involved in this execution, he related how he divided his unit into shooting squads of 30 men each. Then, the mass graves were prepared -
"Out of the total number of the persons designated for the execution, 15 men were led in each case to the brink of the mass grave where they had to kneel down, their faces turned toward the grave.
At that time, clothes and valuables were not yet collected.
Later on this was changed.....
"When the men were ready for the execution one of my leaders who was in charge of this execution squad gave the order to shoot.
Since they were kneeling on the brink of the mass grave, the victims fell, as a rule, at once into the mass grave.
"I have always used rather large execution squads, since I declined to use men who were specialists for shots in the neck (Genickschusspezialisten). Each squad shot for about one hour and was then re placed.
The persons which still had to be shot were assembled near the place of the execution, and were guarded by members of those squads, which at that moment did not take part in the executions."
In some instances, the slain persons did not fall into the graves, and the executioners were then compelled to exert themselves to complete the job of internment. A method, however, was found to avoid this additional exertion by simply having the victims enter the ditch or grave while still alive. An SS eye-witness explained this procedure:
"The people were executed by a shot in the neck.
The corpses were buried in a large tank ditch.
The candidates for execution were already standing or kneeling in the ditch.
One group had scarcely been shot before the next came and laid themselves on the corpses there."
The defendant Biberstein also verified this with his statement:
"The shootings took place in a sand pit, in which the bodies afterwards were buried."
The defendant Ott, who stated his kommando conducted 80 to 100 executions, told of one winter execution where the corpses were temporarily buried in the snow.
Court No. II, Case No. IX.
The business of executions was apparently a very efficient business-like procedure, illustrated by Report No. 24, dated 16 July 1941, which succinctly stated:
"The arrested Jewish men are shot without ceremony and interred in already prepared graves, the EK 1b having shot 1,150 Jews at Duenaburg up to now."
Some of the kommando leaders, however, were a little more ceremonious. These executioners called off the names of the victims before they were loaded on to the truck which was to take them to their death. This was their whole judicial trial -- the indictment, the evidence, and the sentence -- a roll call of death.
There were different techniques in execution. There were Einsatz commanders who lined up their victims kneeling or standing on the edge of the grave, facing the grave, others who had the executees stand with their backs to the grave, and still others, as indicated, who had their victims stand in the grave itself. One defendant described how the victims lined up at the edge of the ditch and, as they fell, another row stepped into position so that, file after file, the bodies dropped into the pit on to the bleeding corpses beneath.
Hardly ever was a doctor present at the executions. The responsibility of the squad leader to make certain the victims were dead before burying them was simply discharged by a glance to determine whether the bullet-ridden bodies moved or not. Since in most cases the huddled and contorted bodies were strewn and piled in a trench at least six feet deep, only one more horror is added in contemplating the inadequacy of an inspection made from the rim of a ditch as to whether life in the dark ground below was extinct or not.
In fact, one defendant did not exclude the possibility that an executee could only seem to be dead because of shock or temporary unconsciousness. In such case it was inevitable he would be buried alive.
Court No. II, Case No. IX.
The defendant Blobel testified that his firing squad always aimed at the heads of the victims. If, he explains, the victim was not hit, then one member of the firing squad approached with his rifle to a distance of three paces and shot again. The scene of the victim watching the head-hunter approaching with his rifle and shooting at him at three paces represents a horror for which there is no language.
Some kommando leaders, as we have seen, made their victims lie down on the ground, and they were shot in the back of the neck. But, whatever the method, it was always considered honorable, it was always done in a humane and military manner. Defendant after defendant emphasized before the Tribunal that the requirements of militariness and humaneness were meticulously met in all executions. Of course, occasionally, as one defendant described it, "the manner in which the executions were carried out caused excitement and disobedience among the victims, so that the kommandos were forced to restore order by means of violence", that is to say, the victims were beaten. Undoubtedly always, of course, in a humane and military manner.
