[Page 106]

From this time on the search for true justice stirs the world. All Socialist theories are only attempts at solving this problem. After having been disappointed by the doctrines of too much liberty, mankind once again seeks security and order. Some wish to return to the Christian truth of God while others want to go forward in order to solve the problem through human intellect eventually.

The National Socialists, whose most revolutionary leaders wanted to go farther backwards and at the same time forward to a self-deification of life in a biological political sense, have been conquered and eliminated. Yet a solution of the problems of world order has hitherto not been found. The victorious powers intend to come close to it, however, by drawing a line between themselves and the vanquished through a common indictment and punishment of the same as criminals.

From whence will they take the standard by which to decide about justice and injustice in a legal sense? In so far as such standards exist by International Law, valid up to now, further statements are not required. That a special court for the trial was created by the Charter of this Tribunal I also do not object to. I must, however, vigorously protest against its use, in so far as it is meant to create a new material law by threatening punishment for crimes which, at the time of their perpetration, at least as far as individuals are concerned, did not carry any punishment.

I shall then eliminate the following paragraph.

Can one expect that hereafter punishment will be recognized as just, if the culprit was never aware of it, because at the time he was not threatened with such punishment, and he believed to be able to derive the authorisation for his way of acting solely from the political aims pursued? Of what help is a reference to the ethical laws, if such must be first found again? According to justice Jackson's opinion, however, the Nazi Government, from the start was never the representative of a legitimate State which had pursued the legitimate aims of a member of the international community. Only from such an attitude can the Indictment for conspiracy be understood, which is to be discussed later. In fact this Indictment is far ahead of its time. Because internationally recognized standards outside the positive International Law by which the legitimacy of States and of their aims could have been judged did not exist, any more than did an international community

[Page 107]

Justice Jackson, declared justly, that it would have been possible for the conquerors to deal with the conquered as they saw fit. But, said he, non-discriminatory executions without a final establishment of guilt would be a breach of promise given repeatedly. For that reason he, himself, proposed judicial proceedings which would have to differ from the ordinary criminal proceeding by not admitting the usual tactics of obstruction and delay by the defendants. However, an establishment of guilt should be made, but based on a just and fair trial. If the defendants were the first leaders of a conquered nation which had to answer before the law, they were also the first ones to whom the opportunity was given to defend their lives "in the name of justice."

If this sentence is to have a meaning then it must be of significance for interpretation of the Charter. Because it would not be reasonable that the Tribunal was obliged to stand exclusively by the Charter without taking into consideration International Law recognized hitherto and the convictions of others with regard to law. In that case the judgement would rather become a pure dictate of force to appeal against which "in the name of justice" would not be possible.

The Charter may, therefore, be applied by the Tribunal only in so far as its decrees are justifiable before the conscience, not only formally but also materially. The Charter itself says that nobody may be excused for a violation of its decrees by hiding behind an order of his government or of a superior. In that case it must apply this, its own logic, also to itself by allowing the judge to examine the congruence of its prescripts with the general principles of just ways of thought. For a judge, after all, is far more free and independent of the lawmaker than a subordinate of his superior or a subject of his dictator.

Then there is another question, whether decrees of the Charter are really so much in opposition to the previous and ordinary state of law, especially to the fundamental ideas of all rules of law, that the Tribunal cannot acknowledge them as right or apply them. Practically the most serious problem consists thereby in deciding what should have precedence in the case of conflict; the Charter or the legal maxim Nulla poena sine lege.

One has tried to justify the exceptional case of disregarding this rule in this given instance with the highly political Charter of the trial. Such a justification, however, cannot possibly be recognized. The political significance of a trial is usually apparent in its consequences near and far, but not yet in the very procedure by influencing the legal norms to be applied. A judge should administer law but not deal in politics. He is called upon still less to rectify mistakes made by the politicians. Punishment, the establishment of which in due time was neglected, may only be decreed by him on the strength of a subsequent law, if he would do this also in other cases, but not only as an exception.

