Nuremberg: A Fair Trial? A Dangerous Precedent

The Nuremberg War Trial has a strong claim to be considered the most significant as well as the most debatable event since the conclusion of hostilities. To those who support the trial it promises the first effective recognition of a world law for the punishment of malefactors who start wars or conduct them in bestial fashion. To the adverse critics the trial appears in many aspects a negation of principles which they regard as the heart of any system of justice under law.

This sharp division of opinion has not been fully aired largely because it relates to an issue of foreign policy upon which this nation has already acted and on which debate may seem useless or, worse, merely to impair this country's prestige and power abroad. Moreover, to the casual newspaper reader the long-range implications of the trial are not obvious. He sees most clearly that there are in the dock a score of widely known men who plainly deserve punishment. And he is pleased to note that four victorious nations, who have not been unanimous on all post-war questions, have, by a miracle of administrative skill, united in a proceeding that is overcoming the obstacles of varied languages, professional habits, and legal traditions. But the more profound observer is aware that the foundations of the Nuremberg trial may mark a watershed of modern law.

Before I come to the discussion of the legal and political questions involved, let me make it clear that nothing I may say about the Nuremberg trial should be construed as a suggestion that the individual Nuremberg defendants or others who have done grievous wrongs should be set at liberty. In my opinion there are valid reasons why several thousand Germans, including many defendants at Nuremberg, should either by death or by imprisonment be permanently removed from civilized society. If prevention, deterrence, retribution, nay even vengeance, are ever adequate motives for punitive action, then punitive action is justified against a substantial number of Germans. But the question is: Upon what theory may that action properly be taken?

The starting point is the indictment of October 18, 1945, charging some twenty individuals and various organizations, in four counts, with conspiracy, crimes against peace, war crimes, and crimes against humanity. Let me examine the offenses that are called in Count 3 of the indictment "war crimes," in the strict sense...


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