. NMT04-T0055
Volume IV · Page 55
| The so-called General Regulations of Law No. 10 |
| There is no criminal code which would
restrict itself merely to laying down the constituent elements of a
crime. On the contrary, every national penal code contains a great number
of regulations which determine the general conditions which make an act a
punishable offense, conditions which are fundamentally common to all crimes, be
this in the form of a definite decree, be it in the form of common law brought
into a system by decision of trial courts or by publications of members of the
legal profession. Into this group fall, among others, the regulations
pertaining to causality, intent, and negligence, attempt and preparatory acts,
perpetration itself, and mere participation, soundness of mind and age limit,
periods of limitation, further, which is of importance for the following, the
regulations concerning self-defense, including presumed self-defense
[Putativnotwehr] and the regulations concerning acts committed for the
protection of other persons in danger, including the cases where this danger is
only presumed. None of this applies to Law No. 10. Apart from instituting by implication the principle "nulla poena sine lege poenali praevia" to the negative, it merely contains regulations stipulating the non-limitation of certain acts, the legal irrelevance of the fact that the acts were committed by responsible officials and the instigating fact that the acts were committed upon orders. Other regulations which normally form part of the "General Regulations" of every penal code are not contained in the law. There can be no doubt (and on the occasion of actual cases the Military Tribunals themselves made statements to this effect) that the silence of Law No. 10 is not to be interpreted in such a way as if the reasons, circumstances, and conditions which make an act a punishable offense or exclude punishment should have no hearing. There is no question of that. Circumstances such as the regulations concerning soundness of mind, age limit as far as guilt is concerned, self-defense, and acts committed under the pressure of emergency, etc., regardless of whether they are ruled by written law or by common law, are simply indispensable. The question is merely which sources are to be drawn upon for the problems not settled by Law No. 10. If Law No. 10 were so-called special national law, it would be very simple to answer this question. One would only have to fall back on the general regulations of the Penal Code of that country which enacted this law, just as the so-called penal bylaws of the German law forego "General Regulations" of their own and refer to the corresponding general regulations of the German Penal Code. However, Law No. 10 is barred from the use of this pos- [...ibility] |
