The Evening Star (October 9, 1946)
Lawrence: Nazis’ trials spelled history for posterity
Reasoning behind Nuernberg little known to U.S. people
By David Lawrence
Senator Taft’s criticism of the Nuernberg trials, as being arts of “vengeance” administered under a new concept of law which was not in existence when the violations occurred, is the forerunner of a lengthy debate among jurists of various nations.
It is surprising how many diplomats here say there is something to the Ohio senator’s viewpoint, but it is surprising also how little the reasoning which lies behind the Nuernberg trials has been publicized.
On its face, any conquering nation has the right to punish the conquered for inhumane acts or violations of the laws of wars. Customarily this has been done by military tribunals. Because the victors in this instance have chosen to set up a trial by the novel method of using civilian judges with civilian procedures does not mean that the right to punish those guilty of violations of international law is in itself novel.
Theory long upheld
Germany as a nation renounced aggressive war as “an instrument of national policy.” This was written in the Kellogg-Briand treaties. Obviously when a government or a nation violates a treaty, it is violating international law. To say that there is no means of punishing a nation because its individual leaders are immune, is to say that international law itself has no force behind it. Actually throughout history the theory of exacting punishment for violations of international law has long been upheld. These are sometimes referred to as “sanctions” or “reprisals” and take the form of seizure of property or of persons held guilty of the offense.
The United States government notified Pancho Villa in 1918 that Mexicans would be held personally accountable for misdeeds. Villa led a group of bandits across the American boundary into New Mexico and massacred some American citizens. President Wilson sent an American expedition into Mexico to capture the bandit leader.
There are other instances in which wars or near-wars have been accompanied by notice to a leader or his group that he would be held accountable for their acts.
It will be recalled that Winston Churchill, as prime minister, served such a warning on the Nazis during the war. It will be argued that some of the men tried at Nuernberg were not directly connected with what are ordinarily termed as violations of the laws of war. It will be urged also that some of these men did not participate in the political events leading up to the war of aggression. The question turns, however, on acts of inhumanity and cruelty. Men who acquiesce in such crimes by the government of which they are a part are themselves guilty of the crimes.
Signed by German nation
Where individuals exercised no independent judgment and had no power to dissent, there has been in the Nuernberg cases a tendency to spare them severe punishment, but the evidence shows that the men recently convicted did play a powerful role in the government and in the making of its policies. Hence they must be punished for having violated the Kellogg-Briand treaties which the German nation signed, along with the other nations of the world.
The murder of innocent men, women and children was a crime in international law long before Hitler was born. To say that the Hitlerites who were convicted at Nuernberg were tried on an ex post facto basis is to raise a technical quibble. International law and statutory law are not the same thing. International law is based on custom and on the development over the years of rights asserted first by an individual nation or a group of nations. The Hitlerites were guilty of the crimes for which they have been tried.
The importance of the civilian trials lies in the fact that the evidence has been spelled out for posterity. The record has been made crystal clear. It wasn’t legally necessary to do this, but it was important to implement the Kellogg-Briand treaties, which condemn aggressive war, with a procedure which will be a warning for all times that individuals who compose a government are responsible for its acts.