Consequently, the American Military Tribunal is not relieved from the obligation to undertake an examination of the substantive validity of the London agreement and of the rules applied to its execution, all the more as military Tribunal No. III, in my opinion, has adhered to this conception in its opinion in the trial against Altstoetter and others. The examination as to the "constitutionality" is here replaced by the obligation to examine the London agreement enacted on a fallacious basis with respect to its compatibility with the superordinate, general rules about the efficacy of agreements of international law. Moreover, article 2 of Decree No. 7, issued by the Military Government on 18 October 1946, and dealing with the constitutionality and jurisdiction of specific .Military Tribunals, is no obstacle to this examination. The aforementioned decree ordains that:
"The courts or its members or deputy members cannot be challenged counsels". Article 2e of Decree No. 7 combines twoviews which, as a rule, are dealt with separately according to German penal law namely:
the challenging of the judge and the assertion of procedural objections. The Decree No. 7 authorizes to determine such a restriction of the procedural rights of the defendants. In this case, however, no assertion of such procedural rights is in question. A challenging of certain judges or the entire Court is by no means intended here. Neither do I challenge the procedural jurisdiction of the Court. On the contrary, the objections are of quite a different nature which are not supposed to be ruled out and cannot be ruled cut by Article 2e of Decree No. 7. I raise the question whether the trial, in view of the story of the origin in international law concerning the provisions for the punishment of the war criminals, is admissible at all.
Therefore, not the mere substantive or local jurisdiction of the Court as such is challenged (this would be immaterial according to article 2 of the aforementioned decree) but the fundamental question is raised whether the entire system of the substantive and procedural rules, issued for thejudgment of the War crimes, in view of their origin, has a claim for legal validity at all. Such a statement can obviously not be ruled out through a regulation as it is contained in Article 2e of the Decree No. 7. Bluntly expressed: A materially or formally invlaid law cannot evade the examination by ruling it out; on the contrary, the right and also the duty of a judge to examine any rule will under all circumstances prevail. In my opinion, the London Protocol, dated 8 August 1945, with all its rules issued for its supplementation and implementation represents a new institution of law from the point of view of international law, and from the political point of view , an experiment. The London agreement, including its implementation rules, must be counted to those agreements which, in view of the subtleness of the questions dealt with, can only then have a claim of legal validity and general respect in the future, if those agreements themselves have been concluded in a politicly loyal manner by politically loyal partners. If this is the case, it will be possible that the principles, laid down for the first time in this agreement and applied in practice for the first time in Nurnberg, will be recognized and will have a claim for legal Validity in the future.
If this, however, is not the case, the public conscience will some day, sooner or later, form its negative judgment about this sort of trial, regardless of the number of actually concluded trials and the number of convictions pronounced, and the time is bound to come when this kind of trials is considered an abuse and not a development of international law, and when the conduct of these trials is no longer regarded as a generally binding administration of penal justice.
The sentence: "Nobody can be a judge in his own cause" is considered a matter of course by the national penal law. The slogan of "Judex inhabilis" states: The judge is precluded from the exercise of his duty if he himself is injured by the criminal act or has retained certain close connections with the offender. Another reason for the preclusion of a judge, because this is absolutely obvious, is not even mentioned in the procedural systems. The judge can neither then perform his duty as a judge if he is suspected as an offender or participant in connection with the criminal act on trial. As opposed to the national penal law it is obvious that the principles of "Judex inhabilis" can only claim a lesser significance in international law, Only in very rare cases will it be possible in international tribunals to prevent the participation of those states which themselves have been directly or indirectly injured by the acts on trial, and the objections are based on the very "incompatibility" which have been raised again and again in all countries against the exercise of a judicature which is based on international law. It is not intended in this connection to go into further details with regard to this question. for this case, are those principles which apply to the juridical unsuitability of the person suspect of the act. The accomplice in a war crime or even more so the instigator of such a crime may not be considered suitable to participate as a judge in the trial against war crimes of that kind.
