6 THE ADVANTAGE OF THE STRONGER

A criminal trial in common law is an alternate universe. It rests on a fiction and a paradox. The fiction is that when proceedings begin, reality itself is suspended. Not all reality, to be sure—the president is still president; it may still be raining outside; and the daily round of births, marriages, and deaths continues unabated—but rather the much narrower reality that surrounds the events in question.

The paradox is that by suspending reality, a new reality is created. This is the verdict. The verdict establishes once and for all the dominant narrative of events and culpability. It does not, however, alter the truth. We may, for example, still believe that a certain celebrity murdered his wife, but the dominant narrative declares that he did not. Even if we disagree with this version of reality, it cannot be altered.

One must comprehend this concept of a trial in order to fully appreciate the challenges of the Nuremberg Tribunal. Before its planners could even approach debate over evidentiary issues, sovereign immunity, relative guilt, or nulla poena sine lege, there remained a philosophical objection—perhaps even a moral one. Applying the common law’s tabula rasa at Nuremberg meant that when the opening gavel came down in November 1945, there would be no war, no broken treaties, no ravaged countries, no casualties, and most importantly (for posterity, if not the prosecutors) no Holocaust. No one could seriously deny the facts or the culpability of the defendants; to do so insulted not only common sense but the victims. And yet justice required precisely this formulation. “You must put no man on trial before anything that is called a court,” Supreme Court justice (and future Nuremberg prosecutor) Robert Jackson declared in a speech given one day after President Roosevelt’s death, “under the forms of judicial proceedings, unless you are willing to see him freed if he is not proven guilty.”[1]

At the opening of the Nuremberg Tribunals, Jackson provided his own answer: “That four great nations, flushed with victory and stung with injury, stayed the hand of vengeance…is the greatest tribute Power has paid to Reason.”

I first encountered these words as a law student. They made no particular impression on me at the time. I found them again many years later in audible form: a recording of Justice Robert Jackson’s address for the prosecution at the Nuremberg Tribunals, November 21, 1945. The voice on the tape is strong and commanding, the slightly mid-Atlantic accent reminiscent of the recently deceased president. As are the words themselves. There is no newsreel footage of this moment, but one photograph shows a slight man with a bookish demeanor, thinning hair unflatteringly lit by klieg light, glasses perched on the end of his nose.

Studying the photograph, listening to the recording, one would not imagine Jackson was knowingly stepping out onto a tightrope. Yet his speech, and the tribunal itself, was the legal equivalent of Philippe Petit’s high-wire walk between the twin towers of the World Trade Center. The confidence in Jackson’s voice masks profound uncertainty; the disquiet of his listeners was not boredom but real fear.

Reconsider this image. The wainscoting and marble surrounds of the courtroom look impressive, but color photographs reveal the stain to be streaked and thin, the marble cracked. The furniture is cheap. This was Room 600 in the Nuremberg Justizpalatz, or Palace of Justice. In the city where the infamous anti-Semitic Nuremberg Laws were promulgated in 1935, this was the building—the very room—where they were enforced. Jews and other minorities were stripped of their rights, humiliated, criminalized. In returning the courtroom to a semblance of its former self, the tribunal was raising a ghost to exorcise it.

Beyond the courtroom lay a wasteland. The church where King Wenceslas IV was baptized in 1361 was nothing more than a hollow shell. The Army Corps of Engineers had been tasked with clearing paths through the rubble; prosecutors’ cars passed through canyons of bricks and beams, studded with heartrending items like warped bicycles and children’s dolls. In a single hour on January 2, 1945, Allied bombing destroyed over 90 percent of the medieval quarter and left a hundred thousand homeless. In the last days of the war, Nuremberg was one the final cities to surrender, with battles raging along every street and often house to house.

There were even starker dichotomies. At the left of the courtroom two benches had been erected for the defendants. The seats were deliberately truncated, forcing the men to huddle together and stumble over one another as they took their seats. Military officers wore plain tunics stripped of insignia; others wore business suits that grew rumpled and frowsy as the trial went on. Some had dark glasses shielding their eyes from the bright lights. Behind them stood a row of white-helmeted military police, as if these paunchy middle-aged bureaucrats might suddenly break loose and resist. But there was little resistance left in them. “Twenty-odd broken men,” was how Robert Jackson described them. “It is hard now to perceive in these men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it.” But their ranks included such nightmarish figures as SS Obergruppenfuhrer Ernst Kaltenbrunner, who personally oversaw operations at a handful of concentration camps, including Mauthausen. Tall and gangling, his face deeply scarred from duels, he sat expressionless as Jackson spoke. Near him slouched Reichsmarschall Hermann Goering, chief of the Luftwaffe and a member of Hitler’s inner circle. So famously fat and self-indulgent that he was routinely caricatured in everything from Warner Brothers cartoons to Charlie Chaplin movies, Goering shed over sixty pounds in captivity and now looked alert, intelligent, and menacing.

The defendants saw the wire beneath Jackson’s feet as clearly as he did. The Nazi state, the most systematically barbarous in human history, was, in law, blameless. There had never been a successful prosecution of a head of state or state functionary for actions committed in that capacity. On the contrary, sovereign immunity dictated that governments had absolute and unlimited prerogative to fashion their own laws and carry out their own policies, however unconscionable.

That was a real conundrum. Just as the Nuremberg courtroom was fundamentally ersatz, a stage set for an elaborate play, the legal foundations of the tribunal were also quicksilver. The common law upon which the tribunal rested was constructed entirely of precedent. With no legal precedent to draw from, Jackson and the prosecution team were forced to cobble together an indictment from philosophical constructs that, while not unknown, had never been tested in law. The concept of war crimes dated to Renaissance theories of just and unjust war, yet aside from a failed attempt at Leipzig in 1919 it had never constituted a criminal charge. Crimes against humanity and crimes against peace were even more esoteric: actions that “shocked the conscience” of all humanity. What that meant in law was anyone’s guess. Was a Malawi tribesman reading of Nazi atrocities as much a “victim” as an individual who perished in the death camps or fell on the battlefield? Jackson said he was. “The real complaining party at your bar is Civilization,” he told the court. “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 was a neat bit of logic, yet the defendants still had cause to smile.

“This Tribunal,” Jackson declared, “while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories.” But of course it was. The fundamental problem was philosophical. Was law essentially the will of the state or a universal principle of justice? High-minded academics favored the latter, but the full sweep of sociopolitical history reinforced the former. One could argue that Nazism was the final and inevitable result of that positivist philosophy. The Nazis took state prerogative to its furthest extremes and thus brought humanity to the depths of utter barbarism. Jackson and others understood that if the positivist view of law prevailed, law as a construct would have no viable meaning: not justice or right or equity, but the point of a sword. That was what Jackson meant by including “civilization” among the victims: for humanity to continue, some reckoning had to be made.

