Here must be proved a fact evident in itself, namely that judges and prosecutors in the same position as Rothaug, were never and in no context expected to have objects alien to the field of criminal law in carrying out their official duties.
Records of sentences already submitted and others still to be submitted will prove that this had in no way been intended.
This touches on the legal question, whether official functions resting on the official Reich legislation which, up to this very moment, is covered in International Law by the principle of nationality and sovereignty, functions which were carried out in public, may be conceived as actions of persecution on racial, religious or political grounds and may be treated as being on the same level as actions which were carried out secretly and without control and which could be recognized as wrong already by their cruelty and severity by every person concerned as offending against justice and law.
Here I wish to convince the Court that offenses of the latter kind, if they ever did happen within the legal sphere could and should only be known to the immediate participants but not to persons who held positions like the defendant Rothaug.
In the concrete reflection on the relationship to the law of the position of judges and likewise prosecutors, it is of decisive importance to elucidate in public law that the German judge, under any regime, had merely to examine whether a law had been announced in accordance with rules and regulations whereas an examination from other points of view was outside his jurisdiction. In this context it is further necessary to elucidate the significance and import of the judge being subject to the law and the meaning of a sentence in the sense of German public law especially in relationship to the legislative and executive power in an authoritarian state, thus to the governing power.
Here we can not omit to clarify the basic legal principles and corresponding regulations which determine this relationship or to prove the practical application based on files.
Thus, the question of the judge's subjection to the law calls for a clarification of the consequences on his task resulting thereof. It necessitates the recognition of the law as a form of expression of Justice, as part of the legal system and as immediate emanation of the ruling state doctrine at any given time, as well as the recognition of the judge's actual position in this legal system. Therefore it is also necessary to show in a condensed form the general basis and principle of the legal doctrine which since 1933 was decisive for the German judge in establishing the intentions of the law in a concrete individual case. The accusations which have been made in general or in individual cases concerning Rothaug's method of handling proceedings or which have been connected with such proceedings become meaningless or lose in importance if their explanation is tackled in general from the angle of the correct basic procedure regulations or from the available records of individual proceedings. This leads, as a matter of course, to a basic discussion of the individual cases which have been particularly stressed by the Prosecution, and which lie in the direction of the Prosecution's main thrust.
No one knows better than the judge the human inadequacy and fallibility because by the very nature of his profession he deals with that aspect of life. Thus he would be the last to believe himself immune from human error, least of all at a time of intellectual revolution and under the effect of the very highest wartime pressure. Nevertheless, I beg the Tribunal not to think me presumptious if I try to prove that the sentences pronounced by the Special Court at Nuernberg were in keeping with the basic principles of jurisdiction of the Reich's Courts and that among thousands of cases only very rarely one has been successfully contested or otherwise amended.
In this connection, one could discuss the outward development of the judgment and all those legal questions allegedly discussed in individual cases or in general in Rothaug's circle during the course of six years.
The submitted records of individual proceedings provide plenty of opportunity to form an opinion on all individual questions thrown up by this trial especially on the aim of judicial activity, the sentence in its relationship to the requirements of the proceedings and its assailability in the interest of legal security, from which it will clearly emerge that the sentence, even that of the Special Court, was only an intermediate and by no means the final stage of the work of ascertaining justice either when finding the defendant guilty or when pronouncing the sentence. Thereby it may be possible too to clear up the linguistically unfortunate term of "psychological producing of evidence" which has found its way into this trial. Thus, the legal and psychological task of the presiding judge in accordance with German criminal law will have to be explained and it will have to be shown how Rothaug confronted his task, solved it in the practical legal procedure and which objection he had to face in connection with the results of his work by departments which in the course of their own duties had to examine, control and, if necessary, correct.
Furthermore, it will be my task to prove that in Rothaug's official working sphere without exception all defendants without consideration of nationality, folkdom or race, were granted the same legal guarantees as any German according to German criminal law, thus that no case was treated as an exception to the general rule; that this was also done in all proceedings against Poles, who apart from one outstanding case bearing special character, were the only foreigners against whom Rothaug proceeded.
This, generally and in particular, touches upon the problem which determines the judge's and the prosecutor's position to the legislation for Poles from an objective legal point of view, of which have to be discussed the actual and legal basis and aspects from and through which the German judge and prosecutor whether in the North, South, East or West, had to view matters under the spell of the German doctrine.
