Robert H. Jackson Center

Robert Jackson’s Place in History: Nuremberg Revisited

REMARKS OF HENRY T. KING, JR.
Chautauqua Institution
Chautauqua, New York
June 13, 2003
It is a great pleasure to be here with you this evening to commence what I believe will be a dynamic series of discussions on the most significant event of my life – the Nuremberg trials.

At the outset, I thank the Chautauqua Institution and the Robert Jackson Center for the opportunity to engage in these discussions and I thank all of you – not only for your attendance – but for what I anticipate will be your active participation over the coming sessions.

But we gather to do more than embark on the proverbial trip down memory lane. Nuremberg and its legacy provide inspirational imperatives to our tumultuous times. Our discussions will examine the history of Nuremberg, but more significantly, we will examine Nuremberg’s impact on our current state of international affairs.

It must be acknowledged that we no longer live in a time where the whims of kings and dictators entrench the world in great global wars. We are also fortunate to no longer live in a period where humanity’s ultimate weapons stand poised and, if used, assure the mutual destruction of our civilizations. However, the past world and cold wars between states have evolved into conflicts between enemies that recognize no boundaries – and no morality. Notwithstanding the intentions of these foes to return civilization back to the Darwinian jungle where might and chaos reign supreme, it is the universal precepts of limited sovereignty and basic human rights which remain the guiding force to achieve lasting international peace. Nuremberg created these principles.

One of the world’s most prominent international criminal lawyers and scholars, Cherif Bassouni, has stated the Nuremberg’s message was “we shall never forget.” My friends, as a participant in that great endeavor, I would elaborate on Cherif’s statement and suggest that Nuremberg’s legacy is not only that “we shall never forget,” but also that “We shall never let it happen again.” It is this message that guided the Nuremberg proceedings and has guided my life.

“Dignity does not consist in possessing honors, but in deserving them.” – Aristotle

No man is more than deserving of honors than the architect of Nuremberg – United States Supreme Court Justice Robert Jackson.

Nuremberg pervades our understanding of the world today. Indeed, the trial at Nuremberg has become more than a mere historical event – it has become a fundamental aspect of our heritage, of our jurisprudence, even of how we perceive society. The trial ignited a revolution in international law, and it dramatically changed the relationship between individuals and national governments. But despite this legacy, we find little reference to the Nuremberg trial in today’s media-driven world. Nor do we find reference to the man who, more than any other person, established Nuremberg as a global beacon for the generations who were to succeed it. For all of the importance that the trial holds for our times, the story behind Nuremberg and its chief prosecutor, Justice Robert Jackson, languishes beyond the familiarity of even prominent legal scholars. The historical gap is to our detriment: Nuremberg established our contemporary conception of the international community. We forget what transpired there at our peril.

Preserving the history of Nuremberg is of both scholarly and personal import for me. I arrived at Nuremberg in the spring of 1946, a newly minted graduate of Yale Law School, I served on the staff of Brigadier General Telford Taylor. In the later Nuremberg trials, I prosecuted Erhard Milch, who, under Hermann Goering, commanded Germany’s infamous air force, the Luftwaffe. The Tribunal convicted Milch for his key role in organizing the Nazi slave labor program and sentenced him to life imprisonment.

How had the Nuremberg Trials become a reality?

As World War II drew to an end, Henry L. Stimson, the U.S. Secretary of War, advocated that Nazi leaders be tried for the Holocaust and for provoking World War II. The idea of trying vanquished parties to an international conflict was not novel. In fact, victors had employed trials as a mechanism for exacting reparations from defeated powers for centuries before the Nazis rose to power. Nevertheless, Stimson’s proposal prompted vociferous opposition from English and American officials. These leaders, who included Winston Churchill, Henry Morgenthau and Cordell Hull, sought summary execution for the most prominent surviving Nazis. Curiously, Josef Stalin advanced a more complicated procedure. Stalin suggested that Nazis should stand trial with a presumption of guilt, and that judges presiding over their trials should concern themselves with determining the degree of punishment.