protocol to the non-aggression pact with Germany. From the viewpoint of international law the attitude of the Russian authorities, at least with respect to Poland, represents a breach of the treaty of 25 July 1932; in this treaty the Soviet Union had given guarantees not to take a part in a treaty which was directed against the other treaty partner. Now it is hardly possible to conceive of a harsher form of agreement, directed against another state, than that which prepares and makes possible the military annihilation and partition of the partner. And it is furthermore difficult to think of a cruder form of "adoption" of or "participation" in such a treaty than that chosen by the USSR; for, as seen politically, it involves a partition agreement confined solely to the USSR and the Reich which was made possible by the use of arms. The fact that both States, Germany as well as the USSR, "considered" or "would be willing to consider" the possibility of maintaining a Polish State of reduced territory, has no more weight, with respect to the clear demarcation of the spheres of interest, than the fact that the decisive military campaign was to be undertaken by the Wehrmacht while the Soviet Union .at first remained in the background. based on the "disintegration", or "discontinuation" of the Polish State, which in the eyes of the Soviet Union brought about the end of Polish sovereignty and thus also ended the Soviet non-aggression obligations under the pact of 25 July 1932, does not pertain to this case and can only be regarded as an excuse. For at this time Poland was not even considered incapable of waging war (debellatio) from the German viewpoint, and the German military as well as the Polish government offices were surprised by the premature entry of the Soviet troops into Polish territory. Even this is not relevant. For the Soviet-Polish agreement of 25 July 1932 was not broken on 14 Sept.
1939, the day they marched in, but already on 23 August when the secret treaty was made. Poland according to international law, but a violation of world peace generally, and thereby an offense under international law against the nations of the world. The Soviet Union was also bound, aside from its regional, non-aggression and neutrality pacts, as a signatory to the p rovisions of the Kellog pact, which it attempted to endow with special importance, in its diplomatic negotiations, by describing many of the non-aggression pacts it signed with the border states after the Kellog pact went into effect, as "extending" and "furthering" the ideas of the Kellog pact; and the Soviet-Polish non-aggression pact specifically refers to the Kellog pact. The Soviet Union had a similar duty to ensure the peace in its capacity as a memb er of the League of Nations since 1932. Union does not only fulfill the prerequisites for a so-called violation again international law, which have been recognized by international law long ago. Further than that there is an offense against international law according to the London Statute of 8 Aug. 1945. can only be applied indirectly here. On the other hand it must be considered that the matter goes deeper. The same principles which are valid for the judge must also be valid for him who gives directions to the judge and establishes the norms upon which his decisions must be based. An international agreement which is designed to punish war criminals can only command respect and have value if all of the partners thereto are free from blame in regard to those crimes the judging of which they are turning over to a special court through a special law. If, however, one of the contracting powers has placed itself outside of international law through participation in crimes which form the object of the indictment, then the jurisdiction of the tribunal is vitiated by an irremediable fault, regardless of which victor nation provides the judges.
Considered from a strictly legal point of view, such a trial procedure cannot represent a "contribution to the development of international law", for an agreement so arrived at lacks from the beginning that authorization from the "Conscience Publique" which such a new development in international law must have if it is to be effective. The participation of a disloyal partner destroys the authority of such an agreement and may also put the collaboration of the non-incriminated partners in a light which will unfavorably affect the claim for validity of the international agreement. For it is surely recognized in the civil law systems of all civilized countries that among the required prerequisites, the personal qualities and circumstances of the contract partner are usually used as a tacit, universally subordinate basis for the contract. This is especially the case - if we may first refer to civil law - in contracts which are either long term or have special confidential conditions as a basis. In these cases the personal affairs of the contract partner are especially important. Now if the partner craftily suppresses traits which would make him unfit as a contract partner if they were examined objectively, and would justify the withdrawal of the honest partner from the planned agreement, or if he uses deception concerning their existence, then it is generally accepted that the basis for such a contract has disappeared. al law (which is proved by parallel instances in international treaty law), the destructive and annulling effect of the presence of such contract partners, who themselves have no qualification to contract such agreementss. If, for instance, a continuously neutral country, like Switzerland, joined an alliance which had been formed by two other countries, then, because Switzerland could not act correspondingly, its entry into such an alliance would be illegal and could have no legal effect.
