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Reflections on Nuremberg Trial
Remarks Of Norbert Ehrenfreund
Judge of the Superior Court, Ret.
State of California
Robert H. Jackson Center
June 13, 2005
On May 8, 1945, World War II came to an end in Europe, the bloodiest war in the history of the world. But a few months before the war ended in February 1945, the big three Allied leaders – Roosevelt, Churchill, Stalin – met in the city of Yalta in the Ukraine. They were there to decide what should be done with the captured Nazi leaders. The Big 3 agreed the Nazis were guilty of unspeakable crimes and had to be punished but they never agreed how this should be done.
As the war drew to a close, Winston Churchill, burning with the suffering of his people, said the captured Nazis did not deserve a trial. They should be given a summary proceeding and then taken out in the yard and shot. A trial would only give them a chance to spout their Nazi propaganda.
Stalin said the Nazis had already been found guilty when the Allied leaders met at Yalta. So there was no reason for a trial on that question. The only thing left to do was a short hearing to decide what the punishment should be. The French essentially agreed. Back in the States, President Roosevelt was on the fence. One of his closest advisers, Secretary of the Treasury Henry Morgenthau, was urging the President to follow Churchill’s position – no trial, just a summary proceeding and execution. At the same time, another cabinet minister, Henry Stimson, the President’s Secretary of War, advised him there should be a trial.
That summer of 1945 the representatives of the four Allied powers – Great Britain, the Soviet Union, France and the United States – met in London to decide if there should be an international trial. But what was the law? What was the court? What was the jurisdiction? There was no law. There was no court. There was no jurisdiction. They had to write the laws. They had to write the statutes that fit the crimes. They had to draft the penalties that went with those crimes.
I remember that summer. I was still in the Army in Germany. My outfit had fought through France, Germany and Austria. The Third Army. Under General George Patton. We began hearing stories of the concentration camps. My division, the 71st Infantry Division, had overrun one of those camps in Austria. We saw the bodies lying in the woods where they had tried to flee when their guards abandoned them. Some dead. Some dying. When the war was over, survivors began to talk. The news of the atrocities began to trickle out. The gas chambers. The mass burning of bodies. Little by little the stories spread across Europe, then across the Atlantic to America and the rest of the world.
And the world was enraged. What was this talk of trial? For these despicable characters? Many wondered why in the world they deserved even a single day in a court of law. Do away with them! Kill them! Hang them! This talk of trial is nonsense.
And all this rage, all the cries for revenge coming from all over the world, all the criticism of this conference for even considering a trial, one man stood up in London and called for justice. One man called for a fair trial. That man was Robert Jackson.
Jackson was a Justice of the United States Supreme Court but he was not speaking there in that capacity. No. He was speaking as the Chief Prosecutor for the United States in the event the matter ever came to trial. Just a few weeks before, the new president, Harry Truman, asked Jackson to take the job of Chief Prosecutor. It was agreed he would be on temporary leave and when the trial was over – no one knew how long it would last – he could return to his seat on the Court. Jackson agreed and went to London.
Jackson did what no other Supreme Court Justice had ever done before. He stepped down from the highest court in the land to become, in essence, a trial lawyer. He was a rising star on the Court; he had a chance to be Chief Justice. His reasoning and eloquence had marked him for greatness. Why would he leave his seat to risk his reputation and take on a struggle that was plagued with uncertainty and criticism?
Robert Jackson had two passions when he went to London. The first was a passion for justice. Even before Truman made his chief prosecutor, he said of the trial of the Nazis: “The world yields no respect for courts that are organized to convict.” He said, “You don’t put man on trial unless you are willing to set him free if he is not proven guilty beyond a reasonable doubt.”
The other was a passion for peace. He wanted to deter war and the atrocities of war. He feared that civilization could not survive another world war. He saw this trial as an opportunity to stop it from happening. He wanted to send a message to warlike leaders across the world: If you wage an aggressive war or commit war crimes, then you can be brought before a court of law and face serious consequences.
Where did it all come from? These passions? This unique gift for eloquence? Did it come from his studies in college? No. Because Robert Jackson never went to college. People are stunned when I tell them that. Whoever heard of a Supreme Court justice who never went to college? What about law school? No. He never graduated from law school, never received a law degree. One year at Albany Law School and that was it. That was the sum total of his formal education after high school.
