. NMT04-T0458
Volume IV · Page 458
| an arbitrary exercise of power of the victorious nations but the expression of international law existing at the time of its creation. Control Council Law No. 10 is but the codification and systemization of already existing legal principles, rules, and customs. Under the title of crimes against humanity, these rules and customs are the common heritage of civilized peoples, and, insofar as war crimes are concerned, they have been recognized in various international conventions, to which Germany was a party, and they have been international law for decades if not centuries. As far back as 1631, Grotius, in his De Jure Belli ac Pacis, wrote — |
"But * * * far must we be from admitting the conceit of some, that the Obligation of all Right ceases in war; nor when undertaken ought it to be carried on beyond the Bounds of Justice and Fidelity." |
| The German author Schaetzel, in his book "Bestrafungen nach Kriegsgebrauch", published in 1920, stated — |
" * * * The Laws and Customs of Warfare are law not because they are reproduced in the field manual but because they are international law. The Imperial Decree (of 1899) speaks of punishment `in accordance with the laws, the customs of war and special decrees of competent military authorities' (Art. 2). This shows clearly that the customs of war are recognized as a source of law. They are binding on individuals by virtue of the Imperial Decree which orders the authorities administering justice to follow these rules. |
| Defense counsel have particularly thrust at Control Council Law No. 10 with Latin maxim nullun crimen sine lege, nulla poena sine lege. It is indeed fundamental in every system of civilized jurisprudence that no one may be punished for an act which was not prohibited at the time of its commission. But it must be understood that the "lex" referred to is not restricted to statutory law. Law does, in fact, come into being as the result of formal written enactment and thus we have codes, treaties, conventions, and the like, but it may also develop effectively through custom and usage and through the application of common law. The latter methods are no less binding than the former. The International Military Tribunal, in its decision of 30 September 1946, declared -- |
"International Law is not the product of an international legislature * * *. This law is not static, but by continual adaptation follows the needs of a changing world." |
| Of course some fields of international law have been codified to a substantial degree and one such subject is the law of land warfare which includes the law of belligerent occupation because |
