It seems to me narrow and pedantic,” said Edmund Burke, “to apply the ordinary ideas of criminal justice to this great public contest. I do not know the method of drawing up an indictment against a whole people.” We have accepted this statement because the man who uttered it was then speaking on our behalf. But Edmund Burke in this, as in a great many other statements, was wrong. It is not in the least impossible to draw up an indictment against a whole people, and whether or not the contest is a public one, the “ordinary ideas of criminal justice” are just what should be applied.
The indictment that we can draw up against the German people is a serious one. The first count in it is the overwhelming surrender to Hitler. After 1933, the government of what the Germans chose to call the “Third Reich” was in the hands of a small number of persons, headed by an Austrian-born adventurer named Adolf Hitler. The members of this government had two capacities. They were the heads of the National-Socialist party which in 1933 under a show of legality, and later with open defiance of legality, attained control of the government. This government they proceeded to reorganize into a new and dreadfully tight political scheme, which turned all the economic and human resources of seventy million people over to the irresponsible disposition of a self-constituted and self-perpetuated coterie under the autocratic control of Hitler himself, the Fuehrer.
Our indictment proceeds further. The great mass of German people knew who these men were, knew what kind of men they were. They knew the things the Nazis said they would do. They had it in black and white in the pages of “Mein Kampf.” And they knew, at first hand and autoptically, the things the Nazis actually had done while still a political party, things like brutal murder, torture with all the variations of gangsterism at its worst. The reaction of Germans to an economic depression, no worse in the years preceding the catastrophe of 1933 than in most other countries of Europe and America, was a complete surrender to the Gang. And they were impelled to this easiest of ways out by the lowest type of persuasion. “Give us power,” said the Nazis, “and you shall live on the labor of the servile peoples around you, you who are the master-race.” That behind this was the bitterness of defeat concealed under the vehement assertion of an invincibility betrayed by the lying promises” of Wilson, may well be true. But this fact hardly raises in dignity the motives which induced Germans to greet Hitler with ecstatic adulation.
No, the Germans in mass and as a people can scarcely be acquitted of having made common cause with Hitler, and with that small gang who were at once his instruments, his accomplices, his managers, and his masters. Hitler’s crimes did not begin with the savagery at Warsaw in 1939. There was Dachau as the symbol of his methods long before that. And for this long series of horrors beginning with Warsaw, running through Rotterdam, Coventry, Lidice, and Ourandour, and culminating in Lublin, Buchenwald, and Belsen, the Germans in mass and as a people must take part of the responsibility, since their surrender to Hitler made those horrors possible, and the silence of some Germans, and the open approval of others, supported and rationalized them.
Certainly, not all Germans were in this case. It is not the mystic entity of Germany that is charged with these crimes, but a definite group of persons. All groups everywhere act through agents whom the majority among them selects. A group cannot act otherwise. In this instance the majority was enormous, and so far as our attitude is considered, it was so large that we may assume, if only prima facie, that every German approved the Nazi regime with all its consequences, that every German accepted it or acquiesced in it. That is to say, we must change in this case the burden of proof which in private accusations among civilized peoples we place on the prosecution. In the case of men of German nationality, the burden is on them to prove their freedom from complicity. Many can do this easily. Most—not all! —of those whom the Nazis sent to concentration camps before the outbreak of war have a claim to be considered non-participants in the conduct of their tormentors. Others have indicated in different ways their abhorrence of the deeds that have shocked the world. But, when all is said and done, it is only a small minority of Germans about whom we can say that they clearly had no share by word or thought in the crimes we are seeking to bring home to their perpetrators.
But if most Germans were in varying degrees accessories to the crimes of the Nazi gangsters, ft is not at all clear that we can punish every one who may be properly deemed deserving of punishment.
A country can be punished. Every conquered country is punished. Sometimes it is punished by being fined, as when France paid a huge indemnity to Prussia after the Franco-Prussian War in 1871, and equally often by surrendering territory, or submitting to a special sort of control which may amount to a complete surrender of independence. This is really a penalty for being conquered and has nothing to do with misconduct either of the people or of its rulers. It is true that the war itself, waged against the conquered country, may have been based on an act of aggression, which we shall find reason to call a crime in a special sense. The penalties imposed may be declared by the conqueror to be the punishment for that act of aggression. The severity of the penalties, however, is measured, as a rule, even in the case of a complete victory, by the danger which the victor assumes to exist in the conquered country rather than in the gravity of the offense committed.
