In the April *Atlantic Monthly* I raised doubts as to certain aspects of the then uncompleted Nuremberg trial. Since that time I have had a chance to profit from comments of Mr. Justice Jackson, Professor Sheldon Glueck, Professor Max Radin, Professor Lon Fuller, an anonymous contributor to the July, 1946, *Law Quarterly Review*, and other writers; I have also read reports of the trial and have studied a summary of the judgment. This further investigation has led me to resolve some of my earlier doubts, and I hope that if I state my own change of views I may contribute to the thinking of others who are concerned about the great questions raised by this trial.
The doubt which seemed to critics of the Nuremberg trial most fundamental was whether the defendants could properly be held to answer a charge that they had engaged in "the crime of aggressive war." Was there any such substantive offense?
Many who replied affirmatively contended that "the crime of aggressive war" was no different from the specific war crimes (such as killing a captured enemy civilian) that had been defined in the Hague Convention of 1907. That is, they argued that waging an aggressive war was a crime that had been outlawed by a specific treaty or treaties; and that individuals who engaged in such conduct, like individuals who engaged in the slaughter of captured civilians, were triable by any tribunal established for the occasion by a warring power, and were punishable by any penalty prescribed for the occasion by that power.
That argument seems to me unsound. It does not seem to me that an examination of the pre-war treaties, conference proposals, diplomatic correspondence, and juristic writings shows that there was a specific international covenant that individuals who waged an aggressive war were criminals in the same sense that there was a specific international covenant that individuals who killed captured civilians were criminals.
But it is not sufficient to stop with that purely analytical approach. There remains this inquiry: Is it just to declare, after hostilities have begun, that planners of an aggressive war are criminal?
Those who believe that it is, make a twofold contention. First, they say that when these defendants planned this war both they and everyone else would have admitted that the planning of aggressive war was a violation of standards which, whether or not they had been formulated like the Hague conventions, were universally accepted by the international community in treaties and otherwise; and that no one should be surprised to see such deliberate violations stamped as criminal. Second, they say that international criminal law in its present almost primitive state is similar to early domestic criminal law, and therefore requires not only the application of enacted law and of judicial precedent, but also the retroactive declaration of new law.
At first I was shocked by those contentions. I was prepared to assent to the statement that the defendants deliberately violated standards which had been widely accepted. But I hesitated to concede that any state or group of states should have the power retroactively to affix the additional label "criminal" to conduct which, when it occurred, was commonly regarded only as a violation of accepted standards and of treaties. It seemed to me that to allow such retrospective labeling opened the door to an arbitrary selection of offenders. It struck at the roots of constitutional limitations on power and contradicted the teachings of the philosophers of liberty. Moreover, while I was prepared to assent to the proposition that some topics in international law could be, and had been, developed by judicial tribunals declaring the law retroactively, I was not aware that the particular branch of international law which dealt with individual crimes had ever been thought to be susceptible of retroactive codification by judges or by states.