Here the greatest importance has to be attached to the kind of offence in question, the place of the crime and last, not least, the question whether these Poles had readily been deported and had not voluntarily, accepting certain conditions, placed themselves at the disposal of the German war power.
In this context, we can not omit to discuss the principles which the jurisdiction of the Final Court of Appeal has developed in connection with this whole complex. Here I must leave the justification of the legislation as such to others who are responsible for it.
To this belongs, from a psychological viewpoint, the discussion of Rothaug's actual basic attitude toward the Jewish problem in order to do away with all insinuations which have wilfully and on purpose been made during this trial by persons who seem to have cause to stress and demonstrate their innocence in this connection by calling "catch the thief".
Another complex fitted into the direction of the main thrust of the Prosecution is Rothaug's alleged political power position, inflated so as to appear almost like a myth, which, to begin with, is supported by an assertion which is the object of Count IV of the indictment. I shall prove that Rothaug's duties did not extend beyond the professional organization of the Lawyers' Association (Rechtswahrerbund) and that, beyond that, he held no political post, and that in particular he did not belong anywhere, at any time and in any function to the so-called Corps of Political Leaders.
In this I shall take special care to reduce the case Doebig which has been brought into this context for the purpose of substantiation, to the proportions it deserves in the knowledge of the true facts of the case, as we ourselves feel urged to clear Rothaug's real relationship to the Security Service (SD) as expressed in its principles, development, contents and Rothaug's inner attitude to it down to minute details.
Especially here as in all positions where the witnesses are interested in a certain presentation of conditions, we are fully conscious of the difficulties and we know how easy it is today to find witnesses who by incriminating statements are given the chance to clear themselves. On the other hand, bearing in mind the totality of present psychological conditions it is difficult to find a person who would be prepared to stand up for truth's sake if he were asked to do so for a person who by reason of biased evidence has been publicly defamed in such a manner that it has given rise to the fear of becoming involved in the greatest difficulties by confessing to a mere acquaintance with Rothaug.
Because Rothaug's political power position has extensively been brought in, in an attempt transparent to our eyes, to reduce the responsibility of others, he feels pressed to clarify his real relationship to his collaborators and the prosecutors within his sphere of work minutely and in its totality in its official and personal aspect irrespective of whether it concerns Rothaug's official or unofficial statements, his alleged relationship to Streicher, Holz and Zimmermann, his actual relationship to Haberkern, the "Blue Grape", the mysterious "Stammtisch", his rank of "Tenno", his attitude toward the judicial administration, his "recording section" in alleged spectacular proceedings or his representation of the devil on earth. In all these matters and questions we have but one aim: To restore the truth in all its glory, for only in truth can we see the way which honorably and serenely will lead us out of this endangered vital position.
DR. TIPP (Counsel for defendant Barnickel):
The indictment has charged the defendant Dr. Paul Barnickel with having met together with the other defendants between January 1933 and April 1945 to form a conspiracy in order deliberately and knowingly to commit war crimes and crimes against humanity, Legally, the indictment is based on the Control Council Law No. 10. It has already been pointed out that the Control Council Law No. 10 contains no provision threatening punishment in the case of a conspiracy for committing war crimes and crimes against humanity. The Ordinance No. 7 shows no additional new paragraphs in the Penal Code, as has already been stated by the prosecutor in his opening statement. Consequently, a legal basis for the indictment as regards this point does not exist.
However, in my plea for the defendant I shall as a matter of precaution bring evidence for the following statements:
In 1933 Dr. Barnickel was a judge in Munich. At that time none of his co-defendants were known to him. At the end of 1944 he became Reich Public Prosecutor at the Reich Supreme Court. Since then he has had no contact at all with any of his co-defendants.
During these two hears he got to know some of the gentlemen who are charged together with him, in view of his work for the Reich Public Prosecution at the People's Court. I shall prove by examining the defendant in his own case and by statements of the codefendants that the relations between Dr. Barnickel and those codefendants who were known to him were confined to official matters and were not in the least connected with the charges forming the basis of the indictment.
With regard to this point I shall, as a matter of precaution, furthermore prove that the dependent position of the defendant Dr. Barnickel, who was obliged only to act on orders, altogether excluded the possibility of a conspiracy.
II.
