Kluetgen continued to walk the streets, and no explanation was given as to why he was never tried. Finally, Hagemann came up with an idea that means of transportation and communication got kind of bad in Duesseldorf in late 1944-1945, but that was the best he could offer. However, he did reveal that he called that very able student of international law, that valient civil servant, that ardent protector of justice, Dr. Mettgenberg for advice, and that Dr. Mettgenberg informed him over the telephone and by letter that he was proceeding properly and should not do anything until at some distant date be could be permitted to question the Kreisleiter. Now the Kreisleiter may well have been guilty as an instigator, or as a principal in the second degree, aiding and abetting the killing, but there is no justification in law - even in Nazi law -- for failing to institute proceedings against Kluetgen immediately and proceedings later against the Kreisleiter. Of course, this whole thing was a sham and subterfuge. We timourously hope that eventually Hagemann will be tried for his part in this matter by our British Allies, particularly in view of the fact that the fliers both were Canadians.
Be that as it may, Mettgenberg reported regularly to Klemm; he was in Department IV under Klemm and unquestionably between the telephone call from Hagemann and the time he wrote the letter, he conferred on this grave decision with Klemm, because these matters, according to Thierack, had to be reported.
We now come to Exhibit 529, which was introduced on the 14th of July during the cross-examination of the defendant Klemm. This exhibit consists of the notations made by the Prosecutor Helm at Munich of the instructions given him.
by Ministerial Counsellor Mietschke on the 16 August 1944. Mietschke was Klemm's witness and testified that he went to Munich at Klemm's instructions. Helm was a Prosecution witness and testified that he wrote down the same day that Mietschke was there, instructions that Mietschke had given him (Tr. 9336).
We now feel obliged to insert the material parts of this document (the document also dealt with matters other than Allied fliers):
"Notation:
"At his visit today, Ministerial Councillor MIETZSCHKE put up the following points for discussion:
"I. Whenever flyers who had participated in a terror-raid have been killed by the population, the submission of a detailed report by the police cannot be dispensed with (decision of State Secretary KLEMM). The reason is that punishable behaviour, as f.i. acts from egotistical motives such as robbing the dead, deeds of vengeance against Germans who afterwards are dressed in the uniform of killed enemy flyers etc., must be excluded with certainty."
We now ask the court to read the revealing instructions on what was to be done in the case of Allied fliers and observe that the reason for making the report was that possibly some German might have killed another German. Not only is it a logical and reasonable inference that no report was wanted where Germans had killed Allied fliers which is consistent with the program, but more than that, if read in the light of the Thierack notation which Klemm had discussed with Hagemann, it will be remembered that Thierack said he wanted reports "for the purpose of examining the question of quashing". Now it is obvious that you did not need to examine the question of quashing unless you intended to quash. But it is also obvious that Mietzschke, at Klemm's direction, want to Munich to advise Helm that the Ministry of Justice was still interested in prosecuting Germans for killing other Germans under the guise that they had killed Allied flyers, but that he was not to prosecute any case in which an Allied flier's murder was involved.
The witness Mietzschke himself testified that he only went with instructions to tell Helm to report and that he received no instructions from Klemm to tell Helm to prosecute (Tr. 9326). From these primary facts, the Prosecution contends that it is clearly inferable beyond any reasonable doubt that Thierack placed the conduct of this program in the hands of Klemm; that Klemm cooperated fully in the program, and that in at least two instances - the case at Munich and the case at Duesseldorf - we have evidence of the way in which he acted. In the Munich case, he sent word to Helm that he was to prosecute only Germans who used the subterfuge of murdering Allied fliers as a cloak for murdering other Germans. In the case at Duesseldorf, we see that he positively encouraged Prosecutor Hagemann, through direction of his agent, Dr. Mettgenberg, to continue to pursue a policy which would guarantee that the SA leader involved would not be prosecuted for a plain cold blooded murder as Hagemann's description of the facts reveal (We are also entitled to ask the Court to recall that this is SA leader Klemm who is acting).
