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82
powerful nations had not been sub- assaults on life and property normally
mitted to the Hague court, the jurisdic- punished by criminal law.
tion of which was predicated upon the
The outlawing of aggressive war does
acceptance of the Charter of the Court away with the paradoxical situation
by the nations who figured as parties about which Pascal complained in the
before it. It can be said without danger following words:
of contradiction that it was merely a
"Why do you kill me? Don't you
glorified edition of the traditional courts live oh the other side of the water?"
of arbitration.
The killer said: "My friend, if you
lived on this side, I would be a murINDIVIDUAL RESPONSIBILITY
derer and it would be unjust to kill you
The jurisdiction of the Nuremberg as I am doing, but since yoti live on
court is not conditioned upon its formal the other side, I am an honorable man,
acceptance by the defendants or the and this is just."
state with which the defendants are
It would be futile to draw up regulaidentified. It is the first unmistakable tions for the world community if the
instance of compulsory jurisdiction by individuals
for national
'responsible
an international court involving more policies could
escape behind the imthan routine matters of international re- munity of the state. There can be no
lations.
society of nations tomorrow without
The Kellogg-Briand Pact and various an international morality, without an
other international agreements brought identical hierarchy of values.
the very principle of war into the juridiIndividual responsibility before a
cal domain. It was a pious declaration, court of justice is a legal concept but
but now logical conclusions are drawn has incalculable political implications
from it. Since 1928, the international when applied to international politics.
law of war has been more than the regu- It is obvious that responsibility in an
lation of conduct in war. It marks an organized modern state is not limited
essential step in the evolution of rela- to those who act directly for the state.
tions between states. Every war of ag- This rule was laid down at Nuremberg
gression is illegal and the men who and applied not only against those who
bear the responsibility for bringing it occupied high governmental positions
on, deliberately place themselves be- but also to other individuals. Gustav
yond the ken of law. Briefly, this Krupp, a private industrialist, was inmeans that every act committed as a dicted with the leaders of the German
consequence of this aggression ceases Government and the German armed
to have the legal character of an act of forces. In complex modern
society,
war. A war declared in violation of in- power and influence are not
completely
ternational law is no longer equipped in the hands of those who are
officially
with a juridical character. Thus, war identified with high government
poitself deemed criminal, the acts con- sitions. Leaders of the press and innected with it cannot be defended as dustry often wield more power and informing part of a legitimate enterprise. fluence than do governmental officials.
Those persons who used the German This fact was recognizedwhen the name
State as a vehicle for their criminal en- of Gustav Krupp was also included in
terprise, who were the very organs of the list of the defendants for the
the state, must be considered to be Nuremberg trial.
Although three of the
criminally responsible for the countless four sponsoring powers of the trial op-
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83
Gone are the moral and legal justifications of national sovereignty when
four of the world's most powerful nations flout the concept that the individual national state has unchallenged
supremacy. Where is the focus of political power-in the national state or
in the world community? Are the leaders of the state responsibleonly to those
to whom they owe their power and position? Or do they have obligations toward the interest and peace of civilized
mankind?
It is paradoxical that a world organization, such as the United Nations, and
a new pattern of world law obtain juridical foundations over the fiasco of
the excessively nationalistic and militaristic German State. At Nuremberg,
the leaders of the National Socialist
German State have to account for their
actions before an international body.
They are held for account not by the
German people whom they supposedly
represent but by the four powers who
act for the world community. A new
political concept obtains its juridical
foundations when the principle of national sovereignty is subordinated to
the rules governing world society.
Though there is yet no world government, no world parliament, the center
of political power has shifted away
from the national state. The trend cannot be disposed of easily by pointing
out that we are merely concerned with
a defeated nation which lost its identity
as a political unit. The authorized representatives of the leading states did not
give a restrictive interpretation to their
statements when prosecuting the German war criminals on behalf of civilization.
