In November 1945, Robert H. Jackson stepped before the international tribunal at Nuremberg to open the prosecution of the Nazi leaders charged with war crimes. As America's advocate, as the prosecutor chosen to begin the case against these men, Robert H. Jackson was a pioneer bent on extending the frontiers of international law and justice. He had already played a major role in setting up the international court. For months in London he had met with representatives of Russia, France and Great Britain and had been the moving spirit in writing the four-power Agreement and Charter that established the court and governed its procedure. In spite of the different legal systems of the four negotiating countries, Jackson had found with satisfaction that there was much common ground and little significant differences in their concepts of justice.
Following is his statement on the War Trials Agreement; August 12, 1945.
There are some things I would like to say, particularly to the American people, about the agreement we have just signed.
For the first time, four of the most powerful nations have agreed not only upon the principles of liability for war crimes of persecution, but also upon the principle of individual responsibility for the crime of attacking the international peace.
Repeatedly, nations have united in abstract declarations that the launching of aggressive war is illegal. They have condemned it by treaty. But now we have the concrete application of these abstractions in a way which ought to make clear to the world that those who lead their nations into aggressive war face individual accountability for such acts.
The definitions under which we will try the Germans are general definitions. They impose liability upon war-making statesmen of all countries alike. If we can cultivate in the world the idea that aggressive war-making is the way to the prisoner's dock rather than the way to honors, we will have accomplished something toward making the peace more secure.
This, too, is the first time that four nations with such different legal systems have tried to knit their ideas of just criminal procedure into a cooperative trial. That task is far more difficult than those unfamiliar with the differences between continental and Anglo-American methods would expect. It has involved frank and critical examination by the representatives of each country of the other's methods of administering justice. Our discussions have been candid and open-minded.
The representatives of the United Kingdom have been headed by the Lord Chancellor and the Attorney General. The Soviet Republic has been represented by the Vice President of its Supreme Court and by one of the leading scholars of Soviet jurisprudence. The Provisional Government of France has sent a judge of its highest court and a professor most competent in its jurisprudence.
It would not be a happy forecast for the future harmony of the world if I could not agree with such representatives of the world's leading systems of administering justice on a common procedure for trial of war criminals.
Of course, one price of such international cooperation is mutual concession. Much to which American lawyers would be accustomed is missing in this instrument. I have not seen fit to insist that these prisoners have the benefit of all of the protections which our legal and constitutional system throws around defendants.
To the Russian and French jurist, our system seems unduly tender of defendants and to be loaded in favor of delay and in favor of the individual against the state. To us, their system seems summary and to load the procedure in favor of the state against the individual.
However, the continental system is the one the Germans themselves have employed and understand. It does not seem inappropriate that a special military commission for the trial of Europeans in Europe, for crimes committed in Europe, should follow rather largely although not entirely the European procedures. The essentials of a fair trial have been assured.
Another price of international cooperation is slow motion. No doubt Russia acting alone, or the United States, or any one country acting alone, could try these defendants in much shorter time than we can do it when we consult with each other and move along together. Our associates, for example, have a claim as good as ours to have the trial proceed in a language which they understand.
This requires a trial rendered into four languages-German, Russian, French, and English. This will be a dreary business, and there is no use trying to dodge that fact. It is a tedious prospect for me and for representatives of all the governments which will engage in it.
But I do not think the world will be poorer even if it takes a month or so, more or less, to try these men who now are prisoners and whose capacity for harm already has been overcome.
I do think the world would be infinitely poorer if we were to confess that the nations which now dominate the western world hold ideas of justice so irreconcilable that no common procedure could be devised or carried out.
The danger, so far as the moral judgment of the world is concerned, which will beset these trials is that they come to be regarded as merely political trials in which the victor wreaks vengeance upon the vanquished. However unfortunate it may be, there seems no way of doing anything about the crimes against the peace and against humanity except that the victors judge the vanquished.
Experience has taught that we can hardly expect them to try each other. The scale of their attack leaves no neutrals in the world. We must summon all that we have of dispassionate judgment to the task of patiently and fairly presenting the record of these evil deeds in these trials.
We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.
I therefore want to make clear to the American people that we have taken an important step forward in this instrument in fixing individual responsibility of war-mongering, among whatever peoples, as an international crime. We have taken another in recognizing an international accountability for persecutions, exterminations, and crimes against humanity when associated with attacks on the peace of the international order.
But I want to be equally clear that to make these advances fully effective through international trials is a task of difficulty and one which will require some public patience and some understanding of the wide gulf which separates the judicial systems of the nations which are trying to cooperate in the effort.
About Justice Jackson.
Source: United States Department of State Bulletin. August 12, 1945
Washington, DC : Government Printing Office, 1945
The Avalon Project at Yale Law School
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