Crimes against humanity - an ex post facto law?

[David Thompson]

In the thread "Dresden Photos" at:

http://www.thirdreichforum.com/viewtopi ... &start=105

Scott Smith said: "Well, there was still a double-standard because the Allies waged a campaign of terror warfare to kill the German people, in this case by Bomber Command with help from the 8th Air Force; whereas, for the Germans this was part of the litany of Crimes Against Humanity in the accusations made against them, a fancy way of saying ex post facto law."

Scott, I think, is suggesting here that crimes against humanity are an ex post facto law applied by the allies to German war crimes defendants.

Ex post facto laws have been feared and rejected by Anglo-Saxon common law for at least 250 years. Most people have heard the term, but aren't quite sure what it means. Here's what one learned authority had to say about ex post facto laws:

"If any thing yet more formidable, or more odious than a bill of attainder can be found in the catalogue of state-enginery, it is what the constitution prohibits in the same clause, by the name of ex post facto laws: whereby an action indifferent in itself, and not prohibited by any law at the time it is committed, is declared by the legislature to, have been a crime, and punishment in consequence thereof, is inflicted on the person committing it." -- Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia (1803), vol. I, Section 239

Ex post facto laws are prohibited by Article I, Sections 9 and 10, of the Constitution of the United States.

Note that, according to Blackstone, a combination of three elements are required for there to be an ex post facto law:

(1) there must be "an action indifferent in itself;" and

(2) the action is "not prohibited by any law at the time it is committed;" and thereafter, that act must be

(3) "declared by the legislature to, have been a crime, and punishment in consequence thereof, is inflicted on the person committing it."

Here's how the allies defined "crimes against humanity" in Control Council Law No. 10, applied by the International Military Tribunal (IMT):

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

The text of Control Council Law No. 10 can be found on-line at:

http://www.yale.edu/lawweb/avalon/imt/imt10.htm

Let's analyze this question by comparing the three requirements for an ex post facto law with the "crimes against humanity" section of Control Council Law No. 10. For purposes of discussion, let's take element (3) as a given. What about the other two elements needed for "crimes against humanity" to be labeled an "ex post facto" law?

(1) there must be "an action indifferent in itself."

This means that the retroactively prohibited act must be a neutral one which does no harm. None of the offenses listed in the "crimes against humanity" section of Control Council Law No. 10 can be termed "an action indifferent in itself." There is nothing "indifferent" about the acts of "murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds."

(2) the action is "not prohibited by any law at the time it is committed."

Murder, extermination, enslavement, imprisonment, torture, and rape are definitely crimes, the meaning of which was well-established and equally well-understood before 1939. Those acts were clearly prohibited by a number of laws. It is doubtful that at the time Nazi Germany occupied countries it had conquered, that any of those occupied countries had laws authorizing deportation or other inhumane acts committed against any civilian population. With the possible exception of the German occupation of Hungary in 1944, it is equally doubtful that the occupied countries had laws authorizing persecutions on political, racial or religious grounds, either.

Almost all, if not all of the acts listed in the "crimes against humanity" section of Control Council Law No. 10 were crimes at the time they were committed. The "crimes against humanity" count is just a method for prosecuting the commission of those individual crimes on a grand scale, instead of having to prosecute each act separately.

On the basis of this comparison I suggest that the "crimes against humanity" section of Control Council Law No. 10 is not an ex post facto law and would not have been reasonably considered as such at any time over the last 200 years.

Interestingly enough, I didn't find any indication that the defendants at the International Military Tribunal trial of major Nazi war criminals at Nuernberg challenged the "crimes against humanity" section of Control Council Law No. 10 as an illegal ex post facto law. They did make that challenge to the "crimes against peace" provision, however. The IMT rejected this argument after a lengthy discussion, part of which is given here:

"MR. FRANCIS BIDDLE (Member of the Tribunal for the United States):

"It was urged on behalf of the defendants that a fundamental principle of all law -- international and domestic -- is that there can

461 30 Sept. 46

be no punishment of crime without a pre-existing law. "Nullum crimen sine lege, nulla poena sine lege." It was submitted, that ex post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time that the alleged criminal acts were committed, that no statute had, defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders.

