(aa) Before entering into a detailed critical discussion, an important statement on the question of crimes against humanity has to be made:

Art. 6 (c) of the Charter, according to its wording, also allowed the prosecution of such crimes against humanity committed by Germans in Germany against German citizens before the outbreak of World War II. It is to be emphasized that the International Military Tribunal refused to recognize the existence of jurisdiction of such a wide extent:

"With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the War, and that many of them were kept in concentration camps in circumstances of great horror and cruelty...The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that, revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter; but from the beginning of the War in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment and committed after the beginning of the War did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity."[133]

"Atrocities committed before the war, horrible as they were, were declared as being outside the jurisdiction of the International Military Tribunal, according to the wording of the Charter."[134]

Now, Israel certainly cannot rely upon the laws of war and occupation in order to justify its claim for criminal jurisdiction over the Accused Eichmann. However this result does not make unnecessary a detailed discussion of the London Charter and the Nuremberg judgment. For it is too obvious that the objection might be raised that the London Charter might also be interpreted quite properly - even that it ought to be interpreted - so that the prosecution of crimes against humanity would be permissible even if they had not been committed "in execution of, or in connection with, the aggressive war." This objection is to be expected all the more as the restrictive interpretation of the International Military Tribunal had already been expressly subject to negative criticism in comments on the Judgment.[136]

(bb) The London Charter and the legal principles underlying the judgment of the International Military Tribunal at Nuremberg are not in conformity with international law which had been in force in 1945/46, and in particular at the time when the alleged offences were committed.

The view - namely that neither the Charter nor the judgment had merely given positive expression to international law which anyhow had already been in force - had been held by many respected and unbiased observers already at the time when the prosecution of German war criminals and crimes against humanity by the occupying powers was only at the stage of planning. Additional voices in the same sense were heard after the end of the Nuremberg Trials.

The present State Attorney of the Land Hessen, Bauer, believed himself entitled to state, in a book written already prior to the end of the War, that the Allied Powers were conservatives holding up the status quo also in its moral and legal aspects in their struggle against Hitler. "Their victories will also be the victory of the existing law."[137]

In conformity with this fighting tendency, the meaning of the planned trials against the German war criminals would therefore be the victory of existing law over revolutionary law (namely the law of National Socialism).[138] The actual course of events has proved this expectation of Bauer's to be erroneous. Actually, the London Charter and the Nuremberg judgment themselves amounted to "revolutionary law" (it is true - without having the law-making force of a revolution, as will be demonstrated later on).

In proof of the fact that the London Charter not merely defined and laid down in writing international law which had been in force, but that its legal principles rather constitute a novum in the history of international law, a statement of the British delegate to the London Conference (meeting of 29 June 1945) and - later on - acting British Chief Prosecutor before the International Military Tribunal, Sir David Maxwell-Fyfe, is most characteristic:

"What we want to abolish at the trial is a discussion as to whether the acts are violations of international law or not. We declare what the international law is, so that there won't be any discussion on whether it is international law or not."[139]

"The sentences passed by the Nuremberg Tribunals are based upon new and up to now nowhere specified international law."[140]

"The Nuremberg law courts condemn Germans according to a right until now unknown in Germany and to which the nations applying it against Germany are not willing to submit."[141]

"However little sympathy needs to be wasted on the Nazi bigwigs there condemned, attention must be called to the fact that it was not an old or new international law which was applied, but a new municipal law, a criminal law, which was not theretofore known."[142]

The criminal nature of an aggressive war:

The Nuremberg judgment of the International Military Tribunal has advanced the theory that art. 6(a) of the Charter - which makes the planning and carrying out of an aggressive war a criminal offence - is in conformity with existing international law, since this already recognizes the existence of the offence of "crime against peace." In particular, the tribunal, basing itself upon the Kellogg Pact, not only arrived at the correct conclusion that this pact had branded every aggressive war as being contrary to international law, but it went much further and based upon the Kellogg Pact also the criminal nature of every aggressive war and, in addition to further grounds, the individual criminal responsibility of organs of a State which planned, prepared and carried out the aggressive war.[143]

The inaccuracy of this view has been recognized already at an early date[144] and will be hardly contested today seriously any more. The wealth of comments cannot be quoted here otherwise than by way of selection.

