Source: Law-Reports of Trials of War Ciminals, The United Nations War Crimes Commission, Volume XII, London, HMSO, 1949

THE GERMAN HIGH COMMAND TRIAL

TRIAL OF WILHELM VON LEEB AND THIRTEEN OTHERS

UNITED STATES MILITARY TRIBUNAL, NUREMBERG,
30TH DECEMBER. 1947 - 28TH OCTOBER, 1948

Part I Part II Part III Part IV Part V Part VI Part VII Part VIII 

PartVI

5. THE JUDGMENT OF THE TRIBUNAL

The Tribunal in its Judgment summarized the progress of the trial and set out a very full summary of the evidence in the case. It also touched upon many legal matters, its words on which, along with its findings, are reproduced in the following pages.(Footnote 1: At several points the Tribunal quoted lengthy passages from the Judgment of the International Military Tribunal. In the interests of space some such passages are omitted from the paragraphs which follow, references being given to the edition of the Judgment of the International Military Tribunal, published as British Command Paper Cmd. 6964)

(i) The Basic Law Applying to the Case. (Footnote 2: Regarding the United States law and practice relating to the trial of war criminals, see, in general, Vol. III of these Reports, pp. 103-20)

Under a heading : The Basic Law and Law of the Case, the Tribunal set out two sets of material headed respectively Control Council Law No. 10 and International Treaties. The paragraphs appearing under the first sub-heading begins :

" The preamble to Control Council Law No. 10 reads as follows :

‘ In order to give effect to the terms of the Moscow Declaration of 30th October, 1943, and the London Agreement of 8th August, 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the Inter-national Military Tribunal, the Control Council enacts as follows :

Article I

‘ The Moscow Declaration of 30th October, 1943, " Concerning Responsibility of Hitlerites for Committed Atrocities " and the London Agreement of 8th August, 1945, " Concerning Prosecution and Punishment of Major War Criminals of the European Axis " are made integral

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parts of this law. Adherence to the provisions of the London Agreement by any of the United Nations, as provided for in Article V of that Agreement, shall not entitle such nation to participate or interfere in the operation of this Law within the Control Council area of authority in Germany.

Article II

‘ 1. Each of the following acts is recognized as a crime :

‘ (a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of International Laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

‘ (b) War Crimes. Atrocities or offences against persons or property constituting violations of the laws or customs of war, including, but not limited to, murder, ill-treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property ; wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

(c) Crimes against Humanity. Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane  acts committed against any civilian population, or persecutions on political, racial or religious ground whether or not in violation of the domestic laws of the country where perpetrated.

(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.

‘ 2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal, or (b) was an accessory to the commission of any such crime or ordered or abetted the same, or (c) took a consenting part therein, or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime, or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country.’ "

The Tribunal then quoted the entire section headed " The Law of the Charter " from the Judgment of the International Military Tribunal, (Footnote: See British Command Paper Cmd. 6964, pp. 38-42) in which the latter is mainly concerned to show that its Charter was " the expression of International Law existing at the time of its creation " and that " International Law imposes duties and liabilities upon individuals as 

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well as upon States," in consequence of which the former may be made criminally responsible for their acts ; the International Military Tribunal took special pains to show that the provisions of the Charter as to crimes against peace did not violate the principle nullem crimen sine Iege [no crime without law-editor], nulla poena sine lege [no punishment without law-editor], even if that maxim were deemed applicable. (Footnote 1: As to this maxim compare Vol. IX, pp. 32-9)

The Tribunal expressed the view that :

" This reasoning applies also to Control Council Law No. 10. The same authority creating the London Agreement created this Control Council Law. As was said by Tribunal 111 in the Justice Case : (Footnote 2: A report on this trial is contained m Vol. VI of these Reports, pp. 1-110)

‘ It can scarcely be argued that a Court which owes its existence and jurisdiction solely to the provisions of a given statute could assume to exercise that jurisdiction and then, in the exercise thereof, declare invalid the act to which it owes its existence. Except as an aid to construction we cannot and need not go behind the statute.’

