Justice Robert Jackson’s International Law Jurisprudence

Protecting Fundamental Rights through Procedural Due Process

By Ashley C. DeGennaro 

Ashley C DeGennaro is a 2024 graduate of Albany Law School. A native of the Capital Region, Ashley grew up in Clifton Park before obtaining her Bachelor of Science in Chemistry from Haverford College.

In her time at Albany Law, Ashley served as a Subeditor and Associate Editor of the Albany Law Review and participated in the Domenick L. Gabrielli Appellate Advocacy Competition. She served as both a Sponsler Fellow Teaching Assistant for Federal Civil Procedure with Dean Connie Mayer, and a Constitutional Law Teaching Assistant for Professor Vincent Bonventre. She also served as a Judicial Intern to the U.S. District Court Judge Mae A. D’Agostino, of the Northern District of New York.

Since her admission to the bar earlier this year, Ashley has been working as an Associate Attorney at Monaco Cooper Lamme & Carr in Albany.

Justice Robert H. Jackson served as an associate justice on the United States Supreme Court from 1941 to his death in 1954. In addition to his work on the Court, Jackson is widely known for his work as Chief Prosecutor for the United States at the Nuremberg Trial, which he regarded as the most important work he had accomplished in his life.

Throughout his career, Jackson was a champion for due process, an ideal that did not waver throughout his time on the Supreme Court, nor in his time as a prosecutor at Nuremberg. During his time on the Court, Jackson was able to recognize the tensions between the government’s interest in maintaining national security and the individual’s interest in preserving personal liberties. He was a zealous advocate of fairness in the legal system and desired to limit the imposition on individual liberties, despite the presence of both national and international issues which caused concern over national security. Throughout his lifetime of service, Jackson helped sculpt the future of international law as it is known today. 

This paper discusses Justice Jackson’s jurisprudence during his time as Chief Prosecutor at the Nuremberg Trials and also as an associate justice on the Supreme Court. This paper begins by analyzing Jackson’s advocacy for fairness and due process on the international stage at Nuremberg, a historical landmark in international law. This paper then analyzes Jackson’s commitment to such ideals on the national stage during his time on the Supreme Court through cases such as Youngstown Sheet & Tube Co. v. Sawyer and Korematsu v. United States. As a whole, the paper will seek to explore the work of Justice Jackson and his commitment to ensuring due process for every individual in the court system, regardless of nationality. 

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To read the paper, open HERE.

The Defense of Following Superior Orders

A Complex Ethical Dilemma

By Patricia T. Whelan

Patricia Whelan earned her J.D. from Albany Law School in 2023 and was admitted to the New York State Bar in 2024. Before attending law school, she earned her bachelor’s degree from Penn State.  At Albany Law, Patricia was involved in various organizations including the Albany Law Review, Elder and Disability Law Pro Bono Society, and Student Bar Association.  She received the Outstanding Law School Chapter Justice Award as Chief Justice of Phi Alpha Delta Law Fraternity and previously served as the Editor-in-Chief of the Center of Judicial Process.  Patricia also enjoyed competing in Moot Court and was a finalist in the 2021 Donna Jo Morse Client Counseling Competition.  Patricia has interned for the Third Judicial District, Federal Public Defender’s Office, and served as the Law Student Liaison for the ABA Section of State & Local Government Law.

Currently, she is working as an Associate Attorney at Pierro, Connor & Strauss.

Two of Patricia’s law school seminar papers have previously been published on the Center for Judicial Process website. [One on Justice Thomas and one on the NY Court of Appeals.]

The defense of following superior orders is one of the most complex and controversial defenses in international criminal law that requires careful consideration of the moral, legal, and historical contexts.  The question of whether it is morally justifiable to follow orders, even when they conflict with one’s own sense of right and wrong, has been a topic of debate for centuries.  This ethical dilemma has been central to discussions surrounding war crimes, military obedience, and the responsibility of individuals within hierarchical organizations.  Generally, soldiers are duty-bound to obey the orders of their superior officers.  However, this becomes problematic when a soldier is ordered to perform an act which constitutes an act of war.  In such situations, the duty of military obedience conflicts with the need to maintain the supremacy of the rule of law.  

