SUBJECTS OF INTERNATIONAL LAW

PIL CASE DIGESTS SET 2

WESTERN SAHARA
Advisory Opinion of 16 October 1975

FACTS:

The Court first recalls that the General Assembly of the United Nations decided to
submit two questions for the Court's advisory opinion by resolution 3292 (XXIX) adopted on 13
December 1974 and received in the Registry on 21 December.

It retraces the subsequent steps in the proceedings, including the transmission of a

dossier of documents by the Secretary-General of the United Nations and the presentation of
written statements or letters and/or oral statements by 14 States, including Algeria, Mauritania,
Morocco, Spain and Zaire.

Question 1: "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the Time of
Colonization by Spain a Territory Belonging to No One (terra nullius)?"

Question 2: "What Were the Legal Ties of This Territory with the Kingdom of Morocco
and the Mauritanian Entity?"

ISSUE/S:

1. Whether or not Western Sahara was terra nullius at the time of colonization by Spain.

2. Whether or not there were legal ties between Kingdom of Morocco and the Mauritanian
Entity?

HELD:
1. No. According to the State practice of that period, territories inhabited by tribes or
peoples having a social and political organization were not regarded as terrae nullius: in their
case sovereignty was not generally considered as effected through occupation, but through
agreements concluded with local rulers.

The information furnished to the Court shows (a) that at the time of colonization Western
Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in
tribes and under chiefs competent to represent them; (b) that Spain did not proceed upon the
basis that it was establishing its sovereignty over terrae nullius: thus in his Order of 26
December 1884 the King of Spain proclaimed that he was taking the Rio de Oro under his
protection on the basis of agreements entered into with the chiefs of local tribes.
2. No. In the view of the Court, however, what must be of decisive importance in
determining its answer to Question II must be evidence directly relating to effective display of
authority in Western Sahara at the time of its colonization by Spain and in the period
immediately preceding

As evidence of its display of sovereignty in Western Sahara, Morocco invoked alleged

acts of internal display of Moroccan authority, consisting principally of evidence said to show the
allegiance of Saharan caids to the Sultan, including dahirs and other documents concerning the
appointment of caids, the alleged imposition of Koranic and other taxes, and acts of military
resistance to foreign penetration of the territory.

Morocco also relied on certain international acts said to constitute recognition by other
States of its sovereignty over the whole or part of Western Sahara, including (a) certain treaties
concluded with Spain, the United States and Great Britain and Spain between 1767 and 1861,
provisions of which dealt inter alia with the safety of persons shipwrecked on the coast of Wad
Noun or its vicinity, (b) certain bilateral treaties of the late nineteenth and early twentieth
centuries whereby Great Britain, Spain, France and Germany were said to have recognized that
Moroccan sovereignty extended as far south as Cape Bojador or the boundary of the Rio de
Oro.

The Court finds that neither the internal nor the international acts relied upon by Morocco
indicate the existence at the relevant period of either the existence or the international
recognition of legal ties of territorial sovereignty between Western Sahara and the Moroccan
State.

NOTE: For the purposes of the Advisory Opinion, the "time of colonization by Spain" may be
considered as the period beginning in 1884, when Spain proclaimed its protectorate over the
Rio de Oro. It is therefore by reference to the law in force at that period that the legal concept of
terra nullius must be interpreted. In law, "occupation" was a means of peaceably acquiring
sovereignty over territory otherwise than by cession or succession; it was a cardinal condition of
a valid "occupation" that the territory should be terra nullius.

NOTE: Terra nullius is a Latin term that means land belonging to no one or no man's land. In
international law, a territory which has never been subject to the sovereignty of any state, or
over which any prior sovereign has expressly or implicitly relinquished sovereignty is terra
nullius. –uslegal.com

NOTE: The term "Mauritanian entity" was first employed during the session of the General
Assembly in 1974 at which resolution 3292 (XXIX), requesting an advisory opinion of the Court,
was adopted. It denotes the cultural, geographical and social entity within which the Islamic
Republic of Mauritania was to be created.

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TITLE: INTERNATIONAL STATUS OF SOUTH WEST AFRICA
FACTS: The Territory of South-West Africa was one of the German overseas possessions, by
Article 119 of the Treaty of Versailles, Germany renounced all their rights and titles in favour of
the Principal Allied and Associated Powers (eto si League of Nations).

After the war of 1914-1918, this Territory was placed under a “Mandate” conferred upon the
Union of South Africa (The Union) which was to have full power of administration and legislation
over the Territory. The Union Government of South Africa was to exercise an international
function of administration on behalf of the League of Nations and the latter would have
supervisory functions over the action of the Union.

After the second world war (nadisolve na ung League of Nations), the Union of South Africa,
alleging that the Mandate had lapsed, sought the recognition of the United Nations to the
integration of the Territory in the Union (kanila na daw ulit ung South West Africa, and not
merely an administrator).

The United Nations refused their consent to this integration and invited the Union of South
Africa to place the Territory under trusteeship, according to the provisions of Chapter 12 of the
“Charter”. The Union refused. The General Assembly of the United Nations sought for the
opinion of the ICJ regarding the following matters (ITO NA UNG ISSUES):

“What is the international status of the Territory of South-West Africa and what are the
international obligations of the Union of South Africa arising therefrom, in particular:

(a) Does the Union of South Africa continue to have international obligations under the
Mandate for South- West Africa and, if so, what are those obligations?

(b) Are the provisions of Chapter 12 of the Charter applicable and, if so, in what manner,
to the Territory of South-West Africa?

(c) Has the Union of South Africa the competence to modify the international status of
the Territory of South- West Africa, if not, where does the competence rest to determine
and modify the international status of the Territory?”

HELD: (a) The Court declared that the League of Nations was not a "mandator". The essentially
international character of the functions of the Union appeared from the fact that these functions
were subject to the supervision of the Council of the League and to the obligaion to present
annual reports to it..

The international obligations assumed by the Union were of two kinds.

One kind was directly related to the administration of the Territory; and
the other kind related to the machinery for implementation and was closely linked to the
supervision and control of the League of Nations.
The obligation of the 1st kind represent the very essence of the sacred trust of civilization. The
raison d'etre and original object remain. Since their fulfilment did not depend on the existence of
the League of Nations, they could not be brought to an end merely because this supervisory
organ ceased to exist. This view is confirmed by Article 80, paragraph 1, of the Charter,
maintaining the rights of States and peoples and the terms of existing international instruments
until the territories in question are placed under the trusteeship system. Moreover, the resolution
of the League of Nations said that the League's functions with respect to mandated territories
would come to an end; it did not say that the Mandates themselves came to an end.

With regard to the second kind of obligations, the Court said that some doubts might arise from
the fact that the supervisory functions of the League with regard to mandated territories not
placed under the new trusteeship system were neither expressly transferred to the United
Nations, nor expressly assumed by that Organization. Nevertheless, the obligation incumbent
upon a Mandatory State to accept international supervision and to submit reports is an
important part of the Mandates System. It could not be concluded that the obligation to submit to
supervision had disappeared merely because the supervisory organ had ceased to exist, when
the United Nations had another international organ performing similar, though not identical,
supervisory functions.

