The Netherlands Law of 10 July 1947 which amends the
preceding law (of 22 October 1943) may serve as an example
of municipal retroactive legislation, in that it added
Article 27(A) which provides:
“He who during the time of the present war and while in
the forces of service of the enemy state is guilty of a
war crime or any crime against humanity as defined in
Art. 6 under (b) or (c) of the Charter belonging to the
London Agreement of 8th August, 1945…shall, if such
crime contains at the same time the elements of an act
punishable according to Netherlands law, receive the
punishment laid down for such act.”
On the strength of such retroactive adoption of the
definition of crimes according to the Nuremberg Charter, the
Higher S.S. and Police Leader in Holland, Rauter, was
sentenced to death by a Special Tribunal, and his appeal was
dismissed by the Special Court of Cassation (see LRTWC XIV
pp. 89 ff). The double contention nullum crimen, nulla
poena sine lege was dismissed by the Court of Cassation on
the grounds that the Netherlands legislator had abrogated
this rule (which is expressly laid down in sec. 1 of the
Netherlands Criminal Law) with respect to crimes of this
kind, and that indeed that rule was not adequate for these
crimes. On p. 120 (ibid.) it is stated:
“From what appears above, it follows that neither Art.
27(A) of the Extraordinary Penal Law Decree nor Art. 6
of the Charter of London to which the said Netherlands
provision of law refers, had, as the result of an
altered conception with regard to the unlawfulness
thereof, declared after the event to be a crime an act
thus far permitted;…these provisions have only
further defined the jurisdiction as well as the limits
of penal liability and the imposition of punishment in
respect of acts which already before (their commission)
were not permitted by international law and were
regarded as crimes…”
“Insofar as the appellant considers punishment unlawful
because his actions, although illegal and criminal,
lacked a legal sanction provided against them precisely
outlined and previously prescribed, his objection also
failed.
“The principle that no act is punishable except in
virtue of a legal penal provision which had preceded
it, has as its object the creation of a guarantee of
legal security and individual liberty, which legal
interests would be endangered if acts about which
doubts could exist as to their deserving punishment
were to be considered punishable after the event.
“This principle, however, bears no absolute character,
in the sense that its operation may be affected by that
of other principles with the recognition of which
equally important interests of justice are concerned.
“These latter interests do not tolerate that extremely
serious violations of the generally accepted principles
of international law, the criminal…character of which
was already established beyond doubt at the time they
were committed, should not be considered punishable on
the sole ground that a previous threat of punishment
was lacking. It is for this reason that neither the
London Charter of 1945 nor the judgment of the
International Military Tribunal (at Nuremberg) in the
case of the Major German War Criminals have accepted
this plea which is contrary to the international
concept of justice, and which has since been also
rejected by the Netherlands legislator, as appears from
Art. 27(A) of the Extraordinary Penal Law Decree.”
The courts in Germany, too, have rejected the contention
that the crimes of the Nazis were not prohibited at the
time, and that their perpetrators did not have the requisite
criminal intent. It is stated in the judgment of the
Supreme Federal Tribunal 1 St/R 563/51 that the expulsions
of the Jews, the object of which was the death of the
deportees, were a continuous crime committed by the
principal planners and executants, something of which all
other executants should have been conscious, for it cannot
be admitted that they were not aware of the basic principles
on which human society is based, and which are the common
legacy of all civilized nations.
See also BGH 1 St.R 404/60 (NJW 1961, 276), a judgment of 6
December 1960 which deals with the murder of mentally
deranged persons on Hitler’s orders. The judgment says
inter alia (pp. 277, 278) that in 1940, at the latest, it
was clear to any person who was not too naive, certainly to
anyone who was part of the leadership machinery, that the
Nazi regime did not refrain from the commission of crimes,
and anyone taking part in these crimes could not contend
that he had mistakenly assumed that a forbidden act was
permissible, seeing that these crimes violated basic
principles of the rule of law.
