Prosecuting Tony Blair and others

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US Supreme Court Justice Robert H. JACKSON:

appearing as Chief Prosecutor for the Government of the United States

Opening Speech for the Prosecution

21 November 1945 Volume 1 - Session 2 (pp.49-51 & 78-86)

The Trial of German Major War Crimminals sitting at Nuremberg, Germany

HMSO (Blue Transcripts)

...

May it please Your Honour, 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. That four great nations, flushed with victory and stung with injury, stay the hands of vengeance and voluntarily submit their captive enemies to the judgement of the law, is one of the most significant tributes that Power ever has 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 seventeen more, to utilise 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 that magnitude that the United Nations will lay before Your Honour.

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The common sense of men after the First World War demanded, however, that the law's condemnation of war reach deeper, and that the law condemn not merely uncivilised ways of waging war, but also the waging in any way of uncivilised wars - wars of aggression. The world's statesmen again, went only as far as they were forced to go. Their efforts were timid and cautious and often less explicit than we might have hoped. But the 1920's did outlaw aggressive war.

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Any resort to war - to any kind of a war - is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged [Page 81] of in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defence the law ever gave, and to leave war-makers subject to judgement by the usually accepted principles of the law of crimes.

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It is true, of course, that we have no judicial precedent for the Charter. But International Law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some State. Unless we are prepared to abandon every principle of growth for International Law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened International Law

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A basic provision of the Charter is that to plan, prepare, initiate, or wage a war of aggression, or a war in violation of international treaties, agreements, and assurances, or to conspire or participate in a common plan to do so, is a crime. It is perhaps a weakness in this Charter that it fails itself to define a war of aggression. Abstractly, the subject is full of difficult and all kinds of troublesome hypothetical cases can be conjured up. It is a subject which, if the defence should be permitted to go afield beyond the very narrow charge ion the Indictment, would prolong the trial and involve the Tribunal in insoluble political issues. But so far as the question can property be involved in this case, the issue is one of no novelty and is one on which legal opinion has well crystallised.

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And I further suggest that it is the general view that no political, military, economic or other considerations shall serve as an excuse or justification for such actions but exercise of the right of legitimate self-defence - that is to say, resistance to an act of aggression, or action to assist a State which has been subjected to aggression, shall not constitute a war of aggression.

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Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is not a legal means for settling those grievances or for altering those conditions. It may be that the Germany of the 1920's and 1930's faced desperate problems, problems that would have warranted the boldest measures short of war. All other methods - persuasion, propaganda, economic competition, diplomacy-were open to an aggrieved country, but aggressive warfare was outlawed. These defendants did make aggressive war, a war in violation of treaties. They did attack and invade their neighbours in order to effectuate a foreign policy which they knew could not be accomplished by measures short of war. And that is as far as we accuse or propose to inquire.

The Charter also recognises individual responsibility on the part of those who commit acts defined as crimes, or who incite others to do so, or who join a common plan with other persons, groups or organisations to bring about their commission.

The principle of individual responsibility for piracy and brigandage, which have long been recognised as crimes punishable under International Law, is old and well established. That is what illegal warfare is. This principle of personal [Page 83] liability is a necessary as well as a logical one if International Law is to render real help to the maintenance of peace. An International Law which operates only on States can be enforced only by war because the most practicable method of coercing a State is warfare. Those familiar with American history know that one of the compelling reasons for adoption of our Constitution was that the laws of the Confederation, which operated only on constituent States, were found in-effective to maintain order among them. The only answer to recalcitrance was impotence or war. Only sanctions which reach individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive is implemented by the Charter with the principle of personal responsibility.

Of course, the idea that a State, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a State or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity.

The Charter recognises that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of States. These twin principles, working together, have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of State. Under the Charter, no defence based on either of these doctrines can be entertained. Modern civilisation puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility.

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But the ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn, aggression by any other nations, including those which sit here now in judgement. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law. This trial represents mankind's desperate effort to apply the discipline of the law to statesmen who have used, their powers of state to attack the foundations of the world's peace, and to commit aggressions against the rights of their neighbours.

The usefulness of this effort to do justice is not to be measured by considering the law or your judgement in isolation. This trial is part of the great effort to make the peace more secure. One step in this direction is the United Nations Organisation, which may take joint political action to prevent war if possible, and joint military action to insure that any nation which starts a war will lose it. This Charter and this trial, implementing the Kellogg-Briand Pact, constitute another step in the same direction- juridical action of a kind to ensure that those who start a war will pay for it personally.

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The real complaining party at your bar is Civilisation. 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 aggression 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.

Civilisation 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 prospects, 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."

THE PRESIDENT: The Tribunal will now adjourn until 10 o'clock tomorrow morning.

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