REMARKS OF HENRY T. KING, JR.
Chautauqua Institution
Chautauqua, New York
June 14, 2003
Winston Churchill is said to have lamented during World War I, “What would happen, I wonder, if the armies suddenly went out on strike and said some other method must be found of settling the dispute.”
It was a similar suggestion what was posed to me as a young boy. Growing up in Connecticut, I profited from Sunday night dinner sessions at which my father discussed with us the major issues of the day. One of these discussions in the mid 1930s dealt with the question of how do we stop wars? Father raised the question then and asked if we had any thoughts on the answer. A long science ensued, which was unusual because we were a voluble family. Finally, Father supplied his own answer, which ran as follows: “The people don’t want wars. It is their leaders who start them. To stop wars you have to punish the leaders.”
I have thought about that question both then and afterwards. I had heard a great deal from Father and others about the horrors of World War I. I hoped, as the posters put it, that “They (the heroes of World War I) shall not have died in vain.” Still Father’s question was intriguing and I wondered whether his answer was the right one. I knew that other approaches had not worked.
The question was one that stayed with me and ironically enough became one of the ruling passions of my life. So much so that by early 1946, I had become one of the U.S. prosecutors at Nuremberg.
As you are all undoubtedly aware, the interim had seen the coming and going of Adolf Hitler. Hitler had convinced the German people that their destiny and security lay with expanded international and domestic German sovereignty. “Lebensraum” or living space was the order of the day in Hitler’s Germany as he led the country into World War II with the attack on Poland and subsequent aggressions culminating in the attack on Russia. Hitler’s invasion of Russia reached its zenith in December 1941 at the outskirts of Moscow where his armies were stalemated. Thereafter and particularly following the German surrender at Stalingrad in February 1943, it was pretty much all downhill for Hitler’s legions culminating in the near obliteration of Germany by the Allies. In the ruins of shattered Germany, the German people realized that their security was not to be identified with expanded sovereignty and domination.
After the surrender of the German armies, the question then to be faced by the Allies was what to do with the German leaders who had participated with Hitler in his attempts to expand German control and sovereignty over the entire European continent? Most of Europe lay devastated because of Hitler’s aggression. This destruction had been carried out in the Name of the German state. Some of the acts committed were condoned by German law but were clearly contrary to International Law. Could that higher law be used to bring the Nazi leaders to justice? Moreover, could that higher law be expanded in order to deter such conduct in the future; particularly when advances in technology ensured that another conflict could threaten the very existence of civilization?
Albert Einstein once said, “The significant problems that we face cannot be solved by the same level of thinking that elevates them.” For mankind to break the age-old saga of war, it was time for innovative modes of thinking. Nuremberg – and more significantly Robert Jackson – presented a revolutionary approach not only for justly punishing the Nazi leaders but also prevent such destruction in the future.
This approach targeted the concept of sovereignty. Nuremberg established that international peace and prosperity is possible only where there exists a system of limited sovereigns. Specifically, the sovereign must be limited in its interactions with other sovereign states. Moreover, the sovereign must be limited from committing terrible crimes against citizens of different states and against its own citizenry. To understand how Nuremberg created a system of limited sovereigns, one must understand the state of the world in the pre-Nuremberg eras.
For all of history, humanity had succumbed to the will and whims of the sovereign. Whether cloaked in the title of emperor, king, queen, czar, or nobleman, individual leaders directed their citizenry – and all too frequently their slaves and serfs – to wage aggression on the neighboring peoples. For many centuries, countless generations believed their sovereign to be the incarnation of the divine; therefore strict obedience was required under pain of death and the sovereign could not be held to account for treachery. Over time, this concept of the divine sovereign evolved into a more secular leader. For instance, Hobbes explained, loyalty to the sovereign not in religious terms but in terms of the laws of nature. According to his leviathan, man gave loyalty to one sovereign out of a need for protection from evil and dangerous men. Locke and later enlightenment thinkers turned Hobbes on his head, opining that the sovereign was not supreme solely as a result of nature; rather, freemen had entered into a social contract with the sovereign, thereby giving rescindable loyalty to the sovereign. These enlightened views led to the concept of limited government represented in the documents creating the United States of America (The Declaration of Independence, the U.S. Constitution and the Bill of Rights), as well as the revolutionary movements throughout France and the whole of Europe.
Nevertheless, while the world began to recognize the rights of freemen against their government, affairs between sovereign states continued in the perennial game of wars and aggression. The peace of Westphalia of 1648 ended the wars of religion between the protestant and catholic states and gave rise to a recognize era of nation state dominance. The world filled with armed conflicts between national sovereigns that brought about death and destruction. It was a world in which International Law, such as it was, imposed no effective restraints on nation states and their leaders in starting and carrying out aggressive wars. It was a world in which individuals had no standing under International Law to charge nation states with violations of their rights as human beings. It was a world in which individuals had no effective obligations under International Law as heads or leaders of nation states. Individuals in the pre-Nuremberg world had no obligations to conduct themselves in such a way as not to injure the citizens of other nations. In short it was a world in which international anarchy was the order of the day.
