The Unanswered Question of Nuremberg:
KAPLAN, MORTON A.
The Unanswered Question of Nuremberg Tyranny on Trial: The Evidence at Nuremberg. By Whitney R. Harris. Southern Methodist. 608 pp. $6.00. Reviewed by Morton A. Kaplan Staff member, Brookings...
...The Nuremberg Trials established only one precedent: that the victor tries the vanquished...
...States —not individuals—are internationally liable for the delinquencies of their agents or for failure to punish their agents for these delinquencies...
...But this overlooks the fact that the Kellogg-Briand formula was clearly unacceptable to the great powers in the absence of reservations that nullified its substance...
...Jackson failed to understand was the distinction between law and morality...
...It is a monument to the victory of totalitarian concepts of law, to the surrender by the victors to the values of the defeated...
...How can one compromise with a criminal...
...And—as Mr...
...Moreover, the victorious powers chose only Allied nationals as members of the court...
...Had we simply included in our armistice terms the notice that we intended to execute those Nazi leaders whose actions revolted the conscience of civilized mankind, and had we carried out our intentions after proper identification of the culprits, the Germans would have understood the honesty of our procedure...
...The history of international law is a record of the efforts of wise men to avoid this senseless result...
...A final point: Reversion to the concept of "just war" makes the rational compromise of international quarrels much more difficult...
...Harris accepts as evidence of the procedural adequacy of the trials the following: "the Tribunal held that, notwithstanding proof that Doenitz violated the [Naval] Protocol [of 1936] . . . he could not be held accountable for such crimes in view of the fact that Great Britain and the United States did not themselves comply with the .. . Protocol...
...These members included the Russians, who had perpetrated the Katyn massacre of Polish prisoners of war, and the Americans, who had carried out the terroristic saturation bombings of Japanese worker districts and the atomic raids against Hiroshima and Nagasaki...
...Totalitarian dictatorship of the Left and Right, mass murder, aggressive wars and nihilistic ideologies characterize the age...
...Tyranny on Trial is an account of the schizophrenic insanity that gripped the German nation for twelve years, drenching the world in hate and blood...
...Reviewed by Morton A. Kaplan Staff member, Brookings Institution THE LIBERAL illusion of peace and progress has been rudely shattered in the twentieth century...
...Justice is blindfolded...
...Western jurisprudence rests upon the impersonality of the law...
...The prosecution case at Nuremberg rested upon the extremely weak argument that a series of interwar treaties—in particular the Kellogg-Briand Pact—had rendered aggressive war a criminal activity...
...I suggest that what Mr...
...Or, if a political compromise is made, does it not condone an illegal act...
...In his introduction to this book, the late Supreme Court Justice Jackson, the American prosecutor at Nuremberg, proclaims himself unable to understand Chief Justice Stone's thesis that the German leaders should have been punished but that the punishment should not have been "dressed up in the habiliments of the common law and the constitutional safeguards to those charged with crime...
...This is a curious way to determine the legal responsibility for action...
...There can be no crime without a law, no trial without established procedure, no punishment without established penalties...
...Harris admits—we would have been acting within our legal rights...
...But, even had the interwar treaties outlawed war, there was no precedent in international law for applying criminal penalties to individuals for "violations of international law" except in the case of the traditional "war crimes" classification...
...The application of rules for which the international community is not sufficiently developed reduces statecraft to the alternatives of total war—in the age of the H-bomb—or abject surrender of principles...
...The charter of the Nuremberg Tribunal was drafted by the victorious nations, and it specifically instructed the judges as to what they were to consider criminal...
...Law is not the only civilized value, and I would sympathize with the argument that the German Social Democrats should have illegally revolted in 1933 to prevent the legal Hitler regime from consolidating its power...
...But it is reckless and immoral to misuse law to sanctify political killings...
...it knows neither friend nor foe, but impersonally applies the rule to the case...
...The history of the interwar period is proof that war remained a commonly accepted instrument of national policy...
...It is determined by legal norms...
...In fact, the Nazis were not tried at Nuremberg for their most horrendous activity, the attempt to exterminate the Jews, except to the extent that it was connected with Hitler's war effort...
...Unfortunately, it is also an unwitting account of the legal nihilism that underlay the Nuremberg Trials...
...As Morris R. Cohen has demonstrated so brilliantly, law—although related to morality—is not determined by morality...
...The very language of the treaty, the specification that war should be renounced as an instrument of policy, showed that international law did not outlaw war...
Vol. 37 • November 1954 • No. 44
