The Potsdam Agreement related to punishment of all Axis war criminals. Control Council Law No. 10 sets up the machinery to apply the Potsdam Agreement to European Axis war criminals and particularly to German war criminals.
The judgment further declares, however, that “in the case of Germany, subjugation has occurred by virtue of military conquest.” This holding is based upon the previous declarations that at the time of the unconditional surrender of the German armed forces the Nazi government had completely disintegrated, requiring the victorious belligerent to take over the complete exercise and control of governmental affairs of Germany, and thereby resulting in the transfer of her sovereignty to the victorious Allied Powers. In this holding, the judgment simply attempts to apply the provisions of rule 275 that “subjugation or conquest implies a transfer of sovereignty.” Obviously this rule implies that the question of subjugation is one of fact or intention to be determined by the successful belligerent. There has been no act or declaration of the Allied Powers, either before or since their occupation of Germany under the terms of the unconditional surrender, which could possibly be construed as showing that they intend by the subjugation and occupation of Germany to transfer her sovereignty to themselves. To the contrary every declaration that has been made by the Allied Powers with respect to their occupancy of Germany and the enactment of laws for her control during the occupation has emphasized the fact that the ultimate purpose of such occupancy is to destroy the Nazi form of government and militarism in Germany so that as thus extirpated from these influences she may take her place in the comity of the nations of the world.
The declaration made in the judgment that Germany has been subjugated by military conquest and that therefore her sovereignty has been transferred to the successful belligerent Allied Powers cannot be sustained either as a matter of fact or under any construction of the foregoing rules of land warfare. The control and operation of Germany under the Allied Powers’ occupation is provisional. It does not transfer any sovereign power of Germany other than for the limited purpose of keeping the peace during occupancy, and for the ultimate rectification of the evils brought about by the Nazi regime and militarism, and in order to destroy such influences and to aid in the establishment of a government in and for Germany under which she may in the future earn her place in the comity of nations. In any event this Tribunal has no power or jurisdiction to determine such questions.
The judgment further declares that Control Council Law No. 10 has a dual aspect. The judgment states:
“In its first aspect and on its face it purports to be a statute defining crimes and providing for the punishment of persons who violate its provisions. It is the legislative product of the only body in existence having and exercising general lawmaking power throughout the Reich.”
Obviously this aspect or theory of reasoning is predicated upon the previous declarations that since at the time of the unconditional surrender the Nazi government had completely collapsed, and that, since the Allied Powers assumed the entire control of the governmental function of Germany, her sovereignty was thereby transferred to the Allied Powers. It is then declared that Control Council Law No. 10 was enacted by the Allied Control Council in and for Germany in the exercise of this transferred German sovereignty. Under this reasoning Control Council Law No. 10 merely became a local law in and for Germany because Germany, in the exercise of her national governmental sovereignty, could not enact the law as international law. Nor can the Allied Control Council in the exercise of the transferred sovereignty of Germany enact international law.
The judgment further declares that the same and only supreme legislative authority in and for Germany, the Allied Control Council, gave this Tribunal jurisdiction and authority to enforce the local German law so enacted by it and to punish crimes in violation of it, including crimes by German nationals against German nationals as authorized by Control Council Law No. 10. From the foregoing premise the conclusion is inescapable that the Allied Control Council in the exercise of the sovereign power of Germany has enacted the law in and for Germany and has authorized this Tribunal to punish criminals who violated the law in the manner of a German police court.
The foregoing conclusion is based upon the articles by Freeman and Fried, from which quotations are made in the judgment. This same theory by Fried has been expressed in a subsequent statement wherein he states, after reviewing the foregoing facts with respect to the unconditional surrender of the armed forces and the disintegration of the Nazi government, that—
“This Tribunal (III) has the double quality of being an international court and, owing to the special situation of Germany at the present time, also a German court.”
This is the only possible conclusion that can be reached in the premises stated.