The shocking circumstances accompanying the executions were due to the increasing gravity of the war situation and to the air raids. Dr. ROTHERBERGER did not yield to Dr. THIERACK's **mand for expecially speeding up the decisions on clemency pleas, in order not to precipitate his decisions and to be able to make them after having heard all the persons concerned. It has been established that he was commissioned only with decisions on the clemency pleas themselves, but not with the carrying out of the sentences. As far as the Prosecution, in mentioning the unlawful execution of hundreds of non-Germans, refers to the fact that, at any rate, German statutes relative to high treason and treason were applied according to regular procedure to foreigners, and that the latter were executed on the strength of imposed death sentences, the Defense points to its amplifications made in the CHERVAT case. As far as these person are said to have been non-Germans whose offences were committed on German territory - which has not been established for want of any documentary proof - reference may be made, as to the admissibility of their conviction on the basis of the German penal law, to Article 4 of the German Penal Code and to the former amplifications made hereto.
X. Count 14 and Count 26 Exhibit 286, Exhibit 288, statement of Buchhelz, Parson, Page 3680 ff in addition thereto Rothenberger's deposition, Page 5321-5326 and the deposition of the witness Dr. Hartmann, Page 8634-8635 and Rothenberger Exhibit #32 (Volume IV, Page 44-46), affidavit of Carl Dernedde and the deposition of the witness Altmeier, dated 15 July 1947, English Translation on Page 5283 - 5287 and about the fact that no "Nacht-and Nobel" prisoners were in jail in Floetzensee in September 1943, see deposition of von Ammon, Page 6220 XI.
Case 12/24 of the Prosecution.
This count of the Prosecution deals mainly with the illegal introduction of German law and legal procedure in the occupied countries.
Dr. Rothenberger had nothing to do whatsoever with the introduction of German law, nor was he, according to the indictment, made responsible for this Count by the Prosecution. Further discussion is therefore unnecessary. I refer to the verdict in the Doctor's case, in which it had expressly been determined that condemnation is impossible in such a case. It was reasoned, according to the sentence quoted, that the defendant had not been in a position to build up his defense accordingly.
XII. Case 13/25 of the Prosecution.
"Nacht-und Nobel" - decrees.
Dr. Rothenberger likewise took no part in the "Nacht-und Nobel" proceedings. The Prosecuticn even admitted that he cannot be regarded as an offender in this case. The Prosecution Exhibits, number 324 and 312, have been submitted against Dr. Rothenberger, which refer to the "Nacht-und Nobel" proceedings and which had been forwarded to Dr. Rothenberger for his information, with regard to these documents Dr. Rothenberger declared that he had knowledge of only one. It is an established fact that the "Nacht-und Nobel" proceedings, as they pertained to the Department for Penal Matters IV, had from the beginning been removed by Thierack from Dr. Rothenberger's jurisdiction. This way Dr. Rothenberger was not authorized to exercise any supervisory functions, nor was he able to do so, due to lack of information concerning the proceedings. The Prosecution did not in any way demonstrate that Dr. Rothenberger was currently or for longer intervals occupied with the handling of "Nacht-und Nobel" affairs. There is furthermore no proof for the entirely arbitrary statement on the part of the Prosecution, that "Nacht-und Nobel" Cases were among the so-called "Ploetzensee- Cases" )clemency decisions, dated September 1943). von Ammon's witness-depositions even demonstrate the contrary (Records, Page 6220), where, literally in reply to the question whether there had also been "Nacht- und Nobel" prisoners among those executed in Ploetzensee in 1943, he says: "No, I can answer both questions in the negative.
At the time in question, there were no "Nacht-und Nobel" prisoners condemned to death housed in Ploetzensee".
A connection of Dr. Rothenbergen with the "Nacht-und Nobel" cases is therefore entirely out of question also in this respect. Besides, contention of the Prosecution is erroneous when they ask Dr. Rothenberger to prove that there were no "Nacht- und Nobel" Cases among the executions in Ploetzensee.
It is of course up to the Public Prosecutor only, to establish evidence and bring proof for his contrary allegations. In addition, it is this point of accusation of the Prosecution which raises the fundament objection that a conviction cannot result if alone for the reason that Dr. Rothenberger has not been listed as a responsible defendant under Count 13/25 of the indictment. (see verdict Doctor's Case, defendant ROSE.
