Crimes against humanity - an ex post facto law?

[michael mills]

I am rather interested in the concept of "malum in se" raised by Walter Kaschner, being acts which "contravene laws which, written down or not, exist to govern behavior in virtually every civilized country".

I presume Mr Kaschner's meaning is that the sovereign power of a state does not extend to a right to perform acts on its subjects that are "malum in se".

I would ask whether the concept of "malum in se", as applied to the acts of a sovereign, has changed over time. For example, does it automatically include the killing of members of a group defined by its religion?

Today we would say yes, but in the 16th and 17th centuries, and even later, European sovereign powers routinely killed or otherwise persecuted those of their subjects who belonged to proscribed religious groups. An example would be the St Bartholomew's Day massacre of French Protestants by agents of the French sovereign. That act aroused vehement protests on the part of sovereign powers that were Protestant, but none of them claimed that the French sovereign had committed a criminal act, or disputed his right to kill his subjects if he considered them worthy of death. What, say, Queen Elizabeth protested was not the act of killing, since she as a sovereign claimed that right for herself; what aroused her ire was that she, naturally, disagreed with the presumption that Protestants deserved death. In fact, she used her sovereign power to put to death those of her subjects who belonged to groups proscribed by her, eg members of the Catholic priesthood.

That is the point I am making. Sovereign powers recognised the right of other sovereign powers to do what they liked with their subjects, even if they abhorred the acts committed, and did not suggest that holders of sovereign power who had committed barbarous acts against their subjects should be held criminal. Actions by sovereign powers were by definition not criminal, no matter how nasty.

All that changed with the introduction of the concept of warcrimes and crimes against humanity. I suggest that these concepts represented an extension of the idea of "malum in se".

Even today, I would think that public opinion would not consider it "malum in se" for a sovereign power to put to death those of its subjects considered as deserving death. What is a matter for dispute is what is considered as deserving death. In early 19th century Britain, young children who stole handkerchieves were considered as deserving death, and their killing by the sovereign power was not considered "malum in se".

By the way, both Charles I of England and Scotland and Louis VI of France were convicted of and executed for treason against the sovereign power. What permitted their trial, conviction and execution was a conceptual change in the definition of sovereign power. Previously sovereign power was considered to reside in the person of the monarch, who by definition could not commit treason against himself; the new concept was that the sovereign power was an abstract entity, of which the monarch was just an agent, and as such he could commit treason against the sovereign power, in the same way as an agent of the monarch could commit treason against him.

[Dan]

Thanks as always to Walter Kaschner and Michael Mills. (How do you two keep your thoughts so focused?)

That act aroused vehement protests on the part of sovereign powers that were Protestant, but none of them claimed that the French sovereign had committed a criminal act, or disputed his right to kill his subjects if he considered them worthy of death.

Some did, but slightly later. Quiz. Who wrote to the Duke of Savoy that if he didn't lighten up with the Protestants in the south of France "You will hear the sounds of my cannon in Rome itself!" Hint, after reading Milton. And what did his admiral Blake set precidents for?

By the way, both Charles I of England and Scotland and Louis VI of France were convicted of and executed for treason against the sovereign power. What permitted their trial, conviction and execution was a conceptual change in the definition of sovereign power. Previously sovereign power was considered to reside in the person of the monarch, who by definition could not commit treason against himself; the new concept was that the sovereign power was an abstract entity,

The principles of Buchanan, the tutor to the future James I were the same as Cromwells, and put forth almost unintelligably (to me, but at least I tried) in the famous Lex Rex by Rutherford. The basic idea was that the Law was King, not that the King was the Law. It was rooted in Biblical law, where the King was subject to the Law of God. So, the sovereign power was the law of God, and abstract to a certain view point. And from where I'm sitting a much more solid ground than the Stuard family's divine right for arbitrarily ruling a society.

So, I think it was ex post facto from any view point except an arbitrary one. It wasn't rooted in the Divine Right of Kings, and it wasn't rooted in the Biblical law of the Reformers. It was based on touchy feely opinions with their base in what ever the victor's philosophy of the day happened to be.

