Chapter LXVII: Section 60: , Penal Code. Costs: Section 465, Code of Criminal Procedure (13)

Article II of C. C. Law 10 defines acts, each of which “is recognized as a crime,” namely, (_a_) crimes against peace, (_b_) war crimes, (_c_) crimes against humanity, (_d_) membership in criminal organizations. We are concerned here with categories (_b_), (_c_), and (_d_) only, each of which will receive later consideration.

_The Procedural Ordinance_

C. C. Law 10 provides that--

“1. Each occupying authority, within its zone of occupation,

“(_a_) shall have the right to cause persons within such
Zone suspected of having committed a crime, including those
charged with crime by one of the United Nations, to be arrested
* * *.

* * * * *

“(_d_) shall have the right to cause all persons so
arrested and charged, * * * to be brought to trial before an
appropriate tribunal. * * *

“2. The tribunal by which persons charged with offenses
hereunder shall be tried and the rules and procedure thereof
shall be determined or designated by each Zone Commander for his
respective Zone. * * * ”

Pursuant to the foregoing authority, Ordinance No. 7 was enacted by the Military Governor of the American Zone. It provides:

“Article I

“The purpose of this Ordinance is to provide for the
establishment of military tribunals which shall have power to
try and punish persons charged with offenses recognized as
crimes in article II of Control Council Law No. 10, including
conspiracies to commit any such crimes. * * *

“Article II

“(_a_) Pursuant to the powers of the Military Governor for
the United States Zone of Occupation within Germany and further
pursuant to the powers conferred upon the Zone Commander by
Control Council Law No. 10 and articles 10 and 11 of the Charter
of the International Military Tribunal annexed to the London
Agreement of 8 August 1945 certain tribunals to be known as
‘Military Tribunals’ shall be established hereunder.”

The tribunals authorized by Ordinance No. 7 are dependent upon the substantive jurisdictional provisions of C. C. Law 10 and are thus based upon international authority and retain international characteristics. It is provided that the United States Military Governor may agree with other zone commanders for a joint trial. (Ordinance 7, art. II, par. (_c_).) The Chief of Counsel for War Crimes, United States, may invite others of the United Nations to participate in the prosecution. (Ordinance 7, art. III, par. (_b_).)

The Ordinance provides:

“Article X

“The determinations of the International Military Tribunal
in the judgments in Case No. 1 that invasions, aggressive
acts, aggressive wars, crimes, atrocities or inhumane acts
were planned or occurred, shall be binding on the tribunals
established hereunder and shall not be questioned except
insofar as the participation therein or knowledge thereof
by any particular person may be concerned. Statements of the
International Military Tribunal in the judgment in Case No.
1 constitute proof of the facts stated, in the absence of
substantial new evidence to the contrary.”

The sentences authorized by Ordinance No. 7 are made definite only by reference to those provided for by C. C. Law 10. (Ordinance No. 7, Art. XVI).

As thus established the Tribunal is authorized and empowered to try and punish the major war criminals of the European Axis and “those German officers and men and members of the Nazi Party who have been responsible for, or have taken a consenting part in,” or have aided, abetted, ordered, or have been connected with plans or enterprises involving the commission of the offenses defined in C. C. Law 10.

SOURCE OF AUTHORITY OF C. C. LAW 10

Having identified the instruments which purport to establish the jurisdiction of this Tribunal, we next consider the legal basis of those instruments. The unconditional surrender of Germany took place on 8 May 1945.[556] The surrender was preceded by the complete disintegration of the central government and was followed by the complete occupation of all of Germany. There were no opposing German forces in the field; the officials who during the war had exercised the powers of the Reich Government were either dead, in prison, or in hiding. On 5 June 1945 the Allied Powers announced that they “hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command, and any state, municipal or local government or authority,” and declared that “there is no central government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country, and compliance with the requirements of the victorious powers.” The Four Powers further declared that they “will hereafter determine the boundaries of Germany or any part thereof and the status of Germany or of any area at present being a part of German territory.”[557]

On 2 August 1945 at Berlin, President Truman, Generalissimo Stalin, and Prime Minister Attlee, as heads of the Allied Powers, entered into a written agreement setting forth the principles which were to govern Germany during the initial control period. Reference to that document will disclose the wide scope of authority and control which was assumed and exercised by the Allied Powers. They assumed “supreme authority” and declared that it was their purpose to accomplish complete demilitarization of Germany; to destroy the National Socialist Party, to prevent Nazi propaganda; to abolish all Nazi laws which “established discrimination on grounds of race, creed, or political opinion * * * whether legal, administrative, or otherwise”; to control education; to reorganize the judicial system in accordance with the principles of democracy and of equal rights; to accomplish the decentralization of the political structure. The agreement provided that “for the time being no central German government shall be established”. In the economic field they assumed control of “German industry and all economic and financial international transactions”.[558] Finally, the Allies reaffirmed their intention to bring the Nazi war criminals to swift and sure justice.

