One of the Most Significant Tributes that Power Has Ever Paid to Reason

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On this day 75 years ago, Justice Robert Jackson (who never finished college and did only one year of law school), on leave from the US Supreme Court while he served as the Chief US Prosecutor at the International Military Tribunal, delivered his opening statement in courtroom 600 at the Nuremberg Palace of Justice:

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 civilization cannot tolerate their being ignored, because it cannot survive their being repeated. 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. 

This Tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 15 more, to utilize international law to meet the greatest menace of our times, aggressive war.

The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It is a cause of this magnitude that the United Nations will lay before Your Honors.

In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these miserable men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals, their fate is of little consequence to the world.

What makes this inquest significant is that those prisoners represent sinister influence that will lurk in the world long after their bodies have returned to dust. They are living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.

No charity can disguise the fact that the forces which these defendants represent, the forces that would advantage and delight in their acquittal, are the darkest and most sinister forces in society-dictatorship and oppression, malevolence and passion, militarism and lawlessness. By their fruits we best know them. Their acts have bathed the world in blood and set civilization back a century. They have subjected their European neighbors to every outrage and torture, every spoliation and deprivation that insolence, cruelty, and greed could inflict. They have brought the German people to the lowest pitch of wretchedness, from which they can entertain no hope of early deliverance. They have stirred hatreds and incited domestic violence on every continent. These are the things that stand in the dock shoulder to shoulder with these prisoners.

The real complaining party at your bar is Civilization. In all our countries it is still a struggling and imperfect thing. It does not plead that the United States, or any other country, has been blameless of the conditions which made the German people easy victims to the blandishments and intimidations of the Nazi conspirators.

But it points to the dreadful sequence of aggressions and crimes I have recited, it points to the weariness of flesh, the exhaustion of resources, and the destruction of all that was beautiful or useful in so much of the world, and to greater potentialities for destruction in the days to come. It is not necessary among the ruins of this ancient and beautiful city with untold members of its civilian inhabitants still buried in its rubble, to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have “leave to live by no man’s leave, underneath the law.”

 

For more on the drafting of Jackson’s speech, see this illuminating post by Prof. John Q. Barrett at The Jackson List.

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Aldo Zammit Borda says

November 23, 2020

Dear Marko,

Thanks for this post on the occasion of the 75th Anniversary of Nuremberg and your quotes from Justice Jackson’s opening statement.

Some years ago, I enjoyed reading Kirsten Sellars’ review of justice at Nuremberg (and Tokyo) in the EJIL (‘Imperfect Justice at Nuremberg and Tokyo’). It was particularly interesting to see how attitudes to the justice dispensed at Nuremberg have changed over the decades. In the two decades immediately following the trial, Sellars wrote, the verdict tended to be negative. Today the verdict tends to be more positive, and [many tend to incline] towards a less critical view. It is not unreasonable to suppose that some of our attitudes to more modern tribunals will likely undergo similar changes.

Jackson’s statement, from which you have quoted, continues to raise several issues, which though they have received scholarly attention, continue to pose challenges today. For instance, who are the “we” in Jackson’s statement “[t]he wrongs which we seek to condemn and punish […]” – as Immi Tallgren has asked in his chapter (“Who are ‘we’ in international criminal law?). And who are the Others? As David Cohen has noted in his preface to the Historical Origins of International Criminal Law, while the history of international criminal law normally begins in Nuremberg and Tokyo in mainstream textbooks, “there are a range of less explored time periods, geographical regions and institutional settings that demonstrate how communities, states and international organisations have sought to prosecute or deal with core international crimes.”

And if one continues the above quote from Jackson, “[…] have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.” Of course, this raises questions about whether some of the most brutal crimes were truly an affront to civilization, or whether they were crimes of civilization, as Bauman and others have argued.

Nevertheless, it is highly appropriate for us to pause and reflect on the many legacies of the Nuremberg Tribunal on its 75th anniversary and not least the fact that, as Teitel has argued in Transitional Justice, “[t]he paradigm of justice established at Nuremberg and its vocabulary of international law, despite its shortcomings, continue to frame the successor justice debate.”