"To pass these defendants a poisoned chalice," said U.S. Prosecutor Robert Jackson in 1945 at the start of the first Nürnberg war crimes trials, "is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspiration to do justice."
From the outset, the judging nations were not quite sure of what rights they had over the accused, or under what laws the conduct of the accused should be judged. The hope was that these questions would become clear as the trials unfolded. Nürnberg, at first, seemed to bear out this hope—at least, the proceedings were conducted with dignity and in a spirit of fair play which diverted attention from the underlying absence of clarity. After three years of war trials, however, the world is no farther along than it was in 1945 to an understanding of whether these proceedings represent justice or victor's vengeance —of whether or not the chalice is poisoned.
The court before which the trial of Japan's war leaders dragged on for 2½ dreary years in Tokyo's somber old War Ministry building lacked even Nürnberg's dignity. Eleven judges had been picked by U.S. General MacArthur from names submitted by eleven nations; there was bickering throughout the trial. At the final verdict (TIME, Nov. 22), the court's prestige was further muddied by U.S. Prosecutor Joseph Keenan's remark that Mamoru Shigemitsu (for whom he had asked the death sentence) should really have been acquitted. Presiding Justice Sir William Webb of Australia (after condemning seven of the defendants to death) said that he did not believe in capital punishment.
Back in his old job on the U.S. Supreme Court in Washington, ex-Prosecutor Jackson could scarcely fail to see that such a trial would not "commend itself to posterity." Last week, in response to an appeal by some of the convicted Japanese, Jackson broke a 4-10-4 deadlock among his fellow justices and voted that the Supreme Court of the U.S. hear argument on whether to review the legality of the Tokyo tribunal. Jackson's opinion argued on both sides of the 440-4 deadlock.'Tor this court now to call up these cases for judicial review under exclusively American law," he warned, "can only be regarded as a warning to our associates in the trials that no commitment of the President or of the military authorities . . . has,finality [without] the approval of this court." On the other hand, he added, "our allies are more likely to understand and to forgive any assertion of excess jurisdiction . . . than our enemies would be to understand or condone any excess of scruple . . ."*
"A dangerous precedent," warned Chinese Justice Mei Ju-ao. Even some Japanese were cautious in praise of the decision. "We are keenly alive to the honor of a supreme court of a democracy which does not rest content unless every doubtful point is eliminated," editorialized Tokyo's Asahi Shimbun, "but what concerns us most is the issue of how to safeguard the world against war crimes."