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 them 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 law 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 far 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 into national law, as we say, but also against that national criminal 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 nulla poena sine lege praevia 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 into 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 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 Führer Principle. This Führer 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.
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.