The lesson has been so plainly taught - from the violation of Belgium's neutrality in 1914 to the wanton execution of hostages in 1940. Such contemptuous flouting of the laws of nations always tends to rally nations of the world to put down the country that is setting the law at naught. This very attitude on the part of the defendants is one of the most important reasons why Germany has twice gone crashing to defeat. Thus it is no surprise to find that German generals have no respect for international law, but sometime it must dawn on them that other people do, and that this is a factor which they must take into account in their planning.
Dr. Laternser's charge, that the conviction of these defendants will mean that wars in the future will be directed by lawyers, is absurd. Of course, every important commander-in-chief has a judge advocate to advise him on legal matters - this has been so for a long time. What Dr. Laternser's argument really means is that a commander-in-chief shouldn't have to worry about law at all, which is just another aspect of the basic defense argument that there is no such thing as international law or the law of war. What he is in fact asking the Tribunal to do is to re-enact the "Barbarossa, Jurisdiction Order" which preceded the campaign in the Soviet Union and which exempted German soldiers from prosecution for crimes committed by them against the civilian populations of the East.
In conclusion, we must say a final word about the doctrine of "German racial superiority," and the part it has played in this case and in the arguments made last week. These arrogant and prideful racial myths are like mustard gas, which hangs in the hollows of the ground and may last for months through many changes of weather ready to burn the unwary intruder. So it is disheartening, but not entirely a surprise, that these loathsome doctrines put in an appearance again last week, in the arguments that what these defendants did was justified because of something they called "Balkan mentality" -- a phrase which can mean nothing more nor less than Balkan inferiority.
We have just said that the recrudescence of these racial doctrines is disheartening, and I fear we must apply a stronger word. Some few things are only too well known to everyone in this room. If we scan the map of Europe to locate the country that for 12 long years had the cruelest, most oppressive government in the world, we do not find it in the Balkans. If we study the origin and development of concentration camps and the numberless tortures and atrocities committed therein, we do not find that the founders or the managers of the concentration camps were persons with "Balkan mentality." If we wish to discover why there are some 6,000,000 fewer Jews in Europe than there were ten years ago, it is not in Belgrade or in Zagreb or in Athens that we will find the answer. These matters are beyond question and should not be pushed too far to the back of the mind. And with these things in mind, to hear the mass murders committed by these defendants justified on the grounds that the victims were cruel and inferior people, is worse than disheartening, it is sickening.
We do not believe that defense counsel have done their clients any service -- either before this Tribunal or at the bar of history in putting forward such an argument. German national self-respect will never be reconstituted on such a basis. That such views are urged upon these Tribunals -- which have been constituted to render judgment under law and in accordance with the dictates of humanity -- can only awaken suspicion and fear, and obstruct and delay the readmission of Germany into the society of nations and the brotherhood of man.
DR. SAUTER: Your Honors, may I have the floor, please? I would like to make a personal statement.
JUDGE CARTER: About what, Dr. Sauter?
DR. SAUTER: I want to make a personal declaration for the protection of our honor.
JUDGE CARTER: The arguments are closed. We can't engage in a forensic combat here about things that may take place in argument. The Court, I am sure, will pick out that which is material and disregard that which may be considered inflammatory.
It is the ruling of the Tribunal that the arguments are closed.
The Tribunal will be in recess until one-thirty.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION:
THE MARSHAL: The Tribunal is again in session.
DR. LATERNSER: May it please the Tribunal, in the name of all Defense Counsel I move that the reply of the Prosecution will be stricken from the record, to the extent to which it contains insults against Defense Counsel. I assume that Defense Counsel should receive protection against such unfounded insults which they reject most emphatically.
Furthermore, I should like to inform the Tribunal of the fact that Field Marshal List will make a final statement in the name of all the defendants.
