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Law Reports of Trial of War Criminals, Volume XIV, English Edition

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Law Reports of Trial of War Criminals, Volume XIV, English Edition LAW REPORTS OF TRIALS OF WAR CRIMINALS Selected and prepared 6y THE UNITED NATIONS WAR CRIMES COMMISSION VOLUME XIV LONDON PUBLISHED FOR THE UNITED NATIONS WAR CRIMES COMMISSION BY HIS MAJESTY'S STATIONERY OFFICE 1949 Price 55. Od. net LAW REPORTS OF TRIALS 1 OF WAR CRIMINALS SELECTED AND PREPARED BY THE UNITED NATIONS WAR CRIMES COMMISSION One of the aims of this series of Reports is to relate in summary form the course of the most important of the proceedings taken against persons accused ofcommitting war crimes during the Second World War, apart from the major war criminals tried by the Nuremberg and Tokyo International Military Tribunals, but including those tried by United States Military Tribunals at Nuremberg. Of necessity, the trials reported in these volumes are examples only, since the trials conducted before the various Allied Courts of which the Commission has had records number over 1,600. The trials selected for reporting, however, are those which are thought to be of the greatest interest legally and in which important points of municipal and international law arose and were settled. Each report, however, contains not only the outline of the proceedings in the trial under review, but also, in a separate section headed" Notes on the Case ", such comments of an explanatory nature on the" legal matters arising in that trial as it has been thought useful to include. These notes provide also, at suitable points, general summaries and analyses of the decisions of the courts on specific points of law derived primarily from a study of relevant trials already reported upon in the series. Furthermore, the volumes include, where necessary, Annexes on municipal war crimes laws, their aim being to explain the law on such matters as the legal basis and jurisdiction, composition and rules of procedure on the war crime courts of those countries before whose courts the trials reported upon in the various volumes were held. Finally, each volume includes a Foreword by Lord Wright of I Durley, Chairman of the United Nations War Crimes Commission. II continud in,hie buck CO," J ".~~~ LAW REPORTS OF TRIALS OF WAR CRIMINALS Selected and prepared by THE UNITED NATIONS WAR CRIMES COMMISSION Volume XIV PROPtRTYOI= u~ 5. ARMY THE JUDGE ADVOCATE GENERAL'S SCHOOL LIBRARY LONDON: PUBLISHED FOR THE UNITED NATIONS WAR CRIMES COMMISSION BY HIS MAJESTY'S STATIONERY OFFICE 19+9 JUL 281972 , '1.<('" "~ .. J, 1'1 _ 'P, --. ,.-­ CONTENTS PAGE FOREWORD BY THE RT. HON. THE LORD WRIGHT OF DURLEY ... IX THE CASES: 83. TRIAL OF TAKASHI SAKAI Chinese War Crimes Military Tribunal of The Ministry of National Defence, Nanking (Judgment Delivered on 29th August, 1946) A. OUTLINE OF THE PROCEEDINGS 1. FACTS AND EVIDENCE ... 1 2. THE DEFENCE OF THE ACCUSED 2 3. FINDINGS AND SENTENCES 2 B. NOTES ON THE CASE 1. JURISDICTION OF THE TRIBUNAL 3 2. JURISDICTION OVER CRIMES AGAINST PEACE 3 3. THE ACCUSED'S GUILT AS TO CRIMES AGAINST PEACE 4 4. THE ACCUSED'S GUILT AS TO WAR CRIMES AND CRIMES AGAINST HUMANITY... 