“Only by giving consideration to the extraordinary and temporary situation in Germany can the procedure here be harmonized with established principles of national sovereignty. In Germany an international body (the Control Council) has assumed and exercised the power to establish judicial machinery for the punishment of those who have violated the rules of the common international law, a power which no international authority without consent could assume or exercise within a state having a national government presently in the exercise of its sovereign powers.”
Thus, in the first quotation, the judgment states that there has never been an international legislature and that, therefore, international law is not the product of statute; whereas, in the second quotation, it is contended that Control Council Law No. 10 is “the product of legislative action by an international authority.” The third recitation is that Control Council Law No. 10 “is an exercise of supreme legislative power in and for Germany.”
The fourth quotation doubts the legality of our procedure unless the international body in Germany (the Allied Control Council) has assumed and exercised the power to establish judicial machinery for punishment of crimes in violation of international law. The source of the authority to set up courts and machinery for punishment of German war criminals does not depend in any manner upon the exercise of any sovereign power of Germany. This matter will be later discussed.
With these conflicting conclusions as to the source of authority of Control Council Law No. 10, I must respectfully disagree. But the judgment saves itself from them by finally waiving them aside and holding as follows:
“For our purposes, however, it is unnecessary to determine the present situs of ‘residual sovereignty’. It is sufficient to hold that, by virtue of the situation at the time of unconditional surrender, the Allied Powers were provisionally in the exercise of supreme authority, valid and effective until such time as, by treaty or otherwise, Germany shall be permitted to exercise the full powers of sovereignty. We hold that the legal right of the Four Powers to enact C. C. Law 10 is established and that the jurisdiction of this Tribunal to try persons charged as major war criminals of the European Axis must be conceded.”
The judgment makes the further and additional declaration that—
“The fact that the Four Powers are exercising supreme legislative authority in governing Germany and for the punishment of German criminals does not mean that the jurisdiction of this Tribunal rests in the slightest degree upon any German law, prerogative, or sovereignty. We sit as a Tribunal drawing its sole power and jurisdiction from the will and command of the victor states. The power and right exerted is that of victors, not of the vanquished.”
With these declarations there is no disagreement. They waive and completely nullify the foregoing conflicting declarations of the judgment with regard to the “source of authority of Control Council Law No. 10” and that its enactment was the exercise of German sovereignty by the four Allied Powers.
It is my view that the jurisdiction of this Tribunal is limited to the area or field of international law which relates to the punishment of war criminals in the fullest sense of that term. The source of its Charter and jurisdiction to try and punish European Axis war criminals is as follows:
Charter and Jurisdiction of this Tribunal