3. The prosecutions of agents of Turkey.
103. The UK made considerable efforts to prosecute Turkish officers for ill-treating prisoners of war and for other crimes during the First World War. The UK was in favour of the crimes being prosecuted by British courts-martial in the occupied territories since the crimes were not “within the sphere of municipal law” but were governed by “the customs of war and rules of international law”. A number of courts-martial were launched in 1919, but intervening domestic considerations in Turkey prevented them being pursued. Turkish courts-martial were also held and, while they CASE OF KONONOV v. LATVIA 4 страница were charged on the basis of the Turkish Criminal Code, certain convictions were based on “humanity and civilisation”. As noted above, the Treaty of Lausanne 1923 put an end to these prosecutions.
D. Prosecuting war crimes during the Second World War
1. Declaration on German War Crimes signed by Representatives of Nine Occupied Countries (“St James' Declaration 1942”)
104. In November 1940 the representatives of the exiled Governments of Poland and Czechoslovakia made allegations of violations of the laws of war against German troops. For the British Prime Minister, the prosecution of war crimes was part of the war effort: indeed, it was so for all CASE OF KONONOV v. LATVIA 4 страница States occupied by Germany and for China as regards Japanese occupying troops. In London in 1942 representatives from territories occupied by Axis forces adopted the St James' Declaration on war crimes and punishment. Its Preamble recalled that international law and, in particular the Hague Convention 1907, did not permit belligerents in occupied countries to perpetrate acts of violence against civilians, to bring into disrepute laws in force or to overthrow national institutions. The Declaration went on:
“1. Affirm that acts of violence thus perpetrated against civilian populations are at variance with accepted ideas concerning acts of war and political offenses as these are understood CASE OF KONONOV v. LATVIA 4 страница by civilized nations; ...
3. Place amongst their principal war aims punishment through the channel of organized justice of those guilty and responsible for these crimes, whether they have ordered them, perpetrated them or in any way participated in them;
4. Determine in the spirit of international solidarity to see to it that (A) those guilty and responsible, whatever their nationality, are sought for, handed over to justice and judged; (B) that sentences pronounced are carried out.”
105. Following this Declaration, the United Nations (“UN”) War Crimes Commission (“UNWCC”) was established (1943). It was to compile evidence of war crimes which files served as CASE OF KONONOV v. LATVIA 4 страница warrants for prosecution by military authorities of those accused. By the end of its mandate it had succeeded in compiling 8178 files concerning persons suspected of war crimes. The Commission adopted in full the list of offences in the International Commission Report of 1919 (paragraph 92 above) to be adapted where appropriate to the conditions of the Second World War.
2. Prosecution of war crimes by the USSR
106. As early as November 1941 the USSR informed all countries with which it had maintained diplomatic relations of the war crimes committed by, in particular, Nazi Germany in the occupied territories. In order to record CASE OF KONONOV v. LATVIA 4 страница the crimes allegedly committed by the German forces and to establish the identity of those guilty so as to bring them to justice, a Decree dated 2 November 1942 established the “Extraordinary State Commission for ascertaining and investigating crimes perpetrated by the Germano-Fascist invaders and their accomplices, and the damage inflicted by them on citizens, collective farms, social organizations, State enterprises and institutions of the USSR”. The Commission's work was used in the later “Krasnodar” and “Kharkov” trials (below).
107. The first trials of USSR citizens (accomplices and active assistants of the German forces) took place at Krasnodar in CASE OF KONONOV v. LATVIA 4 страница July 1943. The accused were charged and convicted by USSR criminal courts of murder and treason under the Soviet criminal code.
108. The later Moscow Declaration 1943 of the UK, US and USSR was one of the most significant declarations of the Second World War concerning the prosecution of war criminals. It confirmed the legitimate role of national courts in punishing war criminals and the intention to pursue such prosecutions after the war. It read, in so far as relevant, as follows:
“... the aforesaid three Allied powers, speaking in the interest of the thirty-two United Nations, hereby solemnly declare and give full CASE OF KONONOV v. LATVIA 4 страница warning of their declaration as follows:
At the time of granting of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in the above atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein. [...]
Thus, Germans who take part in wholesale shooting CASE OF KONONOV v. LATVIA 4 страница of Polish officers or in the execution of French, Dutch, Belgian or Norwegian hostages or Cretan peasants, or who have shared in slaughters inflicted on the people of Poland or in territories of the Soviet Union which are now being swept clear of the enemy, will know they will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged.
Let those who have hitherto not imbued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied powers will CASE OF KONONOV v. LATVIA 4 страница pursue them to the uttermost ends of the earth and will deliver them to their accusors in order that justice may be done.
The above declaration is without prejudice to the case of German criminals whose offenses have no particular geographical localization and who will be punished by joint decision of the government of the Allies.”
