Judgment of the International Military Tribunal
Sept. 30 - Oct. 1, 1946
1 Trial of the Major War Criminals Before the International Military
Tribunal: Nuremberg 171, 219-223 (1947)
-Defendants argue: There can be no punishment of crime without a pre-existing law (ex post facto punishment is abhorrent to the law of civilized nations)
-No sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, no statute defined aggressive war, no penalty fixed for its commission, no court had been created to try/punish offenders.
-Court states that this is not a limitation of sovereignty, but in general a principle of justice. Attacker knew what he did was wrong, would be unjust if his wrong were to go unpunished.
-Attackers knew that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression.
Pact of Paris: binding on 63 nations, including Germany, Italy, and Japan at outbreak of war in 1939.
After signing the pact, any nation resorting to war as an instrument of national policy breaks the Pact.
Hague Convention of 1907: prohibited resort to certain methods of waging war.
-Includes inhumane treatment of prisoners, the employment of poisoned weapons, improper use of flags of truce, etc.
The law of war is found in: 1. treaties, 2. customs and practices of states which gradually obtained universal recognition, and 3. general principles of justice applied by jurists and practised by military courts.
Law is not static: continually adapted, following the needs of a changing world.
-Court states that treaties do no more than express and define for more accurate reference the principles that law which already exist.
Assembly of the League of Nations, 24 September 1927
Delegations present (including Ds) unanimously adopted a declaration concerning wars of aggression.
Pan-American (Havana) Conference:
“war of aggression constitutes an international crime against the human species.”
-D’s argue that int’l law is concerned with acts of the states, provides no punishment for individuals, and where the act is an act of a state, those who carry it out are not responsible, instead are protected under doctrine of sovereignty of the State.
Court denies: International law imposes duties and liabilities upon individuals as well as upon States.
Crimes against international law are committed by men, not by abstract entities, and international law provisions can be enforced only by punishing individuals who commit such crimes.
-Can’t shelter self behind official position in order to be freed from punishment.
The official position of Ds, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment.
HOLDINGResort to a war of aggression is not merely illegal, but is criminal
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