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Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) [Advisory Opinion I.C.J (1950)]

Doctrine: Member States of the United Nations are bounded by its mandates and violations or
breaches results in a legal obligation on the part of the violator to rectify the violation and upon
the other Member States to recognize the conduct as a violation, and to refuse to aid in such
violation.

Facts: Under a claim of right to annex the Namibian territory and under the claim that Namibia’s
nationals desired South Africa’s rule, South Africa began the occupation of Namibia (formerly
South West Africa). In 1966, the United Nations General Assembly issued a resolution stating
that South Africa’s continued mandate from the League of Nations to Namibia was terminated.
The General Assembly concluded that South Africa breached the mandate and that South
Africa had no right to administer Namibia’s territory. The General Assembly recalls that the
entry into force of the UN Charter established a relationship between all members of the UN on
the one side, and each mandatory power, on the other, and that the fundamental principles
governing that relationship is that the party which disowns or does not fulfill its obligation cannot
be recognized as retaining the rights which it claims to derive relationship. South Africa ignored
the General Assembly’s resolution. The United Nations Security Council considered the
situation, thus the Security Council reaffirmed the General Assembly’s resolution and stated that
South Africa’s continued presence in Namibia was illegaland called upon other Member States
to act accordingly. South Africa remained unresponsive to this resolution. The Security Council
requested an advisory opinion from the International Court of Justice on the following questions:
“What are the legal consequences for States of the continued presence of South Africa in
Namibia, notwithstanding Security Council resolution.

Issue: Are mandates adopted by the United Nations binding upon all Member States so as to
make breaches or violations thereof result in a legal obligation on the part of the violator to
rectify the violation and upon other Member States to recognize the conduct as a violation and
to refuse to aid in such violations?

Held: Yes. Member States of the United Nations are bounded by its mandates and violations or
breaches results in a legal obligation on the part of the violator to rectify the violation and upon
the other Member States to recognize the conduct as a violation and to refuse to aid in such
violation. Member States are also under the obligation to abstain from certain acts and relations
with the violator State. As Member States, the obligation to keep intact and preserve the rights
of other States and the people in them has been assumed. So when a Member State does not
toll this line, that State cannot be recognized as retaining the rights that it claims to derive from
the relationship.

In this particular case, the General Assembly discovered that South Africa contravened the
Mandate because of its deliberate actions and persistent violations of occupying Namibia.
Hence, it is within the power of the Assembly to terminate the Mandate with respect to a
violating Member State, which was accomplished by a resolution in this case. The resolutions
and decisions of the Security Council in enforcing termination of this nature are binding on the
Member States, regardless of how they voted on the measure when adopted. South Africa is
therefore bound to obey the dictates of the Mandate, the resolution terminating it as to South
Africa, and the enforcement procedures of the Security Council. Once the Mandate has been
adopted by the United Nations, it becomes binding upon all Member States and the violations or
breaches of this Mandate result in legal obligations on the part of the violator to rectify the
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violation, and upon the other Member States to recognize the conduct as a violation and to
refuse to aid in such violation.

NOTES
1. A mandate is a binding obligation issued from an inter-governmental organization (e.g. the
United Nations) to a country which is bound to follow the instructions of the organization.Before
the creation of the United Nations, all mandates were issued from the League of Nations which
based its mandates from self-determination and independence. When the League of Nations
was dissolved, the original object of these obligations remained. Since their fulfillment did not
depend on the existence of the league, they could not be brought to an end merely because the
supervisory organ had ceased to exist. The Members of the League had not declared, or
accepted even by implication, that the mandates would be canceled or lapse with the dissolution
of the League. The Court observes that the United Nations, as a successor of the League,
acting through its competent organ, must be seen above all as the supervisory institution
competent to pronounce on the conduct of Mandatory.
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United States v. Josef Altstoetter, et al. [The Justice Case]


