Chapter 3 the Work of National Military Tribunals Under Control Council Law 10

Chapter 3 The Work of National Military Tribunals under Control Council Law 10

Jackson Maogoto

On 20 December 1945, the Allied Control Council promulgated Law No. 10 (CCL No. 10), which was to govern all further Nazi prosecutions in domestic courts. The law was the fulfilment of the vow made by the Allied Powers in the course of World War II to return war criminals so they could stand trial before tribunals in the territories in which their crimes had been committed. Many advances in enriching international jurisprudence and fleshing out the substantive content of international criminal law were made by post-World War II domestic tribunals in implementing the Nuremberg legacy. These national trials reaffirmed the triumph of international law over certain aspects of sovereignty. Literally thousands of trials were carried out in domestic tribunals in different countries and regions of the world subsequent to the Nuremberg and Tokyo international trials. CCL No. 10 was closely modelled on the Nuremberg Charter. Like the Nuremberg Charter, it abrogated the act of State doctrine and rejected superior orders as a defence. Prosecution was also not barred by any amnesty, immunity or pardon which may have been granted by the Nazi regime. It not only provided for a wide range of penalties for war crimes and crimes against humanity, but, like the Nuremberg Charter,

Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity (20 December 1945), Official Gazette of the Control Council for Germany, No 3, Berlin, 31 January 1946 (‘CCL No. 10’). See also Telford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10 (1949), Appendix A (text of the Nuremberg Charter on which CCL No. 10 was based). ‘Declaration on German Atrocities, 30 October 1943’, Documents on American Foreign Relations (1945) vol 6, 231, 232. Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity (20 December 1945), Official Gazette of the Control Council for Germany, No 3, Berlin, 31 January 1946 (‘CCL No. 10’), art 2, [4(a)]. Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity (20 December 1945), Official Gazette of the Control Council for Germany, No 3, Berlin, 31 January 1946 (‘CCL No. 10’), art 2, [4(b)]. Superior orders may be recognised in mitigation of punishment. Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity (20 December 1945), Official Gazette of the Control Council for Germany, No 3, Berlin, 31 January 1946 (‘CCL No. 10’) [5].

José Doria et al. (eds.), The Legal Regime of the ICC: Essays in Honour of Prof. I.P. Blishchenko © 2009 Koninklijke Brill NV. Printed in The Netherlands.isbn 978 90 04 16308 9. pp. 51-62. 52 Jackson Maogoto it also criminalised mere membership in certain organisations held criminal by the Nuremberg tribunal without considering individual guilt. Unlike the Nuremberg Charter, CCL No. 10 did not require that crimes against humanity be ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal.’ The law aroused almost immediate and vociferous protest by the Germans, with German jurists claiming that parts of CCL No. 10, especially the ‘crimes against humanity’ provisions, constituted ex-post facto laws prohibited by international norms, German substantive law and prior Allied laws. Nevertheless, CCL No. 10 continued to be effective until after the founding of the Federal Republic, when it was finally voided by supervening German law in 1955. The provisions of CCL No. 10 provided the basis for many Allied prosecutions of German war criminals. Most accused German war criminals, were prosecuted before courts in the countries in which they committed their catastrophic deeds or by the victorious Allied States on the basis of the physical location of the alleged crimes in territories liberated by the forces of individual Allied States. Various pros- ecutorial models were utilised. These trials while perpetuating the Nuremberg legacy also made a significant contribution to the corpus of international criminal law and enriched international jurisprudence. The tribunals relied on the universality princi- ple, among other jurisdictional bases, to prosecute war crimes, crimes against humanity, and other offences. A year after promulgation of CCL No. 10, the United Nations General Assembly, by resolution on 11 December 1946, unanimously affirmed the ‘principles of international law recognised by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal.’10 That resolution may be viewed as affirming or codifying the jurisdictional right of all States to prosecute the offences addressed by the Nuremberg International Military Tribunal. Under the authority of CCL No. 10 and buoyed by the Nuremberg precedent, many countries, notably in Continental Europe, sought to prosecute war criminals before special criminal courts that applied their existing criminal code but subse- quently modified this approach and incorporated the war crimes and crimes against humanity provisions of the Nuremberg principles into their domestic legal code. Demonstrating the unease with which States viewed the reception of international law into the domestic sphere, Continental European courts attempted, with varying degrees of success, to rely on municipal laws, sanctioning those who con- travened existing or newly enacted provisions of the domestic criminal code, which also constituted violations of the humanitarian law of war.11 Even where war crimes legislation was passed or existing penal codes amended to enable punishment of war

They were the SS, SD, Gestapo and the Political Leadership Corps. The United States v Flick Case: (1950) 6 Trials of War Criminals before the Nuernberg Military Tribunal under Control Council Law No. 10 1212–3. Michael Ratz, Die Justiz Und Die Nazis (1979) 22. Adalbert Ruckerl, Ns-Verbrechen Vor Gericht (1984) 124. 10 GA Res 95, UN GAOR, [188], UN Doc A/64/Add 1 (1946). 11 Mathew Lippman, ‘Prosecutions of Nazi War Criminals Before Post-World War II Domestic Tribunals’ (2000) 8 University of Miami International and Comparative Law Review 1, 11.