Here lie the causes for my actions To begin with I believe that in a totalitarian state there could exist a free judiciary. In the course of time I realized that most of the Party Leaders, and in particular the SS leaders, found the very essence of the judiciary an obstacle in their party.
Court No. III, Case No. 3.
I did not wish it to be true that there should be no way to save my Fatherland from such a dangerous development and therefore I clung to Hitler. In so doing I found myself in the company of many clever people in all spheres of human activity in Germany and abroad. As to whether my reforms in the administration of justice has been called rightly a Nazi reform by the prosecution, which called itself National Socialist, but which aimed at excluding the influence of all members of the SS and the Party from the administration of justice and which contains not one word against Jews or foreigners, but on the contrary claimed the entire administration of penal justice, including that for foreigners and Jews, that for the judiciary. With confidence I leave it to the Tribunal to decide that question.
I do not ignore today that my life-work which has eaten up my nervous strength was bound to fail; nor do I ignore that my aims were at times in contradiction to the practice of life and my own attitude, but is it not always like that in the life of human beings that just because there are such abuses and just because at times one self is weak one takes that very circumstance for a cause, to set up postulates which have an aim and a direction, but which we cannot immediately, particularly in war time, put into effect, as the power of conditions is stronger than we ourselves. And how far the power of the SS and the Party had extended I only realized in 1942 when I went to Berlin and when I got an insight into conditions in the Reieh. That Hitler himself was a despot and that he put me together with a man who showed himself to be a tool, without any will of his own, of Bormann and Himmler, that was my tragic misfortune.
I had to experience one set-back after the other. At the very beginning of my work by the well-known SD report by Himmler in October 1942, which prophesied that I would soon resign, I was compromised in the whole of the Reich and the only positive point which kept me was the hope and the confidence of the German judiciary.
There are two charges of the prosecution which they made in Court No. III, Case No. 3.their final plea that I want to answer now, How can tha prosecution from my speeches in Hamm and Lueneburg, of tha latter of which tha text does note even exist, conclude that I was in favor of exterminating the Jaws?
Both speeches exclusively relate to degenerate criminals and incorrigible criminals. In tha usage of tha German language, they are asocial elements and for those elements I demanded, according to my own prosecution document a judicial authority. And tha second charge is that I am a liar.
Tha Jewish pogrom in 1938, they say, had been on quite a different scale in Hamburg from tha way I had described it. As to how tha Jewish question was handled in Hamburg, that you can see clearly, not only from a prosecution document, but also from tha affidavit by a man whom tha British after tha surrender made tha mayor of Hamburg himself half Jewish. I am speaking of Mayor Petersen.
That in my struggle I was placed in outward contact with wrong, that lay in tha vary nature of tha thing. I assume responsibility for every action of my own. Tha consequences which now tha whole German people bear justify that formerly landing parsons too bear tha consequences. But I am of tha opinion that crimes which were committed by my biggest enemy behind my back cannot be charged to me. As soon as I heard of them I draw tha consequences.
After 16 months, in 1943, Himmler, Thierack and Bormann finally made ma unemployed. I was 47 at tha time. Without overestimating tha power of my personality, tha road for tha wishes of those man concerning tha administration of German justice now lay open.
THE PRESIDENT: Defendant Lautz may now address tha court.
DEFENDANT LAUTZ: At tha beginning of tha prosecution's oral presentation tha Chief Prosecutor emphasized that tha role which tha defendants are assigned to in this proceedings is new for us. That is true, as far as this refers to tha position which we now have to hold before this Tribunal. Apart from that, we public prosecutors are wall familiar with tha role of defendants in criminal proceedings.
Court No. III, Case No. 3.
A man like myself who in thirty-five long years became acquainted with the fate of men in detention houses, in court rooms, in penal institutions, and on the way to the place of execution knows very well the tragedy of this role and who under the official robe has preserved a human heart, will the better recognize that not blind zeal for prosecution, but much rather wisdom coupled with human understanding are best designed to serve the aim of true judicial administration.
The German public prosecutors in their overwhelming majority recognized this and that also in the Third Reich. Therefore, none of the charges made against me here I feel to be more unjust than that by raising malicious indictments I had done injustice for the sake of injustice. I trust, however, that these proceedings have shown how unjust this charge is. The office of a public prosecutor is a very hard one. It is easier in peace than in war time, but it became incredibly difficult during a war, which is without example in history and which has left our Fatherland, which meant everything to us public prosecutors, in ruins.
