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The Law of the Nuremberg Trial

Published online by Cambridge University Press:  20 April 2017

Quincy Wright
Quincy Wright*
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Extract

On the afternoon of October 1, 1946, the International Military Tribunal at Nuremberg sentenced twelve of the twenty-two Nazi defendants to death by hanging and seven to imprisonment for terms ranging from ten years to life. Three were acquitted. Three of the six accused organizations were found to be criminal. The reading of these sentences was preceded by the reading, through the whole of September 30, of the general opinion of the Tribunal on the four counts of the indictment and, on the morning of October 1, of the opinion on the charges against each defendant.1 The Control Council for Germany considered applications for clemency for most of those convicted but did not grant them and carried out the executions of those sentenced to death on October16 with the exception of Martin Bormann who had not been found and Hermann Goering who had succeeded in committing suicide a few hours earlier. Thus came to an end what President Truman described as “ the first international criminal assize in history.” “ I have no hesitancy in declaring,” continued the President, “ that the historic precedent set at Nuremberg abundantly justifies the expenditure of effort, prodigious though it was. This precedent becomes basic in the international law of the future. The principles established and the results achieved place International Law on the side of peace as against aggressive warfare.” 2

Type
Research Article
Information
American Journal of International Law , Volume 41 , Issue 1 , January 1947 , pp. 38 - 72
Copyright
Copyright © American Society of International Law 1947

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References

1 The judgment was mimeographed on 283 pages of legal size paper with a table of contents and also appeared, followed by the sentences, on pp. 16794 to 17077 of the daily record of the trial. The former is here referred to as “Judgment” and the latter as “Record.” The judgment is reproduced below, pp. 172-331, and citations to it in these notes refer to that text.

2 Department of State Bulletin, Vol. 15, p. 776 (Oct. 27, 1946).

3 The New York Times, Oct. 31, 1946. President Truman had made a similar statement in his address to the General Assembly on October 23, 1946 : Department of State Bulletin, Vol. 15, p. 809 (Nov. 3, 1946).

4 Same, Vol. 9, p. 311 (Nov. 6, 1943). See declaration by nine governments in exile on “Punishment of War Crimes,” Jan. 13, 1942, in United Nations Information Office, War and Peace Aims, January 30, 1943, p. 116. In the Yalta Conference of February 11, 1945, Messrs. Roosevelt, Churchill, and Stalin declared their “inflexible purpose to .... bring all war criminals to just and swift punishment” and this purpose was affirmed in the Berlin Conference of August 2, 1945, by Stalin, Truman and Attlee who “regarded it as a matter of great importance that the trial of those major criminals should begin at the earliest possible date.” United States Department of State, The Axis in Defeat, a Collection of Documents on American Policy toward Germany and Japan, 1945, pp. 7, 9, 12, 17 ; see also pp. 3, 46.

5 The United Nations War Crimes Commission reported on Nov. 16, 1946, that up to Oct. 31 of that year 1108 war criminals had been tried in Europe, 413 sentenced to death, 485 imprisoned, and 210 acquitted. In the Far East 1350 had been tried, 384 sentenced to death, 704 imprisoned and 262 acquitted. In the cases of Ex parte Quirin, 1942, 317 U. S. 1, and In re Yamashita, 1946, 66 Sup. Ct. 340, the Supreme Court of the United States sustained the jurisdiction of United States Military Commissions in such cases.

6 Department of State Bulletin, Vol. 12, 1071 (June 10, 1945).

7 U. S. Executive Agreement Series No. 472. This and other documents connected with the trial were printed by the Department of State in Trial of War Criminals, Documents, Washington, 1945. See also similar publication Trial of Japanese War Criminals, Documents, Washington, 1946.

* Arts. 6-10; this Journal, Vol. 39 (1945), Supplement, pp. 259-260.

8 Department of State, Trial of War Criminals, pp. 23-89. Sir Hartley Shawcross succeeded Sir David Maxwell Fyfe as Chief British Prosecutor though the latter continued to serve in Nuremberg during the trial. M. Champetier de Kibes succeeded M. de Menthon as Chief French Prosecutor.

9 Judgment, p. 173.

10 They are listed on p. 4 of the original text ; see p. 173, below.

11 The Tribunal held 403 open sessions and listened to evidence from 33 witnesses for the prosecution and 80 witnesses for the individual defendants including 19 defendants themselves. One hundred and forty-three witnesses for the individual defendants gave evidence by written answers to interrogations and 1809 submitted affidavits. The Tribunal heard 22 witnesses for accused organizations and appointed a commission to hear 100 witnesses for such organizations. One thousand eight hundred and nine affidavits were submitted in behalf of accused organizations. In addition several thousand documents were received in evidence, the essential portion being, in most cases read into the record. Judgment, p. 173.

12 Many of the Documents will appear in a publication in eight volumes entitled Naz Conspiracy and Aggression prepared by the American Prosecution and published by the United States Government.

