Ex post facto law and the Nuernberg trials

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Ex post facto law and the Nuernberg trials

Post by David Thompson » 24 Jan 2003 04:02

"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 US Constitution.

Note that, according to Blackstone, 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."

The proceedings of the International Military Tribunal (IMT) at Nuernberg were attacked by the defendants as being ex post facto in nature. A number of contributors to this forum have also attacked the IMT proceedings as being ex post facto. The IMT rejected the attacks, using the reasoning below (from The Avalon Project: Nuremberg Trial Proceedings Vol. 22 at : http://www.yale.edu/lawweb/avalon/imt/proc/09-30-46.htm). Keeping in mind the definition of an ex post facto law, how convincing is the IMT's explanation?

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Afternoon Session
THE PRESIDENT: I now ask Mr. Biddle to continue the reading of the Judgment.
MR. FRANCIS BIDDLE (Member of the Tribunal for the United States):

Violations of International Treaties

The Charter defines as a crime the planning or waging of war, that is, a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against twelve nations, and were therefore guilty of this series of crimes. This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also "wars in violation of international treaties, agreements, or assurances." These treaties are set out in Appendix C of the Indictment. Those of principal importance are the following.

Hague Conventions

In the 1899 Convention the signatory powers agreed: "before an appeal to arms ... to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers." A similar clause was inserted in the Convention for Pacific Settlement of International Disputes of 1907. In the accompanying Convention Relative to Opening of Hostilities, Article I contains this far more specific language:

"The Contracting Powers recognize that hostilities between them must not commence without a previous and explicit warning, in the form of either a declaration of war, giving reasons, or an ultimatum with a conditional declaration of war."
Germany was a party to these conventions.

Versailles Treaty

Breaches of certain provisions of the Versailles Treaty are also relied on by the Prosecution--not to fortify the left bank of the Rhine (Articles 42-44); to "respect strictly the independence of Austria" (Article 80); renunciation of any rights in Memel (Article 99), and in the Free City of Danzig (Article 100); the recognition of the independence of the Czechoslovak State; and the military, naval, and air clauses against German rearmament found in Part V. There is no doubt that action was taken by the German Government

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contrary to all these provisions, the details of which are set out in Appendix C. With regard to the Treaty of Versailles, the matters relied on are:

1. The violation of Articles 42 to 44 in respect of the demilitarized zone of the Rhineland;

2. The annexation of Austria on 13 March 1938, in violation of Article 80;

3. The incorporation of the district of Memel on 22 March 1939, in violation of Article 99;

4. The incorporation of the Free City of Danzig on 1 September 1939, in violation of Article 100;

5. The incorporation of the provinces of Bohemia and, Moravia on 16 March 1939, in violation of Article 81;

6. The repudiation of the military, naval, and air clauses of the Treaty, in or about March of 1935.

On 21 May 1935 Germany announced that, whilst renouncing the disarmament clauses of the Treaty, she would still respect the territorial limitations, and would comply with the Locarno Pact. (With regard to the first five breaches alleged, therefore, the Tribunal finds the allegation proved.)

Treaties of Mutual Guarantee, Arbitration, and Non-Aggression

It is unnecessary to discuss in any detail the various treaties entered into by Germany with other powers. Treaties of mutual guarantee were signed by Germany at Locarno in 1925, with Belgium, France, Great Britain, and Italy, assuring the maintenance of the territorial status quo. Arbitration treaties were also executed by Germany at Locarno, with Czechoslovakia, Belgium, and Poland.

Article I of the latter treaty is typical, providing:

"All disputes of every kind between Germany and Poland ... which it may not be possible to settle amicably by the normal methods of diplomacy, shall be submitted for decision to an arbitral tribunal...."

Conventions of arbitration and conciliation were entered into between Germany, the Netherlands, and Denmark in 1926; and between Germany and Luxembourg in 1929. Non-aggression treaties were executed by Germany with Denmark and Russia in 1939.

Kellogg-Briand Pact

The Pact of Paris was signed on 27 August 1928 by Germany, the United States, Belgium, France, Great Britain, Italy, Japan, Poland, and other countries; and subsequently by other powers. The Tribunal has made full reference to the nature of this pact and its

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legal effect in another part of this Judgment. It is therefore not necessary to discuss the matter further here, save to state that in the opinion of the Tribunal this pact was violated by Germany in all the cases of aggressive war charged in the Indictment. It is to be noted that on 26 January 1934 Germany signed a Declaration for the Maintenance of Permanent Peace with Poland, which was explicitly based on the Pact of Paris, and in which the use of force was outlawed for a period of 10 years.

The Tribunal does not find it necessary to consider any of the other treaties referred to in the Appendix, or the repeated agreements and assurances of her peaceful intentions entered into by Germany.

The Law of the Charter

The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the Tribunal.

The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.

The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the Court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law. The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement. But in view of the great importance of the questions of law involved, the Tribunal has heard full argument from the Prosecution and the Defense, and will express its view on the matter.

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

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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. This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of 27 August 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on 63 nations, including Germany, Italy, and Japan, at the outbreak of war in 1939. In the preamble, the signatories declared that they were:

"Deeply sensible of their solemn duty to promote the welfare of mankind; persuaded that the time has come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples should be perpetuated ... and all changes in their relations with one another should be sought only by pacific means ... thus uniting civilized nations of the world in a common renunciation of war as an instrument of their national policy...."
The first two articles are as follows:

"Article I: The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies

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and renounce it as an instrument of national policy in their relations to one another.

"Article II: The High Contracting Parties agree that the settlement or solution of all disputes or conflicts, of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means."

The question is, what was the legal effect, of this pact? The nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the pact, any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the pact. As Mr. Henry L. Stimson, then Secretary of State of the United States, said in 1932:

"War between nations was renounced by the signatories of the Kellogg-Briand Treaty. This means that it has become throughout practically the entire world ... an illegal thing. Hereafter, when nations engage in armed conflict, either one or both of them must be termed violators of this general treaty law .... We denounce them as law breakers."

But it is argued that the pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the law of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war.

These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since
1907 they have certainly been crimes, punishable as offenses against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military, tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention. In interpreting the words of the Pact, it must be remembered that international law is

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not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of Justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.

