United Nations Nations Unies RESTRICTED

E/CN.tyW.19
ECONOMIC CONSEIL 15 May 19W
AND ECONOMIQUE a
SOCIAL COUNCIL E T SOCIAL

INFORMATION CONCERNING HUMAN

RIGHTS ARISING FROM TRIAIS

OF WAR CRIMINALS

REPORT

Prepared by the

UNITED NATIONS WAR CRIMES

COMMISSION

In Accordance v ith the Request

Received from the United Nations

/PREFACE
 E/CN.V w. 19
Page i

PREFACE

The Economic and S ocial Council of the United Nations adopted on

21 July 19h6, a R esolution proposed by the Commission on Human R ights.
In paragraph l- o f th is R esolution, under the heading "Documentation",
the Secretary-G eneral of the Uhited Nations vas requested to make
arrangements fo r "the c o lle c tio n and p u b licatio n of inform ation concerning
human rig h ts a ris in g from t r i a l s of war crim in als, quislin g s and
tr a ito r s , and in p a rtic u la r from the Nrnberg and Tokyo>Trials".
In a l e t t e r from the D irecto r of the D ivision of Human R ights,
Uhited N ations, dated 15 May 19^7, th e Chairman o f the United Nations
War Crimes Commission was informed;
(a) That in the opinion o f the S e c re ta ria t of the United Nations,
the United Nations War Crimes Commission was in a b e tte r p o sitio n
than the United Nations S e c re ta ria t to undertake the work connected
w ith th e c o lle c tio n and p u b licatio n o f inform ation concerning
humen rig h ts a ris in g from t r i a l s of war crim in als, q u islin g s and
t r a ito r s ;
(b) That the S e c re ta ria t o f the United Nations would, th e re fo re ,
be pleased i f the United Nations War Crimes Commission could
undertake the work fo r which the Secretary-G eneral of the
United Nations had been requested to make arrangements.
At i t s meeting held on 21 May 19^7, the United Nations War Crimes
Commission decided to accept re s p o n s ib ility fo r the work as requested as
far as inform ation a ris in g from t r i a l s of war crim inals was concerned.
I t reserved i t s view ae to whether the c o lle c tio n of Information a ris in g
frem t r i a l s of quislings and tr a ito r s would also be p ra c tic a b le .
The whole question was then re fe rre d by the United Nations War
Crimes Commission to i t s le g a l Committee o f which S ir Robert Craigie is
Chairman, which th e re a fte r made the necessary recommendations to the
Commission and organized and supervised the execution o f th is work u n til
4

its completion.
In response to a l e t t e r from the D irector of the Human Rights
Division, dated 29 May 19^7, the United Nations War Crimes Commission
furnished to th e United Nations S e c re ta ria t on 27 August 19^7, a
Progress Report giving an account of the preparatory work to be
undertaken and a te n ta tiv e o u tlin e of the f in a l Report on the su b ject.
I t also submitted a number of preparatory papers.
When undertaking to prepare th is Report, the Uhited Nations War
Crimes Commission was fu lly aware of the wide scope of the undertaking;
from the o u tset i t was re a liz e d th a t to present a f u l l and complete
R ep o rt
 E/CN.V u . 19
Page i i

Report many months of intensive research would he necessary fo r the

c la s s ific a tio n of sources and the se le c tio n of inform ation to be
u tiliz e d .
The time made av ailab le fo r the completion of th is work has proved
to be running counter to these requirem ents. In h is l e t t e r o f I 5 May 19**7,
re fe rre d to above, the D irecto r o f the Human Rights D ivision expressed
the wish to have a su b sta n tia l p a rt of th e Report by 25 August 19U7 ,
when i t was o rig in a lly Intended to hold the Second Session o f the Human
Rights Commission. This meeting was postponed, and th e re fo re in
consequence o f th e postponement the D irector of the Human Rights
D ivision, in h is l e t t e r dated 10 November 19^7, requested th a t the fin a l
Report should be submitted not la te r than 1 December 19^7.
These l e t t e r s embodied a d e fin ite proposal and i t s acceptance by
th is Commission, subject to th e lim ita tio n as to q uislings and tr a ito r s ,
reference to which is made l a t e r . I t may perhaps not be superfluous
to interpose here a few words of explanation.
The Information which th is Commission was to c o lle c t and publish
was to be th a t concerning human rig h ts and was to be derived from the
t r i a l s of war crim in als. The a b stra c t concept o f war crimes has been
recognized fo r some centu ries but has come in to prominence and p ra c tica l
importance mainly during and since the l a s t great War, th a t of 1939
to 19^5. War has been described as organized murder and d eso latio n .
But th ere was a question of g re a t moment because of the r iv a l contentions
advanced on the two s id e s . One sid e , th a t o f the A xis, a sse rte d the
absolute re s p o n s ib ility o f b e llig e re n ts , who, i t was a ss e rte d , were
under no o b lig atio n to resp ect human r ig h ts , but were e n title d to
trample them underfoot wherever the m ilita ry forces found them
inconvenient fo r the waging o f war. This is the to ta lita r ia n war aB
envisaged by the Axis powers. This doctrine was repudiated as contrary
not only to m orality but to recognized in te rn a tio n a l law which prescribed
metes and bounds fo r the v io la tio n even in war o f human r ig h ts . This
l a t t e r d octrine involved a lso th e fu rth e r'p rin c ip le th a t th ere was
in d iv id u al re s p o n s ib ility fo r v io la tio n s of human rig h ts in war time,
. beyond the lim its perm itted by-the law o f war. The idea of individual
re s p o n s ib ility , i f i t was to be conceived in terms o f law, involved a
le g a l system and procedure, in order to decide the question of
in d iv id u al c rim in a lity . The A llie s had announced th a t war crimes were
to be punished and a t the close of th e war organized a system of tr ia ls
o f alleged war crim in als. Many hundreds o f such t r i a l s have been
held and judgments d eliv ered . This i s in substance a new form of
inform ation fo r the determ ination of the existence and nature o f war
crim es. I t flowed d ire c tly from the ideas o f Individual penal
/responsibili*"
 E/CN.V w. 19
Page H i

re s p o n sib ility and of an in te rn a tio n a l law of war crim es. That lav
had been almost e n tire ly to be found in the great In te rn a tio n a l tr e a tie s
or conventions, such as the Hague and Geneva Conventions and the Pact
of P a r is . But the g e n erality of the terms of these in te rn a tio n a l
enactments required d e fin itio n and p recisio n which oould not be obtained
by Ju d ic ia l decisions in t r i a l s as they arose. I t is tru e th a t no
p a rtic u la r decision is of coercive a u th o rity , but the accumulation of
decisions goes to contribute a Jurisprudence, even before th e ir f u l l
scope and v a rie ty can be used to b u ild up an in te rn a tio n a l code. I t
was to c o lle c t and analyze and explain these decisions and e l i c i t th e ir
fu ll force and meaning th a t the United Nations put upon th is Commission
the ta sk embodied in the le tte r s Just s e t out.
I t follows th a t i f the m aterial inform ation is incomplete, the work
which th is Commission has accomplished in the m atter must be
correspondingly incomplete. As w ill now appear, a great p art of the
information is indeed a t present unavailable, and hence the Beport i t s e l f
is of n ecessity of a prelim inary and exploratory ch aracter.
In the f i r s t place the stage reached in the conduct of war crime
t r i a l s renders any f in a l analysis impossible fo r th e p resen t. Many
important t r i a l s have not been completed and coma have not even begun.
Amongst those s t i l l in progress i 6 the t r i a l of the Japanese major war
criminals before th e In te rn a tio n a l M ilita ry Tribunal a t Tokyo. There
are a lso in progress some ten very important t r i a l s held by
United S ta te s M ilita ry Tribunals a t Nrnberg; these are known as
"Second Nrnberg T ria ls " , or "subsequent proceedings", to in d icate th a t
they are a sequence to the t r i a l of German major war crim in als, completed
by the In te rn a tio n a l M ilita ry Tribunal a t Nrnberg in October 1 9 ^ .
They concern high-ranking Nazi Party members, o f f ic ia ls and other
adherents of the Nazi regime, besides those tr ie d by th e In te rn a tio n a l
M ilitary T ribunal. Up to d ate, only three of them have been completed,
namely the t r i a l of tw enty-three doctors and s c ie n tis ts who c arried out
criminal experiments on victim s of many n a tio n a litie s (Case No. 1);
the t r i a l of ex-Air Marshal Milch fo r crim inal medical experiments and fo r
enslavement, to rtu re and other a tr o c itie s (Case No. 2 ); and the t r i a l
of o ff ic ia ls of the ex-M inistry of J u s tic e , who were prosecutod fo r
committing crimes through le g is la tiv e enactments (Case No. 3)* The
following t r i a l s are a t l l l in progress: the t r i a l of the leading
o ffic ia ls in charge of concentration camps (Case No. U); the t r i a l of
o ffic ia ls in charge of foreign workers brought to Germany fo r slave
labour (Case No. 5)j the t r i a l of in d u s tr ia lis ts who d irected the world
wide operations of the g reat chemical organization, " I. G. Farbon-
indu8t r i e " , prosecuted fo r crimes ag ain st peace, war crimes and
/crimes against
e /CN.U/H.19
Page iv

crimes against humanity (Case No. 6); the t r i a l o f o ffic e rs responsible

fo r the system atic k illin g of hostages (Case No. 7) ; th e t r i a l of
o ffic e rs g u ilty o f carrying out mass murders through sp e c ia l u n its called
"Einsatzgruppen" (Case No. 9 ); the t r i a l of in d u s tr ia lis ts from the
armament firm "Krupp", which is sim ila r in scope to th a t of the
" I. G. Farbenindustrie" (Case No. 10); and the t r i a l of o f f ic ia ls from
the ex-M inistry fo r Foreign A ffairs (Case No. 11).
Other courts are also s t i l l engaged in th e process of conducting
t r i a l s , many of vhioh may prove to be of the utmost importance fo r
questions connected w ith human rig h ts . Such i s , in p a rtic u la r, the case
w ith A llied M ilitary Courts in Germany and with German n a tio n al courts
operating under A llied supervision, whose competence i t is to hear cases
concerning, in te r a l i a , crimes against humanity, including those committed
a g ain st German c itiz e n s and s ta te le s s persons. Many very important tr ia ls
are being held in c e rta in A llied c o u n trie s, e . g , , Denmark, France, Norway,
Poland. In the Far East hundreds of important t r i a l s have been and are
being conducted. F in a lly , the courts of c e rta in co u n tries, such as those
of the Netherlands and of Belgium, are only on the point o f commencing
th e ir war crimes t r i a l s which should b rin g to lig h t inform ation of great
value.
The United Nations War Crimes Commission was, th u s, lim ited as to its
sources of inform ation which, although concerning a wide f ie ld , were far
from representing a complete survey o f a l l th e t r i a l s which should be
included in a comprehensive Beport.
The Beport submitted is a lso incomplete in another re s p e c t. I t has
not been possib le in the time appointed to make a thorough study even of
such tra n s c rip ts of completed t r i a l s as are av ailab le to the Commission.
Over a thousand individual t r i a l s have been taken in to consideration and
have been studied as fa r as th is was possible in the period of le ss than
fiv e months; the m aterial which would properly req u ire to be examined
included tens o f thousands o f pages o f tra n s c rip t re la tin g to important
t r i a l s , such as the Nrnberg T r ia l. The time fa c to r has thus made i t
im perative to proceed with the work by d e lib e ra tly discarding fo r the
time being a se rie s of su b jects, or sources of inform ation, and by
concentrating on the more important and illu s tr a tiv e to p ic s.
The inform ation furnished in th e Beport is divided in to two main
p a rts . The f i r s t deals with the question o f human rig h ts as they were
v io la te d or protected under th e ra le s o f w srfare, i - c - , under th e law3
end customs o f war. In th is p a rt humar rig h ts are considered as arisin g
from the re la tio n sh ip between subjects of b e llig e re n t Powers, th a t is to
say between members of the armed fo rces, prisoners of war and c iv ilia n s ,
/including
 E/CN.Vvr.19
Page v

including the in h ab itan ts of occupied t e r r i t o r i e s , o f two countries

which are in a s ta te of war. In the second p a rt human rig h ts are
considered in reference to, fyie re la tio n sh ip between the S ta te and persons
under i t s own J u ris d ic tio n . In th is p a rt the question is envisaged
beyond the s t r i c t period o f a time of war; the re p o rt deals with
v iolations of human rig h ts committed before the. war in connection w ith
the planning and prpart ion o f a war o f aggression and, on the o th er
hand, w ith the more general problem o f v io la tio n s committed in time of
peace, irre sp e c tiv e of the preparatio n or the launching o f a war of
aggression. Of the various problems a ris in g from a study o f th is
subject, one has been tre a te d more ex ten siv ely , namely, how f a r the
Ju risd ictio n o f the In te rn a tio n a l M ilita ry Tribunal a t Nrnberg and of
the municipal courts e stab lish ed in Germany covers encroachments by
the le g is la tu re or executive of Nazi Germany upon the fundamental rig h ts
and freedoms of i t s c itiz e n s .
The inform ation furnished in the f i r s t p a rt is grouped in to th ree
main chapters, arranged according to the sources of inform ation. One
deals w ith information concerning selected subjects a ris in g from the
Nrnberg T r ia l, excluding offences against Germans and s ta te le s s persons
which have been considered in the second p a rt o f the Report. The
second chapter deals w ith inform ation a ris in g from the Tokyo T ria l;
and the th ir d with inform ation a ris in g from other t r i a l s . Reasons fo r
the inclusion of the Tokyo T r ia l, although i t is not completed, are
given in the appropriate places of the Report. In every chapter the
information has been gathered according to the subject m atter covered
and in th i3 respect there is a s im ila rity of p resen tatio n in the main
sections of each chapter. There i s , however, a d ifferen ce to be noted
in respect of Chapter III.. In th is chapter, which, as s ta te d , deals
with t r i a l s other than those conducted by the In te rn a tio n a l M ilitary
Tribunals a t Nrnberg and Tokyo, an attempt has been made to cover a wider
field than in those dealing with the Nrnberg and Tokyo t r i a l s , and
to make as f u l l a use as possible of the verbatim records of the t r i a l s
concerned. Because of the fa c t th a t more than a thousand t r i a l s have
been involved, however, here too a thorough analysis of a l l subjects
covered has not proved p o ssib le .
The inform ation furnished in the second p a rt of the Report is
arranged in i t s e n tire ty according to .s u b je c t m atter, and not according
to sources. This was necessary because, fo r every subject under review
in the main,chapter (Chapter I ) , there are sev eral sources o f inform ation
to be considered sim ultaneously.
Both p a rts are preceded by a B ttstorical Survey of the problem of
violations of human rig h ts as i t a ris e s w ithin the sphere of in te rn a tio n a l
/law dealing
 E/CN.V w.19
Page v i

law dealing w ith war'crim es 1 Time has not perm itted the elaboration of
a l l the stages of th is h is to r ic a l asp ect, so th a t the sectio n dealing
with the period 1939- 19&5 has been compressed and lim ited to an essen tial
o u tlin e only.
The request received from the United Nations S e c re ta ria t included,
in accordance w ith the above-mentioned Resolution of the Economic and
Social Council, the c o lle c tio n o f inform ation a ris in g from the t r i a l s
o f quislings and t r a i t o r s . When considering the p o s s ib ility of
performing th is ta sk , the United Nations War Crimes Commission came to
the conclusion th a t, in ad d itio n to the time fa c to r, i t would not be
fe a s ib le , fo r the following reasons. F ir s tl y , i t waB not w ithin the
terms o f reference o f the Commission to deal w ith a c ts of treaso n and
consequently with t r i a l s of tr a ito r s and q u islin g s. The Commission
was competent to deal w ith such cases only inasmuch as a t r a i t o r or
q u islin g had, a t the same time and in c id e n tal to h is treasonable
a c ti v itie s committed war crimes or crimes ag ain st humanity. An
examination o f the f il e s of the Commission in d icates th a t such oases
are comparatively few. The second reason follows fron the f i r s t . GSie
Commission did not possess the sources of inform ation concerning t r i a l s
of quislings and tr a i t o r s and was th erefo re unable, in th e time available,
to present inform ation regarding them.
N evertheless, the Commission fu lly re a liz e the importance of such
Inform ation fo r the purposes which the United Nations have in view and
appreciate th a t a Report based so le ly on war crime t r i a l s would not give
a comprehensive p ic tu re . I t was thought th a t t r i a l s of Germans accused
of offences ag ain st Germans and s ta te le s s persons would fu rn ish information
sim ila r to th a t which can be found in t r i a l s o f q uislings and tr a ito r s
charged w ith offences against th e ir fe llo w -c itiz e n s. The tra n s c rip ts
o f the former are more re a d ily accessib le to the Commission than those
o f th l a t t e r . The second p a rt o f the Report d e a ls, th e re fo re , mainly
with t r i a l s of Germans accused of offences ag ain st th e ir co-nationals
and is based, f i r s t , on the inform ation a ris in g from the relev an t parts
of the Nrnberg t r i a l , and secondly on the inform ation which can be
found in t r i a l s conducted by the municipal courts in Germany. To
in d ic a te the value of a comparative study o f t r i a l s of quislings held
in A llied c o u n trie s, a b r ie f account of one such t r i a l has been given -
th a t of P ie rre Laval.
Th inform ation embodied in th is.R ep o rt has been co llected with
the f u l l re a liz a tio n th a t i t was not an end in i t s e l f but ra th e r
designed to serve the sp ec ific purpose of co n trib u tin g to the ta sk of
the Commission on Homan R ights, in preparing an in te rn a tio n a l b i l l of
r ig h ts , or in te rn a tio n a l d eclaratio n s 6r conventions on c iv il lib e rtie s .
/ i n view of
 e /CN.U/w.19
Page v ii

In view of t h is , the following documents submitted to the D rafting

Committee of the Commission on Human Rights were taken in to consideration
as a guide fo r the p reparation o f the Report:
(a) The d ra ft D eclaration concerning Fundamental Human
Rights submitted by the Panamanian delegation to the
San Franoisco Conference;
(b) The United Kingdom d ra ft of an In te rn a tio n a l B ill
of Human R ights;
(c) The D raft O utline of an In te rn a tio n a l B ill of Rights
prepared by the S e c re ta ria t of the United R ations.
I t must, however, be observed th a t i t was n e ith e r possible nor
necessary fo r th is Report to deal w ith a l l the rig h ts enumerated in these
documents. Nor was i t p o ssib le , in view o f the prelim inary nature o f the
Report, to e s ta b lis h a d e ta ile d catalogue of a l l the human rig h ts involved
In the crimes under review and to draw d e fin itiv e and express conclusions
on th is su b je c t. The rig h ts involved have been re fe rre d to in a more
general way, and only such conclusions reached as appeared possible and
advisable a t the present stage o f the inquiry.
In connection with the preceding observation th ere are one or two
general conclusions which can be made on th e Report as a whole and to
which p a rtic u la r a tte n tio n should be drawn. In the f i r s t place i t
would appear th a t a resumption of the research in itia te d by the
United Nations War Crimes Commission would u ltim ately re s u lt in the
collectio n and pub licatio n o f a comprehensive body of inform ation on a
subject h ith e rto v ir tu a lly untouched. The second conclusion is th a t
the inform ation co llected would serve more than one purpose of importance.
I t would, in the f i r s t place, contribute to a fu rth e r improvement in
the le g a l p ro te c tio n of human rig h ts by in te rn a tio n a l agreement. I t
should, in a d d itio n , be invaluable to the purpose of developing and
codifying in te rn a tio n a l law, e ith e r w ithin the more narrow sphere of
the laws and customs of war, or w ithin the wider f ie ld of an in te rn a tio n a l
law progressing on lin e s which would tend to elim inate gradually the
tra d itio n a l d iv isio n between war and peace, and thus e sta b lis h a
universal system outlawing war in a l l i t s m an ifestatio n s. F in a lly , the
Information thus c o lle cte d should serve the more p a rtic u la r purposes
of h is to ria n s , so c io lo g ists , economists, s c ie n tis ts , psychologists,
and other s p e c ia lis ts .
Only a f te r such f u l l in v e stig a tio n would i t be possible to present
a complete survey w ith a l l the d e ta ils required to deal simultaneously
with each p a rtic u la r sphere of in q u iry . Such a document would, in
p a rtic u la r, provide a d e fin ite answer to questions which I t has not been
/p o ssib le
e /CN.U/w.19
Page v i i i

p o ssib le to solve in th e ir e n tire ty in th is Report, namely:

(a) Were th ere cases where th e e x istin g provisions of
In te rn a tio n a l Law did not fu rn ish s u ffic ie n t b a sis fo r
imposing a Just penalty fo r a c tiv itie s v io la tin g human
rig h ts?
(b) Were there cases showing th a t more elaborate
provisions of in te rn a tio n a l law could have prevented
v io la tio n s of human rig h ts?
(c) Do war crime t r i a l s held so fa r warrant the conclusion
th a t in te rn a tio n al law as applied by the courts is being
s u ffic ie n tly developed by th is method as to extent the
p ro te c tio n of minimum standards of human rig h ts to human
beings everywhere and not only to those of sp e c ific groups,
such a s, fo r instance, " a llie d " n atio n als and " a llie d "
in te re s ts during the la te war?
These and many more questions should, i t is suggested, be answered
i f the c o lle c tio n of information a ris in g from war crime t r i a l s is to be
f u lly u tiliz e d by the United N ations. They can be fu lly answered
only i f the present work is elaborated in the fu tu re so as to embrace
the t r i a l s s t i l l in progress and to complete th e research as undertaken
o f those t r i a l s reviewed in th is Report.
The United Nations War Crimes Commission ventures, in conclusion,
to observe th a t a great opportunity o f illu m in atin g a most v i t a l
problem of world a f f a ir s would be lo s t i f the c e n tra l to p ic o f th is
Report were not made the subject o f more d e ta ile d , complete and
elaborate exploration in the fu tu re .
The Report has been prepared by members of the Legal S ta ff of
th e Commission, whose names appear in the ta b le o f contents under the
appropriate headings.

/ table op contents
 E/CN.VW.19
Page lx

TABUE Of CONTENTS

2fi
P R E F A C E . . 4 4 4, , . . , . 4 ,, 1 y;

HISTORICAL SURVEY
OF THE PROBLEM OF VIOLATIONS OF HUMAN RIGHTS
(War Crimes and Crlaes ag ain st Humanity)

(Rapporteur: Ur. J . Litawski)

Introductory .............................................................................................................. I
I. The Hague Conventions of I 9 0 7 ....................................................... 3
II. Development0 during the F ir s t World War:
1. The Iteseacres of the Armenians In Turkey............................ 7
2. The 1919 Commission of R e s p o n s ib ilitie s ........................ . 7
3. The Peace T reaties of 1919-1923.................................... 13
IH . The Period between the World Wars:
1. The Italo-A byssinian War of 1935-36 .................................... 16
2. The Spanish C o n f l i c t ................................................................. I7
IV. Note on the Developments during the Second World War . . . . 19
PART I .
INFORMATION ON HUMAN RIGHTS PROTECTED
BY THE LAWS AND CUSTOMS OF WAR
Introduction to the Nrnberg and Tokyo !&*ialc............................................... 22
(Rapporteurs: Dr. J . Litawski and Dr. R. Zivkovi)

CHAPTER I - THE NRNBERG TRIAL

(Rapporteur: Dr. J . Litaw ski)
A. . Legal Basie of the T r i a l ......................................................... 24

The London Agreement - The Charter

B. J u ris d ic tio n of the T r ib u n a l................................................. 26
Introductory - The B erlin Protocol

I. . J u ris d ic tio n over Offences:

(a) Conventional War C rim e s........................................ 29
Conception - The rig h t to punish.
D ifferen t Kinds - C onsiderations.
(b) Crimes against humanity ........................................ 33
The three p rin c ip le s - A ttitu d e to the law.
(c) Crimes ag ain st peace................................................ 38
The supreme crime against humanity.
(d) Conspiracy to cornait war crimes and crimes
against humanity....................................................... 39
R ejection of charges.
/II. J u ris d ic tio n over
E/CN.VW.19
Page X

Page

II. J u ris d ic tio n over P e r s o n s ........................................... ^0

Major War Crim inals. Individual R esponsibility.
Leaders, o rg an isers, in s tig a to rs and accomplices.
Actual p e rp e tra to rs. The degree of
- re s p o n s ib ility . Attempc. O ffic ia l p o sitio n of
offenders. Superior orders. Criminal groups
and organizations.
C. V iolations of the Rights of the Victims of War Crimes
Introductory. '........................... ^5
I. General Observations. ........................ ^7
- II. Murder and Ill-tre a tm e n t of C i v i l i a n s .................... *^9

1. Gienocide....................... ^9
2. K illin g of "useless e a t e r c " ....................... . . 53
3. Msdical e x p e rim e n ts............................................... 53
. . III. Murder and Ill-tre a tm e n t of Prisoners of War, and
of other Members of the Armed F o rces........................ 5^

1. K illin g of "Commandos"........................................... 5^
2. -A pplication of the la v to Soviet v ictim s. . . 55

XV. Taking and K illin g of Hostages..................................... 56

V. Slave Labour......................................................................... 5
VI. Plunder of P ublic and P riv ate P roperty..................... 6l
V II. Wanton D estruction of C itie s , Tovns and V illages
and D evastation not J u s tif ie d by m ilita ry
n e c e s s i t y ........................................................................... 66
V III. The Exaction of C ollective P e n a ltie s ......................... 67
IK. Forcing C iv ilian s of Occupied T e rrito rie s to
svear alleg ian ce to a H o stile P o w e r........................ 68

I. Germanisation of Occupied T e r r i t o r i e s ..................... 69

D. Summary observations ............................................................... 69
CHAPTER I I - OHE TOKIO TRIAL....................................................... I2
(Rapporteur: Dr. R. Zivkovi)
A. Legal Basie of the TokyoT r i a l .............................................. 73
Proclamation of the Supreme Commander . . . . . . 73
The C h a r te r ....................................................................... 7*
Composition of the Far E astern T r ib u n a l................ 75

B. J u ris d ic tio n of the Far E astern Tribunal ........................ 75

Significance fo r human rig h ts .................................... 75
Provisions Of the Charter ........................................... 76
Comparison v ith the Nrnberg C harter........................ 77
(i) Crimes ag ain st peace................................... 77
( i i ) War Crimes....................................................... 79
( i l l ) Crimes ag ain st Humanity ........................... 1-
/Conclusion as to
 E/CN.4/W.19
Page x i

Pare
Conclueion an to the Ju rio d ic tio n over offencen 8l
JuriB diction over per&ons ....................................... 8l
Criminal o rgan izatio n s............................................... 83
C. V iolationc of the Righta of the Victims of War Crime 84
1. Human Rights v io lated by "War Crimen". . . 84
2. Attempt to Introduce new type of
in te rn a tio n a l crime....................................... 86
3. Human Rights v io lated or lia b le to be
tre a te d an v io lated by "Crimen against
Humanity"........................................................... 89
4. V iolations of the Human Rights o f Victime
in the T errito ry of Non-Belligerent or
Neutral Powers ............................................... 93
D. Spheres in which the Rights of Victims and the Rights
of the Accused may be said to have c o n flicted a t the
time of the offence............................................................... 103

The P roblem ................................................................... 103

....................... The Ru1b ..................................................................... IO5
Precedents. ................................................... 105
Comparison with the Nrnberg C harter.................... 107
C o n clu sio n s................................................................... 1C8
R e p r i s a l s ....................... IO8

E. Conclusions............................................................................... I 09

CHAPTER I I I - TRIALS OTHER THAN THOSE CONDUCTED BY THE INTERNATIONAL

MILITARY TRIBUNALS
(Rapporteur: Mr. George Brand, LL.B.)

A. INTRODUCTION............................................................................ 112
1. The Approach to the Study of the P rotection of
Human Rights in Time of W a r................................... U2
2. D iffic u ltie s Involved in the Study of Human
Rights in War Crime T ria ls . .................................... H

3. War Crimes not re s u ltin g in V iolations of Human

R ights............................................................................... 122
4. The D ivisions of Chapter I I I ................................... 122
. B. LEGAL BASIS AND JURISDICTION OF WAR CRIME COURTS
OTHER THAN THE INTERNATIONAL MILITARY TRIBUNALS. . . 125

I. Legal Baai3 under In te rn a tio n a l Law .................... 125

II. Legal Basis under M inicipal L aw ........................... 126
III. The J u ris d ic tio n of War Crime Courts. . . . . . 136
1. General Remarks.................................................. I 36
2. The French, Norwegian, Denirh,
Netherlands and Luxembourg Provisions:
The Continental Legal Approach to War
Crime T r i a l s ....................................................... I 36

/ 3. Conaaents on the
s / ir .y w .19
Page x i i

Pae
. 3. Comments on the "C ontinental Approach" . . 139
4. Summary of the Contente of the Appendix to
th ie Chapter ....................................... 11*5
. C. VIOLATIONS OF THE BIGHTS OF m VICTIMS OF WAR CRIMES 146
1. A llied Inhabitante of Occupied T e rrito rie c . . . 146
( i) The Rights to L ife, Health and Personal
In te g rity . ............................................................ 146
( i i ) The E .ght to Freedom of Movement................. 148
( i i i ) The Right to a F a ir T ria l. '............................ 149
(iv ) Family E ig h ts........................................................ 15C
(v) Religious f i i g h t c ............................................... 150
(v i) Property IUght3. . ........................................ 150
( v ii) Civic R ig h to ............................................... 151
2. A llied C iv ilian s in Occupied T e rrito rie s who
. take up Arms ag ain st the Enemy............................... 153
3. A llied C iv ilian s outside Occupied T e rrito ry . . I 5I*
. . . 4. Non-Allied N ationals..................................................... 155
5 , . Armed F orces....................................... 162
. 6. Prisoners of War. . . - , ........................................... l62
. - ( i ) In te rp re ta tio n of the term "Prisoner of
. . . War" . . . ... ....................................................... 162
(-a) The In te rp re ta tio n of the Hague and
Geneva Conventions bo as to cover
. . . crimec committed not in camps, but
on the lin e of march. ............................. 162
(b) The a p p lic atio n of the Hague and
Geneva Conventions to crimes committed
ag ain st Prisoners of War in
. Concentration Camps ................................ 163
(c) The in te rp re ta tio n given to
. . A rtic le 23(c) of the Hague Convention I 63
(d) The question whether members of
R esistance Movements become Prisoners
. . . of War on C a p tu re .................................... 164
(e) The question of the circumstances in
which Prisoners of War could be tre a ted
. . as suspected war c rim in a ls.................... 165
( i i ) A Goneral Provision P ro tectin g Prisoners
of W a r................................................................... I 65
. ( i i i ) The Right to L ife and H e a l t h ........................ I 65
(iv ) The Right to In te g rity of the Person . . . 17I
. . (v) Tho Bight to Freedom of Movement.................. 173
(v i) The Bight to F a ir T r i a l . ................................. 17^
(v ii) R eligious R i g h t s ................................................. 176
. ( v i i i ) Property E ig h ts................................................... 177
(ix ) Civic R i g h t s ........................................................ 171
. . . (x) The Right not to be put to Slavery . . . . 177
. 7. The Sick and Wounded..................................................... I 78
. . . 8. . .Medical P e rs o n n e l................................. ........... 179
_ . 9 .Captured S p ies......................... .................................... 10
10. Nate on the N ationality of the Accused.................... 18O

/D. SPHERES IN WHICH

 e / cn.4 / w.19
Paco i 111

Pago
D. SPHERES IN WHICH THE EIGHTS OF THE ACCUSED AND
THE RIGHTS OF THE VICTItE MAY HE SAID TO HAVE
CONFLICTED AT THE TIME OF THE OFFENCE........................ 182
1. R esponsibility of Commanders fo r Offoncos
commit tod. by th e ir Troopc....................................... 182
( i) L ia b ility fo r Offencoo Ordered by him . . 12
( i i ) L ia b ility fo r Offencoo not shown to havo
. . . . boon ordered by him ........................................ I 83
( i l l ) Relevant Legal Proviciono ........................... I 83
(iv ) - T ria l of Kurt M eyer................................ I 85
(v) The Belcon T t i a l ............................................... I 88
(v i) The T ria l of Karl Rauer and Othoro. . . . I 89
( v ii) T ria l of Kurt S tu d o n t............................ 193
. ( v i l i ) T riol of F r itz H urtjonutoin and fiv e others 197
(ix ) Trial, of V ictor Soegor............................ 197
. (x) The Yanr.ohita T r i a l ......................................... 198
. (x l) T ria l of Yuicki Sakamoto................................. 204
( x ii) T ria l of L t. Gen. Yonhio Tachibana and
o th e rs ............................................................ 204
( x i i i ) The Milch T r i a l ............................................... 205
(xiv) T rial of Takaehi S akai........................... 208
(xv) Conclusion................................................... 209
2. Other Degrees of L ia b ility ................................... 212
( i) Persons who keep watch while a crime is
com m itted.................................................... 212
( i i ) Persons who pass on orders from above . . 213
( i i i ) Persons who p a rtic ip a te In lynching . . . 213
(iv ) I n s t i g a t o r s ............................................... 214
(v) Common Design and the General P rin cip les
of L ia b ility ................................................ 215
(v l) Persons g u ilty of attempted crime. . . . 216
3. Superior Orders, Duress and Coercion ................ 217
( i) Introductory Remarks................................ 217
( i i ) Municipal Enactments............................... 217
( i i i ) A uthorities oth er than Enactments. . . . 220
(iv ) The Masuda T ria l Exam ined.................... 225
(v) Some t r i a l s illu s tr a tin g the degree to
which the defence has been successfully
p le a d e d ........................................................ 229
(v i) Conclusion................................................... 233
4. L egality under Municipal L aw ........................ 237
5. N ecessity............................................................... 239
6. R e p risa ls................................... 242
7* The Defence of Mistake of Law......................... 246
8. The Defence of Mistake of F a c t ..................... 248
9 S e lf D e fen c e ......................................................... 249
E. RIGHTS OF THE ACCUSED AT THE TIME OF TRIAL................ 250
1. Right of Accused to know the Substance of the
C h arg e ....................................................... ................ 250
2. Right of Accused to be Present a t tt*ial and to
givo Evidoncu....................................................... 251
3. Right of Accused to have the Aidof Counsel. . 252
4. Right of tho Accused to have the Proceedings
made I n te llig ib le to him by In te rp re ta tio n . . 253
5. Rules Regarding Appeal and Confirmation. . . . 256
6. The S tress placed on Expeditious Procodure . . 259
7. Rules of Evidence in G e n e ra l........................ 260
8. Tho A dm issibility of A ffid a v its .................... ?64
9. The A dm issibility of P re-T rial Statements by
one Accused ag ain st Another............................ 267
/lO . The A dm icsibilib
B/JN.VW.l
Pago xiv

Paffe
10. Tho A dm issibility of Hearsay Evidence................ 269
11. Accusod not E n title d to the Righto of a
P rispuer of War as Rogardo T ria l ........................ 270
12. C o n clu sio n ............................................................ 272
F. CONCLUSIONS TO CHAPTER I I I ...............................................

G. APPENDIX TO CHAPTER I I I ................................................... 2flfc

1. United Kingdom and B ritis h Commonwealth
E n actm en ts............................................................ 2k
2. United S ta te s Provisions ........................................ 286
3. The J u ris d ic tio n of Chinese War Crimes
T ribu n als............................... 287
4. J u ris d ic tio n of the Greek Courts over War
C rim inals. .................................................................... 288
J. J u ris d ic tio n over Treasonable A c t s .............. 289
6. The J u ris d ic tio n of Belgian M ilitary Tribunals
over War Crimes and C ertain Treasonable Acte . 289
7. J u ris d ic tio n of the People's Courts in
Czechoslovakia over War Criminals and T ra ito rs 291
8. J u ris d ic tio n of Polish Courts over War Crimes
and Treasonable A c tiv itie s .................................... 29^
9. J u ris d ic tio n of Yugoslav Courts over War Crimes
and Treasonable A c tiv itie s .................................... 295
( 10. J u ris d ic tio n of the M ilitary Government Courts
s e t up in Germany................................................. 298
PART I I .

INFORMATION ON HUMAN RIGHTS

ARISING OUT OF THE RELATIONCHIP BETWEEN
THE STATE AND PERSONS UNDER ITS JURISDICTION
INTRODUCTION...........................................................................................\ . . 306
(Rapporteur: Dr. H. Mayr-Harting)

CHAPTER I - JURISDICTION OVER VIOLATIONS OF HUMAN RIGHTS OF GERMAN

CITIZENS AND STATELESS PERSONS COMMITTED WITHIN
THE TERRITORY OF THE GERMAN REICH........................................ 310
(Rapporteur: Dr. H. Mayr-Harting)
A. THE INTERNATIONAL MILITARY TRIBUNAL FOR THE TRIAL
OF GERMAN MAJOR WAR CRIMINALS....................................... 310
1. The In te rn a tio n a l C haracter of the Tribunal. . 310
2. The J u ris d ic tio n of the T r ib u n a l........................ 312
3. The Law Applied by the Tribunal............................ 315
k. V iolations of Human Rights of German C itizens
and S ta te le ss Persons re fe rre d to in Count
One of the Indictment (The Common Plan or
C o n sp iracy ................................................................... 3^7
5. V iolations of Human Rights of Gorman C itizens
and S ta te le ss Persons re fe rre d to in Count
Four of the Indictment (Crinee against
Humanity)....................................................................... 326
/6 . Summary
 E/Cl.u/W.19
Page XV

Page
6. Summary and Conclus iona........................................ 31*0
B. MILITARY COURTS, MILITARY GOVERNMENT' COURTS
AND GERMAN COURTS........................................................... 3^7
1. J u r i s d i c t i o n ........................................................... 352
2. The Law A pplied....................................................... 355
3. Summary........................................................................ 359
CHAPTER I I - TRIAIS QF QUISLINGS ANDTRAITORS...................................... 362
(Rapporteur: Dr. R. Zivkovic)

/HISTORICAL
 E/CN.V w.19
Page 1

HISTORICAL SURVEY
OF THE PROBLEM OF VIOLATIONS OF HUMAN RIGHTS

(War Crimes and Crimes against Humanity)

The sp e c ific ru le s of A rtic le 6 and A rtic le 5 of the Charters of the

In te rn a tio n a l M ilitary Tribunals a t Nrnberg and Tokyo resp ectiv ely , and
A rtiole I I of the Control Council (fo r Germany) Law No. 10*, on the b asis
of which these Tribunals and other Courts had to determine the g u ilt or
innocence of the war crim inals, i . e . th e ir re s p o n sib ility fo r v io latio n s
of the fundamental rig h ts of nations as well as fo r v io la tio n s of
fundamental human rig h ts of peoples and of individual persons, comprise
three types o f crimes: (a) crimes against peace, (b) war crim es, and
(c) crimes ag ain st humanity.
I t is the ru le s re la tin g to the l a t t e r two categories o f crimes which
are of p a rtic u la r in te re s t to , and have a bearing on, the question of the
protectio n of human rig h ts . By th e ir very nature these ru le s e ith e r
co n stitu te evidence o f an already e x istin g system or contain th e nucleus
of a system of provisions which, i f properly developed, would lead to the
b e tte r p ro te c tio n of fundamental human rig h ts and minimum human standards
in time of war and in peace, including the p ro te c tio n of populations
against the abuse of sovereignty by th e ir own a u th o ritie s . Such p ro te c tio n
would be afforded irre sp e c tiv e of whether or not the abuse of sovereignty
and inhumane acts are committed in v io la tio n of the domestic law of the
country where they were p erp etrated . I t is e sp e c ially th is d e fin itio n of
the general ch aracter of the concept of crimes ag ain st humanity, irresp ectiv e
of time and place and n ational sovereignty, which makes these ru le s so
relevant fo r the promotion and encouragement o f resp ect fo r human rig h ts
and fo r fundamental freedoms without d is tin c tio n as to race, sex, language
or re lig io n

* See:
1. The Agreement of 8th August. 19^-5, fo r the Prosecution and
Punishment of the Major War Criminals of the European Axis,
together with the Charter.
2. The Ch a rte r of th e In te rn a tio n a l M ilitary Tribunal fo r the
Far E a st, of 946.
3- The Control Council Law No. 10 (Punishment of Persons
G uilty of War Crimes, Crimes against Peace and Crimes
ag ain st Humanity), l$k6.

/As w ill
 k/CN.4/W,19
Page 2

As w ill be shown l a t e r in g re a te r d e ta il, the terms "war crimes" and

"crimes ag ain st humanity" as defined in these documents, and the concepts
which they represent are overlapping, Juxtaposed and in te r-r e la te d in the
sense th a t while a l l a c ts enumerated under the heading "war crimes" are
a lso and sim ultaneously crimes ag ain st humanity, the converse is not
equally tru e ; th ere are many acts coming under the notion of crimes against
humanity which are a lso and sim ultaneously war crimes, p a rtic u la rly when
such a c ts are committed on enemy occupied te r r it o r y or ag ain st a llie d
n a tio n a ls; but th ere are a lso a c ts q u a lifie d as crimes ag ain st humanity
which cannot be brought w ithin the category o f v io la tio n s of the laws and
customs of war, i e . those crimes ag ain st humanity which were committed
e ith e r a t d time when th ere was no s ta te o f war, or ag ain st c itiz e n s of
n eu tral s ta te s , or against enemy n a tio n a ls, or on enemy te r r ito r y .
I t may, however, be said th a t every, or n early every a c t, coming
under the terms "war crimes" and "crimes ag ain st humanity" v io la te s the
corresponding human rig h t. I t may be added th a t crimes a g ain st peace,
namely, planning, preparatio n , in itia tio n and waging of a war of
aggression, which were declared by the Nrnberg Tribunal as th e supreme
in te rn a tio n a l crime, c o n stitu te a lso , in a general non-technical sense,
a crime against humanity, a s, in c e rta in circum stances, they involve
v io la tio n s o f human r ig h ts .
The term s, "crimes against peace", "war crim es", and "crimes against
humanity", used in the document mentioned above as tech n ica l terms, do
not rep resen t conceptions and ideas e n tire ly novel and without precedent.
A ll of them have some h is to ry behind them and, in so fa r as th e question of
th e p ro te c tio n o f human rig h ts is concerned, they are an e g re s s io n of
the common "desire to serve the in te r e s t of humanity and the ever
progressive needs of c iv iliz a tio n " . This quotation taken from paragraph 2
of the Preamble of the Fourth Hague Convention of 1907 concerning the
Lows and Customs of War on Land, brings us to th e e s s e n tia l p a rt of this
Survey, the purpose of which is to o u tlin e the h is to r ic a l events preceding
the C harters, as w ell as th e more important stages of th e development of
the re le v an t notions s t r i c t l y connected w ith the p ro te c tio n of human
r ig h t s .

/I. .THE HAGUE

 E/CN.V w.19
Pago 3

I* THE HAGUE CONVENTIONS OP 1907

In the centuriejs-long chain o f developments and progress vhich tended

to modify gradually the unsparing c ru e lty of war p ra c tic e s and which aimed,
through custom and tr e a tie s , a t transform ing the usages in war in to le g a l
rules of warfare in order to make wars more humane, the Second Peace
Conference held a t the Hague in 1907 marks the turning p o in t. This
Conference, which had been convened fo r the purpose of "giving a fresh
development to the humanitarian p rin c ip le s "*, drew up a number of
Conventions which represent the most important step in "evolving a lo f ty
conception of the common w elfare of humanity".**
One of the p rin c ip le s vhich underline a l l these enactments is the
p rin cip le of humanity. I ts aim is to e sta b lis h , as firm ly as p o ssib le,
that n-i 1 such kinds and degrees of violence as are not necessary fo r
overpowering of the opponent should not be perm itted to a b e llig e re n t,
and th a t, in c o n tra d istin c tio n to the savage c ru e lty of former tim es,
fairness of conduct and resp ect fo r human rig h ts should be observed in the
re a liz a tio n of the purpose of war.
Thus the fo urth of the Hague Conventions of 1907, the one concerning
the Laws and Customs of War on Land, re c a lls in the Preamble th a t the
Contracting P a rtie s "inspired by the d esire to diminish the e v ils of war,
so fa r as m ilita ry requirements perm it", thought i t important "to rev ise

* See the Preamble to the Final Act of the Second Peace Conference,
The Hague, 1907.
** Other general tr e a tie s concluded between the m ajority of S ta te s,
which c o n stitu te the most important developments of the laws of
war p rio r to 1907, are the following:
(a) The D eclaration of Ta r ls of A pril l6 th , 1856, respecting
w arfare on sea, which abolished p riv a te e rin g , recognized
the p rin c ip le s th a t the n e u tra l fla g p ro te c ts non
contraband enemy goods, and th a t non-contraband n e u tra l
goods under an enemy -flag cannot be seized.
(b) The Geneva Convention of August 22nd, 1864, fo r the
am elioration of the conditions of wounded so ld ie rs in
armies in the f ie ld , followed by a Convention signed in
Geneva on July 6.th I 906.
(c) The D eclaration of S t. Petersburg o f December 11th. I 668.
resp ectin g the p ro h ib itio n of the use in war of p ro je c tile s
under 400 grammes (1^ ounces) which are e ith e r explosive
or charged w ith inflammable substances.
(d) The Convention enacting reg u latio n s respecting the Laws of
War on Land agreed upon a t the F ir s t Peace Conference of
139, which represented the f i r s t in te rn a tio n a l endeavour
to codify the laws of war. This Convention was revised in
1907 and i t s place is now taken by Convention IV of the
Second Peace Conference.
/th e general
e /CN.V w.19
Page 4

the general laws and customs of war, w ith th e view on th e one hand of
defining them w ith g re a te r p re c isio n , and, on the other hand, of confining
them w ithin lim its intended to m itig ate th e ir s v e rity as fa r as possible".
According to the views of the Signatory S ta te s, these provisions were
intended to serve as a general ru le of conduct fo r b e llig e re n ts not only
in th e ir mutual re la tio n s but a lso in th e ir re la tio n s with the- c iv ilia n
population.. Accordingly, in the eighth paragraph of th e Preamble the
Contracting P a rtie s expressly declared th a t "the in h ab itan ts and the
b e llig e re n ts remain under the p ro te c tio n and governance of the principles
o f the la v o f natio n s, derived from the usages esta b lish e d among
c iv iliz e d peoples, from th e laws of humanity. and from the d ic ta te s of
the public conscience".
However, a l l such references to "humanity", " in te re s ts of humanity"
and "laws of humanity", as appear in th is Convention and in th e other
documents and enactments o f th a t p erio d , are used in a non-technlcal
sense and c e rta in ly not w ith the in te n tio n of in d icatin g a s e t o f norms
d iffe re n t from the "laws and customs of war", the v io la tio n s o f which
c o n stitu te war crimes w ith in th e meaning of the documents of 1945 and
1946 enumerated a t.th e o u ts e t. The Fourth Hague Convention is an
instrument dealing per d e f in itionem with war crimes in the tech n ical and
narrower sense, and the " in te re s ts of humanity" are conceived in i t only
as the object which the laws and customs of war are intended to serve,
and the "laws of humanity" only as one of the sources of the law of
n a tio n s .*
Among the other Hague Conventions of 1907 which are of relevance to
the p ro te c tio n of human rig h ts and the provisions of which are of the
same nature as those of the Fourth Convention, the following may be
mentioned:
Third Convention r e la tiv e to the Opening of H o s tilitie s .
F ifth Convention resp ectin g the Sights and Duties of N eutral
Powers and Persons in case of War on Land.
Sixth Convention re la tiv e to the Status of Enemy Merchant-Ships
on the Outbreak of H o s t ilitie s .
Seventh Convention re la tiv e to th e Conversion of Merchant-Ships
in to War-Ships.
Eighth Convention r e la tiv e to the Laying of Automatic Submarine
Contact Mines.
Ninth Convention resp ectin g Bombardment by Naval Forces in
Time o f War.
* ' See E. Schwelb's a r t i c l e on "Crimes ag ain st Humanity" , w ritte n for
the B ritis h Year Book of In te rn a tio n a l Law, 1947;
/Tenth
 E/CH.U/w.19
Page 5

Tenth Convention fo r the Adaptation to Naval War of the

P rin cip les of the Geneva Convention.
Eleventh Convention r e la tiv e to c e rta in R e stric tio n s w ith
regard to the Exercise of the Right of Caputre in Naval
V,Ta r s .
T hirteenth Convention concerning the Rights and Duties of
N eutral Powers in Naval Wars.
Fourteenth Convention P rohib itin g the Discharge of
P ro je c tile s and Explosives from Balloons.*
In connection w ith the Eighth of the above Conventions i t may be
worth while to re c a ll the d eclaratio n tff Baron Marschall von B ieberstein,
F irst Delegate P len ip o ten tiary of Germany. Speaking a t the Hague
Conference of I 907 with regard to submarine mines, he used the following
words :
"M ilitary operations are not governed so lely hy s tip u la tio n s
of in te rn a tio n a l law. There are other fa c to rs . Conscience, good
sense, and the sense of duty imposed by the p rin c ip le s of humanity
w ill be the su re st guides fo r the conduct of s a ilo rs , and w ill
c o n stitu te the most e ffe c tiv e Guarantee ag ain st abuses. The
o ffic e rs of the German Navy, I loudly p r o c la im it, w ill always
f u l f i l l in the s t r i c t e s t fashion the d u ties which emanate from
the unw ritten law of humanity and c iv iliz a t io n ."**
As to the binding force of a l l th ese conventions and enactments, i t
is s u ffic ie n t to say quite generally th a t, according to th e p rin c ip le s of
In tern atio n al Law, 11 the ru le s of w arfare th a t by custom or tre a ty
evolved in to laws of war are binding upon b e llig e re n ts under a l l
circumstances and conditions, and in p rin c ip le cannot be overruled even
by n e ce ssity . They do not lo se th e ir binding force even i f th e ir breach
would e ffe c t an escape from extreme danger or th e r e a liz a tio n of the
purpose of war. These guiding p rin c ip le s fin d th e ir expression in
A rticle 22 o f the Hague Regulations which s tip u la te s d is tin c tly th a t the
right of b e llig e re n ts to adopt means of in ju rin g th e enemy is not
unlimited.
The effectiv en ess of some of the Hague Conventions concluded before
the F ir s t World War was considerably impaired by th e incorporation of a
so-called "general p a rtic ip a tio n clause" providing th a t the Convention
shall be binding only i f a l l b e llig e re n ts are p a rtie s to i t . On the other
hand sene of the l a t e r Conventions expressly r e je c t th e general

* See the Final Act of the Second Peace Conference. The Harue, 1907.
and Ccnventions and D eclarations Annexed th e re to .
** Quoted in the Reports of the Commission of R esp o n sib ilitie s o f 1919.
re fe rre d to in f u l l in. the subsequent sectio n s.
/p a rtic ip a tio n
E/CH.tyto.l9
Pago 6

p a rtic ip a tio n clause or include i t in a d iffe re n t and modified form.*

Thus, as records the l a t t e r p ra c tic e , th e S ignatories o f the
Protocol of 19?5 concerning the use of poisonous gases in war included
a re serv a tio n to the e ffe c t th a t the instrum ent s h a ll cease to he binding
towards eny b e llig e re n t Power whose armed fo rce s, "or the armed forces
of whose A llie s " , f a i l to respect the p ro h ib itio n s la id down in the
Protocol. As Oppenheim says in th is connection, "the e ffe c t might be
th a t in a war in which a considerable number of b e llig e re n ts are involved,
the actio n of one S ta te , however sm all, in a d is ta n t region of war,
might become the s ta rtin g point fo r a general abandonment of the restrain ts
of the Convention. As between opposing b e llig e re n ts a ctu a lly in contact
w ith one another some form of 'p a r tic ip a tio n ' clause is c le a rly necessary.
But tho requirements of re c ip ro c ity and o f effectiv en ess of tr e a tie s are
not irre c o n c ila b le , and progress can undoubtedly be achieved by a less
rig id and exacting form ulation of the clause than has been the case
h ith e rto ."* *
Among other fa c to rs which are, or had u n til re c e n tly been, lim iting
the effectiv en ess of the ru le s of war may be mentioned: (a) the
in s titu tio n of re p ris a ls which, though designed to ensure the observance
of ru le s of war, have sy stem atically been used as a convenient cloak for.
disregarding th e laws o f war; and (b) th e question of the p le a of superior
o rd e rs. These very important questions m eriting serious a tte n tio n by a ll
Governments, w ill form the subject o f separate Sections of th is Report.
Before leaving tho subject o f th e development of th e laws of war
through in te rn a tid n a l conventions, the following may be mentioned from
among the more important instruments concluded in the period between the
two World Wars;
(a) The Protocol of 1925 concerning the use in war of asphyxiating,
poisonous, and other gases, signed a t a sp ecial Conference convened
by the Council of the League of N ations.
(b) Hie Geneva Conventions of 1929 concerning the treatm ent of sick
and wounded, and of p riso n ers of war.
(c) The London Protocol of 1936 r e la tin g to the use o f submarines
ag ain st merchant v e s s e ls .

* See the Geneva Conventions o f 1929 and the Frotocol of 1925.

** L. Oppenheim, In te rn a tio n a l Law, T bl. I I , Sixth E d itio n , page 106.

/II. DEVELOPMENTS
 e / cn .U/w .19
Page 7

II. DEVELOPMENTS DURING THE FIRST WORLD WAR

1. The Massacres o f th e Armenians in Turkey

In connection w ith th e m assacres of th e Armenian p o p u la tio n which
occurred a t th e beginning of th e F i r s t World War in Turkey, th e
Governments o f France, Great B r ita in and R ussia made a d e c la ra tio n , on
26 Mcy 1915, denouncing them as "crimes a g a in s t humanity and c i v i l i z a t i o n "
fo r which a l l th e members o f th e T urkish Government would 1 3 h e ld
re sp o n sib le , to g e th e r w ith i t 3 ag en ts im p lic a te d in th e m assacres. The
re le v a n t p a r t of th is d e c la ra tio n read s as fo llo w s:
"En presence de cee nouveaux crim es de la Turquie co n tre
1 humanit e t la c i v i l i s a t i o n , le s Gouvernements a l l i s fo n t
BC.7oir publiquement la Sublime P o rte q u i l s tie n d ro n t
personnellem ent resp o n sab les d e s d its crimes tous le s membres
du Gouvernement ottoman a in s i que ceux de ces ag en ts qui se
tro u v e ra ie n t im pliqus dans de p a r e ils m a ssa cres. *
As w ill be shown l a t e r in more d e t a i l , th e warning given to th e
Turkish Government on th is occasion by th e Governments of th e T rip le
Entente d e a lt p re c is e ly w ith one of th e ty p es o f a c ts which th e modern
term "crimes a g a in s t humanity" i s in ten d ed to cover, namely, inhumane
acts committed by a government a g a in s t i t s own s u b je c ts .
2. The 1919 Commission o f R e s p o n s ib ilitie s
In January 1919/ th e P relim in ary Peace Conference o f P a ris decided
to c re a te a Commission composed o f f i f t e e n members f o r th e purpose o f '
"enquiring in to th e r e s p o n s ib il itie s r e l a t i n g to th e w ar". The Commission
was charged, i n t e r a l i a , w ith en q u irin g in to and re p o rtin g upon "th e f a c ts
as to b reaches o f th e laws and customs o f war committed by th e fo rc e s o f
the German Empire and t h e i r A llie s , on la n d , on se a , and i n th e a i r " ,
during th e 191^-1919 w ar.**
I n i t s R eport o f 29th March, 1919,*** th e Commission s ta te d th a t th e
large number o f documents i t had co n sid ered su p p lie d abundant evidence
of outrages of every d e s c rip tio n committed on la n d , a t se a , and in th e
a ir , a g a in s t th e law s and customs o f war and o f th e law3 o f hum anity, and
th at in s p ite o f e x p l i c i t re g u la tio n s , e s ta b lis h e d customs and th e c le a r

# The f u l l te x t o f th e d e c la ra tio n i s quoted in th e Armenian Memorandum

p re se n te d by th e Greek d e le g a tio n to th e Commission o f R e s p o n s ib ilitie s ,
Conference o f P a r is , 1919.
** Vio la tio n s o f th e Laws and Customs o f War, R eports o f M ajo rity and
Dis s e n tin g R eports o f th e American and Japanese Members o f the
Ccimi'ssicn o f~ R e s p o n s ib ilitie s . Conference o f P a r is . 1919, Cnrneeie
Endowment f o r I n te r n a tio n a l Peace, D iv isio n o f In te rn a tio n a l Law,
Pamphlet No. 32.
*** Op. c i t . , Chapter I I .
/d ic ta te s
e / cnJ v/ w.19
Pace 8

d lc ta te c cf humanity, Germany end her a llie s have p ile d outrace upon outrage.
In p a rtic u la r, the Commission e stab lish ed the fa c t th a t m ultiple
v io la tio n s of th e rig h ts of combatants, of th e rig h ts of c iv ilia n s , and of
th e r ic h ts of both had been committed which wore th e outcome of the "most
c ru e l p ra c tice s which prim itive barbarism , aided by a l l the resources of
modern science, could device fo r th e execution of a system of terro rism
c a re fu lly planned and c a rrie d out to the end. Not oven p riso n ers, or wounded,
or women, or child ren have been respected by b e llig e re n ts who d elib erately
sought to s trik e te r r o r in to every h e art fo r the purpose of rep ressin g a ll
re s is ta n c e . Murders and massacres, to r tu r e s , sh ield s formed of liv in g human
beings, c o lle c tiv e p e n a ltie s, tho a rre s t and execution of hostages, the
re q u is itio n in g of services fo r m ilita ry purposes, th e a rb itra ry destruction
o f public and p riv ate property, th e a e r ia l bombardment of open towns without
th e re being any re g u la r sieg e, th e d estru ctio n of merchant ships without
previous v i s i t and without any precautions fo r th e safety cf passengers and
crew, tho massacre of p riso n ers, attack s on h o sp ita l ships, th e poisoning
of springs and of w ells, outrages and profanations without regard fo r
re lig io n or tho honour of individuals" c o n stitu te the most s trik in g examples
of such v io la tio n s .
As a b a sis fo r fu tu re c o lle c tio n arid c la s s if ic a tio n of inform ation
concerning the charges as to breaches of th e laws and customs of war, the
Commission arriv ed a t th e follow ing formal l i s t of crimes or groups of crimes:
1. Murders and massacres; system atic te rro rism .
2. P utting hostages to death.
,
.
Torture of c iv ilia n s .
L elib erato sta rv a tio n of c iv ilia n s .
5. Rape.
6. Abduction of g ir l s and women fo r th e purpose of enforced
p ro s titu tio n .
7. D eportation of c iv ilia n s .
8. Internment of c iv ilia n s under inhuman conditions.
9. Forced labour of c iv ilia n s in connection with the m ilita ry
operations of th e enemy.
10. Usurpation of sovereignty during m ilita ry occupation.
11, Compulsory enlistm ent of so ld ie rs among the in h ab itan ts of
occupied t e r r i t o r y .
12. Attempts to denationalize the in h a b ita n ts of occupied te rrito ry .
13. P illa g e .
14. C onfiscation of jro p e rty .
15. Exaction of ille g itim a te or of ex o rb itan t co ntributions and
re q u is itio n s .
16. Debasement of currency, and issu e c f spurious cir.-i-^ncy.
17. Im position of c o lle c tiv e p e n a ltie s .
18. Wanton devastation and fleitruv-ticn >r property ,
19. D eliberate tomburdment of undefended p laces.
20. Wanton d e stru ctio n of re lig io u s , c h a rita b le , educational and
h is to r ic buildings and monuments.
/ 21. D estruction
 e / cn> / w.19
Page 9

21, D estruction of merchant chips and passenger vessels without

warning and without provision fo r the safety of passengers and
crew,
22, D estruction of fish in g boats and of r e l i e f ships.
23, D eliberate bombardment of h o s p ita ls,
2l|. Attack on and destru ctio n of h o sp ita l sh ip s.
23. Breach of other ru le s re la tin g to the Red Cross,
26, Use of d o leterious and asphyxiating gases,
27, Use of e2:plosive or expanding b u lle ts , and other inhuman
appliances*
28, D irections to give no q u a rte r,
29, Ill-tre a tm e n t of wounded and prisoners of war,
30, Employment of prisoners of war cn unauthorized works.
31, Misuse of fla g s of tru c e .
32, Poisoning of w ells.
I t is s u ffic ie n t to say here in th is connection th a t almost a l l types
of crimes which are included in th is l i s t or could be brought under the
ebove heads e ith e r c o n stitu te per se or involve in given circumstances
violations of inherent human r ig h ts .
The s u b sta n tia l number of examples (charges) of offences committed
by the a u th o ritie s and forces of the C entral Empires and th e ir A llie s th a t
bad been c o lle cte d by the Commission* can be divided in to two categ o ries.
To the f i r s t category, comprising the overwhelming m ajority of charges,
belong offences which were committed in v io la tio n of the lav s and customs
of war and can be c la s s ifie d as war crimes sensu s t r i c t o . The second
category is composed of offences committed on the te r r it o r y erf1 Germany and
her A llies against th e ir own n a tio n a ls. In p a rtic u la r, the Commission
includod amor-G i t s findings inform ation on various crimes v io la tin g the
rights of c iv ilia n s , such as those committed by Turkish and German a u th o ritie s
egainst Turkish subjects ( i . e , the Armenians and the Greek speaking population
of Turkey), or those committed by A ustrian troops against th e population
of Gorizia, which a t th e m aterial time (1915) was A ustrian t e r r it o r y . I t
would appear th a t the l a t t e r set of offenes were q u a lifie d by th e Commission
as crimes coming w ithin the notion o f v io la tio n s of the laws of humanity. As
has already been shown in paragraph (1) above, the massacres of the Armenian
population in Turkey had been sim ila rly denounced as "crimes against humanity
and c iv iliz a tio n " .
The m ajority of the Commission came to the conclusion th a t th e war
of 191^-1919 "was c a rrie d on by th e C entral Empires to g eth er with th e ir
allies, Turkey and B ulgaria, by barbarous or ille g itim a te methods in
violation of th e esta b lish e d laws and customs of war and th e elementary

* Reproduced in "l a Documentation In te rn a tio n a le . l a Paix de V e rsa ille s.

Volme 3. R esponsabilits des auteurs de l a Guerre e t Sanctions". P a ris ,
I93O, Annex I to the Main Report.
/la v s of humanity".
e /CN.U/W.19
Page 10

lav s of humanity", and th a t " a ll persons belonging to enemy countries,

hcvevnr high th e ir p o sitio n may have been, without d is tin c tio n of rank,
including chiefs of S ta te s , who have been g u ilty of offences against
the lavs and customs of war or th e laws of humanity, are lia b le to
crim inal prosecution".* Accordingly, the Commission recommended th a t in
additio n to the municipal co u rts, m ilita ry or c iv il, which every
b e llig e re n t has power, under In te rn a tio n a l Law, to set up fo r the t r i a l
of such cases, an In te rn a tio n a l Court ("High Tribunal") should be
c o n stitu ted fo r the t r i a l of outrages f a llin g under four sp ecial
categories of charges of v io la tio n s of the laws and customs of war and of
th e laws of humanity.**
The above conclusions and recommendations were the lo g ic a l outcome
of the opinion sta te d by the Commission to th e e ffe c t th a t "having regard
to th e m u ltip lic ity of crimes committed by those Powers which a short time

* Op. c i t . , Chapter I I I .
** The four categories of charges are the following:
(a) Against persons belonging to enemy co u n tries who have
committed outrages against a number of c iv ilia n s and so ld iers of
several A llied n atio n s, such as outrages committed in prison camps
where prisoners of war of sev eral nations were congregated or the
crime of forced labour in mines where prisoners of more than one
n a tio n a lity were forced to work;
(b) Against persons of a u th o rity , belonging to enemy countries,
whoso orders were executed not only I n one area c r on one b a ttle
fro n t, but whose orders affected the conduct of operations against
sevoral of th e A llie d armies;
(c) Against a l l a u th o ritie s , c iv il or m ilita ry , belonging to
enemy co u n tries, however high th o ir p o sitio n may have been, without
d is tin c tio n c f raids, including th e heads of S ta te s , who ordered, or,
w ith knowlodge th ereo f and w ith power to in terv en e, abstained from
preventing or taking measures to prevent, p u ttin g an end to or
re p re ssin g , v io la tio n s of the laws or customs cf war ( i t being
understood th a t no such abstention should c o n stitu te a defence for
the a c tu a l p e rp e tra to rs);
(d) Against such other persons belonging to enemy countries as,
having regard to the character of th e offence or th e law of any
b e llig e re n t country, i t may bo considered advisable not to proceed
before a court other than the High Tribunal h e re a fte r re fe rre d to,
(See Op. c i t . Chapter IV).
(The American R epresentatives in the Commission submitted a
number of reserv atio n s to the above recommendations).

/b efo re had
 E/CN.Vw.19
Page 11

before hed cn two occasions a t the Hague protested th e ir reverence fc r

rig h t, and th e ir resp ect fo r the -principles of humanity, the public
conscience in s is ts upon a sanction which w ill put c le a rly in the lig h t
th at i t is not perm itted cynically to profess a d isd ain fo r th e most
sacred laws and the most formal undertakings.
From the foregoing i t appears th a t th e two categories of offences
with which the Commission of F ifte e n concerned i t s e l f , nemel 7, v io la tio n s
of the lawc and customs of war, on the one hand, and offences against
the laws of humanity, on the o th e r, correspond generally speaking to
"war ciimos" and "crimes against humanity", as they are d istin g u ish ed in
the two Charters of 19^5 and 1$)46 and in the Control Council Lav No. 10.
Thus, in I 9I 9 we fin d fo r the f i r s t time the sp e c ific Ju xtaposition of
these two typos of offences.
I t i s , however, not known whether th e I 9I 9 Commission, in using
the term "crimes against the laws of humanity", had in mind offences
which were not covered by th e other expression "v io la tio n of th e laws
and customs of war" nor whether th e Commission considered th a t crimes
against any c iv ilia n population f a l l w ith in the former category. I t is
common knowledge th a t in the F ir s t World War the C entral Powers re so rte d
to the persecution cf th e ir own n atio n als on a considerable sc a le , though
not on a scale comparable w ith what happened in Nazi dominated Europe
between 1933 and 1$^5. As examples may be mentioned the persecution of
p o litic a l opposition groups and of th e Slavonic and Romanic races in
Austria and Hungary, and the crimes committed against r a c ia l m in o rities
in Bulger la and Turkey.
In th e Kemcrondum of R eservations presented to the C am ission,* the
American members objected to the invocation of, and references to , the
"laws and p rin c ip le s of humanity", included in th e re p o rt, in te r a l i a , on
the ground th a t in c o n tra d istin c tio n to the laws and customs of wer, the
laws and p rin c ip le s of humanity, are not "a standard c ertain " to be found
in boohs c f a u th o rity and in th e p ra c tice of n atio n s, but they "vary with
the in d iv id u al, which, i f fo r no other reason, should exclude them from
consideration in a court of J u stic e , e sp e c ially one charged w ith the
adm inistration of crim inal law".
In p a rtic u la r, the American R epresentatives pointed out th a t "war was
and is by i t s very nature inhuman, but acts co n sisten t v ith the laws and

* "Momo?,-andum of R eservations presented by the R epresentatives of the

United S ta te s to the Report of the Commission of R e sp o n sib ilitie s,
April Vfch, 1919", contained in Annex I I to the R e iw t of the M ajority of
the Commission of Robpont "m .
/customs of
E/CII.1+/W.19
Pas 12

customs of v a r, although th e s o a c te ore inhuman, are n e v e rth e le s s not

th e o b je c t of punishment by c c o u rt of J u s tic e . A j u d i c i a l tr ib u n a l only
d e a ls w ith e x is tin g law end only a d m in isters e x is tin g la v , le a v in g to
another fe ru n in f r a c tio n s of th e moral law and a c tio n s c o n tra ry to the
laws and p rin c ip le s of hum anity, A f u r th e r o b je c tio n l i e s in th e f a c t
t h a t th e laws and p rin c ip le s of humanity are no t c e r ta in , v ary in g w ith
tim e , p la c e , and circum stance, and acc o rd in g ly , i t may b e, to th e conscience
of tho in d iv id u a l ju d g e. There i s no fix e d and u n iv e rs a l stan d ard of
hum anity".
I n connection w ith th e work o f th e Commission of F if te e n i t may also
be of some i n t e r e s t to re c o rd th e American o b serv atio n s on th e p rin c ip le s
which should be th e stan d a rd of j u s tic e in m easuring charges of inhuman
o r a tro c io u s conduct d u ring th e p ro se c u tio n o f a w ar.*
These p ro p o sitio n s were th e fo llo w in g :
1. S lcy in g and maiming man in accordance w ith g e n e ra lly accepted
. r u le s of war are frem t h e i r n a tu re c ru e l and c o n tra ry t o th e modern
conception of hum anity.
2. The methods c f d e s tr u c tio n o f l i f e and p ro p e rty in conform ity
w ith th e accepted ru lo s of war are adm itted by c iv iliz e d n a tio n s to
be j u s t i f i a b l e and no charge of c r u e lty , inhum anity, o r im propriety
l i e s a g a in s t a p a rty employing such methods,
3. The p rin c ip le u n d erly in g th e accep ted r u le s o f war i s th e
n e c e s s ity o f e x o rc isin g p h y sic a l fo rc e t o p ro te c t n a tio n a l s a fe ty
o r t o m a in ta in n a tio n a l r i g h t s .
4. R eprehensible c r u e lty i s a m a tte r o f degree which cannot be
j u s t l y determ ined by a fix e d lin o o f d is t i n c t i o n , b u t one which
f lu c tu a te s in. accordance w ith th e f a c t s in each c a se , b u t th e
manf e s t d e p a rtu re from accepted n o ies and customs o f war imposes
upon th e one so d e p e rtin g th e burden o f ju s tif y in g b is conduct, as
he i s prim a f a c ie g u ilty o f a c rim in a l a c t .
5. Tho t e s t o f g u i l t i n th e p e rp e tra tio n o f an a c t, which would
'b e Inhuman o r otherw ise re p re h e n s ib le under normal c o n d itio n s , is
th e n e c e s s ity o f t h a t a c t to th e p ro te c tio n o f n a tio n a l s a f e ty or
n a tio n a l r i g h t s measured c h ie f ly by a c tu e l m ilita r y advantage.
6. The a s s e r tio n by th e p e rp e tra to r o f an a c t th a t i t i s necessary
f o r m ilit a r y reaso n s does no t ex o n erate him from g u i l t i f th e fa c ts
and circum stances p re se n t reaso n ab ly stro n g grounds f o r e sta b lish in g
th e n e c d le ssn e ss of th e a c t or f o r b e lie v in g th a t th e a s s e rtio n is not
made i n good f a i t h .
7. W hile an a c t may be e s s e n tia l ly re p re h e n s ib le and th e

* "Memorandum on th e P rin c ip le s which should Eeterm ine Inhuman and

Improper Acts o f War" , contained in nhex I to th e B eportTof
M ajority o f th e Commission o f R e s p o n s ib ilitie s o f 1919 /perpetrator
 E/CN.V w. 19
Page 13

p e rp e tra to r e n tire ly unwarranted in assuming i t to be necessary

from a m ilita ry point of view, he muet not be condemned as w ilfu lly
v io la tin g the l aws and customs of war or the -principles of humanity
unless i t can be shown th a t the act was wanton and without reasonable
excuse,
6, A wanton act which causes needless su fferin g (and th is includes
such causes of su fferin g as d estru ctio n of property, deprivation of
necessaries of l i f e , enforced labour, e t c . ) , is cruel and crim inel.
The f u l l measure of g u ilt attaches to a party who without adequate
reasons p erp etrates a needless act of c ru e lty . Such an act is a
crime against c iv iliz a tio n , which is w ithout p a llia tio n .
5. I t would appear, th e re fo re , in determining the crim in ality of
an a c t, th a t th ere should be considered the wantonness or malice
cf the p e rp e tra to r, the needlessness of th e act from a m ilita ry point
of view, the p erp etratio n of a ju s tif ia b le a ct in a needlessly harsh
cr cruel manner, and the improper motive which in sp ired i t .
3. Tno Peace T reaties of 1919-1923
In the subsequent Peace T reaties w ith Germany, A u stria, Hungary and
Bulgaria*, tho view cf the American members eventually prev ailed , and the
references to tho "laws c f humanity" do not appear in these t r e a t i e s . A ll
the relev an t provisions in these tr e a t i e s , w ith th e exception of A rtic le 227
of the Peace Treaty of V e rsa ille s , deal only w ith a c ts in v io la tio n of the
laws and customs cf war. Thus, fo r in stan ce, in A rtic le 228 of th e Treaty
of V e rsa ille s th e Gorman Government recognized th e rig h t of th e A llied and
Associated Powers to b rin g to ju s tic e persons accused of having committed
acts in v io la tio n of tho levs and customs of war, and i t also subscribed to
the o b lig atio n of handing over to th ese Powers a l l persons accused of
having committed such a c ts .
As to the question of ju ris d ic tio n th e tre a ty , s tip u la te d th a t persons
guilty c f crim inal a c ts against th e n a tio n a ls of one of th e A llied and
Associated Powers w ill be brought before the m ilita ry trib u n a ls of th a t
Pcwer, while persons g u ilty of such a cts against th e n atio n als of more
than one of these Powers w ill be brought before m ilita ry trib u n a ls composed
of members of th e m ilita ry trib u n a ls of th e Powers concerned (A rticle 229).
A rtic le 227 of th e Treaty of V e rsa ille s provided th a t th e A llied
and Associated Powers publicly a rra ig n Wilhelm I I of Hohcnzollern, formerly
the German Emperor, "for a supreme offence against in te rn a tio n a l m orality

* Peace T rea tie s of V e rsa ille s (A rticles 227-230), Saint-Germain-en-Laye

(Articles I 73-A76) , Trianon (A rticle s 157-159)# ^ d N euilly-sur-Seine
(A rticles 118-120).
/cad the sa n c tity
E/CN.Vw.19
Page lig

and the s a n c tity of t r e a t i e s " Ihe sp ecial trib u n a l envisaged fo r the

t r i a l of Wilhelm I I was tc bo guided "by th e h ighest motives of
in te rn a tio n a l policy, w ith a view to v in d icatin g th e solemn obligations
of in te rn a tio n a l undertakings and. th e v a lid ity of in te rn a tio n a l morality".
I t is to be pointed out th a t th is arraignment of th e K aiser was not
based on a charge cf a v io la tio n of e x istin g law; the ex-Kaiser was
charged, according to what th9 authors of th e tr e a ty considered to be
the thon e x istin g s ta te of in te rn a tio n a l law, w ith offences against moral,
not le ~ a l p rev isio n s.
The provision of A rtic le 227 vhieh was th e precursor of A rtic le 6 (a)
c f th e Nrnberg Charter and cf A rtic le 5 (a) of the Tokyo Charter
resp ectin g crimes against peace, w ith th is important d is tin c tio n , th a t
th e crimes against peace under these two Charters are not merely
contraventions of a moral code, but v io la tio n s of le g a l provisions, does
n o t, cf course, concern th e present problem of "war crimes" and "crimes
against humanity". However, in connection w ith A rtic le 227 i t may be
re c a lle d th a t during th e P aris Peace Conference th e A llied and Associated
Powers had form rlly s ta te d th a t in th e ir view th e war which began on
1 August 191^, was "the r r e ato st .-rire again s t humenity and the freedom
of peoples th a t any natio n , c a llin g i t s e l f c iv ilis e d , has ever consciously
committed".* Accordingly, A rtaclo 227 s tip u la te d th a t a sp ecial Tribunal
s h a ll be c o n stitu ted to t r y the German Emperor, composed of fiv e judges,
one appointed by each cf the following Powers; United S ta te s , Great Britain,
France, I ta ly and Japan. When the German D elegation contended, in
connection w ith th is and eth er s tip u la tio n s re fe rre d to abeve, th a t a
t r i a l cf th e accused by trib u n a ls appointed by the A llie d and Associated
Powers would bo a one-sided and in eq u itab le proceeding, th e A llied and
A ssociated Powers re p lie d th a t they "consider th a t i t is impossible to
e n tru s t in any way the t r i a l of those d ire c tly responsible fo r offences
against humanity and in te rn a tio n a l rig h t to th e ir accomplices in th e ir
crim es."**
I t would appear th e re fo re th a t the authors of the document referred
to above considered acts in v io la tio n of the laws and customs of war,
or a t lo a s t seme of them, as c o n stitu tin g sim ultaneously "war crimes" and
"crimes against humanity" in a non-tochnical sense.

* See th e "P.eply of th e A llied and Associated Powers to the Observt! anj

of th.9 German D elegation on the Conditions of Peace11. P a ris ,
l6 June I 919, published by H.i-1. S tatio n ery O ffice, M iscellaneous,
Ho. 4 (1919)*
** Cp. c i t . , Section I I , "P en alties".
/However,
 E/CN.Ii / w. 19
Pago 15

However, the f i r s t peace tre a ty v ith Turkey, namely, the Treaty of

Sevres, signed on 10 August 19-0, contained in ad d itio n to the provisions
dealing v ith v io la tio n s of the lavs and customs of vur (A rticles 226-228
corresponding to A rtic le s 228-230 cf the Treaty of V e rsa ille s) a fu rth e r
provision, A rtic le 23Dj by which the Turkish Government undertook to hand
ever to the A llie d Powers the persons responsible fo r the massacres
committed during the var on Turkish t e r r it o r y . The relev an t p arts of
this a r tic le read as fellow s:
"The Turkish Government undertakes to hand over to the A llied
Powers the persons whose surrender may be required by the l a t t e r
as being responsible fo r the massacres committed during the
continuance of the s ta te of var on te r r it o r y which formed p art of
the Turkish Empire on the 1 st August, 19lk.
"The A llied Powers reserve to themselves the rig h t to designate
the Tribunal which c h all tr y the persons so accused, and the
Turkish Government undertakes to recognise such Tribune.. ,
"In the event of the League of Nations having created in
s u ffic ie n t time a Tribunal competent to deal w ith the said massacres,
t k 3 A llie d Powers reserve to themselves the rig h t to b rin g the t
accused persons mentioned above before such Tribunal, and the
Turkish Government undertakes equally to recognize such Tribunal",
The previsions of A rtic le 230 of th e Peace Treaty of Sevres were
obviously intended to cover, in conformity with th e A llied note of 1915
referred to in the preceding sectio n , offences which had been committed
on Turkish t e r r i t o r y against persons of Turkish c itiz e n s h ip , though of
Armenian or Greek ra c e . This a r tic le c o n stitu te s th e re fo re a precedent
for A rticles 6 (c) and 5 (c ) of th e Nrnberg and Tokyo C harters, and o ffe rs
an exemple of one of th e categories c f "crimes against humanity" as
understood by th ese onactments,
Th9 Treaty of Sevres was, however, not r a tif i e d and did not come
into fo rce . I t was replaced by th e Treaty of Lausanne, signed on
2k July I 923, which did not contain provisions respecting the punishment
of war crimes, but was accompanied by a "D eclaration c f Amnesty" fo r a l l
offonces committed between 1- August 19lk , and 20 November 1922.*
-----------
* "L oderation of Amnesty" and th e Protocol attached to i t , dated
2k July 1923.

/ill. THE PERIOD

 E/CN.kM9
Paco l6

in. TT2 PERICD BETWEEN THE WCRID WAES

1. The I :~-r1p-Ab ri r l - r Cor c f 1935-36

lu rin g tue It.JLo-AV 3eirdan c o n flic t a n a b e r cf p ro te s ts , appeals
and c c ln ra tio n s Lai boon issued "by H aile S o la -sia , the Emperor of
E th io p ia, dcnovnc: ng th e many end various crir.es ccam ittsd by I ta lia n
forces and tu th c r itie s against th e Ethiopian population, both during the
campaign and a f te r the annexation of E thiopia by I ta ly had been proclaimed
on 9 Lay 1936.
Cno category of the crimes committed e t th a t time became of special
concern to th e League of Kations and an ad hoc Committee of Thirteen
was created to consider tho use of poison gas by th e In e lia n Army and
Air Force. In one of th e meetings of th is Committee i t was sp ec ific a lly
pointed out th a t both p a rtie s signed th e Geneva Convention p rohibiting
th e use of gases in any form or circum stances, and a reference was made
to the f a c t th a t numerous cases of gas-poisoning were confirmed by
im p a rtia l sources.*
In h is personal address to th e Sixteenth Assembly of the League of
N ations, on L Ju ly 1936, th e Emperor of E th io p ia, describing th e fa te
su ffered by E th io p ia, s ta te d th a t " I t is not only upon w arriors th a t the
I ta lia n Government has made war, i t has above a l l attacked populations
fo r removed from h o s t i l i t i e s " . F i r s t , "towards the end of 1935 Ita lia n
a ir c r e f t hurled upon my armies bombs of te a r gas. The I ta lia n a irc ra ft
then re so rte d to mustard gas". D escribing l a t e r , how these operations and
th e technique applied fo r th is purpose were subsequently extended over
v a st areas of Ethiopian t e r r it o r y , th e Emperor 6aid th a t " it was thus
th a t as from the end of January 1936, s o ld ie rs, women, ch ild ren , c a ttle ,
r iv e r s , la k e s, and pastures wore drenched continually w ith th is deadly
r a i n . . . . in ordor to k i l l sy stem atically a l l liv in g c r e a tu r e s .... That
was the ch ief method of warf a r e . . . . the very refinement o f barbarism which
consisted of carrying ravage and te r r o r in to th e most densely populated
p a rts of th e te r r i t o r y . The object was to s c a tte r fe a r and death over
a g reat p a rt of th e Ethiopian te rrito ry ." * *
In a l e t t e r sent to th e Secretary-G eral of the League of Nations
on 17 March 1937# th e Emperor of E thiopia requested th e appointment of
a Commission of Enquiry to in v e stig ate a l l th e horrors committed in
E thiopia by the I ta lia n Government. This l e t t e r c o n stitu te s a fu rth er

* Statement by Mr. Eden on 8 A p ril 1936, see K b c "Contemporary

Archives", Volume-.il, 10^-1037.. r ^ ^c^ri.
** See Keesing, op. c i t . , pages 21T5-k.
/in d ic a tio n
 E/CN.4/W.19
Page 17-

indication th a t crimes coming under d iffe re n t notions had "been committed

on th a t t e r r it o r y . I t denounces th e execution of Bas D esta, a prisoner
of war, in v io la tio n of the Hague Convention, and th e alleged massacre
of over 6,000 persons in Addis Ababa, vhich occurred in February 1937**
In connection w ith the I ta lia n crimes committed In E thiopia i t is
to be re c a lle d th a t the Peace Treaty w ith I ta ly signed in P aris on
10 February 19^7, and now in fo rce , contains in A rtic le 45 provisions
dealing w ith I t a l y s o b ligations regarding th e apprehension and surrender
of war crim inals in general. This A rtic le s tip u la te s in te r a lia th a t
"Italy s h a ll take a-Ti necessary steps to ensure the apprehension and
surrender of: (a) Persons accused of having committed, ordered or abetted
war crim es, and crimes against peace or humanity" , who according to
paragraph 2 w ill be brought fo r t r i a l .
At the same time the Treaty contains a provision concerning E thiopia,
one of th e A llied and Associated Powers p a rtie s to th e Treaty, which has
an important bearing on the question of E th io p ias rig h t to prosecute
Ita lia n n atio n als responsible fo r crimes committed in th a t country. The
relevant A rtic le 38 reads as follow's:
"The date frcm which th e provisions of th e present Treaty sh a ll
become applicable as regards a l l measures and a c ts of any kind
whatsoever e n ta ilin g th e re s p o n s ib ility of I ta ly or of I ta lia n
n atio n als towards E thiopia, s h a ll be h eld to be October 3 1935".
In view of the f a c t th e t A rtic le 38 speaks of " a ll measures and acts
of any kind whatsoever" i t is c le a r th a t th e provisions dealing w ith war
criminals In general (A rticle 45) are n e ce ssa rily included among the
measures e n ta ilin g the re s p o n s ib ility of I ta ly or of I ta lia n n a tio n a ls.
Frcm th e foregoing i t would appear th a t th e crimes committed In
Ethiopia during th e Ita lo -E th io p ia n war have by th ese provisions been
qualified as war crimes and crimes against humanity.
2, The Spanish C onflict
A fu rth e r example of the use between the two World Ware of the
expression "d ic ta te s of humanity", in a ncn-technical cense, may be found
in the In te rn a tio n a l Agreement fo r C ollective Measures against P ir a tic a l
Attacks in th e M editerranean by Submarines signed a t Nyon on
14 September 1937, and supplemented th ree dayc la te r by an agreement
8igned a t Geneva in resp ect of sim ilar acts by surface v essels end
aircraft. R eferrin g to a ttack s a ris in g out of the Spanish c o n flic t and
committed a g a in st merchant ships not belonging to e ith e r of th e c o n flic tin g
Spanish p a r tie s , tho agreement cU>o.lnres them to To v io latio n of th e

* Op. c i t . , page 2499.

/ru le s of
 E/CN.!*/w. 19
Page 18

ru le s of in te rn a tio n a l la v , and to "co n stitu te acts contrary to the most

elementary iic ta te s of humanity, vhidh should bo Ju stly tre a te d as acts
of piracy".#

* Doc. c i t ., the Preamble.

/IV . NOTE ON
 e /CS.V w. 19
Page 19

17. NOTE OK THE DEVELOPMENTS DURING THE SECOND WCRID WAR

The unprecedented record of crimes committed "by Nazi Germany and

the other Axis Powers in the course of the Second World War, again made
the punishment of those g u ilty o f, or responsible f o r , th ese crimes a
matter of in te rn a tio n a l concern. Evidence which was reaching th e A llied
Governments during th e war, l e f t no doubt th a t in attem pting to e sta b lis h
a to ta lita r ia n order, th e Axis Powers had s e t aside the re s tra in in g
influence of the laws of war and th e laws of N ations. The record showed
th at many and verious crimes were being committed, not only against
A llied combatants and prisoners of war, but also against th e c iv ilia n
populations, both of the occupied countries and of th e Axis countries
themselves.
In the face of so much i l l e g a l i t y and inhumanity, th e A llied
Governments deemed i t th e ir duty not merely to issu e s te m warnings; they
resoived th a t re trib u tio n fo r these crimes and a tr o c itie s must take i t s
place among tho major purposes of th e war. Innumerable o f f ic ia l nfl
sem i-official D eclarations dealing w ith th is problem were issued. A
special inter-governm ental agency, th e United Nations War Crimes Commission,
was e stab lish ed in 19^3* to in v e stig a te th e crimes and submit
recommendations to the Governments,
In the circum stances, i t is not possible to c o lle c t or to review
those declaratio n s and recommendations adequately in the present Report.
Two main fe a tu re s of these pronouncements should, however, be emphasized
with regard to th e d ire c tio n in which the re trib u tiv e actio n was
developing.
F ir s tl y , a l l these d ecla ra tio n s bear w itness to th e In te n tio n of the
Allied Governments th a t not only th e le s s e r war crim in als, but also the
leaders and organizers responsible fo r th ese crimes should be brought to
Justice. This in te n tio n found i t s expression in th e D eclaration on German
A trocities in Occupied Europe of 30 October 19^3> issued by th e Moscow
Conference, in which th e th re e major Powers, the United Kingdom, the United
States, and th e Soviet Union, speaking in th e in te re s ts of the th irty -tw o
United N ations, solemnly declared th a t "major war crim inals whose offences
have no p a rtic u la r geographical lo c a tio n .. . . .w ill be punished by a Jo in t
decision of th e Governments of the A llie s " . This Document, which l e f t open
the question whether th e major war crim inals should be proceeded against by
summary adm inistrative actio n or by a court of law, was subsequently implement*
in the London Agreement of 8 August 19^5, fo r the Prosecution and Punishment
of the Major War Criminals of the European Axis. The l a t t e r Instrument gives
evidence th a t preference was eventually given to th e ir g u ilt being adjudicated
/according
E/CN.yw.l9
Page 20

according to law, ra th e r than on purely moral or e th ic a l grounds. The same

a ttitu d e was talion in regard to th e t r i a l of th e major war crim inals in the
Far E ast.
Secondly, a l l these D eclarations shew th a t the in s e rtio n in the Charters
of the In te rn a tio n a l M ilita ry Tribunals a t Nrnberg and Tokyo, of provisions
concerning "crimes against humanity", was due to a d esire th a t the retributive
actio n of the United Nations should not be lim ited to bringing to justice
those who had committed war crimes in the tr a d itio n a l and narrower sense - i.e
v io la tio n s of the laws and customs of war, p erp etrated on A llied te rrito ry or
against A llied c itiz e n s - but th a t such a tr o c itie s should also be punished vfce
they were committed on Axis te r r it o r y and against persons of other than Allied
n a tio n a lity .
The subsequent Peace T re a tie s, which, follow ing the Peace Conference of
P aris of 1946, have been concluded w ith I ta ly and th e four s a t e l l i t e countries
are a fu rth e r step in th is development. A ll these T reaties contain provisions
regarding not only persons accused of war crimes, in the tr a d itio n a l sense,
but also of crimes against humanity and crimes against peace. Thus, the Peace
Treaty w ith I ta ly , signed in P aris on 10 February 194-7* provides in Article 45
th a t I ta ly s h a ll talie n necessary steps to ensure th e apprehension and
surrender fo r t r i a l of persons accused of having committed, ordered or abetted
v ar crimes and crimes against peace or humanity. At th e request of the United
Nations Government concerned, I ta ly s h a ll likew ise make av ailab le as witnesses
persons w ithin i t s Ju ris d ic tio n , whose evidence is req u ired fo r the t r i a l of
persons re fe rre d to above.
Sim ilar provisions have also been included in the Peace T reaties with
Roumanie, B ulgaria, Hungary and Finland. I t must be presumed th a t the tenis
"wer crimes", "crimes against humanity", as w ell as th e term of "crimes again?,
peace", which ere not defined in th ese T re a tie s, have the same connotation as
in the London Charter of 1945.

/PART I
 e / c1,\Iv/ w.19
Page 21

PAST I

informationon human eights protected

BY THE LAWS AND CUSTOMS OOF WAR

/INTRODUCTION
e / cn.U/w.19
Pago 20

INTRODUCTION TO THE NRNBERG A ID TOK IO T R IA L S

In tho R esolution of tho Economic and Social Council of 21 July 19^

under the heading "Documentation, paragraph 4, emphasis has been la id upon
the c o lle c tio n of inform ation a ris in g from the t r i a l s of major war criminal^
held before the In te rn a tio n a l M ilitary Tribunals in Nrnberg and Tokyo
re sp ec tiv e ly .
For reasons given in the Preface, th a t i s , p a rtic u la rly in view of the
comparatively short tin e made av ailab le fo r tho submission of th is Report,
i t hes not boon possible to present a f u l l account of the information which
these two t r i a l s provide. As to the Tokyo T ria l, an a d d itio n al reason is
th a t i t is not completed. More d e ta ile d reference to th is is made in the
Introductory Notes to Chapter I I . Specific points concerning th e Nrnberg
T ria l are ra is e d in the various Sections of Chapter I .
Both ero outstanding amongst a l l other t r i a l s held so f a r , in th at they
deal w ith two comparatively novel types of in te rn a tio n a l offences, namely
crimes against peace and crimes eg ain st humanity. In regard to war crimes
proper, th a t is in regard to th e v io la tio n of th e laws and customs of var
in th e tr a d itio n a l sense, th e two t r i a l s are conspicuous in th a t never before
have courts of law had to deal w ith crimes of such magnitude, whether as
regards th e type or the scale of the crimes committed. This i s particularly
tru e in resp ect of the Nrnberg T r ia l.
Within th e scope of th e Report, as lim ite d by th e time available for
c o lle c tin g th e inform ation, th e connection between th e crimes perpetrated
and the human rig h ts v io la te d ha6, whenever p o ssib le, been stre sse d . Special
a tte n tio n has been paid to th e re la tio n s h ip e x istin g between th e law and the
human rig h ts concerned, though only in broad lin e s , and in p a rtic u la r to the
extent to which v io la tio n s of human rig h ts are covered by the ex istin g lav.
Questions of the su ffic ie n cy , c la r ity or u n ity of th e law have also been
considered in t h i s connection.
The importance of th e su b jects considered in connection w ith the Nrnberg j
T ria l has made i t impossible to include c e rta in questions which have been
d e a lt w ith in connection w ith the Tokyo T r ia l or to go beyond th e sources of
inform ation provided by the Indictment and the Judgment. For instance, it
has not proved possible in th e time av ailab le to prepare, in connection with
th e Nrnberg T r ia l, th e sectio n dealing w ith th e sphere w ith in which the
rig h ts of the victim s and th e rig h ts of the accused may be 6aid to have
c o n flic te d a t the time of th e offence. Cn the other hand, some information
on points a ris in g in both t r i a l s has, fo r reasons of te ch n ica l expediency,
been in se rte d in th e Chapter dealing with t r i a l s other than those conducted
by the Nrnberg and Tol:yo T ribunals. Such is th e case w ith the rig h ts of the
/accused at the
 E/CN.V w. 19
Page 23

accused a t th e time of th e t r i a l . Information on th is point w ill be found in

Chapter I I I , under E, pege 250 and follow ing.
The two main aspects in which the inform ation concerning human rig h ts
has te e n co llectod and presented in the two subsequent chapters, are the
Ju risd ic tio n of the two Tribunals, on the one hand, and the v io la tio n s of
the rig h ts of the victim s of war crimes, on the o th er. These are preceded
b a short ou tlin e on the le g a l b a sis of the t r i a l s .

/ chapter I
 e / cn.^/ w.19
Page 2k

CHAPTER I - THE DURHBFRG TRIAL

A. LEGAL BASIS GP THE '..RIAL

The Nrnberg Tribunal found its being in the Agreement entered into
in Loudon on 6 August 19K5, by the Four Major Powers, in which they provided
fo r the establishm ent of an In te rn a tio n a l M ilita ry Tribunal fo r the tr ia l
of war crim inals vhose offences had no " p a rtic u la r geographical location".
In an Annex to the Agreement, the Four Powers provided a Charter of the
Tribunal, s e ttin g fo rth in t h ir ty a r tic le s the c o n stitu tio n , Jurisdiction
and general p rin c ip le s, and powers of th e Tribunal, th e procedure to be
followed in the course of th e prelim inary in v e stig atio n s and in the conduct
of the t r i a l , and th e provisions concerning th e Judgment and sentence.*
In accordance w ith A rtic le 9 of the Agreement, nineteen Governments
of the United Nations** have expressed th e ir adherence to the Agreement
and the C harter, both of which had been concluded by th e Four Powers "acting
in the in te re s ts of a l l the United Nations".***
The establishm ent of the Tribunal was a n a tu ra l and lo g ic a l outcome
of the many declaratio n s made from time to time during th e recen t war
by the Governments of th e United Nations of th e ir in te n tio n th a t War Criminal
should be brought to Justice.**** A fter re c a llin g in th e Preamble th a t, in
accordance w ith th e Moscow D eclaration of 30 October I 9U3, those Germans vho
heve been responsible fo r or have taken a consenting port in a tro c itie s
and crimes w ill he "cent hack to th e countries in which th e ir abominable
deeds were done" in order th a t they may he tr i e d by th e National Courts of
thoso c o u n trie s, th e Agreement provides in A rtic le 1, as alreedy indicated,
th a t an In te rn a tio n a l Tribunal s h a ll be e sta b lish e d "for th e t r i a l of war
crim inals whose offences have no p a rtic u la r geographical lo catio n " - these
being th e major war crim in als.
This decision of the S ig n ato ries i s a lso re s ta te d in A rtic le 1 of
th e C harter i t s e l f , w ith th e a d d itio n th a t th e Tribunal s h a ll he established
fo r the J u st and prompt t r i a l and punishment of th ese crim in els.

* Agreement by th e Government of the United S tates of America, the

P rovisional Government of the French Republic, th e Government of the
United Kingdom of Great B rita in and Northern Irelan d and th e Government
of th e Union of Soviet S o c ia lis t Republics fo r th e Prosecution end
Punishment of th e Major War Criminals of th e European Axis, signed in
London on August 19^5, H.M.S.O. Chid. 666U.
** These Governments are the follow ing:
Greece, Denmark, Yugoslavia, the N etherlands, Czechoslovakia, Poland,
Belgium, E thiopia, A u stra lia , Honduras, Norway, Panama, Luxemburg,
H a iti, New Zealand, In d ia, Venezuela, Uruguay end Paraguay.
*** The Preamble to th e Agreement, paragraph U.
**** See, H is to ric a l Survey of th e Problem of V iolations of Human Rights.
/The Tribunal
 e / cnA / w.19
Page 25

Tlie Tribunal was invested by the Charter v ith power to tr y and punish
persons who had committed crimes against peace, war crimes end crimes against
humanity as defined in the C harter.
In i t s Judgment the Tribunal sta te d th a t in creatin g the Tribunal the
Signatory Powers "have done tog eth er what any one of them might have done
singly; fo r i t is not to be doubted th a t any natio n had the rig h t thus to
set up sp ecial courts to adm inister law. V ith regard to the c o n stitu tio n
of the court, a l l th a t the defendants are e n title d to ask is to receive a
f a i r t r i a l on the fa c ts and law".*
In add itio n , the Tribunal expressed the opinion th a t th e making of the
Charter was the exercise of the sovereign le g is la tiv e power by the countries
to which the German Reich unconditionally surrendered; and the undoubted
rig h t of these countries to le g is la te fo r the occupied t e r r i t o r i e s has been
recognized by tho c iv iliz e d world.**
These b r ie f statem ents of the Tribunal, as w ell as th e relev an t
provisions of the Agreement and the C harter, ra is e a number of in tr in s ic
problems and questions as to th e exact sta tu s of the Nrnberg Tribunal and
i t s m ilita ry , in te rn a tio n a l, Ju d ic ia l and ad hoc c h a ra c te ris tic s which are
of primary relevence in assessin g properly th e importance of th e Nrnberg
T ria l and the a u th o rity of th e Nrnberg Judgment fo r th e development of
/
In te rn a tio n a l Law in general, and fo r the p ro tectio n of human rig h ts in
p a rtic u la r. Here, th e question would a ris e whether and to what extent the
a ttitu d e of th e Tribunal w ith regard p a rtic u la rly to the v io la tio n s of
human rig h ts which come w ithin th e notion of crimes against humanity, and
i t s in te rp re ta tio n of th e law in general, was or i s binding in other cases
tr ie d or to be tr i e d before other co u rts, whether th e In te rn a tio n a l M ilitary
Tribunal fo r th e Par E ast, or th e municipal, occupational or m ilita ry trib u n al
of other United Nations or other co u n tries.
An analysis of th ese highly important problems can, however, be made
only a f te r 11 th e prelim inary questions concerning th e law of th e C harter,
as w ell as th e exposition of the fa c ts r e la tin g to th e v io la tio n s of human
rig h ts , as esta b lish e d by th e T ribunal, have f i r s t been d e alt w ith. They
must th e re fo re be l e f t fo r one of th e concluding sections of the Report.***
I t may be mentioned th a t in accordance w ith A rtic le 2 of th e C harter,
the Tribunal consisted of fo u r members, each w ith an a lte rn a te , one member

* Judgment of the In te rn a tio n a l M ilita ry Tribunal fo r th e T ria l of C-erman

Major Var Crim inals, Nrnberg 19^6, H.M.S.O., Cmd. 696 k, page 36*
(heroin a f te r c ite d as The Judgment)
** Ib id , page 38.
*** See P a rt I I , Chapter I
/and one a lte rn a te
 E/CN.V w.19
Page 26

and one a lte rn a te having been appointed by each of the S ig n ato ries.*

B. JURISDICTION GF THE TRIBUNAL

P art I I of the Charter of the In te rn a tio n a l M ilita ry Tribunal at
Nrnberg** which se ts fo rth the J u ris d ic tio n and s ta te s th e general
p rin c ip le s to be followed in th e conduct of the t r i a l of the major war
crim inals of the European Axis co u n tries, and in p a rtic u la r i t s A rticles 6,
7, 8 end 9 is te c h n ic a lly speaking the law which the Charter required the
Tribunal to adm inister, and by which the Tribunal was bound.
A rtic le 6 provides th a t th e Tribunal " sh a ll have the power to try and
punish persons who, actin g in th e in te re s ts of the European Axis countries,
whether as individuals or as members of org an izatio n s, committed any of the
follow ing crim es". According to the sp e c ific provisions of th is a rtic le
"the following a c ts , or any of them, are crimes coming w ith in th e Jurisdictlci
of the Tribunal fo r which th ere s h a ll be in d iv id u al re s p o n sib ility :
"(a) Crimes against peace: namely, planning, p rep aratio n , in itiatio n
or waging of a war of aggression, or a war in v io la tio n of international
tr e a t i e s , agreements or assurances, or p a rtic ip a tio n in a common plan
or conspiracy fo r the accomplishment of any of the foregoing;
"(b). War Crimes: namely, v io la tio n s of th e laws or customs of war.
Such v io la tio n s s h a ll include, but not be lim ited to , murder,
ill-tre a tm e n t or deportation to slave labour or fo r any other purpose
of c iv ilia n population of or in occupied t e r r it o r y , murder or
ill-tre a tm e n t of prisoners of war or persons on th e seas, k illin g of
hostages, plunder of public or p riv ate property, wanton destruction
of c i t i e s , towns or v illa g e s , or d ev astatio n not J u s tif ie d by military
n ecessity;

* Those members were the following:

Lord Ju stic e LAWRENCE, Member fo r th e United Kingdom of Great Britain
and Northern Irelan d ; Mr. Ju stic e BIRKETT, A lternate Member.
Mr. Francis BIDDLE, Member fo r th e United S tates of America;
Judge John J . PARKER, A lternate Member.
M. le Professeur Donnedieu de VABRES, Member fo r th e French Republic;
M. Le C onseiller R. FALCO, A lternate Member,
Major General I . T. NIKITCHEIIKO, Member fo r th e Union of Soviet
S o c ia lis t Republics; Lieutenant Colonel A. F. VOLCEKOV, Alternate
Member.
Lord J u stic e Lawrence was elected President of th e Tribunal for the
T ria l a t Nrnberg, in accordance w ith A rtic le 4 (b) of the Charter.
** Charter of the In te rn a tio n a l M ilitary T ribunal, annexed to the Agreement
fo r the iro se c u tic n and Punishment of th e Major Vier Criminals of the
European Axis, signed in London, on 8 August 1945.
/" ( c ) Crimes against
 E/CN.UA .19
Page 27

"(c) Crimes against humanity: namely, murder, exterm ination,

enslavement, deportation, end other inhumane acts committed against
any c iv ilia n -popilation, before or during th e war, or persecutions
on p o litic a l, r a c ia l or re lig io u s grounds in execution of or in
connection w ith any crime w ith in th e J u ris d ic tio n of th e Tribunal,
whether or not in v io la tio n of the domestic law of th e country where
, p e rp etrated .
"Leaders, organizers, in s tig a to rs and accomplices p a rtic ip a tin g
in th e form ulation or execution of a common plan or conspiracy to
commit any of the foregoing crimes are responsible fo r a l l acta
performed by any persons in execution of such plan".
The above te x t of sub-paragraph (c) is the English te x t as amended by
the B erlin Protocol of 6 October 1945,* by v irtu e of which the semicolon
o rig in a lly put between "the war" and "or persecutions" was replaced by a
comma follow ing the discrepancy which had been found to e x ist between the
o rig in als of A rtic le 6, paragraph (c) of th e Charter in the Russian language,
on the one hand, and the o rig in a ls in th e English and French languages, on
the o th er, a l l of which have equal a u th e n tic ity .
Consequently, the Protocol d eclares th a t A rtic le 6 (c) in th e Eussian
te x t is c o rre c t, and th a t th e meaning and in te n tio n of the Agreement and
Charter req u ire th a t th e said semicolon in th e English te x t should be changed
to a comma, end th a t the French te x t should be emended to read as follow s:
"EES CRIMES CONTRE L'HUMANITE, c 'e s t d ire , l a ssa e sln a t,
l exterm ination, la rduction en esclavage, la d p o rtatio n , e t to u t
a u tre acte Inhumain commis contre toutes populations c iv ile s , avant
ou pendant la guerre, ou bien le s perscutions pour des motifs poil tiquer
raciaux, ou re lig ie u x , lorsque ces actes ou perscutions, qu i l s a ie n t
c o n stitu ou non une v io la tio n du d ro it interne du pays o U s ont t
p e rp tr s, ont t commis la s u ite de to u t <rime re n tra n t dans la
competence du Tribunal, ou en lia is o n avei ce crime" .
The o rig in a l French te x t of a r t i c l e 6 (c) p rio r to the amendment, woo a-
follows :
"EES CRIMES CONTRE LECMANITE, c e s t d ire l a ssa ssin a t,
l'ex term in atio n , la rduction en esclavage, la dportation, e t to u t
au tre acte inhumain comnlB contre to u tes populations c iv ile s , avant
ou pendant l a guerre; ou bien le s perscutions pour des m otifs politiques
raciaux, ou re lig ie u x , commises la s u ite de to u t crime re n tra n t dans

* Protocol R ectifying Discrepancy In Text of C harter, drawn up by the

Governments who had concluded the Agreement of a August 1945; published
in. "T ria l of the Major War Criminals before th In te rn a tio n a l M ilitary
Tribunal", Vol. 1, O ffic ia l Documents, Nrnberg, 194'/.
/ l a comptence du
 E/CN.VW.19
Page 28

l a competence du T rib u n al I n te r n a tio n a l ou e y r a tta c h a n t, que ces

p e rsc u tio n s a ie n t c o n s titu e ou non une v io la tio n du d r o i t Interne
du paye o e lle s o n t t p e rp tr e s ."
The c o rre c tio n s made by th e B e r lin P ro to co l have an im portant bearing
on th e in te r p r e ta tio n o f th e n o tio n o f crim es a g a in s t hum anity. Their
consequence i s a ls o t h a t th e words " in e x ecu tio n o f 01* i n connection with
any crime w ith in th e J u r is d ic tio n of th e T rib u n al" r e f e r now t o th e whole
t e x t o f A r tic le 6 ( c ) .*
I t has been 6a id t th e o u ts e t t h a t th e C h arter i s th e law by which
th e T rib u n al was bound. The g e n eral a t t i t u d e o f th e T rib u n al in regard to
t h i s p a r tic u la r q u e stio n found i t s e x p re ssio n in th e Judgment which says that
"tho law of th e C h arter i s d e c is iv e , and b in d in g upon .the T rib u n al,"* * As
t o th e c h a ra c te r o f th e C h arter i t s e l f th e T rib u n al made th e follow ing
d e c la ra tio n , which has a lre a d y been r e f e r r e d t o in p a rt when d iscu ssin g the
l e g a l b a s is o f th e T rib u n al:
"The making of th e C h erter was th e e x e rc is e of th e sovereign
l e g i s l a t i v e power by th e c o u n trie s t o which th e German K eich .
u n c o n d itio n a lly su rren d ered ; and th o undoubted r ig h t o f th e se countries
t o le G is la to f o r th e occupied t e r r i t o r i e s has been recognized by the
c iv i l i z e d w orld. The C harter, i s n o t an a r b itr a r y e x e rc is e of power
on th e p a r t of th e v ic to rio u s n a tio n s , b u t in th e view o f th e Tribunal,
as w i l l be shown, i t i s th e e x p re ssio n of in te r n a tio n a l law existing
a t th e tim e of i t s c re a tio n ; and t o t h a t e x te n t i s i t s e l f a contribution
to in te r n a tio n a l law ,"***
Tho T rib u n al was o f course bound by th e law o f th e C h arter a lso in regard
t o th e d e f in itio n which th e C h arter g iv es b o th o f war crim es and crimes
a g a in s t hum anity.**** This p a r tic u la r q u e stio n i s th e s u b je c t o f some specific
and more e la b o ra te d statem en ts made by th e T rib u n al in th e Judgment. Before
coming, however, to th e e x p o sitio n o f what was th e a t t i t u d e o f th e Tribunal to
th e s u b sta n tiv e law as l a i d down in th o C h a rte r, i t w i l l be necessary f ir s t +*
analyse very b r i e f l y th e re le v a n t p ro v is io n s o f th e C h arter and to point out
t h e i r most c h a r a c te r is tic f e a tu r e s . For i t i s only by examining th e rules
l a i d down in th o se p ro v isio n s end th e n by comparing them w ith th e maimer in
which th e T rib u n al a p p lie d th o se p ro v isio n s, and th e e f f e c t which i t gave thou
i n i t 6 c o n sid e ra tio n s and Judfjnent, t h a t we can f in d an answer to the question
t o what e x te n t and in what way human r ig h ts v io la te d by v ario u s crimes are,
o r a re n o t, p ro te c te d by th e e x is tin g ru le s o f I n te r n a tio n a l law . In

* See undor I (b ), J u r is d ic tio n over Crimes a g a in s t Humanity

** Tine Judgment, page 3* .
*** Ib id , page 38
**** The Judgment, page 6 h,
/j4aMia(rins the
 E/CU.U/W.19
Page 29

discussing the a ttitu d e of the T ribunal, we s h a ll confine ourselve*

only to i t s general considerations, reserving a more d e ta ile d
exposition to a fu rth e r Section o f th is p o rt of the Report where
the subject of v io la tio n s o f the rig h ts o f the victim s w ill be
presented.

I. JURISDICTION OVER OFFENCES

(a) War Crimes
In c o n tra d istin c tio n to h o s tile a c ts of s o ld ie rs, by which
the l a t t e r do not lose th e ir p riv ileg e of being tre a te d as law ful
members o f armed fo rce, and in c o n tra d istin c tio n to a l l so rts of
force o r means applied by a b e llig e re n t against enemy armed forces
and other enemy persons or property, and d ire c ted to the overpowering
of the enemy as w ell as to the occupying and adm inistering of the
enemy t e r r it o r y by a l l leg itim ate means, war crimes in the
conventional sense are such a c ts of so ld iers or other in d iv id u als
which c o n stitu te v io la tio n s of the laws and customs of w arfare. They
include a c ts contrary to In te rn a tio n a l Law p erp etrated in v io la tio n
of the lavra of the c rim in a ls' own S ta te , as w ell as crim inal a c ts
contrary to the lawB of war committed by order and/or on b eh alf of
the enemy S ta te . Such a c ts c o n stitu te v io la tio n s o f municipal
penal laws, of in te rn a tio n a l conventions, and o f the general
p rin c ip le s o f crim inal law as derived from the crim inal law of a l l
c iv iliz e d n a tio n s. To th a t ex ten t th e notion o f war crimes is based
on the view th a t S tates and th e ir organs are su b ject to crim inal
re s p o n sib ility under In te rn a tio n a l Law.
The rig h t of the b e llig e re n t to punish during the war, such
war crim inals as f a l l in to h is hands is a w ell-recognized p rin c ip le
of In te rn a tio n a l Law. I t is a rig h t o f which he may e ffe c tiv e ly
av ail him self a f te r he has occupied a l l or p a rt o f enemy te r r ito r y ,
and i s thus in the p o sitio n to seize war crim inals who happend to be
th e re . He may, as a condition o f the arm istice, impose upon, the
a u th o ritie s of the defeated S tate ehe o b lig atio n to hand over persons
charged with the commission of war crimes, reg ard less of whether such
persons are present in the t e r r it o r y a c tu a lly occupied by him o r in
the te r r it o r y which, a t the successful end o f h o s t i l i t i e s , he w ill be
in a p o sitio n to occupy. For in both cases the accused, a re , in
e ffe ct, in h is power. And although the Treaty o f Peace brings to an
end the rig h t to prosecute war crim in als, no ru le o f In te rn a tio n a l law
prevents the v icto rio u s b e llig e re n t from imposing upon the defeated
jState the o b lig a tio n , as one o f the provisions o f the arm istice or of
/th e Peace
e / cnA / w.19
Page 30

th e Peace Treaty, to surrender fo r t r i a l persons accused of war crimes.*

In spiue of the uniform designation of various a c ts as war
crim es, a number o f d iffe re n t kinds and types of war crimes can be
d istinguished on account of the e s s e n tia lly d iffe re n t ch aracter of the
a c ts , namely: (a) according to whether these a c ts have been
committed by members of the enemy armed forces o r by individuals who
belong to or rep resen t enemy a u th o ritie s oth er than m ilita ry , or are
a ctin g in the in te r e s t of the enemy; (b) according to what rig h ts
of in d iv id u al persons or groups o f persons have been v io lated , and/or
what leg itim ate in te re s ts of other b e llig e re n ts or general in te re s ts
of the community of nations have been outraged.
I t w ill be observed th a t, w ithout exception, a l l the crimes
s p e c ific a lly enumerated in A rtic le 6 (b) of the Charter as
c o n stitu tin g war crimes in th e ir te ch n ica l sense, are crimes which
c o n stitu te a ttack s on the in te g r ity or the physical w ell-being of
in d ividuals or groups o f people, and of property, thus v io la tin g
inherent human r ig h ts . But, from the law as s ta te d in th a t a r tic le ,
ftnfl in p a rtic u la r from the words: "Such v io la tio n s ( i . e . o f the lavs
o r customs of war) s h a ll include, bu t no t be lim ite d t o .......... "
i t is c le a r th a t these crimes are not the only ones which the authors
o f the C harter had in mind and w ith which the Tribunal was expected
to be concerned in the T r ia l. I t follow s a lso th a t not only
crimes o f the a tr o c itie s type, bu t also v io la tio n s of any o th er
law or custom o f war may be considered war crimes irre sp e c tiv e of
whether such crimes might, or might n o t, v io la te c e rta in human rig h ts,
and whether in the l a t t e r case they only c o n stitu te purely technical
offences.
We s h a ll see l a t e r in more d e ta il and in the lig h t of the
Indictm ent and the Judgment which human rig h ts have in f a c t been
v io la te d in connection w ith sp e c ific war crimes committed, and how
tliey have been v io la te d . Here, we are only concerned w ith the
law re la tin g to war crim es. As has already been pointed out the
Tribunal considered i t s e l f bound by the C harter in the d e fin itio n

* See, L. Oppenheim, In te rn a tio n a l Law, Vol. I I , Sixth E dition,

Longmans Green & Co., London, 1 9 ^ , PP. 1+50-1+58.
As to examples in the p a st of provisions o f the Peace T reaties
imposing upon the defeated S tate the duty to surrender fo r
t r i a l of persons accused of war crimes, see: H is to ric a l
Survey of the Problem of V iolations of Human R ig h ts.

/which
 e /CH.U/w. 19
Page 31

which i t gives of war crimes. The Tribunal sta te d , however, th a t

the crimes defined by A rtic le 6 (b) "were already recognized as
war crimes under In te rn a tio n a l Law. They were covered by A rtic le s h6 ,
50, 52 and 56 of the Hague Convention of I 907, and A rtic le s 2, 3>
and 91 of the Geneva Convention of 1929* That v io la tio n s of these
provisions c o n stitu te d crimes fo r which th e g u ilty in d iv id u als were
punishable i s too w ell s e ttle d to admit of argument."*
However, when explaining th e law of th e Charter in connection
with th e c rim in a lity of planning or waging a war of aggression, and
in p a rtic u la r when dealing w ith a fundamental p rin c ip le of a l l law
th a t th e re can be no punishment of crime without a p re -e x istin g law,
the Tribunal found an opportunity of touching in d ire c tly upon th is
question and expressed i t s view in th e follow ing way:
"The Hague Convention of I 907 p rohibited re s o rt to
c e rta in methods of waging war. These included th e inhumane
treatm ent of p riso n e rs, the employment of poisoned weapons,
th e improper use of fla g s of tru c e , and sim ila r m atters. Many of
these pro h ib itio n s have been enforced long before th e date of
the Convention; but since 1907 they have c e rta in ly been crimes,
punishable as offences against the laws of war; y et the Hague
Convention nowhere designates such p ra c tice s as crim inal, nor
is any sentence prescribed, nor any mention made of a court to
tr y and punish offenders. For many years p a st, however, m ilita ry
trib u n a ls have t r i e d and punished in d iv id u als g u ilty of v io la tin g
the ru le s of land warfare la id down by th is Convention."**
The Tribunal sa id , fu rth e r, th a t i t must be remembered th a t
In te rn a tio n a l Law is not the product of an in te rn a tio n a l le g is la tu r e ,
and th a t in te rn a tio n a l agreements have to deal w ith general p rin cip les
of law, and not w ith adm inistrative m atters of procedure. The
Tribunal went on to say th a t:
"The law of war i s to be found not only in t r e a t i e s , but
in th e customs and p ra c tice s c. s ta te s which gradually
obtained u n iv ersal reco g n itio n , and from th e general
p rin c ip le s of ju s tic e applied by J u r is ts and p racticed by
m ilita ry c o u rts. This law i s not s t a t i c , but by continual
adaptation follows th e needs of a changing world. Indeed,

* The Judgment, p. 6 k.
** The Judgment, p. 40
/ i n many
e /CN.V w.19
Page 32

in many cases tr e a tie s do no more than -express and define

fo r more accurate reference the p rin c ip le s of law already
e x istin g ." *
The Tribunal also thought i t Important to r e c a ll th a t in A rtic le 228
o f the Treaty of V e rsa ille s , the German Government ex p ressly recognized
the rig h t of the A llie d Powers to b rin g before m ilita ry trib u n a ls
persons accused o f having committed a c ts in v io la tio n of the laws and
customs o f war,**
. Dealing w ith the Defence argument th a t the Hague Convention does
not apply in th is case, because of the "general p a rtic ip a tio n clause"
contained in A rtic le 2 o f the Fourth Hague Convention o f I 907, to
which several o f the b e llig e re n ts i n the recen t war were no t parties,***
the Tribunal expressed the opinion th a t i t was not necessary to decide
th i question, and added:
"The ru le s of land warfare expressed in the Convention
undoubtedly represented an advance over e x istin g in te rn a tio n a l
law a t the time o f th e ir adoption. But the Convention expressly-
s ta te d th a t i t was an attem pt 'to revise the general laws and
customs o f w ar', which i t thus recognized to be then e x istin g ,
b u t by 1939 these ru le s la id down in the Convention were
recognized by a l l c iv iliz e d n atio n s, and were regarded as
being d e clarato ry o f the laws and customs o f war which are
re fe rre d to in A rtic le 6 (b) o f the C h arter."
"A fu rth e r submission was made th a t Germany was no longer
hound by the ru le s of land warfare in many o f the te r r i t o r i e s
occupied during the war, because Germany had completely
subjugated those co u n tries and incorporated them in to the
German Reich, a f a c t which gave Germany a u th o rity to deal with
the occupied countries as though they were p a rt o f Germany.
In the view o f the Tribunal i t i s unnecessary in th is case to
decide whether th is doctrine o f subjugation, dependent as i t is
upon m ilita ry conquest, has any a p p lic atio n where the subjugation
i s the r e s u lt o f the crime of aggressive war. The doctrine was

* The Judgment, p. 1+0.

** I b id ., p. 1+1.
*** This clause provides: "The provisions contained in the regulations
(Rules of Land Warfare) re fe rre d to in A rtic le I as w ell as in the
present Convention do not apply except between contracting powers,
and then only i f a l l the b e llig e re n ts ate p a rtie s to the Convention."

/never
 TZ/CiX,k/\l .19
Page 33

never considered to be applicable so long as th ere vas an

army in the f ie ld attem pting to re sto re the occupied countries
to th e ir tru e owners, and in th is case, th e re fo re , the doctrine
could not apply to any te r r it o r ie s occupied a f te r the
1 s t September, 1939 As to the war crimes committed in Bohemia
and Moravia, i t i s a s u ffic ie n t answer th a t these t e r r i t o r i e s
were never added to the Beich, b u t a mere p ro te c to ra te was
e sta b lish e d over them."*
(b ) Crimes ag ain st humanity**
As has already been pointed out, the Nrnberg i s the f i r s t
in te rn a tio n a l le g a l enactment which has form ulated the d e fin itio n of
crimes a g ain st humanity, though the conception o f them is not e n tire ly
novel.
Sub-paragraph (c) of A rtic le 6 o f th e C harter appears prima fa c ie to
lay down a s e t of novel p rin c ip le s o r, a t le a s t, to pave the way fo r
considerable progress in the re la tio n sh ip between the community o f
nations, i t s member s ta te s and in d iv id u al c itiz e n s o f these s ta te s ,
and between In te rn a tio n a l Law and municipal law.
The following th ree elements of the d e fin itio n s of crimes
against humanity as la id down in A rtic le 6 (c) appear to contain
these novel p rin c ip le s:
(1) "before and during the war",
(2) "against any c iv ilia n population",
(3) "whether o r not in v io la tio n o f the domestic law of the
country where p erp e tra ted ."
Vie s h a ll therefore analyze in more d e ta il each of these elements
as they appear from the context of A rtic le 6 (c) as v e il as in the
lig h t of the Judgment pronounced by the Nrnberg T ribunal.
The f i r s t p rin c ip le in dicated by the words "before or during
the war" apparently im plies th a t In te rn a tio n a l Law contains penal
sanctions ag ain st in d iv id u als, applicable not only in time o f war,
but also in time of peace. This me .ns th a t there is in existence

* The Judgment p. 65.

** For a d e ta ile d an aly sis of the notion of crimes ag ain st humanit,,
reference i s made to the a r tic le of E. Schwelb on "Crimes against
Humanity", w ritte n fo r the B ritis h Year Booh of In te rn a tio n a l
Law, 19^6, and which has been used as the b a sis fo r the d ra ftin g
of th is sectio n , w ith the a u th o rs kind perm ission.
A number o f preparatory papers on th is subject issued by the
Commission fo r purposes other than th is Eeport have a lso been
u tiliz e d .
/a system
e /CN.V w.19
Page 3^

a syotem of in te rn a tio n a l crim inal law under which in d iv id u als are

resp o n sib ile to the community o f nations fo r v io la tio n s of ru le s of
in te rn a tio n a l crim inal law, and according to which a tta c k s on the
fundamental li b e r t i e s and c o n stitu tio n a l rig h ts of peoples and of
in d iv id u al persons, i . e . inhuman a c ts , o o n stitu te no t only in time
of war, but a lso in time of peace, in c e rta in circum stances,
in te rn a tio n a l crim es.
The adoption by the C harter o f th is p rin c ip le taken in conjunction
w ith the p rin c ip le s th a t i t i s irre le v a n t whether or not such crimes are
committed in v io la tio n of the domestic law of the country where
p e rp e tra ted , found i t s expression in the c re a tio n o f the in te rn a tio n a l
J u d ic ia l organs* which were c a lle d upon to determine the g u ilt
o r innocence o f a c e rta in category of the a lleg ed crim inals responsible
f o r th e commission o f such inhuman a c ts , thus o v er-rid in g th e national
sovereignty and. the m unicipal law o f the s ta te s o f which the
p e rp e tra to rs a re subjects and where the crimes had been committed.
I t must, however, be pointed out a t once th a t th is p rin c ip le
i s considerably r e s tr ic te d by the sp e c ific q u a lific a tio n la id down
by the provision, as amended by the B e rlin P rotocol, namely, th a t in
order to c o n stitu te crimes ag ain st humanity which c a ll fo r
in te rn a tio n a l penal sanction and which are o f sp e c ia l concern to the
in te rn a tio n a l community, the inhumane a c ts s p e c ific a lly enumerated
in A rtic le 6 (c) must be committed in "execution of or in connection
w ith any crime w ithin the J u ris d ic tio n of the T rib u n al", i . e , only
i f i t is e sta b lish e d th a t they were connected w ith a crime against
peace or a war crime proper. This q u a lific a tio n c o n stitu te s a very
im portant r e s tr ic tio n of the scope of the concept o f crimes against
humanity, which thus under the C harter, have no independent sta tu s,
w ith a fu rth e r consequence th a t th e ir g re a te s t p r a c tic a l importance
in peace time is serio u sly affected .* *
The Second p rin c ip le expressed by the words "against any
c iv ilia n population" i s th a t any c i . i l i a n population i s under the
p ro te c tio n o f in te rn a tio n a l crim inal law and th a t the n a tio n a lity
of the victim s a ffe cted is irre le v a n t. I t seems a lso to imply th a t
such p ro te c tio n is also extended to cases where the alleg ed violations
of human rig h ts have been p erp etrated by a S ta te a g a in st i t s own
su b jects. The term, th e re fo re , includes crimes both a g a in s t a llie d and
ag ain st enemy n a tio n a ls.

* Reference is made here to the Nrnberg and Tokyo T ribunals.

** The p o sitio n under law No. 10 of the Control Council of Germany
i s d iff e r e n t.
/in p a rtic u la r.
 e / ch .it-A* 19
Page 35

In particular, I t follows that a civilian population remains

under the protection of the provisions regarding crimes against
humanity irrespective of whether i t is (a) the population of a
territory which is under a belligerent occupation effected with or
vithout resorting to war (e.g . Austria and parts of Czechoslovakia
in 1938 and 1939) or (b) the population of other States not under
occupation, in which armed forces of one belligerent were stationed
(e.g, German forces in Ita ly ), or of countries adjacent to a given
belligerent (e.g . persons who were subjected to kidnapping or other
violence); or (o) the population of a belligerent its e lf (e.g. German
or Italian nationals of the samo or different race in their
relation to the respective State authorities or other national
bodies).
From the words "civ ilia n population" i t appears th a t the te rn
"crimes ag ain st humanity" is r e s tr ic te d to inhumane a cts committed
against c iv ilia n populations as d is tin c t from members of the aimed
forces, which are outside the scope of the provision.
The word "po p u latio n " appears to in d ic a te th a t a la rg e r body of
victims is v isu alize d and th a t sin g le o r is o la te d a c ts committed
against ind iv id u als may be held to f a l l outside the scope of the
concept o f orlmes ag ain st humanity.
A v io la tio n o f a c e rta in human rig h t p ro tected by A rtic le 6 (c)
may o r may not sim ultaneously c o n stitu te a v io la tio n of th e laws and
customs o f war and th erefo re a war crime sensu s tr ic to , coning vinder
A rticle 6 (b ). This r e s u lts from the f a c t th a t the terms "crimes
against humanity" and "war crimes" as has already been in d icated
overlap to a c e rta in e x te n t. We s h a ll see l a t e r in more d e ta il
how th is p a rtic u la r problem has been d e a lt w ith by the Prosecution
in the Indictm ent and by the Tribunal in i t s Judgment. Here, i t
w ill bo s u ffic ie n t to point out the follow ing.
The provision dealing w ith war crimes (A rticle 6 (b)) expreeely
states th a t i t s enumeration o f sp e c ific crim inal a c ts i s not exhaustive.
Ho euch statem ent i s to be found in a r t i c l e 6 ( c ) . The wide scope
of the term "other inhumane a c ts" in d ic a te s, however, th a t the
enumeration in A rtic le 6 (c) i s a lso no t exhaustive, a t le a s t so f a r
as the substance i s concerned.
There are two types o f crimes ag ain st humanity: crimes o f the
murder-type", namely, murder, exterm ination, enslavement,
deportation, and o th e r inhumane a c ts ; and "persecutions". With
regard to the l a t t e r the provision req u ires th a t they must have been
/committed
E/cN.if/v;.i9
Pago 36

committed on p o litic a l, r a c ia l or re lig io u s grounds.

