Leading Figures in International Law
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ROBERT
H. JACKSON
When Robert H. Jackson said “[it] was the supremely interesting and important work of my life,” he was not talking about his role in drafting the New Deal legislation that helped the United States rise out of the Great Depression, nor was he referring to his service as the Solicitor General or Attorney General of the United States, or even to his time as an Associate Justice on the U.S. Supreme Court. Instead, Jackson was referring to his service as the U.S. Chief of Counsel for the International Military Tribunal at Nuremberg after World War II.
Jackson’s background was not what one would expect of “America’s Advocate.” Born in 1892 on a farm in Spring Creek, PA, Robert Houghwout Jackson grew up in Frewsburg, NY, living the farm life typical of rural American families in the early twentieth century. He never received a formal college or law school education. After graduating from high school he was an apprentice at his cousin’s law office in Jamestown, NY and studied for a year at the Albany Law School, the oldest independent law school in the United States. In fact, Jackson was one of the last lawyers in New York State to receive the apprenticeship training, since shortly after he passed the Bar Exam in 1913 New York changed its rules and began to require law students to complete three years of law school.
By 1932, Jackson had established himself as the leading lawyer in the Jamestown, NY area. He also participated in statewide Democratic political activities, thus how he captured the attention from then New York Governor Franklin D. Roosevelt. In 1934, Jackson arrived in Washington, DC after being appointed by President Roosevelt to serve as General Counsel for the Board of Internal Revenue of the U.S. Treasury Department. He quickly made a name for himself in Washington working tirelessly to propagate New Deal legislation and to reform the country’s tax laws. He later moved on to the Department of Justice, serving as Assistant Attorney General heading the Antitrust Division of the USDOJ and Solicitor General of the United States. He was appointed Attorney General in 1940. When an Associate Justice vacancy arose on the Supreme Court in 1941, President Roosevelt appointed Robert H. Jackson to the position.
In the spring of 1945, as World War II was coming to a close, the Allies were deciding the best plan to bring Nazi war criminals to justice. President Truman called upon Jackson to lead the U.S. delegation and serve as the Chief U.S. Prosecutor for the International Military Tribunal (IMT).
Jackson saw international law as more than a simple set of abstract principles. He drew upon treaties, conventions, state practice, and customs in deciding what principles to put into the London Charter of the IMT. He did not believe that international law applied only to States and rejected the “superior orders” defense. His beliefs not only signaled a shift towards the prosecution of top leaders who could no longer defend themselves with claims of sovereign immunity, but also for the first time in history shifted accountability from the nation to the individual. With respect to crimes against humanity, Jackson believed in universal jurisdiction, meaning that civilization had a responsibility to prosecute. As such, he sought to create a tribunal that would justly and efficiently try those individuals accused of committing these egregious crimes.
As a co-author of the London Charter and the Chief U.S. Prosecutor, Jackson helped establish many legal precedents that shaped the modern-day international rule of law. Most notably, he suggested the following set of charges be laid out in the Charter: war crimes, crimes against humanity, and crimes against the peace (waging aggressive war). The London Charter was the first of its kind to define such crimes. The definition of crimes against humanity outlined certain inviolable rights to be protected by a law higher than that of any individual country, setting the stage for the start of an international human rights movement.
Jackson also had significant influence over the conduct of the Tribunal’s proceedings. He insisted on a presumption of innocence, allowing the defendants to receive well-qualified counsel, especially on convictions based on documentary evidence from Nazi files as opposed to witness testimony. While his ideas were controversial, Jackson knew that because the IMT was the first truly international trial the world had ever seen. “…The record on which we judge these defendants today is the record on which history will judge us tomorrow.” He was determined to make every effort to maintain the integrity and credibility of the trials in the interest of developing the international rule of law. Decades later, when Carla del Ponte was the Chief Prosecutor for the International Criminal Tribunal for the former Yugoslavia (ICTY), she drew upon Jackson’s reliance on convicting defendants with their own documentary evidence, particularly during the trial of Slobodan Milosevic.
It can be said that Jackson’s biggest accomplishment at the IMT was not in the actual proceedings or convictions handed down but rather in the precedent his ideas set for the development of international law. On December 11, 1946 the General Assembly of the United Nations adopted the Nuremberg Principles, a set of guidelines crafted during the first IMT trial defined a war crime. The European Convention on Human Rights, the Universal Declaration of Human Rights, and the UN Genocide Convention reflect principles contained in the London Charter. The Nuremberg Principles also served as a forerunner to the ICTY, ICTR, and, most notably, the Rome Statute for the International Criminal Court.
Robert Jackson was an eloquent advocate for international law. Two of his most enduring oratorical legacies are the speech he presented to the Inter-American Bar Association meeting in Havana, Cuba, on March 27, 1941 on “International Order” and his opening statement and closing arguments at the Nuremberg Trials. In the former, he denounced the idea that wars of aggression are permissible under international law, proclaiming that “present aggressive wars are civil wars against the international community.” Part of his closing argument before the IMT, which John W. Davis himself a great lawyer, proclaimed as “one of the finest examples of advocacy I have ever read” is worth repeating here:
The real complaining party at your bar is Civilization. In all our countries it is still a struggling and imperfect thing. It does not plead that the United States, or any other country, has been blameless of the conditions which made the German people easy victims to the blandishments and intimidations of the Nazi conspirators.
But it points to the dreadful sequence of aggressions and crimes I have recited; it points to the weariness of flesh, the exhaustion of resources, and the destruction of all that was beautiful or useful in so much of the world, and to greater potentialities for destruction in the days to come. It is not necessary among the ruins of this ancient and beautiful city with untold numbers of its civilian inhabitants still buried in its rubble, to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. 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 the moral sense must be regarded as innocent in law.
Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, it sanctions, on the side of peace, so that mean and women of good will, in all countries, may have ‘leave to live by no man’s leave, underneath the law.’
In the fall of 1946, Robert H. Jackson returned to Washington, DC and to the Supreme Court, where he was widely respected for his intelligence and eloquence as an Associate Justice. During the Feb. 1952 – June 1953 term as the Court was preparing to hear the landmark case Brown v. Board of Education, one of Jackson’s law clerks, a recent graduate of Stanford Law School was William H. Rehnquist, future Chief Justice of the United States Supreme Court. Justice Jackson passed away on October 9, 1954, only months after the Court handed down the historic Brown decision. Chief Justice Rehnquist fondly remembered Jackson as a man who had a “rare ability … to maintain throughout his life a sturdy independence of view.”
Robert H. Jackson was not only a great lawyer and great advocate, but his work as a major architect of the London Charter and his work before the IMT at Nuremberg require that he be recognized as a “leading figure in international law.”
by James G. Apple, Co-Editor, International Judicial
Monitor and President, International Judicial Academy;
and Christine E. White, International Judicial Academy
International
Judicial Monitor