Source: Law-Reports of Trials of
War Criminals, The United Nations War Crimes Commission, Volume I,
London, HMSO, 1947
[Some sections have been highlighted
provisionally until hyperlinks can be added to appropriate files. Page
numbers precede text.]
p.105
BRITISH LAW
CONCERNING TRIALS OF WAR
CRIMINALS BY MILITARY COURTS
Jurisdiction of the
British Military Courts
Definitions of "War Crime" in the Royal Warrant
Convening of a Military Court
Composition of the Military Court
Mixed Inter-Allied Military Courts
The Judge Advocate
Rules of Procedure and Rules of Evidence
Special Rules of Evidence Applicable in Military Courts Only
Procedure Regarding Crimes Committed by Units or Groups of Men
Representation by Counsel
Punishment of War Crimes
Appeal and Confirmation
The Authority of Decisions of Military Courts
I.
JURISDICTION OF THE BRITISH MILITARY
COURTS
The
jurisdiction of the British Military Courts for the trial of war
criminals is based on the Royal Warrant dated 14th June,
1945, Army Order 81/45, with amendments. The Royal Warrant states that
His Majesty “ deems it expedient to make provision for the trial and
punishment of violations of the laws and usages of war ” committed
during any war “ in which he has been or may be engaged at any time
after the 2nd September, 1939.” It is His Majesty’s “
will and pleasure ” that “ the custody, trial and punishment of
persons charged with such violation of the laws and usages of war shall
be governed by the Regulations attached to the Warrant.”
The
Royal Warrant is based on the Royal Prerogative, which, in English law,
is “ nothing else than the residue of arbitrary authority which at any
given time is legally left in the hands of the Crown ” (Dicey’s
definition).
The
constitutionality and legality of the Royal Warrant and of its
individual provisions have so far not been challenged in any British
Superior Court as have its American counterparts, the orders of the
American executive authorities appointing Military Commissions for the
trial of war criminals under the law of the United States. The latter
have been reviewed by the Supreme Court of the United States in the
so-called Saboteur Case, ex parte Quirin and others (1942)
and in the cases in re Yamashita
(1946) and
in
re Homma (1946).
Provisions
similar to those contained in the Royal Warrant have in the Commonwealth
of Australia been made by an Act of Parliament (War Crimes Act, 1945,
No. 48/1945), and in the Dominion of Canada by an Order in Council, made
under the authority of the War Measures Act of Canada, and entitled The
War Crimes Regulations (Canada) (P.C.
5831 of 30th August, 1945 ; Vol. III, No. 10, Canadian War Orders and
Regulations).
II.
DEFINITION OF “ WAR CRIME ” IN THE
ROYAL WARRANT
Regulation
1 of the Royal Warrant provides that “ war crime ” means a violation
of the laws and usages of war committed during any war in which His
Majesty has been or may be engaged at any time since the 2nd September,
1939. The jurisdiction of the British Military Courts is, as far as the
scope of the crimes subject to their jurisdiction is concerned, narrower
than the .jurisdiction of, e.g., the International Military Tribunal
established by the Four-Power Agreement of 8th August, 1945, which,
according to Article 6 of its Charter, has jurisdiction not only over
violations of the laws and customs of war (Art. 6 (b) ) but also over
what the Charter calls “ crimes against peace ” and “ crimes
against humanity ” (Art. 6 (a) and
(c) ).
III.
CONVENING OF A MILITARY COURT
Regulation
2 of the Royal Warrant gives to certain Senior Officers power
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to
convene Military Courts for the trial of persons charged with having
committed war crimes. The accused is not entitled to object to the
President or any member of the Court or the Judge Advocate, or to offer
any special plea to the jurisdiction of the Court. (Regulation 6.)
IV.
COMPOSITION OF THE MILITARY COURT
Regulation
5 (1) of the Royal Warrant provides that a Military Court shall consist
of not fewer than two officers in addition to the President. If the
accused is an officer of an enemy or ex-enemy Power, the Convening
Officer should, so far as practicable, appoint or detail as many
officers as possible of’ equal or superior relative rank to the
accused. He is, however, under no obligation so to do. If the accused
belongs to the naval or air force of an enemy or ex-enemy Power, the
Convening Officer should appoint or detail if available at least one
naval officer or one air force officer as a member of the Court, as the
case may be.
It
was under this last provision that naval officers were appointed to sit
on the bench, inter alia, in the Peleus
and the Scuttled U-boats
cases (Nos. 1 and 5 of this Volume).
V.
MIXED INTER-ALLIED MILlTARY COURTS
Under
Regulation 5, paragraph 3, the Convening Officer may, in a case where he
considers it desirable so to do, appoint as a member of the Court, but
not as President, one or more officers of an Allied Force serving under
his command or placed at his disposal for the purpose, provided that the
number of such officers so appointed shall not comprise more than half
the members of the Court, excluding the President. It is left to the
discretion of the Convening Officer to appoint or not to appoint Allied
officers as members of the Court.
