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THE PRESIDENT: Dr. Sauter.
DR. SAUTER: If you please, Mr. President.
THE PRESIDENT: The Tribunal has received your letter of the 17th of June of this year, signed by the Defendant Walter Funk.
DR. SAUTER: Yes. ·?
THE PRESIDENT: The Tribunal proposes to take notice of that; and if you will read it, it will then become a part of the record. So if you will read it to us now.
DR. SAUTER: Mr. President, at the moment I do not have the letter with me.
THE PRESIDENT: You may have my copy, but that is in English. The Tribunal would wish you to do it at 2 o'clock, then-to read that letter.
DR. SAUTER: Thank you, Mr. President.
' THE PRESIDENT: The same observation applies to Dr. Exner's letter of the 23d of June 1946 on behalf of the Defendant Jodl; only the Tribunal thinks that that letter also should be signed by the defendant, and read by Dr. Exner at 2 o'clock.
I call on Dr. Jahrreiss.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Mr. President and Gentlemen of the Tribunal, the main juridical and fundamental problem of this Trial concerns war as a function forbidden by international law; the breach of peace as treason perpetrated upon the world constitution.
This problem dwarfs all other juridical questions.
The four chief prosecutors have discussed the problem in their opening speeches, sometimes as the central theme of their presentation, sometimes as a fundamental matter, while indeed differing in their conceptions thereof.
It is now up to the Defense to examine it. The body of Defense Counsel have asked me to conduct this examination. It is true that
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it is for each counsel to decide whether and to what extent he feels in a position to renounce, as a result of my arguments, his own presentation of the question of breach of the peace. However, I have reason to believe that counsel will avail themselves of this opportunity to such an extent that the intention of the Defense to contribute materially toward a technical simplification of the phase of the Trial which is now beginning, will be realized by my speech.
I am concerned entirely with the juridical question, not with the appreciation of the evidence submitted during the past months. Also, I am dealing only with the problems of law as it is at present valid, not with the problem of such law as could or should be demanded in the name of ethics or of human progress.
My task is purely one of research; research desires nothing but the truth, knowing full well that its goal can never be attained and that its path is therefore without end.
I wish to thank the General Secretary of the Tribunal for having placed at my disposal documents of a decisive nature and very important literature. Without this chivalrous assistance it would not have been possible, under the conditions obtaining at present in Germany, to complete my work. The literature accessible to me originated predominantly in the United States. Familiar as I am with the vast French and English literature on this subject, which I have studied during the last quarter of a century-I am, unfortunately, not conversant with the Russian language-I believe, however, that I can fairly say that no important concept has been overlooked, because in no other country of the world has the disc cession of our problem, which has become the great problem of humanity, been more comprehensive and' more profound than in the United States.
This very fact has enabled me to forego the use of legal literature published in the former German sphere of control. In this way even the semblance of a pro dome line of argumentation will be avoided.
Owing to the short time at my disposal for the purpose of this speech, and at the same time in view of the abundance and complexity of the problems with which I have to deal, it will not be possible for me to cite all the documents and quotations I am referring to. I shall present only a few sentences. Any other procedure would interrupt the train of argument for the listener. I shall therefore submit to the Tribunal the documents and literary references In the form of appendices to my juridical arguments. What I am saying can thus quickly be verified.
The Charter threatens individuals with punishment for breaches of the peace between states. It would appear that the Tribunal is
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accepting the Charter as the unchallengeable foundation for all juridical considerations. This means that the Tribunal will not
examine the question whether the Charter, as a whole or in parts, is open to juridical objections; yet such a question nevertheless continues to exist.
If this is so, why, then, have any discussion at all on the main fundamental legal problems?
The British chief prosecutor even made it the central theme of
his long address to examine the relationship of the Charter, where our problem is concerned, to existing international law. He justified the necessity of his arguments by saying that it was the task of this Trial to serve humanity and that this task could be fulfilled by the Trial only if the Charter could hold its own before international law, that is, if punishment of individuals for breach of the peace between states was established in existing international law.
It is, indeed, necessary to clarify whether certain stipulations of the Charter may have created new laws, and consequently laws with retroactive force.
Such a clarification does not serve the purpose of facilitating the work of the historians. They will examine this, just as all the other findings in this Trial, according to the rules of free research; perhaps through many years of work and certainly without limiting the questions to be put and, if possible, on the basis of an ever greater wealth of documents and evidence.
Such a clarification is indispensable, if only for the reason that the decision as to right and wrong depends, or may depend, thereupon, all the more so if the Charter is considered legally unassailable.
Let us assume for the sake of argument that the Charter does not formulate criminal law which is already valid but creates new, and therefore retroactive, criminal law. What does this signify for the verdict? Must not this be of importance for the question of guilt?
Possibly the retroactive law which, for instance, penalizes aggressive war had not yet become fixed or even conceived in the conscience of humanity at the time when the act was committed. In that case the defendant cannot be guilty, either before himself or before others, in the sense that he was aware of the illegality of his behavior. Possibly, on the other hand, the retroactive law was promulgated at a time when a fresh conscience was just beginning to take shape, although not yet clear or universal. It is then quite possible for the defendant to be not guilty in the sense that he was aware of the wrongfulness of his commissions and omissions.
From the point of view of the European continental conception of penal law, the fact that a person was not aware of doing wrong is certainly a point which the Tribunal must not overlook.
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Now the question as to whether the penal law contained in the Charter is ex post facto penal law does not present any difficulty as long as the stipulations of the Charter are unequivocal and the prescriptions of international law as applying to date are uncontested.
But what if we have regulations capable of different interpretations before us or if the concepts of international law are the subject of controversy? Let us take the first: A stipulation of the Charter is ambiguous and therefore requires interpretation. According to one justifiable interpretation the stipulation appears to be an en post facto law; according to another, which can be equally well justified, it does not. Let us take the second: The regulation is clear or has been clarified by interpretation of the Court, but experts on international law are of different opinions as to the legal position applying to date; it is not certain whether we are not concerned with an en post facto law. In both cases it is relevant whether the defendant was conscious of the wrongfulness of his behavior.
I intend to demonstrate how important these considerations are in this Trial, and shall now begin the examination.
The starting points of the British and French chief prosecutors are fundamentally different.
The British chief prosecutor argues as follows, if I understood him correctly:
First, the unrestricted right of states to wage war was abolished in part by the League of Nations Covenant, later as a general principle by the Kellogg-Briand Pact, which continues to be the nucleus of world peace order to this very day. War, thus prohibited, is a punishable violation of law within and toward the community of nations, and any individual who has acted in a responsible capacity is punishable. Secondly, the indictment of individuals for breach of the peace, although novel, not only represents a moral necessity, but is in fact long overdue in the evolution of law; it is quite simply the logical result of the new legal position. Only in outward appearance does the Charter create new law.
And if I understood the British chief prosecutor correctly, he is asserting that since the conclusion of the Pact of Paris there exists a clear legal order based on the entire world's uniform conviction as to what is right. Since 1927 the United States have negotiated first with France, then with the remaining Great Powers, with the exception of the Soviet Union, and also with some of the smaller powers concerning the conclusion of a treaty intended to abolish vicar. Secretary of State Kellogg stated (in a note to the French Ambassador, 27 February 1928) with memorable impressiveness what the Government in Washington were striving for, namely:
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The powers should renounce war as an instrument of national politics, waiving all legal definitions and acting from a practical point of view, plainly, simply, and unambiguously, without qualifications or reservations.(1) Otherwise the object desired would not be attained: To abolish war as an institution, that is, as an institution of international law.(2)
After the negotiations had been concluded, Aristide Briand, the other of the two statesmen from whose initiative springs that pact which in Germany is often called the "Pact to Outlaw War," declared, when it was signed in Paris:
"Formerly deemed a divine right and remaining in international law as a prerogative of sovereignty, such a war has now at last been legally stripped of that which constituted its greatest danger: its legitimacy. Branded henceforth as illegal, it is truly outlawed by agreement...." (3)
According to the conception of both leading statesmen, the Paris Pact amounted to a change of the world order at its very roots, if only all, or almost all, nations of the world-and particularly all the great powers-signed the pact or adhered to it later on, which did actually happen.
The change was to be based on the following conception: Up to the time of the Kellogg-Briand Pact, war had been an institution of international law. After the Kellogg-Briand Pact, war was high treason against the order created by international law.
Many politicians and scholars all over the world shared this conception. It is the definite basic conception of that unique commentary on the League of Nations Covenant by which Jean Ray, far beyond the borders of France, stirred the hearts of all practical and' theoretical proponents of the idea of preventing war.(4) It is also the basic conception of the Indictment at Nuremberg.
(1) Note of Secretary of State Kellogg to the French ambassador of 27 February 1928.
(2) Note of the United States Government to the Governments of Great Britain, Germany, Italy, and Japan of 13 April 1928.
(3) "Consideree jadis comma le droit divin et demeuree dans l'ethique internationale comme une prerogative de la souverainete, une pareille guerre est enfin destituee juridiquement de ce qui constituait son plus grave danger: sa legitimite. Frappee desormais d'illegalite, elle est soumise au regime conventionnel d'une veritable mise hors la lot...." The speech by the French Foreign Minister is reproduced in The Department of State; T r e a t y f o r t h e R e n u n e i a t i o n of War. United States Government Printing Office; Page 309.
(4) Commentatre'du Paete de la Societe des Nations selon la politique et la jurisprudence des organes de la Societe. Paris 1930. (See especially Page 73 et sequentes) Further in the supplements for 1931-35, ler Supplement au Commentaire du Paete (1931) Page 13 et sequentes; 2eme Supplement (1932) Page 17 et sequentes, 3eme Supplement (1933) Pages 18, 39; 4eme Supplement (1935) Pages 19, 99.
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Diplomacy and the doctrine of international law found their way back into their old tracks after the first World War, after a momentary shock from which they recovered with remarkable rapidity. This fact horrified all those who were anxious to see the conclusions-all the conclusions-drawn from the catastrophe.
Mankind had a "grand vision of world peace" then, as Senator Bruce called it when the Pact of Paris was before the Senate for ratification(5) I know how much the personality and the achievements of Woodrow Wilson are a subject of dispute. But the more detachment we achieve, the clearer it becomes that he-by making fortunate use of his own preparatory work and of that of others(6)- finally conceived and presented to the humanity of the time an entirely brilliant train of thought which is as right today as it was then, and which can best be condensed as follows:
It is necessary to start afresh. The tragic chain of wars and mere armistices termed peace must be broken. Sometime humanity must have the insight and the will to pass from war to real peace, that is, to peace which is good in its essence, founded on existing legal principles, without regard to victory or defeat; and this peace, which is good in its essence, must be maintained-and maintained in good condition-by an organized union of states.
These aims can only be achieved if the most frequent causes of war are eliminated, namely excessive armaments, secret treaties, and the consecration-detrimental to life-of the status quo as a result of lack of insight on the part of the possessor of the moment.
Humanity did not follow this path. And it is not to be wondered at that among those who fought against the instruments of Versailles, St. Germain, Trianon, Neuilly, and Sevres, be it in the camp of the vanquished or in that of the victors, were the very ones who strove after real, lasting peace. When the Governments of the South African Union and Canada, in their replies to Secretary of State Hull's Principles of Enduring Peace of 16 July 1937, indicated in unusually strong language that a revision of unjust and forcibly imposed treaties was an indispensable precondition for real world peace, they took up one of the basic views of the great American President.(7)
(5) Congressional Record, Proceedings and Debates of the Second Session of the 70th Congress of the U.S., Volume LXX, Part. 2, Page 1333.
(6) See Baker, Ray Stannard, Woodrow Wilson and World Settlement, New York 1922, passim.
(7) See Kuhn, Arthur K., Observations of Foreign Governments upon Secretary Hull's Principles of Enduring Peace (A.J., Volume 32, 1938, Pages 101-106). Also: Wilson, Woodrow, War and Peace. Presidential Messages, Addresses and Public Papers, 1917-2d (edited by Ray Stannard Baker and William E. Dodd), New York 1927.
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Humanity did not follow Wilson.
Even for the members of the League of Nations war remained a means for settling disputes, prohibited in individual cases, but normal on the whole. Jean Ray(8), as late as 1930, said:
"The League of Nations did not prove to be a guide to the true order of peace, indeed it did not even prove to be a sufficient brake to prevent a complete backward movement into the former state. For the world did in fact slide back entirely."
For this is the all-important factor in our problem of law. Before the commencement of the second World War the whole system of collective security, even in such scanty beginnings as it had made, had collapsed;(9) and this collapse was acknowledged and declared expressly, or by equivalent action, by three world powers-and, in fact, declared with full justification. Great Britain clearly stated this at the beginning of the war to the League of Nations. I shall show this immediately.
The Soviet Union treated the German-Polish conflict simply according to the rules of classical international law concerning debellatio. I shall explain this shortly.
The United States declared their strict neutrality. I shall also explain the import of this declaration.
The system of collective security has been the subject of much dispute. In this matter involving the world's conscience, which is of fundamental importance in this very Trial, it cannot be a matter of indifference that the system, rightly or wrongly, appeared in 1938 to such a prominent specialist on international law as the American, Edwin Borchard, to be absolutely inimical to peace and the offspring of the hysteria of our age(10). The collapse may have had various causes; it is certain that the above-mentioned three world powers testified at the beginning of September 1939 to the collapse-the complete collapse-and that they did not, in fact, do so as a consequence of the German-Polish war.
To begin with, on 7 September 1939 the British Foreign Office told the Secretary General of the League of Nations(11) that the British Government had assumed the obligation, on 5 February 1930,
(8) Commentaire, Page 74.
(9) On the indisputable fact of the collapse, and the guilt of the great powers therein, cf. the bitter statements of Fenwick from the period immediately preceding the second World War. (International Law and Lawless Nat i o n s; A. J., Volume 33, 1939; Pages 734-745.)
(10) Neutrality and Unneutrality (A. J., Volume 32, 1938, Page 778 et sequentes.)
(11) See also the Memorandum on the Signature by His Majesty's Government in the United Kingdom of the Optional Clause of the Statute of the Permanent Court of International Justice (Cmd. 3452, Miscellaneous Number 12, 1929).
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to answer before the Permanent International Court of Justice at The Hague whenever a complaint was filed against Great Britain, which would include all cases of complaints which other states might lodge on account of conduct whereby Great Britain in a war had, in the opinion of the plaintiff, violated international law. The British Government had accepted this regulation because they had relied on the functioning of the machinery of collective security created by the League of Nations Covenant and the Pact of Paris-because, if it did function properly, and since Britain would certainly not conduct any forbidden wars, her opponent on the contrary being the aggressor, no collision between Britain and those states that were faithful to the security machinery could possibly be caused by any action of Britain as a seapower.(l2) However, the British Government had been disappointed in this confidence: Ever since the League Assembly of 1938 it had no longer been possible to doubt that the security machinery would not function; on the contrary it had, in fact, collapsed completely. A number of members of the League had already declared their strict neutrality before the outbreak of war:
"The entire machinery intended to maintain peace has broken down."(l3)
I will proceed to show how right the British Government were in the conclusions they drew. It should not be forgotten that the British Premier, Mr. Seville Chamberlain, had already proclaimed, on 22 February 1938 in the House of Commons, that is, before the so-called Austrian Anschluss, the complete inefficiency of the system of collective security. He said:(l4)
"At the last election it was still possible to hope that the League might afford collective security. I believed it myself. I do not believe it now. I would say more: If I am right, as I am confident I am, in saying that the League as constituted today is unable to provide collective security for anybody, then I say we must not delude ourselves, and, still more, we must not try to delude small weak nations into thinking that they will be protected by the League against aggression and acting accordingly, when we know that nothing of the kind can be expected."
