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Last-Modified: 1999/06/09

Morgan uses even more aggressive language:

     "It was not till 1940, that the latter (i.e.
     Lauterpacht) in the sixth edition of the book,[167]
     suddenly, like Saul on the road to Damascus, saw the
     light. He substituted for the heresy he had so long
     endorsed the orthodox doctrine that the plea of
     superior orders is not a defence. Why it should have
     taken Professor Lauterpacht so long to discover this, I
     do not know".[168]

It is noteworthy that Smith himself declares that the
question in issue was not whether in substance the old
wording ought to be preferred to the new one.[169]  Morgan,
too, did not consider himself prohibited from strongly
opposing the change, and in particular its timing and
purpose, notwithstanding the fact that, in the substance of
the matter, he agrees with Lauterpacht and rejects
Oppenheim's former doctrine.[170]  Smith emphasizes as
essential and objectionable the fact that the change in such
an important matter had been made at a time when the
indictment of war criminals had already reached  the stage
of preparation and most of the offences in question had
already been committed. "To cut away a main ground of
defence in this manner is wholly incompatible with our
traditions of justice."[171]

(cc) The London Charter has not created new general
international law, insofar as it made provisions in
deviating from existing international law.

In the first place, the London Charter could create
obligations only between the parties to that agreement, by
reason of the limitation of the binding force of contracts
to the parties thereof.[172]  Likewise, these obligations
extend only insofar as the contracting parties intended to
bind themselves. However, there had been not only a tacit
but an express agreement between the four Allied Powers not
to be bound themselves by the law of the Charter. This
defect makes it impossible to call the London Charter even
only a starting point for general international criminal law
in respect of crimes against peace and humanity and war

The fact that the International Military Tribunal, when
applying the London Charter, did not apply general
international law, is also recognized ever more by writers.
However, first of all, a passage in the judgment of the
International Military Tribunal itself appears to be most

"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."[173]

In the opinion of the International Military Tribunal,
therefore, the Four Powers, by signing the London Agreement,
did not act as legislators of international law; their
legislative power over Germany is based rather upon the
unconditional surrender and the law of occupation.

Schwarzenberger, too, bases the jurisdiction upon a similar
source, namely the assumption of a condominium of the
occupying powers over Germany.[174]  In his opinion, the
Allied Powers, in establishing the International Military
Tribunal, had done only what every occupying power could
have done alone. This assertion of Schwarzenberger's is
again in conformity with a statement in the judgment of the
International Military Tribunal:

     "The Signatory Powers created this Tribunal, defined
     the law it was to administer, and made regulations for
     the proper conduct of the Trial. In doing so, they have
     done together what anyone of them might have done

A particularly sober and explicit comment in this respect is
made by the American scholar of international law, Borchard:

     "...attention must be called to the fact that it was
     not an old or new international law which was applied,
     but a new municipal law, a criminal law which was not
     theretofore known...It must be, therefore, that the
     victors have simply availed themselves of their power
     as victors to judge the vanquished."[176]

Even if here and there particular objections may and must be
raised to the various ramifications of the jurisdiction of
the International Military Tribunal,[177] nevertheless it
may be properly concluded from the statements quoted above
of the International Military Tribunal itself, as well as of
writers in international law, that in exercising
jurisdiction on the basis of the London Charter the
International Military Tribunal has not acted in application
of a general rule of international criminal law.

A different conclusion will also not be reached by reference
to the resolution of the General Assembly of the United
Nations dated 11 December 1946 which (in extract) reads as

     "The General Assembly
     Affirms the Principles of international law recognized
     by Charter of the International Military Tribunal and
     the judgment of the Tribunal."
However, this declaration does not amount to an elevation of
the London Charter to the sphere of general international
customary law. For a condition precedent for doing so would
be that the States recognizing such a rule had been willing
to submit themselves to such notions and to make it a
guiding principle for their future actions in all similar
cases.[178] The representatives of the States voting in the
General Assembly were not empowered at all to make such a
declaration which would bind their Governments.[179]

Otherwise it cannot be explained why the General Assembly,
in the same resolution, directed the Codification Committee
to draft definitions of the offence in question. The purpose
of the direction was, obviously, that far-reaching legal
provisions as those in question, must first be properly
defined before entering into a final discussion on the
question of their general binding character. In conformity
with these facts, Schwarzenberger[180] and Jescheck[181]
reject, therefore, the retrospective effect of the
resolution of the United Nations. Schwarzenberger emphasizes
that the resolution "leaves international customary law
where it was at the time of the judgment."

