CONCLUSION These then are the wicked men and this the depraved record of their crime in five countries for four years.
Since the various aspects of the legal issues involved in this proceedings have already been stated in the Prosecution's two memoranda, there is no need here to tread that ground again. The defendants would have this Tribunal deny the right of a people to fight back against a temporary conqueror, no matter how flagrant his aggressor or how cruel the regime of his occupation. Such a result would surely encourage some future tyrant to make his bid for world domination. Moreover, it is not for the defendants now to complain of violations of international law which were allegedly committed against them. It was their own violations of international law -- the mass executions, exploitation, destruction -- to say nothing of the initial violation of Greek and Yugoslavia sovereignty -- which gave rise to be resistance which these defendants now contend was beyond the pale.
The rights and privileges of an occupier under international law do not accrue simply because a land is declared conquered and occupied. The occupation must be effectively maintained. It is precisely on that issue that the legal arguments of the defense on the unlawfulness of partisan resistence breaks down. One need not go into all of the details here. But the fact does remain that the initial conquest of Greece and Yugoslavia was not maintained. If what the defendants say is true that they could leave, at any given moment and for any given place, subdued the partisan opposition, one naturally asks why that was not done. They very fact that each of the defendants has testified to having loudly and continuously pleaded for troop reinforcements is in itself a complete admission of the military failure of the German occupation.
After the plenititude of documentary evidence submitted here, it would be supererogation to set forth again all the reasons why the Greek and Yugoslav guerilla forces were entitled to recognition as lawful enemy belligerents.
That they were, that they were recognized by the Allied forces as such, and indeed that these defendants themselves urged similar recognition upon their own government is much too clear to necessitate further argument.
The prosecution has also argued that the execution of hostages is unlawful per se. That fact is recognized not only by the specific statute under which this proceedings is brought, but by pre-existing, international law as well.
The defense has attempted to dispute our contention that Control Council Law No. 10 is a correct statement of existing international law on the hostage by the Allies during the last war. But none of the evidence which has been brought forward proves what it was advanced to prove. The rebuttal witness David Bernstein made the defense testimony regarding an alleged American announcement threatening the execution of hostages at a 200:1 ratio complete perjury, and the affidavit of Franz Karl Maier did likewise with respect to the supposed. -
THE PRESIDENT: Pardon me; it will be necessary to take a brief recess in order to -
MR. FENSTERMACHER: Put in more tape?
THE PRESIDENT: Put in more tape -- mechanical matters. We will take a brief recess.
THE MARSHAL: The Court will be in recess for five minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. FENSTERMACHER: The defense has attempted to dispute our contention that Control Council Law No. 1p is a correct statement of existing international law on the hostage question by introducing evidence of alleged executions of hostages by the Allies during the last war; but noe of the evidence which has been brought forward proves what was advanced to prove.
The rebuttal witness David Bernstein made the defense testimony regarding an alleged American announcement threatening the execution of the hostages at a 200:1 ratio complete perjury and the affidavit of Franz Karl Maier did likewise respect to the supposed 5:1 hostage order said to have been publicly posted in Stuttgart by the French occupation authorities.
The evidence indicating that four hostages were executed by French troops in the village of *eutlingen in retaliation for the death of a French soldier is ambiguous and indefinite at best. The placard which was posted following that supposed execution of hostages stated that "those responsible" for the shooting had been apprehended and shot. It is certainly not clear beyond doubt that any hostages were ever executed by the French at all. Moreover, if hostages were really shot on that occasion, it was in flagrant violation of Section 21 of the French Army regulations which provides only for the taking and not for the execution of hostages.
The attempt to prove that the Control Council Law is an inaccurate statement of international law by demonstrating that the American Army considers the execution of hostages not to be unlawful met with a similar lack of success. The entire file of the American 6th Army Group on the question of the American attitude towards the order of the French General LeClerc in Strassbourg which provided for the execution of five hostages for each French soldier killed by snipers in that city is a complete refutation of the defense attempt. The LeClerc proclamation was in effect not more than twenty-four hours at most. As soon as American authorities heard of it, it was rescinded for the very reason that it was in violation of international law.
A supposed execution of hostages in the city of Markdorf was also alluded to. But in that case too the evidence of the defense is on its face irrelevant. One affiant stated that no hostages were executed at Markdorf but rather that German soldiers dressed in civilian clothes had been captured and dealt with obviously as spies.