Because basically the principle of the division of power should be maintained. By this principle Montesquieu divided the originally united power of the absolute king into legislative, administrative and judiciary. The three different forms of expression of State domination were to have equal importance, counterbalance each other and so aid in controlling one another. This system of division of powers characterises the modern constitutional State. Straining the point somewhat, one could define the field of activities and competency of the three different forms of expression of sovereign authority in stating that the legislature has to deal with the future, administration with the present, and judiciary with the past. The legislature sets the standards to which life is to conform. From time to time these must be changed in accordance with the changed way of living. But until then they remain valid.

In so far as a mere establishment of norms of life is not sufficient it will be formed, case by case, by the administration. The administration itself is bound

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The judge on the other hand may not decide according to the usefulness but should decide according to the law. In general, it is not his task to create, but to judge. He has to judge the actions after they are committed and the conditions after they have arisen in the light of whether and to what extent they correspond to the standards, respectively, what juridical consequences they have brought about. Therefore, as a matter of principle his view is directed towards the past. In the life of the State, which is continuously inspired by politicians looking to the future, he is the steadfast counterpart serving as a brake.

Though he is bound by the laws decreed by the politician, he is not merely an executive organ. On the contrary he should control the lawmaker by re-examining the laws with regard to their conforming, to the constitution. Therein, in any case, according to reason, would belong the examination of whether the principle of the division of powers was maintained. Because just as the judge may judge only de lege latea and must leave the decisions de lege ferenda to the lawmaker, the latter in turn is obliged not to interfere with the former's competency by making laws with retroactive power.

The criticism of the administration of justice of the National-Socialist State is mainly based on its having abandoned the division of power. By putting at the top the political leadership idea (Fuehrerprinzip), it interfered despotically with the competency of the judges. By means of the police, i.e., the administration, it arrested and imprisoned people without judicial warrant of arrest only for reasons of political prevention, and even re-arrested those who had been acquitted by the judge and set free. On the other hand, for political reasons, convicted criminals were withdrawn from the hands of justice. Thereby, quite naturally, safety and clarity of the law were seriously endangered.

I can pass over the following paragraph because I shall come back to that principle on another occasion.

A certain degree of protection against arbitrary judgements and the splitting-up of law, lay in the fact that the National-Socialist State was based on a specific ideology by which the judge was bound. Concerning the close connection between finding of justice and ideology the Swiss Professor of Law, Fehr, of Berne, already in 1927 wrote in his book: Law and Reality; Insight into the Growth and Decay of the Forms of Law (Einblick in Werden and Vergehen der Rechtsformen). He says literally:

"Without ideology law floats in a vacuum .... Anyone who has no ideology can have no sense of right and wrong ...."

In contrast to this a decisive ideological base as a foundation of the Charter is not recognizable. As its signatories stand on very different ideological ground we will have to proceed, as in the International Law valid hitherto from the liberal idea of freedom of ideology. Therefore the legal thesis Nulla poena sine lege should be especially sacred for it. This is also proven by the fact that the Control Council for Germany, by abolishing the criminal analogy of Article 2a of the criminal code, brought the above maxim back again to all Germans most emphatically.

I shall leave out the following paragraph and continue.

Nor is an examination of the political aims connected with the Charter of any assistance. Justice Jackson has called the Charter and the Trials a step in the direction: "To create a juridical guarantee, that he who starts a war will pay for it in person." The American commentator Walter Lippmann stated elsewhere that the system of collective security for the prevention of wars had broken down, because nobody was prepared to declare war on the country breaking the peace in order to help prevent a war which did not directly affect him.

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The way to peace, as shown here by Lippmann, will be welcomed on principle, although one still will doubt its absolute reliability. Justice Jackson himself has expressed doubts whether punishment will serve to intimidate and thus help prevent breaking the peace in the future. Only one who is certain of victory will decide to wage a war and so will not seriously consider punishment which will reach him only in the case of defeat. Therefore the educational issue of this trial, to strengthen the sense of justice, seems more important than the effect of intimidation which can also be achieved by warning for the future. The politician will have to learn that the principle of division of power will also have to be observed by him, and that he will not find a judge willing to make amends for his mistakes afterwards by punishing on the basis of future laws. The confidence in international jurisdiction, which today still suffers from the suspicion of being easily misused for political purposes, would be raised considerably through such a decree. Therefore even from the viewpoint of political usefulness the violation of the sentence Nulla poena sine lege could not be justified. On the other hand, however, one must realize that the strengthening of the belief in the inflexibility of justice as the basic pillar of the tremendous dynamics of political forces serves peace best.