And for this reason, when Switzerland joined the League of Nations in 1920, it made a declaration on 13 Feb. 1920 whereby it relieved itself of any military obligatio ns which were incumbent on all members of the League. Only through such a declaration could Switzerland join the League of Nations. Soviet Union to make agreements in general by saying that its agencies were guilty of certain acts according to the London Treaty. But there is an impediment ex persona in the way of participation by the Soviet Union in such international agreements which regulate the punishment of the authors of crimes against the peace. This follows from the following considerations: the moral meaning of such treaties would be reversed if states which had themselves committed the same crimes or allowed them to be committed by their agencies, could participate in forming such treaties. world opinion that it would not be able to recover. And finally, the remaining, loyal partners to such an agreement would necessarily have to lose their own position as guardians of international legality as a result of making pacts with one outside the community of nations. This so much the more since the bare fact that, in line with the London Statute and Law 10 of the Control Council, the victors are judging the vanquished, which is in itself a great moral encumberment to the agreements. they are made by parties which are not also guilty. This is not the case with Law 10 of the Control Council. Therefore, the Control Council Law 10, after thorough and objective examination - in connection with this (I refer you) to my motion of 9 December 1947, which I have also directed to the Military Tribunal Court No. II - has not gained legal validity because it stands in contradiction to international law.
It is not without reason that Christopher Emmet says in his "Verdict on Nuernberg", on page 138 in the 22 Nov. 1946 issue of "The Commonwealth":
"If, however, all of the judging nations had come to Nuernberg with clean hands, the verdicts might have really been the milestones in history that Judge Jackson believed them to be. Unfortunately, however, against the findings in Nuernberg we must raise the constantly increasing suspicion that the leaders of one of the judging countries should have been sitting on the defendants bench with the Nazi criminals." the basis for this trial.
Article II, 4b of the Control Council Law No. 10 orders:
"The fact that a person acted under orders of his responsibility for a crime; but it can be considered as an extenuating circumstance."
from responsibility could no longer be considered, under any circumstances. Accordingly, the defendants at these trials could not refer to the higher orders they received with the idea of complete exoneration. before the Control Council Law No. 10 was passed. Even in the Anglo-Saxon countries the prevailing school of thought generally favored the conception that the defendant in a war crimes trial had to be allowed the defense that he acted on higher orders.
I add the following quotations to this statement: in the 1914 edition, which was valid until 1944, states word for word as follows:
"Members of the combat forces who commit violations the enemy."
further determines that acting on higher orders constitutes complete justification so far as war crimes are concerned. This conception ruled British jurisprudence for decades, almost until the end of World War II.
It says further in the British manual:
"They can punish the officials or commanders who are measures that are described in this chapter."
the head of the state, the members of the government, as well as the higher commanders of the armed forces and other commanders who are independently responsible for an original order. 1940, which is still valid today, agrees with these directives almost verbatim. It says:
"Individual members of the armed forces are not to or commanders."
Prof. Max OPPENHEIM, co-author with Col. EDMONDS of the rules of warfare of the British MANUAL OF MILITARY LAW and for many years chief advisor of the British admiralty on questions of international law, has this to say on the subject, in his work on "INTERNATIONAL LAW", volume II, 1st to 5th edition, paragraph 253:
"Violations of the rules pertaining to warfare are concerned.
If the members of the armed forces by the enemy; the latter may then use reprisals.
be punished; for the commanders are alone responsible and the latter may therefore be punished by the enemy as war criminals when they are captured."
Prof. OPPENHEIM, who for many years was the leading authority on international law in Great Britain, held to this opinion throughout his life.
