Evening star., 1945-12-25
Letters to The Star
Supports Legality of Proceedings
of Court of Nuremberg

of Court of Nuremberg
To the Editor of The Star:
The letter of Walter H, Zeydel with
regard to the Nuremberg trials, pub
lished in The Star of December Is,
presents an interesting statement which
deserves consideration and comment
But in my judgment Mr.. Zeydel's
analysis of the legal principles supposed
to underlie these proceedings is incom-
plete and erroneous. His position is
perhaps adequately summarized in one
of his own statements, as follows: "It
Is foregone conclusion that all who
stand accused will be found guilty by
court which arrogates to itself
jurisdiction which it does not have and
enforces laws which do not exist"
Let us consider first the question of
jurisdiction. The court at Nuremberg
is sitting in Germany and is consti-
tuted by the authority of the military
government of the four Allied powers
which has de jure jurisdiction over all
German territory by conquest and by
the terms of the unconditional surren-
der of the pre-existing German govern
ment. This military government of the
occupying powers is the only govern
ment that exists in Germany today
either de jure or de facto There is no
other government" in German terri
tory. Hence all legal" authority and
the legal jurisdiction of all courts of
whatever nature sitting in Germany
are derived in a fundamental or CON
stitutional" sense from the legal powers
OF the military government The
defendants at Nuremberg all are Ger
man nationals. To maintain that the
military authority governing Germany
cannot invest newly constituted judi
cial tribunal with authority to try in
German territory German nationals
accused as war criminals is really to
maintain that no tribunal can be vested
with authority to try alleged criminals
/ in Germany in any case whatever. All
such tribunals in Germany derive their
present legal authority and Jurisdiction
from the military government which
sustains them and gives them legal
authority in praesenti even If it did
not create them historically. OF course,
the military government in Germany
has created" many other courts which
are functioning in Germany and whose
authority is not presently in dispute.
The power TO create the Nuremberg
tribunal and invest it with Jurisdiction
to try specified class of alleged crimi-
nal acts rests on the same basis as the
power to create these other tribunals.
Argues Tribunals Integrity.
Mr.. Zeydel's error in this respect is
well illustrated by the final sentence
of his letter, which reads as follows
I'm conclusion, it seems to me that 1t
would have been wiser to turn all Ger
man violators of the established rules
OF war over to strictly military courts
rather than risk setting back inter-
national law by vigilante procedure"
But how could the fundamental legal
difficulties as to legal jurisdiction and
pre-existing system of law, which Mr..
Zeydel is attempting to stress, be over
come by using strictly military"
-.
must have legal jurisdiction of the
subject-matter of the case, and must
administer pre-existing law, and must
not act with arbitrary discretion. In
ternational law can be "set back" by
military tribunals as well as others.
The idea that military courts have
nothing to do with the development of
international law, and persons inter-
ested in international law can wash
their hands" Of any case tried by gold
braid officers, who do not happen to
wear black robes, is a curious one. The
truth Is that the Nuremberg court Is
in essence military court, since it
derives all its powers from a military
government and has all the powers
characteristic Of military court.
Would Mr.. Zeydel's objections really
be overcome if President Truman should
give Mr.. Biddle an Army commission
as a brigadier general, and if the
British, French and Russian govern
ments similarly should give military
titles to their judicial representatives?
Says Law Is Juristic.
Let us consider, secondly and very
briefly, whether there is any pre-
existing law" that can be applied to
these war criminals. Mr.. Zeydel's
position seems to be that international
law always must have q definite
legislative basis, in treaties and inter-
national agreements He seems to
demand precise code OF criminal
law and procedure which must have
been duly enacted before the happen
ing Of the acts now described as
criminal" But surely this position
that statutes always must come first
cannot be maintained with regard to
the general development of law. The
common law of England was not
created by legislation but by juristic
process, which may be called judicial
lawmaking, but which always has been
regarded as distinct from legislation
properly so designated. The common
law development included the develop
ment of a system of criminal law and
Of formal criminal procedure. Equity
jurisprudence is similarly q juristic
| product, judge-made law, not a series
of legislative enactments.
In the field of international law,
many decisions of local courts in the
| United States and in European and
South American countries have de-
veloped the principles of international
law regarded as part of municipal