Before dealing with the charges of the indictment in detail, I must refer to the following: The prosecution has not explained in the written indictment nor in the otherwise very detailed opening statement, nor in the evidence, on what it really intends to base its general charges against Dr. Barnickel. As defense counsel I have consequently only assumptions to go on. In doing so, I believed that the prosecution had lodged an indictment against Dr. Barnickel in view of his position as Reich Public Prosecutor at the People's Court between 1 December 1938 and 1 December 1944 and the work he was doing at that time.
The prosecution seems furthermore to take the view that the People's Court was established in 1934 as a special court, that as special tribunal it violated the Weimar Constitution and that work ing for such a tribunal included participation in punishable acts.
Against this the evidence will prove that the People's Court, in any case after 1935, was an ordinary court in agreement with German law and German judicial system.
I shall furthermore produce evidence that the People's Court has at no time been a special court or, to put it clearly, a revolutionary tribunal. Attacks against the State in its inner and outer existence are considered a crime by every legal system.
These cases were judged by the Reich Supreme Court until the establishment of the People's Court. Even the prosecution will not want to maintain that the Senates of the Reich Supreme Court which passed judgment in cases of this type were Special Courts. These powers of the Reich Supreme Court were transferred to the People's Court after its establishment. I shall be able to prove by presentation of documents and the examination of witnesses that procedure regulations of the German penal code which had hitherto been in force were in the same way used as a basis for procedure in the People's Court.
Neither is the lack of a legal appeal against the verdict of the People's Court of special note. The lack of legal appeal does not result in making verdicts of the People's Court verdicts of a Special Court, as there is no legal appeal against the decisions of the Reich Supreme Court in matters of high treason and treason.
I will bring the following evidence concerning the position of the defendant Dr. Barnickel as Reich Public Prosecutor with the People's Court by examination of the defendant as witness in his own defense, by documents and the examination of witnesses. The title Reich Public Prosecutor was taken over from the Reich Supreme Court. The Reich Supreme Court received its name because until the administration of justice was transferred to the Reich in 1935 it was the only Court in Germany which was directly subordinate to the Reich. The title of Reich Public Prosecutor was purely formal in nature and did not mean that these officials had greater authority in representing the power of the State than other public prosecutors.
His position as Reich Public Prosecutor was not different from that of any other public prosecutor. He was not the head of an office, he was not the superior of these officials who had been chosen to assist him. The Chief Reich Public Prosecutor at the People's Court alone was the superior and senior official. He alone represented the authorities to the public, within the office he alone was authorized to give directions. The Reich Public Prosecutor was bound to his directives just as any other member of the Reich Public Prosecution.
B.
Special Part.
As already mentioned above the prosecution has made no concrete charges against the defendant Dr. Barnickel. His name is mentioned in only one court of the indictment, and that is where the prosecution points out his participation in the persecution of the defeatists. No concrete charges have been made on this count either. The prosecution has merely shown several documents which contain the name of the defendant Dr. Barnickel. As far as these documents are concerned I will show by questioning the defendant in this matter and by the statements of witnesses that his co-operation was limited to those duties which were placed upon him by the law, ordinances and orders from his superiors. Beyond the concrete charges which have just been mentioned the indictment states that Dr. Barnickel participated in the persecution and extermination of the opponents of National Socialism without regard to nationality, above all the prosecution and extermination of races, to which I will show the following:
I.
The type of training and the spiritual structure which Dr. Barnickel received in his youth would alone have made this attitude, with which the prosecution charges him, impossible. Dr. Barnickel's mother grew up in Paris and London. Through her he came into contact with the spiritual life of other peoples in his early youth.
Dr. Barnickel spent part of his student years in the University of Paris. Later he was often in France, England and other countries. He always found that contact with people of other nations and races was an important factor in the development of his life. In his later professional years he attended lectures at the Academy for International Law in the Hague. He was a contributing member of its student's community for a number of years.
This wordly attitude of Dr. Barnickel, which frew out of his training, made it impossible from the very beginning for Dr. Barnickel to accept the narrow minded racial doctrine, to represent it or to act upon it.
I shall be able to bring proof of this by means of affidavits of a number of witnesses and questioning of the defendant himself.
II.
