dtufail/nuremberg-trials-corpus huggingface dataset:
DR. STAHMER: In that sense, as will be understood from the above, the nonliberal states directed by a. definite ideology had taken the lead. The Soviet Union after the Marxists had already long ago rejected the liberal, allegedly objective, jurisdiction as "bourgeois class justice," was the first introduce a proletarian class justice which deliberately abandoned the idea of the equality of all before the law. The National Socialists, according to their racial ideology, followed suit by forming the thesis, "Right is what serves the people, wrong is what injures it." Inside such a solid ideological frame the dangers of criminal analogy, which were still further narrowed clown by Article 2a of the Criminal Code, dwindled considerably. In contrast to this, no fixed ideological base as a foundation for the Charter is discernible. Since 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 to 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. It would be all the more unintelligible and intolerable for the German sense of justice if this phrase were not to apply to Germans accused of War Crimes. In itself the Charter is an exceptional law by the mere fact that it was created only against members of the Axis Powers and based on an agreement made for one year and subject to notice. If, in addition, it should abolish the maxim nu1la poena sine lege praevia, specifically for actions that were not only within the scope of German legality, but under most severe penalties had even been made a duty by the Government of the sovereign German State, then all understanding would cease- for the interpretation that the Court is bound by the Charter.
DR. STAHMER: Nor is an examination of the political aims connected with the Charter of any assistance. Justice Jackson has called the Charter and the Trial a step toward "creating a juridical guarantee that he who starts a war will pay for it personally." 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 them. The means for combating the disease of war would have been just as bad as the disease itself. In consequence of the fiasco of the collective methods the conception of basing security in the future upon holding responsible those individual persons accountable for breaking the peace was evolved by the enemies of Germany in the last war. And this finally led to the Nuremberg Trial. Taking one's starting point from this fact, today one might say: During this second World War revolutionary developments have taken place; it has driven humanity beyond the bounds of what was the modern age until a short time ago. The first but essential steps to create a world state have been made. The way to peace, as shown here, will be welcomed on principle, although one will still 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 somebody certain of victory will decide to wage a war and thus will not seriously consider punishment, which would reach him only in the case of defeat. Therefore the educational issue of this Trial, namely, to strengthen the sense of justice, seems more important than the effect of intimidation, which can also be achieved by warning for the future.
DR. STAHMER: The politician will have to learn that the principle of division of power will have to be observed by him, too, and that he will not find a judge willing subsequently to condone his mistakes, because he will also punish him on the basis of subsequent laws. Confidence in international jurisdiction, which today still suffers from a suspicion of being easily misused for political purposes, would be heightened considerably through such a pronouncement. On the other hand, it would most certainly suffer by the sentencing of acts whose punishable quality remained doubtful. Thus the violation of the sentence nulla poena sine lege could not be justified even from the angle of political utility, although conversely 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 cannot be questioned on the basis of the individual considerations presented by the prosecutors. The French prosecutors have pointed out that living international law could not be imagined without international morals, and that a moral code has precedence over all claims for freedom by the individual as well as by the nations. These certainly are facts well worth bearing in mind. Correctly considered, however, they speak only for my viewpoint that any strengthening of the sense of justice must not start out with a violation. 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 countermotives. And there the one-sided action taken only against members of the Axis Powers violates the idea of justice.
DR. STAHMER: It is impossible to justify it by a direct violation of its own principles, that is, of the commonly prevailing rule: nulla poena sine lege. The British chief prosecutor himself declared the possibility of subsequent legislature to have been one of the most offensive doctrines of National Socialist jurisdiction. He does, however, believe that the possibility of punishing an act already branded as a crime does slot represent 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 as thereby justified by him. But the question certainly arises whether this Tribunal is obliged to punish even though no penal law can be found which threatened the offenses with punishment at the time of their commission. To affirm this question would be going much further than the National Socialist judicial procedure which is so vehemently denounced by the British chief prosecutor. He did not offer the slightest motivation for such a course, and appears thus to reject it. Moreover, he would certainly be ready to admit that the Charter, if it not merely presumed but possibly wished to establish that the acts concerned were punishable, ought to have stated this clearly and unambiguously. The passage involved, in Paragraph 6 of the Charter, completely lacks such clarity. It reads: "The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal." This may be interpreted either as a mere regulation of competence or, albeit with difficulty, as a regulation originally establishing some act as being punishable. Therefore, this passage must definitely be interpreted in favor of the defendants according to the established legal principle in dubio pro re. The next phrase, "for which there shall be individual responsibility," and the material regulations for punishment quoted in the following paragraphs, according to their wording leave no reason for doubt as to their interpretation.
