Nuremberg Trials
Opening Address for the United States
Robert Jackson
This document was retrieved from the archives of Nizkor. Source: Nazi Conspiracy & Aggression, Volume I, Chapter VII, Office of the United States Chief Counsel for Prosecution of Axis Criminality, United States Government Printing Office, Washington, 1946.
THE LAW OF THE CASE
The end of the war and capture of these prisoners presented the
victorious Allies with the question whether there is any legal
responsibility on high-ranking men for acts which I have described. Must
such wrongs either be ignored or redressed in hot blood? Is there no
standard in the law for a deliberate and reasoned judgment on such
conduct?
The Charter of this Tribunal evidences a faith that the law is not only
to govern the conduct of little men, but that even rulers are, as Lord
Chief Justice Coke put it to King James, "under God and the law." The
United States believed that the law long has afforded standards by which
a juridical hearing could be conducted to make sure that we punish only
the right men and for the right reasons. Following the instructions of
the late President Roosevelt and the decision of the Yalta conference,
President Truman directed representatives of the United States to
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formulate a proposed International Agreement, which was submitted during
the San Francisco Conference to Foreign Ministers of the United Kingdom,
the Soviet Union, and the Provisional Government of France. With many
modifications, that proposal has become the Charter of this Tribunal.
But the Agreement which sets up the standards by which these prisoners
are to be judged does not express the views of the signatory nations
alone. Other nations with diverse but highly respected systems of
jurisprudence also have signified adherence to it. These are Belgium,
The Netherlands, Denmark, Norway, Czechoslovakia, Luxembourg, Poland,
Greece, Yugoslavia, Ethiopia, Australia, Haiti, Honduras, Panama, New
Zealand, Venezuela, and India. You judge, therefore, under an organic
act which represents the wisdom, the sense of justice, and the will of
twenty-one governments, representing an overwhelming majority of all
civilized people.
The Charter by which this Tribunal has its being embodies certain legal
concepts which are. inseparable from its jurisdiction and which must
govern its decision. These, as I have said, also are conditions attached
to the grant of any hearing to defendants. he validity of the provisions
of the Charter is conclusive upon us all whether we have accepted the
duty of judging or of prosecuting under it, as well as upon the
defendants, who can point to no other law which gives them a right to be
heard at all. My able and experienced colleagues believe, as do I, that
it will contribute to the expedition and clarity of this trial if I
expound briefly the application of the legal philosophy of the Charter
to the facts I have recited.
While this declaration of the law by the Charter is final, it may be
contended that the prisoners on trial are entitled to have it applied to
their conduct only most charitably if at all. It may be said that this
is new law, not authoritatively declared at the time they did the acts
it condemns, and that this declaration of the law has taken them by
surprise.
I cannot, of course, deny that these men are surprised that this is the
law; they really are surprised that there is any such thing is law.
These defendants did not rely on any law at all. Their program ignored
and defied all law. That this is so will appear from many acts and
statements, of which I cite but a few. In the Fuehrers speech to all
military commanders on November 23rd, 1939, he reminded them that at the
moment Germany had a pact with Russia, but declared, "Agreements are to
be kept only as long as they serve a certain purpose." Later on in the
same speech he announced, "A violation of the neutrality of Holland
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and Belgium will be of no importance." (789-PS). A Top Secret document,
entitled "Warfare as a Problem of Organization," dispatched by the Chief
of the High Command to all Commanders on April 19th, 1938, declared that
"the normal rules of war toward neutrals may be considered to apply on
the basis whether operation of rules will create greater advantages or
disadvantages for belligerents." (L- 211). And from the files of the
German Navy Staff, we have a "Memorandum on Intensified Naval War,"
dated October 15th, 1939, which begins by stating a desire to comply
with International Law. "However," it continues, "if decisive successes
are expected from any measure considered as a war necessity, it must be
carried through even if it is not in agreement with international law."
(UK-65). International Law, natural law, German law, any law at all was
to these men simply a propaganda device to be invoked when it helped and
to be ignored when it would condemn what they wanted to do. That men may
be protected in relying upon the law at the time they act is the reason
we find laws of retrospective operation unjust. But these men cannot
bring themselves within the reason of the rule which in some systems of
jurisprudence prohibits ex post facto laws. They cannot show that they e
ver relied upon International Law in any state or paid it the slightest
regard.
The Third Count of the Indictment is based on the definition of war
crimes contained in the Charter. I have outlined to you the systematic
course of conduct toward civilian populations and combat forces which
violates international conventions to which Germany was a party. Of the
criminal nature of these acts at least, the defendants had, as we shall
show, clear knowledge. Accordingly, they took pains to conceal their
violations. It will appear that the defendants Keitel and Jodl were
informed by official legal advisors that the orders to brand Russian
prisoners of war, to shackle British prisoners of war, and to execute
commando prisoners were clear violations of International Law.
Nevertheless, these orders were put into effect. The same is true of
orders issued for the assassination of General Giraud and General
Weygand, which failed to be executed only because of a ruse on the part
of Admiral Canaris, who was himself later executed for his part in the
plot to take Hitler's life on July 20th, 1944 (Affidavit A).
The Fourth Count of the Indictment is based on crimes against humanity.
Chief among these are mass killings of countless human beings in cold
blood. Does it take these men by surprise that murder is treated as a
crime?
The First and Second Counts of the Indictment add to these
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crimes the crime of plotting and waging wars of aggression and wars in
violation of nine treaties to which Germany was a party. There was a
time, in fact I think the time of the first World War, when it could not
have been said that war- inciting or war-making was a crime in law,
however reprehensible in morals.
