Robert H. Jackson Center

The Crime Of Waging Aggressive War

An Address by Whitney R. Harris

Prosecutor at the Trial of the Major German War Criminals
At Nuremberg and the Author of TYRANNY ON TRIAL
The Robert H. Jackson Center
October 1, 2004

When Euripides wrote The Trojan Women in the Fifth Century B.C., Athens was locked in a bitter 16-year-old struggle with Sparta, its rival city-state. Emotions concerning the justness of the war ran high on both sides. A year previously, Athens had launched a pre-emptive strike against Milos, an island friendly to Sparta, which wanted to remain neutral in the Peloponnesian War. The Athenians killed all the men and sold the women and children as slaves. Troy was razed to the ground.

It is against this background of crime and horror, of the suffering caused by war, that Euripides wrote The Trojan Women, perhaps the finest and most powerful anti-war play ever written. The play follows a small group of women as they wait to be sold into slavery or taken by force as concubines. Hecuba laments: Oh my county, Oh unhappy land. I weep for thee now left behind. Oh what mourning, and what sorrow! Oh what endless stream of tears in our houses. The dead zone alone forget their griefs and never shed a tear.”

Its bitter denunciation of war makes us understand why this play, first performed at the Festival of Dionysus, held in 415 B.C., remains dynamically profound today. How can it be that over 2,500 years after this tragedy, man, who fancies himself to be intelligent, has still not found a solution to this tragedy – war, and the aftermath of war?

AGGRESSIVE WAR

By Whitney R. Harris

In 1934 President Franklin Roosevelt invited a Jamestown, New York, attorney, Robert H. Jackson, to come to Washington as General Counsel of the Bureau of Internal Revenue. Jackson became an immediate favorite of the president, so much so that by 1939 he was considered by Roosevelt as a suitable candidate for the vice-presidency of the United States. In 1940 President Roosevelt appointed Jackson, Attorney General of the United States.

War broke out in Europe on September 1, 1939 with the German assault upon Poland. England and France responded to their treaty commitments to Poland, but were unable to stem, or even impede, the German assault, and Stalin connived with Hitler to tear Poland apart and share the spoils. When Hitler turned to France his victory was swift and complete. Only Great Britain opposed him in the West. England came under intensive German air assault, and her fleet and convoys were heavily attacked. Churchill did not hesitate to carry on the flight with Hitler alone, but he sought to replenish and augment British military facilities that were sustaining alarming damage by the German military machine. The need for destroyers was desperate. They were essential to guard the convoys bringing war materials to England. And the Germans were sinking them literally at the rate of one a day.

The British Ambassador to the United States, Lord Lothian, asked Secretary of the Navy, Frank Knox, for the destroyers of which Great Britain was in such desperate need. An agreement was worked out under which the United States provided destroyers to England in exchange for certain British possessions in the Atlantic and Caribbean. It was this agreement that led to the Lend Lease Act of March 11, 1941. As Attorney General, Jackson gave his opinion to President Roosevelt that the consent of Congress was not required for this transaction. But it gave rise to the serious question whether such support to Great Britain in its war with Germany, might be deemed to constitute an act of war by the United States against Germany, justifying German retaliation against the United States. Jackson stated that even if the transaction was considered to aid Great Britain in its struggle with Germany, it would not constitute a violation of international law by the United States. As he later wrote: “At the time The Hague conferences were held and most conventional international law was written, each state was regarded as having the legal right to resort to war against any other state at any time for any reason or for no reason at all. Since all war-making was a legal right, a third state that wished to claim the immunities of a neutral had to abstain from many forms of assistance to either of the equally lawful belligerents. But following the First World War, nearly all of the nations, including Germany, agreed unequivocally by the Kellogg-Briand Treaty to forgo war as an instrument of policy. That treaty, and many others that Germany had entered into, left no vestige of legal right for her to resort to a war of aggression. From the beginning, Roosevelt, Hull, Welles, Stimson and I had been in agreement that Hitler’s war was one of naked aggression, that by contemporary international law it was an illegal one, and that other powers were under no legal obligations to remain indifferent but instead had the right, not a duty, to vindicate the rule established under these treaties by assisting the victims of such unlawful aggression. “It was upon this legal basis that Secretary Stimson and Secretary Hull espoused the Lend-Lease Program before Congress. This concept of the Nazi attack on the peace of the world as an illegal enterprise was the fundamental assumption of the whole aid-to-England policy of the Roosevelt administration.”

