Rather, they have justly and legally assumed the broader task in Germany which they have solemnly defined and declared, to wit: the task of reorganizing the German government and economy and of punishing persons who, prior to the occupation, were guilty of crimes against humanity committed, against their own nationals. We have pointed out that this difference in the nature of the occupations is due to the unconditional surrender of Germany and the ensuing chaos which required the Four Powers to assume provisional supreme authority throughout the German Reich. We are not attempting to pass judicially upon a question which is solely within the jurisdiction of the political departments of the Four Powers. The fixing of the date of the formal end of the war and similar matters will, of course, be dependent upon the action of the political departments. We do not usurp their function. We merely inquire, in the course of litigation when the lives of men are dependent upon decisions which must be both legal and just, whether the great objectives announced by the Four Powers are themselves in harmony with the principles of international law and morality.
In declaring that the expressed determination of the victors to punish German officials who slaughtered their own nationals is in harmony with international principles of justice, we usurp no power; we only take judicial notice of the declarations already made by the chief executives of the United States and her former Allies. The fact that C.C. Law 10 on its face is limited to the punishment of German criminals does not transform this Tribunal into a German court. The fact that the Four Powers are exercising supreme legislative authority in governing Germany and for the punishment of German criminals does not mean that the jurisdiction of this Tribunal rests in the slightest degree upon any German law, prerogative, or sovereignty. We sit as a Tribunal drawing its sole power and jurisdiction from the will and command of the four occupying powers.
Examination will disclose that C.C. Law 10 possesses a dual aspect. In its first aspect and on its face it purports to be a statute defining crimes and providing for the punishment of persons who violate its provisions. It is the legislative product of the only body in existence having and exercising general lawmaking power throughout the Reich. The first International Military Tribunal in the case against Goering, et al., recognized similar provisions of the IMT Charter as binding legislative enactments. We quote;
"The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and. the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. * * * These provisions are binding upon the Tribunal as the law to be applied to the case." (Trial of the major war criminals (Official Text - Nurnberg, 1947), Volume 1, pages 218 and 174).
Since the Charter and C.C. Law 10 are the product of legislative action by an international authority, it follows of necessity that there is no national constitution of any one State which could be invoked to invalidate the substantive provisions of such international legislation. It can scarcely be armed that a court which owes its existence and jurisdiction solely to the provisions of a given statute could assume to exercise that jurisdiction and then, in the exercise thereof, declare invalid the act to which it owes its existence. Except as an aid to construction, we cannot and need not go behind the statute. This was discussed authoritatively by the first International Military Tribunal in connection with the contention of defendants that the Charter was invalid because it partook of the nature of ex-post facto legislation. That Tribunal said, "The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is, therefore, not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement."
(Trial of major war criminals, Volume 1, page 219).
As recently said by an American authority?
"The Charter was, of course, binding upon the Tribunal in the same way that a constitutional statute would bind a domestic court." (Issues of the Nurnberg Trials, by Herbert Wechsler, Political Science Quarterly, March 1947, page 14).
In its aspect as a statute defining crime and providing punishment the limited purpose of C.C. Law 10 is clearly set forth. It is an exercise of supreme legislative power in and for Germany. It does not purport to establish by legislative act any new crimes of international applicability. The London Agreement refers to the trial of "those German officers and men and members of the Nazi Party who have been responsible for * * * atrocities." C.C. Law 10 recites that it was enacted to establish a "uniform legal basis in Germany" for the prosecution of war criminals.
Military Government Ordinance No. 7 was enacted pursuant to the powers of the Military Government for the United States Zone of Occupation "within Germany".
We concur in the view expressed by the first International Military Tribunal as quoted above, but we observe that the decision was supported on two grounds. The Tribunal in that case did not stop with the declaration that it was bound by the Charter as an exercise of sovereign legislative power. The opinion went on to show that the Charter was also "an expression of international law at the time of its creation". All of the war crimes and many, if not all, of the crimes against humanity as charged in the indictment in the case at bar were, as we shall show, violative of pre-existing principles of international law. To the extent to which this is true, C.C. Law 10 may be deemed to be a codification rather than original substantive legislation.
