This International Military Tribunal, however, has ruled that the punishable crime against humanity is a dependent, subsidiary crime and that it can only be considered a crime if it has been committed in connection with a war crime or a crime against peace. The verdict of the International Military Tribunal[[130]] in rejecting the criminality of crimes against humanity committed prior to the war states the following:

“The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime.”

The prosecution before the International Military Tribunal has on its part endeavored to prove such a connection; this would not have been necessary if it had not considered this connection a part of the specification of the crime against humanity. Professor Donnedieu de Vabres, the French judge of the International Military Tribunal, expressed his attitude to this limitation of the punishable crime against humanity after the pronouncement of the verdict in a lecture quoted by the prosecution in the Flick case;[[131]] his opinion can be considered important. The French judge deplores the limitation of the crime against humanity, but he confirms it. This limitation is no figment of the imagination but the necessary result of the prevailing international law; it has its origin in the concept of sovereignty.

It is the purport of the Moscow Declaration and the London Statute, both of which have been incorporated into Law No. 10, to deal only with the crimes that affect the relations between nations. These relations are to be safeguarded and for that reason crimes are to be punished which are significant according to international law and which are connected with war crimes and crimes against peace. The “international” crimes are to be punished.

This significance of the international crime to be understood from the point of view of international law is especially clearly expounded in a book written by Professor Trainin who was the official advisor on judicial matters for the Soviet Union in the proceedings in Case I, the International Military Tribunal. This is a book entitled “The Criminal Responsibility of the Hitlerites” published by the Law Institute, Academy of Science in the Soviet Union, through [edited by] the academician Vishinsky. The book was written at the time the statute originated. According to this, it is not the meaning and purpose of “international criminal law” to impose punishment for crimes which have no effect beyond the borders of their own country and which do not involve the sphere of international law.

The fact that no thought was given to punishment of crimes committed within the borders of Germany is evident from the Moscow Declaration of 30 October 1943. In this declaration crimes are mentioned exclusively which have been committed in other countries to which the accused are to be returned.

If there could still be doubts with regard to the interpretation of the subsidiary nature of the crime against humanity, these doubts are eliminated by the Berlin Addendum Minutes [Zusatzprotokoll] added to the statute, dated 6 October 1945. In these minutes the subsidiary nature of the crime against humanity is elucidated by means of a correction, the apparent insignificance of which is the very thing that serves to emphasize its importance. According to this, the four Allied Main Powers, as the signatories of the statute, meet again only for the purpose of transforming a semicolon into a comma and it appears in the minutes that this was done because the meaning and intentions of the agreements and the statute require it.

Article 6 (c) of the statute was originally worded as follows and even at present is reproduced in many copies in the same form as far as punctuation is concerned:

“(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war ‘;’ or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

The wording of the Berlin Addendum Minutes [Protocol] dated 6 October 1945 in this context reads as follows:[[132]]