The Geneva League of Nations was "neutralized," as Noel Baker politely expressed it later in the House of Commons.(15)
(12) It is the same train of thought developed by Brierly, Some Implications of the Pact of Paris (Br. YB 1929).
(13) "Tout le mecanisme prevu pour le maintien de la paix s'est disloque."
(14) Parliament Debate, H. C., Volume 332, Column 226 et sequentes.
(15) Parliament Debate, H. C., Volume 353, Number 198, Column1178 (21 November 1939).
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Secondly, in view of the correct conclusions drawn by the British Government and expressed in their note of 7 September 1939 to the League of Nations, it is no wonder that the Soviet Union treated the German-Polish conflict in accordance with the old; rules of power politics. In the German-Russian Frontier and Friendship Pact of 28 September 1939 and in the declaration made on the same day in common with the Reich Government,(l5a) the Moscow Government bases its stand on the conception of the debellatio of Poland, that is, the liquidation of Poland's government and armed forces; no mention is made of the Pact of Paris or the League of Nations Covenant. The Soviet Union takes note of the liquidation of the Polish state machinery by means of war, and from this fact draws the conclusions which it deems right, agreeing with the Reich Government that the new order of things is exclusively a matter for the two powers.
It was therefore only logical that in the Finnish conflict, during the winter of 1939-1940, the Soviet Union should have taken its stand on classical international law. It disregarded the reactions of the League of Nations when, without even considering the application of the machinery of sanctions and merely pretending to apply an article of the Covenant referring to quite different matters, that body resolved that the Soviet Union had, as an aggressor, placed itself outside the League.(l6) The report of the Swiss Federal Council of 30 January 1940 to the Federal Assembly endeavored to save the face of the League which was excluded from all political realities.
Thirdly, the President of the United States stated on 5 September 1939 that there existed a state of war between several states with whom the United States lived in peace and friendship, namely, Germany on the one hand, and Great Britain, France, Poland, India, and two of the British dominions on the other. Everyone in the United States was required to conform with neutrality regulations in the strictest manner.
Since the time of the preliminary negotiations, it was a wellknown fact in the United States that Europe, and particularly Great Britain and France, saw the main value of the Pact to Outlaw War in the fact that the United States would take action in case of a breach of the pact. The British Foreign Secretary stated this on 30 July 1928, that is, 4 weeks previous to the signing of the pact. During the deliberations of the American Senate on the ratification of the pact, Senator Moses drew particular attention to this.(l7)
(15a) See Jahrreiss Plea, Annex, Exhibit Numbers 35 and 36.
(16) Resolutions of the Assembly and the Council of 14 December 1939.
(17) Congressional Record, Proceedings and Debates of the Second Session of the 70th Congress of the U.S., Volume LXX Part 2, Pages 1169/99. See also Ellery C. Shotwell, R e s p o n s i b i I i t y o f t h e United States in Regard to International Cooperation for the Prevention of Aggression (A.J., Volume 26, 1932, Page 113).
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Senator Borah affirmed at the time that it was utterly impossible to imagine that the United States would calmly stand by.(18) After the discredit resulting from the failure of the policy of collective security in the case of Manchuria and Abyssinia the world had come to understand the now famous "quarantine" speech of President Franklin D. Roosevelt on 5 October 1937 and his "Stop Hitler!" warnings before and after Munich to mean that the United States would act on the next occasion. The declaration of neutrality of 5 September 1939 could therefore only mean: Like Great Britain and the Soviet Union, the United States accepts as a fact the collapse of the system of collective security.
This declaration of neutrality has often been looked upon as the death blow to the system. The Washington Government would be entitled to reject such a reproach as unjustified. For the system had already been-dead for years, provided one is prepared to believe that it was ever actually alive. But many did not realize the fact that it was no longer alive until it was brought into relief by the American declaration of neutrality.
By 1 September 1939 the various experiments, which had been tried since the first World War with a view to replace the "anarchic world order" of classical international law by a better, a genuine, order of peace, were over, that is, to create in the community of states a general statute according to which there would be wars which are forbidden by law and others which are countenanced. These experiments, in the opinion of the major powers of the time, had failed. The greatest military powers of the earth clashed in a struggle in which they pitted their full strength against one another. For the proponents of a materialistic conception of history this meant the second phase in a process developing according to inexorable laws, whereby history swept away all diplomatic and juridical artifices with supreme indifference.
The majority of international lawyers throughout the world maintained that in universal international law as at present applied, there exists no distinction as to forbidden and nonforbidden wars.
Hans Nelsen set this forth in 1942 in his paper Law and Peace in International Relations, which he wrote after painstaking research into literature. He himself belongs to the minority who are prepared to concede a legal distinction between just and unjust wars, so that his statement carries all the more weight.
Now we must ask: Are we in point of fact right in speaking of the collapse of the system of collective security? This would
18 See also Brierly, J.L., Some Implications of the Pact of Paris (Br. YB l929). He thinks that a violation of neutrality is impossible. In 1936 the same thought was expressed by the Englishman McNair: Collective Security (Br. YB).
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presuppose that such a system at one time existed. Can that really be maintained? This is a question of the greatest importance for this Trial, in which the existence of a world-wide consciousness of right and wrong is taken as the basis for the indictment for breach of the peace.
Let us recall the tragedy of the Kellogg-Briand Pact, that tragedy from which all those have suffered so much who rejoiced when the pact was concluded and who later, after a first period of depression, hailed the Stimson Doctrine as a long overdue step essential for the achievement of real peace and as an encouraging omen of fresh progress.
The United States had a great goal in view in 1927 and 1928, as I already mentioned. In the League of Nations the problem had been tackled only half-heartedly and with half measures, and this had perhaps done more harm than good to the cause of real peace. The Geneva Protocol had failed. Kellogg now wanted to overcome all the difficulties inherent in the problem and bring the world round by vitality and determination. The pact as published, with its two articles containing the renunciation of war and the obligation of peaceful settlement, seemed to still the yearning of humanity eager for some deed.
But the difficulties it was desired to surmount are in part rooted in the problem, and no rules laid down by any legislator will ever fully eliminate them. For even if unambiguous criteria existed, who among fallible mankind would have the authority to give a decision in case of dispute? We do not even possess unambiguous criteria for aggression and defense.(19) This holds good both for the so-called political concept, which is in a way natural, and for the legal concept or concepts of aggression and defense.
Yet these were not the only difficulties pointed out, explicitly and implicitly, by the French Government in the preliminary negotiations for the pact; they did so with the full title(20) of one who knows Europe and its ancient historical heritage just as the United States Government knows America and its vastly different history.
(19) See, for instance, Eagleton, Clyde, An Attempt to Define Aggression (International Conciliation Number 264, 1930). Cuten, A., La notion de guerre permise, Paris 1931. Wright, Quincy, The Concept of Aggression in International Law (A. J., Volume 29, 1935, Page 395 et sequentes).
(20) Note of the United States Government to the Governments of Great Britain, Germany, Italy, and Japan of 13 April 192~3; draft treaty of the 20 April 1928 drawn up by the French Government; Note of the British Secretary of State for Foreign Affairs of 19 May 1928 to the American Ambassador; Note of 23 June 1928 from the U. S. Government to all nine participants in the negotiations; Note of the British Secretary of State for Foreign Affairs of 18 July 1928; Note of the Soviet Commissar for Foreign Affairs to the French Ambassador of 31 August 1928.
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When the world came to know the notes exchanged during the preliminary negotiations with all their definitions, interpretations, qualifications, and reservations, it became manifest to what extent the opinions of the governments differed behind that wording. One saw the Soviet Government's frank-even scathing-criticism of the refusal of the Western Powers to disarm and thus create the essential precondition for an effective policy of peace and generally of the vagueness of the treaty;(21) but especially of the famous British reservation of a free hand in certain regions of the world, that reservation which has often been called the British Monroe Doctrine or the Chamberlain Doctrine;(22) and one knew that in reality there existed only formal agreement behind the signatures and that no two powers were implying exactly the same thing by the treaty. Only on one thing did complete agreement exist: War in self-defense is permitted as an inalienable right to all states; without that right, sovereignty does not exist; and every state is sole judge of whether in a given case it is waging a war of self-defense.
No state in the world at that time was prepared to accept foreign jurisdiction concerning the question of whether its decisions on basic questions of its very existence were justified or not.
Kellogg had declared to all the nine states participating in the negotiations, in his note of 25 June 1928:(23)
". . . The right of self-defense . . . is inherent in every sovereign state and is implicit in every treaty. livery nation. . . is alone competent to decide whether circumstances require recourse to war in self-defense."
The friends of peace were cruelly disappointed. What was the use of such a treaty anyway? They were only too right. Very soon afterward they heard with even greater grief of the course of the discussions in tie American Senate. The ratification was, it is true, passed with 85 votes against 1, with a few abstentions; but if, behind the signatures of the contracting states there was no material agreement, there was even less behind the result of the vote in the Senate of that world power which was, as far as the conception and initiative was concerned, the leading one.
The discussions in the Senate, which will remain memorable for all time because of their earnest and profound character, showed- and several senators expressly said so-that the opinions of the senators were oscillating between two poles which were worlds apart. For some the treaty really meant a turning-point in world
(21) Note of the Soviet Commissar for Foreign Affairs of 31 August 1928.
(22) Note of the Soviet Commissar for Foreign Affairs of 31 August 1928.
(23 See also Kellogg, F., 'The War Prevention Policy of the United S t a t e s (A. J., Volume 22, 1923, Page 261 et sequentes).
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history; to others it appeared worthless, or at best a feeble or friendly gesture, a popular slogan, a sort of international embrace; to yet others as fertile soil for all the wars of the future, a gigantic piece of hypocrisy, as the legalization of war or even of British world control, or as a guarantee of the unjust status quo of Versailles for France and Great Britain.
Some senators criticized the utter vagueness of the stipulations of the treaty even more bitterly than the Russian note. And if Kellogg's declaration about the right of self-defense, which, according to the will of the signatory states, was an integral part of the treaty, was taken literally: What kind of war was then forbidden?(24) Sarcastic and ironical words were used in the Senate.
Nothing was gained by this Paris Pact if everything were to remain as at its conclusion. In the opinion of the great American expert on international law, Philip Marshall Brown, the pact unwittingly engendered by its ineptness the horrible specter of "undeclared war." (25)
Those, Germans or non-Germans, who fought against Versailles because progress was blocked, and those, Germans or non-Germans, who criticized the League of Nations because it did more harm than good to the will toward progress, had all rejoiced for nothing at the end of August 1928. The decisive step had not been taken.
But above all the one thing which, though not sufficient in itself, is indispensable if a guarantee of peace is really to be created, the one thing that is necessary in the unanimous opinion of all who reckon with human frailty, was never tackled: To create a procedure by which the community of states, even against the will of the-possessor, can change conditions that have become intolerable, in order to provide life with the safety valve it must have if it is to be spared an explosion.
The individual state, if at all, can avoid revolutions only by good legislation and an early adjustment of order to changing conditions; and the same is true of the community of states. Wilson also had this fundamental principle in mind, as we saw. One of the great British experts on international law, one of the enthusiastic, unconditional, and progressive adherents of the Paris Pact, McNair, took this into account too when, in 1936, he wanted to see placed beside collective force the collective and peaceful revision of conditions which had become dangerous.(26) And it was also taken into account
(24) Congressional Record, Proceedings and Debates of the Second Session of the 70th Congress of the United States, Volume LXX, Part 2 (5 January 1929 to 26 January 1929, Page 1169 et sequentes, Washington 1929).
(25) International Lawlessness, (A. J., Volume 32, 1938, Page 775).
(26) Collective Security (Br. YB, 1936, Page 150 et sequentes).
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by the American experts on international law, Borchard (27) and Fenwick,(28) in their warning illustration of the situation as regards international law shortly before the second World War. The Reich Government, by the way, had pointed out this problem, which overshadowed all others, in Stresemann's note to the American Ambassador, dated 27 April 1928, when unconditionally agreeing to Kellogg's proposal.(29)
Later, the problem of "collective revision" was never seriously tackled. This is not surprising, if only because the very character of such a procedure would presuppose renunciation of their sovereignty by the states. And can such a renunciation be considered in the times we live in? In Philip Brown's melancholic opinion-"less than ever."(30) For that reason a real forward step in the question as to how war could legally be outlawed was impracticable.
In spite of these intricate complications the Government of the United States and the League of Nations did a great deal to comply with the urgent demands of the nations. They subsequently tried to give the pact a precise content, and "teeth." The doctrine of international law provided suggestions for this and checked it. Although it remained completely unsuccessful, we shall have to trace this process briefly, because the seed for the ideas contained in the Indictment are to be found here, insofar as its line of argument is not a political or ethical but a legal one.
In its ban on aggression, the Paris Pact unquestionably starts from the political concept of aggression. But that is quite indefinite. Shotwell and Brierly, among others, tried to assist immediately by deducing a legal concept of aggression from the second article of the treaty, which establishes the obligation to follow a procedure of peaceful settlement.(3l) We can leave open the question whether it is permissible to apply this interpretation to the treaty. In practice nothing is gained by doing so; one kind of difficulty is simply put in the place of another. There are no fewer obscurities. Measures for peaceful settlement presuppose good will on both sides; what if that is lacking on one side or the other? And what still constitutes a measure of peaceful settlement, and what no longer does? The Russian Government were quite right in their note of 31 August
(27) Neutrality and Unneutrality (A. J., Volume 32, 1938, Page 778 et sequentes).
(28) International Law and Lawless Nations (A.J., Volume 33, 1939, Pages 743-745).
(29) See also Scelle, George, Theorie juridique de la revision des traites. Paris, 1936; further: Kunz, Josef, The Problem of Revision in International Law ("peaceful change',), (A. J., Volume 33, 1939, Pages 33-35).
(30) International Lawlessness (A.J., Volume 32, 1938, Page 775).
(31) Brierly, Some Implications of the Pact of Paris (Br. YB 1929, Page 208 et sequentes).
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1928 on the Kellogg-Briand Pact when they brought up this question.
Other attempts to help tried to develop a completely new world constitution out of the entirely vague pact by way of logic. They are connected with the name of the American Secretary of State, Stimson, and with the work of the Budapest meeting of the International Law Association in 1934.(32) In order to understand this, it will be found necessary to assume that the Kellogg Pact really did bring about, in a legally conceivable manner, the unambiguous and unconditional renunciation of war. Then, of course, there exists no longer any right to wage wars as and when one likes. War waged in defiance of this prohibition is an offense against the constitution of the community of states. We are immediately faced by the question: Can the legal position of a state which attacks contrary to law be the same as that of a state which is being attacked contrary to law?
If one answers "no," as does for instance the influential French commentator of the League of Nations Covenant, Jean Ray,(33) does not this mean the elimination of the most important fundamental principles of classic international law?
(1) Do the international laws of war-which, after all, spring from the right to wage war freely and from the duel-like character of war and certainly from the equality of the belligerents before the law-apply for the qualification of the acts of the belligerent powers against one another?
