Before this question may be answered I believe it necessary to point out once more how different the positions of Foertsch as Chief of Staff on the one hand and of Commanders in Chief on the other with regard to the OKW (High Command of the Wehrmacht), were. The Commanders in Chief were faced with the same problem they have to face in this trial, namely:
Should they obey these particular commands by the OKW (High Command of the Wehrmacht?) It was their own decision which they had to make, namely the decision between the obedience, which is self-understood in all armies in the entire world, and the disobedience, with all its consequences. Foertsch did not have to make this decision, in regard to the commands of the (OKW High Command), for himself. It therefore could not be expected of him - quite aside from a legally important cause - on a general basis that he encourage his High Commanders to refuse to carry out such orders since the results of such actions would have had to be borne above all by the Commanders in Chief.
If, however, the High Commander decided for himself that he considered himself bound to commands issued by the High Command of the Wehrmacht, this decision, in itself, meant the order to pass on those commands and to see to it that they were carried out, so that there was no room whatsoever left for advice to the contrary from the Chief of Staff.
It appears of special importance to me, to prevent that 2 problems are confused with one another.
First: The claim of superior order.
Second: The claim of the fact that no legal duty exist to incite somebody else to disobedience of commands. In this connection I do not refer to the first problem. This applies to Foertsch only if it could be prevent that he himself committed crimes against the laws of war and humanity. This is, as I hope to have shown already, not the case and I will complete the evidence as to this when the individual documents of the prosecution are discussed, and I will also speak briefly about the problem of military obedience. At this point, therefore, only the second question that the claim of superior order does not constitute an excuse or justification, could be stretched so far that even a legal duty could be construed to induce somebody else to disobey military commands which may be intended or the commission of or result in war crimes and crimes against humanity. If the significance of a military commands as a reason for excuse or justification is disputable, especially in view of the fact that the Control Council Law No. 10 - contrary to the International Law existing as far excludes the claim of superior order, it has never been expected, and cannot be taken from the Control Council Law No. 10 either, that someone who does not himself carry a certain responsibility - namely the Chief of Staff - must request someone else - namely his superior commander - to disobey orders; otherwise he, the Chief of Staff, will become co-responsible.
But aside from these considerations, which already concern the question of guilt, it must be stated that neglecting to request someone else to disobey orders could not possibly be a criminal reason for the execution of the allegedly criminal commands.
The reason for carrying out the orders was exclusively the decision of the Commander in chief who carried out the directives of the High Command of the Wehrmacht, submitted to him. A casuality of the advisory activities of General Foertsch could be construed only, if General Foertsch would have destroyed possible objections on the part of his superior commander against the legality of the commands in question and thereby would have prevented his decision to refuse to carry out these commands. This, however, has neither be maintained nor proven by the prosecution. In this connection it should be stated that is has also been neither maintained nor proven, that Foertsch, through his advise had prevented one of his commanders in chief from interfering for the benefit of preventing crimes.
I believe that I have discussed all possible questions connected with the problem of "Causality of the advisory activities of the Chief of General Staff Foertsch."
May I point out in conclusion once more what I have already discussed in detail before, namely that Foertsch's duty to advise to the Chief of General Staff concerned only tactical and operational questions. I therefore believe it impossible to include the problem of taking of hostages and reprisals into the tactical or operative questions as meant by the "manual for the General Staff Service."
C. Cages in which a participation of General Foertsch is already excluded by his absence;
At this point I would like to come back once more to the dominating influence of General Foertsch in the South East, as maintained by this assertion does not comply with the facts. The prosecution, in its opening statement on 15 July 1947, stated the following:
"The consistency of German measures of reprisal is the scarlet thread which is woven into this trial. These measures, as well as the physical presence of Foertsch, lends the periods of List, Kuntze, Loehr and Weich a constant even though shattering unity." (Page 77 of the German, page 72 of the English record.)
I now want to prove that Foertsch was a b s e n t when a considerable part of the events, which are the most important subjects of the indictment happened.
