VII. OPINION AND JUDGMENT

Military Tribunal III was established on 14 February 1947 under General Order No. 11, issued by command of the United States Military Governor for Germany. The indictment was filed with the Secretary General of Military Tribunals on 4 January 1947, and the case was assigned to Tribunal III for trial. A copy of the indictment in the German language was served upon each defendant at least 30 days before the commencement of the trial. The defendants were arraigned on 17 February 1947, each defendant entering a plea of “not guilty” to all charges preferred against him. German counsel selected by the defendants were approved by the Tribunal and have represented the respective defendants throughout the trial.

The presentation of evidence in support of the charges was commenced on 6 March 1947 and was followed by evidence for the defendants. The taking of evidence was concluded on 13 October 1947. Copies of the exhibits tendered by the prosecution were furnished in the German language to the defendants prior to the time of the reception of the exhibits in evidence. The Tribunal has heard the oral testimony of 138 witnesses. In addition it has received 641 documentary exhibits for the prosecution and 1,452 for defendants, many of them of considerable length. Some affidavits have been presented by the prosecution, but they are few in comparison with the hundreds offered by the defense.

Whenever possible, and in substantially all cases, applications of defense counsel for the production in open court of persons who had made affidavits in support of the prosecution have been granted and the affiants have appeared for cross-examination. Affiants for the defense were cross-examined orally by the prosecution in comparatively few cases.

The defendant Carl Westphal died before the commencement of the trial. On 22 August 1947, the Tribunal entered an order declaring a mistrial as to the defendant, Karl Engert, who has been able to attend court for only 2 days since 5 March 1947. The action was rendered necessary under the provisions of article IV (d) of Military Government Ordinance No. 7, and by reason of the serious and continuing illness of said defendant.

The trial was conducted in two languages with simultaneous translations of German into English and English into German throughout the proceedings.

Under Military Government Order of 14 February 1947, the following were designated as members of Military Tribunal III: Carrington T. Marshall, presiding judge; James T. Brand, judge; Mallory B. Blair, judge; Justin Woodward Harding, alternate judge. As thus constituted, the Tribunal entered upon trial of the case. On 21 June 1947, General Order No. 52 was issued by the Office of Military Government for Germany as follows:

“Pursuant to Military Government Ordinance No. 7

“1. Effective as of 19 June 1947, pursuant to Military Government Ordinance No. 7, 24 October 1946, entitled ‘Organization and Powers of Certain Military Tribunals’, James T. Brand is appointed Presiding Judge of Military Tribunal III, vice Carrington T. Marshall, relieved because of illness.

“2. Justin Woodward Harding, Alternate Judge, is appointed Judge for Military Tribunal III.

“By command of GENERAL CLAY:

C. K. GAILEY

Brigadier General, GSC

Chief of Staff”

The trial has been continued before the Tribunal as thus reconstituted. The evidence has been submitted, final arguments of counsel have been concluded, and the Tribunal has heard a personal statement from each defendant who desired to address it.

In rendering this judgment it should be said that the case against the defendants is chiefly based upon captured German documents, the authenticity of which is unchallenged.

The indictment contains four counts, as follows:

(1) Conspiracy to commit war crimes and crimes against humanity. The charge embraces the period between January 1933 and April 1945.

(2) War crimes, to wit: violations of the laws and customs of war, alleged to have been committed between September 1939 and April 1945.

(3) Crimes against humanity as defined by Control Council Law No. 10, alleged to have been committed between September 1939 and April 1945.

(4) Membership of certain defendants in organizations which have been declared to be criminal by the judgment of the International Military Tribunal in the case against Goering, et al.

The sufficiency of count one of the indictment was challenged by the defendants upon jurisdictional grounds, and on 11 July 1947, the Tribunal made and entered the following order:

“Count one of the indictment in this case charges that the defendants, acting pursuant to a common design, unlawfully, willfully and knowingly did conspire and agree together to commit war crimes and crimes against humanity as defined in Control Council Law No. 10, article II. It is charged that the alleged crime was committed between January 1933 and April 1945.

