a. Introduction
Under count III of the indictment, “Crimes against Humanity”, the prosecution alleged that the defendants had engaged in medical experiments “upon German civilians and nationals of other countries” and that the defendants had participated in executing “the so-called ‘euthanasia program’ of the German Reich, in the course of which the defendants herein murdered hundreds of thousands of human beings, including German civilians, as well as civilians of other nations”. [Emphasis added.] Insofar as these offenses involved German nationals, the defense argued that international law was not applicable. The defense argued that under, the Charter annexed to the London Agreement, crimes against humanity within the meaning of the Charter do not exist unless offenses are committed “in the execution of, or in connection with, any crime within the jurisdiction of the Tribunal”. Although the analogous provision of Control Council Law No. 10 does not include the words of limitation “in the execution of, or in connection with any crime within the jurisdiction of the Tribunal”, the defense argued that Control Council Law No. 10 was only “an implementation law” of the London Agreement and Charter, and hence could not increase the scope of the offenses defined by the London Charter. Pointing to the section of the judgment of the International Military Tribunal entitled “The law relating to war crimes and crimes against humanity”,[[119]] the defense noted that the IMT stated: “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”,[[120]] that is, crimes against peace or war crimes. Although the indictment in the Medical Case did not allege that crimes were committed against German nationals before the outbreak of the war on 1 September 1939, the defense further argued that any offenses against German nationals committed after 1939 had not been shown to be “in execution of, or in connection with” crimes against peace and war crimes and hence were not cognizable as crimes within the jurisdiction of the Tribunal.
Extracts from the closing statement of the prosecution appear below on pages 910 to 915. A summation of the evidence on this question by the defense has been taken from the closing brief for defendant Karl Brandt. It appears below on pages 915 to 925.
b. Selection from the Argumentation of the Prosecution
EXTRACTS FROM THE CLOSING STATEMENT OF THE PROSECUTION[[121]]
The Law of the Case
Before proceeding to outline the prosecution’s case, it may perhaps be desirable to anticipate several legal questions which will undoubtedly be raised with respect to war crimes and crimes against humanity, as defined in Article II of Control Council Law No. 10. Law No. 10 is, of course, the law of this case and its terms are conclusive upon every party to this proceeding. This Tribunal is, we respectfully submit, bound by the definitions in Law No. 10, just as the International Military Tribunal was bound by the definitions in the London Charter. It was stated in the IMT judgment that:[[122]]
“The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive and binding upon the Tribunal * * *.”
In outlining briefly the prosecution’s conception of some of the legal principles underlying war crimes and crimes against humanity, I shall, with the Tribunal’s permission, adopt some of the language from the opening statement of the prosecution in the case against Friedrich Flick, et al., now pending before Tribunal IV. [See Vol. VI.] General Taylor there said—
“Law No. 10 is * * * a legislative enactment by the Control Council and is therefore part of the law of and within Germany. One of the infirmities of dictatorship is that, when it suffers irretrievable and final military disaster, it usually crumbles into nothing and leaves the victims of its tyranny leaderless amidst political chaos. The Third Reich had ruthlessly hunted down every man and woman in Germany who sought to express political ideas or develop political leadership outside of the bestial ideology of nazism. When the Third Reich collapsed, Germany tumbled into a political vacuum. The declaration by the Allied Powers of 5 June 1945 announced the ‘assumption of supreme authority’ in Germany ‘for the maintenance of order’ and ‘for the administration of the country’, and recited that—
‘There is no central government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country, and compliance with the requirements of the victorious powers.’
