REMARKS OF HENRY T. KING

FOR THE CELEBRATION OF THE BIRTH OF

ROBERT H. JACKSON 115 YEARS AGO

WARREN, PA

FEBRUARY 12, 2007

My words tonight are from my heart. I am indeed honored to be here tonight to honor the memory of a very distinguished American – a man whose work will live long in our history.

Robert Jackson is remembered today as a Supreme Court justice and the father of the Nuremberg Trials. Yet the road he took to becoming one of the most influential men in America and international law was not a traditional one. In many ways, Jackson is the embodiment of the American dream. As you know, he was educated right here in this area, and with only a high school education plus some study in Albany Law School, he entered the legal profession, apprenticing under local lawyers where he tried cases in barns and town halls. It was still acceptable at that time to learn law this way, but when Jackson was appointed to the Supreme Court, he was the only justice at that time who had not graduated from law school, or even college. He also never served as a judge before his appointment. Instead, he spent two decades practicing law locally in western New York before moving to Washington, D.C., when Franklin Roosevelt was elected president. Jackson’s rise from a local country lawyer to the top of his field was based on merit, not knowing the right people, not by having his ticket punched at the right times in his career.

Robert Jackson was his own person. I know this first hand. Jackson’s closing statement was delivered on July 26, 1946. I recall that I was asked to prepare a small section of it dealing with the German military. As it turned out, I stayed up all night doing this and I was very proud of what I had produced. The day after my all night stint, I rushed to the press room to see whether any of my words had been used in the final document. When I saw his closing statements in final form, on close examination I found that none of my words were used although perhaps in one or two instances my ideas were used in the final draft. In checking around with others after this episode, I found that Jackson did not believe in ghosts. If he were to speak, the words must be his own and not those of another. And I would note in passing that his speeches were indeed distinctively memorable and that they contain phrases which I believe live forever.

Robert Jackson, I believe, always liked Rudyard Kipling and I think that Kipling’s maxim “he travels fastest who travels alone” was his guiding light. This is the story of Robert Jackson’s involvement with Nuremberg. In a nutshell, it was his initiative that created Nuremberg. On much of the journey, he traveled alone.

It is appropriate now, I believe, to look at some of the qualities which made Jackson great and able to change the face of our planet.

Above all, Jackson had vision. His vision was of a world ruled by law in which peace and justice were the order of the day and he staked his career and indeed his life on an attempt to ensure that his vision became a reality in both his world and the world of the future. He could think beyond his environment and envision a world ruled by law rather than force. He wanted a world where men and women of all nations could live together under a set of principles which he believed would ensure the peace and security of the world. This was a daring dream because its implementation would ensure a planet of peoples at peace with themselves and with each other. It would reverse 5,000 years of human history where anarchy and the law of force was order of the day. Jackson said it all in his opening address at Nuremberg where he said that Nuremberg was one of the most significant tributes that power had ever paid to reason.

To accomplish the objective, Jackson felt that it would be important in setting the stage for future human history to ensure a fair trial of the Nuremberg defendants. He felt that the trial should be an example for all mankind to be guided by not only in the present but also for the future.

At his speech before the American Society of International Law on April 12, 1945, which preceded his appointment to Nuremberg, he stressed the need for fairness in conducting the trial of the Nazi war criminals. He wanted no convictions without adequate supporting evidence. Moreover, when it came to the negotiations in London, which preceded the trials, he insisted on a presumption of innocence. He wanted no part of a system where guilt was presumed.

When it came to the trial at Nuremberg, Jackson wanted defendants represented by competent German counsel and was successful in securing General Eisenhower’s financial support for this purpose. I can say first hand that a number of these German lawyers were extremely competent. Here I cite Hans Flachsner, counsel for Albert Speer, whom I knew quite well, and Otto Kranzbuhler, the lawyer for Karl Doenitz, the U-Boat king, and Hitler’s designated successor, and also Fredric Bergold, the counsel for Erhard Milch and Martin Borman.

