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War Crimes Law And The Vietnam War

 

By Benjamin B. Ferencz

 

published: June 1968

 

source: The American University Law Review, Volume 17, Number 3, June 1968

 

The formulation of rules by which wars should be conducted has occupied belligerents for hundreds of

years, yet man remains a primitive in governing what is the most primitive of human occupations. The

maintenance or restoration of peace is an even more elusive objective. It is viewed as a singular advance of

civilization when, after one or both sides have been devastated, the vanquished are brought to public trial to

face the justice or vengeance of the victors. Judicial trials are meaningful not merely for condemning deeds

of the past but for setting standards which will govern future conduct. In his opening statement before the

International Military Tribunal, Justice Jackson declared:

 

We must never forget that the record on which we judge these defendants today is the record on which

history will judge us tomorrow. To pass these defendants a poison chalice is to put it to our own lips as well.

To be true to our promise, we must be willing to measure the legality of the conflict in Vietnam by the

precepts laid down in Nurnberg. Are criminal violations of international law being committed and what are

the rights and obligations of the participants? A review of war crimes laws as applied to the facts in Vietnam

may be helpful in clarifying some of the issues which have become the subject of increasing public debate.

 

Historical Background

International law develops slowly and must be seen as an evolving process. In biblical times there were few,

if any, restraints on the conduct of war. The Lord’s counsel to King Saul was to completely destroy his

enemy, including men, women, animals, and even the suckling children. In Ancient Greece and Rome,

victory vested in the conqueror the right to kill or enslave the captives. In later years, the doctrine evolved,

no doubt influenced by economic self-interest, that it was illegal to do greater harm than necessary to

achieve the war objective and that therefore innocent non-combatants such as women and children should

be spared. As the concept of human rights, which inspired both the French and American revolutions, began

to find its echo in the rules of war, multilateral conventions set forth in formalistic detail what civilized states

declared to be the international common law for the conduct of war.

 

Following World War I, the Treaty of Versailles required Germany to surrender for trail before an

international court, those persons who had been accused of violating the laws of war. In the face of stubborn

German refusal to honor the "Diktat von Versailles," the Allied Powers finally agreed to allow the accused to

appear before German judges of their own Supreme Court at Leipzig. Of nearly nine hundred on the original

Allied list of war criminals, only twelve were brought to trial. About eight hundred cases were dismissed on

the grounds that the "misdeeds" were not covered by German law. The few persons who were given mild

sentences, for such atrocities as the sinking of hospital ships and unarmed lifeboats, promptly managed to

"escape."

 

It was with this background that the Allied governments faced the problem after World War II of bringing to

justice those persons who were accused of committing crimes on a scale never before witnessed in the

history of mankind.

 

The Principles of Nurnberg

During the war crimes trials which followed the Second World War, certain principles of law were applied

which found their clearest expression at the international trials which took place in Nurnberg, Germany.

Similar trials and proceedings before Military Commissions were conducted in Tokyo, in several of the

countries overrun by Germany, and in the various Allied-occupied zones of the former Reich.

 

Following various declarations going back to 1942, the four occupying powers met in London and drew up

an Agreement and Charter. According to its mandate, an International Military Tribunal (IMT), composed of

representatives of the four powers, was to be created for the purpose of bringing to trial the captured Nazi

leaders such as Goering et al. Three principle categories of offenses were delineated–Crimes Against

Peace, War Crimes, and Crimes Against Humanity. It was agreed that those participating in the formulation

of execution of a common plan or conspiracy to commit such offenses would be punishable. The accused’s

official position as head of a State would be no excuse, and acting pursuant to a governmental or superior

order could only be considered in mitigation.

 

The postulates of the London or IMT Charter were later applied in the so-called "Subsequent Proceedings"

at Nurnberg: Twelve additional trails against leading doctors, judges, generals, industrialists and members of

the Nazi Elite Guard (SS). These tribunals were bound by Allied Control Council Law No. 10 and certain

Military Governmental Ordinances, which expanded and clarified the doctrines set forth in the earlier London

Charter.

 

Control Council Law No. 10 was not merely occupation law or Allied law, as some Germans later

maintained. Although it provided for courts whose members were United States or Allied nationals, it was

international law applied by an international court. It represented a codification of pre-existing rules which

had become part of the common law of civilized nations. The principle of fairness epitomized by the maxim

nullen crimen, nulla poena sine lege was not to be violated since no one could be convicted unless it was

shown beyond a reasonable doubt that he knew or should have known that his act was criminal.

 

A. Crimes Against Peace

Crimes Against Peace were defined in the IMT Charter as:

[P]lanning, 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.

 

Control Council Law No. 10 supplemented this to include "initiation of invasions of other countries and wars

of aggression in violation of international laws and treaties.

 

The condemnation of wars of aggression was nothing new and had been specifically outlawed in the

Kellogg-Briand Pact of 1928. The determination of exactly what constitutes a "war of aggression" is of

course the crux of the matter and continues to bedevil us today when we consider Vietnam. The United

Nations has probed the subject for over seventeen years without any agreement being reached. Whatever

refinements of definition might be debated by politicians or legal scholars, there was no hesitation by the

judges of Nurnberg in agreeing that by any standards those leaders who had systematically and flagrantly

planned the invasion and subjugation of neighboring friendly states had committed a Crime Against Peace.

 

B. War Crimes

War Crimes were defined by the IMT Charter as:

Violations of the laws or customs of war. Such violations shall include but not be limited to murder, illtreatment

or deportation to slave labor or for any other purpose of civilian population 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.

 

Control Council Law No. 10 simply clarified that the proscribed deportation had to be "from occupied

territory."

 

The Nurnberg definitions of War Crimes contained no startling innovations. The adoption of the Hague

Conventions in 1907 and other treaties had made such offenses part of the international law of many

countries.

 

C. Crimes Against Humanity

Among the more controversial principles established at Nurnberg was the concept of Crimes against

Humanity. These were defined as:

Murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian

population before or during the war, as 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.

 

The IMT considered itself to be constricted by the Charter to considering only those Crimes against

Humanity which were connected with Crimes against Peace and War Crimes. Law No. 10 removed this

limitation by eliminating from the definition the requirement that the acted be committed "before or during the

war" and "in execution of or in connection with any crime within the jurisdiction of the Tribunal." The Control

Council Law also sharpened the definition by specifying that the prohibited atrocities and offenses also

included imprisonment, torture and rape. As interpreted by two of the subsequent Nurnberg courts, there

could be a Crime against Humanity even though it was not committed during a war and regardless of the

nationality of the victim or the place of the crime.

 

What distinguished Crimes against humanity from War Crimes or ordinary crimes under common law or

national codes was that they constituted not isolated incidents but large and systematic actions, often

cloaked with official authority, which by their dimension or brutality placed the international community in

danger or shocked the conscience of humanity. The clear Nazi policy for the wholesale extermination of the

Jews, for example, was so flagrant an abuse that international intervention was justified despite the fact that

the acts were committed on the territory and against the nationals of the offending state.

Like Crimes against Peace, the offense of Crimes against Humanity was declaratory of the evolving

conscience of the world. It conformed not to pre-existing statutes but to the movement of ideas which the

new statute, reflecting the progress of law and civilization, simply codified.

 

D. Conspiracy and Membership in Criminal Organizations

The Charter of the IMT provided that "leaders, organizers, instigators and accomplices participating in the

formulation or execution of a common plan or conspiracy" could be held responsible. This was however,

interpreted by the IMT to refer only to the crimes of aggressive war. Control Council Law No. 10 expanded

the rule to include any person who was a "principal," "accessory" or who "took a consenting part," or was

‘connected with plans or enterprises involving", or was a "member of any group or organization connected

with the commission of," any of the crimes listed as crimes against Peace, War Crimes or Crimes against

Humanity. The Charter as well as Law No. 10 allowed organizations to be declared criminal and its leading

members punishable if they had knowledge that the organization was being used for the commission of

crimes or if they were personally implicated in the commission of such crimes.

 

E. Individual Responsibility

Perhaps the most significant, and the most controversial achievement of Nurnberg was the application and

clarification of the doctrine of individual responsibility. The Charter declared:

The official position of defenders, whether as heads of state or responsible officials in Government

departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Although Hitler, the Head of the German State, evaded trial by committing suicide, the Tribunal found no

difficulty in holding personally responsible such high government officers as Goering, Rippentrop and the

heads of many departments convicted during the Subsequent Proceedings.

 

"He who violated the law of war," said the Tribunal, "cannot obtain immunity while acting in pursuance of the

authority of the State if the State in authorizing action moves outside its competence under international

law."

 

It has been argued that to hold an individual responsible for a "war of aggression" was an extension of the

existing law. No one was charged at Nurnberg with a Crime against Peace unless he occupied a policymaking

position. It was felt that the law had developed to a point where leading officials who knowingly

committed the most serious of all crimes could no longer find sanctuary in an artificial and outmoded

doctrine.

 

Closely related to the elimination of the defense that the deed was an act of State or done by the Head of

State was the clarification that superior orders constituted no absolute defense. Art. 8 of the Charter stated:

The fact that 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.

 

These rules remained essentially unaltered in Control Council Law No. 10.

Because of popular misconceptions, it has frequently been alleged that eliminating superior orders as a

defense created ex post facto law. There seems to be a fairly widespread notion that nay officer or soldier

who refused to obey an order of his superior officer is liable to capital punishment, or even to be shot on the

spot. While it is true, particularly in time of war, that a soldier’s primary duty is obedience and that failure to

enforce such a rule would encourage insubordination and would subvert military discipline, nevertheless it

has been the law for a long time that the order must relate to a military duty and there is no duty to obey an

order which is manifestly illegal. This has long been recognized by American courts as well as courts in

England, France and Germany. These well-established principles of law were merely reaffirmed and

strengthened at Nurnberg.

 

Nowhere was it held in any of the Nurnberg trials that a soldier has the duty to determine at his peril the

legality or illegality of every order he receives. He was merely forewarned that if it should be obvious to

every reasonable person that the order was a violation of national or international law, such as the mass

murder of innocent children and unarmed civilians, or the execution of a policy or racial extermination, then

the one who gives or carries out such an order may be accused of having committed a crime and he will

have to answer for his deeds. Insofar as he acted under the duress of superior orders and not of his own

free will, those facts, including the imminence and severity of the duress, would constitute circumstances to

be considered in mitigating the punishment.

 

These, in short, are the principles of war crimes law developed over the centuries in the continuing growth of

international law. After Nurnberg there should have been no doubt that those who violate the long

established customs of war by the commission of prohibited acts of abuse may be called to account. Those

leaders who initiate invasions and wars of aggression may personally be punished. Inhumane acts

systematically committed on a large scale, and political, racial or religious persecution may constitute

Crimes against Humanity. Any leader who plans or conspires to commit such offenses or knowingly joins or

aides an organization dedicated to the perpetration of such crimes, may be condemned a criminal. The fact

that an act was done by order of the State or a superior officer will offer no defense if the doer knew or

should have known that the act done was in fact unlawful.

 

In articulating the principles evolved from a developing common law of civilized conduct, the Nurnberg

Tribunals made a significant contribution toward a more humane and peaceful world. Yet the fires of war

have not been extinguished and man’s inhumanity to man flourished on an international scale. There is

obviously a need for new and better tools to enforce a rule of law. The first step is understanding the facts

and the precedents, and a close study of the events in Vietnam is an appropriate beginning.

 

The Charge of Criminal Conduct in Vietnam

Each side in the Vietnam conflict has publicly charged the other with War Crimes and Crimes against

Humanity. The United States and its allies have been accused of the wanton destruction of villages, the

dropping of napalm bombs, devastation not justified by military necessity, the mistreatment of prisoners and

the use of poison gas against old people, women and children.

The Viet Cong, in turn, are accused of murdering and kidnapping South Vietnamese officials and civilians

loyal to the Saigon government, of torture and mistreatment of prisoners, the plunder and pillage of property,

and the use of flame-throwers against non-combatants.

 

Crimes against Peace are also charged. The United Sates is accused of being an imperialist aggressor

against the national liberation movement of the peoples of Southeast Asia. The totalitarian regime in Hanoi

is accused of aggression against the Republic of Vietnam.

 

A. War Crimes and Crimes Against Humanity in Vietnam

We have seen that the traditional laws and customs of war clearly prohibit such offense as murder, illtreatment

or deportation of civilians, the ill-treatment of prisoners, killing of hostages, plunder, the wanton

destruction of cities, town or villages or devastation not justified by military necessity.

In every major conflict there are unavoidable incidents of brutality in clear violation of the laws of war. Such

criminal acts should be punished whenever and wherever the perpetrator is apprehended. Not every charge,

however, states facts which, even if admitted would set forth a crime.

 

One of the most widely publicized complaints, for example, has related to the use of napalm bombs by

United States forces. The customs of war have been periodically modified to keep pace with the expanding

technology of destruction. The bombing of defended cities has, whether it pleases us or not, become a

permissible act of warfare. Flame-throwers and incendiary bombs were widely used in World War II and

even those responsible for bombarding London with explosive rockets of dubious precision were not tried as

war criminals but were hailed instead as valuable scientists when they placed their knowledge at the

disposal of the victorious powers. Atomic weapons have been used and even the more destructive

thermonuclear devices are no doubt among the treasures of well stocked arsenals. Until these weapons are

specifically outlawed in binding international agreements their use, no matter how abhorrent, would not

under the present state of the law, be legally prohibited.

 

Legality is determined not by the technique but by the degree of destruction and the target. The historic

principle remains valid that no greater force may be used than is reasonably required to achieve the military

objective. Non-combatants and civilian establishments such as hospitals, churches or schools, may not be

the objective of deliberate attack. The use of napalm or fragmentation bombs against a military target or the

use of chemicals to destroy the foliage which conceals the enemy or even crop which nourishes him, may

be devastating and harsh, but it is not a crime. No one was ever tried as a war criminal for such actions.

Should destructive devices be directed against a civilian population, however, or an area which had

surrendered, it would of course constitute a war crime and any order to participate in such action should be

disobeyed. The United States Rules of Land Warfare, in defining how hostilities may lawfully be conducted,

would require no other behavior.

 

Killing, maiming, imprisonment and other acts productive of great human suffering are the stuff of which all

wars are made, yet the so-called Law of Nations has not yet developed to a point where it can validly be

said that all hostilities are ipso facto legally punishable as a Crime against Humanity.

