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.
On further reflection I have come to the view that the points stated in the last paragraph are not conclusive. I am now persuaded that in the formative period of international law it is just for a representative group of power retroactively to label as criminal, conduct which, when it occurred, was universally regarded as a serious violation of generally accepted international standards and treaties. To put it in a single sentence, the reasons for my change are that the failure of the international community to attach the criminal label to such universally condemned conduct would be more likely to promote arbitrary and discriminatory action by public authorities and to undermine confidence in the proposition that international agreements are made to be kept, than the failure of the international community to abide by the maxim that no act can be punished as a crime unless there was in advance of the act a specific criminal law.
It is a choice of evil. And I do not claim that my present belief can be proved to be correct. Essentially it is what the philosophers would call a value judgment based on these considerations. If the powers had not agreed upon a rational formula for indicting those who planned World War II, it is highly probably that either some state or some unauthorized individuals would arbitrarily and perhaps even ruthlessly have undertaken the punishment of capriciously chosen Nazi chieftains. If the treaties against aggression which had been negotiated prior to World War II were treated as mere statements of intention, then post-war treaties against aggression, no matter how precisely drafted, would have been regarded as imperfect obligations.
But, regardless of its provability, the scale of values which now seems to me sound puts repugnance to retroactive legislation in a less important place than repugnance to leaving unpunished serious violations of standards universally recognized by the international community and embodied in treaties and like international obligations. To guard against misapprehension, I should reiterate that the scale applies only to grave departures from standards that have been widely and formally accepted, and only when the conduct arises in the international field where and while the organs of the international community are so undeveloped and are so intermittent in their functioning that it is impractical to expect the declaration of criminality to be made in advance of the conduct.
Thus it now seems to me to have been "just," and even probably under some civilized systems of law even "legal," to have charged the defendants with the crime of aggressive war. But, in candor, I must add that I am not satisfied that it was "legal" under American law. I can best express my reservation by example. Suppose that Hess had been brought to the United States and had been here charged with, tried on, and convicted of only the crime of aggressive war by a military tribunal created by the President with or without the cooperation of other nations; and suppose that, having been sentenced to jail in the United States, he, like Yamashita, had sought a writ of habeas corpus form a United States judge. Would he not have had a right to be released on the ground that he was held in violation of the ex post facto clause of Article I, Section 9, of the United States Constitution? That is, does not the United States Constitution put at the very front of its scale of values a ban on retroactive criminal laws?
Before turning to the next topic, I should note parenthetically that some persons who shared my original view, that before the Nuremberg trial there was no substantive "crime of aggressive war," say that even after the Nuremberg trial they do not know what the crime is, because the victorious powers and their court have not defined the crime of which the defendants were adjudged guilty. To them the verdict implies no more than the proposition that the victors are empowered to punish the vanquished. They say that there is no definition as to when a war is "aggressive" and that there is no rule laid down for distinguishing between the organizers and the participants in such an aggressive war.
To this the answers are that the definition of "aggressive," like other legal terms, will acquire content by exemplification; and the full meaning will become clear only after sufficient cases have been brought before and adjudicated by competent tribunals. It may be difficult at some future time to determine whether a particular war is an aggressive war, but there was no difficulty in deciding that the Nazi war was an aggressive war, since it would be generally conceded that the term "aggressive war" at its least includes a war like the Nazi war, which is begun by an attack by those who do not themselves believe that they are in danger of immediate attack by others. And although it may be difficult to say how far down the line of command responsibility goes, responsibility certainly extends at least to those who, knowing there is no danger, both plan and direct the unwarranted attack.
These answers would have been more evident if it had not been for the almost absurd citations of Grotius and other jurists made by some supporters of the Nuremberg proceedings. These supporters often seem to argue that Grotius said (which, of course, he did not) that those who kill in the course of a war commit a legal crime unless the war is a just war; and that where a war is unjust, those who engage in it and kill their fellow men are murderers. Grotius's definitions of just and unjust wars refer primarily not to mundane but to divine justice. And he did not describe—few sensible people would describe—as murderer the common soldier required to kill his enemy in the course of an unjust war. Neither Grotius nor the powers who drafted the Nuremberg charter nor the judges or prosecutors who participated at Nuremberg have termed criminal those men who merely fought in a war not of their making.
Having shown why I now believe "the crime of aggressive war" is properly regarded as a substantive offense, I turn to the next doubt which has disturbed me: that is, whether that crime should have been tried before a tribunal composed exclusively of judges of the four major victorious powers. Was it a proper forum?
No one who has read the recent decision of the Supreme Court of the united States in the Yamashita case will find difficulty in concluding that it was according to law to try the defendants in a military rather than a civil tribunal and to try them before judges who were drawn exclusively from the victorious powers. But that conclusion leaves unanswered certain other questions.
While, so far as I am aware, it was legally unobjectionable to have the defendants tried by an English judge or a French judge or an American judge, or any combination of them, can we fairly say it was unobjectionable to have the defendants tried by a Russian judge on the *particular* charge of aggressive war which was presented? Did not the charge refer to an aggressive attack on Poland? And (while deeply sensible of the later horrible sufferings the Russians underwent from an unprovoked attack by Germany on Russia itself) can we say that the Russians (who in advance were apprised of the proposed German attack on Poland and who participated in the division of the spoils resulting from that attack) were suitable persons to participate in judgment upon the charge that the Germans aggressively attacked Poland? This is not an issue (as it is sometimes supposed to be) whether it is just to prosecute one group of criminals (Germans) and not another (Russians). It is the simper issue whether an apparent confederate is to sit in judgment on an alleged criminal.
