Crimes against humanity - an ex post facto law?

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Scott Smith
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Post by Scott Smith » 05 Aug 2003 01:06

Xanthro wrote:War trials cannot ever be ex post facto.
Nonsense. Making up a law which did not exist prior to the enforcement of that law is an ex post facto law. It is done for arbitary political reasons normally and that is why the Constitution expressly forbids the practice.
The whole point behind [a prohibition of] 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.
Agreed.
National laws don't apply to defeated war enemies, and neither do limitations or the powers on those laws.
Of course they do if jurisdiction is assumed. But since we do not have any law broken (because no laws existed), all we have is a political trial held by the Victors who thus have invented jurisdiction and invented crimes as though they were based on laws which they had the right to adjudicate.
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.
Nonsense. The Losers always started the war when Crusades were fought. The only semblance of objectively determining who started a war would be based on prior treaty agreements defining the just and proper use of military force and adjudicated by neutrals in a conflict with the agreement of all parties to that adjudication. Only individuals can be tried for breaking their own laws in force, not governments, who make such laws and agreements in the first place. Objectivity and jurisdiction was certainly not accomplished by the 1945 London Treaty. All Nuremberg did was to use the fair and enlightened reputation of Anglo-Saxon law to generate Victor-propaganda. It was a step backwards into the Dark Ages, with the law used for political purposes. Might makes right and only charlatans pretend otherwise. Enemy outrages were magnified for the spectacle and Allied outrages were ignored or explained away as necessary and good. Any unfortunate consequences of the Allied Peace were justified or deemed as unintended consequences, including the Iron Curtain. The white phosphorous on the blackened skin of German or Japanese children was thus necessary and good--a Holy and Pure use of military force--and each dying victim at Nagasaki or Hamburg thereby earned the Allies their right to judge the vanquished. We are supposed to thank them for that.
:)
Last edited by Scott Smith on 05 Aug 2003 07:01, edited 1 time in total.

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Post by David Thompson » 05 Aug 2003 02:08

Scott -- Well, let's take off the humanistic mask, and look at it your way, then. Sovereign nations are the law. Germany was defeated, and the allies imposed our sovereignty on them. Since they lost, they had nothing coming. Who cares about them? -- their tears aren't coming from our eyes. They can be grateful that they were allowed to live, or not, according to our caprice. Certainly the allies weren't as cruel to the population of Germany and the other axis powers as those nations were to the countries they temporarily conquered. If you think slavery is acceptable in wartime, why restrict the practice? If it weren't for our effete allied rulers and their hypocritical insistance on humane procedure, we could all be sipping brewskis while the defeated ones continually slave, generation after generation, to keep our homesteads looking nice and tidy and prosperous.
Last edited by David Thompson on 05 Aug 2003 02:14, edited 1 time in total.

Xanthro
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Post by Xanthro » 05 Aug 2003 02:11

Scott Smith wrote:
Xanthro wrote:War trials cannot ever be ex post facto.
Nonsense. Making up a law which did not exist prior to the enforcement of that law is an ex post facto law. It is done for arbitary political reasons normally and that is why the Constitution expressly forbids the practice.
From the person constantly saying nations are sovereign and can make their own laws, unless of course, that is used to punish Nazis, as opposed to Nazis killing cilivians. :roll:

The LAWS that are enforced among nations are settled by war. Your Nazis lost. There are no ex post facto laws that apply because the victors legal system doesn't apply to defeated nations.
Xanthro wrote:The whole point behind [a prohibition of] 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.
Scott Smith wrote:Agreed.
Which is at odds with your reasoning above.
Xanthro wrote:National laws don't apply to defeated war enemies, and neither do limitations or the powers on those laws.
Scott Smith wrote:Of course they do if jurisdiction is assumed. But since we do not have any law broken (because no laws existed), all we have is a political trial held by the Victors who thus have invented jurisdiction and invented crimes as though they were based on laws which they had the right to adjudicate.
No, they don't. As you continually state, nations are sovereign, their laws only apply to their citizens and other nationals in their territory.

The don't apply to citizens of other nations in other countries.

