Execution of civils in the East

I am. :slight_smile:

My comment was responding to your ICRC quote, which in the sentence preceding the final paragraph says only that the final paragraph was suggested. I don’t know if that suggestion was adopted.

The quote from ICRC is comments to the document of 1949.
Never mind…

May I ask you to explain a bit about “clausula si omnes” and “res inter alios acta”?
What is the difference and pssible implication for the conventions of 1907 and 1929?
In 1929 they abandonet clausula si omnes. But in my understanding it makes no difference in relations to the non contracting parties.

Well, in that case, my dear Mr. Rising Sun, please explain to our young Student at Law also those less known, but highly important legal concepts such as de lege ferenda and obligatio erga omnes, which – with a bit of luck! – will be sufficient to explain how a state which becomes a party to international convention is able to recognize the rules of that given character in its own respect as having an obligatory character in relation to everyone, thus binding not only its contracting parties on a strictly contractual basis, but as parts of customary international law. :slight_smile:

On the other hand, I shall try to explain one much more important problem, beautifully expressed with these words of yours:

If we applied the same rules to people within those states then those states would be ungovernable. The difference is that within a state there is a legal system which is enforced by various mechanisms of the state, such as police, courts and prisons, but there are no corresponding international mechanisms.

Bulls Eye, my esteemed coleague! Indeed, honorable ladies and gentlemen, if we accept so called command definition of law as the rules established by the State and enforced by the State, then clearly there can be little hope for any juridical development in the field of world affairs unless a Super–State is created which has the power to enforce its commands on the subordinate national States. According to this view, the present national States can only be legally bound to each other if there is some superior power which is capable of enforcing its rules by applying a sanction in case there is a breach of them. This doctrine was accepted by the majority of the jurists during the XIX century, when the command interpretation of law held the field. To them the idea of a law which was not enforced by a specific sanction was a contradictio in adjecto.

International law, therefore, was not law in the true sense, and it could not legally bind the various nations. Every State must be a sovereign state, because no law could limit its powers. It may be said that the facts seemed to abide by the rules of International law only in so far as it suited their interests. A rule which can be disregarded at will obviously has not got that compulsive nature which is an essential element in all law. Without a sanction there could be no compulsion to obedience. But in that case we are facinng an enormous threat. :frowning:

If law in a nation State based upon direct or indirect democracy is merely the codification of the will of the majority, then, honorable ladies and gentlemen, there is nothing the law cannot be made to do! Anything that is possible can be made legal by the legislative enactments of an elected parliament: the confiscation of property, the abrogation of freedom, the sterilization of paupers, the racial discrimination and even genocide.

The Nazi legislation that paved the way for the Holocaust was an unprecedented example of a legalistic law-making run amok. But, in one of history’s more astounding ironies, this law without justice was righted by justice without law. Following the defeat of Germany some Germans found themselves being tried for complying with the very laws that their government had made in a decade earlier. But there was no legal precedent for trying the law of the land, however evil that law might be, and the Allied prosecutors had to rely on the IDEA OF HIGHER LAW, of the Natural Right of men, women and children not to be abused by any government – domestic or foreign.

Before Nuremberg, the doctrine and approach of International Law was that the way in which a government treated people was entirely a matter for the sovereign decisions of that sovereign state. After the war and the creation of an International Code of Human Rights (in 1948), the position of the individual human being was transformed as a matter of law from being a mere object of compassion to being a subjet of RIGHTS!

To be continued…

@Rising Sun*

Another question: Did not Germany have to apply Geneva 1929 to Soviet POW anyway on the ground of “Customary international law”?

I mean could one argue that by 1941 the provisions of Geneva convention became Customary international law and therefor should have been applied even towards the nonsignatiory conflict parties?

@Librarian, you are very welcome to comment as well. :slight_smile:

The short answer to your question is, in my view: No. If it was customary international law it wouldn’t have needed to be codified in a convention as, in theory which is all international law is in any case, all nations would already have known the customary law and could be relied upon (Yeah! Right!) to observe it without requiring them to sign the Convention.

That said, there is a huge and long standing debate beneath my confident statements, which revolves around exactly what is customary international law; when it becomes customary; what makes it customary; what is customary among which nations; and, in relation to your question, the sources of customary international law during WWII.

