Was it a war crime when US nuked Hiroshima & Nagasaki?

No kidding, but they were not, however, charged with violation of any law that existed prior to 1945.

I suppose so, depending on how inclusive a definition you have in mind. Whatcha got in mind?

Since I didn't assert that the Nurnberg defendants had not been charged with violation of any law that existed prior to 1945, it would be more proper to ask what you had in mind when you made that statement.

Brandon,

Which international law, present in 1945, would have covered the war crimes the Nazis were subsequently tried for?

Answer: The indictments were not based on any law. They were ex post facto* indictments.

*retroactive

So, were the Nazis guilty of war crimes?

By the standard you have set forth herein, no, the Nazis were not guilty of war crimes.

The property of municipalities, of institutions dedicated to religion, charity and education, the arts, and sciences, even when State property, shall be treated as private property. All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and shall be made the subject of legal proceedings.

The Governments of the High Contracting Parties whose penal laws may not be adequate shall likewise take or recommend to their legislatures the necessary measures to repress in time of war all acts in contravention of the provisions of the present convention.

This isn't true, Craven. Germany had signed the Geneva Convention in 1929.

I'm not sure how much of the Nuremberg trials were ex post facto...

...but Germany was definitely in violation of this treaty which they had signed.

Of course, much of what they were tried for at Nurmeberg was the treatment of their own people in concentration camps, which would not have been covered.

COLONEL POKROVSKY: Your Honours, my task today is to present to you material on the "Criminal Violation of the Laws and Customs of War in the Treatment of Prisoners of War."

Before beginning the presentation of evidence relative to the overwhelming guilt of the defendants in regard to the persons who were captured by the German Army, I consider it essential to make a few brief remarks.
As early as the end of the last century, the Hague Convention of 1899 established certain rules regulating the rights and responsibilities of belligerents in regard to prisoners of war. In pursuance of the provisions of the 1899 Convention, a number of States drew up the necessary instructions concerning the treatment of prisoners of war. I would like to cite three or four sentences taken from such instructions:

"The exclusive aim of the military plan is to prevent the further participation of prisoners in the war. A State may do everything necessary for the holding of prisoners, but nothing more. Prisoners of war may be employed to perform moderate work in conformity with their social position.... In any case, such work must not be detrimental to health and must not be of a humiliating nature. It must not contribute directly to military operations against the native country of the prisoners. Prisoners of war lose their freedom but retain their rights. In other words, military confinement is not an act of mercy on the part of the captor, but the right of disarmed persons."

It may surprise you to learn that the instructions cited are those issued by the German General Staff in Volume 18 of the circular published in 1902 by the German General Staff.
The principle of humane treatment of prisoners and wounded Servicemen was further developed in the Hague Convention of 1907 and the Geneva Convention of 1929.

Germany's adherence to these conventions was definitely reflected in the German law regarding wartime courts martial. I have in mind, particularly, the German Law of 17th August, 1938, and, in particular, Section "e", Paragraphs 73 and 75, which contain direct reference to the Convention of 1929. That was at a time when Hitlerite Germany had already begun the execution of her aggressive plans.

As the Tribunal will remember, the 23rd Article of the Hague Convention of 1907 states,

"It is forbidden to kill or wound an enemy who, having laid down his arms and possessing no means of defence, has unconditionally surrendered."

It cannot be said that the brief code of the laws of war, which was, in fact, drawn up at The Hague and Geneva, encompassed the whole range of questions relating to those laws. The authors of these documents had, therefore, inserted the following proviso; and I will cite this excerpt:

"Until the opportunity presents itself of issuing a more complete code of the laws of war, the High Contracting Parties" -- and I would remind the Tribunal that Germany was one of those contracting parties -- "consider it appropriate to affirm that, in cases not provided for in the rules established by them, the population and the belligerents remain safeguarded by the principles of International Law in so far as these principles ensue from the customs, laws of humanity and dictates of public conscience in force between civilized nations."

I should like to emphasise that in the appendix to the Convention on the Laws and Customs of Land War -- Second Peace Conference, 190 --Article 4 of Chapter 2, concerning prisoners of war, states as follows; and you, Sir, will find the quotation on Page 4 of the document book, where it is underlined with red pencil:

"Prisoners of war remain in the custody of the enemy State and not of the individuals or troops which had captured them. They must be treated humanely. All their personal belongings except arms, horses, and military papers, will remain in their possession."