While US law would apply to US citizens in defeated Germany, it doesn't apply to German Citizens.

Jurisdiction isn't claimed by nationality, it's claimed because the enemy is defeated. The enemy can't claim protection under the laws of the victor.

It's only by the good graces of the victor, and public opinion, that any type of legal protection is granted.
Xanthro wrote: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.
Scott Smith wrote:Nonsense. The Losers always started the war when Crusades were fought.
And pigs fly, the Pope is Jewish, the Earth is flat, and the Nazis were teh good guys in the Scott Smith universe. :roll:

Wait, let's hear another witch hunting posts. You seem overly hung up on mediveal trials and tribulations.
Scott Smith wrote:The only semblance of objectively determining who started a war would be based on prior treaty agreements defining the just and proper use of military force and adjudicated by neutrals in a conflict with the agreement of all parties to that adjudication.
Yes, let us ignore such facts as, let's see, Germany invading her neighbors.

One can always excuse evil, which you are good at, but it's still nothing but a lame excuse. Germany started WWII, and it lost WWII.
Scott Smith wrote:Only individuals can be tried for breaking their own laws in force, not governments, who make such laws and agreements inthe first place.
Indivdiuals are the instruments of the State, and that's why they were tried.
Scott Smith wrote:Objectivity and jurisdiction was certainly not accomplished by the 1945 London Treaty.
When you measure objectivity by the Scott Smith standard of "are Nazis punished?" then yes it wasn't objective, because Nazis were punished.

To actual objective people, it was objective and was much better than the alternative, of simply executing the guilty without trial.
Scott Smith wrote:All Nuremberg did was to use the fair and enlightened reputation of Anglo-Saxon law to generate Victor-propaganda. it was a step backwards into the Dark Ages, with the law used for political purposes.
How about a post without reference to dark ages, crusades, or witches. You sound like a bad parody of a Monty Python skit.
Scott Smith wrote:Enemy outrages were magnified for the spectacle and Allied outrages were ignored or explained away as necessary and good.
Maginifed? Oh, that's right, you think Jews simply died in the horrid conditions of war. That somehow being Jewish made on more likely to die of disease and starvation. :roll:

Hence, to you, anything stating that Jews were deliberately killed is a magnification. Then you have the gall to talk about objectivity.
Scott Smith wrote:Any unfortunate consequences of the Allied Peace were justified or deemed as unintended consequences, including the Iron Curtain. The white phosphorous on the blackened skin of German or Japanese children was thus necessary and good--a Holy and pure use of military force--and each dying victim at Nagasaki or Hamburg thereby earned the Allies their right to judge the vanquished. We are supposed to thank them for that.
Be thankful they didn't condem the nations to oblivion. The Allies could have. They could have ensured that neither Germany or Japan ever again had the industrial capacity to wage war. Instead, the Allies, led by the United States, chose to change the mindset of those nations, so they could once again become valued members of the international community.

Part of the changing of that mindset required the trial and purging of ideology that led them down the path of war.

Be thankful that those who were in a position of power and used that position for evil were punished, and not the innocent who otherwise would be.

Xanthro

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Post by neugierig » 05 Aug 2003 02:12

There still seem to be some who believe the IMT was a court of law. :?
As pointed out by Lucius Felix Silla, CCL No.10 was ex post facto law. Scott Smith’s posts are very good as well. But, here is my one cent worth.

I am again quoting from a book by Dr. August von Knieriem: “The Nuremberg Trials”. v. Knieriem (v.K), a Lawyer, was, as member of the board of IG Farben, co-defendant at Nürnberg, i.e., he was there.
In the first part of his rather voluminous work, 560 pages (no pictures), he deals with:
A. Problems of Substantial Law ( 1.CCL No.10. 2. Punishability according to international law,3. Punishability according to national law,4. Attempts at a practical solution)
B. Problems of Judicial Organization (1.The legal nature of the Nürnberg Tribunals.2. The Nürnberg Tribunals as Tribunals of the Victor)
C. Problems of Procedural Law (1.General conditions for regulating the procedures.2.The Statutory foundations of the procedural law applied in Nürnberg [a. Background, b. Anglo-American and Continental criminal procedure, c. Ordinance No.7] 3. The procedure in action [a. Supplementation of the Statutory Provisions by the Tribunals. b. The general attitude of the Tribunals. c. The attitude of the Prosecution. d. Prosecution and Defence.] 4. Conclusions
D. General Conclusions

