Nazi Conspiracy & Aggression THE LAW OF THE CASE
The end of the war and capture of these prisoners presented
the victorious Allies with the question whether there is any
legal responsibility on high-ranking men for acts which I
have described. Must such wrongs either be ignored or
redressed in hot blood? Is there no standard in the law for
a deliberate and reasoned judgment on such conduct?
The Charter of this Tribunal evidences a faith that the law
is not only to govern the conduct of little men, but that
even rulers are, as Lord Chief Justice Coke put it to King
James, "under God and the law." The United States believed
that the law long has afforded standards by which a
juridical hearing could be conducted to make sure that we
punish only the right men and for the right reasons.
Following the instructions of the late President Roosevelt
and the decision of the
Yalta conference, President Truman directed representatives
of the United States to
[Page 161]
formulate a proposed International Agreement, which was
submitted during the San Francisco Conference to Foreign
Ministers of the United Kingdom, the Soviet Union, and the
Provisional Government of France. With many modifications,
that proposal has become the Charter of this Tribunal.
But the Agreement which sets up the standards by which these
prisoners are to be judged does not express the views of the
signatory nations alone. Other nations with diverse but
highly respected systems of jurisprudence also have
signified adherence to it. These are Belgium,
The Netherlands, Denmark, Norway, Czechoslovakia,
Luxembourg, Poland, Greece, Yugoslavia, Ethiopia, Australia,
Haiti, Honduras, Panama, New Zealand, Venezuela, and India.
You judge, therefore, under an organic act which represents
the wisdom, the sense of justice, and the will of
twenty-one governments, representing an overwhelming
majority of all civilized people.
The Charter by which this Tribunal has its being embodies
certain legal concepts which are. inseparable from its
jurisdiction and which must govern its decision. These, as I
have said, also are conditions attached to the grant of any
hearing to defendants. he validity of the provisions of the
Charter is conclusive upon us all whether we have accepted
the duty of judging or of prosecuting under it, as well as
upon the defendants, who can point to no other law which
gives them a right to be heard at all. My able and
experienced colleagues believe, as do I, that it will
contribute to the expedition and clarity of this trial if I
expound briefly the application of the legal philosophy of
the Charter to the facts I have recited.
While this declaration of the law by the Charter is final,
it may be contended that the prisoners on trial are entitled
to have it applied to their conduct only most charitably if
at all. It may be said that this is new law, not
authoritatively declared at the time they did the acts it
condemns, and that this declaration of the law has taken
them by surprise.
I cannot, of course, deny that these men are surprised that
this is the law; they really are surprised that there is any
such thing is law. These defendants did not rely on any law
at all. Their program ignored and defied all law. That this is so will appear from many acts and statements, of which I cite but a few. In the Fuehrers
speech to all military commanders on November 23rd, 1939, he
reminded them that at the moment Germany had a pact with
Russia, but declared, "Agreements are to be kept only as
long as they serve a certain purpose." Later on in the same
speech he announced, "A violation of the neutrality of
Holland
[Page 162]
and Belgium will be of no importance." (789-PS). A Top
Secret document, entitled "Warfare as a Problem of
Organization," dispatched by the Chief of the High Command
to all Commanders on April 19th, 1938, declared that "the
normal rules of war toward neutrals may be considered to
apply on the basis whether operation of rules will create
greater advantages or disadvantages for belligerents." (L-
211). And from the files of the German Navy Staff, we have a
"Memorandum on Intensified Naval War," dated October 15th,
1939, which begins by stating a desire to comply with
International Law. "However," it continues, "if decisive
successes are expected from any measure considered as a war
necessity, it must be carried through even if it is not in
agreement with international law." (UK-65). International
Law, natural law, German law, any law at all was
to these men simply a propaganda device to be invoked when
it helped and to be ignored when it would condemn what they
wanted to do. That men may be protected in relying upon the
law at the time they act is the reason we find laws of
retrospective operation unjust. But these men cannot bring
themselves within the reason of the rule which in some
systems of jurisprudence prohibits ex post facto laws. They
cannot show that they ever relied upon International Law in
any state or paid it the slightest regard.
The Third Count of the Indictment is based on the definition
of war crimes contained in the Charter. I have outlined to
you the systematic course of conduct toward civilian
populations and combat forces which violates international
conventions to which Germany was a party. Of the
criminal nature of these acts at least, the defendants had,
as we shall show, clear knowledge. Accordingly, they took
pains to conceal their violations. It will appear that the
defendants Keitel and Jodl were informed by official legal
advisors that the orders to brand Russian prisoners of war,
to shackle British prisoners of wa, and to execute commando
prisoners were clear violations of International Law.
Nevertheless, these orders were put into effect. The same is
true of orders issued for the assassination of General
Giraud and General Weygand, which failed to be executed only
because of a ruse on the part of Admiral Canaris, who was
himself later executed for his part in the plot to take
Hitler's life on July 20th, 1944 (Affidavit A).
The Fourth Count of the Indictment is based on crimes
against humanity. Chief among these are mass killings of
countless human beings in cold blood. Does it take these men
by surprise that murder is treated as a crime?