(2) Is it possible, or indeed permissible, that neutrality should still exist in such a war?
(3) Can the result of the war, assuming that the aggressor is victorious, be valid under law, especially when compressed into the form of a treaty, or must not the community of states deprive the aggressor of the spoils of his victory by a policy of nonrecognition? Should there not be, or must there not be, joint coercive action by the states against the aggressor?
It must be noted that not even theoretical law has drawn all possible conclusions. The practice of the states, after a few tentative beginnings in isolated points, never came to a definite conclusion in a single case.
With regard to the first point, the validity of the international laws of war during a war, whatever its origin, has never so far been seriously disputed by any state. Any doubts that arose were cleared up in a way which allowed of no misunderstandings. I draw attention to Resolution Number 3 of the League of Nations Assembly
(32) The well-known "Budapest Articles," International Law Association: B r i a n d -K e l l o g g P a c t o f P a r i s, London 1934, Page 63 et sequentes.
(33) Commentaire, Page 371.
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of 4 October 1921 and to the report of the Committee of Eleven of the League of Nations for the adaptation of the Covenant to the Pact of Paris.(34)
The aggressor state has the same rights and duties in a war as the attacked nation, that is, those laid down by the traditional international laws of war. The French chief prosecutor appears to wish to deviate from this line, although he does not seem disposed to draw the full conclusions. However, I do not see any tendency to deviate from the present path even in the most recent practice of states.
With regard to the second point:
Attempts have been made to deny the obligation to remain neutral and, in fact, finally to establish for the states not involved the right of non neutrality and even the right to wage war against the aggressor. Some statesmen and scholars have devoted themselves just as passionately to undermining, and even to outlawing, the right to neutrality as other statesmen and scholars have spoken in favor of its undiminished continuance(35). The clearer it became that the whole system of collective security failed to function in those particular cases which were of decisive importance, namely, where steps would have had to be taken against a great power, the more the idea of neutrality asserted itself with fresh vigor. The complete discredit attaching to the League of Nations and the system of the Kellogg-Briand Pact since the Abyssinian conflict put classical international law back into its old position. In 1935 Switzerland declared her unrestricted neutrality;(36) Belgium, Denmark, Finland, Luxembourg, Norway, Holland, and Sweden followed with their
(34) Of 8 March 1930. See also Rutgers in the Recuei1 des Cours (Academic de Droit International), Volume 38, Page 47 et sequentes. Further: "Budapest Article 7" and }buns, Josef, "Plus de lot de la guerre?" (Revue Generale de Droit International Public, 1934). - Cohn, Neo-Neutrality (1939).
(35) The Peruvian delegate, Senor Cornejo, in the Committee of the League of Nations Assembly in 1929 said (Assemblee 1929, C m J. O., Page 201): "Neutrality no longer exists!" Stimson, The Pact of Paris, Address 8 August 1932. Hull, Declaration on the Neutrality Law of 17 January 1936. Pact of Rio de Janeiro of lo October 1933. speech by the Swedish Foreign Minister Sandler of 6 December 1937 (see Jahrreiss Plea, Annex Exhibit Number 27). 3 October 1939: Declaration of Panama; the exchange of notes by the 21 American Republics with Great Britain, France, and Germany (23 December 1939),14 January, 23 January, 14 February 1940) is based completely on the classic Neutrality Law. The "Budapest Articles."-Literature: D'Astroy, B. (1938); Baty, Th. (1939); Bonn, M. J. (1936/37); Borchard, E. M. (1936, 1937, 1938, 1941); Brierly, J. L. (1929, 1932), Brown, Ph. M. (1936, 1939); Quell (1936); Cohn (1939); Descamps, de (1930); Eagleton, Clyde (1937); Fenwick, Charles G. (1934, 1935, 1939); Fischer Williams, Sir John (1935, 1936); Garner, James Wilford (1936, 1938), Hambro, Edvard (1938), Hyde, C. C. (1937, 1941); Jessup, P. C. (1932, 1935, 1936), Lauterpacht (1935, 1940); Mandelstam (1934) Miller, David Hunter (1928), McNair (1936), Politis, N. (1929, 1935), Rappard, W. E. (19351937) Schindler, D. (1938); Stimson, H. (1932); StoweU, Ellery C. (1932); Tenekides, C. C (1939); Whitton, J. B. (1927, 1932); Wright, Quincy (1940).
(36) Reserves de la Delegation Suisse (M. Motta) of 10 October 1935.
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declaration at Copenhagen on 24 July 1938.(37) The failure of the League of Nations was the reason quite openly given.
With reference to the third point:
The idea underlying the policy of nonrecognition is that the states not involved in a conflict should conduct themselves as members of the community of states, that is, they should protect the constitution of the community of states by refusing to recognize the fruits of victory, should the victor have been the aggressor. The situation he has created by force should not even seem to become a legal situation. He will thus be deprived of what he has gained, and one of the main inducements to wage war will thereby be eliminated. Such a policy of nonrecognition is undoubtedly not enough to guarantee by itself a system of collective security, but it is an indispensable part of such an order. There can be no dispute about this. The Brazilian representative, Senhor Braga, gained merit by proposing, at the second League Assembly in 1921, that such a policy be followed by the members of the League of Nations under the name of a "universal legal blockade" (blocks juridique universel).(38)
The Finnish representative, M. Procope, interpreted Article 10 of the Covenant in this sense in 1930 before the League Assembly.(39) The notes by the American Secretary of State, Stimson, of 7 January 1932 to China and Japan(40) made this idea echo throughout the world. Their contents are commonly referred to as the Stimson Doctrine. The League of Nations accepted the Doctrine as a resolution of the Assembly on 11 March 1932.(41) The concept was later the focal point of the Pact of Rio de Janeiro of 10 October 1933 and of the Budapest Articles of 10 September 1934.
The conflict between Italy and Abyssinia in 1935-36 became the great test case(42) which decided the fate of the system of collective security. The League of Nations declared a member, which was a great power, to be the aggressor and decreed economic sanctions but then shrank from coercive military measures and finally, after Italy's victory, struggled painfully in debates on procedure, especially at the 18th Assembly of the League, to find an answer to the
(37) Udenrigspolitiske Meddelelser 4. Aergang, Numbers 4-5, Page 122 et sequentes (see Jahrreiss Plea, Annex Exhibit Number 30).
(38) Actes de la IIe Assemblee, seance des commissions, I, Page 396 et sequentes.
(39) Acetes de la IIe Assemblee, Page 75.
(40) Department of State, Press Releases, 9 January 1932, Page 41.
(41) Actes de l'Assemblee extraordinaire (J. O., Supplement special, Number 101, Page 87).
(42) Jean Ray, 4e Supplement du Commentaire, 1935, Page 10: "On homme d,Etat a dit un tour en parlant de Particle 15 que, s'il s'appliquait, it ne s'appliquerait sans douse, qu'une foist On pout dire la meme chose de tout le mecanisme qui dolt faire obstacle a la guerre."-See also Fischer Williams, Sir John, Sanctions under the Covenant (Br. YB 1935) and McNair, Arnold D., Collective Security.
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question as to how the League, without openly betraying its constitution, could cross the attacked member, the minor power of Abyssinia, off the list of existing states and recognize it as part of the Italian Empire. The United States, too, did not enforce the Stimson Doctrine but remained strictly neutral.(43),(44)
It is necessary to realize all this; and also to know that the British Government, on 20 February 1935, politely but firmly refused, through Lord Chancellor Viscount Sankey,(45) to accept the logical explications and paid tribute to the old truth: "It is not logic but history that creates law."(46) On a later occasion, when Secretary of State Cordell Hull had explained the principle of American policy to all the powers on 16 July 1937,(47) the Portuguese Government issued a warning against "the abstract and generalizing tendency of jurists"; it warned against attempts to "find a single formula" and against not studying historic facts sufficiently.(48)
We therefore come to the conclusion that in the actual relations between states there existed-quite a number of years prior to 1939-no effective general ruling of international law regarding prohibited war. No such general ruling existed so far as the leading statesmen and the peoples were aware.
This is, in fact, the ultimate reason why the system of specific rulings on international law was followed to an ever-increasing extent. Two states would thus conclude treaties, in full knowledge of their particular historical conditions and with a view to guarantee peace between each other.
Now, during the second World War the United States Government decided to help Great Britain. Great Britain was able to acquire destroyers, and it later received the assistance of Lend-Lease. The American public recognized this act of assistance as
(43) With reference to the Stimson Doctrine and the case of Abyssinia see also the works and papers of Borchard (1933), Fischer Williams (1936), McNair (1933), Sharp (1934), Stimson (1932), Wild (1932), Wright (1932, 1933).
(44) With reference to the system of collective security see from the literature concerning the whole position in international law: Brierly (1932); Bourquin (1934); Brouckere (1934); Cuten (1931); Descamps (1930); Eagleton ~930, 1937, 1938); Elbe (1939); Fenwick (1932, 1934, 1g35, 1939); Fischer Williams (1932, 1933, 1935, 1936); Giraud (1934); Garner (1936); Graham (1929, 1934); Hill (1932); Hyde (1941); Jessup (1535); Mandelstam (1934); Politis (1929); Ritgers (1931); Shotwell (1928); Wickersham (1928/29); Whitton (1932); Wright (1942).
(45) Parliament Debates H.L. 5th series, Volume 95, Cols. 1007, 1043.
(46) Lauterpacht, The Pact of Paris and the Budapest Articles of Interpretation (Transactions of the Grotius Society, XX, 1935, Page 178), draws his conclusions from the fact that the states can accept or refuse, as logically established as law in Budapest. Jessup (Neutrality, Its History, Economics, and Law, Volume IV, Today and Tomorrow, 193G) finds that the states failed to accept the Budapest Articles.
(47) See A. J., Volume 31, 1937, Pages 680-693.
48 See the concurring statements by Kuhn, Arthur K., Observations of Foreign Governments upon Secretary Hull's Principles of Enduring Peace (A. J., Volume 32, 1938, Pages 101, 106).
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being essentially no longer neutral; it was regretted by some, welcomed by others, sometimes attacked and sometimes defended. The supporters of the measures before the American public, above all Stimson and Cordell Hull, quite rightly refrained from justifying them as consistent with neutrality. On the contrary, they took their stand on the Pact of Paris as -interpreted by the Budapest Articles.(49) As we saw, this would, according to Viscount Sankey's indisputably correct conception of the sources of international law, have been wrong as far back as 1935.
After the developments which had taken place since Italy's victory over Abyssinia, such discussions were entirely outside the field of legal realities. Their purpose was to resolve internal dissensions in America and for that very reason could not have been of direct importance for international law. Even had these discussions taken place between states, they could at most have helped to create law. But is it actually necessary to assert or prove that such discussions could not have created, in the midst of the great struggle, a law to attain which so many efforts-efforts which were proved to have been Utopian-were made in vain in peacetime?
In this Court many ways of legal thinking meet-ways which are in part very different. This leads to a number of ineradicable differences of opinion. But no manner of legal thinking anywhere on earth, from the most ancient times to the most recent, could or can make possible arguments which contradict the very nature of law as a social order of human life arising out of history. If several governments accept articles about whose contents they are of different opinions and if these articles then find no real application in the practice of these governments-which is not to be wondered at considering the circumstances under which they arose-and if logicians then interpret these articles, while the practice of governments rejects these interpretations either expressly or tacitly, then one will simply have to resign oneself to this, inasmuch as one proposes to keep to the task of legal appreciation, however much the goal may seem worth striving for, politically or morally.
But let us forget for a moment the bitter realities of those years following upon the Italo-Abyssinian conflict. Let us suppose for a moment that a general and unambiguous pact had existed, accepted and applied by the contracting parties in fundamental and factual agreement. Would the liability of individuals to punishment for the breach of such a treaty be founded in international law?
No-not even the liability of the state to punishment, let alone that of individuals.
(49) See Wright in A. J., Volume 34, 1940, Page 680 et sequentes; particularly Stimson's speech of 6 January 1941 should be mentioned here.
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The breach of such a treaty would not be any different, under existing international law, from any other violation of international law. The state violating a treaty would be committing an offense against international law, but not a punishable act.(50) Attempts were occasionally made to deduce from words delis (offense), crime international (international crime), and condemnation de la guerre (condemnation of war) the existence of an international criminal-law dealing with our case. Such conclusions are based on wrong premises.(5l) Every lawyer knows that any unlawful behavior can be called a delis (delictum), not only punishable behavior. And the word crime is used even entirely outside the legal sphere. And this is precisely the case here. When in 1927, on Poland's application, the League of Nations Assembly declared war to be a crime international, the Polish representative expressly stated that the declaration was not actually a legal instrument but an act of moral and educational importance.(52) The endeavor to organize a universal world system of collective security on a legal basis failed. But this does not mean that the numerous bilateral treaties whose purpose it is to preclude wars of aggression between the two partners became inapplicable. One will have to examine whether the parties to the treaty may have made the existence or continued existence of a general machinery of collective security the prerequisite for the validity of the treaty.
For unilateral assurances of nonaggression the same holds good as for bilateral treaties.
Many bilateral nonaggression pacts were concluded and several unilateral assurances were given. In some cases a political, in others a legal concept of aggression, or even a number of such legal concepts may determine right and wrong.
The Reich also concluded a series of such pacts. They have been cited by the Prosecution in argument. One must examine whether all these treaties were still in force at the critical moment, and this examination will be left to the individual defendant's counsel. But if the Reich did attack, in some specific case, in breach of a nonaggression pact which was still valid, it committed an offense in international law and is responsible therefor according to the rules of international law regarding such offenses.
(50) Fischer Williams also stresses this, (Sanctions under the Covenant, Br. YB, 1936, Page 130 et sequentes). Also Kelsen, Collective and Individual Responsibility... 1943, Page 531.
(51) An all too appropriate warning against mistaken conceptions in connection with the term "crime international" is given by Fischer Williams, Sanctions under the Covenant, (Br. YB, 1936, Page 130 et sequentes).
(52) Actes de l'Assemb1ee 1927, P., Page 153. Also Jean Ray, Commentaire, Pages 74~75.
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But only the Reich-not the individual, even if he were the heat of the State. This is beyond all doubt, according to existing international law. It is unnecessary even to speak about this. For up to the most recent times not even the possibility was mentioned, either in the Manchurian, or in the Italo-Abyssinian, or in the Russo-Finnish conflict, of instituting criminal proceedings against those people who were responsible, on the Japanese, Italian, or Russian side, for planning, preparing, launching, and conducting the war or who simply participated in these acts in any way. And it was certainly not because matters had, paradoxically enough, not been thought out to the end, that they were not prosecuted. They were not prosecuted because this cannot take place as long as the sovereignty of states is the organizational basic principle of interstate order.
THE PRESIDENT: I think this would be a convenient time to break off.
[A recess was taken.]
DR. JAHRREISS: One thing or another(53)-should things reach the point where, according to general world law, the men who participated in the planning, preparation, launching, and conduct of a war forbidden by international law could be brought before an international criminal court, the decisions regarding the state's final problems of existence would be subject to super-state control. One might, of course, still term such states sovereign; but they would no longer be sovereign. In his paper, written late in 1943, which I have already mentioned several times and which was prepared after the Moscow conference of 1 November 1943, Kelsen again and again repeats that in questions of breach of the peace, the liability of individuals to punishment does not exist according to the general international law at present valid and that it cannot exist because of the concept of sovereignty.(54)
For Europeans, at any rate, the state has during the last four centuries, especially following the pronounced advance made by the idea of the national state, achieved the dignity of a super-person.
