Classic Podium: The trial of the vanquished

From a speech by Senator Robert Taft, at Kenyon College, condemning the war crimes trials of Axis leaders, as being against the principles of Anglo-American law

(5 October 1946)

I DESIRE today to speak particularly of equal justice, because it is an essential of individual liberty. Unless there is law, and unless there is an impartial tribunal to administer that law, no man can be really free. Without them only force can determine controversy, as in the international field today, and those who have not sufficient force cannot remain free. Without law and an appeal to a just and independent court to interpret that law, every man must be subject to the arbitrary discretion of his ruler or of some subordinate government official.

The Declaration of Independence, the Constitution of the United States and every pronouncement of the founders of the government stated the same principle in one form or another. In England the progress towards a definite law, administered by efficient and impartial courts or tribunals, was slow and uncertain. The common law developed slowly and became clear and definite only after many centuries. For a long time the courts were anything but impartial, and the actual application of the law was often unfair and unjust. But reverence for the principle must have existed, or it would not have been transported so early to the shores of America to become the dominant theory of government in the colonies.

I believe that most Americans view with discomfort the war trials which have just been concluded in Germany and are proceeding in Japan. They violate that fundamental principle of American law that a man cannot be tried under an ex post facto statute.

The trial of the vanquished by the victors cannot be impartial, no matter how it is hedged about with the forms of justice. I question whether the hanging of those who, however despicable, were the leaders of the German people will ever discourage the making of aggressive war, for no one makes aggressive war unless he expects to win. About this whole judgment there is the spirit of vengeance, and vengeance is seldom justice. The hanging of the 11 men convicted will be a blot on the American record which we shall long regret.

In these trials we have accepted the Russian idea of the purpose of trials - government policy and not justice - with little relation to Anglo-Saxon heritage. By clothing policy in the forms of legal procedure, we may discredit the whole idea of justice in Europe for years to come.

In the last analysis, even at the end of a frightful war, we should view the future with more hope if even our enemies believed that we had treated them justly in our English-speaking concept of law, in the provision of relief and in the final disposal of territory. I pray that we do not repeat this procedure in Japan, where the justification on grounds of vengeance is much less than in Germany.

Our whole attitude in the world, for a year after VE Day, including the use of the atomic bomb at Hiroshima and Nagasaki, seems to me a departure from the principles of fair and equal treatment which have made America respected throughout the world before this Second World War. Today we are cordially hated in many countries. I am delighted that Secretary of State James FI Byrnes and Senator Arthur HI Vandenburg have reversed our policy in many of the respects I have referred to. But, abroad as at home, we have a long way to go to restore again to the American people our full heritage of an ingrained belief in fairness, impartiality, and justice.

Peace in the world can come only if a law is agreed to relating to international relations, if there is a tribunal which can interpret that law and decide disputes between nations, and if the nations are willing to submit their disputes to impartial decision regardless of the outcome.

There can be no peace until the public opinion of the world accepts, as a matter of course, the decisions of an international tribunal.

War has always set back temporarily the ideals of the world. This because of the tremendous scope of the war, the increased barbarism of its methods and the general prevalence of the doctrine of force and expediency even before the war, the effect today is even worse and the duration of the post-war period of disillusionment may be longer.

As I see it, the English-speaking peoples have one great responsibility. That is to restore to the minds of men a devotion to equal justice under law.