English and American law agrees on this point. George MANNER, the American expert on international law, in an article on "the legal Nature and Punishment of Criminal Acts of Violence contrary to the Laws of War" in American states the principle that members of the armed forces of a nation could not be held personally responsible for acts that violate the rules of warfare which they commit by order or with the consent of their government or their military superios, should be considered a rule of the usages of warfare that a universal tenet of International Law that reference to higher orders is excluded, existed neither during the 1st nor during the 2nd World war.
Nor has it materialised yet since 1945. In this respect however Control Council law No. 10 is in opposition to International Law. It cannot, as a one-sided act of the victorious powers, invalidate the pertinent international norms. Therefore it cannot hinder reference to a higher order either as justification of acts violating International Law, On this point, the already mentioned Prof. Lauterpacht declares:
"The cause of International Law demands not merely crime.
It demands also that such a punishment takes place in conformity with International Law."
these statements to higher orders for the purpose of achieving exoneration in full. In the event of the Honourable court not following this argumentation by reasons of the "being bound by a statute (positives) law" then it is faced with a further weighty problem which can be summarized in the following way: limited to a punishment of their own choice of those provided for in Art. II No. 3 of Law No. 10; a limitation in accordance with the rules of International Penal Law of the power of jurisdiction of the Court result in the selection of the punishments names in Art. II No. 3. Trials already carried through. There was no occasion for opening it either in view of the wording of Art. II No. 3 of the Law in so far not to be misunderstood. In the meantime, however, legislative facts have entered which make necessary legal examination of the extent of the authority to inflict punishment by the Court. abolished capital punishment for the sphere of its jurisdictional competence. Therefore the question arises: has to decide and pass sentence in accordance with a statute based on international agreement, even then when the death penalty provided by this Statute has been abolished subsequently and on principle by one of the Treaty States of the Statute? all the immediate decision on two preliminary questions. First of all, the international range of Control Council Law No. 10 has to be checked, as to the penal sanctions of which the deeds of the defendants are subject, according to paragraph 1 of the indictment, in the first instance.
Further, the international range of the Abolition Law of the USSR dated 20 May 1947 has to be ascertained. After these preliminary questions have been clarified the deductions for the concrete case are reached. International Range of Law No. 10. Law No. 10 was issued by the Inter-allied Control Council for Germany. By unanimous interpretation at home and abroad, however, it did not become thereby primarily a "German Law"; only in so far as in certain exceptional eases, Art. II 1c, the trial of crimes against humanity directed against Germans has been handed over to German Courts might one speak of a "transformation" of Law No. 10 into a national international German Law.
In all other cases the character of Law No. 10 remains unaltered, and indeed it is a statutory, interallied - that is "foreign law", passed by an Interallied authority (Control Council) aiming at German war criminals. Looked at materially however, a "foreign Law" as such does not exist; looked at from a legal validity point of view, Control Council Law 10 as already explained is therefore no Law but a State Treaty between the Four Allied Main Powers, looked at as a treaty from a technical point of view, an international (created by the Control Council as an international organ) Agreement implementing the Moscow Declaration dated 30 October 1943 and the London Agreement dated 8 August 1945. That the Allied Powers themselves wished to ascribe such a character to Law No. 10 is revealed beyond doubt by the following points:
(a) the circumstance that the preamble of Law No. 10 30 October 1943/8 August 45.
(b)the fact that national German Courts are expressly forbidden judicature on the basis of Law No. 10 in special orders of the Zone Commander (Art.
III No. 1 within limits.)
Law No. 10 is therefore first and foremost an International Agreement between the four signatory powers for punishing war criminals. Since, however, the Courts of the Treaty Powers have to base their decisions directly on this agreement Law No. 10 has become simultaneously an integral part of the internal law of the Treaty States. Thereby it has the same dual nature as the majority of international conventions. of the abolition of capital punishment in the USSR on this norm must be investigated firstly in its capacity as international Agreement and secondly in its capacity as national law.
THE PRESIDENT: Dr. Aschenauer, may I interrupt you for a moment please? If you regard Control Council Law 10 as in effect a treaty between the signatory powers how do you argue that any change in the internal law of the Soviet Union affects this international agreement?
