But as in more recent times, the religious conceptions and obligations generally faded out, gradually the attitude toward the body which the deceased had left behind on earth changed into that of the corpse. It was regarded as a thing, which, according to natural law, was subject to rapid decomposition and which , until it had turned to dust was to be regarded as a thing. The respect and the honors shown to the dead body were intended only for the person of the deceased, who no longer lived and no longer existed. The strict religious and legal duties toward the body of the deceased were replaced by a general feeling of reverence. Reverence demanded that the deceased should be buried respectably. Reverence did, however, not prevent the body of the deceased from being destroyed by fire by turning it over to the crematorium and did not prevent it from being cut up by the knife of the anatomist. Of the old conceptions about the sanctity of the body, we the present generation, have solely retained the notion of desecration of dead bodies. This conception still seems to us impressive; yet it is void and vain and without significance because the religious and legal obligations toward the body no longer exist at present.
The judicial question which in our case is under discussion is this: Does there at present exist a crime of desecration of bodies or what other punishable act can otherwise be committed against the human corpse?
The deceased who has breathed his last, no longer has any rights, for the legal capacity of a man ends with his death. As already mentioned, the love of surviving relatives lasting beyond death and the respectful memory of his friends are attached to the mortal remains of a deceased person. He who violates the duties of reverence is exposed to reproof and contempt. However, for all reverence to be shown to the human body as a one time human being, it can no longer have any legal rights, the violation of which would be a crime in the judicial sense.
On the other hand, the human corpse is not a thing, just as little as a man in his lifetime has been a thing.
This leads to the following reflections, which I quote literally from a Swiss paper on "The Treatment of the Dead Human Body in Civil and Criminal Law." Author Carl Erwin Cramer from Zurich, published in Zurich in 1885.
"Due to the so entirely isolated position held by the dead human body , pursuant to its nature as an erstwhile human being and as a non-entity among the things of the free and unfree material world, it lacks the main characteristics which the still living legal person had (Such as life, freedom, honor, health, etc.), as well as those which follow, or could follow from the qualities of a thing, being considered somebody's property of changing hands, of being an asset."
Therefore, a violation of these qualities by illegal acts directed against the dead human body is impossible; thus attacks directed against the human corpse can never involve a violation of these legal rights; consequently no criminal acts applying to the violation of these legal rights, for instance, life , honor, freedom, property, can be committed against the human dead body.
In agreement with its nature the dead human body has only one destiny: To find its due final rest. Religion and customs of men gave it for the time prior to, and after its internment a sanctified position, rejecting everything profane. That the dead human body should be treated in conformity with this sanctified position is the will of its mourners as well as of the whole society and in nearly all countries, also that of the State. There is no other will or no other interest of society with regard to the human corpse. Acts offending the position of honor created for it by religion and custom are qualified as offenses against religion. Its object is the religious peace of the religious communities; in most modern times legislative acts it has been granted the status of a legal possession, i.e., it has been placed under the protection of criminal law.
To continue my contention -- within these wider limits of a violation of the peace of religious communities every act directed against the position of honor of the dead human body is especially qualified as a violation of the final peace of the dead this being the special objective of every offense against the dead human body. No other crime against the dead human body is possible, as every punishable activity directed against it can only affect this one and no other legal property, either directly or indirectly.
My ideas are confirmed by the legal history of the human corpses: Roman law, as well as general law, was only aware of a delictum sui generis, which could be committed against the earthly shell of man.
According to Cramer, this delictum sui generis of the Roman law was identical with the sepulcri violatio which was punished most severely. In general law the continuation of the validity of this crime was disputed: Some said that the sepulcri violatio was antiquated as general law, because of the complete change which had come about in common law and customs and that they were replaced by the ordinary rules about theft and damage to property. Other scientists said that the crime of the Roman sepulcri violatio was adopted in Germany unchanged in the idea behind it as well as in its facts. The Reich Penal Code which has been valid in Germany from 1871 up to the present time has adopted the idea that any actions against a dead body deprive it of the place of honor allotted to it by religion and custom and are therefore to be listed among religious offenses. The Reich Penal Code in the 11th paragraph, Article 166, deals with blasphemy and slandering of religious societies; Article 167 deals with disturbances caused to the religious services of those religious communities which are acknowledged by the States; Article 168 deals with the sepulCri violatio as follows.
I quote:
"Any unauthorized person who removes a corpse from the custody of an authorized person and any unauthorized person who destroys a grave or damages it, or he who defiles a grave, will be punished with imprisonment up to two years; loss of civil rights may also be decreed."