“It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.

“Count one of the indictment, in addition to the separate charge of conspiracy, also alleged unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We, therefore, cannot properly strike the whole of count one from the indictment, but, in so far as count one charges the commission of the alleged crime of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge.

“This ruling must not be construed as limiting the force or effect of article II, paragraph 2, of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances occurring either before or after September 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10.”

THE JURISDICTIONAL ENACTMENTS

For convenient reference we have attached to this opinion copies of the London Agreement of 8 August 1945, with the Charter of the International Military Tribunal annexed thereto, Control Council Law No. 10, Military Government Ordinance No. 7, and the indictment, which are marked respectively Exhibits A, B, C, and D.[555]

The indictment alleges that the defendants committed crimes “as defined in Control Council Law No. 10, duly enacted by the Allied Control Council.” We therefore turn to that law.

The Allied Control Council is composed of the authorized representatives of the four Powers: the United States, Great Britain, France, and the Soviet Union.

The preamble to Control Council Law No. 10 is in part as follows:

“In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, * * * the Control Council enacts as follows:”

Article I reads in part as follows:

“The Moscow Declaration of 30 October 1943 ‘Concerning Responsibility of Hitlerites for Committed Atrocities’ and the London Agreement of 8 August 1945 ‘Concerning Prosecution and Punishment of Major War Criminals of the European Axis’ are made integral parts of this Law. * * *”

The London Agreement, supra, provides that the Charter of the International Military Tribunal (hereinafter called the IMT Charter), “shall form an integral part of this agreement.” (London Agreement, art. II). Thus, it appears that the indictment is drawn under and pursuant to the provisions of Control Council Law No. 10 (hereinafter called C. C. Law 10), that C. C. Law 10 expressly incorporates the London Agreement as a part thereof, and that the IMT Charter is a part of the London Agreement.

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:

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(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:

“If a state is unhampered in its activities that affect the interests of any other, it is due to the circumstance that the practice of nations has not established that the welfare of the international society is adversely affected thereby. Hence that society has not been incited or aroused to endeavor to impose restraints; and by its law none are imposed. The Covenant of the League of Nations takes exact cognizance of the situation in its reference to disputes ‘which arise out of a matter which by international law is solely within the domestic jurisdiction’ of a party thereto. It is that law which as a product of the acquiescence of states permits the particular activity of the individual state to be deemed a domestic one.

“In as much as changing estimates are to be anticipated, and as the evolution of thought in this regard appears to be constant and is perhaps now more obvious than at any time since the United States came into being, the circumstance that at any given period the solution of a particular question is by international law deemed to be solely within the control or jurisdiction of one state, gives frail assurance that it will always be so regarded.“[585]

“The family of nations is not unconcerned with the life and experience of the private individual in his relationships with the state of which he is a national. Evidence of concern has become increasingly abundant since World War I, and is reflected in treaties through which that conflict was brought to a close, particularly in provisions designed to safeguard the racial, linguistic and religious minorities inhabiting the territories of certain states, and in the terms of part XIII of the Treaty of Versailles, of June 28, 1919, in respect to labour, as well as in article XXIII of that treaty embraced in the Covenant of the League of Nations.”[586]

“The nature and extent of the latitude accorded a state in the treatment of its own nationals has been observed elsewhere. It has been seen that certain forms or degrees of harsh treatment of such individuals may be deemed to attain an international significance because of their direct and adverse effect upon the rights and interests of the outside world. For that reason it would be unscientific to declare at this day that tyrannical conduct, or massacres, or religious persecutions are wholly unrelated to the foreign relations of the territorial sovereign which is guilty of them. If it can be shown that such acts are immediately and necessarily injurious to the nationals of a particular foreign state, grounds for interference by it may be acknowledged. Again, the society of nations, acting collectively, may not unreasonably maintain that a state yielding to such excesses renders itself unfit to perform its international obligations, especially in so far as they pertain to the protection of foreign life and property within its domain.[587] The property of interference obviously demands in every case a convincing showing that there is in fact a causal connection between the harsh treatment complained of, and the outside state that essays to thwart it.

