Contents - Constitutional Court of Georgia

The Blank-Prose Crime of Aggression
Laws which prohibit the doing of things, and provide a punishment for their violation, should
have no double meaning. A citizen should not unnecessarily be placed where, by an honest error
in the construction of a penal statute, he may be subjected to a prosecution . . . . 99
The vagueness doctrine is thus directed at the unfairness of punishing a person who was not
provided notice as to what conduct was prohibited. To meet constitutional requirements, a law
must provide “sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practices.” 100 A statute is also vague “if it authorizes or even encourages
arbitrary and discriminatory enforcement.” 101 Thus, a vagrancy statute was held void for vagueness
“both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute,’ and because it encourages arbitrary and erratic arrests
and convictions.” 102
IV. APPLYING AND EVALUATING THE SWGCA’S DEFINITION OF AGGRESSION
There is little doubt, therefore, that modern international law, like U.S. law, prohibits vague and
retroactive crimes. How does the SWGCA’s definition of the crime of aggression fare in light of this
prohibition? One judge on the Tokyo Tribunal, Justice Henri Bernard of France, presaging justifications
similar to those advanced by contemporary supporters of a broad, modern crime of aggression,
argued that the content of international law was irrelevant: retroactivity concerns were inapposite
with respect to crimes of aggression because those crimes “are inscribed in natural law.” 103
Any further notice that might be accorded by reiteration of that inscription in statute or treaty, according
to this theory, would therefore be duplicative and unnecessary.
Neither the Nuremberg Tribunal nor the Tokyo Tribunal accepted that approach; rather, the
retroactivity problem as a legal impediment to the prosecutions was resolved by finding that the
principle of nonretroactivity was not part of international law. The Nuremberg Tribunal found that
the maxim nullum crimen sine lege “is not a limitation of sovereignty, but is in general a principle
99 United States v. Reese, 92 U.S. 2l4, 2l9 (l875). The Court continued: “Every man should be able to know with certainty when he is committing
a crime.” Id. at 220.
100 Jordan v. DeGeorge, 34l U.S. 223, 23l-32 (l95l); see also Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (l966) (“[A] law fails to meet the
requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits
or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.”).
101 Hill v. Colorado, 530 U.S. 703, 732 (2000).
102 Papachristou v. City of Jacksonville, 405 U.S. l56, l62 (l972) (quoting United States v. Harriss, 347 U.S. 6l2, 6l7 (l954)).
103 United States v. Araki (Nov. l2, l948) (Bernard, J., dissenting), in l05 THE TOKYO MAJOR WAR CRIMES TRIAL: THE JUDGMENT, SEPARATE
OPINIONS, PROCEEDINGS IN CHAMBERS, APPEALS AND REVIEW OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST l, l0
(John R. Pritchard ed., Robert M.W. Kemper Collegium & Edwin Mellen Press l998) (l948) [hereinafter IMTFE PROCEEDINGS].
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