I don’t mean to curry favor with this fine audience but all the redeeming features that led Franklin Roosevelt to name him to the Supreme Court had to come from here; his family, his hometown. Here is where he learned to write, speak with winged words, and debate, not in any college or law school but right here in Frewsburg and Jamestown High Schools. Here in Jamestown he studied law the old-fashioned way, by reading in a lawyer’s office. As you know his mother was a teacher, his father bred horses, and out of the rugged American farm life of the time, he learned the moral code that carried him to greatness.
Justice must be done, Jackson told the conference in London. Due process all the way down the line. A fair trial for every defendant. Some of the Allies looked at him as if in shock.
In essence they said: Do you mean a fair trial for Hermann Goering, second in command to Adolf Hitler, chief of the Gestapo? He ordered the concentration camps. A fair trial for him?
A fair trial for Ernst Kaltenbrunner, in charge of exterminating all of the Jews in Europe? For him, a fair trial?
Or for Alfred Rosenberg, chief theorist of anti-Semitism, co-founder of the Nazi Party? Are you serious?
Yes, Jackson said. A fair trial. For every defendant, justice. Jackson was adamant. He would not budge.
They wanted to know what he meant by fair trial. The record from London is not clear on how he answered but we know from the trial what he meant.
The presumption of innocence? A strange concept to some of the Allies. That means that every Nazi defendant must be presumed innocent. It means that every judge has to look every defendant in the eye and be able to say: I presume you are innocent and I will hold to that presumption unless and until you are proven guilty beyond a reasonable doubt. In Russia a criminal defendant was presumed guilty and had to prove his innocence.
The appointment of counsel. Every defendant will have an attorney of his own choosing and the Allies will pay for it.
And one more right that Jackson insisted upon. An open trial. He even designed a courtroom with a press gallery and special platform for the cameras.
The Soviet delegate, General Nikitchenko, objected strenuously to Jackson’s concept of fair trial. They are already guilty, Nikitchenko said. Your own President Roosevelt said they were guilty at the Yalta meeting. Our own leaders have already decided. What is this foolishness of a trial on the issue of guilt? Let’s get on with it. Jackson had to explain that in America the President cannot find an accused guilty of anything. He can only accuse. A court of law must decide.
The debate continued for weeks. At times Jackson became frustrated. He threatened to walk out if they could not agree on a fair trial. Every nation could hold its own trial. But he knew the importance of an international verdict. He fought on as if on a crusade for justice. Finally he won out and the trial went forward under his version of due process.
Ladies and gentlemen, I say to you this was an extraordinary event; a milestone in legal history. It was a decision that ignited a revolution in international law because for the first time the rule of law was being applied to leaders of nations. It was a moment when America stepped forward and took over the moral leadership of the world. Jackson set forth for all civilization a very simple but profound principle. That every person accused of crime, no matter how heinous that crime may be, no matter how high or low that person’s status, is entitled to a fair hearing. We look at that principle today and say oh, of course. We take it for granted. That is obvious, we say. But it was not so obvious then. Consider Churchill’s call for immediate execution. Consider that in towns in our own country defendants were being tried for serious crimes without counsel.
It was a time that ranks with that other time in history when human beings no longer punished each other by the hue and cry of the public, by the thirst for revenge, but for the first time let reason and justice govern punishment.
I still remember the first time I walked into the Palace of Justice at Nuremberg. Outside the city lay in ruins, shattered by a British air raid just a few months before. When I was in Nuremberg right after the war you would walk the streets and smell the stench of death from the bodies still lying under the debris. I took my seat in the press gallery. Hermann Goering, Hitler’s next in command, sat about twenty feet away from the defendants’ box. He looked about the courtroom as if to check out who was present. Our eyes met. I could almost tell what he was thinking. What lies will he write about me? I looked down the line. There were twenty-one in all. Charged with the murder of six million Jews and millions of others that Hitler found undesirable. Questions raced through my mind. They still do. Who were they? How could they? Were they human beings turned beasts? Was the human race capable of such bestiality? How could this cultured nation, so rich in music, literature and science, land of Beethoven, Bach and Brahms, of Goethe and Schiller? How could it have produced leaders so barbaric?