The view which the Tribunal takes of the true interpretation of the pact is supported by the international history which preceded it. In the year 1923 the draft of a Treaty of Mutual Assistance was sponsored by the League of Nations. In Article I the treaty declared "that aggressive war is an international crime," and that the parties would "undertake that no one of them will be guilty of its commission." The draft treaty was submitted to 29 states, about half of whom were in favor of accepting the text. The principal objection appeared to be in the difficulty of defining the acts which would constitute "aggression," rather than any doubt as to the criminality of aggressive war. The preamble to the League of Nations 1924 Protocol for the Pacific Settlement of International Disputes ("Geneva Protocol"), after "recognizing the solidarity of the members of the international community," declared that "a war of aggression constitutes a violation of this solidarity and is an international crime." It went on to declare that the contracting parties were "desirous of facilitating the complete application of the system provided in the Covenant of the League of Nations for the pacific settlement of disputes between the states and of insuring the repression of international crimes." The Protocol was recommended to the members of the League of Nations by a unanimous resolution in the assembly of the 48 members of the League. These members included Italy and Japan, but Germany was not then a member of the League. Although the Protocol was never ratified, it was signed by the leading statesmen of the world, representing the vast majority of the civilized states and peoples) and may be regarded as strong evidence of the intention to brand aggressive war as an international crime. At the meeting of the Assembly of the League of Nations on 24 September 1927, all the delegations then present (including the German, the Italian, and the Japanese) unanimously adopted a declaration concerning wars of aggression. The preamble to the declaration stated:
"The Assembly: Recognizing the solidarity which unites the community of nations; being inspired by a firm desire for

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the maintenance of general peace; being convinced that a war of aggression can never serve as a means of settling international disputes, and is in consequence an international crime...."

The unanimous resolution of 18 February 1928 of 21 American republics at the Sixth (Havana) Pan-American Conference, declared that "War of aggression constitutes an international crime against the human species." All these expressions of opinion, and others that could be cited, so solemnly made, reinforce the construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world finds its expression in the series of pacts and treaties to which the Tribunal has just referred.

It is also important to remember that Article 227 of the Treaty of Versailles provided for the constitution of a special Tribunal, composed of representatives of five of the Allied and Associated Powers which had been belligerents in the first World War opposed to Germany, to try the former German Emperor "for a supreme offense against international morality and the sanctity of treaties." The purpose of this trial was expressed to be "to vindicate the solemn obligations of international undertakings, and the validity of international morality." In Article 228 of the Treaty, the German Government expressly recognized the right of the Allied Powers "to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war."

It was submitted that international law is concerned with the actions of sovereign states and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the state. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon states has long been recognized. In the recent case of ex parte Quirin (1942-317, US-1), before the Supreme Court of the United States, persons were charged during the war with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said:

"From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights, and duties of enemy nations as well as enemy individuals."

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He went on to give a list of cases tried by the courts, where individual offenders were charged with offenses against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

The provisions of Article 228 of the Treaty of Versailles, already referred to, illustrate and enforce this view of individual responsibility. The principle of international law which, under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares:

"The official position of defendants, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment."

On the other hand the very essence of the Charter is that, individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state, if the state in authorizing action moves outside its competence under international law. It was also submitted on behalf of most of these defendants that in doing what they did they were acting under the orders of Hitler, and therefore cannot be held responsible for the acts committed by them in carrying out these orders.

The Charter specifically provides in Article 8:

"The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment."

The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.

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Scott Smith
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Post by Scott Smith » 24 Jan 2003 06:24

Basically the London Agreement was a treaty made among the Victors, or a "bill of attainder" passed to find the defeated enemy leaders guilty of warcrimes.
:)

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Roberto
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Post by Roberto » 24 Jan 2003 13:13

Scott Smith wrote:Basically the London Agreement was a treaty made among the Victors,


And so ?

Scott Smith wrote:or a "bill of attainder" passed to find the defeated enemy leaders guilty of warcrimes.


Any evidence that the guilt of the "defeated enemy leaders" was a foregone conclusion, rather than something to be established by means of a fair trial ?

Your mumbling, apart from being lame as usual, is also somewhat off a topic headed "Ex post facto law and the Nuernberg trials", by the way.

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wildboar
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It was to whitewash soviet warcrimes

Post by wildboar » 24 Jan 2003 19:19

Roberto wrote:
Scott Smith wrote:Basically the London Agreement was a treaty made among the Victors,


And so ?

Scott Smith wrote:or a "bill of attainder" passed to find the defeated enemy leaders guilty of warcrimes.


Any evidence that the guilt of the "defeated enemy leaders" was a foregone conclusion, rather than something to be established by means of a fair trial ?
Your mumbling, apart from being lame as usual, is also somewhat off a topic headed "Ex post facto law and the Nuernberg trials", by the way.


The greatest evidence for the guilt of the "defeated enemy leaders" was a foregone conclusion, rather than something to be established by means of a fair trial can be proven by shoddy trial of Admiral Karl Donitz who was imprisoned for 10 years despite fact that he was not charged with crimes against humanity .

In the Nuremberg trials Dönitz was accused of war crimes. Most sensible people agree that the German U-boats fought hard but fair considering the situation. [No one tries to deny the war crimes committed by the Germans before and during the war though]. Thus many say that Dönitz was simply punished for being too efficient at his job and his U-boats having been to much of a threat to allied shipping and the outcome of the war. Dönitz served 11 years and 6 months in prison, the last ten years in the prison Berlin-Spandau.


Source-http://www.uboat.net/men/doenitz.htm

The Following things regarding trial of Donitz would prove that
results of trial were a foregone conclusion, rather than something to be established by means of a fair trial

Only by exceptional tactics could he achieve that the testimony of the Commander-in-Chief of the American Pacific Forces, Admiral of the Fleet Chester Nimitz, was admitted in court. Nimitz stated that from the very first moment of war, American submarines conducted an unrestricted submarine warfare against Japan. With that statement by one of their own military commanders, the Allied judges could not condemn Dönitz for unlawful warfare.

But a twist had to be found, to make it possible to pass a sentence not in favor of the Großadmiral. He was then condemned because he conducted (not planned, prepared or unleashed) an offensive war and his U-boats were well prepared and trained for war. This strikingly ridiculous reasoning has never since been applied. If it had been, every officer in the whole world training and preparing his men for battle (after all that is what the job of an officer is all about) should have been convicted. He was not found guilty of conspiracy, but guilty of crimes against martial law. The crime against martial law mainly consisting of not cancelling Hitler's order concerning the unlawful shooting of captured commando soldiers after Dönitz had become Commander-in-Chief of the Navy. That no commando soldier whatsoever had been caught and shot by Navy personnel according to this order did not bother the judges.

The reasoning of the verdict against Dönitz was very much debated by British and American law experts. Professor H.A. Smith, expert of international law at London University wrote in his book 'The Law and Custom of the Sea':

"The clumsiness and absurdity of this language perhaps indicate the embarrassment which the members of the Tribunal felt in dealing with the case of Dönitz, and it is not easy to ascertain from the rest of the judgment the precise facts upon which he was condemned. "
Flottenrichter Kranzbühler remarked to the conviction of his client:

"This conviction was born out of the dilemma to take the Großadmiral into prison for political reasons. As I learned later on, the American law advisor made the proposal to the Allied control office to nullify the verdict."

So the Großadmiral was sentenced to ten years solitary confinement, even to early post war standards a rather harsh punishment. Flottenrichter Kranzbühler commented sarcastically on the sentence that this decision obviously reflected the minimum punishment to be expected from the tribunal in the case of proven innocence


Source-http://www.uboat.net/men/nuremberg3.htm

When soviet warcriminals were given immunity and those germans who were not involved in war-crimes punished on insistence of stalin and beria we can say that all that happened in nuremburg was foregone conclusion.