This has been the general attitude of international law, a law that assumed that war was just as natural a relation between nations as peace. Nothing else could really be assumed since war, while in no proper sense a natural characteristic of mankind, is at least as old as civilization. Consequently, while the earliest effort in the direction of international law distinguished between a just war and an unjust war, the distinction was not always made as we would make it, and it was understood that, however deplorable the fact was, there was no real relation between victory in war and the justice of waging it.
The conquest, therefore, of the just by the unjust was an evident possibility, and the terms the conqueror imposed were rarely if ever qualified by the consciousness of having been an aggressor. If, then, we declare that we intend to punish the Germans because they waged a war which had not the remotest justification in any principle of law or morality, we must realize with certain misgivings that we should have the same means of punishing them if they had been defeated in a war in which they had justice on their side.
What we punish the Germans for cannot be the fact that they waged war, morally indefensible as that war was. We must say that, I think, in spite of the fact that war is an unqualified horror and that its horror has been vastly multiplied by modern science which has rushed into the task of wholesale destruction with a greater gusto than it has ever manifested in the task of human conservation. And this dreadful business of destruction produces not merely the incalculable suffering of individuals we see all around us, but obviously threatens the extinction of the type of society we know. War is all that, but up to the present day neither the civilization of the East nor that of the West has arrived at a point at which we can make of war a real crime in itself, for all that its results are more harmful to society than any crime of individuals or groups could be.
We hope, of course, to reach this point in the post-war settlement which a series of conferences are preparing. We hope, that is to say, to arrive at a situation in which wars of aggression can be effectively prevented and in which a war of aggression can be simply enough defined. It will be any war not authorized by the Security Council of the United Nations. Such a war will then become a crime under international law, and the punishment of the aggressor by subjugation of his country will not be merely an exploitation of the results of a victory, but the vindication of a moral principle.
Since war will clearly be a crime, those individuals who fomented and provoked it, will equally be criminals under international law, and will be subject to criminal penalties. And if there ever were a crime that deserved to be called capital, it certainly sterns to be this one which menaces the lives, the bodies, the minds, and the cultural achievements of millions upon millions of inoffensive human beings.
But—and it is a large “but”—can it be said that before this settlement is reached, before the San Francisco Charter is ratified and operative, we have reached that position? We are told, on extremely high authority—that of Mr. Justice Jackson of the Supreme Court of the United States, who has also been charged with the responsibility of prosecuting war criminals on behalf of the United States—that we have already reached the stage when we can charge Germany not merely with the crime of Nazism, but with the crime of war. He finds in the Kellogg-Briand Pact signed by most of the United Nations and signed by the Axis nations with whom the United Nations were at war, the justification for saying that the German attack on Poland, France, Belgium, Holland, Denmark, Norway, Great Britain, Russia, and the United States, was made criminal under that pact, solemnly signed by the Germans themselves, and at no time formally repudiated by them.
It would be highly satisfactory to think so. There is no doubt that by the Kellogg-Briand Pact, the signatory nations, Germany among them, in 1930, renounced war as a means of settling international controversies. Nor is there any doubt that in 1932, Mr. Stimson, as Secretary of State, declared that by reason of the pact war had “become illegal throughout practically the whole world.”
We need not quibble about the word “illegal,” instead of “criminal.” Mr. Stimson’s opinion is entitled to great weight, but if he meant merely to stigmatize wars of aggression as contrary to international law, he did not, I am afraid, add anything to the status of such wars. They had long been regarded as illegal in that sense, but the only sanction that international law imposed was that such wars of aggres: sion justified the intervention of other powers on behalf of the aggrieved nation and that this intervention could not itself be stigmatized as an unjust war.
Mr. Stimson undoubtedly meant more than that. He would have liked, as his whole attitude showed throughout his incumbency as the head of our department of foreign relations, to make a war of aggression criminal in the strictest sense. But it is extremely questionable whether his opinion could be said to be that of the other signatory powers, even those that now have undertaken the responsibility of trying and punishing war criminals. It is even questionable whether in 1932, and for a long time thereafter, Mr. Stimson would have been supported by public opinion in the United States, if he had said that any war between the signatories of the Kellogg-Briand Pact was a crime, which justified special punishment of the country that provoked it and of the individual men whose acts set it in motion.