I now interpolate. I would like to refer to the verdict in the Medical Case with reference to Dr. Rose's case where the principle was stated expressly.
I now pass on to the next point. That is point 13, "Euthanasia, etc."
XII. Count 13 and Count 25
1) Exhibit 312 in addition thereto:
Rothenberger's deposition, Page 5320
2) Exhibit 324 in addition thereto:
Rothenberger's deposition, Page 532 (not acknowledged, not initialled)
3) Exhibit 286, Ploetzensee Execution List and with regard to the fact that no "Nacht- und Nobel" prisoners were jailed in Ploetzensee in September 1943.
Deposition of the witness von Ammon, Page 6220 Exhibit 286, 288, deposition of Peter Buchholz, Parson, Page 3680 ff.
and in addition thereto: Rothenberger's deposition, Page 5321-5326 and deposition of the witness Dr. Hartmann, Page 8634, 8635 and Rothen berger Exhibit 32 (Volume IV, Page 44 - 46) XIII Count 15/27 of the Prosecution Euthanasia, etc.
Dr. Rothenberger has likewise nothing to do with this Count, and has not been charged with any responsibility in this respect. In reference to the Euthanasia question it must be pointed out that Dr. Rothenberger, on the contrary, was a strong opponent of these methods. This is clearly demonstrated by documents found, which have been published after the war in the periodical "Die Wendlung". (Rothenberger Exhibit 85) I introduced that as Rothenberger Exhibit 85.
I now pass on to figure XIV. That is the very important question of evaluating the result of the rebuttal in connection with the examination of the defendant DR. Rothenberger:
An examination is to be made in the subsequent statements to what extent the basis of Dr. Rothenberger's explanations has been shaken by the result of the rebuttal. The person of Dr. Rothenberger will also have to be discussed in this connection. It has been confirmed by the evidence (testimony of Becher) that he did not join the party until 1933 and that his acceptance into the party was later pre-dated. This witness further confirmed, that Dr. Rothenberger did not become the legal advisor to Reich Governor Kaufmann until 1936/37. As Judicial Senator (Justizsenator), Dr. Rothenberger naturally occupied a difficult position as would be common in the transitional periods of any revolution. His immediate and sole superior, Kaufmann, as well was at first anything but friendly to the judiciary, as Dr. Rothenberger has clearly stated in the Document, Exhibit 76. On the witness stand Dr. Rothenberger himself remarked how he at first had difficult experiences. It cannot be denied that at that time abuses occurred in the police prisons--concentration camps were established only at a later date--against which the judiciary was at first powerless (see testi mony of the witness Buhl). Thus Dr. Rothenberger in July of 1933 had to accept the decision of the Reich Governor, who as the trustee of the highest government authority in Hamburg had the right to quash proceedings, in the case of Elkan (Exh.
598). It is clear that this decision can only be considered as a political one in a revolutionary period. The second case, Dusenchoen, which Dr. Reuter mentioned in Exh. 599, could not be recalled by Dr. Rothenberger without documentation. Dr. Rothenberger only learned subsequently of the case, Buhk, through a report of his Referent from which no suspicion of murder was to be inferred in any way. The aforementioned letter of Dr. Reuter (Exh. 599) can have no value as evidence in any way. First of all, it is a report drawn up after the end of the war regarding events which occurred ten to 12 years age. Dr. Reuter, who himself was a member of the anti-Semitic, people's movement--as is shown by his report--thereby attempted to obtain for himself a professional job in Hamburg and the possibility of moving there. The file notation of the deputy president of the Court of Appeals at that time indicates the entire questionable character of the statement of Dr. Reuter which overflows with resentment and self-glorification. According to his report to the deputy president of the Court of Appeals, Dr. Reuter was acquainted with the so-called agreement between the four persons (Vierervereinbarung) only through Judge Vincensen who was interrogated as a witness. Wentzenzen on the other hand allegedly heard of this from a Commissar of the Gestapo on the occasion of the case Buhk. It is significant that Vincensen stated conclusively in his testimony (Page 8765 of the German transcript) that he did net discuss further with Dr. Reuter why the files came into Wentzenzen's hands by mistake. The witness said nothing of any agreement between persons (Vierervereinbarung) which was allegedly the reason for this.