DR. ASCHENAUER: Your Honor -
THE PRESIDENT: Let's suppose that the Soviet Union changed the law of succession or in some way modified the law of property, how would that effect an international treaty?
DR. ASCHENAUER: Your Honor, this question will be answered to in the following statements in my plea, if I may continue, I shall answer to your question in the rest of my final plea. The International Range of the Abolition Law of the USSR dated 20 May sovereign state can at any time undertake an alteration of her internal national law, and indeed particularly even if this internal law is based on an International Agreement. The Soviet Union is consequently justified to alter Law No. 10 in its capacity as National Soviet Law with effect for the Soviet sphere of jurisdiction, particular, to determine that the death sentence provided for by Art. II No. 3a of this Law may no longer be pronounced. Law No. 10 has become also a part of the internal law of the remaining parties of the Treaty, the USA, England, etc. that the Abolition Act pronounced by the USSR does not affect in itself the corresponding legal system of the USA, England, etc; looked at from a concrete point of view, the remaining parties to the Treaty can therefore continue to apply the death penalty in accordance with Art. II No. 3a of Law No. 10 for the sphere of their jurisdictional authority without taking into consideration whether the Soviet Union has abolished capital punishment or not. This is inherent in the already mentioned character of Law No. 10 which is not merely an international convention but also an internal law of the Treaty States. Such a way of looking at it and a result of this kind would only be impartially justified however if Law No. 10 were only a norm of the Internal Law of the Treaty States. This, however, is not the case as explained. Law No. 10 is at the same time an International Agreement. The question is therefore whether the Law of the USSR dated 20 May 1947 cannot be regarded as a tacitly undertaken notice of termination of this Agreement in so far as this provides for the death penalty in Art.
II No. 3a, at least however as a tacitly given explanation that the USSR no longer looks upon this agreement as valid as regards the means of punishment (death sentence) provided for and therefore advocates the point of view that, from a treaty point of view, the other signatory powers were no longer justified in pronouncing the death sentence. Looked at from a concrete point of view, the fact as to whether Law No. 10 is still supported by the "communis opinio" of the parties to the Treaty as regards justification for pronouncing the death sentence has to be examined.
Law No. 10 as repeatedly stressed by its originators and its immediate predecessor, the Nuernberg Statute, is issued to make victory possible for the so-called material justice. In the interests of this high aim the Nuernberg Statute and the subsequent Control Council Law No. 10 have put up even with constructions foreign to continental legal thought like for example the sacrifice of the sentence "Nulla poena sine lege poenali praevia". The circumstance that the Nuernberg Statute as well as Law No. 10 are satisfied with the element of violation of international law and the element of violation of public morals of the deed as norms of the time of the deed establishing criminal responsibility, showsclearly that in the interests of material justice express declaration of punishableness of the incriminating actions by defining special criminal facts of the case of the national legal system is to be desisted from. With that it is established that the Nurnberg Statute as well as Law No. 10 wanted to give precedence to the idea of material justice rather than the restriction rooted in continental thought "Nulla poena sine lege poenali praevia". Examination of the legal and political expediency of a step of this kind exceeds the limits ascribed to the plaideyer. From this fact however the obligation results, it is true, to advance the following sentence:
the general conviction (communis opinio) of the objection It results that the provisions of Art.
II No. 3 of Law No. 10 without detriment to their further continued validity are to be subjected to revision then if forcible proofs are given for the fact that such a communis opinio between the signatory powers no longer exists at all or at least no longer exists in the sphere of selection of means of punishment in question. however, such a fundamental significance which causes the material continued effectiveness of Art. II No. 3a of Law No. 10 to be in question. The reasons for this may be classified in two groups:
a) The penal law of the Soviet Union has always been inclined to abolitionism in principle. 1919 as in the federal principlesof the penal legislation, as also in penal codes of the states (save for individual groups of crimes), the penal law in the USSR, notwithstanding Article 14 Subsection 21 of the Federal Constitution of 5 December 1936 is essentially still states' law, i.e. regulated by the laws of the individual federal republics; in 1922 and 1926, capital punishment is designated always and only as a temporary measure caused by the then existing circumstances, bound to be abolished in principle or without exception as soon as conditions would permit. The fact that, by the penal coes in force, a relatively great number of acts was punishable by death cannot, in agreement with authoritative soviet-official conception so far, be taken as an argument against the basically provisional nature of this institution. This is given expression also by the so-called federal law of 20 May 1947, specifying that the promises for the application of the death penalty no longer exist and thereby emphasizing again the basically provisional nature of the supreme penalty.
