(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:
"Every belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty of the crimes of which an enumeration has been given in Chapter II on Violations of the Laws and Customs of War, if such persons have been taken prisoners or have otherwise fallen into its power. Each belligerent has, or has power to set up, pursuant to its own legislation, an appropriate tribunal, military or civil, for the trial of cases, (Hyde, International Law, (2d rev. ed.), Vol, III, Page 2412).
According to the Treaty of Versatiles, Article 228, the German government itself "recognized the right of the Allied and associated powers to bring before military tribunals persons accused of offenses against the laws and customs of war. Such persons who night be found guilty were to be sentenced to punishnents 'laid down by law'." Some Germans were, in fact, tried for the commission of such crimes. (See: Hyde, International Law, (2d rev. ed.) Vol. III, page 2414.)
The foregoing considerations demonstrate that the principle nullum crimen sine lege, when properly understood and applied, constitutes no legal or moral barrier to prosecution in the case at bar.
The Tribunal will take fifteen minutes' recess at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal has been advised that considerations for the health of the defendant Klemm require that he be excused for the rest of this morning's session.
Is that the wish of the defendant, Dr. Schill?
I understand you to say that it is the wish of the defendant that he be excused for the balance of the morning's session.
The defendant Klemm may be excused for the balance of the morning session.
Judge Blair will continue the reading of the opinion of the Tribunal.
JUDGE BLAIR:
Crimes against Humanity as Violative of International Law.
C.C. Law 10 is not limited to the punishment of persons guilty of violating the laws and customs of war in the narrow sense; furthermore, it can no longer be said that violations of the laws and customs of war are the only offenses recognized by common international law. The force of circumstance, the grim fact of worldwide interdependence, and the moral pressure of public opinion have resulted in international recognition that certain crimes against humanity committed by Nazi authority against German nationals constituted violations not alone of statute but also of common international law. We quote:
"If a State is unhampered in its activities that affect the interests of any other, it is due to the circumstance that the practice of nations has not established that the welfare of the international society is adversely affected thereby. Hence, that society has not been incited or aroused to endeavor to impose restraints; and by its law none are imposed.
The Covenant of the League of Nations takes exact cognizance of the situation in its reference to disputes which arise out of a matter which by international law is solely within the domestic jurisdiction of a party thereto. It is that law which as a product of the acquiescence of States permits the particular activity of the individual State to be deemed a domestic one." "Inasmuch as changing estimates are to be anticipated, and as the evolution of thought in this regard appears to be constant and is perhaps now more obvious than at any time since the United States came into being, the circumstance that at any given period the solution of a particular question is by international law deemed to be solely within the control or jurisdiction of one State, given frail assurance that it will always be so regarded." (Hyde, International Law, (2d rev. ed.), Vol. 1, pages 7,8).
"The family of nations is not unconcerned with the life and experience of the private individual in his relationships with the State of which he is a national. Evidence of concern has become increasingly abundant since World War I, and is reflected in treaties through which that conflict was brought to a close, particularly in provisions designed to safeguard the racial, linguistic and religious minorities inhabiting the territories of certain States, and in the terms of Part XIII of the Treaty of Versailles, of 28 June 1919, in respect to Labor, as well as in Article XXIII of that treaty embraced in the Covenant of the League of Nations." (Hyde, International Law, (2d rev. ed.), Vol. I, page 38).
"The nature and extent of the latitude accorded a State in the treatment of its own nationals has been observed elsewhere. It has been seen that certain forms or degrees of harsh treatment of such individuals may be deemed to attain an international significance because of their direct and adverse effect upon the rights and interests of the outside world.
For that reason it would be unscientific to declare at this day that tyrannical conduct, or massacres, or religious persecutions are wholly unrelated to the foreign relations of the territorial sovereign which is guilty of them. If it can be shown that such acts were immediately and necessarily injurious to the nationals of a particular foreign State, grounds for interference by it may be acknowledged. Again, the society of nations, acting collectively, may not unreasonably maintain that a State yielding to such excesses renders itself unfit to perform its international obligations, especially in so far as they pertain to the protection of foreign life and property within its domain.3 The propriety of interference obviously demands in every case a convincing showing that there is in fact a causal connection between the harsh treatment complained of, and the outside State that essays to thwart it.
