Against Nazi Germany’s abandonment of the maintenance of
peace, the human race employed military measures and
ventured forth, with weapons in hand, to protect its
existence. Against the legal vacuum and chaos,
mankind employed new legal principles, or more correctly –
gave expression to those principles which had been
entrenched and rendered sacred and which had become the
heritage of all civilized peoples. Anyone wishing to
discover the sources of public international law beyond
Vattel and Grotius will be able to find them in Chapter 1 of
the Book of Amos: “For three transgressions of Edom, and for
four, I will not turn away the punishment thereof.” But
perhaps it will not be necessary to go so far back. In order
to fill the legal vacuum it was absolutely essential to
formulate principles having retroactive application, since
if that had not been done, the greatest sinner would have
had the greatest reward. Whoever decreed without law and
without judges that it was permissible to cast off every
legal and moral restraint would have been rewarded by the
fact that there was no law which he had infringed, since
any law which could be imposed upon such a criminal, after
he had been overcome and defeated, could only have been a
retroactive one. We shall still have to consider whether the
acts of Adolf Eichmann were lawful even according to the
laws of Germany, and even according to the law of the
internal jurisdiction of that country’s SS.
But we are not dealing with that now. I maintain that the
human race had no alternative but to proclaim a formulation
of the principles of international law and to declare “these
principles applied also at the time when you committed these
acts and all the terrible crimes that you perpetrated,”
because if they failed to do so, there would be no law by
which the Nazi criminals could be judged.
And now let us see how these matters developed in the
various stages of international proclamations. First of all
there was the Moscow declaration of 1 November 1943, signed
by Roosevelt, Churchill and Stalin. The Court will be able
to find it, amongst many other references, in the
publication called “The Green Series” (Trials of War
Criminals before the Nuremberg Military Tribunal). This is
an official American publication called “The Subsequent
Trials” – not the `major’ trials, but the trials of less
important cases. I read from the fourth volume on page X:
“THE UNITED KINGDOM, the United States and the Soviet
Union have received from many quarters evidence of
atrocities, massacres and cold-blooded mass executions
which are being perpetrated by the Hitlerite forces in
the many countries they have overrun and from which
they are now being steadily expelled. The brutalities
of Hitlerite domination are no new thing and all the
peoples or territories in their grip have suffered
from the worst form of government by terror. What is
new is that many of these territories are now being
redeemed by the advancing armies of the liberating
powers and that in their desperation, the recoiling
Hitlerite Huns are redoubling their ruthless
cruelties.”
This declaration warns and provides that war criminals, the
transgressors, will receive their punishment and will be
brought to trial for their actions.
After the victory there followed a declaration containing
the agreement known as the `London Agreement’ of 8.8.45.,
which is to be found in the same volume on page XI, an
agreement which was reached between the Governments of the
United States, France, the United Kingdom and the Soviet
Union, and which laid down that an international military
tribunal would be established to try the Nazi war criminals,
and also that other courts would be set up for the same
purpose. In terms of this agreement the Four Powers drew up
the charter known as the `Nuremberg Charter’ – the Charter
of the International Military Tribunal – which is also to be
found in the same volume at page XIII. Here we find the
definition of the crimes for which the criminals would be
brought to trial. Article 6 (a) specifies crimes
against peace, 6 (b) war crimes and 6 (c) crimes against
humanity. Crimes against humanity are – and I quote from the
English version -:
“CRIMES AGAINST HUMANITY: namely, 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.
Leaders, organizers, instigators and accomplices
participating in the formulation or execution of a
common plan or conspiracy to commit any of the
foregoing crimes are responsible for all acts performed
by any persons in execution of such plan.”
Thereafter the Occupying Powers in Germany adopted the
CONTROL COUNCIL LAW No. 10. This is to be found in the same
volume on page XVIII and the law lays down – I quote from
the English version – (the date of signature is 30 October
1943, but it was released for publication only on 1 November
1943).
