dtufail/nuremberg-trials-corpus huggingface dataset:
DR. STAHMER: Mr. President, to begin with, I should like to remark that I have still to complete the Case Katyn. The Case Katyn could not be incorporated into the book which has been submitted to the Tribunal, because the hearing of the evidence only took place on Monday and the day before yesterday. I shall have to present it, therefore, without its being in the book. It is only a brief presentation, and the interpreters will receive copies of my draft. Unfortunately, however, I cannot submit a translation to the Tribunal at the moment, as the hearing of the evidence was concluded only the day before yesterday and I could not work on it before. I shall add this at a suitable moment, and I hope that in spite of this I shall be finished within the time I mentioned. [The proceedings were interrupted by technical difficulties in the interpreting system.]
THE PRESIDENT: Is that all right now? Go on, Dr. Stahmer.
DR. STAHMER: When I mentioned the time I should require I could not take into account the Katyn Case. Nevertheless, I hope that I shall be able to finish in the time which I have stated, as I am shortening the report in some places and I believe I shall have sufficient time. May it please the Tribunal: This Trial, of truly historical and political importance, and of great significance in shaping new laws, is of dimensions such as have not been known hitherto in the history of law; these proceedings which concern not only the defendants present in the Court, but which are of the greatest importance to the entire German people, are now entering upon a new phase. The Defense takes the floor. The position of the Defense in these proceedings is especially difficult; for there is an all too unequal distribution of strength between the Prosecution and the Defense. Months before the start of the Trial the Prosecution was in a position to search all offices and archives in Germany and abroad with a large staff of experienced collaborators, as well as to examine witnesses in all countries. Thus they were able to submit to the Tribunal an immense amount of evidence. The difficult position of the Defense is further aggravated by the fact that in the Anglo-American procedure on which this Trial is based there is a clause missing which is contained in the German criminal procedure according to which the Prosecution is also bound to procure and submit evidence exonerating the accused...
THE PRESIDENT: Dr. Stahmer, let me tell you that the statement you have just made is entirely inaccurate. There is no such thing as an English code of criminal procedure, but it is the universal practice for the Prosecution to disclose to the Defense any document and any witness who assists the Defense and therefore your statement is entirely false-and I believe that same practice obtains in the United States. And as for what you say here about the Defense being under any unfair difficulties as compared with the Prosecution, that also is entirely inaccurate because I feel certain that the Prosecution in this case have observed the same rules that would have been observed in England and would have disclosed to the Defense any document or any witness over whom they had control who would assist the Defense, and there have been various occasions on which the Prosecution have disclosed in this case to the Defense documents which have been supplied to them, which appeared to them to help the Defense. Every document which has been put in by the Defense in this case-or practically every document-has been procured for them after great efforts by the Prosecution, and investigations have been made all over Germany and, I may say, almost all over the world in order to help the Defense in this case.
DR. STAHMER: Thank you for your instruction, Mr. President. After the reading of the Indictment, Reich Marshal Goering, in reply to the question of the presiding judge as to whether he pleaded guilty or not guilty, declared, "Not guilty in the sense of the Indictment." This statement of the accused necessitates an examination of all the charges made by the Prosecution. The accused has, of course, already during his personal examination dealt with many questions which are of considerable importance for his defense. He expressed his opinion in detail with regard to political and military developments and exhaustively described the motives for his actions, and the origin and course of events. I am thankful to the High Tribunal for permitting the accused to portray matters to the total extent to which he saw, felt, and experienced them, for only such direct personal portrayal can afford good insight into the attitude of the accused, thus making it possible to obtain a reliable opinion of his personality. This knowledge is absolutely necessary if the Tribunal is to come to a decision which is not only in harmony with objective law, but which also renders the maximum of justice to the individuality of the perpetrator. I do not consider it necessary-after the accused was heard so exhaustively on all particulars-to deal with every question to which he has already given the requisite explanation. For this reason I can limit the defense to the following statements: We are in a transitory period of history of the greatest significance. An age is coming to an end which has been known less for its concept of order than for its concept of liberty. This striving for liberty released tremendous forces-so gigantic that in the end it was impossible to master them' The tremendous progress this era has unquestionably made in scientific and technical spheres we have dearly paid for with the shattering of all human order and the loss of peace in the entire world. So far the profound reasons for such a disastrous development have hardly been discussed in this Court.