Of course, acts of state are acts of men. Yet they are in fact acts of state, that is, acts of the state carried out by its organs and not the private acts of Mr. Smith or Mr. Muller.
What the Prosecution is doing when, in the name of the world community as a legal entity, it desires to have individuals legally
(53) Correctly Fischer Williams, Sanctions under the Covenant (Br. YB, 1936).
(54) Collective and Individual Responsibility..., Pages 534, 538, 539, 540, 542.
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sentenced for their decisions regarding war and peace, is, when facing the issue from the angle of' European history, to look upon the state as one would look upon a private individual; indeed, more than that: What it is doing is destroying the spirit of the state. Such an indictment, the moral justification of which is not my concern- such an indictment is, as we have already shown, incompatible with the very nature of sovereignty and with the feeling of the majority of Europeans. It seems, indeed, as though not only Europeans feel that way. In 1919, in Paris, it was the American delegates at the War Guilt Investigation Committee who opposed most strongly any legal sentence on the Kaiser for the very reason of the incompatibility of such a procedure with the sovereignty of the State.(55) And it is impossible to underline the idea of sovereignty more strongly than Kellogg did 8 years later during the negotiations in connection with the Pact of Paris, when he declared, as I have already said, 'Every state is the sole judge of its behavior with regard to questions affecting its very existence."
There are epochs which idolize the sovereignty of the state; others deprecate it. Certain epochs have done both at the same time-ours does so. Perhaps we are living in a period of transition. Perhaps a transformation of values is taking place. Perhaps world community will become the supreme political value for the peoples in place of their own particular states, which, at any rate, held this position hitherto. Perhaps we shall reach a point where the unleashing of a war deserving moral and also legal condemnation will, for the general legal conscience, constitute high treason against the world community. Perhaps we shall reach a point where it will be permissible, or even compulsory, to betray a government starting such a war to foreign countries without this being termed high treason toward one's own. At the moment there is in no nation a majority, let alone unanimity, in support of this conclusion.
The punishment of individuals by the legal community of nations for breach of the peace between states can thus be ordered only provided the fundamental principles of international law as at present valid and the scale of values as for centuries they have been firmly rooted in the feeling of the European nations are abandoned- that scale of values according to which the state, one's own sovereign state, forms the indispensable foundation for free personality.
The Prosecution breaks up in its own mind the German State at a time when it stood upright in its full strength and acted through
(55) Scott, James Brown, stresses the great merit gained by the American delegates at that time in the interests of law and justice (see House-Seymour, W h a t Really Happened at Paris, New York 1921).-Williams, E.T., The Conflict between Autocracy and Democracy (A. J., Volume 32, 1938, Page 663 et sequentes).-Nelsen, Collective and Individual Responsibility..., Page 541.-Also Borchard, Edwin, Neutrality and Unneutrality (A. J., Volume 32, 1938, Page 778 et sequentes).
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its organs. It must do so if it desires to prosecute individual person for a breach of the peace between states. It must turn the defendants into private individuals. Then again the defendants-as it were on the private level-are strung together into a conspiracy by legal concepts rooted in Anglo-Saxon law and alien to us. They are placed on a pedestal provided by the many millions of members o organizations and groups which are designated as criminal, thereby once more allowing them to appear as an "ultra-individual" value
Insofar as the Charter supports all this by its regulations, it i laying down fundamentally new law, if-concurring with the British chief prosecutor-one measures against existing international law That which, originating in Europe, has finally spread to the whole world and is called international law is, in essence, a law of the co-ordination of sovereign states. Measuring the regulations of the Charter against this law, we shall have to say: The regulations of the Charter deny the basis of this law; they anticipate the law of a world state. They are revolutionary. Perhaps, in the hopes ant yearnings of the nations, the future is theirs.
A lawyer, and only as such may I speak here, will merely have to establish that they are new-revolutionarily new. The laws regarding war and peace between states provided no room for then and could not do so. Thus they are criminal laws with retroactive force.
Now the French chief prosecutor-if I understand correctly- recognized the sovereignty of states in his profoundly moving speech and quite rightly saw that an unbridgeable gulf exists between the Charter and existing international law where it desires to see individuals punished as criminals for breach of international peace. He therefore transposes the Trial from the plane of international lay, to that of constitutional law. It might have happened that a German State would have settled accounts after the war with those people who were responsible for launching the war. Since the whole life of the German people is paralyzed today, those foreign powers, who jointly on the basis of treaties have territorial power in Germany are undertaking this settlement of accounts. The Charter has laid down the rules which are to guide the Court in its investigation and verdict.
We can leave the question open as to whether this concept is legally right or not. Even if it is right, our-question is not modified thereby. When looking at the problem from this point of view, no differently from that of international law, we must know how fat the Charter creates penal law with retroactive force. But we must now measure the regulations of the Charter not only against the international law which was Valid for Germany and was recast intc national law, as we say, but also against that national criminal
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law which was binding on the defendants at the time, of the deed. It is, after all, quite possible for a state, a member of the community of states, to be more cosmopolitan in its criminal law than actual international law. Some rule of the Charter, although new with regard to existing international law, may correspond to an already existing national law, so that it would not constitute criminal law with retroactive force. So how was the breach of peace between states-particularly the breach of nonaggression pacts-treated in that national criminal law to which the defendants were subject at the time of the preparation and launching of the war?
It is possible that in some state those people might be threatened with punishment who prepared or launched or waged a war in opposition to the international obligations of that state.(56) That would, it is true, be completely impractical, for the result of a war determines the internal settlement of accounts. No criminal court will threaten a victorious government, whereas, in case of defeat, the defeat itself provides the measure for such settlement. In any case the regulations of the Charter regarding punishment for breach of the peace between states are novel for the national criminal law to which the defendants were subject at the time of the deed. If one is not prepared to understand the phrase nulls poena sine lege previa as it is understood on the European continent, that is, as meaning that law in the sense of lex is a rule laid down by the state, a state law, but holds the opinion which-as far as I can see- is peculiar to English legal thinkers, that law in the sense of lex can also be a deeply rooted rule of ethics or morality, then we still have one question left: As things happened to be, did the defendants-formerly ministers, military leaders, directors of economy, heads of higher authorities-at the time of the deed feel, or could they even have felt that a behavior which is now made punishable by a retroactive law was originally in violation of their duty? The answer to this question cannot be given without insight auto the nature of the constitution of the German Reich at the moment of the deed.
The German Reich was incorporated into the community of states in the form and with the constitution which it happened to have at any given moment. Such is the case with every member of the community of states. The United States and the British Empire, the Union of Soviet Socialist Republics and the French Republic, Brazil and Switzerland, stand in the framework of the family of nations with such a constitution as they happen to have at the time.
The Prosecution, with full justification, has tried to convey a picture of this concrete legal structure of the Reich. Without trying
(56) Kelsen seems to think that no such state exists. (Collective and Individual Responsibility..., Page 643).
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to obtain such a picture, no one in this Trial will be able to arrive at a decision regarding right and wrong. In addition it seems to me that many ethical questions which have been raised here require such an endeavor to be made. However, I am afraid that with the picture presented by the Prosecution one will not come as close to the truth as is possible, notwithstanding the complex nature of the subject.
The Prosecution is based upon the conception of a conspiracy to conquer the world on the part of a few dozen criminals. The German State, if one looks upon things in this way, becomes a mere shadow or tool. But this State had long been in existence; no one could set aside the enormous weight of its history. A number of facts in its history, domestic and especially foreign, accounted for Hitler's rise to power or facilitated it for him, while there were other things in this history that guided, urged, limited, or restrained Hitler in his choice of aims and means, and helped to decide the success or failure of his measures and undertakings.
The Prosecution was certainly right in laying great stress on the so-called Fuehrer Principle. This Fuehrer Principle has, in fact, for the eyes and even more for the ears of the German people and of the world in general, been the organizational guiding principle in the development of the Reich constitution after 1933.
It has never been unambiguous, and it considerably changed in character during the course of the years. In human life leading and dominating present inherent contradictions. There exists one, as it were, soulless, mechanical way of directing mankind, which is to dominate, to rule by issuing commands; and there is another one, which is to precede by setting an example and being followed voluntarily, which is to lead or whatever one wishes to call it. This differentiation between two fundamentally different methods of directing men is often already complicated by the words used; in the German language, for instance this is so because "leading" is sometimes substituted for unconscious domination, while domination is occasionally called leading The differentiation is rendered even more difficult by the fact that leading may alternate with domination in relations between the same persons or by the fact that methods which are actually applicable to leading are used in dominating and vice versa. Every state has been, is, and will be, faced by the question of how it is to link up both these methods, so that they may complement, promote, and keep a check on each other. Both methods appear continually and everywhere. There has never yet been a truly dominating ruler who was not also a leader, although minor rulers are also subject to this law. And the Hitler regime did bring about-at least to begin with-a synthesis of both methods which had at least the appearance of being tremendously efficient.
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To this synthesis has been attributed-perhaps not unjustly- much of what the world registered with wonder, sometimes approvingly, but more often disapprovingly, as the result of an unheard of mobilization, concentration, and increase in the energies of a nation.
This remarkable synthesis of leading and dominating found its maximum expression in the person of Hitler himself, in his acts of leadership, for instance, in his speeches, and in his commands. Hitler's acts of leadership and commanding became the motive power of the German political life of that time. Above all, this phenomenon must be taken into correct account. It is of absolutely decisive importance in judging the enormous mass of facts which has been produced here. With all due caution, which is natural to men accustomed to think along scientific lines and imbues them with an almost unconquerable mistrust of any attempt to comprehend and evaluate events which have happened so recently, one is perhaps entitled to vouchsafe this assertion: In the course of the years Hitler accorded the act of command an increasingly favored place to the detriment of acts of leadership and finally brought it so much to the fore that commands, not the act of leadership, became the all-decisive factor. Hitler, the man of the people, became more and more the dictator. The speeches in which he repeated himself ad nauseas, for his most willing followers, and shrieked out, to the irritation even of the most faithful disciples, became rarer, while the legislative machine worked faster and faster. A later age will perhaps realize to what extent the great change in the attitude of the German people toward Hitler, which was beginning to show even before the war, was the cause or effect of this modification.
Whereas on a superficial question, that. is, the question as to how he wished to be designated, Hitler urged not to be called "Fuehrer and Reich Chancellor" any longer, but only "Fuehrer," the way in which the State was being governed was taking the exactly opposite path; leadership disappeared more and more, and there remained naked domination. The Fuehrer's orders became the central element of the German state edifice.
In the public hierarchy, this development was attended by an increase rather than a decrease in Hitler's power. The great majority of German civil servants and officers had seen nothing behind the organized leadership but a machinery of domination invested with a new label and, if possible, an even more bureaucratic nature functioning side by side with the inherited state machinery. When Hitler's orders became the Alpha and Omega, they felt themselves, so to speak, returned to the old familiar path. The queer and puzzling apparition had gone.
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They were back in their world of subordination. Nevertheless, this development had given the Fuehrer's orders a special aura of sanctity for them too; there was no contradicting the Fuehrer's orders. One could perhaps raise objections; but if the Fuehrer abided by his order, the matter was decided. His orders were something quite different from the orders of any official within the hierarchy under him.
Here we have the fundamental question in this Trial: What position did Hitler's orders occupy in the general order of Germany? Did they belong to the type of orders which were disallowed by the Charter of this Court as grounds for the exclusion of punishment?
It was perhaps harder for a lawyer who grew up in the habits of the state founded on law than for other people to witness the slow and then ever more rapid disintegration of that foundation of law supporting the state; he never came to feel at home in the new order and always remained half outside. Yet for that very reason he probably knows better than anyone else the peculiarities of this new order, and he may attempt to make them comprehensible.
State orders, whether they lay down law or decide individual cases, can always be measured not only against the existing written and unwritten law of the state concerned but also against the rules of international law, morality, and religion. Someone, even if only the conscience of the person giving the orders, will always ask whether the person giving the order did not perhaps order something which he had no right to order or whether he may not have formed and published his order by an inadmissible procedure. Now an unavoidable problem for all domination lies in this: Should or can it grant the members of its hierarchy, its civil servants and officers, the right-or even impose on them the duty-to examine at any time any order which demands obedience from them, to determine whether it is lawful and to decide accordingly whether to obey or refuse?
No form of rule which has appeared in history so far has given an affirmative answer to this question. Only certain members of the hierarchy were ever granted this right, and they were not granted it Without limits. Such was the case, for instance, under the extremely democratic constitution of the German Reich during the Weimar Republic, and it is again the case today under the occupation rule of the four great powers over Germany.
Insofar as no such right of examination is granted to members of the hierarchy, orders are binding upon them. All constitutional law, including that of modern states, provides for acts of state which must be respected by the authorities, even when defective. Certain acts constituting rules, certain decisions on individual cases which have acquired legal force, are held to be valid even when the person
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giving the order has exceeded his competency or made a mistake in form.
If only because the process of referring to a still superior order finally comes to an end, there must under every government exist orders that are binding on the members of the hierarchy under all circumstances, and therefore represent law to the of finials concerned, even though outsiders may find that they are defective as regards content or form when measured against the previous laws of the state concerned or against rules applying outside the state. For instance, in direct democracies, an order given as the result of a plebiscite of the nation is a fully valid rule or an absolutely binding decree. Rousseau knew how much the volonte de tons can be in contradiction to what is right, but he did not fail to appreciate that orders by volonte de tons are binding.
In indirect democracies the resolutions of a congress, a national assembly, or a parliament may have the same force.
In the partly direct, partly indirect democracy of the Weimar Constitution of the German Reich the laws resolved by a majority of the Reichstag large enough to modify the constitution and duly promulgated under all circumstances were binding upon all functionaries, including the independent courts of law, even though the legislator-willingly or unwillingly-might have violated rules not imposed by the state but by the Church or by the community of states. In the latter case the Reich would have been guilty of an international offense, since it would have failed to see to it that its legislation was in accordance with international law. It would, therefore, have been responsible under the international regulations regarding reparation for international offenses. But until the law concerned had been eliminated in accordance with the rules of German constitutional law, all of finials of the hierarchy would have had to obey it. No functionary would have had the right, let alone the duty, to examine its legally binding nature with the aim of obeying or refusing to obey it, depending on the result of this examination.
Things are no different in any other state in the world. It never has been and never can be din Brent. Every state has had the experience of seeing its ultimate orders, its supreme orders, which must be binding on the hierarchy if the authority of the state is to subsist at all, on occasion coming into conflict with rules not imposed by the state-to divine law, to natural law, and to the laws of reason. Good governments take pains to avoid such conflicts. To the great sorrow-indeed, to the despair-of many Germans, Hitler frequently brought about such conflicts. If only for this reason, his way of governing was not a good one, even though it was for several years successful in some spheres.
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One thing however must be said straight away: these conflicts never affected the entire nation or the entire hierarchy-at least not immediately-but always merely groups of the nation or individual offices of the hierarchy. It was only some of the people concerned t who were fundamentally affected, the bulk being only superficially involved-not to mention those conflicts that remained unknown to the overwhelming majority of the people and of the hierarchy, those orders, therefore, by which Hitler not only showed himself to be inhuman in individual instances but simply put himself outside the pale of what is human. Here is a purely academic question: Would Hitler's power have taken such deep root' would it have maintained itself, if these inhumanities had become known to wider sections of the people and of the hierarchy? There care be no answer: they did not.
