By Professor Henry T. King, Jr.
Case Western University
October 12,2002
It is a great pleasure to be here to discuss the evolution
of global justice and Nuremberg’s place within this evolution. It is
my belief that Nuremberg is the genesis of global justice. In order to appreciate
Nuremberg’s great contribution, one must understand the nature of international
law as it was during the pre-Nuremberg era.
But first I want to say a few words about Robert Jackson, the architect of
Nuremberg. He was the man who started it all – who conceived and implemented
Nuremberg. There would, in fact, never have been a Nuremberg without Robert
Jackson. Jackson created Nuremberg with no precedent to follow. There were
no lawyers with experience in Nuremberg-type crimes. He had to deal with lawyers
from five different legal systems, some skilled in the common law system and
others in Roman law. He combined this diversity into a legal framework, which
accomplished his objective of a fair trial.
Jackson’s words at Nuremberg, especially his opening and closing statements,
are unforgettable. His eloquence deeply inspired all of us who worked with
him at Nuremberg and will continue to be a beacon for posterity.
In bringing about Nuremberg, Jackson was the target of the slings and arrows
of his countrymen. I think this bothered him deeply but it did not stop him.
Other factors caused Jackson to die an unhappy man, be he remained proud of
his achievements at Nuremberg. He described Nuremberg as the most important
enduring and constructive work of his life.
Jackson’s primary thrust at Nuremberg was to stop wars. This meant that
his focus was on the aggressive war count. This count was not included in
the U.N. Security Council resolution authorizing the establishment of war
crimes tribunals to try individuals for crimes committed in the former Yugoslavia
and Rwanda. But at the insistence of three former Nuremberg prosecutors, including
myself, aggressive war was included in the crimes set forth in the Roman Statute
for an International Criminal Court. Ironically, we asked the German delegation
at Rome to push to secure this inclusion. This provision is not currently
effective but it will be, we believe, in the future.
One night in late July 1946, I worked all night on Jackson’s closing
statement at Nuremberg. I thought my words, which dealt with the case against
the German general staff and high command, were very well put. But Jackson
never used them. He didn’t believe in “ghosts.” When he
spoke it was from the heart – his heart and his alone.
But Jackson, were he alive today, would be deeply shocked and saddened at
the current administration’s attempt to sabotage the creation of the
International Criminal Court which would institutionalize the Nuremberg principles.
Pre-Nuremberg concepts of national sovereignty emanated from the Peace of
Westphalia of 1648, which ended the wars of religion between the protestant
and catholic states. In the post-Westphalia era, nation states ruled supreme,
and the world was filled with armed conflicts between national sovereigns.
International law, such as it was, imposed no effective restraints on nation
states and their leaders in starting and carrying out aggressive wars. National
leaders were free to do as they pleased in their dealings with other states.
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. Nor
did individuals have any effective obligations under international law as
heads or leaders of nation states 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.
It was this state of affairs that led to two world wars. As World War II began
to wind down, however, the question arose as to what to do with the alleged
perpetrators of the worst conflagration in history. There were those who,
in keeping with the status quo, proposed summary execution of those alleged
to be responsible for this horror. They included distinguished statesmen such
as Winston Churchill, and U.S. Secretary of the Treasury Henry Magenta. Cordell
Hull, the U.S. Secretary of State, favored drumhead courts martial designed
primarily to convict the defendants. Chief Justice Stone of the U.S. Supreme
Court also favored summary action. Josef Stalin was reported by Winston Churchill
to favor summary executions but was willing to go through a judicial process
designed to convict the defendants. For their part, certain British officials
wanted to take the top Nazi criminals out and shoot them without warning and
announce to the world that they were dead.
But a dissenting voice was heard – that of U.S. Secretary of War Henry
L. Stimson who favored a trial – a fair trial. His voice was powerfully
joined by that of Supreme Court Justice Robert H. Jackson who on April 13,
1945, in an address before the American Society of International Law announced
that he favored a trial of the Nazis’ based on justice. Jackson said
that the U.S. should want nothing to do with any of the proceedings, which
were designed only to convict defendants. Jackson wanted convictions of defendants
based on solid evidence. If the evidence to convict was not there he favored
acquittal. According to Jackson the goal of the Nuremberg trials was that
the hand of vengeance be stayed through trials based on the principle of justice
– for all.
On May 2, 1945, President Truman charged Justice Jackson with leading the
U.S. team to prosecute the Nazi leadership. Jackson then transformed his earlier
statements into practice when he negotiated with the allies the London Charter
of August 8, 1945, which was the basis for the Nuremberg War Crimes trial.
