 |
| to commit acts in contravention of international penal law. As custom
is a source of international law, customs and practices may change and find
such general acceptance in the community of civilized nations as to alter the
substantive content of certain of its principles. But we are unable to find
that there has been a change in the basic concept of respect for property
rights during belligerent occupation of a character to give any legal
protection to the widespread acts of plunder and spoliation committed by Nazi
Germany during the course of World War II. It must be admitted that there exist
many areas of grave uncertainty concerning the laws and customs of war, but
these uncertainties have little application to the basic principles relating to
the law of belligerent occupation set forth in the Hague Regulations. Technical
advancement in the weapons and tactics used in the actual waging of war may
have made obsolete, in some respects, or may have rendered inapplicable, some
of the provisions of the Hague Regulations having to do with the actual conduct
of hostilities and what is considered legitimate warfare. But these
uncertainties relate principally to military and naval operations proper and
the manner in which they shall be conducted. We cannot read obliterating
uncertainty into those provisions and phases of international law having to do
with the conduct of the military occupant toward inhabitants of occupied
territory in time of war, regardless of how difficult may be the legal
questions of interpretation and application to particular facts. That grave
uncertainties may exist as to the status of the law dealing with such problems
as bombings and reprisals and the like, does not lead to the conclusion that
provisions of the Hague Regulations, protecting rights of public and private
property, may be ignored. As a leading authority on international law has put
it: |
| |
“Moreover, it does not
appear that the difficulties arising out of any uncertainty as to the existing
law have a direct bearing upon those violations of the rules of war which have
provided the impetus for the almost universal insistence on the punishment of
war crimes. Acts with regard to which prosecution of individuals for war crimes
may appear improper owing to the disputed nature of the rules in question arise
largely in connection with military, naval and air operations proper. No such
reasonable degree of uncertainty exists as a rule in the matter of misdeeds
committed in the course of military occupation of enemy territory. Here the
unchallenged authority of a ruthless invader offers opportunities for crimes
the heinousness of which is not attenuated by any possible appeal to military
necessity, to the uncertainty of the law, or to the operation of reprisals."
(Lauterpacht, “The Law of Nations and The Punishment of War Crimes,”
British Year Book of International Law, |
1138 |
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