VIII. EVIDENCE AND ARGUMENTS ON IMPORTANT ASPECTS OF THE CASE

A. Applicability of Control Council Law No. 10 to Offenses Against Germans During the War

a. Introduction

Under count III of the indictment, "Crimes against Humanity", the prosecution alleged that the defendants had engaged in medical experiments "upon German civilians and nationals of other countries" and that the defendants had participated in executing "the so-called `euthanasia program' of the German Reich, in the course of which the defendants herein murdered hundreds of thousands of human beings, including German civilians, as well as civilians of other nations". [Emphasis added.] Insofar as these offenses involved German nationals, the defense argued that international law was not applicable. The defense argued that under the Charter annexed to the London Agreement, crimes against humanity within the meaning of the Charter do not exist unless offenses are committed "in the execution of, or in connection with, any crime within the jurisdiction of the Tribunal". Although the analogous provision of Control Council Law No. 10 does not include the words of limitation "in the execution of, or in connection with any crime within the jurisdiction of the Tribunal", the defense argued that Control Council Law No. 10 was only "an implementation law" of the London Agreement and Charter, and hence could not increase the scope of the offenses defined by the London Charter. Pointing to the section of the judgment of the International Military Tribunal entitled "The law relating to war crimes and crimes against humanity",¹ the defense noted that the IMT stated: "to constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal",² that is, crimes against peace or war crimes. Although the indictment in the Medical Case did not allege that crimes were committed against German nationals before the outbreak of the war on 1 September 1939, the defense further argued that any offenses against German nationals