The Transformation of Diplomacy
How to Save the State Department
THE word most frequently used of the trial at Nuremberg and of some of its details is "unprecedented." Unprecedented it certainly is, if that word means merely that never before in history, so far as we know, has a court been constituted of professional judges from four allied and victorious nations to try individuals and organizations belonging to a defeated nation. But it is not in the least unprecedented for an international court to be established nor quite unprecedented to find individuals charged with war crimes arraigned before it.
The court at Nuremberg is not a casual or extemporized body. The necessity for its existence was recognized at a conference held at St. James's Palace, London, in January 1942 by the representatives of Belgium, Czechoslovakia, Free France, Greece, Luxembourg, The Netherlands, Norway, Poland and Jugoslavia, at which Great Britain, the four self-governing British Dominions, India, China, the Soviet Union and the United States were guests. As a final result of this conference and of the declarations made later at Moscow by President Roosevelt, Prime Minister Churchill and Premier Stalin, the court at Nuremberg was established.
I shall assume the details of its organization to be well known. To deny that this is, "properly speaking," a court is either to beg the question or to indulge in a game of definitions. Any group of persons declared to be a court by competent political authority indubitably is one, and it is hard to see why the authority should become incompetent because several political units act together in exercising it. What is a more difficult matter is a question which is much agitated among lawyers but which is likely to leave laymen quite cold. It is called "jurisdiction."
Has the International Military Tribunal, established by an agreement of four nations at London on August 7, 1945, "jurisdiction" over the 22 men on trial before it? The question of physical power may be disregarded. The term "jurisdiction" as used here involves a moral judgment. May the court without violating a real standard of justice -- which is another way of saying a recognized standard of right conduct -- exercise the physical power it so clearly possesses? If it may do so, it has jurisdiction in every sense that is relevant for our purpose.
What standard of substantial justice is violated when these 22 men, all of them former citizens of the German Reich, are subjected to the control of the International Military Tribunal? They have not been kidnapped and brought there in violation of international law. They have not been seized in violation of the laws of war. As a recognized nation, the German Reich has ceased to exist. Even if it had not, the occupation of German soil by hostile armies subjects all persons within the zone of occupation (quite in accordance with organized law) to the primary legal control of the nations to which the occupying forces belong. That alone is a sufficient basis in justice for exercising jurisdiction over these men.
Article 7 of the Charter establishing the court states:
The official position of defendants, whether as heads of state or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment.
The question of jurisdiction over "heads of state" is thus disposed of by the act creating the court. The claim to immunity is a vestige of the sacrosanctity of an anointed monarch and is absurd under modern law. No principle of justice is violated in abolishing it. To make a legal dogma out of it for modern conditions is nothing less than irrational.
But if there can be no just objection to the fact that the Tribunal assumes to try these men, is it equally certain that it may properly examine into all the acts of which they are accused? The crimes charged in the conference of 1942 and in the declarations that followed it were acts of violence against the civilian populations of the countries occupied by the German armies. The crimes which are charged in the indictment, authorized by the international agreement of August 1945 and to which the 22 accused men at Nuremberg are required to plead, are put into three groups: crimes against peace, war crimes and crimes against humanity. Of these, the first presents the greatest difficulties and will therefore be taken up last.
War crimes are defined in Article 6b of the Charter of the Tribunal, published August 8, 1945, as follows:
Violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of the civilian population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
These acts are not newly created crimes. The term "violation of the laws and customs of war" is an established term of international law. It occurs in the Treaty of Versailles and was the basis for the wholly abortive attempt to punish Germans who had been guilty of such violations in the war of 1914-1918. It is used in international practice and has been abundantly defined in such international treaties and agreements as the Hague Conventions of 1906.
In regard to war crimes there would be nothing unprecedented in the fact that either a national or an international tribunal takes jurisdiction of them. The details of organization and procedure in which, in this respect, the Tribunal strikes out new paths are insignificant and do not affect its lawful authority to act. But in the matter of "crimes against humanity" a new term is created and a new path is entered upon.