" The Charter, supplemented by Control Council Law No. 10, is not an arbitrary exercise of power, but  ' 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.’ (Emphasis supplied, Judgment, IMT, supra.) As a matter of interest to students we might point out that this general principle is sustained by the following extract from Grotius, written in 1625 :

‘ It is proper also to observe that Kings and those who are possessed of sovereign power have a right to exact punishment not only for injuries affecting immediately themselves or their own subjects, but for gross violations of the law of nature and of nations, done to other states and subjects.’ (Grotius, The Rights of War and Peace, translated from the Latin by A. C. Campbell, A.M. (1901) M. Walter Dume, publisher, Washington and London, Cap. XX, p. 247.)

" We also refer to an article from the Manchester Guardian of 28th September, 1946, containing a .description of the trial of Sir Peter of Hagenbach held at Breisach in 1474. The charges against him were analogous to ‘ Crimes against Humanity ’ in modern concept. He was convicted. " 

However, these citations are of academic interest only, merely given to show the soundness of the Judgment of the IMT. We think it may be said the basic law before mentioned simply declared, developed, and implemented International Common Law.

" By so construing it, there is eliminated the assault made upon it as being an ex post facto enactment.

" Our view is fortified by the judgment rendered in Case No. 7, U.S. vs. Wilhelm List, et al, (Footnote 3: Reported in Vol. VIII of these Reports, pp. 34-92) where (p. 10434) it is said :

‘ We conclude that pre-existing International Law has declared the acts constituting the crimes HEREIN CHARGED and included in Control Council Law No. 10 to be unlawful, both under the conventional law and the practices and usages of land warfare that had ripened into

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recognized customs which belligerents were bound to obey. Anything in excess of existing International Law therein contained is a utilization of power and not of law. It is true, of course, that courts authorized to hear such cases were not established nor the penalties to be imposed for the violations set forth. But this is not fatal to their validity. The acts prohibited are without deterrent effect unless they are punishable as crimes.’ (Emphasis supplied.) . . .

" Many of the questions in the IMT case are presented in this case. The same unlawful orders, acts, and practices are involved ; only the defendants are different. Hitler was the very centre of vast expanding concentric rings of influence that touched every person in Germany. The defendants in this case are only one or two stops removed from Goering, Keitel, Jodl, Doenitz, and Raeder, defendants in the IMT case. Much of the evidence introduced in this case was introduced in the IMT hearing. Consequently, the great importance of the judgment of that trial, as applying to the issues of law involved in this case, is readily apparent.

" The IMT Judgment contains an elaborate account of Hitler’s rise to power, the plans and acts of aggression, and the barbarities and crimes perpetrated upon the armed forces and civilians of the countries with which Germany was at war. In view of the fact that these general findings are supported by the record in the instant case, we shall make further liberal quotations from and references to it in this judgment." (Footnote 1: Regarding the relationship between the International Military Tribunal and the United States Military Tribunals, see also Vol. IX, pp. 54-7)

Under the second subheading, INTERNATIONAL TREATIES, the Tribunal quoted the section of the Judgment of the International Military Tribunal which appears immediately before that last quoted, and which is headed " Violations of International Treaties." (Footnote 2: See Cmd. 6964, pp. 36-8) Here the latter court, having pointed out that " The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties, (Footnote 3: Italics inserted.) refers to violations by Germany of the most important of these treaties that were in fact broken by that State.

(ii) Objections During the Trial

.Under this heading the Tribunal made the following remarks :

" The objection has been raised that this Tribunal is not a proper forum in which to try the defendants for the crimes charged. It is said that they were prisoners of war and that they are subject to trial only by a general court-martial. We find no merit in such contention.

" There is no doubt of the criminality of the acts with which the defendants are charged. They are based on violations of International Law well recognized and existing at the time of their commission. True no court had been set up for the trial of violations of International Law. A State

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having enacted a criminal law may set up one or any number of courts and vest each with jurisdiction to try an offender against its internal laws. Even after the crime is charged to have been committed we know of no principle of justice that would give the defendant a vested right to a trial only in an existing forum. In the exercise of its sovereignty the State has the right to set up a Tribunal at any time it sees fit and confer jurisdiction on it to try violators of its criminal laws. The only obligation a sovereign State owes to the violator of one of its laws is to give him a fair trial in a forum where he may have counsel to represent him-where he may produce witnesses in his behalf and where he may speak in his own defence. Similarly, a defendant charged with a violation of International Law is in no sense done an injustice if he is accorded the same rights and privileges. (Footnote 1: Regarding the rights of alleged war criminals, including war traitors, and of prisoners of war, to a fair trial, see Vol. V of these Reports, pp. 70-81, and Vol. VI, pp. 96-104) The defendants in this case have been accorded those rights and privileges. 