If it could be shown that for political or religious reasons any protagonist in Vietnam carried out systematic

and wholesale persecutions involving extermination, enslavement, deportation or other inhumane acts, such

offenses would justify international intervention to protect the interests of mankind, and any person who

knowingly participated in such criminal deeds would properly be punished. It does not appear likely,

however, from any of the published reports, that the cruelties committed in Vietnam are sufficiently similar to

the Nazi persecutions of Jews, Gypsies and Poles, to justify a finding on the basis of the Nurnberg

precedent that Crimes against Humanity have been committed.

 

The most difficult question to decide is whither the war itself is of such a nature that it may properly be

condemned as a Crime against Peace.

 

B. Crimes Against Peace in Vietnam

The law laid down at Nurnberg set forth that those in positions of high responsibility who planned, prepared,

initiated or waged war of aggression or in violation of the international agreements would be guilty of Crimes

against Peace. To establish that this particular crime is being committed it must therefore be shown that the

events in Vietnam constitute aggression or a breach of international obligations.

 

1. Is There a War of Aggression in Vietnam?

Following World War I there were attempts made through the League of Nations to outlaw "wars of

aggression." These efforts reached their culmination in the widely accepted Kellogg-Briand Pact of 1928.

Although war was renounced as an instrument of national policy, many of the signatories, including the

United States, carved out an enormous loophole by making it specifically clear that they reserved the right to

have recourse to war if, in their unfettered judgment, it was necessary for their self-defense.

 

When the London Charter of the IMT was being drafted in 1945, the American delegation proposed that an

aggressor be explicitly defined in the Charter as that State which would be the first to declare war on another

State, invade the territory of another State with its armed forces, or attack by its armed forces the territory,

vessels or aircraft of another State. Although no political, military, economic or other considerations would

justify aggressions, the proposed definition specifically provided that: "resistance to an act of aggression, or

action to assist a State which has been subjected to aggression, shall not constitute a war of aggression."

Justice Jackson called attention to the fact that the United States had entered the war not because Germany

had invaded or attacked the United States but because Germany’s resort to war was regarded as an illegal

attack on international peace. The United States intervention was legal since we were extending aid to

people who had been unjustly and unlawfully attacked. With surely no malice afterthought, the United states,

in trying to define aggression at Nurnberg, set forth what was to become the justification for United States

involvement in Vietnam nay years later.

 

The United States has maintained that its action in South Vietnam in not unlawful aggression since it is

participating in collective defense against armed attack from the North. Although the Charter of the United

nations, like the Kellogg-Briand Pact, prohibits the use of force against the territorial integrity or political

independence of any state, it also provides specifically that if an armed attack occurs against a Member of

the United Nations the Charter shall not impair the inherent right of individual or collective self-defense until

such time as the Security council has taken the necessary measures to maintain peace. The United States

had argued convincingly that even though South Vietnam is not an independent sovereign State or a

member of the United Nations, it nevertheless enjoys the right of self-defense, and the United States is

entitled to participate in its collective defense.

 

Under the self-defense doctrine, the bombing of North Vietnam for the purpose of repelling or impeding an

armed attack which had its roots in that area would be legally justifiable if no more force was used than was

necessary. By limiting the application of its power and by restricting its objectives to the defense of South

Vietnam the United States would be complying with the existing legal requirements.

 

The United States had justified its action not merely as a defense measure but one undertaken in fulfillment

of an international legal obligation as well as a moral obligation. In the Southeast Asia collective Defense

Treaty, the signatory parties (not including Vietnam) agreed that n the event of aggression by armed attack

against any designated territory, including the free territory under the jurisdiction of the State of Vietnam,

each party would, in accordance with its own constitutional processes, act to meet the comk0on danger. The

United States maintains that this was a commitment on the part of the United States to intervene with

military force is conspicuously absent. So, too, the various declarations and assurances given by the United

States to the government of South Vietnam, which are set forth to further justify American action in Vietnam,

merely promised help and support in resisting communist aggression or subversion in order to protect the

independence of the republic of Vietnam. No one could reasonably conclude from the terms of those

declarations that if the United States refused to send troops it would be a betrayal of an obligation. There is

a vast difference between an obligation and an option. An authorization to take military action does not

create a legal duty to do so. Per contra, the mere absence of a legal duty does not render an action

unlawful, when the option to act is exercised.

 

It was the law established at Nuremberg that the unprovoked attacks by the Nazi government against peaceful

neighbors were so blatantly aggressive by any permissible definition as to constitute Crimes against Peace.

The conflict in Vietnam does not fall into such simple classification. International law has not yet developed

to a point where it clearly defines what constitutes a Crime against Peace in conflicts which contain an

explosive mixture of nationalistic opposition to foreign domination, civil war and social revolution.

 

The legal right of any lawful government to defend itself against violent overthrow can hardly be questioned.

The right of any government to join in the defense of its allies or friends to protect their or its own vital

interests is an ancient and well established practice. It is, however, also part of the American heritage that

the people, feeling themselves aggrieved by a foreign power or a tyrannical regime, have the legal right and

"it is their duty to throw off such government." The United States has the legal right to assist in the defense

of the government of South Vietnam. By the same token it does not become a Crime against Peace if the

citizen of either north or South Vietnam join forces for the military overthrow of a government they oppose.

 

2. Are International Obligations Being Violated in Vietnam?

It has been argued that the Vietnam conflict is a war of aggression since international obligations are being

violated. In addition to the general peace-keeping provisions of the Kellogg-Briand Pact and the United

Nations Charter, one must consider if there are any binding obligations which derived from the Geneva

Convention of 1954.

 

On July 21, 1954, after an agreement on the cessation of hostilities in Vietnam had been concluded between

the commanders of the French Union Forces in Indochina and the People’s Army of Vietnam, a "Final

Declaration" was issued which intended to restore peace in Indochina. The participants at the Conference

were Cambodia, Laos, the Democratic Republic of Vietnam, the State of Vietnam, the People’s Republic of

China, the United Kingdom and the United States. The Declaration took note of the agreement ending

hostilities and particularly the causes prohibiting the introduction into Vietnam of foreign troops or arms.

There was to be no interference in Vietnam’s internal affairs and no foreign military bases were to be

established. The People’s Army of North Vietnam was to be regrouped behind a provisional demarcation

line. The political system was to be decided in free general elections by secret ballot scheduled for July 1956

under the supervision of an international commission composed of representatives from Canada, India, and

Poland.

 

The United States specifically refused to join in the Geneva Declaration. Although it "took note" of the

agreements, it declared that it would view with grave concern any renewal of aggression in violation of the

agreements and that the United States would continue to seek unity through free elections supervised by the

United Nations.

 

It is apparent that the United States was convinced at the outset that free elections in the American sense

would not be possible. In the United States view, the communist leaders in the North were running a police

state where no one dared to vote except as directed. This, coupled with the existence of communist

sympathizers in the South, would have given the communists a decisive edge and almost certain victory

which, for political and security reasons, neither the South Vietnamese regime nor the United States

government was willing to accept. The elections envisaged for 1956 were never held. The communists,

feeling victory snatched from the hands, resumed hostilities in an attempt to unify Vietnam under their

control. The type of warfare waged included infiltration across the provisional demarcation line, recruitment

of sympathizers in the South, intimidation of villagers, guerilla attacks and conventional military assaults.

The United States moved to prevent a Viet Cong victory by the injection of increasing doses of military

support.

 

The United States had never agreed to be bound by the Geneva accords. It cannot therefore be accused of

having violated that agreement by its political decision to intervene militarily in Vietnam. Even if the United

States might be accused of having for its own political purposes provoked a breach of the peace by

encouraging the signatory government of South Vietnam to refuse to implement the Geneva agreement it is

very doubtful whether under the present definitions or precedents such action might be construed to be

criminal.

 

The pattern of aggression witnessed during World War II is absent in Vietnam. Although each side seeks the

establishment of an acceptable political system, neither one has an objective its self-aggrandizement by the

calculated and unprovoked assault and conquest of neighboring states. There is widespread disagreement

among friends and foes regarding the justification for the action taken by either side. In the absence of the

universal abhorrence which stigmatized the Nazi aggression, it is most unlikely that the tribunals at Nurnberg

could have denounced either side for committing Crimes against Peace in Vietnam.

 

3. Is There Need for a Declaration of War in Vietnam?

The question is raised whether the absence of a formal declaration of war has rendered unlawful the military

action taken by the United States in Vietnam. There is no doubt a war can exist de facto without any

declaration, and indeed this has almost been the rule. It has been established that between the years 1700

and 1872 there were about 120 wars and a formal declaration of war preceded hostilities in about ten cases.

 

This not to say that such practices are sanctioned by international law. From the time of Grotius, a

declaration of war has been considered necessary. The Hague Conference of 1907 prohibited hostilities

between the contracting parties without some kind of war declaration. The State Department has taken the

position that the absence of a formal declaration of war is not relevant in determining whether the use of

force is lawful ads a matter of international law. Legal authorities can be assembled to support both

positions.

 

In view of the common practice of States to engage in wars without formal declarations and the

disagreement and confusion which exists among legal scholars, it can hardly be concluded that the mere

absence of a formal declaration of war thereby brands every ensuing conflict as a Crime against Peace. The

decisive element in determining criminal culpability may really be whether the armed hostilities are

conducted with a belligerent intent. If carried on for the purpose of conquest or enslavement the animus

belligerendi would render the hostilities unlawful. It would, however, be a great strain to pour the Vietnam

situation into such a mould. Civil war is never solemnly declared. It always begins by insurrection against the

authority of the government, and the absence of formal declaration does not per se establish criminal

liability.

 

4. Is United States Involvement in Vietnam Unconstitutional?

If it could established that the United States military involvement in Vietnam, even though not a Crime

against Peace under international law, nevertheless was a violation of the United States Constitution, a

soldier would be justified in refusing to participate since the conflict would be unlawful under the laws of the

United States.

 

The United States Constitution stipulates that the Congress shall have the power to declare war. It cannot

be concluded from that provision, however, that the President shall have no authority to wage war without a

Congressional declaration. The President is Commander-in-Chief of the Armed Forces. The United States

Supreme Court recognized over one hundred years ago that, although the President has no power to initiate

or declare war, he is bound to resist invasion by a foreign nation even without a previous declaration of war

by Congress. There may be some doubt about the applicability of a foreign invasion precedent to the

Vietnam situation, nevertheless, the basic principle of self-defense has been recognized as authorizing

independent presidential action. The legality of the President’s action under the laws of the United States is

even more apparent from other Congressional action.

 

The SEATO Treaty, in effect, authorized the President to act to meet the common danger short of a

declaration of war. Following the attack against the United States destroyers in the Gulf of Tonkin, a more

significant Congressional resolution was passed with only two dissenting votes. It authorized the President

"to take all necessary measures to repel any armed attack… and to prevent further aggression." This was a

clear and legal grant of unlimited authority to the President to take whatever action he might deem

necessary for the defense of South Vietnam.

 

The Supreme Court has declined to challenge the legality, wisdom or propriety of the Commander-in-Chief

in sending Armed Forces abroad, for it is the President who is exclusively responsible for the conduct of

foreign affairs.

 

As far as Vietnam was concerned, the President not only had the constitutional power to do what he did but

he also had the prior specific Congressional authorization to do so. There can be little doubt, therefore, that

United States involvement in Vietnam is consistent with the law of the land.

Individual Responsibility

 

Laws do not interpret themselves. The application of the law to the facts always requires a measure of

personal judgment, and knowledge of both law and facts is essential before a valid conclusion can be

reached by the individual upon whom rests the weight of decision. The burden is only carried easily where

there is no room for doubt about either the legality or the illegality of the action under consideration.

Socrates, who was a great dissenter, recognized thousands of years ago that in an orderly society lawful

orders must be obeyed:

 

[W]hether in battle or in a court of law, or in any other place [the citizen] must do what his city and his

country order him, or he must change their view of what is just….

 

The enactment of the Selective Service Act is a valid exercise of Congressional power and its

commandments are lawful orders. Draft card burning and the refusal to be inducted into the Armed Forces

are therefore clearly unlawful. No one may assume in advance that his mere presence in the Armed Forces

will require him to commit a criminal act. Despite the enormity of Nazi crimes, membership in even the

German Armed forces was never held to be a punishable offence. There was no decision in Nurnberg which

would support a conclusion that the United States Armed Forces, like pirate ships, are criminal

organizations. A refusal to enter the Armed Forces cannot be sanctioned by any principles derived from the

Nurnberg trials.

 

Any individual ordered by a military superior to commit a clear violation of the traditional laws or customs of

a war or a Crime against Humanity would have a legal right and, indeed, a legal duty, to refuse. If, from all

the circumstances, it would reasonably concluded that he knew or should have known that the order

required him to commit a criminal act, it is his legal obligation to reject the command of his superior.

Where there is uncertainty regarding the legality of the law or the command that one who disobeys what he

merely believes to be unlawful does so at his peril. It may appear, therefore, that the citizen faces a

dilemma. If he believes the war to be criminal and refused to be inducted under a Selective Service Law

held to be valid, he faces conviction by the civilian courts. If he allows himself to be inducted the citizen

becomes exclusively subject to military jurisdiction, even if he challenges the legality of the war on

constitutional, treaty or moral grounds. If, after induction, he refuses to serve in Vietnam he may expect to

be condemned by a court martial. The conclusion should come as no surprise.

 

The Commander-in-Chief has unquestioned authority to make foreign policy and to direct all acts which he

believes to be necessary for the national defense. In the absence of any binding determination that the war

is in fact unlawful, all doubts must be resolved against the one who refuses to participate. A contrary rule

which would allow the individual to interpose his personal judgement gains the duty elected authorities of

government would not be democracy but anarchy.

 

It must be borne in mind that the hostilities in Vietnam do not duplicate the patterns of World War II. The

facts which justified the finding in Nurnberg that some of the Nazi leaders were guilty of initiating or waging a

war of aggression are not visible in Vietnam. The United Nations Charter makes provision for collective

defense. No violation by the United States of the Geneva Declaration or any obligation to declare war is

apparent. American military involvement is sanctioned by both Congress and Constitution. Under the

circumstances, it surely has not been established beyond doubt that the hostilities in Vietnam constitute a

Crime against Peace under existing international law. If in fact the war is lawful no one can validly refuse to

participate on the grounds that he would thereby be committing a crime.

 

Even if a debatable argument could be made that United States intervention in Vietnam is an unlawful

violation of the United Nations Charter no one not in a position of leading responsibility could properly be

condemned on the grounds that he knew or should have known that by aiding in the Vietnam war he was

thereby committing an illegal act which he was duty-bound to refuse to do. He need not fear that by

participating he will, on the basis of the Nurnberg principles, be adjudged a war criminal. If he refuses to

participate he cannot justify his refusal by any obligation prescribed by the existing law.

