This will prove that this subordination of the Inspector of concentration camps to the defendant Oswald Pohl and the incorporation of the inspectorate into the economic and administrative main office was caused exclusively by the in satisfactory state of the German labor market during that time. It is no accident that at the same time, namely 12 March 1942 Gauleiter Sauckel was promoted Plenipotentiary General for Labor Allocation (Arbeitseinsatz) and that the Plenipotentiary for the Four Year Plan Goering transferred to him the authority which was his due in his capacity within the framework of the labor allocation. The incorporation, for purposes of organization, of the Inspectorate of concentration camps in the economic and administrative main office was forced only by the economic necessity, of incorporating the labor inside the concentration camps into the general mobilisation and of employing them usefully and of excluding every uneconomical utilization of labor as was in may instances the case in the camps up to this time. It will also be the task when presenting the evidence to set forth in detail those measures which the defendant Oswald Pohl adopted in the performance of his task and also which directives had been given him.
But already at this time the attention should be drawn to a fact which to a large part follows from the very evidence offered by the prosecution itself; namely that the tasks of the defendant Oswald Pohl were r e s t r i c t e d and that general administrative and executive matters connected with these camps were not within his competence but were still handled directly by the agencies which had been in charge of them before. This applies in particular to the position of the Inspectorate of the Concentration Camps itself. It was by no means so that after 3 March 1942 when the Inspectorate of the Concentration Camps had been incorporated into the WVHA, it had the same standing within this main office as the other subdivisions which for many years had been charged with certain specialized functions and therefore had that standing within the larger body as a matter of course. The fact has to be stressed even now that the administrative incorporation of the Inspectorate of the Concentration Camps into the WVHA was only intended for the duration of the war and that this incorporation did by no means change the independent position of the Inspector of the Concentration Camps - with the exception of labor allocation matters. Also, the Inspectorate of the Concentration Camps did not move its offices to the office building of the WVHA in Berlin, even after 3 March 1942 but they remained at Oranienburg. It is a fact which we shall prove that the Inspectorate of the Concentration Camps, even after its incorporation into the WVHA did not lose any part of its independence and within the WVHA was always looked upon as a foreign body.
Even the very evidence submitted by the prosecution shows clearly that nearly all matters not immediately connected with labor allocation were handled by the offices of the Inspectorate of Concentration Camps without the chief of the WVHA or the other subdivisions or offices of the WVHA being concerned with them.
The defense will consider it as its task to prove in detail the manner and the extent of the operation which developed between the defendant Oswald Pohl and the Inspector of the Concentration Camps with regard to labor allocation.
The evidence of the prosecution shows, moreover, that the administrative incorporation of the Inspectorate into the WVHA, did not effect any changes in the competences still appertaining to the Secret State Police (Gestapo) and the other offices of the Reich Security Main Office. This applies in particular to the commitment to, and the release from, concentration camps, both of which were exclusively a matter of the Reich Security Main Office and upon which the WVHA had no influence at all.
As part of the evidence the prosecution showed several films which were to show the general conditions in these camps after the collapse of Germany in May 1945. The fact, however, that the conditions shown in those films can not be regarded as typical for the general conditions in these camps before and during the war does not need special emphasis. The heavy air raids of the allied Air Forces against the German home-front and especially the lines of communication, resulted in a collapse of the communication system and the economic life as such, which heavily aggravated conditions of life in Germany even outside the camps. The conditions in the camps were bound to become more intolerable as more and more concentration camps were evacuated upon the approach of the Allied Armies, that more and more concentration camps were evacuated which had the result that in the few remaining camps the prisoners were over-crowded to such an extent that it became impossible to carry out sufficient feeding and even limited hygienic conditions for any length of time.
The defendant Oswald Pohl and the Office under him can not be held responsible for this decline in the living conditions in the camps. Through an order of the Reichsfuehrer-SS, the concentration camps came under the jurisdiction of the responsible Higher SS and Police Fuehrer, in in whose district the camp was located, in the so-called "A-Case" - that is when threatened by the enemy. He alone had to decide whether the inmates of the camp were to be evacuated or whether the camp with all prisoners was to be turned over to the advancing Allied Troops.
