dtufail/nuremberg-trials-corpus huggingface dataset:
DR. SEIDL: In the event, however, that the Tribunal should judge the results of the testimony differently and in application of Article 6, Paragraph 3 of the Charter, should accept the existence of such a plan, directed toward the beginning of a war of aggression, it becomes necessary to examine the question of what legal consequences the flight of the Defendant Rudolf Hess to England and his intentions in connection with it had on his participation in the common plan as asserted by the Prosecution. To this the following can be said: Article 6, Paragraph 3 of the Charter extends the criminal responsibility of the defendant to include all acts committed by any person while carrying out the common plan alleged by the Prosecution. The Charter itself contains no provisions as to whether and under what conditions a separation or withdrawal from a common plan is possible. This does not justify the conclusion, however, that such a withdrawal should be excluded as a matter of principle. That assumption is precluded by the very reason that the Charter quite clearly does not purport to give an exhaustive ruling on all questions of substantive and procedural law. If a withdrawal is permitted in Anglo-American law as a matter of fundamental principle, this should be possible with more reason under the Charter. For the Charter represents a compendium of principles in which institutions of continental European law are also given consideration. Continental European law proceeds quite unequivocally from the idea that the responsibility of the perpetrator under criminal law extends only so far as his actions or omissions are controlled by his will. The withdrawal from the attempt, as a reason for acquittal, has therefore become an institution which can be found in almost all European codes of law. If, according to Anglo-American law, withdrawal from the conspiracy is possible, there can be no doubt as to that possibility's existing, in principle, according to the Charter.
DR. SEIDL: There is all the more reason for that assumption, in that it has been a practice on principle to apply German law in cases where the Charter fails to establish a binding rule. With regard to the Defendant Rudolf Hess, there should be even less reason for doubt, because the acts charged against the Defendant Rudolf Hess were committed within the territory of the German Reich. According to generally accepted principles of law, as they find expression in particular in the so-called international penal code of all nations, the so-called let loci, that is, the law of the place where the act was committed, is binding in this case. Applying these principles to the behavior of the Defendant Rudolf Hess and to his flight to England of 10 May 1941, it follows in the first place-and-the evidence likewise did not produce anything to the contrary-that all the subsequent developments could not have been controlled by his will. His influence on the course of events within the development of the war as a whole ceased, at the latest, with his flight to England. It contradicts all principles of penal law, as they are derived from the codes of law of all civilized nations, to hold someone criminally responsible for acts and results upon which he had no influence, and was no longer able to exert any influence, and which he did not adopt by his own volition. In this connection reference should also be made to the Prosecution's contention that the Defendant Hess did not undertake his flight to England in order to create favorable conditions for peace negotiations. That, on the contrary, it was his intention-this is the argument of the Prosecution-thus to protect Germany's rear in her planned campaign against the Soviet Union. The documents submitted by the Prosecution do not provide any basis for this assumption. To begin with, this is contradicted by the fact that the Defendant Hess had already decided on the flight as early as June 1940, in other words, at a time when no one in Germany thought of a campaign against the Soviet Union.
DR. SEIDL: On the contrary, from the letter which the Defendant Hess left behind and which was handed to Adolf Hitler at a time when Hess had already landed in England, it becomes perfectly clear that Hess had no knowledge of the impending campaign against the Soviet Union. In this letter the Defendant Hess did not state by a single word- and this is established by the testimony of the witness Fath, who read the letter herself-that the purpose of his flight was to cover Germany's rear for the impending campaign against the Soviets. In that letter Hess did not mention the Soviet Union by a single word. It must rather be assumed, with a probability which almost amounts to certainty, that if Hess had had knowledge of the proposed attack, and if he had intended to combine the intention with his flight, which the Prosecution now claims, Hess would have dealt with that question. In this connection I should like to refer the Tribunal to Exhibit Number USA-875, Document Number 3952-PS which also clearly shows that Hess can have had no knowledge of the impending campaign against the Soviet Union. But even if Hess had had definite knowledge of the planned campaign against the Soviet Union, this would not oppose the reason for his acquittal under criminal law in regard to the subsequent period of time. Evidence has shown that in ordering the attack against the Soviet Union, the idea of anticipating a forthcoming attack on the part of the Soviets was by no means last in Hitler's mind. I refer to the report of the American Chief of Staff Marshall, which I have already read. It is immaterial in connection with the question to be examined here, whether such an attack was actually planned by Soviet Russia and was imminent. Statements made by the Defendant Jodl while in the witness box must make this appear at least very likely, if not absolutely certain. The decisive point here is merely that on the basis of the reports he had before him Hitler personally was of that opinion.