DR. STAHMER: But in order to under stand properly the grave crimes and aberrations which are indicted here it is imperative to throw some light on the historical background. The French chief prosecutor has already pointed out that the roots of National Socialism are to be found in a period far removed from us. He goes back to the beginning of the last century. He sees the first step to a leading astray of the German character in Fichte's Reden an die deutsche Nation (Speeches to the German Nation). Fichte preached the doctrine of Pan-Germanism, he says, insofar as he wanted to see the world planned and organized by others, just as he himself saw it and would have liked it to be shaped. I cannot understand how this can be taken to express more than the universal human desire to take part in the shaping of a common destiny. Only the methods of such attempts to participate may, at times, be justly criticized. A Swiss assertion, which also perceives in Fichte the cause of Germany's going astray, seems to me to be clarifying in this respect. It does not, however accuse him of Pan-Germanism, that is, of the will to subjugate foreign peoples but rather reproaches him for having attempted at all to unite the Germans into one nation. It contends that this was an inadmissible attempt to imitate the French and British, whereas it would have been more suited to the German character to remain a nation made up of different peoples. For only as such could it have continued its historical mission of remaining the nucleus of a European federation. Judging by Fichte alone the development is therefore not so easily interpreted. If one wishes to think historically, one cannot simply fall back on Fichte. For his Reden an die deutsche Nation was only an answer to the "Call to Everyone" which the French Revolution had sent out into the world, and they were directly provoked by the appearance of Napoleon I. One must go back over the chain of causes and effects to their very beginning.
DR. STAHMER: This, the beginning of a national and personal striving for liberty which has characterized the whole of modern times, we find in the Middle Ages. The colorful play of national and imperial tendencies and struggles which had been the hallmark of ancient times was overcome by the conception of one eternal and omnipotent Christian Church. With this a static order superseded the dynamic forces of the time, an order which according to the doctrine of the Church was created by the Lord himself and was therefore by "the grace of God." It strove to embrace all humans, and to lead them to peace and rest. It was the teachers of the Church in the Middle Ages who first ventured to subject war to the principles of law. Prior to that it was accepted as a natural phenomenon, like sickness or bad weather, and was often looked upon as a judgment of God. Men like St. Augustine and Thomas Aquinas opposed this conception and declared that one must differentiate between a just and an unjust war. They did this upon the basis and within the framework of a Christian belief, by which God had entrusted mankind with the fulfillment of a moral world order to bind one and all; an order which would provide the answer to the question of the righteousness or unrighteousness of a war. When by the advent of the Renaissance and the Reformation the spiritual basis of the medieval order was shaken, this development into a universal world peace was reversed. Life, formerly tending toward stagnation and tranquillity, now turned into a torrent which, as it swept ever faster through the centuries, gradually swelled to the present catastrophe. The individual, thirsting for freedom, cast off the shackles of Church and class distinction. The State, declaring itself sovereign, violated the universal order of God as represented by the Church. Not recognizing any superior power, it began to conquer as much living space as it could on this earth, unless the stronger will of another nation did not impose any natural barriers.