These regulations are supplemented in article 367, subparagraph 1 of the Reich Penal Code as follows:
"Whoever buries or removes a body without notifying the authorities or whoever removes parts of a corpse from the custody of the persons authorized thereto without being authorized to do so himself, will be fined up to 150 RM or taken into custody."
The Reich Penal Code, therefore, on principle, punishes only (1) the removal of a corpse, i.e., the theft of a dead body,(2) the violation of graves. After the dead body has been buried, that is, the body is interred, then the deceased has been put to everlasting rest by the religious ceremonies of his religious community, such as consecration, etc. Violation of the peace of the grave sanctioned by the blessing of the Church is a religious offense according to Article 168 of the Reich Penal Code. The dead body which is not consecrated in such a way is by no means protected against desecration or damage. Only the removal of the dead body from the custody of the persons thereto authorized is a punishable offense and to be punished for trespassing is he who, without knowledge of the authorities buries or removes a corpse, or, without proper authority removes part of a body from the custody of persons authorized to hold it. According to German law there can, therefore, be no question either of bodily damage to or actual theft of, or damage to or defiling of a dead body. The reason seems clear: The body from which life has departed is, according to our idea , no longer a personality or a human being, but it is also not a thing; it is the pathetic remains of a human being, doomed to de composition, the mortal and completely dead shell in which law has no further interest than that of preventing its being illegally removed by a third party or its being dismembered by an unauthorized person.
As far as the legislator is concerned the question of handling a corpse is a religious one. It is in order to safeguard the interests of religious authorities recognized and not those of the corpse, that violation of the peace of the grave is made a punishable offense, just as insult to a relgious community or disturbing of religious services is threatened with punishment in the articles of the Reich Penal Code which immediately precede it.
The legislator goes by no means so far as to adjust his own view to that of the authorized religious communities. For instance, although all the Christian churches still maintain that cremation of a dead body is unacceptable and sinful as it is contradictory to all Christian doctrines, the state legislators have decided to act according to more enlightened standards and to allow cremation of the dead; this would, undoubtedly, not have happened had the State itself not considered the dead human body a thing doomed to destruction and to be destroyed at the earli est possible moment.
What a change in the public attitude from ancient times, when desecration of the dead was a matter for capital punishment!
It is clear that the modern legislator considers the handling of a dead body to be a matter of private concern, i.e., the concern of the relatives of the deceased or of any persons authorized to keep the dead body in their custody. -- article 368 of the Reich Penal Code. -- Those persons will naturally have to comply with police regulations which have been issued in the interest of public order and hygiene in connection with the internment of the dead body. Otherwise, there is no objection to their doing whatever they please with the body; for instance, having it embalmed or cremated. They can sell the corpse or have it dismembered or exhibit it; they may treat the corpse shamefully or reverently, and so forth.
Binding - Handbook, Special Section, Volume I, Artide 45 - has sternly criticized this attitude of the law and points out that it does not even forbid anthropophy to the authorized, let alone trading in corpses.
Returning to our own case: Concerning the removal of gold teeth from the mouths of deceased persons, we can first state that: Removal of gold teeth and fillings is not punishable if done by persons authorized to keep the corpses in custody, -- Articles 168 and 367, subparagraph 1, Reich Penal Code. Entitled to keep corpses in custody are all those persons who do not take them over illegally, such as near relatives, hospital administrations, and the police.
In cases in which the state is responsible for the care of a person during his or her lifetime, this responsibility is extended also towards the dead body - the keeping of it and the arrangements for the burial. The state is responsible for the dead body of the soldier as well as for the corpse of the patient who has died in a public hospital and also for the corpse of the deceased prisoner (Professor von Blume "Questions of Posthumous Law" - in the Archive for Civilian Practice, 112, Vol. 1914, page 421). If the state is in such a way concerned with a dead body it has the duty to pay the burial charges but it has, naturally, also to be ceded all the rights over it which, under normal circumstances, would be reserved for the near relations. It cannot only decide upon the manner in which it is buried, but can also turn the body over to the anatomical institute which, in turn, can then also do as it pleases with it. As the state is in such a case the "person authorized to take custody of the body" - it can, undoubtedly, do with the corpse of the deceased prisoner what, otherwise, the family could have done with it: remove all the gold out of its mouth.
I shall skip the next page and continue on page 48.