Under A., 1, CCL No.10, he writes: “.....The point of view that CCL No.10 only codified a legal situation which existed before would be correct, if even without this statute the same punishment could have been inflicted on the basis of the criminal law valid and applicable at the time the acts were committed. Why, then, was CCL No.10 issued in the first place and why was punishment not inflicted on the basis of the international criminal law in force before, in order to avoid the somewhat embarrassing question of whether ex post facto law was being applied?......”

Here are his ‘General Conclusions‘:
“ OUR EXAMINATION of questions of substantive law, judicial organization,
and procedural law have led to the following results:
1. CCL No10 ought not to have been applied; it’s application violated the principle
that punishment cannot be based on an ex post facto statute.
2. The application of CCL No.10 cannot be justified by the assertion that this statute
does not contain new law. At the time of the acts there was no international criminal law on the basis of which individuals could have been punished for violating international law.
3. Punishment, therefore, could only be based on national law. The criminal responsibility of the accused might have been determined by
a) German criminal law; or
b) By the legal system or systems determined by the principles of the law of conflict of criminal laws; i.e., the principles of personality, territoriality, and protection, and by the criminal laws of war. .
c) Occupational law established by the occupants in accordance with international law.
4. The following points of view would have had to be taken into account:
a) In examining Punishability on the basis of foreign criminal law, no matter whether it was general criminal law or criminal law of war, one would. have had to take into account
whether or not the act was punishable under the law of the place and the time when it was committed. This would have been German law for all acts involved, and no act should have been punished under any foreign law unless it was also punishable under the German law of the time of its commission.
b) A special criminal law of occupation could have been applied retroactively only if the
act in question had also been punishable according to the German law of the time when it was
committed.
5. In judging the acts submitted to them, the Nuremberg Tribunals
might have applied any criminal law which they were instructed
to apply. Without such instruction they could only apply American
law of war if they were American military tribunals; but if
they were occupation courts they could only apply German and
occupation law.
6. Practically speaking, the Nuremberg Tribunals, if they wished to
judge in an unobjectionable manner without being suffocated
by the problems of the law of conflict of criminal laws, could
only have applied German law.
7. The Nuremberg Tribunals were not international Tribunals but
American Tribunals of occupation. As such they were obliged
to take into consideration certain principles of international law
on the procedure to be applied in punishing foreigners; as
American tribunals they were furthermore bound by the Constitution
of the United States and had to observe the constitutional
guaranties of fair criminal procedure.
8. The procedural law actually applied rested upon Anglo-American
principles of criminal procedure. As far as continental
institutions of procedure were accepted, they were either misunderstood
or irrelevant.
9. The application of the Anglo-American law of criminal procedure
presupposes equality of weapons between prosecution
and defence. Otherwise, fairness of procedure could not be guaranteed.
10.In fact, there was no equality of weapons but an overwhelming
preponderance of the prosecution. As this inequality of weapons between prosecution and
defence was inevitable, the Anglo-American law of criminal procedure ought not to have been
applied.
11. It would have been both useful and psychologically effective to
base the procedure on a revised German code of criminal procedure.
12. Next to the application of German law, it would have been
desirable to add to the tribunals German and neutral judges in
order to take away the odious character of being tribunals of the
victors.
13. The application of denazified German substantive law; the appointment
to the tribunals of judges from the victorious, the
defeated, and neutral countries; and a mode of procedure according
to the principles of German law not only would have been
practically advantageous but would also have offered a great
number of legal, moral, political, and psychological advantages.
14. If these points of view had been considered, fewer sentences
would probably have been passed, but ,acts of a truly criminal character would hardly have escaped punishment.