Only rarely, however, did the victims react to their fate. Commenting on this phase of the executions, one defendant related how some victims, destined to be shot in the back, turned around and bravely faced their executioners but said nothing. Almost invariably they went to their end silently, and some of the defendants commented on this. The silence of the doomed was mysterious, it was frightening. What did the executioners expect the victims to say? Who could find the words to speak to this unspeakable assault on humanity, this monstrous violence upon the dignity of life and being? They were silent. There was nothing to say.
It was apparently a standing order that executions should not be performed publicly, but should always take place far removed from the centers of population. A wooded area was usually selected Court No. II, Case No. IX.
for this grim business. Sometimes these rules were not observed. Document NOKW-641 relates an execution which took place near houses whose occupants became unwilling witnesses to the macabre scene. The narrative states:
"A heavy supply traffic for the soldiers was also going on in the main street, as well as traffic of evacuated civilians.
All events could be followed from the window of the battalion's office, the moaning of the people to be shot could be heard, too.
The following morning, a lot of clothing was lying about the place concerned and surrounded by in quisitive civilians and soldiers.
An order to destroy the clothing was given immediately."
The business man, Friedrich Graebe, already quoted before, has left a moving account of a mass execution witnessed by him in October 1942 near Dubno, an account which because of its authoritative description deserves recording in its entirety in this Opinion:
"Moennikes and I went direct to the pits.
Nobody bothered us. Now I heard rifle shots in quick succession, from behind one of the earth mounds.
The people who had got off the trucks -- men, women and children of all ages -- had to undress upon the orders of an SS-man, who carried a riding or dog whip.
"They had to put down their clothes in fixed places, sorted according to shoes, top clothing and underclothing.
I saw a heap of shoes of about 800 to 1,000 pairs, great piles of underlinen and clothing.
Without screaming or weeping these people undressed, stood around in family groups, kissed each other, said farewells and waited for a sign from another SS-man, who stood near the pit, also with a whip in his hand.
"During the 15 minutes that I stood near the pit I heard no complaint or plea for mercy.
I watched a family of about 8 persons, a man and woman, both about 50 with their children of about 1, 8 and 10, and two grown up daughters of about 20 to 24.
An old woman with snow-white hair was holding the one year old child in her arms and singing to it, and tickling it.
The child was cooing with delight.
The couple were looking on with tears in their eyes.
The father was holding the hand of a boy about 10 years old and speaking to him softly; the boy was fighting his tears.
The father pointed toward the sky, stroked his head, and seemed to explain some thing to him.
At that moment the SS-man at the pit shouted something to his comrade.
The latter counted off about 20 persons and instructed them to go behind the earth mound.
Among them was the family which I have mentioned.
"I well remember a girl, slim and with black hair, who, as she passed close to me, pointed to herself and said '23'. I walked around the mound and found myself con fronted by a tremendous grave.
People were closely wedged together and lying on top of each other so that only their heads were visible.
Nearly all had blood running over their shoulders from their heads.
Some of the people shot were still moving.
Some were lifting their arms and turning their heads to show that they were still alive.
The pit was already 2/3 full. I estimated that it already contained about 1,000 people.
I looked for the man who did the shooting. He was an SS man who sat at the edge of the narrow end of the pit, his feet dangling into the pit.
He had a tommy gun on his knees and was amoking a cigarette.
The people, completely naked, went down some steps which were cut in the clay wall of the pit end clambered over the heads of the people lying there, to the place to which the SS-men directed them.
They lay down in front of the dead or injured people; some caressed those who were still alive and spoke to them in a low voice.
Then I heard a series of shots.
"I looked into the pit and saw that the bodies were twitching or the heads lying already motionless on top of the bodies that lay before them.
Blood was running down their necks.
I was surprised that I was not ordered away, but I saw that there were two or three postmen in uniform nearby.
The next batch was approach ing already.
They went down into the pit, lined them selves up against the previous victims and were shot.
When I walked back, round the mound, I noticed another truckload of people which had just arrived.
