However, this description does not correspond with the phrasing of the verdict of the International Military Tribunal on page 16939 of the transcript. The English text of the reasons for the verdict expressly used the German word "Amtsleiter" and still further restricts the extent of the group of "Amtsleiter" in a subsequent clause. Above all, only such Amtsleiters are to be considered participants in a criminal organization as "were chiefs of offices on the staffs of the Reichsleiter, Gauleiter, or Kreisleiter level."
Neither of these definitions applies to the defendant Oeschey. Oeschey was not an Amtsleiter. He was never formally appointed to this position. However, in order to convict him on this count of the Indictment it would first be necessary to establish that he had been appointed Chief of the Gau Legal Department by the party agency which was duly authorized to make appointments as Amtsleiter. Now, in my Document Book II I have submitted as Exhibit No. 30 an excerpt from the Organizational Book of the NSDAP, issued in 1940, which lists the agencies authorized to name and appoint Political Leaders. I have selected the 1940 edition because Oeschey entered his Gau office in 1940. A distinction must be drawn between the "Berufung" (provisional appointment) and the final "Ernennung" (appointment). Only the latter is of any authority to show whether the person appointed actually became the holder of an office. In Table B on page 5 of the above-mentioned document a chart is included in which it can be seen under "Gau" that the appointment of Gau officials with the rank of Amtsleiter and up is made by the Fuehrer, and that the Fuehrer's Deputy, the subsequent Party Chancellery, has to sign the appointment. However, Oeschey was never appointed Chief of a Gau Legal Department by the Fuehrer or the Fuehrer's Deputy; he was merely temporarily entrusted with the management of the legal office of Gau Frankenoma by an order of the Reich Legal Office of the NSDAP of 30.7.1940, an order which the Reich Legal Office, as I have previously explained, was not at all authorized to issue.
The affidavits submitted by me (my Exhibits 10 and 14) show that Oeschey was never more than provisional chief of a Main Gau Office, namely the Main Gau Office for Legal Counsel in the Gau Legal Department. This is further shown by Exhibit 584 submitted by the Prosecution, dated 10 August 1942, and signed by Oeschey with the official title "Provisional Chief of the Main Gau Office" ("kommissarischer Gauhauptstellenleiter"). This Prosecution document provides valuable support for the statements in my Daenzl affidavits (my Exhibit 10), according to which Oeschey had been duly appointed Provisional Chief of the Main Gau Office by Kreisleiter Aimmermann, who was entrusted with the conduct of business in the Gau, and signed all documents with this official title.
In this connection it must not be overlooked that from August 1940 until its final dissolution in August 1942 the so-called Gau Legal Department existed only on paper. As a result of tho restrictions made necessary by the war all of the 5 Main Offices of the Gau Legal Department that had been originally planned wore shut down with the exception of a single one, namely the Main Office for Legal Counsel. Accordingly, it is no accident that Oeschey was not appointed Chief of the Gau Legal Department. The Gauleiter's Office, indeed, saw that as a practical matter the Gau Legal Department no longer existed and logically transferred to Oeschey only the provisional direction of the one section of the Gau Legal Department which was still left, the Main Office for Legal Counsel. Oeschey was, therefore, not an Autsleiter within the meaning of the IMT verdict. He belongs to the persons who were excluded by the verdict from tho declaration of membership in a criminal organization.
Neither was he a department head in the Gauleiter's Office. If the IMT verdict so expressly emphasizes this condition, then one must realize that they were laying particular stress on the fact that not all Autsletier are to be considered members in a criminal organization, but rather only those who were themselves chiefs of a staff of some importance. However, as likewise appears from my Exhibit 10, Oeschey had only one, or at the most two, woman typists at his disposal; he did not have one male assistant with the rank of a Political Leader who could have been subordinate to him, nor any other employees, but above all he had no sphere of tasks which required him to work on his own initiative and would have permitted him to act independently.
I shall also refer to the following, only by way of precaution:
The IMT verdict requires that those persons who are to be regarded as members of criminal organizations must have acquired or retained their membership although they know that the organizations were being used for the commission of crimes according to Figure I, 1 of the Charter of the Control Council.