The international concern over the commission of crimes against humanity has been greatly intensified in recent years. The fact of such concern is not a recent phenomenon, however. England, France, and Russia intervened to end the atrocities in the Greco-Turkish warfare in 1827.[588]

President Van Buren, through his Secretary of State, intervened with the Sultan of Turkey in 1840 in behalf of the persecuted Jews of Damascus and Rhodes.[589]

The French intervened and by force undertook to check religious atrocities in Lebanon, in 1861.[590]

Various nations directed protests to the governments of Russia and Rumania with respect to pogroms and atrocities against Jews. Similar protests were made to the government of Turkey on behalf of the persecuted Christian minorities. In 1872 the United States, Germany, and five other powers protested to Rumania; and in 1915, the German Government joined in a remonstrance to Turkey on account of similar persecutions.[591]

In 1902 the American Secretary of State, John Hay, addressed to Rumania a remonstrance “in the name of humanity” against Jewish persecutions, saying, “This government cannot be a tacit party to such international wrongs.”

Again, in connection with the Kishenef [Kishinev] and other massacres in Russia in 1903, President Theodore Roosevelt stated:

“* * * Nevertheless there are occasional crimes committed on so vast a scale and of such peculiar horror as to make us doubt whether it is not our manifest duty to endeavor at least to show our disapproval of the deed and our sympathy with those who have suffered by it. The cases must be extreme in which such a course is justifiable. * * * The cases in which we could interfere by force of arms as we interfered to put a stop to intolerable conditions in Cuba are necessarily very few. * * *”[592]

Concerning the American intervention in Cuba in 1898, President McKinley stated:

“First. In the cause of humanity and to put an end to the barbarities, bloodshed, starvation, and horrible miseries now existing there, and which the parties to the conflict are either unable or unwilling to stop or mitigate. It is no answer to say this is all in another country, belonging to another nation, and therefore none of our business. It is specially our duty, for it is right at our door.”[593]

The same principle was recognized as early as 1878 by a learned German professor of law, who wrote:

“States are allowed to interfere in the name of international law if ‘humanity rights’ are violated to the detriment of any single race.”[594]

Finally, we quote the words of Sir Hartley Shawcross, the British Chief Prosecutor at the trial of Goering, et al.:

“The rights of humanitarian intervention on behalf of the rights of man trampled upon by a state in a manner shocking the sense of mankind has long been considered to form part of the [recognized] law of nations. Here, too, the Charter merely develops a preexisting principle.”[595]

We hold that crimes against humanity as defined in C. C. Law 10 must be strictly construed to exclude isolated cases of atrocity or persecution whether committed by private individuals or by governmental authority. As we construe it, that section provides for punishment of crimes committed against German nationals only where there is proof of conscious participation in systematic government organized or approved procedures amounting to atrocities and offenses of the kind specified in the act and committed against populations or amounting to persecutions on political, racial, or religious grounds.

Thus, the statute is limited by construction to the type of criminal activity which prior to 1939 was and still is a matter of international concern. Whether or not such atrocities constitute technical violations of laws and customs of war, they were acts of such scope and malevolence, and they so clearly imperiled the peace of the world that they must be deemed to have become violations of international law. This principle was recognized although it was misapplied by the Third Reich. Hitler expressly justified his early acts of aggression against Czechoslovakia on the ground that the alleged persecution of racial Germans by the government of that country was a matter of international concern warranting intervention by Germany. Organized Czechoslovakian persecution of racial Germans in Sudetenland was a fiction supported by “framed” incidents, but the principle invoked by Hitler was the one which we have recognized, namely, that government organized racial persecutions are violations of international law.

As the prime illustration of a crime against humanity under C. C. Law 10, which by reason of its magnitude and its international repercussions has been recognized as a violation of common international law, we cite “genocide” which will shortly receive our full consideration. A resolution recently adopted by the General Assembly of the United Nations is in part as follows:

“Genocide is a denial of the right of existence of entire human groups, as homicide is a denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.

