Nuremberg Law and U.S. Courts
Woodward, Beverly
The Court: You see the case, Mr. Mitchell, as far as the law is concerned, is a relatively simple case... . Defendant Mitchell: I do not agree that the issues of my defense are clearcut and...
...In the often quoted case of the Paquete Habana the Supreme Court stated: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination...
...BEVERLY WOODWARD Of course, it is possible that the United States is not involved in an aggressive war and it is possible that even if it is, that fact would not be sufficient grounds for invalidating the draft...
...But even though this question and others related to it are without doubt of the first importance, it is questionable whether the judiciary can at present come to grips with them in any kind of satisfactory way...
...10 There is only one national constitution which clearly grants superior status to international law as it affects individuals...
...Unfortunately, the Treaty of London (which, as I have stated, included the Charter of the International Military Tribunal) did not proclaim the existence of such individual rights, let alone establish a procedure whereby the individual could assert these rights and receive effective protection if they were being infringed upon...
...Rather than creating stability and providing a framework within which there would be at least some hope of harmonious living-together, these laws seem almost to guarantee chaos and destruction...
...The inability of the international community to agree on a definition of aggression is an important symptom of this situation...
...It can be seen, then, that great difficulties surround the enforcement of Nuremberg law...
...The problem concerns just what sort of "extrapolation" should be allowed...
...Although it was true that, between the wars, there had been many solemn declarations condemning the resort to war and the Kellogg-Briand Pact was supposed to have "outlawed" war, nevertheless the notion of individual accountability for launching or waging an aggressive war had certainly never before been clearly formulated...
...has gone beyond the law, the Court finds itself in an awkward position...
...Yet if we consider the fact that the nationstate remained the dominant political reality after World War II, and if we consider at the same time some of the implications of the "Nuremberg Principles," then this outcome will seem almost inevitable...
...And he declared further that] if certain acts in violations of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us...
...Unfortunately, existing political realities militate against the acceptance of common definitions just as much as they do against the application of such definitions...
...That presumption, however, is likely to be ill-founded at times...
...Justice Jackson, who was largely responsible for the wording of the Charter and the establishment of the International Military Tribunal and who later acted as Chief American Prosecutor at the trials...
...This may account in part for the factthat Captain Levy was permitted to raise the "war crimes" issue...
...COURTS effective impact on the way in which an ongoing war is conducted...
...At the same time they asserted that the orders issued to them were invalid, principally on the grounds that it is a violation of due process to compel any individual to commit an illegal act.2 Theirs were therefore cases of what I have elsewhere labeled "civil challenge...
...Both these documents manifest a crucial structural defect: these documents clearly state that individuals have duties under international law, but at the same time fail to create corresponding rights for the protection of the individual who is trying to carry out these duties...
...Justice Stewart added his dissent to that of Justice Douglas...
...2) whether the question as to the waging of an aggressive "war" is in the context of this criminal prosecution a justiciable question...
...But it seemed to me from my reading of the instructions to the judges in Nuremberg that, since obedience to a superior was not a defense if the order required the commission of crimes against humanity—although those instructions did not so provide—it would seem to me that an ordinary extrapolation of that rule would in domestic law provide a defense although I have no precedent...
...Owens [prosecutor...
...A further problem is created for the Court by the fact that its rulings, if heeded and enforced, can affect directly only the government of which it forms a part...
...As America's representative Mr...
...To be sure, the resisters themselves have been accused of speaking in selfrighteous and pious terms...
...Even if he recognizes that the law has certain necessary limitations as 11 This lack may not nullify the obligations proclaimed at Nuremberg and in the "Principles," but it does put in question their binding quality...
...Either the Court can officially shut its eyes and ignore the illegalities that are occurring, a course which may eventually undermine its authority, or it can attempt to intervene and risk provoking a severe internal crisis and perhaps a more rapid loss of its authority...
...Theologically defined notions of the good may not conform to notions of the good as defined politically...
...Although the cases of David Mitchell, Captain Levy, and the Fort Hood Three are quite familiar in some circles, it is probably true that the details of these cases are not widely known...