Remember that i am favour of trial of nazi warcriminals provided that even soviet warciminals are tried for similar kind of crimes and not granted immunity.

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Re: It was to whitewash soviet warcrimes

Post by Roberto » 24 Jan 2003 20:50

wildboar wrote:
Roberto wrote:
Scott Smith wrote:Basically the London Agreement was a treaty made among the Victors,


And so ?

Scott Smith wrote:or a "bill of attainder" passed to find the defeated enemy leaders guilty of warcrimes.


Any evidence that the guilt of the "defeated enemy leaders" was a foregone conclusion, rather than something to be established by means of a fair trial ?
Your mumbling, apart from being lame as usual, is also somewhat off a topic headed "Ex post facto law and the Nuernberg trials", by the way.


The greatest evidence for the guilt of the "defeated enemy leaders" was a foregone conclusion, rather than something to be established by means of a fair trial can be proven by shoddy trial of Admiral Karl Donitz who was imprisoned for 10 years despite fact that he was not charged with crimes against humanity .

In the Nuremberg trials Dönitz was accused of war crimes. Most sensible people agree that the German U-boats fought hard but fair considering the situation. [No one tries to deny the war crimes committed by the Germans before and during the war though]. Thus many say that Dönitz was simply punished for being too efficient at his job and his U-boats having been to much of a threat to allied shipping and the outcome of the war. Dönitz served 11 years and 6 months in prison, the last ten years in the prison Berlin-Spandau.


Source-http://www.uboat.net/men/doenitz.htm

The Following things regarding trial of Donitz would prove that
results of trial were a foregone conclusion, rather than something to be established by means of a fair trial

Only by exceptional tactics could he achieve that the testimony of the Commander-in-Chief of the American Pacific Forces, Admiral of the Fleet Chester Nimitz, was admitted in court. Nimitz stated that from the very first moment of war, American submarines conducted an unrestricted submarine warfare against Japan. With that statement by one of their own military commanders, the Allied judges could not condemn Dönitz for unlawful warfare.

But a twist had to be found, to make it possible to pass a sentence not in favor of the Großadmiral. He was then condemned because he conducted (not planned, prepared or unleashed) an offensive war and his U-boats were well prepared and trained for war. This strikingly ridiculous reasoning has never since been applied. If it had been, every officer in the whole world training and preparing his men for battle (after all that is what the job of an officer is all about) should have been convicted. He was not found guilty of conspiracy, but guilty of crimes against martial law. The crime against martial law mainly consisting of not cancelling Hitler's order concerning the unlawful shooting of captured commando soldiers after Dönitz had become Commander-in-Chief of the Navy. That no commando soldier whatsoever had been caught and shot by Navy personnel according to this order did not bother the judges.

The reasoning of the verdict against Dönitz was very much debated by British and American law experts. Professor H.A. Smith, expert of international law at London University wrote in his book 'The Law and Custom of the Sea':

"The clumsiness and absurdity of this language perhaps indicate the embarrassment which the members of the Tribunal felt in dealing with the case of Dönitz, and it is not easy to ascertain from the rest of the judgment the precise facts upon which he was condemned. "
Flottenrichter Kranzbühler remarked to the conviction of his client:

"This conviction was born out of the dilemma to take the Großadmiral into prison for political reasons. As I learned later on, the American law advisor made the proposal to the Allied control office to nullify the verdict."

So the Großadmiral was sentenced to ten years solitary confinement, even to early post war standards a rather harsh punishment. Flottenrichter Kranzbühler commented sarcastically on the sentence that this decision obviously reflected the minimum punishment to be expected from the tribunal in the case of proven innocence


Source-http://www.uboat.net/men/nuremberg3.htm

When soviet warcriminals were given immunity and those germans who were not involved in war-crimes punished on insistence of stalin and beria we can say that all that happened in nuremburg was foregone conclusion.


You have rather strange ideas, my dear friend.

Arguable though it may be whether Dönitz deserved a ten year prison sentence, this does not mean that his conviction was a foregone conclusion rather than based on the evidence in favor and against the defendant.

The judgement against Dönitz read as follows:

Doenitz is indicted on Counts One, Two and Three. In 1935 he took command of the first U-boat flotilla commissioned since 1918, became in 1936 commander of the submarine arm, was made Vice-Admiral in 1940, Admiral in 1942, and on 30th January, 1943, Commander-in-Chief of the German Navy. On 1st May, 1945, he became the Head of State, succeeding Hitler.

Crimes Against Peace
Although Doenitz built and trained the German U-boat arm, the evidence does not show he was privy to the conspiracy to wage aggressive wars or that he prepared and initiated such wars. He was a line officer performing strictly tactical duties. He was not present at the important conferences when plans for aggressive wars were announced, and there is no evidence he was informed about the decisions reached there.[my emphasis] Doenitz did, however, wage aggressive war within the meaning of that word as used by the Charter. Submarine warfare which began immediately upon the outbreak of war, was fully co-ordinated with the other branches of the Wehrmacht. It is clear that his U-boats, few in number at the time, were fully prepared to wage war.

It is true that until his appointment in January, 1943, as Commander-in-Chief he was not an "Oberbefehlshaber ". But this statement underestimates the importance of Doenitz' position. He was no mere Army or division commander. The U-boat arm was the principal part of the German fleet and Doenitz was its leader. The High Seas fleet made a few minor, if spectacular, raids during the early years of the war but the real damage to the enemy was done almost exclusively by his submarines as the millions of tons of allied and neutral shipping sunk will testify. Doenitz was solely in charge of this warfare. The Naval War Command reserved for itself only the decision as to the number of submarines in each area. In the invasion of Norway, for example, Doenitz made recommendations in October, 1939, as to submarine bases, which he claims were no more than a staff study, and in March, 1940, he made out the operational orders for the supporting U-boats, as discussed elsewhere in this Judgment.

That his importance to the German war effort was so regarded is eloquently proved by Raeder's recommendation of Doenitz as his successor and his appointment by Hitler on 30th January, 1943, as Commander-in-Chief of the Navy. Hitler too knew that submarine warfare was the essential part of Germany's naval warfare.

From January, 1943, Doenitz was consulted almost continuously by Hitler. The evidence was that they conferred on naval problems about 120 times during the course of the war.

As late as April, 1945, when he admits he knew the struggle was hopeless, Doenitz as its Commander-in-Chief urged the Navy to continue its fight. On 1st May, 1945, he became the Head of State and as such ordered the Wehrmacht to continue its war in the East, until capitulation on 9th May, 1945. Doenitz explained that his reason for these orders was to insure that the German civilian population might be evacuated and the Army might make an orderly retreat from the East.

In the view of the Tribunal, the evidence shows that Doenitz was active in waging aggressive war.

War Crimes
Doenitz is charged with waging unrestricted submarine warfare contrary to the Naval Protocol of 1936 to which Germany acceded, and which reaffirmed the rules of submarine warfare laid down in the London Naval Agreement of 1930.

