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War Crimes by Enemy Nationals Administering Justice in Occupied Territory

Published online by Cambridge University Press:  20 April 2017

Alwyn V. Freeman
Alwyn V. Freeman*
Affiliation:
Of the Michigan Bar; formerly Assistant to the Legal Adviser, United States Department of State
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Extract

Shortly after termination of the now historic Nuremberg trial of Nazi Germany’s arch war criminals, formal proceedings were instituted against several other classes of major offenders against the laws of war in Western Europe. This second phase of the program included war crimes committed in S.S. laboratories, in the name of medical experimentation, and the socalled “economic” war crimes. Simultaneously with these proceedings preparations were made for still a third class of offenders to be brought to international justice, and it is this group which has recently been indicted. Here the charges are predicated upon illegal activity of enemy nationals engaged in administering justice in territories under military occupation, frequently involving the execution of inhabitants after a summary hearing, or after no trial at all. For the international lawyer this third category of war crimes contains many stimulating and significant elements. It raises highly challenging questions as to the extent to which criminal responsibility may be held to exist in cases where enemy nationals performing functions of a judicial or a quasi-judicial character have participated in the pronouncement and execution of sentences, including the death penalty, against nationals of the occupied areas.

Type
Research Article
Information
American Journal of International Law , Volume 41 , Issue 3 , July 1947 , pp. 579 - 610
Copyright
Copyright © American Society of International Law 1947

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References

1 Inasmuch as the Hague Regulations on military occupation are largely declaratory of customary international law as it had developed prior to World War I, the present writer is of the view that the principles which they embodied were applicable during that war irrespective of whether the “si omnes” clause (Article 2) rendered inoperative either the 1899 or the 1907 convention on land warfare because of the non-adherence thereto of all the belligerents. See Oppenheim, International Law, 6th ed., Vol. II, pp. 185–186. The judgment of the International Military Tribunal at Nuremberg expressly rejected the contrary view. Nazi Conspiracy and Aggression, Washington, 1947, p. 83.

2 War Department Technical Manual, TM 27–251, Treaties Governing Land Warfare, 7 Jan. 1944, pp. 15 ff.; Field Manual, FM 27–10, Rules of Land Warfare, pars. 282, 299, and 343; Malloy, Treaties & etc., Vol. 2, p. 2281 ff.

3 Scott, The Hague Conventions and Declarations of 1899 and 1907, pp. 101–102; Malloy, work cited, p. 2272.

4 Correspondence respecting the Conference at Brussels, Miscellaneous No. 1 (1874), p. 12. See also Actes de la Conférence de Bruxelles, Paris, 1874, p. 4.

5 Correspondence, Miscellaneous No. 1 (1875), p. 228; Actes de la Conférence, p. 58.

6 Same, p. 23.

7 Same, p. 61.

8 As cited.

9 As cited.

10 Baron Blanc took a similar view. Same, p. 49.

11 J. B. Scott, Proceedings of the Conference of 1899, p. 515. For an excellent discussion of the meaning of the phrase “unless absolutely prevented” see Schwenk in 54 Yale Law Journal (1945), pp. 399 ff. Mr. Schwenk’s article contains an exhaustive analysis of the occupant’s powers under Article 43.

12 Feilchenfeld, The International Economic Law of Belligerent Occupation, pp. 7, 110; Oppenheim, International Law, Vol. II, 6th ed., § 169; Spaight, War Rights on Land, p. 322; Fauchille, Droit International Public, Vol. II, p. 216; Kunz, Kriegsrecht und Neutralitötsrecht, p. 92; Ruiz Moreno, Guerra Terrestre y Aerea (1926), pp. 191–194.

13 Actes, pp. 35 and 39.

14 Oppenheim, work cited, § 169, pp. 342–343. Accord: Garner, International Law and the World War, Vol. II, p. 77; Pillet, Les Lois Actuelles le la Guerre, p. 243; Mérignhac, Le Droit des Gens et la Guerre de 1914, Vol. I, p. 355; Wheaton, International Law, 7th ed., Vol. II, p. 97. Bustamante y Sirven, Droit International Public, Vol. IV, p. 366.

