 |
catch-all words ‘other
persecutions’ must be deemed to include only such as affect the life and
liberty of the oppressed peoples. Compulsory taking of industrial property,
however reprehensible, is not in that category. It may be added that the
presence in this section of the words ‘against any civilian
population,’ recently led Tribunal III to ‘hold that crimes against
humanity as defined in Control Council Law No. 10 must be strictly construed to
exclude isolated cases of atrocity or persecution whether committed by private
individuals or by governmental authority.’ (U. S. A. v. Altstoetter
et al, decided 4 December 1947.) The transactions before us, if
otherwise within the contemplation of Law 10 as crimes against humanity, would
be excluded by this holding.” (Tr. p.
11013)* |
In accordance with this view, the other particulars of plunder,
exploitation, and spoliation, as charged in paragraphs C, D, E, and F of count
two of the indictment, will be considered only as charges alleging the
commission of war crimes.
It is to be also observed that this Tribunal,
in the above-mentioned ruling of 22 April 1948, further held that the
particulars set forth in sections A and B of count two, as to property in
Austria and the Sudetenland, would not constitute war crimes, as the incidents
occurred in territory not under the belligerent occupation of Germany.
We held that, as a state of actual warfare had not been shown to exist
as to Austria, incorporated into Germany by the Anschluss, or as to the
Sudetenland, covered by the Munich Pact, the Hague Regulations never became
applicable. In so ruling, we do not ignore the force of the argument that
property situated in a weak nation which falls a victim to the aggressor
because of incapacity to resist should receive a degree of protection equal to
that in cases of belligerent occupation when actual warfare has existed. The
Tribunal is required, however, to apply international law as we find it in the
light of the jurisdiction which we have under Control Council Law No. 10. We
may not reach out to assume jurisdiction. Unless the action may be said to
constitute a war crime as a violation of the laws and customs of war, we are
powerless to consider the charges under our interpretation of Control Council
Law No. 10, regardless of how reprehensible conduct in regard to these property
acquisitions may have been. The situation is not the same here in view of the
limited jurisdiction of this Tribunal, as it would be if, for example, the
criminal aspects of these transactions were being examined by an Austrian or
other court with a broader jurisdiction.
In harmony with this ruling,
the charges remaining to be disposed under count two involve a determination of
whether or not the proof sustains the allegations of the commission of war
crimes by any de- [...fendant] |
__________
* See volume VI, this series, pages
1215 and 1216.
1130 |
. 
