The representatives of the liberal-democratic Western powers on the other hand have betrayed all legal principles of the cultured nations and juristically submitted to Soviet despotism. In the English House of Lords on 5 May 1949, three years after the unjust verdict at Nuremberg, Lord Hankey pronounced the moral and juristic death-sentence on the French, American, and English members of the International Military Tribunal, as he affirmed before the plenum with an elevated voice that there was “something cynical and revolting in the spectacle of British, French and American judges sitting on the Bench with colleagues representing a country which before, during, and since the trials had perpetrated half the political crimes in the calendar.”
Mr. Justice Lawrence saw himself compelled 14 days later to take refuge from Lord Hankey’s reproach in the pretense that this was an insult to his Soviet colleagues who had demonstrated “their ability and fairness” in Nuremberg.
The strongest evidence of the demoralizing effect of this absolute capitulation to Soviet class-justice came from Chief Justice Jackson himself. He, who uncontrollably invokes the west-east charter again and again in order then to go back to manipulating with arguments about international law, dares on 19 March 1946 to go so far as to admit that the expansion of the war by France and England in 1939 does not represent an act of aggression by Germany. But since it happens to be the case that Germany declared war on neither France nor England, but rather the reverse, and since without attack no state of war can occur, France and England, according to all rules of logic, must have been the aggressors. On 8 July 1946 defense-attorney Dr. Horn nailed Jackson down on this matter:
“At the session of March 19, 1946, Mr. Justice Jackson interpreting the indictment has stressed the point that the extension of the war brought about by the Western powers did not constitute a punishable aggression on the side of Germany. This interpretation is in keeping with his general argumentation concerning the notion of aggression. Should he want to carry this through quite consistently, he would logically have to declare Great Britain and France aggressors of Germany for having brought about the state of war by means of the ultimatum.” [Martin Horn, Final Argument for Ribbentrop, IMT transcript, Supplement B, Part I]
If the Kellogg Pact had still been valid in 1939, the Nuremberg Tribunal would have had to prosecute France and England, specifically the French and English politicians and generals, of crimes against peace. One would get into such contradictions if Soviet class-justice is mixed with European principles of law. If this is embarrassing for an American jurist like Jackson, it is an enduring disgrace for Great Britain, that this land of world-famous jurisdiction supplies Mr. Justice Lawrence as the president, the primary responsible party, for a trial that employs Soviet class-justice against politicians and officers of a cultured European people.
Since none of the treaties concluded before 1939 was still in force at the time of the outbreak of the German-Polish conflict — neither the charter of the League of Nations, nor the Locarno Treaty, nor, least of all, the Kellogg Pact — only the motive would remain as the basis for an accusation of “crime” against a peace that was not protected by law: “criminal,” they say, is a war against the Un-peace of Versailles; “permitted,” indeed moral and virtuous, is a war for the perpetuation of the unjust borders established at Versailles. After futile attempts to lend the halo of law to this political prosecution of the vanquished by the victors, again and again one resorts to undisguised force and arbitrariness.
Meanwhile decades have passed [between 1945 and 1965] without bringing any genuine peace, but small and dirty wars, especially in Africa and Asia, the forward skirmishes of the threatening Third World War, and at every scene of battle those powers that purported in Nuremberg that they wanted to prohibit war forever participated directly or indirectly. As the Wilsonian League of Nations was founded in 1919 to perpetuate Un-peace, so was Roosevelt’s U.N.O. constructed after 1945: with the same goal and the same result.
The new “peaceful world order” 20 years later still has not achieved any unity about the fundamental question that the Nuremberg inquisitors presumed had been solved for the longest time, about the problem of the how to distinguish defensive and aggressive war. The U.N.O. Committee on the Definition of Aggression, which has been debating for 15 years, must in these very days, on 16 April 1965, state that there is still no agreement to be reached. They are adjourning now until 1967 and are making humanity wait again for the solution of an insoluble problem.* Let us again compare to this reality the phrases with which Jackson wants to defend the Allied justice of revenge. In his opening address he declares:
“Any resort to war — to any kind of a war — is a resort to means that are inherently criminal.” [Robert H. Jackson, Opening Statement, IMT transcript, 21 November 1945]
Where and when in the past decades was any government of any nation held responsible for any acts of war? If the system of justice constructed for Nuremberg by Jackson and Nikitchenko had functioned, all the ministers and militaries responsible for these subsequent wars would have ended very long ago behind penitentiary-walls or on the gallows of international jurisdiction. The guilty parties would necessarily have been found on one side or the other of those powers that indicted and hanged in Nuremberg.
* The United Nations’ Committee on the Definition of Aggression finally in 1974 (after 24 years) arrived at a kind of definition, calling aggression the use of military force by one state against another, but it was really no definition, insofar as it also empowered the U.N. Security Council to designate any act not fitting that description as “aggression.” (Eric Pace, New York Times News Service, 13April 1974) What it means is that the wealthier states that have ways to create hardship for other states without resorting to overt violence will have international support for crushing any less-powerful state that strikes back overtly, and a less-powerful state runs the risk of being labeled an aggressor for crossing those more powerful states even non-violently. It seems likely that schemes for maintaining world-peace are always ultimately schemes for maintaining the supremacy of the currently dominant power or powers. It was so at Versailles in 1919, and just the same at San Francisco in 1945.