15 Work cited, p. 244.

16 Droit International Public Positif, Vol. II, p. 290; italics supplied. Compare Feilchenfeld, p. 89: “* * * new laws * * * must be sufficiently justified.” The Russian military authorities, during their occupation of Turkish territory in 1877, reorganized the administration of justice in a very fundamental manner, to adapt it to the usual level of European customs then prevailing. Korovine justifies this action on the ground that the war had been waged precisely to free the Balkan area from the “archaic and intolerable forms of Turkish domination.” Internationalrechtliche Abhandlungen, Vol. III, p. 134.

The principle stated by De Louter was given application by the Office of the Judge Advocate General of the United States in an opinion rendered in 1945 holding that the United States, upon occupying Japan, could lawfully take such measures of education and public enlightenment as might be necessary to eliminate fanatical Japanese militarism, as this was not only one of the ends of the war, but would be necessary in the interest of the occupant’s security. Similar grounds were invoked to approve reforms in the administration of Japanese justice which would provide greater protection for the rights of an accused (Opinions of the Judge Advocate General, SPJGW 1945/270, 24 Feb. 1945). Furthermore, in an earlier opinion of that office it was held that changes in German law designed to destroy the privileged status of members of the Nazi party and the inferior position of the Jews come within this category (Same, SPJGW 1943/18261, 1 Jan. 1944).

17 Work cited, par. 331. Davidonis similarly contends that the abolishment of Fascism in Sicily and the occupied provinces of Italy during the Italian campaign constituted a violation of the Hague Regulations. “Some Problems of Military Government,” in American Political Science Review, Vol. 38 (1944), p. 467.

18 Work cited, p. 403.

19 Compare the authorities listed in Oppenheim, work cited, p. 184, note, and Magoon, Reports on the Law of Civil Government under Military Occupation, 1902, p. 15: “When a military government continues as an instrument of warfare, used to promote the objects of the invasion by weakening the enemy or strengthening the invader, its powers are practically boundless.” But New Orleans v. Steamship Co., 20 Wall. 387, 394, recognizes that limitations on this power exist in the laws and usages of war.

20 Hall, International Law, 7th ed., pp. 507–508, note.

21 As cited.

22 War Rights on Land, pp. 355–356.

23 As cited.

24 Work cited, p. 508.

25 Droit International Public, Vol. II, p. 226.

26 Spaight, work cited, p. 357.

27 International Law, 6th ed., Vol. II, p. 349.

28 Thus Fairman, Law of Martial Rule, p. 275.

29 International Law, Vol. II, p. 96. Also, Rolin, Le droit moderne de la guerre, Vol. I, p. 436, and compare Travers, Le droit pénal international, Vol. III, pp. 415 and ff.

30 Par. 364.

31 War Department Field Manual, FM 27–10.

32 International Law, 3rd ed., Vol. II, p. 439.

33 Droit International Public, Vol. II, pp. 227, 232. Accord: Jacomet, Les lois de la guerre continentale, Art. 77, who, however, admits an exception for cases involving injury to the security of the occupant’s army. For Eolin, unless the occupied territory is of an inferior civilization, there can never be an “absolute necessity” to modify either its civil judicial organization, or its penal laws, except where harsher measures are required for the protection of its troops. Work cited, p. 437. He consequently condemns the institution by Germany in Belgium during the last war of special courts to adjudicate the damage claims of German subjects. Under this view judges of the local criminal courts must be retained; arbitrary removal of civil causes to special courts would violate international law. Compare Holland, Laws of War on Land, p. 53.

34 “Fundamentalgesetzen der Gerechtigkeit beruhendes Urteil zu sprechen, nachdem sie vorher den Tatbestand, wenn auch nur summarisch, so doch unparteiisch geprüft, und dem Angeklagten eine freie Verteidigung gestattet haben.” Kriegsgeschichtliche Einzelschriften, 1902, p. 65.

35 See par. 6 of the Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, 24 April 1863; President McKinley’s Letter of Instructions to General Shaf ter, 18 July 1898; Moore, Digest of International Law, Vol. 7, p. 262; Magoon, The Law of Civil Government under Military Occupation, p. 198; Ketchum v. Buckley, 99 U.S. 188; and for the present rule, FM 27–10, Rules of Land Warfare, par. 285.

