Law Reports Of Trials Of War Criminals Vol 1

This 15-volume series summarizes more important proceedings taken against individuals accused of war crimes during World War II, excluding the major war criminals tried by the Nuremberg and Tokyo International Military Tribunals. These representative were selected for this series based on the major points of municipal and international law that were raised and settled during the trials as well as the potential for the greatest legal interest. For example, Volume 4 includes the trial of General Tomoyuki Yamashita (PDF). Each volume begins with a unique introduction by the Right Honorable Lord Wright of Durley, Chairman of the United Nations War Crimes Commission. I have been asked to contribute a Foreword to the first volume of Law Reports on Trials of War Crimes which are being selected and prepared by the United Nations War Crimes Commission, of which I am Chairman. The Commission in producing and publishing these law reports is fulfilling the duty assigned to it. The Commission is primarily concerned with criminals who fall within the first category under the Moscow Declaration of October 30th, 1943. This category may generally be defined to be that embracing particular individuals who have committed offences against the laws of war and whose offences can be ascribed to a particular location. These are sometimes called "minor war criminals," but that is a misleading term because of the enormity and scope of the crimes committed, which really include all war crimes except those that were charged at the Nuremberg and Tokyo trials and are described as crimes which have no particular geographical location. The Declaration distinguished these two categories for the purpose of providing how they were to be punished. The latter, the" major war criminals," were to be punished by joint decision of the governments of the Allies and the joint decision has resulted in the Nuremberg trial and the Tokyo trial. The former category were dealt with in the Moscow Declaration by providing that Germans who took part in the various atrocities referred' to were to be brought back to the scene of their crimes and tried on the spot by the peoples whom they have outraged. The Commission has not been concerned directly, though it has been concerned indirectly, in the crimes which were charged in the proceedings at Nuremberg and Tokyo, but it has had very close relations with the cases of what have been called the" minor criminals." The trials of that class of offenders constitute the subject of these reports. In the present volume, which was sent to press before the judgment of the International Military Tribunal at Nuremberg was promulgated, there are reports of six cases tried by British Military Courts and three cases tried by United States Military Commissions. I shall not attempt to deal with the details of these cases, which included offences against prisoners of war, slaughter of mariners attempting to escape from a torpedoed ship, poison gas used on inmates of concentration camps, killing on a large scale by poison administered by medical personnel in a sanatorium, and similar crimes. It will be observed that in all these cases prosecutions were brought and conducted by the military authorities. The courts were constituted from serving officers of the two armies respectively with the exception of two instances, the Peleus and the Almelo cases, where the military courts were mixed in their composition. In the Peleus case the tribunal included Greek as well as British officers, and in the Almelo case Dutch as well as British officers. Most of these cases are dealing with offences committed against members of the military forces of the respective nation. In later volumes it is hoped to include reports of the trials of Germans accused of crimes in concentration camps. It was not found possible for technical reason to include in the present volume reports of French cases, but that defect will, it is hoped, be remedied in the following volumes.

This 15-volume series summarizes the course of the more important proceedings taken against individuals accused of war crimes during World War II, excluding the major war criminals tried by the Nuremberg and Tokyo International Military Tribunals. These representative trials of war criminals were selected for this series based on the major points of municipal and international law that were raised and settled during the trials as well as the potential for the greatest legal interest. For example, Volume 4 includes the trial of General Tomoyuki Yamashita (PDF). Each volume begins with a unique introduction by the Right Honorable Lord Wright of Durley, Chairman of the United Nations War Crimes Commission. At the end of World War I, as everybody knows, there were admirable declarations that war crimes would be punished, and lists of criminals were prepared by a fact-finding committee, but nothing practical was effected towards identifying, tracing and apprehending accused individuals or puttingthem on trial, though an excellent report, with lists of war crimes, was prepared by the Commission on Responsibilities already referred to. The whole thing was abandoned after a few unsatisfactory trials, though at least one useful judgment was produced by the Leipzig Court in the Llandovery Castle case, and though the Leipzig cases (as they have been called) showedhow hopeless it was to expect justice in these circumstances from the courts of the Reich. Hence it came about that the victorious Allies after WorldWar II decided to try war criminals themselves, adopting either the system of the military courts or that of the national courts. They refused to think that Allied courts could not be impartial. Their decision has been amply justified by the trials that have been held. The International MilitaryTribunals, held one at Nuremberg and the other at Tokyo, stand as convincing proofs that impartial justice can in this way be administered. Thishas also been shown by the military and the national courts which have held hundreds of trials, a selection from which is contained in these volumes.The presence of neutral judges has been shown to be not essential to maintain a high standard of impartiality and this was in fact fortunate under thecircumstances, because neutral judges were in fact not available. Nor had the accused any legal right to object to being tried by such courts; all the accused were entitled to was a fair trial and that they got. Also, as I have stated, the types of courts employed were those traditionally recognised by International Law as competent for war crime trials.

The trials reported in this volume have the common feature that they deal with offences against prisoners of war. Offences of that class may seem to involve a departure from the old, simple idea of war crimes, that is, crImes committed in the actual operations of war, battle invasion or the like, but since the Geneva Conventions the rights of prisoners of war to fair treatment and the obligations of the belligerent forces to give effect to these rights have been established, and they are indeed an important branch of the law relating to crimes, and crimes which obviously fall within the category of war crimes. Thus, the extension of the scope of the trials which have been held to punish such crimes has followed inevitably. The trials included here will show how varied may be the application of the Geneva Conventions.The most striking perhaps historically is the case of the Stalag Luft III, which was a plain case of deliberate murder committed against prisoners of war. They were all airmen who had been captured while taking part in air attacks either against Germany or the occupied countries. They had not committed any offence against the rules of war. Their operations in the air had been in accordance with the recognised rules in that type of warfare. They had, however, made a concerted, determined and ingenious effort to escape from the camp. The report states that of the 80 officers who escaped 50 were captured and shot by the Gestapo, and it is with the fate of those 50 that the case deals. The esprit de corps of the British and the German air forces· worked so effectively that the Germany military were shocked by the audaciously unjustified murder of those brave and honourable opponents.

This volume contains a very important judgment, namely that of the United States Military Tribunal at Nuremberg on the trial of General List and eleven others, known as. the Hostages Trial. There are also Reports of two trials held before British Courts,one of Generals von Mackensen and Maelzer, and the other of Field Marshal Kesselring. These three cases are closely allied in their subject matter because all three severally raised the problem whether the practice of killing hostages (or reprisal victims) is a war crime. It has until recently been so regarded. The practice was followed by thePrussians in the Franco-Prussian War, and by the Germans in the war of 1914-18. In both instances it was resorted to in a considerable number of cases, but in the war of 1939-45 it was followed on an unprecedented scale. It is obviously on the face of it an atrocious practice because it indiscriminately punishes men who are completely guiltless of any war crime. The practice as followed in World Wars I and II involves collective executions carried out on a great scale and almost as a routine operation. The numbers Of innocent non-combatants who have been killed in this way cannot be computed but they must· run into tens or hundreds of thousands. Lauterpacht well refers to the practice as a terrible practice. The question here has reference to the killing of. hostages, and it was submitted by the Prosecution in the trial of List that that was a war crime. The Prosecution further submitted that if hostages were taken they were entitled to at least the favourable treatment accorded to prisoners of war under the Geneva Conventions. The Tribunal, however, in the List case, has held that the killing of hostages was not in itself and in the abstract contrary to the International Law of war. It is true that the Tribunal imported a number of conditions but these conditions are not based on any recognised practice or any recognised rules, and if I may say so with respect, the defining of conditions of that character, if the legality of killing hostages were conceded, would be a matter of very great moment which would involve careful discussion on the expert evidence of military men, of diplomatists and of statesmen.

