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The Nuremberg Trial and the International Law of the Future

Published online by Cambridge University Press:  20 April 2017

F. B. Schick
F. B. Schick*
Affiliation:
University of Utah
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Extract

Among the most controversial features of the Nuremberg Trial have been the repeated efforts of the Allied Powers to prove that the law created by the London Agreement and the Charter of the International Military Tribunal attached to this Agreement was but declaratory of already existing rules of general international law, and that the verdict of the Tribunal, apart from its immediate purpose of retribution, must be considered as the first attempt in history to establish a legal precedent destined to act as a powerful deterrent against possible future resort to illegal war. The Final Report on the Nuremberg Trial, submitted by the American Representative to the President of the United States, reiterates these dominant ideas by declaring: “The four nations, through their prosecutors and through their representatives on the Tribunal, have enunciated standards of conduct … by which the Germans have been condemned” and which “will become the condemnation of any nation that is faithless to them.” Moreover, this document emphasizes what is termed “the power of the precedent” by asserting that “no one can hereafter deny or fail to know that the principles on which the Nazi leaders are adjudged to forfeit their lives constitute law—and law with a sanction.”

Type
Research Article
Information
American Journal of International Law , Volume 41 , Issue 4 , October 1947 , pp. 770 - 794
Copyright
Copyright © American Society of International Law 1947

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References

1 For the text of the London Agreement see Nazi Conspiracy and Aggression, Office of the U. S. Chief of Counsel for the prosecution of Axis criminality, U. S. Government Printing Office, Washington, 1946, 8 vols., Vol. I, pp. 1-3; for the Charter of the International Military Tribunal see same, pp. 4-11.

2 Mr. Justice Jackson, “Summary Review of the Indictment and the Charter and Their Legal Foundations,” in The Trial of German Major War Criminals, Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, H. M. Stationary Office, London, 1946 (hereinafter called Proceedings), Part 1, p. 85.

See also Sir Hartley Shawcross, Opening Speech, in Proceedings, Part 2, p. 46.

3 Prosecution of Major Nazi War Criminals. Final report to the President from Supreme Court Justice Robert H. Jackson, in Department of State Bulletin, Vol. 16 (October 27, 1946), p. 776.

4 Same, p. 774.

5 Baron Descamps, in Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbeaax of the Proceedings of the Committee, The Hague, 1920, pp. 49, 129.

6 Sir John Fiseher Williams, “A ‘New’ International Law,” in International Law Association, Report of the 33rd Conference, London, 1925, p. 435.

7 Eagleton, Clyde, “The Beam in Our Own Eye,” in Harpers Magazine. , Vol. 192 (June, 1946), p. 481 Google Scholar.

8 See for instance Johnson, Julia, ed., Capital Punishment. , New York, 1939 Google ScholarPubMed. See also Cantor, Nathaniel, Crime and Society. , New York, 1939 Google Scholar, and Thorsten Bellin, “Common Sense and the Death Penalty,” in Prison Journal, October, 1932, p. 12.

9 Harry E. Barnes and Negley K. Teeters, New Horizons in Criminology, New York, 1943, pp. 426-435.

10 Prosecution of Major Nani War Criminals, p. 774.

11 Text of the address of Justice Jackson at the University of Buffalo, in New York Times, October 5, 1946, p. 4.

For a similar view see “Report from Francis Biddle to President Truman,” in The Department of State Bulletin, Vol. 15 (November 24, 1946), pp. 956-957.

12 Charter of the International Military Tribunal, Article 1.

13 Charter of the United Nations, Article 24, section 1.

14 Charter of the United Nations, Article 27, section 3.

15 Article 39.

16 For an analysis of Chapter VII of the Charter of the United Nations see Schick, F. B., “War Criminals and the Law of the United Nations,” in The University of Toronto Law Journal. , Vol. 7 (Lent Term, 1947), pp. 57–65 CrossRefGoogle Scholar.

17 Kelsen, H., “Sanctions in International Law under the Charter of the United Nations,” in Iowa Law Review. , Vol. 31 (May, 1946), at p. 537 Google Scholar.

18 See for instance Professor Jahrreiss as quoted in The Trial of German War Criminals. . . . Speeches of the Prosecution at the close of the case against the individual defendants (hereinafter cited as Closing Speeches), p. 23.

