I call on Dr. Jahrreiss.

PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Mr.

President and Gentlemen of the Tribunal, the main juridical and

fundamental problem of this Trial concerns war as a function forbidden

by international law; the breach of peace as treason perpetrated upon

the world constitution.

This problem dwarfs all other juridical questions.

The four chief prosecutors have discussed the problem in their opening

speeches, sometimes as the central theme of their presentation,

sometimes as a fundamental matter, while indeed differing in their

conceptions thereof.

It is now up to the Defense to examine it. The body of Defense Counsel

have asked me to conduct this examination. It is true that it is for

each counsel to decide whether and to what extent he feels in a position

to renounce, as a result of my arguments, his own presentation of the

question of breach of the peace. However, I have reason to believe that

counsel will avail themselves of this opportunity to such an extent that

the intention of the Defense to contribute materially toward a technical

simplification of the phase of the Trial which is now beginning, will be

realized by my speech.

I am concerned entirely with the juridical question, not with the

appreciation of the evidence submitted during the past months. Also, I

am dealing only with the problems of law as it is at present valid, not

with the problem of such law as could or should be demanded in the name

of ethics or of human progress.

My task is purely one of research; research desires nothing but the

truth, knowing full well that its goal can never be attained and that

its path is therefore without end.

I wish to thank the General Secretary of the Tribunal for having placed

at my disposal documents of a decisive nature and very important

literature. Without this chivalrous assistance it would not have been

possible, under the conditions obtaining at present in Germany, to

complete my work. The literature accessible to me originated

predominantly in the United States. Familiar as I am with the vast

French and English literature on this subject, which I have studied

during the last quarter of a century—I am, unfortunately, not

conversant with the Russian language—I believe, however, that I can

fairly say that no important concept has been overlooked, because in no

other country of the world has the discussion of our problem, which has

become the great problem of humanity, been more comprehensive and more

profound than in the United States.

This very fact has enabled me to forego the use of legal literature

published in the former German sphere of control. In this way even the

semblance of a _pro domo_ line of argumentation will be avoided.

Owing to the short time at my disposal for the purpose of this speech,

and at the same time in view of the abundance and complexity of the

problems with which I have to deal, it will not be possible for me to

cite all the documents and quotations I am referring to. I shall present

only a few sentences. Any other procedure would interrupt the train of

argument for the listener. I shall therefore submit to the Tribunal the

documents and literary references in the form of appendices to my

juridical arguments. What I am saying can thus quickly be verified.

The Charter threatens individuals with punishment for breaches of the

peace between states. It would appear that the Tribunal is accepting the

Charter as the unchallengeable foundation for all juridical

considerations. This means that the tribunal will not examine the

question whether the Charter, as a whole or in parts, is open to

juridical objections; yet such a question nevertheless continues to

exist.

If this is so, why, then, have any discussion at all on the main

fundamental legal problems?

The British chief prosecutor even made it the central theme of his long

address to examine the relationship of the Charter, where our problem is

concerned, to existing international law. He justified the necessity of

his arguments by saying that it was the task of this Trial to serve

humanity and that this task could be fulfilled by the Trial only if the

Charter could hold its own before international law, that is, if

punishment of individuals for breach of the peace between states was

established in existing international law.

It is, indeed, necessary to clarify whether certain stipulations of the

Charter may have created new laws, and consequently laws with

retroactive force.

Such a clarification does not serve the purpose of facilitating the work

of the historians. They will examine this, just as all the other

findings in this Trial, according to the rules of free research; perhaps

through many years of work and certainly without limiting the questions

to be put and, if possible, on the basis of an ever greater wealth of

documents and evidence.

Such a clarification is indispensable, if only for the reason that the

decision as to right and wrong depends, or may depend, thereupon, all

the more so if the Charter is considered legally unassailable.

Let us assume for the sake of argument that the Charter does not

formulate criminal law which is already valid but creates new, and

therefore retroactive, criminal law. What does this signify for the

verdict? Must not this be of importance for the question of guilt?

