CHAPTER EIGHT —INTERNATIONAL CRIMINAL LAW

Part 1 of 2

The term "international criminal law" is here used to signify the international law relating to war crimes, crimes against humanity, crimes against peace, membership in criminal organizations, and the crime of genocide. The judgment of the International Tribunal in the Hostages Trial referred to the sources of intemational criminal law as follows:

The sources of international law which are usually enumerated are (1) customs and practises accepted by civilized nations generally, (2) treaties, conventions and other forms of interstate agreements, (3) the decisions of international tribunals, (4) the decisions of national tribunals dealing with international questions, (5) the opinions of qualified text writers, and (6) diplomatic papers.⁽¹⁾

Similarly, the Tribunal acting in the Justice Trial said:

International law is not the product of statute. Its content is not static. The absence from the world of any governmental body, authorized to enact substantive rules of international law has not prevented the progressive development of that law. After the manner of the English common law it has grown to meet the exigencies of changing conditions.

It must be conceded that the circumstance which gives to principles of international conduct the dignity and authority of law is their general acceptance as such by civilized nations, which acceptance is manifested by international treaties, conventions, authoritative textbooks, practice and judicial decisions.⁽²⁾

DEVELOPMENT IN THE NINETEENTH CENTURY AND EARLY TWENTIETH CENTURY

The laws and customs of war and the laws governing military occupation of enemy territory and the protection of the civilian populations in occupied territories were formally recognized in the second half of the nineteenth century and at the beginning of the twentieth century through international agreements, covenants and declarations, the most important of which are the following:

1. The Declaration of Paris, 1856, concerning maritime law in time of war. Signed by seven Powers, acceded to later by all the maritime Powers.

2. The Geneva Convention, 1864, for the amelioration of wounded soldiers in armies in the field. Signed by nine Powers. Acceded to by almost all civilized States.

3. The Geneva Convention of 1906, signed in 1906, by thirty-five States. Its principles incorporated into the Hague Convention.

4. The Declaration of St. Petersburg, 1868, prohibiting the use in war of certain projectiles. Signed by seventeen States.

5. The Hague Declaration, concerning projectiles diffusing asphyxiating or deleterious gases, 1899.

6. The Hague Declaration, prohibiting the use of expanding bullets, 1899.

7. The Hague Convention, respecting the laws and customs of war on land. Signed in 1899, revised in 1907 in the Second Hague Conference.

8. The Third Hague Convention, concerning opening of hostilities, 1907.

9. The Fourth Hague Convention, respecting the laws and customs of war on land, 1907.

10. The Fifth Hague Convention, respecting the rights and duties of neutral Powers and persons in case of war on land, 1907.

11. The Sixth Hague Convention, relative to the status of enemy merchant ships at the outbreak of hostilities, 1907.

12. The Seventh Hague Convention, relative to the conversion of merchant ships into warships, 1907.

13. The Eighth Hague Convention, relative to the laying of automatic submarine contact mines, 1907.

14. The Ninth Hague Convention, respecting bombardment by naval forces in time of war, 1907.

15. The Tenth Hague Convention, for the adaption of the principles of the Geneva Convention to Maritime War, 1907.

16. The Eleventh Hague Convention, relative to certain restrictions on the exercise of the right of capture in maritime war, 1907.

17. The Thirteenth Hague Convention, respecting the rights and duties of neutral Powers in maritime war, 1907. 18. The first Hague Declaration, prohibiting the discharge of projectiles and explosives from balloons, 1899- 1907.

19. The London Declaration of 1909, concerning the laws of naval warfare, signed by ten States.⁽³⁾

CUSTOMS AND PRACTICES ACCEPTED BY CIVILIZED NATIONS GENERALLY

A rule of international law can be valid without being stated in any international agreement. The statement just quoted from the judgment delivered in the Justice Trial was followed by the comment that "it does not, however, follow from the foregoing statements that general acceptance of a rule of intemational conduct must be manifested by express adoption thereof by all civilized States." The judgment implicitly adopted a passage from Hyde's International Law pointing out that a binding rule of law could become established even by "the failure of interested States to make appropriate objection to practical applications of it." The Hostages Trial judgment stated: "In any event, the practices and usages of war which gradually ripened into recognized customs with which belligerents were bound to comply, recognized the crimes specified herein as crimes subject to punishment. It is not essential that a crime be specifically defined and charged in accordance with a particular ordinance, statute or treaty if it is made a crime by international convention, recognized customs and usages of war, or the general principles of criminal justice common to civilized nations generally.⁽⁴⁾

THE SECOND HAGUE PEACE CONFERENCE AND 1907 CONVENTION REGARDING THE LAWS AND CUSTOMS OF LAND WARFARE

The following are the relevant articles regarding belligerent occupation:⁽⁵⁾

Article 42: A territory is considered as being occupied when it is actually under the authority of the hostile army. The occupation extends only to the regions where this authority is established and capable of being asserted.

Article 45: Compelling the people of an occupied territory to take an oath of allegiance to a hostile power is prohibited.

Article 46: The honor and the rights of the family, the life of individuals, and private property, as well as religious convictions and religious worship, should be respected. Private property shall not be confiscated.

Article 47: Looting is positively forbidden.

Article 50: No public penalty, pecuniary or otherwise, shall be pronounced against the inhabitants on account of individual acts for which they cannot be considered collectively responsible.