19 Same, p. 23.

20 Same, p. 56.

21 Closing Speeches, p. 56.

22 Same, p. 66.

23 Congressional Record, Vol. 92, No. 154, p. 10850.

24 Proceedings, Part 1, p. 143.

25 Nazi Conspiracy and Aggression, as cited. Opinion and Judgment, Washington, 1947, p. 16.

26 Schick, F. B., “Court and Council of the United Nations,” in Modern Law Review. , Vol. 9 (July, 1946), pp. 103–104 CrossRefGoogle Scholar.

27 Above, pp. 1-2.

28 Nazi Conspiracy and Aggression, Vol. I, p. 4.

29 Mr. Justice Jackson, Opening Speech, in Proceedings, Part 1, p. 81.

30 Same.

31 L. Oppenheim, International Law, 5th ed., Vol. I, § 17.

32 Glueck, Sheldon, The Nuremberg Trial and Aggressive War. , New York, 1946, p. 38 Google Scholar

33 F. B. Schick, “War Criminals and the Law of the United Nations,” pp. 30-37.

34 A different interpretation is given by Quincy Wright, “The Law of the Nurem berg Tribunal,” this Journal, Vol. 41 (1945), p. 49. In this leading contribution tb author, while admitting that “international law does not permit states to adminiete criminal law over any defendant for any act,” declares that “Every states does, how ever, have authority to set up special courts to try any person within its custody who commits war crimes, at least if such offenses threaten its security. It is believed that this jurisdiction is broad enough to cover the jurisdiction given by the Charter.”

35 Hyde, C. C., International Law. , Boston, 1945 (2nd ed.), Vol. I, § 2BGoogle Scholar. “Difficulties are encountered when attempt is made to change the law in the face of substantial opposition. It is improbable that, for example, the United States would admit that a large preponderant group of states could through its collective will amend the law and thereby broaden the obligations or curtail the rights of states belonging to another less powerful group without their acquiescence. In a word, changes wrought in the law of nations must receive the approval of the several states affected thereby, that is, of substantially the full international community.” See also Oppenheim, L., International Law. , 5th ed., Vol. I, pp. 15–19 Google Scholar, and especially p. 18: “. . . The body of the rules of this law can be altered by common consent only, not by a unilateral declaration on the part of one state.”

36 For a careful analysis of this theory see H. Kelsen, Peace through Law, Chapel Hill, 1944, pp. 108-110.

37 Department of State Bulletin, Vol. 15, No. 384 (November 10, 1946), p. 852.

38 Scott, James B., ed., The Hague Conventions of 1889 and 1907. , New York, 1918, pp. 122–127 Google Scholar.

39 For the text of the Potsdam Declaration see Department of State Bulletin, Vol. 15, No. 384 (November 10, 1946), p. 80.

40 H. Kelsen, “The Legal Status of Germany According to the Declaration of Berlin” in this Journal, Vol. 39 (1945), p. 518.

According to a different interpretation the occupant Powers have not established a condominium and, therefore, have not assumed the legal obligations incumbent upon them under a condominium. Following this opinion the four Powers are acting as “trustees” only. This interpretation, however, is legally untenable since the prerequisite for a trusteeship system would have been a treaty concluded between the occupant Powers and Germany. Hence the argument has been advanced that the régime established in Germany is sui generis and has no precedent in international law. If this view is accepted one might, perhaps, ask whether it is “the right that flows from victory” which gave the four Powers authority to establish a new form of government which is admittedly not supported by prevailing rules of international law.

41 The French Prosecution, quite consistently, it would seem, referred to the Tribunal as having been “established by the four nations signatory to the agreement of 8th August, 1945 ...” (M. François de Menthon, in Proceedings, Part 4, p. 340).

42 Nazi Conspiracy and Aggression, as cited; Opinion and Judgment, p. 48.

43 Control Council Law No. 10, Punishment of persons guilty of war crimes, crimes against peace and against humanity, in The Department of State Bulletin, Vol. 15 (November 10, 1946), p. 862, where it is stated that: “In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto, . . . the Control Council enacts as follows:

Article 1

The Moscow Declaration . . . and the London Agreement . . . are made integral parts of this law. . .”

