Robert Jackson's transcendent influence over today's world.

• Author: King, Jr., Henry T.
• Position: Testimonial

Today we are seeing the birth of a new international institution that will deal with problems that have plagued mankind since the beginning of recorded human history. The institution is the International Criminal Court ("ICC"), whose birth may be recorded as March 11, 2003, when the judges for the new Court were sworn in. I was there for the swearing in ceremony, which was carried out in good taste and with a sense of historic importance.

As I watched the ceremony unfold I thought of the man who started it all: Robert Jackson. These days Robert Jackson is an unsung hero of history, but I believe that as historians dig deeper into the throes of history, his preeminence in the development and implementation of war crimes concepts will unfold. In this regard, I have an advantage because I was there at Nuremberg and a party to the Nuremberg proceedings. I was an eyewitness and supporting participant in the most important trial in history before the International Military Tribunal ("IMT") and the subsequent proceedings which followed it.

Jackson's concepts of war crimes are set forth in his report of June 6, 1945 to President Harry S. Truman where he recorded his views on what should be the central charges in a war crimes trial of the top Nazis. These crimes included Crimes against the Peace (aggressive war), War Crimes (crimes against the laws of war) and Crimes against Humanity (crimes against individuals for racial, religious or political reasons). Jackson's report was followed by the London Charter of August 8, 1945, (1) in which the three other Nuremberg plaintiff nauons agreed with Jackson's war crimes concepts. They also agreed with his Nuremberg trial approach, which implemented his concepts through joint action against the top Nazi defendants.

Jackson's concepts of war crimes were the progenitors of crimes set forth in the Rome Statute, which will be the basis for the operation of the International Criminal Court's jurisdiction over genocide, crimes against humanity and war crimes. These crimes are all derived from the Nuremberg precedent. The same, I believe, will also be said of aggression when it is eventually defined and implemented under the Rome Statute.

It is indeed a matter of supreme irony that the United States of America, which led the way in the Nuremberg proceedings through Jackson's leadership, has turned its back on Jackson by renouncing, and making every effort to sabotage, the introduction of the International Criminal Court into today's world. The United States not only "unsigned" its signature to the Rome Statute, (2) an event unparalleled in the long history of diplomacy, but also it suspended "military assistance to 35 countries ... [which support the Court, when] they refused to pledge to give American citizens immunity before the International Criminal Court." (3) Jackson, in his opening statement at Nuremberg, said "[t]o pass these defendants a poisoned chalice is to put it to our own lips as well." (4) In the Rome Statute negotiations, the United States took the position that no American should be subject to trial by the Court without prior concurrence by America. Obviously, had other nauons taken this position, there would indeed have been no Court. I believe the U.S. approach was designed to kill the Court even before its birth.

The challenges faced by Jackson in bringing Nuremberg to reality were monumental--but for perspective's sake they need to be emphasized today. Such influential figures as Winston Churchill and Secretary of the Treasury Henry Morgenthau favored summary executions of the top Nazis. Secretary of State Cordell Hull endorsed "drum head" courts-martial designed only to convict and execute defendants. These approaches might have had some therapeutic value, but they would have added nothing to developing a rule of law for the world. Following this approach would have paralleled the Nazi policy for dealing with enemies of the Nazi regime. Here we should bear in mind that three of the defendants at Nuremberg were acquitted of the charges levied against them. Convicting the innocent through a summary execution approach could have scarred the memory of the Allies' achievements in World War II.

In the negotiations preceding the London Charter, Jackson and his U.S.S.R. counterpart, negotiator General Nikitchenko, squared off on the approach to be followed in the trial of the Nazis. Jackson favored a presumption of innocence, which meant that the Nazis were to be freed if there were insufficient evidence to rebut this presumption, while Nikitchenko pushed hard for a presumption of guilt, mainly concerned with the degree of punishment to be meted out. An exchange of June 29, 1945 between Jackson and Nikitchenko highlights the differences in their approaches. At one point Nikitchenko stated:

We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea [(Yalta)] declarations by the heads of governments, and those declarations both declare to carry out immediately just punishment for the offenses which have been committed. (5) To which Justice Jackson replied later in the session:

These declarations are an accusation and not a conviction. That requires a judicial finding. Now we could not be parties to setting up a mere formal judicial body to ratify a political decision to convict. The judges will have to inquire into the evidence and reach an independent decision.... I have no sympathy with these men, but, if we are going to have a trial, then it must be an actual trial. (6) Negotiations continued at length on this issue. In the end, Justice Jackson told Nikitchenko that there would be no U.S. participation in the trial if the Soviet approach were followed. United States leverage on this matter was increased because the United States held most of the prospective defendants in custody. Nikitchenko eventually yielded and the presumption of innocence was the order of the day at Nuremberg. Ironically, Jackson's approach resulted in the acquittal of three defendants, including Hjalmar Schacht and Franz yon Papen, whose acquittals upset Jackson greatly.

In preparing for the trial, Jackson took the position that the prosecutor's primary thrust in the trial should be reliance on documentary evidence from the Nazi's own files. He felt that such evidence would be largely irrefutable and that it would enhance the credibility of the outcome. But this precipitated a conflict with General William J. Donovan, one of his projected top subordinates. General Donovan was chief of America's principal wartime intelligence agency--the Office of Strategic Services (OSS). Donovan's view was that the trial required live witnesses, in addition to the captured documents on which Jackson intended to rely. Jackson, however, informed Donovan in a memorandum that because he was convinced that the documentary case was so strong, witnesses would be used, at most, only incidentally in the primary prosecution case. Shortly after receipt of Jackson's memorandum, Donovan left Nuremberg never to return.

My own view of this conflict, as one...