4.) The inclusion of the labor strength of the prisoners in the armament economy was the immediate cause and purpose of the organizational coordination of the Inspectorate of the Concentration Camps into the WVHA. The defendant Oswald Pohl does not deny having done everything possible to utilize the labor strength of the prisoners in a manner beneficial to the conduct of the war, and he does not deny that in doing so he made demands, with regard to the hours worked which made considerable demands on the capacity for work. The following has, however, already been pointed out by the evidence of the defense:
The collapse of the offensive of the German Armies before the gates of Moscow in the Winter 1941/1942 and the entry of the United States into the war had the result that Germany had to make plans for a long war. If, up to Spring 1942 any doubts should have existed as to the length of the war and the dangers to the living conditions of the German people caused through this war, these doubts would have to be removed definitely through the political and military developments which have arisen. These developments placed before the Government of the Reich the necessity, of drawing all possible labor strength from the German people.
Naturally, at a time when all German workers were in the factories daily for twelve hours or more and in which women with four or five children were given home work to do for the armament industry, the prisoners from the concentration camps would be drawn on for carrying out essential war work.
On the other hand, the evidence will show that the defendant Oswald Pohl did everything which could be undertaken by the Ministry by issuing appropriate regulations and by improving food and general conditions in the camps to maintain the labor strength. When, despite this, the working conditions in the camps and workshops steadily declined it was due largely to circumstances which were outside the jurisdiction of the defendant Oswald Pohl and which will be examined in detail in the presentation of evidence by the Defense.
In those examinations it will also be necessary to examine the conditions and circumstances under which the armament plants of private economy employed the prisoners of the concentration camps and which conditions had to be fulfilled before Department D and the Commandants of the camps could hand over manpower to these concerns.
It will then be the task of the legal summing-up, after presentation of all the evidence, to investigate the reasons excluding the illegality of the act and the guilt of the defendant which can be offered in defense of the defendant's conduct regarding the question of the allocation of labor in those cases as well in which foreign labor and prisoners of war were assigned, and their final justification in those particular circumstances which were caused by the war and wartime conditions.
5.) An extensive part of the prosecution evidence material refers to Department W and the economic undertakings of the WVHA. It is difficult to tell from many of the documents put forward by the prosecution as to how far they should be considered as material evidence in the judgment of the conduct of those defendants and with regard to the charges brought against them. It seems all the more necessary that the defense should set forth in detail the reasons which the Reichsfuehrung of the SS set forth, as opposed to the general economic principles announced by the Staatsfuehrung which amount to the same thing as the support of private enterprise, even in founding economic concerns and in entering into competition with private economy.
In this connection there will also be an opportunity of investigating the property and other law conditions with regard to those concerns, and of examining the question of who owned the business shares of the Deutsche Wirtschaftsbetriebe (German economic plants) G.m.b.H. and who financed this holding company and the other undertakings which it controlled.
At this point it should be mentioned that of the total investments in these concerns, both in money and in kind, 38 millions came from Reich sources and only 7 millions were provided by the National Socialist Party. The defendant Oswald Pohl was not the actual owner of the DWB shares, but was only the trustee.
6.) The defendant Oswald Pohl is accused in the indictment of being particularly responsible for carrying out medical experiments in the concentration camps. The evidence in this case and in the proceedings before Military Tribunal No. 1 has shown that in actual fact experiments were made on prisoners in the concentration camps in the interests of the German Wehrmacht. The evidence has also shown, however that the defendant Oswald Pohl did not participate directly in carrying out these experiments.
It will be the task of the defense to use the evidence to investigate thoroughly of which experiments the defendant Pohl was aware, whether and to what extent he supported the experiments and if, by reason of his position it would have been possible for him to prevent the experiments from being carried out.