This time it included sick and infirm persons.
An old, very thin woman with terribly thin legs was undressed by others who were already naked, while two people held her up.
The woman appeared to be paralyzed. The naked people carried the woman around the mound.
I left with Moennikes and drove in my car back to Dubno.
"On the morning of the next day, when I again visited the site, I saw about 30 naked people lying near the pit about 30 to 50 meters away from it.
Some of them were still alive; they looked straight in front of them with a fixed stare and seemed to notice neither the chilliness of the morning nor the workers of my firm who stood around.
A girl of about 20 spoke to me and asked me to give her clothes and help her escape.
At that moment we heard a fast car approach, and I noticed that it was an SS detail.
I moved away to my site.
Ten minutes later we heard shots from the vicinity of the pit.
The Jews still alive had been ordered to throw the corpses into the pit; = then they had them selves to lie down in this to be shot in the neck."
The tragecy of this scene is lost entirely on the executioner. He does his job as a job. So many persons are to be killed, just as a carpenter contemplates the construction of a shed. He must consider the material he has on hand, the possibilities of rain, etc. Only by psychologically adjusting oneself to such a state of affairs can one avoid a shock when one comes to a statement in a report very casually written, namely: "Until now, it was very difficult to carry out executions because of weather conditions."
A report from Einsatzgruppe A, discussing events which occurred in the winter of 1941-42, remarks:
"The Commander in White Russia is instructed to liquida te the Jewish question as soon as possible, despite the difficult situation.
However, a period of about 2 months is still required - according to the weather."
It is all this same type of studied indifference that causes another report-writer to chronicle simply: "Hostages are taken in each new place, and they are executed on the slightest reason."
One of the Einsatzgruppen leaders complains that only 96 Jews were executed at Grodno and Lida during the first days. He manifests his displeasure and declares: "I gave orders that considerable intensification was to take place there."
Judge Speight will continue with the reading of the judgment.
JUDGE SPEIGHT:Adolf Ruebe, a former SS-Hauptscharfuerher, declared in an affidavit that now and then there were executioners who devised original methods for killing their victims:
"On the occasion of an exhumation in Minsk, in Novem ber 1943, Obersturmfuehrer Heuser arrived with a kommando of Latvians.
They brought eight Jews, men and women, with them.
The Latvians guarded the Jews, while Harter and Heuser erected a funeral pyre with their own hands.
The Jews were bound, put on the pile alive, drenched with gasoline and burnt."
It was stated in the early part of this Opinion that women and children were to be executed with the men so that Jews, Gypsies and so-called asocials would be exterminated for all time. In this respect, the Einsatzgruppen leaders encountered a difficulty they had not anticipated. Many of the enlisted men were husbands and fathers, and they winced as they pulled their triggers on these helpless creatures who reminded them of their own wives and off-spring at home. In this emotional disturbance they often aimed badly and it was necessary for the kommando leaders to go about with a revolver or carbine, firing into the moaning and writhing forms. This was hard on the executioners, personnel experts reported to the RSHA in Berlin, and to relieve their emotional sensitivity, gas vans were sent to the rescue.
These strange vehicles carried spurious windows and curtains and otherwise externally resembled family trailers. Women and children were lured into them with the announcement that they were to be resettled and that they would meet their husbands and fathers in the new place. Once inside the truck, the doors automatically and hermetically closed, the driver stepped on the accelerator, and monoxide gas from the engine streamed in. By the time the van reached its destination, which was an anti-tank ditch outside the town, the occupants were dead. And here they joined their husbands and fathers who had been killed by rifles and carbines in the hands of the Einsatzkommandos.
As distressing as may be to the average person the mere thought image of these murder wagons, they were simply articles of equipment so far as the Einsatzgruppen were concerned. Communications went back and forth, correspondence was written about these vans with the casualness which might accompany a discussion on coal trucks. For instance, on May 16, 1942, SS-Untersturmfuehrer Dr. Becker, wrote SSObersturmbannfuehrer Rauff, pointing out that vans could not be driven in rainy weather because of the danger of skidding.