"Note 3.-- Since the World War of 1914-1918, there has developed in many quarters evidence of what might be called an international interest and concern in relation to what was previously regarded as belonging exclusively to the domestic affairs of the individual State; and with that interest there has been manifest also an increasing readiness to seek and find a connection between domestic abuses and the maintenance of the general peace. See Art. XI of the Covenant of the League of Nations, U.S. Treaty Vol:III, 3339." (Hyde, International Law, (2d rev. ed.), Vol. I, pages 249-250)."
The international concern over the commission of crimes against humanity has been greatly intensified in recent years.
The fact of such concern is not a recent phenomenon, however. England, France, and Russia intervened to end the atrocities in the Greco-Turkish warfare in 1827. (Oppenheim, International Law, Vol. I, (3d ed.) (1920), page 229).
President Van Buren, through his Secretary of State, intervened with the Sultan of Turkey in 1840 on behalf of the persecuted Jews of Damascus and Rhodes. (State Department Publication No. 9, pages 153-154).
The French intervened and by force undertook to check religious atrocities in Lebanon in 1861. (Bentwich, The League of Nations and Racial Persecution in Germany, Vol. 19, Problems of Peace and War, page 75, (1934)).
Various nations directed protests to the governments of Russia and Roumania with respect to pogroms and attrocities against Jews. Similar protests were made to the government of Turkey on behalf of the persecuted Christian minorities. In 1872 the United States, Germany, and five other powers protested to Roumania; and, in 1915, the German government joined in a remonstrance to Turkey on account of similar persecutions. (Bentwich, op. cited, supra).
In 1902 the American Secretary of State, John Hay, addressed to Roumania a remonstrance "in the name of humanity" against Jewish persecutions, saying: "This government cannot be a tacit party to such international wrongs."
Again, in connection with the Kishenef and other massacres in Russia in 1903, President Theodore Roosevelt stated:
"Nevertheless, there are occasional crimes committed on a vast scale and of such peculiar horror as to make us doubt whether it is not our manifest duty to endeavor at least to show our disapproval of the deed and our sympathy with those who have suffered by it. The case must be extreme in which such a course is justifiable . . . .The case in which we could interfere by force of arms, as we interfered to put a stop to the intolerable conditions in Cuba, are necessarily very few."
(President's Message to Congress, 1904).
Concerning the American intervention in Cuba in 1898, President McKinley stated:
"First. In the cause of humanity and to put an end to the barbarities, bloodshed, starvation, and horrible miseries now existing there, and which the parties to the conflict arc either unable or unwilling to stop or mitigate. It is no answer to say this is all in another country, belonging to another nation, and therefore none of our business. It is specially our duty, for it is right at our door." (President's Special Message of 11 April 1898. Hyde, International Law, Vol. 1, (2d ed.), page 259 (1945))."
The same principle was recognized as early as 1873 by a learned German professor of law, who wrote:
"States are allowed to interfere in the name of international law if 'humanity rights' are violated to the detriment of any single race." (J.K. Bluntschel, Professor of Law, Heidelberg University, in "Das Moderne Volkerrecht der Civilisierton Staaten", (3d ed.), page 270 (1873)).
Finally, we quote the words of Sir Hartley Shaweross, the British Chief Prosecutor at the trial of Goering, et al.:
"The right of humanitarian intervention on behalf of the rights of man trampled upon by a State in a manner shocking the sense of mankind, has long been considered to form part of the law of nations. Here, too, the Charter merely develops a pre-existing principle." (Transcript, page 813).
We hold that crimes against humanity as defined in CC Law 10 must be strictly construed to excludo isolated cases of atrocities or persecutions whether committed by private individuals or by a governmental authority. As we construe it, that section provides for the punishment of crimes committed against German nationals only where there is proof of conscious participation in systematic governmentally organized or approved procedures, amounting to atrocities and offenses of that kind specified in the act and committed against populations or amounting to persecutions on political, racial, or religious grounds.
Thus the statute is limited by the construction of the type of criminal activity which prior to 1939 was and still is a matter of international concern. Whether or not such atrocities constitutes technical violations of laws and customs of war, they were acts of such scope and malevolence, and they so clearly imperilled the peace of the world that they must be deemed to have become violations of international law. This principle was recognized although it was misapplied by the Third Reich. Hitler expressly justified his early acts of aggression against Czechoslovakia on the ground that the alleged persecution of the racial Germans by the government of that country was a matter of international concern warranting intervention by Germany. Organized Czechoslovakian persecutions of racial Germans in Sudetenland was a fiction supported by "framed" incidents, but the principle invoked by Hitler was one which wa have recognized, namely, that governmentally-organized racial persecutions are violations of international law.