Hence the Nuremberg Tribunal represented a wholesale rejection of legal positivism in favor of a universalist understanding derived from ancient principles of natural law. It stands today as a watershed moment in human history, when abstract theories debated by scholars for millennia suddenly became the foundations for a new and radically different world. The success of Nuremberg emboldened contemporaries to envision a global community operating under fixed, immutable natural law and right. They saw this not as an impenetrable future but something that could be achieved in their own lifetimes.

At the beginning, there was a powerful argument against having a tribunal at all. Compared with the unimaginable magnitude of Nazi atrocity, the image of “twenty-odd broken men” gathered in a drafty courtroom, listening with bored expressions to a translation of their crimes fed into headsets that looked like rabbit ears, seemed a feeble response. “The guilt of such individuals is so black that they fall outside and go beyond the scope of any judicial process,”[4] British foreign secretary Anthony Eden wrote in 1942—a time, it should be noted, before the worst horrors of the Nazi state had occurred. Even the solemn specter of punishment was insufficient. Commenting on the Nuremberg Tribunals much as she would later at the Eichmann trial, Hannah Arendt wrote, “For these crimes, no punishment is severe enough. It may well be essential to hang Goering, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems.”[5]

The argument that Nazi guilt eclipsed the moral and physical parameters of a criminal trial was not without merit. It referenced not merely the scope of the offense but the number of perpetrators. Indeed, over seventy years after the end of the Second World War, we are still identifying and prosecuting them. How could the crimes of thousands, perhaps millions, be fixed on twenty men? What of the others? And was that even fair to those particular defendants? A common complaint was that the men at Nuremberg were, in the words of one prosecutor, “junior varsity.” The leaders—Himmler, Goebbels, Hitler himself—were dead. Moreover, Axis guilt extended well beyond Germany’s borders. What of the Italians, or Japanese, or all the Pétains and quislings who offered themselves to the occupiers? The guilt of the Third Reich and its allies was so vast that it may never be fully known, and it certainly lay beyond the power of a single court to render justice.[6]

Yet there was an equally compelling response: that such guilt demanded the countervailing effects of a trial. Writing to President Harry Truman to advocate the tribunal, Robert Jackson invoked a theme that his good friend Franklin Roosevelt often employed: “Our test of what is legally [a] crime gives recognition to those things which fundamentally outraged the conscience of the American people and brought them finally to the conviction that their own liberty and civilization could not persist in the same world with the Nazi power.”[7] There were two powerful ideas expressed in this single sentence. First, criminality was defined as that which offends the conscience, a natural law conception that pointedly avoided issues of state sovereignty in favor of a universal norm. Second, it was the very denial of this universal law by the Nazis that demanded an American response. Neither system could live, in other words, while the other survived.

But it was much more than American conscience or conviction that was threatened by the Reich. By the war’s end, the full catalog of atrocity was so enormous that it challenged the very concept of civilization. Axiomatic to the evolution of society and law was inevitable progress, yet how could anyone in 1945 seriously believe that humanity still followed Dr. Peabody’s upward trend? “Civilization seems to have lost control of itself,” Jackson admitted. “Certainly here is lawlessness which challenges not only the lawyer but the law itself.”[8]

Justice Jackson returned to this theme repeatedly during the tribunal. “The real complaining party at the bar,” he told the tribunal in his opening address, “is Civilization.”[9] This was not bombast, but rather a reckoning with the enormity of what the Nazis had done and what had been done in response. Just as Americans had finally realized their values could not coexist in a world with Nazism, “at length bestiality and bad faith reached such excess that they aroused the sleeping strength of imperiled Civilization.” The image Jackson implicitly invoked was of a balance scale, akin to that dangling from the arm of the goddess Justitia. Every crime, however small, was an imbalance to the social order; the law existed to restore that balance. Nazi crimes had weighted down one side of the scale to such an extent that it threatened to topple over entirely. For the social order to be preserved, for humankind’s faith in its own progress to be restored, the law needed to act as a counterweight. Thus the trial was not only proper but vital. It did not need to be as sweeping or dramatic as the crimes it judged; in fact, its very banality was the bedrock of its strength. Harold Nicholson witnessed the tribunal and came away impressed: “In the courtroom at Nuremberg something more important is happening than the trial of a few captured prisoners. The inhumane is being confronted with the humane, ruthlessness with equity, lawlessness with patient justice, and barbarism with civilization.”[10] In his memoirs, Airey Neave offered an even more compelling image that deserves to be quoted in full:

The central figure at the Nuremberg Trial, from beginning to end, was not Goering. It was not Hess or Keitel, nor any of the defendants. It was Lord Justice Lawrence. This benign, balding figure dominated the proceedings for nearly twelve months. He was a staunch, enduring man, who upheld the traditions respected by the world, in those far-off days, of British justice…. Lawrence embodied in his wing collar and bowler hat the principle of a fair trial.[11]

Conceptualizing the Nuremberg Tribunal as humanity’s attempt to restore faith in itself brings it squarely within long-standing debates about natural law. Recall the ancient dichotomy between Demosthenes and Xenophon. Demosthenes writes of the law as a moral truth, “a discovery and gift of the gods, and at the same time a decision of wise men, and a righting of transgressions.” Countless scholars from Cicero to Aquinas to Coke reiterated and reinforced this image. Yet Demosthenes’ contemporary Xenophon, a student of Socrates, saw the law very differently: “Whatsoever the ruling part of the State, after deliberating as to what ought to be done, shall enact, is law.” Law is essentially amoral, the articulated and enforced will of the state. This view too has a long and distinguished history, from Plato to the positivists. “Everywhere justice is the same thing,” says Thrasymachus in Plato’s Republic, “the advantage of the stronger.” [12]

An enthusiastic proponent of legal positivism was Adolf Hitler. Between 1933 and 1945, centuries of German law were arbitrarily swept aside by Gemeinschaftsdenken, “communal thinking.” Laws passed unanimously through the Reichstag, which now existed purely as a rubber stamp, or were issued as Maßnahmen, “arbitrary measures,” and Führerprinzip, “Führer’s orders.” The Nazis called upon judges to “overcome narrow normatism” through a process euphemistically described as unrestrained interpretation. The result, as one historian writes, was “that the judiciary, because of its positivist orientation, [was] helpless in the face of a legislator freed from all constraints.”[13] It is tempting to see Nazi law as raw articulated power absent any ideological or ethical buttressing, consistent with a Nazi “philosophy” that was both inchoate and contradictory. Yet if Nazi law had existed for the sole purpose of extending and reinforcing the state’s tyrannical grip and implementing its policies, it would be hardly unique. In fact there was a legal philosophy of sorts underpinning it, the very antithesis of natural law. As Hitler explained to the president of the Danzig senate: “Conscience is a Jewish invention. It is a blemish, like circumcision…. I am freeing men from the dirty and degrading self-mortification of a chimera called conscience and morality.”[14]

A debate among scholars dating back millennia had suddenly, in 1945, assumed the dimensions of an existential crisis for humanity itself. Put simply, the Nazi state was the fullest expression of Xenophon’s principle. If there was no transcendent justice, there could be no higher authority than the will of the state. Consequently it would be up to the state to determine criminality, and it could not, by definition, be criminal itself. No state or group of states could impose their form of law on another by anything except force. Even if the Allies lined the Nazi elite up against a wall and shot them (as nearly everyone in the British, Soviet, and American governments wished at some point to do), that action would be political rather than moral. The entire political history of the world up to that point reinforced the truism that acts of state could not be criminal. Yet if that principle was allowed to stand, Nazism as an idea would triumph though the Nazis themselves had fallen.