13 For past proposals of this type see Manley O. Hudson, International Tribunals Past and Future, Washington, 1944, pp. 180 ff. and for the text of Convention for Creation of an International Criminal Court signed by thirteen states at Geneva in 1937 Hudson, International Legislation, Washington, 1946, Vol. 7, p. 878.

14 A number of jurists have considered the extent to which “war crimes” were crime under international law before 1939. There seems to have been an almost unanimoui opinion that war crimes in the narrow sense were, but with respect to the initiation of aggressive war there has been some dissent. The following support the criminality of “aggressive war” with arguments drawn from international custom, the Briand-Kellogj Pact, or other treaties: LordWright, , “War Crimes Under International Law,” in Law Quarterly Review, Vol. 62 (1946), pp. 40–52 Google Scholar; Glueck, Sheldon, “The Nuremberg Trial and Aggressive War,” in Harvard Law Review, Vol. 59 (1946), pp. 396–456, reprinted by Knopf, New York, 1946 Google Scholar (differing on this point from the author’s earlier volume, War Criminals, Their Prosecution and Punishment, New York, 1944, p. 37) ; Bernays, Murray C., “Legal Basis of Nuremberg Trials,” in Survey Graphic, January, 1945, p. 5 Google Scholar Trainin, A. N., Hitlerite Responsibility Under Criminal Law, New York, 1945 Google Scholar; Kelsen, Ham, “Collective and Individual Responsibility in International Law, With Particular Regard to the Punishment of War Criminals,” in California Law Review, Vol. 31 (1943) p. 530 CrossRefGoogle Scholar; the same, “The Rule Against Ex Post Facto Laws and the Prosecution of the Axis War Criminals,” in Judge Advocate Journal, Vol. 2 (1945), p. 8 Google Scholar; Cowles, Willard B, “Universality of Jurisdiction Over War Crimes,” in California Law Review Vol. 33 (1945), pp. 177–218 CrossRefGoogle Scholar; the same, “High Government Officials as War Criminals,’ in American Society of International Law, Proceedings, 1945, p. 54 Google Scholar; the same, “Trial of War Criminals by Military Tribunals,” in American Bar Association Journal, June, 1944 Google Scholar; Levy, Albert G. D., “The Law and Procedure of War Crime Trials,” in American Political Science Review, Vol. 37 (1943), pp. 1052–1081 CrossRefGoogle Scholar; the same, “Criminal Responsibility of Individuals and International Law,” in University of Chicago Law Review, Vol. 12 (1945), pp. 313–332 CrossRefGoogle Scholar; Sack, A. N., “War Criminals and the Defense of Superior Orders in International Law,” in Lawyers Guild Review, Vol. 5 (1945)Google Scholar ; Lauterpacht, H., “The Law of Nations and the Punishment of War Crimes,” in British Year Book of International Law, 1944, pp. 58–95 Google Scholar; Doman, Nicholas, “Political Consequences of the Nuremberg Trial,” in American Academy of Political and Social Sciences, Annals, Vol. 246 (July, 1946), pp. 81–90 CrossRefGoogle Scholar; Wright, Q., “War Criminals,” in this Journal, Vol. 39 (1945), pp. 257–285 Google Scholar; the same, “Due Process and International Law,” in this Journal, Vol. 40 (1946), pp. 398-406; the same, “The Nuremberg Trial,” in Chicago Bar Record, Vol. 27 (1946), pp. 201–219 Google Scholar; the same, “The Nuremberg Trial,” in American Academy of Political and Social Science, Annals, Vol. 246 (July, 1946), pp. 72–80 CrossRefGoogle Scholar. The following are doubtful on this point: Charlea E. Wyzanski, Jr., “The Nuremberg War Criminal Trial,” a communication to the American Academy of Arts and Sciences, December 12, 1945; Radin, Max, “War Crimes and the Crime of War,” in Virginia Law Review, Vol. 21 (1945), p. 497 Google Scholar; the same, “Justice at Nuremberg,” in Foreign Affairs, Vol. 24 (1946), pp. 369–304 CrossRefGoogle Scholar; Schwarzenberger, Georg, “War Crimes and the Problem of an International Criminal Court,” in Czechoslovak Year Booh of International Law, London, 1942, pp. 67–88 Google Scholar; Pinch, George, “Retribution for War Crimes,” in this Journal, Vol. 37 (1943), pp. 81–88 Google Scholar; Hula, Erich, “Punishment for War Crimes,” in Social Research, Vol. 13 (1946), p. 1 Google Scholar; the same, “The Revival of the Idea of Punitive War,” in Thought, Vol. 21 (1946), pp. 405–434 CrossRefGoogle Scholar. Reports of the Section on International and Comparative Law of the American Bar Association, July, 1945, and of the National Lawyers Guild, December, 1944 (Lawyers Guild Review, Vol. 4, p. 18), were inconclusive on this point. See also discussions in American Society of International Law participated in by C. C. Hyde, E. D. Dickinson, Charles Warren, Edvard Hambro, Quincy Wright, George A. Pinch, and others (Proceedings, 1943, pp. 39-58), and by Willard B. Cowles, Edward Dumbault, Alwyn V. Preeman, Charles Prince, John B. Whitton, Elbert Thomas, George A. Pinch, Frederick R. Coudert and others (same, 1945, pp. 68-76).