It is this fact of the complete disintegration of the government in Germany, followed by unconditional surrender and by occupation of the territory, which explains and justifies the assumption and exercise of supreme governmental power by the Allies. The same fact distinguishes the present occupation of Germany from the type of occupation which occurs when, in the course of actual warfare, an invading army enters and occupies the territory of another state, whose government is still in existence and is in receipt of international recognition, and whose armies, with those of its allies, are still in the field. In the latter case the occupying power is subject to the limitations imposed upon it by the Hague Convention and by the laws and customs of war. In the former case (the occupation of Germany) the Allied Powers were not subject to those limitations. By reason of the complete breakdown of government, industry, agriculture, and supply, they were under an imperative humanitarian duty of far wider scope to reorganize government and industry and to foster local democratic governmental agencies throughout the territory.

In support of the distinction made, we quote from two recent and scholarly articles in “The American Journal of International Law.”

“On the other hand, a distinction is clearly warranted between
measures taken by the Allies prior to destruction of the German
Government and those taken thereafter. Only the former need
be tested by the Hague Regulations, which are inapplicable to
the situation now prevailing in Germany. Disappearance of the
German State as a belligerent entity, necessarily implied in the
Declaration of Berlin of 5 June 1945, signifies that a true
state of war--and hence _belligerent_ occupation--no longer
exists within the meaning of international law.”[559]

* * * * *

“Through the subjugation of Germany the outcome of the war has been decided in the most definite manner possible. One of the prerogatives of the Allies resulting from the subjugation is the right to occupy German territory at their discretion. This occupation is, both legally and factually, fundamentally different from the belligerent occupation contemplated in the Hague Regulations, as can be seen from the following observations.

“The provisions of the Hague Regulations restricting the rights of an occupant refer to a belligerent who, favored by the changing fortunes of war, actually exercises military authority over enemy territory and thereby prevents the legitimate sovereign--who remains the legitimate sovereign--from exercising his full authority. The Regulations draw important legal conclusions from the fact that the legitimate sovereign may at any moment himself be favored by the changing fortunes of war, reconquer the territory, and put an end to the occupation. ‘The occupation applies only to territory where such authority (i.e., the military authority of the hostile state) is established and can be exercised’ (_Art. 42, 2_). In other words, the Hague Regulations think of an occupation which is a phase of an as yet undecided war. Until 7 May 1945, the Allies were belligerent occupants in the then occupied parts of Germany, and their rights and duties were circumscribed by the respective provisions of the Hague Regulations. As a result of the subjugation of Germany, the legal character of the occupation of German territory was drastically changed.”[560]

The view expressed by the two authorities cited appears to have the support of the International Military Tribunal judgment in the case against Goering, et al. In that case the defendants contended that Germany was not bound by the rules of land warfare in occupied territory because Germany had completely subjugated those countries and incorporated them into the German Reich. The Tribunal refers to the “doctrine of subjugation, dependent as it is upon military conquest,” and holds that it is unnecessary to decide whether the doctrine has any application where the subjugation is the result of the crime of aggressive war. The reason given is significant. The Tribunal said:

“The doctrine was never considered to be applicable so long
as there was an army in the field attempting to restore the
occupied countries to their true owners, and in this case,
therefore, the doctrine could not apply to any territories
occupied after 1 September 1939.”[561]

The clear implication from the foregoing is that the Rules of Land Warfare apply to the conduct of a belligerent in occupied territory so long as there is an army in the field attempting to restore the country to its true owner, but that those rules do not apply when belligerency is ended, there is no longer an army in the field, and, as in the case of Germany, subjugation has occurred by virtue of military conquest.

The views which we have expressed are supported by modern scholars of high standing in the field of international law. While they differ somewhat in theory as to the present legal status of Germany and concerning the situs of residual sovereignty, they appear to be in accord in recognizing that the powers and rights of the Allied Governments under existing conditions in Germany are not limited by the provisions of the Hague Regulations concerning land warfare. For reference see--

“The Legal Status of Germany According to the Declaration
of Berlin,” by Hans Kelsen, Professor of International Law,
University of California, American Journal of International Law,
1945.

“Germany’s Present Status,” by F. A. Mann, Doctor of Law
(Berlin) (London), paper read on 5 March 1947 before the Grotius
Society in London, published in Sueddeutsche Juristen-Zeitung
(Lawyers’ Journal of Southern Germany), volume 2, No. 9,
September 1947.

“The Influence of the Legal Position of Germany upon the War
Crimes Trial,” Dr. Hermann Mosler, Assistant Professor of the
University of Bonn, published in Sueddeutsche Juristen-Zeitung,
volume 2, No. 7, July 1947.

Article published in Neue Justiz (New Justice), by Dr. Alfons
Steininger, Berlin, volume I, No. 7, July 1947, pages 146–150.

In an article by George A. Zinn, Minister of Justice of Hessen, entitled “Germany as the Problem of the Law of States,” the author points out that if it be assumed that the present occupation of Germany constitutes “belligerent occupation” in the traditional sense, then all legal and constitutional changes brought about since 7 May 1945 would cease to be valid once the Allied troops were withdrawn and all Nazi laws would again and automatically become the law of Germany, a consummation devoutly to be avoided.