“Many instances of such crimes of genocide have occurred when racial, religious, political, and other groups have been destroyed, entirely or in part.

“The punishment of the crime of genocide is a matter of international concern.

“The General Assembly therefore—

“Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices—whether private individuals, public officials, or statesmen, and whether the crime is committed on religious, racial, political or any other grounds—are punishable; * * *.”[596]

The General Assembly is not an international legislature, but it is the most authoritative organ in existence for the interpretation of world opinion. Its recognition of genocide as an international crime is persuasive evidence of the fact. We approve and adopt its conclusions. Whether the crime against humanity is the product of statute or of common international law, or, as we believe, of both, we find no injustice to persons tried for such crimes. They are chargeable with knowledge that such acts were wrong and were punishable when committed.

The defendants contend that they should not be found guilty because they acted within the authority and by the command of German laws and decrees. Concerning crimes against humanity, C. C. Law 10 provides for punishment whether or not the acts were in violation of the domestic laws of the country where perpetrated (C. C. Law 10, art. II, par. 1(c)). That enactment also provides “the fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.” (C. C. Law 10, art. II, par. 4(b).)

The foregoing provisions constitute a sufficient, but not the entire, answer to the contention of the defendants. The argument that compliance with German law is a defense to the charge rests on a misconception of the basic theory which supports our entire proceedings. The Nuernberg Tribunals are not German courts. They are not enforcing German law. The charges are not based on violation by the defendants of German law. On the contrary, the jurisdiction of this Tribunal rests on international authority. It enforces the law as declared by the IMT Charter and C. C. Law 10, and within the limitations on the power conferred, it enforces international law as superior in authority to any German statute or decree. It is true, as defendants contend, that German courts under the Third Reich were required to follow German law (i.e., the expressed will of Hitler) even when it was contrary to international law. But no such limitation can be applied to this Tribunal. Here we have the paramount substantive law, plus a Tribunal authorized and required to apply it notwithstanding the inconsistent provisions of German local law. The very essence of the prosecution case is that the laws, the Hitlerian decrees and the Draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime. We have pointed out that governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can scarcely be said that governmental participation, the proof of which is necessary for conviction, can also be a defense to the charge.

Frank recognition of the following facts is essential. The jurisdictional enactments of the Control Council, the form of the indictment, and the judicial procedure prescribed for this Tribunal are not governed by the familiar rules of American criminal law and procedure. This Tribunal, although composed of American judges schooled in the system and rules of the common law, is sitting by virtue of international authority and can carry with it only the broad principles of justice and fair play which underlie all civilized concepts of law and procedure.

No defendant is specifically charged in the indictment with the murder or abuse of any particular person. If he were, the indictment would, no doubt, name the alleged victim. Simple murder and isolated instances of atrocities do not constitute the gravamen of the charge. Defendants are charged with crimes of such immensity that mere specific instances of criminality appear insignificant by comparison. The charge, in brief, is that of conscious participation in a nation wide government-organized system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law by the authority of the Ministry of Justice, and through the instrumentality of the courts. The dagger of the assassin was concealed beneath the robe of the jurist. The record is replete with evidence of specific criminal acts, but they are not the crimes charged in the indictment. They constitute evidence of the intentional participation of the defendants and serve as illustrations of the nature and effect of the greater crimes charged in the indictment. Thus it is that the apparent generality of the indictment was not only necessary but proper. No indictment couched in specific terms and in the manner of the common law could have encompassed within practicable limits the generality of the offense with which these defendants stand charged.

The prosecution has introduced evidence concerning acts which occurred before the outbreak of the war in 1939. Some such acts are relevant upon the charges contained in counts two, three, and four, but as stated by the prosecution, “None of these acts is charged as an independent offense in this particular indictment.” We direct our consideration to the issue of guilt or innocence after the outbreak of the war in accordance with the specific limitations of time set forth in counts two, three, and four of the indictment. In measuring the conduct of the individual defendants by the standards of C. C. Law 10, we are also to be guided by article II, paragraph 2 of that law, which provides that a person “is deemed to have committed a crime as defined in paragraph 1 of this article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime * * *.”