He, therefore, posed the question as to whether executions could not be accomplished with the vans in a stationary position. However, this suggestion offered a problem all its own. If the van was not actually set for mobility the victims would realize what was about to happen to them, and this, Becker said, must be avoided so far as possible. He thus recommended: "There is only one way left. To load them at the collecting point and to drive them to the spot". Becker then complained that members of the kommando should not be required to unload the corpses:
"I brought to the attention of the commanders of those S.K. concerned, the immense psychological injuries and damages to their health which that work can have for those men, even if not immediately, at least later on.
The men complained to me about headaches which appeared after each unloading."
Then with regard to the operation of the lethal device itself, Becker says:
"The application of gas usually is not undertaken correct ly.
In order to come to an end as fast as possible, the driver presses the accelerator to the fullest extent.
By doing that the persons to be executed suffer death from suffocation and not death by dozing off as was planned.
My directions have now proved that by correct adjustment of the levers death comes faster and the prisoners fall asleep peacefully."
On June 15, 1942, the commandant of the Security Police and Security Service Ostland wrote the RSHA in Berlin as follows:
"Subject: S-Vans A transport of Jews, which has to be treated in a special way, arrives weekly at the office of the commandant of the Security Police and the Security Service of White Ruthenia.
"The three S-vans which are there are not sufficient for that purpose.
I request assignment of another S-van (5 tons). At the same time I request the shipment of 20 gas hoses for the three S-vans on hand (2 Diamond, 1 Saurer), since the ones on hand are leady already".Ever efficient in discharging their homicidal duties, it appears that the Einsatz authorities now even set up a school in this new development of the fine art of genocide.
The defendant Biberstein, describing one of these ultra-modern executions, spoke of the driver Sackenreuter of Nuremberg "who had been most carefully instructed about the handling of the gas truck, having been through special training courses". Biberstein was satisfied that this method of killing was very efficient because the faces of the dead people were "in no way distorted"; death having come "without any outward signs of spasms". He added that no physician was present to certify that the people were dead because "this type of gas execution guaranteed certain death". Who it was that guaranteed this was not vouchsafed to history.
The murder-vans were constructed in Berlin and then, under their own power, driven to the field of action. The reports tell of two vans which travelled from Berlin to the Crimea. It would be interesting to know the thoughts of the drivers of these murder-cars as they rolled over half of Europe, through city and country, climbing mountains and penetrating plains, travelling 2,000 kilometers with their gaseous guillotines to kill helpless women and children. One of the drivers was none other than the chauffeur of the arch-murderer Reinhardt Heydrich.
One reads and reads these accounts of which here we can give only a few excerpts and yet there remains the instinct to disbelieve, to question, to doubt. There is less of a mental barrier in accepting the weirdest stories of supernatural phenomena, as, for instance, water running up hill and trees with roots reaching toward the sky, than in taking at face value these narratives which go beyond the frontiers of human cruelty and savagery. Only the fact that the reports from which we have quoted came from the pens of men within the accused organizations can the human mind be assured that all this actually happened. The reports and the statements of the defendants themselves verify what otherwise would be dismissed as the product of a disordered imagination. The record reveals that investigators and evidence analysts have checked and rechecked. Being human they sometimes doubted the correctness of the startling figures appearing in the reports.
Thus, when one of them came across the statement of Stahlecker that Einsatzgruppe A, of which he was chief, had killed 135,000 human beings in four months, the investigator questioned Otto Ohlendorf if this were possible. Ohlendorf read the statement in question and announced:
"I have seen the report of Stahlecker (Document L-180) concerning Einsatzgruppe A, in which Stahlecker asserts that his group killed 135,000 Jews and Communists in the first four months of the program.
I know Stahl ecker personally, and I am of the opinion that the document is authentic."