"As regards the contention that the defendants are prisoners of war and that the Geneva Convention, Article 63, requires that a prisoner of war be tried by a general court-martial we call attention to the fact that this provision referred to is found in an international agreement, that was entered into and to which both the United States and Germany were signatories, to protect prisoners of war after they acquire such status and not to extend to them any special rights or prerogatives with respect to crimes they may have committed before acquiring a prisoner-of-war status. Such is the reasoning of the Yamashita Case, 327 U.S. 1 : 66 Sup. Ct. 348. (Footnote 2: Reported in Vol. IV of this series, pp. l-96. Regarding the plea under treatment see especially pp. 46, 69 and 78 of Vol. IV) We think the reasoning sound.

" Article 63 of the Geneva Convention provides :

‘ Sentence may be pronounced against a prisoner of war only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining power.’ 

Therefore, say defence counsel, the defendants must be tried by a general court-martial since the defendants were prisoners of war taken by the United States and members in the armed forces of the United States committing crimes are tryable by court-martial. But the trial of men in the military forces of the United States by court-martial can be only for crimes committed after the accused acquires and during the time he possesses the status of a member of the armed forces of the United States. One who committed murder and thereby violated the law of the State before he was inducted into the military service clearly could not be tried for that crime by a court-martial for violating articles of war which did not apply to him when he committed the murder.

" Nor do we think it necessary that defendants be discharged as prisoners of war before being brought to trial. Certainly if a man is arrested for violating a municipal traffic ordinance which subjects him only to a civil penalty in a magistrate’s court and while he is in custody it is discovered that the day before he committed a murder, there is no violation of any principle of justice in holding him in custody and surrendering him to the officers of a court that has competency to try him for murder.

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" We are not deciding whether the United States or France or any other nation lawfully could or could not try the defendants in a court-martial for a violation of International Law. That is not before us. If that may be done, a court-martial has not exclusive jurisdiction.

" The crimes including the war crimes charged against the defendants are for violations of International Criminal Law. This Tribunal by Control Council Law No. 10 is vested with authority to try defendants for the crimes charged. That such jurisdiction possibly may be exercised by another military court also is of no consequence. If two courts have concurrent jurisdiction to try the same case the first court that exercises jurisdiction may properly dispose of the case.

" The IMT said :

‘ The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the , Tribunal. . . .

‘ The Tribunal is of course bound by the Charter and the definition which it gives of war crimes and crimes against humanity (Trial of the Major War Criminals, Vol. I, pp. 218, 253).

" What was held by the IMT with respect to the London Agreement and Charter, the basic laws under which it functioned, is authority for a similar holding by this Tribunal with respect to the basic law under which it was set up and under which it functions.

" We deem it unnecessary to discuss the objection that Control Council Law No. 10 is in violation of the maxim nullem crimen sine lege ; nulla poena sine Iege. We find it without merit. It has been passed upon so many times by the Nuremberg Tribunals and held without merit, that further comment here is unnecessary. (Footnote I: See especially Vol. IX, pp. 32-5)

" The further objection was made that one of the nations, namely the USSR, co-operated in the promulgation of Control Council Law No. 10 after it had engaged in a war of aggression which is made criminal under the law ; this objection also is without merit. The London Agreement and Charter from which Control Council Law No. 10 stems has been approved by nineteen nations other than the four signatories thereto. We need not and do not determine whether the charge that one of the signatories of the London Agreement and Charter and Control Council Law No. 10 is guilty of aggressive war for such determination could avail the defendants nothing. Under general principles of law, an accused does not exculpate himself from a crime by showing that another committed a similar crime, either before or after the alleged commission of the crime by the accused. 

" Various of the defendants by way of objection or motions have raised the question of the sufficiency of the evidence on the part of the prosecution to make out a prima facie case of the guilt of the respective defendants. Numbers of these motions were ruled upon during the course of the trial. As to such motions not heretofore ruled upon, the same are denied, inasmuch

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as the questions raised by such motions are involved in the final determination of the guilt or the innocence of the defendants."