Concerning the question as to what this knowledge signifies within the meaning of the IMT verdict my colleague, Dr. Maensel, has submitted a Trial Brief to the Court in which the problem is exhaustively discussed. We come to the conclusion that mere knowledge alone is not enough, but that the members must have also voluntarily adopted the aims of the criminal organizations. The burden of proof regarding knowledge lies on the Prosecution, as this has been explained in more detail under VI of the Trial Brief. The Prosecution has apparently recognized that this burden of proof is incumbent on it and attempts to prove through a number of witnesses and documents that the Knowledge of the criminal aims was a general one. This proof, however, is not convincing, nor does it agree with the findings of the IMT verdict, which, for example, in discussing the Corps of Political Leaders of the NSDAP, defines exactly the sources of special information which are to be taken as a reason for presupposing knowledge on the part of Party office holders in individual cases. This knowledge, therefore, was not a general one, but was based on special information which was not accessible to everybody, and which in particular the defendant Oeschey did not possess, either, as he himself has credibly stated on the witness stand without refutation. If the Prosecution, on the other hand, has introduced a witness with pictures and documents concerning the evacuation of Jews in Wuerzburg from which it is apparent that certain employers had knowledge of the evacuation of their Jewish employees which was then imminent or already begun, then this is no proof that Oeschey knew that the Corps of Political Leaders participated, as was charged by the IMT verdict, in preventing German public opinion from rebelling against the enslavement of the Jews. In this connection one must just stop and consider what Oeschey actually had to do in his Party office and how he carried out the duties of this office. From the affidavits which have been submitted by me, especially my Exhibits 3,5,8,10 and 14, it appears that Oeschey's essential task in the Main Gau Office for Legal Counsel consisted of providing material and advisory assistance to persons seeking justice.
As is shown by a number of proven examples, he did this without personal profit and without regard to party membership or to whatever may have been the political opinions of the person concerned, and he gained a good reputation for himself in Nuernberg from this work. The people know that there was a man in the Gau office to whom they could turn in questions of legal difficulties and from whom they could receive assistance. This assistance also extended to political matters, that is, cases where political offices were opponents or had an interest in a specific solution of the case. Cosehey was not called in at all for work of a really legal-political nature. Besides legal counsel, he was merely given complaints which were mostly directed against judicial measures. For him, as a member of the Court, working on these complaints was a painful task, which, however, he undertook with great tact, so that the interests of justice were not injured or even once distrubed. Contrary to the instruction which he received as a party official, he did not forward complaints of this kind to the Party Chancellery, as was prescribed according to Klemmis's testimony (transcript, p. 5087), but saw to it by direct contact with President Doebig of the Obewlandesgericht that nothing ever happened to the disadvantage of the person concerned. Considering the influence which certain Party circles could exercise at that time and the energy with which such complaints were followed up, as we now from experience, this was certainly no easy task. It would be superfluous to go into individual cases. I should only like to emphasize that even the complaints in the case of Doebig, to whom, judging from the length of the Prosecution speech, more importance was attached than was really his due in view of the more personal nature of this dispute between Rothaug and Doebig, did not make his situation any worse, but merely -- and probably not least through Oescheg's intervention -- led to his transfer to another office.
Oeschey did not derive any personal advantages whatsoever from his party work. In the last analysis he had only his professional qualifications to thank for his promotion and he did not receive any further promotion in spite of the warm recommendation of Gauleiter Holz; this fact might also serve as a proof that in the final analysis professional ability and seniority were the decisive factors in the majority of cases of promotion even in the Nazi state, and that the suggestions of Party offices were nothing more than suggestions which could be regarded or disregarded by the competant authorities. Oeschey's attitude and activity in the Party, therefore, in no way indicates a criminal intention which could be considered knowledge of the incriminating actions of the NSDAP within the meaning of the IMT verdict.
Oeschey's sphere of tasks in the Party was also not one which was likely to furnish him any knowledge of criminal actions of the Party. Thus, the germanization of non-German areas, the persecution of the Jews, the carrying out of the slave labor program, the mistreatment of prisoners of war, including the lynching of Allied airmen, had no point of contact with his Party tasks. He had to deal with foreign workers only in his work as a judge; however, no foreigner ever complained in court about illegal measures taken by German offices. Oeschey twice came into contact with Jews in his capacity as a judge. One case was an offence involving foreign currency committed by a Jewess, the other a malicious attack on State and Party committed by a Jew. Neither case was one which was likely to give him any knowledge of the participation of Political Leaders in the persecution of the Jews. As a judge he was not able to acquire any knowledge of what happened to the Jews during or after their term of punishment, since he had nothing to do with the execution of sentences and penal administration. The germanization of nonGerman areas and the mistreatment of prisoners of war are completely remote from Oeschey's sphere of activity in the Party and as a judge.
