The Condition of Illegality Under International Law

Faculty of Law, University of Oslo, Oslo, Norway


The Legal Basis for the Allied War Crimes Tribunals

The basic definitions of crimes from the bench under international law were established by the US Military Tribunal in the Justice Case after the Second World War. Allied war crime tribunals based themselves on international law, and the judges were accused of the same crimes as other war criminals. The legal basis for the International Tribunal was the London Agreement of 8 August 1945, establishing the Charter of the International Military Tribunal. Article 6 of the Charter gave the Tribunal jurisdiction to rule on the individual responsibility for crimes against peace, war crimes, and crimes against humanity. Articles 7 and 8 stated that the official position of defendants or the fact that the defendant acted pursuant to orders should not be seen as freeing them of responsibility. In order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal, the Control Council, 20 December 1945, enacted the Control Council Law No. 10. The law recognised the acts of crimes against peace, war crimes, and crimes against humanity as crimes and gave jurisdiction to deal with individual defendants. This law was the direct legal basis for the US Military Tribunal in the Justice Case.

Much has been written on the discussion on the legitimacy of basing indictments and convictions on international law, and I will not go into this discussion here.1 Today, the individual responsibility and criminal liability for breaches of international law are well established, both in customary law and in the Rome Statute of the International Criminal Court with wide recognition, and it is also well established that such cases can be tried both by international courts and tribunals and by national courts.

The US Military Tribunal Justice Case

The Justice Case comprises the most comprehensive discussion on possible charges against judges and other legal officials yet to be found in any judicial act. The Tribunal judged crimes under international law: membership of a criminal organisation, war of aggression, war crimes, and crimes against humanity. Even when assessing the criminal responsibility of German citizens for crimes against German nationals, the Tribunal made clear that its evaluation was not in any way based on national law or jurisdiction:

In declaring that the expressed determination of the victors to punish German officials who slaughtered their own nationals is in harmony with international principles of justice, we usurp no power; we only take judicial notice of the declarations already made by the chief executives of the United States and her former Allies. The fact that C. C. Law 10 on the face of it is limited to the punishment of German criminals does not transform this tribunal into a German court. The fact that the four powers are exercising supreme legislative authority in governing Germany and for the punishment of German criminals does not mean that the jurisdiction of this Tribunal rests in the slightest degree upon any German law, prerogative, or sovereignty. We sit as a Tribunal drawing its sole power and jurisdiction from the will and command of the four occupying Powers.2

This is in line with the finding of the Military Tribunal in the Ministries Case against 21 defendants charged with criminal conduct arising principally out of their functions as officials of the Reich government.3 The Tribunal dismissed the charge against the defendants in this case “of the commission of atrocities and offenses against German nationals, including murder, extermination, ill treatment, enslavement, imprisonment, plundering and looting of property, and other persecutions and inhumane acts, committed on political, racial, and religious grounds” committed in the years 1933–1939 on the ground that they had not been committed in relation to war crimes or crimes against the peace. According to the Tribunal, “crimes against humanity perpetrated by a government against its own nationals” were at the time not of themselves crimes against international law and were in “urgent need of comprehensive legislation by the family of nations, with respect to individual human rights”.4 This legal situation is important to keep in mind when judging by the standards of today since such acts are also crimes under present international law when they are committed without any relation to international conflict.

Part of the indictment against many of the defendants in the Justice Case was membership in criminal organisations. Certain groups of the Leadership Corps, the SS, the Gestapo, and the SD were declared to be criminal organisations by the judgment of the first International Military Tribunal, and this ruling was followed by the military tribunal in the Justice Case. The fact that many judges and prominent lawyers had membership in criminal organisations is illustrative of the role of lawyers and legal legitimation in the Nazi regime, but it does not pertain specifically to their role as judges.

The defendants were accused of participating in war crimes in their roles as leading officials in the Ministry of Justice and as prosecutors and judges in the German legal system. Naturally, some forms of war crimes were more relevant to their activities than others. In particular, the Military Tribunal emphasises “ill treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory”.5 Of specific importance in this respect was the development and execution of the “Night and Fog” programme, whereby civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial by special courts in Germany by order of the Ministry of Justice. The victim’s whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorising the victim’s relatives and associates and barring recourse to evidence, witnesses, or counsel for defence. If the accused was acquitted, or convicted, after serving his sentence, he was handed over to the Gestapo for “protective custody” for the duration of the war. These proceedings resulted in the torture, ill treatment, and murder of thousands of persons. According to the findings of the Military Tribunal:

The trials of the accused NN [Nacht und Nebel, i.e. Night and Fog] persons did not approach even a semblance of fair trial or justice. The accused NN persons were arrested and secretly transported to Germany and other countries for trial. They were held incommunicado. In many instances they were denied the right to introduce evidence, to be confronted by witnesses against them, or to present witnesses in their own behalf. They were tried secretly and denied the right of counsel of their own choice, and occasionally denied the aid of any counsel. No indictment was served in many instances and the accused learned only a few moments before the trial of the nature of the alleged crime for which he was to be tried. The entire proceedings from beginning to end were secret and no public record was allowed to be made of them.6

Crimes against humanity consisted of acts of “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”.7 An important aspect of this charge was that it was irrelevant to the charge whether the acts were committed against the population of occupied territories or against own nationals. Acts that were war crimes when committed against people of occupied territories could be crimes against humanity when committed against their own population:

The evidence conclusively establishes the adoption and application of systematic government-organized and approved procedures amounting to atrocities and offenses of the kind made punishable by C. C. Law 10 and committed against “populations” and amounting to persecution on racial grounds. These procedures when carried out in occupied territory constituted war crimes and crimes against humanity. When enforced in the Alt Reich against German nationals they constituted crimes against humanity.8

In addition to persecution and discrimination of own nationals on racial grounds, political persecution could also be regarded as a crime against humanity. In characterising the proceedings against Count Montgelas in April 1945 by a drumhead Court Martial, the Military Tribunal stated:

It is provided in C. C. Law 10 that persecutions on political as well as racial grounds are recognized as crimes. While the mere fact alone that Montgelas was prosecuted for remarks hostile to the Nazi regime may not constitute a violation of C. C. Law 10, the circumstances under which the defendant was brought to trial and the manner in which he was tried convince us that Montgelas was not convicted for undermining the already collapsed defensive strength of the defeated nation, but on the contrary, that the law was deliberately invoked by Gauleiter Holz and enforced by Oeschey as a last vengeful act of political persecution. If the provisions of C. C. Law 10 do not cover this case, we do not know what kind of political persecution it would cover.9

The Count had made insulting remarks concerning Hitler, among others, to the effect that his true name was Schickelgruber. He also expressed approval of the attempt upon Hitler’s life on 20 July 1944. He was sentenced to death by the Court Martial and shot.

A particular aspect of crimes against humanity is where acts were part of the extermination of a whole group of people, genocide, and where the acts were part of a systematic discrimination of a group. In particular, the treatment of Poles and Jews formed an important part of the Justice Trial.

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