DR. STAHMER: However, they contain only modifications in dealing with acts established as punishable. The Tribunal may decide whether or not and to what extent they are compatible with the principle nulla poena sine lege praevia. I find the viewpoint of the American prosecutor most difficult to understand. On the one hand he denounces all legal arbitrariness on the part of the Nazis, yet on the other hand he is not prepared to acquiesce in the punishment of the defendants only for those crimes which were not merely considered reprehensible at the time they were committed, but were actually threatened with punishment. On the one hand he does not desire executions or punishment without first having established guilt in a fair manner; on the other he demands a strict application of the Charter even where it contains new laws surprising the defendants. On the one hand he wants the Trial to appear to future generations as the fulfillment of the human yearning for justice; on the other, in the face of objections to the Charter, he invokes the power of the victorious, who really could have made short work of the defendants. It seems to me that he speaks too much as an accuser, the sole role he really wants to assume according to his own words. For the prosecutor- especially in Anglo-American procedure-the word "justice" has a different meaning than for the judge, let alone the defendant. Unquestionably Justice Jackson thinks of himself not only as a prosecutor but to a large degree also as politician. To him this Trial is to serve not only as an atonement for wrongs committed, but also, and above all, in order to develop legal principles which he wishes to enforce by precedence and from which he expects a consolidation of international law for the prevention of future wars. Whoever approaches a cause with so many preconceived opinions and intentions lives in so completely different a world from that of the defendants, that from them to him, and vice versa, hardly any ways of understanding will be found.
DR. STAHMER: As far as the political side of this Trial is concerned, I have already stated why it must not exert any influence on the course of the proceedings. I merely wish to point out here that a policy applied by the victors to the vanquished, which perhaps may be characterized as one of "least resistance," has once before proved to be a failure-namely, with regard to the question of disarmament under the Versailles Treaty. If Justice Jackson really wishes to forego straightforward decision by force and is prepared to become a party to and submit to a legal procedure, although not bound to do so, then he will have to forego presenting arguments which do not belong in a legal procedure. A hybrid, which is neither a clear act of violence nor a trial in the usual sense-however much one may try to place it in a halfway position under the name of a political trial-is an absurdity. It is true that history knows of other so-called "political" trials of similarly vague character. I want to point out only the sentencing of Louis XVI by the French National Assembly. There, however, it was clear from the composition of the judicial gremium as well as from the procedure employed that this was not a matter of finding justice but amounted simply to a revolutionary act of violence, and courage to proceed with it was found in mutual exhortation. But here outstanding professional judges have been entrusted with the proceedings by the victorious powers. They have been given certain directions by the Charter, but otherwise their judicial discernment was granted the most far reaching authority. There can be no doubt that the politicians called upon the judges to relieve them of a job which they could not manage themselves. And now the judges will have to decide by their own competence ff and in how far they are able to execute the mandate. With any remainder the politicians wUI have to manage somehow or other on their own.
DR. STAHMER: I was not able to pick a single one from among Justice Jackson's arguments which might cause the Tribunal to punish acts which were not punishable at the time of their perpetration. For this reason I shall examine the individual points of the Indictment only from the legal situation prevailing at the time of perpetration. Of the crimes of which all the defendants are accused the conspiracy is most extensive as regards time and object. Professor Exner, in his capacity as a university teacher of criminal law, has given special attention to this legal conception for our Trial. 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 of conspiracy belongs to the sphere of Anglo-American law. Even there, however, it is in no way uncontested; 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. (1) May a criminal procedure, bent on realizing justice, employ legal concepts which are and always have been utterly alien to the defendants and to the legal trend of thought of their people? (2) How would this be consistent with the rule nullum crimen sine lege praevia, a principle which the British chief prosecutor has acknowledged as a fundamental principle of civilized criminal law? Can it be honestly stated that already before 1939 not only the initiation of an illegal war was held to be an act punishable individually, but also the conspiracy to initiate such a war? The affirmative answer to this question given by the Prosecution has surprised not only Germany. May I clear up, in this connection, a misunderstanding.
