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Home , Judgment at Nuremberg, League of Nations, Nuremberg trials

University of Baltimore Forum Volume 8 Article 18 Number 2 February, 1978

2-1978 Trials and Mary Jean Lopardo

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Recommended Citation Lopardo, Mary Jean (1978) " and International Law," University of Baltimore Law Forum: Vol. 8 : No. 2 , Article 18. Available at: http://scholarworks.law.ubalt.edu/lf/vol8/iss2/18

This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. proscribed penalties. Secondly, prohibi­ tions common to the vast majority of Nuremberg Trials And penal codes employed in civilized States were utilized. Thirdly, these sources were International Law supplemented by customary or common international legal concepts governing humanitarian views of warfare. by Mary Jean Lopardo In essence, the Charter of the Interna­ tional Military Tribunal and the ensuing The outcome of the Nuremberg trials of the Tribunal, whether or set the revolu­ was a judgment which imposed criminal not in violation of domestic law of the country where perpetrated, tionary precedent that a violation of inter­ sanctions against specific individuals who Leaders, organizers, instigators and ac­ national legal principles can be an inter­ were held personally responsible for plan­ complices participating in the formula­ national , even when no specifiC ning and waging the Nazi of aggres­ tion or execution of a common plan or to commit any of the provisions exist precisely defining sion. This historic, judicial proceeding foregoing are responsible for all the crime and sanctions to be applied. The was conceived in , England on acts performed by any persons in ex­ International Military Tribunal greatly ex­ , 1945 when the , ecution of such plan, panded international law by its final affir­ Great Britain, and the Soviet mation that individuals could be held Union established the International Mili­ Of the twenty-two Nazi defendants, criminally responsible for their roles in tary Tribunal for the trial and punishment Schacht, von Papen and Fritzsche were the planning and waging of a war of ag­ of the Axis war criminals. These found not guilty on any counts; Hess, gression. This result of the Nuremberg four Allied powers provided a Charter Funk, Doenitz, Raeder, von Scherach, trials so impressed the United which defined the constitutional and juris­ Speer and von Neurath received prison that on , 1946 the General dictional powers of the International Mili­ terms ranging from ten years to life; Assembly affirmed a resolution offiCially tary Tribunal and the and procedures Goering, von Ribbentrop, Keitel, recognizing the principles of international it was to follow during the Nuremberg Kaltenbrunner, Rosenberg, Frank, Frick, law as enumerated by the Charter of the trials. Streicher, Saukel, JodI, Bormann and International Military Tribunal and the Between , 1945 and Oc­ Seyes-Inquart were sentenced to death by Nuremberg judgment. Thus, the judgment tober 1, 1946, twenty-two Nazi war crim­ . Although only twenty-two Nazis at Nuremberg clarified the inals were tried at Nuremberg for the were tried with but twelve sentenced to pOSition for the future that international follOWing offenses as outlined in Article 6 death, the judgment at Nuremberg exer­ law does prohibit aggressive warfare and of the Charter of the International Military cised a tremendous impact, not only in that a breach of this international concept Tribunal: serving as a catharsis for the world con­ science, but also in setting unprecedented can lead to serious sanctions against in­ (a) Crimes Against : namely, landmarks in international law. dividual offenders. planning, preparation, initiatiori or The Nuremberg arena should be viewed waging of a , or a war * * * in violation of international , as a milestone in the development of in­ agreements or assurances, or participa­ ternational law since there existed no The Nuremberg trials have been both tion in a common plan or conspiracy for judicial precedent for the creation of an extolled as a milestone in the develop­ the accomplishment of any of the foregoing: International Military Tribunal. Also, ment of international law and vehemently criticized as a travesty of justice. This dis­ (b) War Crimes: namely, violations of there were no legislative guidelines man­ the laws or customs of war. Such viola­ dating such action because there is no in­ crepancy of opinion in assessing the prin­ tions shall include, but not be limited ternational legislative body. The innova­ ciples of international justice espoused by to, , ill-treatment or the Nuremberg tribunal was due to the to slave labor or for any other purpose tive concepts of international law spring­ of population of or in occupied ing from the Nuremberg incident were clash between radically opposed political territory, murder or ill-treatment of derived basically from the sources govern­ traditions debated before and during the prisoners of war or persons on the seas, Nuremberg trials. killing of , plunder of public or ing all international legal principles, private property, wanton destruction of namely, written treaties, agreements and On the one hand, there existed the , or villages, or devastation conventions such as Conven­ belief that not all is fair in war and that not justified by ; tions of 1899 and 1907, the Kellogg­ there is no justification for cruelty. The (c) : namely, Briand Pact of 1928, the Prisoner ruthless torture, rapine, massacres, murder, extermination, enslavement, deportation, and other inhuman acts of War, Red Cross and Protection of enslavements and calculated executions committed against any civilian popula­ Civilian Conventions of 1929 and 1949; committed by the Nazi henchmen in their tion, before or during the war; or per­ however, all of these treaties state general quest for world dominance defied the laws secutions on political, racial or religious grounds in execution of or in principles on the rules of war and remain of legitimate warfare. The victims of Nazi connection with any crimes within the silent as to the means of enforcement and bestiality cried out for retribution and in

