Crimes against humanity - an ex post facto law?

[David Thompson]

This digest describing the elements of crimes against humanity, as they existed in WWII, is from Law Reports of Trials of War Criminals vol. XV, United Nations War Crimes Commission (1949), pp. 134-138:

C. 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 II, paragraph 1, of Control Council Law No. 10 which provides that :

" Each of the following acts is recognised 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(2) and the Flick Trial(3). The law laid down in these trials and in some others reported upon may be summarised 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.(4)

(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 offences 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 Government " to inspire the German population to murder Allied fliers by lynch law or mob justice " was a crime against humanity.(5) In the Flick Trial, however, it was laid
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(1) See Vol. XIII, pp. 151-152.
(2) See Vol. VI, pp. 78-83.
(3) See Vol. IX, pp. 44-52.
(4) See Vol. VI, p. 79.
(5) See Vol. XII, p. 71 note 2. Contrast however the fact that in the Justice Trial, whereas the indictment charged the taking part in Hitler's programme of inciting the German civilian population to murder Allied airmen forced down within the Reich as both a war crime and a crime against humanity, the Judgment, in dealing with Klemm's responsibility in this connection, spoke only of such participation as being in violation of the laws of war (Vol. VI, p. 81).

TYPES OF OFFENCES 135

down that offences against industrial property could not constitute crimes against humanity.(1) This ruling was adopted by the Tribunal acting in the I.G. Farben Trial,(2) while a quotation from the Judgment delivered in the Einsatzgruppen Trial which has been quoted in Volume IX of this series(3) indicates that the Tribunal acting in that trial regarded crimes against humanity as being offences such as " murder, torture, enslavement " and infringements of " freedom of opinion . . . the moral or physical integrity of the family . . . or the dignity of the human being ".

The Judgment in the Flick Trial declared that " a distinction could be made between industrial property and the dwellings, household furnishings, and food supplies of a persecuted people ",(4) 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(5) could refer to acts of economic deprivation of this more personal type.

It may readily be doubted whether certain other categories of war crimes could ever constitute crimes against humanity, even if the other attributes of crimes against humanity (reviewed below) are displayed. Thus, it does not seem possible that war crimes in which there is no violation of human rights(6) could possibly be regarded as crimes against humanity.(') In the absence of relevant judicial pronouncements, then, it is not possible to state in every instance whether a type of act which could constitute a war crime could also amount to a crime against humanity.

(iii) In the second place, it is established that the possible victims of crimes against humanity form a wider group than the possible victims of war crimes. The latter category comprises broadly speaking the nationals of armed forces of belligerent countries or inhabitants of territories occupied after conquest (other than enemy nationals) against whom offences are committed by enemy nationals as long as peace has not been declared. Crimes against humanity on the other hand could have included also offences committed by German nationals against other German nationals or any stateless person, and apparently also against nationals of Hungary and Rumania.(8)

(iv) Isolated offences do not constitute crimes against humanity (9)
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(1) See Vol. IX, pp. 48-51.
(2) See Vol. X, pp. 41-42 and 64.
(3) See Vol. IX, pp. 49-50.
(4) See Vol. IX, p. 26.
(5) Quoted in Vol. IX, pp. 50-1.
(6) See pp. 131-4.
(7) This remark assumes crimes against humanity to be restricted to offences against human rights. If on the other hand they are taken to include all offences that grossly offend the human conscience it may be that atrocities against dead bodies could be regarded as crimes against humanity.
(8) See pp. 87-8, Vol. IX, pp. 51-2 and Vol. XIII, pp. 133-135.
(9) See Vol. VI, pp. 79-80 and Vol. IX, p. 51, and compare Vol. XIII, pp. 135-136.

