With respect to the laws of war governing the relations between civilian populations and military occupation authorities, the Nuremberg decisions have covered, in great detail, a wide variety of questions. The laws of war with respect to economic exploitation of an occupied country were reviewed and applied in numerous and diverse circumstances, brought to light in the industrialists trials. The scope of responsibility for the deportation to forced labor of civilians in occupied territory was explored in nine of the trials, wherein government officials, military leaders, industrialists, the police, and the judiciary were involved. Taken as a whole, these decisions constitute both a reaffirmation and a refinement of the principles laid down in the Hague Conventions. Here again the most controversial ruling was made in the "Hostage Case," wherein the court reluctantly held that the laws of war do not now prohibit the killing of hostages under certain specified circumstances. In so doing, the Tribunal practically invited revision of the Hague Conventions so as to expressly forbid the killing of hostages in the future. The records and judgments of the Nuremberg trials, containing as they do extensive testimony-both oral and documentary-by military experts and others, furnish a unique and extensive source for restating the laws of war so as to provide the maximum practical degree of protection to the civilian populations of occupied territory. Crimes Against Humanity None of the Nuremberg judgments squarely passed on the question whether mass atrocities committed by or with the approval of a government against a racial or religious group of its own inhabitants in peacetime constitute crimes under international law. Such a contention was made by the prosecution before the IMT, but the Tribunal disposed of this charge by holding that the language of the London Charter limited its jurisdiction to such crimes as were committed in the course of or in connection with aggressive war. Again in the "Flick Case" and in the "Ministries Case" the prosecution raised the same question; in each indictment an entire count was devoted to the charge of prewar atrocities, chiefly against Jews. Although the language of Law No. 10 defining "crimes against humanity” differed in certain particulars from the comparable definition in the London Charter, the "Flick" and "Ministries" tribunals followed the decision of the IMT and declined to take jurisdiction of the charge. However, in two other Nuremberg cases where the question was raised only collaterally, the Nuremberg tribunals made significant and important observations on this question. Thus, in the "Einsatzgruppen Case" the Jewish exterminations of which the defendants were accused occurred during and after 1941, but it was charged that these murders constituted not only "war crimes" but also "crimes against humanity." Since no acts prior to 1939 were involved the Tribunal had no occasion to pass upon the question of construction of Law No. 10 which confronted the "Flick" and "Ministries" tribunals. But in convicting the defendants of "crimes against humanity" the court expressly stated that "this law is not limited to offenses committed during war," "241 and observed that Crimes against humanity are acts committed in the course of wholesale and systematic violation of life and liberty. It is to be observed that insofar as 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.242 So, too, in the "Justice Case," where "crimes against humanity" committed after 1939 were also charged against the defendants, the Tribunal stated: it can no longer be said that violations of the laws and customs of war are the only offenses recognized by common international law. 241 Transcript, p. 6768. 242 Ibid., p. 6767. 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.243 The court proceeded to review a number of incidents extending over a century where nations or their chiefs of state had intervened or protested against religious or racial atrocities in Turkey, Rumania, and elsewhere, and quoted with approval244 Bluntschli's statement that "states are allowed to interfere in the name of international law if 'human rights' are violated to the detriment of any single race."245 The practical importance of this question can hardly be overstated, and the convention recently concluded by the United Nations on the subject of "genocide" is a manifestation of the lively interest which it has awakened. Important as is the concept of "aggressive war," and beneficent as the Hague and Geneva Conventions may be, we can hardly expect much further judicial development and interpretation of "crimes against peace" or "war crimes" except in the unhappy event of another war. The concept of "crimes against humanity," however, if it becomes an established part of international penal law-as it seems to be doing-will be of the greatest practical importance in peacetime. Indeed, it may prove to be a most important safeguard against future wars, inasmuch as large-scale domestic atrocities caused by racial or religious issues always constitute a serious threat to peace. Conspiracy and Other Questions In all the Nuremberg trials, only eight defendants were convicted of conspiracy, those being the eight convicted by the IMT on the charge of conspiracy to initiate and wage aggressive war. 243 Ibid., p. 10641. 244 Ibid., p. 10645. 245 J. K. Bluntschli, Professor of Law, Heidelberg University, in Das moderne Voelkerrecht der civilisierten Staaten (3d ed., 1878), p. 270. We have seen earlier246 that the indictment before the IMT was drawn on the theory that conspiracy was the broadest of all the charges, but that the IMT treated it as the narrowest. Not only did they convict four defendants on the substantive charge of planning and waging aggressive war who had been acquitted on the conspiracy count, but also they dismissed entirely the charge of conspiracy to commit war crimes and crimes against humanity as beyond their jurisdiction under the language of the London Charter. It became apparent during the IMT trial, not only from the arguments of defense counsel but from the reactions of the Continental members of the Tribunal, that many European jurists view the Anglo-Saxon concept of criminal conspiracy with deep suspicion. Indeed, after the close of the IMT proceedings the French member of the Tribunal (Professor Donnedieu de Vabres) delivered a public lecture in which he uttered some very harsh words about conspiracy and made it plain that he, for one, had endeavored at Nuremberg to confine that doctrine to the narrowest limits.247 It is an interesting contrast that Mr. Henry L. Stimson, in one of the most distinguished pieces of writing on the Nuremberg trials, declared that in his opinion the principal defect in the IMT's judgment was the very limited scope which had been allowed to the doctrine of conspiracy.248 In the four subsequent Nuremberg trials in which the defendants were accused of planning and waging aggressive war they were also accused of conspiracy to that end. In all four cases the charge was rejected, as was inevitable in the three cases in which the substantive accusation itself failed. Even in the "Ministries Case," where five defendants were convicted of initiating aggressive wars, the court dismissed the conspiracy charge with the summary statement that "The Tribuna! is of the opinion that no evidence has been offered to substantiate a con 246 Supra, p. 269. 247 "Le Procès de Nuremberg," by Donnedieu de Vabres (1947).* 248 "The Nuremberg Trial: Landmark in Law," op. cit. viction of the defendants in a common plan and conspiracy."24 In three of the early Nuremberg trials under Law No. 10,250 the prosecution charged the defendants with conspiracy to commit war crimes and crimes against humanity. Here, as in the case of crimes against humanity committed prior to 1939, there were certain differences between the wording of the London Charter and that of Law No. 10 upon which the prosecution relied, but once again the Nuremberg tribunals followed the IMT determination. The members of all the tribunals sat en banc to hear argument on this point-the only such en banc session that was ever held-and thereafter the three tribunals before which the question was pending issued identical rulings dismissing the conspiracy charge. The problem of conspiracy, which so troubled the German lawyers and European judges at Nuremberg, at bottom is merely one manifestation of a problem which is basic in all systems of penal law: What degree of connection with a crime must be established in order to attribute judicial guilt to a defendant? Other concepts relating to this same problem are those of principals, accessories, accomplices, and attempts. Of course, these words merely denote certain factual relationships with which any system of penal law must cope, and Continental systems of law have other words and phrases to meet these same situations. Neither the London Charter nor Law No. 10 undertook to spell out the application of these concepts in trials held under their authority, although the London Charter did make reference to "leaders, organizers, instigators, and accomplices,"251 and Law No. 10 declared (Article II, paragraph 2) that any person should be deemed to have committed the crimes defined therein "if he (a) was a principal or (b) was an accessory to the com- < mission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans 249 Judgment, p. 192. 250 The "Medical Case," the "Justice Case," and the "Pohl Case" (Cases I, 3, and 4 respectively). 251 This language is found in the concluding paragraph of Article 6. |