7.) The defendant Oswald Pohl is also accused in the indictment of responsibility for and participation in the so-called final solution of the Jewish question. The evidence in Case No. 1 against Hermann Goering and others before the International Military Tribunal showed that the order for the extermination of the Jews was given as early as the summer of 1941, that is to say, at a time when the WVHA had no connection, administratively or otherwise, with the camps where these measures were carried out. But the evidence before the International Military Tribunal has also shown that there were special agencies and persons who were charged with the execution of this order, as for instance the Office IV B of the Reich Security Main Office under SS-Obersturmbannfuehrer Eichmann and SS-Gruppenfuehrer Glebocnik, - who had no connection, administratively or otherwise, with the WVHA, and all of whom received their orders immediately from Reichsfuehrer SS Himmler, all necessary measures having been taken to guarantee the greatest possible secrecy. In this connection I refer to the statements of the witnesses Wislizeny, Hoess and Morgen before the International Military Tribunal. It may be pointed out also, even now that the extermination camps Treblinka, Belsec, Maidaneck and others did not belong into the domain of the inspection of the concentration camps, and therefore even after 3 March 1942 were not subordinated to the defendant Oswald Pohl, not even nominally or administratively.
I also should like to add that the WVHA, as directed by the defendant Pohl, was only an administrative office which had no executive organs whatsoever, and that an immediate participation in a number of acts which constitute the object of the indictment, would appear impossible if it were for that reason only.
8.) Extensive evidence was submitted by the prosecution in connection with the action Reinhardt. Several agencies were in charge of the execution of this action, among them the higher SS and Police leader East and the SS and police Fuehrer Globocnik.
The WVHA as such had at first nothing to do with this matter. It was brought into it only when the action was approaching its end, and certain enterprises near Lublin had to be taken over by the WVHA and, beside the audit of the received assets, negotiations with several other supreme Reich offices as for instance the Reich Finance Ministry and the Reichsbank, had to be conducted for the purpose of assuming title to these assets.
It will be the object of the evidence of the defense to establish in detail the participation of the defendant Oswald Pohl in the wind-up of this action and to examine the legal aspects resulting in this connection.
9.) The prosecution also submitted extensive evidence in order to prove a participation of the defendant Oswald Pohl in the measures which led to the obliteration of the Warsaw ghetto. The evidence of the prosecution proves that the establishment of the Warsaw ghetto and its transformation into a concentration camp was in the first place the task of the Higher SS and Police Leader East. The documents submitted by the prosecution show, moreover, that the obliteration of the Warsaw ghetto was carried out by the director of the Reichsfuehrer SS Himmler under the military supervision of the Higher SS and Police Leader East by the SS and Police Leader Warsaw, Juergen Stroop, who also submitted an extensive report on it.
In this connection it should also be mentioned that in the proceedings before the International Military Tribunal the prosecution made an effort to hold the former Governor General Hans Frank directly responsible for the obliteration of the Warsaw ghetto.
although the correspondence submitted now in this trial indisputably shows that neither the administration of the Government General nor the Governor General himself had anything to do with it, but that the obliteration of the Warsaw ghetto was an action which was carried out exclusively by the security police and the SD under the military direction of the competent local SS and Police Leaders, and with which neither the administration of the Government General nor that of the WVHA had anything to do.
The defense will consider it its task to ascertain by questioning the defendant Oswald Pohl himself whether the Reichsfuehrer SS informed him in advance of the existing intentions and plans and whether his position within the organization of the SS would have given him the possibility or power to prevent the obliteration.
No. 10) The defendant Oswald Pohl moreover is accused of being particularly responsible for the execution of the so-called euthanasia-program in the concentration camps. This program, which was executed in the concentration camps under designation "14 f 13", was initiated by a decree of Hitler of 1 September 1939. In this decree Reichsleiter Bouhler and the later Reich Commissioner for Public Health, Dr. Karl Brandt, were ordered "under their responsibility, to extend the authority of physicians to be appointed individually, in a manner that patients who, to the best of human knowledge, are incurable, can be granted the euthanasia, the prerequisite being a most discerning evaluation of their condition." The evidence in the proceedings before Military Tribunal I has shown that this program was discontinued again in autumn 1941, due to numerous letters of protest, above all from dignitaries of the churches.