It is apparent, therefore, that not one single hostage execution was proved to have been carried out by the enemies of Germany during the entire war. But even assuming for the sake of argument that there had been violations of international law on the part of Germany's opponents, that still would not destroy the validity of the law under which we are proceeding. It is a common place to say that two wrongs do not make a right. To assume that the organized planned and governmentally-authorized executions of hostages which the Germans committed can, even if individual, sporadic, unorganized and unauthorized hostages killings were carried out by the Allies, could rescind or make ineffective international law upon the subject is, of course, illogical in the extreme. If international law ceases to be such because cf sporadic violations, there will never be any such law, no legal system could survive such a theory. Under the defense theory of how international law is made the criminal himself could prevent the enactment of the very law which would make his act unlawful. The criminal then, by his negative action, could in fact annual any attempt by the rest of society to make him responsible for his deed.
But even if the execution of a single hostage were not a crime in itself, the evidence of the numbers of hostages killed and the ratios employed which has occupied the attention of this Tribunal for these seven months would sustain convictions against each one of these defendants. The defense here has sought to avoid the application of hostages law to this evidence by advancing the theory that these executions are justifiable under the doctrine of reprisal. But not a single one of the criteria which govern the taking of reprisals was met in the case of these defendants. By their own testimony, the questions of the lawfulness of their measures was completely irrelevant. Every miner German officer was permitted to order reprisals that were not only completely disproportionate, but based solely on revenge as well.
Our interruption of the law with respect to superior orders and military necessity has also been set forth in great detail elsewhere. The number of cases in which the defense of superior orders has been held not to confer immunity from criminal responsibility are legion. And General Winter, a defense witness, gave the lie to the plea of military necessity when he told the conference of chiefs of staff on 9 December 1943 that if reprisal measures were to be made effective, then the "really" guilty had to be sought out, and that the execution of hostages and the levelling of entire innocent villages would merely bring about an increase in the bands. It is precisely because of the military stupidity of the heavy-handed policy that the Germans were eventually forced to withdraw from the Balkans.
There, then are the facts, the law and the men with which we have been concerned over this extended period. How they shall be punished for their ruthless offenses against humanity is to be decided by this Tribunal in its wisdom. It may be true that the defendants did not each commit crime in the same degree or to the same extent.
Murder is murder whether it be committed singly, by tens or by tens of thousands. It is no defense to Leyser that he did not kill on the same scale as List and Kuntze. Each executed commissar is still an oven violation of the most fundamental precept in the soldier's code -- an enemy who has laid down his arms in surrender may not be killed because he wears a particular emplem on his sleeve.
If the Tribunal believes that comparisons between this case and others is instructive, there are many examples and precedents which merit examination. A number of the colleagues and subordinates of these defendants have had to answer for similar crimes or similar charges -- Loehr and Kuebler and Neidholdt in Yugoslavia, Brauer and Mueller and Andrae in Greece, Others have been called to very severe account on charges very much narrower then those which have been brought, and we submit, amply proved in this case. Field Marshal Kesselring and Generals Mackensen and Maeltzer were sentenced to death, and then reprieved to a life sentence, because of a single large hostage execution at a ratio of 10-to-1 in Rome in 1944 and because of certain general orders with respect to the treatment of Italian partisans which were in effect for only a short time and were not nearly as want only brutal as the orders issued and enforced by these defendants. Other generals have been convicted of capital offenses because of their responsibility for the killing of Allied airmen who had been forced down in Germany, and General Anton Doestler has been tried and shot for the execution of American rangers in compliance with the criminal mandate of the Commando Order.
The task of making the punishment fit the crime is the task of this Tribunal not of the prosecution; but the prosecution cannot say that it believes the action taken in these other cases to have been unreasonable or unduly severe, and we suggest that willful participation in a systematic and preconceived program of crime, such as has been proved in this case, is, from the standpoint of world society, a far more serious offense than responsibility for isolated or spasmodic criminal outbursts. Charity and forgiveness are among the divine attributes of man, but they, like all other capacities, must be exercised with intelligence and discrimination or they lose their meaning.
We must not allow false mercy here to insult the hundreds of thousands who lie buried in Greece, Yugoslavia and Norway because of what these men did; Justice must be wise and firm as well as merciful.
One might perhaps have been more moved to feel pity for their fate had any one of them shown the slightest sign of remorse or given the gaintest indication of repentance for what they have done. But in explanation and excuse they have only pointed out the personal, national, and international tragedies which intruded upon their lives. They, all of whom served in the first World War, say that they returned to a milieu of hopelessness and collapse, that they were subjects to political, economic and social forces for crushing impact and titanic magnitude, and that they are the hapless victims and the whipped and unresponsible products of a confused people in a disturbed and bewildered world. It is this philosophy of emotional fatalism which has made their proffered excuses of individual and collective guilt so cowardly and contemptible.