...Nor has this defect BEVERLY WOODWARD since been corrected...
...As for customary international law, it is not evident that it stands on any higher footing...
...It is difficult to answer such questions before the event...
...What troubles him is that the laws of the world, that is, the laws arising from the nation-state "security" system, seem, when considered in their totality, actually to work against some of man's primary political needs...
...The results are quite different, however, for the individual whose life is a life of action and who seeks to act with coherence and integrity...
...Many argued that war itself had become a crime against NUREMBERG LAW AND U.S...
...For if read carefully, these principles can only be viewed as "subversive" of the authority of the nationstate...
...BEVERLY WOODWARD render these principles effective is hardly astonishing...
...2 [of our constitution...
...88 S. Ct...
...They imposeliability upon war-making statesmen of all countries alike...
...To adhere to Nuremberg might involve disobeying constitutionally valid orders 8 Brierly in The Law of Nations quotes from the decision in the case of Over the Top (5 FederalReporter, 838): "International practice is law only in so far as we adopt it, and like all common or statute law it bends to the will of Congress...
...For example, in order to protect a David Mitchell or the Fort Hood Three or Captain Levy against the injury caused by the illegal actions of the United States government, it would be necessary for the Supreme Court to have the capacity to restrain the other branches of our government in matters that are considered vital...
...These realities have probably not been given sufficient attention by those who view Nuremberg law as valid and enforceable international law...
...These questions were: (1) whether the Treaty of London [which includes the Charter of the Nuremberg tribunal] is a treaty within the meaning of Art...
...Nor have the sub sequent legal battles, initiated by others who believe American action in Vietnam to be in violation of international law, had much greater success...
...The United States Court of Appeals for the Second Circuit, which made the final ruling in Mitchell's case, replied to this argument by stating that "whatever action the President may order, or the Congress sanction," cannot impair the constitutional power of Congress to raise and support armed forces...
...One is not inclined to let the matter rest there...
...Here the justification was formulated in terms of the necessities of the future...
...the Army's action thus resulted in their being court-martialed before their suit could be heard...
...It should be clear that as things stand, Nuremberg law must be applied through the medium of the nation-state and that this is a medium likely to prove both recalcitrant and ineffective...
...Of thethree categories of crimes enumerated in the Nuremberg Charter, this category was the mostfirmly established in international law...
...If they had won their cases, the effect would have been considerable...
...It can be granted, of course, that the law may sometimes run athwart certain versions of God's commands...
...yet it provides no internationally guaranteed rights for the protection of individuals against orders of their national government that run counter to the declared international obligations of the individual...
...Defendant Mitchell: I do not agree that the issues of my defense are clearcut and simple...
...This power is not allowed...
...Or would they concede that the "Nuremberg Principles" support the legal correctness of the position of the young man who refused to go into Hitler's army (apart from the assumed moral correctness of his position...
...Consider Principles II, III, and IV as formulated by the International Law Commission: II—The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law...
...Not that action by the Court is impossible...
...Or perhaps it is at some later point of involvement that one becomes an accomplice...
...The obstacles, both political and legal, to such a "self-judgment" of the nation seem to many insurmountable...
...This unprecedentedness of the trials was the main source of the many objections raised against them, objections to which I have alluded earlier...
...District Court, District of Connecticut, Sept...
...But it is necessary to remark that this case involved enemy saboteurs, not citizens of our own country...
...His critics, on the other hand, argue that no ordinary soldier was tried at Nuremberg...
...In the Shimoda case, initiated by the victims of the atomic attacks on Hiroshima and Nagasaki, the District Court of Tokyo stated in its decision: "It is still proper to understand that individuals are not the subject of rights in international law, unless it is concretely recognized by treaties...
...If that is not possible, and they strongly suspect that it is not, then they insist that it is their right to try to create new institutions and new standards of legitimacy...
