“The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.
“The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.”[677]
Even prior to the foregoing IMT judgment, Lord Chief Justice Wright had so construed the London Charter in an article appearing in volume 62 of the Law Quarterly Review, January 1946, page 41. He limits the discussion to the punishment of war criminals. He there states that—
“All I am here concerned with is a limited area of international law, that relating to the trial and punishment of war criminals in the full sense of that term, as adopted in the Agreement of 8 August 1945, made in London between the Governments of the United Kingdom, of the United States, of the French Republic, and of the Union of Soviet Socialist Republics, which established a Tribunal for the trial and punishment of the major war criminals of the European Axis countries. The Agreement includes as falling within the jurisdiction of the Tribunal persons who committed the following crimes: (a) crimes against peace, which means in effect planning, preparation, initiation, or waging of a war of aggression; (b) war crimes, by which term is meant mainly violation of the laws and customs of war; (c) crimes against humanity, in particular murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population.
“The Tribunal so established is described in the Agreement as an International Military Tribunal. Such an International Tribunal is intended to act under international law. It is clearly to be a judicial tribunal constituted to apply and enforce the appropriate rules of international law. I understand the Agreement to import that the three classes of persons which it specifies are war criminals, that the acts mentioned in classes (a), (b), and (c) are crimes for which there is properly individual responsibility; that they are not crimes because of the agreement of the four governments, but that the governments have scheduled them as coming under the jurisdiction of the Tribunal because they are already crimes by existing law. On any other assumption the court would not be a court of law but a manifestation of power. The principles which are declared in the Agreement are not laid down as an arbitrary direction to the court but are intended to define and do, in my opinion, accurately define what is the existing international law on these matters.”
Similar holdings may be made with respect to Control Council Law No. 10 which recognizes the same basic crimes to be tried by this Tribunal as were recognized by the London Charter. Each such law is an expression of the treaties, rules, and customs of international law on crimes against peace, war crimes, and crimes against humanity; each is in effect and purpose a listing of crimes in violation of preexisting international law and each “to that extent is itself a contribution to international law.” (IMT judgment, supra.) But IMT did not rest its declaration of authority and its procedure upon the Charter which created it, but on the contrary, discussed at length the matters before it from the standpoint of preexisting international law. No defendant was convicted by the International Military Tribunal except for crimes in violation of preexisting international law which they held to exist even as to crimes against peace. It supported its judgment that each crime was based upon preexisting international law or custom of war, discussing at length the matter of violation of international treaties and agreements, particularly the Hague Conventions of 1899 and 1907, the Peace Conference of 1919, the violation of the Versailles Treaty, the various treaties of mutual guarantee, arbitration, and nonaggression, and the Kellogg-Briand Pact.[678]
Under American law (National Defense Act of 4 June 1920) a military court or commission may be set up to try persons in the custody of the United States Government or its armed forces for crimes in violation of international law. The right to punish such war criminals is not dependent upon any question of unconditional surrender or of whether hostilities have ceased. As regards these matters, in the recent case of Yamashita, the United States Supreme Court makes several pronouncements applicable here, as follows:
“The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violation, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by law of war, that sanction is without qualification as to the exercise of this authority so long as a state of war exists, from its declaration until peace is proclaimed. Articles of War, articles 2, 15.
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“The mere fact that hostilities have ceased does not preclude the trial of offenders against the law of war before a military commission, at least until peace has been officially recognized by treaty or proclamation of the political branch of the government. Articles of War, article 15.