I refer in this connection to the following documents and records:
If the Tribunal please, I shall Skip the following pages which (quote examples. I merely wish to stress the fact that General Foertsch was absent when the OKW order of 16 September 1941, was issued and that he was also absent when General Boehme was appointed and installed in office. I shall continue reading.
I further wish to stress that during this time of absence I also include that time during which Field Marshal List had already been taken ill and General Kuenze had not yet taken over office from him.
I shall continue reading on page 50, top of the page.
One of the documents submitted on the last day when evidence was taken proves in a specially clear manner that also during this time Foertsch had no such command authority as was vested with the Supreme Commanders. Concerned is a communication by General Foertsch, of 18 October 1941, to the Chief of the General Staffs of the Commands which were subordinate to his Commander-in-Chief which may be found in the original in the Prosecution's Exhibit No. 664 -- to be specific, in that part which my colleague Dr. Laternser had submitted as supplement in the morning session of 22 January 1948. This communication reads as follows:
"S 32/6 KTB 93 The Chief of the General Staff Headquarters, 18 Oct.
1941 of the Wehrmacht Commander in the South - East NOKW-2870
TO: Chiefs of the General Staffs, etc.
Generalfeldmarschal List, the Wehrmacht Commander SE, intended to issue an order which was to concern itself with command channels within the command area of the Wehrmacht Commander SE. It could not be issued due to his sudden sickness.
With the request for dissemination to the Commanding Generals, Commanders, etc., I therefore inform you of contents of the intended order which reads as follows."
I shall now continue reading on page 51, the last paragraph on that page. It starts about the middle of the page.
If Foertsch had been the deputy of his sick Commander-in-Chief, or at least had actually exercised his power of command, he would not have felt the need to request the chiefs of the general staffs, of subordinate commands to inform their commanders of something. For in that case he could have issued the contents of his communication simply as an order. This communication proves the more the narrow limits set on the authority of the Chief of the General Staff as there was in this instance not even a matter of principles involved, and in addition, Feldmarschall List intended already before he became sick the issuance of such an order. Nonetheless, Foertsch issued no order to lower echelons, but merely requested the chiefs to inform the commanders. This exhibit is therefore virtually a classical example to show the legal position of a Chief of the General Staff.
D. The personal conduct of General Foertsch during his work in the South-East.
It should now be sufficiently evident that the prosecution's assertion that Foertsch - throughout several years and under four Commanders-in-Chief, had brought about and sanctioned a uniform and terrifying degree of cruelties committed by German troops in the South-East - is not only not proven but is even clearly refuted. I shall now set forth a brief summary of the points proved so far:
By reason of his office as Chief of the General Staff, Foertsch was not even legally in the position to issue orders for such acts, or to prevent their commission, acts which the prosecution wants to interpret as crimes against the laws of warfare and humanity.
He in fact neither held nor usurped such a position in the SouthEast. It would have been impossible for him to be involved in a large number of the prosecution's most important charges, if for no other reason but that he was not even present at the times under consideration, and hence could not be implicated at all.
It still remains for me to elucidate from the personal conduct of General Foertsch that the additional assertion of the prosecutor in his opening statement:
"We see the German army in its shameful role as the servant and tool of Himmler, Sauckel and other Nazi gangsters" (Page 16 of the German and page 17 of the English transcript) does under no circumstances apply to Foertsch, for on the contrary, he repeatedly was trying to take a stand against the consequences of Nazi dictatorship, by making personal calls at the OKW and presenting the views of his Commanders-in-Chief which were opposed to those held by the OKW; and by exercising himself in the South-East his limited personal influence in order to relieve the situation of the population.
I shall continue reading now on page 56, the second paragraph on this page pertaining to "2".