Insofar as C.C. Law 10 may be thought to be beyond, established principles of international law, its authority, of course, rests upon the exercise of the "sovereign legislative power" of the countries to which the German Reich unconditionally surrendered.
We have discussed C.C. Law 10 in its first aspect as substantive legislation. We now consider its other aspect. Entirely aside from its character as substantive legislation, C.C. Law 10, together with Ordinance No. 7, provides procedural means previously lacking for the enforcement within Germany of certain rules of international law which exist throughout the civilized world independently of any new substantive legislation. (Ex Parte Quirin, 317 U.S. 1; 87 L. ed. 3; 63 S. Ct. 2). International law is not the product of statute. Its content is not static. The absence from the world of any governmental body authorized to enact substantive rules of international law has nor prevented the progressive development of that law. After the manner of the English common law it has grown to meet the exigencies of changing conditions.
It must be conceded that the circumstance which gives to principles of international conduct the dignity and authority of law is their general acceptance as such by civilized nations, which acceptance is manifested by international treaties, conventions, authoritative textbooks, practice and judicial decisions. (Hackworth, Digest of International Law, Volume 1, Pages 1-4).
It does not, however, follow from the foregoing statements that general acceptance of a rule of international conduct must be manifested by express adoption thereof by all civilized States.
"The basis of the law, that is to say, what has given to some principles of general applicability the quality or character of law has been the acquiescence of the several independent States which were to be governed thereby." (Hyde, International Law, (2d rev. ed.), Vol. 1, page 4).
"The requisite acquiescence on the part of individual States has not been reflected in formal or specific approval of every restriction which the acknowledged requirements of international justice have appeared, under the circumstances of the particular case, to dictate or imply. It has been rather a yielding to principle, and by implication, to logical applications thereof which have begotten deep-rooted and approved practices."
(Hyde, supra, page 5). "It should be observed, however, that acquiescence in a proposal maybe inferred from the failure of interested States to make appropriate objection to practical applications of it. Thus it is that changes in the law may be wrought gradually and imperceptibly, like those which by process of accretion alter the course of a river and change an old boundary. Without conventional arrangement, and by practices manifesting a common and sharp deviation from rules once accepted as the law, the community of States may in fact modify that which governs its members."
(Hyde, supra, page 9).
"States may through the medium of an international organization such as the League of Nations, itself the product of agreement, find it expedient to create and accept fresh restraints that ultimately win widest approval and acceptance as a part of the law of nations. The acts of the organization may thus in fact become sources of international law, at least in case the members thereof have by their general agreement clothed it with power to create and put into force fresh rules of restraint." (Hyde, supra, page 11).
"But international law is progressive. The period of growth generally coincides with the period of world upheavals. The pressure of necessity stimulates the impact of natural law and of moral ideas and converts them into rules deliberately and overtly recognized by the consensus of civilized mankind. The experience of two great world wars within a quarter of a century cannot fail to have deep repercussions on the senses of the peoples and their demand for an international law which reflects international justice. I am convinced that international law has progressed, as it is bound to progress if it is to be a living and operative force in these days of widening sense of humanity."
(Lord Wright, "War Crimes under International Law", The Law Quarterly Review, Vol. 62, January 1946, page 51).