The prosecution has submitted that on 3rd September, 1939, the German U-boat arm began to wage unrestricted submarine warfare upon all merchant ships, whether enemy or neutral, cynically disregarding the Protocol; ad that a calculated effort was made throughout the war to disguise this practice by making hypocritical references to international law and Supposed violations by the Allies.

Doenitz insists that at all times ,the Navy remained within the confines of international law and of the Protocol. He testified that when the war began, the guide to submarine warfare was the German Prize Ordinance taken almost literally from the Protocol, that pursuant to the German view, he ordered submarines to attack all merchant ships in convoy, and all that refused to stop or used their radio upon sighting a submarine. When his reports indicated that British merchant ships were being used to give information by wireless, were being armed and were attacking submarines on sight, he ordered his submarines on 17th October, 1939, to attack all enemy merchant ships without warning on the ground that resistance was to be expected. Orders already had been issued on 21st September, 1939, to attack all ships, including neutrals, sailing at night without lights in the English Channel.

On 24th November, 1939, the German Government issued a warning to neutral shipping that, owing to the frequent engagements taking place in the waters around the British Isles and the French Coast between U-boats and Allied merchant ships which were armed and had instructions to use those arms as well as to ram U-boats, the safety of neutral ships in those waters could no longer be taken for granted. On 1st January, 1940, the German U-boat command, acting on the instructions of Hitler, ordered U-boats to attack all Greek merchant ships in the zone surrounding the British Isles which was banned by the United States to its own ships and also merchant ships of every nationality in the limited area of the Bristol Channel. Five days later a further order was given to U-boats to " make immediately unrestricted use of weapons against all ships" in an area of the North Sea the limits of which were defined. Finally on the 18th January, 1940, U-boats were authorised to sink, without warning, all ships " in those waiters near the enemy coasts in which the use of mines can be pretended." Exceptions were to be made in the cases of United States, Italian, Japanese and Soviet ships.

Shortly after the outbreak of war the British Admiralty, in accordance with its Handbook of Instructions of 1938 to the Merchant Navy, armed its merchant vessels, in many cases convoyed them with armed escort, gave orders to send position reports upon sighting submarines, thus integrating merchant vessels into the warning network of naval intelligence. On 1st October, 1939, the British Admiralty announced British merchant ships had been ordered to ram U-boats if possible.

In the actual circumstances of this case, the Tribunal is not prepared to hold Doenitz guilty for his conduct of submarine warfare against British armed merchant ships.[my emphasis]

However, the proclamation of operational zones and the sinking of neutral merchant vessels which enter those zones presents a different question. This practice was employed in the War of 1914-18 by Germany and adopted in retaliation by Great Britain. The Washington conference of 1922, the London Naval Agreement of 1930, and the Protocol of 1936, were entered into with full knowledge that such zones had been employed in the First World War. Yet the Protocol made no exception for operational zones. The order of Doenitz to sink neutral ships without warning when found within these zones was, therefore, in the opinion of the Tribunal, violation of the Protocol.[my emphasis]

It is also asserted that the German U-boat arm not only did not carry out the warning and rescue provisions of the Protocol but that Doenitz deliberately ordered the killing of survivors of shipwrecked vessels, whether enemy or neutral. The prosecution has introduced much evidence surrounding two orders of Doenitz, War Order No. 154, issued in 1939, and the so-called " Laconia " Order of 1942. The defence argues that these orders and the evidence supporting them do not show such a policy and introduced much evidence to the contrary. The Tribunal is of the opinion that the evidence does not establish with the certainty required that Doenitz deliberately ordered the killing of shipwrecked survivors.[my emphasis] The orders were undoubtedly ambiguous and deserve the strongest censure.

The evidence further shows that the rescue provisions were not carried out and that the defendant ordered that they should not be carried out. The argument of the defence is that the security of the submarine is, as the first rule of the sea, paramount to rescue and that the development of aircraft made rescue impossible. This may be so, but the Protocol is explicit. If the commander cannot rescue, then under its terms he cannot sink a merchant vessel and should allow it to pass harmless before his periscope. The orders, then, prove Doenitz is guilty of a violation of the Protocol.[my emphasis]

In view of all the facts proved and in particular of an order of the British Admiralty announced on the 8th May, 1940, according to which all vessels should be sunk at sight in the Skagerrak, and the answers to interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that nation entered the war, the sentence of Doenitz is not assessed on the ground of his breaches of the international law of submarine warfare.[my emphasis]

Doenitz was also charged with responsibility for Hitler's Commando Order of l8th October, 1942.[my emphasis] Doenitz admitted he received and knew of the order when he was Flag Officer of U-boats, but disclaimed responsibility. He points out that the order by its express terms excluded men captured in naval warfare, that the Navy had no territorial commands on land, and that submarine commanders would never encounter commandos.

In one instance, when he was Commander-in-Chief of the Navy, in 1943, the members of an allied motor torpedo boat were captured by German Naval Forces. They were interrogated for intelligence purposes on behalf of the local admiral, and then turned over by his order to the SD and shot.[my emphasis] Doenitz said that if they were captured by the Navy their execution was a violation of the commando order, that the execution was not announced in the Wehrmacht communique, and that he was never informed of the incident. He pointed out that the admiral in question was not in his chain of command, but was subordinate to the army general in command of the Norway occupation. But Doenitz permitted the order to remain in full force when he became commander-in-chief, and to that extent he is responsible.[my emphasis]

In a conference of 11th December, 1944, Doenitz said " 12,000 concentration camp prisoners will be employed in the shipyards as additional labour." At this time Doenitz had no jurisdiction over shipyard construction, and claims that this was merely a suggestion at the meeting that the responsible officials do something about the production of ships, that he took no steps to get these workers since it was not a matter for his jurisdiction and that he does not know whether they ever were procured. He admits he knew of concentration camps. A man in his position must necessarily have known that citizens of occupied countries in large numbers were confined in the concentration camps.

In 1945, Hitler requested the opinion of Jodl and Doenitz whether the Geneva Convention should be denounced. The notes of the meeting between the two military leaders on 20th February, 1945, show that Doenitz expressed his view that the disadvantages of such an action outweighed the advantages. The summary of Doenitz's attitude shown in the notes taken by an officer, included the following sentence:

" It would be better to carry out the measures considered necessary without warning, and at all costs to save face with the outer world."
The prosecution insisted that " the measures " referred to meant the Convention should not be denounced, but should be broken at will. The defence explanation is that Hitler wanted to break the Convention for two reasons: to take away from German troops the protection of the Convention, thus preventing them from continuing to surrender in large groups to the British and Americans, and also to permit reprisals against Allied prisoners of war because of Allied bombing raids. Doenitz claims that what he meant by " measures" were disciplinary measures against German troops to prevent them from surrendering, and that his words had no reference to measures against the Allies; moreover that this was merely a suggestion, and that in any event no such measures were ever taken, either against Allies or Germans. The Tribunal, however, does not believe this explanation.
[my emphasis] The Geneva Convention was not, however, denounced by Germany. The defence has introduced several affidavits to prove that British naval prisoners of war in camps under Doenitz's jurisdiction were treated strictly according to the Convention, and the Tribunal takes this fact into consideration, regarding it as a mitigating circumstance.[my emphasis]

Conclusion
The Tribunal finds Doenitz is not guilty on Count One of the Indictment and is guilty on Counts Two and Three.


