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Volume III · Page 1026
| "Do those Draconic laws or the decisions
rendered under them constitute war crimes or crimes against humanity?"
Concerning the punishment of habitual criminals, we think the answer is clear. In many civilized states statutory provisions require the courts to impose sentences of life imprisonment upon proof of conviction of three or more felonies. We are unable to say in one breath that life imprisonment for habitual criminals is a salutary and reasonable punishment in America in peace times, but that the imposition of the death penalty was a crime against humanity in Germany when the nation was in the throes of war. The same considerations apply largely in the case of looting. Every nation recognizes the absolute necessity of more stringent enforcement of the criminal law in times of great emergency. Anyone who has seen the utter devastation of the great cities of Germany must realize that the safety of the civilian population demanded that the werewolves who roamed the streets of the burning cities, robbing the dead, and plundering the ruined homes should be severely punished. The same considerations apply, though in a lesser degree, to prosecutions to boarders and violators of war economy decrees. Questions of far greater difficulty are involved when we consider the cases involving punishment for undermining military efficiency. The limitations on freedom of speech which were imposed in the enforcement of these laws are revolting to our sense of justice. A court would have no hesitation in condemning them under any free constitution, including that of the Weimar republic, if the limitations were applied in time of peace; but even under the protection of the Constitution of the United States a citizen is not wholly free to attack the Government or to interfere with its military aims in time of war. In the face of a real and present danger, freedom of speech may be somewhat restricted even in America. Can we then say that in the throes of total war and in the presence of impending disaster those officials who enforced these savage laws in a last desperate effort to stave off defeat were guilty of crimes against humanity? It is persuasively urged that the fact that Germany was waging a criminal war of aggression colors all of these acts with the dye of criminality. To those who planned the war of aggression and who were charged with and were guilty of the crime against the peace as defined in the IMT Charter, this argument is conclusive, but these defendants are not charged with crimes against the peace nor has it been proven here that they knew that the war which they were supporting on the home front was based upon a criminal conspiracy or was per se a violation of international law. The lying propaganda of Hitler and Goebbels concealed even |
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