The a c ts o f the "murder-type" enumerated in A rtic le 6 (c) as
crimes ag ain st humanity are sim ila r to , h u t not id e n tic a l w ith,
those which are mentioned as war crimes in A rtic le 6 (b ).
Murder i s included both in the l i s t contained in A rtic le 6 (b)
and ( c ) . Exterm ination, mentioned only in A rtic le 6 (c) i s apparently
to be in te rp re te d as murder on a large scale (mass m urder). The
in clu sio n of "exterm ination" in ad d itio n to "murder" may be taken to
in d ic a te th a t talcing p a rt in framing a p o licy o f exterm ination and/or
other a c ti v itie s in i t s implementation not d ire c tly connected with
a c tu a l crim inal a c ts of murder, may be punishable as com plicity
in the crime o f exterm ination.
Whether th ere i s a difference between "deportation to slave
labour or fo r other purposes" as mentioned under (b ), and the two
separate items "enslavement" and "deportation" mentioned under (c)
is d if f ic u l t to decide a t th is stag e . " Ill-tre a tm e n t" which is
contained in sub-paragraph (b ), has been om itted in sub-paragraph (c).
Whether or not th is p a rtic u la r crime f a l l s under "other inhumane acts"
depends on the general in te rp re ta tio n of the l a t t e r expression.
F in a lly , the th ir d p rin c ip le th a t i t i s irre le v a n t whether an
offence alleged to be a crime a g ain st humanity was o r was not
committed in v io la tio n of the domestic law o f the country where
i t was perp etrated , means th a t i t is no defence th a t the a ct
alleg ed to be a crime ag ain st humanity was le g a l under the domestic
law of th a t country. The exclusion of th is p lea i s clo se ly
connected w ith the provisions of A rtic le 8 of the C harter regarding
the defence of superior o rd ers.
Vie come now to the question of the at t itu d e of the Tribunal
to the law re la tin g to crimes ag ain st humanity.
As already in d icated , the Tribunal s ta te d t h a t i t i s bound by
the Charter in the d e fin itio n which i t gives o f crimes ag ain st
humanity.# The general considerations of the Tribunal on the
law as to crimes ag ain st humanity are contained in the following
statem ent:
"With regard to crimes ag ain st humanity, there is no
doubt whatever th a t p o litic a l opponents were murdered in
Germany before the war, and th a t many of them were kept in
concentration camps in circumstances of g re a t horror and

* The Judgment, p. 6h.

/c ru e lty .
 e / cn. v/ w.19
Page 37

c ru e lty . The policy of te ri'o r was c e rta in ly c arrie d out on a

v a st sca le , and in many cases was organized and system atic.
The policy of persecution, rep ressio n and murder of c iv ilia n s
in Germany, before the war of 1939 who were lik e ly to be
h o s tile to the Government, was most ru th le s s ly c a rrie d o u t.
The persecution o f Jews during the same period is
e sta b lish e d beyond a l l doubt. To c o n stitu te crimes
ag ain st humanity, the a c ts re lie d on before the outbreak
o f war must have been in execution o f, o r in connection with,
any crime w ithin the ju ris d ic tio n of the T ribunal. The Tribunal
i s of the opinion th a t rev o ltin g and h o rrib le as many of these
crimes were, I t has not been s a tis f a c to r ily proved th a t they
were done in execution o f, or in connection w ith, any such
crim e. The Tribunal therefo re cannot make a general
d e cla ra tio n th a t the acts before 1939 were crimes ag ain st
humanity w ithin the meaning of the C harter, but from the
beginning of the war in 1939 war crimes were committed on a
v a st sca le , which were also crimes ag ain st humanity; and
in so fa r as the inhumane a c ts charged in the Indictm ent,
and committed a f te r the beginning of the war, did not
c o n stitu te war crimes, they were a l l committed in execution
o f o r in connection with, the aggressive war, and th erefo re
c o n stitu te d crimes against humanity."*
From the above statem ent i t follows th a t the Nrnberg Tribunal
proceeded on the b a sis of the B erlin Protocol and applied the
q u a lific a tio n "in execution of or in connection w ith any crime
within the J u ris d ic tio n o f the Tribunal" tc th e whole provision,
i . e . both to crimes of the murder type and to p ersecu tio n s, with
the consequences already in d icated a t the o u ts e t o f th is sectio n .
As w ill be seen in a separate p a rt o f th e Report, th is statem ent
does not imply th a t no crime committed before 1 s t September, 1939
can be considered as a crime ag ain st humanity. Some crimes committed
prior to 1 s t September, 1939> have been recognized by the Tribunal
as c o n stitu tin g crimes against humanity, i . e . in cases where th e ir
connection with the crime against peace was e sta b lish e d .
On the other hand, in cases where the inhumane a c ts charged in
the Indictment were committed a f te r the beginning of the war and did
not c o n stitu te war crimes, th e ir connection w ith the war was presumed

# The Judgment, p. 65.

/by the Tribunal
l/CK.U/W.19
Page 38

by the T ribunal, and they were th erefo re considered as crimes against

humanity.
Although in theory i t remains irre le v a n t whether a crime against
humanity m s committed before or during the war, in p ra c tice i t is
d i f f ic u l t to e sta b lis h a connection between what is alleg ed to be a
crime ag ain st humanity, and a crime w ith in the ju ris d ic tio n o f the
Tribunal, i f the a c t was committed before the war.
(c) Crimes ag ain st peace
I t has already been pointed out th a t th is p a r tic u la r type of
crime, as such, is outside the scope o f the R eport. However, crimes
ag ain st peace have some d e fin ite bearing upon v io la tio n s of human
rig h ts , and fo r th is reason i t seems necessary to record here the
views of the Tribunal on th is p o in t.
lhe dealing with the question of "the common plan or conspiracy
and the aggressive war", the Tribunal declared:
"The charges in the Indictm ent th a t the defendants
planned and waged aggressive wars are charges of the utmost
g ra v ity . War is e s s e n tia lly an e v il th in g . I t s consequences
are not confined to the b e llig e re n t s ta te s alone, b u t a ffe c t
the whole world.
"To i n i t i a t e a war o f aggression, th e re fo re , is not
only an in te rn a tio n a l crime; i t i s the supreme in te rn a tio n a l
crime d iffe rin g only from o th er war crimes in th a t i t contains
w ithin i t s e l f the accumulated e v il of the whole.
"The f i r s t a c ts of aggression re fe rre d to in the
Indictm ent are the seizure o f A ustria and Czechoslovakia
and the f i r s t war o f aggression charged in the Indictm ent
i s the war ag ain st Poland begun on the 1 s t September, 1939*"*
L ater in the Judgment the Tribunal accepted the contention of
the Prosecution as to the aggressive ch aracter o f the seizure of
A ustria and Czechoslovakia,** and made the following statem ent in
regard to the war ag ain st Poland:
"The Tribunal is fu lly s a tis f ie d by the evidence th a t the
war in itia te d by Germany ag ain st Poland on the 1 s t September, 1939,
was most p la in ly an aggressive war, which was to develop in due
course in to a war which embraced almost the whole world, and
re s u lte d in the ccmmlssion of countless crimes, both ag ain st the
laws and customs of war, and ag ain st humanity."***

* The Judgment, p. I 3.
** I b id ., pp. 19-22.
*** I b id ., p. 27,
/ i t w ill
 E/CH.lf/w.19
Page 39

I t w ill be observed th a t in making* th e above statm ents the

Tribunal touched upon the general e ffe c t which the waging o f a
war of aggression has on v io la tio n s of human r ig h ts . Taking
in te r a l i a these consequences in to account, the Tribunal thought
i t J u s tifia b le and of primary importance to declare the in itia tio n
and waging of wars of aggression as a supreme war crime. This
should be construed as meaning a supreme war crime in a wider sense
thereby c o n stitu tin g also in a general non-technical sense a
supreme crime ag ain st humanity.
The question of v io la tio n s of human rig h ts p erp etrated as p a rt
of the planning, preparation or conspiracy to wage wars of
aggression w ill be presented in a separate p a rt of the Report.*
(d) Conspiracy to commit war crimes and crimes ag ain st humanity
I t remains to say a few words on the question of conspiracy,
i .e . the doctrine under which i t is a crim inal offence to conspire
or to take p a rt in an a llia n c e to achieve an unlairful o b ject, or
to achieve a law ful object by unlawful means. The C harter in i t s
A rticle 6 (a) provides th a t "conspiracy" to commit crimes against
peace is punishable, but contains no such express provision in
regard to a "conspiracy" to commit war crimes o r crimes ag ain st
humanity.
Consequently, the In te rn a tio n a l M ilita ry Tribunal in i t s
Judgment allowed only a very lim ited scope to th is doctrine and held
that, under the C harter, a conspiracy to commit crimes ag ain st peace
is punishable, and i t convicted some of the defendants on th a t b a sis;
but i t declined to punish conspiracies of the o th er two types as
substantive offences, d is tin c t from any war crime or crime ag ain st
humanity, and expressed the opinion th a t the provisions contained in
the l a s t paragraph o f A rtic le 6 does not d efin e, o r add as a new and
separate crime, any conspiracy except the one to commit a c ts of
aggressive war. In the opinion of the Tribunal the above provision
is only designed to e sta b lis h the re s p o n s ib ility o f persons
p articip atin g in a common plan, and fo r these reasons the Tribunal
decided to disregard the charges of conspiracy to commit war crimes
and crimes a g ain st humanity,**

* See P art I I , Chapter I .

** The Judgment, p. Mi-.

In
e /CN.U/w. 19
Page 40

n ; . juHJSDiWttraira-Bfisons
(From A rtic le 6 ) "Leaders, organizers, in s tig a to rs ,
and accomplices p a rtic ip a tin g in the form ulation or
execution of a common plan or conspiracy to commit any
of the foregoing crimes are responsible fo r a l l acts
performed by any persons in execution of such p la n ."
(A rtic le 7) "The o f f ic ia l p o sitio n of the defendants,
whether as Heads of S tate or responsible o f f ic ia ls in
Government Departments, s h a ll not be considered as freein g
them from re s p o n s ib ility or m itig atin g punishment."
(A rtic le 8) "The fa c t th a t the Defendant acted pursuant to
order of h is Government or of a superior s h a ll not free
him from re s p o n s ib ility , bu t may be considered in m itig atio n
of punishment i f the Tribunal determines th a t Ju stic e so
re q u ire s ."
(From A rtic le 9) "At the t r i a l of any in d iv id u al member of
any group or oganization the Tribunal may declare (in connection
w ith any a c t o f which the in d iv id u al may be convietod) th a t the
group or organization of which the in d iv id u al was a member
was a crim inal o rg an izatio n ."
(A rtic le 10) "In cases where a group o r organization is
declared crim inal by the Tribunal, the competent n a tio n a l
a u th o rity of any Signatory s h a ll have the rig h t to bring
ind iv id u als to t r i a l fo r membership th e re in before n a tio n a l,
m ilita ry or occupation c o u rts. In any such case the
crim inal nature of the group or organization is considered
proved and s h a ll not be questioned."
As already s ta te d the Nrnberg Tribunal was invested by the
Charter w ith power to tr y and punish persons who, acting in the
in te re s ts of the European Axis co u n tries, whether as in d iv id u als or
as members of organizations, committed any of the crimes
enumerated in A rtic le 6 under (a), ( t , and (c ).
In accordance with the purpose fo r which the Tribunal was
e stab lish ed the scope of the in d iv id u als over which the Tribunal
had to exercise i t s J u ris d ic tio n was lim ited to the major war
c rim in a ls. This is evident from A rtic le s 1 and 6 of the C harter,
which, however, do not contain any d e fin itio n or explanation as to
who should be regarded as a major war crim in al. The only indication
in th is resp ect Is provided by the Moscow D eclaration o f the
30th October, 19^3, according to which major war crim inals are
those whose offences have no " p a rtic u la r geographical lo c atio n ".
/Exactly
 e /CN.U/W.19
Page Ul

Exactly the same d escrip tio n is used in paragraph 3 of the Preamble

and in A rtic le 1 of the London Agreement of 8th August, 19^5, which
have thus l e f t open to the d isc re tio n of the signatory Powers the
question which persons should be included in th is category o f war
crim inals. In the Indictment lodged with the Tribunal* a to t a l
of 2k persons were charged a t Nrnberg, who, in accordance
with A rtic le ll)- (b) of the Charter had been designated as major
war crim inals** by the Committee of the Chief Prosecutors of the
Signatory Powers.
The opening sentence of paragraph 2 o f A rtic le 6 lays down
the ru le th a t fo r a c ts enumerated in th a t a r tic le as c o n stitu tin g
crimes a g ain st peace, war crimes and crimes ag ain st humanity, there
sh all be Individual re s p o n s ib ility .
On th is question the Defence submitted th a t In te rn a tio n a l Law
is concerned w ith the actions of sovereign s ta te s , and provides no
punishment fo r indiv id u als; and fu rth e r, th a t where the a c t in
question is an a c t of s ta te , those who carry i t out are not
personally responsible, but are p ro tected by the doctrine o f the
sovereignty o f the S ta te . Both there submissions were re je c te d by the
Tribunal* which expressed the opinion th a t the p rin c ip le th a t In te rn a tio n a l
Law imposes dut l s and l i a b i l i t i e s upon in d iv id u als as w ell as upon
States has long been recognized. In th is connection the Tribunal
recalled in i t s Judgment the rccont case o f Ex Parte Q uirin (19*t
317 US I ) , before the Supreme Court o f the United S ta te s, in which
persons were charged, during the war, w ith landing in the United S tates
for purposes o f spying and sabotage. In th is case the la te
Chief J u stic e Stone, speaking fo r the Court, said th a t from the

* Indictment p resen ted t o th e In te rn a tional Mil i t a r y Tribuna l

s i t t i n g a t E e rlin on T8th October. 5^5, o tc . H.M.S.C". mJTT 6696 .
(herein a f te r c ite d as Indictm ent)
** The names of the 2k defendants are as follow s:
Herman Wilhelm GORING, Rudolf HESS, Joachim von RIBBENTROP,
Robert LEY, Wilhelm KEITEL, Erase KALTENBRUNNER, A lfred ROSENBERG,
Hans FRANK, Wilhelm FRICK, J u liu s STREICHER, Walter FUNK.
HJalmar SCHACHT, Gustav KRUPP von BOHLEN und HALBACH, Karl ENITZ,
Erich RAELER, Baldur von SCHIRACH, F r itz 3AUCKEL, A lfred JODL,
Martin BORMANN, Franz von PAREN, A rtur SEYSS-INQUART, A lbert SPEER,
Constantin von NEURATH and Hans FRITZSCEE.
All individual defendants named in the Indictm ent appeared before
the Tribunal except: Robert LEY, who committed suicide 25 October 19^5;
Gustav KRUPP von Bohlen und Halbach, owing to serious illn e s s ; and
Martin BORMANN, who was not in custody and whom the Tribunal
decided to tr y in ab sen tia.
In the l a t t e r case the Tribunal ev id en tly found i t necessary, in the
in te re s ts of J u stic e , to conduct the hearing in h is absence, thus
availing i t s e l f of the rig h t accorded to i t by A rtic le 12 of the
C harter. /
/very .beginning
. .
E/CN.Vw*19
Page te

very beginning of i t s h is to ry th a t Court has applied the law of war as

including th a t p a rt o f the law o f nations which p rescrib es fo r the conduct
of war, the s ta tu s , rig h ts and d u ties o f enemy nations as w ell as enemy
in d iv id u a ls. Chief J u stic e Stone went on to give a l i s t o f cases trie d
by th e Courts, where individual offenders were charged w ith offences
against the laws of n a tio n s, and p a rtic u la rly the laws o f war. Many other
a u th o ritie s on th is m atter could have been c ite d , bu t the Tribunal was
s a tis f ie d th a t there is s u ffic ie n t evidenoe to show th a t individuals can be
punished fo r v io la tio n s of In te rn a tio n a l Law. A fter re c a llin g the
provisions o f A rtic le 228 of the Treaty of V e rsa ille s as illu s tr a tin g and
enforcing the view of in d iv id u al re s p o n s ib ility , the Tribunal concluded
w ith the argument th a t "crimes ag ain st in te rn a tional law are committed
by men, not by a b stra c t e n titie s , and only by punishing individuals who
commit such crimes can the provisions o f in te rn a tio n a l law be enforced,"*
The scope of individuals lia b le to prosecution is fu rth e r determined
by th e l a s t paragraph of A rtic le 6 o f the C harter, which provides th a t
le ad e rs, organizers, in s tig a to rs and accomplices, p a rtic ip a tin g in the
form ulation or execution of a common plan or conspiracy to commit any of
the crimes enumerated in th a t A rtic le under (a ), (b) and (c) are responsible
fo r a l l acts performed by any persons in execution o f Buch p lan . From
th is p ro vision, which s tip u la te s the v icario u s l i a b i l i t y of le ad e rs,
organizers, e t c ,, i t appears th a t they are a lso responsible fo r acts
committed by th ir d persons. Nothing i s said in th is provision about the
re s p o n s ib ility of th e a c tu a l p e rp e tra to rs , b u t i t seems to be implied that
they a lso are crim inally resp o n sib le, though th e Charter i t s e l f , in general,
and th is p ro vision, in p a rtic u la r, deals only w ith persons responsible on
a high le v e l. This i s borne out by the Control Council Law No. 10, which
was promulgated to give e f f e c t, in te r a l i a , to th e London Agreement of
8 August 19^5.
There is a lso nothing said in the Charter as tc what degree of
connection w ith a crime must be esta b lish e d in order to a ttrib u te to a
defendant, Ju d ic ia l g u ilt, in oth er words what degree of re sp o n sib ility
a ttach es to p rin c ip a ls , accessories and accomplices. Nor does the Charter
say anything on the very important question o f attem pts to commit war crimes
and crimes against humanity, namely, whether or not an attem pt to commit an
in te rn a tio n a l crime coming w ith in the notion o f those crimes is in its e lf
a crime.** A ll these questions, in respect o f which the In te rn a tio n a l Penal
Law is i t s e lf most tin se ttle d , have been l e f t open by the C harter,
* The Judgment, page Ul.
** The p o sitio n in regard to crimes ag ain st peace is d iffe re n t as the
"planning or preparation" o f an aggressive war is tre a te d as a crime
in i t s e l f (A rticle 6 (a) o f the C h arter).
/In one
 e / cnA / w,19
Page U3

In one respect only has th e degree of Individual re s p o n s ib ility

fo r the crimes coming w ithin the J u ris d ic tio n o f the Tribunal been
defined by the Charter in A rtic le 7> which s ta te s th a t the
o f f ic ia l p o sitio n o f the defendants, whether as Heads o f S ta te or
responsible o f f ic ia ls in Government Departments, s h a ll not be
considerd as fre e in g them from re s p o n s ib ility or m itig atin g
punishment
On th is p a rtic u la r question, and in fu rth e r elaboration of i t s
argument en to individual re s p o n s ib ility , the Tribunal expressed the
view th a t the p rin c ip le o f In te rn a tio n a l Law, which under c e rta in
circumstances p ro tects the re p resen tativ es of a s ta te , cannot be
applied to acts which are condemned as crim inal by In te rn a tio n a l
Law, and th a t the authors of such acts cannot s h e lte r themselves
behind th e ir o f f ic ia l p o sitio n in order to be freed from punishment
in appropriate proceedings. As the very essence of the Charter
is th a t individuals in general, and the rep resen tativ es of a s ta te
in p a rtic u la r "have in te rn a tio n a l d u ties which transcend the n a tio n al
obligations of obedience imposed by th e in d iv id u al S ta te " , the
Tribunal took the view th a t he who v io la te s the laws of war cannot
obtain immunity while a ctin g in pursuance o f the a u th o rity o f the
S tate i f the S ta te in authorizin g actio n moves outside i t
competence under In te rn a tio n a l Law.*
I t may be o f in te r e s t in th is connection to quote some remarks
made by Lord Wright in commenting on th is p a rtic u la r subject:
"The Judgment accordingly i s proceeding on the b a sis
o f the Community o f Nations and on the nature o f In te rn a tio n a l
law aB the law not of one n atio n bu t o f a l l , which transcends the
law of the p a rtic u la r in d iv id u al, and the obedience which he
owes to h is s ta t e . The fa c t th a t the individual is obeying the
n a tio n a l law is no defence i f he is charged before the competent
Court fo r v io la tio n of in te rn a tio n a l law. He is thus subject to
a double s e t of laws which in c e rta in cases may c o n f lic t. He has
a divided duty. There is nothing p e cu liar or unusual in t h i s .
In every Federal s ta te the c itiz e n owes obedience to the Federal
Law and a lso to the S ta te or P ro v in cial law, and may he
punished i f he v io la te s e ith e r by the appropriate a u th o rity .
Federal c o n stitu tio n s generally provide fo r the dominance of
one system of law over th e other i f they c o n flic t, but
generally the areas of each are s u ffic ie n tly d is tin c t.
The Judgment, page
/A B ritis h
E/CH.tyW.19
Page M*

A B ritis h s o ld ie r remains subject to h is country's laws though he

is a lso subject to M ilita ry Law as being a s o lid e r. In the
in te rn a tio n a l penal code a man may be held g u ilty of v io la tin g the
code though what he does i s J u s tifie d under the N ational Law. The
p rin c ip le th ere is sim ilar to what i s often re fe rre d to as the
defence of superio r orders."*
According to the e stab lish ed p rin c ip le s of In te rn a tio n a l Law, the
fa c t th a t ru le s o f w arfare have been v io la te d in pursuance c f orders of
the b e llig e re n t Government or of an in d iv id u al b e llig e re n t commander
does not deprive the act in question of i t s ch aracter as a war crime;
n e ith e r does i t , in p rin c ip le confer upon the p e rp e tra to r immunity from
punishment by the injured b e llig e re n t. This view is governed by the
major p rin c ip le th a t members of the armed forces or other a u th o ritie s
are bound to obey law ful orders only, and th a t they cannot therefore
escape l i a b i l i t y i f , in obedience to a command, they commit a cts which
both v io la te unchallenged ru le s o f warfare and outrage the general
p rin c ip le s of humanity.#*
Accordingly, A rtic le 8 of the C harter lays down the ru le th a t the
fa c t th a t the dfendent acted pursuant to order of h is Government or of
a superior s h a ll not fre e him from re s p o n s ib ility , bu t may be considered
in m itig a tio n o f punishment i f the Tribunal determines th a t Ju stice so
re q u ire s . I t may be pointed out th a t th is ru le ap p lies to a l l acts
coming w ithin th e notio:is of crimes ag ain st peace, war crimes and crimes
ag ain st humanity.
On b e h alf of most of the defendants i t was submitted th a t in doing
what they did they were a ctin g under the orders o f H itle r, and therefore
could not be held responsible fo r the a cts committed'by them in carrying
out these o rders. When dealing with th is submission the Tribunal stated
th a t i t considered the provisions of A rtic le 8 to be in conformity with
the law of a l l n atio n s. The Tribunal added th a t the tru e t e s t , which
is found in varying degrees in the crim inal law of most n atio n s, i 3 not
th e existance of the order, bu t whether moral choioe was in fa c t
possible.***

* See Lord W right's a r tic le on 'Nrnberg" . re c en tly w ritten for

"Obiter D icta", Canadian Lew Journal.
** See L. Oppenheim, 1. c i t .
*** The Judgment, page U2.

/F in a lly , the?*
 E/CK.Vw. 19
Pago f5

F in a lly , there remains the question of groups and organizations of

which the indiv id u al defendants were members.
A rtic le 9 of the Charter provided th a t a t the t r i a l of any
individual member of any group or organization the Tribunal may declare
that the group of organization of which the in d iv id u al was a member was
a crim inal organization. Such a d e claratio n might have been made by
the Tribunal in connection w ith any a ct of which an in d iv id u al defendant
may have been convicted.
According to A rticle 10 of the C harter, in cases where a group
or organization is declared crim inal by the T ribunal, th e competent
national a u th o rity of any Signatory has the rig h t to b rin g individuals
to t r i a l fo r membership of such bodies before n a tio n a l, m ilita ry o r
occupation c o u rts. In any such caso the crim inal nature o f the group
or organization is to be considerod as proved and s h a ll not be
questioned.
The above provision makes i t c le a r th a t th e d e cla ra tio n of
crim inality against an accused organization is f in a l, and cannot be
challenged in any subsequent crim inal proceeding ag ain st in d iv id u al
members. The e ffe c t of such a d e claratio n is w ell illu s tr a te d by
Law No. 10 of the Control Council of Germany, vfcich provides th a t a
member of such an organization may be punished fo r the crime of
membership even by death.
As regards the general a ttitu d e of the Tribunal in th is re sp ec t, i t
should be mentioned th a t the Tribunal considered these provisions as a
far-reaching and novel procedure, th e a p p licatio n of which, unless
properly safeguarded, might produce great in ju s tic e .* The question how
the law of the C.iarter was applied by the Tribunal to the organizations
alleged by the Indictment to be crim inal would, however, require
special a tte n tio n .

C. VIOLATIONS OF TEE EIGHTS OF THE

VICTIMS OF WAR CRIMES
Introductory
In the preceding Section i t has been pointed out th a t, without
exception, a l l the crimes s p e c ific e i ly enumerated in A rtic le 6 of the
Charter as war crimes and crimes against humanity, are crimes which
constitute v io la tio n s of the in te g rity or the physical w ell-being of

* The Judgment, page 66.

/in d iv id u als or
E/CN.Vw.19
Page t

in d ividuals or groups of people, or o f p roperty, thus v io la tin g inherent

human r ig h ts . I t has also been emphasized th a t these v io la tio n s are not
the only ones which th e authors o f th e Charter had in mind and w ith which
the Tribunal was expected to be concerned in the T ria l.
For th is reason, and also because the Tribunal, in laying down what
inhumane acts had been committed, re fe rre d in i t s Jugdment d ire c tly to
th e Indictm ent,* i t is necessary to examine th is document more closely
since i t throws considerable lig h t on the way in which A rtic le 6 (a) and (b)
o f the C harter waa in te rp re te d by the Prosecution. Taking in to account
the purpose fo r which the p resent c o lle c tio n of m a terial i s intended, and
th e fa c t th a t i t could not d eal In d iscrim in ately w ith a l l common crimes
and outrages such as murder, ill-tre a tm e n t and th e lik e , committed against
innocent people and w ithout any J u s tif ic a tio n o r n e c e ssity , i t is
proposed to lim it th is in v e stig a tio n to p o in ts and problems o f p a rtic u la r
in te r e s t to the question of in su ffic ie n cy o f, or lacunae in , the existing
laws and usages of war and in other provisions of in te rn a tio n a l low
which purport to affo rd p ro te c tio n ag ain st v io la tio n s o f human rig h ts .
However, in order to give a comprehensive p ic tu re o f the human rig h ts that
have been v io la te d during the war, I t Is proposed to review g en erally , at
the same tim e, the various crimes or groups of crimes as they were
presented in the Indictm ent, and to in d icate the reactio n s of the Tribunal
in regard to them.
In i t s Jtidgment, the Tribunal sta te d th a t th e evidence re la tin g
to war crimes end primes ag ain st humanity had been so overwhelming, both
as regards volume and d e ta i l, as to render i t impossible fo r the Judgment
adequately to review i t , or to record the mass of documentary and oral
evidence th a t hac been presented. Accordingly, the Tribunal d e a lt only
q u ite generally w ith these crimes** and did not follow the order of
charges or the grouping of crimes as presented in the Indictm ent. The
following survey i 3 based on th a t p a rt of the Judgment which deals with
war crimes and crimes against humanity g en erally , without taking into
account the findings of the Tribunal in re la tio n to the in dividual
defendants.
For the reasons sta te d in the preceding paragraphs, and also because
i t was found te c h n ic a lly impossible to examine the voluminous tran scrip ts
of the proceedings, th is survey is intended to serve merely as an
in troduction to the su b jec t.

* The Judgment, page 65.

** The Judgment, pages UU and ^5
/i. General Observation
 E/CN.Vw.19
Page U7

I. General Observations
Under Count Throe of the Indictm ent,* In a statem ent of a general
nature, the defendants were charged w ith war crimes in the tr a d itio n a l
sense o f th is term , i . e . w ith v io la tio n s of the laws and customs of
war, committed between 1 September 1939 > and 8 May 19U5, in Germany and
in a l l those countries and t e r r i t o r i e s occupied by the German armed
forces since 1 September 1939 In a d d itio n , they were charged with
such crimes committed during the period sta te d above in A u stria,
Czechoslovakia, I t a l y , and on the High Seas. The Indictment sta te d th a t
a ll the defendants, "acting in concert with o th e rs, formulated and
executed a common plan or conspiracy to commit war crimes as defined in
A rticle 6 (b) of the Charter . . . . The said war crimes were committed by
the defendants and by other persons fo r whose a cts th e defendants are
responsible . . . . as such other persons when committing the said war
crimes performed th e ir acts in execution of a common plan and conspiracy
to commit the said war c rim e s...." * *
The p a rtic u la r crimes p referred in the Indictment re su lt d from the
practice of " to ta l war" as regards methods of combat and m ilita ry
occupation applied in d ire c t c o n flic t with th e laws and customs of war,
and p erpetrated in v io la tio n o f the r ig h ts of combatants, o f prisoners
of war, and of the c iv ilia n population of occupied t e r r i t o r i e s . The
Indictment sta te d th a t these methods and crimes c o n stitu te d v io la tio n s
of in te rn a tio n a l conventions, of in te rn a l penal laws and o f th e general
principles o f crim inal law as derived from the crim inal law of a l l
civ ilized n atio n s, and were involved in , and p a rt o f, a system atic course
of conduct.
The apparently crim inal character of the conception and p ra c tic e of
"to tal war", as waged by Nazi Germany, was described by th e Tribunal in
the following statem ent: "For in th is conception of 't o t a l w a r', the
moral ideas underlying the conventions which seek to make war more humane
are no longer regarded as having force or v a lid ity . Everything is made
subordinate to the overmastering d ic ta te s o f war. Buies, re g u la tio n s,
assurances and tr e a tie s a l l a lik e are o f no moment; and so, freed from
the re s tra in in g influence o f in te rn a tio n a l law, the aggressive war is
conducted by the Nazi leaders in the most barbarous way. Accordingly, war
crimes were committed when and wherever the Fhrer and h is close
associates thought them to be advantageous. They were fo r the most p a rt

* The Indictment presented to the In te rn a tio n a l M ilitary Tribunal on

18 October 19^5
** The Indictm ent, page I 3.
/th e re s u lt
E/CN.4/ w.19
Page 48

tb s r e s u l t o f co ld and c rim in a l c a lc u la tio n " .*

The id e a s o f Nazi Germany, which were c o n tra ry to th e e sta b lis h e d
p r in c ip le s o f e l l c i v i l i z e d n a tio n s , sprang d i r e c t l y from what one o f the
p ro se c u to rs c a lle d a crime a g a in e t th e s p i r i t , meaning th e re b y a doctrine
v h ic h , "denying a l l s p i r i t u a l , r a t i o n a l and m oral v a lu es by which the
n a tio n s have t r i o d , f o r thousands o f y e a r, to improve human c o n d itio n s,
aims to plungo humanity back in to b arb arism , no lo n g e r th e n a tu r a l and
spontaneous barbarism o f p rim itiv e n a tio n s , b u t a d ia b o lic a l barbarism ,
conscious o f i t s e l f and u t i l i z i n g f o r i t s ends a l l m a te r ia l means put
a t th e d is p o s a l o f mankind b y contem porary scien ce"* *
I n a statem en t o f a summary n a tu re , th e T rib u n al s a id th e follow ing:
"P riso n e rs o f war were i l l - t r e a t e d and to r tu r e d and m urdered, n o t only
i n d efian ce o f th e w e ll-e s ta b lis h e d r u le s o f in te r n a tio n a l law, b u t in
complete d is re g a rd o f th e elem entary d ic ta te s o f hum anity. C iv ilia n
p o p u la tio n s in occupied t e r r i t o r i e s s u ffe re d th e same f a t e . Whole
p o p u la tio n s were deported to Germany f o r th e purposes o f sla v e labour
upon defence works, armament p ro d u ctio n and s im ila r ta s k s connected with
th e war e f f o r t . Hostages vero ta k en in v ery la rg e numbers from the civ ilian
p o p u la tio n s in a l l th e occupied c o u n trie s , and were sh o t as s u ite d the
Gorman p u rp o se s. P u b lic and p riv a te p ro p e rty was s y s te m a tic a lly plundered
and p illa g e d in o td e r to e n larg e th e re so u rc e s o f Germany a t th e expense
o f th e r e s t o f Europe. C itie s and towns and v illa g e s were w antonly
d e stro y ed w ith o u t m i l i t a r y j u s t i f i c a t i o n o r n e c e s sity " .* * *
With re fe re n c e to tho plan n in g o f th e se v io la tio n s , th e T rib u n al
found t h a t on some o c c a sio n s, war crim es were d e lib e r a te ly planned long
i n advance. This was th e c a se , f o r in s ta n c e , in th e ill- t r e a t m e n t of
c i v i l i a n s and th e p lu n d er o f th e S o v ie t t e r r i t o r i e s , which were s e ttle d
i n m inute d e t a i l oeforo th e a c tu a l a tta c k began. S im ila rly , th e
e x p lo ita tio n o f th e in h a b ita n ts f o r slav e la b o u r was planned and organized
t o th e l a s t d e t a i l . I n o th e r c a s e s , such as th e murder o f p ris o n e rs of
w ar, o f Commandos and cap tu red airm en, such crim es were th e r e s u l t of
d i r e c t o rd e rs is s u e d on th o h ig h e s t le v e l .
We w i l l now examine th e v a rio u s ty p es o f v io la tio n s o f th e rig h ts
o f porsons and groups o f people i n th e l i g h t o f th e In d ic tm e n t, the
Judgment, and th e e x is tin g p ro v isio n s o f I n te r n a tio n a l Lav.

* The Judgment, page 44

** See: Opening Speech by M. F ran o is de Menthon, p u b lish ed in "Tho
T r i a l o f Gorman Major War Crimin a ls " , Opening Speeches o f the Chief
P ro se c u to rs, H.M. S ta tio n e ry O ffic e , London, 1946, page 93.
*** Tho Judgment, page 45.
/ll. Murder and
 E/C.U./W .19
Page 49

I I . Murder ar.d ill-tre a tm e n t of c iv ilia n s

I t is sta te d in the Indictment th a t throughout th e period of the
occupation of t e r r it o r ie s overrun by th e ir armed forces the defendants,
for the purpose of system atically te rro riz in g the in h a b ita n ts, murdered
and to rtu re d c iv ilia n s , ill - t r e a t e d them and imprisoned them without
legal pro cess. These murders and ill-tre a tm e n t wore carried out by
divers means and methods which are f u lly s e t fo rth in the charge.
In respect of these a tr o c itie s th e Indictment says th a t they were
contrary to In te rn a tio n a l Conventions, in p a rtic u la r to A rtic le 46 of
the Hague R egulations, 1907, to the law3 and customs of war, to the
general p rin c ip le s of crim inal law as derived from the crim inal laws of
a ll c iv iliz e d n atio n s, to the in te rn a l penal laws of the countries In
which such crimes were committed, and to A rtic le 6 (b) of the C harter.
1. Genocide
Among the many and various types of murder and ill-tre a tm e n t enumerated
in the Indictm ent, there is one which is of p a rtic u la r in te r e s t. I t is
stated th e re in th a t the defendants "conducted d e lib e ra te and systematic
genocide, v iz . the exterm ination of r a c ia l and n a tio n al groups, against
the c iv ilia n populations of c e rta in occupied t e r r it o r ie s in order to
destroy p a rtic u la r races and c lasses o f people and n a tio n a l, r a c ia l or
religious groups, p a rtic u la rly Jews, Poles and Gypsies and o th e rs."* By
Inclusion o f thiB sp e c ific charge the Prosecution attempted to
introduce and to e sta b lis h a nev type o f in te rn a tio n a l crime.
The word "genocide" is a new term coined by Professor Lemkin to
denote a new conception, namely, th e d e stru ctio n of a n atio n or o f an
ethnic group. Genocide i s d ire c te d ag ain st a n a tio n a l group as an
entity, and the actions involved are d ire c ted against in d iv id u als, not in
their indiv id u al capacity, but as members of the n atio n a l group.
According to Lemkin** genocide does not n e ce ssa rily mean the immediate
destruction of a nation or o f a n a tio n a l group except when accomplished
by mass k illin g s of a l l i t s members. I t 1b intended ra th e r to sig n ify
a co-ordinated plan of d iffe re n t actions aiming a t the d estru ctio n of the
essential foundations of the l i f e o f n atio n a l groups, with the aim of
annihilating the groups themselves. The objectives of such a plan would
be d isin te g ra tio n of the p o litic a l and so c ia l in s titu tio n s , of c u ltu re ,
language, n a tio n a l fe e lin g s, re lig io n , and the economic existence of
national groups, the d e stru ctio n o f the personal se c u rity , lib e r ty , h e alth ,
dignity, and even the liv e s of the individuals belonging to such groups.

* The Indictm ent, page 14.

* See R. Lerakin, Axis Rule in Occupied Europe, Carnegie Endowment fo r
In tern atio n al Peace, D ivision or In te rn a tio n a l law, Washington, 1944,
pages 79-95
E/CNA/w.19
Page 50

Genocide has two phases: one, the d e stru ctio n of the n a tio n a l p a tte rn
o f the oppressed group, fo r vhich th e word "denationalization" vas used
in the p a s t; the o th er, the im position of the n a tio n a l p a tte rn o f the
oppressor. Lemlcin b e lie v e s, however, th a t the conception of
d e n atio n aliz a tio n is inadequate because: (a) i t does not connote the
d estru ctio n of the b io lo g ic a l s tru c tu re ; (b) in connoting the destruction
o f one n atio n a l p a tte rn , i t does not connote the im position o f the
n a tio n a l p a tte rn of the oppressor; and (c) d en atio n alizatio n is often
used to mean only d epriv atio n o f c itiz e n s h ip .
I t w ill be observed th a t the Prosecution, when p re fe rrin g against
th e defendants the charge of genocide, adopted th is term and conception
in a r e s tr ic te d sense only, namely, in th e ir d ire c t and b io lo g ic a l
connotation. This i s evident not only from the d e fin itio n of genocide
as s ta te d in the Indictment and from th e Inclusion of th is charge under
the general count o f murder and ill- tre a tm e n t, b u t a lso from th e fa c t
th a t a l l other aspects and elements o f the defendants' a c tiv itie s
aiming a t the d e n atio n alizatio n of the in h ab itan ts of occupied
te r r i t o r i e s were made the subject o f a separate charge which, under
( j) of Count Three, i s described as germanization of occupied te r r ito r ie s .
When dealing w ith th e substance o f the charge of genocide the
Tribunal declared: "The murder and ill-tre a tm e n t of c iv ilia n populations
reached i t s height in the treatm ent o f the c itiz e n s o f the Soviet Union
and Poland. Some four weeks before the invasion of Russia began,
sp e c ia l ta sk forces of the SIPO and SD, c a lle d E insatz Groups, were
formed on the orders of Himmler fo r the purpose of following the German
armies in to Russia, combating p a rtisan s and members of Resistance
Groups, and exterm inating the Jews and Communist leaders and other
sections o f the population" . . . .and fu rth e r down: "The foregoing crimes
against the c iv ilia n population are s u ffic ie n tly ap p allin g , and yet the
evidence shows th a t a t any ra te in th e E ast, the mass murders and
c ru e ltie s were not committed so le ly fo r the purpose of stamping out
opposition or re sista n c e to the Germany occupying fo rce s. In Poland
and the Soviet Union these crimes wore p a rt of a plan to get rid of whole
native populations by expulsion and a n n ih ila tio n , in order th a t th e ir
t e r r it o r y could be used fo r colonization by Germans."* Then the
Tribunal re fe rre d very b r ie f ly to the p o licy and p ra c tic e oi
exterm inating the I n te llig e n ts ia in Poland and Czechoslovakia, and to
the problem of race which had been given f i r s t consideration by the
Germans in th e ir treatm ent of the c iv ilia n populations of or in occupied
te rrito rie s .

* The Judgment, pages 50-52

 e/ ch.U/wJ.9
Page 51

In a boparato chapter of the Judgment the Tribunal devoted sp ecial

attention to the persecution and exterm ination of Jews. I t etated th a t the
persecution of the Jeve a t the hands of the TJazl Government had been proved
In the g re a te s t d e ta il before the Tribunal and forms a record of co n sisten t
end system atic Inhumanity on the g re a te s t sc a le .* Tho Tribunal then ro called
the anti-Jew ish policy as formulated In Point U of tho Party Programme and
examined, In g re a t d o ta ll, a c ts committed long before the outbreak of war.
After re fe rrin g to a German Foreign O ffice c irc u la r of 25 January 1939,
en titled "Jewish question as a fa c to r in German Foreign Policy In the year
1938" , the Tribunal sta te d : "The Hazt persecution of Jews In Germany before
the war, severe and rep ressiv e as I t vaB, cannot compare, however, with
the policy pursued during the war In tho occupied t e r r i t o r i e s . O riginally
the policy was sim ila r to th a t which had been In force Inside Germany. Jews
were required to r e g is te r , and forced to liv e In ghettoos, to wear the
yellow s ta r , and were used as slave labourers. In the summer of 19^1, however,
plana were made fo r the " fin a l solution" of the Jowiah question in a l l of
Europe. This " fin a l solution" meant the exterm ination of the Jews, which
early in 1939 H itle r had threatened would be one of the consequences of an
outbreak of war, and a sp ecial eectlon In the Gestapo under Adolf Elchmann,
as head of Section Bh of the Gestapo, was formed to carry out the policy.
"The plan fo r exterm inating the Jews was developed sh o rtly a f te r the
attack on the Soviet Union. Einsatzgruppen of tho S ecurity P olice and SD,
formed fo r the purpose of breaking the r e s letence of tho population, of the
areas lying behind the German armies In the E a st, were given the duty of
exterminating the Jews In those a re as. The effectiv en ess of the work o f the
Einsatzgruppen Is shown by the f a c t th a t In February, 19h2, Heydrlch was
able to re p o rt th a t E stonia had already been cleared of Jews and th a t In
Riga the number of Jews had been reduced from 29,500 to 2,500. A ltogether
the Einsatzgruppen operating In the occupied B altic S ta te s k ille d over
135,000 Jews In three m o n th s.,..
"Unite o f the S ecurity P olice and SD In the occupied te r r i t o r i e s of
tho E ast, which were under c iv il ad m in istratio n , were given a sim ila r task.
The planned and system atic character o f the Jewish persecutions Is b est
illu s tra te d by the o rig in a l re p o rt of the SS. B rlgidler-G eneral Stroop,
who was In charge of the d estru ctio n of the ghetto In Warsaw, which took
place in 19**3 The Tribunal received In evidence th a t repor^ illu s tra te d
with photographs, bearing on i t s t i t l e page: The Jewish Ghetto In Warsaw
no longer e x lsto ."**

* The Judgment, p. 60.

** The Judgment, p. 62.
/.After describing
E/CN.4/w.19
Page 52

A fte r describing othor a tr o c itie s ag ain st Jews which were a l l p art and
p arcel of the policy inaugurated In 1941, and the gathering of Jews fro all
German-occupied Europe In concentration camps, which vas another method of
the " f in a l so lu tio n " ,* tho Tribunal f in a lly sta te d : "Special groups
tra v e lle d through Europe to fin d Jews and su b ject thorn to the " fin a l solution",
German missions were se n t to such s a t e l l i t e countries as Hungary and Bulgarie,
to arrange fo r the shipment of Jews to exterm ination camps, and I t Is known
th a t by the end of 1944, 400,000 Jews from Hungary had beep murdered a t
Auschwitz. Evidence has also been given of the evacuation of 110,000 Jews
from a p a rt of Roumanla fo r *liq u id a tio n . Adolf Elchmann, who had been
put in charge of th is programme by H itle r , has estim ated th a t the policy
pursued re su lte d In the k illin g of 6,000,000 Jews, o f whom 4,000,000 were
k ille d In the exterm ination In s titu tio n s " .* *
I t w ill be observed th a t in these statem ents the T ribunal did not
make any reference to the term and conception of genocide, w ithin which
a c ts lik e those re fe rre d to above are comprised. However, the findings
of the Tribunal have not been w ithout Influence on the subsequent events
In the sphere of the progressive development of In te rn a tio n a l Law. On
11 December 1946, the General Assembly of the United Nations adopted a
Bpeclal R esolution on Genocide, th e main p a rt of which roads as follows:
"1. Whereas, genocide Is a d en ial o f the rig h t of existence of
e n tire human groups, as homicide Is the d en ial of the rig h t to
liv e of Individual human beings, and such d e n ial of the r ig h t of
existence shocks the conscience of mankind, re s u lts In g re a t losses
to humanity In the form of c u ltu ra l and other co ntributions
represented by these human groups, arid I b contrary to moral law and
to the s p i r i t and alms of tho United Nations;
"2 . Whereas, many Instances of Buch crimes of genocide have occurred
when r a c ia l, re lig io u s , p o litic a l and othor groups have been
destroyed, e n tire ly or In p art;
"3. And whereas, the punishment of the crime of genocide is a matter
of In te rn a tio n a l concern;
"The General ABBembly
Affirms th a t genocide Is a crime under In te rn a tio n a l law which
the c iv iliz e d world condemns, and fo r tho commission o f which
p rin c ip a ls and accomplices, whether p riv ate In d iv id u als, public
o f f ic ia ls or statesm en, and whether the crime Is committed on
re lig io u s , r a c ia l, p o litic a l c r any other grounds, are punishable*.***

* The Judgment, p. 63.

** The Judgment, p. 64.
*** Quoted from the "Weekly B u lletin " of the United N ations, Vol. 1 ., No. 20,
of 17 December 1946.
 E/CN.yw.l9
Page 53

Follcvlng the recommendations contained In the above R esolution, thlB

new type of In te rn a tio n a l crime has already been the su b ject of advanced
etudy and consideration by the appropriate organa c f the United Rations
with a view to a rriv in g a t an In te rn a tio n a l convention fo r the prevention
and punishment of the crime of genocide.
2, K illin g of "u seless eaterB11

In the p a rt of the Judgment which deals w ith the slave labour policy,
the Tribunal re fe rre d to the h illin g of Insane and Incurable people, In the
following statem ent: "Reference should a lso be made to the policy which
was In existence in Germany by the summer of 19*0, under which a l l aged,
Insane, and Incurable people, "u seless e a te rs " , were tra n sfe rre d to sp ecial
In stitu tio n s where they wore h ille d , and th e ir re la tiv e s informed th a t
they had died from n a tu ra l causes. The victim s were not confined to German
c itiz e n s, but included fo reig n labourers, who wore no longer able to worh,
and were th erefo re u seless to the German war machine. I t has been estimated
that a t le a s t some 275,000 people were h ille d In th is manner In nursing
homes, h o sp ita ls and asylums, which were under tho J u ris d ic tio n of the
defendant F rich , In h is capacity as M inister of the I n te rio r . How many
foreign worhers were Included in th is to ta l I t has been q u ite Impossible
to determ ine". *
I t w ill be noted th a t the Tribunal was c a re fu l to point out th a t the
victims Included foreign labourers and were no t confined to German c itiz e n s .
A ctually, most of the people h ille d In th is manner were German c itiz e n s , a
fact which brings these crimes predominantly w ithin the notion of crimes
against humanity. However, th is new type of v io la tio n o f the In d iv id u al's
rig h t to liv e , so f a r as the persons h ille d were fo reig n worhers, was
considered by the Tribunal as a war crime.
3, Medical experiments
Mention should be made of a c ts which may be described as medical
experiments. I t Is sta te d In the Indictment th a t the murders and Ill-tre a tm e n t
of c iv ilia n populations were c arried o u t, among other means, by the
performance of experiments, by operations and otherw ise, on liv in g human
beings. These pseu d o -scien tific experiments, which had a lso been used
aa methods of exterm ination In concentration camps, Included s te r iliz a tio n
of women, study of the evolution of cancer of the vomb, and of typhuB,
anatomical research, h e a rt In je c tio n s, bone g ra ftin g and muscular
excisions. Experiments on children had a lso been conducted. These
experiments had been performed In concentration camps In Germany and In

* The Judgment, p. 60.

/occupied
E/CN.VW-19
Page 5k

occupied t e r r it o r ie s (RavonBbruck, Buchenwald, N atzw eiller and Auschwitz),*

When dealing with crimes committed In concentration camps the Tribunal
did not r e f e r to th is p a rtic u la r charge and did not mention the experimente.

TTX. Murder and Ill-tre a tm e n t of prisoners of war,

and of o th er memborB of the armed forcoB
I t Is sta te d in the Indictm ent th a t the defendants murdered and
I ll - tr e a t e d prisoners of war by denying them adequate food, s h e lte r,
clothing and medical care and a tte n tio n ; by forcing them to labour In
Inhumane conditions; by to rtu rin g them and subjecting them to inhuman
In d ig n ities and by k illin g them. Prisoners of war wore Imprisoned In varloua
concentration camps, where they were k ille d and subjected to Inhuman
treatm ent by various methods. Members of the armed forces of the countries
w ith which Germany was a t war wore freq u en tly murdered while In the act
of surrendering.
The Prosecution alleged th a t a l l these murders and Ill-tre a tm e n t were
contrary to In te rn a tio n a l Conventions, p a rtic u la rly A rtic le s U, 5, 6 and 7
of the Hague R egulations, 1907, and to A rtic le s 2, 3, k and 6 of the
P risoners of War Convention (Geneva 1929), th e laws and customs of war,
the general p rin c ip le s of crim inal law aB derived from the crim inal laws
of a l l c iv iliz e d n atio n s, th e in te rn a l penal laws of the countries in which
such crimes were committed and to A rtic le 6 (b) of the Charter.**
In a general observation the Tribunal estab lish ed th a t prisoners
of war were ill- tr e a te d and to rtu red and murdered, not only In defiance
o f the w ell-estab lish ed ru le s of In te rn a tio n a l la v , but in complete
disregard of the elementary d ic ta te s of humanity. The Tribunal said
fu rth e r, In some d e ta il, th a t many and various v io la tio n s cf the rig h ts of
prisoners of war and of other members of the a llie d armed forces were
committed In the course of the war, often as a m atter of d e lib e rate and
calculated policy. P a rtic u la r reference is made to the handing over to
the SIPO and SB fo r execution of recaptured p riso n e rs, and to systematic
k illin g by the c iv ilia n population of a llie d airmen who were forced to
land in Germany.
1. K illin g of "Commandos"
The Tribunal re fe rre d a t some length to a d ire c tiv e c irc u la te d , with
the a u th o riz atio n of H itle r , by the defendant K e ite l on 18 October 19k2,
which ordered th a t a l l members of A llied "Commando" u n its , often when In
uniform and whether armed or n o t, were to be "slaughtered to the laBt man",

* The Indictm ent, p. l h , 15 and 18.

** The Indictm ent, p . 20-21.
/even i f they
 e /CN.4/w. 19
Page 55

even i f they attempted to surrender. This order fu rth e r provided th a t i f

such A llied troops came in to the hands of the m ilita ry a u th o ritie s a f te r
being f i r s t captured "by the lo c a l p o lice, or in any other way, they should
be handed over immediately to th e 2D. This order was supplemented from time
to time, and was e ffe c tiv e throughout th e remainder of th e war, although
after the A llied landings in Normandy in 1944, i t was made c le a r th a t the
order did not apply to "Commandos", captured w ith in the imnediate t a t t l e area.
Hie Tribunal esta b lish e d th a t under the provisions of th is order, A llied
"Ccmnando" tro o p s, and other m ilita ry u n its operating independently, lo s t
their liv e s in Nonray, France, Czechoslovakia and I ta ly . Many of them were
killed on the spot, and in no case were those who were executed la te r in
concentration camps ever given a t r i a l of any kind. For example, an
American m ilita ry mission which landed behind the German fro n t in the Balkans
in January 1945, numbering about twelve to f if te e n men and wearing uniform,
vere taken to Mauthausen under the au th o rity of th is order, and a l l of them
vere shot.*
2. A pplication of th e law to Sov ie t victim s
The Tribunal devoted much a tte n tio n to the treatm ent of Soviet prisoners
of war which was characterized by p a rtic u la r inhumanity, due not merely to
the action of indiv id u al guards, or th e exigencies of l i f e in the camps, but
the re s u lt of system atic plans made some time before th e German invasion
started.
With regard to th e murder and ill-tre a tm e n t alleg ed ly committed against
Soviet prisoners of war, th e Defence submitted th a t th e Union of Soviet
Socialist Republics was not a party to the Geneva Convention, which th erefo re
vas not binding in the re la tio n s h ip between Germany and the Union of Soviet
Socialist R epublics. This argument, which c o rre c tly sta te d th e le g a l
position, was howeve discarded by th e T ribunal. The l a t t e r took the view
that In th is case th e p rin c ip le s of general in te rn a tio n a l law on the treatm ent
of prisoners of war apply. Since the eighteenth century these have gradually
been established along th e lin e s th a t war c a p tiv ity ia n e ith e r revenge nor
punishment, but so lely p ro tectiv e custody, the only purpose of which i s to
prevent the prisoners of war from fu rth e r p a rtic ip a tio n in the war.**
In making the above statem ent th e trib u n a l did not r e f e r to any
particular provisions of general in te rn a tio n a l law. I t i s , however, c le a r
that the provisions which th e Tribunal had in mind, and on th e b a sis of which
it convicted seme of the defendants fo r offences of th is kind, are those

* The Judgment, page 4-5.

** The Judgment, page 48.
/contained
e / cn .U/w. i 9
Page 56

contained in A rtic le s k-20 of th e Hague Regulations to vhich hoth Germany end

R ussia were p a rtie s . AH th ese provisions, vhich contain q u ite exhaustive
ru le s regarding c a p tiv ity of prisoners of war, were in f a c t incorporated
in the Geneva Convention, I 929, w ith th e exception of A rtic le s 10-12 relating
to re le ase of prisoners on parole.

IV. Taking and K illin g of Hostages

The general statement regarding th e p ractice of tailing and k illin g
hostages as contained in the Indictm ent, reads as follow s: "Thrughout
th e te r r i t o r i e s occupied "by the German armed forces in the course of
waging aggressive v e rs, the defendants adopted end pat in to e ffe c t, on a
wide sca le , the p ractice of tak in g , and of k illin g , hostages from the
c iv ilia n population. These acts were contrary to In te rn a tio n a l Conventions,
p a rtic u la rly A rtic le 50 of the Hague R egulations, I 907, th e laws and customs
of war, the General p rin c ip le s of crim inal law as derived from the criminal
laws of a l l c iv iliz e d n atio n s, the in te rn e l penal lavs of th e countries
in which such crimes were ccomitted and to A rtic le 6 (b) of th e Charter".-*
Pram th e wording cf th is charge, in p a rtic u la r from the words "of
ta k in g , and of k illin g " , and "these a c ts " , i t would appear prima fa c ie as
i f th e Prosecution was attem pting to e sta b lis h th a t not only th e k illin g ,
b u t a lso th e tak in g of hostages should he considered as crim inal under
In te rn a tio n a l Law. Such a contention, i f intended, would have had 6ome
j u s t i f i c a t i o n in view of th e w e ll-e sta b lish e d f a c t th a t during th e second
World War th e Germans re so rte d to th e p ra c tic e of tak in g hostages, not only-
on a wide sc a le , but elso to a la rg e ex ten t in d isc rim in a te ly , fo r the
purpose of te rro r iz in g th e population in occupied t e r r i t o r i e s - a practice
vhich f a r exceeded the le g itim a te rig h t o f the b e llig e re n t to prevent -hostile
a c ts . Yet any deduction th a t such was the in te n tio n of th e Prosecution is
weakened by the fa c t -hat th e te x t of th e above charge, as w ell as a l l
a c tu a l fa c ts and fig u res enumerated in the Indictment resp ectin g these acts,
appear under the heading "K illin g of hostages", and a l l instances cited
r e f e r only to the executions and shootings of hostages.
In c o n tra d istin c tio n to th e p ra c tic e of taking hostages as a means
o f securing leg itim a te warf e re , which preveiled in former tin e s , th e modern
p ra c tice of taking hostages is re so rte d to by the b e llig e re n ts fo r the
purpose of securing the safety of the armod forces or of th e occupation

* The Indictm ent, page 22.

/a u th o ritie s
 E/CN.4/w. 19
Page 57

authorities against possible h o s tile a c ts by th e in h ab itan ts of occupied

te rrito ry . Persons from among th e population of such t e r r i t o r i e s are seized
and detained, in the expectation th a t th e population w ill r e f r a in from
hostile acts out of regard fo r th e fa te of th e hostages. I t cannot be
denied th a t th is measure i s a harsh one, as i t makes Individuals lia b le to
suffer imprisonment fo r a c ts fo r which they are not resp o n sib le. But the
security of the troops and of the occupation a u th o ritie s and th e safety
of m ilita ry in s ta lla tio n s e tc . seems h ith e rto to have been held to J u s tify
this measure and p ra c tic e . In f a c t, th e re i s no ru le in In te rn a tio n a l Law
preventing a b e llig e re n t from re s o rtin g to the p ra c tic e , provided th a t
hostages are not exposed to dangers f o r th e purpose of preventing leg itim a te
h o s tilitie s on th e p art of members of th e armed forces of th e enemy.
Duriuc the f i r s t World War, however, Germany adopted th e reprehensible
practice of shooting hostages in the t e r r i t o r i e s occupied by her armies,
whenever she believed th a t c iv ilia n s h a d .fire d upon German, tro o p s. During
the second World War Germany followed th e p ra c tice of th e mass shooting
of hostages on such an unprecedented scale a to b rin g i t prominently
within the category of war crimes. Accordingly, A rtic le 6 (b) of the Charter
provides th a t " k illin g of hostages" s h a ll be a war crime.
The Tribunal esta b lish e d in i t s Judgment th a t "hostages were taken in
very large numbers from the c iv ilia n populations in a l l th e occupied
countries, and were shot as su ite d th e German purposes".* The Tribunal
further s ta te d : "The p ra c tice of keeping hostages to prevent and to punish
any form of c i v i l diso rd er was re so rte d to by th e Germans; an order Issued
by the defendant K e ite l on 16 September 1941, spoke in terms of f i f t y or a
hundred liv e s frem the occupied areas of the Soviet Union fo r one German
life taken. The order sta te d th a t i t should be remembered th a t a human
life in u n se ttle d countries freq u en tly counts fo r nothing, end a d e terre n t
effect can be obtained only by unusuel s e v e rity ' . The exact number of persons
killed as a r e s u lt of th is policy i s not mown, but larg e numbers were k ille d
in Prance and th e other occupied t e r r i t o r i e s in th e West, while in the E ast
the slaughter was on an even more extensive scale".* *
In making th e above statem ent th e Tribunal re fe rre d to A rtic le 6 (b)
of the C harter, th e provisions, of which, th e Tribunal sa id , ere merely
declaratory of th e e x istin g laws of war as expressed in th is p a rtic u la r
connection by A rtic le 46 of the Hague R egulations.*** A rtic le 46 s ta te s
that "Family honour and rig h t? , th e liv e s of persons and p riv ate property,
es well as re lig io u s convictions and p ractices must be resp ected ". A rtic le 6 (b)
speaks only of the k illin g of hostages.

* The Juidonent, pc go 45. .

** Tht Judcjncnt, page 49-50.
*** Hie JudcTiont, page 43.
e / ch. i+/w.19
Pase 5

I t w ill be observed th a t th e Prosecution took the view th a t the

p ra c tic e "of ta k in g , and of k illin g , hostages" was contrary to A rtic le 50 of
the Hogue R egulations, which s ta te s th a t "no c o lle c tiv e penalty, pecuniary
or otherw ise, s h a ll he in f lic te d upon the population on account of the acts
of individuals f o r which i t cannot be regarded as c o lle c tiv e ly responsible."
The Tribunal did not make any reference to A rtic le 50 in connection
w ith the talcing and k illin g of hostages. But, in i t s statement on the law
re la tin g to war crimes in general, the Tribunal mentioned th is a r tic le
among those provisions of In te rn a tio n a l Law tinder which the crimes defined
by A rticle 6 (b) of the C harter "were already recognized as war crimes".*
I t i6 not c lea r what p a rtic u la r a cts the Tribunal had in mind in re fe rrin g
to A rtic le 50, and i t b doubtful whether th e a r tic le could be applied to
th e case In question, as i t d eals w ith general p e n a ltie s which might be
in f lic te d upon a larg e body of th e population and has h ith e rto not been
regarded as. preventing the occupant from tak in g hostages.** Thus, no
c le a r guidance can be derived from the above statem ents of the Tribunal
on the question whether th e mere taking of hostages is to be regarded as
crim in al.

V# Slave Labour
A rtic le 6 (b) of the Charter provides th a t the " ill-tre a tm e n t or
d eportation to slave labour or fo r any other purpose, of c iv ilia n population
of or in occupied te r r ito r y " s h a ll be a war crime.
The offences coming w ith in the scope of th is p a rtic u la r type of crime
have been s p l i t in the Indictment in to two separate groups under (B) and (H)
of Count Three. The general statem ents in resp ect of these read as follows:
(B) DEPORTATION FOR SLAVE LABOUR AND FOR OTHER PURPOSES
"During the whole period of th e occupation by Germany of both the
Western and Easte ti countries i t was the policy of the German Government
end of th e German High Command to deport able bodied c itiz e n s freon such
occupied countries to Germany, and to other occupied countries fo r the
purpose of slave labour upon defence works, in fa c to rie s and in other
ta sk s connected w ith th e German war e f f o r t.
"In pursuance of such policy th e re were mass deportations from a ll
the Western and E astern countries fo r such purposes during the whole
period o f th e occupation.

* The Judgnent, page 6h, and th e Section of th is Report dealing with the
J u ris d ic tio n of th e T ribunal.
** L. Oppenheim, op. c i t . , page 3 ^ *
/"Such deportations
 e / cn.4/ w. i 9
Page 59

"Such deportations were contrary to In te rn a tio n a l Conventions, in

p a rtic u la r to A rtic le 46 of the Hague Regulations, 1907, the laws and
customs of war, the general p rin cip les of crim inal law as derived from
the crim inal laws of a l l c iv iliz e d n atio n s, the in te rn a l penal laws of
the countries in which such crimes were committed and to A rticle 6 (b)
of the Charte r ".
(H) CONSCRIPTION OF CIVILIAN LABOUR
"Throughout the occupied te r r i t o r i e s th e defendants conscripted
and forced the in h ab itan ts to labour and re q u isitio n e d th e ir services
fo r purposes other than meeting the needs of the armies of occupation
and to an extent f a r out of proportion to th e resources- of th e countries
involved. A ll the c iv ilia n s so conscripted were forced to work fo r
the German war e f f o r t. C iv ilian s were required to r e g is te r and many of
those who re g is te re d were forced to Join the Todt Organization and
the Speer Legion, both of which were sem i-m ilitary organizations
involving same m ilita ry tra in in g .
"These acts v io la te d A rtic le s 46 and 52 of the Hague Regulations,
I 907, the laws and customs of war, th e general p rin cip les of crim inal
law as derived from th e crim inal laws of a l l c iv iliz e d n atio n s, the
in te rn a l penal laws of th e countries in which such crimes were committed
and A rtic le 6 (b) of th e C harter".*
Leaving aside the p ra c tice of deporting th e c iv ilia n populations fo r
slave labour or other purposes, which c o n stitu te s a c le a r contravention
of A rticle 46, we w ill concentrate on A rtic le 52 which i s of primary
importance, and to which the Tribunal re fe rre d in th a t p a rt of the Judgnent
relating to forced labour by the in h ab itan ts of occupied t e r r i t o r i e s . This
a rtic le reads as follow s:
"R equisitions in kind and services s h a ll not be demanded from lo c a l
a u th o ritie s or in h ab itan ts except fo r th e needs of the army of
occupation. They s h a ll be in proportion to the resources of the
country, and of such a nature as not t o involve the in h ab itan ts in the
o b lig atio n of tak in g p a rt in m ilita ry operations against th e ir own
country.
"Such re q u is itio n s and services s h a ll only be demanded on the
au thority of the commander in th e lo c a lity occupied.
"Contributions in kind 6 h all as f a r as possible be paid fo r in
ready money; i f n o t, a re c e ip t s h a ll be given and th e payment of the
amount due s h a ll be made as soon as p o ssib le".

* The Indictm ent, page I 9

** The Indictm ent, page 28
/According to
 e /CR.4/w.19
Page 60

According to these provisions, th e occupation a u th o ritie s may

compulsorily employ th e in h ab itan ts on various works and compel them to
render services necessary e ith e r for. th e adm inistration of th e country or
f o r the needs of the army of occupation, always provided th a t th e services
are not demanded in order to supply th e b e llig e re n ts ' general needs, and
th a t they do not oblige th e in h ab itan ts to take p a rt in m ilita ry operations
against th e ir own country.
The in te rp re ta tio n of "taking p a rt in m ilita ry operations" has, however
always been somewhat c o n tro v e rsial. Many w rite rs m aintain th a t the words
extend to the construction of b rid g es, f o r tif ic a tio n s , and th e lik e , even
behind the f r o n t. But the p ractice of b e llig e re n ts ae distinguished
between m ilita ry operations and m ilita ry p rep aratio n s, and has not condemned
as inadm issible compulsion upon in h ab itan ts to render a ssistan ce in the
construction of m ilita ry roads, f o r tif ic a tio n s , and th e lik e behind the front,
or in any other works in preparation fo r m ilita ry operations. I t is true
th a t attem pts have been made in the past to obtain the p ro h ib itio n of
re q u is itio n in g , or compulsion even in resp ect of such services a3 only
involve talcing p ert in m ilita ry p rep aratio n s. Thus the Russian d ra ft put
before the Conference of B russels in 1874 proposed in A rtic le 48 a stipult!
to th e e ffe c t th a t th e population of an occupied te r r i t o r y might not be
forced to take p a rt in th m ilita ry operations against th e ir own country,
or in such acts as are contributory to th e re a liz a tio n of th e aims of war
detrim ental to th e ir own country. S im ilarly , the I n s titu te of International
Law in i t s Oxford Manual of the Laws of War on Lend la id down th e ru le
(A rtic le 48, page 2) th a t an occupant must not compel in h a b ita n ts, eith er
to take p e rta in th e m ilita ry operations or to a s s is t him in h is works of
a tta c k or defence,* But th e B russels Conference struck out the proposed
Russien te x t, th e Hague Conferences did not adopt any of these ru le s , end
A rtic le 52 of th e Hagu. Regulations p ro h ib its the re q u isitio n in g only of
such services as involve th e tak in g p e rt in m ilita ry operations. .Thus, a ll
attem pts to extend this p ro h ib itio n to services which imply an obligation
to take p ert in m ilita ry preperations and th e lik e have h ith e rto fa ile d , with
th e r e s u lt th a t during th f i r s t World War, not only the Germans in Belgium
and France, but also the Russians in G alicia, compelled the inhabitants
to construct f o r tif ic a tio n s and trenches in th e r e a r . During th e second
World War Germany followed th e p ra c tice of sy stem atically fo rcin g the
in h ab itan ts to labour and of re q u isitio n in g th e ir services to an extent that
was out of a l l proportion to the needs of th e armies of occupation and on
such a scale as to b rin g in to the foieground the n ecessity of amending the

* L. Oppenheim, op. c i t , , page 345

/relevant
 E/CN.1*/W.19
Page 6 l

relevant provisions of the Hague R egulations.

As in d icated , the Tribunal re fe rre d in the Judgment to A rtic le 52 of
the Hague Regulations as the law r e la tin g to the question under discussion,
and stated th a t "the policy of the German occupation a u th o ritie s was in
flagrant v io la tio n of the terms of th is Convention". This policy re su lte d
in "forcing many of the in h ab itan ts of th e occupied te r r i t o r i e s to work
for the German war e f f o r t, and in deporting a t le a s t 5>000,000 persons to
Germany to serve German industry and a g ric u ltu re " , and "for the purposes
of slave labour upon deforce works, armament production and sim ilar task s
connected w ith the war e f f o r t" . The Tribunal fu rth e r sta te d : "In the
early staces of tire war, man-power in th e occupied t e r r i t o r i e s was under
.the control of various occupation a u th o ritie s , and the procedure varied from
country to country. In a l l the occupied te r r i t o r i e s compulsory labour
service was promptly in s titu te d . In h ab itan ts of the occupied countries were
conscripted.- and compelled to work in lo c a l occupations, to a s s is t the
German war economy. In many cases they were forced to work on German
fo rtific a tio n s and m ilita ry in s ta lla tio n s . As lo c a l supplies of raw
materials and lo c a l in d u s trie l capacity became inadequate to meet the
German requirem ents, the system of deporting labourers to Germany was put
into fo rce ".*
I t w ill be seen th a t the general observations of th e Tribunal go fa r
beyond the tre n d of e a r lie r developments and th e unsuccessful attem pts a t an
extensive in te rp re ta tio n of A rtic le 52 as outlined above. I t would appear
that, in the opinion of the T ribunal, not only is i t inadm issible to compel
the inhabitants to render a ssista n c e , f a llin g w ith in th e notion of
. "military -preparations" but i t is also a crim inal a ct to conscript and compel
inhabitants to work in any occupation which might d ire c tly a s s is t th e enemy
b e llig e re n ts' "war e f f o r t and "war economy".

VI. flunder of Public and P rivate Property

The Indictment d e a lt w ith t h i s type of war crimes in th e following, way:
"The defendants ru tlile s s ly exploited th e people and th e m aterial resources
of the countries they occupied, in order to strengthen the Nazi war machine,
to depopulate and impoverish the r e s t of Europe, to enrich themselves and
their adherents, end to promote German economic supremacy over Europe.
"The Defendants engaged in th e following acts and p ra c tic e s, among
others:
1. They degraded the standard of l i f e of the people of occupied
countries and caused sta rv a tio n , by strip p in g occupied countries of
foodstuffs fo r removal to Germany.
* The Judynent, page 57* /2 . They seized
e /CN.V w. 19
Page 62

2. They seized raw m aterials and in d u s tria l machinery in a l l of the

occupied co untries, removed them to Germany and used them in the
in te r e s t of the German war e ffo rt and the German economy.
3. In a l l the occupied co u n tries, in varying degrees, they confiscated
"businesses, plants and other property,
k. In an attempt to give colour of le g a lity to il l e g a l acquisitions
of property, they forced owners of property to go through th e forms
of "voluntary" and "legal" tra n s fe rs .
5, They esta b lish e d comprehensive co n tro ls over th e economies of a ll
of th e occupied countries and d ire c te d th e i r reso u rces, th e ir
production and th e ir labour in th e in te re s ts of the German war economy,
depriving the lo c a l populations of the products of e s s e n tia l industries.
6, By a v a rie ty of fin a n c ia l mechanisms, they despoiled a l l of the
occupied countries of e s s e n tia l commodities and accumulated wealth,
debased the lo c a l currency systems and d isrupted th e lo c a l economies.
They financed extensive purchases in occupied countries through

c lea rin g arrangements by which they exacted loans from the occupied
c o u n trie s. They imposed occupation le v ie s , exacted fin a n c ia l
co n trib u tio n s, and issued occupation currency, f a r in excess of
occupation c o sts . They used these excess funds to finance the
purchase of business p ro p erties and supplies in the occupied countries,
7, They abrogated th e rig h ts of th e lo c a l populations in the occupied
portions of the Union of th e Soviet S o c ia lis t Republics and in Poland
and In other countries to develop or manage a g ric u ltu ra l and industrial
p ro p e rtie s, and reserved th is area fo r exclusive settlem ents,
development, and ownership by Germans and th e ir so -c alle d r a c ia l brethren.
8, In fu rth e r development of th e ir plan of crim inal e x p lo ita tio n ,
they destroyed in d u s tria l c i t i e s , c u ltu ra l monuments, s c ie n tif ic
in s titu tio n s , end property of a l l types in the occupied te r r ito r ie s
to elim inate the p o s s ib ility of competition w ith Germany.
9, From th e ir programme of te r r o r , slavery, sp o lia tio n and organized
outrage, th e Ilazi conspirators created an instrument fo r the personal
p r o f it and aggrandizement of themselves and th e ir adherents. They
secured fo r themselves and th e ir adherents;
(a) P ositio n s in ad m in istratio n of business involving power,
influence and lu c ra tiv e p e rq u is ite s,
(b) The use of cheap forced lab o u r,
(c) The a cq u isitio n on advantageous terms of fo reig n properties,
business in te re s ts and raw m a te ria ls.
(d) The b a sis fo r th e in d u s tria l supremacy of Germany.
/"These acts
 e /CNAAM9
Page 63

"These acts were contrary to In te rn a tio n a l Conventions, p a rtic u la rly

A rtic le s 46 to 56 inclusive of the Hague R egulations, 1907 th e laws
and customs of war, th e general p rin cip les of crim inal law as derived
from th e crim inal laws of a l l c iv iliz e d n atio n s, the in te rn a l penal
laws of th e countries in which such crimes were committed and to
A rtic le 6 (b) of th e C harter".*
The Indictment then enumerated, by way of example, and without
prejudice to the production of evidence in other cases, a great number of
actual fa c ts and fig u res resp ectin g plunder, which are divided in to the
following main groups: (a) Removal of raw m a te ria ls, (b) Removal of
in d u stria l equipment, (c) Removal of a g ric u ltu ra l produce, (d) Removal
of manufactured products, (e) F inancial e x p lo ita tio n , (f) Plundering,
and (g) Looting of works of a r t.
I t w ill be observed th a t the Prosecution, when p referrin g against the
defendants the above charges, re fe rre d in te r a lia to A rticle 47 of the
Hague Regulations, according to which "p illag e is expressly forbidden".
This provision means, in the f i r s t instance, th a t the p riv ate property
of the inhabitants of occupied te r r ito r y is no longer a lawful object of
private booty and th a t so ld ie rs of the occupant must not plunder fo r p riv ate
purposes. The Charter of the Tribunal does not use th e term "p illag e" but

speaks in A rtic le 6 (b) of "plunder of public or p riv ate property". On the
other hand the Nrnberg Judgment summarized the law in resp ect of charges of
plunder of public or p rivate property in the follow ing statem ent: "A rticle 49
of the Hague Convention provides th a t an occupying power may levy a
contribution of money from the occupied te r r it o r y to pay fo r the needs of
the army of occupation and fo r the adm inistration of th e te r r it o r y in
question. A rtic le 52 of the Hague Convention provides th a t an occupying
power may make re q u isitio n s in kind only fo r th e needs of the army of
occupation, and th a t these re q u isitio n s s h a ll be in proportion to the
resources of th e country. These A rticle.., together w ith A rtic le 48, dealing
with the expenditure of money collected in tax es, and A rtic le s 53; 55 and 56,
dealing w ith public property, make i t c lea r th a t under the ru le s of war,
the economy of an occupied country can only be required to bear th e expenses
of the occupations, and these should not be g re a ter than the economy of
the country can reasonably be expected to bear".**
The A rticles of the Hague Regulations re fe rre d to by the Tribunal read
as follows:
"A rtic le 48. I f , in th e te r r it o r y occupied, the occupant c o lle c ts the
taxes, dues and t o l l s payable to the S ta te , he s h a ll do so, as f a r as

* The Indictment, page 22-23.

** The Judgment, page 53 / i s possible
E/CM.U/w.19
Page Sk

i s possib le, in accordance v ith th e lo c a l b a sis and as cessment in force

a t the tim e, end s h a ll in consequence bo bound to defray th e expenses
of th e adm inistration of th e occupied t e r r it o r y to th e same extent as
th e n a tio n a l Government had been so bound".
"A rtic le ^9. I f , in ad d itio n to th e taxes mentioned in th e above
A rtic le , the occupant le v ie s other money contributions in th e occupied
te r r it o r y , they s h a ll only he applied to the needs of th e array or of
th e adm inistration of the te r r it o r y in question".
"A rtic le 52. R equisitions in kind and services s h a ll not be demanded
from lo c a l a u th o ritie s or in h ab itan ts except fo r the needs of the army
of occupation. They s h a ll be in proportion to the resources of the
country, and of such a nature as not to involve the in h ab itan ts in the
o b lig atio n of taking p a rt in m ilita ry operations against th e ir own
country",
".Article 53. An a rty of occupation s h a ll only take possession of cash,
funds, and re a lis a b le s e c u ritie s which are s t r i c t l y the property of the
S ta te , depots of arms, means of tra n s p o rt, sto re s and supplies, and,
generally, a l l movable property belonging to the S ta te which may be used
fo r m ilita ry operations".
"Except in cases governed by naval law, a l l appliances adapted for
the transm ission of news, or fo r th e tra n s p o rt of persons or goods,
whether on land, a t sea, or in th e a i r , depots of arms, and, in general,
a l l kinds of war m aterial may be seized, even i f they belong to private
in d iv id u a ls, but they must be re sto re d a t th e conclusion of peace, and
indem nities must be paid fo r thorn".
"A rtic le 55. The occupying S tate s h a ll he regarded only as
adm inistrator and usufructuary of public b u ild in g s, landed property,
f o r e s ts , and a g ric u ltu ra l undertakings belonging to th e h o s tile State,
and s itu a te d in t h i occupied country. I t must safeguard th e cap ital of
such p ro p e rtie s, and adm inister them in accordance w ith the ru le s of
u su fru c t".
"A rtic le 56. The property of lo c a l a u th o ritie s , as w ell as th a t of
in s titu tio n s dedicated to public worship, c h a rity , education, and to
science and a r t , even when S ta te property, s h a ll he tre a te d as private
property."
"Any seizure or d e stru ctio n o f, or w ilfu l damage to , in stitu tio n s
of th is ch aracter, h is to ric monument;s and works of science and a rt, is
forbidden, and should he made th e subject of le g a l proceedings".
In i t s general conclusions the Tribunal sta te d th a t the evidence in this
case has e stab lish ed , however, th a t th e te r r i t o r i e s occupied by Germany were
/ex p lo ited
 e / citA / w.19
Page 65

exploited f c r the Gorman war e ffo rt in the moct ru th le s s way, without

consideration of the lo c a l economy, and.In consequence of a d e lib e rate design
end policy. There vas in tr u th a system atic "plunder of public or private
property", which was crim inal under A rtic le 6 (b) of th e C harter.*
In describing the conduct of the occupying a u th o ritie s in some of the
occupied co u ntries, the Judgment re fe rs to an order of Goering issued as
aoriy as I 9 October 1939, and s.-.ie s th e follow ing: "As e consequence of th is
order, agrlcxilturol products, raw m aterials needed by German fa c to rie s ,
nachine to o ls , tra n s p o rta tio n equipment, eth er fin ish e d products and even
foreign s e c u ritie s and holdings of fo reig n exchange were e l l req u isitio n ed
end s6nt to Germany. These resources were re q u isitio n e d in a manner out of
all proportion to th e economic resources of those co u n tries, and re su lte d
in femine, in f la tio n and an activ e Black Market. A.t f i r s t the German
occupation a u th o ritie s attempted to suppress the Black Market, because i t
vas a channel of d is trib u tio n keeping lo c a l products out of German hands.
When attempts a t suppression f a ile d , a German purchasing agency was organized
to moke purchases fo r Germany on the Black Market, thus carrying out tho
assurance made by the defendant Gooring th a t i t was aeccescry th a t e l l should
know th a t i f th e re is to be famine anywhere, i t s h a ll in no case be in
Germany. *
"In many of the occupied countries of th e East and th e West, the
authorities maintained the pretence of paying fo r a l l th e property which
they seized. This elaborate pretence of payment merely disguised the fa c t
that the goods sent to Germany from these occupied countries were paid fo r
by the occupied countries themselves, e ith e r by the device of excessive
occupation costs or by forced le in re tu rn fo r a c re d it balance on a
"clearing account" which was an account merely in name.
"In most of the occupied countries of th e East even th is pretence
of le g elity was not maintained; economic e x p lo ita tio n became d e lib e rate
plunder".**
The Tribuncl then described in d e ta il th e crim inal a c tiv itie s of sene
of the defendants in resp ect of the system atic lo o tin g and seizure of
cultural and a r t tre a s u re s .
I t is apparent th a t th e foregoing statem ents, general as they are,
raise many important end in tr ic a te problems, re q u irin g prolonged study and
analysis. A ll th a t can be said a t th is stag e , q u ite generally, is th a t:
(a) the London C harter and the Nrnberg Judgment have developed the ru le s
of International law to the extent th a t net only p illa g e , which is the

* The Judgment, page j>b.

H The Judgment, page 5^-55.
/unauthorized
/C3.tyfo.l9
Fuge 66

unauthorised outrage cf ind iv id u al s o ld ie rs , hut e lse a c tiv itie s which cone

under the much wider term of plunder of public or p riv ate propex*ty aro
p-jrJ.shrbI.ej (j) the notions of "p illa g e" and of "plunder of public and
p riv a te property" have been s u b sta n tia lly extended beyond th e scope which
th e term " p ilirg s " was probably considered to cover a t th e time of the
making of th e Hague R egulations.

V II. Uanton d estru ctio n of c i t i e s , towns and v illa g e s and devastation

not .ju s tifie d hy m ilita ry n ecessity
The charge under th is heading alleg ed th a t th e defendente ventonly
destroyed c i t i e s , towns and v illa g e s and committed eth er ect3 of devastation
w ithout m ilita ry ju s tif ic a tio n or n e c e ssity . The Indictment says th a t
th ese a c ts were in v io la tio n i /a rtic le s 46 and 50 of th e Hague Regulations,
1S07, the laws and cv.sterns of war, th e general p rin c ip le s, of crim inal law
as derived from the crim inal laws of a l l c iv iliz e d n atio n s, the in te rn a l
penal laws of the countries in which such crimes were committed end
A rtic le 6 (b) of tho C harter.* A rtic le 6 (b) provides th a t wanton destruction
of c i t i e s , towns or v illa g e s , or d ev astatio n not ju s tif ie d by m ilita ry
n e ce ssity s h a ll be a war crime.
Among th e p a rtic u la r instances of such d e stru ctio n and devastation
th e Indictment mentions th e follow ing examples: (a) d e stru ctio n of villages
and towns, dynamiting and demolishing of p o rts and re s o rts in France; (b)
wide-spread and extensive d estru ctio n of harbours, locks dykes and bridges,
and devastation caused by inundations in Holland; (c) burning to th e ground
and k illin g the in h ab itan ts of v illa g e s by punitive expeditions in
Yugoslavia and Czechoslovakia.
I t w ill be observed th a t in eny case th e instances enumerated under
(c) c o n stitu te c le a r examples of r e p ris a ls re so rte d to by th e Gormans
ag ain st th e c iv ilia n population. I t is to be presumed th a t in resp ect of
th ese p a rtic u la r a c ts th e chargo was based in te r a lia on A rtic le 50 of the
Eague R egulations, which has already been quoted and analyzed in connection
w ith talcing of hostages (Sectio_ IV).
However, the Hague Regulations do not mention r e p ris a ls a t a l l , because
th e B russels Conference of 1374, which accepted th e u n ra tifie d B russels
D eclaration, had struck out sev eral sections of th e d ra ft code regarding
r e p r is a ls . These sections s tip u la te d th a t: (a) r e p ris a ls should be admitted
only in extreme cases of absolutely c e rta in v io la tio n s of th e ru le s of
le g itim a te w arfare; (b) the a cts performed by way of r e p r is a l should not be
excessive, b u t in proportion to th e v io la tio n ; (c) re p ris a ls should be ordered
by ccmmcnders-in-chiof only.**

* The Indictm ent, page 27.

** L. Oppenheim, op. c i t . , pege 449
/According to
 E/CN.U/U.19
Page 67

According to the present s ta te of In te rn a tio n a l Lew, re p ris a ls between

belligerents are adm issible fo r a c ts of ille g itim a te w arfare, elthough
In practice innocent people ere thereby punished fo r i lle g a l a c ts , fo r which
they are n e ith e r le g a lly nor m orally resp o n sib le. A rtic le 50 of th e Hague
Regulations, upon which the Prosecution based th e charge, in no way
prevents th e burning or d e stru ctio n , by way of r e p r is a ls , of houses or even
Tillages and towns, fo r treacherous atteck s on enemy so ld ie rs or other
hostile acts committed by unknown in d iv id u a ls. The rig h t to exercise
reprisals c a rrie s w ith i t , however, a Great danger of a rb itra rin e s s as
the events of th e two World Wars amply i l l u s t r a t e . The a tr o c itie s committed
by the German army and other m ilita ri- or p a ra -m ilita ry organizations a l l
I
ever Europe, were always docl*n - by the German a u th o ritie s to be J u s tif ie d
as measures of r e p r is a ls . This s ta te of a f f a ir s has, fo r e long time p a st,
called fo r th e enactment of more precise ru le s regarding the re s o rt to
reprisals.
Except fo r two or th re e instances illu s tr a tin g the p ractice of re s o rtin g
to re p risa ls the Nrnberg Judgment does not devote p a rtic u la r a tte n tio n
to th is question. The only reference to th e charge i s contained in the
following sentence: "C ities and towns end v illa g e s were wantonly destroyed
without m ilita ry J u s tif ic a tio n or n ececcity ".* In th is connection th e
Tribunal re fe rre d to A rtic le k6 of the Hague P ecu latio n s, and did not
mention A rtic le 50***

V III. Hie Exaction of C ollective P en alties

In the charge dealing w ith the exaction of c o lle c tiv e p en alties th e
Indictment alleged th a t the Germans pursued a system atic policy of in f lic tin g ,
in a ll the occupied co u n tries, "co llectiv e p e n a ltie s, pecuniary and
otherwise", upon th e population fo r acts of in d iv id u als fo r which i t could
not be regarded as c o lle c tiv e ly resp o n sib le. This was done in many places,
including Oslo, Stavanger, Trondheim, and Rogaland. Sim ilar instances
occurred in France, among others in Dijon, Nantes, and as regards the
Jewish pop-.ila t ion in the occupied t e r r i t o r i e s . The to ta l amount of fin e s
imposed on French communities adds up to 1,157*179*34 fran c s. This charge
vas based on Art cle 5 of th e Hague Regulations.***
In addition to what has already been said in Sections IV and VII

* Tne Judgment, pege

** Ib id ., page 5.
*** The Indictm ent, pages 26-27.

/regerding
E/CiJ.Vtf.l9
Page 66

rogerding the bearing of A rtic le 50 on the questions of taking hostages

and of exact-ing r e p r i s a ls , i t i s to be observed th a t, in s p ite of a general,
wording oS th e f i r s t paragraph of th e above charge, e l l instances enumerated
in the l a t t e r ere so lely confined to c o lle c tiv e p e n alties of a pecuniary
n atu re.
This p a rtic u la r type of a ct is not s p e c ific a lly enumerated in
A rtic le 6 (b) of th e Charter as c o n stitu tin g a war crime, while in the
general p e rt of the Judgment th e re i s no reference to th is charge.

T . Forcing c iv ilia n s of occupied t e r r i t o r i e s to sweer

alleg ian ce to a h o s tilo power
In resp ect of the above th e follow ing charge was included in the
Indictm ent: "C ivilians who Joined the Speer Legion, as s e t fo rth in
paragraph (E) above, ware req u ired , under th ro a t of depriving them of food,
money and id e n tity papers, to swear a solemn oath acknowledging unconditional
obedience to Adolf H itle r , th e Fhrer of Germany which was to them a hostile
power.
"In L orraine, c i v i l servants were obliged, in order to r e ta in th e ir
p o sitio n s, t o sign a d e cla ra tio n by which they acknowledged th e 're tu rn of
th e i r country to th e R eich ', pledged themselves to obey without
reserv atio n s the orders of th e ir ch iefs and put themselves 'a t th e active
service of th e Fhrer and th e great n a tio n al S o c ia lis t Germany*.
"A sim ilar pledge was imposed on A lsatian C iv il Servants by th re a t
of deportation or internm ent. >
"These a cts v io la te d A rtic le ^5 of the Hague R egulations, 1907, the
laws and custans of war, the general p rin c ip le s of in te rn a tio n a l law and
A rtic le 6 (b) of the C harter."*
A rtic le 45 of the Hague Regulations provides th a t i t is forbidden to
fo rce th e in h ab itan ts of occupied te r r it o r y to swear allegiance to the
h o s tile Power. This ru le is based on th e p rin c ip le th a t since the authority
of the occupant is not sovereignty, the in h ab itan ts owe no temporary
allegiance to him. This p rin c ip le does not, of course, prejudice another
p rin c ip le , according to which th e in h ab itan ts have to render obedience and
to submit to th e le g itim a te command!, of th e occupant. In p a rtic u la r, the
Occupant c&c sucual, J - k u . iiO.-.'. of occu^ed tervltory
euch obedience as may be necessary fo r th e se c u rity of h is fo rc e s, fo r the
maintenance of law and order, and the proper adm inistration of the country.

* TI10 Indictm ent, page 28.

/ i t i s pointed

 e / ct .Ij-Am ?
P-iffs 59

I t is pjini&d out th a t th is p a rtic u la r type of v io la tio n cf the rig h ts

rf the in h a b ita rts is not s p e c ific a lly enumerated in A rtic le 6 of the
C-wtoj na o.' \i -itu tla g a war crimo. th e Tribunal did not nahe any
o b s e r / a r i o a ir reelin g t i l s hi:id of v io la tio n , from which i t vould appear
prima fa c ie cant i t decided to disregard th is charge. This seems to "be
ccrro.or-it ;C by the fa c t th a t in i t s general statement on the law re la tin g
to va crims.-- i i general tho Tribunal did not mention A rcicle <;5 of the
Hague Regulations among fliese provisions cf In te rn a tio n a l Lav under which
the crimes do/inod by A rtic le 6 (b, of the Charter "vero already recognized
S3 var c rin u s'1.*

a, Germ anlzatioa of occupied t e r r i t o r i e s

Tne Indictment alleged v ia t in c e rta in occupied t e r r i t o r i e s purportedly
uxaa::ei to Germany tho defendants m ethodically and pursuant to plaa
endeavoured to assim ilate those te r r i t o r i e s p o litic a lly , c u ltu ra lly ,
r.ocidly and economically in to the German Reich. "The defendants endeavoured
to oblitorafco the former n a tio n a l ch aracter of th ese t e r r i t o r i e s . In
pursuance of those p ie rs and endeavours, th e defendants fo rc ib ly deported
inhabitants who were predominantly non-German and introduced thousands of
German colonLsts". According to the charge th is plan included economic
domination, physical conquest, in s ta lla tio n of puppet Governments, purported
le jure annexation and enforced conscription in to the German Armed Forces.
a Indictment sta te d th a t these acts v io la te d A rtic le s 43, 46, 55 and. $6
of the Hacue R egulations, and A rticle 6 (b) of the C harter.**
Tho Indictment then enumerated, by vay of example, a number of actu al
facts and fig u res resp ectin g th is type of war crime.
Apart from seme quite General references to the German policy of the
Geraanization end colonization of c e rta in occupied t e r r i t o r i e s , the Tribunal
in i ts enoral sectio n mal:es no observations on th is p a rtic u la r s e t of
violations of the rig h ts of the c iv ilia n populations which f a l l w ithin th e
very involved notion of denationalization.***

D. Summary Observations
Against th e background of th e h is to r ic a l events which lea to the
establishment of the In te rn a tio n a l M ilita ry Tribunal a t Nirriberg ve have
described in th e preceding sec- ions th e more important stages of the
derolorment of the notions of var crimes and crimes against humanity, the
legal basic of th e T r ia l and the T rib u n al's J u ris d ic tio n . These sections

* See the Judgment, pa 54; and th e Section of th is Report dealing with

the J u ris d ic tio n of the Tribunal (Part I , Chapter I , Section B).
** The Indictm ent, pages 28-29.
*** See also Section I , 1. (Genocide).
/which
e/ ci: -9
Pace 70

which, os i t would appear, c o n stitu te to a la rg e extent Independent chapters,

were o rig in a lly w ritte n as ports of a more ambitious scheme intended to cover
tho li'a_Tiborg i? ria l. However, th e lim ita tio n s of time imposed during the
work have only allowed th is task to be accomplished incom pletely, both as
regards the various aspects and th e elab o ratio n of many problems a risin g
from th is t r i a l which are of v ^ .u l importance fo r th e purpose of the present
Report.
When discussing the law of th e C harter, on the b a sis of which the
Tribunal had to determine the re s p o n s ib ility of the defendants, we pointed
out th a t the sp ec ific ru le s re la tin g to war crimes and crimes against
humanity have a special bearing on the p ro tectio n of human rig h ts , fo r they
rep resen t a system of provisions which, i f properly developed, would lead to e
b e tte r p ro tectio n of fundamental human rig h ts and minimum human standards
in time of war and peace.
I t has been sta te d th a t the sp e c ific ru le s contained in A rtic le 6 of
the Charter ore, te c h n ic a lly speaking, the law which the Signatories of
the Agreement of Q August 19^5, required the Tribunal to adm inister, and
by which the Tribunal was bound. I t has been shown th a t the l a t t e r considered
i t s e l f bound by the C harter, the making of which was an exercise of the
sovereign le g is la tiv e power by th e countries to which Germany unconditionally
surrendered. But h is merely te ch n ica l statem ent cannot he regarded as
complete because i t leaves open th e questions whether th e authors of the
Charter were J u s tif ie d in s ta tin g th e law as they did, and whether th is
statem ent of the lew was merely a d e claratio n of already e x istin g International
Law or the c re atio n of novel ana previously unknown p rin c ip le s. In the
view of the Tribunal the Charter was not an a rb itra ry exercise of power on
th e p a rt of the v ic to rio u s n atio n s, but th e expression of in te rn a tio n a l lav
e x istin g a t th e time of th e creatio n of th e C harter, and to th a t extent was
i t s e l f a contrib u tio n to In te rn a tio n a l Lav.
In order to t e s t the a sse rtio n th a t the Charter is merely declaratory
of in te rn a tio n a l la v as i t ex isted a t the time of the T rib u n al's creation, ve
have examined separately the two groups of offences, relev an t to the subject
of th is Report, which have been declared crim inal by the C harter. We have
examined in p a rtic u la r whether the war crimes w ith which the defendants
were charged c o n stitu te d crimes under In te rn a tio n a l Law a t the time when,
i t was alleged, they were committed. For th is purpose, i t was also
necessary to consider the sp ec ific charges which were brought against tho
defendants.
So f a r as concerns war crimes in th e narrower sense, to which these
remarks are confined, they have long been tre a te d as crim inal acts for which
/members
 BANT, 107.19
Page 71

timbers of the armed forces or c iv ilia n s engaged In Ille g itim a te warfare

ere held Individually responsible by the enemy. In th is regard, and
especially in the cane of v io latio n s of the Hague Convention iv of 1907
and the Genova Conventions, there is no doubt th a t such crimes are war
crimes under in te rn a tio n a l customary law.
In the past there have been hundreds of cases in which n atio n al
m ilitary Tribunals have trie d and convicted enemy n atio n als of breaches of
the laws of war, so th a t the only novelty, so f a r as the Nrnberg- Tribunal
is concerned, is th a t i t was an in te rn a tio n a l Tribunal. The only objection
to an in te rn a tio n a l Tribunal is a th e o re tic a l one, namely, th a t ouch a
Tribunal is inoapable of applying the in te rn a tio n a l laws of war to
individuals, because in te rn a tio n a l law is binding only on the S ta te s as
auch, and th a t only an individual S ta te can th erefo re punloh the offender.
I t has been shown what was the a ttitu d e o f the Tribunal in regard to
this p a rtic u la r question. The c o rre c t ar.over seems to be th a t a v io la tio n
of the laws of war co n stitu te^ ooth an in te rn a tio n a l and a n atio n al crime,
and is th erefo re Ju stic ia b le both in a n atio n al and In te rn a tio n a l court,
From the examination of the problem I t appears th a t th e Tribunal made
a true and o o rrect statem ent in a ss e rtin g th a t the law re la tin g to war
crimes, as expressed by the C harter, waB an expression of In te rn a tio n a l
law e x istin g a t the time of i t s c re a tio n . I t may be added th a t the
Judgment ltB o lf is a contrib u tio n to in te rn a tio n a l law to the ex ten t to
which i t is d eclaratory of in te rn a tio n a l law, and to which the Tribunal
has made I t s e l f cm Instrument fo r d eclarin g p re -e x istin g law.
Like any other c o u rt, the Tribunal was o f course e n title d to consider
the law of war as a dynamic body, which by "continual adaptation fo llo v s
the needs of a changing world". Therefore, the Tribunal was n o t, and did
not consider i t s e l f , lim ited to leaving th is law exactly where i t found
It. The a ttitu d e of the Tribunal in th is re sp ec t has been described, as
far as the circumstances perm itted, in Section C. We have trie d to
show th e re in the manner in which the Tribunal applied th is law, and the
effect which i t gave to i t in regard to various v io la tio n s of human rig h ts .
In applying the p re -e x istin g law, the Tribunal made two in te re stin g
decisions of a general nature which are of p a rtic u la r Importance to the
protection of human rig h ts in /Lme of war. The f i r s t of these concerns
the e ffe cts of the annexation of a te r r ito r y in time of war on the crim inal
character of actB indicated as crimes under the C harter. The second concerns
the v a lid ity of th is law fo r the p ro tectio n of the rig h ts of the inhabitant*
of the occupied te r r ito r y who, owing to sp e c ific circum stances, found
themselves on the te r r ito r y of the occupant.
/CHAPTER I I
 e / cv1i-/w.19
Page 72

CHAPTER I I - TES TOKIO TRIAL

At tho time of w ritin g of th is Report end of i t s submission to the

United R ations, the T ria l of tho Japanese major war crim inals e t the
In te rn a tio n a l M ilitc ry Tribunal in Tokyo (h e re in a fte r co lled Far Eastern
Tribunal) i s s t i l l in progress.
The unprcdictablo developments of th e T ria l in regard to th e numerous
questions which w ill have to be considered by th e Tribunal before i t passes
i t s f in a l v e rd ic t (judgment), make i t useless to submit an account based
among other sources of inform ation, cn th e tra n s c r ip ts cf tho proceedings
up to d a te. U n til the conclusion of th e T ria l a l l th a t can be u sefu lly
done in to e s ta b lis h , w ith regard to th e humen rig h ts involved, the fie ld
covered by tho Indictment o ' th e prosecuting body end by th e Charter of the
Tribunal (h e re in a fte r c a lle d Far E astern or Tokyo C h arter).
The two above-mentioned sources of inform ation contain, es w ill be
seen in th subsequent pages, c e rta in fe a tu re s which J u s tif y us in concluding,
even a t th is stage o f the T r ia l, th a t i t must be d istinguished from any
previous t r i a l . The importance of these fer.tures cannot be underestimated
so f a r as concorns tho development of in te rn a tio n a l law in the f ie ld of
p ro te c tin g human r ig h ts . On ' -0 othor hand, th e Indictment provides a clear
survey of the scope o f the T ria l as a whole and of th e various questions which
a re , or micht bo, important from th e viewpoint of human r ig h ts . F in ally , the
Far Eastern Charter i s a d e fin itiv e source of inform ation as to the lavs
covering human r ig h ts , in so fa r as they have been v io la te d by tho commission
of acts declared crim inal by th e C harter.
I t is in vie\: of these fe a tu re s th a t i t was f e l t more appropriate to
submit an account of the Tokyo T ria l, however incomplete, then to emit i t
alto g e th er Bnd postpone i t s p resen tatio n u n til th e T ria l i s concluded.

/A. LEGAL BASIS CF 3

 E/ciT.tyw.l9
Page 73

A. LEGAL BASIS OF THE TOKYO TRIAL

The t r i a l against the Japanese major war crim inals opened on

29 A pril l'jh-6, in Tolcyo "before the In te rn a tio n a l M ilitary Tribunal fo r the
Far East (h e ie in a fte r c alled Far Eastern T ribunal). At the time of the
vritiiig of th is Report the t r i a l is s t i l l in procress.
A t o t a l of tw enty-eight persons were in d icted fo r crimes against peace,
war crimes and crimes against humanity, a l l of whom occupied a t one time or
another key p o sitions in the conduct of Japanese p o litic a l and m ilita ry
a ffa irs.*
The chargos submitted against th e tw enty-eicht defendants include plans
and preparations to wage aggressive wars as fa r back as in 1928, and the
series of actu a l m ilita ry aggressions th a t took place s ta r tin g from the
attack on Manchuria in 1931*
A ll the v io la tio n s of human rig h ts alleged were planned and/or a ctu a lly
perpetrated in connection w ith, or in the course o f, those aggressions by
means of numerous offences c o n stitu tin g "war crimes" and "crimes against
humanity".
Proclamation of the Supreme Commander
The Far E astern Tribunal was c o n stitu ted by a Special Proclamation issued
on 19 January 19^6, by General D. MacArthur in h is capacity a Supreme
Commander fo r the A llie d Powers.
In issu in g the Proclamation the Supreme Commander exercised concurrently
the following powers:
(a) The powers conferred upon him by the President of th e United S tates
of America as Commander in Chief of the Army and Wavy;
(b) The powers deriving from h is designation by a l l the Powers a llie d
in th e Far E astern war as Supreme Commander fo r theee Powers with the

* The name3 of end l a s t p o sitions held by the tw enty-eight defendants are as

follows: Sadao ARAICE, member of the Cabinet Advisory Council;
Konji DOHUIARA, Inspector General M ilitr;'- Training; Kingoro HASHIMOTO,
Member of the Lower House of the D iet; Shunroki HATA, Inspector General
M ilitary Education; K iichiro HIRANUMA, President Privy Council;
Koki E3GTA, Member of the Cabinet Advisory Council; Naoki EOSHINO,
Adviser to Finance M inistry; G eishiro ITAGAKI, Commander Japanese Army
in Korea and 7th Area Army in Singapore; Okinori KAYA, D irector I.R .A .P .S .;
Koicki KEDO, Lord Keeper of the Privy Seal, chief c o n fid e n tia l adviser
to the Emperor; K eitaro KIKURA, Commander Japanese Army in Burma;
Kuniaki KISO, Prime M inister; Iwane IIAT5UI, President of the G reater East
Asia Development Socioty; Yosuke MATSUCKA, Foreign M inister; J ir o MINAMI,
Member of th e Frivy Council President of th e P o litic a l A ssociation of
Great Japan; Akira IIUTO, CL.cf of S ta ff lUth Area Army, Philippines;
Osami NAGANO, Supreme Naval Adviser to th e Emperor; Tokasumi CKA, Vice
Navy M inister, Commander of th e Naval S ta tio n a t Chinkai (Koree);
Shumei OKAVA, an organiser of th e Mukden in cid en t, D irector General East
Asia Research I n s titu te of the South Manchurian Railway; H iroshi 0SHI1IA,
Ambassador to Germany; Kenryo SATO, Chief of M ilita ry A ffairs Bureau, War
M inistry; lionoru CHIGEMITSU, Foreign M inister; Shigetano SHIMADA, Chief of
Naval General S ta ff ; Toshio SIHRATOP.I, D irecto r, I.R .A .P .S .; T eiichi SUZUKI,
Cabinet A dviser, D irecto r of I.R .A .A .; Shigenori TOGO, Foreign M inister;
Eidoki TOJO, Prime M inister and War M inister; Y oshijiro UMEZU, Chief of
General S ta ff , /g en eral ta sk of
 e / cn.U/w.19
Page 7k

General ta sk of carrying in to e ffe c t the surrender of th e Japanese

armed fo rces;*
(o) The pavers vested in him "by th e Governments of th e United States,
Great B rita in and the Soviet Union, a t th e ir conference held i n Mobcot

on 26 December 19^5, to issue a l l orders fo r the implementation of the

Terms of Surrender of Japan. This was done in agreement w ith the
Chinese Government.**
In add itio n , and w ith sp ecial regar* to the c o n stitu tio n a l position
created w ithin Japanese te r r it o r y a f te r th e c a p itu la tio n , th e Proclamation
was based on the express provision of th e Instrument of Surrender th a t the
a u th o rity of the Emperor and of th e Japanese Government was mede subject to
the Supreme Camender fo r th e A llied Powers, who was empowered to take all
steps th a t he saw proper to implement th e terms of surrender.***
F in a lly , the Proclamation was issued in execution of th e sp ecific term
of surrender la id down a t Potsdam on 26 July 19^5, th a t n6 tem Ju stice shall
be meted out to a l l war crim inals" and w ith reference to repeated statements
made to the seme e ffe c t by th e A llied Nations during the wer.****
The Far E astern Tribunal wes thus se t up by an act of executive'power,
which d istin g u ish es i t from th e establishm ent of the In te rn a tio n a l Military
Tribunal fo r the Prosecution and Punishment of the Major War Criminals of
the European Axis (so -c alled Nrnberg T ribunal), which was co n stitu ted by
means of an in te rn a tio n a l agreement signed fo r the purpose by the Powers
c oncerned.****
The Charter
The composition, J u ris d ic tio n , powers and ru le s of procedure of the
Far E astern Tribunal were reg u lated by a C harter, approved and enacted by the
Supreme Commander in the said Proclamation.******
This C harter i s in every resp ect sim ilar to th e one enacted fo r the
Nrnberg T ribunal,jand a l l points of in te r e s t a ris in g from i t s provisions
w ill be considered in other relev an t p a rts of th is R eport.

#Parograpli 9 of the Special Proclamation of the Supreme Commander for the

A llied Powers e sta b lish in g an In te rn a tio n a l M ilita ry Tribunal fo r the .Far
E ast, Tokyo, 19 Janucry 19^6.
#* See Proclamation, paragraph 6.
*** See paragraph 10 of th e Terms of Surrender, Department of S tate B ulletin,
Vol. X III, 116. 3l0> pages 137-138. Also paragraph k of the Proclamation.
**** See Prcclamtion, paragraphs 1 and 2.
***** Sec page 33
****** The C harter attached to the Proclamation of 19 January 19^6, was subsequent!
emended by General Orders No. 20 of 26 A pril 19k6. The items emended are
recorded in the appropriate p erts of th is Report.
/ Composition of the
 E/CN.^Af.l9
Page 75

Composition of the Far Eastern Trlbufll

Under A rtic le 2 of the C harter, the Far Eastertl Tribunal is composed
of not lees than six , nor more then eleven members.* Members are appointed
by the Supreme Commander from the names submitted by the S ignatories to the
Instrument of Surrender** and, in addition to t h is , by the Governments of
India and of the Commonwealth of th e Philippines.***
The t r i a l opened w ith nine Judges from the following countries:
A ustralia, Canada, China, France, Netherlands, New Zealand, Union of Soviet
S o cialist Bepublics, United Kingdom and United States.****

B. JURISDICTION GF TEE FAB EASTERN TRIBUNAL

Significance fo r human rig h ts
The question of the law under which th e defendants at the Tokyo T ria l
are being held responsible fo r crimes v io la tin g human r ig h ts , is of primary
importance fo r the major purpose of th is Report. This answers the question
to what extent and in vhat way human r ig h ts , v io la te d by meant of war crimes
in the wider sense, are or are not covered and protected by ru le s of
contemporary in te rn a tio n a l la v .
In th is respect the prcvlaltQ * of th e Far Eastern C harter, lik e those
of the Nrnberg C harter, represen t a p o sitiv e step forward in the development
of in te rn a tio n a l law. They have accomplished a c e rta in amount of c o d ific a tio n
in the f i e l d of war crimes, and they have expressly sp ecified the various
punishments which in te rn a tio n a l courts of law are e n title d to pronounce fo r
the commission of these crim es. P rio r to th is step , most of the ru le s
re la tin g to war crimes were uncodified and formed p a rt of customary law, as
Is s t i l l th e case w ith many other branches of in te rn a tio n a l law. As a
consequence, the questions of th e law to be applied and of th e punishment
to be imposed had to be determined e n tire ly by th e courts on the b a sis of
customs and precedents.
I t should be noted th a t, however important and usefu l i t may be, th is
development represents the f i r s t attempt of i t s kind and th a t i t embraces
a much wider f i e l d of crim inal offences than was generally understood to
exist p rio r to th e T rials a t Tokyo and Nrnberg. This fa c t makes i t equally

* O riginally th e Tribunal was to be composed of from 5-9 members, the l a s t

figure being intended to coincide with the number of S tates which signed
the Instrument of Surrender.
** The S ignatories are: United S ta te s of America, China, Great B rita in , Unior
of Soviet S o c ia lis t Republics, A u stra lia, Canada, France, Netherlands,
New Zealand.
*** The rig h t of these two Nations to nominate candidates vae introducedbr the
said rmo:idjacnt3 and the maximum number of judges raised from 9 to 11
accordingly.
**** Thoir names are: S ir William F. Webb (A u stra lia ), president of the Tribunr
E. S tu art McDougall (Canada); Ju-Ao-Mei (China); Henri Bernard (France);
Bernard V ictor A. Rocling (N etherlands); Erima Harvey N orthcroft (Now
Zealand); I . M. Zoryonov (USSR); Lord P atrici; (United Kingdom)
John P. Higgins (U.S.A.) /im portant
E/CN.*t/w.l9
Page 76

important to consider the meumer In which th e Far E astern Tribunal applied

the re le v an t provisions of th e C harter, namely, whet e ffe c t i t gave those
provisions in the various cases brought before i t fo r t r i a l . For reasons
sta te d in th e Introduction to th is Chapter, consideration of th is aspect
has had to be postponed u n til such time as the 'Arial is ocmpleted and the
Judgment pronounced.
The provisions of the Charter
The following i s on account of the re le v an t provisions of the Far
E astern C harter, They are commented upon in comparison w ith those of the
Nrnberg Charter and only t o th e extent to which they d if f e r from the latter,
w ith which they are Id e n tic a l in substance. An an aly sis of the scope, nature
and significance of tho corresponding ru le s in the Nrnberg Charter is to be
found in the preceding Chapter and applies equally to th e ru le s of the Far
E astern C harter.
A rtic le 1 of the Far E astern Charter declares th a t the Tribunal was
"estab lish ed fo r the Ju st and prompt t r i a l and punishment of th e major war
crim inals in th e Far E ast".
The substantive law fo r th e prosecution and punishment of the defendants
tr i e d a t Tokyo is formulated in A rtic le 5 of the C harter. Alle A rticle lays
down in the follow ing terms th e ru le s of law governing th e Ju risd ic tio n of
the Par E astern Tribunal:
"A rtic le 5 J u ris d ic tio n over Persons and Offences
"The Tribunal s h a ll have the power to tr y and punish Far Eastern
war crim inals who as individuals or as members of organizations ore
charged w ith offences which include Crimes against Peace.
The following a c ts , or any of them, are crimes coming w ithin the
J u ris d ic tio n of the Tribunal fo r which th ere s h e ll be individuel
re s p o n sib ility :
(a) Crlaos Against Peace: Namely, the planning, preparation,
in itia tio n or waging of a declared or undeclared war of aggression,
or a war in v io la tio n of in te rn a tio n a l law, tr e a tie s , agreements
or assurances, or p a rtic ip a tio n in a common plan or conspiracy for
the accomplishment of any of th e foregoing;
(b) Conventional V.Tar Crimes: Namely, v io la tio n s of the laws and
customs of war;
(c) Crimes Again s t Humanr'ty: Namely, murder, extermination,
enslavement, dep o rtatio n , and other inhumane acts committed before
or during the war, or persecutions on p o litic a l or r a c ia l grounds
in execution of or in connection w ith any crime w ithin the
ju ris d ic tio n of the Tribunal, whether or not in v io la tio n of the
domestic law of the country whore perp etrated .
/Leaders, organizers,
 e / cn.V w. 19
Page 77

Leadera, organizers, in s tig a to rs and accomplices p a rtic ip a tin g in

the form ulation or execution of a common plan or conspiracy to commit
any of the foregoing crimes are responsible, fo r a l l acts performed by
any person in execution of such plan."*
Comparison with the Nrnberg Charter
In s p i r i t the aforequoted ru le s are in harmony v ith and a re p lic a of
the corresponding provisions of th e Nrnberg Charter (A rticle 6),** However,
there are c e rta in verbal d ifferen ces which ra is e in te re s tin g points in regard
to the u n ity and c la r ity of substantive in te rn a tio n a l penal law.
(i) Crimes against peace
The bearing which "crimes ag ain st peace" as defined in the above A rticle
have upon v io la tio n s of human rig h ts can be summed up in the following manner:
On the one hand, the re la tio n s h ip between the two is one of cause
and e f f e c t. V iolations of human rig h ts with which we are concerned in
th is Report are those which were porpetrated as a consequence of the
aggressions c o n stitu tin g World War I I . On the other hand, th e crimes
which were or are being prosecuted before the Tribunals a t Tokyo and
Nrnberg, were prosecuted on the ground th a t they were p a rt of the
planning or conspiracy to wage wars of aggression.***
Finally, "crimes against peace", taken in themselves are v io la tio n s of the
fundamental rig h ts of S ta te s and N ations. Bights such as the rig h t to
independence or to t e r r i t o r i a l in te g r ity which are recognized to a l l
self-governing n a tio n al communities and which ore d ire c tly affected by
"crimes against peace", are a p re -re q u isite fo r a f u l l exercise of individual
human rig h ts w ithin the borders of th e S tate and accordingly from p a rt of
human rig h ts in a w ider, non-technical 6ense.****
TCiis intim ste connection between "crimes against peace" and v io la tio n s
of human rig h ts varrar.ts the importance of analysing the ru le s of law s e ttin g
for the le g a l elements of the former.
The point ra is e d by the d e fin itio n of "crimes against peace" in the Far
Eastern Charter i s th e follow ing:

* The provisions of A rtic le 5 were not affected by the amendments to the

Charter introduced by General Orders Ho. 20 of 26 A pril 19k6.
** Soo page 26, a lso page 29 e t seq. fo r the analysis of the provisions of
the Nrnberg Charter corresponding to those of the Tokyo C harter.
*** For the Tokyo T r ia l, see Indictm ent. Counts 37-38 and hk. See also
page 98 n .l fo r the ru lin g made by the Nrnberg Tribunal th a t a "plan
or conspiracy" c o n stitu te s a separate crim inal offence only in respect
of "crimes ag ain st peace".
**+* See also pages 38-39*
/fahereas the^
E/C N .V w.1 9
Page 78

Whereas th e Nrnberg C h erter d e c la re s th e "waging of a war of aggression"

t o he a c rim in a l a c t w ithout inching re fe re n c e to o r drawing a d is tin c tio n
between wars launched w ith or w ithout a proper " d e c la ra tio n " , th e Far Eastern
C harter s p e c if ic a lly t r e a t s as c rim in a ls th e "waging of a d e c la re d or
u n declared war o f a g g re ssio n " . (A rtic le l) (a ))
The e f f e c t o f th e l a t t e r d e f in itio n i s to make i t e x p re ssly c le a r that
t o d e c la re w ar, as re q u ire d by th e e x is tin g T r e a tie s , - namely, w ith th e Hague
Convention f o r th e P a c ific S ettlem en t o f I n te r n a tio n a l D isputes of I99 and
1907 and w ith th e accompanying Convention r e l a t i v e to th e Opening of
H o s t i l i t i e s , - does not depriv e such e. war of i t s c rim in a l n a tu re i f i t is
" a g g re ssiv e " .
In t h i s connection i t i s im portant t o note t h a t th e d iffe re n c e between
th e two C h arters i s p u rely v o rb a l, in th e sense t h a t th e F ar E a ste rn Charter
fo rm u lates a r i l e which I s im plied in th e d e f in itio n given in th e Nrnberg
C h a rte r,
While o m ittin g to s ta t e t h a t a "d eclared " war of a g g ressio n i s criminal
i n th e same way as an "undeclared" war, th e Nrnberg C h srto r n e v erth ele ss
re g a rd s as d e c is iv e th e f a c t t h a t a war was " a g g re ssiv e " . From t h i s i t follows
t h a t any o th e r elem ent lin k e d up w ith th e "ag g ressio n " - such as th e existence
o r n o n -e x isten c e of a d e c la ra tio n i s to be reg ard ed as in c id e n ta l, and as
ir r e le v a n t f o r th e c rim in a l n a tu re o f th o a g g re ssiv e war in i t s e l f , In other
words, th e elem ent o f "aggressio n " i s made e s s e n t i a l , b u t i s a t th e same tine
in i t s e l f s u f f i c i e n t .
C onsequently, a l l we a re co n fro n ted w ith h ere i s a d iffe re n c e in leg al
te c h n iq u e ; i n th e F a r E a s te rn C harter th e irre le v a n c e o f a " d e c la ra tio n " of
war i s e s ta b lis h e d in ex p ress term s; in th e Nrnberg C h arter th e same re su lt
i s achieved by th e way o f em ission.
I n t h i s connection i t i s convenient t o p o in t ou t t h a t i t i s p re c ise ly
in th e irre le v a n c e o f a d e c la ra tio n o f war t h a t l i e s th e main fe a tu re of the
development o f in te r n a tio n a l law as fo rm u lated i n th e two c h a r te r s and as
e s ta b lis h e d by th e Judgment o f th e Nrnberg T rib u n a l. P r io r t o th e signing of
th e K ollogg-B riand P act o f I 928 and t o th e i n te r p r e ta tio n o f i t s meaning in
in te r n a tio n a l law by th e Nrnberg T rib u n a l,* no v io la tio n o f in te rn a tio n a l
* C onsidering th o le g a l e f f e c t of th e I'ello g g -B rian d P a c t, th e Tribunal made
th e fo llo w in g d o c isiv e statem en t in i t s Judgment: "The n a tio n s who signed
th o P act o r adhered t o i t u n c o n d itio n a lly condemned re c o u rse to war fo r the
futur as an in stru m en t of p o lic y , and e x p re ssly renounced i t . A fter the
sig n in g o f th e P a c t, any n a tio n r e s o r tin g to war as an instrum ent of national
p o lic y b reak s th e P a c t, In th e o p in io n o f th e T rib u n a l, th e solemn
re n u n c ia tio n o f war as an in stru m en t of n a tio n a l p o lic y n e c e s s a rily involves
th e p ro p o s itio n t h a t such a war i s i l l e g a l i n in te r n a tio n a l law; and that
th o se who p lan end wage such a w ar, w ith i t s in e v ita b le and t e r r i b l e
consequences, arc ccm m ittir.r a crime in doing s o . Ve r f o r th e solution of
in te r n a tio n a l c o n tro v e rs ie s undertaker, as an in stru m en t of n a tio n a l policy
c e r ta in l y in c lu d e s a war o f a g g re ssio n , end such a war i s th e re fo re outlawed
by th o P a c t." Seo Judgment, H.M.S.O., Cmd. 696h, London, page 39< Ita lic s
sire in tro d u c e d .
/la w could be
 e /CN.V w.19
Page 79

law could "bo claimed once a war had been launched in compliance v ith the
conventions re fe rre d to above, however degressive such a war might have been.
Today, the p o sitio n is in a sense reversed. Ho compliance with these
conventions can confer le g a lity to a war which is aggressive.
Yet, however c le a r th is issue may be, th ere remains the tech n ical aspect
which is not unimportant. In form ulating ru le s of in te rn a tio n a l law as they
develop in an uncodified system with a l l th a t such a situ a tio n im plies,
p a rtic u la rly w ith the co-existence of T reaties which are or which might be
regarded as c o n flic tin g , i t is undoubtedly preferable to proceed by means
of express terms ra th e r than by way of im plication. In th is resp ect the
definition of "crimes against peace" in the Par E astern Charter i6 a good
instance.
Before closing th is paragraph, i t may be observed th a t the Nrnberg
Tribunal did not enter in to the question of "declared" and "undeclared"
wars, probably fo r the very good reason th a t a l l vers waged by Nazi Germany
were in fa c t both aggressivo and launched without d ecla ra tio n s. The Tribunal
contented i t s e l f by ascertain in g th is fa c t in each case,* and proceeded
directly cn the grounds of such concrete circumstances,
(ii) V7ar Crir.es
Sim ilar v erbal d ifferen ces appear in th e d e fin itio n of "conventional war
crimes" or "war crimes" in the narrower, te ch n ica l sense. In A rticle 5 (b)
of the Far Eastern Charter th is d e fin itio n is lim ite d to the general statement
that "conventional war crimes" rep resen t "v io latio n s of th e laws or customs
of war". In A rtic le 6 (b) of th e Nrnberg Charter a sim ilar statement** is
followed by an extensive enumeration of sp e c ific offences c ite d exempli causa
as representing "war crimes" and "v io latio n s of tho laws and customs of war".
I t i s hardly necessary to point out th a t here again th e re is no
difference in th e substance, and th a t A rtic le 'j (b) of th e Far Eastern Charter
covers exactly tho same f ie ld as A rtic le 6 (b) of the Nrnberg C harter.
However, so f a r a6 the c la r ity and c e rta in ty of in te rn a tio n a l penal law
are concerned, i t is th e technique chosen in th e Nrnberg Charter which has
the advantage.
(iii) Crimes against humanity
F in a lly , th re e other d ifferen ces should be noted in regard to the
definition of "crimes against humanity" which, combined w ith the d e fin itio n of
"vr.r crimes", cover the main ground of v io la tio n s of in dividual human r ig h ts .

* See Judgment, H.II.S.O., Cmd. 696h, London, page 17 and the following,
p a rtic u la rly pages 36- 3.
** In tlie Nrnberg C harter tho word "conventional" does not appear. This term
is intended to underline th a t offences rep resen tin g "war crimes" are
contained in in te rn a tio n a l conventions ( tr e a tie s ) .
/(a ) In the Far Eastern
 E/CN.Vw.19
Page 80

(n) In th e Ear Eastern C harter, I t is not expressly sta te d th a t "crimen

against humanity" are crimes committed "against any c iv ilia n population";
those terms were in serted in th e Nrnberg Charter c h iefly w ith a view to
including crim inal v io la tio n s of human rig h ts p erp etrated by the Nazi
regime against th e ir own c itiz e n s . However, in the context of the
provision taken as a whole, th ere is l i t t l e doubt th a t the same field
is covered by the Far Eastern C harter.*
(b) In the Far Eastern Charter th ere is no statem ent on "persecutions
on re lig io u s grounds", possibly because such v io la tio n s by the Japanese
major war crim inals were n o n -ex isten t, so th a t to have mentioned them
in the Charter would have served no p ra c tic a l purpose. On the other head,
the relev an t provision covers the same f ie ld aG the Nrnberg Charter in
regard to the comparatively more important "persecutions on p o litic a l
or r a c ia l grounds". In th is connection i t may be assumed th a t, in case
any persecutions on re lig io u s grounds should be e stab lish ed and brought
forward in the course of the proceedings, they could e a s ily be included
w ithin the notion of persecution on p o litic a l grounds. Ihe example of tht
poreocution of Jowo in Nazi Germany, which n o tivated th e express reference
to persecution on re lig io u s grounds in th e Nrnberg C harter, is a case
in p o in t. Persecutions of th is n atu re, embracing communities or groups
of individuals akin on account of th e ir re lig io n , are always carried out
in pursuance of a " p o litic a l" programme and a d e fin ite " p o litic a l" aim
so th a t in th a t general and wide sense they ore in v ariab ly of a
" p o litic a l" n a tu re .
(c) F in a lly , the te x t o f the Far E astern Charter did not give rise to
any d ifferen ces of opinion as to the e ffe c t and meaning of the definition
of "crimes against humanity" in A rtic le 5 (c) when such crimes are
committed before the outbreak of war. As reported in another connection,
in the case of the Nrnberg Chartor the o rig in a l te x t made i t necessrry
to replace a aeol-colon by a comma botwean the two main typos, of offences
defined as representin g "crimes against humanity", a speciel Protocol
fo r th is purpose having been signed between the Powers concerned.**
The te x t of the Far Eastern Charter was from th e o u tset clear on the
point th a t, to c o n stitu te "crimes against humanity", not only acts representin'
"persecutions on p o litic a l, r a c ia l or re lig io u s grounds," but also acts
co n sistin g in "murder, exterm ination, enslavement, deportation" or any other
"inhumane a c t" ,' must have been committed in execution of or in connection with
any other crime w ithin the J u ris d ic tio n of th e Tribunal. This moons
p a rtic u la rly in execution of or in connection with "crimes against peace".***

* For more d e ta ile d consideration on th is p o in t, see pages 97*99

See page 92 tt2
See a lso pafO 3^
/ Conclusion as to tm
 e/ cn.V w*19
Page l

Conclusion as to the ju ris d ic tio n over offences

I t is thus possible to conclude th a t th e d ifferen ces appearing in the
texts of A rtic le s 5 and 6 of the tvo Charters are purely verbal and th a t
they do not a ffe c t the substance of the law governing the ju ris d ic tio n of
the Far E astern trib u n a l over crim inal offences in comparison w ith the
Nrnberg Charter#
However, i t would appear th a t such d ifferences in te x ts of law dealing
with subjects of the same nature and enacted separately only fo r reasons of
geographical ond executive convenience are lia b le to create un certain ty and
even confusion in regard to the law in th e spheres concerned. In th e in te re s t

of the p ro te c tio n of human r ig h ts , such verbal d ifferen ces should, whenever

possible, be avoided in fu tu re .
A rtic le 5 of th e Far Eastern Charter covers the whole f i e l d of human
rights which were or can be v io la te d by th e crim inal offences re fe rre d to in
its provisions. D e tails concerning th e sp e c ific human rig h ts thus covered
are iven in t)ie various p a rts of th is Report, and a general survey is
submitted in th e Conclusions.
Ju risd ictio n over persons
Closely connected w ith the ru les of substantive law providing fo r
criminal v io la tio n s of humen rig h ts in the Far E astern C harter, are th e ru le s
dealing w ith the re s p o n s ib ility of the p erp etrato rs of such offences.
In lin e with the Nrnberg Charter, the Far E astern Charter contains in
the f i r s t place the provision already c ite d , th a t th e Tribunal has "the power
to try and punish For E astern war crim inals, who as in d iv id u als or as members
of organizations aro charged with offences which include Crimes against Peace".
The scope of the individuals comprised is defined in the l a s t provision of
Article 5 which declares the re s p o n s ib ility of "leaders, organisers,
in stig ato rs and accomplices" in addition to the actu al p erp etrato rs of these
crimes.*
In th is connection another ru le provides fo r th e degree of re sp o n sib ility
of the individuals involved, in th e follow ing term s: (A rticle 6)
"Neither the o f f ic ia l p o sitio n , a t any tim e, of an accused, nor the
fa c t th a t an accused acted pursuant to order of h is government or of a
superior s h a ll, of i t s e l f , be s u ffic ie n t to fre e such accused from
re s p o n sib ility fo r any crime with which ho is charged, but such
circumstances may bo considered in m itig atio n of punishment i f the
Tribunal determines th a t ju s tic e so re q u ire s."
This provision corresponds to A rtic le s 7 and 8 of th e Nrnberg Charte'.-,
which have been analysed in another p art of th is Report.**

* See page 77.

0 ce pages ^0-h2
/Both Charters
 e / cn. u/ w.19
Pago 82

B oth C h arters decide upon two fundam ental q u e stio n s, one in view of the
n o v e lty of tr y in g in d iv id u a ls f o r "crim es a g a in s t peace", and th e other in
re g a rd t o th e u n c e rta in ty of th e r u le s of in te r n a tio n a l law .
They proclaim th e eq u al r e s p o n s ib il ity o f a l l in d iv id u a ls involved,
ir r e s p e c tiv e o f:
(a) The o f f i c i a l p o s itio n h e ld by th e o ffe n d e rs . (The Nrnberg Charter
s p e c if ic a lly in c lu d e s heads of S ta te s and re s p o n sib le o f f i c i a l s of the
Governments);
(b) The f a c t t h a t th e o ffen d e r may have a cte d upon su p e rio r orders.
The d iffe re n c e between th e two C h arters i s th a t th e F a r E a ste rn Charter
re co g n izes as one of th e circum stances p e rm ittin g m itig a tio n of punishment
%
th e o f f i c i a l p o s itio n of th e accused, whereas th e Nrnberg C h arter excludes
t h i s p le a end admits only th e f a c t of having a cte d upon su p e rio r o rders,*
As f a r as ru le s of law e re concerned, th e p ro v isio n d e c la rin g the
irre le v a n c e of th e o f f i c i a l p o s itio n of th e defendants c u ts acro ss a question
f o r which th e re were no r u le s in in te r n a tio n a l law b e fo re th e t r i a l s at
Nrnberg arid Tokyo, althov.gh attem p ts were made t o in tro d u ce th e p rin cip le
a f t e r th e f i r s t w orld w ar.** The p ro v isio n i t s e l f 6 e lo g ic a l consequence
of th e r u le t h a t a g g re ssiv e wars are crim es in v o lv in g in d iv id u a l penal
r e s p o n s ib il ity , ru le which th e Nrnberg T rib u n al q u a lif ie d as d eclarato ry
of tho s ta t e which had e x is te d a t any r a t e sin ce th e K ellogg-B riand Pact.***
The r u le concerning o ffen ces committed upon s u p e rio r o rd e rs decides a
q u e stio n concerning which r u le s o f in te r n a tio n a l low were n o t s u ffic ie n tly

* See Nrnberg C h a rte r, A rt. 3: "The o f f i c i a l p o s itio n of defendants

w hether as Heads of S ta te o r re s p o n sib le o f f i c i a l s in Government
D epartm ents, s h e ll n o t be co n sid ered as f r e e in g them from re s p o n s ib ility
o r m itig a tin g punishm ont". Compare w ith A rt. 6 o f For E a ste rn C harter,
above.
** The attem pts re fe rre d t o concern th e case o f th e K a ise r. In i t s Be port of
1919, th e Commission on r e s p o n s i b i l i t i e s ex p ressed th e view th a t penal
l i a b i l i t y f o r v io la tio n s o f th e laws end customs of war should include
a l l persons "however h ig h t h e i r p o s itio n may have been, in clu d in g ChiefB
of S ta te s " .
In t h i s connection th e A llie d Powers in s e r te d in th e V e rs a ille s Treaty
ex press p ro v isio n s d e c la rin g th e r e s p o n s ib il ity o f th e K aiser fo r violations
of in te r n a tio n a l lew and provided f o r a penal c o u rt to t r y him. (See
A rt. 227 o f th e V e r s a ille s T re a ty ). As i s known th e se measures never
m a te ria liz e d end no Ju risp ru d en ce has e v e r been formed on th e su b ject.
*** See above, page 78 n . l .

