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楼主: 郭国汀

郭国汀:什么是我们为之奋斗的正义?

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 楼主| 发表于 11/21/2016 15:32:56 | 显示全部楼层
本帖最后由 郭国汀 于 1/18/2017 19:18 编辑

What is the justice? frankly speaking I myself until now do not totally understand its meaning in all area, despite I have become a fighter of justice since 1984. In essence, the Justice is fairness. The problem is that everyone standing on their own status and interest to dealing with disputes, thus, it seems there is no common standard to judge what is the Justice. Although I read a number of works on Justice, and try to write essays on Justice, I still feel quite confused sometimes.

I am one of the fighters for the freedom and justice of China, who have devoted his life and career for the cause. Even me still have some confuse about what is the Justice, how can one expect that commoner understand what is the JUSTICE?
 楼主| 发表于 2/8/2018 19:20:19 | 显示全部楼层
Nuremberg tribunal was primarily attributable to
the Americans.[1] The problematic implications of the
tribunal's legitimacy and jurisdiction were discussed at length
by the architects of the tribunal, who included Francis Biddle
(the U.S. Attorney General, who was later one of the judges at
the tribunal) and Robert Jackson (the U.S. Supreme Court
justice who was Chief Counsel for the U.S. prosecution team).
There were in fact lengthy exchanges over the design of the
tribunal, which involved the Departments of War, State, Trea-
sury, Justice, Navy, Office of Strategic Services and the White
House.[2] Yet what was unquestioned was the fundamental
commitment to achieve a political aim by means of a judicial
process; accompanied by indifference to or denial of the funda-
mental incompatibility of the political and judicial.[3]

[1] As one scholar writes:
    [The Nuremberg trial system was created almost exclusively in Wash-
    ington by a group of American government officials. The system was
    developed, altered, and redrafted during the last ten months of the Euro-
    pean war and was then presented to the British, Soviet, and French gov-
    ernments for comment and concurrence at a four power conference held
    in June-July 1945. America's allies modified and shifted features in the
    United States plan, but its basic elements remained intact and were
    embodied in the London Charter and the indictments that became the
    legal ground rules for the main Nuremberg proceedings and for a series
    of subsequent trials of Nazi and Japanese leaders.
  BRADLEY F. SMITH, THE ROAD TO NUREMBERG 4-5 (1981).

[2] TAYLOR, supra note 20, at 33. Note, however, that discussion of punish-
ment for Axis and Japanese war crimes had in fact been going on for some time
by the governments in exile and the UN War Crimes Commission (UNWCO). In
January 1942, the governments-in-exile of Belgium, Czechoslovakia, France, Greece,
Holland, Luxembourg, Norway, Poland and Yugoslavia met in London, where they
drafted the St. James Declaration, calling for the "punishment, through the chan-
nel of organized justice, of those guilty of or responsible for these crimes . ..."
Id. at 25. In October 1943, the UNWCC was formed to document war crimes. Its
members were Australia, Belgium, Britain, Canada, China, Czechoslovakia, France,
Greece, Holland, India, Luxembourg, New Zealand, Poland, South Africa, the Unit-
ed States and Yugoslavia. In the end, however, the individual countries held trials
for war crimes committed specifically in their territory; and the United States
(rather than the UNWCC) was the dominant force in the design and operation of
the Nuremberg tribunal for the prosecution of war crimes which were not limited
to a specific country. Id. See also Jonathan A. Bush, Nuremberg: The Modern Law
of War and its Limitations, 93 COLUM. L. REv. 2022, 2057 (reviewing TELFORD
TAYLOR, NuREMBERG: THE MODERN LAW OF WAR AND ITs LIMITATIONS (1992)).

[3] In a memorandum of June 1945, Telford Taylor, associate counsel for the
U.S. prosecution team, wrote that "the thing we want to accomplish is not a legal
thing but a political thing." Quoting the memorandum, he wrote later in his mem-
oirs that the "ex post facto problem"-that the tribunal was prosecuting individu-
als for laws which did not exist at the time of their acts-was "not a bothersome
question 'if we keep in mind that this is a political decision to declare and apply
a principle of international law." TAYLOR, supra note 20, at 50, 51.



 楼主| 发表于 2/8/2018 23:18:13 | 显示全部楼层
The fire-bombing of Dresden, the use of
atomic weapons in Hiroshima and Nagasaki and the violation
of rules of submarine warfare were all acts committed by the
Allies which would have been well-suited for treatment as war
crimes, if the tribunal had been concerned with war crimes as
          such, rather than the war crimes of the European Axis.
The fire-bombing of
Dresden-and even the atomic bombing of Hiroshima and
Nagasaki-would still have paled alongside the German death
          camps.

where the legislator, prosecutor and
judge were all the same party; the legislation was explicitly
created for the purpose of punishing certain individuals; the
standards for evidence and procedure left to the discretion of
the tribunal; and the tribunal's jurisdiction was created and
conferred by the plaintiff, who then prohibited the defense
from raising the issue of jurisdiction, before the tribunal itself
or elsewhere.


Justice Pal of India, a country
which had suffered very little at the hands of Japan, acquitted
all defendants, partly on the grounds that the tribunal was a
political rather than judicial entity, which had no right or
jurisdiction to try the defendants.[1]


[1] In his dissent, Pal wrote:
     Whatever view of the legality or otherwise of a war may be taken, victo-
     ry does not invest the victor with unlimited and undefined power now.
     International laws of war define and regulate the rights and duties of
     the victor over the individuals of the vanquished nationality. In my judg-
     ment, therefore, it is beyond the competence of any victor nation to go
     beyond the rules of international law as they exist, give new definitions
     of crimes, and then punish the prisoners for having committed offenses
     according to this new definition.
Remarks Concerning the Opinion of the Member for India (Pal), in 21 THE TOKYO
WAR CRIMES TRIAL 32 (1981). See also MINEAR, supra note 231, at 63-64.







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