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evidence before the beginning of the presentation by the defense. And
I am thinking in this case of an interrogation of Field Marshal von Brauchitsch
who is at the present moment in British custody.
(6) It is, however,
particularly important that counsel for the defense have so far not been able
to gain access to documents which are in Washington.
Access to this
material was requested as early as the first session of the Tribunal. The
motion to recess for 3 weeks was at that time refused with the comment that the
defense would be given sufficient time to prepare its case. I put on record
that the defense had to start their case without having been able, like the
prosecution, to avail themselves of the most important sources of evidence.
Thus, the defense, at the beginning of its presentation in proceedings of such
historical importance, is confronted with the fact that it cannot fulfill its
task completely. The defense doubts that it will have a fair chance.
Your Honor, this brings me to the end of my opening statement.
|
| |
C. Extract from the Opening Statement
for Defendant
Hoth* |
| |
| * * *
* * *
* * * * |
| |
| DR. MUELLER-TORGOW : Control Council Law No. 10, which will be
analyzed by competent authorities, used the terms, “crimes against
peace,” and, “aggressive wars.” Both these terms represent
something entirely novel. The Kellogg Pact does not know these terms either.
International law does not even contain a generally accepted formula for the
concept of “war,” and its “provisions refrain from any form of
ethic evaluation of the fact whether or not there exists a right to wage war in
the individual case. They merely provide regulations for the conduct of acts of
war if this war has become a fact on the strength of political decisions.”
(Giese: “Deutsches Kriegsfuehrungsrecht”, p. 2.) Therefore,
Control Council Law No. 10 is not in a position to introduce these concepts
with retroactive legal effect concerning events which occurred in the past. To
this day there does not exist any principle of International Law which would
impose retroactive punishment on the facts of count one of the indictment. The
“war crimes,” and, “crimes against humanity,” which General
Hoth allegedly committed against combatants, prisoners of war, and civilians as
claimed by counts two and three of the indictment pertain exclusively to the
Russian campaign. |
| |
* Complete opening statement is recorded
in mimeographed transcript, 29 April 1948, pp. 3019-3035.
195 |
. 
