Evening star., 1945-12-15
Letters to The Star
Disaerees With Justice Jackson
Concerning Nuremberg
Concerning

D1Sa2reeS With Justice jackson
Concerning Nuremberg
To the Editor of The Star:
Too little attention has been given to
the serious setback threatening our en-
tire framework of law by the star cham
ber procedure Of the Nuremberg trial.
1t Is foregone conclusion that all who
stand accused will be found guilty by
court which arrogates to itself juris-
diction it does not have and enforces
laws which do not exist.
Let us examine in some detail the
judicial" bases of this trial. Justice
Jackson. the spokesman for the Amer
ican representation on the court, has
told us in his original report to the
President and in his recent address to
the war crimes court that he Is resting
his case on the common sense Of justice.
Admitting the paucity of precedents in
the early concepts of international law
he makes the point that although this
branch of law has been hampered in
its development, it has grown by adopt
ing settled principles to new situations
In support of this reasoning he invokes
the doctrines of Grotius of the just and
unjust war-the war of defense and the
war of aggression. He makes the state
ment that "a war of aggression is a
crime, and that modern international
law has abolished the defense that those
who incite or wage it are engaged in
legitimate business" This statement
he supports by the authority OF the
Geneva protocol, the Kellogg BRAND
pact and a resolution of the Sixth In
ternational Conference of American
States. A careful reading of all three
of these instruments fails to reveal how
they can be held to apply to individuals
Furthermore, only the Geneva protocol
makes any provision with respect to a
court competent to determine the ex-
istence of such transgressions. The other
two documents simply condemn agrees
sion as such but provide no procedure
or punishment.
One of the basic principles Of all es-
tablished legal systems is the compe-
tency of the court trying the accused.
Another equally important factor is a
= body or system of law which has been
legally constituted and instituted. Both
are lacking in the Nuremberg trial.
These principles were carefully con-
sidered by the Institute of International
Law and the Interparliamentary Union,
which in the days following the First
World War, worked out drafts for an
international crimes court. 1t was dur
ing the discussion of Baron Descamps'
draft for a court that the late Elihu
Root pointed out that before an inter-
national tribunal is competent to try
individuals for international offenses
can be established, states must create
the law and procedure applicable in
such court, The old legal maxim:
Nulla poena sine lege is called to mind.
Returning to the validity of the in
struments on which the Nuremberg
court is leaning SO heavily, the Geneva
protocol, signed on october 2, 1924.
never has been ratified. 1t therefore is
difficult to see how such a document,
which by its very terms call for ratifica-
ton, carries any weight in legal pro-
cedure. The Kellogg BRAND pact Au-
gust 27, 1928, by its provisions simply
condemns recourse to war for the So
luton of international controversies and
renounces it as an instrument Of ma
tional policy, and provides, in article 2,
for settlement of disputes of whatever
nature by pacific means. But these
statements are not implemented in any
way Just how. are the principles of
this pact to be applied to individuals.
and where is the provision for court
competent to determine guilt or mete
out punishment?
Finally, we come to the resolution of
the Sixth International Conference of
American States cited by Justice Jack
son, which says: considering that war
of aggression constitutes an internation-
al crime against human species, the Con-
ference resolves: That all aggression is
considered Illicit and as such declared
prohibited" Resolutions of interna-
tional conference, are at best of an
ephemeral nature. They usually are
SlIIllly IotliCi ldSo4AotA1 anu
expressions which the representatives
of the countries present at the particu-
lar conference know fully we'll never
will be ratified in treaty form, hence
they are expressed in terms of resolu-
tions, DEGREES or motions. Likewise, in
this case, there has been no formal
ratification, no enabling legislation and
no court set up which is competent to
determine guilt or innocence.
In conclusion, it seems to me that it
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 interna-
tional law by vigilante procedure.
WALTER H. ZEYDEI.