These considerations were confirmed by the Charter. The competence of the General Assembly
of the United Nations to exercise such supervision and to receive and examine reports is
derived from the provisions of the Charter. Moreover, the Resolution of the Assembly of the
League of Nations presupposes that the supervisory functions exercised by the League would
be taken over by the United Nations.

Therefore, South-West Africa is still to be considered a territory held under the Mandate. The
degree of supervision by the General Assembly should not exceed that which applied under the
Mandates System.

(b) Chapter 12 of the Charter applied to the Territory of South-West Africa in this sense, that it
provides a means by which the Territory may be brought under the trusteeship system.
With regard to the second part of the question, dealing with the manner in which those
provisions are applicable, the Court said that the provisions of this chapter did not impose upon
the Union to place the Territory under a trusteeship agreement.

(c) The Court decided that the Union had no competence to modify unilaterally the international
status of the Territory. It repeated that the normal way of modifying the international status of
the Territory would be to place it under the Trusteeship System by means of a Trusteeship
Agreement, in accordance with the provisions of Chapter 12 of the Charter.

Article 7 of the Mandate required the authorization of the Council of the League for any
modifications of its terms. Since the league is no longer in existence, by analogy, it is the UN
who can give such authorization.
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Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) [Advisory Opinion I.C.J (1950)]

Doctrine: Member States of the United Nations are bounded by its mandates and violations or
breaches results in a legal obligation on the part of the violator to rectify the violation and upon
the other Member States to recognize the conduct as a violation, and to refuse to aid in such
violation.

Facts: Under a claim of right to annex the Namibian territory and under the claim that Namibia’s
nationals desired South Africa’s rule, South Africa began the occupation of Namibia (formerly
South West Africa) where it instituted a system of apartheid. In 1966, the United Nations
General Assembly issued a resolution stating that South Africa’s continued mandate from the
League of Nations to Namibia was terminated. The General Assembly concluded that South
Africa breached the mandate and that South Africa had no right to administer Namibia’s
territory. The General Assembly recalls that the entry into force of the UN Charter established a
relationship between all members of the UN on the one side, and each mandatory power, on the
other, and that the fundamental principles governing that relationship is that the party which
disowns or does not fulfill its obligation cannot be recognized as retaining the rights which it
claims to derive relationship. South Africa ignored the General Assembly’s resolution. The
United Nations Security Council considered the situation, thus the Security Council reaffirmed
the General Assembly’s resolution and stated that South Africa’s continued presence in Namibia
was illegal and called upon other Member States to act accordingly. South Africa remained
unresponsive to this resolution. The Security Council requested an advisory opinion from the
International Court of Justice on the following questions: What are the legal consequences for
States of the continued presence of South Africa in Namibia, notwithstanding Security Council
resolution.

Issue: Are mandates adopted by the United Nations binding upon all Member States so as to
make breaches or violations thereof result in a legal obligation on the part of the violator to
rectify the violation and upon other Member States to recognize the conduct as a violation and
to refuse to aid in such violations?

Held: Yes. Member States of the United Nations are bounded by its mandates and violations or
breaches results in a legal obligation on the part of the violator to rectify the violation and upon
the other Member States to recognize the conduct as a violation and to refuse to aid in such
violation. Member States are also under the obligation to abstain from certain acts and relations
with the violator State. As Member States, the obligation to keep intact and preserve the rights
of other States and the people in them has been assumed. So when a Member State does not
toll this line, that State cannot be recognized as retaining the rights that it claims to derive from
the relationship.
 In this particular case, the General Assembly discovered that South Africa contravened the
Mandate because of its deliberate actions and persistent violations of occupying Namibia.
Hence, it is within the power of the Assembly to terminate the Mandate with respect to a
violating Member State, which was accomplished by a resolution in this case. The resolutions
and decisions of the Security Council in enforcing termination of this nature are binding on the
Member States, regardless of how they voted on the measure when adopted. South Africa is
therefore bound to obey the dictates of the Mandate, the resolution terminating it as to South
Africa, and the enforcement procedures of the Security Council. Once the Mandate has been
adopted by the United Nations, it becomes binding upon all Member States and the violations or
breaches of this Mandate result in legal obligations on the part of the violator to rectify the
violation, and upon the other Member States to recognize the conduct as a violation and to
refuse to aid in such violation.

NOTES
1. With regard to the contention of South Africa that the ICJ was not competent to deliver the opinion because the Security Council’s
resolution was invalid since 2 permanent members of the Security Council abstained during the voting, the Court pointed out that for
a long period the voluntary abstention of a permanent member has consistently been interpreted as not constituting a bar to the
adoption of resolutions by the Security Council.

2. Mandates are colonies or territories which as consequence of the First World War have cease to be under sovereignty of the
States which formerly governed them and which were inhabited by people not yet able to stand by themselves. They were placed
under the system of mandates established by Art. 22 of Treaty of Versailles which was an attempt to apply a form of guardianship
over the said colonies and territories. Before the creation of the United Nations, all mandates were issued from the League of
Nations which based its mandates from self-determination and independence. When the League of Nations was dissolved, the
original object of these obligations remained. Since their fulfillment did not depend on the existence of the league, they could not be
brought to an end merely because the supervisory organ had ceased to exist. The Members of the League had not declared, or
accepted even by implication, that the mandates would be canceled or lapse with the dissolution of the League. The Court observes
that the United Nations, as a successor of the League, acting through its competent organ, must be seen above all as the
supervisory institution competent to pronounce on the conduct of Mandatory.

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Judgment of Nuremberg Tribunal

