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submitted many documents for so-called “identification”
which were rejected as evidence or which the prosecution itself doubted as
being acceptable. Since we do not know what the Tribunal will decide in the
cases in which decision has been withheld, and since we also do not know if a
document accepted for “identification” will not actually be employed
as valid evidence in reaching judgment, our evidence to the contrary must cover
many pieces of evidence of the prosecution which, according to American law,
without any doubt were inadmissible. It is of not much assistance that we in
submitting our evidence can make use of evidentiary materials of that sort.
The second problem stemming from the legal nature of this Tribunal
which is of immediate importance in accepting evidence for the defense is
concerned with the problem of material law. The charges have been served
because of offenses against international law and against Control Council Law
No. 10. The American prosecution staff is obviously of the opinion that there
is no difference between international law in general and the legal
specifications of Control Council Law No. 10. In the opinion of the Legal
Division of OMGUS, Berlin, which presented the charges with regard to the
appeal against the judgment in the Milch Trial to the Supreme Court in
Washington, it is stated: |
| |
“Military Tribunal II is not
required to apply the law of the United States in the trial of petitioner, nor
even the law of nations as heretofore recognized by the courts in the United
States. As a court of occupied Germany it is required to apply the laws of the
quadripartite governing body for occupied Germany. The crimes specified in
Control Council Law No. 10 have their basis in international conventions, and
particularly in the charter annexed to the London Agreement of 8 August 1945,
as interpreted and applied by the International Military
Tribunal.” |
| If this Tribunal considers itself an occupational court and
considers itself bound by the conception which the Military Government has
concerning Control Council Law No. 10, then the criminal charges against which
we have to defend our clients have a different aspect than if they are judged
in accordance with international law in general. As far as I can see, Nuernberg
military tribunals in the past have avoided stating in their judgments their
decision on the basis of Control Council Law No. 10. I submit, for example, the
judgment of the Flick Case in which the Tribunal specifically refused to punish
acts which were not considered criminal according to international law in
general at the time of commission. I recall in this connection that this
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136 |
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