We have no code of laws, we have, however astonishing it may sound, not even any fixed moral concepts for the relations of nations among each other in peace and war. Therefore the Prosecution had to be satisfied with the general terms “civilized conception of justice,” “traditional conception of legality,” “conception of legality built on sound common sense with regard to justice”; they have spoken of “human and divine laws” (Volume VII, Page 78); the Hague Land Warfare Rules refer in their preamble to the “laws of humanity” and to the “demands of the public conscience.”
The basis of justice is without any doubt a morality, the moral law; thus if we wish to determine what injustice among nations is, what is contrary to the idea of justice among nations according to international law, then we must broach the question of morality. The answer will be: everything is moral which our conscience accepts as being moral.
But what is the original cause of moral discrimination: desire and happiness of the individual; or progress, improvement, preservation of the life of an individual, of a people, of humanity; or virtue; or duty?
How can we recognize what is good and what is bad? By intuition, or by experience, or by authoritarian and religious education? What is good and bad in the actions of a State, what is good and bad in the mutual relationship between nations? Does a difference exist between national morals and private morals? Can the State commit any injustice at all? From Saint Augustine through Machiavelli and Nietzsche to Hegel, Tolstoy, and the pacifist thinkers, yearning humanity has received the most different answers to this question.
And furthermore: Have fixed moral laws existed since time immemorial or have changes in the ideals of nations brought about changes in morals, too? What is the situation with regard to this today?
I have already said once that, according to my opinion, war itself is a brutality and a great crime of humanity against itself and the laws of life. An essentially different question is whether this conviction has already entered the conscience of humanity. We consider ourselves far above the moral level of former nations and ages, and are, for example, surprised to find that the highest representatives of Greek morality such as Plato and Aristotle consider abandoning of children and slavery to be absolutely right, or that in certain parts of East Africa even today only robbery and murder give a man the stamp of heroism; on the other hand it is absolutely compatible with our present-day idea of morality that human beings are killed by hundreds of thousands in war and that the products of human welfare and culture are wantonly destroyed. Neither in a moral nor in a legal sense is this considered as unjust.
If the Prosecution now charges the defendant with a wrong in the moral or legal sense, it is its duty to present the prerequisites for a punishment of the defendant, in such a way as to convince the Court, for, according to the hitherto existing moral concepts of nations, killing in war is not murder within the meaning of the penal codes of the individual countries, and the measures of a sovereign country in war or in peace have never been interpreted as an offense within the meaning of these penal codes or as punishable and immoral acts by the legal convictions of civilized humanity. Christianity teaches us to return good for evil and to love one’s enemies; this has been a world religion for 2,000 years, but many people today will laugh outright if one should venture to claim certain principles for the relations of nations between each other. In the face of the yearning of humanity the Prosecution now desires to aid its progress, even if only step by step, in this direction; it seeks to achieve the end that “unequivocal rules” shall emerge from this Trial; its mistake however, is that it wants to explain “traditional opinions of justice” and civil criminal laws as the contents of a public conscience which hardly exists any longer, compliance with which cannot in any case be demanded retroactively of the defendants.
It is certainly very true that a profound change is commencing today in the moral thinking of humanity, a regeneration of the moral law of nations, and that this Trial before the High Tribunal marks the beginning of this new era. However, it appears to me very doubtful whether it is proper to impress a new kind of justice upon the conscience of mankind by making an example of the defendants.
It is easy to speak of human and divine laws, or of the demands of public conscience, but we become greatly embarrassed for an answer to the question: What is the substance and content of private morality, when is an act immoral according to private morality? In their concern over what is good or evil, some rely on religion, others have been taught wisdom by experience and education, still others find an explanation in the philosophers.
The State has in recent times taken up the moral education of its citizens in increasing measure, not only through criminal laws but also through “political education” or whatever other name is used for it. Not only did the National Socialist State have a great advantage here over the liberal states, but so do all totalitarian states of the world: They have hammered moral principles into the minds of their citizens, both of a private and public nature. They have proclaimed moral ultimate values, such as fidelity, honor, and obedience. By this means reflection concerning private and public morals is made easier for the individual citizens and they are obliged by force to uphold these ultimate values in the prescribed form. The German people, who had become tired and resigned as a result of continual warlike disputes and religious upheavals, willingly followed National Socialism, even when the latter’s ethics were exalted to a faith; it took this leap into the unknown, not with the idea of being taught by this means to deceive people, to enslave them, to rob them, to kill them, to torture them (see Volume VII, Page 78), but because it was in search of moral elevation, an authoritative moral leadership in its material and spiritual distress, and because nothing else was offered to it, especially not by a liberal world conscience which did not know how to make the fundamental principle of humanity a reality. The National Socialist ethical conceptions were taught to Germans as summum bonum, as the highest idea, and they believed the idea to be moral and good. Then National Socialism came into conflict not only with ideologies, but also with the plans of power of other states, because it could not find the formula which would include not only perfection and life for Germany, but also the interests and justice for all nations of the world. To try to construe out of such inadequacy of a national ethical idea, however inefficient, a punishable action, a conspiracy, is not admissible in my opinion, if only because uniformly acknowledged national morality has not yet developed, and unlimited national egotism has not yet been dethroned and is still considered the highest moral instance of the State.