Ill] THE FORUM order to reestablish world law and order, static system but a progressive one, grow­ referred to as the father of international justice through law was needed to punish ing as the world grows. Thus, an accept­ law, defined just and unjust in the individual malefactors for their heinous ance of the opposition's antiquated tradition of his Catholic predecessors. crimes against humanity. The general reasoning would vitiate both reason and Grotius also declared that the only just consensus among the major Allied Powers justice. cause for war is self-defense and that the was that in order to salvage our heritage The argument encompassing customs only justification for war is to promote of justice, war criminals had to be and traditions that have been universally justice. He believed that right reason is punished to guard against future war accepted was buttressed by natural law the only basis for ascertaining the proper atrocities. philosophers dating back through the conduct of States in relation to their deal­ On the other hand, those who opposed ages. St. Augustine espoused some of the ings with other States. "The dictate of the International Military Tribunal earliest views on peace and war by dis­ right reason which points out that a given claimed that justice could not be served tinguishing between just and unjust wars. act because of its opposition to or confor­ whenever the victor tried the vanquished. "To make war on your neighbors, and mity with man's rational nature, is either The advocates of this pOSition viewed an thence to proceed to others, and through morally wrong or morally necessary, and international trial of war criminals as a mere lust of to crush and sub­ accordingly forbidden or commanded by mock-trial which would end in a blood due people who do you no harm, what God, the author of nature." Thus, in ac­ bath for seeking vengeance. else is this to be called than robbery on a cord with this mode of philisophical Aside from these intense, emotional gut grand scale?" According to Augustine, thought, the International Military Tri­ reactions lay the main issues. At bottom only wars fought in self-defense can be bunal in its final judgment at Nuremberg level, the debate centered around two ma­ considered just and no other motive is a reiterated these views by stating that wag­ jor queries: 1) whether aggressive warfare proper one for war since the ultimate aim ing an aggressive war was not only an in­ could be classified as an international of a just war is the peace which it should ternational crime, but the supreme inter­ crime and 2) whether particular in­ bring between warring States. national crime. dividuals involved in the planning and ex­ Augustine's theories were further Second, it was frequently objected that ecution of such a war could be prosecuted elaborated on by St. Thomas Acquinas in the International Military Tribunal was in for their acts? Five salient arguments his Summa Theologica. He stated three fact dispensing ex-post facto or retroac­ were advanced in affirmation and in nega­ postulates necessary for a just war: first, tive law. The rationale behind the prohibi­ tion to the above disputed questions. proper and just authority of the ruler to tion against ex-post facto justice is that First, condemnation stemmed from the wage the war, second, a just cause such as the offender is subject to arbitrary and legal standpoint that there existed no self-defense and third, that peace be the capricious sanctions which are fundamen­ judicial or legislative precedent in modern objective of the war. Acquinas also tally unjust, since he had no prior notice history for the creation of the Interna­ asserted that "custom has the force of a that his actions would be deemed criminal tional Military Tribunal. Those adamantly law, abolishes law and is the interpreter of in nature. The argument offered by the opposed to the tribunal and its Charter law. Obviously, the diabolical Fuehrer did critics was that, "(With) no World-State asserted that it was an ad hoc creation of not share such lofty ideals as he shouted, there can be no world law; and because the four victorious Allied Powers and as "I shall shrink from nothing. . . No so there is no world law, there can be no such, served as a source of new law. called international law, no agreements world crime. An act which is not a crime is Those who subscribed to the concepts will prevent me from making use of any not justifiable before a judicial tribunal." of the International Military Tribunal advantage that offers." Hugo Grotius, It was emphasized that in the absence of adhered to the ideological view that "It is a universal principle of that in cases otherwise doubtful the rule or in­ terpretation which gives the most reason­ able results (is) to be applied; and the law of nations is as much entitled to the benefit of that principle as any other kind of law." In rebuttal, it was alleged that in­ ternational law is not statutory in nature, but founded upon principles of reason and justice defined in terms of treaties and assurances, with most of its principles comprlsmg customary, unwritten rules developed over the years and accepted among civilized States. It was further stressed that international law is not a

