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. Müller.
What the Prosecution is doing when, in the name of the world community as a legal entity, it desires to have individuals legally 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 its organs. It must do so if it desires to prosecute individual persons 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 of 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 is 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 and yearnings of the nations, the future is theirs.