JUDGE CARTER: (Presiding) In regard to the motion made, the Tribunal realizes that there are certain prerogatives on the part of the Defense and the Prosecution Counsel. Far be it from us to try to make the limits too close. However, in the consideration of these arguments the Tribunal will consider only the facts and the law and the reason and logic behind them. Insofar as inflammatory remarks and remarks that impugn the character of these defendants and Defense Counsel, or anyone else unjustly, the Tribunal does not approve and has no intention to give the impression that we approve of it. It is hardly possible for us to say that we should assume the prerogative of striking it from the record. We can merely say that portion of the argument is not approved by the Tribunal and it will be given the effect only that we have here indicated. It is not the purpose, I am sure, of the Prosecution or the Defense or the Tribunal or anyone else to unfairly impugn the character or honor of anybody.
I think with that statement I have expressed the views of the Tribunal unless one of the other members cares to make some other statements. With that the motion will be overruled.
We will hear Field Marshal List at this time.
I think it would be proper that you approach the microphone in the center of the room, Field Marshal, if you care to.
I might say also that if Field Marshal List is to be the only representative of the defendants who speaks that we will not hold him to any 1-minute period of time.
You may proceed.
DEFENDANT FIELD MARSHAL LIST:
Your Honors, may it please the Tribunal.
In my capacity as Field Marshal and as senior of the Generals active in the Southeast indicated before this Tribunal. I render the following declaration on behalf of these generals and on my own.
In the opening session on 8 July 1947, we answered your question as to whether we pleaded guilty with a definite "no". We repeat this "no" today after the termination of this trial which lasted for seven months. We are not guilty. We did not want this war, nor are we responsible for starting the fights in the Balkans and in their ensuing effects both were forced on us.
We acted in defense and for the protection of the soldiers entrusted to us, for the protection of the whole German fighting front. We did not serve the Party. We did our duty as soldiers for our Fatherland, for Germany, as we had done for decades.
And we were compelled to do our duty even during a battle which bore all the marks of a band warfare, in a combat which every soldier, and above all the German soldier, detests.
If harsh measures entrailed and were bound to entail, it is the guilt of those who caused and sponsored this fight. The fault rests with those who waged this battle from the very beginning cunningly and cruelly in the Balkan manner. We only had one aim, to pacify the country.
We never thought of terrorization, decimation, or even extermination. Such a plan has never existed. We absolutely refute any such unfounded allegation. In this gigantic struggle which affected and shook the whole World, during which the incidents on the Balkan Front formed but a small part, we did nothing except what we considered militarily expedient and justified.
We acted under the harshness of the conditions which can only be judged rightly on the spot and in consideration of the conditions prevailing then and there.
We therefore maintain:
We are not criminals; we refute any such accusation most emphatically, just as emphatically as we refute the insults raised by the Prosecution during this trial, insults against our Nation, against our profession, against us personally and against the soldiers entrusted to our care.
I am fully convinced that the American Army, as well as the American people, in whose name the charges have been made, do not approve of such procedure. Just further demands that we are credited the same bona fide faith as those commanders of the Allied Forces are, whose military measures caused the heaviest losses of innocent people, the greatest misery and irreparably destroyed, irreplaceable cultural monuments belonging to the whole of mankind.
To arrive at a just appreciation it is furthermore imperative, to take due consideration of the inherent circumstances, under which we were compelled to serve. We were pledged by our oath and duty of obedience. We were living under the coercion of a dictatorship which grew ever more and more demonic and chaotic, a dictatorship where nevertheless strong tendencies and counter-tendencies were predominant, wherein, however, the individual had but little freedom of action; a dictatorship unconceivable by any outsider, least so by a free citizen of a free democracy. These conditions, as a whole, cannot be grasped without an insight into the background of all that happened in these days. Against us stood more or less the same powers who have established today in the Balkans a regime of terror, and plan to do the same in Europe, powers who keep the World in tension, today opposed by the whole Western hemisphere. May a kind fate spare the Nation which now tholds trial on us to fight a battle as we were forced to fight.
Calmly we await the verdict of the Tribunal.
If sentences should be passed, we will bear them as soldiers for the former German Wehrmacht, as generals for our brave and gallant soldiers, as Germans for our nation.
JUDGE CARTER: Do I understand that this is the only defendant who cares to address the Tribunal? This being true this portion of the trial has come to an end.