Facts: On 8 August 1945, the Government of the United Kingdom of Great Britain and Northern Ireland,
the Government of the United States of America, the Provisional Government of the French Republic, and
the Government of the Union of Soviet Socialist Republics entered into an Agreement establishing this
Tribunal for the Trial of War Criminals whose offenses have no particular geographical location. By the
Charter annexed to the Agreement, the constitution, jurisdiction, and functions of the Tribunal were
defined. The Tribunal was vested with power to try and punish persons who had committed Crimes
against Peace, War Crimes, and Crimes against Humanity as defined in the Charter. The Charter also
provided that at the Trial of any individual member of any group or organization the Tribunal may declare
(in connection with any act of which the individual may be convicted) that the group or organization of
which the individual was a member was a criminal organization. In Berlin, on 18 October 1945, in
accordance with Article 14 of the Charter, an Indictment was lodged against the defendants, who had
been designated by the Committee of the Chief Prosecutors of the signatory Powers as major war
criminals.
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.
The Trial, which was conducted in four languages - English, Russian, French, and German - began on 20
November 1945, and pleas of "Not Guilty" were made by all the defendants except Bormann.
Much of the evidence presented to the Tribunal on behalf of the Prosecution was documentary evidence,
captured by the Allied armies in German army headquarters, Government buildings, and elsewhere.
Some of the documents were found in salt mines, buried in the ground, hidden behind false walls and in
other places thought to be secure from discovery. The case, therefore, against the defendants rests in a
large measure on documents of their own making, the authenticity of which has not been challenged
except in one or two cases.
The individual defendants are indicted under Article 6 of the Charter creating the International Military
Tribunal, which provides as follows:
"Article 6. The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and
punishment of the major war criminals of the European Axis countries shall
have the power to try and punish persons who, acting in the interests of the European Axis countries,
whether as individuals or as members of organizations, committed any of the following crimes:
- "The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there
shall be individual responsibility:
"(a) Crimes Against Peace: namely, planning, 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:
"(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be
limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of
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:
"(c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other
inhumane acts committed against any civilian population, before or during the war, or persecutions on
political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of
the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
"Leaders, organizers, instigators, and accomplices, participating in the formulation or execution of a
common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by
any persons in execution of such plan."
In their Motion, defendants argued that neither in the statute of the League of Nations, world organization
against war, nor in the Kellogg-Briand Pact, nor in any other of the treaties which were concluded after
1918 in attempts to ban aggressive warfare, is it provided that those men who are respoinsible for
unleashing an unjust war be tried and sentenced by an International Tribunal. In fact it is an unambigous
practice on several occasions in the past that the League had to decide upon the lawfulness or
unlawfulness of action by force of one member against another member, but it always condemned such
action by force merely as a violation of international law by the State, and never thought of bringing up for
trial the statesmen, generals, and industrialists of the state which recurred to force. And that the present
Trial therefore, cannot invoke existing international law; it is rather a proceeding pursuant to a new penal
law, a penal law enacted only after the crime. And this is repugnant to a principle of jurisprudence sacred
to the civilized world, that only he can be punished who offended against a law in existence at the time of
the commission of the act. Therefore, the provisions under which the defendants are sought to be
penalized is an ex post facto law and, thus, unjust. To the same effect, the penal character contained by
the provisions in the Charter is in contradiction with the maxim, "Nulla Poena Sine Lege".
The defense also pointed out that the Judges have been appointed exclusively by States which were the
one party in this war. This one party to the proceeding is all in one: creator of the statute of the Tribunal
and of the rules of law, prosecutor and judge, contrary to common legal conception that neutrals, or
neutrals and representatives of all parties, should be called to the Bench. This principle has been realized
in an exemplary manner in the case of the Permanent Court of International Justice at The Hague.

Issues: 1. WON the tribunal has jurisdiction to hear the case

2. WON the penal provisions are ex post facto laws and violate the maxim nulla poena sine lege
3. WON international law applies even to individuals
4. WON the defendants are guilt of crimes against peace, war crimes, and crimes against
humanity, including conspiracy to commit said crimes

Held: 1. YES. The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes
coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out
in Article 6. The law of the Charter is decisive, and binding upon the Tribunal. The making of the Charter
was the exercise of the sovereign legislative power by the countries to which the German Reich
unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied
territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on
the part of the victorious Nations, but in the view of the Tribunal, it is the expression of international law
existing at the time of its creation; and to that extent is itself a contribution to international law.
The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations
for the proper conduct of the Trial. In doing so, they have done together what any one of them might have
done singly; for it is not to be doubted that any nation has the right thus to set up special courts to
administer law.

