War criminal

“ If we should adopt the view that by reason of the fact that the war was a criminal war of aggression every act which would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and a murderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct and the pronouncement of guilt in any case would become a mere formality. ”

“ This Indictment charges the defendants with Crimes against Peace by the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances; with War Crimes; and with Crimes against Humanity. The defendants are also charged with participating in the formulation or execution of a common plan or conspiracy to commit all these crimes. The Tribunal was further asked by the Prosecution to declare all the named groups or organizations to be criminal within the meaning of the Charter. ”

“ International law therefore intervenes in the definition of a war crime, not in order to give it essential qualification but in order to fix its outer limits. In other words, every infraction committed on the occasion or under the pretext of hostilities is criminal unless justified by the laws and customs of war. International law here applies the national theory of legitimate defense which is common to all codes of criminal law. ”

“ We have also accused as criminal organizations the High Command and the General Staff of the German Armed Forces. We recognize that to plan warfare is the business of professional soldiers in every country. But it is one thing to plan strategic moves in the event war comes, and it is another thing to plot and intrigue to bring on that war. We will prove the leaders of the German General Staff and of the High Command to have been guilty of just that. Military men are not before you because they served their country. ”

“ That concludes the evidence on the criminal activities of the group under Counts One and Two. The documents written by the military leaders are not the writings of men who were reluctant to plan and execute these manifold wars.
I want to make clear again the nature of the accusations against this group under Counts One and Two. They are not accused on the ground that they are soldiers. They are not accused merely for doing the usual things a soldier is expected to do, such as making military plans and commanding troops. ”

“ The war crime involves two responsibilities, distinct and complementary: that of the physical author and that of the instigator. There is nothing heterodox in this conception. It is the faithful representation of the criminal theory of complicity through instructions. The responsibility of the accomplice, whether independent or complementary to that of the principal author, is incontestable. ”

“ The Prosecution has deemed it necessary—indeed imperative—to establish beyond all possibility of doubt, at what may appear to be excessive length, that only superficial learning or culpable sentimentality can assert that there is any significant element of retroactive law in the determination of the authors of the Charter to treat aggressive war as conduct which International Law has prohibited and stigmatized as criminal. ”

“ Violations of the laws and usages of war cognizable by military tribunals only; (3) Breaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of War.' (Emphasis added.) Winthrop, at *1309. And cf. Fairman, The Law of Martial Rule (2d ed. 1943) : 'Military commissions take cognizance of three categories of criminal cases: offenses against the laws of war, breaches of military regulations, and civil crimes which, where the ordinary courts have ceased to function, cannot be tried normally.' (Emphasis added.) ”

“ It must, however, be emphasised that this rule applies only to irregulars fighting in bodies, however small. Such individuals as take up arms or commit hostile acts singly and severally are still liable to be treated as war criminals, and shot. ”

“ Therefore, if we refer exclusively to our established laws and especially to French domestic law, the defendants could not, in any case, be considered as principal authors but merely as accomplices “who have provoked the act through abuse of authority or of power.” All of that is indeed a contradiction to the conception which each person in our countries holds of the guilt of the major war criminals. To solve the problem thus would be to narrow singularly the field of responsibility of each of the defendants. ”

“ The war crimes and crimes against humanity charged herein against the defendant Milch include deportation, enslavement and mistreatment of millions of persons, participation in criminal medical experiments upon human beings, and murders, brutalities, cruelties, tortures, atrocities, and other inhumane acts. ”

“ It must be particularly noted that merchantmen of belligerents, which attack enemy vessels without previously having been attacked by them, commit a war crime, [483] and that the captains, officers, and members of the crews may, therefore, be punished as war criminals to the same extent as private individuals who commit hostilities in land warfare. ”

“ Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
“ (d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal. ”

“ If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society ”

“ What we are discussing here is the crime of planning and waging aggressive war. It stands to reason that that crime is committed most consciously and culpably by a nation’s leaders—the leaders in all the major fields of activity which are necessary to and closely involved in the waging of war. It is committed by propagandists and publicists. It is committed by political leaders, by diplomats, by the chief ministers, by the principal industrial and financial leaders. It is no less committed by the military leaders. ”