Of course, it was under the law of all civilized peoples a crime for one
man with his bare knuckles to assault another. How did it come that
multiplying this crime by a million, and adding fire arms to bare
knuckles, made a legally innocent act? The doctrine was that one could
not be regarded as criminal for committing the usual violent acts in the
conduct of legitimate warfare. The age of imperialistic expansion during
the Eighteenth and Nineteenth Centuries added the foul doctrine,
contrary to the teachings of early Christian and International Law
scholars such as Grotius, that all wars are to be regarded as legitimate
wars. The sum of these two doctrines was to give war making a complete
immunity from accountability to law.
This was intolerable for an age that called itself civilized. Plain
people, with their earthly common sense, revolted at such fictions and
legalisms so contrary to ethical principles and demanded checks on war
immunity. Statesmen and international lawyers at first cautiously
responded by adopting rules of warfare designed to make the conduct of
war more civilized. The effort was to set legal limits to the violence
that could be done to civilian populations and to combatants as well.
The common sense of men after the First World War demanded, however,
that the law's condemnation of war reach deeper, and that the law
condemn not merely uncivilized ways of waging war, but also the waging
in any way of uncivilized wars of aggression. The world's statesmen
again went only as far as they were forced to go. Their efforts were
timid and cautious and often less explicit than we might have hoped. But
the 1920's did outlaw aggressive war.
The reestablishment of the principle that there are unjust wars and that
unjust wars are illegal is traceable in many steps. One of the most
significant is the Briand-Kellogg Pact of 1928, by which Germany, Italy,
and Japan, in common with practically all the nations of the world,
renounced war as an instrument of national policy, bound themselves to
seek the settlement of disputes only by pacific means, and condemned
recourse to war for the solution of international controversies. This
pact altered the legal status of a war of aggression. As Mr. Stimson,
the United States Secretary of State put it in 1932, such a war "is no
longer to be the source and subject of rights. It is no longer
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to be the principle around which the duties, the conduct, and the rights
of nations revolve. It is an illegal thing. *** ****** By that very-act,
we have made obsolete many legal precedents and have given the legal
profession the task of reexamining many of its codes and treaties."
The Geneva Protocol of 1924 for the Pacific Settlement of International
Disputes, signed by the representatives of forty-eight governments,
declared that "a war of aggression constitutes an international crime."
The Eighth Assembly of the League of Nations in 1927, on unanimous
resolution of the representatives of forty-eight member nations,
including Germany, declared that a war of aggression constitutes an
international crime. At the Sixth Pan-American Conference of 1928, the
twenty-one American Republics unanimously adopted a resolution stating
that "war of aggression constitutes an international crime against the
human species."
A failure of these Nazis to heed, or to understand the force and meaning
of this evolution in the legal thought of the world is not a defense or
a mitigation. If anything, it aggravates their offense and makes it the
more mandatory that the law they have flouted be vindicated by juridical
application to their lawless conduct. Indeed, by their own law had they
heeded any law these principles were binding on these defendants.
Article 4 of the Weimar Constitution provided that "The generally
accepted rules of international law are to be considered as binding
integral parts of the law of the German Reich." (2050-PS). Can there be
any doubt that the outlawry of aggressive war was one of the "generally
accepted rules of international law" in 1939?
Any resort to war--to any kind of a war--is a resort to means that
are inherently criminal. War inevitably is a course of killings,
assaults, deprivations of liberty, and destruction of property. An
honestly defensive war is of course, legal and saves those lawfully
conducting it from criminality. But inherently criminal acts cannot be
defended by showing that those who committed them were engaged in a war,
when war itself is illegal. The very minimum legal consequence of the
treaties making aggressive wars illegal is to strip those who incite or
wage them of every defense the law ever gave, and to leave war-makers
subject to judgment by the usually accepted principles of the law of
crimes.
But if it be thought that the Charter, whose declarations concededly
bind us all, does contain new law I still do not shrink from demanding
its strict application by this Tribunal. The rule of raw in the world,
flouted by the lawlessness incited by these
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defendants. had to be restored at the cost to my country of over a
million casualties, not to mention those of other nations. I cannot
subscribe to the perverted reasoning that society may advance and
strengthen the rule of law by the expenditure of morally innocent lives
but that progress in the law may never be made at the price of morally
guilty lives
It is true, of course, that we have no judicial precedent for the
Charter. But International Law is more than a scholarly collection of
abstract and immutable principles. It is an outgrowth of treaties and
agreements between nations and of accepted customs. Yet every custom has
its origin in some single act, and every agreement has to be initiated
by the action of some state. Unless we are prepared to abandon every
principle of growth for International Law, we cannot deny that our own
day has the right to institute customs and to conclude agreements that
will themselves become sources of a newer and strengthened International
Law. International Law is not capable of development by the normal
processes of legislation for there is no continuing international legislative authority. Innovations and revisions in International Law are
brought about by the action of governments designed to meet a change in
circumstances. It grows, as did the Common Law, through decisions
reached from time to time in adapting settled principles to new
situations. The fact is that when the law evolves by the case method, as
did the Common Law and as International Law must do if it is to advance
at all, it advances at the expense of those who wrongly guessed he law
and learned too late their error. The law, so far as International Law
can be decreed, had been clearly pronounced when these acts took place.
Hence, I am not disturbed by the lack of judicial precedent for the
inquiry we propose to conduct.
The events I have earlier recited clearly fall within the standards of
crimes, set out in the Charter, whose perpetrators this Tribunal is
convened to judge and punish fittingly. The standards for war crimes and
crimes against humanity are too familiar to need comment. There are,
however, certain novel problems in applying other precepts of the
Charter which I should call to your attention.
A Teacher's Guide to the Holocaust
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College of Education, University of South Florida © 2005.