2. NO. In the first place, it is to be observed that the maxim nullumn crimen sine lege is not a limitation of
sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in
defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue,
for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to
punish him, it would be unjust if his wrong were allowed to go unpunished. Occupying the positions they
did in the Government of Germany, the defendants, or at least some of them must have known of the
treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they
must have known that they were acting in defiance of all international law when in complete deliberation
they carried out their designs of invasion and aggression. The General Treaty for the Renunciation of War
of 27 August 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on
63 nations, including Germany, Italy, and Japan at the outbreak of war in 1939. In the preamble, the
signatories declared that they were: "Deeply sensible of their solemn duty to promote the welfare of
mankind; persuaded that the time has come when a frank renunciation of war as an instrument of national
policy should be made to the end that the peaceful and friendly relations now existing between their
peoples should be perpetuated . . . . all changes in their relations with one another should be sought only
by pacific means . . . thus uniting civilised nations of the world in a common renunciation of war as an
instrument of their national policy . . . ." The first two articles are as follows:
"Article I. The High Contracting Parties solemnly declare in the names of their respective peoples that they
condemn recourse to war for the solution of international controversies and renounce it as an instrument of
national policy in their relations to one another."
"Article 11. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of
whatever nature or whatever origin they may be, which may arise among them, shall never be sought except
by pacific means."
The nations who signed at the Pact or adhered to it unconditionally condemned recourse to war for the
future as an instrument of policy, and expressly renounced it. In the opinion of the Tribunal, the solemn
renunciation of war as an instrument of national policy necessarily involves the proposition that such a
war is illegal in international law; and that those who plan and wage such a war, with its inevitable and
terrible consequences, are committing a crime in so doing. War for the solution of international
controversies undertaken as an instrument of national policy certainly includes a war of aggression, and
such a war is therefore outlawed by the Pact.
But it is argued that the Pact does not expressly enact that such wars are crimes, or set up courts to try
those who make such wars. To that extent the same is true with regard to the laws of war contained in the
Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war.
These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper
use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the
date of the Convention; but since 1907 they have certainly been crimes, punishable as offenses against
the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any
sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past,
however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare
laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing
that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague
Convention. In interpreting the words of the Pact, it must be remembered that international law is not the
product of an international legislature, and that such international agreements as the Pact of Paris have to
deal with general principles of law, and not with administrative matters of procedure. The law of war is to
be found not only in treaties, but in the customs and practices of states which gradually obtained universal
recognition, and from the general principles of justice applied by jurists and practised by military courts.
At the meeting of the Assembly of the League of Nations on 24 September 1927, all the delegations then
present (including the German, the Italian, and the Japanese), unanimously adopted a declaration
concerning wars of aggression. The preamble to thedeclaration stated:
"The Assembly: Recognizing the solidarity which unites the community of nations; Being inspired by a
firm desire for the maintenance of general peace; Being convinced that a war of aggression can never
serve as a means of settling international disputes, and is in consequence an international crime . . ."
All these expressions of opinion, and others that could be cited, so solemnly made, reinforce the
construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not
merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world,
finds its expression in the series of pacts and treaties to which the Tribunal has just referred.
It is also important to remember that Article 227 of the Treaty of Versailles provided for the constitution of
a special Tribunal composed of representatives of five of the Allied and Associated Powers which had
been belligerents in the first World War opposed to Germany, to try the former German Emperor "for a
supreme offense against international morality and the sanctity of treaties." The purpose of this trial was
expressed to be "to vindicate the solemn obligations of international undertakings, and the validity of
international morality". In Article 228 of the Treaty, the German Government expressly recognized the
right of the Allied Powers "to bring before military tribunals persons accused of having committed acts in
violation of the laws and customs of war".
3. YES. It was submitted that international law is concerned with the actions of sovereign States, and
provides no punishment for individuals; and further, that where the act in question is an act of State, those
who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the
State. In the opinion of the Tribunal, both these submissions must be rejected. That international law
imposes duties and liabilities upon individuals as well as upon States has long been recognized. In the
recent case of Ex Parte Quirin (1942 317 U.S.I), before the Supreme Court of the United States, persons
were charged during the war with landing in the United States for purposes of spying and sabotage. The
late Chief Justice Stone, speaking for the Court, said:
"From the very beginning of its history this Court has applied the law of war as including that part of the
law of nations which prescribes for the conduct of war, the status, rights, and duties of enemy nations as
well as enemy individuals."
He went on to give a list of cases tried by the Courts, where individual offenders were charged with
offenses against the laws of nations, and particularly the laws of war. Many other authorities could be
cited, but enough has been said to show that individuals can be punished for violations of international
law. Crimes against international law are committed by men, not by abstract entities, and only by
punishing individuals who commit such crimes can the provisions of international law be enforced.
The provisions of Article 228 of the Treaty of Versailles already referred to illustrate and enforce this view
of individual responsibility. The principle of international law, which under certain circumstances protects
the representatives of a state, cannot be applied to acts which are condemned as criminal by international
law. The authors of these acts cannot shelter themselves behind their official position in order to be freed
from punishment in appropriate proceedings.
Article 7 of the Charter expressly declares:
"The official position of Defendants, whether as heads of State, or responsible officials in Government
departments, shall not be considered as freeing them from responsibility, or mitigating- punishment."
On the other hand the very essence of the Charter is that individuals have international duties which
transcend the national obligations of obedience imposed by the individual state. He who violates the laws
of war 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 was also submitted on behalf
of most of these defendants that in doing what they did they were acting under the orders of Hitler, and
therefore cannot be held responsible for the acts comitted by them in carrying out these orders.
The Charter specifically provides in Article 8:
"The fact that the 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."
The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill
or torture in violation of the international law of war has never been recognized as a defense to such acts
of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment.
The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of
the order, but whether moral choice was in fact possible.
4.YES. As to crimes against peace, it is clear that planning, preparation had been carried out in the most
systematic way at every stage of the history. The Nazi Party is spoken--of as "the instrument of cohesion
among the Defendants' for carrying out the purposes of the conspiracy -the overthrowing of the Treaty of
Versailles, acquiring territory lost by Germany in the last war and' "Lebensraum" in Europe, by the use, if
necessary, of armed force, of aggressive war. The "seizure, of power" by the Nazis, the use of terror, the
destruction of trade unions, the attack on Christian teaching and on churches, the persecution of Jews,
the regimentation of youth - all these are said to be steps deliberately taken to carry out the common plan.
It found expression, so it is alleged, in secret rearmament, the withdrawal by Germany from the
Disarmament Conference and the League of Nations, universal military service, and seizure of the
Rhineland. Finally, according to the Indictment, aggressive action was planned and carried out against
Austria and Czechoslovakia in 1936-1938, followed by the planning and waging of war against Poland;
and, successively, against 10 other countries.
The truth of the situation was well stated by Paul Schmidt, official interpreter of the German Foreign
Office, as follows:
"The general objectives of the Nazi leadership were apparent from the start, namely the domination of the
European Continent, to be achieved first by the incorporation of all German speaking groups in the Reich,
and secondly, by territorial expansion under the slogan "Lebensraum". The execution of these basic
objectives, however, seemed to be characterized by improvisation. Each succeeding step was apparently
carried out as each new situation arose, but all consistent with the ultimate objectives mentioned above."
The argument that such common planning cannot exist where there is complete dictatorship is unsound.
A plan in the execution of which a number of persons participate is still a plan, even though conceived by
only one of them; and those who execute the plan do not avoid responsibility by showing that they acted
under the direction of the man who conceived it. Hitler could not make aggressive war by himself. He had
to have the co-operation of statesmen, military leaders, diplomats, and business men. When they, with
knowledge of his aims, gave him their co-operation, they made themselves parties to the plan he had
initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they
were doing. That they were assigned to their tasks by a dictator does not absolve them from responsibility
for their acts. The relation of leader and follower does not preclude responsibility here any more than it
does in the comparable tyranny of organized domestic crime.
As to war crimes and crimes against humanity, apply what you learned in history lol. Basically lahat ng
enumerated sa Article 6 ng Charter ginawa ng Germany. Of note is the killing even of those who already
surrendered, extermination of the Jews through the “Final Solution”, enslavement of of Slavs, all kinds of
human experimentation on their prisoners.
Also as regards the war crimes, a further submission was made that Germany was no longer bound by
the rules of land warfare in many of the territories occupied during the war, because Germany had
completely subjugated those countries and incorporated them into the German Reich, a fact which gave
Germany authority to deal with the occupied countries as though they were part of Germany. In the view
of the tribunal it is unnecessary in this case to decide whether, this doctrine of subjugation, dependent as
it is upon military conquest, has any application where the subjugation is the result of the crime of
aggressive war. The doctrine was never considered to be applicable so long as there was an army in the
field attempting to restore the occupied countries to their true owners, and in this case, therefore, the
doctrine could not apply to any territories occupied after 1 September 1939.

-------------------------------------------------------------------------------------------------------------------------------
-------------
Doctor's Trial
(USA v. Karl Brandt)

FACTS: The Doctors' trial (officially United States of America v. Karl Brandt, et al.) was the first
of 12 trials for war crimes of German doctors that the United States authorities held in their
occupation zone in Nuremberg, Germany, after the end of World War II. These trials were held
before US military courts, not before the International Military Tribunal, but took place in the
same rooms at the Palace of Justice. The trials are collectively known as the "Subsequent
Nuremberg Trials", formally the "Trials of War Criminals before the Nuremberg Military
Tribunals" (NMT).

Twenty of the 23 defendants were medical doctors, one of which is Karl Brandt, and
were accused of having been involved in Nazi human experimentation and mass murder under
the guise of euthanasia. Karl Brandt was Adolf Hitler’s personal physician. As such, Brandt was
very much part of Hitler’s inner circle. Brandt was involved in the euthanasia programme in Nazi
Germany and in Occupied Europe. After World War Two ended Brandt was arrested and put on
trial for crimes against humanity.

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 that the defendants herein participated in a Common Design or Conspiracy to commit
and did commit War Crimes and Crimes against Humanity, as defined in Control Council Law
No. 10, duly enacted by the Allied Control Council on 20 December 1945. The accused faced
four charges, including:
1. Conspiracy to commit war crimes and crimes against humanity as described in
counts 2 and 3;
2. War crimes: performing medical experiments, without the subjects' consent, on
prisoners of war and civilians of occupied countries, in the course of which
experiments the defendants committed murders, brutalities, cruelties, tortures,
atrocities, and other inhuman acts. Also planning and performing the mass
murder of prisoners of war and civilians of occupied countries, stigmatized as
aged, insane, incurably ill, deformed, and so on, by gas, lethal injections, and
diverse other means in nursing homes, hospitals, and asylums during the
Euthanasia Program and participating in the mass murder of concentration camp
inmates.
3. Crimes against humanity: committing crimes described under count 2 also on
German nationals.
4. Membership in a criminal organization, the SS.

ISSUE/S: WON Karl Brandt is guilty of the indictments

HELD: YES. After a defense led by Robert Servatius, on August 19, 1947, Brandt was found
guilty on counts 2-4 of the indictment. With six others, he was sentenced to death by hanging,
and all were executed at Landsberg Prison on June 2, 1948. Nine other defendants received
prison terms of between fifteen years and life, while a further seven were found not guilty.

Several passages of the judgement demonstrate that knowledge was decisive when
establishing individual criminal liability of defendants. Knowledge of the fact that human subjects
could be made available for experimentation was deemed sufficient by the Tribunal to hold
Brandt criminally responsible under counts 2-4 of the indictment. A fundamental principle of
Criminal Law is that a crime consists of both a mental and a physical element. Mens rea, a
person's awareness of the fact that his or her conduct is criminal, is the mental element, and
actus reus, the act itself, is the physical element.