For there to be any kind of justice, a natural law perspective had to prevail. Justice Jackson illustrated the dilemma at Nuremberg through an apt Shakespearean quotation. In his concluding address, he said of the defendants:

They stand before the record of this trial as bloodstained Gloucester stood by the body of his slain King. He begged of the widow, as they beg of you: “Say I slew them not.” And the Queen replied, “Then say they were not slain. But dead they are.” If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.

The catalog of decisions that determined the course of the Nuremberg Tribunal, most importantly the decision to hold it in the first place, collectively represents an endorsement of natural law principles by the community of nations. While it cannot be said to end the debate between naturalists and positivists, it radically altered the trajectory of international law and provided the foundation, legal and ethical, for all subsequent human rights legislation. But that ultimate decision was not foreordained, and indeed for much of the war it seemed unlikely at best. It is crucial to consider, therefore, how consensus for the tribunal was reached, and the role which natural law and its proponents played in the process.

The concept of individual responsibility under a universal code of justice was not unknown before Nuremberg, but its history was one of almost perfect failure studded with tiny glimmers of hope, glittering like mica in slag. When Nuremberg planners spoke of the “St. Helena precedent,” they referred to the singular case of Emperor Napoleon Bonaparte, whose decades-long wars made him a figure of hatred such as few conquerors in history had known before Hitler. After Waterloo, the British government moved to brand not only Bonaparte himself but also his most devoted followers as “conspirators.” The idea was designed to appeal to lawyers. It went like this: From the fall of the Bourbon monarchy to the final defeat of the Bonapartists in 1815, there existed what amounted to an illegal state. The proper government was that of King Louis XVI, which passed intact to his heirs upon his death and had never ceased to exist. Everyone, therefore, who took up arms against this rightful monarch or served any false usurper—from Robespierre to Napoleon—was part of a vast treason against France, a criminal conspiracy. It was no state at all, and therefore its members could not claim the privilege of sovereign immunity. This applied equally to the emperor, his ministers, and his officers. British prime minister Robert Jenkinson, Lord Liverpool, wrote in 1814: “It appears quite indispensable that in the event of the restoration of Louis XVIII a severe example should be made of those commanding officers…who deserted the King and went over to Bonaparte.”[15]

This would later become something of a mania for him. He began referring to Napoleon as “the USURPER,” a term which enjoyed limited currency during the wars but now became increasingly ubiquitous. Soon many within government came to share the view that the “emperor” was nothing more than a brigand who had unlawfully seized the reins of government and should meet the same fate as any traitor. After Waterloo, with Napoleon under house arrest, Liverpool drew up a proscription list with several dozen names, insisting that the only way to establish order was through bloodletting: “One can never feel that the King is secure upon his throne till he has dared to spill traitors’ blood. It is not that many examples would be necessary, but the daring to make a few will alone manifest any strength in the government.”[16]

Lord Liverpool’s solution, which read startlingly like the statements once issued by the Committee of Public Safety, was quashed by an unlikely figure: the Duke of Wellington. Now the hero of Waterloo and the most popular man in Britain, Wellington saw his former nemesis as a fellow warrior and entitled to be treated with dignity. Executing him like a common criminal might please the masses (which, for the aristocratic duke, was suspect in itself), but it was unconscionable policy. “Such an act,” he declared, “would hand our names down to history stained by a crime, and posterity would say of us that we did not deserve to be the conquerors of Napoleon.”[17] The word of the duke was enough to quash Liverpool’s schemes, though there were mutters in Whitehall that Wellington was motivated less by valor than vainglory: as the man who actually did conquer Napoleon, he preferred to see his adversary as an equal rather than a mad dog. In any event, the problem of the emperor was solved, illegally but successfully, by exiling him to St. Helena and quietly poisoning him some years later.

Declaring Napoleon Bonaparte a criminal conspirator neatly avoided troubling questions of natural law: he had violated the laws of France, and France (with Britain’s help) could judge him. Such was not the case in 1918. Kaiser Wilhelm II was heir to a throne that by tangled skeins dated itself back to the Holy Roman Empire. In other ways, however, the two sovereigns were similar. Both bore the guilt of war on their shoulders—especially in the eyes of outraged Britons. Both, moreover, had inflamed public opinion against them and were the darlings of political cartoonists. Napoleon was depicted in scatological terms squatting ominously over Europe, Kaiser Wilhelm as a voracious animal devouring the continent. “Hang the Kaiser!” became a wartime rallying cry, simpler and more satisfying than Wilson’s vague musings about making the world safe for democracy. But how, exactly, was the kaiser a criminal?

Even before the war’s end, the British government took up the task of answering this question. Attorney General Frederick Smith suggested: “We should…take the risk of saying that in this quarrel we, the Allies, taking our stand upon the universally admitted principles of moral law, take our own standards of right and commit the trial of them [the Kaiser and his General Staff] to our own tribunals.”[18] Note how Smith describes the invocation of natural law for international tribunals as a “risk.” The risk was actually threefold. Such a tribunal had never been done or even tried before, invited countercharges against Britain herself, and set a dangerous precedent for all states in the future. Little of this mattered to President Wilson, whose idealism ran in a purer vein. In his “War Address” to Congress in 1917, referencing numerous attacks against civilian shipping including the Lusitania disaster, he declared: “We are at the beginning of an age in which it will be insisted that the same standards of conduct and of responsibility for wrong shall be observed among nations and their governments that are observed among the individual citizens of civilized states.”[19]

The legal formulation of Smith’s and Wilson’s positions was a derivative of the conspiracy charge. Just as brigands remain brigands even if they seize control of the state, so too might otherwise legitimate heads of state lose their status if they committed acts that offend the conscience of humanity. After the torpedoing of the Lusitania by a German submarine, former president Theodore Roosevelt and many others labeled it an “act of piracy.” Pirates were hostis humani generi, enemies of the human race, and it was the legal duty of every state and citizen to crush them by any means necessary. At the root of “Hang the Kaiser” was not just bloodlust but a revolutionary (in both senses) concept: that there could be such a thing as criminal guilt for sovereigns, and that it could be used to distinguish the relative culpability of state actors from their people as a whole. The basis of this guilt was an offense against natural law.

