by Professor Henry T. King
Robert H. Jackson Center
May 1, 2003
There is no greater challenge currently confronting the international community
than that of defining the scope of international human rights. As this instant
the world is engaged in a global war on terrorism and it is compelled to face
the challenges of dealing with the human elements of this war, whether in
the form of refugees returning to the bombarded landscape of Afghanistan,
citizens subjected to midnight raids and arrests in the streets of Pakistan,
or those that have been captured and sent to distant prisons to be later tried
by military tribunals such as those being held at Guantanamo Bay. Similarly,
on this very day the world seeks to convict and punish those that have allegedly
violated the rights of countless citizens as witnessed in the trials of Slobodan
Milosevic in The Hague as well as in the Rwandan War Crimes Tribunal.
I raise these issues not to promote or resolve the vigorous debate that such
topics generate among governments, scholars, practitioners, pundits and the
media. Rather, I offer them as a symbol of where we have come during the past
half century since the Nuremberg War Crimes Trials. I ask you, Why is the
torture or summary execution of the al Queda prisoners beyond the scope of
our imagination? Why are Slobodan Milosevic and his henchmen sent to trial
rather than to the roaring mobs in order to be brutally tortured and executed
as in the case of Mussolini during WWII? The answer is simply that the world
refuses to accept such practices and will deem such conduct a violation of
basic human rights.
As elementary as the concept is to those of us examining the issues from a
twenty-first century perspective, let us remember that this answer was not
always readily accepted. For example, as World War II began to wind down the
question arose as to what to do with the alleged perpetrators of the worst
conflagration in history. There were those who proposed summary execution
of those alleged to be responsible for this horror. They included such distinguished
statesmen as Winston Churchill and Henry Morgenthau, the U.S. Secretary of
the Treasury. Cordell Hull, the U.S. Secretary of State, favored drumhead
courts martial designed primarily to convict defendants. 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 Henry L. Stimson, the U.S.
Secretary of War, who favored a trial – a fair trial. His voice was
powerfully joined by that of Supreme Court Justice Robert H. Jackson who on
April 12, 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 proceedings, which were
expressly designed to convict defendants. Jackson wanted convictions of defendants
based on solid evidence. If the evidence to convict was not there he favored
the freeing of the defendant. According to Jackson the trials should be 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. Justice Jackson then transmuted
his earlier statements into practice when he negotiated with the allies the
London Charter of August 8, 1945, which as the basis for the Nuremberg War
Crimes Trials.
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 otherwise
it might not have had. It demonstrated that at the most momentous trial in
history the principles of fairness had prevailed.
At Nuremberg Jackson further insisted that the defendants have counsel of
their own choosing. Thus a cadre of top German lawyers, including the leaders
of the German Bar was offered as defense counsel to the Nazi defendants. I
can say firsthand on the basis of personal experience that they put up a terrific
defense for their clients. Few who were there will ever forget the efforts
of Alfred Kranzbuhler, Counsel for the defendant Karl Doenitz, the Nazi U-Boat
Chieftain and Hitler’s anointed successor, and Hermann Jahreiss, the
“grey eminence” of the German defense staff and counsel for its
defendant Alfred Jodl, the Commander in Chief of the German armies on the
western front. They fought to the ultimate for their clients and Kranzbuhler,
indeed, was successful in getting the sentence for his client, a confirmed
Nazi, limited to ten years in Spandau Prison.
In the evidentiary phase of the Nuremberg Trials, Jackson’s approach
again offered fairness to the defendants. Jackson wanted the primary Nuremberg
case against the Nazis to be substantiated by their own documents. He wanted
less reliance on the testimony of witnesses and 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 that Nuremberg would have greater historic
credibility if the Nuremberg cases were based on the defendant’s 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 of the defendants.
Notwithstanding the revolutionary approach to fairness implemented by Jackson
at Nuremberg, the proceedings were not without their critics. For example,
Chief Justice Stone stated that Jackson was “away conducting his high-grade
lynching party” and that the proceedings were about the “victor
over the vanquished.” Similarly U.S. Senator Robert Taft condemned the
Nuremberg Judgment as Ex Post Facto Law and argued that the proceedings “would
discredit the whole idea of justice in Europe in the years to come.”
Perhaps the most telling responses to the critics of Jackson and Nuremberg
were those of the defendants at trial. Hans Frank, the defendant who had served
as the Nazi Governor General of occupied Poland, stated, “I regard this
trial as a God-willed court to examine and put an end to the terrible era
of suffering under Adolf Hitler.” With the same theme, but a different
emphasis, defendant Albert Speer, Hitler’s war production minister,
said, “This trial is necessary. There is a shared responsibility for
such horrible crimes even in an authoritarian state.” Dr. Theodore Klefish,
a member of the German defense team, wrote: “It is obvious that the
trial and judgment of such proceedings require of the tribunal the utmost
impartiality, loyalty and sense of justice. The Nuremberg tribunal has met
all these requirements with consideration and dignity. Nobody dares to doubt
that it was guided by the search for truth and justice from the first to the
last day of this tremendous trial.”
It is this legacy of justice and fairness that has led legal scholars and
historians to state that Nuremberg marked the effective start of the International
Human Rights movement. I believe that this is true.