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-------------
Milch Case
United States of America v. Erhard Milch, et al.

FACTS: Erhard Milch was an Inspector-General and a Field-Marshal in the German Air Force,
Aircraft Master General, Member of the Central Planning Board and Chief of the Jaegerstab (a
group of people organized for the purpose of planning for the increased production of fighter
aircraft). He was indicted for deportations, forced labour and illegal experiments among others.
His case for these war crimes and crimes against humanity was heard by Military Tribunal II in
the Palace of Justice at Nuernber (a city in Germany).

The charges against Milch were summarized by Michael A. Musmanno (one of the tribunal
judges) as follows:
 1. War Crimes. Erhard Milch is charged with having knowingly committed war crimes as
principal and accessory in enterprises involving slave labor and having also willingly and
knowingly participated in enterprises involving the use of prisoners of war in war
operations contrary to international convention and the laws and customs of war.

2. War Crimes. The defendant is accused of having knowingly and willfully participated in
enterprises involving fatal medical experiments upon subjects without their consent.

3. Crimes Against Humanity. In the third count the defendant is charged with responsibility
for slave labor and fatal medical experiments, in the same manner as indicated in the
first two counts, except that here the alleged victims are declared to be German
nationals and nationals of other countries.

These acts constituting counts 1 and 2 were said to " constitute violations of international
conventions, particularly of Articles 4,5, 6, 7, 46, and 52 of the Hague Regulations, 1907, and of
Articles 2, 3, 4,6, and 31 of the Prisoner-of-War Convention (Geneva, 1929), the laws, and
customs of war, the general principles of criminal law as derived from the criminal laws of all
civilized nations, the internal penal laws of the countries in which such crimes were committed,
and" Article II of Control Council Law No. 10".

While count three charged similar participation in crimes against humanity, involving the same
unlawful acts as specified in Counts One and Two, but committed against "German nationals
and nationals of other countries ".These alleged crimes against humanity were said to
constitute violations of international conventions, the laws and customs of war, the general
principles of criminal law as derived from the criminal laws of all civilized nations, the internal
penal laws of the countries in which such crimes were committed, and Article II of Control
Council Law No. 10"

Milch pleaded "not guilty" on all charges. The tribunal found Milch guilty on counts 1 and 3, but
acquitted him on count 2 of the indictment. Milch was sentenced to life imprisonment at Rebdorf
Prison, near Munich. The sentence was commuted to 15 years of imprisonment in 1951. Milch
was paroled in June 1954.

During his incarceration, Milch filed an application for leave to file a petition for a writ of habeas
corpus before the United States Supreme Court. The Court denied leave on jurisdictional
grounds by a vote of 4, with another four justices voting for a full hearing on the issue of
jurisdiction, and Justice Jackson recusing himself.

ISSUE/S: Whether or not the Geneva Convention as it relates to the treatment of war prisoners
is applicable in this case
HELD: NO. : It is clear that the Russian prisoners were utilized at the guns and that this
type of use of prisoners of war represents an extreme violation of the laws and customs
of war.

It has been argued by the defense that since Russia had denounced adherence to the
Geneva Convention, Germany was not compelled to treat Russian prisoners with the
limitations laid down in that convention.

German Admiral Canaris on 15th' September, 1941, in a memorandum of counsel to the

German High Command, declared that despite Russia's attitude on the Geneva
Convention her prisoners were yet entitled to immunities guaranteed under the rules and
customs of war:

The Geneva Convention for the treatment of prisoners of war is not binding in the
relationship between Germany and the USSR. Therefore only the principles of general
international law on the treatment of prisoners of war apply. Since the 18th Century
these have gradually been established along the lines that war captivity is neither
revenge nor punishment, but solely protective custody. The only purpose of which is to
prevent the prisoners of war from further participation in the war. This principle was
developed in accordance with the view held by all armies that it is contrary to military
tradition to kill or injure helpless people. The decrees for the treatment of Soviet
prisoners of war enclosed are based on a fundamentally different viewpoint

----------------------------------------------------------------------------------------------------------------------------
UUnited 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 (nullum 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.

----------------------------------------------------------------------------------------------------------------------------
TITLE Pohl Trial (USA v. Oswald Pohl)
FACTS: In the Pohl case, the defendant Oswald Pohl was the head of the WVHA and the
defendants August Frank and Georg Loerner were his deputies. SS-Obergruppenführer Oswald
Pohl and 17 other SS officers employed by the SS Main Economic and Administrative Office
(abbreviated in German as SS-WVHA), were tried for war crimes and crimes against humanity
committed during the time of the Nazi regime. The main charge against them was their active
involvement in and administration of the "Final Solution". The WVHA was the Nazi government
office that ran the concentration and extermination camps. It also handled the procurement for
the Waffen SS and, as of 1942, the administration of the SS-Totenkopfverbände.

The indictment contained four counts: participation in a common design or conspiracy to commit
war crimes and crimes against humanity; war crimes against civilians of German occupied
territories and POWs in concentration camps (which the WVHA took control of in the spring of
1942); crimes against humanity against German civilians and nationals of other countries; and
membership in the SS, recently declared a criminal organization by the International Military
Tribunal.

Indictment

Count 1
1. Conspiracy to commit war crimes and crimes against humanity, including: financing the
SS; operation of concentration camps and labor camps, and the imprisonment,
enslavement, torture, and murder of inmates; supply of inmate labor to German
enterprises; use of inmates for medical experiments (epidemic jaundice, food, freezing,
high altitude, malaria, phlegmon, poison gas, polygal, seawater, sterilization,
sulfanilamide, typhus);
2. participation in the extermination of the Jews;
3. sterilization of targeted groups;
4. mistreatment of prisoners of war;
5. participation in the euthanasia program;
 6. deportation of citizens of occupied territories, plundering of their property, and
exploitation of their labor.

Count 2
1. War crimes.
2. Crimes against citizens of occupied territories and prisoners of war between Sep 1939
and Apr 1945, including: imprisonment in concentration and labor camps; excessive
work and inadequate care in the camps; mistreatment in transports and marches;
murder, torture, and ill-treatment of inmates; medical experiments on inmates;
sterilization of inmates; plundering of property; deportation of civilians and resettlement
of "Aryans" in occupied territories; mass executions of Jews, Poles, and Russians; and
persecution of clergymen, intellectuals, and other elements of targeted nationalities.

Count 3
1. Crimes against humanity.
2. Crimes against German civilians and nationals of other countries under German civil
government between Sep 1939 and April 1945, including the acts specified in counts 1
and 2.

Count 4
1. Membership in a criminal organization. All of the defendants except Hohberg were
charged with membership in the SS.

All the defendants were indicted under the first three counts, and all but one under the fourth
count. The trial lasted from April 8 until September 22 and the Tribunal delivered its judgment
and sentences on November 3. The first count of the indictment (conspiracy) was disregarded
and judgments were delivered only on the last three counts. Three of the defendants were
acquitted, but the rest were found guilty: two under only the second and third counts and
thirteen under the second, third, and fourth counts.

