On 26 April 1945 a fifty-three-year-old Associate Justice of the United States Supreme Court named Robert Houghwout Jackson took a phone call at his chambers in Washington from President Harry Truman. The call lasted four minutes. The new president was offering him the job of Chief of Counsel for the United States in the prosecution of the European Axis war criminals, an appointment that did not yet exist in any law and a court that did not yet exist in any treaty. Jackson asked for an hour to consider, called his wife, and accepted before the hour was out. He left the Supreme Court bench, took up an army office at the United States Group Control Council in London, and within ten weeks had drafted, with British, French and Soviet counterparts, the Charter under which the International Military Tribunal would proceed. Within seven months he was on his feet in Courtroom 600 of the Justizpalast in Nuremberg delivering an opening statement that would define the moral architecture of postwar international law.
The choice of Jackson had not been obvious. He had no experience of war crimes prosecutions, none in international law, no previous work outside the United States. What he had was a particular American legal style, plainspoken, document-driven, sceptical of theatre, and the conviction that the trial had to be a trial, not a piece of stage management. The decision he made in the first weeks of his appointment, against pressure from American military lawyers and from some of his own staff, was to base the prosecution case principally on captured German documents rather than on witness testimony. Three trainloads of records were shipped from caches in salt mines and castles across the American zone to a building in Nuremberg known as the Document Centre. The figure of three thousand tons of paper has been quoted often. Jackson personally read substantial selections.
The opening statement
The statement Jackson delivered on 21 November 1945 ran for two hours and twenty minutes. He did not raise his voice. The third paragraph contained the lines that have been quoted in every subsequent international war crimes proceeding:
The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilisation cannot tolerate their being ignored, because it cannot survive their being repeated.
A few sentences later, addressing the question that the defence had begun to press in pre-trial filings:
That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.
Halfway through the statement Jackson turned directly to the defendants and acknowledged what every commentator since has said the trial could not avoid:
If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.
The statement was published in pamphlet form within weeks. It has not been out of print since. Justice Felix Frankfurter, Jackson’s colleague on the Supreme Court, wrote to him from Washington that he had read it three times and that it would, he believed, outlive everyone present in the courtroom. He was right.
The Göring cross-examination
Jackson’s most contested moment as a courtroom advocate came in March 1946, when he cross-examined Hermann Göring over three days. Göring was the senior surviving figure of the Nazi regime and the dominant personality in the dock. He had spent the months of his imprisonment building himself back up to fighting weight on a regime of vitamins, exercise and the deliberate cultivation of fellow defendants. Jackson opened the cross-examination on 18 March 1946 with documentary questions on the Nazi seizure of power and the persecution of political opponents. Göring answered at length, defending the regime and steering the answers onto ground he wanted to occupy.
Jackson’s first major exchange, on the morning of 18 March, set the pattern. He read out a 1934 document in which Göring had admitted personal responsibility for the killings carried out during the Night of the Long Knives. Göring acknowledged the document and then, asked whether he regretted the killings, replied:
If a state is fighting for its existence, then morality recedes into the background. There is in such an emergency only one thing which is decisive: that the state remains in existence.
Jackson read out a 1935 document in which Göring had ordered the destruction of one of his own internal Gestapo files. Asked why, Göring replied:
This document I would also have destroyed if I had known you were going to find it.
The courtroom laughed. Jackson, accustomed to American courtrooms in which judges control the flow of testimony, struggled to interrupt and to keep Göring on a tight rein. Sir Geoffrey Lawrence on the bench gave the defendants more latitude than American practice would have allowed. By the second day the press was reporting that Göring had got the better of the exchange. Drew Pearson’s syndicated column called it “Göring’s day at Nuremberg” on the morning of 20 March.
The British prosecutor Sir David Maxwell Fyfe took up the cross-examination on 20 March and dismantled Göring in two hours. The contrast was instructive. Maxwell Fyfe, a former Conservative attorney general, was a master of the British forensic style; he led Göring through the pre-war record one short question at a time, refused to be drawn on broader subjects, and produced the documents that contradicted each evasion as it was uttered. Jackson, watching from the prosecution table, took the lesson without apparent embarrassment. He had walked into a different courtroom culture from the one he had spent his career in. He adjusted. His subsequent court appearances were tighter and more effective.
The closing
The trial closed on 31 August 1946 with Jackson’s summation. The summation drew the case together around the Charter’s four counts and made the explicit argument the prosecution had been advancing since November: that the men in the dock were not being tried for losing a war but for the crimes their state had committed, and that those crimes, on the evidence of their own documents, were of an order that international law had not previously been required to address. Jackson’s closing line, addressed to the bench and to the public record:
If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.
The judgment of 30 September and 1 October 1946 substantially adopted Jackson’s framework. Twelve defendants were sentenced to death, three acquitted, the rest to terms ranging from ten years to life. The acquittals, which Jackson had not sought to prevent and had defended publicly afterwards, were the proof that the trial had been a trial.
Afterwards
Jackson returned to the Supreme Court in October 1946. He served on the bench until his death from a heart attack at his desk in Washington on 9 October 1954. He was sixty-two. His service at Nuremberg cost him the chief justiceship of the United States; Truman, having committed Jackson to the Nuremberg work, had to fill the vacancy left by Chief Justice Stone’s death in 1946 from elsewhere on the Court. Jackson never publicly complained.
The Charter he had drafted at London in August 1945 became the foundation of the Genocide Convention of 1948, the Geneva Conventions of 1949, the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Rome Statute of the International Criminal Court. His opening statement at Nuremberg has been read aloud, quoted and cited in every major international criminal proceeding since. It is one of the small number of pieces of postwar legal writing that has not aged.
His private papers, deposited at the Library of Congress and at his own Jamestown, New York foundation, suggest that the eleven months at Nuremberg were the work he was proudest of. He never wrote a memoir of the trial, and refused several offers to do so. His position was that the transcripts spoke for themselves and that anything he could add would be a distraction. The transcripts run to forty-two volumes. They contain his work, in the documents he selected, the questions he asked and the closings he delivered. Eighty years on they still do.
See also
Sources
- International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal, 42 vols, Nuremberg, 1947 to 1949 (the Blue Series), particularly vol II for opening statement and vol IX for Göring cross-examination
- Robert H. Jackson, The Nürnberg Case, Knopf, 1947
- John Q. Barrett, ed, That Man: An Insider’s Portrait of Franklin D. Roosevelt by Robert H. Jackson, Oxford University Press, 2003
- Eugene C. Gerhart, America’s Advocate: Robert H. Jackson, Bobbs-Merrill, 1958
- Telford Taylor, The Anatomy of the Nuremberg Trials, Knopf, 1992
- Joseph E. Persico, Nuremberg: Infamy on Trial, Viking, 1994