But why don't either of you enter the race for the Governer of California? I'd vote for either of you.

[Scott Smith]

Making the World Safe for Democracy - 101

The United States stands by the Constitution and even pontificates about Crimes Against Humanity, but when it comes to the sauce for the gander and our own interests or propaganda is at stake, Soviet Justice will do just fine, or a facsimile thereof in the case of "terrorists" kidnapped from foreign countries.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. [Emphasis added.]

~ PUBLIUS,
FŒDERALIST No. 78.

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.'' Section 9, of the same article, clause 2 "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.'' Clause 3 "No bill of attainder or ex-post-facto law shall be passed.'' Clause 7 "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.'' Article 3, section 2, clause 3 "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.'' Section 3, of the same article "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.'' And clause 3, of the same section "The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.''

It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone (Vide Blackstone's Commentaries, vol. 1., p. 136), in reference to the latter, are well worthy of recital: "To bereave a man of life, Õsays he,å or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.'' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls "the BULWARK of the British Constitution'' (Vide Blackstone's Commentaries, vol. iv., p. 438). [Emphasis added. Capitals in original.]

~ PUBLIUS,
FŒDERALIST No. 84.

I vote for Hamilton!

[Dan]

and the practice of arbitrary imprisonments,

What were Goering's wife and daughter charged with?

[David Thompson]

Dan -- I don't know anything about charges against Goering's daughter, but here's what I have on his wife:

Goering (Göring), Emmy Sonnemann (1893-8.6.1973) -- actress; second wife (from 1935) and widow of Reichsmarschall Hermann Goering {arrested 29 May 1947 and interned (NYT 30 May 1947:7:3; NYT 1 Jun 1947:33:1; NYT 28 Oct 1947:4:6; LT 30 May 1947:4e); put on trial before denazification tribunal (NYT 21 Jul 1948:8:2); convicted of being a Nazi activist by a West German court at Garmisch-Partenkirchen 21 Jul 1948; sentenced to a years imprisonment in a labor camp, confiscation of 30% of her property and banned from stage performances for 5 years (NYT 22 Jul 1948:7:2); witness in "Ministry" case (NYT 3 Sept 1948:10:4); died 8 Jun 1973 at Munich (Who's Who p. 101).}

[Dan]

But why was his wife and daughter put in jail, if it is specifically warned against by our Founding Fathers?

[neugierig]

Walterkaschner:
“......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).....”

Disagreeing with v. Knieriem’s views is, of course, your prerogative. As well, and I agree, because of the situation, he cannot be considered completely unbiased. Still, he was there.

And now we get to the substance of the discussion, as far as I’m concerned.

Walterkaschner:
“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.”

Exactly. As the occupying powers, they could issue laws, nobody disputes this. As the de facto sovereign, they had the legal right to do so. However, it was new law, written ex post facto. If it was based on existing International Law, as claimed, why not use same, as is.
To repeat, no one is denying the new rulers of Germany to issue laws, just have the conviction to call a spade a spade.

Walterkaschner:
“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.....”

Ok, the tribunal was a Tribunal of the victors, assembled to administer victors ‘justice‘ and
“formulated rules of their own” to do so. As stated above, I have no problem with that, it was done before and since. What I take issue with is that it was called “International Military Tribunal”, when only the victorious powers were represented and military personal was judged by civilians, for the most part. IMHO, it would have been a lot more earnest to just shoot the people accused, as was suggested at, I believe, Yalta.

Regards
Wilf
No one is free, until we are all free.

[David Thompson]

Dan -- You asked: "But why was his [Goering's] wife and daughter put in jail, if it is specifically warned against by our Founding Fathers?"

I don't know anything about Goering's daughter being put in jail. As for Goering's wife, the Germans had a different set of founding fathers from us, and the West German state governments administered the denazification laws in 1948.

I understand your point and I'm not trying to dodge it, but the old newspapers I read didn't give any details of the denazification charges against Emmy Goering. The charges might have been based on Goering's looting and black market activities, or something else entirely. As a result, I can't tell whether her year's imprisonment was something the American founding fathers warned us about or not.