136 TYPES OF OFFENCES

(v) Apparently, the proof of systematic governmental organisation of the acts alleged is a necessary element of crimes against humanity.(1)

(vi) According to the judgment delivered in the Justice Trial, if the offences are not " Atrocities and offences ", as defined in Law No. 10, and committed against civilian populations, but amount to persecutions, they must be persecutions on political, racial or religious grounds.(2)

(vii) According to the judgment delivered in the Flick Trial, the omission from Law No. 10 of the Allied Control Council of the words " in execution of or in connection with any crime within the jurisdiction of the Tribunal ",(3) did not serve to extend the scope of that law to cover crimes against humanity occurring before 1st September, 1939 ; the Tribunal's main argument was that the Charter of the International Military Tribunal, which had been made an integral part of Law No. 10(4), had been interpreted by the latter tribunal in such a way that crimes against humanity committed before the above-mentioned date were excluded from the scope of the Charter.(5)

The principle laid down in the Flick Trial, had been left undecided by the Tribunal conducting the Justice Trial (Tribunal III) which, in its exposition on the question of crimes against humanity, on this point did not go beyond saying :

" The evidence to be later reviewed established that certain inhuman acts charged in Count 3 of the Indictment were committed in execution of, or in connection with, aggressive war and were, therefore, crimes against humanity even under the provisions of the IMT Charter, but it must be noted that C.C. Law 10 differs materially from the Charter. The latter defines crimes against humanity as
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(1) See Vol. VI, pp. 79-80 and Vol. IX, p. 51.
(2) See Vol. VI, pp. 79-80 and 80-83.
(3) Article 6(c) of the Charter of the International Military Tribunal makes the following definition : " Crimes against humanity : namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated." (Italics inserted.)
(4) Article I of Law No. 10 provides : " The Moscow Declaration of 30th October, 1943, ' Concerning Responsibility of Hitlerites for Committed Atrocities ' and the London Agreement of 8th August, 1945, ' Concerning Prosecution and Punishment of Major War Criminals of the European Axis ' are made integral parts of this Law."
(5) The statement of the International Military Tribunal on this point runs as follows : " With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organised and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity ; and in so far as the inhumane act charged in the Indictment and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity." (British Command Paper, Cmd. 6964, p. 65.) (See Vol. IX, pp. 44-5.)

TYPES OF OFFENCES 137

inhumane acts, etc., committed . . . in execution of, or in connection with, any crime within the jurisdiction of the tribunal . . .', whereas in C.C. Law 10 the words last quoted are deliberately omitted from the definition. "(1).

On the other hand, the Judgment in the Einsatzgruppen Trial conducted by Tribunal II, included the following explicit declaration :

" The International Military Tribunal, operating under the London Charter, declared that the Charter's provisions limited the Tribunal to consider only those crimes against humanity which were committed in the execution of or in connection with crimes against peace and war crimes. The Allied Control Council, in its Law No. 10, removed this limitation so that the present Tribunal has jurisdiction to try all crimes against humanity as long known and understood under the general principles of criminal law.

" As this law is not limited to offences committed during war, it is also not restricted as to nationality of the accused or of the victim, or to the place where committed."

In estimating the relative authoritativeness of the decision on this question reached in the Flick Trial and in the Einsatzgruppen Trial-, it should be remembered that since the Indictment in the latter charged crimes against humanity committed " between May, 1941 and July, 1943 " the dictum quoted from the judgment delivered therein was not necessary to the decisions reached.(2) In the Flick Trial, on the other hand, Count 3 charged the commission of crimes against humanity between January, 1936 and April, 1945.(3) and the Tribunal had to come to a decision as to the criminality of four actual transactions which were completed before 1st September, 1939.(4)

