“Article 23(h).—* * * It is expressly forbidden * * * to declare abolished, suspended, or inadmissible in a court of law the rights and actions [of the nationals] of the hostile party.
“Article 43.—The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the law in force in the country.
“Article 46.—Family honor and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.”
Both the international rules of war and C. C. Law 10 inhibit the torture of civilians by the occupying forces. Under the Night and Fog decree civilians were secretly transported to concentration camps and were imprisoned under the most inhumane conditions as was shown by the above statements from captured documents. They were starved and ill-treated while in concentration camps and prisons. Thus, the Night and Fog decree violated these express inhibitions of international law of war as well as the express provisions of C. C. Law 10.
Such imprisonment and ill-treatment was also in violation of the rule prescribed by the Conference of Paris of 1919 which prohibits the “internment of civilians under inhumane conditions”. The Night and Fog decree was in violation of the international law as recognized by the Paris Conference of 1919 in that the NN prisoners were deported to Germany and forced to labor in the munitions plants of the enemy power.
The foregoing documents establish beyond dispute that they were so employed in munitions plants with the sanction and approval of the Reich Ministry of Justice under the approval of the defendant von Ammon.
The extent of activity and the criminality of the defendants who participated in the execution and carrying out of the Night and Fog decree will be discussed under the summation of the evidence relating to each such defendant. Each defendant has pleaded in effect as a defense the act of State as well as superior orders in justification or mitigation of any crime he may have committed in the execution of the Night and Fog decree. The basis for individual liability for crimes committed and the law relating thereto was clearly and ably declared by the IMT judgment which reads as follows:
“It was submitted that international law is concerned with the actions of sovereign states, and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. In the recent case of Ex parte Quirin (1942 317 U. S. 1), before the Supreme Court of the United States, persons were charged during the war with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said:
“‘From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights, and duties of enemy nations as well as enemy individuals.’
“He went on to give a list of cases tried by the Courts, where individual offenders were charged with offenses against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”[658]