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The Law of Nürnberg, or the seeming lack of it, worried many a worrier. Nobody had formulated the doubts very well. But they existed: Justice Jackson's whole statement to the Court was an attempt to meet them. He bluntly said that the charter of the Nürnberg tribunal, completed three months after V-E day, was the ex-post-facto law on which the trials were based. He cited some precedents for the master charge (the unratified Geneva Protocol of 1924, the Kellogg-Briand Pact, various League of Nations declarations treated aggressive war as an international crime). But, with more courage than legal logic, Jackson faced the basic fact: "It may be said that this is new law, not authoritatively declared at the time they [the defendants] did the acts it condemns. ... 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. . . . Their program ignored and defied all law."
The Ultimate Step. Prosecutor Jackson defended this pragmatic approach on the pragmatic ground that the end justified the only practicable means. In the prosecution view, the object of Nurnberg was not merely to punish these particular offenders, but to evolve from their trials a body of effective international law against all aggressive war. Said Jackson:
"International law . . . if it is to advance at all, advances at the expense of those who wrongly guessed the law and learned too late their error. I am not disturbed by the lack of judicial precedent for the inquiry we propose to conduct."
For his final justification, he had to turn back to the weakest point in his brief. Said he to his U.S. British, Russian and French colleagues: "The ultimate step in avoiding periodic wars ... is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law . . . must condemn aggression by any other nation, including those which now sit here in judgment."