WAR CRIMES: The Source

That Justice Robert Jackson had made a great speech when he opened the Nürnberg trial, the world already knew. Just how great it was the world saw more clearly last week when Sir Hartley William Shawcross, Britain’s Attorney General, opened the case for the British prosecution. Sir Hartley is one of Britain’s most brilliant jurists. His day-long speech was an impressive, tightly logical, exhaustive dissertation. Yet rarely did it match Jackson’s bold attempt to find law in ultimate source—the principles of men— rather than in statute, treaty, precedent.

It was largely a matter of emphasis. Both lawyers pointed to the sheaf of treaties which nations had signed and sealed through the years, in the anxious hope of banning war. But Sir Hartley interpreted the treaties as laws that applied to individuals, even though everyone knew that they were not meant to be so applied.

The American had probed beneath surface technicalities. To him, the violation of international treaties was an aggravating circumstance; the German invasion of Poland would have been a crime without it?. German-Polish non-aggression pact. The treaties’ existence was important to Jackson chiefly as a symptom that the world’s conscience had begun to view aggression and war as evils that must be punished. Said he: “Plain people … revolted at such fictions [as war’s legality] and legalisms so contrary to ethical principles, and demanded checks on war immunity. . . .”