Justice Jackson, Nuremberg and human rights litigation.

• Author: Hoffman, Paul L.
• Position: Wartime Security and Constitutional Liberty

I would like to thank Albany Law School for organizing this event. It is an honor for me to speak today alongside such distinguished panelists.

Justice Robert H. Jackson thought that his role as the United States chief prosecutor at Nuremberg was one of the most important roles that he played in his distinguished career. He was right about this and his impact was even greater than he thought.

I will speak about the impact of Justice Jackson and the Nuremberg legacy on efforts to end impunity internationally. One reason that I believe I was asked to be on this panel is because of my extensive background in Alien Tort Claims Act litigation. I will discuss the legacy of Nuremberg in human rights litigation in the United States. I would like to think of myself as someone walking in the shadows of Justice Jackson's work to end impunity, trying to hold individual human rights perpetrators accountable in the ways that we have available to us in the courts of the United States.

In preparing this address, I reread Justice Jackson's opening statement at Nuremberg, (1) and I plan to use that as the organizing principal of this talk. The eloquence and power of Jackson's opening statement contributed mightily, along with his conduct at the trial, to the incorporation of the basic Nuremberg principles into modern international law.

At the time of the opening statement, as acknowledged by Justice Jackson, the concept of victor's justice swirled around the undertaking and threatened the legitimacy of the Nuremberg trials. (2) The eloquence with which Justice Jackson advanced the position that individuals had to be held accountable for their actions contributed greatly to the acceptance of that principle by the international community. This acceptance is embodied in the 1946 United Nations General Assembly Resolution accepting the Nuremberg principles as fundamental norms of the international legal system. (3)

Perhaps more importantly, however, this notion has been accepted by both the international community and ordinary people as a basic principal of international justice--that all men need to be held accountable for their actions through the rule of law. As Justice Jackson said: "We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law." (4)

There is a long and well-known story about how efforts to institutionalize the Nuremberg principles ran aground on the shoals of Cold War politics after Nuremberg. However, the idea of individual responsibility and accountability, which is at the heart of the Nuremberg legacy, remained and emerged more strongly after the Cold War ended. In the 1990s, in the aftermath of the genocide in Bosnia, and then the genocide in Rwanda, the Nuremberg legacy and the idea of individual accountability led in large part to the creation of the ad-hoc tribunals for the former Yugoslavia (5) and Rwanda. (6) Further, in the language of the statutes of those tribunals, the importance and legacy of Nuremberg is clear. (7)

One of the things I was struck by when rereading Justice Jackson's opening statement at Nuremberg was his explanation of the difficulties facing those who were trying the Nazi war criminals--the practical difficulties. (8) These difficulties included the fact that there were no previously established tribunals, and, thus, having no precedent to follow, some of the rules had to be fashioned as they went along. (9)

With regard to the ad-hoc tribunals for Bosnia and Rwanda, I think that Justice Jackson would have been very sympathetic to the manner in which some of the early trials had to take place. For example, in the Tadic trial, the defense asked for the elements of the crime during the case and only received them at the end. (10) The ad-hoc tribunals could be criticized for that, but I think that what Justice Jackson said about Nuremberg also applies to the ad-hoc tribunals. It is possible, notwithstanding those practical difficulties, to establish trials that are fair and that are seen to be fair by the international community at large. Viewing the Tadic trial as a whole, and the trials which have occurred since, the ad-hoc tribunals should be seen as dispensing international justice of a high standard.

Justice Jackson's position was that when you are...