Justice Jackson declares that if the status of an aggressive war was not changed by the pact, the pact “comes close to being an act of deception.” That is a harsh word, if it implies conscious deception. The pact was animated by the high and generous purpose of inducing nations to forego the use of war, even if they had the power to go to war and even if they were assured of practical immunity when they did so. That millions of people hoped that this purpose would be achieved and that the formal declaration in the pact would act as a deterrent of war, there is no doubt. I think it is not too much to say that this hope was shared by nearly all those who at the time of signing the pact officially represented the signatory powers. ,
We may indeed say that we were deceived, but the deception lay in the far too high estimate we then had of the moral purpose and strength of conviction, not perhaps of those who actually signed the agreement, but of the people for whom they spoke. But that was a self-deception and it was not authorized either by the terms of the pact itself or by the considered judgment even of those who properly declared the pact to be a substantial step forward in the direction of international peace.
There was no suggestion in the pact that a war—even a war of aggression—would entail any penalties except the strong disapproval of the other powers. Nor was this disapproval a wholly contemptible sanction. If it had been effectively applied, it might have caused serious economic losses to the offending nation, even if it did not quite extend to a formal embargo. And while this last step was not specifically asserted to be the means of enforcing observance of the pact, there seems to be little doubt that it was sufficiently in men’s minds to make it possible to say that those nations that undertook an aggressive war consciously ran the risk of economic sanctions and could not call an embargo or a cancellation of trade privileges, imposed upon them because of the war, an unfriendly act.
Among the measures which may be legitimately applied to aggressor and defeated nations are those, however harsh, which can be directed to preventing future acts of aggression. If we find among Germans, individuals or classes of individuals, who still retain the will and the power to begin another war, we should be justified in drastically controlling them, even if that control means deportation. On that principle, action contemplated against persons loosely called ’ the “Junkers” or against the German General Staff may be examined. To make these men guilty of the crime of war is justified only so far as they were important elements in the guilty German nation. They are really no more guilty than the large German majority which enthusiastically extolled their acts and accepted their temporary triumph. Only if we could actually assume that the execution of these men would prevent a future war, should we be within the range, though close to the outer limits, of legitimate war measures.
I doubt whether it can be seriously contended that this severity would have such an effect. What made Germany dangerous to the peace of the world was not really the presence of a skilled and competent General Staff or the existence of a class of feudal landowners who retained the feudal tradition of war as the most glorious of men’s activities. The danger lay in the industrial machine created by Germans since 1870 and readily turned into a war machine. It is very properly this industrial machine that is engaging attention of the Allied authorities and the plans set forth for neutralizing or destroying it have the merit of being really directed against the obvious and permanent danger we apprehend from Germany.
If, indeed,—and this may well turn out to be the case— the presence of the members of the German General Staff in Germany will stiffen resistance to the measures to be taken to destroy German capacity to make war, their removal by deportation, exile, internment, or definite imprisonment would be a proper and necessary proceeding. But except as a step in achieving the purpose of eliminating the German peril, we cannot present to our minds or justify to our consciences, any reason for dealing with members of the German General Staff otherwise than as prisoners of war. To be sure, even within the Geneva Convention, we are not required to give unconditional liberty to prisoners of war after the conclusion of hostilities, if such prisoners are likely to resume armed warfare, and our conduct toward the German General Staff may well be based on that fact.
I hope it is unnecessary to say that our amply justified dislike of the character and personality of these men cannot render lawful repressive acts directed against them as individuals. We have committed ourselves to a system of justice which excludes punishment of men because we do not like them, however much our dislike is shared by all decent men. And surely we must not allow a governing part in our conduct to be the open or latent lust for vengeance which is none the less evil for being an immediate human reaction.
War as such is a crime in a limited sense only, and a crime for which the guilt must rest on the nation, not as a mystic entity but as a large group of persons jointly engaged in unjustified military aggression. That they can be reached only by repressive measures which will affect a minority who neither approved nor aided this aggression, is one of the incidents of national organization. This unfortunate situation can be remedied to a slight degree by exemptions and exceptions, but only to a slight degree.