“ If the prisoner be a regular unoffending soldier of the opposing party to the war, he should be treated with all the courtesy and kindness consistent with safe custody; if he has offended against the laws of war he should have such a trial, and be punished as the laws of war require. A spy, though a prisoner of war, may be tried, condemned, and executed by a military tribunal without a breach of the Constitution. A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies, may be tried, condemned, and executed as offenders against the laws of war. ”

“ In contradistinction to hostile acts of soldiers by which the latter do not lose their privilege of being treated as members of armed forces who have done no wrong, war crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders. It must, however, be emphasised that the term war crime is used, not in the moral sense of the term crime, but only in a technical legal sense, on account of the fact that perpetrators of these acts may be punished by the enemy. ”

“ But I think—and I will revert later separately to Crimes against Peace and War Crimes—that this body of Crimes against Humanity constitutes, in the last analysis, nothing less than the perpetration for political ends and in a systematic manner, of common law crimes such as theft, looting, ill treatment, enslavement, murders, and assassinations, crimes that are provided for and punishable under the penal laws of all civilized states. ”

“ CRIMES IN THE CONDUCT OF WAR
Even the most warlike of peoples have recognized in the name of humanity some limitations on the savagery of warfare. Rules to that end have been embodied in international conventions to which Germany became a party. This code had prescribed certain restraints as to the treatment of belligerents. The enemy was entitled to surrender and to receive quarter and good treatment as a prisoner of war. We will show by German documents that these rights were denied, that prisoners of war were given brutal treatment and often murdered. ”

“ This measuring rod must not be forgotten if you proceed to the judgment of the crimes against humanity of which people are accused here. If such monstrosities are deemed admissible on one side, while similar actions on the part of the enemy are condemned, the judgment of humanity can only depend on the approval or disapproval of the purpose and aim, and thereby loses the name of justice.
The firm ground on which the punishable crime against humanity rests, can only be the proved war crime or a definite crime against peace. ”

“ Another aspect of this policy of terror and extermination appears when one studies the war crimes committed by Germany on the persons of prisoners of war. These crimes, as I shall prove to you, had two motives, among others: To debase the captives as much as possible in order to sap their energy; to demoralize them; to cause them to lose faith in themselves and in the cause for which they fought, and to despair of the future of their country. ”

“ That is why the Commission of Fifteen set up a list of War Crimes. This list includes 32 infractions. These are particularly:
1. Murders, massacres, systematic terrorism; 2. killing of hostages; 3. torture of civilians; 8. confinement of civilians in inhuman conditions; 9. forced labor of civilians in connection with military operations of the enemy; 10. usurpation of sovereignty during the occupation of occupied territories; 11. forced conscription of soldiers among the inhabitants of the occupied territories; 12. attempts to denationalize the inhabitants of occupied territories; 13. looting ”

“ Brown.’ But one thing is certain, he is the master criminal of this age. He controls a marvellous organization. Most of the Peace propaganda during the war was originated and financed by him. ”

“ Let the defendants not be astonished at the charges brought against them and let them not dispute at all this principle of retroactivity, the permanence of which was guaranteed, against their wishes, by democratic legislation. War Crimes are defined by international law and by the national law of all modern civilizations. The defendants knew that acts of violence against the persons and property and human status of enemy nationals were crimes for which they would have to answer before international justice. ”

“ Then the next document is the draft order prepared by the Legal Department:
“Members of terror and sabotage detachments of the British Armed Forces who demonstrably break the rules of an honorable way of fighting will be treated as bandits: To be exterminated mercilessly in battle or in flight. If in case of military necessity they should be temporarily arrested, or if they fall into German hands outside combat actions, they are to be brought before an officer immediately for interrogation and are then to be handed over to the SD.
“Holding them in a prisoner-of-war camp is forbidden. ”

“ Without this limit, all hard measures, which are taken during a war even against one’s own population, as for example against conscientious objectors and saboteurs, ought to be punished as crimes against humanity in connection with a crime against peace, if this war is declared to be an aggressive one by the enemy, after it has been lost. ”

“ The German authors of the 17th and 18th century developed the doctrine.
Thus Johann Jacob Moser, a positivist writer of the 18th century said:
“Enemy soldiers who act in violation of international law, should they fall into the hands of their adversaries, are not to be treated as prisoners of war. They can suffer the same fate as thieves or murderers.” ”