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1951 Wash. U. L. Q. 329 (1951)
Nuremberg and Group Prosecution

handle is hein.journals/walq1951 and id is 343 raw text is: NUREMBERG AND GROUP PROSECUTION* RICHARD ARENSt INTRODUCTION The trial of the Nazi war criminals at Nuremberg for crimes against peace, war crimes and crimes against humanity involved not only the indictment of individual defendants but also the indictment of the major Nazi organizations.1 An aspect almost completely ignored in the welter of allega- gations concerning the ex post facto basis of the Nuremberg prosecutions2 is that concerning the infliction of collective or group sanctions through adjudication of group criminality. The question touching on the use of such sanctions for the maintenance of public order has become particularly acute in recent years in democratic society faced with the threat of global violence. An ominous resort to group or collective deprivations was highlighted in the Western world during World War II by deportation of West Coast Japanese-Americans to relocation centers in the name of security? A subsequent resort to the infliction of such deprivations has become apparent in the * This is the second of two studies on war crimes prosecutions prepared for the Quarterly by Professor Arens. t Assistant Professor of Law, University of Buffalo. 1. The Nazi organizations indicted were Die Reichsregierung (Reich Cabinet); Das Korps Der Politisechen Leiter Der Nationalsozialistischen Deutschen Arbeiterpartei (Leadership Corps of the Nazi Party); Die Schutzstaffeln Der Nationalsozialistischen Deutschen Arbeiterpartei (Commonly known as the SS) and including the Sicherheitsdienst (Com- monly known as the SD); Die Geheime Staatspolizei (Secret State Police, commonly known as the Gestapo); Die Sturmabteilungen Der N.S.D.A.P. (commonly known as the SA) and the General Staff and High Command of the German Armed Forces. See 1 NAZI CONSPIRACY AND AGGRESSION iii. 2. See Ireland, Ex Post Facto From Rome to Tokyo, 21 ToMPLE L. Q. 27 (1947); review of Glueck, The Nuremberg Trial and Aggressive War, 14 UNIv. CH. L. REv. 319 (1947); cf. Frank, War Crimes, Punishment For Today-Precedent For Tomorrow, Collier's, Oct. 13, 1945, p. 11. 3. Military orders embracing sweeping restrictions upon all West Coast residents of Japanese ancestry were sustained by the Supreme Court against individuals whose loyalty was unquestioned. In Hirabayashi v. United States, 320 U.S. 81 (1943), the Supreme Court upheld the con- stitutionality of curfew orders; in Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court upheld outright exclusion from the West Coast. See Dembitz, Racial Discrimination and the Military Judgment, 45 COL. L. REv. 175 (1945) ; Rostow, The Japanese American Cases-A Disaster, 54 YALE L. J. 489 (1945).

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