AEROPUERTO INTERNACIONAL DE LA CIUDAD DE TOLUCA

On 29 April 1945 Hitler realised that his Reich had ended. In his bunker in Berlin he prepared his ‘Private and Political Testament’. In terms of this document the Presidency of the Reich was handed to Grand Admiral Karl Doenitz, who became Hitler’s successor as German Head of State. Hitler committed suicide shortly after the testament was signed. On 1 May 1945 Admiral Doenitz assumed the position of German Head of State and Commander-in-Chief of the armed forces. Less than a week later Doenitz agreed to Germany’s unconditional surrender to the Allied forces.367 After the German surrender and the conference of the Allied forces at Potsdam, the sovereign state of Germany seized to exist. Doenitz was no longer Head of State. In the place of the Nazi government, the Allied Forces created a

Condominium over the German territory, which was exercised by the Allied Control

Council at Berlin. This Control Council consisted of the Commanders in Chief of the four Allies.368

366 _{See concluding remarks by AS Comyns Carr (Military Tribunal for the Far East) (supra) 150 – 151.}

367 _{For the text of ‘The Private and Political Testaments of Hitler 29 April 1945’; ‘Assumption of Power by}

Doenitz, 1 May 1945’; and ‘The German Surrender, 7-8/9 May 1945’, see Walter Langsam (Historic Documents) (supra), 137 – 146.

While the major war criminals were tried at the IMT Nuremberg, the Control Council issued Control Council Law Number 10 on the Punishment of Persons Guilty of War crimes, Crimes against Peace and against Humanity (1945)369. The aim of this legislation was to make sure that the trials of Nazi war criminals subsequent to the IMT Nuremberg trial would have a sound legal basis and to enhance legal uniformity throughout occupied Germany. A number of important judgments were delivered by tribunals that operated in terms of the Control Council Law, for example the prosecution of powerful industrialists who supported the Nazi war effort (Krupp), the case against high officials of the Nazi state not tried at Nuremberg (Von Weizsakcker et al), and the so-called High Command Trial of the senior military officers (Von Leeb et al).370 _{While these cases confirmed the law on}

aggression371 as applied by the IMT Nuremberg, a common feature of these judgments is that they put the emphasis on the more nuanced personal positions and personalities of the accused. More emphasis was for example put on the ‘actual power of individuals to shape or influence the war policy’ of Germany. These statements by the tribunals under the Control Council Law later had an impact on the International Law Commission’s work on the definition of aggression, especially on the meaning of ‘waging of a war of aggression’.372

369 _{Control Council Law No 10 (Official Gazette Control Council for Germany No 3, Berlin, 31 Jan 1946 50 et}

seq), reprinted in Christine van den Wyngaert (International Criminal Law) (supra) 49-52. See further comments

by Gerhard Werle (Principles of International Criminal Law) (supra) 12.

370 _{See Gerhard Werle (Principles of International Criminal Law) (supra) 13.}

371 _{Art II 1(a) provided for Crimes against peace: ‘Crimes against Peace. Initiation of invasions of other}

countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.’

372 _{See discussion of various cases under the Control Council Law in Caroline Fournet (International Crimes)}

3.6 Concluding remarks

The judgments of the ad hoc tribunals at Nuremberg and, perhaps more controversially, Tokyo, represent the maturation of international criminal law. This was no longer the utopian ideal of writers and non-governmental organisations, but as a consequence of the work of the tribunals important areas of the desired international criminal law (de lege ferenda) became de lege lata — the law in force.373 Part of this historical development was the acceptance of individual criminal liability for the crime of aggression. Two important principles were thus established: (1) Aggression is a crime under international law; (2) Individuals can be held liable for the crime of aggression.

Looking at the Nuremberg and Tokyo judgments of the two post-war ad hoc tribunals, one can say that both the political and legal conditions were optimum for their relative success. Yes, one can criticise the processes as ‘victors’ justice’, and some dogmatic and jurisprudential critique against the ex post facto criminalisation of aggression at IMT Nuremberg seems (even today) to have some merit. However, the historical fact is that at Nuremberg (and later Tokyo) the long desired criminalisation of aggression reached its maturity. However, it is also prudent to make some critical preliminary observations regarding the ‘legacy of Nuremberg’, which will be more fully analysed in the next Chapter.

373 _{For a discussion of the distinction between de lege lata (the law in force) and de lege ferenda (the law in its}

primary stages; not in force, or desired law) in international criminal law, see Farhad Malekian The

monopolization of International Criminal Law in the United Nations (1993) Almqvist & Wiksell International,

The processes at Nuremberg (and later Tokyo) were, all matters considered, successful in making sure that peace was established not through political convenience, but at least with the help of justice. The two ad hoc tribunals represented important milestones on the long road to end impunity for crimes of international concern. As pointed out above, the political conditions were favourable to establish the ad hoc tribunals. The Allies could make sure that the logistics and political support for the tribunals were in place. Another important factor was that the big powers all committed themselves to the creation of a collective security system, dominated by the UN as successor of the failed League of Nations. This commitment to collective security and international co-operation was also later manifested in the important Nuremberg Principles374_{, which can be}

regarded as another cornerstone of the developing system of international criminal law. Apart from the fact that the political conditions after the Second World War were favourable for the creation of two ad hoc tribunals, one should not forget one of the contentions of the defence counsel before the IMT (Nuremberg), namely that aggression could never have been a crime under international law, because the very powers who were at that stage prosecuting the Nazis for aggression, were themselves responsible for the collapse of the post First World War collective security system. Indeed, the US never took part in the League of Nations, and the Soviet Union was expelled from the League because of its invasion of Finland in 1939. Although that argument of the defence was rejected by the IMT, it is an important theme that might recur when we look at the present debate about the inclusion of aggression as a crime within the jurisdiction of the International Criminal Court. For sure, although the criminalisation of aggression and the eventual judgments at Nuremberg and Tokyo were important historical milestones,

the reality of the Cold War had a significant impact on the development of international criminal law, including the doctrine and enforcement mechanisms for the crime of aggression.

Chapter 4

The ‘legacy of Nuremberg’: Establishing individual criminal liability