The primary Nuremberg trial was governed by the London Charter. This tribunal
consisted of judges from the U.S., UK, France, and the U.S.S.R. The defendants
were leaders in different areas of German life. The subsequent proceedings
were governed by Allied Control Council Law #10 and were carried out by the
U.S. with only U.S. judges on the bench. The defendants were very important
but in some cases of lesser rank than those tried by the International Military
Tribunal.
The London Charter mandates several key points that serve as the basis of
international law as we know it today. For instance, in negotiating the London
Charter, Jackson insisted on a presumption of innocence while the U.S.S.R.
representatives endorsed a presumption of guilt. Jackson stuck to his convictions
on this issue and he prevailed. The result at Nuremberg was that three defendants
who otherwise might have been convicted were acquitted. This gave meaning
to the Nuremberg trial as a symbol of justice, which it might not otherwise
have had. It demonstrated that at the most momentous trial in history the
principles of fairness should and did prevail.
At Nuremberg Jackson further insisted that its defendants have counsel of
their own choosing. Thus a cadre of top German lawyers, including the leaders
of the German bar, were offered as defense counsel to the Nazi defendants.
I can say on the basis of personal experience that these German lawyers put
up a terrific defense for their clients. Few who were there will ever forget
the efforts of Alfred Kranzbuhler, counsel for Karl Doenitz, the Nazi U-boat
chieftain and Hitler’s anointed successor, or of Hermann Jahreiss, the
“grey eminence” of the German defense staff, and counsel for Alfred
Jodl, the Commander in Chief of the German armies on the western front. They
fought to the ultimate for their clients and Kransbuhler, indeed, was successful
in getting the sentence for Doenitz, a confirmed Nazi, limited to 10 years
in Spandau Prison.
In the evidentiary phase of the Nuremberg trials Jackson’s approach
offered fairness to the defendants. Jackson wanted the primary Nuremberg case
against the Nazis to be substantiated by their own documents, with less reliance
on the testimony of witnesses. This approach precipitated a critical dispute
with William J. Donovan, his presumed deputy, who wanted the case to be based
on greater use of witnesses. Jackson prevailed and Donovan went home. It was
Jackson’s view the Nuremberg would have greater historic credibility
if the Nuremberg cases were based on the defendants’ own documents.
Ultimately the defendants at Nuremberg convicted themselves through Jackson’s
approach. This approach also fortified the credibility and historic significance
of the trial. It also meant that where there was no documentary support for
a conviction, the defendant had to be acquitted – as in fact was the
case with three defendants. In its decision, the Nuremberg Court commented
that the case against the defendants rests largely on documents of their own
making.
The London Charter set forth three basic counts in addition to a conspiracy
or common plan count – namely crimes against peace (aggressive war),
- war crimes – crimes against the laws of war, and crimes against humanity
– murder and injury to civilians for racial, religious or political
reasons.
Crimes against peace – the crimes against peace count was based on the
Kellog-Briand Peace Act of 1928 which outlawed war as an instrument of national
policy and on Germany’s violation of the many treaties which committed
her to the peaceful resolution of disputes with neighboring states. It also
includes raw aggression regardless of treaty commitments. The International
Military Tribunal accepted this concept in its decision and found Goering
et al guilty of crimes against peace. But the Tribunal’s holding is
limited to the facts of the case at hand – the Nazi aggression. The
decision lacks sweep and contains little or not language dealing with a generic
concept of aggression. Moreover the Tribunal limited its judgment and findings
of guilt in the crimes against peace count to wars of aggression. The invasions
of Czechoslovakia and Austria were not found by the Tribunal to be crimes
against peace on the ground that they were acts of aggression and not wars
of aggression.
But Control Council Law #10 which governed the subsequent proceedings at Nuremberg
specifically included invasions in its definition of crimes against peace.
The Nuremberg holding on war crimes was quite comprehensive. But it is a large
area in scope and the primary Nuremberg trial and the subsequent proceedings
did not wholly clarify the rules on the taking of hostages and reprisals.
These gaps were corrected in the 1949 Geneva Conventions and as clarified
have been reflected in the army field manuals of the major powers.
According to the London Charter of August 8, 1945 and the holding of the International
Military Tribunal, the crimes against humanity count could not stand alone.