Jackson’s greatest characteristic was his courage. It took real courage to implement his vision which was so different from the world in which he was born. But Jackson was an innovator with courage and action oriented. Moreover, he recognized the need for change and did something about it. Suffice it to say that Jackson stuck to his guns with his drive to create a world ruled by law based on justice and we are better for it.

I think that it is now important to look at some of Jackson’s achievements as they exist in today’s world. Firstly, Jackson introduced the concept of international human rights or human rights with an international dimension. To illustrate Germany wiped out the rights of Jews in Germany in 1935 but in 1946 Nuremberg held that Germany’s Jews had rights which were international in scope and thus could not be the subject of disenfranchisement in Germany. That was an important concept because it meant that the citizens of the world had a common dimension of international human rights. In Europe today, the jurisdiction of the European Court of Human Rights is based on Jackson’s initiatives at Nuremberg.

Secondly, Jackson felt that sovereigns should not be immune for crimes they committed in the name of nation states. He felt that with authority went responsibility. Through his intervention the long-held doctrine of sovereign immunity was reversed and leaders like Hermann Goering were brought to justice and held responsible for their crimes. Since then, heads of state such as Slobodan Milosevic and Saddam Hussein have been brought to justice for trial and punishment for their crimes.

Had not Jackson acted to prevent it, under the doctrine of superior orders, almost every Nazi would have had a good escape route for avoiding responsibility for his crimes. But Jackson cut off this escape route in the early negotiations with the other three allies which preceded Nuremberg. As it turned out, to have allowed this defense at Nuremberg would have been a disaster. This is because many of the orders under which the Nazi leaders operated were issued by Hitler and he was presumed dead at the time of Nuremberg. It is a matter of importance that in the charters of the trials subsequent to Nuremberg and the trial field manuals of the major powers this defense has been largely eliminated. So in today’s world this defense to war crimes is largely extinct.

Jackson felt that the most important crime dealt with at Nuremberg was crimes against peace also known as Aggressive War. Here we mean invasions, attacks, and other aggressive actions in violations international of treaties, etc. Obviously this involves the issue of sovereignty, something that Jackson did not believe a nation’s leaders could hide behind. Yet, while many of the Nuremberg defendants were convicted of this charge, little progress has been made since then in implementing Jackson’s vision in this area.

Today, Nuremberg is recognized as a turning point in international law. It was not, however, always viewed in such a positive light. Jackson withstood the slings and arrows of his countrymen. While at Nuremberg, Jackson remained a Justice on the United States Supreme Court. At that time, the Chief Justice was Harlan Fisk Stone. While Jackson was in Nuremberg trying to build a rule of law for the world, Stone characterized Nuremberg as Jackson’s “high class lynching expedition.” In his writings, Jackson struck back but he never forgot the attack by the Chief Justice whose responsibility was to pursue a rule of law in the United States.

Another opponent of Nuremberg was Senator Robert A. Taft of Ohio. In his speech at Kenyon College in November 1946, Taft shed crocodile tears for the Nuremberg defendants and said that Nuremberg was a bad example for a rule of law in Europe. Under political pressure, Taft retracted some of the thrust of his remarks, but the sting of Taft’s criticism hurt Jackson.

Another of the Supreme Court Justices, William T. Douglas, joined the critics of Jackson and Jackson had few, if any, legal cheerleaders in the United States. The American Bar Association did not endorse Nuremberg and many leaders of the bar were critical of Nuremberg.

President Truman thanked Jackson for what he had accomplished at Nuremberg, but at times his seemed to be a lonely voice in favor of Nuremberg and against Jackson’s critics. I, myself, when I returned from Nuremberg, had trouble getting a job despite high academic credentials – presumably because prospective employers did not agree with Nuremberg.

The media at the time did not do a good job in promoting an understanding of Jackson and his work at Nuremberg. There were also those in the news media who were critical of Nuremberg. They reported unfavorably on Jackson’s confrontations with Hermann Goering in his cross-examination of the number two Nazi in the Nuremberg court room. It almost seemed at times that some of the media rooted for Goering in the process. Moreover, the Nuremberg court under Chief Judge Geoffrey Lawrence of the UK did not rein in Goering to limit his lengthy responses to Jackson’s questions.