Their fault, like Brutus', lay in themselves and not in their stars. It was their individual response to their own individual situations which marked their failure. It is not because they were soldier, nor because they have lost, but because they were not men, that we ask now that they be permitted to the reap the full harvest of that which they so conscientiously sowed.
These men have disgraced themselves, so shamed their own profession and their country that it will be decades before the world will be able to think again in terms of the Germany of Schiller and Heine and Mendelsohn and Brahms. It is not their individual fates for which we now feel concern. Their power for evil has already been broken. None of them will ever lead the legions of the Wehrmacht again. But if what they have done is not branded as criminal if the mythe they seek so desperately to perpetuate are not clearly labeled as such; if the facade of starched respectability behind which they seek to hide is not disclosed -- then another generation of Germans may rise to revere them, accept their ethics, and say they did no wrong.
The real complainant at this bar is civilisation. Let its plea be granted, lot those who would destroy it be punished, let its laws be upheld.
THE PRESIDENT: I take it that you have concluded your presentation of the argument on behalf of the prosecution?
MR. FENSTERMACHER: That is right, your Honor.
THE PRESIDENT: The Tribunal will be in recess until 9:30 tomorrow morning.
(The Tribunal adjourned until 4 February 1948, at 0930 hours.)
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 4 February, 1948 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 if all defendants are present in the Courtroom.
THE MARSHAL: May it please Your Honors all defendants are present in the Courtroom.
THE PRESIDENT: Judge Carter will preside at today's session.
DR. LATERNSER: If it please the Tribunal, I have a brief preliminary statement to make concerning the English text of the final plea. I received same yesterday in the morning and in the meantime I have been in a position to have parts of the translation checked. The corrections which arose from this check-up have been compiled and I would like to have a copy handed to the Tribunal.
PRESIDING JUDGE CARTER: Very well. You may proceed.
Your Honors, May it please the Tribunal -In the long series of trials which have been held against leading members of the German Officers' Corps, the trial against Field Marshal List is a new, and in many respects, an especially remarkable one.
Once again in a mass trial a number of German generals are called into the lists to face an enemy Tribunal, and sometimes it seems as if the chain of these trials will not be broken until the lists of the highest commanders in American custody are exhausted and they are all condemned.
The only question now is how future generations will judge this new attempt at a penal apprehension of the events of a gigantic world-wide war.
There is no doubt that the methods of warfare during the course of the years have intensified increasingly. This applies, however, to both sides. But the cases in which deviations were made from the ground of international law were completely different. As far as violations of definite fixed rules of international law were concerned, I am the last man to dispute the right to take proceedings against the perpetrators. As far as matters which lack adequately clear fules about which there can be no misconception are concerned, the legal position must be judged in a fundamentally different manner.
The charges against Field Marshal List belong exclusively to the second group. They refer to spheres in which the provisions of International Law are either still entirely undeveloped or are elastic or contradictory. By grouping their trial with the large chain of Nurnberg trials, it falls to the lot of men, who up till now have rejoiced in a blameless name and reputation, to be placed together with the leading exponents of the NSDAP and the SS.
This attempt by the Prosecution to implicate officers with those who bear political responsibility contradicts historical facts.
The German soldier and officer has always enjoyed the highest respect amongst soldiers throughout the world because of their military ability and their generally acknowledged chivalry in waging war. These qualities have also been recognized by the enemy in this war, and in this connection, I should like to refer to Field Marshal Alexander, who confirmed the fair and praiseworthy waging of war in the Italian Theatre.
May it please the Tribunal -
The defendants did not don their uniforms for the first time during the National Socialist period. In fulfilling their duty throughout decades, it was their one desire to uphold the ideals of German soldierdom, its principles of decency and purely objective tasks, and to perform them in the fact of all the new developments of the Hitler regime which were occurring around them and expanding more and more.
These centuries of old German Army tradition which - as Field Marshal List often expressed to his confidential colleague General Olbricht, who was executed for participation in the attempt on Hitler's life - "were an unbridgeable gap" between officers and the exponents of the Hitler regime. Is he supposed to have thrown all this overboard shortly before the end of his long period of service, and to have become a war criminal?
Is it possible for men of such origin, with such careers and such development as Field Marshal List and the other defendants, suddenly to become criminals?