Regards
Wilf
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Post by David Thompson » 05 Aug 2003 02:42

neugierig --

(1) Does von Knieriem explain how, if "A special criminal law of occupation could have been applied retroactively only if the
act in question had also been punishable according to the German law of the time when it was committed,"

he could recommend "[t]he application of denazified German substantive law" to war crimes proceedings, since the offenses would not have "been punishable according to the German law of the time when it was committed"?

Did von Knieriem make any attempt to explain the effect of this proclamation:

"Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority by Allied Powers; June 5, 1945"

Declaration regarding the defeat of Germany and the assumption of supreme authority with respect to Germany by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom and the Provisional Government of the French Republic.

The German armed forces on land, at sea and in the air have been completely defeated and have surrendered unconditionally and Germany, which bears responsibility for the war, is no longer capable of resisting the will of the victorious Powers. The unconditional surrender of Germany has thereby been effected, and Germany has become subject to such requirements as may now or hereafter be imposed upon her.

There is no central Government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country and compliance with the requirements of the victorious Powers.

It is in these circumstances necessary, without prejudice to any subsequent decisions that may be taken respecting Germany, to make provision for the cessation of any further hostilities on the part of the German armed forces, for the maintenance of order in Germany and for the administration of the country, and to announce the immediate requirements with which Germany must comply.

The Representatives of the Supreme Commands of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom and the French Republic, hereinafter called the "Allied Representatives," acting by authority of their respective Governments and in the interests of the United Nations, accordingly make the following Declaration:

The Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom, and the Provisional Government of the French Republic, hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority. The assumption, for the purposes stated above, of the said authority and powers does not affect the annexation of Germany.

The Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom, and the Provisional Government of the French Republic, will hereafter determine the boundaries of Germany or any part thereof and the status of Germany or of any area at present being part of German territory."

The Avalon Project : Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority by Allied Powers; June 5, 1945
The Avalon Project at Yale Law School
http://www.yale.edu/lawweb/avalon/wwii/ger01.htm

Under these circumstances, it should come as no suprise to you that "There still seem to be some who believe the IMT was a court of law."

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Post by neugierig » 05 Aug 2003 03:36

David Thompson, with all due respect.
The issue is, was CCL No.10, applied at Nürnberg, ex post facto law. The answer: Yes.
As for who was in charge? Art. 42 of the Hague Rules of Land Warfare states:
“Territory is considerate occupied when it is actually placed under the authority of the hostile army.......”. Of course, the victors were in charge and could do is they please. My dilemma, why call the charade at Nürnberg ‘International Military Tribunal’ when in fact it was victors ‘justice’. I have no problem with them, the Allies, issuing laws, they were the legal authority. But why not be earnest and admit to it, instead of trying to dress it up as judicial procedures based on, non existent, “International Law”. If, and this is the point von Knieriem is making, the accused were to be tried in court, existing, German law would have had to be applied.

Regards
Wilf
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Post by David Thompson » 05 Aug 2003 03:50

neugierig -- Although I disagree with it, I appreciate your courteous answer.

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Post by Scott Smith » 05 Aug 2003 06:21

