. The spectacle of individual liability for a world wrong may lead to future treaties and agreements specifying individual liability. If this were the outcome and if, for example, with respect to wars of aggression, war crimes, and use of atomic energy the nations should agree upon world rules establishing individual liability, then this would be a great gain. But it is by no means clear that this trial will further any such program.
At the moment, the world is most impressed by the undeniable dignity and efficiency of the proceedings and by the horrible events recited in the testimony. But, upon reflection, the informed public may be disturbed by the repudiation of widely accepted concepts of legal justice. It may see too great a resemblance between this proceeding and others which we ourselves have condemned. 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.
Quite apart form the effect of the Nuremberg trial upon the particular defendants involved, there is the disturbing effect of the trial upon domestic justice here and abroad. "We but teach bloody instructions, which being taught, return to plague the inventor." Our acceptance of the notions of ex post facto law and group guilt blunt much of our criticism of Nazi law. Indeed our complaisance may mark the beginning of an age of reaction in constitutionalism in particular and of law in general. Have we forgotten that law is not power, but restraint on power?
If the Nuremberg trial of the leading Nazis should never have been undertaken, it does not follow that we should not have punished these men. It would have been consistent with our philosophy and our law to have disposed of such of the defendants as were in the ordinary sense murderers by individual, routine, undramatic, military trials. This was the course proposed in the speeches of the Archbishop of York, Viscount Cecil, Lord Wright, and others in the great debate of March 20, 1945, in the House of Lords. In such trials the evidence and the legal issues would have a stark simplicity and the lesson would be inescapable.
For those who were not chargeable with ordinary crimes only with political crimes such as planning an aggressive war, would it not have been better to proceed by an executive determination--that is, a proscription directed at certain named individuals? The form of the determination need not have been absolute on its face. It might have been a summary order reciting the offense and allowing the named persons to show cause why they should not be punished, thus giving them a chance to show any mistake of identification or gross mistake of fact.
There are precedents for such executive determination in the cases of Napoleon and of the Boxer rebels. Such a disposition would avoid the inevitably misleading characteristics of the present proceedings, such as a charge presented in the form of an "indictment," the participation of celebrated civil judges and the legal formalities of rulings on evidence and on law. It is these characteristics which may make the Nuremberg trial such a potential danger to law everywhere. Moreover, if it were generally felt that we ought not to take a man's life without the form of a trial, then the executive determination could be limited to imprisonment. The example of Napoleon shows that our consciences would have no reason to be disturbed about the removal from society and the permanent detention of irresponsible men who are a threat to the peace of the world.
To be sure, such an executive determination is ex post facto. Indeed, it is a bill of attainder. To be sure it is also an exhibition of power and not of restraint. But its very merit is its naked and unassumed character. It confesses itself to be not legal justice but political. The truthful facing of the character of our action would make it more certain that the case would not become a precedent in domestic law.
As Lord Digby said in 1641 regarding the Strafford bill of attainder, "There is in Parliament a double Power of Life and Death by Bill, a Judicial Power, and legislative; the measure of the one, is what's legally just; of the other, what is Prudentially and Politickly fit for the good and preservation of the whole. But these two, under favour, are not to be confounded in Judgment: We must not piece up want of legality with matter of convenience, nor the defailance of prudential fitness with a pretence of Legal Justice."
This emphasis on procedural regularity is not legalistic or, as it is sometimes now said, conceptualistic. If there is one axiom that emerges clearly from the history of constitutionalism and from the study of any bill of rights or any charter of freedom, it is that procedural safeguards are the very substance of the liberties we cherish. Not only the specific guarantees with respect to criminal trials, but the general promise of "due process of law," have always been phrased and interpreted primarily in their procedural aspect. Indeed it hardly lies in the mouth of any supporter of the Nuremberg proceedings to disparage such procedural considerations; for may it not be said that the reason that the authors of those proceedings cast them in the form of a trial was to persuade the public that the customary safeguards and liberties were preserved?
It is against this deceptive appearance, big with evil consequences for law everywhere, that as a matter of civil courage all of us, judges as well as lawyers and laymen, however silent we ordinarily are, ought to speak out. It is for their silence on such matters that we justly criticize the Germans. And it is the test of our sincere belief in justice under law never to allow it to be confused with what are merely our interest, our ingenuity, and our power.