Historically, the defense of following superior orders previously allowed soldiers to escape culpability for their crimes.  However, the principles established during the Nuremberg Trials explicitly rejected the defense of following orders, stating that individuals are still responsible for their actions, even if they were acting under orders from a superior.  These Trials set an international precedent that war criminals cannot claim that they were following orders to escape responsibility.  Orders that involve war crimes, human rights violations, or actions that contravene international law are considered unlawful and must not be followed.  This moral duty is rooted in the principles of humanity and the protection of basic human rights.

This paper discusses the defense of following orders and its ban to prevent defendants from escaping liability for their actions during World War II.  Part II provides a brief explanation of the defense and examines the common justifications used to support it.  Part III explores the history of the defense and its relevance in the notorious Trials.  Part V considers the moral and ethical dilemmas surrounding the defense of following orders, and Part VI briefly concludes.

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To read the paper, open HERE.

Suffering in Silence: The Nuremberg Failure to Prosecute Sex Crimes

By Jessica Phillips

Jessica Phillips is a May 2023 magna cum laude graduate of Albany Law School. Prior to law school, Jessica graduated summa cum laude from the University at Albany with a Bachelor of Science in human development.

As a first-year student at Albany Law, Jessica served as a Research Assistant to Dean Rosemary Queenan, exploring access to Free and Appropriate Public Education for children with disabilities. In her second year, Jessica was elected to serve as the Treasurer for Albany Law School’s Family Law Society, a position she held through her third year.

In addition to her law school extracurriculars and interests, Jessica was appointed to the New York State Bar Association’s Committee on Children & the Law.

Following the bar exam, Jessica will be joining Copps DiPaola Silverman, PLLC as an associate on the matrimonial and family law litigation team.

Utilizing rape as a weapon of war is by no means a recent phenomenon. For as long as conflict has existed, so too has rape.

Sexual violence has been used consistently throughout history, originally stemming from the belief that women were property. Rape was viewed as a "legitimate spoil of war," an "inevitable consequence of war and a way to boost soldier morale," and even as a "mark of victory, proof of soldiers’ masculinity and success, and compensation for service.” If history has revealed anything, it is just how interconnected war and rape are.

However perpetual and present it has been, rape as a weapon of war has been ignored and overlooked, together with the survivors and victims of these atrocious crimes. Today, numerous international statutes explicitly prohibit rape and other forms of sexual violence during international and domestic conflicts. This was not always the case, however, and progress in this area has been painstakingly slow.

It was not until the 1990s, at the International Criminal Tribunals for the former Yugoslavia and Rwanda, that rape and other sexual crimes against women and girls were explicitly prohibited, recognized, and prosecuted by the international community. Up to this point, and during the International Military Tribunal in Nuremberg in 1945 – 1946, the victims and survivors of rape during war suffered in silence, without recognition of or justice for the vile acts they endured. 

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To read the paper, open HERE.

American Hypocrisy: International Accountability for Everyone But Us

By Connor Judd

Connor Judd is a 2022 graduate of Albany Law School. He grew up in Rochester, NY and graduated college from the University at Albany, summa cum laude, with a double major in Business and Criminal Justice.

In law school, Connor was the Managing Editor of Business & Production for the Government Law Review. In addition, he competed in multiple moot court events and interned with Hon. Denise A. Hartman, the Albany County Public Defender’s Office, and the Federal Public Defender’s Office.

Connor is currently an Assistant Public Defender for the Monroe County Public Defender’s Office. In his free time, Connor enjoys hiking, camping, and watching sports.

Connor wrote this paper for Professor Bonventre’s International Law of War and Crime seminar.

