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Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume III, London, HMSO, 1948 [Page numbers precede text] FOREWORD p.ix This third volume includes reports of ten cases. They are drawn from widely distant parts of the globe ; the trial courts are diverse in character, consisting of National Courts and Military Courts acting under different warrants or commissions. The charges were diversified in character. Perhaps the most important case from the standpoint of international law is that which stands first in the volume. The prisoner was a German named Klinge. He was indicted before a Norwegian Court for torturing Norwegian civilians, and in one case so as to cause the victim’s death. The trial court sentenced him to death under Articles of the Civil Criminal Code as modified by a Provisional Decree of 1945, which gave new and special powers to the Court in the case of war crimes, including the power to impose the death sentence where under the relevant articles of the Civil Criminal Code imprisonment was the severest penalty. On appeal, the sentence was upheld by the Supreme Court ; nine of the thirteen judges affirmed the decision of the trial judges, four dissented. The question was whether the Decree of 1945, which was passed after the crime was committed and which first gave the Court power to sentence to death for the offence, had retrospective effect, notwithstanding Article 97 of the Constitution of Norway, which is in the following terms : " No law may be given retroactive effect " and Article 96 which vetoed any trial except according to Norwegian law, as follows : " No one may be convicted except according to law, or be punished except according to judicial sentence. Examination by torture must not take place." As the actual crime was covered by the specific penal prohibitions of the Norwegian Civil Criminal Code, no question of retroactive operation arose as to the conviction, but it did arise as to the sentence. The Law of 1945 was clearly, it was held, intended to have a retroactive effect in permitting the death sentence. The majority of the Court held that the particular classes of offences against the laws and customs of war depended on rules of international law and lay outside the intended scope of Article 97 of the Constitution. These were directly binding on the prisoner as from the outbreak of war and by international law his crimes could be punished by the death sentence. The majority fully accepted that Sections 96 and 97 were constitutional limitations binding on both the Norwegian legislature and Courts, but were of the opinion that the laws and customs of war were incorporated into Norwegian Law and punishable by the penalty described by International Law for the offence, namely death. The minority were of opinion that Section 96 was obligatory and meant by " law " law in the sense of formal laws or regulations passed by the p.x Norwegian legislature and that Section 97 excluded the retroactive effect of the law of 1945 which, in their opinion, first legalised the death penalty for the crime. I may, perhaps, be pardoned for giving a reference to an article which I contributed to the Fall Issue of the Toronto Students’ Journal, " Obiter Dicta. " At p. 20 I have referred to the rule against retroactive law as a principle of justice, not jurisdiction, quoting the judgment of the International Military Court at Nuremberg, and also quoting a valuable statement of principle by Willes J. in the English case of Phillip v. Eyre, that there may be cases which the existing law for want of prevision fails to meet, so that to refuse the intended retroactive effect of the remedial law may involve such injustice that the maxim summum jus summa injuria would apply. But beyond that, the objection had also to be considered, under Article 96 that the law being applied was not the ordinary penal law only of the nation such as is contemplated by Article 96, but a special law, namely, international law, and that the international law and customs of war had been incorporated into Norwegian law. This latter involves the meaning of law in Section 96. If I may refer again to my article, on p. 19, I contemplated the possible jurisdiction of a national Court to administer not only the ordinary national law, but also the international law, such as that of Prize and of the laws and customs of war. The Norwegian Court has thus, in treating the Court as a Court of international law as well as of national law, decided a question which did not arise for direct decision by the Nuremberg Tribunal. The next case recorded in the volume is also from the Norwegian Supreme Court. It is the case of Richard Wilhelm Hermann Bruns and two others. Charges of murder there failed. As to the charges of torturing, the Supreme Court held that the inflicting of torture was a serious war crime, and though it did not result in death or permanent disability, might justify the death sentence. This decision followed the decision of the Supreme Court on these questions of retroactive operation which I have just referred to. The Court did not find it necessary to consider the defence advanced that the torturing was justified by way of reprisal. No doubt the true import of the theory of reprisals forms one of the most important and difficult questions which now face the student of the law of war. But it is difficult to regard with anything but distaste the suggestion that torture can be justified as a reprisal against inhabitants of an occupied country for their acts in working with the underground movement. It is, however, technically inadmissible on many grounds. The case next reported comes from the Permanent Military Tribunal at Strasbourg and the French Court of Appeal. The chief defendant was the ex-Gauleiter of Alsace ; the main question was whether the Germans had conquered the province or were merely in occupation until the time came when it was freed by the Allies. Once that was decided against the defendants, the numerous consequential questions were not difficult to decide, though the decisions are important. They are too complicated to be set out in this Foreword. They are examined in the Report as fully and precisely as is possible. But the clear decision that recruiting Alsatians to serve in the German army was contrary to the laws of war, having regard to the status of Alsace, will be a leading case on the point.. p.xi The other cases reported in this volume are from Allied Military Courts, five from Military Commissions set up by the United States in Germany, one from a British Military Court in Germany, and one from a British Military Court sitting at Kuala Lumpur in the Malay Peninsula. They were all concerned with the murder or maltreatment of prisoners of war or civilians and with breaches of the Geneva Convention, and also the Hague Convention No. IV of 1907. They all involve subsidiary points of interest. It is curious to find in war crimes cases such defences as that the killing was done on the spur of the moment, or was done by the prisoner when insane or under the influence of drink, or in self-defence, or under provocation. These defences, after being carefully considered, failed. There were also some interesting defences of a technical character which the reader of the Reports should consider in detail. This volume has been prepared by Mr. George Brand, LL.B., of. the Commission’s legal staff, under the supervision of the Legal Publications Committee, composed of Mr. Kintner (United States), Chairman, Dr. Schram Nielsen (Denmark), and Mr. Aars-Rynning (Norway). The outlining of the Norwegian cases is based on reports submitted to the Commission by Mr. Aars-Rynning, who has also assisted in drafting the Annex on Norwegian Law. WRIGHT [Lord, of Durley]
London, January, 1948 |