In the report which Justice Jackson made to the President, released on June 7, 1945,[i] the offenses that are declared to be "crimes against humanity" are given only a second place. But in popular estimation they are the ones that have excited most horror, and in the brilliantly eloquent speech with which Justice Jackson opened for the prosecution the dreadful character of these acts inspired a deadly summation: "The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated."
What these wrongs against civilization, these crimes against humanity, are, does not lack precise description. They have been presented to the court at Nuremberg in the horribly graphic form of motion picture records, records made by Nazis themselves, for their own evil gratification. The only thing unprecedented about the crimes is their number and their concentrated fury. Any one of these acts has doubtless been committed before, but there is no evidence that ever before in history have so many been done within so brief a period and under so coldly deliberate a program. Even where wholesale extermination of groups of men have been carried out in times past, this never before reached such proportions or was attended with such inhuman incidents. No one can reasonably question the statement that if any acts deserve to be punished capitally, these do.
If these inhuman incidents were disregarded, and we were dealing simply with acts of murder and robbery, and if the number of the victims had reached no such portentous total as it demonstrably did, the acts would still by the custom of those civilized nations we know best, by what the Romans called the ius gentium, be capital crimes subject to the death penalty. If we thus reduce these crimes against humanity to their lowest terms, they remain the most serious crimes that our penal system knows.
Most of the acts, even those committed by former German nationals outside of the borders of Germany, could probably have been tried by German courts under German doctrines of international law. But there are no German courts, except local and newly constituted courts of limited jurisdiction created by the Allied Military Government and responsible to it. Again, if there had been German courts, the striking experience of the last war would make it very likely that whether these acts were "simple" murders or murders aggravated by horrible acts of cruelty, their perpetrators would either wholly escape punishment or receive inadequate punishment. So far as most of the 22 defendants arraigned at Nuremberg are concerned, this result would be next to certain.
If the occupying Powers, therefore, had not established a special court to try these men for their crimes, it is probable that they could not be tried at all; or, if any trials took place, that no punishment would follow. If it can be correctly said that nonetheless a court with power to deal with them is "unprecedented," the only reply is that it is high time that a precedent was set. We need really not trouble ourselves to find analogies in international procedure, such as the jurisdiction over pirates, the communes hostes generis humani -- a proper enough designation for those Nazis who have openly and defiantly denied any obligation to their fellow men. Other analogies could be shaken out from dusty cupboards of the law. It is hardly worth while to do so. Lawyers as well as non-lawyers must be reminded that, despite an inveterate popular belief to the contrary, the mere absence of a precedent has never by itself been controlling in developed systems of law.
We may be content with the opening statement of Lord Justice Lawrence at the beginning of the trial on November 21, 1945: "The trial which is about to begin is unique in the history of the jurisprudence of the world. It is of supreme importance to millions of people all over the world."
Critics of the proceedings at Nuremberg have been of several types. Some are open or covert sympathizers with the Nazi movement, even when they profess to repudiate its brutalities. For them, the defeat of Nazi Germany is merely a military setback. They would, perhaps, accept as justified the terms ordinarily imposed on a defeated nation, that is, indemnities and partial occupation until the indemnities are paid, although they might cry out even at that. But they would be willing to expunge everything else and allow Germany the earliest and most complete chance of reëstablishing herself fully.
Others are humanitarians and pacifists to whom every form of bloodshed whether in war or by capital punishment is equally objectionable. They are represented by President Felix Morley, of Haverford College, who in Human Events of December 21, 1945, speaks of the entire proceedings as a "travesty of justice." Something very much like that is the position of Professor Milton R. Konvitz, as expressed in the January 1946 edition of Commentary. And in one form or another it underlies the objections presented by Professor Sidney Hook and others who have discussed the matter in the New York Nation. It is curious that this point of view is often associated with a qualified approval of lynching. Mr. Morley declares that lynching would be "more honest and forthright" and specifically states in the publication cited: "There could have been little or no objection if these men had been shot by military firing squads when captured." Professor Joad of Cambridge and other Englishmen of high standing have similarly declared that lynching of the Nazi leaders would be preferable to a formal trial.