Now in a state in which the entire power to make final decisions is concentrated in the hands of a single individual, the orders of this one man are absolutely binding on the members of the hierarchy. This individual is their sovereign, their legibus solutus, as was first formulated-as far as I can see-by French political science with as much logic as eloquence.
After all, the world is not faced by such a phenomenon for the first time. In former times it may even have appeared to be normal. In the modern world, a world of constitutions based on the separation of powers under the supervision of the people, absolute monocracy does not seem to be proper in principle. And though this may not yet be the case today, one day the world will know that the vast majority of intelligent Germans did not think any differently on this matter from the majority of intelligent people of other nations in and outside Europe.
Such absolutely monocratic constitutions can nevertheless come about as the result of events which no individual can grasp in their entirety, much less control at will.
This is what happened in Germany from the beginning of 1933 onward. This is what happened gradually, stage by stage, to the parliamentary Weimar Republic, which under Hindenburg was changed into a presidential republic, in a process which partly furthered the development by acts of state which stressed legal forms and which can be read in state documents, but partly simply formed the rules by accepted custom. The Reich law of 24 March 1933, by which the institution of Reich Government Laws was created, whereby the separation of powers in the sense in which it had been customary was, in practice, eliminated, was, according to the transcript of the Reichstag session, passed with a majority sufficient for altering the constitution. Doubts about the legality of the law have nevertheless been raised on the grounds
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that a section of the deputies elected had been prevented from attending the session by the police, while another section of the deputies who were present had been intimidated, so that only an apparent majority sufficient for altering the constitution had passed the law. It has even been said that no Reichstag, not even if everybody had been present and all of them had voted, could have abolished the fundamental constitutional principle of the separation of powers, since no constitution could legalize its suicide. We need not go into this. The institution of government laws became so firmly rooted as a result of undisputed practice that only a formal jurisprudence entirely cut off from the realities of life could have attempted to play off paragraphs against life and to ignore the constitutional change which had taken place. And for the same reason one's arguments are faulty if one chooses to ignore how the institution of government laws, that is, cabinet law, was later changed by custom into one of several forms in which the Fuehrer legislated. At the base of every state order, as of any order whatsoever, there lie habit and custom. From the time when Hitler became head of the State, practice quickly resulted in Hitler heading both the hierarchy and the whole people as the undisputed and indisputable possessor of all competency. The result of the development was, at any rate, that Hitler became the supreme legislator as well as the supreme author of individual orders.
He gained this position to some extent under the impression of the surprising successes-or what were considered successes-in Germany and abroad, especially during the course of the past war. Perhaps the German people, although with great differences between North and South, West and East, particularly easily falls a prey to actual power, particularly easily obeys by orders, particularly well conforms to the idea of a superior. Thus the whole process may have been rendered easier.
Finally, the only thing that was not quite clear was Hitler's relationship to the judiciary. For, even in Hitler Germany, it was not possible to exterminate the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the bulk of the people in their everyday life. Up to the top group of Party officials-this was shown by some of the speeches by the Reich Leader of jurists, the Defendant Dr. Frank, as quoted here-there showed resistance, which, it is true, was not very effective, when justice in civil and ordinary criminal cases was equally to be subjected to the sic vola sic jubeo of one man. But apart from the judiciary, which in the end also was beginning to succumb, absolute monocracy was complete. The Reichstag's pompous declaration about Hitler's legal position, dated 26 April 1942,(56a)
(56a) Compare Jahrreiss Plea. Annex Exhibit Number 42.
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was actually only the statement of what had become a fact long before. The Fuehrer's orders constituted law already a considerable time before this second World War.
In this state order the German Reich was treated as a partner by the other states, throughout the whole field of politics. In this connection I do not wish to stress the form ~ so impressive to the German people and so fatal to all opposition-which this treatment took in 1936 at the Olympic Games, a show which Hitler could not order the delegations of foreign nations to attend, as he ordered Germans to the Nuremberg Party Rally with its state displays. Rather would I wish to point out that the governments of the greatest nations in the world considered the word of this "all-powerful" man to be the final decision, incontestably valid for every German, and based their decisions on major questions on the very fact that Hitler's order was incontestable. To mention only the most striking cases, this fact was relied upon when the British Prime Minister, Mr. Neville Chamberlain, after the Munich Conference, displayed the famous peace paper when he landed at Croydon. This fact was pointed to when people went to war against the Reich as the barbaric despotism of this one man.
No political system has yet pleased all people who live under it or who feel its effects abroad. The German political system in the Hitler era displeased a particularly large and ever-increasing number of people at home and abroad. But that does not in any way alter the fact that it existed. Its existence was in part due to the recognition from abroad and to its effectiveness, which caused a British Prime Minister to make the now world-famous statement at a critical period, that democracies need two years longer than totalitarian governments to attain a certain goal. Only one who has lived in the outer cold and as though outcast among his own people amidst blindly believing masses, who idolized this man as infallible, can tell how firmly Hitler's power was anchored in the nameless and numberless following who held him capable of doing only what was good and right. They did not know him personally; he was for them what propaganda made of him, and this he was so uncompromisingly that everybody who saw him from close range and summed him up differently clearly realized that opposition was utterly pointless and, in the eyes of other people, did not even represent martyrdom.
Would it therefore not be a self-contradictory process if both the following assertions were to be applied at the same time in the rules governing this Trial? First, the Reich was the expression of the despotism of this one man and for that very reason a danger to the world. Secondly, every functionary had - the right-in fact the duty-to examine the orders of this man and to obey or not obey them, according to the result of this examination.
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The functionaries had neither the right nor the duty to examine the orders of the monocrat to determine their legality. For them these orders could never be illegal at all, with a single exception which will be discussed later-an exception which, when carefully examined, will be seen to be only an apparent one-namely, with the exception of those cases in which the monocrat placed himself, according to the indisputable axioms of our times, outside every human order and in which a genuine question of right or wrong did not arise, so that no genuine examination was called for, either.
Hitler's will was the final authority for their considerations on what to do and what not to do. The Fuehrer's order cut off every discussion. Thus a person who as a functionary of the hierarchy invokes an order by the Fuehrer is not trying to claim exemption from punishment for an illegal action but opposes the assertion that his conduct was illegal; for it is his contention that the order with which he complied was legally unassailable.
Only a person with full comprehension of this can have a conception of the hard inner struggles which so many German officials had to fight out in these years in the face of many a decree or resolution of Hitler's. For them such cases were not a question or a conflict between right and wrong; disputes about legality sank into insignificance. For them the problem was one of legitimacy; as time went on, human and divine law opposed each other ever more strongly and frequently.
Whatever the Charter means by the orders which it rejects as grounds for exemption from punishment, can this be meant to apply to the Fuehrer's orders? Can they come within the meaning of this rule? Must one not accept this order for what it was according to the interior German constitution as it had grown, a constitution explicitly or implicitly recognized by the community of states? Many Germans disapproved of Hitler's position of power from the very beginning; and to many Germans, who welcomed it at first because they yearned for clear and quick decisions, it later became repugnant. But that in no way affects the following: Must not those people who did their duty in the hierarchy, willingly or unwillingly, in accordance with the constitution, feel that an injustice is being done to them if they were sentenced because of a deed or an omission which was ordered by the Fuehrer?
A community of states might refuse to accept or tolerate as members such states as have a despotic constitution. Yet up to now this has never been the case. If it is to be different in the future, the nondespotic powers must take the necessary steps to prevent any member of the family of states turning into a despotic power and to prevent any despotic power from entering the family circle from outside. Today people are realizing more and more clearly that this
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is the crux of our question. The circumstances must be very special ones if a modern people is to let itself be governed despotically, ever. when as well-disciplined as the German people. But wherever such circumstances do exist, no domestic countermeasures are of avail In that eventuality only the outside world can help. If, instead, the outside world prefers to recognize this constitution, it is impossible to see where successful domestic resistance can spring from. In pointing to these special circumstances and to the recognition by the outside world, we are drawing attention to facts for the existence of which, to take our case, no German was responsible but which cannot be ignored when the question is asked how all this was possible.
Attention must also be drawn to certain further facts without knowledge of which one cannot fully grasp the fact that Hitler's absolute monocracy was able to establish such a terribly firm hold. Hitler combined in his person all the powers of issuing legislative and administrative orders of a supreme character, orders which could not be questioned and were absolutely valid; but immediately below him the power of the state was divided up into a vast mass of spheres of competence. The dividing lines between these spheres, however' were not always sharply drawn. In a modern state, particularly in major states of our technical era, this cannot be avoided. The tendency to exaggerate questions of competency is certainly no less marked in Germany than in any other country. This certainly facilitated the erection of barriers between the departments. Every department was jealously watching to see that no other trespassed into its field. Everywhere it was prepared for tendencies of other departments toward expansion. Considering the great mass of tasks which the so-called "totalitarian" state had heaped upon itself, cases where two or three departments were competent for the same matter could not be avoided. Conflicts between departments were inevitable. If a conspiracy existed, as the Indictment assumes, the conspirators were remarkably incompetent organizers. Instead of co-operating and going through thick and thin together, they fought one another. Instead of a conspiracy we would seem to have had more of a "dispiracy." The history of the jealousy and mistrust among the powerful figures under Hitler has still to be written. Now let us remember that in the relations between all departments and within each department, people surrounded themselves with ever increasing secrecy; between departments and within each department, between ranks and within the various ranks, more and more matters were classed as "secret." Never before has there been so much "public life," that is, nonprivate life in Germany as under Hitler; and also never before was public life so screened off from the people, particularly from the individual members of the hierarchy themselves, as under Hitler.
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The single supreme will became, quite simply, technically indispensable. It became the mechanical connecting link for the whole. A functionary who met with objections or even resistance to one of his orders on the part of other functionaries only needed to refer to an order by the Fuehrer to get his way. For this reason many, very many, among those Germans who felt Hitler's regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety to the time when this man would disappear from the scene. For what would happen when this connecting link disappeared? It was a vicious circle.
I again stress the fact that an order by the Fuehrer was binding- and indeed legally binding-on the person to whom it was given, even if the directive was contrary to international law or to other traditional values.
But was there really no limit? During the first period, at any rate, that is, just at the time when the foundations of power were being laid, at the time when the monocratic constitution was being developed step by step, Hitler's followers among the people saw in their Fuehrer a man close to the people, an unselfish, almost superhumanly intuitive and clear-thinking pilot and believed only the best of him; they had only one worry: Was he also choosing the right men for his assistants, and was he always aware of what they were doing? The tremendous power, the unlimited authority were vested in this Hitler. As in every state, this might include harsh orders. But it was never intended as giving full power to be inhuman. Here lies the boundary line; but this line has at no time and nowhere been quite clearly drawn. Today the German people are utterly torn in their opinions, feelings, and intentions; but they are probably in agreement on one thing, with very few exceptions: As accusers, they would not wish to draw this line with less severity than other people do toward their leaders. Beyond that line, Hitler's order constituted no legal justification.
It must not be forgotten, however, that this line is not only vague by nature but also follows a different course in peace than in wartime, when so many values are changed and when men of all nations, especially in our days, take pride in deeds which would horrify them at any other time. And the decision to wage war does not in itself overstep that line,' in spite of its tremendous consequences-not with any nation in the world.
Hitler himself, at any rate, did not recognize this boundary line of inhumanity, of nonhumanity, as a limit to obedience in his relations with his subordinates; and here again opposition would have been considered a crime worthy of death in the eyes and judgment of this man, invested as he was with limitless power and controlling an irresistible machine. What should a man
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who received an order exceeding the line have done? What a terrible situation! The reply given in Greek tragedy, the reply by Antigone in such a conflict cannot be imposed. It would shout scant knowledge of the world to expect it, let alone demand it, as a mass phenomenon.
Before we come to the specific question of who in the Reich possessed the power of deciding on war and peace, one more word remains to be said about the forms which Hitler's orders assumed.
Hitler's orders are solely the decisions of this one man, whether they were given orally or in writing and, in the latter case, whether they were clothed in more or less ceremony. There are some orders by Hitler which can be recognized as such immediately. They are called "Erlass" (decree), such as the decree concerning the institution of the Protectorate of Bohemia and Moravia of 16 March 1939; or "Verordnung" [order), like the order for the execution of the Four Year Plan of 19 October 1936; or "Weisung" (directive), like the strategic decisions so often cited during this Trial; or simply "Beschluss" (decision) or "Anordnung" (instructions). Often they are signed in Hitler's name only; sometimes we find the signatures of one or more of the highest civil or military functionaries as well. But it would be fundamentally wrong to assume that this was a case of countersignature as understood in the modern democratic constitutional law of nations ruled constitutionally or by a parliament -of a countersignature which makes the signatory responsible to a parliament or to a state court of law. Hitler's orders were his own orders and only his own orders. He was much too fanatical a champion of the one-man doctrine, that is, of the principle that every decision must be made by one and only one man even to consider anything else, especially in the case of his own decisions. We will leave his high opinion of himself entirely aside in this connection. Whatever the more or less decorative significance of such countersigning may have been, there was never any doubt that the Fuehrer's orders represented nothing but his own decision.
Special attention must be drawn to those laws which appeared as Reich Cabinet Laws or Reichstag Laws. Hitler's signing of a law of the Reich Cabinet represented the formal certification of a Cabinet decision. In actual fact, however, a stage was reached where the Reich Cabinet Laws were also merely decisions by Hitler, who had previously given some of his ministers the opportunity to state the opinion of their departments. And when Hitler signed a law which, according to its preamble, had been decreed by the Reichstag, this was again only a case of a formal certification. In reality, however, it was a decision by Hitler. From November 1933 onward, at the latest, the German Reichstag was no longer a parliament but merely an assembly for the acclamation of Hitler's
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declarations or decisions. These scenes of legislation appeared to many people at home and abroad to amount almost to an attempt to make democratic forms of legislation ridiculous by caricaturing them; nobody, either at home or abroad, regarded them as proceedings during which art assembly of several hundred men arrived at a decision after consideration, speeches, and counterspeeches.
There exist, however, also orders by Hitler which are not signed by him but which can immediately be recognized as his orders. They are drawn up by a Reich Minister or some other high functionary, who states in the introduction "The Fuehrer has ordered" or "the Fuehrer has decreed." This is not an order by the signatory, but a report by the signatory on an order given orally by Hitler. The orders by Hitler as Supreme Commander of the Armed Forces were thus often clothed in the form of such a report.
Finally there are orders by Hitler which can only be recognized as such by a member of the public if he possesses knowledge of the constitutional position. When the High Command of the Armed Forces (OKW) issues an order, it is always an order by Hitler; Hitler himself, together with his working staff, was the OKW. The power to issue OKW orders rested solely with Hitler.
By my explanations regarding the constitution of the Hitler Reich, I have already-as it were by implication-dealt with the question as to who was responsible for the ultimate decisions, for this state's decisions regarding fundamental questions of existence, especially for the decision about war and peace. Kelsen said-in his great treatise of the year 1943,(57) which I have already mentioned above-"probably the Fuehrer alone." We shall have to say: quite definitely alone.