Both of the authorities first cited directly assert that the situation at the time of the unconditional surrender resulted in the transfer of sovereignty to the Allies. In this they are supported by the weighty opinion of Lord Wright, eminent jurist of the British House of Lords and head of the United Nations War Crimes Commission. For our purposes, however, it is unnecessary to determine the present situs of “residual sovereignty.” It is sufficient to hold that, by virtue of the situation at the time of unconditional surrender, the Allied Powers were provisionally in the exercise of supreme authority, valid and effective until such time as, by treaty or otherwise, Germany shall be permitted to exercise the full powers of sovereignty. We hold that the legal right of the four Powers to enact C. C. Law 10 is established and that the jurisdiction of this Tribunal to try persons charged as major war criminals of the European Axis must be conceded.

We have considered it proper to set forth our views concerning the nature and source of the authority of C. C. Law 10 in its aspect as substantive legislation. It would have been possible to treat that law as a binding rule regardless of the righteousness of its provisions, but its justification must ultimately depend upon accepted principles of justice and morality, and we are not content to treat the statute as a mere rule of thumb to be blindly applied. We shall shortly demonstrate that the IMT Charter and C. C. Law 10 provide for the punishment of crimes against humanity. As set forth in the indictment, the acts charged as crimes against humanity were committed before the occupation of Germany. They were described as racial persecutions by Nazi officials perpetrated upon German nationals. The crime of genocide is an illustration. We think that a tribunal charged with the duty of enforcing these rules will do well to consider, in determining the degree of punishment to be imposed, the moral principles which underlie the exercise of power. For that reason we have contrasted the situation when Germany was in belligerent occupation of portions of Poland, with the situation existing under the Four-Power occupation of Germany since the surrender. The occupation of Poland by Germany was in every sense belligerent occupation, precarious in character, while opposing armies were still in the field. The German occupation of Poland was subject to the limitations imposed by the Hague Convention and the laws and customs of land warfare. In view of these limitations we doubt if any person would contend that Germany, during that belligerent occupation, could lawfully have provided tribunals for the punishment of Polish officials who, before the occupation by Germany, had persecuted their own people, to wit: Polish nationals. Now the Four Powers are providing by C. C. Law 10 for the punishment of German officials who, before the occupation of Germany, passed and enforced laws for the persecution of German nationals upon racial grounds. It appears that it would be equally difficult to justify such action of the Four Powers if the situation here were the same as the situation which existed in Poland under German occupation and if consequently the limitations of the Hague Convention were applicable. For this reason it seems appropriate to point out the distinction between the two situations. As we have attempted to show, the moral and legal justification under principles of international law which authorizes the broader scope of authority under C. C. Law 10 is based on the fact that the Four Powers are not now in belligerent occupation or subject to the limitations set forth in the rules of land warfare. Rather, they have justly and legally assumed the broader task in Germany which they have solemnly defined and declared, to wit: the task of reorganizing the German Government and economy and of punishing persons who, prior to the occupation, were guilty of crimes against humanity committed against their own nationals. We have pointed out that this difference in the nature of the occupation is due to the unconditional surrender of Germany and the ensuing chaos which required the Four Powers to assume provisional supreme authority throughout the German Reich. We are not attempting to pass judicially upon a question which is solely within the jurisdiction of the political departments of the Four Powers. The fixing of the date of the formal end of the war and similar matters will, of course, be dependent upon the action of the political departments. We do not usurp their function. We merely inquire, in the course of litigation when the lives of men are dependent upon decisions which must be both legal and just, whether the great objectives announced by the Four Powers are themselves in harmony with the principles of international law and morality.

In declaring that the expressed determination of the victors to punish German officials who slaughtered their own nationals is in harmony with international principles of justice, we usurp no power; we only take judicial notice of the declarations already made by the chief executives of the United States and her former Allies. The fact that C. C. Law 10 on its face is limited to the punishment of German criminals does not transform this Tribunal into a German court. The fact that the four powers are exercising supreme legislative authority in governing Germany and for the punishment of German criminals does not mean that the jurisdiction of this Tribunal rests in the slightest degree upon any German law, prerogative, or sovereignty. We sit as a Tribunal drawing its sole power and jurisdiction from the will and command of the Four occupying Powers.

Examination will disclose that C. C. Law 10 possesses a dual aspect. In its first aspect and on its face it purports to be a statute defining crimes and providing for the punishment of persons who violate its provisions. It is the legislative product of the only body in existence having and exercising general lawmaking power throughout the Reich. The first International Military Tribunal in the case against Goering, et al., recognized similar provisions of the IMT Charter as binding legislative enactments. We quote:

“The making of the Charter was the exercise of the sovereign
legislative power by the countries to which the German Reich
unconditionally surrendered; and the undoubted right of these
countries to legislate for the occupied territories has been
recognized by the civilized world.”[562]

“These provisions are binding upon the Tribunal _as the law to
be applied to the case_.”[563] [Emphasis added.]