Now, one more interpolation. There are seven points which are incorrect in the plea of the Prosecution. Concerning these points which need correcting, are:
One. Oeschey is supposed to have described himself as a convinced Nazi, and I too am supposed to have described him as such in opening speech. Both are incorrect. It was merely testified that Oeschey joined the NSDAP for conviction.
Two. In No. 3, 4, and 5 Oeschey is called a liar because he testified that before 1940 he never acted as an expert for the Nazi party, although on the 27th of Sept. 1935, he gave a lecture to the jurists league. Those two points are not contradictory for that lecture was merely a professional lecture about the law, concerning the unity of the party state, and it was held before a small audience in the jurists league, that is to say, it did not constitute any work as export for tho Nazi Party. Oeschey, who is well familiar with Prosecution Exhibit 409 did not think it necessary to make express references. Other witnesses have established the fact that there is no contradiction here.
Three. In the Prosecution plea it says in August 1942 all Gaurechtsaemter in the Reich were dissolved, which is correct, and I think that what the Prosecution meant to say was that the Gauhau pt rechtsameter were dissolved and as far as they still existed they were incorporated into the Gaul Staff Office.
Four. Tho Prosecution has no doubt that Oeschey was a member of the inner circle and an intimate friend and advisor of the Gauleiter. As no evidence has been submitted to substantiate this assertion, for the tribute made to Oeschey's work and abilities in a letter from the Gauleiter means no more than an evaluation given by a superior in office. I can only assume that the statement in the Prosecution plea represents only the personal unfounded opinion of the Prosecution. My Exhibits 2, 3, 4, 8, and 14 shows that to the contrary.
Five. According to the Prosecution Exhibit 561, Oeschey is supposed to have had knowledge of the transfer of Jewish real estate.
However, the Prosecution itself has taken the view that the contents of the document contained in Exhibit 561 did not originate with Oeschey but with Rothaug, Oeschey, therefo re, could obtain knowledge of the matter only in December, 1942, that is long after it was settled. The same is true of the deportation of Jews. Exhibit 561, for the rest, says nothing about the participation of political leaders of the Nazi Party in the persecution of Jews.
Six. Prosecution Exhibit 584, a letter from Oeschey to Doebig, dated 10th August, 1942, is supposed to be proof for his criminal interference with the administration of penal law. If one reads that letter one sees that it is worded in an altogether polite and moderate terms. It is addressed to the president of the district court of appeal.
16 0ct-A-FL-22&23-1-Cook (Int. Steuer) If one reads through the letter one sees it is worded in an all together polite and moderate term.
It is addressed to the President of the District Court of Appeals and contains observations of the District Court of Appeals concerning obvious legal mistakes which occurred in the practices adopted by the Juvenile Chamber. It does not constitute an influence on pending cases. No criticism can be exercised on the letter concerning the formal and contents.
7. Concerning Prosecution Exhibit 561, the letter which Holtz wrote dated 18 March, I do not think there is any need for me to voice my opinion.
Therefore, I also come to the conclusion in Count IV of the indictment that Oeschey is not guilty, because he did not belong to the group of Political Leaders who have been declared members of a criminal organization by the INT, necessarily so because he lacked any knowledte of the criminal aims and actions of the Party and did not participate in them,
DR. SCHILF: For the defendant Mettenberg.
THE PRESIDENT: Are there English translations?
DR. SCHILF: Yes, Your Honors, I believe it is available.
THE PRESIDENT: We have not received them. Do you have the argument for Mettgenberg?
DR. SCHILF: Yes, Your Honor.
THE PRESIDENT: They have not yet been received as of the recess and it may be they have been delivered since. Do you know when they were delivered?
DR. SCHILF: The translation was delivered, I believe, Monday morning. It must be available, because as far as I know the Translator had it available and apparently it is just a few missing copies.