If you want to make your brain hurt exploring some of these aspects, settle down with a large bucket of lemon tea and a small bucket of your preferred pain killer (or maybe vice versa :wink: ) and plough through this http://www.asil.org/ajil/roberts.pdf

The very short, in international law terms, existence by WWII of the 1929 Convention signed by some nations did not make its contents customary international law.

One could also raise the argument that, while not a strict requirement in international law but nonetheless recognised in various forms in some legal systems as expressed in the English legal system, he who seeks equity must do equity or, expressing a similar notion differently, seek it with clean hands. The situation with the USSR is complicated by questions about the legitimacy of its government in international law terms and its own expansionist actions and crimes against humanity (although on one view those crimes weren’t part of customary or any other international law at the time) preceding its war with Germany when it colluded with Germany in carving up Poland and the Baltic states.

As with many issues which descend into debates about the law and its supposed failures, the real problem is not the law but the failure of people or, in this case, nations controlled by people to observe the law. If Germany and the USSR had both respected the sovereignty of other nations and stayed within their borders 1939-45 and conformed to international law, whether under customary law or conventions, then we wouldn’t be having this discussion.

Just on your link which refers to customary international humanitarian law, that has no bearing on treatment of POWs which was regulated by the laws of war rather than humanitarian laws.

It is common in most discussions outside serious legal or academic circles for people to proceed as if the international laws affecting treatment of intra-state civilians (e.g. German Jews in Holocaust); extra-state civilians (e.g. Russian civilians under Einsatzgruppen); and POWs (e.g. Russian prisoners in Germany, and vice versa) were all the same. They’re not, which is one of the reasons the Hague Conventions were initiated, to protect civilians in time of and in the path of war.

Overall, the problem with focusing on a specific issue such as the outrageously brutal and inhumane treatment of Russian POWs by Germany, or vice versa, is that it can become a plank in an argument to establish the moral guilt or superiority of one side when, on a balanced view of all events, they are often about as bad as each other, regardless of who started the conflict.

Instead of international law being expected to deal with issues such as the German mistreatment and extermination of Russian POWs (and vice versa), a better approach from a legal point of view would be to prosecute each offence individually and punish those responsible for each act. But there wouldn’t be enough courtrooms and enough time between the end of the war and the death of everyone involved in it to begin to deal with every case.

You really are a very good student, my dear Mr. Egorka. And please – dont worry: your older colleague Librarian is preparing one large article about this knotty issue. You will excuse me for a moment, because I currently have to reexamine certain… texts which were given to me by my dearly beloved and deeply respecrted teacher, the Right Honorable Elwyn Jones, former Lord Chancellor of Britain, who, by the way, was a junior prosecutor on the British team at Nuremberg. Therefore please, have some patience. After all, I have to retranslate those thoughts in our current lingua franca.:smiley:

However, for time being, here is another example of highly useful literature for you:

http://books.google.hu/books?id=a0JSDR_yxfQC&pg=PA92&lpg=PA92&dq=erga+omnes,+Nuremberg&source=bl&ots=qAtFl6rvRG&sig=07_-O1Xu5ETGvjacqdSDX3zbjjc&hl=en&sa=X&oi=book_result&resnum=1&ct=result

In the meantime, as always - all the best! :wink:

Librarian,
Do I understand it right that the legal notion Erga omnes was first established and recognised only in 1970, i.e. way after WW2?

There were nothing complicated with neither with USSR nor with Nazis Germany.
Both gov have been recogniged officialy by the West ( USA and Britain) . Besides Nazis won the official election by the more or less democratic way.
Official diplomatic SU-US relation have been established 13 November of 1933
http://ru.wikipedia.org/wiki/Российско-американские_отношения#.D0.A1.D0.A1.D0.A1.D0.A0_.E2.80.94_.D0.A1.D0.A8.D0.90
The British Empire has recognized the USSR before - in 1924 and immediatelly start trade with them.
In the 1924 the USSR has been adopted to League of Nations.
So there is no any point about question of “legitimacy of its government”. West actively traded and interacted with SU since the 1930-yy.USA even supplied the wearpon to Soviet Russia.
As for Nazi Germany , west start the active International interaction with Hitler before even Stalin was his friend:)
http://en.wikipedia.org/wiki/Munich_Agreement
In 1938 France and Britain cooperated with Nazis very well, curving up the their ally Chehoslovakia.
So hardly somebody might cry about “unfair” to German Nazis govenment.That’s just funny.
Everything was OK , before 1939.:slight_smile:
AS for “carving up” Poland and Baltic states- can you remind me how Poland themself curved up the Western Ukraine?
No?What a surprise:D
P.S. The Nazis GErmany and USSR was an equal legitime members of international law till the most its’ end in 1945 and 1991 respectively.