Aggressive war is the central theme of
the Nuremberg case. Aggressive war as
an international crime brings into cog-
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84
DOMESTIC
POLICIES
The American Chief Prosecutor has
shown how the National Socialist German Workers Party was the chief instrument of cohesion in plan and action
-how the Party from its inception contemplated war. Preparation for war
had obtained a convenient and necessary faqade in 1933 when Adolf Hitler
became the Chancellor of the German
Republic. The prosecutors of all four
nations have argued that the abolition
of the party system, the campaign
against organized labor, the churches,
and the Jews had been carried out with
a view to eliminating potential resistance to the scheme to launch an aggressive war. The educational structure of Germanyhad been geared to the
supreme war effort; minds and bodies
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OF THE TRIAL
POLITICALCONSEQUENCES
85
ORGANS
The Charter of the International
Military Tribunal has implemented the
criminality of aggressive war with the
principle of personal responsibility. Of
course the idea that a state, any more
than a corporation,can commit crime, is
a fiction. But it is intolerable that such
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86
POLITICAL
CONSEQUENCES
OF THETRIAL
nality and prosecuted by law through
the agencies of organized world society.
COLLECTIVE
CRIMINALITY
The United Nations could utilize a
powerful precedent when it comes to
imputing criminal designs to representative organizations of a state. Purely
for illustrative purpose, again using
Spain as an example: the members of
its government, the Falange Party, and
identifiable army groups might figure
in an investigation or decision by the
United Nations. The United Nations
could not break the continuity of criminal design if it singled out only individuals for its target, while the other
members of the organizations of which
the individuals in question were members could continue the criminal planning or acts. The practical value of
the concept of collective responsibility
is evident.
A psychological problem of great
portent is connected with the question
of the criminality of the SS, the SA,
and the Gestapo. The membership of
these organizations runs into the millions. There is little doubt that at least
the great majority of the members of
these organizations are responsible for
criminal acts. Moreover there is little
doubt that they will be apt to relapse
into the same type of criminality as
soon as conditions permit.
There is nothing fantastic in the
prosecution of a few million persons.
It is seldom realized that from the
time of its liberation until the end of
1945 over 100,000 cases involving collaboration and war crimes had been
tried in France. The main question is:
Will there be adequate machinery organized by the United Nations to prosecute and try members of the criminal
organizations?
It is feared by some that the prosecution of millions will result in disturbances in Germany. While this is not
87
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88
common with the highest degree of integrity and moral wisdom generally demanded from, and manifested by, the
members of the military profession.
They are on trial not because they lost
the war but because they started it.
And if recognition is given to the claim
of the prosecutors, then this will mean
that the collective security of world society attained supremacy over the personal security of the militarists.
Those of us who during the interrogations had the opportunity to be
close to Goering, the most reprehensible
of the war criminals, could not help
having the feeling that he was a mental
giant, perhaps the most brilliant person
in Nuremberg. And he was probably
right when he claimed that international
law regulating conduct in war is outdated in view of the new total character
of war.
Nearly every belligerent power in
World War II is guilty of violating
some parts of the structure of international law as laid down in the Hague
Conventions and the various Geneva
regulations. But the Nuremberg trial
is not so much concerned with these
technical crimes committed in the excitement of combat.
And who can say: "I have a clear
conscience, I am without fault. To
have two weights and two measures are
both abhorred by God." These are
words of the Scripture which never lost
their validity. No nation is without
reproachin history, just as no person is
without fault in his life. Every war in
itself generates individual and collective crimes because it easily unleashes
in man the, evil passions which always
slumber there. But viewing the German criminals we can examine our conscience fearlessly: we find no common
measure between them and ourselves.
A major portion of the German
crimes, the so-called crimes against humanity, were perpetrated during the
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POLITICALCONSEQUENCES
OF THE TRIAL
89
90
tries, the sacrifices of the victorious nations, we want to engender a better humanity, then justice must strike those
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