If your Honor approve, I would propose that Dr. Aschenauer for the defendant Peterson read his final plea. That seems to be available in 16 0ct-A-FL-22&23-2-Cook (Int.
Stouer) sufficient number of copies of the translation.
THE PRESIDENT: Very well. The same difficulty appears in this case. (Document are produced) We will hear the argument in behalf of the defendant Peterson:
DR. ASCHENAUER: Your Honors, May I start my final plea? With the approval of Your Honors I will read only excerpts of my final plea but I would ask nevertheless the entire final plea be included and accepted into the record as submitted to the Tribunal.
THE PRESIDENT: That will be ordered as in the other cases. The Secretary General will advise the necessary departments to incorporate in the daily transcript the entire transcript as written and any interpolations which you may add.
DR. ASCHENAUER: Your Honors:
May it please the Tribunal General Taylor believed to be able to indict the members of the Reich Ministry of Justice, the Reich Public Prosecutors and the Judges in the name of the civilized people of the world.
He believed that a new standard of right and wrong had arisen, caused by the jurisdiction in the years from 1933 until 1945.
General Taylor overlooks the historical facts. At all times the possibility existed of a conflict between law and justice, between the letter of the law and the ideal of justice. Just because he thought to be bound to the higher law instead of to the law in force in the City State, it was Sokrates' fate that he had to drink the cup of hemlock. Antigone, too, died, because she did not observe the orders of the king "because of a binding force, and no human being came over come the unwritten, everlasting law of heaven."
The conflict between the codified law and the higher law which arose during the trial is not the result of the National Socialist revolution but that of a development which took centuries. During the first half of the 19th century the natural law was subject to an extensive undermining.
It was the absolute monach who took the lead in the abolition of this higher law; the nations followed later. Bodin, the french political scientist (died in 1596) established as highest principle: the indivisibility of the powers. According to him the leadership of a state can only be exercised by one authority and must not depend on any external or internal forces, nor on the paralyzing fetters of antiquated laws. The doctrines of the Errastianism and of the realistic policy of Macchiavelli destroyed the Christian organic conception and resulted in making "the family of the nations" an anachronism. Kant, Hegel, Fichte, Treitschke and von Ihring transferred the doctrine of the divine rights of kings and of the passive duty of obedience of the people from the absolute monarchy to the modern state. The state now appears as a personified deity, and any diverging opinion is considered not only as treason but, as a sacrilege.
Utilitarianism as coined by the Englishmen Bentham and Mill had nothing but contempt for the attempts to restrict sovereign powers. These men consider the natural law to be senseless and misleading. Positivism which maintained that Knowledge is relative and subjective and which is characteristic for the second half of the nineteenth century, found its American variant in Pragmatism. Related to Utilitarianism in emphasizing the predominance of the practical, pragmatism considered truth as equal to usefulness. In the course of the 19th century the Englishman John Austin and his disciples, among others, completed the separation of law from morals by incessantly repeating the theory that law and ethics had nothing to do with each other. This can hardly be called a declaration of war on the power of the state. The casuistic system of Jurisprudence which originated at the Havard University in 1870 and which was dominated by the "Austin ideology" likewise separated Law from social science and morals. There were jurists who concentrated their attentions on individual cases and who saw therein the sole task of law.
Many American jurists therefore, untouched by philosophical questions, are, in the words of Pound, of the belief that everything that is done in the course of the judicial decision, is Law, because it is done. But it is not done, because it is Law.
Ben William Palmer, with reference to Continental Europe, writes in the June number 1946 of the "American Bar Association Journal":
"At about the end of the 19th and in the first half of the 20th century a veritable deluge of law regulations came to pass, Formerly, law had been regarded as the incarnation of reason, because, originally, law had meant law cases settled by reason. But then the accumulation of legal prescriptions came into being, prescriptions which, issued precipitately and contradictory to one another, were not connected by a leading principle nor in accordance with reason. And only too often they were obviously nothing but more orders. And looking at it realistically, and perhaps somewhat cynically, law was regarded or interpreted ass nothing but the expression of the will of the interests of some groups. The people forget the natural law, and, in their eyes "law" had no relation to reason and morals........