Article 55: The occupying nation shall consider itself merely as the administrator and usufructuary of the public buildings, real estate, forests, and farms belonging to the hostile government and situated within the occupied territory. It shall protect this property and administer it in accordance with the rules governing usufruct.

Article 56: The property of communes, of institutions devoted to religious worship, charity, and instruction, or to arts and sciences, even when belonging to the government, shall be treated as private property.

THE INTERNATIONAL MILITARY TRIBUNAL AT NUREMBERG UPHELD THE VALIDITY OF THE 1907 HAGUE CONVENTION

After World War II the International Military Tribunal at Nurernberg upheld the validity of the 1907 Hague Convention as follows:

In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt "to revise the general laws and customs of war," which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter ....

"Although Czechoslovakia was not a party to the Hague Convention of 1907, the rules of land warfare expressed in this Convention are declaratory of existing international law and hence are applicable." The International Military Tribunal for the Far East expressed the following opinion:

"The effectiveness of some of the Conventions signed at The Hague on 18th October, 1907, as direct treaty obligations was considerably impaired by the incorporation of a so-called general participation clause' in them, providing that the Convention would be binding only if all the belligerents were party to it. The effect of this clause is, in strict law, to deprive some of the Conventions of their binding force as direct treaty obligations, either from the very beginning of a war or in the course of it as soon as a non-signatory Power, however insignificant, joins the ranks of the Belligerents. Although the obligation to observe the provisions of the Convention as a binding treaty may be swept away by operation of the 'general participation clause,' or otherwise, the Convention remains as good evidence of the customary law of nations, to be considered by the Tribunal along with all other available evidence in determining the customary law to be applied in any given situation."⁽⁶⁾

The Tribunal acting in the High Command Trial substantially adopted the opinion of the Nuremberg International Military Tribunal that the Hague Convention No. IV of 1907 had by 1939 become recognized as being merely declaratory of existing international law, and that its provisions bound all belligerents irrespective of signature and despite the "general participation" clause. The Tribunal conducting the Krupp Trial fully concurred in the opinion of the International Military Tribunal.⁽⁷⁾

THE 1919 PEACE CONFERENCE AND THE LEAGUE OF NATIONS

At the end of World War I, a Commission was appointed by the Peace Conference to examine the criminal responsibility for starting that war and for the acts committed during its conduct. The Commission, known as THE COMMISSION OF 15, came to the conclusion "that the gravity of these outrages committed during the war against the law of nations and international good faith is such that the Commission thinks they should be subject of a formal condemnation by the Conference." The Commission further declared "that it is desirable that for the future, penal sanctions should be provided for such grave outrages against the elementary principles of international law."

In 1923, the League of Nations prepared a draft of a Treaty called the TREATY OF MUTUAL ASSISTANCE. Article One of the said Treaty states, "that aggressive war is an international crime and that the parties hereto would undertake that no one of them will be guilty of its commission."⁽⁸⁾

The preamble to the League of Nations' 1924 Protocol for the Pacific Settlement of International Disputes ("Geneva Protocol") declared "that a war of aggression constitutes an international crime." Members of the League of Nations unanimously approved the said Protocol by 45 members. Article 6 of the said Protocol stated that the sanctions provided by Article 16 of the Covenant of the League should be applicable to any state resorting to war in disregard of its undertakings under the Protocol.

On September 24, 1927, the Assembly of the League of Nations adopted a declaration concerning wars of aggression which states:

The Assembly,

Recognising 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 ....⁽⁹⁾

KELLOG-BRIAND PACT OR "PACT OF PARIS"

On August 27, 1928, the Kellog-Briand Pact or "Pact of Paris" was signed in Paris by 46 states. It was signed by members of the League of Nations and Germany. The said Pact condemned recourse to war for the solution of international controversies, renounced war as an instrument of national policy and bound the nations signing the Pact to seek the settlement of all disputes only by pacific means. Although the Pact did not make the violations of its terms crimes punishable either by an international tribunal or by national courts, many international jurists meeting in the conferences of the International Law Association were of the opinion that unleashing aggressive wars is an international crime and must be punished.

DECLARATIONS OF PAN-AMERICAN CONFERENCES

The unanimous Resolution (February 18, 1928) of the twenty-one American Republics at the Sixth (Havana) Pan- American Conference declared that "war of aggression constitutes an international crime against the human species."

At the International Conference of American States on Conciliation and Arbitration, assembled in Washington in December, 1928, representatives of all twenty republics at the Conference signed a General Convention of Inter-American Conciliation, of which the preamble contains the statement, "Desiring to demonstrate that the condemnation of war as an instrument of national policy in their mutual relations," set forth in the Havana Resolution, "constitutes one of the fundamental bases of inter-American relations ...."

The Anti-War Treaty of Non-Aggression and Conciliation signed at Rio de Janeiro, October 10, 1933, was ratified by 25 States, including the United States of America. The preamble to that treaty states that the Parties were entering into the agreement "to the end of condemning wars of aggression and territorial acquisitions that may be obtained by armed conquest, making them impossible and establishing their invalidity."

THE LONDON AGREEMENT AND THE INTERNATIONAL MILITARY TRIBUNAL

On August 8, 1945, the major allied powers signed the London Agreement and adopted the Charter of the International Military Tribunal. Article One of the Agreement provided for the establishment of an International Military Tribunal "for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities." Article Six of the said Charter defined the crimes within the jurisdiction of the tribunal as follows:

(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) Warcrimes: 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 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 inhuman acts committed against any civilian population, before or during the war, or persecution on political, racial or religious grounds in execution of or in connection with any crimes within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

(d) 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.