Before considering the progressive degeneration of the judicial system under Nazi rule, it should be observed that at least on paper the Germans had developed, under the Weimar republic, a civilized and enlightened system of jurisprudence. A few illustrations will suffice. The power of judicial appointment and the independence of the judges was jealously guarded by the individual states within the Reich. The following acts were declared criminal under the provisions of the German criminal code:

The acceptance of bribes or inducements by a judge, offered for the purpose of influencing his decision—Section 334.

Action by an official, who, in the conduct or decision of a case, deliberately makes himself guilty of diverting the law to the disadvantage of one of the parties—Section 336.

The securing of a confession by duress—Section 343.

The act of an official who, in the exercise of his duty in a criminal proceeding, knowingly causes any person to escape penalty provided by law—Section 346.

Action by a superior officer who intentionally induces * * * his subordinate to commit a punishable act in office, or knowingly connives at such a punishable offense on the part of his subordinate—Section 357.

In the Weimar constitution it was provided that “the generally accepted rules of international law are to be considered as binding, integral parts of the law of the German Reich.” (Art. 4.)

The Constitution also guaranteed to all Germans—

Equality before the law (Art. 109);

Citizenship, the right of travel and emigration (Arts. 110, 111, and 112);

Freedom of person (Art. 114);

Freedom of speech, assembly, and association (Arts. 118, 123, and 124);

Right of just compensation for property expropriated (Art. 153);

Right of inheritance (Art. 154);

There were, however, in the Weimar constitution the germs of the disease from which it died. In article 48 of the constitution it was provided:

“The Reich President may, if the public safety and order of the German Reich are considerably disturbed or endangered, take such measures as are necessary to restore public safety and order. If necessary, he may intervene with the help of the armed forces. For this purpose he may temporarily suspend, either partially or wholly, the fundamental rights established in articles 114, 115, 117, 118, 123, 124, and 153.”

A review of the evidence will disclose that substantially every principle of justice which was enunciated in the above-mentioned laws and constitutional provisions was after 1933 violated by the Hitler regime.

The first step in the march toward absolutism was of necessity the assumption and consolidation of power. It was deemed essential that the government be authorized to make laws by decree, unhampered by the limitations of the Weimar republic, by the Reichstag, or by the independent action of the several German States (Laender). To accomplish this end on 28 February 1933 a decree was promulgated over the signature of President von Hindenburg, Chancellor Hitler, Reich Minister of the Interior Frick, and Reich Minister of Justice Guertner. Briefly stated, this decree expressly suspended the provisions of the Weimar constitution guaranteeing personal liberty, free speech, press, assembly, association, privacy of communication, freedom of search, and inviolability of property rights. The decree further provided that the Reich government might, to restore public security, temporarily take over the powers of the highest State authority. It was declared in the preamble that the decree was passed “in virtue of article 48 (2) of the Weimar constitution.” This is the article to which we previously referred and which authorized the Reichspraesident to suspend the very provisions which were in fact stricken down by the Hitler decree of 28 February. The decree was reinforced on 24 March 1933 by the act of an intimidated Reichstag. The enactment was subtly drawn to accomplish a double purpose. It provided that “laws decreed by the government may deviate from the constitution”, but the act did not stop there; it also provided that “laws of the Reich can be decreed by the government apart from the procedure provided by the Constitution.” We quote in part—

“Article 1.—Laws of the Reich can be decreed, apart from the procedure provided by the constitution of the Reich, also by the government of the Reich. This also applies to the laws mentioned in articles 85, paragraph 2, and 87 of the constitution of the Reich.

“Article 2.—The laws decreed by the government of the Reich may deviate from the constitution of the Reich as far as they do not concern the institution of the Reichstag and the Reich council as such. The rights of the Reichspraesident remain untouched.

“Article 3.—Articles 68 through 77 of the constitution of the Reich do not apply to laws decreed by the government of the Reich.”