/p r e c is e and which
 E /C H .V V i.19
Page 83

precise end which consequently required to "be s e ttle d one way or another.*
Prom the viewpoint of the human rig h ts of th e individuels involved in
war crimes t r i a l s , both ru le s f a l l w ithin the f ie ld where the rig h ts of the
victims of war crimes and those of the persons accused of committing them
nay c o n flic t. This, however, only a ffe c ts the sentence to be pronounced by
the co u rte.
This aspect of the problem is considered in a separate chapter, which
deals w ith the question of the extent to which the r e s tr ic te d rig h t of an
accused person to plead Hot G uilty on the b a sis of h is o f f ic ia l p o sitio n
or his having committed v io la tio n s of human rig h ts under superior orders,
may lead to the accused person being e ith e r acq u itted or v is ite d with
reduced penalty.
Criminal organizations
F in a lly , i t is to bo noted th a t the Par Eastern Charter does not contain
a special provision empowering the Tribunal to declare th a t a group or
organization is crim inal, as in the case with A rtic le 9 ctf the Nrnberg
Charter.** The Par E astern Charter fo llo v s the l a t t e r only in enunciating
the general p rin c ip le th a t the Tribunal is competent to tr y and punish war
criminals "who as individuals or as members of organizations" are charged
vith crimes against peace, war crimes or crimes against humanity.*** The
sim ilarity between the two Charters in th is resp ect does not go beyond th is
point.

* The un certain ty of in te rn a tio n a l law on th is issue is emphasized by

a u th o rita tiv e w rite rs . See, fo r in stan ce, H. Lauterpacht, The Law of
Nations.and the Punishment of Uar Crimes, B ritish Year Book of
In te rn a tionel. Law, 1944, page 69 and follow ing. This s itu a tio n is
connected w ith wide divergences e x istin g in the municipal law of various
countries dealing w ith laws and customs of war. (See Lauterpacht, lo c . c i t .*
and even w ithin the scope of th e municipal law of a single country. A case !
in point concerns the B ritis h M ilitary Manual and the U.S, Rules o f Land Warfai ?
U ntil 1944, and including the period of 1914-1919, both te x ts contained
express provisions to the e ffe c t th a t m ilita ry personnel committing
violations of th e ru le s of warfare upon superior orders "are not war crimino-t
and cannot th e re fo re be punished by the enemy". In 1919 the Commission on
R esp o n sib ilities adopted an opposite a ttitu d e , and in 19^4 the provisions
of the B ritis h M ilitary Manual and the U.S, Rules of Land Warfare were
amended and the ru le of imp-unity reversed to allow punishment. For te x ts
see below pages 221 and 22 k.
Before the amendments were made English w rite rs contended th a t th e Chapter
concerned (XIV) of the B ritis h M ilitary Manual had no s ta tu to ry force,* th a t
its provisions r e la tin g to the plea of superior orders were at variance with
the corresponding p rin cip les of English crim inal and c o n stitu tio n a l law; and
that i t represented an exposition of ru le s of in te rn a tio n a l law only as
understood by one country. Gee Lauterpacht, op, c i t . page 66, n. 1, and
and page 69, n . 2.
** Geo pages kO and 44-1*5.
*** Par E astern C harter, A rtic le 5> paragraph 1. The corresponding te x t in the
Nrnberg C harter (A rticle 6, paragraph 1) reads "The T rib u n a l.. .s h a ll have t i
power to tr y end punish persons who, acting in th e in te re s ts of the European
Axis c o u n trie s, vhother as indiv id u els or es members of organizations,
committed any of th e follow ing crim es". Then follow the d e fin itio n s of
crimes against peace, war crimes and crimes against humanity. /n~ ^
E/CH.U/w.19
Page 84

Ae a lo g ic a l outcome, th ere 1 b also no provision such a s A rticlo 10

of the Nrnborg C harter. The l a t t e r p rescribes th a t when an

organization is declared crim inal by the Tribunal, i t s members can be
tr i e d by n a tio n a l, m ilita ry or occupation courts fo r membership in
such organizations, and th a t in such cases the crim inal nature of the
organizations involved is considered proved and cannot be questioned
by the other courts*
In th is manner the whole question of the so -called co lle ctiv e
re s p o n s ib ility fo r war crimes has been l e f t out of the Far Eastern
C harter, p a rtic u la rly the question of the presumption of g u ilt of
those individuals who belonged to groups o r organizations declared
crim in al.
I t b a m atter o f opinion whether the Far E astern Tribunal could
a v a il i t s e l f o f the same powers as those oxprossly provided fo r in
the Nrnberg C harter, using as a le g a l b a sis the general provision
in A rtic le 5 of the Far E astern C harter, paragraph 1, th a t i t is
competent to t r y individ u als g u ilty of war crimos "as members of
org an izatio n s". I f one is to take the vlow th a t the Tribunal can
have no other powers than those expressly conferred upon i t by the
C harter, the answer would be in the negative.
Should th is be th- c o rre c t answer, the general provision of
A rtic le 5, paragraph 1, would have no oth er meaning and consequence
than to in d icate a purely fa c tu a l s itu a tio n . Namely, th a t individuals
tr i e d by the Tribunal can be prosecuted with p a rtic u la r reference to
th e ir having belonged to a group or organization involved in the
e o m issio n of the alleged crim es. This p a rtic u la r connection would
have no le g a l consequences. I t would remain e n tir e ly in the sphere
o f f a c t as a more sp ec ific d e sc rip tio n of circum stances, ro la tin g to
war crim inals whoso g u ilt would be esta b lish e d so le ly on the b a sis of
crimes committed in th e ir in d iv id u al cap acity .

C. TEE VIOLATIONS OF TEE RIGHTS CF THE VICTIMS OF VAR CRIMES

1. HUMAN RIGHTS VIOLATED BY "WAR CRIMES"
The Indictm ent submitted to the Far E astern Tribunal covers f i r s t
o f a l l tho w orst and most b r u ta l types of v io la tio n s o f human rig h ts,
i . o . v io la tio n s d ire c ted ag ain st the l i f e , h ealth and bodily in te g rity
of tho v ictim s. These v io la tio n s rep resen t c le a r "war crimes" in the
tr a d itio n a l sense of the term and cover a se rie s of a tr o c itie s and other
offences of an undisputed crim inal ch aracter, which have been

* For t o r t o f A rtic le 10 o f tho Nrnberg C harter see p. >'.

/punishable
 E/CN.V w. 19
Page 85

punishable by the laws of c iv iliz e d nations fo r many c e n tu rie s. They

cover the rig h ts o f the three most important categories o f victim s as
recognized by the laws and customs c f war: the rig h ts of combatants,
of prisoners of war and o f the c iv ilia n p o p u latio n .
The charges brought ag ain st nineteen o f the tw enty-eight defendants
by the prosecuting body in i t s Indictm ent, were formulated in a
statement o f a general nature, in the following terms:
"(The defendants) p a rtic ip a te d as le ad e rs, organizers,
in s tig a to rs o r accomplices in the form ulation o r execution
o f a common plan o r conspiracy, and aro responsible fo r a l l
a c ts performed by themselves o r by any person in execution
o f Buch plan.
The ob ject of such plan o r conspiracy was to order,
authorise and perm it . . . subordinates frequently and
h a b itu a lly to commit the broaches of the Laws and Customs
of War . . . ag ain st the aimed forces . . . and ag ain st many
thousands o f prisoners of war and c iv ilia n s .. . " *
The defendants concerned were accordingly charged w ith having
c arried out such a plan or conspiracy by a c tu a lly ordering,
authorizing o r perm itting breaches of the laws end customs of war.'**
In add itio n , they were charged w ith having " d elib erate ly and
reck lessly disregarded th e ir le g a l duty to take adequate steps to
secure the observance and prevent breaches" of the laws and customs
of war,*** c a rrie d out by th o ir subordinates.****
Some concrete instances of such v io la tio n s of human rig h ts o f the
victims o f vox crimes were b r ie f ly mentioned in connection with tho
various stages o f the aggression ag ain st China, such a s, fo r example,
the "deliberate k illin g " o r "slaughtering*' o f "large numbers" and
"many thousands" o f c iv ilia n s on tho occasion of the capture of Nanking
and Canton in 1937, and o f other teams and Inhabited places in I 938
i:.d I 9IA.*****

* See Count 53.

** See Count 5^.
*** See Count 35.
**** The question to what ex ten t these a c ts rep resen t separate
substantive crimes, d is tin c t from a c tu a l war crimes cammittod
as a r e s u lt of a "plen o r conspiracy*', o r o f the ordere,
a u th o rity and permission to p erp etrate them, or fin a lly as a
consequence o f the fa ilu re to prevent them from occurring,
i s considered l a t e r ,
***** See Indictm ent, Appendix A, Section 2.
/On the
e /CN.4AM9
Page 86

On. tho o th er hand, the prosecutors summed up in general terms a

so rie s of other v ar crimes p erp etrated over the whole period of tho
aggressive wars waged hy Japan a g ain st the various co u n tries involved.
Express reference was made to the "ru th le ss submarine w arfare" conducted
by the Japanese Navy and to the "d estru ctio n o f crows o f Bhips sunk or
captured" pursuant to such a w arfare.* Many types o f crim inal
offences a c tu a lly committed were enumerated in connection w ith the
breaches o f e x istin g conventions and assurances: the k illin g and
ill-tre a tm e n t of p riso n ers o f war end c iv ilia n inmates o f concentration
campsj the i l l e g a l use of p riso n er o f war labour; the use of poison
gas; the k illin g o f combatants who had la id down th e ir arms; the
d estru ctio n o f property w ithout m ilita ry ju s tif ic a tio n o r necessity;
p illa g e ; the fa ilu re to re sp ec t fam ily honour and rig h ts , individual
l i f e , p riv a te property and re lig io u s convictions and worship in
occupied t e r r i t o r i e s ; the deportation and enslavement o f the inhabitants
o f occupied te r r i t o r i e s ; the fa ilu re to resp ect m ilita ry h o sp ita l
ships,** and the lik e .
2 . AITEMFT TO INTRODUCE NEW TYPE OF INTERNATIONAL CRIME
Apart from these c la s s ic a l types o r categories o f crim inal
offences committed in v io la tio n of the laws and customs o f war, the
prosecuting body introduced a sp ec ia l category as to which i t 6an be
sa id th a t i t has no p a r a lle l in the Nrnberg o r any o th er t r i a l held
so f a r , and which, should i t be adm itted by the Far E astern Tribunal,
vould be e n tire ly new in in te rn a tio n a l law.
The prosecuting body charged the defendants w ith the lo ss of lif e
(" k illin g " nnd "murder) o f tho combatants of a number o f attacked
countries aB a d ire c t r e s u lt o f the m ilita ry operations w ith which
Japan opened the h o s t i l i t i e s ag ain st these c o u n trie s. The charge was
based upon the f a c t th a t Japan " in itia te d unlawful h o s t i l i t i e s " in
v io la tio n of A rtic le 1 o f the Hague Convention re la tiv e to the
Opening of H o s tilitie s , th a t is to say w ithout a warning o r a
d ecla ra tio n of war. The prosecutors submitted the argument th a t
such opening of h o s t i l i t i e s being "unlawful", the accused and the
Japanese armed forces "could no t acquire the rig h ts o f law ful
b e llig e re n ts " . Accordingly, the k illin g o f servicemen on the
occasion of these treacherously opened h o s t i l i t i e s was regarded by
the prosecutors as rep resen tin g a separate crim inal a c t deriving from

* See Indictm ent, Appendix A, Section 7*

** See Indictm ent. Appendix T\ Sections 1-19.
/th e unlawfulness
 e / cn . u/ w.19
Page 87

the unlawfulness of the attack s themselves.*

S pecific charges which were btought forward in th is connection
include the k illin g of Admiral Kidd and about 4,000 members of the
U.S. ITavy and Army on the occasion of the a tta c k on P earl Harbour on
7th December, 1941;** the k illin g of B ritis h o ffic e rs and so ld iers
during tho a tta c k on Kota Bahru, Hong Kong and Shanghai on
8th December, 1941;*** the k illin g of the servicemen of the
P hilippine forceB w h ilst invading the P hilippines te r r it o r y on
8th December, 194l;**** the k illin g of servicemen o f the Union of
Soviet S o c ia lis t Republics and Mongolia on the occasion of the
aggressions waged ag ain st them in the summer o f 1939 w h ilst these
two countries were neutral.*****
J o in tly w ith these cases charges were submitted fo r a tr o c itie s
against the c iv ilia n population and the priso n ers o f war ("disarmed
s o ld ie rs ) ****** committed in the course of sim ila r a ttack s and
aggressions, p a rtic u la rly ag ain st China.
A ll these charges were grouped a p art from the sectio n dealing
with "conventional war crimes and crimes ag ain st humanity", and
tre a te d under tho heading "Murder". In th is sectio n they were
described as representing "a t the same time Crimes a g ain st Peace,
Conventional Far Crimes, and Crimes ag ain st Humanity".*******
Leaving aside the purely te ch n ica l question whether charges fo r
a tr o c itie s p e rp etrated against, " c iv ilia n s and disarmed so ld ie rs" ought
not to have been included in tho sectio n dealing w ith war crimes and
crimos ag ain st humanity***xh ra th e r than in the sectio n headed

* So, f e r instance, in the f i r s t Count of th is p a rtic u la r

section of the Indictment, the prosecutors charged the
defendants with having p a rtic ip a te d in a "plan or conspiracy",
the object of which was to " k ill and murder the persons
described below, by in itia tin g unlawful h o s t i l i t i e s . . . The
persons intended to be k ille d and murdered were a l l ouch persons,
both members of the armed f o r c e s ... and. c iv ilia n s , as might
happen to be in the places a t the times of such a tta c k s. The
said h o s t i l i t i e s and a ttack s wore unlawful because they wore
breaches of Treaty A rtic le 5 in Appendix B, and the accused
and t h e ... armed forces of Japan could not th erefo re, acquire
the rig h to of law ful b e llig e re n ts " . See Indictm ent. Count 37,
The Treaty A rtic le re fe rre d to is A rtic le I of the Hague
Convention re la tiv e to the Opening of H o s tilitie s .
** See Count 39.
*** See Counts 4o, 4 l and 42.
**** See Count 43.
***** See Counts 51 and 52.
****** see Counts 45-50.
******* See Group Two, Introductory paragraph and Counts 37-52.
******** s ea Group Three, Counts 53-55.
/"Murder",
L/CH.VW.19
Page 88

"Murder", a prosecution fo r the lo ss of the liv e s o f combatants during

m ilita r y operations i s undoubtedly a novel attem pt to develop to the
utmost the le g a l consequences which follow lo g ic a lly from the fa c t
th a t to open h o s t i l i t i e s w ithout a d e claratio n o f war i s a breach of
e x istin g T reaties and consequently represents an i l l e g a l a c t in
in te rn a tio n a l law.
The novelty co n sists in qualifying th is i lle g a l a c t as being a t
tho same time a crim inal a c t, and accordingly, in regarding combatants
who lo s t th e ir liv e s during m ilita ry operations as victim s of war crimes.
Tills attem pt is the more s ig n ific a n t in th a t id e n tic a l a c ts
committed by Germany on the occasion of every aggression launched by the
Nazis in Europe, wore not prosecuted before the Nrnberg Tribunal.
I t remains to be seen whether the above mentioned charge made in
Tokj-o w ill ho accepted by the Far E astern T ribunal, I f so, th is
would rep resen t a fu rth e r development of the laws o f war. At th is
stage of tho Tokyo T ria l i t is s t i l l - d i f f i c u l t to see c le a rly a l l the
elements which would compose th a t development. They could, however, be
te n ta tiv e ly described as follow s;
The lo ss of liv e s in f lic te d upon the m ilita ry personnel of a
n a tic n attacked w ithout a d e claratio n of war would he a crime in
i t s e l f , presumably on account o f the f a c t th a t such members o f the
forces were unprepared to meet a m ilita ry a tta c k from the adversary.
The reason fo r adm itting the element o f unpreparedness as relev an t
vould c o n sist in the f a c t th a t, in the absence of warning, the members
o f the attacked armed forces had no chance to fig h t and did not lose
th e i r liv e s in a f a i r c o n test o f fo rc e . To deprive them o f th e ir
liv e s under such circumstances would be tantamount to sheer
murder and th erefo re crim in al. The course which could then
be taken i s an a lte rn a tiv e one. One might la y down as a le g a l
presumption th a t in the absence o f a d e cla ra tio n o f war the armed
forces o f the attacked n atio n are to be deemed unprepared in a l l
cases; o r, on the o th er hand, one might Judge each case upon i t s own
m e rits, i . e . whether the attack ed armod forces were in f a c t ready to
meet the aggression o r n o t.
Judging upon, and w ith in the lim its o f, the concrete instances
f o r which the Japanese war crim inals were in d ic te d , the crim inal
nature o f such a c ts would in e ith e r case be r e s tr ic te d to the period
o f the opening o f h o s t i l i t i e s , i . e . to the period during which i t is
J u s tifia b le to consider th a t the armed forces of the attacked nations
were taken unaware and could not th erefo re undertake the re q u isite
/operations
 E/CU.+/W.19
Pag 89

operations to engage in regular combat v ith the aggressor. The k illin g

of combatants of the attacked nation a f te r the period of surpriso and
unproparodness had elapsed would not rep resen t a crime.
Although lim ited to the i n i t i a l stages of a war, the above
charge opens a much wider question in connection w ith the le g a l argument
on which the prosecutors founded th e ir indictm ent. The argument c o n sists
in the contontion th a t, in view of the unlawful opening of h o s t i l i t i e s ,
tho defendants did not and "could not acquire the rig h ts of law ful
belligerents". I f th is is to be taken as fundamental fo r the charge,
i t could a t the same time be said th a t once the aggressors had acted in
such a way as to be deprived o f tho "rig h ts o f law ful b e llig e re n ts " ,
they remain in the same le g a l p o sitio n throughout the whole period of war,
and nothing subsequent to en "unlawful" a tta c k can make the war i t s e l f
"law ful". Hie lo g ic a l consequence would be th a t the k illin g of any
combatant of tho attacked nation committed a t any time during the
aggressive war, is crim inal.
I t i s not in the le a s t suggested th a t th is view should be adopted
in any future system of tho laws of war, nor th a t i t should be discarded.
But in view of the course taken by the prosecution in Tokyo, the
question has been ra is e d , and should be answered one way o r another,
p a rtic u la rly in regard to tho lo g ic a l consistency o f the comparatively
novel rulo according to which a war i s crim inal much more, i f not
solely, on the b a sis th a t i t i s aggressive than on the b a sis th a t i t
was launched w ithout a d ecla ra tio n o f war.
3. HUMAN RIGHTS VIOLATED OH LIABLE TO EE TREATED AS VIOLATED
BY "CRIMES AGAINST HUMANITY"
The prosecutors a t the Tokyo T ria l d e a lt w ith a number o f offences
-..\.ich throw lig h t on the v io la tio n and p ro te c tio n o f c e rta in human
rig h ts o f p a rtic u la r in te r e s t both in time o f war and peace.
(a) One o f these offences a ffe c ts the rig h t to h o alth and to l i f e .
I t concerns the i l l i c i t t r a f f i c in r.arco--ics, and more p a rtic u la rly
in opium. In the d esc rip tio n o f fa c ts and circumstances relev an t
to prove in te r a l i a the planning, p rep aratio n and waging of
unlaw ful wars, the prosecutors made reference to the following
events:
"During the whole period covered by th is Indictm ent,
successive Japanese Governments, through th e ir m ilita ry
and naval commanders and c iv ilia n agents in China and
o th e r t e r r i t o r i e s which they had occupied or designed
to occupy, pursued a system atic p olicy o f weakening
/th e native
 e / cn.V 'M 9
Page 90

the native in h a b ita n ts' w ill to r e s i s t . . . by encouraging

lneroased production and im portation of opium and other
n a rc o tics and by promoting the sale and consumption of
such drugs among such -people".*
The prosecutors went on to describe how the Japanese Government
s e c re tly provided larg e sums o f money fo r th is purpose, how i t
used the proceeds o f the t r a f f i c in n a rc o tics to finance aggressive
wars, and how i t conducted these il l e g a l a f f a ir s through
governmental channels and o rganizations.**
The main le g a l p o in t made by the prosecutors in th is respect
vas th a t the harm in f lic te d upon the c iv ilia n populations concerned
ims in v io la tio n of e x istin g T re a tie s, which were a l l re fe rre d to
errore ssly.*** This case could be regarded as rep resen tin g one of
the "inhumane a c ts" f a llin g w ithin the notion o f "crimes against
humanity", as defined in A rtic le 5 (c ) o f the Far E astern Charter,
(b) Another group of offences a ffe c ts the p o l i t i c a l or civ ic
rig h ts of the c itiz e n s of Japan i t s e l f . I f th e ir crim inal nature
i s recognized by the Tribunal they would a lso f a l l w ithin the
notion o f "crimes a g ain st humanity" and be q u a lifie d as crimes
p erp e tra ted in the r e la tio n between a S ta te (Japan) and i t s own
c itiz e n s .
In the d e sc rip tio n of relev an t events attached to the
main body o f the Indictm ent, the prosecutors described in the
follow ing manner how the " m ilita ris ts " imposed th e ir ru le on
Japan and v io la te d the p o litic a l and civ ic rig h ts o f th e ir
com patriots:
" . . . Free Parliam entary in s titu tio n s as previously existed
wore gradually stamped out and a system sim ila r to the
F a s c is t or Nazi model in tro d u c e d ..."
"...Government agencies . . . stamped out free spoech and
and w riting by opponents of th is po licy . . . Opposition
to th is policy was also crushed by assa ssin a tio n s of
leading p o l i t i c i a n s .. .The c iv il and e sp e c ia lly the m ilitary
police were a lso usod to suppress opposition to the war
p o lic y .
The educational systems, c i v i l , m ilita ry and naval,
wore used to in cu lcate a s p i r i t o f to ta lita ria n is m ,

* See Indictm ent, Appendix A, Section ^ . I t a l i c s are introduced.

** See Indictm ent, Appendix A, Section !*.
*** See Indictm ent, Appendix B, under 10, l 6, 32 and 35
/aggression,
 E/CH .V w.19
Page 91

aggression, d esire fo r war, c ru e lty and h atred of p o te n tia l

enemies."#
Reference was mado to breaches o f the thon binding T reaties
thereby committed, o .g . the reference to A rtic le 22 of the
Covenant of the League of N ations.**
(c) F in a lly , the references made by the prosecutors in the
Indictm ent to a mmber of oth er breaches of T rea tie s give a
h in t of what they apparently intended to develop before the
Tribunal in the f ie ld of v io la tio n s of human r ig h ts . Such,
fo r instance, is the referen ce, already mentioned, to A rticlo 22
of the Covenant which bound mandatory Powers to guarantee in
the mandated te r r i t o r i e s "the p ro h ib itio n of abuses such as the
slave tra d e , the &rm3 t r a f f i c , and the liq u o r t r a f f i c ,
and the prevention . . . of mi l i t a r y tra in in g of the natives fo r
other than police purposes and the defence of te r r ito r y ..." * * *
Another instance is a reference made to A rtic le 3 of the Mandate
granted by the Loaguo o f Nations to Japan in 1920, p ro h ib itin g
slnvo trade and forced labour in the mandated t e r r i t o r i e s . A ll
these offences are in v io la tio n o f the "laws of humanity" and
could be considered as instances of "crimes a g ain st humanity".
In regard to most o f the rig h ts Included in the p a rts o f the
Indictment quoted above under (a ), (b) and (c ), one major question
remains to bo olu.cidc.tod by the Tribunal in I t s Judgment. I t i s the
question whether v io la tio n s o f human rig h ts caused by offences such
a3 the i l l i c i t t r a f f i c in n a rc o tic s, liq u o r o r arms are to be
recognized as being crim inal in themselves and consequently as
en tailin g d e fin ite penal re trib u tio n , o r whether they are to be
tre a ted as lying only w ithin the lim its o f v io la tio n s of in te rn a tio n a l
obligations, allowing o r c a llin g fo r c e rta in sanctions bu t not fo r
thoso p ro n le d by penal law.
M utatis mutandis, the came question ap p lies to v io la tio n s of human
rights committed by the suppression of p o litic a l or c iv ic rig h ts on the
part of a S tate (Government) in regard to i t s ovn c itiz e n s . In th is
case the question is am plified by the issue whether such doings w ithin
the borders o f a S tate c a ll fo r in te rn a tio n a l penal Ju stic e , or merely
for concerted in te rn a tio n a l actio n o f a d iffe re n t n a tu re . By the

* Seo Indictm ent, Appendix Ax Section 6. I t a l i c s are introduced.

** See Indictm ent, Appendix B, under 15*
*** Seo Indictm ent, Appendix B, under 15. I t a l i c s are introduced.
/provisions
e /C II.V w. 19
Page 92

p ro v isio n s of A rtic le 5 (c) and 6 (c) r e s p e c tiv e ly , of th e Tokyo and

Nrnberg C h a rte rs, vhich in tro d u ced th e le g a l concept o f "crimes against
hum anity"*, th e r ig h t of th e in te r n a tio n a l community to conduct crim inal
proceedings f o r "inhumane a c ts committed a g a in s t any c i v i l i a n population,
b e fo re o r during th e w ar," was reco g n ized only inasmuch as such a c ts were
committed " in e x ecu tio n of o r in connection w ith any crime w ith in th e
J u r is d ic tio n of th e T rib u n al",* * p a r tic u la r ly in e x ecu tio n of o r in
connection w ith th e p lanning , p re p a ra tio n , i n i t i a t i o n or waging o f an

* P r io r to th e two C h arto rs i t i s d i f f i c u l t to see to what e x te n t the

n o tio n of "crim es a g a in s t humanity" was used and recognized as a legal
term . I t seems sa fe to assume t h a t u n t i l th a t tim e i t was r a th e r used
in a m oral or p h ilo s o p h ic a l Benee. I n t h i s co n n ectio n , see pages 11-12
of t h i s R eport re g a rd in g the a t t i t u d e tak en by members of th e I 919
Commission on R e s p o n s ib ilitie s as to w hether re fe re n c e should be made to
v io la tio n s of th e "laws and p r in c ip le s of humanity" in connection with
war crim es. The American members objected to making such a referen ce on
th e ground t h a t "lava and p r in c ip le s of humanity" were n o t a universally
recognized stan d ard in in te r n a tio n a l law.

** F o r th e f u l l te x t of A r tic le 5 (c) of th e F a r E a s te rn C h a rte r, see

pages IO5-IO6 . F or t e x t of A r tic le 6 (c) of th e Nrnberg C h arter, see
pages . In i t s Judgment th e Nrnberg T rib u n al e x p re ssly stated
t h a t "to c o n a titu to crim es a g a in s t hum anity, th e a c ts r e l i e d on before
th e outbreak of war must have been in e x ecu tio n o f , o r in connection with,
any orime w ith in th e J u r is d ic tio n of th e T rib u n a l" . See Judgment, H.M.S.
London, page 65, paragraph 5. See a ls o page 3**- of t h i s R ep o rt. This
statem en t c le a r s a u th o r ita tiv e ly a p o in t r a is e d by an amendment introduced
in th e te x t of A r tic le 6 (c) of th e Nrnberg C h a rte r by a s p e c ia l Protocol
signed in B e r lin on 6 O ctober 191*5, between th e fo u r Pc .vers signatories
of the C h a rte r, i . e . n e a rly two months a f t e r th e sig n in g of th e Charter
in London on 8 August 19^5- The s a id P ro to c o l was signed in order to
remove from th e E ng lish and French te x ts a sem i-colon which stood between
tifco two main p a r ts of th e t e x t d e fin in g "crim es a g a in s t humanity" in
A r tic le 6 ( c ) , namely, between th e words " ..b e f o r e o r d u rin g the war",
and th e words "o r p e rse c u tio n s on p o l i t i c a l . . e t c . " in th e E nglish text.
The Bemi-colon was re p la c e d by a comma, ap p earin g in th e R ussian te x t,
and the wording of th e p ro v isio n i t s e l f wbb l e f t unaltered. The French
t e x t hod to be r e - d r a f te d in o rd e r to make c le a r th e is su e a t stake with
th e d e le tio n of th e sem i-colon. The r e s u l t of t h i s amendment was to
make, both ty p es of "crim es a g a in s t hum anity", namely, "murder,
e x te rm in a tio n , enslavem ent, d e p o rta tio n and e th e r inhumane a c ts " on the
one hand, and "p e rse c u tio n s on p o l i t i c a l , r a c i a l o r r e lig io u s grounds"
on th e o th e r hand, punishable under th e term s of th e C h a rte r only if
e i t h e r c f them were committed " in ex ecu tio n of o r in connection with,
any crime w ith in th e J u r is d ic tio n of th e T rib u n a l", i . e . in execution of,
o r in connection w ith , "crim es a g a in s t peace" o r "war crim es". With
th e sem i-colon between th e s a id two p a r ts , and p a r tic u la r ly in the
o r ig in a l wording U3ed in th e French t e x t , th e im pression l e f t was that
t h i s c o n d itio n a p p lie d only to th e p a r t coming a f t e r th e semi-colon, l.e.
to "p erse c u tio n s on p o l i t i c a l , r a c i a l o r r e lig io u s grounds." For the
French t e x t , see page 27 of t h i s R ep o rt.

/aggressive
 e /CD.**AM9
Page 93

accroccive v a r. In i t s Judgment th e Nrnberg Tribunal dismissed the

cace fo r such suppressions of th e rig h ts of German c itiz e n s committed
before th e war, on account of lack of evidence to support th e charge
th a t they were linked up with aggressive wars prepared and waged by
the Nazi Goveruaent.*
Consequently, so f e r the answer seems to be the following:
crim inal proceedings on behalf of th e In te rn a tio n a l community fo r
v io latio n s of human rig h ts comprised in the category of p o litic a l or
civic rig h ts committed w ithin th e borders of a S ta te against i t s
ovn c itiz e n s by executive or le g is la tiv e actio n (so -c alled "crimes
against humanity") are warranted only in connection w ith a war of
aggression planned, prepared, in itia te d or waged by th e sate S ta te .
This a ffirn s the rig h t to in te rn a tio n a l penal ju ris d ic tio n in the
above Get of circum stances, and leaves open th e question of conviction
op the fa c tu a l m erits of the case, as in any other crim inal proceedings.
On th e other hand, no answer is y et av ailab le to the question
whether sim ila r in te rn a tio n a l penal proceedings could be warranted
in time of peace fo r v io la tio n s of an id e n tic a l nature committed
irre sp e c tiv e ly of the planning, preparation or in itia o io r of
aggressive wars.
k. VIOLATIONS CF TEE HUMAN EIGHTS OF VICTIMS IN TEE
TERRITQKY OF NON-BELLIGERENT OR NEUTRAL POWERS
F in a lly , the prosecution included in th u ir indictment war crimes
committed or intended to be committed against individuals located
in the t e r r i t o r y of non-belligeren t or n eu tru al Powers.
This caso concorns te r r i t o r i e s belonging to Portugal and to the
Soviet Union. In th is resp ect th e important point is th a t Portugal
remained n e u tra l throughout the whole period of th e l a s t war and th a t
the Soviet Union entered in to a s ta te of war w ith Japan only on

* See Judm ent, op. c i t . , page 65, paragraph 5. The re le v an t passage

rti-ds as follow s: "The Tribunal is of th e opinion th a t re v o ltin g and
h o rrib le as meny of these crimes were i t has not been s a tis f a c to r ily
proved th a t they were done in execution of or in connection with"
crimes against peace or war crimes. "The Tribunal th e re fo re cannot
make a general d e claratio n th a t the acts before 1939 were crimes
against humanity w ithin the meaning of th e Charter . . . "

/8 August 19^5)
e/ cn.4/ u .19
Page $k

8 August 194-5, ju s t a fow days before Jap an 's c a p itu la tio n .* P rio r to that
date, the Soviet Union and Japan vere linked by a Pact of Non-Aggression
signed on 13 A pril 1941, which represented the le g a l b a sis of th e ir
mutual n e u tra lity in the wars in which they were ro sp ectiv o ly engaged
a f te r tlia t date and u n til the Soviet Union declared war on Japan.
In th e ir chargo re la tin g to war crimes, a p a rt of which was cite d
above**, the prosecutors in d icated the defendants fo r "broaches o f the
Laws and Customs of War . . . ag ain st the armed forces of the countries
h e re in a fte r named and ag ain st many thousands o f priso n ers of war and
c iv ilia n s then in the power of Japan belonging to . . . the Republic of
Portugal and the Union o f Soviet S o c ia lis t Republics ..." * * * Both these
countries were named, w ithout d is tin c tio n , together w ith those a t war
1
w ith Japan, none of which entered in to a s ta te of war with J. pan a t a
date la t e r than 19^1 .***'*
The poriod of time in d icated as re le v a n t to the charges i s the
period between 7 December 1941 and 2 September 19^5.*****
The indictm ent does n et provide a c le a r answer to the question
whether the defendants of the Tokyo T ria l were charged in connection
w ith crimes which wore a c tu a lly committed in Soviet and Portuguese

* The readiness of the Japanese Government to accept the terms of

surrender as la id down in the L eclaratio n issued a t Potsdam on
26 July 1945, was communicated on 10 August 194p. The formal
acceptance of these terms wa3 n o tifie d on l4 August. For the
te x t of both communications see Department of S tate B u lle tin ,
Vol. X III, 19^5, No. 320, page 257~EcT!T7-3 5 r r ^ g i- 555^
** See page 117.
*** See Indictm ent, Counts 53 and 55*
**** These other countries are: China, the U .S.A., the B ritis h Commonvealti
of N ations, comprising fo r the purpose o f the indictm ent (see Count 4),
the United Kingdom, A u stra lia, Canada, New Zealand, South Africa,
In d ia , Burma end the Malay S tates; France; the N etherlands;
P hilip p in es; Thailand. For p a rtic u la rs concerning the dates of the
d eclaratio n s of war between these countries and Japan, Department of
S tate B u lle tin , Vol. X III, 194-5 page 23O-238. For dates concerning
the aggression made by Japan ag ain st the t e r r it o r ie s of those
countries see Indictm ent in i t s va rio u s counts and Appendix A.
***** geo Indictm ent, Counts 53 and 55.

/te r r ito r y ,
 E/ cN.V w.19
Page 95

te rrito ry , or merely fo r having taken p a rt in the preparation of these

crimes.
The defendants were charged fo r a th re e fo ld crim inal a c tiv ity .
(a) For having "p artic ip ate d as lead ers, organizers, in s tig a to rs ,
o r accomplices in the form ulation or execution of a common
plan o r conspiracy", the object of which "was to order, authorize
and perm it" the commission of "the breaches of the Laws and
Customs of War . . . against the armed forces . . . prisoners of war
and c iv ilia n s .*
(b) For having a c tu a lly "ordered, authorized and perm itted"
the Commission of these offences** as a r e s u lt of the said plan
or conspiracy.
(c) And f in a lly , fo r having "disregarded th e ir le g a l duty to
take adequate steps to secure the observance and prevent
breaches" of the laws and customs of war***, "being by v irtu e
of th o ir respective o ffic e s responsible fo r securing the
observance" of tho laws and customs of war.****
Whereas i t is questionable whether the fa c t o f "planning or
conspiring" to commit "war crimes" and "crimes ag ain st humanity "
can be prosecuted as a separate crim inal offence under th e terms of
the C harter, the defendants wero accused o f committing a c ts which
are crim inal under A rtic le 5 irre sp e c tiv e of whether these acts
(giving orders, authorizing or perm itting the Commission of war
crimes; fa ilu re to comply w ith le g a l duty to prevent war crimes from
occurring) m a terialized in a c tu a l war crimes committed in tue f ie ld

* See Indictm ent, Count 53/ i t a l i c s are introduced.

#* See Indictm ent, Count 5k, i t a l i c s are introduced.
*** Here the Indictment sp e c ifie s breaches of "Conventions and
assurances and the Laws and Customs of War".
See Count 55/ i t a l i c s are introduced.
**** goe indictm ent, Count 55.

/o r n ot.#
E/CN.tyv.l9
Pago 96

o r n o t.*
In th is connection concrete instances of crimes p e rp etrated against
n a tio n a ls of several countries which were a t war with Japan in the relevant
period of time (between 7 December 19^1, and 2 September 19^5) were given,
whereas no such cases were produced with regard to Portugal or the
Soviot Union. As regards Portugal, the only fa c t produced was the
invasion of the Portuguese p o rtio n of the isla n d of Timor on
19 February 19^2.#* As to the Soviet Union, reference was made to two
m ilita ry aggressions both of which took place before the beginning
of the relev an t period of crim es. One reference concerns the a ttack
a t Lake Hassan in Soviet t e r r it o r y proper, which took place in 1938.
The other concoms the a tta c k made on the te r r ito r y of the Mongolian
P eople's Republic in 1939 a t the Halkin-Gol R iver, which l ie s outside

* Tho Far E astern Charter mentions "a plan o r conspiracy" as crim inal
in i t s e l f only in regard to "crimes ag ain st peace", and not in
regard to "war crimes" or "crimes a g ain st hum anity'. The p o sitio n is the
same in tho Nrnberg Charter (A rticle 6) . In i t s judgment, the
Nrnberg Tribunal made reference to the f in a l provision of A rticle 6
according to which "leaders, organizers, in s tig a to rs and accomplices
p a rtic ip a tin g in the form ulation, or execution of a common plan or
conspiracy to commit any of the foregoing crimes are responsible for
a l l acts performod by any persons in execution of such p la n ." The
Tribunal declared th a t th is provision did not add any o th er new or
Boparato crime to the three categ o ries s p e c ific a lly defined in A rticle 6,
but was designed only to e sta b lis h the in d iv id u al re s p o n sib ility of
persons p a rtic ip a tin g in a crim inal plan or conspiracy. Consequently,
i t discarded the charge fo r a "plan or conspiracy" to commit
"war crimes" or "crimes ag ain st humanity". (See Judgment, H.M.SO,Cmd.696
London, page 31, and page 39 of th is R eport). According to th is
pronouncement, individual crim inal l i a b i l i t y fo r a "plan or conspiracy"
to commit crimes e x is ts only inasmuch as such plan o r conspiracy is
crim inal in i t s e l f under the respective A rtic le s of the two Charters,
which moans only with regard to "crimes ag ain st peace . This issue
was re c en tly confirmed in one of the subsequent t r i a l s held by U.S.
M ilita ry Tribunals in Nrnberg; see pronouncement made by U.S.
M ilita ry Tribunal No. 1 of 1^ Ju ly 19^7, in Re. U.S.A. versus
K arl Brandt e t a l . , U.N.V/.C.C. Research O ffice, Document No. R7/US/9D.
As to the in d iv id u al re s p o n s ib ility fo r having "ordered, authorized,
or perm itted" the commission of war crimes" or "crimes against
humanity" o r fo r having f a ile d to prevent them from occurring by
v irtu e of the le g a l duty incumbent upon the in d iv id u als concerned,
i t is covered by the above quoted f in a l d isp o sitio n of A rticle 5
of tho Far E astern Charter (A rticle 6 of the Nrnberg Charter)
e sta b lish in g the l i a b i l i t y of "leaders, organizers, in s tig a to rs and
accomplices."
** See Appendix A, Section 10.

/th e territory
 E/CNA/w.19
Page 97

the te r r ito r y of the Soviet Ur.ion but where members of the Bed Army
were involved in combats as A llie s of the Mongolian Republic*.
F in a lly , the Indictment does not provide inform ation a.: to whether,
assuming crimes to have been a ctu a lly p erp etrated in Portuguese and
Soviet t e r r i t o r i e s , th e ir victim s included n atio n als of Portugal and of
the Soviet Union, or whether they were confined to n atio n als of the
countries a t war with Japan a t the re le v an t time, in th is case members
of th e ir armed fo rc e s, combatants or p riso n ers of war.
Had th is inform ation been to hand i t would have furnished a l l the
elements of a complete case regarding war crimes and v io la tio n s of human
rig h ts which a t the time of th e ir commission included the rig h ts *of
nationals of n e u tra l c o u n trie s.
The main fe a tu re of th is p a rt of the Indictment is th a t i t extends
the provisions of A rtic le 5 of the Charter to a c ts which, i f not
actually p e rp etrated , were none the le s s crim inally intended to be
perpetrated ag ain st n atio n als and on the te r r ito r y of countries which,
at the time of the crimes and v io la tio n s of human rig h ts involved, vere
not in a s ta te of war w ith the Power whose n atio n als were held crim inally
responsible fo r the said a c ts .
To form a f in a l conclusion on th is p o in t one w ill, of course, have
to wait u n til the Far Eastern Tribunal pronounces i t s Judgment.
However, the elements provided by the Indictment and the Charter
make i t p o ssib le, even a t the present stage of the T ria l, to draw the
f olloving c onelus ions:
(a) Ereaches of lawk and customs of war accomplished by the
commission of war crimes or by a cts preceding them and c o n stitu tin g ,
as a whole, war crimes, imply th a t a s ta te of war had been created
between two co u n tries. This very s itu a tio n confers upon the ille g a l
acts involved the nature of war crimes. In the absence of a s ta te
of war the same ille g a l a c ts are as a ru le of an equally crim inal
nature, but in law they cannot be q u a lifie d as "war" crimes in the
tech n ical sense.
Yet the prosecutors in Tokyo have expressly included such acts
under the same le g a l q u a lific a tic n as acts representing "war crimes"
in the tech n ical sense in regard to the countries a t war with Japan
a t the relev an t time. The significance of such a method of
procedure w ill be considered la te r.* *

* See Appendix A, Section 8.

** See page 99-tl 2 .

/(b ) No l e g a l
E /C N M M 9
Page 98

(b) No le g a l problem a ris e s in th is resp ect in so far as members

of the armed forces (combatants or p riso n ers of war) of the countries
a t war with Japan are concerned. For breaches of Laws and Customs
of War committed ag ain st them are war crimes, reg ard less of the
te r r ito r y in which they were committed, including t e r r it o r ie s of
n e u tra l S ta te s . Nor, fo r the same reason, does any le g a l point
a ris e in regard to c iv ilia n s , n atio n als of b e llig e re n t powers,
located and victim ized in te r r ito r y belonging to a n e u tra l Power,
p a rtic u la rly when such te r r ito r y is invaded and occupied by the
aggressive Power.
(c) The point concerns only n atio n als of the n e u tra l country
belonging to the c iv ilia n population of the same country.
Under the terms of the Far Eastern Charter the prosecutors were
ju s tif ie d in including a charge fo r crimes committed or directed
against such n a tio n a ls w ithin the framework of a war crimes t r i a l ,
in view of the f ie ld covered by the notion c f "crimes against
humanity" (A rticlo 5(c )). Tho l a t t e r can be, and as a m atter of
fa c t a re , regarded as f a llin g w ithin the concept of war crimes in
a wider, non-technical sense, namely in the sense th a t they are
defined as crim inal a c ts connected in one way or another with a war
of aggression.
A reference to th is l a s t p o in t has already been made* and the
follow ing considerations can now be added to i t :
- "Crimes ag ain st humanity" comprise crimes committed against
any c iv ilia n population, not only in time of war but a lso before
the war. The f a c t th a t they comprise victim s belonging to "any
c iv ilia n population", i.o to the c iv ilia n population of any
country, is expressly s ta te d in the Nrnberg C harter, (A rticle 6(c));
and the f a c t th a t they r e la te to both tho time of war and the time
preceding war i s stre sse d in both the Nrnberg and the Far Eastern
C harter. I t has been pointed out th a t tho omission of the terms
"against any c iv ilia n population" in the Far E astern Charter is
only verbal and th a t i t does not a ffe c t the substance of i t s
A rtic le 5 (c ), which covers the same f i e l d as A rtic le 6(c) of the
Nrnberg Charter**. This follows from the lo g ic a l context of
A rtic le 5(c) of the Far Eastern C harter. The main e ffe c t of
declaring a c ts p e rp etrated "before or during the war" as "crimes
ag ain st humanity" is to make i t irre le v a n t which te r r ito r y or

See page 92-93.

See page 80 under (a ).

/which population
 E/CN.Vw.19
Page 99

which population thus de fa c to victim ized in connection w ith the

preparation or the waging of a war of aggression 6 involved.*
According to the meaning given to the corresponding provision of
the Nrnberg C harter, such crimes include a c ts committed ag ain st
the natio n als of the aggressive S tate i t s e l f in i t s own te rrito ry .* *
From th is i t follows th a t i f the terms "before or during the war"
in the Far Eastern Charter have any meaning, they a t any ra te cover
the population of any foreign country which Japan victim ized or
intended to victim ize in connection with i t s wsr or wars of
aggression. And there is l i t t l e , i f any, doubt th a t they also
cover "crimes against humanity" committed against Japanese n atio n als
in the homeland i t s e l f .
(d) The preceding remarks make i t possible to draw the main
conclusion in connection with th is p a rt of the Far Eastern Indictm ent.
The case brought a g ain st the defendants in resp ect of Portugal
and the Soviet Unioh is an illu s tr a tio n of the fa c t th a t the scope
of contemporary in te rn a tio n a l law providing fo r the punishment of
war crim inals is wide enough to include penal re trib u tio n fo r
v io la tio n s of human rig h ts transcending the notion of war crimes
in the .technical sense. Under the terms of A rtic le 5(c) of the
Far E ste rn Charter a war crim inal can be prosecuted and convicted
fo r v io la tio n s of human rig h ts where th e re was no s ta te of
b ellig eren cy , where the victim s were not n a tio n a ls of a b e llig e re n t
power, and where the v io la tio n s were committed in te r r it o r y of a
n e u tra l Power.
One of the re s u lts of such a development is to make ru le s of
in te rn a tio n a l law applicable in a f i e l d h ith e rto reserved to
municipal law, and p a rtic u la rly in cases where municipal law is
incapable of a sse rtin g i t s e l f on account e ith e r of th e le g a l
p o sitio n involved or of the lack of any p r a c tic a l p o s s ib ility of
enforcing i t s provisions.
This may be regarded as a decisive step forward in widening the
b a sis of both the substantive law and the Ju d ic ia l machinery required
fo r the p ro te c tio n of human rig h ts on an in te rn a tio n a l le v e l.
Yet, however important th is development may be, i t i s , as has
been previously stre sse d subject to a general lim ita tio n in
in te rn a tio n a l law as i t stands a t the present time. I t is lim ited

* See page 35
** See Nrnberg Judgment. H.M.S.O. London, Cmd. 696 b, page 65.

/ t o v io la tio n s
E/Cl.V>M9
Pago 100

to v io la tio n s of human rig h ts which, even though committed outside the

scope of bellig eren cy between the countries d ire c tly involved, were
committed in execution of or in connection with a war of aggression,
l'his is a lim ita tio n which ap p lies to the ru le s e n ta ilin g punishment but
also to those perm itting the use of in te rn a tio n a l penal Ju stic e its e lf .*
In connection w ith the preceding considerations i t is appropriate
to conclude with yet another p o in t of in te r e s t. I t concerns the c la rity
of the law applicable to v io la tio n s of human rig h ts in connection with
war crime.:.
The comparative novelty of c e rta in p ..rts of the law formulated in
the Far Eastern and Nrnberg C harters, and the f a c t th a t they represent
in themselves a p a r tia l and new c o d ific a tio n in the f ie ld of international
penal law which is in the making, give r is e to c e rta in d if f ic u ltie s in
e sta b lish in g a p recise c la s s ific a tio n of a l l the various e ffe c ts of the
law de "eloped and codified in the C harters. This is p a rtic u la rly true in
regard to the drawing of a c le a r lin e between "war crimes" proper on the
one hand and "crimes ag ain st humanity" on the o th er, and in estab lish ing
In a p recise manner the scope of the l a t t e r .
Therefore, when dealing w ith inform ation intended to show to what
ex ten t v io la tio n s of human rig h ts ore or are not covered by e x istin g
in te rn a tio n a l law i t is important to a s c e rta in a t the same time the
d if f ic u l tie s to which the te x t of the law may give r is e .
The le g a l procedure adopted by the prosecutors a t the Tokyo T rial
in re la tio n to the cases concerning Portugal and the Soviet Union, as
o u tlined in the preceding pages is a case in p o in t.
I t has already been mentioned th a t the prosecutors presented the cases
concerning Portugal and the Soviet Union under th e same le g a l qualification
which they applied to offences concerning th e n a tio n a ls of countries at
war w ith Japan a t the re le v an t time.** They did so in th e counts headed
"Conventional war crimes and crimes ag ain st humanity".*** Yet, when
qualifying th e ir charges under th is heading/ they made no fu rth e r
reference to "crimes ag ain st humanity". A ll o ffen ces, including those
concerning Portugal and the Soviet Union, were uniformly q u a lifie d as
representing "breaches of the Laws and Customs of War" or "violations

* See pages 92-93.

** See page 97, under (a ).
*** See Indictm ent. Group Three, Counts 53-55-

/o f the Laws
 E/CK.VM y
Page 101

of the Laws of War",* i . e . as representing only "war crimes" in the

technical sense under the express d e fin itio n of A rtic le 5(b) of the
Par Eastern C h arter.
An explanation fo r such a method of procedure is to be found in the
"Summary" which accompanied the te x t of the Indictment supplied to the
United Nations War Crimes Commission. From th is te x t i t appears th a t the
prosecutors took the view th a t paragraph (b) of A rticle 5 of the C harter,
providing fo r "war crimes" in the tech n ica l sense, was adequate to cover
also charges coming under paragraph (c) deeding with "crimes ag ain st
humanity".**
I t is d if f ic u l t to see how such a method of implementing A rtic le 5
of the Charter can be reconciled w ith the f a c t th a t a t the relev an t
period of time Portugal and the Soviet Union were not a t war w ith Japan. As

* In count 53 the relevant passage reads: "The o b ject of such plan or

conspiracy was to order, authorize and permit the Commanders-in-Chief
. . . and the o f f ic ia ls of the Japanese Uar M inistry, and the persons
in charge of each of the camps and labour u n its fo r p riso n ers of
war and c iv ilia n in te rn e e s . . .and th e ir resp ectiv e su b o rd in a te s...
to commit the breaches of the Laws and Customs of War, as contained
in and proved b y .. .Conventions, assurances and p r a c tic e s .. .ag ain st
the armed fo rc e s ...a n d ag ain st many thousands of p riso n ers of war
and c iv ilia n s then in the power of Japan belonging to the United S ta te s
of America, the B ritis h Commonwealth of Nations, the Bepublic of France,
the Kingdom of the N etherlands, th e Commonwealth of the P h ilip p in es,
the Bepublic of China, the Bepublic of Portugal and the Union of Soviet
S o c ia lis t Bepubllc3. . . "
In Count 5^, the re le v an t passage reads: "(The d e fe n d a n ts)... ordered,
authorized and perm itted the same p e rs o n s ...to commit the o ffe n c e s ...
mentioned and thereby v io lated the laws of w ar."
In Count 55 the relev an t passage is as follow s: "(The defendants)
. . .b e in g .. .responsible fo r securing the observance of the said
Conventions and assurances and the Laws and Customs of War in resp ect
of the armed f o r c e s .. .and in resp ect of many thousands of p riso n ers
of war and c iv ilia n s then in the power of Japan belonging to the
United S tates of America, the B ritis h Commonwealth of Nations, the
Bepublic of France, the Kingdom of the Netherlands, the Commonwealth
of the P h ilip p in es, the Bepublic of China, the Bepublic of Portugal
and the Uhion of Soviet S o c ia lis t B epublics, d e lib e ra te ly and re c k le ssly
disregarded th e ir le g a l duty to take adequate step s to secure the
observance and prevent breaches th e re o f, and thereby v io la te d the lavs
of w ar." ( I ta li c s are Introdu ced ).
** See U.N.W.C.C. document C.197, page 2, l a s t paragraph. The relev en t
paragraph reuds: "Group Three: The charges are la id under paragraphs (b '
and (c) of A rtic le 5 of the C harter, and i t w ill be contended th a t
t aregraph (b) is adequate to cover them a l l . They alle g e conspiracy
o commit and the a ctu a l commission of large numbers of breaches of
the laws and customs of war, contained in or proved by the p ra c tice
of c iv iliz e d nations and the various Conventions governing the conduct
of h o s t i l i t i e s , the treatm ent of priso n ers of war, and of persons and
property in occupied te r r ito r y ." I t a l i c s are introduced.

/alread y
E/CN.Vtoil9
Page 102

already pointed out* i t is the very existence of a s ta te of war which

confers upon the offences involved the nature of "war crimes" as d is tin c t
from other types or categories of crim es. Consequently, in the absence
of a s ta te of war, the offences committed cannot have in law the nature
of "breaches of the laws and customs of w ar". Under the terms of the
Charter the answer is th a t they rep resen t "crimes ag ain st humanity", which
include offences committed before a s ta te of war has a rise n .
The above a ttitu d e is undoubtedly due to the d if f ic u lty of drawing
a c le a r lin e of demarcation between the two cate g o rie s. The d iff ic u lty is
in a way confirmed in the Judgment of the Nrnberg T ribunal. R eferring
to the offences p e rp etrated by the Na2i war crim inals, the Tribunal stated
th a t " ...fro m the beginning of 1939 war crimes were committed on a vast
scale? which were a lso crimes ag ain st humanity."
However, a t the same time the Nrnberg Tribunal s ta te s th a t, insofar
as the inhumane a c ts committed a f te r the beginning of the war "did not
c o n stitu te war crim es, they were a l l committed in execution o f, or in
connection w ith, the aggressive war, and th erefo re c o n stitu ted crimes
ag ain st humanity".**
Thus, the Nrnberg Tribunal esta b lish e d the following d is tin c tio n :
(a) . That there are cases in which "war crimes" are simultaneously
"crimes ag ain st humanity";
(b) That th ere are other cases in which "crimes against humanity"
do not c o n stitu te "war crimes".
The Tribunal did not say in vhat cases and under what conditions or
circumstances "crimes against humanity"are a t the same time "war crimes" and
in what cases they are no t. N evertheless, i t estab lish ed , on the one hand,
the fa c t of the p o s s ib ility of situ a tio n s a ris in g where the two categories
overlap and interm ingle, and on the other hand of s itu a tio n s a ris in g where
they remain d is tin c t and separate.
Without en tering in to the question whether the reason fo r such a close
re la tio n sh ip between the two categories l ie s in the sim ilar nature of the
offences which they are intended to cover, th ere remains th e f a c t th a t the
lav is apparently not c le a r enough to provide a d e fin ite lin e of
demarcation.
On the other hand, the f a c t remains th a t, however clo sely intermingled,
both categories preserve th e ir in d iv id u a lity both in the te x t of the law
and in the sphere of fa c ts as estab lish ed by the Nrnberg Judgment, and
th a t they can never reach the p o in t of being e n tire ly absorbed one by the
o th e r.

* See pages 97-98 , under ( a ) .

** See Judgment, H.M.S.O, Cmd. 696k, page 65. See a lso considerations on
page 2 of th is Report.
/Thus,
 e / ch.^/I/ ,19
Page 103

Thus, three elements a t le a s t lead to the conclusion th a t there Is a

need fo r supplementing and c la rify in g in some way the e x istin g d e fin itio n
of "crimes ag ain st humanity". One is the case concerning Portugal and the
Soviet Union as outlined above; another is the fin d in g s of the Nrnberg
Tribunal; and the l a s t i s the way in which th e prosecutors a t the Tokyo
T rial thought i t appropriate to proceed by way of absorbing one category
into the other in s p ite of the le g a l considerations which p o in t in the
opposite d ire c tio n .

D. SPHERES IN WHICH THE RIGHTS OF THE VICTIMS AND THE RIGHTS

OF THE ACCUSED MAY BE SAID TO HAVE CONFLICTED AT THE
TIME OF THE OFFENCE
The Problem
In the preceding pages information has been compiled regarding the
rights of the victim s of war crimes so f a r as i t is av ailab le in the law
of the Far Eastern Charter and in the indictment submitted to the Far
Eastern Tribunal.
As a m atter of p rin c ip le , the law is applied pursuant to the ru le
that every v io la tio n of human rig h ts e n ta ils personal re s p o n s ib ility by
the p e rp e tra to r and penal re trib u tio n fo r the rig h ts v io la te d . There i s ,
in th is connection, one p a rtic u la r aspect to be considered of the mutual
relatio n sh ip in which the p e rp e tra to rs and th e ir victim s may be placed
at the time of the offence.
The re la tio n sh ip re fe rre d to can be described as one of c o n flic t,
for the following reason:
Persons who v io la te human rig h ts by committing war crimes or crimes
against humanity may have acted as experience has abundantly proved, in
such circumstances or s itu a tio n s th a t th e ir personal g u ilt or l i a b i l i t y
is open to question. One such instance occurs when the p e rp e tra to r has
acted upon orders of h is government or o f any of h is superiors whose
Instructions he is le g a lly bound to obey. Another instance occurs where
the p e rp e tra to r has committed v io la tio n s of human rig h ts w ithin the scope
of so-called "acts of s ta te s " , th a t is to say in performing a function or
duty in the s ta te hierarchy whereby h is p riv a te p e rso n ality is superseded
by his ro le as a servant of the s ta te on whose behalf he is a ctin g . Yet
another instance, which frequently represents only a v a rie ty of the
f ir s t group (v io latio n s committed upon superior orders) ., concerns cases
vhere human rig h ts have been v io lated as a r e s u lt of re p ris a ls conducted
by one b e llig e re n t against another.
In such cases i t is necessary to determine how fa r the p e rp e tra to rs
can be held personally responsible in the circum stances.

/As an illu s tr a tio n

E/CN.Vtf.19
Page lOU

As an illu s tr a tio n of th e complexity of the situ a tio n s which may be

involved the following passages from an analysis by Professor H. Lauterpacht
on the subject of superior orders in the armed forces may be u sefu lly
quoted:
"In Great B rita in and in the United S tates a so ld ie r cannot
adduce superior orders as a circumstance re lie v in g him of lia b ility
fo r an ille g a l a c t. This is a ru le e stab lish ed by a long se rie s of
decisions in-both co u n tries. On the other hand, according to English
law, the so ld ie r is bound to obey law ful orders of h is superiors, and
he is lia b le to punishment by the summary process of a court-m artial
in case of d iso b e d ie n c e .... The r e s u lt is th a t in addition to the
n a tu ra l ris k s of hiB c a llin g , the so ld ie r has, in theory, to face
the dangers of a c o n flic t between h is duty of obedience to orders
and h is duty to obey the la w ... Numerous decisions of courts in the
United S tates recognise th a t w hile, in p rin c ip le , siiperior orders are
not a v alid defence, obedience to an order which is not on the face of
i t ille g a l and is w ithin the scope of the superior o ff ic e r, relieves
the so ld ie r of l i a b i l i t y . .. In England.. , i t is g en erally recognised
th a t the exercise of the rig h t of pardon by the Executive is in such
cases a proper rem edy... Conversely, many countries w hich.. . .have
adopted the ru le th a t obedience to superior orders excludes lia b ility ,
make an exception in cases in which the orders are ille g a l. They,
in tu rn , d iff e r as to the necessary degree of the ill e g a l i t y . The
German Code of M ilita ry Criminal Law, p rio r to the second World War,
provided th a t the subordinate is lia b le to punishment as an accomplice
i f , when obeying an order, he knows th a t the a c t ordered involves a
crime or misdemeanour. According to the law of other s ta te s , the
immunity of the so ld ie r obeying orders ceases i f he knows or ought to
have known of the unlawful nature of the order. There are Indeed some
s ta te s , in p a rtic u la r France, in which there i s , apparently, no
q u a lific a tio n fo r the ru le th a t, in r e la tio n to the armed forces,
superior orders are in a l l circumstances a v alid cx cu so ... But -it
has not been a sse rte d th a t i t s e ffe c t is to re lie v e French nationals
of re s p o n s ib ility when tr ie d before fo reig n t r i b u n a l s .... For i t is,
by necessary im plication, a ru le applicable only to the S ta te 's own
n a tio n a ls and only in resp ect of I t s own m unicipal law. In fa c t,
no country has more em phatically than France, re je c te d the plea of
superior orders when put forward by enemy so ld ie rs and o ffic e rs
accused of war c rim e s... There is no In te rn a tio n a l Ju d ic ia l authority
on the su b ject, but w rite rs on in te rn a tio n a l law have almost

/u n iv ersally
 E/CN.V w.19
Page 105

u n iv e rsally re je c te d the doctrine of superior orders as an absolute

J u s tif ic a tio n fo r var crimes."*
In s p ite of the p ra c tic e s and opinions tending to confine the plea
of superior orders w ithin d e fin ite lim its , i t is apparent from the above
quoted passages th a t the ru le s on the subject are f a r from providing
clear-cut answers to the questions involved.
D iffic u ltie s of a sim ilar nature a ris e in regard to the e ffe c t of
positions of a u th o rity in connection with the doctrine cf "acts of S tate"
covering individual re s p o n s ib ility , and in resp ect of v io la tio n s of the
laws and customs of war committed as r e p r is a ls .
I t i s a t th is p o in t th a t the rig h ts of the victim s and those of the
accused may be regarded as being in c o n flic t. For ln a l l such situ a tio n s
i t is the rig h t of only one of two categories th a t can be made good:
eith er the rig h t of the victim , by imposing a punishment upon the
p erp etrato r; or the rig h t of the accused, by adm itting a p lea of
exoneration from re s p o n s ib ility or of m itig atio n of punishment.
The Rules
The Far E astern C harter contains an express provision on th is issue
as fa r as the p o sitio n held by the accused and h is re la tio n sh ip w ith his
superiors are concerned. This provision (A rticle 6) reads as follow s:
"Neither the o f f ic ia l p o s itio n , a t any time, of the accused,
nor the fa c t th a t an accused acted pursuant to order of h is
government or of a superior s h a ll, of i t s e l f , be s u ffic ie n t to free
such accused from re s p o n s ib ility fo r any crime with which he is
charged, but such circumstances may be considered in m itig atio n of
punishment i f the Tribunal determines th a t Ju stic e so re q u ire s."
The above provision is a re p e titio n and confirm ation of the p rin c ip le
laid down in the Nrnberg Charter and reaffirm ed in the Control Council
Law No. 10, th a t n e ith e r the high p o sitio n nor the f a c t of having acted
upon superior orders can, of i t s e l f , exonerate the accused from
resp o n sib ility . C ertain d ifferen ces between these te x ts w ill be considered
la te r .
Precedents
The p rin c ip le i t s e l f is in lin e with the a ttitu d e taken and the
recommendations made by the Commission on R esp o n sib ilitie s vhich was s e t
up in 1919 by the Prelim inary Peace Conference in P a ris .

* See H. Lauterpacht, The Law of Nations and the Punishment of War Crimes,
B ritish Tear Book of In te rn a tio n a l Law, 19^ , pages 71-73

/On the issue

e / cw. Vw.i9
Page 106

On the i 6sue of the p o sitio n held by an in dividual who had committed

v io la tio n s of the lavs and customs of war, th e Commission on Responsibilities s
declared the following:
" ...t h e Commission d esire to s ta te expressly th a t- in the hierarchy of
persons in a u th o rity , there is no reason why rank, however exalted,
should in any circumstances p ro te c t the holder of i t from responsibility
when th a t re s p o n s ib ility has been esta b lish e d before a properly
c o n stitu te d trib u n a l. This extends even to Heads of S ta te s ."
Considering the argument th a t heads of S ta te s enjoy immunity from
prosecution, the Commission discarded i t in the follow ing terms:
" . . . th is p riv ile g e , where i t is recognised, i s one of p ra c tic a l
expedience in municipal law and is not fundamental. However, even if,
in some co u n tries, a sovereign is exempt from being prosecuted in a
n a tio n al court of h is own country, the p o sitio n from an international
p oint of view is qu ite d iffe re n t.*
Accordingly, the Commission came to the general conclusion th a t:
"All persons belonging to enemy co u n tries, however high th e ir
p o sitio n may have been, without d is tin c tio n of rank, including
Chiefs of S ta te s, who have been g u ilty of offences ag ain st the laws
and customs of war or the laws of humanity are lia b le to crim inal
prosecution."**
The p rin c ip le expressed in the above conclusion was implemented
in the Treaty of V e rsa ille s , and in p a rtic u la r in A rtic le 227 which
proclaimed the crim inal re s p o n s ib ility of the K aiser and provided fo r a
sp ec ia l trib u n a l to tr y him.***
In connection w ith i t s findings concerning the irrelev an ce of the
p o sitio n held by a person accused of v io la tio n s o f the lav s and customs
of war, the Commission a lso touched th e question of a c ts committed upon
the orders of such persons, and s ta te d the follow ing:
"We d esire to say th a t c i v i l and m ilita ry a u th o ritie s cannot
be re lie v ed from re s p o n s ib ility by the mere f a c t th a t a higher
a u th o rity might have been convicted of the same offence. I t w ill
be fo r the Court to decide vhether a p lea of superior orders is
s u ffic ie n t to acq u it the person charged, from resp o n sib ility ."* * * *

* S e e V i o l a t i o n s o f t h e L a w s a n d C u s to m s o f W a r . R e p o r t o f M a j o r i t y
a n d D i s s e n t i n g R e p o r t s o f A m e r i c a n a n d J a p a n e s e m e m b e rs o f t h e
C o m m is s io n o n R e s p o n s i b i l i t i e s , O x f o r d , H u m p h re y M i l f o r d , 1919, page19

** The American members disagreed w ith th is conclusion and the Japanese

members made a general re serv a tio n . See op. c i t . pages 6^-66 and
79-00. Alao pages 11-12 and 13 of th is Report.
*** In th is connection see a lso page 82 , n. 2.
**** See Op. C lt. , page lU.
/The Commission
 E/CN.U/h .19
Page 107

The Commission thus opened the way fo the subsequent development which
m aterialized in the Far E astern C harter, the Nrnberg Charter and the
Control Council Law No. 10, and which estab lish ed a general ru le resolving
the question of the re la tio n sh ip between any superior and h is subordinates,
at whatever le v e l of the hierarchy.*
Comparison with the Nrnberg Charter
The te x t of the afore-quoted A rtic le 6 of the Far Eastern Charter
shows c e rta in differences from the corresponding provisions of the
Nrnberg Charter and of the Control Council Law No. 10.
Under the wording of the Far Eastern C harter, the accused are denied
the rig h t to be freed from re s p o n s ib ility on account of th e ir p o sitio n
or of th e ir having committed a crime upon superior orders. But the
Tribunal has nevertheless power to take e ith e r of these circumstances in to
consideration in m itig atio n of the punishment.
Under the terms of the Nrnberg Charter and of the Control Council
Lav No. 10 th is power is confined exclusively to the plea of superior
orders, and i t is expressly s ta te d th a t the p o sitio n of the accused cannot
he considered in m itig atio n of punishment.**
I t is d if f ic u l t to see the reason fo r which the authors of the
Far Eastern Charter have departed from the ru le as la id down in the two
texts re fe rre d to , both of which preceded the enactment of the Far Eastern
Charter.

* For the changes which re c e n tly occurred in the B ritis h M ilita ry Manual
and the United S ta te s Rules of Land Warfare, see page 83, n- 1,
pages 221 and 223. In 1944, both te x ts were amended to in s e r t a ru le
sim ilar to the cne appearing in the Far Eastern C harter. U n til then
the ru le was constructed on the opposite p rin c ip le th a t in d iv id u als
committing v io la tio n s of the laws and customs of war upon superior
orders were not war crim inals.
** A rticle 7 of the Nrnberg Charter reads: "The o f f ic ia l p o s itio n of
defendants whether as Heads of S tates or responsible o f f ic ia ls in
Government Departments, s h a ll not be considered as fre e in g them from
re s p o n sib ility , or m itig atin g punishment." A rticle 8 re a d s: "The fa c t
th at the Defendant acted pursuant to order of h is Government or of a
superior s h a ll not fre e him from re s p o n sib ility , but may be considered
in m itigation of punishment i f the Tribunal determines th a t Ju stic e
so re q u ire s . A rtic le I I , paragraphs 4 (a) and (b) of the Control
Council Law No. j.0 is worded on the same lin e s and reads as follows:
"The o f f ic ia l p o sitio n of any person, whether as Head of S ta te or as
a responsible o f f ic ia l in a Government Department, does not fre e him
from re s p o n s ib ility fo r a crime or e n title him to m itig atio n of
punishment. The fa c t th a t any person acted pursuant to the order
of his Government or of a superior does not fre e him from re s p o n s ib ility
for a crime, but may be considered in m itig a tio n ." I ta lic s are
introduced.

/Conclusions
e /CN.V m. 19
Pago 108

Conclusions
The conclusions which may be drawn from the above an aly sis are the
follow ing:
(a) In the c o n flic t which may a ris e between the rig h ts of the
victim s of war crimes and those of the persons accused of the
commission of those crimes, in the sense descrioed in the beginning
of th is section, the ru le of in te rn a tio n a l law, as i t now stands, is
th a t the accused are denied the rig h t to be exonerated from
re s p o n sib ility on account of th e ir h ie ra rc h ic a l p o sitio n or on
the ground of having acted upon superior orders. On th is point
th e re is complete u n ity in the e x istin g ru le s , which thus extend
recognition to the rig h ts of the victim s and not to those of the
accused.
(b) The e x istin g ru le s are not u n ifie d on the issue of the
punishment to be imposed upon accused persons in the above two
types of cases. The Far Eastern C harter empowers the trib u n al to
admit a plea fo r m itig atio n in both cases. The Nrnberg Charter and
the Control Council Law No. 10 confers th is power only in regard to
the plea of superior orders, and not in regard to a p lea cased on
the p o sitio n held by the accused. The l a t t e r p lea is inadmissible
in a l l cases.
(c) None of these sources of in te rn a tio n a l law recognizes a rig h t
of the accused to claim m itig atio n of punishment. There is only
the rig h t to submit a p lea to th is e f f e c t, and the trib u n a l retain s
f u l l d iscretio n ary power to r e je c t Or admit the p lea on the merits
of each individual case.
R eprisals
Texts of in te rn a tio n a l law are s t i l l s ile n t on the question of
v io la tio n s of the laws and customs of war committed as re p r is a ls . No
tra c e is to be found on the subject in th e Far Eastern C harter, nor in
the Nrnberg Charter and Control Council Law No. 10-
This may be due to the f a c t th a t'su c h v io la tio n s may be considered
as covered by the two previous types of cases. In any r e p ris a ls an order
has to be issued fo r th e ir execution, and t h i s In s ta n tly brings in to the
p ic tu re the individual who issu ed the order and the Individual who carried
i t out. Thus. In a l l instances a so lu tio n i s a tta in a b le on the basis of
the ru le reg u latin g the e f f e c t of the p lea of superior orders and of the
ru le regarding the p o sitio n of an in dividual e x e rc isin g 'su p e rio r authority.
This type of case is however, complicated by the f a c t th a t customary
law recognizes, under c e rta in conditions, the rig h t to have recourse to
r e p ris a ls as a counter-measure fo r breaches committed by the other party,

/who is thus
 e /CH.U/w. 19
Page 109

who is thus assumed to have been g u ilty of such breaches in the f i r s t

place.*
The so lution of such cases s t i l l awaits a p re c ise answer in
conventional in te rn a tio n a l law.

E . CONCLUSIONS
The conclusions which may be drawn from th is incomplete study of
the Tokyo T ria l can be summarized as follow s:
The law contained in the Far Eastern Charter embodies a l l the main
rules of the contemporary laws and customs of war, and c o n stitu te s in
a c ertain degree a new code of these ru le s . I t has i t s counterpart in
the Nrnberg Charter but, although both ch arters are sim ilar in substance,
there e x is t c e rta in d ifferences which would make i t d esirab le fo r the
future to unify the ru le s contained in them in a single in te rn a tio n a l
instrument. Such differences appear, fo r instance, in regard to the
crim inality of a "declared" war of aggression; in regard to the enumeration
of war crimes which is of value in order to define th e ir f ie ld with
greater p re c isio n ; and in regard to the re s p o n s ib ility of members of
criminal organizations. There seems., in p a rtic u la r, to be a case fo r
clarifying fu rth e r the re la tio n sh ip between the notion of "crimes against
humanity" and "war crimes" in the narrower sense, which in the view of
the prosecuting body in Tokyo could be regarded as coinciding.
Another p o in t of In te re s t is th a t the prosecutors in d icted the
accused fo r a c ts which would not n ece ssa rily m a te rialize in actu a l var
crimes or crimes ag ain st humanity, namely fo r attem pts to commit such
crimes. In the case of crimes against peace, the law declares expressly
that the "preparation or planning" of a war of aggression is crim inal in
its e lf; but nothing of the s o rt is la id down in regard to war crimes or
crimes ag ain st humanity, so th a t th is question i s l e f t to be decided by
the Tribunal on the b a sis of general ru le s of w arfare.
The Lrnberg Tribunal dismissed the charge fo r attem pting to commit
war crimes or crimes ag ain st humanity, founding i t s decision upon a s t r i c t
in te rp re ta tio n of i t s C harter. I t remains to be seen whether the Far
Eastern Tribunal w ill follow s u it or whether i t w ill apply general
principles of penal law. according to which attem pts to commit most crimes
are punishable in themselves under the ru le s of common law.

* See H. Lauterpucht, Op. c i t . pages 79*77-

/The Far Eastern

E/cN.uyto.i9
Pag 110

The Far Eastern Charter as i t stands undoubtedly covers a wide field

of human rig h ts . Nevertheless, the question which are the sp ecific
human rig h ts protected by i t s provisions is l e f t to be decided by the
Tribunal i t s e l f when dealing with the sp ec ific war crimes v io la tin g those
rig h ts . But i t would perhaps be legitim ate* even a t th is stage, to draw
the conclusion th a t c e rta in rig h ts of the c iv ilia n population are protected,
such as the rig h t to f a i r t r i a l ; the rig h t not to be deprived of l i f e and
personal lib e r ty except a f te r f a i r t r i a l ; and the rig h t to personal
in te g rity and humane treatm ent when under detention, s to the specific
rig h ts of prisoners of war, they are l e f t to be determined under the
ru le s of the Hague and Geneva Conventions. They concern, in p a rtic u la r,
the rig h t to humane treatm ent, including the r ig h t to h e alth and to
s u ffic ie n t food.
On the other hand, owing p re c ise ly to the fa c t th a t the solution
regarding sp ec ific human rig h ts depends upon the fin d in g s of the courts
in each p a rtic u la r instance, i t means th a t in regard to a larg e number
of human rig h ts the answer i s s t i l l u n certain . This u n certain ty applies
to such inhumane acts as the tr a f f i c in n a rc o tic s, and the r e s tr ic tio n
or suppression of rig h ts such as those re la tin g to c iv il and p o litic a l
lib e r tie s , both in time of war and peace. F in a lly , in one p a rt of the
Indictment the p o in t was ra ise d as to whether combatants can claim the
rig h t to l i f e during m ilita ry operations, where such operations have been
in itia te d without warning. Any answer to these and sim ilar questions must
depend on the Judgment of the Far Eastern Tribunal, when i t is pronounced.
The main question fo r consideration is whether such rig h ts are to be
recognized to the extent th a t th e ir v io la tio n w ill involve penal
re trib u tio n , or whether such v io la tio n s ore to be regarded as remaining
outside the scope of in te rn a tio n a l penal law. Another question w ill be
to determine more p re c ise ly the human rig h ts which can Ju stifia b ly , be
r e s tr ic te d in time of war or in time of emergency. This concerns, in
p a rtic u la r, rig h ts such as those connected witn freedom of speech, meeting
and a sso c iatio n , and tne exercise of the rig h t to property.
The law contained in the Far Eastern C harter leaves l i t t l e , i f any,
u n certain ty as regards the various categories of individuals lia b le to be
held penally responsible fo r v io la tio n s of human r ig h ts . On th is point
the Far Eastern Charter is as complete and p recise as the Nrnberg
C harter. I t lays down f i r s t of a l l the general ru le th a t not only actual
p e rp e tra to rs, but also "lead ers, organizers, in s tig a to rs and accomplices'
are to be held responsible. In ad d itio n , th ere is the ru le th a t neither
the o f f ic ia l p o sitio n , including th a t of heads of s ta te s and members of
governments., nor the fa c t of havin; committed a v io la tio n upon superior
orders, can fre e an accused from re s p o n s ib ility . A ll these ru le s are
/c le a r
 E/CN.Vy.19
Page U l

c l e a r a n d w id e e n o u g h t o p r e v e n t t h e r e a l c u l p r i t s fro m e s c a p i n g p u n is h m e n t

and t o a c t a s a d e te rre n t.

F in a lly , th e fo llo w in g tw o p o i n t s sh o ld be n o te d . The p e r s o n a l

s ta tu s o f th e p e rp e tra to rs o r o f th e v ic tim s , i.e. th e q u e s tio n of th e ir

n a t i o n a l i t y a n d m o re p a r t i c u l a r l y w h e th e r t h e y w e re n a t i o n a l s o f b e llig e re n t

or n e u t r a l p o w e rs, d o e s n o t a f f e c t th e im p le m e n ta tio n o f t h e la w s a n d

c u sto m s o f w a r i n case o f v io la tio n s o f hum an r i g h t B c o m m i t t e d b y th e m

o r a g a i n s t th e m . On t h e o th e r hand, w h e n e v e r a c o n f l i c t m ay b e s a i d to

have a r i s e n b e tw e e n t h e . r i g h t s o f th e v ic tim s an d th o s e o f th e accused

a t th e tim e of th e o ffe n c e , th e g e n e ra l ru le a p p e a rs to be th a t th e c o n f lic t

is s o lv e d in fa v o u r o f th e r i g h ts o f th e v ic tim s . The r i g h t s o f th e a c c u se d

a re re c o g n iz e d a s a r u l e in th e sp h ere o f m itig a tio n o f p u n is h m e n t, a n d

not in re g a rd to p en al re s p o n s ib ility f o r th e c rim e i t s e l f .

The w e a k e st p o in t in th is s e t o f r u le s a p p e a rs to be t h a t c o n c e rn in g

re s p o n s ib ility fo r a c ts c o m m itte d a s r e p r i s a l s . The q u e s tio n is le ft

u n a n sw e re d b y th e T okyo a n d N rn b e rg C h a r t e r s and i t re q u ire s a s o lu tio n

i n v ie w o f th e f a c t th a t r e p r i s a l s a re s till r e c o g n iz e d a s a la w f u l m eans

of a c tio n in g iv e n c ir c u m s ta n c e s an d c o n d itio n s .

/CHAPTER I I I
e/ cnAAM9
Page 112

CHAP I I I

HUMAN RIGHTS IN TRIALS OTHER THAN THOSE CCNIUCTEE BY

INTERNATIONAL MILITARY TRIBUNALS

A. INTRODUCTION >
1, The Approach to the Study of the P ro tectio n of Human Rights In Time
of War
Previous in v estig atio n s in to the Ju d ic ia l p ro te c tio n of human rights
have usually been conducted on the plane of Municipal Law; an examination
of th is question in the sphere of In te rn a tio n a l Law is ra th e r more unusual,
and i t is worth asking what guidance can be derived from previous studies
of human rig h ts in Municipal Law systems.
Such discussions of the fundamental rig h ts or freedoms as appear in
text-books on C on stitu tio n al Law ( i . e . the c o n stitu tio n a l provision of
municipal laws) w ill be found to deal w ith, in te r a l i a , two aspects of the
problem;
(i ) The extent to which the law of the land has l e f t the Individual
free to exercise these r ig h t s . Dr. Ivor Jennings, in Chapter VIII
(Fundamental L ib e rtie s) of The Law and the C onstitution* p oints out
th a t, whereas nearly a l l w ritte n c o n stitu tio n s (such as th a t of the
United S tates) lay down c e rta in "fundamental rig h ts" which can be
lim ited or taken away only by c o n stitu tio n a l amendment, in the
United Kingdom th ere is no w ritte n c o n stitu tio n and no such
fundamental rig h ts are recognized. In the Uhited Kingdom, he
concludes, "the nature of the lib e r tie s can be found only by
examining the r e s tr ic tio n s imposed by the law", and, as examples,
the learned w rite r proceeds to show the extent to which the exercise
of the freedom of speech and p u b licatio n and of the freedom of
assembly is perm itted under English law.**
A c e rta in amount of inform ation which is to some extent relevant
to th is aspect can be derived from a study of war crime t r i a l s , in
so fa r as an accused is sometimes found not g u ilty of a war crime
because h is a c ts , although they may seem to have v io la te d the human
rig h ts of h is victim s, were held to be J u s tif ie d by the laws and
usages of war. Thus, while an attempt to ensure a measure of
personal lib e rty to p riso n ers of war is made by the f in a l sentence
of A rtic le 13 of the Geneva Prisoners of War Convention, which

* On pages 237 and 244 o f the Second E dition.

** Op c i t , pages 247- 260.
/p ro v itee
 E/CN.4/w.19
Page 113

provides th a t prisoners "sh a ll have f a c i l i t i e s fo r engaging In

physical exercises and obtaining the b e n e fit of being out of
doors",* nev erth eless, should a p riso n er of war attempt to escape,
I t has always been regarded as perm issible under the laws and usages
of war fo r h is captors to shoot a t him in order to prevent his
escaping. For in stan ce, in th e ir t r i a l before the E idsivating
Lagmannsrett (Court of Criminal Appeal) in Norway in March 1946,
a lle g a tio n s of murder were made ag ain st ex-K rim inalsekretar Bruns
and ex-K rim inaloberassistent Clemens, on the grounds, in te r a l i a ,
th a t they shot and k ille d Norwegian p riso n e rs, but the accused were
found not g u ilty of these charges. The Court were s a tis f ie d th a t
Bruns, in try in g to stop a p riso n er from escaping, had aimed a t h is
legs but th a t, as the p riso n er stooped a t th a t moment, the shot h i t
him in the head. The Court came to the conclusion th a t, as the
p risoner shot by Bruns had not stopped when ordered to do so, the
defendant had acted w ithin h is rig h ts in shooting a t him. The victim
was an important o f f ic ia l in the ille g a l In te llig e n c e service whose
capture was of great importance to the German a u th o ritie s , and the
only way to Btop him from g e ttin g away was to shoot a t him. The
Court, th erefo re did not consider the/defendant g u ilty of h is murder.
The Court a lso esta b lish e d th a t a p riso n er shot by Clemens had
been try in g to escape, and found th a t the defendant had not exceeded
h is rig h ts in try in g to prevent him from escaping by shooting a t him.**
The Judge Advocate serving in the t r i a l before a B ritis h M ilitary
Court of Karl Amberger fo r the shooting of prisoners of war even went
so f a r as to advise the Court th a t: " If th e accused, Karl Amberger,
did see th a t hi prisoners were try in g to escape or had reasonable
grounds fo r thinking th a t they were attem pting to escape then th a t
would not be a breach of the ru le s and customs of war, and th erefo re
you would not be able to say a war crime had been committed."***
Such inform ation as the above does n o t, of course, provide an
exact example of the f i r s t aspect of the question. A tru e instance

* To which, among other p rovisio n s, reference was made by the Prosecutor

in the t r i a l by a B ritis h M ilitary Court a t Hanover on
24-26 January 1946, o f Arno Heering.
** See Volume I I I of War Crimes T ria l Law Reports (Now in the P ress).
*** The Treierwalde Case, pages 81-7 of Volume 1 of War Crimes T ria l Law
Reports , published fo r United Nations War Crimes Commission by
. M. Stationery O ffice. I ta lic s in serted .
/would be
e / cn-.4/w.19
Page 114

would be a provision of in te rn a tio n a l law which d ire c tly re stric te d

the rig h ts o f priso n ers of war or in h ab itan ts of occupied te rrito rie s
as d is tin c t from a provision perm itting the detaining or occupying
Power to r e s t r i c t these rig h ts . The enforcement of such ru le s , if
they e x is t, could n o t, however, be illu s tr a te d by war crime tr i a ls ,
where the above-mentioned categories fig u re as victim s and not as
accused. Par from m aintaining th a t p risoners o f war were under a
duty under in te rn a tio n a l law not to attem pt to escape, the Judge
Advocate in the Dreierwalde T ria l would appear to have assumed that
they had a rig h t to make 6uch on attem pt. He claimed th a t i t was
"the duty o f an o ff ic e r or a man i f he is captured to tr y to escape.
The c o ro lla ry to th a t i s th a t the Power which holds him is e n title d
to prevent him from escaping, and in 'd o in g so no g reat n ic e tie s are
c a lle d fo r by the Power th a t has him In h is co n tro l; by th a t I mean
i t is quite r ig h t, i f i t is reasonable in the circumstances, fo r a
guard to open f i r e on an escaping p riso n e r, though he should pay
g re a t heed merely to wound him, but i f he would be k ille d though that
is very unfortunate i t does not make a war crim e."
( i i ) The extent to which the rig h ts of the in dividual have actually-
been p ro tected by the law. I t is th is aspect w ith which any study
of the problem based on an examination of t r i a l s of war criminals
must be mainly concerned.
Professor Dicey, in his c la s s ic The Law of the C o n stitu tio n ,
made the following .remarks regarding the p e cu liar character of the
B ritis h C onstitutio n : " ........ the general p rin c ip le s of the
c o n stitu tio n .(as fo r example the rig h t to personal lib e r ty , or the
rig h t of public meeting) are w ith us the r e s u lt of Ju d ic ia l decisions
determining the rig h ts of p riv a te persons in p a rtic u la r cases brought
before the c o u rts ........ There is-, in the English c o n stitu tio n an
absence of those d eclaratio n s or d e fin itio n s of rig h ts so dear to
foreign c o n s titu tio n a lis ts ........ In many fo reig n countries the rights
of in d iv id u als, e .g . to personal freedom, depend upon the
c o n stitu tio n , w h ilst in England the law o f the c o n stitu tio n is l i t t l e
e lse than a g e n eraliz a tio n of the rig h ts which th e courts secure to
in d iv id u als."*
W riting in the same vein , Dr. E. C S. Wade and Mr. G. G. Phillips
LL.M., have s ta te d th a t: " I t is then in th e law of crimes and of torts,,

* Ninth E d itio n , pages 195-200

/p a r t of. the
 e /CNA/W.19
Page 115

p a rt o f tho Common Law of the Land, the ordinary law and not th e
fundamental C o n stitu tio n al Lav, th a t the Englishman finds p ro te c tio n
fo r h is lib e r ty ag ain st o f f ic ia ls o f the S tate as well as o th ers."*
The laws of war are not w ithout instances of the a sse rtio n of the
rig h ts of c e rta in sp e c ific categories o f persons, and o f p rin c ip le s
of an even more general n atu re, which are in some ways analogous to
declaratio n s of fundamental rig h ts and general moral p rin c ip le s .
One provision which has often been quoted by Prosecuting Counsel in
war crimes tr i a ls ,* * A rtic le 46 of Section I I I (M ilitary Authority
over the T e rrito ry of the H ostile S ta te ) of the Hague Convention
No. IV of 1907 (Concerning the Laws and Customs of War on Land),
reads as follows
"A rticle 46. Family honour and r ig h ts , individual l i f e , and
p riv a te property, as w ell as re lig io u s convictions and
worship, must be respected.
P riv ate property may not be confiscated",
Again, the preamble to the Hague Convention s ta te s th a t the
sig n ato rie s are "animated a lso by the d esire to serve, even in th is
extreme case,*** the in te re s ts of humanity and the ever-progressive
needs of c iv iliz a tio n " , and the introductory sentences to the
Convention include the following passage:
"U ntil a more complete code o f th e laws or war "an t>e
drawn up, the High C ontracting P a rtie s deem i t expedient to
declare th a t, in cases not covered by th e ru le s adopted by
them, the inh ab itan ts and th e b e llig e re n ts remain under the
p ro te c tio n and governance of th e p rin c ip le s of the low of
n atio n s, derived from tho usages e stab lish ed among c iv iliz e d
peoples, from the laws of humanity, and from the d ic ta te s cf
the public conscience. "****
Judge Skau, delivering a judgment which was supported by the
m ajority opinion of the Supreme Court of Norway in the appeal of
Karl-Hans Hermann Klinge, a German war crim inal sentenced to death
by the E idslvating Logmannsrett, sta te d th a t to rtu re co n stitu ted a
v io la tio n of those "laws of humanity" and "d ic tate s of the public
conscience" which were mentioned in the te x t Ju st quoted.

* C o n stitutional Law, Second E d itio n , page 354.

** For in stan ce, in the Belsen and other concentration cagp t r i a l s .
*** That is to say, on the event of an outbreak o f war.
**** I ta lic s in se rte d .
/judge . /au
 E/C.Vtf.3
Page ll6

Judge Skau added, however,, th a t a c ts of to rtu re also co n stitu ted a

breach, In te r a l i a , of A rtic le s k6 and 6 l of the Geneva Convention,
two s p e c ific provisions of In te rn a tio n a l Law.*
Most provisions made by the Laws and Customs of War, which
p ro te c t c e rta in human rig h ts , are n o t, however, of such a general
n atu re, as the an aly sis to.be. attem pted presently** w ill show.
Many o f those provisions req u ire the performance or the avoidance
of acts of a w ell-defined n atu re, and i t is in th is connection that
the maxim ubi remedium ib l iu s, to which Dicey made sp ec ific
reference,*** acquires sig n ifican ce fo r the purposes o f the present
study. The human rig h ts p ro tected and the extent of such,
p ro te c tio n can only be found through an a n a ly tic a l study of the
Ju d ic ia l a p p lic atio n of a number of le g a l provisions of a restricted
scope.
2. D iffic u ltie s Involved in the Study of Human Rights in War Crime Trials
The examination of the extent to which t r i a l s of war crim inals
p ro te c t or vindicate human rig h ts confronts the in v e stig a to r immediately
w ith the question of the segregation and d e sc rip tio n of such rig h ts as are
- s u ita b le fo r treatm ent.
C ertain municipal le g a l te x ts , fo r instance the C iv il Criminal Code
of Norway,**** make some attem pt to arrange th e ir provisions according to
th e rig h ts of the Individual which w ill be v io la te d by breach thereof.
The laws and usages of war, however, are not arranged on any such
system atic b a sis .
In any case i t is seldom .if ever the p ra c tic e fo r th e charge against
an accused to alle g e any more sp e c ific legal- contravention than a breach
o f th e laws and usages o f war. Thus, a B ritis h Charge Sheet accuses the
defendant of "committing a war crime" in th a t, a t a c e rta in place and
tim e, he was responsible fo r some a c t or omission "in v io la tio n of the
lavs and usages o f war". -The Canadian p ra c tic e has been the same as the
B ritis h .
United S tates Charge -Sheets have not shown quite- th e some uniformity
of d ra ftin g and may alle g e a "v io la tio n of the laws o f var" or a
"v io la tio n of In te rn a tio n a l Lew". In the Ja lU it A toll Trial,*****

* See Volume I I I o f War Crimes T ria l Law Beports (Now in PressJ.

** i . e . in Section C of th is Chapter (Bights of the Victims of War
Crimes).
*** Lo i t , page 199
**** Separate Chapters o f th is Code, deal fo r instance,, w ith offences
ag ain st the lib e r ty of the person and offences ag ain st l i f e , body
and h e alth .
***** War Crime T ria l Law Beports, Volume I , pages 71-80. ,
---------------------------------e----- /h e ld before
 e /CN.V w.19
Page 117

held before a United S tates M ilitary Commission in the P a c ific , the charge
was one of murder, and the sp e c ific a tio n , s e ttin g out the alleg ed elements
of the offence, ended with the words; " ........ a l l in v io la tio n of the
dignity of the United S tates of America, the In te rn a tio n a l ru le s of
warfare and the moral standards of c iv iliz e d sodiety". An objection
made by the accused on the grounds th h t the inclusion in the charge of the
words "moral standards of c iv iliz e d society" was improper and non-legal
was over-ruled by the Commission.
Charge Sheets produced before the Norwegian Courts try in g war
criminals alleg e th a t the accused committed war crimes which v io lated
specified provisions of Norwegian Law. French Actes d 1Accusation alleg e
breaches of French law and the Court must decide whether these were
ju s tifie d by the laws and customs of war.
Nor in mo3t cases is i t possib le to determine w ith c e rta in ty on what
ground the Court try in g a war crim inal came to i t s decision. In
Norwegian t r i a l s , the C ourt's findings and reasons are each delivered in
public and recorded. A French M ilitary T rib u n al's view of the fa c ts can
be gathered from i t s Judgment and the provisions of French law found to
be v io la te d are also sta te d . The B ritis h , United S tates and Canadian
practice, however, is fo r the court simply to announce it3 finding of
guilty or not g u ilty and to award any punishment on which i t may have
decided.* The reasoning by which the Court a rriv e s a t i t s v e rd ic t and
sentence can never be discovered, since i t s discussions are held in p riv a te
s ittin g and only the f in a l decisions announced. The arguments of Counsel
are of In te re s t in so f a r as they throw lig h t on considerations which the
Court may have had in mind during th e ir d e lib e ra tio n s, but are not of
course an in f a llib le guide. In s t r i c t law, even the summing up of a
Judge Advocate before a B ritis h M ilitary Court, when such an o ffic e r is
is appointed, is not a f in a l in d ic a tio n even of the law on which the Court
acted. Two relev an t provisions s e ttin g but some of the powers and duties
of tho Judge Advocate are made by Rule of Procedure 103, (e) and ( f ) , which
run as follows:**

* There are seme exceptions among the Dtaited S tates T ria ls , notably the
d e ta ile d Judgments by the United S tates M ilitary Tribunals conducting
the "Nrnberg Subsequent Proceeding T r ia ls ." (see page 135).
** The Royal Warrant under which t r i a l s of war crim inals by B ritis h M ilitary
Courts are held provides, in Regulation 3, th a t, except in so fa r as
th e re in otherwise provided, the Rules of Procedure applicable in a Field
General Court M artial of the B ritis h Army s h a ll be applied so fa r as
applicable to tho M ilitary Courts fo r the t r i a l of war crim inals. These
ru les are contained in th e B ritis h Army Act and the Rules of Procedure
are made under the Act by an Order in Council, the l a t t e r being a piece
of delegated le g is la tio n enacted by the Executive in 1926 (S.R. & 0.
99/ 1926). , , %
/" (e ) At th e conclusion
E/H.4/W.19
Page 116

"(e ) At the conclusion of the case he w ill, unless both he and the court
consider i t unnecessary, gum up the evidence and advise the court upon
the law r e la tin g to the case before the court proceed to deliberate
upon th e ir finding;
" (f) Upon any point of law or procedure which a ris e s upon the t r i a l
which he a tte n d s, the court should be guided by h is opinion, and not
disregard i t , except fo r very weighty reasons. The court are responsible
fo r the le g a lity of th e ir d e cisio n s, but they must consider tho grave
consequences which may re s u lt from th e ir disregard of the advice of the
Judge Advocate on any le g a l p o in t. 3he Court, in following the opinion
of the Judge Advocate on a le g a l p o in t, may record th a t they have
decided in consequence of th a t opinion."*
From these clauses i t follows th a t, s t r i c t l y speaking, a B ritis h
M ilitary Court is the f in a l Judge of the law as w ell as o f th e fa c ts of a
case, and th a t a Judge Advocate's summing up does not n ece ssa rily s e t out
the law on which the Court acted , although in p ra c tic e hi3 words carry a
very high au th o rity .
I t is not p o ssib le , th e re fo re , in most cases, to divine the view cf
the Court regarding the p recise human ri& nts p ro tected ore vindicated by
t r i a l s of war crim inals. This would profcxbly remain cae case even i f the
reasons of the court were always recorded, since those co u rt3, following
the tra d itio n s of c iv iliz e d Ju stic e and observing th e maxim n u lla poena sine
le g e , n a tu ra lly tr y alleged crim inals fo r breach o f sp e c ific le g a l
provisions ra th e r than fo r offences ag ain st more general p rin cip les.* *
To say th is is of course not to m aintain th a t the Judges have been
concerned w ith le g a litie s to the exclusion of p rin c ip le s of ju s tic e , for
these l a t t e r have been embodied in the ru le s applied. In h is summing up in
the Bheine A irfie ld T ria l (Heinz S te llp flu g and fiv e others) by a B ritish
M ilitary Court a t Osnabrck, 26-29 A pril 19^7, the Judge Advocate said:
"The laws and usages of war have developed out of the following
p rin c ip le s . The f i r s t is th a t the b e llig e re n t is J u s tif ie d in
applying any amount and any kind of force necessary fo r the purpose of
v a r, and of course th a t must always be so. By th a t I mean force

* I t a l i c s in se rte d .
** Examples of the worst p o s s ib ilitie s involved in taking the l a t t e r course
are provided by t r i a l s by the German Courts in which ap p licatio n was
made of an a c t o f 28 June 1935, authorizing punishment fo r acts which
were analogous to acts already punishable by law; in determining whether
offences f e l l w ithin the scope of th is provision the Courts were directed
to apply "sound popular fe e lin g ", (gesundes Volksempfinden)
/necessary
 e /CN.V v .119
Page 119

necessary fo r the complete submission of the enemy a t the e a r lie s t

p o ssible moment w ith the le a s t p o ssib le expenditure o f men and money.
The second p rin c ip le is the maintenance of humanity; th a t covers the
exclusion of a l l kinds and degrees of violence not necessary fo r the
purposes o f var , and which th erefo re are not perm itted under these
customs and usages o f war to the b el ig e re n t. T hirdly, th ere is the
aim th a t chivalry s h a ll s t i l l remain, chivalry which demands a c e rta in
amount o f fa irn e ss in offence and in defence, and a mutual resp ect
between the opposing fo rces. That, Gentlemen, is what the observance
of the laws and usages o f war seeks to a tta in , a high standard.
" I t is upon those p rin c ip le s th a t i t has been held th a t i t is
forbidden to k i l l or wound an enemy who, having la id down h is arras or
having no longer any means of defence, has surrendered and fa lle n into
c a p tiv ity , having ceased - and th is is the important p o in t here - to
r e s i s t . In th a t event i t is the proper course, under these laws and
usages o f war, to take him as a p riso n er of war and grant him the
p ro te c tio n and custody to which he is e n title d as a p riso n er of war".
A ll th a t is maintained in the p resen t paper is th a t the Courts try in g
war crim inals have not been c a lle d upon to view the cases before them fo r
the a n a ly tic a l angle required o f one whose ta sk is to determine how fa r
these t r i a l s p rotected or vindicated human rig h ts .
The lite r a tu r e dealing w ith questions concerning human rig h ts is vast
and cannot be said to provide any agreed catalogue of rig h ts which can be
accepted fo r the purpose of Bhowlng whether and how fa r they have been
protected or vindicated in war crime t r i a l s . Lawyers, philosophers,
sociologists and psychologists are not agreed among themslves as to what
rights th ere are and in what sense they may be said to e x is t. These topics
have been the subject of liv e ly discussion ever since the r is e among the
Ancient Greeks of the Stoic school of philosophy, which held th a t le g is la to rs
should attem pt to promote the freedom and e q u ality o f a l l men, to avoid
discrim ination on account o f race or sex and to discourage any oppression of
men by other men.*
Furthermore, i t can be argued th a t some commonly recognized rig h ts
include others w ithin th e ir scope; th u s, Dr. Jennings w rites:
"The rig h t t o personal freedom is a lib e r ty to 3 0 much personal
freedom as is not taken away by la \r. I t a s s e rts the p rin c ip le of
le g a lity , th a t everything is le g al th a t is not ille g a l. I t includes,
th e re fo re , the "rig h ts" o f free speech, o f a sso c iatio n , and of
assembly. For they a s s e rt only th a t a man may not be deprived of h is

* See the a u th o ritie s quoted in Jurisprudence. by Edgar Bodenheimer

(New York, 191'0) page I 09, footnote 1. .
/personal
e /CN.4^7.19
Page 120

personal freedom fo r doing c e rta in kinds of acts - expressing opinion,

a sso c iatin g , and meeting together - unless in so doing he offends
against the law. The " rig h t of personal freedom" a ss e rts th a t a man
may not be deprived o f h is freedom fo r doing any a ct unless in so doing
he offends against the law. The l a s t is the genus of which the others
are species."*
A possible procedure open to th e in v e stig a to r would be to l i s t the
human rig h ts commonly p ro tected by the municipal laws of c iv iliz e d states,
and to fin d how f a r these same rig h ts have been p ro tected by the t r i a l s of
war crim inals. This approach would be made th e e a s ie r by th e fa c t th a t in
many co u n tries, as has already, been seen, th e fundamental rig h ts o f the
individual have been s e t out in a basic w ritte n C o n stitu tio n . In an. article
on The Bights of Man and In te rn a tio n a l Law,** by Dr. Edward Benes, the
following paragraph appears which seems relev an t in th is connection:
"In the course of the l a s t war th e American I n s titu te of
In te rn a tio n a l Law, in a meeting held in January I 916, passed a
d eclaratio n of the rig h ts and du ties o f n atio n s, in th e preamble to
which there were expressly invoked the municipal laws of c iv iliz e d
nations such as the rig h t to l i f e , the rig h t to lib e r ty , the rig h t to
the p u rsu it of happiness, the rig h t to le g a l e q u a lity , the rig h t to ......
property and the rig h t to the enjoyment of the afo resaid rig h ts , and
which demanded th a t these fundamental rig h ts should be s ta te d in terms
o f In te rn a tio n a l law."
Yet in so fa r as the method suggested would involve the examination of
formal c o n stitu tio n a l te x ts , and the e x tra c tio n therefrom o f c e rta in
fundamental r ig h ts , i t would not be w ithout i t s d if f ic u l tie s . There are for
instance numerous provisions of in te rn a tio n a l law which aim a t securing the
rig h t to a f a i r t r i a l of persons under th e temporary J u ris d ic tio n of a
b e llig e re n t. A rtic le 30 o f th e Bague Convention provides th a t: "A spy
taken in the a c t s h a ll not be punished w ithout previous t r i a l " ; and the
rig h t to f a i r t r i a l may be thought to be p ro tected on b eh alf of the inhabitant:
o f occupied te r r it o r y by A rtic le 43: "The a u th o rity of th e power of the
S tate having passed de fa c to in to the hands o f the occupant, the l a t t e r shall
do a l l in h is power to re s to re , and ensure, as f a r as p o ssib le , public
order and sa fe ty , respectin g a t th e same tim e, unless absolutely prevented,
the laws In force in the country". Again, Chapter 3 (Penal Sanctions) of the
Geneva Prisoners of War Convention of I 929 makes d e ta ile d provision for
ensuring th a t p risoners of war charged w ith offences ag ain st the "laws,
re g u la tio n s, and orders In force in th e armed forces o f the detaining Power"

* Op c l t pages 243-4.
** Czechoslovak Yearbook of In te rn a tio n a l Law. London 1942, page 3*
/s h a ll be
 e / cn.UAM9
Page 121

shall be tre a te d Lin a Judicious manner (see l a te r ) . Furthermore a considerable

section of th is paper* Is to be devoted to the rig h t of an alleg ed v ar
criminal to a f a i r t r i a l . Yet i t is arguable th a t access to a f a i r t r i a l is
not a r ig h t, but a means of safeguarding other rig h ts . Thus the United S tates
Constitution provides th a t no person s h a ll "be deprived of l i f e , lib e r ty , or
property, w ithout due process of law" (F ifth Amendment), " ........ nor s h a ll any
State deprive any person of l i f e , lib e r ty , or property, w ithout due process
of law;" (Fourteenth Amendment). The phrase "due process of law" includes
within i t s scope the idea of f a i r t r i a l , but i t is debatable, on the face
of the te x t, whether "due process of law" is regarded as c o n stitu tin g a
right in i t s e l f or whether i t is regarded as a means of p ro tectin g " l i f e ,
lib e rty , or property."
The United Kingdom D raft of an In te rn a tio n a l B ill of Human Bights,**
prepared fo r the consideration of the D rafting Committee of th e Commission
on Hunan Bights of the United Nations, though not a le g a l te x t, provides an
in teresting p a r a lle l. The preamble to the suggested B ill includes the words:
"Whereas the Ju st claims of the S ta te , which a l l men are under a duty to
accept, must not prejudice the resp ect of man's rig h t to freedom and eq u ality
before the law*** and th e safeguard of human rigbtB , which are primary and
abiding conditions of a l l Ju st government". A rtic le 12 of the proposed B ill
provides th a t: "No person s h a ll be held g u ilty of any offence on account o f
acts or omissions which did not c o n stitu te such an offence a t the time when
they were committed." Yet the c le a re s t and most d ire c t reference to th e
right of f a i r t r i a l appears as p a rt of a d ra ft re so lu tio n which, according to
the proposal of the United Kingdom, might be passed by the General Assembly
when adopting an In te rn a tio n a l B ill of R ights. This te x t suggests th a t
fair t r i a l is c la s s ifie d as a means of safeguarding rig h ts ra th e r than as a
right i t s e l f : "The General Assembly expresses the opinion th a t human rig h ts
and fundamental freedoms can only be completely assured by the a p p licatio n
of the ru le of law and by the maintenance in every land of a Judicary, fu lly
independent and safeguarded against a l l pressure, and th a t the provisions of
an In tern atio n al B ill of Bights cannot be f u l f ille d unless th e sa n c tity of
the home and the privacy of correspondence ore gen erally respected and unless
at a ll t r i a l s the rig h ts of the defence are scrupulously respected, including
the p rin c ip le th a t t r i a l s s h a ll be held in public and th a t every man is
presumed innocent u n til he is proved g u ilty " .
V/hether a "rig h t" is recognized as such or Is regarded as a meanfj of

* Section E (The Bights of the Accused a t the Time of the T r ia l).

. ** London. H.M. S tationery O ffice, 1947.
*** I ta lic s in serted .
/safeguarding
e / ch.I+AM9
Pago 122

safeguarding other rig h ts Is o f no sig n ifican ce as long as I t i s maintained in

p ra c tic e , but i t must be c le a r from the foregoing pages th a t anyone making
an in v e stig a tio n of war crime t r i a l s from the p o in t of view of the
p ro te c tio n or v in d ic a tio n of human r ig h ts , while deriving valuable guidance
from provisions of municipal law, must be l e f t to some extent free to
segregate and define fo r him self the re le v an t rig h ts in the manner which he
finds most convenient fo r the purpose of arranging and analysing the material
w ith which he is confronted.
3. War Crimes not R esulting in V io latio n s of Human Rights
While i t is tru e th a t the v a st m ajority of war crimes w ith which the
courts have been c a lle d upon to deal have c o n stitu te d v io la tio n s of human
r ig h ts , th is has not invariab ly been so. Thus, in the S cu ttled U-Boats Case*
h eld before a B ritis h M ilitary Court 6 t Hamburg, on 12 and I 3 February 19h6 , a
former German naval o ffic e r was condemned as a war crim inal and sentenced
to imprisonment fo r a term of years fo r sinking two German submarines in
v io la tio n of the terms of th e Instrument o f Surrender o f k May 19k5. I t could
hardly be claimed th a t h is a c ts in frin g ed the rig h ts of any individual person.
S im ilarly, K apitanleutnant Ehrenrich Stever o f the German navy was held
g u ilty of having committed a war crime by a B ritis h M ilitary Court a t Hamburg
on 17 Ju ly 19k6, because he sc u ttle d the U-Boat, of which he was commander,
a f te r the German Command had surrendered a l l naval ships to the A llied
Forces.
A d iffe re n t type of war crime which c e rta in ly does not involve the hunum
rig h ts of the liv in g is th a t fo r which two Japanese, Ju taro Kikuchi
and Masaak Mabuchi, were sentenced resp ec tiv e ly to imprisonment fo r
tw enty-five years and death by hanging, by a United S tates M ilitary
Commission a t Yokohama on 5 A pril I 9H6. They were held g u ilty of w ilfully
and unlawfully committing "wanton and inhuman a tr o c itie s against the dead
body of a c iv ilia n American Prisoner of War in v io la tio n of the Laws and
Customs of War". The sentences were confirmed by superior m ilita ry authority.
An A ustralian M ilitary Court s ittin g a t Wewak on 3 November 19^5# found
Takehiko Tazaki g u ilty o f m utilating the dead and o f cannibalism and
sentenced him to be hanged; the evidence showed th a t he had cut the body of
a dead A ustralian so ld ie r and eaten the fle s h . The sentence, however, was
m itigated to one of fiv e y e ars' imprisonment w ith hard labour by superior
m ilita ry au th o rity ,
k. The D ivisions o f Chapter I I I
Perhaps a word should be said here in explanation o f th e division into

* See War Crime T ria l Lay Reports , published fo r the United Nations War Crime.
Commission by S.M. S tationery "ffic e , Volume I , pages 55-70.
/which Chapter
 E/CN.U/w.19
Page 123

vhich Chapter I I I f a l l s .*
Uhder the heading B. Legal Basis and J u ris d ic tio n of War Crime Courts
other than the In te rn a tio n a l M ilitary T ribunals, th ere appears, f i r s t , a
brief o utline of the le g al b a sis under In te rn a tio n a l Law and under various
Municipal Law systems of war crime courts other than the In te rn a tio n a l
Military Tribunals. The treatm ent o f the le g a l b asis under In te rn a tio n a l
Lav is not developed to any extent but appears in summary form, since i t is
not of major in te re s t to readers of the p resen t Report. I t has been
thought convenient th a t the various Municipal Law enactments under which
the Courts have been s e t up and which reg u late th e ir procedure (and in some
cases the treatm ent of such m atters as the p lea of superior orders) should
be next mentioned a t th is e a rly poin t in th e Chapter, to g eth er w ith a
brief in d icatio n o f the types of Court involved.
F in ally an attem pt is made to analyse some of the J u ris d ic tio n a l
provisions contained in these enactments. Since nearly a score of d iffe re n t
legal systems are involved, however, and since in many instances the
provisions re fe rre d to are re la tiv e ly complex, i t has not been p o ssib le , in
the time a v a ila b le , to subject a l l of these provisions to a f u l l a n aly sis,
Those Ju ris d ic tio n a l provisions which i t ha3 been p o ssib le to c o lle c t but
not to analyse are contained in an Appendix to Chapter H I . The contents
of th is appendix are s e t out a t the end of the sectio n on th e le g a l basis
and J u risd ic tio n of war crime courts.
Under the heading C. V iolations of the Rights of the Victims of War
Crimes appears the m aterial which i t has been possible to c o lle c t
concerning the extent to which v io la tio n s of human rig h ts have been
punished in war crime t r i a l s . This m aterial is divided p rim arily according
to the type of victim , and the inform ation so c la s s ifie d is then sub-divided
as far as possib le according to the rig h ts v io la te d . The Section ends with
a note concerning the question of the nat?.Quality of persons accused of
having committed war crimes.
The Section headed D. Spheres in which tha Right s of the Accused and
the Rights of the Victims may be said to have C onflicted a t the Time of the
Offence is divided in to a number of p a rts , in each of which an attempt is
nade to show how municipal enactments and Ju d ic ia l p ra c tic e have stru ck the
balance between c o n flic tin g claims to th e C ourt's consideration. As might
te expected, most o f these p a rts deal w ith the various defences ra is e d in
var crime t r i a l s (the plea of superior orders receiv in g p a rtic u la r
attention), but there are also a number of pages dealing w ith questions of

* See also the statem ent o f Contents a t the beginning of th is Volume.

/com plicity,
E / cN.U/w.19
Page 124

com plicity, th a t Is to say th e problem o f how clo sely connected w ith the
war crime a person must.be before he can be held lia b le him self as a war
crim inal. The re s p o n s ib ility of a commander fo r offences committed by his
troops which he did not order receives e sp e c ially d e ta ile d a tte n tio n .
Section E, The Rights of the Accused a t the Time of the T ria l sets out
m aterial re la tin g to the rig h ts of an alleg ed war crim inal which guarantee
him a f a i r t r i a l , as derived from an an aly sis of the laws and ru le s of the
d iffe re n t countries re la tin g to the t r i a l of war crim inals and from a study
of th e ir ap p lic atio n in p ra c tic e .
Only c e rta in selected and e sp e c ially important rig h to are d e a lt with,
and the sectio n also contains, towards i t s end, an examination of certain
ru le s , dealing fo r instance w ith the types of evidence adm itted in war
crimo t r i a l s , which aim a t ensuring th a t th e Courts s h a ll not be so bound
by tech n ical ru le s th a t the g u ilty s h a ll b e n e fit from th e exceptional
circumstances under which t r i a l s are held and so s lip through th e n et of
J u s tic e . I t is c le a r of course th a t the l a t t e r provisions in d ire c tly
v in d icate the rig h ts of the victim s of war crimes.
I t should be added th a t th is sec tio n on the rig h ts of the accused
includes not only (as does th e remainder of Chapter I I I ) m aterial gained
from an examination of the tra n s c rip ts of t r i a l s conducted by courts other
than the In te rn a tio n a l M ilitary Tribunals a t Nrnberg and Tokyo and of the
enactments governing th e ir proceedings, but also relev an t inform ation
derived from a study of the Charters of the. In te rn a tio n a l M ilitary Tribunals.
F in a lly , in F. Conclusions, such general p rin c ip le s as emerge from
the m aterial contained in Chapter I I I as a whole are s e t out, and various
conclusions are drawn from the study of th a t m a te ria l.

/B. TffE LEGAL

 E/CH.U/to.19
Page 125

B. TEE LEGAL BASIS AND JURISDICTION OF THE

COURTS TRYING WAR CRIMES OTHER THAN THE INTERNATIONAL MILITARY TRIBUNALS

I. LEGAL BASIS UNDER INTERNATIONAL LAW

1. In so far as a Court t r i e s enemy n atio n als fo r war crimes committed
against n atio n als o f th e country whose a u th o ritie s have e stab lish ed the
Court, the J u ris d ic tio n of the Court is based on th e undoubted rig h t under
in tern atio n al law o f a b e llig e re n t to punish, on capture of the offenders,
violations of the laws and usages of war committed by enemy n atio n als against
the n ationals of th a t b e llig e re n t.
2. Insofar as such a Court t r i e s enemy n atio n als fo r war crimes committed
against A llied n atio n als (or persons tre a te d as such) other than n atio n als
of the country whose a u th o ritie s have e stab lish ed the Court, Ju risd ic tio n
may be based on e ith e r
(a) the generell doctrine called U n iv ersality o f ju ris d ic tio n
over War Crimes, under which every independent S tate has in
In te rn a tio n a l Law J u ris d ic tio n to punish p ira te s and war
crim inals in i t s custody regard less of th e n a tio n a lity of the
victim s or the place where the offence was committed; or
(b) the doctrine th a t a S tate has a d ire c t in te r e s t in
punishing the p e rp e tra to rs o f crimes i f the v ictim was a
n a tio n a l o f an a lly engaged in a common stru g g le ag ain st a
common enemy.
The doctrine c a lle d U n iv ersality o f J u ris d ic tio n , which has received
the support o f the United Nations War Crimes Commission and is generally
accepted as sound, received exhaustive treatm ent by W illard B. Cowles in an
a rtic le e n title d U n iversality o f J u ris d ic tio n over War Crimes (C alifo rn ia
Law Review, Vol. 33 (19^5), page 177), in which the learned author s ta te s ;
when i t is a m atter o f doing Ju stice in places where ordinary law
enforcement i s d if f ic u l t or suspended, the m ilita ry trib u n a ls of the
United S tates . . . . have acted on the p rin c ip le th a t crime should be punished
because i t is crime. They have no concern with ideas of t e r r i t o r i a l
Ju risd ic tio n .. . .No evidence has been found th a t any o f th e decisions Just
discussed were the subject of p ro te s t by th e governments o f the accused
persons. C ertain i t i s th a t in none of these Tfaited S tates cases is th ere
any evidence of a consciousness on the p a rt of the courts of any duty not to
assume J u ris d ic tio n ." The author then argued th a t "while th e s ta te whose
nationals were d ire c tly affected has a primary in te r e s t, a l l c iv iliz e d
states have a very re a l in te re s t in the punishment of war crimes", and th a t
"an offence against the laws of war, as a v io la tio n of the law of n atio n s,
is a matter of general in te re s t and concern". He concluded th a t "every
/independent
e / cnAA m .9
Page 126

Independent s ta te has J u ris d ic tio n to punish war crim inals in i t s custody

reg ard less o f the n a tio n a lity o f the victim , th e time i t entered th e war, or
th e place where the offence was committed".
3. In so far as a Court t r i e s enemy: n atio n als -for offences which do not
c o n stitu te war crimes s tr ic to sensu ( i . e . offences committed ag ain st other
enemy n a tio n als o r n e u tra ls other' than those tre a te d as A llied nationals)
J u ris d ic tio n may he based on the undoubted rig h t under in te rn a tio n a l law of
a b e llig e re n t, on the to ta l breakdown of the enemy owing to d e b e lla tio , to
take over the e n tire powers of the l a t t e r , including the power to make laws
and to conduct t r i a l s . Thus, by th e D eclaration regarding th e defeat of
Germany and the assumption of supreme a u th o rity with resp ect to Germany, made
in B erlin on 5 June 19k5, the four AUiod Powers occupying Germany
assumed supreme a u th o rity .* The question whether or not the laws enacted
and enforced by the A llied Powers as a r e s u lt of th is a c t tech n ica lly
re sp ec t the p rin c ip le of nullum crimen sine le g e , n u lla pona sine lege
does not e ffe c t the complete le g a lity under in te rn a tio n a l law of th e ir
actio n s.* *
k, Some few of the enactments which are s e t out l a t e r in the present
chapter*** provide fo r th e t r i a l o f t r a i t o r s as w ell as th e t r i a l of war
crim inals. In so far as th e Courts s e t up under such le g is la tio n tr y persons
accused of treasonable offences they a re , of course, ex ercisin g the
J u ris d ic tio n which any s ta te has over i t s own su b jec ts.
I I . LEGAL BASIS UNDER MUNICIPAL LAW
Tjhe le g a l b a sis under Municipal. Law o f th e various C ourts, Commissions
und Tribunals s e t up to t r y alleg ed war crim inals n ece ssa rily v a rie s somewhat
from country to country, b u t . i t i s not p o ssib le a t the present stage to
indulge in any extensive comparative study of the sources undr Municipal
Law of war crimes J u ris d ic tio n . I t may, n e v erth eless, be o f value to
in d ic a te the re le v an t enactments and the type of courts to which,- in each
country, war crime t r i a l s have been re fe rre d .
I t i s generally agreed th a t an alleg ed war crim inal Is e n title d to
t r i a l by m ilita ry c o u rt, bu t th is does no t prevent h is captors from trying
him by a c i v i l court should they choose to do so. For th is p o in t of view,
th e municipal enactments concerning th e t r i a l o f war crim inals f a l l into

* See, in th is connection, Professor Bans Kelsen, The Legal Status of

Germany in American Journal of In te rn a tio n a l Law, Vol. 39; page 51.
** Before the breakdown of the enemy, the b e llig e re n t commander has the
r ig h t, subject to Hague Convention No. IV of 1907 to le g is la te for the
t e r r it o r ie s under h is occupation and so to provide fo r the punishment,
in te r a l i a , of offences by one enemy n a tio n al ag ain st another.
*** See op. 288-298.
/th ree
 e/ cnA / w.19
Pago 127

three cate g o rie s, according to whether they ( i ) create new courts; or (11)
refer cases of alleged war crimes to a m ilita ry court fo r which le g a l
provision has already been made; o r ( i l l ) re fe r such cases to already
existing c iv il co u rts.
The re le v an t United Kingdom and United S tates municipal provisions f a l l
into the f i r s t c la s s . The French Ordinance o f 28 August I 9M , i s an
oxample of th e second, while the Norwegian enactments i l l u s t r a t e the th ir d .
The .ju risd ictio n of the B ritis h M ilitary Courts fo r the t r i a l of war
criminals i s based cn the Royal Warrant dated l 1 June 19^5? Army Order
6l/h-5 as amended. The Royal Warrant s ta te s th a t His Majesty "deems i t
expedient to make provision fo r th e t r i a l and punishment of v io la tio n s of the
lews and usages o f war" committed during any war "in which he has been or
may be engaged a t any time a f te r the 2nd September 1939-" I t is His
Majestys "w ill and pleasure" th a t "the custody, t r i a l and punishment of
persons charged with such v io la tio n s of the laws and usages of war" s h a ll
be governed by the F.ogulations attached to the Warrant. The Royal Warrant is
based on the Royal P rerogative, which, in English law, is "nothing e lse than
the residue of a rb itra ry au th o rity which a t any given time i s le g a lly l e f t
in the hands of the Crown" (Dicey's d e fin itio n ).*
The United S tates M ilitary Commissions are an old in s titu tio n which
existed p rio r to the C onstitution c f the United S tates of America. They have
been doseribed as the American Common Law War C ourts. They were not created
by s ta tu te , but are recognized by s ta tu te law. Whereas the B ritis h Royal
Warrant of lh June 19^5, has made reg u latio n s fo r the t r i a l of war crim inals
for a l l B ritis h M ilitary Courts in a l l th e a tre s of operations and in a l l

* See a lso pp. 28U-5 of th is Report and pp. IO5-IO of War Crime T ria l Law
Reports published fo r the United Nations War Crimes Commission by His
M ajesty's Stationery O ffice, London, Vol. I . The c o n s titu tio n a lity and
le g a lity of the Royal Warrant and of i t s in d iv id u al provisions have so
far not been challenged in any B ritis h Superior Court as have i t s
M orican counterparts, the orders c f the American executive a u th o ritie s
appointing M ilitary Commissions fo r the t r i a l of war crim inals under the
law of the United S ta te s . The l a t t e r have been reviewed by the Supreme
Court of the United S tates in the so -called Saboteur Case, ex p a rte Qulrln
end others (19U2) and in the cases re Yamashita (19h6) and in re Eomma
(191+6)'. Regulation 6 of the Royal Warrant s ta te s e x p lic itly th a t the
accused is net e n title d to objoct to the President or any member of the
Court or the Judge Advocate, or to o ffe r any special p lea to the
Ju risd ic tio n of the Court.

/te rrito rie s

e / cn. h /v .19
Pago 128

t e r r i t o r i e s under the ju ris d ic tio n of the United Kingdom Government and armed
fo rce s, tho United S tates a u th o ritie s , on the oth er hand, have made different
provisions fo r d iffe re n t t e r r i t o r i e s , namely fo r the M editerranean, European,
P acific and China Theatres of Operations ^pp. 203-6).*
Provisions sim ilar to those contained in the Royal Warrant have in the
Conmonvealth of A u stralia been made by an Act of Parliam ent (War Crimes Act,
19*1-5, No. W /19^5), and in the rominion of Canada by an Order in Council,
made under the a u th o rity of the War Measures Act of Canada, and e n title d The
War Crimes Regulations (Canada) (P.C. 5^31 of 30 August 19**5j Vol. I l l , No. 10,
Canadian War Orders and R egulations). The l a t t e r were re-enacted in an Act
of 31 August 19*+6. The Canadian and A u stralian war crime Courts a re , like
the B ritis h , M ilitary Courts.**
The competence! of French M ilitary Tribunals to tr y war crim inals, apart
from those s ittin g in the French Lone of Germany, Is based on the Ordinance
of 28 August 19^*** concerning tho suppression of war crim es, which, by
v irtu e of A rtic le 6 th e re o f, is applicable not only to M etropolitan France
b u t also to A lgeria and the Colonies.
The f i r s t paragraph o f A rtic le 1 o f th e Ordinance provides th a t persons
g u ilty of offences under th e Ordinance s h a ll be tr i e d by French m ilitary
trib u n a ls in accordance w ith th e French laws in fo rce . T ria ls held by virtue
of tho Ordinance have taken place before Permanent M ilita ry Tribunals and
M ilitary Appeal T ribunals, fo r which le g a l provision already ex isted before
i t s enactment fo r the t r i a l of offonces by French m ilita ry personnel.
A rtic le 12*- of the Code de Ju stic e M ilita ire s ta te s th a t: "In time of war
th e re s h a ll be a t le a s t one Permanent M ilitary Tribunal in each m ilitary
region; the seat of th is M ilita ry Tribunal s h a ll, in p rin c ip le , be the chief
town of the M ilitary region ...." * * * *
The necessary s ta r tin g p o in t fo r a study of Norwegian law re la tin g to the
t r i a l of war crim inals is the law of 13 December 19**6 (No. 14) on the

* For fu rth e r d e ta ils regarding the Legal Basis of the United States
M ilitary Commission see War Crime T ria l Law R enorts, Vol. I , pp. 73;
75, 76-79 and 111-113.
** See also pp. 28U-6.
*** For which see p. 137.
**** I t is intended to include in War Crime T ria l Law R enorts, Vol. I l l ,
an Annex dealing v ith French Law Concerning T ria ls of War Criminals
by M ilitary Tribunals and by M ilitary Courts in the French Eone of
Germany.

/Punishment
 E/CN.V w.19
Pago I 29

Punishment of Foreign War Crim inals, the te x t of which d iffe rs only In one
minor resp ect re la tin g to punishment from th a t o f a Provisional Decree of
the some subject dated If May 19^5* In promulgating th e Provisional Docree,
the Norwegian Government in London acted in accordance v ith the re so lu tio n
adopted by the S to rtin g a t Elverum on 9 A pril 19**0,* and with I 17 of the
Norwegian C o n stitu tio n , which provides th a t: "The King may make or rep eal
regulations concerning commerce, customs, tra d e and in d u stry and p o lice;
they must n o t, however, be a t variance w ith th e C onstitu tio n o r the laws
passed by the S to rtin g . . . . They s h a ll operate p ro v isio n ally u n til the n e x t,
S torting." The Law was passed by the S to rtin g on 12 December 19^6, and was
sanctioned by the King on 13 December 19^6. Paragraph 1 of the Law reads
as follows:
"Acts which, by reason o f th e ir c h arac te r, come w ithin the
scope of Norwegian crim inal le g is la tio n are punished according
to Norwegian law, i f they wore committed in v io la tio n of th e lavB
and customs of war hy enemy c itiz e n s o r o th er a lie n s who were in
enemy service or under enemy o rd ers, and i f the said a cts were
committed in Norway or wore d ire c te d ag ain st Norwegian c itiz e n s or
Norwegian i n t e r e s t s ."
One re s u lt of the words "are punished according to Norwegian law" is
that in Norway no sp ecial C ourts, m ilita ry o r otherw ise, have been s e t up to
try cases of alleged war crimes. Such proceedings are brought before the
ordinary Courts of the land.**
The conducting o f liar Crime t r i a l s beforo the Danish C iv il Courts***
is provided fo r in the Punish Act of Parliam ent o f 12 July 19^6, on the
Punishment of War Crim inals, while the Belgian Law o f 20 June 19^7, re la te s
to the ccmpetenoe of Belgian M ilitary Tribunals in the m atter of war
crimes****. Other relev an t Belgian enactments ore the Decree of
5 August 19^3, aad the Act o f Parliament o f 30 A pril 19^7
A law governing the T ria l of W..r Criminals was enacted by the Chinese
A uthorities on 2h Octobei* 19^6; A rtic le XIV of th is law provides th a t:

* This re so lu tio n gave the Norwegian Government f u l l power to take

any steps and to make any decisions which they might fin d necessary
under war-time conditions.
** See pp. 137-8.
*** See p. 139*
**** See p. 288.