"As a witness, Foertsch stated repeatedly and unequivocally that he viewed the South-Eastern situation as one of compulsion which was highly against his wishes, and that he had tried everything within the limited power of his rank to remove the causes of this compulsory situation. These attempts, particularly, show General Foertsch to be a man who, although he had the necessary intelligence to clearly understand the connections, did not dispose of the power, especially the mower of command, to undertake anything; on his own responsibility, as is shown by his whole attitude towards the problems of the Balkan war. This his attitude completely precludes just that what the prosecution asserts, namely that Foertsch was a willing tool of the highest men in power, and that he even created in their image, as the man who was the most powerful or most prominent in the South-East, a uniform line of cruel policies there, and that he correspondingly influenced his supreme commanders to be "firebrands."
Whilst the prosecution has described its views of General Foertsch' personality and work with persuasive words to the Tribunal -- but proved them by nothing - I have proved exactly the opposite of the prosecution's opinions by the evidence which I presented. At this point I want to refer to the cross examination of the witness v. Harling which was carried out by the prosecution as a rebuttal in the session of 16 January 1948.
The prosecutor obviously tried, at this somewhat late occasion, to find out that Foertsch was the "Instigator". Although the prosecutor attacked the witness with all his might and tried to shake his affidavits for the defense at several points -- all that had been brought out was that for him, as the "Ic", and for the other members of the staff - Foertsch was the "Motor". This, however is nothing special and is completely within the scope of the Chief of the General Staff's position as superior of the other officers of the Staff, and does not prove - which alone is important - that Foertsch influenced his superior commanders. In addition, the witness v. Harling confirmed in a subsequent cross-examination that Foertsch was by no means the "Motor2 of the commanders who were subordinate to his superior commander, and he thus supplemented my formerly adduced evidence, namely for the purpose, that Foertsch neither had any power of command over subordinate commanders, not usurped it or did anything similar.
I now come to the attempts of General Foertsch to fight against the force of circumstances which confronted him in the South-East. Specially informative for this purpose are his APO letters to his wife, which reveal without taking into account the dangers caused by censorship, severe criticism of the supreme leadership, and they are therefore evidence of primary importance because they originated at a time decisive for the subject of the prosecution, and were written without consideration of a subsequent trial. The authenticity of those letters has not been contested by the prosecution. In this connection I refer to Foertsch Exhibits No. 20, 21, 23 and 28 in Doc. Book Foertsch II, pages 13, 14, 17, and 34. The letters quoted show first his general negative attitude towards the highest leadership, but also his attitude during his activity in the South-East which could not be brought into harmony with the aims of the party. Concerning the latter topic I wish to refer at this time still to Foertsch Exhibits 32, 34, 36, 38 and 39, pages 44, 55/56, 69, 83 and 90/92 of the Doc. Book Foertsch II, as well as to Exhibits 43, 46 and 54 in Doc. Book Foertsch III, pages 12, 33 and 70.
That Foertsch did not enthusiastically or of his own free will agree with the measures of the supreme leadership, but regarded them with views ranging from the critical to the hostile, will be seen not only from the APO letters quoted already, but also from the letters of Exhibit 27 and 29 in Doc. Book Foertsch II, pages 33 and 35; and Exhibits 55 and 56 in Doc. Book Foertsch III, pages 74 and 75.
I shall continue reading the last paragraph.
General Foertsch did not restrict himself to show only outwardly his hostile attitude concerning the Nazi system, nor his discontent regarding the measures of the supreme political and military command to his subordinates in the staff, but he also made at every opportunity constructive suggestions concerning the pacification of the South-Eastern area by measures with which the prosecution presumably could not find fault. It was clear to Foertsch that a more insubordination, or a request by his supreme commanders for insubordination, could not in the least change the plans of the highest leadership, nor their execution. He therefore had to restrict himself to make suggestions, or to say it mere precisely: to recommend to his superior commander to make suggestions to the OKW; their aim being to reinforce the military occupation of the country, and to stabilize the political and economic conditions to the satisfaction of the population. I have proved that General Foertsch, as Chief of the General Staff, had neither the power of command nor the decisive influence in the sense of criminal causality to commit the crimes alleged by the prosecution, or to be possibly responsible for their commission by others. The same applies of course positively to his attempts to create other basic conditions, and to make thereby superfluous measures which have now become the subject of the indictment. Consequently, has intervention for a "good purpose" was narrowed down by the limits of his authority as Chief of the General Staff. That he nevertheless always tried again to eliminate by constructive proposals the situation of constraint under which his superior commanders had to act, proves unequivocally that he was not the "Firebrand" as alleged by the prosecution.
