Justice Jackson and the Nuremberg Trials

Abstract

Justice Jackson and the Nuremberg Trials Dennis J. Hutchinson Imagine, as we consecrate the fiftieth anni­ versary of the end of World War II, the follow­ ing news story: BERLIN, OCCUPIED GERMANY (AMERICAN ZONE), July 4, 1945— Officials of the Allied Control Council today confirmed reports that more than 100 ex-Nazi leaders, including Field Marshal Herman Goering and several generals, were summarily ex­ ecuted at sunrise today by a platoon of troops representing the four oc­ cupying forces here. No further de­ tails were released. The only com­ ment, from an official who insisted on anonymity, was “The Third Reich is finished.” Many criticisms can by levied at the International Military Tribunal for the Prosecution of Major War Criminals of the European Axis, as it was formally known. However, my imaginary news story would have caused shock and outrage that would have all but eclipsed debate over the for­ mat of the Nuremberg Trials. The moral high ground established by the Allies throughout the war would have been gone in a stroke, and cyni­ cal questions would have been legion: How were the victims chosen? Why not more? (Or less?) Does legitimacy come only from the end of a gun barrel? Despite these obvious objections, we must not forget that the initial impulse of the allied lead­ ers was summary executions. At Teheran in December 1943, Stalin suggested executing 50,000 Nazis without trial. Roosevelt, who did not yet know his quarry well, thought he was joking. Fourteen months later at Yalta, in Feb­ ruary 1945, Churchill proposed that the BigThree draw a list ofGerman leaders to be “shot as soon as they were caught and their identity estab­ lished.”1 (There was even a tentative short list, which Roosevelt and Churchill had developed at Quebec the previous year: Hitler, Goering, Goebbels, Himmler, Ribbentrop, and Keitel. Their “guilt was so black,” said Churchill, that it was “beyond the scope ofjudicial process.”2 The admirals, Doenitz and Rader, were possible add­ ons from a long list, and Clement Atlee thought Schacht, von Papen, and major industrialists should also be added.) Stalin, without a hint of irony, insisted at Yalta on show trials. Churchill still opposed trials, but Roosevelt, tired and frail, capitulated, although he had no doubt of the re­ sult and suggested that no journalists or photo­ graphs be allowed access until after the defen­ dants were dead. At the close of the Yalta Con­ 106 JACKSON AT NUREMBERG ference, the trials could have been anything from a drumhead court-martial, which Cordell Hull, the Secretary of State wanted, to a documentary trial, favored by Secretary ofWar Henry Stimson. (Henry Morgenthau, the Secretary of the Trea­ sury, was the least relenting member of the cabi­ net: he wanted no delays, summary judgment, the Ruhr de-industrialized, and Germany reduced to a bare agrarian economy.) The documentary trials now synonymous with Nuremberg owe less for their format and emphasis to Stimson, who took the most legalistic approach in the Cabinet, than to Justice Robert H. Jackson, who negoti­ ated the four-power agreement that established the tribunal and its charter, and who, more fa­ mously, served as chief prosecutor during the year-long trials. To mention Justice Jackson is to acknowl­ edge his centrality at Nuremberg, to emphasize the propriety ofour venue, and to imply that trou­ bling issues—ofjudges as prosecutors, ofsources of law, and so on—lurk in the foreground. Jack­ son viewed Nuremberg as the epitome of his ca­ reer, but his participation was opposed by his colleagues, his performance enjoyed mixed re­ views at best, and his reputation suffered a per­ manent blemish when he threw a very public tan­ trum near the end of his work there. After he returned to the Court, his impact on the law was both praised and qualified for Nuremberg’s in­ fluence, and his sadly abbreviated judicial ca­ reer came to be remembered over time more for eloquence than for substance. Approximately fifty years ago, Jackson was recruited, under slightly false pretenses, into what became the Nuremberg trials. Judge Samuel Rosenman, speechwriter and troubleshooter for Roosevelt and by then for President Truman, called on Jackson at the Court and...