DR. STAHMER: Peace hence existed only in the naturally rather unstable equilibrium of powers obeying only their own laws. Thus there came into existence world empires such as the British Empire, Russia, the United States, and the enormous French colonial empire, which as living space today comprise more than one half of the surface of the entire world. The theory of war as a crime, created by Grotius, the teacher of international law quoted by the Prosecution, failed because it was incompatible with the dynamic power of this time. It represents, as we know, only an attempt to keep alive through secular arguments the aforementioned Christian concept of warfare. One cannot, however, derive justice from simple nature, for it knows no other measure than brute force, and always decides in favor of the stronger. Only metaphysically can justice be defined as an independent force set above natural impulses. Therefore the theory of Grotius necessarily petered out in the eighteenth century since, thinking in a purely worldly sense, it could not find a criterion for a just war. This development from the old order to new liberty, in other words, the fight of all against all, found its climax and culminating point in the great French Revolution. By attempting to set human intellect upon the throne of God, they reached the apex of secularization. Human intellect, however, proved unable to balance the convicting ideals of liberty, equality, and brotherliness, that is, to practice true justice. From that time on the search for true justice stirs the world. All socialist theories are merely attempts at solving this problem. After having been disappointed by the disadvantages 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 proceed in order yet to solve the problem through human intellect.
DR. STAHMER: The National Socialists, whose most revolutionary leaders wanted to go further backward, and at the same time forward to deification of life itself in a biological-political sense, have been conquered and eliminated. Yet no solution of the problems of world order has hitherto been found. The victorious powers hope to arrive at it, however, in drawing a line between themselves and the vanquished by jointly indicting and punishing them as criminals. From whence, however, will they take the standard by which to define justice and injustice in a legal sense? Insofar as such standards exist by international law as applied up to now, no further statements are required. That a special Court for the Trial was created by the Charter of this Tribunal I will not object to. I must, however, protest against its use, insofar as it is meant to create 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. One cannot, by an arbitrary act, suddenly create new law when, after centuries of revolutionary development, the old universal principles of medieval law have been gradually abolished and the autonomous thinking of the individual in the moral field has opened gate and door to anarchy. As we know, the very cause of the general state of anarchy in the sphere of justice, from which originated the crimes that are the subject of the accusation here, was the fact that people had forgotten to differentiate between might and justice. The success of so many revolutions over once legitimate rulers "by the grace of God" has shown that might apparently goes before right and that the latter can be changed at will. By what would it then be possible to tell what is right except through the force with which it is able to assert itself and hold its own? This relativity of law which had come about, this positivism of law, no longer concerned itself with a moral justification of law.
DR. STAHMER: Can one expect that punishment will be recognized as just, if the culprit was unable to foresee any punishment because at the time he was not threatened thereby, and therefore believed himself able to derive the authorization for his way of acting solely from the political aims pursued? Of what help is reference to the ethical laws, if such must first be 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 will be discussed later. In fact this Indictment, as the entire argumentation of Justice Jackson, is far ahead of its time. For there were no internationally recognized standards according to which-outside of positive international law-the legitimacy of states and their aims could have been judged, nor was there an international community as such. Slogans about the legitimacy of one's own and of the illegitimacy of foreign aspirations served only the formation of political fronts, just as did the efforts to brand political adversaries as disturbers of the peace. Whatever they did, they certainly did not create law. Justice Jackson correctly declared that it would have been possible for the conquerors to deal with the conquered as they saw fit. But, said he, nondiscriminatory punishments without a final and fair establishment of guilt would be a breach of promises repeatedly given and would be a heavy burden on America's conscience. For that reason he himself proposed judicial proceedings which were to differ from ordinary criminal proceedings by not admitting the usual tactics of obstruction and delay by the defendants. However, an establishment of guilt was to be arrived at on the basis of a just and fair trial.
DR. STAHMER: 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 to be given to defend their lives "in the name of justice." If this phrase is to have a meaning, then it must also be of significance for the interpretation of the Charter, because it would not be reasonable if the Court were obliged to rest exclusively upon the Charter without taking into consideration the convictions of others with regard to law. In that case the judgment would represent a mere dictate of force, against which there would be no defense "in the name of justice." The Charter may therefore be applied by the Court only insofar as its decrees are justifiable in all conscience, not only formally but also materially. The Charter itself says that nobody shall be excused for a violation of its decrees on the grounds of orders from his government or from 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 legal concept. For a judge, after all, is far more free and independent of the legislator than a subordinate of his superior, or a subject of his dictator. Then there is another question, namely, whether the decrees of the Charter are really so much in opposition to the previous and ordinary state of law, especially as to the fundamental ideas of all rules of law, that the Court cannot acknowledge them as right or apply them. In practice, the most serious problem consists in deciding which should have precedence in the case of conflict-the Charter or the legal maxim nulls poena sine lege. An attempt has been made to justify disregard of this rule in this specific instance with the highly political character of the Trial. Such a justification, however, cannot possibly be accepted.