FEBRUARY, 1978 any specific, detailed codes of interna­ Third, critics called attention to the fact cials with immunity for crimes committed tional penal law, prosecution of ag­ that charging with waging an in the name of the State. The Act of State gressive warfare as a criminal offense fell aggressive, illegal war was a deprivation dogma prohibited the punishment of in­ squarely within the ambit of ex-post facto of her right of national . Pri­ dividuals for actions committed on the justice. Republican Senator A. mary emphasis was placed on the recog­ command or approval of the State, Taft avowed this position when he nized international principle that no State because such individuals' actions were asserted, "It is completely alien to the has jurisdiction over the acts of another imputed to the State. Therefore, the op­ American tradition of law to prosecute State. This stance was propounded by all position held that responsibility for the men for criminal acts which were not who accepted the jurisprudence of legal­ actions of individuals rested upon the declared to be so until long after the fact. positivism as evinced by the philosopher, State as an entity, and not upon the in­ The Nuremberg Trials will forever remain John Austin. This school of thought main­ dividuals who were accorded the status of a blot on the escutcheon of American tained that it was inherently unjust for any 'instruments' of the State. jurisprudence. " State to subjectively assert that another This doctrine was renounced on the This contention was negated by the State had waged an unjust war of aggres­ ground that it was a fallacious premise. assertion that all those charged with war sion. "Positivism tends to assume that the The first argument advanced was that crimes had fair warning that wars of ag­ Sovereign State is the only subject of in­ historically, heads of State and officials gression, without the justification of self­ ternational law; that it is under no obliga­ had been held criminally responsible for defense, had universally been held contr­ tion except those which it has accepted by initiating and waging wars of aggression. ary to international law via treaties, valid agreement or clear acquiescence in a Two notable examples were the cases of agreements and assurances among na­ general custom; that such obligations are Frederick the Great and Napoleon tions, even though specific sanctions had to be narrowly construed under the theory Bonaparte. Frederick the Great was held not been delineated. To hold otherwise that consent to qualifications of to answer to the Imperial Crown under would render nugatory such treaties as the sovereignty cannot be assumed; and that threat of banishment for his alleged Hague Conventions of 1899 and 1907, consequently concrete obligations cannot breach of the peace by his invasion of The Kellogg-Briand Pact of 1928, and the be implied even from formal consent to Saxony. Also, Napoleon was outlawed as Geneva , Red Cross and general principles." an enemy and disturber of the peace by Protection of Civilian Conventions of This allegation was belied of its validity the Imperial Crown of France and 1929 and 1949. It was pointed out that it since the International Military Tribunal banished by decree to St. Helena. So, could hardly be unjust to punish those was not trying the State as such but only historically, heads of State had been held who waged an aggressive war in defiance individual citizens of the State. Although accountable for resorting to aggressive of such treaties and assurances to keep it was conceded that Sovereign States warfare. peace, but that it would be unjust to allow could not be subjected to foreign jurisdic­ An even more persuasive argument was such an injustice to go unpunished. tion without their consent, it was asserted that it was intrinsically unjust to punish a Particularly relied upon were the provi­ that no such prinCiple applied to in­ State as a whole for the wrongdoings of sions of the Paris-Peace Pact of 1928, dividuals and that the International Mili­ particular individuals, while allowing the more commonly referred to as the tary Tribunal exercised jurisdiction only malefactors to escape punishment due to Kellogg-Briand Pact, which bound sixty­ over German citizens and not over the an archaiC, legalistic technicality. Also, in three signatory nations, including Ger­ State of Germany. The Charter of the In­ order to be effective, sanctions must oper­ many. This Pact stated, "the High Con­ ternational Military Tribunal established ate against individuals and not States. tracting Parties solemnly declare in the its jurisdiction by reasoning that all States Thus, realistically, the Act of State names of their respective peoples that had authority to set up tribunals to try doctrine was not viable. The International they condemn recourse to war for the persons within their custody for war Military Tribunal strongly believed that solution of international disputes and re­ crimes if those crimes threatened its international law imposed duties upon in­ nounce it as an instrument of national security. Since any of the party States to dividuals, as well as upon States. policy in their relation with one another." the Charter could exercise such jurisdic­ Therefore, when crimes against interna­ Although this Pact did not specify tion on an individual basis, they could ex­ tional law are committed by individuals, penalties for violations or assign personal ercise it collectively as well. Furthermore, only their punishment can serve as a liability to violators, a strict interpretation Germany had unconditionally surren­ deterrent in the enforcement of interna­ of this document implied that waging an dered to the Allies, giving these States the tional legal principles. Article 7 of the In­ aggressive war was in express violation of right to exercise power over her provided ternational Military Tribunal so stated, its mandates and outlawed as such. Con­ they applied the basic prinCiples of justice "The official position of defendants, sequently, it was cited repeatedly to which the victor must observe toward the whether as Heads of State or responsible reaffirm the argument that aggressive war occupants of an annexed State. officials in Departments shall was a recognized criminal concept in the Fourth, opponents urged that the not be considered as freeing them from international legal system. doctrine of Act of State cloaked State offi- responsibility or mitigating punishment."

