ROBERT H. JACKSON “OPENING STATEMENT AT THE INTERNATIONAL MILITARY TRIBUNAL” (21 NOVEMBER 1945)
- With the benefit of hindsight, contemporary audiences may view the International Military Tribunal (IMT) as the “inevitable” solution to the dilemma the Allied Powers faced in dealing with captured Nazi leaders. Return to the quotation from Gordon Dean in the critical essay. If public sentiment called for mass executions, why have a trial at all? Think critically about the purposes for trials in general. What does a trial do for a community? Generate a list of the benefits of holding a trial to prosecute the Nazi leaders. Once you have completed that list, look at your assumptions. Are these fair expectations for a trial? Do the benefits of having a trial outweigh any possible costs? As you ponder solutions to the Allied Powers’ dilemma, can you envision other alternatives to a trial or mass executions?
- Throughout his speech, Robert Jackson invoked the term “civilization.” How does Jackson use that term? Who might constitute “civilization”? Who is not part of “civilization,” in Jackson’s conception or the term?
- Jackson never used the term “Holocaust” in this speech, but he did discuss at length the treatment of Jewish populations during World War II. What did he have to say about the atrocities we now refer to as the Holocaust? What might account for the way Jackson chose to talk about these atrocities?
- Examine paragraph 192 in the speech text. There Jackson said: “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 moral sense must be regarded as innocence in law.” In this paragraph, Jackson posits a particular relationship between law and morality. What does he mean by the “moral sense of mankind?” How might one determine the “moral sense of mankind?” What is his argument about the relationship between law and morality? Do you agree with this argument? Why or why not?
- Return to the discussion of ex post facto law in the interpretive essay. Is Jackson’s response to charges that the IMT was creating ex post facto law persuasive? Do you agree with those critics that the IMT did violate prescriptions against ex post factolaw? If yes, do you think that this set a dangerous precedent? Why or why not? Should the international community or individual nation-states be able to revise the law to prosecute atrocities that were not defined as such when the events took place?
- The IMT was a magnet for criticism. The interpretive essay for this unit details some, but not all of the controversies surrounding the trial. For example, consider that Justice Jackson temporarily left his duties on the Supreme Court to assume his position at Nuremberg. What was the response in the U.S. to his departure? Be sure to research Chief Justice Harlan F. Stone’s response to the IMT. Was Jackson justified in leaving the bench to participate in the Tribunal?
- How did the Allied Powers determine which individuals to prosecute? For example, did some consider all of the German people guilty? What about the German Army? Did some consider all German soldiers guilty? How did Jackson address the assignment of guilt in his speech? Look specifically at the way Jackson described the German people. How did he discuss the defendants in contrast to the German army or the German people as a whole? What distinguished the defendants from other Germans?
- Recall the four counts in the indictment against the defendants in the IMT trial: “Crimes against Peace,” “War Crimes,” “Crimes against Humanity,” and a “Common Plan or Conspiracy to commit those Crimes.” How did Jackson explain the meaning of these charges? How, in particular, did he explain the conspiracy charge? Research how the IMT decided this case and how similar charges have been prosecuted in other war crimes cases.
- Recall how Jackson discussed the persecution of the Jews in his speech. Research how the U.S. prosecutorial team came to its understanding of the nature and scope of the Holocaust. Where did the term “Holocaust” come from, and when did information about the Holocaust begin to appear in American political and media discourse?
- The IMT was only the first of many Holocaust trials. Research subsequent trials. How many were held? Who was prosecuted through these trials? What were the outcomes? When and why did the Nuremberg trials conclude? How did Nazis captured and held in other countries react to the trials? Locate scholarly sources on the trials. What issues tended to be at the center of the debates about the value and legitimacy of these trials?
- The critical essay accompanying this speech explains that Jackson needed to defend the law itself given the role of the courts in sanctioning some of Germany’s wartime actions. Research the role of the courts in Nazi Germany. What policies did these courts legitimize?
- Jackson’s path to the Supreme Court was somewhat unique for the time period, at least in terms of his formal legal training (see Constance L. Martin, “The Life and Career of Justice Robert H. Jackson,” Journal of Supreme Court History33, no. 1 (2008): 51). After reading Martin’s article, do additional research on Jackson’s education at Albany Law School. How might Jackson’s arguments about the nature of the law in the opening statement reflect elements of his legal training?
- Rhetoric scholar MoroufHasian has argued that the legacy of Nuremberg has become “ossified”? By that, he means that contemporary audiences are exposed only to a single, largely positive narrative about the trial. Do you think this is true? In what contexts do contemporary speakers still invoke the memory of Nuremberg? How is the trial remembered today?
- The critical essay in this unit interprets Jackson’s opening statement as a means for U.S. actors to restore “order” to international affairs. Can you find other examples of the U.S. trying to bring “order” to world politics? What other arguments rely on the assumption that the U.S. has some sort of obligation or responsibility to uphold “order” in international affairs?
- Research the International Criminal Court (ICC). Which nation-states have become parties to the ICC? Which have not? What position has the United States adopted with regard to the ICC? Consider the controversy around the United States and its position on the Rome Statute, which established the ICC. What are the concerns of the ICC’s critics? What arguments do supporters of the ICC advance? As you look at these arguments, think specifically about how both the ICC’s proponents and detractors understand concepts such as national sovereignty and/or the responsibilities individual nations might have to the international community. How is the United States positioned vis-à-vis the rest of the international community in this discourse?
- As explained in the critical essay, some critics feel the U.S. has “turned its back” on its Nuremberg legacy since the beginning of the War on Terror. Research the controversies surrounding the legality of U.S. domestic and international actions in the aftermath of the 9/11 terrorist attacks. Have those actions been in line with Jackson’s vision of international law?
- What role has Nuremberg played in shaping American memories of World War II and the Holocaust? Start with the website for the United States Holocaust Memorial Museum (www.ushmm.org). How does that site describe Nuremberg? More broadly, how does the website position the U.S. in the narrative history of World War II? Why do you think the U.S. created a Holocaust museum when the atrocities remembered there took place in Europe? Research the controversy surrounding the decision to build a Holocaust museum on the National Mall, and consider how the museum itself positions the U.S. in memoires of the Holocaust.