. NMT05-T0023
Volume V · Page 23
| applying this ruling, it would be found that any such unrestricted interpretation would bring about a lessening of sovereignty for national states, and under the present constitution of international law, would establish a situation of legal insecurity. This state of affairs would not be confined to jeopardizing the existence of national states, but would even imperil the structure of human society altogether. This consideration in itself appears to be serious enough to demand a less sweeping classification of such persons who would be eligible to examine the equity of their government's laws from the point of view of international law. The great American legal expert and scholar, Benjamin N. Cardozo, in his publication "The Growth of the Law" (Eighth edition, 1946, p. 49) proposes how to draw the line "If there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralist." It will be left to legal findings and the continued development of international law to determine and specify those boundaries. However, one aspect appears to me certain: that the man in the street, the ordinary common man, will have to be excluded from this circle where only statesmen and leading personalities in public life should belong. And I believe that these broad limits will suffice to arrive at the conclusion that the defendants of the Lebensborn society do not come into the category of such persons who, because of their position, had this particular obligation which belongs to the sphere of international law. I am of opinion therefore, that the Lebensborn defendants have no such criminal responsibility, because they acted within the law which was binding for them, and which they were not bound to examine for its legality from the aspect of international law, irrespective of the fact whether this law violated international law or not. |
| * * * * * * * * * * |
| 5. VALIDITY OF CERTAIN
PROVISIONS OF THE HAGUE CONVENTION IN A SO-CALLED "TOTAL WAR" |
| EXTRACT FROM THE CLOSING
STATEMENT FOR DEFENDANT HOFMANN* |
| * * * * * * * * * * |
| Of the offenses enumerated in Control Council Law No. 10, only war crimes and crimes against humanity connected with the war are involved in this case. It is well known that "shavings fly when one is planing." This particularly applies to warfare. Where |
* Complete closing statement is recorded in mimeographed transcript, 17 February 1948, pp. 5077-5112.