While it is the German people in mass who were guilty of the crime of war, rather than the Nazi leaders, the General Staff, the J linkers, or the financiers of the war, it is equally true that these men, all or some of them, and a great many others, Germans and non-Germans, are the ones who must be charged with war crimes in the proper sense of the term.
It is well to consider this term a little, even at the risk of seeming to fall into the academic and legal pitfalls of definitions, distinctions, qualifications, analogies, and the like.
The strange thing about it is that there is nothing difficult or complicated about the term at all. There is really no difference between war crimes and crimes in general. A crime is simply an act by which one person is deprived of his life or property, or injured in body, reputation, or civic status. When this is done under some special circumstances, it may cease to be a crime, despite the fact that the person affected is not the less killed, stripped of his property, imprisoned, or disgraced.
What these special circumstances are which turn what would otherwise be a crime into a lawful and permitted act, depends to some extent on the particular and sometimes peculiar rules of each community. Over most of the civilized world a definite number of such special circumstances have received general acceptance. It is not a crime, for example, to execute a man after conviction of murder, or to fine or imprison him after conviction for other offenses. It is not a crime to kill a man in self-defense and sometimes even in defense of one’s property. There are many other cases, but these at least are generally admitted and to make lawful an act of violence, we must be very sure that it comes within the excepted case.
All that war does is to add another exception to these. War means killing and destruction, but it, too, has its rules. Some of them, indeed, are quite old, millenia older than those gathered into books in Western Europe in the sixteenth and seventeenth centuries. Not all killing, not all destruction, is within the rules of war. To make killing and destruction in war lawful, it must be shown that they are military acts, based on military necessity and directed ta a military end.
When, therefore, we ask about the conduct of Germans at Belsen and Buchenwald, at Lidice and Ourandour, at Warsaw, Lublin, Rotterdam, and at hundreds of other times and in hundreds of other places, when we seek to discover whether these acts were crimes or not, we are not creating a new class of crimes called “war crimes,” but merely asking whether under any generally accepted sense they could reasonably be called acts of military necessity, directed to a military end. If that is not the case, these acts are murder or mayhem, or criminal outrages of a horribly unclassifiable description. Only military purpose could justify them and it is unnecessary to argue that most of them were obviously devoid of military purpose.
I have defined a crime as an act of outrage—the Greeks called it hybris—against another, which does not come within accepted classes of acts that our moral sense justifies. This, to be sure, is not the way in which lawyers in most American jurisdictions would define the word. The formal definition of a crime is that it is a violation of one of the provisions of a statute. Since most states have penal codes, it seems a simple matter to know what a crime is, and for that reason it has been long held in states which have such a code, that unless an act is a violation of a code provision it cannot,be punishable as a crime.
Now, there certainly is no international criminal code and the Germans during the Nazi regime have so manipulated their own code, that quite clearly most of the acts with which we charge them would not be crimes by that code. And if it is really true that unless we can point to a section in a duly enacted penal code we cannot charge a man with a crime, we should probably be unable to make a case against most of the Germans, even those responsible for acts that have shocked humanity.
Our Constitution (Art. IX, 3) forbids Congress to pass an ex post facto law, that is to say, a law which makes an act a crime which was-not so when committed. And in England and entirely without reference to this Constitutional provision, it has long been regarded as against due process of law to punish a man for an act which he could not have supposed to be punishable when he committed it. The penal reformers of Continental Europe, men like Beccaria, Filan-gieri, Montesquieu, took this principle from England, made up a Latin phrase to summarize it and drew from it the doctrine that except by means of a penal code, no act could be a crime. Consequently there are those who declare that there can be no “war crimes” because no printed and published code contains a definition of them and because the code of those persons we seek to hold responsible for atrocities, mostly Germans, would not under the German law in force at the time have been guilty of a punishable offense.
But what these persons have failed to note is that in the country from which this principle was derived there never was a penal code. And in many American states penal codes have been adopted only relatively recently. Most of the acts which are unmistakably crimes, acts like murder, robbery, rape, were punished for centuries although the detailed determination of just what acts were punishable under these names was found merely in custom and tradition and not in a statute.