How can all this be explained? Even when Germany was retreating on all fronts, many troops sorely needed on the battlefield were diverted on this insane mission of extermination. In defiance of military and economic logic incalculable manpower was killed off, property of every description was destroyed - all remained unconsidered as against this insanity to genocide.
Here and there a protest was raised. The SS-Commissioner General for White Ruthenia objected to the executions in his district - not on the grounds of humanity, but because he believed the unbridled murder program was lowering the prestige of Germany.
"Above all, any act lowering the prestige of the German Reich and its organizations in the eyes of the White Ruthenian population should be avoided.
..
I am submitting this report in duplicate so that one copy may be forwarded to the Reich Minister.
Peace and order cannot be maintained in White Ruthenia with methods of that sort.
To bury seriously wounded people alive who worked their way out of their graves again, is such a base and filthy act that this incident as such should be reported to the Fuehrer and Reich Marshal.
The civil administration of White Ruthenia makes very strenuous efforts to win the population over to Germany in accordance with the instructions of the Fuehrer.
These efforts cannot be brought in harmony with the methods described herein."
The report referred to gave a graphic description of the extermination action. It told of the arrival of a Police Battalion with instructions to liquidate all Jews in the town of Sluzk within two days. The Commissioner for the Territory of Sluzk protested that the liquidation of all Jews, which naturally included the tradesmen, would shut down the economic life of that area.
He asked, at least, for postponement of the executions. The Lieutenant in charge of the battalion refused to wait. The report continues:
"For the rest, as regards the executions of the action, I must point out to my deepest regret that the latter bordered already on sadism.
The town itself offered a picture of horror during the action.
With indescribable brutality on the part of both the German police officers and particularly the Lithuanian partisans, the Jewish people, but also among them White Ruthenians, were taken out of their dwellings and herded together.
Everywhere in the town shots were heard, and in different streets the corpses of shot Jews accumulated.
... In conclusion I find myself obliged to point out that the police battalion has looted in an unheard of manner during the action, and that not only in Jewish houses but just the same in those of the White Ruthenians.
Anything of use such as boots, leather, cloth, gold and other valuables, has been taken away.
On the basis of statements of the members of the Armed Forces, watches were torn off the arms of Jews in public, on the street, and rings were pulled off the fingers in the most brutal manner.
"A major of the Finance Department reported that a Jewish girl was asked by the police to obtain immediately 5,000 rubels to have her father released.
This girl is said to have actually gone everywhere to obtain the money."
For a nation at war nothing can be more important than that ammunition reach the soldiers holding the fighting frontiers. Yet, many vehicles loaded with ammunition for the armed forces were left standing in the streets of Sluzk because the Jewish drivers, already illegally forced into this service, had been liquidated by the Execution Battalion. Although the very life of the nation depended on the continued operation of every type of food-producing establishment, 15 of the 26 specialists at a cannery were shot.
The blood bath of Sluzk brought about some interesting correspondence. The Commissioner General inquired of the Reich Minister of Occupied Eastern Territories if the liquidation of Jews in the East was to take place without regard to the economic interests of the Wehrmacht and specialists in the armament industry. The Reich Minister replied:
"Clarification of the Jewish question has most likely been achieved by now through verbal discussions.
Economic considerations should fundamentally remain unconsidered in the settlement of the problem."
AGerman inspector of armament in the Ukraine, after a thorough investigation into the Jewish Liquidation Program, reported to General of the Infantry, Thomas, Chief of the Industrial Armament Department, that the project was a big mistake from the German point of view. In the Ukraine he found that the Jews represented almost the entire trade and even a substantial part of the manpower.
"The elimination, therefore, necessarily had far reaching economic consequences and even direct consequences F O R T H E A R M A M E N T I N D U S T R Y (Production for sypplying the troops)."The report goes on:
"The attitude of the Jewish population was anxious obliging from the beginning.
They tried to avoid everything that might displease the German administra tion.
That they hated the German administration and army inwardly goes without saying and cannot be surprising.
However, there is no proof that Jewry as a whole or even to a greater part was implicated in acts of sabotage.