The Tribunal will stand adjourned until the further call of the Tribunal. We ask that both the Prosecution and the Defense Counsel keep in touch with the Tribunal so that they will be available when the Tribunal is ready to meet and render its decision.
The Tribunal will recess until that time.
THE MARSHAL: Court will recess until further notice.
(Thereupon at 1345 p.m. a recess was taken until further call of the court.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 19 February, 1948, 0930-1630, Justice Wennerstrum, presiding.
THE MARSHAL: All persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, you will ascertain whether all defendants are present in the Courtroom.
THE MARSHAL: May it please Your Honors, all defendants are present in the Courtroom.
THE PRESIDENT: This Tribunal has convened at this time for the presentation of its opinion and judgment. The original will be filed in the office of the Secretary-General. If there is any variation from this original in the reading of this opinion or in the mimeographed copies the original shall constitute the official record of this Tribunal. Judge Carter will read the first portion of the Opinion.
BY JUDGE CARTER:
In this case, the United States of America prosecutes each of the defendants on one or more of four counts of an indictment charging that each and all of said defendants unlawfully, wilfully and knowingly committed war crimes and crimes against humanity as such crimes are defined in Article II of Control Council Law No. 10. They are charged with being principals in and accessories to the murder of thousands of persons from the civilian population of Greece, Yugoslavia, Norway and Albania between September 1939 and May 1945 by the use of troops of the German Armed Forces under the command of and acting pursuant to orders issued, distributed and executed by the defendants at bar. It is further charged that these defendants participated in a deliberate scheme of terrorism and intimidation wholly unwarranted and unjustified by military necessity by the murder, ill-treatment and deportation to slave labor of prisoners of war and members of the civilian populations in territories occupied by the German Armed Forces, by plundering and pillaging public and private property, and wantonly destroying cities, towns and villages for which there was no military necessity.
Upon these charges, each of the defendants except the defendant Boehme has been formally arraigned and a plea of not guilty accepted.
The Indictment alleges that the defendants committed the acts charged while occupying the positions hereafter shown during the periods of time indicated:
The defendant, Wilhelm List, was a General Feldmarschall (General of the Army) of the German Armed Forces, serving as Commander-in-Chief Twelfth Army from April 1941 to October 1941; Armed Forces Commander Southeast from June 1941 to October 1941; and as Commander-in-Chief Army Group A from July 1942 to September 1942.
The defendant, Maximilian von Weichs, was a General Feldmarschall (General of the Army) of the German Armed Forces, serving as Commanderin-Chief Second Army from April 1941 to July 1942; Commander-inArmy Group B from July 1942 to February 1943; and Commander-in-Chief Army Group F and Supreme Commander Southeast from August 1943 to March 1945.
The defendant, Lothar Rendulic was a Generaloberst (General) in the German Armed Forces, serving as Commander-in-Chief Second Panzer Army from August 1943 to June 1944; Commander-in-Chief Twentieth Mountain Army from July 1944 to January 1945; Armed Forces Commander North from December 1944 to January 1945; Commander-in-Chief Army Group North from January 1945 to March 1945; Commander-in-Chief Army Group Courland from March 1945 to April 1945; and Commander-in-Chief Army Group South from April 1945 to May 1945.
The defendant, Walter Kuntze, was a General der Pioniere (Lieutenant General, Engineers) in the German Armed Forces, serving as Acting Commander-in-Chief Twelfth Army from October 1941 to August 1942 and Deputy Armed Forces Commander Southeast during the same period.
The defendant Hermann Foertsch, was a General der Infanterie (lieutenant General, Infantry) in the German Armed Forces, serving as Chief of Staff Twelfth Army from May 1941 to August 1942; Chief of Staff Army Group E from August 1942 to August 1943; and Chief of Staff Army Group F from August 1943 to March 1944.
The defendant Franz Boehme, was a General der Gebirgstruppen (Lieutenant General, Mountain Troops) in the German Armed Forces, serving as Commander XVIII Mountain Army Corps from April 1941 to December 1941; Plenipotentiary Commanding General in Serbia from September 1941 to December 1941; and Commander-in-Chief Second Panzer Army from June 1944 to July 1944.