“Following this declaration, the Control Council was constituted as the repository of centralized authority in Germany. Law No. 10 is an enactment of that body and is the law of Germany, although its substantive provisions derive from and embody the law of nations. The Nuernberg Military Tribunals are established under the authority of Law No. 10,[[123]] and they render judgment not only under international law as declared in Law No. 10, but under the law of Germany as enacted in Law No. 10. The Tribunals, in short, enforce both international law and German law, and in interpreting and applying Law No. 10, they must view Law No. 10 not only as a declaration of international law, but as an enactment of the occupying powers for the governance of and administration of justice in Germany. The enactment of Law No. 10 was an exercise of legislative power by the four countries to which the Third Reich surrendered, and, as was held by the International Military Tribunal:[[124]]
‘* * * the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world.’ ”
War crimes are defined in Law No. 10 as atrocities or offenses in violation of the laws or customs of war. This definition is based primarily upon the Hague Convention of 1907 and the Geneva Convention of 1929, which declare the law of nations at those times with respect to land warfare, the treatment of prisoners of war, the rights and duties of a belligerent power when occupying territory of a hostile state, and other matters. The laws and customs of war apply between belligerents, but not domestically or among allies. Crimes by German nationals against other German nationals are not war crimes, nor are acts by German nationals against Hungarians or Romanians. The war crimes charged in this indictment all occurred after 1 September 1939, and it is therefore unnecessary to consider the somewhat narrow limitation of the scope of war crimes by the International Military Tribunal to acts committed after the outbreak of war. One might argue that the occupations of Austria and the Sudetenland in 1938, and of Bohemia and Moravia in March 1939, were sufficiently similar to a state of belligerency to bring the laws of war into effect, but such questions are academic for purposes of this case.
In connection with the charge of crimes against humanity, it is also anticipated that an argument will be made by the defense to the effect that crimes committed by German nationals against other German nationals cannot constitute crimes against humanity as defined by Article II of Control Council Law No. 10 and hence are not within the jurisdiction of this Tribunal. The evidence of the prosecution has proved that in substantially all of the experiments prisoners of war or civilians from German-occupied territories were used as subjects. This proof stands uncontradicted save by general statements of the defendants that they were told by Himmler or some unidentified person that the experimental subjects were all German criminals or that the subjects all spoke fluent German. Thus, for the most part, the acts here in issue constitute war crimes and hence, at the same time, crimes against humanity. Certainly there has been no proof whatever that an order was ever issued restricting the experimental subjects to German criminals as distinguished from non-German nationals. If, in this or that minor instance, the proof has not disclosed the precise nationality of the unfortunate victims or has even shown them to be Germans, we may rest assured that it was merely a chance occurrence.
Be that as it may, the prosecution does not wish to ignore a challenge to the jurisdiction of the Tribunal even though it is of minor importance to this case. One thing should be made clear at the outset: We are not here concerned with any question as to jurisdiction over crimes committed before 1 September 1939, whether against German nationals or otherwise. That subject has been mooted and is in issue in another case now on trial, but the crimes in this case all occurred after the war began.
Moreover, we are not concerned with the question whether crimes against humanity must have been committed “in execution of or in connection with any crimes within the jurisdiction of the Tribunal.” The International Military Tribunal construed its Charter as requiring that crimes against humanity be committed in execution of, or in connection with, the crime of aggressive war. Whatever the merit of that holding, the language of the Charter of the International Military Tribunal which led to it is not included in the definition of crimes against humanity in Control Council Law No. 10. There can be no doubt that crimes against humanity as defined in Law No. 10 stand on an independent footing and constitute crimes per se. In any event, the crimes with which this case is concerned were in fact all “committed in execution of, or in connection with, the aggressive war.” This is true not only of the medical experiments, but also of the Euthanasia Program, pursuant to which a large number of non-German nationals were killed. The judgment of the International Military Tribunal expressly so holds.[[125]]
Thus, it is clear that the only issue which is raised in this case as to crimes against humanity is whether the Tribunal has jurisdiction over crimes committed by Germans against Germans. Does the definition of crimes against humanity in Control Council Law No. 10 comprehend crimes by Germans against Germans of the type with which this case is concerned? The provisions of Law No. 10 are binding upon the Tribunal as the law to be applied to the case.[[126]] The provisions of Section 1(c) of Article II are clear and unambiguous. Crimes against humanity are there defined as—
“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.” [Emphasis supplied.]