Since the IMT Charter and C. C. Law 10 are the products of legislative action by an international authority, it follows of necessity that there is no national constitution of any one state which could be invoked to invalidate the substantive provisions of such international legislation. It can scarcely be argued that a court which owes its existence and jurisdiction solely to the provisions of a given statute could assume to exercise that jurisdiction and then, in the exercise thereof, declare invalid the act to which it owes its existence. Except as an aid to construction, we cannot and need not go behind the statute. This was discussed authoritatively by the first International Military Tribunal in connection with the contention of defendants that the IMT Charter was invalid because it partook of the nature of _ex post facto_ legislation. That Tribunal said: “The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and _it is, therefore, not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement_.”[564] [Emphasis added.]

As recently said by an American authority--

“The Charter was, of course, binding upon the Tribunal in the
same way that a constitutional statute would bind a domestic
court.”[565]

In its aspect as a statute defining crime and providing punishment the limited purpose of C. C. Law 10 is clearly set forth. It is an exercise of supreme legislative power in and for Germany. It does not purport to establish by legislative act any new crimes of international applicability. The London Agreement refers to the trial of “those German officers and men and members of the Nazi Party who have been responsible for * * * atrocities.” C. C. Law 10 recites that it was enacted to establish a “uniform legal basis _in Germany_” for the prosecution of war criminals. [Emphasis added.]

Military Government Ordinance No. 7 was enacted pursuant to the powers of the Military Government for the United States Zone of Occupation “_within Germany_.” [Emphasis added.]

We concur in the view expressed by the first International Military Tribunal as quoted above, but we observe that the decision was supported on two grounds. The Tribunal in that case did not stop with the declaration that it was bound by the IMT Charter as an exercise of sovereign legislative power. The opinion went on to show that the IMT Charter was also “the expression of international law existing at the time of its creation.” All of the war crimes and many, if not all, of the crimes against humanity as charged in the indictment in the case at bar were, as we shall show, violative of preexisting principles of international law. To the extent to which this is true, C. C. Law 10 may be deemed to be a codification rather than original substantive legislation. Insofar as C. C. Law 10 may be thought to go beyond established principles of international law, its authority, of course, rests upon the exercise of the “sovereign legislative power” of the countries to which the German Reich unconditionally surrendered.

We have discussed C. C. Law 10 in its first aspect as substantive legislation. We now consider its other aspect. Entirely aside from its character as substantive legislation, C. C. Law 10, together with Ordinance No. 7, provides procedural means previously lacking for the enforcement within Germany of certain rules of international law which exist throughout the civilized world independently of any new substantive legislation. (_Ex parte Quirin_, 317 U.S. 1; 87 L. ed. 3; 63 S. Ct. 2.) International law is not the product of statute. Its content is not static. The absence from the world of any governmental body authorized to enact substantive rules of international law has not prevented the progressive development of that law. After the manner of the English common law it has grown to meet the exigencies of changing conditions.

It must be conceded that the circumstance which gives to principles of international conduct the dignity and authority of law is their general acceptance as such by civilized nations, which acceptance is manifested by international treaties, conventions, authoritative textbooks, practice, and judicial decisions.[566]

It does not, however, follow from the foregoing statements that general acceptance of a rule of international conduct must be manifested by express adoption thereof by all civilized states.

“The basis of the law, that is to say, what has given to some
principles of general applicability the quality or character of
law has been the acquiescence of the several independent states
which were to be governed thereby.”[567]

[Page 5]

“The requisite acquiescence on the part of individual states
has not been reflected in formal or specific approval of every
restriction which the acknowledged requirements of international
justice have appeared, under the circumstances of the particular
case, to dictate or imply. It has been rather a yielding to
principle, and by implication, to logical applications thereof
which have begotten deep-rooted and approved practices.”

[Page 9]

“It should be observed, however, that acquiescence in a proposal
may be inferred from the failure of interested states to make
appropriate objection to practical applications of it. Thus
it is that changes in the law may be wrought gradually and
imperceptibly, like those which by process of accretion alter
the course of a river and change an old boundary. Without
conventional arrangement, and by practices manifesting a common
and sharp deviation from rules once accepted as the law, the
community of states may in fact modify that which governs its
members.”

[Page 11]

“States may through the medium of an international organization
such as the League of Nations, itself the product of agreement,
find it expedient to create and accept fresh restraints that
ultimately win widest approval and acceptance as a part of
the law of nations. The acts of the organization may thus in
fact become sources of international law, at least in case the
members thereof have by their general agreement clothed it with
power to create and put into force fresh rules of restraint.”