For example, under the Crimes Against Humanity Count of the London Charter
certain offenses against human beings which warrant punishment are defined.
In stating that these are offenses, this count supports the view that human
beings have the right to protection against these crimes. The thrust of this
is to recognize, by negative implication, certain international human rights.
Additionally in the crimes against humanity count as developed in the London
Charter for use at Nuremberg, it is said that local law offers no out for
those charged with these crimes. Put succinctly, this meant that Hitler’s
oral order for “the final solution” offered no defense for those
defendants who were tried for this offense. This was the first time that authorization
by local or national authorities was rejected as a defense in human rights
cases. For the first time in history human rights had achieved an international
dimension.
The Nuremberg rulings in the slave labor cases involving Albert Speer, Fritz
Sauckel and Erhard Milch confirmed that forced slavery is an international
crime and should be punished as such. The rulings in the Goering and Frank
cases on offenses against Jews were also a vital part of Nuremberg. But above
all, in the subsequent Nuremberg proceedings, the findings of the Courts in
the Einsatzgruppen Medical Experiment and Justice cases reflect the conviction
that human rights are not solely a matter of national jurisdiction but that
a higher law – international law – is applicable in such cases
and that human beings have status under this law.
As a follow-up to Nuremberg the U.N. sponsored several human rights conventions
and declarations. There was first of all the Universal Declaration of Human
Rights, followed by the Genocide Convention which the U.S. took 40 years to
ratify and then with many reservations, and the Convention Against Torture.
These conventions have been ratified by many countries in the world today.
They constitute collectively an International Law of Human Rights based on
conventions and customs and also the Nuremberg principles, which were endorsed
by the U.N. General Assembly on December 14, 1946.
Leading democracies of the world, except for the U.S., are now parties to
the Treaty. Unfortunately the U.S., which signed but has not ratified the
Treaty, is even considering withdrawing its signature which was authorized
by President Clinton. Here I would observe only that to sign a document with
erasable ink diminishes the credibility of the signer.
I believe that this would offend our allies who have ratified the Treaty,
such as Canada, the UK, and the entire European Community. I also believe
that U.S. efforts to sabotage the International Criminal Court, which are
not the primary focus of my remarks here today, are contrary to everything
Robert Jackson and Nuremberg stood for. Always remember that the innocent
need never fear the rule of law and accepting law to bind everyone was Justice
Jackson’s dream and legacy.
Robert Jackson’s contribution to international human rights is found
also in his endorsement of the principles of universal jurisdiction. As Jackson
said in his opening statement at Nuremberg on November 21, 1946, “the
complaining party at your bar today is civilization” and he added that
as we pass a poison chalice to the lips of these defendants we pass 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 Jackson was saying was that some crimes which were dealt with
at Nuremberg were so terrible (i.e. crimes against humanity) that they could
be dealt with by any court taking jurisdiction because they were crimes against
all humanity – literally and collectively.
The court in the Eichman case applied this concept in convicting Adolf Eichman
of crimes against Jews which at the time of their commission had no legal
standing in Israel because Israel was not then a nation state. There was no
Israeli law in effect when the crimes were committed which Eichman could be
charged with violating. But, said the Court, these were crimes which were
so massive that they were crimes against all humanity and it held that Eichman
should pay with his life for their commission. The U.S. Court of Appeals in
the Demjanjuk case endorsed this concept and it is included in the restatement
of the Foreign Relations Law of the U.S. 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 are violated by his country
can bring a proceeding against his country to establish his rights. If the
court confirms his rights under the Convention, the country must abide by
the European Court’s ruling. The Court may also award damages.
As I have stated, Jackson’s concepts on human rights are set forth explicitly
in the London Charter and in its presentation of the prosecution’s case.
These concepts are firmly established today as we see presumption of innocence
and the right to counsel as pillars of international criminal jurisprudence.
Moreover, Jackson’s decision to convict defendants with their own documents
is on stage at the Milosevic trial in The Hague, where Chief Prosecutor Carla
de la Ponte is presenting volumes of the Yugoslavian leader’s former
documents in an effort to demonstrate the crimes of genocide.
Robert Jackson added a new dimension to the rights of individuals in our world
of today – an international dimension. This dimension will expand and
become firmly entrenched in the world of the future. We are, indeed, all citizens
of the world and this must be confirmed by a rule of law governing human rights
for all of us.
Robert Jackson’s raw courage in pressing forward at Nuremberg for the
establishment of a new rule of law governing human rights has vastly impacted
our world of today. It means that all people are human beings, and that as
human beings we ultimately have certain inalienable rights which warrant recognition.
Jackson’s dream has not as yet been ultimately implemented but I am
confident that with the passage of time we will recognize, as he did, our
common humanity.
As we celebrate Law Day here in Jamestown, Robert Jackson’s hometown,
I ask each of you to honor his memory and his legacy through a commitment
to vigilance in the face of continuing onslaughts on international human rights.
He led the way; our job is to follow the blueprint which he left for us and
for all humankind. The road ahead will not be easy, but it is a smooth highway
when compared to the uncharted territory which Jackson faced and conquered.
Truly, Robert Jackson was a giant of a man whose dignity, courage and brilliance
changed the course of history, guiding us to a new day when justice, tempered
with both compassion for victims and fairness to perpetrators, will rule the
world.