36 International Law, 2nd ed., § 690, and compare Korovine’s extreme view in Internationalrechtliche Abhandlungen, Vol. III, p. 134.

37 The right of an occupant to control or close the local criminal and civil courts, and to modify or suspend local criminal and civil laws, is affirmed in the U.S. Manual of Military Government, 22 Dec. 1943, FM 27–5, OPNAV 50–3, p. 16.

38 Smith, Military Government, 1920, pp. 59–60; Birkhimer, Military Government and Martial Law, pp. 138, 147; Winthrop, Military Law and Precedents, 2nd ed., p. 832; and Garner, International Law and the World War, Vol. II, p. 85, note.

39 9 Wall., 129 (1869).

40 U. S. v. Reiter, Fed. Cases, No. 16146 (1865), recognized the jurisdiction of this provisional court to try offenses of murder and arson committed against Louisiana law. See also State ex rel. Kam v. Hall, 65 Tenn. 3 (1873); Pennywit v. Eaton, 15 Wall. 382 (1872); and Burke v. Miltenberger, 9 Wall. 519 (1873). Louisiana ex rel. O’Hara v. Heath (20 Louisiana Annual, 518 (1868)) affirmed the military commander’s power to control the exercise of criminal jurisdiction of the local civil tribunals.

41 Magoon, work cited, pp. 14, 198; Fauchille, work cited, pp. 233–234.

42 Gen. Orders No. 1, 18 Oct. 1898; Davis, Report on Civil Affairs of Puerto Rico, p. 89; and Gen. Orders No. 8, 4 Nov. 1898, ibid., p. 90.

43 See Capo-Rodriguez, in this Journal, Vol. 9 (1915), pp. 883, 905.

44 Gen. Orders No. 19, 2 Dec. 1898, Davis’ Report, p. 90.

45 Gen. Orders No. 4, 27 Oct. 1898, Davis’ Report, as cited.

46 Gen. Orders No. 27, 8 Dec. 1898, Davis’ Report, pp. 93, 210.

47 Ex Parte Ortiz, 100 Fed. 955.

48 Gen. Order No. 88 dated June 27, 1899. Davis’ Report, p. 117. And see the Annual Report of the Military Governor of Puerto Rico on Civil Affairs, part 13, 1902, pp. 65 ff.

49 Spaight, work cited, p. 357.

50 Ariga, La Guerre Russo-Japonaise et le Droit International, p. 388, and see Fauchille, Droit International Public, Vol. II, § 1219. The Germans frequently, in 1914–1918, issued analogous proclamations such as that of 1916 at Noyon, under which towns and villages were to be fined in case fire-arms were found in the possession of any inhabitant after a certain date. Garner, work cited, p. 154. For German practice on this question In 1870–1871, see Spaight, work cited, p. 409.

51 Smith, AA, Military Government, 1920, pp. 66–72 Google Scholar; General Funston’s Report on Military Government, 30 June 1914, pp. 2 ff. And see U. S. For. Rel., 1914, pp. 481 ff., 600 ff. President Lincoln’s Executive Order of 20 Oct. 1862, establishing the Provisional Court in Louisiana, recited that “the civil institutions of the State, including the judiciary and judicial authorities of the Union” having been swept away, “it has become necessary * * * that there shall be some judicial tribunal existing there capable of administering justice.” See Burke v. Miltenberger, 19 Wall., 1873, p. 519.

52 Spaight, work cited, p. 357.

53 Fauchille, work cited, pp. 232–3; Calvo, Droit International Public, Vol. 4, §§ 2186 ff.; Spaight, work cited, pp. 358–359. The failure of judicial organization in Thessaly during the Turco-Greek war of 1897 is a further example. Fauchille, as cited, and generally Cybichowski, “Das völkerrechtliche Okkupationsrecht,” in Zeitschrift für Völkerrecht (1934), Vol. 18, pp. 295 ff.