Source of quote:

http://www.yale.edu/lawweb/avalon/imt/proc/juddoeni.htm

The highlighted passages should make clear that

1. Dönitz was charged with waging aggressive war, but acquitted of the charge because there was no evidence that he was present at the planning of Nazi aggression.

2. Dönitz was found innocent, for lack of evidence, of having ordered the killing of shipwrecked survivors, but guilty of other violations of the London Naval Agreement of 1930 and the Protocol of 1936. Yet he was not sentenced on the ground of his breaches of the international law on submarine warfare because of evidence that Britain and the US had committed similar breaches.

3. Dönitz was, however, found guilty of war crimes on account of having tolerated the execution of captured Allied seamen under the Commando Order, and of having proposed to Hitler that the Geneva Convention should be broken at will.

Thus, while it is certainly arguable whether Dönitz deserved so high a sentence on account of the crimes he was proven to have committed, it cannot be said that the sentence was not based on an assessment and weighing of evidence in favor and against the defendant, or that he was convicted on account of anything other than actions or ommissions for which his guilt could be proven.

But even if you could demonstrate that the evidence against Dönitz did not support a guilty verdict on any of the charges of his indictment, this would tell us nothing about whether or not the sentences against the other defendants suffered from the same flaw. Rather than drawing a general conclusion on the basis of one case, you would have to demonstrate such shortcomings in regard to each individual judgement.

wildboar wrote:Remember that i am favour of trial of nazi warcriminals provided that even soviet warciminals are tried for similar kind of crimes and not granted immunity.


Is that supposed to mean that you would have liked to see folks like Göring, Kaltenbrunner, Keitel and Frank go scott-free because Stalin and Beria were not tried and sentenced for their crimes as well ?

If so, you're entitled to your opinion, of course, but to me that sounds like saying "We can't catch and try all murderers, drug dealers and child molesters, so let's open the prison gates and free those we have already sentenced". A rather strange approach, if you ask me.

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Post by nny » 03 Nov 2005 18:46

The Charter defines as a crime the planning or waging of war, that is, a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against twelve nations, and were therefore guilty of this series of crimes.


Just curious, would this also implicate that certain parties in the United States whom were at the time trying to persuade the Soviet Union to break its non-aggressionn pact with Japan were guilty of "the planning...of war...in violation of international treaties."?

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Post by David Thompson » 03 Nov 2005 20:00

nny -- You asked:
Just curious, would this also implicate that certain parties in the United States whom were at the time trying to persuade the Soviet Union to break its non-aggressionn pact with Japan were guilty of "the planning...of war...in violation of international treaties."?

"Break" the pact, by attacking without warning, or just renounce it? To answer this question with any accuracy, one would have to see the text of the USSR's "non-aggressionn pact with Japan" and the particulars of the US-USSR diplomatic exchanges.

If a country formally and publicly renounces a treaty or agreement, that ends the pact. Subsequent acts in contravention of the pact cannot be taken as "violations" because the agreement is no longer in effect -- the belligerent country having first given notice that it would no longer be bound by the arrangement. Most treaties and agreements provide for abrogation, which is considered to be a sovereign right. See, for example, Article 8 of the 1907 Hague IV Convention, at:

http://www.yale.edu/lawweb/avalon/lawof ... .htm#iart8

The formal and public abrogation of an agreement between nations is not a crime under international law, nor is it a crime for one country to induce another to lawfully abrogate a treaty. The problem with the Nazi aggression is that they gave assurances and reassurances that they would abide by their treaties and then treacherously broke them without any prior renunciation or warning to the countries they attacked. It is the treacherous violation of the treaty, while it is still in effect, which is considered criminal.

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Re: Ex post facto law and the Nuernberg trials

Post by nny » 04 Nov 2005 09:50

1. The violation of Articles 42 to 44 in respect of the demilitarized zone of the Rhineland;

2. The annexation of Austria on 13 March 1938, in violation of Article 80;

3. The incorporation of the district of Memel on 22 March 1939, in violation of Article 99;

4. The incorporation of the Free City of Danzig on 1 September 1939, in violation of Article 100;

5. The incorporation of the provinces of Bohemia and, Moravia on 16 March 1939, in violation of Article 81;



Thank you, since you aren't aware of the exact text of the treaty between the soviet union and japan, and how it was equally or less legally binding than the text of the treaty between germany and poland or germany and czechoslovakia I will try to search for my own information. In regards to the above mentioned crimes, which the court refutes 'were not ex post facto' crimes, but indeed crimes which were not declared criminal until 1945 (IE crimes against peace etc), what did the enforcing parties do in regards to the above incidents? From my brief readings over WWII history and the build up to the conflict I have always understood that "appeasment" was a ugly and despicable factor leading to war. What warnings were being broadcast to the Germans during the above mentioned events that woud let them know it was a crime against international treaties at the time? I don't mean to say that they had to know it was against the Versailles treaty, which was in WIDE dispute in many countries and in many countries considered unfair (which is probably the lack of outrage at these violations) but what was being broadcast to the Germans that what was being done was punishable by death?

I am not fully informed at this point, but maybe you or someone else could inform us as to the nature of the agreement of the treaty between Czechoslovakia and England / France in the period where Germany is accused of breaking international treaties? At Munich from what I understand the nature of the treaty between England / France and Czechoslovakia in regards to Germany was redefined, does this not also constitute what was defined as a crime in regards to this quote :

The problem with the Nazi aggression is that they gave assurances and reassurances that they would abide by their treaties and then treacherously broke them without any prior renunciation or warning to the countries they attacked.


Could you point me towards the text in the nuremberg trials which indicates that? From what I have read the problem was that they violated international treaties, not the assurances and reassurances that you have indicated. But along with that point - weren't assurances to Czech autonomy given pre-Nazi invasion of that country? Were the edicts of this treaty adhered to? How about in regards to Austria? What about Yalta? Did something change between the allied agreement towards Poland that made Germany's attack on Poland a crime but the handover of Poland to Stalin a non-crime? Did the Soviets somehow legally maneuver through their invasion of Poland in 1939 that made it 'legal' in the eyes of the nuremberg judges? What about their attack on Finland? Was this somehow justified in the way that the German attack on Poland was not? What about their occupation of the Baltic states in the same time period? How about their occupation of the Baltics during the trial?

Please don't get me wrong, I believe many of the Nazis deserved to be punished, and many of those whom deserved it recieved just judgment. But to veil it in a bunch of, at best victors judgement, at worst ex post facto laws was a mistake which continues to haunt WWII forums till this day.

