The Nuremberg Judgment

ON September 30, 1946, seven years and a month after the Second World War began with the onset of the German armies across the western frontiers of Poland, the International Military Tribunal at Nuremberg pronounced a mainly unanimous judgment in a document of 50,000 words on the German personalities and organisations charged before it. This judgment has certainly been an epoch-making event. Nothing at all comparable has ever taken place before. For the first time a court representing the principal nations of the world emerging victorious from a great war has formally tried the political leaders of a sovereign state for responsibility for waging aggressive war defined as a crime. The defendants at Nuremberg have also, of course, been tried for all manner of atrocities committed in connection with German aggressions, and this has not involved any new principle of jurisprudence, for it has long been recognised that the victor in war has the right to try by court-martial officers and others of the defeated nation who have committed atrocities contrary to the accepted laws of war against the victor's nationals. Although this right has not hitherto been invoked in application to the rulers and highest military authorities of an enemy country, it could have been so applied to the Nazi leaders and it provided grounds for the punishment of most of them—all those who have been convicted at Nuremberg on charges of "War Crimes" in the narrow sense and "Crimes against Humanity"—even without any accusation of "Crimes against Peace." But responsibility for the war itself has been the central charge in the Nuremberg indictment, and the Tribunal has declared in its judgment: "To initiate a war of aggression is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

It is of interest to recall that when in 1918 the question of trying the Kaiser came up before the British War Cabinet, the Attorney-General (who was later to become Lord Birkenhead) reported in favour of trying him for having committed offences against international law by the violation of the guaranteed neutrality of Belgium and by authorising unrestricted submarine warfare, but advised against prosecution for "the crime against humanity of having caused the war," not on the ground that such a charge was legally inadmissible, but because "we do not wish to be confronted by a meticulous examination of the history of European politics for the past twenty years." Lord Birkenhead indeed saw clearly that a charge of war guilt involves a record of national policies, and that such a record may not leave unscathed the reputations of the prosecuting governments. In the Nuremberg case such a historical record has actually been written; the judgment clearly claims—or at any rate will be claimed—to stand as an adequate history of the great events with which it deals as well as being a legal verdict on the accused. This aspect of the trial cannot be overlooked in any estimate of what has been achieved by the judicial process.

It has in fact been easy on the evidence to obtain a conviction of the Nazi leadership on the charge of planning and initiating aggressive wars. The prosecution has had at its disposal, not only the record of German acts which was available to the Allied Governments before the end of the war, but also a great mass of documentary material captured in Germany, including minutes of secret conferences in which Hitler expounded his plans to a select circle of his colleagues. These documents, the authenticity of which was not seriously challenged by the defence, provided the most striking proof of the deliberateness and premeditation of Hitler's aggressions and revealed the hollowness of the various excuses made for them at the time by Nazi propaganda.

In the minutes of a secret conference held in the Reich chancellery on November 5, 1937, Hitler is recorded as saying to his Foreign Minister (then Freiherr von Neurath), his War Minister and the commanders-in-chief of the three fighting services: "The question for Germany is where the greatest possible conquest could be made at the lowest cost." This declaration was preceded by an allocution on economic theory and racial biology justifying a policy of acquiring fresh "living space" for the German nation. Hitler maintained that neither autarky nor international trade could provide Germany with satisfactory economic life and scope for its capacities. He went on:

The only way out, and one which may appear imaginary, is the securing of greater living space, an endeavour which at all times has been the cause of formations of States and movements of nations. It is explicable that this tendency finds no interest in Geneva and in satisfied States . . . every space expansion can only be effected by breaking resistance and taking risks. Even setbacks are unavoidable; neither formerly nor today has space been found without an owner; the attacker always comes up against the proprietor.

There is nothing here about any external threat to Germany which might justify extraordinary war preparations; the purpose is quite frankly territorial conquest. Hitler admits, however, that Germany "must reckon with its two hateful enemies, England and France, to whom a strong German colossus in the centre of Europe would be intolerable," and speculates on the when and how of "the decision to apply force." He concludes that action must in any case be taken not later than the period 1943-45 (because, for reasons which he gives, he expects Germany's relative position to deteriorate after that date), but that war against Czechoslovakia should be launched earlier if France is either paralysed by internal political crisis or diverted by a war with Italy.