The words “any civilian population” cannot possibly be construed to exclude German civilians. If Germans are deemed to be excluded, there is little or nothing left to give purpose to the concept of crimes against humanity. War crimes include all acts listed in the definition of crimes against humanity when committed against prisoners of war and the civilian population of occupied territory. The only remaining significant groups are Germans and nationals of the satellite countries, such as Hungary or Romania. It is one of the very purposes of the concept of crimes against humanity, not only as set forth in Law No. 10 but also as long recognized by international law, to reach the systematic commission of atrocities and offenses by a state against its own people. The concluding phrase of the definition of crimes against humanity, which is in the alternative, makes it quite clear that crimes by Germans against Germans are within the jurisdiction of this Tribunal. It reads “or persecutions on political, racial, or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.” This reference to “domestic laws” can only mean discriminatory and oppressive legislation directed against a state’s own people, as for example, the Nuernberg Laws against German Jews. [Emphasis supplied.]
The matter is put quite beyond doubt by Article III of Law No. 10 which authorizes each of the occupying powers to arrest persons suspected of having committed crimes defined in Law No. 10, and to bring them to trial “before an appropriate tribunal.” Paragraph 1(d) of Article III further provides that—
“Such Tribunal may, in the case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German court, if authorized by the occupying authorities.”
This constitutes an explicit recognition that acts committed by Germans against other Germans are punishable as crimes under Law No. 10 according to the definitions contained therein in the discretion of the occupying power. This has particular reference to crimes against humanity, since the application of crimes against peace and war crimes, while possible, is almost entirely theoretical. If the occupying power fails to authorize German courts to try crimes committed by Germans against other Germans (and in the American zone of occupation no such authorization has been given), then these cases are tried only before non-German tribunals, such as these Military Tribunals.
What would be the effect of a holding that crimes by Germans against Germans can under no circumstances be within the jurisdiction of the Tribunal? Is this Tribunal to ignore the proof that tens of thousands of Germans were exterminated pursuant to a secret decree, because a group of criminals in control of a police state thought them “useless eaters” and an unnecessary burden, or that German prisoners were murdered and mistreated by thousands in concentration camps, in part by medical experimentation? Military Tribunal II in the Milch case held that crimes against nationals of Hungary and Romania were crimes against humanity. There is certainly no reason in saying that there is jurisdiction over crimes by Germans against Hungarians but not against Germans.
The judgment of the International Military Tribunal shows a clear recognition of its jurisdiction over crimes by Germans against Germans. After reviewing a large number of inhumane acts in connection with war crimes and crimes against humanity, the Tribunal concluded by saying that—
“* * * from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with the aggressive war, and therefore constituted crimes against humanity.”[[127]]
Since war crimes are necessarily also crimes against humanity, the broader definition of the latter can only refer to crimes not covered by the former, namely, crimes against Germans and nationals of countries other than those occupied by Germany. Moreover, the prosecution in that case maintained that the inhumane treatment of Jews and political opponents in Germany before the war constituted crimes against humanity. The Tribunal said in this connection—
“With regard to crimes against humanity there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression, and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt.”[[128]]
The Tribunal was there speaking exclusively of crimes by Germans against Germans. It held that such acts were not crimes against humanity, as defined by the Charter, not because they were crimes against Germans, but because they were not committed in execution of, or in connection with, aggressive war. Indeed, the Tribunal went on to hold that the very same acts committed after the war began were crimes against humanity. No distinction was drawn between the murder of German Jews and Polish or Russian Jews. And, moreover, no distinction was drawn between criminal medical experimentation on German and non-German concentration camp inmates or the murder of German and non-German civilians under the Euthanasia Program. The Tribunal held them all to be war crimes and/or crimes against humanity.
c. Selection from the Argumentation of the Defense
EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT
KARL BRANDT
The Punishable Crime Against Humanity
The criminality of the crime against humanity is based on Law No. 10 of the Control Council for Germany. Article II of this law states—
“1. Each of the following acts is recognized as a crime:
c. Crime against humanity * * *.”