In
law, a mixed Court constituted under Regulation 5 paragraph 3 of the
Royal Warrant remains, of course, a British municipal court.
In
the Peleus case (No. 1 of
this Volume) and in the Almelo
case (No. 3), Greek and Dutch officers respectively were appointed to
serve on the Military Court ; in the first case because a Greek ship and
18 Greek nationals were involved as the victims of the crime ; in the
second case because the crime had been committed on Dutch territory and
one of the victims was a Netherlands national. In other cases, where the
number of Allied nations involved was obviously too large, as, e.g., in
the concentration camp cases, no Allied officers were appointed. In many
cases, national observers from all nations interested were invited to
attend. That the appointment of Allied members of the Military Courts is
not compulsory is strikingly demonstrated by the trial by a British
Military Court at Singapore of W/O Tomono Shimio of the Japanese Army.
In that case the accused was charged, found guilty and sentenced to
death by hanging, by a Court consisting of British officers only, for
having unlawfully killed American prisoners of war at Saigon, French
Indo-China. The locus delicti commissi was French territory, the
victims were United States nationals.
A
Judge Advocate may be deputed to assist a British Military Court by
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the
Judge Advocate General of the Forces or in default of such deputation
may be appointed by the officer convening the Court. The duties of the
Judge Advocate, according to Rule 103 of the Rules of Procedure, an
Order in Council (S.R. & 0.989/1926 as amended) promulgated under
the authority of Section 70 of the Army Act, consist mainly in advising
the Court on matters of substantive and procedural law. He must also,
unless both he and the Court think it unnecessary, sum up the evidence
before the Court deliberates on its findings. Paragraph (h) of Rule 103
lays down that, “ In fulfilling his duties the Judge Advocate will be
careful to maintain an entirely impartial position.” The Judge
Advocate has no voting powers. The members of the court are judges of
law and fact, and consequently the Judge Advocate’s advice need not be
accepted by them.
If
no Judge Advocate is appointed the Convening Officer must appoint at
least one officer having legal qualifications as President or as member
of the Court, unless in his opinion no such officer is necessary (Rule
of Procedure 103 and Regulation 5, paragraph 2, of the Army Order 81 of
1945, as amended). Since the Legal Member, unlike the Judge Advocate, is
a member of the Court, he has the right to vote.
VII.
RULES OF PROCEDURE AND RULES OF EVIDENCE
The
Royal Warrant provides in Regulation 3 that, except in so far as therein
otherwise provided, the Rules of Procedure applicable in a Field General
Court Martial of the British Army shall be applied so far as applicable
to the Military Courts for the trial of war criminals. These rules are
contained in the British Army Act and the Rules of Procedure made under
the Act by an Order in Council, the latter being a piece of delegated
legislation enacted by the Executive in 1926 (S.R. & O. 989/1926).
According
to Section 128 of the Army Act, the rules of evidence of a British Court
Martial, and under the Royal Warrant also of Military Courts, are the
rules applicable in English Civil Courts. By “ Civil Courts” is
meant Courts of ordinary criminal jurisdiction in England, including
Courts of summary jurisdiction (Rule 73 of the Rules of Procedure,
1926).
The
rules of evidence referred to include for instance the maxim that the
accused is innocent until he is proved guilty. In the Dreierwalde
case (No. 7 of this volume) for example this principle was underlined
and elaborated by the Counsel for the Defence, in his final address,
thus : “ . . . it is for the Prosecution to establish beyond
reasonable doubt that which is alleged in the charge before you ; it is
not for the accused to clear himself. On the other hand, it is not for
the Prosecution to establish that they have proved their case beyond all
sort of doubt, they need only establish it beyond that sort of doubt
which would be left in the mind of an ordinary reasonable man.” The
Judge Advocate in his summing up said to the Court, “ It is for you to
decide whether the prosecution have made out their case . . .
if you have a reasonable doubt as to what happened on that
pathway ; that you think the evidence is consistent possibly with a
murdering or possibly consistent with a shooting after a genuine attempt
to escape you must acquit the accused.”
The
rules of Civil Courts in England and, under the provisions quoted above,
also of British Military Courts, differ in certain respects from the
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rules
of procedure under which Courts of continental countries exercise
jurisdiction. One of the main differences is that in English Courts the
accused is allowed, if he so chooses, to give evidence on his own behalf
as a witness under oath. The Dreierwalde
trial again provides an
example. There, the
Judge Advocate told Amberger that, should he decide to give evidence on
oath, he would be sworn and would no doubt be questioned to find whether
his words were true. Should he decide not to do so, it would be
permissible instead for him simply to make a statement, and in such a
case his words could not be questioned as to their truth. In either
event, his Counsel would be able to address the Court and call any
witnesses, but, the Judge Advocate pointed out, if Amberger decided to take
the latter course, so that his story could not be tested by questioning,
it would not carry the same weight as would the former. The accused
decided to give evidence on oath. Both the defending Counsel and the
Judge Advocate subsequently pointed out to the Court that the evidence
on oath which he gave must be treated
in the same way as that of any of the other witnesses.