DR. SEIDL: Had the Defendant Rudolf Hess been successful in establishing the necessary conditions for armistice and peace negotiations in England, the political and military situation in Europe would have been so fundamentally changed that under these 2S July 46 modified conditions an attack by the Soviet Union on Germany would have appeared most unlikely, and the apprehensions entertained by Hitler would have become untenable. The attempt made by the Defendant Hess in his flight to England would also maintain its character as a reason for acquittal under criminal law for all that happened after 10 May 1941, and in carrying out the common plan alleged by the Prosecution, even if it were argued that it was not the fear of an imminent Soviet attack which prompted Hitler in his decision, but the embarrassing economic situation in which Germany found herself as a result of the failure of the invasion of England. For with the ending of war with England, this embarrassing economic situation of Germany would also have came to an end; at least it would not have been so stringent. In conclusion, it may be said that in undertaking his flight to England, which was linked with his plans for the restoration of peace, the Defendant Hess committed his entire person in an attempt which obviously sprang from the desire to avoid further bloodshed at all costs. In application of principles of law such as are derived from the penal codes of all civilized nations, and especially in application of German penal law-which if doubt arises is to be taken as a basis for this question-the conclusion must be drawn that the criminal responsibility of the Defendant Hess will in any case be confined to acts which were committed prior to the flight to England. Your Honors, the past war has brought misery upon the whole of mankind to an almost unimaginable extent; it has turned Europe into a continent bleeding from a thousand wounds and left Germany a field of ruins.
DR. SEIDL: It appears certain that at the present stage of modern technical developments, humanity would not survive another world war. As far as it is humanly possible to foresee, this would completely annihilate civilization, which has already suffered unspeakably in this war. It appears therefore only too understandable if, under these circumstances, an endeavor should be made in the name of humanity, which is struggling for its existence, to leave nothing untried, even from the legal standpoint, to prevent the repetition of such a catastrophe. There can, however, be no doubt that the law, whatever its strength may be in social life, can only play a subordinate part in the prevention of war. This applies without any limitation as long as the community of nations is composed of sovereign states which acknowledge no legal code derived from a superior authority, and as long as no procedure and no organization exists which by virtue of its own authoritative power could establish laws legally limiting the legitimate claims of the nations and bringing them into harmony with one another. As long as these conditions are not fulfilled, justice cannot be in the domain of international relations the regulating force it is in national life where it rests directly upon the power of the state which is behind it. Tempting as it may be to try to establish at least an improved and more powerful body of international law on the ruins left us by the past world war, such an attempt must be doomed to failure from the outset if it does not coincide with a comprehensive new order of all international relations and if international law is not simultaneously an essential part of an order which guarantees the indispensable rights of all nations and which assures in particular the satisfaction of the legitimate claims of every nation to a proportionate share of the material wealth of the world. The Charter of the International Military Tribunal is undoubtedly not part of such a general new order.
DR. SEIDL: It was enacted by the victorious powers for a limited duration, namely, as a foundation for a criminal trial against the statesmen, military commanders, and economic leaders of the Axis Powers which had been defeated in war. The contents of the London Agreement made the Charter of the International Military Tribunal, which constituted an essential part of this agreement, appear as a legislative measure ad hoc by reason of the very time limit of one year stipulated by Article 7. As a matter of fact, it can scarcely remain doubtful that essential parts of the Charter are not in accordance with the general convictions of all members of the international legal community and that they do not, therefore, constitute really valid international law. Under these circumstances, a conviction for a crime against the peace and for participation in a common plan to initiate a war of aggression could only take place at variance with prevailing international law if the Tribunal decided, in violation of the principle nulla poena sine lege, upon a juridical extension of international law. Great as this temptation may be, its consequences would be incalculable. Not only would a principle be violated which is derived from the principles of the criminal law of all civilized nations and constituted in particular an integral component of international law, namely that an act can be penalized only when its penal character has been juridically specified prior to the commission of the act; but above all, in view of the fact that in the present Trial facts were revealed which excluded jurisdiction on Counts One and Two of the Indictment and the jurisdiction of the Tribunal so far, the violation of the principle nulla poena sine lege, combined with these special circumstances, must put the concept of law in doubt altogether.