In the first place, it is to be observed that the maxim nullum 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. On this view of the case alone, it would appear that the maxim has no application to the present facts."

The full statement of the IMT in rejecting the ex post facto argument can be found on-line at The Avalon Project: Nuremberg Trial Proceedings Vol. 22, pp. 458-66 at:

http://www.yale.edu/lawweb/avalon/imt/proc/09-30-46.htm

or in the first post of the thread "Ex post facto law and the Nuremberg trials" at:

http://www.thirdreichforum.com/viewtopic.php?t=15033

[David Thompson]

The posts on the question of double standards supposedly used by the allies in war crimes trials now has a thread of its own, at:

http://www.thirdreichforum.com/viewtopic.php?t=28026

[Lucius Felix Silla]

Dear Mr. David Thompson,

I think You missed the point.
You confuse Internal, Home Laws (i.e. laws applied by countries from respective Criminal codex) with International Laws . If the first provided a specified regulation for murders, rapes and others crimes, International Law before the start of IMT don't have anyone specified charge or punishment for these crimes but only vague statements; Hague and Geneva Conventions provided a general list of what was permitted and what was prohibited in war.
But, to my knownledge, nobody International law specify that this or this other fact can be considered a war crime and - ABOVE ALL - that for this crime of war is provided a punishment to a specified number of years of prison (or death sentence).
More, if the category of crimes of war have some antecedents, the category of the crimes against the humanity simply don't exist before the creation of Nuremberg Courts.
So the latin expression nullum crimen sine lege, nulla poena sine lege can be applied to IMT and NMT courts, also if Mr. Francis Biddle can have a different opinion (but he is a victor, true?).
Best regards,
LFS

[David Thompson]

Lucius Felix Silla -- The point (which I made, not missed) is that a charge of crimes against humanity is not an ex post facto law. You are confusing the Anglo-Saxon concept of an ex post facto law with the much earlier Roman law maxim "nullum crimen sine lege, nulla poena sine lege" (no crime without a law [prohibiting the act], no punishment without a law).

The international treaties signed at the Hague and Geneva set forth prohibited practices. In addition, the domestic criminal laws of the European countries prohibited "murder, extermination, enslavement, deportation, [false] imprisonment, torture, rape and similar acts consituting "crimes against humanity." It cannot be said, therefore, that the first part of the latin maxim "nullum crimen sine lege" (no crime without a law [prohibiting the act]) applies.

Those treaties did not prescribe specific penalties for persons and countries who violated those conventions, but this fact hardly nullifies the agreements, or their prohibitions. The countries which ratified the treaties were well aware that the conventions did not specify punishments, yet ratified them anyway. The fact that the treaties contain prohibitions recognizes an attendent power to punish violators by the ancient custom and usage of reprisal.

Furthermore, the domestic criminal laws of the European countries which prohibited "murder, extermination, enslavement, deportation, [false] imprisonment, torture, rape and similar acts consituting "crimes against humanity" did set forth penalties for those who committed those acts. The countries offended by crimes against humanity had the right to respond by reprisal, or impose individual sanctions against the defendants personally. For these reasons, the second part of the latin maxim "nulla poena sine lege" (no punishment without a law) doesn't apply to these crimes either.

The defendants were subject to personal punishment by the domestic criminal laws of the European countries, and to national, collective and retributive punishment through the ancient custom and usage of reprisal. As I pointed out in my initial post, the "crimes against humanity" count is just a method for prosecuting the commission of those individual crimes on a grand scale, instead of having to prosecute each act separately. For this reason, I believe your statement that "the category of the crimes against the humanity simply don't exist before the creation of Nuremberg Courts" is incorrect.