David Thompson wrote:Scott -- Well, let's take off the humanistic mask, and look at it your way, then. Sovereign nations are the law. Germany was defeated, and the allies imposed our sovereignty on them. Since they lost, they had nothing coming. Who cares about them? -- their tears aren't coming from our eyes. They can be grateful that they were allowed to live, or not, according to our caprice.
I've never argued any different. What I object to is the notion that the Nuremberg warcrimes trials was a humanitarian measure of infinite justice and enlightenment instead of a crass propaganda ploy that actually sets back international relations--an Advance to Barbarism and Victor's Justice.
Certainly the allies weren't as cruel to the population of Germany and the other axis powers as those nations were to the countries they temporarily conquered.
I disagree with that premise. The only thing that saved the Germans after the war was that they were needed to fight the Cold War on the cheap.
If you think slavery is acceptable in wartime, why restrict the practice?
What do you think conscription is? It is slavery for the duration of an emergency. Since to fight modern war there must be labor to run the factories a nation with a labor shortage will conscript workers the same way it conscripts soldiers. If enemy territory is occupied then it will conscript foreigners too. Not all nations can just print dollar bills like ours does when it needs money.
If it weren't for our effete allied rulers and their hypocritical insistance on humane procedure, we could all be sipping brewskis while the defeated ones continually slave, generation after generation, to keep our homesteads looking nice and tidy and prosperous.
We did not need to; we had our own Niggers to do it. There was no labor shortage in the United States, which had seen 33% unemployment prior to mobilization. Malcom X said the only thing that gave the Black man a break is that Hitler and then Stalin put some real pressure on the White man. And when it was all over they could not get the Niggers back onto the plantation without fighting another bloody Civil War. Slavery is not productive anyway. Sure, some could be used for digging bombproof tunnels until they dropped dead, but those assembling V-2 components were treated much better. And many of the foreign conscripts had labor contracts complete with regular leaves to go back to France and get laid; some of them never went back to their jobs in Germany and the rigors of the Allied bombardments. AWOL workers were not always easy to find. Other "slaves" were simply POWs. But of course, German civilians and ex-soldiers impressed for forced-labor was just "retribution" for "starting a war." Call it reparations instead of loot. Which is worse, a nation which exploits its enemies to the nth degree to stave off a dishonorable peace, or a nation that exploits its defeated enemy to the nth degree and is no longer under any danger but then calls it justice?
:)
Last edited by Scott Smith on 05 Aug 2003 06:49, edited 1 time in total.

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Post by David Thompson » 05 Aug 2003 06:26

Scott -- Without reference to the merits of your argument, please avoid racial slurs.

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Post by Scott Smith » 05 Aug 2003 06:45

Xanthro wrote:Be thankful they didn't condem the nations to oblivion.
Why would I care? I'm Anglo-Saxon, not German. The New World Order won the game long before I was born. And I could be part of the system if I were so inclined--more so in any case than any minority, including Jews. Besides, as far as I'm concerned the worst damage was already done with American Interventionism in two world wars.
The Allies could have.
And they would have but for the Soviets getting greedy. Still, the Soviets were neatly contained; for the most part the establishment never panicked during the Cold War the way they had over the idea that Hitler actually had a popular following of the middle classes, and thus that Democracy-Capitalist regimes could actually be replaced by populistic mass-movements. By comparison, the Red Scares were something of a pitchforks-and-barricades joke for the Anglo-Saxon plutocracy.
:)

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Post by Scott Smith » 05 Aug 2003 06:47

David Thompson wrote:Scott -- Without reference to the merits of your argument, please avoid racial slurs.
Okay but I was just paraphrasing Malcolm X.
:wink:

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Post by michael mills » 05 Aug 2003 08:31

The term "Crime against Humanity" was invented by British lawyers during the First World War, in the context of moves to prosecute leaders and officials of the Ottoman Empire for the massacres of Armenians in 1915.

The difficulty was that the Armenians were subjects of the Ottoman Empire, and therefore what had been done to them had been an action by a sovereign government on persons subject to its authority.

Accordingly, the actions against the Armenians were not offences against the laws and customs of war, since the latter cover only acts committed by one belligerent in a war against nationals of the other belligerent. Since the massacres were not directed against nationals of a state with which the Ottoman Empire was at war, they did not constitute a war-crime, and could not be prosecuted as such.

The prevailing legal principle up until the First World War had been that a sovereign state could do anything it liked to its subjects. Since the sovereing power made the law, then any act by the sovereign power was ipso facto legal; the performance of the act itself created a de facto law legitimising it.

Of course, civilised polities considered certain acts to be barbarous, eg massacring whole populations, and so practised self-restraint in the exercise of sovereigne power. Some such polities introduced legal systems, ie constitutions, that specifically limited the sovereing power, prohibiting the government which wielded sovereign power from doing certain things.

The civilised polities which had limited their own sovereign power to prevent their governments from committing "uncivilised" acts, eg Britain, looked askance at polities which did not limit themselves and sometimes committed "barbarous" acts, eg the Ottoman Empire. The civilised polities such as Britain would sometimes express outrage at the barbarous actions committed by states such as the Ottoman Empire which did not practise self-restraint in the exercise of sovereign power; for example, Britain protested at the Bulgarian massacres in the 19th century.