THE PRESIDENT: Defendant Mettgenberg may address the Tribunal.
DEFENDANT METTGENBERG: Your Honors, novel, alien, and unaccustomed, as it was to the previous speaker, so is to me the situation in which I found myself for months in as an imprisoned defendant in the dock, and that is what the prosecution said when this trial opened; novel, alien, and unaccustomed were to me many many things that occurred in this trial, a trial which concludes today.
All the same I, for my part, have tried to make my contribution to the correct carrying out of these proceedings; with complete frankness I have described my past career, and I have given you my views concerning the points with which the prosecution has charged me. There is nothing I have to hide.
Now at the end of this trial the prosecution deemed it necessary, I believe without regard to the evidence, to ask of you Court No. III, Case No. 3.that you should convict me for having committed war crimes.
It may be that that is the duty of the prosecution. It is not for me to arrive at a judgment about that. The prosecution must take the responsibility for their motion.
My defense counsel has asked you to acquit me. I too ask you to acquit me, but, Your Honors, I ask you for more than that. As far as I am informed it is in accordance with your legal views to acquit a defendant if there is a reasonable doubt about his guilt. I am of the opinion, and please do not think me arrogant, that I may expect you to find that there is no reasonable doubt as to my innocence. Even after careful and conscientious examination, such as I have given to my own past, I believe I am justified in making this request.
THE PRESIDENT: The Defendant von Ammon may address the Tribunal.
DEFENDANT VON AMMON: I have nothing to add to the statements made by me on the 1st and 4th of August under oath in the witness box.
THE PRESIDENT: Defendant Joel may address the Tribunal.
DEFENDANT JOEL: I wish to remain silent.
THE PRESIDENT: Defendant Rothaug may address the Tribunal.
DEFENDANT ROTHAUG: Prosecutor King in his final pleas mentioned a death sentence passed by a French court against a president of a court against a president of a court in Strassburg. May I refer to the fact that this involves a so-called "in absentia" sentence in which the defendant had no opportunity for his own defense whatsoever because at that time he was in a German internment camp and by sheer accident happened to read of it in a newspaper.
I served my country throughout my life and in whatever job I was assigned to, in faithfulness, with a pure heart; and without malice. Seen from my present position you right consider this wrong and you could say I and all those who surrounded me, should have been more suspicious of developments as they took place. This prognosis in retrospect is just as convincing asit si cheap. Nobody in our position at that time could be of the opinion that the State could be accused of illegality and that the war that it waged was a war of aggression as is demonstrated today to all the world. Therefore; it is no accident and no excuse that; apart from the flood of personal defamations which I received from the circle of my previous friends and assistants I am now anxious to prove to you that both in the service as a judge and prosecutor I applied the laws of my country in the manner in which they were intended; to the best of my conscience and belief. We were guided by the practice of the Supremo Reich Court and went the same way which was taken by the remaining 60 to 80 special courts in the Reich. We were no specialists in crimes against humanity; and proof has been furnished in one single case that in any connection we had applied an illegal method. Extermination thoughts were not represented in my sphere of work; nor did we ever hoar anything about the fact that in the field of justice they played any part at all. We know of shoot ings of people who had been sentenced only to prison terms.
That was openly reported in the newspapers. Apart from that, these proceedings applied to four people who, under my presidency, had been sentenced to imprisonment - among them, the Eisenberger case, mentioned here. But I myself only heard of the inner connections of these events here when internal official files of the public prosecution became accessible to me. We saw and judged the facts in a different light. The country was an area of warfare. I experienced the terrors of Verdun. As far as misery was concerned, they cannot be compared with the effects of one single bombing attack lasting 45 minutes on the civilian life of this city. The principle of war which threatens life itself had been made a principle of life. We therefore understood, guided by this point of view, that the laws required harsh proceedings in the case of crimes which exploited conditions of war, and that habitual criminals, violent criminals, and saboteurs of all kinds, in view of the decreased security of the conditions as they existed in the country, had to be held down. If, on the other hand, we are told that thereby we had supported a war of aggression carried on by our government, then we can only say: "We did not know it." Once war had come, the life and existence of millions of peoples was involved, and therefrom the derived the ethical justification for severity against individuals which stood in no proportion to what was at stake. The logical calculation of war in regard to life is that hundreds of thousands of people are sacrificed to save the lives of millions, and this principle was transferred to the entire public life. In the field of criminal law this was tied to the concept of guilt. And that was how our work our activity, thus was understood. If today we are no longer understood, and if attempts are made today to judge our actions as criminal, this is not very surprising in view of a world which does not look too far below the surface of things. For the catastrophe has made all our actions appear in the destructive light of "in vain". This qualification which also applies in the field of morals, disguises all connections which might speak in our favor in the question of humanity.