For Control Council Proclamation No. 1 see same, p. 859.

44 Nazi Conspiracy and Aggression, Vol. I, p. 5.

45 Sidney S. Alderman, in Proceedings, Part 1, p. 143.

46 Proceedings, op. cit., Vol. 1, pp. 41-46.

47 Kelsen, Hans, Law and Peace in International Relations. , Cambridge, Masa., 1942, p. 35 Google Scholar: “... according to international law war is forbidden in principle. It is permitted only as a reaction against an illegal act, a delict, and only when directed against the state responsible for this delict.”

48 Opinion and Judgment, p. 50.

See also Quiney Wright, “The Law of the Nuremberg Tribunal,” pp. 66-67. For a clear rejection of this interpretation see Pitman B. Potter, in New York Times (Editorial page), June 2, 1946, where it is declared that “ To punish individuals for the offense of waging aggressive war or conspiracy to wage war, however, is to inject a new element, apart from the difficulty that ‘aggressive war’ had not been authoritatively defined prior to 1939.”

49 Opinion and Judgment, pp. 51-52.

50 Same, p. 52.

51 Same, p. 50.

52 Same, pp. 51-52.

53 G. A. Finch, “The Nuremberg Trial and International Law,” in this Journal, Vol. 41 (1947), pp. 26-28.

54 Same, p. 33, where the author arrives at the following conclusion: “In the light of this legislative history of the official attitude of the Government of the United States toward the interpretation of the Pact of Paris for the Renunciation of War, it is impossible to accept the thesis of the Nuremberg Tribunal that a war in violation of the Pact was illegal in international law on September 1, 1939, and that those who planned and engaged in it were guilty of international criminal acts at the time they were committed, or at the date of signature of the Charter of the International Military Tribunal at London on August 8, 1945, or on October 1, 1946, the date of the judgment of the Nuremberg Tribunal.”

See also Edwin Borchard, “International Law and International Organization,” in this Journal, Vol. 41 (January, 1947), p. 107, where the author, commenting on the interpretation given the Pact of Paris by the victorious Powers, states: “We leave aside the fact that the judges of the Tribunal, in characterizing ‘aggressive’ war as a crime, were each condemning the history of their own nation, that the Kellogg Pact had numerous exceptions upon which the signatory nations insisted, and that the Kellogg Pact had not heretofore been regarded as applying to individuals. ...”

55 The fact that the enactment of Control Council Law No. 10 legalized this provision with retroactive effect is of no importance in the context of this analysis, which is concerned with the international aspects of the case.

56 Charter of the United Nations, Article 2, section 7.

57 Sir Hartley Shawcross, Closing Speeches, as cited, p. 62.

58 Same, p. 63.

59 Same, p. 63.

60 Sir Hartley Shawcross, Closing Speeches, p. 63.

61 Same, p. 64.

62 Same, p. 63. The implications of the cited conception were outlined by Quincy Wright, “The Law of the Nuremberg Trial,” pp. 47-48. A legal analysis of the Charter of the United Nations does not support the view expressed by this writer that the Members of the United Nations have performed “an act of faith” by incorporating either into the law of the United Nations or into their municipal codes the principles proclaimed at Nuremberg.

63 Sir Hartley Shawcross, as cited.

64 Same.

65 Opinion and Judgment, p. 84.

66 “This broad jurisdictional clause,” as recently cited by a leading authority, is not supported by existing international law. “There is no rule of international law, customary or conventional, by which such acts committed before the commencement of hostilities can be punished by the subsequent military occupants.” (G. A. Finch, “The Nuremberg Trial,” p. 23.)

67 A definition of these organs of the German State is given in Appendix B. to the Indictment, Proceedings, Vol. 1, pp. 38-41.

68 Opinion and Judgment, p. 85.

69 Same, p. 86.

70 Hans Kelsen, Peace through Law, p. 81.

71 Same, p. 81.

72 Same, pp. 82-83.

73 Trial of War Criminals, Documents, Department of State Publication 2420, U. S. Government Printing Office, Washington, D. C, 1945, Report of Robert H. Jackson to the President, p. 3.