Nevertheless, despite urging from Great Britain, prosecution of the kaiser languished. Ironically it was the Wilson government that balked, shelving its own idealism in favor of hastening a postwar utopia freed of Old World enmities. “I am not wholly convinced that the Kaiser was personally responsible for the war or the prosecution of it,”[20] Wilson told reporters. He instructed his secretary of state, Robert Lansing, to make this clear to the British and French. Lansing, a successful attorney and expert on international law, was horrified by the unprecedented nature of what the Lloyd George government proposed. “Restrained by a reverence for law which is inseparable from that high sense of justice which is essential to social order,” he began loftily, the United States government could not countenance a breach of the kaiser’s “immunity from suit and prosecution…according to the municipal law of every civilized country and also according to the Common Law of Nations.”[21]

In the end Kaiser Wilhelm was exiled to Doorn in the Netherlands, his own St. Helena. Germany was given the task of trying her own officers for war crimes at Leipzig. It quickly became a farce. The Turkish government, which massacred one and a half million of its Armenian citizens under cover of war, never admitted its guilt and refused to supply British prosecutors with records or divulge the whereabouts of any suspects. Three pashas who helped orchestrate the killings were convicted in absentia and then the Allied courts-martial in Constantinople officially disbanded. The Armenians took matters into their own hands; two out of three were later assassinated.

It is hard to read this catalog of failures and discern much useful precedent, but in fact there were three. First, it was possible to exempt certain heads of state from sovereign immunity if it could be convincingly shown that they usurped power illegally. They would then be guilty of treason and conspiracy in addition to whatever crimes they committed during war. The Napoleonic precedent failed not because Napoleon was an unsuitable candidate but rather due to the aristocratic intervention of the Iron Duke.[22]

Second, it was theoretically possible for heads of state to lose their immunity if their actions in time of war shocked the conscience of humanity. The example of the kaiser was reinforced by a Hague Convention signed by numerous heads of state—including Wilhelm—in 1907. Signatories bound themselves to “serve the interests of humanity and the ever-progressive needs of civilization,” even in wartime. Accordingly, “inhabitants and belligerents remain under the protection and governance of the principles of the law of nations, derived from the usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience.”[23] By signing this convention, Wilhelm voluntarily submitted his subsequent actions to the judgment of the law of nations. Not surprisingly it would be invoked during the abortive effort to place him on trial. The limiting language was “in time of war.” There was still no mechanism or precedent to hold heads of state accountable for actions taken in peacetime against their own people.

Third, it was clear by 1918 that any successful prosecution for war crimes or other crimes relating to state action required a foundation, as the Hague Convention termed it, in the law of nations, the laws of humanity, and the public conscience. In other words, a transcendent notion of justice derived from morality. It was not sufficient simply to rely on broken treaties; a treaty was a contract between nations, and thus breach meant nullification but not criminal liability. For that one needed natural law.

Taken together, the ideas of conspiracy, loss of immunity, and the “public conscience” would become cornerstones of the Nuremberg prosecution. Yet there were other legacies of St. Helena and Leipzig. The British, who had taken the lead both times, approached the issue of Nazi criminality warily, scarred by past failures. Many within the Roosevelt administration, including the president himself, had once been members of the Wilson administration that doused any plan of legal action against the kaiser. And in 1945 the issue of assigning blame would be infinitely more complex than in 1815 or 1918.

The first official response to Nazi atrocity came in January 1942, when representatives of nine occupied nations—Belgium, France, Czechoslovakia, Greece, Luxembourg, Norway, Poland, Yugoslavia, and the Netherlands—met in London and released the “St. James Declaration.” It condemned the savagery of Axis rule and declared that “the sense of justice of the civilized world” mandated that the Allies “place among their principal war aims the punishment, through the channel of organized justice, of those guilty of or responsible for these crimes, whether they have ordered them, perpetrated them or participated in them.”[24] The legal and political weight of the declaration was exactly what one might expect from a document signed by nine governments in exile at the nadir of the Allied cause.

But occupied Europe was not alone in clamoring for postwar justice. Religious groups, Catholics and Jews especially, lobbied in Britain and the United States to raise awareness of Nazi crimes and demand retribution after victory. Their effect, however, was negligible. A more significant effort was undertaken by the United Nations War Crimes Commission, formed in October 1942 to make specific recommendations on how to deal with the Nazi leadership after the war. Despite its official-sounding title, it was an advisory group only and derided by historians as weak and politically compromised. An illustrative example was the American delegate, Congressman Herbert C. Pell. Pell seemed an ideal candidate: he had already served as ambassador to Hungary and Portugal, was an old Bull Moose progressive, and belonged to the same Brahmin class of New Yorkers as the president, his close friend. Pell was also an enthusiastic proponent of the tribunal idea, even advocating charges against the Nazi state for crimes committed against its own nationals. He had previously been active on the War Refugee Board, trying to open the floodgates of American immigration to as many Jews as possible.[25]

This action earned him the enmity of the State Department, especially Assistant Secretary Breckinridge Long (another Brahmin friend of FDR’s but of Southern stock). Under Long, the State Department became a bastion of anti-Semitism and obstruction; its policy was to thwart as much Jewish immigration as possible under the thin excuse that Nazi spies might infiltrate the United States as fifth columnists. Regarding Pell as both a political and ideological enemy, the State Department delayed his departure to London for over a year, until December 1943. Upon arrival, Pell immediately drafted a proposal recommending that “crimes committed against…any persons because of their race or religion” should be punishable as war crimes. In an extraordinary rebuke, the State Department informed the British Foreign Office that Pell (an alumnus of Harvard, Columbia, and NYU) was “ignorant of law” and “difficult.”[26] President Roosevelt, as was his custom, sided with neither Long nor Pell but kept both men in place. The UNWCC would continue to meet until January 1945, but its recommendations had little effect on actual policy.

One reason for this was that there was no clear Allied policy on postwar justice, nor would there be, until nearly the war’s end. Each ally had divergent views, and even within governments there was little consensus. This produced a string of discordant pronouncements, underpinned by even more inconsistent diplomacy. In October 1942, Roosevelt declared that perpetrators of mass crimes would “answer for them before courts of law.”[27] He added that “it is not the intention of this Government or the Governments associated with us to resort to mass reprisals.” This pronouncement was seemingly reinforced by the Soviet Union, which declared that same month its abhorrence for the “abominable crimes” of the Third Reich and its commitment to postwar “courts of the special international tribunal.”[28] One month later, Ivan Maisky, Soviet ambassador to Britain, conveyed the view of the general secretary that such a tribunal must be convened for “major war criminals.”[29] Most significantly, the Moscow Declaration of November 1943 pledged the Allies to acting “without prejudice to the case of the major war criminals whose offenses have no particular geographic location and who will be punished by joint decision of the Governments of the Allies.”[30] Note that the declaration speaks of punishment, not trial. More specific language dealt with persons who had confined their crimes to a defined geographic location (for example a general on the battlefield, or a gauleiter of an occupied territory). These “will be sent back to the countries in which their abominable deeds were done in order that they may be judged according to the laws of these liberated countries.”