 

If there is a disagreement with the political objectives of the war, doubts about its military effectiveness or

revulsion against the cruelties and barbarism of armed conflict, each citizen may do what his own

conscience dictates. In the United States the right to dissent is inviolate and the power to persuade others

by peaceful means remains a sacred freedom. Protest on political or moral grounds should not, however, be

misconceived or cloaked as a legal obligation.

 

He who cherishes and respects the law must measure his individual responsibility by the law as it stands

today and not by what he thinks it should be or what some day may be. He will not have to drink the

hemlock for corrupting the youth, but he should recognize that Socrates’ rule is still valid:

Anyone who does not like us and the city, may go where he likes, retaining his property. But he who has

experience in the manner in which we order justice and administer the State, and still remains, has entered

into an implied contract that he will do as we command him.

 

Even in a free society, if it is to remain orderly, every citizen must be bound by the laws of the sovereign to

which he is subject.

 

As long as there is no binding determination by a legal authority universally recognized patriotic citizens

concerned with peace for themselves and their children will continue to challenge the legality of every

intentional conflict. The delegation of authority to international bodies has unfortunately been a slow

development in relations between States. After World War I the League of Nations inspired the creation of

the Permanent Court of International Justice, but because the leading powers guarded their sovereignty

jealously, the jurisdiction and power of the court was strictly limited to matters which required the consent of

all parties concerned.

 

Following World War II and the Nurnberg trials, new hope was created that a forum would exist to adjudicate

vital disputes affecting the security of all men. One of the more optimistic Nurnberg judges declared: "Where

law exists a court will rise… The Court of Humanity will never adjourn." But the Nurnberg courts did adjourn,

sine die, and have never been reconvened or replaced. In 1950 the Council of Europe established a

European Court of Human Rights but its jurisdiction was so circumscribed that it lacked all ability to influence

major conflicts between nations. The United Nations Draft Statute for an International Criminal Court was

revised in 1953 but it remains a draft resting on a shelf while the major powers intermittently wrangle about

the definition of aggression. The price for the absence of an accepted international penal court will continue

to be paid in human blood.

 

What an inspiring example it would be if the United States which was the forerunner in establishing the

Nurnberg Tribunals would again take up the torch and help to create a new international forum where

impartial men of integrity, wisdom and learning in the law could openly consider the evidence and the

precedents in determining authoritatively whether the action in Vietnam is consistent with the laws of

civilization. It would be not merely a contribution toward a more peaceful world but a reassuring

demonstration of confidence in our course and a sign of continuing respect for the rule of law in international

affairs.

 

 

 

 

West Germany: Supreme Court Bars Claims of Forced Laborers

 

By Benjamin B. Ferencz

published: June 1967

source: The American Journal of Comparative Law, Vol. 15, No. 3, 1967

 

West Germany: Supreme Court Bars Claims of Forced Laborers Against German Industrial Concerns—The

Federal Republic of Germany was one of sixty-five nations that ratified the International Labor Organization

Convention for the Abolition of Forced Labor. It thereby undertook to suppress any form of forced or

compulsory labor “as a means of racial, social, national or religious discrimination.” [1] The West German

government also made it a criminal offense to enslave any person or to be an accessory thereto. [2]

Unfortunately these standards of conduct, morality and law had been disregarded by its predecessor

government, the Third Reich, under whose authority countless thousands of persons were imprisoned for

reasons of race, religion or opposition to National Socialism. At the request of many German industrial

concerns, concentration camp inmates were leased to the companies as forced laborers, becoming virtual

slaves of the companies to which they were assigned. A recent decision of the Bundesherichtshof, defines

the rights of these forced laborers against the companies which exploited them. [3]

In 1941 Dr. Edmund Bartl, a lawyer in Sudeten Germany, was arrested, brought before a special court,

charged with opposition to the regime and sentenced to two years in prison. When this term expired the

Gestapo took him into “protective custody” and shipped him to the Sachenhausen concentration camp

outside Berlin.

 

The Heinkel company had a large aircraft factory in the town of Oranienburg, near Sachenhausen. Its labor

supply was recruited from among the camp inmates who were then housed in a branch camp on company

property. For years Dr. Bartl was forced to do heavy labor for the aircraft company. After liberation by the

Allied liberation by the Allied armies, Dr. Bartl set up residence in West Germany. He learned that the

Heinkel plant in Oranienburg was a subsidiary of the firm of Ernst Heinkel A.G. in Stuttgart; at the end of

1959 he brought suit against the parent company.

 

The plaintiff alleged that he had been forced to work for the company under the most inhuman conditions,

with inadequate food, medical care or shelter and that he was repeatedly mistreated by inmate employees of

the company who served as foremen and who drove him to ever harder manual labor under constant

beatings and the threat that he would be reported to the SS and executed for sabotage. Dr. Bartl asserted

that he suffered constantly from hunger and thirst, and that his weight was reduced to 86 pounds. By being

forced to do welding without protective glasses his eyes sustained irreparable damage and because of the

heavy toil his health was permanently ruined. He alleged that the Heinkel directors were in a position to alter

the inhuman conditions but did nothing to mitigate his suffering and specifically encouraged and ordered the

abuse of camp inmates. He complained that although the company had paid the SS a monthly sum of $33

(RM 132) for his services, the amount was inadequate and no part of even that sum had been turned over to

him. The company accordingly had been enriched by his labor, he sued, therefore, for loss of wages as well

as for pain and suffering he endured through the company’s neglect, requesting a partial judgment of $2500.

The defendant Heinkel denied all the allegations of the complaint and resisted all attempts at settlement.

The company maintained that only SS was responsible for the condition of the inmates, that only the state

could be held liable (and the government was interpleaded as a party defendant), that there had been no

abuse of the plaintiff by the company’s employees, that under German indemnification laws Dr. Bartl had

already received his profession and the permanent damage to his health, and that thereby Bavaria was

subrogated to any other claims he might have. In any case, the defendant argued, the statute of limitations

barred all claims by the plaintiff.

 

When this case was heard in the first instance, the local district court held that the plaintiff’s claim for

damages was justified because the defendant had indeed been unjustly enriched. The other demands were

dismissed. The Heinkel company appealed to the Appellate Court (Oberlanesgericht) in Stuttgart which

dismissed their appeal and held further that the plaintiff’s claim for payment for his pain and suffering was

also justified. Heinkel then appealed to the Federal Supreme Court (Bundesgerichtshof) in Karlsruhe on the

procedural grounds that the Appellate Court had not been properly reconstituted, affirmed its first decision in

a thirty-two-page judgment that set forth in detail its view of the facts and the law. [4]

The Stuttgart Appellate Court held that the plaintiff’s claims did not pass to the State of Bavaria which had

made payments to him under the German indemnification laws since no payments had been made for the

forced labor or for pain and suffering, and the special indemnification laws could not eliminate any further

rights which the plaintiff had under German civil law. The plaintiff, even thought against his will, had served

the interests of the Heinkel company which accepted those services. The present claim could be classified

under the category of negotiorum gestio, “acting for another without his mandate” (auftraglose

Geschäftsfurüng) to which a thirty-year period of limitations would apply. Although claims for wages would

ordinarily be barred in two years [5] the forced labor of a concentration camp inmate was not to be put in the

same category. There was no danger that the loss of evidence, which justified the rule in an ordinary

commercial transaction, would apply under such circumstances.

 

The Appellate Court confirmed as a matter of fact that the plaintiff had been beaten, mistreated and

threatened at least by inmate supervisors. The three judges concluded that the company had the power and

therefore the duty to prevent inmate supervisors from beating other inmate laborers and that the

management was obliged to do what it could to minimize the suffering of the workers and to prevent the

addition of any unnecessary burdens.

 

“This natural humane duty toward those persons given over to their control is not only a moral but also a

legal obligation. In both directions, in making things easier and in preventing additional burdens, the

managers of the company did next to nothing.” [6]

The claim for damages for pain and suffering was therefore held to be justified. According to the Appellate

Court, an action based on pain and suffering had to be asserted within three years but the period did not

begin to run until the plaintiff knew the identity of the responsible party and no one could reasonably be

expected to know the rights and liabilities connected with the claims of forced laborers until there had been a

court decision on the subject. The plaintiff only learned of such a decision in 1958. [7]

By holding that the laborer had a valid claim based on unjust enrichment for lost wages founded on implied

contract and damages for pain and suffering, and by espousing strong moral principles in a matter affecting

large numbers of potential claimants, the Stuttgart Court aroused considerable public attention, [8] and

perhaps some apprehension on the part of the companies that had employed slave laborers. The Heinkel

company promptly appealed the Stuttgart decision to the Federal Supreme Court.

 

The Supreme Court had previously been confronted with the question whether concentration camp laborers

could assert valid claims against their company employers. All prior cases had involved non-German

nationals as plaintiffs. The Supreme Court had in each case held that no decision could be reached on the

merits of the claim until there was a final reparations agreement between the plaintiff’s government and

Germany. The ratio decidendi was that Article 5 of the London Debt Settlement Agreement of February 27,

1953 [9] provided that claims of Allied nationals asserted against the Reich of persons or agencies acting on

its orders would have to be deferred until a final reparations agreement with Germany had been signed. The

Court decided that claims of forced laborers were in the nature of reparations claims and that the companies

that used concentration camp labor were in effect acting as agents of the Reich, [10] and was able to

dismiss those cases on the theory that the actions had been started prematurely and were therefore

“unjustified at this time” (zur Zeit unbegründet). [11] Unhindered by the adage, “justice delayed is justice

denied,” the Court considered itself bound to postpone indefinitely the claims of Allied nationals against their

former employers even though it was obvious that perhaps none of the former camp inmates might survive

long enough to witness a final reparations agreement between all the Allied powers and the new German

government. On the other hand, by postponing the possibility of obtaining any adjudication on the

substantive merits of slave labor claims until a final reparations agreement is signed, the Supreme Court

placed a permanent cloud over the assets of the companies concerned.

 

In the light of the previous postponement of the claims of Allied nationals, it was therefore particularly

tantalizing to see how the court would react to the ruling of the Appellate Court in the Heinkel case upholding

the claim of the German national, Dr. Bartl. Should the Supreme Court decide that a German national

possessed rights greater than those of an allied national, the decision would surely encounter both

constitutional [12] and treaty [13] objections. The Supreme Court, however, found no difficulty in meeting the

challenge. It declared that it had jurisdiction to try the issue but without going into the substantive merits of

any of Dr. Bartl’s claims dismissed all of the claims of the plaintiff as barred by the statutes of limitations.

In a strictly formalistic opinion, the Court noted that claims for wages were barred after two years, [14]

commencing at the time the claim arose. [15] This period applied to all claims arising out of a working

relationship, including claims for unjust enrichment of “acting for another without authorization,

(Geschäftsfuhrung ohne Aüftrag). A four-year statute might be applicable if the claim related to payments of

a recurring nature but Dr. Bartl would still be barred. Claims for mistreatment were subject to a three-year

statute of limitations. [16] That period began to run when the injured party learned who was responsible. The

defendant did nothing to prevent the plaintiff from commencing the action; hence there was no reason why

the statute should be tolled. The Supreme Court did not agree with the Appellate Court’s ruling that

concentration camp labor was an exception to the ordinary civil law situation. Disregarding the uncertainty

they had created by deferring the claims of allied nationals, the Supreme Court now stated:

“Any other interpretation which would take into account the special circumstances of this case would lead to

a great deal of legal uncertainty and would hardly be justifiable in a commercial society.” [17]

The high court concluded that the plaintiff knew he had been working for the Heinkel company, and as a

lawyer should have known how to locate the defendant corporation and to determine whether he had a valid

suit under ordinary principles of German civil law. [18] The fact that the Appellate Court judges in Stuttgart

were unaware of the law in this area, based at least on the fact that they were reversed, did not deter the

Karlsruhe judges from concluding that Dr. Bartl should have known what the law was even before the

Supreme Court rules upon it. As consolation to the plaintiff the Court noted that any changes would have to

be made by the legislature and not by the courts. [19]

Thus, according to the Federal Supreme Court all claims brought by former concentration camp inmates

against the companies which used them as forced laborers are barred; for Allied nationals it is too soon, and

for German nationals it is too late. The companies which exploited them are now legally immune.

Under German procedure, the loser of a lawsuit is obliged to pay court costs including all attorneys’ fees and

expenses of his adversary. For eight years Dr. Bartl waged a courageous battle to obtain a modicum of

compensation for the abuse the courts clearly recognized he had suffered at the hands of the Heinkel

company or its employees. By virtue of the Supreme Court’s reversal of all the lower court decisions it is

now Dr. Bartl, the disabled and impoverished former concentration camp inmate, who must pay his erstwhile

custodians.

 

* Member of the New York Bar.

[1] Abolition of Forced Labour Convention of 1957, cited in 19 THE RECORD OF THE ASSOCIATION OF

THE BAR OF NEW YORK, NO. 8, pp. 18-19 (December 1964).

[2] Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery;

cf. supra note 1 at 15.

[3] Dr. Edmund Bartl vs. The Firm of Ernst Heinkel, A.G., decision of June 22, 1967, not reported at date of

publication.

[4] 10 U-8/1965, 12 S 334/59, OLG Stuttgart, May 19, 1965.

[5] BGB § 196(9).

[6] Cf. supra note 4 at 30.

[7] The Court referred to Wollheim vs. I.G. Farben, File 5 U-1222/53, June 10, 1953, which was, however,

appealed to the OLG in Frankfurt, and upon urging of the Appellate Court a settlement was reached in 1957.

Similar out-of-court settlements were later made with the Krupp Company, AEG, Siemens, and Rheinmetall

A.G.

[8] DER SPEIGEL, Issue No. 20 1964, pp. 59, 60.

[9] [1953] BGBI II 331.

[10] Decision of Feb. 26, 1963—VI ZR 94/61 (Frankfurt/M) LM AuslSchuldAbk Nr. 15-RZW 1963, 525—

MDR 1963, 492, involving a Polish national; decision of March 17, 1964, VI ZR 186/71 (Berlin), involving a

United States national who was a Czech at the time she was sent to the concentration camp.

[11] The decision of the Court was influenced by literature cited; by the book of GURSKI, DAS ABKOMMEN

ÜBER DEUTSCHE AUSLANDSSCHULDEN (2d ed. 1955) and Féaux de la Croix, Schadenersatzansprüche

ausländischer Zwangsarbeiter, 1960 NJW, 2268. Both works were persuasively criticized by Martin Domke,

Individualansprüche für völkerrechtliche Deliktsaftung?, 1962 SCWEIZERISCHE JURISTEN-ZEITUNG 4.