This is the tragedy of cur case and we are convinced that Your Honors will not fail to see it.
THE PRESIDENT: Defendant Barnickel may address the Tribunal.
DEFENDANT BARNICKEL: May it please the Court: The great Frenchman Honore de Balzac, for whom I have had a great respect since the days of my youth, puts into the mouth of one of his characters, these words: "I believe justice to be a development of a divine idea which is suspended above the world." That idea, whether one shares it or not, is certainly very beautiful. It remains beautiful even if one can no longer tell that justice has that divine origin. We jurists whom fate had condemned to work in the Third Reich -- and I am by no means referring only to us who are here -- I am referring to all of them-we know what was the matter with the Administration of Justice may have worked, I believe, one must view it, in connection with the fate of the German people. Professor Jahreiss, to whom all of us in this trial listened with interest, once coined the phrase that for decades the German people had not known a normal life. Every single one of us experienced that himself. If I may make it more clear from the example of my own life, I want to read a few sentences from my diary for the last time. This is an entry which I made on the 9th June 1942, and I wrote it under the influence of a Swiss novelist, the title of which is, "Amadeus", and I quote: "When I thought about it for longer as to what I liked we much about "Amadeus", this occurred to me: It is peace. The peace in which these people live, and in which they can develop. Peace which, to us Germans, has become something quite strange because since 1914 we have not had it. Before that time we, too, lived in such an atmosphere, but since then we have always had war, or at least a pressure which amounted to war. 1914-1918 there was a war on. In 1919 an intermediate phase set in. From 1922-1923 there was the inflation. From 1924-1927 there was the deflation. From 1928-1929 there was a brief recovery. From 1930-1932 there was a financial crisis and a continuous poletical crisis.
From 1933-1939 the German people were moulded into a new cast by force. From 1939-1942 there was war. From 1942? Still war.
"I am now 57 years of age. For 18 years I was a child. 28 years after that were war years. For 11 years there was a real life. And these were the years of development -- of immaturity -- years of struggle years of suffering and poverty. But in between there were also many happy years."
That is how I looked at my life at the time. And it was similar for every average German citizen. Every normal German longed for peace, for peace, which had become something quite strange to us, and every German has that longing deep in him, just as I myself -- but it was not within his power to achieve that peace. We saw it merely like a ghost. But, the same fate which individuals have, is the fate of the spiritual institutions of its nation. And the Administration of Justice, too, shared our fate, it too was hemmed in as war and political violence which were foreign to its nature. No wonder that at the end of that last period of 30 years justice, too, had been wrecked, just as millions of people and their lives have been wrecked! Let us hope that from that destruction, new life and new culture will develop. For, after all, so far every generation has lived on the ruins, which were left by its predecessors and built its houses from those ruins. Lot us hope that what we see in Germany at this moment is already part of reconstruction and no longer of destruction, and also, I hope, that we -- as Balzac put it -- one day again shall be able to believe that Justice is the development of a divine thought which is suspended above the world!
THE PRESIDENT: Defendant Petersen may address the Tribunal.
DEFENDANT PETERSEN: Your Honors, World war I signified a deep cut into the history of the German people. There existed the great danger for German of being swamped from the east. It was in the hope to prevent this that I joined the NSDAP. Germany was to become a bulwark against Bolshevism, a pillar of Western culture.
I once entertained the great hope that National Socialism would contribute its part towards this end. I do not want to describe my disappointment; the part led past stations of terror. In all my actions I was guided by the ideal of fulfilling my duty and of serving my country. It was solely my of whether conscience that formed the basis for my actions, irrespective I was an officer, SA-Leader, State counsellor, or only an honorary assistant judge of the People's Court. I have nothing further to add this. My conscience is clear. Therefore, I am calmly expecting your verdict.
Court No. III, Case No. 3.
THE PRESIDENT: The defendant Nebelung may address the Tribunal.
DEFENDANT NEBELUNG: I was a German judges I followed the laws of my country and my knowledge and my conscience in passing judgment. Germany has lost the war. If the law of the victors demands of you -- do not believe it does -- then you must condemn my actions. In this trial the tragedy of the office of the judge has been mentioned frequently. Is that anything special? Does not every soldier find himself in the same situation? I have had that experience both as a soldier and as a judge, but not here in prison, not in the dock, but by the gun and on the bench. By that I want to say the tragedy does not lie in the consequences. I do know how to bear the consequences of a sentence, for I believe in the words f the German who was both a judge and a poet. One man asks "What will happen next?" while the other merely asks, "Is that right?" and that is how the free man is distinguished from the serf.
THE PRESIDENT: The defendant Cuhorst may address the Tribunal.
DEFENDANT CUHORST: Your Honors, I have to add the following brief words to the final plea of the defense counsel appointed on my behalf. Indictment and Prosecution statements reveal that in these proceedings I am. only pars pro toto. The Prosecution with its evidence is unable to prove any charge which would actually apply to me. The Prosecution in its final plea has failed to mention a whole series of charges in the Indictment, and others for the same reason, namely, lack of evidence it left in obeyance. In presenting its evidence the Prosecution not only ignored my evidence but also its own, in part. What other reasons are there to explain that they submitted Document No. 983 which reveals in the computation of journey expenses that on 21 March 1943 I was absent for weeks in the East on an official journey and at the same time have the witness Eberhard Schwarz testify with alleged full assurance that on 24. March 1943 I had been in Stuttgart, and presided Court No. III, Case No. 3.over the Englert, a foreign case.
The Prosecution has submitted the verdict in the case of Untermarchtal, but what they said in the Indictment about its contents is not contained in the verdict, but just the contrary. This is the type of evidence submitted if facts are involved. Only documents not arguments with many sources of error, can show the same facts.
Justice, above all penal justice, in Germany since 1916 was always considered an institution not in accordance with the times due to political attacks on its reputation, thus losing its reputation. In spite of early hopes also after 1933, this development continued, and it still is continuing. Neither in 1937 did Guertner protect my predecessor, nor in 1944 did Thierack protect me. The many stations of this development pretended to have various good aims but they actually have had only the one effect to dispute what we call justice. Contrary, for example, to the profession of a doctor, that of a penal judge creates only few friends. A man who is acquitted considers the acquittal as a matter of fact. The man who is sentenced, and his defense counsel then consider the verdict as unjust, or too severe. Confusion caused in the transitional periods showed this in particular a conspicuous form. In spite of these charges brought against a criminal judge now accused of being a criminal no person ever convicted under my jurisdiction has testified personally against me. Only a judge who is a saint is free of errors. I never denied mine. The struggle for independence and against destroying influences of the time has caused me scars. They wanted to eliminate me from the Party and from my profession, and a non-independent minister and his accomplices removed me from office. The Prosecution witness against me was quite right who said: "He wanted to maintain independence and he did maintain it." Due to the collapse of my Fatherland, I was again involved in struggles. I am involved in an Indictment of judges of very unexpected and unfortunate charges. From 1933 to 1944 one side spoke of me as if I were strange, suspiciously mild, unbearable, unsuitable for office, and detri Court No. III, Case No. 3.mental to the Party, and so on.
Today the strong terms read as follows: Embarrassing, exceptionally severe, convinced Nazi and the like. Also in my prison cell which is my fate for almost one year though as a prisoner of war an officer of the Army, I am subject to the Geneva Convention I accept these reproaches quietly. I have sworn the oath to observe the law independently and to apply them irrespectively to the person involved. I have duly observed this, and let the consequences be whatever they may be. Either time will be able to bear judges who do not bend themselves or the time is already here which has quite different views. In handling these problems my own case is receding to the background. The decision concerning the basic questions of the entire problem of the judiciary brings the solution also for me of the question: Am I as a judge a criminal? Before all the world, and even if war opponents are concerned, a judicium parium can answer this tremendous question with one word only, namely, no.
THE PRESIDENT: The defendant Oeschey may address the Tribunal.
DEFENDANT OESCHEY: May it please the Court, what need to be said in my case has been said by my defense counsel, and all that is left for me is to agree to his statements, to give you the assurance that I always acted in the belief and in the conviction that I was doing right, by obeying the law to which I was subjected. I applied it in the manner in which my conscience told me to. And it is the truth that it was a matter of conscience for me not to misuse the law in a criminal way, but to apply it in accordance with the will of legislator, and to grant the offender a proper trial and a just verdict. Therefore, my conscience knows that it is free of the crimes of which I am charged.
THE PRESIDENT: The defendant Altstoetter may address the Tribunal.
DEFENDANT ALTSTOETTER: The charges which the Prosecution has raised against me because of my alleged participation in war crimes and crimes against humanity and on account of my capacity as honorary SS leader, do not apply to me. My conscience is free of any guilt. I Court No. III, Case No. 3.certainly did not propose to evade responsibility for my actions.
On the contrary! These proceedings gave me the possibility to justify my actions before my people - by whom I stand even in these hard days and before the entire world that is my actions during the past regime, and particularly so during the period of my activity in the Reich Ministry of Justice, in which I hoped to administer what I have always considered as law and justice. For this reason I have done everything to give the best contribution possible in order to bring out the truth in this trial as far as I am concerned. As a witness in these proceedings I have testified to the truth to the best of my knowledge and belief.
The Prosecution knows this very well from my own interrogations during preliminary proceedings, as it knows this from the interrogations of many collaborators and aides whoever was not permitted by the Prosecution to appear as witnesses in the Court. The Prosecution knows that from the documents which must be in its possession, but which were not presented.
(continued)
Court No. III, Case No. 3.
And, therefore, the fact hurts me all the more that in its final plea the Prosecution designates me as not worthy of credibility. I feel obliged towards myself and also towards my children to protest with all seriousness and with all emphasis against this charge of having lied. I do not have to fear truth. I hate nothing more than lies. I feel secure only under the protection of truth, for truth is the sister of justice. But justice on the part of the Prosecution must be claimed by me even if here we are only experimental objects of International Law as it is aspired to, and of an embryonic international exchange of justice.
Furthermore, I feel obliged to refer to the following, let the proceedings result as they may. There is the enormous danger that German justice was shown here in a picture, which, even referring to the time between 1933 and 1945, is not identical with actual facts. I know justice in all its different phases and organizations, and I know that German administration of justice up to the very end was the best administration of the Reich, and I know before all that the German judges, even in hard times, and particularly in these hardest times of all, did their duty for right and justice up to the very end. All that was to be desired was that the courage which was shown among the German judiciary at these times would have been shown everywhere. Then the danger could never have arisen that here in this courtroom there might arise the danger of a false picture as far as the German judge is concerned.
THE PRESIDENT: The testimony has been received in the case which was begun on the 5th day of March of this year. Final arguments have been heard. The defendants have made their voluntary statements, and the case is closed. There remains only the task of the Tribunal to render its decision. That decision will be rendered by the Tribunal in accordance with its ideals and convictions in the administration of justice according to law. The Tribunal will recess in a moment.
Counsel for the Defense and for the Prosecution will be advised Court No. III, Case No. 3.as to tha time at which tha decision of tha Tribunal will be read, and I think for your convenience we may say, gentlemen, that you may feel yourself free to absent yourselves as counsel for at least a period of three weeks.
We will give you due notice, I assume through the Defense Information Center, as soon as it is possible for us to inform you as to tha data on which tha decision will be rendered.
The Tribunal will recess.
THE MARSHAL: Tha Tribunal has recessed for an indefinite period.
(Tha Tribunal adjourned for an indefinite period.)
Court No. III, Case No. III.
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 3 December 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 will be order in the court.
THE PRESIDENT: Mr. Marshal, have you ascertained if the defendants are all present?
THE MARSHAL: May it please your Honors, all of the defendants are present in the courtroom with the exception of the defendant Schlegelberger who is absent due to illness.
THE PRESIDENT: The Tribunal understands that the defendant Schlegelberger is absent at his own request and is advised that he is necessarily absent due to illness. Is my statement correct, Dr. Kubuschok?
DR. KUBUSCHOK: Yes, your Honor.
THE PRESIDENT: Counsel confirms the statement of the Tribunal. We will proceed, therefore, in the absence of the defendant Schlegelberger, to the conclusion of the trial. Do the interpreters find the microphone operating properly?
MISS HAHN: Yes, your Honor.
THE PRESIDENT: We will proceed with the reading of the judgment of the Tribunal in case: The United States of America, Plaintiff, vs, Josef Altstoetter, et al, Defendants.
JUDGMENT Military Tribunal No. III was established on 14 February 1947 under General Order No. 11, issued by command of the United States Military Governor for Germany.
The indictment was filed with the Secretary General of Military Tribunals on 4 January 1947, and the cause was assigned to Tribunal No. III for trial. A copy of the indictment in the German language was served upon each defendant at least thirty (30) days before the commencement of the trial.
The defendants were arraigned on 17 February 1947, each defendant entering a plea of "not guilty" to all charges preferred against him. German counsel selected by the defendants were approved by the Tribunal and have represented the respective defendants throughout the trial.