[Lucius Felix Silla]

Dear Mr. David Thompson,

1) You write
"The point (which I made, not missed) is that a charge of crimes against humanity is not an ex post facto law. You are confusing the Anglo-Saxon concept of an ex post facto law with the much earlier Roman law maxim "nullum crimen sine lege, nulla poena sine lege" (no crime without a law [prohibiting the act], no punishment without a law)."

I must again stress that the two concepts are the same. Is simply without any legal and historical basis say that exist one Anglo-Saxon (sic!) concept "ex post facto law" and an earlier Roman law maxim "nullum crime sine lege, nulla poena sine lege" as if the two concepts were different.
They signify the same: is absolutely illegal to try anyone for a crime if the law at tempus commissi delicti (i.e. when crime is committed) don't exist.

2) You stress that:
"The international treaties signed at the Hague and Geneva set forth prohibited practices. In addition, the domestic criminal laws of the European countries prohibited "murder, extermination, enslavement, deportation, [false] imprisonment, torture, rape and similar acts consituting "crimes against humanity." It cannot be said, therefore, that the first part of the latin maxim "nullum crimen sine lege" (no crime without a law [prohibiting the act]) applies. "

You confuse, again, two distinct concepts: International Laws (or International Conventions) with Domestic Laws. Precisely for this reason the IMT trials were a masquerade. If the germans can be tried by others individuals nations according to respective domestic laws, they can't be tried before an International Court, because don't exist an International Law which have regulated these crimes. Therefore, under stricte rule of law, only to individuals nations is permitted, before 1946 and also later, tried - eventually - the Germans. And if is true, the double standard claimed by Scott Smith is entirely acceptable: also german criminal codex provided a long list of crimes committed by the Allies in WWII on german territory.

3) You wrote that:
"Those treaties did not prescribe specific penalties for persons and countries who violated those conventions, but this fact hardly nullifies the agreements, or their prohibitions. The countries which ratified the treaties were well aware that the conventions did not specify punishments, yet ratified them anyway. The fact that the treaties contain prohibitions recognizes an attendent power to punish violators by the ancient custom and usage of reprisal."

Firstly, i see You that confuse two different matters, when You affirms that "this fact [the lack of specific penalties] hardly nullifies the agreements or their prohibitions". Surely this lack don't nullify an agreement, but this lack
must prevent one from enforcing this agreement. If one criminal article lack of the specific penalty, one can't be jailed for this article.
Second problem. An ancient custom and usage isn't and wasn't, fortunately, a law. Only barbaric system can have these principles, but definitely not "democratic" or "civilized" nations. In every legal sistem, also in the anglo-saxon, the fact that one act without respect of law, don't signify that also you can react with the same force of the offence, or with greater force if not in specific situations (as in war). But these special situations weren't present at the end of WWII- One nation, the Germany, was on his knee, simply. Germany was definitely defeated, simply.

4) You wrote:

"The defendants were subject to personal punishment by the domestic criminal laws of the European countries, and to national, collective and retributive punishment through the ancient custom and usage of reprisal. As I pointed out in my initial post, the "crimes against humanity" count is just a method for prosecuting the commission of those individual crimes on a grand scale, instead of having to prosecute each act separately. For this reason, I believe your statement that "the category of the crimes against the humanity simply don't exist before the creation of Nuremberg Courts" is incorrect."

Only the first part of this statement ("The defendants were subject to personal punishment by the domestic criminal laws of the European countries") is, to my judgement, correct and i can agree.
In reality the category of the crimes against the humanity, i repeat, is an artificial creation ex post facto by the Victors.
I'm not sure, but i suspect that also the domestic laws of much countries before 1946 don't have any regulation for the category of the crimes
against humanity.

