After Germany’s defeat in WWII, the Nuremberg and later trials were organized primarily for political purposes rather than to dispense impartial justice. Wears War regularly brings to you quotes from the many fine men and women who were openly appalled by the trials. All of these people were highly respected and prominent in their field, at least until they spoke out against the trials.
Hon. K. Subba Rao, LL.D.
Judge, Madras High Court, 1948-1954Chief Justice, Andhra High Court, 1954-1956, and Andhra Pradesh High Court, 1956-1958Justice, Supreme Court of India, 1958-1967Chief Justice of India, 1966-1967
[Minor formatting edits have been made for emphasis and clarity.]
“My brief comments on the subject relate to two aspects:
(1) Whether the convictions of the accused by the International Tribunal at Nuremberg were supported by international law;
(2) Whether the conviction of the Grand Admiral Karl Doenitz of the German Navy was valid.
Article 6 of the Charter establishing the international military tribunal for the trial of the war criminals authorized the tribunal to try three categories of crimes, namely:
(1) Crimes against peace;
(2) War crimes (crimes against the rules and customs of war) and
(3) Crimes against humanity.
The charges against the accused before the said tribunal were that they in pursuance of their common plan conspired and waged wars of aggression in violation of international treaties, agreements or assurances. The objects of the conspiracy were (1) to abrogate and overthrow the treaty of Versailles and its restrictions on military re-armaments; (2) to acquire territories lost by Germany in the First World War; and (3) to acquire still further territories in continental Europe at the expense of neighboring and other countries. The defendants raised the following points in their defense: (1) There could be no punishment for a crime without a pre-existing law, nullum crimen sine lege, nulla poena sine lege; (2) ex post facto punishment is opposed by the law of all civilized nations; (3) no sovereign power had made aggressive wars a crime at the time of the commission of the alleged criminal acts; (4) aggressive war had not been defined by any law, nor any penalty prescribed, nor any court created for the trial and punishment of offenders accused of such crimes; (5) they were only acting under the orders of Hitler and they were bound to carry out such orders.
The Tribunal rejected the said pleas. It held that the first maxim was only a principle of justice and was not a limitation of sovereignty, that the defendants knew the treaties signed by Germany outlawing recourse to war, particularly that embodied in the pact of Paris, that as Germany in resorting to war broke the said pact, and that as the said pact was legal in international law, those who were parties to the plan to wage the said war had committed an international crime.
In my view the judgement is assailable. It was mainly based on the pact of Paris. But a close scrutiny of that pact discloses that it was merely a record of a common understanding between the signatories and that it did not constitute the declaration of war as an international crime so as to make each individual participant in the war liable for an international crime. Indeed the pact was not acted upon in the context of war waged between some of the signatories and therefore remained a dead letter. If that pact had not the force of international law, as I show it had not, the whole conviction based upon the breach of that law was bad.
The aforesaid two fundamental principles of criminal jurisprudence that there can be no punishment of a crime without a pre-existing law and that ex post facto punishment was opposed to the law of all civilized nations are as much the integral parts of international law as they are of national law. As there was no law at the time the alleged acts were committed declaring the waging of war or a conspiracy to wage a war as war crimes, the said principles of justice would preclude the Tribunal from relying upon the charter for convicting the defendants for war crimes.
That apart, it is not possible to hold definitely who was the aggressor in the conflict between the two groups of countries. In the context of a war the concept of aggressor may only mean the leader of a losing party. If the Allies lost the war, Germany could have with equal plausibility named the Allies as aggressors. In the olden days the conqueror slaughtered the leaders of a defeated country and pillaged and plundered the properties of the people of the said country. The Nuremberg trial is only an institutionalization of the said act of vindictive retaliation.The aggressors destroyed the defeated leaders through the legal process of a Tribunal in disregard of all principles of natural justice. The Judges were nominated by the victorious countries. The defeated leaders were convicted for offences that were not in existence at the time they waged the war. The whole trial was one sided and contrary to principles of natural justice.
Be that as it may, I am of the view that Grand Admiral Karl Doenitz of the German Navy was illegally convicted of the offences. He was a subordinate officer and was acting under the orders of Hitler. If he did not act he would have been court martialed. By no stretch of imagination could it be said that he was a member of the conspiracy to wage the aggressive war against the Allies, nor was there any clear evidence to hold that he acted viciously on his own contrary to the orders issued to him.
At the same time it is necessary to have a judicial tribunal to decide the war crimes on the basis of clear and precise concepts of international law. The United Nations shall bring about an international treaty clearly defining the incidents of a war crime and the judicial procedure for enforcing the said law. It shall constitute an international Tribunal comprised of Judges from all the neutral states so that both the victor as well as the vanquished can be tried by the said Tribunal for the breach of the international law of war crimes. While I therefore agree that the Nuremberg trial did not comply with the requirements of law, I am strongly of the view that it is necessary to have an independent international Tribunal, which could objectively go into the war crimes irrespective of the fact they were committed by the vanquished or the victorious on the basis of a clear and precise international law of war crimes.”
Quote from the book Doenitz at Nuremberg: A Re-Appraisal edited by H. K. Thompson, Jr. and Henry Strutz, 2nd edition, Torrance, CA: Institute for Historical Review, 1993.
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