The Case Against the Nazi War Criminals

THIS small volume contains the opening statement of Mr. Justice Jackson at the Mar Crimes trial in Nürnberg, the Charter of the International Tribunal before which the defendants are being tried, and the Indictment under which they have been charged - essential materials for intelligent consideration of the principles in issue at Nürnherg. Its publication should serve to focus attention upon the central questions of law and policy which are presented by the Nurnberg proceedings.

The eloquent and persuasive argument of Justice Jackson should finally discredit the lingering legalism which has protected heads of state from prosecution for their violations of the conventional laws of war. It should also dispel doubts whether it is proper to try the defendants for their crimes against humanity— those crimes of violence against their own people and others which, though not technically violations of the laws of war, have always been criminal by the laws of civilized states. On these questions there has. in fact, been little disagreement.

Intelligent debate concerns more significant issues. Public discussion of the Nürnberg ease turns primarily upon two questions: first, whether judgment against the defendants should be reached and punishment administered politically or judicially; and second, whether the defendants’ initiation of a war of aggression may be considered a crime under international law.

Unfortunately there has been a tendency to merge the two questions into one. Those who are persuaded that the initiation of a war of aggression was not a crime under international law in 1938. though they are perfectly willing that the defendants should be liquidated by political fiat, commonly consider that judicial proceedings against the defendants are inappropriate. They frequently overlook the fact that the defendants, in their conduct of the war. violated the conventional rules of warfare, and that it punishment is to be administered for the commission of such crimes it must, by international law, be administered judicially. Accordingly, when it was decided that the defendants were to be punished for those offenses, judicial proceedings became necessary and the central question remaining for decision was whether a count charging the defendants with the initiation of a war of aggression should be included in the indictment.

It is, perhaps, natural that Americans, accustomed to a common-law tradition of judicial legislation, should assume that the Judges at Nurnberg will “ make " the international law concerning the criminality of wars of aggression. This, of course, is not the case. Justice Jackson’s opening statement effectively makes it evident that the international law of this case, whether new or old, was authoritatively established when agreement was reached upon the Charter of the Tribunal. By that agreement, the signatory powers defined the principles which the Court must follow. The Judges at Nurnberg, accordingly, are not called upon to decide whether the initiation of a war of aggression is a crime, but, so far as this issue is concerned, merely to decide whether it is shown that these defendants were among its initiators.

Justice Jackson’s opening statement is not an argument in the conventional sense of that word as applied to court proceedings. It is rather a justification of the decision which the governments made in August, 1945, when the Charter of the Tribunal was signed, it is, of course, an advocate’s justification and as such oversimplifies the recently debatable and still debated issues settled for this case in the Tribunal’s Charter. It also assumes, as the prosecutor before this Court has to assume, that Russian policy in recent years has not included or sanctioned aggressive war.

These omissions are inevitable and do not detract from the extraordinary effectiveness of Justice Jackson’s presentation. The controlled fervor and feeling of his argument, its effective analysis of the doctrinal rigidities of international tradition, its honest recognition of the political implications of the Tribunal’s Charter, and its insistence that the Nurnberg proceedings are only a part of a larger international effort to achieve an ordered world society — these make the opening statement a document of historic significance.

MARK DEW. HOWE