. NMT03-T1178
Volume III · Page 1178
| VIII. SEPARATE OPINION BY JUDGE BLAIR |
| OPINION OF MALLORY B. BLAIR,
JUDGE OF MILITARY TRIBUNAL III |
| I concur in the final ,judgment and verdict
filed herein, which I have signed. A difference of view has arisen, however,
with respect to certain findings and conclusions made in the judgment under the
title "Source of Authority of Control Council Law No. 10". Under this title a
lengthy and able discussion is made in the judgment concerning the effect and
meaning of the term "unconditional surrender" of Germany to the Allied Powers.
From the meaning given to the term of "unconditional surrender" of the armed
forces of the Hitler regime and the collapse of his totalitarian government in
Germany, the view is expressed that a distinction arises between measures taken
by the Allied Powers prior to the destruction of the German Government and
those taken afterwards; and that only the former may be tested by the Hague
Regulations because they relate only to a belligerent occupation. To support
this view, quotations are made from articles expressing views of certain text
writers, which articles are published in the American Journal of International
Law. The judgment then adopts the view expressed in the quoted texts, which is
admittedly contrary to the views of the equally scholarly writers whose
articles are also cited. The foregoing decision is made to depend upon a determination of the present character or status of the occupation of Germany by the Allied Powers; that is, whether or not it is a belligerent occupation. This interesting but academic discussion of the question has no possible relation to or connection with the "source of authority of Control Council Law No. 10," which is the question posed in the judgment. No authority or jurisdiction to determine the question of the present status of belligerency of the occupation of Germany has been given this Tribunal. This question of present belligerency of occupation rests solely within the jurisdiction of the military occupants and the executives of the nations which the members of the Allied Control Council represent. The determination by this Tribunal that the present occupation of Germany by the Allied Powers is not belligerent may possibly involve serious complications with respect to matters solely within the jurisdiction of the military and executive departments of the governments of the Allied Powers. |