It is unnecessary to enumerate in detail actual facts and
events. The general observations and the sad statement will
do instead, that since the resolution of the General
Assembly of the United Nations dated 11 December 1946,
international criminal law has by no means gained strength
but has been pushed aside by practical politics and has by
now been entirely side-tracked. This does not refer only to
the fact that the United Nations have not succeeded to
establish an International Criminal Tribunal and that
furthermore the United Nations have not succeeded to define
the term of "aggression." Rather more important is the fact
that in the practice of States the principles of the London
Charter and of the Nuremberg Tribunal, which have been
affirmed by the United Nations, have been and are blatantly
disregarded, and that thereby the creation of international
customary criminal law is prevented. The examples of the
disregard of the principles, e.g. aggressive war as crimes
against peace, are too obvious and numerous to justify a
detailed enumeration in this context. However this general
review of an utterly regrettable political development leads
to the inevitable result in law that the rules of the London
Charter - which originally had not been rules of
international law - have not been transformed into rules of
general international law by customary practice which has
grown up in the meantime.

(dd) The judgment of the Nuremberg International Military
Tribunal of 30 September 1946 has not the force of precedent
in general international criminal law

The absence of the force of precedent from the judgment of
the Nuremberg International Military Tribunal is based, in
the first place, upon the fact that the Tribunal has not
applied international law, but the law of the occupying

Moreover, the Nuremberg International Military Tribunal was
not a genuine international tribunal, but a tribunal of the
occupying powers. This results already from the legal basis
of its establishment. Schwarzenberger has given expression
to this fact by saying that the Nuremberg Tribunal had been
"more akin to municipal war crime courts than to truly
international tribunals."[182]  Verdross, therefore, uses
quite consistently only the term "Interallied Military
Tribunal."[183]  Kelsen[184] and Redslob[185] have
emphasized that the International Military Tribunal had not
been an international court.

But even assuming - wrongly - that the Nuremberg
International Military Tribunal had been called correctly an
"international" court, the tribunal possessed so many
peculiar features as to deprive it of the character of
genuine internationality, and its judgment of the force of
precedent in general international criminal law. In the
Nuremberg Tribunal, legislative and judical functions were
not separated from each other, but both functions were
exercised by various members of the tribunal simultaneously.

The Soviet chief judge, General Nikitschenko, and the acting
French judge, Falco, exercised decisive influence upon the
structure of the Charter, in their capacity as
representatives of their nations at the London
negotiations.[186] The American Acting Judge, Biddle,
participated in the legislative process by being one of the
signatories of the Yalta Agreement by which the United
States expressed its basic view on the questions of
punishment of German war criminals.

A further objection is based upon the fact that the Tribunal
was composed of only representatives of the four big
victorious powers. No neutral judges participated in the
judicial process of the tribunal, and the principle of
parity which is generally recognized in respect of exercise
of jurisdiction in matters of international law, i.e. the
principle of participation of representatives of all the
parties to the case, had not been respected. This defect in
the constitution of the International Military Tribunal was
strongly castigated, in particular by English and American
writers. The Englishman H.A. Smith, e.g., remarks as

     "Do we accept the principle of the independent
     authority of international law, or do we think that the
     victors in war have the right to re-fashion the law in
     order to be able to work their will upon the persons of
     their defeated enemies?"[187]
Smith calls the International Military Tribunal a "national
tribunal of victors,"[188] and this opinion has been adopted
also by Lord Hankey who has expressed it by referring to "a
trial by the victors over the vanquished."[189]  A similar
view has also been voiced by Morgan.[190]

