carrying out the war crimes trials.241 Had there been such an organization, the trials under Law No. 10 could have been commenced much sooner, and there need never have been such an abrupt turnover of personnel as there was between the first Nuernberg trial and those held subsequently. The establishment of such an organization at the outset would, furthermore, have avoided certain administrative features of the Nuernberg trials which lent themselves to misunderstanding. As has been explained, it resulted from the fact that Mr. Justice Jackson and his staff arrived at Nuernberg long before the IMT was constituted or a General Secretary appointed that the prosecution was obliged to undertake the general administrative responsibility for the trials, and this situation repeated itself in October 1946 in connection with the trials under Law No. 10.242 Many of the service functions, such as translating, interpreting, and reproduction of documents, should more logically have been performed by an over-all administrative officer such as the Secretary General than by the Chief Prosecutor. By and large, things nonetheless went reasonably smoothly, but it was impossible to avoid a certain amount of criticism of the set-up on the ground that the prosecution was in too powerful a position from an administrative standpoint. These complaints never reached serious proportions and there was, I hope and believe, little basis for them in any event, but if everything were to be "done over again," I would certainly recommend that the locus of administrative responsibility not be placed in the prosecution. Apart from the shortcomings in the initial planning and basic administrative organization, it seems to me that there has been an unfortunate lack of planned effort to utilize the documents and other evidence disclosed at the trials so as to advance the purposes of the occupation of Germany. Nowhere can these records be put to more immediate or better use than in German schools and universities, and in German books and magazines. It is true, to be sure, that the reorientation of German thought along democratic lines must ultimately be accomplished by the Germans themselves. But the least we can do is to insure that the documents which expose the true nature of the Third Reich are circulated throughout Germany. The Nuernberg documents must be utilized to the full in writing German history, if the Germans of today are to grasp the truth about the past. In my opinion, it should be a primary objective of the Education and Information Control branches of the occupational administration to effect this distribution. 241 In point of fact the division of business between Nuernberg and Dachau never presented any really troublesome jurisdictional or administrative problems, but there was no logical basis for this dichotomy, which arose almost by chance because of the sequence of events. 242 Supra, p. 38. Significance and Influence of the Trials The first Nuernberg trial before the IMT and the 12 succeeding Nuernberg trials were held under distinct juridical auspices, in that the IMT derived its jurisdiction from the London Agreement and Charter, while the later Nuernberg tribunals were established pursuant to Control Council Law No. 10. As has been seen, however, the provisions of the London Charter and Control Council Law No. 10 closely parallel each other, and the underlying principles are identical. The first trial and the 12 following trials, therefore, form a single sequence based on common principles. What did the judgments in and results of the trials under Law No. 10 add to what had been accomplished by the IMT? Apart from the particular matters suggested below, it seems to me that the most important feature of the trials under Law No. 10 was that they showed that Nuernberg was a process, not an episode. Despite the stature of the IMT judgment, had it stood as the sole judicial utterance at Nuernberg it would have been subject to the unwarranted criticism that it was merely the product of the political forces of the moment. In fact, however, Nuernberg was based on enduring principles and not on temporary political expedients, and this fundamental point is apparent from the reaffirmation of the Nuernberg principles in Control Council Law No. 10, and their application and refinement in the 12 judgments rendered under that law during the 3-year period, 1947 to 1949. During those years the international political situation underwent revolutionary changes, but the principles of Nuernberg continued to be applied there. So far as the basic principles of international penal law are concerned, the IMT and the Law No. 10 tribunals worked within the same framework. The definitions of international crimes contained in the London Charter and Law No. 10 were the same in outline and in most of the details. So far as the interpretation of these definitions was concerned, the IMT and the later tribunals alike gave full weight to the general principle that criminal statutes are, in case of ambiguity, to be strictly construed. For the most part, the tribunals established under Law No. 10 were reluctant under any circumstances to adopt a broader construction of these definitions than the IMT had applied in its judgment. Nonetheless, several developments under Law No. 10 are of major importance. Perhaps of outstanding interest was the decision in the "Ministries case" (Case No. 11) that the German conquests of Austria and Czechoslovakia constituted crimes against peace, even though both those countries succumbed to German threats without offering military resistance so that no "shooting war" occurred. 243 Inasmuch 248 From this conclusion, one of the three judges in that case (Judge Powers) dissented. as the indictment filed before the IMT did not charge that the invasions of these two countries constituted independent "crimes against peace," but only that they constituted part of the conspiracy or common plan to commit the crimes charged elsewhere in the indictment, this question was not involved in the first Nuernberg trial. That the IMT would have come to the same conclusion had it been confronted with this problem under Law No. 10 is probable, inasmuch as the IMT declared in its judgment that the invasions of Austria and Czechoslovakia were “aggressive acts.” 244 In line with these statements by the IMT, the square decision of Tribunal No. IV to this effect seems to me unassailable. Otherwise, it would follow that a great power may, with legal impunity, mass such large forces to threaten a weaker country that the latter succumbs without offering resistance. If it is a crime to initiate aggressive war by deliberately attacking another country by military force, surely it is no less a crime to conquer it by military threats. In view of the manner in which a dictatorial regime has been imposed on several European nations since the end of the Second World War, the decision in the "Ministries case" is of particular current significance. With respect to "war crimes" and "crimes against humanity," likewise, some notable decisions were rendered by the Law No. 10 tribunals. The laws and usages of war, both those relating to combat and those governing military occupation, were reaffirmed and refined in all 12 of the cases. The decisions in the "Hostage case" (Case No. 7) with respect to the belligerent status of guerrillas and partisans, and the treatment of hostages, have attracted widespread comment-some critical and some complimentary-and will no doubt stimulate efforts to review the provisions of the Hague and Geneva Conventions relating to these controversial questions. The major question of whether atrocities committed in peacetime by a government against its own citizens in the course of religious, racial, or political persecutions are offenses against international penal law was considered far more searchingly by several of the Law No. 10 tribunals than by the IMT. No definitive precedent was established; in the two cases in which the indictment presented this question the tribunals ruled that the language of Control Council Law No. 10 did not comprehend the crimes charged.245 In two other cases, however, where the question was collaterally involved, the tribunals made significant observations on this subject. Thus, in the "Einsatz case" (Case No. 9) Tribunal No. II stated: 240 Crimes against humanity are acts committed in the course of wholesale and systematic violations of life and liberty. It is to be observed that insofar as 244 Trial of the Major War Criminals, op. cit. supra, Vol. I, pp. 318, 334. 