(iii) The Dismissal of the Conspiracy Count

The Tribunal dealt with Count IV of the Indictment in the following words :

" In view of the conclusions presently to be announced, we think it proper now to dispose of this count.

" We have heretofore set out paragraph 2 of Article II of Control Council Law No. 10, which provides that any person who was an accessory to the commission. of Crimes against Peace, War Crimes, or Crimes against Humanity, as defined in said law by Article II, Sec. 1, paragraphs (a), (b), and (c), or who ordered or abetted such offence, or took a consenting part therein, or who was connected with any plans or enterprises involving its commission should be deemed guilty of the commission of said offences. It is difficult to see, as the facts have developed in this case, how a conspiracy charge can be of the slightest aid to the prosecution. If the defendants committed the acts charged in this conspiracy count, they are guilty of crimes charged under Counts I, II, and III and are punishable as principals. 

" The conspiracy count has not resulted in the introduction of any evidence that is not admissible under the other counts, nor does it, as the evidence has developed in this case, impose any criminality not attached to a violation under such preceding counts.

" Inasmuch as we hold that under the facts of this case no separate substantive offence is shown under Count IV, we strike it as tendering no issue not contained in the preceding counts, and proceed to determine the guilt or innocence of the defendants under Counts I, II, and III of the Indictment.

" In so striking Count IV, we have reference only to the facts as they have been presented in this case and express no opinion as to whether in all cases and under all factual developments the charge of conspiracy should be disregarded. Such determination should depend upon the proof adduced in each case. (Footnote 1: See also a decision of a joint meeting of the Tribunals on the question of conspiracy to commit War Crimes and Crimes against Humanity viewed as a separate offence, reported in Vol. VI of these Reports, pp. 5-6 and 104-10)

" In this connection we desire to advert to the last paragraph of Section 2, Article II, Control Council Law No. 10, viz., ‘ or (f) with reference to paragraph 1 (a) if he held a high political, civil, or military (including General Staff) position . . . or held high position in the financial, industrial or economic life ’ in Germany, such person would be guilty under paragraph 1 (a) defining Crimes against Peace. (Footnote 2: For the complete text of Article 11 (2), see p. 60)

" The prosecution does not undertake to fix liability upon this basis and we need not notice it further than to observe that we may draw from any known facts such inferences as we deem they warrant."

(iv) Count I of the Indictment-Aggressive War : Finding of Not Guilty

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The Tribunal pointed out that : " Count I of the Indictment, heretofore set out, charges the defendants with Crimes against Peace." The Judgment in dealing with this count, continues as follows :

 " Before seeking to determine the law applicable it is necessary to determine with certainty the action which the defendants are alleged to have taken that constitutes the crime. As a preliminary to that we deem it necessary to give a brief consideration to the nature and characteristics of war. We need not attempt a definition that is all inclusive and all exclusive. It is sufficient to say that war is the exerting of violence by one state or politically organized body against another. In other words, it is the implementation of a political policy by means of violence. Wars are contests by force between political units but the policy that brings about their initiation is made and the actual waging of them is done by individuals. What we have said thus far is equally as applicable to a just as to an unjust war, to the initiation of an aggressive and, therefore, criminal war as to the waging of defensive and, therefore, legitimate war against criminal aggression. The point we stress is that war activity is the implementation of a predetermined national policy.

" Likewise, an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or a sense of the futility of resistance in the face of superior force, adopts a policy of non-resistance and thus prevents the occurrence of any actual combat. 

" In the light of this general characterization and definition of war and invasions we now consider the charge contained in the Indictment. The essence of the charge is participation in the initiation of aggressive invasions and in the planning, preparation and waging of aggressive wars. The remaining parts of paragraph 1 are merely a statement of particular actions which are sufficient to constitute a commission of the crime charged. Paragraph 2 charges that the defendants were principals, or accessories to, or were in other ways involved in, the commission of the previously charged Crimes against Peace. These are charges as to the nature of their relationship to the crime otherwise charged in the Indictment, and add no new element to the criminality charged in paragraph 1. The reference in paragraph 2 to the high military positions formerly held by the defendants has relevance in the Indictment and in the law (Control Council Law No. 10, Art. II, Sec. 2), not to show or charge additional Crimes against Peace, but to show what persons may be included and what persons may not be excluded from being charged and convicted of the offence set forth in Sec. la.