Dr. Rothenberger knew of abuses during interrogations in the Police Headquarters and in the Police Prison at Fuhlsbuettel shortly after the assumption of power. The questioning by the public prose cution during cross-examination however followed another line.
Attention must be called to the fact that the prosecution inquired twice at that time as to abuses during 1941/42 and even in 1931/32, which Dr. Rothenberger could not recollect, try as he might.
It should be self-evident that Dr. Rothenberger would not be in a position to recall certain names after twelve or thirteen years and longer. The director of the Gestapo in Hamburg at that time was never a "friend" of Dr. Rothenberger; every proof is lacking to substantiate the assertion of the prosecution. Dr. Rothenberger merely knew him in an official capacity and nothing more. We do net deem it necessary to go into the evaluation of evidence again of individual cases. It should only be remarked in general that it presents a completely false picture, if individual incidents of this transitional revolutionary period be regarded as symtomatic of the further development in Hamburg. Dr. Rothenberger actually succeeded in creating a completely satisfactory relationship between the party and the judiciary in Hamburg. This was only made possible by his conscious desire that legally trained jurists join the party and its affiliations so that in this way the sane elements in the party could be strengthened (see testimony of Priess). The assumption of the functions of the Gau leader of the National Socialist Jurists' League (NSRB) in 1935, and those of the Gau director of the legal department in 1936/37, came about for this same reason. His proposal to have reports made the SD (Security Service) by jurists - rather than informers antagonistic towards the judiciary - was based on the same idea (see testimony Timmermann in NG-825, page 8817 German transcript, Exhibit 433, and affidavit of Dr. Harmsen R'Exh. 87). It can be adduced quite clearly and unequivocally from this last-named affidavit what reason motivated Dr. Rothenberger to have his own jurists function as confidents for the SD, namely for no other reason than to prevent the SS from gaining an insight into the judiciary in Hamburg through its (the SS) own confidants.
If one considers the overall situation in the Hamburg judiciary, then one must bear in mind that between 1935 and 1942 some 30,000 criminal cases yearly, that is approximately 200,000 cases en toto, were pending.
If there were any cases t this time (Janssen, Karutz, Vathje, etc.) against which objections are being raised today by the prosecution, then under no circumstances can it be considered proof that Dr. Rothenberger lowered the standards of the judiciary. The facts prove the contrary. The measures by which Dr. Rothenberger brought about a gradual limitation of the political influence of the party upon the administration of justice in Hamburg are as follows:
In 1936 or 1937 the order of the Gauleiter that no political leader be permitted to interfere directly with the administration of justice (testimony Becher, page 8596 of the transcript). Similar measures are evident from the prosecution documents Exhibit 588, Exh. 594, and from the situation report of the defendant dated 12 March 1942. Rothenberger Exhibit 26, Attention should also be called in this connection to the testimony of the defendant Dr. Joel, according to which there was no necessity at all for him to intercede against abuses which occurred in Hamburg.
THE PRESIDENT: Dr. Wandschneider, instead of running over into the noon hour at this time it may prove more convenient for defense counsel with reference to their luncheon if we adjourn now at the usual time and convene 15 minutes earlier at one-fifteen and I think that will suit your convenience better. We will now recess until one-fifteen:
DR. DOETZER: I beg your Pardon, Your Honor, but I had to come back to the microphone. Dr. Doetzer for Dr. Aschenhauer and his client, Dr. Petersen: Your Honor, the defendant Peterson for the past three days has been suffering from an inflammation cf the lymph, a very serious one and the doctor has advised him to stay away from the afternoon session and we would like to have him excused.
THE PRESIDENT: We have heard of the request and his request is granted at his own request. He may be excused from the afternoon session.
DR. DOETZER: Thank you very much.
(The Tribunal adjourned until 1315 hours)
AFTERNOON SESSION
THE MARSHALL: The Tribunal is again in session.
