Trial by combat

“ In the two succeeding centuries many curious laws were enacted to suit the times,—those relating to trial by combat are among the most remarkable; we will merely instance one: If a woman of the lower classes had been violated, but the matter could not be proved, the accused man was buried up to his middle in the earth, and a stick, an ell long, put into his hand ”

“ The assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. The men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. The men of the petty jury tended to be the same men who were on the grand jury.
Felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. Murder still meant secret homicide. ”

“ We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. ”

“ Culprits arraigned before them, guarded by armed soldiery, without arms themselves—why, in the name of justice, drag them into Court and force them to sit through a long trial, bound with iron, hand and foot? ”

“ Before commencing the fight, the combatants were compelled to swear that neither of them would resort to sorcery or witchcraft. If the accused were slain, the judges regarded the fatal deed as proof of his guilt. If overpowered, but not killed, he was adjudged guilty, and sentenced to be immediately executed. Women, priests, infants, men sixty years of age, or lame or blind, had it in their option to refuse wager of battle, and were entitled to demand trial by jury. ”

“ This was more trying to the courage and discipline of the troops than the former attacks, but the trial was supported with perfect steadiness. Not a man moved from his position, except to close up the opening made by the shot, when his right or left-hand man was struck down ... To stand in this manner with perfect firmness, exposed to a galling fire, without any object to engage the attention or occupy the mind, and without the power of making the smallest resistance, was a trial of the character of the British soldier, to which the enemy did full justice. ”

“ Notwithstanding this fact, I have yet to learn that any loyal man ever challenged, during all the period of our conflict for independence and nationality, the validity of that law for the trial, for military offences, by military tribunals, of all offenders, as the law, not of peace, but of war, and absolutely essential to the prosecution of war. I may be pardoned for saying that it is the accepted common law of nations, that martial law is, at all times and everywhere, essential to the successful prosecution of war, whether it be a civil or a foreign war. ”

“ Do you say that men captured in uniform should be taken out and shot without trial?
WAGNER: I cannot consider men of whom I know that they have orders to commit crimes, as soldiers, within international law.
COL. PHILLIMORE: Are you saying that this action was perfectly proper—are you?
WAGNER: Yes, entirely and perfectly.
COL. PHILLIMORE: Shoot helpless prisoners without trial, bully little neutrals who cannot complain? That is your policy, is it?
WAGNER: Not at all.
COL. PHILLIMORE: What crime did Robert Paul Evans commit, who attacked the Tirpitz in a two-man torpedo? ”

“ You are not entitled to address the Tribunal except through your counsel, at the present time.
I will now call upon the Chief Prosecutor for the United States of America.
MR. JUSTICE JACKSON: May it please Your Honors:
The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. ”

“ There is a military tribunal with judicial officers and there is a court-martial which consists of soldiers. These have the right to pass and to execute an appropriate sentence against any soldier of the German Army in court-martial proceedings. ”

“ Since the Amendments, like § 2 of Article III, do not preclude all trials of offenses against the law of war by military commission without a jury when the offenders are aliens not members of our Armed Forces, it is plain that they present no greater obstacle to the trial in like manner of citizen enemies who have violated the law of war applicable to enemies. ”

“ We close today the trial of a major war criminal—a leader in a slaving operation, the enormity of which is without historical parallel; a principal in a crime of murder in the ironic masquerade of scientific progress which has shocked alike the world of medicine and the world of laymen. ”

“ The constitution says that no man may be tried and punished except by a jury and due process of law. If the courts are open, and opportunity given for jury trial and due process of law, the constitution must be obeyed, and it is absurd to say that martial law may exist. ”

“ We quote further from the report of the Paris Commission:
“Every belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty of the crimes of which an enumeration has been given in chapter II on Violations of the Laws and Customs of War, if such persons have been taken prisoners or have otherwise fallen into [979] its power. Each belligerent has, or has power to set up, pursuant to its own legislation, an appropriate tribunal, military or civil, for the trial of cases.” ”

“ If a prisoner is coerced by torture or other methods to give the evidence against him, if he is beaten or slowly 'broken' by third-degree methods, then the 'trial' before the military tribunal becomes an empty ritual. The real trial takes place in secret where the accused without benefit of counsel succumbs to physical or psychological pressures. ”

“ With firm steps and smiling faces the roll of martyrs went forth to their fate during the whole of that long autumn day, until the rough soldiers of the guard stood silent and awed in the presence of a courage which they could not but recognise as higher and nobler than their own. Folk may call it a trial that they received, and a trial it really was, but not in the sense that we Englishmen use it. ”

“ But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
'Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. ”