Surely, there were some terrorists or saboteurs among them just as among the Ukrainians.
But it cannot be said that the Jews as such represented a danger to the German armed forces.
The output produced by Jews who, of course, were prompted by nothing but the feeling of fear, was satisfactory to the troops and the German administration."
What made the program of extermination particularly satanic was that the executions invariably took place not during the stress and turmoil of fighting or defense action, but after the fighting had ceased:
"The Jewish population remained temporarily unmolested shortly after the fighting.
Only weeks sometimes months later, specially detached formations of the police executed a planned shooting of Jews.
... The way these actions which included men and old men, women and children of all ages were carried out was horrible.
The great masses executed make this action more gigantic than any similar measure taken so far in the Soviet Union.
So far about 150,000 to 200,000 Jews may have been executed in the part of the Ukraine belonging to the Reichskommissariat (RK); no consideration was given to the interests of economy."
In a final appeal to reason this German inspector cries out:
"If we shoot the Jews, let the prisoners of war perish, condemn considerable parts of the urban population to death by starvation and also lose a part of the farming population by hunger during the next year, the question remains unanswered:
W H O I N A L L T H E W O R L D I S T H E N S U P P O S E D T O P R O D U C E E C O N O M I C V A L U E S H E R E?" No one answered the question of the inspector; Nor did any one answer the question of Humanity as to why those oceans of blood and this burning of a continent.
Reason, with its partner Conscience, had been lost long ago in the jungle of Nazi greed and arrogance, and so Madness ruled, Hate marched, the sky reddened with the flames of destruction and the World wept - and still weeps.
T H E L A W JURISDICTION On August 27, 1928 Germany signed and later ratified the general treaty for the Renunciation of War, more generally known as the Kellogg-Eriand Pact, wherein sixty-eight nations agreed:
"Article I. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations to one another.
"Article II. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts or whatever nature or whatever origin they may be, which may arise among them, shall never be sought, except by pacific means."
In spite of this unequivocal universal condemnation of war, the fifth decade of the twentieth century witnessed a conflict at arms of global proportions which wrought such devastation on land and sea and so convulsed organized society that, for many decades yet to come, men, women and children in every land will feel and suffer its consequences.
On August 8, 1945, representatives of Great Britain, France, Russia and the United States met in London and entered into an agreement for the trial of war criminals ascertained to be such. Nineteen other nations expressed their adherence to this agreement.
On September 30, 1946, the International Military Tribunal, created by the London Agreement, after a trial which lasted ten months, rendered a decision which proclaimed that Germany had precipitated World War II and, by violating international commitments and obliga tions, had waged aggressive war.
The International Military Tribunal, in addition to rendering judgment against specific individuals, declared certain organizations, which were outstanding instruments of Nazism, to be criminal.
On December 20, 1945, the Allied Control Council, composed of representatives of the same four above-mentioned nations and constituting the highest legislative authority for Germany, enacted Law No. 10, concerning "Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity". This Tribunal came into being under the provisions of that Law, but while the Tribunal derives its existence from the authority indicated, its jurisdiction over the subject matter results from International Law valid long prior to World War II.
Defense Counsel have advanced various arguments on the law applicable to this case. In view of their representations and the gravity of the case itself, the various phases of the law will be discussed with more detail than perhaps ordinarily the situation might require.
Under International Law the defendants are entitled to a fair and impartial trial, which the Tribunal has endeavored throughout the long proceedings to guarantee to than in every way. The precept that every man is presumed innocent until proved guilty has held and holds true as to each and every defendant. The other equally sanctified rule that the Prosecution has the burden of proof and must prove the guilt of the accused beyond a reasonable doubt has been, and is, assured.
This trial opened on September 15, 1947, and the taking of evidence began on September 29. The Prosecution required but two days to present its case in chief because its evidence was entirely documentary. It introduced in all 253 documents. 136 days transpired in the presentation of evidence in behalf of the defendants, and they introduced, in addition to oral testimony, 731 documents. The trial itself was conducted in both English and German and was recorded steno graphically and in both languages.
