Numbering Trials

The Nuremberg War Trial has a strong claim to be considered the most significant as well as the most debatable event since the conclusion of hostilities. To those who support the trial it promises the first effective recognition of a world law for the punishment of malefactors who start wars or conduct them in bestial fashion. To the adverse critics the trial appears in many aspects a negation of principles which they regard as the heart of any system of justice under law.

This sharp division of opinion has not been fully aired largely because it relates to an issue of foreign policy upon which this nation has already acted and on which debate may seem useless or, worse, merely to impair this country's prestige and power abroad. Moreover, to the casual newspaper reader the long-range implications of the trial are not obvious. He sees most clearly that there are in the dock a score of widely known men who plainly deserve punishment. And he is pleased to note that four victorious nations, who have not been unanimous on all post-war questions, have, by a miracle of administrative skill, united in a proceeding that is overcoming the obstacles of varied languages, professional habits, and legal traditions. But the more profound observer is aware that the foundations of the Nuremberg trial may mark a watershed of modern law. (Taylor 469)

The starting point is the indictment of October 18, 1945, charging some twenty individuals and various organizations, in four counts, with conspiracy, crimes against peace, war crimes, and crimes against humanity. Let me examine the offenses that are called in Count 3 of the indictment "war crimes," in the strict sense.

It is sometimes said that there is no international law of war crimes. But most jurists would agree that there is at least an abbreviated list of war crimes upon which the nations of the world have agreed. Thus in Articles 46 and 47 of the Hague Convention of 1907 the United States and many other countries accepted the rules that in an occupied territory of a hostile state "family honour and rights, the lives of persons, and private property, as well as religious conviction and practice, must be respected. Private property cannot be confiscated. Pillage is formally forbidden." And consistently the Supreme Court of the United States has recognized that rules of this character are part of our law. In short, there can be not doubt of the legal right of this nation, prior to the signing of a peace treaty to use a military tribunal for the purpose of trying and punishing a German if, as Count 3 charges, in occupied territory he murdered a Polish civilian, or tortured a Czech, or raped a Frenchwoman, or robbed a Belgian. Moreover, there is no doubt of the military tribunal's parallel right to try and to punish a German if he has murdered, tortured, or maltreated a prisoner of war. (Sadat 52)

The feeling against a law evolved after the commission of an offense ...