E.g., the Swiss scholar of criminal law, Professor Pfenninger, demonstrated already in 1945,[145] that an aggressive war, it is true, is prohibited by the Kellogg Pact and by the covenant of the League of Nations, but that it had not been declared to be a crime and an extraditable offence. It had to be "stated that today neither a rule of municipal criminal law nor a rule of international criminal law would justify a "judgment of guilty."[146]

Pfenniger declares that he was at a loss to understand how the Nuremberg Trials - which had not yet begun at that time - would overcome this difficulty.

The same opinion was voiced, prior to the end of the War, by Fritz Bauer[147] who concluded:

"Therefore, guilt for the (outbreak of) war is not punishable."[148]

The following, e.g., is the comment of the London scholar of international law, H.A. Smith, in respect of the problem: There is no offence in international law providing for the individual punishment of an aggressive war.

"It may safely be said that no lawyer would have dared to say in 1939 that the rulers of a State could be punished as individual criminals for preparing an aggressive war."[149]

In addition to the foregoing, the comments of Kelsen,[153] Finch,[154] Guggenheim[155] and Jescheck,[156] making an aggressive war a criminal offence, exceeds the scope of existing international law.

Verdross' lucid and convincing demonstrations shall summarize and conclude the discussion of this question:

"The London Agreement, however, exceeds the scope of general international law by...making crimes against peace punishable. This term comprises, according to the Charter, planning, preparing, starting and carrying out of aggressive wars, as well as a participation in such undertakings. These offences had been unknown before in international as well as in municipal law. The Nuremberg International Military Tribunal, it is true, tried to show that crimes against peace had already been prohibited by rules of general international law, an aggressive war being a crime, at any rate, since the conclusion of the Kellog Pact. However, in so doing, the Tribunal had overlooked the fact that the Kellogg Pact had imposed obligations only upon States, but not upon individuals. It also had not provided for sanctions, but only laid down that a state which violates the pact will be deprived of its benefits - that is to say: it can be attacked legitimately by all the other states, parties to the covenant. The Covenant does not contain any hint at the existence of criminal sanctions against individuals.[157] The assertion in the judgment in question that the respect of obligations in international law can only be guaranteed by the punishment of the guilty politicians and their accessories may be correct de lege ferenda. However, it is contrary to general international law which provides only for sanctions. But this principle applies, as a rule, even today, the covenant of the United Nations providing exclusively for collective sanctions against aggressive wars and other breaches of the peace and threats to peace (art. 39ff. of the Charter of the United Nations)...No doubt the London Four Power Agreement is therefore a penal law with retrospective effect (ex-post-facto law) which can only be justified as an order of the occupying powers under art. 42 of the Hague Convention (No.IV) respecting the Laws and Customs of War on Land, 1907."[158]

The annulment of the plea of superior orders as making an offence not punishable by art. 8 of the London Charter[159] constitutes a particularly dubious example of the extent and in which manner the Allied Powers had deviated from the principles of existing international law in order to deprive their German enemies of means of legal defence rooted in the existing international law.[160]

The main model for the repeal of the plea of superior orders is to be found in an amendment of sec. 443 of the British Manual of Military Law, made only in April 1943. This amendment was made exclusively - as confirmed by Morgan - in anticipation of the planned trials of war criminals:

"It (i.e. the amendment) was, as I have observed, only made, in view of the Nuremberg Trial, in the nick of time."[161]

In the 5th edition of Oppenheim's International Law - i.e. during the War - Lauterpacht had adopted, still without any change, Oppenheim's doctrine - which recognized the "plea of superior orders" as justification - from the 1st till the 4th editions of the book, and had thereby confirmed this doctrine. The former wording of sec. 443 of the British Manual of Military Law constituted a nearly literal adoption of Oppenheim's doctrine.

In an article published in 1944, "The Law of Nations and the Punishment of War Crimes,"[163] Lauterpacht abandoned the view previously held by him and advanced exactly the opposite view, claiming that it reflected existing international law. Lauterpacht's article had been made accessible to the British Government already before its publication;[164] the amendment made already before the publication of Lauterpacht's article in sec. 443 of the British Manual of Military Law amounted to a nearly literal adoption of Lauterpacht's new thesis.

The amendment of the British Manual of Military Law, as well as the sudden reversal of Lauterpacht's opinion, met in England with harsh and frequent polemical and sarcastic criticism.165 The following statement by Smith is characteristic of this criticism:

"Perhaps it is not unfair to doubt whether Professor Lauterpacht, who has justly earned the position of a distinguished scholar in this country, would have ventured, while serving in the Austrian Army in the First World War, to act upon the doctrine which he now holds."[166]

Notes

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