Under the Weimar Constitution the sole body responsible was the Reich legislature, for Article 45 demands a Reich Law for a declaration of war and for the conclusion of peace. And a Reich Law could be passed only by the Reichstag or by a vote of the German people. Neither the Reich President, that is, the head of the State, nor the Reich Cabinet had the power. They might, at most, have created such circumstances by acts lying within their jurisdiction-possibly the Reich President as Commander-in-Chief of the Armed Forces-so as to give the Reich legislature no option in its decision; a problem which, as far as I know, became a tangible one in the United States with regard to the relationship of the President to Congress and was therefore seriously discussed, while it was never a tangible one for the Germany of the Weimar Constitution. If, however, the Reich legislature had by means of a law taken the decision to wage war, the Reich President and the whole State hierarchy, particularly the Armed Forces, would have been bound
(57) Kelsen, Collective and Individual Responsibility, Page 546.
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by this decision with no right of examination, let alone of objection, even if all the experts on international law in the world had regarded the law as contrary to international law. The Weimar democracy could not have tolerated, any more than any other nation, a state of affairs in which military leaders as such could examine the decision to wage war taken by the political leaders, in the sense that they could refuse obedience if they saw fit. The military means of power must remain at the disposal of the political leaders of a state. Otherwise they are not means of power at all. That has always been so. And it will have to be so all the more if the duty to give assistance against aggression is really to apply among the nations.
I have already shown how, in the course of a gradual transformation which laid particular emphasis on legal forms, Hitler replaced all the highest authorities of the Weimar period and combined all the highest competencies in his own person. His orders were law.
The circumstances in a state can be such that the man who is legally the only one competent for the decision on war and peace, may have, in practice, no-or not the sole-authority. If, however, both the sole legal competence and the sole authority in actual practice have ever been coincidental in any state, then such was the case in Hitler Germany. And if, in any question, Hitler did ever go as far as to accept the advice of a third party, then that was certainly not the case in the question of war or peace. He was the arbiter of war and peace between the Reich and other nations-he alone.
I conclude: Sentences against individuals for breach of the peace between states would be something completely new under the aspect of law, something revolutionarily new. It makes no difference whether we view the matter from the point of view of the British or the French chief prosecutors.
Sentences against individuals for breach of the peace between states presuppose other laws than those in force when the actions laid before this Tribunal took place.
The legal question of guilt-and I am here only concerned with that-is thus posed in its full complexity for not one of the defendants could have held even one of the two views of the legal world constitution, on which the chief prosecutors base their arguments.
THE PRESIDENT: Dr. Sauter, could we take up the time between now and 1 o'clock in dealing with that letter, if you have it now? And possibly Dr. Exner also has his letter.
DR. SAUTER: The Defendant Walter Funk was questioned here as a witness under oath. After his examination, he told me that on one point his testimony was not quite correct; and he asked me to
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correct his testimony on this point, since he himself had no opportunity to do so. On 17 June 1946 I wrote the following letter to the President of the International Military Tribunal, which is signed by defendant's counsel Dr. Sauter as well as by the Defendant Walter Funk personally. I shall read the text of the letter:
"Re: Penal case against Walter Funk; correction of the testimony.
"The Defendant Walter Funk in his cross-examination on 7 May said that he"-that is, Funk-"heard only through Vice President Puhl of a deposit of the SS at the Reichsbank. The witness, Emil Puhl, when he was examined, testified that it was Funk who had spoken with the Reichsfuehrer SS Himmler and he"-that is, Puhl-"was then informed by Funk about the deposit to be set up. From the statements of the witness Emil Puhl the Defendant Funk reached the conclusion that, in fact, on this point, the statement of the witness Emil Puhl is correct; and after some consideration, the Defendant Funk believed that he could recall that it was he, Funk, to whom Reichsfuehrer SS Himmler first applied concerning the establishment of a deposit for the SS and that he then informed Vice President Puhl about this matter.
"The statement by the Defendant Funk under cross-examination was due to faulty recollection, because of the fact that these cross-examination questions of the Prosecution had completely surprised and greatly disturbed Funk. Immediately after the examination of the witness Puhl, Funk informed me of his mistake and asked me to correct his factually incorrect statement on this point, since he himself would have no opportunity to do so.
"I put forward this request of the Defendant Funk, and I take the liberty of informing the President of the correct state of affairs. The Defendant Funk agrees with this correction by cosigning this letter."
Then there are the two signatures, "Walter Funk" and "Dr. Sauter." That is the content of the letter, which I sent on 17 June 1946, to the President to correct the testimony of Funk.
THE PRESIDENT: Thank you, Dr. Sauter.
Dr. Exner, have you got your letter so that you can read it?
PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): Mr. President, I was downstairs in the General Secretary's office, and I was promised it at 1:30, but I have not yet received it. I am sorry; at the moment I am not in a position to fulfill your request. THE PRESIDENT: You probably will have it at 2 o'clock.
[The Tribunal recessed until 1400 hours.]
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Editor's Note: In respect to the presentation of the final pleas by Counsel for the Defense, the Tribunal in several instances directed that written speeches of excessive length be shortened for oral presentation in Court and that notice would be taken by the Tribunal of the paragraphs omitted. In the sessions to follow suck have been reproduced in small type.
DR. EXNER: Mr. President, I shall read the letter dated 22 June 1946, sent to the International Military Tribunal:
"During the cross-examination on 6 June 1946, the British Prosecution presented Document C-139 to the Defendant Jodl, obviously thinking that the document showed evidence of preparatory measures for occupying the Rhineland as early as 2 May 1935..."
[The proceedings were interrupted by technical difficulties in the interpreting system.]
THE PRESIDENT: Go on, Dr. Exner.
". . .the Defendant Jodl has stated that he did not know the document. After looking through the document, he explained that it is quite obvious from the document that in the West, at any rate, there was no plan for any German action, but that definitely only defensive measures were considered. He did not discover where the 'Operation Training' was supposed to take place; he could only guess.
"Defendant Freiherr van Neurath has now informed him that in 1934, during the summer, Mussolini had stationed several divisions at the Brenner Pass in order to occupy the North Tyrol in the event of the Anschluss. The Defendant Jodl, after receiving this information, perused the document again, and he now imagines that according to this document an operation was to be prepared to thrust the Italians back across the Brenner Pass in the event of their marching in. But he knows nothing about this affair.
"The entire matter has nothing at all to do with the Defendant Jodl, and for that reason I shall not refer to it during this session. He is extremely anxious, however, that it should not appear as if he had attempted to conceal anything."
It is signed "Dr. Exner," and "Jodl."
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THE PRESIDENT: Very well.
Now I call on Dr. Stahmer.
DR. STAHMER: Mr. President, to begin with, I should like to remark that I have still to complete the Case Katyn. The Case Katyn could not be incorporated into the book which has been submitted to the Tribunal, because the hearing of the evidence only took place on Monday and the day before yesterday. I shall have to present it, therefore, without its being in the book. It is only a brief presentation, and the interpreters will receive copies of my draft. Unfortunately, however, I cannot submit a translation to the Tribunal at the moment, as the hearing of the evidence was concluded only the day before yesterday and I could not work on it before. I shall add this at a suitable moment, and I hope that in spite of this I shall be finished within the time I mentioned.
[The proceedings were interrupted by technical difficulties in the interpreting system.]
THE PRESIDENT: Is that all right now? Go on, Dr. Stahmer.
DR. STAHMER: When I mentioned the time I should require I could not take into account the Katyn Case. Nevertheless, I hope that I shall be able to finish in the time which I have stated, as I am shortening the report in some places and I believe I shall have sufficient time.
May it please the Tribunal: This Trial, of truly historical and political importance, and of great significance in shaping new laws, is of dimensions such as have not been known hitherto in the history of law; these proceedings which concern not only the defendants present in the Court, but which are of the greatest importance to the entire German people, are now entering upon a new phase.
The Defense takes the floor.
The position of the Defense in these proceedings is especially difficult; for there is an all too unequal distribution of strength between the Prosecution and the Defense.
Months before the start of the Trial the Prosecution was in a position to search all offices and archives in Germany and abroad with a large staff of experienced collaborators, as well as to examine witnesses in all countries. Thus they were able to submit to the Tribunal an immense amount of evidence.
The difficult position of the Defense is further aggravated by the fact that in the Anglo-American procedure on which this Trial is based there is a clause missing which is contained in the German criminal procedure according to which the Prosecution is also bound to procure and submit evidence exonerating the accused...
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THE PRESIDENT: Dr. Stahmer, let me tell you that the statement you have just made is entirely inaccurate. There is no such thing as an English code of criminal procedure, but it is the universal practice for the Prosecution to disclose to the Defense any document and any witness who assists the Defense and therefore your statement is entirely false-and I believe that same practice obtains in the United States.
And as for what you say here about the Defense being under any unfair difficulties as compared with the Prosecution, that also is entirely inaccurate because I feel certain that the Prosecution in this case have observed the same rules that would have been observed in England and would have disclosed to the Defense any document or any witness over whom they had control who would assist the Defense, and there have been various occasions on which the Prosecution have disclosed in this case to the Defense documents which have been supplied to them, which appeared to them to help the Defense.
Every document which has been put in by the Defense in this case-or practically every document-has been procured for them after great efforts by the Prosecution, and investigations have been made all over Germany and, I may say, almost all over the world in order to help the Defense in this case.
DR. STAHMER: Thank you for your instruction, Mr. President.
After the reading of the Indictment, Reich Marshal Goering, in reply to the question of the presiding judge as to whether he pleaded guilty or not guilty, declared, "Not guilty in the sense of the Indictment." This statement of the accused necessitates an examination of all the charges made by the Prosecution.
The accused has, of course, already during his personal examination dealt with many questions which are of considerable importance for his defense. He expressed his opinion in detail with regard to political and military developments and exhaustively described the motives for his actions, and the origin and course of events.
I am thankful to the High Tribunal for permitting the accused to portray matters to the total extent to which he saw, felt, and experienced them, for only such direct personal portrayal can afford good insight into the attitude of the accused, thus making it possible to obtain a reliable opinion of his personality. This knowledge is absolutely necessary if the Tribunal is to come to a decision which is not only in harmony with objective law, but which also renders the maximum of justice to the individuality of the perpetrator.
I do not consider it necessary-after the accused was heard so exhaustively on all particulars-to deal with every question to
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which he has already given the requisite explanation. For this reason I can limit the defense to the following statements:
We are in a transitory period of history of the greatest significance. An age is coming to an end which has been known less for its concept of order than for its concept of liberty. This striving for liberty released tremendous forces-so gigantic that in the end it was impossible to master them' The tremendous progress this era has unquestionably made in scientific and technical spheres we have dearly paid for with the shattering of all human order and the loss of peace in the entire world.
So far the profound reasons for such a disastrous development have hardly been discussed in this Court. But in order to under
stand properly the grave crimes and aberrations which are indicted here it is imperative to throw some light on the historical background.
The French chief prosecutor has already pointed out that the roots of National Socialism are to be found in a period far removed from us. He goes back to the beginning of the last century. He sees the first step to a leading astray of the German character in Fichte's Reden an die deutsche Nation (Speeches to the German Nation). Fichte preached the doctrine of Pan-Germanism, he says, insofar as he wanted to see the world planned and organized by others, just as he himself saw it and would have liked it to be shaped. I cannot understand how this can be taken to express more than the universal human desire to take part in the shaping of a common destiny. Only the methods of such attempts to participate may, at times, be justly criticized.
A Swiss assertion, which also perceives in Fichte the cause of Germany's going astray, seems to me to be clarifying in this respect. It does not, however accuse him of Pan-Germanism, that is, of the will to subjugate foreign peoples but rather reproaches him for having attempted at all to unite the Germans into one nation. It contends that this was an inadmissible attempt to imitate the French and British, whereas it would have been more suited to the German character to remain a nation made up of different peoples. For only as such could it have continued its historical mission of remaining the nucleus of a European federation. Judging by Fichte alone the development is therefore not so easily interpreted.
If one wishes to think historically, one cannot simply fall back on Fichte. For his Reden an die deutsche Nation was only an answer to the "Call to Everyone" which the French Revolution had sent out into the world, and they were directly provoked by the appearance of Napoleon I. One must go back over the chain of causes and effects to their very beginning. This, the beginning of a national and personal striving for liberty which has characterized the whole of modern times, we find in the Middle Ages.
The colorful play of national and imperial tendencies and struggles which had been the hallmark of ancient times was overcome by the conception of one eternal and omnipotent Christian
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Church. With this a static order superseded the dynamic forces of the time, an order which according to the doctrine of the Church was created by the Lord himself and was therefore by "the grace of God." It strove to embrace all humans, and to lead them to peace and rest. It was the teachers of the Church in the Middle Ages who first ventured to subject war to the principles of law. Prior to that it was accepted as a natural phenomenon, like sickness or bad weather, and was often looked upon as a judgment of God. Men like St. Augustine and Thomas Aquinas opposed this conception and declared that one must differentiate between a just and an unjust war. They did this upon the basis and within the framework of a Christian belief, by which God had entrusted mankind with the fulfillment of a moral world order to bind one and all; an order which would provide the answer to the question of the righteousness or unrighteousness of a war.
When by the advent of the Renaissance and the Reformation the spiritual basis of the medieval order was shaken, this development into a universal world peace was reversed. Life, formerly tending toward stagnation and tranquillity, now turned into a torrent which, as it swept ever faster through the centuries, gradually swelled to the present catastrophe. The individual, thirsting for freedom, cast off the shackles of Church and class distinction. The State, declaring itself sovereign, violated the universal order of God as represented by the Church. Not recognizing any superior power, it began to conquer as much living space as it could on this earth, unless the stronger will of another nation did not impose any natural barriers. Peace hence existed only in the naturally rather unstable equilibrium of powers obeying only their own laws.
Thus there came into existence world empires such as the British Empire, Russia, the United States, and the enormous French colonial empire, which as living space today comprise more than one half of the surface of the entire world.
The theory of war as a crime, created by Grotius, the teacher of international law quoted by the Prosecution, failed because it was incompatible with the dynamic power of this time. It represents, as we know, only an attempt to keep alive through secular arguments the aforementioned Christian concept of warfare. One cannot, however, derive justice from simple nature, for it knows no other measure than brute force, and always decides in favor of the stronger. Only metaphysically can justice be defined as an independent force set above natural impulses. Therefore the theory of Grotius necessarily petered out in the eighteenth century since, thinking in a purely worldly sense, it could not find a criterion for a just war.
This development from the old order to new liberty, in other words, the fight of all against all, found its climax and culminating point in the great French Revolution. By attempting to set human intellect upon the throne of
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God, they reached the apex of secularization. Human intellect, however, proved unable to balance the convicting ideals of liberty, equality, and brotherliness, that is, to practice true justice.
From that time on the search for true justice stirs the world. All socialist theories are merely attempts at solving this problem. After having been disappointed by the disadvantages of too much liberty, mankind once again seeks security and order. Some wish to return to the Christian truth of God, while others want to proceed in order yet to solve the problem through human intellect.
The National Socialists, whose most revolutionary leaders wanted to go further backward, and at the same time forward to deification of life itself in a biological-political sense, have been conquered and eliminated. Yet no solution of the problems of world order has hitherto been found. The victorious powers hope to arrive at it, however, in drawing a line between themselves and the vanquished by jointly indicting and punishing them as criminals.
