Monday, November 21, 2005

Sixty year anniversary of Jackson's opening Nuremberg statement

Roger Alford at Opinio Juris was reminded by St. John's John Barrett (a classmate of mine from HLS '86, who is a leading scholar of Robert Jackson and the Nuremberg trial), here, that today is the 60th anniversary of Robert Jackson's (pictured right) opening statement at Nuremberg. It remains one of the great statements of natural law in international law - although modern students are wont to view it as a statement primarily about war crimes and conduct of war, whereas Jackson himself saw the essential issue at Nuremberg to be the criminalization of aggressive war itself - leaving the conduct questions essentially to the two parties among the prosecutors who had suffered the most, the Soviet Union and France.

The irony, of course, is that (leaving aside the non-starter of the International Criminal Court having the authority, somehow, someday, under the Rome Statute, to define aggressive war), Jackson's effort to judicialize the question of aggressive war did not really survive the founding of the United Nations itself, which essentially committed all those jus ad bellum questions to the Security Council, not judges, political questions, not judicial ones. What has survived from Nuremberg, in some form, is the judicialization of jus in bello - precisely the part that Jackson did not think really worth his time, because, as he correctly understood, war crimes had always been criminal, and so except with regards to particulars - even huge ' particulars', such as genocide and crimes against humanity - the prosecution of those crimes did not advance his bold agenda. A truly bold agenda - making the Kellogg-Briand pact, among other things, the basis for holding individuals liable for aggressive war. But not an agenda that survived very long.

I realize that this does not sound all that flattering to Jackson. But there is a huge amount of hype surrounding Jackson and what he supposedly achieved at Nuremberg. I think he overreached, and the past sixty years have shown exactly that. I had a chance to reflect a little on this, ten years ago, when reviewing Telford Taylor's massive and magisterial memoir, The Anatomy of the Nuremberg Trials.

I was privileged to meet Taylor several times a couple of years before he passed away - he invited me in each case to lunch at the Harvard Club in New York City - as he was passing over to me the extraordinary honor of teaching his course on the laws of war at Columbia Law School (his outstanding co-teacher, Jonathan Bush, was leaving for the West Coast). He was in his middle or late 80s at the time, courtly and unfailingly polite to a very young colleague, and simultaneously full of enthusiasm and vigor. He had just published his memoir, and was eager to get on with his next (as I recall, he had just been informed that case files from Nuremberg that had been lost in Army warehouses since the late 1940s - like the final scene in Raiders of the Lost Ark, I guess - had been found, and he wanted to go through them and publish a second volume). I was duly humbled - as I would have been, I hasten to add, had I met Justice Jackson - I criticize his overreaching as an intellectual matter and political matter, with no disrespect intended.

(I will post a link to the review of Taylor's book - somehow it is not up on my faculty website, which is here.)

But in that review essay I quoted a senior British judge advocate, whom I had come to know in my landmines ban work for Human Rights Watch in those years - and who preferred to remain anonymous. It is something that bears remembering, and indeed is worth more than the rest of the review altogether. "Nuremberg," he said, was

"a lovely hood ornament on the ugainly vehicle that liberated Western Europe, but it was not a substitute for D-Day."

And I added to that: A military victory [was] not a merely a practical prerequisite to a trial, but a moral necessity.

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