[FEBRUARY 13, 1892–OCTOBER 9, 1954]
United States Chief Prosecutor at the Nuremberg Trial
Robert H. Jackson was born on a small farm in Pennsylvania. Although his legal education consisted of only one year at Albany Law School in upstate New York, Jackson's legal career included key positions in President Franklin D. Roosevelt's administration. In 1934 he was nominated as general counsel of the Bureau of International Revenue. In 1936 he became assistant attorney general in charge of tax matters and in 1938 solicitor general; in 1940 he was promoted to attorney general. In 1941 Jackson was appointed to the United States Supreme Court.
On May 2, 1945, President Harry S. Truman named Jackson as the Chief of Counsel for the United States in prosecuting the principal Axis war criminals. Jackson's primary views on the charges to be leveled against the defendants were presented to Truman in a report that the White House released on June 6, 1945. They were essentially based on a plan the War Department had prepared in the fall of 1944. Jackson outlined the following three categories of crimes that the defendants would be asked to account for:
- Atrocities and offenses against persons or property constituting violations of international law, including the laws, rules, and customs of land and naval warfare;
- Atrocities and offenses, including atrocities and persecutions on racial or religious grounds, committed since 1933;
- Invasions of other countries and initiation of wars of aggression in violation of international law or treaties. (The Nuremberg Case, 1971, 13)
The latter charge Jackson regarded as central to the entire conception of the trial. "It is high time," he wrote to the president, "that we act on the juridical principle that aggressive war-making is illegal and criminal" (The Nuremberg Case, 1971, p. 15). Jackson also insisted on proving that the Nazis had planned to conquer all of Europe and to dominate the world. "Our case against the major defendants is concerned with the Nazi master plan, not with individual barbarities and perversions which occurred independently of any central plan." Jackson also stressed the need "to establish the criminal character of several voluntary organizations which have played a cruel and controlling part in subjugating first the German people and then their neighbors." If in the main trial an organization was found to be criminal, he continued, "the second stage will be to identify and try before military tribunals individual members not already personally convicted in the principal case." Jackson knew that this plan introduced some far-reaching legal innovations, but he believed that "we must not permit it to be complicated or obscured by sterile legalisms developed in the age of imperialism to make war respectable." Jackson's first challenge, however, was to convince British, Soviet, and French jurists who met shortly after the end of the war in London for the International Conference on Military Trials, to accept the U.S. plan. Formulating a joint Allied policy was a complicated undertaking because of the need to overcome differences between the common law (in the United States and United Kingdom) and the continental legal systems (in France and the Soviet Union). The negotiations began on June 26, 1945, and dragged on for almost six weeks; they were characterized by tension and distrust, especially between Jackson and his Soviet counterpart, Major General Ion T. Nikitchenko.
Jackson, who had no experience in negotiating with the Soviets, wrongly believed that the prospects for a quick agreement on protocol were good. Instead, he had to face attacks on the central pillars of the U.S. plan. Annoyed by the prolonged nature of the negotiations, Jackson did not regard cooperation with the Soviets as imperative, and even contemplated the option that each nation would try its own prisoners by its own procedures, applying the international agreement as to definition of crimes. However, he was compelled to regard such a course as only a last resort as he was well aware of the importance Washington attributed at the time to cooperation with the Soviets in general.
The most controversial aspect of the U.S. proposal was the issue of prosecuting conspiracy. Although the British sided on this innovation with the Americans, the Soviets and French firmly attacked it, arguing that the focus should be on the criminal acts themselves. Jackson, however, was a strong supporter of the conspiracy theory, which he saw as designed to tie the whole trial together. Both the Soviets and French also had difficulties with the U.S. concept of indicting several principal Nazi organizations. While regarding them as criminal groups, they believed that organizations could not be tried. They were further concerned about convicting individuals only by association. Soviet and French jurists also challenged Jackson's insistence on indicting aggressive war as a crime. A different kind of dispute arose over the site of the trial when the Soviets insisted on Berlin, situated in the Soviet zone of occupation. The agreement that was eventually signed on August 8, 1945, by the heads of the four delegations "for the prosecution and punishment of the major war criminals of the European Axis" and outlining the Charter of the International Military Tribunal may be regarded as a success for Jackson, not only because it created a legal framework for the trial and defined international crimes, but also because it had the U.S. plan at its core and the trial was to be conducted at Nuremberg, in the American zone of occupation.
