The Chalice of N

THE CHALICE OF Nuernberg

In a nobly worded, nobly intentioned statement opening the Nuernberg trials, U.S. Prosecutor Robert Houghwout Jackson presented a warning and a goal: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspiration to do justice."

The procedure was scrupulously fair, strikingly effective. A four-power trial which might have been a farce in four languages had turned out to be (in the first eleven days) a triumph of orderly jurisprudence.

The charges encompassed every evil act of Nazidom. But one charge encompassed all the others: the charge that the defendants had planned and waged aggressive war. The corruption of pre-Nazi Germany, the murder of 4,500,000 Jews, the successive invasions, the plunder of Europe and the enslavement of Europeans--all were held to be international crimes because all were part of the master plan of aggressive war. Upon that contention, Justice Jackson repeatedly said, the prosecution's case stood or fell.

The German people were not on trial; neither was Germany as a nation (said Jackson: ". . . we have no purpose to incriminate the whole German people"). The case against the 20 men in the dock rested on the prosecution's theory of "individual responsibility" ("Who was responsible for these crimes if they were not?"). This theory in turn rested on the premise that Adolf Hitler, such top Nazis as the dead Heinrich Himmler, the 20 in the dock and some 2,000,000 members of the Nazi Party's "Leadership Corps" (the Gestapo, SA, SS, etc.) had imposed Naziism on 70,000,000 Germans, and then, with the German military's help, had "driven" Germany to war.

Justice Jackson's remarkable definition of the military defendants' status was enough to make all professional soldiers lie awake nights: "We recognize that to plan warfare is the business of professional soldiers in every country. But it is one thing to plan strategic moves in the event war comes, and it is another thing to plot and intrigue to bring on that war. . . . Military men are not before you because they served their country. They are here because they mastered it, along with these others, and drove it to war. They are not here because they lost the war but because they started it. Politicians may have thought of them as soldiers, but soldiers know they were politicians."

The leaders of Naziism had undoubtedly conspired for aggressive war, and had then waged it according to horrendously detailed plans. But the prosecution's premise--the responsibility, of comparatively few--was all too familiar. In the years when Mussolini and Hitler were rising, just such theories had led the libertarian world to dismiss Fascism and Naziism as the work of a few bullyboys.

The Law of Nuernberg, or the seeming lack of it, worried many a worrier. Nobody had formulated the doubts very well. But they existed: Justice Jackson's whole statement to the Court was an attempt to meet them. He bluntly said that the charter of the Nuernberg tribunal, completed three months after V-E day, was the ex-post-facto law on which the trials were based. He cited some precedents for the master charge (the unratified Geneva Protocol of 1924, the Kellogg-Briand Pact, various League of Nations declarations treated aggressive war as an international crime). But, with more courage than legal logic, Jackson faced the basic fact: "It may be said that this is new law, not authoritatively declared at the time they [the defendants] did the acts it condemns. ... I cannot, of course, deny that these men are surprised that this is the law; they really are surprised that there is any such thing as law. . . . Their program ignored and defied all law."

The Ultimate Step. Prosecutor Jackson defended this pragmatic approach on the pragmatic ground that the end justified the only practicable means. In the prosecution view, the object of Nurnberg was not merely to punish these particular offenders, but to evolve from their trials a body of effective international law against all aggressive war. Said Jackson:

"International law . . . if it is to advance at all, advances at the expense of those who wrongly guessed the law and learned too late their error. I am not disturbed by the lack of judicial precedent for the inquiry we propose to conduct."

For his final justification, he had to turn back to the weakest point in his brief. Said he to his U.S. British, Russian and French colleagues: "The ultimate step in avoiding periodic wars ... is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law . . . must condemn aggression by any other nation, including those which now sit here in judgment."

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