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with Germany, because only in such a case can the rules of warfare,
as laid down especially in Article 46, paragraph 2, Article 53, and Article 56
of the Hague Convention, on which the prosecution bases its charge, be
considered as having been violated.
In our opinion, there can be no
doubt that the omission of the act of spoliation in the enumeration of offenses
in Article II, paragraph 1(c), of Control Council Law No. 10, is no
casual one, as this paragraph follows immediately upon paragraph (b)
— war crimes — in which the offenses against property and spoliation
are expressly mentioned.
The defense cannot agree with the opinion of
the prosecution as expressed on page 11 of its Preliminary Memorandum Brief,
Part II, that the alleged acts of spoliation in Austria and
Sudeten-Czechoslovakia can be charged as crimes against humanity, because, as
the prosecution maintains, they were connected with persecution on political,
racial, or religious grounds.
The defense definitely cannot follow this
somewhat sophistical attempt of the prosecution to bring into play Article II,
paragraph 1(c), dealing with crimes against humanity. In the first place
it should be noted that the partners of IG in the Austrian and Czechoslovakian
dealings, which the prosecution styles as acts of spoliation, were legal
entities, namely joint stock companies. It appears, however, from the wording
of Article II, paragraph 1 (c), of Control Council Law No. 10 that the
offenses enumerated therein can be committed only against individual persons.
But apart from that the prosecution has not introduced any evidence bearing out
the fact that the transfer of shares or plants to IG in these cases constituted
in itself a persecution on political, racial, or religious grounds.
Therefore the defense maintains that, providing the facts are
established, the transactions in Austria and Sudeten-Czechoslovakia can be
charged as acts of spoliation from a legal point of view only if they
constitute war crimes in the meaning of the provisions of the Hague Convention.
The prosecution is well aware of the fact that the occupations of Austria and
Czechoslovakia were not aggressive wars and that therefore the
provisions of the Hague Convention, if understood according to their strict
wording, do not enter into such cases. The prosecution, however, by referring
to certain passages in the IMT judgment maintains, on pages 5 and 6 of its
Preliminary Memorandum Brief, Part II, that the IMT ruled nevertheless the
applications of the said Convention in both cases as they constituted acts of
aggression or military occupation.
In the case of Austria, the IMT, as
appears from the judgment |
492 |
. 