7 84. TRIAL OF LOTHAR EISENTRAGER AND OTHERS United States Military Commission, Shanghai, China (3rd October, 1946-14th January, 1947) A. OUTLINE OF THE PROCEEDINGS 1. THE ACCUSED 8 2. THE CHARGE 8 3. THE EVIDENCE 10 (a) Bureau Ehrhardt, Shanghai 12 (b) Bureau Ehrhardt, Canton, and Consular General, Canton... 13 (c) Bureau Ehrhardt, Peiping, and Press Intelligence Group at Peiping 13 (d) German Information Bureau, German News Service 14 4. FINDINGS AND SENTENCES 14 B. NOTES ON THE CASE 1. PLEA TO THE JURISDICTION OF THE COURT ... 15 2. MOTION TO DISMISS THE CHARGES 16 111 A2 IV CONTENTS PAGE B. NOTES ON THE CASE-continued 3. VIOLATIONS OF THE TERMS OF SURRENDER OR OF AN ARMIS­ TICE 16 4. THE INSTRUMENT AND THE TERMS OF SURRENDER OF THE GERMAN ARMED FORCES IN 1945 ... 18 5. POST-SURRENDER HOSTILITIES OF MEMBERS OF SURRENDERED FORCES, VIEWED AS A WAR CRIME WHERE SUCH HOSTILITIES WERE COMMITTED BY ASSISTING THE FORCES OF AN ALLIED BELLIGERENT WHO HAD NOT SURRENDERED 20 6. ALL NATIONALS, NOT MERELY MEMBERS OF THE ARMED FORCES OF A SURRENDERED BELLIGERENT, ARE BOUND BY THE TERMS OF THE SURRENDER ... 21 7. DIPLOMATIC STATUS OF THE ACCUSED 22 8. WHAT CONSTITUTES" MILITARY ACTIVITIES"? 22 85. TRIAL OF DR. JOSEPH BUHLER Supreme National Tribunal of Poland (17th June-10th July, 1948) A. OUTLINE OF THE PROCEEDINGS 1. THE ACCUSED . 23 2. THE CHARGES . ·24 3. THE EVIDENCE AND FINDINGS OF THE TRIBUNAL 24 (i) Nazi Policy towards the" Government General" 24 (ii) The German New Order 25 (a) Systematic Terrorism 28 (b) Slave Labour 28 (c) Extermination of Jews 28 (d) Measures against Polish Culture and Education 29 (e) Confiscation of Public and Private Property 29 (f) Economic Exploitation 30 (iii) The Personal Responsibility of the Accused. .. 33 4. THE CASE FOR THE DEFENCE... 38 5. THE VERDICT AND SENTENCE... 39 B. NOTES ON THE CASE 1. THE COURT AND THE LEGAL BASIS OF THE TRIAL 39 2. THE NATURE OF THE OFFENCES 40 3. OCCUPATION GOVERNMENT AS A CRIMINAL ORGANISATION 40 CONTENTS v PAGE 86. TRIAL OF HANS PAUL HELMUTH LATZA AND TWO OTHERS Eidsivating Lagmannsrett (Court of Appeal) and the Supreme Court of Norway (18th February, 1947-3rd December, 1948) HEADING NOTES AND SUMMARY 49 A. OUTLINE OF THE PROCEEDINGS I. THE COURTS 50 2. THE INDICTMENT 50 3. PROGRESS OF THE TRIAL 51 4. THE POSITION OF THE ACCUSED 52 5. THE EVIDENCE BEFORE THE TRIAL COURTS .,. 52 6. JUDGMENT OF THE EIDSIVATING LAGMANNSRETT DELIVERED ON 12TH MARCH, 1947 56 7. FINDINGS AND SENTENCES BY THE LAGMANNSRElT 60 8. THE ApPEAL TO THE SUPREME COURT 60 (i) The Appeal by the Prosecution 60 (ii) The Appeal by the Accused Latza 62 9. JUDGMENT OF THE SUPREME_ COURT, DELIVERED ON 16TH SEPTEMBER, 1947 62 10. DECISION OF THE SUPREME COURT ... 66 11. RE-TRIAL BY THE EIDSIVATING LAGMANNSRETT 66 12. ADDITIONAL EVIDENCE DURING THE RE-TRIAL 66 13. SECOND JUDGMENT OF THE LAGMANNSRETT, DELIVERED ON 20TH JANUARY, 1948... 67 14. VERDICT OF THE LAGMANNSRETT, PRONOUNCED ON 20TH JANUARY, 1948 70 15. THE PROSECUTION'S SECOND ApPEAL TO THE SUPREME COURT 70 16. ADDmoNAL DOCUMENTARY EVIDENCE BEFORE THE SUPREME COURT ON CERTAIN QUESTIONS OF LAW... 73 (a) Exchange of Minutes relating to Regulations and Practice during the Boer War 74 (b) Exchange of Minutes Relating to Regulations and Practice in the British Zone of Germany ... 