Article 7 of the Charter of the Tribunal provides as follows:

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.

THE INDICTMENT OF THE MAJOR NAZI WAR CRIMINALS

The 24 major Nazi defendants were charged on an indictment which included four counts. Count One stated, "Our case against the major defendants is concerned with the Nazi master plan and charged all the defendants that they engaged in a gigantic common plan or conspiracy to acquire totalitarian control of Germany, to mobilize the German economy for war, to construct a huge military machine for conquest, and to overrun and subjugate Austria, Czechoslovakia, Poland, and the other victims of German arms; and, in the course of all the foregoing, to commit numerous war crimes and crimes against humanity."⁽¹⁰⁾ Count Two of the Indictment contained the charge that all the defendants committed crimes against peace "by planning, preparing, initiating, and waging wars of aggression against twelve named countries."⁽¹¹⁾ Count Three of the Indictment "accused the defendants of violating the laws and customs of war, specifying the murder and ill-treatment of millions of civilians in the German-occupied countries, deportation of other millions to slave labor, murder and ill-treatment of prisoners of war, killing of hostages, plunder and looting and unjustified devastation, forcing non-German civilians to swear allegiance to Hitler, and despotically 'Germanizing' occupied areas, particularly Alsace and Lorraine and parts of Poland."⁽¹²⁾

Count Four charged the defendants with crimes against humanity which were incorporated in Count Three, but, in addition. Count Four included accusations of acts committed in Germany, Austria and Czechoslovakia prior to the outbreak of the war and laid stress on the imprisonment and persecution of Jews and political opponents at Dachau, Buchenwald and elsewhere and on general mistreatment and persecution of Jews and other political, racial and religious groups by the Nazis.⁽¹³⁾

JUDICIAL DECISIONS REGARDING INTERNATIONAL CRIMINAL LAW

The International Military Tribunals which sat in Nuremberg and Tokyo and which tried the German and Japanese war criminals, dealt extensively with international criminal law and contained important dicta regarding war crimes, crimes against peace, and crimes against humanity as follows:

1. To initiate a war of aggression is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

2. It is contrary to military tradition to kill or injure prisoners of war.

3. The territories occupied by Germany were administered in violation of the laws of war. The evidence is overwhelming of systematic rule of violence, brutality and terror.

4. The evidence in this case has established that the territories occupied by Germany were exploited for the German war effort in the most ruthless way, without consideration of the local economy, and in consequence of a deliberate design and policy. There was in truth a systematic "plunder of public or private property," which was criminal under Article 6(b) of the Charter.

5. The ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory is a war crime.

The International Military Tribunal of Nuremberg summarized the principles of the law of the charter and the principles of international criminal law as follows:

THE COMMON PLAN OR CONSPIRACY AND AGGRESSIVE WAR

The Tribunal now turns to the consideration of the crimes against peace charged in the Indictment. Count One of the Indictment charges the defendants with conspiring or having a common plan to commit crimes against peace. Count Two of the Indictment charges the defendants with committing specific crimes against peace by planning, preparing, initiating, and waging wars of aggression against anumber of other States. It will be convenient to consider the question of the existence of a common plan and the question of aggressive war together, and to deal later in this Judgment with the question of the individual responsibility of the defendants.

The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.⁽¹⁴⁾

The Tribunal stated further on Page 42:

THE LAW AS TO THE COMMON PLAN OR CONSPIRACY

In the previous recital of the facts relating to aggressive war, it is clear that planning and preparation had been carried out in the most systematic way at every stage of the history.

Planning and preparation are essential to the making of war. In the opinion of the Tribunal aggressive war is a crime under international law. The Charter defines this offence as planning, preparation, initiation or waging of a war of aggression "or participation in a common plan or conspiracy for the accomplishment ... of the foregoing."⁽¹⁵⁾

The Tribunal further stated on Pages 44-45:

WAR CRIMES AND CRIMES AGAINST HUMANITY

The evidence relating to war crimes has been overwhelming, in its volume and its detail. It is impossible for this Judgment adequately to review it, or to record the mass of documentary and oral evidence that has been presented. The truth remains that war crimes were committed on a vast scale, never before seen in the history of war. They were perpetrated in all the countries occupied by Germany, and on the High Seas, and were attended by every conceivable circumstance of cruelty and horror. There can be no doubt that the majority of them arose from the Nazi conception of "total war," with which the aggressive wars were waged. For in this conception of "total" war, the moral ideas underlying the conventions which seek to make war more humane are no longer regarded as having force or validity. Everything is made subordinate to the overmastering dictates of war. Rules, regulations, assurances and treaties all alike are of no moment; and so, freed from the restraining influenceof international law, the aggressive war is conducted by the Nazi leaders in the most barbaric way. Accordingly, war crimes were committed when and wherever the Fuehrer and his close associates thought them to be advantageous. They were for the most part the result of cold and criminal calculation.

On some occasions, war crimes were deliberately planned long in advance. In the case of the Soviet Union, the plunder of the territories to be occupied, and the ill-treatment of the civilian population, were settled in minute detail before the attack was begun. As early as the Autumn of 1940, the invasion of the territories of the Soviet Union was being considered. From that date onwards, the methods to be employed in destroying all possible opposition were continuously under discussion.