To be actionable, these offenses – murder, enslavement, etc., of civilians
for political, religious or racial reasons, had to be carried out “in
connection with or in execution of” another crime within the jurisdiction
of the tribunal. What this meant was that the pre-war persecution of the Jews
in Nazi Germany was not actionable because it was not connected with a war
crime or crime against peace. This gap was corrected in Control Council Law
#10 which removed the requirement that crimes against humanity had to be tied
to war crimes or crimes against peace. Thus Control Council Law #10 did encompass
crimes against the Jews in pre-war Nazi Germany. Crimes against humanity as
modified in Control Council Law #10 thereupon became the core of the genocide
convention.
The primary Nuremberg judgment had a profound effect on international legal
principles. First, superior orders were not held to be an acceptable defense
– even where the orders were given by the head of state. The ranking
military defendant at Nuremberg, Wilhelm Keitel, is a case in point. Keitel’s
defense was that he was ordered to do what he was charged with by Adolf Hitler,
the head of the German state. In finding Keitel guilty the Nuremberg court
ruled that Hitler’s orders afforded no defense for Keitel. Implicitly
a higher law superceding German law was applicable and Keitel’s guilt
was established under that higher law.
The other defense which the Nuremberg court disposed of was the “head
of state” defense. Under this approach national sovereignty could not
be used to exonerate leaders for their actions in violation of international
law. The court held the line on this one and judged the actions in question
vis a vis international law and not German domestic law.
Those defendants who were in compliance with German law but had violated international
law were found guilty at Nuremberg. Consequently, Nuremberg changed forever
the anarchic context in which the nations and peoples of the world related
to one another. Nuremberg held that national leaders are responsible for what
they do as heads of nation states – under international law. It held
that individuals have rights under international law, which are not dependant
on nation state recognition. Nuremberg held that there are enforceable international
norms governing the conduct of armed conflict and that individuals are answerable
for violating these norms.
Another vital contribution to international human rights is found in Jackson’s
endorsement of the principle of universal jurisdiction. As Jackson so movingly
stated in his opening statement on November 21, 1946, “the real complaining
party at your bar is civilization to pass these defendants a poison chalice
is to put it to our lips as well.”
The Nuremberg court (IMT) applied the concept of universal jurisdiction when
it said that the nations who were plaintiffs at Nuremberg were doing collectively
what each one of them could have done individually. In essence what the court
meant was that some crimes prosecuted at Nuremberg were so terrible (i.e.,
crimes against humanity) that they could have been dealt with by any court
taking jurisdiction because they were crimes against all humanity –
literally and collectively.
The court in the Eichmann case applied this concept in convicting Adolf Eichmann
of crimes against the Jews. At the time the crimes had been committed, Jews
had not legal effect in Israel because Israel was not then a nation state.
There had been no Israel law in effect which Eichmann could be charged with
violating. But, said the court, these were crimes so massive that they were
crimes against all humanity and Eichmann was given the death penalty. The
U.S. Court of Appeals in the Demyanuk case endorsed this principle as well,
and it is included in the restatement of the foreign relations law of the
United States. The concept is now firmly entrenched as witnessed during its
recent application in the trials of Chilean dictator Augusto Pinochet.
The inheritance of Nuremberg in Europe is reflected in the creation of the
European court of human rights and the convention on which it is based. Under
the convention an individual located in a member state who feels that his
individual rights as defined by the convention have been violated by his country
can bring a proceeding against his country. If the European court confirms
his rights, the country must abide by the court’s ruling or withdraw
from the convention.
Nuremberg was the fountainhead from which initiatives for global justice emanated.
The European Convention on Human Rights, the Genocide Convention, the Convention
Against Torture, the Universal Declaration of Human Rights and other similar
initiatives are all outgrowths of Nuremberg. Nuremberg articulated and enforced
the international ground rules governing the conduct of armed conflict as
it reflected in the army field manuals of the major nation states in today’s
world. These cover the treatment of civilians and prisoners of war during
wartime. They provide a working guide for soldiers engaged in armed conflict.
Moreover the Geneva Conventions of 1949 relating to the protection of victims
of war fill gaps in international military law which had been identified at
Nuremberg.
Nuremberg was the first postmortem analysis of the levers of power in a dictatorship.
It showed how power corrupts and revealed the need for a system of checks
and balances to avoid a recurrence of the power structure which had been the
hallmark of Nazi Germany. At Nuremberg, we witnessed the value of a free press
and an independent judiciary as restraints on national leaders. We learned
that aggressive wars are more likely when a single individual, answerable
to no one, decides the fate of his nation and other nations.