Furthermore, the establishment of the International Military
Tribunal can be attacked by reason of the fact that,
according to the record of the London Conference, it was
established exclusively for the trial of German war
criminals and that it was not intended to extend the scope
of the Charter beyond the trial of German war criminals, nor
even to submit the signatory powers themselves to its
principles. The International Military Tribunal was
therefore a typically extraordinary tribunal which was
established exclusively for the conduct of one single and
actual trial for which the accused were chosen by the
prosecuting authority. The International Military Tribunal
being in the nature of a tribunal "ad hoc" is in
contradiction to the prohibition of extraordinary tribunals,
established in most constitutions respecting the rule of

A further objection of considerable weight against the
composition of the bench in the Nuremberg International
Military Tribunal is the fact that Soviet judges
participated in the trial of crimes against peace although
the Soviet Union had been involved in the aggressive war
against Poland.[191]  However, even the Russian aggression
of Poland can be disregarded and nevertheless the result
will be that the Soviet judges, in respect of trials for
crimes against peace, were disqualified ("judices
inhabiles"), the Soviet Union having been declared to be
aggressor by the League of Nations, in the case of the
Soviet-Finnish war.

For all these reasons, it is impossible to recognize the
London Charter as well as the judgment of the Nuremberg
International Military Court of 30 September 1946 as having
the force of precedent in international criminal law.

The soundness of the objections and of the conclusion
resulting therefrom shall now be restated by way of summary.
Already in 1944, Kelsen[192] called the Moscow Three-
Power_Declaration a claim for jurisdiction of the victorious
States over the war criminals of the enemy. He feared that
such a jurisdiction would raise suspicion of vengeance:

" to the consideration that the criminal jurisdiction
exercised by injured states over enemy subjects may be
regarded as vengeance rather than justice and is
consequently not the best means to guarantee future

Kelsen continues that "punishment of war criminals should be
an act of international justice, not the satisfaction of a
thirst for revenge. It is not compatible with the idea of
international justice that only the vanquished states should
be obliged to surrender their subjects to the jurisdiction
of an international tribunal for the punishment of war
crimes."[194] The victorious States, too, should submit
themselves to the same law and to the jurisdiction of the
same tribunal and have their war criminals tried by the
international tribunal.[195]

When examining the London Charter and the Nuremberg verdict
of the International Military Tribunal, Smith states that
the "fundamental principle" of the "impartiality" of the
tribunal has been violated.[196]

Moreover - and in addition to its nature as a "national
tribunal of victors" - it has been affected with the further
defect that "official aggressors" - this refers to Russia in
respect of its aggression against Finland - had imputed to
another nation the conduct of an aggressive war as an
international crime and had been a judge in the matter of
this accusation.  Smith does not recoil from using the
following language with regard to the case of Russia and

"Before the United Nations came into being, the Charter of
the Nuremberg Tribunal gave dramatic expression to the new
principle that aggression, if successful, has the effect of
promoting the accused from the dock to the bench."[197]

Nuremberg had not been the implementation of international
law as an "independent authority"; Nuremberg rather used
"law as the instrument of power"[198] and thereby adopted a
principle of "Nazi conception of justice."[199]

For these reasons, Nuremberg could not constitute a
precedent for the development of the customary law of

Similar harsh criticism has been voiced by Lord Hankey whose
name - as already mentioned - was included in a German list
of allied "war criminals." He adopted[201] in the first
place, with approval, a few sentences of the Indian judge

     "A trial with law thus prescribed will only be a sham
     employment of legal process for the satisfaction of a
     thirst for revenge. It does not correspond to any idea
     of justice and may justly create the feeling that it is
     much more a political than a legal affair...[202]  To
     say that the victor can define a crime as he will...and
     then punish...would be to revert back to those days
     when he was allowed to devastate the occupied

Lord Hankey then repeats the speech[204] he had made on 5
May 1949 in the House of Lords to support an application for
stay of proceedings against war criminals, made there by the
Bishop of Chichester, Bell[205]. In this speech, Lord Hankey
declared, inter alia, that in Nuremberg and in Tokyo the
victors had tried the vanquished.[206]

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