Contents - Constitutional Court of Georgia

164
Michael J. Glennon
of justice.” 104 This disposition was probably a reasonable assessment of the state of international
law at the time and provided an answer that was at least temporally correct to the objections of
the sort voiced by Chief Justice Stone, Justice Douglas, and Judge Wyzanski. International law in
this respect lagged behind domestic legal systems. International human rights norms, in treaties
and customary law, had not yet emerged as significant restrictions on state actors; there did not
exist at the time of the Nuremberg trials a general and widespread practice pursuant to which
individuals had successfully asserted against states the right not to be subjected to retroactive
punishment. The juridical situation today is vastly different. As indicated above, 105 there can be no
question that the prohibition against vague and retroactive penal measures is now a cornerstone
of international law.
What the Nuremberg Tribunal meant by “a principle of justice” is not clear, but its words suggest
that the Tribunal was aware of the potential retroactivity problem, which arose at least in
part from the absence of any applicable treaty or domestic law that provided notice. 106 One must
say “at least in part” because the problem was in fact broader: defendants before both the Nuremberg
and Tokyo tribunals had a plausible claim to have been denied notice not only because
the offense of a crime against the peace did not thitherto exist, but also because no tribunal then
existed before which they might reasonably have expected to be tried for such crimes. Justice
Robert Jackson’s famous rejoinder—that the defendants had been charged with crimes that had
been recognized since the time that Cain slew Abel 107 — is thus no answer to the claim that impunity
could reasonably have been expected, whatever the merits of the charge, by virtue of the
preexisting institutional vacuum at the international level that made prosecution impossible. No
one had ever before been prosecuted for the crime of aggression. The absence of a preexisting
“crime against the peace” was one strike against Nuremberg; the absence of a preexisting tribunal
was a second. 108
In principle, these concerns about retroactivity would have no ineluctable application to the
Rome Statute insofar as the Statute might create the crime of aggression, for, if sufficiently precise,
the Statute itself would provide notice as to what conduct would henceforth be prosecutable.
The Statute does so, for example, with respect to war crimes, which are delineated in Article
8 and can be understood with reasonable reliability by persons of common intelligence. Article
104 INT’L MILITARY TRIBUNAL, supra note l2, at 2l9.
105 See supra text accompanying notes 79-93.
106 The only international agreement earlier in force that even arguably permitted prosecution for planning or waging aggressive war was
the Treaty of Versailles, which would have permitted trial of the German Kaiser “for a supreme offence against international morality and
the sanctity of treaties.” Treaty of Peace art. 227, June 28, l9l9, 225 Consol. T.S. l88. However, he took refuge in the Netherlands, whose
queen refused to extradite him. As noted earlier, see supra text accompanying note ll, the prohibition against aggressive war set out in the
Kellogg-Briand Pact applied only to states; it did not purport to criminalize individual conduct or to require that states do so. See Treaty
for Renunciation of War, supra note 9, art I. “It is hard to find a better example of . . . ‘void for vagueness’ than Article 227 of the Treaty
of Versailles.” William A. Schabas, Origins of the Criminalization of Aggression: How Crimes Against Peace Became the “Supreme International
Crime,” in THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION l7, 2l (Mauro Politi & Giuseppe Nesi eds., 2004).
107 See Atrocities and War Crimes: Report from Robert H. Jackson to the President (June l0, l945), in l2 DEP’T ST. BULL. l07l, l075 (l945).
108 For a discussion of similar difficulties arising from the possible control of the prosecutorial process by the U.N. Security Council, see
infra text accompanying notes l75-l8l.