While it was not legally necessary to have invited neutrals and even distinguished anti-Nazi Germans to sit in judgment at the trial, would it not have been politically wiser to have done so, since the type of issues raised by a charge of the crime of aggressive war, unlike the issues raised by a charge of strict war crimes, are so susceptible of national bias? Would not a tribunal which included some judges free of any connection with the victims of the aggressive attack have furnished a sounder precedent?
To these questions the usual, but not entirely satisfactory, answers are that the authors of the Nuremberg procedure believed that distinguished neutrals would not accept appointment, and that the Russians would not have sat with neutrals.
Two other political, rather than legal, questions remain. First, was it desirable to include this charge in the Nuremberg indictment when there were enough other charges of a more orthodox character upon which the defendants were being tried and were likely to be hanged? Second, was it better to have these defendants tried before a military court or to have them disposed of by a more summary executive procedure?
If the defendants had been tried solely on the grounds that they had engaged in war crimes in the strict sense and in crimes against humanity, the practical result for the men in the dock at Nuremberg would (with the single exception of Hess) have been precisely the same as it actually turned out to be. Hess is the only defendant who was convicted of the crime of aggressive war and the crime of conspiracy but was not convicted of other crimes as well.
Moreover, if the defendants had been tried solely on the grounds that they had engaged in war crimes in the strict sense and in crimes against humanity, there would from the outset have been a far greater degree of unanimity of professional opinion in support of the Nuremberg trial.
There were, however, countervailing considerations, which could well be thought more significant. If the defendants were charged only with the strict war crimes and not with the crime of aggressive war, it would have deeply offended the public sense of justice, for the public regarded the planning of the war as the greatest of crimes. To the general public it would have seemed grossly inappropriate to punish Goring only for killing a few named individuals, and not for starting a war in which millions were killed.
Furthermore, if the powers had not included in the Nuremberg indictment a charge that the defendants had committed the crime of aggressive war, not only would they have missed the opportunity to establish the doctrine that there is a world law against aggressive war, but their very silence and timidity would have weakened the force now, and perhaps for all time, of such declarations as had heretofore been made that aggressive war was outlawed.
There remains for discussion the problem whether it would have been politically wiser to have dealt with the Nuremberg defendants by a proceeding that was not judicial but frankly executive.
Before the Nuremberg trial began, those who, like myself, originally opposed a judicial proceeding stressed the following points, among others. There was a grave danger that the trial itself could not be conducted in an orderly way. The memories of the disturbances of the Laval treason trial and the Washington sedition trial were fresh in men's minds. There seemed no likelihood that the trial would be so arranged that the defendants would be given adequate opportunity to produce evidence and to examine and cross-examine witnesses. There was skepticism as to whether any defendant had a chance to be acquitted, particularly since it appeared that the tribunal might start with a presumption of guilt rather than a presumption of innocence. And it was feared that the tribunal would focus on the propaganda aspects of the trial and would be unduly concerned with the effect of the trial upon the public opinion of the outside world. Cumulatively, these considerations made many commentators doubtful whether the court could act as a court should act. And—though this was less important—it made commentators fear that the trial instead of persuading the Germans of today or tomorrow that our side was just, would persuade them that we were hypocrites disguising vengeance under the facade of legality.
To avoid such dangers, these critics suggested that victorious powers should frankly state that for reasons which would be announced to the world, and which would include a recital of the wrongs the defendants had perpetrated and the menace they still presented, the powers proposed to deny them further liberty and, if necessary, to take their lives. Before such announcement was put into effect, the persons named for punishment would have an adequate opportunity to present any evidence they had that they had been erroneously named or charged with wrongdoing. It was believed that a course so drastic and so plainly premised on an exceptional situation would never be thought, as a trial might be thought, suitable for incorporation in the permanent fabric of domestic systems of justice.
Now that the trial has been held, many of these forebodings are shown to have been wide of the mark. Judged as a court trial, the Nuremberg proceedings were a model of forensic fairness. Lord Justice Lawrence and his associates acted with dignity and firmness and with eyes directed only to such matters as judges ought to consider.
Moreover, the very length of the trial has shown that those who originally favored a summary proceeding had overestimated the knowledge which the Allies had in advance of the trial. A year ago they did not have the specific information necessary promptly to prepare a reliable recital of who were the chief offenders and what were their offenses. Indeed, if it had not been for the trial and the diligent efforts of the staff of able lawyers and investigators, acting promptly and in response to the necessities of legal technique, the important documents in which the defendants convicted themselves might never have been uncovered. Thus the trial gave the victorious powers the adequate record which they required for proper disposition of the defendants and simultaneously gave historians much of the data which the world will require for proper evaluation of the causes and events of World War II.
But the outstanding accomplishment of the trial which could never have been achieved by any more summary executive action, is that it has crystallized the concept that there already is inherent in the international community a machinery both for the expression of international criminal law and for its enforcement. The great powers of the world have agreed that it is in accordance with justice for a group of nations to establish on an ad hoc basis a tribunal, first, to review the state of world opinion on conduct, in order to determine whether that conduct, when it occurred, was so universally condemned as an international wrong that it can be called a "crime"; and second, to apply that determination to individuals.
No doubt such an ad hoc method is not satisfactory as a covenant made by all the powers in advance of wrongful conduct—a covenant describing such conduct, fixing the tribunal which shall try offenders and fixing the penalty which shall be imposed. But until the world is prepared to follow the more satisfactory method, it has every reason to be profoundly grateful to Mr. Justice Jackson and his associates, who, in the face of enormous practical difficulties and widespread theoretical criticisms, persisted until they demonstrated the justice of the ad hoc method adopted at Nuremberg.
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