“As every one who has read any history knows, aggressive wars and conspiracies have never been regarded as crimes in law. They may be regarded quite properly as morally unjustifiable but the hard fact remains that there is no world code under which prosecution could be launched. And it is elementary canon of justice that a man can be tried for an offence only if he breaks a law which was recognised as such at the time that he committed the offence.”
OCTOBER 3, 1946
Nuremberg
THE TRIAL OF THE FORMER LEADERS OF NAZI GERMANY which began in November 1945 has at length concluded with a series of verdicts that are unprecedented in modern history. In the trials that were held after the war of 1914-18 a few Germans were punished for atrocities but the doctrine of the responsibility of Governments for waging war was not pushed to the point of judicial trial and the Kaiser left quietly for Holland despite the promise implicit in the English slogan of “Hang the Kaiser”. This time, however, the victorious Allies decided to stage a trial, the purpose of which was apparently to pin the guilt of war inescapably on the leaders of the nation they had defeated. It is astonishing that they have neglected to make this trial, which they claim will set a precedent in international relations, something that might resemble a proper judicial process. The prosecutors and the judges are both drawn from the Allied nations and neutrals have been carefully excluded. The British Prosecutor, Sir Hartley Shawcross, sought to excuse this last December when he said “this Tribunal acting, as we know it will act notwithstanding its appointment, in a world in which hardly any neutrals were left, by the victorious Powers, with complete and judicial objectivity, will provide a contemporary touchstone”. The italicised phrase referring to neutrals was included in the text of the speech as circulated to the Press but a correction was later issued deleting it, which shows quite plainly how conscious the Allies were of the weakness of their procedure. If the German leaders had really started a world war, the whole world had a right to judge them, not excluding the German, Italian, Austrian, Czech and other peoples. The Soviet Government were, during the war, always anxious to insist that their quarrel was not with the Germans but the Hitlerites. Yet at Nuremberg, no German or even the persecuted German Jew was permitted to sit on the Bench.
The indictment against the Nazi leaders was divided into four counts: “the common plan or conspiracy”, crimes against peace, war crimes and crimes against humanity. The first and second charge the defendants with deliberately planning a conspiracy to wage a war of aggression and violate accepted treaties, the third was concerned with the murder, enslavement or plunder of civilians or prisoners of war in occupied countries and the last assigned responsibility for illegal acts against Germans and German Jews even before the war. As everyone who has read any history knows, aggressive wars and conspiracies have never been regarded as crimes in law. They may be regarded quite properly as morally unjustifiable but the hard fact remains that there is no world code under which prosecution can be launched. And it is elementary canon of justice that a man can be tried for an offence only if he breaks a law which was recognised as such at the time that he committed the offence. The Allied Tribunal have ignored this canon on the ground that they were erecting new precedents and cited a whole list of treaties and pacts which they said had been violated. The list includes the Versailles Treaty, the Locarno Treaty, the Kellogg Pact, the non-aggression agreement with Poland, the Munich Agreement and the Nazi-Soviet Pact of August 1939 among others. It is obvious that such treaties, entered into by individual nations or groups of nations without the sanction of any world Parliament, have always been treated as non-aggression agreement with Poland, the Munich Agreement and the Nazi-Soviet Pact of August 1939 among others. It is obvious that such treaties, entered into by individual nations or groups of nations without the sanction of any world Parliament, have always been treated as scraps of paper when they conflicted with the self-interest of the signatories. In fact, treaties are usually signed with endless reservations that negative any value that they may have as legal documents. For instance, the Kellogg Pact to outlaw all war was thick with such reservations. In May 1928 Sir Austen Chamberlain, the British Foreign Secretary, wrote to the U.S. Ambassador reminding him that there are certain regions of the world the welfare and integrity of which contribute a special and vital interest for our peace and safety. His Majesty’s Government have been at pains to make it clear in the past that interference with their regions cannot be suffered. Their protection against attack is to the British Empire a measure of self-defence. It must be clearly understood that H.M.G. accept the new Treaty upon the distinct understanding that it does not prejudice their freedom of action in this respect.” Similarly, the American Government reserved their right to act in the maintenance of the Monroe Doctrine and France reserved her own right of self-defence. All this made the Kellogg Pact ridiculous as a means of stopping wars but it has nevertheless been exhumed at Nuremberg to strengthen the case of the prosecution. The truth is that all the policies and acts that led to the second world war are international in their motivation and causation as in any previous war, and it is perfectly sustainable that the groups in Britain, France and elsewhere who connived at the failure of the Weimar Republic and encouraged the rise of Fascism in Germany are as guilty of conspiracy as the Nazis themselves. Yet when Ribbentrop’s lawyer requested the Tribunal to subpoena such British figures as Lord Vannsittart, Lord Beaverbrook, Lord Kemsley, Lord Londonderry and others, he got the reply that the Court had no powers to command their presence.
In the light of these considerations the severity of the verdicts on the German leaders, twelve of whom have been sentenced to death by hanging, comes as a shock to world opinion. It might have been supposed that having staged an impressive trial to demonstrate their guilt, the Allies would have treated them as political offenders are usually treated, that is, with exile, imprisonment or loss of citizenship. But the Nuremberg verdict is full of contradictions; the Tribunal declined to declare the German General Staff, the Cabinet or the Storm Troopers “criminal” as groups but found that individuals in these groups could be regarded as guilty. Is this because the Allies are afraid of the precedent that they are setting up for the future? We have no wish to maintain that Allied conduct during the war and after reached the same level as the German. But it cannot be said to differ in kind. Concentration camps were not unknown in the British Empire, collective fines were levied in India not long ago, British planes bombed villages in Java and wiped them off the map; even today there is German slave labour in Britain and prisoners of war have not yet been repatriated. The Americans have the use of the atom bomb in Japan to answer for. A Japanese doctor said after the raid on Hiroshima: “I see that they are holding a trial for war ciminals in Tokyo just now. I think they ought to try the men who decided to use the atom bomb and they should hang them all.” This statement was editorially quoted in the Manchester Guardian which commented, “it was a thought that could have flown as far as Nuremberg”. When British Liberal opinion can see the wrongness of the trial, its full absurdity is even more patent in countries like ours where European politics are sufficiently remote to be studied with some impartiality. International justice can only be administered when there is a genuine political world order. Nations which seek to arrogate to themselves the powers and rights that properly belong to an international court only succeed in spreading the suspicion that they are promoting their own interests under the pretence of carrying out the mandate of world opinion.
Reference:
The First 100
A Selection of Editorials, 1878-1978, THE HINDU, VOLUME I