Jackson was nominated by President Roosevelt as an Associate Justice of the Supreme Court in 1941. The nomination was quickly confirmed and he was no longer an active advisor of the President in meeting the constant crises of World War II following the bombing of Pearl Harbor by Japan on December 7, 1944 and America’s entry into World War II. Jackson desired to serve his country more actively. The opportunity came as the war drew to a close with an Allied victory. Supreme Court Justice Robert H. Jackson was to serve America as it chief prosecutor in the trial of the leading German war criminals of World War II.

The genesis of this historic trial was the Moscow Conference of October 1943 at the conclusion of which a statement was signed by President Roosevelt, Prime Minister Churchill, and Premier Stalin declaring the determination of the three powers to hold Germans individually responsible for crimes committed by them in the course of war. At that time Lord Chancellor Simon and Prime Minister Churchill were of the opinion that leading war criminals should be disposed of by executive action, a view echoed in the United States by Secretary of the Treasury Henry Morgenthau who proposed to President Roosevelt that German arch criminals be shot upon capture and identification. Secretary Morgenthau was opposed in the Cabinet by Secretary of War Henry L. Stimson, who believed that leading Nazis should be brought to trial before an international military tribunal. Stimson’s views ultimately prevailed, and a memorandum recommending a trial was prepared for the use of President Roosevelt at the Crimea conference in February 1945. The memorandum stated that condemnation of German war criminals after a trial would command maximum public support and receive the respect of history, and it noted that use of the judicial method would make an authentic and irrefutable record of Nazi crimes.

If the American position were to prevail it was necessary that a person of impeccable qualifications be designated to represent the United States. Justice Jackson was appointed by President Harry Truman on May 2, 1945 as the United States Chief of Counsel, charged with obtaining the agreement of the Allies to a trial of the major German war criminals before an international military tribunal, and he entered upon this daunting task with unswerving determination. He succeeded in persuading the British to accept the proposal to punish leading German war criminals only after a fair and open trial.

Representatives of the United States, Great Britain, France and the Soviet Union met in London on June 26, 1945 for the purposed of drafting an agreement for the trial of the Germans, a charter for the tribunal, and an indictment of the principal leaders of Nazi Germany. Justice Jackson thought that the allied representatives would quickly agree to the American plan calling for a fair trail to determine the guilt or innocence of the accused, a general charge of conspiracy to seize control of the state and subvert it to the criminal purposes of the conspirators, an accusation of waging aggressive war, and specific charges of war crimes against soldiers and humanitarian crimes against civilians. To his surprise, the American plan incurred opposition from other representatives.

The question arose whether the initiating of aggressive war, in general, should be charged as criminal, or whether the aggression count should be restricted to acts in violation of specific treaties, agreements or assurances. The latter viewpoint had more the indicia of a contractual than a criminal violation. Obtaining a judicial declaration that the initiating and waging of a war of aggression was a crime in international law was to Justice Jackson an issue of such supreme importance that he would have foregone the trial rather than surrender this principle. Other representatives were less concerned since in most cases Hitler’s aggressions had violated specific treaties, agreements, or assurances. Moreover, the charge against heads of state for waging aggressive war was unique in international law and to the French, at least, carried the opprobrium of ex post facto legislation.

In opposing the inclusion of the charge of aggressive war the French representative declared that “the Americans want to win the trial on the ground that the Nazi war was illegal, and the French people and other people of the occupied territories just want to show that the Nazis were bandits.” But Justice Jackson insisted that, ex post facto or not, the issue of the criminality of heads of state who initiate wars of aggression should be adjudicated in the proceeding. His argument prevailed, and in the final draft of the Charter, “the planning, preparation, initiation, or waging of a war of aggression” was declared to be a crime within the jurisdiction of the Tribunal.