" The prosecution does not seek, or contend that the law authorizes, a conviction of the defendants simply by reason of their positions as shown by the evidence, but it contends only that such positions may be considered by the Tribunal with all other evidence in the case for such light as they may  shed on the personal guilt or innocence of the individual defendants. The  prosecution does contend, and we think the contention sound, that the defendants are not relieved of responsibility for action which would be criminal in one who held no military position, simply by reason of their military positions. This is the clear holding of the Judgment of the IMT,  and is so provided in Control Council Law No. 10, Art. II, Sec. 4a. 

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" The initiation of war or an invasion is a unilateral operation. When war is formally declared or the first shot is fired the initiation of the war has ended and from then on there is a waging of war between the two adversaries. Whether a war be lawful, or aggressive and therefore unlawful under International Law, is and can be determined only from a consideration of the factors that entered into its initiation. In the intent and purpose for which it is planned, prepared, initiated and waged is to be found its lawfulness or unlawfulness.

" As we have pointed out, war whether it be lawful or unlawful is the implementation of a national policy. If the policy under which it is initiated is criminal in its intent and purpose it is so because the individuals at the policy-making level had a criminal intent and purpose in determining the policy. If war is the means by which the criminal objective is to be attained then the waging of the war is but an implementation of the policy, and the criminality which attaches to the waging of an aggressive war should be confined to those who participate in it at the policy level.

" This does not mean that the Tribunal subscribes to the contention made in this trial that since Hitler was the Dictator of the Third Reich and that he was supreme in both the civil and military fields he alone must bear criminal responsibility for political and military policies. No matter how absolute his authority, Hitler alone could not formulate a policy of aggressive war and alone implement that policy by preparing, planning, and waging such a war. Somewhere between the Dictator and Supreme Commander of the Military Forces of the nation and the common soldier is the boundary between the criminal and the excusable participation in the waging of an aggressive war by an individual engaged in it. Control Council Law No. 10 does not definitely draw such a line. It points out in Sec. 2 of Article II certain fact situations and established relations that are or may be sufficient to constitute guilt and sets forth certain categories of activity that do not establish immunity from criminality. Since there has been no other prosecution under Control Council Law No. 10 with defendants in the same category as those in this case, no such definite line has been judicially drawn. This Tribunal is not required to fix a general rule but only to determine the guilt or innocence of the present defendants.

" The Judgment of the IMT held that (page 48) :

‘ The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in 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.’

" We hold that Control Council Law No. 10 likewise is but an expression of International Law existing at the time of its creation. We cannot therefore construe it as extending the International Common Law as it existed at the time of the Charter to add thereto any new element of criminality, for so to do would give it an ex post facto effect which we do not construe it to have intended. Moreover, that this was not intended is indicated by the fact that the London Charter of 10th August, 1945, is made an integral part of the Control Council Law.

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" Since International Common Law grows out of the common reactions and the composite thinking with respect to recurring situations by the various states composing the family of nations, it is pertinent to consider the general attitude of the citizens of states with respect to their military commanders and their obligations when their nations plan, prepare for and initiate or engage in war.

" While it is undoubtedly true that International Common Law in case of conflict with State Law takes precedence over it and while it is equally true that absolute unanimity among all the states in the family of nations is not required to bring an International Common Law into being, it is scarcely a tenable proposition that International Common Law will run counter to the consensus within any considerable number of nations.

" Furthermore, we must not confuse idealistic objectives with realities. The world has not arrived at a state of civilization such that it can dispense with fleets, armies, and air forces, nor has it arrived at a point where it can safely outlaw war under any and all circumstances and situations. Inasmuch as all war cannot be considered outlawed then armed forces are lawful instrumentalities of state, which have internationally legitimate functions. An unlawful war of aggression connotes of necessity a lawful war of defence against aggression. There is no general criterion under International Common Law for determining the extent to which a nation may arm and prepare for war. As long as there is no aggressive intent, there is no evil inherent in a nation making itself militarily strong. An example is Switzerland which for her geographical extent, her population and resources is proportionally stronger militarily than many nations of the world. She uses her military strength to implement a national policy that seeks peace and to maintain her borders against aggression. .