* * * * *

“But international law is progressive. The period of growth
generally coincides with the period of world upheavals. The
pressure of necessity stimulates the impact of natural law and
of moral ideas and converts them into rules of law deliberately
and overtly recognized by the consensus of civilized mankind.
The experience of two great world wars within a quarter of
a century cannot fail to have deep repercussions on the
senses of the peoples and their demand for an international
law which reflects international justice. I am convinced that
international law has progressed, as it is bound to progress
if it is to be a living and operative force in these days of
widening sense of humanity.”[568]

For the reasons stated by Lord Wright, this growth by accretion has been greatly accelerated since the First World War.[569] The IMT Charter, the IMT judgment, and C. C. Law 10 are merely “great new cases in the book of international law.” They constitute authoritative recognition of principles of individual penal responsibility in international affairs which, as we shall show, had been developing for many years. Surely C. C. Law 10, which was enacted by the authorized representatives of the four greatest Powers on earth, is entitled to judicial respect when it states, “Each of the following acts is _recognized_ as a crime.” [Emphasis added.] Surely the requisite international approval and acquiescence is established when 23 states, including all of the great powers, have approved the London Agreement and the IMT Charter without dissent from any state. Surely the IMT Charter must be deemed declaratory of the principles of international law in view of its recognition as such by the General Assembly of the United Nations. We quote:

“The General Assembly recognizes the obligation laid upon it
by article 13, paragraph 1 (a) of the Charter, to initiate
studies and make recommendations for the purpose of encouraging
the progressive development of international law and its
codification;

“Takes note of the agreement for the establishment of an
International Military Tribunal for the prosecution and
punishment of the major war criminals of the European Axis,
signed in London on 8 August 1945, and of the Charter annexed
thereto and of the fact that similar principles have been
adopted in the Charter of the International Military Tribunal
for the trial of the major war criminals in the Far East,
proclaimed at Tokyo on 19 January 1946;

“Therefore--

“Affirms the principles of international law recognized by
the Charter of the Nuernberg Tribunal and the judgment of the
Tribunal;

“Directs the Committee on Codification of International Law
established by the resolution of the General Assembly of

* * December 1946, to treat as a matter of primary importance
plans for the formulation, in the text of a general codification
of offenses against the peace and security of mankind, or of an
International Criminal Code, of the principles recognized in the
Charter of the Nuernberg Tribunal and in the judgment of the
Tribunal.”[570]

Before the International Military Tribunal had convened for the trial of Goering, et al., the opinion had been expressed that through the process of accretion the provisions of the IMT Charter and consequently of C. C. Law 10 had already, in large measure, become incorporated into the body of international law. We quote:

“I understand the Agreement to import that the three classes
of persons which it specifies are war criminals, that the acts
mentioned in classes (_a_), (_b_), and (_c_) are
crimes for which there is properly individual responsibility;
that they are not crimes because of the Agreement of the four
Governments, but that the Governments have scheduled them as
coming under the jurisdiction of the Tribunal because they are
already crimes by existing law. On any other assumption the
Court would not be a court of law but a manifestation of power.
The principles which are declared in the Agreement are not laid
down as an arbitrary direction to the Court but are intended
to define and do, in my opinion, accurately define what is the
existing international law on these matters.”[571]

A similar view was expressed in the judgment of the International Military Tribunal. We quote:

“The Charter is not an arbitrary exercise of power on the part
of the victorious nations, but in the view of the Tribunal,
as will be shown, it is the expression of international law
existing at the time of its creation; and to that extent is
itself a contribution to international law.”[572]

We are empowered to determine the guilt or innocence of persons accused of acts described as “war crimes” and “crimes against humanity” under rules of international law. At this point, in connection with cherished doctrines of national sovereignty, it is important to distinguish between the rules of common international law which are of universal and superior authority on the one hand, and the provisions for enforcement of those rules which are by no means universal on the other. As to the superior authority of international law, we quote:

“If there exists a body of international law, which states,
from a sense of legal obligation do in fact observe in
their relations with each other, and which they are unable
individually to alter or destroy, that law must necessarily be
regarded as the law of each political entity deemed to be a
state, and as prevailing throughout places under its control.
This is true although there be no local affirmative action
indicating the adoption by the individual state of international
law.

“International law, as the local law of each state, is
necessarily superior to any administrative regulation or statute
or public act at variance with it. There can be no conflict on
an equal plane.”[573]

This universality and superiority of international law does not necessarily imply universality of its enforcement. As to the punishment of persons guilty of violating the laws and customs of war (war crimes in the narrow sense), it has always been recognized that tribunals may be established and punishment imposed by the state into whose hands the perpetrators fall. These rules of international law were recognized as paramount, and jurisdiction to enforce them by the injured belligerent government, whether within the territorial boundaries of the state or in occupied territory, has been unquestioned. (_Ex parte Quirin, supra_; In re: Yamashita, 327 U.S. 1, 90 L. ed.) However, enforcement of international law has been traditionally subject to practical limitations. Within the territorial boundaries of a state having a recognized, functioning government presently in the exercise of sovereign power throughout its territory, a violator of the rules of international law could be punished only by the authority of the officials of that state. The law is universal, but such a state reserves unto itself the exclusive power within its boundaries to apply or withhold sanctions. Thus, notwithstanding the paramount authority of the substantive rules of common international law, the doctrines of national sovereignty have been preserved through the control of enforcement machinery. It must be admitted that Germans were not the only ones who were guilty of committing war crimes; other violators of international law could, no doubt, be tried and punished by the state of which they were nationals, by the offended state if it can secure jurisdiction of the person, or by an international tribunal if of competent authorized jurisdiction.