...And in Reid v. Covert the Supreme Court declared: "This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty . . . [since to do otherwise] would permit amendment of that document in a manner not sanctioned by Article V." (In a moment I shall point out the difficulty that is hereby created in the case of the Treaty of London...
...In their eyes the trials were an effort to establish firmly certain principles of international law which had been proclaimed or implied in declarations and treaties made between the two world wars, but which until that time had not been enforced...
...Mitchell, as far as the law is concerned, is a relatively simple case...
...Nuremberg law, therefore, may by its very terms claim to supersede our Constitution and all national constitutions...
...Some of the principal difficulties involved are discussed below...
...5 If American actions in Vietnam are aggressive and illegal, then there must be some orders which are invalid (either because they result from or support unconstitutional action or because they create complicity...
...T T HE CENTRAL CONTENTION of the defendants in the cases I am discussing was that they would be guilty of complicity in crime if they obeyed the particular order that had been issued to each of them...
...NUREMBERG LAW AND U.S...
...not surprisingly that is the constitution of West Germany...
...There exists no International Criminal Court, and each of the powers which sat in judgment at the International Military Tribunal has since been involved in actions which might be considered aggressive—the Soviet Union in Eastern Europe, France in 6 At the time of the signing of the agreement to try the European war criminals, Justice Jacksonstated: "The definitions under which we will try the Germans are general definitions...
...Was not Mitchell correct when he said, "'Providing for the common defense' is not a license for crime...
...Indochina, Britain at the Suez Canal, the United States in Vietnam...
...COURTS unless a constitutional amendment made it clear that Nuremberg Law was to take precedence in cases of conflict and that only Nuremberg Law would be valid in such cases...
...Even those who think that the Nuremberg judgments were unconstitutional by our guarantee relating to ex post facto laws would have to take a different view of the Treaty of London that purports to lay down a standard of future conduct for all the signatories...
...6 But the hopes of Justice Jackson and other supporters of Nuremberg have yet to be fulfilled...
...Perhaps "legality's desperate attempt to keep abreast of morality" cannot possibly succeed under contemporary conditions...
...Some are akin to those referred to by Mr...
...To some extent this had been recognized even before World War II and the advent of nuclear weapons...
...H H JUSTIFIED the Nuremberg trials may have been, they undoubtedly constituted an unprecedented step in modern legal history...
...Efforts to provide authoritative definitions of the crimes enumerated in the Nuremberg Charter have fared no better than efforts to define complicity in those crimes...
...What Mitchell contended was that the draft might also be unconstitutional when used to help fight a war of aggression...
...At the end of World War II the United States and its allies (calling themselves the United Nations) made an agreement to try the "major war criminals of the European Axis countries...
...Whenever one of these powers' so-called vital interests has been involved, considerations of international law have not restrained it...
...The Court has recently suffered a barrage of abuse for actions and judgments that were considerably less adventurous...
...The Constitution states, as Mitchell stressed, that treaties are part of the law of the land (Article VI), but it is now an accepted judicial doctrine that Congress may annul a treaty by later legislation, even without action by other parties to the treaty...
...But we have yet to see anything like a "full-scale" Nuremberg defense presented to and weighed by either a civilian or a military court...
...Those who are politically active prefer to use them—and abuse them—for polemical purposes...
...implying that a power which is used in that way must perhaps be revoked...
...III—The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law...
...Indeed, this discussion of the obstacles has hardly been exhaustive...
...Moreover, there exists in national military law the necessary"machinery" for prosecuting individual militarymen who are believed to have committed a war crime...
...is a crime under international law," and they include in their definition of a crime against peace the "waging of a war of aggression...
...This supremacy certainly cannot be said to be established in the United States...
...But no such amendment has been passed.9 T T HE SHAKY STATUS of international law in our domestic legal system is not the only source of the difficulties involved in making Nuremberg law effective...
...If the law cannot help him to be good, at least it should not compel him to do evil—and penalize him when he resists...
...But others argued that when men commit deeds which are without precedent yet at the same time horrendous and clearly criminal in nature, then special procedures are required if justice is to be done...
