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

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Law Reports of Trial of War Criminals, Volume III, English Edition LAW REPORTS OF TRIALS OF WAR CRIMINALS Selected and prepared by THE UNITED NATIONS WAR CRIMES COMMISSION ENGLISH EDITION VOLUME III LONDON PUBLISHED FOR THE UNITED NATIONS WAR CRIMES COMMISSION BY HIS MAJESTY'S STATIONERY OFFICE 194 8 PI'icc 55. od. net Ojicial Publications on THE TRIAL OF GERMAN MAJOR WAR CRIMINALS AT NUREMBERG JUDGMENT Judgment of the International Military Tribunal for the Trial of German Major War Criminals: September 30 and October 1, 1946 (Cmd. 6964) 2s. 6d. (2s. 8d.) I I SPEECHES I Opening speeches of the Chief Prosecutors 2s. 6d. (2s. 9d.) Speeches of the Chief Prosecutors at the Close of the Case against the Individual Defendants 3s. (3s. 4d.) Speeches of the Prosecutors at the Close of the Case against the Indicted Organisations 2s. 6d. (2s. 9d.) PRICES IN BRACKETS INCLUDE POSTAGE CONTINUED ON PAGE iii OF COVER ,I ,I LAW REPORTS OF TRIALS OF WAR CRIMINALS Selected and prepared by the UNITED NATIONS WAR CRIMES COMMISSION Volume III pR.Q9:E.RTY OF U. S. A~I!N( T , ." ~~%~ \.UIJlMRY LONDON: PUBLISHED FOR THE UNITED NATIONS WAR CRIMES COMMISSION BY HIS MAJESTY'S STATIONERY OFFICE 1948 CONTENTS PAGE FOREWORD BY THE RT. HON. THE LORD WRIGHT OF DURLEY - ix 'THE CASES: 11. TRIAL OF KRIMINALASSISTENT KARL-HANS HERMANN KLINGE Eidsivating Lagmannsrett and the Supreme Court of Norway, 8th December, 1945, and 27th February, 1946 1 A. OUTLINE OF THE PROCEEDINGS 1. THE HISTORY OF THE CASE 1 2. COMPOSITION OF THE SUPREME COURT 2 3. THE CASE FOR THE DEFENCE 2 4. THE JUDGMENT OF THE COURT .. 2 (i) Judge Skau .. 3 (ii) Judge Holmboe 6 (iii) Judge Bonnevie - 10 (iv) Judge Schjelderup 10 (v) Judge Larssen 10 (vi) Judge Alten .. 11 (vii) Remaining Judgments 11 B. NOTES ON THE CASE 1. Tho OFFENCE ALLEGED .. 12 2. THE QUESTION OF THE RETROACTIVE APPLICATION OF THE DECREE OF 4TH MAY, 1945 ., 13 3. THE DEFENCE THAT THE DEATH SENTENCE WAS NOT JUSTIFIED EVEN ACCORDING TO THE PROVISIONAL DECREE 14 12. TRIAL OF KRIMINALSEKRETAR RICHARD WILHELM HERMANN BRUNS AND TWO OTHERS Eidsivating Lagmannsrett and the Supreme Court of Norway 20th March and 3rd July, 1946 15 A. OUTLINE OF THE PROCEEDINGS 1. THE INDICTMENT .• 15 2. THE EVIDENCE PROvED BEFORE THE LAGMANNSRETT 16 3. THE DECISION OF THE LAGMANNSRETT .. 16 4. THE APPEAL TO THE SUPREME COURT .. 19 5. THE DECISION OF THE SUPREME COURT 19 iii iv CCNfENTS PAGE B. NOTES ON THE CASE 1. 'THE OFFENCES ALLEGED . 20 2. THE LEGAL STATUS OF THE NORWEGIAN UNDERGROUND MILITARY ORGANISATION AND THE QUESTION OF REPRISALS 21 3. THE LEGALITY OF SHOOTING A PRISONER WlllLE TRYING TO EsCAPE ., 22 4. SUPERIOR ORDERS AND DURESS.. 22 13. TRIAL OF ROBERT WAGNER AND SIX OTHERS French Permanent Military Tribunal, Strasbourg and Court of Appeal 23rd April-3rd May and 24th July, 1946 23 A. OUTLINE' OF THE PROCEEDINGS 1. THE COURT 23 2. THE ACCUSED 24 3. THE INDICTMENT 24 (i) Position and Powers of the Accused 24 (ii) Nature of the Offel,1ces Charged 27 I. RECRUITMENT OF FRENCH NAtIONALS FOR THE GERMAN ARMY .. 27 (a) The Recruitment of Volunteers. 