These proponents deadlocked until President Franklin Roosevelt’s death on April 12, 1945 plunged the world into mourning. The day after Roosevelt’s death, Robert H. Jackson, then a Supreme Court Justice, pronounced his support for Stimson’s proposal. Jackson advocated that Nazi leaders be tried, but that they be subject to a fair trial. By that time, Justice Jackson had established himself as one of the most articulate jurists in American history. His agreement with Stimson was momentous, and it would shape the idea of international justice in complex and unanticipated ways.

The endorsement by so respected an authority had tremendous influence on Judge Samuel Rosenman, an advisor to Presidents Roosevelt and Harry Truman on the subject of legal recourse against Nazi aggressors. Rosenman’s acceptance of Jackson’s position went beyond merely heeding his calls for a trial. On May 2, 1945, at Rosenman’s recommendation, President Truman appointed Jackson to be the United States Chief Counsel for redressing Nazi crimes. His mandate included “preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with responsibility after the war was to rest primarily with Jackson.

Jackson entered negotiations with British, French, and Russian officials in Europe shortly after his appointment. During those talks, he developed an initiative, multilateral in support, but under the leadership of the United States, to try the top Nazi officials. He returned from Europe in early June to present his recommendations for the proposed trial to the President. That report, submitted to President Truman on June 6, 1945, delineated the conceptual foundation for the International Military Tribunal at Nuremberg.

President Truman approved the Jackson report, and Jackson entered into negotiations with European officials and devised the London Charter of August 8, 1945, which established the doctrinal underpinnings of Nuremberg, introducing the procedure and substance that was to govern the trials of the Nazi leaders.

Jackson drafted the original charges against the Nazis, outlining three categories of crimes for which the defeated Germans would be called to account. The first category included in the draft was the crime of aggressive war (Crimes Against Peace). Jackson considered this to be the most heinous international crime. He set as a priority that German aggression would be subject to prosecution, and he intended that the crime of aggression’s ambit be as broad as possible.

Jackson’s second category of substantive crimes was that of war crimes – crimes against the laws or customs of war. This category was more traditional, as international law had already recognized limits on the ability of nations to conduct war. These crimes had since been codified in The Hague and Geneva Conventions governing the treatment of civilians and prisoners of war during the course of international conflict.

The third category of crimes envisioned by Jackson were crimes against humanity – crimes committed in the course of aggressive war against individuals for racial, religious, or political reasons. Within this category lay the crime of genocide, the slaughter of millions of Jews and other ethnic groups. The substance of this crime, calling rulers accountable for their treatment of nationals within their borders, was revolutionary. Genocide had been defined in scholarship and political discussion years earlier, but Jackson’s vision extended beyond mere identification of atrocities. The International Military Tribunal would, for the first time, punish genocide as one might punish the murder of an individual. Moreover, Jackson proposed that the trial permit findings of conspiracy on any of the three substantive charges. These three counts were incorporated into the London Charter. Jackson had developed a legal framework in which to embody the principles he had introduced in his report to President Truman.

Jackson encountered opposition in implementing his draft in the London negotiations. The Soviets wanted the aggressive war count limited to the actions of Nazis. They objected to Jackson’s generic approach towards aggression. Furthermore, they restated Stalin’s insistence on a presumption of guilt, rather than innocence. Interestingly, such a burden might have had a deleterious impact on the fact-finding process during the trial. Had the Soviets prevailed on this point – ostensibly a harsh measure against the Nazis in response to the atrocities that they committed – it would have impeded Nuremberg’s value as a catalog of humanity’s baser instincts, of the awful potential of corrupt power. The French, on the other hand, resisted the possibility of a conspiracy conviction. French officials argued that conspiracy was inextricable from the other substantive counts.

Jackson pushed forward despite the objections from America’s allies, and the legal theories that he described in the London Charter ultimately prevailed as the governing law at the Nuremberg trial. The London Charter does contain a generic definition of aggression, and the Nuremberg defendants were afforded a presumption of innocence. The accused were subjected to possible conviction for conspiracy in addition to the substantive charges.