Sometimes the civilised polities used the barbarous exercise of sovereign power by "uncivilised" polities as an excuse for intervening to "protect" the populations threatened by such arbarous use of sovereign power.

But the was no suggestion by the civilised polities that such barbarous exercise of sovereign power was in itself an illegal act that could be prosecuted. The civilised polities could retaliate against the sovereign power that had committed barbarous acts, for example by sanctions, or even by going to war. But there never any suggestion that, say, the Ottoman Sultan or his ministers should be put on trial for those acts, since, although atrocious and shocking, they were not illegal according to the thinking of the time.

That changed with the First World War and the Armenian Massacres, which the Entnente condemned and wanted to punish. The justification for the concept of a "crime against humanity", ie a barbarous act by a sovereign power against its own subjects, seems to have been the concept that an act of government that would be illegal in a polity which had limited its own exercise of sovereign power should also be illegal in a polity which had not introduced such limitations to its own power.

Thus, if the British Government, say, had through legislation or convention limited its own exercise of sovereign power so as to make it illegal for its office-holders to arbitrarily put its own subjects to death, then the same action by another government, the Ottoman Empire for example, should be equally illegal and criminal and subject to prosecution, regardless of the fact that that government had not limited its own sovereign power.

That is the reason why, in the definition of "crimes against humanity" made for the purpose of the Nuremberg trials, the phrase was added "whether or not the action defined as a crime against humanity was contrary to the laws of the country where the action was committed". That meant that even if a polity exercised its sovereign power to make a law providing that members of a particular group should be put to death, other polities could disregard that law and designate the action of putting that population group to death as a "crime against humanity", and prosecute the responsible office-holders of the polity that had exercised its sovereign power in that way.

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Post by walterkaschner » 06 Aug 2003 07:51

As usual with his posts on this forum, although oft times controversial, Michael Mill's contributions to this thread are thoughtful, interesting and stimulating. I was not aware that the origin of the notion of "Crimes Against Humanity" lay in an effort by the British to prosecute leaders of the Ottoman Empire for the Armenian massacres of 1915-16, and I am grateful for that information. I am, however, compelled to nit-pick a bit with Mr. Mill's assertion that:
The prevailing legal principle up until the First World War had been that a sovereign state could do anything it liked to its subjects. Since the sovereing [sic] power made the law, then any act by the sovereign power was ipso facto legal; the performance of the act itself created a de facto law legitimising it.
As far back as the the time of the ancient Greek tyrants (and probably long before that), sovereign states in transition from one form of government to another, either by conquest or revolution, refused to recognize the legitimacy of acts of the previous government, and indeed frequently prosecuted and punished the former heads of state, who had previously held sovereign power, for acts they had committed against their own subjects. In many cases this was carried out in summary fashion, without benefit of trial. In more modern times witness the trial and execution of Charles I of England and Louis XVI of France, and the execution without formal trial of Tsar Nicolas II of Russia - and of course post Nuremberg the trials and punishment of Laval and Pétain in France, and, post Cold War, a host of Communist dictators in Eastern Europe.

But back to the topic at hand - the argument that the the charge of Crimes Against Humanity (Count Four) in the Major IMT Trials at Nuremberg offends the principle against ex post facto laws has always seemed to me to be far too superficial and simplistic. (Not so the same argument applied to Counts One and Two - conspiring and carrying out aggressive war - which have given me a great deal of trouble over the years, and, with respect to the conspiracy charge in Count One, still do.)

In the first place, even though there was (as far as I know) no crime generally and specifically recognized in civilized countries under the appelation of "Crime Against Humanity", it is clear from the indictment that this was simply a generic heading designed to designate a group of acts the preponderance of which individually were considered criminal in virtually all civilized societies. ""Murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds."

It seems to me that proponents of the argument that prosecution for commission of these acts was prohibited by the ex post facto doctrine simply ignore the underlying reason for the doctrine itself. In the U.S., ex post facto laws are prohibited under our Constitution. As articulated by our Supreme Court, the principal (but not the only) basis for the doctrine is that citizens should not be deprived of knowledge of the wrongfulness of behavior - that they should be given "fair warning" that specified behavior is illegal. See Weaver v. Graham, 450 U.S. 24, 28-9 (1981); Marks v. U.S., 430 U.S. 188, 191 (1977); Usery v. Turner Elkhorn Mining Company, 428 U.S. 1, 17 (1976).