In his final address to the Tribunal Justice Jackson recapitulated the Nazi preparations for, and the waging of, wars of aggression. He declared that “from the moment the Nazis seized power, they set about feverish but stealthy efforts, in defiance of the Versailles Treaty, to arm for war,” and he detailed the massive steps taken in building the weapons for war which, he declared, “were put to use…in a series of undeclared wars against nations with which Germany had non-aggression treaties, and in violation of repeated assurances of peaceful relations. On September 1, 1939, this re-armed Germany attacked Poland. The following April witnessed the invasion and occupation of Denmark and Norway, and May saw the overrunning of Belgium, the Netherlands and Luxembourg. Another spring found Yugoslavia and Greece under attack, and in June 1941, came the invasion of Soviet Russia. Then Japan, which Germany had embraced as a partner, struck without warning on December 7, 1941, and four days later Germany declared war on the United States.

“We need not trouble ourselves about the many abstract difficulties that can be conjured up about what constitutes aggression in doubtful cases… By all the canons of plain sense, these were unlawful wars of aggression in breach of treaties and in violation of assurances.”

Justice Jackson observed that these were the wars of aggression of the defendants in the dock. He concluded his closing speech with this analogy. “[These defendants] stand before the record of this trial as blood-stained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: ‘Say I slew them not.’ And the Queen replied, ‘Then say they were not slain.” But dead they are…’ If you were to say of these men that they are not guilty, it would be as true to say there has been no war, there are no slain, there has been no crime.” Upon the conclusion of the arguments of counsel, the case was submitted to the Tribunal for its opinion that was issued on October 1, 1946, precisely fifty-eight years ago to this very day. On the issue of aggressive war, the Tribunal declared: “The charges in the indictment that the defendants planned and waged aggressive war are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime, differing only from other crimes in that it contains within itself the accumulated evil of the whole.”

The Tribunal held that of the twenty-two defendants brought to trial before it, twelve were guilty of the crime of waging aggressive war. Rudolf Hess, successor designate to Hitler after Hermann Goering, was convicted of this crime alone. On the afternoon of October 1, 1946, the International Military Tribunal convened in final session. Every chair in the courtroom was occupied except the twenty-one chairs in the prisoners’ dock. The four judges and their alternates sat at the bench. Defense counsel faced them across the room. To the left were the four tables of the prosecution staffs. I sat at the American prosecution table. Behind us, members of the press and guests packed the visitors’ gallery. The defendants were to be brought into the courtroom, one at a time, to hear the sentences pronounced against them.

At ten minutes before three, the paneled door in the back of the prisoner’s dock slid silently open. The defendant Hermann Goering stepped out of the elevator that had brought him from the ground floor where the other defendants waited. Goering put on a set of headphones, which had been handed to him by one of the white-helmeted American guards. The president of the Tribunal began to speak. Goering signaled that he was unable to hear through the headphones, and there was an awkward delay while the technicians sought to correct the difficulty. A new set of headphones was produced, and once again Goering quietly awaited the words that were to decide his fate. “Defendant Hermann Wilhelm Goering, on the counts of the indictment on which you have been convicted, the International Military Tribunal sentences to you to death by hanging.”

The number two Nazi turned on his heel and passed through the paneled door to the elevator. The door closed, and there was a hum of whispered voices in the courtroom as those present awaited the arrival of the next defendant, Rudolph Hess. Hess, who had flown his Messerschmitt to England in a futile effort to persuade the British to abandon the fight with Germany, was sentenced to imprisonment for life. The other defendants appeared in turn and received their sentences. Of the twelve convicted of the crime of waging aggressive war, seven were sentenced to die by hanging.

I had been designated by Justice Jackson as his personal representative at the executions and was present in the Palace of Justice on the fateful night of October 15-16, 1946. Shortly before midnight the electrifying world was released that Goering had cheated the hangman by taking poison while lying ostensibly asleep upon the bed in his cell. Death thus came to Goering by his own hand, as it had come to Hitler, Himmler and Goebbels before him, even as the prison officer was walking to the cellblock to give formal notice of the executions to take place that night.