I shall further prove by presentation of original documents the reasons for which Dr. Barnickel joined the NSDAP in the Spring of 1933. This happened, not for the sake of personal advantage, but because he considered it necessary from a more idealistic viewpoint. The evidence will show that Dr. Barnickel was not transferred to the People's Court because of his political activity, but rather for the sake of his professional abilities. He had already been suggested, on the basis of his abilities in the field of civil law, for a position with the Reich Supreme Court prior to the time when the NSDAP took charge of the State. Before the expiration of his activities as Chief Public Prosecutor in the District Court II in Munich he made an effort to find again a position as judge in civil administration of justice. However, these efforts failed and he was transferred to the People's Court as Reich Public Prosecutor in the 1938.
Furthermore the evidence will show that Dr. Barnickel tried to fill the position of a Reich Public Prosecutor at the People's Court according to his education and training as a professional jurist as far as was possible with the little remaining liberty which was left in Germany by the political development of the years between 1938-1944.
The evidence will show that Dr. Barnickel's attitude in those years was always directed towards the legal state. He tried successfully in numerous cases to mitigate the severity of the laws and jurisdiction by which he, too, was bound.
As the position of Reich Public Prosecutor and the duties in connection with it were a heavy burden for him, he tried to get a transfer from the People's Court in summer 1942. His transfer was rejected by the former President of the People's Court Dr. Thierack, who at that time had been appointed Reich Minister of Justice.
That the defendant Dr. Barnickel remained at his post despite his inner misgivings regarding the party and its ever increasing influence on the administration of Justice and jurisdiction is due to the fact that he believed that the position which would have become vacant if he were to have left would in all circumstances have been filled by a radical. He believed to be able and believed it to be his duty to prevent the worst by staying at his post.
I shall be able to present evidence by statements of witnesses with regard to this count which appears to be decisive to me.
III.
With regard to the question whether participation in procedure against the seditious undermining of defensive strength is a crime against humanity the following must first be pointed out: This procedure was laid down by the government of the state by means of decrees and regulations which were binding for every judge and to an increased degree for every Public Prosecutor.
The Reich Public Prosecution at the People's Court also adopted this procedure by Order of the State. Non-compliance with this order meant to sacrifice one's life. Should the Prosecution there fore maintain that participation in this procedure is a crime per se it would claim a martyr's attitude.
But martyrs are always individual personalities, the church sanctifies martyrs. However, a martyr's attitude can not he claimed, as a principle. The lack of it can not he taken as a basis for criminal accusation.
The evidence will prove that Dr. Barnickel's participation in this procedure was conditioned by the law which bound him and that he also helped many people, as far as he was able to do so. I will present a number of affidavits to that effect.
IV.
In 1944 the activity of Dr. Barnickel in the Reich Public Prosecution at the People's Court ended by his transfer to the Reich Supreme Court at Leipzig after an investigation lasting for months in the Reich Ministry of Justice. I shall prove this through submission of documents.
V.
It will be proved by the evidence to be presented by the defense in the case of Dr. Barnickel that Dr. Barnickel was transferred to the Reich Public Prosecution at the People's Court in his capacity as a professional jurist and not because of his political activities or his political merits.
Furthermore proof will be brought that in Dr. Barnickel's mind the idea of a legal state stood always above Hitler's State and that he always tried to oppose danger to the individual and to human development, even if he endangered his own interests thereby.
Dr. Barnickel, like every Civil Servant, every Official of Justice of the Hitler Reich in particular, was torn between recognition of the fact that justice in the Third Reich was no longer a servant of the law but of the state, and his sense of responsibility which kept him at his post to safeguard an even worse state of affairs. The attitude which he maintained as far as was possible should in my opinion be the guiding factor in his judgment by the Tribunal.
But the evidence will prove clearly that he himself was a servant of the idea of the law.
THE PRESIDENT: The Tribunal will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 24 June 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nuernberg, Germary, on 24 June 1947, 0930-1630, The Honorable James T. Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the court.
THE PRESIDENT: Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honor, the defendants are all present in the courtroom except the defendant Engert, who is sick in quarters.
THE PRESIDENT: The defendant Engert has been excused.
The Court will come to order.
May I suggest to counsel for both sides that it is desirable that they give to the Tribunal their recommendations concerning the medical and psychiatric examiners at the earliest convenient time so that we may have an early report on the condition of the defendant Engert. We suggested yesterday that prosecution and defense counsel confer upon that matter.
We are ready to hear the next statement.
DR. HAENSEL (Counsel for the defendant Joel): I ask to be permitted to begin reading my opening statement.