The Prosecution not only charges, therefore, that Klemm's part, recognized in common law as that of an accessory before the fact, if not a principal in the second degree, under the provisions of the law under which we act, is that of a principal, responsible for participating in a plan and enterprise which had its design and purpose to excite the German people to violate the Hague Conventions covering the treatment of prisoners of war, and that the corpus delicti of this crime is shown by the testimony of the witness McLendon and also by the testimony of Hagemann in that, in that instance, Hagemann, with Mettgenberg and Klemm, consenting, acted openly and flagrantly, so that all the other Nazi Party members down to the Ortsgruppenleiters, at least in the District of Duesseldorf would know that in the period from September 1944 until the end of the war in Hagemann's district, you could kill a shot down Allied flier with impunity.
This amounts to instigation to murder. The defendant Mettgenberg is also guilty under the evidence, for it was he who advised Hagemann, first by telephone and second by letter, that the evasive wrongful procedure which he was following was in line with the policy of the Ministry of Justice established by Thierack and administered by Klemm.
The crime is adequately alleged in the indictment in Count II thereof, paragraphs 8, 9 and 19. It is adequately alleged against the defendant Mettgenberg, for the mere fact that the paragraph states that the defendant Klemm was "charged with special responsibility for and participation in these crimes" docs not in law entitle any other defendant in the Dock, including the defendant Mettgenberg to say that the crime has not been adequately described and that his responsibility has not been adequately stated in paragraphs 8 and 9 of Count II.
If your Honors please, may I read The Sonnenburg Massacre so that we may read the crimes against humanity in the morning?
(Copy The Sonnenburg Massacre)
THE SONNENBURG MASSACRE From the Frau Leppin Affidavit 174 that Russian 174.
- Ex. 293, NG 741, Bk. VII, B. 34.
and Polish prisoners had been moved into Sonnenburg before the Sonnenburg massacre, the Court can conclude that the judicial facts to establish a war crime are present. However, under the facts this is equally a Crime against Humanity as a War Crime, and the Prosecution chooses to discuss it in its discussion of the Crimes against Humanity committed by the defendant Klemm.
THE PRESIDENT: The Tribunal will recess until tomorrow morning at nine-thirty.
(The Tribunal adjourned until 14 October 1947 at 0930 hours.)
Official transcript of Military Tribunal III in the matter of the United States of America against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 14 October, 1947, 0930-1630 The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III, Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There well be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honor, all defendants are present in the Court.
THE PRESIDENT: Before the argument commences, let the record show that this morning we have received Mettgenberg Book 6, Schlegelberger Supplement IV, Klemm Supplement X, all of which were referred to and disposed of yesterday morning. A few of the exhibits received only numbers for identification. The record will now show that all of those exhibits in the books to which I have referred have been received in evidence. You may proceed with the argument:
MR. KING: Crimes Against Humanity:
The Prosecution will discuss all types of Crimes against Humanity in this section instead of dividing them into categories of one or more major or basic crimes, as we did in our presentation of the subject of War Crimes.
The substantive crime, as pointed out in Appendix 3, is simple. It is one of the "atrocities of offenses" enumerated in the law, beginning with the offense of "murder" and ending with that of "persecution", which was committed on "racial, political or religious grounds". A domestic law condoning, authorizing or directing such a crime is not a defense, consequently obedience to such a law is no defense. Certainly, acts done to further the purpose of such a law cannot be pleaded as a defense, but on the contrary are affirmative evidence of guilt.
Therefore, where the substantive crime is so clearly shown a legal discussion of the questions of guilt may be limited almost wholly to a discussion of the relevancy and probative value of the evidence, and the ultimate facts inferrable from it. We shall devote most of our general discussion of these crimes to this field.