DR. WANDSCHNEIDER: I continue with my final plea pertaining to the defendat, Dr. Rothenberger. We were under Item XIV, of my plea on page 62 of the final plea. I commence with the sentence beginning with the words: "In order to protect the judges, Dr. Rothenberger assumed the burden of all the complaints by the above-mentioned, measures. Naturally, in certain cases complaints were also justified. When he had discussions with judges, this condition was naturally somewhat unpleasant and far from ideal. However, in such cases Dr. Rothenberger attempted to obviate any feeling of intimidation through the nature of his trial, as was substantiated by Dr. Oehlkers. Incidentally, in the cases of Karutz and. Vathje he expressly approved the conduct of Judge Oehlkers. Even though such conferences were not desirable, under the circumstances under which the judiciary existed in the National Socialist State, they were still preferable to a condition which exposed the judges without protection to the attacks of party offices antagonistic to the judiciary.
Dr. Rothenberger is charged by the Prosecution of being possessed with a ruthless and unprincipled ambition. The Prosecution does not deny his great ability. The Prosecution very wisely cannot contest the fact that no objection can be raised against a strong ambition if this also embodies equally great positive qualities, which are manifested with the help of this ambition. However, is the statement of the Prosecution correct that he unscrupulously sacrificed all other considerations to his ambition? No! Is it not true that he as one of the few leading jurists in Germany had the courage to protest publicly against the Gestapo methods! Did he not in numerous cases protect judges and officials subordinate to him against attacks of the SS and the SD! Is it not true that he tried untiringly to bring about more moderate views in the judiciary!
Did he not very often in his personnel policy successfully retain and protect intelligent and serious individuals who were disliked by the party or the SS! Was he not in reality a tolerant man - perhaps contrary to his own better judgment - who retained Jewish judges in their offices as long as possible, and took care of the further payment of their pensions and even had them transfer abroad!Is it not a fact that for many years the mild administration of justice in Hamburg induced the Reich Ministry of Justice to raise objections! Has it not been established on the basis of the present leading anti-Fascist of Hamburg, that this city represented an exception during the period of National-Socialism which differed in every respect from the conditions in the rest of Germany! (See affidavits Ruschenweyn, Kiesselbach).Again, was not Dr. Rothenberger one of the very few leading jurists in Germany we attempted to raise their voices against the murder of the mentally deranged! Towards the very close of this trial, did not a witness in his affidavit describe graphically how in 1943 Dr. Rothenberger contrary to the instructions of an SAFuehrer lent his efforts without surcease, along with those of the witness, to saving the household goods from the burning home of a Jew!Is that the picture of a man whom the Prosecution would characterize as an unprincipled man who refused to listed to reason, who followed his limitless ambition! It is obvious that the Prosecution has simplified the matter and has grossly distorted the picture of Dr. Rothenberger's character.
The Prosecution is correct in one respect when it states that Dr. Rothenberger made no great impression while on the witness stand. Whet caused that?
Dr. Rothenberger is a person possessed of such great inner conflicts, which however are usually suppressed, with the result that a judgment of his character is made extremely difficult for an outsider. On the one hand he is a dynamic man, on the other hand he is a man of changing moods, as has been testified to by the physician Dr. Stender and his friend Dr. Wiegelmesser.
On the one hand a strong personal desire to manifest his influence and ambition which on the other hand is contrasted by an equally great positive quality. Undoubtedly he is a man cognizant of his purpose, possessing an unusual intellect through which unjustly he runs the danger of being considered especially responsible. On the other hand he is completely devoid of vitality so that there is a cleavage in his character as a whole which he has not overcome even up to this present time. Opposed to the clarity and ambition in his very own judicial field stands the uncertainty in fundamental questions of politics and philosophy which extend beyond his professional spheres. This explains his credulity in which he acquiesces in a political leadership that almost overwhelms him with its unconditional demand for political power. To correct this picture, it must be interpolated at this point that the rational and reasonable trait of his character does not blind him. He sees improprieties, he has a sense for injustice and he attempts again and again in spite of many disappointments to fight then. He attempts to supplement that which he lacks in vitality by drawing energetic persons of character into his sphere. He constantly demands practical experience as the most important factor for the education of the rising generation of jurists as well as for the body of judges, even though he himself is undoubtedly not a man of practical experience who is in constant touch with life, but is rather clearly inclined to academic life, to doctrinarianism.
This it is significant for his case that he entertains the highest regard for the Anglo-Saxon law and the judiciary, but on the other hand represents as a type of a judge and jurist more that of the systematic person and theoretical jurist.
This conflicting nature of his character is projected naturally into his actions and life and reappear there. In his case this is not simply a question of a dual personality in the sense as found in Faust's "Two spirits dwell, alas, within my breast.