/" A rtic le XIV

E/CN.1*Am 9
Page 130

"A rtic le XIV. War crime cases s h a ll be w ithin the Ju risd ictio n
o the M ilitary Tribunals fo r the Tidal of War Crim inals, attached
to various M ilitary Organizations by order of the M inistry of
Defence.."*
For a study of the J u ris d ic tio n of the Netherlands Courts try in g
a lleg ed war crim inals, the relev an t enactments are the Extraordinary Penal
law Decree of 22 December 19^3 (S tatu te Book D. 6l ) and th e Decrees of
22 December 19*4-3, (S tatute Book D. 62) and of 12 June 19*4-5, (S ta tu te Book
F. 91) by which fiv e special courts and a sp ecial Cour de C -ssetion were
s e t up having J u ris d ic tio n over the crimes to which the Extraordinary Penal
Law Decree is applicable. These courts are composed of m ilita ry and
c iv ilia n Judges.**
Hie Law of 2 August 19*4-7, of the Grand Duchy of Luxembourg provides
fo r the t r i a l of alleged war crim inals in Luxembourg by a sp ec ia lly
estab lish ed War Crimes Court, which, according to A rtic le 20 of the Law,
is to have a mixed c iv il and m ilita ry composition.***
The J u ris d ic tio n of P o lish Courts try in g war crim inals and traito rB
is based on various decrees, of which the consolidated te x ts were
promulgated by the Polish M inister of J u s tic e on 3I October and
11 December 19*46 (see o f f ic ia l Gazette of th e Republic o f Poland
17 November 19^6 No. 59, Item 327 and 15 December 19^6, No. 69 Item 377).
P olish t r i a l s of war crim inals and tr a ito r s are held before c iv il courts,
including a sp ec ia lly e stab lish ed Supreme N ational Tribunal.****
A Yugoslav Law of 25 August 19*45 governs the t r i a l of war criminals
and tr a ito r s by Yugoslav C ourts. Such offences are tr i e d by e ith e r c iv il
or m ilita ry co u rts, according to th e provisions of paragraphs 1 and 2 of
A rticle, 1*4 of the law:
"(1) Criminal acts under th is law are tr ie d in th e f i r s t instance by
the Peoplos County Courts, or in the case o f m ilita ry persons, by
m ilita ry courts.
"(2) In p a rtic u la rly important cases, crim inal cases under A rticle 2
of th is Law are to be tr ie d by the Supreme Courts of the federative
u n its , or if. the a c t is of general s ta te sig n ifican ce by the M ilitary
Bench of the Supreme Federal Court, or otherw ise, by the Supreme
Federal Court."*****

* See page 286.

** See page 1*4*4.
*** See page 139.
**** See page 29*4.
***** See page 295.
/Provisions
 E/CN.lt/W.19
Page 131

Provisions fo r the t r i a l of war crim inals and tr a ito r s in

Czechoslovakia was made by Decree No. 16 o f 19 June 19^5* of the President
of the Czechoslovak Republic, Law No. 22 o f 2k January 19k6, o f the
Provisional N ational Assembly of the Republic, Law No. 2U5 of
18 December 19W>, of the C onstituent N ational Assembly of the Republic, and
Decrees Nos. 33/19^5 and 57/19^6 of the Slovak N ational Council. Such t r i a l s
were to be held before sp e c ia lly appointed P eople's Courts,*
T ria ls o f alleged war crim inals in Greece are held in accordance w ith
the C o nstitutional Act 73/19^5 (Government Gazette page 25O), before
either the Special Court M artial in Athens of mixed m ilita ry and c iv ilia n
composition or Courts M artial of e n tire ly m ilita ry composition.
Apart from the B ritis h and United S tates M ilitary Courts and
Commissions which have been e stab lish ed fo r the t r i a l of alleg ed war
criminals in Germany (fo r instance a t Wuppertal and Hamburg in the B ritis h
Zone and a t Dachau in the United S ta te s Zone) several systems o f M ilitary
Government Courts have a lso been s e t up, in the various zones, w ith power
to try war crimes and other offences.
Proclamation No. 1 of General Eisenhower, actin g as Supreme Commander
of the A llied Expeditionary Force, provided in Section I I :
"Supreme le g is la tiv e , J u d ic ia l and executive a u th o rity and
powers w ithin the occupied te r r it o r y are vested in me as Supreme
Commander of the A llied Forces and as M ilitary Governor, and the
M ilitary Government is esta b lish e d to exercise these powers under my
d ire c tio n . A ll persons in the occupied te r r it o r y w ill obey immediately
and without question a l l th e enactments and orders of the M ilitary
Government. M ilitary Government Courts w ill be esta b lish e d fo r the
punishment of offenders. R esistance to the A llied Forces w ill be
ru th le s sly stamped out. Other serious offences w ill be d e a lt w ith
se v e re ly ."**
In h is Ordinance No. 2 , General Eisenhower, again acting as Supreme
Ccnanonder, esta b lish e d M ilitary Government Courts fo r the p a rts of Germany
occupied by the w estern A llie s. He also issued Rules o f Procedure of
Military Government Courts, and, fu rth e r, Ordinance No. 1 (Crimes and
Offences ). ***
In the D eclaration regarding the d efeat of Germany and the assumption
of supreme a u th o rity w ith respect to Germany, made in B erlin On

* See page 291.

** I ta lic s in serted
*** The date o f Promulgation of Ordinances Nos. 1 and 2 was
l8 September I 9W . See a lso page 298.
/5 June 19^5,
E/CS.k/V . 19
Page 132

5 June 19^5,* however, the four A llied Powers' occupying Germany assumed
supreme a u th o rity over Germany. By the establishm ent of the A llied Control
Council the some A llies s e t up a body which was to have supreme authority
over "matters a ffe c tin g Germany as a whole".
The D eclaration s ta te s , in te r a l i a , th a t:
"The R epresentative o f th e Supreme Commands of th e United Kingdom,
the United S tates of America, the Union o f Soviet S o c ia lis t Republics
and the French Republic, h e re in a fte r c alled th e "A llied Representatives",
actin g by au th o rity of th e ir resp ectiv e Governments and in the interests
of the United Htions, accordingly make the following D eclaration:
"The Governments o f th e United Kingdom, the United States of
America and the Union of Soviet S o c ia lis t Republics, and the
Provisional Government of the French Republic, hereby assume
supreme au th o rity w ith resp ect to Germany, including a l l the
powers possessed by the German Government, the High Command and
any s ta te , m unicipal, or lo c a l government or a u th o rity . The
assumption fo r the purposes s ta te d above, of the sa id authority
and powers does not e ffe c t the annexation of Germany."
A rtic le s I and I I of the Proclamation No. 1 e sta b lish in g the A llied
Control Council run as follow s:
" I. As announced on 5th June, 1945, supreme a u th o rity with
resp ect to Germany has been assumed by the Governments of the
United S tates of America, the Union of Soviet S o c ia lis t Republics,
the United Kingdom, and the Provisional Government o f th e PVench
R epublic.
I I , In v irtu e of the supreme a u th o rity and powers thus assumed
by the four Governments, the Control Council has been estab lish ed
and supreme au th o rity in m atters a ffe c tin g Germany as a whole has been
conferred upon the Control Council."
Section I I I of Proclamation No. 1 of th e Control Council provides as
as follows :
"Any m ilita ry laws, proclam ations, o rd ers, ordinances, notices,
reg u latio n s and d ire c tiv e s issued by or under the au th o rity o f the
resp ectiv e Commanders-in-Chiof fo r th e ir resp ectiv e Zones of
Occupation are continued in force in th e ir re sp ec tiv e Zones of
Occupation."
Shortly a f te r the D eclaration of B erlin , the B ritis h , United S tates,
French and Russian Zones were brought in to being and the Ju risd ic tio n of

* B ritis h Command Paper (1945) 6648.

/G eneral Eisenhower
 e /CNA/w19
Pag 133

General Elsenhower as 'Supreme Commander over the w estern occupied

te rrito rie s came to an end.
When, a f te r the B erlin D eclaration of 5 June 19^5, General Eisenhower,
in his capacity of Commander-In-Chief of the American Forces in Europe, took
over the adm inistration of the American occupation zone, he made a
proclamation s ta tin g In te r a l i a , th a t, a l l orders by the M ilitary Government,
including proclam ations, laws, reg u latio n s and n o tices given by the
Supreme Commander or on h is in s tru c tio n s , remained in force in the American
occupation zone unless repealed or a lte re d by the Commander-In-Chief
himself. The M ilitary Government Ordinance No. 2 and the Exiles of
Procedure in M ilitary Government Courts a re , th e re fo re , the b a sis of
M ilitary Government Courts estab lish ed in the American zone of occupation.
Sim ilarly, Ordinance No. ^ (Confirmation of L eg islatio n ) of the
B ritish Zone, runs as follows:
Whereas on l4 th Ju ly , 19^5, the Commander-in-Chief of the
B ritis h Zone of Control assumed a ll au th o rity and power th ereto fo re
possessed and exercised by the Supreme Commander A llied
Expeditionary Force w ithin th e B ritis h Zone, NOW IT IS HEREBY ORDERED
as follows :
A rtic le I
1. A ll Military^Government Proclamations, Ordinances, Laws, N otices,
Regulations and other enactments and orders and a l l amendments
and m odifications th ereo f issued by or under the a u th o rity of
the Supreme Commander A llied Expeditionary Force and e ffe c tiv e
w ithin the B ritis h Zone of Control on 14th Ju ly , 19^5, are hereby
confirmed and (subject to the provisions of A rtic le I I hereof)
w ill continue in force throughout th e B ritis h Zone u n til repealed
or amended by or under the a u th o rity of the Commander-in-Chief of
the B ritis h Zone of Control.
A rtic le I I
2. A ll the enactments mentioned in A rtic le I hereof s h a ll where the
context so requires or admits be read and construed as i f
throughout the expression "Commander-in-Chief of the B ritis h Zone
of Control" were su b stitu te d fo r th e expression "Supreme
Ccmmnnder A llied Expeditionary Force".
A rtic le I I I
3. The B ritis h Zone of Control is th a t p o rtio n of Germany which is
occupied by the forces serving under the command of the
Commander-in-chief of the B ritis h Armed Forces of Occupation in
Germany. I t does not include the B ritis h Sector o f B e rlin .
/M ilita ry
E/CN.4/w.19
Page 134

M ilita ry Government- Courts continued, th e re fo re , to operate in the

B ritis h Zone as under Ordinance No. 2 (with amendments) u n til 1 January 1947,
when under Ordinance No. 68 they were replaced by a system of Control
Commission Courts*.
A French High Command in Germany was created on 15 June 1945, and
Ordinance No. 1 of 28 July 1945, of the French Commander-in-Chief, which
was thus enacted a f te r the B erlin D eclaration and. a f te r the emergence of the
four A llied Zones, maintained in force th e two Ordinances of th e Supreme
A llie d Commander re fe rre d to above. This b r ie f account of the le g a l history
of the French M ilitary Government Tribunals is repeated in the Preamble to
Ordinances Nos. 20 and 36 of the French Commander-in-Chief, which make
provisions regarding the J u ris d ic tio n of French M ilitary Government
Courts.**
On 20 December 1945, Law No. 10 (Punishment of Persons G uilty of War
Crimes, Crimes against Peace and against Humanity) of the A llie d Control
Council came in to force; i t s purpose, according to i t s preamble was "to
give e ffe c t to the terms of the Moscow D eclaration o f 30 October 1943, and
the London Agreement of 8 August 1945, and the Charter Issued pursuant
th e re to and in order to e sta b lis h a uniform le g a l b a sis in Germany for
the prosecution of war crim inals and other sim ila r offenders, other than
those d e alt w ith by the In te rn a tio n a l M ilitary T ribunal."
Law No. 10 reaffirm s the rig h t of the Commander-In-Chief of each Zone
to e s ta b lis h w ithin h is zone trib u n a ls fo r the punishment, in te r a l i a , of
war crimes. A rtic le I I I th ereo f provides th a t;
"1. Each occupying a u th o rity , w ithin i t s Zone of occupation,
(a) s h a ll have the rig h t to cause persons w ith in such zone
su&pected of having committed a crime, including those charged
w ith crime by one of the ttoited N ations, to be a rre s te d ........
(b) s h a ll have the rig h t to cause a l l persons so a rre ste d and
charged, and not delivered to another a u th o rity as herein
provided, or released , to be brought to t r i a l before appropriate
trib u n a l........
2. The Tribunal by which persons charged w ith offences hereunder
s h a ll be tr ie d and the ru le s and procedure th ereo f s h a ll be determined
or designated by each Zone Commander fo r h is re sp ec tiv e Zone. Nothing
herein is intended to , or s h a ll impair or lim it th e J u risd ic tio n or
power of any court or trib u n a l now or h e re a fte r esta b lish e d in any

* See pages 135 end 298-9.

** See page 299-300.
/zone
 e / cn.U/W.19
Page 135

zone by the Commander th ereo f, or of the In te rn a tio n a l M ilitary

Tribunal estab lish ed by the London Agreement of 8 August 19^5*
The e ffe c t of Law No. 10 w ithin the Zones of Germany must now be
traced. By A rtic le 1 of Ordinance No. 36 o f 25 February 19^6, the French
Zone Commander has simply bestowed upon the e x istin g M ilitary Government
Courts in th e French Zone J u ris d ic tio n over the offences s e t out in
Article I I of Law. No. 10.*
Ordinance No. 7 of the M ilitary Government of th e United S tates Zone
of Germany, which became e ffe c tiv e on l 8 October 19^6, provided, in the
words of i t s A rtic le I , fo r "the establishm ent of M ilita ry Tribunals which
3hall have power to tr y and punish persons charged with offences recognized
oo crimes in A rtic le I I o f Control Council Law No. 10, including
conspiracies to commit any such crim es." A rtic le I I (a) of th e Ordinance,
as w ill be seen p re se n tly , re fe rre d to Law No. 10 as one of th e le g a l
sources from which the power to promulgate the Ordinance arose.** I t is
in pursuance o f th is Ordinance th a t th e M ilita ry Tribunals were s e t up to
conduct the t r i a l s commonly re fe rre d to as the "Nuremberg Subsequent
Proceedings".*** According to the Opening Speech o f the Prosecution in one
of thse t r i a l s , th a t of Josef A ls to tte r and f if te e n o th e rs, Ordinance No. 7
vas enacted "for the purpose of implementing Law No. 10 of th e A llied
Control Council fo r Germny, and to carry out the purposes th e re in s ta te d " .
Ordinance No. 68 of the B ritis h Zone of 1 January 19^7, s e t up a new
system of Control Commission Courts; Law No. 10 is not d ire c tly re fe rre d to
In th is Ordinance, but paragraph 3 of the l a t t e r includes w ithin the
criminal offences which Control Commission Courts s h a ll have ju ris d ic tio n
to try : "A ll offences under any proclam ation, law, Ordinance, Notice or
Order issued by or under the a u th o rity of the A llied Control Council fo r
Germany in force in the B ritis h Zone."****

* See page 300.

** See pace 301.
*** These T ria ls are the following: Oase No. 1 T ria l of Fori Brandt and
twenty-two o th e rs, Case No. 2 , T ria l of Erhard Milch, Case No. 3,
T ria l of Josof A lts t tte r and f if te e n o th ers, Case No. 4, T ria l of
Oswald Pohl and seventeen oth ers, Case No. 5, T ria l of
F ried rich F lick and fiv e oth ers, Case No. 6, T ria l of Carl Krauch and
twenty-two o th e rs. Case No. 7, T ria l of Vilhelm L ist and eleven
oth ers, Case No, 8, T ria l of U lrich G re ife lt and th ir te e n o th ers,
Case No. 9, T ria l of Otto Ohlendorf and tv en ty -th ree eth ers,
Case No. 10, T ria l of A lfried Krupp von Eoieiund Haibach and eleven
others, Case No. 11, T ria l of E rnst von Woizaacker and eighteen
others.
**** See page 299
/U I. TEE
e / c n a / w.19
Page 136

I I I . TEE JURISDICTION OP WAR CRIME COURTS

1, Genoral Remarks
Had time allowed, those provisions of the enactments mentioned above
which define the J u ris d ic tio n of war crime courts could have been made the
subject of considerable comparative an aly sis and c la s s ific a tio n . Such
provioions are o f f i r s t - r a t e importance to the study of the p ro tectio n of
human rig h ts since they determine which types o f offenders can le g a lly be
tr i e d before the courts governed by them. Hie provisions re fe rre d to are
contained, however, in more than twenty d iffe re n t le g a l enactments and
some are quite complex in ch aracter. I t has not been p o ssib le therefore
to subject them to the analysis which they deserve, yet they a l l cedi for
some kind of treatm ent. While i t has only been p o ssib le under the
circumstances to make a lim ited number o f remarks of a more general nature
regarding them, i t has nevertheless been thought of use to make a
c o lle c tio n o f such J u ris d ic tio n a l provisions as a b a sis fo r discussion and
thought. Some of these provisions are th erefo re quoted in th e following
pages, where tin attem pt is made to demonstrate and discuss th e prevailing
C ontinental le g a l approach to war crime t r i a l s . The remainder are s e t out
in an Appendix to th is chapter, the contents of which are sh o rtly s e t out
below.*
2. The French. Norwegian, Danish, Netherlands** and Luxembourg Previsions:
The C ontinental Legal Approach to War Crime T ria ls
I t is poi.Bible to diooern a d ifferen ce between the Anglo-3axon and
the p re v a ilin g Continental leg al approach to the punishment o f war
crim inals, and the French, Norwegian, Danish, Netherlands and Luxembourg
provisions may be used to demonstrate th e l a t t e r .
The f i r s t paragraph of A rtic le I o f the French Ordinance of
26 Aiigust 19W , fo r in stan ce, reads as follow s: "Enemy n atio n als or agents
o f other than French n a tio n a lity who are serving enemy adm inistration or
in te re s ts and who are g u ilty of crimes or d e lic ts committed since the
beginning of h o s t i l i t i e s , e ith e r in France or in t e r r i t o r i e s under the
a u th o rity o f Fronce, or ag ain st a French n a tio n al o r a prson under- French
p ro te c tio n , or a person serving or having served in the French armed forces,
or a s ta te le s s person re sid e n t in French t e r r it o r y before 17 June 1&0, or
a refugee resid in g in French t e r r it o r y , or ag ain st the property or any
n a tu ra l persons enumerated above, and ag ain st any French corporate bodies,
s h a ll be tr i e d by French M ilita ry Tribunals in accordance w ith the French
laws in fo rce, and according to the provisions s e t out in the present

* See.page lkk
** See page lkk /Ordinance
 e / cjAAM 9
Page 137

Ordlnnnce, where such offences, even i f committed a t the time or under th e

pretext of an e x istin g s ta te of war, are not J u s tif ie d by the lavs and
customs of war"* When a French M ilitary Tribunal t r i e s an alleg ed war
criminal, the Judges decide f i r s t whether a p ro v isio n of the French
Criminal Code has been v io la te d and, only secondly, whether th is breach
vas ju s tif ie d by the laws and customs of war.
Again, the Norwegian a ttitu d e towards the treciw ont o f war crim inals
follows the general C ontinental p ra c tic e by stre ssin g th a t, before
punishment of any individual offender becomes le g a l, he mut be shown to
have offenced against seme sp e c ific provision of Norwegian municipal law
as well as against the lavs and usages of war. The Norwegian approach is
shown in the f i r s t sentence of A rtic le 1 of the law of I 3 December l$h6
(No. ih ): "Act3 which, by reason of th e ir ch aracter, come w ithin the
scope of Norwegian crim inal le g is la tio n are punished according to
Norwegian la v , i f they were comnittod in v io la tio n of the lavs and customs
of war by enemy c itiz e n s or other a lie n s who were in enemy service or under
eneuy orders, and i f the said acts were committed in Norway or were
directed ag ain st Norwegian c itiz e n s or Norwegian in te r e s t s ..,." * *
A commentary of the Norwegian M inistry of J u stic e and Police which
explained the provisions of the Law claims th a t th is a ttitu d e is the same
as th a t adopted in the Moscow D eclaration, which provided th a t war
criminals other than major war crim inals were to he tr i e d and punished in
accordance v ith the laV3 of the lib e ra te d co u n tries. The M inistry, quoting
A rticle 96 of th e Norwegian C onstitution: "No one may be convicted except
according to law, or be punished except according to Ju d ic ia l s e n te n c e ..." ,
then goes on to s ta te th a t: "Norwegian courts can only i n f l i c t punishment
according to provisions of Norwegian c iv il or m ilita ry law. The p rin c ip le
la id down in A rtic le 96 o f the C o n stitu tio n must be in te rp re te d in th i3
connection so as to make an a rb itra ry a p p lic a tio n of an undefined pro v isio n
of in te rn a tio n a l law inadm issible. In Norway, in te rn a tio n a l la v i s not
incorporated in to n a tio n al law as an in te g ra l p a r t, as b th e case in
various fo reig n le g a l systems. Before a ru le of substantive in te rn a tio n a l
lav can be applied by Norve^ ~n c o u rts, i t must be incorporated in to
Norwegian n a tio n a l la v by a sp ec ia l a c t. A c le a r example of th is is
A rticle 92 of our m ilita ry c r i minal code, which fix e s the punishment fo r a
typical war crime committed by enemy s o ld ie rs. The paragraph is based on
the in te rn a tio n a l reg u latio n s which are to be found in th e Geneva Convention
of I 929, regarding the treatm ent o f sick and wounded: cf. A rtic le 23f of
the Hague R egulations."

* I t a l i c s in se rte d .
** I t a l i c s in se rte d . / i t is to
e / cn.4;V . i 9
ra se 133

I t is to be noted, however, th a t a Norwegian Court is not precluded

from seatcu cirg a war criminal to death by the fa c t th a t the municipal
enactment enabling the Eupremo penalty to he enacted fo r h is offence was
not passed u n til afoer the commission th e re o f. Accordingly, Judgment vent
against Karl Zens Hermann KLinge when he appealed to th e Supreme Court of
Norway against h is being condemned to death as a war crim inal hy the
H idsivatlng Lagcanru-rett (Court of Appeal), on 8 December 1945. Counsel
fo r Klinge claimed th a t th e Lagmannsrett had u n ju stly applied the
P rovisional Decree of 4 May 1945* under which the sentence o f death was
perm issible; as the crimes fo r which the defendant had been convicted had
been committed before the passing of th a t Decree, the punishment should
have been r e s tr ic te d to the lim its s e t by A rtic le s 228, 229 and 62 of the
C iv il Criminal Code, according to which the death sentence could not have
been passed; h is argument was based on A rtic le 97 o f the Norwegian
C onstitution, which provides th a t: "No law may be given re tro a c tiv e effect."
On 27 February 1946, however, fo r various reasons a m ajority of the Supreme
Court Judges re je c te d these arguments.**
S im ilarly, A rtic le 1 o f the Danish Law of 12 July 1946, on the
Punishment o f War Criminals provides th a t: " I f a non-Darusn su b ject, being

* T ils was the predecessor of the Law c f 13 December 1946, and made, on
th is p o in t, the same p ro v i.-o n s.
** The examination of K linge's appeal involved the Judges in an interpretation
of one of the most fundamental provisions o f th e Norwegian constitution.
I t was perhaps in the circumstances in e v ita b le th e re fo re that"
in te re s tin g arguments baaed on p rin c ip le s o f J u s tic e and public policy
should have been ra is e d . Thus, Judge Skau pointed out th a t
circumstances lik e those facing th e Court could not have been foreseen
when the c o n stitu tio n was d ra fte d , and expressed the opinion th a t i t
seemed unreasonable th a t provisions made fo r the p ro te c tio n of the
community could be r e lie d upon by an enemy of the same community. To
allow such a p lea to be put forward by fo reig n war crim inals would be
a v io la tio n of the high p rin c ip le s which were th e foundation of
A rtic le 97 and the claim fo r Ju stic e which i t supported. Judge Holmboe,
on the other hand, c le a rly regarded A rtic le 97 o f the C onstitution as
a safeguard ag ain st despotism, whose f u l l e ffe c t was worth preserving
even i f complete Ju stic e would, in consequence, not be done in the
present case in so f a r as Klinge would be punished too le n ie n tly .
Judge Larssen sa id th a t th e acceptance of the view o f the minority
among the Judges would offend the n a tu ra l sense o f J u stic e .
Judge Schjelderup and Judge Larssen seem to have considered i t
c o rre c t to in te rp re t the word "law in A rtic le 97 as including the laws
and customs of war as w ell as Norwegian law, in cases lik e the one
before the Court. For a f u l l account o f the t r i a l , see Volume I I I of
r Crime T ria l Law D eports, to be published fo r the United Nations
,i.x Crimes Commissionby HTM. S tationery O ffice, London, pages 1
e t seq.

/ i n the
 e /CN.v/ w. 19
Page 139

in the service of Germany or serving under one of Germany's a l l i e s , bos

lafringod the ru le s and customs o f In te rn a tio n a l lav governing Occupation
a1hi Vur end ha-- -performed, in Denmark or to th e detrim ent of Danish
in te re sts, cr.v deed punishable per se in Danish la v , an a c tio n can he
brought a g ain st such person in re sp ec t o f th e crime committed and a
punishment imposed in a Danish Court in pursuance o f th is Ac
A rtic le 1 of the Law o f 2 August ipV f, on the suppression of war
crimes, o f tbo Grand Duchy of Luxembourg provides th a t:
"Agents o f other than Luxembourg n a tio n a lity , who are g u ilty
of crimes or d e lic ts f a llin g w ith in the competence o f the
Luxembourg trib u n a ls and which were committed a f te r the outbreak
of h o s t i l i t i e s , i f these o ff.n ces ware committed a t th e time or
under the p re te x t of the s ta te o f war and were not J u s t i f i e!J z
the laws and customs o f war, whether such agents were captured
w ithin the Grand Duchy or on enemy te r r it o r y or whether the
Government secured them by e x tra d itio n , s h a ll be prosecuted
before a War Crime Court and tr i e d in accordance w ith the
Luxembourg lavs in force und w ith the provisions o f the present
law ,"*
The Anglo-Saxon le g a l approach to war crime t r i a l s has been a l i t t l e
different in th is resp ect .** Instruments such as the B ritis h Boyal Warrant
or the United S tates Theatre Regulations and D irectiv es, which have
v alidity in the respective municipal le g a l systems, have provided in
general terms th a t the Courts operating under them s h a ll have ju ris d ic tio n
over war crimes, but the p ra c tic e of these Courts, in bo fa r as they tr y
var crimes s tr ic to sensu, is to req u ire only th a t a breach of the lews and
usages of war must be shown. An enactment governing such a court may
sometimes attem pt to define the scope of the term "war crime", and fu rth e r,
the provisions of municipal law are o ften quoted, as analogies, by Coursel,
and in B ritis h t r i a l s by the Judge Advocate or Logal Member, but the
violation of any S9t of le g a l ru le s other than the lavs and usages o f war
(possibly as in te rp re te d in the enactment) need not be shown,
3. Comments on the "Contlnentol Approach"
( i) I t w ill be seen th a t fp r an offence to be punishable under, fo r
Instance, the French war crimes la v i t must be shown to have v io la te d not
only the laws and usages of war but also the relev an t municipal la v s. While
the J u ris d ic tio n of courts s e t up under such laws as the French Ordinance
cannot (in theory a t le a s t) be -ider than th a t of co u rts, lik e the B ritis h

* I ta lic s in se rte d .
** See pages 28h-7.
/M ilita ry
 e / cnAA .19
Fags l40

M ilita ry Courts, which are simply empowered to tr y v io la tio n s of the laws

and usages of war, i t can c e rta in ly he narrower than th a t Ju risd ic tio n .
That th is p o s s ib ility is net a merely th e o re tic a l one was 6hewn by
th e successful appeal to th e Cour de Cassation of Hugo Grunor, ex-
K re is le ite r cf Thann, against th e sentence of death passed on him (as on
Bcbert V/agncr, ex-G auleiter of Alsace, and others) by the Permanent
M ilita ry Tribunal a t Strasbourg, which sa t from 23 A pril to 3 Mey 1946.
Grner x/as charged and found g u ilty on 3 May of the premeditated
murder of four B ritis h prisoners of war on German s o il, despite the plea
put forward on 23 A pril by h is Counsel th a t the Tribunal lacked Jurisdiction
since the acts had not been committed e ith e r in Prance or in te r r ito r y under
the a u th o rity of France or against or to the prejudice of any of the
persons mentioned in the f i r s t paragraph of the Ordinance of 23 August I 9W,
The Tribunal hed re je c te d th is argument, s ta tin g th a t, under A rticle 177
of the Code de Ju stic e M ilita ir e , the decision on the question whether an
offenco cernes w ithin the J u ris d ic tio n of a M ilita ry Tribunal and the
a u th o rity to commit the t r i a l to such Tribunal r e s ts with the Juge
d 'in s tru c tio n ; the Orders fe r T ria l issued by the Juge d 'in s tru c tio n
(ordonnances de renvoi) have the same e ffe c t as Orders fo r T ria l issued by
th e Indictm ents D ivision of th e Court of Appeal (a rre ts de ren v o i). I t
y\
i s an e stab lish ed p rin c ip le th a t th e " a rre t de renvoi" issued by the Court
of Appeal i s c o n stitu tiv e of th e J u ris d ic tio n of th e Court to which i t
commits the case fo r t r i a l . The same p rin c ip le applied to th e Order for
T r ia l issued by th e Juge d 'in s tru c tio n where such Order replaces the
decision of th e Court of Appeal. No rep ly ly in g against th e Order
of the Juge d 'in s tru c tio n of 6 A pril 1946, i t had become f in a l.
In i t s judgment of 24 July 1946, th e Cour de C essation, a fte r quoting
th e provisions of th e f i r s t paragraph of A rtic le 1 of th e Ordinance, pointed
out th a t the T rib u n al's decision of 3 May 1946, sta te d th a t Grner was, by
th e answers made to th e questions Nos. 146 to 153, declared g u ilty of four
a c ts of voluntary homicide, each sp ecified by questions Nos. 31-38 in the
follow ing term s: "Is i t proved th a t on the 7th October, 1944, a t
Beinwoiler (Baden) a hemicide was v o lu n ta rily committed against the
person of an English prisoner of war of unknown address?" "Did th is murder
immediately precede, eoccapeny or follow th e murder s e t out in the
question?"
The crimes s e t out in tl- charge against Grner were shown by the
answers made to the above-mentioned questions to have been committed in
Germany against th e persons of so ld ie rs of an A llied army and were not
among those which, according to th e terms of the Ordinance of 28 August 19^>
could be prosecuted before French M ilitary Tribunals and tr i e d according
t o French laws.
/r* r '
 E/CK.fc/W.19
Page 141

I t followed th a t, ln app-ying to Grmer provisions of the said

Ordinance, the decision which was challenged v io la te d these provisions and
had no le g a l b a sis .
The Court quashod the ru lin g o f 23 A pril 19k6, which re je c te d the
arguments of Grner based on lack of competence, together w ith the Judgment
of 3 Kay 1946, as f a r as i t re la te d to Grner.
Since the acts contained in ti.u charge ag ain st Cruner did not f a l l
within the J u ris d ic tio n of the e x istin g French Courts, th e Court s ta te d
that a reference back fo r r e - t r i a l was not p o ssib le and th a t Grner was
to be freed i f he was not detained fo r another reason o r required by an
A llied a u th o rity .
I t would seem, on the other hand, th a t G rner's offence would have
fallen w ith in the J u ris d ic tio n , fo r in stan ce, o f the Norwegian Courts.
After th e sentence already quoted,* A rtic le 1 o f th e Norwegian Law of
12 December 19k6 (No. I 1!-) continues:
* "In accordance w ith the terms o f the C iv il Criminal Code,
A rtic le 12, paragraph k, w ith which should be read A rtic le 13,
paragraphs 1 and 3/ th e above pro v isio n ap p lies a lso to a c ts
committed abroad to the prejudice o f A llied le g a l in te re s ts or o f
in te re s ts which, as la id down by Royal proclam ation, are deemed
to be equivalent thereto ."* *

* See pages I 36- 7.

** The provisions o f the C ivil Criminal Code quoted in the t a r t above
run as follow s:
"A rticle 12. Norwegian Criminal Law, except when otherwise sp ecified
or la id down by agreement with a fo reig n country, is applicable to
acts which have been committed...............
(k) abroad by a foreigner when the a ct e ith e r:
(a) is included among those d e alt with in the following
A rtic le s of th is law: (Here follow a se rie s of paragraph
numbers), o r,
(b) is a crime which is also punishable according to the
municipal law of the country in which i t was committed
provided th a t the defendant's temporary or permanent
domicile is Norway.
Where the p u n ish a b ility of the a c t is dependent on or influenced by
an actu al or prem editated r e s u lt, the act 1 g considered to have been
committed both where the a ct was a c tu a lly committed and where the
r e s u lt took place or was intended to take place.
A rtic le 13. The prosecution of crimes mentioned in A rtic le 12 (k)
can only be c a rrie d out according to Royal decision.
Whenever a person is prosecuted in Norway fo r an a c t fo r
which he ha3 already been prosecuted in another country,
the punishment already r Tiered must, as f a r as p o ssib le,
be deducted from the new term cf punishment."
/The Norwegian
z /ca.h hi.io
Pago 142

The Norwegian M inistry of J u stic e and P olice In I t s explanatory

memorandum* s ta te d th a t th e reference to A llie d le g a l in te re s ts had been
included In t i e proposed law in order to make i t c le a r th a t i t would be
w ithin the coiipetence of Norwegian Courts, where d e sira b le , to t r y alleged
war crim inals fo r offences against th e laws and customs of war committed
in A llied Countries.
There seems no reason why th e same would not apply to offences against
th e laws and customs of war committed ag ain st A llie d n a tio n a ls in Germany.
( ) Tie requirem ent la id down by the French and Norwegian war crimes
enactments, among o th e rs, to the e ffe c t than an alle g ed war crime must be
shown to have offended not only th e laws and usages o f war bu t also
municipal law, is not w ithout i t s accompanying d if f ic u l tie s . I t has already
boen seen** th a t Klinge was enabled thereby to claim th a t the re tro activ e
a p p lic atio n of the Ordinance under which he was sentenced to death was
contrary to a more fundamental document having v a lid ity in th e municipal
law of Norway, namely the Norwegian C o n stitu tio n . A m inority c f Judges
of the Supreme Court indeed voted in favour o f h is appeal.
A more general d if f ic u lty , however, a ris e s out o f th e need cn the part
o f the le g is la to r to see to i t th a t th e municipal la v is supplemented, where
necessary, in order to ensure th a t the provisions o f th a t law are wide
enough to provide against those war crimes, as the term i s understood in
cu rren t le g a l thought, which i t was the in te n tio n o f the a u th o ritie s
concerned to prosecute.
Thus A rtic le 1 of the French Ordinance of 28 August I 9W , s ta te s that,
"in p a rtic u la r" c e rta in specif. ~d provisions o f the Code Pdnal and Code de
J - s tic a M ilita ire s h a ll be the subject of prosecution in accordance with
the provisions s e t out on page I 36 of th is Chapter i f they have been
committed in the circumstances described th e re in . F u rth er, A rticle 2 of
the Ordinance lays down th a t c e rta in war crimes s h a ll be tre a te d as the
v io la tio n of c e rta in sp ec ifie d provisions o f the Codes:
"A rtic le 2. The provisions o f.th e Code P /nal and of the Code
de Ju stic e M ilita ire s h a ll be in te rp re te d as follow s:
1. The i lle g a l recruitm ent of armed fo rc e s, as sp ecified in
A rtic le 92 of the Cede Penal, s h a ll include a l l recruitm ent
by the enemy or h is agents;
2. Criminal a sso c iatio n , as sp ec ifie d in A rticles 265 e t uoq
o f th e Code Pnnl, s h a ll include w ith in i t s scope organizations
or agencies engaged in system atic terro rism ;

* See page 137.

** See page I 38.
/3 . Poisoning
 3. Poisoning, as sp ecified in A rtic le 301 of the Code Pnal,
s h a ll include the exposure of persons in gas chambers, the
poisoning of water or fo o d stu ffs, and the depositing, sp rin k lin g ,
or applying of noxious substances intended to cause death;
4. Premeditated murder, as sp ecified in A rtic le 296 of the Code
Penal, s h a ll include k illin g as a form of re p ris a l;
5. Ille g a l r e s tr a in t, as sp ec ifie d in A rtic le s 341, 3^2 and 343
o f the Code Paal, s h a ll include forced labour of c iv ilia n s and
deportation fo r any reason whatever of any detained or interned
person against whom no sentence which is in accordance with the
laws and customs of war has been pronounced.
6. Ille g a l r e s tr a in t, as sp ec ifie d in paragraphs 1 and 2 of
A rtic le 344 of the Code Penal, s h a ll Include the employment on
war work of p risoners of war or conscripted c iv ilia n s ;
7. Ille g a l r e s tr a in t, as sp ec ifie d in the l a s t paragraph of
A rtic le 344 of the Code pnal, s h a ll include the employment of
p risoners of war cr c iv ilia n s in order to p ro te c t the enemy.
8. P illa g e , as sp ecified in A rtic le s 221 e t seq, of the Code
de J u stic e M ilita ire , s h a ll include th e im position o f c o lle c tiv e
fin e s , excessive or i lle g a l re q u is itio n in g , co n fiscatio n or
s p ilia t'io n , the removal o r export from French te r r it o r y by
whatever means of property of ary kind, including movable
property and money."
A rtic le 2 of the Luxembourg Law of 2 August 1947/ contains a sim ila r
collection of paragraphs, in te rp re tin g provisions of the Code Penal of
Luxembourg so as to cover various types o f war crimes.
There are very few provisions in Norwegian crim inal law d ire c tly and
sp ecifically concerned w ith foreign war crim inals. The g re a t m ajority of
the offences which could be punished as war crimes are in th e ir nature,
covered by clauses of the Norwegian c iv il and m ilita ry crim inal codes
having general a p p licatio n . There can be no doubt, claimed the M inistry,#
"that an execution c a rrie d out as means of re p ris a l c o n stitu te s murder
(Article 233 of the C ivil Criminal Code). I t is equally c le a r th a t the
employment o f prisoners o f war or c iv ilia n s as liv in g b u ffers against
enemy forces can be c la s s ifie d as murder, manslaughter, in f lic tin g bodily
injury, e tc . C ollective fin e s (contrary to th e Hague R egulations),
requisitioning, co n fiscatio n and th e lik e must be regarded as robbery.
Any employment of priso n ers of war or c iv ilia n s contrary to th e reg u latio n s

* See page 137.

/o f in te rn a tio n a l
E/CN.4/W.19
tage l44

of in te rn a tio n a l law, ille g a l con scrip tio n fe r forced labour, internment,

deportation, e t c ,, are to be regarded as ille g a l deprivation of
freedom."
The M inistry maintained, however, th a t: "Tho German economic
ejqplaitation of Norway stands in th is resp ect in a class by i t s e l f . Its
scale and the forms in which i t has been c a rrie d out l i e in some respects
so f a r beyond the usual conception of crim inal law th a t i t is d if f ic u lt or
even impossible to regard the d iffe re n t a c ts as being w ithin the scope of
e x istin g provisions of the C iv il or M ilitary Criminal Codes. In order to
amend th is deficiency the M inistry consider i t necessary to la y down a
sp ecial p rovision which covers every kind of German e x p lo ita tio n in Norway
performed by force or th re a t th ereo f . . . . . Acts lik e the excessive issue of
currency n otes, unreasonable fix in g of p ric e s , irresp o n sib le exp lo itatio n
of clearin g agreements, e tc ., can hardly be assim ilated w ith any
p a rtic u la r crime already defined and covered by the law. I f crim inal
prosecution against those in d iv id u ally responsible in th is connection
should a r is e , i t is deemed necessary th a t the law should give c e rta in
in stru c tio n s to those adm inistering the law. Those re g u la tio n s, however,
should be given a very comprehensive though general form, considering the
v a rie d economic tra n sac tio n s which may a ris e in th is connection."
Accordingly the following p ro v isio n is made by A rtic le 2 o f the Law
on the Punishment o f Foreign War Criminals:
I 1
"C onfiscation of p roperty, re q u is itio n in g , im position of
co n trib u tio n s, ille g a l im position of fin e s , and any other form of
economic gain ille g a lly acquired by force or th re a t o f fo rc e , are
deemed to be crimes ag ain st th e C iv il Criminal Code, A rtic le 267 and
A rtic le 268, paragraph 3."
The Netherlands Lav of July 1947 (S tatu te Book H.233) has succeeded
in following in a sense the Continental approach while a t th e same time
ensuring th a t no war crime or crime against humanity as defined in
A rtic le 6 (b) and (c) of the Charter of the In te rn a tio n a l M ilitary
Tribunal w ill go unpunished beoause of lack of J u ris d ic tio n on the part
of the Netherlands Courts. That law adds a new A rtic le 27a to the
Extraordinary Penal Law Decree, of which paragraphs 1 and 2 read as follows:
"1. He who during th e time of th e p resen t war and while in the
forces o r service of th e enemy S tate is g u ilty of a war crime or any
crime ag ain st humanity as defined in A rtic le 6 under (b) or (c) of
the Charter belonging to th e London Agreement o f 8th August 145
promulgated in Our Decree of 4th January 1946 (S tatu te Book No. G.5)
s h a ll, i f such crime contains a t the same time th e elements of a
/punishable
 E/CN.WW.19
Page 145

punishable a c t according to Netherlands Law, receive the punishment

la id down fo r such a c t.
2. I f such crime does > j a t the same time contain th e elements of
a punishable a c t according to the Netherlands law, the p e rp e tra to r
s h a ll receive the punishment la id down by Netherlands law fo r the
act with which i t shows the g re a te st s im ila r ity ."*
Sum-,ary of the Contents c f the Appendix to th is Chapter
I t may be found convenient th a t a short summary be in se rte d a t th is
point o f the contents of the Appendix to th is Chapter.**
The Appendix contains those municipal enactments concerning J u ris d ic tio n
vhich, due to shortage of time, could not be subjected to any d e tailed
examination or a n aly sis. Like a l l such p ro v isio n s, they are of considerable
importance to the study of tne p ro te c tio n o f human rig h ts since they
determine what types of offenders can be brought before the c o u rts, and i t
seemed e s s e n tia l th erefo re th a t they should a t le a s t be quoted in th is
Report. I t has been decided th erefo re th a t they should be s e t out in an
Appendix to the present Chapter.
The Appendix f i r s t quotes the relev an t United Kingdom and E r itis h
Commonwealth px-ovisions, and the differen ce which e x ists between the
ju risd ic tio n of the A ustralian War Crimes Courts on the one hand and those
of the United Kingdom and Canada on the o th er i 3 shown.
There follows a b r ie f re.' .ence to the United State's law on the
subject, the re le v an t reg u latio n s being quoted elsewhere. The Chinese
provisions are then quoted and those o f Greece.
The ju ris d ic tio n o f the Courts of Belgium, Czechoslovakia, Poland and
Yugoslavia over war crim inals and t r a i t o r s are then quoted, and a tte n tio n
is fin a lly paid to the J u ris d ic tio n of the M ilitary Government Courts in
Germany, both before and a f te r the s e ttin g up of the separate A llied
Zones o f C ontrol. A rtic le I I of Law No. 10 of the A llied Control Council
and A rticles 9, 10 and 11 of the Charter of the In te rn a tio n a l M ilita ry
Tribunal are quoted and th e ir sign ifican ce in th is connection is in d icated .
In re sp ec t of each country or le g a l system, some In d icatio n is given
of the type of Court responsible fo r the t r i a l of war crim inals.

* I ta lic s in serted .
** See pages 2?4-30lt.
/C. VIOLATIONS
E/CN.4/W.19
Pa 146

C. VIOLATIONS OP THE R IG H TS OP THE V IC TIM S OP WAR CRIMES

1. A llie d I rb a b ita rts o f Occupied T e rrito rie s

JU L & JS id S 5 L Jto_ L ife . h e a lth and Personal In te g rity
A la rc e number o f offences fo r which war crim inals have been condemned
have co n stitu ted v io la tio n s of the rig h ts to l i f e , h e alth and personal
in to g rity of a llie d in h ab itan ts of occupied t e r r i t o r i e s . One relevant
general provision which was quoted, fo r in stan ce, in the indictm ent in the
case against Otto Ohlendorf and twenty-four o th e rs, Subsequent Proceedings
Case No, 9; held before an American M ilitary Tribunal a t Nrnberg, is
A rtic le ij-3 of the Hague Convention, which reads as follows
"The au th o rity o f the power of the S tate having passed de
facto in to the hands c f the occupant, the l a t t e r s h a ll do a l l
in h is power to re s to re , and ensure, as f a r as p o ssib le , public
order and sa fe ty , respecting a t the same tim e, unless absolutely
prevented, the lavs in force in the country."
The provision most o ften quoted during war crime t r i a l s in th is
connection, however, is A rtic le h6 o f the Hague Convention, perhaps
hesause i t forbids more e x p lic itly the types of offences fo r which the
alleged war crim inals a re brought before the c o u rts. This a r t i c l e reads
as follows:
"Family honour and r ig h ts , in dividual l i f e , and p riv a te
property, as w ell as reZ igious convictions and worship, must
be respected.
P r iv a te p r o p e r ty m ust n o t b e c o n f is c a te d ."

A rtic le k6 is often quoted, fo r in stan ce, in concentration camp

t r i a l s . For example, the prosecutor in the t r i a l of Jo se f Kramer and
fo rty -fo u r o th ers, held before a B ritis h War Crimes Court a t Luneburg
from 17 September - 17 November 19^5 (the Belsen t r i a l ) , in h is closing
address, claimed th a t the in h ab itan ts o f occupied t e r r it o r ie s were
p ro tected by A rtic le k6 and went on to quote the te x t of paragraph 383 of
Chapter XIV of the B ritis h Manual of M ilitary Law, which bears a strong
lik en ess to the a r tic le of the Hague Convention: " I t is the duty of the
occupant to see th a t the liv e s o f in h ab itan ts are respected, th a t th e ir
domestic peace and honour are not d istu rb ed , th a t th e ir re lig io u s
convictions are not in te rfe re d w ith, and generally th a t duress, unlawful
and crim inal attack s on th e ir persons, and felonious actions as regards
th e ir property, are ju s t as punishable as in times of peace."*

* See War Crime T ria l Law Reports published fo r the United Nations War
Crimes Commission by H. M. S tationery O ffice, London, Volume I I , page 105*
/ i n the
 E/CH.H/W.19
Page 1U7

In the Zyklon B case (the t r i a l of Bruno Tesch and two o th ers, held
before a B ritis h M ilitary Court a t Hamburg from 1 - 8 March 1946) the
ovner of a firm which arranged fo r the supply of poison gas to Auschwitz,
among other d e stin a tio n s, and h is second-in-?onsaand were found to have
known of the fa c t th a t th is poison gas was used fo r k illin g A llied
nationals interned in concentration camps and were sentenced to death,
Hsre again, the prosecution re lie d upon A rtic le 46 of the Hague- Convention,
to which, as th e prosecutor pointed out, both Germany and Great B rita in
wer p a rtie s .
To quote a t r i a l held in the Par E ast, i t may be pointed out th a t
A rticle 46 appears among the provisions 3aid to have been v io la te d by
Takashi Sakai, tr i e d by the Chinese War Crimes M ilitary Tribunal of the
M inistry of National Defence, Nanking, on 27 August 1946. This accused
was found g u ilty , in te r a l i a , of in c itin g or perm itting h is subordinates
to wound non-combatants, to rape, to plunder, to deport c iv ilia n s , to
indulge in cruel punishments and to rtu re , and to cause d estru ctio n of
property.
Among the many other t r i a l s which are relev an t in th is connection,
the following may bo mentioned: The t r i a l of Max Pauly and th ir te e n
others held a t Hamburg from l8 March to 3 May 1946, (the Neuengamme T r ia l),
the t r i a l of Hermann Vogel and fiv e o th ers, held before th e P o lish Special
Criminal Court in Lublin from 27 November - 2 December 1944 (the Majdanek
t r i a l ) and the t r i a l o f Yamura Saburoh held before the Netherlands
Temporary Courts M artial a t Balikpapen (N .E .I.) on 13 September 1946.
Prance, as an ex-occupied te r r it o r y , has held a larg e number o f t r i a l s
for offences committed against c iv ilia n s , e sp e c ia lly offences causing
death and personal in ju ry . A larg e number o f re p o rts on such t r i a l s are
in the custody o f the United Nations War Crimes Commission, but the relev an t
a rtic le s of in te rn a tio n a l conventions are not mentioned in the French
d o cu m en ts supplied, ( c f ., page 153) I t is c le a r, however, th a t the many
cases of u n ju s tifie d k illin g , wounding, e tc . which appear in these t r i a l s ,
would come w ithin the scope of A rtic le 46 of th e Hague Convention.
A llegations o f terro rism against the c iv ilia n population are relev an t
in th is connection, (c f. the Dutch t r i a l mentioned above and the t r i a l of
Eberhard von Mackensen and Kurt Maelzer, German n a tio n a ls, tr i e d by a
M ilitary Court fo r the T ria l of War Criminals a t Borne on l8 -
30 November 1946)
Cases o f rape f a l l w ithin th is heading, (c f. t r i a l of Hans M uller,
held before a M ilitary Tribunal a t Angers on 30 November 1945,) and also
cases involving medical experiments ( c f . th e t r i a l of Martin G o ttfried Weiss

/and th irty -n in e
E/CN.k/W.19
Page 148

and th irty -n in e others held before a General M ilita ry Government Court at

Dachau from 15 November - 13 December 19^5 / th e Dachau Concentration Camp
t r i a l / and the t r i a l o f Erhard Milch before an American M ilitary Tribunal
a t Nrnberg from 4 February - l 6 A pril 19k7 ./Nrnberg Subsequent
Proceedings T ria l No. 2 /.)
In connection with mercy k illin g s , reference should be made to the
t r i a l of Otto Sukipp and Kurt Kiehne, General M ilitary Government Court at
Ludwigsburg, 9 A pril 19k6.
A rtic le I I of the Chinese Law of 2k October 19k6, governing the tria l
o f war crim inals makes some in te re s tin g provisions in i t s paragraph 3
which are re le v an t:
"A rtic le I I . A person who commits an offence which f a lls under
any one o f the following categories s h a ll be considered a war
crim inal ....................
3. A lien combatants or non-combatants who during th e war or
a period of h o s t i l i t i e s ag ain st the Republic of China or prior
to the occurrence of such circum stances, nourish in ten tio n s of
enslaving, c rip p lin g , or a n n ih ila tin g the Chinese Nation and
endeavour to carry out th e ir in te n tio n s by such methods as
(a) k illin g , starv in g , massacring, enslaving, or mass
deportation of i t s n a tio n a ls, (b) stupefying the mind and
co n tro llin g the thought of i t s n a tio n a ls, (c) d is trib u tin g ,
spreading, or fo rcin g people to consume, n a rco tic drugs or
forcing them to c u ltiv a te p la n ts fo r making such drugs,
(d) forcing people to consume or be innoculated w ith poison,
or destroying th e ir power of p ro creatio n , or oppressing and
tyrannising them under r a c ia l or re lig io u s p re te x t, or treating
them inhumanly."
(ii) The Right to Freedom of Movement
Cases involving charges o f deportation are re le v an t in th is connection.
See fo r instance the t r i a l by a Chinese M ilitary Tribunal re fe rre d to on
page Ik ? ; t r i a l f Robert Wagner and s ix o th e rs, held before a French
M ilita ry Tribunal a t Strasbourg on 3 May 19k6; and t r i a l of
Wilhelm A rtur K onstatin Wagner before the Norwegian E idsivating Lagmannsrett.t
from August - October 19k6. Slave labour is d e a lt with in the t r i a l of
Erhard Milch, tr ie d by an American M ilitary Tribunal a t Nrnberg frcm
k February - l 6 A pril 19^7, in the t r i a l of Carl Krauch and twenty-two
others which was opened by an American M ilita ry Tribunal a t Nrnberg on
lk August 19k7, and in the t r i a l o f A lfried Krupp von Behlen und Haibach
and eleven o th ers, which w ill be held a t Nrnberg before an American
M ilitary Tribunal (Subsequent Proceedings Cases Nos. 2, 6 and 10).
/Conditions
 E/CN.U/W.19
Page 149

Conditions under which deportation becomes a crime a re s e t out in the

Judgment of the Milch t r i a l . Reference should also ho made to the t r i a l
of Captain E itaro Chinohara and two others before en A ustralian M ilitary
Court a t Rabaul from 30 March - 1 A p ril 19^6.
The deportation of c iv ilia n s and the compulsory enlistm ent of so ld ie rs
among the in h ab itan ts of occupied te r r ito r y are sp e c ific a lly declared war
crimes by the Canadian War Crimes Law* and by A rtic le I I I of the Chinese
Wer Crimes Law. A rtic le 3 (3) of the Yugoslav War Crimes Law maies
sim ilar provisions.** A rtic le 2 (l) and (5) of the French Ordinance of
28 August 19+4, s ta te s th a t:
"1. The i lle g a l recruitm ent of armed fo rces, as sp ecified in
A rtic le 92 of the Code Penal, s h a ll include a l l recruitm ent by
the enemy or his agents; ...........................................
5. I lle g a l r e s tr a in t, as sp ecified in A rtic le s 3^1, 3^2 and
3^3 of the Code Penal, s h a ll include forced labour of c iv ilia n s
and deportation fo r any reason whatever of any detained or interned
person against whom no sentence which is in accordance w ith the
laws and customs of war has been pronounced...."
( i i i ) The r l^ h t to a F a ir T ria l
Even members of an underground movement have the r ig h t to a f a i r
t r i a l on capture. Many o f the t r i a l s mentioned under "2. A llied
C ivilians in Occupied t e r r i t o r i e s who take up Arms ag ain st th e Enemy"
(see page 152) are re le v a n t here. The question o f the wrongful extension
of the Nazi law and courts ^;o occupied te r r i t o r i e s i s d e a lt w ith in the
t r i a l of Jo se f A lts to tte r and f if to e n o th e rs, tr ie d by American M ilitary
Tribunal a t Nrnberg (Subsequent proceedings Case No. 3 ), and reference
should a lso be made in th is connection to the t r i a l of Robert Wagner and.
six others before a French M ilitary Tribunal a t Strasbourg on 3 May'19*16.
In the l a t t e r case, the Court e stab lish ed th a t on sev eral occasions
Wagner v io la te d the r ig h t to f a i r t r i a l of French c itiz e n s who did not
comply w ith compulsory enlistm ent in the German fo rces. On a l l these
occasions bagner in stru c te d the prosecutors what punishment to request
and imposed upon the Judges the sentence to be pronounced by them in the
t r i a l of such French c itiz e n s . In one o f two sp e c ific cases subm itted,
concerning a Theodor Witz, the o ffic e r in charge of the prosecution was
of the opinion th a t the offence deserved four to fiv e years imprisonment.
This prosecutor went on leave and was replaced, by another who, J o in tly
with tho President of the Court, acted upon Wagner's in s tru c tio n s . The
result was th a t the defendant was sentenced to death and executed.

* See page 125.

** See page 295.
/The victim
E/ ctT.U/w.19
Page 190

The victim vas a youth and h is offence consisted In the possession of a

p is to l o f a very old type.
( lv) Family Bights
"Ifcoily Bights" are s p e c ific a lly p ro tected by A rtic le 46 of the
Hague Convention, and many o f the offences fo r which war crim inals have
been condemned have, In f a c t, c o n stitu te d v io la tio n s of these rig h ts.
Examples are provided, fo r Instance, by the s p littin g up of fam ilies for
purposes of deportation to slave labour.
In the t r i a l of H einrich Geriko end seven others before a B ritish
M ilitary Court a t Brunswick from 20 March to 3 A pril 1946 (the Velpke
C hildren's Home Case), th e prosecution re lie d upon A rtic le 46. In thlB
case, various accused were found g u ilty of boing "concerned in the killing
by w ilfu l neglect of a number of ch ild ren , P o lish n a tio n a ls". I t was
shewn th a t they were im plicated in the establishm ent and running of a
home to which P olish female workers in a d i s t r i c t of Germany were forced
to send th e ir children; th e object boing to fre e the parents fo r forced
labour fo r the b e n e fit c f the German economy. Many of th e children died
through n eglect.
(v) B ellgious Bights
V iolations of re lig io u s r ig h ts , In te r a l i a , wore alleg ed in the tria l
of General Tomoyuki Yamashita, tr i e d before an American M ilitary Commission
a t Manila, P hilippine Islan d s, from 1 October - 7 December 1945. In this
case, i t was shows th a t, among the g reat d e stru ctio n caused by troops
under the accused's command, fig u red the d e stru ctio n of re lig io u s edifices.
Such d e stru c tio n o f re lig io u s property may lfewever p e ss lb ly be b e tte r
classed vevder the heading of devastation o f property ra th e r than under the
heading of v io la tio n of Individual re lig io u s r ig h ts .
"Forced conversion to another fa ith " is declared crim inal by
A rtic le 3 (3) of the Yugoslav War Crimes Law of 25 August 1945.*
(v i) Property Bights
A llegations of v io la tio n s o f property rig h ts have been frequent in
war crime t r i a l s . Once again, "p riv ate property" is s p e c ific a lly mentioned
in A rtic le 46 of th e Hague Convention.
There are many examples among th e t r i a l s by French M ilitary Tribunals
of th e d e stru ctio n or th e f t of property in occupied France. Among other
t r i a l s dealing w ith d estru ctio n of property may be mentioned the t r i a l of
.Takashi Sakai by the Chinese War Crimes M ilitary Tribunal of the Ministry
of N ational Defence, Nanking on 2J August 1946.

* See page 130.

/TSob t r i a l
 E/CN.U/W.19
Page 151

The t r i a l o f F ried rich FLick and fiv e o th e rs, before an American

M ilitary Tribunal a t Nrnberg (Subsequent Proceedings T ria l No. 5 ), and
the Krupp t r i a l , (Subsequent Proceedings No. 10), deal w ith economic
p illa g e among other m atters. Also o f in te re s t in the same connection are
the Milch t r i a l (Subsequent Proceedings No. 2) the t r i a l of Oswald Pohl
and seventeen o th e rs, tr i e d before an American M ilitary Tribunal a t
Nrnberg (Subsequent Proceedings No. 4 ), and the t r i a l o f Carl Krauch and
tventy-tvo o th e rs, which was opened before on American M ilita ry Tribunal
at Nrnberg on l4 August 194-7 (the I . G. Farben In d u strie case,
Subsequent Proceedings No. 6).
I t may be re le v an t to mention under th is heading provisions made In
several Instruments of municipal law declaring I t a war crime to I n f lic t
c e rta in types of in ju ry upon the economic system o f an occupied country,
since such offences In a sense do m aterial harm to the economic rig h ts of
the individuals liv in g In the te r r it o r y in question. Ohus, A rtic le I I I
of the Chinese Law of 24 October 1946, declares to be war crimes, not
only "confiscation of property", "indiscrim inate d estru ctio n of property",
"robbing" end "unlawful e x to rtio n or demanding contrib u tio n s or
re q u isitio n s" but a lso "depreciating the value of currency or issuing
unlawful currency notes". So a lso "debasement of the currency and issue
of spurious currency" is declared a war crime In the Canadian Instrument
of Appointment o f the Board o f Inquiry appointed on 3 September 1945.*
A Norwegian pi a v is 1on tre a tin g various types o f i lle g a l economic gain as
war crimes is quoted elsewhere.*
(v ll) Civic Rights
Perhaps cases involving den atio n alizatio n would f a l l under th is
heading; see fo r instance the t r i a l of U lrich G re ife lt and th ir te e n others
which w ill be held a t Nrnberg before an American M ilitary Tribunal
(Subsequent Pioceedingp No. 8) in which the a lle g a tio n s include aharges
of Genocide. Genocide also charged in the t r i a l of Otto Ohlendorf and
twenty-three others (the ''Einsatzgruppen" t r i a l ) which 3 being held a t
Nrnberg before an American H lita ry Tribunal (Subsequent Proceedings
No. 9 ). Two fu rth e r t r i a l s vhibh are of In te re s t in th is connection are
the French t r i a l of Eobert Wagncr^jBee page 149) and also the t r i a l of
Josef A lts to tte r (Subsequent Proceedings No. 3)-
The t r i a l of Wagner and others codsp-ma, in te r a l i a , recruitm ent fo r
the b e n e fit of the enemy, and a lso what oAqunts to the crime o f "genocide"
as defined in tho re so lu tio n adopted by the 'pneral Assembly o f the

* See page 285.

** See page 144.
/U nited Nations
K/CN.4/W.19
age 152

Uhl te d Nations on 11 December l$h6,* and bb proeecsxted before the Nrnberg

Tribunal ag ain st the Major German War Criminals under A rtic le 6 (c) of
the Nrnberg OJu^rter.* The prosecutor did not use the expression "genocide",
but th e allegp.t ions made a g ain st Wagner included the attem pt to achieve a
complete Gormantzation o f Alsace.
The follow ing are seme ty p ic a l passages from the Indictment in th is
oooneotlon:
" ........ Fiench in sc rip tio n s disappeared even in v illa g e s ; personal
names v. ire genaonieed, Tench monuments were taken away or destroyed;.,
tho French language was elim inated both from adm inistrative
in s titu tio n s , and from public use; German r a c ia l le g lsx a tio n was
in tro d u c e d .. . .Jews were expelled as v e il as n a tio n a ls whom the
German a u th o ritie s tre a te d as in tru d e rs . The property o f p o litic a l
a sso c ia tio n s and Jewish property were co n fiscated as w ell as
property acquired a f te r 11th November, 191.. .Nazi tu itio n was
immediately introduced in schools and u n iv e r s itie s .. .only Germans
had the r ig h t to te a c h ;........ In 19^1 th e French franc was withdrawn;
compulsory labour was in tro d u ced .. . . Various decrees made
applicable German penal and c iv il law, economic and fin a n c ia l
le g is la tio n , and sp e c ia l laws re la tin g to p o litic a l c rim e s .... From
August 19U2. . . .m ilita ry serv ice was made com pulsory.... Wagner
decided to tra n s fe r A lsatians in sid e the Belch. Over 1*0,000 were
Interned in the camp o f Schirm erk.. . . Numerous young men were shot
fo r having refused to serve in the Wehrmacht. When th e resistan ce
to the compulsory m ilita ry enlistm ent grew, Wagner did not h esitate

* Cf. United N ations, Resolutions adopted by th e General Assembly during

the acond a rt of its ' ffiirst Session from 2% EWr to
15' December 1 9 ^ ^ Lake' Success, New York. Iw 7 . gages "38-19,
R esolution No, 9bt declaring th e following;
"Genocide is a denial of the rig h t of existence of e n tire human
groups, as homicide is the d en ial of the rig h t to liv e of individual
human b e in g s .. . .The General >issembly, th e re fo re , affirm s th a t genocide
is a crime under in te rn a tio n a l law which the c iv iliz e d world condemns
and fo r the commission of which p rin c ip a ls and accomplices - whether
p riv a te in d iv id u als, public o f f ic ia ls or statesm en, and whether the
crime is committed on re lig io u s , r a c ia l, p o litic a l or any other grounds
are punishable".
** Of, Indictment of the prosecutors, Count Three, (a ), paragraph 2, where
i t is stated :
'They conducted d e lib e ra te and system atic genocide, v iz ., the
exterm ination of r a c ia l and n atio n al groups, ag ain st the c iv ilia n
populations of c e rta in occupied te r r it o r ie s in order to destroy
p a rtic u la r races and classes of people and n a tio n a l, r a c ia l or
re lig io u s groups........ "

/to victimize
 E/CN.U/W.19
Page 153

to victim ize the fam ilies which were deported to Germany. He

in te rfe re d with the adm inistration of ju s tic e , giving orders as to
the punishments the prosecutors had to request and the Judges had
to impose in cases considered to be p a rtic u la rly serio u s."
I t may be added th a t under the Canadian War Crimes Law the expression
"war crime" includes "attempts to denationalize the in h ab itan ts of
occupied te r r ito r y " , and th a t A rtic le I I I of the Chinese War Crimes Law of
2k October 1 9 ^ , includes w ithin the d e fin itio n of "war crime" "scheming
to enslave the in h ab itan ts of occupied te r r it o r y or to deprive them of
th e ir sta tu s and rig h ts as n atio n als of the occupied country".
2. A llied C iv ilian s in Occupied T e rrito rie s who Take up Arms ag ain st
the Enemy
Provisions re la tiv e to the question of the le g a l p o sitio n of a llie d
c iv ilia n s in occupied t e r r it o r ie s who take up arms ag ain st the enemy are
A rticles 1 ~ 3 of the Hague Convention, which provide as follows:
"A rtic le 1 . The laws, rig h ts , and d u ties of war apply not only to
the army, but also to m ilitia and volunteer corps f u l f i l l i n g a l l
the following conditions:
(1) They must be commanded by a person responsible fo r h is
su b o rd in ates;..........
(2) They must have a fixed d is tin c tiv e sign recognizable a t a
distance;
(3) They o ust carry arms openly; and
(k) They must conduct th e ir operations in accordance w ith the laws
and customs of war.
In countries where m ilitia or volunteer corps c o n stitu te the
army, or form p a rt of i t , they are included under the denomination
army
A rtic le 2 . The in h ab itan ts o f a te r r it o r y not under occupation who,
on the approach p f the enemy, spontaneously take up arms to r e s i s t
the invading troops w ithout having had time to organize themselves
in accordance w ith A rtic le 1, s h a ll be regarded as b e llig e re n ts i f
they carry arms openly, and i f they resp ect the laws and customs
o f war.
A rtic le 3 . The armed forces of the b e llig e re n ts may c o n sist of
combatants and non-combatants. In the case of capture by the
enemy, both have the rig h t to be tre a te d as prisoners o f war."
T ria ls which are of in te r e s t in th is connection include the t r i a l
of Yamamoto Chusaburo by a B ritis h M ilitary Court a t Kuala Lumpur on
30 January to 1 February 19k6, the t r i a l of Karl Buck and ten others
before a B ritis h M ilita ry Court a t Wuppertal from 6 to 10 May 19^6, the
/ t r i a l of
 I/CN.VW.19
Page I 5U

t r i a l o f EoJnrich K lein and fourteen o thers before a B ritis h M ilitary

Court a t 1 upp ertal from 22-25 May 19b6, the t r i a l of General V ictor
Alexander F rie d ric h W illy Seeger and fiv e o thers before a M ilitary Court
a t WupT'v rta l from I 7 June - 11 Ju ly 1 9 ^ , the t r i a l of General Tomoyuki
Toman i t a , tr i e d by an American M ilita ry C m ission a t Kanila frcm
1 O eober - 7 December 19^5 the t r i a l of Wilhelm L is t and eleven others
b efo re an American M ilita ry Tribunal a t Nurnburg (Subsequent Proceedings
Jase Ko. 7)> the t r i a l o f L/Cpl. Rehei Okmura and two others before an
A u stralian M ilita ry Court a t Rabaul from I 3- I 8 December 19^5> the t r i a l
o f Werner Kretzschmar before a French M ilita ry Tribunal a t Angers on
27 March 19^+6 the t r i a l of Johann Gonz before a French M ilita ry Tribunal
a t Toulouse on 16 A p ril 19M , the t r i a l of Richard Wilhelm Hermann Bruns
and tiro o thers before a Horwegian E id siv atin g Lagmannsrett on
20 March 19^6 and the t r i a l o f K ritt-nalsekretor W illie August Resting,
and N ils P e te r Berhard HJelmberg by the Gulating Lagmaaasrott in
March 1 9 ^ , and by the Supreme Court o f Norway, Ju ly I'jkB.
3. A llied C iv ilia n s outside Occupied T e rrito ry
On a narrow in te rp re ta tio n , the Hague Convention does not p ro tect
c iv ilia n s outside o f occupied te r r ito r y , since the heading o f Section II
of the Hoague Convention Is "M ilitary A uthority over the te r r ito r y of
the H ostile S ta te " . This in te rp re ta tio n has n o t, however, prevailed.
For instance, in the Hademar t r i a l , (the t r i a l of Alphons K lein and six
others before an American M ilita ry Commission a t Wiesbaden which was
completed on 15 October 19M ) various accused were found g u ilty of
taking p a rt in the d e lib e rate k illin g o f, among oth er people, over 1*C0
P olish and Soviet n a tio n a ls, many i f not most of whom were c iv ilia n s , by
in je c tio n s of poisonous drugs. Here, the f a c t th a t the offences took
place in HaJamar, Germany, and not in occupied te r r ito r y , vas, of course,
tre a te d as e n tire ly irre le v a n t. Another example among the many in
existence, is the Belsen t r i a l . In thi3 t r i a l , the offences committed
in Auschwitz and those committed in Beigen were tj/saw d by the court a3
being on e n tire ly the same fo o tin g , the f a c t th a t Belcen was on German
t e r r i t o r y and Auschwitz in occupied Poland being tre a te d as beside the
p o in t from the le g a l po in t of view. In h is opening statem ent in the tria l,
the prosecutor quoted paragraphs M2 and M 3 of the B ritis h Manual of
M ilita ry Law:
"M2. War crimes may be divided in to four d iffe re n t c lasses:
(1) V iolations o f the recognized ru le s of warfare by members
of the armed fo rc e s . . .
M 3. The more important v io la tio n s are the following . . .
ill-tre a tm e n t of prisoners of w ar;. . . ill-tre a tm e n t of
in h ab itan ts in occupied t e r r i t o r y . . . "
/The Prosecutor
 E/CN.VW.19
Pee 155

The Prosecutor claimed th a t although the words "inhabitants in

occupied countries" were used, i t was obvious th a t they should be extended
to " a ll in h ab itan ts of occupied countries who have been deported from th e ir
own country," the deportation, in f a c t, being a fu rth e r infringem ent.
In the t r i a l of Hoinrich Gerike and seven others (the Velpke
C hildren's Home case, to which reforence has already been made*),
various accused were found g u ilty of being concerned in the k illin g by
w ilfu l neglect of Polish children born on German te r r it o r y .
A rtic le k6 of the Hague Convention was d rafted a t a time when
deportations fo r forced labour on the scale c a rrie d out by Nazi Germany
could not have been contemplated, and s t r i c t l y speaking, applies only
to the behaviour of the occupying pewor w ithin the occupied te r r ito r y .
Nevertheless, i t is c le a r th a t the general ru le la id down th e re in must
be v a lid also in resp ect of in h ab itan ts of the occupied te r r it o r y who
have been sent in to the country of the occupant fo r forced labour, as
had mothers of the children who were sent to the VelpkeBaby Home, and
to the child ren bom to them while in c a p tiv ity . The prosecutor in th is
t r i a l pointed out, as did the prosecutor in the Belsen t r i a l , th a t such
deportation was In i t s e l f contrary to in te rn a tio n a l law, as was s ta te d in
Oppenheim-Lauterp ach t, In te rn a tio n a l Law, Volume I I , 6th E d itio n , on
pagos 3^5-6, in the following passage:
" .... t h e r e is no rig h t to deport In h ab itan ts to tho country o f the
occupant, fo r the purpose o f compelling them to work th e re . When
during the World War the Germans deported to Germany several
thousands of Belgian and French men and women, and compelled them
to work th e re , the whole c iv iliz e d world stigm atized th is cru e l
p ra c tic e as an o u trag e."
I t could, of course, have boen argued by the defence in both the
Belsen t r i a l and in the Velpke Bby Home t r i a l tlia t the offence of
deportation was committed by persons oth er than the accused; nevertheless
i t seems reasonable to assume th a t the in h ab itan ts of an occupied
te r r ito r y keep th e ir rig h ts under In te rn a tio n a l Law when forced to leave
th e ir own country, even though th is la. not expressly provided in the
Hague Convention.
For tho rig h ts of deported labour, reference should he made to
tho Judgment in the Milch t r i a l (Subsequent Proceedings No. 2 ).
*(. Non-Allied N ationals
Enemy n a tio n a ls are l e f t unprotected in war crime t r i a l s proper,
by c o n tra st w ith t r i a l s of what are known as "crimes ag ain st humanity".

* See page I 50.

/For instance
E/CN.4/V.19
Page 1^6

For instance, the B ritis h Royal Warrant provides, in Regulation 1, that ,

the offences to be tr ie d by B ritis h M ilita ry Courts s h a ll only be
v io la tio n s o f tho laws and usages of war committed during any war in which
His Majesty has been or may be engaged a t any time Bince 2 September 1939*
The question received some discussion during the course of the
Belsen t r i a l (see page 146). On 3 October 19^5> the defence objected to
tha proposal of the prosecution to put in a ffid a v its which included the
a lle g a tio n of an offence committed ag ain st a Hungarian g i r l . Defence
Counsel pointed out th a t the charge ag ain st the accused re fe rre d to the
committing of a war crime which involved the ill-tre a tm e n t and k illin g
o f a llie d n a tio n a ls . Counsel also thought th a t i t was w ithin the
knowledge o f tho court th a t a war crime could not be committed by a
German ag ain st a Hungarian since the l a t t e r would not be an A llied
n a tio n a l. The Prosecutor made two jo in ts in replying: Hungary, ho
sa id , l o f t tho Axis beforo A p ril 19^5 and had come a to the A llied
sid e; a t th a t time, th e re fo re , the Hungarians were a t le a s t some form
o f A llie s , though Counsel did not know to what e x te n t. A more general
p o in t made by the Prosecutor was th a t what he was try in g to prove was
the treatm ent of the A llie d inmates o f th e camp. He thought th a t he
was p e rfe c tly e n title d to put before the Court evidence o f the treatment
of other persons in the camp. I f th ere were ten people and he wanted
to prove th a t one of them was badly tre a te d , in the P ro secu to r's
submission, he was p e rfe c tly e n title d to prove th a t the ten were badly
tre a te d . The treatm ent of a l l the inmates in the camp was relev an t
to show the treatm ent of any in d iv id u al inmate.
The Court decided th a t the paragraph be included in the evidence
before the Court.
Colonel Smith* claimed th a t only offences ag ain st A llie d nationals
could be regarded by the Court as war crimes, and th a t "A llied nationals"
meant n a tio n a ls of the United N ations. The term th erefo re excluded
Hungarians and I ta lia n s . As has boon seen, the Prosecutor him self in
e ffe c t disclaim ed any in te n tio n o f charging the accused of crimes against
persons other than A llied n a tio n a ls. Both Prosecution and Defence
th erefo re recognized th a t, under the Royal Warrant, the Ju risd ic tio n
of B ritis h M ilita ry Courts is lim ited to the t r i a l of war crimes proper
and excludes crimes against humanity as defined in A rtic le 6 (c) of the
C harter of the In te rn a tio n a l M ilitary T ribunal. B ritis h M ilita ry Courts
doal with Buch crimes only i f they are also v io la tio n s of the laws and
usages of war.

# Counsel fo r the Defendants in general.

/N evertheless,
 E/CN.4/W.19
Page 157

N evertheless, i t must bo added th a t offences ag ain st n o n -allied

nationals do f a l l w ithin the J u risd ic tio n of some courts other than
In te rn a tio n a l M ilita ry Tribunals in Nrnberg and Tokyo, fo r instance,
some of tho United S tates M iltary Commissions appointed fo r the T ria l
of War Crimes.
Of those, the narrowest J u ris d ic tio n is th a t vested in the M ilita ry
Commissions appointed in the Mediterranean Theatre of O perations. In tho
Mediterranean Regulations (Regulation l) the expression "war crime" means
a v io la tio n of the laws and customs of war.*
Under tho European D irective** (paragraph 1 a ), M ilita ry Commissions
arc appointed fo r tho t r i a l of porsons who are charged with v io la tio n s
of tho laws or customs of war, of the law o f nations o r of the laws o f
occupied te r r ito r y , or any p a rt th e re o f. The European D irective adds
therefore to tho J u ris d ic tio n of M ilita ry Commissions v io la tio n s o f the
laws of nations other than the laws o r customs of war, and v io la tio n s of
tho lo c a l law of the occupied te r r it o r y . In Regulation 5 of the P a c ific
September Regulations, the offences fa llin g under tho J u ris d ic tio n of the
M ilitary Commissions are described as follows:
"Murder, to rtu re o r ill-tre a tm e n t of p riso n ers of war o r persons
on the seas; k illin g or ill-tre a tm e n t of hostages; murder, to rtu re or
ill- tre a tm e n t, or deportatio n to slave labour or fo r any oth er i lle g a l
purpose, of c iv ilia n s o f, o r in , occupied te r r ito r y ; plunder of
public or p riv a te property; wanton d e stru ctio n of c i t i e s ; towns or
v illa g e s ; d ev astation, d e stru ctio n or damage of public or p riv a te
property not J u s tif ie d by m ilita ry n e ce ssity ; planning, p reparation,
i n i tia tio n or waging of war o f aggression, o r an invasion o r war in
v io la tio n o f in te rn a tio n a l law, tr e a tie s , agreements or assurances;
murder, exterm ination, enslavement, doportation or other inhumane
a c ts committed a g ain st any c iv ilia n population, or persecution on
p o litic a l, r a c ia l, n a tio n al or re lig io u s grounds, in execution of
or in connection with any offence w ithin the J u ris d ic tio n of tho
commas?ion, whether or not in v io la tio n of the domestic law of the
country where perpetrated; and a l l other offences against the laws
o r cuet.vma of war; p a rtic ip a tio n in a common plan or conspiracy to
accomplish any of the foregoing. Leaders, organizors, in s tig a to rs ,
accessories and accomplices p a rtic ip a tin g in the form ulation or
execution of any such common plan or conspiracy w ill be held responsible
fo r a l l a c ts performed by any person in execution of th a t plan or
conspiracy.

* By command of General McNarney, Regulations fo r tho T ria l of War Crimes

fo r the Mediterranean Theatre of Operations were made on 23 September ljU;
by C ircular No. 11^.
** By cemmand of General Eisenhower, a d ire c tiv e regerding M ilitary
Commissions in the European Theatre of Operations was made by an
Order o f 25 August * 5 . /lh e p a c lflc
 E/CNA/W.19
Page 158

The P acific Regulations of ? December 19^5,* define the offences to

be tr i e d by the M ilita ry Commissions in the P ao ific Theatre in the following
words (Regulation 2 (to)):
"(1) M ilita ry Commissions, e sta b lish e d horounder s h a ll have Jurisdiction
over a l l offences including, not lim ited to , the follow ing'
(a) The planning, p reparation, in itia tio n or waging of a war
c f aggression or a war in v io la tio n of in te rn a tio n a l
tr e a tie s , agreements or assurances, or p a rtic ip a tio n in
a common plan or conspiracy fo r the accomplishment- of
any of the foregoing.
(b) V iolations of the laws or customs of war. Such violations
s h a ll include, bu t not be lim ited to , murder, ill-trcatm ont
o r deportation to slave labour or fo r any other purposo of
c iv ilia n population of or in occupied te r r ito r y ; murder of
ill- tre a tm e n t of prisoners of war or in tern ees or persons
on the seas or elsewhere; improper treatm ent of hostages;
plunder o f public or p riv ate property; wanton destruction
o f c i tie s , towns or v illa g e s; o r d ev astatio n not Ju stified
by m ilita ry n e ce ssity .
(c) Murder, exterm ination, enslavement, d ep o rtatio n and other
inhuman acts committed ag ain st any c iv ilia n population
before or during the war, or persecutions on p o litic a l,
r a c ia l or re lig io u s grounds in execution o f, or in connection
w ith, any crime defined herein; whether o r not in violation
of the domestic laws of the country vhoro perpetrated.
(2) The offence need not have been committed a f te r a p a rtic u la r date
to render tho responsible p a rty c r p a rtie s su b ject to a rre st,
b u t in general should havo been committed since or in the period
immediately preceding tho Mukden in cid en t of 18 September 1931 "
In tho China Regulations** the J u ris d ic tio n of the Commission is
circum scribed aB follow s: "The m ilita ry commissions e sta b lish e d hereunder
s h a ll have J u ris d ic tio n over the following offences: V iolations of
th e lews or customs of war, including bu t n e t lim ited to murder, torture,
o r ill-tre a tm e n t or priso n ers o f war o r persons on the seas; k illin g or
Ill-tre a tm e n t o f hostages, murder, to rtu re or ill-tre a tm e n t, o r deportation
to slave labour or fo r any other i lle g a l purposes, of c iv ilia n s of, or
in , occupied te r r ito r y ; plunder of public o r p riv a te property; wanton

* "Regulations Governing the T ria l of Accused War Crim inals", issued

by General MacArthur.
** A s e t of Regulations issuod fo r the China Theatre on 21 January 19^*
/destruction
 E/CN.10.19
Page 159

d estruction of c itio s , towns or villages} devastation, d estru ctio n or

damage of public or p riv a te property not J u s tifie d by m ilita ry n ecessity ;
murder, exterm ination, enslavement, deportation or other inhuman acta
committed against any c iv ilia n population, or persecution on p o litic a l,
ra c ia l, n a tio n a l or re lig io u s grounds, in execution of or connection
with any offenco w ithin the J u ris d ic tio n of the commission, whether or
not in v io la tio n of the domestic law of the country where p erp etrated ;
and a l l other o ffonces ag ain st the laws or customs of war; p a rtic ip a tio n
in a common plan or conspiracy to accomplish any of the foregoing.
Loaders, organizers, in s tig a to rs , accessories and accomplices p a rtic ip a tin g
in the form ulation or execution of any such common plan or conspiracy
w ill bo h eld responsible fo r a l l a c ts performed by any person in execution
of th a t plan or conspiracy."
In describing tho offences subject to t r i a l by M ilitary Tribunals
the Regulations used in the P a c ific Theatre and in China r e f le c t the
influence of the Four Power Agreement of 8 August 19^-5, and p a rtic u la rly
of A rtic le 6 of the Charter of the In te rn a tio n a l M ilita ry Tribunal annexed
to i t . Under tho Charter tho In te rn a tio n a l M ilita ry Tribunal has
J u risd ic tio n over;
(a) Crimes ag ain st peace,
(b) War Crimes, namely v io la tio n of the laws o r customs o f war, and
(c) Crimes ag ain st humanity.
M ilita ry Commissions operating under the P a c ific Regulations have
J u risd ic tio n over a l l offences, including, but not lim ited to , tho th ree
typos o f offonce8 enumerated. I t i s also expressly s ta te d there th a t
tho offences need not have been committed a f te r a p a rtic u la r d ate, b u t in
gonoral should havo been committed since o r in the period immediately
preceding the Mukden in cid en t o f 18 September 1931-
T ria ls by tho courtB actin g under Law Fo. 10 of the A lliod
Control Counr-il fo r Germany a lso , o f course, poetess J u ris d ic tio n over
crimes ag ain st humanity (and indeed over crimes ag ain st peace), as w ell
as over war crim es. (See page 13*0 . I t should be added th a t paragraph 2
of the la n is h Act o f 12 Ju ly 19^6, regarding the punishment of war crim inals
states th a t " . . . This a c t s h a ll apply . . . also to a l l a c ts which, though
not s p e c ific a lly c ite d above, are covered by A rtic le 6 o f the Charter of
the In te rn a tio n a l M ilita ry Tribunal
N eutral c itiz e n s are a lso , to some degree, p ro tected by war crime
t r i a l s . For in stan ce, A rtic le 1 o f the Norwegian Law o f 13 December 19^6
on the Punishment o f Foreign War Criminals, provides:

* Regarding A rtic le 6 of the C harter see above, Chapter I , Section B.

/"Acts which
 "Acts which, by roaeon of th e ir character, come w ithin the scope
o f Norwegian crim inal le g is la tio n are punishable, according to
Norwegian law, i f thoy wsro oommittod in v io la tio n o f the laws and
customs of war by enemy c itiz e n s or other a lie n s who were in enemy
s e rv ico o r under VMay orders, an iL lf "the sa id a c ts ware committed
in Norway o r were d ire c te d ag ain st Norwegian c itiz e n s o r Norwegian
in te r e s ts . In accordance w ith the terms of the C iv il Criminal
Code No. 12, paragraph w ith which should be read No. 13,
paragraphs 1 and 3, tho above pro v isio n applies a lso to a c ts committed
abroad to the prejudice of A llie d le g a l rig h ts or o f rig h ts which, as
la id down by Royal Proclamation, are deemed to bo equivalent thereto."*
An explanatory memorandum o f the Norwegian M inistry o f Ju stic e and
Police dealing with th is law s ta te s th a t, in re fe rrin g to rig h ts which are
equivalent to A llie d rig h ts , the PrcJbctmen had in mind p a rtic ul a rly :
(a) Danish c itiz e n s and th e ir economic In te re s ts , and (b) n e u tra l citizens
in Norway o r other A llie d armed forces o r persons employed in othor Allied
war work.
C ertain categories of n e u tra l c itiz e n s would seem a lso to be protected
by A rtic le 1 of tho French Ordinance o f 28 August 1 9 ^ , concerning the
prosecution of war crim inals, which provides as follow s:
"A rtic le I , Enemy n atio n als or agents of o th er than French nationality
who arc serving enemy adm inistration or in te re s ts and who are guilty
o f ctimos o r offences c o m itte d ' since the beginning o f h o s tilitie s ,
e ith e r in France or in t e r r i t o r i e s under the a u th o rity of France, or
ag ain st a French n a tio n a l, or a person under French p ro tectio n , or a
person serving or having served in the French armed fo rces, or a
s ta te lo s s person ro sid en t in French t e r r it o r y before 17 June 1 9 ^ ,
or a refugee resid in g in French te r r ito r y , o r ag ain st the property
o f any n a tu ra l persons enumerated above, and ag ain st any French
corporate bodies, s h a ll be prosecuted by French m ilita ry tribunals
and s h a ll be Judged in accordance with the French laws in force, and
according to the provisions s e t out in the p resen t ordinance, where
such offences, oven i f committod a t the time or under the pretext
o f an e x istin g s ta te of war, are not ju s tif ie d by the laws and
customs of war."
A rticlo VII of the Chinese Law of 2h October 1$k6, governing the
t r i a l of war crim inals, provides th a t:
"Alien combatants and non-combatants who committed any of the offences
provided under A rtic le I I ag ain st the A llied Nations or th e ir nationals,

* Ita lic s n o t in th o o r i g i n a l .
/o r against
 E/CN.tyW.19
Page I 6l

o r ag ain st a lie n s under tho p ro to o tlo n 'o f the Chinese Government aro
subject to the a p p licatio n o f the present Law." ( I ta lic s in s e rte d .)
Relevant in th is connection also is the t r i a l of Johann Schvarzhubcr
and f if te e n o th ers, tr ie d before a M ilita ry Court a t Hamburg from
5 December I 9U6 - 3 February, 19^7, (the Ravensbruck Concentration Camp T r ia l) .
Of some in te r e s t in connection with tho requirement th a t a breach of
the. laws and usages o f war cannot involve offences by enemy n atio n als
against enemy n a tio n a ls, is tho question whether te r r it o r y can be annexed
while war i s s t i l l in progress. Thus, in the Bolaon tr ia l* the defence claimed
th a t a numbor of the victim s of a tr o c itie s committed in Belsen and
Auschwitz had ceased to be A llied n a tio n als and had become German subjects
as a r e s u lt of the annexation of th e ir Homelands by Germany. The prosecution
rep lied th a t before i t was possible fo r a country to be annexed, the war
must be ended. While a war was s t i l l in progress, the c itiz e n s were
e n title d to the p ro tectio n of the Hague Convention.
Oppenhoim-Lauterpacht, In te rn a tio n a l law, Velumo I , F if th E dition,
page i<-50, s ta te s th a t tho a c t of fo rc ib ly talcing possession of a p a rt of
an emeny's te r r it o r y during tho continuance of war, "although the conqueror
may intend to keep the conquered t e r r it o r y and th erefo re to annox i t , does
not confer a t i t l e so long as the war has not term inated e ith e r through
simple cessation of h o s t i l i t i e s or by a tre a ty o f peace. Therefore, tho
p ractice, which sometimes p re v a ils, o f annexing during a war a conquered
part of enemy te r r it o r y cannot be approved. For annexation of conquered
enemy t e r r it o r y , whether o f the whole or o f p a rt, confers a t i t l e only a f te r
a firm ly e sta b lish e d conquest, and so long as war continues, conquest i s not
firm ly e sta b lish e d .
This doctrine was underlined in the judgment of the In te rn a tio n a l
M ilitary T ribunal a t Nrnberg where i t was sta te d :
"A fu rth e r submission was made th a t Germany was no longer bound
by the ru le s of land warfare in many of the t e r r i t o r i e s occupied
during tho war because Germany had completely subjugated those
countries and incorporated them in to the German Reich, a f a c t which
gave Germany a u th o rity to deal w ith the occupied countries as though
they were p a rt of Germany. In the view o f the Tribunal i t is
unnecessary in th is case to decide whether th is doctrine of subjugation,
dependent as i t i s upon m ilita ry conquest, has any a p p lic atio n where
the subjugation is the r e s u lt o f the crime of aggressive war. The
doctrine was never considered to bo applicable so long as th ere was
an army in the f ie ld attem pting to resto ro the occupied countries to

* See page 1^6.

/ t h e i r true
 E/CN .yw .l9
Page 162

th e i r tru e owners, and in th is case, th e re fo re , the doctrine could not

apply to any t e r r i t o r i e s occupied a f te f 1 September 1939 As to the
war crimes committed in Bohemia and Moravia, i t i s a s u ffic ie n t answer
th a t these t e r r i t o r i e s were never added to the Belch, bu t a mere
p ro tecto rato was esta b lish e d over them."*
The same problem was touched upon in the Milch t r i a l . (See page lWJ).
5. Armed Forces
Vory few t r i a l s have so f a r been brought to the a tte n tio n o f the
United Nations War Crimes Cocmission In which a ll g a tio n s o f v io latio n s
o f laws and customs of war, designed to p ro te c t the fig h tin g forces
a g ain st il l e g a l means of w arfare, have beon the su b ject of t r i a l s .
In the t r i a l of S.S. Brigade fiihrer Kurt Meyer, hold by a Canadian
M ilita ry Court a t Aurich from 10-28 December 19^5 i t was alleged,
in te r a lia , th a t the accused, in v io la tio n of the laws and usages of war,
during the fig h tin g in 19^3 - 19^> in Belgium and Prance, " in c ite d and
counselled troops under h is command to deny q u a rte r to a llie d troops,"
and th is was one of the charges on which Meyer was found g u ilty . Neverthelcw
i t is doubtful whether such offences should be c la s s if ie d as offences against
the members of armed forces or offences ag ain st p riso n ers o f war. They
are of course s p e c ific a lly p ro h ib ited by A rtic le 23 (d) of the Hague
Convention which provides:
"A rtic le 23. In a d d itio n to the p ro h ib itio n s provided by sp ecial
Conventions, i t is p a rtic u la rly forbidden:
(d) To declare th a t no q u arter w ill he g iv o n ;"
6. P risoners of War
Cases concerning offonces ag ain st priso n ers of war and against
in h a b ita n ts of occupied t e r r i t o r i e s form the two main categories of war
crime t r i a l s .
() In te rp re ta tio n o f the term "Prisoner o f War"
Under th is heading, the following questions, among o th e rs, should be
examinod:
(a) The in te rp re ta tio n of the Hague and Geneva Conventions so as
to optor criMiu3 committed n~t in camps, but on tho lin e of march.
T ria ls which are relev an t to th is p o in t include the t r i a l of
Arno Heering, hold before a B ritis h M ilita ry Court a t Hannover from
2^-26 January 19W>, in which a member o f a guard company was accused of
i l l - t r e a t i n g members of the B ritis h army and oth er B ritis h A llie d nationals
while on the march w ith a column of p riso n ers o f war from Marienburg to
Brunswick. The accused was found g u ilty , the prosecutor having submitted
th a t the column o f march described in the t r i a l was to a l l in te n ts the

* B ritis h Command Paper, Cmd. page 65

/same and
Bame and in the same p o sitio n as a Prisoner of War Camp. A ll the du ties set
out in the Geneva P risoner o f War Convention f e l l on the shoulders of
the accused.
Reference should a lso he made to the t r i a l of Capt. Shoichi Yamamoto
and ten o th e rs, Japanese n a tio n a ls, tr i e d by an A u stralian M ilita ry Court
from 20-27 May 19^6 a t Rabaul.
(h) The A pplication of the Hague and Geneva Conventions to
crimes committed again st Prisoners of War in Concentration Camps
During tne couse of the Belsen tr r 'a l ^see page 146) Col. Smith
(Defence Counsel) pointed out th a t in one of the instances charged, where
victims were prisoners of war, a B ritis h subject who had been captured
as a priso n er of war was tra n sfe rre d to tho concentration camp. This was
a c lea r in te rn a tio n a l wrong, hut the wrong consisted in ceasing to tr e a t
him as a priso n er of war, in taking him out of tho camp, where he was
protected hy the Geneva Convention, and p u ttin g him in a concentration
camp where he was exposed to the same treatm ent as any oth er inmate. The
re s p o n sib ility re s te d with those who sent him to Auschwitz or Belsen, hu t
the re s p o n s ib ility of the people a t Auschwitz and Belsen was the same in
regard to th a t man as to any other inm ate. Counsel did not know whether
they even knew he was a p risoner of war. In any case they had no option
hut to t r e a t him as anyone e l s e .
In h is closing address, tho Prosecutor claimed th a t Colonel Smith
had suggested th a t the crime involved was the moving o f the p riso n er of
war from tho priso n er of war camp in to the concentration camp and th a t
anything which happened to him th e re a fte r was thereby excused. The
Prosecutor found i t d if f ic u l t to accept the suggestion th a t i f a man were
ill- tr e a te d in a p risoner of war camp th a t was a war crime, hut i f the
ill-tre a tm e n t took place outBide in the s tr e e t or in a concentration camp,
i t was n o t.*
(0) The in te rp re ta tio n given to A rtic le 2 j (o)** of the
Hague Convention
The Hague Convention was d rafted long before the p o s s ib ility of airmen
escaping from a ir c r a f t by parachute was thought of; n ev erth eless, the
a rtic le of the Convention has, of course, been in te rp re te d to cover balcd-
out airmen, whether .captured by the enemy armed forces or by enemy c iv ilia n s .

* In so f a r as i t did not arriv e a t a sp ecial finding regarding the victim

in question, who was mentioned on the Belsen Charge Sheet, the Court
would appoar to have re je c te d Colonel Sm ith's argument.
** See pages 170*71*
/Reference
 E/C N .yW .l 9
Page 164

Reference should be made In t h i s connection f o r in sta n c e to tho t r i a l of

J o s e f Hangobl b e fo re an American M ilita r y Commission a t Dachau on
18 O ctober 1945 and to the t r i a l o f A lfred K e lle r b e fo re an American
In te rm e d ia te M ilita r y Government C ourt a t Ludwigsburg on 2 A p ril 1946.
I n connection w ith th e a p p lic a tio n o f t h i s a r t i c l e and o f th e Geneva
Convention to p a ra tro o p s , see th e t r i a l o f Hans Wichman b e fo re a B ritis h
M ilita r y Court a t Hamburg on 29 November 1945 and th e t r i a l o f H einrich Klein
and fo u rte e n o th e rs b e fo re a B r i t i s h M ilita r y C ourt a t W uppertal from
22 to 25 May 1946, and a ls o tho t r i a l o f K urt S tu d en t, b e fo re a B r itis h
M ilita r y C ourt, a t Luneberg, Germany from 6-10 May 1946.
(d) Tho q u e stio n w hether members o f R esista n ce Movements
become P riso n e rs o f War on Capture
Seo f o r In s ta n c e , th e ro fo ro n ce s made under A llie d C iv ilia n s in
Occupied T e r r ito r ie s who take up Arms a g a in s t the Enemy; see a ls o t r i a l
Of C arl Bauer and two o th e rs b e fo re a French M ilita ry T rib u n al a t Dijon,
o f which tho Judgment was d e liv e re d on 18 O ctober 1945, th e t r i a l of
H e in ric h Sasse and th ro e o th o rs , b e fo re a French M ilita r y T rib u n al a t
Bordeaux, of which th e Judgment was d e liv e re d on 15 A p ril 1946 and the
t r i a l o f Johann Gonz, h e ld b e fo re a Fronch M ilita r y T rib u n al a t Toulouse,
o f which tho judgment was d e liv e re d on 16 A p ril 1946.
I n tho f i r s t o f tho Fronch t r i a l s r e f e r r e d to above, a detachment of
German m arinos cap tu red th ro e Frenchmen w earing m ainly c i v i l i a n c lo th e s,
b u t having 3omo d is tin c tiv e m ilit a r y s ig n s as p a r t o f t h o i r garm ents, or
on th e garments them selves. One o r two had a French tr i - c o l o u r band around
th e arm as worn by members o f tho FFI and wore an American m ilita r y cap.
Tho th ro e men wore capturod i n tho course o f combats between Gorman u n its
and re g u la r Fronch tro o p s a s s is te d by members o f th e F F I. A ll woro shot
w ith o u t t r i a l and w ith o u t having committed any offen ce a p a r t from tho fact
t h a t th e y fought w ith arms a g a in s t Gorman u n i t s . Tho T rib u n al found tho
defendants g u ilty o f "murdering th re e p ris o n e rs o f war" and condemned them
t o v a rio u s p e n a l i t i e s , one o f them to d e a th . I n doing so tho Tribunal
a p p a re n tly ad m itted tho argument o f th o p ro se c u tio n t h a t what m attored
more th a n tho f a c t t h a t th e th re o cap tu ro d men woro some d is tin c tiv e
s ig n s , was tho f a c t " th a t tro o p s o f th e .F F I wore r e s i s t i n g f o r a whole
day a g a in s t t h o . . . (Gorman) column, a lo n g sid e th e re g u la r French troops,
to th e knowledge o f th e Germans, t h a t th e y woro fig h tin g a g a in s t invading
tro o p s w ithout having had th e time to o rg an ize them selves and th a t,
consequently, th e y wore covered by th o IV Hague C o n v e n tio n ..." This was a
ro fo rcn ce to A r tic le 2 o f the Hague R e g u la tio n s, which covers c iv ilia n s
"of a t e r r i t o r y n o t under o ccu p atio n ", who tak e up arms to r e s i s t the
invading tro o p s w ithout having had tim e to o rg an ize thomsolves in accordance
/w ith A rtic le 1,
with A rticlo 1, i f they carry arms openly, and i f they resp ect the laws
and customs of war. In th is case the Tribunal esta b lish e d in ad d itio n
that the cliiof defendant tr ie d to invoke tho rig h t to " re p risa ls" by
submitting in h is defonce th a t he had orderod the shooting o f captured
French combatants only i f they resumed fig h tin g .
In tho t r i a l of Lieutenant W. Kretzschmar by a French M ilita ry
Tribunal a t Angers (judgment pronounced on 25 March 191*6) i t was shown
that two members of the French R esistance Movement had attacked a small
German outpost 1th the in te n tio n o f making p risoners and bringing them
to th e ir headquarters. They fa ilo d and were in stead captured themsolvos,
one of them being wounded. Both had c iv ilia n c lo th es, but one wore a t r i
colour band around h is arm and a tri-c o lo u r badge in h is buttonhole.
The accused denied having noticed these d is tin c tiv e signs and invoked in
his defenco an order by H itle r to shoot summarily a l l irro g u la r combatants.
The Tribunal found the defendant g u ilty of homicide "not J u s tifie d by tho
lairs and customs of war" and condemned him to death. I t is to bo assumed
th at tho Tribunal admittod tho P ro secu to r's p lea which was e n tire ly based
on the existence of the d is tin c tiv e tri-c o lo u r signs and th a t, as in the
previous case, i t tre a te d tho victim s as priso n ers of war e n title d to the
protection of in te rn a tio n a l law.
Tho above two t r a i l s are an illu s tr a tio n of tho ways in which i t i s
pcssiblo to in te rp re t the meaning of A rtic lo 1 and 2 of the Hague
Regulations, and to extend recogn itio n to human rig h ts in wor time in cases
where a narrow in te rp re ta tio n would have le d to the opposite r e s u lt.
(o) The Question of tho circumstances in vhich Prisoners of War
could bo tre a te d as suspected war crim inals
See t r i a l of General V ictor Alexander F rie d ric h W illy Seegor and
five o th ers, hold before a B ritis h M ilita ry Court a t Wuppertal from
IT Juno - 11 Ju ly 191*6.
( i i ) A General Provision P rotectin g Prisoners of War
One general provision p ro tectin g priso n ers of war is A rtic le 18 of
the Geneva P risoners of War Convention, which provides th a t:
"Each P risoner of War Camp s h a ll ho placed under the a u th o rity o f a
responsible o f f ic e r . . . "
This a r tic lo was quoted, fo r in stan ce, by the prosecutor in tho t r i a l
of Amo Heering, h eld before a B ritis h M ilita ry Court a t Hannover, from
2l*-26 January I 91*6.
( i i i ) The Rinht to L ife and Health
Numerous provisions of the Hague and Geneva Conventions attempt
to secure fo r p risoners of war th e ir rig h ts to l i f e and h e a lth . These may
t>c divided in to two c ateg o ries:
/(a ) Those aimed
(a) Those aimod a t m aintaining general minimum conditions
conducive to l i f e and heulth and placing on the a u th o ritie s
holding p riso n ers, a duty to m aintain p risoners of war.
This c la ss includes the follow ing, a l l of which have been
quoted in a c tu a l war crime t r i a l s :
Haguo Convention, A rticle
"Prisoners o f war are in the power o f the h o s tile Government,
b u t not o f the in d iv id u als o r corps who capture them.
They must be humanely tre a te d .
A ll th e ir personal belongings, except arms, horses and m ilitary
papers, remain th e ir p ro p erty ."
Hague Convention, A rtic le J:
"The Government in to whose hands prisoners o f war have fallen
i s charged w ith th e ir maintenance.
In d e fa u lt of sp e c ia l agreement between the b e llig e re n ts ,
p riso n ers of war Bhall bo tre a te d , as regards ra tio n s , quarters
and clo th in g , on the same footing as the troops of the Government
which captured them."
Genova Prisoners o f War Convention, A rtic le 2:
"Prisoners of war are in the power o f the h o s tile Government,
b u t not of the ind iv id u als or formation which captured them.
They s h a ll a t a l l times be humanely tre a te d and protected,
p a rtic u la rly ag ain st a cts of violence, from in s u lts and from
public c u rio s ity .
Measures of re p r is a l ag ain st them are forbidden."
Geneva Convention, A rtic le 3 i
"Prisoners of war are e n title d to resp ect fo r th e ir persons
and honour. Women s h a ll be tre a te d with a l l consideration due to
th e ir sex.
Prisoners re ta in th e ir f u l l c i v i l c ap a c ity ."
Geneva Convention, A rtic le
'The detaining Power is required to provide fo r the maintenance
o f prisoners of war in i t s charge.
D ifferences of treatm ent between prisoners are permissible
only i f such d ifferen ces are based on the m ilita ry rank, the state
of physical or mental h e alth , the p ro fessio n al a b i l i t i e s , or the
sex o f those who b e n e fit from them."
Geneva Convention, A rtic le 7:
"As soon as possible a f te r th e ir capture, priso n ers of war
sha l l be evacuated to depots s u ffic ie n tly removed from the fightirg
zone fo r them to be out of danger.
/Only prisoners
 E/CN.VW .19
Page 167

Only p risoners who, by reason of th e ir wounds o r maladies,

would run g re a te r ris k s by being evacuated than by remaining may
be kept tem porarily in a dangerous zone.
P risoners s h a ll not be unnocossarily exposed to danger while
aw aiting evacuation from a fig h tin g son........ "
Geneva Convention, A rtic le 9:
"Prisoners of war may be in tern ed in a town, fo rtre s s ,, or
o th er place, and may be required not to go beyond c e rta in fixed
lim its . They may also be interned in fenced comps; they s h a ll
not he confined or imprisoned except as a measure indispensable
fo r safety or h e alth , and only so long as circumstances e x is t
which n e c e ssita te such a measure.
Prisoners captured in d i s t r i c t s which are unhealthy or
whose clim ate is d eleterio u s to persons coming from temporate
clim ates s h a ll he removed as soon as possible to a more favourable
clim a te .
M
Geneva Convention, A rtic le 10:
"Prisoners of war s h a ll he lodged in buildings or huts
which affo rd a l l possible safeguards as regards hygiene and
s a lu b rity .
The premises must be e n tire ly free from damp, and adequately
heated and lig h te d . A ll precautions s h a ll be taken ag ain st the
danger of f i r e .
As regards dorm itories, th e ir to ta l area, minimum cubic a ir
space, f i t t i n g and bedding m aterial, tho conditions s h a ll be the
Bamc as fo r tho depot troops of tho detaining Power."
Genova Convention, A rtic le 11:
"Tho food ra tio n of prisoners of war s h a ll be equivalent
in quan tity and q u a lity to th a t of the dopot troops.
Prisoners s h a ll also bo afforded the moans of preparing
fo r themselves such ad d itio n al a r tic lo s of food as they may
po ssess.
S u ffic ie n t drinking water s h a ll be supplied to them. The
use of tobacco s h a ll be authorized. Prisoners may bo employed
in the kitch en s.
A ll c o lle c tiv e d isc ip lin a ry measures a ffe ctin g food are
p ro h ib ite d ."
Geneva Convention, A rtic le 12:
"Clothing, underwear and footwear s h a ll be supplied to
prisoners of war by the detaining Power. The reg u lar replacement
/and re p a ir
E/CN.4/W.19
Pago 168

and ro p a ir of such a r tic le s s h a ll bo assured. Workers s h a ll also

rocoive working k its wherovor tho nature of the work req u ires i t .
In a l l camps, canteens s h a ll he in s ta lle d a t which
prisoners s h a ll be ablo to procure, a t tho lo c a l market p ric e ,
food commodities and ordinary a r tic le s .
The p r o f its accruing to tho adm inistrations of the camps
from the canteens s h a ll be u tilis o d fo r the b e n e fit o f tho
p ris o n e rs ."
Geneva Convention, A rtic le 13:
"B elligerents s h a ll bo required to take a l l necessary
hygienic measures to ensure the c lean lin ess and s a lu b rity of
camps and to prevent epidemics.
Prisoners of war s h a ll have fo r th e ir use, day and n ig h t,
conveniences which conform to the ru lo s of hygiene and are
maintained in a constant s ta te o f c le a n lin e ss.
In addition and without prejudice to the provision as fa r
as possible of baths and shower-baths in the camps, the
p risoners s h a ll be provided with a s u ffic ie n t q u an tity of
water fo r th e ir bodily c le a n lin e ss.
They s h a ll have f a c i l i t i e s fo r engaging in physical
exercises and obtaining the b e n e fit of being out of doors."
Genova Convention, A rtic le l k :
"Each comp s h a ll possess an infirm ary, where priso n ers of
war s h a ll receive a tte n tio n of any kind of which they may be in
nood. I f necessary, is o la tio n establishm ents s h a ll bo reserved
fo r p a tie n ts su fferin g from in fe c tio u s and contagious diseases.
The expenses of treatm ent, including those o f temporary
remedial apparatus, s h a ll be borne by the d etaining Power.
B ellig eren ts s h a ll be required to issu e , on demand, to any
p riso n er tre a te d , an o f f i c i a l statem ent in d ic a tin g the nature and
duration of h is illn e s s and of the treatm ent received.
I t s h a ll be perm issible fo r b e llig e re n ts m utually to authorize
each o th er, by means o f sp e c ia l agreements, to r e ta in in the camps
doctors and medical o rd e rlie s fo r the purpose of caring fo r thoir
prisonor com patriots.
Prisoners who have contracted a serious malady; or whose
condition n e c e ssita te s important su rg ic al treatm ent s h a ll be
adm itted, a t the expense of the detaining Power, to any m ilitary
or c iv il in s titu tio n q u a lifie d to tr e a t them."
/Genova
 E/CN.U/V.19
lge 169

Geneva Convention, A rtic le 17:

"B elligerents s h a ll encourage as much as p o ssib le the organization of
in te lle c tu a l and sporting p u rsu its by the priso n ers o f war."
Geneva Convention, A rtic le 25:
"Unless the course of m ilita ry cperacions demands i t , sick and
wounded prisoners of war s h a ll not be tra n sfe rre d i f th e ir recovery
might be prejudiced by the Journey."
Geneva Convention, A rtic le 27:
"B elligerents may employ as workmen p riso n ers o f war who are
p h y sically f i t , e th e r than o ffic e rs and persons of equivalent sta tu s
according to th e ir rank and th e ir a b ility .

Non-commissioned o ffic e rs who are priso n ers of war may be compelled

to undertake only supervisory work/ unless they expressly request
remunerative occupation.

Geneva Convention, A rtic le 28:

"The detaining Power s h a ll assume e n tire re s p o n s ib ility fo r the
maintenance, care, treatm ent and the payment of th e wages of p riso n ers
of war working fo r p riv a te in d iv id u a ls."
Geneva Convention, Art-1cle 32:
" I t is forbidden to employ priso n ers of war on unhealthy or
dangerous work.
Conditions of work s h a ll not be rendered more arduous by
d isc ip lin a ry measures."
Geneva Convention, A rtic le 33:
"Conditions governing labour detachments s h a ll be sim ila r to those of
prisoners-of-w ar camps, p a rtic u la rly as concerns hygienic conditions,
food, care in case of accidents or sickness, correspondence and the
reception of p a rc e ls.
Every labour detachment sh a ll be attached to a p riso n e rs' camp. The
commandant of th is camp s h a ll be responsible fo r the observance in the
labour detachment of the provisions o f the present Convention."
I t w ill be noted, of course, th a t A rtic le s 1^ and 23 are also relevant
In connection with the rig h ts of the sick and wounded (see page 178).
Examples of t r i a l s in which these a r tic le s have been quoted and in which
the rig h ts of prisoners of war to l i f e and h ealth have been vindicated, are
the following: T ria l of M artin G o ttfried Weis3 and th irty -n in e o th ers, before
tm American General M ilitary Government Court a t Dachau, from 15 November -
13 December 19^5, (the Dachau Concentration Camp c ase ), the t r i a l of
/Major General Otsuka
E/CN.tyW.19
Page IVO

Major General Otsuka and fo rty -th re e others before an American M ilitary
Commission a t Singapore from 8 August - 10 October 1 9 ^ , th e t r i a l of
G iulio Oldani, an I ta lia n n a tio n a l, tr i e d before an American M ilitary
Commission a t Florence from 31 October to 7 November 19^6; the t r i a l of
Osvcld Pohl and seventeen o th e rs, before an American M ilitary Tribunal at
Nrnberg (Subsequent Proceedings Case No. it)j the t r i a l o f F ried rich Flick
and fiv e o th e rs, before an American M ilitary Tribunal a t Nrnberg (Subsequent
Proceedings Case No. 5); the t r i a l of Carl Krauch and twenty-two others
before an American M ilitary Tribunal a t Nrnberg (the I . G. Farben Industrie
case), (Subsequent Proceedings No. 6); the t r i a l of Josef A lts to tte r and
f if te e n o th e rs, before an American M ilitary Tribunal a t Nrnberg, (Subsequent
Proceedings Case No. 3); the t r i a l of A lfried Krupp von Bohlen und Haibach,
before an American M ilitary Tribunal a t Nrnberg, (the Krupp case),
(Subsequent Proceedings No. ]0 ); the t r i a l o f Captain Wadaai Shirezu and
th ir ty - f iv e o th e rs, before an A ustralian M ilitary Court, from 2 to 18 January
I 9I+6 a t Ambon and from 25 January to 15 February 19^6 a t Morotai; the t r i a l
of Lieutenant Taisuke Kawazumi and eight o th e rs, before an A ustralian Military
Court a t Morotai from 5 - lk February 19^6; th e t r i a l of E rich KLllinger and
four others before a B ritis h M ilitary Court a t Wuppertal, from 26 November
to 3 December 19^5; the t r i a l o f Arno Heering, before a B ritis h M ilitary Court
a t Hannover from 2b to 26 January 19b6 and the t r i a l o f Kurt Student before a
B ritis h M ilitary Court a t Luneberg from 6 to 10 May 19k6.
(b) Those aimed a t ensuring th a t prisoners o f war are not exposed to
unnecessary danger, or wounded or k ille d without due cause. The following
a r tic le s of th is class have been quoted in war crime t r i a l s :
Hague Convention, A rtic le 6:
"The S tate may employ th e labour of priso n ers of war other than
o ff ic e rs , according to th e ir rank and capacity. The work sh all not be
excessive, and s h a ll have no connection with the operations of the var.
It

Hague Convention, A rtic le 23:

"In additio n to the p ro h ib itio n s provided by sp e c ia l Conventions,
i t is p a rtic u la rly forbidden:
(c) To k i l l o r wound an.enemy.who, having la id down h ie arms, or
no longer having means of defence, has surrendered a t discretion;
(d) To declare th a t no q uarter w ill be given;"

Geneva Convention, A rtic le 31:

"Werk done by priso n ers o f war sh all have no d ire c t connection with
the operations of the war. In p a rtic u la r, i t i s forbidden to employ
/prisoners
 E/CH.tyW.19
Page 171

prisoners in the manufacture or tra n sp o rt of arms or munitions of any

kind, or on the tra n sp o rt of m aterial destined fo r combatant u n its .

A rtic le 32 o f the Geneva Convention, which has been quoted above, is

also relev an t in th is connection.
T ria ls in which these a r tic le s have been quoted and in which these rig h ts
have been vin d icated , are th e follow ing: United S tates t r i a l c f General
Tomohuki Yamashita, (see page 150), United S tates t r i a l of T ik ita k i Yaichi
before a M ilitary Commission a t Yokohama on 7 March 19^6; t r i a l of
Genji Matsuda and Je ic h i Kuwashima, before an American M ilitary Commission a t
Shanghai from 5 - 1 3 September 19}+6; t r i a l o f Tomoki Nakamura, before an
American M ilitary Commission a t Yokohama from 18.September to 28 De-ember 19*^6;
tr ia l of Hiroshi F u ^ ii, a Japanese n a tio n al before an American M ilitary
Commission a t Yokohama from 28 September to 3I December 1 9 ^ j t r i a l of
Giulio Oldani, on I ta lia n n atio n al before an American M ilita ry Commission
at Florence from 3I October to 7 November 19^6; t r i a l o f Erhard Milch,
(Subsequent Proceedings case No. 2 ); t r i a l of Oswald Pohl and seventeen o th e rs,
(Subsequent Proceedings No. h)j t r i a l of F ried rich F lick and fiv e o th e rs,
(Subsequent Proceedings No. 5); t r i a l of Carl Krauch and twenty-two others
(Subsequent Proceedings No. 6); t r i a l of A lfried Krupp von Bohlen und Haibach
and eleven others (Subsequent Proceedings No. 10); t r i a l of General Anton
Postler, before an American M ilitary Commission, Borne, from 8 to 12 October 19^5
tr ia l of Otto Sandrock and th ree others (the "Almelo T rial" ) before a B ritis h
M ilitary Court a t Alm6lo , Holland, from 2k to 26 November 19^5> th e t r i a l of
Bear-Admiral Nisuke Masuda and four o th e rs, before a Uhited S tates M ilitary
Commission a t Kwajalein Islan d , Marshall Isla n d s, from 7 - 1 3 December 19^5>
(the " J a illit A toll Case"); the t r i a l of Leo Bosenau, before a B ritis h
Military Court a t Hannover on 13-August 19^6, and the t r i a l of Kurt Student
before a B ritis h M ilitary Court a t Luneberg from 6 to 10 May, 19^6.
The above a re , of course, only examples of th is type of t r i a l , since
cases involving a lle g atio n s of the k illin g o r wounding of priso n ers of war,
probably form the la rg e s t category of t r i a l s .
Two t r i a l s in which the p ro h ib itio n contained in A rtic le 23 (d) of the
Hague Begulations was re fe rre d to , are the t r i a l of S. S. B rigadefuhrer
Kurt Meyer before a Canadian M ilitary Court a t Aurich, from 10 to 28 December
19^5, and the tr ie d of Karl Maria von Behren before a B ritis h M ilitary Court
at Hamburg on 28 to 31 May 19^6.
(iv) The Bight to In te g rity ,o f the Perscn
General a r tic le s p ro te c tin g th is rig h t are the Hague Convention,
Article and A rtic le 23 (c) (see pages 166, I 70,) and th e Geneva
Convention, A rtic le s 2 and 3, (see pages 166, 99),
/These provisions
e / cn. v/ w.19
Page 172

These provisions have been quoted in numerous t r i a l s , p a rtic u la rly

where obvious ill-tre a tm e n t of p riso n ers of war is involved. In the
nature of the offences alleg ed , no such comparatively d e ta ile d regulations
are required to p ro h ib it these offonces as are required to p ro te c t the health
o f prisoners of war. (The l a t t e r must incluue, fo r in stan ce, provisions
re la tin g to food and c lo th in g , hygiene, was"ting f a c i l i t i e s , provisions for
physical ex ercise, e tc .)
Examples of t r i a l s which are relev an t in th is connection, include various
o f the concentration camp cases. Reference should also be made to the tr ia l
of Takashl Sakai, before a Chinese War Crimes M ilitary Tribunal of the
M inistry of National Eefence a t Nanking on 27 August 19^6, the t r i a l of
Karl-Hans Hermann Klinge, before th e Supreme Court of Norway on 27 February
19W , the t r i a l o f S. S. Brigadefuhrer Kurt Meyer (see page l62) the tria ls
of Erich K illin g e r and four o thers and Arno Heering, (see pages 162, 163; and
I 70); the t r i a l of W illi Mackenser before a B ritis h M ilita ry Court, Hannover,
on 28 January 10k6; the t r i a l of Giulio Oldani, before an American M ilitary
Commission (see page 170); Nrnberg Subsequent Proceedings Cases Nos. 2,
3 and h; the French t r i a l of Richard R aith before a M ilita ry Tribunal a t Nancy,
of which Judgment was delivered on 18 May 19^6; t r i a l of H einrich Heusch,
before a French Permanent M ilitary Tribunal a t Metz on 7 November 19^*6, and
the t r i a l o f P ie rre Humbert before a French Permanent M ilita ry Tribunal at
Metz on 9 January 19^7-
I t i s , perhaps, re le v an t to include here cases illu s t r a t i n g the
p ro h ib itio n of the in fra c tio n of excessive punishment on p riso n ers o f war.
The re le v an t a r tic le s are;
Geneva Convention, A rtic le b6:
"Prisoners of war s h a ll not be subjected by th e m ilita ry authorities
or the trib u n a ls of th e d etaining Power to p e n a ltie s o th er than those
which are prescribed fo r sim ilar a c ts by members o f th e n atio n al forces.
> O fficers, non-commissioned o ffic e rs o r p riv a te s o ld ie rs,
prisoners of war, undergoing d is c ip lin a ry punishment s h a ll not be
subjected to treatm ent le s s favourable than th a t p rescrib ed , as regards
the same punishment, fo r sim ilar ranks in the armed forces of the
detaining Power.
All forms of corporal punishment, confinement in premises not
lig h te d by daylight and, in general, a l l forms of c ru e lty whatsoever,
are pro h ib ited .
C ollective p e n a ltie s fo r individual acts are also prohibited."
Geneva Convention, A rtic le 5^:
"Imprisonment is the most severe d isc ip lin a ry punishment which may
be in f lic te d on a p riso n er of war.
/The duration
 e / cn.^ / w. 19
Pag 173

The duration of any single punishment s h a ll n et exceed th ir ty

days. . . "
Relevant t r i a l s include United S tates t r i a l of G iulio Oldani, (3ee page 17
and B ritis h t r i a l of Amo Heering. (See pages l62, I 63).
A t r i a l i l lu s tr a tiv e of the p ro h ib itio n contained in A rtic le 2 of the
Geneva Convention, concerning the exposing ox p riso n ers of war to in s u lts and
public c u rio s ity , i s the t r i a l of Lieutenant General Kurt Maelzer, before an
American M ilita ry Commission a t Florence from 9 to 14 ^September 19^6-
. (v) The Right to Freedom of Movement
Reference is made to pages 114 - 115 fo r c e rta in m aterial r e la tin g to
the shooting of p riso n ers o f war while try in g to escape. A p riso n er o f war
must n o t, o f course, be shot fo r attem pting to escape.
A rtic le 50 o f the Geneva Convention, provides as follows:
"Escaped p riso n ers o f war who are re-captured before they have
been able to re jo in th e ir own armed forces or to leave the te r r ito r y
occupied by the armed forces which captured them s h a ll be lia b le only
to d isc ip lin a ry punishment.
Prisoners who, a f te r succeeding in re jo in in g th e ir armed forces
or in leaving the te r r it o r y occupied by the armed forces which
captured them, are again taken p riso n er s h a ll not be lia b le to any
punishment fo r th e ir previous escape."
Relevant t r i a l s are: T ria l of Sub-Lieutenant Matagi Honji and
P/o Eizo Kurokawa, before an A ustralian M ilitary Court a t Morotai on
18 February I 9U6; t r i a l Of Captain Eyotaro Yamamoto and twelve o th e rs, before
an. A ustralian M ilitary Court a t Rabaul from 3 * 6 May 19^6 and the t r i a l of
Captain Toma Ikeba and three o th e rs, before an A u stralian M ilitary Court a t
Rabaul from I 5 to l6 May 19^6.
F urther, the defence th a t the "prisoner was shot while try in g to escape"
cannot be pleaded successfully i f th e only purpose of h is escape was to save
himself from being k ille d , contrary to in te rn a tio n a l law; see t r i a l of
Johann Melchior and Walter Hirschelmonn before an American General M ilitary
Government Court a t Ludwigsburg from 22 to 2k January 19^6
The Geneva Convention provides, in A rtic le 13, th a t prisoners of war
"shall have f a c i l i t i e s fo r engaging in physical exercises and obtaining the
benefit of being out-of-doors". The Hague Convention provides, in A rtic le 5>
that:
"Prisoners o f war may be in tern ed in a town, fo r tr e s s , camp o r other
place, and are bound not to go beyond c e rta in fix ed lim its ; but they
cannot be placed in confinement except as an indispensable measure o f
sa fe ty , and only while the circumstances which n e c e ssita te th e measure
continue to e x is t." /in is l a s t
E/CN.VW.19
Page 174

Ih is l a s t p a ir o f provisions seems to f a l l mere n a tu ra lly under the

heading "Sicht to Freedom o f Movement" than dees the previous discussion of
the p o sitio n regarding priso n ers who attem pt to escape. N evertheless, the
le g a l position, regarding priso n ers who tr y to escape has some in te re s t and
th is sectio n would seem to be the most appropriate one in which to include a
reference to the p o in t.
Further t r i a l s il l u s t r a t i v e o f th e p ro te c tio n o f the rig h t of freedom
of movement o f prisoners of war are th e following: the t r i a l o f Colonel
Stefano O rofalo, an I ta lia n n a tio n a l, before a B ritis h M ilita ry Court a t
Afragola on 20 and 21 May I 9U6; th e Dachau Concentration Camp case,
(see page 1^7); the American t r i a l o f Johann Melchior and W alter Hirschelmaim,
(see page 172); Subsequent Proceedings cases Nos. 2, 3, ^ and 10, and the
Canadian t r i a l of Johann Neitz before a M ilita ry Court a t Aurlch from
15 to 25 March 1 9 ^ -
(v i) The Bight to F a ir T ria l
A number of provisions deal with th e rig h t to f a i r t r i a l . The Geneva
Prisoners of War Convention provides as follows in A rtic le s 60 to 67 which
comprise the contents of the sectio n headed " Ju d ic ia l Proceedings":
A rtic le 60;
"At the commencement o f a ju d ic ia l hearing a g a in st a p riso n er of war,
th e detaining Power s h a ll n o tify th e re p re se n ta tiv e o f th e protecting Pove
as soon as p o ssib le , in any case before the date fix ed fo r the opening
o f the hearing.
The said n o tif ic a tio n s h a ll contain the follow ing p a rtic u la rs :
(a) C iv il sta tu s and rani: of the p riso n er.
(b) Place of residence or detention.
(c) Statement of the charge o r charges, and o f th e le g a l
provisions applicab le.
I f i t i s not possib le in th is n o tific a tio n to in d ic a te particulars
of the court which w ill tr y th e case, the date o f th e opening of the
hearing and the place where i t w ill take place, th ese p a rtic u la rs shall be
furnished to the re p resen tativ e o f th e p ro te c tin g Power a t a la te r date,
but as soon as possib le and in any case a t le a s t th re e weeks before the
opening of the hearing."
A rtic le 6l :
"No prisoner of war s h a ll be sentenced w ithout being given the
opportunity to defend him self.
No p risoner s h a ll be compelled to admit th a t he is g u ilty of the
offence of which he is accused."
A rtic le 62:
"The priso n er of war s h a ll have the rig h t to be a s s is te d by a
q u a lifie d advocate o f h is own choice, and, i f necessary, to have recourse
/to the offices
 E/CN.VW.19
Page 175

to the o ffic e s of a competent in te rp re te r. He s h a ll be informed of

his rig h t by the detaining Power in good time before th e hearing.
P a llin g a choice on the p a rt o f the p riso n e r, the p ro tectin g Power
may procure an advocate fo r him. The detaining Power s h a ll, on the
request of the p ro tectin g Power, fu rn isn to th e l a t t e r a l i s t of persons
q u a lifie d to conduct the defence.
The re p resen tativ es of th e p ro te c tin g Power s h a ll have the rig h t to
attend the hearing of the case.
The only exception to th i3 ru le is where the hearing has to be
kept se c re t in the in te re s ts of the sa fe ty of the S ta te . The
detaining Power would then n o tify th e p ro te c tin g Power accordingly."
A rtic le 63:
"A sentence s h a ll only be pronounced on a p riso n er of war by the
same trib u n a ls and in accordance w ith the same procedure as in the case
of persons belonging to the armed forces of th e detain in g Power."
A rtic le 6k:
"Every p riso n er of war s h a ll have th e rig h t o f appeal ag ain st any
sentence against him in the same maimer as persons belonging to the
armed forces o f the detaining Power."
A rtic le 65:
"Sentences pronounced ag ain st p riso n ers o f war s h a ll be communicated
immediately to the p ro te c tin g Power."
A rtic le 66:
" If sentence o f death i s passed on a p riso n er o f war, a communication
s e ttin g fo rth in d e ta il the nature and the circumstances o f the offence
"be addressed as soon as p o ssib le to the re p re se n ta tiv e o f the
p ro tectin g Power fo r transm ission to th e Power in whose armed forces the
priso n er served.
The sentence s h a ll not be c arrie d out before the e x p ira tio n of a
period of a t le a s t th re e months from the date o f th e re c e ip t o f th is
communication by the p ro te c tin g Power."
A rtic le 67:
"No p riso n er of war may be deprived o f the b e n e fit o f the provisions
of A rtic le h2 of th e present Convention as the re s u lt o f a Judgment or
otherw ise."*

* A rticle h2 lays down the rig h t of priso n ers of war to make p e titio n s to
the captor a u th o ritie s and to b rin g the n o tice o f the p ro te c tin g Power
to such p e titio n s .
/Any t r i a l
 E/O.tyW.19
Page 176

Any t r i a l in which the a lle g a tio n is made th a t p riso n ers were shot
w ithout cause i s , of course, an illu s tr a tio n of the v io la tio n of the right
to a f a i r t r i a l . In some cases, however, the rig h t to a f a i r t r i a l has
been discussed in fu rth e r d e ta il. Reference is made to the following trials:
the t r i a l of Karl-Hans Hermann Klinge, before the Supreme Court of Norway
on 27 February 1946; the t r i a l of Karl Adam Oolkol and th ir te e n others before
a B ritis h M ilitary Court a t Wuppertal from 15 to 21 May 1946; the t r i a l of
H einrich Klein and fourteen others before a B ritis h M ilita ry Court at
Wuppertal from 22 to 25 May 1946; the t r i a l of General V ictor Alexander
F rie d ric h W illy Seeger (see page 1^3 j the t r i a l of General Tomoyuki Yamashita
(see page 150); the t r i a l of J its u o Dato and seven others before an American
M ilita ry Commission a t Shanghai, from 1 to 22 Ju ly 1946; the t r i a l of
Tanaka Hisakasu and fiv e o th e rs, before an American M ilita ry Commission
a t Shanghai from 16 - 31 August 1946; the t r i a l of Shi*eru Sawada and three
o th e rs, before an American M ilita ry Commission a t Shanghai from 27 February -
15 A pril 1946 and also the t r i a l of Oswald Pohl and seventeen o th ers,
(Subsequent Proceedings Case No. 4 ).
The above t r i a l s show, in te r a l i a , th a t a l l types of p riso n e rs, even
captured g u e rrilla s are e n title d to some form of t r i a l before being subjected
to execution or severe punishment.
(v ii) Religious Rights
The r e l i g i o u s rig h ts o f a p r i s o n e r o r w a r a r e p r o t e c t e d b y H ague

C o n v e n tio n , A r t i c l e l8 a n d G en ev a C o n v e n tio n , A r t i c l e 16. T h ese p ro v id e as

fo llo w s :

- Hague Oonvention, A rtic le 18:

" P r i s o n e r s o f w a r s h a l l e n jo y c o m p le te l i b e r t y in th e e x e rc is e of

th e ir re lig io n , in c lu d in g a tte n d a n c e a t th e s e r v i c e s o f t h e i r own

c h u rc h , on th e s o le c o n d i t i o n t h a t t h e y c o m p ly w i t h t h e p o l i c e

re g u la tio n s is s u e d b y th e m i li ta r y a u t h o r i t i e s ."

