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ment, which Charter shall form an integral part of this Agreement.” According to Article 2 of the Charter, the International Military Tribunal was to consist of four members, each with an alternate. One member and one alternate were to be appointed by each of the signatories. According to Article 14, each signatory was to appoint a chief prosecutor for the investigation of the charges against and the prosecution of major war criminals.
Article 6 of the Charter stipulated : “The Tribunal established by the agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(A) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(B) War Crimes : namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of, or in, occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;
(C) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of, or in connection with, any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
Article 7 established individual responsibility for acts of state. It provided : “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.” Article 8 excluded the plea of superior order: "The fact that the defendant acted pursuant to order of his Government, or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."
On the basis of the London Agreement, the International Military Tribunal established by this Agreement declared in its judgment: "The principle of international law, which under certain circumstances, protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment.” As to the question of under what conditions a violation of international law was to be considered a punishable crime constituting individual responsibility, the International Military Trbunal assumed that a violation of international law might be considered such a crime even if international law did not impose a penalty for an act constituting a violation of international law. This meant that the
question of whether or not an individual might be punished for having violated international law by an act performed in his capacity as an organ of a state, was to be decided within the discretion of the authority competent to apply the international law in this case. According to the London Agreement, as interpreted by the International Military Tribunal, this authority might be a national court of one of the belligerents, or an international court established without the participation of the state whose organ had violated international law and was to be punished therefor. The principle that a state has jurisdiction over acts of another state only with the consent of the latter was no longer recognized as a rule of general international law.
In the trials of war criminals conducted by the military tribunals of the Allied and Associated Powers in connection with the second World War, the plea of superior order was raised by the defense more frequently than any other. (Of. Law Reports of Trials of War Criminals, Selected and prepared by the United Nations War Crimes Commission (1949] XV, 157 ff.) In the practice of these tribunals the test was "whether an order, illegal under international law, on which an accused had acted was or must be presumed to have been known to him to be so illegal, or was obviously so illegal (“illegal on its face' to use the term employed by the Tribunal in the High Command Trial) or should have been recognized by him as being so illegal. The general upshot of a large number of decisions, and of the advice of Judge Advocates to British or Commonwealth courts, is that, if the order comes within one or more of these categories, then the accused cannot rely upon the plea of superior orders."
In its Resolution of 21 November 1947 (177/II), the General Assembly of the United Nations directed the International Law Commission to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal.” The International Law Commission formulated these principles as follows: "I. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. II. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. III. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. V. Any person charged with a crime under international law has the right to a fair trial on the facts and law. VI. The crimes hereinafter set out are punishable as crimes under international law: a. Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). b. War crimes : Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. C. Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman
acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. VII. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity, as set forth in Principle VI is a crime under international law.” General Assembly Official Records. Fifth Session, Supplement No. 12 (A/1316)
In its sixth session the International Law Commission adopted the following Draft Code of Offences against the Peace and Security of Mankind, in which the principle of individual criminal responsibility for violations of international law is applied : (General Assembly Official Records: Ninth Session. Supplement No. 9 (A/2693] New York, 1954):
Offences against the peace and security of mankind, as defined in this code, are crimes under international law, for which the responsible individuals shall be punished.
The following acts are offences against the peace and security of mankind :
(1) Any act of aggression, including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the United Nations.
(2) Any threat by the authorities of a State to resort to an act of aggression against another State.
(3) The preparation by the authorities of a State of the employment of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the United Nations.
(4) The organization, or the encouragement of the organization, by the authorities of a State, of armed bands within its territory or any other territory for incursions into the territory of another State, or the toleration of the organization of such bands in its own territory, or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursions.
(5) The undertaking or encouragement by the authorities of a State of activities calculated to foment civil strife in another State, or the toleration by the authorities of a State of organized activities calculated to foment civil strife in another State.
(6) The undertaking or encouragement by the authorities of a State of terrorist activities in another State, or the toleration by the authorities of a State of organized activities calculated to carry out terrorist acts in another State.