Is it credible that these men subordinated themselves to an alleged plan to decimate or to exterminate the population of occupied countries?
Here, too, history in its own way will seed and will find the truth, and in so doing will take into account the unique, difficult situation in which these men were placed.
It will also discover that the Nurnberg prosecution in its one-sided method of observation has not properly tracked down causes and backgrounds, has overlooked vast implications, and in many cases has looked at things upside down.
How would it be possible otherwise for these men to be implicated in plans which are completely alien to their disposition, and for it to be completely disregarded that all these officers were far removed from the ideology and logic of the Hitler regime?
During this trial, the defense considered it its task to show how things were in reality - how Field Marshal list was never a Nazi -General, how he was always opposed to the exponents of the Party and its organizations, and how more than once there were serious conflicts between him and Hitler. The unbridgeable opposition between the two finally led to the premature discharge of Field Marshal List in 1942. His whole past experience removed him clearly from Hitler, his people, and the National Socialist ideology. These facts did not prevent the prosecution from attributing to Field Marshal List motives and plans which were always alien and unknown to his whole being.
I address an urgent appeal to the Tribunal not to follow the prosecution along this road, but to keep the following facts in view: when Field Marshal List left the Army, he had 44 years of an honorable career behind him; and he enjoyed the highest esteem not only at home, but abroad as well. Persons of the most varied nationalities were among his pupils, and missions from many countries participated in military maneuvers under his command. None of the literature as yet published concerning the events of the World War II contains one single unfavorable word about him.1) A man who can produce all these facts to speak on his behalf does not suddenly become overnight a murderer and a pyromaniac who rejoices in torturing and oppressing occupied countries and innocent civilian populations drawn into the miseries of war! I think it not only a cardinal rule in the procedural law of civilized countries but also a natural commandment of judicial fairness to attribute unfair motives to a man with such a past only on the basis of quite definite evidence.
I must stress this fact here at the very beginning because essential parts of the indictment will then appear from the start in a different light.
Your Honors, in this connection I have reason to refer to the instructive course of events which followed the verdict in the case of Field Marshal Kesselring. It was the prosecutor himself who, at the beginning of this present trial, mentioned the strong differences of opinion which arose in England concerning this verdict. The violent opposition which it called forth there must constitute food for thought for every jurist. This verdict met with such disbelief and so much indignant rejection in England because people saw in it a striking
1.) Cf. part., notes in von Hassel, From the Other Germany. Ambassador von Hassel was sentenced to death for participation in the attempted murder on 20 July 1944.
contradiction: the condemned man was known to the world as an able soldier and an honorable man, and his former enemies on the Italian front did not hesitate to testify for him in public to this effect during the trial and after the pronouncement of the verdict. All this refers to the same man who was supposed to have been guilty of the basest war crimes.
It is encouraging evidence of the alertness, the sensitivity, and the profound awareness of law in the British people that they reacted immediately to this contradiction and took their authorities to task for this striking sentence.
In its detailed comment on the sentence against Field Marshal Kesselring, from which one can see the profound uneasiness of British public opinion concerning this sentence by the British Military Tribunal, the Manchester Guardian wrote on 22 May 1947 that considerable doubt must arise as to whether and to what extent German generals can be made responsible for the events of the war. Because:
"There is an uncomfortable feeling that we have sentenced these men to death because they are figureheads, the commanders of a defezted army whose execution would satisfy the public clamour for revenge. But that is not justice as we understand it." (Underlining added).
My request to you, Your Honors, is that when making your concluding evaluation of the case in question, Your Honors proceed from the desire and the firm purpose not to be influenced in the least by the prejudices and insinuations of the prosecution, and always bear in mind the sort of personality Your Honors are dealing with in Field Marshal List.
I should like to prefact my statements with two legal points of view.
They are the two questions:
1. Is this Tribunal competent and, 2. Is Control Council Law No. 10 binding for an American Court?
All the Generals charged were officers of the German Wehrmacht in the last war. They fell into the hands of the enemy as combattants in the sense of Article I of the Supplement to the Hague Land Warfare Convention.
According to the Geneva Convention, they, therefore, have the right to be recognized as prisoners of war.
Even in peacetime it is an acknowledged fact that the soldier comes under a special law. His judges are soldiers, because even in peacetime the life of the soldier is governed by different conditions and demands from that of the civilian.
This applies in a much more intensified form to wartime. It is therefore all the more important that the activities of a soldier during war are judged by a court composed of soldiers. The United States also acts in accordance with this principle as regards its own soldiers.