We choose also to divide these crimes into two basic classifications: First, those charged in Count Three of the Indictment, which took place after 1 September 1939, and, second, those charged in Count One of the Indictment, which took place before 1 September 1939.
The position taken by the Prosecution in U.S. v. Flick, 175 is that the crime is not committed by or during isolated flare-ups of racial, political or religious persecution. We contend, therefore, that Law 10, when properly construed, makes the crimes of murder, enslavement and imprisonment, normally national in character, international, when they follow a pattern of persecution on racial, political and religious grounds, or are performed, as they were in this case, in connection with a national plan or enterprise shown in this case to be national in scope, to commit them on racial, political or religious grounds. This does not mean, however, that the prosecution must show, as against any individual defendant that he, personally, committed so many crimes that they prove a personal determination or plan to commit the crime every time the opportunity arises, or in any over-whelming percentage of times. This is not the test. Using murder as an example, the test is this; did the defendant, 175 - U.S. v. Flick, Case No. 5, pp.
106-7.
"Private and occasional murders and sex offenses, such as unfortunately occur even in the most orderly and democratic nations, are not within its intendment. Nor, we believe, are localized outbursts of rare hatred, or petty discrimination, covered by the word "persecutions". At the opposite end of the scale are wholesale, nationwide campaigns, openly supported or connived at by the government, to make life intolerable for, to expel, to degrade, to enslave, or to exterminate large groups of the civilian population. Such persecutions, and murders enslavements or other inhumane acts committed in connection therewith, certainly fall within the scope of the definition."
on one occasion, act as a principal or accessory, or take a consenting part in, or was he connected with a plan or an enterprise, national in scope, if not indeed governmental in character, to murder human being, on racial, political or religious grounds, on which occasion a human being was in fact murdered? If so, he has committed Crimes Against Humanity.
The crime is personal to the defendant. The purpose, plan or enterprise -- to murder human beings on racial, political or religious 9720 a grounds - is national in policy and scope.
If we fail to keep before us this distination, we fail, as officers of the courts, also created by that law, to follow the purpose inherent in the plain, clear meaning of the law under which we function. But what is more serious, would be our failure to remember that in times of peace in the civilized nations of the world, yes, in this land of Germany, before the Nazis completely brutalized it, one murder on racial, political or religious grounds would have shocked the conscience of the community, and if proven in court beyond a reasonable doubt, would have resulted in a conviction given without question or qualm. Indeed, if we fail to clearly seat all tines the enormity of the crime of murder, of one human being, under the guise of judicial process, because the record in this case is so full of evidence of the murder of hundreds of thousands -including the dead who died in Mauthausen, Flossenbuerg and Auschwitz, we too will have become infected. And thereby we will have our own moral and legal perceptions dulled and destroyed by the brutalizing effect of evidence proving the existence of governmentally sponsored plans and enterprises, under which mass murder, based solely on a man's race, or his thoughts, or his prayers, were complaisantly accepted as the justifiable sacrifices demanded by the eruption into being of the omniscient and omnipotent Germanic plan for the world.
Before proceeding to discuss the evidence, it is necessary for the Prosecution to state its position upon the evidence which it considers to be more than adequate to establish under the proper application of the rules of law the guilt of the defendants, beyond a reasonable doubt, of crimes against humanity.
It is the position of the Prosecution that the Nazi Decrees both substantive and procedural, which are in evidence in this case,176 176.
NG 715, Ex. 112, Pros. Doc. Bk. II, contains most of them; also Ex. 625, NG 700; Ex. 624, NG 1807; Ex. 501, 2006 PS.
when considered against the background of Nazi philosophy and purpose, of which the evidence shows these defendants had knowledge, are of themselves evidence of a governmentally sponsored plan to create a legal and judicial system intended to be used to support a governmentally sponsored plan to murder? exterminate? enslave? imprison and persecute other human beings? including German residents? civilians and nationals? on racial? political and religious grounds. A study of these decrees against the background of Nazi seizure of power? initiation of aggressive wars? treatments of over-run peoples and the progress and development of the war? discloses such a regular and interesting pattern that the promulgation and administration of these laws is evidence of strong probative value of intent to commit Crimes against Humanity.