POHL OPENING STATEMENT The rest of evidence submitted by the Defense in this trial deals with the period before 3 March 1942, that is, a period in which the concentration camps were not yet included as Amtsgruppe D in the WVHA with a time limit, - for the duration of the war - and with a view to the fulfillment of certain tasks in connection with the labor supply and the conduct of the war.
It will be the task of the Defense to ascertain in detail whether and what the defendant Oswald Pohl learned about the measures connected with this Count of the Indictment.
Membership in Criminal Organizations.
In this Count the defendant Oswald Pohl is accused of membership in the SS, which has been declared a criminal organization by verdict of the International Military Tribunal. In the presentation of evidence on this Count, opportunity will be given to observe the career of the defendant, and to show the reasons which induced him as a pay master official in the Navy, to become a member of the National Socialist Party, and what circumstances led him to leave the Navy in 1934 and to take over a high office for the purpose of building up the SS administration.
Your Honor, I would like to add at this time that the main point of defense in the case of Oswald Pohl is based on the examination of the defendant Oswald Pohl himself at the witness stand. That, furthermore, I would like to start presentation of evidence in the examination of the defendant Oswald Pohl, and I would also like to call a few other witnesses with permission of this Tribunal after his examination.
THE PRESIDENT: You may follow any plan you wish in the presentation of your evidence. The Tribunal will be in short recess.
THE MARSHAL: The Tribunal is in recess for fifteen minutes.
(Recess)
THE MARSHAL: The Tribunal is again in session.
MR. ROBBINS: May it please the Tribunal, during the recess I showed Dr. Seidl the photostat of Exhibit 521 and he has withdrawn his objection to that exhibit. That is the affidavit by Dr. Ding-Schuler.
DR. SEIDL: (For defendant Pohl): May it please the Tribunal, I have convinced myself that on the photo copy of the original of the affidavit by Dr. Ding-Schuler there is contained the proper form of oath, and therefore apparently it was only in the German copy of the document book that the usual form was left out, and therefore I withdraw my objection.
THE PRESIDENT: The next counsel.
DR. RAUSCHENBACH: (For Defendant august Frank and Hans Loerner): May it please the Tribunal, I am not quite sure if the translation of my opening speech has already been completed, that is, the defense of August Frank.
THE PRESIDENT: We have your statement as to the Defendant Hans Loerner but not Frank.
DR. RAUSCHENBACH: The opening speech for Hans Loerner. However, I want to read that after the opening speech for August Frank because it refers to very important places in the defense of Hans Loerner, and cannot keep thou apart in this matter. I, therefore, would like to suggest that one of the other defense counsel whose translation has already been completed should now continue and present his opening speech. In the meantime I shall try to obtain the translation.
THE PRESIDENT: Very well.
DR. VON STACKELBERG (For defendant Karl Fanslau): I assume that the Tribunal has my translation of the opening speech?
THE PRESIDENT: Yes, we have.
The Tribunal once referred to the proverb: "Mitgefangen, Mitgehangen" (page XXIII of the German translation) in sentencing former General Fieldmarshal Erhard M i l c h. This phrase originating in common parlance is based on old conceptions of collective guilt and collective responsibility, which, in the meantime, may be considered as since outgrown in German penal law.
The Tribunal itself applied this principle only to the participation in an active. I may underline this limitation by referring to a positive rule of American Military Law that is the Manual of military Law 1929, Amendments No. 12, Sect.449:
"Charges of war crimes may be dealt with by Military Courts or by such courts as the belligerents concerned may determine. In every case, however, there must be a trial before punishment, and the utmost care must be taken to confine the punishment to the actual offender". I intend to handle the defense of the defendant Fanslau, accepting the limitation of the punishment to individual guilt and in reverence before the holy principles of eternal law.