DR. STAHMER: The political significance of a trial is usually apparent from its consequences rather than during the course of the procedure and through the influence exercised upon the legal norms to be applied. A judge should administer law, and not deal in politics. Still less is he called upon to rectify mistakes made by the politicians. Punishment, the establishment of which in due time was neglected, may only be meted out by him on the strength of a subsequent law if he would have done so in any case. Basically, the principle of the division of power is presumably to 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 the division of power characterizes the modern constitutional state. Straining the point somewhat, one might define the field of activities and competency of the three different forms of expression of sovereign authority by stating that the legislature has to deal with the future, the administration with the present, and the 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 must remain valid. Insofar as a mere establishment of norms of life is not sufficient it will be shaped, as the case arises, by the administration. Administration itself is bound by certain norms, but on principle is free to move within the lawful bounds of its good judgment, so as to be able to respond to the daily changing needs. Just as for the law-making politician, the idea of serving a purpose is its main consideration. 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 shape, but to judge.
DR. STAHMER: He has to pass judgment on actions after they have been committed, and examine conditions after they have arisen in the light of whether and to what extent they corresponded to the standards, or what juridical consequences they have brought about. Therefore, as a matter of principle, his view is directed toward the past. In the life of the state, which is continuously inspired by politicians looking to the future, he is the restraining counterpole. Although bound by the laws decreed by the politician, he is not merely an executive organ. On the contrary, he should control the legislator by re-examining the laws with regard to their conformity to the constitution. This, logically, ought to include the examination of whether the principle of the division of power was maintained, because just as the judge may judge only de lege lata and must leave the decisions de lege ferenda to the legislator, the latter in turn is obliged to refrain from interfering with the former's competency by making laws with retroactive power. The criticism of the administration of justice by the National Socialist State is mainly based on its having abandoned the division of power. By putting at the top the political Leadership Principle, the Fuehrerprinzip, it interfered dictatorially with the competency of the judges. By means of the Police, that is, the administration, it arrested and imprisoned people without judicial warrant of arrest, simply for reasons of political prevention, and even rearrested 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, the sureness and clarity of the law were seriously endangered. But not even this National Socialist State dared renounce outright the principle nu1la poena sine 1ege praevia.
DR. STAHMER: In its police measures It dispensed with their justification by the judge exactly as today the execution of denazification sentences was justly not placed under the jurisdiction of the Ministry of Justice by the Regional Council of the American Zone, on the grounds of being "alien to justice." By three laws, however, the National Socialist State decreed an increase in the scope of punishment previously in force with retroactive validity, but they did not provide penalties for acts hitherto unpunishable. More particularly, this was not brought about by the fact that by Article 2a of the Criminal Code the possibility of criminal analogy was created, because by this article a threat of punishment only was created, although not retroactively; and everybody was enabled to conform. A certain degree of protection against arbitrary judgments 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, Hans Fehr, of Berne, already in 1927 wrote in his book, Recht und Wirklichkeit; Einblick in Werden and Vergehen der Rechtsformen: "Without ideology law floats in a vacuum.... Whoever has no ideology can have no sense of right and wrong..." Fehr showed that every judge, as far as the law allows him latitude judges individually according to his ideology. In an era of liberal freedom of ideology this naturally brought forth a danger for the uniformity and sureness of the law. Therefore the liberal state in particular had to make its criminal court judges conform closely to the codified substance in each case and forbid them to employ analogies. Fehr already pointed out the danger inherent in such judgment based on codified substance, tending to give undue preponderance to the act over the perpetrator. Following the lines of a dynamic jurisprudence, the liberal school of legal conception, he therefore advocated an extension of the judge's authority to create law.