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ONE
I
It is a lawyer's habit, that I would not resist if I could, to
begin with a statement of the case.
*
This paper, with some omission of detail, was read at the Annual Meeting of the
American Historical Association, December 30, 1946.
1 See the mimeographed daily transcript in English (hereafter cited as Transcript),
21 November, 1945, p. 11.
(1 1)
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[VOL. LXII
Credible information received in the course of the war reported cruelties and atrocities perpetrated by the Germans,
especiallyin the occupied countries, that no conception of military necessity could sustain. Impotent to render physical
assistance, the heads of state of the principal Allies responded
with warnings, jointly and severally repeated, that the guilty
would be apprehended and punished. The triumph of arms
brought with it the physical custody of thousands of persons
suspected of complicity in the conduct to which these warnings
had been addressed. It brought the custody of the survivors
among the principal enemy personalities believed, upon probable
cause, to be responsible for the initiation of the war. Most of
these persons had, indeed, made frantic efforts to surrender to
the forces advancing from the west; and by far the largest
number when the firing ceased were in American hands.
Within Germany no governmental authority survived the unconditional surrender, save that which the Potsdam Powers
themselves exercised by the military occupation. It took no
great foresight in the last days to anticipate that these conditions would obtain. It was essential that a policy be formulated for dealing with the individuals in question when the
fighting should finally come to an end.
The problem thus presented was answered by the principal
Allies in the Agreement executed in London on August 8, 1945,
to which nineteen other nations thereafter adhered. It is no
secret that this protocol represented, in its major content, the
proposals put forward by Justice Jackson on behalf of the
United States. It provided for the creation of a Tribunal,
deemed to exercise military powers and therefore entitled the
" International Military Tribunal "; each of the four signatories
was to designate one member and an alternate. The Tribunal
was accorded jurisdiction " to try and punish persons who,
acting in the interests of the European Axis countries," might
be charged and convicted of any of the conduct which the
Charter defined as a crime. The crimes thus defined were called
" crimes against peace ", " war crimes " and " crimes
humanity".
against
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ISSUES OF NUREMBEIRGTRIAL
13
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the General Staff and the S.A., and granted, but in highly
qualified and limiting terms, with respect to the Leadership
Corps, the Gestapo and the S.S. Nineteen individuals were
convicted, of whom eleven, including Bormann,were sentenced
to death, the others to imprisonment for terms ranging from
ten years to life. All of those sentenced to death were convicted of war crimes or crimes against humanity; all but four,
Kaltenbrunner,Frank, Sauckel and Bormann, were also convicted of crimes against peace.
History will ask whether these men and these organizations
were justly condemned or acquitted. The inquiry will involve
many phases not all of which can be examined here. I shall
attempt no more than to direct attention to the general issues.
II
Should the United States-and the question may be put
with equal validity for each of the victors-have cast its influenceagainst any punitive proceedings,declining to participate
and refusing to surrenderthe persons of its prisonersto other
countries clamoring to proceed? Such a course would have
forsaken the pledges and the warnings issued as an instrument
of war and would have respondedwith a blanket nolumus to
the demand for retributionthat rose like a plaintive chant from
all the desolated lands. Certainly only the firmest conviction
that punishment in this situation could serve no adequatetemporal purpose would have sanctioned dismissalof the millions
of complainantswith the admonition that " vengeance belongs
to God." In truth, the volume of accumulatedpassionsufficed
in itself to establish such a temporal purpose-for who can
doubt that indiscriminateviolence, a blood bath beyond power
of control, would have followed an announcement by the responsiblegovernmentsthat they were unwilling to proceed? If
nothing else was to be accomplished,it was essentialthat some
institutional mechanism be provided that would reserve the
application of violence to the public force, to cases in which
punishment might serve a constructive purpose and in which
reasonwould conclude that it was deserved.
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[VOL. LXII
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3 Ibid., p.
16825.
4 Ibid., p. 16819.
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[VOL. LXII
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[VOL. LXII
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The necessity of such limiting principles is particularly apparent when a charge of criminality pierces the insulation of
the national state and the defendants rely heavily on national
patriotism to justify their participation in government affairs.