The Tribunal which conducted the Flick Trial appears to have been on sounder ground when it said that " crimes committed before the war and having no connection therewith were not in contemplation "(5) than when it declared that " In the I.M.T. trial the tribunal declined to take jurisdiction of crimes against humanity occurring before 1st September, 1939 ". This latter phrase does not seem to represent the complete picture, as may be gathered from an examination of the relevant passage from the Judgment of the International Military. Tribunal quoted above.(6) Indeed the International Military Tribunal
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(1) Vol. VI, pp. 40-41 and 83. The attitude to this point of the Tribunal which conducted the Justice Trial is further set out in Vol. IX, p. 46. The Tribunal left open the question whether it would have considered evidence of offences committed before 1939 had they been charged in Counts 2, 3 and 4.
(2) Similarly in the Justice Trial the crimes against humanity charged in Count Three were said to have been committed " between September, 1939 and April, 1945 " ; See Vol. VI, p. 4.
(2) See Vol. IX, p. 4.
(4) See Vol. IX, p. 25.
(6) See Vol. IX, p. 26. (Italics inserted).
(6) See p. 136 note 5. It has been pointed out that the International Military Tribunal "recognised some crimes committed prior to 1st September, 1939 as crimes against humanity in cases where their connection with the crime against peace was established. Although in theory it remains irrelevant whether a crime against humanity was committed before or during the war, in practice it is difficult to establish a connection between what is alleged to be a crime against humanity and a crime within the jurisdiction of the Tribunal, if the act was committed before the war. . . ." (Egon Schwelb, in British Year Book of International Law, 1946, pp. 204-205). (Italics inserted). For a further elaboration of the learned writer's views on this point, see Vol. IX, p. 47-8.

138 TYPES OF OFFENCES

could hardly have decided that no crime against humanity could possibly have been committed before the war, because Article 6 (c) of the Charter includes the words " before or during the war " which govern at least the first part of that provision.(1)

The Tribunal which conducted the High Command Trial may be thought to have agreed with the attitude taken to this point by the Tribunal acting in the Flick Trial ; the former pointed out that : " All the acts relied upon as constituting crimes against humanity in this case occurred during and in connection with the war ".(2)

(viii) The crime of genocide, which received recognition by the Tribunal which conducted the Justice Trial,(3) bears similarity to certain types of crimes against humanity but also certain dissimilarities ; these have been discussed in previous volumes of this series, and the outcome seems to be that, while the two concepts may overlap, genocide is different from crimes against humanity in that, to prove it, no connection with war need be shown,(4) and, on the other hand, genocide is aimed against groups, whereas crimes against humanity do not necessarily involve offences against or persecutions of groups. The inference may be justified that deeds are crimes against humanity within the meaning of Law No. 10 if the political, racial or religious background of the wronged person is the main reason for the wrong done to him, and if the wrong done to him as an individual is done as part of a policy or trend directed against persons of his political, racial or religious background ; but that it is not necessary that the wronged person belong to an organised or well-defined group.(5)
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(1) See p. 136, note 3.
(2) For certain relevant Chinese provisions relating to what may possibly be regarded as crimes against humanity, see Vol. XIV, p. 156.
(3) See p. 122.
(4) See Vol. XIII, p. 41.
(5) See Vol. VI, p. 83, note 3.

[David Thompson]

An unsourced and polemical post from murx was removed by this moderator pursuant to previous warnings - DT.

http://forum.axishistory.com/viewtopic. ... 0#p1567220 (sourcing)
http://forum.axishistory.com/viewtopic. ... 7#p1547717 (sourcing)
http://forum.axishistory.com/viewtopic. ... 1#p1514191 (sourcing)
http://forum.axishistory.com/viewtopic. ... 3#p1522883 (sourcing)
http://forum.axishistory.com/viewtopic. ... 7#p1527767 (off-topic flamebait)

[Weißruthenien]

Dear David,

I very much appreciate your comments. I think you are dead on.

To the other posters, I am more interested in why the virulent rejection of the IMT. What is your agenda there? Do you believe that crimes were not committed? Or that the defendants were tried unfairly? I am genuinely curious. Certainly the IMT was something new (which was recognized by all participants who strove to make it as fair and as tied to the law as possible). Is your argument that if it wasn't a crime under German code it couldn't be charged? Because 99% of crimes were still illegal, even under Nazi code.

Why the angst over the IMT?