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Post by David Thompson » 04 Nov 2005 15:36

nny -- You wrote:
(1)
Thank you, since you aren't aware of the exact text of the treaty between the soviet union and japan, and how it was equally or less legally binding than the text of the treaty between germany and poland or germany and czechoslovakia I will try to search for my own information.

We encourage readers and posters to do their own research. However, the issue you raised with your question was not whether the USSR-Japan treaty was legally binding, nor did I make that point in my reply:
nny -- You asked:
Just curious, would this also implicate that certain parties in the United States whom were at the time trying to persuade the Soviet Union to break its non-aggressionn pact with Japan were guilty of "the planning...of war...in violation of international treaties."?

"Break" the pact, by attacking without warning, or just renounce it? To answer this question with any accuracy, one would have to see the text of the USSR's "non-aggressionn pact with Japan" and the particulars of the US-USSR diplomatic exchanges.

(2)
In regards to the above mentioned crimes, which the court refutes 'were not ex post facto' crimes, but indeed crimes which were not declared criminal until 1945 (IE crimes against peace etc), what did the enforcing parties do in regards to the above incidents?

(a)
crimes which were not declared criminal until 1945 (IE crimes against peace etc)
Your formulation is polemical and inaccurate. The term "crimes against peace" is a category describing a number of violations of individual non-aggression treaties, just as "war crimes" is a category which covers a variety of specified acts prohibited by international treaties or the customs and usages of war. It is the individual violations which were criminal, and they had been criminal prior to 1945. See the discussion of the IMT at viewtopic.php?p=126257#126257
At the meeting of the Assembly of the League of Nations on 24 September 1927, all the delegations then present (including the German, the Italian, and the Japanese) unanimously adopted a declaration concerning wars of aggression. The preamble to the declaration stated:
"The Assembly: Recognizing the solidarity which unites the community of nations; being inspired by a firm desire for

464 30 Sept. 46

the maintenance of general peace; being convinced that a war of aggression can never serve as a means of settling international disputes, and is in consequence an international crime...."

and
It is also important to remember that Article 227 of the Treaty of Versailles provided for the constitution of a special Tribunal, composed of representatives of five of the Allied and Associated Powers which had been belligerents in the first World War opposed to Germany, to try the former German Emperor "for a supreme offense against international morality and the sanctity of treaties." The purpose of this trial was expressed to be "to vindicate the solemn obligations of international undertakings, and the validity of international morality." In Article 228 of the Treaty, the German Government expressly recognized the right of the Allied Powers "to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war."

(b)
what did the enforcing parties do in regards to the above incidents?

What the enforcing parties did has nothing to do with the ex post facto question, nor does it have anything to do with with their rights under international law to punish violators.

(3)
What warnings were being broadcast to the Germans during the above mentioned events that woud let them know it was a crime against international treaties at the time?

See my answer to (2)(a), above, and the discussion of the IMT at viewtopic.php?p=126257#126257
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.

Note that warnings to lawbreakers are not generally broadcast at all, anywhere. The general principle is that, since the laws have been published, the lawbreaker is on notice that his acts are criminal and no further warning is required.

(4)
I don't mean to say that they had to know it was against the Versailles treaty, which was in WIDE dispute in many countries and in many countries considered unfair (which is probably the lack of outrage at these violations) but what was being broadcast to the Germans that what was being done was punishable by death?

What IMT defendants do you contend were punished by death for crimes against peace?

(5)
At Munich from what I understand the nature of the treaty between England / France and Czechoslovakia in regards to Germany was redefined, does this not also constitute what was defined as a crime in regards to this quote :
The problem with the Nazi aggression is that they gave assurances and reassurances that they would abide by their treaties and then treacherously broke them without any prior renunciation or warning to the countries they attacked.

Could you point me towards the text in the nuremberg trials which indicates that?

See the portion of the IMT judgment dealing with violations of international treaties
http://www.yale.edu/lawweb/avalon/imt/p ... versailles
VERSAILLES TREATY
Breaches of certain provisions of the Versailles Treaty are also relied on by the Prosecution -not to fortify the left bank of the Rhine (Art. 42-44); to " respect strictly the independence of Austria " (Art. 80), renunciation of any rights in Memel (Art. 99), and the Free City of Danzig (Art. 100), the recognition of the independence of the Czecho-Slovak State; and the Military, Naval and Air Clauses against German rearmament found in Part V. There is no doubt that action was taken by the German Government contrary to all these provisions, the details of which are set out in Appendix C. With regard to the Treaty of Versailles, the matters relied on are:

1. The violation of Articles 42 to 44 in respect of the demilitarised zone of the Rhineland.
2. The annexation of Austria on the 13th March, 1938, in violation of Article 80,
3. The incorporation of the district of Memel on the 22nd March, 1939, in violation of Article 99;
4. The incorporation of the Free City of Danzig on the 1st September, 1939, in violation of Article 100;
5. The incorporation of the provinces of Bohemia and Moravia on the 16th March, 1939, in violation of Article 81;
6. The repudiation of the military naval and air clauses of the Treaty, in or about March of 1935.

On the 21st May, 1935, Germany announced that, whilst renouncing the disarmament clauses of the Treaty, she would still respect the territorial limitations, and would comply with the Locarno Pact. [With regard to the first five breaches alleged, therefore, the Tribunal finds the allegation proved.]

Note that the IMT does not treat the repudiation of the disarmament clauses of the Treaty [alleged breach number 6] as a crime.

The remainder of your post asks a series of questions, none of which involve the ex post facto issue. They appear to be premised on a "selective enforcement" theory of treaty violations. I don't mind discussing these questions, but they are off-topic here. These threads are appropriate for the discussion:

List of double standards and injustice of Nuremberg Trial
viewtopic.php?t=55352
Allied double standards in war crimes trials?
viewtopic.php?t=28026
War crimes trials - Righteous or bogus victor's justice?
viewtopic.php?t=14807
why double standards?
viewtopic.php?t=3286
A thought
viewtopic.php?t=3162
"Victor's Justice"
viewtopic.php?t=2950

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Post by nny » 12 Nov 2005 08:29

We encourage readers and posters to do their own research. However, the issue you raised with your question was not whether the USSR-Japan treaty was legally binding, nor did I make that point in my reply:


Thank you very much DT, to get back to my original point, was the USSR-Japan treaty Legally binding?

Also I would like to publicly appologise to my post which you considered : Your formulation is polemical and inaccurate


nny -- You asked:
Just curious, would this also implicate that certain parties in the United States whom were at the time trying to persuade the Soviet Union to break its non-aggressionn pact with Japan were guilty of "the planning...of war...in violation of international treaties."?


"Break" the pact, by attacking without warning, or just renounce it? To answer this question with any accuracy, one would have to see the text of the USSR's "non-aggressionn pact with Japan" and the particulars of the US-USSR diplomatic exchanges.