Main Part A.
I.
The defendant Fanslau has been indicted on 4 points as
1) having participated in an alleged Conspiracy or an alleged Common Plan to commit War Crimes and Crimes against Humanity.
2) having committed or participated in War Crimes,
3) having committed or participated in Crimes against Humanity,
4) having been a member in an organization which has been declared criminal by the International Military Tribunal.
II.
The question as to which points of the indictment are to be considered established by the evidence produced by the prosecution must be examined first. I thereby shall proceed from the principle that every person accused of a crime is originally presumed to be innocent and that he is protected by this presumption until his guilt has been established by proof beyond reasonable doubt, a principle expressly recognized by the Tribunal in its judgment against Erhard Milch (page VIII of the German translation).
The examination of the evidence produced by the prosecution is difficult for the defense.
It is true, the prosecution has produced an extraordinarily large amount of evidence, and with an almost breath-taking pace. But it has failed to show the connection between this evidence and the defendant Fanslau, and also which of the crimes he has been charged with, that must be proven by it in each particular case.
I, myself, have of necessity undertaken this examination which, in my opinion, should have been the task of the prosecution. I thereby arrived at the conclusion that the evidence, producted by the prosecution, is not sufficient to prove points I to III against the defendant Fanslau. The name of the defendant Fanslau appears only in 7 of the 571 documents introduced. An additional one deals with his domain. They do not contain anything incriminating. None of the witnesses has mentioned the defendant Fanslau or even made any incriminating statements as to his field of work.
In particular I want to mention the following:
1) To Count I: No proof whatsoever has been furnished for the actual existence of an alleged conspiracy or an alleged common plan. According to Anglo-American law conspiracy is (I am citing Black, Law Dictionary 1933) and I quote: "A combination or agreement between two or more persons for accomplishing an unlawful end or a lawful end by unlawful means". That is the end of the quotation. Proof has not been furnished, where, when, and by whom such an agreement was allegedly concluded. I must, therefore, assume, that the prosecution considers organizing of and belonging to the WVHA a conspiracy and tries to support this view by circumstantial evidence. The prerequisite for the success of this attempt would require the furnishing of proof that members of the WVHA committed co-ordinated acts, from which a plan or a common purpose underlying these acts can be established. However, this has not been done at least in regard to the defendant Fanslau. The prosecution itself has brought forth that the WVHA has been organized by merging the administrative and Economic Main Office of the SS and the Budget and Building Main Office of the Reich Ministry of the Interior, as well as the Administrative Office in the Operational Main Office with the defendant Pohl as chief.
Only later the defendant Pohl was put in charge of the Office of the Inspectorate of Concentration Camps and it was officially joined with the WVHA as Amtsgruppe D. No evidence has been furnished to the effect that the defendants took over their offices in the WVHA voluntarily, and that their tasks and actions were co-ordinated. Thus it is already evident from the evaluation of the evidence presented by the prosecution:
a) that the WVHA was created because tasks of a most diverse nature were put in the hands of the defendant Pohl on orders of a higher authority.
b) The WVHA was founded in successive stages.
c) The defendants took over their offices on orders and not voluntarily.
d) The tasks of the defendants, and accordingly their actions, were not uniform, but covered the most diverse domains. These points unequivocally speak against the assumption of a conspiracy or a common plan among the defendants.
2) As points II and III of the indictment it has been established, it is true, that War Crimes and Crimes against Humanity have unfortunately, been committed. However, it hasn't been established by the evidence produced by the prosecution, that the defendant Fanslau has taken part in any one of them. The management and administration of concentration camps, the extermination of the Jews, the medical experiments, the Euthanasia program and the directing and supervising of work performed by prisoners was not in his domain. Although the defendant Fanslau knew of the existence of the concentration camps, he did not know of the inner administration and the atrocities committed there. He was not at all familiar with medical experiments and the Euthanasia program.