Similarly, when planning to exploit the inhabitants of the occupied countries for slave labour on the very greatest scale, the German Government conceived it as an integral part of the war economy, and planned and organized this particular war crime down to the last elaborate detail.

Other war crimes, such as the murder of prisoners of war who had escaped and been recaptured, or the murder of Commandos or captured airmen, or the destruction of the Soviet Commissars, were the result of direct orders circulated through the highest official channels.

The Tribunal proposes, therefore, to deal quite generally with the question of war crimes, and to refer to them later when examining the responsibility of the individual defendants in relation to them. Prisoners of war were ill-treated and tortured and murdered, not only in defiance of the well-established rules of international law, but in complete disregard of the elementary dictates of humanity. Civilian populations in occupied territories suffered the same fate. Whole populations were deported to Germany for the purposes of slave labour upon defence works, armament production and similar tasks connected with the war effort. Hostages were taken in very large numbers from the civilian populations in all the occupied countries, and were shot as suited the German purposes. Public and private property was systematically plundered and pillaged in order to enlarge the resources of Germany at the expense of the rest of Europe. Cities and towns and villages were wantonly destroyed without military justification or necessity.⁽¹⁶⁾

The Tribunal also states on Page 64:

The Tribunal is of course bound by the Charter, in the definition which it gives both of war crimes and crimes against humanity. With respect to war crimes, however, as has already been pointed out, the crimes defined by Article 6, section (b), of the Charter were already recognized as war crimes under international law. They were covered by Articles 46, 50, 52, and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46, and 51 of the Geneva Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument."⁽¹⁷⁾

DICTA OF OTHER WAR CRIMES TRIBUNALS

War Crimes tribunals were set up in Germany, Japan, Belgium, France, Holland, Norway, Czechoslovakia, Poland and Yugoslavia, and tried hundreds of persons accused of war crimes.

OFFENCES AGAINST PRISONERS OF WAR

The following acts were held by these Tribunals to be war crimes against prisoners of war:

The killing of prisoners of war.

Torturing prisoners of war.

Denial of fair trials to prisoners of war.

Denial to prisoners of war of the minimum conditions conducive to life and health.

Infringement of the religious rights of prisoners of war.

DENATIONALIZATIONS

A category of war crimes recognized by the war crimes courts is that of denationalization. In the Greifelt Trial, the Military Court convicted the accused of the crime of "Forced Germanization." It is worthy of note that the Australian and Netherlands War Crimes Law provide that "attempts to denationalize the inhabitants of occupied territory is a war crime." The Chinese War Crimes law of October, 1946, includes in war crimes "scheming to deprive the inhabitants of occupied territory of their status and rights as nationals of the occupied country."

INVASION OF THE RELIGIOUS RIGHTS OF INHABITANTS OF OCCUPIED TERRITORIES

The invasion of the religious rights of inhabitants of occupied territories has been recognized as an offense under international criminal law. It was pointed out that Article 46 of the Hague Regulations of 1907 provides, "family honor and rights, individual life, and private property, as well as religious convictions and worship must be respected." In the Trial of Willy Zuehlke, the Netherlands Special Court of Cassation held, "This cou rt... is of the opinion that the refusal to allow spiritual assistance to someone under sentence of death does ... in itself definitely constitute a crime, both a war crime and a crime against humanity."

OFFENSES AGAINST PROPERTY IN THE OCCUPIED TERRITORIES

In the Flick Trial, the Farben Trial, and the Krupp Trial, the military tribunals held various offenses against private and public properties in the occupied territories to be war crimes. The following are examples:

Pillage, plunder and spoliation, confiscation and requisition of private property.

Depriving the owner from the use of his factory was held to be a war crime.

Destruction of inhabited buildings was held by the permanent tribunal at Dijon to be a war crime. In the Trial of Franz Hostein and 22 others in 1947 the accused were convicted for the war crimes of destroying 12 houses at Dus-Les- Places, 11 houses at Vermont, 7 houses at Crux-la-ville and one house at Vieux-dun.

In many trials held by the French Military Court, the accused were convicted for destruction of public monuments and the seizure, destruction and willful damage to buildings dedicated to public worship, charity or education in accordance with Articles 55 and 56 of the Hague Regulations.

The following are instances of the judgments regarding war crimes, crimes against humanity and crimes against peace which were extractedverbatim from Volume XV of the Law Reports of Trials of War Criminals selected and prepared by the United Nations War Crimes Commission:

WAR CRIMES

OFFENCES AGAINST PRISONERS OF WAR

The killing of prisoners of war without due cause is a clear violation of both customary and conventional international law. Thus, Article 23 of the Hague Convention provides that:

"In addition to the prohibitions provided by special Conventions, it is particularly forbidden -

"(c) To kill or wound an enemy who, having laid down his arms, or no longer having means of defence, has surrendered at discretion."

A great many war crimes trials have involved convictions on charges alleging responsibility for such killings.⁽¹⁸⁾

A number of war crimes trials have involved the physical ill treatment of prisoners of war:

The Judgment in the High Command Trial also regarded as declaratory of customary law that part of Article 3 of the Geneva Convention which provides: "Prisoners of war are entitled to respect for their persons and honour. Women shall be treated with all consideration due to their sex"; that part of Article 46 which states: "All forms of corporal punishment, confinement in premises not lighted by daylight and, in general, all forms of cruelty whatsoever, are prohibited", and also the following passage from Article 56: "In no case shall prisoners of war be transferred to penitentiary establishments (prisons, penitentiaries, convict establishments, etc.) in order to undergo disciplinary sentence there."

