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.
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.