nuremberg military tribunal




The Law


On August 27, 1928 Germany signed and later ratified the general treaty for the Renunciation of War, more generally known as the Kellogg-Briand Pact, wherein sixty-eight nations agreed:

"Article I. The High Contracting Parties solemnly declare in the name of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations to one another.

Article II. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts or whatever nature or whatever origin they may be, which may arise among them, shall never be sought, except by pacific means."

In spite of this unequivocal universal condemnation of war, the fifth decade of the twentieth century witnessed a conflict at arms of global proportions which wrought such devastation on land and sea and so convulsed organized society that, for many decades yet to come, men, women and children in every land will feel and suffer its consequences.

On August 8, 1945, representatives of Great Briton, France, Russia and the United States met in London and entered into an agreement for the trial of war criminals ascertained to be such. Nineteen other nations expressed their adherence to this agreement.

On September 30, 1946, the International Military Tribunal, created by the London Agreement, after a trial which lasted ten months, rendered a decision which proclaimed that Germany had precipitated World War II and, by violating international commitments and obligations, had waged aggressive war. The International Military Tribunal, in addition to rendering judgment against specific individuals, declared certain organizations, which were outstanding instruments of Nazism, to be criminal.

On December 20, 1945, the Allied Control Council, composed of representatives of the same four above-mentioned nations and

- 56 -

constituting the highest legislative authority for Germany, enacted Law No. 10, concerning "Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity". This Tribunal came into being under the provisions of that Law, but while the Tribunal derives its existence from the authority indicated, its jurisdiction over the subject matter results from International Law valid long prior to World War II.

Defense Counsel have advanced various arguments on the law applicable to this case. In view of their representations and the gravity of the case itself, the various phases of the law will be discussed with more detail than perhaps ordinarily the situation might require.

Under International Law the defendants are entitled to a fair and impartial trial, which the Tribunal has endeavored throughout the long proceedings to guarantee to them in every way. The precept that every man is presumed innocent until proven guilty has held and holds true as to each and every defendant. The other equally sanctified rule that the Prosecution has the burden of proof and must prove the guilt beyond a reasonable doubt has been, and is, assured.

This trial opened on September 15, 1947, and the taking of evidence began on September 29. The Prosecution required but two days to present its case in chief because its evidence was entirely documentary. It introduced in all 253 documents. 136 days transpired in the presentation of evidence in behalf of the defendants, and they introduced, in addition to oral testimony, 731 documents. The trial itself was conducted in both English and German and was recorded stenographically in both languages. The transcript of the oral testimony consists of more than 6,500 pages. An electric recording of all proceedings was also made. Copies of documents introduced by the Prosecution in evidence was served on the defendants in the German language.

The Judgment in this case will treat the several defendants separately in the latter part of the Opinion, but since many of the

- 57 -

items of defense, especially in argumentation, are common to more than one of the defendants they will be discussed collectively to avoid repetition during the individual treatments. It is to be emphasized that the general discussion and collective description of acts or defenses of defendants need not apply to each and every defendant in the box. Any general reference will necessarily apply to a majority of them but that majority need not always consist of the same persons. As already stated, the individual treatments will appear at the end.

The arguments put forth by the defense may be grouped under four different headings and will be discussed in that order by the Tribunal: Jurisdiction, Self Defense and Necessity, Superior Orders and Non-Involvement.

The substantive provisions of Control Council Law No. 10 which are pertinent in this case, read as follows:

Art. II, 1.

(b) War Crimes. Atrocities or offenses against persons or property constituting violations of laws or customs of war, including but not limited to, murder, ill-treatment or deportation to slave labor 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 offenses, 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.


Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1

- 58 -

of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country."