G en ev a C o n v e n tio n . A r t i c l e l6 :

"Prisoners o f war s h a ll bo perm itted complete freedom in the

performance of th e ir re lig io u s d u tie s , including attendance a t the
services o f th e ir f a ith , on the sole condition th a t they comply with
the routine and p o lice reg u latio n s prescribed by the m ilita ry authorities
M in is te rs o f r e l i g i o n , w ho a r e p r i s o n e r s o f w a r , w h a t e v e r m ay b e

t h e i r d e n o m in a tio n , s h a l l b e a llo w e d f r e e l y t o m i n i s t e r t o th e ir

c o - r e l i g i o n i s t s ."

A rtic le 18 of the Hague Convention appears among those whose violations

is alleged in the Subsequent Proceedings t r i a l s ag ain st Carl Krauch and
twenty-two o th e rs, and A lfried Krupp von Bohlen und Haibach and eleven others,
(Nos. 6 and IO).
/in the tr i a l
 E/CN.VW.19
Page 177

In the t r i a l of Oswald Pohl and seventeen o th e rs, (Subsequent

Proceedings, Case No. 1+), i t is alleg ed , in te r a lia , th a t Geneva Convention,
Article 16 was v io la te d by various of the accused.
(v l i l ) Property Bights
A rtic le ^ of the Hague Convention provides th a t a l l the personal
property of prisoners of war, "except arms, horses and m ilita ry papers,
remain th e ir p ro p erty ". A rtic le 6 of the Geneva Convention provides as
follows :
"All personal e ffe c ts and a r tic le s in personal use - except arms,
horses, m ilita ry equipment and m ilita ry papers - s h a ll remain in the
possession of prisoners of war, as well as th e ir metal helmets and
gas masks.
Sums of money c a rrie d by p riso n ers may only be taken from them
on the order of an o ffic e r and a f te r the amount has been recorded. A
re c e ip t s h a ll be given fo r them. Sums thus impounded s h a ll be placed
to the account o f each priso n er.
Their id e n tity tokens, badges of rank, decorations and a r tic le s
of value may not be taken from the p riso n e rs."
Examples of the p ro te c tio n of these ric h te are afforded by th e t r i a l s
of Guilo Oldani and o f Oswald Pohl and seventeen o th e rs, (Subsequent
Proceedings, No. k). (See page 151).
(lx ) Civic Rights
A rtic le 3 of the Geneva Prisoners of War Convention lays down:
"...p riso n ers r e ta in th e i r f u l l c iv il cap acity ." I t has been im possible,
however, so f a r , to fin d a t r i a l which would throw lig h t on the sig n ifican ce
of th is p rovision.
(x) The Right not to be put to Slavery
A rtic le 27 of the Geneva Convention provides:
"B elligerents nay employ as workmen p risoners o f war who are
physically f i t , other than o ffic e rs and persons of equivalent sta tu s
according to th e ir rank and a b ility .
N evertheless, i f o ffic e rs or persons of equivalent sta tu s ask
fo r su ita b le vork, th is sh a ll be found fo r them as f a r as p o ssib le .
Non-commissioned o ffic e rs who are priso n ers of war may be
compelled to undertake only supervisory work, unless they expressly
request remunerative occupation."
N evertheless, th ere are lim its to the extent to which the labour of
prisoners of war may be used by the capturing power. T ria ls which are
relevant in- connection w ith the rig h t of priso n ers of war and others not to
be put to slavery include the t r i a l s of Erhard Milch, Josef A ls to tte r and
fifteen o th e rs, and of Oswald Pohl and seventeen o th e rs, (Subsequent
Proceedings Cases Nos. 2, 3 and 4).
7- The Sick and Wounded
Special provision i s made fo r the p ro te c tio n of th e sick and wounded
by the Geneva Convention of 1929 fo r th e Amelioration of th e Condition of the
Wounded and Sick in Annies in the F ie ld . Of th is Convention, the following
a r tic le s have been quoted in war crime t r i a l s :
A rtic le 1:
"O fficers and so ld ie rs and other persons o f f ic ia lly attached to
the armed forces who are wounded or sick s h a ll be respected and
protected in a l l circumstances; they s h a ll be tre a te d with humanity and
cared fo r m edically without d is tin c tio n of n a tio n a lity , by the
b e llig e re n t in whose power they may be.
N evertheless, the b e llig e re n t who i s compelled tc abandon wounded
or sick to the enemy, s h a ll, as f a r as m ilita ry exigencies perm it,
leave w ith them a po rtio n o f h is medical personnel and m aterial to help
with th e ir treatm ent."
A rtic le 19:
"As a compliment to Sw itzerland, the heraldic emblem of the red
cross on a white ground, formed by reversing the Federal colours, is
re ta in ed as the emblem and d is tin c tiv e sign of th e medical service of
armed fo rce s.
N evertheless, in the case o countries which already u se, in place
of the Bed Cross, the Bed Crescent o r the Bed Lion and Sun on a white
ground as a d is tin c tiv e sig n , these emblems are a lso recognized by the
terms o f the present Convention."
A rtic le 20:
"The emblem s h a ll fig u re on th e fla g s , arm lets, and on a l l material
belonging to the medical serv ice , w ith the perm ission o f th e competent
m ilita ry a u th o rity ."
A rtic le 22:
"The d is tin c tiv e fla g of the Convention s h a ll be h o isted only over
such medical formations and establishm ents as are e n title d to be
respected under the Convention, and with the consent of the m ilitary
a u th o ritie s . In fix ed establishm ents i t s h a ll be, and in mobile
formations i t may be, accompanied by the n atio n al fla g of the belligerent
to whom the formation or. establishm ent belongs.
N evertheless, medical formations which have fa lle n in to the hands
o f the enemy, so long as they are in th a t s itu a tio n , s h a ll not fly any
other fla g them th a t o f th e Convention.
B ellig eren ts s h a ll take th e necessary ste p s, so f a r as m ilitary
exigencies perm it, to make c le a rly v is ib le to the enemy fo rce s, whether
/la n d , a ir or sea
 E/dA/W .19
Page 179

lan d , a i r , or sea, the d is tin c tiv e emblems in d ic a tin g medical

formations and establishm ents, in order to avoid th e p o s s ib ility of
any offensive actio n ."
In A rtic le 2 of the Convention i t is sta te d th a t:
"Except as regards th e treatm ent to be provided fo r them In v irtu e
of the preceding a r t i c l e , the wounded and sick o f an army who f a l l in to
the hands o f the enemy s h a ll be p riso n ers of war, and the general
provisions of In te rn a tio n a l law concerning p riso n ers of* war s h a ll be
applicable to them.
B ellig eren ts s h a ll, however, be fre e to p re sc rib e , fo r the
b e n e fit of wounded or sick p riso n e rs, such arrangements as they may
thiis f i t beyond the lim its of the e x istin g o b lig a tio n s."
Examples of the p ro te c tio n of the rig h ts of the s tic k and wounded
are provided by the t r i a l of Kurt Meyer before a Canadian M ilitary Court
at Aurich from 10 to 28 December 1945; the t r i a l of Captain Wademi Shirozu
and th ir ty - f iv e ethers before an A ustralian M ilitary Court from 2 to 18 January
1946 a t Ambon and from 25 January to 15 February 1946 a t Morotai; the t r i a l
of Lieutenant Taisuke Kavazvani and eig h t others before an A ustralian M ilitary
Court a t Morotai from 5 to l4 February 1946; the t r i a l of Hiroshi F u n ii,
before an American M ilitary Commission a t Yokohama from 28 September to
31 December 1946; and the t r i a l of Kurt Student before a B ritis h M ilitary
Court a t Luneberg from 6 to 10 May 1946.
8. Medical Personnel
Provision is made fo r the safeguarding of the personal sec u rity o f
medical personnel by A rtic le s 6 and 9 o f the Geneva Convention fo r the
Amelioration of the Condition o f th e Wounded and Sick in Annies in th e
Field, which provide as follows:
A rticle 6:
"Mobile medical form ations, th a t Is to say, those which are
Intended to accompany armies in th e f ie ld , and the fix ed establishm ents
of the medical service sh a ll be respected and p ro tected by the
b e llig e re n ts ."
A rtic le 9:
"The personnel engaged exclusively in the c o lle c tio n , tran sp o rt
and treatm ent of the wounded and sic k , and in the adm inistration of
medical formations and establishm ents, and chaplains attached to armies,
sh a ll be respected and protected under a l l circum stances. I f they f a l l
Into the hands of the enemy they s h a ll not be tre a te d as prisoners of war.
Soldiers sp e c ia lly tra in e d to be employed, in case of n e ce ssity ,
as a u x ilia ry nurses or stre tc h e r-b e a re rs fo r the c o lle c tio n , tran sp o rt
and treatm ent of the wounded and sic k , and furnished with a proof of
/ id e n tity
E/CI.Vw.19
Page l8 0

Id e n tity , s h a ll enjoy th e same treatm ent, as the permanent medical

personnel i f they are taken p riso n ers while carrying out these functions."
I t w ill he noted th a t medical personnel are not to he tre a te d as
prisoners of war on capture.
Reference ism ad e in th is connection also to the t r i a l of Kurt Student,
mentioned on page 163.
9. Captured. Spies
A rtic le s 29 and 30 of the Hague Convention makes the following
provisions re la tin g to captured sp ies:
Article 29:
"A person can only he considered a spy when, acting clandestinely
or on fa ls e pretences, he obtains or endeavours to o b tain information
in the zone of operations of a b e llig e re n t, w ith the in te n tio n of
communicating i t to th e h o s tile p a rty .
Accordingly so ld ie rs not wearing a disguise who have penetrated
in to the zone of operations of th e h o s tile army fo r the purpose of
obtaining inform ation are not considered sp ie s . S im ilarly , the
follow ing are not considered sp ies: Soldiers and c iv ilia n s entrusted
w ith the deliv ery o f dispatches intended e ith e r fo r th e ir own army or
fo r the enemy's army, and carrying out th e ir m ission openly. To th is
c lass likew ise belong persons sen t in balloons f o r th e purpose of
carrying dispatches and, g en erally , o f m aintaining communications
between th e d iffe re n t p a rts o f an army o r a t e r r it o r y .
A rtic le 30:
A spy taken in the a c t s h a ll not be punished w ithout previous tria l.
T ria ls which are re le v an t in th is connection are th e "Almelo Trial"
(see page 171): th e t r i a l o f Werner Rohde and e ig h t o thers before a B ritish
1-iilitary Tribunal a t Wuppertal from 29 May - 1 June 1 9 ^ ; th e t r i a l of
Karl Maria von Behren before a B ritis h M ilitary Court, a t Hamburg, from
28 to 31 May 19^+6; and the t r i a l o f Lieutenant General Takeo Ito and eight
others before an A ustralian M ilitery Court a t Rabaul on 2k May 19k6.
10. A Note on the N atio n ality of th e Accused
According to the c la ssic conception of the nature o f a war crime,
such an offence can only be committed by an enemy.* An e la s tic interpretation
has been given to the meaning of the word "enemy", however, and in th is way
v io la tio n s of human rig h ts have been punished in instances where such action
would not otherwise have been p o ssib le.

* i . e . an enemy or ex-enemy from th e p o in t of view of the Country setting

up the Court.
/Thus, six of the
 E/CN.U/W.19
Page l8 l

Thus, six of the accused in the Belsen T rial* who were found g u ilty
were Poles, th a t i s to say, n atio n als of a country a llie d to the
United Kingdom, before one o f whose M ilitary Courts th e t r i a l was held.
Their Counsel had claimed th a t the offences which they were alleged to have
committed against Poles and other n atio n als could not amount to war crimes.
By finding them g u ilt} , however, the Court approved the argument of the
Prosecution th a t i f the Polish accused, whether to save themselves from '.eing
beaten or from whatever motive, accepted p o sitio n s of re s p o n sib ility in the
camp under the S. S. and beat and i l l - t r e a t e d p riso n e rs, acting on b eh alf of
the S. S ., they had id e n tifie d tbemaelves w ith the Germans, and were as g u ilty
as the S. S. themselves.
S im ilarly, a n a tio n al of Luxembourg, an a llie d country, was'found
guilty of war crimes by a French M ilitary Tribunal a t Lyon on 23 November 19^5
The accused, a Lucien Fromee, joined the ranks of the Gestapo as a
Hauptsturmfuhrer and was tr ie d fo r murder, p illa g e and wanton d estru ctio n of
property committed on French te r r it o r y . Found g u ilty on a l l counts, he was
consemned to death.
Again, the M ilitary Tribunal in P aris on 25 A pril 19^7 a t le a s t assumed
Ju risd ictio n over Lendines Monte, a n a tio n al of a n o n -b ellig eren t country,
Spain. He was tr i e d on two d iffe re n t counts: fo r "v io latio n s ag ain st the
external se c u rity o f the S ta te " , and fo r "murder and ill-tre a tm e n t" . In both
cases the place o f th e alleged crimes was in Germany, where the defendant
was intern ed in concentration camps from 19^*0-19^5 a f te r having been found
in France as a Spanish Bepublican refugee. Cn the f i r s t count he was
charged w ith having "maintained re la tio n s during the war with subjects and
agents of an enemy country", actin g ag ain st th e s e c u rity o f the French s ta te ,
and on the second count w ith having p h y sically i l l - t r e a t e d French, Belgian and
Spanish inmates in the camps and w ith having k ille d a Spaniard. The defendant
was acquiteed on the f i r s t count and on th e second the Court ordered ad d itio n al
investigations. The essence of th e second charge was th a t, as an inmate in
German concentration camps, he a llie d him self w ith the German a u th o ritie s and
ill- tre a te d other inmates in the same way as the a u th o ritie s themselves.

* See page 1U6.

/P . SFHEKES
E/CN.U/W.19
Page 182

D. SPHERES IN WHICH THE EIGHTS OF THE

ACCUSED AND THE RIGHTS OF THE VICTIMS
MAY BE SAID TO HAVE CONFLICTED AT THE
TIME OF TEE OFFENCE

I t often happens th a t the fa c ts of a case before a war crime court

are not such as to enable the court to declare an accused unqualifiedly
g u ilty . In such instances i t f a l l s to the court to s trik e a balance between
c o n flic tin g claims to i t s consideration, in fa c t between the rig h ts of the
victim on the one hand and what may be regarded as the rig h ts of the accused
on the o th e r. The decision of the Court in such cases is not always an
easy one to make, even i f th e ir proceedings are reg u lated (as they sometimes
are) by le g a l enactments which make provision governing such situ a tio n s.
Eow, fo r instance, is a court to a c t when faced with the p lea th a t the
offence was committed under superior o rd ers, duress or coercion or under
pressure of some form of n e c e ssity , or in accordance with the municipal
law which governed the a c ts of the accused a t the time of the offence?
How f a r can a commander bo held lia b le fo r offences committes by troops
under h is command which he did not order them to commit? How nearly
connected with an offence must an accused be shown to have been before he
can be made lia b le as an accomplice in i t s p erp etratio n ? How f a r can i t be
regarded'as le g itim ate to take re p ris a ls which v io la te human rig h ts? What
recognition i s i t possib le to allow to the p leas of mistake of f a c t,
mistake of law and s e lf defence?
These are the questions on which the enactments, le g a l arguments and
ju d ic ia l decisions quoted in th is section are intended to throw son l i t t l e
lig h t.
1. R esp o n sib ility of Commanders fo r Offences Committes by th e ir Troops
( i ) L ia b ility of O fficers fo r Offences Ordered by Them
There have been -any tried.3 in which an o ffic e r who ordered the
commission of an offence has been held g u ilty of i t s p e rp e tra tio n .
One example among many is the t r i a l of General Anton D ostler, by a
United S ta te s M ilitary Commission, Rone, 8 - 1 2 October 19^5, in which the
accused was found g u ilty of having ordered the i lle g a l shooting of fifteen
p riso n ers of war.*
While the p rin c ip le of the re s p o n s ib ility of such o ffic e rs is not in
doubt, i t i s nevertheless in te re s tin g to note th a t i t has even been
s p e c ific a lly la id down in c e rta in te x ts which have been used as authorities

* See War Crime T ria l Law R eports, published fo r the United Nations War
Crimes Commission by His M ajesty's S tatio n ery O ffice, London, Vol. I,
pages 22-3^.
 E/CN.U/W.19
Page 183

in war crime t r i a l s . For instance, paragraph 3^5 of the United S tates

Basic F ie ld Manual, F.M. 27-10, in dealing v ith th e a d m issib ility of the
defence of Superior Orders, ends w ith the words: " ....T h e person giving
such orders may also be punished."
Reference has already been made to the provisions of the Nrnberg
and Tokyo C harters which formulate the general p rin c ip le th a t 'le a d e rs,
organizers, in s tig a to rs and accomplices, p a rtic ip a tin g in the form ulation
or execution of a common plan or conspiracy to commit any of the foregoing
crimes are responsible fo r a l l a c ts performed by any persons in execution
of such p la n .'*
(ii) L ia b ility of a Commander fo r Offences Not Shown to have been Ordered by
Him
A more In te re s tin g question, however, is the ex ten t to which a commander
of troops can be held lia b le fo r offences committed by troops under h is
command which he has not been shown to have ordered, on the grounds th a t he
ought to have used h is a u th o rity to prevent th e ir being committed or th e ir
continued p e rp e tra tio n , or th a t he must, taking in to account a l l the
circumstances, be presumed to have e ith e r ordered or condoned the offences.
The extent to which such l i a b i l i t y can be adm itted is not easy to la y down.
( ii i) Relevant Legal Provisions
Some relev an t le g a l provisions e x is t. Thus, A rtic le h of the French
Ordinance of 28 August 1 9 ^ , provides th a t:
"Where a subordinate is prosecuted as the a c tu a l p e rp e tra to r
of a var crime, and h is superiors cannot be in d icted as being equally
responsible, they s h a ll be considered as accomplices in so fa r as they
have organised or to le ra te d the crim inal a c ts of th e ir subordinates."
In a sim ilar manner, A rtic le 3 f Law of 2 August 19^7, of the
Grand Duchy of Luxemberg, on the Suppression of War Crimes, reads as
follows:
"Without prejudice to the provisions of A rtic le s 66 and 67 of
the Code P enal, the following may be charged, according to the
circum stances, as co-authors or as accomplices in the crimes and
d e lic ts s e t out in A rtic le 1 of the p resen t Law: superiors in rank
who have to le ra te d the crim inal a c ti v itie s o f th e ir subordinates, and
those who, without being the superiors in rank of the p rin c ip a l
authors, have aided these crimes or d e lic ts ."

* See Chapters I (B) and I I (B)

/A rtic le IX
E /C H A /W .19
Page 184

A rtic le IX of ue Chinese Law of 24 October 1946, Governing the Trial

of War Criminals s ta te s th a t:
"Persons who occupy a supervisory or commanding p o sitio n in
re la tio n to war crim inals and in th e ir capacity as such have not
f u l f i l l e d th e ir duty to prevent crimes from being committed by th eir
subordinates s h a ll be tre a te d as the accomplices of such was criminals"
A sp ecial provision was also made in the Netherlands re la tin g to the
re s p o n s ib ility of a superior fo r war crimes committed by h is subordinates.
The Law of July 1947 adds, in te r a lia , the following provision to the
E xtraordinary Penal Law Decree of 22 December 1943: %
"A rtic le 2 7 ,a (3 ): Any superior who d e lib e ra te ly perm its a
subordinate to be g u ilty of such a crime s h a ll be punished w ith a
sim ilar punishment as la id down in paragraphs 1 and 2."
The following in te re s tin g provisions sure made in the Canadian War
Crimes Act of 3I August 1946:
"A rtic le 10 (3 ):
Where there is evidence th a t a war crime has been the re s u lt of
concerted action upon the p a rt of a form ation, u n it, body or group of
persons, evidence given upon any charge r e la tin g to th a t crime against
any member of such a form ation, u n it, body, or group may be received
as prima fa c ie evidence of the re s p o n s ib ility of each member of that
form ation, u n it, body or group fo r th a t crime
A rtic le 10 (4 ):
Where th ere is evidence th a t more than one war crime has been
committed by members of a form ation, u n it, body or grovtp while under
the command of a sin g le commander, the court may receive th a t evidence
as p rima fa c ie evidence of the re s p o n s ib ility of the commander fo r
those crimes.
A rtic le 10 (5 ):
Where th ere i s evidence th a t a war crime has been committed by
members of a form ation, u n it, body or group and th a t an o ffic e r or
non-commissioned o ffic e r was present a t or immediately before the
time when such offence was committed, the court may receive th a t
evidence as prima fa c ie evidence of th e re s p o n s ib ility of such
o ffic e r or non-commissioned o ff ic e r, and of the commander of such
form ation, u n it, body or group, fo r th a t ciJme."*
Regulation 8 ( ii) of the B ritis h Royal Warrant makes a provision
sim ilar to A rtic le 10(3) of the Canadian provisions:

* I t a l i c s in se rte d .
/"Where th ere
 E/UN.VW-19
Page I 85

".liiere th ere is evidence th a t a var crime has teen the re s u lt of

concerted action upon the p art of a u n it or group of men, then evidence
given upon any charge re la tin g to th a t crime against any member of
such u n it or group may be received as prima fa c ie evidence of the
re s p o n sib ility of each member of th a t u n it or group fo r th a t crime".
(iv) T ria l of Kurt Merer
A Canadian t r i a l of great importance in th is connection is th e t r i a l
of Brigadefuhrer Kurt Meyer by a Canadian M ilitary Court a t Aurich, Germany,
on 10 - 28 December 19^5.
Kurt Meyer vas accused of having, as Commander of the 25th S.S. Panzer
Grenadier Regiment of the 12th S.S. Panzer D ivision, in c ite d and counselled
his men to deny quarter to a llie d tro o p s;* ordered** (or a lte rn a tiv e ly been
responsible for***) the shooting of prisoners of var a t h is headquarters;
and been responsible fo r other such shootings both a t h is headquarters****
end during the fig h tin g nearby.***** He pleaded not g u ilty . In connection
vith the l a s t s e t of charges, (Charges 2 and 5) and v ith th e a lte rn a tiv e
charge (Charge 1*), the Prosecution re fe rre d to the presumptions contairied in
Regulations 10 (3), [h) and (5) of the War Crimes Regulations (Canada).******
The accused vas found g u ilty of the incitem ent and counselling, and vas
held responsible fo r th e shootings a t h is headquarters, though not g u ilty
of ordering thorn, and vas found not to be responsible fo r th e shootings
outside h is headquarters. The sentence c f death passed against him vas
commuted by the Convening A uthority to one of l i f e imprisonment, on the
grounds th a t Meyer's degree of re s p o n s ib ility did not warrant th e extreme
penalty.
In h is summing up th e Judge Advocate said th a t, i f an o ffic e r, though
not a p a rtic ip a n t in or present a t th e commission of a war crime, in c ite d ,
counselled, in s tig a te d or procured th e commission of a v ar crime, and
a f o r tio r i, i f he ordered i t s commission, he night be punished as a war
criminal. The f i r s t aw. th ir d charges f e l l w ithin th is category of offences.
In the second, fo u rth and f i f t h charges, however, Meyer was alleged to have
been "responsible fo r" the crimes se t out th e re in . In th is connection, the
Judge Advocate pointed out th a t Regulations 10 (3) , (4) and (5) of the
War Crimes R egulations (Canada) sta te d th a t when c e rta in evidence wa6 adduced,

* This co n stitu ted Charge 1 against th e accused.

** Charge 3
*** Charge k
**** Charge 5
***** Charge 2
WWW
JLltU M u u
L ater re-enacted in the Act of 3I August 19h6, re fe rre d to on page 2.
/th a t evidence
 E/CN.U/W.19
Pago lB6

th a t evidenco might' bo received by the Court as -prima f acie evidence of

re s p o n s ib ility . By v irtu e of these Regulations, i t was unnecessary, as far
as the second, fo urth and f i f t h charges were concerned, fo r the Prosecution
to e sta b lis h by evidence th a t the accused ordered the commission of a war
crime, or v erbally or t a c i t l y acquiesced in i t s commission, or knowingly
f a ile d to prevent i t s commission. The fa c ts proved by the Prosecution must,
however, be such as to e sta b lis h th e re s p o n s ib ility of the accused fo r the
crime in question or to J u s tify th e Court in in fe rrin g such re sp o n sib ility .
The secondary onus, th e burden of adducing evidence to show th a t he was hot
in fa c t responsible fo r any p a rtic u la r war crime then Bhifted to th e accused.
A ll th e fa c ts and circumstances must then be considered to determine whether
th e accused was in fa c t responsible fo r the k illin g of prisoners referred
to in the various charges. The rank of the accused, th e d u ties and
re s p o n s ib ilitie s cif th e accused by v irtu e of the command ho held, the
tra in in g of the men under h is command, th e ir age and experience, anything
r e la tin g to the question whether th e accused e ith e r ordered, encouraged or
v erb ally or t a c i t l y acquiesced in th e k illin g of p riso n ers, or w ilfu lly
f a ile d in h is duty as a m ilita ry commander to prevent, or to take such
a c tio n as the circumstances required to endeavour t o prevent, th e k illin g
of p riso n ers, were m attors a ffe c tin g th e question of th e accused's
re s p o n s ib ility .
(Dealing w ith the th ir d charge, the Judge Advocate said : "There is no
evidence th a t anyone heard any pai-ticular words u tte re d by the accused which
would c o n stitu te an order, but i t is not e s s e n tia l th a t such evidence be
adduced. The giving of th e order may be proved c ircu m stan tially ; th a t is
to say, you may consider the fa c ts you fin d to be proved bearing upon the
question whether the alleged order was given, and i f you fin d th a t the only
reasonable inference is th a t an order th a t th e prisoners be k ille d vas
given by the accused a t the tin e end place alleg ed , and th a t th e prisoners
were k ille d as a r e s u lt of th a t order, you may properly fin d the accused
g u ilty of the th ir d charge". He drew a tte n tio n however, to paragraph h2
of Chapter VI of the Manual of M ilita ry Law regarding circu m stan tial
evidence, which s ta te s : " ....b e f o r e the Court fin d s an accused person
g u ilty on circu m stan tial evidence, i t must be s a tis f ie d not only th a t the
circumstances are c o n sisten t with the accused having committed the act
(th a t i s , said the Judge Advocate, th a t he gave the order) but th a t they
are in co n siste n t w ith any other ra tio n a l conclusion than th a t the accused
was the g u ilty person".
In ad d itio n t o the view of th e Judge Advocate in th e case of these
provisions, i t would not be out of place to s e t out the remarks of Counsel
/on th ese interesting
 e / cn.U/w. i 9
Page 1T

on these in te re s tin g paragraphs. In h is opalling address, prosecuting

Counsel said th a t the vicarious re s p o n s ib ility of a high-ranking o ffic e r
for a tr o c itie s committed by troops under h is command, in the absence of a
direct order vas based " f i r s t l y , on a known course of conduct and expressed
attitu d e of mind on th e p a rt of th e accused; secondly, upon h is f a ilu r e to
exercise th a t measure cf d isc ip lin a ry co n tro l over h is o ffic e rs and men
which i t i s th e duty of o ffic e rs commanding troops to ex ercise; and,
th ird ly , on a ru le of evidence applicable in these cases, which in e ffe c t
says th a t, upon proof of c e rta in f a c ts , th e accused may be convicted, i f
he does not o ffer an explanation to th e court s u ffic ie n t to ra is e in th e ir
minds a reasonable doubt of h is g u ilt" .
Paragraphs (4) and (5) were important to the present case because
evidence would be submitted to show th a t th e accused was prima fa c ie g u ilty ,
for war crimes under both provisions, quite ap art from p o sitiv e evidence
of g u ilt. The Prosecution would produce evidence to show, in charges 1,
3 and k, th a t an o ffic e r or H.C.O. or both were present a t the time when
these offences were committed, and th a t th is was probably also th e case
with respect to charges 2 and 5 Furthermore, th e offences proved would
be such as to c o n stitu te "more than one war crime" w ithin the meaning of
paragraph (4). D iscussing fu rth e r the presumptions la id down in paragraphs
(3), (k) and (5), Counsel expressed th e opinion th a t: "Technically i t
could be said th a t an Army Commander might be held responsible fo r th e
unlawful acts of a p riv ate so ld ie r hundreds of m iles away, simply because
an N.C.O. happens to be present a t th e time th e offence was committed . . .
It is only pedantic nonsense, to suggest th a t any such meaning i s intended.
A reasonable lin e must be drawn in each case, depending on i t s circum stances.
The e ffe c t of the provision i s simply th a t, upon proof of the fa c ts th e re
set out, th e burden s h if ts to th e accused to make an explanation or answer,
and the court may convict b u t i s not obliged to do so, in the absence of
such explanation or ans e r . The sectio n does not say th a t the court must
receive such evidence as prima fe e le evidence of re s p o n s ib ility , but merely
that i t may".
Counsel fo r the Defence did not touch upon th e provisions in question.
From th e f a c t th a t Meyer was found g u ilty on th e fo u rth and f i f t h
charges but not on th e th ir d , i t seems c le a r th a t th e Court made an express
application of th e presumptions contained in Regulation 10, and considered
that i t was ju s tif ia b le thereupon to pass th e death sentence on the accused.
The Convening A uthority, however, was of the opinion th a t "Meyer's
I
degree of re s p o n s ib ility was not such as to warrent the extreme penalty".

/(v ) The T ria l

 E/CN.U/W.19
Page l88

(v) The T ria l of Josef Kramer and Others. (The Belsen T ria l)
At one point in the Belsen T ria l, evidence wa6 admitted by a witness
as to acts of a person not id e n tifie d by him. This incident illu s tr a te s
the a p p licatio n of Regulation G ( i i ) of the Royal Warrant (see page 236) and
the possible operations against Kramer, the Kommandant of Belsen, of the
p rin c ip le of vicarious l i a b i l i t y .
During the in te rro g a tio n of the w itness, Abraham Glinowieski, the
Prosecutor put to him a question concerning a person named Erich whom the
w itness had mentioned in fcis a ffid a v it but whom he had not id e n tifie d among
the accused. Captain Corbally (Counsel fo r Erich Zoddel) submitted th a t
the Court ought not to hear th is evidence. This w itness had fa ile d to
id e n tify E rich; th erefo re th is evidence was w orthless, and not only against
Erich him self. As i t was a jo in t t r i a l , Counsel considered him self
e n title d to objeot to i t on behalf of th e other prisoners, whom he represented,
and he thought th a t the other Defending O fficers too would be e n title d to
object to i t on those grounds. I f the w itness could not id e n tity th e man
to whom he re fe rre d , the evidence was c le a rly w orthless and i t could only
prejudice the whole mass of th e prisoners before the Court.
The Prosecutor maintained th a t he was e n title d to ask th e question.
He had a rig h t to c a ll evidence of c ru e lty and ill-tre a tm e n t which went on
a t both camps, whether by th e accused or n o t, so long as Kramer was the
commandant of th e comp and responsible fo r th e ir behaviour. The accused
were some of a group of people who s e t out to i l l - t r e a t and k i l l persons
under th e ir charge and evidence against other members of th e group became
evidence against them. That was the P ro secu tio n 's case, and on th a t ground
alone, th e Prosecutor would submit th a t, even i f i t were q u ite impossible
to say who E rich was, or even i f he did not know h is name, th e fa c t th a t
he was one of the guards under Kramer and was perm itted to behave in a wey
which the w itness nifht say he behaved, made evidence of h is acts admissible.
Addressing Captain C orbally, the Judge Advocate said: "I would be
prepared to advise the Court th a t i f th is w itness does not id e n tify the
accused whom you re p re se n t, then I s h a ll t e l l th e Court in my summing up
exactly what you are saying now, but I am bound to t e l l th e Court th a t in
my view i t is allowed to hear th is evidence on the grounds th a t the
Prosecutor has put forward. So f a r as you are concerned, unless he is
id e n tifie d I agree, you are e n title d to say th e re is no evidence against
the man you re p re se n t."
Unless th e accused was id e n tifie d , th e Judge Advocate agreed th a t
Captain Corbally was e n title d to say th a t th e re was no evidence against the
man whom he represented. The Prosecutor said th a t he had made, up to then,
no attem pt t o connect offences w ith any p a rtic u la r person because the
/w itness
 E/CN.U/W.19
Page I 89

vitness hod not recognized anybody.

The Judge Advocate pointed out th a t th e Prosecutor vas offerin g a
picture of the camp and a t any ra te the evidence would be relevant as
regards Kramer, th e Kommandant.
The Court decided to over-rule the objection made by the Defence and
invited the Prosecutor co continue w ith h is examination.
How f a r the Court re lie d upon Rgulation 8 ( i i ) in finding Kramer
guilty and sentencing him to death cannot be ascertain ed , however, since
the record of the t r i a l shows th a t he could have been found g u ilty of
offences personally committed by him.
(vi) T ria l of Karl Bauer and Others
On 18 February 19^6, a B ritis h M ilita ry Court a t Wuppertal, Germany,
tried several o ffic e rs and men form ally attached to the aerodrome a t
Dreierwalde, Germany, fo r being "concerned in" th e k illin g , contrary to
the laws and usages of v a r, of A llied prisoners of war on one or more of
three occasions on 22, 2^ and 25 March 19J'-5> re sp e c tiv e ly . Of p a rtic u la r
in terest in the present connection is the outcerne of the t r i a l of Karl Rauer,
formerly a Major and Kommandant of the camp, and Wilhelm Scharschmidt,
formerly Hauptmann and R auer's A djutant.*
I t was shown th a t on 21 March th e aerodrome was heavily bcoibed and
five A llied airmen were captured by th e Germans. Rauer, th e Kommandant of
the camp, claimed th a t he issued no sp ec ific orders regarding these
prisoners, but expected th a t they would be sent to a prisoner of war camp
in the usual way. Schar6chmidt, h is A djutant, a f te r questioning them,
detailed Oberfeldwebel Karl Amberger to lead tlic ir e sc o rt, despite the
warnings of Chief Clerk Lauter th a t Amberger was unsuitable fo r th e ta sk
in view of h is open h o s t i l i t y to A llie d n r isonors of war; the Adjutant did
make some attem pt to fin d a s u b s titu te . On th e night of th e 22nd, four of
the party of prisoners were shot dead on th e way to the s ta tio n .
Rauer admitted th a t he was primai'i ly responsible fo r prisoners of war,
but added th a t the adm inistration of questions r e la tin g to them was a m atter
for Scharschnidt, th e A djutant. Both he and Scharschmidt accepted a rep o rt
that the prisoners had been shot while try in g to escape and Rauer passed th is
report on to higher au th o rity . Bauer pleaded th a t he had no time to make
a personal in v e stig a tio n , and Scherrchmidt pleaded th a t he had no orders to
do so,

* The other accused vere as follow s: Otto Bopf, Bruno Bttcher,

Herman Lemmies, Ludvig Lang and Emil Gunther. The f i r s t two of these
were o ffic e rs .

/On 2k March
E/CNA/w.19
Pago I 90

On 2k March, a fa rth e r p arty of p riso n ers, captured a f te r a second

serious a ir r a id , were sent a t night to help in f i l l i n g in bombholes on
the runways of th e aerodrome. This was done under B aiter's orders, transmitter
through Scharschmidt, though.there vas cone evidence th a t the immediate
order came from Bopf. In Court, Gunther claimed th a t Lang had to ld him
th a t Bopf had ordered The shooting of th e p riso n ers. The l a t t e r was taken
out by Gunther, Lcmmes, Lone ( a l l of whom came under B opf's orders) and
one o th er, not before th e Court. Seven or eig h t prisoners were shot,
and th e re was evidence im plicating Gunther, Lommes and Lang in the shooting.
B ttcher, who was in cherge of re p a irs , claimed to have reported th e
m atter to Scharschmidt, but th e l a t t e r denied th i s . Lommes claimed th a t
Scharschmidt said to th e N.C.O.s involved: "You must make a re p o rt th a t
they were shot w h ilst try in g to escape, so th a t I cen pass i t on". Lang
to ld Bopf th a t the shooting had been committed, but Bopf took no action and
Jumped to the conclusion th a t Scharschmidt must have ordered i t . Bttcher
was also in a c tiv e , and Scharschmidt took no actio n because Bauer had
intended to in te rro g a te th e e sc o rt. The Kommandant, however, could not
fin d the time to do 60, An unchecked re p o rt s ta tin g th a t th e prisoners
had been shot while try in g to escape was thereupon sent to higher command.
Lcmmes claimed in Court th a t B ttcher said th a t th e k illin g was J u s tifie d
i n view of the Germcn deaths caused by bombing.
F in a lly , on 25 March, a wounded prisoner tras taken out of the
aerodrome in a motor cycle sid e-ca r by Lang and Lommes and shot by Lang.
Bauer and Schorschmidt sta te d in Court th a t they knew nothing of th is
incid en t u n til long a fte rv s rd s. B ttcher admitted lending h is motor cycle
to Lommes, and claimed th a t he had th e Impression th a t the v ictim was being
taken tc h o s p ita l. Lcmmes claimed th a t both B ttcher and Bopf had said
th a t the regaining prisoner must disappear lik e the o th ers; the two
o ffic e rs denied t h i s .
There was evidence +hat both Bauer and Scharschmidt expressed h o stile
opinions towards captured enemy a i r crews, in the presence of N.C.O.s.
Bauer, however, denied issu in g any orders fo r th e shooting of prisoners
of war, and explained th a t he was prevented from making personal
in v e stig atio n s in to the shootings by h is other d u tie s; the A llied armies
were near, a ir - r a id s were severe and n ece ssita te d expensive re p a irs b y ,
hundreds of prisoners of war, in tern ees and c iv ilia n s , which he had to
supervise, end h is ta sk was made worse by ill- f e e lin g among the o fficers
on the aerodrome. No w itness claimed th a t th e k illin g s were c arried out
on the sp e c ific orders of e ith e r Bauer or Scharschmidt.
Subject to confirm ation by higher m ilita ry a u th o rity , the following
findings were pronounced. ,
/Bauer
 E / cnA / w.19
Page 191

Rauer and Schorschmidt were found not g u ilty of the f i r s t charge,

vhich concerned the events of 22 March, hut g u ilty of the other two charges,
which concerned those of 2^ and 25 March. The remaining accused except
Gunther, were found g u ilty of th e second and th ir d charges, not having "been
accused of the f i r s t charge, Gunther was found g u ilty of the second charge,
ionceming th e events of 2k March, th e re being no other charge against
him.
All of the accused were sentenced to death by being hanged. The
sentence on Bauer was commuted to l i f e imprisonment by higher m ilita ry
authority, and the other sentences confirmed.
The names of two of th e accused, ex-Major Rauer and ex-Haupmonn
Wilhelm Scharechnidt, the Kommandant of the aerodrome and h is ad ju tan t,
appeared, th e re fo re , on a l l three charges, these accused being thereby
charged w ith being "concerned in the k illin g " of twelve A llied Prisoners
of War on th re e d iffe re n t dates in March 19^5 I t was agreed th a t there
vas no d ire c t proof th a t e ith e r had given any sp ec ific orders fo r the
offences to be committed. Tet both were found g u ilty on the second and
third charges, and sentenced to death by hanging. They were found not g u ilty
on the f i r s t charge, and the sentence on Bauer was commuted by higher
military a u th o rity to one of l i f e imprisonment.
Counsel fo r Rauer submitted th a t th is accused "must be proved to have
been a party to a crime or to have acted in consort w ith others in committing
that crime or to have been g u ilty of crim inal negligence of the highest
order or to have been an accessory a f te r th e k illin g s " . He could not be
convicted merely because he was the commander of people who were responsible
for k illin g s . In h is closing address, Counsel claimed th a t Bauer should
not be convicted of being concerned in a crime merely because he was the
commander of the responsible p a rtie s . He must be proved to have p a rtic ip a te d
In the crime, e ith e r by issu in g orders in connection w ith the k illin g s or
by allowing th e p e rp e tra to rs to b eliev e th a t they could k i l l airmen with
Impunity. Above a l l i t must be proved th a t th e accused Bauer had the
necessary mens re a or g u ilty mind.
In h is closing speech, Counsel fo r Scharschmidt submitted th a t
utterances by the l a t t e r h o s tile to B ritis h p ilo ts , made a f te r heavy a ir
raids, were not s u ffic ie n t to prove him g u ilty of possessing th a t g u ilty
nind which was on e s s e n tia l ingredient of th e charges. Counsel's submission
regarding the f i r s t charge was th a t th ere wa3 no evidence th a t Scharschmidt
Instigated th is crime o r, re a liz in g th a t a crime had been committed, condoned
it. I f the Court considered th a t ha was negligent in any of h is d u tie s,
Counsel submitted th a t negligence was not enough on th is charge. As to the
charges as a whole he claimed th a t th e re was no evidence th a t Scharschmidt
/in s tig a te d
E/CN.V w.19
Page I 92

in s tig a te d any k illin g or condoned any k illin g . In every case he made an

immediate rep o rt to h is Commandant, who must boar the re s p o n sib ility fo r any
neglect of duty th a t occurred. I t was never Scharschmidt1s duty to carry
out any Interrogations him self.
In closing h is case, th e Prosecutor pointed out th a t a man i s deemed
to intend the n a tu ra l consequences of h is a c ts . He contended th a t the
murder in these charges came about i f not on d ire c t orders then because
the Komraandatur in the form of Eauer and Scharsclimidt l e t th e ir h o s tile
views towards prisoners of war be known to th e i r subordinates, who thereupon
took a c tio n 'a g a in st th e p riso n ers. He considered th a t the offence of
incitem ent to murder came properly w ith in th e scope of th e words "were
concerned in the k illin g " . In Section k- of th e Offences Against the
Person Act ( I 861) such incitem ent was defined as to s o l i c i t , encourage,
persuade, endeavour to persuade, or prorose to any person to murder any
other person. The Court might w ell th in k th a t th is wording included in
i t s scope exactly a s itu a tio n where th e re ex isted a chain of command. I f
th e Court were not s a tis f ie d th a t th e evidence of th e a c tiv itie s of any
o f the o ffic e rs was enough to show th a t he was an accessory before the
f a c t, then i t was submitted th e re was evidence on which the Court might
fin d th a t the accused o ffic e rs were g u ilty of in c itin g to murder.
Scharsclimidt, continued th e Prosecutor, could have delayed sending
th e prisoners u n til a more r e lia b le e sc o rt became a v a ila b le . A fter the
k illin g s , untested re p o rts were accepted by Eauer or Scharschmidt from
th e e sc o rts, to the e ffe c t th a t the prisoners were shot while try in g to
escape, and were autom atically forwarded to higher command. Was i t not
strenge th a t the pi'isoners involved in the second in cid en t were not sent
out by Bauer to mend th e runways t i l l midnight, whereas th e work had been
begun a t 8 oclock, and th a t Eauer claimed not to know th a t h is actio n
was wrong? Bauer ought to have a n tic ip a te d fu rth e r tro u b le in /lew of
th e deaths on th e 22nd.
Summing up on a submission on b eh alf of Eauer of no case to answer,
th e Judge Advocate said : "In my view th e charge does not envisage anything
in th e nature of negligence. The words: Wien concerned In the k illin g ,
t o my mind, are a complete and d ire c t a lle g a tio n th a t Bauer was e ith e r
in s tig a tin g murder or condoning i t . In my view th a t is th e r e a l b asis
of the charge which is before you, and I do not propose to embark upon any
questions as to whether Bauer Was negligent e ith e r a t the time or afterwards
in not mailing a proper in v e stig atio n ".
The Judge Advocate in h is f in a l summing up, dealing w ith the f i r s t
charge, said th a t th ere seemed no d ire c t evidence th a t Karl Eauer or
/Scharschmidt
 E/CH.V w.19
Page 193

Scharschmidt d e lib e ra te ly gave orders to /mberger and h is companions to

shoot th e cap tiv es. N either did he see any d ire c t evidence upon which
the Court could properly a rriv e a t a fin d in g th a t, though they were not
giving d ire c t orders they were passing on to these N.C.O.s the impression
that the k illin g was what they wanted to happen, and th a t i f the l a t t e r
k ille d the prisoners nothing would be said about i t and they would not be
punished. He reminded the Court, however, th a t the Prosecution maintained
that none of th e h illin g s alleged in th e th re e charges coul^ have occurred
on the aerodrome without th e connivance, w ithout th e d ire c tio n and without
the com plicity of the Commanding O fficer and th e Adjutant of the s ta tio n ,
and th a t as a co ro llary to the re lia n c e which was placed on superior orders
in t r i a l s of German war crim inals th e Prosecution was claiming th a t no
German N.C.O.s would dare to take p riso n e rs' liv e s unless they were
s a tisfie d th a t they had been to ld th a t such actio n would be approved by the
Commanding O fficer.
The Judge Advocate f e l t th a t th e Co'irt would be prepared to say without
question th a t i t was probably a sound view to ta k e , in regard to th e
German Army, th a t th e persons who did th e k illin g s did not commit these
crimes w ithout having seme orders from th e ir su p erio rs, but th e question v is
vho did give these orders, who were th e superiors involved? Apart from
Bauer and Scliar3chmidt, B ttcher and Bopf were a lso o ffic e rs . The finding
of the Court was th a t a l l four o ffic e rs were g u ilty of being concerned in
the k illin g of the prisoners on the aerodrome and cf the wounded p riso n er.
The decision of the Court to fin d Rauer and Scharschmidt not g u ilty of the
f ir s t charge, concerning the shootings on the way to the s ta tio n , may have
keen influenced by the consideration, which was pointed out in th e t r i a l ,
that i t was le s s reasonable fo r these o ffic e rs to believe a f te r th e second
incident th a t the prisoners involved were shot while try in g to escape than
it was a f te r the f i r s t , and th a t measures should have been taken a f te r the
firs t shootings to prevent a re p e titio n .
(vii) T rle l of Kurt Student
In the t r i a l of ICurt Student by a B ritis h M ilitary Court a t Luneberg,
Germany, 6 - 1 0 May 19^6, the accused was faced w ith eight charges alleging
var crimes committed by him in the kingdom of Greece (according to the
last three charges, on the Island of Crete i t s e l f ) as Commander-in-Chief
of the German forces in C rete, a t various times during May and June 19^1.
The charges alleged resp ec tiv e ly th a t he was "responsible fo r" , f i r s t ,
the use cn or about 22 May of B ritis h prisoners of var as a screen fo r the
advance of German troops, when, near Malene on the Island of C rete, troops
under his command drove a party of B ritis h prisoners of war before them,
resulting in a t le a s t s ix of these B ritis h prisoners of wer being k ille d
/by the f i r e
by th e f i r e of other B ritis h tro o p s; secondly, th e employment in May of
B ritis h prisoners of war on p rohibited work, when, a t Maleme aerodrome on
th e Island of C rete, troops under h is command compelled B ritis h prisoners
of war to unload arms, ammunition end w arlike sto re s from German a irc ra ft;
th ir d ly , the k illin G on or about 23 May of B ritis h prisoners of war, when,
a t Maleme aerodrome on th e Islan d of C rete, troops under h is command shot
and k ille d severe! B ritis h prisoners of war fo r refu sin g to do prohibited
work; fo u rth ly , th e bombing on or about 2k May of No. 7 General H ospital
when, near Gnlatos on th e Islan d of C rete, a ir c r a f t vinder h is command bombed
a h o s p ita l which was marked w ith a Red Cross; f i f t h l y , the use on or about
2k May of B ritis h prisoners of wer as a screen fo r the advance of German
tro o p s, when, near Galatos on th e Islan d of C rete, troops under h is command
drove a party of B ritis h prisoners of war before them (these B ritis h
prisoners of war being the S ta ff and p a tie n ts of No. 7 General H ospital),
re s u ltin g in a named S ta ff Sergeant of the Royal Army Medical Corps and
other B ritis h prisoners of war being k ille d by the f i r e of B ritis h troops;
s ix th ly , the k illin g on or about 27 Mny, of B ritis h prisoners of war, when,
near G alatos, troops under b is command k ille d th re e so ld iers of the Welch
Regiment who had surrendered to them; seventhly, th e k illin g on or about
27 May, of a B ritis h p riso n er of war, when, near G alatos, troops under his
command w ilfu lly exposed B ritis h prisoners of war to th e f i r e of B ritis h
tro o p s, re s u ltin g in the death of a named P riv ate of the Welch Regiment;
and f in a lly , th e k illin g in June of B ritis h prisoners of war, when, a t a
prison camp near Maleme, troops under h is command shot and k ille d several
B ritis h prisoners of war. He pleaded not g u ilty to a l l th e charges.
The offences alleged a l l took place in connection w ith an atta ck by
German p a ra ch u tists on th e Isla n d of Crete vinder the d ire c tio n of the accused.
The l a t t e r , then General Student, was shown to have been a t h is base in
Greece u n til th e morning of 25 May 1941, and to have been in Crete from that
time u n til the end of Juno 141. Air. support iras in the control of General
von Richthoven, Commander of the 8th Air Corps, though a c e rta in degree
of co-operation between th e two generals was shown to have ex isted .
The accused was found not g u ilty of the f i r s t , fo u rth , f i f t h , seventh
and eighth charges but g u ilty of the second, th ir d and s ix th .
Subject to confirm ation by superior m ilita ry au th o rity , he was sentenced
to imprisonment fo r fiv e y ears. This sentence was n o t, however, confirmed.
The eight charges brought against the accused alleg ed , not offences
committed by him, but offences fo r which he was resp o n sib le. The Prosecutor
pointed out in h is closing address: "This case f a l l s r e a lly in to two
p a rts and th ere aye two separate m atters which i t w ill be your duty to
decide. F i r s t whether these events which you have heard sworn to in the
/w itness box
 E/CK.U/V.19
Page 195

witness box or any of thon in fa c t tool; place and i f you decide th a t they
did take place the second point w ill a ris e as to whether th is man was
responsible fo r them".
Student was not proved to have ordered any of the offences alleged,
end i f follows th a t in finding him G uilty on th ree charges the Court
nust e ith e r have applied the doctrine of the in d ire c t re s p o n sib ility of a
commander fo r offences committed by h is tro o p s, or found th a t i t could be
inferred from the circumstances th a t orders had in f a c t been given by the
accused. As ha3 been seen, the Confirming A uthority d iffe re d from the
Court in h is estim ate of Students re s p o n s ib ility .
The Prosecutor claimed th a t: "General Student was very keen on the
capture of C rete. He had p itte d h is opinion against th e opinion cf H itle r
and i t was up to him to get Creto a t a l l costs and in my submission a l l
these th ings were done by subordinates w ith th e f u l l knowledge th a t they
would have been supported by th e i r C om ander-in-Chief". Defence Counsel,
on the other hand, pointed out th a t: "When a General decides to moke a big
scale operation on a corps b a sis he makes h is appreciation of the s itu a tio n
and h is s ta f f work out the orders regarding d e ta ils . Any general policy
is obviously th a t G eneral's re s p o n s ib ility but I m aintain th a t th e d e ta ils
are not. The orders which have been worked out by h is s ta f f are passed
on to a l l commanders a t a l l le v e ls u n til th e small d e ta ils are a rriv e d a t.
It is the small task s such as the atta ck on a given h i l l which are planned
and c a rrie d out by the ju n io r conmanders and th e ir tro o p s. Therefore surely
is i t not the ju n io r commanders who are responsible fo r any small and
isolatod in cid en ts happening w ithin th e ir platoons or sections' and are not
the senior commanders responsible fo r what happons throughout th e ir command
as a whole". The b a sis p rin c ip le s reletin G to th e extent of the
resp o n sib ility of a commander fo r offences committed by h is tro o p s, however,
vere not f u lly examined in th e present case.
C ertain fa c ts may nevertheless be se t out which vere considered of
seme importance in the case, end vhich may have talien in to account by the
Ccurt and by the Confirming A uthority in making th e ir resp ectiv e decisions.
In the f i r s t place, i t iras recognized as more probable th a t repeated
or wide-spread offences were performed under the G enerels orders than
isolated offences. Counsel fo r the Defence observed th a t e l l th e charges
related to a cts done in the Meleme/Canea eree, vhereas a ctu a lly troops
vere dropped a t four main points, Meleme, Canea, Bhefchymnon and Herakleion.
In othor. words, he claimed, only about h a lf of the troops concerned in the
invasion were in th e llaleme/Canea Rrea. I t could not, th e re fo re , be said
that i t was the general policy of th e Parachute troops to ccmmit a tro c itie s
and to capture Crete a t any p ric e . Vfliy, he asked, i f the shooting of
/p riso n e rs
 / C SA / i.19
Page 1^6

prisoner b of vor Vas General S tu d en t's generel p o licy , did not incidents
occur a t the prison cbkpb a t Conia pod Skenis sim ilar to those alleged to
have happened a t the camp t-ter Helene? *
The Prosecutor claimed thect ttocee Instances had te e n proved In which
captured troops had "been forced hy German so ld iers to advance ahead of then,
e ith e r to act as a screen to th e l e t t e r in th e ir attack or to cause the
Im perial troops to re v e al th e ir p o sitio n s hy f ir in g on the prisoners in
mistake fo r th e ir enemies. Tho fa c t th a t no le ss than th re e instances of
such behaviour had been proved gave ris e to an inference, in the Prosecution's
submission, th a t an in s tru c tio n had been Given th a t in c e rta in circumstances
such action was c o rre c t. Ea pointed out th a t General Student had said
th a t he was responsible fo r the whole of the tra in in g of th e parachute
d iv isio n .
In h is summing up th e Judge Advocate set out very c le a rly what had
been the P rosecution's p o sitio n in the case; the Prosecution, he said, "are
going to say th a t, vixen you look e t th is l i s t of a tr o c itie s deposed to by
the ordinary decent type of so ld ie r or airman, you w ill have to draw the
inference th a t i t was calculated.; th a t i t was p ert of th e policy and th at
i t would only a ris e in the w ell d isc ip lin e d German fo rces i f those troops
and the o ffic e rs knew th a t they had been e ith e r ordered to do i t by th e ir
commander o r, a lte rn a tiv e ly , th a t they had been le d to believe th a t nothing
would have been heard about i t and i t would be condoned and appreciated".
A second important question in connection w ith th e re sp o n sib ility of
th e accused was th a t of h is o f f ic ia l re la tio n s h ip w ith Genoral von Richthoven,
Commander of the 3th Air Corps. C learly i f th e l a t t e r was able to act
e n tire ly independently of Student, th e accused could not be held responsible
fo r the bombing of the aerodrome. Defence Counsel claimed th a t during a
conference between th e accused and General von Richthoven, only general
o u tlin e s fo r a ir support were discussed. The Prosecutor, on th e other hand,
claimed th a t th e h o sp ita l could not have been sele c ted as a ta rg e t without
th e knowledge of the accused and h is s t a f f . The Judge Advocate's opinion
was th a t the Court would "be s a tis f ie d th a t, in any major operation on that
isla n d , th e re would be no bomb dropped w ithout Student knowing why and
ensuring th a t th e parachute troops should not be bombed"; he thought that the
Court would cccept "th a t th e re was, in th is German expedition, th e closest
lia is o n between the s ta f f of th e a i r force and tlie s ta f f on the ground".
Nevertheless the accused was found not g u ilty of the fo u rth charge.
The physical presence of the accused in Crete a t the time of the
alleged offences, on the other hand, was not regarded by Counsel as important
The Prosecutor submitted th a t i t was "quite immaterial" whether he was in
/Athens
 E /cg.h/v.i9
Page 197

Athens or in Crete "a t the tin e " ; he was supreme commander during th e whole
operation. The Defence made no p a rtic u la r use of the fa c t th a t th e
accused did not a rriv e in Crete u n til 25 May 19^1. The Judge Advocate
re s tric te d him self to the observation th a t: " I t i s common ground th a t
General Student was not in th is area a t a l l before th e morning of the
25 May, and th e re fo re anything th a t he may bo responsible fo r up to th a t
date would have been done from h is base in Greece".
(v iii) T ria l of F r itz S art.lenstein and Five Others
Another in te re s tin g B ritis h T r ia l is th a t held before a B ritis h
M ilitary Court s itt i n g a t Wuppertal, Germany, h - 5 June 1 9 ^ > of F r itz
H artjenstein and Five Others, who were accused of being concerned in th e
k illin g of a B ritis h prisoner of war a t Struthof/H atzw eiler prison camp on
or about 30 July 1 9 ^
Of H a rtje n ste in 's re s p o n s ib ility in th e alleged crime; th e Judge
Advocate, in h is Bumming up, said: "The p o sitio n of H artje n ste in was th a t
he was Kommandant of th is cam p........ Obviously you would have no doubt about
his im plication i f you were s a tis f ie d th a t he gave orders fo r th e execution.
There is another aspect you w ill have to consider; to what extent he is
lia b le i f he did not give orders fo r th is e x ec u tio n ... There is no d ire c t
evidence th a t he authorized th is execution. Ecme implied i t because he was
the Kommandant of the camp; th e re i s some l i t t l e vague evidence". He
reminded,the Court th a t, according to th e P ro secu tio n 's case, H a rtje n ste in
"either authorized the execution or was running a camp where au th o rizatio n
was not req u ired ". H artjen stein was sentenced to death and th is sentence
was confirmed.
(ix) T ria l of V ictor Seeger
The remarks of the Judge Advocate in one other case tend to show th a t
a Commander can in c e rta in circumstances, be held lia b le fo r offences vhich
were committed, not on h is orders, but as a re s u lt of h is negligence. A
M ilitary Court s itt i n g a t Wuppertal on 10 and 11 July 19b6, sentenced
Generel V ictor Seecer to imprisonment fo r th re e years on a charge of being
concerned in the h illin g of a number of A llied prisoners of war; the
Judge Advocate said of th i6 accused: "The point you w ill have to c a re fu lly
consider - he is not p art of any organization a t a l l - i s : was he concerned
in the k illin g , in the sense th a t ho had a duty and had the power to prevent
these people being d e a lt with in a way which he must in ev itab ly have known
would re s u lt in th e ir death ........ i t is fo r you with your members, using
your m ilita ry knowledge going in to the whole of th is evidence to say whether
it is rig h t to hold th a t General Seeger, in th is period between, l e t us
say the middle of August or towards the end of August, was holding a
/m ilita ry
E/CK.U/w.19
Pago 198

m ilita ry p o sitio n which required him to do th in c s which he fa ile d to do

npfl which amounted to a war crime in th e sense th a t they were in trench
of the Laws and Usaces of War".
(x) The Yrmashita T ria l
Of the United S tates t r i a l s which are relev an t in th is connection
e a s ily the most important is the t r i a l by a United S tates M ilitary
Commission a t H anila, P hilippine Islan d s, of General Yamashita, Commanding
General of the lHth Army Group of the Im perial Japanese Army, which took
place between 1 October and 7 December 19^5. Hie indictment against him
alleged th a t he v io la te d th e laws of war in th a t, between 9 October 19^ and
2 September 19^5, a t Manila and a t other places in th e P hilippine Islands,
while commander of armed forces of Japan a t war w ith the United S tates of
America and i t s a l l i e s , he unlaw fully disregarded and fa ile d to discharge
h is duty as conanander to control the operations of th e members of h is
command, perm itting them to commit b ru ta l a tr o c itie s and other high crimes
against people of the United S tates and of i t s a llie s and dependencies,
p a rtic u la rly the P h ilip p in es,
The opening statem ent of the Prosecution contains the following words:
"The charge . . . . s ta te s th a t the accused, during o c e rta in period
of time while he was Commander of Armed Forces of Japan then a t war with
th e United S ta te s of America and i t s A llie s , unlaw fully disregarded
and f a ile d to discharge h is duty as such Commander t o c o n tro l the
operations of th e members of h is command, perm itting them to commit
b ru ta l c tr o c itie s and other high crimes against people of th e United
S ta te s and i t s A llie s and dependencies, p a rtic u la rly the Philippines;
and thereby v io la te d the laws of war. That is the charge, th a t is
the case: Disregarded h is duty to control the members of h is command,
and perm itted them to commit v io la tio n s of the laws of war".
I t was not alleged th a t Yecnashita had ordered any of th e crimes set
fo rth in the B ills of P a rtic u la rs presented to the Commission. The f i r s t
B ill of P a rtic u la rs ste te d simply th a t "members of the Armed Forces of
Japan under the command of th e accused" committed th e offences enumerated
th e re in ; and th e Supplemental B ill of P a rtic u la rs alleged th a t such armed
fo rces "were perm itted to commit" fu rth e r offences se t out; i t is not even
e x p lic itly s ta te d who gave the necessary perm ission, though th e accused is
c le a rly meant.
Counsel fo r the Defence was mainly concerned to show, not th a t the
a tr o c itie s had not been committed, but th a t th e accused n e ith e r knew of,
condoned, excused or ordered them. One of h is sentences is reminiscent of
the claim of Bauers Counsel th a t Bauer was too overworked and harassed by
/th e approaching
 E/CN.U/W.19
Page 199

the approaching Allied forces to be able to exercise proper supervision

over the prisoners of war in his hands;* Counsel fer Yamashita said; "Can
it be seriously contended that a commander, beset and harassed by the
enemy, staggering under a successful enemy invasion to the south and
expecting at any moment another invasion in the north, that such a commander
could in the period of a handful of weeks gather in all the strings of
administration?" Other factors on which he relied were the newness of
the accused's command and the distance separating him and his troops; "How
can the man possibly be hold accountable for the action of troops which
had passed into his command only one month before, at a time when he was
I50 miles away - troops which he had never seen, trained or Inspected,
whose commanding officers he could not change or designate, and over whose
actions he has only the most nominal control?"**
The Judgment of the Commission included the following passages, which
serve to show, inter alia, the types of violations of human rights involved;
"The crimes alleged to have been committed by the accused in
violation of the laws of war may be grouped into three categories:
(l) Starvation, execution or massacre without trial and mal-admini81ration
generally of civilian internees and prisoners of war; (2) Torture, rape,
murder and mass execution of very large numbers of residents of the
Philippines, including vemen and children and members of religious
orders, by starvation, beheading, bayoneting, clubbing, hanging,
burning alive, and destruction by explosives; (3) Burning and
demolition without adequate military necessity of large numbers of
homes, places of business, places of religious worship, hospitals,
public buildings and educational institutions. In point of time, the
offences extended throughout the period the Accused was in command of
Japanese troops in the Hiilippines. In point of area, the crimes
extended throughout the Philippine Archipelago, although by far the
most of the incredible acts occurred on Luzon. It is "noteworthy
that the Accused made no attempt to deny that the crimes were committed,
although some deaths were attributed by Defence Counsel to legal
execution of armed guerrillas, hazards of battle and action of
guerrilla troops favourable to Japan...
"The Prosecution presented evidence to show that the crimes were
so extensive and widespread, both as to time end area, that they must
either have been wilfully permitted by the accused, or secretly ordered
by the accused. Captured orders issued by subordinate officers of
the accused were presented as proof tliet they, at least, ordered
certain acts leading directly to exterminations of civilians under
* See pages 269-73.
** Yamashita claimed to have been riven only ver-v qiorflrvp +Vr>
E/CNA/W.19
Page 200

th e cuise of elim inating th e a c tiv itie s of g u e rrilla s h o s tile to

Japan. k ith resp ect to c iv ilis a in tern ees and prisoners of war, the
proof offered to the Commission ulleged crim inal n eg lect, especially
w ith respect to food and medical su p p lies, as w ell as complete failure
by the higher echelons of commend to d etect and prevent cru el and
inhuman treatm ent accorded by lo c a l commanders and guards. The
C om ission considered evidence th a t the provisions of th e Geneva
Convention received scant compliance or a tte n tio n , and ,that the
In te rn a tio n a l Red Cross was unable to render any sustained h elp . The
c ru e ltie s and arrogance of th e Japanese M ilitary P o lice, prison camp
guards and o f f ic ia ls , w ith lik e actio n by lo c a l subordinate commanders
were presented a t length by the prosecution.
"The Defence e stab lish ed the d if f ic u ltie s faced by the accused
w ith resp ect not only to th e sw ift and overpowering advance of American
fo rc e s, but a lso to the e rro rs of h is predecessors, weaknesses in
organization, equipment, supply w ith esp ecial reference to food and
gasoline, tra in in g , communication d is c ip lin e and morale of h is troops.
I t was alleged th a t the sudden assignment of Naval and Air Forces to
h is t a c t ic a l command presented almost insurmountable d if f ic u l tie s .
This s itu a tio n was followed, the Defence contended, by f a ilu r e to
obey h is orders to withdraw troops from Manila, and th e subsequent
massacre of unarmed c iv ilia n s , p a rtic u la rly by Naval fo rc e s. P rio r
to the Luzon Campaign, Havel fa rc e s had reported to a seperate ministry
in the Japanese Government and Naval Commanders may not have been
recep tiv e or experienced in th i6 instance w ith resp ect to a Jo in t
land operation under a sin g le commander who was designated from the
Army Service. As to the crimes themselves, complete ignorance th a t
they had occurred was 6 to u tly maintained by the accused, h is principal
s t a f f o ffic e rs and subordinate ccamncnders; fu rth e r, th a t a l l such
a c ts , i f committed, were d ire c tly contrary to th e announced p o lic ie s,
wishes and orders of t i e accused. The Japanese Commanders te s tif ie d
th a t they did not mcke personal inspections or independent checks
during the P hilippine campaign to determine fo r themselves the
e sta b lish e d procedures by which th e ir subordinates accomplish th e ir
m issions. Taken a t f u l l face value, th e testimony in d ic a tes th a t
Japanese senior commanders operate in a vacuum almost in another world
w ith resp ect to th e ir tro o p s, compared w ith standards American Generals
take fo r granted........
"This accused is an o ffic e r of long years of experience, broad
in i t s scope, who has had extensive command and s ta f f duty in the
Im perial Japanese Army in peace as w ell as war in Asia, Malaya, Europe,
/and the .
 e / cn.4 / w.19
Page 201

and the Japanese Home Islan d s. C learly, assignment to command

m ilita ry troops is accompanied "by broad au th o rity and heavy
re s p o n s ib ility . This has been tru e in o i l armies throughout recorded
h is to ry . I t is absurd, however, to consider a commander a murderer
or r a p is t because one of h is so ld ie rs commits a murder or a rape.
Nonetheless, where murder and rape and v icio u s, revengeful actions
are widespread offences, and th ere is no e ffe c tiv e attempt by a
commander to discover and control the crim inal acts such a commander
may be held responsible, even crim inally lia b le , fo r th e law less acts
of h is troops, depending upon th e ir nature and the circumstances
surrounding them. Should a commander issue orders which lead d ire c tly
to law less a c ts, the crim inal re s p o n sib ility is d e fin ite and has
always been so understood. The Hulss of Land Warfare, F ie ld Manual
27-IO, United S tates Army, are c le a r on these p o in ts. I t is fo r the
purpose of m aintaining d isc ip lin e and c o n tro l, among other reasons,
th a t m ilita ry ccmmenders are given broad powers of adm inistering
m ilita ry ju s tic e . The ta c tic a l s itu a tio n , the ch aracter, tra in in g
and capacity of s ta f f o ffic e rs and subordinate commanders as well as
the t r a i t s of ch aracter, and tra in in g of h is troops are other important
fa c to rs in such cases. These m atters have been the p rin c ip le
considerations of th e Commission during i t s d e lib e r a tio n s ....
"General Yamashita: The Commission concludes: (1) That a
s e rie s of a tr o c itie s and other high crimes have been committed by
members of the Japanese armed fo rces under your command against people
of th e United S ta te s, th e ir a llie s and dependencies throughout the
P hilippine Isla n d s; th a t they were not sporadic in nature but in many
cases were m ethodically supervisod by Japanese o ffic e rs and
non-commissioned o ffic e rs ; (2) th a t during th e period in question you
fa ile d to provide e ffe c tiv e control of your troops as was required by
the circum stances.
Accordingly,upon sec re t w ritte n b a llo t, tw o-thirds or more of the
members concurring, the Commission finds you g u ilty as charged and
sentences you to death by hanging."
The case eventually came before the Supreme Court of the United States
and on an a p p lic atio n fo r leave to f i l e a p e titio n fo r w rits of habeas
corpus and p ro h ib itio n in th a t Court, and on a p e titio n fo r c e r tio r a r i to
review an order of th e Supreme Court of the Commonwealth of the P h ilip p in es,
denying the p e titio n e r 's ap p lic atio n tc the court fo r w rits of habeas corpus
and p ro hibition. Judgment was deliv ered on 4 February 1946.
In th e m ajority judgment of the Supreme Court, delivered by Chief
Justice Stone, the follow ing passage appears:
/"The charge,
/CN.J0 M 9
Page 202

"The charge, so f a r as now re le v an t, is th a t p e titio n e r, "between

9 October I 9W and 2 Septembor 19^5, in the P hilippine Isla n d s, 'while
commander of armed fo rces of Japan a t war w ith the United S tates of
America and i t s a l l i e s , unlaw fully disregarded and fa ile d to discharge
h is duty as commander to co n tro l the operations of the members of hi6
command, perm itting them to commit b r u t d a tr o c itie s and other high
crimes against people of the United S ta te s and of i t s a llie s and
dependencies, p a rtic u la rly th e P h ilip p in esj and h e , . , thereby violated
the laws of war' . . . I t is urged th a t th e charge does not alleg e that
p e titio n e r has e ith e r committed or d ire c ted th e commission of such
a c ts , and consequently th a t no v io la tio n is charged as against him.
But t h i s overlooks the f e e t th a t th e g is t of th e charges is an
unlawful breach of duty by p e titio n e r as an army commander to control
the operations of th e members of h is command by 'p erm ittin g them to
commit' the extensive and widespread a tr o c itie s sp ec ifie d . The question
then is whether th e law of war imposes on an army commander a duty
to take such appropriate measures as are w ithin h is power to control
the troops under h is command fo r th e prevention of the sp ecified acts
which are v io la tio n s of th e law o f war and which are lik e ly to attend

th e occupation of h o s tile te r r it o r y by on uncontrolled so ld iery , and
whether he may be charged w ith personal re s p o n s ib ility fo r h is failu re
*
to take such measures when v io la tio n s r e s u lt. That t h i s was th e
precise issu e to be tr i e d was made c le a r by th e statem ent of the
prosecution a t the opening of th e t r i a l .
" I t is evident th a t the conduct of m ilita ry operations by troops
whose excesses are un restrain ed by the orders or e ffo rts of th e ir
commander would almost c e rta in ly r e s u lt in v io la tio n s which i l is the
purpose of th e low of war to prevent. I t s purpose to p ro tect c iv ilia n
populations and prisoners of war from b r u ta lity would la rg e ly be
defeated i f the commander of an invading army could w ith impunity
neglect to take reasonaole measures fo r th e ir p ro te c tio n . Hence the
law of war presupposes th a t it6 v io la tio n s is to be avoided through
th e co n tro l of the operations of war by commanders who are to some
ex ten t responsible f o r th e ir subordinates.
"This i s recognized by th e Annex to Fourth Hague Convention of
1907, resp ectin g the laws and customs of war,on land. A rtic le I lays
down as c condition which an armed force must f u l f i l l in order to be
accorded the rig h ts of law ful b e llig e re n ts , th a t i t must be "commanded
by a person responsible fo r h is subordinates". S im ilarly A rticle 19 of
the Tenth Hague Convention, r e la tin g to bombardment by naval vessels,
/provides
 E/CN.tyw.i9
Fage 203

provides th a t commanders in ch ief of th e h e l i i gereut v essels "must see th a t

the above A rtic le s are properly c a rrie d o u t". And A rtic le 26 of th e Geneva
Bed Cross Convention I 929 fo r the am elioration of th e condition of the
wounded and sick in armies in the f ie ld , makos i t "the duty of the
commanders-in-chief o f th e b e llig e re n t armies to provide fo r the d e ta ils o f
execution of the foregoing a r tic le s (of the convention) as w ell as fo r
unforseen cases". And, f in a lly , A rtic le ^3 of the Annex of th e Fourth Hague
Convention requires th a t the commander of a force occupying, enemy te r r it o r y ,
as was p e titio n e r, " sh a ll take a l l the measures in h is power to re s to re , and
ensure, as fa r as p o ssib le, public order and sa fe ty , while resp ectin g , unless
absolutely prevented, the laws in Force in the country".
"These provisions p la in ly imposed on p e titio n e r, who a t the time
specified was m ilita ry governor of the: P h ilip p in es, as w ell as commander of
the Japanese Forces, an affirm ative duty to take such measures as were
within h is power and appropriate in the circumstances to p ro te c t prisoners
of war and the c iv ilia n population. This duty of a commanding o ffic e r has
heretofore been recognised, and i t s breach penalised on our own m ilita ry
trib u n als.* A lik e p rin c ip le has been applied so as to impose l i a b i l i t y on
the United States in in te rn a tio n a l a rb itra tio n s . Case of Jenaud, 3 Moore,
International A rb itra tio n s, 3OCO; Case of "The Z afiro ", 5 Hackworth, Digest
of In te rn a tio n a l law, 707*
"We do not make the laws of war but we resp ect them so f a r as they do
not c o n flic t w ith the commands o f Congress o r th e C onstitution. There i s no
contention th a t the present charge, thus read , i s without the support of
evidence, or th a t the commission held p e titio n e r responsible fo r f a ilin g to
take measures which were beyond h is control or inappropriate fo r a commanding
officer to take in the circum stances. We dc not here appraise the evidence on
which p e titio n e r was convicted. We do not consider what measures, i f any,
petitioner took to prevent the commission, by the troops under h is command, of
the p la in v io la tio n s o f the law of war d e ta ile d in the b i l l of p a rtic u la rs ,
or whether such measures as ..e may have taken were appropriate and s u ffic ie n t
to discharge the duty imposed upon him. These are questions w ithin the
peculiar competence of the m ilita ry o ffic e rs composing the commission and were
for i t to decide. See Smith v . Whiting, supra, 178. I t is p la in th a t the
charge on which p e titio n e r was tr ie d charged him with a breach of h is duty

* A fc c tn cte to the Judgment a t th is p o in t runs: "Failure of an o ffic e r

to take measures to prevent murder of an inhabitant of an occupied
country committed in h is presence. Gen. Orders No. 221, Hq. l i v . of the
Philippines, August 17, 1901. And in Gen. Orders No. 2ck, Hq. Fiv. of the
Philippines September 9, 1901, i t wa3 held th a t an o ffic e r could net be
found g u ilty fo r fa ilu re to prevent a murder unless i t appeared th a t the
accused had "the power to prevent" i t . "
/to control
E/CR.yW.19
Page 20k

to control the oporations o f th e members of h is command, by perm itting

them to commit the sp ecified a t r o c i t i e s . This vas enough to req u ire the
commission to hear evidence tending to e sta b lis h the culpable fa ilu re of
p e titio n e r to perform tho duty imposed on him by th e la v of v ar and to pass
upon i t s su fficiency to e s ta b lis h g u ilt.
"Obviously charges of v io la tio n s of the la v of var tr ia b le before a
m ilita ry trib u n a l need not *be sta te d v ith the p re c isio n o f a common lav
indictm ent. Cf. C ollins v McDonald, supra, U20. But ve cqnclude th a t ths
a lle g atio n s o f the charge, te s te d by any reasonable standard, adequately
a lleg es a v io la tio n of the la v o f v ar and th a t the commission had authority
to tr y and decide the issue vhich i t ra is e d . Cf. Eealy v United S ta te s,
152 U.S. 539; W illiamson v United S ta te s , 207 U.S. ^25, ^ 7 ; G lasser v .
United S ta te s , 315 U.S. 60, 66, and cases c ite d " .*
I t v i l l have been noted th a t Chief Ju stic e Stone d eliv ered the
Judgment of a m ajority of the Gupeme Court. Mr. Ju stic e Murphy and
Mr. Ju stic e Kutledge dissented fo r th is opinion. The tvo d issen tin g Judges
held the opinion, in te r a l i a , th a t the a tr o c itie s proved to have taken place
vere committed v h ile Yamashita's troops vere disorganized la rg e ly due to the
onslaught of the United S tates fo rc e s, and th a t since Yamashita had not
ordered these offences to be committed and had not even knovn o f th e ir
happening he could not bo held responsible fo r th e ir p e rp e tra tio n .
(x i) T ria l of Yuicki Sakamoto
Another re le v an t United S tates T r ia l, i s th a t of Yuicki Sakamoto, held
a t Yokohoma, Japan, on February 13th , 19^6. The accused vas sentenced to
l i f e imprisonment a f te r being found g u ilty on a charge alle g in g th a t he
"betveen 1 January 19^3 and 1 September 19^5, a t a p riso n er o f v ar camp
Fukuoka ;,"l, Fukuoka, Kyushu, Japan did commit cru el and b ru ta l a tro c itie s
and fa ile d to discharge h is duty as Commanding O fficer in th a t he permitted
members o f h is command to commit cruol and b ru ta l a tr o c itie s ."
(x i i ) T ria l o f Yoshio Tachibana and Others
A charge e n title d Neglect of Euty in V iolation o f the Lavs and Cuctoas
o f War vas brought again st L t. General Yoshio Tachibana and Major Sueo Matofca
o f the Im perial Japanese Army and against Vice Admiral Kunizo Mori,
Captain Shizuo Yoshii and L t. Jisu ro Sujeyoshi of the Im perial Japanese
Navy, in th e ir t r i a l by a United S tates M ilita ry Commission a t Guam,

* A footnote to the Judgment rep eats: " ........ We do not weigh the evidence.
We merely hold th a t the charge s u ffic ie n tly s ta te s a v io la tio n against
the la v of v a r, and th a t tho commission, upon the fa c ts found, could
properly find p e titio n e r g u ilty of such a v io la tio n ."

/Marianas Islands,
 E/CN.4/V.19
Pag 205

Marianas Isla n d s, in August, I 9I+6. The S p ecificatio n s appearing under th is

charge alleged th a t various of the above accused unlawfully disregarded,
neglected and f a ile d to discharge th e ir duty, as Commanding General and
other respective ranks, to control members of th e ir commands and others
under th e ir c o n tro l, or properly to p ro te c t p riso n ers of war, in th a t they
permitted the unlawful k illin g of p riso n ers of wax, or perm itted persons
under th e ir control unlaw fully to prevent the honourable b u ria l o f prisoners
of war by m u tilatin g th e ir bodies o r causing them to be m utilated or by
eating fle s h from th e ir b o d ies. The Prosecution claimed th a t th e re had been
an In te n tio n a l omicsion to discharge a le g a l duty.
A ll of the accused mentioned above were found g u ilty of the charge
alleging neglect of duty, and although a sentence of l i f e imprisonment was
the highest penalty imposed by the Commission on, an accused sentenced on
th is charge alone, y et the t r i a l does serve as fu rth e r proof th a t n e fle c t
on the p a rt of a higher o ffic e r of a duty to r e s tr a in troops and other
persons under h is control can render the o ffic e r him self g u ilty o f a war
crime when h is omission has lead to the commission o f such a crime.
(x iii) The Milch T ria l
The Prosecution in the T ria l of F ield Marshal Milch before a United
States M ilita ry Tribunal in Nrnberg, claimed th a t a close analogy could be
drawn betveen th a t case and the Yamashita proceedings. The fa c ts were
sim ilar and the opinion of the Supreme Court was " p a rtic u la rly in p o in t in
the m atter of re s p o n sib ility fo r senior o ff ic e rs " . The Prosecutor said:
"In the cases of the medical experim ents, we have a much
le ss complex s itu a tio n . There i s no question o f a senior o ffic e r
in an occupied country, ra th e r we are faced w ith a simple d ire c t
chain of command problem. Milch - F o erster - Hippke. Had Milch
given the o rd er, the experiments would have been term inated, but
no order of term ination was given - people were murdered and
Bascher remained in the Luftwaffe u n til he was tra n sfe rre d to
the S.S. in March of 19^3 The defendant had an affirm ativ e
duty to know whet was going on, and an affirm ativ e duty to a ct
so as to stop the experiments. That he was Ignorant of the
i ,
tru e s ta te o f a f fa irs is unbelievable in view of the l e t t e r s and
the testimony of those who were below him. F ie ld Marshals are
not made as are non-commissioned o f f ic e r s ........ By holding the
o ffic e which he held, he had the duty to co n tro l the a c tiv itie s
of those vho were h is subordinates, to insure th a t they conducted
themselves as so ld ie rs and not as murderers. He has fa ile d
woefully in the ta s k .
/The judgment
E/CN.VW.19
Page 2C6

The Judgment c f the Court on Count two, which alleg ed

th a t the defendant was a p rin c ip le In , accessory to , ordered,
a b e tte d , took a consenting p a rt In and was connected w ith , plans
and e n te rp rise s involving medical experiments w ithout the s u b je c ts
consent, in th e course of which experiments, the defendant, w ith
o th e rs, p erp etrated murders, b r u t a l i t i e s , c r u e ltie s , to rtu re s , and
o th er inhuman a c ts , includes the following passages
"In approaching a ju d ic ia l so lu tio n .o f. the questions
involved in th is phase of the case, i t may be w ell to set
down seriatim the c o n tro llin g le g a l questions to b.e answered
by an analysis, of th e proof:
1. Were low-pressure and freezin g experiments carried
on a t Dachau?
2. Were they of a ch aracter to i n f l i c t to rtu re and
death on the subjects?
(The answer to th ese two questions may be said to
involve the establishm ent of the corpus d e l i c t i ) .
3. Did the defendant p erso n ally p a rtic ip a te in then?
4. Were they conducted tinder h is d ire c tio n o r command?
5. Were they conducted w ith p rio r knowledge on h is. p a rt
th a t they might be excessive or inhuman?
6. Did he have the power or opportunity to prevent or
stop them?
7. I f 30, did he fail to act, thereby becoming
particeps orim inis and accessory to them?"
The Court l a t e r expressed th e follow ing conclusions, having
v
declared the corpus d e lic ti to be proved:
"(3) .The prosecution does not claim (and th e re is no evidence),
th a t the defendant personally p a rtic ip a te d in th e conduct of
these experiments,
"(h).There is ho evidence th a t th e defendant in s titu te d the
experiments or th a t they were conducted or continued under
h is sp e c ific d ire c tio n or command ........
" (5) .Assuming th a t the defendant was kware th a t experiments of
some character were to be launched, i t cannot be said th a t the
evidence shows any knowledge on h is p a rt .that unw illing subjects
would be forced to submit them or th a t th e experiments would be
p a in fu l and dangerous to human l i f e . I t is quite apparent from
an o v e r-a ll survey of the proof th a t th e defendant concerned
him self very l i t t l e w ith the d e ta ils of these experim ents. I t
was quite n a tu ra l th a t th is should be so. His most pressing problems
/.
 E/CN.VW.19
Page 207

involved the procurement of labour and m aterials fo r the

manufacture of a irp la n e s ........
" (6 ).Did the defendant have the power or opportunity to prevent
or stop the experiments? I t cannot be gainsaid th a t he had the
a u th o rity to e ith e r prevent or stop them in so f a r as they were
being conducted under the auspices of the Luftwaffe. I t seems
extremely probable, however, th a t, in s p ite of him they would
have continued under Himmler Bid the S.S. But c e rta in ly he had
no opportunity to prevent or stop them, unless i t can be found
th a t he had g u ilty knowledge of them, a fa c t which has already
been determined in the n eg ativ e........
"(7) . In view of the above fin d in g s, i t is obvious th a t the
defendant never became p artlcep s crim inls and accessory in the
low-pressure experiments s e t fo rth in the second count of the
indictm ent.
As to the other experiments, involving subjecting human
beings to extreme low tem peratures both in the open a i r and in
w ater, the re s p o n s ib ility o f the defendant is even le s s apparent
than in the case of the low-pressure experiments........ "
In a concurring opinion, Judge P h illip s said : I cun of the opinion
and fin d as a fa c t from th e evidence in th is case th a t the defendant
Milch between th e years 1939 and I9V? vas S ecretary o f S ta te in th e Air
M inistry, Inspector General of th e A ir Force, Deputy to th e Commander-in-
Chlef o f th e A ir Force, a member o f the Nazi P a rty . The defendant Milch
was a lso F ie ld Marshal in the Luftwaffe, 19UO to 19^5 A ir Quarter
Master General, 19^1 to 19H ; member c f *he C entral Planning Board,
19^2 to 19^5; and Chief of the Jaeg erstab , 19^ to 19^5 and a lso was
G eneralluftzougm eister".
N evertheless, he concurred in the finding of not g u ilty on the second
Count: "All o f the testimony and the evidence, both fo r the Prosecution
and the Defence, is to th e e ffe c t th a t the defendant Milch did net have
such knowledge of the high a ltitu d e or low-pressure experiments which
were c arrie d out and completed by Luftwaffe physicians a t Dachau u n til
a fte r the completion of such experiments. The evidence o ffered as to the
knowledge or re s p o n s ib ility of the defendant Milch was not such a nature
as to show g u ilty knowledge on his p a rt of said experiments.
"As to the cooling or freezing experiments performed a t Concentration
Camp Dachau, fo r which the defendant is charged with re s p o n sib ility , I
find as a fa c t th a t the defendant ordered experiments to be conducted a t
the camp fo r the b e n e fit of the Luftw affe........
/"The
 E/CN.lt/W.19
Pago 208

"The defendant admits giving orders fo r the conduct of c e rta in

experim ents., , .but contends th a t he did not know o f, or contemplate, that
the experiments would be conducted in an ille g a l manner or would re su lt
in the injury or death of any person. The defendant fu rth e r a ss e rts that
he did not know or have any reason to believe th a t the experiments were
conducted in such manner u n til a f te r they had been completed. He therefore
in s is ts th a t he was and is not responsible fo r the unlawful manner in
which the experiments were a ctu a lly conducted by the Luftwaffe o ffice rs
and th a t he is not g u ilty o f any crime as a r e s u lt th ereo f.
"The Tribunal in i t s m ajority opinion has fu lly considered the
decision of the United S ta te s Supreme Court in the Judgment in re
Yamashita and has found th a t said decision is not c o n tro llin g in the case
a t bar. In weighing the evidence, the Tribunal was mindful of the fact
th a t the defendant gave the order and d irected h is subordinates to carry
on such experiments, and th a t th e re a fte r he fa ile d and neglected to take
such measures as were reasonably w ithin h is power to p ro te c t such subjects
from Inhumane treatm ent and deaths as a r e s u lt of such experiments.
Notwithstanding these fa c ts , the Tribunal is of the opinion th a t the
evidence f a i l s to disclose beyond a reasonable doubt th a t the defendant
had any knowledge th a t the experiments would be conducted in an unlawful
manner and th a t permanent in ju ry , inhumane treatm ent or deaths would
r e s u lt therefrom.
"Therefore the Tribunal found th a t the defendant did not have such
knowledge as would amount to p a rtic ip a tio n or re s p o n s ib ility on h is part
and th erefo re found the defendant not g u ilty on charges contained in
Count No. 2 ."
(xiv) T ria l o f Takashi Sakai
The extent to which th e Chinese Courts have been w illin g to go in
pinning re s p o n s ib ility o f th is kind onto commanders was shown by the Trial
of Takashi Sakai by the Chinese War Crimes M ilitary Tribunal of the
M inistry of National Defence, Nanking, 27 August 19^6. The accused was
sentenced to death a f te r having been found g u ilty , In te r a l i a , of
" in c itin g or perm itting h is subordinates to murder p riso n ers of war,
wounded so ld ie rs and non-combatants; to rape, plunder, deport c iv ilia n s;
to indulge in cruel punishment and to rtu re ; and to cause destruction of
property". The Tribunal expressed the opinion th a t i t was an accepted
p rin c ip le th a t a fie ld Commander must hold him self responsible fo r the
d is c ip lin e of h is subordinates. I t was inconceivable th a t he should not
have been aware of the a c ts of a tro c ity committed by h is subordinates
during the two yearB when hs d irected m ilita ry operations in Kwantung
and Hong Kong. This f a c t had been borne out by the English statement

/made by
 E/CT.10J.19
Page 209

made by a Japanese o ffic e r to the e ffe c t th a t th e order th a t a l l prisoners

of var should be k ille d , was s t r i c t l y enforced. Even the defendant,
during the t r i a l , hcd admitted a knowledge of murder of prisoners of war
in the Stovencons H ospital, Hong Kong. A ll th e evidence, said the
Tribunal, went to chow th a t the defendant know of the a tr o c itie s committed
by h is subordinates and d e lib e ra te ly l e t loose savagery upon c iv ilia n s and
prisoners of war.
I t w ill be noted th a t the Tribunal pointed out th a t the accused
must have known of th e a cts of a tr o c itie s committed by h is subordinates;
the question is th e re fo re , l e f t open whether he would have been held
g u ilty of breach of duty in re la tio n to acts of which he had no knowledge,
(rv) Conclusion
I t is c le a r th a t the knowledge th a t he might be made lia b le fo r
offences committed by h is subordinates even i f he did not order th e ir
p erp etratio n would in most cases act as a spur to a commander who might
otherwise permit the continuance of such crimes of which he was aware,
or be in s u ffic ie n tly c arefu l to prevent such crimes from being committed.
Any ru le making a commander to some degree responsible fo r the offences
of h is subordinates even in the absence of sp ec ific orders must go some
way towards preventing the v io la tio n of human rig h ts and towards
v in d icatin g such rig h ts i f they have been in frin g ed .
The relev an t m a terial whose c o lle c tio n has so f a r been possible has
been s e t out a t above seme len g th , in view of th e importance of the subject
and th e present s ta te of flu x in th e law and p ra c tice concerning i t . The
follow ing general remarks may, however, also be made.
1. lhe law on th is m atter is in a form ulative stage and i t would
be wrong to expect to fin d hard and f a s t ru le s in u n iv ersal ap p lic atio n .
In the circumstances i t is In ev itab le th a t considerable d is c re tio n is
l e f t in the hands of th e Courts to decide how f a r i t Is reasonable to
hold a commander responsible fo r such offences of h is troops as he did
not order.
2. I t is c le a rly e sta b lish e d th a t a re s p o n s ib ility may r e s t in th e
absence of any d ire c t order fo r the commission of crimes.
3. The m a te ria l contained in th e reg u latio n s* and the cases** re la tin g
to such re s p o n s ib ility may be separated in to two categ o ries:
( i) m a te ria l illu s tr a tin g hew, on proof of c e rta in circumstances,
th e burden of proof is s h ifte d , so as to place on an accused

* See peges l8 3 -,f

** See pages 15-209.
/th e task
e / cN.V w.19
Page 210

th e ta sk of showing to th e s a tis fa c tio n of the Court th a t he

was not responsible fo r th e offences committed by h is troops,
(ii) m a terial a c tu a lly defining th e ex ten t to which a commander
may be held responsible fo r h ie tro o p s' offences.
The f i r s t type of m a terial r e la te s to a m atter of evidence, the
second type to a m etter of substantive law,
4. Mainly of in te r e s t in connection w ith th e s h iftin g of th e burden
of proof are the Canadian and B ritis h provisions (6ee pages 13-4) and
th e T ria l of Kurt Meyer (see pages 164-188} during which the Court heard
not only a discussion of th e e ffe c t of these provisions, but also some
remarks on the p a rt of th e Judge Advocate (pages I 86- 7) on th e proving
by circu m stan tial evidence of the giving of a d ire c t o rd e r. Hie
arguments quoted on pages 195-7 from th e T ria l of Kurt Student are of
the same kind. Of p a rtic u la r importance is th e s tre s s placed on the
repeated occurrence of offences by troops under one command as prima
fa c ie evidence of the re s p o n s ib ility of the commander fo r those
offences (see pages I 83 and 195-6) * The T ria l of Bauer (see pages
lC-93) seems to suggest th a t re s p o n s ib ility may be in fe rre d from
surrounding circum stances, including the p rev ailin g s ta te of
d is c ip lin e in on army.
5. The above mentioned t r a i l s throw seme lig h t also on th e fa c ts
which must be proved in order to make a commander responsible fo r the
offences of h is tro o p s, (c f. ( i i ) above).
Thus, in the Tried of Student, Counsel and th e Judge Advocate spoke
in terms of "General S tu d en t's general policy ", of no bomb being dropped
"without Student knowing wly" and of the troops b eliev in g e ith e r that
th e offences had been ordered by the commander or th a t th e ir offences
would be "condoned and appreciated". I t i s to be noted th a t the
p o s s ib ility of Student being made lia b le in th e absence of knowledge,
on th e grounds th a t he ought to have found out whether offences were
being committed or were lik e ly to be committed, or th a t he ought to
have e ffe c tiv e ly prevented th e ir occurrence, is not mentioned.
In th e T r ia l of Kurt Meyer, th e Judge Advocate s ta te d th a t anything
re la tin g to th e question whether th e accused e ith e r order, encouraged
o r v e rb a lly or t a c i t l y acquiesced in th e k illin g of p riso n ers, or wilful!:
f e lle d in h is duty as a m ilita ry commander to prevent or to take such
actio n as the circumstances required to endeavour to prevent, the killing
of p riso n e rs, were m atters a ffe c tin g the question of the accused's
r e s p o n s ib ility .

* See page 200 fo r an example of th e same lin e of thought in the

Yamashita T r ia l.
 E/CHA/w.19
Page 211

Here i t w ill be noted th a t the p o s s ib ility of e ccramnnder being held

responsible fo r offences on th e grounds th a t he ought to have provided
ag ain st them before th e ir commission is not ru led out.
The Judge Advocate in the T ria l of Eauor and Others (see page 191)>
however, sta te d th a t the words, contained in the charge against Rauer,
"concerned in the k illin g " were a d ire c t a lle g a tio n th a t he e ith e r
in s tig a te d nnurdor or condoned i t . The chcrge did not envisage negligence.
6. The enactments and cases which r e la te mainly or e n tire ly to
substantive law show th e came divergence in the m atter of th e extent to
which th e commander can be held lia b le . Two questions await an answer:
( i) how f a r can a commander be hold lia b le fo r not tak in g steps
before th e committing of offences, to prevent th e ir possible
perpetration?
(ii) how f a r must he be shown to have known of the committing of-
offences in order to be made lia b le fo r not intervening to
stop offences already being perpetrated?
Hie French enactment (see page 13) mentions only crimes "organized
or to le ra te d " , the Luxembourg provision only those "to lo reted " (see pege I 83)
and the Netherlands enactment only those "d elib erately perm itted"
(soc page I 83) , The accused Milch (see pages 206- 8) was held not
g u ilty of being im plicated in the conducting of ille g a l experiments
because the Tribunal was not s a tis f ie d th a t he know of th e ir ille g a l
nature; no duty to fin d out whether they had such a nature is mentioned.
While the Chinese onectment (see page I 83) does not define the extent
of commanders' "duty to prevent crimes from being committed by th e ir
subordinates", the Tribunal which tr i e d Takashi Sakai (see pages 208-9)
was c arefu l to point out th a t the accused must have known of the offence
proved to have been committed by h is subordinates.
On the other hand, the Supremo Court of the United S tates
(soe pagos 201-4) . held th a t General Yamashita had a duty to "take such
measures as were w ithin h is power and appropriate in the circumstances
to p ro te c t prisoners of war end the c iv ilia n population", th a t is to say
to prevent offences against them from being ccnsnittod. The use of the
terms "appropriate in the circumstances" serves ta underline the remark
made previously, namely, th a t a great d is c re tio n is l e f t to the Court
to decide exactly where the re s p o n s ib ility of the commander s h a ll cease,
since no in te rn a tio n a l agreement or usage lays down what these measures a re .
The commission vhich tr io d Yamashita soomed to assume th a t he had had
0 duty to "discover and control" tho acts of h is subordinates, and the
majority Judgment of tho Supreme Court would appear to havo l e f t open
/th e p o s s ib ility
e / cn.^A m 9
Page 212

th e p o s s ib ility th a t, in c e rta in circum stances, such a duty could exist.

In d isse n tin g , Hr. Ju stic e Murphy expressed the opinion th a t: "Had there
been seme element of knowledge or d ire c t connection w ith th e a tro c itie s the
problem would be e n tire ly d iffe re n t" .
Hie Judge Advocate in th e T rie l of General Seeger (see page 197) also
made i t c le a r th a t a commander could be held to have occupied a m ilitary
p o sitio n which required him to take c e rta in measures, th e f a ilu r e to take
which would amount to a war crime.
The Frosecution in i t s opening statem ent in the T ria l of Carl Krauch
and others (the I.G . Farben T rial*) seems to have followed the more
extreme doctrine in meking th e follcnring observation:
"Moreover, even where a defendant may claim la ck of actual
knowledge of c e rta in d e ta ils , th e re can be no doubt th a t he could
have found out had he, in the words of M ilitery Tribunal Ho. 1
made "the s lig h te s t in v e stig a tio n ". Each of the defendants, with
th e possible exception of the four who were not Vorstand members,
was in such a p o sitio n th a t he e ith e r knew what Farben was doing
a t Leuna, B itte r f e ld , B e rlin , Auschwitz, and elsewhere, o r, i f
he had no a c tu a l knowledge of some p a rtic u la r a c tiv ity , again in
th e words o f M ilita ry Tribunal No. 1, "occupying th e p o sitio n
th a t he did, th e duty re s te d upon him to make come adequate
In v e stig a tio n " .** One cannot accept th e prerogatives of authority
w ithout shouldering re s p o n s ib ility ."
2. Other Degrees of L ia b ility
I t would not be e n tire ly irre le v a n t to include a t th is point some
in v e stig a tio n of the various ways in which alleged war crim inals may be
found g u ilty of offences which c o n stitu te v io la tio n s of human rig h ts .
Such l i a b i l i t y may atta ch to various other categories of persons apart
from the person who a ctu elly shoots the prisoner of war or s trik e s a
concentration camp inmate. The following paragraphs s e t out some of
th e categ o ries whose le g a l sta tu s w ill be in v estig ated here.
( i) Persons who Keep Match While a Crime i s Committed
T ria ls which are re le v an t in th is connection a re : the t r i a l of
Karl Adam Golkel and th ir te e n o th ers, before a B ritis h M ilitary Court at
Wuppertal, from 15 to 21 May 19k6; and the t r i a l of VJerner Rohde
and eig h t o th ers, before a B ritis h M ilita ry Tribunal a t Wuppertal, from
29 May to 1 June 1 9 ^ .

* Not y et completed.
** I t a l i c s in se rte d .
/ i n both
 e /CN.U/w.19
Page 213

In both of those t r i a l s , the- offences alleged and proved was the

I lle g a l k illin g of a prisoner of war, but the various accused were not
a l l im plicated in th e same way. For instance, sane of them-were shown
to have stood by while prisoners wero shot or in je c ted with a le th a l
drug. The Judge Advocate acting in th e second of th e t r i a l s , in
dealing w ith the moaning of the term "concerned in th e k illin g " , which
appeared in the charge, explained th a t to be concerned in a k illin g
i t was not necessary th a t a person should a c tu a lly have been p resent.
Hone of the accused was a ctu c lly charged w ith k illin g any of the
victim s concerned. I f two or more men se t out on a murder and one
stood h a lf a mile eway from where the actu al murder was committed,
perhaps to keep guard, although he was not a c tu a lly present when the
murder was done, i f he was taking p art with the other man w ith the
knowledge th a t th a t other man was going to put the k illin g in to
e ffe c t, then he was Ju st as g u ilty as the person who fir e d the shot
or delivered the blow.
( i i ) Persons who Pass on Orders from Above
There have also been cases in which an accused has been found
g u ilty of offences although he was only im plicated in the crime in so far
as he passed on to h is subordinates orders fo r i t s p-erpetration which
he had received from h i 6 su p erio rs.
( i i i ) Persons who P o rtic lra te in lynching
There have also been cases in which various accused have contributed
to th e k illin g of a victim w ithout i t being c le a r which one a ctu a lly
delivered th e f a t a l shot or blow. Thus, th e Essen lynching Case, ( t r i a l
of E rich Heyer and s ix others before a B ritis h M ilitary Court fo r the t r i a l
of Wer Criminals a t Essen from 18 - 22 December 19^5) involved n eg lect,
of a llie d prisoners of war on the p a rt of a German p riv ate who had the
duty to a c t a 6 th e i r e sc o rt, and lynching on th e p e rt of German c iv ilia n s
who took p a rt in th e ir k illin g . I t was shown th a t as the prisoners of
war were marched through one of the main s tr e e ts of Essen, th e crowd
round them grew bigger and s ta rte d h ittin g them and throwing stones and
sticks a t them. When they reached th e bridge, th e captives were eventually
thrown over the parapet. One was k ille d by th e f e l l , others were k ille d
by shots from th e bridge and by members of th e crowd who b eat and kicked
them to death.
I t was th e submission of th e prosecution th a t every person who,
following the incitem ent to the crowd to murder these men, (given by
Captain Beyer, another of th e accused who was found g u ilty * ), v o lu n ta rily
took aggressive actio n against any one of the th re e airmen, was g u ilty

* See pege 2l 6.
/ i n th a t
e / cn.UAm 9
Page 2lh '

in th a t ho was concerned in the k illin g . I t was Impossible to separate

any one of those acts from another; they a l l made up what is known as
lynching. From tho moment they l e f t those b arracks, the men were doomed
and the crowd knew they were doomed and every person in th a t crowd who
struck a blow was both m orally and crim inally responsible fo r th e deaths
of th e throe men.
The m ilita ry esco rt was sentenced to imprisonment fo r fiv e years for
re fra in in c from in te rfe rin g to p ro tect th e captives under h is charge.
Three of the c iv ilia n s accused in the t r i a l were sentenced to death by
hanging and sentences of imprisonment fo r l i f e and fo r te n y ears; they
were found g u ilty because each one of them had, in one form or another,
taken p a rt in th e ill-tre a tm e n t which eventually le d to the deaths of the
victim s, although again st none of th ese accused had i t been exactly proved
th a t he had in d iv id u a lly shot or given blows which caused th e deaths.
In th e t r i e l of Hans Renoth and th ree others bofore a B ritis h
M ilita ry Court a t E lten from 8 to 10 January 19^6, Hans Renoth,
Hans Pelgrim, F rie d ric h Wilhem Grabowski and Paul Herman Nieke, a t
th e time of th e alleged offence, two policemen and two customs o ffic ia ls
re sp e c tiv e ly , were accused of committing a war crime, "in th a t they at
E lten , Germany, on 16 September 19M-, in v io la tio n of th e laws and
usages of war, were concerned in th e k illin g of an unknown A llied airman,
a p risoner of war". A ll pleaded not g u ilty .
I t was alleged th a t a B ritis h p ilo t crashed on German s o il, and
a f te r emerging from h is machine unhurt was a rre ste d by Renoth, then
attacked and beaten w ith f i s t s and r i f l e s by a number of people including
th e other th re e accused. Renoth stood aside fo r a while then shot the
p ilo t.
A ll the accused were found g u ilty . Ronoth was sentenced to death
by hanging, and Pelgrim, Grabowski and Nieke to imprisonment fo r fifteen ,
te n and te n years re sp e c tiv e ly . The sentences were confirmed and put
in to e ffe c t.
Here, as in the Essen lynching Case, several persons whr contributed
to the deaths of a prisoner of war were a l l held responsible fo r his
murder, though not punished a lik e .
(iv) In s tig a to rs
Short of a ctu a lly ordering offences, an accused may be found guilty
because of h is having, in some way, in s tig a te d i t s p e rp e tra tio n . Thus,
in th e Essen lynching Case, re fe rre d to abpve, th e prosecution alleged
th a t Heyer had given to th e e sc o rt in stru c tio n s t h a t they should take
the, prisoners to th e nearest Luftwaffe u n it f o r in te rro g a tio n . I t was
/subm itted
 E/CN.1|./W.19
Page 215

submitted by the Prosecution th a t th is order, thoxigh on the face of I t

c o rre c t, was given out to the esco rt from th e steps of the barracks In
a loud voice bo th a t the crowd, which had gathored, could hear and would
know exactly what was going to take placo. I t was elleged th a t he had
ordered th e e sc o rt not to in te rfe re in any way w ith th e crowd i f they
should molest the p riso n ers.
Hauptmann Heyer adm ittedly never struck any physical blow against
the airmen a t a l l . His p a rt in th is a f f a ir was an e n tire ly verbal one;
in the submission of the Prosecution th is was one of those cases of words
th a t k i l l , and he was as respo n sib le, i f not more resp o n sib le, fo r the
deaths of the throo men as any one e lse concerned.
The Prosecutor expressly s ta te d th a t he was not suggesting th a t
tho more fa c t of passing on th e se c re t order to th e esco rt th a t they
should not in te rfe re to pro tect the prisoners against the crowd was
s u ffic ie n tly proximato to the k illin g , so th a t on th a t alone Hoyer was
concerned in the k illin g . Tho Prosecutor advisod th e Court th a t, i f i t
was not s a tis f ie d boyond reasonable doubt th a t he had in c ite d th e crowd
to lynch thoso airmen, ho was then e n title d to a c q u itta l, but i f th e Court
was s a tis f ie d th a t he did in fa c t say theso people were to be shot, and
did in fa c t in c ito th e crowd to k i l l tho airmen, then, in th e submission
of tho Prosecution, ho wa3 g u ilty .
Tlio Prosecution refo rro d to tho ru lo of B ritis h law in which an
in s tig a to r may be roGordod as a p rin c ip a l. Tho same hold good in th is
case i f a man in c ite d scmcone e lse to commit a crime and th a t crime was
committed. Although tho person who in c ite d was not present when the
crimo was committed, he was tr ia b le and punishoblo as a p rin c ip a l and i t
made no differen ce in th is respect whether tho t r i a l took placu under
B ritis h law or undor tho Regulations fo r tho t r i a l of war crim inals.
The Court sentenced Hoyer to death by hanging.
(v) Common D sira and the General P rin cip les of L ia b ility
The paragraphs sot out above arc not intended to exhaust a l l aspects
of com plicity in war crimes. For in stan ce, i t has not boon p o ssib le, due
to shortago of time to d eal w ith the many in te re s tin g d iscu ssio n s, which
have taken place during various t r i a l s , on the question of the l i a b i l i t y
of persons who commit crimes while acting in pursuance of A common plan
or design. (Seo fo r instance tho Bolsen T ria l, (seo page 1^6); the T ria l
of M artin G oltfriod Weiss and forty-ono others before a M ilita ry Government
Court a t Dachau, Germany, from 15 Novcmbor to I 3 December 19^5 (the Dachau
T ria l), and the T ria l of Hons A ltfu ld isch and six ty others before a
M ilitary Government Court a t Dachau, Germany, from 29 March to 11 May 19^6,
(tho Mauthausen T r ia l) ) .
/F u rth er,
E/CN.lfA.19
Page 2l6

F urther, the general p rin c ip le s governing th e l i a h i l i t y of accessories

and of aiders and ab etto rs have o ften been discussed during t r i a l s . (See
fo r Instance the T ria l of Fran?. Shonfeld and nine others before a B ritish
M ilita ry Court, Essen, from 11 to 26 June 1946.)
(vi) Persons G uilty of Attempted Crime
Some recognition has been given to the p o s s ib ility th a t a person may
be g u ilty of a war crime even, though he merely attempted to commit an
offence and the offence was never completed. Thus, A rtic le 4 of the
Norwegian Law of 13 December 1946, on th e punishment of fo reig n war
crim inals, provides th a t:
"!I3ie attempted commission of any crime re fe rre d to in A rticle No.l
of the present law is subject to th e same punishment as an accomplished
a c t. Complicity is likew ise punishable."
Again, Article 13(1) of a Yugoslav Law of 25 August I945, which
provides for the trial of war criminals and traitors, lays down that:
"An attempt to commit a c ts o u tlin ed in th is Law s h a ll be
punishable as a complete crim inal a c t."
Under the Dutch Extraordinary Penal Law Decree of 22 December 1943,
(S tatu te Book D. 6l ) , an attempt to commit a war crime is equally
punishable w ith the crime i t s e l f .
Regarding the degrees of im plication in war crimes, B rigadier General
Telford Taylor, in h is address to th e F if th In te rn a tio n a l Criminal Law
Congress, said:
"Now th is concept of conspiracy, a t bottom, is merely one
m anifestation of a problem which is basic in a l l systems of penal
lawj what degree of connection w ith a crime must be estab lish ed in
order to a ttr ib u te , to a defendant, J u d ic ia l g u ilt? Other
m anifestations of t h i s same question are th e do ctrin es of principals,
a ccesso ries, end accomplices, and of attem pts.
In te rn a tio n a l penal law w ith resp ect to th is question is most
u n s e ttle d . Take, fo r example, th e doctrine of attem pts. Neither
The Hague and Geneva Conventions, nor the London C harter, nor
Law No, 10 mention attem pts. Does i t follow th a t an attempt to
commit an in te rn a tio n a l crime is not i t s e l f a crime? I should not
th in k so. Let us assume th a t a so ld ie r i s about to shoot an unarmed
and innocent prisoner of war, but i s him self captured w ith h is
p is to l poised J u st in time to prevent th e shooting. I believe that,
under in te r n a l or in te rn a tio n a l penal law, he could be rig h tly
accused of the attempted murder of a p riso n er of w ar."
/3 . Superior
 E/CN.I+/w.19
Pae 217

3. SurerJor Orders, Duress and Coercion

(i) Introductory Remarks
The plea of superior orders has heen ra ise d by th e Defence In war
crime t r i a l s more frequently than any o th e r. The most common form of
the plea c o n sists in the argument th a t th e accused vas ordered to commit
th e offence "by a m ilita ry superior and th a t under m ilita ry d is c ip lin e
orders must "be obeyed. A clo sely re la te d argument 1b th a t vhich claims
th a t had the accused not obeyed he would have been shot or otherwise
punished; i t is sometimes also maintained in court th a t re p ris a ls would
have been taken against h is fam ily. I t has to be admitted th a t a serious
c o n flic t must in ev itab ly e x is t in the mind of a so ld ie r in p a rtic u la r
when faced w ith th e ' choice between the p ro b a b ility of immediate punishment
fo r insubordination and th e p o s s ib ility of u ltim ate punishment as a war
crim inal should h i6 country be defeated. N evertheless, th e rig h ts of the
unfortunate victim of the crime must equally be kept in mind.
This sectio n on superior o rd ers, duress and coercion is arranged on
the follow ing lin e s :
F i r s t , c e rta in re le v an t municipal enactments are quoted. Next,
various a u th o ritie s which have been c ite d in t r i a l s other than te x ts
having binding le g a l force are s e t out end discussed. T hirdly, the
t r i a l of Peer Admiral Nisuke liasuda and four others receiv es sp cial
a tte n tio n in view of i t s p a rtic u la r In te re s t in th is connection.
Under a fo u rth heading a number of other t r i a l s are quoted in order
to demonstrate the extent to vhich th e plea of superior orders has
been successfu lly put forward in war crime t r i a l s . .F in a lly , in a
conclusion, th e inform ation 6e t out in t h i 6 sec tio n i s c la s s ifie d , and
a passage from th e work of a French le g a l au th o rity , Professor de
J u g lo rt, is quoted as s e ttin g out what has in fa c t been th e a ttitu d e
generally t alten in war crime courts towards the p lea.
(ii) Municipal Enactments
Municipal enactments regarding th e punishment of war crimes have
shown a great reluctance to regard th e plea of superior ord>re as a
complete defence, end have p referred to admit th a t the fa c t th a t a war
crime was committed under orders may c o n stitu te a m itig atin g circumstance
and to leave to the court the power to consider each case on i t s m erits.
Thus th e United S tates M editerranean Regulations* provide in
Regulation 9'

* See page 157

/"The fa c t
 E/OT.UAM9
Page 218

"The fa c t th a t an accused acted pursuant to order of his

Government or of a superio s h a ll not fre e him from re s p o n sib ility ,
but may be considered In m itig atio n of punishment i f the commission
determines th a t Ju stic e so re q u ire s."
The corresponding provisions o f Regulation 16(f) o f the P acific
Regulations of September 19^5, of Regulation 5(d) (6) of the P acific
Regulations of December 19^5, of Regulation 16(f) o f th e China Regulations
provide as follows:
"The o f f i c i a l p o sitio n of the accused s h a ll not absolve him from
re s p o n s ib ility , nor be considered in m itig atio n f punishment. Further,
a ctio n pursuant to order of the accused's su p erio r, or of his
government, s h a ll not c o n stitu te a defence, but may be considered in
m itig atio n o f punishment i f the commission determines th a t Ju stice
so re q u ire s."
S im ilarly A rtic le 5 o f the Norwegian law o f 13 December 19t, on the
Punishment o f Foreign War Criminals provides th a t:
"N ecessity and superior order cannot be pleaded in exculpation of
any crime re fe rre d to ln I 1 o f th e present law. The court may,
however, take the circumstances in to account and may Impose a sentence
le s s than the minimum la id down fo r the crime in question or may impose
a m ilder form of punishment. In p a rtic u la rly extenuating
circumstances the punishment may be e n tire ly rem itted ."
Other provisions of a lik e nature are th e following:
"The fa c t th a t an accused acted pursuant to the order of a
superior or of h is government s h a ll not c o n stitu te an absolute defence
to any charge under these R egulations; i t may, however, be considered
e ith e r as a defence o r in m itig atio n of punishment i f the m ilita ry
court before which the charge is tr ie d determines th a t Ju stic e so
re q u ire s." (A rticle 15 of the Canadian War CrimeB Act of 31 August 19h6). ^
"The fa c t th a t the crim inal deed was performed by a person acting
under orders or in a subordinate capacity does not exempt the criminal
from re s p o n s ib ility , but may be taken in to consideration as an extenuating
circumstance, and in s p e c ia lly extenuating circumstances the punishment
may be waived a lto g e th e r," (A rticle h o f the Danish Act on the
Punishment of War Crimes o f 12 Ju ly 19h6).
"In th e case o f t r i a l s in s titu te d under the provisio: s of A rticle 2
of the present law, the fa c t th a t th e accused acted in accordance
w ith the provisions o f enemy laws or re g u la tio n s, or a t th e orders of
a superior o ffic e r cannot be regarded as a reason fo r J u s tific a tio n ,
w ithin the meaning of A rtic le 70 o f th e Criminal Code, when the act
committed c o n stitu ted a fla g ra n t v io la tio n of the laws and customs of
war, or the laws of humanity. The plea may be taken in to consideration
as an extenuating circum stance." (A rticle 3 of the Belgian Law of
20 June 19^7, re la tin g to the Competence of M ilita ry Tribunals in the
M atter of War Crimes).

* See page 157 e t seq.

 E/CN.4/w .19
Page 219

"Laws decrees or re g u la tio n Issued by th e enemy a u th o ritie s ,

orders or p e m its issued by these a u th o ritie s , or by a u th o ritie s which
are or have been subordinated to them, cannot be pleaded as
J u s tif ic a tio n w ithin the meaning of A rtic le 32? of the Code Penal,*
but cen only, in su ita b le cases, be admitted as extenuating or
exculpating circum stances." (A rticle 3 of the French Ordinance
of 28 August 1944, Concerning the Prosecution of War Crim inals).
So a lso Law No. 10 of the A llied Control Council (see pages 134-5)
provides in paragraph 4(b) of i t s A rtic le I I th a t: "The f a c t th a t any
person acted pursuant to th e order of h is government or of a superior
does not fre e him from re s p o n s ib ility fo r a crime but may be considered
in m itig a tio n erf punishment".
A rtic le 5 of th e P o lish Law, promulgated on 11 December 1946,
concerning th e punishment of war crim inals and t r a i t o r s , provides th a t:
"A rtic le 5. Paragraph 1
The fa c t th a t an a ct or emission was caused by a th r e a t, order or
command does not exempt from crim inal re s p o n s ib ility .
Paragraph 2
In such a case the Court may m itig ate th e sentence tak in g in to
consideration the circumstances of th e p erp etrato r and the deed."
A rtic le V III (in paragraphs 1-2) of the Chinese Law of
24 October 1946, simply provides th a t:
I
"nie follow ing circumstance under which offences have been
committed s h a ll not exonerate war crim inals:
1. The fa c t th a t crimes were crcmmitted by order of Superior
O fficers.
2. The f a c t th a t crimes were committed as re s u lt of o f f ic ia l
duty."
So also A rtic le 4 of the Luxembourg War Crimes Law of 2 August 1947
provides, in te r a lia , th a t orders or permission given by the enemy au th o rity
or by a u th o ritie s depending on the l a t t e r s h a ll not be regarded as
Ju stify in g circumstances w ithin the meaning of A rticle 70 oi the Luxembourg
Code Pnal.
Again, A rtic le 13(3) of the Czechoslovak Law No. 22 of 24 January 1946,
provides th a t:
"(3) The i r r e s i s t i b l e compulsion of an order from his superior does
no t re le a se any person from Guilt who v o lu n ta rily became a member of
an organization whose members undertook to carry out a l l , even
crim inal orders."

* See page 235

/No sp ecial
E/CN.4/W.19
Page 220

No sp ecial provision re la tin g to th e plea of superior orders has been

nade in the Netherlands War Crimes Law of Ju ly 19^7 (S tatu te Book H. 233),
since th e e x istin g provisions of the Netherlands Penal Code concerning
superior orders ore deemed s u ffic ie n t. A rtic le 43 of th a t Code states
th a t:
"Not punishable is he who commits an act in the execution of an
o f f ic ia l order given him by the competent a u th o rity .
"An o f f ic ia l order given w ithout competence th e re to does not
remove the l i a b i l i t y to punishment unless i t was regarded by the
subordinate in a l l good f a i t h as having "been given competently and
obeying i t came w ith in h is province as a subordinate
The a u th o rity giving th e order is not considered to be competent to
give orders to commit a crime.
( i i i ) A uthorities Other Than Legally Binding Enactments
(a) The B ritis h Noyai Warrant contains no provisions regarding the
a d m issib ility of th e defence of Superior Orders, and th e re has been
considerable discussion during t r i a l s before B ritis h M ilita ry Courts
of the a d m issib ility of th is plea.
Chapter XIV of the B ritis h Manual of M ilita ry Law has o ften been
quoted by Counsel as a u th o rity on th is p o in t. I t must he sta te d a t the
o u tset th a t Chapter XIV (The Laws and Usages of War on Land) of the
( B ritis h Manual cf M ilitary Law is intended only as a guide fo r the use of
th e m ilita ry fo rc e s. I t has not th erefo re th e a u th o rity as a statement
of In te rn a tio n a l Laiw which attaches to an in te rn a tio n a l tr e a ty . Such
p u b lic a tio n s, prepared fo r th e b e n efit of th e armed forces of various
n a tio n s, are freq u en tly used in argument in the same way as other
in te rp re ta tio n s of In te rn a tio n a l Law, and, in so f a r as th e ir provisions
are acted u~pon. they mould s ta te p ra c tic e , which is i t s e l f a source of
In te rn a tio n a l Law, The B ritis h Manual of M ilita ry Law is not a
le g is la tiv e instrum ent; i t is not a source of law lik e a s ta tu to ry or
prerogative order or a decision of a co u rt, hut is only a publication
s e ttin g out th e law. I t has, th e re fo re , i t s e l f no formal Mnding power,
b u t has to be e ith e r accepted or re je c te d on i t s m e rits, I . e . according
t o whether or not in th e opinion of th e Court i t s ta te s th e law correctly.
U n til A p ril 19^4, Chapter XIV of th e B ritis h Manual of M ilitary lav
contained th e much discussed statement (Paragraph 433) th a t "members
o f th e armed forces who commit such v io la tio n s of the recognized rules of
w arfare as a re ordered by th e ir Government, or by th e ir commander, are not
war crim inals and cannot th e re fo re be punished by th e enemy. He may
punish th e o f f i c i a l s or commanders responsible fo r such orders i f they
/ f a l l into
 E/Cl.VW.19
Pese 221

f a l l In to h:'.r hands, "but otherwise ho may only re s o rt to other neons

of obtaining r e d r e s s ..."
Tills statorient was based on th e F if th e d itio n of Oppenheim13
In tern a t ! e r t1 Law, Volume I I , pege kob. Considerable doubts were cast
on the correctness of th is statement by most w rite rs upon the subject
end i t vos replaced in the Sixth e d itio n of Oppenheim by i t s Teamed
e d ito r, Professor Lauterpecht, by a statement to the e ffe c t th at^th e
fa c t th a t a ru le of wnrfero has been violabcd in pursuance of an order
cf a b e llig e re n t government or of an in d iv id u al b e llig e re n t cengender
does not deprive th e a c t in question of i t a character as a war crime.
The fa lla c y of the opinxon expressed in th e pre-lM* te x t
(Paragraph V.'3 of Chapter XIV) of the B ritis h Manual and th e corresponding
ru le of th e United S tates Buies of Land Warfare (Paragraph 3^7 of the 19^0
te x t) ,* vas demonstrated in an a r tic le by Professor Alexander N. Sack
in t h e 'Law Q uarterly Pevlew (Volume 60, January 1pMh, page 63). The
relevance of the plea of superior orders became also th e subject of
research and c r i t i c a l examination by o f f ic ia l end sem i-o ffic ia l
in te rn a tio n a l bodies which d e a lt with problems of war crimes during
the second world war (United Nations War Crimes Commission; London
In te rn a tio n a l Assembly, e t c . ) .
In A pril 19Ms th e B ritis h Manual was a lte re d , the sentences Ju st
quoted being replacod by the follow ing statem ent of th e low:
"The f a c t th a t a ru le of w arfare ha6 been v io la te d in
pursuance of an order of th e b e llig e re n t Government or of an
in d iv id u al b e llig e re n t commander does not deprive th e act in
question of i t s character as a war crime; n e ith e r does i t , in
p rin c ip le , confer upon th e p e rp e tra to r immunity from punishment
by th e in ju red b e llig e re n t. Undoubtedly, a court confronted
w ith th e plea of superior orders adduced in J u s tif ic a tio n of a
v a r crime i s hound to tone in to consideration th e f a c t th a t
obodience to m ilita ry orders, not obviously unlawful, is th e duty
of every member of the armed forces and th a t th e l a t t e r cannot,
in conditions of war d is c ip lin e , he expected to weigh scrupulously
th e le g a l m erits of the order received. The question, however,
i s governed by th e major p rin c ip le th a t members of the armed forces
are hound t o obey lew ful orders only and th a t they cannot th erefo re
escape l i a b i l i t y i f , in obedience to a command, they cernait acts which
both v io la te unchallenged ru le s of w arfare end outrage the general
sentiment o f humanity."

* See page 22k

/A sim ilar
E/C3.H/\M 9
Page 222

A s im ila r though not id e n tic a l a l t e r a t i o n of th e American F ie ld

Manual has been brought about by Change o, 1 t o th e Puj.es o f Land
Warf a r c d a ted 15 November 1944,*
I n th e course of th e F e l iu. i T r i a l , ** an o b je c tio n vas r a is e d to the
a p p lic a tio n o f th e law as s ta te d in th e amendment t o th e B r i t i s h Manual
o f Mil i t ary Jaw and, by way o f analogy, th e d e c is io n o f th e B r i t i s h Privy
C ouncil in th e Zamora case was invoked, where i t had been s ta te d th a t a
B r itis h P riz e Court ad m in isters I n te r n a tio n a l law and no t M unicipal haw
and t h a t although i t may be bound by a c ts of th e l e g i s l a t u r e , i t i s not
bound by ex ecu tiv e o rd e rs o f th e King i n C o u n cil. I f t h a t be s c , th en
i t was s a id , a f o r t i o r i , th e Court i s not. bound by an amendment published
by th e War O ffic e ,
T his o b je c tio n was n o t r e f e r r e d t o by th e Judge Advocate in h is
summing up, b u t i t was im plied in h is d ir e c tio n to th e Court th a t the
p le a of S u p erio r Orders was n o t w e ll founded.
The Judge Advocate accep ted th e law as s ta te d in th e 1944 amendment
t o th e B r itis h Manual, and advised th e Court a cc o rd in g ly .
Counsel f o r th e D efence, asked by th e Judge Advocate w hether he
challenged th e accuracy o f th e statem en t t h a t th e q u e stio n was governed
by th e m ajor p rin c ip le t h a t members o f armed fo rc e s are bound t o obey
la w fu l o rd e rs c n ly , s ta te d t h a t he was n o t p rep ared to ch allen g e t h a t .
The Court r e je c te d th e p lea o f s u p e rio r o rd e rs .
A f u r th e r d is c u s s io n o f th e q u e stio n a ro se d u rin g th e BoJg-on T r i a l .***
C olonel Sm ith, i n d e liv e rin g a c lo sin g argument i n defence o f th e accused'*
as a w hole, subm itted t h a t th e o r ig in a l t e x t o f Paragraph 443 was
c o rre c t In .la w and t h a t th e amended v e rs io n was in c o rre c t and ho repeated
t h a t th e c o u rt was i t s own judge o f law and was n o t bound t o ta k e i t frem
th e V er O ffic e , th e P riv y C ouncil o r any o th e r a u th o rity .* * * * The o rig in al
t e x t was i n accordance w ith th e o rd in a ry experience o f th e n e c e s s itie s of
m i l i t a r y d is c ip lin e and was, m oreover, i n p re c is e agreement w ith th e American
M anual,***** I t would s u re ly be most u n fo rtu n a te i f th e Court were to

* See page 224.

