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The Nuremberg Trial and International Law*

Published online by Cambridge University Press:  20 April 2017

George A. Finch
George A. Finch*
Affiliation:
Editor-in-Chief
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Extract

Retribution for the shocking crimes and atrocities committed by the enemy during World War II was made imperative by the overwhelming demands emanating from the public conscience throughout the civilized world. Statesmen and jurists realized that another failure to vindicate the law such as followed World War I would prove their incapacity to make progress in strengthening the international law of the future.1

Type
Research Article
Information
American Journal of International Law , Volume 41 , Issue 1 , January 1947 , pp. 20 - 37
Copyright
Copyright © American Society of International Law 1947

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Footnotes

*

Bevised, enlarged, and annotated version of an address delivered at Atlantic City, N. J., Oct. 29, 1946, before the Section of International and Comparative Law of the American Bar Association, as Chairman of the Committee on Punishment of War Criminals.

References

1 See the author’s “Retribution for War Crimes,” in this Journal, Vol. 37 (1943), p. 81.

2 The complete official text of the judgment is printed below, pp. 172-333. It gives all the relevant facts.

3 Printed in this Journal, Supplement, Vol. 39 (1945), p. 258.

4 Same, p. 257.

5 Case of the German Saboteurs, Ex parte Quirin (1942), 317 U. S. 1; this Journal, Vol. 37 (1943), p. 152. See “Universality of Jurisdiction over War Crimes,” by Cowles, Willard B., in California Law Review, Vol. 33 (1945), pp. 177 218 CrossRefGoogle Scholar.

6 See the author’s editorial “Superior Orders and War Crimes,” in this Journal, Vol. 15 (1921), p. 440.

7 “Trial of War Criminals by Military Tribunals,” in American Bar Association Journal, Vol. 30, No. 6 (June, 1944), p. 330.

8 See “The Legal Status of Germany according to the Declaration of Berlin,” by Hans Kelsen, this Journal, Vol. 39 (1945), p. 518, and “The Legal Status of Germany,” by Egon Schwelb, in same, Vol. 40 (1946), p. 811. For General Eisenhower’s proclamation establishing military government in Germany and vesting supreme legislative, judicial, and executive authority in the Supreme Commander of the Allied Expeditionary Forces, see “American Military Government Court in Germany,” by E. E. Nobleman, in same, p. 803.

9 Supreme Court of the United States in Vilas v. City of Manila (1911), 220 U. S. 345, affirming Alvarez y Sanchez v. United States, 216 U. S. 167, and C. E. I. & P. By. Co. v. MeGlinn, 114 U. S. 542.

10 (1799) 1 C. Rob. 135; Hudson, Cases on International Law (1936), p. 1395; Scott, Cases on International Law (1922), p. 1070.

11 This clause was part of Art. 231 of the Treaty of Versailles and should not be confused with Art. 227 which publicly arraigned the German Kaiser “for a supreme offense against international morality and the sanctity of treaties,” or with Art. 228 which provided punishment by Allied military tribunals of acts “in violation of the laws and customs of war.” See the author’s editorial entitled “The settlement of the reparation problem,” in this Journal, Vol. 24 (1930), p. 339.

12 See the writer’s letters in The New York Times of Oct. 22 and Nov. 12, 1944, urging specific provisions to this end in the Charter of the United Nations then under public discussion.

13 “The Munich Settlement and International Law,” this Journal, Vol. 33 (1939), p. 12 at pp. 28-29.

14 For the text of the Russo-German pact of Aug. 23, 1939, see this Journal, Vol. 35 (1941), Supplement, p. 36.

15 For these and additional facts concerning Soviet Russia ‘s aggression against Poland, see editorial entitled “The Polish Boundary Question,” by Lester H. Woolsey, in this Journal, Vol. 38 (1944), p. 441.

16 See the first proclamation of the President proclaiming the neutrality of the United States after the outbreak of the war over Poland No. 2348, Sept. 5, 1939, 54 U. S. Statutes at Large, Pt. 2, p. 2629; this Journal, Supplement, Vol. 34 (1940), p. 21. Identical proclamations were issued as additional countries became involved, on Sept. 8 and 10, 1939, April 25, May 11, June 10, and Nov. 15, 1940. They are all published in the same volume of the Statutes at Large, pp. 2643, 2652, 2699, 2704, 2707, 2764.

17 For the text of Allied statements on this subject, see the author’s “Retribution for War Crimes,” cited above, note 1, and Manfred Lachs, War Crimes, London: Stevens & Sons; 1945, pp. 94-98. In Dr. Lachs’ collection of texts there is an aide memoire of the British Government issued August 6, 1942, stating that “in dealing with war criminals, whatever the Court, it should apply the laws already applicable and no special ad hoc law should be enacted” (p. 95). This seems to refute the argument that because the defendants were duly warned that they would be tried for war crimes, they were estopped from pleading the ex post facto character of the provisions of the London Agreement of August 8, 1945, enacting a special ad hoc law on the subject of crimes against peace.