Though the Enabling Act expressly repealed only a small portion of the constitution, nevertheless that portion which was repealed cleared the procedural way for the nullification of the rest if and when decrees should be promulgated by “the government.” On 14 July 1933 a law was passed declaring the Nationalsozialistische Deutsche Arbeiterpartei (NSDAP) to be the only political party and making it a crime to maintain or form any other political party.[597] Thus, it was made doubly sure that any legislation thereafter enacted by the Reichstag would be in harmony with the will of the government.

Although the process by which the Hitler regime came into power was tainted with illegality and duress, nevertheless the power thus seized was later consolidated and the regime thereafter did receive the organized support of the German people and recognition by foreign powers. On 30 January 1934, more than 10 months after the enactment of the enabling act, and subsequent to the Reichstag election of 12 November 1933, the Reichstag passed an act by unanimous vote providing that “the sovereign powers of the Laender are transferred to the Reich,” and further providing that “the Reich government may issue new constitutional laws.” The act was regularly signed by Reich President von Hindenburg, and by Reich Chancellor Hitler, and Minister Frick.[598] The provisions of the Enabling Act were renewed by acts of the Reichstag on 30 January 1937 and again on 30 January 1939.

On 14 June 1942, Dr. Lammers, Reich Minister and Chief of the Reich Chancellery, stated that they would “stress the fact that the Fuehrer himself and the Reich cabinet should not be eliminated from the powers of legislation.”

The conduct of the defendants must be seen in a context of preparation for aggressive war, and must be interpreted as within the framework of the criminal law and judicial system of the Third Reich. We shall, therefore, next consider the legal and judicial process by which the entire judicial system was transformed into a tool for the propagation of the National Socialist ideology, the extermination of opposition thereto, and the advancement of plans for aggressive war and world conquest. Though the overt acts with which defendants are charged occurred after September 1939, the evidence now to be considered will make clear the conditions under which the defendants acted and will show knowledge, intent, and motive on their part, for in the period of preparation some of the defendants played a leading part in molding the judicial system which they later employed.

Beginning in 1933, there developed side by side two processes by which the Ministry of Justice and the courts were equipped for terroristic functions in support of the Nazi regime. By the first, the power of life and death was ever more broadly vested in the courts. By the second, the penal laws were extended in such inconclusive and indefinite terms as to vest in the judges the widest discretion in the choice of law to be applied, and in the construction of the chosen law in any given case. In 1933, by the law for the “Protection against Violent Political Acts,” the death sentence was authorized, though not required, as to a number of crimes “whenever milder penalty has been prescribed hitherto.”[599]

On 24 April 1934, the definition of high treason was greatly expanded and the death sentence was authorized, though not required, in numerous instances. The manner in which this law was applied renders it all-important. The following provisions, among others, illustrate the scope of the amended law and the discretionary power of the judge:

“83. Whoever publicly incites to or solicits an undertaking of high treason shall be punished by confinement in a penitentiary not to exceed 10 years.

“Whoever prepares an undertaking of high treason in any other way shall be punished in like manner.

“The death penalty, or confinement in a penitentiary for life, or for not less than 2 years, shall be inflicted:

“(1) if the act was directed toward establishing or maintaining an organized combination for the preparation of high treason or

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“(3) if the act was directed toward influencing the masses by making or distributing writings, recordings, or pictures, or by the installation of wireless telegraph or telephone, or

“(4) if the act was committed abroad or was committed in such a manner that the offender undertook to import writings, recordings, or pictures from abroad or for the purpose of distribution within the country.”[600]

On 20 December 1934, the government promulgated the following enactment “Law on Treacherous Acts against State and Party and for the Protection of Party Uniforms,” which provided in part as follows:

“Chapter 1. Article 1. (1) Unless heavier punishment is sanctioned under the authority of a law previously established, imprisonment not to exceed 2 years shall be imposed upon anybody deliberately making false or grievous statements, fit to injure the welfare or the prestige of the government of the Reich, the National Socialist Workers’ Party, or its agencies. If such statements are made or circulated in public, imprisonment for not less than 3 months shall be imposed.