DR. STAHMER: It has been said that the National Socialist State itself had issued criminal laws ignoring the rule of nullum crimen sine lege, so that the defendants had no right to invoke this rule. It is by no means my purpose to defend National Socialist criminal law, but honesty compels me to say that this is an error. The Third Reich has-as mentioned before-issued three laws increasing the penalty for an action with retroactive effect by applying the death penalty to acts which carried, when committed, prison sentences only. But in no case so far was a lawful act declared punishable, nor an act which was not a crime when committed retroactively converted into a crime. And that is the case here. However, the Charter, which I follow now, has enjoined the use of the concept of conspiracy. I do not, therefore, go any further into these questions of doubt. At any rate, it would appear therefrom that if such a concept is to be applied to Germans, this must only be done with all limitations imposed by equity. Anglo-American law defines conspiracy as an agreement between a number of persons to commit crimes, "a combination or an agreement between two or more persons for accomplishing an unlawful end or a lawful end by unlawful means." Similar definitions keep recurring. Two points form the main characteristics: "agreement" and "common plan." Agreement means an explicit or tacit understanding. If several persons pursue the same end independently of one another, then there is no conspiracy. It is accordingly not enough that the plan be common to all of them, they must have knowledge of this community and everyone must voluntarily accept the plan as his own. The very expression "to conspire" implies that everyone contributes knowingly and willingly. A person under duress is no conspirator, for duress does not produce agreement, at the utmost purely external assistance. For instance, if somebody imposes his will on another, then there is no conspiracy. Therefore, a conspiracy with a dictator at its head is a contradiction in itself.
DR. STAHMER: A dictator does not enter into a conspiracy with his followers; he does not make any agreement with them, he dictates. Knowledge and will of the conspirators are aimed at a common plan. The contents of such a plan can be very different. In English law, for instance, conspiracies are known for committing murder, fraud, blackmail, false accusation, certain economic delicts, and so forth. In all these cases, conspiracy is treated as a crime sui generis; and therefore the conspirators are punishable for conspiracy regardless of whether a murder, a fraud, or even a mere attempt at such crimes has been committed in any given case. According to German terminology, we would say that conspiracy is one of the cases where even preparation of a crime is punishable. Such cases are known to German criminal law. The partner in an agreement for committing a crime against life is punishable. According to Article 49b he is punishable for a crime of preparing a killing even if the intended action failed to take place. In a certain sense Article 129 can also be applied here. Participation in an association pursuing certain aims hostile to the state is punishable, again independently of whether a crime has actually been committed. But if it becomes a fact, everybody is charged with his own culpability in this action. If it happens that the individual conspirator is guilty neither as the perpetrator, nor as an instigator, nor as an accessory to the actual crime, then he can be charged only with participation in an association hostile to the state, but not with such a crime. The prosecutors in this Trial go further. They want to punish, under certain circumstances, the conspirators for individual actions they did not participate in. To take the most significant example: They want to charge a conspirator even with those crimes which were committed prior to his entering the conspiracy. With the scant material at my disposal, I was not able to find any evidence that this has any foundation in English or American law.