...I think they involve many things—Nuremberg trials, international law, conventions on war crimes and torture and genocide, et cetera...
...Justice Douglas in Mitchell v. United States...
...And there must be some who are accomplices...
...4 A draft resister might also argue, and Mitchell did, that he should not be compelled to contribute to an illegal enterprise whether or not he might be held guilty of complicity for doing so...
...But that contention had an obverse side...
...Professor Roger Fisher of the Harvard LawSchool has suggested to me that it is plausible to argue that a command or law is invalid if it places the individual in the position of committing an illegal act, whether he obeys the law or com mand or whether he disobeys it...
...In addition Justice Douglas stated] There is a considerable body of opinion that our actions in Vietnam constitute the waging of an aggressive "war...
...Instead, they challenge the government to allow that debate to take place in a meaningful way within our existing legal and political institutions...
...I think we could get far afield if we are allowed to introduce various philosophies, etc...
...For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations...
...He goes on to remark that "there is, however, a presumption that neither Parliament nor Congress will intend to violate international law...
...True, in the cases of Captain Howard Levy and of the Fort Hood Three, American courts did take some steps toward confronting the extremely important questions first raised by Mitchell...
...From Transcript of Proceedings, U.S...
...First, the political problems: Can the judiciary which has neither the power of "the sword or the purse" effectively bring a war to an end...
...That is, they all had violated some command on the grounds that the command was without validity and they had done so with the hope of being vindicated in the courts and thereby influencing public policy...
...Justice Jackson said at the time: Repeatedly, nations have united in abstract declarations that the launching of an aggressive war is illegal...
...What would be the actual result of a ruling by the Supreme Court favorable to the defendant in a case such as one of these...
...It was, as Conrad Lynn declared in a brief written for Mitchell, "an important moment in legality's desperate attempt to keep abreast of moraltty...
...They have condemned it by treaty...
...And while it is all very well to state that individuals have responsibilities under international law, that cannot be considered enough as long as the supremacy of international law over national law in cases of conflict is not explicitly established...
...10 Even if our courts were clearly required to give international law precedence, there would still remain the problem of insuring the enforcement of judicial decrees based on international law...
...As Wolfgang Friedmann has stated: "An international law of the individual must surely comprise both rights and duties...
...But now we have the concrete application of these abstractions...
...In any cage, the resisters do not wish to abdicate the moral-political debate...
...It is less well known, yet equally true, that the terms "war crimes" and "crimes against humanity" also have been given widely varying interpretations...
...How do I know what they will do at the next one...
...Those who have followed the proceedings of the United Nations are well aware that there is no agreement concerning the meaning of the term "aggression...
...However, his accusation was not that certain individuals were guilty of committing war crimes, but that the government wassupporting the commission of war crimes as a ,natter of policy...
...Do the judges really mean whatever action the President may order...
...National courts are likely to view this fact as adding to the risks of judicial intervention...
...Instead, he was told that such evidence was "immaterial and irrelevant" as a defense to the charge brought against him...
...Only too often one nation's aggression turns out to be another nation's "legitimate self-defense" or "legitimate support of self-defense...
...In any case the courts have failed so far to provide any kind of satisfactory criteria, and so have the jurists who formulated the "Nuremberg Principles...
...Justice Douglas dissented, and when the suit instituted by the Fort Hood Three reached the Supreme Court Mr...
...No one was more insistent that the Nuremberg trials should have this general significance and should mark the beginning of a fundamentally different international order than Mr...
...Naturally, the individuals who have tried to make a legal case against the war in Vietnam do not want to accept such judgments as correct...
...In the Mitchell case Mr...
...The three men were ordered to board the plane shortly after having brought a suit against the Army to prevent it from shipping them to Vietnam...
...Mitchell, for example, argued that since the armed forces are engaged in at least one illegal enterprise (whatever their other activities may be) , he would be guilty of complicity were he even to submit to induction...
...political...
...but their language is perhaps a natural and inevitable reflection of the kind of language they have heard for so long...