The transcript of the oral testimony consists of more than 6,500 pages. An electric recording of all proceedings was also made. Copies of documents introduced by the Prosecution in evidence were served on the defendants in the German language.
The Judgment in this case will treat the several defendants separately in the latter part of the Opinion, but since many items of defense, especially in argumentation, are common to more than one of the defendants they will be discussed collectively to avoid repitition during the individual treatments. It is to be emphasized that the general discussion and collective description of acts or defenses of defendants need not apply to each and every defendant in the box. Any general reference will necessarily apply to a majority of them but that majority need not always consist of the same persons. As already stated, the individual treatments will appear at the end.
THE PRESIDENT:The Tribunal will now be in recess until 1:45.
(A recess was taken until 1345 hours.)
AFTERNOON SESSION (The Tribunal reconvened at 1345 hours.)
THE MARSHAL:The Tribunal is again in session.
THE PRESIDENT:Judge Dixon will continue with the reading of the Judgment.
JUDGE DIXON:
The arguments put forth by the defense may be grouped under four different headings and will be discussed in that order by the Tribunal: Jurisdiction, Self Defense and Necessity, Superior Orders and Non-Involvement.
The substantive provisions of Control Council Law No. 10 which are pertinent in this case, read as follows:
Art. II, 1. (b) War Crimes. Atrocities or of fenses against persons or property constituting violations of laws or customs of war, including but not limited to, murder, ill-treatment or deportation to slave labor or for anyother purpose, of civilian population from occupied territory, murder or ill-treatment of prisoners of war or persons on the seas,kill ing of hostages, plunder of public or private property, wanton destruc tion of cities, towns or Villages, or devastation not justified by military necessity.
(c) Crimes against Humanity.
Atrocities and offenses, including but not limited to murder, exter mination, enslavement, deportation, imprisonment, torture, rape or other inhumane acts committed against any civilian population, or persecutions on political, ra cial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
(d) Membership in categories of a criminal group or organization de clared criminal by the International Military Tribunal.
2. Any person without regard to nation ality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, ifhe was (a) a principle or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (in cluding General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country."
Control Council Law No. 10 was attacked by Defense Counsel at the beginning of the trial, at the end of the trial, and even after all evidence and documentation had been received and arguments closed. In a motion filed February 20, 1948, counsel renewed their representations that this law was inapplicable to the instant case because of the fact that Russia, on August 23, 1939. signed a secret treaty with Germany agreeing to a division of Poland. In the argument supporting their motion, Counsel do not dwell on the fact that in signing the agreement with in Russia, Germany naturally became a party to the very transaction involved. However, in spite of this very definite concurrence by Germany in Russia's acts, insofar as they arose out of the so called secret agreement, Defense Counsel submitted that Russia disqualified herself from membership in the Allied Control Council and that, therefore, any agreement reached with her as one of the signatory powers must necessarily be void. The argument is wholly lacking in merit.
The matter of responsibility for breach of the International Peace was fully considered and decided by the International Military Tribunal in its decision of September 30,1946:
" The Tribunal is fully satisfied by the evidence that the war initiated by Ger many against Poland on the 1st September 1939 was most plainly an aggressive war, which was to develop in due course into a war which embraced almost the whole world, and resulted in the commission of countless crimes, both against the laws and customs of war, and against humanity."
It was this monstrously selfish and evil aggression which precipiatated, as the International Military Tribunal pointed out, a global war whose effects are visible today throughout the world. The legal consequences drawn from the International Military Tribunal *** *** *** *** may not be altered by the assertion that someone else may also have been at fault.
At the final argument* in the case various Defense counsel spoke of international events which followed the ending of the war. It is intended as no offense to Defense Counsel to say that is would seem they are seeking to fish in troubled waters, or what they assume to be an agitated sea. Nonetheless, the Tribunal must refuse representations and arguments upon that subject. The defendants in this case stand accused of crimes which occured during the war. History's footsteps since the termination of World War II can not obliterate the blood marks of that collossal and tragic conflict.
