Contents - Constitutional Court of Georgia

152
Michael J. Glennon
trials were unprincipled. Law was created ex post facto to suit the passion and clamor of the time.” 22
In his autobiography, Justice Douglas elaborated:
The difficulty with those trials was twofold: (l) By American standards, ex post facto laws are
banned, and there was at the time no clear-cut crime of waging “an aggressive war.” True, sharp
lawyers could spell it out from treaties and conventions. But criminal law by our standards must
be clear, precise and definite so as to warn all potential transgressors. No international ban on aggressive
war had that precision and clarity. (2) The ban against “aggressive war” levied a penalty
against the loser. As Stone said, [t]o be a winner, a nation under threats may have to move first
or else be destroyed. . . . [T]he concept of “aggressive war” needs to be defined with precision to
be a manageable affair under American criminal-law standards. 23
Chief Justice Harlan Fiske Stone remarked that chief U.S. prosecutor Robert Jackson was “conducting
his high-grade lynching party in Nuremberg. I don’t mind what he does to the Nazis, but I
hate to see the pretense that he is running a court and proceeding according to common law. This is
a little too sanctimonious a fraud to meet my old-fashioned ideas.” 24 He elsewhere wrote: “I wonder
how some of those who preside at the trials would justify some of the acts of their own governments
if they were placed in the status of the accused.” 25 On a third occasion Chief Justice Stone
specifically questioned “whether, under this new [Nuremberg] doctrine of international law, if we
had been defeated, the victors could plausibly assert that our supplying Britain with fifty destroyers
[in l940] was an act of aggression...” 26 As a Supreme Court Justice, Jackson himself reflected upon
the hypocrisy of the charge in light of the actions of the Soviet Union. “We say aggressive war is a
crime,” he wrote President Truman in a private letter, “and one of our allies asserts sovereignty over
the Baltic States based on no title except conquest.” 27
One of America’s most thoughtful federal judges, Judge Charles E. Wyzanski, Jr., addressed the
issue in detail. He wrote:
[T]he body of growing custom to which reference is made is custom directed at sovereign
states, not at individuals. There is no convention or treaty which places obligations explicitly
upon an individual not to aid in waging an aggressive war. Thus, from the point of view of the
individual, the charge of a “crime against peace” appears in one aspect like a retroactive law. At
the time he acted, almost all informed jurists would have told him that individuals who engaged
in aggressive war were not in the legal sense criminals.
22 DÖNITZ AT NUREMBERG: A REAPPRAISAL l96 (H.K. Thompson, Jr. & Henry Strutz eds., l976).
23 WILLIAM O. DOUGLAS, THE COURT YEARS, l939-l975: THE AUTOBIOGRAPHY OF WILLIAM O. DOUGLAS 29 (l980) (some internal quota-
tion marks omitted).
24 ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 7l6 (l956), quoting letter from Chief Justice Harlan Fiske Stone
to Sterling Carr (Dec. 4, l945).
25 Id., quoting letter from Chief Justice Harlan Fiske Stone to Charles Fairman (Mar. 23, l945). l945).
26 Id., quoting Letter from Chief Justice Harlan Fiske Stone to Luther Ely Smith (Dec. 23, 1945).
27 R. CONOT, JUSTICE AT NUREMBERG 68 (l983), quoting letter from Justice Robert Jackson to President Harry Truman (Oct. l2, l945).