** See law K eports o f T r ia ls o f War C rim in a ls, p u b lish ed by His Majesty'
__ S ta tio n e ry O ffice t o r th e U nited N ations War Crimes Commission,
Volume I , pages 1 -2 1 ,
*** See Volume I I o f th e same s e r i e s , ( a t p re s e n t b ein g p rin te d ) especiall
pages 69-78 and 104-110.
**** Like th e Defence in th e P e leus Tr i a l , C olonel Smith a ls o quoted the
Zamora Case and p o in te d to ' th e p a r a l l e l between a war crimes court
er<T a p riz e c o u rt, in arguing t h a t th e Manual was n o t binding on the
C o u rt,
U tl U I M )
Which was th e n unamended; see page 224.
/condemn people,
 e / cn.4 / w.19
Pace 223

condemn people, in cases whore th e defence of superior orders was pleaded,

by v irtu e of an amendment to th e B ritis h Manual, th e te x t of which was a t
variance w ith the .American and other o f f ic ia l manuals, as a r e s u lt of a
chance in tr educed in A p ril 1944, whereas th e dates in th e Charge Cheat
began in October 19^2.
Replying to Colonel Smiths arguments, th e Prosecutor in th e
Belsen T ria l claimed th a t th e amendment to th e Manual was made to bring
i t in lin e w ith almost every w rite r on the su b ject, including
Professor Lauterpacht and Professor B rie rly . I t was in fa c t me.de in
consu ltatio n w ith th e American Judge Advocate General, and i t was in
lin e w ith American la v as s e t fo rth in America, as opposed to the
Amorlean Manual, which had not y et been emended,
The Prosecutor could have added th a t, i f a statement contained
in th e Manual was, as i s s ta te d in th e footnote to th e B ritis h Amendment
No. 34, "in co n sisten t w ith th e view of most w rite rs upon th e subject and
also w ith the decision of th e German Supremo Court in th e cese of the
Llandovery C astle", th e re was no o b stacle, c o n stitu tio n a l, le g a l or
otherw ise, to co rrectin g the mistake in th e statem ent of law on the
one hand, end to proceeding in the fu tu re on th e b a sis of th e law, as i t
had thus been elu cid ated .
A second a u th o rity on which great re lia n c e has been placed by counsel,
and which has been quoted as s ta tin g co rrect law by Judge Advocates in
B ritis h T rials* has been th e celebrated work, In te rn a tio n a l Law
(Oppenheim-Lauterpacht), of which Volume I I , (Sixth E dition) contains on
pages 1*53-5 a passage which is id e n tia l w ith the amended version of
Paragraph 443.**
The Judge'Advocate acting in the T ria l of Karl Buck and ten others
by a B ritis h M ilita ry Court a t Wuppertal, Germany, 6 - 1 0 Mey 191+6, a fte r
quoting th is passage, added th a t an accused would be g u ilty i f he committed
a war crime in pursuance of an order, f i r s t i f the order was obviously
unlaw ful, secondly i f the accused knew th a t the order was unlawful, or
th ir d ly i f he ought to have known i t to be unlawful had he considered
the circum stances in which i t was given.
(c) Despito the fa c t th a t most of th e reg u latio n s governing t r i a l s
by United S tates M ilitary Commissions have included provisions defining
the a p p lic a b ility of th e p lea of Superior Crders, reference has o ften been

* For instance th e Judge Advocate in the Belsen T ria l advised the court
to follow th e law la id down in th is te x t on the question of
Superior Orders.
** Page 454 of tills work s e ts out the lite r a tu r e on th e su b ject.
/made during
E /C N .10M 9
Pa^e 22k

made luring t r i a l s "before such Commissions, to the United S tates Basic

F ie ld Manual F.M. 27-10 {Bulen cf Land W arfare) which is sim ilar in scope
and purpose to the B ritis h Manual of M ilitary Law
U n til 15 November 19kh, Paragraph 3Vf of th e United S ta te s Basic
F ie ld Manual provided th a t 1. .iv i duals of th e Armed Forces would not be
punislied fo r war crimes i f they were committed under th e ordors or
sanction of th e ir governments or commanders. The commanders ordering
tJie commission of such a c ts , or under whose a u th o rity they were committed
by th e ir tro o p s, might be punished by th e b e llig e re n t in to whose hands
they f e l l . I t w ill be appreciated th a t th is prevision of Paragraph 3^7
cf the American Buies of Land Warfare corresponds ex actly to the original
t e s t of Paragraph kk3 of Chapter XIV of the B ritis h Manual of M ilitary la.
By Change Ho. 1 to th e Buies of land Warfare dated I 5 November 1$M,
th e sentences quoted above from Paragraph 3^7 of th e Buies of lan d Warfare
have been em itted and the follow ing provisions have been added to
Paragraph 3^5!
"Individuals and organizations who v io la te th e accepted laws
end customs of war may be punished th e re fo r. However, the fa c t
th a t the acts compleined of were done pursuant to order of a
superior or government sanction may be taken in to consideration
in determining c u lp a b ility , e ith e r by way of defence or in
m itig a tio n of punishment. The person giving such orders may also
be punished."
I t w ill be seen th a t the statem ent of the lew contained in the new
te x t of th e American Basic F ie ld Manual d iff e r s somewhat from th e l^M
te x t of the B ritis h Manual. though both abandon th e sweeping statements
contained in the former te x t regarding th e plea of superior orders. Hie
new B ritis h te x t appears to exclude an unlawful order as a defence, and i t '
is in te re s tin g to compare both w ith A rtic le 8 of th e C harter of the
In te rn a tio n a l M ilita ry Tribunal of 8 August 19k-5, under which superior
ordors were not to fre e a defendant from re s p o n s ib ility , but might be
considered in m itig atio p of punishment.
The stetoment contained in th e new te x t of Paregraph 3^5 of the
American Basic F ie ld Manual makes i t possible to consider superior orders
or Government sanction in determining c u lp a b ility , e ith e r by way of defence
or in m itig a tio n of punishment.
The provisions of th e F ie ld Manual on th is point were quoted for
instance by the Defence in the T ria l cf General Anton D o stler, by a
United S tates M ilitary Commission in Borne (8 - 12 October 19^5)J* although

* Law Reports of T ria ls of War Crim inals, Volume I , pages 22-3h,

/th is tr ia l
 E/CN.10M9
Page 225

th is t r i a l was hold under the Regulations fo r th e T ria l of War Crimes

issued fo r the Mediterranean Theatre of Operations on 23 September 19^5,
(coo page 217), the provisions contained th e re in re la tin g to the
defence of superior orders were not re fe rre d to .
(d) Sheldon Glueck, on pages 118-9 h is a u th o rita tiv e work, War
Crimina ls ., bh o lr Prosecution and Punishment, also provides seme guidance
in the m atter, Glxieck, seeking to reco n cile the dilemma in which a
subordinate is placed by an order m anifestly unlawful, compliance w ith
which may la t e r subject him to t r i a l fo r a war crime, and re fu s a l to
comply w ith which may immediate."'y subject him to a d is c ip lin a ry a ctio n ,
perhaps death, suggests th a t the follow ing ru le be applied: "An
unlawful act of a so ld ie r or o ffic e r in obedience to an order of h is
government or h is m ilita ry superior is not J u s tif ia b le i f when he
committed i t he a c tu a lly knew, o r, considering the circum stances, he had
reasonable grounds fo r knowing th a t th e a ct ordered is unlawful under
(a) the laws end customs of w arfare, or (b) the p rin c ip le s of crim inal
lav generally p rev ailin g in . iv iliz e d n atio n s, or (c) th e law of h is own
country. In applying th is ru le , whenever th e th re e leg al systems clash,
the l a s t s h a ll be subordinate."
(iv) The Masuda T ria l Examined
In te re s tin g m aterial re la tin g to the defence of superior orders is
to be derived from a study of th e Trial, of Rear-Admiral Nisnke Mesuda and
Four 0th o r3 of the Im perial Japanese Navy, before a United S tates M ilitary
Commission, United S ta te s Naval Air Base, Kwajalein Islan d , K v ajd ein
A to ll, M arshall Isla n d s, on 7 - 13 December 19^5.
Masuda, who committed suicide before th e t r i a l , had ordered th ree
subordinates in the Im perial Japanese Navy to shoot to death th re e United
S tates airmen, ylfao had become unarmed prisoners of war, and a fo u rth
subordinate, who had custody of the p riso n ers, to hand them to the th ree
executioners. These four were brought to t r i a l fo r the port which they
had played in the k illin g of th e airmen.
The accused pleaded not g u ilty . They odmittod th e ir p art in the
execution of th e American P risoners of War, but claimed as a defence
th a t, as m ilita ry men of the Japanese Empire, they were actin g under
orders of a superior a u th o rity , which they were bound to obey.
One of the defending Ce m o il, him self a Lieutenant-Casmandcr in the
Imperial Japanese Navy, described the absolute d isc ip lin e and obedience
which was expected from the Japanese fo rce s, and quoted an Im perial
R escript which included the words: "Subordinates should have th e idea
th a t th e orders from th e ir superiors are nothing but the ordors personally
/from His Majesty
E/CN.U/W.19
Page 226

from His Majesty tho Emperor." The.Japanese forces were exceptional

among the w orld's armed fo rces in th is resp ect and, th e re fo re , he claimed,
i t was impossible to apply th e re in "the lib e r a l and in d iv id u a lis tic
ideas which ru le usual so c ie tie s unmodified to th is t o t e l i e t i c and
a b so lu t!s tic m ilita ry so cie ty ." The s tra te g ic s itu a tio n was so
c r i t i c a l in e arly I 9W th a t the c h a ra c te ris tic re fe rre d to was displayed
in tho J o lu it u n it* to an e.. optional degree. Furthermore the order
was given d ire c t by a Bear-Admiral to "mere Warrant O fficers and Petty
O ffic e rs." I f they had refused to obey i t , "everyone would have fa lle n
upon them."
As th e accused had no crim inal in te n t, i t was c le a r th a t they had
committed no crime.
The other defending Counsel pointed out th a t th e executioners each
requestod th a t they, should not be assigned th e ta sk of carrying out the
k illin g , but when em phatically ordered by ffasuda, a man o f strong
c h arac te r, they hed obeyed, in accordance w ith th e ir tra in in g . Their
actio n s were not of th e i r own v o litio n ; they were the w ill of another.
Taoeki, th e custodian of th e prisoners of war, who arranged th e ir
handing over to the executioners, a lso merely acted in accordance with the
orders of the Bear-Admiral. C ertainly th e l a t t e r had to ld him why he was
to surrender the p riso n ers, but th is fa c t in no way placed him in the
p o sitio n of a p a rtic ip a n t in the commission of a crime.
In presenting the case fo r th e Prosecution, one of the two1Judge
Advocates quoted th ree a u th o ritie s w ith the in te n tio n of securing the
re je c tio n by the Commission of th e plea of superior orders. The Judge
Advocate General, he sa id , 1 ^ made referen ce, in Court M artial Orders
212- 1919, to th e follow ing dictum in U.S. v. Carr (25 Fed. Cases 307):
"Soldier is bound to obey only the law ful orders of h is su p erio rs. If
he receives on order to do en unlawful a c t, he is bound n e ith e r by his
duty nor by h is oath to do i t . So f a r from such an order being a
ju s tif ic a tio n i t makes th e p arty giving th e order an accomplice in the
crim e."
In another case quoted by the Prosecution, involving th e k illin g
of a Uiccraguan c itiz e n by a member of the United S ta te s fo rc e s, the
Judge Advocate sta te d : "An order ille g a l in i t s e l f and not ju s tif ie d
by the ru le s and usages of war, o r in i t s substance c le a rly ille g a l, so

* The u n it under the command of Masuda.

/th a t a man
 E/CN.Ii/W.19
Page 227

that a man of ordinary sense and understanding would knew as soon as ho

heard the ordef read or given that it was illegal, will afford no
protection for a homicide, _ /vided the act with which he may he charged
has all the ingredients in it which nay he necessary to constitute the
same crime in law" (United States Court Martial Orders, 4-1929).
In the opinion of the Judge Advocate, however, the statement of the
law most clearly in point was cor.tallied in "the rules promulgated by
the Supreme Ca .mand of the Allied Powers for use in war crime cases. This
body of international law, briefly kncim. as the SCAP rules* and adopted
by the Commission at the direction of the Judge Advocate General of the
Navy, has the following provision applicable to the defence raised by
the accused, quoting sub-paragraph (f) of ParaGraph 16:
"The o f f ic ia l p o sitio n of the accused s h a ll not absolve him
from re s p o n s ib ility , nor be considered in m itig atio n of punishment.
F u rth er, actio n pursuant to order of the accuseds superior, or of
h is goverranont, s h a ll not c o n stitu te a defence bui; may be considered
in m itig atio n of punishment i f the commission determines th a t
ju s tic e so re q u ire s".
Two problems a ris e from the above arguments. In the f i r s t place
the question may be asked what is meant, in the th re e passages quoted
by the Judge Advocate in securing th e re je c tio n of the defence of
superior o rders, and elsewhe ~ in th e lite r a tu r e on the su b ject, by
the statem ent th a t a so ld ie r is e n title d under In te rn a tio n a l Law to
obey only commands which are lawful? Must these commands be law ful
under the Municipal Lav governing the s o ld ie r, or under In te rn a tio n a l
Law? The e x tra c t from the Judgment in U,S, v . Cerr leaves the point
in doubt. So, s t r i c t l y speaking, does th e dictum taken from the
Nicaraguan case since i t is not c le a r whether th e passage "and not
ju s tifie d by the ru le s and usages of war" i s intended to amplify, or
to be in a d d itio n to , the words " ille g a l in i t s e l f " . I f i t were the
la tte r , th e word " ille g a l" could be taken to mean ille g a l "under
Municipal Law".
The question is one of great importance. I f on order is le g a l
under In te rn a tio n a l Lnw, i t is d if f ic u lt to see how an act committed
in obedience to i t could be ille g a l under th a t system. I f the acti

* These are the P acific Regulations re fe rre d to on page 217.

/were thus
E/CN.VW.19
Page 228

were thus le g a l in i t s e l f th e re would be no need fo r an accused to

have recourse to the defence of superior o rd ers. On the other hand,
i f tho order reed only be le c a l under Municipal Law, i t would be
possible fo r the head of ar u th o rita ria n s ta te to order the execution
of m i prisoners of war and fo r a l l h is armed subordinates to c a n y
out such an order arid remain e n tire ly innocent of any war crim in ality .
Secondly, i f th e plea of superior orders is to be recognized as
a defence, or even only an argument in m itig atio n of sentence, seme
p rin c ip le s must be evolved which would determine the lim its of i t s
v a lid ity . Four possible c r i t e r i a were touched upon during the t r i a l :
(a) The degree of m ilita ry d isc ip lin e governing th e accused
a t th e time of the commission of the alleged offence.
Defending counsel la id great s tre s s on the exceptionally
s t r i c t obedience to orders which was expected from a Japanese
s o ld ie r. In so f a r as the plea of superior orders derives what
stren g th i t may have from the presence of c o n flic tin g lo y a ltie s
and compulsions in the mind of the accused, th is argument is
p e rfe c tly v a lid . On th e other hand, in view of th e fa c t th a t
the A llied Powers included among th e ir war aims th e overthrow
of the d ic ta to r ia l system of government, i t i s not lik e ly th a t
the p rev ailin g le g a l opinion would allow a person accused of
war crimes to plead in defence th e very disease against which
th e war was fought. Furthermore, general agreement w ill probably
be given to the Judge Advocate's opinion th a t: "The Japanese
Army must observe th e same ru le s th a t th e United S ta te s fig h tin g
man, th e man from B ussia and th e man from Great B rita in must
observe. The law is no resp ecto r of in d iv id u al n a tio n s. I f i t
i s to be an e ffe c tiv e law, i t must govern th e actions of e l l
n a tio n s."
(b) The r e la tiv e p o sitio n s in th e m ilita ry hierarchy of the
person who gave and the person who received th e order.
Counsel fo r th e defence pointed out th a t th e order was given
by a Rear-Admiral, to "mere Warrant O fficers and P etty O fficers".
Legally perhaps, such commands should bind th e subordinate no
more and no le s s than those of an immediate su p erio r, y e t i t has to
be recognized th a t, since th e whole defence i s based on a
psychological condition, tho s ta te of mind of th e accused, the
argument of th e defence has seme w eight.
(c) The m ilita ry s itu a tio n a t th e tin e when th e alleged offence
vas committed.
/The defence
 E/CN.1/W.19
Page 229

The defence pointed out th a t d isc ip lin e a t J a lu it was the

s t r i c t e r because of the nearness of th e United S tates fo rce s.
This defence is not the same as th a t based on m ilita ry n ecessity ,
when usine which the accused pleads th a t, irre sp e c tiv e of any
superior orders, he acted es he did because th e m ilita ry s itu a tio n
made i t necessary fo r him to do 60.
I f th is argument were to bo adm itted, i t would be fo r the
defence to prove th a t th e s itu a tio n had a c tu a lly a lte re d the
accused's a ttitu d e towards h is superiors so es to make him fe e l
th a t h is o b lig a tio n to obey them hod become s t r i c t e r .
(d) The degree to which "a nan of ordinary sense and understanding",
(quoting th e Judge Adv. te in th e Nicaraguan case) would 6ee th a t
the order given wa3 ille g a l.
In is t e s t i s equally v a lid , whether le g a lity under Municipal
law or under In te rn a tio n a l Law is meant. For Anglo-Saxon lawyers i t s
use would bo rem iniscent of th e frequent references to the h y p o th etical
"average reasonable man", and of a passage o f D icey's in reference to
the analogous c o n flic t between a s o ld ie r 's duty to obey orders and h is
allegiance to the general law of the land: " . . . . a so ld ie r runs no
s u b s ta n tia l r is k of punishment fo r obedience to orders which a man of
common sense may honestly believ e to involve no breach of law" (The Lear o:
the C o nstitution Eighth e d itio n , page 302, quoted by
Professor Lauterpacht in B ritis h Yearbook of In te rn a tio n a l Law. 19kk,
page 72) .
The f i r s t th re e o f these suggested 'c r ite r ia demonstrate an awareness
of the heavy pressure under which an accused may be actin g in obeying an
order. The In te rn a tio n a l M ilita ry Tribunal a t Nrnberg, commenting in
its Judgment on A rtic le 8 o f i t s Charter apparently had the same
consideration in mind when i t said : "The tru e t e s t , which is found In
varying degrees in the crim inal law o f most n atio n s, is not the existence
of the order, but whether nor . choice was' in fa c t p o ssib le."*
(v) Some T ria ls I ll u s tr a tin g the Degree to Which the Defence Has Been
Successfully Pleaded
Some instances in which the plea has been successful and some in
which i t has fa ile d are new to be quoted in order to i llu s tr a te the
extent of recognition given th e re to .

* B ritis h Command Paper, Cmd. 696h, page 1+2.

/The Judge Advocate
E/CN . 4/W. 3.9
Pegs 23O

The Judge Advocate in th e Masuda t r i a l ,* quoting th e "CCAP" ru le s,

adm itted th a t the plea might be e ffe c tiv e in m itig a tio n of sentence.
The custodian of the p riso n ers, in h is evidence, sta te d : "I had no intent
to 1:111 then es w ell as no m elice, / d l I did was to re la y th e order
mechanically end l e t the fly e rs be re le ase d ". The plea was e ffe c tiv e in
reducing h is sontence to one of imprisonment fo r te n y ears.
G ittin g from 23 A pril to 3 May 19^0, th e French Permanent M ilitary
Tribunal of Strasbourg tr i e d ex-G auloitcr Wegner and c e rta in of h is
underlings f e r offences committed by them in Alsace during th e German
occupation. One of the accused, Ludvig Luger, formerly Public Prosecutor
a t the Sondergerlcht of Strasbourg, ves charged w ith having been an
accomplice in murder. The charge was made in th e Indictment th a t, during
th e t r i a l of a group of th ir te e n A lsatian s accused of murdering a fro n tier
guard during an attempted escape to Sw itzerland, Luger acknowledged that
th e re was no evidence of th e guard having been k ille d by any of th e
accused yet demanded the death sentence, which was pessed on a l l th irtee n
accused, nevertheless Luger was a cq u itted , the Permanent M ilita ry
Tribunal fin d in g th a t he had acted under pressure from Wagner, then
G auleiter and Belch Governor of Alsace (The Indictment alleg ed th a t i t
was Wegner's normal ro u tin g to examine an Indictment before a t r i a l
was held before th e Scpidergericht. and to communicate to Luger h is
orders concerning the penalty which th e l a t t e r was to demand).
This French case is in te re s tin g also because i t rep resen ts an
instance in which the defence of superior order was pleaded, and
su ccessfu lly , not by a member of the armed forces but by a c iv ilia n ,
a member of th e German adm inistration of an occupied t e r r it o r y .
The Supreme Court of Norway provides th e next example.
Haurtsturm fuhrcr Wilhelm Artur Konstantin Wagner was charged before
the Legmcnnsrett (D is tric t Court) a t E ld siv atin g w ith having committed
war crimes in th a t he, in v io la tio n of the laws of humanity, was
concerned in th e d eportatio n and death of 521 Norwegian Jews. The
Lagmanncrett found him g u ilty and sentenced him to death. He appealed
to the Supreme Court on th e ground, l n tr r a l i a , th a t th e punishment
decided by th e Lagmannsrett was too severe, the m ajority of the Judges
having f a ile d to consider th a t he had acted on superior orders and that
in h is capacity of a suboidinate he could not have prevented th e carrying
out of th e decision of the German and Q uisling Governments.

* S e e p a g e s 2 5 -2 2 9 .
/When discussing
 E/CN.4/W.19
Page 23I

When discussing the se v e rity of the punishment decided upon

by th e L agaannsrett, the President of the Court agreed with the
m inority of th a t Court th a t i t had been e stab lish ed th a t the defendant
held a very unimportant p o sitio n in th e Gestapo and th a t th e re vas
nothing to show th a t he had taken any in itia tiv e in the actio n . His
p art had been to pass on the orders from B erlin to th e Chief of the
S tate Police and to execute the orders of h is su p erio rs. He was sure
th a t I f th e defendant had refused to obey o rd ers, he would have had to
pay fo r th e re fu s a l w ith h is l i f e .
On th e other hand, i t had been ascertain ed th a t th e defendant,
when superintending the embarkation of the Jews, had personally gone
to see to i t th a t more provisions were handed out to them.
He th e re fo re proposed to f i x the puni shine it- xo twenty years penal
servitude. The sentence was approved by e m ajority o f th re e to two.
Two more examples of t r i a l s in which th e court considered as a
m itigating fa c to r th e circumstance th a t an accused acted under superior
orders may be quoted, each re la tin g to t r i a l s by United S tates M ilitary
Commissions. On 2k January 1946, a General M ilita ry Government Court
s ittin g a t Ludwigsburg found two German c iv ilia n s , Johann Melchior and
Walter BirsoViftlimn. g u ilty of aiding, ab ettin g and p a rtic ip a tin g in the
k illin g of two prisoners of war by shooting them, but sentenced them to
l i f e imprisonment; th e records make i t c le a r th a t the death sentence was
not in f lic te d because the accused had acted under the orders of a
K reislei t e r . Karl Neuber was found g u ilty on 26 A p ril 1946, by a General
M ilitary Government Court a t Ludwigsburg, of aiding, ab ettin g and
p a rtic ip a tin g in the k illin g of prisoners of war by leading them to
execution and standing by while they were sh o t. He had acted on the
orders of Criminal Commissar Weger, in whose o ffic e he was a f il i n g c le rk .
The sentence passed was .one of Imprisonment fo r seven y ears, and an
examination of the record shows th a t th e Court, in fix in g the sentence,
bore in mind th e fa c t th a t Neuber acted under pressure of superior orders.
Trials abound in which the defence of superior orders, duress or
coercion, has been unsuccessfully pleaded. In a number of these, reliance
was placed by the Defence on either the so-called Fhrerbefehl of
1G October 1942, or upon alleged orders that "terror flyers" were no longer
to be Granted the protection accorded to prisoners of war.
In Articles 3 4, and 5 of the former,* Hitler addressed the
following orders to all officers in the German army:

* According to th e te x t produced by the Defence in the T ria l of

General Anton D ostlor (see page 232).
/"3. Therefore
E/CN.tyW.19
Page 232

"3 Therefore I command th a t: Henceforth a l l enemy troops

encountered by German troops during so -called commando operations,
in Europe or in A frica, though they appear to be so ld ie rs in
uniform or dem olition groups, armed or unarmed, are to be
exterm inated to th e l a s t man, e ith e r In combat or in p u rsu it.
I t m atters not in the le a s t whether they have been landed by ships
or planes or dropped by parachute. I f such men appear to be
about to surrender, no q uarter should be given them on general
p rin c ip le . A d e ta ile d re p o rt on t h i s point is to be addressed
in each case to the 0137 fo r inclu sio n in the- Wehrmacht communique'.
Jf. I f members of such commando u n its , actin g as agents,
saboteurs, e t c ., f a l l in to the hands of the Wehrmacht through
d iffe re n t channels (fo r example, through the police in occupied
t e r r i t o r i e s ) , they are to be handed over to the S ich erh eitsd ien st
w ithout delay. I t is form ally forbidden to keep them, even temporarily,
under m ilita ry supervision (fo r example, in F/\l camps, e t c . , ) .
5. These provisions do not apply to enemy so lid e rs who
surrender or are captured in actu al combat w ith in th e lim its
of normal ccmbat a c tiv itie s (o ffen siv es, la rg e -sc a le a ir or
sea-borne lan d in g s). Hor do they apply to enemy troops captured
during naval engagements, nor do a v iato rs who have baled out to
save liv e s , durinG a e r ia l ocmbat."
Unsuccessful re lia n c e was placed upon these orders by th e Defence
in the P o s tle r T ria l* end upon sim ilar orders (or perhaps th e same
o rders, a s lig h tly d iffe re n t account of them being given In evidence)
in th e T ria l of ICarl Buck and Ten Others by a B ritis h M ilita ry Court
in Wuppertal, Germany, 6 - JO May 19^6, in th e T ria l of Karl Adam
Golkel end T hirteen Others by a B ritis h M ilita ry Court, a lso in
Wuppertal, 1 5 - 2 1 Hay 1 9 ^ , and in other t r i a l s .
In a t r i a l before a United S ta te s M ilita ry Commission a t Freising,
Germany, Bury, ex-police ch ief of Langenselbod, K reis Hanau, Germany, and
Hefner, ex-policeman in th e same place, were accused of unlaw fully killing
a United S ta te s p risoner of war. I t was alleged th a t the former accused
d elivered th e p risoner to th e l a t t e r , w ith in s tru c tio n s to k i l l him, and
th a t Hafner c a rrie d out these o rd ers. The airmen was taken to a secluded
spot and sh o t. Bury sta te d th a t he had orders th a t " te rro r fly e rs " were
no longer to bo granted the p ro tectio n of prisoners of war and were to be
k ille d by lynching or .beating and th a t the police were not to protect
" te rro r fly e rs " i f the populace lynched them. Both accused were sentenced
to death by hanging and th e sentences were confirmed.

* See War Crime T ria l Law Reports, Volume I , pages 22-3^,

/The plea
 E/CN.4/W.19
Page 233

plea o f superior orders

The vae raised on behalf of both accused,
but the Commission rejected it.
It is worthy of note that his own testimony showed that Bury had some
latitude in determining whether or not any specific flyer should be killed.
He received noexplicit order with respect to the victim, and there was
nothInc to show that the haste and callousness with which the American
flyer was dispatched waB made necessary by the circumstances. Hafner is not
recorded as having meide any protest against the order. Wien he reported to
Bury that'the J o b was done, Bury replied: "It is right so."
(vi) Conclusion.
As was suggested at the beginning of this section,# the argument that
a soldier cannot, under conditions of military discipline, lightly disobey
an order is not without some weight, and pleas based on the argument by
Defence counsel in the Masuda Trial has often been repeated elsewhere. A
variation is to be found in the argument of Counsel for D r . Klein, one of
the accusd in the Belsen Trial; Counsel claimed that if a British
soldier refused to obey an order he would face a Court Martial, where he
would be able to contest the lawfulness of the order, whereas Dr. Klein
has no Buch protection.
Nevertheless the rights of the unfortunate victim muBt also he kept
constantly in mind.
The material comprising this section (pp. 217-233) has been of two
kinds:
(a ) M a te ria l s e ttin g o u t th e o lrc u m s ta n c e s i n w h i c h t h e p l e a m ay

be o r h as b een s u c c e s s fu lly p u t fo rw a rd . Q u o ta tio n s fro m th e v a r io u s

a u t h o r i t i e s w h ic h m ake t h e ille g a lity , o r th e re c o g n itio n o f th e

ille g a lity o r o t h e r w i s e , ' o f t h e o r d e r i n so m e w a y o r o t h e r t h e

c rite rio n (se e pp. 2 2 1 -3 2 2 k - l3 a n d 2 2 6 - 2 2 7 ; f a l l in to th is c a te g o ry ,

as do a ls o t h e d e s c r i p t i o n o f B uch t r i a l B a s th e W agner T r i a l ***

a n d t h e M asu d a T r i a l * * * * i n w h ic h t h e p l e a h a d so m e e f f e c t .

It is difficult to say at present how far such criteria as those

set out on pageb 33-3^ ^-re followed by Courts and how far they
constitute suggestions*d lege ferenda, but Indications of a
realization that all cases cannot be treated alike are not lacking.
The Prosecution i n i t s opening statement in the Trial of Wilhelm
List and others,***** in discussing t h e controversy which had
a r l B e n over the t r i a l of high-ranking ex-enemy commanders, said;

* Ho p. 217.
** Soe War Crime Trial Law Reports, Volume II, p, 79 (now being printed).
*** See p. 2 2 9 - 3 0 .
**** see p. 2 3 O.

***** By a United States Military Tribunal in Nuremberg. The trial has

not yet b e e n completed.
/" O th e rs
E/CN.U/W.19
Page 23!+

"Others and qu ite d iffe re n t doubts have been ra ise d by same

who, w ith a b lu rred v isio n of m ilita ry d is c ip lin e , suppose th a t
m ilita ry men are a so rt of race ap art, who are not responsible
fo r th e ir actions because they are expected to obey orders.
But th e law and code of the German Army i t s e l f says th a t i t is
the duty of every so ld ie r to refuse to obey orders th a t he knows
to be crim inal. This may be hard fo r th e ordinary so ld ier acting
under f)ls t o l - point orders from his lie u te n a n t. I t 1b f a r le ss
d if f ic u l t fo r hifth-ranking commanders such as th e men in the
dock."*
(b) M aterial' defining th e le g a l e ffe c t of the plea when successfully
put forward. Enactments and other a u th o ritie s se t out above** make it
c le a r th a t, while the Defence can never claim th a t superior orders
. rep resen t an absolute defence which would remove th e le g a l g u ilt
of the prisoner (as would, fo r instance, a successful plea of
in s a n ity ), the Court may consider the f a c t th a t an offence was
committed under orders as a m itig atin g circumstance and may therefore
i n f l i c t a lig h te r penalty than would have been imposed, or may
impose no penalty a t a l l .
The follow ing tra n s la te d e x tra c t from pages 2^3-5 f Professor Michel
de J u g la r t's work, R epertoire Mthodique de l a Jurisprudence M ilita ire
i 8 reproduced here since i t sums up, not only th e problem involved in the
a d m issib ility or otherwise of the plea of superior orders, but also the
various possible approaches to the question, and, in i t s conclusion, the
so lu tio n generally adopted:
"Villi i t be necessary to punish w ithout d iscrim in atio n those
who, in obedience to Superior Orders, have stru ck p riso n ers, shot
hostages and p illa g e d property? A d is tin c tio n has always been made
in th is connection between c iv ilia n s and s o ld ie rs . C iv ilian s are
assumod to have an opportunity fo r con sid eratio n , fo r discussing
th e orders they received from th e ir su p erio rs, and one therefore
considers in general th a t they commit an offence i f they carry out
an order which they regard as ille g a l...O n th is question, the rules
of (French) substantive law were in consequence s u ffic ie n tly *
f le x ib le and s u ffic ie n tly precise to permit of the punishment of
th e many offences committed during th e war against Frenchmen by

* I t a l i c s in s e rte d .
** See pages 210-20 and 22U,
/German civilians
 E/CH.VW.19
Page 235

German c iv ilia n s in Germany or in France

"For so ld ie rs on the other hand the demands of h ie ra rc h ic a l
au th o rity and of d is c ip lin e profoundly a lte r th e s itu a tio n . But
i s i t necessary to admit th a t a so ld ie r s h a ll escape a l l crim inal
consequences under th e p retex t th a t he was hound to obey th e one
who gave him ille g a l orders? This question occupied the minds
of French penologists to a g reat ex ten t during th e war of I 91V
to 1918, when the a p p licatio n of Municipal Law to acts of war
in v io la tio n of In te rn a tio n a l Law was being discussed by th e
Socit des F riso n s. The m ajority agreed to recognize th a t
m ilitc ry d isc ip lin e was absolutely indispensable, th a t one could
not admit th a t B oldiers, non-commissioned o ffic e rs , or even
commissioned o ffic e rs should discuss th e orders which were given
them, i t being admitted th a t they cannot in general estim ate the
le g a lity of these o rders. The exculpating circumstances described
in A rticle 327* were thus in larg e p ert adm itted. Consequently
the extent of the a p p licatio n of punishment to acts of war wbb
considerably reduced and th ere only remained, as a l a s t s h r i f t ,
the p o s s ib ility of the re s o rt to r e p r is a ls , dangerous though i t was
fo r a people such as ours to make use of such a method.
" I t was on th is question th a t th e le g is la to r in 1 9 ^ was le d
to make a new departure. In amending the le g a l te x ts he had the
choice between th re e a lte rn a tiv e s . He could f i r s t conceive of
le g is la tio n in which the circumstances s e t out in A rtic le 327
would always have been excluded n o t only as a complete defence
but a lso as an extenuating circumstance or an excuse frem the
moment he found him self faced w ith an offence committed by a
c iv ilia n or a so ld ie r during th e war. This was th e so lu tio n
which M. Hugueney seems to approve, in a much more general way
i t is tru e , fo r orders given to o ffic e rs , and he quoted the
example of a colonel who received frem h is superior o ffic e r orders
to make h is troops intervene to support a coup d ^ t a t . (Hugueney,
T ra ite de d ro it penal m ilit a ir e , page 396.) I t is not so much
th e m anifest ille g a l i t y of the order received as the very s itu a tio n
in which th e accused is placed which would account fo r th is
so lu tio n . For others i t would seem b est to examine in d e ta il each
p a rtic u la r case in order to fin d whether a crim inal element is

* A rtic le 327 of the French Code Penal provides: "No crime or d e lic t
is committed when the homicide wounding or s trik in g was ordered by
the law or by le g a l a u th o rity ."
/involved
in v o lv e d . W as h e w h o c o n a n i t t e d t h e o ffe n c e a c tin g on s p e c ific

o rd e rs? W as h e , f o r e x a m p l e , a m em ber o f a n e x e c u t i o n s q u a d ?

Then one should not condemn him because he could do no o th er;

on th e other hand was he re ly in c on a kind of general order or
a general a u th o rizatio n which sta te d : "You may k i l l " , and
did he perform the k illin g in v irtu e of an order of th is nature?
He has then committed a crime fo r which he i s f u lly resp o n sib le.
(Normand, Socit des ir is o n s . l6 June 1915; Revue p n ite n tia ire ,
1915/ page V70) I t is th is approach which Judge Jackson seems
to support in h is re p o rt to President Truman, in which he w rites:
"'There e x is ts a province in which obedience to
superior orders s h a ll p re v a il as a defence; i f a so ld ie r
is placed in on execution squed he must not be made
responsible fo r the v a lid ity of th e sentence. But the
question is very d iffe re n t when a person, by reason of h is
rank or of the la titu d e of the orders which he has received
has f u l l lib e r ty of a c tio n . Superior orders as a means of
defence could not apply in th e case of voluntary p a rtic ip a tio n
in an organization of crim inals or conspirators lik e the
Gestapo or the 3 .S .'
"There e x ists an interm ediate approach which the le g is la to r s
of the Ordinane of 19^4 have adopted; i t c o n sists in excluding
in general the command of the law or th e orders of leg itim ate
au th o rity as a Ju stify in g circumstance, while re ta in in g them as
an extenuating fa c to r or excuse. The crim inal character of the
a ct th e re fo re always remains but an in d iv id u a liz a tio n of the
penalty, imposed more or le s s severely according to the case,
permits a m odification of th e consequences. I t is by th is system
th a t the draftsmen of the Code Penal and the Code de Ju stic e
M ilita ire have sometimes been in sp ire d . I t is thus th a t in the
circumstances described in A rtic le Mil of th e Code Penal and
A rtic le 221 Paragraph 3 of the Code de Ju stic e M ilita ir e , a
lessening of the penalty is provided fo r in the case of c e rta in
persons prosecuted fo r p illa g e in gangs, or d estru ctio n ; fo r i f
these persons prove th a t they had w ith them persons who in stig a te d
or provoked the offence they may (by the f i r s t provision) or must
(by the second) b e n e fit from a lessen in g of th e penalty. An
examination of these te x ts shows th a t the le g is la to r has two ways
a t h is disposel of securing in th is connection an in d iv id u alizatio n
of the penalty; he can in th e f i r s t place impose a lessening of the
/p en alty ,
 E/CN.tyW.19
Page 237

penalty, and th is Is what he has done in A rtic le 221 Paragraph 3

of th e Code de Ju stic e M ilita ir e , "but he can also leave I t to
the Judge'to apply where d esirab le (s ' i l y a l i e u ) a le s s severe
. penalty (A rticle 44l of the Code Penal), or even to impose no
penalty. I t is the l a t t e r course which the Ordinance of
28 October 1 9 ^ lias adopted.......... "
If. le g a lity under Municipal Law
The sense of duty to obey the law of one's country is lik e ly
to be more abiding than the sense of duty towards th e orders of a
superior o ffic e r, but i s probably in many circumstances le s s in ten se.
Here again, however, the path if absolute Ju stic e has not always been
easy to fin d .
The municipal enactments quoted in connection w ith superior orders
(see pages 217-220) , are, in a sense, a l l relev an t in th is connection,
and in f a c t, the Belgian law of 20 June 19^7, relev an t to th e competence
of M ilitc ry Tribunals in the m atter of war crimes a ctu a lly includes the
words: "The fa c t th a t the accused acted in accordance w ith the provisions
of enemy laws or reg u latio n s" in s e ttin g out th e circumstances which
cannot be regarded as a reason fo r J u s tif ic a tio n of crimes.
A rtic le 3 of the French Ordinance of 28 August 19kk, has a
sim ilarly worded provision; so also has A rtic le If- of the Luxembourg
War Crimes Law of 11 August 19^7.
Again, A rtic le 13(1) of a Czechoslovak Law of 2k January 19k6,
re la tin g to the punishment of war crim inals and t r a i t o r s , s ta te s th a t:
"Acts punishable under th is law are not J u s tif ie d by the
fa c t th a t they were ordered or perm itted by the provisions of
any law other than Czechoslovak Law or by organs set up by any
s ta te au th o rity other then the Czechoslovak, even i f i t is claimed
th a t th e g u ilty person regarded these in v a lid provisions as le g a l" .
The defence th a t th e accused's a c ts were J u s tifie d in th e ir own
municipal law received consideration in the Belsen t r i a l . In h is
argument in defence of a l l the accused, Colonel Smith submitted th a t
wherever th e re was a c o n flic t between In te rn a tio n a l Law and th e law of
a p a rtic u la r country i t was the duty of the c itiz e n of th a t country
to obey h is n a tio n a l law. For th a t th e re was overwhelming le g a l
au thority from which he selected two cases. The f i r s t was th a t of
Mortensen v. P eters heard in 1906 in the S co ttish High Court of
J u stic ia ry (Eight Sessions Cases, n in e ty -th ree ; fo rty -th re e S co ttish
Low Reports 872) . The B ritis h Parliament had passed an Act p ro h ib itin g
certain forms of fis h in g in the whole of the Moray F irth in Scotland,
/ including
S/CN.It/V.19
Page 238

including a considerable afea beyond the recognized lim its of te r r ito r ia l

w aters. A Norwegian fish ed outside t e r r i t o r i a l w aters, but w ithin the
area covered by the S ta tu te . He was convicted in a S co ttish Court and
the High Court of J u s tic ia ry on appeal unanimously held th a t they were
not concerned as to whether the S tatu te v io la te d In te rn a tio n a l Law or
n o t. The Law of the land, expressed in an Act of Parliam ent, was binding
on the court and they had to uphold the conviction. Counsel commented
th a t i f Parliament in ad v erten tly overstepped the lim its of In tern atio n al
Law th a t was a m atter not fo r th e in d iv id u al c itiz e n or Judge, or
policeman, but fo r discussion between the governments concerned.
The fa c ts of the second case, Pong Tare Ting v. United S tates
(93, 114.9 United S tates Reports 698) heord by th e Supreme Court, were that
Congress passed le g is la tio n r e s tr ic tin g Chinese immigration in d ire c t
v io la tio n of a Treaty with China. The decision was th a t th e provisions
of an Act of Congress passed in the exercise of i t s c o n stitu tio n a l
a u th o rity must, i f c le a r and e x p lic it, be upheld by the Courts, even in
contravention of the s tip u la tio n s of an e a r lie r Treaty.
The a ttitu d e of the German Courts was exactly th e same. The
p rin c ip le th a t where th e re was a c o n flic t between In te rn a tio n a l Law
and Municipal Law th e c itiz e n was bound to obey h is Municipal law did
not diminish the re s p o n s ib ility of th e S tate towards the offended State
fo r i t s f a ilu r e to make i t s in te rn a l law correspond w ith i t s in tern atio n al
o b lig a tio n s.
Applying t h i s argument to th e fa c ts of th e present case, Counsel
suggested th a t in so fa r as th e accused obeyed o rd ers, a l l these orders
were le g a l. There bad been in Germany a most extraordinary s itu a tio n
in which th e re was not and could not normally be any c o n flic t between a
le g a l executive order and one i lle g a l in th e sense th a t a law did not
permit i t . In th e very f i r s t stages of H itle r 's regime the Reichstag
abandoned a ll i t s powers and H itle r became th e Executive and L egislator
in one. Not only did H itle r him self combine a l l these powers but he
a lso delegated them to c e rta in persons who were d ire c tly responsible
t o him. The orders of each of these had th e force of law w ith in h is
lim its , and among th e ir number was Himmler. By various stag es, Himmler
became head of the p o lice, including th e Gestapo and th e S .S ., and
in 1914.3 he became M inister of the I n te r io r . Under th e German le g a l
framework he could issu e an order which as such had th e force of law.
That was re in fo rce d by a law of 10 February 1936 which put th e Gestapo
and, in f a c t, a l l police a c tiv itie s beyond th e reach of the law insofar
as they were of a p o litic a l n atu re. The substance of i t was th a t no
/a c tio n
 B/C.tyW.19
Page 239

action undertal:en by the Gestapo or by any p o lice, in so fa r as i t had

a p o litic a l ch aracter, was subject to any co n tro l of the co u rts; and,
Counsel commented, the word "police" had a wide meaning in German.
Neither could any police action be questioned by anybody except a t the
p e ril of h is l i f e . Counsel could not produce a law le g a liz in g the
gas chambers a t Auschwitz, but submitted th a t a l l th a t was needed was
an order from Himmler saying; "Have a gas chamber". That order was
a law which every German had to obey in so far as i t concerned him. In
the case of the average German i t was impossible to have th e kind of
co n flic t which might a ris e in England, where a man might question the
order of h is superior o ffic e r and say: "You cannot give me th a t order
under th e .Army A ct,"
In h is closing statem ent, the prosecutor did not deal w ith the
principle involved but simply pointed out th a t Colonel Smith had
suggested th a t a decree gave absolute pcver to th e competent au th o rity ,
so th a t ary order th a t Hlionler gave autom atically became law, whereas
an examination of tho Decree showed th a t i t did nothing of th e kind.
What th e Decree in fa c t did was simply to say th a t cases against c e rta in
privileged bodies would be tr i e d not in th e ordinary courts but in th e
courts of those p riv ileg e d bodies. I t gave the S .S ., amongst other people,
immunity frcm t r i a l in an ordinary Court fo r m atters which they considered
to be m atters of p o litic s . Therefore, i f th e crime against German Law
vhich they committed was one which Himmler him self was condoning, in
a ll p ro b a b ility they would be absolved from re s p o n s ib ility . That was
the most th a t could be sa id . Could these acts be said to be done under
cover of au th o rity when they were kept secret even in Germany, and when
any records th a t were kept were covered by the words "Special Treatment"?
In his submission, th ere was no pretence of le g a lity about th is procedure.
Everyone in the camps knew th a t the d a ily murders were wrong.
In finding th i r t y of the accused g u ilty , th e court c le a rly re je c te d
this argument put forward by the defence.
Also re le v an t in th is connection i s the t r i a l of Robert Holzer,
Walter Weigel and Wilhelm Ossenbach before a Canadian M ilitary Court
at Aurioh, from 25 March to 6 A pril 1946.
Insofar as the cases involving d en ial of ju s tic e involved the
simple ap p lic atio n of the German law, such cases are relev an t here,
5. N ecessity
Dealing w ith the plea of N ecessity, Oppenheim-Lauterpacht,
International Law. Volume I I , Sixth E dition (Revised), pages 183-184,
states;
/"As soon
E/CN.U/W.19
Pago 24-0

"As soon as usages of warfare have by custom or tre a ty evolved

in to lave of war, they are binding upon b e llig e re n ts under a ll
circumstances and conditions, except in the case of re p ris a ls as
r e ta lia tio n against a b e llig e re n t fo r ille g itim a te acts of warfare by
the members of h is armed forces or h is other su b jects. In accordance
w ith the German proverb, Kriegsraeson geht vor Kriepsmanler (necessity
in war overrules the manner of w arfare).- many German authors before the
World Wax were already m aintaining th a t the laws of war lose th e ir
binding force in case of extreme n e ce ssity . Such a case was said to
a ris e when v io la tio n s of th e laws of war alone o ffe rs , e ith e r a means
of escape from extreme danger, or the re a liz a tio n of the purpose of
war namely, the overpowering of the opponent. This alleged exception to
the bindinc force of the law of war was, however, not a t a l l
generally accepted by German w r i t e r s . . , . The proverb dates very
f a r bade in the h isto ry of w arfare. I t o rig in ated and found
recognition in those times when w arfare was not regulated by laws
of war, i . e . generally binding customs and in te rn a tio n a l tr e a tie s
but only by usages (Manier, i . e . Brauch) ... In our days, however,
warfare is no longer reg u lated by usages only, but to a g reater
extent by laws - film ru le s recognized e ith e r by in te rn a tio n a l
tr e a tie s or by general custom. These conventional and customary
ru le s cannot be overruled by n e ce ssity , unless they are framed in
such a way as not to apply to a case of n e ce ssity in s e lf
preservation . . . . A rtic le 22 of th e Hague Regulations s tip u la te s
d is tin c tly th a t th e rig h t of b e llig e re n ts to adopt means of injuring
th e enemy i 6 not unlim ited, and th is ru le does not lo se i t s binding
fa rc e in case of n e ce ssity . What may be Ignored in th e case of
m ilita ry n e ce ssity are not th e laws of war, bu t only the usages of
w ar."
The plea of M ilita ry N ecessity was ra is e d in th e t r i a l of Gunther Thiele
and Georg S te in e rt before a United S tates M ilita ry Commission a t Augsburg
on 13 June 19^5.
The accused, a German Army Lieutenant and Grenadier resp ectiv ely ,
were charged w ith a v io la tio n of the Lavs o f War. The sp e c ific a tio n
ag ain st Thiele alleged th a t he "did, a t or near B illingsbach, Germany,
on or about 17 A pril 19^5, wrongfully and unlaw fully order th a t . . .
an Americcn p risoner of v o r, be k ille d , which order was then and there
executed by a member of h is command." I t was alleged th a t S te in e rt
"did, a t or near B illingsbach, Germany, on or about 17 A pril 19^5,
wrongfully and unlaw fully 3 :ill" the same named prisoner of war.
Both accused pleaded not g u ilty . .
/ I t was
 I t was shown th a t a United S tates o ffic e r was wounded and taken
prisoner by members of the command of Lieutenant T hiele. Captain Schwaben.,
the B attalio n Commander ar.d superior o ffic e r of Lieutenant T hiele, sent
an order to Lieutenant Thiele to k i l l th e prisoner. Lieutenant Thiele
then ordered Grenadier S te in e rt to do th e k illin g , and C-rer.adier S te in e rt
c a rrie d out th is order. ' The accused were, a t th e time of the offence,
p art of a German u n it which was clo sely surrounded by United S tates
troops, from whom the Germans were hiding.
The court re je c te d the plea ra ise d by the defence th a t the acts
of the accused were le g a l because based on m ilita ry n ecessity .
The accused were sentenced to death by hanging. On th e recommendation
of h is S ta ff Judge Advocate, however, the appointing au th o rity commuted
the sentences to terms of imprisonment fo r l i f e .
The Norwegian Law of 13 December 1946, on the punishment of
foreign war crim inals, makes the following provision:
A rtic le 5:
"Necessity and superior order cannot be pleaded in exculpation
of any crime re fe rre d to in No. 1 of the present law. The court may,
however, take the circumstances in to account and may impose a
sentence le ss than the minimum la id down fo r the crime in question
or may impose a m ilder form of punishment. In p a rtic u la rly
extenuating circumstances the punishment may be e n tire ly rem itted ."*
Other t r i a l s which are re le v an t are the Milch t r i a l , (Subsequent
Proceedings No. 2), the Dachau Concentration Camp t r i a l , (ree page 215J
the t r i a l of Mineno G enji, before a United S ta te s M ilitary Commission a t
Yokohama, on 25 June 1946; the t r i a l of L t. Comd. Naoomi Suzuki and
L t. Yoshio Nara before an A ustralian M ilita ry Court a t Babaul on
26 A pril 19*1-6; t r i a l of Capt. Shoichi Yamamoto and ten others before an
A ustralian M ilita ry Court a t Babaul from 20 to 27 May 1946; the
Neuengamme Concentration Camp t r i a l (mentioned on page 11*7) end the
t r i a l s of General V ictor Alexander F ried rich W illy Seeger and fiv e others,
(see page 165) and the Bavensbruck Concentration Camp T ria ls ,
(see page 16I ) .
In the Masuda t r i a l , (see pages 225 e t seq), none of the accused
e x p lic itly pleaded m ilita ry n ecessity as such as a defence. The
evidence given by Masuda before h is su icid e, however, contained the

* A rtic le V III of the Chinese Law of 24 October 1946, Governing the

t r i a l of War Criminals provides, in te r a l i a , th a t th e circumstance th a t
wor crime8 were committed out of p o litic a l n ecessity s h a ll not exonerate
the of .'endors. Under A rtic le 4o of the Netherlands Penal Code, which
is apxlicable to war crime t r i a l s , however, an a ct is not punishable i f
"forced by n e ce ssity ". ,
/passages:
E/CN.4/W.19
Pace 242

passages: "Day by day the general tre n d of the war was g e ttin g more
grave fo r the Japanese, th e re fo re we decided th a t i t was impossible
to fin d any way to send the prisoners of war back to Truk or to Japan
in sp ite of our earnest d esire to do so........ Every day the enemy's a ir
a tta ck s were so fie ro e we began to re a liz e i t was d if f ic u l t to continue
detaching guard to p ro tect the prisoners and to keep them provided".
Tlie Judge Advocate sta te d : " . . . i t i s in fe rred strongly in the Admiral's
rep o rt th a t th e f l i e r s were executed because an American invasion of
J a lu i t was imminent. Even the accused would have to admit th a t th a t
would be w ithout ju s tif ic a tio n " . I t is hard to conceive in what
circumstances the m ilita ry s itu a tio n would J u s tify th e k illin g of
prisoners of war. I t is in te re s tin g also to note th a t i t has been
argued (in note 1 to page 185 of Oppenheim-Lauterpacht, In te rn a tio n a l Lav.
S ixth E dition (Revised)), th a t the Hague Peculations were drawn up in the
lig h t of m ilita ry n e c e s s itie s , and th a t due allowance was given to the
l a t t e r in framing the Convention.
6. R eprisals
I t has sometimes been pleaded on b eh alf of the persons accused of
committing war crimes th a t a cts proved ag ain st th e defendants were
J u s tif ie d as c o n stitu tin g r e p r is a ls . For in stan ce, in the D ostler
t r i a l , * defence counsel quoted th a t p art of the well-known passage from
Oppenheim-Lauterpacht, In te rn a tio n a l Law, S ix th E d itio n , Volume I I ,
page 453, on superior orders which runs as follow s:
"Undoubtedly, a Court confronted w ith th e plea of superior
orders adduced in J u s tif ic a tio n of a war crime i s bound to take into
consideration the fa c t . . . . th a t an a c t otherwise amounting to a
war crime may have been executed in obedience to orders conceived
as a measure of r e p r is a ls . Such circumstances are probably in
themselves s u ffic ie n t to d iv e st th e a c t of th e stigma of a war crime".
P rofessor Lauterpacht has elaborated th is view somewhat in the course
of an a r t i c l e e n title d : The Law of Nations and The Punishment of War Crimea
in The E r itls h Yearbook of In te rn a tio n a l Law fo r 194k (pages 58-95)
P e rt of h is passage on The E ffe ct of the Operations of R ep risals runs
as follow s:

* T ria l of General Anton D o stler, before a M ilitary Commission at

Rome from 6 - 1 2 October 194-5.

/The element
 "The element of re p ris a ls may have a sig n ific a n t and perplexing
bearing vpon the plea of superior orders. I t has been shown th a t
the strength of th e plea of superior orders is conditioned by the
degree of heinousness of th e offence ond i t s approximation to a
common crime apparently divorced both from b e llig e re n t n ecessity
and from elementary considerations of humanity. But the force of
th is l a t t e r consideration mey become considerably impaired - though
never to ta lly elim inated - when the act has been ordered, or
represented to the subordinate as having been ordered, in pursuance
of re p ris a ls against a sim ilar or id e n tic a l crime committed by the
adversary. The subordinate may be expected, when confronted with
an order u tte r ly and palpably contemptuous of lav and humanity
a lik e , to a s s e rt, a t the r is k of h is own l i f e , h is own standard
of law and m orality. This is an exacting though unavoidable t e s t .
But no such independence of conviction and action may invariably
be expected in cases where the so ld ie r or o ffic e r is confronted
w ith a command ordering an a ct adm ittedly i lle g a l and cru el but
issued as a re p ris a l against the sim ila rly reprehensible conduct
of the adversary. He may a ttr ib u te to th e accused a rudimentary
knowledge of the law and an elementary standard of m orality, hut
i t mey be more d if f ic u l t to expect him to be in possession of the
necessary inform ation to enable him to Judge th e law fulness of the
re ta lia to r y measures in question in re la tio n to the circumstances
alleged to have given r is e to them."
Judge Larssen, d eliv erin g the Judgment of the Norwegian Supreme Court
on the appeal of Kriminalselaretar Bruns and two others against the death
sentenced passed on them by the E id siv atin g Lagmannsrett on 20 March 19^6,
made c e rta in remarks which throw lig h t on the question of the
a d m issib ility of the defence of leg itim ate re p r is a ls . Judge Larssen
said th a t i t had not been e stab lish ed th a t the acts of to rtu re of which
the accused had been found g u ilty had been c a rrie d out as r e p ris a ls .
R eprisals were generally understood to aim a t changing the adversary's
conduct and forcing him to keep to the generally accepted ru le s of law ful
warfare. I f th is aim were to be achieved, the re p ris a ls must be made
public and announced as such. During th e whole of the occupation th ere
was no was no in d ic a tio n frem the German side to the e ffe c t th a t th e ir
acts of to rtu re were to be regarded as re p ris a ls against th e Underground
M ilitary Organization (to which the victim s had belonged). They appeared
to be German police measures designed to e x to r t during in terro g atio n s
information which could be used to punish people or could eventually have
/le a d
E/CH.WW.19
Page 2a4

lead to r e a l re p ris a ls to stop a c tiv itie s about vhich inform ation was
gained. The method of "verschrfte Vernehmung" vas nothing bu t a
German routine police method and could, th e re fo re , not be regarded as
a r e p r is a l.
In Judge L arssen's opinion i t was not, th e re fo re , necessary to
deal w ith the question whether the various acts of the M ilitary
Organization were contrary to In te rn a tio n a l Law and whether as such they
J u s tif ie d re p r is a ls .
In a number of war crime t r i a l s before French M ilitary Tribunals,
various crimes were shovn to have been p erp etrated by German so ld iers
allegedly as a " re p risa l" fo r offences committed by French nationals
against members of the German fo rc e s. These crimes were generally of
the "murder" type, and the French n atio n als whom the Germans tre a te d
as having provoked " re p risa ls" were mostly members of the French
R esistance Movement, who often conducted m ilita ry operations against the
German u n its statio n ed in France. The victim s were in v ariab ly French
lo c a l in h a b ita n ts, quite innocent of th e alleged offences which were
committed by members of the R esistance Movement.
In a l l these cases, th e French Tribunals found the accused g u ilty
of acts "not ju s tif ie d by the laws and customs of war" and condemned them
to heavy p e n a ltie s, including c a p ita l punishment.
The following t r i a l can be regarded as a p a tte rn caser*
On 20 August 1944, members of the French Forces of the In terio r
(FFI), attacked S t. Girons and on th is occasion engaged in b a ttle
ag ain st a German column in the neighbourhood of a v illa g e called
Rimont. The inh ab itan ts of the v illa g e formed a "home guard" of
tw enty-three men and had the assistan ce of eight Spaniards, members
of the FFI. This small force re s is te d th e advance of the German
troops fo r several hours and then re tre a te d , while a large number
of in h abitants took refuge in the nearby woods. When entering
th e v illa g e the German commanding o ffic e r gave orders to se t on
f i r e th e houses end to shoot a l l c iv ilia n s over fo u rteen years of
age. I 52 houses were burnt down out of a t o t a l of I 69, and nine
c iv ilia n s were captured and shot on th e spot. In a d d itio n to th is
two old men, of seventy and seventy-two years of age, were
d e lib e ra te ly k ille d while try in g to get out of the v illa g e . During
the t r i a l i t was e stab lish ed th a t none of the victim s took part in
the armed re s ista n c e .

* T riu l of L t. H eifer and fiv e o th ers. Judgment pronounced by the Military

Tribunal a t Toulouse on 16 A pril 1946.
/Such t r i a l s
 E/CN.4/W.19
Page 245

Such t r i a l s as th is seem to lead to the following conclusions:

(1) In a l l cases under review th ere were in fa c t no "re p risa ls"
in the proper sense, but merely a rb itra ry acts of revenge against
co-nationals of those who fought ag ain st members of the occupying
fo rc e s, Thi6 is an important d is tin c tio n since i t is always
possible to la b e l a tr o c itie s as law ful r e p ris a ls , as th is was done
in innumerable instances by the Germans both during the f i r s t * and
th e second world war.
(2) The French Tribunals presumably recognized fu lly the sta tu s
of law ful b e llig e re n ts to members of the French Besistance Movement
under the terms of A rtic le 1 of the Hague Regulations, and tre a te d
th e ir acts against the German forces as m ilita ry operations conducted
w ith in the lim its of the laws and customs of war. Such a cts would
consequently not rep resen t a v a lid ground fo r r e p ris a ls , unless
the French combatants themselves were g u ilty of an offence, which
was in no case under review invoked in defence of the accused. In
th e above instance, the recognition was im p lic itly extended to the
ad hoc "home guard" co n stitu ted by the v illa g e rs .
(3) Presumably in no cases were the acts against the Germans
committed by individuals not e n title d to th e sta tu s of b e llig e re n ts
vinder th e Hague R egulations. This presumption is important since i t
could be open to discussion whether r e p ris a ls in the proper sense
could not be law fully undertaken ag ain st non-combatants were serious
offences against the se c u rity of th e occupying forces p erpetrated by
th e c iv ilia n population proper.**
Other t r i a l s which are re le v an t are th e t r i a l of Wilhelm L ist and
eleven others (see page 153) (Subsequent Proceedings Ho.7 ); B ritis h .t r i a l s
of Karl Maria von Behren (see page I 7I) and of General Seeger and fiv e
others (see page I 65) and the t r i a l of Eberhard von Mackensen and
Kurt Maelzer, t r i e d by B ritis h M ilita ry Court a t Rome from 18 to
30 November 1946.

* Cf. Oppenheim-Lauterpacht, In te rn a tio n a l Law, Volume I I , Sixth E dition,

page 447, n. 1.
** Cf. fo r instance Oppenheim-Lauterpacht, o p .c it. page 449, where
i t is sta te d : "There is no doubt th a t A rtic le 50 of th e Hague
Regulations enacting th a t no general penalty, pecuniary or otherwise,
may bo in f lic te d on the population on account of the acts of
in d ividuals fo r which i t cannot be regarded as c o lle c tiv e ly responsible,
docs not prevent the burning by wav of re p r is a ls , of v illa g e s , cr
even towns, fo r a treacherous a ttack committed th ere on enemy
so ld ie rs by unknown in d iv id u e ls, and th is being so, a b ru ta l
b e llig e re n t has h ie o p p o rtu n ity '. ( I ta li c s are introduced.)
/B rigadier-G eneral
E/CN.4/W.19
Pag 246

B rigadier-G eneral T elford Taylor, United S ta te s Chief of Counsel

fo r War Crimes, in the speech to which reference has already been made
(see page 215), in declin e w ith reasons why th e ru le s of w arfare are not
more highly respected today, said th a t:
"Another reason is th a t th e p a r tia l c o d ific atio n s of the laws
of war are s ile n t or ambiguous on many important m atters. The Hague
Conventions, fo r example, say nothing e x p lic it about th e taking or
execution of hostages in occupied t e r r i t o r i e s : in te rn a tio n a l penal
law on th is subject can be, and i s , applied today where i t 6 quite
c le a r th a t a tr o c itie s q u ite beyond the bounds of m ilita ry necessity
have been committed, bu t in c lo se r cases we are l e f t la rg e ly to the
speculations of le g a l sch o lers, without much p ra c tic a l guidance.
From the standpoint of in te rn a l penal law, we are not much b e tte r
o ff. The American m ilita ry manual, fo r example, t e l l s us th a t
hostages may be executed, but does not give th e so ld ie r much
guidance as to when and under what circumstances such executions
may be le g itim a te . The in te rn a l m ilita ry law of other important
countries is s ile n t on t h i s fundamental q u e stio n ."*
7. The Defence of Mistake of Law
In .general, mistake of law is not regarded as an excuse.
I t is a ru le of English law th a t ignorance of th e law is not an
excuse: Ignorantla J u ris neminem excusat. There i s same l i t t l e
in d ic a tio n , however, th a t th is p rin c ip le , when applied in war crime
t r i a l s , is not regarded u n iv e rsally as being in a l l cases s t r i c t l y
enforceable. Thus, Oppenheim-Lauterpacht, In te rn a tio n a l Law, Sixth
E d itio n (Revised), pages 452-3, s ta te s th a t "a Court confronted with
the plea of superior orders adduced in J u s tif ic a tio n of a war crime is
bound to take in to consideration th e fa c t . . . th a t / a member of th e armed
f o r c e s / cannot, in conditions of war d is c ip lin e , he expected to weigh
scrupulously the le g a l m erits of th e order receiv ed ."
In th e t r i a l of K arl Buck and te n others before a B ritis h M ilitary
Court a t W uppertal, from 6 to 10 May 1946, th e Judge Advocate, in
h is summing up, s a id th a t the Court must ask i t s e l f : "What did each of
th e se accused know about th e rig h ts of a prisoner of war? That i s a
m atter of f e e t upon which the court has to malte up i t s mind. The
court may w ell th in k th a t th ese men are not lawyers: they may not have
heard e ith e r o f the Hague Convention or th e Geneva Convention; they may

* I t a l i c s in s e rte d .
/n o t heve
not have seen any book of m ilita ry la v upon the subject; but the court
has to consider whether men who are serving e ith e r as so ld ie rs or in
proximity to so ld ie rs know as a m atter of the general fa c ts of m ilita ry
l i f e whether a prisoner of war has c e rta in rig h ts and whether one of
these rig h ts is not, when captured, to sec u rity fo r h is person.
I t is a question of fa c t fo r you."*
In the T ria l of Heinz Eck and four others by a B ritis h M ilitary
Court, Hamburg, I 7 - 20 October 19^5, (The Peleus T r ia l), four of the
accused re lie d on the plea of superior orders against a charge of k illin g
the survivors of a sunken ship. Professor Wegner, Defence Council fo r the
accused as a whole, pointed out th a t many ru le s of In te rn a tio n a l Law were
ra th e r vague and un certain . Could one decide to fin d an individual
g u ilty of having v io la te d a ru le .of In te rn a tio n a l Law i f the S tates
themselves had always qu arrelled about th a t ru le , i t s meaning and bearing,
i f they had never re a lly approached recognizing i t in common practice
and hardly knew anything precise concerning i t ? I f th e S ta te s did not
know, hew could the individual know? Counsel then went on to claim
th a t confusion ex isted in many branches of In te rra tio n a l Law including th a t
re la tin g to superior orders.
In h is summing up the Judge Advocate said: " It is quite obvious
th a t no s a ilo r and no so ld ie r can carry w ith him a lib r a ry of in te rn a tio n a l
law, or have immediate access to a professor in th a t subject who can t e l l
him whether or not a p a rtic u la r commend is a law ful one. I f th is were a
case which involved the carefu l consideration of questions of in te rn a tio n a l
law as to whether or not the command to f i r e a t h elp less survivors
struggling in the water was law ful, you might w ell th in k i t would not
be f a i r to hold any of the subordinate accused in th is case responsible
for what they are alleged to hove done."
(He then went on: "But is i t not f a i r l y obvious to you th a t i f in
fa c t the carrying out of Eck's command, involved th e k illin g of
these h elp less survivors, i t was not a law ful command, and th a t i t must
have been obvious to the most rudimentary in te llig e n c e th a t i t was not a
lawful command, and th a t those who did th a t shooting are not to be
excused fo r doing i t upon the ground of superior orders?")
For another Instance in which th e defence has not proved successful,
see the Canadian t r i a l of Robert Holzer and two o th e rs, mentioned on
page 238.

* I t a l i c s in serted
/8 . The Defence
8. The Defence of Mistake of Fact
Mistake of fa c t may, however, c o n stitu te a defence Ju st as i t may
in a t r i a l Le fore the ordinery munici-pal co u rts.
In the t r i a l of Karl Buch and te n o th ers, the counsel actin g fo r
the accused in General pointed out th a t in Germany th e re has been not
only co u rts-m a rtia l but also "so -called S.S. and police courts fo r
German persons and members of the S .S ." He claimed th a t the
in te rro g a tio n s of the victim s* by one Kommandefuhrer E rn st, on whose
re p o rts Dr. Is s e lh o rs t acted in deciding on the fa te of the victim s,
c o n stitu ted a t r i a l by the Security P o lice. The accused, who obeyed
the l a t t e r , had had no other inform ation on th e m atter than th a t the
prisoners had been tr i e d and condemned, and had acted on th a t assumption.
They had "neither th e sense fo r te c h n ic a litie s nor the mental a b ilitie s
to lool: deeper in to th is case". The prosecutor, on th e other hand,
submitted th a t the o b lite ra tio n of a l l tra c e s of th e crime and the steps
taken by the accused to suppress a l l knowledge of the crime b e lie d any
contention th a t they thought th a t they were performing a le g a l execution.
Lawful executions did not take place in woods, nor were those shot
bu ried in bomb c ra te rs w ith th e ir valuables, clothing and id e n tity
markings removed.
To the Judge Advocate th ere seemed to he no evidence th a t the
victim s were ever tr i e d before a Court. Dr. Is s e lh o rs t had s a id th a t
they were sentenced by d ecisio n pf E rnst and "not through a co u rt". I f
h is evidence was believ ed , they were condemned as a r e s u lt of an
adm inistrative decision and not a f te r a t r i a l .
Assuming th a t co-operation between c e rta in of th e victim s and
th e Maquis was not contrary to th e laws and usages of war and assuming
th a t the o rig in a l Fuhrerbefehl** was contrery to In te rn a tio n a l Law,
the ouostion whether or not the deceased had ever been subjected to
t r i a l to fin d whether they ceme w ithin the scope of the l a t t e r would
hardly seem re le v an t to the question of the le g a lity of the executions.
On the other hand, could i t have been shown th a t a bona fid e impression

* The victim s were B ritis h and United S tates prisoners of war, and
c e rta in French n a tio n a ls.
** See pages 231-2.
The Defence claimed th a t th e re was evidence th a t the victims
of th e shooting had esta b lish e d such contact w ith the Maquis end with
"T erro rists" as to b rin g them w ithin th e scope of the Fuarerbefehl,
and th a t a "se c u rity p olice case" preceded the execution.

/had existed
 e / cn.V w.19
Page 249

had e x iste d in th e minds of the accused th a t th e execution vas the

consequence of a t r i a l in vhich the victim s had been le g a lly condemned
to death, the plea of mistake of f a c t, vhich th e defence ra is e d , might
v e il have been e ffe c tiv e . In the circumstances of th e case, hovever,
tho Court did not see f i t to allow i t .
Also re le v an t are the follow ing: the t r i a l of Sub-Lt. Hideo Katayama
and two others before an A ustralian M ilita ry Court a t Morotai from
25 to 23 February 1946; t r i a l of Capt. Toma Ikeba and two others before
an A ustralian M ilita ry Court a t Babaul on 14 and I 5 May 1946; the
Neuengamne Concentration Camp t r i a l (see page 147); th e t r i a l of
Josef Muth and fiv e others before a B r itis h M ilita ry Court a t Wuppertal
on 4 and 5 June 1946; tho t r i a l of H einrich Klein and fourteen others
before a B ritis h M ilitary Court a t Wuppertal on 22 to 29 May 1946;
and the t r i a l of Karl Maria von Behren mentioned on page I71
9. Se lf Defence
Not unnaturally, a plea of s e lf defence may also be su ccessfu lly
put forward in su ita b le circumstances in war crime t r i a l s .
T ria ls which are relev an t in th is connection are: th e t r i a l of
Yamamoto Chusaburo before a B ritis h M ilitary Court a t Kuala Lumpur
on 30 January and 1 February 1946 (plea unsuccessful); th e t r i a l
of E rich Weiss and Wilhelm Munde before an American General M ilitary
Court a t Ludvigsburg on 9 and 10 November 1945 (p lea su ccessfu l); the
t r i a l of Georg H itzer before an American General M ilita ry Government .
Court a t Ludwigsburg on 11 March 1946 and the Canadian t r i a l s of
Johann N eitz and Robert Holzer and two o th e rs, mentioned on pages 174 and
238.

/e. the rights

 E/CH.V w.19
Tase 250

E. THE RIGHTS OF THE ACCUSEE AT THE TIME OF TRIAL

The ru le s re la tin g to evidence and procedure which are applied in

t r i a l s by courts o f the various c o u n trie s, and by the In te rn a tio n a l
M ilita ry Tribunals in Nrnberg and Tokyo, when viewed as a whole are seen
to represent an attem pt to secure to the accused h is rig h t to a f a i r t r i a l
while ensuring th a t the obviously g u ilty s h a ll not escape punishment because
of le g a l te c h n ic a litie s . C ertain ty p ic a l examples are examined in the
following paragraphs.*
1. Right of Accused to know the Substance o f the Charge
Paragraph (a) of A rtic le l 6 of the C harter of the Nrnberg International
M ilita ry T ribunal, which f a l l s under the heading:
IV. F a ir T ria l fo r Defendants, provides th a t:
"The Indictm ent s h a ll include f u l l p a rtic u la rs specifying in
d e ta il the charges ag ain st the Defendants. A copy of the Indictment
and of a l l the documents lodged w ith the Indictm ent, tra n s la te d into
a language which he understands, s h a ll be furnished to the refendant
a t a reasonable time before the T r ia l."
S im ilarly, A rtic le 9 (a) of Section I I I - F a ir T ria l fo r Accused - of
the Tokyo In te rn a tio n a l M ilita ry Tribunal runs as follow s:
"(a) Indictm ent. The indictm ent s h a ll c o n sist of a p la in , concise,
and adequate statement of each offence charged. Each accused sh a ll
be furnished, in adequate time fo r defence, a copy of the indictment,
including any amendment, and of th is C harter in a language understood
by the accused."
The P a c ific September and December Regulations and the China Regulations
fo r t r i a l s by United S tates M ilita ry Commissions a l l provide th a t: "The
accused s h a ll be e n title d : 'a . To have in advance of t r i a l a copy of the
charges and s p e c ific a tio n s, so worded a3 c le a rly to apprise the accused or
each offence charged ."
A sim ila r provision is made in A rtic le IV (a) of Ordinance No. 7 of
the M ilita ry Government of the United S tates Zone of Germany, under which
the Nrnberg Subsequent Proceedings are being held, and in A rtic le V of
Ordinance No. 2 under which M ilitary Government Courts were e sta b lish e d .

* The following sections are not intended to be a complete c o lle ctio n of texts,
and tlie f a c t th a t the law o f any given country i s not mentioned >inder one
of tho headings under which the subject m atter is divided does not
sig n ify th a t the rig h t d e a lt w ith is not safe-guarded in the le g a l system
o f th a t country.
/The equivalent
 e / cn.U/w.19
Page 251

The equivalent provision governing t r i a l s "by B ritis h M ilita ry Courts

is Rule of Procedure 15> which s ta te s th a t:
"15 (A). The accused, before he is arraigned, s h a ll be informed by
an o ff ic e r of every charge on which he i6 to be tr i e d . . . . the
in te rv a l between h is being so informed and h is arraignment should not
be le s s than tw enty-four hours. (B). The o ffic e r, a t the time of so
informing the accused, s h a ll give the accused a copy of the
charge-sheet, and where the accused is a so ld ie r, should, i f necessary,
explain the charge-sheet and charges to him, and should a lso , i f he is
i l l i t e r a t e , read the charges to him."
A rtic le I 79 o f the French Code de Just-c-; M ilita ire provides th a t an
alleged war crim inal ordered to appear before a M ilita ry Tribunal
established in a t e r r i t o r i a l d i s t r i c t in a s ta te o f war must, tw enty-four
hours a t le a s t before the meeting th e re o f, receive n o tif ic a tio n o f the .
summons containing the order o f convocation of the Court as w ell as the
indication o f the crime or d e lic t allegod, the te x t of the law applicable
and the names of the w itnesses which the prosecution proposed to produce.
2. Bight of Accused to be Fresent a t T ria l and to give Evidence
A rtic le l6 (e) of the Charter of the Nrnberg In te rn a tio n a l M ilita ry
Tribunal provides th a t:
"A Eefondant s h a ll have the rie h t through him self or through h is
Counsel to present evidence a t the T ria l in. support of h is defence, and
to cross-examine any witness called by the Prosecution."
A rtic le 9 (d) of the Charter of the In te rn a tio n a l M ilita ry Tribunal
for the Far E ast runs as follow s:
"d. Evidence fo r Defence. An accused s h a ll have the rig h t,
through him self or through h is counsel (but no through b o th ), to conduct
h is defence, including the rig h t to examine any w itness, su b ject to such
reasonable r e s tr ic tio n s as the Tribunal may determ ine."
Rule of Procedure IfO makes the following provision re la tin g to t r i a l s
by B ritis h M ilita ry Courts:
"1*0 (A). At the close of the evidence fo r the prosecution the
accused s h a ll be to ld by the court th a t he may, i f he wishes, give
evidence as a w itness, but th a t i f he gives evidence he w ill subject
him self to cross-exam ination."
The p ra c tic e is fo r the Judge Advocate o r, i f there is none, the
President o f the Court, to t e l l the accused th a t he has three a lte rn a tiv e s :
to give evidence on oath, to make a statem ent not on oath or to remain
sile n t, and to explain to him h is p o sitio n along the lin e s s e t out in the
following footnote to Rule of Procedure Uo (A) :
"The Judge Advocate o r, i f there is none, the p resid en t must
/ex p lain
 e / cn.U/w.19
Pag 252

explain in simple language to the accused, e sp e c ia lly i f he is not

represented by counsel or defending o ffic e r, th a t he need not give
evidence on oath unless he wishes to do so. He must also be to ld
th a t i f he Gives sworn evidence he is lia b le to be cross-examined
by the prosecutor and questioned by the court and Judge advocate.
He should a lso be informed th a t evidence upon oath w ill n a tu ra lly
carry more weight w ith the court than a more statem ent not upon
o a th ."
The r ig h t of an accused to appear a t h is own t r i a l and to give
evidence i f he pleases is also safe-guarded, e ith e r e x p lic itly o r
im p lic itly , by the reg u latio n s governing t r i a l s by United S tates M ilitary
Commissions, M ilita ry Government Courts and M ilita ry T ribunals.
3 Bight of Accused to have the Aid of Counsel
A rtic le 16 (d) of the C harter of the In te rn a tio n a l M ilita ry Tribunal
provides th a t:
"(d) A Defendant s h a ll have the rig h t to conduct h is own defence
before the Tribunal or to have the assistan ce of Counsel."
A rtic le 9 (c) o f the C harter o f the In te rn a tio n a l M ilita ry Tribunal
fo r the Far IJast seems to go even fu rth e r, in view of i t s f in a l sentence:
"(c) Counsel fo r Accused. Each accused s h a ll have the rig h t to be
represented by counsel of h is own se le c tio n , su b ject to the
disapproval of such cotinsel a t any time by the T ribunal. The accused
s h a ll f i l e w ith the General Secretary of the Tribunal the name of his
counsel. I f an accused i s not represented by counsel and in open
court requests the appointment o f counsel, the Tribunal s h a ll designate
counsel fo r him. In the absence of such request the Tribunal may
appoint counsel fo r an accused i f in i t s judgment such appointment is
necessary to provide fo r a f a i r t r i a l . "
R egulation 7 o f the Royal Warrant provides th a t Counsel may appear on
beh alf of the Prosecutor and accused in lik e manner as i f the M ilita ry
Court were a General Court M artial. The appropriate provisions of the Rules
o f Procedure, 1926, apply accordingly. In p ra c tic e accused persons trie d as
war crim inals are defended e ith e r by advocates of th e ir own n a tio n a lity or
by B ritis h serving o ffic e rs appointed by the Convening O fficer, who may or
may not be law yers.
The re le v an t United S ta te s provisions assure a sim ila r r ig h t to the
accused. The following provision is contained in A rtic le 5 (b) o f the
P a c ific December R egulations:
"The accused s h a ll be e n title d : . . . .To be represented, p rio r to
and during t r i a l , by counsel appointed by the convening au th o rity or
counsel of h is own choice, or to conduct h is own defence.
' /"To te s tif y
 e / cn.U/w.19
Page 253

"To t e s t i f y in h is own b eh alf and have h is counsel present

re le v an t evidence a t the t r i a l in support of h is defence, and
cross-examine each adverse w itness who personally appeared before
the commission."
The corresponding wording in the China Regulations (A rticle lh (b )),
even contains a mandatory element:
"The accused Bhall be e n title d : . . . .To be represented p rio r to
and during t r i a l by counsel of h is own choice, or to conduct h is own
defence. I f the accused f a i l s to designate h is counsel, the commission
s h a ll appoint competent counsel to rep resen t or advise the accused."
( i t a l i c s in s e r te d ).
S im ilarly, A rtic le IV (c) of Ordinance Ho. 7 of the United S tates Zone
of Germany provides th a t a M ilita ry Tribunal s e t up thereunder " . . . . s h a l l
appoint q u a lifie d counsel to represen t a defendant who is not represented
by counsel of h is own se le c tio n ", and the P o lish Decree of 31 October 1 9 ^ ,
on the establishm ent of a Supreme N ational Tribunal lays down in i t s
A rticle 12 (1) th a t:
"At the t r i a l , the defendant must appear w ith counsel. I f he
does not appoint one, the P resident o f the Supreme N ational Tribunal
i s to appoint a counsel ez o ffic io from among the advocates re sid in g
in Poland.*'
Again, under A rtic le s 99, 101 and I 07 of the Norwegian General Law
No. 5 o f 1 Ju ly 1887, on Criminal Procedure, which i s applied in war crime
tr ia ls before Norwegian Courts, the Court o f f ic ia lly appoints a Counsel
at the S ta te 's expense to defend an alleg ed war crim inal; th is Counsel is
usually th a t already chosen or engaged by the accused.
If. The Right o f the Accused to have the Proceedings made I n te llig ib le to
him by In te rp re ta tio n
Most persons accused of war crimes do not speak the same language as
the members o f the court, or o f most of the w itnesses (p a rtic u la rly those
called by the Prosecution) or of counsel. Consequently the question of
making the proceedings in te llig ib le to the qccused u su ally a ris e s .
A rtic le 16 (c) o f the Charter of the In te rn a tio n a l M ilitary Tribunal
states th a t:
"A prelim inary examination of a Defendant and h is T ria l s h a ll be
conducted in , or tra n s la te d in to , a language which the Defendant
understands."
A rtic le 9 (b) of the Charter of the In te rn a tio n a l M ilita ry Tribunal
for the Par L ast provides as follow s:
"b. Language. The t r i a l and re la te d proceedings s h a ll be
conducted in English and in the language of the accused. T ranslations
/o f documents
 E/CJ.V w.19
Page 25I+

of documents and other papers s h a ll he provided as needed and requested."

In A rtic le 9> the United S tates European D irective lays down th a t:
"The accused s h a ll have the rig h t to have the proceedings of the
commission in te rp re te d in to h is own language i f he so d e sire s ."
The P a c ific September Regulations in A rtic le 1^ (d) provide th a t the
accused s h a ll be e n title d :
"To have the charges and sp e c ific a tio n s, the proceedings and any
documentary evidence tra n s la te d when he is unable otherwise to understand
them."
The China and P acific December Regulations contain the same ru le ,
except th a t the l a t t e r makes reference to "the substance of the charges and
sp e c ific a tio n s" in stead of "the charges and sp ec ific a tio n " , while sim ilar
provisions are made by A rtic le s IV (a) and (b) of Ordinance No. 7 .*
An examination of the records of war crime t r i a l s in d ic a tes th a t th is
rig h t of the accused has been w ell preserved.
Thus, in the Belson T r ia l, immediately before the hearing of the
evidence of the Prosecution w itness Dr. Ada Bimko, Lieutenant Jodrzejowicz,
Defence Counsel to the Polish accused, said th a t, i f the w itness gave
evidence in German, he would not require i t to be tra n s la te d in to P olish.
The Judge Advocate f e l t bound to advise the Court th a t in h is view,
in th is p a rtic u la r kind of Court, the accused must hear the evidence in
the language which they could understand. Counsel could no t p o ssib ly know
how to cross-examine except on in s tru c tio n s from the accused whom he
represented and h is in s tru c tio n s must n e c e ssa rily be determined by the
evidence. The Judge Advocate advised the Court th a t he did no t think
th a t anybody should waive the rig h ts of a person who did not understand
a language when serious accusations of f a c t were being made. The Defending
O fficers were no doubt endeavouring to shorten the proceedings but he thought
th a t the suggestion would be wrong in law.
The Court decided th a t the evidence mut be tra n s la te d in to Polish
so th a t the Polish acvued would understand i t , except in any case where a
p a rtic u la r w itness was c a lle d to make a sp ec ific accusation ag ain st one or
two of the German accused and th ere was no question of th a t w itness raising
any point ag ain st the Polish accused. In cases where the P olish accused
might be im plicated by the w itness, however, the evidence must be tran slated
in to P o lish .
Again, in the t r i a l of E rich K illin g e r and four o th ers by a B ritis h
M ilita ry Court, Uuppertal, 26 November - 3 December 19^5> presumably since
they were ex-members of an in te rro g a tio n centre the accused a l l had a
knowledge of E nglish. The Court, a f te r receiving a reassurance on the point
/from the Defence,
* See page 251.
 e /CN.U/w.19
Page 255

from the Defence, perm itted the n o n -tran slatio n of the o ra l evidence from
English in to German, while a t the same time s ta tin g th a t a tra n s la tio n
would he provided should any accused ask fo r i t .
Some in d ic a tio n o f the lim its beyond which the courts would not be
prepared to go in th is m atter i s provided, however, by the T ria l of
Oberleutnant Gerhard Grumpelt by a B ritis h M ilita ry Court held a t Hamburg,
German;,', on 12 and 13 February 19*16.* At the very o u tset of the proceedings,
defending Counsel applied fo r the whole of the proceedings to be tra n sla te d
to the accused. Counsel sta te d th a t he would him self address the Court
and speak during the whole t r i a l in Gorman.
The Judge Advocate thereupon explained the p o sitio n as follows:
"The language of the Court is English, and i t is q u ite unusual
fo r the Court to bo addressed in German. What we normally do is to
tra n s la te a l l the evidence so th a t the accused understands i t , but i t
i s quite unusual to tra n s la te everything the defending Counsel says."
A fter ascertain in g th a t Counsel had some knowledge of English, the
Judge Advocate requested th a t Counsel should do h is b e st to address the
Court in English, and so f a r as the evidence was concerned, th a t would be
tra n slated to the accused. The defending Counsels rep ly was as follow s:
"I must i n s i s t upon i t th a t a l l the most important p a rts which
w ill be decisive fo r the judges to judge Gerhard Grumpelt must be
in the German language, and I must i n s i s t th a t the German language
should be acknowledged here as having the same rig h ts as the English
language. I am q u ite s a tis f ie d th a t things which are not important
need not bo tra n s la te d so th a t the proceedings should not be unduly
in te rru p te d , but my opening and closing speech, which are d ecisiv e,
I s h a ll give in German."
A fte r the Court had conferred, the .Judge Advocate p ro v isio n ally
ruled th a t a l l the evidence would be tra n s la te d , bu t th a t the P ro secu to r's
opening address should not be tra n s la te d in the ordinary way. Counsel
stated th a t tld.3 was agreeable to him and added th a t he understood enough
EngH ah to follow the Prosecutor, bu t not enough to deal with the w itnesses
when in the w itness box or in h is addresses to the C ourt. In f a c t, the
defending Counsel's short opening address was made in German and tra n s la te d
at once, and the German te x t of h is f in a l address, w ritte n by him self,
is ettached to tho proceedings.
The in te re s ts o f the accused in th is case were fu lly safeguarded by
the f a c t th a t.tw o , and l a t e r on, during the evidence fo r the defence, a
further th re e , o ffic e rs and so ld ie rs were d e ta ile d to a c t as in te rp re te rs .

* The S cu ttled U-Boats Case, see War Crime T r ia l Law Reports, Vol. I ,
pages 95-70.
/ i t is to be noted
 E/CH.^fa.l9
Page 2j6

I t is to bo noted th a t the rule* of procedure as sp ecified in the

Royal Warrant do not contain any express provision e ith e r as to the
language of the M ilita ry Courts try in g war crimes cases, or as to the
rig h ts of tho accused and d u ties of the defending Counsel as to the
language in which they should address the co u rt.
Tho rulos of procedure followed in war crimes t r i a l s by B ritis h
M ilita ry Courts are w ith c e rta in exceptions those followed in English
c i v i l c o u rts. I t seems beyond doubt th a t an English Court would have a
rig h t to i n s is t on Counsel addressing i t in E nglish. The English law
on the rig h ts of a non-English speaking accused 1b a t present contained
in an o b ite r dictum o f Lord Reading, C. J . , in R. v. Lee Run (191IS) 1 K.B.
337, to tho following e ffe c t: When a fo reig n er who i s ignorant of the
English language is on t r i a l on an indictm ent fo r a crim inal offence, and
is not defended by Counsel, the evidence given a t the t r i a l must be
tra n s la te d to Mm, and compliance w ith th is ru le cannot be waived by
p riso n e r. I f he is defended by Counsel, the evidence must be tra n sla te d
to him unless he or h is Counsel express a wish to dispense w ith the
tra n s la tio n and the Judge thinks f i t to permit the omission, b u t the
judge should not perm it i t unless he is of opinion th a t tho accused
s u b s ta n tia lly understands the nature o f the evidence which is going to be
given ag ain st him.
The a c tio n o f the Court in the Grumpelt t r i a l could in any case be
fu lly explained by reference to two relev an t p ro v isio n s. Regulation 13 of
the Royal Warrant s ta te s th a t "In any case not provided fo r in these
Regulations such course w ill be adopted as appears b e st c alc u la te d to do
J u s tic e ." The same is provided by Rule 132 of the Rules o f Procedure made
under the a u th o rity of the Army Act.
5. Rules Regarding Appeal and Confirmation
An accused may be fu rth e r preserved from any kind of summary treatment
by provisions re la tin g to appeal and confirm ation.
While A rtic le 26 of tho Charter of the In te rn a tio n a l M ilita ry Tribunal
s ta te s th a t: "The Judgment of the Tribunal as to tl.e g u ilt or the
innocense of any Defendant s h a ll give the reasons on which i t is based, and
s h a ll bo f in a l and not subject to review", A rtic le 29 provides fo r possible
in terv en tio n by a higher agency in the determ ination of sentence: "In case
of g u ilt, sentences s h a ll be c a rrie d out in accordance w ith the orders of
the Control Council fo r Germany, which may a t any time reduce or otherwise
a l t e r the sentences, b u t may not increase the s e v e rity th e r e o f .,.."
While tho question o f appeal is not s p e c ific a lly mentioned in the
A rtic le , various of those sentenced a t Nrnberg did in f a c t appeal to the
Control Council fo r Germany, though without success.
/S im ila rly
 E/CNA/w .19
Page 257

S im ila rly A r tic le 17 o f th e C h arter o f th e I n te r n a tio n a l M ilita ry

T ribunal f o r tho F a r E a s t c o n ta in s th e fo llo w in g passage:
"Judgment and Heview. The judgment w ill be announced in open
c o u rt and w i l l give th e reaso n s on which i t i s b ased . The reco rd
o f th e t r i a l v i l l be tra n s m itte d d ir e c tly to the Supreme Commander
f o r th e A llie d Powers f o r h is a c tio n . Sentence w ill be c a r rie d
c u t in accordance w ith th e Order of th e Supreme Commander f o r th e
A llie d Powers, who may a t any time reduce o r o therw ise a l t e r tho
sen ten ce, except to in c re a se i t s s e v e r ity ."
No r ig h t o f appeal in th e o rd in a ry sense o f th a t word e x is ts a g a in s t
the d e c is io n o f a B r i t i s h M ilita ry C ourt. The accused rar.y, however, w ith in
f o r ty - e ig h t hours o f th e te rm in a tio n o f proceedings in C ourt, give n o tic e
of h is in te n tio n to submit a p e t i t i o n to th e Confirming O ffic e r a g a in s t th e
fin d in g o r th e sentence o r b o th , and the p e h jbien moui be subm itted w ith in
fo u rtee n days. I f i t i s a g a in s t th e fin d in g i t must be r e f e r r e d by th e
Confirming O ffic e r to th e Judge Adveca'.e G eneral or to h is d ep u ty .#
C onfirm ation by h ig h e r m ilit a r y a u th o r ity i s in any case n e c e ssa ry .
The fin d in g and any sentence which th e Court had j u r i s d i c t i o n to p a ss , i f
confirmed, a re v a lid , n o tw ith stan d in g any d e v ia tio n from th e R eg u latio n s o r
the Rules o f Procedure o r any d e fe c t o r o b je c tio n , te c h n ic a l o r o th e r.
An ex ce p tio n e x is t s only in th e case where " i t appears t h a t a s u b s ta n tia l
m iscarriag e o f J u s tic e has a c tu a lly o ccu rred ."* P ro v isio n f o r re v io v
by h ig h e r m ilit a r y a u th o r ity i s a ls o made in A r tic le 5 o f th e A ustraliern
War Crimes Law.
S im ila r ly , th e sentence o f a U n ited S ta te s M ilita r y Commission must
not be c a r r ie d in to e x ec u tio n u n t i l i t has been approved by th e a p p o in tin g
a u th o rity . Death sen ten ces m ust, in a d d itio n , be confirm ed a ls o by the
Theatre Commander. The approving and confirm ing a u th o r itie s have b e fo re
them, in a c tin , a review and recommendation by th e a p p ro p ria te Judge
Advocate. Thus, w hile no "appeal" a s t h a t term i s used In J u d ic ia l
proceedings i s proviued f o r , every re c o rd o f t r i a l i s s c r u tin iz e d as to
the f a c ts and p o in ts o f law, and th e Commanding G eneral has tr a in e d le g a l
advice as to th e r i g h t course to ta k e .
A person c o n v icted by a U nited S ta te s M ilita r y Government Court has
the r ig h t to p e t i t i o n f o r review o f th e fin d in g o r s e n te n c e . The p e titio n
must be f i l e d w ith th e Court w ith in te n days o f c o n v ic tio n .
No sentence o f a M ilita ry Government Court s h a ll be c a r r ie d in to
execution u n t i l th e case re c o rd has been examined by an A rm y/M ilitary
D is tr ic t Judge Advocate and th e sentence approved by th e o f f ic e r ap p o in tin g
the Court o r by th e O ffic e r Commanding f o r th e time b e in g . No sentence
of death s h a ll be c a r r ie d in to e x ec u tio n u n t i l confirm ed by h ig h e r a u th o r ity .

* R egulation If* o f th e Royal W arrant. /The review ing

** pa.-ulft1.1nn 11 n f K n -sn 1U nrraiit
 e / cn,V v m 9
Page 258

The reviewing a u th o rity nay, upon review, in te r a l i a ,

confina or s e t aside any finding,
su b stitu te the finding of g u ilty by an amended charge,
confina, suspend, reduce, commute or modify any sentence
or order, or
increase any sentence, whore a p e titio n fo r review vhich
is considered friv o lo u s has been f il e d and the
evidence in the case warrants such in crease.
The reviewing a u th o rity may a t any time rem it or suspend any sentence
or p a rt th e re o f.
The proceedings s h a ll not be in v alid ated nor any fin d in g s o r sentences
disapproved fo r any e rro r or omiseion, te ch n ica l o r otherw ise, occurring at
any such proceedings, unless in the opinion of the reviewing a u th o rity i t
s h a ll appear th a t the e rro r or omission has re s u lte d in in ju s tic e to the
accused. Provision i s made in A rtic le XVII of Ordinance No. 7 f o r the
review by higher m ilita ry a u th o rity of decisions of United S ta te s M ilitary
T rib u n als.
A war crim inal sentenced by a Norwegian Lagmannsrett has th e rig h t to
appeal to the Supreme Court of Norway on po in ts of Law o r on the question
of the s e v e rity of sentence, hu t not on the f a c ts .
French Law makes provisions regarding appeals from French M ilita ry
Tribunals of which persons condemned by the Permanent M ilita ry Tribunals
can a v a il themselves.
In time of war, according to the provisions o f a Decree o f
3 November 1939# Permanent M ilita ry Appeal Tribunals are to be s e t up,
th e ir number, s e a t and J u ris d ic tio n being fix e d by decree. They are to
deal only w ith cases involving persons convicted by M ilita ry T rib u n als.
A rtic le 139 of the Code de J u stic e M ilita ire s ta te s th a t such persons sh all
have tw enty-four hours during which they may appeal to such a co'Urt. This
period begins to run a t the end of the day on which the Judgment of the
M ilita ry Tribunal Is xd.
Thi6 appeal to a Permanent M ilitary Appeal T ritu n a l is the only one
possible in'w ar time ag ain st a decision of a Permanent M ilita ry Tribunal.
The former, in accordance w ith A rtic le 133 of the Code do Ju stic e M ilitaire
is not concerned with reviewing the whole t r i a l conducted by the in fe rio r
trib u n a l, but only w ith finding whether the Judgment d eliv ered thereby
c o n stitu te d a c o rre ct ap p lic atio n of the la v .*
A rtic le 13^ s ta te s th a t: "M ilitary Appeal Tribunals can annul
decisions only in the following cases:
(l) when the M ilita ry Tribunal has not been composed in accordance
with the provisions of the Cod,

* The Permanent M ilita ry Appeal Tribunal does n o t, therefo re,, enquire into
mere questions of f a c t.
/ ( 2) vhen the rules of
 E/CN.VW-19
Page 259

(2) -when the ru le s of competence have "been v io la te d ,

(3) when the penalty la id down by the law has not been applied to
tho a c ts declared to be proved by the M ilitary Tribunal or
when a penalty has been pronomced which goes beyond the cases
sta te d by the law.
(L) when there has been a v io la tio n or omission of the fo rm alities
la id down by law as a condition of v a lid ity , and
(5) when the M ilita ry Tribunal has omitted to decide upon a request
o f the accused, o r an a p p licatio n of the Public Prosecutor, which
aims a t making use o f a power or a rig h t accorded by the law ."
According to the provisions o f the Decree o f 3 November 1939:
"In a l l cases where a M ilita ry Appeal Tribunal has been esta b lish e d ,
persons sentenced by M ilita ry Tribunals cannot appeal to the Court of
Appeal (Cour de CacGation) ag ain st the decisions of M ilita ry Tribunals
and o f M ilita ry Appeal T ribu n als. "
In peace-tim e,* in accordance with A rtic le 100 of the Code de
Justice t a i l t a i r e , Judgments deliv ered by M ilita ry Tribunals can only be
challenged by way of an appeal to the Court of Appeal, fo r the reasons and
under the conditions s e t out by A rtic le U07 e t seq of the Code d 'in s tru c tio n
Crim inelle. A convicted person has three whole days, a f te r th a t on which
his sentence has been n o tifie d to him, in which to inform the Clerk of
the Court of h is d esire to appeal.
Provision is made fo r a rig h t of appeal also in A rtic le l6 of the
Yugoslav War Crimes Law of 25 August 19^5, and A rtic le 15 of the Polish
Law of 31 October 19^6, e sta b lish in g the Supreme N ational Tribunal
provides fo r an apjjeal fo r mercy to the President of the N ational Counsel.
Provision fo r review by higher a u th o rity is made by tho second of these
provisions and by A rtic le XXXII of the Chinese War Crimes Law of
2k October iyk 6 .
6. S tress placed on Expeditious Procedure
Tho care shovn in ensuring to the accused h is e s s e n tia l rig h ts
during t r i a l i s balanced by an attem pt a t ensuring th a t ther.; s h a ll be no
unnecessary delays a ris in g out of purely tech n ical d isp u tes.
A rtic le 12 of the Charter of the In te rn a tio n a l M ilita ry Tribunal
for the Far East mokes the following provisions in i t s paragraphs ti - c
(which are s u b sta n tia lly the same as those made in A rtic le 18 of the
Charter of tho Nrnberg In te rn a tio n a l M ilita ry T ribunal):
"Conduct of T r ia l. The Tribunal s h a ll:
(a) Confine the tr* a.1 s t r i c t l y to on expeditious hearing o f the
issu es ra is e d by the chcrges.
(b) Take s t r i c t measures to prevent any actio n which would cause

The le g a l dato of the end o f war time i s , fo r purposes of French Law,

1 Juno 19^6. ,
;rreasonable
/ a - , -
 any unreasonable delay and ru le out ir r e v lan t issu es and statements
of any kind whatsoever.
(c) Provide fo r the maintenance of order a t the t r i a l and deal
hiiubk-m 1 y with any contumacy, imposing appropriate punishment,
including exclusion of any accused or h is counsel from some or all
fu rth o r proceedings, hu t w ithout prejudice to the determ ination of
the charges."
Sim ilar provisions were la id down by the P acific September and December
and by the China Regulations and by Ordinance No. 7 of the M ilita ry Government
of the United S tates Zone of Germany.
The c le a re s t examples of the attem pt to avoid m iscarriage of Justice
through unnecessary le g a l te c h n ic a lity are provided by the ru le s of
evidence applied in war crime t r i a l s , to which a tte n tio n is now turned.
7. Rules of Evidence ln Genoral
In general the rulcB of evidence applied in War Crime t r i a l s are
le ss tech n ical than those governing the proceedings of courts conducting
t r i a l s in accordance w ith the ordinary crim inal law. This is not to say
th a t any u nfairness is done to the accused; the aim has been to ensure
th a t no g u ilty person w ill escape punishment by ex p lo itin g te c h n ic a l ru les.
The circumstances in which war crime t r i a l s are o ften held make i t necessary
to dispense w ith c e rta in such ru le s . For instance many eye w itnesses
vhosc evidence was needed in t r i a l s in Europe had in the meantime returned
to th e ir homes overseas and been demobilized. To tra n sp o rt them to the
scene o f t r i a l would not have been p r a c tic a l, and i t was fo r th a t reason
th a t a ffid a v it ovidonce waB perm itted and so widely used. In the Belsen
t r i a l , the Prosecutor pointed out th a t although the t r i a l was held under
B ritis h law, the Regulations had made c e rta in a lte ra tio n s in the laws of
evidence fo r the obvious reason th a t otherwise many people would be bound
to escape Ju stic e becauso o f movements of w itnesses. A number of
a ffid a v its had been taken from cx-prisonors from Belsen, but many of the
deponents had since u^w_ppeared. Therefore the Prosecution would c a ll
a l l the w itnesses av ailab le and would then put the a ffid a v its before
the Court and ask fo r the evidence contained th e re in to be acccptod.
A rtic le 13 (Evidence) o f the C harter o f the M ilita ry Tribunal fo r the
F ar East provides as follow s:
"(a) A dm issib ility . The Tribunal s h a ll not be bound by technical
ru le s of evidence. I t s h a ll adopt and apply to the g re a te s t possible
e::tent expeditious and non-technical procedure, and s h a ll admit any
evidence which i t deems to have probative value. A ll purported
admissions or statem ents of the accused are adm issible."*

* w ith the exception of the omission o f the f in a l sentence, A rtic le 19

of the Charter of the In te rn a tio n a l M ilita ry Tribunal of Nrnberg has
the some wording. /The PresideR t.s
 E/CNA/V.19
Pago 2ol

The ProB idcns ordor o f 2 Ju ly 1$A2, appointing a M ilita ry Commission

for the t r i a l of the alleged saboteurs,* included the provision th a t "Such
evidence s h a ll bo admitted as would, in the opinion o f the P resident of the
Commission, have p robativevalue to a reasonable man." The provisions la id
down in overseas th e a tre s were c le a rly influenced by tills d ra ftin g .
The M editerranean Regulations (Regulation 10) provide expressly th a t
the tech n ical ru le s of evidence s h a ll not be applied bu t any evidence s h a ll
be admitted which, in the opinion o f the p resid en t of the Commission, lias
any probative value to a reasonable man. S im ilar provisions are contained in
paragraph 3 o f the European D irectiv e, in Regulation 16 o f the P a c ific
September R egulations, in Regulation 5 (d) o f tho SCAP Rules and in
Regulation 16 of the China Regulations.
In the Mediterranean Regulations i t is added th a t w ithout lim itin g the
scopo of th is ru le the following in p a rtic u la r w ill apply:
"(a) I f any witnoBS is dead o r is unable to a tte n d o r to give
evidence or i s , in the opinion of the p resid en t of the commission,
unable to atte n d without undue dolay, the commission may receive
secondary evidence of statem ents made by or a ttrib u te d to such
w itn e ss.
"(b) Any document purporting to have been signed or issued
o f f ic ia lly by any member of any a llie d or enemy force or
by any o f f ic ia l or agency o f any a llie d , n e u tra l or enemy
government 3hall be adm issible as evidence w ithout proof o f the
issue or signature th e re o f.
"(c) Any re p o rt by any person when i t appears to the president
of the Commission th a t the person in making the re p o rt was actin g
w ithin the scope of h is duty may bo admitted in evidence.
"(d) Any deposition o r record of any m ilita ry trib u n a l may be
admitted in evidence.
"(e) Any d iary, l e t t e r o r oth er document may be received in
evidence as to the fa c ts th e re in s ta te d .
"(f) I f any o rig in a l document cannot be produced, o r, in the
opinion of the president o f the commission, cannot be produced
without undue delay, a copy or tra n s la te d copy of such document
or o th er secondary evidence of i t s contents may be received in
evidence. A tra n s la tio n of any document w ill be presumed to be
a co rrect tra n s la tio n u n til the contrary is shown.
"(g) Photographs, p rin ted and mimeographed matter., and true
copies of papers are adm issible w ithout proof.

The Ca3e Ex P arte Q uirin, 317 U .S .l (19^2). /"(h ) Confessions

 "(h) Confessions are adm issible without proof o f circumstances or
th a t they were v o lu n ta rily made. The circumstances surrounding
the taking of a confession may be shown by the accused and such
showing may be considered in respect of the weight to be accorded
i t , but not in resp ect of i t s a d m is sib ility ."
Sim ilar but not id e n tic a l provisions are contained in other United
S tates instrum ents and in the Charters of the In te rn a tio n a l M ilitary
T ribunals. A rtic le V I I of Ordinance No. 7 of the United S tates Zone in
Germany provides th a t;
"The trib u n a ls s h a ll not be bound by tech n ical ru le s of
evidence. They s h a ll adopt and apply to the g re a te s t possible
ex ten t expeditious and non-technical procedure, and s h a ll admit
any evidence which they deem to have probative v a lu e . Without
lim itin g the foregoing general rules,, the following s h a ll be deemed
adm issible i f they appear to the trib u n a l to contain inform ation
of probative value re la tin g to the charges: a ffid a v its , depositions,
in te rro g a tio n s, and other statem ents, d ia rie s , l e t t e r s , the records,
fin d in g s, statem ents and Judgments of the m ilita ry trib u n a ls and
the reviewing and confirming a u th o ritie s o f any o f the United Nations,
and copies of any document or o th er secondary evidence o f the contents
of any document, i f the o rig in a l is n o t re a d ily av ailab le or cannot
be produced w ithout delay. The trib u n a l s h a ll a ffo rd the opposing
p a rty such opportunity to question the a u th e n tic ity or probative
value of such evidence as. in the opinion of the trib u n a l the ends of
Ju stic e re q u ire ."
In the P a c ific recembcr Rules i t is also provided (Regulation 5 (d) (2))
th a t the Commission s h a ll take ju d ic ia l n otice of the fa c ts of common
knowledge, o f f ic ia l government documents o f any ra tio n and the proceedings,
records and findings of M ilita ry or other Agencies of any of the United
N ations, a provision which corresponds to A rtic le 21 of the Charter of the
In te rn a tio n a l M ilita ry Tribunal, annexed to the Four-Power Agreement of
8 August 19^5, and which i s a lso sim ilar to A rtic le IX of Ordinance No. 7
of the M ilita ry Government o f the United S ta te s Zone o f Germary.
The Royal Warrant provides th a t, except in so f a r as th e re in otherwise
provided, the Rules of Procedure applicable in a F ie ld General Court Martial
o f the B ritis h Army s h a ll be applied so f a r as applicable to the M ilitary
Courts fo r the t r i a l of war c rim in a ls. In so f a r as ru le s of evidence
are concerned exceptional provisions are made by paragraph 8 (i) and 8 (ii)
o f the Royal Warrant. O f these the former runs as follows ( i t s opening
words being su b sta n tia lly the same as A rtic le 9 (i) o f the A ustralian War
Crimes A ct):*

* Regarding Regulation 8 ( i i ) , see page 105.

/" 8 ( 1) At any
 E/CN.U/W.19
Page 263

"8 (i) At any hearing before a M ilitary Court convened under these
regulations the Court may talie in to consideration any o ra l statement or
any document appearing on tho face of i t to be au th en tic, provided the
statement or document appears to the Court to be of assistan ce in proving
or disproving the charge, notw ithstanding th a t such statement or document
would not be adm issible as evidence in proceedings before a F ie ld General
Court M artial, and w ithout prejudice to the g e n e ra lity of the foregoing in
p a rtic u la r:
(a) I f any w itness is doad o r is unable to atten d or to give
evidence or is , in the opinion of the Court, unable so to atten d
w ithout undue delay, the Court may receive secondary evidence
o f statem ents made by or a ttrib u ta b le to such w itness,
(b) any document purporting to have been signed or issued o f f ic ia lly
by any member of any A llied or enemy force or by any o f f ic ia l or
agency of any A llied , n e u tra l or enemy government, s h a ll be adm issible
as evidence without proof of the issue or signature th ereo f;
(c) the Court may receive as evidence of the fa c ts th e re in sta te d
any re p o rt of the "Comit In te rn a tio n a l de la Croix Rouge" o r by any
re p re se n ta tiv e th ereo f, by any member of tho medical profession o r
o f any medical serv ice, by any person actin g as a "man o f confidence"
(homme de confiance), o r by any oth er person whom the Court may consider
was acting in the course of h is duty whon making the re p o rt;
(d) the Court may receive as evidence of the fa c ts th e re in sta te d
any depositions o r any record of any m ilita ry Court of Inquiry or
(any Summary) of any examination made by any o f f ic e r d e ta ile d fo r the
purpose by any m ilita ry au th o rity ;
(e) the Court may receive as evidence o f the fa c ts th e re in sta te d
any d ia ry , l e t t e r or other document appearing to contain inform ation
re la tin g to the charge;
(f) i f any o rig in a l document cannot be produced o r, in the opinion
of the Court, cannot be produced w ithout undue delay, a copy of
such document o r o th er secondary evidence of i t s contents may be
l'eceived in evidence;
I t s h a ll be the duty of the Court to Judge of the weight to be
attached to any evidence given in pursuance of th is Regulation which would
not otherwise be adm issible." S u b sta n tia lly the same is provided by
A rticle 10 ( l) and (2) of the Canadian War Crimes Regulations.
A study of the a p p licatio n of these ru le s shows th a t the p ractice
of the Courts has been to in te rp re t them widely, so as to render admissible
a considerable range of evidence and to allow the Court then to decide what
weight to place on each item.
/8 . The A dm issibility
 E /C N .yv.l9
Page 26b

8. The A dm issibility of A ffidavits

Much re lia n ce as evidence has been placed during war crime t r i a l s on
a f f id a v its , th a t i s to say on w ritten sworn and signed statem ents by a
w itness. Defence Counsel have more than once p ro te sted ag ain st such
evidence, mainly on the ground th a t, unlike a w itness in the box, an
a f f id a v it cannot be cross-examined, but th ere can be no doubt as to th e ir
a d m is sib ility a t le a s t in proceedings before such courts as operate under
the ru le s quoted under the l a s t heading.
In th is connection c e rta in arguments which arose during th e Belsen
T r ia l are worth quoting, since the way in which they were decided strongly
influenced tho B ritis h p ra c tic e in subsequent t r i a l s .
In h is Opening Speech, the Prosecutor pointed out th a t although
the t r i a l was held under B ritis h law, the Begulations had made c e rta in
a lte ra tio n s in the laws of evidence fo r the obvious reason th a t otherwise
many people would be bound to escape ju s tic e because o f movements of
w itnesses. A number o f a ffid a v its had been taken from ex-prisoners
from Belsen, but many of the deponents had since disappeared. Therefore
the Prosecution would c a ll a l l the w itnesses av ailab le and would then
put the a ffid a v its before the Court and ask fo r the evidence contained
th e re in to be accepted.
On 3 October, the Judge Advocate asked the Prosecutor what he
r e lie d on in p u ttin g in tlie a f f id a v its . The Prosecutor re p lie d th a t he
r e lie d on Regulation 8 ( i ) .
The Judge Advocate asked whether Regulation 8 (i) (a) was not
intended to be read, a t any ra te so f a r as an a f f id a v it was concerned,
to the e ffe c t th a t the Court had f i r s t to be s a tis f ie d th a t the witness
ires dead, or was unable to atten d or to give evidence or was in the
opinion of the Court, unable to atten d w ithout undue delay.
The Prosecutor re p lie d th a t the general introductory provision
of Regulation 8 (i) made paragraph (a) academic by s ta tin g th a t
R egulation 8 ( i (a) was "without prejudice to tho g e n e ra lity o f the
foregoing." To the question whether the Prosecutor took the view th a t,
even i f there was a w itness in the fle s h who could be obtained, the
Prosecutor would s t i l l be in clin ed to re ly on the a ffid a v its , the Prosecutor
re p lie d th a t te c h n ic a lly he should take th a t view. I t would, of course, be
a m atter fo r the Court to decide whether they considered th a t the statement
o r document appeared to be of a ssista n c e .
The Judge Advocate advised the Court th a t the Regulation was so
wide th a t the P rosecution 's view of i t was a c o rre c t ono,

/C aptain P hillips
 E/CN.1+/VM9
Page 265

Captain P h illip s* then objected to the use of a ffid a v it evidence,

which would Generally not be adm issible .before a Court. I t was, he said ,
only adm issible, i f a t a l l , as a r e s u lt of Regulation 8 ( i ) , and th a t
Regulation, in h is submission, was merely perm issive. I t said th a t the
Court might take in to consideration c e rta in types o f ovidence. The
objection of the Eefence was th a t th is was not a case in which the Court
should receive such evidence. The Defence did not say tlia t the Court
could not do so, but they said tlia t the Court had a d is c re tio n and th a t
i t should exercise i t s d is c re tio n here in favour o f the Defonce by refusing
to accept the evidence. The whole of the evidence contained in these
a ffid a v its was, in the submission o f the Defonce, completely u n re lia b le ,
thorouglily slipshod and Incompetent.
The Judge Advocate said th a t i t was e n tire ly a m atter fo r the C ourt's
d iscretio n whether they accepted th is evidence o r n o t. I t was fo r the
Court to consider what weight should be attach ed to any a f f id a v it. In
his view, a l l these e x h ib its would be adm issible in evidence, bu t what was
le f t fo r the Court to decide was how much weight they would a tta c h to any
p a rtic u la r document, having heard the whole of the circumstances and
having considered i t in the lig h t o f o th e r evidence.
The Court decided th a t they would receive in evidence the a ffid a v its
tendorod by the Prosecution. They added, however, th a t when they come to
decide what w eight.should be attach ed to any p a rtic u la r a f f id a v it, they
would bear in mind any observation which the Defence might address to them.
On 19 September 19^5, the a f f id a v it o f Colonel Johnston was put in by
the Prosecutor. One of the Defending O fficers objected to th ree paragraphs
of the a ffid a v it on the ground th a t they contained merely comment on points
which i t was the C ourt's duty to decide. A d if f ic u lty arose from the f a c t
th a t the Court must know what was in a paragraph in order to decide whether
to admit i t o r n o t. The Prosecutor pointed out th a t th is was in e v ita b ly so
in a system o f Courts M artial, under which the Court was Judge both o f law
and of f a c t. The Court must, in f a c t read themselves, or have read to them,
the paragraphs in order th a t they might consider the le g a l p o in t; then they
must do the Impossible and Bay "wo refuse to allow th is to be put before us
and in our capacity o f Judges o f f a c t, we w ill ignore them, although in our
capacity of Judges of law we must consider them f i r s t , "
One of the paragraphs objected to was l e f t out on the advice o f the
Judge Advocate, who remarked th a t the deponent was going ra th e r outside h is
province. As to the two remaining paragraphs, the Court decided th a t there
should not be entered the words "In sh o rt such orders and the carrying out
of such orders was mass murder" and a reference to "accomplices in mass murder.

* One o f tho Defence Counsel.

/During the hearing
 E/ cV.VW.19
Pa 266

During the hearing of the evidence fo r the defence, the question

arose whether, a t th a t stage of the t r i a l , a ffid a v its made by witnesses
who had been heard by the Court in person cpuld be put in , in order to
show the u n r e lia b ility not of the w itnesses involved bu t of the
a ffid a v its as a whole, a l l o f them having been produced by the same
War Crimes In v e stig atio n U nit.
The Defence argued th a t i t was e s s e n tia l, in the present case,
where the ovidence fo r the Prosecution was la rg e ly documentary, fo r the
Defence to be able to challenge tho whole system whereby th a t documentary
evidence was produced by pointing out discrepancies between what witnesses
had said in Court and what they had said in w ritte n statem ents not yet
entered as evidence.
This was opposed by the Prosecution on the ground th a t the examination
and the cross-exam ination of the respective w itnesses was the proper time
to point out discrepancies between the a ffid a v its and the o ra l evidence
o f w itnesses and th a t i f the defending o ffic e rs had missed th is opportunity,
they could not submit the a ffid a v it a t a time when the w itnesses had no
opportunity of explaining the alleg ed discrepancy in the course of th e ir
cross-exam ination.
The Court ru led th a t, i f th e re were any w itnesses who gave evidence
in Court personally and were cross-examined in regard to a ffid a v its that
they had made, and i f those a ffid a v its were not put in as evidence, the
Court would allow any Defending O fficer to put in such a ffid a v its during
the course o f h is defence, fo r the purpose o f e sta b lish in g the manner in
which these a ffid a v its had been taken.
On the o th er hand the Court f e l t th a t, in the case o f w itnesses who
gave evidence in person and were not cross-examined in regard to th e ir
a f f id a v its , the Court should no t admit 6uch a f f id a v its , because they
would carry no weight with them unless accompanied by a cross-examination
o f the w itnesses so th a t the Court could appreciate ex actly what th e ir
evidence would be in regard to the taking of the a f f id a v its .
During the t r i a l o f Erich K illin g e r and four pthers by a B ritis h
M ilita ry Court, Wuppertal, 26 November - 3 December 19^5, before the
tendering of the' a ffid a v it evidence fo r the Prosecution, the Defence
applied fo r one deponent to be produced in person. The Defence had been
given to understand tlia t the B ritis h O fficer in question would be available
fo r questioning. The Court decided, a f te r hearing argument, th a t the
deponent could not be produced "without undue delay" (in the wording of
Regulation 8 ( i) (a )), and the P resident o f the Court added the significant
statem ent th a t "we re p liz e th a t th is a f fid a v it business does not carry the
/w eight of the nan
 weicht of the man him self here, ns evidence, and when i t i s read we w ill
hear what objections you have got to anything th a t the a f fid a v it say,
and we w ill give th a t, as a Court, due w eight." The P re s id e n t's words
may f a i r l y be taken as a reference to the fa c t th a t i f evidence 1b given
by means of an a ffid a v it the person providing the evidence is not present
in Court to be examined, cross-examined and re-examined.
N evertheless, in h is summing up, the Judge Advocate in the t r i a l of
Karl Adam Golkel and th ir te e n o th e rs, by a B ritis h M ilitary Court,
Wuppertal, Germany, 15 - 21 May 19^6, s tre sse d th a t: "There i s no ru le
th a t evidence given in the w itness box must be given more weight than
evidence, statem ents, taken on oath outside the c o u rt. As I said e a r lie r ,
take in to account a l l the circu m stan ces..." A discussion o f the re la tiv e
value as evidence of p r e - t r i a l statem ents produced in Court in documentary
form and of o ra l testimony delivered in the witness box had a ris e n from the
fa c t th a t four of the accused vithdrew in Court wholly o r in larg e p a rt the
evidence which they had given in p r e - t r i a l statem ents ag ain st fiv e other
accused. I t may f a i r l y be said th a t fiv e accused, Pahl, P ilz , Limberg, Thilker
and B o tt, were found not g u ilty as a d ire c t r e s u lt of th is f a c t. There were
also le ss sensational but sim ila r recan tatio n s of evidence re la tin g to others
among the accused.
9. The Admisslbll i t y of P re-T ria l Statements by one Accused ag ain st Another.
In the Special Order appointing the Commission which conducted th e
t r i a l of A lbert Bury and Wilhelm Hafner, a United S tates M ilita ry Commission
s ittin g a t F reisin g , Germany, 15 Ju ly 19^5, power was grantod to i t to make
such ru le s fo r the conduct of the proceedings, co n sisten t with the powers of
a M ilita ry Commission, us were deemed necessary fo r a f u l l and f a i r t r i a l .
The Commission announced a t the o u tset th a t i t s proceedings were to "be
governed g enerally by the ru le s of procedure and evidence as la id down in
the Mannual fo r C ourts-M artial with the following changes. Statements
made by the accused in the course of in v e stig atio n s which appear to be
reg u larly and properly authenticated w ill be adm itted in evidence, subject
to such a tta c k as the accused may d esire to make. The stateiw n ts made by
the accused th a t are admitted in evidence w ill be received generally
against a l l of the accused subject to such re b u tta l as the accused o r
any of them may e le c t to make. . . "
During the Belsen T ria l, (see page lW>), on 5 October, objection was
raised by Major C ranfield, one o f the Defence Counsel, to the admission
of an a f f id a v it made by the accused Kopper. I t was submitted th a t the
a ffid a v it was objectionable as evidence ag ain st any of the other accused.
Major C ranfield pointed out th a t while th is a ffid a v it was admissible
/under Regulation 8
 E/CK.k/\1.19
Page 268

under R eg u latio n 8 o f th e Royal W arrant, t h a t p ro v is io n vas m erely

p e rm issiv e . He c a lle d on th e Court to r e j e c t th e evidence as being
com pletely v o r th le s s . The P ro s e c u tio n 's own w itn e sse s had c a lle d
Kopper an inform er and one who l i e d . In support of h is argument he
quoted a passage from page 9 k o f th e B r itis h Manual o f M ilita ry Law
governing th e procedure follow ed in C ourts M a rtia l: " I f th e Prosecution
f in d i t n e c e ssa ry to c a l l one su sp ected p a r t i c i p a t o r in a crime as a
w itn e ss a g a in s t th e o th e rs th e p ro p er course i s n o t to a rra ig n him o r,
i f he has been so a rra ig n e d , to o f f e r no evidence and to tak e a v e rd ic t
o f a c q u i t t a l ." The reaso n was c le a r . The s p e c ta c le o f one c rim in a l
tu rn in g on h is fe llo w c rim in a ls to save h is own sk in was n o t one which
was a t t r a c t i v e to B r itis h j u s t i c e .
The P ro se c u to r subm itted t h a t the meaning o f the R eg u latio n s was
t h a t th e Court could adm it evidence t h a t would n o t o therw ise be adm itted,
b u t t h a t I f th e y found t h a t th e y m ight a c c e p t i t th e n th e y must accep t I t ,
s u b je c t to such w eight as th ey m ight a tta c h to i t a fte rw a rd s. The Court
had n o t a d is c r e tio n to say: " a l l t h i s evidence i s le g a l and we w ill
acc e p t t h i s p a r t a n d .r e je c t t h a t p a r t " . The case came w ith in a s p e c ific
c ate g o ry mentioned under R eg u latio n 8 ( i ) . / ny d e p o sitio n , any summary,
o r any exam ination made by any o f f ic e r d e ta ile d f o r th e purpose by any
m ilit a r y a u th o rity was in clu d ed , and th e Court had h eard t h a t Major Champion
and Major Smallwood, (two o f f ic e r s who had appeared as w itn e s s e s ), were in
f a c t b o th d e ta ile d . R eg u latio n 8 ( i i ) ren d ered i t p e rm issib le to e n ter
evidence by one accused a g a in s t a n o th e r.*
R eplying, Major C ra n fie ld s a id t h a t in h is view th e o b je c t o f
R eg u latio n 8 ( i i ) was to in tro d u ce in to th e law o f procedure governing
th e Court th e p ro p o s itio n t h a t i f one o f th e accused were proved a member
o f a u n i t , th e n evidence a g a in s t an o th er member o f t h a t vinit would be
evidence a g a in s t th e accused, m erely because ho was a member o f the u n it.
R eg u latio n 8 ( i i ) d id n o t re n d e r th e a f f i d a v i t a d m issib le .
A fte r quoting R egulation 8 ( i) the Judge Advocate s a id t h a t he saw
no reaso n i n law vhy the. Court should r e j e c t t h i s a f f i d a v i t . They would
have to re a d th e document and th e n say w hether th ey were s a t i s f i e d th a t i t
appeared t o be an a u th e n tic document on th e fa c e o f i t . They must then
say w hether i t was a document which would h elp in proving o r disproving
th e c h arg es.
The C ourt decided t h a t th e document yould be ad m itted , w hile reserving
th e r i g h t to judge what w eight to p la ce on i t .
One view o f th e a ttitu d e which a c o u rt might p o s s ib ly be expected to
ta k e tow ards such ev idence, w hether in a f f i d a v i t form o r from a "live"

* Regarding R eg u latio n 8 ( i i ) , see page 18*5. /w itn e s s ,

w itness, i s provided, however, hy the Judge Advocate in the t r i a l of
Werner Rohdo and e ig h t others by a B ritis h M ilitary Court a t Wuppertal,
Germany, on 29 May - 1 June 1946, who in h is summing up, pointed out
th a t a groat deal of the evidence in the case was provided by accomplices
"that i s , persons who are also charged, or obviously could be charged,
with having taken p a rt in the same o ffence." He warned the Court "th at
the evidence of an accomplice must be regarded always with the g re a te st
suspicion. Every accomplice is giving evidence which is of a ta in te d
n atu re. He may have many reasons fo r not te llin g the tru th him self. He
may be try in g to exculpate him self and throw the blame on somebody e lse ,
and there may be a hundred and one reasons why he should not be te llin g
the t r u t h . . . . This does not roan th a t you cannot believe him or you
cannot accept the evidence of an accomplice, but i t means th a t before
you do so you must f i r s t caution yourselves on those lin e s . I f , having
done so and in sp ite of having so warned yourselves, you believe th a t
what he is saying is tru e , you are p e rfe c tly free to a c t upon h is evidence."
He added: "When you are looking fo r corroboration of an accom plice's
evidence one accomplice cannot corroborate another."
In making these remarks the Judge Advocate was applying to the case
the p ra c tice followed in English Criminal Law, according to which, "where
a w itness was him self an Accomplice in the very crime to which an indictment
re la te s , i t is the duty o f the judge to caution the Jury strongly as to
the in v ariab le dangor of convicting upon such evidence without corroboration.
Moreover th is corroboration must confirm not merely a m aterial p a rtic u la r
of the w itn e s s 's sto ry , but some p a rtic u la r which connects the p riso n er
him self w ith i t ........ Corroboration by another accomplice, or oven by
several accomplices, does not s u ffic e ........ But these common-law ru le s as to
the neceosity o f corroborating accomplices amou't only to a caution and
not to a command,"*
10. The A dm issibility of Feereay Evidence
F u rth er examples of The more d ra s tic ru le s of evidence perm issible
before courts try in g war crim inals are found in the frequency w ith which
"hearsay" evidence is adm itted. For in stan ce, in English C i . i l Courts,
subject to exceptions, a statem ent, whether o ra l or w ritte n , made by a
person who is not c a lle d as a w itness is not adm issible to prove the tru th
of any m atter contained in th a t statem ent (see H arris and W ilsheres
Criminal Law, Seventeenth E dition, page 482). Such evidence is rendered
perm issible by Regulation 8 (i) of the Royal Warrant provided i t s a tis f ie d

* Kenny, O utlines of Criminal Law, 15th E dition, pages 459-61.