...Justice Stewart dissented from the refusal to hear the case of the Fort Hood Three, he said: "There exist in this case questions of great magnitude...
...That individuals have duties under international law has also been affirmed by the Supreme Court, notably in Ex parte Quinn, which was cited in the Nuremberg judgment...
...The last case is complicated because it involves both a suit and a court-martial...
...It is apparent that only a few scholars wish to define these terms as precisely as possible...
...But I do wish to indicate that no matter how compelling a case might be made that the United States is involved in an aggressive and illegal war, the Court might hesitate a long moment before making such a ruling...
...It is a government which is wont to speak in moral terms and to justify its actions in moral terms...
...Nevertheless, Mitchell and the Fort Hood Three (Dennis Mora, David Samas, and James Johnson) were given some support when their cases reached the Supreme Court...
...Many writers stressed, though, that Nuremberg could only be justified by the future...
...For the Nuremberg Charter appears to supersede all national constitutions insofar as it rules out the defenses of "act of state" and of "superior orders...
...It is all very well for theorists and philosophers to show, even to "prove," that morality, legality, and politics have little in common with one another—for the intellect generally finds pleasure in making distinctions...
...In each case the contention was proffered as a defense against a charge of having refused to obey some order: Mitchell had refused to report for induction, Captain Levy had refused to train medics in the United States Special Forces, and the three Army privates known as the Fort Hood Three had refused to board a plane bound for Vietnam...
...an enforcer and creator of morality, he will resist the notion that the law must necessarily be an enforcer and creator of gross immorality...
...Mitchell was also not allowed to present evidence supporting his contentions as to the nature of the war...
...Nor had certain of the crimes listed in the Charter of the tribunal been recognized or clearly defined before that time...
...COURTS ternational law, and that these were crimes for which individuals could be held accountable...
...Section 511 of the current Army Field Manual (No...
...Although the Court refused to review these cases, the decisions were not unanimous...
...A final problem concerns the wording of the Charter and the "Principles" themselves...
...3 The "Nuremberg Principles" were formulated by the International Law Commission at the request of the United Nations General Assembly...
...Only if the victors and enforcers of justice at Nuremberg showed themselves ready to submit to the same principles which they had proclaimed, only if an international criminal jurisdiction were created would Nuremberg show itself to have been a worthwhile precedent...
...Justice Douglas presented a list of five questions which he contended the Court was called upon to answer in spite of their "extremely sensitive and delicate" nature...
...Mitchell, for example, sought nothing less than to bring the war in Vietnam to an end by having the draft declared invalid when used as an instrument in the prosecution of that war Already the problems begin to manifest themselves...
...The Court's ruling, though, seems altog^ ther too sweeping...
...For these reasons the defendants and many others declared that those tried were the victims of ex post facto legislation...
...T HAS BEEN over three years since the young draft resister, David Henry Mitch ell, III, launched his effort to persuade our courts to enforce the principles of international law proclaimed at Nuremberg...
...Would the Executive acquiesce to a ruling which crippled its powers to wage a particular war or would we have chaos and a breakdown of civil order...
...This is particularly true when the delict involved is as large-scale an affair as a war...
...3) whether the Vietnam episode is a "war" in the sense of the Treaty...
...Then he went on to mention certain other questions in the case, questions relating to the constitutionality of an undeclared war...
...In fact, if we think about it for a moment it becomes evident that the difficulties I have been calling technical are in reality largely 5 In a recent dissent—written for the case of O'Brien v. U.S...
...NUREMBERG LAW AND U.S...
...As might be imagined, such contentions did not receive a friendly hearing in our courts...
...Before reaching conclusions, let me state the problem...
...In sum, both justices agreed that the question of the war's status under international law, and particularly with reference to the principles enunciated and enforced at Nuremberg, was a question of the first importance for the judiciary...
...It was invalid, he argued in part, because the draft is at present an essential instrument in the prosecution of an illegal war...
...Can it even exert an 2 In addition, some defendants, such as Mitchell, have argued that even though a given commanddoes not create complicity in crime, it may still be invalid if it results from or supports actionwhich is in violation of the Constitution and/or of international law...
