Friends of Padre Steve’s World,
Yesterday I introduced a segment of Associate Supreme Court Justice Robert Jackson’s Closing Arguments at Nuremberg. This article, which is actually the first section of that argument without the allusions to the films Nuremberg and Judgment at Nuremberg. Instead it is simply the first part of Jackson’s argument taken directly from the trial records.
Jackson’s closing occurred 178 days after his opening address, after nearly nine months of testimony, with evidence was presented by the prosecutors and the defense. It was The Nazis own records provided the massive amounts of damning evidence by which the prosecution had to present in such a skillful manner that it couldn’t be denied by defendants or history.
Jackson was masterful as he made his synopsis of the evidence and testimony presented over those nine months. To do so he had to come back after a poor performance against the former Nazi Reichs Marshal Hermann Goering. It was a day that shook his confidence, but after Jackson’s performance, British prosecutor Maxwell Fyfe destroyed Goering on cross. Many in the media believed that Jackson could not come back, in fact he wanted to resign as Chief Prosecutor. But he remained and delivered his second masterpiece of the trial.
His words should give us all pause when we think that we view the events of the past in a patronizing manner, thinking that we are too advanced to be capable of such such behaviors. We trust in technological advances and affluence but human nature remains unchanged and the crimes of the Twentieth Century which Jackson detailed in his summation could be eclipsed by worse today. There are plenty of monsters in the United States and the world all too willing to reprise the crimes of the Nazis. I sincerely believe that President Trump and many members of his administration, and his supporters are capable of doing worse than the Nazis and would do the same if he is elected to a second term, or refuses to leave office. Let the reader understand.
So we begin where Jackson began on the Friday, July 27th 1946.
Mr. President and members of the Tribunal:
An advocate can be confronted with few more formidable tasks than to select his closing arguments where there is great disparity between his appropriate time and his available material. In eight months -a short time as State trials go -we have introduced evidence which embraces as vast and varied a panorama of events as has ever been compressed within the framework of a litigation. It is impossible in summation to do more than outline with bold strokes the vitals of this trial’s sad and melancholy record, which will live as the historical text of the twentieth century’s shame and depravity.
It is common to think of our own time as standing at the apex of civilisation, from which the deficiencies of preceding ages may patronisingly be viewed in the light of what is assumed to be “progress”. The reality is that in the long perspective of history the present century will not hold an admirable position, unless its second half is to redeem its first. These two-score years in this twentieth century will be recorded in the book of years as some of the most bloody in all annals. Two world wars have left a legacy of dead which number more than all the armies engaged in any war that made ancient or medieval history. No half-century ever witnessed slaughter on such a scale, such cruelties and inhumanities, such wholesale deportations of peoples into slavery, such annihilations of minorities. The terror of Torquemada pales before the Nazi Inquisition. These deeds are the overshadowing historical facts by which generations to come will remember this decade. If we cannot eliminate the causes and prevent the repetition of these barbaric events, it is not an irresponsible prophecy to say that this twentieth century may yet succeed in bringing the doom of civilisation.
Goaded by these facts, we were moved to redress the blight on the record of our era. The defendants complain that our pace is too fast. In drawing the Charter of this Tribunal, we thought we were recording an accomplished advance in International Law. But they say that we have outrun our times, that we have anticipated an advance that should be, but has not yet been made. The Agreement of London, whether it originates or merely records, at all events marks a transition in International Law which roughly corresponds to that in the evolution of local law when men ceased to punish crime by “hue and cry” and began to let reason and inquiry govern punishment. The society of nations has emerged from the primitive “hue and cry”, the law of “catch and kill”. It seeks to apply sanctions to enforce International Law, but to guide their application by evidence, law, and reason instead of outcry. The defendants denounce the law under which their accounting is asked. Their dislike for the law which condemns them is not original. It has been remarked before that:
“No thief e’er felt the halter draw with good opinion of the law.”
I shall not labour the law of this case. The position of the United States was explained in my opening statement. My distinguished colleague, the Attorney-General of Great Britain, will reply on behalf of all the Chief Prosecutors to the defendants’ legal attack. At this stage of the proceedings, I shall rest upon the law of these crimes as laid down in the Charter. The defendants, who except for the Charter would have no right to be heard at all, now ask that the legal basis of this trial be nullified. This Tribunal, of course, is given no power to set aside or modify the Agreement between the Four Powers, to which eighteen other nations have adhered. The terms of the Charter are conclusive upon every party to these proceedings.