Nuremberg was for me and, I believe for the world, the most impressive moral
advance emanating from World War II. At Nuremberg we came to grips with the
problem that national sovereignty poses for mankind in our quest for a better
and more peaceful world. The fact is that unrestricted national sovereignty
means in real terms international anarchy. Nuremberg showed that there must
be some limitations on national sovereignty if we are to have a more secure
world. Aggression cannot be permitted if we are to have a secure world and
an assured peace.
Nuremberg showed us that we must penetrate the veil of national sovereignty
and punish individuals for violations of international law if we are to give
that law life and vitality.
The fact that individuals have international rights which are not dependent
on nation state recognition is another legacy of Nuremberg.
Albert Speer in his closing statement at Nuremberg reminded us that the march
of destructive technology has changed the context in which nations and individuals
must relate to one another. He said that a “new large scale war will
end with the destruction of human culture and civilization. Nothing can prevent
unconfined engineering and science from completing the work of destroying
human beings which it has begun in so dreadful a way in this war.” Speer
added that “therefore this trial (Nuremberg) must contribute towards
preventing such degenerate wars in the future, and towards establishing rules
whereby human beings ban live together.”
Together with the founding of the U.N., Nuremberg was the seminal legal event
in the 20th Century. It provided the blueprint for a better world –
a vision of the future which some day – I am confident will be realized.
Nuremberg was right and it was just. It was a revolutionary break with the
shackles of the past and it grew out of the conviction that there was a better
way. Its legacy is clear in the endorsement by the U.N. of the Nuremberg principles,
the development of a law of international human rights, the formation of The
Hague Tribunals addressing the crimes in Yugoslavia and Rwanda, and in the
specific instances of putting to the bar of justice alleged war criminals
such as Eichmann, Pinochet, and Milosevic.
The primary procedural difference between The Hague and Nuremberg tribunals
is The Hague requirement that the defendant be in custody to be tried. In
this connection it will be recalled that Martin Bormann was tried in absentia
rather than not at all and I gave testimony to such effect before the Senate
Foreign Relations Committee. He could have been given the opportunity to be
heard – even by satellite and to present his case. If he declined, that
was his choice. Who knows? Had we tried him, we might have avoided the current
appalling situation. There certainly was a great deal of evidence documenting
his crimes and the world should have had an opportunity to see and assess
it. I say emphatically – what did we gain by looking the other way and
turning our back on Saddam Hussein’s personal responsibility for his
crimes? The more we ratify what he did by inaction – the more likely
his type of behavior will be repeated – as it currently is.
In addition, the trials governing crimes in the former Yugoslavia and Rwanda
are ad hoc, meaning not by permanent institutions. The same was true of Nuremberg.
The world needs to institutionalize the principles of Nuremberg if it is to
be part of our permanent international legal landscape. The vehicle for doing
this is the International Criminal Court which encompasses the Nuremberg principles
dealing with individual accountability and international human rights, as
well as the crimes of genocide, war crimes and crimes against humanity. Most
law-abiding nations in today’s world support the International Criminal
Court so the legacy of Nuremberg is alive and well in much of the civilized
world today. But not so for the U.S. The current administration and some key
members of the legislative branch has turned their backs on Nuremberg and
vehemently oppose the establishment of the International Criminal Court. Remember
what Robert Jackson said in his opening statement as chief prosecutor at Nuremberg:
“to pass these defendants a poison chalice is to put it to our lips
as well.”
This was Jackson’s challenge and he issued it to the world, including
the United States. But now those speaking for the United States do not want
to accept his challenge, they don’t want to have the Nuremberg principles
extended to U.S. nationals. It is to this topic that I shall yield the stage
to Professor Scharf.
As a final note, Justice Jackson marveled that at Nuremberg four great nations,
flushed with victory and stung with injury, stayed the hand of vengeance and
voluntarily submitted their captured enemies to the judgment of the law. He
stated that Nuremberg was “one of the most significant tributes that
power has ever paid to reason.” We saw the stars at Nuremberg and the
vision of a secure world under a rule of law based on justice – let
that vision always remain with us and let us always keep our eyes on the stars.
What we are really talking about here today is defining our destiny –
not only for ourselves but for future generations. Do we want to continue
to progress towards a rule of law in the world based on Jackson’s vision,
or do we want to return to the post-Westphalia days where anarchy and the
rule of force were the order of the day? The choice is ultimately ours –
but if we believe in a rule of reason, we need to fight for it as Jackson
did – to bring it about.