The first phase of Nazi activity after the seizure of power was the design and plan to consolidate power and to acquire a position from which Jews could be persecuted and opposition within Germany throttled and effectively eliminated. The first of the substantive laws passed in this period is the Decree for the Protection of People and State of 28 February 1933? thereafter follow in order? the law of 4 April 1933 against violent political acts; the law of 24 April 1934 amending the Penal Code and Code of Criminal Procedure; the Law of 20 December 1934; on treacherous acts against Party and State; the law of 28 June 1935 amending the Penal Code; the Nurnberg Laws of 15 September 1935 for the protection of German blood and honor marked the culmination or highlight of this period, and evidence the fact that the Nazis now felt that they had sufficient control of Germany to permit them safely and brazenly to present the bold implications of their domestic racial policy. In this same period in the field of procedural law, we find the Decree for the Formation of Special Courts of 21 March 1933; the law of 7 April 1933; the law of 7 April 1933 regarding admission to the Bar? which prohibited Jews from practicing law; the procedural provisions of the law of 24 April 1934 previously referred to, which included the establishment of the People's Court; the procedural provisions of the law of 28 June 1935 previously referred to, which included those "ready to hand" judicial weapons of oppression, "guilt by analogy" and "punishment according to the common sense of the people."
The second phase was the phase of consolidating and preparing the German economy for aggressive war. This phase is marked in the field of substantive law by the law of 1 December 1936 against economic sabotage, and the Decree of 17 August 1938 for a special criminal law in war time which prohibited, among other things, "the paralyzing" of the "defensive" power to bear arms not only of Germany but of a "nationallied" to her. In the field of procedural law, we did not introduce any similar counterpart, but the Decree of 14 April 1939. extending German jurisdiction into the Protectorate and denying jurisdiction to the Czechoslovakian courts is a forerunner of the policies carried out in the third and fourth phases.
The third phase is the phase of the preparing both substantive and procedural laws which are calculated to implement the war which IMT has Judicially found to have been aggressive and therefore, felonious. This phase in the substantive field with the Decree of 1 September 1939 concerning extraordinary measures with regard to radio; the bar Economy Decrees of b September 1939, the Decree of 3 September 1939 defining public enemies; the Decree of 3 December 1939 concerning violent criminals and the decree of 25 November 1939 providing additional penal provisions for the protection of the armed forces. In the procedural field, we have the procedural provisions of the Decree of 5 September 1939 against public enemies; the Decree of 15 September 1939 amending the Code of Criminal Procedure and introducing, among other things, that instrumentality of judicial criminality, the "extraordinary appeal"; and finally, the decree of 17 October 1939 granting to Himmler and his Empire, special jurisdiction over the activities of the SS and "police units for special purpose".The fourth period is the period of victory-flushed arrogance with its accompanying brutality towards all other races, including an openly declared policy for the extermination of Jews and gypsies, the enslavement of Poles, the killing of Russians and the terroristic oppression of Norwegians and the civilian populations of all the other overrun Western territories.