(2)
In regards to the above mentioned crimes, which the court refutes 'were not ex post facto' crimes, but indeed crimes which were not declared criminal until 1945 (IE crimes against peace etc), what did the enforcing parties do in regards to the above incidents?


(a)
crimes which were not declared criminal until 1945 (IE crimes against peace etc)

Your formulation is polemical and inaccurate. The term "crimes against peace" is a category describing a number of violations of individual non-aggression treaties, just as "war crimes" is a category which covers a variety of specified acts prohibited by international treaties or the customs and usages of war. It is the individual violations which were criminal, and they had been criminal prior to 1945. See the discussion of the IMT at viewtopic.php?p=126257#126257


I don't wish to ignite this post into polemics, I didn't think I was doing that with my post, I was trying to post ideas that seemed contradictory to the "Nuremberg wasn't expost facto laws". Instead of asking me 'who was convicted at nuremberg of these ex post facto laws.", perhaps you could show me trials of major figures in a countries military pre WWII that were convicted of "Crimes against peace", "Conspiracy to wage Agressive War" etc. This would surely put my mind to rest that Nuremberg was not Expost facto, nor Victors justice.

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Post by David Thompson » 12 Nov 2005 17:55

nny -- Let's go through the analysis of the ex post facto topic step by step, so that everyone can follow it.

(1) The starting point is that, from time to time, various posters here (and some authors elsewhere) have condemned the IMT proceedings because they undertook to try and punish the defendants on the basis of ex post facto laws.

(2) The term ex post facto has a meaning which was established in Anglo-Saxon law as early as the 18th century. The term describes a judicial proceeding
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

(3) The question is whether any of the IMT charges -- crimes against peace, war crimes, crimes against humanity, and conspiracy to commit one or more of those acts -- is an ex post facto law. To answer the question, we start with one of the charges and then ask:

(a) Is the underlying act(s) which the charge undertakes to punish "an action indifferent in itself"?

(b) Is the underlying act(s) "not prohibited by any law at the time it is committed"?

(c) If propositions (a) and (b) are established as true, was the underlying act(s) or thereafter "declared by the legislature [in this case, the Allied Control Council] to have been a crime, and punishment in consequence thereof, is inflicted on the person committing it"?

If the answer is all three of these questions is "yes," then we have an ex post facto law or proceeding. If the answer to any of them is "no," it isn't an ex post facto situation and the characterization is inaccurate.

(4) The argument of the IMT, and of most well-informed persons, is that the IMT charges do not fit within the definition of ex post facto law because the underlying acts were not "indifferent in themselves" and they were prohibited at the time the defendants committed them.

(5) You then asked, of the charge of crimes against peace:
The Charter defines as a crime the planning or waging of war, that is, a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against twelve nations, and were therefore guilty of this series of crimes.

Just curious, would this also implicate that certain parties in the United States whom were at the time trying to persuade the Soviet Union to break its non-aggressionn pact with Japan were guilty of "the planning...of war...in violation of international treaties."?

As you can see, your question does not address the issue of whether a crime against peace is an ex post facto proceeding, but instead suggests that others may have been guilty of the same type of behavior. When used to counter a criminal charge, this is known as the tu quoque ("you too") defense. Because neither the tu quoque defense, nor your question, address the issue at hand (whether a crime against peace is an ex post facto charge), your question is an attempt to change the subject being discussed.

The tu quoque defense, and other allegations of IMT unfairness unrelated to the ex post facto issue, are discussed in numerous other threads in the H&WC section of the forum. As you will see from reading the discussions in those threads, the tu quoque defense is not accepted in any criminal proceeding anywhere. The reason is that criminal proceedings have a narrow focus -- did the defendant commit an act which the law makes criminal, and which is within the jurisdiction of the court? The fact that others may have committed the act without having been caught or punished has no bearing on the question of whether the defendant, who was caught, committed the crime.

(6) To promote informed, fact-based discussion of issues, the research sections of the forum have various rules and policies. One of them is the "one thread, one subject" or topicality rule. This allows for an in-depth and focused discussion of single issues, conducted without diversions so that a question may be followed through to its conclusion. This rule also inhibits the practice, which is sometimes inadvertent and sometimes deliberately disruptive, of thread "hijacking." Another policy is the rule against redundant threads, which allows readers and researchers to find the information they need in one place.

To a certain extent, these rules are relaxed to promote a free discussion of the subject. The rules and policies are invoked when it becomes clear that a change of subject is taking place, or when the issue raised in one thread has already been extensively discussed in others. Thus, a somewhat off-topic question may be asked and answered in a thread, but when the off-topic question begins to turn into a discussion, it is time for it to move to a separate thread. This is what is happening here.

Once it became clear that you wanted to discuss your question ("would this also implicate that certain parties in the United States whom were at the time trying to persuade the Soviet Union to break its non-aggressionn pact with Japan were guilty of "the planning...of war...in violation of international treaties") in depth, rather than satisfy your curiosity on a single passing point ("Just curious"), I suggested that since the issues you are trying to raise are unrelated to the issue of ex post facto charges, they should be discussed on one of the other threads. So that you (and the readers) would not think I was trying to sidestep your question, I gave specific urls (at viewtopic.php?p=794611#794611 ) for the threads in which such discussions would be appropriate.

(7) The short answer to your question
Just curious, would this also implicate that certain parties in the United States whom were at the time trying to persuade the Soviet Union to break its non-aggressionn pact with Japan were guilty of "the planning...of war...in violation of international treaties."?

is that if the parties were trying to induce one country to formally renounce its treaty with another, it would not constitute a crime, because generally sovereign nations have that right under international law. If the parties were trying to induce one country to attack the other without first formally renouncing the treaty, those actions would probably be a crime against peace under the IMT definition.

Since our discussion is moving on to further subjects, unrelated to the ex post facto issue which is the topic of this thread, such as:

was the USSR-Japan treaty Legally binding?

and
Nuremberg was not Expost facto, nor Victors justice.

I will renew my suggestion to move this discussion to one of the other named threads.

(8) This request:
Instead of asking me 'who was convicted at nuremberg of these ex post facto laws.", perhaps you could show me trials of major figures in a countries military pre WWII that were convicted of "Crimes against peace", "Conspiracy to wage Agressive War" etc.

is also unrelated to the ex post facto issue, because of the three elements required to show an ex post facto proceeding (they're listed in (3), above), none would be established by an answer.

Now, let's discuss the ex post facto subject here, and if you want to raise the other issues, please do it on one of the listed threads where there are already discussions in progress.