15 Judgment, p. 186.

16 The judgment followed the indictment in distinguishing “acts of aggression,” such as the seizures of Austria and Czechoslovakia, and “wars of aggression,” including the operations against Poland, Denmark, Norway, The Netherlands, Belgium, Luxembourg, Jugoslavia, Greece, Soviet Union and the United States. Same, p. 186.

17 U. S. Code, Tit. 18, sec. 25.

18 U. S. Code, Tit. 18, sec. 481. Piracy was originally a capital offense.

19 Wright, Q., “The Legal Liability of the Kaiser,” in American Political Science Review, Vol. 13 (1919), pp. 127 CrossRefGoogle Scholar ff.

20 These arguments were included in a motion by Goering’s counsel at the opening of the trial. The Tribunal gave it consideration and declared on November 21, 1945 : “Insofar as it may be a plea to the jurisdiction of the Tribunal, it conflicts with Article 3 of the Charter and will not be entertained. Insofar as it may contain other arguments, which may be open to the defendants, they may be heard at a later stage.” (Record, p. 94.) Unable to attack the jurisdiction of the Tribunal or the validity of the Charter, subsequent arguments of defendant ‘s counsel urged a restrictive, in some cases nullifying, interpretation of the law set forth in the Charter or confined themselves to evidence to sustain the “not guilty” pleas. Those in the first category sought to eliminate the aggressive war charge altogether by insisting that it was based on ex post facto law (Goering), or to restrict its interpretation by consideration of the practical necessities of diplomacy (Eibbentrop, p. 13058), and war (Goering thought the Hague Conventions were not applicable to total war) under existing conditions of international relations, technology and moral opinion in Germany (especially because of the “iniquities” of the Treaty of Versailles and the natural aspirations of a defeated people to rehabilitate themselves (Hess). Others, relying mainly on evidence, did not deny that crimes had taken place but sought to escape liability by pleading Hitler’s orders, unawareness of the crimes at the time, lack of criminal intent in issuing orders, or lack of participation in any action which was criminal under the terms of the Charter (Schacht, Von Papen, Fritsche).

21 This argument also appears in Goering ’s motion. It has been suggested that the Tribunal administered “political justice” based on the desire for “vengeance” sacrificing “democratic” for “totalitarian” concepts. See Barron’s National Business and Financial Weekly, October 7, 1946. Senator Robert Taft mingled this argument with the suggestion that the defendants should not have been found liable because the law was ex post facto and, rather inconsistently, that those sentenced to death should have been sentenced only to life imprisonment. See press reports of address at Kenyon College, October 5, 1946.

22 Under the head “Aggressor Nations” The Chicago Tribune’s leading editorial for October 2, 1946, writes: “The truth of the matter is that no one of the victors was free of the guilt which its judges attributed to the vanquished.”

23 Anderson, C. Arnold, “The Utility of the Proposed Trial and Punishment of Enemy Leaders,” in American Political Science Review, Vol. 37 (1943), pp. 1081 CrossRefGoogle Scholar ff.; Hula, Erich, “The Revival of the Idea of Punitive War,” in Thought, Vol. 21 (1946), pp. 405 CrossRefGoogle Scholar ff.

24 See Chicago Tribune, cartoon and editorial, Oct. 2, 1946. Some of these arguments are discussed by the present writer: “War Criminals,” in this Journal, Vol. 39 (1945), pp. 259, 263.

25 Below, notes 36-39.

26 Eastern Carelia Case, Publications, PCI, Ser. B, 5 ; 1 World Court Reports, 190 ; Harvard “Research in International Law, Competence of Courts in Regard to Foreign States, in this Journal, Supplement, Vol. 26 (1932), pp. 455 ff.

26a Even an infamous person is protected by criminal law (Wharton, Criminal Law, pp. 138, 139). Grotius, quoting the Bible (John VIII, 7), thought that under natural law “a guilty person ought not to be punished by an equally guilty” (De Jure Belli ac Pacis, II, cxx, 3, 2), but recognized that this had no application to punishment by a superior authority established by positive law (De Jure Belli ac Pacis, II, cxx, 40, 1). Judge Hudson in a concurring opinion in the Permanent Court of International Justice suggested that international law permitted a “sparing application” of equitable principles such as “He who seeks equity must do equity” (Case of Water Diversion from the Meuse, 1937, 4 World Court Reports 232-3) but this had no reference to criminal liability.

27 Quincy Wright, War Criminals, note 4.

28 Harvard Research, Jurisdiction with Respect to Crime, Arts. 7, 9, in this Journal, Supplement, Vol. 29 (1935), p. 543.

29 The nature, extent, and reason for these commitments are discussed in a Symposium on World Organization, in Yale Law Journal, August, 1946. The general concern is suggested by Justice Wm. O. Douglas in his introduction : “The use of force by any nation may now destroy it as well as those against whom it is used. Internally and externally we must untie our Gordian knots; we cannot cut them except at our peril. The instruments with which we must contrive that men live peacefully together are more intricate and difficult ones. They are the instruments for peaceful adjustment of conflicts between groups and nations. Those instruments are law—law administered in accordance with civilized traditions, law conceived and administered by politically competent people.” Same, p. 868.