The concept of the crime against humanity has not been established and it is questionable whether crimes against humanity according to Law No. 10 also refer to such acts as have been committed on German nationals by German nationals. The decision of this question is of particular significance since the medical experiments with which the defendants are charged and the mercy killings executed were, in the first place, carried out on German nationals.
The question here is not to establish whether such acts are against humanity but whether they are crimes against humanity punishable according to Law No. 10 which were committed knowingly and willfully. If measures taken against German nationals do not come under the law, the evidence of the prosecution to be examined is restricted mainly to those cases in which certain foreigners were affected, and in addition, evidence must be produced proving that the defendant was aware of the fact that foreigners too had actually been involved by these measures.
It is to be understood from Law No. 10 that it is merely an implementation law to the London Agreement of 8 August 1945 and the statute belonging to it. This has been expressly stressed in the introduction, and beyond that the London Statute and the Moscow Declaration of 30 October 1943 have been declared inseparable components of the law according to Article I.
The legally pre-eminent London Statute therefore is decisive for the interpretation of the substantive law. Article 6(c) of this statute provides that crimes against humanity can be considered punishable only if they were committed “in execution of or in connection with any crime within the jurisdiction of the Tribunal * * *”. This jurisdiction, however, extends only to crimes against peace and to war crimes. The punishable crime against humanity, therefore, is restricted to the latter. The prosecution, however, has only recently championed a different opinion. In Case 5 before Tribunal IV, the case against Flick and others,[[129]] the prosecution declared in its opening statement on 19 April 1947 that the clause: “in connection with a crime within the jurisdiction of the tribunal” has a different meaning from what it expresses. The clause is to signify that the Tribunal is not to deal with individual crimes but only with such crimes as have been committed on a large scale and are therefore within the jurisdiction of the trial.
This meaning of the clause was not apparent to the International Military Tribunal, the prosecutors of the signatory powers at that time, nor to those who later commented on the verdict, and I do not believe that one can agree with the newly established interpretation of the prosecution. The decision of the International Military Tribunal is authoritative for the interpretation since it was pronounced by the judges of the signatory powers who were expressly appointed for application of the new law. The high authority of the International Military Tribunal is emphasized by Ordinance 7, Article X, according to which its actual findings are binding for the later courts.
This International Military Tribunal, however, has ruled that the punishable crime against humanity is a dependent, subsidiary crime and that it can only be considered a crime if it has been committed in connection with a war crime or a crime against peace. The verdict of the International Military Tribunal[[130]] in rejecting the criminality of crimes against humanity committed prior to the war states the following:
“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 prosecution before the International Military Tribunal has on its part endeavored to prove such a connection; this would not have been necessary if it had not considered this connection a part of the specification of the crime against humanity. Professor Donnedieu de Vabres, the French judge of the International Military Tribunal, expressed his attitude to this limitation of the punishable crime against humanity after the pronouncement of the verdict in a lecture quoted by the prosecution in the Flick case;[[131]] his opinion can be considered important. The French judge deplores the limitation of the crime against humanity, but he confirms it. This limitation is no figment of the imagination but the necessary result of the prevailing international law; it has its origin in the concept of sovereignty.
It is the purport of the Moscow Declaration and the London Statute, both of which have been incorporated into Law No. 10, to deal only with the crimes that affect the relations between nations. These relations are to be safeguarded and for that reason crimes are to be punished which are significant according to international law and which are connected with war crimes and crimes against peace. The “international” crimes are to be punished.
This significance of the international crime to be understood from the point of view of international law is especially clearly expounded in a book written by Professor Trainin who was the official advisor on judicial matters for the Soviet Union in the proceedings in Case I, the International Military Tribunal. This is a book entitled “The Criminal Responsibility of the Hitlerites” published by the Law Institute, Academy of Science in the Soviet Union, through [edited by] the academician Vishinsky. The book was written at the time the statute originated. According to this, it is not the meaning and purpose of “international criminal law” to impose punishment for crimes which have no effect beyond the borders of their own country and which do not involve the sphere of international law.
