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.