This document of the autumn of 1937 reveals the long-term plan with the utmost lucidity, but the stages in its accomplishment were liable to adjustment according to circumstances, and the minutes of later conferences show Hitler making up his mind on his estimate of the current situation. In a very important conference held on May 23, 1939, shortly after the giving of the British guarantee to Poland, Hitler explains that the problem for solution is "to attack Poland at the first suitable opportunity." He says he will try to isolate Poland diplomatically, but if this proves impossible, and "if it is not certain that a German-Polish conflict will not lead to war in the West," then "it will be better to attack in the West." The most interesting revelation of this document is that Hitler in the spring of 1939 was in favour of starting a war by direct attack on France and the Low Countries on the 1914 model; he was still assuming the hostility of Russia, but told the conference that "it is not impossible that Russia will show herself to be disinterested in the destruction of Poland."

The Nuremberg judgment uses these documents to establish beyond challenge the calculated aggressiveness of Nazi policy. It is indeed proved conclusively that Hitler and his responsible ministers and military commanders undertook aggressive wars with the utmost premeditation—which is all that needed to be proved for the legal condemnation of those of them brought before the Nuremberg Tribunal. However, at one point in the record of events included in the judgment a curious oblivion seems to have affected the judges with regard not only to facts which have long been known but also to important evidence given during the trial itself. As we approach the subject of the German-Soviet Non-Aggression Pact of August, 1939, some inhibition appears to interrupt the flow of narrative and the whole episode is passed over with the bald statement that "the defendant Ribbentrop was sent to Moscow to negotiate a non-aggression pact with the Soviet Union."

During the trial the defence lawyer Seidl produced witnesses, including Baron von Weizsaecker, permanent Secretary of State in the German Foreign Office from 1938 to 1943, who testified about a secret treaty attached to the Non-Aggression Pact and providing for territorial partition of six European states between Germany and the Soviet Union.

The prosecution made no attempt to disprove this evidence; nevertheless, the judgment completely ignores it. Such silence unfortunately shows that the Nuremberg Tribunal is only within certain limits an independent judiciary. In ordinary criminal law it would certainly be a remarkable case if a judge, summing up on a charge of murder, were to avoid mentioning evidence on the part played by an accomplice in the murder because the evidence revealed that the judge himself had been that accomplice. That nobody thinks such reticence extraordinary in the case of Nuremberg merely demonstrates how far we still really are from anything that can be called a "reign of law" in international affairs. Both Britain and France are on record as having concurred in the expulsion of the Soviet Union from the League of Nations for its unprovoked attack on Finland in 1939; this verdict still stands and is not modified by anything which has happened since. In 1939 Moscow openly gloried in military cooperation with Germany for the destruction of Poland, "that ugly offspring of the Versailles Treaty," and Ribbentrop in his last plea quoted a cable of congratulation from Stalin as proof that the Soviet Union had not then regarded the war against Poland as an aggression. The contrast between 1939 and 1946 is indeed fantastic, and it is too much to expect that either historians in the future or Germans in the present will share in the current United Nations convention of not seeing it.

Nor should the Western world console itself that the Russians alone stand condemned at the bar of the Allies' own justice. Waging aggressive war is the chief count in the indictment, but it is not the only one. Among crimes against humanity stands the offence of the indiscriminate bombing of civilian populations. Can the Americans who dropped the atom bomb and the British who destroyed the cities of Western Germany plead "not guilty" on this count? Crimes against humanity also include the mass expulsion of populations. Can the Anglo-Saxon leaders who at Potsdam condoned the expulsion of millions of Germans from their homes hold themselves completely innocent?

The result of the Nuremberg trial has been a well-deserved fate for a group of evil men whose terrible guilt has been thoroughly demonstrated for all time; yet the force of the condemnation is not unaffected by the fact that the nations sitting in judgment have so clearly proclaimed themselves exempt from the law which they have administered.