In other words, those who killed and robbed were punished because ordinary common sense and a general standard of conduct made their acts wrongful and dangerous and the perpetrators were not heard to say that they did not know the character of their acts because no law had specifically prohibited them.
There is no reason whatever why, in the nascent world-community—which is admittedly far from being as yet a world state, or evgn a world’ federation—we cannot declare that acts which, when committed, shock the conscience of the world, are punishable by instrumentalities that can with full authority represent that conscience. It is no great matter whether those instrumentalities are called courts or commissions or special tribunals. There is nothing ess post facto in this, nothing that violates the fundamental principle that men must be aware of the criminal character of their acts when they commit them and not find suddenly that acts which reasonable persons would consider innocent and lawful, entail serious penalties. No rational person could have believed that the horrors for which so much unimpeachable evidence is at hand were innocent and lawful. Among nations that had made any progress toward civilization, they would be punishable anywhere and any time.
The only possible defense would be that they had a definite connection with military activity within the broadest limits that we have for centuries set on military activity. If two thousand years ago a Roman could express disgust and horror at the act of a Roman general in poisoning the water supply of a besieged city, we certainly need not listen today to the disingenuous and cynical plea that torture and massacre of enemy civilians may be brought within the permissible acts of war.
The real question in connection with war crimes is really not whether certain acts were crimes. It is to find out who the criminals were and to determine the procedure which we shall use. Neither is an easy matter. Neither presents insuperable difficulties.
Who are the criminals? Certainly the brutal sadists who killed, flogged, and mutilated men, women, and children, who managed the gas chambers and flung the bodies of their victims into lime pits, certainly these are criminals and as to them, it is a matter merely of establishing their identity. In most cases, it will not be too difficult. Some of their victims have survived and can identify them. In other cases, records are available. In others we shall have open confessions,
And we may be sure that the chief attempt at self-exculpa-tion will consist in the whining plea that they had no choice in the matter, that they acted under orders. They will go further. They will protest—many of them—that they acted under duress, that they had the choice-of carrying out these atrocities or suffering death or imprisonment themselves. How far the last statement is a moral defense, we need not go into. It can be readily enough established that for most of the direct human instruments of these acts, it is not true.
They acted, to be sure, under orders, explicit or implied, but they carried them out with obvious zeal, and in any case while their refusal or reluctance might have displeased their masters, there was no compulsion exerted upon them.
And what of the orders themselves? Is “superior orders” a defense? We do not.so regard it in our penal system. If a man commits a crime at the command of another, both he and his superior are guilty. The one giving the command becomes an accomplice. The one executing it re-’ mains responsible.
This is not a peculiarity of our law, the common law. It is hard to believe that rational persons have a different view of it. There are, it is true, vestiges present of the conditions of ancient society in which slavery and the subordination of serfs or the members of a family, made it unfair to charge an inferior with an act done at his lord’s command. But even in medieval times, vassals owed no obedience to their lords to do a morally wrongful act.
And in modern times, even by the military codes of such countries as France and pre-war Germany, it is expressly provided that the obedience a soldier owes to his officer does not extend to the commission of a morally wrongful act, much less the commission of a crime. This, we may remember, is the case in the countries most completely militarized, in both of which compulsory military service existed and in which the traditional military virtue of absolute and unquestioning obedience to the orders—any orders—of a superior officer might be assumed to be particularly valued. If, even under these military codes, orders did not excuse the commission of a crime, it is hard to see what justification such orders can furnish in any law that bases itself on a generally accepted system of moral values.
While “superior orders” may well be rejected as a plea in exculpation, the existence of such orders is by no means irrelevant. On the contrary, those who gave these orders, whether in the specific cases themselves, or by general provisions which can reasonably be taken as an authorization, are as guilty as the brutal thugs who carried the orders out and they should receive the same treatment.
The “superiors,” in fact, constitute a chain that runs from the commandants of the horrible camps to the general officers in charge of the districts or sectors, whether military or civil, who knowingly permitted these things to happen or by their encouragement after they occurred, occasioned their repetition. And the chain goes further and higher. There is no reason to stop at gauleiters and generals. These men merely carried out policies determined by persons still higher up, policies the consequences of which could not have been obscure or doubtful.