The rights of the soldier captured during war are defined in the Geneva Convention. According to Article 63 sentence against a prisoner of war can only be passed by the same courts and according to the same proceedings as against members of the custodial country. But Article 8 of the Supplement to the Hague Land Warfare Convention also subjected the prisoner of war to the laws, regulations, and orders which are valid in the army of the country in whose custody he finds himself.
In this connection it is not undisputed that the custodial country is also authorized to judge those deeds which were committed before capture.
If one answers this question in the affirmative - the reasons are immaterial - then Article 63 also applies.
The compass of deeds committed during captivity is not very large. They mainly concern disobedience, resistance to guards and superiors, mutiny, and similar offenses. The fact that the Geneva Convention prescribes the judgment of these deeds by a court composed of soldiers, is not disputed even by the prosecution. The legislative basis for this regulation applies to a much greater extent to war actions carried out within the sphere of high military command. These are the very actions which require judgment by intensely personal expert knowledge based on experience.
This is acknowledged not only by English courts which conducted the trials against Field Marshal Kesselring and Generals von Falkenhorst and Stumpf through genuine Military Tribunals. The practice of the United States has followed the same course, as in the recent trial against Skorzeny before an American Military Tribunal in Dachau. The Tribunal there was composed of American officers.
From this it follows that the defendants have a right to trial before a court composed of soldiers which, according to Article 12 of the Articles of War of the United States, must be a High Military Court (Oberkriegsgericht). This High Military Court must, according to Article 16 of the same rules, be composed of officers in rank not lower than those being tried.
This right to trial before a court composed of soldiers which is based not only on Article 63 of the Geneva Convention, but also on Article 8 of the Supplement to the Hague Land Warfare Convention, is in no way eliminated by the fact that attempts have been made to discharge Field Marshal List as a prisoner of war.
May it please the Tribunal.
Your Honors will recall that Field Marshal List protested against his discharge which he felt to be contrary to international law.1) I submitted a formal protest with detailed argumentation in a letter dated 6 June 1946 to the Commanding General of the Third United States Army.2) From a legal point of view this so-called discharge from captivity as a prisoner of war is to be considered as follows:
The agreement concerning the treatment of prisoners of war dated 27 July 1929 (Geneva Convention) contains regulations to which the signatory powers are unconditionally bound.
According to its provisions, not only have soldiers taken prisoner a right to treatment according to the provisions of the agreement by the custodial country, but the latter is also obliged to apply the Geneva Convention. It can on no account one-sidedly and arbitrarily rescind its obligation.
According to Article 75 of the Geneva Convention belligerents have to undertake basic arrangements concerning the repatriation of prisoners of war when armistice is concluded. If no arrangements of this kind exist, then the repatriation of the prisoners of war has to take place within as short a time as possible after peace has been concluded.
1) Li 550, VI, 32
2) Li 340, VI, 25 In the meantime, prisoners of war, in the case of criminal proceedings for a crime against the common law, can be held in the position of p r i s o n e r s of w a r until the end of the trial or until they have served their sentence.
From this regulation, especially in connection with Article 83 of the Geneva Convention,1) it can be seen that the custodial power can, it is true, release prisoners of war at any time even before the conclusion of peace; but according to the meaning of the agreement only in the case of an improvement in their position, not a w o r s e n i n g, under maintenance of the exercise of custody by the enemy power.
The release of captive generals as prisoners of war with the simultaneous order for their further arrest as civilian internees, whereby they were deprived of the privileges decreed for prisoners of war alone, is, as a result of the worsening of their position, an obvious offense against the Geneva Convention. Because Article 83 defines expressly that prisoners of war, until they have been repatriated, must benefit from these agreements (Geneva Convention).
The question of whether the defendants on the sole basis of the assumption or statement that a central German government no longer exists, derive no rights from the Geneva Convention, I can deal with quite briefly - in spite of the prosecution standpoint.
If this were so, then a victor at its own discretion could make the obligations it assumed in agreeing to the Geneva Convention illusory this would certainly be an untenable conclusion.
1) Text of Article 83, paragraph 2, of the Geneva Convention. "Prisoners of war shall receive the benefit of these agreements until the completion of repatriation, except in the case of express stipulations to the contrary contained in the above-mentioned agreements or in later agreements, or also except in the case of more favorable measures taken by one or the other of the belligerent Powers respecting the prisoners which they hold."
According to this, it is quite clear that the discharge of Field Marshal List is not effective, because it would have constituted an offense against the Geneva Convention.
