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In the motion, which was supported in detail and submitted by most of
the defense counsel in this trial, for the rejection of counts one and five of
the indictment on the grounds that they have insufficient basis of fact,
opinions have already been expressed on the question of whether the defendants
in this case can be charged with the commission of a crime against peace. I
should merely like to supplement the motion as follows:
The provisions
of Article II 2(f) of the Control Council Law cover new ground not
appearing in the statutes of the IMT. According to the literal interpretation
of these provisions, every person who occupied a high political, public, or
military position in Germany, or who held an important post in the financial,
industrial, or commercial world, must of necessity be guilty of a war crime.
Obviously, the prosecution at Nuernberg did not represent this point of view;
otherwise, it would have been able to accuse every defendant, in each of the
cases tried, of a crime against peace, on the grounds of his official position.
Article II 2(f) thus requires a restrictive interpretation, a fact which
the prosecution in this trial does not fail to recognize. It is attempting,
however, to lay upon the defendant the responsibility for proving his
innocence, basing its conduct on the provisions of Article II 2(f) of
the Control Council Law. This line of action cannot be in accordance with the
spirit of these provisions, either; for how could the defendant bring proof of
a negative concept, of his lack, that is to say, of participation in crimes
against peace? In my opinion, the restriction is rendered absolutely necessary
by the fact that Article 11 2 defines the conception of the principal or
participant. Figure f thus defines a form of participation. Not every
person who held a certain office can be a participant in an offense simply by
virtue of having held this office, but only he who, holding this office,
collaborated in any way in criminal activities. This is not the case as far as
Dr. Buergin is concerned.
At the outset of my review of the
prosecution's evidence relating to Bitterfeld (all of which does not, however,
concern the defendant Dr. Buergin), I should like to state that Dr. Buergin
first became a member of the Vorstand of IG on 1 January 1938, and was, in
fact, only a deputy member until May 1938, from which time onwards he was a
regular member.
The defendant Buergin came to Bitterfeld in 1931 from
Rheinfelden (Baden), where he had been works manager. He was transferred there
within the framework of the great IG Konzern. From a position in which he had
been able to act independently, he was transferred to a far wider sphere of
activity, but to a Post in which he was dependent on the instructions of his
chief. |
313 |
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