“Article 2. (1) Anyone who makes or circulates statements proving a malicious, baiting or low-minded attitude toward leading personalities of the State or the NSDAP, or toward orders issued by them or toward institutions created by them—fit to undermine the confidence of the people in its political leadership—shall be punished with imprisonment.

“(2) Statements of this kind which are not made in public shall warrant the same punishment—provided the offender figures on his statements eventually being circulated in public.”

A decisive step was taken by the “Law to Change the Penal Code,” which was promulgated on 28 June 1935 by Adolf Hitler as Fuehrer and Reich Chancellor, and by Dr. Guertner as Reich Minister of Justice. Article 2 of that enactment is as follows:

“Article 2. Whoever commits an act which the law declares as punishable or which deserves punishment according to the fundamental idea of a penal law and the sound concept of the people, shall be punished. If no specific penal law can be directly applied to this act, then it shall be punished according to the law whose underlying principle can be most readily applied to the act.”

In substance, this edict constituted a complete repudiation of the rule that criminal statutes should be definite and certain and vested in the judge a wide discretion in which Party political ideology and influence were substituted for the control of law as the guide to judicial decision.

Section 90 (f) of the Penal Code, as enacted on 24 April 1934, provided:

“Whoever publicly, or as a German staying abroad, causes serious danger to the reputation of the German nation by an untrue or grossly inaccurate statement of a factual nature, shall be punished by confinement in a penitentiary.”

The act was amended on 20 September 1944 as follows:

“In especially serious cases a German may be punished by death.”[601]

By the act of 28 June 1935 it was provided:

“Whoever publicly profanes the German National Socialist Labor Party, its subdivisions, symbols, standards, and banners, its insignia or decorations, or maliciously and with premeditation exposes them to contempt shall be punished by imprisonment.

“The offense shall be prosecuted only upon order of the Reich Minister of Justice who shall issue such order in agreement with the Fuehrer’s deputy.”[602]

By the law of 28 June 1935 it was provided:

“If the main proceedings show that the defendant committed an act which deserves punishment according to the common sense of the people but which is not declared punishable by the law, then the court must investigate whether the underlying principle of a penal law applies to this act and whether justice can be helped to triumph by the proper application of this penal law. (Article 2 of the Penal Code.)”[603]

A decree of 1 December 1936 provides in part as follows:

“Section 1. (1) A German citizen who consciously and unscrupulously, for his own gain or for other low motives, contrary to legal provisions smuggles property abroad or leaves property abroad and thus inflicts serious damage to German economy is to be punished by death. His property will be confiscated. The perpetrator is also punishable, if he commits the misdeed abroad.”[604]

On 17 August 1938, more than a year before the invasion of Poland, a decree was promulgated against undermining German military efficiency. It provided in part:

“Section 5. (1) The following shall be guilty of undermining German military efficiency, and shall be punished by death:

“1. Whoever openly solicits or incites others to evade the fulfillment of compulsory military service in the German or an allied armed force, or otherwise openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms; * * *.”[605]

Under this law the death sentence was mandatory.

By the decree of 1 September 1939 the ears of the German people were stopped lest they hear the truth:

“Section 1.—Deliberate listening to foreign stations is prohibited. Violations are punishable by hard labor. In less severe cases there can be a sentence of imprisonment. The radio receivers used will be confiscated.

“Section 2.—Whoever deliberately spreads news from foreign radio stations which is designed to undermine German military efficiency will be punished by hard labor and in particularly severe cases by death.”[606]

It is important to note that discretion as to penalty was vested in the court.

On 5 September 1939, by the Decree Against Public Enemies, it was provided that looting in liberated territory may be punished by hanging. The following additional provisions are of importance because of the arbitrary manner in which the instrument was construed and applied by the courts. The provisions are as follows:

“Section 2.—Whoever commits a crime or offense against life, limb or property, taking advantage of air raid protection measures, is punishable by hard labor of up to 15 years or for life, and in particularly severe cases punishable by death.