The Hebrew rule, “No one may be punished unless he has been
forewarned,” which corresponds to the principle of legality
according to the Roman rule, hints at the importance of
warning that a certain action is prohibited. During the
World War, Allied governments gave the Nazi criminals
recurrent warnings that they would be punished, but these
were of no avail. Henry Stimson was right when he said, as
cited in the judgment on “The Jurists” (p. 976):
“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 offence 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.”
28. Learned Counsel seeks to negate the jurisdiction of the
state by contending that the crimes attributed to the
Accused in Counts 1-12 had been committed, according to the
indictment itself, in the course of duty, and constitute
`Acts of State,’ acts for which according to his contention,
only the German state is responsible. In this contention
Counsel bases himself mainly on the theory of Kelsen, as
explained in his works:
“Collective and Individual Responsibility in
International Law with Particular Regard to the
Punishment of War Criminals” (1943), 33 California Law
Review 530 ff;
Peace through Law (1944) p. 71 ff;
Principles of International Law (1952), p. 235 ff.
Learned Counsel basis himself on the rule par in parem non
habet imperium – that is to say, a sovereign state does not
exercise dominion over, and does not sit in judgment
against, another sovereign state – and deduces therefrom
that a state may not try a person for a criminal act that
constitutes an `act of state’ of another state, without the
consent of such other state to that person’s trial. In the
view of Kelsen, only the state in whose behalf the `organ’
(ruler or official) had acted is responsible for the
violation, through such act, of international law, while the
perpetrator himself is not responsible (with the two
exceptions of espionage and war treason).
The theory of `act of state’ was repudiated by the
International Military Tribunal at Nuremberg, when it said
(pp. 222-223):
“It was submitted that international law is concerned
with the actions of sovereign states, and provides no
punishment for individuals; and further, that where the
act in question is an act of state, those who carry it
out are not personally responsible, but are protected
by the doctrine of the sovereignty of the state. In
the opinion of the Tribunal, both these submissions
must be rejected. That international law imposes
duties and liabilities upon individuals as well as upon
states has long been recognized. In the recent case of
Ex Parte Quirin (1942), 317 U.S. 1, before the Supreme
Court of the United States, persons were charged during
the war with landing in the United States for purposes
of spying and sabotage. The late Chief Justice Stone,
speaking for the court, said:
“`From the very beginning of its history, this court
has applied the law of war as including that part of
the law of nations which prescribes for the conduct of
war, the status, rights, and duties of enemy nations as
well as enemy individuals.’
“He went on to give a list of cases tried by the
courts, where individual offenders were charged with
offences against the laws of nations, and particularly
the laws of war. Many other authorities could be
cited, but enough has been said to show that
individuals can be punished for violations of
international law. Crimes against international law
are committed by men, not by abstract entities, and
only by punishing individuals who commit such crimes
can the provisions of international law be enforced…
The principle of international law which, under certain
circumstances, protects the representatives of a state,
cannot be applied to acts which are condemned as
criminal by international law. The authors of these
acts cannot shelter themselves behind their official
position in order to be freed from punishment in
appropriate proceedings. Article 7 of the Charter
expressly declares:
“‘The official position of defendants, whether as heads
of states, or responsible officials in government
departments, shall not be considered as freeing them
from responsibility, or mitigating punishment.’
“On the other hand, the very essence of the Charter is
that individuals have international duties which
transcend the national obligations of obedience imposed
by the individual state. He who violates the laws of
war cannot obtain immunity while acting in pursuance of
the authority of the state, if the state, in
authorizing action, moves outside its competence under
international law.”
It is clear from the context that the last sentence was not
meant, as Counsel contends, to limit the rule of the
“violation of the laws of war” alone. The court expressly
said, as quoted above, that “the principle of international
law which under certain circumstances protects the
representatives of a state, cannot be applied to acts which
are condemned as criminal by international law.”
Indeed, the theory of Kelsen and his disciples (See Defence
Counsel’s written submissions, Vol. I, pp. 532-539), and
also the `limited’ theories referred to by Learned Counsel
(ibid.) are inadmissible. The precedents adduced as
authorities for this theory, e.g., Schooner Exchange v.