The Reports contained in this Volume cover an extensive and diversified area. The main portion of these trials deals with crimes against property, which will also be more fully dealt with in the next volume of this series, and most of what I have to say on these questions I shall therefore reserve for the Foreword to Volume X.Crimes against property are sometimes almost indistinguishable from crimes against persons, as, for instance, in those cases where villages are destroyed and the inhabitants are turned adrift, perhaps in very inclement conditions of weather, and deprived of their homes. As notorious instances of such cases I may recall the destruction of Lidice and the murder of its inhabitants, and the similar case of Oradour-sur-Glane. The two aspects in these crimes, however, can be distinguished. Systematic pillaging and excessive contributions from a country which is being over-run or which is already occupied, also present this double aspect. These classes of war crimes form an important subject in the well-known Regulations attached to the Hague Convention No. IV of 1907 which are quoted in this volume. They are fully set out, and discussed up to a certain point, by Mr. Brand in this volume, and 'what he says there is supplemented and developed in Volume X, which comprises Reports on the I. G. Farben and Krupp trials held before United States Military Tribunals in Nuremberg.Volume IX, however, also illustrates further the important question of crimes against persons as illustrated by the offences in regard to the enslavement and deportation of civilians to slave labour, and the employment of prisoners of war in work having a direct connection with military operations. This question received treatment in Volume VII, in the notes to the Milch Trial. The spoliation of occupied territory· which was undoubtedly carried on to a great extent in World War II receives some illustration and discussion in this volume, but for a fuller discussion the reader is referred to Volume X.A feature of great interest in the present volume is the treatment of what may be called economic exploitation, and reference may in particular be made to the grounds on which Flick was held responsible in respect of the Rombach Plant. His responsibility was based upon his occupation and use of private property without the free consent of the rightful owner, irrespective of the use to which he put the property and the condition in which he left it.The Flick case also gives an excellent illustration of the scope of crimes against humanity, and the discussion in the Notes attached to the Judgment is of great value. It is particularly significant as indicating the limitations which have been introduced in connection with those crimes.

This Volume contains a number of important cases which illustrate the application of'the law of war crimes to different circumstances and acts. It also illustrates very usefully how the international law of war and war crimes is dealt with 'by military courts on the one hand, and by the national courts on the other. The results in either case ought to be substantially the same because the ultimate decision must depend. on rules of international law. In the national court the national criminal law primarily applies, but it is necessary to modify it in order to give effect to the appropriate rules of international law. To a large extent this rule is in favour of the accused men. Generally speaking, what they were found guilty of doing would be an obvious and simple crime according to the national law of peace in practically every civilized state. But the accused are entitled to rely on whatever defences they can extract from the international law of war. Thus, what would be murder in time of peace may be justified as done in accordance with the laws of war. If, however, on a closer examination it appears that the laws of war do not afford justification for what is primarily murder under the national law of peace, then the charge of murder remains unqualified and the defence fails. Itis for the reason that this important rule is illustrated by the cases in this volume, that I think they require a close study and attention. Many of the offences were committed against non-combatants in occupied territories so that they were crimes within the scope of the IVth Hague Convention of 1907. Where, however, the offences were committed not in occupied territory but in Germany, the victims had been brought into Germany from their own countries which were at the time under German occupation, and in that way the principle of the Hague Convention is satisfied even apart from the general scope given by the famous clause in the Preamble which makes reference to the laws of humanity. The very significant case concerning the Velpke Children's Home has special peculiarities ofits own, because the children who were barbarously dealt with were actually born in Germany, their mothers having been deported contrary to international law from an Allied country, namely Poland, while that country was occupied by the Nazis. The main topics dealt with in the Reports in this , olume can be usefully classified under three heads: deportation and slave labour; medical experiments on Allied prisoners of war and unwilling non-combatants; and causing death by criminal negligence of the children in the Velpke Children's Home case.

This 15-volume series summarizes the course of the more important proceedings taken against individuals accused of war crimes during World War II, excluding the major war criminals tried by the Nuremberg and Tokyo International Military Tribunals. These representative trials of war criminals were selected for this series based on the major points of municipal and international law that were raised and settled during the trials as well as the potential for the greatest legal interest. For example, Volume 4 includes the trial of General Tomoyuki Yamashita (PDF). Each volume begins with a unique introduction by the Right Honorable Lord Wright of Durley, Chairman of the United Nations War Crimes Commission. The most noteworthy case reported in this Volume is that of General Tomoyuki Yamashita who was tried and condemned by a United States Military Commission in Manila. His sentence was confirmed. The matter came before the Supreme Court of the United States on a petition for a writ of habeas corpus. The petition was rejected by that Court by a majority of the judges. The Court was not empowered to deal with the issues of fact which had been decided by the Court in Manila. The questions which came before the Supreme Court were questions of jurisdiction or competency. The majority, speaking by that great Judge, Stone, Chief Justice, whose death has deprived the Court of one of its greatest ornaments since its formation, held that the Military Commission was legally constituted, and that the charges exhibited in the Petition were within its competence because they were charges of violations of the law of war. The two dissenting judges founded their dissents upon certain technical question, no doubt of a basic character, but not calling for special notice here in this brief introduction which only deals with International Law. The observations of the Chief Justice (in which the majority of the judges agreed) are of leading importance for students of the law of war.