[Lorsa]

Check please case Kononov v. Latvia. I couldn't explain better about international legislation.

http://www.unhcr.org/refworld/type,CASE ... 0b2,0.html

[BarKokhba]

With respect to the ex post facto argument against the Nuremberg Trials, its amazing that legalese is of such concern here, considering the nature and quantity of the atrocities committed. Perhaps the pursuit of justice takes legal and moral precedence here, in respect to the millions of victims.

[wm]

Well, the right to a fair trial, subjected to the rule of law, is universally regarded as a substantive human right.
The "no penalty without a law" principle is universally accepted by everybody today (in Europe universally accepted since the Roman times) as a basic requirement of the rule of law.

If human rights can be redefined by arbitrary decisions they are not human rights they are simply (arbitrary) laws.
And if human rights can be redefined by arbitrary decisions they will be modified by arbitrary decisions - decisions made by the so called good guys, and by the so called bad guys, offering no protection to the people who need them most.

And it's not just idiotic divagations of the Academia, in the communist Poland this was actually done and thousands of innocent people were sentenced to death for crimes that weren't crimes.

I should be remembered that the rule of law protects people not only from the "bad guys" and but from the "good guys" too. That someone claims to be a "good guy" doesn't guarantee anything.

Frequently it's only the legalese that stands between you and a torture chamber, or between you and a life sentence for nothing - even in the most progressive countries.

[Sergey Romanov]

> The "no penalty without a law" principle is universally accepted by everybody today (in Europe universally accepted since the Roman times) as a basic requirement of the rule of law.

Because crimes against humanity, peace and other Nuremberg stuff have already been codified. Back before the IMT, when they hadn't been, it was absolutely correct to abandon this principle, because its blind application would have led to more injustice than making a justified exception.

You've made a common-sense case for this principle - and it is sound in most cases - but it wouldn't have been sound in the case of Nuremberg, because one would have to abandon the very common sense on which this principle is built to apply this principle to the Axis powers.

[wm]

I suppose that is a new line of thought here.
So far it was argued, if I'm not mistaken the new laws weren't really new, they were a procedural shortcut, a useful synthesis of existing laws - which facilitated reasonably speedy, not bogged down with legal minutiae, trials.

Isn't the principle "more injustice than making a justified exception" a part of Utilitarianism? The idea that we should adopt those legal rules that will maximize utility. But still it's "adopt", not "change".

[BarKokhba]

Points taken; interesting discussion. The bottom line here seems to be that the laws applied at the Nuremberg Trials were not ex post facto after all, but an administrative manipulation of existing law in an attempt to provide some justice (and an excuse to expose some of the atrocities) to the 'alleged' perpatrators of war crimes and crimes against humanity. Nevertheless, it is absolutely astounding how many criminals in the nazi hierarchy and military brass literally got away with mass murder via the feeble system of law in the West. Under the Soviets it was a bit of a different story.

[steve248]

Most if not all the war crimes trials held in the former DDR, including the last one, based the charges on crimes against humanity and quote Control Council Law 10 as the basis.
Unlike the West German war crimes courts where charges were based on its constitutional laws.

As regards the post immediately above by BarKokhba, the differences in courts trying mass murder cases in the east and west simply indicates the difference in judicial systems. Certainly West German war crimes investigators tended to prefer trying officers rather than NCOs or enlisted men; the later categories were unlikely to be able to dodge 'orders being orders'. Therefore you do not see many of these men charged with with war crimes unless there was overwhelming evidence. against them.

The Soviet trials were mainly before military courts and no one was spared and their defence lawyers on the side of the court. Thus the difference.

[wm]

As far as I know many of the important Nazis were handed over to the Soviets by the Allies, as most of them fled to the Western zone of occupation.

With all due respect to the Russian people (who were the first victims, and suffered the most from Stalinist prosecutions) the postwar Soviet " justice efforts" (public and secret trials, extrajudicial executions) included so many innocent people, especially in Poland, Ukraine, Baltic States it may be argued they were a crime against humanity themselves.
It seems people tend to forget easily the Stalinist USSR was a genocidal state itself.