This result can also not be questioned on the basis of the individual considerations presented by the representatives for the defendants.

The French Prosecutors have pointed out that an active international law could not be imagined without international morals, and that a moral code has to precede all claims for freedom by the individual as well as by the nations. These certainly are facts well worth considering. Correctly considered, however, they speak only for my viewpoint that the strengthening of the sense of justice must not begin by violating it.

When the French Chief Prosecutor declared that without punishing the chief culprits of Nazi Germany there could be no future belief in justice, then obviously he went too far. Justice does not grow out of obtaining satisfaction for the violated sense of justice at any price. Otherwise we should quickly arrive again at reprisals, at the endless chain of vendetta. No justice demands moderation and consideration of motives and counter-motives. And there the one-sided action taken only against members of the Axis Powers violates the idea of justice. It is impossible to justify it by a direct violation of it, that is, of the otherwise commonly prevailing rule: Nulla poena sine lege. The British Chief Prosecutor himself declared the possibility of subsequent legislature to be one of the most offensive doctrines of the National-Socialistic legal system. With this he meant that the possibility of punishing an act already marked as a crime does not mean a change of the legal situation but only its logical further development, and is therefore permissible. I do not at all want to contest the institution of the Tribunal thereby justified by him. Rather the question arises whether this Tribunal is obliged to punish even though no penal law can be found which threatened the offences with punishment at the time of their commission. The affirmation of this question would go much farther than the National-Socialist judicial procedure which is rejected so vehemently by the British Chief Prosecutor.

Moreover, the point is that the Charter, if it did not only presume, but possibly also established, the basis for the punishability of acts referred to by it would have had to state this clearly and unambiguously. The passage involved in Article 6 of the Charter completely lacks such distinctness. It reads:

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"The following acts (or any one of them) are crimes coming within the jurisdiction of the Tribunal."

"for which there shall be individual responsibility"

Most difficult for me to understand is the viewpoint of the American Prosecutor. On one hand he passionately disavows all legal arbitrariness of the Nazis. On the other hand he is not prepared to acquiesce in the punishment of the defendants only for those crimes which were not only considered punishable at the time of being committed but were also actually threatened with punishment. On one hand he does not want executions or punishment without first having established guilt in a fair manner. On the other hand he demands a strict application of the Charter even though it contains new law surprising to the defendants. On one hand he wants the trial to appear to future generations as the fulfilment of the human yearning for justice. On the other hand, in the face of objections to the Charter, he bluntly presumes upon the power of the victorious, who really could have made short shrift of the defendants.

Now, I omit the next page and continue on Page 18, second paragraph.

As far as the political side of this trial is concerned I have already stated why it must not exert an influence on its outcome. I merely wish to point out here that a policy which is carried out by the victors on the vanquished and therefore may be characterised as one of "the least resistance" has once before proven to be a failure.

I turn now to Page 19 to "Conspiracy".

Of the crimes of which the defendants are accused conspiracy is most extensive as regards time and object. Professor Exner, in his capacity as a University teacher of criminal law, occupied himself in particular with the importance of the legal conception for our process.

In order to save time by avoiding a duplicate report, Professor Exner has placed the result of his research at my disposal. In conformity with him I have to present the following regarding this question:

The concept "Conspiracy" belongs to the sphere of Anglo- American law. There, however, it is in no way uncontested, rather, remarkably enough, some opinion in England has it that this conception is long since obsolete: "It has been said that in England this law has become entirely disused."

In these proceedings, it is a different point that matters. The concept of "Conspiracy", as used by the prosecution, is entirely unknown to German law. I would like, therefore, to begin my short legal argument with two questions which give rise to doubts.

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