From whence, however, will they take the standard by which to define justice and injustice in a legal sense? Insofar as such standards exist by international law as applied up to now, no further statements are required. That a special Court for the Trial was created by the Charter of this Tribunal I will not object to. I must, however, protest against its use, insofar as it is meant to create new material law by threatening punishment for crimes which, at the time of their perpetration, at least as far as individuals are concerned, did not carry any punishment.
One cannot, by an arbitrary act, suddenly create new law when, after centuries of revolutionary development, the old universal principles of medieval law have been gradually abolished and the autonomous thinking of the individual in the moral field has opened gate and door to anarchy. As we know, the very cause of the general state of anarchy in the sphere of justice, from which originated the crimes that are the subject of the accusation here, was the fact that people had forgotten to differentiate between might and justice. The success of so many revolutions over once legitimate rulers "by the grace of God" has shown that might apparently goes before right and that the latter can be changed at will. By what would it then be possible to tell what is right except through the force with which it is able to assert itself and hold its own? This relativity of law which had come about, this positivism of law, no longer concerned itself with a moral justification of law.
Can one expect that punishment will be recognized as just, if the culprit was unable to foresee any punishment because at the time he was not threatened thereby, and therefore believed himself able to derive the authorization for his way of acting solely from the political aims pursued? Of what help is reference to the ethical laws, if such must first be found again? According to Justice Jackson's opinion, however, the Nazi Government from the start was never the representative of a legitimate state which had pursued the legitimate aims of a member of the international community. Only from such an attitude can the Indictment for conspiracy be understood, which will be discussed later. In fact this Indictment, as the entire argumentation of Justice Jackson,
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is far ahead of its time. For there were no internationally recognized standards according to which-outside of positive international law-the legitimacy of states and their aims could have been judged, nor was there an international community as such. Slogans about the legitimacy of one's own and of the illegitimacy of foreign aspirations served only the formation of political fronts, just as did the efforts to brand political adversaries as disturbers of the peace. Whatever they did, they certainly did not create law.
Justice Jackson correctly declared that it would have been possible for the conquerors to deal with the conquered as they saw fit. But, said he, nondiscriminatory punishments without a final and fair establishment of guilt would be a breach of promises repeatedly given and would be a heavy burden on America's conscience. For that reason he himself proposed judicial proceedings which were to differ from ordinary criminal proceedings by not admitting the usual tactics of obstruction and delay by the defendants. However, an establishment of guilt was to be arrived at on the basis of a just and fair trial. If the defendants were the first leaders of a conquered nation which had to answer before the law, they were also the first ones to whom the opportunity was to be given to defend their lives "in the name of justice."
If this phrase is to have a meaning, then it must also be of significance for the interpretation of the Charter, because it would not be reasonable if the Court were obliged to rest exclusively upon the Charter without taking into consideration the convictions of others with regard to law. In that case the judgment would represent a mere dictate of force, against which there would be no defense "in the name of justice."
The Charter may therefore be applied by the Court only insofar as its decrees are justifiable in all conscience, not only formally but also materially. The Charter itself says that nobody shall be excused for a violation of its decrees on the grounds of orders from his government or from a superior. In that case it must apply this, its own logic, also to itself, by allowing the judge to examine the congruence of its prescripts with the general principles of legal concept. For a judge, after all, is far more free and independent of the legislator than a subordinate of his superior, or a subject of his dictator.
Then there is another question, namely, whether the decrees of the Charter are really so much in opposition to the previous and ordinary state of law, especially as to the fundamental ideas of all rules of law, that the Court cannot acknowledge them as right or apply them. In practice, the most serious problem consists in deciding which should have precedence in the case of conflict-the Charter or the legal maxim nulls poena sine lege.
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An attempt has been made to justify disregard of this rule in this specific instance with the highly political character of the Trial. Such a justification, however, cannot possibly be accepted. The political significance of a trial is usually apparent from its consequences rather than during the course of the procedure and through the influence exercised upon the legal norms to be applied. A judge should administer law, and not deal in politics. Still less is he called upon to rectify mistakes made by the politicians. Punishment, the establishment of which in due time was neglected, may only be meted out by him on the strength of a subsequent law if he would have done so in any case.
Basically, the principle of the division of power is presumably to be maintained. By this principle Montesquieu divided the originally united power of the absolute king into legislative, administrative, and judiciary. The three different forms of expression of state domination were to have equal importance, counterbalance each other, and so aid in controlling one another. This system of the division of power characterizes the modern constitutional state. Straining the point somewhat, one might define the field of activities and competency of the three different forms of expression of sovereign authority by stating that the legislature has to deal with the future, the administration with the present, and the judiciary with the past. The legislature sets the standards to which life is to conform. From time to time these must be changed in accordance with the changed way of living. But until then they must remain valid.
Insofar as a mere establishment of norms of life is not sufficient it will be shaped, as the case arises, by the administration. Administration itself is bound by certain norms, but on principle is free to move within the lawful bounds of its good judgment, so as to be able to respond to the daily changing needs. Just as for the law-making politician, the idea of serving a purpose is its main consideration.
The judge, on the other hand, may not decide according to the usefulness, but should decide according to the law. In general, it is not his task to shape, but to judge. He has to pass judgment on actions after they have been committed, and examine conditions after they have arisen in the light of whether and to what extent they corresponded to the standards, or what juridical consequences they have brought about. Therefore, as a matter of principle, his view is directed toward the past. In the life of the state, which is continuously inspired by politicians looking to the future, he is the restraining counterpole.
Although bound by the laws decreed by the politician, he is not merely an executive organ. On the contrary, he should control the
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legislator by re-examining the laws with regard to their conformity to the constitution. This, logically, ought to include the examination of whether the principle of the division of power was maintained, because just as the judge may judge only de lege lata and must leave the decisions de lege ferenda to the legislator, the latter in turn is obliged to refrain from interfering with the former's competency by making laws with retroactive power.
The criticism of the administration of justice by the National Socialist State is mainly based on its having abandoned the division of power. By putting at the top the political Leadership Principle, the Fuehrerprinzip, it interfered dictatorially with the competency of the judges. By means of the Police, that is, the administration, it arrested and imprisoned people without judicial warrant of arrest, simply for reasons of political prevention, and even rearrested those who had been acquitted by the judge and set free. On the other hand, for political reasons convicted criminals were withdrawn from the hands of justice. Thereby, quite naturally, the sureness and clarity of the law were seriously endangered.
But not even this National Socialist State dared renounce outright the principle nu1la poena sine 1ege praevia. In its police measures It dispensed with their justification by the judge exactly as today the execution of denazification sentences was justly not placed under the jurisdiction of the Ministry of Justice by the Regional Council of the American Zone, on the grounds of being "alien to justice." By three laws, however, the National Socialist State decreed an increase in the scope of punishment previously in force with retroactive validity, but they did not provide penalties for acts hitherto unpunishable. More particularly, this was not brought about by the fact that by Article 2a of the Criminal Code the possibility of criminal analogy was created, because by this article a threat of punishment only was created, although not retroactively; and everybody was enabled to conform.
A certain degree of protection against arbitrary judgments and The splitting-up of law lay in the fact that the National Socialist State was based on a specific ideology by which the judge was bound. Concerning the close connection between finding of justice and ideology the Swiss professor of law, Hans Fehr, of Berne, already in 1927 wrote in his book, Recht und Wirklichkeit; Einblick in Werden and Vergehen der Rechtsformen: "Without ideology law floats in a vacuum.... Whoever has no ideology can have no sense of right and wrong..."
Fehr showed that every judge, as far as the law allows him latitude judges individually according to his ideology. In an era of liberal freedom of ideology this naturally brought forth a danger for the uniformity and sureness of the law. Therefore the liberal state in particular had to make its criminal court judges conform closely to the codified substance in each case and forbid them to employ analogies. Fehr already pointed out the danger inherent in such judgment based on codified substance, tending to give undue preponderance to the act over the perpetrator. Following the lines of a dynamic jurisprudence, the liberal school of legal conception, he therefore advocated an extension of the judge's authority to create law.
In that sense, as will be understood from the above, the nonliberal states directed by a. definite ideology had taken the lead. The Soviet Union after the Marxists had already long ago rejected the liberal, allegedly objective,
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jurisdiction as "bourgeois class justice," was the first introduce a proletarian class justice which deliberately abandoned the idea of the equality of all before the law. The National Socialists, according to their racial ideology, followed suit by forming the thesis, "Right is what serves the people, wrong is what injures it." Inside such a solid ideological frame the dangers of criminal analogy, which were still further narrowed clown by Article 2a of the Criminal Code, dwindled considerably.
In contrast to this, no fixed ideological base as a foundation for the Charter is discernible. Since its signatories stand on very different ideological ground we will have to proceed, as in the international law valid hitherto, from the liberal idea of freedom of ideology. Therefore the legal thesis nulla poena sine lege should be especially sacred to it. This is also proven by the fact that the Control Council for Germany, by abolishing the criminal analogy of Article 2a of the Criminal Code, brought the above maxim back again to all Germans most emphatically.
It would be all the more unintelligible and intolerable for the German sense of justice if this phrase were not to apply to Germans accused of War Crimes. In itself the Charter is an exceptional law by the mere fact that it was created only against members of the Axis Powers and based on an agreement made for one year and subject to notice. If, in addition, it should abolish the maxim nu1la poena sine lege praevia, specifically for actions that were not only within the scope of German legality, but under most severe penalties had even been made a duty by the Government of the sovereign German State, then all understanding would cease- for the interpretation that the Court is bound by the Charter.
Nor is an examination of the political aims connected with the Charter of any assistance. Justice Jackson has called the Charter and the Trial a step toward "creating a juridical guarantee that he who starts a war will pay for it personally." The American commentator Walter Lippmann stated elsewhere that the system of collective security for the prevention of wars had broken down because nobody was prepared to declare war on the country breaking the peace in order to help prevent a war which did not directly affect them.
The means for combating the disease of war would have been just as bad as the disease itself. In consequence of the fiasco of the collective methods the conception of basing security in the future upon holding responsible those individual persons accountable for breaking the peace was evolved by the enemies of Germany in the last war. And this finally led to the Nuremberg Trial. Taking one's starting point from this fact, today one might say: During this second World War revolutionary developments have taken place; it has driven humanity beyond the bounds of what was the modern age until a short time ago. The first but essential steps to create a world state have been made.
The way to peace, as shown here, will be welcomed on principle, although one will still doubt its absolute reliability. Justice Jackson himself has expressed doubts whether punishment will serve to intimidate and thus help prevent breaking the peace in the future.
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Only somebody certain of victory will decide to wage a war and thus will not seriously consider punishment, which would reach him only in the case of defeat. Therefore the educational issue of this Trial, namely, to strengthen the sense of justice, seems more important than the effect of intimidation, which can also be achieved by warning for the future. The politician will have to learn that the principle of division of power will have to be observed by him, too, and that he will not find a judge willing subsequently to condone his mistakes, because he will also punish him on the basis of subsequent laws. Confidence in international jurisdiction, which today still suffers from a suspicion of being easily misused for political purposes, would be heightened considerably through such a pronouncement. On the other hand, it would most certainly suffer by the sentencing of acts whose punishable quality remained doubtful. Thus the violation of the sentence nulla poena sine lege could not be justified even from the angle of political utility, although conversely one must realize that the strengthening of the belief in the inflexibility of justice as the basic pillar of the tremendous dynamics of political forces serves peace best.
This result cannot be questioned on the basis of the individual considerations presented by the prosecutors.
The French prosecutors have pointed out that living international law could not be imagined without international morals, and that a moral code has precedence over all claims for freedom by the individual as well as by the nations. These certainly are facts well worth bearing in mind. Correctly considered, however, they speak only for my viewpoint that any strengthening of the sense of justice must not start out with a violation.
When the French chief prosecutor declared that without punishing the chief culprits of Nazi Germany there could be no future belief in justice, then obviously he went too far. Justice does not grow out of obtaining satisfaction for the violated sense of justice at any price. Otherwise we should quickly arrive again at reprisals, at the endless chain of vendetta. No; justice demands moderation and consideration of motives and countermotives. And there the one-sided action taken only against members of the Axis Powers violates the idea of justice. It is impossible to justify it by a direct violation of its own principles, that is, of the commonly prevailing rule: nulla poena sine lege. The British chief prosecutor himself declared the possibility of subsequent legislature to have been one of the most offensive doctrines of National Socialist jurisdiction. He does, however, believe that the possibility of punishing an act already branded as a crime does slot represent a change of the legal situation but only its logical further development, and is therefore permissible. I do not at all want to
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contest the institution of the Tribunal as thereby justified by him. But the question certainly arises whether this Tribunal is obliged to punish even though no penal law can be found which threatened the offenses with punishment at the time of their commission. To affirm this question would be going much further than the National Socialist judicial procedure which is so vehemently denounced by the British chief prosecutor. He did not offer the slightest motivation for such a course, and appears thus to reject it.
Moreover, he would certainly be ready to admit that the Charter, if it not merely presumed but possibly wished to establish that the acts concerned were punishable, ought to have stated this clearly and unambiguously. The passage involved, in Paragraph 6 of the Charter, completely lacks such clarity. It reads: "The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal."
This may be interpreted either as a mere regulation of competence or, albeit with difficulty, as a regulation originally establishing some act as being punishable. Therefore, this passage must definitely be interpreted in favor of the defendants according to the established legal principle in dubio pro re. The next phrase, "for which there shall be individual responsibility," and the material regulations for punishment quoted in the following paragraphs, according to their wording leave no reason for doubt as to their interpretation. However, they contain only modifications in dealing with acts established as punishable. The Tribunal may decide whether or not and to what extent they are compatible with the principle nulla poena sine lege praevia.
I find the viewpoint of the American prosecutor most difficult to understand. On the one hand he denounces all legal arbitrariness on the part of the Nazis, yet on the other hand he is not prepared to acquiesce in the punishment of the defendants only for those crimes which were not merely considered reprehensible at the time they were committed, but were actually threatened with punishment. On the one hand he does not desire executions or punishment without first having established guilt in a fair manner; on the other he demands a strict application of the Charter even where it contains new laws surprising the defendants. On the one hand he wants the Trial to appear to future generations as the fulfillment of the human yearning for justice; on the other, in the face of objections to the Charter, he invokes the power of the victorious, who really could have made short work of the defendants.
It seems to me that he speaks too much as an accuser, the sole role he really wants to assume according to his own words. For the prosecutor- especially in Anglo-American procedure-the word "justice" has a different meaning than for the judge, let alone the defendant. Unquestionably Justice Jackson
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thinks of himself not only as a prosecutor but to a large degree also as politician. To him this Trial is to serve not only as an atonement for wrongs committed, but also, and above all, in order to develop legal principles which he wishes to enforce by precedence and from which he expects a consolidation of international law for the prevention of future wars. Whoever approaches a cause with so many preconceived opinions and intentions lives in so completely different a world from that of the defendants, that from them to him, and vice versa, hardly any ways of understanding will be found.
As far as the political side of this Trial is concerned, I have already stated why it must not exert any influence on the course of the proceedings. I merely wish to point out here that a policy applied by the victors to the vanquished, which perhaps may be characterized as one of "least resistance," has once before proved to be a failure-namely, with regard to the question of disarmament under the Versailles Treaty.