McFaddon (1812) 7 Cranch 116, the memorandum of the American
Secretary of State on the subject of the “Caroline,” i.e.,
People v. McLeod (See Moore, Digest of International Law II,
paragraph 175), and other precedents, do not fit the
realities in Nazi Germany. A state that plans and
implements a “Final Solution” cannot be treated as par in
parem, but only as a gang of criminals. In the judgment on
“The Jurists,” it is said (p. 984):
“The very essence of the prosecution case is that the
laws, the Hitlerian decrees and the Draconic, corrupt
and perverted Nazi judicial system themselves
constituted the substance of war crimes and crimes
against humanity, and that participating 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 defence in the charge.”
Drost says in his The Crime of State (Humanicide), pp. 310-
311 (under the caption – “State Crime as Act of State”):
“Any state officer irrespective of his rank or function
would necessarily go unpunished if his acts of state
were considered internationally as the sovereign acts
of a legal person. The person who really acted on
behalf of the state would be twice removed from penal
justice, since the entity whom he represented, by its
very nature would be doubly immune from punishment,
once physically and once legally. The natural person
escapes scot-free between the legal loopholes of state
personality and state sovereignty. But then, this
reasoning in respect of these too much laboured
juristic conceptions should not be carried into the
province of penal law.”
“Immunity for acts of state constitutes the negation of
international criminal law which indeed derives the
necessity of its existence exactly from the very fact
that acts of state often have a criminal character for
which the morally responsible officer of state should
be made penally liable.”
The contention of Learned Counsel that it is not the Accused
but the state on whose behalf he had acted that is
responsible for his criminal acts, is only true in its
second part. It is true that under international law
Germany bears not only moral, but also legal, responsibility
for all the crimes that were committed as its own `Acts of
State,’ including the crimes attributed to the Accused. But
that responsibility does not detract one iota from the
personal responsibility of the Accused for his acts. See
Oppenheim-Lauterpacht, paragraph 156 b:
“The responsibility of states is not limited to
restitution or to damages of a penal character. The
state, and those acting on its behalf, bear criminal
responsibility for such violations of international law
as by reason of their gravity, their ruthlessness, and
their contempt for human life place them within the
category of criminal acts as generally understood in
the law of civilized countries. Thus if the government
of a state were to order the wholesale massacre of
aliens resident within its territory, the
responsibility of the state and of the individuals
responsible for the ordering and the execution of the
outrage would be of a criminal character.”
“…It is impossible to admit that individuals, by
grouping themselves into states and thus increasing
immeasurably their potentialities for evil, can confer
upon themselves a degree of immunity from criminal
liability and its consequences which they do not enjoy
when acting in isolation. Moreover, the extreme
drastic consequences of criminal responsibility of
states are capable of modification in the sense that
such responsibility is additional to, and not exclusive
of, the international criminal liability of the
individuals guilty of crimes committed in violation of
International Law.”
See also ibid., paragraph 153a (p. 341):
“…No innovation was implied in the Charter annexed to
the Agreement of August 8, 1945, for the punishment of
the Major War Criminals of the European Axis inasmuch
as it decreed individual responsibility for war crimes
proper and for what it described as crimes against
humanity. For the laws of humanity which are not
dependent upon positive enactment, are binding, by
their very nature, upon human beings as such.”
The repudiation of the contention as to an `Act of State’ is
one of the principles of international law that were
acknowledged by the Charter and Judgment of the Nuremberg
Tribunal, and were unanimously affirmed by the United
Nations Assembly in its Resolution of 11 December 1946. In
the formulation (on the directions of the Assembly in its
Resolution No. II 177) by the International Law Commission
of the United Nations, of these acknowledged principles,
this principle appears as Principle No. 3:
“The fact that a person who committed an act which
constitutes a crime under international law acted as
Head of State or responsible government official does
not relieve him from responsibility under international
law.”