The following objections will be raised: Despite everything I have said, the removal of dental gold in the case of the prisoners who died in the concentration camp will, on the basis of the sense of justice of all civilized people, be considered as robbery or violation of the dead and it will be claimed that such action completed the picture of the criminal system of the concentration camps and the absolute abolishment of all human rights.
In summary I would like to say this, against that: Whether someone dies as a king, or as a beggar, or as a concentration camp inmate, with his last breath his legal position and all his rights are extinguished. The corpse has no more rights of any sort but no one has any rights to the corpse either. The body, so to speak, from a legal point of view, floats between heaven and earth. There remains only a custody over the corpse and a right of custody over it. The person with the right of custody can, as observed, dispose of the corpse - even in a selfish manner; for example, the person with the right of custody may sell the corpse to an anatomical laboratory, or also to an embalmer, who may further use tho skull not only for scientific purposes but also as an article of decoration.
Previously, no one thought of seeing a crime against humanity in such a procedure. And who thinks of plundering or of any other crime if the corpse of a person who has been executed is not delivered to his survivors but is burned and the ashes are scattered to the four winds? Justice has already been sufficiently vindicated by the execution on the basis of the death sentence. The legality of this process lies in the fact that the state has the right of custody over the corpse of every prisoner and that as a result of this the state may dispose of the corpse as it wishes. As long as there is no internationally recognized, and internationally valid code for the handling of corpses of prisoners, even the removal of the dental gold from the mouth of a dead prisoner - even if it was a concentration camp prisoner - then it may not be punished as a crime either according to international law or according to national penal law.
May it please the tribunal, all of my arguments about the question as to whether the removal of the dental gold in the case of the victims of the mass murders in Auschwitz, Lublin, etc. The Prosecution has not been able to incriminate the defendant Pook of participation, or even of knowledge of, this action - with a single clear and distinct word. Not a single document, not a single witness's testimony has been suitable to arouse such a suspicion against the defendant Dr. Pook. On his part, the defendant has denied such a knowledge with complete credibility; he has said that the reports concerning dental gold which had been removed which went through his hands were always so few in number that a question of mass annihiliation never occurred to him; he has stated that the Reinhardt Action took place at a time when he was at the front with a division as directing dentist, and that it was already essentially completed when he entered the service in Amt D III in September 1943, and that the removal of dental gold in the case of the murdered prisoners was certainly kept no less a secret than the mass murder itself.
I believe that it could not seriously be maintained that the trouble was taken with reference to this dental gold to make detailed and superfluous reports to Amt XIV according to formula through channels, thus through the directing dentist Dr. Pook. It has now been proven by testimony of witnesses that the dental gold was always directly delivered by the administration of the camp to Welmer - deputized by the WVHA - and from thelatter to the Reichsbank. (See the affidavit of the former Administrative Director of Auschwitz, Burger, in my Document Book I, page 24.) Also by this it has been clearly proven that Pook never saw, or even heard, anything at all of this gold. I can, therefore, disregard legal arguments with reference to this dental gold.
4. Concerning the dental treatment of the prisoners in the Concentration Camps.
Against still another suspicion the defendant Dr. Pook must be defended - namely, the suspicion that he violated his obligations as supervisory dentist of the camp dentists in that he consented to, or even commanded, a negligent or inhumane or cruel treatment of the prisoners in the sphere of dentistry.
There would have been concrete grounds for such a suspicion of the assumption had been justified that Pook was an unscrupulous or a less capable dentist, or that he was deeply involved in the criminal SS ideology - such as believing that the prisoners were inferior people and, therefore, as patients they were to be treated accordingly. However, in this respect there are concrete grounds only in the opposite sense.
Besides his official service in Amt XIV, Dr. Pook built up and directed the large local dental station at Berlin. Besides his official service in Amt D III, he directed the large dental office at Oranienburg. In addition to this, he still carried on his own large private practice. From this, one can really not infer the suspicion that he was an incapable, or a bad dentist.