“Section 3.—Whoever commits arson or any other crime of public danger, thereby undermining German military efficiency, will be punished by death.

“Section 4.—Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to 15 years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable.”[607]

On 25 November 1939 the death penalty was authorized as punishment for intentionally or negligently causing damage to war materials and the like, if it endangers the fighting power of the German armed forces. The death penalty was also authorized in case of anyone who “disturbs or imperils” the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population.[608]

On 5 December 1939 the death penalty was authorized for various crimes of violence and it was provided that “this decree is also applicable to crimes committed before it became valid”.

On 4 September 1941 the Criminal Code was supplemented and changed to provide the death penalty for dangerous habitual criminals and sex criminals “if necessitated for the protection of the national community or by the desire for just expiation”. The decree was signed by Adolf Hitler and by the defendant Dr. Schlegelberger in charge of the Reich Ministry of Justice.

By the decree of 5 May 1944, the judges were substantially freed from all restrictions as to the penalty to be invoked in criminal cases. That decree reads as follows:

“With regard to all offenders who are guilty of causing serious prejudice or seriously endangering the conduct of war, or the security of the Reich, through an intentional criminal act, a penalty may be imposed in excess of the regular penal limits up to the statutory maximum for a given type of punishment, or hard labor for a term or for life, or death, if the regular statutory maximum limits are insufficient for expiation of the act according to the sentiment of the people. The same shall also apply to all offenses committed by negligence by which one made himself guilty of a particularly grave prejudice or a particularly serious danger to the conduct of war, or to the security of the Reich.”[609]

On 20 August 1942 Hitler issued the famous decree which marks the culmination of his systematic campaign to change the German judicial system into an instrumentality of the NSDAP. The decree was as follows:

“A strong administration of justice is necessary for the fulfillment of the tasks of the great German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration of Justice and to take all necessary measures in accordance with my directives and instructions made in agreement with the Reich Minister and Chief of the Reich Chancellery and the Leader of the Party Chancellery. He can hereby deviate from any existing law.”[610]

The statutes which we have reviewed were merely steps in the process of increased severity of the criminal law and in the development of a loose concept concerning the definition of crime. The latter concept was especially evident in the statutes concerning the “sound sentiment of the people”, crime by analogy, and undermining the military efficiency of the nation. In place of the control of law there was substituted the control of National Socialist ideology as a guide to judicial action.

The Draconic laws to which we have referred were upon their face, of general applicability. The discriminations on political, racial, and religious grounds are to be found not in the text, but in the application of the text.

But the Nazis were not content with statutes of a nondiscriminatory nature even in view of the discriminatory manner in which they were enforced. Coincidentally with the development of these laws and decrees there arose another body of substantive law which expressly discriminated against minority groups both within and without the Reich, and which formed the basis for racial, religious, and political persecution on a vast scale. On 7 April 1933, a decree by the Reich government provided in part that—

“Article 2. Persons who, according to the Law for the Restoration of the Professional Civil Service of 7 April 1933,[611] are of non-Aryan descent, may be refused permission to practice law, even if there exists none of the reasons enumerated in the Regulations for Lawyers. The same rule applies in cases, as where a lawyer described in section 1, clause 2, wishes to be admitted to another court. * * *”

“Article 3. Persons who are active in the Communistic sense are excluded from the admission to the bar. Admissions already given have to be revoked.”[612]

The act was implemented by the power of injunction. The fact that the license to practice law had been canceled was also stated as a ground for the cancellation of employment contracts and office leases.

On 15 September 1935, the Reichstag enacted the “Law for the Protection of German Blood and Honor.” We quote—

“Article 1. (1) Marriages of Jews and citizens of German or related blood are prohibited. Marriages which are concluded nevertheless, are void even if they were concluded abroad in order to circumvent this law.

“(2) Only the district attorney can sue for nullification of marriage.

“Article 2. Sexual intercourse (except in marriage) between Jews and German nationals of German or German-related blood is forbidden.”