At eleven minutes past one o’clock in the morning of October 16, the white-faced former foreign minister, Joachim von Ribbentrop, stepped through the door into the execution chamber and aced the gallows on which he and the others condemned to die by the Tribunal were to be hanged that night. His hands were unmanacled and bound behind him with a leather thong. Ribbentrop walked to the foot of the thirteen steps leading to the gallows platform. He was asked to state his name, and answered, “Joachim von Ribbentrop.” Flanked by two guards and followed by the chaplain, he slowly mounted the stairs. On the platform he saw the hangman with the noose of thirteen coils and the hangman’s assistant with the black hood. He stood upon the trap, and his feet were bound with a webbed army belt. Asked to state any last words, he said: “God protect Germany. God have mercy on my soul. My last wish is that German unity be maintained, that understanding between East and West be realized, and there be peace for the world.” The trap was sprung and Ribbentrop died at 1:29. In the same way, each of the remaining defendants approached the scaffold and met the fate of common criminals.

In the early morning hours, two trucks carrying the German leaders hanged at Nuremberg left the prison compound of the Palace of Justice bound for a Munich crematory. There, during all of that day, the bodies were burned, one after the other. It was reported that in the evening the urns containing the ashes were taken away to be emptied in to River Isar. The dust of the dead was carried along in the currents of the stream to the Danube – thence to the sea.

Thus ended Hitler tyranny. The prophets of war had met their final destiny. They had sought to achieve greatness in history. But they inscribed their names in sand, and clean waters fell upon the beach and washed them out. They had intended to establish a new order for Europe by force of arms. But they built upon pillars of hate, and what they stood for could not stand.

Seven German leaders died in the prison of the Palace of Justice at Nuremberg in the early morning hours of August 16, 1946 for the crime of waging aggressive war. If Adolf Hitler and Heinrich Himmler had not committed suicide, the number of leading Nazis executed for this crime would have been not less than nine. Were these too many to answer for waging the most widespread and destructive war in history? World War I had taken nine million lives; World War II, three times as many. To willfully kill a single human being is a major crime under the laws of every nation. How many millions of human beings must die before the perpetrators of war are held accountable for the crime of waging aggressive war.

The urgency of establishing legal controls over post-Hitler tyrants became apparent when, on August 2, 1990, Iraqi military forces under the orders of the Iraqi dictator, Saddam Hussein, attacked Kuwait with the declared objective of incorporating it as the nineteenth province of Iraq. The war of aggression waged by Saddam was repulsed by a coalition led by the United States, with the approval of the Security Council of the United Nations. But no criminal charges were brought against Saddam because an international criminal court was not then in existence and the world community of nations was unwilling to try him in absentia before an ad hoc tribunal as Martin Bormann had been tried at Nuremberg, despite efforts of a committee of former Nuremberg prosecutors, which I organized, in adopting a resolution published in the Congressional Record, calling for his trial. Aggression was leaving the law behind.

The General Assembly had considered a proposal for an international criminal court when drafting the Convention on the Prevention and Punishment of the Crime of Genocide, but failed to approve it. On the day it adopted the genocide Convention, December 18, 1948, however, the General Assembly requested the International Law Commission to undertake a study of a permanent international criminal court. This was in addition to a directive of the General Assembly of November 21, 1947, requesting the International Law Commission to formulate the principles of international law, which it considered to have been promulgated by the Charter of the International Military Tribunal as construed by the Tribunal.

In August, 1951, a Committee on International Criminal Jurisdiction, composed of representatives of seventeen member states, submitted a draft statute to the General Assembly calling for the formation of a court to try persons accused of crimes under international law. Thus began a long period of international negotiations culminating in a General Assembly Resolution of December 17, 1996 calling for a diplomatic conference of plenipotentiaries to meet in 1998. The Conference convened in Rome of June 15, 1998 under the chairmanship of Phillip Kirsch of Canada. I was an NGO delegate representing the Committee of Former Nuremberg Prosecutors of which I was founder and coordinator. In opening the Conference, United Nations Secretary General Kofi Annan declared:

"After the defeat of Nazism and Fascism in 1945, the United Nations was set up in an effort to ensure that world war could never happen again. The victorious powers also set up international tribunals at Nuremberg and Tokyo, to judge the leaders who had ordered and carried out the worst atrocities. And they decided to prosecute the Nazi leaders not only for “war crimes” – waging wars and massacring people in occupied territories – but also for “crimes against humanity’ which included the slaughter of their own fellow citizens and others in the tragedy we now know as the Holocaust. Was it enough to make an example of a few arch-criminals in states that had waged aggressive war, and leave it at that? The General Assembly of the United Nations did not think so.”