~ THE FORUM Fifth, those who condemned the order to insure future opportunities for hibited by its failure to enforce interna­ Charter of the International Military Tri­ political advancement once Germany won tional responsibilities, and the timidity of bunal claimed the doctrine of Superior the war. To permit such calculated and individual States to oppose outright ag­ Orders was a complete defense to in­ well documented depravity to evade gression, leads to the inescapable conclu­ dividual criminal responsibility; since punishment because of the technical, out­ sion that the only Viable means of deter­ those charged with war crimes were only dated doctrine of was in­ rence is the specific deSignation of ag­ acting in obedience to the orders of their herently unreasonable. An acknowledg­ gressive warfare as a criminal, punishable military superiors. By definition, the ment of the Superior Orders doctrine offense against international law. Superior Orders doctrine shielded in­ could only serve as an obstruction to dividuals from personal liability when world order and peace. As Holland, the they acted under the compulsion of a prominent twentieth century author The Revision command given by their superiors. It was stated, "Individuals offending against the insisted that a rejection of the Superior laws of war are liable to such punishment Orders doctrine would wage havoc be­ as is proscribed by the military code of the of The tween the relations of a soldier or govern­ into whose hands they may ment official to his State. Anarchy might fall, or, in default of such codes, then to Maryland result if the individual placed his duty to such punishment as may be ordered in ac­ the world community ahead of obedience cordance with the laws and usages of war, Annotated to his government and set himself up as by a military court." Accordingly, Article the judge of his obligations superior to the 8 of the Charter for the International Mili­ Code judgment of his government. tary Tribunal stated, "The fact that the This final contention was dismissed as defendant acted pursuant to order of his by Walter R. Hayes, Jr. anathema to universal standards of Government or of a superior shall not free humanitarian behavior which transcended him from responsibility, but may be con­ the duty of obedience to national laws. As sidered in mitigation of punishment if the After you safely wend your way to the St. Thomas Acquinas stated, "Man is Tribunal determines that justice so re­ sanctuary of clean air and free breathing bound to obey secular rulers to the extent quires." on the west side of our library, your gaze that the order of justice requires. lf such will no doubt fall from time to time on the * * * rulers. . command things to be done Md. Annotated Code. Next to these which are unjust, their subjects are not Individual Nazi criminals were held tomes, a new creature is breeding, shed­ obliged to obey them. .". The argu­ responsible for their actions because, ding basic black for a brighter coat of ment against the Superior Orders doctrine realistically, no good can result from the maroon. No, this is not a case of reverse was one dictated by reason. The Nazi punishment of an entire State for its con­ discrimination. What lies before you is the leaders had followed orders which were so duct during wartime. Such punishment of revised edition of the Annotated Code of barbarous and patently unlawful that they a State only sustains deep feelings of Maryland. must or should have realized that their ac­ hostility, which later may be used by a Article III, section 17 of the Md. Con­ tions violated all humanitarian concepts ruthless leader to reunite the State in stitution of 1851, required the legislature ever espoused in international treaties or seeking revenge by waging aggressive "to appoint 2 commissioners learned in developed through custom on the laws of war. This is precisely what occurred as a the law, to revise and codify the laws of warfare. Clearly, whenever the illegality repercussion of the unsound reparation this state". From this decree was born the of an individual's actions are so blatant to policies punishing Germany after World code of 1860. him, an order from a superior cannot ex­ War I. In essence, the felt the In 1886 another bulk reviSion of the culpate his guilt. Additionally, there was a was a cruel, humiliat­ code was ordered by the legislature. This large realm of freedom of choice open to ing peace and Hitler skillfully played upon code was adopted by chapter 74, Acts of the Nazi assassins; they did not obey due this national grievance in appealing to the 1888 as the "Code of public laws and to justifiable fears of severe punishment people's sympathies. code of public local laws of this state, or brutal execution. On the contrary, the The psychological effect of such grisly respectively, in lieu of and as substitute voluminous records kept by the Nazi mass extermination, impressed upon the for all public general law and public local butchers, stating with meticulous preci­ world the need to firmly resolve the issue law of this state in force on the first sion their various tortures and slaughters, of aggressive warfare by setting a prece­ Wednesday of January in the year 1888". resembled progress reports. These in­ dent cautioning future leaders that they It is this endeavor which is housed in the criminating documents were ostensibly would be able to transgress black volumes of the Annotated Code. It kept by the Nazi leaders to prove their international law by such an unholy con­ contains 101 articles, which are, accord­ loyalty to Hitler. Undoubtedly these quest. Retrospectively, the lack of ing to the revisors' manual, "arranged detailed manuscripts were preserved in strength of the , ex- alphabetically with little apparent effort

FEBRUARY,1978 @1]