The "due process-clause" of the 14th amendment to the Constitution was raised, to the level of an independent legal principle. Although the idea, that this clause was being applied to the disadvantage of philanthropic legislation spread more and more, the dislike for a clause which was based on the true natural law grew stronger at the same time. Instinctive dislike thus completed the philosophical undermining of the perception of natural law." (End of quotation) Subsequently I should like to quote from this periodical the following words of Mr. Palmer:
"Certain inferences from the philosophy of a Justice Holmes can be traced back to Hobbes and are leading directly to Hitler, as: "law is Power, not reason, Man has no inviolable rights. In the treatment of its nationals or of other nations, the sovereign state is not subject to any higher law."
(End of quotation) This is the field of intellectual tension which had to be described in detail in order to convoy a. true appreciation of the precarious position of the judge in the "Dritte Reich".I will now skip the Chapter on "Legal Positivism and Judges" and will continue on page 7 of the English version, beginning with the chapter:
"International Law and Judges":
Professor Jahreis states on page 4202 (German Record): "Gerhard Anschuetz whose last position was that of professor at Heidelberg was, actually the temple guard of the Weimar Constitution, and if he merely sensed the attempt to shake the foundations of democracy, perhaps by creating a group of judges who had the right to review decisions by the Reichstag, he could get extremely furious." (End of quotation) On page 4205 (German Record) we read:
"On the European continent in the course of four centuries a development has taken place in which law and morality in legal and in legislative thinking are sharply separated. And as soon as a question of morality arises, the jurist on the European continent says: As a jurist this has nothing to do with me. That may be regrettable, and I myself do think it is regrettable, but , after all, that is the historical truth."
In order to show how far this goes, may I not submit to the High Court the opinion of Gerhard Anschuetz with regard to section 102 of the Constitution, namely his opinion with regard to the problem whether the courts in Germany are permitted to doubt the validity of a law, decreed by the Reichstag, for reasons of morality. I quote; this is from the commentary to the fourtheenth edition, page 176:
"If it cannot be admitted that the judge is entitled to examine whether the law was constitutional, he is even less entitled to refuse to obey the law which was created in conformity with the constitution, because in his opinion the law is not compatible with certain norms - which .are higher than the legislator (for instance customs, morality, good faith, law of nature) or certain judgments of value (justice, equity, reason)." (End of quotation).The law concerning the constitution of the courts (Gerichtsverfassungsgesetz) of 27 January 1877; Art.
1 states:
"The judicial authority is exercised by independent courts which are subject only to the law." (End of quotation) We read in the sentence of the Supreme Court of Bavaria of 24 October 1927:
"The judge decides whether the defendant is guilty or not guilty, not according to his free discretion or arbitrarily, but he is bound by the law and the forms of law." (End of quotation) In a decision in volume 118 (published in 1927) we road:
"The legislator is an autocrat, and is not bound by any limits except those which he has set for himself in the constitution or in other laws." (End of quotation) In the decision of the Reich Supreme Court of 15 December 1939 we read:
"In awarding punishment the judge is not allowed to exceed the limits, set by the penal laws, except in cases provided by the law. If the prerequisites for such a case are not existing, the judge has to award punishment within the limits set by the lawn even if in his opinion the minimum penalty provided by the law should be too severe or the maximym penalty too mild." (End of quotation) The witness Dechant declared in the witness box:
"Purely human points of view were limited by the legal provisions, the knowledge and correct application of which was the task of the jurists."
These quotations describe the legal situation. The consequence was that the German jurist or judge was made defenseless with regard to laws with arbitrary contents by the positivism and its conviction "Law is law". There can be no doubt that the judge is merely an executive agent of the power of the state, if he applies laws which are merely enforced orders without moral dignity.
But it is another question whether this judge rendered himself liable to punishment, when he applied laws which are incompatible with the law of nature, and recognized or had to recognized that the laws were unjust, or that the political power which he protected in trials for high treason, acted in an immoral way. The problem is based on the fact that here two postulates confront each other, both of which have their source in the moral fundaments of law. The postulate to emphasize by penal laws the binding of the positive law to principles of the moral law of nature, and the postulate of limiting the authority of the state to punish, which is expressed in the proposition "nulla poena sine lege", the violation of which the prosecution charges in this case. This proposition sets a limit not only to the power of the legislator, but also to the power of the judge. In addition to that: The demand for punishment cannot be based on moral values. The law of nature asks that we should not obey certain laws which are incompatible with the principles of justice and morality. The law of nature offers a right of resistance, but not a right to punish those who do not make use of this right of resistance, The death of all those who offered resistance to the laws and orders of the dictatorship-state would lose its moral value if we would punish those who acted in direct obedience to the positive law.