For the reasons stated by Lord Wright, this growth by accretion has been greatly accelerated since the First World War. (Hyde, International Law, (2d rev. ed.), Volume 1, page 8). The Charter, the I.M.T. Judgment, and C.C. Law 10 are merely "great new cases in the book of international law). They constitute authoritative recognition of principles of individual penal responsibility in international affairs which, as we shall show, had been developing for many years. Surely C.C. Law 10, which was enacted by the authorized representatives of the four greatest powers on earth, is entitled to judicial respect when it states, "Each of the following acts is recognized as a crime". Surely the requisite international approval and acquiescence is established when twenty-three States, including all of the great powers, have approved the London Agreement and the I.M.T. Charter without dissent from any State. Surely the Charter must be deemed declaratory of the principles of international law in view of its recognition as such by the General Assembly of the United Nations. We quote:
"The General Assembly recognizes the obligation laid upon it by Article 13, paragraph 1, subparagraph (a) of the Charter, to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification;
"Takes note of the agreement for the establishment of an International Military Tribunal for the prosecution and punishment of the major war criminals of the European Axis, signed in London on 8 August 1945, and of the Charter annexed thereto, and of the fact that similar principles have been adopted in the Charter of the International Military Tribunal for the trial of the major war criminals in the Far East, proclaimed at Tokyo on 19 January 1946;
"Therefore, "Affirms the principles of international law recognized by the Charter of the Nuernberg Tribunal and the judgment of the Tribunal:
"Directs the Committed on codification of international law established by the resolution of the General Assembly of ..... December 1946, to treat as a matter of primary importance plans for the formulation, in the text of a general codification of offenses against the peace and security of mankind, of of an International Criminal Code, of the principles recognized in the Charter of the Nuernberg Tribunal and in the judgment of the Tribunal."
(Journal of the United Nations, No. 58, Supp. A - A/P. V./55, p. 485; ("The Crime of Aggression and the Future of International Law", by Philip C. Jessup, Political Science Quarterly, Vol. LXII. March 1947, Number 1, page 2).)
Before the International Military Tribunal had convened for the trial of Goering, et al., the opinion had been expressed that through the process of accretion the provisions of the I.M.T, Charter and consequently of C.C. Law 10 had already, in large measure, become incorporated into the body of international law. We quote:
"I understand the Agreement to import that the three classes of persons which it specifies are war criminals, that the acts mentioned in classes (a), (b) and (c) are crimes for which there is properly individual responsibility; that they are not crimes because of the Agreement of the four Governments, but that the Governments have scheduled them as coming under the jurisdiction of the Tribunal because they are already crimes by existing law. On any other assumption the Court would not be a Court of law but a manifestation of power. The principles which are declared in the Agreement are not laid down as an arbitrary direction to the Court but are intended to define and do, in my opinion, accurately define what is the existing international law on these matters," (Lord Wright, "War Crimes under International Law", The Law Quarterly Review, Vol.
62, January 1946, page 41).
A similar view was expressed in the Judgment of the International Military Tribunal. We quote:
"The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law." (I.M.T. Judgment, page 218). We are empowered to determine the guilt or innocence of persons accused of acts described as "war crimes" and "crimes against humanity" under rules of international law.
At this point, in connection with cherished doctrines of national sovereignty, it is important to distinguish between the rules of common international law which are of universal and superior authority on the one hand, and the provisions for enforcement of those rules which are by no means universal on the other. As to the superior authority of international law, we quote:
"If there exists a body of international law which States, from a sense of legal obligation do in fact observe in their relations with each other, and which they are unable individually to alter or destroy, that law must necessarily be regarded as the law of each political entity deemed to be a State, and as prevailing throughout places under its control. This is true although there be no local affirmative action indicating the adoption by the individual State of international law. * * * International law, as the local law of each State, is necessarily superior to any administrative regulation or statute or public act at variance with it. There can be no conflict on an equal plane." (Hyde, International Law, ((2d rev. ed.),) Vol. 1, pages 16, 17).
This universality and superiority of international law does not necessarily imply universality of its enforcement. As to the puhishment of persons guilty of violating the laws and customs of war (war crimes in the narrow sense), it has always been recognized that tribunals may be established and punishment imposed by the State into whose hands the perpetrators fall. Those rules of international law were recognized as paramount, and jurisdiction to enforce them by the injured belligerent government, whether within the territorial boundaries of the State or in occupied territory, has been unquestioned.
(Ex parte Quirin, supra; In re: Yamashita, 90 L. ed. 343). However, enforcement of international law has been traditionally subject to practical limitations. Within the territorial boundaries of a State having a recognized, functioning government presently in the exercise of sovereign power throughout its territory, a violator of the rules of international law could be punished only by the authority of the officials of that State. The law is universal, but such a State reserves unto itself the exclusive power within its boundaries to apply or withhold sanctions. Thus, notwithstanding its paramount authority of the substantive rules of common international law the doctrines of national sovereignty have been preserved through the control of enforcement machinery. It must be admitted that Germans were not the only ones who were guilty of committing war crimes; other violators of international law could, no doubt, be tried and punished by the State of which they were nationals, by the offended State if it can secure jurisdiction of the person, or by an International Tribunal if of competent authorized jurisdiction.