Yet discussions amongst the Big Three—Churchill, Stalin, and Roosevelt—took on a very different cast. Churchill’s government had rejected Maisky’s request in 1942 as “premature,” in effect buying itself time to consider the matter.[31] There was also reason to doubt Soviet sincerity. At the Tehran conference in 1943, Stalin recommended arbitrarily shooting fifty thousand German officers and state functionaries.[32] Churchill predictably exploded (indeed, that might have been the Soviet premier’s intention). It became plain that the “tribunals” Stalin envisioned would be show trials, modeled on those made infamous throughout the USSR wherein Stalin had purged his own officer corps and other branches of government.

The British position was more nuanced. Outraged as he was by wholesale slaughter and kangaroo courts, Churchill favored a compromise policy drafted by his foreign secretary, Anthony Eden. “Judicial procedure would seem inappropriate for dealing with Hitler and Mussolini,” Eden wrote, “and with a limited number of important enemy leaders such as Goering, Goebbels and Himmler…. [Trials] based on the laws of war would be reserved for the crimes committed by enemy nationals other than outstanding leaders.”[33] The implication was that Hitler and his immediate circle would be executed; lesser functionaries might be tried. Churchill himself had witnessed the singular failures of Leipzig and Constantinople. It was he, as former first lord of the admiralty, who had advocated military tribunals for WWI U-boat commanders. The memory of these legal disasters effectively stymied the British response; as the most logical and likely advocates for universal justice, they balked and were even more reluctant than the Soviets to endorse the tribunal concept for the surviving Nazi leadership.

The American position was even less defined; in effect, it was not a policy at all. In 1943, Secretary of State Cordell Hull articulated the view that “if I had my way I would take Hitler and Mussolini and Tojo and their accomplices and bring them before a drumhead court-martial and at sunrise on the following day there would be an historic incident.”[34] It is impossible to know whether this was policy or wishful thinking. Such vagaries permeated the departments of state and war, even the White House. Despite his fervor for postwar international organization, Roosevelt seemed curiously indifferent, initially, to postwar justice. Even the revelations of Nazi atrocity, while alarming, didn’t move him. The president would controversially veto several plans to bomb railroad lines into concentration camps and even the camps themselves, repeating that the only way to end Nazi brutality was to win the war as quickly as possible.

By 1943, the only person in government who had devoted a great deal of time and thought to postwar justice was Secretary of the Treasury Henry Morgenthau Jr. As a Jew, Morgenthau was one of few sympathetic audiences when Jewish refugees arrived in Washington and tried to raise awareness of the swiftly escalating crisis that became the Holocaust. It was Morgenthau, moreover, who endorsed and circulated Raphael Lemkin’s controversial book, Axis Rule. Lemkin, a Polish-Jewish lawyer and refugee, laid bare the full horror of the Nazi state by providing a compendium of its laws. Lemkin would later coin the term “genocide” and take a lead role in drafting the first UN Convention on Genocide.[35]

Unlike most of his colleagues, Morgenthau was only too willing to believe the worst of Nazi savagery. His father, Henry Sr., had served as American ambassador to the Ottoman Empire from 1913 to 1916 and was thus a key witness to the Armenian genocide. His office in Constantinople became overwhelmed with pleas and affidavits from victims seeking protection. Morgenthau, shocked and horrified, took the extraordinary step of advocating American intervention to halt the killings. When this was refused, he resigned. “I found intolerable my further daily association with men, however gracious and accommodating…. who were still reeking with the blood of nearly a million human beings.”[36] In a further breach of protocol, Morgenthau went public with his outrage, publishing an account of the atrocity in 1919.

Now it was his son’s office that was flooded with stories of unspeakable horror, and Secretary Morgenthau—an affable, ardent New Dealer and old crony of the president—hardened into a zealot. His influence on Roosevelt would be hard to overstate. Eleanor once called him “Franklin’s conscience”—a role she would often play herself—and referred to their relationship as one between brothers.[37] Morgenthau was so concerned for the president’s safety during wartime that he ordered construction of a bunker beneath the Treasury. “Henry,” Roosevelt said, “I will not go down into the shelter unless you allow me to play poker with all the gold in your vaults.”[38]

Thus, when Morgenthau in 1944 began advocating a plan for postwar Germany that envisioned destruction of nearly all productive capacity, the so-called “Ruhr plan” or “Morgenthau plan,” he found a receptive audience. Famously declaring that he wanted Germans to never again be able to build anything more dangerous than cuckoo clocks, the otherwise kindly secretary of the treasury remained unmoved at the human cost this entailed: “Why the hell should I care what happens to their people?”[39] Morgenthau also called for wholesale execution of the Nazi leadership. “A list of the arch criminals of this war whose obvious guilt has generally been recognized by the United Nations shall be drawn up as soon as possible,” he wrote. “They shall be apprehended as soon as possible and identified…. When such identification has been made the person identified shall be put to death forthwith by firing squads made up of soldiers of the United Nations.” [40]

The clinical tone of the document contrasting with advocacy of extralegal slaughter makes it difficult reading today; indeed, it sounds all too much like the kind of memoranda emerging from Berlin at the time. It is only possible to understand Morgenthau’s policy if one recognizes a man whose conscience was so outraged by the full scope of the horror—of which only he amongst Roosevelt’s cabinet was fully aware—that he truly believed it had gone beyond the law. Indeed, one extraordinary exchange suggests even the legacy of the Armenian genocide had become twisted in his mind. Beyond the execution of high-ranking Nazis there remained the problem of what to do with the rank and file. Morgenthau’s answer could have been copied verbatim from Nazi debates over the “Jewish question,” most particularly the so-called Madagascar solution. “When you get right down to it,” he told the president, “it may be a question of taking this whole S.S. group—because you can’t keep them in concentration camps forever and deporting them somewhere—out of Germany to some other part of the world. Just take them bodily. And I wouldn’t be afraid to make the suggestion just as ruthlessly as it is necessary to accomplish the act.”[41]

Defending this policy to his colleagues—the term “ethnic cleansing” did not exist in 1944—Morgenthau invoked a grotesque comparison that speaks volumes of the depths of his rage and what it had done to his soul:

I will give you people an example which I lived through in the eyes of my father. One morning the Turks woke up and said, “We don’t want a Greek in Turkey”…. Now, whether it is one million, ten million, twenty million, it still has got to be done. A whole population was moved…. If you can move a million, you can move twenty million. It seems a terrific task, it seems inhuman; it seems cruel. We didn’t ask for this war; we didn’t put millions of people through the gas chambers. We didn’t do any of these things. They have asked for it.[42]

