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Volume III · Page 979
its power. Each belligerent has, or has power to set up, pursuant to its own legislation, an appropriate tribunal, military or civil, for the trial of cases."¹ |
| According to the Treaty of Versailles,
article 228, the German Government itself "recognized the right to the Allied
and associated powers to bring before military tribunals persons accused of
offenses against the laws and customs of war. Such persons who might be found
guilty were to be sentenced to punishments ‘laid down by law’."²
Some Germans were, in fact, tried for the commission of such crimes.
The foregoing considerations demonstrate that the principle nullum crimen sine lege, when properly understood and applied, constitutes no legal or moral barrier to prosecution in the case at bar. |
| CRIMES AGAINST HUMANITY AS
VIOLATIVE OF INTERNATIONAL LAW |
| C. C. Law 10 is not limited to the punishment of persons guilty of violating the laws and customs of war in the narrow sense; furthermore, it can no longer be said that violations of the laws and customs of war are the only offenses recognized by common international law. The force of circumstance, the grim fact of world-wide interdependence, and the moral pressure of public opinion have resulted in international recognition that certain crimes against humanity committed by Nazi authority against German nationals constituted violations not alone of statute but also of common international law. We quote: |
| "If a state is unhampered in its activities
that affect the interests of any other, it is due to the circumstance that the
practice of nations has not established that the welfare of the international
society is adversely affected thereby. Hence that society has not been incited
or aroused to endeavor to impose restraints; and by its law none are imposed.
The Covenant of the League of Nations takes exact cognizance of the situation
in its reference to disputes 'which arise out of a matter which by
international law is solely within the domestic jurisdiction' of a party
thereto. It is that law which as a product of the acquiescence of states
permits the particular activity of the individual state to be deemed a domestic
one. "In as much as changing estimates are to be anticipated, and as the evolution of thought in this regard appears to be constant and is perhaps now more obvious than at any time since the United States came into being, the circumstance that at any |
¹ Hyde, op. cit., page 2412.
² Ibid., page 2414.