The Tribunal sentenced four of the guilty defendants to death, three to life in prison, and eight to
prison terms of 10, 20, or 25 years. Seven months later, however, the Military Governor,
General Lucius D. Clay, reconvened Military Tribunal II, at the request of the judges, so the
defendants could file additional briefs. After hearing more evidence presented on behalf of the
defendants, the Tribunal returned its supplemental judgment on August 11, 1948, reaffirming its
findings for all the defendants as well as the sentences for all but four. One of the death
sentences was reduced to life imprisonment, one life sentence to 20 years in prison, one 25
year term to 20 years, and one 20 year term to 15 years. The Military Governor confirmed the
revised sentences on April 30 and May 11, 1949.

The proceedings chief defendant, head of the Economic and Administrative Main Office, Oswald
Pohl, was executed on June 8, 1951.

ISSUE/S: Whether defendant Pohl is guilty of war crimes and crimes against humanity, as
alleged in counts two and three of the indictment.

HELD: Tribunal determines that the defendant Pohl is guilty of war crimes and crimes
against humanity, as alleged in counts two and three of the indictment. OSTI was simply
another manifestation of the policy of slave labor and appropriation of private property. Under a
plan which was perhaps devised to give some semblance of legality to this inherently lawless
plan, Pohl was designated as a trustee of the properties seized in the East and operated by
OSTI. This was a strange species of trusteeship. In an attempt at partial exculpation, Pohl has
submitted in evidence a decree, dated 28 February 1933, signed by Reich President von
Hindenburg and Chancellor Hitler, suspending the provisions of the Weimar Constitution, which
guaranteed personal freedom, freedom of speech and of the press, the right of assembly,
privacy of communication, and immunity from search. The Secret State Police were given
almost unlimited power over persons and property, independent of any obligations and tree from
restraint or review. They became the supreme authority of the 33 land. Upon the promulgation
of this decree, Germany became a police state and the liberty and lives of all German citizens
were dependent upon the whims of men like Heydrich and Kaltenbrunner. It is to be assumed
that if this is the kind of national government the people of Germany preferred, they were
entitled to it. when the attempt is made to make the provisions of such a decree extra-territorial
in their effect and to apply their totalitarian and autocratic police measures to non-Germans and
in non-German territory, they thereby invaded the domain of international law, where reason still
rules. The Nazi leaders, drunk with power, could abuse and deceive the German people just as
long as the German people submitted, but when they extended their tyranny into foreign lands
and attempted to justify it by the provisions of local German Law, their arrogance became over-
extended and a power superior to Hitler's came into play to stop them.

----------------------------------------------------------------------------------------------------------------------------

TITLE: Flick Trial ( USA v. Friedrich Flick)

FACTS: Friedrich Flick was the principal proprietor, dominating Influence and active head of a
large group of industrial enterprises, including coal and iron ore mines and steelproducing and
manufacturing plants, commonly referred to as the " Flick concern". He was also a member of
the supervisory board of numerous other large industrial and financial companies. The other five
accused in this trial were leading officials of numerous Flick enterprises. During the Second
World War, Flick became an important leader of the military economy, member of the official
bodies for regulation of the coal, iron and steel industries, and a member of a Governmentally
sponsored company for exploitation of the Russian mining and smelting industries.

All the defendants were accused of responsibility for enslavement and deportation to slave
labour of a great number of civilians from populations of countries and territories under
belligerent occupation and the use of prisoners of war in work having a direct relation to war
operations, including the manufacture and transportation of armament and munitions. All the
defendants except one were also accused of spoliation of public and private property in
occupied territories. Flick and two others were further accused of crimes against humanity in
compelling, by means of anti-Semitic economic pressure, the Jewish owners of certain industrial
properties to part with title thereto. Flick and Steinbrinck were accused of having, as members
of the "Keppler Circle" or "Friends of Rimmler," contributed large sums to the finances of the
S.S. Finally, one defendant was accused of membership in the S.S. in circumstances which
were alleged to incriminate him under the ruling of the International Military Tribunal in
Nuremberg regarding criminal organisations. The Tribunal dismissed as being neither within its
jurisdiction, nor sustained by the evidence, the Count charging Flick and two others with crimes
against humanity as far as the alleged compelling by anti-Semitic economic pressure of Jewish
owners of certain industrial properties to part with their title thereto was concerned.

ISSUE/S: Whether or not the Tribunal has jurisdiction

HELD: NONE, in so far as the relevance of Control Council Law No. 10 and of Ordinance
No. 7 of the United States Zone in Germany. The Tribunal commented briefly upon its own
legal nature and competence in the following words:
"The Tribunal is not a Court of the United States as that term is used in the Constitution of the
nited States. It is not a court martial. It is not a military commission. It is. an international tribunal
established by the International Control Council, the high legislative branch of the four Allied
Powers now controlling Germany. (Control Council Law No. 10 of 20th December, 1945.) The
Judges were legally appointed by the Military Governor and the later act of the President of the
United States in respect to this was· nothing more than a confirmation of the appointments by
the Military Governor. The Tribunal administers international law. It is not bound by the general
statutes ofthe United States or even by those parts ofits Constitution which relate to courts of
the United States.”

YES. In so far as the jurisdiction of the Tribunal in the criminal responsibility of the
defendants, the Tribunal opined:
" It is noteworthy that the defendants were not charged with planning, preparation, nitiation or
waging a war of aggression or with conspiring or co-operating with anyone to that 'end. Except
as to some of Steinbrinck's activities the accused were not officially connected with Nazi
Government, but were private citizens engaged as business men in the heavy industry of
Germany. Their counsel, and Flick himself in his closing unsworn statement, contended that in
their persons industry itself is being persecuted.The question of the responsibility of individuals
for such breaches of international law as constitute crimes, has been widely discussed and is
settled in part by the judgment of the I.M.T. It cannot longer be successfully maintained that
international law is concerned only with the actions of sovereign States and provides no
punishment for individuals. That international law imposes duties and liabilities upon individuals
as well as upon States has long been recognised.It is asserted that international law is a matter
wholly outside the work, interest and knowledge of private individuals. The distinction is
unsound. International law, as such, binds every citizen just as does ordinary municipal
law. Acts adjudged criminal when done by an officer of the Government are criminal also
when done by a private individual.
----------------------------------------------------------------------------------------------------------------------------
TITLE: IG Farben (US vs Carl Krauch)

FACTS: Carl Krauch and the twenty-two others indicted in this trial were all officials of I.G.
Farben Industrie A.G. (InteressenGemeinschaft Farbenindustrie Aktiengesellschaft). The I.G.
Farbenindustrie A.G. itself was not indicted in this trial, but it was alleged by the Prosecution
that Carl Krauch and the other twenty-two accused" acting through the instrumentality of Farben
and otherwise" had, during a period of years preceding 8th May, 1945, committed Crimes
against Peace, War Crimes and Crimes against Humanity and participated in a common plan or
conspiracy to commit these Crimes-all as defined in Control Council Law No. 10. These crimes
were said to include planning, preparation, initiation and waging .wars of aggression alld
invasions of other countries, as a result of which incalculable destruction was wrought
throughout the world, millions of people were killed and many millions suffered, deportation to
slave labour of members of the civilian population of the invaded countries and the
enslavement, ill-treatment, terrorisation, torture and murder of numerous persons, including
German nationals as well as foreign nationals; plunder and spoliation of public and private
property in the invaded countries pursuant to deliberate plans and policies, intended not only to
strengthen Germany in launching its invasions and waging its aggressive wars and secure the
permanent economic domination by Germany of the continent of Europe, but also to expand the
private empire of the accused; as well as other crimes such as the production and supply of
poison gas for experimental purposes on and the extermination of concentration camp inmates,
the supply of Farben drugs for experiments on such inmates, 1 2 CARL KRAUCH participation
in the Reich Slave Labour programme, the employment of forced labour, concentration camp
inmates and prisoners of war in work having a direct relation to war work and under inhuman
conditions, membership of criminal organisations, etc.