At the bottom of their minds, evidently, these gentlemen are less concerned with who is punished and why than that it be done quickly. Lynching is a form of human sacrifice which can be expeditious because like most such sacrifices it is indifferent about the actual victim. One will do as well as another, as in the Gallus Galla, Graecus Graeca immolation which the Romans thought belonged to their savage past and of which they had the grace to be ashamed, mos minime Romanus. The gods appeased by this type of sacrifice are rather primitive spirits, and it is a little disturbing to be asked to propitiate them in the name of a higher morality.
We may recur to the opening words of Lord Justice Lawrence: "The four signatories having invoked judicial process, it is the duty of all concerned to see that the trial in no way departs from the principles and traditions that give justice its authority and the place it ought to occupy in the affairs of all civilized states." It is easy enough to scoff at these words as facile and insincere generalities. But if those who have so far attacked the trial at Nuremberg have nothing better to offer than the suggestion of lynching or than bitter gibes at our hypocrisy, we may be forgiven if we prefer to believe that an honest attempt is being made to make the day of reckoning a day of justice.
Does this trial violate one of the fundamental "principles and traditions that give justice its authority" in that it proposes to inflict punishment ex post facto? Even those who do not understand all the elements of this technical legal term have no difficulty in accepting as fundamentally just the rule that no acts can be made punishable which were not punishable when committed.
What in the United States is implied in the Constitutional inhibition of ex post facto laws has in Continental systems been formulated in a legal maxim, a relatively recent maxim, nulla poena sine lege. It was much employed by the penal reformers of the eighteenth century, Beccaria, Montesquieu, Filangieri, as a protest against arbitrary arrest and arbitrary punishment "in the interests of the state."
So far as this defense might be offered for the defendants at Nuremberg in the case of crimes against humanity, it can be rejected on two grounds. One is that the Germans themselves who might offer it have for a long time rejected it.
The rejection of the nulla poena sine lege doctrine was made a fundamental matter by the first Nazi legal conference. But refusal to accept it is older in Germany and in Italy than that date. The most eminent of German penologists of the late nineteenth century, von Liszt, declared the doctrine to be the "Magna Carta of criminals," and among many other jurists of high repute the principle was challenged and in most instances denied.
But the fact that it has been so denied by the very men who now stand at the bar of the court does not of itself deprive them of the right of asserting it. It is our idea of justice, not that of the Nazis, or of the pre-Nazi Germans and Italians, which is being administered in Nuremberg. We on our part are committed to the prohibition of ex post facto punishment not merely by the Constitutional provision, which deals with legislation only, but by the adoption of its underlying principle in all our penal systems. No man may be charged in the United States with a crime unless the charge can be referred to an explicit statute or ordinance by which the crime was defined and the punishment declared. There are no "common law" crimes.
But it is substance and not form which is of moment here. Every one of the acts described in the indictment as crimes against humanity would be punishable by the penal codes of every one of the United States, the penal codes of France and of the Soviet Union, and of the eight other nations which with France took part in the London Conference, the penal codes of the British Dominions and of India which were guests at that Conference. And they would be equally punishable in Great Britain which has only recently and partially codified its penal law. No one of the countries directly or indirectly concerned with the Nuremberg trials would fail to punish "crimes against humanity," however they might classify and name them, if they were committed within their own jurisdiction. Nor is the Tribunal applying to these men in respect of these charges an arbitrary accusation which would be dismissed in the courts of the signatory powers. The injustice of ex post facto punishment consists in making penal an act which when committed seemed innocent or at least indifferent. Can that be said of the crimes against humanity? And since it cannot, can there be any injustice of punishing what the consensus of civilized nations has regarded as punishable?
Indeed, the obvious criminality by civilized standards of certain acts has been recognized as basis for punishment in most countries, without code or statute. Those who are moved only by precedents need merely consider the history of criminal law in both civil law and common law countries. Codification -- the express definition of crimes by formal enactment -- is late. Yet, conduct in contravention of obvious human rights in person and property was for centuries punished without such enactments. This in large measure is still the case in Great Britain, and this was the case in all American states until the movement for codification got a real momentum in the nineteenth century. Nowhere did the absence of a statute in itself seem to mean that punishment was an unjust application of governmental power. That murder, rape, robbery or mayhem was a turpis felonia seemed clear enough to the English administrators at the Assize of Clarendon in 1164, the Assize of Northampton in 1176, and is clear enough now.