18 This translation was in the possession of the American representatives who negotiated the agreement for the Charter of the International Military Tribunal. See “Background and Highlights of the Nuremberg Trials,” by Sidney S. Alderman, in I. C. C. Practitioners’ Journal, November, 1946, p. 106. A comprehensive review of the original Russian edition appeared in the American Bar Association Journal for July, 1945.

19 Trainin, work cited, p. 11.

20 Department of State Bulletin, Vol. XII, No. 311 (June 10, 1945), p. 1076.

21 Note to the French Ambassador, Feb. 27, 1928. Publication of the Department of State entitled Notes Exchanged Between the United States and Other Powers on the Subject of a Multilateral Treaty for the denunciation of War, Washington, Government Printing Office, 1928.

22 Identic notes of June 23, 1928, same, p. 33.

23 Misc. No. 12 (1929), Cmd. 3452; this Journal, Supplement, Vol. 25 (1931), pp. 89-90.

24 Statement of Hon. Henry L. Stimson made public Dec. 30, 1929, printed in this Journal, Supplement, Vol. 25 (1931), p. 90, note.

25 Address before the Inter-American Bar Association, Habana, Cuba, March 27, 1941. This Journal, Vol. 35 (1941), pp. 348-359.

26 This Journal, Vol. 31 (1937), p. 76, note.

27 Act of Aug. 31, 1935, 49 U. S. Stat. at L., Pt. 1, p. 1081; Proclamations Nos. 2141-2142, Oct. 5, 1935, the same, Pt. 2, pp. 3474-3476. Also in this Journal, Supplement, Vol. 30 (1936), pp. 58 and 65.

28 50 U. S. Stat. at L., Pt. 1, p. 121. This Journal, Supplement, Vol. 31 (1937), p. 147.

29 Secretary of State J. Q. Adams to Mr. Gallatin, May 19, 1818. Moore, International Law Digest, Vol. VII, p. 860.

30 Congressional Record, Vol. 85, Pt. 1, pp. 10-12. This Journal, Supplement, Vol. 34 (1940), p. 37-38.

31 54 U. S. Stat. at L., Pt. 1, p. 4. This Journal, Supplement, Vol. 34 (1940), p. 44.

32 Art. 227 of the Treaty of Versailles, referred to by the Nuremberg Tribunal, publicly arraigned the German Kaiser “for a supreme offence against international morality and the sanctity of treaties.” It directed the special tribunal, which was never in fact constituted, to be guided in its decision “by the highest motives of international policy.” It avoided any reference to law, national or international.

The writer ‘s attention has been called to the article by Mr. Georg Schwarzenberger on the so-called Breisach War Crime Trial of 1474. This involved the trial of Sir Peter of Hagenbach, the Governor of the fortified town of Breisach on the Upper Rhine. He had been installed by Duke Charles of Burgundy to take possession of the town after it had been pledged to Charles by the Archduke of Austria as financial security. The charges were in the nature of war crimes or crimes against humanity and did not involve crimes against peace as charged at Nuremberg. Manchester Guardian, Sept. 28, 1946.

33 For a discussion of the maxim Nulla poena sine lege in the United States and various other countries, see article by Jerome Hall in the Yale Law Journal, Vol. 47, No. 2 (December, 1937).

34 Fletcher v. Peck, 6 Cranch 138. A fuller definition was given by the Supreme Court in Calder v. Bull, 3 Dallas 386.

35 Judge Biddle’s report to the President cited below, footnote 36.

36 Ten days following this suggestion at Atlantic City on Oct. 29, the Hon. Francis Biddle, American Judge on the Nuremberg Tribunal, submitted his report to President Truman on Nov. 9, 1946, in which he said:

“The conclusions of Nürnberg may be ephemeral or may be significant. That depends on whether we now take the next step. It is not enough to set one great precedent that brands as criminal aggressive wars between nations. Clearer definition is needed.” He suggested that the time is opportune “for advancing the proposal that the United Nations as a whole reaffirm the principles of the Nurnberg Charter in the context of a general codification of offenses against the peace and security of mankind.” Such action, he said, “would perpetuate the vital principle that war of aggression is the supreme crime.”

In acknowledging receipt of Judge Biddle’s report, President Truman on Nov. 12 wrote to him that “the setting up of such a code as that which you recommend . . . deserves to be studied and weighed by the best legal minds the world over. It is a fitting task to be undertaken by the governments of the United Nations. ” Department of State Bulletin, Vol. 15, No. 386 (Nov. 24, 1946), pp. 954-957.

37 Department of State Publication No. 2349, Conference Series No. 71, p. 91.