The defendant Helmuth Felmy was a General der Flieger (Lieutenant General, Air Force) in the German Armed Forces, serving as Commander Southern Greece from June 1941 to August 1942; and Commander LXVIII Army Corps from June 1943 to October 1944.
The defendant Hubert Lanz, was a General der Gebirgstruppen (lieutenant General, Mountain Troops) in the German Armed Forces, serving as Commander I Mountain Division from October 1940 to January 1943; and Commander XXII Mountain Army Corps from August 1943 to October 1944.
The defendant Ernst Dehner, was a General der Infanterie (Lieutenant General, Infantry) in the German Armed Forces, serving as Commander LXIX Army Reserve Corps from August 1943 to March 1944.
The defendant Ernst von Leyser, was a General der Infanterie (Lieutenant General, Infantry) in the German Armed Forces, serving as Commander XV Mountain Army Corps from November 1943 to July 1944; and Commander XXI Mountain Army Corps from July 1944 to April 1945.
The defendant Wilhelm Speidel, was a General der Flieger (Lieutenant General, Air Force) in the German Armed Forces, serving as Commander Southern Greece from October 1942 to September 1943; and Military Commander Greece from September 1943 to June 1944.
The defendant Kurt von Geitner was a General Major (Brigadier General) in the German armed Forces, serving as Chief of Staff to the Commanding General in Serbia from July 1942 to August 1943; and Chief of Staff to the Military Commander of Serbia and Military Commander Southeast from August 1943 to October 1944.
It is alleged in the indictment that the acts charged were violative of Control Council Law No. 10, duly enacted by the Allied Control Council on 20 December 1945. The portions of the law applicable to this case provide as follows:
"1 (b) War Crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
" (c) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
"2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission * * *.
"4 (b) The fact that any person acted pursuant to the order of his government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation."
Pursuant to the provisions of Control Council Law No. 10, the pertinent parts of which arc herein set out, the United States of America filed its indictment charging the defendants in four counts with War Crimes and Crimes against Humanity in accordance with the definitions thereof therein contained. Reduced to a minimum of words, these four counts charge:
1. That defendants were principals or accessories to the murder of hundreds of thousands of persons from the civilian population of Greece, Yugoslavia and Albania by troops of the German Armed Forces; that attacks by lawfully constituted enemy military forces, and attacks by unknown persons, against German troops and installations, were followed by executions of large numbers of the civilian population by hanging or shooting without benefit of investigation or trial; that thousands of non-combatants, arbitrarily designated as "partisans", "Communists", "Communist suspects", "bandit suspects" were terrorized, tortured and murdered in retaliation for such attacks by lawfully constituted enemy military forces and attacks by unknown persons; and that defendants issued, distributed and executed orders for the execution of 100 "hostages" in retaliation for each German soldier killed and 50 "hostages" in retaliation for each German soldier wounded.
2. That defendants were principals or accessories to the plundering and looting of public and private property, the wanton destruction of cities, towns and villages, frequently together with the murder of the inhabitants thereof, COURT NO.
V, CASE NO. VII.
and the commission of other acts of devastation not warranted by military necessity, in the occupied territories of Greece, Yugoslavia, Albania and Norway, by troops of the German Armed Forces acting at the direction and order of these defendants; that defendants ordered troops under their command to burn, level and destroy entire villages and towns and thereby making thousands of peaceful non-combatants homeless and destitute, thereby causing untold suffering, misery and death to large numbers of innocent civilians without any recognized military necessity for so doing.
3. That defendants were principals or accessories to the drafting, distribution and execution of illegal orders to the troops of the German Armed Forces which commanded, that enemy troops be refused quarter and be denied the status and rights of prisoners of war and surrendered members of enemy forces be summarily executed; that defendants illegally ordered that regular members of the national armies of Greece, Yugoslavia and Italy be designated as "partisans", "rebels", "communists" and "bandits", and that relatives of members of such national armies be held responsible for such members' acts of warfare, resulting in the murder and ill treatment of thousands of soldiers, prisoners of war and their non-combatant relatives.