In this connection I refer to the following evidence submitted for the defense of General Foertsch:
I shall continue on page 63, the heading of "3".
To 3) However, General Foertsch did not rest satisfied with stating his dissatisfaction to the Supreme Command nor with making constructive proposals to improve the situation by peaceful means but he also acted in complete agreement with the commands of humanity in every case where the general force of the circumstances, the orders from above and the natural limitations imposed upon him by his position as chief of staff left him the slightest opportunity to do so.
From the evidence submitted for this purpose I respectfully refer the Court to the following passages:
And then follow some quotations. I shall continue reading on page 65, after the beginning of the second paragraph.
5) Quite a different conclusion might be arrived at according to my argumentations to 1, 2 and 3: Whoever had manifested such an opposition to the ideology and the policy of the National-Socialistic State and who had also educated his fellow-officers, whoever had made such efforts to remove, by constructive proposals, the causes of a condition, which by necessity must lead to reprisals and he, who had acted in the described manner in the cases where he had not been under constraint, could not have been an "incited" (Schermacher) in advising his superior commanders nor could he have influenced them in the manner asserted by the prosecution.
I shall continue reading on page 67, paragraph "E".
E. A comparison of the position of General Foertsch as Chief of the General staff South-East on the one hand, and the authorities of the Chief of the Wehrmacht Operational Staff, Jodl, on the other hand.
The argument of the prosecution runs as follows:
Keitel and Jodl were also only chiefs of staff and yet they were sentenced to death by the IMT. As simple as this conclusion is, it is nevertheless false.
1) Keitel:
The following passage in the statement at the beginning of the IMT verdict seems to speak for the opinion of the prosecution:
"Keitel did not have command authority over the three Wehrmacht branches, which enjoyed direct access to the Supreme Commander.
OKW was in effect Hitler's military staff." IMT Trial Volume I page 288; page 16549 of the German Transcript" Further down in the opinion it is being stated, however, that Keitel himself had issued fundamental orders, for instance, the reprisal order of 16 September 1941 and the so-called "Night and Fog" decree of 7 Dec.
1941, and others.
The evidence of the prosecution in our trial contains many other examples of Keitel orders of a fundamental nature, orders which a chief of staff of a command authority, be it an army or army group, may not issue. Not only the contents of the Keitel orders, but also their exterior make-up, is proof of the fact that Keitel had quite other authorities, which cannot be compared with those of a chief of staff like Foertsch.
I shall omit the following quotations, and continue on page 71, at the bottom of the page, paragraph 3.
3) Keitel and Jodl:
Both belonged to the inner circle of Hitler's confidants, both of them were called upon, as military experts, to assist in implementing the political objectives of Hitler. Their qualifications alone enabled Hitler to carry out his intentions. Foertsch, on the other hand, was advisor and assistant to military experts who, moreover, had much more experience than he had.
In conclusion it is to be added that Keitel and Jodl were also sentenced above all for having been principals in the conspiracy to wage a war of aggression and for waging this war of aggression. A comparison between them and Foertsch cannot be made also for this reason.
Part II The individual counts of the indictment.
In every one of the four counts the Prosecution starts from the principle that the crimes which they assert to have been committed, were committed by troops who were subordinated to the authority of the Field Marshals and Generals on trial here, including also General FOERTSCH.