It is apparentalso for another reason. If liability were asserted
in such broad terms that practicallyeveryonewithin the offending state would sense himself as subject to it, once the die were
cast by the initiation of war, the sanctions of the laws of war
would have no field of operation. There would, in short, be
no incentive for anyone within the country to mitigate the
rigors of the conflict or, indeed, to help bring it to an end.
3. Points such as these apply with specialforce to the charges
leveled against the six organizations. The extraordinaryprovisions of the Charter on which these charges were based were
formulated in the view that it would be practically impossible
to enforce responsibility under generally accepted theories of
accessorialliability if it were necessary to repeat in every individual case the necessarily elaborate proof of the criminal
characterof particular organizationsand groups. It was concluded, accordingly, that a procedure should be employed to
permit the issue of the culpability of organizationsto be determined in a single trial in which their leaderswould be individual
defendants, reserving to particular members the opportunity,
should they be prosecuted for their membership,of adducing
any evidence that might free them from personal culpability
despite their membershipin the criminal group. The justification for the device was that it could work no essential injustice since, on the assumptionsmade, if the evidence in the
major trial had been repeatedin any of the individual proceedings, the state of the evidence would be such that the defendant
would, in any event, be put to his proof.
However plausible in conception, this aspect of the Nuremberg proceedingproved to be a doubtful element. Two million
persons at least were included within the scope of the charges
and, as the organizationswere defined by the indictment, there
were inescapable ambiguities in the measure of their actual
scope. More than this, the underlying theory faced procedural
difficultiesof major moment as thousands of members of the
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[VOL. LXII
challenged organizationsoffered to testify that they were unaware of the criminal purposes alleged and innocent of any
criminal acts. Was the Tribunal to try the issues thus presented, and could it undertake to do so without protracting
the main proceeding to wholly impossible lengths?
The problem was resolved, in substance, by the criteria employed by the Tribunal to determinecriminality.6 In the first
place, it was held to be essential that the organization charged
have actual existence as a group entity, so that individualswhen
they became members understood that they were identifying
themselves with a collective purpose. In the second place, it
was required that criminal objectives be shown to be the pervasive purpose of the group as a whole and not merely the
secret intentions of its leaders or of some isolated portion of
the whole. In the third place, in estimating the criminality
of group objectives, the Tribunal employed the same limiting
conceptions that were addressed to the conspiracy charge as
a whole.7
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[VOL. LXII
for ourselvesbut for our cause-than the opportunity to establish our innocence that the Nuremberg defendants received.
My concern is with the point of equality itself, so important
an element of justice equality in the sense that the sanctions
do not apply either to our allies or to ourselves. The Russians
cannot be put to their defense in relation to Finland or to
Poland. We are obliged to present to no Tribunal the considerationswe would advance to justify the manner in which
we exhibited to Japan the power of the atom bomb. This is a
genuine difficulty-to which the Tribunal indicated its sensitivity in variousways, such as refusing to assessa penalty against
Doenitz for submarine violations that did not differ significantly from our own practice in the Pacific, as attested by
Admiral Nimitz. To be sure, the depravity of our enemiesand
the fact that theirs was the aggression accord us such large
leeway in this connection that our relative moral position is
secure. But this is a mitigation rather than a defense to the
inequality that Nuremberg involves.
I do not think that the difficulty argues that we should have
abstainedfrom the Nuremberg venture and accordedimmunity
to the guilty defendants, the only terms on which abstinence
would have been real. It argues rather that Nuremberg, far
more than San Francisco,was the assumptionof an irrevocable
obligation-to build a world of just law that shall apply to all,
with institutions strong enough to carry it into effect. It is,
moreover,as Justice Jackson has so properly reiterated,an obligation assumed as well by those of our allies who participated
in the trial or gave it their sanction by adheringto the Charter.
If we succeed in that great venture-and no nation can succeed
alone-Nuremberg will stand as a cornerstonein the house of
peace. If we fail, we shall hear from the German ruins an
attack on the Nuremberg judgment as the second " diktat" of
Versailles;and, notwithstanding the goodnessof our intentions,
we may have no sufficient answer.
HERBERT WECHSLER
COLUMBIA UNIVERSIrY
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