The fact that no thought was given to punishment of crimes committed within the borders of Germany is evident from the Moscow Declaration of 30 October 1943. In this declaration crimes are mentioned exclusively which have been committed in other countries to which the accused are to be returned.
If there could still be doubts with regard to the interpretation of the subsidiary nature of the crime against humanity, these doubts are eliminated by the Berlin Addendum Minutes [Zusatzprotokoll] added to the statute, dated 6 October 1945. In these minutes the subsidiary nature of the crime against humanity is elucidated by means of a correction, the apparent insignificance of which is the very thing that serves to emphasize its importance. According to this, the four Allied Main Powers, as the signatories of the statute, meet again only for the purpose of transforming a semicolon into a comma and it appears in the minutes that this was done because the meaning and intentions of the agreements and the statute require it.
Article 6 (c) of the statute was originally worded as follows and even at present is reproduced in many copies in the same form as far as punctuation is concerned:
“(c) 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.”
The wording of the Berlin Addendum Minutes [Protocol] dated 6 October 1945 in this context reads as follows:[[132]]
“Whereas an Agreement and Charter regarding the Prosecution of War Criminals was signed in London on the 8th August 1945, in the English, French, and Russian languages,
“And whereas a discrepancy has been found to exist between the originals of Article 6, paragraph (c), of the Charter in the Russian language, on the one hand, and the originals in the English and French languages, on the other, to wit, the semicolon in Article 6, paragraph (c), of the Charter between the words ‘war’ and ‘or’, as carried in the English and French texts, is a comma in the Russian text,
“And whereas it is desired to rectify this discrepancy:
“NOW, THEREFORE, the undersigned, signatories of the said Agreement on behalf of their respective Governments, duly authorized thereto, have agreed that Article 6, paragraph (c), of the Charter in the Russian text is correct, and that the meaning and intention of the Agreement and Charter require that the said semi-colon in the English text should be changed to a comma, and that the French text should be amended to read as follows:
“(c) LES CRIMES CONTRE L’HUMANITE: c’est à dire l’assassinat, l’extermination, la réduction en esclavage, la déportation, et tout autre acte inhumain commis contre toutes populations civiles, avant on pendant la guerre, ou bien les persécutions pour des motifs politiques, raciaux, ou réligieux, lorsque ces actes ou persécutions, qu’ils aient constitué ou non une violation du droit interne du pays où ils ont été perpétrés ont été commis à la suite de tout crime rentrant dans la compétence du Tribunal, ou en liaison avec ce crime.
“In witness whereof the Undersigned have signed the present Protocol.
“Done in quadruplicate in Berlin this 6th day of October 1945, each in English, French, and Russian, and each text to have equal authenticity.
For the Government of the United States of America:
[Signature] Robert H. Jackson
For the Provisional Government of the French Republic:
[Signature] François de Menthon
For the Government of the United Kingdom of
Great Britain and Northern Ireland:
[Signature] Hartley Shawcross
For the Government of the Union of Soviet Socialist Republics:
[Signature] R. Rudenko”
Obviously it was no printing error which simply would have been corrected. This is rather a carefully thought out limitation on the part of the Signatory Powers which was clarified unmistakably. Without this limitation, a precedent of decisive significance would have been created for international law for the possibility would have existed to prosecute at any time alleged crimes against humanity in a different country. According to this, the socialist states would have assailed the social conditions in capitalistic countries as crimes against humanity, and vice versa the capitalistic states could have replied to the measures of the socialist countries with an intervention as experienced by the young Bolshevist Revolution in 1919. Precisely that however was to be prevented by not recognizing an independent crime against humanity for the protection of sovereign states. Professor Donnedieu de Vabres has particularly mentioned this point of view in his lecture as a decisive point of view of the International Military Tribunal.