[12] The Basic Law of Germany requires equality of treatment for all nationals. Cf. case involving a Polish

national against I. G. Farben (decision of Feb. 26, 1963, LG Frankfurt a.M.). In two parallel cases involving

two United States nationals, Irene Reinharcz and Judith Buls of New York against the Rheinmetall Company

of Berlin, which had been rejected by the Supreme Court as premature, (decision of March 17, 1964), an

appeal had been filed to the Federal Constitutional Court on May 4, 1964 on the grounds that the BGH

decision violated Art. 3 of the German Basic Law.

[13] The Convention on Relations Between the Three Powers and the Federal Republic of Germany of May

26, 1952 provided in Chapter X that there would be no discriminatory treatment against non-German

nationals.

[14] BGB § 196(9).

[15] BGB § 189(a).

[16] BGB § 852, para. 1.

[17] Cf. supra note 3 at 10.

[18] BGB §§ 31, 821, 823. Whether a different conclusion would have been reached if the plaintiff were not a

lawyer is dubious.

[19] The Court referred to the law which extended the period of limitations for the prosecution of war

criminals, Gesetz über die Berechnung strafrechtlicher Verjährungsfristen vom 13. April 1965, 1965 BGBI

I.315. Several German industrialists has been prosecuted and convicted as war criminals for their abuse of

slave laborers. See, e.g., TRIALS OF WAR CRIMINALS BEFORE THE NURNBERG MILITARY

TRIBUNALS (US Government Printing Office 1946-) Vol. 6, US vs. Friederich Flick et al.; Vol. 7, US vs.

Krauch el al., “The I. G. Farben Case,” Vol. 9, US vs Alfried Krupp et al. No consideration was given by the

Supreme Court to the anomalous situation whereby a company manager could be criminally prosecuted for

abusing slave laborers but could both be held civilly liable for the same deeds.

 

 

 

 

 

International Crimes Against the Peace

 

By Benjamin B. Ferencz

published: October 1960

Origins as a Legal Concept

 

All law, whether national or international, civil or criminal, has its roots in precepts of behavior which, if

violated, invoke a sanction from the community that has been offended. In earliest times of maxims conduct,

usually attributed to divine origin or inspiration, defined the canons of permissible and impermissible

deportment. Codes of law that antedated the Christian era are associated with names such as Menes, who

governed ancient Egypt some three thousand years before the birth of Christ; Hammurabi, who ruled

Babylonia a thousand years later; Moses, who lived in the thirteenth century BC; Draco and Solon, who

guided Greece in the seventh century BC; and, a few centuries later, Mencius and Confucius in China and

Manu in India. The mandates applied to fairly homogeneous groups living within a relatively compact

territorial jurisdiction. Those who breached the commandments faced the wrath of the divine authority,

communal ostracism, and a wide variety of local sanctions. Relations between competing peoples were

governed by pacts. The agreements were sustained by mutuality of interest and enforced by the power of

armed might. Warfare was governed by principles of morality and custom. The earliest origins of

international law and of codes governing crimes against the peace can be traced to the rules for the conduct

of war.

 

The legal codes of the Roman emperor Justinian in the sixth century AD helped maintain peace throughout

the vast Roman empire. Before war could be declared, the Roman fetial college, a group of experts, was

required to investigate and determine whether the dispute could be justly resolved without recourse to arms.

The fetials then reported their findings to the Roman Senate. For a war to be lawful, it had to have a just

cause, be declared in accordance with traditional ritual, and be conducted and concluded in a just way. Such

were the teachings of scholars like Cicero and St. Augustine, who studied the customs going back to the

amphictyonic councils, which prescribed the rules for the ancient Greek city states. Practices that have been

followed over a long period of time were seen to reflect an obligatory norm of behavior. Those who

transgressed the customary or natural law of nations were committing what would later be known as

international crimes.

 

One of the earliest offenses against the law of nations was the crime of piracy. The brigands who preyed on

vital trade and commerce were viewed as enemies of all mankind, and were deemed punishable by any

captor. During the Crusades it was considered lawful to slay infidels who remained outside the folds of

Christianity. When the New World was discovered and Spain spread its power throughout the Americas, and

greed and Christian zeal of the conquistadors led to the wholesale massacre of the native Indians. Spanish

theologians began to reexamine the cruel actions of their compatriots in the light of God’s universal laws.

Francisco de Vittoria (1480-1546), professor of theology at the University of Salamanca, warned the

differences of religion, extension of empire, and personal glory were not acceptable reasons for waging war.

Focusing on the definition of a just war, he taught that even in self-defense it was necessary to do as little

harm as possible to the assailant. According to Vittoria, no one was obliged to serve in an unjust war, even if

commanded to do so by the sovereign, and those who waged unprovoked aggressive war would have to

make reparation. The lectures of Vittoria, published 150 years after his death, began to draw attention to

such international legal problems as the definition of aggression, the permissible limits of self-defense,

restraints on wanton destruction, and the limits of military necessity. Vittoria emphasized the responsibility of

heads of state and asserted that the orders of superiors did not constitute an excuse for illegal conduct. His

views, based on religious morality, became an important stepping-stone in the development of international

criminal law.

 

Among the most notable sixteenth- to eighteenth- century writers who dealt with the legal limits of warfare

and the rules of war were the Italian jurist Alberico Gentili, the Spaniard Francisco Suarez, the German

Samuel Pufendorf, and Emerich de Vattel of Switzerland. The most outstanding was the Dutch jurist Hugo

Grotius who published his famous treatise De jure belli ac pacis libri tres (“The Law of War and Peace in

Three Books”) in 1625. According to Grotius, those who made war for gain or other wrongful intent deserved

conviction; those who commenced a war unlawfully were responsible for the foreseeable consequences of

their aggression; and even generals and soldiers who could have prevented the harm would be held to

account. Because of the brilliance of his perceptions and presentations, Grotius has frequently been called

the father of international law.

 

The Peace of Westphalia of 1648, which ended the Thirty Year’s War, is often viewed as the beginning of

international law, since it replaced the hierarchic order of the Middle Ages by a loose secular confederation

of many independent nations, theoretically kept in check by a balance of power. In actuality, however, no

precise date can mark the change that was gradually taking place to meet the needs of a gradually

expanding international society.

 

The industrial revolution, the growth of American democracy, and the social and political ferment in Europe

at the turn of the nineteenth century ushered in a new era of humanitarianism. In the United States,

consideration for the common man lead president Abraham Lincoln to seek new laws that would minimize

the sufferings of both sides during the Civil War. At Lincoln’s request, Francis Lieber drafted his “Instructions

for the Government of the Armies of the United States in the Field.” The Lieber code of 1863, based on the

principled derived from early Roman doctrines, became the model for the Hague conventions of 1899 and

1907 and for later revisions by the International Red Cross, all of which defined the lawful limits of military

conduct. Members of the armed forces, from commanders to ordinary soldiers, were obliged to comply with

the laws of humanity and the dictates of the public conscience. Those who violated the rules, which were

accepted as binding by many states, ran the risk of punishment.

 

Crimes against peace in World Wars I and II

The outbreak of World War I brought the first major test of efficacy of the new laws of war. When Turkey

began to massacre its Armenian minority in 1915, Allied governments denounced the slaughter as a crime

against humanity and warned that the persons responsible had committed a criminal offense for which they

would be held to account. Atrocities committed by German armed forces caused a British lawyer, Hugh

Bellot, to demand that the perpetrators be brought to trial before an impartial criminal tribunal on the charge

of having violated the laws of war and of humanity. Germany’s aggression in violating the neutrality of “Little

Belgium” was denounced as a crime. At the Preliminary Peace Conference in 1919, the Commission to

determine the Responsibility of the Authors of the war and the Enforcement of penalties was appointed by

the five voracious powers: France, England, Italy, Japan, and the United States. The commission concluded

that although those who had committed offenses against the laws and customs of war or the laws of

humanity could be criminally prosecuted, the German head of state could not be charged with aggression

since such an act had never before been subject to a criminal indictment. It was recommended, however,

that aggression should be morally condemned and that in the future such grave outrages against the

principles of international law should be punished.

 

The Treaty of Versailles, which brought World War I to an end, provided that the German Kaiser be forced to

stand trial before an Allied high tribunal. Since it was not considered appropriate to charge him with the

crime of aggression, Article 227 of the treaty provided that he be tried for “a supreme offense against

international morality and the sanctity of treaties.” Those who had committed atrocities against Allied

nationals were to appear before Allied military courts. But the Kaiser found asylum in Holland and was never

extradited or tried, and Germany refused to surrender any of the nine hundred persons accused of having

violated the rules of war. The Allies finally agreed to allow Germany to try the accused before its own courts.

War crimes trials were held before the Criminal Chamber of the German Supreme Court at Leipzig. Very few

were charged, fewer were convicted, and many of the criminals managed to escape. It was a manifestation

of public determination that certain crimes against international morality should not go unpunished, but the

fiasco at Leipzig also pointed to the need for an improved system of international justice.

After the war, the League of Nations was established to further international peace and security. In 1920 the

League’s advisory Committee of Jurists recommended that a high court of international justice be created to

try crimes against international law. The creation of an international criminal court without a clear criminal

code was considered premature, and the recommendation of the jurists was not accepted. The world had

been put on notice, however, that those responsible for acts of aggression and for violation of the rules of

war might one day have to face a penal tribunal to answer for their crimes.

 

During the 1920’s, many outstanding scholars urged that a court be created to deal with international crimes

against peace. Among the most articulate and persistent were Vespasien Pella, Donnedieu de Vabres,

Quintiliano Saldana, Megalos Caloyanni, and Raffaele Garofalo. Leading international law societies,

including the International Law Association, the American Society of International Law, and the Inter-

Parliamentary Union, also supported the idea of an international penal tribunal, but their views received

scant attention.

 

On 1927, the Assembly of the League of Nations declared that a war of aggression was an international

crime. Thus, the process of codifying international criminal law had begun, but the establishment of an

international court with jurisdiction to determine whether the code had been violated was not yet seriously

contemplated.

 

Widespread demand for an international penal court arose in 1934, when King Alexander of Yugoslavia, on

a state visit to France, was assassinated by a Croatian nationalist. A committee of the League drafted a

convention to repress terrorism, which provided that no asylum could be granted to assassins. The offender

would have to be tried where he was apprehended, or be extradited to the country where the crime had

been committed. As an alternative, the offender could be tried before an international criminal court of five

judges selected from a list of independent experts by the parties to the convention. The details of the court’s

composition, rules, and procedures were set forth in the draft, whose proposals were debated at length and

went through several revisions. But by 1937, when public outrage had cooled, only India was prepared to

ratify the convention. None of the thirty-six states that had participated in its drafting was ready to be bound

by an international criminal court. Having failed to learn from the past, most nations would soon find

themselves victims of a much more devastating form of terrorism – an international war of aggression.

 

The outbreak of World War II brought with it new breaches of the peace: atrocities and violations of the laws

of war on a scale never before witnessed in human history. As early as 1942, Allied leaders warned the

Germans that they would have to answer for their crimes. Legal experts in countries which had fallen to the

German forces demanded that those who had committed aggressive war and crimes against humanity be

punished regardless of any alleged defense of superior orders. The idea of an international criminal court

was revived. Hersch Lauterpacht of Oxford University and Hans Kelsen of the University of California argued

that such a court was essential to cope with war crimes and to bring about an essential reform of

international relations. When it became clear that German defeat was imminent, representatives of the Allied

powers began to consider what should be done with those individuals who flouted international law by

crimes on indescribable cruelty and magnitude. The British and Russians favored summary executions of

the major German war criminals, but it was the view put forward by the United States that ultimately

prevailed: no one could be condemned without a fair trial.

 

After the defeat of the Axis powers, the European Allies met in London and agreed upon a charter that

established the International Military Tribunal (IMT), composed of judges from France, Great Britain, the

Unites States, and the Soviet Union, and empowered to try the major German war criminals. The tribunal

was given jurisdiction over three categories of crimes: (1) crimes against peace, which meant the

preparation or waging of a war of aggression; (2) war crimes, or violation of traditional laws and customs of

war; and (3) crimes against humanity, such as extermination, enslavement, and other inhumane acts

committed against a civilian population. The magnitude of the crimes and the fact that they were committed

with the support of a government distinguished crimes against humanity from ordinary felonies. In 1945,

twenty-four Nazi leaders, defended by lawyers of their choice, faced a year-long public trial in the

courthouse at Nuremberg.

 

The IMT held that its charter was an expression of previously existing international law and that waging a

war of aggression was the supreme international crime. In finding many of the defendants guilty, the tribunal

denied that the accused had been charged unfairly under ex post facto law, a doctrine holding that there

should be no punishment for an offense which was not a crime at the time it was committed. In the case of

the Nuremberg defendants, however, the tribunal concluded that the high position of the accused and the

nature of their crimes were such that they must have realized the illegality of their actions. It was not unjust,

therefore, to hold them personally responsible. Justice Robert Jackson of the United States Supreme Court,

who was the chief American prosecutor and the main proponent of the Nuremberg charter and the IMT trial,

argued convincingly that the time had come for the law to take a step forward. The tribunal agreed that the

law had to respond to the needs of a changing world.

 

Twelve war crimes trials against other major offenders were held in Nuremberg subsequent to he first trial

before the IMT. Leading members of German ministries, professions, industry, security services, and military

branches were accused of complicity and responsible for crimes against peace, war crimes, and crimes

against humanity. Subsequent proceedings at Nuremberg clarified and reaffirmed the emerging principles of

international law: (1) aggressive war was a crime; (2) crimes against humanity could be committed by a

state even against its own nationals and even in times of peace; (3) a head of state could be tried; (4) the

defense of superior orders was not absolute but might be considered as a mitigating factor; and (5)

accomplices and accessories who joined and organization knowing of its criminal purposes could be held to

legal account.

 

When the war in the Far East came to an end, twenty-eight Japanese leaders were charged with

aggression, war crimes, and crimes against humanity, pursuant to a proclamation based on the principles of

the IMT charter. In 1948 all of the defendants were convicted, but the opinions of several of the Allied judges

expressed doubt whether aggressive war held criminally responsible for having failed to prevent the

commission of war crimes by the troops. Defacto problem, the Nuremberg and Tokyo trials established

important precedents for the further growth of international criminal law. When the trials were completed the

war crimes courts were dissolved, and further efforts to deal with crimes endangering the peace and security

of mankind passed to the United Nations, the successor of the League of Nations.