Field Marshal List is therefore still definitely a prisoner of war and has the right to trial by a court which is competent to try an American General with rank equivalent to that of a Field Marshal.
The ruling quoted by the prosecution in the YAMASHITA case before the Supreme Court of the United States was only partially available to me. But as far as I could see, the opinion of the Supreme Court - that Article 63 was applicable only in judging deeds committed during captivity as a prisoner of war - was based exclusively on a literal interpretation of this article in the Geneva Convention.
This basis seems too narrow and too formal. Because, to begin with, there is no single mention of Article 8 of the enclosure to the Hague Land Warfare Convention, which expressly sets down the laws, instructions, and orders governing prisoners of war, which apply to the soldiers of the custodial country, w i t h o u t the literal phrasing of this Article allowing for a similar conclusion as arrived at by the Supreme Court with regard to Article 63. But finally the Supreme Court disregarded one main point of view:
In the legislation of a l l countries the soldiers are governed by a special law and have, if necessary, to answer to courts of s o l di e r s. From this fact a custom of international law, necessarily arises which must be observed in order to guarantee a just decision on such a complicated case in a military sense.
This brings me to the conclusion that the court set up here is not competent.
If we now investigate the question of whether the American Courts are bound by Control Council Law No. 10, which was issued on 20 December 1945 - that is, at a time when all the actions comprising the subject matter for this trial had already been committed - then we discover, first of all, that this law was issued in violation of the principles nullum crimen sine lege and nulla poena sine lege.
It was even created in violation of Proclamation No. 3 of the Control Council itself dated 20 October 1945 in which the Zone Commanders set down the basic principles for the organization of the administration of justice in Germany according to the achievements of democracy, civilization, and justice, and according to Article II, paragraph 2 of which states that a p u n i s h a b l e responsibility only exists for actions which the law has declared punishable.
In spite of the proclamation of the basic principles quoted, two months later Control Council Law No. 10 was issued.
I am certain that a penal law subsequently issued, and with retroactive power, would let loose a storn of indignation in the United States of America if it applied to United States citizens, although I am firmly convinced that the United States would never issue such a law for its own country.
The defendants stand before an American court which is obliged to review the constitutionality and legality of laws before applying them.
Since retroactive penal laws in e v e r y case contradict the demands of justice, this prohibits the application of Control Council Law No. 10 by an American Court.
The way out of this legal difficulty which up until now has been sought and s e e m i n g l y found is in no respect convincing. It is contended that actions declared punishable in Control Council Law No. 10 were already forbidded by the provisions of the international law. Law No. 10 merely establishes culpability and the measure of punishment.
A crime in the penal sense is, then, only present if a prohibited action is declared punishable. This very threat of punishment is the most essential part of the definition of a crime, and only through it will the penal standard become the LEX PERFECTA.
The fact that the Control Council - the originator of Law No. 10is also of this opinion, can be seen with particular clarity from proclamation No. 3 which has already been quoted, and which states expressly that punishable responsibility, only exists for actions which the law has declared p u n i s h a b l e.
We know that the American courts which have been active in Germany until now have applied, at times, Control Council Law No. 10.
But we also know that many voices have already been raised rejecting the applicability of Law No. 10 for legal reasons.
With regard to the question of the validity of Law No. 10 the statements made by a Heidelberg professor, Dr. Edward WAHL in a lecture1) on "Basic Problems of the Nuernberg Trials", seem to me to be of particular importance. He stated, among other things:
The Control Council Law threatens heavy punishment for the aggressive war which Hitler undertook against Poland in 1939 although it is certain that Russia - also one of the signatories to the Kellogg Pact and one of the controlling powers responsible for the Control Council Law - participated in this aggressive war as has been shown by the secret pacts between Molotov and Ribbentrop which have been submitted. We are therefore facing a situation in which one of the perpetrators of a criminal offense sets a standard of punishment or participates in the issuing of it. This standard of punishment has the nature of a judgment because it does not establish a punishment for any future offense as does normal penal law, but for a case which at the time when the law was issued was already concluded and which has been carried out by a limited circle of perpetrators. The London Agreement is for all practical intents and purposes called an "Agreement to Prosecute and Punish the Main War Criminals of the European Axis". In American Jurisdiction and in the literature concerning the prohibition contained in the expost facto law the difference between normal penal law with regard to the future and the standard for punishment regarding a crime the perpetration of which is a matter of the past has been
1) Given on 12 December 1947 as one of the lectures by professors at Heidelberg University.