4. That defendants were principals or accessories to the murder, torture, and systematic terrorization, imprisonment in concentration camps, forced labor on military installations, and deportation to slave labor, of the civilian populations of Greece, Yugoslavia and Albania by troops of the German Armed Forces acting pursuant to the orders of the defendants; that large numbers of citizens democrats, nationalists, Jews and Gypsies - were seized, thrown into concentration camps, beaten, tortured, illtreated and murdered while other citizens were forcibly conscripted for labor in the Reich and occupied territories.
The acts charged in each of the four counts are alleged to have been committed wilfully, knowingly and unlawfully and constitute violations of international conventions, the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and were declared, recognized and defined as crimes by Article II of Control Council Law No. 10 adopted by the representatives of the United States of America, Great Britain, the Republic of France and the Soviet Union.
The defendant Franz Boehme committed suicide prior to the arraignment of the defendants, and the Tribunal has ordered his name stricken from the list of defendants contained in the indictment. The defendant Maximillian von Weichs became ill during the course of the trial and it having been conclusively ascertained that he is physically unfit and unable to appear in court before the conclusion of the trial, his motion that the proceedings be suspended as to him was sustained. This holding is without prejudice to a future trial of this defendant on the charges herein made against him if and when his physical condition permits.
Before venturing into a discussion of specific issues, it seems advisable to briefly statue the general nature of international law and the sources from which its principles can be ascertained. No attempt will be here made to give an all inclusive definition of international law, in fact, there is justification for the assertion that it ought not to be circumscribed by strict definition in order that it may have ample room for growth.
Any system of law that is obviously subject to growth by the crystalization of generally prevailing custom and practice into law under the impact of common acceptance or consent, must not be confined within the limits of formal pronouncement or complete unanimity. For our purposes it is sufficient to say that international law consists of the principles which control or govern relations between nations and their nationals. It is much more important to consider the sources from which these principles may be determined.
The sources of international law which are usually enumerated are: (1) customs and practices accepted by civilized nations generally, (2) treaties, conventions and other forms of interstate agreements, (3) the decisions of international tribunals, (4) the decisions of national tribunals dealing with international questions, (5) the opinions of qualified text writers, and (6) diplomatic papers. These sources provide a frame upon which a system of international law can be built but they cannot be deemed a complete legal system in themselves. Any system of jurisprudence, if it is to be effective, must be given an opportunity to grown and expand to meet changed conditions. The codification of principles is a helpful means of simplification, but it must not be treated as adding rigidity where resiliency is essential. To place the principles of international law in a formalistic straight-jacket would ultimately destroy any effectiveness that it has acquired.
The tendency has been to apply the term "customs "and practices accepted by civilized nations generally", as it is used in international law, to the laws of war only.
But the principle has no such restricted meaning. It applies as well to fundamental principles of justice which have been accepted and adopted by civilized nations generally. In determining whether such a fundamental rule of justice is entitled to be declared a principle of international law, an examination of the municipal laws of states in the family of nations will reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified. There is convincing evidence that this not only is but has been the rule. The rules applied in criminal trials regarding burden of proof, presumption of innocence, and the right of a defendant to appear personally to defend himself, are derived from this source. Can it be doubted that such a source of international law would be applied to an insane defendant? Obviously he would not be subjected to trial during his incompetency. Clearly, such a holding would be based upon a fundamental principle of criminal law accepted by nations generally. If the rights of nations and the rights of individuals who become involved in international relations are to be respected and preserved, fundamental rules of justice and right which have become commonly accepted by nations must be applied. But the yardstick to be used must in all cases be a finding that the principle involved is a fundamental rule of justice which has been adopted or accepted by nations generally as such.
The defendants invoke the defensive plea that the acts charged as crimes were carried out pursuant to orders of superior officers whom they were obliged to obey, This brings into operation the rule just announced.