These troops were allegedly responsible to them and their actions were in conformity with orders issued, executed and passed on by the latter. I believe I furnished convincing proof that the troops in question had not been subordinated to General FOERTSCH, that he had no authority over them, that they were not responsible to him and that he had not issued any orders. Apart from his participation as an advisor, which has already been dealt with in detail in Part I, the question remains, whether FOERTSCH did not render himself liable to punishment by executing order or passing orders on to others, without having any authority himself. However, the Prosecution has not followed this trend of thought at all. The formulation of the introductory sentences in the counts of the indictment (Number 1, 7, 11, 14 of the indictment) reveals clearly that the authority of command of the defendants is the decisive factor and that they are to be called to account for the "execution" or "transmission" of orders only if these orders were actually carried out by troops subordinated to them. The indictments and verdicts in other trials before the Nuernberg Military Tribunals show again and again that the responsible persons in the leading positions are to be prosecuted and also in our case General TAYLOR emphasized in the opening statement that the men in the dock were "commanders of high rank" who are being held responsible for crimes and who would have to be acquitted if their responsibility could not be proved fairly. (German transcript page 11).
From this it must be inferred that a mere "transmission" of orders which was more of an office procedure - with the transmitter having no authority of command over the parties receiving orders, cannot render General FOERTSCH responsible according to penal law. The Prosecution's conception of the "execution" of orders is not absolutely clear, because after all, they could in part only be carried out by the subordinated troops - for instance neither the Commander in Chief nor the Chief of Staff themselves shot hostages.
Probably the routine treatment of the OMW orders or demands made by the Commanders in Chief and their formulation into orders for subordinates is meant. This activity however if considered from the same point of view as General TAYLOR's - cannot be judged, in respect of "responsibility", in any other way than as a transmission of orders which were already drawn up. Also in this case FOERTSCH, by participating in the formulation of the orders, could only be responsible for an order, that is, for expressing his will, if the order was given to troops which were subordinated to him. That, however, was never the case.
Thus the formulation and the general tendency of the indictment reveals that in the case of General FOERTSCH it starts from a false hypothesis if it considers him guilty of the alleged crimes included in the individual counts. It is false, because the Prosecution failed to recognize the basic problem in the case of FOERTSCH: his position as Chief of Staff.
If, in spite of that, I now discuss in detail the individual counts and therefore also the documents presented against FOERTSCH, I do so, because it is my duty as defense counsel to take those precautionary measures under all circumstances. At the same time this scrutiny of the documents concerning FOERTSCH gives me the opportunity of illustrating on the basis of just this material, that my previous arguments pertaining to General FOERTSCH's responsibility as Chief of Staff are also confirmed by the given facts as revealed in the Prosecution documents.
Now, if the Tribunal please, I shall only present a few of the documents contained in Part II of my final plea. I choose those to which the Prosecution has in particular referred, in their closing statement. And I should be obliged if the Tribunal would give judicial notice to the balance of Part II which I have so far omitted.
I will continue reading on page 80:
(8) b) 1. Exh. 19, Doc. Book I, page 49 German, page 68 English.
This document contains a report dated 16 July 1941 made by Corps Headquarters LXV to the Wehrmacht Commander South East, on the attack on General LONTSCHER's automobile. This report bears FOERTSCH's handwritten annotation, written on 19 July 1941 "What counter measures? Why no hostages in Valjevo?"
The fact that the annotation bears the form of a question shows that it was a request for information, and that consequently it is not an order.
This inquiry was addressed to the competent I c expert in his own staff, as General FOERTSCH stated in his examination on 10 October 1947. The purpose of the inquiry, was explained by FOERTSCH in the same protocol on the same page. It was to be expected that the Wehrmacht High Command would not be satisfied with a mere notification of the attack, especially as the object of the attempt was a high-ranking officer, and that they would immediately make inquiries. It was therefore necessary to clear up everything as far as possible prior to the dispatch of the notification.
