United States v. Josef Altstoetter, et al.

[The Justice Case]

Law No. 10. 1946-1949, Vol. III (1951). Opinion and Judgment, at 954-84

FACTS: In February 1947, the U.S. Military Government for Germany created Military Tribunal
III to try sixteen important German judges and legal officials (including Josef Alstoetter,
defendant), nine whom were officials in the Reich Ministry of Justice, while the others were
members of the People's and Special Courts. The defendants were arraigned on February 17,
all pleading not guilty to the charges against them.

The indictment listed four counts, with all the defendants charged with the first three: conspiracy
to commit war crimes and crimes against humanity; war crimes against civilians of territories
occupied by Germany and against soldiers of countries at war with Germany; and crimes
against humanity, against German civilians and nationals of occupied territories. The fourth
count of the indictment charged seven of the defendants with membership in the SS, SD, or the
leadership corps of the Nazi Party, all of which had been declared criminal organizations a year
before by the International Military Tribunal.

The United States of America, by the undersigned Telford Taylor, Chief of Counsel for War
Crimes, duly appointed to represent said Government in the prosecution of war criminals,
charges the defendants with "judicial murder and other atrocities, which they committed by
destroying law and justice in Germany, and then utilizing the emptied forms of legal process for
the persecution, enslavement and extermination on a large scale". Their participation in a
common design or conspiracy to commit and did commit war crimes and crimes against
humanity was defined in Control Council Law No. 10, duly enacted by the Allied Control
Council on 20 December 1945. These crimes also included murders, brutalities, cruelties,
tortures, atrocities, plunder of private property, and other inhumane acts, as set forth in counts
one, two, and three of this indictment.

The trial opened on March 5 and the final statements of the defendants were heard on October
18. Military Tribunal III returned its judgment on December 3 and 4, finding ten of the
defendants guilty and acquitting four. Two defendants were not included in the judgment as one
died before the trial began and the case of the other was declared a mistrial because he had
been too sick to attend much of the trial. The court announced its sentences on December 4,
sending four of the guilty defendants to prison for life and six to prison for terms ranging
between five and ten years.

ISSUE/s: 1. Is the Control Council the source of the military tribunal power and jurisdiction to
punish violations of international law?

2. Are violations of laws and customs the only offenses recognized by international law?

3. Can the principle of nullum crimen sine lege be used as a defense to international crimes
since the ex post facto rule is not applicable to international law?

DOCTRINE: The jurisdiction of international tribunals is based on international and not domestic
law, and their authority to try offenses against international law and crimes against humanity is
not limited by territorial boundaries, the general prohibition against ex post facto laws, or the
principle nullum crimen sine lege.

HELD:

1. Yes. The Control Council, as an international body temporarily governing Germany is the
source in which the military tribunal draws its power and jurisdiction to punish violations of
international law. A state with a functioning government have always been recognized take
decision to punish war crimes of perpetrators that come within the state’s jurisdiction, but at the
state’s discretion, but this is not the case in this situation because there was no functioning
German government. This implies that the punishment of violations of international law in
Germany is not dependent on the enactment of rules of substantive criminal law that are
applicable only in Germany. But the military tribunal has the power to punish the violations of
the common international law because Germany is under the control of the Control Council
which is an international body that has assumed and exercised the power to establish judicial
machinery for the punishment of such violations. If the state had a functioning national
government that could exercise its sovereignty, such an international body would not be able to
exercise such power without the consent of the state.

NOTE: This universality and superiority of international law does not necessarily imply
universality of its enforcement. As to the punishment of persons guilty of violating the laws and
customs of war (war crimes in the narrow sense), it has always been recognized that tribunals
may be established and punishment imposed by the state into whose hands the perpetrators
fall. These rules of international law were recognized as paramount and jurisdiction to enforce
them by the injured belligerent government, whether within the territorial boundaries of the state
or in occupied territory, have been unquestioned.

However, enforcement of international law has been traditionally subject to practical limitations.
Within the territorial boundaries of a state having a recognized, functioning government
presently in the exercise of sovereign power throughout its territory, a violator of the rules of
international law could be punished only by the authority of the officials of that state.

2. No. Violations of laws and customs of war are not the only offenses recognized by
International law.

C. C. Law 10 is not limited to the punishment of persons guilty of violating the laws and customs
of war in the narrow sense; furthermore, it can no longer be said that violations of the laws and
customs of war are the only offenses recognized by common international law. The force of
circumstance, the grim fact of world-wide interdependence, and the moral pressure of public
opinion have resulted in international recognition that certain crimes against humanity
committed by Nazi authority against German nationals constituted violations not alone of statute
but also of common international law

The Court holds that crimes against humanity as defined in C. C: Law 10 must be strictly
construed to exclude isolated cases of atrocity or persecution whether committed by private
individuals or by governmental authority. As we construe it, that section provides for punishment
of crimes committed against German nationals only where there is proof of conscious
participation in systematic government organized or approved procedures amounting to
atrocities and offenses of the kind specified in the act and committed against populations or
amounting to persecutions on political, racial, or religious grounds.

3. No. The principle nullum crimen sine lege (“no crime without law”) cannot be used as a
defense to international crimes since the ex post facto rule is not applicable to international law.
Ex post facto prosecutions (nullm crimen sine lege; nulla poena sine lege) are prohibited by a
basic precept of criminal law. Most of the crimes against humanity, such as genocide and mass
killing, have already been determined as crimes under every legal system. This therefore
implies that it would be just under the ex post facto principles to prosecute and punish
perpetrators of these crimes, as these crimes have merely been “internationalized” by the IMT
Charter.
NOTE: The ex post facto principle does not apply to the field of international law in the same
manner as under domestic constitutional law. In the domestic arena, the ex post facto rule
functions to invalidate any statute that criminalizes actions engaged in prior to the statute's
implementation. However, international law is not based on statutes. There is no central
international body in charge of creating and passing statutes applicable to the international
community as a whole. Instead, international law is comprised of treaties, judicial opinions, and
customary international law. If the ex post facto principle were applied to these sources,
international law would never develop at all. Therefore, under international law, the ex post facto
rule is simply meant to operate as a guarantee of justice before prosecution is permitted,
requiring assurances that a person knew, or was at least on notice, that his or her behavior
constituted a crime.