Finally, after Nuremberg, Jackson’s return to the Court was not without unpleasantness. For example, Jackson and Justice Hugo Black, a fellow Justice of the Supreme Court, reportedly didn’t speak for a year after Jackson returned to court.

Robert Jackson’s work is history. His inheritance is with us today in many spheres of international life today. The Universal Declaration on Human Rights is with us today as an inheritance of Nuremberg, as are the Genocide Convention, Torture Convention and the European Convention on Human Rights. They are part of this world in which we live and part of our inheritance from him. But there is one blot on Jackson’s memory which needs attention in this country.

At Nuremberg, Jackson said: “As we pass a poison chalice to the lips of these defendants, we pass it to our lips as well.” This meant that those nations who brought the Nuremberg proceedings and adopted the Nuremberg principles were to abide by these principles themselves. This has been the case with the British and French but not with the United States.

In 2002, the International Criminal Court was established with the purpose of institutionalizing the Nuremberg principles. One hundred two nations of the world are now parties to the Court including many of our good friends in Europe and other friendly nations such as Canada and Australia. But this is not true of the United States. President Clinton signed, on behalf of the U.S., the Rome Statute which established this court. But when the Bush Administration took office it “unsigned” it. The avowed reason for rejecting the International Criminal Court was the concern that U.S. soldiers would be subject to the jurisdiction of the Court and subject to prosecution for crimes as defined by the statute. But this assumption is unfounded. The statute establishing the International Criminal Court provides that if the nation of the person charged prosecutes its own, the Court has no jurisdiction whatsoever. Here is it important to note that U.S. soldiers who violate international law are tried under our procedures and that therefore the International Criminal Court would have no jurisdiction in these cases. So the U.S. concerns are without substance.

Another area of concern is the crime of Aggressive War, which Jackson thought was the most serious crime at Nuremberg. While the Rome Statute defines the jurisdiction of the International Criminal Court to include aggression as a crime, it does not provide a definition. Aggression cannot be defined until the statute can be amended in 2009. At that time, hopefully a definition of aggression will be negotiated and ready for consideration and acceptance. However, unless the U.S. is a part of the Court by then, we can have no say in what constitutes aggression. The United States, which through Robert Jackson created modern international law, will have to sit idly by on the sidelines.

The United States and other powers such as China and Russia have been unwilling to give up some degree of sovereignty, the right to wage aggressive wars, to ensure a better world. The U.S. for one has committed crimes against peace in a number of wars including Vietnam, Panama and Grenada. Moreover, the Soviet Union has engaged in the crime of aggression in Afghanistan and Eastern Europe, and China is continually threatening Taiwan.

I think the nations of the world should by treaty renounce aggression through a Non-Aggression Pact. I have hopes that if aggression is precisely defined in such a pact that the signatories would feel it in their interest to abide by it.

To sum up, we now have war crimes court in operation covering the former Yugoslavia, Rwanda, Iraq and Sierra Leone as well as the International Criminal Court at The Hague enforcing the principles Jackson enumerated at Nuremberg. We also have the prospect of other trials in the future such as that projected for Cambodia.

Judging based on what has occurred to date, it is a fair statement that Jackson’s impact will grown significantly in the future and the world will be better for it.

Jackson summarized what he did at Nuremberg in a few words:

“This is the first case I have ever tried where I had to persuade others that a Court should be established, helped negotiate its establishment and when that was done, not only to prepare my case but find a court room in which to try it.”

In a nutshell, this summarizes what Jackson accomplished at Nuremberg. And when all is said and done, Nuremberg was the most important trial in history.

Jackson’s qualities of vision, fairness and courage were unique in and in fact Nuremberg would never have become a reality without the thrust they gave him to pursue a better world. We owe him and Warren County a deep debt of gratitude for all he did in pursuit of a better world where law and justice would be the order of the day. May we long remember Robert Jackson and his magnificent achievements.

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