DR. STAHMER: One thing is certain, however, that such a conclusion is utterly contrary to the German criminal law, for the latter is based on the self-evident and unanimously accepted principle that a person is responsible for an action only when he was the author, or at least the coauthor of it. Let us now look at the Charter. The Charter quotes two cases which are declared as punishable and which fall within the competence of the Court: (1) Article 6(a) states: Participation in a Common Plan or Conspiracy for the perpetration of a Crime against Peace. As such are listed the planning, preparation, launching, and conducting of a war of aggression or of a war involving the violation of international treaties or assurances. It is remarkable that a concept which belongs to the internal criminal and civil law of England and America is applied here, without more ado, to international facts. The Charter does this by treating individuals who plan or conduct illegal wars as gangsters participating in a highway robbery. This is a piece of legal audacity, because in this case the sovereign state stands between the individuals and the result of their actions, and this removes all foundation from the comparison with facts in national daily life. Up to now the concept of conspiracy has been unknown to international law. (2) According to the last paragraph of Article 6 of the Charter, the partners in a conspiracy or in a common plan to commit crimes against peace, the law of war, or humanity are responsible for all actions committed by any partner while executing such a plan. This is fundamentally quite another thing from the case mentioned in (1). It does not mean punishment of the crime of conspiracy, but responsibility for the individual act of another conspiracy. In other words, conspiracy, as taken here, is not a crime sui generic, but a form of complicity in the actions of the conspirators. Mr. Justice Jackson has given us an example: If three robbers conspire and one of them kills the victim, then all of them, through their complicity, are responsible for the killing.
DR. STAHMER: The case mentioned under (2) is of the greatest importance in this Trial. The individual conspirator is to be punished for crimes committed not by himself, but by another conspirator. One defendant, who had nothing to do with the annihilation of the Jews, is to be punished for this Crime against Humanity only because he was a partner in a conspiracy. The question at issue is: In this Trial, are principles of liability to be applied which go beyond our German criminal law? Article 6 of the Charter says that all conspirators are responsible for any action committed by any one of the conspirators "in execution of such plan." These are the decisive words for the interpretation. In my opinion the meaning of these words is as follows: The other conspirators are also responsible for any actions of their comrades forming part of the common plan which they helped to conceive, desired, or at least condoned. A few examples: Case (a): A, B. C, and D commit a concerted housebreaking in a villa. They happen to find a girl in the house, and A rapes her. B. C, and D cannot be charged with this rape. The reason is that A was not, when committing the crime, acting "in execution of the plan" but at best "on occasion of the execution of the plan." The point at issue is not the execution, but merely the occasion arising while executing the plan. This view, which will hardly be disputed, is of importance in that it shows that there cannot be any question of responsibility for all the actions of the partners to the conspiracy. Case (b): While exploring the villa, B and C begin to fight about some loot and B knocks down C. This action, too, was not committed "in execution of the plan," but was foreign to the plan. A and D are not responsible for this "excess." The third case: While exploring the villa the burglars are detected by the owner. D shoots him. Now the issue depends on the special circumstances of the case. Let us, for instance, go back to the example, quoted by Mr. Justice Jackson, of the three robbers, one of whom kills the victim.
DR. STAHMER: Considering the nature of American gangsterism, it would appear quite normal that the individual gangsters concerned bore in mind the possibility of such an occurrence, and were quite prepared to accept it. If this is the case they are responsible for the killing, as accessories or assistants, according to our opinion as well. In such a case there would be no objection to Mr. Justice Jackson's solution. But if the case is different, if the fatal issue had not been foreseen by the others, perhaps could not be foreseen-for instance, if they assumed that the inhabitants of the house were away from home-then there exists no liability on the part of the coconspirators. They are responsible only for acts incidental to the "execution of the plan." The common plan, however, includes only what was foreseen and approved from the beginning. Other ways of execution are alien to the plan. Mr. Justice Jackson's argumentation is deceptive insofar as he derives a common principle from a decision which clearly and obviously happens to apply to the "normal case" of his parable of the robbers and can hardly be applied to any other case. As the case stands, coresponsibility in any single act could be made to apply to those conspirators only who foresaw and approved of their comrade's act. A legal principle extending the fellow conspirator's responsibility to actions not included in their common responsibility is alien to German law. Whether or not it belongs to Anglo-American law, the application of such a principle in the present Trial would make punishable acts which heretofore could not be punished. This would clearly contradict the rule of nullum crimen sine lege, a principle, as I previously emphasized, acknowledged explicitly by the British prosecutor, too. In view of the fact that Article 6 can be interpreted in various ways, we should select from two possible interpretations, as corresponding to the author's will, the one which does not contradict the said principle. There is such a thing as withdrawal from a conspiracy, and also later entrance into it.