He knew nothing about the extermination of the Jews. The Reinhardt-Plan he did not even know by name. All that, the prosecution was unable to refute. I therefore request the court to quash proceedings against the defendant Fanslau as to Count I to III of the indictment, since the prosecution has failed to establish evidence charging the defendant Fanslau beyond the shadow of a reasonable doubt.
Main Part B.
In the event of this request not being granted I shall divide the defense for the defendant Fanslau into two main parts. They will consist, first, of the actual presenting of evidence, and second, of detailed legal arguments regarding Law No. 10 of the Control Council and the indictment.
I.
The material facts are as follows:
1.) Count I of the indictment charges the defendant Fanslau with the alleged participation in a conspiracy or a plan to Commit War Crimes and Crimes against Humanity. I have set forth that from the statements of the prosecution it is already evident that, the WVHA has not been organized in the execution of a common plan or purpose, but because tasks of various natures have been combined in the person of the defendant Pohl on orders of a higher authority. In addition -- without assuming a special burden of proof -- I shall submit evidence:
a) that the organization of the WVHA has been accomplished in consequence of the Fuehrer principle and not by the free choice of its later members,
b) that the merger of the former Administrative and Economic Main Office on the one hand and the Budget and Buildings Main Office on the other hand, as well as the Administrative Office in the Operational Main Office, into the WVHA was effected on 1 February 1942,
c) that the defendant Fanslau had already been appointed Chief of the Office A V in WVHA at this date,
d) that the Office of the Inspector of Concentration Camps was only incorporated as Amtsgruppe D on 1 April 1942 and that the defendant Fanslau had not participated in the previous discussions.
e) that the Amtsgruppe D was only subordinated to the defendant Pohl, without entering into closer relations with the Amtsgruppe A and that especially the separation as to territory and subject matters was retained -- in questions of personnel as well,
f) that the domains of all Amtsgruppen of the WVHA were completely independent of one another, and that especially the Amtsgruppe handled almost exclusively the requirements of the military administration and therefore served other purposes than the Amtsgruppen C, W and D.
By this evidence I hope to refute unequivocally any reasonable suspicion even if it were only prima facie, of a conspiracy or a common plan to commit War Crimes or Crimes against Humanity with regard to their existence, as well as concerning the participation of the defendant Fanslau especially.
2. Counts II and III of the indictment charge the defendant Fanslau with the committing of, or participation in War Crimes and Crimes against Humanity. The prosecution has established proof that, unfortunately, War Crimes and Crimes against Humanity have been committed. I shall prove -- without assuming a special burden of proof hereby -that the defendant Fanslau did not participate in those crimes even according to the stricter definitions concerning participation of Law No. 10 of the Control Council.
The indictment itself does not state, that the defendant Fanslau has been principal, accessory or instigator in the commission of these crimes. There would be no evidence for such an assumption. Therefore I only have to examine the definitions of participation in article II, paragraph 2 c to e of Law No. 10 of the Control Council.
a) According to Article II, paragraph 2 c, any person who took a consenting part in a crime, is liable to punishment. I believe that I may conclude from the judgement of the Tribunal in the case against Erhard Milch, that a participation according to this penal regulation is only to be assumed:
aa) if the defendant has knowledge of the intended crimes, bb) if he had this knowledge in time to undertake steps to prevent these crimes, and cc) if the defendant had the power to prevent these crimes.
I shall present evidence that the defendant Fanslau had no knowledge whatsoever of the crimes mentioned in the indictment, which have been proved by the prosecution, and that his official position and his official activity could not convey this knowledge to him,
b) According to Article II, paragraph 2 d, any person who was connected with plans or enterprises involving the commission of crimes as defined in article II, paragraph 1, is liable to punishment. The evaluation of this definition causes me some difficulty, because this far-reaching concept of "participation" is now know to me, neither in the German, nor in the National Penal Code or any other State. I also do not believe that this penal regulation applies to the mere existence of an objective connection without any reconsideration of the subjective knowledge. I only want to point out, as a matter of precaution, that membership in the WVHA does not establish a connection as defined in this penal regulation. The WVHA was no uniform authority, but owed, as was mentioned several times before, its existence to the fact, that, in the person of the defendant Pohl, the most diverse domaines were united, which were not connected with each other materially or became connected materially by their merger.