The process of preparing the American team for the trial exposed some of Jackson's weaknesses, especially that of being a poor administrator. However, when he rose on November 21, 1945, to deliver the opening statement for the prosecution, Jackson's rhetorical skills as well as his passion, determination, and vision gave his speech the legal, public, moral, and historical importance the event required. A large part of his speech was devoted to proving the conspiracy charge. He stated,
It is my purpose to open the case, particularly under Count One of the Indictment, and to deal with the Common Plan or conspiracy to achieve ends possible only by resort to Crimes against Peace, War Crimes, and Crimes against Humanity. My emphasis will not be on individual barbarities and perversions which may have occurred independently of any central plan. . . . Nor will I now dwell on the activity of individual defendants except as it may contribute to exposition of the common plan (The Nuremberg Case, 1971, p. 37).
Well aware of the historical importance of the trial, Jackson predicted that "the record on which we judge these defendants today is the record on which history will judge us tomorrow." Recognizing possible criticism that the trial could be described as "victor's justice," Jackson explained:
Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves.
The defendants, Jackson stressed, "do have a fair opportunity to defend themselves—a favor which these men, when in power, rarely extended to their fellow countrymen."
Jackson expected the Nuremberg Trial to serve as a landmark in future international relations and international law, particularly as a deterrent force on statesmen. He was realistic enough to recognize the weakness of juridical action to prevent future wars, but still believed that "the ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law." The trial, Jackson told the judges, "is part of the great effort to make the peace more secure." His concern with the future no less than with the conviction of the twenty-two defendants and his expectation that the trial would be a milestone for coming generations also came to the fore in his closing address on July 26, 1946: "If we cannot eliminate the causes and prevent the repetition of these barbaric events, it is not an irresponsible prophecy to say that this twentieth century may yet succeed in bringing the doom of civilization."
As the chief architect of the Nuremberg Trial, Jackson was pleased with the results, even though not all of his and his colleagues' legal arguments had been accepted at the prosecutorial level and were reflected in the formal charges. The tribunal had declared, he wrote with much satisfaction in his final report to the president on October, 7, 1946, that
To prepare, incite, or wage a war of aggression, or to conspire with others to do so, is a crime against international society, and that to persecute, oppress, or do violence to individuals or minorities on political, racial, or religious grounds in connection with such a war, or to exterminate, enslave, or deport civilian populations, is an international crime, and that for the commission of such crimes individuals are responsible (The Nuremberg Case, 1971, XV).
Jackson, who regarded the Nuremberg Trial as the most important and interesting experience of his life and expected its outcome to guide and influence future international law, would have undoubtedly viewed with much satisfaction not only the verdicts but also the 1948 United Nations (UN) Convention on Genocide and Universal Declaration of Human Rights, as well as, some forty-eight years after his death, the establishment of the International Criminal Court (ICC) in 2002. All may be seen as direct descendants of the Nuremberg Charter and Trial.
Jackson, Robert H. (1971). The Nüremberg Case. New York: Cooper Square Publishers.
Kochavi, Arieh J. (1998). Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment. Chapel Hill, N.C.: University of North Carolina Press.
Taylor, Telford (1992). The Anatomy of the Nuremberg Trials: A Personal Memoir. New York: Knopf.
Tusa, Ann, and John Tusa (1983). The Nuremberg Trial. London: Papermack.
Arieh J. Kochavi