. NMT03-T1027
Volume III · Page 1027
| from many public officials the criminal plans
of the inner circle of aggressors. If we should adopt the view that by reason
of the fact that the war was a criminal war of aggression every act which would
have been legal in a defensive war was illegal in this one, we would be forced
to the conclusion that every soldier who marched under orders into occupied
territory or who fought in the homeland was a criminal and a murderer. The
rules of land warfare upon which the prosecution has relied would not be the
measure of conduct and the pronouncement of guilt in any case would become a
mere formality. In the opinion of the Tribunal the territory occupied and
annexed by Germany after September 1939 never became a part of Germany, but for
that conclusion we need not rest upon the doctrine that the invasion was a
crime against the peace. Such purported annexations in the course of
hostilities while armies are in the field are provisional only, and dependent
upon the final successful outcome of the war. If the war succeeds, no one
questions the validity of the annexation. If it fails, the attempt to annex
becomes abortive. In view of our clear duty to move with caution in the
recently charted field of international affairs, we conclude that the domestic
laws and judgments in Germany which limited free speech in the emergency of war
cannot be condemned as crimes against humanity merely by invoking the doctrine
of aggressive war. All of the laws to which we have referred could be and were
applied in a discriminatory manner and in the case of many, the Ministry of
Justice and the courts enforced them by arbitrary and brutal means, shocking to
the conscience of mankind and punishable here. We merely hold that under the
particular facts of this case we cannot convict any defendant merely because of
the fact, without more, that laws of the first four types were passed or
enforced. A different situation is presented when we consider the cases which fall within types 5, 6, and 7. |
| TREASON AND HIGH TREASON |
| We have expressed the opinion that the purported annexation of territory in the East which occurred in the course of war and while opposing armies were still in the field was invalid and that in point of law such territory never became a part of the Reich, but merely remained in German military control under belligerent occupancy. On 27 October 1939 the Polish Ambassador at Washington informed the Secretary of State that the German Reich had decreed the annexation of part of the territory of the Polish republic. In acknowledging the receipt of this information, Secretary Hull stated that he had "taken note of the Polish government's declaration that it considers this act as illegal and therefore |
