Therefore the reasons for your verdict in the Sievers case are so immensely important, far more important than the trifling Sievers case can be in the universal history of all times. I am forced to detail the particulars of these problems.
It goes without saying that the member of a resistance movement can only refer to his resistance, if this resistance is lawful. This will not always be the case; for, political crime and similar actions committed for political motives are crimes and will remain such. He who removes a political adversary only to take his position or to open the way for his partisans acts unlawfully and is liable to punishment. The situation, however, becomes different if not only a political discussion is interrupted by murder, but where a tyrant whose government is inscribed with bloody letters in the annals of mankind is at last felled to the ground. In this case the perpetrator is supported by an acknowledged excuse. This excuse is self-defense.
According to the German Penal Code, Article 53, an action is not punishable if it is committed in self-defense. And self-defense is such defense as is necessary to ward off from oneself or another person an imminent unlawful attack.
These principles are, however, not only German legal stipulations. They are legal values of all nations and all times. To a large extent they tally with human sentiments and are termed “the great law of defense.” They are already found in Roman law in the formulation “vim vi expellere [repellere] licet”—force may be driven out by force—and have been enthusiastically taken over by English common law and by American law, as stated by Wharton, “Criminal Law”, paragraph 613. They authorize every individual to ward off injury from himself or another person with all necessary means at his command. From this point of view too the struggle against a criminal government threatening the peace of the world, preparing aggressive wars, ready without any purpose or need to plunge the whole world into immeasurable misery from sheer striving for power, from presumption and conceit; struggle and resistance against such a government and such guidance are lawful and permissible, no matter by what means they may be carried on. Since the end of the war even, the opinion has been maintained more and more that such a struggle is not only lawful and permissible but is even the duty of every individual. Is not the collective guilt of the whole German nation substantiated by the charge that it witnessed the doings of the Nazi government without interfering at least with a secretly clenched fist in its pocket? Murder and manslaughter, bodily injury and restriction of liberty inflicted upon the potentates and responsible men of such a system are acts of self-defense for the benefit of peace and mankind. They are lawful and exempt from punishment; they are a duty if there is no help possible in any other way.
From times immemorial this question concerning the lawfulness and duty of committing political murder has engaged not only lawyers but also a large number of poets and philosophers. Friedrich von Schiller justified the murder committed on Gessler as the last desperate attempt to escape slavery. Thus the juridical vindication of murdering a criminal tyrant is paralleled by its high moral estimation.
But it may happen that not only the real assailants come to grief. He who has to ward off an attack may be forced to implicate a third person hitherto not involved. This case too is provided for in the German Penal Code and is termed “necessity”. The regulation of Article 54 runs as follows: “No punishable act has been committed when the act—self-defense apart—was committed in an emergency, which could be met in no other way, to escape a present danger to the life or body of the perpetrator or a relative of his.”
The legal codes of all nations and all ages have been compelled to face the problem of the conflict between two legal values which can only be solved by hurting or even annihilating one of the two. Justice cannot insist with utter consistency upon the individual respecting foreign rights and sacrificing his own at all costs and under any circumstances. A Frenchman says to this question: “Cette théorie est admirable pour des saints et pour des héros, mais elle n’est point faite pour la vulgaire humanité”—“This theory is admirable for saints and heroes, but it is not for common humanity”—[Pradier—Fodéré, vol. I, page 367, Traité du droit international public européen et américain.] “Quod non est licitum in lege, necessitas facit licitum”—“What is not permitted by law, necessity makes permissible”—[says the Roman law], and the French lawyer Rossi says: “L’acte ne peut être excusable lorsque l’agent cède à l’instinct de sa propre conservation, lorsqu’il se trouve en présence d’un peril imminent, lorsqu’il s’agit de la vie.”—“The act can be excused only when the perpetrator yields to the instinct of self-preservation, when he finds himself faced with imminent danger, when life itself is at stake.”—An old German legal proverb runs: “Necessity knows no law.” Last but not least, American law deals with this problem under the name “necessity” (Wharton, “Criminal Law,” par. 642), a literal translation of the German expression “Not”. So by virtue of necessity a shipwrecked sailor may push his fellow-sufferer from the board which is too small to save both of them. If applied to resistance movements against criminal governments, these principles mean that third persons hitherto unconcerned may also be involved, if there is no other alternative, if “Not”, “necessitas”, “necessity” requires it peremptorily and unavoidably.
You, your Honors, are called upon to bring the principles of “self-defense” and of “necessity”, “this great law of defense” to their common denominator, to apply them to the Sievers case and thus insert them into the unwritten rules of the international relations of public and political law. The Anglo-Saxon legal way of thinking and the principles of natural law will give you valuable support in forming the verdict.
Now I can turn to the specific case of Sievers.
In order to judge his actions the following questions are of a decisive importance: Was there a German resistance movement at all? Did the Hielscher group belong to this resistance movement? Was this group to be taken seriously and what were its aims? Was Sievers a member of this group and what were his tasks? What was his attitude in performing these tasks? Were there also other possibilities for him? It has frequently been maintained that there was no German resistance movement. But the German resistance existed.