77 17. FINAL JUDGMENT OF THE SUPREME COURT, DELIVERED ON 3RD DECEMBER, 1948 80 18. FINAL DECISION BY THE SUP~ME COURT 83 B. 'NOTES ON THE CASE .... 83 VI CONTENTS PAGE .87. TRIAL OF JOSEF HANGOBL General Military Court, Dachau, Germany (17th-18th October, 1945) A. OUTLINE OF THE PROCEEDINGS 86 B. NOTES ON THE CASE I. THE STATUS OF THE ACCUSED 86 2. THE STATUS OF THE VICTIM ... 88 88. TRIAL OF HANS ALBIN HAUTER Netherlands Special Court in 's-Gravenhage (The Hague) (Judgment delivered on 4th May, 1948) and Netherlands Special Court of Cassation. (Judgment delivered on 12th January, 1949) A. OUTLINE OF THE PROCEEDINGS I. INTRODUCTORY NOTES ... 89 II. PROCEEDINGS OF THE FIRST COURT I. The Indictment 90 2. The Facts and Evidence ... 92 (i) Position of the Accused 92 (ii) Persecution of the Jews 93 (iii) Slave Labour 95 (iv) Deportation of Students 98 (v) Pillage and Confiscation of Property 98 (vi) Persecution of Relatives ... 100 (vii) Imposition of Collective Penalties 101 (viii) Measures undertaken in "Reprisals" (Indis­ criminate Arrests and Detentions, Killing of Hostages) 102 3. The Defence 106 4. Findings and Sentence 107 III. PROCEEDINGS OF THE SPECIAL COURT OF CASSATION 107 1. The Accused's Appeal 107 (i) Jurisdiction of Netherlands Courts 107 (ii) Right to Reprisals... 107 (iii) Wrongful Application of Rules of Substantive and Procedural Law 108 (iv) Wrongful Imposition of Penalty... 108 2. Findings and Sentence 109 B. NOTES ON THE CASE I. THE .COURTS I II CONTENTS vii PAGE B. NOTES ON THE CASE-continued 2. THE JURISDICTION OF NETHERLANDS COURTS OVERWAR CRIMES 112 (i) Jurisdiction under Art. 27 (A) of Extraordinary Penal Law Decree '" 112 (ii) Findings of the Courts... 113 3. THE PRISONERS OF WAR CONVENTION, 1929, AND THE TRIAL OF WAR CRIMINALS ... 114 4. THE RULE "NULLA POENA SINE LEGE" ... 118 5. PERMISSIBILITY OF " REPRISALS" 123 . (i) Effect of an Act of Surrender (Capitulation) 124 (ii) Right to Resistance of Inhabitants of Occupied Territory 127 (iii) Legitimate and Illegitimate Reprisals 129 89. TRIAL OF WILLY ZUEHLKE Netherlands Special Court in Amsterdam (Judgment delivered on 3rd August, 1948) and Netherlands Special Court of Cassation (Judgment delivered on 6th December, 1948) A. OUTLINE OF THE PROCEEDINGS I. PROCEEDINGS BEFORE THE FIRST COURT 139 1. The Charges 139 2. Facts and Evidence 140 3. The case for the Prosecution 140 4. The Defence 141 5. Findings and Sentence 141 II. PROCEEDINGS BEFORE THE SPECIAL COURT OF CASSATION 142 1. Appeal of the Prosecution 142 2. The Accused's Appeal 142 3. The Court's Findings and Sentence 142 B. NOTES ON THE CASE 1. CRIMINAL NATURE OF VIOLATIONS OF THE LAWS OF WAR AND ITS LEGAL BASIS 143 2. ILLEGAL DETENTION A CRIME AGAINST HUMANITY 145 3. DENIAL OF SPIRITUAL ASSISTANCE A CRIMINAL OFFENCE... 145 4. PLEA OF SUPERIOR ORDERS IN NETHERLANDS LAW 146 ANNEX: CHINESE LAW CONCERNING TRIALS OF WAR CRIMINALS 152 FOREWORD This was intended to be the last Volume actually containing Law Reports, since the time is approaching when the Commission must finally wind up its operations. Under the circumstances, however, a difficulty has arisen in reference to an important trial, the last of the series of Subsequent Pro­ ceedings at Nuremberg, known as the Weizsaecker or Foreign Ministry case.
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