54 Above, note 3.

55 Above, note 34.

56 International Law and the World War, Vol. II, p. 88. For other examples, see Wheaton, International Law, 7th ed., Vol. II, pp. 242–243.

57 Decision in International Law Notes, Sept. 1916. See Clunet, Journal de Droit International, Vol. 44, pp. 1809 ff., and De Visscher in same, Vol. 45, pp. 1090 ff. Accord: Westlake, International Law, Vol. 2, p. 97; Garner, work cited, Vol. II, p. 89, and see pp. 82–84 for the same writer’s view that these special courts and the withdrawal of a large part of their ordinary jurisdiction from the Belgian courts was an infraction of Article 43. See also Fauchille, work cited, § 1166, Mérignhac, Le Droit des Gens et la Guerre de 1914, Vol. I, pp. 387–388.

58 While this extension of German criminal law has been criticized (De Laval in 52 American Law Review, 235 ff.; Dumont-Wilden, Du terrorisme judiciaire en Pays d’Occupation Allemande, Clunet, work cited, Vol. 44, pp. 516 ff.), Garner implies that it may not have been objectionable under international law (work cited, p. 89, note).

59 Ordinance No. 2, Military Government Regulations (U. S. Zone), Title 23, sec. 215 (MGR 23–215).

60 Garner, work cited, pp. 88 ff.; Wunderlich, Der Belgische Justizstreik, 1930, passim; Oppenheim, International Law, Vol. II, 6th ed., p. 350, note; Mérignhac, Le Droit des Gens et la Guerre de 1914, Vol. I, pp. 381 ff.; Wheaton, International Law, 7th ed., Vol. II, p. 245.

61 See Garner, work cited, pp. 97 ff.; Oppenheim, International Law, 6th ed., Vol. II, p. 457, note; Kunz, Kriegsrecht und Neutralitötsrecht, p. 97, note. For diplomatic correspondence concerning action of the American Legation in Belgium on Miss Cavell’s behalf, U. S. For. Rel, “The Lansing Papers,” 1941–1920, Vol. I, pp. 48–67.

62 Work cited, p. 100; and see Mérignhac, work cited, pp. 378–388, who describes the institution of special tribunals as a kind of “judicial terrorism” under which the penal provisions were unknown, and the decisions arbitrary and unrelated to military security.

63 Freeman, International Responsibility of States for Denial of Justice, pp. 277 ff.

64 Clunet, Journal du Droit International, Vol. 46, p. 770.

65 Since the military tribunals of the armies which occupied Germany during 1918–1923 were regarded as foreign courts, neither they nor the German courts themselves recognized the plea of double jeopardy as a defense. For cases dealing with this problem, see Fraenkel, Military Occupation and the Rule of Law, p. 164, and in particular, a decision of the Reichsgericht of Feb. 23, 1920, holding that the same criminal act was a violation of both German and occupational law.

66 Lauterpacht, Annual Digest of Public International Law Cases (cited hereafter as Annual Digest), 1919–1922, Case No. 334; Hackworth, Digest of International Law, Vol. VI, p. 397. In Milaire c. Etat allemand, the Germano-Belgian Mixed Arbitral Tribunal “queried” whether the German Government could have introduced its law on responsibility for labor accidents into Belgium, in abrogation of the local law of 1903, without violating Article 43. Recueil des Décisions des Tribunaux Arbitraux Mixtes, Vol. II, pp. 715, 719; Hackworth, work cited, p. 394.

67 Annual Digest, 1925–1926, Case No. 361; Hackworth, Digest, Vol. VI, pp. 395–396. See also Rolin, Le droit moderne de la guerre, Vol. 1, p. 438. Compare Commune de Grace-Berleur c. Charbonnages de Gosson Lagasse et Consorts, Annual Digest, 1919–1922, Case No. 326.

68 Cillekens c. De Haas, work cited, Case No. 336; Hackworth, work cited, p. 395. Compare Mathot c. Longué (German order prohibiting sale of vegetables before they were grown held illegal by Liège Court of Appeal, as Art. 43 gave occupant no right to legislate. Annual Digest, 1919–1922, Case No. 329, and the note at p. 465 to the effect that this ruling is contrary to most others); and Malines c. Société Central … du Gaz (occupant’s increase in cost of gas held justified by population’s wartime needs), Annual Digest, 1925–1926, Case No. 362.