It has been suggested that in order to make an act punishable not only must its character as an outrage against human rights be clear but the perpetrator must be aware that if caught he would be punished under existing law. Under this theory, the 22 defendants, -- and indeed all the persons engaged in the horrors of Dachau and Belsen -- would go scot-free. They could confidently have expected that if Germany was either victorious or retained its position as a state they would never be called to account for any of their acts, no matter how savage and brutal these were.
Evidently, this could be asserted by any highwayman or gangster who hoped to escape punishment, and who in some cases had reasonable ground for believing that he would escape punishment. The seizure of political power by such a group of gangsters -- and that is very much what happened in Germany in the Nazi revolution -- could then be taken as a complete moral justification of any acts which Nazi leaders would decline to punish in their accomplices and instruments. To state the suggestion this way is to refute it; and it is hard to see how it can be stated otherwise.
The greatest prominence among these crimes is given in Justice Jackson's report neither to crimes against humanity nor to crimes against the laws and customs of war, but to crimes against peace. And it is to these crimes that the largest part of the formal indictment is directed. Count One charges a common plan or conspiracy for all three types of crimes. Section E of Count One charges the acquiring of totalitarian control in Germany for the purpose of planning and mobilizing for aggression. Section F charges the utilization of such control for aggression, first by violating the Treaty of Versailles, next by invading Austria, Czechoslovakia, Poland, Denmark, Norway, Belgium, the Netherlands, Luxembourg, Jugoslavia, Greece and the Soviet Union, and by collaborating with Italy in aggression against France, Greece and Albania, and with Japan in an aggressive war against the United States. Count Two lists the particulars of these named aggressions, as well as of the wars prepared, initiated and waged against Great Britain, France and the United States. Most of the controversy that Justice Jackson's report aroused when it was published concerns and will concern itself with this extremely important element in the Nuremberg trials.
The absence of a precedent need detain us here no more than in the other cases. If other objections can be met, the court might well determine to set a precedent instead of discovering one. The objections in this case are of a wholly different nature.
The essence of the crimes on this count is war itself. It has from time immemorial been recognized that there can be such a thing as an unjust war, and, e contrario, a just one. Men have sometimes used this last term as though it meant a war "declared" in formal terms and conducted according to elaborately fixed rules, like the code of duello. But the contrasting term, "unjust war," has at least since Greek and Roman times been used often enough to mean a war without moral justification, a war begun for sheer lust of conquest, for rapacity or for cruelty, a bellum impium et iniustum. In the case of an unjust war, the offender is of course the nation itself-- in the sense of a collective group, not in that of a fictitious entity -- despite the famous and incorrect dictum of Burke that an indictment cannot be drawn up against a nation. Punishment of a nation, however, can be inflicted only through another war or through hostile actions that normally lead to war. A third nation more powerful than either of the nations already at war may intervene, or other nations may combine against the aggressor.
And this sort of punishment of an unjust war -- called in these proceedings an "aggressive" war -- is, we may note, precisely the way in which under the San Francisco Charter it is proposed to punish an aggressor by act of the Security Council of the United Nations.
It is not the German nation, however, which stands at the bar of the court at Nuremberg, but 22 individuals. Can they be guilty of the acts which in the case of a nation constitute the crime of war? I find myself in complete agreement with Mr. Jackson when he declares that all acts are acts of men, of real men, persons of flesh and blood, and are not acts of an abstract entity. When it is said that a nation is guilty of war, it is not the abstraction, Germany, Italy, Japan, which is so guilty, but the great majority of Germans, Italians or Japanese who have demanded the war or acquiesced in it. It is these persons who are in actual fact and not by metaphor punished -- together, to be sure, with the minority which was unable to prevent the war -- whenever a nation is punished, as in the past nations have been punished, and as in the future it is proposed to punish nations under the San Francisco Charter.