c) According to article II, paragraph 2 e, a person, who was a member of any organization of group connected with the commission of a crime as defined in article II, paragraph 1, is liable to punishment. That is to say, that he was a member of any organization or group connected with the commission of a crime. By submitting the pertinent statements in the judgment of the International Military Tribunal I shall prove, that, the prerequisite for the application of this penal regulation is is the existence of any organization or group for a common purpose, analogous to a conspiracy.
This rule does not apply to members who had no knowledge of the criminal purposes or acts of the organization or group. As already stated, this holds true in the case of the defendant Fanslau in his capacity as member of the WVHA.
3) Count IV of the indictment charges the defendant Fanslau with membership in the SS, an organization declared criminal by the International Military Tribunal. With reference hereto, I shall submit extracts from the judgment of the International Military Tribunal from which it will be evident that, members who had no knowledge of the criminal purposes or acts of an organization do not crime within the scope of this penal regulation, and that, punishment imposed, in any case, may not exceed the punishment proscribed by the De-Nazification Law of 5 March 1946. Furthermore, I shall submit evidence on the unobjectionable personal attitude of the defendant Franlau, which characterises him as an honorable soldier.
II As to the legal aspects I shall discuss the following:
1). Law No. 10 of the Central Council in general. Here an examination of the question seems worthwhile, whether this law was enacted by the Control Council in its capacity as the executive agency of the occupation forces, thus exercising German Judicial sovereignty, or whether it is the expression of an international legal principle.
a) In the first place I shall demonstrate, that the law is in direct contradiction to the principles of a constitutional state, insofar, as it declares punishable ex post facte, now criminal acts such as e.g. extermination, slavery, persecution for political, racial and religious reasons and the wider forms of participation. It violates that inalienable principle which prohibits punishment pursuant to a law, not in existence at the time of the commission of the act. To support this contention I shall submit, in extracts, the opinion of the International Tribunal in Hague of 4 December 1935 and a statement from the constitutions of 30 of the most important civilized states as well as the pertinent rules of the Weimar Constitution and the new German Constitutions in Bavaria, Wuerttemberg and Greater-Hesse.
b) In the second place, if the law is to be considered as an expression of an international principle, I shall contend that it violates the eternal principle of equality. In its preamble and in Article I, it is directed only against war criminals of the former Axis Powers and thus does not apply to the present and the future. The acknowledgment of on international principle would also require the enactment of similar laws in other states.
2) Furthermore I intend to deal with crimes against humanity and to examine.
a) whether a separate crimes is at all involved -- His Honor Judge Musmanno, in summing up his opinion on Erhard Milch examined this question, if I have correctly understood it, only in regard to deportation to slave labor (Pages 79/80 of the German transcript)--,
b) what is covered by this definition -- with regard hereto we will have to analyze the argumentations published thus far in scientific literature, particularly Aroneanus's theory of the "Criminal State"; the opinion of the District Court at Konstanz in the case of Tillessen, which goes even further; and
c) how far the principle of the Sovereignty of States, with regard to acts perpetrated by Germans against Germans, precludes the assumptions of a crime against humanity, and bars jurisdiction of a foreign court.
3) Furthermore, the definition of conspiracy should be more closely examined. I shall try to prove here that Law No. 10 of the Control Council does not provide punishment for a conspiracy to perpetrate War Crimes and Crimes against Humanity, as can be gathered -- as argumentum e contrario - from the manner in which Article II Paragraph 1 a is worded. An application of the 1 gal principle of the criminality of a conspiracy, commonly known in Anglo-American law, would, for reasons of "nullum crimen, nulla poena sine lege" hardly be admissible ex post facto to German nationals in Germany.