Applying these principles, it appears that the power to punish violators of international law in Germany is not solely dependent on the enactment of rules of substantive penal law applicable only in Germany. Nor is the apparent immunity from prosecution of criminals in other States based on the absence there of the rules of international law which we enforce here. Only by giving consideration to the extraordinary and temporary situation in Germany can the procedure here be harmonized with established principles of national sovereignty. In Germany an international body (the Control Council) has assumed and exercised the power to establish judicial machinery for the punishment of those who have violated the rules of the common international law, a power which no international authority without consent could assume or exercise within a State having a national government presently in the exercise of its sovereign powers.
Construction of C.C. Law 10 War Crimes and Crimes Against Humanity We next approach the problem of the construction of C.C. Law 10, for whatever the scope of international common law may be, the power to enforce it in this case is defined and limited by the terms of the jurisdictional act.
The first penal provision of Control Council Law No. 10, with which we are concerned is as follows:
"Article II, 1.--Each of the following acts is recognized as a crime: * * * (b) War crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity."
Here we observe the controlling effect of common international law as such, for the statutes by which we are governed have adopted and incorporated the rules of international law as the rules by which war crimes are to he identified. This legislative practice by which the laws and customs of war are incorporated by reference into a statute is not unknown in the United States. See cases cited in Ex Parte Quirin, supra.
The scope of inquiry as to war crimes is, of course, limited by the provisions, properly construed, of the Charter and C.C. Law 10. In this particular, the two enactments are in substantial harmony. Both indicate by inclusion and exclusion the intent that the term "war crimes" shall he employed to cover acts in violation of the laws and customs of war directed against non-Germans, and shall not include atrocities committed by Germans against their own nationals. It will be observed that Article VI of the Charter enumerates as war crimes acts against prisoners of war, persons on the seas, hostages, wanton destruction of cities and the like, devastation not justified by military necessity, plunder of public or private property (obviously not property of Germany or Germans), and "ill treatment or deportation to slave labor, or for any other purpose, of civilian population of, or in, occupied territory". C.C. Law 10, supra, employs similar language.
It reads:
" * * * ill treatment or deportation to slave labor or for any other purpose of civilian population from occupied territory". This legislative intent becomes more manifest when we consider the provisions of the Charter and of C.C. Law 10 which deal with crimes against humanity. Article VI of the Charter defines crimes against humanity, as follows:
" * * * murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated."
C.C. Law 10 defines as criminal:
" * * * Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated."
Obviously, these sections are not surplusage. They supplement the preceding sections on war crimes and include within their prohibition not only war crimes, but also acts not included within the preceding definition of war crimes. In place of atrocities committed against civilians of or in or from occupied territory, these sections prohibit atrocities "against any civilian population". Again, persecutions on racial, religious, or political grounds are within our jurisdiction "whether or not in violation of the domestic laws of the country where perpetrated". We have already demonstrated that C.C. Law 10 is specifically directed to the punishment of German criminals.
It is, therefore, clear that the intent of the statute on crimes against humanity is to punish for persecutions and the like, whether in accord with or in violation of the domestic laws of the country where perpetrated, to wit: Germany. The intent was to provide that compliance with German law should be no defense.
Article III of C.C. Law 10 clearly demonstrates that acts by Germans against German nationals may constitute crimes against humanity within the jurisdiction of this Tribunal to punish. That Article provides that each occupying authority within its zone of occupation shall have the right to cause persons suspected of having committed a crime to be arrested and * * * (d) shall have the right to cause all persons so arrested * * * to be brought to trial * * *. Such Tribunal may, in case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German court, if authorized by the occupying authorities.