Can there be any serious doubt that the defendants in the Nuremberg trials were aware that the acts encompassed in Count Four were considered criminal by virtually every civilized country under the face of the sun? Almost all were educated intelligent men; many were lawyers themselves.

The acts proscribed under Count Four were clearly "malum in se, that is,inherently criminal, rather than malum prohibitum, or criminal by specific prohibition. To my mind, the doctrine of ex post facto simply can not apply to crimes which are malum in se. Thus the qualification by Blackstone, cited above by David Thomson,
that 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."
The action must be indifferent in itself, which clearly the acts specified in Count Four are not. There is nothing "indifferent" in murder, rape, etc. Early on in the life of the U.S. Supreme Court it was called upon to deal with the nature of the constitutional provision prohibiting ex post facto laws. In Calder v. Bull, 3 U.S. (3 Dall.) 386,390 (1798) Chief Justice Chase stated (in what, however, is clearly obiter dicta, but which has been followed consistently thereafter by the Supreme Court as the law of the land) that the 1st criterion for determining the quality of an ex post facto law is:
Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. [Emphasis added.]
Can any of the crimes encompassed by Count Four be reasonably considered as "innocent when done"? IMHO certainly not! And the attempts by the accused or their cohorts to cover them up, or to justify them by orders from above, to my mind simply confirm their guilty knowledge that their actions were malum in se.

I am not a student of Roman Law (and indeed, not much of a student of Common Law) but I would suspect that the doctrine of nullum crimen sine lege, nulla poena sine lege might embrace the same concept as I believe the prohibition against ex post facto legislation does: that it applies to acts which are malum prohibitum but not to those which are malum in se, because the latter contravene laws which, written down or not, exist to govern behavior in virtually every civilized country.

Regards, Kaschner

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Post by walterkaschner » 06 Aug 2003 23:41

In rereading my above post in the cold light of day, I feel obliged to repudiate any impression it may have given that I believe the legitimacy of the Nuremberg IMT trials should - or indeed can - be judged by strict reference to the U.S. Constitution or to other U.S. laws, either of substance or procedure. I definitely do not. I strongly disagree with the views of August von Knieriem (himself a defendant in the I.G.Farben trials, which may go far to explain his views) as cited in gierig's post above:
7. The Nuremberg Tribunals were not international Tribunals but
American Tribunals of occupation. As such they were obliged
to take into consideration certain principles of international law
on the procedure to be applied in punishing foreigners; as
American tribunals they were furthermore bound by the Constitution
of the United States and had to observe the constitutional
guaranties of fair criminal procedure.
8. The procedural law actually applied rested upon Anglo-American
principles of criminal procedure. As far as continental
institutions of procedure were accepted, they were either misunderstood
or irrelevant.
The Charter of the IMT and the Control Council Law No. 10 issued thereunder were the consolidated act of the four powers then occupying a defeated Germany. The IMT was clearly not an "American" tribunal; the Charter and CCL#10 did not adopt the U.S. Constitution or U.S. substantive or procedural law to govern the procedings, but rather formulated rules of their own, agreed to by the four occupying powers, to be applied. The procedural rules embraced as many - if not more - concepts of continental principles as of common law principles. Moreover, all four powers were represented both on the judicial bench and on the prosecutorial staff.

My references above to the U.S. Constitution and the Supreme Court decisions thereunder were simply to demonstrate a judicial recognition, which I believe is not singular to the United States, of the basic principle of justice which underlies the ex post facto doctrine, and were not to suggest that the IMT was bound to follow in letter perfect form the detailed interpretations that U.S. courts have placed upon that doctrine or any other aspect of U.S. law.

With apologies for prolixity, regards, Kaschner

David Thompson
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Post by David Thompson » 07 Aug 2003 01:12

Walter -- Thanks for your excellent posts.

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