Applying these principles, it appears that the power to punish violators of international law in Germany is not solely dependent on the enactment of rules of substantive penal law applicable only in Germany. Nor is the apparent immunity from prosecution of criminals in other states based on the absence there of the rules of international law which we enforce here. Only by giving consideration to the extraordinary and temporary situation in Germany can the procedure here be harmonized with established principles of national sovereignty. In Germany an international body (the Control Council) has assumed and exercised the power to establish judicial machinery for the punishment of those who have violated the rules of the common international law, a power which no international authority without consent could assume or exercise within a state having a national government presently in the exercise of its sovereign powers.

_Construction of C. C. Law 10 War Crimes and Crimes
Against Humanity_

We next approach the problem of the construction of C. C. Law 10, for whatever the scope of international common law may be, the power to enforce it in this case is defined and limited by the terms of the jurisdictional act.

The first penal provision of C. C. Law No. 10, with which we are concerned is as follows:

“Article II

“1.--Each of the following acts is recognized as a crime:

* * * * * * *

(_b_) _War Crimes._ Atrocities or offences against
persons or property constituting violations of the laws or
customs of war, including but not limited to, murder, ill
treatment or deportation to slave labour or for any other
purpose, of civilian population from occupied territory, murder
or ill treatment of prisoners of war or persons on the seas,
killing of hostages, plunder of public or private property,
wanton destruction of cities, towns or villages, or devastation
not justified by military necessity.”

Here we observe the controlling effect of common international law as such, for the statutes by which we are governed have adopted and incorporated the rules of international law as the rules by which war crimes are to be identified. This legislative practice by which the laws or customs of war are incorporated by reference into a statute is not unknown in the United States. (See cases cited in _Ex parte Quirin, supra_.)

The scope of inquiry as to war crimes is, of course, limited by the provisions, properly construed, of the IMT Charter and C. C. Law 10. In this particular, the two enactments are in substantial harmony. Both indicate by inclusion and exclusion the intent that the term “war crimes” shall be employed to cover acts in violation of the laws and customs of war directed against non-Germans, and shall not include atrocities committed by Germans against their own nationals. It will be observed that article 6 of the IMT Charter enumerates as war crimes acts against prisoners of war, persons on the seas, hostages, wanton destruction of cities and the like, devastation not justified by military necessity, plunder of public or private property (obviously not property of Germany or Germans), and “ill-treatment or deportation to slave labor or for any other purpose of civilian population _of or in_ occupied territory.” [Emphasis added.] C. C. Law 10, _supra_, employs similar language. It reads--

“ * * * ill treatment or deportation to slave labour or for
any other purpose, _of civilian population from occupied
territory_.” [Emphasis added.]

This legislative intent becomes more manifest when we consider the provisions of the IMT Charter and of C. C. Law 10 which deal with crimes against humanity. Article 6 of the IMT Charter defines crimes against humanity, as follows:

“ * * * murder, extermination, enslavement, deportation, and
other inhumane acts committed against any civilian population,
before or during the war; or persecutions on political, racial
or religious grounds in execution of or in connection with any
crime within the jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country where perpetrated.”

C. C. Law 10 defines as criminal:

“ * * * Atrocities and offences, including but not limited to
murder, extermination, enslavement, deportation, imprisonment,
torture, rape, or other inhumane acts committed against any
civilian population, or persecutions on political, racial or
religious grounds whether or not in violation of the domestic
laws of the country where perpetrated.”

Obviously, these sections are not surplusage. They supplement the preceding sections on war crimes and include within their prohibition not only war crimes, but also acts not included within the preceding definitions of war crimes. In place of atrocities committed against civilians of or in or from occupied territory, these sections prohibit atrocities “against any civilian population.” Again, persecutions on racial, religious, or political grounds are within our jurisdiction “whether or not in violation of the domestic laws of the country where perpetrated.” We have already demonstrated that C. C. Law 10 is specifically directed to the punishment of German criminals. It is therefore clear that the intent of the statute on crimes against humanity is to punish for persecutions and the like, whether in accord with or in violation of the domestic laws of the country where perpetrated, to wit: Germany. The intent was to provide that compliance with German law should be no defense. Article III of C. C. Law 10 clearly demonstrates that acts by Germans against German nationals may constitute crimes against humanity within the jurisdiction of this Tribunal to punish. That article provides that each occupying authority within its zone of occupation shall have the right to cause persons suspected of having committed a crime to be arrested and “(_d_) shall have the right to cause all persons so arrested * * * to be brought to trial * * *. Such Tribunal may, in the case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German court, if authorized by the occupying authorities.”

As recently asserted by General Telford Taylor before Tribunal IV, in the case of the United States _vs._ Flick, et al.:[574]

“This constitutes an explicit recognition that acts committed
by Germans against other Germans are punishable as crimes under
Law No. 10, according to the definitions contained therein,
since only such crimes may be tried by German courts, in the
discretion of the occupying power. If the occupying power fails
to authorize German courts to try crimes committed by Germans
against other Germans (and in the American Zone of Occupation
no such authorization has been given), then these cases are
tried only before non-German tribunals, such as these military
tribunals.”