“In order to give effect to the terms of the Moscow
declaration of 30 October 1943 and the London Agreement
of 8 August 1945, and the Charter issued pursuant
thereto and in order to establish a uniform legal basis
in Germany for the prosecution of war criminals and
other similar offenders, other than those dealt with by
the International Military Tribunal, the Control
Council enacts as follows:
Article I
The Moscow Declaration of 30 October 1943 `Concerning
Responsibility of Hitlerites for Committed Atrocities’
and the London Agreement of 8 August 1945 `Concerning
Prosecution and Punishment of Major War Criminals of
the European Axis’ are made integral parts of this Law.
Adherence to the provisions of the London Agreement by
any of the United Nations, as provided for in Article V
of that Agreement, shall not entitle such Nation to
participate or interfere in the operation of this Law
within the Control Council area of authority in
Germany.
Article II
Each of the following acts is recognized as a crime:
(a) Crimes against Peace. Initiation of invasions of
other countries and wars of aggression in violation of
international laws and treaties, including but not
limited to planning, preparation, initiation or waging
a war of aggression, or a war of violation of
international treaties, agreements or assurances, or
participation in a common plan or conspiracy for the
accomplishment of any of the foregoing.
(b) War Crimes. Atrocities or offences 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 labour 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.
(c) Crimes against Humanity. Atrocities and offences,
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.
(d) Membership in categories of a criminal group or
organization declared criminal by the International
Military Tribunal.”
My submission is that all these declarations only serve to
define by means of formulation and codification, principles
which have long been accepted by civilized peoples. They did
not create anything new. They merely established that murder
is – murder; persecution is – persecution; robbery is –
robbery; and even if that be called `the Fuehrer has ordered
– we follow!’ still that is murder, persecution and robbery.
And this is what the International Military Tribunal said in
its judgment.
May I be permitted to observe that in that tribunal there
sat lawyers who were amongst the very best of the states
which constituted it. These were not military judges, even
though the tribunal was called military. It comprised
professional judges of the highest rank, from all the
countries which established the tribunal. Amongst them are
judges serving to this day in the highest positions. And if
at any time until the present the human race was ever united
in the sphere of law to define a common law, it was on that
great occasion at Nuremberg. I read from the judgment in
Vol. I of the official English version. This is called the
`Blue Series,’ Your Honours. This judgment is to be found
there twice, once in volume 1 and once in volume 22 of the
same series, both in English, German and French; all of them
official editions.
In referring to the law of the Charter, the International
Military Tribunal says, at page 218 – I read from the
judgment :
“The Charter is not an arbitrary exercise of power on
the part of the victorious Nations, but in the view of
the Tribunal, as will be shown, it is the expression of
international law existing at the time of its creation;
and to that extent is itself a contribution to
international law. 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 any one of
them might have done singly; for it is not to be
doubted that any nation has the right thus to set up
special courts to administer law.”
In plain language the Court is saying: It is not our purpose
to renew or add anything. Our purpose is to establish in
words and sentences what should have been so clear that it
should not have been necessary at all to define those words
or phrases. But after the occurrence of these events in
Europe, the human race apparently needed such a formulation,
and determined this by means of codification. And in one of
the judgments of the American Military Tribunals set up in
Germany, one of the “Subsequent Trials” known as the “Trial
of the Jurists,” the Court which sat was composed of Judge
Marshall – the senior justice in the State of Ohio – Judge
Brand, of the Supreme Court of the State of Oregon, and
Judge Blair of the Court of Appeals of the State of Texas.
This is to be found in the `Trials of War Criminals,’ Volume
3 of the Green Series. This was also Case No. 3, although
the number of the volume and the case no. were not always
identical. This is the case called the `Justice Case.’ The
judges quote with approval the statement of Lord Wright and
make the following remarks on page 967:
“But international law is progressive. The period of
growth generally coincides with the period of world
upheavals. The pressure of necessity stimulates the
impact of natural law and of moral ideas and converts
them into rules of law deliberately and overtly
recognized by the consensus of civilized mankind. The
experience of two great world wars within a quarter of
a century cannot fail to have deep repercussions on the
senses of the peoples and their demand for an
international law which reflects international justice.