One of the accused, Brueggemann, was found unfit to stand trial.

All of the accused were found not guilty in so far as they had been charged with Crimes against
Peace and with participation in the conspiracy (Counts I and V).

The accused Schneider and the two others were also acquitted in so far as they had been
charged with membership of a criminal organisation (the S.S.) under Count IV.

Krauch and thirteen of the other accused were acquitted on all points charged against them
under Count II (Plunder and Spoliation), whereas Schmitz and seven others were partly found
guilty and partly not guilty under this Count.
As to Count III (Participation in the Slave Labour Programme, etc.) none of the accused were
found guilty in so far as they had been charged with criminal responsibility for the production
and supply of poison gas and drugs to the concentration camps, whereas Krauch and four
others of the accused were found guilty of the charges alleging the employment of prisoners of
war, forced labour and concentration camp inmates in illegal work and under inhuman
conditions. The remainder of the accused were acquitted on all points charged against them
under this Count.
The thirteen convicted, including Carl Krauch, were sentenced to terms of imprisonment ranging
from seven to one and a half years. In its Judgment the Tribunal dealt with a number of legal
questions, as set out in the report.

ISSUE/S: WON Hague Regulations applies to the Occupation of Austria and the Sudetenland.

HELD: Hague Regulations Regarded as Not Applying to the Occupation of Austria and the
Sudetenland. The Judgment went on : " It is to be also observed that this Tribunal, in the above-
mentioned ruling of 22nd April, 1948, further held that the particulars set forth in Sections A and
B of Count II, as to property in Austria and the Sudetenland, would not constitute war crimes, as
the incidents occurred in territory not under the belligerent occupation of Germany.

" We held that, as a state of actual warfare had not been shown to exist as to Austria,
incorporated into Germany by the Anschluss, or as to -the SUdetenland, covered by the Munich
Pact, the Hague Regulations never became applicable. In so ruling, we do not ignore the force
of the argument that property situated in a weak nation which falls a victim to the aggressor
because of incapacity to resist should receive a degree of protection equal to that in cases of
belligerent occupation when actual warfare has existed. The Tribunal is required, however, to
apply international law as we find it in the light of the jurisdiction which we have under Control
Council L;J.w No. 10. We may not reach out to assume jurisdiction. Unless the action may be
said to constitute a war crime as a violation of the laws and customs of war, we are powerless to
consider the charges under our interpretation of Control Council Law No. 10, regardless of how
reprehensible conduct in regard to these property acquisitions may have been. The situation is
not the same here in view of the limited jurisdiction of this Tribunal, as it would be if, for
example, the criminal aspects of these transactions were being examined by an Austrian or
other court with a broader jurisdiction.

"In harmony with this ruling, the charges remaining to be disposed under Count II involve a
determination of whether or not the proof sustains the allegations of the commission of war
crimes by any defendant with reference to property located in Poland, France, Alsace-Lorraine,
Norway, and Russia."

-------------------------------------------------------------------------------------------------------------------------------
-------------

Hostages Trial (US v. Wilhelm List

FACTS: The indictment of May 10, 1947 charged 12 accused with four counts of unlawfully,
willfully, and knowingly committing war crimes and crimes against humanity as defined in Article
II of Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and
Against Humanity, Allied Control Council for Germany, (1946) No. 3 Official Gazette 50, 20
December 1945 (Control Council Law No. 10). In must be noted that all of the accused are
senior figures in German Wehrmacht, responsible for the Balkans Campaign. The prosecution
alleged that they were each principals in and accessories to the murder of thousands of persons
from the civilian population of then occupied Greece, Yugoslavia, Norway, and Albania by
German armed forces (1939-1945). It was further submitted that they were actively engaged in
a deliberate scheme of terrorism, intimidation, torture, deportation, imprisonment in
concentration camps, plunder, and destruction unjustified by military necessity.
Essentially, the accused faced four charges of having committed war crimes and crimes
against humanity:
1. Mass murder of hundreds of thousands of civilians in Greece, Albania,
and Yugoslavia by having ordered hostage taking and reprisal killings.
2. Plundering and wanton destruction of villages and towns in Greece,
Albania, Yugoslavia.
3. Murder and ill-treatment of prisoners of war, and arbitrarily designating
combatants as "partisans", denying them the status of prisoners of war, as well as their
killing.
4. Murder, torture, deportation, and sending to concentration camps of
Greek, Albanian, and Yugoslav civilians.
In all charges, the accused pleaded not guilty. However, the prosecution argued that
each of the accused was central to the implementation of the policy by which hundreds and
thousands of civilians were detained and executed in retaliation for attacks against German
troops by lawfully constituted military forces and unlawful partisan groups. It was alleged that
the accused issue, distribute, and implemented orders for the execution of 100 hostages for
each German soldier killed and 50 hostages for each German soldier wounded. Military
necessity has been invoked by the defendants as justifying the killing of innocent members of
the population and the destruction of villages and towns in the occupied territory
Fearing prosecution, the accused Franz Boehme committed suicide prior to the
commencement of proceeding. One fell ill and was declared physically unfit to appear in Court
for trial. A motion for suspension was then granted. Eventually, trial ensued.

ISSUE/S: 1. Whether international law permitted an occupying force to take hostages from the
civilian population as a guarantee against attacks by unlawful resistance forces, and whether
they had the right to execute these hostages in the event that a unilateral guarantee was
violated
2. Whether guerilla forces were considered lawful belligerents under the Hague
Convention (Iv) Respecting the Laws and Customs of War on Land and its annex: Regulations
Concerning the Laws and Customs of War on Land

