Seventy years ago, my fellow countryman, Justice Robert H. Jackson stood in this courtroom and gave the opening statement for the Prosecution at the trial of the major German defendants before the International Military Tribunal at Nuremberg. According to Telford Taylor, a member of his team, Jackson had been nervous and irritable for weeks prior to the opening of the trial, which had almost been delayed, over his objections, several times. But once he walked to the podium and began to speak, his voice was clear, and his commitment was unshakeable--no one listening that day or reading his statement afterwards could doubt his passion, eloquence and firm conviction that his role was to bring the rule of law to bear on the question of what to do with the twenty-two captured Germans in the dock that day. Jackson understood that this was no ordinary trial and knew that the world was watching and would judge him harshly if he failed. He did not. Jackson, like the other prosecutors that presented evidence to the Tribunal over the next ten months, rose to the occasion. His Opening Statement, in particular, and its impact over the decades, has been forever etched in the hearts and minds of scholars, activists and students of Nuremberg.
Jackson noted that he had the "privilege" to open the first trial in history for crimes against the peace of the world, a privilege that imposed upon him a grave responsibility. Ladies and gentlemen, your Excellencies, distinguished academics and dear friends and colleagues, I feel similarly privileged to stand before you today at the opening of this important meeting of the International Nuremberg Principles Academy--on the occasion of the 70th anniversary of that famous trial--and address you regarding a subject that has been close to my heart and academic work for the better part of two decades. While these remarks are in no way as consequential as Jackson's Opening Statement was seventy years ago, I feel a similar responsibility. What is there to be said about an event and its consequences that has not already been the subject of distinguished books, films, articles and conferences? What can I, as an American observer and commentator, bring to your important discussions today on the Nuremberg legacy?
Having been charged with the task, I, too, hope to rise to the occasion. I will address only briefly the Nuremberg trials themselves, and then quickly turn to their legacy--how the extraordinary events of 1945 and 1946 have shaped the world since that time. I would then like to turn our attention to aspects of the Nuremberg legacy that remain either unfinished or have tarnished, rather than brightened, with the passage of time, and conclude with some final reflections on what can be done to reinforce the legacy so that we do not find ourselves, seventy years hence, "breathless and ashamed" as they were in 1945, (1) at the devastation wrought by a world at war, but enjoying the benefits and prosperity that have resulted from our efforts to promote the gradual and unceasing construction of a world at peace.
I. THE NUREMBERG TRIAL
The difficulties that Jackson faced in 1945 remain with us, to some extent, today. Indeed, rereading the biographies from that period, (2) I am struck by how many of the same problems have been present at the ad hoc tribunals and the International Criminal Court. Plus ca change, plus ca reste pareil. Jackson, of course, was keenly aware of the deficiencies, both legal and practical, that faced the prosecution team at Nuremberg. A country lawyer without formal legal training, he had risen to the highest judicial office in the United States as a result of his keen mind and extraordinary rhetorical skill. (3) He knew that the case was a novel one, that the precedent for indicting and trying the accused was virtually nonexistent, and that there were legitimacy questions raised by the specter of having German accused tried to a bench of Allied jurists by a team of Allied prosecutors. Rather than hide from the weaknesses of his case, however, he met them head on.
As Jackson observed in his Opening Statement, the case was complex, involving "the developments of a decade, covering a whole continent, and involving a score of nations, countless individuals, and innumerable events." (4) Eight months earlier, the courtroom had been an enemy fortress and the accused and the documents were in enemy hands. There was no codification of the relevant law, no procedures had been established, no tribunal was in existence, and no prosecuting staff had been assembled. Further, nearly all the accused were at large and the four prosecuting powers had not yet joined in common cause to try them. What Jackson did not reveal publicly was that the four prosecutorial teams did not work well together. It was an arduous and difficult diplomatic, as well as legal, process. The negotiators and prosecutors wrangled over the differences between common law and civil law procedure and struggled with questions of substantive law and procedure: with the Anglo-American concept of conspiracy; with the impossibility of getting documents translated in time for all the judges and defense counsel to receive copies; with the particularity requirement of the indictment. Jackson had trouble with his staff, many of whom departed either due to conflict with him or for personal reasons. Telford Taylor described the staff as being plagued by tensions and petty jealousies, living in an expatriate bubble, with little interaction between occupiers and occupied. (5) The Russians were not permitted to fraternize with the other teams, (6) and although Francois de Menthon opened the French case with a stirring and oft-quoted statement, he returned to France shortly thereafter, leaving Champetier de Ribes in charge for the remainder of the trial. (7) Finally, many of Jackson's American compatriots were scornful about the utility and enforceability of international law, arguing that the trials would either make matters worse or, at best, be a useless act.
The international political environment was challenging for the Tribunal as well. Just two days prior to the signing of the London Agreement and Charter, the Enola Gay was winging its way through the sky en route to dropping an atomic bomb on Hiroshima, and one day after the Charter was signed, a second bomb was dropped on Nagasaki, (8) killing tens of thousands of civilians. Because the four Allied powers had a vested interest in not pursuing charges that would show them in a bad light, they had not included any charges relating to aerial bombardment, (9) and the Russians insisted on accusing the Germans of the Katyn Forest massacre (which had actually been perpetrated by Russian forces). (10) The press covered the trials, but found the documentary evidence boring. (11) Jackson bemoaned the fact that no real arrangements had been made so Germans could attend and learn about the trial. (12) On March 5, 1946, as the Russians were presenting their evidence at Nuremberg, Winston Churchill was in Fulton, Missouri giving his famous Iron Curtain Speech ushering in the Cold War era. (13)
Jackson understood these difficult political realities, but he defended the trials, writing later "[w]hat we should have done with these men is a question always evaded by those who find fault with what we did do." (14) He and Roosevelt shared the view that the thirst for vengeance, which had been amply demonstrated in the French purge of thousands of former collaborators, could, if applied to the Germans, lead to doubt about and denial of the crimes and a myth of martyrdom. Instead, they argued, there must be public proof of Nazi crimes, and the accused must be given the chance to defend themselves. (15)
After ten months of proceedings, the trial was over and the judges retired to deliberate. The judgment they rendered on October 1, 1946 was impressive. (16) Indeed, many of its pronouncements form part of the modern canon of international law: that crimes are "committed by men, not by abstract entities"; (17) that the law of the Charter was both an "expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law"; (18) that the establishment of the International Military Tribunal by the Allied powers was lawful because they had only "done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law." (19)
In terms of substantive law, the International Military Tribunal articulated its understanding of the law it was asked to apply, famously holding:
War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. (20)
Although this statement arguably conflates war crimes and crimes against peace, its essence--a juridical condemnation of the evils of war--is undeniably powerful. In other respects, the judgment was perhaps less progressive, particularly regarding the crimes against humanity counts, which were limited to acts committed against civilians after the onset of the war, in spite of language to the contrary in the Charter. (21)
Yet even with these arguable deficiencies, seventy years later we still study, discuss, and even revere the Nuremberg trial. (22) For separated from its all too human flaws, the decision to hold a trial, and the accomplishment of the task to a high level of professionalism and distinction, represented an extraordinary achievement. It may have been an American "show" (23) in terms of the material support and size of the various participating prosecutorial teams; but it built upon decades of European thought...
