 |
by the prosecution, even if contrary to the position of the defense
it should be assumed that the perpetration of war crimes was possible from a
legal point of view in these areas. Even in such a case the prosecution would
not have made its case because it has not offered any evidence on the knowledge
of the defendants that Austria and Sudeten-Czechoslovakia were "occupied
pursuant to a common plan of aggression,"¹ as the IMT styles it. Such
knowledge, however, would be an essential feature of guilt on the part of the
defendants, who can commit war crimes only if they know that they are violating
the rules of war, which presupposes the knowledge that such rules come into
force after all.
Summarizing, therefore, the position of the defense is
that the evidence offered by the prosecution in the cases of alleged spoliation
in Austria and Sudeten-Czechoslovakia does not bear out this specific charge
and therefore the defendants may apply already at the present moment for a
finding of not guilty.² |
| |
| |
3. ANSWER TO THE DEFENSE MOTION FOR A FINDING OF NOT
GUILTY ON
COUNT ONE AND COUNT FIVE AND ON
CHARGES IN COUNT TWO RELATING TO
AUSTRIA AND CZECHOSLOVAKIA³ |
| |
| The following answer is made to the motion of the defense of 17
December 1947 for a finding of not guilty on certain charges in the indictment.
This answer will be in two parts. The first will deal with the motion for a
finding of not guilty on counts one and five. The second will deal with the
motion for a finding of not guilty on the charges in count two under the
headings "Farben in Austria" and "Farben in Czechoslovakia." |
| |
| PART I |
| |
Answer to Motion For Finding of Not Guilty
on Count One
and Count Five |
| |
| 1. The motion of the defense for a finding of not guilty as to
counts one and five is predicated on the grounds that the pro- […visions]
|
__________
¹ Ibid., p.
318.
² The Tribunal by an
interlocutory ruling of 22 April 1948, in effect granted that part of this
motion which petitioned for a finding of not guilty with respect to the charge,
of spoliation, in Austria and Czechoslovakia (see. IV of the motion). This
ruling is reproduced below under section VIII B, vol. VIII, this series, "The
Dismissal of the Charges of Spoliation as to Austria and Czechoslovakia" This
ruling stated on its face only that it disposed of a general defense motion of
15 April 1948. However, the defense motion of 15 April 1948 referred to, and
partly incorporated, the above defense motion of 17 December 1947, insofar as
it related to the spoliation charges in Austria and Czechoslovakia. The
Tribunal did not pass upon the motion with respect to crimes against peace
until final judgment, when it found that all of the defendants were not guilty
under counts one and five.
² Official Record, Case 6, vol. 52, pp.
2999-3019.
494 |
. 