Guilt, of course, in these crimes, as in all crimes, in their proper sense, is individual. As to any man charged with a crime, his place in the chain of causation must be fully made out. And this will be less difficult than it seems. It will include cases in which the superiors will plead ignorance and even affect to feel horror, now that the acts are brought to their notice. In most instances, the affectation will convince no one. For, after all, in morals and good sense, and to a more limited degree, in technical penal law, there is a criminal responsibility attached to acts of omission as well as commission. In modern communities, we do not commonly place to the charge of the ordinary plain citizen a duty to prevent crimes committed by others. But, in extreme cases, even in everyday penal practice a degree of responsibility is attached to those who see crimes committed, or know that they are being committed, and make no effort to stop them, when such an effort is possible and might well be effective.
When we turn to such a situation as that of Germany under the Nazis, it must be evident that for most of the men in official position, there is an undoubted responsibility for crimes committed by subordinates, even when orders cannot be shown. The tight organization of the government made all persons in any official position extremely eager to curry favor with their superiors, and their acts of cruelty and repression had that as its chief purpose. They could not help interpreting the silence or the studied ignorance of their chiefs as a tacit ratification of any act. And it is on the basis of such tacit ratification, when the express announcement of policy is lacking, that many of the Nazi General Staff, practically all the gauleiters and the political officials and the entire directing council of the Nazi party, are subject to indictment as criminals in the most precise sense of the term.
More difficult is the question of procedure. On this matter we must be particularly on our guard against the almost ineradicable, but nonetheless unjustifiable, prejudice of laymen against what they choose to call “technicalities.” The moment the word “procedure” is used, the public is apt to see in their minds the course of those trials which have received publicity in the newspapers, endless examining of jurors and panels, bickerings between lawyers, unintelligible jargon, long speeches, interminable postponements, so that what seems a simple problem is dragged over weeks and even months. We must remember, however, that the vast majority of cases do not gain this newspaper notoriety and are disposed of with much greater efficiency and dispatch, and that the protracted cases owe their length to their dramatic character and to the consequent interest on the part of the very public which inveighs against the unconscionable length of trials.
While all this is true, it must be fully conceded that procedure has been abused in every country and has, to a limited extent, justified the fear and distrust with which it is regarded by the public. But what it is important to keep in mind is that procedure of some sort is the essence of due process to which in our fundamental law we have unreservedly committed ourselves. Absence of procedure means lynching, the famous “wild justice” that satisfies the immediate crude urge for vengeance, but satisfies nothing else.
That we may disregard altogether the demand for vengeance on the part of those whom the crimes of the Nazis have outraged is too much to ask. Vindictiveness is still an element even in our penal theory and in the earlier stages of society played the largest part in it. But we have been busy for centuries in getting rid of more and more of it. The difficulty with crude vindictiveness is that it strikes blindly. It is as apt to strike casual bystanders or wholly innocent persons—Cinna, the poet, as well as Cinna, the conspirator. It is admittedly a denial of the very notion of justice which our indictment charges Germany and individual Germans with arrogantly violating. It inevitably stimulates retaliatory crimes which take on a color of justification because they are an answer to violence which puts on a similar color. Both lynching and the resultant terrorism are based on the doctrine of like for like, and the so-called “Vehm-murders” in Germany after the last,war show us the extent to which these things can go on.
Vindictiveness which we dare not ignore must certainly not be the essence of our attitude to war crimes, since we have made a brave effort to eliminate it in our ordinary attitude to crimes in general. To seize Nazis and hang them at once is perhaps the simplest and most immediate way out. Its repercussions may perhaps make us wonder whether the simplest and easiest way out is also the most effective for the purposes that punishment professes.
Since we must have a trial procedure and since the world will not patiently submit to a procedure that is long or unintelligible, can one be devised that is neither long nor unintelligible and still satisfies the fundamental demands of fairness which are embodied in the symbolic phrase, “due process”?
