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a. At the time the attempt was made by leading German Social
Democrats to divert the Communists from a line of action which, in its final
effect, could be useful only to Hitler, Vynogradoff, a trustee [Vertrauensmann]
of the Soviet Ambassador Chinchuk, declared to them in the Soviet Embassy that
Moscow desired Hitler, because only after him would Germany become Communistic.
b. The NSDAP was financially supported by Moscow before the
seizure of power in 1933.
c. The NSDAP continued to be permeated
by elements whose allegiance was to Moscow.
As regards the formal side,
I also take the liberty, as a precaution of pointing out that Article II
(e), of Military Government Ordinance No. 7 [pursuant to Control Council
Law No. 10], concerning constitution and competence of certain Military
Tribunals, dated 18 October 1946, does not preclude the plea made the day
before yesterday.
Article 11(e) of Ordinance No. 7 combines two
viewpoints, which, according to German criminal law, are, as a rule, dealt with
separately: the challenging of judges and the raising of interlocutory
objections.
I am raising the question whether the proceeding, in view
of the international history of origin of the norms determining punishment of
war criminals, is permissible at all. Doubt is therefore cast, not on the
merely technical and local competence of the Court as such, but the basic
question is posed as to whether the whole system of material and procedural
norms laid down for judging war criminals, especially in view of its origin,
can make any pretension to legal validity at all. Such a conclusion naturally
cannot be excluded by a provision such as is contained in Article II (e)
of Ordinance No. 7. To put it bluntly: a law that is materially or formally
void cannot escape scrutiny simply because it [the law itself] forbids it.
I present the following as to the issue itself. |
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The direct international basis of the prosecution of the German war
criminals is the so-called Moscow Declaration of 30 October 1943.
On
the basis of the provisions within the framework of the Moscow Declaration, the
London Agreement of the Four Great Powers was issued on 8 August 1945, after
conclusion of hostilities, as a result of which, constitution of a Tribunal for
passing judgment on such deeds was agreed on, for which a regionally
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