Having shown why I now believe "the crime of aggressive war" is properly regarded as a substantive offense, I turn to the next doubt which has disturbed me: that is, whether that crime should have been tried before a tribunal composed exclusively of judges of the four major victorious powers. Was it a proper forum?
No one who has read the recent decision of the Supreme Court of the united States in the Yamashita case will find difficulty in concluding that it was according to law to try the defendants in a military rather than a civil tribunal and to try them before judges who were drawn exclusively from the victorious powers. But that conclusion leaves unanswered certain other questions.
While, so far as I am aware, it was legally unobjectionable to have the defendants tried by an English judge or a French judge or an American judge, or any combination of them, can we fairly say it was unobjectionable to have the defendants tried by a Russian judge on the *particular* charge of aggressive war which was presented? Did not the charge refer to an aggressive attack on Poland? And (while deeply sensible of the later horrible sufferings the Russians underwent from an unprovoked attack by Germany on Russia itself) can we say that the Russians (who in advance were apprised of the proposed German attack on Poland and who participated in the division of the spoils resulting from that attack) were suitable persons to participate in judgment upon the charge that the Germans aggressively attacked Poland? This is not an issue (as it is sometimes supposed to be) whether it is just to prosecute one group of criminals (Germans) and not another (Russians). It is the simper issue whether an apparent confederate is to sit in judgment on an alleged criminal.
While it was not legally necessary to have invited neutrals and even distinguished anti-Nazi Germans to sit in judgment at the trial, would it not have been politically wiser to have done so, since the type of issues raised by a charge of the crime of aggressive war, unlike the issues raised by a charge of strict war crimes, are so susceptible of national bias? Would not a tribunal which included some judges free of any connection with the victims of the aggressive attack have furnished a sounder precedent?
To these questions the usual, but not entirely satisfactory, answers are that the authors of the Nuremberg procedure believed that distinguished neutrals would not accept appointment, and that the Russians would not have sat with neutrals.
Two other political, rather than legal, questions remain. First, was it desirable to include this charge in the Nuremberg indictment when there were enough other charges of a more orthodox character upon which the defendants were being tried and were likely to be hanged? Second, was it better to have these defendants tried before a military court or to have them disposed of by a more summary executive procedure?
If the defendants had been tried solely on the grounds that they had engaged in war crimes in the strict sense and in crimes against humanity, the practical result for the men in the dock at Nuremberg would (with the single exception of Hess) have been precisely the same as it actually turned out to be. Hess is the only defendant who was convicted of the crime of aggressive war and the crime of conspiracy but was not convicted of other crimes as well.
Moreover, if the defendants had been tried solely on the grounds that they had engaged in war crimes in the strict sense and in crimes against humanity, there would from the outset have been a far greater degree of unanimity of professional opinion in support of the Nuremberg trial.
There were, however, countervailing considerations, which could well be thought more significant. If the defendants were charged only with the strict war crimes and not with the crime of aggressive war, it would have deeply offended the public sense of justice, for the public regarded the planning of the war as the greatest of crimes. To the general public it would have seemed grossly inappropriate to punish Goring only for killing a few named individuals, and not for starting a war in which millions were killed.
Furthermore, if the powers had not included in the Nuremberg indictment a charge that the defendants had committed the crime of aggressive war, not only would they have missed the opportunity to establish the doctrine that there is a world law against aggressive war, but their very silence and timidity would have weakened the force now, and perhaps for all time, of such declarations as had heretofore been made that aggressive war was outlawed.
There remains for discussion the problem whether it would have been politically wiser to have dealt with the Nuremberg defendants by a proceeding that was not judicial but frankly executive.
Before the Nuremberg trial began, those who, like myself, originally opposed a judicial proceeding stressed the following points, among others. There was a grave danger that the trial itself could not be conducted in an orderly way. The memories of the disturbances of the Laval treason trial and the Washington sedition trial were fresh in men's minds. There seemed no likelihood that the trial would be so arranged that the defendants would be given adequate opportunity to produce evidence and to examine and cross-examine witnesses. There was skepticism as to whether any defendant had a chance to be acquitted, particularly since it appeared that the tribunal might start with a presumption of guilt rather than a presumption of innocence. And it was feared that the tribunal would focus on the propaganda aspects of the trial and would be unduly concerned with the effect of the trial upon the public opinion of the outside world. Cumulatively, these considerations made many commentators doubtful whether the court could act as a court should act. And—though this was less important—it made commentators fear that the trial instead of persuading the Germans of today or tomorrow that our side was just, would persuade them that we were hypocrites disguising vengeance under the facade of legality.
To avoid such dangers, these critics suggested that victorious powers should frankly state that for reasons which would be announced to the world, and which would include a recital of the wrongs the defendants had perpetrated and the menace they still presented, the powers proposed to deny them further liberty and, if necessary, to take their lives. Before such announcement was put into effect, the persons named for punishment would have an adequate opportunity to present any evidence they had that they had been erroneously named or charged with wrongdoing. It was believed that a course so drastic and so plainly premised on an exceptional situation would never be thought, as a trial might be thought, suitable for incorporation in the permanent fabric of domestic systems of justice.
Now that the trial has been held, many of these forebodings are shown to have been wide of the mark. Judged as a court trial, the Nuremberg proceedings were a model of forensic fairness. Lord Justice Lawrence and his associates acted with dignity and firmness and with eyes directed only to such matters as judges ought to consider.
Moreover, the very length of the trial has shown that those who originally favored a summary proceeding had overestimated the knowledge which the Allies had in advance of the trial. A year ago they did not have the specific information necessary promptly to prepare a reliable recital of who were the chief offenders and what were their offenses. Indeed, if it had not been for the trial and the diligent efforts of the staff of able lawyers and investigators, acting promptly and in response to the necessities of legal technique, the important documents in which the defendants convicted themselves might never have been uncovered. Thus the trial gave the victorious powers the adequate record which they required for proper disposition of the defendants and simultaneously gave historians much of the data which the world will require for proper evaluation of the causes and events of World War II.
But the outstanding accomplishment of the trial which could never have been achieved by any more summary executive action, is that it has crystallized the concept that there already is inherent in the international community a machinery both for the expression of international criminal law and for its enforcement. The great powers of the world have agreed that it is in accordance with justice for a group of nations to establish on an ad hoc basis a tribunal, first, to review the state of world opinion on conduct, in order to determine whether that conduct, when it occurred, was so universally condemned as an international wrong that it can be called a "crime"; and second, to apply that determination to individuals.
No doubt such an ad hoc method is not satisfactory as a covenant made by all the powers in advance of wrongful conduct—a covenant describing such conduct, fixing the tribunal which shall try offenders and fixing the penalty which shall be imposed. But until the world is prepared to follow the more satisfactory method, it has every reason to be profoundly grateful to Mr. Justice Jackson and his associates, who, in the face of enormous practical difficulties and widespread theoretical criticisms, persisted until they demonstrated the justice of the ad hoc method adopted at Nuremberg.