69 Antanas and Jadviga Gumbiai v. Bernataviciai, 6 June 1929, Annual Digest, 1929–1930, Case No. 293.

70 Annual Digest, 1919–1922, Case No. 335; Hackworth, Digest, Vol. VI, pp. 397–398. See also Fraenkel, Military Occupation and the Rule of Law, 1944, pp. 165–166. Compare the position of the Supreme Administrative Court of Czechoslovakia (1928), which observed that although “application of the laws of the occupying State do not * * * extend automatically to the occupied territory,” the occupant, to maintain and safe guard his army or for prosecuting the war, could extend his own national law to the area occupied. Annual Digest, 1927–1928, Case No. 378; Hackworth, work cited, p. 400. Accord: Occupation of Cavalla case, Annual Digest, 1929–1930, Case No. 292. In Republic v. Oficynski, the Polish Supreme Court construed Article 43 as prohibiting the occupant from trying by his own courts and within his own territory, crimes committed in occupied territory. Annual Digest, 1919–1922, Case No. 338.

The German practice in occupied Poland (1915–1916) of effecting penal confiscations without judicial proceedings is discussed by Sachocki, in Revue Général de Droit International Public, Vol. XXXV (1928), pp. 411 ff.

71 Review of the Civil Administration of Mesopotamia, Cmd. 1061 (1920), p. 14.

72 In 1919 the system of justice in Baghdad was extended to Basrah: same, p. 96.

73 Same, p. 95.

74 British Yearbook of International Law, 1920–1921, p. 147.

75 Bentwich, work cited, p. 146. Compare the decision of the Belgian Cour de Cassation, cited in note 57 above. In Ochoa v. Hernandez y Morales, 230 U. S. (1913), the United States Supreme Court held that a judicial order of General Henry, the military governor of Puerto Bico in 1899, which retroactively reduced the prescriptive period of land ownership from twenty years to six, was a deprivation of property without due process. Said the court: “* * * our government was bound by * * * international law to * * * secure public safety, social order, and the guarantees of private property” (p. 159). United States military forces in occupation of California introduced the custom of transferring real estate by deeds commonly used in the United States, suspending the Spanish form of conveyancing. Halleck’s International Law, 4th ed., Vol. II, p. 484.

76 Smith, Military Government, 1920, p. 57.

77 American, Military Government of Occupied Germany, 1918–1922 (“The Hunt Report”), pp. 45–48.

78 Same, p. 46.

79 Smith, work cited, p. 31; also General Pershing’s proclamation to the inhabitants, Dec. 9, 1918: The Hunt Report, p. 31.

80 General Orders No. 225, Dec. 10, 1918.

81 The Hunt Report, p. 92.

82 Only a few cases were tried by commissions. Smith, work cited, p. 36.

83 The Hunt Report, aa cited.

84 Fraenkel, Military Occupation and the Rule of Law, p. 22.

85 Same, p. 167; Niboyet, in Revue de droit international privé et de droit international, Vol. 16, 1920, p. 51. See Fraenkel, work cited, pp. 167–171, for practice during the peace period under the Rhineland Agreement.

For limitations upon the jurisdiction of the Japanese courts with respect to United Nations Nationals generally, see the policy statement adopted by the Far Eastern Commission on August 15, 1946, in Department of State Bulletin, Vol. 25, No. 375, September 8, 1946, p. 455.

86 The Hunt Report, p. 289. The right of local officials to extradite persons for the purpose of trial by courts outside the occupied area in treason cases was likewise denied. Same, p. 289.

87 See above, note 60, and for the German position, Kohler, The Administration of the Occupied Territories, Vol. I (Belgium), 1942, p. 68.

88 Fraenkel, work cited, p. 44. “Coblence was under American jurisdiction and therefore we could not recognize treason against an enemy nation as a crime in our own country”: The Hunt Report, p. 289.