74 Mr. Justice Jackson, in Proceedings, Vol. 1, pp. 82-83.

75 Same, p. 83.

76 Sir Hartley Shawcross, in Closing Speeches, p. 58.

77 Hans Kelsen, Peace through Law, p. 97, and the same author in California Law Review, Vol. 31 (1943), p. 542, where he states that “there is no sufficient reason to assume that the rule of general customary law under which no state can claim jurisdiction over the acts of another state is suspended by the outbreak of war and consequently that it is not applicable to the relationship between belligerents.”

78 See, for instance, Mérignhac, A., De la sanction des infractions au droit des gens, Revue Générale de droit international public. , Vol. 24 (1917), p. 49 Google Scholar, where the author states La théorie de l’acte de gouvernement est une théorie de paix, qui disparait au cours des hostilités.” This assertion is without foundation in positive international law.

79 Sheldon Glueck, The Nuremberg Trial and Aggressive War, Chapter IV, pp. 46-59.

80 Glueck, p. 49.

81 Same, p. 58.

82 Same, p. 59.

83 Hyde, work cited, Vol. 3, § 920, p. 2415.

84 Dr. Jahrreis as quoted in Closing Speeches, p. 139.

85 M. Champier de Ribes, same, pp. 139-140.

86 Sir Hartley Shawcross, in Closing Speeches, p. 58.

87 Opinion and Judgment, p. 52.

Ex parte Quirin (1942), 317 U. S. 1. It appears highly erroneous to quote this case in evidence of a general rule of international law supporting the criminal liability of the Nuremberg defendants. Ex parte Quirin, it is well known, dealt substantially with the crime of war treason juris gentium, a crime for which general international law has established individual criminal responsibility as an exception to the rule.

88 The reference to Article 228 of the Treaty of Versailles, it would seem, is very unfortunate since it only confirms the assertion that general international law has not established individual criminal responsibility for acts of state, and that the victorious Powers of the first World War, in order to create such responsibility, had to receive Germany’s consent by means of a treaty.

89 Opinion and Judgment, p. 53.

90 Same, p. 53.

91 Eenault, Louis, “De l’application du droit pénal aux faits de guerre,” in Bévue de droit international public. , Vol. 25 (1918), pp. 5–29 Google Scholar, where the writer advances the doctrine that acts of warfare although criminal in character are not punishable under international law only if the war itself during which these acts are committed is not waged in violation of international law. See also Hans Kelsen, Peace through Law, pp. 93 ff., where the distinguished writer declares Eenault’s doctrine “untenable.”

92 Kelsen, p. 97. See also George Manner, “ The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War,” in this Journal, Vol. 37 (1943), pp. 407 ff. and p. 433.

93 Reichsgesetzblatt, Nr. 181—1940, Ausgegeben su Berlin, de n 16.10.1940. Verordnung über die Neufassung des Militärstrafgesetzbuches vom 10.10.1940, Vierter Abschnitt, § 47.

94 U. S. War Department. Basic Field Manual, Rules of Land Warfare, U. S. Government Printing Office, Washington, D. C, 1940.

95 After November 15, 1944, a new text, Article 345.1, was introduced, providing: “Individuals and organizations who violate the accepted laws and customs of war may be punished therefor. However, the part that the acts complained of were done pursuant to order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defense or in mitigation of punishment.”

96 Opinion and Judgment, pp. 53-54. One may severely doubt whether a soldier has a “moral choice” to disregard, in times of war, a command of his superior.

97 For a summary of these objections see Opinion and Judgment, p. 49.

98 Same.

99 Kelsen, Hans, “The Rule Against Ex Post Facto Laws and the Prosecution of the Axis War Criminals,” in The Judge Advocate Journal. , Vol. 2 (Fall-Winter 1945), p. 46 Google Scholar. See also Gross, Leo, “The Criminality of Aggressive War,” in The American Political Science Review. , Vol. XLI (April, 1947), pp. 205–225 CrossRefGoogle Scholar.

100 United Nations Journal, No. 58 (Supplement A), p. 470.

101 Manley O. Hudson, “Encouragement of the Development of International Law by the United Nations,” in this Journal, Vol. 41 (1947), p. 106.