Robert H. Jackson: Nuremberg's Architect and Advocate

Abstract

It is a great privilege for me to join in this celebration of life of Robert H. Jackson. I have this privilege because I served under Justice Jackson, United States Chief Prosecutor for 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 greatest accomplishment of his life. (1) His contributions there went far beyond those of a conventional prosecutor. He shaped what became known as London Charter (Charter), agreed to by France, Soviet Union, United Kingdom and United States on August 8, 1945. The Charter set forth offenses over which IMT would have jurisdiction and established general procedural framework for trial. (2) He also was involved in selection of American judges who were to be members of Tribunal. (3) He energized American Army's search for documentary and other relevant evidence. He helped pick courtroom, which would be equipped for simultaneous translation in four languages during trial. He had responsibility for establishing a large scale law office in a city that Allied bombing had turned into heaps of rubble. Finally, he had ultimate responsibility for recruitment and organization of a staff to deal with mass of evidence that eventually flowed to prosecution. Jackson later said, amusedly: This is 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 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 Nazis achieved and consolidated their power; second, deliberate and indisputable aggression against Czechoslovakia, Poland, most of rest of Europe and then against U.S.S.R. and United States; third, concomitant to those wars, systematic and massive pillaging, plundering and devastation of a continent, and deportation of millions of slave laborers, all centrally organized; and fourth, deliberate mistreatment and execution of prisoners of war, and murder of millions of Jews, Slavs, Gypsies and dissidents. The concentration camp and slaughter of Jews became emblems of Nazi regime. World War II has understandably been called the largest single event (and Holocaust greatest crime (5)) in human history. (6) Many of those horrors had, of course, been war crimes. As Peter Calvocoressi observed: In eyes of law not all is fair in war, whatever may be case in love. (7) For a long time, war crimes had resulted in individual punishment. But given 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 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 inclusion of Article 6(a) of Charter. That article provided jurisdiction for Tribunal over Crimes against 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 accomplishment of any of foregoing. …