As recently asserted by General Telford Taylor before Tribunal No. IV, in the case of the United States vs. Flick, et al.:
"This constitutes an explicit recognition that acts committed by Germans against other Germans are punishable as crimes under Law No. 10, according to the definitions contained therein, since only such crimes may be tried by German courts, in the discretion of the occupying power. If the occupying power fails to authorize German courts to try crimes committed by Germans against other Germans (and in the American Zone of Occupation no such authorization has been given), then these cases are tried only before non-German tribunals, such as these Military Tribunals."
Our jurisdiction to try persons charged with crimes against humanity is limited in scope, both by definition and illustration, as appears from C.C. Law 10. It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual.
It is significant that the enactment employs the words "against any civilian population" instead of "against any civilian individual". The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.
The opinion of the first International Military Tribunal in the case against Goering, et al., lends support to our conclusion. That opinion recognized the distinction between war crimes and crimes against humanity, and said:
" * * * in so far as the inhumane acts charged in the indictment and committed after the beginning of the war did not constitute war crimes, they were all committed in execution of, or in connection with, aggressive war and, therefore, constituted crimes against humanity. (Trial of major war criminals, Vol. I, pp. 254-255).
The evidence to be later reviewed establishes that certain inhumane acts charged in Count 3 of the indictment were committed in execution of, and in connection with, aggressive war and were, therefore, crimes against humanity even under the provisions of the I.M.T. Charter, but it must be noted that C.C. Law 10 differs materially from the Charter. The latter defines crimes against humanity as inhumane acts, etc., committed " * * * in execution of, or in connection with, any crime within the jurisdiction of the tribunal * * *", whereas in C.C.
Law 10 the words last quoted are deliberately omitted from the definition.
The Ex Post Facto Principle The defendants claim protection under the principle nullum crimen sine lege, though they withheld from others the benefit of that rule during the Hitler regime.
Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed.
By way of illustration, we observe that C.C. Law 10, Article II, 1 (b), "War Crimes", has by reference incorporated the rules by which war crimes are to be identified.
In all such cases it remains only for the Tribunal, after the manner of the common law, to determine the content of these rules under the impact of changing conditions.
Whatever view may be held as to the nature and source of our authority under C. C. Law 10 and under common international law, the ex post facto rule, properly understood, constitutes no legal nor moral barrier to the prosecution in this case.
Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, although the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth. As applied in the field of international law, the principle nullum crimen sine loge received its true interpretation in the opinion of the I.M.T. in the case versus Georing, et al. The question arose with reference to crimes against the peace, but the opinion expressed is equally applicable to war crimes and crimes against humanity. The Tribunal said:
"In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice.
To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring States without warning is abviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished."
To the same effect we quote the distinguished statesman and international authority, Henry L. Stimson, "A mistaken appeal to this principle has been the cause of much confusion about the Nuernberg trial.
It is argued that parts of the Tribunal's Charter, written in 1945, make crimes out of what before were activities beyond the scope of national and international law. Were this an exact statement of the situation we might well be concerned, but it is not. It rests on a miscanception of the whole nature of the law of nations. International law is not a body of authoritative codes or statutes; it is the gradual expression, case by case, of the moral judgments of the civilized world. As such, it corresponds precisely to the common law of Anglo-American tradition. We can understand the law of Nuernberg only if we see it for what it is -a great new case in the book of international law,. and not a formal enforcement of codified statutes. A look at the charges will show what I mean.
"It was the Nazi confidence that we would never chase and catch them, and not a misunderstanding of our opinion of them, that led them to commit their crimes. Our offense was thus that of the man who passed by on the other side. That we have finally recognized our negligence and named the criminals for what they are is a piece of righteousness too long delayed by fear."
(The Nurenberg Trial, Landmark and Law; Foreign Affairs, January 1947.)
That the conception of retrospective legislation which prevails under constitutional previsions in the United States does not receive complete recognition in other enlightened legal systems is illustrated by the decision in Phillips vs. Eyre, L.R. 6 Q.B. 1, described by Lord Wright as "a case of great authority." We quote:
"In fine, allowing the general inexpediency of retrospective legislation, it cannot be pronounced naturally or necessarily unjust. There may be occasions and circumstances involving the safety of the State or even the conduct of individual subjects, the justice of which prospective laws made for ordinary occasions and the usual exigencies of society, for want to provision fail to meet, and in which the inconvenience and wrong, summum jus summa injuria.