However, this annotation was not the cause for the reprisals actually executed in connection with this attack. So much FOERTSCH clarified in his statement of 10 October 1947. I refer in this connection to the protocol pages 40,58/59 German, pages 4132/33 English. According to an entry in operational report No. 1 by the 704th infantry division, contained in document exh. 23,52 Communists had already been shot by Serbian gendarmes on 20 July 1941 by order of Military Administration Headquarters 816 Uzice as a reprisal for the reported attack.
Considering the time which elapsed between the dispatch of the report on the attack, and its arrival and subsequent submission to the armed forces Commander South East - all of which can be seen from document exh. 19 - it is impossible that the inquiry, addressed to the Staff I c, concerning this report, could have been instrumental in the issuance of the order which Military Administration Headquarters Uzice gave on 20 July and which had already been executed at that time.
Up to the time when Military Administration Headquarters actually gave the order, the latter could not possibly have known of such an inquiry, even if it is assumed that the I c attached to the Staff of the 12th Army should have passed the inquiry addressed to him to subordinate offices.
I shall continue reading on page 84, toward the bottom of the page. I am now talking about Exhibit 100B 27; that deals with the Skela incident.
(9) b) 10. Exhibit 100b 27, Document NOKW 1637, Doc, Book III.
This document contains among others an excerpt from the record of an interrogation of Oberregierungsrat KIESSEL before the Yugoslav "commission for the Ascertainment of Crimes of the Occupational Organs and Their Accomplices" in connection with the Skela-case.
The relevant statement of the witness KIESSEL, contained in this record, reads as follows:
I shall omit the quotation which you know, and continue after the end of the quotation.
The statement of witness KIESSEL copied above from the excerpt of the record has no probative value whatever. KIESSEL was not interrogated as a witness, but evidently as a defendant in an investigation procedure which was also directed against himself. Consequently he has neither corroborated his statement by oath nor by an affidavit.
Inasmuch as this statement deals with the exercision of influences on the part of the Chief of the General Staff of the Wehrmacht Command South East it must be pointed out that KIESSEL did not base his report on personal experience, but only on hearsay. I have emphasized the pertinent remark in the above reproduction by underlining it.
This part of KIESSEL's statement clearly shows that he is merely repeating something which GRAVENHORST allegedly told him.
This statement which the witness attributes to GRAVENHORST - and if it really was made - did not correspond to the actual facts in any one case.
This is revealed as follows: The Armed forces Commander South East was informed of the attack in Skela through the daily report of the Commander of Serbia, dated 15 August 1941. The text of this daily report reads Exh. No. 127, Doc, Book V, page 37 German, page 33 English.
"Teletype HDVL. No. 7688 15 August 14.45 DSZ To: Wehrmacht Commander South East (12 Army 1c/AO Daily Report:
1.) On 14 August 1650 hours, bandits shot with machine guns at a passenger car of the 3rd Reserve Police Battalion 64 (Passengers: 1st lieutenant EHRMANN, 3 sergeants) near Skela (15 kilometers West of Obrenovac) on their way to Sebac. A patrol found the burned-out passenger car. A company of the police battalion sent from Belgrade found the corpses of 1st Lieutenant EHRMANN and 1 sergeant in the Save, two sergeants wEre missing. On 15 August Skela will be burned down and 50 Communists from Belgrade will be hanged there."
THE PRESIDENT: We will take our morning recess at this time.
(A recess was taken.)
THE MARSHAL: Persons in the Court will please find their seats.
The Tribunal is again in session.
DR. RAUSCHENBACH: I shall continue on page 86, the last paragraph, after the end of the quotation:
"The report shows that when the assault was reported, the order for reprisal action which had already been issued, was specifically mentioned at the same time. Therefore it is impossible that the Wehrmacht-Commander Southeast exercised any influence on the issuance of this order through General Foertsch as Chief of the General Staff, for he only heard of this assault after the order for reprisals had already been given. In this connection, I furthermore refer to General Foertsch's statement in the record dated 13 October 1947.