When the newly appointed Minister of Justice Thierack in the late summer of 1942 met Guenther Joel, at that time Ministerialrat, in the hall of the ministry in Berlin, he addressed him with the following words, "Besides all this traveling of yours do you also have an office?" He had been told that Guenther Joel was traveling a great deal. He knew that, because of all this traveling the Gauleiters had lodged bitter complaints against him with the Minister of Justice, with the Chief of Police Heydrich, and the then powerful/Reich Marshal, complaints to the effect that Joel had dared to proceed ruthlessly against members of the Party by judicial means.
Thierack was determined to remove from his ministry this inconvenient accuser whom the Party could not trust. He told Joel so before long and subsequently accomplished it by transferring him to Hamm where, as General Public Prosecutor, he had to follow the directions issued from Berlin without having a chance to make himself obnoxious by his criticism.
A traveling prosecutor in cases against Party big shots and other personalities under the protection of some prominent Party member, a man who supported and shielded the provincial judicial authorities when under pressure of local Party offices, a man who was apt to be rung up at any time by hard-pressed public prosecutors, and who often spent three or four nights a week in a sleeper - this was, according to the testimonies I am going to introduce, the Public Prosecutor Guenther Joel. I shall submit a few dozen, although I could bring in hundreds of them.
The typical German official of a ministerial department is a man who passes his law degrees with excellent grades, who has time for nothing but his legal documents, who wears thick glasses because he overstrained his eyes through much reading, and whose movements are limited to the read between his house and his office. Joel does not wear glasses. He passed his examinations well but without giving evidence of any particularly remarkable learning. Characteristic for him are his striking intelligence, his energy, his indefatigability, his courage, his frankness, and the passion with which he fought for justice for ten years.
Gentlemen of the Court, it is not difficult to stand up for Guenther Joel against a charge which does not apply to him, but it is difficult to stand by him as counsel for the defense and to have to watch every day how a man whose nature is all movement, ardent activity and energy, is sitting in his cell, not being able to do anything except to brood over the reason why he should be charged with being a conspirator against the law, he who was one of the most active champions of the law. "Why am I here?" he calls out to me again and again. And I understand his question only too well.
What must Joel think when the prosecution introduces as witnesses also against him the highest official of justice in Nuernberg and some judges, who explain their their weakness, their compliant attitude towards the Party which, moreover, meant violations of their duty, by saying that opposition would have been identical with suicide? Joel knows the conditions in Nuernberg; he appeared 1939 in person before Streicher informing him that he was going to start investigation proceedings against him, and he did so, as the Court was in a position to see from a document submitted by the Prosecution, and Gauleiter Streicher had to disappear.
Joel was not impressed, neither by Streicher, the Gauleiter of Franconia, nor by all the other Gauleiters whom he dauntlessly opposed when they wanted to infringe upon the independence of the administration of justice. "If I had done nothing against the injustices and the twistings of the law carried out by the Party, if I had kept quiet, I should not have been put to trial, because in that case," he continues, "my name would not have appeared in any documents," And I think Joel is right in this matter, too. Whenever the administration of justice was endangered, Joel was put on the job; it was like that under Minister Guertner, and remained that way under Undersecretary Schlegelberger. Not because Joel was more efficient than the other approximately 200 officials of the Reich Ministry of Justice, did they make use of him - I shall explain subsequently why he wars called upon by his minister but because he took action at all, he is now sitting before you; because the majority of his colleagues and superiors do not appear in any activities outside the Reich Ministry of Justice, they are not to be found among the defendants. In view of these facts, is not his question understandable?
Joel never had anything to do with legislative work; he was never a judge. As a Public Prosecutor and as a Ministerialrat he never had the power of decision in the Reich Ministry of Justice, and therefore it is correct when he says in answer to the charges of the prosecution:
"I am being made responsible for laws which I did not create, for verdicts which I did not pronounce, and for decisions of the Reich Ministry of Justice which I did not make."
The prosecution in its opening speech of 5 March 1947 stated that part of the evidence produced referred to events which took place before the outbreak of the war in 1939. It stated that it wanted to demonstrate thereby that the defendants were accomplices to a conspiracy for the purpose of committing crimes which had been carried out after the outbreak of the war. We read there: "But not one of these acts has been made the object of the indictment as an independent crime."
Will you permit me to indicate here in a few words what I shall subsequently expound in proper detail against this legal argument?