30 Some, including the Soviet judge and the Prosecution, have thought that it would have justified further convictions. If the court erred it was in too liberal an application of the principle that the defendants should have the benefit of the doubt.

31 Answer to Goering’s motion, above, note 20. See also Judgment, p. 216.

32 See especially Goering’s motion of Nov. 20, 1945; argument by Jodl’s counsel, Dr. Jahrreiss, July 4, 1946 ; argument by Goering ‘s counsel, Dr. Otto Stahmer, July 4, 1946 ; and final word by Goering, Aug. 31, 1946, Record, pp. 12906, 12959, 16729.

33 This principle is subject to qualifications, see Roxburgh, R. F., International Conventions and Third States, London, 1917 Google Scholar.

34 Judgment, p. 216.

35 Harvard Research, Jurisdiction with Respect to Crime, this Journal, Vol. 29 (1925), Supplement, p. 439.

36 See Cowles, “Universality of Jurisdiction over War Crimes,” as cited, and below, notes 38, 39.

37 See above, p. 45.

38 Harvard Research, Piracy, this Journal, Vol. 26 (1932), Supplement, p. 743; and same, Jurisdiction with Respect to Crime, Art. 9, at p. 563.

39 Harvard Research, Jurisdiction with Respect to Crime, Arts. 7-10, pp. 440, 569-73, 579.

40 The Lotus (France and Turkey), P. C. I. J., Publications, Ser. A., No. 10, 2 World Court Reports 34-35; Cowles, p. 178.

41 Department of State, The Axis in Defeat, p. 63.

41a Wright, Q., Mandates under the League of Nations, Chicago, 1930, pp. 13, 306-9, 315-39, 530-37Google Scholar.

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

43 Hyde, C. C., International Law, Boston, 1945, 2nd ed., Vol. I, pp. 397-8Google Scholar.

44 As in declaring rules of diplomatic precedence at Vienna, in 1815, rules of treaty validity at London, 1871, and rules of maritime international law at Paris, 1856, and London, 1909. The International Law of the Future, published by a group of American jurists in 1944, includes the statement: “It is assumed that at the conclusion of the present war the lodgment of power will be such that the states which desire an effective organization will have dominant voice, and that other states will be willing, or will feel themselves constrained, to follow the lead. If one or more states should hold aloof, competence might none the less be vested in the organization to act on behalf of the whole Community of States”: p. 81.

45 Judgment, pp. 216-217.

46 Harvard Research, Responsibility of States for Damage done in their Territory to the Person and Property of Aliens, Art. 9, this Journal, Vol. 23 (1929), Supplement, p. 173; Jurisdiction with Respect to Crime, Arts. 12, 13; Wright, Q., “Due Process and International Law, this Journal, Vol. 40 (1946), pp. 398 Google Scholar ff.; Freeman, A. V., The International Responsibility of States for Denial of Justice, New York, 1938, pp. 262 Google Scholar ff., 547 ff.

46a Art. 16; this Journal, Vol. 39 (1945), Supplement, p. 260.

47 The Tribunal curbed the disposition of some defendants ‘ counsel to expand on what they considered the iniquities of the Versailles Treaty and to submit evidence concerning the policies or acts of members of the United Nations unless in support of a contention that the defendants initiated wars in necessary self defence or that war measures were justifiable reprisals.

48 The Tribunal appointed expert commissions to examine Krupp von Bohlen, Hess, and Streicher and, after listening to argument, found Krupp too sick to be tried and the other two in a mental condition permitting trial.

49 ln re Yamashita, 1946, 66 Sup. Ct. 340 and comment, this Journal, Vol. 40 (1946), p. 398.

50 The Tribunal received affidavits if circumstances prevented personal attendance of witnesses whose evidence appeared to be relevant and important. It refused to receive documents or to summon witnesses if it considered the subject matter of their evidence irrelevant or merely cumulative (Charter, Arts. 17-21; Rules 4, 7). The task of considering applications consumed a great deal of the Tribunal’s time in private sessions. To assure availability of all evidence in all the languages it required that the important part of all documents offered in evidence be read into the record unless copies were provided in advance in all four languages (Charter, Art. 25).

51 See Statement of Essential Human Rights by a Committee appointed by the American Law Institute, Art. 9 ; American Academy of Political and Social Science, Annals, Vol. 243 (Jan., 1946), p. 22; Lauterpacht, H., An International Bill of the Mights of Man, New York, 1945, p. 93, 99Google Scholar.