In interpreting the Charter, however, we should not overlook the unique and emergent character of this body as an International Military Tribunal. It is no part of the constitutional mechanism of internal justice of any of the signatory nations. Germany has unconditionally surrendered, but no peace treaty has been signed or agreed upon. The Allies are still technically in a state of war with Germany, although the enemy’s political and military institutions have collapsed. As a Military Tribunal, this Tribunal is a continuation of the war effort of the Allied nations. As an International Tribunal, it is not bound by the procedural and substantive refinements of our respective judicial or constitutional systems, nor will its rulings introduce precedents into any country’s internal system of civil justice. As an International Military Tribunal, it rises above the provincial and transient, and seeks guidance not only from International Law but also from the basic principles of jurisprudence, which are assumptions of civilisation and which long have found embodiment in the codes of all nations.
Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favour. History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial which they, in the days of their pomp and power, never gave to any man.
But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength. The prosecution’s case, at its close, seemed inherently unassailable because it rested so heavily on German documents of unquestioned authenticity. But it was the weeks upon weeks of pecking at this case, by one after another of the defendants, that has demonstrated its true strength. The fact is that the testimony of the defendants has removed any doubt of guilt which, because of the extraordinary nature and magnitude of these crimes, may have existed before they spoke. They have helped to write their own judgement of condemnation.
But justice in this case has nothing to do with some of the arguments put forth by the defendants or their counsel. We have not previously and we need not now discuss the merits of all their obscure and tortuous philosophy. We are not trying them for the possession of obnoxious ideas. It is their right, if they choose, to renounce the Hebraic heritage in the civilisation of which Germany was once a part. Nor is it our affair that they repudiated the Hellenic influence as well. The intellectual bankruptcy and moral perversion of the Nazi regime might have been no concern of International Law had it not been utilised to goose-step the Herrenvolk across international frontiers. It is not their thoughts, it is their overt acts which we charge to be crimes. Their creed and teachings are important only as evidence of motive, purpose, knowledge and intent.
We charge unlawful aggression but we are not trying the motives, hopes, or frustrations which may have led Germany to resort to aggressive war as an instrument of policy. The law, unlike politics, does not concern itself with the good or evil in the status quo, nor with the merits of the grievances against it. It merely requires that the status quo be not attacked by violent means and that policies be not advanced by war. We may admit that overlapping ethnological and cultural groups, economic barriers, and conflicting national ambitions created in the 1930′ s, as they will continue to create, grave problems for Germany as well as for the other peoples of Europe. We may admit too that the world had failed to provide political or legal remedies which would be honourable and acceptable alternatives to war. We do not underwrite either the ethics or the wisdom of any country, including my own, in the face of these problems. But we do say that it is now, as it was for some time prior to 1939, illegal and criminal for Germany or any other nation to redress grievances or seek expansion by resort to aggressive war.
Let me emphasize one cardinal point. The United States has no interest which would be advanced by the conviction of any defendant if we have not proved him guilty on at least one of the counts charged against him in the Indictment. Any result that the calm and critical judgement of posterity would pronounce unjust would not be a victory for any of the countries associated in this prosecution. But in summation we now have before us the tested evidences of criminality and have heard the flimsy excuses and paltry evasions, of the defendants. The suspended judgement with which we opened this case is no longer appropriate. The time has come for final judgement, and if the case I present seems hard and uncompromising, it is because the evidence makes it so.
I perhaps can do no better service than to try to lift this case out of the morass of detail with which the record is full, and put before you only the bold outlines of a case that is impressive in its simplicity. True, its thousands of documents and more thousands of pages of testimony deal with an epoch and cover a continent, and touch almost every branch of human endeavour.
They illuminate specialities, such as diplomacy, naval development and warfare, land warfare, the genesis of air warfare, the politics of the Nazi rise to power, the finance and economics of totalitarian war, sociology, penology, mass psychology, and mass pathology. I must leave it to experts to comb the evidence and write volumes on their specialities, while I picture in broad strokes the offences whose acceptance as lawful would threaten the continuity of civilisation. I must, as Kipling put it, “splash at a ten-league canvas with brushes of camel’s hair”.