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| I concur in everything that has been said in the above opinion, but
reserve the right to file a special concurring opinion at the time the final
judgment is filed.¹ |
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WILLIAM J. WILKINS,
Judge Military Tribunal III
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| H. Concurring Opinion of Presiding Judge Anderson on the Dismissal of
the Charges of Aggressive War² |
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After the prosecution had rested its case-in-chief, the defendants,
on 12 March 1948, filed a joint motion for a judgment of not guilty on counts
one and four of the indictment. Upon a full consideration of said motion, the
reply of the prosecution thereto, the briefs, and the evidence, the motion was
sustained on 5 April 1948, and on the same day the Tribunal entered a formal
order to that effect. The material parts of this order are in the following
language: “The Tribunal is of the opinion that the competent and relevant
evidence fails to show prima facie that any of the defendants is guilty
of the offense charged in count one or the offense charged in count four of the
indictment and that said motion should be granted."
I fully concur in
this action of the Tribunal and the reasons therefor assigned in the opinion
heretofore filed, but having an additional approach to some of the questions
involved, I deem it not inappropriate to file this concurring opinion giving my
individual views. In the interest of continuity some repetition of the contents
of the major opinion will be unavoidable.
In the outset I may say once
and for all, and here I may speak for all of the members of the Tribunal, that
no one more fully agrees with the view of the civilized world that aggressive
war is the supreme crime, and no penalty is too severe for those who are
responsible for it. But, even so, I have no doubt that an objective
consideration, confined as it should be to the law and to the facts as
developed by competent and relevant evidence in this particular case, required
the decision made.
The twelve defendants were noncombatants engaged as
private citizens in the conduct of a private enterprise producing, among other
things, armament for profit. In two of the four counts in the indictment they
are charged with crimes against the peace.
Both counts are based on the
provisions of Allied Control Council Law No. 10, defining crimes against the
peace. This law |
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¹ Judge Wilkins
rendered his concurring opinion on 31 July 1948. the day of final judgment.
This opinion is reproduced immediately following the concurring opinion of
Presiding Judge Anderson.
² Dated 7 July 1948.
401 |
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