Initially, the Morgenthau plan found general favor in the administration. Even Eleanor Roosevelt, according to Morgenthau’s notes, approved. “It doesn’t bother her at all,” he recorded. “She said, �Put the thing under lock and key and shut it down completely.’ ”[43] As late as August 1944, secretary of war Henry Stimson noted in his diary after a meeting with the president that “if shooting is required it must be done immediate, not postwar.”[44] Momentum for the Morgenthau plan continued to build, reaching its climax at the Quebec Conference in September 1944, which resulted in a solid endorsement of the policy by both Roosevelt and Churchill. In fact, British policy had remained unchanged since 1941; it was Roosevelt who had seemingly evolved from insisting on postwar tribunals to allowing summary executions. One cannot fault Morgenthau entirely for this. Like the treasury secretary, the president also received intelligence on the catalog of horrors committed by the Nazis. It is quite likely that he too saw justice as well as expediency in the firing squad. Churchill’s initial opposition to the Morgenthau plan was not for its treatment of the Nazi elite, but rather ordinary citizens. It would be, he said, like “chaining ourselves to a dead German.” Morgenthau admitted, “I have never had such a tongue lashing in my life.”[45] But in the end, the prime minister acquiesced.

The central figure in the ensuing drama was Stimson. Hollywood typecasting could not have come up with a figure more diametrically opposite to Morgenthau. Aside from their first names, New York roots, and prominent positions in the Roosevelt administration, the men had nothing in common. Stimson was a Republican who despised the New Deal, a close friend of both the late Theodore Roosevelt and William Taft, and had served as both secretary of war and secretary of state under Republican presidents. Prim, contained, correct, and rather cold, Stimson was a Harvard-educated lawyer who thought like a judge. Unlike Morgenthau, he was not a friend of the current president. Stimson came to respect Roosevelt but remained critical of his abilities and motives. In his diary he frequently derided the president as “impulsive” and “lacking steadiness and balance.”[46]

The secretary of war’s response to Nazi atrocity was markedly different. While writing frequently of war crimes (a subject Morgenthau rarely touched upon), there is scant reference in his copious diaries to the plight of Europe’s Jewry. He had allied with the State Department in opposing Jewish immigration and regarded most social issues of race, class, religion, and civil rights as so much wasted time. On the question of desegregating the armed forces and allowing African Americans to become commissioned officers, he wrote in his diary: “Leadership is not embedded in the Negro race…. I hope for heaven’s sake they won’t mix the white and colored troops together in the same units for then we shall certainly have disaster.”[47]

It is possible, even likely, that Stimson’s opposition to the Morgenthau plan stemmed in part from his animus to Morgenthau personally and Jews generally. Calling the plan “Carthaginian”—a neat and very Ivy League allusion to the Roman destruction of Carthage—Stimson concluded brutally: “It is Semitism gone wild.”[48] Indeed, studying the characters of Stimson and Morgenthau and their respective stances on international tribunals, one is reminded of the famous depiction of the Puritan Roundheads and Royalist Cavaliers in the historical satire 1066 and All That: Roundheads were “Right But Repulsive,” while Cavaliers were “Wrong But Wromantic.”

Naturally there was more to it than that. Stimson’s detachment from the horrors of the Holocaust (indeed from most human passions) allowed him to frame the issue of Nazi guilt as a legal rather than strictly moral one, and thus kept him free from the morass of relative barbarism that had mired Morgenthau. Only a mind of prodigious sangfroid could assess the full panoply of Nazi atrocity and see a parallel to antitrust suits against American sugar manufacturers. “In many respects,” Stimson wrote, “the task which we have to cope with now in the development of the Nazi scheme of terrorism is much like the development of big business.”[49] The key word was “scheme.” He believed that the whole story of the Nazi state could be rewritten as a vast criminal conspiracy—just like the trusts. As anachronistic as this might sound, it had the advantage of placing Nazi crimes within the framework of existing law. In other words, the scope of the Nazi conspiracy might be unprecedented, but the crime itself was not.

There were limits to dry legalistic thinking.[50] Whereas Morgenthau built his case for retribution on the Holocaust, Stimson doubted whether such crimes could be brought to trial at all: “I have great difficulty in finding any means whereby military commissions may try and convict those responsible for excesses committed within Germany both before and during the war which have no relation to the conduct of the war.”[51] Labeling the Final Solution as “excesses” was certain to make Morgenthau’s blood boil, but Stimson’s reasoning was not as callous as it sounds. There was no need, he thought, to add additional charges to the indictment; Nazi guilt could be proved tenfold on the basis of war crimes alone. By framing the indictment around conspiracy and war crimes, Stimson was also placing it on relatively solid ground under the law of nations. Recall that the examples of Napoleon and Kaiser Wilhelm II, though failures, nevertheless introduced the twin concepts of conspiracy and individual responsibility for heads of state. The secretary of war, well versed in international law (and an eyewitness to the failed attempts at justice in 1919), implicitly referenced these precedents in his proposed tribunal.

Stimson was also genuinely appalled at the prospect of American soldiers murdering persons in cold blood. The enthusiasm of the Soviets for this policy was another mark against it.[52] Finally, crucially, he sought counsel from many of the same legal scholars who had been pressing President Roosevelt for a charter of human rights and international tribunals; two sides, as they saw it, of the same coin—namely, the restoration of the rule of law under universal principles. Among these were Professor Quincy Wright and Myron Cramer, the judge advocate general. The result was to embolden Stimson’s legalist position and flesh it out with a wealth of precedent steeped in natural law. In the end, Stimson came to regard the tribunals as a reflection of not only universal justice but the United States’ singular role in fostering that justice through action and example. He wrote to the president:

Under the plan proposed by Mr. Morgenthau, the so-called arch-criminals shall be put to death by the military without any provision for any trial and upon mere identification after apprehension. The method of dealing with these and other criminals requires careful thought and a well-defined procedure. Such procedure must embody, in my judgment, at least the rudimentary aspects of the Bill of Rights.[53]

Stimson was shrewd. By invoking the Constitution he was implicitly reminding Roosevelt of the president’s own frequently stated desire to restructure the postwar world on the legal model of the United States. Here, Stimson appears to say, is their chance. Moreover, as the Bill of Rights itself was predicated on Enlightenment concepts of natural law (which were themselves derived from Renaissance and classical models, and so on), the secretary effectively placed the tribunal alongside other historical landmarks of jurisprudence. If it was the first of its kind, that did not mean it broke entirely new ground—not if one presupposed an immutable standard of justice. “There was, somewhere in our distant past, a first case of murder,” Stimson argued, “a first case where the tribe replaced the victim’s family as a judge of the offender…. New decisions do not become ex post facto law merely because until the punishment comes, a man’s only warning that he offends is in the general sense and feeling of his fellow men.”[54]