The practical problems of establishing an international tribunal were nearly as vexing as the legal disputes that arose. The situs of the trial, for example, was the source of some contention among the Allies, many of whom propounded that Berlin would be an ideal location for bearing the crimes of the Nazi regime. On this issue, too, Jackson prevailed. Jackson selected Nuremberg, a city with a large, well-preserved courthouse and an attached prison. Jackson was keenly aware that the Nazis had staged political rallies in Nuremberg from the inception of the party. One of the Nazi’s regional headquarters was located in the city. Furthermore, the Nazi laws that stripped Jews of their rights as German citizens emanated from Nuremberg, and they were known as the Nuremberg Laws of 1935. The force of symbolism in sparing Berlin and choosing Nuremberg cannot be overstated, and the emotional power of the trial’s situs grew with each revelation of the Nazi’s evil deeds before the Tribunal.

Jackson also played the critical role in the selection of the defendants who were to be tried at Nuremberg. He sought to have all segments of Nazi society represented at trial, that leaders from every corner of Nazi Germany’s tainted civilization could be called into account. Accordingly, Jackson prepared to try diplomats and industrialists alongside military and political leaders. This strategy possessed more than symbolic significance. Establishing as criminal the conduct of a wide array of Nazi leaders would facilitate subsequent prosecution of the subordinates to these Nazi leaders.

But Jackson’s achievement extended far beyond merely bringing the trial to fruition. His leadership was also present in virtually every phase of the actual trial itself. When he rose on November 21, 1945, in the well of the Nuremberg Courthouse to deliver the opening statement for the prosecution, the world listened. The words that Jackson offered on that fateful day are engraved on the memories of those who heard him speak. He spoke from the heart. He spoke on behalf of “civilization,” whom he, for all practical purposes, names as the complaining party at Nuremberg. The world listened.

Jackson envisioned Nuremberg to be a landmark for the world to follow. He wanted to make sure that the principles established at the trial were to be all encompassing. The charges against the Nazis were not intended for limited application; they were to apply to Jackson’s own countrymen as well as to the Nazis in the dock. The trial weighed, for the first time in a truly international forum, the substitution of law for force in governing human relationships. No other litigation could match Nuremberg in its ambitious scope. In his prosecution, Jackson’s passion and eloquence rose to the importance of the events surrounding him.

Jackson’s opening statement began with the rightful assertion “[t]hat 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.” He recognized the legacy that the trial would leave, and cautioned all those in the courtroom that they “must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.”

Jackson would not tolerate “ghosts” who wrote speeches for others. The prose he delivered was his own. I myself vividly recall staying up all night working on what I believed was to be Robert Jackson’s closing statement at Nuremberg. My area of focus was the German General Staff and High Command. I chose my words carefully in the material that I prepared because I anticipated that they would become a party of history. But as I witnessed Jackson’s summation before the Tribunal, I listened to a prosecutor who spoke only from within his heart, in words that he had crafted himself. It was mastery of the written and the spoken word that made Jackson so unique, both as a Supreme Court Justice and as a lawyer. His “forensic eloquence” has, in my view, no equal in the history of legal advocacy.

Jackson sought to ensure that the defendants had a fair trial. He granted the defendants their choice of counsel. He and his staff made certain that the defendants were given full access to the documentary evidence presented against them. The Nuremberg staff made every effort to provide compulsory process, to locate witnesses believed to be important to the cases of the defendants.

Jackson was extremely strong willed. He showed the strength of his convictions in advancing the London negotiations and, in effect, creating the Nuremberg trial in the image he favored. He was hard-nosed in his push to make the London Charter a lasting and fair legal structure for the first international war crimes trial in history. And he succeeded: the Charger is a declaration to the world that crimes of the sort carried out by the Nazis will bring retribution and punishment of those responsible. When we evaluate Jackson’s achievement in securing agreement among the Allies on the London Charter, we should never forget that the Charter covered unbroken ground, that it was without historical precedent.