 

Actions by the United Nations

The first General Assembly of the United Nations, on December 11, 1946, unanimously affirmed the

principles of international law that had been recognized by the Nuremberg charter and judgements. The

United Nations further resolved to formulate a comprehensive international criminal code of offenses against

the peace and security of mankind. At the same time, the assembly resolved that a convention should be

prepared to help deter a repetition of the particularly heinous crime of genocide. The first draft of its

convention defined genocide as a criminal act directed against a racial, national, linguistic, religious, or

political group for the purpose of destroying it in whole or in part, or of preventing its preservation or

development. Individual offenders, regardless of rank or of orders from superiors, could be held responsible

for the crime. Any state would have jurisdiction to try an apprehended suspect, and no political asylum could

be granted to persons charged with the crime of genocide. If a state, because of complicity or for political

reasons, was unwilling to try the suspect, he would have to be extradited or handed over for trial by an

international criminal court, whose composition and procedures were specified in the draft convention.

By the time the genocide convention was debated in 1947, the wartime unity of the Allied powers has

already begun to erode. The cohesion that had made it possible to reach quick agreement on the

Nuremberg charter and the INT trial had been replaced by distrust and hostility between the United States

and the Soviet Union. No one objected to condemning genocide in principle, but the establishment of a court

to punish the offense was quite another matter. The Soviet Union and its allies viewed the creation of an

international criminal court as an infringement of national sovereignty. Great Britain and other Western

states argued that this effort to establish an international criminal jurisdiction was premature and even

dangerous, since it might provide guidance to those who sought to evade the law. France was one of the

few states to recognize that without an enforcement agency, a convention to prevent genocide would lose

much of its impact.

 

The genocide convention that was finally adopted (Convention on the Prevention and Punishment of the

Crime of Genocide) left the creation of the court to the discretion of the signatories. The United States

deferred ratification since, as it argued, American penal laws provided ample protection against commission

of such an outrageous offense. In 1947, the problem of establishing an international criminal court was

referred to the International Law Commission (ILC), a multinational group of experts assembled by the

United Nations for the progressive codification of international law. The ILC was also assigned the task of

drafting a code of offenses against the peace and security of mankind.

 

Some progress toward constraining acts of international violence was made in 1949 when the four Geneva

conventions were signed, providing for improved standards of conduct in the wartime treatment of prisoners,

the wounded, and civilians. Grave breaches of the convention were made punishable, but the enforcement

mechanisms were not defined and thus remained subject to national jurisdictions. In 1951 and 1953 the

possibility of creating an intentional criminal jurisdiction was considered by two different special committees

of the United Nations. Detailed statutes and rules for such a court were formulated and debated, but in the

cold-war atmosphere of that time, no consensus could be reached. A special committee of the United

Nations that sought to define aggression encountered similar obstacles.

By 1954, the ILC had completed its third draft of an international crime code (United Nations, 1954). The

draft code outlined thirteen crimes punishable under international law as offenses against the peace and

security of mankind. These included any act or threat of aggression, preparation for the use of armed force

against another state (except in self-defense or pursuant to a decision of a competent United Nations

organ), organization or support of armed bands aiming to enter the territory of another state, encouragement

of terrorist acts abroad, any breach of armaments restrictions that had been accepted by treaty, annexation

of foreign territory, genocide, violations of the laws and customs of war, and any conspiracy, incitement, or

attempts to commit such actions. However, the international political atmosphere was not at this time

conductive to agreement by the major powers, and in addition, the code needed a more explicit definition of

the crime of aggression. Consequently, the United Nations decided to spend further work on the code until

such a definition could be found.

 

The Nuremberg principles were reinforced by later resolutions in 1967 and 1968, which provided (1) that

statuary time limitations could not apply to bar prosecutions against persons who and committed war crimes

against humanity; and (2) that major war criminals should be denied political asylum (United Nations, 1968).

At this time there was also a growing feeling, particularly among the newly independent nations, that certain

violations of human rights should be added to the list of international crimes jeopardizing the peace. Flagrant

forms of racial discrimination such as the apartheid practiced in South Africa were denounced in 1965 and

1966 as crimes against humanity. In 1970, the illegal seizure of aircraft was labeled an international crime

comparable to piracy, and the use of mercenaries was declared illegal. In 1973 the United Nations adopted

a convention to prevent and punish crimes against internationally protected persons, including diplomats.

Omissions and ambiguities in the United Nations declarations and conventions dealing with international

crimes impaired their effectiveness, but these documents served as manifestations of a growing popular

sentiment that certain acts should be criminalized and punished. Nations that tortured and persecuted their

own citizens because of race, religion, or political opposition found themselves publicly denounced by

nongovernmental organizations for violating the new human rights standards. International criminal law and

human rights law were emerging as new legal disciplines.

 

In the new atmosphere of détente prevailing during the early 1970s, the United Nations at last arrived at a

consensus definition of aggression in 1974. The use of armed force by a state against the territorial integrity,

sovereignty, political independence of another state was outlawed. The first use of force would give rise to a

presumption of aggression. Attack, blockade, invasion, or the sending of armed forces into another state

were some of the indicators of aggression. Many ambiguities were deliberately written into the definition as

the price of agreement. Several states insisted that those seeking self-determination, freedom, and

independence should remain legally free to seek their goals by every possible means. Final authority to

decide whether aggression had taken place was left to the United Nations Security Council, where the major

powers might exercise their veto power.

 

Despite its imperfections, the existence of a definition arrived at by consensus was another reflection of the

universal to bring illegal acts of warfare under international legal control. The definition also cleared the way

for resumed work on an international penal code and criminal court.

 

The challenge of the future

By 1980, a quarter of a century had passed since the international criminal code and court had been actively

considered by the United Nations. During that interval may peoples of the world had shed their colonial

status and become independent members of the family of nations. These newcomers wanted to share in all

decisions, and their perceptions frequently differed from those of the more developed countries. When the

debate on a draft criminal code was renewed at the United Nations, it was felt that wrongs which had been

universally condemned since the code was first drafted, such as terrorism, apartheid, the use of

mercenaries, the illegal seizure of aircraft, crimes against diplomats, and the taking of hostages, should be

included in the new document. Several states suggested that a number of transgressions not yet classified

as crimes should be added to the revised list. These included breaches of treaties dealing with nuclear and

biological weapons, pollution of the environment, economic crimes, torture, and various human rights

violations. Some of the more powerful Western states and their allies were inclined to preserve the status

quo, rather than consider a new code or court. The overwhelming majority of states, however, argued that

the interests of world peace required codification of the emerging norms of international behavior.

 

Legal experts from various parts of the globe continued to call for a criminal code and court to cope with

international crimes. An international criminal code, drafted in 1979 after many years of study by the

International Association of Penal law, listed (in addition to political offenses) such crimes as trafficking in

narcotics, counterfeiting, participating in the slave trade, bribery, and the theft of national treasures. A

widespread increase in acts of terrorism during the mid-1960s heightened the awareness that a new

mechanism was needed to deter disruptions of national and international security. In a dynamic world

consisting of more than 150 sovereign states in varying stages of economic, political, and social

development, it was clear that these differences could turmoil and breaches of the peace. What was viewed

by victims as unjustified crimes was frequently heralded by its perpetrators as a justifiable struggle for

freedom, self-determination, or some equally laudable objective. Without a common legal code defining the

limits of permissible behavior, and without an impartial court to determine whether this code had been

violated, there was no objective way to distinguish terrorism from heroism.

 

The international community is slowly evolving toward community. Practices that have been ingrained for

millennia will not be altered quickly or easily, but the direction of change is discernible. In ancient times the

peace of society depended upon vague moral codes. After each of the two world wars, nations strove to

create a rule of law that would restrain aggression and deter some of the cruelties engendered by war. The

Nuremberg judgments, unanimously affirmed by the United Nations, declared as a principle of law that all

persons are entitled to protection against aggression and to the preservation of their fundamental human

rights. Subsequent United Nations resolutions and conventions manifested a growing awareness that the

peace and security of all peoples should be protected by law.

 

Despite inordinate delays, unbridled sovereignty is gradually being replaced by common efforts, however

imperfect, to find acceptable and humane solutions to the problems that face the interdependent world

community. This trend is evidenced by the creation of such relatively new institutions as the courts of human

rights in Strasbourg and San Jose, Costa Rica, and the infant European parliament. These, together with

regional associations and the United Nations agencies deal with world health, labor, refugees, women,

children, pollution control, economic development, armaments limitations, space, and the environment,

affect the lives of every human being.

 

What is needed to maintain the peace is acceptance, particularly by the powerful nations, of a new system

with clear-cut standards of acceptable international behavior. Such a system would require the peaceful and

compulsory settlement of disputes, as well as appropriate deterrence of those who seek to breach the

established rules. The enactment of a code of offenses against the peace and security of mankind is on the

United Nations agenda.

 

Nations stand before the challenge of establishing a more rational system of world order, in which code,

court, and enforcement join together to help ensure respect for the law. It is not merely a matter of idealism,

but of self-interest and survival. No one can say with certainty whether human intelligence will prevail

against the ever-increasing risk of thermonuclear self-annihilation. But by defining, prohibiting, and punishing

crimes against peace, international criminal law can play an important role in helping to maintain a more

secure and tranquil world society.

 

 

 

 

 

Restitution to Nazi Victims: A Milestone in International Morality

 

By Benjamin B. Ferencz

published: March 1957

source: Two Generations in Perspective, H. Schneiderman, Ed., Monde Publishers

 

 

Many of the great movements of history are guided by the inspiration and determination of a few devoted

men. The scope and complexity of contemporary life, however, compel a concert of action in which the role

of the individual tends to be obscured. It is not the purpose here to place a laurel crown on the brow of any

one individual. The work itself must serve to reflect his achievement. The singular endeavor of seeking

restitution for wrongs committed against Jews has already carved its place in Jewish history. This program

stands as a tribute to the handful of resolute Jewish leaders whose faith and determination made it possible.

When World War II had ended and the fear and anguish had somewhat abated, men could set their hearts

and minds to healing some of the profound wounds which remained. During the dozen-year reign of the

“Thousand-Year Reich,” European Jewry had been decimated. The intellectuals, the artists, and the

communal leaders had been destroyed. Not even the innocent youth, the stalk of Jewish life, had been

spared. Of those who could not flee, only a tattered remnant survived the fanatic Nazi scourge.

 

With diabolical precision, under the cloak of law, or through mere seizure, duress, or terror, Jews had been

systematically divested of their possessions. Those who had escaped with their lives were now scattered

throughout the world, often living in adversity and need. It was evident that some means would have to be

found to restore to the former owners, of their heirs, the property of which they had been so cruelly

dispossessed. Nor could the possessions of those who, together with their heirs, had lost their lives in the

Nazi infernos, be allowed to remain in the hands of their wrongful possessors. The leading Jewish

organization in the United States, remembering the biblical question “Hast thou killed and also taken

possession?”, insisted that these heirless assets would have to be retrieved in order to help reconstruct the

shattered lives of those who had survived. This great humanitarian principle was embodied in the first

restitution law passed by the United States Military Government authorities in Germany.

 

On March 31, 1946, under the provisions of this law, the Jewish restitution Successor organization, referred

to below as JRSO, was designated as successor to heirless and unclaimed property. In the same year, the

Organization was incorporated under the New York State membership corporation law. The incorporators

were: The American Jewish Committee; the American Jewish Conference; the American Jewish Joint

Distribution Committee; the Broad of Deputies of British Jews; the Commission on European Jewish Cultural

Reconstruction; Council for the Protection of the Rights and Interests of Jews from Germany; the Jewish

Agency for Palestine; and the World Jewish Congress.

 

Later the following organizations were co-opted: Agudas Israel World Organization; the Anglo-Jewish

Association; the Central British Fund; the Conseil Representative Israelite of France; and the

Arbeitsgemeinschaft Sueddeutscher Landes-verbaende Juedischer Gemeinden.

 

In accordance with an agreement reached at the time of the incorporation of the JSRO, the presidency and

the chairmanship of the executive committee alternate annually between a representative of the Joint

Distribution Committee and a representative of the Jewish Agency for Palestine, in recognition of the special

role of these bodies as the operating agents of the JSRO. Since October 1949, Monroe Goldwater of the

Joint Distribution Committee and Dr. Israel Goldstein of the Jewish Agency for Palestine have occupied the

offices.

 

Toward the end of 1948, headquarters of the JSO were established in the Bavarian city of Nuremberg

which, ironically, had given its name to the racial laws which divested the Jews of their rights in Germany,

and to the post-war trials Nazi war criminals. Jewish lawyers, who had been forced to flee from Germany,

were recruited from all parts of the world to help search the records for evidence required to retrieve what

had been illegally seized. On the basis of such evidence, each of the many thousands of claims had to be

pa9instakingly negotiated with the current German possessor, or adjudicated by German administrative

agencies and courts under the watchful eye of an American Appellate Tribunal. These proceedings,

touching the private pocket-nerve of persons long in possession, encountered bitter opposition and hostility.

The JSRO was forced to turn the bulk settlements with the State governments as the only feasible means of

expediting the recoveries. Upon payment of an agreed sum by the German state governments, which had

been precluded from obtaining the claims by escheat, obtained them by assignment from the JSRO, and the

state assumed responsibility for settling with the current German holder.

 

These were the years of crucial decision for the JSRO. As the war-time alliance between East and West

crumbled, United States policy toward Germany underwent drastic revision. Those who were formerly

regarded as enemies were now eagerly sought as allies. This reversal brought with it a tendency to forget or

minimize the past. German pressure groups demanded the relinquishment of American controls and the

abandonment of the restitution policy. Constant vigilance became t5he Jewish watchword as the attempted

assaults were successfully repelled.

 

In the United States Zone alone, property worth close to $250,000,000 was restored to former owners, now

living in sixty different countries throughout the world. In addition, heirless assets worth over $25,000,000

were recovered. These proceeds were used to provide shelter for refugees crowding tent camps in Israel, to

aid needy Jews still living in Germany, hard-core medical cases, the aged, the blind and the destitute.

In addition to the rescue of material treasures, the rescue of cultural treasures proved one of the most

gratifying aspects of JSRO work. The Nazis had destroyed the synagogues, libraries and museums of

Europe, after looting them, but much of the loot had been transported to Germany. At war’s end, the United

States army collected these treasures for return to the rightful owners. Acting in collaboration with the

Jewish Cultural Reconstruction, an organization of scholars, the JSRO received over a quarter million

Jewish books which were distributed to yeshivot and other centers of Jewish learning throughout the world.