In Resolution No. 96(i) of 11 December 1946, too, in which
the UN Assembly unanimously affirmed that `genocide’ is a
`crime under international law,’ it is stated that
“principal offenders and associates, whether private
individuals, public officials or statesmen” must be
punished for the commission of this crime, while the
Convention for the Prevention and Punishment of Genocide
expressly provides in Art 4:
“Persons committing genocide or any of the other acts
enumerated in Art 3 shall be punished whether they are
constitutionally responsible rulers or private
individuals.”
This article affirms a principle acknowledged by all
civilized nations, in the words of the International Court
of Justice in its Advisory Opinion referred to, and inasmuch
as Germany, too, has adhered to this Convention, it is
possible that even according to Kelsen, who requires an
international Convention or the consent of the state
concerned, there is no longer any ground for pleading an
`Act of State.’ But the rejection of this plea does not
depend on the affirmation of this principle by Germany, for
the plea had already been invalidated by the law of nations.
For these reasons we dismiss the contention as to `Act of
State.’
29. In his written submissions (Volume I, pp. 550-552),
learned Counsel has based himself on the strict
interpretation of the term `crime against humanity’ given by
the Nuremberg International Tribunal according to Art 6(1)
of the Charter, which excludes from its jurisdiction many
crimes of this kind which had been committed by Germany
before the outbreak of the War. In its judgment on the
Major War Criminals, the Tribunal said (p. 254):
“To constitute Crimes against Humanity, the acts relied
on before the outbreak of war must have been in
execution of, or in connection with, any crime within
the jurisdiction of the Tribunal. The Tribunal is of
the opinion that, revolting and horrible as many of
these crimes were, it has not been satisfactorily
proved that they were done in execution of, or in
connection with, any such crime. The Tribunal
therefore cannot make a general declaration that the
acts before 1939 were Crimes against Humanity within
the meaning of the Charter.”
It is our view that no conclusion may be drawn from this
interpretation of the Charter, for it is based on an express
proviso to Art. 6(c) of the Charter, which does not appear
in the definition of “crime against humanity” in Art. II
1(c) of Control Council Law No. 10. The last words in the
passage cited above: “crimes against humanity within the
meaning of the Charter” indicate that, but for the special
proviso to Art. 6(c), the Tribunal would have deemed these
crimes “crimes against humanity.” It is true that,
notwithstanding the conspicuous omission of this proviso
from Control Council Law No. 10, two of the American
Military Tribunals decided in subsequent cases (the `Flick
Case’ and the `Ministries Case’) to apply the above-
mentioned proviso to the last-mentioned law; but two other
Tribunals have expressed a contrary opinion (in the
`Operations Units’ and the `Jurists’ cases), and we think
that their opinion, which conforms to the letter of the law,
is correct. See also the reasons – which we find convincing
– advanced by the Chief American Prosecutor, General Taylor,
in his argument in the `Jurists’ case. It must be noted
that judgments under Control Council Law No. 10 applied the
definition of “crime against humanity” to all crimes of this
order which were committed during the period of the Nazi
regime, i.e., from 30 January 1933. See H. Meyerowitz, La
Repression par les Tribunaux Allemands des Crimes contre
l’Humanite, 1960, p. 233.
No great practical importance attaches to this question for
the purpose of this case, seeing that most of the crimes
attributed to the Accused were committed during the War or
in connection with it (according to the Nuremberg judgment,
Hitler’s invasions of Austria and Czechoslovakia constitute
“crimes within the jurisdiction of the Tribunal,” within the
meaning of the proviso to Art. 6(c) [of the Charter]; see
ibid., Vol. 22, pp. 643, 662). At all events, it seems to
us, in the light of the general definition in Control
Council Law No. 10, of “a crime against humanity,” that the
proviso to Art. 6(c) of the Charter does not limit the
substantive nature of a “crime against humanity” under
international law, but has only limited the jurisdiction of
the Nuremberg Tribunal to try crimes of this kind which are
bound up with “war crimes” or “crimes against peace.” See
also Oppenheim-Lauterpacht (7th ed.) II, para. 257, p. 579,
note (5) and authorities there cited.
Last-Modified: 1999/05/27