If Justice Jackson really wishes to forego straightforward decision by force and is prepared to become a party to and submit to a legal procedure, although not bound to do so, then he will have to forego presenting arguments which do not belong in a legal procedure. A hybrid, which is neither a clear act of violence nor a trial in the usual sense-however much one may try to place it in a halfway position under the name of a political trial-is an absurdity. It is true that history knows of other so-called "political" trials of similarly vague character. I want to point out only the sentencing of Louis XVI by the French National Assembly. There, however, it was clear from the composition of the judicial gremium as well as from the procedure employed that this was not a matter of finding justice but amounted simply to a revolutionary act of violence, and courage to proceed with it was found in mutual exhortation. But here outstanding professional judges have been entrusted with the proceedings by the victorious powers. They have been given certain directions by the Charter, but otherwise their judicial discernment was granted the most far reaching authority. There can be no doubt that the politicians called upon the judges to relieve them of a job which they could not manage themselves. And now the judges will have to decide by their own competence ff and in how far they are able to execute the mandate. With any remainder the politicians wUI have to manage somehow or other on their own.
I was not able to pick a single one from among Justice Jackson's arguments which might cause the Tribunal to punish acts which were not punishable at the time of their perpetration. For this reason I shall examine the individual points of the Indictment only from the legal situation prevailing at the time of perpetration.
Of the crimes of which all the defendants are accused the conspiracy is most extensive as regards time and object. Professor Exner, in his capacity as a university teacher of criminal law, has given special attention to this legal conception for our Trial. In order to save time by avoiding a duplicate report, Professor Exner has placed the result of his research at my disposal. In conformity with him I-have to present the following regarding this question.
The concept of conspiracy belongs to the sphere of Anglo-American law. Even there, however, it is in no way uncontested; remarkably enough, some opinion in England has it that this conception is long since obsolete: "It has been said that in England this law has become entirely disused."
In these proceedings it is a different point that matters. The concept of conspiracy as used by the Prosecution is entirely
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unknown to German law. I would like, therefore, to begin my short legal argument with two questions which give rise to doubts.
(1) May a criminal procedure, bent on realizing justice, employ legal concepts which are and always have been utterly alien to the defendants and to the legal trend of thought of their people?
(2) How would this be consistent with the rule nullum crimen sine lege praevia, a principle which the British chief prosecutor has acknowledged as a fundamental principle of civilized criminal law?
Can it be honestly stated that already before 1939 not only the initiation of an illegal war was held to be an act punishable individually, but also the conspiracy to initiate such a war? The affirmative answer to this question given by the Prosecution has surprised not only Germany. May I clear up, in this connection, a misunderstanding. It has been said that the National Socialist State itself had issued criminal laws ignoring the rule of nullum crimen sine lege, so that the defendants had no right to invoke this rule. It is by no means my purpose to defend National Socialist criminal law, but honesty compels me to say that this is an error. The Third Reich has-as mentioned before-issued three laws increasing the penalty for an action with retroactive effect by applying the death penalty to acts which carried, when committed, prison sentences only. But in no case so far was a lawful act declared punishable, nor an act which was not a crime when committed retroactively converted into a crime. And that is the case here.
However, the Charter, which I follow now, has enjoined the use of the concept of conspiracy. I do not, therefore, go any further into these questions of doubt. At any rate, it would appear therefrom that if such a concept is to be applied to Germans, this must only be done with all limitations imposed by equity.
Anglo-American law defines conspiracy as an agreement between a number of persons to commit crimes, "a combination or an agreement between two or more persons for accomplishing an unlawful end or a lawful end by unlawful means."
Similar definitions keep recurring. Two points form the main characteristics: "agreement" and "common plan."
Agreement means an explicit or tacit understanding. If several persons pursue the same end independently of one another, then there is no conspiracy. It is accordingly not enough that the plan be common to all of them, they must have knowledge of this community and everyone must voluntarily accept the plan as his own. The very expression "to conspire" implies that everyone contributes knowingly and willingly. A person under duress is no conspirator, for duress does not produce agreement, at the utmost purely external assistance. For instance, if somebody imposes his will on another,
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then there is no conspiracy. Therefore, a conspiracy with a dictator at its head is a contradiction in itself. A dictator does not enter into a conspiracy with his followers; he does not make any agreement with them, he dictates.
Knowledge and will of the conspirators are aimed at a common plan. The contents of such a plan can be very different. In English law, for instance, conspiracies are known for committing murder, fraud, blackmail, false accusation, certain economic delicts, and so forth. In all these cases, conspiracy is treated as a crime sui generis; and therefore the conspirators are punishable for conspiracy regardless of whether a murder, a fraud, or even a mere attempt at such crimes has been committed in any given case.
According to German terminology, we would say that conspiracy is one of the cases where even preparation of a crime is punishable. Such cases are known to German criminal law. The partner in an agreement for committing a crime against life is punishable. According to Article 49b he is punishable for a crime of preparing a killing even if the intended action failed to take place.
In a certain sense Article 129 can also be applied here. Participation in an association pursuing certain aims hostile to the state is punishable, again independently of whether a crime has actually been committed. But if it becomes a fact, everybody is charged with his own culpability in this action. If it happens that the individual conspirator is guilty neither as the perpetrator, nor as an instigator, nor as an accessory to the actual crime, then he can be charged only with participation in an association hostile to the state, but not with such a crime.
The prosecutors in this Trial go further. They want to punish, under certain circumstances, the conspirators for individual actions they did not participate in. To take the most significant example: They want to charge a conspirator even with those crimes which were committed prior to his entering the conspiracy.
With the scant material at my disposal, I was not able to find any evidence that this has any foundation in English or American law. One thing is certain, however, that such a conclusion is utterly contrary to the German criminal law, for the latter is based on the self-evident and unanimously accepted principle that a person is responsible for an action only when he was the author, or at least the coauthor of it.
Let us now look at the Charter. The Charter quotes two cases which are declared as punishable and which fall within the competence of the Court:
(1) Article 6(a) states: Participation in a Common Plan or Conspiracy for the perpetration of a Crime against Peace. As such are
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listed the planning, preparation, launching, and conducting of a war of aggression or of a war involving the violation of international treaties or assurances. It is remarkable that a concept which belongs to the internal criminal and civil law of England and America is applied here, without more ado, to international facts. The Charter does this by treating individuals who plan or conduct illegal wars as gangsters participating in a highway robbery. This is a piece of legal audacity, because in this case the sovereign state stands between the individuals and the result of their actions, and this removes all foundation from the comparison with facts in national daily life. Up to now the concept of conspiracy has been unknown to international law.
(2) According to the last paragraph of Article 6 of the Charter, the partners in a conspiracy or in a common plan to commit crimes against peace, the law of war, or humanity are responsible for all actions committed by any partner while executing such a plan. This is fundamentally quite another thing from the case mentioned in (1). It does not mean punishment of the crime of conspiracy, but responsibility for the individual act of another conspiracy. In other words, conspiracy, as taken here, is not a crime sui generic, but a form of complicity in the actions of the conspirators. Mr. Justice Jackson has given us an example: If three robbers conspire and one of them kills the victim, then all of them, through their complicity, are responsible for the killing.
The case mentioned under (2) is of the greatest importance in this Trial. The individual conspirator is to be punished for crimes committed not by himself, but by another conspirator. One defendant, who had nothing to do with the annihilation of the Jews, is to be punished for this Crime against Humanity only because he was a partner in a conspiracy.
The question at issue is: In this Trial, are principles of liability to be applied which go beyond our German criminal law?
Article 6 of the Charter says that all conspirators are responsible for any action committed by any one of the conspirators "in execution of such plan." These are the decisive words for the interpretation.
In my opinion the meaning of these words is as follows: The other conspirators are also responsible for any actions of their comrades forming part of the common plan which they helped to conceive, desired, or at least condoned. A few examples:
Case (a): A, B. C, and D commit a concerted housebreaking in a villa. They happen to find a girl in the house, and A rapes her. B. C, and D cannot be charged with this rape. The reason is that A was not, when committing the crime, acting "in execution of the plan" but at best "on occasion of the execution of the plan." The
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point at issue is not the execution, but merely the occasion arising while executing the plan. This view, which will hardly be disputed, is of importance in that it shows that there cannot be any question of responsibility for all the actions of the partners to the conspiracy.
Case (b): While exploring the villa, B and C begin to fight about some loot and B knocks down C. This action, too, was not committed "in execution of the plan," but was foreign to the plan. A and D are not responsible for this "excess."
The third case: While exploring the villa the burglars are detected by the owner. D shoots him. Now the issue depends on the special circumstances of the case. Let us, for instance, go back to the example, quoted by Mr. Justice Jackson, of the three robbers, one of whom kills the victim. Considering the nature of American gangsterism, it would appear quite normal that the individual gangsters concerned bore in mind the possibility of such an occurrence, and were quite prepared to accept it. If this is the case they are responsible for the killing, as accessories or assistants, according to our opinion as well. In such a case there would be no objection to Mr. Justice Jackson's solution. But if the case is different, if the fatal issue had not been foreseen by the others, perhaps could not be foreseen-for instance, if they assumed that the inhabitants of the house were away from home-then there exists no liability on the part of the coconspirators. They are responsible only for acts incidental to the "execution of the plan." The common plan, however, includes only what was foreseen and approved from the beginning. Other ways of execution are alien to the plan.
Mr. Justice Jackson's argumentation is deceptive insofar as he derives a common principle from a decision which clearly and obviously happens to apply to the "normal case" of his parable of the robbers and can hardly be applied to any other case. As the case stands, coresponsibility in any single act could be made to apply to those conspirators only who foresaw and approved of their comrade's act.
A legal principle extending the fellow conspirator's responsibility to actions not included in their common responsibility is alien to German law. Whether or not it belongs to Anglo-American law, the application of such a principle in the present Trial would make punishable acts which heretofore could not be punished. This would clearly contradict the rule of nullum crimen sine lege, a principle, as I previously emphasized, acknowledged explicitly by the British prosecutor, too. In view of the fact that Article 6 can be interpreted in various ways, we should select from two possible interpretations, as corresponding to the author's will, the one which does not contradict the said principle.
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There is such a thing as withdrawal from a conspiracy, and also later entrance into it. The question is: What about responsibility for acts committed during the period of nonmembership? The Prosecution appears to be of the opinion that a person entering into the conspiracy thereby approves anything previously done by any conspirator in pursuance of the common plan. Such an assertion seems to arise out of the civil law theory of a subsequent ratification of a business transaction. This theory is not tenable in criminal law. The Charter does not mention anything of the sort; after all, the common plan, in the execution of which the act was perpetrated, was common only to those who were members at that time. Even if one takes the act of joining the conspiracy to be an approval of any acts so far committed, the approval of a crime already committed does not establish partnership in such crime. The person joining later has nothing to do with these crimes. The same applies to the withdrawal from the conspiracy. The person withdrawing can be made responsible only for what happened during his membership, even if the result has come about only after his withdrawal. Any other opinion would again lead to the result that an ex post facto law is being applied. Now, did the 22 defendants participate in a conspiracy within the meaning of the Indictment, namely, a conspiracy to commit crimes against peace, usages of war, and humanity?
If such a conspiracy had existed, then Hitler would have been- nobody can doubt it-the leader of these conspirators. But it has already been emphasized that a conspiracy headed by a dictator is a contradiction in itself. Hitler would have ridiculed the suggestion that he had made an agreement with his Ministers, Party leaders, and generals to wage this or that war, or to conduct the war by such or such means. He was an autocrat. He was not concerned with the approval of these men, but merely with having his decisions executed, whether they agreed with these decisions or not. Quite aside from legal considerations, Hitler's environment, in fact, was quite different from a band of conspirators, as visualized by the Prosecution before the hearing of evidence. Apart from a small Party clan, he was surrounded by an atmosphere of distrust. He trusted neither the "defeatist club" of his Ministers nor his "generals."
Such was already the case before the war, and his surroundings during the war have been described by witnesses with great impressiveness. A cunning system of secrecy insured that the plans and aims of the Fuehrer remained unknown to his associates as long as at all possible, so that his most intimate assistants time and again were taken by surprise by the events, and, in fact, were shocked to learn some of them only et the present Trial. This system of secrecy
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also insured an isolation of the individual collaborator, since one person was not allowed to know what the other did. Does this look like a conspiracy? In fact, Hitler complained at times that the generals were "conspiring" against him, and used, strangely, this very word while speaking of those who today are charged with having conspired with him. The hearing of evidence repeatedly mentions conspiracies, but conspiracies against Hitler. From a psychological point of view it is, to say the least, highly improbable that the score of survivors of the Third Reich selected and put in the dock by the Prosecution should have formed a gang of conspirators in the sense of the Indictment. In this group of people all homogeneity as to outlook, background, education, social position, and function is lacking, and some of the defendants only met in the dock.
The Prosecution considers the Party with its organizations as the nucleus around which the conspiracy formed. We should, however, in this connection consider the different attitude displayed by the individuals. Some of the defendants have never been Party members at all, or, at any rate, not for a long time, and only a few of them have played an important part in the Party. Some held top positions in the Party and its organizations, and devoted their entire activity to the aims of these organizations, while others did everything in their power to eliminate from their sphere of activity any influence of Party and SS.
The NSDAP was founded in a period of utter powerlessness of the State and of general war-weariness of the people at a time when, truly, no intelligent person thought of a second war, much less of a war of aggression.
But were not some of the defendants' aims attainable without war?
Presumably every true German from the bottom of his heart desired the union of all adjoining German territory with the Reich. This applied to the Saar territory, Austria, Memel, Danzig, and, as a hope lingering in the far future, also to the Sudeten territory. In the past they all had been parts of the German Reich, they all would have returned to the German Reich already in 1919, had the right of self-determination solemnly promised to all peoples been realized. But these objectives of German longing could be reached by peaceful means. And in fact, they had been reached without a shot or a stroke with the one exception of Danzig, which would have been managed in the same peaceful way if the Fuehrer had had a shred of patience and the Poles a shred of good will.
But they neither wanted nor believed in a war. Hitler was thought capable of large-scale bluffing, but not of launching the catastrophe of a war. I cannot, therefore, believe in a conspiracy to
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commit crimes against peace and the usages of war. May I add two points of general importance:
(1) The first point refers to Goering's attitude immediately previous to the outbreak of war. He was at that time Hitler's confidant and friend, the country's second string, and he is now the chief figure among the defendants. If there had been, in truth, a conspiracy to launch wars of aggression at that time, then he would have taken second place within such a conspiracy, yet it was actually he who tried everything within his power during the last days of August 1939 to prevent the attack on Poland, and who tried behind Hitler's back to maintain peace. How can this be consistent with a conspiracy for initiating wars of aggression? Nor did he approve of a war against Russia and strongly advised the Fuehrer against such a war.
(2) If there had been a conspiracy to commit war crimes, then the war would have been waged, from the very beginning, with utter ruthlessness and disregard of rules of war. Just the contrary actually happened. In fact, during the first years of the war, international law was on the whole respected. Especially in the beginning every endeavor was made to wage war with decency and chivalry. If any evidence is needed, a glance at the orders of the German High Command of the Armed Forces regulating the behavior of the soldiers in Norway, Belgium, Holland is sufficient proof.
MARSHAL: The Tribunal adjourns until tomorrow.
[The Tribunal adjourned until 5 July 1946 at 1000 hours.]