"According to that, one must arrive at the conclusion that the reprisal measures which were taken in Skela had not been ordered by the Wehrmacht Commander Southeast. Therefore it is out of the question that General Foertsch as Chief of Staff can be held responsible as an advisor when such an order was issued."
I shall continue on page 123, in the middle of the page, (c), "Commando Troops."
Your Honors, my statement about the Commando Order extend to about ten pages which I shall also omit. These are a number of quotations. The whole problem is very complicated and will probably become clearer when you read it slowly. I would just like to refer to the importance of the paragraph because there is no high commander in the dock who could have commented on this order, and, since I gained the impression from the trial that the conduct of General Foertsch, just from this point of view, has to be examined very thoroughly.
This shows that the Commando Order was never carried out in the way in which it was issued, namely, by slaughtering the prisoners. The viewpoints which seem to show that it might have been carried out later come from a time during which General Foertsch was no longer in the Southeast.
As far as the Commando Troops are concerned, other orders had already been issued which had broken the connection in the causal effect between this and the later orders.
I continue on page 145, "Part III: Legal Questions and Final Statement."
"As regards the special legal problems of this trial-hostages, reprisals, unlawfulness of aggressive war, plea of acting on superior order - I refer to the argumentation of my colleague Dr. LATERNSER. By the following statement I only wish to supplement them in regard to several legal questions which appear to me to be relevant, as they have some bearing on the case of General FOERTSCH under an aspect other than that discussed previously. I will refrain from questioning the competence of this Tribunal, because all that was necessary in this connection has been dealt with by DR. LATERNSER as well. As a precaution, I raise objection against the jurisdiction of this Tribunal in the case of the defendant FOERTSCH as well."
Then, I shall continue on Page 151, (2) at the top:
"The unclear definition of 'facts' of Control Council Law No. 10. In particular, provisions concerning parties in crime."
I do not want to repeat here those objections to Control Council Law No. 10 which have been put forward by the Defense in all Nuernberg trials. But I deem it necessary to examine this law from the point of view of an exact establishment of guilt in criminal cases.
The definition of the facts of Article II, paragraph 1, is worded in rather general terms. The paragraphs b) and c), pertaining to our trial, partly mention criminal offenses which are included already in all criminal codes, as for example murder, deprivation of liberty and destruction. In part, however, they also include concepts which so far have not yet been mentioned in any criminal law, or which, though related to a certain crime, expand its definition in such a general way as to make the limits of what is punishable no longer recognizable. These concepts include, for example, "plundering", which in itself includes the crime of theft but which can also be interpreted far more comprehensively, for instance, by including all acts preceding and following theft, even if they do not fall into the category of any of the criminal laws hitherto in force.
"Persecution for political, racial or religious reasons" also was thus far not to be found in any criminal code. In the case of other crimes, as e.g. the "killing of hostages", Control Council Law No. 10 alone does not give any indication as to punishableness, but makes it necessary, by taking recourse to other provisions of international law - particularly to Martial Law -, to first establish the requisites under which the killing of hostages constitutes a crime.
The vagueness of the definitions of those participating in crime as specified in Article II, paragraphs 2 under c) to f) appears to me particularly serious, however. According to them, that person is considered guilty of a crime pursuant to Article II, subsection 1, who
c) took a consenting part therein or
d) was connected with plans or enterprises involving its commission or
e) was a member of any organization or group connected with the commission of any such crime or
f) with reference to paragraph la), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held a high position in the financial, industrial or economic life of any such country.
It is difficult particularly for the German lawyer to make himself familiar with the forms of participants in crime as mentioned above. The German criminal jurisdiction, and in accordance with it probably, the entire continental penal law, - systems provide only for: principal accomplice, instigator, and in certain cases as an independent offender, the abettor. These are the definitions of participation in crimes as under 2 a) and b) of Article II. At any rate a) and b) presuppose the commission of a crime in which some-one by his own activities, or negligence counter to his duty, constituted an indispensable cause (conditio sine qua non) for the success of the crime, and this knowingly.