"The Einsatzgruppen Case"


Case No. 9

Jurisdiction of the Court

MR.. FERENCZ: International agreements adopted by twenty-three nations and Control Council Law No. 10, a quadripartite enactment made pursuant to these agreements, authorize the crea-

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tion of this Court. These Military Tribunals, established by the United States as agencies to administer Law No. 10, are in essence and in fact International Courts.

The murders in this case were committed in particular cities and towns, but the rights the defendants violated belong to all men everywhere. These rights may be vindicated by any nation, alone or in concert with others. The nationality of the victim and the time and place of crime do not impugn this jurisdiction. We find this law both in opinions of the Permanent Court of International Justice and the practice of states in military offenses.(1) The Permanent Court has held that states have legal power to determine any criminal matter as long as such legal action is not prohibited by international law. (2) Where conduct menaces the universal social order, there can be and has been no prohibition on the right of courts to act. No law has ever prohibited the trial by any court of crimes such as we shall here disclose.

Piracy and brigandage were the forerunners of modern international crimes. International jurisprudence soon gave states the right to punish these violators regardless of the victim's nationality or the location of the crime. This applied in time of war or peace. It has long been accepted that a belligerent may punish members of enemy forces in its custody who have violated the laws and customs of war. (3) The jurisdiction exercised by military courts trying offenses against the laws of war has never been territorial. Sir Hartley Shaweross, the British prosecutor at the International Trial, pointed out that -

"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, have long been considered to form part of the law of nations". (4)

German law professors too declared this in their writings. (5) The jurisdictional power of every state extends to the punishment of offenses against the law of nations "by whomsoever and wheresoever committed." (6)

It is, therefore, wholly fitting for this Court to hear these charges of international crimes and to adjudge them in the name of civilization.

(1) Cowles, Universality of Jurisdiction of War Crimes, California Law Revue June 1945.

(2) SS Letus (France vs. Turkey) Judgment No. 9, Series A, No. 10, cited in Cowles, op. cit. pp. 178-180.

(3) Ibid., p. 206.

(4) Trial of the Major War Criminals, vol. III, p. 42, Nuremberg, 1947.

(5) Bluntacht, "Des Moderne Voelkerrecht der Zivilisierteni Staaten".

(6) Wheaton, cited in Cowles, op. cit. supra, p. 191

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Trials of War Criminals Before the Nurenberg Military Tribunals Under Control Council Law No. 10, Volume IV, Washington, D.C.: U.S. Government Printing Office. pp. 46 - 47

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Electric Zen
Ken Lewis
September 27, 1998
Rev. 1.0