Stimson was not alone in advocating a natural law solution. Nuremberg prosecutor Telford Taylor would later describe the tribunal’s earliest proponents as “a group of New York lawyers,”[55] and he was not wrong. Aside from Stimson, and eventually Justice Robert C. Jackson, the two most significant members of the New York cabal were Murray Bernays and Sam Rosenman. Bernays, a Lithuanian Jew and successful trial lawyer, had, as one author described, “a streak of mysticism in him” and “adopted the belief that the Nazis represented a barbarian reaction and were attempting to destroy the structure of the western world.”[56] Bernays occupied a curious ideological position halfway between Stimson and Morgenthau. Like the latter, he too had read an advance copy of Lemkin’s Axis Rule and felt deep outrage—as a Jew and as a human being—at Nazi perversion of law. Yet like Stimson, he saw the trial as a means of reestablishing order: not just retribution, but the salvation of civilization itself. Bernays developed Stimson’s idea of conspiracy well beyond sugar trusts. If one could argue that the Nazis had been a criminal organization prior to 1939, then the clock of its criminal culpability could begin before the war—in fact it would begin the moment the Nazis seized power. He drafted a proposal along these lines in September 1944 titled “Trial of European War Criminals” and submitted it to Stimson, who forwarded it with his recommendations to Attorney General Francis Biddle.[57] Biddle, in turn, put his seal of approval on the plan and sent it to the president.

The timing of the memorandum was significant. The Quebec Conference had occurred that same month, committing Britain and the United States to the Morgenthau plan. But details of the plan leaked and public opinion soured. Despite a general desire to exact vengeance on the Nazis (“Torture them to a slow and awful death,” one letter to the White House advised), the American people were less inclined to inculpate the German people as a whole. FDR never explicitly revoked the Morgenthau Plan—he rarely explicitly changed course on anything—but rather let it wither on the vine. In January 1945, he wrote to Secretary of State Edward Stettinius:

Please send me a brief report on the state of the proceedings before the War Crimes Commission, and particularly the attitude of the U.S. representative on offenses to be brought against Hitler and the chief Nazi war criminals. The charges should include an indictment for waging aggressive war, in violation of the Kellogg Pact. Perhaps these and other charges might be joined in a conspiracy indictment.[58]

This would be Roosevelt’s only written instruction on the Nuremberg Tribunal. The “US representative” was of course Herbert Pell, who had languished in the political wilderness for almost two years. Until now, as far as Roosevelt was concerned, neither Pell nor the UNWCC even existed; suddenly he was being asked to make specific recommendations for the indictment. The reference to the Kellogg Pact (the Kellogg-Briand Pact of 1928, which outlawed aggressive war) and charges of conspiracy make it clear that both Bernays’s and Stimson’s recommendations had reached FDR’s desk. The memo was likely written at the instigation of presidential adviser Sam Rosenman, the same ubiquitous figure who drafted most of FDR’s speeches and had been a key advocate for human rights. Rosenman was also a judge and by December 1944 had become the president’s point man on all issues relating to war crimes and postwar justice. Despite his Jewish heritage, he was vehemently opposed to the Morgenthau plan and became a crucial ally of Stimson and Bernays. It was Rosenman who would eventually approach Supreme Court justice Robert Jackson and formally invite him to lead the prosecution at Nuremberg. Mindful of the disasters of the First World War, FDR told Rosenman, “This time let’s get the trials started quickly and have the procedures all worked out in advance. Make the punishment of the guilty swift.”[59]

Two weeks after his letter to Stettinius, Roosevelt received a response signed by the secretary of state and attorney general Francis Biddle. Biddle, whose support had likewise been crucial in the formative months of the tribunal proposal, would serve as the American judge on the Nuremberg panel. The memorandum was clear and concise, representing the combined views of Stimson, Bernays, Rosenman, Biddle, and Jackson—the New York cabal: “After Germany’s unconditional surrender the United Nations could, if they elected, put to death the most notorious Nazi criminals, such as Hitler or Himmler, without trial or hearing. We do not favor this method…. We think that the just and effective solution lies in the use of the judicial method.”[60]

Roosevelt agreed and pressed this view at the final conference of the Big Three at Yalta. Eventually both the British and the Soviets reluctantly signed on; the liberated French would join as well. By April 1945, the Allies had committed themselves to the first international tribunal under natural law.

The complete record of the Nuremberg Tribunal is over a hundred thousand pages long. Even one prosecutor’s “comprehensive” account runs two volumes and nearly sixteen hundred pages. In both documents philosophy is largely eschewed in favor of a more workmanlike civil procedure. Yet the presence of natural law permeates the whole, most especially in how each of the principal characters, from the prosecution to the judges, conceived the trial.

Robert Jackson had been an enthusiastic proponent of the tribunal long before he was asked to serve as prosecutor. In 1941 he opened an address to the American Bar Association with a prayer: “Grant us grace fearlessly to contend against evil, and to make no peace with oppression; and, that we may reverently use our freedom, help us to employ it in the maintenance of justice among men and nations.” In this early address, Jackson evinces a prescient understanding that the crimes of the Nazi state could be addressed only by invoking natural law. “Lodged deeply in the culture of the world, unaffected by the transitory political structures above it, is a bedrock belief in a system of higher law.” Yet its presence did not guarantee its use. The American people were too complacent and trusting, in his view, that their ideals would naturally triumph—even absent any effort on their part. Jackson wasn’t so sure. Quoting Oliver Wendell Holmes, he reminded his audience that the proper test of the law was whether it dealt justly and efficiently not with the moral man but rather the bad. “The world is in war today chiefly because its civilization had not been so organized as to impress the �bad man’ with the advisability of keeping the peace,” he warned. “Five years of this sort of thing the world now witnesses and twenty centuries of civilization will not be worth a damn.”[61]

In the struggle to save civilization, lawyers’ quibbles over nulla poena sine lege (“no punishment without law,” or no retroactive criminal prosecution) seemed pettifogging. Yet the problem remained. Jackson, well in advance of Bernays or Stimson, addressed this issue in a second speech, given in Havana. Natural law as understood in common law societies meant constant evolution expressed through cases. The law was never static, and each case, while resting on the principles of its forebears, was nevertheless original. If the common law outstripped its own mechanisms of adjudication, that simply meant the mechanisms needed to be brought up to speed: “In the evolution of the law we advance more rapidly with our concepts of substantive rights than with our machinery for their determination. Rough justice is done by communities long before they are able to set up formal governments.”[62] The international community had lagged in creating a mechanism necessary to deal with Nazi crimes. But that did not, could not mean it was prohibited from doing so. Jackson’s understanding of the law of nations thus freed it from what Telford Taylor described as “a slavish positivism that would emasculate international law.”[63] If basic principles of justice had been violated, the law required that they be addressed, even if it meant creating a court anew.