Control Council Law No. 10 was attacked by Defense Counsel at the beginning of the trial, at the end of the trial, and even after all evidence and documentation had been received and arguments closed. In a motion filed February 20, 1948, counsel renewed their representations that this law was inapplicable to the instant case because of the fact that Russia, on August 23, 1939, signed a secret treaty with Germany agreeing to a division of Poland. In the argument supporting their motion, Counsel do not dwell on the fact that in signing the agreement with Russia, Germany naturally became a party to the very transaction involved. However, in spite of this very definite occurrence by Germany in Russia's acts, insofar as they arose out of the so-called secret agreement, Defense Counsel submitted that Russia disqualified herself from membership in the Allied Control Council and that, therefore, any agreement reached with her as on of the signatory powers must necessarily be void. The argument is wholly lacking in merit.

The matter of responsibility for breach of the International Peace was fully considered and decided by the International Military Tribunal in its decision of September 30, 1946:

"The Tribunal is fully satisfied by the evidence that the war initiated by Germany against Poland on the 1st September 1939 was most plainly an aggressive war, which was to develop in due course into a war which embraced almost the whole world, and resulted in the commission of countless crimes, both against the laws and customs of war, and against humanity."

- 59 -

It was this monstrously selfish and evil aggression which precipitated, as the International Military Tribunal pointed out, a global war whose effects are visible today throughout the world. The legal consequences drawn from the International Military Tribunal adjudication, which is now res judicata, may not be altered by the assertion that someone else may also have been at fault.

At the final arguments in the case various Defense Counsel spoke of international events which followed the ending of the war. It is intended as no offense to Defense Counsel to say that it would seem they are seeking to fish in troubled waters, or what they assume to be an agitated sea. Nonetheless, the Tribunal must refuse representations and arguments upon that subject. The defendants in this case stand accused of crimes which occurred during the war. History's footsteps since the termination of World War II can not obliterate the blood marks of that colossal and tragic conflict.

While the Tribunal placed no limitations on the scope of Defense Counsel's representations, as in justice it should not, it does not follow that everything presented was relevant to the issue in the case. It is only by hearing an argument that one can conclusively determine its materiality or lack of materiality. However, the Tribunal now decides, after hearing and analyzing all the evidence, that discussions in this case on the ante-war relationship between Germany and Russia are immaterial. It further decides that representations on the post-war relationship between Russia and the rest of the world are equally irrelevant.

Although advancing the proposition that Russia signed a secret treaty with Germany prior to the Polish war, the Defense said or presented nothing in the way of evidence to overcome the well considered conclusion of the International Military Tribunal that Germany started an aggressive war against Russia. On the basis of this finding alone, Russia's participation in the Allied Council which formulated Law No. 10 was legal and correct and in entire accordance with International Law.

- 60 -

Furthermore, Defense Counsel's representations to this respect have no bearing on the charges in the Indictment. They are not defending Germany as a nation in this trial. They are representing individuals accused of specific crimes under Law No. 10, which, like the Charter of the International Military Tribunal, was not an arbitrary exercise of power of the victorious nations but the expression of International Law existing at the time of its creation. Control Council Law No. 10 is but the codification and systemization of already existing legal principles, rules and customs. Under the title of Crimes against Humanity, these rules and customs are the common heritage of civilized peoples, and, in so far as War Crimes are concerned, they have been recognized in various International Law for decades if not centuries. As far back as 1631 Grotius, in his De Jure Belle ac Pacis wrote:

"But.....far must we be from admitting the conceit of some, that the Obligation of all Right ceases in war; nor when undertaken ought it to be carried on beyond the Bounds of Justice and Fidelity."

The German author Schaetzel, in his book "Bestrafungen nach Kriegsgebrauch, published in 1920, stated:

".....The Laws and Customs of Warfare are law not because they are reproduced in the Field Manual but because they are International Law. The Imperial Decree (of 1899) speaks of punishment 'in accordance with the laws, the customs of war and special decrees of competent military authorities' (Art. 2). This shows clearly that the customs of war are recognized as a source of law. They are binding on individuals by virtue of the Imperial Decree which orders the authorities administering justice to follow these rules.

The customs of war are substantive penal law as good as the State's penal legislation."

