Afternoon Session
DR. EXNER: Mr. President, I shall read the letter dated 22 June 1946, sent to the International Military Tribunal:
“Mr. President:
“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.
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 von 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.”
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...
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 Göring, 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 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 understand 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 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 tranquility, 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 afore-mentioned 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 God, they reached the apex of secularization. Human intellect, however, proved unable to balance the conflicting 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, 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 nulla poena sine lege.
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 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 Führerprinzip, 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 nulla poena sine lege 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 und 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, jurisdiction as “bourgeois class justice,” was the first to 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 down 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 nulla 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. 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 not represent a change of the legal situation but only its logical further development, and is therefore permissible. I do not at all want to 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 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 if and in how far they are able to execute the mandate. With any remainder the politicians will 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 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, 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 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 generis, 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 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.
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 Führer 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 at the present Trial. This system of secrecy 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 Führer 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 commit crimes against peace and the usages of war. May I add two points of general importance:
(1) The first point refers to Göring’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 Führer 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.