This phase begins in the field of substantive law with the Decree of 6 May 1940 extending German law in Poland; the law of 4 September 1941 further amending the criminal code and dealing with the subject of the habitual criminal) the 11th amendment to the German Citizenship law of 25 November 1941 depriving Jews abroad of citizenship and forfeiting their property) the notorious unlawful and criminal Decree against Poles and Jews of 4 December 1941; the Decree of 2 November 1942 which deprived Jews of citizenship in the Protectorate and provided for the forfeiture of their property; the not so notorious, but even more vicious 13th amendment to the German Citizenship Law, dated 1 July 1943, which removed all subterfuge and formally legalized Himmler's SS, Gestapo and police justice for Jews) and finally, the Decree of 10 November 1943 wherein the Nazis reached out for juveniles and made them for the first time subject to the death penalty. In the field of procedure, we find the Decree of 21 February 1940 extending the jurisdiction of the People's Court, the Special Courts and providing the second barrel to the weapon of judicial criminality, the nullity plea, to match the first barrel, the Extraordinary Appeal. We have also the procedural provisions of the Decree of 4 December 1941 against Poles and Jews) the Decree of 21 March 1942 simplifying the administration of justice so that extermination could move at a swifter pace; the decree of 15 July 1942 extending to the Czechs the benevolent jurisdiction of Himmler's SS and police courts; and the Decree of 13 August 1942 for further simplification of the criminal procedure in order that we can have a yet faster pace to extermination.
177 The fifth and final phase in the saga of Nazi domination typifies the conduct of all bullies and cowards.
This is the phase beginning after the break through at Carentan and the increasing victories of the Russians in the East. This phase is marked by whing and increased sadistic persecution of the German people because they had failed to provide enough bodies to successfully stoke the furnace of war for conquest, denying thereby to the Nazis the opportunity to match, with German blood, the blood of non-Germans consumed by the incinerators of Auschwitz, Dachau, Mauthausen and other Nazi extermination enterprises.
In the substantive field, we have here the Decree of 25 August 1944 for safeguarding total mobilization,178 and making negligence, which might adversely affect the war effort, a crime punishable by death. It is not without significance in this case that the defendant Herbert Klemm signed this decree.
In the procedural field, the final phase of this period of whining and sadism, is marked by the Decree of 15 February 1944 providing for civilian courts martial since even the speeded up Special Court procedure could not flog, with sufficient severity, the German people into sacrificing their blood uselessly in the Goetterdaemmerung of little men who had toyed with the idea of becoming twentieth century Wotans.
The defendant Klemm, and particularly the defendant Oeschey, distinguished themselves by the criminal executions they approved and performed with this judicial weapon.179 177.
This was one of the defendant Schlegelberger's last official acts.
178. Klemm, Exhibit 58, Book 7, page 16.
179. Pros. Ex. 499, NG 1395, the affidavit of Gen. Warlomont on the subject of German military disintegration after Stalingrad, corroborates our division into phases of the ebb and fall of the Nazi blood bath of Europe.
It is therefore the position of the Prosecution that it is established beyond a reasonable doubt that each of those defendants in this dock who was a prosecutor or judge of the People's Court, or a judge of a Special Court, or a judge of a Criminal Senate of the Court of Appeals, willingly sought or accepted, filled and held his position throughout his term, with full knowledge of the existence of a governmentally sponsored plan and enterprise, design, intent and purpose, to murder, exterminate, enslave, imprison and persecute human beings, including German residents, civilians and nationals on racial, political and religious grounds, and with full knowledge of the existence of a governmentally sponsored plan and enterprise, design, intent and purpose to create, operate and administer a legal and judicial system intended to be used to support, carry out, aid and assist the aforesaid governmentally sponsored plan and enterprise, design, intent and purpose to murder, exterminate, enslave, imprison and persecute human beings, including German residents, civilians and nationals on racial, political and religious grounds.
From these primary facts so established, the Prosecution further maintains that it is proven beyond a reasonable doubt, as the only logical and reasonable inference to be drawn from the established primary facts, that each of the defendants Lautz, Barnickle, Peterson, Nebelung, Rothaug, Oeschey and Cuhorst sought, accepted, filled and held his position, as prosecutor or judge respectively, with criminal intent to act in his official capacity as a principal or an accessory or to aid and abet, or to take a consenting part in, or to be connected with a governmentally sponsored plan or enterprise to murder, exterminate, enslave, imprison and persecute human beings, including German residents, civilians and nationals, on racial, political or religious grounds.