The same restrictive view of this question is taken in the latest International Law of the United Nations Organization (UNO), Chapter I, Article 2, paragraph 7 of the resolution of San Francisco, concerning the establishment of UNO, dated 26 June 1945, reads that an interference in matters which are within the jurisdiction of the country is inadmissible. Accordingly it is a fixed principle of international law even today that proceedings within a state cannot entail sanction; spoken in the words of the statute, there are no independent crimes against humanity, which might be punished as international crimes.
The opinion of Hugo Grotius and his numerous adherents is rejected and is no longer valid as international law today. Interventions from points of view of humanity are declined, as their motive seems suspicious to the states.[[133]]
Decisive alone is the practice of the members of the body of the nations who have agreed on international law (Voelkerrechtsgemeinschaft) and the existing agreements on international law.
These legal realities must be contrasted with the extravagant opinion, which believes that the protection of humanity can only be safeguarded by a kind of international sovereignty limited by the sovereignty of the individual states. This would be an aim which we would most sincerely desire to attain, but practice shows that there are plenty of crimes against humanity even today, but no institution which has the power to punish them. There will never be such an institution, except insofar as it concerns the totally vanquished after a total war, to which in the future every war must lead.
Another point of view is quoted too which, in face of the decision of the IMT and while avoiding a precedent, will make crimes against humanity independent, at least insofar as application in Germany is concerned, with the effect that crimes of Germans against Germans could be punished by the military tribunals of the occupying power.
It is maintained that the authority of the Control Commission for Germany with regard to national law gave them the power to extend the scope of punishment for crimes against humanity, independent of the statute. This is opposed by the elementary principle of international law that the legislative authority of an occupying power only begins with the moment of occupation and therefore can have no retrospective force. This principle is not in opposition to the theory that international law acknowledged a so-called “retrospectiveness” for war crimes in a wider sense, for this retrospectiveness only refers to the “international crimes” which are effective outside of one’s own country and have an immediate influence from the point of view of international law. There it serves to carry through international penal law, the realization of which would otherwise be impossible. Here the so-called retrospectiveness means nothing else but that international law takes precedence over national law. This international point of view can have no value for national law.
If a different rule were in operation, all persons who supported the political opponent, i. e., the so-called “patriots” might be punished after the occupation of a country, and Hitler’s Commissar Order [Kommissar-Befehl] according to which all active Communists were to be shot, would be sanctioned, because they were Communists and because of that were declared enemies of mankind, i. e. “criminals against humanity.”
Such a checking of the “morals” of the enemy seems inadmissible; the checking of the conditions in one’s own country is a matter for the people itself; the latter may, on account of its laws, or in a revolution, prosecute its compatriots itself, on the grounds of their behavior. The IMT kept just to this fundamental idea of the statute and one cannot push this law aside arbitrarily by declaring on political grounds that in order to secure peace and democracy all actions committed formerly in the country must be punished as crimes against humanity.
By such an interpretation of the authority in national law you would place yourself in strong opposition to the proclamation of General Eisenhower on the occasion of the occupation of Germany; this was incorporated in Law No. 1 of Military Government, and the following was decreed under threat of death in case of violation:
“Accusation may only be brought in, sentence only be passed and punishment be inflicted, if a law which was in force at the time when the act was committed expressly declares this action punishable. Punishment of acts as a result of application of analogy or according to the opinion of the ‘sound popular feeling’ is prohibited.”
Then attempts were made to support the unlimited legislative right of the occupying power by other means, and they referred to a “debellatio” or “quasi-debellatio” or to the fact that Germany had capitulated unconditionally.
Disregarding the fact that no debellatio is in hand and that only the Allies pronounce themselves occupying powers, and, without mentioning that Grossadmiral Doenitz[[134]] had no valid authority to renounce the protective international law for the German people, the valid law is clearly laid down in the Hague Convention. The regulations contained there in Chapter III have been created just for a capitulation situation and regulate the right of occupation.
Unconditional capitulation does not mean renunciation of the protection of international law nor submission to arbitrariness and illegality; but capitulation within the framework of the war conventions, i. e., within the framework of the Hague Convention.