Well, that’s what I get for commenting on what I thought was the case rather than checking it first. :frowning:

It really pisses me off when people upset my uninformed comments by introducing contradictory facts. :wink: :smiley:

Hey, tell me… That is the worst!!!

heheheheheheee

Oh sorry mate, to piss you off with my comments:)
Come on , you do have enough feeling of humour to take it easy, my friend.
BTW what a “contradictory facts” did you mean?

You really are an impatient student, my dear Mr. Egorka. Unfortunatelly, in this very moment I am pretty unable to finish that previously mentioned large article due to my unalterable professional obligations, nowadays – pretty unexpectedly! – associated with my dearly beloved ex-company, and directly connected with certain chemical processes within sugar beat slurry operated bio-gas rectors. Nevertheless, a direct answer to your enthusiastic question is - no. :slight_smile:

Although obligatory erga omnes legal regulations were codified in the early XVIII century, the machinery of law was actually altered in this manner between 1832 and 1882, and this highly innovative legal improvement was actually introduced under the various Companies Acts, beginning in 1844. Unfortunately, it was not until 1871 that the science of law gave them adequate recognition. However, this completely legal academic evaluation – although highly interesting! - is not important for our case we do have here. What is important for us here is the fact that the regulation erga omnes was formally and unquestionably accepted by the German government before the WW2.

Our modern, sorrowfully unacquainted general populace is completely ignorant about the fact that an professionally brilliant, ethically superb and personally incredibly brave German iurist of the Wehrmacht, Colonel General Helmuth James Count von Moltke, directly claimed in his official memorandum to OKW that the order issued by a great legal genius and democratically elected omnipotent governor of the Reich, Mr. Adolf Hitler, who instructed German soldiers to execute Soviet prisoners of war because the Soviet Union had not signed international conventions protecting prisoners of war, thus refuting their protection under international law - actually was completely illegal.

He was sufficiently convinced and unshakably resolved to emphasize publically the fact that although the Soviets had not signed the Geneva Convention regarding POWs, the Germans had. Completely incredibly, but article No. 82 of the Convention obliged signatories to treat all prisoners, from any state, according to the dictates of humanity, thus providing an excellent example of completely valid obligatory disposition erga omnes.

[i]Art. 82. The provisions of the present Convention shall be respected by the High Contracting Parties in all circumstances.

In time of war if one of the belligerents is not a party to the Convention, its provisions shall, nevertheless, remain binding as between the belligerents who are parties thereto.[/i]

The only thing that allied prosecution in Nuremberg was beholden to prove was the per se inconsistency of the German factual deeds with the general principles of humanity. And that task, my dear Mr. Egorka was an easy one:

Bodies of Soviet prisoners of war

Across the years, one cannot help but admire the personal courage and moral integrity of German military lawyers who openly advised the OKW that numerous Hitler’s edicts were completely illegal, and that Soviet prisoners of war should be handled humanely as a matter of customary international law even though the Soviet Union was not a party to the relevant conventions. Another legal expert, Field Marshal Wilhelm Keitel, called “Nickesel” (“the nodding donkey”) by other colleagues, wrote some highly brainless, nowadays sorrowfully revitalized remarks about the obsolescence of the Geneva rules as resources of the International customary law, but places where those outstanding German lawyers were executed fortunately still are German national memorials today.

In the mantime, my precious young apprentice, as always – all the best! :wink:

I was being ironic and self-deprecating in what I thought was a humorous fashion.

Hard to believe, I know, but it looks like it might be another one of my attempts at humour which failed. :frowning:

Well, there are lots of facts and they don’t matter to me, but there are facts which contradict me and they do matter to me, and even more so when, like your post on the legitimacy of the Soviet government, they prove me wrong. :wink: :smiley:

We all are getting impatient students when you post the brilliant, unique ORIGINAL information with amazing ( always new for me) graphic context , that found out in your priceless Library, dear mr Librarian.