The trial opened with Jackson’s opening statement. It turned out to be the high point of the trial. The press hailed it as a masterpiece, moving, eloquent; some called it the finest speech ever made in a court of law. Listen to his first words:
“May it please your honors. The privilege of opening the first trial in history for crimes against the peace of the 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.
I have been a lawyer and judge for forty-five years. I never heard anyone speak with such eloquence. I wonder if he learned to speak that way when he was on the debating team at Jamestown High School.”
Later on in that speech he made what has become a classic plea for justice. He was the prosecutor. He was seeking conviction. But he still pleaded with the judges to be fair to the men on trial. “To pass these defendants,” he said, “a poisoned chalice is to put it to our own lips as well.”
When it was over, Jackson won convictions on eighteen of those in the dock. Another defendant, Martin Bormann, was convicted in absentia. He was never found. Of the eighteen found guilty in court, eleven were sentenced to hang. Of those eleven, only ten were hanged. As you probably know, Hermann Goering was never hanged. He escaped the gallows by committing suicide. When they went to get him in his cell he was dead. Somehow he managed to smuggle a cyanide pill into his cell and bit into it just a few minutes before the guards came.
Now sixty years have passed since Nuremberg. You might well ask: What did Jackson achieve there? Did he accomplish his goals? Did he stop war? No, of course not. There have been a hundred wars since the trial. Did he stop the atrocities of war? No, he didn’t do that either. We know from Bosnia and Kosovo and Cambodia, from Rwanda and Iraq, from Sudan and all the rest he never stopped the atrocities of war. Did he create, as he wanted to do, an international court for war crimes? No, not that either. More than half a century later, in 2002, the first international criminal court was established at The Hague in The Netherlands. But ironically, although it was Jackson’s dream, the United States is not part of it.
And yet his accomplishments were tremendous. He changed the world of justice forever. First of all it was a triumph of good over evil. Jackson brought down the worst criminals in history. I say he did that although there were other prosecutors. But he was the engineer, the driving force, of the Nuremberg trial. It was, in essence, Robert Jackson’s trial.
As we have seen, he set a new standard of fair trial for the world to follow: not only in international law, but in domestic law as well.
He showed how the rule of law could be applied to punish, if not prevent, the atrocities of war. For the first time heads of state could be held accountable, individually accountable, for war crimes. No longer would they be able to hold up their status as a shield against prosecution.
He set in motion the human rights movement. For the first time citizens had a right to complain if they were abused by their government. A new crime, Crimes Against Humanity, came into being.
He showed how low a highly civilized nation could sink under ruthless dictatorship. He created the principles for future war crimes trials; that waging aggressive war and the conspiracy to wage aggressive war are crimes; that it is no defense for alleged war criminals to say they were merely obeying orders as so many tried to do at Nuremberg. He prevented the Nazi leaders from becoming martyrs which they would have done had there been no trial.
And one more thing, perhaps the most important of all. A few years ago the United States Holocaust Museum in Washington conducted a poll to see what Americans thought of the Holocaust. The poll showed – and this is hard to believe – that up to twenty percent of Americans either doubted or did not believe that the Holocaust ever occurred but that it was only a myth concocted by the Jewish people.
But the trial record shows what the Nazis did. More than any other single event, Nuremberg, its evidence tested with the closest scrutiny, revealed the nature of the Holocaust. Had there been no trial, had the Nazi leaders been taken out in the yard and shot without trial, had Jackson not won his fight for a full and fair hearing, that figure of twenty percent who deny the Holocaust would be much greater.
Ladies and gentlemen, as Americans we are proud of our tradition of fair trial and how it continues to spread across the world. Americans have fought and died for it and will do so much again. And some evening, in the quiet of your room or your study, you might sit back and think of the great events in history that shaped this system of justice. You might think of the Magna Carta, the invention of the writ of habeas corpus, the Constitution of the United States and the Bill of Rights, the United Nations Universal Declaration of Human Rights.
I suggest to you today that you might want to add another event to that list: Robert Jackson’s victory in London for a fair trial at Nuremberg, a victory for him, a greater victory for humanity.
Transcribed by Charlene J. Peterson, 2005