Justice Jackson, for the United States, Sir Hartley Shawcross for Great Britain and M. François de Menthon for France have presented the case for the prosecution on behalf of their respective countries. The speeches they made and the testimony they advanced have sufficiently stressed the "crime of war." I think we may say, however, that the sustained eloquence of their speeches gains its quality from the enumeration of crimes against humanity rather than from the detailed revelation of how the Nazi government planned its wars. General Roman Rudenko, who opened the prosecution for the Soviet Union on February 8, stressed crimes against humanity rather than crimes against peace, which were taken up the following day by the assistant Soviet prosecutor. Mr. Rudenko in his carefully and soberly worded indictment of 70 pages listed mass murders, robberies and acts of destruction which he declared far transcended anything the Nazis had done in Germany or western Europe. The defendants most frequently mentioned by him were Jodl, Keitel, Rosenberg, Goering, Sauckel and Ribbentrop.
No one can deny that war is an unqualified horror both as it has been carried on during the last war and as it is likely to be carried on in future wars. Unfortunately it is a fact that in horror and destruction, an aggressive war is scarcely to be distinguished from a defensive war, an "unjust" war from a "just" one. And it does not follow that what makes a war a national crime -- punishable at the national level by subjugation which might take the form of permanent annexation and even wholesale deportations -- also makes it a crime of individuals.
As applied to crimes against humanity, the jurisdiction of the Tribunal cannot, I think, be substantially challenged on the basis of the ex post facto rule. But in the question of individual responsibility for crimes against peace it will be much more difficult to meet the challenge. I do not think that in the many discussions of the matter by Mr. Jackson and others the challenge has been met.
The wars which Germany planned after 1933 and which she waged after September 1939 were, beyond reasonable question, aggressive wars, and therefore punishable as offenses by nations may be punished. There would obviously be nothing ex post facto in doing so. But to make it a crime for individual citizens to instigate an aggressive war is very definitely to attach criminality to acts which could not have been reasonably regarded as criminal by those who committed them nor by the public opinion at the time of commission. The jurisdiction of the court to do this must depend entirely on its power, a basis which I am constrained to believe is not quite a satisfactory one, if it is the exclusive basis.
It may be admitted that the ex post facto rule is not absolute, as no legal rule is absolute, and that there may be a situation in which, in the furtherance of basic world interests, the rule may be disregarded. But if we are to depart from the "traditions and principles that give justice its authority," which Lord Justice Lawrence said we are not to do, it is well to be aware of our acts and to render a reason that will do something more than satisfy the necessities of a plausible brief.
The basic interest which can be served by holding the 22 defendants criminally responsible for what in general public opinion was not a personal crime when committed can only be the additional effect this might have for the prevention of future wars. A victorious nation has in past time taken drastic steps to forestall a future war of retaliation by the vanquished. How far it may go will be differently assessed. If the conquered nation was the obvious aggressor -- as by documentary evidence Germany was in the case of Poland, Holland, Russia -- the public opinion of the world would tolerate severities in dealing with it that would not be approved if the reverse were the case. It may be that this world opinion would not always be overwhelmingly effective, but it would have some effect and would be added to the imponderables like those which twice in our generation frustrated a highly organized scheme of military domination.
All this may be conceded, but it still makes the basis of punishing individuals for crimes against peace a "reason of state," a higher reason of state than that against which Montesquieu and Beccaria directed their attacks, but of the same kind. In an earlier phase of the discussion of war crimes, Sir John Fischer Williams scoffed at the idea of a future Hitler, confident of success, being deterred by the fate of his unsuccessful predecessors. Justice Jackson admits that we cannot assume deterrence in such a case, but holds that the formal establishment of the doctrine that crimes against peace are punishable is nonetheless vital.
We might go further than Justice Jackson and admit that scientific penology has long ago raised doubts about the deterrent quality of any kind of punishment. But unless we are willing to abandon the policing of our communities altogether, we are committed to a system by which socially harmful acts subject those who do them to punishment which in extreme cases may be capital. Social development creates new crimes and modifies the public attitude toward old ones. The law, however, can scarcely anticipate public judgment on whether an act is a crime or how it is to be punished.