Nuremberg’s success was largely dependent on Jackson’s vision, but it could not have come about without the support of the Executive Branch. President Truman, who had stood up and been counted in support of Nuremberg from the beginning, declared:

I have no hesitancy in declaring that the historic precedent set at Nuremberg abundantly justifies the expenditure of effort, prodigious though it was. The [Nuremberg] precedent becomes basic in the international law of the future. The principles established and the results achieved place international law on the side of peace as against aggressive warfare.

And yet history is not always kind, and Robert Jackson’s Nuremberg had its opponents. For his work at Nuremberg, Jackson endured the slings and arrows of some of his countrymen. Chief Justice Harlan Stone of the United States Supreme Court characterized Nuremberg as “Jackson’s high grade lynching part.” Another of Jackson’s colleagues on the Court, William O. Douglas, also condemned the trial. Moreover, the Nuremberg judgment drew political fire from Senator Robert A. Taft, a powerful politician and presidential candidate. Taft condemned the Nuremberg judgment as ex post facto law. He argued that Nuremberg was borne of the “spirit of vengeance” and that “the hanging of the eleven men convicted will be a blot on the American record, which we shall long regret.” Taft stated that “by clothing policy in the forms of legal procedures we may discredit the whole idea of justice in Europe for years to come.”

Stone, Douglas, and Taft are fallen prophets now, but at the time their criticism, coming as it did from the highest levels of American government, might have derailed the trial. These and other critical comments have now deservedly faded into the shadows of history. They were ill conceived at the time of Nuremberg; they remain so today. In contrast, Nuremberg survives as a testament not only to its own principles, but also to the individual effort and vision of Jackson and his contemporaries.

Perhaps the most telling responses to the critics of Jackson and Nuremberg are those from defendants in the trial itself. Hans Frank, the defendant who served as the Nazi Governor General of Occupied Poland, stated, “I regard this trial as a God-willed court, destined to examine and put an end to the terrible era of suffering under Adolf Hitler.” With the same thrust but a different emphasis, defendant Albert Speer, Hitler’s War Production Minister, stated, “This trial is necessary. There is a shared responsibility for such horrible crimes even in an authoritarian state.” Dr. Theodor Klefisch, a member of the German defense team for the defendant Gustav Krupp von Bohlen, 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 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.

In its conclusion, the trial at Nuremberg was firm and it was fair. It reached and it punished those responsible for crimes they had committed, but it freed those who were not proven guilty beyond a reasonable doubt. Hermann Goering, Joachim Von Ribbentrop, and Wilhelm Keitel all received justice in the sentences rendered by the Tribunal. But Hjalmer Schact, Franz Von Papen and Hans Frirsche were freed at Nuremberg because, in their judgment of the Tribunal, the causal tie to Nuremberg-type crimes had not been established in their cases. Jackson disagreed with the verdicts in the cases of Schact and Von Papen. However, the acquittals contributed to the legitimacy of the Nuremberg trial b establishing its evenhandedness in the public mind.

In The Wake Of Nuremberg: The Aftermath Of The Trial

In his report to President Truman after the completion of the primary Nuremberg trial, Robert Jackson said that Nuremberg “may constitute the most important moral advance” to grow out of World War II. In his final report, after he resigned as U.S. Chief Counsel for War Crimes, Jackson state that “[i]t is not too much to hope that this example of a full and fair hearing, and tranquil and deliberative judgment, will do something toward strengthening the process of justice in many countries.” I believe that after fifty years it can be maintained with considerable credibility that these visions have largely come to pass.

Apart from the establishment of the Nuremberg principles, the trial was the first postmortem autopsy of the workings of a savagely efficient, modern dictatorship. The trial revealed the controls that made such a dictatorship possible. Here we speak of controls over the media, political parties, churches, and all other avenues of free expression as well as the corruption of the judicial system so that it became an instrument for achieving the criminal objectives of the dictatorship. The record of Nuremberg spells out in detail how all this was accomplished in a country with a highly developed culture and civilization.

The record of Nuremberg will be there always as a landmark for future generations to see and avoid. It is there with all his extremities serving as a reminder of what can occur when the human spirit is completely corrupted. Since the Nuremberg case is almost totally documentary, with those documents having been written by the Nazis themselves, the world and future generations will be able to study the evolution of evil within a “civilized” society forever.