These provisions of the Hague Convention are not only valid for the time of actual fighting, but must be valid also for the time after cessation of the actual hostilities until the peace treaty. The fundamental idea of the Hague Convention is the protection of the population against the arbitrariness of the enemy, and it cannot be permitted that after cessation of hostilities stricter rules may be applied to the inhabitants of an occupied territory than during the time of actual fighting. In the time when the occupying power hardly seems endangered any more the arbitrariness of a belated punishment of political opponents for actions, which they did in their own country according to the laws of their own country, must not rule.
Law No. 10 cannot disregard this international law, which was acknowledged by the International Military Tribunal after it had been issued and this Tribunal will have to check the authority of the Control Commission and watch that no measures are taken of which the participating peoples of the Signatory States are not informed officially, as the decisive laws were submitted to no special ratification.
Thus we come to the conclusion that the crime against humanity of Law No. 10 must be the same as that of the statute. Bound to a war crime it cannot be applied to actions of Germans against Germans. Connected with a crime against peace you can imagine such crimes against Germans, but these crimes must be in the execution of or in connection with a crime against peace. So at least there must be a close connection with a certain crime.
Certainly it cannot be sufficient, therefore, that an act against a German is committed during a war and objectively furthered the war, but the perpetrator must have known that his action was in connection with a certain crime against peace, even if he himself were not guilty of it. Without this limit, all hard measures, which are taken during a war even against one’s own population, as for example against conscientious objectors and saboteurs, ought to be punished as crimes against humanity in connection with a crime against peace, if this war is declared to be an aggressive one by the enemy, after it has been lost.
Therefore certain things must be in hand which make the crime obvious and prove the connection. If you were to decide otherwise the well-formulated specifications of the statute would be superfluous, and likewise the protection of the population by the Hague Convention would be set aside in an inadmissible way, as the execution of every ordered war measure can be declared “inhuman”. This interpretation of the subsidiary nature of the crime against humanity is confirmed, if one ascertains what the real crime against humanity itself is primarily supposed to be.
In the Flick[[135]] case the prosecution tried to make a definition from Article 6 (c) of the statute. They referred to the clause “in connection with a crime within the jurisdiction of the court”, and interpreted this as follows: That crimes of especially large proportions must be in question, since the International Military Tribunal should only deal with such. Such an interpretation cannot be maintained, as the International Military Tribunal is competent for the most insignificant war crime too, and for every crime against peace, regardless of its dimensions.
It must be admitted that the statute does not contain a definition at all and that characteristics of a crime against humanity are not stipulated. If you want to find such a specification for an independent crime against humanity, which is detached from crimes against peace and war crimes, you can only fall back on the notorious “sound feeling” and you will get lost in the void, because its limits are not fixed, but shift according to the political wish.
Here you can point to the fact that Germany’s unrestrained U-boat war during the First World War was then pilloried as a crime against humanity and caused America to enter the war. During World War II, however, the same manner of warfare was used by the USA against Japan; this was cleared up before the International Military Tribunal by an affidavit of Admiral Nimitz.[[136]]
The answer to the question as to what the crime against humanity itself consists of can only be given from the examples of the statute and can be supported by the interpretation which the International Military Tribunal has given. According to this the crime against humanity is the aggravation of a war crime or a crime against peace. It differs from these crimes by its dimension, its system, and the manner of execution. This can be deduced from the wording of the text of the statute where as typical examples are quoted: “extirpation, enslavement, deportation”.
In cases of crimes against humanity, according to this, actions must be in question which are punishable in themselves already, but in addition to this go further and are extended, so that they are “qualified” crimes. The dimension of the crimes is confirmed by the wording of the Russian text, which does not mention “homicide” but “homicides” in the plural, and not “persecution” but “persecutions” in the plural. The Russian text of Law No. 10 is worded similarly.
