Robert H. Jackson: Nuremberg's architect and advocate.

• Author: Meltzer, Bernard D.
• Position: Testimonial

It is a great privilege for me to join in this celebration of the life of Robert H. Jackson. I have this privilege because I served under Justice Jackson, the United States Chief Prosecutor for the International Military Tribunal at Nuremberg ("IMT" or "Tribunal"), in 1945-46. So much has been written about his service as chief prosecutor that I can attempt no more than to remind you of his approach to Nuremberg and his priorities for his work there. Since that work was addressed in part to posterity it is useful, from time to time, to recall Jackson's accomplishments and aspirations at that trial.

Justice Jackson considered his work in connection with Nuremberg the greatest accomplishment of his life. (1) His contributions there went far beyond those of a conventional prosecutor. He shaped what became known as the London Charter ("Charter"), agreed to by France, the Soviet Union, the United Kingdom and the United States on August 8, 1945. The Charter set forth the offenses over which the IMT would have jurisdiction and established the general procedural framework for the trial. (2) He also was involved in the selection of the American judges who were to be members of the Tribunal. (3) He energized the American Army's search for documentary and other relevant evidence. He helped pick the courtroom, which would be equipped for simultaneous translation in four languages during the trial. He had the responsibility for establishing a large scale law office in a city that Allied bombing had turned into heaps of rubble. Finally, he had the ultimate responsibility for the recruitment and organization of a staff to deal with the mass of evidence that eventually flowed to the prosecution. Jackson later said, amusedly: "This is the first case I have ever tried when I had first to persuade others that a court should be established, help negotiate its establishment, and when that was done, not only prepare my case but find myself a courtroom in which to try it." (4)

The context out of which the Nuremberg trials arose will help us understand Jackson's approach there. Before Germany's surrender, reliable evidence had shown: first, ruthless pre-war Nazi assaults on Jews, Christian churches, independent labor unions, opposition parties and dissidents in Germany, as the Nazis achieved and consolidated their power; second, deliberate and indisputable aggression against Czechoslovakia, Poland, most of the rest of Europe and then against the U.S.S.R. and the United States; third, concomitant to those wars, the systematic and massive pillaging, plundering and devastation of a continent, and the deportation of millions of slave laborers, all centrally organized; and fourth, deliberate mistreatment and execution of prisoners of war, and the murder of millions of Jews, Slavs, Gypsies and dissidents. The concentration camp and slaughter of Jews became the emblems of the Nazi regime. World War II has understandably been called "the largest single event (and the Holocaust the greatest crime (5)) in human history." (6)

Many of those horrors had, of course, been war crimes. As Peter Calvocoressi observed: "In the eyes of the law not all is fair in war, whatever may be the case in love." (7) For a long time, war crimes had resulted in individual punishment. But given the human misery resulting from Nazi aggressions and modern warfare in general, it was not sufficient, in Jackson's view, to file charges based solely on misconduct during the war; it was necessary also to condemn aggressive war, as a violation of international law, and to subject participating leaders of aggressor states to individual punishment.

Jackson achieved this objective with the inclusion of Article 6(a) of the Charter. That article provided jurisdiction for the Tribunal over Crimes against the Peace, "namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing." (8) This article was included despite initial objections from the French and Soviet representatives. The French had urged that Article 6(a) violated the general rule against retroactive legislation--an argument later adopted by the German defense team and many other critics of the Nuremberg trials. The French also "were puzzled by the [Anglo-American] concept of a common plan or conspiracy," which was foreign to their code-based jurisprudence. (9) The Soviets had sought to avert any general condemnation of aggressive war by restricting Crimes against the Peace to such offenses committed by the Nazis. Jackson, desiring to establish a general principle applicable in the future to all nations, including the Allies, succeeded in avoiding that limitation. (10)

More conventionally, Article 6(b) of the Charter dealt with "War Crimes," described as "violations of the laws or customs of war," including, for example, enslavement of civilians, pillage and plunder. (11) Article 6(c) addressed:

Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. (12) The indictment filed by the prosecutors generally followed the provisions of the Charter.

There was an explicit mention of conspiracy, or "common plan," in Article 6(a), but not in the other subsections of that article. The Charter rejected acts of state and superior orders as defenses, which, as Jackson observed, in combination, would have provided all the defendants with immunity. The Charter did provide, however, that superior orders could be pleaded in mitigation. It also authorized the Tribunal to declare organizations, such as the German Schutzstaffel (SS), illegal. About those...