 |
in the case of the defendant von Schirach,¹ has made no
indication to this effect, dealing in the case of von Schirach with crimes
against humanity only, consisting of a participation in acts of deportation. It
is true that von Schirach was not charged with war crimes by the prosecution.
In the case of Austria, however, the defense is convinced that the prosecution
in the IMT case, who undoubtedly had very carefully considered its indictment,
abstained for good reasons from charging the defendant von Schirach with having
committed war crimes in Austria. There can be no doubt that the Austrian
population could not be considered an enemy population at that time. The
existence of an enemy population is, however, an essential feature of a war
crime.
As to Czechoslovakia, the prosecution quotes the following
passage from the IMT judgment: |
| |
"The occupation of Bohemia and
Moravia must * * * be considered a military occupation covered by the rules of
warfare."² |
This passage clearly pertains to Bohemia and Moravia only, and not
to Sudeten-Czechoslovakia, for the obvious reason that the occupation of
Sudeten-Czechoslovakia was covered by the Munich Pact. If the prosecution on
page 6 of its Preliminary Memorandum Brief maintains that no German citizens
can derive any rights or privileges therefrom because Hitler never intended to
adhere to the Munich Agreement, they overlook that at the time when the
Aussig-Falkenau negotiations were completed — namely before the occupation
of Bohemia and Moravia — the defendants could not have had any knowledge
of such intentions of Hitler and therefore were not aware of the fact that they
acted in a country which was occupied on the basis of an international
agreement, the violation of which was aimed at by one partner thereto. No
evidence of such knowledge on the part of the defendants has been presented by
the prosecution, and therefore the prosecution has not offered proof of a
guilty mind on the part of the defendants, to wit: of any knowledge that they
were violating the laws and usages of war.
Aussig-Falkenau being
situated at that time in Sudeten-Czechoslovakia, and no acts of spoliation
being charged with regard to the territory of Bohemia and Moravia, the
prosecution consequently has not established a war crime in the Aussig-Falkenau
case.
Apart from all this, a prima-facie case of a punishable
offense in Austria and Sudeten-Czechoslovakia has not been
established |
__________
¹ Ibid., p.
318.
² Ibid., p.
334.
493 |
. 