There is further another point of view which should not be overlooked, The Weimar era did not know the right of the judge to examine whether laws are inconformity with the principles of the law of nature. Also science has denied that such a right exists. In this connection may I not refer to the conferences of the German Professors for Public Law in 1926. It is, therefore, extraordinarily doubtful, whether, it is correct not only to assume now such a right to examine laws, but, even more.
to construe a duty to examine the law in that respect and to provide punishment for the nonfulfilment of this duty. These doubts are even greater if we want to punish the judge for sentences for high treason etc. For us human beings it is impossible to consider a certain form of government as just. As a result of this consideration, the science of law, and also the science of International Law, has up to this time, made the recognition of a government dependent upon the fact, whether this government has actually exercised an authority. In consequence of this the judge applied the high treason laws of a government which fulfilled these prerequisites.
Therefore, judges who applied laws which are not compatible with the law of nature, cannot be punished. This result conforms to the doctrines of the rational law of nature of the 18th Century. According to this doctrine, there exists a right of resistance and a right to refuse obedience, but no punishment.
International Law and Judges.
The Prosecution has submitted in its case against Peterson 3 sentences against Czech people. These are:
Prosecution Exhibit 512 (Case Zelezny) " " 513 (Case Chalupa.)
" " 514 (Case Pichrt) (German Record pages 3406/3407).There is no doubt that the proceedings were carried out properly, and also that the penalties were within the limits of the law.
Even the prosecution has not claimed anything to the contrary.,Formally permit me to refer to Petersen Exhibit 31. With regards to facts may I not add, that if these cases had been brought before the Supremo Military Court, the same penal laws would have been applied. There is also no doubt that a Czech Legion existed. This question has been clarified by the submission by the Prosecution of Exhibit 127 and exhibit 220 and by the statement of the witness Brem (German Record page 3502 and following).I will now skip pages 8, 9 and 10 and 11 and will continue on page 12:
The problematic question which has been raised by the prosecution is as fellows: "Have the German judges who passed judgment on Czechs in matters of high treason and applied German laws in so doing, rendered themselves liable to punishment thereby? For the support of its argument the prosecution submitted exhibit 378, the Czech Government report, on 23 April 1947 (German Court Record page 2559). The latter states:
"The Czecho-Slovak Republic has not only been occupied by the German Reich, but also completely annexed. The resistance of the Czecho Slovak people against this annexation was expressed by different means. The people's court was one of these courts engaged in the suppression of all actions, even the insignificant ones aiming at a termination of this condition which represented a violation of international law......
The jurisdiction of the People's Court extended over the Protectorate.
........We, therefore, restrict ourselves to this fact of its actions which lies outside of the rights of an occupying power......
It is manifestly so, that high treason can be committed only by persons who are subjects......
...... It is entirely clear, that the GermanPenal Code did not justify the protection of a state which had unlawfully been created, i.e., through annexation, and that the judicial procedure end the right to impose drastic sentences for aiding and abetting the elimination of the state does not have a foundation in International Law......" (End of quotation) The opinion of the International Military Tribunal established that the annexation of Czecho-Slovakia was contrary to International Law.
From this, Colonel Ec'er, the Plenipotentiary General of Czecho-Slovakia for the United Nations Commission for War crimes deduces that the verdicts of the People's Court against the Czechs are illegal.
The legal position is not as simple as Col. Ec'er thinks it is. This showed itself already in 1927, when the International Court in the Hague wap hearing a complaint brought by France against Turkey. 6 of the 12 judges took the position, that the state was justified in punishing foreigners for acts which had been committed abroad. 6 judges were against it. However, it is interesting that, in addition to the opinion of the court six diverging opinions of the dissenting judges are on hand. In this case, the so-called lotus case, it was established in the opinion, that the states may especially then bring a case before their courts, when the acts of the foreigners have been directed against the foundation of the existence of the state. (German Record, page 4253 and following).