/th e conditions
l/CF.tyw.19
Page 270

the conditions la id down th e re in .* In the Bolson T ria l much hearsay

evidence was adm itted, including some contained in the a ffid a v its entered.
11. Accused not F n tltle d to tho Rights of a P risoner of War as Regards Trial
In the t r i a l of General Anton D ostler, Commander of the 7?th German
Army Corps by a United S tates M ilita ry Commission in Borne, 8-12 October 19^5,
and in the T ria l of General Yamashita by a United S tates M ilita ry Tribunal
a t Manila, P hilippine Isla n d s, 29 October - 7 November 19^5, the Defence
unsuccessfully claimed on behalf of the accused and in connection with
th e ir t r i a l the b e n e fits of tho 1929 Geneva P risoners o f War Convention.
The re p ly of the Prosecutor in the former t r i a l was th a t the provisions
of the Geneva Convention with regard to the t r i a l of p riso n ers o f war,
which the Defence had put forward, p ertain ed to offences committed by a
p riso n er of war in c a p tiv ity , and did no t p e rta in to offences committed
ag ain st the Law of Nations p rio r to h is becoming a p riso n er o f war.
I f the argument of the Defence regarding the in te rp re ta tio n of the
Geneva Convention were c o rre c t, i t would have far-reach in g consequences with
regard to the t r i a l of such war crim inals as had been members of the armed
forces of the enemy and had th e re fo re , on being captured, acquired the
s ta tu s of prisoners of war. War Criminals would be p ro tected by A rticle 63
of the Geneva Convention which provides th a t: "A sentence s h a ll only
be pronounced on a p rison er of war by the same trib u n a ls and in accordance
w ith the samo procedure as in the case of persons belonging to the armed
forces of the detaining Power." This A rtic le would guarantee them, within
the United S tates Ju ris d ic tio n , the s ta tu to ry safeguards of the A rtic le s
o f War and the p ro te c tio n of the "due process of law" clause of tho
F if th Amendment, and in oth er J u risd ic tio n s a l l the procedural rig h ts
granted by the law of the capturing State to i t s own s o ld ie rs . Furthermore
the in te rp re ta tio n of the Defence would make the provisions of
A rtic le s 60 - 66 of the Geneva Convention ap p licab le. I t would therefore,
be necessary fo r the a u th o ritie s in s titu tin g the proceedings to n o tify
the rep resen tativ e of the P rotecting Power (A rticle 60) , the representative
o f the pro tectin g Power would have the rig h t to atte n d the hearing of the
case (A rticle 62, paragraph 3)> the alleged war crim inal would have the
r ig h t of appeal against any sentence a g ain st him in th e same manner as
persons belonging to the armed fo rces of the detaining Power (A rticle 6*0,
sentences pronounced a g ain st priso n ers of war would have to be. communicated
immediately to the P rotecting Power (A rticle 65) and, I f sentence of death
were passed on a p risoner o f war, a communication s e ttin g fo rth in d etail
the nature and the circumstances o f the offence would have to be addressed

* See page J l .
/ to the representative
 e / cN .V w.19
Page 27I

to the re p resen tativ e of1 the p ro tectin g Power fo r transm ission to the Power
in whose armed forces the priso n er served (A rticle 66, paragraph 1 ); and
i t would, f in a lly , he forbidden to carry out the sentence before the
expiration of a period of a t le a s t three months from the date of the re c e ip t
of t i l l s communication by the pro tectin g Power (A rticle 66, paragraph 2 ).
The M ilita ry Commission in the P o stle r t r i a l decided th a t the provisions
of A rtic le 63 of the Genova Convention were not applicable to the case. As
is customary, the reasons of the M ilita ry Commission were not given.
The decision of the M ilita ry Commission on th is p o in t is in accordance
with the decision of the m ajority of the Supreme Court of the u n ite d S tates
in the case of the Japanese General Yamashita (delivered on ^ February 19^*6).#
The Supreme Court, per Stone, C .J., held th a t A rtic le 63 (and A rtic le 60)
of the Geneva Convention have reference only to offences committed by a
p risoner of war while a p risoner o f war and not to v io la tio n s o f the law o f
war a d m itte d while a combatant. This conclusion of the m ajo rity of the
Supreme Court is based upon the s e ttin g in which these a r tic le s are placed
in the Geneva Convention. A rtic le 63 of the Convention appears in P a rt 3
("Ju d icial S uits") of Chapter 3, e n title d "Penalties applicable to Prisoners
of War." This forms p a rt of Section V, "P risoners' R elations w ith the
A u th o rities", one o f the section s o f t i t l e I H , "C ap tiv ity ". A ll taken
together re la te only to the conduct and co n tro l of p riso n ers o f war while
in c a p tiv ity ; Chapter 3 i s a comprehensive d escrip tio n of the substantive
offences which p risoners of war may commit during th e ir imprisonment, of
the p e n a ltie s which may be Imposed on account o f such offences, and of the
procedure by which g u ilt may be adjudged and sentence pronounced. The
m ajority of the Supreme Court th erefo re thought i t c le a r th a t P art 3, and
A rtic le 63 which i t includes, apply only to ju d ic ia l proceedings d ire c ted
against a priso n er of war fo r offences committed while a p riso n er of war.
Mr. Ju stic e Rutledge, in h is m inority opinion, in which Mr. Ju stic e
Murphy Joined, held th a t the context in which A rtic le s 60 and 63 are placed
did not give any support to the argument of the m ajority of the Court.
N either A rtic le 60 nor A rtic le 63 contained, in the opinion of the m inority,
such a r e s tr ic tio n of meaning as the m ajority read in to them. In the
absence o f any such lim ita tio n , i t would seem th a t they were intended to
cover a l l J u d ic ia l proceedings, whether in s titu te d fo r crimes alleg ed ly
committed before the capture or l a t e r . In Mr. Ju stic e R utledge1s opinion,
policy supported th is view. For such a construction vas required fo r the
secu rity of United S tates s o ld ie rs, taken priso n er, as much as fo r th a t of
prisoners taken by the United S ta te s. And the opposite view would leave

* See pp. 196 e t seq. and 270

/p riso n ers of war
E/ c s .h/ w .1$
Page 272

p riso n ers of war open to any form o f t r i a l and punishment, fo r offences

ag ain st the law of war, which th e ir captors might wish to use,, while
safeguarding them, to the ex ten t o f the tre a ty lim ita tio n s , in cases of
d is c ip lin a ry offences. This, in many in stan ces, the m inority contended,
would be to make the tr e a ty s tr a in a t a gnat and Gwallow a camel.
The view th a t an alleg ed war crim inal is not e n title d to the rig h ts
as regards h is t r i a l o f a p riso n er of war i s , however, g en erally acted
upon* and was. s p e c ific a lly la id down also by the French Cour de Cassation
i n the appeal .of Robert Wagner, Ex-G auleiter o f Alsace, and others against
the sentences of death passed on them by the Permanent M ilitary Tribunal
a t Strasbourg on 3 May 19h6. The a ttitu d e of the Court on the question
hare, under discussion arose out o f one of the le s s Important arguments put
forward by the ap p ellan ts, a plea put forward by Wagner, Rhn and Schuppel,
and based upon the alleged v io la tio n of A rtic le 156 of the Code do Justice
M ilita ir e , claiming th a t the M ilita ry Tribunal was irre g u la rly composed
because Wagner had the rank of a General commanding an Army Corps and
the Tribunal could not, th e re fo re , properly be presided over by a Colonel.
The Judgment of the Court of Appeal pointed out th a t,' according to
A rtic le 5 o f the Ordinance of 28 August 1 9 ^ (under which war crime .tria ls
before French M ilita ry Tribunals are h e ld ), "For ad ju d icatin g .on var
crimes the M ilita ry Tribunal s h a ll be c o n stitu te d in the way la id down
in .the Code de J u stic e M ilita ire ."
The provisions of A rticle 10 e t seq . and 156 of the Code de Ju stice
M ilita ir e , which varied the composition of M ilita ry Tribunals according
to the rank of the accused applied only to French m ilita ry personnel
and to persons tre a te d as such.
. Paragraph 13 o f A rtic le 10, accqrding to which M ilita ry Tribunals
c a lle d upon to tr y priso n ers of war are compose! in the same Way as for
the t r i a l of French m ilita ry personnel, th a t is according to rani:, .would
n o t bo applied to Wagner, who was not sent before a M ilita ry Court ab a
priso n er of war.
12 Conclusion
In a large number of in stan ces war crimes were p erp etrated during the
l a s t war e ith e r by denying the victim s a f a i r t r i a l a lto g e th e r or by
circum scribing th e ir rig h t to such a t r i a l in the course of Ju d icial
proceedings in such a way th a t a sheex tra v e rs ty of Ju stic e re s u lte d .##

* The question received a tte n tio n in the t r i a l o f M artin G o ttfried

Weiss and others (the Dachau T ria l) hy a General M ilita ry Government
Court in Dachau, 15 November - 1 3 December 19^5, the Commission ruling
in the some way as the court in the D ostler t r i a l .
** See page 1^9*
/T his circumstance
 E/C.Vw.19
Page 273

This circumstance may he thovlght.to make i t a l l the more important th a t

the v ic to r nations should avoid the same p ra c tic e s and th a t persons
accused of having committed war crimes should see th a t the minimum rig h ts
e s s e n tia l to a f a i r t r i a l are being safeguarded during proceedings taken
against them. The survey s e t out above of inform ation illu s tr a tin g the
pro tectio n of c e rta in selected and more important rig h ts (see headings 1-5)
makes i t c le a r th a t an attem pt has in fa c t been made to secure an alleged
war crim inal h is rig h ts to a f a i r t r i a l .
The l a t t e r p a rt of the sectio n , hovever, makes i t c le a r th a t the aim
has a lso been to ensure th a t the courts are not so bound by tech n ica l ru le s
th a t the. g u ilty s h a ll b e n e fit from the exceptional circumstances under
which war crime t r i a l s are n e ce ssa rily held, and so escape Ju st punishment.
Without such ru le s as those illu s tr a te d by the m aterial appearing tinder
headings 6-1 1 , i t is c le a r th a t the rig h ts of the victim s would often
. go unvindicated.
F in a lly i t w ill have been noted th a t a marked general s im ila rity
e x ists between the ru le s la id down in the Charters of the In te rn a tio n a l
M ilitary Tribunals and in the various municipal enactments governing a l l
the m atters discussed in th is sectio n on the rig h ts of the accused.
These procedural ru le s , as much as those quoted elsewhere which la y down
provisions o f substantive law, rep resen t a fu rth e r co n trib u tio n to the
development of an in te rn a tio n a l penal la v . They w ill prove of value in
the sphere of the c o d ific a tio n o f in te rn a tio n a l la v and w ill serve as
a convenient b a sis fo r fu rth e r developments in th is sphere.

/f . conclusion
 p . . conclusion to chapter i i i

In common v ith a l l p a rts of the Report on Human Rights in War Crime

T ria ls , the shortage of time has prevented Chapter I I I , dealing with
inform ation on Human Bights in t r i a l s oth er than those conducted by
In te rn a tio n a l M ilita ry T ribunals, from being d rafto d in i t s e n tire ty .
The reason fo r th is w ill be c le a r i f i t is s ta te d th a t the S e c re tariat
o f the United Nations War Crimes Commission had in i t s possession on
6 August 19U7, records of 1,084 such t r i a l s , ranging from f u l l verbatim
tra n s c rip ts of up to )*,055 pages in one instance (exclusive of '
sep arately p rin ted o x h ib its) down to the b a re st of summaries. The
countries whose Courts have held these t r i a l s are the follow ing:
A u stra lia, Canada, China, Czechoslovakia, Prance, Greece, the Netherlands,
Norway, Poland, the United Kingdom and the United S ta te s . These records,
th e re fo re , are numerous and varied and i t should be added th a t a large
number of fu rth e r such documents have a rriv e d since 6 August, some, as
was in e v ita b le , too la te fo r treatm ent In th is Chapter.
I t has been thought of some value, n ev erth eless, by the O fficer
charged with d ra ftin g th is Chapter to attem pt to cover a l l the relevant
aspects of these t r i a l s , even i f the r e s u lt has been th a t the treatment
of some points has been unavoidably unequal and disconnected. I t has
been possible to deal w ith some to p ic s in f u l l , as fo r instance the
question of the re s p o n s ib ility o f commanders fo r offences committed
by th e ir troops other than those s p e c ific a lly ordered by them,* the
dofenee of superior orders** and the rig h ts of the accused a t the time
of tr ia l.* * * The aim throughout, however, has been to supply the
Commission on Human Rights w ith a t le a s t a c la s s ific a tio n of significant
t r i a l s according to the questions to which they are re le v a n t, together
w ith a quotation of the A rtic le s from the Hague and Geneva Conventions
and other a u th o ritie s which were c ite d in the t r i a l s described or
mentioned under each heading.
This c la s s ific a tio n of t r i a l s and quotation o f a u th o ritie s
represents the lowest le v e l of an aly sis and minimum treatm ent to which
each of the 1,000 to 1,100 t r i a l s re fe rre d to above haB been subjected
in the course of recen t months. As has already been in d icated , many
have been subjected to much f u ll e r a n aly sis, b u t i t is thought th a t,
should i t be decided a t some fu tu re date to complete the research on
Human Eights in War Crime T ria ls , even the c o lle c tio n s of enactments and

* See pages 182-212

** See p. ges 215-236
*** See pagos 250-273
/references
 e/CH.Vw.19
Pag 275

references to re le v an t t r i a l s v i l l prove a t le a s t a valuable guide and

sta rtin g p o in t.
I t is not the in te n tio n o f th is Conclusion to summarize the whole of
the contents of Chapter I I I , aince p a rts of th a t Chapter simply analyze,
from the p oint of view of the p ro tectio n of human rig h ts , c e rta in enactments
and ju d ic ia l decisions which give ris e to no kind o f debate from the le g a l
point of view; the aim of th is Conclusion is ra th e r to p o in t out c e rta in
sig n ific a n t to p ics on which there may or could have been le g a l doubts or
on which there have been in the p ast discussions in le g a l c irc le s , and to
draw the readers a tte n tio n , by means of cro ss-referen ces, to the f u lle r
treatment of these points in the main body of Chapter I I I . An examination
cf the following ty p ic a l subjects w ill il l u s t r a t e how these le g a l questions
have in most cases been decided in the d ire c tio n of extending, ra th e r than
r e s tric tin g , the p ro tectio n of human rig h ts :
(i) In A rtic le 2 of the Hague Convention, No- IV of I 907* which
has been quoted so o ften in war crime tr i a ls ,* * there appears
what is generally re fe rre d to as th e ' "general p a rtic ip a tio n
clause" which provides th a t the Convention s h a ll be binding only
i f a l l the b e llig e re n ts are p a rtie s to i t . In s t r i c t law the
e f f e c t o f th is clause i s to deprive the Convention of i t s binding
force as soon as one or more nrn-siga& tory B tates Join the ranks
of the b e llig e re n ts , as happened in both the 191^-1918 war and
the more recent World War. Such doubts as may have ex isted in
le g a l minds during the f i r s t world war as to the e ffe c t o f the
clause*** have not been serio u sly en tertain ed in the treatm ent
o f war crimes commitcod during the second world war; the view
has in fa c t been g en erally taken th a t the Regulations attached to
the Hague Convention are in any case declarato ry of e x istin g
in te rn a tio n a l law and so binding on a l l b e llig e re n ts , whether thoy
signed the Convention or not.****

* In th is in stan ce, A rtic le 2 of the actu a l Convention is meant and

not A rticle 2 of the Regulations attached to the Convention.
** See fo r instance Section C of th is Chapter (pages IW -I81), passim.
*** See Oppenheim-Lauterpacht, In te rn a tio n a l Law, V o l.II, Sixth E dition
Revised, page 182, footnote- ^
**** I t may be added th a t the Geneva Conventions do not include any
"general p a rtic ip a tio n clau se."

/(ii) An
 (ii) An examination of the Hague and Geneva Conventions rev eals that
very few o f the provisions contained th e re in seem on a narrow
and l i t e r a l in te rp re ta tio n to lay down in d iv id u al resp o n sib ility .
By and large the o b lig atio n s contained th e re in r e s t upon states
and not upon in d iv id u a ls. A rtic le 3 of the te x t o f the Hague
Convention No. XV of 1907 provides fo r instance th a t "a
b e llig e re n t p arty which v io la te s the provisions of the said
Regulations* s h a ll, i f the case demands, be lia b le to pay
compensation. I t s h a ll bo responsible fo r a l l a c ts committed
by persons forming p a rt of i t s armod fo rc e s."
N evertheless, not only the trend of le g a l opinion**, but a lso the
course followed in numerous important decisions o f the courts has been to
malse the indiv id u al responsible fo r h is a c ts in breach of in te rn a tio n a l
conventions and to punish him fo r them. That th is p o licy is upheld in the
accepted jurieprudeeca is illu s tr a te d by the a u th o rita tiv e d ecision,
pronounced by the In te rn a tio n a l M ilitary Tribunal a t Nrnberg, th a t
c e rta in accused had made themselves crim inals by waging war in breach
of the terms of an in te rn a tio n a l agreement renouncing war undertaken as
an instrum ent o f n a tio n a l p o licy , the B riand-Kellogg Pact.*** Indeed,
the In te rn a tio n a l M ilita ry Tribunal made use of the f a c t th a t tho Hague
Convention No. IV o f 1907 had been enforced p erso n ally a g a in s t-its
v io la to rs . The judgment on th is p o in t runs:
"But i t i s argued th a t the Pact does not expressly enact th a t
such wars are crimes, or s e t up courts to tr y those who make such
w ars. To th a t extent the same is tru e w ith regards to the laws of
war contained In the Hague Convention. The Hague Convention of I 907
p ro h ib ited re s o rt to c e rta in methods o f waging war. These included
the inhumane treatm ent of p riso n ers, the employment o f poisoned weapons,
improper use of fla g s of tru ce and sim ila r m atters. Many of these
p ro h ib itio n s had been enforced long before the date o f the Convention;
b u t since I 907 they have c e rta in ly been crimes, punishable as offences
ag ain st the laws o f war; y et the H&gue Convention no where designates
such p ra c tic e s as crim inal, nor i6 any sentence described, nor any
mention made of a court to tr y and punish o ffen d ers. For many years
p a st, however m ilita ry trib u n a ls have tr i e d and punished individuals
g u ilty of v io la tin g the ru le s o f land warfare la id down by th is
Convention. In the opinion of the T ribunal those who wage aggressive

* i . e . the Regulations attached to the Convention,

** See fo r instance P rofessor H. L auterpacht, in the B ritis h Tear Book
of In te rn a tio n a l Law, 19W*, page 6h; Lord Wright in the Law Quarterly
Review, January, 19^+6, page 4-2; and P rofessor A. L. Goodhart in the
J u d ic ia l Review, A pril 19*6, pages lk - 15 .
*** "Treaty S eries No. 29 (1929)" Cmd. 3^10.
/war are doing
 E/CN.Vw.19
Page 277

var are doing th a t which is equally ille g a l, and o f much g re a te r

moment than a breach of one of the rulee of the Hague Convention."*
( i i i ) In the course of the Belsen t r i a l ,* * the defence assumed th a t
the accused could n ot, as concentration cemp o f f ic ia ls , bo
regarded aB members of the German armod forces and, having a t
tho same time no connection with b e llig e re n t a c ti v itie s , could
not th erefo re be deemed war crim in als.
The Prosecutor claimed th a t those accused who had been members o f the
SS. were members of the German armed fo rc e s. I t would be more d if f ic u l t,
however, to claim th a t the camp prisoners who were given minor o f f ic ia l
positions by the a u th o ritie s were anything but c iv ilia n s . In holding some
such accused g u ilty of war crimes along w ith others who were d e fin ite ly
members o f the SS., the Court p la in ly regarded i t as irre le v a n t whether
an accused was o r was not a c iv ilia n .
Many subsequent court decisions have raado i t q u ite c le a r th a t c iv ilia n s
can commit war crim es. For example, in the Zyklon B Case*** two German
in d u s tr ia lis ts , undoubtedly c iv ilia n s , were sentenced to death as war
criminals fo r having been instrum ental in the supply of poison gas to
Auschwitz, knowing of i t s uso there in murdering a llie d n a tio n a ls. Another
instance among many is provided by the Essen Lynching Case**** where
c iv ilia n s appeared among persons found g u ilty o f being concerned in the
k illin g of three B ritis h P risoners of War. The Hadamar Trial***** provides
an example from among the t r i a l s held before United S tates M ilita ry
Commissions: here the c iv ilia n personnel of a medical in s titu tio n were
found g u ilty of unlaw fully p u ttin g to death Russian and Polish n a tio n a ls,
(iv) The term "war crime" has been in te rp re te d so as to include w ithin
I t s scope any offence by an enemy ag ain st A llied n atio n als
committed during war time on enemy s o il or occupied te r r ito r y ,
irre sp e c tiv e of any necessary d ire c t connection w ith the war.

* Cod. 696 h, page lK).

** See page 19O. In th is oarly t r i a l by a B ritis h M ilitary Court,
several important issues such as the p re6ont one were ra ise d and
s e ttle d by Court d ecision. A re p o rt on th is t r i a l is contained in
War Crime T ria l Law E enorts, published by His M ajesty's Stationery
ffic e , London, for the United N ations War Crimes Commission.
Volume I I .
*** Seo 93-IO3 of V ol.I of War unme rrj-uu Law
***# ibid., pages 88-92.
***** Ib id , pages 4 6 - ^ .

/During the Belsen

 During the Beien t r i a l , Colonel Smith, Defence Counsel, claimed
th a t a l l rocognized war crimes were bound to g eth er by the common
p rin c ip le th a t they were d ire c tly connected w ith the operations o f war,
and th a t tho purpose of the punishment of war crimes was to secure the
le g itim ate conduct of the operations of war. In the p resen t t r i a l ,
however, Counsel submitted th a t the Court was dealing w ith in c id e n ts,
which c e rta in ly occurred in time o f war, b u t which had no lo g ic a l
connection w ith the war whatever. They were done in accordance with
what was begun in peace as a peace time p o licy and was intendod to be
c a rrie d on as a permanent and long term aim u n t i l i t s purpose was
achieved, the exterm ination o f tho unfortunate races involved. The
on ly difference which the war made to th is long term p o licy was to
Increase the geographical area over which i t could o p e ra te . In what
way did i t a s s is t the s e c u rity o f the B ritis h fo rces to punish someone
who had been g u ilty o f misbehaviour in a German concentration camp?
The Court may be taken by i t s decision to have held th is approach
to be unsound and the wider view Bet out in the beginning o f th is
paragraph (iv ) has been th a t which has p rev ailed in war crime t r i a l s
a ris in g out o f the recen t world war.
(v) A war crime can only be committed by a person who, looked
a t from the p o in t of view of the country s e ttin g up tho war
crime co u rt, i s an enemy. As has been shown,* however, the
word "enemy" has, on su ita b le occasions, been in te rp re te d so
as to include w ithin i t s scope not only enemy n atio n als but
also n e u tra l and even A llied n a tio n als who in some way
id e n tifie d themselves with the p o lic ie s of the enemy au th o ritie s,
(vi) The p ro te c tio n o f the Courts has been oxtended in c e rta in
Instances not only to A llied n a tio n als but a lso to c e rta in
n e u tra ls .**
(v li) Some of the municipal enactments which have bestowed
J u ris d ic tio n on the various non-M ilitary Government Courts***
have given the l a t t e r powers to tr y no t only war crimes in the
tr a d itio n a l sense bu t also crimes ag ain st humanity and even
crimes ag ain st peace.' Thus, the Danish and Greek Courts have
power to tr y a l l a c ts in v io la tio n of A rtic le 6 of the Charter
of the In te rn a tio n a l M ilitary Tribunal, (th a t is to say, Wat

* See page 160.

** See pages 159-60 and 287.
*** I t goes without saying th a t a l l M ilita ry Government Courts have wide
powers bestowed upon them, and are not r e s tr ic te d to the t r i a l of
offences ag ain st the laws and usages of war.
/Crimes,
 E/CN .V w .19
Pago 279

Crimes, Crimes against Humanity and Crimes ag ain st Peace), and

the Netherlands Courts a l l a c ts In v io la tio n of A rtic le 6 (b) and
(c ), (War crimes and Crimes against Humanity).* The A ustralian
and Chinese Courts have been given J u ris d ic tio n over, not only
war crimes, but also crimes ag ain st peace.**
Furthermore, i t has been seen th a t c e rta in of the United S tates
M ilitary Commissions have been provided w ith J u ris d ic tio n over offences
other than war crimes s tr ic to sensu; the J u ris d ic tio n a l provisions which
govern these commissions have c le a rly been d rafted under the influence of
the Charter o f the Nrnberg In te rn a tio n a l M ilita ry Tribunal.***
The precedents which have been created in these Ju ris d ic tio n a l m atters
are, of course, very wholesome ones which c le a rly go fa r towards extending
the p ro tectio n of human rig h ts .
( v iii) I t has been seen also**** th a t the Hague Convention has been
in te rp re te d so as to cover offences committed outside occupied
t e r r it o r y and even offences committed ag ain st ch ild ren who were
not born in occupied te r r it o r y b u t on German B oil. On a narrow
in te rp re ta tio n , the Hague Convention does not p ro te c t c iv ilia n s
outside of occupied te r r it o r y since the heading o f Section I I of
the Hague Convention is "M ilitary a u th o rity over the te r r it o r y
o f the H ostile S ta te " , b u t th is in te rp re ta tio n has not in fa c t
p rev ailed .
(ix ) Courts have in some instances (as fo r instance in Norway, A u stralia
and China) been given J u ris d ic tio n to t r e a t as war crimes offences
a g ain st the general economic w ell-being o f a country, such as the
debasement of i t s currency.*****
(x) Recognition has been afforded to the i l l e g a l i t y o f offences
sim ila r to and including th a t commonly re fe rre d to as "Ju d icia l
murder", committed by persons while in a Ju d ic ia l c a p a c ity .******
(x i) The Geneva Prisoner of War Convention of I 929 has been applied
not only to prisoners in tern ed in p riso n er o f war camps bu t also to
those prisoners of war who have been in carcerated in concentration

* See pages 1^5 159 and 288.

** See pages 285 and 287.
*** Socpage 158.
**** See pages l t- 5 .
***** Seepages lUlf and 15I .
****** Seepage 1^9.
/camps.
 E /C i.V w . 19
Pace 260

camps.*
(x ii) Again, the P risoner of War Convention speaks in terms of conditions
in p riso n er of war camps and the treatm ent of p riso n ers of war
while in such camps; n ev erth eless, the provisions of the
Convention have been held applicable also to the treatm ent and
conditions of p riso n ers of war while on the lin e .o f march between
camps**
( x iii) A rtic le 23 (c) of the Hague Convention fo rb id s the k illin g or
wounding of an enemy who, having la id down h is arms, or no longer
having means of defence, has surrendered a t d is c re tio n . The
Convention was d ra fte d long before the p o s s ib ility of airmen
escaping from a i r c r a f t by parachute was a p ra c tic a l p o s sib ility ;
nevertheless, A rtic le 23 (c) has been in te rp re te d so as to
p ro te c t baled-out airmen, whether captured by armed forcos or
c iv ilia n s , and, d esp ite the wording o f the a r t i c l e , i t has been
considered irre le v a n t th a t the fly e r had a weapon on h is person
on landing, provided he showed no in te n tio n of using it.* * *
(rLv) The pages discussing the various types of l i a b i l i t y f o r war crimes
Bhow th a t the war crime courts have c a s t th e ir n e t q u ite widely.**'
For example, war crim inals have been found g u ilty , no t only for
being physically concerned in a c tu a l k illin g , bu t a lso (fo r
instance) fo r keeping watch while i t was committed and fo r
p a rtic ip a tin g in a lynching which le d u ltim a te ly to the death of
the victim.***** The B ritis h p ra c tic e i s to charge an accused
w ith being "concerned in" a s p e c ific war crime, and the English
law re la tin g to a id ers and a b e tto rs and accesso ries i s often
re la te d by Judge Advocate and Counsel, a s .providing analogies
on which the Court might a c t. In French t r i a l s a lso , complicity
in one war crime o r another i s o fte n charged.
(xv) The re s p o n s ib ility of commanders fo r offences committed by troops
under th e ir command has in many cases been extended to a considrt'

* See pages 163-4.

** See pages 162-3.
*** See page 164.
**** See pages 212-16.
***** A fu rth e r re le v an t t r i a l which was not included in the discussion of
t r i a l s illu s tr a tin g com plicity but which has been re fe rre d to earlier
in these conclusions and a lso on page lVjf of Chapter I I I was the
t r i a l o f Bruno Tesch and two o th e rs. In th is t r i a l two business men
were held lia b le and condemned to death fo r having arranged fo r the
supply (not supplied) poison gas to Auschwitz and various other
concentration camps, knowing th a t i t was to be used in the mass
destru ctio n of prisoners in tern ed th e re in . (See War Crime T ria l Lev
R eports. Vol. I , pages 93-103).
i
/degree;
 E/CNA/W.19
Page 281

degree; the p rin c ip le s governing th is sphere of In te rn a tio n a l

law have not yet been c ry s ta lliz e d , but a t le a s t I t can be said
th a t i t i s not in every Instance necessary to prove th a t the
commander a c tu a lly ordered the offences, and i t has freq u en tly
been la id down in enactments and in Ju d ic ia l decisions th a t a
commander has a duty to prevent crimes from being committed by
h is subordinates.*
(xvi) I t has also been recorded th a t to some degree i t is recognized
th a t an atto r.p t to corsrr.t a v ar crime may be punished equally
with ths war crime i.o f If', *-"
(:cvii) The defence er' uec. - s i t ; h a.s not in f a c t, often been pleaded,
but is not, save m exceptional cases, regardo-l as c o n stitu tin g
an e ffe c tiv e dofenc&.***
(x v iii) The defence of .Ltgitir.o.tQ re p ris a ls has bean given only a lim ited
scope, though i t s o rie n t is t ti LI ra th e r obscure.****
(xix) The defence th a t an accused va.i tno head of a s ta te has not been
pleadod in t r i a l s te ro re the courts w ith which Chapter I I I d eals,
since no such person has beer, brought before such a co u rt.
N evertheless i t is worth noting th a t the sim ilar defence, th a t
an accused in committing effenspo wn in some tray actin g in an
o f f i c i a l capacity, has not been allowed to p re v a il.
Sometimes i t has been expressly la id down in municipal enactments th a t
an accused's o f f ic ia l p o sitio n do9s not excuse h im .- Thus, the Chinese Law
of October 19^*6, Governing the T r ia l 'o f War Criminals provides in i t s
A rticle V III th a t the f a c t th a t crimes were committed as a re s u lt of
o ffic ia l duty o r in pursuance o f governmental policy s h a ll not exonerate
var crim inals. S im ilarly, A rtic le k of tho Law of 2 Augst 19J+7 of the
Grand Duchy of Luxembourg on the Suppression of War Crimes lays down th a t:
"In no instances can the ap p lic atio n of the laws mentioned in A rtic le 1*****
be se t aside under the p re te x t th a t the authors or co-authors o f, o r the
accomplices in , the offences s e t out th e re in acted in the capacity o f an
o ffic ia l, a s o ld ie r, o r an agent in tho service of the euemy. . . "

* See pages 101-212.

** See pages 215-6.
*** See pages 239-1*2.
**** See pages 2^2-M.
***** See page 139.
/ (xx) A strong
E / cH.1-A/.19
Pag 282

(xx) A strong d isp o sitio n has been shown to exclude from war crime
t r i a l proceedings such unnecessary te c h n ic a litie s as might lead
to a m iscarriage o f Ju stic e in favour of the accused; th is
tendency has been demonstrated fo r in stan ce in th e e x p lic it
requirements th a t expeditious procedure mut be followed*
in provisions th a t a t r i a l cannot be in v alid ated a f te r i t s
completion merely because of technical, fa u lts of procedure which
caused no in ju s tic e to the accused** and in th e follow ing examples
o f the policy o f leaving wide d isc re tio n a ry powers in th e hands
o f the Courts:
(a) Some of th e enactments and a u th o ritie s dealing with the pie.-,
of superior orders have la id i t down th a t i f the defence is to
be a t a l l e ffe c tiv e the orders re lie d on must be shown not to
have been i l l e g a l , or obviously i l l e g a l , or known to the accused
to be ille g a l or of such a nature th a t he ought to have known
th a t they were ille g a l;* * * in gen eral, however, the p ractice ha:
been to la y down th a t the defence of superior orders does not
take away the crim inal ch aracter of an a ct bu t may co n stitu te
a m itig atin g circumstance, and to leave i t to th e court to
decide in each case whether to t r e a t i t as such.****
The circumstances in which th e defence i s to p re v a il are
le s s c e rta in , bu t some p o ssib le p rin c ip le s have been s e t out on
pages 228- 30.
(b) The a ttitu d e taken by the courts to the defence of legality
under municipal law has been s u b sta n tia lly th e same as th a t
tkcn towards th e defence of superior orders.*****
(c) In m atters o f evidence the tendency has been to allow the
p u ttin g in o f a wide v a rie ty o f evidence (sometimes i t is stated
th a t any evidence having probative value to the average man
may be adm itted), and to leave i t to th e court to decide what
weight to place on each item o f evidence.
(xxi) I t may be mentioned th a t wide ru le s regarding Ju d ic ia l notice have
been applied in war crime t r i a l s . Thus, fo r in sta n ce , A rtic le IX of
O rd i'1-ace No. 7 of th e United S tates Zone o f Germany makes the
follow ing provision re la tin g to M ilita ry Tribunals s e t up thereunder:

* See page 259.

** See fo r Instance pages 256-7 and 257_8.
*** See page 233*
See pages 23^-36.
See page 236. /"The trib u n als
 e / cn .V w. i 9
Page 23

"The trib u n a ls s h a ll not require proof o f fa c ts of common

knowledge but s h a ll take Ju d ic ia l n o tice th e re o f. They s h a ll also
take Ju d ic ia l notice of o f f ic ia l governmental documents and rep o rts
of any of the Utaited N ations, including the acts and documents of
the committees s e t up in the various a llie d countries fo r the
in v e stig a tio n of war crimes, and the records and findings of
m ilita ry or other trib u n a ls of any of the United N ations."
(x x ll) In te rn a tio n a l Law lays down th a t a war crim inal may be punished
w ith death whatever the crime he committed. Some use has been made
of the la titu d e allowed in th is m atter In so far as c e rta in offences
o th er than k illin g have been punished w ith death, fo r in stan ce,
cases o f to rtu re punished by the Norwegian and A u stralian co u rts.
In each o f the above in sta n ce s, draftsmen or the courts have
resolved a le g a l problem in such a way as to affo rd a wider
p ro te c tio n to human r ig h ts . I t must, of course, be borne in mind
th a t i f a court is r e s tr ic te d in i t s J u ris d ic tio n to t r i a l s of
offences against the laws and usages o f war, as are fo r instance the
B ritis h M ilitary C ourts,* then crimes by enemy n atio n als against
enemy natio n als are d e fin ite ly outside i t s Ju ris d ic tio n . I t has
fu rth e r been noticed** th a t few i f any of th e t r i a l s held before
war crime courts and whose rep o rts have reached the United Nations
War Crimes Commission have involved th e use of i lle g a l methods of
w arfare against opposing tro o p s. N evertheless, s u ffic ie n t has been
said in th e e a r lie r pages o f th is Conclusior zo in d icate th a t th is
branch o f In te rn a tio n a l Law, which deals w ith the t r i a l and
punishment of War Crim inals, Is one which has grown rap id ly in recent
years and is moreover developing, in most of i t s a sp ects, in the
d ire c tio n of a greater p ro te c tio n of human rig h ts .

* See pages 255-7

** See page 162,

/ g. APPENDIX
 G. APPENDIX TO CHAPTER II I*

1. United Kingdom and B ritis h Commonwealth Enactments

The ju ris d ic tio n of B ritis h M ilita ry Courts appointed fo r th e t r i a l
o f war crim inals derives from the Royal Warrant of l4 June 19^5 Army
Order 81/U5, o f which Regulation 1 provides th a t the term "war crime"
means a v io la tio n of the laws and usages o f war committed during any war
in which His Majesty has been or may be engaged a t any time since
2 September 1939*
S im ilarly , the War Crimes Regulations o f Canada of 30 August 19^5
( la te r re-enacted as a S ta tu te o f 3I August 19^*6) define a war. crime simply
as "a v io la tio n of the laws or usages o f war committed during any war in
which Canada has been or may be engaged a t any time a f t e r the n in th day
o f September 1939"*
The J u risd ic tio n of B ritis h and Canadian War Crimes Courts is lim ited,
th en , to the t r i a l of v io la tio n s o f the laws and usages o f war, and is
th e re fo re narrower than the Ju risd ic tio n o f, e .g ., the In te rn a tio n a l
M ilita ry Tribunal estab lish ed by the Pour-Power Agreement of 8 August 19^5
which, according to A rtic le 6 o f i t s C harter, has J u ris d ic tio n not only
over v io la tio n s of the laws and customs of war (A rticle 6 (b)) but also
over what the Charter callB "crimes ag ain st peace" and "crimes ag ain st
humanity" (A rticle 6 (a) and (c )).
A Court try in g only offences against the laws and usages of war
is not, however, lim ited to th t r i a l of offences ag ain st n atio n als of
the country whose a u th o ritie s s e t up the Court.** Thus, fo r instance
in the t r i a l of Otto Sandrck and Three Others before a B ritis h M ilitary
Court a t Almelo, Holland from 2H-26 November 19^5 (the Almelo T r ia l), a
B ritis h M ilita ry Court tr ie d and sentenced German n atio n als fo r offences
a g a in st, not only a B ritis h p riso n er of war, but a lso a Dutch c iv ilia n .
In the t r i a l by a B ritis h M ilita ry Court a t Singapore of w/o Tomono Shimio
o f the Japanese Army, the accused was charged, found g u ilty and sentenced
to death by hanging fo r having unlaw fully k ille d American p riso n ers of war
a t Saigon, French Indo-China. The locus d e lic ti commissi was French
te r r it o r y , the victim s were United S ta te s n a tio n a ls.

* See pages 13> and 1^5.

** See above, pages 125-6.

/The Ju risd ictio n
 E/CITA/w. 19
Page 285

The J u ris d ic tio n of A ustralian M ilita ry courts fo r the t r i a l of

alleged weir crim inals is ra th e r wider than th a t of the B ritis h and
Canadian M ilita ry Courts.
A rtic le 3 of the Commonwealth of A u stralia War Crimes Act of
11 October 19J+5 (No. U8 of 1945) s ta te s th a t:
"In th is Act, unless the contrary in te n tio n appears . . .
"war crime" means:
(a) a v io la tio n of the laws and usages of war; or
(b) any war crime w ith in the meaning of th e instrument of
appointment o f the Board of Inquiry appointed on the th ird
day of September, one thousand nine hundred and fo rty -fiv e ,
voider the N ational S ecu rity (in q u irie s) Regulations (being
S ta tu to ry Rules 19^1, No. 35 as amended by S tatu to ry Rules
19^1, Nos. 7^ and llH- and S tatu to ry Rules 19b2, No. 273),
committed in any place whatsoever, whether w ith in or beyond
A u stra lia , during any war.*
The Instrument of Appointment re fe rre d to s ta te s th a t the expression
"war crime" includes, in te r a l i a :
" ( i) Planning, p reparation, in itia tio n or waging o f a war of
aggression, or a war in v io la tio n o f in te rn a tio n a l tr e a tie s ,
agreements or assurances, or p a rtic ip a tio n in a common plan
or conspiracy fo r the accomplishment o f any o f the fo reg o in g .
This d e fin itio n of "crime ag ain st peace" is the same as th a t used
in A rtic le 6 (a) of the Charter attached to th e Four-Power Agreement
of 8 August 19^5. The e ffe c t of th is is th a t "crimes against peace"
form p a rt of the term "war crimes" as defined by th e A ustralian s ta tu te .
The A u stralian Act does n o t, on th e o th er hand, comprise in i t s
d e fin itio n of "war crims" crimes ag ain st humanity w ithin the meaning
of A rtic le 6 (c) o f the C harter o f th e In te rn a tio n a l M ilita ry T ribunal,
excepting o f course "crimes again st humanity" which a lso f a l l under the
term "v io latio n s o f the laws and customs o f war".

* The Preamble to the Act contains th e words: "Whereas I t is expedient

to make provision fo r the t r i a l and punishment of v io latio n s of the
laws and usages of war committed during any war in which His Majesty
has been engaged since the second day of September, one thousand
nine hundred and th irty -n in e , ag ain st any persons who were a t any
time re sid en t in A u stralia or ag ain st c e rta in other persons."

/Of p a rtic u la r
 e / cn. hAr. 19
Pago So6

Of p a rtic u la r in te re s t are those A ustralian provisions which

determine the t e r r i t o r i a l a p p licatio n o f th e Act and th e extent of
the J u ris d ic tio n o f the A u stralian M ilita ry C ourts, The Preamble
s ta te s the expediency of making provision fo r the t r i a l and puniehment
/
o f v io la tio n s of the la w and usages o f war committed ag ain st "any
persons who wore a t any time re sid e n t in A u stra lia o r against c e rta in
other persons". The main b a sis fo r the power of M ilita ry Courts is
Section 7 of the A ct, which provides th a t:
"A m ilita ry court s h a ll have power to t r y persons charged
w ith war crimes committed, a t any place whatsoever, whether w ithin
or beyond A u stra lia , ag ain st any pernor who was a t any time resid ent
in A u stra lia , and fo r thui: purpose, subject to any d ire c tio n by the
Governor-General, to s i t a t any place whatsoever, whether w ithin
o r beyond A u stra lia ."
A rtic le 12, however, adds th e following:
"The provisions of th is Act s h a ll apply in re la tio n to
war crimes committed, in any place whatsoever, whether w ithin or
beyond A u stra lia , against B ritis h su b jects or c itiz e n s of any Power
a llie d or associated with His Majesty in any war, in lik e manner
as they apply in r e la tio n to war crimes committed ag ain st persons
who were a t any time re sid e n t in A u stra lia ."
Under the Act the A u stralian M ilita ry Courts have, th e re fo re ,
J u ris d ic tio n in a l l cases where the victim has been e ith e r re sid en t
in A u stralia or a B ritis h or an a llie d su b je c t.
The J u ris d ic tio n of the A u stralian M ilita ry Courts does not extent
to crimes committed "against any c iv ilia n population", e .g ., ag ain st
n e u tra ls c r enemy su b jec ts, because crimes ag ain st other than B ritis h and
a llie d n atio n als are outside the scope of the term "war crime" as
defined in the A ustralian S ta tu te .
2 .- Uhlted S ta te s Provisions
As has been seen,* the U_. - ced S ta te s a u th o ritie s have made d iffe re n t
provisions fo r d iffe re n t t e r r i t o r i e s , and th e J u risd ic tio n s conferred
have not been the sace. The narrowest J u ris d ic tio n is th a t vested in
th e M ilita ry Commissions appointed in the M editerranean Theatre f
O pratidh. RT the M editerranean Regulations (Regulation 1) the
expression "war crim em ean s a v io la tio n o f the laws o r customs of war.
United S tates Commissions oth er than those appointed in the Mediterranean
Theatre of Operations have, however,been empowered to t r y other
offences in additio n to war crimes.

* -SbO"pages 157-59 where the relev an t provisions are s e t out.

/3 . The
3. Tho J u ri sd ic tlo n of Chinese War Crime Tribunals
A rtic le I I of the Chinese Law of 2b October 19A6, Governing
the T ria l of War C rininals provides th a t:
".Ar t i c l e I I . A person who commits an offence which f a lls
under any one of the following categories s h a ll be considered a
war crim inal.
1. A lien combatants or non-combatants who, p rio r to or
during the war, v io lated an In te rn a tio n a l T reaty, In te rn a tio n a l
Convention or In te rn a tio n a l Guarantee by planning, conspiring,
preparing to s t a r t or supporting, an aggression against the
Republic of China, or doing the same in an unlawful war.
2. A lien combatants, or non-combatants who during the war
or a period of h o s t i l i t i e s against the Ropublic of China,
v io la te the Law and Usages o f War by d ire c tly or in d ire c tly having
recourse to acts of c ru e lty .
3. A lien combatants or non-combatants who during the war
or a period of h o s tilitie s against th e Republic of China or
p rio r to the occurrence of such circum stances, nourish
in ten tio n s of enslaving; c rip p lin g , or a n n ih ila tin g th e
Chinese Nation and endeavour to carry out th e ir in ten tio n s
by such methods as (a) k illin g , starv in g , massacring,
enslaving, or mass deportation of i t s n a tio n a ls, (b) stupefying
the mind and c o n tro llin g the thought o f i t s n a tio n a ls,
(c) d is tr ib u tin g ,spreading, or forcing people to consume
n arco tic drugs or forcin g people to consume or be innoculated
w ith poison, or destroying th e ir power o f p ro creatio n , or
oppressing and tyrannizing them under r a c ia l or re lig io u s
p re te x t, or tr e a tin g them inhumanly.
A. A lien combatants or non-combatants who during the war
w ith , or a period of h o s t i l i t i e s against the Republic of
China, commit acts eth er than those mentioned in the three
previous sections but punishable according to Chinese
Criminal Law."
A rtic le I I I of the law enumerates th ir ty -e ig h t typoB of offences which
are to be deemed v io la tio n s of the laws and usages o f war w ithin the
meaning o f A rtic le I I , Section 2, but are said to be Included among the
offences mentioned in Section 2; the l i s t is not th erefo re to be
regarded as exhaustive.

/A rtic le IV
 A rtic le IV mokes the following provisions:
"A rtic le IV. A ll provisions under A rtic le I I apply to acta
committed between 18 September 1931 and 2 September 191*5 only,,
with th e exception of cases s e t out in Sections 1 and 3 which
are a lso subject to prosecution."
The p ro te c tio n of the Chinese Courts is n o t, however, afforded
only to Chinese N eticnals, Bince A rtic le VII proves th a t:
"Arci c i c V II. A lien combatants and non-combatants who
coianitted any of the offences provided under A rtic le I I against
the A llied Kations or th e ir n a tio n a ls, or ag ain st a lie n s under the
p ro te c tio n o f the Chinese Government are subject to the application
of the present Law."
I t w ill be noted th a t the Chinese War Crimes Law resembles the
A ustralian# in th a t both provide Courts acting under th e ir previsions
w ith J u risd ic tio n to tr y , in ad d itio n to alleged war crimes proper
(l.G ., v io la tio n s of the laws and usages of w ar), what may be termed
"crimes against peace" (c f. A rtic le I I , Section 1 of the Chinese Law)
b u t not such crimes against humanity as do not a t the same time represent
war crimes. Thus, while offences against c e rta in types 01 victim s
other than Chinese and A u stralian N ationals may be tr ie d before
Chinese and A ustralian Courts resp ec tiv e ly ( c f . A rtic le VII of
the Chinese provision and A rtic le 12 of the A u stra lia n ), offences by
enemy natio n als against enemy n atio n als d e fin ite ly cannot be so tr i e d .
1*. J u ris d ic tio n of the flrec-K Courts over War Criminals
Under the provisions of the Greek C o n stitu tio n al Act 73/19^5
(Government G azette, page 250), enemy n a tio n als may be tr i e d before
Greek War Crime Courts fo r any offence which would be a v io la tio n of
A rtic le 6 of the Charter of the In te rn a tio n a l M ilita ry T ribunal. The
Greek Courts th erefo re have J u ris d ic tio n over crimes ag ain st humanity
and crimes against peace as w ell as over war crimes.#* Acts which
c o n stitu te offences again st the Greek Penal Code may also be brought
before such Courts when they have been committed by enemy n atio n als
and were not ju s tif ie d by the laws and usages of war.

* See page 285,

*# See a sim ilar Danish pro v isio n re fe rre d to on page 239, For the
provisions o f A rtic le 6 o f the C harter, see Chapter I , Section B.

/5 . Jurisdiction
5. J u r is d ic t ion w e r Treasonable Acta
I t should be noted th a t the Belgian, Czechoslovak, P olish and
Yugoslav enactments mentioned alove* provide fo r the t r i a l , not only
of war crimes but also of act3 c f a treasonable n atu re.
6, The Ju ri s alcfcicn of Belgian M ilita ry Tribunals over War Crimes
and C ertain Treasonable Acts
A rtic le 2 of the Belgian Lav of 20 June 19^7, re la tin g to the
competence of Belgian M ilita ry Tribunals in the m atter of war crimes
provides th a t:
"Ar t i c l e 2 . Crimes f a llin g w ithin th e J u ris d ic tio n of the
Belgian Criminal Code committed in v io la tio n o f the laws and
customs of war between 9 May 19!^0 and 1 June 19^5, by persona
who, a t the time of ta e commission of the offence, were in the
enemy forces or the forces a llie d to those of the enemy o f whatever
standing, but e sp e c ia lly in the capaoity of a functionary in the
J u d ic ia l and adm inistrative serv ice s, in th e m ilita ry or a u x ilia ry
services as an agent or Inspector o f an organization, or a member
o f a fondation of any s o rt whatever, who is charged by such persona
w ith a mission of any nature a t a l l , s h a ll be tr i e d by m ilita ry
trib u n a ls in accordance with the provisions o f th is p resen t law and
those which are not contrary to Wie Cede of M ilita ry Penal Procedure.
Apart from th is general enactment th ere e x ist c e rta in other
provisions r e la tin g to the competence of M ilita ry Courts over war crimes
and treasonable offences committed outside of Belgium.
A rtic le 1 of the above-mentioned law s ta te s th a t:
"A rtic le 1 . A rtic le 2 of the Decree of 5 August 19^3,
is replaced by the following te x t:
A rtic le 10 of the Prelim inary Chapter of the Code of
Criminal Procedure, which enumerates the cases in which a
foreigner can be t . cd in Belgium fo r crimes committed outside
the te r r it o r y of the Kingdom, is completed by the addition
of the following paragraph:
*4. In time of war, ag ain st a Belgian c itiz e n or a
foreigner re sid e n t in Belgium a t the time of th e outbreak
of h o s t i l i t i e s , a crime o f homicide, w ilfu l bodily
in ju ry , rap e, indecent a ss a u lt or denunciation of tho
enemy'

* See pages l?-9 and 130-1

/The o rig in a l
E/CN.M .19
Pago 29O

The o rig in a l A rtic le 2 made the same provision except fo r the

omission of the words "or a fo reig n er re sid en t in Belgium a t the time
of the outbreak of h o s t i l i t i e s " .
A rtic le s 1 and 3 of the Decree of 5 August 19^3* have been amended
by an Act of Parliament o f 30 A p ril 19^7 which providos as follow s:
"Art i c l e 1
A rtic le 1 of the decree of 5 August 19^3 conferring
exceptional ju ris d ic tio n on the Belgian courts in th e m atter of
c e rta in crimes and misdemeanours committed outside n a tio n a l
te r r it o r y in time o f war is replaced by the following a r t i c l e :
"The fallow ing ad d itio n s h a ll be made to A rtic le 8
of the prelim inary chapter of the Code of Criminal Procedure:
'A Belgian who, in time of war, committed outside
n a tio n a l t e r r it o r y a crime or misdemeanour ag ain st a
n a tio n al of a country a llie d to Belgium as defined in
paragraph 2 o f A rtic le 117 o f the Criminal Code, can be
tr ie d in Belgium, e ith e r on the request of the injured
foreigner or f h is fam ily, or on re c e ip t of an o f f ic ia l
notice Berved to the Belgian a u th o ritie s by th e a u th o rities
of the country where th e crime was committed or o f
the country o f which the injured p a rty is or has been a
national. This ap p lies even i f the crime is not one of
those mentioned in the law of e x tra d itio n '" ."
"A rticle 2
A rtic le 3 of th e decree of 5 August 19^3, is replaced by
the follow ing:
"A rticle 12 of th e prelim inary chapter o f the Code o f
Criminal Procedure is replaced by th e following a r t i c l e :
'Except in cases covered by Nos. 1 and 2 of
A rtic le s 6 and 10, th e t r i a l o f crimes d e a lt w ith in the
present decree oan only be held i f the accused is arrested
in Belgium.
'However, when the crime has been committed in time
of war, th e t r i a l can be held in a l l cases, provided the
accused is a B elgian, even i f he ie not a rre ste d in
Belgium, but i f the accused is a fo reig n e r, the t r i a l
can be held i r Belgim i f the accused i found in enemy
te r r it o r y of i f h is e x tra d itio n can be obtained; the tr i a l
can a lso be held in Belgium in the cases mentioned in the
preceding p arag rap h '"."
/7 . Ju risd ic tio n
 E/CN.1*AM9
Pago 29I

7* J u ris d ic tio n c f the P eople's Courts In Czechosslovakla over

War Criminals and T raito rs
The Czechoslovak Decree No. l 6 of 19U5, as amended hy Law No. 22
of 2h Janucry 19*:6, makes d e ta ile d provisions regarding the types
of offences punishable thereunder and the p e n a ltie s attach in g to each
category of offencos. The following provisions are of p a rtic u la r in te re s t:
( i) Section 1 of the Decree provides th a t:
"Any person who during th e period of imminent danger to the
Republic (see paragraph I) committed, e ith e r on the '
te r r it o r y of the Republic or outside i t , any of the following
offences under the Law on the Defence of the Republic of
19 March 1923, No. 50 in the C ollection of Laws, is to be
punished according to th e provisions se t out below:
conspiracy again st the Republic (paragraph 1) is to be
sentenced to death;
any person g u ilty of planning conspiracies (paragraph 2) ,
or of th re a t to the se c u rity of the Republic (paragraph 3 ),
treason (paragraph A rtic le l ) , b e tra y a l o f S ta te se c re ts
(paragraph 5, A rtic le l ) , m ilita ry treach ery (paragraph 6,
A rtic le s 1, 2 sind 3) or of violence against co n stiu tio n al
agents (paragraph 10, A rtic le 1 ), is to be sentenced to penal
servitude fo r a period varying frem twenty yearfi to a l i f e
sentence and in the case of e sp e c ially aggravating circumstances
3 to be sentenced to d eath ."
(ii) Section 2 of the Decree makes i t a punishable offence to have
been a t the time of imminent danger to the Republic a member
of the following organizations: Die S ch u tzstaffeln der
N atio n also z ia listisc h e n Deutschen A rb e ite rp a rte i (SS),
F re iw illig e S ch u tzstaffeln (F .S .), Rodobrana (a Slovak f a s c is t
organization) or the Szabadcsapatok (a Hungarian f a s c is t
organization activ e during the war in the Hungarian occupied
p a rt of Czechoslovakia), or of o th er, not enumerated,
organizations of a sim ilar kind."
(iii) According to paragraph 1 of Section 3s
" (l) Any person who during the period of imminent danger
to the Republic (tee paragraph 18) carrie d out propaganda fo r
or supported the Nazi or F a sc ist movement, or who approved or
defonded the enemy government on the te r r it o r y of the Republio
or any of the ille g a l a c ts of the occupation High Command and the
a u th o ritie s and organs under i t s orders during th is period in

/th e p ress,
e / cN .V v .19
Pace 292

the p re ss, on th e w ir 'le s s , in /ilm s o plays or a t public .

gatherings; s h a ll, i f not g u ilty of an offence punishable by
a severer p en alty , be sentenced fo r h is crime to penal
servitude fo r from fiv e to twenty y ears, but i f he committed
the said crime w ith the in te n tio n of destroying the moral,
n a tio n a l c r s ta te consciousness o f th Czechoslovak people,
and e sp e c ially of Czechoslovak youth, he s h a ll be sentenced
to penal servitude fo r from te n to twenty years and in the
presence of esp e c ially aggravating circumstances to penal
servitude fo r a period varying from twenty years to a l i f e
sentence or to death."
(iv) Under Section 3, paragraph 2, a person who, a t the time
. of imminent danger to the Republic, was a f-.metionary or
cfcmmander in one of c e rta in org an izatio n s, is punishable
by hard labour from fiv e to twenty y ears. The organizations
a re : the Nazi P a rty , the Sudotendeutsche P a rte i (the p arty
led by H enlein), Vlajka (a Czechoslovak Q uisling organization),
. ELinkova Garda (a Slovak M ilita n t Q uisling o rg a n iz atio n ).
Here i t i s not membership as such, th t e sta b lish e s tho
crim inal l i a b i l i t y , since only fu n ctio n aries or commanders
in these organizations are to be punished.
(v) Section G of the Decree makes the ordering o f forced
labour and the taking p a rt in giving e ffe c t to such orders,
during the same period of danger, a crim inal offence.
The punishment is to be more severe i f forced labour was
connected w ith d ep o rtatio n abroad.
(v i) Section 7 of th e T -cr makes i t a crim inal offence,
punishable by death or le s s e r p e n a ltie s , to have caused,
during the same period, lo ss of lib e r ty or bodily harm
in the in te re s ts of Germany or her A llie s . Under the
express provision of paragaraph 3 of Section 7 th is
applies also to causing such an e ffe c t by means of a
court decree or an ad m in istrativ e d ecisio n . A la te d
provision is th a t of Section 11, which provides sanctions
fo r denunciations e ffe cted in the in te re s ts of tho enemy.
I f the loss of i i f e was th e e ffe c t of such denunciation,
4 the. death p en alty may be imposed; otherwise such denunciations
are punishable by hard labour from te n to twenty y ears, and
.under aggravating circumstances by l i f e imprisonment.

/ ( v i i ) Offences
 e / c; A / w .19
Page 293

(v ii) Offences against property during the same period and

cloaked In the form o f ju d ic ia l or o f f ic ia l a c ts , are
a lso punishable (Sections 8 and 9)*
( v ii i) Section 10 makes i t a punishable effenco to have
ex ploited, a t the time of the imminent danger to the
Republic, the d is tre s s caused by n a tio n a l, p o litic a l or
r a c ia l persecution, in order to enrich one's s e lf ,
to the detrim ent of the S ta te , a le g a l corporation or
* any person.
(ix ) Section 12 provides th a t:
"Under J is law any fo reig n er vho committed the crime
mentioned In Section 1, or any of th e crimes mentioned
in Sections U-9 while on foreign t e r r it o r y , s h a ll be
punished i f he committed them ag ain st a Czechoslovak
c itiz e n or again st Czechoslovak public o r p riv a te
p roperty."
(x) The "time o f the imminent danger to the Republic" is
defined in Section 18 o f the Decree as the time between
21 May 1938 the time of the f i r s t Czechoslovak
m obilization against the th re a t o f German invasion, and
a day to be appointed by Government decree.
The Slovak Decree No. 33/l9^5 as amended by Decree Nos. 83/19^5
and 57/ l 91l-6 se ts out d e ta ile d provisions defining various types of
q u islings and c o lla b o rato rs, and the punishment to be meted out to
each. In ad d itio n , Section 1 of the Decree s ta te s th a t:
"Any foreign national* who
(a) has supported the dismemberment of the Czechoslovak
Ropublic or d estru ctio n of i t s democratic government, or who
(b) has taken p art in p o l itic a l, economic or any other
kind of oppressicr of the Slu/ak n atio n , e sp ecially any
person who has te rro riz e d or plundered the Slovak people,
fought w ith the Germany Army on the te r r it o r y of the
Czechoslovak Republic against the Red Army, the other A llied
A m ies, the Slovak uprising or the p a rtisan s in Slovakia,
c r who has in the course of such a ctio n committed murder,
robbery, arson, ex to rtio n , or has been an informer or
committed other outrages o r acts of violence or been in the
service of Nazi Germany o r Horthy's Hungary, or has ordered
or aided the deportation of Slovak natio n als abroad, or
been g u ilty of any eth er a ct against the Slovak n atio n al
in te r e s t, s h a ll be sentenced to death fo r h is crime."
* I t a l i c s in serted
/ 8. ju ris d ic tio n
6 J u ris dictio n of P o lish Courts over War Crimes and Treasonable Activities
The types of offences which f a l l w ithin the ju ris d ic tio n
o f the Polish Courts fo r th e t r i a l of alleged war crim inals and
t r a i t o r s axe su ccin ctly s e t out in A rtic le s 1, 2, 3, U and 9 of
the Decree o f 11 December 19*^6, which provide as follow s:
"A rticle 1
Any person who, a s s is tin g the a u th o ritie s of the German
S ta te , or o f any S ta te a llie d with i t ,
1. took p a rt in committing acts of murder ag ain st the
c iv ilia n populatic -, memLers of th e armed forces or
prisoners of war; or
2. by giving inform ation or d etain in g , actin g to the
detrim ent of persons wanted or persecuted by the a u th o ritie s
on p o l itic a l, n a tio n a l, re lig io u s or r a c ia l grounds,
is lia b le to the death p en alty ."
"A rtic le 2
Any person, who, a s s is tin g the a u th o ritie s of th e German
S ta te , or of a S ta te a llie d w ith i t , acted in any other
manner or in any other circumstances than those indicated
in A rtic le 1 to the detrim ent of the P o lish S ta te , or of a
P olish corporate body, or of c iv ilia n s , members o f the
armed forces or p riso n ers c f war,
is lia b le to imprisonment fo r a period of not le s s than
three years, or fo r l i f e , or to the death p en alty ."
"A rtic le 3
Any person who, taking advantage o f the conditions
created by the war, compelled persons to a c t under th re a t
o f persecution by the a u th o ritie s o f the German S ta te , or
by a S ta te a llie d w ith i t , or acted in any other manner to
the detrim ent of persons wanted or persecuted by the said
a u th o ritie s ,
is lia b le to imprisonment fo r a period of not less than
th ree years, or fo r l i f e , "
"A rtic le paragraph 1
Any person who was a member of a crim inal organization
estab lish ed or recognized by the a u th o ritie s of the Gorman
S ta te c r of a S ta te a llie d w ith i t , or by a p o litic a l
asso c iatio n which acted in the in te re s t of th e German S ta te ,
o r a S ta te a llie d w ith i t ,
is lia b le to imprisonment fo r a period o f not le s s than
th ree years, or fo r l i f e , or to the death p en alty .
/Paragraph 2
 E/C!T.UAf.l9
Page 295

Paragraph 2
A crim inal organization in the meaning of paragraph 1 is
a group or organization:
(a) which has as i t s aim the commission of crimes against
peace, war crimes or crimes against humanity; or
(b) which while having a d iffe re n t aim, tr i e s to a tta in i t
through the commission of crimes mentioned under ( a ) .
Paragraph 3
Membership of the following organizations e sp e c ia lly is
considered crim inal:
(a) the German N ational S o c ia lis t Workers' P arty (N ational
S o z ia listisc h e Deutsche A rbeiter P a rte i - NSDAP) as regards
a l l leading p o sitio n s,
(b) the S ecu rity Detachments (S ch u tzstaffeln - 3 . S . ) ,
(c) the S ta te S ecret P olice (Geheime S ta a ts-P o liz e i - Gestapo),
(d) the S ecurity Service (S ich erb eits D ienst - S.D )."
"A rtic le 9
The provisions of the present Decree are applicable to
crim inal acts committed between 1 September 1939 and 9 May 19^5"
A rtic le 6 provides th a t:
"A rtic le 6
To inform against or to hand over to the a u th o ritie s
of the German S ta te , or o f a S ta te a llie d w ith i t , persons
wanted fo r a common crime is not punishable, provided the
person responsible for giving inform ation or handing over
acted In the g re a te r public or p riv a te in te r e s t."
9. J u ris d ic tio n of Yugoslav Courts over V?.r Crimes and
Treasonable A c tiv itie s
A rtic le s 2 and 3 of the Yugoslav Law of 25 August 19^5> s e t out
the types of offences which f a l l w ithin the J u risd ic tio n of Courts
acting under th a t Law.
"A rticle 2
1. As a crim inal a ct against th e people and the S tate is
considered an a c t aimed a t the fo rc ib le overthrow of or th re a t to
the e x istin g S ta te system o f Democratic Federal Yugoslavia, or
any menace to i t s foreign s e c u rity , or to the basic democratic,
p o l i t i c a l , n a tio n al and economic achievements o f the lib e ra tio n
war, e .g ., the Federal stru c tu re of the S ta te , th e e q u ality and
f r a te r n ity o f the Yugoslav peoples, and the system o f the
p eople's a u th o ritie s .
/2 . As a crim inal
E / cN .V m.19
Page 296

2. As a crim inal a c t under th is Law any a c t o u tlin ed in the

preceding paragraph d ire c ted ag ain st the s e c u rity o f o th er S tates
w ith which Democratic Federal Yugoslavia has a tr e a ty o f a llia n c e ,
frien d sh ip o r co-operation, is punishable w ith due regard to the
p rin c ip le of re c ip ro c ity ."
"A rtic le 3
As g u ilty of crim inal a c ts under A rtic le 2, th e follow ing
s h a ll be lia b le to punishment:
1. Any person who undertakes an a c t aimed a t the fo rc ib le
overthrow of th e p eo p le's re p re se n ta tiv e body o f Democratic
Federal Yugoslavia or of th e Federative U nits, or a t
overthrowing th e Federal o r Federative U n its, organs of
supreme S tate ad m in istratio n , or th e lo c a l organs of S ta te
adm in istratio n , o r a t preventing these by menace from
f u l f i l l i n g th e ir le g a l rig h ts and d u tie s , o r a t compelling
them to f u l f i l those to the end d esired by th e person thus
exercising fo rce.
2. Any subject of Yugoslavia who commits an a c t to
the detrim ent of the m ilita ry stre n g th , the defensive
capacity or the economic power o f Democratic Federal
Yugoslavia, or which th reaten s the independence or
in te g r ity of i t s t e r r it o r y .
3. Any person who,commits a wem:.crime, i . e . , who during the
war or the enemy occupation acted as in s tig a to r or organizer,
or who ordered, a s s is te d or otherwise was the d ire c t executor
o f murders, of condemnations to the punishment o f death and
the execution of such, or of a r r e s t s , to r tu r e , forced
deportation or removal to concentration camps, of in te rn in g ,
or o f forced labour of the population of Yugoslavia; any
person who caused the in te n tio n a l sta rv a tio n o f the
population, compulsory lo ss o f n a tio n a lity , compulsory
m obilization, abduction fo r p r o s titu tio n , o r rap in g , or forced
conversion to any oth er f a ith ; any person who under these
circumstances was responsible fo r my denunciation re s u ltin g in
any o f th e measures o f te r r o r or te r ro r iz a tio n o u tlin ed in th is
paragraph, or any person who in these circumstances ordered
o r committed arsen , d e stru ctio n or lo o t o f p riv a te or public
property; any person who entered th e service o f th e t e r r o r is ti c
or p o lic e organizations of the occupying fo rce s, or th e service
o f any prison or concentration or labour camp, or who tre a te d
Yugoslav subjects and prisoners-of-w ar in an inhumane manner.

/k . Any person
 e /CN.V w.19
Page 297

k. Any person Vhfi during the var organized or re c ru ite d

others to e n te r, or him self entered any armed m ilita ry
or police organization composed of Yugoslav su b jec ts, fo r
the purpose of a s s is tin g the enemy and fig h tin g w ith the
enemy against h is own Fatherland, accepting from the
enemy arms and subm itting to the orders of the enemy.
5. Any person who during th e war ag ain st Yugoslavia or
against the a llie s of Yugoslavia, accepted service in the
enemy army, or took p a rt in the war as a fig h te r ag ain st
h is Fatherland or i t s a l l i e s .
6. Any person who during the war and enemy occupation
entered the p o lice service or accepted service in any
organ of enemy a u th o rity , or a ss is te d these in the execution
of re q u is itio n orders fo r the taking of food and other goods,
or in the pursuance of any other measures o f force ag ain st the
population of Yugoslavia,
7 . Any person who organized armed re v o lt or took p a rt
in t h i s , or organized armed bands or th e ir ille g a l e n try
to the te r r it o r y of the S tate fo r th e purpose of e ffe c tin g
a c ts outlined in A rtic le 2 o f th is Law, o r any person
who abandoned h is place of residence and joined any armed
end organized group fo r the commission of such acts,.
8. Any person who in th e country or o u tsid e, organized
any a sso ciatio n having f a s c is t aims, fo r the execution of
any a c t o u tlin ed in A rtic le 2 of th is Law.
9. Any c itiz e n of Yugoslavia who in c ite s a foreign
S ta te to war ag ain st h is F atherland, or to armed in terv en tio n ,
to economic w arfare, to seizu re o f any property o f Democratic
Federal Yugoslavia, o r of i t s su b jec ts, to the rupture of
diplom atic re la tio n s , the can cellatio n of in te rn a tio n a l tr e a tie s ,
or to any in terferen ce in th e in te rn a l a f f a ir s of h is Fatherland,
or who in any way whatsover a s s is ts any foreign S ta te a t war
w ith Yugoslavia.
10. Any person who c a rrie s out espionage, i . e . , who e ith e r
hands ovor or s te a ls o r c o lle c ts data and dccunwuts which
by th e ir content c o n stitu te any p a rtic u la rly guarded S ta te
or m ilita ry sec re t fo r the purpose of handing such information
to any foreign S ta te , or any f a s c is t or enemy organization,
or any unknown person.
111. Any person
E / cN .V w.19
Page 298

11. Any person vho during the var undertook any actio n
allied a t any defensive o jb ects o r p o sitio n s or any means
fo r waging war or other war needs passing to enemy hands or
"being destroyed or put out o f serv ice , or th e use o f these
being fru s tra te d , or a ctio n re s u ltin g in the Yugoslav Army
or th e armieB of any a llie d lands or any in dividual so ld iers
f a llin g in to enemy hands, or in any m ilita ry e n te rp rise or
measure being hindered or endangered.
12. Any person vho k i l l s any m ilita ry person or representative
or person in the service of th e peoples a u th o ritie s e ith e r
when these are carrying out th e ir o f f ic ia l d u tie s or because
of th e s e , or commits such a c t ag ain st any person o f an a llie d
or frie n d ly S ta te .
13. Any person who fo r the purposes o u tlin ed in A rtic le 2
destroys o r damages by arson or any o th er means any
tra n s p o rt, build in g or other m a te ria l, any w ater supply
system, public warehouse or any public p ro p erty ."
10. J u ris d ic tio n of the M ilitary Government Courts Set Up in Germany
The J u ris d ic tio n of the M ilita ry Government Courts s e t up
by General Eisenhower as Supreme Commander was defined in A rtic le I I
of Ordinance Ho. 2* as follow s:
"1. K i l i cary Government Courts s h a ll have J u ris d ic tio n over a l l
persons in the occupied te r r it o r y except persons oth er than
c iv ilia n s vho are subject to m ilita ry , naval or a i r force law and
are serving under the command o f th e Supreme Commander, A llied
Expeditionary Force, or any o th er Commander o f any forces o f the
Chited N ations.
"2. M ilita ry Government Courts s h a ll have J u ris d ic tio n over:
(a) A ll offences ag ain st the laws and usages of w ar.
(b) A ll offences under any proclam ation, law, ordinance,
n o tice or order issud by or under th e a u th o rity o f the
M ilita ry Government o r-o f th e A llie d Forces.
(c) A ll offences under the laws o f th e occupied te r r it o r y
or of any p a rt th e re o f."
As has'been"seen,** these Courts continued tc e x is t in the B ritis h Zone,
from the time when th e l a t t e r came in to existence u n til the s e ttin g up

* See page I 32.

** See page 134.

/o f the
 e / cnA / w.19
Page 299

of the Control Commission C ourts, under Ordinance No. 68 of the B ritis h

Zone. Paragraph 2 of Ordinance No. 68 makes the same provision
a3 A rtic le I I , paragraph 1 of the Supreme Commanders No. 2, with the
su b stitu tio n of "Control Commission Courts" fo r "M ilitary Government
Courts", of "B ritish Zone" fo r "occupied te r r ito r y " , and of
"Commander-In-Chief" for "Supreme Commander, A llied Expeditionary Porce"
For purposes of g re a ter c la r ity , commas have been placed a t the
boginninc and end of the phrase "other than c iv ilia n s " .
Paragraph 3 of Ordinance No. 68 makes the following provision,
which is sim ila r to th a t of paragraph 2 o f A rtic le I I o f Ordinance No. 2
"Criminal J u ris d ic tio n
3. Control Commission Courts s h a ll have J u risd ic tio n to try :
(a) A ll offences against th e laws and usages of war;
(b) A ll offences under any proclam ation, law, Ordinance,
Notice or Order Issued by or under the a u th o rity o f the A llied
Control Council fo r Germany in force in th e B ritis h Zone,
or by or under the a u th o rity of th e Supreme Commander of
th e A llied Forces or of th e Commander-in-Chief;
(c) A ll offences against German law."
Paragraph h of Ordinance No. 68 adds a provision re la tin g to
c iv il J u ris d ic tio n :
'A. The Control Commission Courts s h a ll exercise such
J u ris d ic tio n in c i v i l m atters as the Commander-in-Chief may by
order published in the G azette, from time to time d ir e c t."
A rtic le s 1 and 2 of Ordinance No,. 20 of the French High Command
in Germany* provide th a t:
"A rtic le 1
M ilitary Government Tribunals are competent to tr y a l l
war crimes defined by in te rn a tio n a l agreements in force between
the occupying Powers whether the authors of such war crimes,
committed a f te r 1 September 1939 are o f enemy n a tio n a lity or
are agents, other than Frenchmen, in the service of the enemy,
and whenever such crimes have been' committed outside of France
or t e r r it o r ie s which were under the a u th o rity of Franco a t the
time when the crimes were committed."
"A rtic le 2
Those crimes are punishable by a l l the p en alties which
such Tribunals are empowered to pronounce, including the death
p enalty."

* Seo page 13^.

/Article 1
E/CN.Vw .19
Page 300

A rtic le 1 of Ordinanc Mo. 36 lays down th a t:

"M ilitary Government Tribunals in the French Zone of
Occupation in Germany are competent, in v irtu e of Law No. 10
of the A llied Control Council concerning the punishment of
persons responsible fo r war crim es, crimes ag ain st peace and
crimes against humanity, to t r y the crimes s e t out in th a t law."
The provisions of Law No. 10 which are important in th is
connection are those contained in A rtic le I I , of which paragraphs 1
and 2 run as follow s:
"1. Each of the following acts is recognized as a crime:
(a) Crimes Against Peace. I n itia tio n of invasions of
other countries and wars of aggression in v io la tio n of
in te rn a tio n a l laws and tr e a t i e s , including bu t not lim ited
to planning, p rep aratio n , in itia tio n or waging a war o
aggression, or a war o f v io la tio n of in te rn a tio n a l tr e a tie s ,
agreements or assurances, or p a rtic ip a tio n in a common plan
or conspiracy fo r the accomplishment of any of -the foregoing.
(b) War Crimes. A tro c itie s or offences ag ain st persons
or property c o n stitu tin g v io la tio n s of the laws or
customs of w ar, including bu t not lim ited to , murder, ill-treatm ent
or deportation to slave labour or fo r any oth er purpose,
of c iv ilia n population from occupied t e r r it o r y , murder or
ill-tre a tm e n t o f prisoners of war or -persons on the se a s,
k illin g o f hostages, plunder of public or p riv a te property,
wanton d e stru c tio n of c i t i e s , towns or v illa g e s , or
devastation not J u s tif ie d by m ilita ry n e ce ssity .
(c) Crimes ag ain st Humanity. A tro c itie s and offences,
including b u t not lim ited to murder, exterm ination,
enslavement, d ep o rtatio n , imprisonment, to r tu r e , rape, or
other inhumane a c ts committed ag ain st any c iv ilia n population,
or persecutions on p o l i t i c a l , r a c ia l or re lig io u s grounds
whether or not in v io la tio n o f the domestic laws of the
country where p e rp etrated .
(d) Membership in categories of a crim inal group or
organization declared crim inal by the In te rn a tio n a l M ilitary
T ribunal.
"2. Any person w ithout regard to n a tio n a lity or the capaoity
in which he acted , is doomed to have committed a crime as defined
in paragraph 1 o f th is A rtic le , i f he was (a) a p rin c ip a l or
(b) was an accessory to the commission o f any such crime or ordered
or abetted the same or (c) took a consenting p a rt th e re in or
/(d ) was
 E/CN.^/W.19
Page 301

(d) was connected w ith plahS or e n terp rises involvihg i t s

coramiosion or (e) was a member of any organization or group
connected v ith the commission of any such crime or (f) with
reference t o .paragraph 1 (a ), i f be held a high p o l itic a l, c iv il
or m ilita ry (including General S ta ff) p o sitio n in Germany or
in one of i t s A llie s , c o -b ellig eren ts or s a t e l l i t e s o r held
high p o sitio n in fin a n c ia l, in d u s tria l or economic l i f e of
any such country."
In the United S ta te s Zone of Germany, M ilita ry Government Courts
continued to operate under Ordinance No. 2 of the Supreme Commander
a fte r establishm ent of the four a llie d Zones,* but were la te r supplemented
by the s e ttin g up of M ilita ry Tribunals under Ordinance No. 7 o f the
M ilitary Government of the United S tates Zone, which enactment became
effective on 18 October 19^6.**
A rtic le s I and I I (a) in f u l l of Ordinance No, 7 provide th a t:
"A rtic le I , The purpose of th is Ordinance is to provide
fo r the establishm ent of m ilita ry trib u n a ls which s h a ll have
power to tr y and punish persons charged w ith offences
recognized as crimes in A rtic le I I of Control Council Law
No. 10, including conspiracies to commit any such crimes.
Nothing h erein s h a ll prejudice the J u ris d ic tio n or the powers
of other courts estab lish ed or which may be estab lish ed fo r
the t r i a l of any such offences.
"A rtic le I I (a) Pursuant to the powers of the M ilitary
Governor fo r the United S tates Zone of Occupation w ithin
Germany and fu rth e r pursuant to the powers conferred upon
the Zone Commander by Control Council Law No. 10 and
A rtic le s 10 end 11 of the Charter of the In te rn a tio n a l M ilitary
Tribunal annexed to the London Agreement of 8 August 19^5,
c e rta in trib u n a ls to be known as "M ilitary Tribunals" s h e ll be
estab lish ed hereunder."
A rtic le I I of Control Council Law No. 10 which is re fe rre d
to in A rtic le I of Ordinance No. 7 has already been quoted.***
A rtic le s 10 and 11 of the Charter of the In te rn a tio n a l M ilitary
Tribunal, to which sp e c ific reference is made in A rtic le I I of
Ordinance No. 7, and im p lic it reference in A rtic le I I , 1 (d) of

* See page 133.

** See page I 35.

*** See pago 300,

/Law No. 10,
-E/Ctt.k/W.19
Pago 302

Law No. 10, makes the following provisions:

"A rtic le 10. In cases Where a group or organization Is
declared 'criminal by the Tribunal, the competent n atio n al
a u th o rity of any Signatory s h a ll have the rig h t to b rin g
individuals to t r i a l f o r membership th e re in before n a tio n a l,
m ilita ry or occupation c o u rts. In any such case the crim inal nature
of the group or organization is considered proved and s h a ll not
be questioned.
"A rtic le 11. Any person convicted by the Tribunal may be
charged before a n a tio n a l, m ilita ry o r occupation c o u rt, re fe rre d
to in A rtic le 10 o f th is C harter, w ith a crime other than of
membership in a crim inal group or organization and such court may,
a f te r convicting him, impose upon him punishment independent of
and ad d itio n a l to the punishment imposed by th e Tribunal fo r
p a rtic ip a tio n in the crim inal a c tiv itie s of such group or
organization."
In i t s judgment of 30 September and 1 October 19^6, the In te rn a tio n a l
M ilita ry Tribunal came to c e rta in decisions regarding the c rim in ality
of the Gestapo and S.D ., the S.S, and the Leadership Corps of the
Nazi P arty;* in doing so i t acted in accordance w ith A rtic le 9 of
i t s Charter which s ta te s th a t:
"A rtic le 9 At the t r i a l of any in d iv id u al member o f any
group or organization the Tribunal may declare (in connection w ith
any a c t o f which the in d iv id u al may be convicted), th a t the group
or organization of which th e in dividual was a member was a crim inal
organization
C ertain organizations and p a rts of organizations having thus been
declared crim inal by the Nrnberg In te rn a tio n a l M ilita ry Tribunal,
a lle g a tio n s of membership in such organizations are included in the
charges against many, i f not most, o f th e defendants a t presont being
tr i e d a t Nrnberg before M ilita ry Tribunals s e t up under Ordinance No. 7,
and th e power of these Tribunals to fin d an accused g u ilty of such
membership a ris e s from A rtic le I I (a) of th a t Ordinance which has been
quoted above.**

* See B ritis h Command Paper, Cmd. pages 66-83.

** For d e ta ils o f the J u ris d ic tio n of the Spruchkammern in the B ritis h
and United S tates Zones over cases involving membership of crim inal
organizations, see P a rt I I of the Report.

/in t r i a l s
 E/cN.U/w .19
Page 303

In t r i a l s before the M iliifiy Tribunals a ctin g under Ordinance No. 7

the crim inal nature o f groups or Organisations declared crim inal
by tho In te rn a tio n a l M ilitary Tribunal cannot be questioned, and in
a very sim ila r vay the ordinary M ilitary Government Courts in the
United S ta te s Zone are bound by a d ire c tiv e o f 26 June 19J*6, issued
by Headquarters, United S tates Forces, European Theatre, vhlch
contained c e rta in new provisions as to the t r i a l of persons accused
of being p a rtic ip a n ts in mass a tr o c itie s when the p rin c ip a l p a rtic ip a n ts
in such a tr o c itie s had already been convicted. A fu rth e r d ire c tiv e
was issued by Headquarters, European Theatre on 11 Ju ly 19H6, and
th is in tu rn was replaced by one dated lU October 19U6, extending to
General M ilita ry Government Courts th e J u ris d ic tio n in th is m atter
which had previously re ste d only w ith Interm ediate M ilita ry Government
Courts.
The D irective o f lU October 19^6 contains in i t s paragraph 12
d e ta ile d provisions under the heading "Mbsb A tro city Subsequent
Proceedings", I t is th e re re c a lle d th a t " c e rta in mass a tro c ity cases
have heretofore been t r i e d , i . e . , HBdamar, Dachau and Mauthausen cases,
wherein the p rin c ip a l p a rtic ip a n ts of th e resp ectiv e mass a tr o c itie s
were charged w ith v io la tin g the laws and usages of war under p a rtic u la rs
alleging th a t they acted in pursuance of a common design to subject
persons to k illin g s , beatin g s, to r tu r e , s ta rv a tio n , abuses and in d ig n itie s ,
or p a rtic u la rs s u b sta n tia lly to the same e f f e c t. The courts pronounced
sentence in those cases involving imprisonment and death and o f n e ce ssity ,
in view of the Issues involved th e re in , found th a t th e mass a tro c ity
operation involved in each was crim inal in nature and th a t those
involved in the mass a tr o c itie s actin g in pursuance of a common design
did subject persons to k illin g s , b eatin g s, to rtu re s , e tc ." The D irective
now provides, w ith regard to subsequent proceedings against accused other
than those involved in i n i t i a l or "parent" mass a tro c ity cases, in te r a l i a ,
th a t: "In such t r i a l of a d d itio n al p a rtic ip a n ts in the mass a tro c ity ,
the prosecuting o ffic e r w ill fu rn ish the court c e r tif ie d copies of the
charge and p a rtic u la rs of the findings and sentences pronounced in
the parent case." Thereupon the court "w ill take Ju d ic ia l n otice of the
decision rendered in the parent case, including the finding of the
court (in the parent case) th a t the mass a tro c ity operation was crim inal
in nature and th a t the p a rtic ip a n ts th e re in , actin g in pursuance of
a common design, did subject persons to k illin g s , b eatin g , to rtu re s ,
e tc ., and no examination of the record in such parent cases need be made
for th is purpose. In such t r i a l s of ad d itio n al p a rtic ip a n ts in tho

/mass a tro c ity ,

e /CN.U/W.19 .
Page 30^

mass a tro c ity , the court w ill presume, subject to being reb u tted 'b y
appropriate evidence, th a t thoste, shown by. competent evidence to have
p a rtic ip a te d in the mass a tro c ity knew of the crim inal nature
th e re o f,"*
A fu rth e r relev an t provision is made by Regulation l6 (e) o f
the China Theatre Regulations:**
"(e) The findings and Judgment of a commission in any t r i a l or
a u n it, group or organization w ith resp ect to the crim inal
c h arac te r, purpose or a c ti v itie s th ereo f s h a ll be given f u l l
f a ith and c re d it in any subsequent t r i a l by th a t or any other
commission of an in d iv id u al person charged w ith crim inal
re s p o n s ib ility through membership in th a t u n it, group or
organization. Upon proof o f membership in such u n it, group or
organization convicted by a commission, the burden of proof
s h a ll s h if t to the accused to e sta b lis h any m itig atin g circumstances
re la tin g to h is membership or p a rtic ip a tio n th e re in ,"

* I t a l i c s in se rte d .

** See page I 58.

/P A R T I I
 E/CN.4/W.19
Page 305

PART II

INFORMATION ON HUMAN RIGHTS ARISING OUT OF

THE RELATIONSHIP BETWEEN THE STATS AND

PERSONS UNDER ITS JURISDICTION

'iN T K U ii . CXI ON
E /c n .V w .i9
P a g e 306

INTRODUCTION

Encroachments by tho le g is la tu re or executive o f a S tate upon the

fundamental rig h ts and freedoms of i t s ovn subjects have ra re ly figured in var
crimes t r i a l s , in the s t r i c t sense of tho term; so f a r as they concern
crim inal courts a t a l l they have u su ally formed the subject of t r i a l s of
persons accused of offences ag ain st th o ir co -n atio n als.
Even in the preparatory stages of the work i t became apparent th a t
the Report would not f u lly accomplish i t s purpose i f i t were based solely
on war crimos t r i a l s and lim ited to a study of human rig h ts p ro tected by
the Laws and customs of war. I t has th erefo re seemed necessary th a t other
t r i a l s , le ss c lo se ly connected with tho work o f th is Commission, should
a lso bo in v e stig ate d .
A study of tho le g is la tiv e measures by which duly e sta b lish e d guarantees
o f c iv ic and in d iv id u al rig h ts have been destroyed, and of the a c ts by
which a compliant ju d ic ia ry and executive implemented - and freq u en tly
exceeded - those measures, would n e c e ssa rily extend to the t r i a l s of
q u islin g s and t r a i t o r s and also of former enemy n a tio n a ls whose offences
c o n stitu te d v io la tio n s of the human rig h ts o f th e ir fe llo w -c itiz e n s.
The extont and v a rie ty of the m a te ria l av ailab le in the t r i a l s of
Germans fo r offences ag ain st oth er GermonE, or S ta te le ss persons, suggests
th a t the examination o f those t r i a l s should be given a foremost p lace,
a l l the noro so because the tra n s c rip ts of th e ir proceedings are more
re a d ily accossiblo than those o f the o th er t r i a l s re fe rre d to above -
a te c h n ic a l, but none tho le s3 , on appreciable advantage.
Accordingly, though the value of a comparative study of the t r i a l s
of q u islin g s and t r a ito r s conducted by the courts of a llie d countries or
ex-enemy S ta te s, other than Gsrmeuy, is fu lly recognized, the following
chapter has been confined to the t r i a l s o f Germans fo r offonces committed
a g ain st o th er Gormans and S ta te le ss per-ons.
This r e s tr ic tio n i s r o t the only o.*e which had to ho accepted.
The tin e av ailab le has only allowed of the examination of one - a lb e it the
most Important - o f tho questions a ris in g from, a study o f the sources
surveyed, namely the oxtent to which v io la tio n s o f the human rig h ts and
fundamental freedoms in question are covered by the J u ris d ic tio n of the
In te rn a tio n a l M ilita ry T ribunal, the M ilita ry and the M ilita ry Government
Courts, and the German Courts th a t have functioned since the occupation
o f Germany.
To c l e a r th o g ro u n d i t h a s f i r s t b een n e c e ss a ry to c o n s i d e r th e n a tu r e
o f th o c o u r ts an d o f th e la w w h ic h t h e y a p p l y a n d t o d t a t l n g u l s h b e tw e e n

th o I n t e r n a t i o n a l M i l i t a r y T r i b u n a l w h ic h a p p l i e s in te r n a tio n a l la v a n d th e

/Occupation
 E/CN.4/W.19
P age 307

Occupation Courts and German Courts vhose J u ris d ic tio n is based on

municipal la v .
The a n aly sis, given in the following chapter o f the f i r s t Nrnberg
T rial, - so f a r as i t d e a lt w ith offences committed by Germans or
S tateless persons - shows, in the f i r s t place, to what ex ten t v io la tio n s
of human rig h ts have been brought w ithin the notion of crimes ag ain st
humanity. I t makes i t c le a r th a t even a wider in te rp re ta io n of
that notion than was given in the f i r s t Nrnberg Indictment would only
p artly cover the v io la tio n s o f c iv ic and in d iv id u al rig h ts committed under
the Nazi Regime. Without attem pting any p recise d e fin itio n , i t can
be said th a t in the Nrnberg t r i a l , and also in the t r i a l s before the
above-mentioned municipal co u rts, i t was mainly v io la tio n s of the rig h ts
to lif e .a n d personal lib e r ty , and to a le s s e r extent v io la tio n s of
property rig h ts th a t were tre a te d as crimes ag ain st humanity. These
violations were d ire c ted against p o litic a l, r a c ia l and re lig io u s
m inorities. On the other hand, - to mention the most important -
violations of p o litic a l rig h ts guaranteed by the Weimar C onstitution, as
by any other democratic c o n stitu tio n , which a ffe cted a l l c itiz e n s without
exception, wore considered outside the d e fin itio n of crimes ag ain st
humanity.
I t w ill be shown in the following p a rt of the Report th a t the notion
of crimes a g ain st peace (in p a rtic u la r, conspiracy to commit such crimes)
as conceived by the Nrnberg Prosecution, covers a f a r wider f ie ld and
comprises v io la tio n s o f c iv ic and in d iv id u al rig h ts which do not c o n stitu te
crimes ag ain st humanity.
However, the r e s tr ic tiv e in te rp re ta tio n given by the Tribunal to
the provisions of the C harter r e la tin g to the common plan or conspiracy
reduced tho le g a l b a sis fo r the punishment o f v io la tio n s of human rig h ts
of German c itiz e n s and S ta te le ss persons ex clu siv ely to such v io la tio n s
as could bo c la s s ifie d as crimes a g ain st humanity.
The opinion o xpre^^d in some q u arters th a t every misuse o f
national sovereignty, denying the rig h ts of in d iv id u als, was a m atter
of in te rn a tio n a l concern and punishable under in te rn a tio n a l law, had
already boon re je c te d by the authors of the Chartor of the In te rn a tio n a l
Military T ribunal. I t is not the task o f th is Report to determine whether
the J u ris d ic tio n conferred on the In te rn a tio n a l M ilita ry Tribunal by the
Agreement o f 8 August 19^5 and the Charter covers a l l a c ts o f the so -called
major war crim inals fo r which a crim inal re s p o n s ib ility e x is ts under
international law. The f a c t remains th a t only crimes ag ain st humanity
vhich were committed in connection with crimes a g ain st peace, or war crimes,
are covered by th is J u ris d ic tio n . The following Chapter shows which were the
/v io la tio n s
E/OT.tyV.19
Pago 30 S

v io la tio n s o f c iv il and in d iv id u al rig h ts taken in to account by the

T ribunal. F in a lly , i t contains a survey of the municipal courts
e E ta b lished in Germany, ex ercisin g J u risd ic tio n over offences sim ila r
tc those d e a lt w ith by the In te rn a tio n a l M ilita ry Tribunal, and of the
law applied by these c o u rts .
I t has, however, been f e l t th a t an examination o f the t r i a l s held
by these courts could not be u sefu lly undertaken a t th is tim e, and had
b e tte r be postponed to a l a t e r period. For the most im portant o f the
t r i a l s known as "Subsequent Proceedings" a t Nrnberg are s t i l l proceeding,
and a rep resen tativ e se le c tio n of tra n s c rip ts of the many t r i a l s
held before M ilita ry Government Courts and German Courts, w ill only be
av ailab le Borne months hence.
To mention only some of the points which would need consideration
in the course o f such on examination, i t i s observed th a t in th ree of
the Indictm ents which have so f a r been submitted to the M ilita ry
Tribunals a t Nrnberg and on which judgment has not y et been pronounced,
the notion o f crimes again st peace, (in p a rtic u la r conspiracy to commit
such crimes) has been in te rp re te d in the same way as in the f i r s t
Nrnberg Indictm ent, - i . e . as comprising v io la tio n s of civ ic and
in d iv id u al rig h ts during the e a r lie r stages of the Nazi regime in
Germany - although the In te rn a tio n a l M ilita ry Tribunal re je c te d th a t
in te rp re ta tio n .
I t w ill be o f in te r e s t to see how f a r the M ilita ry Tribunals follow
the, a u th o rity o f the In te rn a tio n a l M ilita ry Tribunal in regard to such
charges, bearing in mind th a t they do not apply the Charter o f the
In te rn a tio n a l M ilita ry Tribunal, but Control Council Law No. 10 which,
however, defines "crimes ag ain st peace" in s u b sta n tia lly the same way as
the C harter.
G reat importance w ill also a tta c h to t r i a l s dealing with crimes
ag ain st humanity. In regard to these crimes the law applied by the
above-mentioned courts O f f e r s from the Charter of the In te rn a tio n a l
M ilita ry T ribunal. Crimes ag ain st humanity as defined by Control Council
Law No. 10 - the most important of the enactments applied by these courts -
are not n e c e ssa rily connected w ith crimes ag ain st peace or w ith war crimes;
in the words of General Telford Taylor they were given an "independent
s ta tu s " .*
An examination of the t r i a l s in which Control Council Law No. 10
and sim ilar laws have been applied should a s s is t in c la rify in g th scope
of tne conception o f crimes ag ain st humanity and in d iff e r e n tia tin g

* "lomectic Law and the Preservation o f Peace". Address d eliv ered

by B rigadier General Telford Taylor a t the V9 Congres
In te rn a tio n a l do D roit Penal a t Geneva on 28 Ju ly 19 7 .
/between those
 E/CN.4/W.19
Page 309

between those and common crimes, the p ra c tic a l importance of th is

d is tin c tio n beins th a t the provisions of Control Council Law No. 10
wMch exclude the b e n e fits of any s ta tu te of lim ita tio n , pardon or
amnesty granted under the Nazi Regime, apply only to the former
category of crimes.
Seme hundred charges of g reat v a rie ty , many of them e s s e n tia lly
d iffe re n t from those submitted to the In te rn a tio n a l M ilita ry Tribunal,
have been examined by the municipal co u rts. The a tr o c itie s and
persecutions d e a lt w ith a t the t r i a l of the major war crim inals were,
as a r u le , the e f f e c t of laws or orders which could be traced back to the
highest a u th o ritie s of the Nazi h ierarch y . A tro c itie s adjudicated upon
in the other courts have been, in many cases, o f a d iffe re n t type, the
role played by the Nazi executive being passive and co n sistin g in the
withdrawal of public p ro tectio n from c e rta in groups of c itiz e n s . I t
was the opportunity thus offered which rendered possible many offences
committed so lely fo r the p riv ate ends of the p e rp e tra to rs. Even the
m aterial a t present available shows th a t considerable doubt e x ists
as to whether cases of th is s o rt which - so fa r as concerns the
crim inals motives cannot be d istin g u ish ed from common crime - ought
to be tre a te d as crimes ag ain st humanity.
The above does not purport to be an exhaustive enumeration of the
p o s s ib ilitie s which might be o ffered by an examination of the t i i ^ s
before the municipal courts esta b lish e d in Germany. Among o th er
questions which might present themselves during such an examination
would be, fo r in stan ce, the ex ten t to which re tro a c tiv e laws had to be
re lie d on in the prosecution of crimes a g ain st humanity.
An examination o f these and o th er re la te d problems could, i t is
thought, be u se fu lly undertaken in conjunction with the study of the
Ju risd ic tio n over v io la tio n s of rig h ts of individuals fo r which th e ir
national Government is responsible.
I t must, however, be borne in mind th a t h ith e rto the Nrnberg
Tribunal alone has d e a lt with the question which o* these v io la tio n s
are offences under in te rn a tio n a l law and subject to the ju ris d ic tio n of
an in te rn a tio n a l co u rt, and th a t the trib u n a ls re fe rre d to in the
preceding paragraphs are municipal courts applying municipal la v s.
A comparison of the p ra c tice of these courts with th a t of courts
exercising a sim ila r ju ris d ic tio n and e stab lish ed in a llie d and
ex-enemy co u n tries, would, however, rev eal the p rin c ip le s which are
common to a l l these co u n tries.

/CHAPTER I
E/CN.VW.19
Page 31

CHAPTER X

JURISDICTION OVER VIOLATIONS OF ROMAN HIMES

CP.SSMK C1TT3ETO ATO GJVUv.fI.S3 PERSONS
COMMITTED WITHIN TEE TERRITORY OF
THE GERMAN REICH

A, The T a te ra a tle a ! ._'-***

tn e T r ia l c f Gens?/! Ma Jor Wa r !;rX .rn.ls
V io la tio n s o f human r ig h t s of German C itizen * ar<l Lr,a te le s s persons,
f o r which th e N a tio n a l S o c ia l i o t I on;.ire i s co n sid ered re c p o n v ib le,
foim ed t];Q s u b je c t m a tte r o f th e t r i a l b e fo re th e In to rn a tJ c n a l M ilita ry
T rib u n al a t Nrnberg; th ey a ls o form th e s u b je c t o f a number o f t r i a l s
which arc being h e ld b efo re the m unicipal c o u rts (m ilita r y as w e ll as
c i v i l ) e s ta b lis h e d in Germany and A u s tria by th e fo u r occupying Powers;
and they a re being d e a lt w ith by th e o rd in a ry German c o u rts .
The I n te r n a tio n a l M ilita ry T rib u n a l, c re a te d by th e Agreement o f
8 August 19^5, d i f f e r s in i t s c h a ra c te r, i n i t s J u r is d ic tio n and in the
law which i t a p p lie d from th e o th e r c o u rts which have been concerned
w ith those v io la tio n s o f human r ig h ts th a t a re o f i n t e r e s t in t h i s
co n n ectio n . For t h i s re a so n , and in view o f i t s o u tsta n d in g im portance,
i t i s proposed, f i r s t o f a l l , to devote a se p a ra te c h a p te r to th e Nrnberg
t r i a l in s o f a r a s i t was concerned w ith v io la tio n s o f human r i g h t s c f
German c itiz e n s and S ta te le s s p e rso n s.
1. The I n te r n a tio n a l C h aracter o f th e T rib u n al
The Nrnberg T rib u n a l i s an I n te r n a tio n a l T rib u n a l. I t came in to
e x iste n c e by v ir tu e o f an Agreement between th e Governments o f th e
U n ited Kingdom, th e U nited S ta te s o f America, th e Union o f S o v iet
S o c ia lis t R epublics and th e P ro v isio n a l Government o f th e French R epublic.
I t o rig in a te d , in f a c t , l ik e any o th e r in te r n a tio n a l c o u rt r r tr ib u n a l,
i n an in te r n a tio n a l t r e a t y .
The g r e a t m a jo rity o f w r ite r s who d e a l w ith th e Nrnberg T r i a l have
n ev er q u estio n ed th e in te r n a tio n a l c h a ra c te r o f th e T rib u n a l.* I t h as,
however, been suggested** t h a t th e Nrnberg T rib u n al can o n ly in a
form al sense bo co n sid ered as an in te r n a tio n a l tr ib u n a l and t h a t , in
su b stan ce, i t i s a m unicipal tr ib u n a l o f e x tra o rd in a ry J u r is d ic t io n , which

* C f. Lord W right - War Crimes under I n te r n a tio n a l Law: The Law Q uarterly
Review, V ol. 82 (January 19^6), P ^0 e t seq; G.A. F in ch : The Nrnberg
T r ia l and I n te r n a tio n a l Lav - The American Jo u rn a l o f In te r n a tio n a l Law
V ol. Ill (January 19*17)> P- 20 e t seq; Quincy W right: The Law o f the
Nrnberg T r ia l - The American Jo u rn a l o f I n te r n a tio n a l Law, V ol. i l ,
(January 197) j P 38 e t seq; H. K elsen: "W ill th e Nrnberg T r ia l
c o n s titu te a P recedent?" - I n te r n a tio n a l Law Q u a rte rly , V ol. I , No. 2,
(lo li7 ), p . 153, e t seq .
** G. Schw arzenberger: "The Judgment o f Nrnberg" - Tulane Law Review,
V ol. XXI (March 19*i7)> P* 329* e t se q . .
/th e fo u r Powers,
 E/C!.tyW.19
Page 311

the four Powers, p a rtie s to the Agreement o f 8 August 19*+5, share in

common. I t has been argued th a t by d e b ellatio the A llie s became the
jo in t sovereigns of Germany and tlia t " l i t t l e importance need be
attached to the circumstance th a t the Jo in t sovereigns exercised th e ir
J u ris d ic tio n as the fountain of law and ju s tic e in Germany by an
in te rn a tio n a l tre a ty ; fo r th is mode of co-ordinating th e ir sovereign
w ills is not so much determined by the o b ject o f th e ir Jo in t
d e lib e ratio n s as by the character of the Jo in t sovereigns as four
d is tin c t subjects o f in te rn a tio n a l law".*
The municipal cliaracter of the T ribunal, the argument continues,
could hardly be questioned, had i t been e sta b lish e d by one S tate a f te r
th is S tate alone had conquered Germany in stead o f four v ic to rio u s Powers
which combined th e ir e ffo rts towards the same end.**
The view th a t i t was the in ten t!> n of the p a rtie s in substance to
e sta b lis h Jo in t m ilita ry trib u n a ls under municipal law ra th e r than a tru ly
in te rn a tio n a l trib u n a l has been in fe rre d c h ie fly from a statem ent of
Mr. J u stic e Jackson,*** who declared in the course o f the Nrnberg t r i a l :
"One of the reasons th is (Tribunal) was c o n stitu te d
as a m ilita ry trib u n a l instead of an ordinary court of law
was to avoid the precedent-creating e ffe c t of what is done
here on our own law and the precedent co n tro l which would
e x is t i f th is were an ordinary Ju d ic ia l body."****
I t has been pointed out th a t " if the Tribunal had been conceived
by the Powers as an in te rn a tio n a l trib u n a l th ere was no need to guard
e ith e r against precedent control o r ag ain st the precedent-creating
e ffe c t of the judgment on the municipal law of the four Powers. I f ,
however, the Tribunal was a jo in t trib u n a l under municipal law and had
not been given the s ta tu s of an extrao rd in ary trib u n a l by being la b e lle d
a m ilita ry trib u n a l, i t could a t le a s t have been argued th a t th e
Judgment of the Tribunal had such effects."*****
The present re p o rt seeks to show no more than th a t, in the opinion
of tho g re a t m ajority of the leading w rite rs on the su b ject, the Nrnberg
Tribunal is to be considered as an in te rn a tio n a l trib u n a l, bu t th a t th is

* G. Schwarzeriberger: o p .c it, p. 33^*

** G. Schwarzenberger: o p .c it, p.33^
*** G. Schwarzenberger: o p .c it, p.33^
**** Quoted by G. Schwarzenberger, p.333
***** G. Schwarzenberger, o p .c it, p.33^.
/opinion
 E/CN.4/W.19
Page 312

opinion has been contested. Without assuming to decide a question which,

to some e x te n t, i s c o n tro v e rsial, i t is pointed out t h a t [ i t was not the
Control Council fo r Germany h u t the Governments o f the United S ta te s of
America, Great B rita in , Prance and the Soviet Union which e sta b lish e d
the Tribunal* and appointed i t s members.**
That i t was not the in te n tio n o f the p a rtie s to the Agreement of
8 August 19^5 to create "Jo in t m ilita ry trib u n a ls under municipal law"
seems to be shown by the Preamble of the Agreement wherein the four
sig n a to rie s declared th a t they were actin g (not as the sovereigns over
the former German te r r it o r y but) "in the in te r e s t o f a l l the United
N ations."***
In ad d itio n , i t has been s tre sse d th a t the Agreement makes no
d ifferen ce between Germany whose n a tio n a l government had been abolished
and replaced by a condominium government o f the four Occupant Powers,
and the o th er European Axis S ta te s over which the sig n ato rie s had not
assumed sovereign le g is la tiv e power. \ The Agreement was concluded -
not fo r the prosecution of German war crim inals only, but "for the
prosecution o f European Axis war crim inals."**** - I t was an
in te rn a tio n a l tre a ty which expressly denoted the trib u n a l created by
i t as an "in te rn a tio n al" trib u n a l and which was concluded no t only by
the four Occupying Powers, bu t a lso by the many o th er United Nations vhich
adhered to i t , a f te r being in v ite d in A rtic le 5 of the Agreement tu do so.***
2. The J u ris d ic tio n o f the Tribunal
The Judgment of the In te rn a tio n a l M ilita ry Tribunal derives the
T rib u n als J u ris d ic tio n from two d iffe re n t sources. I t s ta te s : "the
making of the C harter was the exercise of the sovereign le g is la tiv e power
by the countries to which the German Belch uncon d itio n ally surrendered
and the undoubted rig h t of these co u n tries to le g is la te fo r the occupied
t e r r i t o r i e s has been recognized by the c iv iliz e d world . . . "
"The signatory Powers created th is T ribunal, defined the law i t was
to adm inister and made the reg u latio n s fo r the proper conduct o f the t r i a l .
In doing so they have done to g eth er what anyone o f them might have done
singly; fo r i t 3 not to be doubted th a t any n a tio n has the rig h t thus to

* A rt. I of the Agreement of 8 August 19^5 ( " . . . a f t e r co n su ltatio n

with the Control Council fo r Germany...")
** A rtic le 2 of the C harter.
*** H. Kelsen, o p .c i t , p . l 68.
**** E. Kelsen, o p .c i t . p . l 68.
MU UU
H. Kelsen, op.c i t , p . l 68. / s e t up
 E/CN.4/W.9
Page 313

Bet up sp ec ia l courts to adm inister law. With regard to the c o n stitu tio n
of the co u rt, a l l th a t the defendants are e n title d to ask is to receive a
f a i r t r i a l on the fa c ts and law"*
Thus the ju ris d ic tio n of the Tribunal is based, in the f i r s t in stan ce,
on the jo in t sovereignty o f the four A llie d lowers over Germany. By the
B erlin D eclaration of 5 June, 19^5, the four A llied Powers, then in complete
co n tro l o f Germany, assumed "supreme au th o rity with resp ect to Germany
including a l l the powers possessed by the German Government, the High Command,
and any S ta te , municipal o r lo c a l government, o r a u th o rity " . The purpose of
th is measure was "to make provision fo r the cessatio n o f any fu rth e r
h o s t i l i t i e s on the p a rt of the Gorman armed forces fo r the maintenance of
order in Germany and fo r the adm inistration of the c o u n try ...." * *
I t i s h eld th a t a S tate may acquire sovereignty over a t e r r it o r y by
d ecla ra tio n o f annexation a fto r subjrga-Jon of the te r r it o r y , i f th a t
d e claratio n i s generally recognised by the o th er S tates of the world; and
i t i s a f a c t th a t the B erlin D eclaration ha been recognised no t only by
the United Nations but also by n e u tra l Statos.*** "This D eclaration, however,
d iffe re d from the u sual d ecla ra tio n o f annexation in th a t i t was by sev eral
S ta te s, i t s purposes were s ta te d , and i t was declared not to e f f e c t the
annexation of Germany."#***
I t has been argued th a t the g re a te r rig h t comprises the le s s e r one, and
th a t therefore a State or S tates which are in a p o sitio n to annex a te r r it o r y
appear to be e n title d to declare the le ss o r p o licy of exercising sovereignty
tem porarily and fo r sp e c ific purposes. The B erlin D eclaration has been
constructed in th is way. The exercise of powers of le g is la tio n , adjudication
and adm inistration in Germany by the four A llied Powers is thus perm issible
under in te rn a tio n a l law and lim ited only by the ru le s of in te rn a tio n a l law
applicable to sovereign S tates in te r r ito r y they have subjugated. From th is
i t follows th a t the p a rtie s to the Agreement of 8 August 19^5 > bad the power
to enact the Charter annexed to the Agreement as a le g is la tiv e a c t fo r
Germany, provided they did not tran sg ress fundamental p rin c ip le s of ju s tic e
which even a conqueror ought to observe towards the in h ab itan ts of annexed
t e r r i t o r y . *****

* Judgment, p .38
** Preamble of the D eclaration o f 5 June 19^5, quoted by Quincy Wright,
o p .c it, P.50.
*** Quincy Wright o p .c it. p.50j c f . A. Finch, o p .c it, p.22;
G. Schwarzehbergor, o p .c it, p.339, e tc .
**** Quincy Wright, o p .c it, p.50.
***** Quincy Wright, o p .c it, p p .50-51*
/ i n the passage
F;/r.rr.Vw.19
Paie 31^

In the ]>assago o f the Judgment quoted above,* reference i s fu rth e r made

to tho in te rn a tio n a l b a sis of the T rib u n al's J u ris d ic tio n . I t has been
pointed out th a t the words of the Judgment which are relev an t in th is
connection: " . . . f o r i t i s n o t to be doubted th a t any n atio n has the rig h t
thus to s e t up sp e c ia l courts to adm inister law"** i s su b ject to c e rta in
q u a lific a tio n s . For in te rn a tio n a l law lim its the crim inal J u ris d ic tio n of a
S ta te ; th ere is no doubt, however, th a t every S ta te has the a u th o rity to set
up sp e c ia l courts to t r y any person w ith in i t s custody who commits war crimes -
a t le a s t i f Buch offences th re a ten i t s secu rity .* * * I t is believed th a t this
J u ris d ic tio n is broad enough to cover the J u ris d ic tio n over v io la tio n s of
human rig h ts of German c itiz e n s and S ta te le s s persons which the Tribunal
assumed.****
A th ir d source o f the J u ris d ic tio n o f the In te rn a tio n a l M ilita ry Tribunal
i s suggested by the Preamble o f th e Agreement o f 0 .'/sgugb 15^5* I t says
th a t the "sig n ato ries" when concluding the Agreement, were "acting in the
in te r e s ts of a l l the U nited N ations", and A rtic le 5 of the Agreement declares
th a t "any Government of the United Nations may adhere to th is Agreement''. It
i s held by Quincy Wright ***** th a t a lso A rtic le 5 o f the Moscow Declaration
and A rtic le 2 (6) of the C harter of the United Nations support to some extent
tho idea th a t the 'our Powers, actin g in the in te r e s t o f the United Nations,
had the rig h t to le g is la te fo r th e e n tire community o f n a tio n s. He points
out th a t the C harter o f the. United Nations assumed th a t the Organization could
declare p rin c ip le s binding on non-members. I t i s , in h is view, therefore
possible th a t the United Nations which created the Agreement of 8 August 19^5
intended to a c t fo r the community of nations as a whole, thus making universal
in te rn a tio n a l law.
The Judgment of the In te rn a tio n a l M ilita ry Tribunal does n o t make any
reference to th is conceivable source o f i t s J u ris d ic tio n . Quincy Wright, too,
1 b of the opinion th a t i t i s not necessary to employ tho source, since the
rig h t of the p a rtie s to the Agreement to give tho Tribunal th e Ju risd ictio n
which i t a sse rte d is amply supported by the p o sitio n o f these powers as the
Government of Germany o r by tho sovereign rig h t of each of them to exercise
u n iv e rsal J u ris d ic tio n over the offences s ta te d .

* Judgment, p . 38. (c f. p . 312 note 2, above).

** Idem.
*** Quincy Wright, o p .c it, p.k9.
**** As th is p a rt o f the Report deals ex clu siv ely w ith the Ju risd ictio n
over Vi-ili.tie n s o f human rig h ts of German c itiz e n s and S ta te le ss
persons no attem pt has been made here to examine the wider question
of the J u ris d ic tio n conferred by the C harter in it f u l l ex ten t.
(C f. however, P art I , Chapter I , B. o f the Report. As to the
U niversality of Jurisdiction over War Crimes, C f. H. Lauterpacht,
The Law of Nations and the Punishment c f War Crimes. The B ritis h
Year Book o f In te rn a tio n a l Law, 19^4, (V cl.21), p .63 e t . seq.
Quincy Wright, op. c i t , p.^5 and the a u th o ritie s quoted th e re .
***** O p .cit, p . 51 /3 . The Law
 E/CN.VW.19
Rage 3 5

3. Tlc law e n iJ le l by the m-ibunal

A rtic le 6 of the Charter annexed to the Agreement of 8 August 19I4.5
enumerates the offences f a llin g v ith in the T rib u n al's J u ris d ic tio n .
The provisions o f A rtic le 6 are in the words of the Judgment, "binding
upon the Tribunal as the law to bo applied to the caso'1.*
As early as January I 9U6, lo rd Wright expressed the view** th a t i t
ras not the Agreement which gave the acts defined in A rtic le 6 of
the Charter tho charaoter of offences, but th a t these a c ts were placed
by the four Powers undor the ju ris d ic tio n o f the Tribunal because they
were considered as offences already under ex istin g law. Ho continued:
"On any other assumption the court would not be a court of law bu t a
m anifestation of power," The Judgment-expresses th e same vie*?:
"The C harter is not an a rb itra ry exercise of power on the p a rt of the
v icto rio u s n atio n s, but in tho view of the T ribunal, as w ill be shown,
i t i s an expression of in te rn a tio n a l law e x istin g a t th e time of i t s
creatio n ; and to th a t extent i s i t s e l f a co n trib u tio n to in te rn a tio n a l
law."*** '-i
I t is not necessary to deal here w ith thope p arts of the Judgment
which s e t out th a t the provisions of th e Charter concarnix.g crimes
against peace are merely dec-1-ra to ry of in te rn a tio n a l law as i t
e x isted before the oxecution of the Agreement of 8 August 19^5; fo r
although the v io la tio n s of human rig h ts which are alcne of in te r e s t
in th i3 p a rt of the Paport, - i . o . , v io la tio n s of human rig h ts o f
Gorman c itiz e n s and S ta te lo ss persons - were re fe rre d to in Count One
of the Indictm ent, the r e s tr ic tiv e in te rp re ta tio n given by the
Judgment to the provisions of tho Charter re la tin g to the "common
plan or conspiracy"**** increases the importance of those provisions
which concern crimes against humanity as a le g a l b asis fo r the punishment
of v io la tio n s of human rig h ts of German c itiz e n s and S ta te le ss porsons.
A rtic le 6 (c) of tho Charter*-**** provides th a t crimes against
humanity "committed against any c iv ilia n population before or during
tho war" - "vrhothor or not in v io la tio n of th e domestic law of the
country where perpetrated" f a l l w ithin the J u risd ic tio n of the
In te rn a tio n a l M ilitary Tribunal i f tl:ey are connected "with any crime
w ithin the J u ris d ic tio n of the Tribunal" (th a t i s crimes against
peace, or war crim es).

* Judgment, page 3.
** "Vnr Crimes undor In te rn a tio n a l law, The law Q uarterly Review,
Volume 62 (January, 1 9 ^ ) . page 4 l.
*** Judgment, page 38.
**** Cf. below, pp, 316 o t aoQ.
***** As amended by tho Protocol of 6 October 19^5> c f. Part I , Chapter I ,
A of the Report,
 I t is obvious th a t these provisions were c h ie fly meant to extend
the J u risd ic tio n of the Tribunal to a c ts of inhumanity which were
committed by the Nazi regime ag ain st Germans and S ta te le ss persons.
The a u th o ritie s d iff e r as to whether a cts mentioned in A rtic le 6 (c)
o f the Charter c o n stitu te crimes under in te rn a tio n a l law when undertaken
in a S ta te 's own te r r it o r y ag ain st i t s own n a tio n a ls, Quincy Wright
p o ints out* th a t acts of th i3 kind have repeatedly led to a "humanitarian
in tervention" by other S ta te s. He fu rth e r re fe rs to the numerous
Conventions which place S ta te s under an o b lig atio n to resp ect c e rta in
fundamental rig h ts of m in o ritie s, backward peoples, workers and other
persons w ithin th e ir Ju ris d ic tio n . He mentions f in a lly th a t the a cts
which c o n stitu te crimes ag ain st humanity have repeatedly been the subject
o f e x tra d itio n tr e a tie s and th a t the S tates have thus recognized the duty
of co-operating in bringing to Ju stice persons g u ilty of such crimes.
In opposition to these and oth er weighty arguments, i t has been
contended th a t there is no ru le of in te rn a tio n a l law, customary or
conventional, e sta b lish in g crim inal re s p o n s ib ility fo r every misuse of
n a tio n a l sovereignty. In p a rtic u la r, those of the a c ts mentioned in
A rtic le 6 (c) of the Charter which were committed in peace time are,
according to th is view, covered by the conception of ex clu siv ely domestic
Ju risd ic tio n .* *
The In te rn a tio n a l M ilitary Tribunal examined with g re a t care whether
the crimes a g ain st humanity charged ag ain st the defendants were committed
in connection w ith or in furtherance of a p o licy of planning and waging
aggressive war or the p erp e tra tio n of war crimes as defined in A rtic le 6 (b)
o f the C harter, and the Tribunal declined "to make a general d eclaratio n
th a t the acts before 1939 were crimes ag ain st humanity w ithin the meaning
of the Charter,"*** As has been said above**** every S tate is e n title d
under in te rn a tio n a l law, to s e t up sp ecial courts to t r y any person
w ithin i t s custody who commits war crimes - a t le a s t i f such offences
th re a ten i t s secu rity ; crimes ag ain st humanity committed in connection
w ith crimes against peace, or war crimes in the te ch n ica l

* O p .c it., page 1*3 .

** G.A. Finch, o p .c it. page 23. G. Schvarzenbc-rger, o p .c it. pages 353
and 35^
*** Judgment, page 65.
**** Pago 313 above.
/sense of the
 E/CN.tyV.l^
ECe 31?

sonse of the word, appear to f a l l w ithin th is category o f offences.*

I t can bo said , th e re fo re , th a t a t the time of the c re atio n of
vLe C harter, an in te rn a tio n a l b a sis oxieted fo r the J u ris d ic tio n over
crimo3 a,y i-ist humanity connected w ith crimes against peace or war
crimes,** end th a t the Tribunal confined i t s e l f to the J u ris d ic tio n over
th is typo o f crimes against humanity.
1, V iolations of Human Rights of German C itizens and S ta te le ss Porspns
re fe rre d t o In Count One of ' he Indictment. (The Common Plan or
Conspiracy.)
V iolations of human rightB of Gorman c itiz e n s and S ta te le ss
persons are mentioned in Count I of the Indictment*** in connection
with the measures taken by the Nazis in order f i r s t to seize
to ta lita r ia n co n tro l o* Germany and then to consolidate th e ir p o sitio n
of power.
Under the heading "The acquiring of -o ta lita r ia n co n tro l of
Germany: P o l i t i c a l ', the following i s sta te d :
"In order to accomplish th e ir aime and purposes, th e Nazi
conspirators prepared to seize co n tro l over Germany to assure th a t
no e ffe c tiv e re sista n c e again st them could a ris e vith.ni Gezmany
its e lf ."
In t h l 3 connection, i t i s said th a t a few weeks a f te r H itle r 's
appointment as Reich Chancellor the clauses of the Weimar C onstitution
guaranteeing personal lib e r ty , freedom of speech, o f the Press, of
asso ciatio n and assembly Vdre suspended, th a t the Nazis sh o rtly
aftorwnrds secured the passage by the Reichstag of a "law fo r the
P rotection of the People and the Reich" giving H itle r and the members
of his cabinet plenary powers of le g is la tio n and th a t again a short
time la te r a l l p o litic a l p a rtie s oxeopt the Nazi Party were p ro h ib ited .

* Cf. however; "Note on the Nrnberg T ria ls " , signed P.D., The law
Q uarterly Review, Volume 62, July 19^6, pages 230 and 231, where i t is
said th a t tho provisions of A rtic le 6 \c) of the Charter which consider
crimes against humanity committed in connection with crimes against
peace or war orimos as crimes under in te rn a tio n a l law are "the only-
element of novolty in the law" (th a t 1 b in the C harter). Cf. a lso ,
G. Schwerzenbarger, op.c i t , page 3*1 et.eeq,.
** c f. page note 2 above
*** Indictm ent, Count I , Section IV (D) and (E), Proceedings,

/The Indictment
 E/CM.Vf.19
Page 31

Tho Indictment goos on to describe how the Nazis s e t about the

"consolidation of th o ir p o sitio n of power w ithin Germany, the extermination
of p o tin tia l in te rn a l re s ista n c e and tha placing of the German n atio n on a
m ilita i'/ fo o t g " . This policy included th e reduction of the noichstag to
a body of Nazi nominees; th e curtailm ent of the freedom of popular electio n s,
tho transform ation of the s ta te s , provinces and m u n ic ip a litie s, which had
formerly exercised semi-autonomous powers, in to hardly more than administrative
organs of the c e n tra l government; the purge of c iv il serv an ts; end the
r e s tr ic tio n of the independence of the Ju d iciary , which was rendered
subservient to Nazi onds". "In order to make th e ir ru le soouro from attack
and to i n s t i l fe a r in the h earts of tho Germon people", tho Nazis established
"a system of te r r o r against opponents and supposed or suspected opponents of
the regime". They imprisoned such persons w ithout J u d ic ia l process, holding
them in "protective custody" and concentration camps, and subjected them to
persecution, degradation, despoilment, enslavement, to rtu re and murder. In
ad d itio n to the suppression of d is tin c tiv e ly p o litic a l opposition, c e rta in
o th er movements and groups, which the Nazis "regprdod as obstacles to th e ir
roto n tio n of t o t a l co n tro l in Germany and to tho aggressive aims of tho
conspiracy abroad" wore suppressed. These were, according to the Indictment,
in p a rtic u la r the free trad e unions, the C h ristian churches, and c e rta in
p a c if is t groups. The free trad e unions were destroyed by co n fiscatin g th e ir
funds and p ro p e rtie s, persecuting th e ir lead ers, p ro h ib itin g th e ir a c tiv itie s ,
and supplanting them by an a f f ili a te d Party organization. With those and
other measures, "any p o te n tia l re sista n c e of the workers was fru s tra te d and
the productive labour capacity of tho Gorman nation was brought under the
e ffe ctiv o control" of the Nazis. To elim inate the C h ristian churches in
Germany a programme of persecution of p r ie s ts , clergy and members of monastic
o rders, who were thought opposed to tho purposes of the Nazis, was pursued,
and church property wa3 con fiscated . " P a rtic u la rly r e le n tle s s and cruel" was
the persecution of p a c if is t groups, including re lig io u s movements dedicated
to pacifism . Among the measures which were to serve the Nazis f o r tho
consolidation of th o ir p o sitio n in Germany, the persecution of the Jews is
also mentioned. Tho Nazis embarked on a policy of r e le n tle s s persecution
of the Jews designed to exterm inate them. The a n n ih ila tio n o f the Jews
became indeed an o f f ic ia l S ta te policy, c a rrie d out both by o f f ic ia l action
and by incitem ent to mob and in d iv id u al violence. The programme of action
against the Jews included disfranchisem ent, stig m atizatio n , d en ial of c iv il
rig h ts , violence, deportatio n , enslavement, enforced labour, starv atio n ,
murder and mass exterm ination. I t was fu rth e r allegod in tho Indictment
th a t "in order to make the German people amenable to th e ir w ill and to
prepare thorn psychologically fo r war", the Nazis reshaped tho educational
/cystem
 e / c n . a/ w. i 9
Page 319

system and p a rtic u la rly the education and tra in in g o f the Gorman youth,
imposed a supervision of a l l c u ltu ra l a c tiv itie s and controllod the
dissemination of infoim ation and tho expression o f opinion w ithin Germany
as well as tho movement of in tc llifo n c e of a l l kinds from and in to Germany.
Undor the heading "The Acquiring o f T o ta lita ria n Control in Gormany:
Economic", the Indictment next describee how the Nazis, a f te r they had
gained p o litic a l power "organized Germany's economy to give e ffe c t to
th e ir p o litic a l aims"; and i t proceeds to show how the Nazis used the
p o litic a l and economic co n tro l of Germany, which they had gained by
innumerable v io la tio n s of indiv id u al and c iv ic rig h ts guaranteed by the
Weimar C o nstitution, fo r the re a liz a tio n of th e ir aggressive plane.
In the submission of the ^aictm ent, th e measures adopted by the
Nazis in furtherance of th e ir in te n tio n s to aeguiro to ta lita r ia n co n tro l
of Germany and then to consolidate th e ir power w ithin th a t country, are
to be considered as "stop3 d e lib e ra te ly taken to c a n y out the common
plan",* I t follows th a t a l l v io la tio n s o f c i v i l and in d iv id u al rig h ts
vkich enable the Nazis to gain and r e ta in power in. Germany, are covered
by A rtic le 6 (a) of the C harter.
I t is now proposed to examine the a ttitu d e o f th e T ribunal towards
the above-mentioned submissions presented by the Prosecution.
The Judgment begins by reviewing the growth of the Nazi Party "to
a position of supremo power from which i t co n tro lled th e destiny of the
whole German people and paved the way fo r th e alleged commission of a l l
the crimes cherged against the defendants."**
I t examines the o rig in and aims of tho Nazi Party and shows th a t the
Party programme, which was proclaimed in February 1920, and remained
unchanged u n til the d isso lu tio n of the NSDAP in I 9A5, foreshadowed the
a tro c itie s against the Jews, the measures fo r la rg e -sca le rearmament,
the seizure of A ustria and Czechoslovakia, and the war.***
Continuing, tho Judgment speaks of the p o litic a l a c tiv itio s of the
Party, and of the leaders of th . .SLAP who, as early as th e ir f i r s t e lec tio n
campaigns, hardly troubled to conceal th e ir In ten tio n of destroying tho
democratic s tru c tu re o f the Weimar Bopublie and replacing i t by a
to ta lita r ia n regime "which would enable them to c a n y out th e ir avowed
policies w ithout opposition."****

* Judgment, page A3.

** J u d g m e n t, p a g e 3 .

*** Judgment, p a g e A.
**** Judgment, page 5.
/The f i r s t steps
 E/CN.VIM9
Page 320

The firct 3tapa towards the re a liz a tio n of th is aim wore taken
w ithin a few weeks of E i t l o r '3 appointment as Belch Chancellor. In
the sojio section* tho Judgment draws a tte n tio n to the Reichstag f i r e ,
which Yras use* by H itle r and h i3 Cabinet' es a p re te x t fo r pr.ssing a
decree suspending the c o n stitu tio n a l guarantees of freedom; and points
out th a t, coon afterw ards on th e basi3 of th is decree, a su b sta n tia l
number of m e te rs of tho parliam entary opposition was taken in to
"protective custody", with the f in a l r e s u lt th a t the Beichstag, intim idated
by these and sim ila r measures, passed th e so -c alle d "Enabling Act" which
gavo the E itlo r Cabinet f u l l le g is la tiv e powers including the power to
deviate from the C o nstitu tio n .
In th e paragraphs which follow the Judgment describes tho measures
which served tho NSIAP fo r t..e consolidation of th e ir p o sitio n of power
w ithin Germany.** In th is connection i t r c a lls th e v io la tio n s of civ ic
and indiv id u al rig h ts which were s e t fo rth in th e Indictm ent.-"* The
Judgment evidently considers these v io la tio n s to be p art of a policy which
aimod a t the elim ination of a l l opposition, the complete co n tro l of
Germany's p o litic a l and economic l i f e , the u n itin g of the people in
support c? tb-.- lazi Government *a p o lic ie s (in p a rtic u la r th e policy of
la rg e -sc a le reaiTmunents) and the organization of the n a tio n !s resources
so as b e st to Eerve tho purposes of war. Yet, in th is p a rt of the
Judgment, i t n lre a iy becomes c le a r th a t the Tribunal does not share the
opinion of the Prosecution, which regarded any p a rtic ip a tio n in these
p o lic ie s and tho re s u ltin g v io la tio n s of c iv ic and in d iv id u al rig h ts as
c o n stitu tin g evidence of a p a rtic ip a tio n in a conspiracy declared criminal
under A rtic le 6 (a) of the C harter,
The h isto ry of the Nazi Party and the steps which i t took f i r s t to
seize and then to r e ta in power in Germany, are reviewed by th e Judgment
merely in order to show "the background of the aggressive war and war
crimes charged in the Indictm ent" . *** When th is has been done, and only
then, the Judgment turns to "the question of .the existence of a common
plan and the question of aggressive war. "**** i t is only a f te r i t has
examined the a c ti v itie s of the Nazi Party in Germany th a t the Tribunal
tu rn s to Counts One and Two of the Indictment and to the fa c ts which appear

* Judgment, page 6.
** Judgment, page 7 e t seq.
*** Section IV (D), (E), c f. page 317 ot seq. above.