There
are, of course, also differences in the way in which witnesses are
examined, on the one hand, in the law of most Continental countries,
where it is the President of the Court who primarily directs the
examination, and, on the other hand, in English law, where it is mainly
the responsibility of Counsel for the Prosecution and for the Defence to
examine the witnesses “ in chief,” to cross-examine and to
re-examine them.
VIII.
SPECIAL RULES OF EVIDENCE APPLICABLE IN
MILITARY COURTS ONLY
In
the interest of the reliability of the fact-finding of the Court,
English procedure, very like most continental codes of procedure,
excludes certain types of evidence, e.g., written statements in
circumstances where the person can be examined viva
voce.
In
view of the special character of the war crimes trials and the many
technical difficulties involved, the Royal Warrant, by Regulation 8, has
introduced a certain relaxation of the rules of evidence otherwise
applied in English Courts.
Under
Regulation 8 (i) a Military Court may take into consideration any oral
statement or any document appearing on the face of it to be authentic
provided the statement or document appears to the Court to be of
assistance in proving or disproving the charge, notwithstanding that
such statement or document would not be admissible in evidence in
proceedings before a Field General Court Martial. It is under this
provision that Military Courts are entitled to admit, e.g., affidavits
or statutory declarations, i.e., written statements made under oath,
which otherwise would not be received as evidence in an English Court.
Regulation
8 enumerates as examples certain types of documents which may be
received as evidence.
IX.
PROCEDURE REGARDING CRIMES COMMITTED BY
UNITS OR GROUPS OF MEN
Regulation
8 (ii) of the Royal Warrant; as amended, provides :-“ Where there is
evidence that a war crime has been the result of concerted action upon
the part of a unit or group of men, then evidence given.
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upon
any charge relating to that crime against any member of such unit or
group may be received as prima
facie evidence of the
responsibility of each member of that unit or group for that crime. In
any such case all or any members of any such unit or group may be
charged and tried jointly in respect of. any such war crime and no
application by any of them to be tried separately shall be allowed by
the Court.”
Regulation
7 of the Royal Warrant provides that Counsel may appear on behalf of the
Prosecutor and accused in like manner as if the Military Court were a
General Court Martial. The appropriate provisions of the Rules of
Procedure, 1926, apply accordingly.
Rule
88 provides that Counsel shall be allowed to appear on behalf of the
Prosecutor and accused at General and District Courts-Martial :
(1) when held in the United Kingdom ; and
(2) when
held elsewhere than in the United Kingdom, if the Army Council or the
Convening Officer declares that it is expedient to allow the
appearance of Counsel.
The
Rules of Procedure, 1926, provide that English and Northern Irish
barristers-at-law and Solicitors, Scottish Advocates or Law Agents, and
the corresponding members of the legal profession in other British
territories, are qualified to appear before a Court Martial.
Regulation
7 also provides that, in addition to these persons qualified in British
law, any person qualified to appear before the Courts of the country of
the accused, and any person approved by the Convening Officer of the
Court, shall be deemed to be properly qualified as Counsel for the
Defence.
In
practice accused persons tried as war criminals are defended either by
advocates of their own nationality or by British serving officers
appointed by the Convening Officer, who may or may not be lawyers.
The
punishment of a war crime consists in any one or more of the
following
:-
(1) Death (either by
hanging or shooting).
(2) Imprisonment for
life or for any less term.
(3) Confiscation.
(4) A fine.
The
Court may also order the restitution of money or property taken or
destroyed by the accused. (Regulation 9.)
XII.
APPEAL AND CONFIRMATION
No
right of appeal in the ordinary sense of that word exists against the decision
of a Military Court. The accused may, however, within 48 hours give
notice of his intention to submit a petition to the Confirming Officer
against the finding or the sentence or both. The petition must be
submitted within 14 days. If it is against the finding it shall be
referred by the Confirming Officer
to the Judge Advocate General or to his deputy. The finding.
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and
any sentence which the Court had jurisdiction to pass, if confirmed, are
valid, notwithstanding any deviation from the Regulations or the Rules
of Procedure or any defect or objection, technical or other. An
exception exists only in the case where it appears that a substantial
miscarriage of justice has actually occurred.
No
action has yet been taken before British civil courts similar to that
taken in the United States in the Quirin, Yamashita and Homma
cases, where the proceedings of United States Military Commissions were
made the subject of judicial review (see para.
I supra and Annex II, pp. 11 I, 112-13 and 121).
XIII.
THE AUTHORITY OF DECISIONS OF MILITARY
COURTS
The
Military Courts are not superior courts and their decisions are
therefore not endowed with that special binding authority which
Anglo-American law attaches to judicial decisions as precedents. Their
relevance for the development of International Law may rather be
compared with the relevance of judicial decisions in countries whose
legal systems are not based on the Anglo-American doctrine of the
binding character of precedents. Although the findings and sentences of
British Military Courts trying war criminals do not lay down rules of
law in an authoritative way, they are declaratory of the state of the
law and illustrative of actual State practice. |