...", nor of the polarity of the human character in general. The condition of tension within him is unsnarled, a result of the over emphasis of the intellectual factor contiguous with an exceptional energy, which however finds its basis in an insufficient amount of vitality. Thus, his entire personality easily assumes a high-strung nature on the one hand, however on the other hand exercises a quality of inflexible self-control owing to the extraordinary exertion of energy end willpower. which explains the unusual tension under which he lives and suffers. The alleged contradictions in his testimony have nothing to do with "untruthfulness", but are only subconscious outward signs of his dual personality. Only a part of the contradictions which appeared during the course of the trial can be explained from the normal contrast between principles and conscious acts, which is unavoidable in every public or political activity.
Despite the accuracy of the above characterization one thing should not be overlooked. If his political lack of instinct, which follows from the above, (see affidavits Prof. Fieseher and Dr. Wiegelmesser, Rothenberger Exh. 9 and 10) led Dr. Rothenberberger into grave dangers of which he was aware, then the call to reason and conscience never died within him. Tragic conflicts were unavoidable because a tyrannical, political world of thought wanted to possess him, and did so to some extent, but against which he rebelled time and again. This rebellious attitude, which arose from purely fundamental and positive motives, was the deeper reason for his release from the department as Under-Secretary. The unceasing difficulties which he encountered on the part of Thierack, the SS, etc, were only the outward signs for this. I would only like to call attention to the delay caused by Thierack attendant to the publication of his book which was defended on the grounds that an examination of the contents by the Party Chancellery and the SD was necessary; and to the attempt of Dr. Thierack in January of 1943 to railroad Dr. Rothenberger to the Reich Court; and to the proposal that he be appointed Second Under Secretary to the Director of the Reich Chancellery Dr. Lammers, and finally to the refusal, to effect his discharge in April of 1943 mentioned by Dr. Rothenberger not to mention the investigation proceedings begun against Dr. Rothenberger for alleged illegal acquisition of furniture.
As to the facts behind Dr. Rothenberger's discharge, the memorandum of the witness Dr. Segelken (Rothenberger Exh. 77) written in January of 1944, presents a graphic picture. There can be no doubt that Dr. Thierack and Martin Bormann considered Dr. Rothenberger unfit for further duties in the judiciary for essential reasons. In spite of his efforts to maintain his belief in an idealized form of National-Socialism which last but not least arose out of the realization of the abuses of which he became aware through actual experience, Dr. Rothenberger was never a real advocate of the party. Dr. Thierack and the Party Chancellery, not to mention Himmler, considered him to be so little a worthy National-Socialist and advocate of the party, that they discharged him in an insulting manner without offering him another position, a pension, or the like.
It must be mentioned in connection with the above statements, that Dr. Rothenberger's testimony during cross-examination was not shaken, and that his statements with regard to his intentions and plans in the judiciary of Hamburg and finally Germany were salient and fundamentally correct.
XV. Legal arguments.
After the foregoing dealt with the characteristics of the facts of the individual cases and with Dr. Rothenberger's personality, there now follow some general legal arguments. The forms of participation mentioned in Article II, Paragraph 2 of Control Council Law No. 10 comprise in a comprehensive and most general way all imaginable rela tions of a perpetrator to the criminal act.
Obviously they were not established with a view to a differenciation and gradation according to different degrees of intensity of a criminal participation, and they contain side by side objective and subjective elements. Out of the extraordinarily vast extent of the forms of participation the Nurnberg Military Tribunals' administration of justice has already developed guiding principles for the establishment of responsibility. Following in the essential parts the judgment in the Milch-case, they can be formulated as follows:
1) What charges exist objectively, which facts of the case are given?
2) Did the defendant personally participate in the facts on which the indictment is based?
3) If he did not participate in person, were the actions on which the indictment is based carried out at his orders or under his supervision?
4) If this was the case:
a) Did he know of the actions indicted as crimes?
b) Did he have the power and the opportunity to prevent these actions?
c) If he had the power and the opportunity, did he fail to intervene and did he in such way become a particeps criminis and an accomplice?
First of all let us examine the incriminating facets of the case as such, as given by the Control Council Law No. 10.