In other trials the allegations made concerned the denial to prisoners of war of the minimum conditions conducive to life and health whose provision is made compulsory by the Geneva Convention.⁽¹⁹⁾

In the trial of Tanaka Chuichi and two others by an Australian Military Court, the accused was found guilty of ill-treatment of prisoners of war. Prominent among the prisoners' hair and beards and forced a prisoner to smoke. Since the prisoners were Sikhs, such acts were a violation of their religious feelings. In this trial therefore, an infringement of the religious rights of prisoners of war was apparently punished but since the Court did not deliver a reasoned judgment it cannot be stated definitively that such infringements of the religious rights of prisoners of war were regarded as separate punishable war crimes.⁽²⁰⁾

OFFENCES AGAINST INHABITANTS OF OCCUPIED TERRITORIES

The protection afforded by international law to inhabitants of occupied territories derives largely from the Regulations attached to the Hague Convention No. IV of 1907 and from the rules of customary law of which these Regulations are a codification. The relevant Articles of the Hague Regulations are Articles 42-56, which fall under the heading: Section II1 -Military Authority over the Territory of the Hostile State. Of these, Article 50 is quoted on page 179 and Articles 43 and 46 provide as follows:

Article 43: "The authority of the power of the State having passed de facto into the hands of the occupant, the latter shall do all in his power to restore, and ensure, as far as possible, public order and safety, respecting at the same time, unless absolutely prevented, the laws in force in the country."

Article 46: "Family honour and rights, individual life, and private property, as well as religious convictions and worship, must be respected. Private property may not be confiscated." The unwarranted killing of inhabitants of occupied territories is a war crime and has often been made the subject of war crimes proceedings.(21)

The ill-treatment of inhabitants of occupied territories is also a recognized war crime, and there have been many trials in which this offence has been charged.

A special type of ill-treatment which has received attention in Volume VII of these Reports, and which has been the fate of many concentration camp inmates, is subjection to illegal experiments. It may safely be said that subjection to experiments isprima facieill-treatment and requires justification." (22)

DEPORTATION OF THE INHABITANTS OF OCCUPIED TERRITORY

A further recognized war crime is the deportation of inhabitants of occupied territories. Judge Phillips, in his concurring opinion in the Milch Trial, made some interesting remarks on deportation of civilians as a war crime or crime against humanity, and based his views upon, interalia, Article 52 of the Hague Regulations and Article II(1) of Control Council Law No. 10. He pointed out that: "International Law has enunciated certain conditions under which the fact of deportation of civilians from one nation to another during times of war becomes a crime."

These conditions he enunciated as follows: "If the transfer is carried out without a legal title, as in the case where people are deported from a country occupied by an invader while the occupied enemy still has an army in the field and is still resisting, thedeportation is contrary to international law."The rationale of this rule lies in the supposition that the occupying power has temporarily prevented the rightful sovereign from exercising its power over its citizens. Articles 43,46,49,52, 55 and 56, Hague Regulations, which limit the rights of the belligerent occupant, do not expressly specify as a crime the deportation of civilians from an occupied territory.(23)

The judgment of the Tribunal stated further:

Article II (1) of Control Council Law No. 10 specifies certain crimes against humanity. Among those is listed the deportation of any civilian population. The general language of this subsection as applied to deportation indicates that Control Council Law No. 10 has unconditionally contended as a crime against humanity every instance of the deportation of civilians. Article II (1) (c) states that the enslavement of any civilian population is acrimeagainsthumanity. Thus Law No. 10 treats as separate crimes and different types of crime "deportation of slave labour" and "enslavement." The Tribunal holds that the deportation, the transportation, the retention, the unlawful use and the inhumane treatment of civilian populations by an occupying Power are crimes against humanity.

This statement was adopted by the Military Tribunal which conducted the Krupp Trial.(24)

ILLEGAL DETENTION OF CIVILIANS IS A WAR CRIME

Under the Australian and Chinese war crime laws, to mention two that refer to wrongful internment of civilians specifically, it is internment "under inhuman conditions" that is described as a war crime. While false imprisonment alone seems to have been comparatively rarely charged, there seems to be no reason for not regarding it as illegal under some conditions merely to imprison civilians from occupied territories. The opinion of the Tribunal which conducted the Justice Trial declared the taking away of "Nacht und Nebel" prisoners to be illegal, but as the Tribunal pointed out, the "Nacht und Nebel" scheme involved deportation, internment under inhuman conditions, torture and starvation, in addition to the inhumane treatment of friends and relatives.

A Netherlands provision declaring criminal "indiscriminate mass arrest," was enforced in the trial of Shigeki Motomuraand others at Macassar while the following French provision, Article 341 of the Code Penal, was enforced in several French trials, including the Wagner Trial:

"Those who, without order of the proper authorities and excepting cases in which the law prescribes the seizure of accused persons, arrest, detain or restrain any persons, shall be punished with a term of hard labour." Illegal detention, as such, was punished by Netherlands courts in the Rauter and Zuehlke Trials.25

THE CRIME OF GENOCIDE IN POST-WORLD WAR II TRIBUNALS

The crime of genocide has received a detailed treatment in the notes to the Greifelt Trial, held before a United States Military Tribunal, and to the Goeth and Hoess Trials, held before the Polish Supreme National Tribunal.