There was never an ideology for SS dentists. In particular, Dr. Pook would never have subscribed to such an ideology - as we have learned of him from personal witnesses. But there was never such an ideology in the dental central office for the Waffen-SS, in Amt XIV, Dental Service. From that office was never issued a special provision about the dental treatment of the prisoners. Not one single directive along this line came from that office. The office of a directing dentist in Amt D III was especially created to establish a supervisory, intermediary office for concentration camp dentists, The camp dentists had to report in detail every month about the personnel of the camp dental station, and about its work. Permission had to be granted for false teeth for the prisoners, not to injure the prisoners, but because such an affair would bring about great expenditure of material and thus incur expenses. This principle of prior permission for false teeth, naturally, also applied to the civilian sector of Germany when a sick insurance was supposed to pay the expenses for false teeth for the insured. It is amazing that Dr. Pook, during his activity, never refused such a request. Therefore, he could only have been reprimanded by his superiors for his all toogenerous attitude toward the dental patients. Requests for supply of material and drugs for the dental care of prisoners also went via Dr. Pook. Whoever in Germany hashad any wishes with regard to the care of his teeth during the years 1943 to 1945 knows how happy one could be if the dentist still had the material and drugs necessary for the best treatment of his patient. Then, again, it is amazing to hear that, up to the end of the war, more material and drugs were available to supply SS dentists, including those practicing in the concentration camp prisoner dental stations than in the so-called civilian sector. What is the crime for which Dr. Pook could be punished?
The witness Dr. Blachke has testified in his affidavit, Document Book I, page 1, that all SS dental stations and, therefore, also those in the prison camps, had the same equipment and were supplied with the same material; that the prison dental station Dachau, Buchenwald and Sachsenhausen, which he himself saw, had everything which is necessary to carry out a normal dental practice, and that, naturally, those dental stations established during the last period of the war often did have to operate according to orders.
Therefore, the dentist had to work harder; however, the treatment of the patients did not suffer.
The witness Dr. Reutter, who was camp dentist in Dachau during 1940 and 1941, stated the following on the witness stand before the Court, about the dental treatment of prisoners: All dental work on patients, no matter whether on prisoners or SS men, was carried out exclusively according to purely dental standards and, certainly, carried out according to the dentists, medical conscience. It was a matter of course for him to work technically unobjectionably on every patient without exception, whether he was a prisoner or a member of the SS - just as natural was it for him to treat every patient indiscriminately with the necessary dental consideration and readiness to help.
In the same vein the witness Dr. Abraham, local dentist in Buchenwald in 1944 to 1945, testified in his affidavit of 13 May 1947-
I shall skip a page, and continue-
THE PRESIDENT: Your time is up now. If there is something especially that you want to read, and it is not too long.-- How much more have you?
DR. RATZ: About ten minutes, your Honor. About ten minutes.
THE PRESIDENT: You have had your hour.
DR. RATZ: I shall come to my final paragraph, then.
THE PRESIDENT: All right.
DR. RATZ: As far as the rest is concerned, I will draw attention to the written part of my plea. I particularly refer to the lack of veracity of witness Dr. Reutter and I should like to say in conclusion:
May it please the Court, one of the prosecutors in the trial of the IMT declared in his final plea that that trial was nothing but a continuation of the war. I say these trials shall not serve as a continuation of the war, but serve the reorganization of the peace the organization of a new peace.
The trials are, so to speak, a seem between war and peace, and, as such, admittedly present a danger - the danger of political arguments. Political arguments have no place on the scale of justice. They are children of the war - while justice is the mother of peace.
As is well known, the Greek philosopher Plato failed, in his attempt to create a community which could exist before the criterion of the righteous. Human communities - that is, the sovereign states - have always claimed for themselves a special set of morals -- morals which are not determined, by the conception of humanity or law, but by the idea of enforcing interests and power. If thus the states, particularly in times of distress and war, act unscrupulously as far as one's own country is concerned, that is considered permissible always if considered from the point of view of reasons of state. That attitude certainly is not an invention of the Third Reich. If that attitude is not overcome, then there is no end to wars in sight. Therefore, I do not say: The institution of the concentration camps was a political measure, therefore its judgment does not fall under the jurisdiction of the goddess Justitia. But I do say: In judging the guilt of the defendants, their political background, must not be overlooked. They acted as officials and soldiers, and, by themselves, were not able to raise the policies of the Third Reich to the proper moral and intellectual level. Thus they can be charged only with those crimes which, after the deduction of all political factors, still constitute actual crimes.
In his essay, "On War" - the American philosopher Ralph Waldo Emerson seventy years ago stated the following:
"The last hour of the war will not be far off and the well of human blood will soon dry up, if the new generation will arrive at the conclusion that it is unworthy of them to settle down among the horrors of the past, and if it can produce the magnanimous courage of fearlessness and virtue, to adjust their thoughts and acts exclusively to the noble precepts of morality."
Emerson concludes his essay as follows:
"Not in this remote corner, not in venerable Europe, not under a thousand clear-cut standards, where every step forward means revolution, is this holy seed of peace sown in the field; not in this great America, which belongs to God and man, where we only recently have begun to clear the primeaval forest and to open the green earth to a flood of immigrants which stream from all countries where suppression and guilt rules; here, where not few -- nay, humanity can decide what shall happen here -let us deliberate: Whet shall rule on earth, war, or peace?"