I am convinced that international law has progressed,
as it is bound to progress if it is to be a living and
operative force in these days of widening sense of
humanity.
For the reasons stated by Lord Wright, this growth by
accretion has been greatly accelerated since the First World
War. The IMT Charter, the IMT judgment, and C.C. Law 10 are
merely `great new cases in the book of international law.’
They constitute authoritative recognition of principles of
individual penal responsibility in international affairs
which, as we shall show, had been developing for many
years.”
And on page 970:
“As to the punishment of persons guilty of violating
the laws and customs of war (war crimes in the narrow
sense), it has always been recognized that tribunals
may be established and punishment imposed by the state
into whose hands the perpetrators fall. These rules of
international law were recognized as paramount, and
jurisdiction to enforce them by the injured belligerent
government, whether within the territorial boundaries
of the state or in occupied territory has been
unquestioned. (Ex parte Quirin, supra; in re Yamashita,
327 U.S.1,9O L. ed.)”
Presiding Judge: Which judgments are these?
Attorney General: These are American decisions of the
United States Supreme Court. I shall reach them in the
course of my argument.
“…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
the 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.”
And on page 982, the Court states – I read from the
judgment:
“Finally, we quote the words of Sir Hartley Shawcross,
the British Chief Prosecutor at the trial of Goering,
et al.: “The rights 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 [recognized] law of
nations. Here, too, the Charter merely develops a pre-
existing principle.”
We shall return to this judgment in the course of my
argument.
Presiding Judge: Will you be arriving at some point where
we may stop?
Attorney General: I can stop now, if you like.
Presiding Judge: Will you be ready to reply tomorrow to the
material which has been submitted in writing by Dr.
Servatius?
Attorney General: I shall do my very best, Your Honour.
I shall endeavour to study the material to the extent that
it is possible, together with my colleagues, and I shall try
to reply tomorrow. If I do not succeed, I shall ask for the
Court’s indulgence.
Presiding Judge: The Court does not wish to impose an
excessively heavy burden upon you. There is substantial
material there.
Attorney General: I have agreed to a method which is
exceptional in our procedure. We do not have written
arguments in criminal matters, but I did not want to create
difficulties for the Defence. For this reason I did not
object when the Court approached me on this matter. But, at
the same time, I simply have to study the arguments. Dr.
Servatius wrote these submissions in one hundred pages. It
would certainly have taken half a day to have read them out.
Presiding Judge: Another matter: This applies, in fact, to
both sides. We already notice in the written arguments of
Dr. Servatius that there is reference to authorities which
are not in our possession – books and legal references.
Obviously this also applies to the Attorney General. We
would ask you to hand in to the Clerk of the Court those
books and authorities which have been mentioned here, for
our perusal.
Attorney General: I shall do so.
Presiding Judge: What is your position, Dr. Servatius, in
this matter?
Dr. Servatius: I shall try to get hold of them. Partly they
are to be found in libraries, where it will probably be
possible to borrow them.
Presiding Judge: In Israel or abroad?
Dr. Servatius: In Germany. I shall see whether I can
procure them.
Presiding Judge: That would not be so convenient. Perhaps
you may be assisted by local libraries?
Dr. Servatius I shall try to ascertain whether these books
are available in libraries here.
Presiding Judge: A final matter Mr. Hausner: What about the
accused’s detention? Do you have a committal order which is
valid at the present time?
Attorney General: Yes, Your Honour.
Presiding Judge: Until when is it valid?
Attorney General: The truth of the matter is that I have to
check this. I shall advise you tomorrow morning. I believe
that we are still covered. If it should be necessary to
prolong it, I shall ask for an extension according to the
law.
Presiding Judge: I would ask you, please, to clarify this.
Attorney General: I shall not overlook it.
Presiding Judge: We shall adjourn until tomorrow morning,
at nine o’clock.
Last-Modified: 1999/05/28