On June 17, the United States Ambassador to the United Nations, Bill Richardson, addressed the conference. He endorsed the inclusion of serious violations of international humanitarian law – genocide, large-scale war crimes and crimes against humanity – but declared it premature “to attempt to define a crime of aggression for purposes of individual criminal responsibility.” This was after, and in spite of the fact, that the Allied Powers had found Nazi aggressors of World War II guilty of this crime and had assessed the penalty of death by hanging upon those convicted. Was this a contention that the leaders of Germany who had been hung at Nuremberg had been wrongly tried, convicted and sentenced, or an exculpation, in advance, of future leaders of the triumphant powers of World War II from trial for waging an aggressive war in the future, if that should happen?

Are the leaders of Great Britain, France, Russia, and the United States entitled to a status in international law denied to the leaders of Germany in World War II? Would the world be safer if they were free to commit, without fear of punishment by an International Criminal Court, the type of aggressions committed by the German aggressors who paid for their crimes with their lives?

With virtually unprecedented speed the statute for a permanent International Criminal Court gained and surpassed the sixty ratifications necessary for entry into force less than four years after the Rome conference of 1998. The crime of waging aggressive war is not included in the body of crimes within its jurisdiction, but will be considered at the review of the statute in 1909. At a special ratification ceremony held on April 11, 2002 at the United Nations headquarters in New York City, ten countries simultaneously deposited their instruments of ratification. The tribunal came into being on July 1, 2002, a historic landmark in the enforcement of the rule of law in international relations.

The Rome Treaty is the vision and product of the western world – the world that gave America its life, its beliefs, and its conscience. Canada, our neighbor to the north, of like heritage, traditions, and principles, ratified the treaty on July 7, 2000. The United Kingdom, from which our legal system largely derives, ratified the treaty on October 4, 2001. And Germany, whose leaders stood trial at Nuremberg in the great trial that gave meaning to the crime of aggressive war, ratified the treaty on December 11, 2000 upon the unanimous vote of the Bundestag, which I was privileged to witness.

Why has America, in this issue of law versus force, abandoned its traditional friends and allies and chosen the company of nations it has mistrusted in the past, such as Iran, Russia and China? Certainly it is not because it prefers the international policies of the latter states. It is rather that present American leadership believes that, as the world’s remaining superpower, the United States, at this moment in history, may serve its interests more effectively through a unilateral approach to conflict resolution in international affairs.

As one of his final acts of office President Clinton directed Ambassador David Scheffer, our chief negotiator at the Rome Conference, to sign the treaty on behalf of the United States. President Bush purported to rescind that signature in May 2002. This had the effect of excluding the United States from any further contact with the proponents of the Statute. It was an act of self-exclusion from one of the most significant instruments for international justice ever approved by the world community. The United States is no longer entitled, as would a signatory nation that had not yet ratified the treaty, to participate in negotiations for improvements in the Statute in the review conference of 2009. It was an act of futile defiance, intended to show the world, friend and foe alike, that the United States intends to stand against the Rome Statute for a permanent International Criminal Court.

A signed treaty need not be submitted by the President to the Senate for ratification. The treaty declaring and defining the crime of genocide was not approved by the Senate for over forty years after its enactment. It is now effective international law. The United States, reluctant to sign the Rome Statute, fails in its mission to serve world peace by aligning itself with other non-signers and divorcing itself from its traditional friends and allies.