The Nuremberg Trials promised to usher in a new era of international accountability. The world vowed never again after witnessing the atrocities committed during World War II. Yet, the United States, the leading country behind the prosecution at Nuremberg, has continued to repeatedly violate the very laws and principles it sought to enforce.

This paper examines two war crimes in particular at the hands of the United States: the atomic bombings on Hiroshima and Nagasaki, and the My Lai Massacre in Vietnam. Both offer case studies on how the United States has avoided responsibility for its actions in the wake of the Nuremberg Trials.

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To read the paper, open HERE.

Lesson's from Robert H. Jackson's Legacy

Grassroots and Balanced Approaches to Justice for Guantanamo Bay, Piracy, and the Affordable Care Act
By Nicholas A. Battaglia
Nick Battaglia, a 2012 cum laude graduate of Albany Law School, and magna cum laude from Marist College, served as Executive Editor for Lead Articles on the Albany Law Review. He is the founder and managing member of NAB Legal Marketing, LLC--a law firm marketing business. He has previously published with the Albany Law Review, the Jurist, New York State Bar Association, and the Holy Cross Journal of Law and Public Policy.
Nick is currently an associate at the law firm of  Conway & Kirby in Latham, New York. He is admitted to practice in the State of New Jersey, the U.S. District Court of New Jersey, and is pending admission for practice in the State of New York.
His paper was one of the award winning finalists in the 2012 Justice Robert H. Jackson Centennial Writing Competition.

The lessons and experiences that Justice Robert H. Jackson encountered during his childhood were echoed throughout his career and permeated his legal philosophy. He had even acknowledged this in his short, one-page article written for the American Bar Association Journal in 1950, where he labeled himself a “country lawyer.”

Justice Jackson was still capable of reflecting on his humble beginnings even after defending FDR’s New Deal legislation, serving on the Supreme Court of the United States, and facing down evil as chief prosecutor at the Nuremburg Tribunal. It was this childhood that truly developed Justice Jackson’s grassroots and balanced approach to problem-solving.

This paper connects Justice Jackson’s pedagogical childhood experiences with major cases and events throughout Justice Jackson’s life which affect our society today. It details how Justice Jackson’s opinion in Barnette v. West Virginia Board of Education, where Jehovah’s Witnesses refused to salute the flag at the height of wartime patriotism, was a product of Justice Jackson’s scolding as a child after he ridiculed an entire church during mass. As a result of his majority opinion, courts today have extrapolated Barnette’s holding in cases involving schools and other allegations of First and Fourteen Amendment rights violations.

Additionally, this paper explores how Justice Jackson’s respect for due process rights, both during wartime for some of the vilest Nazi officers at the Nuremburg Tribunal and as a dissenter in the infamous Japanese internment camp case, Korematsu v. United States, was a result of habitual, childhood conversations with family members who resented war and violence.

The belief that violence was orderless and solved very little was a principle instilled in Justice Jackson. It became the impetus for his ensuring that the Nuremburg Tribunal did not become a “kangaroo court.” This precedent has a direct relation to the incidents transpiring at Guantanamo Bay today--preserving, or attempting to preserve, the attenuated due process rights of suspected terrorists. Additionally, these notions birthed the International Criminal Court and refined international law today which is tasked with combating piracy on the high seas.

Finally, this paper explains President Barack Obama’s Affordable Care Act thorough the lens of Justice Jackson’s seminal opinion in Wickard v. Filburn. The doctrine of an aggregated impact on interstate commerce, which stems from Wickard and has been applied by the Court ever since--e.g., several years ago in Gonzales v. Raich--was exhaustively discussed in the Supreme Court’s Obamacare decision.

Even though Wickard turned out not to be the key to the Affordable Care Act's survival, it still demonstrates Justice Jackson’s influence through his writing more than seventy years ago, and was at the heart of perhaps the most controversial legal dispute of this era.
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To read the paper, open HERE.