89 De Jaer, L’arme belge d’occupation et son droit de juridiction, Liège, 1928, p. 72.

90 Fraenkel, work cited, p. 24.

91 In the town of Kell on three successive nights rocks were thrown at American soldiers and the culprits could not be discovered. All inhabitants were ordered to remain in their houses between 7:00 P.M. and daybreak the next morning. After two weeks no further trouble was experienced. But when a French liaison officer whose suitcase was stolen from an automobile applied to the Civil Affairs Department to have a collective fine of 300 francs levied on the town to cover his loss, the Department promptly replied that such a levy would be improper. Smith, work cited, pp. 22–23.

92 Lemkin, Axis Rule in Occupied Europe, pp. 26–27.

93 Oppenheim, International Law, 6th ed., Vol. II, p. 343. In Poland the administrative courts which dealt with complaints against administrative abuses were suppressed. Segal, Nazi Rule in Poland (1943), p. 23. For measures taken by Germany in annexing portions of occupied Belgium (Rupen, Malmédy, Moresnet) and France (Alsace, Lorraine), see The Trial of German Major War Criminals, Proceedings at Nuremberg, London, 1946, Part 5, pp. 342 and ff.

94 See, generally, Preuss, in Journal of the American Institute of Criminal Lam, 1936, p. 857, and also in this Journal, Vol. 29 (1935), p. 217. The original German act was dated June 28, 1935, and was published in the Reichsgesetzblatt, Teil I, p. 844, Art. I.

95 Case of the Danzig Decrees, Series A/B, No. 65, p. 51; Hudson, World Court Reports, Vol. III, p. 513.

96 See Freeman, International Responsibility of States for Denial of Justice, pp. 551–552; Lemkin, work cited, p. 28, note.

97 Axis Rule in Occupied Europe, pp. 27–31.

98 Opinions of The Judge Advocate General, SPJGW 1945/2849, 6 March 1945, and Wolff, “Criminal Justice in Germany,” 43 Michigan Law Review, 1944, pp. 171–173.

99 For an exposition of German judicial measures in occupied territory, see generally, Lemkin, Axis Rule in Occupied Europe, pp. 33–35, and the same writer’s comments in The Judge Advocate Journal, Vol. II (1945), p. 10.

100 See above, note 2. In the tribunals employed by the Japanese during the Russo-Japanese war, the accused was given means to defend himself, but contrary to the ordinary rule his guilt was assumed in the absence of proof of innocence. Ariga, La Guerre Russo-Japponaise et le Droit International, p. 385. Spaight considers this transferring of the onus of proving innocence to be a “necessary principle of martial law justice,” justified in the interest of law and order. War Rights on Land, p. 349. Sed quaere.

101 Segal, Nazi Rule in Poland, p. 19.

102 Work cited, p. 20.

103 See Dept. of State Bulletin, Vol. XV (1946), p. 455, for similar Allied practice in Japan.

104 Paragraph 3. Italy Gazette, p. 1.

105 Article IV. Same, p. 3.

106 Smith in British Yearbook, Vol. XXI (1944), p. 153.

107 See (b), below.

108 Holmes, in Proceedings of the American Society of International Law, 1945, p. 24.

109 Italy Gazette, p. 37.

110 Italy Gazette, p. 25. The corporative system was abolished in Sicily by an order of Oct. 1, 1943. United States and Italy, Washington, 1946, p. 225.

111 Mil. Govt.—Germany, Supreme Commander’s Area of Control (hereafter designated as “S.C.A.C.”), Ordinance No. 2, “Military Government Courts,” MGR 23–215, Article V. See also Military Government Gazette, 21st Army Group Area of Control, No. 2, p. 7.

112 Ordinance No. 2, Article VI, as cited.

113 Article VII.

114 S.C.A.C., Proclamation No. 1, MGR 23–200, Section III. Law No. 2 subsequently abolished the Volksgerichtsbof, the Sondergerichte, and NSDAP Courts. MGR 23–202.

115 Ordinance No. 1, “Crimes and Offenses,” S.C.A.C., MGR 23–214, Articles I and II. See also the Military Government Gazette, as cited. “There have actually been very few death penalties imposed by Military Government Courts. More serious offenders have been sentenced to prison terms of from ten to twenty years.” Nobleman, in Fed. Bar Journal, Vol. VIII (1946), p. 71, note.

116 Ordinance No. 1, Article IV.

117 Ordinance No. 2, S.C.A.C, MGR 23–215, Articles I and II. On the functions of these courts, see Nobleman, work cited, pp. 84 and ff.

118 Law No. 1, Article I, S.C.A.C., MGR 23–201. And see the provisions of Control Council Law No. 1, repealing a list of 26 laws for all occupied Germany. Department of State Bulletin, Vol. XV (1946), No. 384, p. 859.

119 Law No. 1, Article IV.

120 Articles I–II, MGR 23–202. See also Military Government Gazette, British Zone of Control, No. 3, p. 4.

121 Article VI.

122 Article VII.

123 Law 153, Article 1. Cf. Military Government Gazette, No. 3, p. 132.

124 In the British Zone of Control British civilians guilty of offenses which would have been a crime in England, were subjected to the jurisdiction of the Military Government Courts. Penalties in such cases were to be the same as those provided by English law. See Ordinance No. 5, British Zone of Control, Military Government Gazette, No. 4, p. 5. Military Government Courts in the U. S. Zone have relinquished jurisdiction to try Soviet citizens living there. MGR 5–381.1, and for comment, Nobleman, work cited, p. 82.

125 Or, for that matter, in Japan. See (c), below.

126 Above, notes 111–113.

127 Control Council Law No. 4, October 30, 1945, MGR 23–124; Military Government Gazette, No. 5. For the principle accepted at Potsdam on this matter see Dept. of State Bulletin, Vol. XIII, August 5, 1945, p. 155.

Celebrated Law No. 5 relative to German external assets was adopted on the same date. It provided that all rights in respect of any property outside Germany which is owned or controlled by any person of German nationality whether residing inside or outside of Germany “are hereby vested in the [German External Property] Commission.” Articles II and III, MGR 23–125. See also Military Government Gazette, No. 5. This law was aimed at divesting such assets of their German ownership to eliminate Germany’s war potential in accordance with the Potsdam Declaration. See Department of State Bulletin, as cited, p. 156.

128 Control Council Law No. 10, December 20, 1945. For text see Department of State Bulletin, Vol. XV, Nov. 10, 1946, p. 862. By Control Council Directive No. 18 of Nov. 12, 1945, the German Armed Forces were “disbanded and dissolved.” Military Government Gazette, No. 9. Cf. also the Journal Official, Government Militaire de la zone Française (hereafter referred to as “J.O.”), May 11, 1946, p. 181.

129 Law No. 11, January 30, 1946; Military Government Gazette, No. 7, p. 96.

130 Laws No. 12 and 13, February 11, 1946; work cited, p. 106.

131 Law No. 16, February 20, 1946; work cited, p. 110. For similar broad measures in the French Zone, see: Arrêté No. 7 de l’Administrateur Général, July 23, 1946; J.O., No. 30, August 2, 1946, p. 256 (creating an administrative tribunal for the Saar); Ordonnance No. 6, September 10, 1945 (reëstablishment of law relative to trade-unions); Ordonnance No. 49, J.O., No. 32, August 10, 1946 (to ensure secrecy and freedom of ballot in German elections).

132 The official English language translation of this constitution (which was passed by the House of Peers on October 6, 1946) was released by the Far Eastern Commission on November 19, 1946, as FEC Document 087/14. The Japanese text is available as FEC 087/15.

133 Article 19 of the new Japanese Constitution, and MaeArthur’s directive to the Japanese Gov’t, Oct. 4, 1945, State Department pub. 2423, p. 115.

134 Constitution, Article 15.

135 SCAPIN—756, February 19, 1946, AGO 15. Military commissions (empowered to impose the death penalty) and Provost courts were established as occupation courts under this directive.

