. NMT04-T0459
Volume IV · Page 459
| belligerent occupation is incidental to warfare. The Hague Regulations, for instance, represent such a codification. Article 46 of those regulations provides with regard to invading and occupying armies that — |
"Family honor and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected." |
| This provision imposed obligations on Germany
not only because Germany signed the Hague Convention on Land Warfare, but
because it had become international law binding on all nations. But the jurisdiction of this Tribunal over the subject matter before it does not depend alone on this specific pronouncement of international law. As already indicated, all nations have held themselves bound to the rules or laws of war which came into being through common recognition and acknowledgment. Without exception these rules universally condemn the wanton killing of noncombatants. In the main, the defendants in this case are charged with murder. Certainly no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder. Whether any individual defendant is guilty of unlawful killing is a question which will be determined later, but it cannot be said that prior to Control Council Law No. 10, there existed no law against murder. The killing of a human being has always been a potential crime which called for explanation. The person standing with drawn dagger over a fresh corpse must, by the very nature of justice, exonerate himself. This he may well do, advancing self-defense or legal authorization for the deed, or he may establish that the perpetrator of the homicide was one other than himself. It is not questioned that the defendants were close enough to mass killings to be called upon for an explanation — and to whom are they to render explanations so that their innocence or guilt may be determined? Is the matter of some one million nonmilitary deaths to be denied judicial inquiry because a Tribunal was not standing by, waiting for the apprehension of the suspects? The specific enactments for the trial of war criminals, which have governed the Nuernberg trials, have only provided a machinery for the actual application of international law theretofore existing. In the comparatively recent Saboteurs case (Ex parte Quirin 317 U. S., 1, 1942) the Supreme Court of the United States affirmed that individual offenders against the rules and customs of war are amenable to punishment under the common law of nations without any prior designation of tribunal or procedure. In this connection reference may also be made to trials |