Robert Jackson himself was extremely conscious of the value for future generations of the Nuremberg record – the historical account of the worst regime in recorded human history. Nuremberg traced the roots of Nazism from its birth through its flowering and to its final climax at the end of World War II. It is all there from start to finish in the transcript of the Nuremberg proceedings, supplemented by the supporting documents introduced by the prosecution. As Jackson himself said so prophetically, “No history of this era can be entitled to authority which fails to take into account the record of Nuremberg.”

Justice Jackson’s focal point at Nuremberg was individual responsibility; he wanted individuals to be held responsible for the criminal deeds they carried out as leaders of states. He did not accept the paradox that “legal responsibility should be the least where power is the greatest.” Jackson sought to pull aside the curtain of sovereign immunity and address crimes committed in the name of states by individuals. This concept, as activated at Nuremberg, was revolutionary – a complete break with the past.

In keeping with this, and in his drive to hold individuals accountable for their criminal actions, Jackson also wished to eliminate the defense of superior orders as it applied to the high level defendants on the dock at Nuremberg. He saw that if this doctrine were accepted as a defense together with the doctrine of sovereign immunity, no individuals would be responsible, and he did not believe that society could tolerate so broad an area of official irresponsibility. Jackson wanted the top Nazi leaders on the dock at Nuremberg to stand up and be counted in the terms of what they had done. He wanted to make it impossible to hide behind the defense of superior orders.

In the success of this approach at Nuremberg, Jackson blunted the thrust of the doctrine of national sovereign immunity. Much of what the Nazis did was in accordance with Nazi law and the dictates of their leader, Adolf Hitler. But for Jackson, and for Nuremberg itself, that was no defense because there was a higher law – international law – that was applicable. The top Nazis at Nuremberg had violated that law in carrying out Hitler’s dictates.

But Robert Jackson’s Nuremberg vision did not end with the convictions achieved – it encompassed individuals not only as having international responsibilities, but international rights as well. The count of the indictment for crimes against humanity against the Nazi defendants sought to punish individuals for actions that were usually state-ordered. Over objections of defendants, the Tribunal affirmed that a higher international law governed. In a very real sense, this marked the beginning of the international human rights movement.

The more significant, and more dramatic, consequence of Nuremberg is personal rather than legal. The trials altered the way that individuals perceive their status. Oppressed peoples, victims of war, and ethnic groups threatened with genocide now cry for the prosecution of those who inflict suffering upon them. Beyond the construction of new legal institutions, Nuremberg reoriented international society to be more sensitive to injustice, less forgiving of lawlessness.

Nuremberg was among America’s most noble undertakings. In Robert Jackson’s opening statement, he advocated universality, the application of principles that would assure history that the trial was more than mere victor’s justice. As Jackson declared more than fifty years ago,

[Civilization] does expect that your judicial action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have “leave to live by no man’s leave, underneath the law.

Conclusion

Nuremberg was a bright moment in our historical development, but only one of many. It has added almost limitless dimensions to the growth of international law. However, the trial was ad hoc; it was limited to the criminal activities of reigning Nazi officials. Nevertheless, the trial and its aftermath raised many of the issues that we still face in building a better world – a world ruled by law rather than force. The importance of Nuremberg cannot be overestimated.

Nuremberg was international law in the making. It was action-oriented. It was a convergence of conflicting national perspectives and the emergence of a unified international solidarity. The trial could have meant immediate progress in moving further, right at that time, toward the development of a regime where law replaced force in resolving human conflict. But the Cold War immediately intervened, precluding the opportunities for international cooperation in the pursuit of justice. The U.S. – Soviet conflict obscured even the existence of international laws. The enforcement of those norms was impossible at that time. But with the end of the Cold War there have been important developments, which we will be examining tomorrow.

Meanwhile, I leave you with a final thought. The vision of Robert Jackson advanced international law more than any other member of his generation. Jackson’s winged words at the trial are words that remain with us today, words that lift the human spirit, and words that will live in eternity.