Our jurisdiction to try persons charged with crimes against humanity is limited in scope, both by definition and illustration, as appears from C. C. Law 10. It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual.” The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.

The opinion of the first International Military Tribunal in the case against Goering, et al., lends support to our conclusion. That opinion recognized the distinction between war crimes and crimes against humanity, and said:

“* * * insofar as the inhumane acts charged in the indictment,
and committed after the beginning of the war, did not constitute
war crimes, they were all committed in execution of, or in
connection with, the aggressive war, and therefore constituted
crimes against humanity.”[575]

The evidence to be later reviewed establishes that certain inhumane acts charged in count three of the indictment were committed in execution of, and in connection with, aggressive war and were therefore crimes against humanity even under the provisions of the IMT Charter, but it must be noted that C. C. Law 10 differs materially from the Charter. The latter defines crimes against humanity as inhumane acts, etc., committed “in execution of, or in connection with, any crime within the jurisdiction of the tribunal”, whereas in C. C. Law 10 the words last quoted are deliberately omitted from the definition.

_THE EX POST FACTO PRINCIPLE_

The defendants claim protection under the principle _nullum crimen sine lege_, though they withheld from others the benefit of that rule during the Hitler regime. Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed. By way of illustration, we observe that C. C. Law 10, article II, paragraph 1(_b_), “_War Crimes_,” has by reference incorporated the rules by which war crimes are to be identified. In all such cases it remains only for the Tribunal, after the manner of the common law, to determine the content of those rules under the impact of changing conditions.

Whatever view may be held as to the nature and source of our authority under C. C. Law 10 and under common international law, the _ex post facto_ rule, properly understood, constitutes no legal nor moral barrier to prosecution in this case.

Under written constitutions the _ex post facto_ rule condemns statutes which define as criminal, acts committed before the law was passed, but the _ex post facto_ rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the _ex post facto_ rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the event. To have attempted to apply the _ex post facto_ principle to judicial decisions of common international law would have been to strangle that law at birth. As applied in the field of international law, the principle _nullum crimen sine lege_ received its true interpretation in the opinion of the IMT in the case versus Goering, et al. The question arose with reference to crimes against the peace, but the opinion expressed is equally applicable to war crimes and crimes against humanity. The Tribunal said:

“In the first place, it is to be observed that the maxim
_nullum crimen sine lege_ is not a limitation of
sovereignty, but is in general a principle of justice. To assert
that it is unjust to punish those who in defiance of treaties
and assurances have attacked neighboring states without warning
is obviously untrue, for in such circumstances the attacker must
know that he is doing wrong, and so far from it being unjust to
punish him, it would be unjust if his wrong were allowed to go
unpunished.”[576]

To the same effect we quote the distinguished statesman and international authority, Henry L. Stimson--

“A mistaken appeal to this principle has been the cause of much
confusion about the Nuremberg trial. It is argued that parts
of the Tribunal’s Charter, written in 1945, make crimes out
of what before were activities beyond the scope of national
and international law. Were this an exact statement of the
situation we might well be concerned, but it is not. It rests
on a misconception of the whole nature of the law of nations.
International law is not a body of authoritative codes or
statutes; it is the gradual expression, case by case, of the
moral judgments of the civilized world. As such, it corresponds
precisely to the common law of Anglo-American tradition. We can
understand the law of Nuremberg only if we see it for what it
is--a great new case in the book of international law, and not a
formal enforcement of codified statutes. A look at the charges
will show what I mean.

* * * * *

“It was the Nazi confidence that we would never chase and catch
them, and not a misunderstanding of our opinion of them, that
led them to commit their crimes. Our offense was thus that of
the man who passed by on the other side. That we have finally
recognized our negligence and named the criminals for what they
are is a piece of righteousness too long delayed by fear.”[577]

That the conception of retrospective legislation which prevails under constitutional provisions in the United States does not receive complete recognition in other enlightened legal systems is illustrated by the decision in Phillips _vs._ Eyre, L.R. 6 Q.B. 1 [27 (1870–71)] described by Lord Wright as “a case of great authority.” We quote:

“In fine, allowing the general inexpediency of retrospective
legislation, it cannot be pronounced naturally or necessarily
unjust. There may be occasions and circumstances involving the
safety of the state, or even the conduct of individual subjects,
the justice of which, prospective laws made for ordinary
occasions and the usual exigencies of society for want of
prevision fail to meet, and in which * * * the inconvenience and
wrong, _summum jus summa injuria_.”