It is expedient to start from the conception of "Crimes against Humanity" as specified in article II/c since with the exception of some peculiarities which arise from the character of violation of the laws and usages of war, it is in its construction identical with the conception of the war crime. Accordingly the actions of the defendants have been indicted in this trial under the aspect of war crimes as well as of crimes against humanity. In the enumeration, in the form of examples, of the individual crimes against humaniry we find different types of facts of criminal cases:
individual crimes such as mender, deprivation of freedom which have been standardized in the penal codes of all civilized nations, and mass crimes such as extinction, enslaving, deportation and finally persecution for political, racial or religions reasons. It is obvious that, independent of the classification in regard to criminal law which the law of the individual states had passed upon them already, all abovementioned types of violation are supposed to receive a special new meaning through the wording of the Control Council Law. This is inherent in the guiding conception "Crimes against Humanity". Murder and deprivation of freedom - here the motives of the perpetrator are decisive - are not necessarily bound to violate humanity, human behavior, a conception of which the German translation as "Menschlichkeit" is not entirely correct. The attack on the dignity of man is intended to be subjected to punishment. This is even clearer in the case of mass crimes where the lack of selection and the enormous numbers in which they are committed, alone reveal that the dignity of man is trampled upon. In the third group finally, in the case of persecution for political, ****** or religious reasons it is exactly the human personality and its dignity, to be respected in its substance, which constitutes the specific value to be protected. Therefore, the "Crime against Humanity" must be regarded as a newly created, independent violation in itself. This does not exclude that the moral conceptions on the basis of which it was standardized have for a long time already been common property of the civilized nations. The nature of the human personality is violated by the political power. Therefore one can, as a German jurist recently put it. (compare Guede in "German Periodical for Law - "Deutsche Rechtszeitschrift" - 2nd annual set, No. 4, page 111 ff.) characterize the essence of the crime against humanity as "misuse of political power". The fact that this value of human dignity is, first of all, an ethical and even the highest ethical value, is obvious.
The question is whether, and to which extent, its Court No. III, Case No. 3.transformation into a legal value is possible at this time.
The fact that Control Council Law No. 10 established the crime against humanity as a criminal fact does not free us from the necessity of answering this question. Thus we arrive at the problem of proving the concep tion of "Crime against Humanity" to a standard in criminal law. This investigation is the more necessary since fee issue in question is a fundamental conception of the new international respectively interAllied criminal law. In order to outline the problem more clearly, a practical example should be cited first. Recently PEIKOFF, a formerly leading politician in Bulgaria which has close ideological ties with Russia, a signatory power to Control Council Law No. 10, was sentenced to death. According to Anglo Saxon opinion PETKOFF was a political persecutee in the sense of Control Council Law No. 10 and, therefore, his death sentence constituted a "Crime against Humanity". According to Bulgarian opinion his death sentence was the legal result of legal and legitimate proceedings against a criminal and traitor. This example and many similar cases show the impossibility of arriving, even among the signatory powers alone, at a uniform definition of whether or not someone is to be regarded as a "political persecutee". On the one hand the signatory powers have established the crime of "political persecution", on the other hand they are incapable of a uniform interpretation. Therefore this cannot be a question of a legal standard, or any standard at all since this standard is a contradiction in itself and therefore cancels itself. Therefore it cannot be "valid" either, whether in the sense of a standard or in that of facts. Should one object to the effect that a standard according to which no human beings natural rights may be violated arbitrarily, was absolutely necessary under all circumstances, then this is true but only as far as the ethical capacity of such standard is concerned as such, as a moral demand addressed to the individual man, it remains valid. However, it cannot be a legal standard. Legal standards, especially those of criminal law, are rules of a community, that is of a legal community, in this case that of the Court No. III, Case No. 3.legislating signatore powers, which justify the individuals obligations toward other individuals and toward the community.
However, to this obligation on the part of the individual corresponds the obligation on the part of the legal community to ensure, in the interest of the legal security of the people subject to its order, a uniform interpretation, free of contradictions, of the legal standards it created. If this is not possible, a legal standard cannot exist either. The objection that the validity of a legal standard does not depend upon being actually conformed with by all everywhere within the jurisdiction of a legal community, amounts to a wrong inference. It is correct that if a legal standard, free of contradiction in itself and clearly defined by the legislator, exists within a territory under one law, its validity does not depend upon being conformed with in all cases and by all. Here, however, the very problem is that this supposition does not exist. In the present case a uniform interpretation of the conception of political persecution cannot be deducted from a super-legal development of law taken from the community of all civilized nations. Here it is clearly a case of decreed law, the meaning of which can be and must be defined by the legislator.