...They all were attempts to show that the United States' actions in Vietnam render it guilty of one or more of the three categories of crimes enumerated by the Charter of the Nuremberg tribunal: crimes against peace, war crimes, and crimes against humanity...
...In this case that means having criteria for determining the existence of the three kinds of crime enumerated in the Nuremberg Charter and having criteria for identifying complicity in such crimes...
...But that does not eliminate the theoretical problems that Mitchell has raised...
...A war may involve breaches of international law by both sides, yet a national court has a rather limited capacity to affect the total context in which the illegalities perpetrated by its own side are occurring...
...Definitions of political crimes have to be politically acceptable definitions...
...Does it really matter that Nuremberg has thus far proven to be an ineffective precedent...
...Unfortunately, that effort has not been a particularly successful one...
...It provides that "general rules of international law shall form part of federal law" and that such rules "shall take precedence over the laws and create rights and duties directly for the inhabitants of the federal territory...
...Nor is this surprising...
...8 (Emphasis supplied...
...The technical problems have to do with definitions...
...As Hamilton stated in The Federalist, the judiciary "must ultimately depend upon the aid of the executive arm . . . for the efficacy of its judgments...
...4 Mitchell's assertion that he might be guilty of complicity if he accepted induction into the Army was complemented by his assertion that the order to report for induction was invalid...
...4) whether petitioner has standing to raise the question...
...Clearly the political obstacles to holding that such a charge is correct are much greater than in the case involving the individualmilitary man...
...The major principle to be established was that the initiation and the waging of an aggressive war constituted crimes under in NUREMBERG LAW AND U.S...
...I don't see them saying anywhere that only those in the highest positions are capable of "waging a war of aggression...
...They are both of a technical and a political nature...
...This may truly be said to be a Scylla-and-Charybdis situation for the Court and yet one that is seemingly unavoidable...
...There remains, however, the question of the significance of this conclusion...
...In fact, it was only Captain Levy who was allowed to present evidence to support his position (and that evidence was later held to be insufficient to prove his claims).' In the case of the court-martial of the Fort Hood Three the Army law officer ruled out of order the argument that the war in Vietnam is illegal with the statement: "I rule that it is a matter of law, that the war in Vietnam is legal, and I forbid you to argue that it isn't...
...Though numerous observers considered the Nuremberg trials nothing better than examples of the vengeance that the victor will wreak upon the vanquished, supporters of the trials held quite different views...
...These principles in effect assert the supremacy of international law over national law...
...Therefore, individual responsibility for the initiation and conduct of aggressive war must be firmly declared and established...
...When Mr...
...Individual responsibility was meant to apply only to the leaders, not to run-of-the-mill draftees (let alone to draftees who didn't even fight in the war) . Yet Mitchell could reply: That's what they did at that trial...
...IV—The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him...
...Perhaps the whole enterprise was unrealistic in the first place...
...27-10) states that "the fact that domestic law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law...
...We now know that not every judge in the land (when faced with a case of noncooperation with the military) will brush aside a defense based on the Nuremberg Charter and judgment with the label of "irrelevant...
...He specifically questioned the constitutionality of the draft in the absence of a declaration of war by Congress...
...If we can cultivate in the world the idea that aggressive war-making is the way tothe prisoner's dock rather than the way to honors, we will have accomplished somethingtoward making the peace more •secure...
...In a self-justifying statement issued after Mitchell's first trial, the judge expressed himself on this matter rather strongly...
...Nevertheless, in the United States there has been some governmental recognition of these principles, probably mainly as a result of the key role played by this country in bringing about the Nuremberg trials...
...In view of the seemingly subservient status of customary international law and of treaties, it seems possible that the United States was not really "free" to enter into Nuremberg, in spite of Justice Jackson's no doubt sincere declaration that this country would feel itself bound by the same laws it was applying to the Germans...
...And what links these three cases together...
...Perhaps the Fort Hood Three were right in drawing the line at the point when they were ordered to go to Vietnam...
...American resisters, therefore, believe that it is necessary to challenge our government...
...But now it was clearly essential that the renunciation of aggression become a serious thing...
...Let's look at the statement of the "Nuremberg Principles,"3 as formulated by the International Law Commission of the United Nations...
...But such criteria are lacking...
...This statement hardly seems to confer any more authority on custom or usage than that granted by Chief Justice Marshall in 1814 when he asserted in Brown v. United States: This argument [that it might require an act of the legislature to justify the condemnation of property which according to modern international usage ought not to be confiscated] must assume for its basis the position that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power...
...The second question can be answered with one word: Nuremberg...
...They do, however, make understandable the efforts of our courts, and particularly the Supreme Court, to avoid making the experiment...
...1673)—Mr...
...for it indicates that our constitutional system is, for the time being at least, incapable of coming to grips with the central problems of our time...
...that are not pertinent to the case...
...But to make that clear requires that we consider the situation in which the Nuremberg trials came to be and the presuppositions of those who most strongly supported the trials...
...What, then, did these men contend and how did our courts respond to their contentions...
...8, 13-15, 1965...
...He said: Leaving aside the sickening spectacle of a 22-year-old citizen of the United States seizing the sanctuary of a nation dedicated to freedom of speech to assert such tommyrot and leaving aside the transparency of his motives for doing so, the decisive point is that such political or philosophical views, even if sincerely entertained, are utterly irrelevant as a defense to the charge of willful refusal to report for induction in the armed forces of the United States...
...Such a conclusion is admittedly not very satisfying...
...That provided a justifi cation for the punishment of those involved in the crime of genocide, but not for the punishment of those responsible for initiating a war of aggression, since wars of aggression had often occurred in the past...
...They do not advocate the divorce of morality and politics or of morality and legality...
...The cases of David Mitchell, Captain Levy, and the Fort Hood Three, then, involved three attempts to test the force of Justice Jackson's declaration...
...It is, in a word, a self-righteous government...
...In fact, one can conclude without contradiction that the issues raised by Mitchell were altogether "relevant" to his defense and yet not justiciable in our courts or for that matter in any existing court...
...To ascertain the existence of complicity in a crime, one must be able to define the crime and to define what constitutes complicity in it...
...7 Consequently, the failure of national authorities to take the steps necessary to 7 This point was made explicit in the judgment of the International Military Tribunal when it dedared that "the very essence of the Charter isthat individuals have international duties which transcend the national obligations of obedienceimposed by the individual state...
...They are considered by many commentators to be highly authoritative guides with regard to the international legal obligations of the individual...
...As can easily be seen, this is an almost exact repetition of Principle II as framed by the International Law Commission...
...This, in effect, was the position taken by the defendants in thecases being discussed...
...On this basis, then, the Nuremberg trials took place...
...Justice Douglas questioned whether the constitutionality of conscription is in all cases beyond question...
...but it need not be in order to make my point...
...5) whether, if he has, it may be tendered as a defense in this criminal case or in amelioration of punishment...
...VI, cl...
...If so, then is it correct to say that the President may order the armed forces to commit any action whatsoever without impairing Congress's constitutional power to draft an army...
...When it is the executive arm itself which 9 A remark by the law officer in the trial of Captain Levy indicated his uncertainty as to what exactly the relation is between Nuremberg law and American domestic law: "Well, as you must realize, this question is pretty much wide open...
...Emphasisadded...
...U.S...
...They state that "complicity in a crime against peace...
...David Henry Mitchell, III...
...COURTS mankind...
...In 1 Captain Levy (unlike the defendants in theother cases mentioned here) charged the government not with crimes against peace or crimesagainst humanity, but with war crimes...
...BEVERLY WOODWARD Mitchell's case Mr...
...This can be a hazardous undertaking for the Court...
...This usage is a guide which the sovereign follows or abandons at his will...
...But it is not this conflict which is crucial at present to the conscientious individual...
Vol. 16 • March 1969 • No. 2