Hi!

First, as I understand, and I am sure you will correct me if needed, some regulations regarding international law can come in force between 2 countriess by mean of 3 ways only:
[ol]
[li]Through “Treaty Law” (Conventions, treaties and so on);[/li][li]Through “Customary Law” (when law becomes internationaly recognised custom);[/li][li]And voluntarily undertakes obligations.[/li][/ol]

With all due respect, but I have an objection.
That “thereto” in the art. 82 referes to what? War or Convention?
The matter is that it referes to “Convention”, and NOT to “War”. So now replace “thereto” in the article with word “Convention” and see what meaning the article 82 has.

The thing is that the both Russian and, as I was assured, German translation of the article 82 can be ambigously understood, because it is grammaticaly not possible to distinguish to what (war or convention) the article referes in its last part.

Nonetheless in the original Frenchtext of the Geneva 1929 document this double understanding is avoided:
ARTICLE 82.
Les dispositions de la présente Convention devront être respectées par les Hautes Parties Contractantes en toutes circonstances.
Au cas où, en temps de guerre, un des belligérants ne serait pas partie à la Convention, ses dispositions demeureront néanmoins obligatoires entre les belligérants qui y participent.

This “y participient” can not possibly refer to word “guerre”, but only to the word “la Convention”.
This means that the Geneva 1929 was not applicable through “Treaty law” between Germany and USSR as of 22 June 1941. (The later period of war is actually another story.)

The only way it could be in force between Germany and USSR as of 22-06-1941 is through “Customary law” or voluntarily.

Do you agree so far?

Briefly, my dear Mr. Egorka: no, I don’t. And I am assuring you that I am not alone. You see, the science of law is much more than pure grammar.

Therefore please - do some further research. :wink:

I am a bit confused by briefness of your answer. If I made mistake then, please, tell me where.

Oh, please, don’t be so confused, my dear Mr. Egorka. As far as I remeber I have clearly stated in my previous post that in this very moment I do have some other, more important business. I am sure that you will understand that even I have to earn my own salary. :slight_smile:

And if you do need a completely free advice, concentrate on two things:

a)Unilateral obligations erga omnes;

b)History of the consensus legis.

You will excuse me, but right now I have to concentrate on my dearly beloved cellulose degrading enzymes…:roll: You know, those Americans are willing to pay certain amount of money for my skills in this specific field. But don’t worry, I will be available very soon, probably next week. Till then – all the best. :smiley:

Fair enough! I do understand that we chat here in our spare time which we have little off. :slight_smile:

[ul]
[li]But do you at least agree that the French text is the text of original and has priority over translations?
[/li][li]And do you object my understanding of french original text?
[/li][/ul]

Oh, my Lord… I shall never finish these calculations! :cry:

Extremly briefly, my dear Mr. Egorka: I really do like to chat with you, as well as with all our members here, but I simply have to fulfill my professional obligations! :slight_smile:

And no, that French text is absolutely valid, as well as that previously posted English variant! Our strictly legal problem is not connected with the text! Text is completely clear in both cases – the only problem is that for some completely unknown reasons you are thinking that the presence of the General Participation Clause of Treaty (generally known amongst jurists as clause Si Omnes - ‘if’ clause - which lays down a condition!) previously undeniably introduced in the Hague convention of 1907 is somehow still valid, but it is not!

The Hague convention equipped with this restrictive clause really was applied only to states in conflict which were parties to the previously mentioned legal instrument. But the Geneva convention of 1929 explicitly REVERSED that previous Si Omnes clause – a clause of stipulation which provides that the rights and duties of the given treaty will ONLY be applied to a situation when ALL STATES involved in an issue ARE PARTIES to the subject treaty, thus creating strictly mutual, reciprocal legal relations amongst participants – into ERGA OMNES obligation, unlimited obligation with universal, but unilaterally given character! You don’t believe this – no problem, just follow this link:

http://books.google.hu/books?id=6QjrSHfoEiAC&pg=PA181&lpg=PA181&dq=Geneva+convention+1929,+obligatory+clausule&source=web&ots=5qLIcxjUL6&sig=aKiKXM3W8iXTmo2OzM_fdBD0GFk&hl=en&sa=X&oi=book_result&resnum=6&ct=result#PPA180,M1

Another direct explanation is mentioned in the very preamble of the Convention:

The 1929 Convention had already departed from it by stating in the second paragraph of Article 82 that “in time of war, if one of the belligerents is not a party to the Convention, its provisions shall, nevertheless, remain binding as between the belligerents who are parties thereto”. Thus the provisions concerning prisoners of war were given the binding force. The fact that one of the belligerents was not a party to the Convention could no longer nullify its applicability.