b) Also, the Soviet Union did not restrict itself to abolishing the death penalty ex nunc only and with effect in its own national territory only, in the sense of internal state's law. Rather does the law, in connection with implementation instructions decreed by the Soviet Military Administrations in occupied foreign territory, make it clear that the abolition shall have an absolute and comprehensive effect:
1. The abolition applies also to former enemy territory occupied by the Soviet forces within the framework of the Potsdam Agreement;
2. the abolition applies not only to ordinary civilian courts but as well to proceedings before military end special courts, and especially also to those Soviet Courts which have been established in the East-Zone and in the USSR proper to prosecute the crimes specified by Control Council Law No. 10:
3. the abolition has effect ex tune (a consequence of the principle postulated by Article 3 of the Introductory Law to the Penal Code of the UDSSR of 1926; retroaction of the more lenient, i.e., in thiscase, of the abolitionary law, is obligatory. in the meantime been drawn by the courts of the USSR. In the trial against the members of the 9th Police Reserve Battalion, who, in particular also had to answer charges specified by Article III 1c of the Law No. 10, no death penalties were pronounced, although the court in its sentence stated that according to the previous Legal Penalty the conditions calling for capital punishment had existed; instead, they were sentenced to hard labor for different length of time, i.e. a maximum of 25 years, in accordance with the limitation by Soviet Federal Law of 20 May 1947. It must, therefore, be considered as being beyond doubt that the internal legislation of the Soviet Union has in principle changed course since the publication of Control Council Law No. 10. Concretely it looks like this: if, in the case under consideration, a military court of the Soviet Union had to decide, the inapplicability of Article II subsection 3 would be incontestable. In the relation of the Signatory Powers to each other the communisopinio, therefore, in matters concerning the quality and quantity of punishment has disappeared which yet existed at that time, when every one of the four Signatory Powers knew the possibility of the death penalty in accordance with the law of their nations. of International Penal Lay:
Law. For, as stated, Law No. 10 is not only an international treaty but also an internal norm of penal law of the signatory nations. In itself, the contents of this internal norm is not, as regards the remaining signatories, especially the USA, affected by the unilateral change of the law by another signatory nation (USSR). Regarded generally and basically, therefore, the military courts of the USA judicating on the strength of Law No. 10 are, without question, justified to apply Article II subsection 3 a. The question is only whether this jurisdiction power is not restricted in cases in which there exists a cogent point of contact regarding international penal law with the jurisdictional powers of the USSR. It is, therefore, to be examined in how far reasons of international penal law restrict the applicability of Law No. 10 in its character as internal norm of penal law of the signatory powers. I shall show that in this present trial, too, for reasons of fairness and the generally accepted ideas of justice, Control Council Law No. 10 is not to be implemented by the legal institution of European average penal law. This my opinion is supported by the verdict of the Jurist Trial, Case III, where it says on p. 41 of the German version: "Although this tribunal is composed of American judges, trained in the system and the rules of Common Law, it, nevertheless, is in session on the strength of international authority and can let itself be guided only by the basic principles of justice and fairness which underlie every civilized conception of law and legal procedure." International or even national military courts exercising penal jurisdiction on the strength of an international statute, are a novum in the history of International Law. This is the reason for the lack of cases of precedence which would permit an immediate solution of the quetion under discussion. Yet, International Law - in a steady evolution of now almost hundred years duration - has developed legal doctrines which are applicable to the case in hand at least by analogy. I have in mind the legal principles, created in international extradition laws, and which are, today, universally acknowledged.