246 Transcript of proceedings, p. 6767. international jurisdiction is concerned the concept of crimes against humanity does not apply to offenses for which the criminal code of any well-ordered State makes adequate provision. They can only come within the purview of this basic code of humanity because the State involved, owing to indifference, impotency, or complicity, has been unable or has refused to halt the crimes and punish the criminals. And in the “Justice case" (Case No. 3) the court said: 247 * it can no longer be said that violations of the laws and customs of war are the only offenses recognized by common international law. The force of circumstance, the grim fact of worldwide interdependence, and the moral pressure of public opinion have resulted in international recognition that certain crimes against humanity committed by Nazi authority against German nationals constituted violations not alone of statute but also of common international law. Important as the foregoing decisions and observations may be in the development of international penal law, the major legal significance of the Law No. 10 judgments lies, in my opinion, in those portions of the judgments dealing with the area of personal responsibility for international law crimes. The trials under Law No. 10 covered a very much wider variety of circumstances than the IMT case. Most of the defendants in the first trial were the surviving topmost Nazis (Goering, Hess, and Ribbentrop) and prominent Nazi administrators and officials (such as Sauckel, Frick, Funk, Speer, and others). Very few of these Nazi leaders would have normally been described as "respectable people" in a government or community of moderately high personal standards. Other IMT defendants such as von Neurath and Schacht were, to be sure, in a rather different category, but they were few in number. The trials under Law No. 10, on the other hand, explored the record and judged the conduct of a large number of men who were not "professional Nazis" but who occupied key positions in the Third Reich, such as career diplomats, doctors, lawyers and judges, businessmen, and military leaders. Whatever mistakes were made at Nuernberg, and no doubt there were many, I do not think it can ever be seriously charged that wealth, prestige, or the "garments of respectability" served to protect from indictment any individual against whom substantial evidence appeared to exist, or that any group or category was singled out for either favorable or severe treatment. In judging the defendants from all these walks of life, the tribunals were called upon to weigh-whether by way of defense or mitigation— all the attendant facts, circumstances, pressures, and fears which influenced or were alleged to have influenced the conduct of these men. All of the indicted industrialists, for example, sought to justify their utilization of slave labor on the ground that they lived in fear of Nazi tyranny and were obliged to comply with governmental policy. The iron and steel magnate, Friedrich Flick, coined the phrase "howling 247 Transcript of proceedings, p. 10641. with the wolves" to explain his anti-semitic utterances and participation in "Aryanization" of Jewish property. Flick and others described their close associations with Himmler as "an insurance premium to insure personal safety." The indicted military leaders sought refuge in the analogous plea of "superior orders." In all these cases the tribunals had to determine whether the plea of "duress" or "superior orders" was genuine-i. e., whether the defendant had in fact acted under the pressure of fear or willingly-and, if the plea was found to be bona fide, to what extent it should be given weight in defense or mitigation. The observations of Tribunal III in its judgment in the "Krupp case" (Case No. 10) seem to me the most penetrating that were made on this score: 248 the question from the standpoint of the individual defendants resolves itself into this proposition: To avoid losing my job or the control of my property, I am warranted in employing thousands of civilian deportees, prisoners of war, and concentration camp inmates, keeping them in a state of involuntary servitude; exposing them daily to death or great bodily harm, under conditions which did in fact result in the deaths of many of them; and working them in an undernourished condition in the production of armament intended for use against the people who would liberate them and indeed even against the people of their homelands. If we may assume that as a result of opposition to Reich policies, Krupp would have lost control of his plant and the officials their positions, it is difficult to conclude that the law of necessity justified a choice favorable to themselves and against the unfortunate victims who had no choice at all in the matter. Or, in the language of the rule, that the remedy was not disproportioned to the evil. In this connection it should be pointed out that there is a very respectable authority for the view that the fear of the loss of property will not make the defense of duress available. But the extreme possibility hinted at was that Gustav Krupp and his officials would not only have lost control of the plant but would have been put in a concentration camp had they refused to adopt the illegal measures necessary to meet the production quotas. * in all fairness it must be said that in any view of the evidence the defendants, in a concentration camp, would not have been in a worse plight than the thousands of helpless victims whom they daily exposed to danger of death and great bodily harm from starvation and the relentless air raids upon the armament plants to say nothing of involuntary servitude and the other indignities which they suffered. The disparity in the number of the actual and potential victims is also thought provoking. The Nuernberg trials are not, of course, of interest to lawyers alone. The documentation is amazingly profuse and enlightening, and no well-rounded study of German or European affairs since the First World War can now be made without taking full account of the documents (as well as the testimony) offered in the trials of the diplomats, industrialists, and military leaders. Even more important, the records of these trials embody a most penetrating examination and minute dis 248 Transcript of proceedings, pp. 13396-13397. |