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.