Here we observe the controlling effect of common international law as such, for the statutes by which we are governed have adopted and incorporated the rules of international law as the rules by which war crimes are to be identified. This legislative practice by which the laws or customs of war are incorporated by reference into a statute is not unknown in the United States. (See cases cited in Ex parte Quirin, supra.)
The scope of inquiry as to war crimes is, of course, limited by the provisions, properly construed, of the IMT Charter and C. C. Law 10. In this particular, the two enactments are in substantial harmony. Both indicate by inclusion and exclusion the intent that the term “war crimes” shall be employed to cover acts in violation of the laws and customs of war directed against non-Germans, and shall not include atrocities committed by Germans against their own nationals. It will be observed that article 6 of the IMT Charter enumerates as war crimes acts against prisoners of war, persons on the seas, hostages, wanton destruction of cities and the like, devastation not justified by military necessity, plunder of public or private property (obviously not property of Germany or Germans), and “ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory.” [Emphasis added.] C. C. Law 10, supra, employs similar language. It reads—
“ * * * ill treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory.” [Emphasis added.]
This legislative intent becomes more manifest when we consider the provisions of the IMT Charter and of C. C. Law 10 which deal with crimes against humanity. Article 6 of the IMT Charter defines crimes against humanity, as follows:
“ * * * 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.”
C. C. Law 10 defines as criminal:
“ * * * Atrocities and offences, 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.”
Obviously, these sections are not surplusage. They supplement the preceding sections on war crimes and include within their prohibition not only war crimes, but also acts not included within the preceding definitions of war crimes. In place of atrocities committed against civilians of or in or from occupied territory, these sections prohibit atrocities “against any civilian population.” Again, persecutions on racial, religious, or political grounds are within our jurisdiction “whether or not in violation of the domestic laws of the country where perpetrated.” We have already demonstrated that C. C. Law 10 is specifically directed to the punishment of German criminals. It is therefore clear that the intent of the statute on crimes against humanity is to punish for persecutions and the like, whether in accord with or in violation of the domestic laws of the country where perpetrated, to wit: Germany. The intent was to provide that compliance with German law should be no defense. Article III of C. C. Law 10 clearly demonstrates that acts by Germans against German nationals may constitute crimes against humanity within the jurisdiction of this Tribunal to punish. That article provides that each occupying authority within its zone of occupation shall have the right to cause persons suspected of having committed a crime to be arrested and “(d) shall have the right to cause all persons so arrested * * * to be brought to trial * * *. 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.”
As recently asserted by General Telford Taylor before Tribunal IV, in the case of the United States vs. Flick, et al.:[574]
“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, since only such crimes may be tried by German courts, in the discretion of the occupying power. 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.”