52 In the Van Bokkelen Case (U. S. and Hayti, 1888) the United States contended “that continuous imprisonment for debt, when there is no criminal offense imputed, is contrary to what are now generally recognized principles of international law” but this aspect of the matter was not discussed in the arbitration: ( Moore, J. B., Digest of International Law, Vol. 6, pp. 699, 772)Google Scholar. See Borehard, E. M., Diplomatic Protection of Citizens Abroad, New York, 1919, p. 99 Google Scholar ; Freeman, A. V., The International Responsibility of States for Denial of Justice, New York, 1938, pp. 522, 550 Google Scholar. The Harvard Research did not include the application of ex post facto laws among prohibited procedures in its draft convention in jurisdiction with respect to crime (Arts. 12, 13) but did so in its draft convention on extradition (Arts. 2 (a), 12 (3) b) : this Journal, Vol. 29 (1935), Supplement, pp. 77, 163, 596 ff.

53 Q. Wright, “Due Process and International Law,” as cited. The dissenting justices thought the offense charged was inadequately defined in preexisting international law and cited this among other reasons for believing that “due process” had been denied the defendant.

54 “It is to be observed,” says the Nuremberg judgment, “that the maxim nullum arimen sine lege is not a limitation of sovereignty but is in general a principle of justice”: Judgment, p. 217.

55 Arts. 6-9, quoted above.

56 Judgment, p. 216.

57 See note 32, above.

58 These include the Draft Treaty of Mutual Assistance, 1923 ; the Geneva Protocol, 1924; the League of Nations Assembly Resolution on Aggressive War of September 24, 1927; the Resolution of the Pan-American Conference of Havana, Feb. 18, 1928.

59 Judgment, p. 220.

60 Judgment, p. 217.

61 Same, pp. 218-219.

62 Same p. 220. The Tribunal also referred to Arts. 227 and 228 of the Treaty of Versailles for the trial of the Kaiser and German war criminals of World War I.

63 Judgment, p. 220.

64 Ex parte Quirin, 1942, 317 U. S. 1.

65 Judgment, p. 221.

66 “The fact must also be recognized that kings, and those who possess rights equal to those of kings, have the right of demanding punishments not only on account of injuries committed against themselves or their subjects but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever. For liberty to serve the interests of human society through punishments, which originally, as we have said, rested with individuals, now after the organization of states and courts of law is in the hands of the highest authorities, not, properly speaking, in so far as they rule over others but in so far as they are themselves subject to no one. For subjection has taken this right away from others “: De Jure Belli ao Pacis, Bk. II, c. 20, sec. 40, Carnegie ed., p. 504. See Hackworth, , Digest of International Law, Vol. 2, p. 687 Google Scholar. According to Lee, E. W., “Since the First World War, and more than ever today, the Grotian conception of international law has reëmerged into the light. The Nuremberg trial is a testimony to its cogency”: Law Quarterly Review, Vol. 62 (1946), p. 56 Google Scholar.

66a A Dutch act of 1651 penalized persons who committed certain offensives against foreign diplomats as “violators of the law of nations” and the same term was used in the Statute of Anne which arose out of an assault upon the Czar’s Ambassador (Harvard Research, Draft Convention on Diplomatic Privileges and Immunities, in this Journal, Vol. 26 (1932), Supplement, p. 94; Feller, and Hudson, , Diplomatic and Consular Laws and Regulations, Washington, 1933, Vol. I, p. 211 Google Scholar). The Continental Congress of the United States, in several resolutions adopted from 1779 to 1781, called upon the States to provide for punishment of “offenses against the law of nations.” The Constitution gives Congress power “to define and punish piracies and felonies committed on the high seas and offenses against the law of nations”: Art. 1, see. 8, cl. 10. See Wright, Q., The Enforcement of International Law Through Municipal Law in the United States, Urbana, 1916, p. 221 Google Scholar.

67 In re Henfield, 1793. Fed. Cas. 6360; Moore, Digest, Vol. 7, p. 880; U. S. vs. Ravara, 1793, 2 Dall. 297, Moore, Digest, Vol. 5, p. 65; Wright, Q., Control of American Foreign Relations, New York, 1922, pp. 196-7Google Scholar.

68 U. S. vs. Hudson, 7 Cranch 32 ; U. S. vs. Coolidge, 1 Wheat. 415 ; Wharton, Criminal Law, Vol. 1, sec. 254; Q. Wright, Control of American Foreign Relations, pp. 197-8.

69 U. S. Criminal Code, 1909, sec. 290; U. S. vs. Smith, 1820, 5 Wheat. 153, 161-2, Hackworth, Digest, Vol. 2, p. 685.

70 Res Publica vs. Delongchamps, 1 Dall. 111, Moore, Digest, Vol. 4, p. 622 ; Sec. of State Bayard to Mr. Harris, April 2, 1885, Moore, Digest, Vol. 2, p. 432; Q. Wright, Control of American Foreign Relations, pp. 177-9.

71 Travers, Maurice, Le droit penal international, Paris, 1920-4, 6 vols.Google Scholar, de Vabres, Donnedieu, Les principes modernes du droit penal international, Paris, 1928 Google Scholar; Trainin, , Hitlerite Responsibility under Criminal Law, New York, 1945 Google Scholar; Cowles, “Universality of Jurisdiction over War Crimes,” as cited; Harvard Research, Piracy, this Journal, Vol. 26 (1932), Supplement, pp. 752-3.