Toward the end of the 19th century, world leaders recognized the confluence between increased technology and the primal urge to create war. Consequently, they met and enacted several conventions (i.e., The Hague Conventions of 1899 and 1907) that governed the tactics used in war. Nevertheless, little was done to prevent war and Bismarck’s Prophesy that “If war breaks out in Europe, it will probably be over some damn thing in the Balkans” came to pass. The result was the “war to end all wars” and the technological horrors of that war. However, “tremendous victories make bad peaces” and notwithstanding Wilson’s ill-fated League of Nations, the rise of fascism spread throughout the European continent following World War I. With the rise of Hitler died the hope for “a new World order.”
Nuremberg sought a break from this game of war, more destructive war, and the inevitable destruction of civilization. The manner to achieve this goal was that proposed by my father (i.e., to punish the leaders who started wars). It was, however, Robert Jackson who put the concept of limited sovereignty into action.
To appreciate the importance of Jackson’s mission I think an excerpt from his first progress report of June 6, 1945, to President Truman is pertinent. In this progress report he wrote: “We are put under heavy responsibility to see that our behavior during this unsettled period will direct the world’s thought towards a firmer enforcement of the laws of international conduct so as to make war less attractive to those who have governments and the destinies of peoples in their power. Jackson’s plan, which was agreed to after very tough negotiations with the UK, France and the U.S.S.R., was to identify three types of crimes for which the Nazis would be tried. These were: (1) crimes against peace, i.e., the planning, preparation, initiation and waging of wars of aggression; (2) war crimes – crimes in violation of the laws or customs of war; and (3) crimes against humanity, for example, murder and ill treatment of civilians for racial, religious or political reasons in connection with any other crime within the tribunal’s jurisdiction whether or not in violation of the domestic law of the country where perpetrated. A fourth crime was added – namely, participation in a common plan or conspiracy to commit any of the first three crimes. The crimes were set forth in the so-called London Charter of August 8, 1945, which also provided that the fact that actions were carried out as heads of state or responsible officials was no defense; nor was there to be recognized the defense of superior orders of a government or of a superior.
It should be noted that the German armies surrendered unconditionally to the Allies on May 8, 1945. There was no sovereign German government with which to deal in the surrender arrangements. Since the surrender was unconditional, the Allies could set its terms and all the rules under which they would govern Germany at will. This meant that they were able to dictate the terms under which the Nazi leaders would be tried, including the provision that the official positions of defendants as head of state or holders of high government office were not to free them from responsibility or to mitigate their punishment; nor was the defense of orders from an official or superior (i.e., Adolf Hitler) to be recognized, although under certain circumstances it might be considered in mitigation of punishment. This meant that the defendants could not hide behind the cloak of German sovereignty in justifying their crimes.
A word about the Nuremberg Court. The International Military Tribunal was not a military court-martial and it was certainly no ordinary court. It was a high level tribunal with jurists of great distinction. It covered crimes that were massive and had no particular location. The International Military Tribunal was, among other things, concerned with the International Laws of war and not the laws of any particular nation. Violations of these laws are war crimes. The International Military Tribunal’s activity replaced individual trials in individual countries, which would have been very fragmented. Indeed, it was a remarkable collective effort by the nations involved.
Justice Robert Jackson’s opening statement for the United States of America on November 21, 1945, gives us a sense of the importance of what was transpiring at Nuremberg when he said: “The privilege of opening the first trial in history for crimes against the peace of this world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated. That four great nations flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.”
The primary charge at Nuremberg was preparing, initiating, and waging wars of aggression. This dealt with wars in violation of Germany’s treaty obligations with other countries. And the Nuremberg court landed hard on those who were the object of this charge. In its holding, the Tribunal held implicitly that the exercise of Germany’s sovereignty did not support the wanton destruction by Germany of other states through wars of aggression, particularly where Germany’s treaty obligations said otherwise. It held that those who schemed to extend Germany’s sovereignty beyond the limits of International Law were guilty of major international crimes and that these crimes, together with crimes committed in the course of Germany’s aggressions warranted the supreme penalty – death (by hanging).
And all the Nuremberg defendants found they were to be judged – not by the law of the sovereign state of Germany, but by a higher law – International Law – whose principles were superior to Hitler’s German law. They found that they could not hide behind the curtain of German sovereignty in attempting to excuse their crimes and that the more enduring principles of International Law were to determine their fate. In other words, they found that they were to be judged as individuals and that they would be punished as individuals for what they did in violation of International Law. The cloak of German sovereignty could not protect them from this responsibility.
