Wednesday, November 21, 1945 marked the second day in the Trial of the Major War Criminals before the International Military Tribunal (IMT), more commonly known today as the Nuremberg Trials. For the first time in history, military, economic, and political leaders identified as Major Offenders would be held to account for the actions of their government and military and its crimes against humanity and peace. Beginning the proceedings in the Palace of Justice on this, the second day of a trial that would not end for 293 subsequent days, was the opening statement for the prosecution delivered by American Supreme Court Justice and US Chief of Counsel, Justice Robert H. Jackson. Jackson’s opening statement, consisting of nearly 25,000 words and taking nearly three-and-a-half hours to read, remains one of the most famous and influential oratories in the canon of international law and criminal jurisprudence.
Appointed by President Truman and taking a leave of absence from the bench of the US Supreme Court, Associate Justice Jackson, along with other members of the IMT, labored for many months over the summer and fall of 1945 in an attempt to codify the legal precedents required to try individual members of the Nazi regime. Building off the framework of statements and declarations from the 1943 Moscow and 1945 Yalta and Potsdam Conferences, the task facing Jackson and the IMT remained a daunting one. All of the Allies agreed that Nazi Germany must be punished for the unprecedented nature of its crimes. However, it was also agreed that a predetermined ‘show trial’ was to be avoided to dispel as much as possible the idea of a vindictive victor’s justice. As such, each of the 22 Nazi defendants present at Nuremberg stood accused of one or more of the following four new categories of crimes outlined by Jackson and the IMT: “Participation in a common plan or conspiracy for the accomplishment of a crime against peace,” “Planning, initiating and waging wars of aggression and other crimes against peace,” “Participating in war crimes,” and “Crimes against humanity.”
Just as the IMT strove to define the new legal landscape, Jackson spent months drafting his opening statement which not only introduced these new concepts of international law to the Nuremberg court, but also indicated to a worldwide audience that justice for the victims of Nazi aggression would be served. In his statement, Jackson’s tone was analytical, deliberate, and extraordinarily thorough. Jackson’s tone matched the basis of the argument for the prosecution which chose to rely on documentary evidence, eschewing possibly volatile eyewitness testimony. Despite his dispassionate approach, Jackson began by acknowledging that he well understood the momentous nature of the trial both for himself and for world leaders to come.
"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."
Speaking of the defendants, “twenty-odd broken men…their fate of little consequence to the world,” Jackson focused on the actions of the Nazi leaders rather than their identities. The defendants embodied and signified all of the evils of Nazism which must be extinguished lest they arise again in the future.
"What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life…. 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."
For more than three hours, Jackson relentlessly made his argument, condemning the Nazi regime and its actions as criminal from the very moment of their inception to the arrival of their defeat. Albert Speer, the Nazi Minister of Armaments and War Production, was both impressed by Jackson’s “grand, devastating address,” but also comforted somewhat “from one sentence in it which accused the defendants of guilt for the regime's crimes, but not the German people.” At the conclusion of his statement, Jackson was honest in his assessment of human history, but also hopeful in his appraisal for humanity’s future.
"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."
Seventy-five-years later, Justice Jackson’s opening statement at Nuremberg remains one of the most significant and one of the most often cited affirmations on the role and responsibility of international law and human rights. Jackson’s opening statement continues to serve as a foundation for the course of international law and international criminal trials to the present day.
This article is part of a series commemorating the 75th anniversary of the end of World War II made possible by the Department of Defense.