In order to establish the guilt of any of the foregoing defendants of a Crime against Humanity, it is only necessary to establish by the evidence beyond a reasonable doubt, one further ultimate fact; namely, that on one occasion, the defendant acted as a principal, or an accessory or aided or abetted a murder, an act of extermination, an enslavement an imprisonment or an act of persecution on racial, political or religious grounds or that the defendant, on one occasion, took a consenting part in or was connected with a plan or enterprise which resulted in a murder, an act of extermination, an enslavement, an imprisonment or an act of persecution on racial, political or religious grounds.
The issue to be determined in each case is whether the defendant involved acted judicially or whether under the guise of so acting, he used his power and authority as a prosecutor or judge to commit a murder, an act of extermination, imprisonment, or persecution on racial, political or religious grounds.
At the threshold of our discussion of this issue, we point out that the fact that a defendant had sought, accepted, filled and held a position of prosecutor or judge with knowledge of the Nazi purpose and Nazi legislation which we have previously reviewed, is of itself evidence that he acted with criminal intent while holding the position of prosecutor or judge.
We ask the court to further take into consideration evidence in this record of the following character, to wit:
Evidence which shows that one of the a forenamed defendants, given two or more statutes under which to indict or base a decision, chose that one which afforded or made mandatory the more severe penalty or asked for the application of or applied the severer penalty available in any one statute, which statute contained a range of penalties. If in such instances a defendant relies on the twin statutory devices of oppression, namely, "guilt by analogy" or punishment "according to the common sense of the people", or either of them, to justify his choice, we point out that the test of good faith of this defense is to be found in the rational or irrational thinking involved in applying the chosen statute to the facts presented at the time the choice was made.
Where the application of a statute to the fact is logically incomprehensible, this is evidence of strong probative value that the aforesaid devices were used for a criminal rather than a legal or judicial purpose. Extreme examples of this sort of thing are those cases where the evidence shows that even the devices of "guilt by analogy" is not sufficiently broad to justify the rationalization inherent in the judgment of the prosecutor or judge.180 180.
The Katzenberger case decided by Rothaug; the Schaps case, Pros. Ex. 631, NG 2286; where seven instances of Rassensohande involving not a scintilla of evidence of rape; resulted in the application of the dangerous criminal statute for the purpose of reaching a death penalty. This case was handled and approved by Joel while in the RJM.
We also contend that where the evidence shows that a trial was held in a non-judicious manner, even in a hippodrome style; that statements or confessions obtained by Gestapo or police opressive methods, known to the prosecutor or judge, were accepted and used in evidence against a defendant without any investigation on the part of the prosecutor or judge of the truthfulness of the statement or confession, or of their involuntary character; that cases were arbitrarily set for trial such a short time before trial as to seriously affect the ability of defense counsel to adequately prepare for trial; that the defendant, his counsel or his witnesses were brow beaten or coerced during the actual conduct of the trial; that there was a pre-trial conference and agreement between prosecutor and judge on the issues of guilt and the extent of the sentence; that there is such a disparity between the minor character of the offense and the severity of the penalty that it shocks the reason and the conscience, are each and all of them evidence of criminal intent.
Furthermore, if the evidence shows that one of the aforenamed defendants in the Dock has made a statement that his own action as a judge, or the purpose and function of the court on which he served was to exterminate asocial persons or groups in the community; if the evidence shows a long association with the Naxi Party and an acceptance of and belief in its purposes and aims, including specifically, those on the subject of race and territorial expansion; evidence of facts alleged in an indictment or statements or reasons given in a judgment from which it can be reasonably inferred that racial, political or religious grounds were used and considered as of evidentiary value in the indictment, or of evidentiary value in arriving at a decision in the case, all of these also are of probative value pointing to the guilt of the defendant.
The above review of the evidence is a comprehensive, but not all inclusive. Evidence of one or more of the facts above set out is present in all of the cases introduced into evidence by the Prosecution involving Crimes against Humanity, but additional evidence of probative value on the subject of guilt not included in the above review is also present in individual cases and will be called to the attention of the court when the cases of individual defendants are presented.
