THE PRESIDENT: Just a moment. The Tribunal will adjourn.
[A recess was taken.]
DR. RUDOLF DIX (Counsel for Defendant Schacht): My Lord, may I ask the Tribunal to accept a short explanation to the matter which has just taken up the attention of the Tribunal and which for most counsel is of general and fundamental importance. I should like to remind you of the fact that the suggestion and initiative to take up certain legal topics and have them dealt with by Professor Jahrreiss came from the Defense and that this suggestion was made for the sole reason of complying with the Tribunal’s wish to expedite the proceedings. I must earnestly request the Tribunal to protect us from letting this suggestion, made to and granted by the Tribunal at the time, become our own pitfall in that a resolution which has been made is interpreted too strictly. I do not have the resolution before me and I do not intend to deal with it and discuss it, but I should like to say this: Professor Jahrreiss did speak and was to speak on but two topics which, it is true, were of a general nature; that is, (a) the punishment of individuals for a war of aggression, in other words, nulla poena sine lege, and (b) the legal nature of the Führer decrees. Only these two problems were to be dealt with by Dr. Jahrreiss and these were the two topics that he actually did deal with. But besides that, these proceedings entail a series of legal problems which are of a general nature and more or less affect each of the defendants. I only recall to you the interpretation of the conspiracy charges, the various questions dealing with international law, the questions of hostages and forced labor, and the legal question concerning distress at sea through naval warfare, and other general questions. There are a host of general questions, and above all the matter on which my colleague, Dr. Horn, was stopped, concerning the question: “What is an aggressive war?” There exist fundamental differences between a military war of aggression, a political war of aggression, and a juridical war of aggression, et cetera, about which Dr. Jahrreiss did not say a single word, nor was he supposed to do so. And please—I trust you do not mind my saying so, but that is the way I understood Dr. Horn—that is really the basis of his argument.
I do not propose to argue and to refer to a resolution; but I ask the Tribunal not to put us in a most delicate situation, namely, that we, in order to expedite the proceedings by having Professor Jahrreiss deal with a number of legal questions, be put in a position for which we cannot take responsibility, in that we are prevented from dealing with certain questions which in our opinion are of decisive legal importance to the defendants and about which Jahrreiss himself did not speak at all.
Only a word or two more. I believe the Tribunal will agree with me that one can have an entirely different opinion on the subject with which Professor Jahrreiss has dealt. I do not have it; nor shall I contradict Dr. Jahrreiss. But from a purely theoretical point of view that might be possible. Should it happen, just because in such an important matter a speaker has dealt with this question, although in a sense which possibly one of the counsel considers entirely improper and harmful to his case, that that counsel is forced to keep silent on such a matter? That cannot have been the intention of the Tribunal. Well, all I wanted to say was this: This speech by Jahrreiss served the purpose of expediting the Trial. Well and good. But we ask—I think I may say “we”; I believe that none of my colleagues is of a different opinion—we ask that it should not be interpreted too formally; and if one of us for some good reason says, “I have to discuss this, it is important for this or that reason,” to give us that possibility wherever Jahrreiss has dealt with the subject in a sense which we do not approve, and not to prevent the discussion of some general legal question if it should be raised by any of the counsel.
THE PRESIDENT: The Tribunal has been considering this matter and they are fully aware, of course, of the difficulties which may possibly arise if there were differences of opinion among the defendants’ counsel upon questions which had been dealt with by Dr. Jahrreiss. They did anticipate when they made the order which specifies that Dr. Jahrreiss should speak on legal issues arising out of the Indictment and Charter which are common to all the defendants—those are the words of the order—that he would deal with all the issues which were common to all the defendants, and in the absence of some difference of opinion, that the other defendants would be prepared to adopt his argument; but the Tribunal think that the questions of law may be to some extent quite various and difficult and that the only rule which is possible for them to lay down at this stage is that there must be no real repetition by defendants’ counsel. The Tribunal apprehends that defendants’ counsel will see the necessity for such a rule as that. It cannot be in the interests of an expeditious trial that argument should be repeated over and over again, and this Tribunal desires to point out to the defendants’ counsel that such repetition upon general matters only tends to distract the attention of the Tribunal from the real defenses of the clients whom they represent, and therefore the Tribunal hopes that the defendants’ counsel will try to co-operate in this matter and confine such legal arguments as they think it right to present to the Tribunal to arguments which had not been addressed to the Tribunal by counsel who preceded them—either Dr. Jahrreiss or any other counsel. That is all that I need to say, I think, at this stage; and as it is now 5 o’clock the Tribunal will adjourn.