In sum, while the Nuremberg law did not outlaw the right of sovereign nations to declare and carry out defensive wars, it did hold illegal and condemn aggressive wars, and it held that the Nazi wars of aggression were beyond the bounds of International Law. Nuremberg further held that those Nazi officials who during World War II carried out Hitler’s orders calling for violations of the laws and customs of war were guilty of war crimes and crimes against humanity. It further found that conformance with the municipal law of Nazi Germany was no justification for their actions. So the core of the holding at Nuremberg was that the sovereign rights of a nation state (i.e., Germany) no longer included the initiation, planning and waging of wars of aggression. In addition, the Nuremberg holding states that the responsible officials of a state that did so were punishable under International Law. Nuremberg further held that the local municipal law of the sovereign state of Germany provided no cover for individuals who, in the course of a war of aggression, violated international rules governing the conduct of warfare. In sum, Nuremberg held that where Hitler’s orders violated International Law, those who carried them out were responsible and punishable under International Law. Conceptually, this indeed meant a severe, but very realistic limitation on the sovereignty of the German state.
The first of the four Nuremberg’s crimes – the crime against peace, or aggressive war – represented a radical departure from the past. It was in this crime that the international community finally broke from the Westphalia concept of the supreme state and condemned aggressive war. It must be noted that it was this charge that brought the greatest criticism from the legal community concerning the retroactive application. Simply, as we have discussed, prior to Nuremberg, aggressive war was not a crime. One of Nuremberg’s earliest and most vociferous critics, Judge Charles Wyzanski, Jr., published an article in The Atlantic Monthly April 1946 issue condemning the ex post facto nature of the crime against peace charge. Nearly a year later, Judge Wyzanski reversed himself stating that while it may be an ex post facto law, the crime of aggressive war was necessary to prevent the perpetual cycle of war that had encumbered international relations for centuries.
Similarly, the international community initially balked at holding individuals accountable for the crimes of the state. However, as a matter of sheer logic, if tyrannical dictators espoused Louis XIV’s “l’etat c’est moi” and deemed themselves the state, why should those who control the levers of power in a dictatorship not be responsible for their actions? Nuremberg eradicated the centuries old concept of an infallible and untouchable sovereign and placed the responsibility of the state on those who controlled the state. This is the ultimate lesson of Nuremberg, which was passed to me many years before by my father – that those who act as the state are in turn responsible for the state.
The United Nations is the living embodiment of Nuremberg’s legacy for the elimination of aggressive war through limited sovereignty. Article 1 of the Charter of the United Nations provides that the U.N.’s purpose is “[t}o maintain peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of the peace…” The Charter thus captures Nuremberg’s notion of limited sovereignty – first, it states that nations may take collective measures to ensure security; and second, it expressly proscribes acts of aggression. Similarly, Article 2 mandates that member-states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”
Nevertheless, as in the Nuremberg Charter, the U.N. recognizes limited sovereignty – not the complete destruction of the sovereign state. For instance, the Charter does not authorize the U.N. to “intervene in matters which are essentially within the domestic jurisdiction of any state” (with the exception of human rights violations as witnessed in the Yugoslavia and the former Rwanda.) Moreover, Article 51 recognizes an “inherent right to individual and collective self-defense if armed attack occurs against a member” provided that “the right of self-defense shall be immediately reported to the Security Council [and] to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” It is this notion of limited sovereignty that Jackson believed would prevent the horrors of the pre-Nuremberg era and to which the international community vigorously subscribed in their adoption of the Charter.
Nevertheless, conflicts have occurred since the creation of the U.N. – most notably during the Cold War. It must be acknowledged, however, that such acts were not those of naked aggression – they were couched in terms of self-defense. For instance, the U.S. justified the Vietnam conflict throughout the Gulf of Tonkin attack and the U.S.S.R. invaded Hungary under the guise of the Brezhnev doctrine. While the concept of self-defense did not east the suffering of the millions affected by these conflicts, it must be acknowledged that naked aggression has been restrained since Nuremberg and the creation of the U.N. Simply, state must now account to the international community for conflicts created by their conduct.
Fortunately, the end of the Cold War witnessed a renaissance in the Nuremberg spirit. When Iraq invaded the sovereignty of Kuwait in 1990-91 using a Hitler-esque claim of reuniting Iraq with its ancestral state of Kuwait, the international community engaged in a cooperative effort to expel Saddam Hussein. This communal spirit likewise led to the humanitarian interventions in Yugoslavia and Rwanda.
However, the events of recent months cause great concern for proponents of limited sovereignty. The war of terrorism knows no boundaries. The concepts of self-defense now extends to threats that are neither imminent nor, in many circumstances, likely. Preemption is now the stated doctrine of the current administration and has already led to one conflict that has had a negative impact on relations with other nations normally allied with the U.S.
History ultimately will judge the impact of recent events. From the perspective of limited sovereignty, it appears the big kid on the block is concerned less with restraining itself, that with working in a collaborative effort to ride the world of threats. A return to the pre-Nuremberg era assuredly will make the world once again an unstable, aggressive, and with modern weaponry – self-destructive world.
I implore all of you to recommit this country to the vision of Nuremberg and Justice Jackson. As Nuremberg demonstrated, the only way to achieve peace and prosperity is through a world of limited sovereigns.
Transcribed by Charlene J. Peterson, 2003