27 (b) Military Conscription 2& II. MURDER AND COMPLICITY IN MURDER 30 (a) Judicial Murders .. 30 (b) The Murder of four Allied Airmen 32 (c) Murders Committed in Prisons and Concentra­ tion Camps 33 III. OFFENCES COMMITTED AGAINST THE LIBERTY OF THE INDIVIDUAL 34 (i) Compulsory Labour Service 34 (ii) Expulsion from Alsace 34 (iii) Deportation to Germany. 34 4. THE EVIDENCE BEFORE THE COURT 35 5. PLEAS OF THE DEFENCE .. 36 (i) Plea to the Jurisdiction of the Court 36 , (ii) Plea Relating to the Status of Alsace 36 (iii) The Plea of Superior Orders 3& (iv) The Challenge of Wagner's Counsel to the legality of applying the Ordinance of 28th August, 1944 3& 6. PROGRESS OF THE TRIAL •. 3& CONTENTS v PAGE A. OUTLINE OF THE PROCEEDINGS-continued 7. THE QUESTIONS EXAMINED BY THE TRIBUNAL AND THE VERDICT 40 8. THE SENTENCE 42 9. RECOURSE TO AND DECISIONS OF THE COURT OF ApPEAL (Cour de Cassation) 42 . (i) The Composition of the Military Tribunal 42 (ii) Four Pleas Based upon Alleged Infringements of the Procedural Rights of the Accused 43 (iii) The Alleged Retroactive Application of the Ordinance of 28th August, 1944 44 (iv) The Status of Alsace 45 (v) A Plea Based ori the Fact that the Judges were not asked whether the Acts charged were Justified by the Laws and Customs of War 45 (vi) Five Pleas .relating to the Application of Provisions of French Law regarding Enrolments on Behalf of an Enemy Power, and relating to Superior Orders 46 (vii) The Jurisdiction of the Military Tribunal 47 (viii) The General Outcome of the Appeal 49 B. NOTES ON THE CASE 1. THE LEGAL BASIS OF THE TRIBUNAL AND ITS JURISDICTION. 49 2. PRISONERS OF WAR RIGHTS NOT GRANTED TO PERSONS ACCUSED OF WAR CRIMES 50 3. THE CHARGES AGAINST THE ACCUSED 50 4. THE DEFENCE OF SUPERIOR ORDERS 54 14. TRIAL OF GUNTHER THIELE AND GEORG STEINERT United States Military Commission, Augsburg, Germany 13th June, 1945 56 A. OUTLINE OF THE PROCEEDINGS B. NOrES ON THE CASE 1. THE LEGAL BASIS OF THE COMMISSION .. 56 .2. CONFIRMATION OF SENTENCES ., 57 ~\ 3. THE .LEGAL NATURE OF THE OFFENCE .. ~5J / - )' 4. THE DEFENCE OF SUPERIOR ORDERS ~. 5. THE DEFENCE OF MILITARY NECESSITY 58 vi CONTENTS PAGE 15. TRIAL OF PETER BACK United States Military Commission, Ahrweiler, Germany 16th June, 1945 60 A. OUTLINE OF THE· PROCEEDINGS B. NOTES ON THE CASE 1. LEGAL BASIS OF THE COMMISSION 60 2. THE NATURE OF THE OFFENCE 60 3. MADNESS AS A DEFENCE .. 61 16. TRIAL OF ALBERT BURY AND WILHELM HAFNER United States Military Commission, Freising, Germany . 15th July, 1945 62 A. OUTLINE OF THE PROCEEDINGS B. NOTES ON THE CASE 1. THE LEGAL BASIS OF THE COMMISSION .. 62 . 2. RULES OF PROCEDURE 62 3. THE NATURE OF THE OFFENCE 63.-= (64~') 4. THE DEFENCE OF SUPERIOR ORDERS \ ) "--_/­ , 17 and 18. TRIALS OF ANTON SCHOSSER AND OF JOSEF GOLDBRUNNER rAND ALFONS JACOB WILM United States Military Commissions at Dachau 14th-15th and 17th September, 1945 65 A. OUTLINE OF THE PROCEEDINGS , B. NOTES ON THE CASE 1. THE LEGAL BASIS OF THE COMMISSIONS 65 2. THE SEVERANCE OF TRIALS 66 CONTENTS vii PAGE 19. TRIAL OF ERICH KILLINGER AND FOUR OTHERS British Military Court, Wuppertal 26th November-3rd December, 1945 67 A. OUTLINE OF THE PROCEEDINGS B. NOTES ON THE CASE 1. THE LEGAL BASIS OF THE CHARGE 67 2. DE MINIMIS NON CURAT LEX .. 