May it please the tribunal, suppression and guilt has been created in this venerable Germany with its thousands of clear-cut standards. The great United States of America is appointed, to fulfill the general longing for the changing of so many deeply rooted improper conditions. A just verdict in this case certainly will represent a step forward towards peace also - i.e., a verdict which - and I would like to quote Emerson's words - has been arrived at with the magnanimous courage of fearlessness and virtue.
THE PRESIDENT: We will take just a few minutes now to give the interpreter a chance to rest his voice. Not more than ten minutes. Possibly less.
THE MARSHAL: The Tribunal will recess for about ten minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. KARL HAENSEL (for the defendant Georg Loerner): On the 5th of September I submitted a trial brief to the Tribunal in which I put forward legal arguments regarding the prerequisites of regarding membership in criminal groups duel red as criminal by the IMT. I tried to argue extensively that knowledge of criminal aims demanded by the judgment of IMT does not mean a belonging to or having to have knowledge of but that such knowledge must be transmitted into the momentum of will in order to be legally relevant. That's the will to collaborate in a criminal organization.
The problem of which is legal knowledge and relevant knowledge according to Law Number 10 is decisive at present, not only for many defendants in the trials in Nurnberg but also all those who, as members of the organization, will have to appear before other judges.
In my final plea submitted in writing I deal with points dealing with the Law Number 10 and which must supplement it. Furthermore, with regard to article II I have dealt with the complexes in which Georg Loerner has been accused of having participated. I am grateful for the consent of the Tribunal to read my arguments.
Now, I should like merely to come to a few viewpoints the discussion of which has become necessary due to pleas put forward before me. The problem has been discussed many times whether this High Tribunal when giving judgment should take German law into consideration, a parently due to the assumption that German law would lead to a more favorable judgment than the application of some other legal system. The danger was apparently that this High Tribunal might not be convinced of the necessity of the application of German Law.
As long as wars continue and as long as enemy territory is occupied by victorious troops, the victors have claimed the right to use their own military courts and military commissions, to use the American language, to try members of enemy states which have fallen into their hands because of war crimes, and to apply their own jurisdiction. I should like to draw your attention to the last arguments in the American Journal of international Law, Volume 41, Page 45, and literature which is quoted therein.
The Hague Convention for Land Warfare prescribes in Article 43 with regard to the exercising of legal authority by an occupying state that the land warfare laws should be observed. However, it is not convincingly contradicted that the law laid down in the London Statute of Control Council Law Number 10 in its sphere is trying to establish norms which are to drown the legal law of the countries concerned, doing away with all local legal conception which does not comply with its rulings. What I am saying now is said from a point of view which is not mine but which I am adopting in order to elucidate the problem.
The victorious powers since Yalta, Potsdam, and London have decided upon punishment of German war criminals by their courts on the basis of law derived from international law. They state that no objections on the basis of German Law should be permissible. The aggressive wars are to be dealt with on the basis of international law. If you adopt this point of view, then you may be inclined to decide upon the question of guilt not according to the picture which German legal science has with regard to collaboration, participation, intention, or realization of the criminal situation. Please understand me correctly. I am not arguing against this German point of view. I am merely trying to find a point of view comparable under international law in order to find a just judgment for German defendants; and I'm trying to give reasons for my conclusions, entirely on the basis of international law.
If Law Number 10 were to have one thousand paragraphs end if apart from special cases a general part were in existence, then the task of this High Tribunal would be confined to its application. Since, however, the law has only five articles, it is to be interpreted and supplemented, if not with the use of German, then with the use of international law.
The Chief Prosecutor, General Taylor, in his speech of 9 July has dealt with supplementation by means of using the many sources of law and the systems of every nation; but he has warned that when ascertaining penal responsibility one should not be caught up by the details of American or British interpretation of law, for instance, with regard to participation in a crime. In an eclectical method arising from various national penal codes and choosing various individual rulings, there is the objection that controversies are unavoidable. Law Number 10 has not been created by one nation on the basis of its legal code but is the outcome of an agreement which was concluded on the international level by four nations. It is impossible to supplement it by using systems which contradict themselves. There can only be a unanimous interpretation, and that is an interpretation as international law.
But up to now there isn't any general part to international law which can deal with participation or attempt. In international law there are only a few large principles. There is, therefore, no other way, when you are not to compare Law Number 10, using part norms from various national legal systems, but to interpret it from the point of view of international law alone, using recognized rules for this purpose.