The presentation of evidence in support of the charges was commenced on 6 March 1947 and was followed by evidence for the defendants. The taking of evidence was concluded on 13 October 1947. Copies of the exhibits tendered by the prosecution were furnished in the German language to the defendants prior to the time of the reception of the exhibits in evidence. The Tribunal has heard the oral testimony of 138 witnesses. In addition it has received 641 documentary exhibits for the prosecution and 1,452 for defendants, many of them of considerable length. Some affidavits have been presented by the prosecution. but they are few in comparison with the hundreds offered by the defense.
Whenever possible, and in substantially all cases, applications of defense counsel for the production in open court of persons who had made affidavits in support of the prosecution, have been granted and the affiants have appeared for cross examination. Affiants for the defense were cross examined orally by the prosecution in comparatively few cases.
The defendant Carl Westphal died before the commencement of the trial. On 22 August 1947, the Tribunal entered an order declaring a mis-trial as to the defendant, Karl Engert who has been able to attend court for only two days since 5 March 1947. The action was rendered necessary under the provisions of Article 4 (4) of Military Government Ordinance No. 7, and by reason of the serious and continuing illness of said defendant.
The trial was conducted in two languages with silultaneous translations of German into English and English into German throughout the proceedings.
Under Military Government Order of 14 February 1947, the following were designated as members of Military Tribunal III: Carrington T. Marshall, Presiding Judge; James T. Brand, Judge; Mallory B. Blair, Judge; Justin Woodward Harding, Alternate Judge. As this constituted, the Tribunal entered upon trial of the case. On 21 June 1947, General Order No. 52 was issued by the Office of Military Government for Germany as follows:
"Pursuant to Military Government Ordinance No. 7 "1. Effective as of 19 June 1947, pursuant to Military Government Ordinance No. 7, 24 October 1946, entitled 'Organization and Powers of Certain Military Tribunals', JAMES T. BRAND is appointed Presiding Judge of Military Tribunal III, vice CARRINGTON T. MARSHAL, relieved because of illness.
"2. JUSTIN WOODWARD HARDING, Alternate Judge, is appointed Judge for Military Tribunal III.
"BY COMMAND OF GENERAL CLAY:
C. K. GAILEY Brigadier General, GSC Chief of Staff."
The trial has been continued before the Tribunal as thus reconstituted. The evidence has been submitted, final arguments of counsel have been concluded, and the Tribunal has heard a personal statement from each defendant who desired to address it.
In rendering this judgment it should be said that the case against the defendants is chiefly based upon captured German documents, the authenticity of which is unchallenged.
The indictment contains four counts, as follows:
(1) Conspiracy to commit war crimes and crimes against humanity. The charge embraces the period between January 1933 and April 1945.
(2) War crimes, to wit: Violations of the laws and customs of war, alleged to have been committed between September 1939 and April 1945.
(3) Crimes against humanity as defined by Control Council Law No. 10, alleged to have been committed between September 1939 and April 1945.
(4) Membership of certain defendants in organizations which have been declared to be criminal by the judgment of the International Military Tribunal in the case against Goering, et al.
The sufficiency of Count (1) of the indictment was challenged by the defendants upon jurisdictional grounds, and on 11 July 1947, the Tribunal made and entered the following order:
"Count I of the indictment in this case charges that the defendants, acting pursuant to a common design, and unlawfully, willfully and knowingly did conspire and agree together to commit war crimes and crimes against humanity as defined in Control Council Law No. 10, Article 2. It is charged that the alleged crime was committed between January 1933 and April 1945.
"It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.
"Count I of the indictment, in addition to the separate charge of conspiracy, also alleged unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We therefore cannot properly strike the whole of Count I from the indictment, but, in so far as Count I charges the commission of the alleged crime of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge.
"This ruling must not be construed as limiting the force or effect of Article 2, paragraph 2, of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances occurring either before or after September 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10."
This is the end of the ruling which the Tribunal made.
The Jurisdiction Enactments For convenient reference we have attached to this opinion copies of the London Agreement of 8 August 1945, with the Charter of the International Military Tribunal annexed thereto, Control Council Law No. 10, Military Government Ordinance No. 7, and the indictment, which are marked respectively Exhibits A, B, C, and D.The indictment alleges that the defendants committed crimes "as defined in Control Council Law No. 10, duly enacted by the Allied Control Council". We therefore turn to that law.