The above arguments show that principle which are still the object of disagreement, and of considerable conflicts between political powers, are by their nature not suited to serve as legal standards.
They lack sufficient clearness and stability to guarantee that they can be applied as a practical legal criterion. Here the problematic character of the conception of the crime against humanity becomes evident and the fluctuating borderline between law and politics appears clearly. Now the question is whether the conception of "Crime against Humanity" therefore lacks any legal meaning. This conclusion cannot be drawn. It is true that the above arguments revealed that a concrete and, as far as its contents are concerned fixed political conviction cannot be taken as a starting point on determining the positive legal content of the "Crime against Humanity". In order to obtain the Court No. III, Case No. 3.general meaning of the conception one must, therefore, draw abstract conclusions.
That means, for example, that the English economy cannot be considered as exploitation and grave violation of the natural rights of the proletariat merely because it is developing on the basis of a liberal, capitalist system. A Bolshevik administration of justice, on the other hand, cannot be considered as an inhuman, system of justice on the grounds that collectivistic convictions would, of necessity, have to involve a violation of the individuals personality. Therefore the legal facts of the crime against humanity will have to be formulated approximately like this.
A crime against humanity is any attitude which in interfering with individual rights oversteps the limits set in a state in accordance with its own internationally recognized order and which, while doing so, violates human dignity in an arbitrary and malicious manner.
At this point at seems necessary to point out the importance of two legal conceptions which the German law in its stronger efforts in the direction of system has developed and saparated more clearly than Anglo-Saxon law. These are the conceptions of causality and of guilt.
A connection between perpetrator and crime is established by the purely causal connection between perpetrator and crime, and by the perpetrator's criminal mental attitude in regard to the act. Causality concerns the question as to which effect, and which consequences can, according to reasonable opinion, be traced back no a person's attitude. In connection with the problem of guilt, the question is put whether in regard to the crime the perpetrator can be considered guilty, in other words, whether the perpetrator was conscious, and felt guilty, of the crime; at this point again a practical example, which offers itself during the present trial, shall be the starting point.
If under National-Socialist rule in 1942, during the war, Czechs were sentenced to death for High Treason and treason and executed after they had not been pardoned then these sentences had first been de Court No. III, Case No. 3.manded by the prosecutor, been passed by the Court, and an act of clemency had been refused by the Ministry.
It would without doubt be unjustified to consider these actions as decisively causal in regard to the actual result of the execution because one thing is sure: that in contrast to the one cause in the persons of the prosecutor, judge, etc. the real and decisive cause which surpasses all others was the fact that without the least help from the above - mentioned persons Hitler had, years ago, occupied Czechoslovakia, as a consequence of which German law was introduced. In considering the prosecutor, etc. responsible for the consequences of these historical and fatal actions of Hitler, one overlooks the fact that causality has really ceased to exist and that the actual result of the sentences dutifully passed on the Czechs cannot be traced back to the attitude of the prosecutor as the cause. It is just as impossible to establish a guilt of the above mentioned persons - if, as is, the fulfillment of their professional duties cannot be called guilt - by making them in reality more or less criminally responsible for the historical decision of a dictator. In this connection, a differentiation between a higher and a lower official, for example between an attorney-general (Reichanwalt) and a prosecutor would not be able to establish a higher decree of responsibility of the former because in regard to Hitler's fatal foreign policies both of them were equally and completely unimportant.
In regard to causality as well as to guilt, in short, in regard to responsibility, there exists an incongruity between the accused perpetrators and the extent of the actual consequence. This incongruity also makes the fluctuating borderline between law and politics visible.
At the beginning of the legal arguments it was established that the conception of the crime against humanity, contained in the Control Council Law, is a new creation of the legislator.
Therefore there exists the retroactivity of Control Council Law No. 10. The question is whether this amounts to a violation of the sentence: "nullum crimen sine lege" and: A legalistic discussion Court No. III, Case No. 3.of this question leads to no other result than recognition of the fact that the criterion of German and of Anglo-Saxon opinion are completely different.