That the foundation of the existence of the German Reich had been affected by the acts of Zelezny, Chalupa, Pichrt need not especially be emphasized, if the facts of the case are brought to bear.
The International Court of the Hague made, among others, the following statements, the great significance of which justified their complete reiteration:
"The significant limitation of sovereign power through International Law consists in that it prohibits the execution of sovereign power on the territory of another state, when there is no special norm of authorization. In this sense judicial procedure is certainly territorial. It cannot be practised outside of the territory unless a special norm of the customary or conventional International Law permits the same. However, it does not follow therefrom, that International Law prohibits a state from practising judicial procedure over events outside of its territory, if it is unable to show support in a special res 16 0ct-A-FL-22&23-11-Cook (Int.
Steuer) pective norm of authorization in International Law.
Such a thesis could be stated only, if International Law generally would prohibit the states from extending their legislation and judicial procedure over persons, property and actions outside of their territories, and would grant them such an extension only in specially determined cases, as an exception to this prohibition. However, this is certainly not the present status of International Law. Far from prohibiting the governments from extending their laws and judicial procedure over persons, property, and actions outside of their territories, it allows them in this respect far reaching freedom (large liberte), which is restricted only in a few cases by prohibitions. In every other respect every state remains at liberty to chose the principles which it considers the best and the most expedient" (Petersen Exhibit 61).
With this thesis of the International Tribunal Wegner, Cybichowski and Triepel are in agreement. The latter even represents the view in his "Voelkerrecht und Landesrecht" page 275 that International Law allows every state "complete freedom." to extend purely penal laws even over the actions of foreigners abroad. The same view as that of Triepel is represented by Beling, Hegler, Harburger. The French authority in the realm of International Law, Maurice Travers, also considers it admis sible according to International Law to extend the application of penal laws to foreigners abroad within a certain scope. According to him every social group, especially every statem can breely determine with respect to law, how it wants to safeguard its social life through penal laws; therefore, it may also establish freely how the territory in which these penal laws are valid, is to be measured off to insure this protection. In consequence, we read as follows in the work: "comparative Presentation of German and Foreign Penal Laws" (Lautz exhibit 227);
"The action of high treason committed abroad against the German Reich can also be prosecuted according to the penal laws of the German Reich, without regard as to whether the perpetrator is a German or a foreign," (End of quotation) During the discussions of the penal committee of the Reichstag regarding the planning of a general German Penal Code the delegate Dr. Havemann refered to the following passage:
"if a foreigner abroad has committed high treason, (or) treason; then a public complaint can be brought against him only with the approval of the State Minister of Justice", and pointed cut that Russia, Argentina, Finland, Denmark, Jogo Slavia, and Spain furthermore claim protection for themselves under penal law for a whole series of other offenses, even for petty offenses committed by foreigners abroad. (Lautz exhibit 22). Within this frame is also contained the provision, that a foreigner who has committed abroad an action of high treason against the German Reich can be prosecuted. It must not be forgotten in connection with the facts of the Pichrt and Zelezny case under consideration, that the aim of the Czech Legion was not only to participate actively in the Battle against the German Reich on the side of the hostile powers, and to eliminate the Protectorate of Bohemia and Moravia by force, but much more, to set up a Czecho-Slovak state, at least within the old boundaries, that means, inclusive of the so-called Sudentengau, if not actually according to the vision of the Czech Major Kufner (compare prosecution exhibit 514). After the Nurnberg IMT Trial, solely the annexation of Bohemia and Moravia were designated as contrary to International Law.
In the Chalupa case the facts of the case are similar, The activity of the Communist P.C. aimed at the elimination of the Protectorate by force of arms, as well as the overthrow of the order of the state in the old Reich, since the P.C. was a fact of the not yet reformed Comintern. It is regrettable in this connection that only the writ of indictment but not the opinion was submitted by the Prosecution.
Through the decree governing the penal judicial procedure in the Protectorate Bohemia and Moravia, dated 14 April 1939 (Petersen Exh. 56), the following was decreed for the execution of the penal judicial procedure :"The following penal regulations of the Reich Law from the Penal Code of the German Reich apply to crimes committed by persons who are not German nationals: