The Justice Case” (Case 3), United States v. Josef Altstoetter et al

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Citation. Law No. 10. 1946-1949, Vol. III (1951). Opinion and Judgment, at 954-84

Brief Fact Summary. Crimes against humanity, conspiracy to commit war crimes and “judicial murder” were crimes the Judges (D) who were part of the Nazi regime were charged with, on the premise that they had destroyed law and justice in Germany and then utilized the emptied forms of legal process for persecution, enslavement and extermination on a large scale.

Synopsis of Rule of Law. (1) The Control Council, as an international body temporarily governing Germany is the source in which the military tribunal draws its power and jurisdiction to punish violations of international law.
(2) Violations of laws and customs of war are not the only offenses recognized by International law.
(3) The principle nullum crimen sine lege cannot be used as a defense to international crimes since the ex post facto rule is not applicable to international law.

Facts. A series of trial took place at Nuremberg after the end of the Second World War and some other locations in Germany under the Control Council Law No. 10 (C.C. Law 10). The Control Council consist of U.S. (P), U.S.S.R (P), France (P) and England (P) representatives respectively and it also governed occupied Germany. Trials were held before U.S. judges in U.S. occupied zones. In order to try what was called the “Justice Case” where the Defendants (D) were judges in the Nazi regime, the U.S. Military Government for Germany created the Military Tribunal III in 1947.
Among the charges brought against the defendants were “judicial murder and other atrocities which they committed by destroying law and justice in Germany, utilization of empty forms of legal process for the persecution, enslavement and extermination on a large scale”, conspiracy to commit war crimes against civilians in German-occupied territories (including German civilians and nationals), against soldiers of countries at war with Germany and crimes against humanity. Some of the accused were charged as being members of the SS, SD and Nazi Party leadership corps, all of which had been declared criminal organizations. Although all the defendants pleaded not guilty, the Military Tribunal III gave its judgment.

Issue. (1) Is the Control Council the source of the military tribunal power and jurisdiction to punish violations of international law?
(2) Are violations of laws and customs the only offenses recognized by international law?
(3) Can the principle of nullum crimen sine lege be used as a defense to international crimes since the ex post facto rule is not applicable to international law?

Held. Holding and decision:  (1) Yes. The Control Council, as an international body temporarily governing Germany is the source in which the military tribunal draws its power and jurisdiction to punish violations of international law. A state with a functioning government have always been recognized take decision to punish war crimes of perpetrators that come within the state’s jurisdiction, but at the state’s discretion, but this is not the case in this situation because there was no functioning German government. This implies that the punishment of violations of international law in Germany is not dependent on the enactment of rules of substantive criminal law that are applicable only in Germany. But the military tribunal has the power to punish the violations of the common international law because Germany is under the control of the Control Council which is an international body that has assumed and exercised the power to establish judicial machinery for the punishment of such violations.  If the state had a functioning national government that could exercise its sovereignty, such an international body would not be able to exercise such power without the consent of the state.

Discussion. Ex post facto prosecutions (nullm crimen sine lege; nulla poena sine lege) are prohibited by a basic precept of criminal law. Most of the crimes against humanity, such as genocide and mass killing, have already been determined as crimes under every legal system. This therefore implies that it would be just under the ex post facto principles to prosecute and punish perpetrators of these crimes, as these crimes have merely been “internationalized” by the IMT Charter.