The Judgment of the Tribunals which conducted these trials did not in fact use the term "genocide" (the United States and Polish Prosecutions, however, did so) but the term has received judicial recognition from the Tribunal which conducted the Justice Trial, in whose judgment it is used to signify a type of crime against humanity which may be committed either by enemy nationals against enemy nationals or by enemy nationals against Allied nationals. The Tribunal quoted with approval a resolution of the United Nations General Assembly which defined genocide as "a denial of the right of existence of entire human groups as homicide is a denial of the right to live of individual human beings." In its judgment in the Greiser Trial, the Supreme National Tribunal of Poland stated in a summary way that certain groups of crimes had been committed against the Polish population, including the following of which the words italicized are of particular significance in this connection.

(a) Illegal creation of an exceptional legal status for the Poles in respect of their rights of property, employment, education, use of their national language, and in respect of the special penal code enforced against them;

(b) Repression, genocidal in character, of the religion of the local population by mass murder and incarceration in concentration camps of Polish priests, including bishops; by restriction of religious practices to the minimum; and by destruction of churches, cemeteries, and the property of the Church

(c) Equally Genocidal attacks on Polish culture and learning;

(f) Debasement of the dignity of the nation (degradation of the Poles to citizens of a lower class, Schutzbefohlene, in accordance with the distinction drawn between German "masters" and Polish "servants");

"The accused," said the Tribunal, "ordered, countenanced and facilitated, as is shown by the evidence, criminal attempts on the life, health and property of thousands of Polish inhabitants of the 'occupied' part of Poland in question, and at the same time was concerned in bringing about in that territory the general totalitarian genocidal attack on the rights of the small and medium nations to exist, and to have an identity and culture of their own."

A category of war crime which is older established, in the matter of recognition as such, than genocide, although apparently narrower in scope, is that of denationalization, and here some of the findings of the Tribunal in the Greifelt Trial are of interest. Apart from finding various accused guilty of crimes such as forced evacuation, plunder of property and enslavement, which are dealt with as war crimes elsewhere in this volume, and of such offences as kidnapping and forced abortion which as unjustifiable invasions of personal integrity were clearly war crimes, the Tribunal found certain of the accused guilty of a separate crime of "forcedGermanization." The substance of what the Tribunal regarded as constituting this offence may be judged from a study of a summary of the relevant evidence which was derived from the judgment of the Tribunal.

It may be added that under the Australian and Netherlands war crimes Law the expression "war crime" includes "attempts to denationalize the inhabitants of occupied territory," and that Article 111 of the Chinese war crimes Law of 24th October, 1946, includes within the definition of "war crime", "scheming to enslave the inhabitants of occupied territory or to deprive them of their status and rights as nationals of the , occupied country ." In a sense the entire paragraph 3 of Article II of the Chinese law is relevant here:

"Article 11. A person who commits an offence which falls under any one of the following categories shall be considered a war criminal ...."(26)

VIOLATION OF RELIGIOUS RIGHTS

Some recognition has been given to invasion of the religious rights of inhabitants of occupied territories as an offence under international criminal law. In the trial of Willy Zuehlke, the Netherlands Special Court of Cassation held that "This Cou rt... is of the opinion that the refusal to allow spiritual assistance to someone under sentence of death does ... in itself definitely constitute a crime, both a war crime and a crime against humanity."(27)

OFFENCES AGAINST PROPERTY

On offences against property in occupied territories the principal judicial authorities are those treated in Volumes IX and X of these Reports, which include the Flick, I.G. Farben and Krupp Trials. The main conclusions derived from a study of the reports contained in these two volumes are briefly the following:

(a) In the numerous attempts which have been made at defining the precise limits of the war crime of pillage, plunder or spoliation, stress has been placed on one or both of the following two possible aspects of the offence:

(i) that private property rights were infringed;

(ii) that the ultimate outcome of the alleged offences was that the economy of the occupied territory was injured and/or that of the occupying State benefited.

"In so far as private property is concerned it seems sounder to base a definition of a war crime involved upon the first aspect, namely the infringement of the property rights of individual inhabitants of the occupied territory. The gist of the matter appears in the words which occur in the Krupp Judgment:

"Article 46 (of the Hague Regulations) stipulates that 'private property ... must be respected.' However, if for example, a factory is being taken over in a manner which prevents the rightful owner from using it and depriving him from lawfully exercising his prerogative as owner, it cannot be said that his property 'is respected' under Article 46 as it must be."

It would appear that, at least in the view of the Tribunals which conducted the Flick Trial, and the I.G. Farben Trial, that a sufficient infringement of private property rights has been proved to bring the offence within the terms of the Hague Regulation. The Tribunal added that the provisions of the Hague Convention regarding private property "relate to plunder, confiscation, and requisition which, in turn, imply action in relation to property committed against the will and without the consent of the owner. We look in vain for any provision in the Hague Regulations which would justify the broad assertion that private citizens of the nation of the military occupant may not enter into agreements respecting property in occupied territories when consent of the owner, is, in fact, freely given."

