From this and in connection with the fact that already before the capitulation of Germany an interstate penal law was in existence, it result that the prerequisite for the punishment of the actions under indictment here necessitates the knowledge on the part of the defendant that his actions were illegal and that this can be proved, and that he cannot be sentenced for actions which could not appear illegal to him. Therefore all those actions are not punishable which can be charged to the defendant solely from the point of view of planning and which were without individual criminal intention. I request:
That the indictment be declared "insufficient" and that, indeed, for "legal reasons" insofar as it charges the defendant with joint planning, with conspiracy to commit war crimes and crimes ...against humanity as a separate and specific point of the indictment aside from other frets of crime which may be derived as such_from Law 10 and the international as well as German penal code.
The Tribunal is already today in a position to come to this clear decision on the basis of the material presented by the prosecution. Such a decision would simplify the further trial considerably, and would reduce the pleas of the defense. To make suck a decision beforehand would serve the economy of this trial, which otherwise threatens to go interminably. This is valid not only for the defendant JOEL, but also for all the other defendants, whose defense counsel have requested me, to discuss the problems connected with the legal concept of conspiracy.
In my opening statement I do not wist to deal with the idle question as to whether or not the Court, as American Military Tribunal, is competent to pass judgement on offenses which took place prior to the occupation of Germany. It is an established fact that the tribunal has been legally constituted and that it must make its decisions in accordance to Ordinance No. 7 of Control Council Law No. 10, the London Act of 8 August 1945 and the Executive Order of the President of the United States by which the judges were appointed. The question of procedure, however, must be sharply differentiated from the question as to what substantiate penal law is to be employed in the decision. The publication of Ordinance No. 7 alone shows the fact that even the American legal procedure was not considered applicable without legislative action by the occupation power.
As a further line of defense for Guenther JOEL I would like to point out the following: JOEL had indeed seen that much "was rotten in the State of Denmark" - to use the words of die greatest poet - but had derived no private benefit from it. He, in his position, did everything possible to fight this rottenness and tried to remove the elements which to him appeared to be responsible for it . He not only fulfilled his duties as expert official in the administration, but went far beyond this by doing everything possible to protect law and order. I cannot restrict myself to answer the Prosecution with legal arguments only, but will also have to consider the detailed facts which the Prosecution legally evaluates and upon which it bases its conclusions. The facts, too, are different from the way in which they were presented, and also the seemingly irrefutable documents gain their real meaning only by their interpretation, and only through completion and connection with other facts not yet presented by the Prosecution do they obtain life and real significance.
The documents presented by the Prosecution in the case against JOEL, as far as they do not represent insignificant information or they like, are, on the contrary, in part evidence of high lights in the battle of the administration of the law for its independence against party despotism in which battle JOEL publicly took part like no other official.
The defendant JOEL is charged with joint responsibility for the suppression of the criminal procedure against the guards of the concentration camp Kemma in 1935. The Prosecution submitted in Document bock I c, P. 23 a report of the senior Public Prosecutor in Nuppertal dated 20 January 1956, furthermore a report of the Reich Ministry of Justice dated 19 February 1936 addressed to HITLER which culminated in the proposal for suppression of the aforementioned criminal procedure. JOEL did not sign any of these reports; however he initialed them and made file notes In the session of 18 March I found fault with the fact that the documents submitted presented only a few pages from voluminous files as can be seen from the pagination. A written application for presentation of the entire files was also submitted. They will show, just as well as affidavits to follow, that it was JOEL himself who brought it about that the camp was dissolved. At that time he was the youngest official in the Ministry. Against the strongest opposition of the Party and the SA, and through personal intervention and interference right on the spot, he started the criminal procedure against the guards. He was not intimidated by the fact that the Gauleiter complained about him to the then Prussian Prime Minister GOERING and requested his immediate dismissal.
But these counter-forces were stronger then the very young Referent JOEL. By order of his superior, the chief of the penal section of the Ministry, the report of the Ministry was made, when HITLER had indicated that he did not want criminal proceedings. In this report, however, the activities of the concentration camp guards are not all extenuated, but are represented so unsparingly that these descriptions have already been quoted repeatedly by prosecution authorities. According to instructions, the last sentence had to ask for clemency. But whoever had ears to listen and eyes to read had to realize that the authorities really were intended to reject a quashing. The Tribunal may find it difficult to put itself into the position of officials who were forced to work under a dictatorial regime. Everyone in Germany read between the lines at that time. Only in the frame of sentences apparently acceptable to the regime could the truth be told. If one, therefore, now wants to check the views of a man, whether he was or was not a conspirator against the Law, one must read a document completely and judge it according to the language used in those days, and according to the way it could, only have been understood by people who knew.
As further evidence for the attitude and actions of JOEL, it is necessary to refer back to other happenings of that time. The ill-famed Camp Bredow near Stettin played a role already in the IMT trial. JOEL and a co-worker succeeded in approaching GOERING and describing the conditions so impressively that GOERING put his guards on trucks, supplied them with live ammunition, and, under conditions which remind one of the liberation scene in Beethoven's opera "Fidelio", the arrest of the camp commander and his helpers took place. Also other concentration camps in which political opponents were mistreated, were dissolved due to the interference of JOEL and his co-worker, as for instance camps Esterwegen, Hohenstein and Hamburg. Why should JOEL have thought differently in the case of KEMNA?
if he had not wanted the persecution, why did he risk his position and his person in order to obtain a complete explanation of the matter? But not only did JOEL bring it about that the NSDAP strongholds for political opponents were disolved, he was also always in action from 1933 until the time he left the Reich Ministry of Justice in 1943 when an orderly execution of criminal proceedings was to be hindered by Party officials. Everyone in the Reich Ministry of Justice and the majority of officials in the Justice Administration in the country know him in that capacity.
When the occurrences of 30 June, the ROEHM Putsch, necessitated discussions regarding criminal law, when the collectors for the Catholic Welfare Organization Caritas were ill-treated and robbed in Munich, when a priest was publicly accused and led through a city as a "Jewish servant" (Judenknecht), when he energetically took action in the penal persecution occasioned by GOEBBELS' Jewish Program of 9 and 10 November 1938, whether a Jewess or an owner of a department store, whose business a Party member wanted, were being persecuted, whether high Party officials seized rationed food-stuffs or other items short during the war, JOEL appeared and interfered without regard to personal danger. JOEL did not sit idly by and complain; he took action. He could have made things easier for himself, and would not have had to expose himself to the dangers which he encountered thereby, that he left the Berlin Ministry and its protection in order to go to the dangerous positions in the Province. He had at that time the protection of the Minister of Justice GUERTNER. We have already heard from a witness of the prosecution, the prison chaplain WEIN, of the change, which as seen from the outside, from the rural areas, took place also in the execution of sentences, after GUERTNER had died and National Socialism with THIERACK after a short interregnum arrived successfully at the Ministry of Justice in Wilhelmstrasse. The battle for law and its execution conducted in this house until that time must be presented and discussed.
If one can speak of planning, that concept must apply to those men, who under the most difficult circumstances hold together amidst perpetual danger, who came to an understanding and supported one another in order to rescue what could be rescued; but in a positive, not negative sense. A man, such as Superior Counsellor v. Dohnany, must be remembered in this trial as coadjutor, who finally was murdered as a victim of the Naxi persecution after 20 July 1944. He was GUERTNER's adjutant, a friend of JOEL. JOEL belonged to those men who made the opposition of the Ministry and provincial authorities wherever it occurred, materialize against Party interference in such a way that the suspicion of participation, a taking part in the abolition of judicial responsibility and autonomy in favor of a totalitarian state, can be resolutely refuted by many individual arguments. JOEL's discussions with Under-Secretary FREISLER who represented the Party interests in the Reich Ministry of Justice were known in Berlin.
The assumption of the Prosecution -- page 73 of the opening statement of 5 March 47, I quote: "That he had had a working agreement with the SS for the purpose of carrying our HITLER'S orders for shooting those people who had received too lenient a punishment" -- end quote -will be refuted. Quite on the contrary, he did everything in his power sought and had negotiations eight the persons around HITLER during the day but also during the night, and used every means to hinder the so called orders for handing over those unfortunate people who had attracted HITLER'S attention. But at this bureaucracy level JOEL was really a small man. Above him were the chiefs of the sub-divisions and divisions, the Under-secretary and the Minister. And in this machinery, the Chief of the, Reich Chancellery, Mr. LAMMERS, interfered, as well as the Chief of the Presidential Chancellery Office, Mr. MEISSNER; and above him were the real holders of the political sovereign power in Germany, BORMANN, who had the satraps of the Party call him for lenient judgments, and HIMMLER, who held his own armed authority, and commanding them all was HITLER'S almighty arm, who, through his aide-de-camp gave a brutal telephone message, ordered executions to be reported to him within 24 hours, and tolerated no contradiction.
Consequently, what could a little wheel in the machinery do? If it locked, it was beaten, and then it moved in accordance with the law of force and violence against which there is no resistance. JOEL "did not take part through his consent" (as is stated in Art. II, 2c of Law No. 10), but despite his opposition and resistance, the events passed over him, as well as his superiors and the Minister, and his co-operation was limited to the passing on of a telephone message, the substance of which he tried to prevent from being carried out. Are we to go so far as to demand of an official in the Ministry of Justice the instituting of a criminal procedure against the head of tho State in an authoritative state? What did other officials of the Reich Ministry of Justice do against such orders of HITLER, what the chiefs of the division and sub-divisions, what the head of the penal department? According to Art. II, 4, even HITLER's order does not release a person from responsability for a crime, although mitigation of the penalty in his case can be considered. However, a crime must always be proved, consequently the culprit must be either the chief perpetrator, an accessory to the crime, or one of the accomplices, which makes him answerable for somebody else's act, and as I have already stated, each of these manners of participation, each responsibility for somebody else's act therefore requires the proof of his own wrong-doing, his own criminal intention, the granting of the sanguinary result.
Above all, one viewpoint must be mentioned: the idea of expecting outspoken resistance. The judgment of the International Military Tribunal defines it as "the question whether a choice corresponding with moral law was really possible." (Chapter 5 at the end.)
The Tribunal No. II which is still in session in Nurnberg has stated in its verdict against Erhard MILCH in the opinion delivered by Judge Musmano, page 96: "It has never been our intention nor had it ever been suggested that he (MILCH) should have chosen a way that could have entailed the loss of his life."
Life, however, - and any open resistance to Hitler's orders would have meant that he would have been delivered to the Gestapo, as Hitler demanded this for criminals who had allegedly received too mild a punishment - is the possession which every person has a right to consider important above all others. JOEL would have been liquidated and Hitler's order would have been carried out all the same. I shall prove that JOEL nevertheless was successful in saving the lives of several condemned persons.
These points of view are also applicable to the whole group of deeds labelled by the Prosecution as NN affairs. On page 64 of the opening statement of % March 1947, the prosecution mentions JOEL last among the participants and those chiefly responsible.
None of the documents of the Ministry of Justice show that JOEL participated in the work on the NN-cases and every official of the Ministry of Justice knows that JOEL had never had anything to do with the work on the corresponding orders of execution, decrees and instructions. Nor did he learn anything by way of conversation about NN-cases which by order of Hitler were kept in strict secrecy. It was only after he had been removed from the Ministry of Justice and some time after he had taken up his post as General Public Prosecutor in Hamm that he came to find out that the Senior Public Prosecutor in Essen, who was subordinated to him, and the District Court in Essen, had been entrusted with the discharge of NN-affairs. I need not draw your attention to the fact that a General Public Prosecutor had nothing to decide in these NN-affairs. The Tribunal knows the decree of 6 February 1942 -Document Book VI, page 22, NG-232, Exhibit 308 - according to which the Chief Public Prosecutors had to inform the Ministry of Justice about the contemplated indictments, the contemplated discontinuance of the proceedings, the contemplated repeal of a warrant of arrest and the contemplated reference to foreign evidence and to ask for its approval.
JOEL was the General Public Prosecutor who as the only one among his colleagues dealt with the NN-matters for approx. 5 months only, since already on 15 March 1944, they were handed over to Kattowitz because of the danger of enemy action in the western provinces. I ask whether the prosecution will make him responsible for the fact that he, after entering office in Hamm, neglected to prohibit further work on NN-matters which had been carried on in Essen for two years. There can be no doubt in my opinion, as to the answer to this question. The prosecution quite rightly did not arraign the 12 officials of the board of the People's Court and of the District Courts of Appeal of Kiel, Cologne, Berlin, Hamm, Breslau and Kattowitz. I conclude from this, that the inclusion of JOEL in the indictment because of the NN-procedure was made in the erroneous assumption that he held an authoritative position in the Reich Ministry of Justice.
The prosecution finally has asserted that JOEL by his membership of the SD had been "especially familiar with the murder practices of the SS" (page 104/105 of the opening statement of 5 March 1947). JOEL's appointment on 19 December 1937 as liaison officer to the SS and the State Police was not made by an office of the SS but by Minister GUERTNER. At that time he was not a member of the SS nor the SD. The appointment served to enable him to continue his activity against arbitrary acts of the Party for the sake of which he was attacked by officials of the Ministry of Justice and even by the undersecretary Dr. FREISLER; the bestowal of a rank in the SD in 1938 was the result of measures taken by GUERTNER. Even after this promotion JOEL, as he had done before, promoted the interests of a proper administration of justice in his dea lings with party and police.
JOEL was merely an honorary co-worker of the SD without special function. It will become apparent that he could not know anything about the war tasks of the SS, SD and Gestapo (State police) which led to the condemnation of the organizations by the International Military Tribunal. The document 638-PS, Document Book IV A, page 47, the statement of former Reichmarshal GOERING, is inadequate as proof of JOEL's knowledge of crimes committed in the East.
JOEL, who discussed this suggestion of GOERING's with the generals of the Luftwaffe concerned, in spite of the fact that WESTPHAL was the appropriate expert, was able to conclude from the way this affair was handled that such suggestions of GOERING's were not carried out and were not even envisaged as reprisals for similar actions on the part of the Russians. Incidentally, in the GOERING trial, the document was already regarded as not involved. The picture we get of JOEL is completed by the fact that since May 1942 he was regarded as unreliable by the SD and was removed from Berlin when THIERACK took office, and that he, like many others, became a victim of his open and manly defense of internationally acknowledged principles of justice.
"It is unavoidable that an expert in a ministry will be given additional tasks, especially in war time, which he does not like to deal with but which he, as a civil servant, cannot refuse to accept. He has, however, solved these tasks, given to him in addition to the task of prosecuting violations of War Economy Decrees, according to the law and the rules of humane behaviour. He, who never had the right to decide buy only the right to report and to make suggestions, cannot be blamed for his activities as an expert, just as the approximately 200 experts of the Reich Ministry of Justice have not been blamed. Not even the intimate friend of THIERACK's and his clique, who was inclinded to see defeatism, worthy of capital punishment, in every anxious word, and who thus earned the special praise of his chief, has been accused but is indeed a witness for the prosecution.
"As I said before: When JOEL entered the Ministry in August 1933; he was the youngest expert and Assistant Judge. He remained an auxiliary worker until 1941 and last held the rank of Chief Prosecutor. Exports of the same age had become Ministerialrat already in 1939 because of their Party membership, JOEL, however, did not become Ministerialrat until 1941. He was one of the 22 or more Referants in the Criminal Department of the Reich Ministry of Justice, one of the at least 64 civil servants concerned with criminal cases compare NG 767, Exhibit NO.
376, Document Volume V D, page 342. JOEL was one of the General Public Prosecutors who as the only one of the 32 taking part in and of the 7 concerned with NN cases never experienced a conference in the Reich Ministry of Justice in Berlin and the only one who had been loosely connected with work on NN matters in his district for only five months.
"JOEL was, as all the jurists of Berlin and many professional colleagues in the country know, the one official in the Criminal Department of the Reich Ministry of Justice who by personal intervention publicly opposed Party despotism as well as unjustified measures of the state police who also always showed himself ready to help the politically persecuted and used his official connections with the Secret State Police in their interest, because the way to Prinz Albrecht Strasse was barred to us lawyers.
"When JOEL, in 1943, was removed from the Reich Ministry of Justice by Minister THIERACK nobody who knew JOEL was surprised. THIERACK, the stooge of the Party and the police who sold Justice down the river to BORMANN and HIMMLER, who buried the independence of German Jurisdiction which had been maintained with the greatest efforts under GUERTNER and SCHLEGELBERGER and who himself took measures which had nothing to do any more with justice, this THIERACK could not tolerate a man in his house who saw but one task: to preserve the independence of the administration of justice.
"Is this mam, the defendant JOEL, really to be punished for laws he did not creat, for indictments he did not file, for judgments he did not pass and for decisions of the ministry which he did not make and could not have made?"
DR. ASCHENAUER: Rudolf Aschenauer for Petersen, May it please the Court:
"The peculiarity of the PETERSEN case consists in the fact that PETERSEN is being indicted as sole "non-jurist" in a decidedly "Jurists' trial". Reviewing this trial in the larger frame work of war crime trials, the task of which is the collection of evidence and punishment of the war criminals, we are dealing here with determining the responsibility of the jurists in authority.
"The Prosecution charges the latter with offenses against international legal principles and agreements. It asserts that the use of German laws which violate these International rules represents a crime. This contention, if it should be justified, can only be directed against jurists, who in view of their legal training, experience and employment in key positions ought to have recognized the illegality of the laws.
"However, this viewpoint is not to be considered at all as far as PETERSEN is concerned. PETERSEN was neither a jurist nor had he a leading political position, by which he could have gained influence on the making of the laws or their application. Merely in his capacity as honorary assistant judge of the People's Court (VGH) he had attended about ten sessions. Being a layman, he had to rely on the judgement of the professional judges where legal questions were concerned.
"PETERSEN has been charged with participation in five cases. It will be the task of my defense to show with the help of available files that we are dealing with lawful procedures, that the guilt of the persons sentenced was sufficiently substantiated and that the sentence passed was within the usual legal bounds. If however, the prosecution has submitted matters of the People's Court which had nothing to do with Petersen, the defense will have to stress the difference in the individual procedures and in the attitude taken by the judges in the People's Court. Even the prosecution does not maintain that the People's Court is to be regarded as a collective entity.
"Many witnesses of the prosecution admit and further witnesses will admit that the procedure before the various senates was essentially different and depended upon the person in charge of the proceedings or the reporters.
"Going a step further, I intend to show that political pressure. for instance by the Gestapo, the SD, the political leaders, or the SS, was not brought upon the judges of the People's Courts. The lay judges received no special instructions from their Offices. They did not even receive the Richterbriefe periodic letters for the judges from the Reich Ministry of Justice. Besides they could not, as the prosecution asserts, out-vote the professional, judges.
"The procedure before the People's Courts followed in general the code. Only the admission of the defense counsel was subject to authorization for reasons of general security which have to be considered in cases of treason and high treason.
"I shall consider it my special task to prove to the court on the basis of documents how, as seen from Germany, the constitutional and political developments up to 1939 was reflected abroad in official statements. Particularly in regard to the Protectorate I shall show what significance the official reaction abroad to the Hitler-regime had
1) in regard to matters of constitutional law objectively speaking
2) subjectively speaking for the confidence in the international validity and legality of the laws issued, particularly of those who could not see behind the curtains of Hitler's decisions.
"I shall further try to prove that the knowledge of the atrocities in the concentration camps was confined to smallest circles in such a way that even persons in highest positions were not able to know and actually did not know much about it. During the war Germany was hermetically closed to news from abroad. If anything was ever said about it in smaller circles of resistance, or even in larger circles by way of rumors, the latter did not seem worthy of belief ns they were officially denied, and moreover the whispering campaigns and propaganda concerning atrocities frequently seemed to be too transparent to be authentic.
The sentence of the International Military Tribunal has not expressed itself directly about this as it was concerned with the major war criminals only. Indirectly, however, it may be seen from the reasons given for the acquittal of Hans FRITZSCHE that even FRITZSCHE himself, the head of the domestic German Press and Broadcasting Department of the Ministry of Propaganda did not have any knowledge of the extermination going on in the East. (Page 183 German edition of the Nuernberg verdict.)
"The evidence will show that a positive knowledge of the conditions in the concentration camps could not have existed. Both subjective criteria, i.e. the confidence in the attitude of the official circles abroad towards the Hitler regime and the ignorance of the horrors perpetrated in the concentration camps, will prove, particularly in regard to lay-judge PETERSEN that, whatever he did or whichever actions he took, he could not have been aware at any time of doing anything wrong. That PETERSEN is not the person to participate in any illegal doings is shown by the fact that he interfered whenever he saw anything wrong -- that is, of course, when he had the power to do so -- and that otherwise he tried to help the person concerned. PETERSEN was not afraid of acting against the political leadership when he saw that by single measures a system of force was to be established upon the people. I shall submit the proofs for this fact.
"In the course of the defense I shall present a documentary comparison of German law with foreign law. It is evident in this very courtroom what diverse influence, for instance, the conduct of the trial by the presiding judge as to interrogation of the defendant and examination of witnesses, the free evaluation of evidence in contrast to fixed rules governing evidence, can have on the rights of the defendant.
"The prosecution has asserted that officially, to be sure, it has made its charges in the name of the government of the United States of America, in reality, however, in the name of tall the nations of the world.
"The defendants, therefore are entitled to point to the legislation and procedures of other nations and regimes with the object of showing that the same principles were, and are valid there as in the national-socialistic state, and that these are not considered criminal. This is important above all for the subjective side of the case of lay-judge PETERSEN. For this reason I shall undertake a comparison as to legal aspects with the Russian cultural sphere in particular which comprises l/6 of the surface of the earth and l/8 of mankind ... In this connection one must not forget that Control Council Law No.10 was also signed by the Russians. It will be seen that the individual nations have provided for themselves a regulation of legal guarantees which corresponds to their own state of culture and their own national (not racial) peculiarity. Whereas the most highly developed form of basic human rights has probably been realized by the Anglo-Saxon conception of law, this is, to such an extent, the case not at all with other countries. This will result, therefore, in a different evaluation of the basic rights on the one hand, and of the safeguards for measures and intervention on the part of the State, on the other hand. The problem of independence of the judge, the principle nullum crimen sine lege, the judgment of national danger and of illegality will appear in a different light."
BY DR. DOETZER (For the defendant Nebelung):
"May it please the Tribunal.
"The prosecution conducts this trial in the name of world community and finds its foundation in a longed-for, but not even nearly realized idea.
In the opinion of the prosecution, this trial is intended to impose upon the peoples of the world the obligation of recognizing the criteria used in this trial as a standard, that is to say an obligation which, as the wording makes clear, has so far neither been generally accepted as legally binding nor does it actually exist. In his indictment Telford Taylor has expressed the opinion that the true purpose of this trial goes beyond the mere exacting of vengeance on a few. In it he also makes the defendant Nebelung, whom I represent, responsible for the deluge of death and misery which the Third Reich brought on Germany and the world and accuses him of having desecrated, by judicial murder and through atrocities on thousands of people, the German temple of justice which this trial is to help consecrate once again. It would be more than interesting to investigate which peoples of this world ever erected and consecrated a temple of justice as an embodiment of their expression of their faith, and at the same time to show why, for example, the most cultured people of ancient times, the Greeks, did not do this. The way I understand it, we are dealing here indeed with a problem which also in the opinion of General MacArthur, on the occasion of the signing of the Japanese surrender document on the battleship 'Missouri' on 2 September 1945, is fundamentally a theological one.