" There have been nations that have initiated and waged aggressive wars through long periods of history ; doubtless there are nations still disposed to do so ; and if not, judging in the light of history, there may be nations which to-morrow will be disposed so to do. Furthermore, situations may arise in which the question whether the war is or is not aggressive is doubtful and uncertain. We may safely assume that the general and considered opinions of the people within states-the source from which International Common Law springs-are not such as to hamper or render them impotent to do the things they deem necessary for their national protection. 

" We are of the opinion that as in ordinary criminal cases, so in the crime denominated aggressive war, the same elements must all be present to constitute criminality. There first must be actual knowledge that an aggressive war is intended and that if launched it will be an aggressive war. But mere knowledge is not sufficient to make participation even by high-ranking military officers in the war criminal. It requires in addition that the possessor of such knowledge, after he acquires it shall be in a position to shape or influence the policy that brings about its initiation or its continuance after initiation, either by furthering, or by hindering or preventing it. If he then does the former, he becomes criminally responsible ; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy.

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" If a defendant did not know that the planning and preparation for invasions and wars in which he was involved were concrete plans and preparations for aggressive wars and for wars otherwise in violation of international laws and treaties, then he cannot be guilty of an offence. If, however, after the policy to initiate and wage aggressive wars was formulated, a defendant came into possession of knowledge that the invasions and wars to be waged were aggressive and unlawful, then he will be criminally responsible if he, being on the policy level, could have influenced such policy and failed to do so.

" If and as long as a member of the armed forces does not participate in the preparation, planning, initiating or waging of aggressive war on a policy level, his war activities do not fall under the definition of Crimes against Peace. It is not a person’s rank or status, but his power to shape or influence the policy of his State, which is the relevant issue for determining his criminality under the charge of Crimes against Peace.

" International Law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war. But we do not find that, at the present stage of development, International Law declares as criminals those below that level who, in the execution of this war policy, act as the instruments of the policy makers. Anybody who is on the policy level and participates in the war policy is liable to punishment. But those under them cannot be punished for the crimes of others. The misdeed of the policy makers is all the greater in as much as they use the great mass of the soldiers and officers to carry out an international crime ; however, the individual soldier or officer below the policy level is but the policy makers’ instrument, finding himself, as he does, under the rigid discipline which is necessary for and peculiar to military organization.

" We do not hesitate to state that it would have been eminently desirable had the Commanders of the German Armed Forces refused to implement the policy of the Third Reich by means of aggressive war. It would have been creditable to them not to contribute to the cataclysmic catastrophe. This would have been the honourable and righteous thing to do ; it would have been in the interest of their State. Had they done so they would have served their fatherland and humanity also. But however much their failure is morally reprimandable, we are of the opinion and hold that International Common Law, at the time they so acted, had not developed to the point of making the participation of military officers below the policy-making or policy-influencing level into a criminal offence in and of itself. 

" International Law operates as a restriction and limitation on the sovereignty of nations. It may also limit the obligations which individuals owe to their states, and create for them international obligations which are binding upon them to an extent that they must be carried out even if to do so violates a positive law or directive of state. But the limitation which International Common Law imposes on national sovereignty, or on individual obligations, is a limitation self-imposed or imposed by the composite thinking in the international community, for it is by such democratic processes that Common Law comes into being. If there is no generality of opinion among the nations of the world as to a particular

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restriction on national sovereignty or on the obligations of individuals toward their own state, then there is no International Common Law on such matter.

" By the Kellogg-Briand Pact the sixty-three signatory nations including Germany, renounced war as an instrument of National Policy. If this, as we believe it is, is evidence of a sufficient crystallization of world opinion to authorize a judicial finding that there exist Crimes against Peace under International Common Law, we cannot find that law to extend further than such evidence indicates. The nations that entered into the Kellogg-Briand Pact considered it imperative that existing international relationships should not be changed by force. In the preamble they state that they are : 

‘ . . . persuaded that the time has come when . . . all changes in their relationships with one another should be sought only by pacific means.’