DR. SEIDL: A violation of so fundamental a legal principle inherent in all judicial systems-and that applies to international law as well-as expressed in the maxim nulla poena sine lege, and even more so in the postulate that nobody must be a judge in re sua would not only obstruct any further development of international law but would, furthermore, indubitably lead to an increased legal insecurity. If the way for genuine progress in international legislation is not to be obstructed, then only the actual international code which was valid at the time the acts were committed can be considered as the legal basis for the judgment of this Tribunal.
THE PRESIDENT: The Tribunal will now adjourn. [The Tribunal adjourned until 26 July 1946 at 1000 hours.]
THE PRESIDENT: I call on the chief prosecutor, the United States of America.
MARSHAL: May it please the Tribunal, the Defendant Hess is absent.
MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States): Mr. President and Members of the Tribunal: An advocate can be confronted with few more formidable tasks than to select his closing arguments where there is great disparity between his appropriate time and his available material. In 8 months-a short time as state trials 'go-we have introduced evidence which embraces as vast and varied a panorama of events as has ever been compressed within the framework of a litigation. It is impossible in summation to do more than outline with bold strokes the vitals of this Trial's mad and melancholy record, which will live as the historical text of the twentieth century's shame and depravity. It is common to think of our own time as standing at the apex of civilization, from which the deficiencies of preceding ages may patronizingly be viewed in the light of what is assumed to be "progress." The reality is that in the long perspective of history the present century will not hold an admirable position, unless its second half is to redeem its first. These two-score years in the twentieth century will be recorded in the book of years as one of the most bloody in all annals. Two World Wars have left a legacy of dead which number more than all the armies engaged in any way that made ancient or medieval history. No half-century ever witnessed slaughter on such a scale, such cruelties and inhumanities, such wholesale deportations of peoples into slavery, such annihilations of minorities. The terror of Torquemada pales before the Nazi Inquisition. These deeds are the overshadowing historical facts by which generations to come will remember this decade. If we cannot eliminate the causes and prevent the repetition of these barbaric events, it is not an irresponsible prophecy to say that this twentieth century may yet succeed in bringing the doom of civilization. Goaded by these facts, we were moved to redress the blight on the record of our era. The defendants complain that our pace is too fast. In drawing the Charter of this Tribunal, we thought we were recording an accomplished advance in international law.
MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States): But they say we have outrun our times, that we have anticipated an advance that should be, but has not yet been made. The Agreement of London, whether it originates or merely records, at all events marks a transition in international law which roughly corresponds to that in the evolution of local law when men ceased to punish crime by "hue and cry" and began to let reason and inquiry govern punishment. The society of nations has emerged from the primitive "hue and cry," the law of "catch and kill." It seeks to apply sanctions to enforce international law, but to guide their application by evidence, law, and reason instead of outcry. The defendants denounce the law under which their accounting is asked. Their dislike for the law which condemns them is not original. It has been remarked before that: "No thief o'er felt the halter draw with good opinion of the law." I shall not labor the law of this case. The position of the United States was explained in my opening statement. My distinguished colleague, the Attorney General of Great Britain, will reply on behalf of all the chief prosecutors to the defendants' legal attack. At this stage of the proceedings, I shall rest upon the law of these crimes as laid down in the Charter. The defendants, who except for the Charter would have no right to be heard at all, now ask that the legal basis of this Trial be nullified. This Tribunal, of course, is given no power to set aside or modify the agreement between the Four Powers, to which 18 other nations have adhered. The terms of the Charter are conclusive upon every party to these proceedings. In interpreting the Charter, however, we should not overlook the unique and emergent character of this body as an International Military Tribunal. It is no part of the constitutional mechanism of internal justice of any of the signatory nations. Germany has unconditionally surrendered, but no peace treaty has been signed or agreed upon. The Allies are still technically in a state of war with Germany, although the enemy's political and military institutions have collapsed.
MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States): As a military tribunal, this Tribunal is a continuation of the war effort of the Allied nations. As an International Tribunal, it is not bound by the procedural and substantive refinements of our respective judicial or constitutional systems, nor will its rulings introduce precedents into any country's internal system of civil justice. As an International Military Tribunal, it rises above the provincial and transient and seeks guidance not only from international law but also from the basic principles of jurisprudence which are assumptions of civilization and which long have found embodiment in the codes of all nations. Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a Trial which they, in the days of their pomp and power, never gave to any man. But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of sour strength. The Prosecution's case, at its close, seemed inherently unassailable because it rested so heavily on German documents of unquestioned authenticity. But it was the weeks upon weeks of pecking at this case, by one after another of the defendants, that has demonstrated its true strength. The fact is that the testimony of the defendants has removed any doubt of guilt which, because of the extraordinary nature and magnitude of these crimes, may have existed before they-spoke. They have helped write their own judgment of condemnation. But justice in this case has nothing to do with some of the arguments put forth by the defendants or their counsel. We have not previously and we need not now discuss the merits of all their obscure and tortuous philosophy. We are not trying them for the possession of obnoxious ideas. It is their right, if they choose, to renounce the Hebraic heritage in the civilization of which Germany was once a part. Nor is it our affair that they repudiated the Hellenic influence as well.
MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States): The intellectual bankruptcy and moral perversion of the Nazi regime might have been no concern of international law had it not been utilized to goosestep the Herrenvolk across international frontiers. It is not their thoughts, it is their overt acts which we charge to be crimes. Their creed and teachings are important only as evidence of motive, purpose, knowledge, and intent. We charge unlawful aggression but we are not trying the motives, hopes, or frustrations which may have led Germany to resort to aggressive war as an instrument of policy. The law, unlike politics, does not concern itself with the good or evil in the status quo, nor with the merits of the grievances against it. It merely requires that the status quo be not attacked by violent means and that policies be not advanced by war. We may admit that overlapping ethnological and cultural groups, economic barriers, and conflicting national ambitions created in the 1930's, as they will continue to create, grave problems for Germany as well as for the other peoples of Europe. We may admit too that the world had failed to provide political or legal remedies which would be honorable and acceptable alternatives to war. We do not underwrite either the ethics or the wisdom of any country, including my own, in the face of these problems. But we do say that it is now, as it was for sometime prior to 1939, illegal and criminal for Germany or any other nation to redress grievances or seek expansion by resort to aggressive war. Let me emphasize one cardinal point. The United States has no interest which would be advanced by the conviction of any defendant if we have not proved him guilty on at least one of the Counts charged against him in the Indictment.-Any result that the calm and critical judgment of posterity would pronounce unjust would not be a victory for any of the countries associated in this Prosecution. But in summation we now have before us the tested evidences of criminality and have heard the flimsy excuses and paltry evasions of the defendants.
MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States): The suspended judgment with which we opened this case is no longer appropriate. The time has come for final judgment and if the case I present seems hard and uncompromising, it is because the evidence makes it so. I perhaps can do no better service than to try to lift this case out of the morass of detail with which the record is full and put before you only the bold outlines of a case that is impressive in its simplicity. True, its thousands of documents and more thousands of pages of testimony deal with an epoch and cover a continent, and touch almost every branch of human endeavor. They illuminate specialties, such as diplomacy, naval development and warfare, land warfare, the genesis of air warfare, the politics of the Nazi rise to power, the finance and economics of totalitarian war, sociology, penology, mass psychology, and mass pathology. I must leave it to experts to comb the evidence and write volumes on their specialties, while I picture in broad strokes the offenses whose acceptance as lawful would threaten the continuity of civilization. I must, as Kipling put it, "splash at a 10-league canvas with brushes of comet's hair." The Crimes of the Nazi Regime. The strength of the case against these defendants under the conspiracy Count, which it is the duty of the United States to argue, is in its simplicity. It involves but three ultimate inquiries: First, have the acts defined by the Charter as crimes been committed; second, were they committed pursuant to a Common Plan or Conspiracy; third, are these defendants among those who are criminally responsible? The charge requires examination of a criminal policy, not of a multitude of isolated, unplanned, or disputed crimes. The substantive crimes upon which we rely, either as goals of a common plan or as means for its accomplishment, are admitted. The pillars which uphold the conspiracy charge may be found in five groups of overt acts, whose character and magnitude are important considerations in appraising the proof of conspiracy. 1.