72 For texts of resolutions, see this Journal, Vol. 29 (1935), Supplement, pp. 641-5.

73 Same, pp. 476-7, 569-72.

74 If an interest is “protected by international law” every state is obliged by international law not to authorize, and to take due diligence within its jurisdiction to prevent, acts which would violate that interest. Consequently the individual who commits such an act enjoys no general immunity on the ground that he acted in pursuance of a lawful act of state. See U. S. vs. Arjona, 1887, 120 U. S. 479, Moore, Digest, Vol. 1, p. 61; Donnedieu de Vabres, pp. 143-4; Trainin, pp. 26, 32, 41; Q. Wright, Study of War, Chicago, 1942, pp. 912, 1345; and “War Criminals,” this Journal Vol. 39 (1945), pp. 279-84.

75 Same, pp. 280 ff.

76 Same, pp. 274 ff, 282 ff.

77 See discussion on The Tribunal’s Jurisdiction, above; on the Geneva Conventions on Terrorism and an International Criminal Court, 1937, see Hudson, International Legislation, Vol. 7, pp. 862, 878, and International Tribunals, Washington, 1944, p. 183.

78 Harvard Research, Extradition, this Journal, Vol. 29 (1935), Supplement, pp. 32 ff.

79 For list of offenses mentioned in extradition treaties see same, pp. 244 ff.

80 Same, Arts. 5, 6, pp. 107-122.

81 Statute, International Court of Justice, Art. 38.

82 Stephen, J. F., Digest of Criminal Law, 1877, Sec. 160 Google Scholar, quoted by Wharton, Francis. A Treatise on Criminal Law, Philadelphia, 1880 (8th ed.), Sec. 14, Vol. 1, p. 19 Google Scholar; Stephen, , General View of the Criminal Law of England, London, 1863, pp. 32 ff. Google Scholar; Holland, T. E., Jurisprudence, Oxford, 1910 (11th ed.), p. 66 Google Scholar, quoting Willes, J., in Millar vs. Taylor, 4 Burr. 2312: “Justice, moral fitness, and public convenience, when applied to a new subject, make common law without a precedent.” For meaning of the proposition that international law is part of the common law see Picciotto, Cyril M., The Relation of International Law to the Law of England and of the United States, London, 1915, pp. 75 Google Scholar ff.; Q. Wright, Control of American Foreign Relation, pp. 171, 196.

83 Wharton, Sec. 29, Vol. I, pp. 41-2.

84 Judgment, p. 219.

85 “War Crimes under International Law,” in Law Quarterly Review, Vol. 62 (1946), pp. 40, 51. To similar effect Mr. Justice Jackson said, in his opening address at Nuremberg: “The fact is that when the law evolves by the case method, as did the Common Law and as international law must do if it is to advance at all, it advances at the expense of those who wrongly guessed the law and learned too late their error. The law, so far as international law can be decreed, had been clearly pronounced when these acts took place”: Record, p. 166.

86 Ex parte Quirin, 1942, 317 U. S. 1; In re Yamashita, 1946, 66 Sup. Ct. 340; Q. Wright, War Criminals, this Journal, Vol. 39 (1945), pp. 274 ff.

87 Some belligerents in the war were not parties to the Hague Convention on Land Warfare but the Tribunal considered it unnecessary to consider the effect of the “general participation clause” in this convention because “by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war”: Judgment, p. 248.

88 The defendants argued that Germany was not bound by the law of war in certain territories because they had been completely subjugated. The Tribunal suggested a doubt whether “subjugation” resulting from the crime of aggressive war could give any rights to the aggressor but rejected the argument on the ground that subjugation could never apply so long as “there was an army in the field attempting to restore the occupied countries to their true owners.” The doctrine could not, therefore, apply to countries occupied after September, 1939, and as to countries occupied earlier the Tribunal pointed out that Bohemia and Moravia had not been annexed but merely made protectorates; consequently, after the war began in September, 1939, Germany was at war with these countries. The Tribunal did not make clear the position of Austria.

89 Doenitz and Raeder were not held liable for unlimited submarine warfare against British vessels, which were under order to attack, nor for any submarine activity after the United States began to engage in unlimited submarine warfare in the Pacific as testified by Admiral Nimitz: Judgment, pp. 304, 305, 308. None of the defendants had been indicted for terror bombing of cities, a practice indulged in by all belligerents.

90 Judgment, p. 248.

91 Stowell, E. C., Intervention in International Law, Washington, 1921, pp. 51 Google Scholar ff.

92 Resolution of the Council of the League of Nations, 1937, concerning conditions in Spain.

93 E. M. Borchard, “The Minimum Standard in the Treatment of Aliens,” in American Society of International Law, Proceedings, 1939, p. 61; Harvard Research, Responsibility of States, Arts. 7-13, this Journal, Vol. 23 (1929), Supplement, pp. 133-5.

94 International. Law of the Future, 1944, Principle 2, pp. 44-48 ; Q. Wright, “Human Rights and the World Order,” in International Conciliation, No. 389 (April, 1943), pp. 238 ff.; H. Lauterpacht, An International Bill of the Bights of Man, New York, 1945.