[Dan]

I don't know anything about Goering's daughter being put in jail. As for Goering's wife, the Germans had a different set of founding fathers from us, and the West German state governments administered the denazification laws in 1948.

David, unless I'm mistaken, it had nothing to do with the West Germans. It was we Americans who put his wife and daughter in jail. And I don't understand the legal basis.

[David Thompson]

Dan -- Here's the contemporaneous New York Times reports of Emmy Goering's arrest and trial by German state authorities (dates given in jpg captions):

[Dan]

Thanks, David.

[walterkaschner]

Dan asked:

Who wrote to the Duke of Savoy that if he didn't lighten up with the Protestants in the south of France "You will hear the sounds of my cannon in Rome itself!" Hint, after reading Milton. And what did his admiral Blake set precidents for?

Well, I'm not certain but would have to hazard Oliver Cromwell as a guess. It sounds like him. But I have no idea what precedents Admiral Blake may have set, other than beating the pants off the Dutch fleet in the wars between England and Holland.

Regards, Kaschner

[David Thompson]

A postscript on Nazi war criminals and the Roman legal maxim "Nulla poena sine lege" (no punishment without a law):

From Document 2549-PS, in Nazi Conspiracy and Aggression, vol. V, US Government Printing Office, District of Columbia: 1946, pp. 292-293:

DOCUMENTS OF GERMAN POLITICS
[Dokumente der deutschen Politik]

Edited by
Reg. Rat Paul Meier-Benneckenstein
Vol. 3

GERMANY'S ROAD TO FREEDOM
1935

Compiled by
Dr. Axel Friedrichs
1937

Publishers Junker & Duennhaupt Berlin. Page 305

A law which originates from the rule: Nulla poena sine lege regards only such an action as illegal which violates an existing clause of a punitive law. Whatever is not forbidden and threatened with punishment is to be considered to be permissible. Such a law follows from the conception of formal wrong. National Socialism substitutes for the conception of formal wrong the idea of factual wrong: it considers every attack against the welfare of the people's community, every violation of the requirements of the life of a nation as wrong. Therefore wrong may be committed in the future in Germany even in cases when no law threatens it with punishment. Even without the threat of punishment every violation of the goals of life which the community sets up for itself is a wrong. As a result, the law gives up all claim to be an exclusive source for the determination of right and wrong. What is right may be learned aside from the law from the thought about right which stands behind the law and may not have found a perfect expression in it. The law certainly continues to be the most important source for the determination of the right ; because the leaders of a people announce their will in the law. However, the legislator is aware of the fact that he cannot give exhaustive regulations for all the situations in life; therefore he entrusts the judge with filling the remaining gaps. Maybe I can best explain our concepts to you by means of a simile: as the commander-in-chief conducts a battle with his orders, in the same way the legislator conducts the fight against crime by means of the punitive code. Every commander-in-chief will be faced with situations in which he has to trust that his subordinate leaders, within the frame of the entirety of his intentions, will supplement his will by individual orders which they have to give independently, even if within the frame of the whole. In such situations the commander-in-chief will give one order only: Act according to the situation! Similarly, the legislator will find situations in life in which he has to trust that the judge will make the right decision by

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himself within the frame of the entirety of the goals which were set by the legislation. In such cases in the fight against the criminal, the legislator can give one order only to the judge on the way : Act according to the situation! He can give to the judge only the assignment to find the punishment which he deems to be appropriate when he directs his glance upon the whole and when he interprets the existing regulations not literally but according to their spirit and basic thoughts.

Even Nazis thought the maxim was inapplicable, although for completely different reasons.

[walterkaschner]

David, thanks for that interesting tid-bit!

It provides some insight as to the Nazis own view of the nulla poena sine lege doctrine. I have always found that it called up my sense of the highly ironic to observe the various ways in which Nazi doctrine itself was at utter odds with the very arguments proffered in opposition to the measures taken at war's end against its protagonists.

Regards, Kaschner

[David Thompson]

My pleasure, Walter. It's great to hear from you again, and I couldn't agree more.