Our courts have met that problem long ago. The fundamentals are few. The accused must know in advance the charges against them. They must be faced by their accusers. They must be permitted counsel. They must be permitted to summon witnesses on their behalf. All this must be done in good faith on botli sides and the court must have the power to determine when the accuser or the accused seeks to abuse his procedural rights. The court may decide that many prisoners may be tried together. Indeed, sometimes due process requires that they should be. The court may refuse to summon all the witnesses the accused demands or hear all the accusers offer. The court may peremptorily restrict speeches. There is no reason why more than a few days should be necessary for a trial, or in some cases a very few weeks. Since we are not dealing with obscure or complicated issues, but merely with the one question of whether an accused man directly or by indirect causation committed a criminally outrageous act against another, it need not take a lengthy investigation to determine the fact.
We need not be concerned too much about the fact that Nazi sympathizers in Germany and elsewhere and a certain number of persons who profess skepticism about the effectiveness of punishment, will treat an expedited trial in which these fundamentals are observed, as merely a solemn farce which is a lynching in legal form. The question has been asked, “Is it seriously supposed that Hitler, if he were alive, or Himmler, could be acquitted? And if their conviction is certain, a trial is obviously a mummery?”
The answer is, of course, that while it is extremely unlikely that Himmler or Hitler would be acquitted, this fact does not obviate the trial or render it unnecessary. A murderer caught in the act or captured after hot pursuit is not likely to be acquitted, but must none the less be tried. And we may go further and say that if Hitler should be shown to have been mentally irresponsible, not by elaborate psychiatric tests, but to the satisfaction of ordinary men and women—which is a highly unlikely contingency—, his condemnation and punishment would probably not follow and the court’s decision would be generally approved.
It is a real trial that we are assuming, even if it is an expeditious and strongly controlled trial. It will be all the more effective if it carefully eschews any word of denunciation or abuse in the prosecution and forbids on the defendant’s side any appeal to emotion or compassion. It is idle to assert that such a trial is impossible and, whatever the immediate reaction, it will lay no basis for the kind of sullen resentment that more drastic measures will entail.
That the court will be international in character is axiomatic. What these men are accused of is not the violation of a national statute or even a national idea of rightful conduct. The nations involved formed a loose body long before their representatives prepared a charter at San Francisco and created instruments for corporate political action. They inherited from widely differing sources, on the Nile, the Ganges, and the Yang-Tse, on the Acropolis and the Capitoline Hill, and most of all, perhaps, from the little country between the Jordan and the Great Sea, a valuation of human relations that made arrogant contempt of one human being by another an act of wickedness and made acts which enforced this contempt the essence of crime. What the court and the procedure we are here proposing may well do is to strengthen the sense of a common humanity by creating the machinery by which those who ignore this common humanity are dealt with as in any society we deal with the unmistakable enemies of that society. We reject them or render them harmless.
All that is added by the notion of “war crimes” with the attendant procedure and punishment of such crimes, is to apply this standard of valuation under circumstances in which it is difficult to apply it. The difficulty is not an excuse for refusing to attempt the application. The world need not admit that it must take periodic vacations from morality.
There are crimes against this accepted sense of right conduct which are not logically war crimes but which cannot be separated from them. Those are crimes which the Germans have committed against their own nationals, both before and during the war. The greatest sufferers were the Jews, but they were not by any means the only sufferers. If the courts we are postulating cannot take jurisdiction of the outrages committed by governmental authorities against these minority groups, we have, as in the case of the assumed anarchy of war, a situation in which outrage by man against man is condoned or is allowed impunity.
Surely the answer is that this would be intolerable. Once we hold that anyone, the head of a state or the degenerate thug he employs, is responsible to a world court for acts done under pretense of war, it is an easy step to impose the same responsibility whenever no other way exists in which an obvious crime can be penalized. The Jews, the Poles, the Catholic and Protestant clergy, whom Hitler attempted to crush by methods of cold and systematic brutality, can as readily be given access to the courts which will try war criminals, as the prisoners of war whom the Germans starved and beat to death. The difference between the two groups is a difference of definition and abstract casuistry. It may be consciously disregarded.
Will the punishment of Nazi criminals have an effect commensurable with the efforts that have been made to punish them with justice and dignity? The answer must be in the affirmative, unless we are willing to admit that all punishment is futile. Those who hold this view have not yet convinced the world that a society can be organized which dispenses with all penal law. It is unlikely that the world community will be the first state which can safely dispense with penal sanctions.