HELD: Eight of the accused were found guilty on at least one count. The accused List and
Kuntze received sentences of life imprisonment, while the accused Rendulic, Felmy, Lanz,
Dehner, von Leyser and Speidel received sentences of between seven and 20 years
imprisonment. Foertsch and von Geitner were found not guilty on all charges.
The provision of an all inclusive definition of international law had the potential to restrict
the future growth and development of this body of law. A system of law whose growth was
dependant on the crystallization of generally prevailing custom and practice must not be
confined within the limits of formal pronouncement. It was appropriate to simply state that
international law consisted of the principles which controlled or governed relations between
nations and their nationals.
There were six generally accepted sources of international law: (i) customs and
practices accepted by civilized nations; (ii) treaties, conventions and other forms of interstate
agreements; (iii) the decisions of international tribunals; (iv) the decisions of national tribunals
dealing with international questions; (v) the opinions of suitably qualified commentators; and (vi)
the diplomatic papers. While these sources provided a frame upon which a system of
international law could be built, it was in no sense rigid and was capable of expanding in order
to adapt to changing circumstances. To place the principles of international law in a formalistic
strait-jacket would ultimately destroy any effectiveness that it had acquired.
The term ‘customs and practices accepted by civilized nations generally’ was applicable
not just to the laws of war, but to fundamental principles of justice. If the rights of nations and
the rights of individuals who become involved in international relations were to be respected and
applied, the fundamental rules of justice commonly accepted by nations must be applied.
Accepting and applying this methodology, it was to be concluded that the rule that superior
orders was not a defense to a criminal act was a rule of fundamental criminal justice. Implicit
obedience to orders of superior officers was indispensable to any military apparatus. However,
this statement was applicable to lawful orders only. Members of the armed forces could not
escape criminal liability by obeying a command which violated international law and outraged
fundamental principles of justice. The fact that both the British Manual of Military Law and the
United States Rules of Land Warfare expressly recognized the defense of superior orders was
of no consequence. Army regulations were not a competent source of international law. They
were neither legislative nor judicial pronouncements. They were not competent for the purposes
of determining whether a fundamental principle of justice had been accepted by civilized nations
generally. International law had never approved the defensive plea of superior orders as a
mandatory bar to the prosecution of war criminals.
It was the duty of the Tribunal to determine if the acts charged were recognized as
crimes at the time of their commission and that Control Council Law No 10 was declaratory of
international law as it existed at the time relevant to the indictment. The crimes defined in
Control Council Law No 10 were crimes under pre-existing rules of international law, as
exemplified by the Hague Convention (IV) Respecting the Laws and Customs of War on Land
and its annex: Regulations Concerning the Laws and Customs of War on Land entered into
force 26 January 1910 (‘Hague Convention IV of 1907’). If the acts charged were in fact crimes
under international law when committed, they could not be said to be ex post facto acts or
retroactive pronouncements. The absence of both an international tribunal and a clear indication
of the penalties to be imposed in the event of a violation were not fatal to the validity of this body
of law.
 Whether an invasion had developed into an occupation was a question of fact. The term
‘invasion’ implied a military operation, while an ‘occupation’ indicated the exercise of
governmental authority to the exclusion of established government. According to Article 4 of the
Hague Convention IV of 1907, ‘territory is considered occupied when it is actually placed under
the authority of the hostile army. The occupation extends only to the territory where such
authority has been established and can be exercised.’ It was evident that the German armed
forces were able to maintain control of Greece and Yugoslavia until their withdrawal in late
1944. International law charged the Commanding General of an occupied territory with the task
of preserving order, punishing crime, and protecting lives and property within the occupied
territory. However, the Hague Convention IV of 1907 (especially Articles 46, 47, 48, 50, and 51)
placed strict restrictions on the manner in which these responsibilities were to be fulfilled.
The law of war afforded the same status and protection to guerrilla forces as it did to
spies. In effect this meant that captured guerrilla fighters may be lawfully shot for deterrent
purposes. In no other way could an army guard protect itself from the gadfly tactics of armed
resistance. Members of such resistance must accept the increased risks in this mode of fighting.
Such forces were technically not lawful belligerents and were not entitled to protection as
prisoners of war when captured. A civilian who aided, abetted or participated in the fighting was
liable to punishment as a war criminal under the laws of war. Fighting was legitimate only for the
combatant personnel of a country. It was only this group that was entitled to treatment as
prisoners of war and incurred no liability beyond detention after capture or surrender.
Article I of the Hague Convention IV of 1907 clearly established that members of a militia
or a volunteer corps would be afforded lawful combatant status if: (i) they were commanded by
a responsible person; (ii) they possessed some form of distinctive insignia recognizable at a
distance; (iii) they carried arms openly; and (iv) they observed the laws and customs of war.
International law made no distinction between a lawful and an unlawful occupant in
dealing with the respective duties of occupant and population in occupied territory. There was
no connection between the manner of the military occupation and the rights and duties of the
occupant and population to each other after the relationship had in fact been established.
A reprisal may not exceed the criminal act it was designed to correct. The taking of
hostages was based fundamentally on a theory of collective responsibility. Customary
international law dictated that hostages may be taken in order to guarantee the peaceful
conduct of the populations of occupied territories and, when certain conditions existed and the
necessary preliminaries had been taken, they may as a last resort, be shot. Hostages may not
be taken or executed as a matter of military expediency. The occupant was required to use
every available method to secure order and tranquillity before resort may be had to the taking
and execution of hostages. It was essential to a lawful taking of hostages under customary law
that proclamation be made, giving the names and addresses of hostages taken, notifying the
population that upon the recurrence of stated acts of war the hostages would be shot. The
number of hostages shot must not exceed in severity the offences the shooting was designed to
deter. While international law did not expressly prohibit this practice, the extent to which it was
employed by Nazi forces exceeded the most elementary notions of humanity and justice.
Reprisal prisoners may not be shot unless it could be shown that the population as a
whole was a party to the offence, either actively or passively.
 The trial record clearly established that the crimes charged in the indictment had been
committed. It was evident that the crimes charged constituted only a portion of a large number
of such acts which took place as a part of a general plan for subduing the countries of
Yugoslavia and Greece.
It was a ‘reproach upon the initiative and intelligence of the civilized nations of the world
that international law remained in many respects primitive in character’.
NO. The Tribunal began by ruling that, at the relevant time, Yugoslavia, Albania, Greece
and Norway were occupied territories within the meaning of the Hague Convention No. IV of
1907, and that the partisan bands, many of whose members were victims of the accused’s acts,
were not lawful belligerents within the terms of Article 1 of the Convention, (Footnote l: Article 1
provides : “The laws, rights and duties of war apply not only to the army, but also to militia and
volunteer corps fulfilling all the following conditions : (1) they must be commanded by a person
responsible for his subordinates ; (2) they must have a fixed distinctive sign recognizable at a
distance ; (3) they must carry arms openly ; and (4) they must conduct their operations in
accordance with the laws and customs of war. In countries where militia or volunteer corps
constitute the army, or form part of it they are included under the denomination 'armv'.”) but
guerrillas liable to be shot on capture.
The evidence shows that after the capitulation of the armies of Yugoslavia and Greece,
both countries were occupied within the meaning of International Law. It shows further that they
remained occupied during the period that List was Armed Forces Commander Southeast. It is
clear from the record also that the guerrillas participating in the incidents shown by the evidence
during this period were not entitled to be classed as lawful belligerents within the rules herein
before announced. We agree, therefore, with the contention of the defendant List that the
guerrilla fighters with which he contended were not lawful belligerents entitling them to prisoner
of war status upon capture. We are obliged to hold that such guerrillas were francs tireurs who,
upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility
attaches to the defendant List because of the execution of captured partisans in Yugoslavia and
Greece during the time he was Armed Forces Commander Southeast.
It would seem that in the Tribunal’s opinion, it would be possible for a fighting group to
be entitled to belligerent status under Article 1 of the Convention, even though not “supported by
an organized government”; and “where room exists for an honest error in judgment,” the
opposing commander “is entitled to the benefit thereof by virtue of. the presumption of his
innocence.”