edition of the military manual edited by a military judge of the Luftwaffe, Dr. Waltzog, carried the following preface:
"Officers and noncoms have, before taking military measures, to examine whether their project agrees with International Law. Every troop leader has been confronted, at one time or another, with questions such as the following: Am I entitled to take hostages; How do I have to behave if bearing a flag of truce; What do I have to do with a spy, what with a franctireur; What may I do as a permitted ruse of war; What may I requisition; What is, in turn, already looting and, therefore, forbidden; What do I do with an enemy soldier who lays down his arms; How should enemy paratroopers be treated in the air and after they have landed?"
An authoritative collection of German Military Law ("Das gesamte Deutsche Wehrrecht") published since 1936 by two high government officials, with an introduction by Fieldmarshal von Blomberg, then Reich War Minister and Supreme Commander of the Armed Forces, carried in a 1940 supplement this important statement:
"The present war has shown, even more than wars of the past, the importance of disputes on International Law.....In this connection, the enemy propaganda especially publicizes questions concerning the right to make war and concerning war guilt, and thereby tries to cause confusion; this is another reason why it appears necessary fully to clarify and to make widely known the principles of International Law which are binding on the German conduct of war."
Every German soldier had his attention called to restrictions by International Law in his very paybook which carried on the first page what was known as "The Ten Commandments for Warfare of the German Soldier". Article 7 of these rules provided specifically:
"The civilian populations should not be injured.The soldier is not allowed to loot or to destroy."
Further arguing the proposition of individual non-responsibility for their clients, several defense counsel have submitted that this trial in effect represents a trial of the victors over
In the fullest appreciation of the responsibilities devolving upon the Tribunal in this particular phase of the case, as in all phases, reference is made to the speech by Mr. Justice Jackson in the International Military Tribunal trial in which he said:
What Justice Jackson said at the beginning of that trial, the Tribunal says at the termination of the current trial.
the vanquished. This objection dissolves so quickly under a serious glance that one wonders if it was presented reflectively. In the first place, the defendants are not being tried in any sense as "vanquished individuals" any more than it is to be assumed that a person taken into custody by police authorities is to be regarded as a "vanquished person." Wars are fought between nations as such and not between individuals as such. In war there is no legal entity such as a "defeated individual". The defendants are in court not as members of a defeated nation but because they are charged with crime. They are being tried because they are accused of having offended against society itself, and society, as represented by international law, has summoned them for explanation. The doctrine that no member of a wronged community may try an accused would for all practical purposes spell the end of justice in every country. It is the essence of criminal justice that the offended community inquires into the offense involved.
"We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."
Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 64 - 66 (original mimeographed copy)
Ken Lewis