109. This latter provision envisaged the prosecution of German war criminals by the USSR and the first trial took place at Kharkov in December 1943. The Presidium of the Supreme Soviet had issued a Decree in 1943 laying down the punishments to be applied. The indictment CASE OF KONONOV v. LATVIA 4 страница alleged that they were responsible for having gassed thousands of inhabitants of Kharkov and its region, of committing brutal atrocities against civilians, of having burnt villages and exterminated women, old people and children as well as of having executed, burnt alive and tortured the wounded and prisoners of war. The prosecution relied on the rules of war laid down by international conventions (Hague Convention and Regulations 1907 and Geneva Convention 1929, noting that Germany had ratified both) and universally accepted provisions of international law. The indictment not only referred to the responsibility of the German Government and Command, but to the CASE OF KONONOV v. LATVIA 4 страница individual responsibility of the accused (referring to the Leipzig trials). After admitting their own and their hierarchical superiors' guilt, the three accused were sentenced to death by hanging. The fairness of the trials may have been called into question later, but they were widely reported. The USSR awaited the end of the war before resuming such trials: trials were also held in Kiev, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie Luki and Nikolaev.
110. As soon as the territories of Bulgaria were liberated from German forces, the Bulgarian People's Court in December 1944 convicted 11 Bulgarians of war crimes in application of CASE OF KONONOV v. LATVIA 4 страница the Moscow Declaration 1943.
3. Prosecution of war crimes by the US
(a) US Field Manual: Rules of Land Warfare, 1 October 1940
111. This comprehensive manual was compiled by the U.S. War Department in 1940 and issued to forces in the field. It contains both customary rules of war and rules arising from treaties to which the U.S. was party and interprets rules of armed conflict applicable to US military forces at that time. It described the “Basic principles” as follows:
“Among the so-called unwritten rules or laws of war are three interdependent basic principles that underlie all of the CASE OF KONONOV v. LATVIA 4 страница other rules or laws of civilized warfare, both written and unwritten, and form the general guide for conduct where no more specific rule applies, to wit :
(a) The principle of military necessity, under which, subject to the principles of humanity and chivalry, a belligerent is justified in applying any amount and any kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money;
(b) The principle of humanity, prohibiting employment of any such kind or degree of violence as is not actually necessary for the purpose of the CASE OF KONONOV v. LATVIA 4 страница war; and
(c) The principle of chivalry which denounces and forbids resort to dishonorable means, expedients, or conduct.
112. Paragraph 8 of the Manual provided that:
“Genera1 division of enemy population - The enemy population is divided in war into two general classes, known as the armed forces and the peaceful population. Both classes have distinct rights, duties, and disabilities, and no person can belong to both classes at one and the same time.”
113. The Manual continued:
“Determination of status of captured troops - The determination of the status of captured troops is to be left to higher military authority or to military tribunals. Summary CASE OF KONONOV v. LATVIA 4 страница executions are no longer contemplated under the laws of war. The officer's duty is to hold the persons of those captured and leave the question of their being regulars, irregulars, deserters, etc., to the determination of competent authority. ...
Hostilities committed by individuals not of the armed forces - Persons who take up arms and commit hostilities without having complied with the conditions prescribed by the laws of war for recognition as belligerents are, when captured by the injured party, liable to punishment as war criminals. ...
Right of trial - No individual should be punished for an offense against the laws of CASE OF KONONOV v. LATVIA 4 страница war unless pursuant to a sentence imposed after trial and conviction by a military court or commission or some other tribunal of competent jurisdiction designated by the belligerent.”
(b) ex parte Quirin (1942) 317 U.S. 1
114. In 1942 eight undercover Nazi saboteurs travelled to the US, were captured and tried by a secret military commission on, inter alia, charges of offences contrary to the law of war (including wearing of civilian clothes to move by deception behind enemy lines to commit acts of sabotage, espionage “and other hostile acts”). Their lawyers took a writ of habeas corpus to the Supreme Court, which CASE OF KONONOV v. LATVIA 4 страница court stated as follows:
“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in CASE OF KONONOV v. LATVIA 4 страница time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”
E. Trials by the IMTs after the Second World War, for acts committed during that war.
1. The Potsdam Agreement 1945
115. The Potsdam Agreement concerned the CASE OF KONONOV v. LATVIA 4 страница occupation and reconstruction of Germany and other nations following the German surrender of May 1945. It was drafted and adopted by the USSR, US and UK at the Potsdam Conference between 17 July and 2 August 1945. As regards the pursuit of war criminals, the Agreement provided as follows:
“The Three Governments have taken note of the discussions which have been proceeding in recent weeks in London between British, United States, Soviet and French representatives with a view to reaching agreement on the methods of trial of those major war criminals whose crimes under the Moscow Declaration of October, 1943 have no particular geographical localization. The CASE OF KONONOV v. LATVIA 4 страница Three Governments reaffirm their intention to bring these criminals to swift and sure justice. They hope that the negotiations in London will result in speedy agreement being reached for this purpose, and they regard it as a matter of great importance that the trial of these major criminals should begin at the earliest possible date. The first list of defendants will be published before 1st September.”
2. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (“London Agreement 1945”)
116. Following the unconditional surrender of Germany, the Allied Powers signed the London Agreement 1945:
“Whereas CASE OF KONONOV v. LATVIA 4 страница the United Nations have from time to time made declarations of their intention that War Criminals shall be brought to justice;
And whereas the Moscow Declaration of the 30th October 1943 on German atrocities in Occupied Europe stated that those German Officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in atrocities and crimes will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free Governments that CASE OF KONONOV v. LATVIA 4 страница will be created therein;
And whereas this Declaration was stated to be without prejudice to the case of major criminals whose offenses have no particular geographical location and who will be punished by the joint decision of the Governments of the Allies; ...
Article 1: There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of the organizations or groups or in both capacities.
Article 2: The constitution, jurisdiction and functions of the CASE OF KONONOV v. LATVIA 4 страница International Military Tribunal shall be those set in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement. ...
Article 4: Nothing in this Agreement shall prejudice the provisions established by the Moscow Declaration concerning the return of war criminals to the countries where they committed their crimes. ...
Article 6: Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any Allied territory or in Germany for the trial of war criminals.”
3. Charter of the IMT (Nuremberg)
117. The Charter was CASE OF KONONOV v. LATVIA 4 страница annexed to the London Agreement 1945. It provided, inter alia, a non-exhaustive list of violations of the laws and customs of war for which “Leaders, organizers, instigators and accomplices” were liable and it prescribed the penalties:
“Article 1: In pursuance of the Agreement signed on the 8th day of August 1945 by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics, there shall be established an International Military Tribunal (hereinafter called “the Tribunal CASE OF KONONOV v. LATVIA 4 страница”) for the just and prompt trial and punishment of the major war criminals of the European Axis. ...”
“Article 6: The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: ...
(b) War CASE OF KONONOV v. LATVIA 4 страница Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; ...
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any CASE OF KONONOV v. LATVIA 4 страница of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. ...”
“Art. 8: The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. ...”
“Art. 27: The Tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just.
Art. 28: In addition to any punishment imposed by it, the Tribunal shall have the right to deprive CASE OF KONONOV v. LATVIA 4 страница the convicted person of any stolen property and order its delivery to the Control Council for Germany.”
4. Judgment of the IMT Nuremberg
118. The judgment, referred extensively to the customary nature of the Hague Convention and Regulations 1907:
“The Tribunal is ... bound by the Charter, in the definition which it gives both of war crimes and crimes against humanity. With respect to war crimes, the crimes defined by Article 6, section (b), of the Charter were already recognised as war crimes under international law. They were covered by Articles 46, 50, 52, and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46 and 51 of the Geneva CASE OF KONONOV v. LATVIA 4 страница Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument.
But it is argued that the Hague Convention does not apply in this case, because of the 'general participation' clause in [its] Article 2. ...
Several of the belligerents in the recent war were not parties to this Convention.
In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But CASE OF KONONOV v. LATVIA 4 страница the Convention expressly stated that it was an attempt 'to revise the general laws and customs of war', which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter.”
119. In the section dealing with “the Law of the Charter” and in dealing with the crime against peace, the judgment noted:
“The Hague Convention 1907 prohibited resort to certain methods of waging war. These CASE OF KONONOV v. LATVIA 4 страница included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as offences against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this CASE OF KONONOV v. LATVIA 4 страница Convention. ... In interpreting the words of the [Kellogg-Briand Pact], it must be remembered that international law is not the product of an international legislature, and that such international agreements as the [Kellogg-Briand Pact] have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation CASE OF KONONOV v. LATVIA 4 страница follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.”
5. Charter of the IMT Tokyo 1946
120. This Charter was approved by unilateral declaration of the Supreme Commander of the Allied Forces on 19 January 1946. The relevant part of Article 5 of the Charter provides as follows:
“The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offenses which include Crimes against Peace.
The following acts, or CASE OF KONONOV v. LATVIA 4 страница any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(b) Conventional War Crimes: Namely, violations of the laws or customs of war;
(c) ... Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan.”