In the Krupp Trial Judgment, it may be thought that rather more stress was placed on the second possible approach to war crimes committed against property rights. Here it was stated that "just as the inhabitants of the occupied territory must not be forced to help the enemy in waging the war against their own country or their own country's allies, so must the economic assets of the occupied territory not be used in such a manner." The Tribunal added later:

"Spoliation of private property, then, is forbidden under two aspects; firstly, the individual private owner of property must not be deprived of it; secondly, the economic substance of the belligerently occupied territory must not be taken over by the occupant or put to the service of his war effort - always with the proviso that there are exemptions from this rule which are strictly limited to the needs of the army of occupation in so far as such needs do not exceed the economic strength of the occupied territory."(28)

The Krupp Trial Judgment, moreover, laid down that the laws and usages of war do not authorize "the taking away by a military occupant of live stock for the maintenance of his own industries at home or for the support of the civil population of his country"; moreover the requisitions and services contemplated by Article 52 "must refer to the needs of the Army of Occupation," whereas "it has never been contended that the Krupp firm belonged to the Army of Occupation.''

The rules of international law regarding illegal requisitioning of private property, which were crystallized in Article 52 of the Hague Regulations, were applied by a French Military Tribunal in the Trial of Philippe Rust; the accused was found guilty of having requisitioned vehicles (and men) without paying or delivering receipts in lieu of immediate payment.

Property offences recognized by modem international law are not, however, limited to offences against physical tangible possessions or to open robbery in the old sense of pillage, but include the acquisition of intangible property and the securing of ownership, use or control of all kinds of property by many ways other than by open violence.

It has been said that proof that consent was "obtained by threats, intimidation, pressure or by exploiting the position and power of the military occupant under circumstances indicating that the owner is being induced to part with his property against his will" would make a transfer illegal under international law. The possible means of coercion were further elaborated in the I.G. Farben Judgment when it was said that in the many instances "in which Farben dealt directly with the private owners, there was the ever present threat of forceful seizure of the property by the Reich or other similar measures, such, for example, as withholding licences, raw materials, the threat of uncertain drastic treatment in peacetreaty negotiations or other effective means of bending the will of the owners. The power of the military occupant was the ever present threat in these transactions, and was clearly an important, if not a decisive factor."

If property has been acquired without the consent of the owner, the proof of having paid consideration is no defence.

Neither will the fact that the reality of a transaction was hidden behind a pseudo legal facade afford a defence.

One French trial reported in Volume VIII and two in Volume IX dealt with wanton destruction of inhabited buildings and the theft of personal property, offences which are war crimes of the more traditional type.

If wrongful interference with property rights has been shown, it is not necessary to prove that the alleged wrongdoer was involved in the original wrongful appropriation.

In dealing with public property, the United States Military Tribunals have relied upon Article 55 of the Hague Regulations according to which the occupying power has only a right of usufruct over such property, and that only for the duration of the occupation. <

Other offences. An examination of the French, Australian, Polish, Netherlands and Chinese Laws on war crimes will reveal that they not only provide against a number of offences whose punishment has been illustrated by trials reported in these volumes, but also define certain crimes which have not been charged before the courts in trials so reported, including some not mentioned elsewhere in this present volume. It has not been thought necessary to quote here all of the provisions relating to offences of the latter type, since the texts may be examined in full in the earlier volumes, but it may be added that they include usurpation of sovereignty during military occupation, which is declared a crime by the Australian, Netherlands, and Chinese laws.(29)

CRIMES AGAINST HUMANITY

The commission of crimes against humanity has been charged in a number of trials reported upon in these volumes and in this sphere the United States Military Tribunals have applied Article 11, paragraph 1, of Control Council Law No. 10 which provides that:

"Each of the following acts is recognized as a crime:

(c) Crimes against Humanity: Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds, whether or not in violation of the domestic laws of the country where perpetrated."

Of the trials referred to above the most important from the point of view of the definition of the scope of the concept of crimes against humanity have been the Justice Trial and the Flick Trial. The law laid down in these trials and in some others reported upon may be summarized as follows:

(i) In the first place it is clear that war crimes may also constitute crimes against humanity; the same offences may amount to both types of crime. If war crimes are shown to have been committed in a widespread, systematic manner, on political, racial or religious grounds, they may amount also to crimes against humanity.

(ii) On the other hand, not all types of acts which could constitute war crimes could also constitute crimes against humanity, and the dividing line between the acts which could constitute both and acts which, in their nature, could only be war crimes is not always easy to draw, in the absence of relevant judicial pronouncements covering certain types of offences. That crimes against humanity are not limited to offenses against inhabitants of occupied territories is shown by a pronouncement made in the Judgment delivered in the High Command Trial, that the plan of the German Govemment "to inspire the German population to murder Allied fliers by lynch law or mob justice" was a crime against humanity.

The Judgment in the FlickTrial declared that "adistinction could be made between industrial property and the dwellings, household furnishings, and food supplies of a persecuted people," and thus left open the question whether such offences against personal property as would amount to an assault upon the health and life of a human being (such as the burning of his house or depriving him of his food supply or his paid employment) would not constitute a crime against humanity. Certain passages from the Judgment of the Nuremberg International Military Tribunal treating certain offences against property as crimes against humanity could refer to acts of economic deprivation of this more personal type.(30)

CRIMES AGAINST PEACE

The following paragraphs attempt to analyse the law relating to crimes against peace (including in the meaning of that term "planning, preparation, initiation or waging a war of aggression" and "participating in a common plan or conspiracy for the accomplishment of any of the foregoing," to use the language of Article II 1 (a) of Law No. 10 as that law has been developed in the trials by United States military Tribunals in Nuremberg which were bound by Law No. 10. The Polish and Chinese decisions are next referred to, and finally some remarks regarding the legal effects of the fact that a crime against peace has been committed are set out.