The rule that superior order is not a defense to a criminal act is a rule of fundamental criminal justice that has been adopted by civilized nations extensively. It is not disputed that the municipal law of civilized nations generally sustained the principle at the time the alleged criminal acts were committed. This being true, it properly may be declared as an applicable rule of international law.
It cannot be questioned that acts done in time of war under the military authority of an enemy, cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war. Implicit obedience to orders of superior officers is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act done pursuant to a superior's orders be murder, the production of the order will not make it any less so. It may mitigate but it cannot justify the crime. We are of the view, however, that if the illegality of the order was not known to the inferior and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and the inferior will be protected. But the general rule is that members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command which violates international law and outrages fundamental concepts of justice. In the German War Trials (1921), the German Supreme Court of Leipzig in The Llandovery Castle case said: "Patzig's order does not free the accused from guilt. It is true that according to paragraph 47 of the Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation of the law as is punishable, the superior officer issuing such an order is alone responsible.
According to No. 2, however, the subordinate obeying such an order is liable to punishment, if it was known to him that the order of the superior involved the infringement of civil or military law."
It is true that the foregoing rule compels a commander to make a choice between possible punishment by his lawless government for the disobedience of the illegal order of his superior officer, or that of lawful punishment for the crime under the law of nations. To choose the former in the hope that victory will cleanse the act of its criminal characteristics manifests only weakness of character and adds nothing to the defense.
We concede the serious consequences of the choice especially by an officer in the army of a dictator. But the rule becomes one of necessity, for otherwise the opposing army would in many cases have no protection at all against criminal excesses ordered by superiors.
The defense relies heavily upon the writings of Professor L. Oppenheim to sustain their position. It is true that he advocated this principle throughout his writings. As a co-author of the British Manual of Military Law, he incorporated the principle there. It seems also to have found its way into the United States Rules of Land Warfare (1940). We think Professor Oppenheim espoused a decidedly minority view. It is cased upon the following rationale: "The law cannot require an individual to be punished for an act which he was compelled by law to commit." The statement completely overlooks the fact that an illegal order is in no sense of the word a valid law which one is obliged to obey.
The fact that the British and American Armies may have adopted it for the regulations of its own armies as a matter of policy, does not have the effect of enthroning it as a rule of international law. We point out that army regulations are not a competent source of international law. They are neither legislative nor judicial pronouncements. They are not competent for any purpose in determining whether a fundamental principle of justice has been accepted by civilized nations generally. It is possible, however, that such regulations, as they bear upon a question of custom and practice in the conduct of war, might have evidentiary value, particularly if the applicable portions had been put into general practice. It will be observed that the determination, whether a custom or practice exists, is a question of fact. Whether a fundamental principle of justice has been accepted, is a question of judicial or legislative declaration. In determining the former, military regulations may play an important role but in the latter, they do not constitute an authoritative precedent.
Those who hold to the view that superior order is a complete defense to an international law crime, base it largely on a conflict in the articles of war promulgated by several leading nations. While we are of the opinion that army regulations are not a competent source of international law, where a fundamental rule of justice is concerned, we submit that the conflict in any event does not sustain the position claimed for it. If, for example, one be charged with an act recognized as criminal under applicable principles of international law and pleads superior order as a defense thereto, the duty devolves upon the court to examine the sources of international law to determine the merits of such a plea.
If the court finds that the army regulations of some members of the family of nations provide that superior order is a complete defense and that the army regulations of other nations express a contrary view, the court would be obliged to hold, assuming for the sake of argument only that such regulations constitute a competent source of international law, that general acceptation or consent was lacking among the family of nations. Inasmuch as a substantial conflict exists among the nations whether superior order is a defense to a criminal charge, it could only result in a further finding that the basis does not exist for declaring superior order to be a defense to an international law crime. But, as we have already stated, army regulations are not a competent source of international law when a fundamental rule of justice is concerned. This leaves the war clear for the court to affirmatively declare that superior order is not a defense to an international law crime if it finds that the principle involved is a fundamental rule of justice and for that reason has found general acceptance.