136 SCAPIN—776, February 26, 1946.

137 Among these are revision of the educational system (cf. SCAPIN Directive 178 to the Japanese Government, October 22, 1945); dissolution of monopolistic Japanese combines (the Zaibatsu interests) pursuant to par. 11 of Potsdam surrender terms (The New York Times, Nov. 28, 1946); termination of feudal system of land tenures (same, Dec. 10, 1945). See also same, April 9, 1946, reporting the abolition of compulsory loans under Government blanket guarantees. Under the Hague Regulations, modification of the system of landholding would be unlawful according to McNair, Legal Effects of War, pp. 338–339.

138 Unconditional surrender of the German and Japanese forces which resulted in their laying down arms without the special reservations usually inserted in armistice conventions, does not ipso facto imply that the capitulating power abandons all claim to the benefits of the Hague and Geneva Conventions in favor of its nationals” (Letter dated September 6, 1946, from Max Huber, President of the International Committee of the Red Cross, to Secretary of State Byrnes, unpublished). Compare Hyde, work cited, § 701A.

139 Department of State Bulletin, June 10, 1945, p. 1052.

140 Same, for August 12 and August 19, 1945.

141 Pamphlet No. 32, Carnegie Endowment for International Peace, p. 38; and this Journal, Vol. 14 (1920), p. 114.

142 Carnegie Pamphlet No. 32, as cited.

143 Same, item 17, p. 44.

144 As cited. For a detailed survey of the German theory and practice on collective penalties for wrongs committed by individuals, see Garner, International Law and the World War, Vol. II, Ch. XXVI; Mérignhac, work cited, Vol. I, p. 595, and compare Fauchille, work cited, Vol. 2, p. 293.

145 See above, p. 581.

146 J. B. Scott, Proceedings of the Hague Conference of 1899, p. 65; and see also Spaight, War Rights on Land, p. 408; Westlake, International Law, Vol. II, p. 106; Peilchenfeld, International Economic Law of Belligerent Occupation, pp. 47–48; Bolin, Le droit moderne de la guerre, Vol. 1, pp. 481 ff. Neither the question of reprisals nor that of hostages was prejudged by this article. Proceedings, as cited; Hyde, International Law, 2nd ed., § 692; War Department Meld Manual, FM 27–10, Rules of Land Warfare, par. 334, recognizing that Article 50 does not prohibit “reprisals by the occupant for violations of the laws of war or breach of the occupant’s proclamations or regulations by enemy individuals not belonging to the armed forces.” See also Wheaton, International Law, 7th ed., Vol. II, p. 261.

147 See above, notes 22 and 23.

148 Wheaton, International Law, 7th ed., Vol. II, pp. 262–263, where the author condemns the execution of whole families of Yugoslavs because a son attacked the occupants, as contrary to the law of nations.

149 Spaight, War Rights on Land, p. 357; Halleck, AA, International Law, 3rd ed., Vol. II, p. 439 Google Scholar; Fauchille, AA, Droit International Public, Vol. II, pp. 227, 232 Google Scholar; Westlake, AA, International Law, Vol. II, p. 96 Google Scholar; Rolin, AA, Le Droit Moderne de la Guerre, Vol. 1, p. 436 Google Scholar; FM 27–10, Rules of Land Warfare, par. 288; Oppenheim, work cited, p. 349; Kunz, work cited, p. 93.

150 See Schwenk, AA, in Yale Law Journal, Vol. 54 (1945), p. 405 CrossRefGoogle Scholar; also paragraph 42d of the United States Manual of Military Government, War Department Field Manual, FM 27–5.

151 The validity of such measures can be sustained solely with reference to international practice under the Hague Regulations, irrespective of the larger powers enjoyed by the victorious belligerents under the Berlin and Potsdam Declarations of June 5, 1945 (this Journal, Vol. 39, supp., p. 171) and August 2, 1945 (same, p. 245). See also Kelsen in this Journal, Vol. 39 (1945), pp. 518–519.

152 Scott, The Hague Conventions and Declarations of 1899–1907, pp. 101–102.

153 On German practice of summary police justice in occupied Holland see The Trial of German Major War Criminals, Proceedings at Nuremberg. London, 1946, Part 5, pp. 308–11, 316.

154 FM 27–10, Rules of Land Warfare, par. 345, C–1, Nov. 15, 1944.