Law No. 10. 1946-1949, Vol. III (1951). Opinion and Judgment, at 954-84

FACTS:In February 1947, the U.S. Military Government for Germany created Military
Tribunal III to try sixteen important German judges and legal officials (including Josef
Alstoetter, defendant), nine whom were officials in the Reich Ministry of Justice, while
the others were members of the People's and Special Courts. The defendants were
arraigned on February 17, all pleading not guilty to the charges against them.
The indictment listed four counts, with all the defendants charged with the first three:
conspiracy to commit war crimes and crimes against humanity; war crimes against
civilians of territories occupied by Germany and against soldiers of countries at war with
Germany; and crimes against humanity, against German civilians and nationals of
occupied territories. The fourth count of the indictment charged seven of the defendants
with membership in the SS, SD, or the leadership corps of the Nazi Party, all of which
had been declared criminal organizations a year before by the International Military
Tribunal.
The United States of America, by the undersigned Telford Taylor, Chief of Counsel for
War Crimes, duly appointed to represent said Government in the prosecution of war
criminals, charges the defendants with"judicial murder and other atrocities, which they
committed by destroying law and justice in Germany, and then utilizing the emptied
forms of legal process for the persecution, enslavement and extermination on a large
scale". Their participation in a common design or conspiracy to commit and did commit
war crimes and crimes against humanity was defined in Control Council Law No. 10,
duly enacted by the Allied Control Council on 20 December 1945. These crimes also
included murders, brutalities, cruelties, tortures, atrocities, plunder of private property,
and other inhumane acts, as set forth in counts one, two, and three of this indictment.
The trial opened on March 5 and the final statements of the defendants were heard on
October 18. Military Tribunal III returned its judgment on December 3 and 4, finding ten
of the defendants guilty and acquitting four. Two defendants were not included in the
judgment as one died before the trial began and the case of the other was declared a
mistrial because he had been too sick to attend much of the trial. The court announced
its sentences on December 4, sending four of the guilty defendants to prison for life and
six to prison for terms ranging between five and ten years.
ISSUE/s: 1. Is the Control Council the source of the military tribunal power and
jurisdiction to punish violations of international law?
2. Are violations of laws and customs the only offenses recognized by international law?
3. Can the principle of nullumcrimen sine lege be used as a defense to international
crimes since the ex post facto rule is not applicable to international law?
DOCTRINE:The jurisdiction of international tribunals is based on international and not
domestic law, and their authority to try offenses against international law and crimes
against humanity is not limited by territorial boundaries, the general prohibition against
ex post facto laws, or the principle nullumcrimen sine lege.
HELD:
1. Yes. The Control Council, as an international body temporarily governing Germany is
the source in which the military tribunal draws its power and jurisdiction to punish
violations of international law. A state with a functioning government have always been
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recognized take decision to punish war crimes of perpetrators that come within the
state’s jurisdiction, but at the state’s discretion, but this is not the case in this situation
because there was no functioning German government. This implies that the
punishment of violations of international law in Germany is not dependent on the
enactment of rules of substantive criminal law that are applicable only in Germany. But
the military tribunal has the power to punish the violations of the common international
law because Germany is under the control of the Control Council which is an
international body that has assumed and exercised the power to establish judicial
machinery for the punishment of such violations. If the state had a functioning national
government that could exercise its sovereignty, such an international body would not be
able to exercise such power without the consent of the state.
NOTE:This universality and superiority of international law does not necessarily imply
universality of its enforcement. As to the punishment of persons guilty of violating the
laws and customs of war (war crimes in the narrow sense), it has always been
recognized that tribunals may be established and punishment imposed by the state into
whose hands the perpetrators fall. These rules of international law were recognized as
paramount and jurisdiction to enforce them by the injured belligerent government,
whether within the territorial boundaries of the state or in occupied territory, have been
unquestioned.
However, enforcement of international law has been traditionally subject to practical
limitations. Within the territorial boundaries of a state having a recognized, functioning
government presently in the exercise of sovereign power throughout its territory, a
violator of the rules of international law could be punished only by the authority of the
officials of that state.
2. No. Violations of laws and customs of war are not the only offenses recognized by
International law.
C. C. Law 10 is not limited to the punishment of persons guilty of violating the laws and
customs of war in the narrow sense; furthermore, it can no longer be said that violations
of the laws and customs of war are the only offenses recognized by common
international law. The force of circumstance, the grim fact of world-wide
interdependence, and the moral pressure of public opinion have resulted in international
recognition that certain crimes against humanity committed by Nazi authority against
German nationals constituted violations not alone of statute but also of common
international law
The Court holds that crimes against humanity as defined in C. C: Law 10 must be
strictly construed to exclude isolated cases of atrocity or persecution whether committed
by private individuals or by governmental authority. As we construe it, that section
provides for punishment of crimes committed against German nationals only where
there is proof of conscious participation in systematic government organized or
approved procedures amounting to atrocities and offenses of the kind specified in the
act and committed against populations or amounting to persecutions on political, racial,
or religious grounds.
3.No.The principle nullumcrimen sine lege (“no crime without law”) cannot be used as a
defense to international crimes since the ex post facto rule is not applicable to
international law.Ex post facto prosecutions (nullmcrimen sine lege; nullapoena sine
lege) are prohibited by a basic precept of criminal law. Most of the crimes against
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humanity, such as genocide and mass killing, have already been determined as crimes
under every legal system. This therefore implies that it would be just under the ex post
facto principles to prosecute and punish perpetrators of these crimes, as these crimes
have merely been “internationalized” by the IMT Charter.
NOTE: The ex post facto principle does not apply to the field of international law in the
same manner as under domestic constitutional law. In the domestic arena, the ex post
facto rule functions to invalidate any statute that criminalizes actions engaged in prior to
the statute's implementation. However, international law is not based on statutes. There
is no central international body in charge of creating and passing statutes applicable to
the international community as a whole. Instead, international law is comprised of
treaties, judicial opinions, and customary international law. If the ex post facto principle
were applied to these sources, international law would never develop at all. Therefore,
under international law, the ex post facto rule is simply meant to operate as a guarantee
of justice before prosecution is permitted, requiring assurances that a person knew, or
was at least on notice, that his or her behavior constituted a crime.

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