Almost a thousand Torah scrolls, and more than 10,000 ritual objects, including Hanukah lamps, wine

goblets, pointers and amulets, were salvaged. A total of 700 works of Jewish art, which had been seized by

the Gestapo, were sent to enrich the new museums of Israel. The temples had been destroyed, but these

symbols of a great tradition would be seeds of the regeneration of Jewish life.

 

Besides achieving these satisfying results, the influence of the JSRO overflowed, as it were, into the British

and French Zones of Germany. The JSRO served as the pioneer. In the words of Judge Fred J. Cohen, the

Chief Justice of the Court of Restitution Appeals, it was “the mainspring of restitution.” It was the model for

the creation of similar, and related, Jewish Successor organizations in the British and French zones, where

the pattern was duplicated. In Berlin, the JSRO served as agent for all successor organizations, and

everywhere, except in Soviet-dominated areas, Jewish property was returned. In retrospect, it may fairly be

said that, of all the declared post-war objectives, restitution was least tarnished with time, and the return of

identifiable property as well as heirless assets was successfully completed.

 

As JSRO’s program was developing, however, it became apparent that the return of identifiable property still

provided no compensation to the vast majority of Nazi victims. It was natural that the sharp contrast between

Germany’s striking economic recovery, and the wretched plight of the thousands of impoverished Jewish

refugees, who crowded the barren new settlements of Israel, should arouse a bitter sense of injustice. Those

property-less masses who, for years, had suffered the torments of the Nazi concentration camps, the

widows and orphans who had lost their providers, those who had been cast out of their professions or

businesses, and those who had been permanently disabled remained without redress. A few German

Laender (Provinces) in the American zone had enacted indemnification laws providing small payments to

select categories of claimants for a number of personal losses, but these decrees were too narrow in scope,

too limited in application and too arbitrary in their restrictions to be of help to more than a very small

percentage of the victims. There was need for a general law offering personal indemnity to all individuals

entitled to redress. Israel appealed to the occupying Powers; the plea was ignored by the Soviets and,

though sympathetically received by the West, Israel was reminded that Germany was about to become

again a sovereign state.

 

Before this happened, however, there were indications that the restored State would act favorably on a

similar plea. On the eve of the Jewish New Year in 1951, the German Chancellor, Konrad Adenauer, in a

solemn statement before the German parliament, publicly acknowledged that “unspeakable crimes were

perpetrated in the name of the German people which impose upon them the obligation to make moral sand

material amends.” He announced that “the Federal Republic is prepared, jointly with representatives of the

Jewry and the State of Israel, which has admitted so many homeless Jewish refugees, to bring about a

solution of the material reparations problem in order to facilitate the way to a spiritual purging of unheard-of

suffering.” For the first time in history, the Jewish people were to see their representatives sitting at a

conference table with the representatives of the successor to a government which had systematically sought

to exterminate the Jews.

 

In order to promote the implementation of Adenauer’s suggestion, twenty-three leading Jewish organizations

established the historic “Conference on Jewish Material Claims Against Germany,” on October 25, 1951, in

New York City. (This organization will hereafter be referred to as the “Conference.”) The chairman was Dr.

Nahum Goldmann, head of the Jewish Agency for Palestine, who became the architect of the reparations

movement. Jewish public opinion was sharply divided: many, their hearts filled with pain, and distrust of

Germany seared into their memory, felt that meeting with the German government could bring only dishonor

and disillusion; others, whose sense of pride was not stronger than their sense of justice, were persuaded

that the needs and rights of the victims were decisive and that there was morality in refusing to seek

compensation in accordance with normal standards of law. The final decision, reached not without

apprehension, was in favor of cautious negotiation. A presidium of five persons, who had face and who were

determined not to reject Germany’s offer without trial, was elected to pilot the endeavors. The leaders

selected were: Jacob Blaustein, president of the American Jewish Committee; Frank Goldman, president of

B’nai B’rith; Israel Goldstein, chairman of the Western Hemisphere Executive of the World Jewish Congress;

and Adolph Held, chairman of the Jewish Labor Committee.

 

On the first day of spring in 1952, in the ancient town of Wassenaar, a suburb of The Hague, the Conference

delegation, headed by Moses A. Leavitt, executive vice-chairman of the American Joint Distribution

Committee, presented its claims against Germany. It stood side by side with the State of Israel which made

independent demands on behalf of its citizens and itself. Jewish extremists threatened and attempted to

bomb the meetings which were shrouded in secrecy, and under heavy guard. The negotiations, which were

marked by cold dignity, were difficult and protracted. Disputes arouse about the magnitude of the losses, the

degree and methods of compensation, as well as Germany’s willingness and capacity to pay. Although the

presidium remained aloof from the daily sessions, it was in constant contact with all developments and gave

directions to the deliberations.

 

After half a year of difficult negotiations, those who had believed were vindicated, as the final agreements

were signed in Luxembourg on September 10, 1952. Israel was to receive close to seven hundred and

fifteen million dollars worth of goods within the next ten to twelve years, as collective reimbursement for the

funds it had expended in receiving and resettling Nazi victims. Protocol No. 1, concluded with the Claims

Conference, contained the outline of new laws to be enacted by Germany, giving individual victims and their

heirs the indemnification to which they were entitled for their personal sufferings and losses. Protocol No. 2

provided over one hundred and seven million dollars, to be used by the Conference primarily for the relief

and rehabilitation of the most needy victims living outside of Israel.

 

A uniform Federal indemnification law, providing compensation to large numbers of Nazi victims, was

enacted in the fall of 1953. Well over a million claims, about half of them from Jews, were filed under

Germany’s new law, the administration of which soon bogged down in a maze of bureaucratic red tape and

legalistic formalities. Despite the noble sentiments expressed by the German Chancellor and leading

parliamentarians, many of the petty officials who administered the law evidenced no enthusiasm for a

generous application of its terms. The need for revision, in line with the spirit of The Hague agreements, was

apparent to all. The Claims Conference served as spokesman for the Jewish victims of persecution in

pressing for improvements. In July 1956, the Federal republic enacted a revised law designed to accelerate

and increase the payments to the claimants.

 

It has been estimated that the indemnification laws will cost the Federal republic between hundreds of

thousands of the Jewish survivors of persecution. Of over 400,000 claims disposed of, only half have

already been paid. On the rolls of beneficiaries of social service agencies throughout the world and in the

homes of many thousands of victims, the results of The Hague agreements and Germany’s new policy of

compensation are beginning to be felt.

 

Jewish losses were so enormous and the destruction of life so great, that the enactment of complex

legislation and the adjudication of countless claims on the merits of provable facts provided only a, limited

remedy. The funds received by the Claims Conference were designed to help bridge the gap. By the end of

1955, the Conference had received about twenty million dollars as a consequence of The Hague

agreements. Needless to say, the demands for these funds far exceeded the amount available.

 

Established Jewish social service and welfare agencies in all countries, where Nazi victims had taken

refuge, became the instrumentalities for the distribution of Conference funds. Current needs were met by

grants for cash relief; essential medical aid; care for the aged, the orphaned children, the youth; loan funds,

resettlement aid, vocational training and communal rehabilitation. Special funds were provided for rabbis

and former community leaders, whose readjustment in new communities was particularly difficult. Close to

50,000 Nazi victims with claims against Germany received legal aid through the United Restitution

organization, which was subsidized by the conference to help claima9ints who could not afford private

counsel.

 

On if the most difficult problems confronting the Conference was how to use these funds so that the effect

on Jewish life would be of enduring value. The wise counsel of Israel Goldstein, a vice-president of the

Claims conference since its formation, led to the adoption, by the Conference, of the policy that it look

beyond the needs of the moment and plan fort the distant future. The reconstruction of Jewish life could not

begin and end with the dole. A foundation would have to be laid upon which future generations could build.

In line with this policy, the cultural and educational programs of the Conference looked beyond the horizon.

Jewish schools were enlarged, teachers and itinerant rabbis were employed, books were publi8shed, and

yeshivot were subsidized in widespread areas where the existing communal facilities could not cope with the

demands created by refugee families. Efforts were made to restore the corps of Jewish teachers and

intellectuals by providing grants, scholarships and fellowships to students engaged in independent and

creative Jewish work, in seminaries, colleges, and universities. In an attempt to keep alive the wellsprings of

Jewish cultural inspiration, research and publications in fields of basic Jewish interest were sponsored. The

Conference gave its encouragement and support also to plans for creating a permanent historical record of

the Jewish tragedy and for commemorating victims. The hope was cherished that by striking these sparks

the Conference would kindle new flames of Jewish genius which would illuminate the dark shadows which

had given them birth.

 

The Conference had been in existence for only a few years, yet there is hardly a Jewish organization

anywhere in the world which has not heard its name or felt its influence. Just as no one can tell where ends

the ripple caused by a pebble dropped in a pool, so it is impossible to estimate the limits of the effects of the

work of the Conference. It would be premature to venture any judgment now, but indications are that,

through Germany’s restitution program, a new stimulus has been given to Jewish life.

 

In contrast with the relatively rapid progress of the negotiations of the Conference with the German

authorities, was the slow progress of similar negotiations with the government of Austria. Gay pre-war

Vienna had a Jewish population of over 150,000, constituting one of the most flourishing Jewish

communities in Europe. When, in 1938, the brown-shirted troops of Nazi Germany invaded Austria, the

“Anschluss” was welcomed by jubilant masses of the local population. No time was lost in subjecting the

Jews to Nazi brutalities, plunder and murder. The Jews of Austria suffered the fate of their German brethren

—mass flight or mass extermination. At the war’s end, less than 5,000 remained in Austria. The rest were

dead or scattered over the face of the earth.

 

During The Hague negotiations, the Federal Republic of Germany declined to accept responsibility for the

plunder of Jewish property in Austria. It was the Austrians who had reaped the benefit, they argued, and it

was up to Austria to restore the ill-gotten gains. The Jewish organizations, paralleling the Claims

Conference, formed the “Committee for Jewish Claims on Austria.” A meeting was arranged between

representatives of this committee and the heads of the Austrian state. The historic conference took place on

June 17, 1953 in Vienna. The Austrian Government was represented by Drs. Julius Raab, Chancellor; Adolf

Schaerf, Vice-Chancellor; Reinhold Kamitz, Finance Minister; Karl Gruber, Foreign Minister. The joint

executive board for Jewish Claims on Austria was represented by Dr. Nahum Goldmann, chairman of the

joint executive board, Dr. Israel Goldstein, president of the American Jewish Congress; Jacob Blaustein,

president of the American Jewish Committee; Barnett Janner, vice president f the Board of Deputies of

British Jews; Eugene Weill, secretary general of the Alliance Israelite Universelle and Moses W. Beckelman,

director general of the American Joint Distribution Committee, who headed up the negotiating team, along

with Dr. Nehemiah Robinson, the World Jewish Congress’ outstanding expert on restitution problems, who

was not able to attend this conference.

 

The Committee for Jewish Claims on Austria sought legislation to remove existing discrimination against

Nazi victims who no longer resided in Austria; measures to benefit the existing Jewish Community by

restoring housing, synagogues and cemeteries; and the establishment of a special relief fund to compensate

for the heirless property which had been confiscated and was then still in Austrian hands.

 

The attitude of the Austrian government was most discouraging. It was obvious that Austrian politicians were

more interested in providing benefits to former Nazis who could vote, than to Nazi victims who could not.

The negotiations were protracted, wearisome and vexatious, but the Committee remained adamant. When

agreement was finally reached, late in 1955, it was a far cry from the original expectations and from the

concessions obtained from Germany.

 

Austria agreed to make limited amounts of heirless Jewish assets available to the small local Jewish

community, and to establish a fund of about twenty million dollars to aid needy Austrian Jews living abroad.

By June 1956, applications to the fund were being received, but no payments had yet been made. Despite

this limited success, it is anticipated that substantial numbers of aged and needy Nazi victims from Austria

will benefit from the concessions wrung with great travail from the Austrian government.

 

The history of the Jews is not infrequently a history of persecution. The fearful pattern repeats itself, varying

in location, intensity and time. The reaping of the whirlwind has brought in its wake vengeance, hatred and,

at time, tribute. The restitution programs here outlined have, however, signalized new directions in man’s

eternal quest for civilized human conduct. Never before has there been so comprehensive an endeavor to

provide individual compensation, varying with the specific circumstances of each particular case, for wrongs

such as those heaped upon the Jews of Germany and Austria. The deterrent effort of such a program

cannot now be estimated. The ideal of restoring to each, that of which he ad been unjustly deprived, has by

no means been achieved. Despite shortcomings, however, much has already been gained. There is

moreover, a certain movement which is meaningful beyond the compensation paid, and the resuscitation of

Jewish life. Long after the restitution funds have all been disbursed and their use has been all but forgotten,

the president set will still remain. A rule of law has been introduced in an area where, in the past, the tenets

of fundamental justice were conspicuously absent. In the words of Israel Goldstein: “It brought into being a

new moral standard in international affairs affecting the Jewish people – namely, that no nation can despoil

its Jewish population without being held accountable before the bar of justice. The crimes committed by the

Nazis, however, were dealt with differently. The Jewish people, united in the face of supreme need and

acting in cooperation with Israel, had the dignity to demand restitution and reparation. The amounts total

only a meager fraction of the values which had been despoiled. Moreover, there could be no material

compensation for the lives which have been destroyed. What has been accomplished marks an historic

milestone in international morality.”

 

 

 

 

 

Nuremberg Trial Procedure and the Rights of the Accused

 

By Benjamin B. Ferencz

published: February 1948

source: The Journal of Criminal Law and Criminology, Vol. XXXIX, No. 2,

publisher: Northwestern University Press, April 23, 1948

 

 

He that would make his own liberty secure must guard even his enemy from oppression, for if he violates

this duty he establishes a precedent that will reach himself." [ 1] Since the trial of major war criminals by the

first International Military Tribunal was completed in October 1946, twelve other cases have been presented

in Nurnberg against German nationals charged with the commission of crimes against peace, war crimes,

and crimes against humanity. Judgments have been rendered in eight cases, [ 2] and the remaining four

cases are in various stages of completion. [ 3] These subsequent proceedings against leading conducting in

the name of the United States have in fact been international trials. [ 4] The Military Tribunals enforcing

established international law were constituted in the American zone in pursuance of legislation enacted by

the four occupying powers [ 5] and similar tribunals were established in the other zones of occupation. That

the crimes charged in these proceedings were publishable under preexisting laws has already been the

subject of detailed examination and need not be here discussed. The landmarks in international law, which

have been erected in Nurnberg, rest on a foundation of legal procedure that has satisfied the traditional

safeguards of Continental and American law. The details of these rights and privileges, assuring a fair and

impartial trial to each accused are but little known and worthy of consideration.