“ A jury made up of military personnel would be tantamount to the personnel of a court-martial to which the former minority objects. A jury composed of civilians residing on the military installation is subject to the same criticism. If the jury is selected from among the local populace, how would the foreign citizens be forced to attend the trial? ”

“ If any soldier commits waste or destruction, the person whose property is thus wasted must find out the name, company, and regiment of the actual transgressor. In order to punish there must be a trial, and there must be testimony. It is not sufficient that a general accusation be made, that soldiers are doing this or that. I cannot punish my whole command, or a whole battalion, because one or two bad soldiers do wrong. ”

“ Then we said, when considering a habeas corpus for release from military imprisonment after trial by court-martial of a person claiming civilian status:
'We have no doubt of the power of Congress to enlist the manpower of the nation for prosecution of the war and to subject to military jurisdiction those who are unwilling, as well as those who are eager, to come to the defense of their nation in its hour of peril. ”

“ It is a matter of course that we—and we assume the same is true of the Prosecution—that we, the members of the Defense, want the Trial to be as speedy as possible but also want it to proceed cautiously to establish the full truth. ”

“ Despite the magnitude of the task, the world has demanded immediate action. This demand has had to be met, though perhaps at the cost of finished craftsmanship. In my country, established courts, following familiar procedures, applying well-thumbed precedents, and dealing with the legal consequences of local and limited events seldom commence a trial within a year of the event in litigation. Yet less than 8 months ago today the courtroom in which you sit was an enemy fortress in the hands of German SS troops. ”

“ Eyre says, “I have come to the conclusion that, looking at what martial law was, the bringing of a person into the proclaimed district to be tried might, in a proper case, be justified.” The learned judge admits that there should be a power of summary trial, observing all the substantials of justice, in order to stamp out an insurrection by speedy trial. ”

“ On the one hand he wants the Trial to appear to future generations as the fulfillment of the human yearning for justice; on the other, in the face of objections to the Charter, he invokes the power of the victorious, who really could have made short work of the defendants.
It seems to me that he speaks too much as an accuser, the sole role he really wants to assume according to his own words. For the prosecutor—especially in Anglo-American procedure—the word “justice” has a different meaning than for the judge, let alone the defendant. ”

“ While there is some little confusion in this part of the record, we think that the trial court did not misconstrue the policy, nor commit any error upon this particular point of which the plaintiff was entitled to complain. It is to be taken that the jury found, upon the whole evidence, that the loss was occasioned by causes independent of the existence of any invasion, foreign enemy, rebellion, insurrection, riot, civil commotion, military or usurped power, or martial law. ”

“ No person shall be liable to be tried and punished by a general court martial for any offence which shall appear to have been committed more than two years before the issuing of the order for such trial, unless the person by reason of having absented himself, or some other manifest impediment, shall not have been amenable to justice within that period.
Art. 89. Every officer authorised to order a general court martial, shall have power to pardon or mitigate any punishment ordered by such court, except the sentence of death, or of cashiering an officer ”

“ 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. ”

“ The crimes are monstrous. The crimes and the responsibility for them have definitely been established. There is no possible doubt. Nevertheless throughout these tranquil sessions of this Trial, extraordinary in the history of the world, in view of the exceptional nature of the justice which your High Tribunal is called upon to render before the United Nations and the German people and before all mankind a few objections may arise in our minds. ”

“ Justice Jackson said so eloquently at the opening of this Trial, “Civilization could not survive if these crimes were to be committed again,” and he added, “The true plaintiff in this Court is civilization.”
Civilization requires from you after this unleashing of barbarism a verdict which will also be a sort of supreme warning at the hour when humanity appears still at times to enter the path of the organization of peace only with apprehension and hesitation. ”

“ GEN. RUDENKO: Document C-50, dated 13 May 1941.
THE PRESIDENT: Very well.
GEN. RUDENKO: [To the defendant] : Although you declare that you have already elucidated the matter to your counsel, I am nevertheless obliged to put this question to you in a slightly different form: Did you consider that an officer had a right to shoot people without trial or investigation?
KEITEL: In the German Army there have always been courts-martial for our own soldiers as well as for our enemies, which could always be set up, consisting of one officer and one or two soldiers all three of whom would act as judges. ”

“ The combatant is engaged in legitimate defense on the battlefield; his homicidal action is therefore covered by a justifying fact. But if this justifying fact is taken away the infraction, whether ordinary crime or war crime, remains in its entirety. To establish the justifying fact, the criminal action must be necessary and proportional to the threat to which it responds. The defendants, against whom justice is demanded of you, can plead no such justification.
Nor can they escape their responsibility by arguing that they were not the physical authors of the crimes. ”

“ Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. ”