The First and Second Counts of the Indictment add to these
[Page 163]
crimes the crime of plotting and waging wars of aggression
and wars in violation of nine treaties to which Germany was
a party. There was a time, in fact I think the time of the
first World War, when it could not have been said that war-
inciting or war-making was a crime in law, however
reprehensible in morals.
Of course, it was under the law of all civilized peoples a
crime for one man with his bare knuckles to assault another.
How did it come that multiplying this crime by a million,
and adding fire arms to bare knuckles, made a legally
innocent act? The doctrine was that one could not be
regarded as criminal for committing the usual violent acts
in the conduct of legitimate warfare. The age of
imperialistic expansion during the Eighteenth and Nineteenth
Centuries added the foul doctrine, contrary to the teachings
of early Christian and International Law scholars such as
Grotius, that all wars are to be regarded as legitimate
wars. The sum of these two doctrines was to give war making
a complete immunity from accountability to law.
This was intolerable for an age that called itself
civilized. Plain people, with their earthly common sense,
revolted at such fictions and legalisms so contrary to
ethical principles and demanded checks on war immunity.
Statesmen and international lawyers at first cautiously
responded by adopting rules of warfare designed to make the
conduct of war more civilized. The effort was to set legal
limits to the violence that could be done to civilian
populations and to combatants as well.
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 uncivilized ways of
waging war, but also the waging in any way of uncivilized
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.
The reestablishment of the principle that there are unjust
wars and that unjust wars are illegal is traceable in many
steps. One of the most significant is the Briand-Kellogg
Pact of 1928, by which Germany, Italy, and Japan, in common
with practically all the nations of the world, renounced war
as an instrument of national policy, bound themselves to
seek the settlement of disputes only by pacific means, and
condemned recourse to war for the solution of international
controversies. This pact altered the legal status of a war
of aggression. As Mr. Stimson, the United States Secretary
of State put it in 1932, such a war "is no longer to be the
source and subject of rights. It is no longer
[Page 164]
to be the principle around which the duties, the conduct,
and the rights of nations revolve. It is an illegal thing. ***
****** By that very-act, we have made obsolete many legal
precedents and have given the legal profession the task of
reexamining many of its codes and treaties."
The Geneva Protocol of 1924 for the Pacific Settlement of
International Disputes, signed by the representatives of
forty-eight governments, declared that "a war of aggression constitutes an
international crime." The Eighth Assembly of the League of
Nations in 1927, on unanimous resolution of the
representatives of forty-eight member nations, including
Germany, declared that a war of aggression constitutes an
international crime. At the Sixth Pan-American Conference of
1928, the twenty-one American Republics unanimously adopted
a resolution stating that "war of aggression constitutes an
international crime against the human species."
A failure of these Nazis to heed, or to understand the force
and meaning of this evolution in the legal thought of the
world is not a defense or a mitigation. If anything, it
aggravates their offense and makes it the more mandatory
that the law they have flouted be vindicated by juridical
application to their lawless conduct. Indeed, by their own
law had they heeded any law these principles were binding on
these defendants. Article 4 of the Weimar Constitution provided that
"The generally accepted rules of international law are to be
considered as binding integral parts of the law of the
German Reich." (2050-PS). Can there be any doubt that the
outlawry of aggressive war was one of the "generally
accepted rules of international law" in 1939?
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 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 defense the law ever gave,
and to leave war-makers subject to judgment by the usually
accepted principles of the law of crimes.
But if it be thought that the Charter, whose declarations
concededly bind us all, does contain new law I still do not
shrink from demanding its strict application by this
Tribunal. The rule of raw in the world, flouted by the
lawlessness incited by these
[Page 165]
defendants. had to be restored at the cost to my country of
over a million casualties, not to mention those of other
nations. I cannot subscribe to the perverted reasoning that
society may advance and strengthen the rule of law by the
expenditure of morally innocent lives but that progress in
the law may never be made at the price of morally guilty
lives
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. International Law is not capable of
development by the normal processes of legislation for there
is no continuing international legislative authority.
Innovations and revisions in International Law are brought
about by the action of governments designed to meet a change
in circumstances. It grows, as
did the Common Law, through decisions reached from time to
time in adapting settled principles to new situations. The
fact is that when the law evolves by the case method, as did
the Common Law and as International Law must do if it is to
advance at all, it advances at the expense of those who
wrongly guessed he law and learned too late their error. The
law, so far as nternational Law can be decreed, had been
clearly pronounced when these acts took place. Hence, I am
not disturbed by the lack of judicial precedent for the
inquiry we propose to conduct.
The events I have earlier recited clearly fall within the
standards of crimes, set out in the Charter, whose
perpetrators this Tribunal is convened to judge and punish
fittingly. The standards for war crimes and crimes against
humanity are too familiar to need comment. There are,
however, certain novel problems in applying other precepts
of the Charter which I should call to your attention.
The
original plaintext version
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Volume
I Chapter V
Justice Jackson's Opening Address for the United States of America
(Part 14 of 17)