Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, Volume 06

by Various

FORTY-EIGHTH DAY
Friday, 1 February 1946

Morning Session

MARSHAL: May it please the Court, I desire to announce that Defendants Kaltenbrunner and Seyss-Inquart will be absent from this morning’s session on account of illness.

M. DUBOST: I have now completed my presentation of facts. This presentation has consisted of a dry enumeration of crimes, atrocities, extortions of all sorts, which I deliberately presented to you without any embellishments of oratory. The facts have a profound eloquence which suffices. These facts are, it seems to me, definitely established. I do not believe that the Defense, nor history—even German history—will be able to set aside their essential aspects. They will no doubt be exposed to criticism.

Our evidence was hastily collected in a ruined country whose every means of communication had been destroyed by an enemy in flight, in a country where each individual was more concerned with preparation for the future than with looking back upon the past, even to exact vengeance, for the future is the life of our children, and the past is but death and destruction.

For the whole of France, for each country in the West, the demands of daily life, the difficulty of preparing for a better future once again give full meaning to the words of the Scriptures, Sinite mortuos sepelire mortuos (Let the dead bury their dead.); and that is why in spite of all our efforts, all our endeavors, to prepare the work of justice which France and universal conscience demand, we were not able to be more thorough. That is why errors of detail may have slipped into our work, but the rectifications which time and the Defense will effect can be only accessory. They will not eliminate the fact that millions of men have been deported, starved, exhausted through labor and privation before being put to death, like cattle without value; that innumerable innocent persons have been tortured before being turned over to the executioner. Rectifications may affect circumstances of time, sometimes of place; they will not change the essential facts even if a few details are modified.

But these facts, having been established in their general aspect, it remains for us to complete our task by giving them juridical significance, by analyzing them with reference to the law of which they constitute a violation, and by making clear the inculpations, in other words, by fixing the responsibilities, of each defendant in respect to a law.

What law shall we apply? Taken one by one and separated from the systematic policy which conceived, willed, and ordered them as a means of achieving domination through terror and beyond that as a means of extermination pure and simple; these facts constitute crimes against common law as much as violations of the laws and usages of war and of international law. All of them could therefore be defined separately as a violation of an international convention and of a penal provision of one or another of our established domestic laws. Or rather all could be qualified as a violation of a rule of common law which has emerged from each of our own domestic laws, as shown by M. De Menthon in his address; of that common law which, in the last analysis, was designated by him as being the foundation, as the root of international customs, which, beyond the Charter itself, is and remains the one and only guide of your decisions.

But it is right to know that this common law springs from our established laws and, like them, punishes in principle actual misdeeds. Now, all of our defendants remained physically divorced from each of the criminal facts which in the ubiquity of their power they multiplied throughout the world. It was their will which commanded; but, as Mr. Justice Jackson recalled, they never reddened their own hands with the blood of their victims. Therefore, if we refer exclusively to our established laws and especially to French domestic law, the defendants could not, in any case, be considered as principal authors but merely as accomplices “who have provoked the act through abuse of authority or of power.” All of that is indeed a contradiction to the conception which each person in our countries holds of the guilt of the major war criminals. To solve the problem thus would be to narrow singularly the field of responsibility of each of the defendants. This responsibility would appear merely accessory, where, in fact, it is the principal responsibility; it would appear fragmentary, whereas to be truly fixed it must be presented as one single time, in the whole of their thoughts, intentions, and acts as chiefs of the Nazi government who conceived, willed, ordered, or tolerated the development of that systematic policy of terror and extermination, of which each fact taken separately is but a particular aspect, merely a constituent element. Thus a simple reference to common law does not bring us close enough to reality. If it does not omit, as such, any of the facts to which guilt attaches, it does leave aside the psychological factor and does not give us a complete conception of the guilt of the accused in a single formula embracing all the reality. That is because common law expresses a certain status of common morality which is accepted by civilized nations as law for the mutual relations of citizens. Profoundly imbued with the concept of individualism, this common law is not adequate to meet the exigencies of collective life which international morality must govern. Furthermore, this common law which is the foundation of our tradition has become static in a Cartesian sense, whereas our custom remains enriched by all the dynamism of international penal law. The Charter has not fixed the manner in which we are to qualify in a juridical sense the facts which I have presented before you. In creating your Tribunal, the authors of the Charter limited themselves to establishing the limits of your jurisdiction: War Crimes, Crimes against Humanity, Crimes against Peace; and even then they did not give an exhaustive definition of each of these crimes. The Tribunal may refer on this point to Article 6, paragraphs b and c of the Charter of the Tribunal. This article gives only an indicative enumeration. That is because the authors of the Charter bore in mind that international penal law is only still in the first phase of the birth of a custom in which law is developed by reaction to the deed and where the judge intervenes only to save the criminals from individual vengeance or where law is applied by the judge alone and the penalty pronounced according to his sole judgment. Thus, the authors of the Charter abstained from giving us a fixed method of qualification by reference to common law or on the contrary, to custom. They did not say to you:

“You will take one by one the criminal facts submitted to you, and each fact taken separately shall be isolated from the others to be defined by reference to a stipulation of any one domestic law or to a synthesis of domestic laws, yielding thus a common law.”