Defense Counsel have particularly thrust at Control Council Law No. 10 with Latin maxim nullem crimen sine lege, nulla peona sine lege. It is indeed fundamental in every system of civilized jurisprudence that no one may be punished for an act which was not prohibited at the time of its commission. But it must be

- 61 -

understood that the "lex" referred to is not restricted to statutory law. Law does, in fact, come into being as the result of formal written enactment and thus we have codes, treaties, conventions, and the like, but it may also develop effectively through customs and usage and through the application of Common Law. The latter methods are no less binding than the former. The International Military Tribunal, in its decision of September 30, 1946, declared:

"International Law is not the product of an international legislature.....This law is not static, but by continual adaptation follows the needs of a changing world."

Of course some fields of International Law have been codified to a substantial degree and one such subject is the Law of Land Warfare which includes the Law of Belligerent Occupation because belligerent occupation is incidental to warfare. The Hague Regulations, for instance, represent such a codification. Article 46 of those Regulations provides with regard to invading and occupying armies that:

"Family honor and rights, the lives of persons and private property, as well as religious convictions and practice must be respected."

This provision imposed obligations on Germany not only because Germany signed the Hague Convention on Land Warfare, but because it had become International Law binding on all nations.

But the jurisdiction of this Tribunal over the subject matter before it does not depend alone on this specific pronouncement of International Law. As already indicated, all nations have held themselves bound to the rules or laws of war which came into being through common recognition and acknowledgement. Without exception these rules universally condemn the wanton killing of non-combatants. In the main, the defendants in this case are charged with murder. Certainly no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder.

Whether any individual defendant is guilty of unlawful killing is a question which will be determined later, but it cannot be

- 62 -

said that prior to Control Council Law No. 10 there existed no law against murder. The killing of a human being has always been a potential crime which called for explanation. The person standing with drawn dagger over a fresh corpse must, by the very nature of justice, exonerate himself. This he may well do, advancing self defense or legal authorization for the deed, or he may establish that the perpetrator of the homicide was one other than himself.

It is not questioned that the defendants were close enough to mass killings to be called upon for explanation -- and to whom are they to render explanation so that their innocence or guilt may be determined? Is the matter of some one million non-military deaths to be denied judicial inquiry because a Tribunal was not standing by, waiting for the apprehension of the suspects?

The specific enactments for the trial of war criminals which have governed the Nuremberg trials, have only provided a machinery for the actual application of international law theretofore existing. In the comparatively recent Saboteurs Case (Ex parte Quirin 317 U.S., 1, 1942) the Supreme Court of the United States affirmed that individual offenders against the rules and customs of war are amenable to punishment under the common law of nations without any prior designation of tribunal or procedure. In this connection reference may also be made to trials for piracy where, going back centuries, the offenders, regardless of nationality, were always tried in the arresting state without ant previous designation of tribunal.

Military Tribunals for years have tried and punished violators of the rules of land warfare outlined in the Hague Convention, even though the Convention is silent on the subject of courts. The International Military Tribunal speaking to this subject said:

"The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts."

All civilized nations have at times used military courts. Who questions that Prussia during the Franco-Prussian war and

- 63 -
Germany during World War I and World War II utilized military courts to try subjects of other nations charged with violating the rules and laws of war?

There is no authority which denies any belligerent nation jurisdiction over individuals in its actual custody charged with violation of international law. And if a single nation may legally take jurisdiction in such instances, with what more reason may a number of nations agree, in the interest of justice, to try alleged violations of the international code of law?

In spite of all that has been said in this and other cases, no one would be so bold as to suggest that what occurred between Germany and Russia from June 1941 to May 1945 was anything but war and, being war, that Russia would not have the right to try the alleged violators of the rules of war on her territory and against her people. And if Russia may do this alone, certainly she may concur with other nations who affirm that right.

Thus, Russia's participation in the formulation of Control Council Law No. 10 is in accordance with every recognized principle of international law, and any attack on that participation is without legal support. The Tribunal also finds and concludes that Control Law No. 10 is not only in conformity with International Law but is in itself a highly significant contribution to written International Law


- 64 -

Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 56 - 64 (original mimeographed copy)

Search: Enter keywords... logo

In Association with

[Home] [ Index]

Ken Lewis
March 22, 1998
Rev. 1.1