Legacy of the Nuremberg Trials

A Pithy Contemplation

By Kristen Boyert
Kristen Boyert is a third year student at Albany Law School pursuing a certificate in International Law.  This past summer, she spent five weeks interning in Abidjan, Côte d’Ivoire researching and compiling a report on human rights issues during the 2011 post- electoral crisis for ONG Transparency Justice.  She serves as a Senior Editor for both International Law Studies and the Center for Judicial Process.
This essay was prepared for Professor Bonventre’s International Law of War and Crime Seminar, Fall 2012.

We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow.  To pass these defendants a poisoned chalice is to put it to our own lips as well.

Justice Robert H. Jackson[1]

It is with the best intentions for repair and reconciliation that the Nuremberg Trials took place. The inception of the tribunal intended to repair the wounds so deeply inflicted upon a ravaged region, as well as aid in the prevention of further atrocities. However, the inherent inception of the Nuremberg Trials is based upon the victors, and as critics argue, the jurisdiction of the tribunal is dubious, among other issues.[2]

It is universally accepted—save for a misguided few—that actions taken by the Nazi government and Nazi officials alike rose above the horrors of war to an apex that “shocked the conscience of all civilized peoples . . . .”[3]  It also goes without saying that individuals should face the consequences of their actions. The tribunal “manifested the practicability of a fair trial of war crimes in an international tribunal . . . [and] [i]t established important precedents for the development of international law concerning the definition of certain crimes . . . .”[4]

Nevertheless, as George A. Finch and Quincy Wright discuss, the tribunal steps onto unsteady ground with this venture and opens itself to criticism.[5]  Both authors describe the notion that no country is without blame.[6]  Each has waged war and defended against it.[7]  Although the Nuremberg Trials stand as a glimmer of hope for good-intentions towards persecuting wrongdoers, it also leaves questions regarding jurisdiction and sentencing.[8]

Rape in War [the paper]

By Julia Steciuk
Julia Steciuk prepared this paper for the International Law of War and Crime Seminar, summer 2012, in conjunction with the associated presentation which was previously published on ILS.
As noted then, Julia Steciuk, a second year student at Albany Law School, studied English as an undergraduate at Siena College. During her first year at Albany Law, Julia became Co-Director of Albany Law’s Animal Pro Bono Project, as well as President of the school’s Animal Legal Defense Fund chapter. Julia is a Research Assistant for Professor Vincent M. Bonventre, as well as an Associate Editor for the Center for Judicial Process. She spent her summer interning with the Albany County District Attorney’s Office.

Where there is war there is rape. Throughout history, rape has been used as a tool for a variety of purposes during war. However, it was not until after World War II that rape within the context of war gained the attention of the international legal community and when developments began to be made towards improving the abilities of prosecutors to charge and try rape offenders in the context of war.

Part I of this paper discusses the prosecution of rape in war within the context of the Nuremburg and Tokyo Trials. Part II examines developments in international law towards an increased recognition for victims of rape during such national trials. Parts III and IV discuss how these improvements have been implemented during the Tribunal for the Former Yugoslavia and the Tribunal for Rwanda, while also examining drawbacks that occurred for the prosecution of rape. Part V discusses further developments and limitations in prosecution of rape in war and Part VI concludes this work.
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To read the paper, open HERE.

Rape in War [presentation]

By Julia Steciuk
Julia Steciuk, a second year student at Albany Law School, studied English as an undergraduate at Siena College. During her first year at Albany Law, Julia became Co-Director of Albany Law’s Animal Pro Bono Project, as well as President of the school’s Animal Legal Defense Fund chapter. Julia is a Research Assistant for Professor Vincent M. Bonventre, as well as an Associate Editor for the Center for Judicial Process. She spent her summer interning with the Albany County District Attorney’s Office.
She prepared this presentation for the International Law of War and Crime Seminar, summer 2012. (Her associated paper is forthcoming on ILS.)

(click to enlarge on all slides)

 

 

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For the entire presentation, open HERE.
(It is then best to download the presentation and view it from there.)