We quote with approval the words of Sir David Maxwell Fyfe; as follows:
"With regard to 'crimes against humanity', this at any rate is clear: the Nazis, when they persecuted and murdered countless Jews and political opponents in Germany, knew that what they were doing was wrong and that their actions were crimes which had been condemned by the criminal law of every civilized State. When these crimes were mixed with the preparation for aggressive war and later with the commission of war crimes in occupied territories, it cannot be a matter of complaint that a procedure is established for their punishment."
(Fyfe, Foreword to "The Nuernberg Trial", by R.W. Cooper.).
Concerning, the mooted ex post facto issue, Professor Wechsler of Columbia University writes:
"These are, indeed, the issues that are currently mooted. But there are elements in the debate that should lead us to be suspicious of the issues as they are drown in these terms. For, most of those who mount the attack on one or another of these contentions hasten to assure us that their plea is not one of immunity for the defendants; they argue only that they should have been disposed of politically, that is, dispatched out of hand. This is a curious position indeed. A punitive enterprise launched on the basis of general rules, administered in an adversary proceeding under a separation of prosecutive and adjudicative powers is, in the name of law and justice, asserted to be less desirable than an ex parte execution list or a drumhead court martial constituted in the immediate aftermath of war. I state my view reservedly when I say that history will accept no conception of law, politics or justice that supports a submission in these terms."
Again, he says:
There is, indeed, too large a dispostion among the defenders of Nuernberg to look for stray tags of international pronouncements and reason therefrom that the law of Nuernberg was previously fully laid down. If the Kellogg-Briand Pact or a general conception of international obligation sufficed to authorize England, and would have authorized us, to declare war on Germany in defense of Poland-and in this enterprise to kill countless thousands of German soldiers and civilians - can it be possible that it failed to authorize punitive action against individual Germans judicially determined to be responsible for the Polish attack? To be sure, we would demand a more explicit authorization for punishment in domestic law, for we have adopted for the protection of individuals a prophylactic principle absolutely forbidding retroactivity that we can afford to carry to that extereme. International society, being less stable, can afford less luxury. We admit that in other respects. Why should wc deny it here?" (Wechsler, "Issues of Nuernberg Trial", Political Science Quarterly, Vol. LXII, No. 1, March 1947, pages 23-25.)
Many of the laws of the Weimar era. which were enacted for the protection of human rights have never been repealed. Many acts constituting war crimes or crimes against humanity as defined in C.C. Law 10 were committed or permitted in direct violation also of the provisions of the German criminal law. It is true that this Tribunal can try no defendant merely because of a violation of the German penal code, but it is equally true that the rule against retrospective legislation, as a rule of justice and fair play, should be no defense if the act which he committed in violation of C.C. Law 10 was also known to him to be a punishable crime under his own domestic law.
As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C.C. law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the States at war with Germany. Not only were the defendants warned of swift retribution by the express declaration of the Allies at Moscow of 30 October 1943. Long prior to the Second World War the principle of personal responsibility had been recognized.
"The Council of the Conference of Poris of 1919 undertook, with the aid of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, to incorporate in the treaty of peace arrangements for the punishnent of individuals charged with responsibility for certain offenses." (Hyde, International Law, (2d rev. ed.), Vol, III, page 2409.)
That Commission on Responsibility of Authors of the War found that:
"The war was carried on be the Central Empires, together with their Allies, Turkey and Bulgaria, by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity." (Hyde, International Law, (2d rev, ed.), Vol. III, pages 2409-2410.)
As its conclusion the Commission solemnly declared:
"All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including chiefs of States, who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution." (American Journal of International Law, Volume 14, (1920), page 117).
The American members of that Commission, though in substantial accord with the finding, nevertheless expressed a reservation as to "the laws of humanity". The express wording of the London Charter and of C.C. Law 10 constitutes clear evidence of the fact that the position of the American government is now in harmony with the Declaration of the Paris Commission concerning the "laws of humanity". We quote further from the report of the Paris Commission: