A. The leading personalities were angry that among the many judges who had been trained in the old legal ideology, there was again and again propaganda activity carried out which the leading men of the National Socialist State did not like.
Q. May I ask you whether the judgment of a witness who will probably appear before the Tribunal, Gerhard Anschuetz' son, the present Landgericht director in Heidelberg, whether you will concur with his judgment in an affidavit which has not yet been submitted to the court in which he declared that Hitler's speech of April 1942, was a glorious page for German justice because German justice until 1942 was thought to be filled with terror measures? Would you, from your part, draw the same conclusion? Would you be ready to do so?
A. I think that goes too far, assessing a speech by Hitler whose boundless intolerance demanded further and further concessions. No doubt it is a page of glory for those individual judges who withstood the general tendency to place justice in the service of the National Socialist rule and who counteracted it, but that the entire picture of justice had been like that, and that this page of glory could now be claimed by the administration of justice, as a whole, I would not like to say. For even at that time, there were sentences by the special courts of the People's Courts which no doubt did not cause Hitler's anger, but of which he approved. Hitler only attacked the opposition in his blind violent manner. He attacked things he did not like. He saw sentences which annoyed him. One cannot say that speech means that the entire administration of Justice of that time was still opposing and had held out against National Socialism and its aims.
Q. Witness, what you said just now, I suppose I can call your own subjective opinion, just as it is an objective opinion of Anschuetz to say that that speech is a page of information for the whole administration of Justice.
A. The idea of that page of information can only be used in a subjective manner, but the statement that at that time there were already many judgments by the people's court and the special court, which no doubt did not displease Hitler, that is a fact which is not subjective.
Q. But, I should like to concentrate on the personal angle. Do you think Hitler had cause to hold such a fatal speech unless the majority of judges had opposed it. If the majority of judges had pleased Hitler, there would have been no ause for him to speak with such extreme severity which had such extraordinary affects, and to criticize in such a way things done by the jurists as a whole.
MR. LAFOILETTE: If you please, Your Honors, I'd like to state an objection. We have, I think, gone quite far afield. I have not said anything up to now. As I recall, the direct examination covered a statement about the relative relationships of the criminal law before and after Hitler -the question of whether or not there was pressure on judges, and the changes between the two. Then there was a hypothetical question asked. The examination has been very extensive as to the question of whether or not there was pressure generally. I think now we have reached a point where the witness has been asked whether or not Hitler's speech was made because German justice had been well administered. If the court will recall, if this request is directed to the hypothetical question, the hypothetical question was restricted to persons operating within the Ministry of Justice, to the position of prosecutors and to judges of special and people's courts. This question encompasses asking the witness' opinion as to whether or not some judges were good and some judges were bad, which I do not believe has now much probative value or serves to attack the validity of the witness' statement on direct examination--to affect the credibility of that statement. And to some extent, although I don't like to limit counsel on that field very often, I believe it is also a field which has been gone over rather extensively.
Upon those arounds, even though we are in cross-examination, and I know great attitude is available, I believe at this time that it is proper, maybe, to call it back a little bit more towards the subject matter of the direct examination.
THE PRESIDENT: The Tribunal is of the opinion that the cross-examination is within the field of proper cross-examination and has some relation of the matters brought out by the direct examination, and we are also adhering to the statement earlier made, that a great deal of latitude is permitted on cross-examination; and get there must be limits to it, and we hope that counsel will try to observe those natural limits and especially to avoid repetition.
DR. SCHILF: Mr. President, may I say briefly: The witness has been asked by the prosecution to be heard here on such a general subject, that is, on the development of the changes in German law since 1933. Only looking at it from the point of view of time, so many events took place during that period that the material is extremely wide, but I can give you the assurance that my cross-examination always keeps to the things which the witness said yesterday in the direct-examination. All things which he indicated during that direct examination, I shall try to concentrate even more in the remainder of the cross-examination.
DR. SCHILF:
Q. Witness, what I would like to know, that is why I referred to the Hitler speech, is to hear your opinion as to whether you think that the pressure on the judges and justice came from outside justice, and was greater from outside, or whether you think that the pressure came immediately from the administration of justice--from the Ministry.
A. To what period are you referring?
Q. To the period up to '42.
A. The pressure exercised on the judges came from the leadership of the state as such and from the Party; that it came immediately from the the Ministry, which was competent for this phere of public life.
Q. Yesterday, you mentioned an example and said that in 1936, the ********** had the Hoheits insignia attached to their robes, do you think that represented pressure from the Ministry of Justice or from some other authority?
A. Originally, that came from another quarter--from Hitler himself. * show, I assume it was that the administration of justice willingly and gladly dealt with this. And the hymn by Freisler, the Under-Secretary worded in exaggerated terms, in fact, it was merely a parody-- he awarded this party insignia to the judges who welcomed it. He said, "There is no longer a neutral judge." That indicates that the administration of justice was heavily involved in this event.
Q. Would you say in general that Freisler's expressions involved the entire administration of justice?
A. I said it was a parody. This is a charge, a burden on the administration of justice because the Under-Secretary of the Reich Ministry ********** welcomed the award of this insignia to the judges; and that he saw in it an obligation of the judges, and wrote four pages on the subject that say that now all National Socialist tendencies would be put into effect It would be necessary, although it would not be a pleasure to study these statements by Freisler and to read them out in their entirety to give the Tribunal an idea of them, to explain the hopes and wishes of the Reich Minister of Justice, that they welcomed this event.
Q May I ask you, witness, do you think Freisler was a typical representative of the Ministerial bureaucracy of the Reich Ministry of Justice?
A That demands a purely subjective point of view; he was the representative of the party in principle and all party tendencies in the Minister of Justice, but he was the under secretary in that Reich Ministry, and, a*** such, he acted and he signed this him, which he had written concerning the insignia; he signed it as under secretary.
Q Excuse me if I interrupt you; we know that; I only want to get ** view whether you personally considered Freisler a typical official of the German administration of Justice.
A Of the old style, no, definitely; but of the new style.
Q Yesterday you quoted Freisler, and you know that Freisler later became a judge; he was President of the Peoples' Court. I should like to you the same question. Do you think -- do you consider Freisler a typical German judge?
AAgain I can only give you the same reply, of the old style, no.
Q Of the old style; what time are you speaking?
A L933.
Q Not 1942?
A No.
Q Yesterday you said that a number of judges were of the opinion ** it was better to stay in the administration of justice; it would be better continue in this position than to give all the posts over to the typical ** who would flood into the administration. You then made a critical remark; answered that they wanted to prevent something, but that they could only on preventing things until they would be prevented themselves. I should like to ask you whether it was not an honorable reason that the judges, as such wanted to stay in their post to prevent people, undesirable people from assuming their post.
A That is an error in your question; I wasn't talking of judges but of a conversation I had with a high official of the Ministry; that is a different matter, concerning many judges, in fact, who found it a very serious sacrifice to remain in officer under the Nazi regime and to try to counteract the necessary serious effects. Under heavy pressure, which was ever increasing, this laudible attempt in many cases failed, and gradually their resistance, owing to the threat of economic and professional retribution gave way. Today I said several times that there were judges who under the very end held themselves. This is what I mentioned, concerning a conversation with a high official in the Ministry to whom I said that in the Ministry even though attempts were being made to prevent certain things that for any length of time that would be impossible, and that either those person would have to leave or would have to give in an themselves sign such thing which were purely serving the National Socialist rule of terror. If you ***** I can give the name of the official.
Q May I ask you if it is possible to really revert to that time, that day; what would you, yourself, told the mass of German jurists if you had said your present opinion, that they could not have gone on, from the moment that the party insignia appeared on the robe.
A I, as a judge, consider it would have been impossible to appear before the public as a judge without being ashamed.
Q Now, I want to discuss various questions which arose yesterday during your direct examination; it concerns typical features of the Nazi regime, the Nazi administration of justice; if I remember rightly, you were concerned with the introduction of the term "dangerous habitual criminal", of 24 April, 1942; you considered that a typical Nazi institution.
A That referred to the administration and other things.
Q In that connection may I point out to you that the clauses in decree of 24 April, 1934, that is the measure which referred to the socalled dangerous habitual criminal; that most of them are valid even now, and they are valid according to the law which I quoted this morning, which has the approval of the American Military Government, and what was promulgated with their approval, and which is called the penal code procedures, 1946.
The control council law, No. 11, which forms the legal basis, side by side with the code of penal procedure contains Article I, which says expressly rescinding of various rulings of the penal code in that last version during the Nazi regime, and particularly one it expressly says; Paragraph 42-A, 5, 42-K, where all other regulations concerning the so-called or habitual criminal concerning castration, and that is still a law, and I don't think I am wrong if I say that they are still valid laws at this time; then these measures against so-called dangerous habitual criminals cannot be considered typical Nazi measures; if you have an opportunity to compare it, you will see that a number of rulings are still valid as law now. For example, it be seen from paragraph 456, A, and 456-B of the code of penal procedure, 1946, I only want to quote one passage: 456-A, Section 2, the code of penal procedure, 1946, -- if somebody who had been deported returns, the execution can be carried out later, and the measure for protection, paragraph 42-G valid. Of the penal code, 456-B, Section 1, a measure connected with depriving the person of their freedom, of custody, and protection which run concurrently with prison sentence will be carried out when the prison sentence has been worked off." Will you have an opportunity, witness, to check up on that from the documents which you have?
A I have the ordinance here, but as you have read it out, I assume.
Q I should like you to now tell us concerning the general judgment you gave yesterday on the measures from April 1934, which you called typical Nazi institutions, what would you like to say on that now: have you any corrections to make on that now?
A In that form the earlier law did know them. The particular Nazi official concerning castration is definitely not such a measure. Today in the criminal procedure, which according to my information, it has a temporary nature of speeding purification. It has been rather roughly kicked out.
Q Now, I ask you do you wish to make any restrictions concerning castration as a typical Nazi measure?
A Yes, I particularly emphasized castration, but before you said other.
Q (Interposing) Do you want to talk about other measures. I find it necessary to refer to the Penal Code procedure 46. Witness, if you want to limit yourself to castration, then I should like to put this to you. I assume according to your statement this morning that you, during 1935 studied regularly the publication of the Deutsche Justiz. I have a Deutsche Justiz of 1934, an excerpt, and I want to ask you whether you read a number of articles which appeared before and after the decree of 24 April 1934, which introduce castration? It is by Reuffler. In the Deutsche Justiz of 1934 an article by Reuffler says as a means of, as a weapon of criminal policy -- sterilization in America; then the Norway sterilization law; 16,000 persons steriliz***** in 25 States of the USA. Subsequently further articles appeared, sterilization in Denmark; sterilization in the USA; sterilization of Jews abroad. Did you read any of those articles?
A Yes, I know that even before the Nazis there was much work written and said about this problem
Q Do you know the book and the title "Castration by a Swiss Jurist, Christian Wolf"?
A I have not read it.
Q Do you know that in Switzerland, Denmark and in Norway castration was advocated by leading jurists as possibly the only measure, the only safe measure to ruin the incorrigible and criminals?
A Yes.
Q You know that?
A Yes, I do.
Q If you know that, I believe your judgment will become a little bit doubtful when you say it was a typical Nazi measure when castrations were performed.
States that are democratic like Switzerland, Denmark and Norway introduced these measures and that is evident from the articles which I quoted and these measures had become law, for example, in Denmark. I should like you to give us your views on the matter in saying it was a Nazi measure?
A I think I shall have to come back to fundamental points. That what matters is not the abstract, but what matters is how it happened and in what circumstances. Under a dictatorship, in a state which is governed by a dictator, such a measure is dangerous, and much more dangerous than in country in which all legal guarantees exists, and where there is no need to fear that under certain circumstances the political opponents can be turned into a criminal and that such measures as castration would be applied in order to hit people who are not persona non grata. In fact, National Socialism actually used such measures, introduced them and it meant a danger to the administration of justice.
In other words, you want to say the fact that castration was introduced by law is not a typical Nazi element, but only the carrying out of that measure. Do you believe that in 1934 one could get an opinion on ****
A Yes, it was introduced because National Socialism would not oper** with parlementary guarantees and parlementary safety valves, particularly when it introduced such a dangerous and highly disputed measure. This was introduced without any discussion. The introduction of this measure in Germany was not preceded by parlementary discussions which normally on a large scale would take place before such a measure was introduced. Here National Socialism forged ahead with castration and other such measures or weapons.
Q Do you know of a case where somebody who had opposed political ** was castrated? Can you say that actually did happen and can you actually say that castration happened because you gave that as an example?
A No.
Q You believe that? You believe that is a means to eliminate a p***** opponent?
A Yes, in a certain sense.
Q You can not say it actually happened?
A I told you I can not quote a definite case, but that such endeavor were under foot to do that, even after the war.
Q And, you have that law now?
A No.
Q I only reported it because yesterday you told of other typical examples. Now, I want to discuss the second example, that is, the principal of double jeopardy. You said that it was undermined by several laws under the third Reich. You quoted examples, the so-called extraordinary nullity. May I ask you whether you know whether the nullity plea is a long tested institution of the Austrian law previous to the Anschluss?
A I know that legal means were employed in Austria law bureaus.
Q But, you, yourself, would not say it was a legal means. If it was legal means, then it does not inflict the principle of double jeopardy?
A I probably used the wrong expression when I said legal means just now. Double jeopardy, this means that there is a legal decision which w** one year can be attached and can be deprived of its legal validity.
Q You would say that you do not want to describe the nullity plea a a level means?
A No.
Q Then we must discuss legal Germanic questions because I think it is an extraordinary legal means. If you hold the view that the reviewing of sentence limited to one year as an interference with the principles of double jeopardy, then revision and principles, then you would describe revision and principles as extraordinary legal means. Every revision of a sentence in an orderly procedure, in my view would be a legal means. It simply a technical question whether this revision is a law in one year a shorter period. It is purely a technical jurist consideration which would made no difference here.
A Revision, of course, does not come over legal validity.
Q But if we are going to examine these principles then a decision must be made justly and that justice must be helped from within, but substantial justice can on the one hand be achieved by revision or by appeal or as it happened in the Austrian law, only over a longer period but by means of ne bis in idem.
JUDGE BRAND: Dr. Schilf, may I interrupt you a moment. I am not suggesting any ruling of the Court because the Presiding Justice would make the ****** of the Court, I am suggesting to you that the practice in cross examination is to ask questions and not to enter into arguments with the witness. And I do suggest that you have been delivering a lecture of your opinions rather than calling for the opinion of the witness.
MR. LA FOLLETTE: Your Honor, please, I also wish to object at this time to these questions with reference to the plea of nullification because I do not believe that the facts which are involved in the question are correctly stated. As I understand it, the plea of nullification was not review, it was simply the right to open a case and order it retried if the prosecutor did not like the first verdict. Now that is a far cry from a review or an appeal.
THE PRESIDENT: This is the usual time we have our recess, so at this time we shall have a recess for 15 minutes.
THE MARSHAL: The Tribunal is again in session.
BY DR. SCHILF:
Q. Witness, in answer to my question about whether the institution of the nullification plea came from the Austrian law -- that is, before the Anschluss -- you confirmed that. May I give you a further example according to which, by an extraordinary legal remedy or, in my opinion, an extraordinary legal means, a change of decision was possible or is possible, and which is still valid today? I am referring to the Liberation Law of 5 March 1946.
May I put another question to you first, witness? You have previously described that you were occupied with denazification cases. May I ask you, therefore, to tell us whether you have the function of a judge in this respect, or in what connection?
A. No; as presiding judge I have to do with personal data and reports about the officials of the district and their cases of denazification.
Q. But the law should do well known to you, and likewise Article 52 of this law should be known to you. Article 52 contains, if I may say so, a summary of various legal means, among which there are also the extraordinary objection, nullification plea, and cassation as we know it from the French law. It is nullification. It contains the possibility that the minister for special tasks may repeal each decision, that is to say, without any limitation.
May I ask for your opinion as to whether that is correct?
A. Yes.
Q Do you believe that there exist not only parallels between the nullification plea and extraordinary objection, but that this Article 52 goes further, that is to say that it destroys ti a further extent the principle ne bis in idem, against double jeopardy, of which you have said that the extraordinary repeal had done that?
May I ask for your opinion about that?
A. I should like to bring to your attention the extraordinary circumstances of the Denazification Law, which is not in the hands of the Administration of Justice, but which is a special task of the Ministry on the basis of special political circumstances caused by the capitulation and conditions prevailing during the twelve years before. I would not like to bring this into any comparison with the regular administration of justice of the Reich or with the jurisdiction of the Reich. Here we are confronted with an extraordinary and, I hope, unique measure and a law which was male necessary by circumstances which have never occurred before in the course of German history. I, therefore, do not believe that any comparisons should be made between the legislation and the measures for denazification.
Q. May I state my opinion on that? I am of a different opinion. I believe the parallel with the Administration of Justice is obvious. If ever, on the basis of this law, anybody may be sent to a labor camp for ten years, that, in its practical consequences, is identical with punishment in the penitentiary for ten years. And if, therefore, the Administration of Justice has, in your opinion, suffered severely by both there laws concerning extraordinary objection and the nullification plea, then at least one would have to draw the analogy that provision 52 of the Liberation Law -and I would also say to a much larger extent so far as figures are concerned, because not only common criminals are concerned with that but also people who had the wrong political opinion -- has consequences which definitely form a parallel, or can be compared to the Administration of Justice. Would you agree?
A. No. That, of course, is a matter of opinion, and I am of an entirely different opinion. In the denazification procedure, I do not see a procedure in it which is similar to the regular Administration of Justice, but proceeding against people who have brought about the disaster for Germany by which they, according to the degree of their participation in this national disaster, are called upon for restitution, and that, as well as the labor camps, are a very small part of the restitution which, in its fullest extent, is quite impossible for the misery which has been brought about by National Socialism.
I, on my part, do not see in that a parallel to the Administration of Justice, but an application to all these who are responsible for the National Socialist catastrophe, in accordance with their participation in smaller or larger part, and the reconstruction of that which has been destroyed by National Socialism.
Q. Witness, I do not like to argue with you, but -
MR. LAFOLLETTE (Interposing): If Your Honor please, I can't anticipate the next question, but the last one was exactly of the type to which I would like to object. If counsel wants to introduce the Denazification Law in defense and to argue to this Court on the question of whether or not there is quilt involved out of the question of double jeopardy, I think it is a substantive matter and not one which should be argued with this witness. I don't see the parallel, nor do I believe that it is a correct type of cross-examination.
The answers have all been intelligent. I don't object to the answers, but, as a matter of fact, I am glad we are getting the question because I am happy with the answers. However, I do think that we would proceed again if my very good friend Dr. Schilf would reserve this discussion with me at the end of the trial.
DR. SCHILF: Mr. President, may I make a principal statement with this? In my opinion, this question which I have just put to the witness has an immediate connection to tic direct examination by the prosecution. The witness was asked yesterday to speak about the development of law and legislation during the so-called Third Reich, and hoe has quoted and described several fundamental problems. He saidand I just want to quote one example -- "The introduction of laws providing for extraordinary objection, or means of extraordinary objection, and the nullification plea, are definite Nazi laws." Therefore, in my opinion, I should not be prevented from shaking that opinion of the witness by putting to him laws which were promulgated after the collapse of the Third Reich, and which now, in the same way, violate that principle as the Third Reich is alleged to have violated it. And if I pick out very typical examples, which probably are somewhat delicate today, I should not be deprived of the privilege of pointing out to the witness that what he has said yesterday, consequently, would have to apply also, or he would have to say the same thing as to laws which are now valid in Germany.
If I may, I ask for the decision of the Tribunal concerning the objection of the prosecutor, and to put this decision on that basis.
THE PRESIDENT: The Tribunal is of the opinion, in the first place, that defense counsel is expressing his own opinions more than he is drawing opinions from the witness and is probably subject to criticism that he is going too far into a subject that was not opened by the Prosecution counsel. It is true that the Prosecution counsel went pretty far afield, but I don't recall that the Prosecution counsel made any comparisons between the denazification law and any law of the Third Reich. Am I wrong about that? Assuming that I am right about that, this character of examination probably would not be competent at all. But in accordance with our rule that we will permit a very great breadth of cross examination, we will let everything stand that has so far been asked, but we think that it has gone far enough along that line. We again admonish counsel to be a little cautious about arguing the case at this time by too free an expression of his own opinion, rather than drawing the opinion of the witness.
BY DR. SCHILF:
Q May I therefore, with the permission of the Tribunal, continue my cross examination? I will try my best to heed the decision of the Tribunal. Witness, yesterday you mentioned the concept of undermining legal principles, and in that connection you mentioned the establishment of the People's Court; that is correct, isn't it?
A Yes.
Q In this connection you stated that it is true that the trial of the Reichstag Building fire was the cause?
A Yes, I did that.
Q Are you aware of the official cause mentioned to promulgate the law about the People's Court?
A Not at this moment.
Q The official reason and justification, which is convincing, states explicitly that the Reichstag fire trial had no inference, but I should like to add some more to that. I want to ask you, the competence of the People's Court was before in the hands of the Supreme Court of the Reich-Reichsgericht, and as a typical measure of the Nazis you have mentioned the establishing of the People's Court, because the lay element in contrast to the supreme court, that is the Reichsgericht, was found in the majority there.
May I ask you as a matter of principle whether you consider the establishment of a court where the lay element is in the majority, whether you consider that a Nazi institution, and therefore judge accordingly.
A I have not stated that the overwhelming majority of the lay element was anything typically Nazi, but the overwhelming participation of high officials who were considered absolutely reliable by the Nazi leadership of the state -- personalities from the Party and the armed forces who were in this People's Court. We are here not concerned with the question "lay court" or "not lay court" or "lay judges" but the question of the majority, or the participation in majority of party members.
Q That is clear, witness. That is obvious, but you will permit me that I take another parallel, and again the liberation law. The liberation law contains a provision stating that members of the Spruchkammern have to be reliable anit-Fascists. In other words, a court which has been established along political lines, because if we maintain a principle then we have to adhere to the fact that the question is, who is appointed for this court. That it is at all possible to appoint people for political reasons we don't object to, but that these people are appointed only according to party political principles. May I ask you for your opinion?
A I can only answer again that the comparison with the denazification law puts the whole matter on a different slant. I have pointed out that in the case of denazification we are confronted with a unique measure made necessary only by the Nazi terror regime, its collapse, and the consequences of its collapse, that only that made it necessary, if you could call it that. The fact that in the Spruchkammer there are lay judges who are to determine the responsibility of national socialists and that certainly among these lay judges there are no national socialists and that one does not call the old fighters or national socialists into these courts to judge, that of course needs no other explanation. In the selection for the People's Court with the pillars of the dictatorial regime one was only concerned with the establishment of a terror regime in criminal jurisdiction.
Q Witness, I was only concerned with the principle of establishing a court and appointing people for this court from party political points of view and that you considered this wrong. My objection should only mean that consequently as consequence of the law of 5 March 1946 you would have to disapprove of that principle also, and in this connection I would like to put a question to you. You have explained that the purpose of the law was an entirely different one. Is it known to you, however, that the jurisdiction, the administration of justice of the Cassationshof as a subsidiary law decided the procedure for the Spruchkemmer and that with the words that if the liberation law should not be complete to cover the procedure that then the criminal code should be applied; are you familiar with that decision?
A Yes, but that does not make the liberation procedure a criminal procedure, but in order to supplement matters of procedure which are not covered, provisions of the criminal code are applied.
Q The principle about which we are arguing -
MR. LaFOLLETTE: I don't think the witness had quite finished answering, and I would like to request that Dr. Schilf permit to give his answer to the question. I am still somewhat objecting to the question, but if the witness started to answer, I do believe he should be permitted to give his full reasons for an answer to the question.
THE PRESIDENT: It certainly seems that we are still dealing with the denazification law, and I think the Tribunal has pretty thoroughly the views of counsel as well as the witness already.
BY DR. SCHILF:
Q Witness, I ask you to excuse me if I interrupted you, although I didn't have the impression that I interrupted you, but my impression may have been wrong. The next point which you mentioned as undermining of justice in the Reich was the foundation of the principle "Nullum crimen sine lege," no crime without law, nothing to be considered a crime unless the law exists. I should like to ask you whether you are familiar with the charter of the International Military Tribunal?
A Yes. The first trial, you mean?
Q Yes.
A Yes.
Q The Control Council Law No. 10, you are also familiar with that?
A Yes.
Q Do you believe that the conclusion is permitted that one could say about those that the principle "Nullum crimen sine lege" -- that there is at least doubt about its application, because Control Council Law No. 10 wants to punish crimes which, according to German criminal law, at the time when they were committed were not considered crimes, were not considered punishable acts? May I ask you to tell us your opinion about that?
MR. LaFOLLETTE: Just a minute, please. I object to this question, Your Honor, for the reason that the legal effect of the charter and Control Council Law No, 10 are legally debatable questions, as to which I would take the position, and will take the position in the argument in this case, that the principle referred to is net violated. With reference to the argument of counsel that they seek to punish crimes which were not crimes under German law in Control Council Law 10, again I must take the position that that argument proceeds from an erroneous premise obvious in its statement, because the crimes which were sought to be punished are crimes under the common international law and were crimes contrary to the universal standards of humanity and the moral code of all civilized nations when committed; that this is an international tribunal administering that law for these crimes; that therefore the issue as to whether or not any crimes committed were crimes under German law is not the issue before this Tribunal, and therefore there is no logical analytical comparison to be made between the jurisdiction asserted in the charter and Law 10 and that about which the witness had been asked.
For that reason the question itself is not a proper question in my opinion because it is based upon an erroneous misconception of the law, and finally it again amounts to arguing with the witness as to the effect of a law. For that reason it is objectionable. I realize that in this case we are going to be confronted with issues of law and differences of opinion between that which I have stated and that which Dr. Schilf has stated. But it seems to me that those are questions which lie in the substantive law of the case. They were not covered by the direct examination. And the question itself, as it is framed, does not present a parallel situation. It is not fair to the witness.
THE PRESIDENT: If I have misconceived the question of defense counsel, I would like to be corrected. My understanding of the question that was propounded related to the soundness or unsoundness of the opinion of the International Military Tribunal on the applicability of the maxim, no crime without law. Am I right or wrong about that?
DR. SCHILF: May I briefly state this. The meaning of my question was slightly different. The witness told us the Third Reich had repeatedly violated the principle, nulla poena sine lege, no crime without law. I only wanted to ask him whether in the Control Council Law Number 10, and the Charter of the International Military Tribunal, it was justified to say about the two, that here also that principle was not adhered to. I wanted to hear his opinion on that point in comparison to what he had stated yesterday.
THE PRESIDENT: I think it appears from what Dr. Schilf has just said that my understanding of the question was not greatly at variance. I remind counsel that Article 10 of our charter, otherwise know as Ordinance Number 7, makes the International Tribunal Law that is absolutely binding upon us so far as they make findings of fact and so far as they found illegality of some of the Nazi organizations.
MR. LAFOLLETTE: Your Honor, may I further point out that the question, clearly, is not relevant to a decision of any issue in the case or any issue involved in direct examination for the reason that if, assuming for the purpose of argument only that the Charter of the International Military Tribunal and Law 10 of this Tribunal did violate the principle which Dr. Schilf has declared is violated, that does not in any way, in answer to that question, alter the answer given by the witness that under the Third Reich this rule was violated.