"If this trial appeals to the moral concepts of the civilized world and wants to derive therefrom the punishment of a judge, then it must also be stated clearly and distinctly that moral values in themselves never constitute a basis for demanding punishment.
The correctness of this point of view was convincingly proved by the German Max Scheler in his works 'Formalism in Ethics' and 'Ethics of material Values', page 374 and following pages. Natural law does not even demand the punishment of those who do not make use of of the right, permitted to them by natural law, to resist laws which among others violate the moral values of justice, loyalty and reliability. The punishment of such action is merely a measure of expediency, for otherwise the principle 'nulla poena sine lege' would logically be incompatible with natural law. This principle requires, namely, that the law giver does not require punishment for an inmoral action which at the time of the deed does not run counter any established standards of punishment, and even if a new law is created not to make the deed subject to punishment subsequently. The statement of the prosecution that the diabolical novelty, the mass proportions, and the ruthlessness of the offenses were apt to obscure and dull the thinking of jurists and laymen, leads inevitably to the question whether human beings are at all meant to find the truth. Here Here the realization of the German Lessing is appropriate. 'If God would keep all truth locked in his right hand and in his left the only ever active impulse for truth, but with the stipulation that I always and eternally err, and would say, choose!. I would humbly take his left and say: Lord, give me this, for truth after all is only for you alone.' This realization of his own inadequacy, which is taken for granted by the genuine jurist, leads him to voluntary selfrestriction, to think legally and to consider the evidence and the laws, which Justice Holmes once designated to be the task of a judge. We are familiar with the statement of Kant, the wise philosopher from Koenigsberg: 'Nothing in this world, or even outside it, can possibly be imagined which could be considered good without qualification, except good will alone. Good will is not good will alone because of what it brings about or accomplishes, because of its usefulness in accomplishing a certain purpose, but because of its willingness, which is good in itself.
' "The prosecution accuses Nebelung of having violated Control Council Law No. 10 in the years 1933-1945, although that law was not issued until 22 December 1945.
This law has designated certain facts as crimes against international law, has determined the responsibility of single individuals, and established the competence of the Tribunal. It was issued as an expression of the power of the conquerors over the conquered, and thus intends to serve the political and moral purpose of all law, the judge having to overcome the constant tension implicit in this double purpose.
"Nebelung is, accordingly, entitled to claim that, factually and legally, he be given a just trial. This includes, according to the general ideas of criminal law now prevailing, the examination of the legal validity of the law and the establishment of the objective and subjective facts of the crime.
"Two points of doubt exist regarding the legal validity of Control Council Law No. 10.
"In the first place, it may contain a violation of the principle 'nulla poena sine lege' insofar as it includes crimes which were not punishable in Germany nor anywhere else in the civilized world before this law was issued, that is in the time prior or subsequent to 1933. The IMT-verdict, too, has not been able to dispel these doubts since, according to continental legal ideas, 'lex' does not at all at all mean law but rather the established penal norm promulgated in due order, Secondly, Control Council Law No. 10 establishes the principle of inequality since the facts established therein refer only to nationals of the defeated powers, and since the four victorious powers did not introduce in their own countries identical constellations of facts constituting a crime and subject to punishment. This will be proved in the course of the exposition of the Defense.
"From the Control Council Law No. 10 can not he concluded that the judgment of the criminal guilt of a defendant is going to he modified. As the defendant represented by me is a German, one might conclude on the basis of the generally recognized rules of international law that the criminal guilt is judged according to traditional German principles. According to these principles the offender must know the implications of the offense and must he fully aware of its illegality. From the point of view of a material concept of guilt, it would he unjust according to German opinion to punish a person in spite of the fact that he considered his action lawful. Ignorance and mistake as well as involuntariness of action exclude an international criminal guilt. Consequently the offender must know at the time of his offense, that his act was contrary to a legal norm and that it was unlawful and forbidden. Therefore, a defendant can only he punished if he was aware of the illegality of his action.
TEE PRESIDENT: We have reached the time for the morning recess for fifteen minutes.
(Thereupon a recess was taken.)