Had public opinion in 1938 or later reached the point at which the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances" (which is Article 6 of the Charter establishing the International Military Tribunal) become a crime for which individuals may be punished? Has it now? Justice Jackson, in his report to President Truman, rests his case largely on the Kellogg-Briand Pact of 1928, although that is only the thirteenth of twenty-six violations of treaties or agreements listed as "charges and particulars" in Appendix C of the formal indictment. By that Pact, Germany among many other nations formally renounced war as a means of international policy and vigorously denounced all wars of aggression. But whatever may have been the statements of individual statesmen and publicists, those who recall the circumstances in which the Pact was made will only with difficulty be persuaded that at that time any sanction was contemplated in public opinion, other than, at the most, an economic boycott, and, at the least, the moral disapproval of the world. The word "international crime" used about an aggressive war in the Geneva Protocol of 1924 cannot be rated higher now than it was rated then, as a rhetorical term -- a noble rhetoric, to be sure -- but not a term with definite legal content.
If the violation of the Kellogg-Briand Pact or of the Geneva Protocol constitutes a crime, either for the nation or for the persons instigating it, then the conduct at the time of all the Powers that joined in creating the Tribunal at Nuremberg puts them in the unfortunate light of having acquiesced in what they now denounce as criminal. No official protest was made by these Powers when acts violating the Pact were committed. The personal indignation of such high-minded men as Mr. Stimson, Secretary of State when Japan invaded Manchuria, was shared, so far as our records go, neither by the President nor the Congress. And if it was shared by the majority of the people, there is abundant reason to hold that at that time no substantial number of Americans would have approved of war on Japan because of it.
Did the United States, did Great Britain, France and Russia become accessories after the fact in these crimes when they declined to treat them as crimes and continued close relations both with the nations that had committed them and the persons who had instigated them? It is hard to understand why that conclusion does not follow.
The question of individual guilt in those who urged or instigated Japan to violate its pledge then, or Germany to violate its pledge later, was, if discussed at all, chiefly heard from the lips the very humanitarian pacifists who today would reject these trials altogether, even for crimes against humanity and war crimes proper. It is impossible to determine with certainty whether public opinion at the present time supports the doctrine of individual guilt for crimes against peace. The impossibility is due to the fact that the three types of crimes are inevitably fused in the public mind by being combined in a single trial. To reject any one of the three creates the impression of defending men whose vicious actions seem to place them quite beyond the reach of any sort of clemency.
This transfer of the evil character of one accusation to another accusation of a wholly different kind is unjustified but hard to avoid. The men who committed crimes against humanity -- these 22 defendants, if they are proven guilty -- are men for whom nothing can be said in extenuation of their acts or in mitigation of their punishment. But although we can only with difficulty prevent the emotional transfer, we might make the attempt to conjecture what the public attitude would be if no crimes against humanity and no war crimes had been committed. We can gain some idea about it by asking what the attitude would be if any individual soldier or officer who had done no more than fight in the war were arraigned among the 22 defendants. They have "waged a war of aggression" as declared in Article 6, and both they and all our prisoners of war are criminals, if we take that phrase of Article 6 literally, as of course no one proposes to do.
I think we can say with some confidence that there would be little or no public support for making criminals of them, and I think this would be true of Keitel and Jodl and Doenitz and Raeder if they were not charged with complicity in war crimes and in crimes against humanity but only with being commanders in the armed forces of our enemy. Nor would the public feel appreciably different about them if it were shown that as members of the German General Staff they "planned, prepared and initiated" this war.
