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LOSING ADDRESS FOR THE UNITED STATES OF AMERICA

by
ROBERT H. JACKSON

Representative and Chief of Counsel

for the
United States of America

[R. PRESIDENT AND MEMBERS OF THE TRIBUNAL:

An advocate can be confronted with few more formidable tasks han to select his closing arguments where there is great disparity etween his appropriate time and his available material. In eight nonths a short time as state trials go we have introduced vidence which embraces as vast and varied a panorama of events s has ever been compressed within the framework of a litigation. t is impossible in summation to do more than outline with bold strokes the vitals of this trial's mad 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 civilization, from which the deficiencies of preceding ages may patronizingly 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 one 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 halfcentury 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 civilization.

Goaded by these facts, we have 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

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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 local 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 ere felt the halter draw

With good opinion of the law.” I shall not labor 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 to modify the Agreement between the Four Powers, to which nineteen 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

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, it 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 as

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mptions of civilization and which long have found embodiment the codes of all nations. Of one thing we may be sure. The future will never have to k, with misgiving, what could the Nazis have said in their vor. History will know that whatever could be said, they were lowed to say. They have been given the kind of a trial which ey, in the days of their pomp and power, never gave to any an. But fairness is not weakness. The extraordinary fairness of ese hearings is an attribute to our strength. The prosecution's ise, at its close, seemed inherently unassailable because it rested

heavily on German documents of unquestioned authenticity, ut it was the weeks upon weeks of pecking at this case by one fter another of the defendants that has demonstrated its true crength. The fact is that the testimony of the defendants has emoved any doubts of guilt which, because of the extraordinary ature and magnitude of these crimes, may have existed before hey spoke. They have helped write their own judgment of conemnation.

But justice in this case has nothing to do with some of the argunents 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 possession of obnoxious ideas. It is their right, if they choose to renounce the Hevraic heritage in the civilization 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 utilized to goosestep 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 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

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would be honorable 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 judgment 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 judgment with which we opened this case is no longer appropriate. The time has come for final judgment 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 endeavor. They illuminate specialties, 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 specialties, while I picture in broad strokes the offenses whose acceptance as lawful would threaten the continuity of civilization. I must, as Kipling put it, “splash at a ten-league canvas with brushes of comet's hair."

The Crimes of the Nazi Regime The strength of the case against these defendants under the conspiracy count, which it is the duty of the United States to argue, is in its simplicity. It involves but three ultimate inquiries : First, have the acts defined by the Charter as crimes been committed ; second, were they committed pursuant to a common plan or conspiracy; third, are these defendants among those who are criminally responsible?

The charge requires examination of a criminal policy, not of a multitude of isolated, unplanned, or disputed crimes. The sub

antive crimes upon which we rely, either as goals of a common an or as means for its accomplishment, are admitted. The pilrs which uphold the conspiracy charge may be found in five oups of overt acts, whose character and magnitude are imortant considerations in appraising the proof of conspiracy.

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1. THE SEIZURE OF POWER AND SUBJUGATION OF GERMANY

TO A POLICE STATE The Nazi Party seized control of the German state in 1933. Seizure of power” is a characterization used by defendants and efense witnesses, and so apt that it has passed into both history nd every-day speech.

The Nazi junta in the early days lived in constant fear of verthrow; Goering, in 1934, pointed out that its enemies were egion and said:

“Therefore the concentration camps have been created, where we have first confined thousands of Communists and Social Democrat functionaries.”2

In 1933 Goering forecast the whole program of purposeful cruelty and oppression when he publicly announced :

“Whoever in the future raises a hand against a representative of the National Socialist movement or of the State, must know that he will lose his life in a very short while.”'3

New political crimes were created to this end. It was made a treason, punishable with death, to organize or support a political party other than the Nazi party. Circulating a false or exaggerated statement, or one which would harm the state or even the Party, was made a crime. Laws were enacted of such ambiguity that they could be used to punish almost any innocent act. It was, for example, made a crime to provoke "any act contrary to the public welfare.''

The doctrine of punishment by analogy was introduced to enable conviction for acts which no statute forbade.? Minister of Justice Guertner explained that National Socialism considered every violation of the goals of life which the community set up for itself to be a wrong per se, and that the act could be punished even though it was not contrary to existing "formal” law.8

The Gestapo and the SD were instrumentalities of an espionage system which penetrated public and private life. Goering controlled a personal wire-tapping unit." All privacy of communication was abolished.11 Party blockleiters, appointed over every 50 households, continuously spied on all within their ken.12 Upon the strength of this spying individuals were dragged off to "protective custody" and to concentration camps, without legal pro

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