70 3. THE SCOPE OF REGULATION 8 (i) OF THE ROYAL WARRANT.. 70 4. THE RELATIVE VALUE OF AFFIDAVIT EVIDENCE 71 5. STAT~MENTS MAY BE PUT IN WITHOUT PROOF OF VOLUNTARY NATURE.. 71 6. SIGNIFICANCE OF AFFIDAVIT EVIDENCE IN RELATION TO RULES OF PROCEDURE 40 (C) and 41 (A) 72 7. POSSIBILITY OF A SECOND RE-EXAMINATION OF WITNESSES 73 8. RIGHT OF COUNSEL TO CALL HIMSELF AS WITNESS 74 9. WITNESSES ALLOWED WRITTEN MEMORY AIDS 74 10. THE QUESTION OF TRANSLATIONS OF EVIDENCE' 74 20. TRIAL OF YAMAMOTO CHUSABURO British Military Court, Kuala Lumpur 30th January-1st February, 1946 76 A. OUTLINE OF THE PROCEEDINGS B. NOTES 'ON THE CASE 1. THE NATURE OF THE CRIME ALLEGED.. 76 2. THE DEFENCES OF DRUNKENNESS, SELF DEFENCE, SUPERIOR ORDERS, PROVOCATION AND ALLEGED Loss OF CIVILIAN STATUS BY THE VICTIM 77 ANNEX I.-NORWEGIAN LAW CONCERNING TRIALS OF WAR CRIMINALS 81 ANNEX H.-FRENCH LAW CONCERNING TRIALS OF WAR CRIMINALS BY MILITARY TRIBUNALS AND BY MILITARY GOVERNMENT COURTS IN THE FRENCH ZONE OF GERMANY 93 ANNEX HI.-UNITED STATES LAW AND PRACTICE CONCERNING TRIALS OF WAR CRIMINALS BY MILITARY COMMISSIONS, MILITARY GOVERNMENT COURTS AND MILITARY TRIBUNALS 103 FOREWORD This third voiume includes reports of ten cases. They are drawn from widely distant parts of the globe; the trial courts are diverse in character. consisting of National Courts and Military Courts acting under different warrants or commissions: The charges were diversified in character. ' Perhaps the most important case from the standpoint of international law is that which stands first in the volume. The prisoner was a German named Klinge. He was indicted before a Norwegian Court for torturing Norwegian civilians, and in one case so as to cause the victim'.s death., The ,trial court sentenced him to death under Articles of the Civil Criminal Code as modified by a Provisional Decree of 1945, which gave new and special powers to the Court in the 'case of war crimes, including the power to impose the death sentence where under the-relevant articles of the Civil Criminal Code imprisonment was the severest penalty. On appeal, the sentence was upheld by the Supreme Court; nine of the thirteen judges affirmed the decision of the trial judges, four dissented. The question was whether the Decree of 1945, whiGh was passed after the crime was committed and which first gave the Court power to sentence to death for the offence, had retrospec­ tive effect, notwithstanding Article 97 of the Constitution of Norway, which is in the following terms: "No law may be given retroactive effect" and Article 96 which vetoed any trial except according to Norwegian law, as follows: "No one may be convicted except according to law, or be punished except according to judicial sentence. Examination by torture must not take place." As the actual crime was covered by the specific penal prohibitions of the Norwegian Civil Criminal Code, no question of retroactive operation arose as to the conviction, but it did arise as to the sentence.
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