And if you think that generally known paragraph signed by General Reinecke on the 8th September, 1941 which stated that: "The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the U.S.S.R. Therefore only the principles of general international law on the treatment of prisoners of war apply. - is valid in this case – you are wrong! In point of fact, Kanaris and Reinecke were just a little bit more concerned for their own skin!

And now back to the Organic Chemistry…:roll:

I DO understand that.
So take all the time you need!

And no, that French text is absolutely valid, as well as that previously posted English variant! Our strictly legal problem is not connected with the text! Text is completely clear in both cases – the only problem is that for some completely unknown reasons you are thinking that the presence of the General Participation Clause of Treaty (generally known amongst jurists as clause Si Omnes - ‘if’ clause - which lays down a condition!) previously undeniably introduced in the Hague convention of 1907 is somehow still valid, but it is not!
Again, I DO realise that “si omnes” was intentionaly removed from the article 82 of 1929 as compared to article 2 of 1907! And that “si omnes” did not apply after for the Convention 1929.

But I see it that absence of “si omnes” in article 82 did not automaticaly give rights to the nonsignatories.
That is why I again repeat my point: From the “Treaty law” point of view, the text of art.82 does NOT itself give rights to the none-signatories, but only forces signatories to fullfill the obligation as between each other.

But than remains “Customary law”. I understand that!!! But in order to procede gradually, can we first settle the issue from the “Treaty law” pont of view???

The Hague convention equipped with this restrictive clause really was applied only to states in conflict which were parties to the previously mentioned legal instrument.
With all due respect, “si omnes” does not mean what you wrote here.
The art.2 of 1907 is clear about it - in case at least one of the beligerents was a nonsignatory the provisions did apply at all. Not just between the signatories, but AT ALL.

And than we face an other issue - Montenegro and Ottoman Empire signed the convention in 1907, but NEVER ratified it!!! Which, speaking from the “Treaty law” point of view, made the Convention 1907 unapplicable in WWI!!!

But we all know that did not happen in practice! And here we have situation where “Customary law” comes in to picture. You see, the signatories wisely chose not to depart from the Convention’s obligations, and doing it they excercised their “Customary law” rights to keep the treaty nonetheless, regardless of formal opportunity not to do so.

So we approach, IMHO, the core issue - both “Treaty law” and “Customary law” are equaly the part of the internation law.

You don’t believe this – no problem, just follow this link: http://books.google.hu/books?id=6QjrSHfoEiAC&pg=PA181&lpg=PA181&dq=Geneva+convention+1929,+obligatory+clausule&source=web&ots=5qLIcxjUL6&sig=aKiKXM3W8iXTmo2OzM_fdBD0GFk&hl=en&sa=X&oi=book_result&resnum=6&ct=result#PPA180,M1

I will readt it.

Another direct explanation is mentioned in the very preamble of the Convention:The 1929 Convention had already departed from it by stating in the second paragraph of Article 82 that “in time of war, if one of the belligerents is not a party to the Convention, its provisions shall, nevertheless, remain binding as between the belligerents who are parties thereto”. Thus the provisions concerning prisoners of war were given the binding force. The fact that one of the belligerents was not a party to the Convention could no longer nullify its applicability.

Right! I do understand that The fact that one of the belligerents was not a party to the Convention could no longer nullify its applicability.!
But it is applicability as between the Convention participants. NOT the participants in the conflict.

And if you think that generally known paragraph signed by General Reinecke on the 8th September, 1941 which stated that: "The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the U.S.S.R. Therefore only the principles of general international law on the treatment of prisoners of war apply. - is valid in this case – you are wrong! In point of fact, Kanaris and Reinecke were just a little bit more concerned for their own skin!

I quoted the German directive only to show what Germans self thought of it.
I am not stating that German official position itself created or modified the general international law.