6. Judgment of the IMT Tokyo 1948
121. As to the status of the Hague Convention 1907, the judgment of the Tokyo War Crimes Tribunal of 12 November 1948 stated as follows:
“... The effectiveness CASE OF KONONOV v. LATVIA 4 страница of some of the Conventions signed at The Hague on 18 October 1907 as direct treaty obligations was considerably impaired by the incorporation of a so-called 'general participation clause' in them, providing that the Convention would be binding only if all the Belligerents were parties to it. The effect of this clause, is, in strict law, to deprive some of the Conventions of their binding force as direct treaty obligations, either from the very beginning of a war or in the course of it as soon as a non-signatory Power, however insignificant, joins the ranks of the Belligerents. Although CASE OF KONONOV v. LATVIA 4 страница the obligation to observe the provisions of the Convention as a binding treaty may be swept away by operation of the 'general participation clause', or otherwise, the Convention remains as good evidence of the customary law of nations, to be considered by the Tribunal along with all other available evidence in determining the customary law to be applied in any given situation. ...”
7. The Nuremberg Principles
122. In mid-1950 the International Law Commission adopted the seven “Nuremberg Principles” summarising the “principles of international law recognized” in the Charter and judgment of the IMT Nuremberg:
“Principle I: Any person who commits an act which constitutes CASE OF KONONOV v. LATVIA 4 страница a crime under international law is responsible therefor and liable to punishment.
Principle II: The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. ...
Principle IV: The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Principle V: Any person charged with a crime under international law has CASE OF KONONOV v. LATVIA 4 страница the right to a fair trial on the facts and law.
Principle VI: The crimes hereinafter set out are punishable as crimes under international law: ...
(b) War crimes: Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. ...
Principle CASE OF KONONOV v. LATVIA 4 страница VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.”
F. National prosecutions for war crimes, after the Second World War, for acts committed during that war
1. Allied Control Council Law No. 10 - Punishment of War Crimes, Crimes against Peace and against Humanity (“Control Council Law No. 10”) and “the Hostages Case”
123. The Control Council Law No.10 was issued in December 1945 by the Allied Council in control of Germany to establish a uniform legal basis for the prosecution in Germany of war criminals CASE OF KONONOV v. LATVIA 4 страница (other than those on trial at the IMT Nuremberg). Article 1 made the Moscow Declaration 1943 and the London Agreement 1945 integral parts of the law. Article II (5) provided:
“In any trial or prosecution for a crime herein referred to, the accused shall not be entitled to the benefits of any statute of limitation in relation to the period 30 January 1933 to 1 July 1945 ...”
124. This Law also recognised acts, almost identical to Articles 6(b) of the Charter of the IMT Nuremberg, as constituting war crimes and provided that any person committed a war crime whether he was a principal, an accessory, if CASE OF KONONOV v. LATVIA 4 страница he ordered or abetted ortook a consenting part in the crime or was connected with plans or enterprises concerning the commission of the crime or was a member of any organization or group connected with its commission. Punishments were also specified.
125. In the Hostages (Wilhelm List) case,the accused were charged with war crimes and crimes against humanity committed during the Second World War relating mainly to the institution of a scheme of reprisal killings in occupied territory and to the summary execution of Italian troops after they surrendered. The judgment noted that the crimes in the Charter of CASE OF KONONOV v. LATVIA 4 страница the IMT Nuremberg and in the Control Council Law No. 10 were declaratory of the existing laws and customs of war.
126. The judgment noted that List was:
“authorised to pacify the country with military force; he was entitled to punish those who attacked his troops or sabotaged his transportation and communication lines as francs tireurs; ... This means, of course, that captured members of these unlawful groups were not entitled to be treated as prisoners of war. No crime can be properly charged against the defendants for the killing of such captured members of the resistance forces, they being franc-tireurs.”
127. As CASE OF KONONOV v. LATVIA 4 страница regards military necessity, the judgment noted as follows:
“Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money. In general, it sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and CASE OF KONONOV v. LATVIA 4 страница others of peculiar danger, but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of International Law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.”
128. While the tribunal had to admit that the absence of a formal declaration of war between Germany and Italy created grave doubts as to whether CASE OF KONONOV v. LATVIA 4 страница the executed Italian officers would have been entitled to prisoners of war status, it looked beyond this fact to find that their summary execution was “unlawful and wholly unjustified”.
2. Other national trials
129. Following the Second World War various national tribunals pursued war crimes prosecutions for acts committed during the Second World War. These included prosecutions before Australian, British, Canadian, Chinese, French, and Norwegian military and civilian courts. All concerned breaches of the laws and customs of war and many concerned the necessity of fair trials prior to the punishment of those suspected of war crimes. Certain judgments stressed the legitimate referral CASE OF KONONOV v. LATVIA 4 страница of a domestic tribunal to the international laws and customs of war and referred to rules concerningthe unnecessary destruction of civilian property, the unlawful wearing of an enemy uniform and individual command responsibility.