Deeming it necessary "to give a brief consideration to the nature and characteristics of war," the Tribunal which conducted the High Command Trial said:

"We need not attempt a definition that is all inclusive and all exclusive. It is sufficient to say that war is the exerting of violence by one state or politically organized body against another. In other words, it is the implementation of apolitical policy by means of violence. Wars are contests by force between political units but the policy that brings about their initiation is made and the actual waging of them is done by individuals. What we have said thus far is equally as applicable to a just as to an unjust war, to the initiation of an aggressive and, therefore, criminal war as to the waging of defensive and, therefore, legitimate war against criminal aggression. The point we stress is that war activity is the implementation of a predetermined national policy.

"Likewise, an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or a sense of the futility of resistance in the face of superior force, adopts a policy of non-resistance and thus prevents the occurrence of any actual combat ....

"The initiation of war or an invasion is a unilateral operation. When war is formally declared or the first shot is fired the initiation of the war has ended and from then on there is a waging of war between the two adversaries."

The characteristics of illegal warfare are left rather undefined:

"Whether a war be lawful or aggressive and therefore unlawful under international law, is and can be determined only from a consideration of the factors that entered into its initiation. In the intent and purpose for which it is planned, prepared, initiated and waged is to be found its lawfulness or unlawfulness ...

"By the Kellogg-Briand Pact the sixth-three signatory nations including Germany, renounced war as an instrument of National Policy. If this, as we believe it is, is evidence of a sufficient crystallization of world opinion to authorize a judicial finding that there exist Crimes against Peace under International Common Law, we cannot find that law to extend further than such evidence indicates. The nations that entered into the Kellogg-Briand Pact considered it imperative that existing international relationships should not be changed by force. In the preamble they state that they are:

"'...persuaded that the time has come when ... all changes in their relationships with one another should be sought only by pacific means.'

"' This is a declaration that from that time forward each of the signatory nations should be deemed to possess and to have the right to exercise all the privileges and powers of a sovereign nation within the limitations of International Law, free from all interference by force on the part of any other nation. As a corollary to this, the changing or attempting to change the international relationships by force of arms is an act of aggression and if the aggression results in war, the war is an aggressive war. It is, therefore, aggressive war that is renounced by the pact. It is aggressive war that is criminal under International Law.

"The crime denounced by the law is the use of war as an instrument of national policy."

Elsewhere the Tribunal acting in the High Command Trial quoted the section of the Judgment of the Nuremberg International Military Tribunal which is headed "Violations of International Treaties". Here the latter court, having pointed out that "The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties," refers to violations by Germany of the most important of these treaties that were in fact broken by that State.

The Judgment of the Tokyo International Military Tribunal recognizes five separate crimes as crimes against peace:

"Under the heading of 'Crimes against Peace' the Charter names five separate crimes. These are planning, preparation, initiation and waging aggressive war or a war in violation of international law, treaties, agreements, or assurances; to these four is added the further crime of participation in a common plan or conspiracy for the accomplishment of any of the foregoing. The indictment was based upon the Charter and all the above crimes were charged in addition to further charges founded upon other provisions of the Charter."(31)

The Tribune added, however:

"A conspiracy to wage aggressive or unlawful war arises when two or more persons enter into an agreement to commit that crime. Thereafter, in furtherance of the conspiracy, follows planning and preparing for such war. Those who participate at this stage may be either original conspirators or later adherents. If the latter adopts the purpose of the conspiracy and plan and prepare for its fulfilment, they become conspirators."

The requisite knowledge must be of plans for specific invasions or wars of aggression:

The International Military Tribunal required proof that each defendant had actual knowledge of the plans for at least one of the invasions or wars of aggression, in order to find him guilty."

Judge Anderson emphasized that:

"The requisite knowledge, I think, can be shown either by direct or circumstantial evidence but in any case it must be knowledge of facts and circumstances which would enable the particular individual to determine not only that there was a concrete plan to initiate and wage war, but that the contemplated conflict would be a war of aggression and hence criminal. Such knowledge being shown, it must be further established that the accused participated in the plan with the felonious intent to aid in the accomplishment of the criminal objective. In the individual crime of aggressive war or conspiracy to that end as contradistinguished to the international delinquency of a state in resorting to hostilities, the individual intention is of major importance."

Judge Wilkins also stressed that the requisite knowledge must include knowledge that the envisaged warfare would be criminal in character:

To establish the requisite criminal intent, it seems necessary to show knowledge that the military power would be used in a manner which, in the words of Kellogg Pact, includes war as an 'instrument of policy.'"(32)

THE CRIME OF GENOCIDE

On the 11th day of December, 1946, the United Nations General Assembly in its first session adopted resolution 96 (I), in which it declared that genocide is a crime under international law. The said resolution states:

Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.

Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.

The punishment of the crime of genocide is a matter of international concern.

The General Assembly, therefore,

Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices - whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds - are punishable;

Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime;

Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end,

Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

Pursuant to the above resolution, a United Nations Ad Hoc Committee on Genocide was established by the Economic and Social Council (ECOSOC Res. 117(VI)). The Ad Hoc Committee, in turn, was entrusted with the preparation of a draft convention on the Crime of Genocide, and such a draft was prepared by it in 1948.

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