Pittsburgh Post-Gazette (October 18, 1946)
On the Record…
New law of nations urged as a sequel to Nuernberg
By Dorothy Thompson
Now that the Nazi leaders have swung from the gallows, and Goering has taken the hemlock, thereby joining his fate with that of Hitler and Goebbels – a final triumph under all the circumstances – we cannot escape a queasy apprehension that what has happened is not justice, but a lynching, remembering that lynching is not justice even when the victims are not innocent.
Perhaps the best comment on the trials was made back in 1943 by E. B. White, that witty and lucid moralist of the New Yorker, whose originally anonymous essays in behalf of a world law have been published in a most commendable little book, “The Wild Flag.”
Speaking, not of German, but of Japanese crimes, Mr. White said:
“During the great storm which broke following the Jap executions of American fliers, two phrases were heard… the Japs had ‘violated military law’ and would be ‘brought to justice.’ It is time now for remembering that such phrases are false, such words dangerous, when misused. The Japs violated no law, and their leaders will not be brought to justice, though they will be brought to something else… The ‘laws’ of warfare are… merely a set of rules for quarreling which any nation ban disregard if it chooses. When war comes, each nation makes its own rules… When at last Japan is punished, as she will be, … the act of punishing will not be justice. To call it justice is to do ourselves a disservice because it deflects attention from the terrible spectacle of a world without law…
“There is a sharp need for definitions in the words of Saroyan’s barfly, there is ‘no foundation all down the line.’ Nothing is more frightening than to hear what is not law called law, and what is not justice called justice.”
If what has been retroactively declared to be law in the case of the Nuernberg defendants is to become law, the next thing for the Nuernberg tribunal to do is to call upon the United Nations to declare that the crimes charged against the Nazis are henceforward crimes wherever and by whomsoever committed. The next thing for the United Nations to do is to legislate a new law of nations containing, on the basis of the Nuernberg trials, most careful definitions of what is prohibited to states and persons in the service of states; and to create a supreme court of nations, before which breaches of the law may be prosecuted and an international police force to enforce the judgments of that court.
That, of course, means the beginning of a world state, for it involves the relinquishing of the basic principle of national sovereignty, which is the right to live outside any law except the nation’s own.
Yet, the essence of justice – and no honest man can get away from this – is that those who make, prosecute, judge and punish must accept and live under the rules they enforce, and if they refuse to do so, there is no justice, there is only force. And if the law is not now created, then the lesson of the Nuernberg trials is that any victorious state (or victorious political party) may dispose of its enemies however it pleases, which does not lead us into law and justice, but backward to the pre-Christian era and the practices of pagan antiquity.
According to Justice Jackson’s highly philosophical report to the President, the proceedings at Nuernberg were to establish jurisdiction under international law to call to account, as criminals, breakers of peace and the “laws of humanity” – actually, at the time, nonexistent as laws.
This, which is highly desirable in principle, has, in procedure, been unfortunately contrary to accepted and unalterable standards of justice. This fact will overshadow the whole issue and compromise the very underlying idea, unless further steps are taken to embody it in an institutional framework.
Otherwise, the principles advanced by the United States cannot be regarded as more than a sham “legalization” to cover much less lofty motives; and the Nuernberg trials, instead of opening a new epoch of humanistic international law, will open an epoch of lawlessness and arbitrary “peoples’ tribunals,” in which no man’s head will be safe from the noose, and in which the forms and concepts of Nazi and other totalitarian and usurpational “justice” will, in fact, have been confirmed.