In an address to the American Society of International Criminal Law, Justice Jackson offered this challenge: “If aggression is so wrong that international law calls upon our youth to die in remote parts of the world to stop it, these innocents have, I submit, a moral right to ask, ‘What will you do about those persons guilty of it?’” An effective system of justice in international relations must crown our municipal systems of law. Our scientists have not feared to make thermonuclear bombs that could destroy civilization. Certainly we should not fear to establish the principles of law that will permit civilization to survive. We must have the courage to find the way to make law supreme in international affairs, or we shall live forever in a world of force under a pall of fear.

As we all well know, in this hour of peril at the beginning of the Twenty-First Century, mankind has yet to learn how to live in peace, under law, on Planet Earth. The means and methods of war have become far more devastating and lethal than in any prior century. There is no turning back upon our destructive capabilities. The Hiroshima bomb of the twentieth century becomes the hydrogen bomb of the twenty-first century, becomes the incredible bomb of the twenty-second century, becomes the unimaginable bomb of the twenty-third century, and so on until we can devastate Europe – or America – with a single missile attack.

The Rome Statute was the climax of many actions, beginning with the drafting of the Charter of the International Military Tribunal at Nuremberg more than half a century before the Rome Conference. But even fifty years is just a moment in mankind’s search for security. Revision of the Rome Statute must be considered after a trial period of seven years. Seven hundred years may pass before we are able to eliminate aggressive war and terrorism in the world and establish a system of universal justice. Rome was the beginning. The end may never come. For like Rome, itself, the struggle for peace and justice in the world is eternal.

The world in which we live is subject to the overwhelming fact of force. Nature speaks to us in the idiom. The hurricane that rises from the sea and spreads havoc on the land; the earthquake that shatters the stillness of the day and brings buildings tumbling to the ground; the erupting volcano that send boiling lava over green fields and quiet homes, are forces which nature may unleash in angry mood. Against these forces mortals have yet to prove their greater power. No one has shown the way to still the voice of the might hurricane, or quell the mysterious shifts of underlying mountains, or stop the red lava in its flow to the sea. And yet, these forces of devastation do not possess the power to destroy humankind, which human beings have themselves devised. The atomic age burst in fury upon the world. We are caught in the peril of that age. Man-made forces can now destroy man. Perhaps civilization is in its decline – and barbarism, its due. That will depend upon whether force or law triumphs in tomorrow’s world.

Freedom and justice are the basic requisites for a world at peace, as for a nation of free men. Are they not likewise the spirit of the American dream? If we are true to the dream and manifest that spirit to the world, may we not go forward into this nuclear age confident that tyranny and terrorism shall not extend theirs way, nor war become their game – placing our faith in the cause of justice, the freedom of man, and the mercy of God?

If an H.G. Wells should write an Outline of History some thousand of years from now he would undoubtedly discuss prehistoric civilization in his first chapter. His second chapter would, I think, be called the Age of War. Succeeding chapters would then describe, in a period of enduring peace, the achievements that the free spirit of man can attain when his sole efforts are directed toward the search for truth and the betterment of life – rather than towards his self-destruction through war.

We have yet to close that second chapter of the history of the world. And mankind was never in greater peril. The lance is now a missile, the arrow is a rocket, and the cannon has become a nuclear bomb. Caesar’s legions conquered primitive tribes. Today’s armies can destroy the world.

It is in his context that the Rome Conference of 1998 assumes such great significance. It brought international law, its precepts and principles to a new standard of enforceability, and gave not only the hope, but the promise, of a future world in which criminal conduct is impermissible under international law. It marked the beginning of the end of the “Age of War.”

Nuremberg and Rome stand against the resignation of humankind to its self-debasement and its self-destruction. The achievements of that great trial and historic conference in elevating justice and law over inhumanity and war give promise for a better tomorrow. We may enter the atomic age determined that tyranny shall not extend its sway, nor war become its game – placing our faith in the cause of justice, in the freedom of man, and in the mercy of God.

The Greek philosopher, Heraclitus, wrote: “War is father and king of all; and some he made gods and some men, some slaves and some free.” But David sang: “The Lord will give me strength unto His people, the Lord will bless his people with Peace.” Psalm 29:11

Let there be peace in the hearts of men and assuredly there will be an end to wars among nations.