Justice Jackson addressed this point emphatically in his opening address for the prosecution. To the charge that the tribunal was invalid since nothing like it had existed before, he answered:

It is true of course, that we have no judicial precedent for the Charter. But international law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law…. The fact is that when the law evolves by the case method, as did the common law and as international law must do if it is to advance at all, it advances at the expense of those who wrongly guessed the law and learned too late their error.[64]

Jackson thus presents the law of nations as an organic construct, evolving in tandem with the common law because they are both derived from the same immutable natural law principles. High in the rafters of the Palace of Justice, one of the silent stone auditors would have been well satisfied. Construction crews sent in to restore the building in preparation for the tribunal noticed that while shrapnel had destroyed nearly all the classical statues that once lined the lintel above the great stone archway, one remained: Hugo Grotius.[65]

Aside from the novelty of the tribunal, there remained the novelty of the law. This was a thornier problem. The cornerstone of the Nazi defense was that their “crimes” under international law were not crimes at all, as no such law existed when they were committed. Jackson’s initial response was withering: “It may be said that this is new law, not authoritatively declared at the time they did the acts it condemns, and that this declaration of the law has taken them by surprise. I cannot, of course, deny that these men are surprised that this is the law; they really are surprised that there is any such thing as law.”[66]

Yet the conundrum remained. If the tribunal was to be an exemplar of justice under the common law, it had to respect and follow the whole of that law’s injunctions; prosecutors could not cherry-pick which to hold sacrosanct. One of those principles was that no defendant could be charged with a crime ex post facto. How could the tribunal claim to be following ancient rules of justice yet willingly flout sovereign immunity and put men on trial for “crimes” that no one had ever been charged with before (war crimes, crimes against humanity, crimes against peace) under “laws” that were little more than a loose collection of international covenants?

“Of course,” Jackson answered, “it was, under the law of all civilized peoples, a crime for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding fire arms to bare knuckles, made it a legally innocent act?”[67] Expanding on this theme, he referenced the ancient debate of whether sovereigns were under the law. A positivist reading would argue the negative: if the state creates the law, it cannot be itself beneath the law. A universalist understanding, however, bound both sovereign and subject to the same code of justice. Just as John Locke reasoned that kings could break faith with their people by disobeying the natural law, Robert Jackson applied the same argument to the Nazis—using the same historical example: “The Charter of this Tribunal evidences a faith that the law is not only to govern the conduct of little men, but that even rulers are, as Lord Chief Justice Coke put it to King James, �under God and the law.’ ”[68]

That was fine, but neither Locke nor Coke had ever suggested or envisioned that another state would intervene to hold the sovereign accountable. Yes, that was novel, Jackson admitted, but it was also necessary. Leipzig had shown that the vanquished could not always be relied upon to judge themselves. Moreover, the scope of Nazi criminality meant that there were virtually no neutrals left. The position of the English people vis-à-vis King James II, or the barons and King John, was directly comparable to that of the whole of humanity and the Nazis. The Reich’s actions had transcended the barriers of state, placing themselves on one side of the scales of justice and all of civilization on the other:

But if it be thought that the Charter, whose declarations concededly bind us all, does contain new law I still do not shrink from demanding its strict application by this Tribunal. The rule of law in the world, flouted by the lawlessness incited by these defendants, had to be restored at the cost to my country of over a million casualties, not to mention those of other nations. I cannot subscribe to the perverted reasoning that society may advance and strengthen the rule of law by the expenditure of morally innocent lives but that progress in the law may never be made at the price of morally guilty lives.[69]

Yet reliance on common-law understandings of justice was not without its pitfalls. Pointing disparagingly at the sullen figures in the dock, Jackson said of them: “Merely as individuals their fate is of little consequence to the world. What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power.”[70] But trials determine the guilt of persons, not symbols. This was precisely Hannah Arendt’s critique of Nuremberg and even more emphatically of the 1961 Adolf Eichmann trial in Jerusalem. If the defendant represents something greater than himself, it is no longer possible to grant him presumption of innocence. He must on the contrary be judged as an individual and only answer for those crimes that he himself has committed. Reducing Nazi culpability down to a handful of defendants, however high their rank, risked absolving countless others whose guilt was almost if not equally great. Moreover, investing each of the Nuremberg defendants with symbolic status risked turning the entire tribunal into a show trial—precisely what the Nazis themselves claimed. This critique would come to haunt nearly every subsequent tribunal for crimes under international law, up to the present day.

Perhaps cognizant of the scores of academics and jurists whose efforts had led to the creation of the tribunal, and anxious that it not be seen as simply a deus ex machina for natural law proponents like Quincy Wright, Justice Jackson opened his address by pointedly distancing himself from them. Yet natural law was referenced in nearly every account of the trial by those that helped create and administer it. Professor Wright himself, who served as chief adviser to the American judge, Francis Biddle, and is credited with educating him on the intricacies of international law, summarized it thus:

Opinion is coming to realize that international law cannot survive in the shrinking world…if sanctioned only by the good faith and self help of governments. Sanctions to be effective must operate on individuals rather than on states. But regularly enforced world criminal law applicable to individuals necessarily makes inroads upon national sovereignty…. The United Nations in the Charter of the International Military Tribunal, as in the Charter of the United Nations, performed an act of faith in, and commitment to, a law governed world and the principles which must be accepted and applied if there is to be such a world.[71]

Wright’s conception of Nuremberg was reinforced by the participants themselves. “The fundamental purpose of the trial,” wrote Chief Justice Sir Geoffrey Lawrence, “was not only the punishment of those who were guilty but the establishment of the supremacy of international law over national law.” In other words, natural over state law. The prosecution team was even more sweeping in its conception of the trial’s impact. “A landmark for the progress of man,” American prosecutor Thomas J. Dodd described it.[72] “A desire of mankind for progress and to prevent recurrence of calamities suffered,”[73] declared Soviet prosecutor general Roman Rudenko. “It gives warning for the future, to dictators and tyrants masquerading as a state that if…they debase the sanctity of man in their own country they act at their peril, for they affront the international law of mankind,”[74] said British prosecutor Sir Hartley Shawcross. There could be no question that the trial represented a commitment to reestablishing humanity on the “upward trend” toward utopia, under a universal natural law.

Jackson himself recognized this. “It is common to think of our own time as standing at the apex of civilization,” he told the court. “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 the first…. 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.”[75]

It was an accident of history that the United Nations Charter and that which created the Nuremberg Tribunal should both emerge from the San Francisco conference, the same one Franklin Roosevelt spent the last few hours of his life planning. But in another sense the confluence of circumstances was foreordained. Justice Robert Jackson’s son William, a formidable legal mind in his own right, put it best: “It is perhaps not commonly apprehended that the principles of Nuremberg…go hand in hand with the organization of the United Nations as the twin foundations of an international society ordered by law.” Without Nuremberg, as we shall explore in the next chapter, there would have been no impetus or consensus on human rights. Without the New York cabal and their dogged emphasis on natural law, there would have been no Nuremberg.