We quote with approval the words of Sir David Maxwell-Fyfe:

“With regard to ‘crimes against humanity’, this at any rate is
clear. The Nazis, when they persecuted and murdered countless
Jews and political opponents in Germany, knew that what they
were doing was wrong and that their actions were crimes which
had been condemned by the criminal law of every civilized state.
When these crimes were mixed with the preparation for aggressive
war and later with the commission of war crimes in occupied
territories, it cannot be a matter of complaint that a procedure
is established for their punishment.”[578]

Concerning the mooted _ex post facto_ issue, Professor Wechsler of Columbia University writes:

“These are, indeed, the issues that are currently mooted. But
there are elements in the debate that should lead us to be
suspicious of the issues as they are drawn in these terms. For,
most of those who mount the attack on one or another of these
contentions hasten to assure us that their plea is not one of
immunity for the defendants; they argue only that they should
have been disposed of politically, that is, dispatched out of
hand. This is a curious position indeed. A punitive enterprise
launched on the basis of general rules, administered in an
adversary proceeding under a separation of prosecutive and
adjudicative powers is, in the name of law and justice, asserted
to be less desirable than an _ex parte_ execution list or a
drumhead court martial constituted in the immediate aftermath of
the war. I state my view reservedly when I say that history will
accept no conception of law, politics or justice that supports a
submission in these terms.”

Again, he says:

“There is, indeed, too large a disposition among the defenders
of Nuremberg to look for stray tags of international
pronouncements and reason therefrom that the law of Nuremberg
was previously fully laid down. If the Kellogg-Briand Pact or
a general conception of international obligation sufficed to
authorize England, and would have authorized us, to declare war
on Germany in defense of Poland--and in this enterprise to kill
countless thousands of German soldiers and civilians--can it be
possible that it failed to authorize punitive action against
individual Germans judicially determined to be responsible
for the Polish attack? To be sure, we would demand a more
explicit authorization for punishment in domestic law, for we
have adopted for the protection of individuals a prophylactic
principle absolutely forbidding retroactivity that we can afford
to carry to that extreme. International society, being less
stable, can afford less luxury. We admit that in other respects.
Why should we deny it here?”[579]

Many of the laws of the Weimar era which were enacted for the protection of human rights have never been repealed. Many acts constituting war crimes or crimes against humanity as defined in C. C. Law 10 were committed or permitted in direct violation also of the provisions of the German criminal law. It is true that this Tribunal can try no defendant merely because of a violation of the German penal code, but it is equally true that the rule against retrospective legislation, as a rule of justice and fair play, should be no defense if the act which he committed in violation of C. C. Law 10 was also known to him to be a punishable crime under his own domestic law.

As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C. C. Law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the states at war with Germany. Not only were the defendants warned of swift retribution by the express declaration of the Allies at Moscow of 30 October 1943. Long prior to the Second World War the principle of personal responsibility had been recognized.

“The Council of the Conference of Paris of 1919 undertook, with
the aid of the Commission on the Responsibility of the Authors
of the War and on Enforcement of Penalties, to incorporate
in the treaty of peace arrangements for the punishment
of individuals charged with responsibility for certain
offenses.”[580]

That Commission on Responsibility of Authors of the War found that--

“The war was carried on by the central empires, together with
their allies, Turkey and Bulgaria, by barbarous or illegitimate
methods in violation of the established laws and customs of war
and the elementary laws of humanity.”[581]

As its conclusion, the Commission solemnly declared:

“All persons belonging to enemy countries, however high their
position may have been, without distinction of rank, including
Chiefs of States, who have been guilty of offences against the
laws and customs of war or the laws of humanity, are liable to
criminal prosecution.”[582]

The American members of that Commission, though in substantial accord with the finding, nevertheless expressed a reservation as to “the laws of humanity.” The express wording of the London Charter and of C. C. Law 10 constitutes clear evidence of the fact that the position of the American Government is now in harmony with the Declaration of the Paris Commission concerning the “laws of humanity.” We quote further from the report of the Paris Commission:

“Every belligerent has, according to international law, the
power and authority to try the individuals alleged to be guilty
of the crimes of which an enumeration has been given in chapter
II on Violations of the Laws and Customs of War, if such persons
have been taken prisoners or have otherwise fallen into its
power. Each belligerent has, or has power to set up, pursuant to
its own legislation, an appropriate tribunal, military or civil,
for the trial of cases.”[583]

According to the Treaty of Versailles, article 228, the German Government itself “recognized the right to the Allied and associated powers to bring before military tribunals persons accused of offenses against the laws and customs of war. Such persons who might be found guilty were to be sentenced to punishments ‘laid down by law’.”[584] Some Germans were, in fact, tried for the commission of such crimes.

The foregoing considerations demonstrate that the principle _nullum crimen sine lege_, when properly understood and applied, constitutes no legal or moral barrier to prosecution in the case at bar.

CRIMES AGAINST HUMANITY AS VIOLATIVE
OF INTERNATIONAL LAW

C. C. Law 10 is not limited to the punishment of persons guilty of violating the laws and customs of war in the narrow sense; furthermore, it can no longer be said that violations of the laws and customs of war are the only offenses recognized by common international law. The force of circumstance, the grim fact of world-wide interdependence, and the moral pressure of public opinion have resulted in international recognition that certain crimes against humanity committed by Nazi authority against German nationals constituted violations not alone of statute but also of common international law. We quote: