The Bases of the International Military Tribunal’s Authority

THE BASES OF THE INTERNATIONAL MILITARY TRIBUNAL'S AUTHORITY T HE judgment of the twenty-two defendants at Nuremberg by an international tribunal definitely marks a milestone in the history of international law. The importance of the trial arises from the fact that it established several juridical precedents which have occasioned as many controversies among jurists and moralists concerning their legality and morality. The conviction of the majority of the defendants on the evidence of captured recordings, films, and documents leaves no doubt that the Germans were guilty of atrocious war crimes. Doubts have arisen, however, as to whether or not an international tribunal had the right to try and to sentence the statesmen, generals, and economic leaders of the German nation. Grave questions have been raised regarding the origin of the tribunal's right. Where did the International Military Tribunal get its authority? Under what law were the defendants punished? Was the law created by the tribunal's charter or did it exist prior to its institution? I£ the charter was merely declaratory of existing law, what is the nature and binding force of that law? The importance of the problem is gleaned from the many repetitions which have been made in defense of the trial and the many attacks leveled against it by members of the legal profession. Defenders of the tribunal's charter maintain that the solemn agreements and pacts made since World War I reestablished principles of international law which had been forsaken by the jurists of the nineteenth and early twentieth centuries. This fact was indicated by the Allies, they maintain, in the numerous declarations that were issued periodically throughout the war in which they manifested their intention of punishing those persons who were responsible for the com197 198 JOHN P. KENNY mission of war crimes. Opponents of the charter claim that it represents an abandonment of existing international law and the rejection of a universally recognized principle of modern crimmallaw, namely, that there can be no punishment without a law that already existed when the act was committed. The defense attorneys' motion to dismiss the indictment, made on the opening day of the trial stressed this point. The defense contended that count two of the indictment, the crime of planning and initiating wars of aggression, had " no legal basis in international law but is a procedure based on a new penal law; a penal law created only after the act."1 Many American jurists have expressed themselves as being of the same opinion. On the .other hand, there are some whose opposition is based on the fact that an international criminal law has never existed. The following statement was made by Frederic R. Coudert, president of the American Society of International Law, two months before the promulgation of the International Military Tribunal's Charter: Endless discussion of a learned, subtle and rather Byzantine character has been carried on by those interested in international law as to what law or laws could be applied to such crimes. On this subject there has been little general agreement, as there is no recognized general international criminal law. International law deals with the relations between nations and has little direct relationship to individuals. Nations have, however, through usage and convention , recognized some general rules applicable to warfare as it is supposed to be waged among civilized people. The United States has such a code. . . . There are also the rules agreed upon in The Hague Convention, but these, if applicable, do not meet many of the worst atrocities.2 Thus even among the members of the legal profession there is found a diversity of opinion regarding the legality of prosecuting individuals before an international tribunal for the commission of war crimes. Briefly, these opinions concerning the 1 " Text of the Defense Motion to Dismiss the Indictment against the German War Criminals," New York Times, November 22, 1945, p. 8. a Frederic R. Coudert, "Letters to the Editor," New York Times, June 8, 1945, Sec. IV, p. 8. INTERNATIONAL MILITARY TRIBUNAL'S AUTHORITY 199 tribunal's authority can be summarized as follows: (a) the charter reestablished principles of international law; (b) the charter abandoned fundamental principles of international law; (c...