Let me give you a few examples. 1. Minima no curat proba. International law due to its nature is a far-reaching and large-scale type of legal concept. Only such crimes are to come before its judges which are recognizable and the prosecution of which is necessary for the family of nations. The question put by the president to a colleague yesterday regarding punishing certain perpetrations must be answered is follows. From the point of view of international law such evidence does not lead to punishment at all. A German Reich court would consider it a case of fraud by stating that the removal of goods by a third for the purpose of acquisition can be defined as theft by the person in question. The decision of the Reich Court, Volume 12, Page 114. But this, of course, is not thought out from the point of view of international law. On this high level such a perpetration is quite irrelevant because of its minor importance.
Secondly, sovereignty. Everyone will sweep his own doorstep. A state has jurisdiction within its borders, and the only jurisdiction as long as it is not at war with its neighbors whereby was crimes become possible because of which neighboring states are bringing foreign nationals before its courts. Courts with an international task only have jurisdiction for such crimes as are connected with war, either due to space or due to time, and which infringe on the interests of foreign states. That is why Law Number 10 states that crimes committed by Germans against Germans or stateless persons should be left to German tribunals to judge. (Article 31 (d). This clear-cut separation is essential since international legislation is based on a completely different level than national jurisdiction.
The generosity of the international judge cannot be granted to a national judge. The international judge can judge only such crimes where international interests have been violated.
Applied to the case of Georg Learner, this means the question of labor allocation in concentration camps remains an internal German affair, not infringing upon international courts as long as no foreigners were used in concentration camps and as long as there were no violations of the laws of warfare. Until the beginning of the Russian campaign according to the evidence submitted to this Tribunal, this was not the case. There is one important argument which is in favor of this concept which to the best of my knowledge has not yet been called into any one of these proceedings; and that is the fact that the amicable relations between the United States of America and Germany continued until 1941. Surely, considering the large area involved and the clumsiness of the international apparatus due to these conditions, any violation of international law by one state can not produce a belligerent reaction of another state immediately. There is the international law for one's own protection; but a temporary nonintervention cannot allow the conclusion of agreement. A protest will have to take place first.
Let me draw your attention to Page 300 of Finnegan. It was only on the 25th of October 1941 that President Roosevelt protested the treatment of hostages on behalf of the United States and confessed to the principle that nobody could be punished for crimes committed by someone else. This was the first warning he issued. This announcement was repeated by him on 9 December 1941; on 21 August 1942; and several times later. Let me draw your attention to President Roosevelt's speeches, America and Germany, 1936 to 1945, various pages.
There is no objection from the point of view of international law if high tribunals of the United States deal with war crimes which were committed after the beginning of the war and in connection with the war and which can be proved as such; but it seems to me to be most dangerous for such tribunals to me to out punishments for crimes which were committed by Germans merely against Germans and within Germany's sovereign territory due to Germany's orders and without direct violation of American interests and before the first warning of the American President who only then claimed international jurisdiction for crimes which so far had not been subject to international prosecution.
In dubio pro reo. Of the few rules which have been recognized internationally, this is the most important one. "We commence our considerations with the basic rule that the defendant must be considered innocent," so it is said in Michael Musmanno's opinion in the Milch trial. According to Judge Phillips' statement, "The defendant has a claim to be considered innocent as long as guilt has not been proved beyond a reasonable doubt." It is part of the nature of international law that acts which have delayed effects are to be repaid and that the least doubt excludes their prosecution under international law. The rules of evidence and proceedings are subject to the severest measures. When examining the probative value of evidence, it must be taken into consideration that passion which arised during a war is bad for the proof. There is a margin of error in evidence which must be taken into consideration, and the judge must decide whether he has understood the arguments of a stranger.
The completely different attitude of the Americans and the Germans towards the state also must be mentioned in this connection.
Let me draw to your attention the excellent book written by Markel, American letters 1946. In the historic conscience of the American, this order follows: the individual, society, and the state, whereas the to the Continental European the state occupies the first position. Then follows society and much later the rights of the individual take their place, even the British only achieved a petition of rights in 1688, whereas in the state of Virginia on the 12 of June 1776 a bill of rights was resolved. The Germans were taught Luther's saying that everybody be subject to the jurisdiction of the state which has part of him whereas the Puritans taught that you must obey God more than man. The order from Above has a much more binding value to the German citizen than to the American where each individual examines the value of an order before God.