MARGINAL COMMENT
By HAROLD NICOLSON
HAVING just returned from Nuremberg, I am more convinced than ever that if one wishes to grasp the reality of events, it is essential to understand, not only the factors which compose them, but the atmosphere in which they occur. Documents can be filed, statistics tabulated, and speeches taken down in shorthand ; but atmosphere, being compounded of impalpables, can neither be photographed nor recorded. I am conscious that my own precon- ceptions of this stupendous trial were incorrect, in that, although I had rightly foreseen its outward appearance, I had formed a false idea of the atmosphere in which it is conducted. From films and photographs I had derived a perfectly accurate picture of what the trial looked like ; but I had derived no impression whatsoever of what it felt like. I knew in advance what sort of sounds I should hear ; I had not foreseen the silences. I had expected drama, solem- nity and fatefulness ; I had not realised that its most impressive element is the element of calm. I knew that I should find it strange and terrible to see men (whose very names but a few months past were symbols of fear and power) hunched together upon two wooden benches in drab disarray. I knew that I should derive no satisfaction from this spectacle, but only a disgusted uneasiness. I imagined that I might be swayed by natural human reactions, that my sympathies
• would swing unwillingly from the prosecutors to the defendants, that the .enormous disproportion between strength and helplessness might suggest to me some Roman triumph, that I might feel that the principles and the apparatus of justice were being twisted to vin- dictive ends. Yet such is the atmosphere of the Court at Nuremberg that I experienced none of these foreseen emotions. I felt at once that this trial is no punitive arraignment of a few individual captives ; I recognised it as the calm assessment and affirmation of profound human values.
* * * * It is in the light, in the burning light, of that conviction that I can now confront the criticisms which are made. Some of these criticisms I had from the outset discarded ; by others I have hitherto been much disturbed. There are those who contend that to hold any trial in such circumstances is to indulge in some hypocritical farce, and that it were better done to obtain evidence of identification and then to proceed to summary punishment. Apart from the fact that all the defendants cannot be equally guilty and that a careful investigation of comparative innocence would in any case have had to be conducted, this " shoot at sight " criticism ignores many im- portant considerations. The Allies do not desire to imitate Nazi methods or to murder people without defence. They have no wish to provide future German generations with a long list of national martyrs ; they wish to render manifest the character of the men by whom the German people have for more than thirteen years been misled. One of the most important functions, moreover, of the International Military Tribunal is that of a fact-finding organisation ; they will establish, by the method of question and answer (as no blue-book could ever establish), the iniquities of the Nazi philosophy,
and the actual magnitude of the crimes which have been committed. Their role is not judicial only, it is also historical. They are estab- lishing new and valuable precedents in International Law : but they are doing more than that ; they are compiling a patient factual indict- ment of the greatest evil which this world has ever known. This is in itself a justification.
* * * * A more reasonable criticism is that it must always be wrong for the victors to try the vanquished. One might answer this on purely practical lines by pointing out that the four Powers are today the sovereign authority in Germany, and that in any case the precedent of the Leipzig trials after the last war is not one which could prudently be adopted. Such answers are not wholly convincing. However much one may question the principle, one must admit that its validity depends upon the manner in which it is applied. Is the trial a fair trial, in the sense that no innocent man will be convicted and no guilty man escape? No reasonable person can attend the Nuremberg trial and not be convinced that these essential conditions
are being observed. One is in fact astonished by the latitude which is accorded to the defence ; nor is it conceivable that men of the calibre of Lord Justice Lawrence or Sir Norman Birkett, not to mention the other eminent judges, would in any circumstances allow their judicial integrity to be deflected. That the trial is a fair trial and that the ultimate verdicts will be fair verdicts are two essential facts about which I have now no doubts whatsoever. Yet even those who admit these axioms are inclined to regret that the principles and procedure of English justice are not in every instance being observed. It may well be that certain passages in the Indictment, (such as the classification of organisations as " criminal " organisa- tions and the somewhat free use of the word " conspiracy ") are questionable passages. But it should be realised that the trial is not being conducted by an English Court of Justice but by an Inter- national Military Tribunal ; and that the rules of evidence which have rightly been framed to protect an English jury against mis- conceptions are not necessarily applicable to a bench composed of men who have been accustomed to weighing the " probative value " of evidence all their lives. One hesitates in such stark and terrible circumstances to use self-righteous or complacent terms. The majesty of power, the hard facts of victory, are admittedly apparent ; and those who rejoice in seeing the mighty humbled have full cause for satisfaction. But in the courtroom at Nuremberg something more important is happening than the trial of a few captured prisoners. The inhuman is being confronted with the humane, ruthlessness with equity, lawlessness with patient justice, and barbarism with civilisation.
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I do not for one moment suppose that these arguments will con- vince those many admirable people who feel the same uneasiness as I did myself. All I can assure them is that, having visited Nurem- berg, my own uneasiness is completely dispelled. But there is one form of criticism which is a thoughtless form and which causes me distress ; it is the accusation that the trial is lasting too long. I can- not believe that those who make this criticism can have considered either the historical significance of the trial or the purposes for which it is being held. It may be that the proceedings will last well into the autumn, yet if the trial is to be a fair trial then each individual defendant must be given an equality of chance. It would be iniquitous indeed if in response to ill-considered impatience those defendants who come last on the list were given less time to state their cases than was accorded to their predecessors. These men are being tried on very serious charges ; these charges entail minute investigation, examination and cross,-examination ; if the trial were to be unduly " speeded up " during the next few months then assuredly a denial of justice might be perpetrated. And who among us, ten years from now, will recollect whether the Nuremberg trial lasted six months or twelve? This ignorant and unjust impatience appears to me wholly out of harmony with the high seriousness, the anxious sense of responsibility, with which the trial is being conducted by the members of the Tribunal. It is unfair to the defendants ; it is also unfair to those hard-worked and conscientious men who feel it to be their mission to render this investigation a permanent example of international justice.
* * * * There was one incident which occurred during the trial which I did not witness myself, but which was recounted to me ; it illustrate: better than any other the atmosphere in which the proceedings are being conducted. At one stage a film was shown portraying the trial in a Nazi court of a young man accused of conspiring against the Fiihrer. The Nazi judge shook his clenched fist at the accused and shouted imprecations. "You are a traitor," he yelled, "you are a beast in human form." Such was the clamour of his rage, the dirt of his objurgations, that people were obliged to remove their head- phones. The film ceased and there was a sudden hush. " Dr. Dix," said Lord Lawrence in his gentle voice, " pray proceed with your examination." The contrast was so formidable that even the de- fendants moved uneasily 'upon their bench.
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