The facts that members of a defeated nation are tried in tribunals of the victor creates the need for closest

scrutiny of the proceedings but does not necessarily or by itself render the conduct of the trials corrupt. Such

processes are as old as war itself and have been conducted by the United States since George Washington

ordered Major Andre tried as a British spy. [ 6] Though the Nurnberg Tribunals, being international courts,

are technically not bound by the laws of the United States, it is significant to note that the Supreme Court

has recognized that the establishment of Military Tribunals to punish offenses against the Law of Nations is

in full accord with Articles I and II of the United Sates Constitution. The Court pointed out that:

“An important incident to the conduct of war is the adoption of measures by the Military command not only to

repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their

attempt to thwart or impede our military effort have violated the law of war.” [7]

In a later case, the Supreme Court stated that:

“The trial and punishment of enemy combatants who have committed violations of the law of war is thus not

only a part of the conduct of war operating as a preventive measure against such violations, but is an

exercise of the authority sanctioned by Congress to administer the system of military justice recognized by

the law of war.” [8]

Following the many declarations made by the United Nations, which warned the Germans and held out hope

and promise to the oppressed, it became the moral duty of the liberator not to forsake those pledges and to

bring the criminals to trial. [ 9] This became one of the very purposes of the war. Yet it is only a figure of

speech to say, “the Vanquished are tried by the Victors.” The individual offenders placed on trial are no more

“Vanquished” than an ordinary criminal apprehended by police representing law-abiding society. The conflict

that engulfed most of the world left no real neutrals whose interests were completely unaffected. When the

Germans were allowed to try their own war criminals at Leipzig following the First World War, the tragic

comedy that resulted contained a lesson that could hardly be ignored. [ 10] The proceedings of Nurnberg,

though conducted by the United States were always open to the German public. Correspondents and

visitors from all parts of the world attended the trials without restriction or limitation. The written daily

transcripts in German and English have always been available to anyone who cared about them. Where the

complete record is readily available for the scrutiny or criticism of legal scholars the danger of tyranny is

destroyed. The existence of American critics proves that there can be unbiased American judges. The

judges were actually selected from prominent and respected members of some of the leading courts in the

United States. Under such circumstances, the fact that the tribunals are composed of American jurists does

not detract from the sincerity and fairness of the trials.

 

Military Government enacted legislation to ensure the rights of the defendants. [ 11] A committee of the

Presiding Judges of the Tribunals adopted rules of procedure consistent with the laws of Military

Government and these rules were revised from time to time if it appeared that any hardship or difficulty of

procedure existed. [12]

Every defendant has had the right under the law to be represented by counsel of his own selection,

providing such counsel was qualified to conduct cases before German courts or was specifically authorized

by the Tribunal. [ 13] In practice this has meant that no German lawyer has ever been excluded if he was

requested as counsel for a defendant. In fact, most of the German courts under German law for membership

in the Nazi Party of the criminal SS. [ 14] If tried, many of them would be barred from legal practice but they

have, through the intervention of the American authorities, even been given immunity from prosecution in

their own courts in order to ensure that accused was criminals will have a free choice of counsel from those

Germans whom they consider best suited to defend them. Only three defendants requested American

counsel. Two of these requests were promptly approved. [ 15] The other, which was a request made late in

the trial to have an American substituted for one of the German counsel who had previously been selected

by the defendant himself, was disapproved. The Tribunal expressed doubt of the sincerity of the application

when pointing out that the American was not, in fact, available. It was the opinion of the judges before whom

he was to appear that the attorney had by his previous conduct defying orders of the Military Governor and

by his violation of standing Military Government regulations disqualified himself. [ 16] The right of a Tribunal

to protect itself from abuse by unscrupulous practitioners is inherent in every court and in exercising that

right in the one case, the Nurnberg judges made it clear that they did not intend to bad the defendants from

the ethical employment of reputable American counsel. This same tribunal later approved American counsel

for another defendant. [17]

The solicitude shown the defendants is reflected in the privileges accorded their counsel. The highest

number of prosecuting attorneys employed in Nurnberg for all trials was 75 as compared with the 191

German lawyers engaged for the defense. The United Sates Government provides a separate mess for the

defense lawyers, where three adequate meals including American coffee are supplied. By command of the

Military authorities all defense lawyers are given the largest German ration allowance, authorizing them

3900 calories daily, which is more than the amount received by American soldiers and almost three times

the amount available to the average German. [ 18] In addition, each one is gratuitously issued a very highlyprized

carton of American cigarettes per week, which is a privilege afforded no employees of Military

Government regardless of nationality of position. American air, rail, and motor transportation is authorized

and American gasoline is given to those with private vehicles for their official use. < [19] Their salaries of

3500 marks per defendant are paid by the local Government and may be as high as 7000 marks per

month [ 20] as contrasted with the 200 marks received monthly by the average skilled worker. All needed

office space for attorneys and clerical help is provided without charge. It may be fairly stated that the

assistance given the Nurnberg defendants has been greater than that available to the average impecunious

defendant in America.

 

The law requires that the indictment state the charges plainly, concisely and with sufficient particulars to

inform the defendants of the offenses charged. [ 21] At least 30 days must elapse between the service of the

indictment and the beginning of the trial, [ 22] and this has generally been exceeded. The time thus allowed

for the defendant to prepare his case is greater than that required by German or American criminal or

military law, and every defendant has received with the indictment German copies of all pertinent laws,

rules, and regulations.[23]

Every defendant has the right to be present throughout the trial, [ 24] which is conducted in German and

English simultaneously by the use of interpreters and earphones. A sound recording of the verbal

proceedings is made and used to check the accuracy of the translations and stenographic transcripts. These

are promptly available to defense attorneys for use or correction.

 

Each defendant has the right through his counsel to present evidence in support of his defense, [ 25] and

may testify for himself, which is a right denied by continental law. All personnel, facilities and supplies for

translation, photostating and mimeographing are available on equal terms to Defense and Prosecution.

The Military Government Ordinance providing for the establishment of Military Tribunals specifically provides

that the Tribunals shall not be bound by technical rules but shall admit any evidence which they deem to

contain information of probative value relating to the charges. [ 26] Affidavits, interrogations, letters, diaries,

and other statements may therefore be admitted. The opposing party is given the opportunity to question the

authenticity or probative value of all such evidence. [ 27] Objection has been raised that this is broader than

the rules applied in courts of the United States and therefore somehow deprives the defendants of a fair

trial of the due process of law required in American courts by the 5th Amendment. This question was brought

before the Supreme Court of the United States when the Japanese General Yamashita was convicted by a

military commission where similar rules of evidence prevailed. The Court held that Congress had authorized

the establishment of such rules by the Military Commander and they were subject only to review of the

Military authorities. [28]No case has been held to unfair even though such rules have prevailed before

British [ 29] and American Military Commissions in the Pacific, [30]Mediterranean, [ 31] and European

Theaters [ 32] and were in fact provided for in the Charter of the International Military Tribunal [ 33] which

was accepted and ratified by 23 countries [ 34] and affirmed by the General Assembly of the United

Nations. [ 35] Due process of law does not require any particular type of tribunal so long as the proceedings

afford the accused an impartial hearing and adequate safeguards for the protection of his individual

rights. [ 36] Exclusionary rules of evidence arose in ancient Anglo-American common law to prevent

erroneous conclusions that might be drawn by a lay jury receiving insubstantial proof. Where only judges

skilled in the law weigh the evidence, no such danger exists. The numerous exceptions to the American

“hearsay rule” admit far more evidence than they exclude and no rule exists in German law to exclude

hearsay proof. The captured official German documents, which constitute the bulk of the prosecutions case,

have considerable probative value and to exclude such evidence that in many respects is more reliable than

the report years later of a prejudiced or emotional eyewitness would be the height of folly. The weight given

to particular pieces of evidence varies, of course, with the nature of the proof, and the failure to impose rigid

technical rules on expert triers of fact and law in no way damages the substantial rights of the defense. By

ruling of the Tribunals no document or exhibit may be offered against a defendant unless a German copy

has been given to his counsel at least 24 hours in advance. [37]Usually the documents are furnished to the

defense several days or even weeks in advance which is a privilege not accorded in German or American

criminal or military courts. The accused may apply to the Tribunal for the procurement of documents on their

behalf and these are brought to Nurnberg by the occupation authorities. [38]

Where affidavits are admitted the opposing side may call the witnesses for cross-examination [ 39] or if it is

physically impossible for the witness to appear, cross-interrogatories or cross-affidavits may be

submitted. [ 40] The use of affidavits by the Prosecution has in fact been negligible as compared to that of

the Defense and their admissibility has been as advantage to the defendants.

 

Each defendant, through his personal counsel, may cross-examine any witness called by the

Prosecution [ 41] and at his request the American authorities will transport to Nuremberg, feed, house and

arrange payment for all witnesses fo the defense. [ 42] Prosecution witnesses share the same facilities, and

once a witness is brought to Nurnberg, he may be interrogated freely by the side at whose request he was

produced, or by the opposing side at whose request he was produced, or by the opposing side with the

requesting party having the right to be present. [ 43] There is absolutely no limitation on the defense

concerning dealings with potential witnesses outside of the Nurnberg and all friends and relatives of the

accused are free to act on his behalf. The only potential witnesses held in confinement by the Prosecution

are those who cannot be released because they are subject to automatic arrest by the German authorities or

are themselves awaiting trial. [ 44] The methods employed in the interrogations have always been subject to

scrutiny when the witness took the stand. There has never been a finding that force was ever employed by

the Prosecution to obtain information from a witness or the accused.

 

Motions of either side are filed in both languages, with the adverse party having 72 hours in which to

reply. [ 45] At the conclusion of the trial, every defendant is allowed to address the Tribunal, [ 46] which is a

right denied by Anglo-American law.

Any defendant may call a joint session of the Military Tribunals to review any inconsistent ruling on legal

questions which affect him, or any decision or judgment which is inconsistent with a prior ruling of another of

the Military Tribunals. [47]

The full opportunity given the accused to present their defense explains largely the duration of the trials.

Invariably the defense takes much longer than the prosecution and in one case the defense lasted 72 days

as compared with the prosecution’s case of two days. [48]

The sentences actually imposed in the Nurnberg trials defeat the contention that they have been an

instrument of vengeance. Germans, as well as Americans, have condemned the leniency increasingly

shown by the Courts in these trials of major offenders. Of the 108 persons sentenced in the first seven

cases, 20 were acquitted, [ 49] 25 were sentenced to death, [ 50] and in one of the most recent cases 5 highranking

SS officers, who were convicted of membership in a criminal organization with knowledge of

membership in a criminal organization with knowledge of its criminal activities, were promptly

released. [ 51] The Tribunals have never exercised their power [ 52] to deprive defendants of civil rights or to

impose a fine or forfeiture of property, although it is almost a certainty that any defendant3 convicted by a

German court would have been subjected to some or all of these penalties in addition to confinement.

Upon the completion of every trial the record of the case is sent to the Military Governor for review. He has

power to mitigate, reduce, or otherwise alter the sentence imposed, by the may not increase its

severity. [ 53] No death sentence may be carried into execution unless and until confirmed in writing by the

Military Governor. [ 54] The defendants have been given the privilege of sending petitions for review to the

US Supreme Court and other high governmental offices. The Court has twice refused to review the

Nurnberg cases, [ 55] yet as of this writing [ 56] no death sentence has been carried out though most of them

were pronounced over six months ago.

 

It should be apparent to every unbiased critic that the good name of the United States has been upheld in

Nurnberg by administering justice according to law and that those accused of war crimes “have been given

the kind of a trial which they, in the days of their pomp and power, never gave to any man.” [57]

[ 1] Tom Paine, quoted by Brooks, “The World of Washington Irving” 73.

[ 2] No. 1, Medical Case; No. 2, Milch Case; No. 3, Justice Case; No. 4, Pohl Case; No. 5; Flick Case; No. 7,

Hostage Case; No. 8, Race and Settlement Office Case; and No. 9, Einsatzgruppen Case.

[ 3] No. 6, Farben Case; No. 10, Krupp Case; No. 11, Ministries Case; and No. 12, High Command Case.

[ 4] Judgment in U.S. v. Alstotter, et al., transcript 10621

[ 5] Control Council Law No. 10, 20 Dec. 1945.

[ 6] Proceedings of a Board of General Officers respecting Major John Andre, September 29, 1780, cited in

Note 9 of Ex Parte Quirin, 63 Sup. Ct. Rep. 12. See also note 10 for subsequent cases.

[ 7] Ex Parte Quirin, 317 U.S. . ., 63 Sup. Ct. Reporter 11 (1942)

[ 8] In re Yamashita, 66 Sup. Ct. 340 (1946).

[ 9] See U.N. Review, Vol. III (1943) No. 1, p. 1, Moscow Declaration Oct. 1943, Crimea Conference Feb.

1945 cited in Title 23, MG Legislation, Change 1, 12 April 1946, Sec. 23-56.

[ 10] See Glueck, “War Criminals Their Prosecution and Punishment” Chap. 2—The Record of History.

[ 11] MG Ord. No. 7, 18 Oct. 1946, MG Ord. No. 11, 17 Feb. 1947.

[ 12] Uniform Rules of Procedure of the Military Tribunals, Revised to 8 Jan. 1948, Rule 7 (a).

[ 13] MG Ord. No. 7 Art IV (c); Uniform Rules of Procedure, Revised to 8 Jan. 1948, Rule 7 (a).

[ 14] Of 179 names checked against official German records it was found that 111 defense attorneys had

been members of the Nazi Party and 10 members of the SS. All SS men are subject to immediate arrest by

German authorities, Letter OMGUS “Arrest by German Police of members of Organizations Found Criminal

by the International Military Tribunal,” dated 9 July 1947. Nazi Party members are subject to denazification

under German law. See MG Reg. 24-500, 5 Mar. 1946.

[15]Order of Military Tribunal No. IV, Case No. 11, dated 29 Dec.1947, Order of Military Tribunal No. III,

Case No. 10, dated 26 Feb. 1948

[ 16] Order of Military Tribunal No. III, Case No. 10, dated 19 Dec. 1947.