As the prime illustration of a crime against humanity under C.C Law 10, which by reason of its magnitude and its international repercussions has been recognized as a violation of common international law, we cite "genocide" which will receive our full consideration. A resolution recently adopted by the General Assembly of the United Nations is in part as follows:
"Genocide is a denial of the right of existence of entire human groups, as homicide is a denial of the right to live of individual human beings;
such denial of the right of existence shocks the conscience of mankin, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.
"Many instances of such crimes of genocide have occurred when racial, religious political and other groups have been destroyed, entirely or in part.
"The punishment of the crime of genocide is a matter of international concern.
"The General Assenmbly therefore "Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices -- whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds -- are punishable; * * *."(Journal of the United Nations, No. 58, Supp.
A-C/P. V./55, page 485; Political Science Quarterly (March 1947), Vol. LXII, No. 1, page 3).
The General Assembly is not an international legislature, but it is most authoritative organ in existence for the interpretation of world opinion. Its recognition of genocide as an international crime is persuasive evidence of the fact. We approve and adopt its conclusions. Whether the crime against humanity is the product of statute or of common international law, or, as we believe, of both, we find no injustice to persons tried for such crimes. They are chargeable with knowledge that such acts were wrong and were punishable when committed.
The defendants contend that they should not be found guilty because they acted within the authority and by the command of the German laws and decrees. Concerning crimes against humanity, C.C. Law 10 provides for punishment whether or not the acts were in violation of the domestic laws of the country where perpetrated. (C.C. Law 10, Article II, 1 (c)). That enactment also provides "the fact that any person acted pursuant to the order of his government or of a superior does not free him from from responsibility for a crime, but may be considered in mitigation."
(C.C. Law 10, Article II, paragraph 4 (b)).
The foregoing provisions constitute a sufficient, but not an entire, answer to the contention of the defendants. The argument that compliance with Gorman law is a defense to the charge, rests upon a misconception of the basic theory which supports our entire proceedings. The Nurnberg Tribunals are not German courts. They are not enforcing German Law. The charges are not based on violations by the defendants of German law. On the contrary, the jurisdiction of this Tribunal rests on international authority. It enforces the law as declared by the Charter and C.C. Law 10, and within the limitations on the power conferred, it enforces internationa law as superior in authority to any German statute or decree. It is true, as defendants contend, that German courts under the Third Reich were required to follow German law (i.e., the expressed will of Hitler) oven when it was contrary to international law. But no such limitation can be applied to this Tribunal. Here we have the paramount substantive law, plus a Tribunal authorized and required to apply it notwithstanding the inconsistent provisions of German local law. The very essence of the prosecution case is that the laws, the Hitler decrees and the Draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime.
We have pointed out that governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can scarcely be said that governmental participation, the proof of which is necessary for conviction, can also be a defense to the charge.
Frank recognition of the following facts is essential. The jurisdictional enactments of the Control Council, the form of the indictment, and the judicial procedure prescribed for this Tribunal are not governed by the familiar rules of American criminal law and procedure. This Tribunal, although composed of American judges schooled in the system and rules of common law, is sitting by virtue of international authority and can carry with it only the broad principles of justice and fair play which underlie all civilized concepts of law and procedure.
No defendant is specifically charged in the indictment with the murder or abuse of any particular person. If he were, the indictment would, no doubt, have named the alleged victim. Simple murder and isolated instances of atrocities do not constitute the gravamen of the charge. Defendants are charged with crimes of such immensity that more specific instances of criminality appear insignificant by comparison. The charge, in brief, is that of conscious participation in a nation-wide governmentally-organized system of cruelty and injustice, in violation of the laws of war and of humanity, and porpotratod in the name of law by the authority of the Ministry of Justice, and through the instrumentality of the courts. The dagger of the assassin was concealed beneath the robe of the jurist. The record is replete with evidence of specific criminal acts, but they are not the crimes charged in the indictment. They constitute evidence of tho intentional participation of the defendants and serve as illustrations of tho nature and effect of the greater crimes charged in the indictment.
Thus it is that apparent generality of tho indictment was not only necessary but proper. No indictment couched in specific terms and in the manner of the common law could have encompassed within practicable limits tho generality of the offense with which those defendants stand charged.