" This is a declaration that from that time forward each of the signatory nations should be deemed to possess and to have the right to exercise all the privileges and powers of a sovereign nation within the limitations of International Law, free from all interference by force on the part of any other nation. As a corollary to this, the changing or attempting to change the international relationships by force of arms is an act of aggression and if the aggression results in war, the war is an aggressive war. It is, therefore, aggressive war that is renounced by the pact. It is aggressive war that is criminal under International Law.

" The crime denounced by the law is the use of war as an instrument of national policy. Those who commit the crime are those who participate at the policy-making level in planning, preparing, or in initiating war. After war is initiated, and is being waged, the policy question then involved becomes one of extending, continuing or discontinuing the war. The crime at this stage likewise must be committed at the policy-making level. 

" The making of a national policy is essentially political, though it may require, and of necessity does require, if war is to be one element of that policy, a consideration of matters military as well as matters political. 

" It is self evident that national policies are made by men. When men make a policy that is criminal under International Law, they are criminally responsible for so doing. This is the logical and inescapable conclusion.

" The acts of Commanders and Staff Officers below the policy level, in planning campaigns, preparing means for carrying them out, moving against a country on orders and fighting a war after it has been instituted, do not constitute the planning, preparation, initiation and waging of war or the initiation of invasion that International Law denounces as criminal.

" Under the record we find the defendants were not on the policy level, and are not guilty under Count I of the Indictment. With crimes charged to have been committed by them in the manner in which they behaved in the waging of war, we deal in other parts of this Judgment.".

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(v) Responsibility of the Wehrmacht for War Crimes

The Tribunal pointed out that war crimes had been committed by the Wehrmacht (Footnote 1: See pp. 16-19) which were " deliberate, gross and continued violations of the customs and usages of war as well as of the Hague Regulations (1907) and the Geneva Convention (1929) and of the International Common Law." (Footnote 2: This material appears under a section headed War Crimes and Crimes against Humanity, but the Tribunal did not in fact deal with the law relating to crimes against humanity. In dealing with the responsibility of Warlimont, however, the Tribunal characterized as a crime against humanity, as well as a breach of the Geneva Convention, the plan of the leaders of the German Reich to inspire the German population to murder Allied airmen.) The Tribunal also adopted a finding by the International Military Tribunal that certain stated offences committed by the German Army against civilians were violations of laws of war. (Footnote 3: see pp. 19-23) The Judgment then stated that, " The connection of the defendants with these offences is disposed of in our discussion of the individual cases."

(vi) The Plea of Superior Orders (Footnote 4: See also Vol. V of these Reports, pp. 13-22, Vol. VII, p. 65, Vol. VIII, pp. 90-2, and Vol. X, pp. 174-6)

The Tribunal dealt with this plea as follows :

"Control Council Law No. 10, Art. II, Sets. 4 (a) and 4 (b), provides :

‘ 4 (a) The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.

(b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.’

These two paragraphs are clear and definite. They relate to the crimes defined in Control Council Law No. 10, Art. II, Sets. 1 (a), 1 (b), and 1 (c). All of the defendants in this case held official positions in the armed forces of the Third Reich. Hitler from 1938 on was Commander-in-Chief of the Armed Forces and was the Supreme Civil and Military Authority in the Third Reich, whose personal decrees had the force and effect of law. Under such circumstances to recognize as a defence to the crimes set forth in Control Council Law No. 10 that a defendant acted pursuant to the order of his government or of a superior would be in practical effect to say that all the guilt charged in the Indictment was the guilt of Hitler alone because he alone possessed the law-making power of the State and the supreme authority to issue civil and military directives. To recognize such a contention would be to recognize an absurdity.

" It is not necessary to support the provision of Control Council Law No. 10, Art. II, Sets. 4 (a) and (b), by reason, for we are bound by it as one of the basic authorities under which we function as a Judicial Tribunal. Reason is not lacking.

" Inasmuch as one of the reiterated arguments advanced is the injustice of even charging these defendants with being guilty of the crimes set forth in

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the Indictment, when they were, it is said, merely soldiers and acted under governmental directives and superior orders which they were bound to obey, we shall briefly note what we consider sound reasons for the rejection of such a defence.

