Nurnberg 1946--The Rt Ial Paul Reuter

Notre Dame Law Review Volume 23 | Issue 1 Article 5 11-1-1947 Nurnberg 1946--The rT ial Paul Reuter Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Paul Reuter, Nurnberg 1946--The Trial, 23 Notre Dame L. Rev. 76 (1947). Available at: http://scholarship.law.nd.edu/ndlr/vol23/iss1/5 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. NURNBERG 1946-THE TRIAL In January, 1947, the Notre Dame Lawyer published the first Eng- lish translation of "The Significance of the Nurnberg Trials for Ger- many and the World," by the German philosopher Karl Jaspers. With the permission of the editor of La Vie Intellectuelle we publish here a French view of the trials by Paul Reuter.'-Editor. During the war, the Allies had been led to an increasingly precise and concurring position on the procedures which they intended to use against German war criminals after the victory. Several solemn declarations followed one another: those on January 12, 1942, December 12, 1942 (issued simul- taneously in London, Washington, and Moscow), and the Moscow Declaration of October 30, 1943. From October 20, 1943 athe United Nations Commission on War Crimes, an organization for research and information combining the western Allies, functioned in London. The Potsdam Agree- ment of 1945 laid down the general principles of trial; the war criminals were to be tried according to the law and by the courts of each accusing country. For the major criminals, whose crimes could not be geographically localized, an international military tribunal was to be formed. The London Agreement of August 8, 1945 carried out this directive by establishing the tribunal; to the four great nations were to be added twenty other powers who could take part in the deliberations which made up the international public organization. Not without difficulty, the Allies succeeded in agreeing on a list of twenty-four names, and Nilrnberg was selected as the seat of the tribunal. The charges were issued jointly in Berlin, October 18, 1945; the trial opened on November 20, 1945, and closed on October 1, 1946, after four hundred four sessions. The Inter-allied Control Council of Berlin carried out the sentences, particularly the executions. 1 Reuter, Nurermberg 1946-Le Proces, (France; 1946) La Vie Intellectuee, December, 1946. NURNBERG 1946-THE TRIAL The first trial may be followed by a number of similar trials, providing the Allies agree on the criminals to be called before the tribunal. For political reasons it seems likely that these other trials, particularly of the German industrialists and of Schacht, acquitted by the Niirnberg court, will be heard before courts established in each zone of occupation by its occupying authority. But this first trial, unique of its kind, is in itself an important event. Students of history and of law will delve not only into the monumental opinion (published in extenso in a voluminous pamphlet by the Journal officiel) but also into the hundreds of thousands of documents, speeches by prosecution and defense, evidence of all sorts, whose quantity presents difficult problems of classification and preservation. But this affair is not the property of technicians alone. It touches all those who have lived through the tense years; it will probably weigh heavily, for good or for evil, on all who are destined to witness the days to come, days which will, alas, be no less tragic, according to all indications. How Is This Trial To Be Judged? What point of view should one take in order to give to this trial its exact significance? That is indeed the key question which determines both the critical evaluation and the choice of facts and essential elements which one plans to stress. Should one evoke the memory of the deaths and infinite suffering of five years of misery? Should one take the im- possible wager of examining consciences and of guessing the judgment of God? Should one examine in the light of the opinion the requirements of human legal institutions and the real developments in international law? Should one measure the political effects of such an affair? It is our own opinion that the first two questions ought not hold our attention for long; but it is highly important not to NOTRE DAME LAWYER confuse these four methods, which are those of human emo- tions, of divine justice, of law and of politics. We will be pardoned for insisting in this article on these points which seem self-evident. But the trial has been inter- preted by a press which with rare exceptions, has displayed the sorry limitations of a more than ordinary mediocrity. During ten long months of proceedings public interest waned, and in a trial which owed it to itself to be sensational the lengthy examinations and cross-examinations, made according to Anglo-Saxon trial procedure, often obscured the main question and led to dullness which discouraged the average public. Thus it happened that fateful incidents and moments passed unnoticed or nearly so. So it was that the French press failed to seize upon the matter of the secret protocol in the Russo-German Pact of 1939 which almost upset the very existence of the tribunal. Then when the verdict was announced acquitting Papen, Schacht and Fritsche and failing to condemn the Supreme Command and the S. A., the press let itself go over the scandal and gave free rein to a passion which recalled the recent years when one of the future victors declared, "The only good Germans are dead ones." It is evident that on the ground of retaliation there was no reason for any acquittal; that was more- over the feeling of Goering himself who had little love for judicial procedure. In fact he let it be understood in the course of the trial that he did not understand why they were making so much ceremony about putting him to death. The solution consisting of executing criminals after having simply identified them definitely (obligation cleared after having exposed the corpse to public view) would have pre- sented a technical difficulty because in accordance with the retaliation principle several millions of Germans would have had to be massacred. Enough irony: it is unbecoming. It will always be to the credit of the Allies that they judged the authors of the well- known and monstrous crimes, that they did so according to NURNBERG 1946-THE TRIAL traditional rules, public argument and cross-examination, free defense, etc. This judicial procedure clearly carries with it a major result: the possibility of an acquittal. Many of our contemporaries are unaware of this fundamental rule of legal trials. If one wishes-and it can be one-to discuss an acquittal, one must place himself on the same ground on which the judge is placed, on legal ground. In an entirely opposite sense, we can not examine the judgment of God. Only two of the accused, Fxanck and von Schirach, the first condemned to death and executed, the second punished with twenty years at hard labor, only these two showed any repentance and were converted after the collapse of Naziism. The others more or less clearly pleaded not guilty. A basic corruption of conscience, which does not preclude complete good faith, was apparent in many of the replies and statements; aberrations as radical as Naziism poison body and soul and destroy the very foundations of morality. The arguments bore striking testimony to this fact. That does not authorize us to reckon the divine judgment. The Essential Questions Finally two questions remain essential, and concerning them we should like to offer a few brief remarks. First of all: what are the characteristics of the Niirnberg verdict from a judicial point of view? It is on this basis, where it was placed, that this affair must be examined. Second: what are the effects of this verdict on the future of peace? In reality, every legal punishment follows complex goals. This is true even of the correction of the least infraction of civil law. Faced with such great crimes the attainment of these goals assumes an exceptional importance; the return of those horrors must be prevented and peace must be assured. The punishment must then produce a healthy fear in the public mind; it must also-and this is the attitude of modem penal law-bring about an improvement in the guilty one, cure NOTRE DAME LAWYER him of his vicious tendencies. It will be proper to fit the Niirnberg verdict into the framework of international politics, particularly where they concern peace and the treat- ment of Germany, and to consider it in the light of German opinions. I. THE JUDICIAL ASPECTS OF THE NURNBERG DECISION This is the first time in history that an international penal tribunal has functioned, since the attempt to judge the war criminals of 1914-1918, as prescribed in Articles 227 and following of the Versailles Treaty, remained a dead letter. The originality of this body explains the objections raised against it. A Truly InternationalTribunal The tribunal would not be a truly international tribunal in the technical sense of the word. This purely legal objec- tion often is expressed in a simpler form: the Niirnberg court would not offer the guarantees of an authentically international tribunal. No one dared condemn the cumber- some but impartial procedure of cross-examination or a defense conducted by German lawyers several of whom were notorious Nazis.

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