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Re: Ex post facto law and the Nuernberg trials

Post by David Thompson » 07 Mar 2011 16:48

This digest on the defenses of nulla poena sine lege and ex post facto, as they existed in WWII war crimes trials, is from Law Reports of Trials of War Criminals vol. XV, United Nations War Crimes Commission (1949), pp. 166-170:
5. THE PLEA OF NULLUM CRIMEN SINE LEGE, NULLA POENA SINE LEGE

(i) The plea has often been put forward in war crime trials that an accused may not be punished if at the time of his acts there was no law describing his acts as crimes and laying down a punishment therefor, but this argument has usually been rejected on the ground that at the time of the alleged offence the acts of the accused did in fact constitute punishable violations of international law. Of particular interest are the statements by the Tribunals which conducted the Justice, Hostages, Flick, I.G. Farben, High Command and the Einstazgruppen Trials that Control Council Law No. 10 did not constitute ex post facto legislation and the arguments which they produced in that connection.(2) Similarly the International Military Tribunal declared that the Charter under which it operated was "an expression of international law at the time of its creation ".(3)
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(2) See Vol. IX, pp. 32-5, Vol. X, p. 43 and Vol. XII, p. 64.
(3) See British Command Paper Cmd. 6964, p. 38. Compare also Vol. X, p. 131, Vol. XII, pp. 60-2 and Vol. XIII, pp. 109-10.

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(ii) The judgment delivered in the High Command Trial also stressed that, if a rule of international law had declared a certain act to be illegal, the mere fact that, at the time of an infringement of that rule, there had been no court with jurisdiction over such an offence did not entitle an accused to object to being tried before such a court later :

" There is no doubt of the criminality of the acts with which the defendants are charged. They are based on violations of International Law well recognised and existing at the time of their commission. True no court had been set up for the trial of violations of International Law. A state having enacted a criminal law may set up one or any number of courts and vest each with jurisdiction to try an offender against its internal laws. Even after the crime is charged to have been committed we know of no principle of justice that would give the defendant a vested right to a trial only in an existing forum. In the exercise of its sovereignty the State has the right to set up a Tribunal at any time it sees fit and confer jurisdiction on it to try violators of its criminal laws. The only obligation a sovereign State owes to the violator of one of its laws is to give him a fair trial in a forum where he may have counsel to represent him—where he may produce witnesses in his behalf and where he may speak in his own defence. Similarly, a defendant charged with a violation of International Law is in no sense done an injustice if he is accorded the same rights and privileges. The defendants in this case have been accorded those rights and privileges."(1)

(iii) Perhaps of wider significance than these findings that specific texts escape the operation of the maxim under discussion is the authoritatively held opinion that the latter does not in any case apply to war crime proceedings since here international law, not municipal law, is applied. In the Peleus Trial this was recognised ; there the Judge Advocate advised the court that the maxim nulla poena sine lege and the principle that is expressed therein had nothing whatever to do with the case. It referred only to the municipal or domestic law of a particular State and the court should not be embarrassed by it in its considerations.(2)

The Tribunal which conducted the Justice Trial stated :

" Under written constitutions the ex post facto rule condemns statutes which define as criminal acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, although the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional States, could be applied to a treaty, a custom, or a common
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(1) Vol. XII, pp. 62-3.
(2) Vol. I, p. 12.

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law decision of an international tribunal, or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth."(1)

The extent to which the Tribunal did regard the rule as applicable in international law may be judged from the following words from its judgment :

" As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organised system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C.C. Law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the States at war with Germany. Not only were the defendants warned of swift retribution by the express declaration of the Allies at Moscow of 30th October, 1934. Long prior to the Second World War the principle of personal responsibility had been recognised. "(2)

The Nuremberg International Military Tribunal also regarded the rule as being a rule of justice on which reliance could not be placed by defendants who did not come to court, so to speak, " with clean hands " :

" 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 these who in defiance of treaties and assurances have attacked neighbouring 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. "(3)

This statement, together with several others, was quoted by the Tribunal acting in the Justice Trial.(4)
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(I) Vol. VI, p. 41.
(2) Ibid., pp. 43-44.
(3) British Command Paper, Cmd. 6964, p. 39. (Italics inserted.) The Tokyo International Military Tribunal declared its concurrence with this view (official transcript of Judgment, p. 26).
(4) Vol. VI, pp. 41-43. The weight of authorities could have been further augmented. Other learned authorities writing to the same effect are quoted in Vol. IX, pp. 36-9.

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The Judgment in the Krupp Trial tacitly recognised that novel situations must necessarily cause the courts to make legal decisions which in effect amount to the creation of new law. In speaking of the " defence of necessity," the Judgment said :

" As the prosecution says, most of the cases where this defence has been under consideration involved such situations as two shipwrecked persons endeavouring to support themselves on a floating object large enough to support only one ; the throwing of passengers out of an overloaded lifeboat ; or the participation in crime under the immediate and present threat of death or great bodily harm. So far as we have been able to ascertain with the limited facilities at hand, the application to a factual situation such as that presented in the Nuremberg Trials of industrialists is novel. "(1)

The Netherlands Special Court of Cassation, in the Rauter Trial, stated its view on the maxim nulla poena sine lege in these terms :

" The principle that no act is punishable except in virtue of a legal penal provision which had preceded it, has as its object the creation of a guarantee of legal security and individual liberty, which legal interests would be endangered if acts about which doubt could exist as to their deserving punishment were to be considered punishable after the event.

" This principle, however, bears no absolute character, in the sense that its operation may be affected by that of other principles with the recognition of which equally important interests of justice are concerned.

" These latter interests do not tolerate that extremely serious violations of the generally accepted principles of international law, the criminal . . . character of which was already established beyond doubt at the time they were committed, should not be considered punishable on the sole ground that a previous threat of punishment was lacking. It is for this reason that neither the London Charter of 1945 nor the Judgment of the International Military Tribunal [at Nuremberg] in the case of the major German War Criminals have accepted this plea which is contrary to the international concept of justice, and which has since been also rejected by the Netherlands legislator, as appears from Article 27 (a) of the Extraordinary Penal Law Decree. "(2)

A dissenting note was struck in the Judgment delivered in the Hostages Trial:

" It is a fundamental principle of criminal jurisprudence that one may not be charged with crime for the doing of an act which was not a crime at the time of its commission. We think it could be said with justification that Article 23 (h) of the Hague Regulations of 1907 operates as a bar to retroactive action in criminal matters. In any event, we are of the opinion that a victorious nation may not lawfully enact legislation defining a new crime and make it effective as to acts previously occurring which were not at the time unlawful. It therefore becomes the duty of a Tribunal trying a case charging a crime under the provisions of Control
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(1) Vol. X, p. 147.
(2) Vol. XIV, p. 120.

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Council Law No. 10 to determine if the acts charged were crimes at the time of their commission and that Control Council Law No. 10 f is in fact declaratory of then existing International Law. "(1)

The view of the problem most commonly adopted seems, however, to be that since the rule against the enforcement of ex post facto law is in essence a principle of justice it cannot be applied in war crime trials where the ends of justice would be violated by its application.
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(1) Vol. VIII, p. 52. On p. 54 of that Volume the Tribunal is cited as repeating its view that " one may not be charged with crime for committing an act which was not a crime at the time of its commission." This rule is upheld, however, as a principle of fundamental justice, and the Tribunal conceded that there did exist to a limited extent a possible legality for the retroactive application of new rules.

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