[ 17] Order of Military Tribunal No. III, Case No. 10, dated 26 Feb. 1948.

[ 18] See Cable Hq. EUCOM dated 19 Feb. 1947.

[ 19] Privileges of Defense Counsel are established by letter, Hq. USFET, support of the U.S. Military

tribunals, dated 26 Feb. 1947.

[20] Uniform Rules of Procedure, Rule 26 revised to 8 Jan. 1948.

[ 21] MG Ord. No. 7 Art. IV (a).

[ 22] Uniform Rules of Procedure revised to 8 Jan. 1948, Rule 4.

[ 23] See Uniform Rules of Procedure revised to 8 Jan. 1948, Rule 6, (a) (b).

[ 24] MG Ord. No. 7 Art. IV (d).

[ 25] MG Ord. No. 7 Art. IV (c).

[ 26] MG Ord. No. 7 Art. VII.

[ 27] MG Ord. No. 7 Art. VII.

[ 28] In re Yamashita supra.

[ 29] Law Reports of Trials of War Criminals, Vol. I, p. 85.

[ 30] “regulations governing the Trial of Accused War Criminals” issued by General McArthur, U.S. Armed

Forces Pacific Area, 24 Sept. 1945, Reg. 16, superseded by Regulation 5 d dated 5 Dec. 1945

[ 31] USFET Circular No. 114 dated 23 Sept. 1945.

[ 32] USFET Order dated 25 August 1945.

[ 33] Article 19, Charter of the International Military Tribunal, 8 Aug. 1945.

[ 34] Trial of Major War Criminals, Vol. I, p. 9.

[ 35] Journal of the UN No. 58 Sup. A/AP v/55, p. 485.

[ 36] Crowell v. Bendon, 285 U.S. 22, 52 S. Ct. 265, 76 L. Ed. 598; Yamataya v. Fisher, 189 US 86, 23, S.

Ct. 611, 47 L. Ed. 721.

[ 37] Uniform Rules of Procedure revised to 8 Jan. 1948, Rule 17.

[ 38] MG Ordinance No. 7, Art. IV (f); Uniform Rules of Procedure revised to 8 Jan. 1948, Rule 12.

[ 39] MG Ordinance No. 7, Art. IV (e).

[ 40] See Uniform Rules of Procedure, revised to 8 Jan. 1948, Rule 21.

[ 41] MG Ordinance No. 7, Art. IV (e).

[ 42] MG Ordinance No. 7, Art. IV (f).

[ 43] Uniform Rules of Procedure, revised to 8 Jan. 1948, Rule 23 as interpreted by Defense Administrator.

[ 44] Report on Detention of War Crimes Suspects from Chief Counsel for War Crimes to the Military

Governor, dated 19 Jan. 1948.

[ 45] Uniform Rules of Procedure, revised to 8 Jan. 1948, Rule 10.

[ 46] MG Ordinance No. 7, Art. XI (i).

[ 47] MG Ordinance No. 11, dated 17 Feb. 1947 amending MG Ordinance No. 7.

[ 48] Case No. IX, Einsatzgruppen Case

[ 49] 7 in Case No. 1; 4 in Case No. 3; 3 in Case No. 4; 3 in Case No. 5; 2 in Case No. 7; 1 in Case No. 8.

[ 50] 7 in Case No. 1; 4 in Case No. 4; and 14 in Case No. 9.

[ 51] SS Colonels Mayer-Hetling, Schwazenberger, Ebner, SS Lt. Col. Sollman, SS Major Tesch.

[ 52] Control Council Law No. 10 Art. II 3-(d) (e) (f)

[ 53] MG Ordinance No. 7 Art. XVII; (a)

[ 54] MG Ordinance No. 7 Art. XVIII; MG Reg. No. 1 under MG Ord. No. 7, dated 11 April 1947

[ 55] Certiorari was refused in the Case of US v. Milch and U.S. v. Brandt, et al

[ 56] April 23, 1948

[ 57] Closing Statement of Mr. Justice Jackson, International Military Tribunal transcript p. 4333.

 

 

 

 

 

 

Ferencz Opening Statement at Nuremburg

 

By Benjamin B. Ferencz

published: September 1947

source: Trial of the Major War Crlminals. vol. IV. p. 494. Nuremberg. 1947.

 

MR. FERENCZ: May it please your Honors: It is with sorrow and with hope that we here disclose the

deliberate slaughter of more than a million innocent and defenseless men, women, and children. This was

the tragic fulfillment of a program of intolerance and arrogance. Vengeance is not out goal, nor do we seek

merely a just retribution. We ask this Court to affirm by international penal action man's right to live in peace

and dignity regardless of his race or creed. The case we present is a plea of humanity to law.

 

We shall establish beyond the realm of doubt facts which, before the dark decade of the Third Reich, would

have seemed incredible. The defendants were commanders and officers of special SS groups known as

Einsatzgruppen-established for the specific purpose of massacring human beings because they were Jews,

or because they were for some other reason regarded as inferior peoples. Each of the defendants in the

dock held a position of responsibility or command in an extermination unit. Each assumed the right to decide

the fate of men, and death was the intended result of his power and contempt. Their own reports will show

that the slaughter committed by these defendants was dictated, not by military necessity, but by that

supreme perversion of thought, the Nazi theory of the master race. We shall show that these deeds of men

in uniform were the methodical execution of long-range plans to destroy ethnic, national, political, and

religious groups which stood condemned in the Nazi mind. Genocide, the extermination of whole categories

of human beings, was a foremost instrument of the Nazi doctrine. Even before the war the concentration

camps within the Third Reich had witnessed many killings inspired by these ideas. During the early months

of the war the Nazi regime expanded its plans for genocide and enlarged the means to execute them.

Following the German invasion of Poland there arose extermination camps such as Auschwitz and

Maidanek. In spring 1941, in contemplation of the coming assault upon the Soviet Union, the

Einsatzgruppen were created as military units, but not to fight as soldiers. They were organized for murder.

In advance of the attack on Russia, the Einsatzgruppen were ordered to destroy life behind the lines of

combat. Not all life to be sure. They were to destroy all those denominated Jew, political official, gypsy, and

those other thousands called "asocial" by the self-styled Nazi superman. This was the new German" Kultur".

Einsatz units entering a town or city ordered all Jews to be registered. They were forced to wear the Star of

David under threat of death. All were then assembled with their families to be "resettled" under Nazi

supervision. At the outskirts of each town was a ditch, where a squad of Einsatz men waited for their victims.

Whole families were arrayed, kneeling or standing near the pit to face a deadly hail of fire.

 

Into the prisoner-of-war camps went the Einsatz units, selecting men for extermination, denying them the

right to live.

 

Helpless civilians were conveniently labled "Partisans" or "Partisan-sympathizers" and then executed.

In the hospitals and asylums the Einsatzgruppen destroyed the ill and insane, for "useless eaters" could

never serve the Third Reich.

 

Then came the gas vans, vehicles which could receive living human beings and discharge corpses. Every

Einsatzgruppe had its allotment of these carriages of death.

 

These in short were the activities of the Einsatzgruppen.

The United States, in 1942, joined 11 nations in condemnation of these Nazi slaughters and vowed that

justice would be done. Here we act to fulfill that pledge, but not alone because of it.

 

Germany is a land of ruins occupied by foreign troops, its economy crippled and its people hungry. Most

Germans are still unaware of the detailed events we shall account. They must realize that these things did

occur in order to understand somewhat the causes of their present plight. They put their faith in Hitler and

their hope in his regime. The Nazi ideology, devoid of humanism and founded on a ruthless materialism,

was proclaimed throughout Germany and was known to all Germans. Hitler and other Nazi leaders made no

secret of their purpose to destroy the Jews. As we here record the massacre of thousands of helpless

children, the German people may reflect on it to assess the merits of the system they so enthusiastically

acclaimed. If they shame at the folly of their choice they may yet find a true ideal in place of a foul fetish.

Proof of a million murders will not be the most significant aspect of this case. We charge more than murder,

for we cannot shut our eyes to a fact ominous and full of foreboding for all of mankind. Not since men

abandoned tribal loyalties has any state challenged the right of whole peoples to exist. And not since

medieval times have governments marked men for death because of race or faith. Now comes this

recrudescence-this Nazi doctrine of a master race-an arrogance blended from tribal conceit and a boundless

contempt for man himself. It is an idea whose toleration endangers all men. It is, as we have charged, a

crime against humanity.

 

The conscience of humanity is the foundation of all law. We seek here a judgment expressing that

conscience and reaffirming under law the basic rights of man.

 

 

 

 

 

 

On Criminal Responsibility

 

By Benjamin B. Ferencz

published: April 1940

source: The Journal of Social Studies, Vol. II, No. 1, Spring 1940

 

Criminal law and criminology have, for the past several years, been confronted with a problem that reaches

the very foundations and basic philosophies underlying the study and treatment of social offenders. Simply,

the controversy revolves about the question; “Shall the main concern underlying penal treatment be the

matter of the offense committed, or the person offending?” Representing the extreme positions in both

points of view,-- generally designated as Classical and Positive,-- the conflict between the legal profession

and psychiatry has later emerged.

 

About the middle of the 18th century there began to arise a philosophical school, led by Rousseau and

Bentham, which emphasized the rationality of man, hedonism, and the social contract theories. These

philosophical principles drew attention to the great injustices and inequities that prevailed in the legal

system. As a result, great protest was set up, which led to what has come to be known as the Classical

School of criminology.

 

The rise of the Classical School is most closely associated with the Italian, Cesare Beccaria. His book

“Crimes and Punishments,” published in 1764 is usually considered the foundation-stone of the Classical

doctrine of punishment. His words were motivated by a passion for human equality and liberty. His book was

not a program of a contemplated new school of punishment, but was essentially a protest. A protest against

obscurity and uncertainty of the law; against secret accusations and torture; against the abuse of power by

the pardoning power, and against numerous minor abuses. He urged that legislators, not judges, should

make the laws; that laws should be clear, so that each man would know what punishment to expect for each

crime, regardless of status; that certainty and promptness rather than severity in punishment be made the

deterrent factor, and he urged that punishments be made public.

 

Only part of Beccaria’s ideas were adopted by Classical penology. The French Code of 1791 attempted to

apply Beccaria’s principle of equal punishment for the same crime. It adopted his suggestion that crime

should be arranged on a scale, that to each crime the Italian or the Positivist School, and its most

distinguished representatives were Lombroso, Ferri, and Garofalo.

 

Lombroso had been educated for medicine. As an army doctor he had used his leisure time by making a

series of studies of the Italian soldier. He was struck by the fact that the “vicious” soldier was distinguished

from the “honest” soldier by the extent to which the former was tattooed and the indecency of the design.

Later, while working in Italian prisons, Lombroso was designated to make the post mortem examination of a

famous criminal. On opening the skull, he found on the interior of the lower back part, a distinct depression

which characteristic he knew was to be found in lower animals, especially rodents. This was a revelation to

him: “I seemed to see, all of a sudden… the nature of the criminal,-- an atavistic being who represents in his

person the ferocious instincts of primitive humanity and the inferior animals.”

 

Lombroso’s theories later underwent several changes, but at this early stage he considered the criminal a

distinct type by birth. He said they had certain physical anomalies which showed that they were either a

reversion to a savage type, or a degenerate of the epileptoid type. Criminality was thought to be inherited,

and Lombroso claimed that the born criminal could not refrain from crime unless the environmental

circumstances of his life were unusually favorable. Lombroso’s conception of the physical criminal type was

later definitely disproved by Charles Goring by an anthropological study of 3000 English convicts. A younger

member of the Italian School was Enrico Ferri, who contributed an emphasis upon the social factors, and

gathered together and placed in logical form the various factors which enter into the making of a criminal.

These in Ferri’s presentation are three; the physical factors, the anthropological, and the social factors.

Garofalo, the third of the three great founders of the Italian School, stressed the study of the criminal nature,

and of the circumstances under which a criminal lived. The criminal was considered, not as a free moral

agent, but the product of his traits and circumstances.

 

Despite the vagaries which characterize the Positive School, the study of the criminal in the light of his

individual characteristics played upon the environment, rather than a free moral agent who chooses to

commit an act injurious to society, has greatly affected criminology. Further development of the Positive

theory has led to Boner’s view of the economic determination of crime, and to the view of the dynamic

psychiatrists.

 

The Positive School would not hold the individual responsibility for crime, since they are determined by

forces beyond his control. The old objects of punishment have been severely altered. Criminals are to be

treated, not punished. Reformation is to be applied with discrimination to the various classes of criminals.

Prevention of crime by discovering as early as possible those with characteristics likely to lead to

delinquency, altering the external conditions which make for crime, and throwing around each person the

influences which make for social behavior, is receiving primary emphasis. The shift from individual to social

responsibility for crime has also resulted in the rise of Juvenile Courts, indeterminate sentences, probation,

parole, education and recreation in prisons, and wider attempts at social control of crime.

 

Unfortunately the actual practice in the administration of the criminal law has not followed the systems

outlined above. There are three conflicting tendencies in the law today. There is a tendency toward

increasing severity. This is shown in the increased length of prison sentences for certain offenses, increased

use of death penalty, increased severity toward habitual criminals, and the opposition to probation and

parole laws. On the other hand, there is also a tendency toward pressure for more human treatment. This is

shown in the substitution of summonses for arrests in many cases, the general improvement of prisons, and

the payments of wages to prisoners. The third tendency is that toward the adjustment of treatment to

individual needs, as illustrated by the results produced by the Positive School. Our law is not opposed to all

of these views, but has in effect and practice, opposed very many of them. The conflicting statutes within the

law itself decrease the respect on the part of the public for the law, and rocks the foundations of legal

authority.

 

The question of responsibility need not be brought up at all, unless as a question of “educability.” That is, the

problem for the psychiatrist to solve. What are the potentialities for future adjustment to the normal social

code? There is no ultimate underlying principle behind the determination of responsibility. It will be

determined by definite criteria of social deviation, changing as dynamic society changes. The criteria of

normality and the sentiment of justice are solely dependent upon the social group, and are a product of

group norms. There is no value in considering abstract :”responsibility” per se, it must resolve itself into the

problem of determining future behavior which will affect society on one way or another. If the potentialities

for adjustment seem favorable, the necessary treatment will be rendered; if not, the person must be isolated

from the social group. A larger problem has now been raised. It is the problem of prognosis. It is in this

larger problem that the socially useless question of responsibility must lose itself. Even though we may have

a more difficult task before us, if we have lost the problem we started with, I believe something has been

gained.