**** Judgment, page 3

***** Judgment, page 13.
/re le v a n t in
 E/CN.lf/W.19
Page 321

relev an t In connection v ith them! "The Tribunal nov turns to the

consideration of the crimes ag ain st peace. Count One of the Indictment
charges the defendants w ith conspiring or having a common plan to commit
crimes agair.st peace. Count Two of the Indictment charges the defendants
w ith ccmmi ttin g s p e c ific crimes ag ain st peace . . . . I t w ill ho convenient
to consider the question of the existence of a common plan and the
question of aggressive war tog eth er ..." *
The Judgment goes on to observe th a t in "Mein Kampf", H itle r had
already s ta te d the aims of his fo reig n policy, which were l a t e r to lead
to war. I t next d e als w ith th e all-im p o rtan t meetings of 5 November 1937,
23 May I 939, 22 August 1939 and 23 November 1939, where H itlo r disclosed
M s concrete plan of aggression to his confidants ,**
The Judgment then discusses tho several aggressive a c ts and
aggressive wars undertaken by the Nazis, the invasion of A ustria being
th e f i r s t and the war against the United S ta te s of America th e la st.* * *
In the sectio n dealing w ith "The Law as to the Common Plan or
Conspiracy"**'*"* the Judgment nronounoes in general terms i t s opinion
on tho concept of tho Prosecution re fe rre d to above.***** Summarizing
tho argument of the Prosecution, i t d eclares: "The Prosecution says
in e ffo c t, th a t any s ig n ific a n t p a rtic ip a tio n in th e a f f a ir s o f the
Nazi Party o r Government i s evidence of a p a rtic ip a tio n in a conspiracy
th a t i s in i t s e l f criminal";****** and i t continues: "Conspiracy is not
defined in tho Chartor but in th e opinion of th e Tribunal the conspiracy
muet be c le a rly outlin ed in i t s crim inal purpose. I t must no t be too
fa r removed from the time of decision and of a c tio n . The planning to
be crim inal must not r e s t merely on the d eclaratio n s of a Party programme
such as are found in the tw onty-five points of the Nazi Party announced
in 1920, or the p o litic a l affirm atio n s expressed in "Mein Kampf" in
la te r years. The T ribunal must examine wether a concrete plan to wage
war e x isted , and determine the p a rtic ip a n ts In th a t concrete plan. '****#**

* Judgment, pages 12 and 13

** Judgment, pages 1^ -17.
u u u
N T IT Judgment, pages 17- 36.
**** Judgment, pages 42 t 3eq

***** Pago 319 above.

u u . u u u
Judgment, page 43.
u u u u u u
Judgment, page 43.
/The Judgment
E/CI!.V.M9
Page 3^2

Tha Judgment thon observas once more th a t the seizure of power hy

tho Nazi Party and the subsequent extension of i t s power over a ll
spheres of Germany's economic and so c ia l l i f e must be remembered when
the la te r plena fo r waging vara are examined,* and i t d eclares: "That
plans were made to wage wars as early a . 5 November 1937** and probably
beforo th a t, ic app aren t,.."* * * In tho opinion of th 9 T ribunal, however,
i t is not necessary to decide "whether a sin g le master conspiracy to tho
extent and over tho time sot out in the Indictm ent has been p ro v e d ..."
"But tho evidence e sta b lish e s w ith c e rta in ty the existence of many
separate plans ra th e r than a single conspiracy embracing them all".* * * *
The tio which binds the defendants to g eth er i s , in the submission
of the Indictm ent, the common plan or conspiracy to commit crimes
ag ain st peace.***** A ll t..e defendants were charged in the Indictment
with th is offence, and i t was moreover th e only offence alleg ed against
a l l the defendants.
An examination of tho p a rts of the Judgment which deal w ith the
individual defendants shows th a t, f i r s t o f a l l , Goering, K e ite l, Baoder
and Nourath were found to be p a rtic ip a n ts in a concrete plan to vago
war. Gocring, Raoder and Naurath took p a rt in th e so -c alle d Holzach
Conference o f 5 November 1937****** where H itle r spoke of the problem
of liv in g space and of tho annexation of A ustria and Czechoslovakia,
which would removo "any th re a t from tho flanks in case o f a p assib le
advance westwards", and moreover strengthen th e German war p o te n tia l.
The d e ta ile d statem ent of H itle r 's o b jects and the d e fin ite tim e-table
given a t th is Conference makv. i t c le a r th a t th is eta+ement was not Just
a re p e titio n of the ra th e r in d e fin ite alms announced so often b efore;
the l a te s t dates fo r tho annexation of A ustria and Czechoslovakia were
now la id down by H itle r as fa llin g betwoen 19^3 and- 19^5 a t tho latest,****

* Cf, Judgment, page 3, and page 320 above.

** The f i r s t of the mootings mentioned on page 320 above in which
H itle r disclosed his concrete plans o f aggression.
*** Judgment, page 43.

**** Judgment, page 43.

***** I t is not necessary to discuss here the opinion of the Prosecution
concerning tho conspiracy t commit war crimes and crimes against
humanity which has been re je c te d by tho Tribunal; c f . however,
Judgment, page 44, and P a rt I , Chapter I , B of the Report.
****** Cf. pages 320 and 321 above and Judgment, pages 84, 111 and 125.
******* Judgment, pago lo .
/K e ite l
 E/C.yvM 9
Pago 323

K eitel was present a t the Conference of 23 May 1939* when H itlo r announced,
his docieion "to tako Poland a t the f i r s t su ita b le opportunity".**
P a rtic ip a tio n in the above-mentioned conference*** c o n stitu te s only one
of the 2rour:3 on which the four above named defendants woro found g u ilty
on Count 1, However, in several cases where defendants were declarod
not g u ilty under Count 1, the Tribunal mentions expressly th a t they had
not taken part in any of those conferences,**** and shows in tn is way
the Importance which i t attached to th is p o in t. Yet i t must be noted
th a t Hess, Eibbentrop, Rosenborg and Jodi were found g u ilty on Count 1
fo r d iffe re n t reasons, none of them having been proeont a t any o f these
conferences.***** The remaining defendantb were found not g u ilty on
Count 1.
I t is shown with the g re a te s t possible c la r ity in tho p a rt of the
Judgment which deals w ith F rick , th a t in the opinion of the Tribunal the
re s p o n sib ility fo r v io la tio n s of human rig h ts c f German c itiz e n s
committed during the period o f seizure of power by tho NSDAP and the
consolidation of i t s p o sitio n in Germany cannot be considered as
p a rtic ip a tio n in a conspiracy w ithin the meaning of A rtic le 6 (a) of
tho C harter.
Frick took over the o ffic e of M inister of th e In te rio r in the
Cabinet formed by H itlo r in 1933, and i t cannot be doubtod th a t he was
larg ely responsible fo r tho previously mentioned v io la tio n s of civ ic
and in d iv id u al rig h ts of German c itiz e n s . In regard to these the
Judgment says: "...T h e now M inister of the In te rio r immediately began
to incorporate lo c a l governments under the sovereignty of the Reich.
The numerous lawB he d ra fte d , signed and adm inistered abolished a l l
opposition p a rtie s and prepared the way fo r the Gestapo and th e ir
concentration camps to extinguish a l l in d iv id u al opposition. Ho was

* Cf. pages 320 end 321 above.

** Judgment, page 91

*** PagoB 320 end 321 above.

***** Cf. Judgment, page 99 (F rick ); page 100 (S tre ic h e r); page 107 (Doonitz)
page 128 (Bomann).

*xxx* As regards Hess, the Judgment says, in te r a lia , . . ^ o s s was

H itle r 's c lo se s t personal confidant; th e ir re la tio n sh ip was such
th a t Hess must have been informed of H itle r 's aggressive plans
when they cam in to existence (judgment, page 87) . Ribbontrop's
p tr tic ip a tic n in concrete plans is proved by h is ro le in the
diplomatic a c tiv ity preceding the aggression ag ain st Poland
(Judgment, page 85) . In the case of Rosenborg i t has b - -- red
th a he was one of the o rig in ato rs of the plan fo r a ttc .rway
(Judgment, page 95) and in J o d i's case h is p a rtic ip a tio n in the
plan concerning tho aggression against Norway, C-rocce, Ttgoalavia,
and Russia (.Juchent, page I I 7).
 E/CN.UAM9
Page 32^

la rg e ly responsible fo r the le g is la tio n which suprrossod tho trad unionB,

th Church, tho Jaws. Be performed, h is ta sk w ith ru th le s s efficien cy ",*
I t ia nevertheless in accordance w ith the notion o f conopiracy, as
defined ty the Judgment, th a t he was not found g u ilty on Count 1. Thus
tho Judgment continues* "Before the date of the A ustrian aggression
F rick was concerned only w ith domostic adm inistration w ithin tho R eich ...
ConBoquontiy, tho Tribunal takes the view th a t Frick was not a member of
tho common plan or conspiracy to wage aggressive war as defined in th is
Judgment."**
Tho Judgment a rriv e s a t a sim ila r conclusion when dealing w ith the
"Leadcrchip Corps" of th e Nazi P arty, the Gestapo and S.D ., and the S.S.
I t was, in the words o f the judgment, "the primary purposes of the
Leadership Corps from i t s b o g in n in g .... to a s s is t the Nazis in obtaining
and, a f te r 30 January 1933 re ta in in g co n tro l of the German State."***
In i t s examination o f th e d e ta ile d a c ti v itie s of th is organization, the
Judgment s ta te s , in te r a lia , th a t i t was one o f tho taBke of the
Leadership Corps to ensure tb highest possible proportion of "Yes"
votes in tho p le b is c ite s , and th a t high ranking p o litic a l leaders were
engaged in c o llab o ratio n w ith th e Gestapo and S.D ., in track in g down
p o litic a l opponents, many of whom were a rre ste d ar.d deported to concentratia
camps.**** Continuing, th e Judgment d e cla re s: "These step s which
r e la te merely to the consolidation o f co n tro l o f the Nazi Party are not
crim inal under the view of the conspiracy to wage aggressive war which
has previously been s e t f o r t h . "***** This is one of the reasons why
persons had ceased to hold the p o sitio n s enumerated intho Judgment p rio r
to 1 September 1939, did not f a l l w ithin the group o f members o f the
Leadership Corps, which has been declared criminal.******
The view adopted in regard to the Leadership Corps a p p lie s,
m utatis mutandis, in the cases o f the Gestapo and S.D, and tho S .S ,
The p a rtic ip a tio n of these organizations in the so -c alle d consolidation
of tho Nazi P a rty 's p o sitio n in Germany i s , in the opinion of the

* Judgment, pages 98 and 99-

** Judgment, pago 99* In view of h is a c ti v itie s concerning the
annexation of A ustria, th e Sudotenland, Memel, Danzig, the
Eastern T e rr ito rie s , e t c ., Frick was found g u ilty on Count 2
(Crimes against Peace).
*** Judgment, pago 68.
**** Jv igment, page 68.
***** Judgment, page 68.
****** Judgment, page 7I .
/T ribunal
 e / cn A / wj .9
Page 325

T ribunal, not loss important than th a t of the Leadership Corps. In th is

case, egain persons who resigned th e ir re le v an t functions before
1 September 1939 did not f a l l w ithin the groups declared crim inal, fo r
the same reasons as wore s e t out in th e case of the Leadership Carps.*
A viow deviating from the opinion of the Judgment, disouueed In
th preceding paragraphs, appears to be represented in the "Dissenting
Opinion" of the Soviet member of the In te rn a tio n a l M ilitary Tribunal
Major-General Jurisprudence I . T, Nikitchenko. Dealing with "The
Unfounded A cquittal of Defendant von PAPEN"** the learned Judge begins
w ith summarizing the fa c ts which, in h is opinion, show von Papen's
re s p o n s ib ility . He points o u t. i n te r a l i a . th a t Papon revoked Bruenlng's
order dissolving the S.S . and S.A., "thus allowing the Nazis to re a liz e
th e ir programme of mass te r r o r ;" th a t "by the a p p licatio n of bru te force
(he) did away w ith the Social-Democratic Government of Braun and Severing";
he "p a rtic ip a te d in the purge of the S ta te machinery of a l l personnel he
considered u nroaliable from the Nazi point of view; on 21 March 1933,
he signed a decree c re atin g spocial p o litic a l trib u n a ls " ; he a lso signed
"an order granting amnesty to crim inals whose crimes were committed in
the course of the 'n a tio n a l re v o lu tio n '. "
From these and other fa c te the loaraed Judge concludes th a t "von Papen
a c tiv e ly aided the Nazis in th e ir seizure o f power"; and "used both his
e ffo rts and h is connections to s o lid ify and strengthen the H itle ria n
t e r r o r i s t i c regime in Germany.. . . "
Ae von Papen was only charged under Counts 1 and 2, i t is obvious
th a t ho was considored by the Soviet Judge as having p a rtic ip a te d in
th e conspiracy to commit crimes ag ain st peace.
The opinion o f the Soviot member of the In te rn a tio n a l M ilitary
Tribunal th a t the re s p o n s ib ility fo r v io la tio n s of civ ic and Individual
rig h ts of German c itiz e n s , which occurred in the period of coneolidatlon
of th e P a rty 's p o sitio n in Germany, i s to be tre a te d as p a rtic ip a tio n in
a conspiracy w ithin tho meaning of A rtic le 6 (a) o f the C harter, can also
be deduced from Section V, "Incorrect Judgment With Regard to the Reich
Cabinet"*** of the "D issenting Opinion". A fter i t has been sta te d th a t
the Reich Cabinot was "the d ire c tin g organ of the S tate with a d ire c t
and activ e rolo in the working out of the crim inal e n te rp rise s" , tho
le g is la tiv e a c ti v itie s of the Cabinet which v io lated civ ic and individual

* Judgment, pages 75 and 79.

** Judgment, pages 137*8
*** Judgment, pago 142 ot seq,
/rig h ts
 e / cnA / w.19
Page 326

rights-guaranteed by the Weimar C onstitution are reviewed. The following

enactments and measures are mentioned, in te r a l i a : the decrees ordering
the c o n fiscatio n o f the property of a l l communistic and social-democratic
organizations, re sp ec tiv e ly ; th e law o f the "Reconstruction of the Reich",
wheroby democratic e lec tio n s wero abolished fo r both c e n tra l and lo cal
re p re se n ta tiv e bodies; th e previously mentioned Law o f 7 A p ril 1933,
and others whereby p o litic a lly u n re lia b le persons wore removed from
Government serv ice; th e d e stru ctio n o f the fre e trad e unions; the creation
c f the Gestapo and concentration camps; th e Nrnberg laws a g ain st the
Jews', e tc .
I t i s in view of these a c ti v itie s , th a t, in the opinion of the
Soviet moniber of the In to rta tlo n a 1 M ilitary Tribunal the Reich Onbinot
ought to be declared a crim inal organization.
However, the "Dissenting Opinion" deals - ap art from the case of
HESS where the death penalty is considered more appropriate than the
sentence passed - exclusively w ith accused persons who were acq u itted .
No d issen tin g opinion is expressed, fo r in stan ce, on th e v e rd ic t
whereby FRICK was found not g u ilty on Count 1, nor on the findings
which excluded members of Borne organizations who had resigned th e ir
functions p rio r to 1 September 1939, from the groups declared crim inal.
The v e rd ic t concerning FRICK and the findings w ith regard to members of
c e rta in organizations follow , as has been shown above,* from th e opinion
of the Tribunal th a t the p a rtic ip a tio n in the previously mentioned
measures during the "seizure of power" and "consolidation" cannot ta
q u a lifie d as p a rtic ip a tio n in a conspiracy as defined by the Tribunal.
5. V iolations of Human Rights o f German C itizens and S ta te le ss Persona
ro ferred to in Count k of the Indictm ent, (Crimes ag ain st Humanity)
Count 4 o f the Indictm ent,** comprises crimes ag ain st humanity
committed w ithin and outside o f Germany, committed before and during
the war, and crimes d ire c te d ag ain st co -n atio n als and a lie n s .
As th is p a rt o f the re p o rt i s concerned exclusively w ith crimes
ag ain st humanity committed against German c itiz e h s (and S ta te le s s persona],
i t i s f i r s t of a l l proposed to e x tra c t those offences from the m aterial
contained in the Indictm ent.
The Indictment d istin g u ish es between "murder, exterm ination,
enslavement, d ep o rtatio n , and o th e r Inhumane a c ts committed ag ain st
c iv ilia n populations before and during the war",*** on th e one hand,

* Page 323 e t seq.

** Indictm ent, Section X.

*** Indictm ent, Section X (A)
/and "persecutions
 e / cn.UA/,19
Page 327

and "persecutions on p o litic a l, r a c ia l, or re lig io u s grounds in

execution of and in connection with the common plan"* mentioned in
Count 1,** on the other hand. The Indictment does n o t, however, contend
th a t only the second type of crimes ag ain st humanity (persecutions, e tc .) ,
is connected w ith a common plan, fo r i t makes the same contention with
regard to the f i r s t typo (Murder, exterm ination, e tc .)* * * . N either
does the Indictment contend th a t only crimes ag ain st humanity of
the f i r s t type were committed before and during the war, fo r i t alleg es
th a t those of the second typo wore aloo committed in both periods.
The following crimes ag ain st humanity c ite d under the headi*ig
"murder, exterm ination, e tc ." , are of in te re s t in th is p a rt of the
re p o rt: the "policy of persecution, repression and exterm ination of
a l l c iv ilia n s in Germany who were, or who wore belioved to , or who were
believed lik e ly to become h o s tile to the Nazi Government and the common
plan or conspiracy described in Count 1"; the imprisonment of such
persons w ithout Ju d ic ia l process; th e ir detention in "protective custody"
and concentration camps where they wore subjected "to persectuion,
degradation, despoilment, enslavement, to rtu re and murder."
The Indictment speaks a l 3o of sp ecial courts the taBk of which
i t was to carry out the w ill of the Nazis; of "favoured branches or
agencies of tho S tate and P arty ", which were perm itted "to operate
outside the range even of N azified law and to crush a l l tendencies
and olements which were considered undesirable"; and of various
concentration camps, in p a rtic u la r o f Buchenwald and Dachau, which
were e stab lish ed as e a rly as 1933 and 193^ re sp ec tiv e ly , and o f th e ir
inmates who wore put to slave labour and murdered and i l l - t r e a t e d , -
a c ts and p o lic ie s which were continued (and extended to the occupied
countries) a f te r 15 Septemb'or 1939, and u n til 8 May 19^5
Under the heeding "Persecution on P o litic a l, R acial and R eligious
Grounds ..,"* * * tho Indictment mentions persecutions diroctod ag ain st
Jews and persons whoso p o litic a l b e lie f or s p ir itu a l a sp iratio n s were
deemed to be in c o n flic t w ith tho aims of the h a zis. I t i s sta te d th a t
JeV3 were system atically persecuted since 1933; th a t they were deprived
of th e ir lib e r ty , thrown in to concentration camps where they were
murdored and ill- tr e a to d ; and th a t th e ir property was confiscated. The

* Tho common plan to which reference is made comprises not only

crimes against poace, but also war crimes and crimes against
humanity. Cf. Judgment, page H and P art I Chapter I.B of tho Report.
** Indictm ent, Soctlon X (D).
*** 'T h is plan involved . . . murder and persecution o f a l l who wore,
o r who wore suspoctod o f being, opposed to tho common plan
a lle g e d in Count 1". (indictm ent, Section X -In tro d u ctio n ).
**** Indictm ent, Section X (B).
Indictment adds "hundreds of thousands of Jews were so tre a te d before the
1 st of September 1939". Going in to d e ta ils , the Indictment speaks of the
anti-Jew ish demonstrations which, by order of the Gestapo, took place a ll
over Germany in November 1938. During these demonstrations Jewish property
was destroyed and 30,000 Jews were a rre ste d and sent to concentration camps,
and th e ir property was confiscated.
The Indictment also deals w ith the persecutions of the Jews a f te r
1 September 1939, which were d ire c ted against both German Jews and the
Jewish p a rt of the in h ab itan ts of occupied t e r r i t o r i e s . As examples of
the persecution of p o litic a l opponents (of German n a tio n a lity ) of the regime,
the murder of the social-dem ocrat, B reitsch eid , and th e Communist,
Thaelmann, and the internment of "numerous p o litic a l and re lig io u s
personages" are quoted.
I t would appear from the survey o f the a c ts o f inhumanity and
persecution committed on p o litic a l, r a c ia l or re lig io u s grounds, and
enumerated in the Indictm ent, th a t only p a rt o f th e v io la tio n s of human
rig h ts d e a lt w ith in Count One of the Indictment have been c la s s ifie d
by the prosecution as crimes ag ain st humanity.
I t is not the in te n tio n o f th is re p o rt to examine in d e ta il which
sp e c ific human rig h ts have been v io la te d by th is or th a t crime against
humanity. I t i s , however, p o ssib le to in d icate some v io la tio n s o f human
rig h ts which m anifestly do not c o n stitu te crimes ag ain st humanity.
I t has been pointed out* th a t, in the opinion of the Prosecution, the
no tio n of conspiracy to commit crimes against peace covers a c ts such as
the d e stru ctio n of the parliam entary system in Germany; the p ro h ib itio n
of a l l p o litic a l p a r tie s , w ith the exception of th e NSDAP; the curtailment
of the freedom of popular e le c tio n s; and the tra n s fe r of plenary powers of
le g is la tio n to H itle r and h is Cabinet. The Indictment also considers
p a rtic ip a tio n in the le g is la tiv e and ad m in istrativ e measures which reduced
the powers of regional and lo c a l governments throughout Germany,
transform ing them in to subordinate div isio n s of the C entral Government, as
evidence of p a rtic ip a tio n in a conspiracy which is crim inel under
A rtic le 6 (a) of the C harter. The suae ap p lies to the r e s tr ic tio n of the
Independence of the Ju d iciary , the removal of Jews from the Bench fo r
p o litic a l or r a c ia l reasons, and the discharge of c iv il servants of
"non-Aryan descent", and of those whose p o litic a l views did not comply
w ith the requirements of the regime. S im ilarly , in the opinion of the
Prosecution, p a rtic ip a tio n in the d e stru ctio n of the fre e trad e unions in

c f. page 318 e t seq. above

/Germany,
 E/CNA/w.19
Page 329

Germany, the attem pt o f the N atio n al-S o cialist regime to subvert the
influence of the Churches over the people and, in p a rtic u la r, over the
youth of Germany, the educational measures of the regime and I t s control
over the dissem ination of inform ation and the expression of opinion
w ithin Germany, c o n stitu te s p a rtic ip a tio n in a common p lan to commit war
crim es, as s e t out in Count Cne.
These and sim ila r v io la tio n s of civ ic and individual rig h ts of
German c itiz e n s remain, however, outside the f ie ld covered by Count 1*.*
The crimes against humanity (committed against German c itiz e n s ) which are
contained in the Indictm ent, are v io la tio n s of the in te g rity of l i f e and
body, v io la tio n s of the rig h t to l i f e and of the rig h t to personal
lib e r ty , and - to a minor extent - v io la tio n s of property r ig h ts . They
were d ire c ted against members of p o litic a l and re lig io u s groups, who were deer
to be opponents of the N ational S o c ia lis t regime, and, above a l l , against
the Jews.
The f ie ld of v io la tio n s of human rig h ts of German c itiz e n s covered by
Count 1 is wider than th a t of the v io la tio n s of th is kind covered by
Count b. And, moreover, the v io la tio n s in Count 1, so f a r as they concern
German c itiz e n s , include those in Count 4. The v io la tio n s of human rig h ts
of German c itiz e n s 3 which appear in Count b, a re , in other words, p a rt of
the v io la tio n s included in Count Cne.
The Indictee at c ite s both a cts of inhumanity and persecution on
p o l i t i c a l , r a c ia l or r e l i g i o n grounds, which were committed p rio r to the
outbreak of wav, and th e ce ccimnittci during the war.
Their conn-itt.ten vdth crimes w ithin the J u ris d ic tio n of the Tribunal
required by A rtic le 6 (c) of the Charter** is e stab lish ed in the opinion
of the Indictm ent, by the policy in which the crimes against humanity
o rig in ated . The Indictment emphasizes repeatedly th a t they were
p ersecution, ^eveessien and exterm ination of axl c iv ilia n s who were
considered by the Nazi Regime as h o s tile to the common plan or conspiracy
described in Count 1.***

* As b a sis fo r comparing the contents of Count 1 and Count use 1ms

been made of the Indictment and Judgment. A fter examination of the
tr a n s c r ip ts , some q u a lific a tio n s may become necessary.
** Cf. page 316 above, and P art I, Chapter I , B of the Report. A rtic le
6 (c) of the Charter speaks of the connection w ith e ith e r crimes
ag ain st peace or war crimes. The Indictment attempted to show the
connection of crimes against humanity (committed before tho war)
w ith crimes ag ain st peace, but not w ith war crimes.
*** Cf. page 326 above, p a rtic u la rly footnote No.
/To discover
e /CN.)|/w .19
Page 330

To. discover the opinion of the T ribunal, i t is proposed f i r s t to

examine.the sectio n of t h e Judgment dealing w ith war crimes and crimes
against humanity in general.*
Here we fin d th a t the. sectio n "Murder and Ill-tre a tm e n t of C iv ilian
Population"** is concerned exclusively with war crimes and crimes against
humanity committed during the war. I t dwells a t seme length on the b ru ta l
suppression of a l l opposition to the German occupation a u th o ritie s , but i t
re fra in s from examining the p ersecution of opponents of the Nazi Government
in Germany, as mentioned in the Indictm ent.
This sectio n of the Judgment alludeB moreover to the measures taken
ag ain st Jews (during the war); and more e sp e c ially to those d irected
ag ain st the Jews in occupied t e r r i t o r i e s . I t does n o t, however, attempt
to d istin g u ish between Jews of A llied n a tio n a litie s and German Jews.
The fa te of the German Jews before and during the war is reviewed in
d e ta il in the se c tio n "Persecution of the Jews".*** This se c tio n recounts
the discrim inatory laws, enacted a f te r the seizure of power, which lim ited
the o ffice s and professions perm itted to Jews; and the re s tr ic tio n s which
were placed on th e ir fam ily l i f e and th e ir rig h ts of citizenship.****
I t is observed th a t, by the autumn of 1938, the Nazi p o licy towards
the Jews had reached the stage where i t wbb d ire c te d towards the complete
exclusion of Jews from German l i f e . Among the measures instanced as
v
belonging to th is period were: the organized Pogroms, the coll.uL ive fine
of one b illio n marks imposed on the Jews; the seizure of Jewish e s ta te s ;
the reg u latio n s r e s tr ic tin g the movement of Jews to c e rta in sp ec ific
d i s t r i c t s w ithin c e rta in hours; the c re a tio n 'o f G hettos, e tc . The
Judgment then turns to the exterm ination of th e Jews during the war. The
offences described here occurred mostly in the occupied t e r r i t o r i e s . Their
victim s were m illions of Jews, mainly of P o lish and Russian o rig in . I t is,
however, c le a r from the te x t th a t the Jews of no country were spared.
A fter dealing in General terms w ith war crimes and crimes against
humanity, the Judgment discusses "The Law R elating to War Crimes and Crimes
a g ain st Humanity***** - _.d s ta te s w ith resp ect to the crimes ag ain st
humanity of in te re s t here: " ........ There is no doubt whatever th a t p o litic a l

* Judgment,pages 1+4-46.
** Judgment, page 48 e t seq.
*** Judgment, page 60 a t seq.
**** Ihe v io la tio n s re fe rre d to in th is passage in te rfe re d p a rtly with
fundamental rig h ts and freedoms which are not involved in the crimes
against humanity mentioned in the Indictm ent, (c f. page 327 e t seq.,
above). However, in view of the negative a ttitu d e of the Tribunal
towards the question of crimes ag ain st humanity committed before the
war, l i t t l e p ra c tic a l importance attaches to th is d ifferen ce.
***** Judgment, page 60 e t seq.
/opponents
 e / cnA / w.19
Page 331

opponents were murdered in Germany before the war and th a t many of them were
kept in concentration camps in circumstances of g reat horror and c ru elty .
The policy o f te r r o r was c e rta in ly c a rrie d out on a v a st scale and, in
many cases, was organized and system atic. The policy o f persecution,
rep ressio n and murder of c iv ilia n s in Germany before th e war o f 1939/ vho
were lik e ly to be h o s tile to the Government was most ru th le s s ly c arrie d out.
The persecution of Jews during the same period is e stab lish ed beyond a l l
doubt."*
A fter having e stab lish ed the f a c ts , th e Judgment continues: "To
c o n stitu te crimes against humanity the a c ts re lie d on before th e outbreak of
war must have been in execution o f, or in connection w ith, any crime w ithin
the J u ris d ic tio n of the Tribunal."**
As mentioned above, the n ecessity of e sta b lish in g a connection between
crimes against humanity committed before the war and crimes ag ain st peace,
or war crimes, had been appreciated in th e Indictment.***
Without expressing any opinion on th e points put forward by the
Prosecution, the Judgment proceeds: "The Tribunal is of the opinion th a t, '
re v o ltin g and h o rrib le as many of these crimes were, i t has not been
s a tis f a c to r ily proved th a t they were done in execution o f, or in connection
w ith, any such crime. The Tribunal th e re fo re cannot make a generell
deolaration th a t the a c ts before 1939 were crimes ag ain st humanity w ithin
the meaning o f the C harter, but from the beginning of the war in 1939 var
crimes were committed on a v a st sca le , which were a lso crimes against
humanity; emd in so fa r as the inhuman acta charged in the Indictment and

* Judgment, page 65.

** judgment, page 65.
*** C f. page 33O above- A dditional arguments fo r th is connection were
submitted by the Prosecution during the proceedings. I t was pointed
out th a t the c o lle c tiv e fin e imposed on the Jews in 1938 and the
confiscatio n of th e ir fin a n c ia l holdings were apparently intended to
procure the means required fo r armaments
Moreover, an a r tic le e n title d "Jewish question as a fa c to r in
German p o licy in the year 1938" published in 1939 1& the German
Foreign Office C ircular, was submitted with the object of showing
th a t the connection of the anti-S em itic policy with aggressive war was not
lim ited to economic m utters. The a r tic le sa id , in te r a l i a , " It is
c e rta in ly no coincidence th a t the fa te fu l year 193$"has brought
nearer the so lution of the Jewish question simultaneously with the
re a liz a tio n of the idea of G reater Germany, since the Jewish policy
was both the b a sis and the consequence of the events of the year
I 93C.. The d estru ctiv e Jewish s p i r i t in p o litic s , economy and cu ltu re
paralyzed the power and the w ill o f the German people to r is e a g a in ...
The healing of th is sickness among the people was th erefo re
c e rta in ly one of the most important requirements fo r exerting the force
which in the year 193G re su lte d in the Joining together of Greater
Germany in defiance o f the world" (c f. Judgment, page 6l ) .
/committed
E/CN.V w.19
Page 332

committed a f te r the beginning of the war did not c o n stitu te war crimes
they were a l l committed in execution o f, or in connection w ith, the
aggressive war and th e re fo re c o n stitu te d crimes ag ain st humanity."*
The Tribunal declined to make a general d ecla ra tio n "with regard to
crimes ag ain st humanity committed before th e war". I t remains to be
examined in what manner th e law e sta b lish e d by the Tribunal has been
applied in the sections o f the Judgment dealing w ith the accused
in d iv id u ally .
I t w ill be necessary to in v e stig ate whether, a t le a s t in sp ec ific
cases, inhuman a cts committed ag ain st German c itiz e n s before th e war
were considered as crimes ag ain st humanity w ithin the meaning of
A rtic le 6 (c) of the C harter. F urther, sin ce, in the opinion of the
Tribunal, a l l inhumane a c ta c ite d in th e Indictment and committed during
the war c o n stitu te war crimes or crimes ag ain st humanity w ithin the
meaning of the C harter, i t w ill probably be p o ssib le to discover among
the offences fo r which the accosed have been held responsible crimes
ag ain st humanity committed against German c itiz e n s or S ta te le ss persons
during the war.
The two sections o f the general p a rt o f the Judgment which deal
in te r a l i a , w ith crimes ag ain st humanity committed ag ain st German citizen s
and S ta te le ss persons, have already been reviewed.**
Offences of th is type f a llin g w ith in th e pre-war period a re , a lso ,
the subject o f the p a rts of the Judgment concerning Goering, F rick,
S tric h e r and Funk.
Of Goering i t is said:*** "Goering persecuted the Jews, p a rtic u la rly
a f te r the November 1938 r i o t s , and not only in Germany where he ra ise d
the b illio n Mark fund as Btated elsew here..."****
Concerning F rick, the Judgment s ta te s : "Uways ra b id ly anti-S em itic,
F rick d ra fte d , signed and adm inistered many laws designed to elim inate
Jews from German l i f e and economy. His work formed th e b asis of the
Nuremberg Decrees, and he was activ e in enforcing them: Responsible for
p ro h ib itin g Jews from following various professions and fo r confiscating
th e ir p ro p e rty ... "***#*

* Judgment, page 65.

** Page 331 e t seq. above.
n * w
nW These and the following quotations are taken from the sectio n s of the
re le v an t p a rts of the Judgment e n title d "War Crimes and Crimes
against Humanity".
Judgment, page 85.
Judgment, page 99.
/"The p o lice
 E/CN.I+/w.19
Page 333

"The p o lice o f f ic ia lly f e l l under the ju ris d ic tio n of the Reich

M inister of the In te rio r , but Frick a c tu a lly exercised l i t t l e control over
Himmler and police m atters. However, he signed the law appointing
Himmler Chief of the German P olice, as well as the decrees e stab lish in g
and reg u latin g the execution of orders fo r p ro tectiv e custody. From the
many complaints he received and from the testimony of w itnesses the
Tribunal concludes th a t he knev of a tr o c itie s committed in these camps."*
And in regard to S treich er: "For h is tw enty-five years of speaking,
w riting and preaching hatred of the Jews, S treich er was widely known aa
"Jew -baiter No. 1". In h is speeches and a r tic le s , week a f te r week, month
a fte r month, he infected the German mind w ith the v iru s of anti-Semitism
and in c ite d the German people to activ e persecution. Each issue of the
"Strmer" which reached a c irc u la tio n of 600,000 in 1935/ was f i l l e d with
such a r tic le s , often lewd and disgusting.
"S treicher had charge of the Jewish boycott of 1 A pril 1933- He
advocated the Nuremberg decrees of 1935. He was responsible fo r the
dem olition, on 10th August 1938/ of the Synagogue in Nuremberg; and on
10th November 1938 he spoke p u b licly in support of the Jewish Pogrom which
was taking place a t th a t time.
"But i t was not only in Germany th a t th is defendant advocated h is
doctrines. As early as 1938 he began to c a ll fo r the a n n ih ila tio n of the
Jewish r a c e ... Typical o f h is teaching was a leading a r tic le in
September 1938, which termed the Jew a germ and a p e st, not a human being,
but *a p a ra s ite , enemy . . . who must be d e s tro y e d ...'"

"Other a r tic le s urged th a t only when world Jewrj had been an n ih ilated
would the Jewish problem have been solved, and p red icted th a t f i f t y years
hence the Jewish graves "w ill proclaim th a t th is people of murderers and
crim inals has, a f te r a l l , met i t s deserved fai e..." A leading a r tic le of
"Der Strmer" in May 1939> shows c le a rly h is aim: "A punitive expedition
must come ag ain st the Jews in R ussia. .The Jews in Russia must be k i l l e d . . . "
"As the war in the early stages proved successful in acquiring
more and more te r r it o r y fo r the Reich, S treich er even in te n s ifie d h is e ffo rts
to in c ite the Germans against the Jews. In the record are tw enty-six
a r tic le s from "Der Strmer", published between August 19^1 and September 19^.-
twelve by S tre ic h e r' 3 own hand, which demanded a n n ih ila tio n and
exterm ination in unequivocal t^ rm s...
"With knowledge of the exterm ination of the Jews in the occupied
Eastern t e r r i t o r i e s , th is defendant continued to w rite and publish h is

* Judgment, pages 99-100.

/propaganda
 K/en.h fr .19
Page 331*-

propaganda of d e a th ...
"S tre ic h e r' 8 incitem ent to murder and exterm ination a t the time when
Jews in the East were being k ille d under the most h o rrib le conditions
c le a rly c o n stitu te s persecution on p o litic a l a n d .ra c ia l grounds in
connection with war crimes as defined by the C harter, and c o n stitu te s a
crime against humanity."*
Of Funk i t is said: "In h is capacity as Under-Secretary in the
M inistry of Propaganda and Vice-Chairman .of th e Boich Chamber of Culture,
Fun: had p a rtic ip a te d in the early. Nazi p r.Tgra-vze of economic
discrim ination against the Jev3. On fiys.Voer 1?3^: a f te r the Pogrom
of November, . . . he attended a meeting held under the Chat'Eianship of
Goering to discuss th e s o lu tio n .o f the Jewish problem, and proposed a
decree providing fo r the banning of Jews from a l l business a c tiv itie s which
Goering issued the same day under the a u th o rity of the Four-Year Plan.
Funk had t e s t i f i e d th a t he was shocked a t the outbreak of 10th November,
but on 15th November he mad,e a speech describing these outbreaks as a
"v io len t explosion of the disgust of the German people"; and saying th a t the
elim ination o f the Jews from economic l i f e followed lo g ic a lly th e ir
elim ination from p o litic a l lif e ." * *
Goering, F rick, S treich er and Funk.were found g u ilty on Count h;
crimes ag ain st humanity committed ag ain st Gorman c itiz e n s (and S ta te le ss
persons) before the war c o n s titu te , however, only p a rt of th e ir offences,
which include crimes ag ain st humanity committed ag ain st A llied n ationals
during th e war. Consequently, i t cannot be demonstrated w ith c e rta in ty
in these cases th a t th e ir crimes ..against humanity,, committed ag ain st German
c itiz e n s before the war, were re le v an t fo r the v e rd ic t on Count The
l a s t paragraph of the sec tio n quoted above,*** whore the Judgment deals
w ith S tre ic h e r, p o ints ra th e r in the opposite d ire c tio n .
More enlighteum ent.can be derived from the p a rts of the Judgment which
concern the accused organizations. In the p a rt re fe rrin g to the Leadership
Corps, under the heading "Aims and A c tiv itie s.," the pre-war a c tiv itie s of
the organization are reviewed,**** and i t is mentioned th a t members of the
Leadership Corps collaborated with the Gestapo and S .D ..in searching fo r
p o litic a l opponents and contributed to th e ir a rre s t and detention in
concentration camps. Under the heading "Criminal A ctivity" the Judnent

* Judgment, pages 101-1C2.

** Judgment page IO3.
*** Page 333 above.
**** Of. page 32U.
/sa y s: "These
 E/CN.U/w .19
Pago 335

says: "These steps which re la te merely to the consolidation of control of

the Nazi Party are not crim inal under the view of the conspiracy to wage
aggressive war,* which has previously hoen se t fo rth ". .Persons who have
resigned th e ir membership p rio r to 1 September 1939, f a l l th erefo re outside
tho group declared crim inal.**
In the case of the Gestapo and S.D., under the heading "Criminal A ctivity"
i t is s a id : "O riginally one of the primary functions of the Gestapo was the
prevention of any p o litic a l opposition to the Nazi regime, which i t
performed w ith the assistan ce of tho S.D. The p rin c ip a l weapon used in
performing th is function wa3 the concentration camp. The Gestapo. . .was
responsible fo r the detention of p o litic a l priso n ers in those camps.
Gestapo o f f ic ia ls were usually responsible fo r th e in te rro g a tio n of p o litic a l
prisoners a t the camps.
"The Gestapo and the S.D. a lso d e a lt w ith charges of treaso n and with
question re la tin g to the P ress, the Churches and the Jew3. As tho Nazi
program e of anti-S em itic persecution increased in in te n s ity th e ro le
played by these group? became in creasin g ly im portant. In the e arly
morning of 10th November 1938, Heydrich Bent a telegram to a l l o ffic e s of
the Gestapo and S.D. giving in stru c tio n s fo r the organization o f the
Pogroms of th a t date, and in s tru c tin g them to a r r e s t as many Jews as the
prison could hold "esp ecially ric h ones"...B y November 11th, 1938,
20,000 Jews had been a rre ste d and many wore sent to concentration
camps. . . "***
In a subsequent passage, th e Judgment deals with crimes against
humanity committed in the occupied t e r r it o r ie s during the war. I t then
arriv e s a t the following "Conclusion": "The Gestapo and S.D. were used fo r
purposes which were crim inal under the Charter involving the persecution
and exterm ination of the Jews, b r u ta litie s and k illin g s in concentration
camps, excesses in the adm inistration of occupied te rrito rie s ..." * * * * A
group of members of the Gestapo and S.D. more clo sely defined in the
Judgment was declared crim inal: "The b asis fo r th is finding is the
p a rtic ip a tio n of the organization in war crimes and crimes against humanity
connected w ith the war."***** Here, too, persons who had ceased to bo

* No reference is made in the Judgment to crimes against humanity

committed by members of th is organization before the war and to
the ooinion of the Tribunal with regard to such offences, (c f.
page 330 e t seq. above.
** Judgment, page 71
*** Judgment, page 73.
**** Judgment, page 75.
M U M U 1
Judgment, page 75*
/members p rio r
 e/CN.4/W.19
Page 336

members p rio r to 1 September 1939; are excluded from tie crim inal group,
In the case of the S .8., the p ic tu re is sim ilar to th a t in the case of
the Gestapo and S.D. Here, to o , under the heading "Criminal A ctiv ity ", the
Judgment speaks of offences ag ain st German c itiz e n s committed before the war.
To mention one example only: "From 1934 onwards the S.S. was responsible
fo r the guarding and adm inistration of concentration camps. The evidence
leaves no doubt th a t the c o n siste n tly b ru ta l treatm ent of the inmates was
c a rrie d out as a re s u lt of the general policy of th e S .S ., which was th a t the
inmates were ra c ia l in fe rio rs to be tre a te d only with contempt".*
Also in the case of the S.S. (as in the case of the Leadership Corps and
the Gestapo and S.D.) persons who belonged to the organization only before
the war, i . e . during a period in which nothing but crimes ag ain st humanity
committed against German c itiz e n s and S ta te le ss persons can be charged
against the organization,** are excluded l'rom the group declared crim inal.
They are the persons who l e f t th e organization p rio r to 1 September 1939,
th a t i s , before the organization became responsible fo r war crimes and
crimes against humanity oth er then th e type mentioned above.
The same p rin c ip le s were applied in the case of the S.A. Of the S.A.
the Judgment says: "The S.A. was also used to dissem inate Nazi ideology and
propaganda and placed p a rtic u la r emphasis on a n ti-se m itic propaganda...
"A fter the Nazi advent to power and p a rtic u la rly a f te r the e lec tio n s of
5th March, 1933, the S.A played an important ro le in e sta b lish in g a Nazi
reig n o f te r r o r over Germany. The S.A. was involved in outbreaks of violence
against the Jews and was used to a rre s t p o litic a l opponents and to guard
concentration, camps, where they subjected th e ir p riso n ers to b ru ta l
m istreatm ent.
"On 30th June and 1 st and 2nd Ju ly , a purge of S.A. leaders o c cu rred ...
This purge re su lte d in a great reduction in the influence and power of the S.A
A fter 1934, i t rap id ly declined in p o litic a l s ig n if ic a n c e ....
"Some S.A. u n its were used to blow up synagogues i n the Jewish pogrom
of ICth and 11th November, 193".
A fter having e stab lish ed these f a c ts , the Judgment concludes:
"Up u n til the purge beginning on 30th June 1934, the S.A. was a
group composed in large p a rt of ru ffia n s and b u llie s who p a rtic ip a te d

* Judgment, page 77-

** The p a rt played by these organizations (in p a rtic u la r by the Gestapo and
S.D.) in the a tr o c itie s committed in A ustria and Czechoslovakia before
1 September, 1$39, ra is e s le g a l problems which have not boon touched upon
in th is sectio n of the rep o rt ( c. f . however, P art I , Chapter I , B of the
R eport.) But nothing to be said in th is connection a ffe c ts the argument
put forward in the te x t above.
/ i n the Nazi
 e / ci . U/w. 19
Page 337

In the Nazi outrage of th a t period. I t has not been shown, however,

th a t these a tr o c itie s were p a rt of a sp ec ific plan to wage aggressive
war, and the Tribunal th erefo re cannot hold th a t these a c tiv itie s were
crim inal under the C h arter."*
There was, moreover, no evidence to show th a t the members of the S.A.
generally p a rtic ip a te d in war crimes and crimes ag ain st humanity committed
after 1 September 1939 The Tribunal th erefo re declined to declare tho S.A.
to be a crim inal organization.**
The Soviet member of the In te rn a tio n a l M ilitary T ribunal, who expressed
a dissenting opinion in a l l cases of a c q u itta l, and, in p a rtic u la r, In a l l
other cases where the Tribunal did not declare an accused organization to be
criminal, omitted to do so in the case of the S.A. He th erefo re seems to
concur in the opinion of the Tribunal, as s e t fo rth in the preceding paragraphs
in regard to crimes against humanity committed ag ain st German c itiz e n s and
Stateless persons before 1 September 1939
In view of the above mentioned fin d in g s, i t is submitted th a t in the cases
of Goerlng, F rick, S treicher and Funk*** also tho v e rd ic t of g u ilty on Count 4
vas not basod on the crimes against humanity committed ag ain st German c itiz e n s
or S tateless persons with which the defendants were charged.
The p a rts of the Judgment dealing with the accused in d iv id u ally frequently
mention under headings such as "Crimes Against Peace", 'War Crimes and Crimes
Against Humanity", "Criminal A c tiv itie s " , e t c . , (evidently by way of
illu s tra tio n ), fa c ts which in themselves do n et c o n stitu te offences f a llin g ,
in the opinion o f the Tribunal, w ithin i t s ju risd ictio n .* * * * No re lia b le
conclusion can th erefo re be drawn from the fa c t th a t a tr o c itie s are mentioned
under headings such as those mentioned above.
Crimes against humanity committed ag ain st German c itiz e n s and S ta te le ss
persons during the war are repeatedly mentioned in the p a rts of the Judgment
dealing with individual defendants.*****
I t w ill be convenient in th is connection, tc deal f i r s t with the
organizations which were declared crim inal.

* Judgment, page 80.

** Judgment, page 80.
*** Cf. page 332 e t s e q ., above.
**** c f . , fo r instance, the section re la tin g to Goering where reference is made
to fa c ts which, in the opinion of the Tribunal (in th is respect contrary to
the opinion of the Prosecution) did not c o n stitu te p a rtic ip a tio n in a
conspiracy w ithin the meaning of A rticle 6 (a) of the C harter. (Judgment,
pace 84). Cf. fu rth e r, the sectio n "Criminal A c tiv itie s of the Gestapo
and S.D." (page 334 e t se q ., above) and o th ers.
***** As to the general p a rt of the Judgment, c f. page 326 e t seq. above.
/The Judgment
 e / cn.!+/w.19
Page 338

The Judgment says of the Leadership Corps th a t i t was used to prevent

German public opinion from reactin g against the measures taken against the
Jews in the E ast. In 19^2, a co n fid en tial inform ation b u lle tin vas sent to
a l l G auleiters and K re is lo ite rs , e n title d "Preparatory measures fo r the final
so lu tio n of the Jewish question in Europe. Rumours concerning the conditions
c f the Jews in the E a st." This b u lle tin contained no e x p lic it statement that
the Jews were being exterm inated, but i t did in d ic a te th a t they wex*e going
to labour camps, and spoke of th e ir complete segregation and elim ination and
the n ecessity of ru th le ss se v e rity . The Judgment remarks th a t "Even a t its
face value i t in dicated the u tiliz a tio n of the machinery of the Leadership
Corps to keep German public opinion from re b e llin g a t a programme which was
sta te d to involve condemning the Jews of Europe to a life tim e of slavery".
F urther, there is evidence th a t in August I 9M+, the Leadership Corps had
knowledge of the deportation of ^30,0C0 jews from Hxuigary.
As to the Gestapo and S.D ., the Judgment, says: "On the 2Hh January 1939;
Heydrich, Chief of the Security Police and S .E., was charged with furthering
the em igration, evacuation of Jews from Germany, and on 31et July 19^1, with
bringing about a complete so lu tio n of the Jewish problem in German dominated
Europe. A special section of the Gestapo o ffic e of the ESHA under
Standartenfhrer Eichmann was s e t up with re s p o n s ib ility fo r Jewish m atters...
Local o ffic e s of the Gestapo were used f i r s t to supervise the em igration of
Jews and l a t e r to deport them to the E a st, both from Germany and from the
t e r r i t o r i e s occupied during the w ar".* The Judgment continues w ith the
notorious h isto ry o f the Einsatzgruppen and the wholesale slau g h ter of Jews.**
Describing the crim inal a c tiv itie s of the S .S ., the Judgment says:
"Through i t s co n tro l of the organization c f the p o lic e , particularly
the Security Police and S.D ., the S.S. was involved in a l l the crimes
which have been outlin ed in the sectio n of th is Judgment dealing with
the Gestapo and S.D."***
Mention has already been made of th e re s p o n s ib ility of the S.S. as established
by the T ribunal, fo r the guarding and ad m in istratio n of concentration camps.***
In regard to the individual defendants accused, the Judgment s ta te s ,
in te r a l i a , th a t Goering was "the c re a to r o f the oppressive programme against
the J e w s ...a t home and abroad;"****# and th a t Kalteribruaner, as ch ief of the
RSBA since 19^3 was responsible fo r the offences which have been discussed in

* Judgment, pages 73-7^

** Judgment, page 7^-
*** Judgment, page 77*
**** Cf. pages 335-336.
***** Judgment, page 86. .
/connection
 e / cn .H/w.19
Page 339

connection w ith the Gestapo and S.D.*

According to the Judgment, Rosenberg is held responsible fo r the
confiscation of Jewish property. As M inister fo r Occupied Eastern
T e rrito rie s (from 19*+-1 onwards) "he helped to formulate the p o lic ie s o f . . .
exterm ination of Jews........, and s e t up the adm inistration which c a rrie d them
o u t" ........"his d ire c tiv e s provided fo r the segregation of Jews u ltim ately in
Ghettos, h is subordinates engaged in mass k illin g of Jews......... " In
Eecember lfM . "Rosenberg made the suggestion to H itle r th a t in a case of
shooting 100 hostages Jews only be used."**
In the opinion of tho Tribunal, Frank, too, in h is capacity of Governor
General of the Occupied Polish T e rrito ry , is to be held responsible fo r the
persecution of the Jews in the Genoral Government. "The area o rig in a lly
contained from 2,500,000 to 3,500,000 Jews. They were forced in Ghettos,
subjected to discrim inatory laws, deprived of the food necessary to avoid
starv atio n and, f in a lly , system atically and b ru ta lly exterm inated. . . .By
25th January 1 9 ^ , Frank estim ated th a t th ere were only 100,000 Jews le ft." * * *
The crimes against humanity, ag ain st German c itiz e n s and S ta te le ss
persons, both before and during the war, fo r which F rick , S treich e r and
Funk were held responsible have been mentioned above.
Schierach, as the Tribunal e sta b lish e d , was im plicated in the persecution
of the Jews.****
The examples of crimes again st humanity committed ag ain st German c itiz e n s
and S ta te le ss persons during the war, which are instanced in the Judgment,
were, speaking g enerally, d irected against Jews reg ard less of th e ir
n a tio n a lity . The Judgment in d ic a te s , in one o r two passages, th a t there
were German Jews amongst the v ictim s; **** as a ru le , no a tte n tio n is paid
to the n a tio n a lity of Jewish v ic tim s.
Crimes against humanity, committed against German citizens_ other than
Jews, dtiring the war, are only sparingly mentioned in the Judgment. All th a t
can be discovered, indeed, apart from the fa c ts sta te d in the general p art
of the Judgment and recorded above,****** arc one or two remarks in the sectio n
concerning F rick . There, i t is s a id , th a t Frick signed the decrees
e stab lish in g Gestapo Ju risd ic tio n over concentration camps, including the

* Judgment, pages 93 and ?b (c f. pages 33^ ar.d 335 above.)

** Judgment, pages 95 and 96.
*** Judgment, page 97
**** Judgment page llU .
***** c f . fo r example, Judgment, page 7 b and page 330 above.
****** 0f . page 329 e t se q ., above.
/execution
 e / cn.U/w.19
Pago 31*0

execution o f orders fo r p ro te c tiv e custody1.* The Judgment p o in ts out in

several passages th a t these decrees also a ffe cted German n a tio n a ls both
before and during the war.
No defendant was found g u ilty on Count ^ (Crimes against Humanity)
merely in view of crimes ag ain st humanity committed ag ain st German citiz en s
and S ta te le ss persons during the war. The general opinion as to these
offences held by the Tribunal** however, leaves no doubt th a t they were
considered as f a llin g w ith in the J u ris d ic tio n o f th e Tribunal and were
th e re fo re taken in to account.
6. Summary and Conclusions
The conclusions reached so fa r may be summarized as follow s:
1. The In te rn a tio n a l M ilitary Tribunal i s , in substance as w ell as
in name, an in te rn a tio n a l tr ib u n a l.
I t has been suggested in c e rta in q u arters th a t i t was the intention
of the p a rtie s to the agreement of 8 August 1$:1*5, who, by d eb ellatio
had become the jo in t sovereigns of Germany, to e s ta b lis h in substance,
jo in t m ilita ry trib u n a ls under municipal law, ra th e r than a tru ly
in te rn a tio n a l trib u n a l. On the oth er hand, i t must be pointed out
th a t the Tribunal o rig in ate d , lik e any other in te rn a tio n a l court or
trib u n a l, In an in te rn a tio n a l tr e a ty and th a t i t was not the Control
Council fo r Germany bu t th e Governments o f th e S ta te s p a rtie s to the
agreement, which esta b lish e d the Tribunal and appointed i t s members.
Moreover, i t should be noted th a t the four sig n ato rie s were a ctin g ,
to use the words of the 'Preamble of the Agreement, "in the in te r e s t of
a ll the United N ations". The agreement was concluded, not only by the
four occupying Powers, but also by the many o th er United Nations which
adhered to i t , and i t was intended - not fo r the prosecution of German
war crii^Lnals only - but fo r the prosecution of the "Major War Criminals
o f the European A xis".
2. The judgment derives the ju ris d ic tio n of the Tribunal from two
d iffe re n t sources:
la) from the Jo in t sovereignty over Germany assumed by the four
A llie d Powers which created the T ribunal. I t i s generally
accepted th a t sovereignty over te r r it o r y is acquired i f , a f te r
subjugation of th is t e r r it o r y , a S tate declares i t s annexation find
i f , moreover, such d e claratio n has been recognized by the other
S tates of the world. The four Powers, then in complete control of
Germany, assumed by the B erlin D eclaration of 5 June 19^5, "supreme

* Judgment, pages 99-10'-

** Judgment, page 65 (c f. pages 331-32 above).
/a u th o rity
 E/CN.U/W.19
Page 3^1

a u th o rity with respect to Germany". They announced the lim ited

purposes of th e ir d eclaratio n and i t was said not to e ffe c t any
annexation. Since the Wider rig h t o f annexation includes the
le s s e r rig h ts claimed hy the B erlin D eclaration, and since th is
d e c la ra tio n has been recognized by the United Nations and n eu tral
S ta te s , the exercise of poverB of le g is la tio n , adjudication and
adm inistration in Germany by the four A llied Powers, appears
perm issible under in te rn a tio n a l law. Consequently, the p a rtie s
to the Agreement of 8 August 19^5, have the power to enact the
Charter annexed to the Agreement as a le g is la tiv e a c t fo r Germany.
(b) The Judgment fu rth e r mai.es reference to the in te rn a tio n a l
b a sis of the T rib u n al's ju ris d ic tio n . In te rn a tio n a l law lim its the
crim inal J u risd ic tio n of a S tate; th ere is no doubt, however, th a t
every S tate has the au th o rity to s e t up sp ecial courts to tr y any
person w ithin i t s custody who commits war crimes - a t le a s t i f
such offences th re a ten i t s sec u rity . I t is believed th a t th is
J u ris d ic tio n is broad enough to cover the J u ris d ic tio n over
v io la tio n s of human rig h ts of German c itiz e n s and S ta te le ss persons,
which the Tribunal assumed.*
(c) A th ir d source of the J u risd ic tio n of the Tribunal is
suggested by the Preamble to the Agreement of 8 August 19^5; i t
8ayB th a t the "signatories" when concluding the Agreement, were
"acting in the in te re s ts of a l l the United Nations"; and A rtic le 5
of the Agreement declares th a t "any Government of the United Nations
may adhere to th is Agreement". Legal w rite rs have pointed out th a t
also A rtic le 5 of the Mobcow D eclaration and A rtic le 2 (6) of the
Charter o f the United Nations support, to some e x te n t, the idea
th a t the Four Powers, acting in the in te r e s t o f the United N ations,
had the rig h t to le g is la te fo r th e e n tire community of n atio n s.
The Tribunal does not make any reference to th is conceivable
source of i t s ju ris d ic tio n .
3. The provisions of the Charter annexed to the Agreement of
8 August I 9I+5 are the law applied by the T ribunal. The acts defined in
the Charter did not acquire the character of offences only by v irtu e of
the C harter; they were offences under in te rn a tio n a l law already a t the
time of. the c re atio n of the C h arter.
Uith regard to crimes again st peace, th is has been shown in great
d e ta il by the Judgment. As the le g a l b a sis fo r the punishment of
v io la tio n s of human rig h ts Which are of in te re s t in th is p a rt of the

* Cf. page 31^, Note 2.

/re p o rt,
 E/CN.WW.19
Page 3*2

re p o rt, i . e . the v io la tio n s of human rig h ts of German c itiz e n s and

G tatelecs persons, w ill ch iefly be found in the provisions of the
Charter concerning crimes ag ain st humanity, i t seemed appropriate to
examine f i r s t , whether these provisions of the C harter, are merely
d eclarato ry of in te rn a tio n a l law as i t ex isted before the execution of
the Agreement of 8 August 19^5
Crimes against humanity, as defined in A rtic le 6 (c) of the Charter
cover a cts of inhumanity, and persecution on p o l i t i c a l , r a c ia l end
re lig io u s grounds, committed w ithin the te r r it o r y of a S tate against
i t s own n a tio n a ls, whether they f a l l w ithin th e period before or
during the war.
The question whether the C harter, in so fa r as i t includes th is
type of crimes against humanity, i s "an expression of in te rn a tio n a l law,
e x istin g a t the time of i t s c re a tio n ",* is c o n tro v e rsial.
The Judgment repeatedly stre ss e s th a t the J u ris d ic tio n o f the
Tribunal is lim ited to those crimes ag ain st humanity which are connected
w ith crimes against peace or war crimes and only a tr o c itie s where the
Tribunal found s u ffic ie n t evidence fo r th is connection were talien into
account in the v e rd ic t.
I t has been said before th a t in te rn a tio n a l law authorizes every
S tate to s e t up sp ecial courts to tr y any person w ithin i t s custody who
commits war crim es, - a t le a s t i f such offences th re a te n i t s sec u rity ;
i t appears th a t th is ju ris d ic tio n comprises crimes ag ain st humanity
connected w ith crimes ag ain st peace o r war crim es. I t i s , th e re fo re ,
submitted th a t a t the time of the c re atio n of the C harter an international
b a sis ex isted fo r the J u ris d ic tio n over crimes, ag ain st humanity
connected with crimes against peace or war crimes; and th a t the trib u n al
confined i t s e l f to the ju ris d ic tio n over th is type of crimes against
humanity.
4. The core of the Nuremberg indictment is ' the common plan or conspiracy"
to commit c rimes agai n st peace (Count 1 o f th e Indictm ent). A ll defendants
wore charged with th is offence and I t I s , a t th e same tim e, th e only
offence charged against a l l of them.
In the submission o f the Indictm ent, th e measures of the Nazis
intended to promote th e ir aims f i r s t to seize t o t a l i t a r i a n control over
German;* and la te r to consolidate th e ir p o sitio n of power w ithin Germany
are to be considered os "steps d e lib e ra te ly talien to carry out the
common plan."** The d estru ctio n of the parliam entary system; the

* Judgment, page 38.

*-* Judjyaent, page *+3
/transform ation
 E/CN.WW.19
Page 3^3

transform ation of the S tates) provinces and m u n ic ip a litie s, which had

formerly exercised serai-autoiibmous powers, in to adm inistrative organs
o." the c e n tra l Government; the purge o f the c iv il serv ice; the
r e s tr ic tio n o f the independence of the Ju d iciary and th e ir being
rendered subservient to Nazi ends; the suppression of movements and
groups which the Nazis regarded as obstacles to th e ir re te n tio n of
to ta l control in Germany, such as the suppression o f the fre e trade
unions, the attem pt to subvert the influence o f the ChurcheB over the
people end in p a rtic u la r over the youth of Germany, and the persecution
of p a c if is t groups; in terferen ce w ith the educational system; the s t r i c t
control of the expression o f opinion and the dissem ination of inform ation
the system of te r r o r ag ain st opponents and suspected opponents o f the
regime, th e ir imprisonment v ith o u t Ju d icial process, th e ir d eten tio n in
concentration camps where they were subjected to degradation,
despoilment, enslavement, to rtu re and murder; the p o licy of re le n tle s s
persecution of the Jews, e tc . - a l l these v io la tio n s of civ ic and
individual r ig h ts , which served the Nazis to gain power in Germany and
to r e ta in i t , are covered by A rtic le 6 (a) of the C harter, as conceived
by the Prosecution.
This ambitious scheme of the Prococution which tr e a ts a l l v io la tio n s
of the fundamental rig h ts and freedoms of German c itiz e n s , guaranteed
by the Weimar C onstitu tio n , which can be traced back tooths Nazi regime,
as phuses in the execution of the "common plan" - th a t is as crimes
ag ain st peace which f a l l w ithin the ju ris d ic tio n of the In te rn a tio n a l
M ilitary T ribunal, - was re je c te d by the T rib u n al.
The Judgment, to o , considers the v io la tio n s of civic and in dividual
rig h ts o f German c itiz e n s as p a rt o f a p o lic y , the aim of which was to
elim inate a l l opposition; to control completely the p o litic a l and
economic l i f e of Germany; to im ite th e people in support o f the p o lic ie s
of the Nazi Government, in p a rtic u la r of th e i r policy of larg e scale
re-armament; to organize the resources of the nation so as to serve b e st
the pumo ses o f war - and thus to prepare fo r war i t s e l f . Yet in the
opinion of the Tribunal, a l l th is forms p a rt of a policy which in i t s e l f ,
is not crim inal; i t preceded the conspiracy, which is crim inal under
A rticle o (c) of the C harter, creatin g i t s p o litic a l and economic
p re -re q u is ite s; a conspiracy to be crim inal, must centre round a concrete
plan "c le a rly outlined in i t s crim inal purpose" and "not too f a r removed
from the time of decision and actio n ".*

* Judgmont, page U3 .
/Only those
 /C N .M M 9
Page 3 ^

Only those accused whose p a rtic ip a tio n in concrete plans of th is

s o rt were proved, were found g u ilty on Count 1 of the Indictm ent,
(Common Plan or Conspiracy). They were Goering, K e itel, Raeder and
Neurath, who were present a t one or more of the meetings where H itle r
disclosed h is plans of aggression ag ain st A u stria, Czechoslovakia and
Poland; Hess, whose intim ate re la tio n sh ip w ith H itle r places i t beyond
doubt th a t he knew of th is and sim ilar plans of H itle r 's though he did
not take p a rt in any of those meetings; Ribbentrop, who was involved
in the diplom atic a c tiv itie s preceding the aggression ag ain st Poland,
and Rosenberg and Jodi who p a rtic ip a te d in the planning of the attack
against Norway and Greece, Yugoslavia and Russia re sp e c tiv e ly .
On the o th er hand, P rick , fo r many years the M inister of the
In te rio r of the H itle r Regime, whose re s p o n s ib ility fo r the v io la tio n s
of civ ic and individual rig h ts of German c itiz e n s Vas esta b lish e d by
the Tribunal beyond doubt, was not found g u ilty on Count 1, as "before
the date of tho A ustrian Aggression he was concerned only w ith the domestic
adm inistration w ithin the R eich."*
The opinion of the Tribunal th a t re s p o n s ib ility fo r v io la tio n s of
human rig h ts of German c itiz e n s during the period of seizure o f power
by the NSDAP and consolidation of i t s p o s itio n in Germany cannot be
considered as p a rtic ip a tio n in a conspiracy in the meaning of
A rtic le 6 (a) of the C harter, i s , fu rth e r shown in the p a rts o f the
Judgment dealing w ith th e accused o rg an izatio n s. Also, th e p a rtic ip a tio n
of the Leadership Corps, o f the Gestapo and S.D ., and o f th e S .S ., in
v io la tio n s o f human rig h ts o f German c itiz e n s , committed before th e war,
has been proved s u ffic ie n tly . N evertheless, persons who ceased to be
members of these organizations p rio r to 1 eptember 1939 were
excluded from the groups declared crim inal.
5. An examination o f the Indictment in so fa r as i t re fe rs to crimes
against humanity committed a g ain st German c itiz e n s and S ta te le ss persons,
shows th a t only a p a rt of the v io la tio n s of human rig h ts d e a lt w ith in
Count 1 o f the Indictment have been brought under the notio n o f crimes
ag ain st humanity. The d e stru ctio n of the parliam entary system in Germany
and of the e x istin g lo c a l government in s titu tio n s , th e purge of the
c i v i l service and the ju d ic ia ry rendering them subservient to Nazi ends,
the suppression of the fre e tra d e unions, th e elim in atio n of the
influence of the churches, th e in terferen ce w ith the educational system,
the control of the expression o f opinion and the dissem ination of
inform ation, e t c . , a l l o f which are covered by Count One, remain outside
the f ie ld covered by Count U (crimes ag ain st humanity). *

* Judgment, page 99
/Crimes ag ain st
 E/CH.tyW.19
Page 3^5

Crimes against humanity (committed against German c itiz e n s ) vhich

ore c ite d in the Indictment are v io la tio n s of the in te g rity of l i f e
and body, v io la tio n s of the rig h t to l i f e and of the rig h t to personal
lib e r ty , and, to a minor ex ten t, v io la tio n s of property rig h ts . They
ere d irected against members of p o litic a l and re lig io u s groups, who
vere deemed opponents of the National S o c ia lis t Begimc, and above a l l ,
against the Jews.
The category of offences c la s s ifie d in the indictment as crimes
ag ainst humanity, was somewhat extended during the proceedings, but
the fa c t remains th a t the f ie ld o f v io la tio n s of fundamental rig h ts
and freedoms of German c itiz e n s covered by Count 1 is considerably
wider than th a t covered by Count 1 and th a t moreover, the f i r s t includes
the l a t t e r ; th a t, in other words, the v io la tio n s of human rig h ts of
German c itiz e n s which are c ite d in Count U form p a rt of those d e a lt
w ith in Count 1.
The Indictment considers acts of inhumanity and persecution on
p o l i t i c a l , r a c ia l or re lig io u s grounds, which were committed p rio r to
the outbreak of war, not le s s crimes ag ain st humanity than those
which f a l l w ithin the time of war. The connection w ith crimes w ithin
the J u ris d ic tio n of the Tribunal required by A rtic le 6 (c)* of the
Charter i s , in the submission of the Indictm ent, shown by the p o licy
from which these a tr o c itie s o rig in ate d . The Indictment stre sse s
repeatedly th a t they are to be considered as persecu tio n , rep ressio n
and exterm ination of a l l c iv ilia n s in Germany who were deemed h o s tile to
the common plan o r conspiracy described in Count 1. They are the
measures token during the period of the seizure o f power and of
consolidation of the p o sitio n o f the Nazis in Germany. I t has been
said before th a t in the opinion of th e Tribunal, these measures formed
p a rt of a policy which, in i t s e l f , was not crim inal, but created the
p o litic a l and economic b a sis fo r a conspiracy crim inal under
A rtic le 6 (a) of the C harter. The crimes ag ain st humanity re fe rre d to
in the Indictment a re , th e re fo re , merely connected w ith measures which
preceded a conspiracy in the meaning o f A rtic le 6 (a) of the Charter
as conceived by the Tribunal which, in i t s e l f , however, did not
c o n stitu te crimes against peace ( i . e . p a rtic ip a tio n in a common plan
o r conspiracy to commit crimes ag ain st peace.)
The Judgment s ta te s th a t acts of inhumanity and persecution
re fe rre d to in the indictment which wore committed before the outbreak

* Cf. pagr 329 Note 1.

/o f war,
 /CN.4/W.19
Page 3^6

of v a r, c o n stitu te crime ag ain st humanity only i f they were in connection

with any crime w ithin the ju ris d ic tio n of the Tribunal and declared,
without expressing any view on the argument of the prosecution with
respect to th is p o in t, th a t " i t has not been s a tis f a c to r ily proved
th a t they were done in execution o f or in connection with any such
crim e."*
The Tribunal declined to "make a general d e cla ra tio n th a t the acts
before 1939 were crimes ag ain st humanity w ith in the meaning o f the
C h a rte r."**
The p a rts of the Judgment dealing w ith the accused in d iv id u ally ,
mention freq u en tly under headings such as "crimes ag ain st peace",
. "war crimes and crimes ag ain st humanity" and "crim inal a c ti v itie s " ,
e t c ., acts o f inhumanity or persecution committed ag ain st German
c itiz e n s before the war.
The v e rd ic ts in the cases o f the Gestapo and S.D ., and the S .S .,
show, however, c le a rly , th a t such a tr o c itie s were not considered as
offences which f e l l w ithin the ju ris d ic tio n of the T ribunal. Persons
who belonged to the organizations only before the war, th a t i s , during
the period in which nothing but acts o f inhumanity and persecution
d irected ag ain st German c itiz e n s and S ta te le ss persons can be charged
against the o rg anizatio n s, are excluded from the groups declared
crim inal They are the persons who l e f t th e organizations p rio r to
1 September 1939 th a t i s , before the organizations became responsible
fo r war crim es, and crimes ag ain st humanity, o th er than the type
mentioned b efo re. The same p rin c ip le s were applied in th e case of the
S.A ., which the Tribunal declined to q u alify as a crim inal organization.
With regard to th e inhumane a c ts charged in the Indictment and
committed a f te r the beginning of the war, the Judgment s ta te s th a t
in so fa r as they do not c o n stitu te war crimes they c o n stitu te crimes
against humanity, as "they were a l l committed in execution o f o r in
connection with aggressive war".***
Crimes ag ain st humanity committed a g ain st German c itiz e n s and
S ta te le ss persons during the war are re fe rre d to in the Judgment in
exceptional cases only, and.none of the accused was found g u ilty on
Count k solely in view o f such o ffen ces. The opinion as to these
offences held by the Tribunal in general, however, leaves no doubt
th a t they were considered to f a l l w ithin the J u ris d ic tio n of the
Tribunal and therefore taken in to account.

* Judgment, page 65
** Judgment, page 65
*** Judgment, page 65
/B. MILITARY
 E/CK.f/vr.19
Page 3*7

B. MILITARY COURTS, MILITARY GOVERNMENT COURTS

AMD GERMAN COURTS
The ju ris d ic tio n of the In te rn a tio n a l M ilitary Tribunal Is lim ited
to Major Uar Criminals whom A rtic le 1 of the Agreement o f 8 August 19^5,
using the words o f the Moscow D eclaration of 30 October 19^3> describes
as "war crim inals whose offences have no p a rtic u la r geographical lo c atio n ."*
A broader le g a l foundation, a b a sis fo r the punishment of "war c riminal s
and other sim ilar offenders",** regardless of th e ir rank and o f th e place
where the offence was committed, i s provided by Control Council Law No. 10
dated 20 December 1SA5.
Sim ilar enactments of a llie d and former enenr S tates (other than
Germany) cover offences committed in th e i r resp ectiv e t e r r i t o r i e s o r ag ain st
th e ir own c itiz e n s . Control Council Law No. 10 does n o t, as i t were,
complementing these enactments, re fe r only to offences committed
Germany or against German c itiz e n s ; n ev erth eless, except fo r th e C harter of
th e In te rn a tio n a l M ilitary T ribunal, i t i s th e most important le g a l b a sis
f o r the punishment o f these offences which has been created since the
occupation of Germany.
Of the crimes enumerated in A rtic le I I o f Control Council Law No. 10,
only crimes ag ain st peace (A rticle I l . l . a ) , crimes ag ain st humanity
A rtic le I I . l . c ) and membership in groups or organizations declared crim inal
by th e In te rn a tio n a l M ilitary Tribunal (A rticle I l . l . d ) come under
consideration in th is p a rt of the Report. V iolations of human rig h ts of
German c itiz e n s and S ta te le ss persons have been tre a te d in th e t r i a l s which
are of in te re s t in th is connection as crimes against humanity; in one or two
indictm ents, they were brought under the heading of crimes against peace
and, as w ill be shora l a t e r , they are In d ire c tly connected w ith the crime
defined as membership in a crim inal organization.
A rtic le I I I of Control Council Law No. 10 provides th a t the occupying
a u th o ritie s have th e rig h t to cause a l l persons charged w ith a crime under
Control Council Law No. 10 to be brought to t r i a l before an appropriate
trib u n a l; and th a t, in each zone, the resp ectiv e zone commander determines
or designates the trib u n a l by which such persons s h a ll be tr ie d ; "such
trib u n a ls may, in the case of crimes committed by persons of German
c itiz e n sh ip or n a tio n a lity against oth er persons of German c itiz en sh ip or
n a tio n a lity or S ta te le ss persons, be a German court i f authorized by the
occupying a u th o ritie s".* * *

* Cf. P art I , Chapter I , B. of th e Report.

** Preamble of Control Council Law Mo. 10.
*** A rtic le I H . l . d , Control Council Law No. 10.
/A rtic le I I I o f Control
 E/CK.4/W.19
Page 343

A rtic le I I I of Control Council Lav No. 10 adds th a t none of these

provisions sh a ll impair or lim it the J u risd ic tio n of paver of any court or
trib u n a l nov or l a t e r esta b lish e d by a zone Commander in h is zone, and that
the same applies v ith regard to the In te rn a tio n a l M ilitary Tribunal.*
As a r e s u lt of th is provision, a considerable number of courts of
a d iffe re n t type, exercise a more or le ss concurrent J u ris d ic tio n over
offences re le v an t in th is connection, both in the United S tates Zone, and in
the B ritis h Zone.**
Courts which ex isted before Control Council Lav No. 10 was enacted
m-)d vhich were henceforth to exercise J u ris d ic tio n also over offences defined
by th is la v are the "M ilitary Government Courts". They were estab lish ed by
Ordinance Ho. 2, issued by the Supreme Commander, A llied Expeditionary Force,
on 18 September 1944, and they were continued fo r a period in both zones,***
a f te r the zones o f occupation had been determined. In th e B ritis h Zone they
vere later**** replaced by the so -called "Control Commission C ourts".****
The M ilit r;' Government Courts (as well as the Control Commission Courts)
have J u ris d ic tio n over " a ll offences under any proclam ation, la v or ordinance,
notice o r order issued by or under the a u th o rity o f th e M ilitary Govt******
or of the A llied F orces".******* Their J u ris d ic tio n , th e re fo re , covers the
offences defined by Control Council Lav No. 10, in p a rtic u la r crimes against
peace, crimes against humanity and membership in crim inal organizations.

* A rtic le I I I . 2 o f Control Council Lav No. 10.

** As a t p resen t s u ffic ie n t inform ation i s a v ailab le only w ith regard
to the B ritis h and United S tates Zones, th is sectio n is lim ited to
the courts in these zones o f occupation.
*** Cf. Note 3-
**** By Ordinance No. 68 dated 1 January 1947-
***** The Control Commission Courts d if f e r f-om the M ilitary Government
Courts mainly in th e ir composition: th e members of the l a t t e r are
o ffic e rs of the a llie d forces (A rticle IV.4, Ordinance No. 2, df.
l a t e r amendments, in p a rtic u la r U.S. Amendment to M ilitary Government
Ordinance No. 2 o f 30 January 1946 and B ritis h Ordinance No. 27 of
30 March 1946); judges o f the Control Commission Courts may be
c iv ilia n s . A Judge o f a Control Commission Court of higher standing
( i . e . the Court of Appeal and High C ourt), must be q u a lifie d to
p ra c tic e as an advocate or a s o lic ito r in an y .p art of th e B ritish
Empire, o r must have held ju d ic ia l o ffic e th e re in (A rticle IV,
Ordinance No. 68), wherees no le g a l q u a lific a tio n is required for the
appointment o f a judge to a M ilitary Government Court.
****** Or a f te r i t s establishm ent on 30 August 1945 issued by o r under the
a u th o rity o f the A llied Control Council fo r Germany.
****** A rtic le I I . 2 .b , Ordinance No. 2; c f. A rtic le 111.3-13, Ordinance No. 6.
enacted fo r the B ritis h Zone-
/The same offences

I
 E/CN.VW.19
Page 3^9

The sane offences are subject to the J u ris d ic tio n of the "M ilitary
T ribunals", which were s e t up in the United S tetes zone a f te r Control Council
Law No. 10 had been issued. Pursuant to A rtic le I of Ordinance No. 7* by
which they were e sta b lish e d , M ilitary Tribunals have th e "power to tr y and
punish persons charged with offences recognized as crimes in A rtic le I I of
Control Council Law No. 1 0 ..." . Their Ju ris d ic tio n , does n o t, however,
prejudice "the J u risd ic tio n o r the powers of other courts e stab lish ed or which
may be e stab lish ed fo r the t r i a l o f such offences".
The Genian courts could not apply Control Council Law No. 10
immediately a f te r i t s enactment because by v irtu e of Law No. 2, issued by
the Supreme Commander, /tille d Expeditionary Force, on 18 '"September, 1 9 ^ ,
"cases involving offences against any order of th e a llie d forces or any
enactment of M ilitary Government o r involving the con stru ctio n o r v a lid ity
o f any such order or enactment", (A rticle V l.lO .d) Were placed outside th e ir
Ju risd ictio n .* *
Law No. 2 remained in force a f te r the zones had been estab lish ed ; la te y
i t was amended, both in the B ritis h and the United S ta te s zones o f occupation.
In the United S tates zone, cn In stru c tio n issued as e a rly as
12 January 1946*** deals with the J u ris d ic tio n o f ordinary German courts over
German c itiz e n s charged w ith crimes ag ain st humanity committed against
German c itiz e n s o r S ta te le ss persons. This In stru c tio n provides th a t
German courts w ill "perform the duty of bringing to Ju stic e Germans or oth er
non-United Nations n atio n als oth er than major war crim inals accused of
crimes ag ain st humanity, where such crimes are offences ag ain st the lo c a l law
and where the victim s o f the crimes are o f German o r o th e r non-United Nations
n a tio n a lity " .
I
The above-mentioned /a rtic le V l.lO .d. o f M ilita ry Government Law No. 2
tos modified by Amendment No. 2 to th is law.**** Also, A rtic le VI of
M ilitary Government Law No. 2, as amended, provides th a t "except when
expressly authorized . . . no German court s h a ll a s s e rt or exercise
Ju risd ictio n " in te r a l i a , "in cases involving offences ag ain st any order
of the A llied Forces o r any enactment o f th e Control Council o r M ilitary
Government"; on the other hand, cases "involving the con stru ctio n o r v a lid ity
of any such order or enactments" were no longer outside th e ir J u risd ic tio n .

* The Ordinance became e ffe c tiv e on 10 October 1946.

** Pursuant to A rtic le VI, Law No. 2, "German Courts w ithin the occupied
te r r ito r y " may a ss e rt or exercise J u risd ic tio n in cases of th is type
only "when expressly authorized by M ilitary Government".
*** L e tte r, Hr, USFET, dated 12 January 1946, A.G. 014.1, GEC-AGO,
Subject: "Amendment to D irective "Administration of M ilitary Government
in the Uhited S tates Zone in Germany, 7 th , July 19^5"*
**** "Amendment No. 2 to M ilitary Government Law No. 2" became e ffe c tiv e on
15 October 1946.
/From th is
 E/CN;4/W.19
Page 350

From th is i t was concluded that, the German courts were now empowered "to
apply the provisions of Control Council Lav No. 10 in a l l cases which have
"been properly brought before them, th a t i s , where the alleged crime against
humanity is liheirise an offence ag ain st German law and was committed by a
German o r non-United Nations n a tio n a l ag ain st Germans o r persons of
non-hited Nations n a tio n a lity " .*
Consequently even a f te r th e enactment of Amendment No. 2 to M ilitary
Government Law No. 2, German c o u rts, unless s p e c ific a lly authorized, were
prevented from .exercising ju ris d ic tio n over those crimes ag ain st humanity
(committed against German c itiz e n s or S ta te le ss persons) which did not
c o n stitu te an offence under German law.
In th e B ritis h Zone f i r s t Ordinance No. 20 of 1 January 1946,
s tip u la te d th a t "M ilitary Government may . . . confer upon the German courts
J u ris d ic tio n to tr y offences ag ain st any M ilitary Government enactment or
against any provision of any such enactment". (A rticle 1.1 of the Ordinance).
A rtic le I I . 3 .d of the same Ordinance provides th a t such J u ris d ic tio n sh a ll not
be exclusive but concurrent w ith th a t o f M ilitary Government C ourts.
A rtic le V l.lO .d of M ilita ry Government Law No. 2 was amended by
Ordinance No.9** of l6 A pril 19^-6. A rtic le I of the l a t t e r Ordinance provides
in a sim ila r way to th e corresponding amendment issued in th e United States
zone - th a t "except whan expressly authorized by M ilita ry Government, no
German court w ithin the occupied te r r it o r y s h a ll a s s e rt or exercise Jurisdiction
I n te r a ll l a "canes involving offences ag ain st any enactment o f th e Control
Council o r M ilita ry Government o r any order of th e A llied Forces where such
enactment o r order does not expressly grant J u ris d ic tio n to th e German courts
in re sp ec t o f offences a g ain st i t " .
F in a lly , w ith reference to A rtic le I l l . l . d , o f Control Council Law
No. 10,*** Ordinance No. 47 o f 30 August 1946 authorized th e ordinary German
courts to exercise ju ris d ic tio n "in a l l cases o f crimes ag ain st humanity as
defined by A rtic le I I , paragraph l . c . o f Control Council Law No. 10,
committed by persons c f German n a tio n a lity against o th er persons o f German
n a tio n a lity or S ta te le ss persons".

* L e tte r of the O ffice o f M ilita ry Government fo r Bevaria dated

Ip September 1947 - AG.014.1, MG3.LGC, Subject: "T rial by German Courts
o f crimes against humanity".
** Ordinance No. 29 as well as the United S tates Amendment No. 2 to
M ilitary Government Law No. 2 are based on Control Council Lav No. 4
dated 30 October 1945-
*** Cf. page above.
/ i n the United States
 e/ cn.U/w.19
Page 351

In the Itotted S tates zone, the J u ris d ic tio n of th e German courts over
crines against humanity is concurrent v ith th a t of the M ilitary Government
Courts* and the M ilitary Tribunals** and in th e B ritis h Zone, v ith the
ju ris d ic tio n of the Control Commission Courts.**
A rtic le 10 of the Charter annexed to the Agreement of 8 August 19^5
s tip u la te s th a t "in cases where a groip o r organization is declared crim inal
by the T ribunal, the competent n atio n al a u th o rity of any signatory s h a ll
have the rig h t to bring individuals to t r i a l fo r membership th e re in before
n a tio n a l, m ilita ry o r occupation c o u rts."
As sta te d above, cases of th is type f a l l w ithin th e J u ris d ic tio n of
M ilita ry Government Courts and Control Commission Courts re sp ec tiv e ly and
ore fu rth e r subject to the J u risd ic tio n o f th e M ilitary Tribunals.****
In the United S tates Zone, Tribunals were esta b lish e d by th e "Law
fo r L iberation from N ational-Socialism and M ilitarism " o f th e Land Governments
f o r B avaria, G reater Hesse and Wrttemberg-Baden, dated 5 March 19^6. The said
Tribunals were to c la s s ify persons "who have a c tiv e ly supported the N ational-
S o c ia lis t tyranny, o r are g u ilty of having v io la te d p rin c ip le s o f Ju stice
and humanity or of having s e lf is h ly exploited th e conditions thus created",*****
according to the categories defined by th is Law and to impose th e sanctions
prescribed th e re in . ****** A fter the term ination of th e f i r s t Nrnberg t r i a l ,

* Cf. page e t seq.., above.

** Cf. page 3^9 above.
*** Cf. page 3^7, note 6, above.
**** M iliter;' Government Courts and Control Commission Courts have
d e a lt v ith ,su c h cases only exceptionally, i f a t a l l . The
indictm ents submitted to the M ilitary Tribunals charged
the accused in appropriate cases w ith membership in crim inal
organizations in additio n to oth er crimes.
***** A rtic le 1 o f the "Law fo r L ib eratio n from N ational-Socialism and
M ilitarism ".
****** A rticle 2U.1 of the la v fo r L ib eratio n .

/th e se trib u n a ls
 E / cr.U/w.19
Page 352

th e se trib u n a ls* were en tru sted w ith the t r i a l s o f members o f crim inal
o rg an izatio n s.**
In the B ritis h Zone, the t r i a l and punishment of members of crim inal
organizations iras en tru sted by Ordinance No. 69 o f 1 November 191:6*** to
"German T ribunals", the so -c alle d Spruchkammern* esta b lish e d simultaneously.****
The preparation of cases ag ain st members of crim inal organizations and
th e ir prosecution i s the re s p o n sib ility o f C entral German Legal A uthority for
the B ritis h Zone,***** the so -c alle d C entral Legal O ffic e .******
1. J u ris d ic tio n
I t has been shown in the preceding sectio n th a t in the United S tates Zone
of Control in Germany, crimes against peace, crimes ag ain st humanity and the
crime of membership in crim inal o rg an izatio n s, as they are defined in Control
Council Law No. 10, f a l l w ithin the ju ris d ic tio n o f "M ilitary Government Courts"
and "M ilitary Tribunals"; th a t in the B ritis h Zone the same crimes f a l l within
the J u ris d ic tio n of the Control Commission Courts, which in th is zone replaced
the M ilitary Government courts; th a t in both zones concurrent ju ris d ic tio n

* The United S tates a u th o ritie s are in doubt whether th ese trib u n a ls

ought to be considered as courts of lav . These doubts a ris e mainly
in view of A rtic le 22 of the Law fo r L iberation which provides th a t
crim inal offences by "N atio n al-S o cialists o r M ilita r is ts especially
"war crimes and other offences which have remained unatoned under the
National So-iuL ist ty ra n n y " ,. . .may be crim in ally prosecuted
independently of th is law" and th a t "proceedings under th is law shall
not bar prosecution under crim inal law f o r th e same offence". - On the
other hand i t must be noted th a t th e members o f the Tribunals are
"independent and subject only to th e law" (A rticle 27-1 of th e Law for
L iberation) and th a t the Tribunals are authorized and obligated "to
decide on a l l cases w ithout being bound by previous decisions o f other
agencies" (A rticle 31*1 of the Law fo r L ib eratio n ): In oth er words,
unlike those o f adm inistrative a u th o ritie s , th e T ribunals decisions
are not subject to in stru c tio n s from a u th o ritie s superior to them; the
"M inister fo r P o litic a l L iberation" exercises only adm inistrative
supervision over th e Tribunals (A rticle 27*3 o f th e Law fo r Liberation).
The T ribunals' decisions a re , however, subject to th e co n tro l and
supervision which, pursuant to A rtic le V II.12 of M ilitery Government 1
No. 2 I s exercised over th e decisions of a l l German Courts. I t may,
th e re fo re , be ju s tif ia b le to c la s s ify these trib u n a ls as c o u rts, that is
as sp ecial c o u rts. I t should be added th a t In "in imposing sanctions"
under the Law fo r L ib eratio n , the Tribunals may take in to account
"pen alties imposed in crim inal proceedings fo r th e same a c t" .
(A rticle 22.2 of the Law fo r L ib eratio n ).
** L e tte r of th e O ffice o f M ilitary Government fo r Germany (United States)
dated 9 A pril 19^7, AG.010. ( i . A. ) Subject: T ria l of Members of
Criminal Organizations under th e Law fo r L iberation.
*** Ordinance No. 69 became e ffe c tiv e on 31 December 19^6*
**** A rtic le 1.1 o f Ordinance No. 69.
***** A rtic le IV. 8 o f Ordinance No. 69.
****** E stablished by Ordinance No. h-1 o f 1 October 19^6.
/over crimes
 E/CN .V w.19
Page 353

over crimos against humanity, so f a r as they are d irected against German

c itiz e n s and S ta te le ss persons, i s exercised hy the ordinary German Courts;
and th a t in both zones German Special Tribunals are en tru sted with the t r i a l s
of members of organizations declared crim inal.
The M ilita ry Government Courts were estab lish ed during th e i n i t i a l
stage of th e occupation of Germany. Proclamation No. 1 o f 18 September 1 9 ^
declared th a t "supreme le g is la tiv e , ju d ic ia l and executive a u th o rity and
powers w ithin the occupied te r r ito r y are vested" in General Eisenhower "as
Supreme Commander of the A llied Forces and as M ilitary Governor and (th a t)
the M ilitary Government is estab lish ed to exercise these powers (under h is )
d ire c tio n s " .*
Ordinance No. 2, by which the M ilitary Government Courts were
e sta b lish e d , was issued on the same day, pursuant to the powers under
Proclamation No. 1.
The M ilitary Government Courts were estab lish ed under the ru le s of
in te rn a tio n a l laV which permit an occupying power to replace the ordinary
courts o f the occupied t e r r i t o r y by i t s own m ilita ry courts.#*
The J u ris d ic tio n of the M ilitary Government Courts thus estab lish ed
is derived from the rig h t of every occupying power to adm inister law in
occupied t e r r it o r y , and is subject to the lim ita tio n s which are imposed by
in te rn a tio n a l law upon the ju ris d ic tio n of an occupying power.
The b a sis o f the J u ris d ic tio n of the M ilitary Government Courts was,
however, modified by the B erlin D eclaration of 5 June 19^5*** and by the
subsequent establishm ent o f the zones of occupation.
A fter the Governments of the United S ta te s , the United Kingdom and the
Union of Soviet S o c ia lis t Republics and the Provisional Government of the
French Republic had assumed "supreme a u th o rity with resp ect to Germany", i t
was announced by Proclamation No. 1 - M ilitary Government, Uhited S tates Zone,
dated 1^ July 19^5 - th a t in the l a t t e r Zone a M ilitary Government had been
established under the a u th o rity of the Commanding General, Uhited S tates
Armed Forces in Europe,**** orders issued by o r under the au th o rity of the
Supreme Commander, A llied Expeditionary Force remained in force u n til revoked
or modified; "in applying such orders now outstanding w ithin th is Zone, a l l
references to Supreme Commander, A llied Expeditionary Force and to A llied
M ilitary A uthorities s h a ll be construed as re fe rrin g from th is date forward

* Proclamation No. 1, Section I I .

** C f. L. Oppenheim, In te rn a tio n a l Law, Volume I I . (6th E d itio n , rev ised ,
ed ited by H. Lauterpacht) London, 1 9 ^ , page 3^8, e t seq.
*** Cf. page 312 e t seq. above.
**** United S tates Proclamation No. 1, Section I I .
/to the Commanding
F/CN.4/W.19
Page 354

to the Commanding General, United S ta te s Armed Forces In Europe, to the

Armed Forces of th e United S ta te s in Germany and to th e United S tates
M ilita ry A uth o rities in Germany re sp ec tiv e ly ."*
F in a lly , Proclamation of 30 August 194*** announced the establishment
o f th e Control Council and conferred upon i t "supreme a u th o rity in
m atters a ffe c tin g Germany as e whole".*** Tho Proclamation declared th et
any orders issued under th e a u th o rity of the Commanders in Chief, fo r
th e ir resp ectiv e zones of occupation, vere continued in force.****
The ju ris d ic tio n of the M ilita ry Government Courts is th erefo re
no longer based on th e a u th o rity and power of th e Supreme Commander,
A llie d Expeditionary Force. These courts a re , a t p resen t, th e ju d ic ia l
agencies of th e M ilita ry Governments of th e ir re sp ec tiv e zones.
Moreover, th e ir J u ris d ic tio n i s no longer subject to th e lim ita tio n s
imposed on an occupying Power. The source of th e i r J u ris d ic tio n is now
the sovereignty of th e four A llied Powers over Germany.*****
The p o sitio n of th e M ilitary Tribunel3 s e t up in the United S tates
Zone i s sim ila r. I t has been expressly said of them****** th a t they were
e sta b lish e d "pursuant to th e powers of th e M ilita ry Governor fo r the
United S tates Zone of Occupation w ith in Germany and fu rth e r pursuant
to the powers conferred upon the Zone Commander by Control Council Law
No.10******* and A rtic le s 10 and U******** of the Charter of the
In te rn a tio n a l M ilita ry T rib u n al.. . . "
For the same reasons the Control Commission Courts, e stab lish ed in
th e B ritis h Zone, mai- assume a J u ris d ic tio n which i s not subject to the
lim ita tio n s of the J u ris d ic tio n exercised by an occupying Power.

* United S tates Proclamation N o.l, Section I I I ; sim ila rly the

B r itis h Ordinance No.4 of the same date declares "th a t on
14 July 1945, the Commander-in-Chier of th e B ritis h Zone of Contre!
assumed a l l a u th o rity and power th e re to fo re possessed and exercise'
by the Supreme Commander, A llied Expeditionary Force w ithin the
B ritis h Zone." Hero to o , orders previously iesued remained in
force fo r the tin e being and were based from th a t date onwards on
the a u th o rity of the Commander-in-Chief of tho B r itis h Zone of
C ontrol.
** Control Council Proclamation N o.l.
*** Control Council Proclamation U o.l, Section I I .
**** Control Council Proclamation N o.l, Section I I I .
***** Cf. page 312 e t seq. above.
****** A rtic le I I of Ordinance No.7.
******* Cf. page 347 above, e t seq.
***** Cf. page 352 above.
/F in a lly ,
 E/CN.U/W.19
Page 355

F in a lly , the German courts which are of in te r e s t in th is p a rt of

. the Iteport are also subject to the sovereign powers of the Control
Council mid the M ilita ry Governor of th e ir resp ectiv e Zones.*
2. The Law Applied
Control Council la v Ho.10 concerning the "punishment of persons
g u ilty of vor crimes, crimes against peace and against humanity"**
defines crimes g ain st peace (A rticle I I . 1 . a) and crimes against humanity,
(A rticle I I . l . c . ) in a sim ila r way*** to A rtic le s 6(a) and (c) of the
Charter of the In te rn a tio n a l M ilitary Tribunal. Pursuant to A rtic le s
9 and 10 of the C harter, Control Council Law Ho.10 d eals, in ad d itio n ,
with the crime of "membership in categories of a crim inal group or
organization declared crim inal by th e In te rn a tio n a l M ilita ry Tribunal",
(/article I l . l . d ) .
The provisions of substantive law contained in Control Council Law
Ho.10, fu rth e r ley down the punishment which may be imposed fo r crimes
defined by th a t Lav. (A rticle 1 1 .3 .) They deal also with the re s p o n sib ility
of a Head of S tate or responsible o f f ic ia ls of Government Departments
(A rticle I I . 4 .a) and w ith the defence of superior order (A rticle II.l.b),****
said f in a lly w ith questions concerning th e s ta tu te s of lim ita tio n ,
immunity, pardon and amnesty (A rticle I I . 5).*****
Control Council Lav Ho.10 vas intended, in te r a l i a , "to give e ffe c t
to . . . th e London Agreement of 8 August 19^5, and th e Charter Issued
pursuant th e re to " , and in A rtic le I i t made th e Agreement of 8 August 19^5
an in te g ra l p a rt of th is Lav. I t has been said****** th a t by Control
Council Lav Ho.10, provisions of in te rn a tio n a l la v - namely tho provision

* The German courts and th e ir control by M ilitary Government

re sp ec tiv e ly ere d e a lt v ith by M ilita ry Government Lav Ho.?: of
lO September 19^4, Control Council Proclamation Ho.3 of
20 October I 945, Control Council Lav No.4 of 30 October 19^5,
B r itis h Ordinance Ho. 29 of 16 A pril lk 6 and United S tates
Amendments Hoc. 1 and 2 to M ilita ry Government Lav Ho.2 of
2 March and I 5 A pril 19t , re sp e c tiv e ly .
** Enacted on 20 December 19^5.
*** Ac to d ev iatio n , c f . page 35^ belov.
**** A rtic le I I . a end b . of Control Council Lav Ho.10, correspond v ith
A rtic le s 7 and 0 re sp ectiv ely of the Cliarter of the In te rn a tio n a l
M ilita ry Tribunal.
****** The te x t of A rtic le I I . 5 of Control Council Lav Ho.10 nuis as fo llo v s:
"In each t r i a l or prosecution fo r a crime h erein re fe rre d
to , the accused sh a ll not bo e n title d to the b en efits of any
s ta tu te or lim ita tio n in respect of the period from
30 January 1933 to 1 July I 945, nor s h a ll any immunity, pardon
or amnesty granted under th e Nazi regime be admitted as a bar to
t r i a l or punishment."
****** Schvexzeriberger, O p.cit, pace 335, Ho.21.
/o f substantive
of substantive law contained in the Agreement of 8 August 19^5, and
in tho Charter annexed to i t - were transformed in to German municipal
law.
However th a t may ho, th ere i s no doubt th a t Control Council law
Ho.10, in substance, is to be considered as municipal law. I t was
issued in exercise of th e sovereign le g is la tiv e power which th e Four
A llie s had assumed w ith resp ect to Germany, in v irtu e of th e B erlin
D eclaration of 5 June liA 5, and i t was enacted by the Control Council
fo r Germany upon which, by the Proclamation of 30 August l45, these
powers had been conferred "in m atters a ffe c tin g Germany as a whole."*
I t i s , in other words, a le g is la tiv e a ct of the Control Council as the
le g itim a te successor of the l a s t German Government.**
I t lias already been pointed out*** th a t only those crimes against
humanity f o i l w ithin tho J u ris d ic tio n of th e In te rn a tio n a l M ilitary
Tribunal which were committed "in execution of or in connection with
any crime w ith in the ju r is d ic tio n of th e tribunal"**** (th a t i s , in
connection w ith crimes against peace o r war crim es). I t 1ms been
submitted th a t only th is type of crimes ag ain st peace is covered by the
concept of -universality of J u ris d ic tio n over war crimes,***** and th a t
th e remaining crimes against humanity are l e f t exclusively to domestic
ju ris d ic tio n .
The J u ris d ic tio n of the courts and trib u n a ls which apply Control
Council Law Ho.10, r e s ts on the sovereignty over Germany which th e four
A llied Powers have assumed. Law Ho.10 was enacted by the Control
Council, the supremo a u th o rity in Germany. I t is municipal law, not
in te rn a tio n a l law lik e th a t embodied in the Agreement of 0 August 19^5
and in the C harter of the In te rn a tio n a l M ilitary Tribunal.

* Cf. page 395 above.

** . Kelsen, th e Legal S tatus of Germany According to the Declaration
of B erlin - The American Journal of In te rn a tio n a l law, Volume 39
( l 9^5) page e t seq,
*** Cf. page 31^ end page 31; e t seq. above.
**** A rtic le 6(c) of the Charter of the In te rn a tio n a l M ilita ry
T ribunal.
***** Cf. page 31^ note 2.

/The J u ris d ic tio n

 E/CN.yw.l9
Page 357

The J u ris d ic tio n of these coxirts and trib u n a ls with resp ect to
crimes against humanity i s , th e re fo re , not lim ited in the same way as
the ju ris d ic tio n of the In te rn a tio n a l M ilitary Tribunal. Control
Council Law No.10 sim ila rly to A rtic le 6(c) of the Charter defines as
crimes aGP.inst humanity, a tr o c itie s and offences committed against any
c iv ilia n population, or persecutions on p o litic a l, r a c ia l or re lig io u s
grounds, whether or not in v io la tio n of the domestic lav of the country
where p erp etrated ;* deviating from th e C harter, i t includes, however,
both crimes against humanity committed in connection with crimes
against peace, or w ith war crimes, and those where no such connection
can bo shown.
Consequently the ju ris d ic tio n of the previously mentioned m ilita ry
and occupation courts as w ell as the German co u rts, extends to crimes
against humanity which were committed (against German c itiz e n s and
S ta te le ss persons) before the war and did not f a l l w ithin the J u ris d ic tio n
of the In te rn a tio n a l M ilitary Tribunal.
In the United S tates zone, i t was sta te d expressly, as early as the
beginning of 19I 6** th a t the e x istin g lim itatio n s* * * of the ju ris d ic tio n
of the German courts did not exclude th e ir ju ris d ic tio n over crimes against
humanity committed by Germans against German c itiz e n s and, S ta te le ss
persons, end c o n stitu tin g offences under German Law.****
To mal;e them accessible to German Courts in th e United S tates
Zone, which were a t th a t time prevented from applying M ilitary Government
enactments,***** th e contents of Control Council Law No.10 concerning
crimes a ca in st humanity were re-enacted****** in a Law of th e Land
Governments fo r G reater Hesse, Uurttemberg-Baden and B avaria.*******
This "Law Concerning the Punishment of N atio n al-S o cialist Crimes"
deals w ith "acts of violence and persecution on p o litic a l, r a c ia l or

* A rtic le IX .l.c . of Control Council Law No.10.

** Cf. page 350 Note 1.
*** Cf. page 3^9 e t seq,
**** Also th e J u ris d ic tio n of th e German courts in the B ritis h Zone has
a t a l l times covered th is type of crimes against humanity.
***** Cf. page 3^9 above.
****** An id e n tic a l la v was la te r enacted fo r the Land Bremen.
******* Id e n tic a l laws were enacted by each Land Government on 1 May 19^6
w ith e ffe c t from 15 June 19^6, pursuant to the le g is la tiv e
powers granted to these Land Governments by th e United S tates
Proclamation Iio.2 dated 19 September 19^5*
/ a n ti-re lig io u s
E/CN.yvM 9
Pago 358

a n ti-re lig io u s grounds, th a t have gone unpunished under the N ational-

S o c ia lis t tyranny fo r p o litic a l, r a c ie l or a n ti-re lig io u s reasons"
(A rticle I of the Law). I t provides th a t "prosecution s h a ll not he
barred because th e a c t in question has a t any tin e by a law, a decree,
an ordinance or order of the N atio n al-S o c ia list Government or of one
of i t s perons in power, been declared exempt from punishment or a fte r
i t s cctxd.esion t o be deemed law ful . . . " (A rticle I I of the Law.)* The
Law of 1 May 1946 also contains provisions w ith regard to s ta tu te s
of lim ita tio n , immunity, pardon or amnesty, sim ila r to those of
A rtic le I I . 5 of Control Council Law No.10.**
The in te rp re ta tio n given by th e United S ta te s a u th o ritie s to
Amendment No.2 of M ilita ry Government Law No.2 (of 15 October 1946)
eventually enabled the German Courts to apply Control Council Law
No.10 in cases of crimes ag ain st humanity committed ag ain st German
c itiz e n s and S ta te le ss persons and c o n stitu tin g an offence under
German Law.***
The J u ris d ic tio n of th e German Courts in the B ritis h Zone, over
crimes against humanity against Germen c itiz e n s and S ta te le s s persons
is based on Ordinance No.47 c f 30 August 1946.**** The German Courts
ex ercisin g th is J u ris d ic tio n apply th e provisions of substantive law
o f Control Council Law Ho.10.***** A rtic le I I of the Ordinance moreover,
provides th a t in cases of crimes against humanity which c o n stitu te
offences under German law, "the charge against th e accused may be
fremed in th e a lte rn a tiv e and the provisions of A rtic le I I , paragraph 5
of Control Council Law No.10****** s h a ll apply m utatis mutandis to the

* Hie d e fin itio n of Control Council Law No.10: " . . . whether or not
in v io la tio n of the domestic laws of th e country where perpetrated"
covers a wider f ie ld since i t includes a c ts fo r which no penal
sanction was provided a t the time they were committed. The
p ra c tic a l sig n ifican ce of t h i s d is tin c tio n is apparent in cases
of denunciation which are t r i e d and punished under Control Council
Law No.10 to vhich, however, as e ru le , th e Law of 1 May 1946,
does not apply.
** Cf. page 356 Note 2,
*** Cf. page 349 e t seq, in p a rtic u la r page 450 Note 3. The practica*
e ffe c t of th is development could only be demonstrated by a minute
in v e stig a tio n in to the d ifferen ces between Control Council Lav No.10
and the Law of 1 May 1946, which would go beyond th e scope of this
R eport.
**** Cf. page 350 above.
***** Cf. A rtic le 1.2 of th e Ordinance No.47.
****** Cf. page 356 Note 2.

/offence
 e /CN.1+/W.19
Page 359

offence undr ordinary German law";*

Cases of membership in organizations declared crim inal by the
In te rn a tio n a l M ilita ry Tribunal are l e f t , as a ru le , in both zones of
occupation, to German Special Tribunals.**
In the United S ta te s zone, these Tribunals apply the "Law fo r
L iberation from N ational Socialism and M ilitarism " of 5 March 19^6***
enacted by th e Lend Governments of B avarie, G reater Hesse and
Wrttemberg-Baden;**** the corresponding Special Tribunals estab lish ed
in the B ritis h Zone, apply the B ritis h Ordinance No.69.*****
3. Summary
To summarize:
(i) V iolations of human rig h ts of German c itiz e n s and S ta te le ss
persons so f a r as they c o n stitu te crimes against peace (th at
Is , conspiracy to commit crimes against peace) or crimes
against humanity w ithin th e meaning of Control Council Law
No.10, f a l l , in the United S tates Zone of Occupation, w ithin
the J u ris d ic tio n of th e "M ilitary Government Courts" and
"M ilitary Tribunals"; in the B ritis h Zone of Occupation,******
w ithin th e J u ris d ic tio n of the Control Commission Courts which,
in th is zone, replaced th e M ilitary Government Courts. In
both zones, crimes against humanity committed against German
c itiz e n s and S ta te le ss persons are subject to the concurrent
J u ris d ic tio n of the ordinary German Courts.
The crime of membership in organizations declared crim inal
by th e In te rn a tio n a l M ilita ry Tribunal, which can also be brought
in to re la tio n w ith v io la tio n s of human rig h ts of German c itiz e n s

* Also M ilitary Government Courts (c f. page 3^9 e t seq .) and Control

Commission Courts [ c f . page 3 ^ note 5 and note 6. ) , exercise
J u ris d ic tio n over a l l offences under the laws of the occupied
te r r i t o r y or of any p e rt thereof". (A rticle I I . c of the Ordinance
No. 2 of 1 September 19^5, and sim ila rly A rtic le I I I .c of the
B ritis h Ordinance No.68 of 1 January 19^7) Whether and to what
extent in cases of crimes against humanity German law has been
applied by these courts besides Control Council Law No.10, can
only be shown by an examination of th e cases tr ie d .
** Cf. page 352 e t seq.
*** Cf. page 356 note 6.
**** c f. page 352 e t ceq, in p a rtic u la r page 353 note 1 and the l e t t e r
of the C ifice of M ilitary Government fo r Germany (United S tates)
of 9 A pril 19^7, quoted th e re .
***** Cf. page 353 above.
****** Cf. page 3W note 2.
/and S ta te le ss
e / cn.U/w.19
Page 360

and S ta te le ss persons, f a l l s likew ise under th e J u risd ic tio n

of the M ilita ry Government Courts, Control Commission Courts
and M ilita ry T ribunals. Apart fro n a comparatively small
number of cases which have been included in th e Indictments
submitted to the M ilita ry T ribunals, these cases a re , however,
d e a lt w ith by German Special T ribunals.
(ii) At th e o u tse t, th e J u ris d ic tio n of the M ilita ry Government
Courts re s te d upon the "supreme le g is la tiv e , Ju d ic ia l and
executive au th o rity and powers vested in General Eisenhower
as Supreme Commander of th e A llied Forces and as M ilitary
Governor". (Proclamation Uo.l of 18 September I 9WO. They
were M ilita ry Courts of an Occupying Power; th e ir Ju risd ic tio n
was subject to th e lim ita tio n s which in te rn a tio n a l law imposes
on th e J u ris d ic tio n of an occupying power. The b a sis of th e ir
ju ris d ic tio n , however, underwent some change when the
Governments of th e United S ta te s, United Kingdom, Union of
Soviet S o c ia lis t Republics and th e Provisional Government of
the French Republic assumed "supreme a u th o rity w ith resp ect to
Germany" (B erlin D eclaration of 5 June 19^5), when zones of
occupation were created (United S ta te s Proclamation No.l and
B ritis h Ordinance No.4 of l4 Ju ly 19^5), and when eventually
the Control Council was e stab lish ed (Control Council
Proclamation H o.l of 30 August 19^5). Since then th e Jurisdiction
of th e M ilita ry Government Courts has no longer re s te d on the
a u th o rity end powers of the Supreme Commander, A llied
Expeditionary Force, but on those of the M ilita ry Governors
of th e ir resp ectiv e zones; the source of th e ir J u ris d ic tio n
has been the sovereignty of th e f^o r A llied Powers over Germany,
and th e ir J u ris d ic tio n has ceased to be subject to the
lim ita tio n s by which an occupying power i s bound.
The' b a sis of th e ju ris d ic tio n of the Control Commission
Courts esta b lish e d by B ritis h Ordinance No.68 of 1 January 19^7
and of the M ilita ry Tribunals se t up by the United S tates
Ordintnce Ho. 7 of l8 October I 9U6, is th e same.
Moreover, the German courts and trib u n a ls in question are
in th e l a s t re s o rt subject to th e sovereign powers exercised
by th e Control Council and the M ilita ry Governor of th e ir
re sp ec tiv e zones.
(iii) The Control Council law Ho.10 dated 20 December 19^5, which in
cases of crimes against peace and membership in organizations
/d eclared
 E/CH.I*/w. 19
Page 361,

declared crim inal "by th e In te rn a tio n a l M ilitary Tribunal and in

p a rtic u la r in cases of crimes against humanity is applied by the
above-mentioned co u rts, was enacted by th e Control Council, the
supreme a u th o rity in Germany. Unlike th a t embodied in the
Agreement of 8 August 19^5, and the Charter of th e In te rn a tio n a l
M ilita ry Tribunal, i t is not in te rn a tio n a l law, but municipal law.
German courts in the B ritis h zone apply in cases of crimes
against humanity, both Control Council Law No.10 and the Gorman
Criminal Code; tho Tribunals dealing with cases of membership in
crim inal organizations, apply Ordinance No. 69 of 1 November 19^6
enacted by the M ilitary Government of th e ir zone. The German
courts in the United S tates Zone tr y and punish cases of crimes
against humanity and membership in crim inal organizations under
laws enacted by the Land Governments fo r G reater Hesse,
Wrttemberg-Baden end Bavaria, pursuant to th e le g is la tiv e
powers granted by United S tates Proclamation No.2.
(iv ) Only those crimes ag ain st humanity which were committed 'in
execution ctf or in connection w ith any crime w ithin the
ju r is d ic tio n of the Tribunal" (th a t i s , in connection with
crimes against peace or war crimes) are subject to th e
J u ris d ic tio n of th e In te rn a tio n a l M ilita ry T ribunal. I t is
submitted th a t th is type of crime against humanity alone is
covered by the concept of u n iv e rs a lity of J u ris d ic tio n over war
crimes and th a t th e remaining crimes against humanity are l e f t
exclusively to domestic ju ris d ic tio n .
The courts re fe rre d to above are municipal co u rts; th e ir J u ris d ic tio n
r e s ts on th e sovereignty over Germany which th e four A llied Powers have
assumed. The law applied by these Courts i s not th e in te rn a tio n a l law
of the Agreement of 8 August 19^5 and th e Charter of th e In te rn a tio n a l
M ilita ry Tribunal, but municipal law. Their J u ris d ic tio n th erefo re
is not subject to the same lim ita tio n s as th a t of the In te rn a tio n a l
M ilita ry T ribunal.
Correspondingly crimes egainst humanity, as defined by Control
Council Law No.10 and sim ilar laws enacted by the previously mentioned
Land Goverrjnents, unlike A rtic le 6(c) of th e Charter of the In te rn a tio n a l
M ilita ry T ribunal, include both types of a tr o c itie s and persecutions,
those connected w ith crimes against peace or war crimes, and others
in regard to which such connection cannot be shown.
The J u ris d ic tio n of the courts in question th erefo re covers crimes
against humanity d ire c ted against German c itiz e n s and S ta te le ss persons
committed before the war which, as a ru le , f a l l outside the J u ris d ic tio n
of the In te rn a tio n a l M ilita ry T ribunal. /CHATEP I I
e /CN.U/w.19
Page 362

CHAPTER I I

TRIALS OP QUISLINGS AND TRAITORS

Fear reasons given in th e Preface, i t has not been possible fo r the

United Nations V.'ar Crimes Commission to submit a f u l l account of the
t r i a l s of quislin g s and t r a i t o r s .*
The follow ing is a b r ie f an aly sis of only one t r i a l , th a t of
P ie rre Laval, which is submitted as an i l lu s tr a tio n of th e type of
inform ation which can be found in t r i a l s of t h i s kind i f and when
research on th is subject i s undertaken.
Since no o f f ic ia l documents regarding t r i a l s of q u islin g s and
t r a i t o r s have been submitted or made e.vailable to th e Commission, the
follow ing analysis is based upon an u n o ffic ia l account of the Laval
t r i a l which reproduces a verbatim record of th e proceedings of the
Court, Although u n o ffic ia l, th is account can be safely regarded as
accurate, having been published in the well-known c o lle c tio n of important
t r i a l s ed ited by Maurice Garon, th e d istin g u ish ed French b a rris te r.* *
The T ria l of Laval
As could be expected the main, or ra th e r, the sole object of the
t r i a l was to e s ta b lis h whether or not the defendant had committed high
treaso n as a leading member of th e Vichy regime. Therefore, in so far as
v io la tio n s of human rig h ts came in to the p ic tu re , they did so only
inasmuch as they were in c id e n ta l to the alleged treasonable a c tiv itie s
of the accused. This is apparent in a l l stages of th e t r i a l , namely
in the indictm ent of the prosecutor, in the course of the proceedings
of th e Court and in i t s Judgment. In a l l these steges th e place a llo tte d
to such v io la tio n s is comparatively In s ig n ific a n t, and th e re is no
express reference to "human rig h ts" by name, but only in substance.
However, to the extent to which such v io la tio n s were the object of
the prosecution, of the proceedings and of the judgment, the information
which conerns them can be regarded as valuable. I t s ch ief value lie s
not so much in th e magnitude of th e t r i a l w ithin the f ie ld of French natienal
and in te rn a tio n a l a f f a ir s . I t l i e s more in th e fa c t th a t t r i a l s of tra ito r s

* See page v l i .
** C ollection des grands proces contemporains, publie sous la
d ire c tio n de Maurice Garon, Le procs Laval, Compte-rendu
stenographique, E ditions Albin Michel, P a ris , 19^6.

/which include
 e/ cn A/w.19
Page 363

which include v io la tio n s of human rig h ts as punishable under penal law

ere a novel phenomenon, and th a t in view of the aims declared in the
United Htions Charter and of th e purposes of i t s organs, en tru sted
w ith promoting a more e ffe c tiv e p ro tectio n of human r ig h ts , they are a
welcome source of inform ation of how th is ,p ro tectio n is operating on
a n a tio n al le v e l.
The Cou rt
P ierre Laval was tr ie d by a High Court of Ju stic e in s titu te d
by an Ordinance of 18 November 19^-.*
Tlie Court was formed fo r th e sp e c ific purpose of dealing w ith
charges against persons having taken p a rt in th e a c tiv itie s of the
so -c alle d Vichy government. The competence of the Court over accused
persons included the head of the S ta te , heeds of th e Government, m in isters
and other high o f f ic ia ls holding responsible p o sitio n s, such as
S e c re taries of S ta te , Governors General, High Commissioners and the lik e .* *
The Court was composed of th re e Judges (m agistrates) and tw enty-four
members of the ju ry . The judges wore th e F ir s t President of th e Court of
C assation; the P resident of th e Criminal Chamber of th e Court of Cassation;
and the F ir s t President of the Court of Appeal in P ari3 . The members of
the Jury were chosen by drawing lo ts from two l i s t s drawn up by the
P rovisional C onsultative Assembly. Half of those nominated and chosen were
Senators or Deputies on 1 September 1939***
The crim inal in v e stig a tio n was c a rrie d out by a sp ecial commission
upon chargos submitted to i t by th e Prosecutor General.**** The indictment
was drawn up by the Prosecutor and approved by the commission acting as
a Chember of Prosecution.*****
The procedure before the Cou!rt was th a t of a reg u lar penal court
competent in sim ilar cases (Cour A ssize), w ith the d ifference th a t a l l
decisions and sentences were talien and pronounced a fte r Jo in t d e lib e ra tio n
of the Judges and the Jury, The Court was empowered to impose any
punishment from a fin e to the death penalty, and to pronounce the n atio n al
in d ig n ity and confiscatio n of property of the defendant. The Judgment
was f in a l, giving only the rig h t to submit a plea fo r pardon.******

* See Journal O ffic ie l de l a Rpublique Franaise, No.128,

19 Novembre 19W , pages I 382- I 383.
** A rtic le 2.
*** A rtic le 3-
**** A rtic le s 6 and 7*
***** A rtic le 9.
****** A rtic le 10.
/The t r i a l
 The t r i a l began on 4 October 19^5 and was term inated a few days
l a t e r , on 9 October. Laval vas found g u ilty of the charges, was
condemned to death and executed on 15 October. He had lodged a plea
fo r pardon, which was re je c te d by the Head of the French S ta te .*
The Charges
Laval WQs in d icted under two counts:
(a) fo r "conspiracy against th e in te rn a l sec u rity of th e S ta te ",
and
(b) fo r "in te llig e n c e w ith th e enemy w ith a view to favouring the
l a t t e r 's e n te rp rise s in connection w ith h is own".
A ll the charges submitted under these two counts covered the period
when Laval was member of th e Vichy Government. He entered th e cabinet
of Petain on 23 June 1940 as M inister of S ta te , and on 11 July 1940
became Vice-Premier and successor-designate of P etain as head of S ta te .
He was dismissed by P etain on 13 December 1940, and was returned to
power in A pril 1942, when he became Premier, a post which he kept u n til
the lib e ra tio n of France in August 1944.
I t is mainly under the second count th a t v io la tio n s of the individual
r ig h ts of French c itiz e n s were involved, although i t i s possible to trace
some v io la tio n s of a broader sig n ifican ce under the f i r s t count.
A ll the evidence regarding v io la tio n s of human rig h ts was submitted
only w ith a view to proving high tre a so n , but as such th e said evidence
and v io la tio n s formed a d is tin c t p art of th e t r i a l .
The charrie of conspiracy ag ain st th e In te rn a l sec u rity of the S tate
Under th is charge the accused was alleg ed to have caused and
personally brought about th e end of th e c o n stitu tio n a l b a sis of th e
I I I Republic, by th e a b o litio n of i t s democratic foundations, and by the
establishm ent of an a u th o rita ria n S tate w ith Marchal Petain a t i t e head.
The indictm ent sp ec ifie d th a t the defendant brought about on 10 July 1940
"the suppression of th e Presidency of the Republic, the cumulation of all
powers in P ta in 's heals and the adjournment of the Parliament sine d ie".
His motives in doing so were alleged to include the d esire to see Germany
win th e war, and one of th e reasons fo r th is was said to be h is hatred of
Great B rita in .* *

* This p o sitio n vas held a t the time by General de G aulle, as an

in terim post u n til the s e ttin g up of a d e fin ite c o n stitu tio n a l regime
in post-war France. '
** See on. c i t . . pages 27- 28, 267- 269, 273- 274.
/Under th is
 e / cN.U/w. 19
Page 365

Under th is count, and as p e rt Of acts which undermined the " in te rn a l

sec u rity of the S ta te ", the prosecution included a sp ec ific charge which
concerned the v io la tio n of civ ic or p o litic a l rig h ts of French c itiz e n s .
The charge was th a t the Vichy Government had disbanded the so -called
Conseils generaux, whose functions approached those of lo c a l parliam ents,
and had abolished the e le c tio n of mayors in towns w ith a population of
more than 2,000 in h a b ita n ts.* However, th is was not developed beyond
being a point b r ie f ly mentioned as co n trib u tin g to e sta b lis h the v io la tio n
of the " in te rn a l sec u rity of the S ta te ."
The Charge of In te llig e n c e w ith th e Snemy
Most of the inform ation regarding human rig h ts is to be found under
th is count.
The main cherge was th a t the defendant, in co llab o ratin g w ith the
enemy, undertook le g is la tiv o end executive measures in order to "adapt
th e French c o n stitu tio n to German in s titu tio n s " , and acted w ith a view
to shaping th e French s ta te on the model of Nazi Germany.
I t is in connection w ith th is p a rt of the t r i a l th a t th e concept
of the v io la tio n of human rig h ts was involved.
R eferring to the period when Laval became Prime M inister in 19^2,
the prosecutor submitted fa c ts regarding persecutions of French c itiz e n s
on r a c ia l, re lig io u s or p o litic a l grounds:
"The so -c alle d French policy (of Laval) became then an
e n tire ly German policy: persecutions (were sta rte d ) of Jews,
Freemasons, communists and members of the R esistance from a l l
p a rtie s ; the police (was) put a t th e d isp o sal of the Gestapo;
22,000 a rre s ts (were made) in P aris during the night of
I 5- I 6 Ju ly .**
The prosecutor made a sp ec ific case of th e persecution of the Jews
upon the Nazi model:
"On 30 October 19^0 appeared a law signed by P ierre Laval,
then Vice-Premier, excluding a whole category of Frenchmen from
th e French community, (namely) banning the Jews from a l l public
functions and from most p ro fe ssio n s.../! lav; of 11 December 1 9 ^2 ...
forced the Jews to r e p o r t...f o r the purpose of in scrib in g the word
"Jew" in th e ir id e n tity cards, as well as in th e ir ra tio n cards, in
order to make i t e a sie r fo r the Gestapo to d etect them".***

* See op. c i t ., pages I 77- I 81, with the defence of Laval on th is point,
and page 2'[6.
** Op. c i t . . page 29.
*** Op . c it . . page 276.
/ArotH^f1
 Another charge vas th a t he had introduced, by le g is la tiv e and
executive measures, compulsory labour, w ith th e purpose of fo rc ib ly
tra n sp o rtin g French workers to Germany:
"...V o lu n tary enlistm ent having become a ra re occurrence,
Laval re so rte d to compulsory measures. F i r s t , a law (was enacted)
fo r the use and o rie n ta tio n " o f man-power, subjecting men and
women to any work the Government would fin d u sefu l. A fter th is a
ban (was imposed) cn employing workers w ithout p erm issio n .. .Then
compulsory labour (was introduced), a re a l organized co n scrip tio n ,
(e stab lish in g ) markets of slaves to be d eliv ered to Germany; ra tio n
cards were denied to those not complying.. .and a l l th is was .
accompanied by th e s t r i c t e s t in s tru c tio n s issued to th e Regional
P re fe c ts ."*
In stru c tio n s issued by Laval on 12 July 19^3 were quoted as an
illu s tr a tio n , showing th a t th e defendant had warned medical o ffic e rs not to
exempt workers on th e ground of "physical in e p titu d e w ithout good reason".
In th is connection, the medical o ffic e rs were th reaten ed th a t they would be
forbidden to exercise th e ir p ro fessio n , and the ad m in istrativ e personnel in
charge of conscription was threatened w ith internm ent. A passage quoted was
to the e ffe c t th a t "the Government had undertaken to send 220,000 workers.
This o b lig atio n must be abided by".** cn the oth er hand, evidence was
submitted to show th a t the defendant had not only v io la te d the rig h ts of
those conscripted fo r slave labour, bu t also of members of th e ir fa m ilie s.
On 11 June I 9U3, follow ing a broadcast made by Laval where he warned those
evading labour conscription in th a t sense, a la v was enacted p rescrib in g
internm ent, imprisonment and fin e s fo r members of th e fa m ilies o f those not
rep o rtin g fo r labour duties.***
F in a lly , the Secretary-G eneral of the N ational Federation of Deported
Workers and th e ir Families was heard as a w itness and t e s t i f i e d eoncerning
the fo rc ib le tra n s fe r of 785,000 workers to Germany. He read to the Court
a number of telegrams signed by Laval or h is subordinates and containing
in stru c tio n s to make the scheme e ffe c tiv e . The witness also t e s t i f i e d th a t
about 220,000 workers were "conscripted" by being a rre ste d a t random in the
s tr e e ts , and th a t about 50,000 workers disappeared o r lo s t th e i r liv e s in
Germany.****

* Op. c l t . , page 29- 3O.

** Op. c l t . , page 30. See also page 287-288.
*** Op. c l t . page 288- 289.
**** Op. c l t . , pages 233-237
/The Defence
 E / c?I,I+/vM 9
Fage 367

The Defence
Tho accused pleaded "Not Guilty" to a l l counts. Begarding the chargee
involving v io la tio n s c f human rig h ts he adopted a general lin o of defence.
Ho contended i;.a b whatever he did was undertaken under the duress of the
occupation and in order to av ert much worse measures which the enemy would
have introduced had th ere been no French Government during the occupation.
On sp ec ific p o in ts, such as tho in stru c tio n s and laws signed by him, he
e ith e r evaded a d ire c t answer c r l e t i t be understood th a t he was net
personally responsible fo r the tenor of the te x ts them selves.*
She Judgment
The accused was found g u ilty on both counts submitted by the
prosecution and condemned to death.
Of a l l the charges involving v ie l a t -ns of human rig h ts the court
retain ed the following in i t s judgment:
(a) The d isso lu tio n of p o litic a l or adm inistrative bodies
c o n stitu te d by e le c tio n s, which involves the v io la tio n of civic
or p o litic a l rig h ts ;
(b) The persecution of Jews;
(c) The mass deportation of workers "put a t the disposal of Germany
w ith a view tc a s s is tin g her in her war e ffo rt." * *
Conclusions
The above Judgment in d ic a te s th a t th e re are provisions c f municipal
law which perm it th e im position o f punishment fo r v io la tio n s o f human
rig h ts fo r which th e re is generally no re trib u tio n w ithin the sphere of
common penal law in time of peace. The d isso lu tio n o f p u b licly elected
p o l i t i c a l or adm inistrative bodies through which p o litic a l rig h ts are
v io la te d , when c a rrie d out by governmental actio n i s generally understood
as w arranting p o litic a l re s p o n s ib ility only. The same can be said in
respect of depriving a class of in d iv id u als of th e ir c iv ic r ig h ts , such as
in the case of the Jews, or of suppressing in dividual l i b e r t i e s , such as in
the case o f French workers conscripted fo r compulsory labour. In the
municipal law o f many a country, th e v io la tio n of such rig h ts through a c ts
c f S ta te leads only to p o litic a l san ctio n s, and leaves the v io la to r
undisturbed under the ru le s o f penal law. In tho instance o f the t r i a l o f
Laval such v io la tio n s f o i l w ithin the scope of penal law.

* See f e r in stan ce, on. c i t . , pages I 3I and 252.

** Op. c i t . , pages 305-309
/However,
 However, th is r e s u lt has "been a tta in e d in d ir e c tly , th a t is to the
extent to which human rig h ts vers v io la te d through acts representing
separate crimes under French law. And, although v io la tio n s c f such rig h ts
wore token in to account hy the Court, punishment was imposed in so fa r as,
by committing these v io la tio n s , the defendant had been g u ilty of other
offences punishable under French lavs as separate crim es.
I t is only a f te r a f u l l study of th e t r i a l s of q uislings and tr a ito r s
th a t i t would be possible to draw conclusions on the su fficien cy or
in su ffic ie n cy of municipal law in th is re sp ec t.
n ev erth eless, the t r i a l reviewed here has the m erit of in d icatin g
the problems which a ris e in connection w ith t r i a l s of q uislings and tra ito rs
and of showing th a t the c o lle c tio n of inform ation deriving from them would
no doubt be of great use fo r th e purpose of f i l l i n g the gaps in th e body of
law intended to p ro te c t human r ig h ts .
The t r i a l s which would deserve sp ec ia l a tte n tio n are those conducted
ag ain st in d ividuals who held responsible p o sitio n s in q u islin g governments
o r adm inistrations of the various occupic3 c o u n trie s. Such i s th e t r i a l of
yidkun Q uisling it' JPursny;. th e t r i a l o f ex-Marshal Antonescu in Kouaania;
th e t r i a l c l Bela Imredy in Hungary; th e t r i a l of Father-T iso in
Czechoslovakia, and many o th e rs. They a l l Include the prosecution of and
conviction fo r persecutions on p o l i t i c a l , r a c ia l o r re lig io u s grounds;
suppression of c iv il l ib e r tie s and p o litic a l r ig h ts , and offences against
other rig h ts or freedoms, a l l o f which are to be p ro tected aider the B ill
of Eights now being considered by th e Commission on Human Bights of the
United Nations.
The inform ation to be c o lle cte d in th is connection*may prove to be
o f a g reater value fo r the immediate o b ject o f the Human Bights Commission's
work than tho t r i a l s c f war crim inals proper.