It would, I think, have been far better, if the court had confined itself to a consideration of war crimes and crimes against humanity, and allowed crimes against peace to be dealt with in a different way and by a different tribunal. These last are offenses in which values and the judgments based on them are determined in a way peculiar to themselves. We enter a different universe of discourse. Men who commit crimes against humanity are like those who commit murder, rape and robbery. The normal person is not likely to heroize them. But to prepare a scheme for dominating the world is a grandiose undertaking, however evil, and it might have glamor for weak eyes. It affords a dangerous enhancement for these men to charge them with crimes of such monstrous magnitude. Justice Jackson speaks of them as "twenty-odd broken men," "miserable men," whose "fate is of little consequence to the world." Their proper place is in the criminals' dock with their ruffianly kind, for the acts of brutality, torture, rape, murder, robbery and kidnapping which they are charged with committing, ordering, acquiescing in or permitting.
Suppose that they were tried only for these crimes, would they be convicted? Those who sneer at the trial assure us that there is no possible chance that they would be acquitted, and that the trial is a farce for that reason alone. I see no reason to think that the judgment is predetermined. To judge by what has already been brought forward, the evidence is likely to convince most unprejudiced persons, unless it is rebutted by equally strong evidence on behalf of the defendants.
As far as procedure is concerned, the trial is unimpeachable. The prosecution has not spent itself in denunciation. The evidence has linked each one of the defendants to specific acts. For example, Major-General Erwin Lahousen testified on November 30, 1945, that Keitel himself, not some subordinate, took part in the meetings in which it was determined that certain prisoners of war were to be put to death, and again that both Keitel and Ribbentrop informed the witness of the plan made as early as September 1939 for the systematic extermination of Poles and Jews, plans carried out afterwards with such dreadful thoroughness. The statements were denied and Lahousen was severely cross-examined without his testimony being shaken. The final question will then be, as in all criminal trials, whether the witness or the defendant is to be believed. Confirmation of either will be tested in the usual fashion in which weight and sufficiency of testimony are examined. The technical rules of evidence, which are so striking a characteristic of Anglo-American law, are of course not employed. These technical rules were never in force on the Continent and have been partially abandoned in the United States, especially in administrative procedure. Truth or falsity, probability or improbability, need not be made to depend on technicalities. Reason and experience furnish adequate canons.
The utmost care has been taken to enable all the defendants to present the fullest defense for themselves. They have been given complete copies of the charges against them and have had access to the documents on which the charges were based. They have counsel of their own choosing or counsel provided by the court and agreeable to them. Arrangements are made that they may understand every word said in the proceedings, whatever language is used by the court, the prosecutors and the witnesses. The witnesses have testified against them in open court and have been cross-examined. They will call witnesses on their own behalf. They and their counsel may address the court and have frequently done so. They will be allowed a final statement -- the last statement of the trial -- to the court.
If there is anything lacking to make this the fullest grant of due process it is hard to see what it is. The oft-quoted statement of Marshall in the Dartmouth College case (17 U. S. 58) defines due process as "the procedure which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." All of these things are present here.
It is certainly not a foregone conclusion that the judgment in the case of all 22 defendants will be condemnation. Nor is it certain that if condemned they will all be sentenced to death. Of the three prosecutors who have so far prosecuted their cases, neither Justice Jackson for the United States nor Sir Hartley Shawcross for Great Britain has specified the penalty or penalties he will propose. M. de Menthon for France has declared that he will demand the death penalty. Section 8 of the Charter, while it rejects "superior orders" as a defense, allows it as an element in mitigation of punishment. Whether such minor defendants as Sauckel or Speer will allege it, or even such major ones as Keitel, Jodl or Seyss-Inquart, remains to be seen.
The judgment of the court on the defendants will be final. The Allied Control Council may decrease or modify the penalty, but it may not change the verdict nor may it increase the punishment. The court itself, Justice Jackson declares, will be judged by history. So far as its will to do justice is concerned, the labors for eight months of a highly trained personnel under eminent guidance, labors that required a continent to be ransacked and thousands of persons and documents to be examined, furnish ample warrant that history will not condemn it. Nor will there be any doubt about the significance and value of the trial for the law of the future world community. I have ventured to set forth my opinion that the value would be even greater if the court had declined to consider a question which world opinion is not yet demonstrably ready to place before a criminal court.
[i] Department of State Bulletin, June 10, 1945, p. 1071 et seq.