This opinion is confirmed in two places by the decision of the International Military Tribunal. The question of crimes against humanity is specially dealt with there in the section “War Crimes and Crimes against Humanity”,[[137]] and in the section “The Law Relating to War Crimes and Crimes against Humanity”.[[138]] Here the actions which are pronounced as crimes against humanity are characterized as perpetrated “on a large scale” and as “methodically” and “systematically” executed. They are called “terror politics” and are called “terrible and brutal” as well as “utterly ruthless”, “deterrent and horrible”. Not isolated murder nor isolated imprisonment nor the isolated boycotting of a Jew is meant, but only a general measure which violates “the most elementary laws of humanity”.
These are not actions which an individual can execute alone; he needs organized help for that. Therefore the perpetrator can only be a commander; he who obeys is his tool and can only become a punishable assistant. Here the individual does not act from his own criminal motive, but he acts according to order and higher instruction. Therefore the motive of the action is basically political. Above all, the Hague Convention had in mind common crimes of individuals, which are rejected by the states themselves and which they themselves prosecute by penal law in the interest of humanity. For this purpose the states had issued corresponding national laws.
In the development of this idea, it is from now on a question of preventing political measures, which are methodically carried through by the state, by international penal law, i. e., measures which are rejected by the International Military Tribunal as “barbaric methods” and as “methods for breaking every resistance.”
The rejection of such methods as crimes against humanity was expressed for the first time in the Hague Convention [Annex] in Article 22, according to which the belligerent nations have no unlimited right in the choice of means for doing damage to the enemy. Now the perpetrators of these actions are to be punishable.
Which means are still permitted in battle, however, and which methods are still admissible, can only be gathered from the practice of the states. If you look for an independent measuring rod for humanity, you must establish that things seem still admissible which force us to stop a moment. The destruction of hundreds of thousands of inhabitants of an unprotected city by bomb carpets and the use of the atomic bomb makes a discussion rather senseless, as humanity did not object to these horrors, which in future will even be surpassed.
This measuring rod must not be forgotten if you proceed to the judgment of the crimes against humanity of which people are accused here. If such monstrosities are deemed admissible on one side, while similar actions on the part of the enemy are condemned, the judgment of humanity can only depend on the approval or disapproval of the purpose and aim, and thereby loses the name of justice.
The firm ground on which the punishable crime against humanity rests, can only be the proved war crime or a definite crime against peace.
[119] Trial of the Major War Criminals, vol. I, pp. 253-255, Nuremberg, 1947.
[120] Ibid., p. 254.
[121] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[122] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.
[123] Control Council Law No. 10, Article III, par. 1(d) and 2, Military Government Ordinance No. 7, Article II.
[124] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.
[125] Ibid., pp. 231, 247, 252, 254, 301.
[126] Ibid., pp. 174, 253.
[127] Ibid., pp. 254, 255.
[128] Ibid.
[129] United States vs. Friedrich Flick, et al. See Vol. VI.
[130] Trial of the Major War Criminals, vol. I, p. 254, Nuremberg, 1947.
[131] Lecture of Professor Donnedieu de Vabres, Association des Etudes Internationales “Le Procès de Nuremberg.” Library of the International Military Tribunal XII 259.
[132] Translation of Protocol in this brief differed from original English copy. Authentic English version has been inserted here.
[133] Compare literature of the Soviet Union. (Karl Brandt 188 [not introduced in evidence].)
1. History of the all-Soviet Communist Party (Bolshevists). Under the editorial management of the commission of the Central Committee of the Communist Party 1938 (Bolshevists) approved by the Central Committee of the Communist Party OGIS State Publishing Office for Political Literature 1945, chapter 8:
“The party of the Bolshevists during foreign military intervention and the Civil War 1918-1920, page 215.
2. “Intervention,” play in 4 acts by Salawin [Slavin] 1940, Moskau [Moscow]-Leningrad (Karl Brandt 127 [not introduced in evidence]).
[134] Defendant before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[135] United States vs. Friedrich Flick, et al. See Vol. VI.
[136] Trial of the Major War Criminals, vol. XVII, pp. 377-381, Nuremberg, 1948.
[137] Ibid., vol. I, pp. 226-228.
[138] Ibid., vol. I, pp. 253-255.