95 Work cited, Sec. 285.

96 This was made clear by a supplementary agreement of the Powers on Oct. 6, 1945, conforming the English and French to the Russian text of the Charter by substituting a comma for the semi-colon which originally appeared after the word “war” in Art. 6: U. S. Executive Agreement Series No. 472, pp. 4, 25, 45. See also Jacob Robinson, “The Nuremberg Judgment, Crimes against Humanity,” in Institute of Jewish Affairs, Congress Weekly, Oct. 25, 1946.

97 Judgment, p. 248.

98 Thus persons who, before Sept. 1, 1939, ceased to be members of organizations found to be criminal because of participation in war crimes or crimes against humanity, were excluded from the group declared criminal : Judgment, pp. 256, 262, 266-267.

99 Wilson, G. G., International Law, St. Paul, 1939 (3rd ed.), p. 41 Google Scholar; Q. Wright, “The Bombardment of Damascus,” this Journal, Vol. 20 (1926), p. 270; Harvard Research, Aggression, Art. 14, this Journal, Vol. 33 (1939), Supplement, p. 905.

100 Judgment, p. 249.

101 It dealt with the arguments which had been presented by defendants’ counsel, emphasizing the sovereignty of states under international law, the right to resort to war traditionally deduced from that sovereignty, and the immunity of individuals acting in pursuance of an “act of state.” It was contended that these principles had not been modified by the Pact of Paris or any other instrument because these agreements had become obsolete through non-observance in practice. International law, therefore, did not make resort to aggressive war illegal, much less an individual crime when the acts charged were committed. In view of this the Charter should be interpreted so as to give effect to the principle of justice, nullum crimen sine lege (argument by Jahrreiss, Counsel for Jodl, July 4, 1946, Record, pp. 12903-50). It was argued that the Tribunal was free to make such a construction and in fact was obliged to judge according to law rather than expediency (argument by Stahmer, Counsel for Goering, July 4, 1946, Record, pp. 12954-68). See also argument by Horn, Counsel for Eibbentrop, who contended that there was no generally accepted definition of “aggressive war” nor an institution for determining it and that the Soviet-Finnish hostilities of 1939 indicated that the effort to outlaw aggressive war had been abandoned (Record, July 5, 1946, pp. 13046-67). These arguments were answered in general by Mr. Justice Jackson who, in his concluding argument, emphasized the clear evidence of planning aggressive war by the defendants, the absence of any justification of necessary self defence, the absence of justification in superior orders of Hitler, and the propriety of assuming knowledge of the plan from the defendant’s position and acts (Record, July 26, 1946, p. 14371). Sir Hartley Shawcross in his final address answered the defendants arguments in detail insisting that the Pact of Paris made aggressive war a crime, that this Pact continued valid in spite of some violations because the success of crime does not change the law, that the Pact was not invalidated by the reservations of self defense because self judgment on the necessity of self defense was permissible only in first instance and ultimate judgment must always be by an international procedure, that sovereignty did not imply superiority to international law, that international law imposes certain duties on individuals, that “acts of state do not confer immunities to commit crime, and that superior orders could give no immunity for acts which every one knew were contrary to the law of nature of which the law of nations was a part”: Record, July 26, 1946, pp. 14442-51.

102 U. S. vs. Arjona, 1887, 120 U. S. 479, Moore, Digest, Vol. 1, p. 61; U. S. vs. White, 1886, 27 Fed. 200. In the following cases chiefs, or other high officers, of state were tried by judicial or political procedures for initiating or contributing to the initiation of aggressive war : in antiquity, Aristonicus, Jugurtha, Artabasdus (Grotius, work cited, Bk. II, c. xxi, Sec. 4; Bk. Ill, c. xi, Secs. 7, 3, Carnegie ed., pp. 527, 733); in the middle ages, Henry the Lion, 1180; John Lackland, 1202; Otto von Wittelsbach, 1208; Conradin of Suabia, 1268; Robert of Anjou, King of Naples, 1313 (Albert Levy, “Criminal Responsibility of Individuals and International Law,” in University of Chicago Law Review, Vol. 12 (1945), p. 319) ; Sir Peter of Hagenbach, 1474 (Georg Schwarzenberger, in Manchester Guardian, Sept. 28, 1946); in modern times, Mary Queen of Scots, 1568; Charles I of England, 1649; Lords Portland, Sommers, Oxford, and Halifax, 1700; Napoleon Bonaparte, 1815; Kaiser Wilhelm II, 1919 (indicted but not tried) (see Levy, as cited, and Q. Wright, “Legal Liability of the Kaiser,” pp. 120 ff.). On distinction between international responsibility of individuals for starting wars, responsibility of states for failure to punish acts productive of wars, and responsibility of states for initiating aggressive wars, see Q. Wright, “The Outlawry of War,” in this Journal, Vol. 19 (1925), pp. 78 ff.