While the Tribunal placed no limitations on the scope of Defense Counsel's representations, as in justice it should not, it does not follow that everything was relevant to the issue in the case. It is only by hearing an argument that one can conclusively determine its materiality or lack of materiality. However, the Tribunal now decides, after hearing and analyzing all the evidence, that discussions in this case on the ante-war relationship between Germany and Russia are Immaterial. It further decide* that representations on the post-war relationship Russia and the rest of the world are equally irrelevant.
Although advancing the proposition that Russia signed a secret treaty with Germany prior to the Polish war, the Defense said or presented nothing in the way of evidence to overcome the well considered conclusion of the International Military Tribunal that Germany started an aggressive war against Russia.
On the basis of this finding alone, Russia's participation in the Allied Council which formulated Law No. 10 was legal and correct and in entire accordance with International Law.
Furthermore, Defense Counsel's representations in this respect have no bearing on the charges in this Indictment. They are not defending Germany as a nation in this trial. They are representing individuals accused of specific crimes under Law No. 10, which, like the Charter of the International Military Tribunal, was not an arbitrary exercise of power of the victorious nations but the expression of Internation Law existing at the time of its creation. Control Council Law No. 10 is but the codification and systemization of already existing legal principles, rules and customs. Under the title of Crimes against Humanity, these rules and customs are the common heritage of civilized peoples, and, in so far as War Crimes are concerned, they have been recognized in various International Conventions, to which Germany was a party, and they have been International Law for decades if not centuries. As far back as 1631, Grotius, in his De Jure Belle ac Pacis, wrote:
"But.....far must we be from admitting the conceit of some, that the Obligation of all Right ceases in war; nor when under taken ought it to be carried on beyond the Bounds of Justice and Fidelity."
The German author Schaetzel, in his book "Bestrafungen nach Kriegsgebrauch, published in 1920, stated:
".....The Laws and Customs of Warfare are law not because they are reproduced in the Field Manual but because they are International Law.
The Imperial Decree (of 1899) speaks ofpunishment 'in accord ance with the laws, the customs of war and special decrees of competent military authorities' (Art.
2). This shows clearly that the customs of war are recognized as a source of law.
They are binding on in dividuals by virtue of the Imperial Decree which orders the authorities administering justice to follow these rules.
"The customs of war are substantive penal law as good as the State's penal legislation."
Defense Counsel have particularly thrust at Control Council Law No. 10 with Latin maxim Nullem crimen sine lege, nulla peona sine lege. It is indeed fundamental in every system of civilized jurisprudence that no one may be punished for an act which was not prohibited at the time of its commission. But it must be understood that the "lex" referred to is not restricted to statutory law. Law does, in fact, come into being as the result of formal written enactment and thus we have codes, treaties, conventions, and the like, but it may also develop effectively through custom and usageand through the application of Common Law. The latter methods are no less binding than the former. The International Military Tribunal, in its decision of September 30, 1946, declared:
"International Law is not the product of an international legislature.
.....
This law is not static, but by con tinual adaptation follows the needs of a changing world."
Of course some fields of International Law have been codified to a substantial degree and one such subject is the law of Land Warfare which includes the Law of Belligerent Occupation because belligerent occupation is incidental to warfare. The Hague Regulations, for instance, represent such a codification. Article 46 of those Regulations provides with regard to invading and occupying armies that:
"Family honor and rights, the lives of persons and private property, as well as religious convictions, and practice must be respected."
This provision imposed obligations on Germany not only because Germany signed signed the Hague Convention on Land Warfare, but because it had become International Law binding on all nations.
But the jurisdiction of this Tribunal over the subject matter before it does not depend alone on this specific pronouncement of International Law. As already indicated, all nations have held themselves bound to the rules or laws of war which came into being through common recognition and acknowledgement.