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 INDIVIDUAL RESPONSIBILITY
The Charter also recognizes individual responsibility on the part of
those who commit acts defined as crimes, or who incite others to do so,
or who join a common plan with other persons, groups or organizations to
bring about their commission. The Principle of individual responsibility
for piracy and brigandage, which have long been recognized as crimes
punishable under In-
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ternational Law, is old and well established. That is what illegal
warfare is. This principle of personal liability is a necessary as well
as logical one if International Law is to render real help to the
maintenance of peace. An International Law which operates only on states
can be enforced only by war because the most practicable method of
coercing a state is warfare. Those familiar with American history know
that one of the compelling reasons for adoption of our Constitution was
that the laws of the Confederation, which operated only on constituent
states, were found ineffective to maintain order among them. The only
answer to recalcitrance was impotence or war. Only sanctions which reach
individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive war is implemented by the
Charter with the principle of personal responsibility.
Of course, the idea that a state, any more than a corporation, commits
crimes is a fiction. Crimes always are committed only by persons. While
it is quite proper to employ the fiction of responsibility of a state or
corporation for the purpose of imposing a collective liability, it is
quite intolerable to let such a legalism become the basis of personal
immunity.
The Charter recognizes that one who has committed criminal acts may not
take refuge in superior orders nor in the doctrine that his crimes were
acts of states. These twin principles working together have heretofore
resulted in immunity for practically everyone concerned in the really
great crimes against peace and mankind. Those in lower ranks were
protected against liability by the orders of their superiors. The
superiors were protected because their orders were called acts of state.
Under the Charter, no defense based on either of these doctrines can be
entertained. Modern civilization puts unlimited weapons of destruction
in the hands of men. It cannot tolerate so vast an area of legal
irresponsibility.
Even the German Military Code provides that:
"If the execution of a military order in the course of duty violates the
criminal law, then the superior officer giving the order will bear the
sole responsibility therefor. However, the obeying subordinate will
share the punishment of the participant: (1) if he has exceeded the
order given to him, or (2) if it was within his knowledge that the order
of his superior officer concerned an act by which it was intended to
commit a civil or military crime or transgression." (Reichsgesetzblatt,
1926, No. 37, p. 278, Art. 47).
Of course, we do not argue that the circumstances under which
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one commits an act should be disregarded in judging its legal effect. A
conscripted private on a firing squad cannot expect to hold an inquest
on the validity of the execution. The Charter implies common sense
limits to liability just as it places common sense limits upon immunity.
But none of these men before you acted in minor parts. Each of them was
entrusted with broad discretion and exercised great power. Their
responsibility is correspondingly great and may not be shifted to that
fictional being, "the State", which can not be produced for trial, can
not testify, and can not be sentenced.
The Charter also recognized a vicarious liability, which responsibility
is recognized by most modern systems of law, for acts committed by
others in carrying out a common plan or conspiracy to which a defendant
has become a party. I need not discuss the familiar principles of such
liability. Every day in the courts of countries associated in this
prosecution, men are convicted for acts that they did not personally
commit but for which they were held responsible because of membership in
illegal combinations or plans or conspiracies.
A Teacher's Guide to the Holocaust
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