International and municipal law applied to war crimes
The great cleavage in the prosecution of war crimes has been between the practice of charging suspected war criminals with violation of international law and the process of prosecuting such persons under municipal law for offences defined by the ordinary criminal law. A common feature of charges presented before British military courts, convened in conformity with the Royal Warrant of 14 June 1945,3 and United States military tribunals, other than those constituted pursuant to
Control Council Law No. 10, was a simple averment that the acts alleged to have been committed by the accused were in ‘violation of the laws and usages [or customs] of war’. Although it has sometimes been said that American practice in this respect was the result of a transformation of international law into municipal law, it does not appear that the courts ofthe United States have been so sophistical as to allege that they were applying international law while covertly invoking municipal law. The Supreme Court of the United States, while disclaiming any intention to ‘make’ international law, has plainly stated that it enforces it, and statements concerning the role of statutes in making this possible have placed emphasis on the fact that the effect of Congressional enactments has been to bring violations of the laws and customs of war within the jurisdiction of certain designated courts. The manner in which jurisdiction has been conferred on military courts of the Commonwealth, including the United Kingdom, Canada, and Australia, has given even less basis for the extreme claims of the dualists. Judges Advocate and Legal Members, with rare exceptions, scrupulously dispelled any illusions created by counsel that the accused were being tried for offences defined by the municipal law of the country concerned and made clear that distinctions like that between murder and manslaughter were not relevant. Analogies offered by domestic law, however, often proved helpful in areas wherein no relevant principles of international criminal law had yet been developed.
In striking contrast to Anglo-American practice was that generally prevailing in France and some other countries. Not long after the invasion of France in 1944, a French ordinance was promulgated providing for the punishment of acts which were not justified by the laws and customs of war and constituted violations of existing French law. Certain provisions of the Code Penal and of the Code de Justice Militaire were, by the terms of the Ordinance, interpreted in such a fashion as to apply to the war crimes to which they bore some resemblance. The forced labour of civilians, the improper employment of prisoners of war, and deportation were, for example, considered as sequestration within the meaning of Articles 341-4 of the Code Penal.14 The law acted on both a territorial and a protective15 basis, for both crimes committed on French territory and crimes against French nationals and persons associated with French interests fell within the terms of the Ordinance. The effect of this legislation was to require two stages in the proof of a given ofFence, the first being a demonstration that the act was not lawful under international law and the second that the act was prohibited by the relevant provisions of the Code Penal or the Code de Justice Militaire.16 Crimes of the foregoing nature were tried before French Permanent Military Tribunals, while certain crimes not directed against French nationals or the other persons mentioned in the Ordinance of 1944 or taking place on French territory were tried by French occupation courts in Germany, acting in conformity with Control Council Law No. 10.17 On the basis that international law was not operative in Norway until incorporated into municipal law by legislative action, that country similarly provided in its law relating to war crimes18 that acts forbidden by the Norwegian criminal law which had been committed against Norwegian nationals or interests or in Norway and were in violation of the laws and customs of war could be tried according to Norwegian law. As originally applied, the Netherlands law, promulgated in the Extraordinary Penal Law Decree of 22 December 1943,19 followed the continental pattern by providing for the punishment of war crimes under local law, as supplemented by two further articles of the Decree. However, in Re Ahlbrecht,20 the Special Court of Cassation, in quashing on jurisdictional grounds the sentence       
imposed on a war criminal, held that jurisdiction attaches with respect to war crimes only to those individuals who had violated the laws and customs of war and that Dutch penal law could not be said to be applicable to all German soldiers who could not show that some positive rule of international law afforded justification for their acts. The Court also criticized the attempt which had been made in the Decree to squeeze war crimes into the categories of domestic penal law. As a result the Extraordinary Penal Law Decree was amended in 1947 to make punishable war crimes and crimes against humanity as defined by the Charter of the International Military Tribunal at Nuremberg, while requiring that the punishment imposed should not exceed that provided for the same or most closely analogous act under the law of the Netherlands.
The theory upon which war criminals were tried by France, Norway, and initially by the Netherlands for offences against municipal law was grounded on the assumption that enemy soldiers enjoy an immunity from the criminal law ofthe state against which they fight only so long as they comply with the international law of war. The burden is accordingly placed on the prosecution to prove that there has been a violation of international law such as to destroy the immunity of the accused or on the accused to assert his immunity by demonstrating that his conduct had been sanctioned by some rule ofthe law ofwar. In limiting jurisdiction to those offences committed against either nationals or the interests ofthe state concerned or on the territory of the prosecuting nation, this view tended to emphasize the protection of that state rather than of the international community. As the states which embraced this view had had an experience of enemy occupation which both Great Britain and the United States lacked, it is perhaps not unnatural that recourse should have been had to the convenient instrument of local law rather than to the long arm of the law of nations. In any case, the fundamental assumption that the soldier is exempt from enemy jurisdiction if he complies with international law is not peculiar to continental jurisprudence and should not be productive of any serious disagreement, although it is less clear on what theoretical basis it may be laid. It may be, as Professor Kelsen asserts, that the act of the soldier who conforms to the law of war and does not engage in private acts of warfare is an act of state depriving the enemy state of jurisdiction, or it may be that the humanitarian intervention of international law, which makes the soldier falling into the hands of the enemy not a criminal but a prisoner of war, subject only to prosecution for acts in violation of the law of war, produces that result in time of war.
International instruments defining war crimes and providing procedures for their punishment provide something more of a problem concerning the nature of the law applied by the tribunals thereby established. Neither the Charter of the International Military Tribunal nor that of the International Military Tribunal for the Far East specifically alluded to trial under international or municipal law, although war crimes were first defined as ‘violations of the laws or customs of war’. The Judgment of the Nuremberg Tribunal has been variously interpreted. But the Tribunal, by its frequent references to international law, to the treaties governing the conduct of war, to the amenability of individuals to international law, and to the responsibility of individuals under that law, seems rather to have indicated that the substantive law which it applied was international law and not a new internationally enacted system of municipal law. It pointed out that the Charter is ‘the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law’. In the so-called ‘Nuremberg Subsequent Proceedings’, the United States Military Tribunals established under Control Council Law No. 10 generally asserted that that law, which established their authority, was merely declaratory of customary international law, although the Tribunal in the Justice Trial found it necessary to add, perhaps unnecessarily, that in so far as Law No. 10 might go beyond established principles of international law, authority to enact it was to be found in the sovereign legislative power assumed after the unconditional surrender of Germany. The indictments against persons tried by these courts were drawn in comprehensive fashion and alleged violations of the laws and customs of war, of treaties governing war, of ‘the general principles of criminal law as derived from the criminal laws of all civilised nations’, and of the internal penal law of the countries where the offences were committed. Despite the sweeping language of the indictments, the law applied by these tribunals was generally law which was, or purported to be, international law, and it was not necessary to allude to specific provisions of the criminal codes of the countries concerned.
In view of what appears to be the preponderant view in recent prosecutions of war criminals, i.e. that international law is directly applicable to such persons, the position adopted by some of the states represented at the Geneva Conference of 1949 was somewhat startling. Efforts to declare certain acts to be war crimes were strenuously resisted, not only by the delegates of European countries, as might be expected, but by those of the United States and Great Britain as well.33 The insistence that what were finally referred to as ‘grave breaches’34 of the Conventions would not become crimes within the countries concerned until implementing legislation had been enacted is somewhat difficult to reconcile with the accepted Anglo-American view of the nature of war crimes, especially since most of the acts referred to as ‘grave breaches’ had been punished as war crimes under international law by Commonwealth and American tribunals during the preceding four years. An opportunity to take a forthright stand on the primacy of international law was thus lost.
-  20 December 1945, Official Gazette of the Control Council for Germany, No. 22, p. 22.
-  In re Schonfeld et Al. (1946), War Crimes Reports, vol. xi (1949), p. 64, and In re Killinger et Al.(1945), ibid., vol. iii (1948), p. 67, are representative of British practice; for charges presented toAmerican tribunals see, for example, United States v. Eisentrager et Al. (1947), ibid., vol. xiv (1949),p. 8, United States v. Sawada etAl. (1946), ibid., vol. v (1948), p. 1.
-  Schwarzenberger, ‘The Problem of an International Criminal Law’, in Current Legal Problems, 3 (1950), p. 270.
-  ‘We do not make the laws of war but we respect them so far as they do not conflict with thecommands of Congress or the Constitution’ (In re Yamashita (1946), 327 U.S. 1, 16; see also Ex parteQuirin etAl. (1942), 317 U.S. 1, 27).
-  Ex parte Quirin et Al. (1942), 317 U.S. 1, 26, 35; In re Yamashita (1946), 327 U.S. 1, 7.
-  Act respecting War Crimes (10 Geo. VI, c. 73): see In re Meyer (1945), War Crimes Reports,vol. iv (1948), p. 97, for a typical charge.
-  War Crimes Act, 1945 (Act No. 48, 1945); Regulations under the War Crimes Act, 1945(S.R. No. 164 of 1945 and S.R. No. 30 of1946).
-  In re Eck et Al. (1945), War Crimes Reports, vol. i (1947), p. 1; In re Heyer et Al. (1945), ibid.,p. 88; cf. the Australian cases of In reKudo etAl. (1946) and In re Yamasaki (1946), referred to in ibid.,vol. xv (1949), p. 8.
-  In re Killinger et Al. (British Military Court, Wuppertal, 1945), War Crimes Reports, vol. iii(1948), p. 67; In re Heering (British Military Court, Hanover, 1946), ibid. vol. xi (1949), p. 79; UnitedStates v. Back (1945), ibid., vol. iii (1948), p. 60.
-  Ordonnance du 28 aout relative a la repression des crimes de guerre, Journal Officiel de laRepublique Frangaise, 30 August 1944, p. 780.
-  Article 2, paras. 5 and 6.
-  In the sense of protection of the security of the state, as envisaged by Article 7, Draft Conventionon Jurisdiction with Respect to Crime of the Harvard Research, in American Journal of InternationalLaw, 29 (1935), Supp., p. 439.
-  Representative instances are: In re Bommer et Al. (1947), War Crimes Reports, vol. ix (1949),p. 62; In re Baus (1947), ibid., p. 68; In re Szabados (1946), ibid., p. 59; In re Holstein et Al. (1947),ibid., vol. viii (1949), p. 22. In Re Wagner et Al. (1946), ibid., vol. iii (1948), p. 23, one of the issuespresented to the Court of Cassation was whether the failure to put to the military judges specificquestions concerning the legality or illegality under international law ofthe acts charged had resulted ina failure to resolve an essential issue in the proceedings. The Court held that separate questions as tothis matter were not necessary, as they were inherent in questions concerning the guilt of the accused.Apparently in Re Lex (1946), ibid., vol. vii (1948), p. 74, the accused, a German civilian charged withinstigating the deportation of French families and the looting of their property, was convicted of theoffence of ‘atteinte a la surete exterieure de l’Etat’ under Article 79 of the Code Penal without referenceto the 1944 Ordinance and thus presumably under the ordinary French municipal law alone.
-  See War Crimes Reports, vol. iii (1948), p. 100. French Military Government Courts hadjurisdiction over the offences defined in Control Council Law No. 10.
-  Law of 13 December 1946 (No. 14) on the Punishment of Foreign War Criminals, War CrimesReports, vol. iii (1948), p. 81.
-  Ibid., vol. xi (1949), p. 86. In the Netherlands East Indies, however, war crimes were tried undera decree which set forth an exhaustive listing of war crimes under international law (ibid., p. 91).
-  Na-Oorlogsche Rechtspraak, Tribunalen inNederland, 3rd Year, No. 747; see Grotius InternationalYearbook, 1940—1946 (1948), pp. 54-56. The Special Court of Cassation stated that international lawshould not be looked upon as a justification for the acts of a state which had itself disregardedinternational law in occupying the Netherlands. This view appears to bear out the thesis that thelaw of war is ‘prohibitive law’.
-  See War Crimes Reports, vol. xi (1949), p. 90.
-  Merle, LeProces de Nuremberget le chatimentdes criminels deguerre (1949), p. 145. A similar viewis held by a number of American writers, e.g. Manner, ‘The Legal Nature and Punishment of CriminalActs ofViolence Contrary to the Laws ofWar’, in American Journal of International Law, 37 (1943),p. 407; Garner, ‘Punishment of Offenders against the Laws and Customs ofWar’, ibid. 14 (1920),p. 70. But cf. the interesting case of In re Motosuke (1948), War Crimes Reports, vol. xiii (1949), p. 126,in which a Netherlands East Indies court found a Japanese officer to have killed a member of theJapanese armed forces without sanction in Japanese military law and therefore to have been guilty of acommon law offence against the laws of the Netherlands East Indies and not of a war crime.
-  Freelandv. Williams (1889), 131 U.S. 405. Coleman v. Tennessee (1878), 97 U.S. 509, and Dow v.Johnson (1879), 100 U.S. 158, imply that a soldier of the occupying army is subject neither to the lawnor to the jurisdiction of the courts of the occupied area, whether or not the soldier’s act was inconformity with the law ofwar. See Glueck, War Criminals, Their Prosecution and Punishment (1944),p. 43, and cases cited therein, and Finch, ‘Jurisdiction of Local Courts to try Enemy Persons for WarCrimes’, in American Journal of International Law, 14 (1920), p. 218.
-  ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’, inInternational Law Quarterly, 1 (1947), pp. 160—1; ‘Collective and Individual Responsibility for Acts ofState in International Law’, in Jewish Yearbook of International Law, 1 (1948), pp. 230—1.
-  Cmd. 6668.
-  Special Proclamation of the Supreme Commander for the Allied Powers, 19 January 1946.
-  Article 6 (b) of the Nuremberg Charter; Article 5 (b) of the Tokyo Charter.
-  Judgment of the International Military Tribunal for the Trial of German Major War Criminals,Cmd. 6967 (1946), especially at pp. 38—42.
-  Cmd. 6964, at p. 38.
-  United States v. Von Leeb et Al. (1948), Trials ofWar Criminals, vol. xi (1950), p. 476; WarCrimes Reports, vol. xii (1949), p. 61; United States v. Krupp et Al. (1948), Trials ofWar Criminals,vol. ix (1950), p. 1331, War Crimes Reports, vol. x (1949), p. 131; United States v. Flick et Al. (1947),ibid., vol. ix (1949), p. 16; see Lord Wright, ‘War Crimes under International Law’, in Law QuarterlyReview, 62 (1946), p. 41.
-  United States v. Altstoetter et Al. (1947), Trials ofWar Criminals, vol. iii (1951), p. 966, WarCrimes Reports, vol. vi (1948), p. 34.
-  A typical indictment stated: ‘The said war crimes constitute violations of international conventions, particularly of Articles 4, 5, 6, 7, and 46 of the Hague Regulations, 1907, and of Articles 2, 3,