103 Law Quarterly Review, Vol. 62 (1946), pp. 50-51.

104 Record, pp. 70-71.

105 Such an argument was deduced by S. O. Levinson, the originator of the “outlawry of war” movement from the Pact. See Stoner, John E., S. O. Levinson and the Pact of Paris, Chicago, 1943, pp. 196, 209Google Scholar; Q. Wright, “War Criminals,” in this Journal, Vol. 39 (1945), p. 282.

106 Record, Dec. 4, 1945, p. 832.

107 Same, pp. 834-5.

108 Sir Hartley stated that Tribunals “have held that a state may be bound to pay what is in effect penal demands” referring to the I’m Alone case between the United States and Canada in 1935 in which damages which may have been punitive were awarded against the United States with concurrence of the American member of the Tribunal ( Whiteman, Marjorie M., Damages in International Law, Washington, 1937, Vol. 1, p. 154 Google Scholar). He also referred to the “sanctions” article of the League of Nations Covenant and to a statement by Dr. Lushington, an English admiralty judge of the mid-nineteenth century, that a state might be a pirate (Record, Dec. 4, 1945, p. 833). Other instances might be cited and certainly early writers on international law developed the concept of the “criminal state” (Grotius, Bk. II, c. xx, Sec. 38; c. xxi; Carnegie ed., pp. 502, 522 ff.; Van Volenhoven, C., The Three Stages in the Evolution of the Law of Nations, The Hague, 1919, pp. 8 CrossRefGoogle Scholar ff.), but the prevailing view has been that state responsibility is exclusively civil in character (Case of the Lusitania, U. S.-German mixed Commission, pp. 25, 27 ; Whiteman, Vol. 1, pp. 710 ff., Vol. 3, p. 1874 ; Eagleton, Clyde, The Responsibility of States in International Law, New York, 1928, pp. 189-90Google Scholar; Oppenheim, , International Law, Vol. I, Sec. 151Google Scholar; Keitzer, L., Réparation comme conséquence de l’acte illicite en Droit international, Paris, 1938, pp. 209 Google Scholar ff.). “At no time,” writes Judge Manley O. Hudson, “has any authoritative formulation of international law been adopted which would brand specific state conduct as criminal, and no international tribunal has ever been given jurisdiction to find a state guilty of a crime” (International Tribunals, p. 180). On reluctance to ascribe criminal liability to corporate bodies see Wharton, Criminal Law, Sec. 91; Wright, A Study of War, pp. 911-15.

109 Lord Wright emphasized the different liability of the state and the individual for aggressive war; above, note 103.

110 This resembles the definition proposed in the Soviet treaties of 1933, referred to by Mr. Justice Jackson with approval (Record, p. 168). See also Q. Wright, “The Meaning of the Pact of Paris,” this Journal, Vol. 27 (1933), p. 39; “The Concept of Aggression in International Law,” in same, Vol. 29 (1935), p. 373; Harvard Research, Aggression, in same, Vol. 33 (1939), Supplement, pp. 847, 871). The defense attempted to prove that Austria had consented to the Nazi occupation in 1938 (Judgment, p. 194) and that the attack on Norway in 1940 was justified in defense against a planned British attack, and that on the Soviet Union in 1941 by danger that that country would attack Germany. But the Tribunal found that the evidence did not support these contentions. Since the wars began with Nazi aggression it was assumed that the United Nations were all justified in resorting to hostilities in individual or collective defense. It would, therefore, seem that the Soviet Government would have been justified in initiating hostilities against Germany if it did so as a measure of “collective defense,” that is in aid of the states already the victims of Nazi aggression.

111 Judgment, pp. 189-213.

112 Judgment, p. 222 and interrogation by Judge Biddle, Record, p. 5266.

113 Judgment, pp. 300-301.

114 Same, pp. 327-328.

115 Same, p. 224.

116 Same, pp. 189, 222.

117 Same, p. 222.

118 Same, p. 222.

119 Same, p. 223.

120 Same, p. 186.

121 Same, pp. 302, 318.

122 Same, p. 250.

123 Same, p. 251.

124 Same, p. 251.

125 Same, p. 251.

126 Same, pp. 256, 262, 266.

127 Same.

128 Same, p. 266.

129 Moore, Digest, Vol. 2, p. 25; Q. Wright, “War Criminals,” this Journal, Vol. 39 (1945), p. 271; Wharton, Criminal Law, Sec. 284.

130 Wright, “War Criminals,” p. 266; Wharton, Digest of International Law, Vol. 1, p. 67.

131 Ex parte Quirin, 1942, 317 U. S. 1.

132 2 Stephen, Digest of Criminal Law, Art. 202, quoted in Wharton, Criminal Law, Sec. 94, Vol. 1, p. 130. See also case of Dithmar and Boldt, German Eeichsgericht, 1921, this Journal, Vol. 16 (1925), p. 708.

133 Judgment, p. 221.

134 State Department, Trial of Japanese War Criminals, 1946.

135 Above, note 5.

136 Department of State Bulletin, Vol. 15, No. 6 (Nov. 24, 1946), p. 956.

137 Same, pp. 954, 957.