In reality the International Military Tribunal of Nuremberg, was nor International, nor Military, neither a Tribunal.
Not International, because prosecutors and judges were of the same nations: the "Allied" nations. Not Military because the law procedure wasn't military and much judges weren't military judges. Not a Tribunal because every species of proofs were admitted (see the infamous art. 19 and 21 of the Chart) whereas physical and moral torture, every violations of basic rights of the defendants were applied. But one, what can expect if between the judges and the prosecutors, were presents the Soviets judges and prosecutors, specialized in the mid-30's infamous trials of Moscow against the presumed "bourgeois" "counterevolutionaries" "enemies of people" "revisonists" and "fascists"?
Finally, also the right to appeal was denied to defendants. The Nuremberg postwar trials were and are a sad history for every really democratic coscience.
IMT?=Infamous Masquerades Trials....

Best regards,
LFS

[Scott Smith]

As I pointed out in my initial post, the "crimes against humanity" count is just a method for prosecuting the commission of those individual crimes on a grand scale, instead of having to prosecute each act separately. For this reason, I believe your statement that "the category of the crimes against the humanity simply don't exist before the creation of Nuremberg Courts" is incorrect.

That sounds like political crime to me. Or maybe witchcraft. Without specific crimes how do you ajudicate badness?

The Nuremberg postwar trials were and are a sad history for every really democratic conscience.
IMT?=Infamous Masquerades Trials....

Amen.

[chalutzim]

The Nuremberg postwar trials were and are a sad history for every really democratic conscience.
IMT?=Infamous Masquerades Trials....

Amen.

Sieg Heil! :roll:

[David Thompson]

Lucius Felix Silla -- Well, we disagree on most points of this topic. Having made my argument, I will leave it to the readers to make up their own minds about who is confused, and whether the IMT proceedings "were and are a sad history for every really democratic coscience."

[David Thompson]

Scott -- You said, of crimes against humanity: "That sounds like political crime to me. Or maybe witchcraft. Without specific crimes how do you ajudicate badness?"

(1) What about "murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds" isn't specific?

If you're thinking "other inhumane acts," please give me an example involving a specific war crimes trial.

(2) What is political about punishing "murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds"?

(3) How many witchcraft trials do you know of in which the defendants were acquitted?

For the interested reader, reports of actual witchcraft trials can be seen on-line at:

The Salem Witchcraft Trials
http://etext.lib.virginia.edu/salem/witchcraft/
http://www.law.umkc.edu/faculty/project ... /SALEM.HTM

Witchcraft Trials in New York
http://www.rootsweb.com/~nysuffol/history6.html

Trial of the Bideford Witches
http://www.eclipse.co.uk/exeshul/bidefordwitches/

Witch Persecution at Bamberg
http://history.hanover.edu/texts/bamberg.html

Witch Persecution at Bonn
http://history.hanover.edu/texts/bonn.html

Witch Persecution at Trier
http://history.hanover.edu/texts/trier.html

Witch Persecution at Wuerzburg
http://history.hanover.edu/texts/wurz.html

Malleus Maleficarum
http://www.malleusmaleficarum.org/

Reports of allied war crimes trials are available at:

The International Military Tribunal Proceedings
http://www.yale.edu/lawweb/avalon/imt/imt.htm#proc

[American] Trials of War Criminals at Nuernberg under Control Council Law 10
http://www.mazal.org/

Various trials from the Web Genocide Documentation Centre
http://www.ess.uwe.ac.uk/genocide/trials.htm

The reader is invited to compare and contrast the proceedings, and determine for himself whether a comparison of withcraft trials with war crimes trials is apt or ludicrous.

[Scott Smith]

Scott -- You said, of crimes against humanity: "That sounds like political crime to me. Or maybe witchcraft. Without specific crimes how do you ajudicate badness?"

(1) What about "murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds" isn't specific?

