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Similar views were expressed in the case of the United States vs.
Ohlendorf (Case 9), decided by Military Tribunal II. (Cf. transcript of that
judgment, pp. 6714-16.)
The IMT, in its judgment, found it unnecessary
to decide whether, as a matter of law, the doctrine of “subjugation”
by military conquest has application to subjugation resulting from the crime of
aggressive war. The doctrine was held to be inapplicable where there are armies
in the field still seeking to restore the occupied country to its rightful
owners. The Hague Regulations do not become inapplicable because the German
Reich “annexed” or “incorporated” parts of the occupied
territory into Germany, as there were, within the holding of the IMT which we
follow here, armies in the field attempting to restore the occupied countries
to their true owners. We adopt this view. It will therefore become unnecessary,
in considering the alleged acts of spoliation in Poland and Alsace-Lorraine, to
consider this distinction which has been urged by the defense.
To the
foregoing observations interpreting the applicable law, added mention should be
made of the basic principle that no individual defendant may be held guilty of
the war crimes, or any aspect thereof, charged under count two, unless the
competent proof establishes beyond reasonable doubt that he knowingly
participated in an act of plunder or spoliation because he was either
(a) a principal, or (b) 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 an organization or group
connected with the commission of any such crime. (Art. II, par. 2, of Control
Council Law No. 10.)
One of the general defenses advanced is the
contention that private industrialists cannot be held criminally responsible
for economic measures which they carry out in occupied territories at the
direction of, or with the approval of, their government. As a corollary to this
line of argument it is asserted that the principles of international law in
existence at the time of the commission of the acts here charged do not clearly
define the limits of permissible action. It is further said that the Hague
Regulations are outmoded by the concept of total warfare; that literal
application of the laws and customs of war as codified in the Hague Regulations
is no longer possible; that the necessities of economic warfare qualify and
extinguish the old rules and must be held to justify the acts charged in
keeping with the new concept of total warfare. These contentions are unsound.
It is obvious that acceptance of these arguments would set at naught any rule
of international law and would place it within the power of each nation to be
the exclusive judge of the applicability of international law. It is beyond the
authority of any nation to authorize its citizens |
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