(7) Acts by the authorities of a State in violation of its obligations under a treaty which is designed to ensure international peace and security by means of restrictions or limitations on armaments, or on military training, or on fortifications, or of other restrictions of the same character.
(8) The annexation by the authorities of a State of territory belonging to another State, by means of acts contrary to international law.
(9) The intervention by the authorities of a State in the internal or external affairs of another State, by means of coercive measures of an economic or politi.
cal character in order to force its will and thereby obtain advantages of any kind.
(10) Acts by the authorities of a State or by private individuals committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such, including:
(i) Killing members of the group;
(iii) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(iv) Imposing measures intended to prevent births within the group;
(v) Forcibly transferring children of the group to another group. (11) Inhuman acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian population on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities.
(12) Acts in violation of the laws or customs of war. (13) Acts which constitute:
(i) Conspiracy to commit any of the offences defined in the preceding paragraphs of this article; or
(ii) Direct incitement to commit any of the offences defined in the preceding paragraphs of this article; or
(iii) Complicity in the commission of any of the offences defined in the preceding paragraphs of this article; or
(iv) Attempts to commit any of the offences defined in the preceding paragraphs of this article.
Article 3 The fact that a person acted as Head of State or as responsible government official does not relieve him from responsibility for committing any of the offences defined in this code.
Article 4 The fact that a person charged with an offence defined in this code acted pursuant to an order of his Government or of a superior does not relieve him of responsibility in international law if, in the circumstances at the time, it was possible for him not to comply with that order.
40. Article 16, paragraph 4, of the Covenant of the League of Nations stipulated : “Any Member of the League which has violated any covenant of the League may be declared to be no longer a Member of the League by a vote of the Council concurred in by the Representatives of all the other Members of the League represented thereon.” Article 6 of the Charter of the United Nations provides: "A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.”
41. The Charter of the United Nations stipulates in Article 5: "A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.” Suspension from the rights and privileges of membership is an additional sanction, insofar as the "preventive or enforcement action" taken against a member state already has the character of a sanction. Article 19 stipulates a special sanction for a special violation of the Charter. It runs as follows: "A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization
shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The General Assembly may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the Member."
(d) Peace Treaties and Neutrality
(aa) Peace treaties within a system of international security.
The fact that within a system of international security the use of armed force, especially war, is, in principle, forbidden and is permitted only as a sanction, has important consequences with respect to the termination of this action and the obligations and rights of the states not involved in it.
It is usual to terminate a war by a peace treaty concluded by the belligerents. The purpose of this treaty is expressed in a clause declaring that there shall be peace, or that the state of peace is established, or that the state of war is terminated between the belligerents. This clause implies that the contracting parties assume the obligation to abstain from further acts of war. Sometimes this obligation is expressly stipulated. A peace treaty usually also contains other provisions, but the termination of the war by the stipulation of the obligation just mentioned is its essential function. If, in violation of a peace treaty, a belligerent continues hostilities, a war is not terminated. Hence it is not quite correct to assume that a war is terminated by a peace treaty. It is terminated by the fact that the belligerents definitively cease hostilities with the intention of terminating the war. This intention is usually, but not necessarily, expressed in the conclusion of a peace treaty. There are cases where no peace treaty can be concluded, for instance when, as an effect of a war, one of the belligerents ceases to exist as a subject of international law because its territory is annexed by the victorious belligerent or because it is dismembered and new states are established in its place. Treaties may be concluded regulating the relationships between these new states on the one hand and the state which was the opponent of the state succeeded by the new states established in its territory, on the other. However, these treaties are not really peace treaties, although they may be so termed. They are concluded after the war has been terminated. In these and in other cases the termination of a war may be ascertained by a unilateral declaration on the part of a belligerent. Without a peace treaty having been concluded, the Congress of the United States passed a resolution, approved by the President on 2 July 1921, to the effect that “the state of war declared to exist between the Imperial German Government and the United States of America by the joint resolution of Congress approved