Finally, when the evidence discloses that the defendants in this case was a Jew, a gypsy, a Poly, a non-German, particularly a nonGerman from the East, or where the evidence discloses that the defendant was a German national who was a non-member of the Nazi Party; or a German national who was an alleged communist; or a German national who was rational enough to oppose the further hopeless prosecution of the war; or a German national who was critical of Hitler, the party, its local, Gau or national leaders; or a German national who was old and feeble or physically or mentally infirm; or a member of the Bible Believers; or a Protestant or Catholic who dared to oppose Hitler or the Party, or its local Gau or national leaders or their policies, and the evidence further discloses that one or more or all of the facts surrounding the trial of the case which we have here in above wet out in our comprehensive review were present, and that in that case there was a death sentence or an imprisonment rendered against the defendant than on trial, then, and in such case, the Prosecution in this case contends that the guilt of any of the aforenamed defendants of the commission of a Crime against Humanity is established beyond a reasonable doubt by the evidence in this record.
Heretofore we have discussed the substance of the crime defined in Control Council Law 10 and the sufficiency of the evidence to prove its commission. Where the same law established the jurisdiction to try the crime, it would seem that neither the court nor the prosecution should find it necessary to examine the question of the court's jurisdiction over the person and the subject matter. Likewise, where four powers join in enacting legislation, which any one of them could have enacted under the then prevailing status of international law 181and, also, 181 "The making of the Charter was the exercise of the sovereign legis lative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world.
The Charter is not an arbitary exercise of power on the pert of the victorious nations, but in the view of the Tribunal, there is no constitutional international government against which to measure the constitutional validity of the criminal legislations so enacted, it would seem idle, if not improper, to question the propriety or validity of the legislation so enacted.
The Prosecution has stated its position on this issue in U. S. v. Flick.183 Here we desire only to quote from the argument there made and to supplement it by pointing out, in language other than that there used, the validity of the fundamental position there taken.
It is important to remember that the Nazi Government deliberately chose to commit suicide in an act of spite and revenge against the German people. As the Prosecution pointed out, in U.S.v. Flick, 183 the very Crimes against Humanity against German non-Nazi leaders and thinkers, which we punish here and which also preceded the Nazi governmental suicide, created the governmental vacumn which existed con-currently with the complete and final success of the Allied Powers arms and their occupation of the geographic area which had been governed for twelve previous years by the Nazi Government. Therefore the Declaration by the Allied Powers of 5 June 1945 accurately recited the factual situation when it stated:
"There is no central government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country, and compliance with the requirements of the victorious powers."
181 (Continued) 181 (Continued) as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.
"The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations from the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court all that the defendants are entitled to ask is to receive a fair trial on the facts and law."
Mimoegraphed copy of IMT Decision, pp. 16871.
Countrol Council Law No. 10 originated from the same 4 Power action, Opening Statement (Tr. pp. 70-76) 182 U.S. v. Flick, Case V, Tribunal IV (Tr. pp.
98-118). 183 U.S. v. Flick, Case V, Tribunal IV (Tr. pp. 99).
It is factually true, therefore, that the organization of order and the creation of courts was not only authorized by international law, but required by the Nazi created and imposed situation that confronted the victorious Allied Powers.
The issue of retroactivity or expost facto applications goes not to the power to define the crime or to try the defendants. It is addressed solely to the question of whether the defendants did in fact commit a crime when they did the acts charged. It docs not justify the doing of the acts charged. Therefore, an issue of fact is presented not as an issue of law.
We quote from the opening statement in U.S.v. Flick:184 "To begin with, a great many of the acts covered by the definition were crimes at the time they were committed, under the law of Germany even of Nazi Germany, The Third Reich never legalized murder, torture, and other inhumane acts, although the government did openly instigate and support many such crimes."