" The rejection of the defence of superior orders without its being incorporated in Control Council Law No. 10 that such defence shall not exculpate would follow of necessity from our holding that the acts set forth in Control Council Law No. 10 are criminal not because they are therein set forth as crimes but because they then were crimes under International Common Law. International Common Law must be superior to and, where it conflicts with, take precedence over National Law or directives issued by any national governmental authority. A directive to violate International Criminal Common Law is therefore void and can afford no protection to one who violates such law in reliance on such a directive. 

" The purpose and effect of all law, national or international, is to restrict or channelize the action of the citizen or subject. International Law has for its purpose and effect the restricting and channelizing of the action of nations. Since nations are corporate entities, a composite of a multitude of human beings, and since a nation can plan and act only through its agents and representatives, there can be no effective restriction or channelizing of national action except through control of the agents and representatives of the nation, who form its policies and carry them out in action. 

" The State being but an inanimate corporate entity or concept, it cannot as such make plans, determine policies, exercise judgment, experience fear or be restrained or deterred from action except through its animate agents and representatives. It would be an utter disregard of reality and but legal shadow-boxing to say that only the State, the inanimate entity, can have guilt, and that no guilt can be attributed to its animate agents who devise and execute its policies. Nor can it be permitted even in a dictatorship that the dictator, absolute though he may be, shall be the scapegoat on whom the sins of all his governmental and military subordinates are wished ; and that, when he is driven into a bunker and presumably destroyed, all the sins and guilt of his subordinates shall be considered to have been destroyed with him.

" The defendants in this case who received obviously criminal orders were placed in a difficult position but servile compliance with orders clearly criminal for fear of some disadvantage or punishment not immediately . threatened cannot be recognized as a defence. To establish the defence of coercion or necessity in the face of danger there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the  right and refrain from the wrong. No such situation has been shown in this case.  

" Furthermore, it is not a new concept that superior orders are no defence for criminal action. Article 47 of the German Military Penal Code, adopted in 1872, was as follows :

‘ If through the execution of an order pertaining to the service, a penal law is violated, then the superior giving the order is alone

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responsible. However, the obeying subordinate shall be punished as accomplice (Teilnehmer) :

(1) if he went beyond the order given to him, or
‘ (2) if he knew that the order of the superior concerned an act which aimed at a civil or military crime or offence.’

The amendment of this in 1940 omitted the last two words " to him " in Section 1 above and in Section 2 changed the words, " civil or military crime or offence," to " general or military crime or offence." If this amendment had any effect, it extended rather than restricted the scope of the preceding act.

" It is interesting to note that an article by Goebbels, the Reich Propaganda Minister, which appeared in the Voelkischer Beobachter, the official Nazi publication, on 28th May, 1944, contained the following correct statement of the law :

‘ It is not provided in any military law that a soldier in the case of a despicable crime is exempt from punishment because he passes the responsibility to his superior, especially if the orders of the latter are in evident contradiction to all human morality and every international usage of warfare.’ 

" Turning to the specific problem of responsibility for passing on illegal orders, the Tribunal said :

" It is urged that a commander becomes responsible for the transmittal in any manner whatsoever of a criminal order. Such a conclusion this Tribunal considers too far reaching. The transmittal through the chain of command constitutes an implementation of an order. Such orders carry the authoritative weight of the superior who issues them and of the subordinate commanders who pass them on for compliance. The mere intermediate administrative function of transmitting an order directed by a superior authority to subordinate units, however, is not considered to amount to such implementation by the commander through whose headquarters such orders pass. Such transmittal is a routine function which in many instances would be handled by the staff of the commander without being called to his attention. The commander is not in a position to screen orders to transmitted. His headquarters, as an implementing agency, has been by-passed by the superior command.

" Furthermore, a distinction must be drawn as to the nature of a criminal order itself. Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are issued to be carried out. Its discipline is built upon this principle. Without it, no army can be effective and it is certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the State which he serves and which are issued to him are in conformity with International Law.

" Many of the defendants here were field commanders and were charged with heavy responsibilities in active combat. Their legal facilities were limited. They were soldiers-not lawyers. Military commanders in the

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Stuart.Stein@uwe.ac.uk
Last Updated 11/09/01 09:25:46
S D Stein
 
Faculty of Economics and Social Science