War is murder and it is legal because it is made by sovereign nations against other sovereigns. If it is a specific murder charge then that would not be a "crime against humanity" but a crime where competent jurisdiction would be found, unless it were in fact political and related to other factors and circumstances. Extermination is just another fancy way of saying massive killing, which is common in wartime. Germans were exterminated by Bomber Command because they were Germans. Was this illegal? No. Deportation was used by both sides during and after the war; only the Germans are bad, however. Imprisonment was used by both sides. FDR had no rational cause to imprison Japanese-American citizens for their race or ancestry. It might have been ruled unconstitutional if it had not resonated so well with ordinary Americans after Pearl Harbor. Enslavement was a wartime expedient and Germany had no other choice if she fought the war to win it. Anglo-Saxons have been on top for so long that we can't understand the desperation, anger, and hatreds of others. Personally, I would be angry if my government did not impress foreigners and enemy aliens if the alternative was Unconditional Surrender. It is not a moral question but one of increasingly desperate measures. Americans in particular have come to believe our own propaganda to the point that anything we do is moral. Racial or religious persecution was not illegal and we Americans have done our share of this; we have no cause for standing in judgment considering that Blacks were second-class citizens at the time. And any justice that involved the Soviets makes a mockery out of established Anglo-Saxon legal principles. Other "inhuman acts" may be inhuman but were not against any laws existing, either in Germany or any other jurisdiction. The Allies did not have jurisdiction just because they signed a treaty amongst themselves in London upon winning the war and calling it justice.

If you're thinking "other inhumane acts," please give me an example involving a specific war crimes trial.

I'm not sure I entirely understand the question but involuntary medical experimentation I would consider inhumane. The United States government has experimented on soldiers, prisoners and Negroes, so who are they to be holding trials against the Germans?

(2) What is political about punishing "murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds"?

Who defines the terms, the Victors?

(3) How many witchcraft trials do you know of in which the defendants were acquitted?

Actually most of them were acquitted merely by displaying the proper attitude to the authorities. Rarely were nice people convicted. But the charges were either bogus or politically motivated just the same. And you could not defend yourself based on truth but only the same theology that accused you in the first place. Groupthink and mass-catharsis is integral to witchcraft and heresy trials; usually the most hysterical are the accusers and the accused themselves, but it is a manifestation of mob-psychology, which the secular and canonical justice system skillfully manages. Half of justice is the perception of justice in an unjust natural world.

[chalutzim]

(...)

(2) What is political about punishing "murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds"?

Who defines the terms, the Victors?

Those terms need any definition, Scott Smith?

[Scott Smith]

(...)

(2) What is political about punishing "murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds"?

Who defines the terms, the Victors?

Those terms needs any definition, Scott Smith?

Your sentence makes no sense.

I assume you meant to say, "those terms don't need any definition."

Crimes are specifically defined by statute and legal precedent. They cannot be invented on the fly for political purposes in the Anglo-Saxon legal tradition, however grandiloquent the motives or the atrocity-propaganda. This would be called ex post facto law and is specifically prohibited by the U. S. Consititution. Of course, we don't apply the same Consititutional principles to our enemies when we crusade to make the world safe for Democracy.

[chalutzim]

(...) I assume you meant to say, "those terms don't need any definition."

Crimes are specifically defined by statute and legal precedent.

(2) What is political about punishing "murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds"?

I repeat the same question David made: What is political about those crimes? You assumed correctly, BTW.

[Xanthro]

War trials cannot ever be ex post facto.

The whole point behind an ex post facto law is to limit government abuse of its citizenry. Otherwise, a state might be tempted to declare as illegal some activity that is common in order to imprison political opponents.

National laws don't apply to defeated war enemies, and neither do limitations or the powers on those laws.

Germany started and lost WWII, and commited henious crimes in the process. The victors have the right to punish the state that started a war, and those intruments of the state that were responsible, including people.

Xanthro

[Scott Smith]

(...) I assume you meant to say, "those terms don't need any definition."

Crimes are specifically defined by statute and legal precedent.

(2) What is political about punishing "murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds"?

I repeat the same question David made: What is political about those crimes? You assumed correctly, BTW.

Something is not made a crime just because it is bad for someone. A crime is a crime because the law says it is a crime. And sovereign nations are the law. When sovereigns disagree they may go to war to decide an issue or take other measures to work out their differences. But to say that something is legally a crime without any basis of law behind it is inherently political; it is the "law" fitting the circumstances, not an application of law.