Judgment of Nuremberg

Although the Late Chief Justice William H. Rehnquist made these remarks on the occasion of the dedication of the Robert H. Jackson Center, it raised some of the questions now being asked about the legitimacy of trying Saddam Hussein. Jackson was appointed Associate Justice of the Supreme Court in 1941. On May 2, 1945 Truman appointed Jackson as Chief Prosecutor to the Nuremberg Trials. Strange as it may seem to today's readers, some doubted that the Nazi leaders could be legally tried at all. Rehnquist said:

But despite the praise for Justice Jackson's contributions to the success of the Nuremberg Trials, there was a great deal of criticism of the trials themselves. The criticism focused on two issues. The first was whether a Justice of the Supreme Court should participate as a prosecutor in such a trial.

The second issue was whether or not this sort of trial -- not only the prosecutors, but also the judges -- coming from the victors, would be in fact if not in form a "kangaroo court." But this criticism softened as the Court amassed evidence of the evil intentions and deeds of many of the defendants, and also because three of the defendants were acquitted. Legal scholars also questioned whether the whole idea of such a trial where there was no existing body of law did not violate the principle embodied in the ex post facto prohibition in the United States Constitution. That provision requires that before criminal liability may attach to a person for a particular act, a law making the conduct criminal must have been on the books before he committed the act.

Some of Jackson's own colleagues joined in the criticism. Justice William O. Douglas (between Jackson and whom no love was lost) opined in memoirs published many years later:

[Jackson] was gone a whole year, and in his absence we sat as an eight-man Court. I thought at the time he accepted the job that it was a gross violation of separation of powers to put a Justice in charge of an executive function. I thought, and I think Stone and Black agreed, that if Bob did that, he should resign. Moreover, some of us -- particularly Stone, Black, Murphy and I -- thought that the Nuremberg Trials were unconstitutional by American standards."

Whatever the merit of these objections, the Nuremberg Trials were surely superior to the summary court martial proceedings favored by some members of the administration and the summary executions initially favored by the British.

Chief Justice Stone wrote privately in November 1945 that it would not disturb him greatly if the power of the Allied victors was "openly and frankly used to punish the German leaders for being a bad lot, but it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime."

The ex post facto objection was very much alive with respect to the charges laid against the Nazis. The Robert Jackson Center website lays out the essential arguments.

Four Supreme Court justices plus then-U.S. Sen. Robert Taft, R-Ohio, son of President and Chief Justice William Howard Taft, noted that the trials violated the ex post facto principle. He said Harlan Fiske Stone, then chief justice of the United States, called them "a high-grade lynching party." ... 

A debate underlying the ex post facto question involves what law applies: May courts in general, or war-crimes tribunals in particular, rely only on "positive law" — law that has been enacted in the particular place where the alleged acts occurred? Or may courts also rely to whatever extent on other, possibly overarching principles, such as "natural law"?

Others, such as Noam Chomsky, have argued that any Allied attempt to prosecute the Nazis was itself unjust because it was presided over by worse war criminals than Hitler. 

But getting closer to the sort of core of the Nuremberg-Tokyo tribunals, in Truman's case at the Tokyo tribunal, there was one authentic, independent Asian justice, an Indian, who was also the one person in the court who had any background in international law [Radhabinod Pal], and he dissented from the whole judgment, dissented from the whole thing. He wrote a very interesting and important dissent, seven hundred pages -- you can find it in the Harvard Law Library, that's where I found it, maybe somewhere else, and it's interesting reading. He goes through the trial record and shows, I think pretty convincingly, it was pretty farcical. He ends up by saying something like this: if there is any crime in the Pacific theater that compares with the crimes of the Nazis, for which they're being hanged at Nuremberg, it was the dropping of the two atom bombs. And he says nothing of that sort can be attributed to the present accused. Well, that's a plausible argument, I think, if you look at the background. Truman proceeded to organize a major counter-insurgency campaign in Greece which killed off about one hundred and sixty thousand people, sixty thousand refugees, another sixty thousand or so people tortured, political system dismantled, right-wing regime. American corporations came in and took it over. I think that's a crime under Nuremberg.

(Speculation alert) I wrote earlier that any trial of Saddam Hussein would automatically bring in recent history as a co-defendant. I guess that the "internationalists" feel they are the only ones with the moral authority to judge the former President of Iraq. To the question 'what law applies', their answer will be the 'international law' they have been at pains to construct. Any law but those of who at all events have disqualified themselves from the power of judgment by removing Saddam Hussein by force. Yet the "internationalists" cannot hold themselves entirely blameless. Implicit in Saddam's trial is another question: 'how did such a monster carry on for so long in the face of an international system that pretends to civilization'? And would Saddam, even now, be gassing Kurds and throwing living human beings into woodchippers if any but those whose moral qualifications are now doubted not acted against him?