 |
| and the Charter issued pursuant. thereto and in order to establish a
uniform legal basis in Germany for the prosecution of war criminals and other
similar offenders, other than those dealt with by the International Military
Tribunal." In Article 1, the Moscow Declaration and the London Agreement are
made integral parts of the law. In keeping with the purpose thus expressed, we
have determined that Control Council Law No. 10 cannot be made the basis of a
determination of guilt for acts or conduct that would not have been criminal
under the law as it existed at the time of the rendition of the judgment by the
IMT in the case of United States of America vs Hermann Wilhelm Goering,
et al. That well-considered judgment is basic and persuasive precedent
as to all matters determined therein. In the IMT case, count two bears a marked
similarity to count one in this case. Count one of that case is similar to our
count five. Regarding these counts the IMT said: |
| |
“Count one charges the
common plan or conspiracy. Count two charges the planning and waging of war.
The same evidence has been introduced to support both counts. We shall
therefore discuss both counts together, as they are in substance the same.
“'But in the opinion of the Tribunal the conspiracy must be
clearly outlined in its criminal purpose. It must not be too far removed from
the time of decision and of action. The planning, to be criminal, must not rest
merely on the declarations of a party program, such as are found in the
twenty-five points of the Nazi Party, announced in 1920, or the political
affirmations expressed in ‘Mein Kampf’ in later years. The Tribunal
must examine whether a concrete plan to wage war existed, and determine the
participants in that concrete plan.
“'It is immaterial to consider
whether a single conspiracy to the extent and over the time set out in the
indictment has been conclusively proved. Continued planning, with aggressive
war as the objective, has been established beyond a doubt.
“The
Tribunal will therefore disregard the charges in count one that the defendants
conspired to commit war crimes and crimes against humanity, and will consider
only the common plan to prepare, initiate, and wage aggressive war.”
* |
| In passing judgment upon the several defendants with respect to the
common plan or conspiracy charged by count one and the charges of planning and
waging aggressive war as charged by count two, the IMT made these observations
concerning: |
| |
| KALTENBRUNNER — Indicted and found not guilty under count
one. |
| |
“The Anschluss, although it
was an aggressive act, is not charged as an aggressive war, and the evidence
against Kaltenbrunner under |
__________
* Trial of the Major War
Criminals, volume I pp.
224-226.
1098 |
. 