It may, therefore, be considered definitely established that the Governments of a number of States, including Germany, had unconditionally recognized their obligations to insure conditions under which prisoners of war should not suffer from arbitrary actions on the part of members of the Armed Forces of any State.
The natural conclusion presents itself that, in cases of violations of this obligation, the responsibility for any crime against a prisoner of war, and especially for a definite system of crimes against the dignity, person, health and life of prisoners of war, must fall on the Government of the country which had signed the Convention.

In the light of the facts which I shall submit to you, on the basis of irrefutable documents, Germany's solemn undertakings in regard to prisoners of war will appear to be nothing but unparalleled and cynical mockery of the very conception of treaties, laws, culture and humanity.

Oh, I know what I had in mind, but then you said my claim was contingient on the definition of law. What I was asking about was what kind of definition you had in mind that would make my statement false.

But to expound on what I had said, the courts used laws that they made up and applied retroactively. An example of this is the Nuremberg Code for medical experimentation.

What the Nazi doctors did was not proscribed by any prior law, so they were convicted for laws created for the purpose of their conviction and the laws were applied retroactively.

Laws such as the Nuremberg Code eventually did become real laws, for example California has adopted portions of it, but they were not laws at the time of the actions the Nazis were convicted for in the Doctors' Trials.

That's what I had in mind, in some cases their actions were not illegal by any existing laws. In other cases their actions were illegal by some existing laws but with no jurisdiction over them or other complications.

Ultimately they were not indicted on the basis of any existing national laws but rather ex post facto laws such as the Nuremberg Code.

If you have any definitional variance for the word "law" that makes this untrue I'd be interested. These trials facinate me.

joefromchicago wrote:

Craven de Kere wrote:

That's what I had in mind, in some cases their actions were not illegal by any existing laws. In other cases their actions were illegal by some existing laws but with no jurisdiction over them or other complications.

No jurisdiction? You'll have to explain that.

In some cases it would have had to have been German law, whose mechanisms and function expired right around the time of the trials for obvious reasons.

Quote:

Then I encourage you to read the relevant documents. The Avalon Project website is an excellent place to start.

I was just there today. Another good site is http://www.nizkor.org/ as it has many of the transcripts.

The thrust of my argument remains true, however, which is that many of the most obvious "crimes against humanity" had to be tried as ex post facto crimes, if perhaps not every last one of them.

In some cases it would have had to have been German law, whose mechanisms and function expired right around the time of the trials for obvious reasons.

The said war crimes constitute violations of international conventions, particularly of Articles 4, 5, 6, 7, and 46 of the Hague Regulations, 1907, and Articles 2, 3, and 4 of the Prisoner-of-War Convention (Geneva, 1929), the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and Article II of Control Council Law No. 10.

Incidentally Brandon, does any of this qualify for you toward American actions?

For example would you accept "already crimes by virtue of being violations of treaties or of international or domestic law"?

I'm not entirely sure what you're asking me.

Craven de Kere wrote:

The thrust of my argument remains true, however, which is that many of the most obvious "crimes against humanity" had to be tried as ex post facto crimes, if perhaps not every last one of them.

And those would be...?

Whoever commits an act which ... deserves punishment according to the principles of criminal law and to the sound feelings of the people, will be punished.

Craven de Kere wrote:

In some cases it would have had to have been German law, whose mechanisms and function expired right around the time of the trials for obvious reasons.

Well, I suppose if you're saying that the killing of Germans by Germans in German death camps did not contravene German domestic law, then I suppose you're right.

Of course, under that standard, the Nazi regime wasn't guilty of anything....

And it is evident that Count IV of the indictment against the "major" defendants (Goering, et al.) included charges for the murder of Germans by Germans in Germany (although that was not the only crime against humanity included in the indictment).

As I see it, the tribunal worked around the jurisdictional issue in two ways: (1) it substituted itself as the arbiter and enforcer of German law;

and (2) it held that the war was illegal under existing international legal norms, and thus acts in furtherance of that war (such as slave labor camps) were also illegal as violations of international law.

Craven de Kere wrote:

Incidentally Brandon, does any of this qualify for you toward American actions?

For example would you accept "already crimes by virtue of being violations of treaties or of international or domestic law"?

I'm not entirely sure what you're asking me. If you are referring to Hiroshima and Nagasaki...