Conspiracy, the common planning for the perpetration of criminal acts, is, as "independent crime" (in the wording of the indictment), that is, a crime independent of single criminal acts, unknown to continental penal law. The prosecution bases its opinion on Control Council Law No. 10 and draws from it the conclusion that such a conspiracy aiming at the perpetration of war crimes and crimes against humanity be punishable.
This law, however, does not provide a legal basis for this indictment. If it could be inferred from Law No. 10 that such a conspiracy is punishable, we would find ourselves in the position of having to act according to a law which denies the principle "nullum crimen sine lege". This principle, however, has been solemnly confirmed by Law No. 1 of the Military Government in its article IV, No. 7. According to it, and I quote, "indictments can be filed only if a law, valid at the time of the act, explicitly declares that act to be punishable".
But Law No. 10 does not declare conspiracy with regard to war crimes and crimes against humanity to be punishable. Its article II establishes four types of criminal acts: Crimes against the Peace (a), War Crimes (b), Crimes against Humanity (c), and Membership of a Criminal Organization(d). Only in the case of Crimes against the Peace (a) the law defines as an independent criminal act, in addition to the initiation of aggressive wars, also the - and I quote - "participation in a common plan or conspiracy for the perpetration of the above-mentioned crimes". This crime against the peace (a), however, is only conceivable under violation of international law and international agreements; the problem whether Germans can be punished for it can only be judged according to the standards of international law.
It lies outside the sphere of this trial, since no charge has been made here because of the planning of an aggressive war. This trial finds its basis in Control Council Law No. 10 (record page 84) and has only to decide on the accusation of having perpetrated crimes according to section b, c and d of article II, 1. An explicit definition of a conspiracy is, however, not given in sections b through d of article II, 1. ns far as war crimes and crimes against humanity are concerned, a conspiracy is punishable neither according to Law No. 10 nor to continental penal legislation nor according to German Penal Law as far as it bad been developed up to the time of the Control Council legislation.
One could stumble over the regulation in article II, 1, as defined in section 1, c, where it says that crimes against humanity are to be prosecuted regardless of the fact whether they violate the national law of the country in which they have been committed. But this regulation, if a violation of the fundamental principle "Nullum crimen sine lege" confirmed by Law No. 1 is to be avoided, can only be interpreted in such a way that such a national, let us say more explicitly nationalistic, or even National Socialistic law cannot be considered, which itself, it is true, is a formal law but not law. The meaning of the regulation is therefore; The violation of a legal right which has been so generally accepted that without its recognition civilization or a community life of civilized people is inconceivable, cannot be declared free of penalty on account of the fact that a legal machinery which stands in opposition to the whole of civilized humanity and which meanwhile has been repudiated by its own people, had temporarily declared it not subject to punishment. All the crimes against humanity which the law mentions in section c of article II, 1, such as : murder extermination, enslavement, deportation, enslavement, torture, rape, -- violate the law valid up to now in all civilized countries and the German law as well, Law No. 10, as the law valid inside Germany, did not define completely now crimes but only summed up the already existing crimes under the labels of "War Crimes and Crimes against Humanity."
By including those legal rights which previously were taken frail the individual sphere such as life, physical inegrity and freedom of the individual, more comprehensive legal rights referring to the whole of humanity were put under legal protection, and the criminal intent was persued beyond its nearest individual aim, i.e. the individual human being, to its more distant aim, such as the extermination of whole groups for instance. The range of view was hereby raised and enlarged, the comprehension of the dangerousness and the depravity of criminal intent was deepened, but nothing was included into the orbit of punishable acts that had not been there before.
Conspiracy as an independent war crime and crime against humanity, regardless whether the perpetrator was personally guilty or an accessory to the crime, does not fall within this orbit of punishable acts in a Germany now occupied and therefore subject to the military jurisdiction but not to the substantive penal law of the respective occupying power.
The I.M.T. in its verdict has stated not only in order to lay down a precedent but also in order to establish the fact; It is one of the most essential legal principles that every criminal guilt is a personal one. Mass punishments without personal guilt of the individual do not exist (section 9 of the verdict). The prosecution expressly quoted the above-mentioned regulation from the Control Council Law No. 1 in the meeting of 17 April, Page 2268 of the German protocol. The prosecution has also quoted from the Hague Pact of 1907 which was published for Germany in the Reichsgesetzblatt (Reich Law Gazette). In article 43 of this pact is stated that the occupation power into whose hands the legal authority has fallen must re-establish and maintain public life under observation of the nation's laws, insofar as no cogent hinderance to this exists.