Possibly the retroactive law which, for instance, penalizes aggressive

war had not yet become fixed or even conceived in the conscience of

humanity at the time when the act was committed. In that case the

defendant cannot be guilty, either before himself or before others, in

the sense that he was aware of the illegality of his behavior. Possibly,

on the other hand, the retroactive law was promulgated at a time when a

fresh conscience was just beginning to take shape, although not yet

clear or universal. It is then quite possible for the defendant to be

not guilty in the sense that he was aware of the wrongfulness of his

commissions and omissions.

From the point of view of the European continental conception of penal

law, the fact that a person was not aware of doing wrong is certainly a

point which the Tribunal must not overlook.

Now the question as to whether the penal law contained in the Charter is

_ex post facto_ penal law does not present any difficulty as long as the

stipulations of the Charter are unequivocal and the prescriptions of

international law as applying to date are uncontested.

But what if we have regulations capable of different interpretations

before us or if the concepts of international law are the subject of

controversy? Let us take the first: A stipulation of the Charter is

ambiguous and therefore requires interpretation. According to one

justifiable interpretation the stipulation appears to be an _ex post

facto_ law; according to another, which can be equally well justified,

it does not. Let us take the second: The regulation is clear or has been

clarified by interpretation of the Court, but experts on international

law are of different opinions as to the legal position applying to date;

it is not certain whether we are not concerned with an _ex post facto_

law. In both cases it is relevant whether the defendant was conscious of

the wrongfulness of his behavior.

I intend to demonstrate how important these considerations are in this

Trial, and shall now begin the examination.

The starting points of the British and French chief prosecutors are

fundamentally different.

The British chief prosecutor argues as follows, if I understood him

correctly:

First, the unrestricted right of states to wage war was abolished in

part by the League of Nations Covenant, later as a general principle by

the Kellogg-Briand Pact, which continues to be the nucleus of world

peace order to this very day. War, thus prohibited, is a punishable

violation of law within and toward the community of nations, and any

individual who has acted in a responsible capacity is punishable.

Secondly, the indictment of individuals for breach of the peace,

although novel, not only represents a moral necessity, but is in fact

long overdue in the evolution of law; it is quite simply the logical

result of the new legal position. Only in outward appearance does the

Charter create new law.

And if I understood the British chief prosecutor correctly, he is

asserting that since the conclusion of the Pact of Paris there exists a

clear legal order based on the entire world’s uniform conviction as to

what is right. Since 1927 the United States have negotiated first with

France, then with the remaining Great Powers, with the exception of the

Soviet Union, and also with some of the smaller powers concerning the

conclusion of a treaty intended to abolish war. Secretary of State

Kellogg stated (in a note to the French Ambassador, 27 February 1928)

with memorable impressiveness what the Government in Washington were

striving for, namely:

The powers should renounce war as an instrument of national politics,

waiving all legal definitions and acting from a practical point of view,

plainly, simply, and unambiguously, without qualifications or

reservations.[1] Otherwise the object desired would not be attained: To

abolish war as an institution, that is, as an institution of

international law.[2]

After the negotiations had been concluded, Aristide Briand, the other of

the two statesmen from whose initiative springs that pact which in

Germany is often called the “Pact to Outlaw War,” declared, when it was

signed in Paris:

“Formerly deemed a divine right and remaining in international

law as a prerogative of sovereignty, such a war has now at last

been legally stripped of that which constituted its greatest

danger: its legitimacy. Branded henceforth as illegal, it is

truly outlawed by agreement....”[3]

According to the conception of both leading statesmen, the Paris Pact

amounted to a change of the world order at its very roots, if only all,

or almost all, nations of the world—and particularly all the great

powers—signed the pact or adhered to it later on, which did actually

happen.

The change was to be based on the following conception: Up to the time

of the Kellogg-Briand Pact, war had been an institution of international

law. After the Kellogg-Briand Pact, war was high treason against the

order created by international law.

Many politicians and scholars all over the world shared this conception.

It is the definite basic conception of that unique commentary on the

League of Nations Covenant by which Jean Ray, far beyond the borders of

France, stirred the hearts of all practical and theoretical proponents

of the idea of preventing war.[4] It is also the basic conception of the

Indictment at Nuremberg.

Diplomacy and the doctrine of international law found their way back

into their old tracks after the first World War, after a momentary shock

from which they recovered with remarkable rapidity. This fact horrified

all those who were anxious to see the conclusions—all the

conclusions—drawn from the catastrophe.

Mankind had a “grand vision of world peace” then, as Senator Bruce

called it when the Pact of Paris was before the Senate for

ratification.[5] I know how much the personality and the achievements of

Woodrow Wilson are a subject of dispute. But the more detachment we

achieve, the clearer it becomes that he—by making fortunate use of his

own preparatory work and of that of others[6]—finally conceived and

presented to the humanity of the time an entirely brilliant train of

thought which is as right today as it was then, and which can best be

condensed as follows:

It is necessary to start afresh. The tragic chain of wars and mere

armistices termed peace must be broken. Sometime humanity must have the

insight and the will to pass from war to real peace, that is, to peace

which is good in its essence, founded on existing legal principles,

without regard to victory or defeat; and this peace, which is good in

its essence, must be maintained—and maintained in good condition—by an

organized union of states.

These aims can only be achieved if the most frequent causes of war are

eliminated, namely excessive armaments, secret treaties, and the

consecration—detrimental to life—of the _status quo_ as a result of

lack of insight on the part of the possessor of the moment.

Humanity did not follow this path. And it is not to be wondered at that

among those who fought against the instruments of Versailles, St.

Germain, Trianon, Neuilly, and Sèvres, be it in the camp of the

vanquished or in that of the victors, were the very ones who strove

after real, lasting peace. When the Governments of the South African

Union and Canada, in their replies to Secretary of State Hull’s

Principles of Enduring Peace of 16 July 1937, indicated in unusually

strong language that a revision of unjust and forcibly imposed treaties

was an indispensable precondition for real world peace, they took up one

of the basic views of the great American President.[7]

Humanity did not follow Wilson.

Even for the members of the League of Nations war remained a means for

settling disputes, prohibited in individual cases, but normal on the

whole. Jean Ray[8], as late as 1930, said:

“The League of Nations did not prove to be a guide to the true

order of peace, indeed it did not even prove to be a sufficient

brake to prevent a complete backward movement into the former

state. For the world did in fact slide back entirely.”

For this is the all-important factor in our problem of law. Before the

commencement of the second World War the whole system of collective

security, even in such scanty beginnings as it had made, had

collapsed;[9] and this collapse was acknowledged and declared expressly,

or by equivalent action, by three world powers—and, in fact, declared

with full justification. Great Britain clearly stated this at the

beginning of the war to the League of Nations. I shall show this

immediately.

The Soviet Union treated the German-Polish conflict simply according to

the rules of classical international law concerning debellatio. I shall

explain this shortly.

The United States declared their strict neutrality. I shall also explain

the import of this declaration.

The system of collective security has been the subject of much dispute.

In this matter involving the world’s conscience, which is of fundamental

importance in this very Trial, it cannot be a matter of indifference

that the system, rightly or wrongly, appeared in 1938 to such a

prominent specialist on international law as the American, Edwin

Borchard, to be absolutely inimical to peace and the offspring of the

hysteria of our age.[10] The collapse may have had various causes; it is

certain that the above-mentioned three world powers testified at the

beginning of September 1939 to the collapse—the complete collapse—and

that they did not, in fact, do so as a consequence of the German-Polish

war.

To begin with, on 7 September 1939 the British Foreign Office told the

Secretary General of the League of Nations[11] that the British

Government had assumed the obligation, on 5 February 1930, to answer

before the Permanent International Court of Justice at The Hague

whenever a complaint was filed against Great Britain, which would

include all cases of complaints which other states might lodge on

account of conduct whereby Great Britain in a war had, in the opinion of

the plaintiff, violated international law. The British Government had

accepted this regulation because they had relied on the functioning of

the machinery of collective security created by the League of Nations

Covenant and the Pact of Paris—because, if it did function properly,

and since Britain would certainly not conduct any forbidden wars, her

opponent on the contrary being the aggressor, no collision between

Britain and those states that were faithful to the security machinery

could possibly be caused by any action of Britain as a seapower.[12]

However, the British Government had been disappointed in this

confidence: Ever since the League Assembly of 1938 it had no longer been

possible to doubt that the security machinery would not function; on the

contrary it had, in fact, collapsed completely. A number of members of

the League had already declared their strict neutrality before the

outbreak of war:

“The entire machinery intended to maintain peace has broken

down.”[13]

I will proceed to show how right the British Government were in the

conclusions they drew. It should not be forgotten that the British

Premier, Mr. Neville Chamberlain, had already proclaimed, on 22 February

1938 in the House of Commons, that is, before the so-called Austrian

Anschluss, the complete inefficiency of the system of collective

security. He said:[14]

“At the last election it was still possible to hope that the

League might afford collective security. I believed it myself. I

do not believe it now. I would say more: If I am right, as I am

confident I am, in saying that the League as constituted today

is unable to provide collective security for anybody, then I say

we must not delude ourselves, and, still more, we must not try

to delude small weak nations into thinking that they will be

protected by the League against aggression and acting

accordingly, when we know that nothing of the kind can be

expected.”

The Geneva League of Nations was “neutralized,” as Noel Baker politely

expressed it later in the House of Commons.[15]

Secondly, in view of the correct conclusions drawn by the British

Government and expressed in their note of 7 September 1939 to the League

of Nations, it is no wonder that the Soviet Union treated the

German-Polish conflict in accordance with the old rules of power

politics. In the German-Russian Frontier and Friendship Pact of 28

September 1939 and in the declaration made on the same day in common

with the Reich Government,[15a] the Moscow Government bases its stand on

the conception of the _debellatio_ of Poland, that is, the liquidation

of Poland’s government and armed forces; no mention is made of the Pact

of Paris or the League of Nations Covenant. The Soviet Union takes note

of the liquidation of the Polish state machinery by means of war, and

from this fact draws the conclusions which it deems right, agreeing with

the Reich Government that the new order of things is exclusively a

matter for the two powers.

It was therefore only logical that in the Finnish conflict, during the

winter of 1939-1940, the Soviet Union should have taken its stand on

classical international law. It disregarded the reactions of the League

of Nations when, without even considering the application of the

machinery of sanctions and merely pretending to apply an article of the

Covenant referring to quite different matters, that body resolved that

the Soviet Union had, as an aggressor, placed itself outside the

League.[16] The report of the Swiss Federal Council of 30 January 1940

to the Federal Assembly endeavored to save the face of the League which

was excluded from all political realities.

Thirdly, the President of the United States stated on 5 September 1939

that there existed a state of war between several states with whom the

United States lived in peace and friendship, namely, Germany on the one

hand, and Great Britain, France, Poland, India, and two of the British

dominions on the other. Everyone in the United States was required to

conform with neutrality regulations in the strictest manner.

Since the time of the preliminary negotiations, it was a well-known fact

in the United States that Europe, and particularly Great Britain and

France, saw the main value of the Pact to Outlaw War in the fact that

the United States would take action in case of a breach of the pact. The

British Foreign Secretary stated this on 30 July 1928, that is, 4 weeks

previous to the signing of the pact. During the deliberations of the

American Senate on the ratification of the pact, Senator Moses drew

particular attention to this.[17] Senator Borah affirmed at the time

that it was utterly impossible to imagine that the United States would

calmly stand by.[18] After the discredit resulting from the failure of

the policy of collective security in the case of Manchuria and Abyssinia

the world had come to understand the now famous “quarantine” speech of

President Franklin D. Roosevelt on 5 October 1937 and his “Stop Hitler!”

warnings before and after Munich to mean that the United States would

act on the next occasion. The declaration of neutrality of 5 September

1939 could therefore only mean: Like Great Britain and the Soviet Union,

the United States accepts as a fact the collapse of the system of

collective security.

This declaration of neutrality has often been looked upon as the death

blow to the system. The Washington Government would be entitled to

reject such a reproach as unjustified. For the system had already been

dead for years, provided one is prepared to believe that it was ever

actually alive. But many did not realize the fact that it was no longer

alive until it was brought into relief by the American declaration of

neutrality.

By 1 September 1939 the various experiments, which had been tried since

the first World War with a view to replace the “anarchic world order” of

classical international law by a better, a genuine, order of peace, were

over, that is, to create in the community of states a general statute

according to which there would be wars which are forbidden by law and

others which are countenanced. These experiments, in the opinion of the

major powers of the time, had failed. The greatest military powers of

the earth clashed in a struggle in which they pitted their full strength

against one another. For the proponents of a materialistic conception of

history this meant the second phase in a process developing according to

inexorable laws, whereby history swept away all diplomatic and juridical

artifices with supreme indifference.

The majority of international lawyers throughout the world maintained

that in universal international law as at present applied, there exists

no distinction as to forbidden and nonforbidden wars.

Hans Kelsen set this forth in 1942 in his paper _Law and Peace in

International Relations_, which he wrote after painstaking research into

literature. He himself belongs to the minority who are prepared to

concede a legal distinction between just and unjust wars, so that his

statement carries all the more weight.

Now we must ask: Are we in point of fact right in speaking of the

collapse of the system of collective security? This would presuppose

that such a system at one time existed. Can that really be maintained?

This is a question of the greatest importance for this Trial, in which

the existence of a world-wide consciousness of right and wrong is taken

as the basis for the indictment for breach of the peace.

Let us recall the tragedy of the Kellogg-Briand Pact, that tragedy from

which all those have suffered so much who rejoiced when the pact was

concluded and who later, after a first period of depression, hailed the

Stimson Doctrine as a long overdue step essential for the achievement of

real peace and as an encouraging omen of fresh progress.

The United States had a great goal in view in 1927 and 1928, as I

already mentioned. In the League of Nations the problem had been tackled

only half-heartedly and with half measures, and this had perhaps done

more harm than good to the cause of real peace. The Geneva Protocol had

failed. Kellogg now wanted to overcome all the difficulties inherent in

the problem and bring the world round by vitality and determination. The

pact as published, with its two articles containing the renunciation of

war and the obligation of peaceful settlement, seemed to still the

yearning of humanity eager for some deed.

But the difficulties it was desired to surmount are in part rooted in

the problem, and no rules laid down by any legislator will ever fully

eliminate them. For even if unambiguous criteria existed, who among

fallible mankind would have the authority to give a decision in case of

dispute? We do not even possess unambiguous criteria for aggression and

defense.[19] This holds good both for the so-called political concept,

which is in a way natural, and for the legal concept or concepts of

aggression and defense.

Yet these were not the only difficulties pointed out, explicitly and

implicitly, by the French Government in the preliminary negotiations for

the pact; they did so with the full title[20] of one who knows Europe

and its ancient historical heritage just as the United States Government

knows America and its vastly different history.

When the world came to know the notes exchanged during the preliminary

negotiations with all their definitions, interpretations,

qualifications, and reservations, it became manifest to what extent the

opinions of the governments differed behind that wording. One saw the

Soviet Government’s frank—even scathing—criticism of the refusal of

the Western Powers to disarm and thus create the essential precondition

for an effective policy of peace and generally of the vagueness of the

treaty;[21] but especially of the famous British reservation of a free

hand in certain regions of the world, that reservation which has often

been called the British Monroe Doctrine or the Chamberlain Doctrine;[22]

and one knew that in reality there existed only formal agreement behind

the signatures and that no two powers were implying exactly the same

thing by the treaty. Only on one thing did complete agreement exist: War

in self-defense is permitted as an inalienable right to all states;

without that right, sovereignty does not exist; and every state is sole

judge of whether in a given case it is waging a war of self-defense.

No state in the world at that time was prepared to accept foreign

jurisdiction concerning the question of whether its decisions on basic

questions of its very existence were justified or not.

Kellogg had declared to all the nine states participating in the

negotiations, in his note of 25 June 1928:[23]

“...The right of self-defense...is inherent in every sovereign

state and is implicit in every treaty. Every nation...is alone

competent to decide whether circumstances require recourse to

war in self-defense.”

The friends of peace were cruelly disappointed. What was the use of such

a treaty anyway? They were only too right. Very soon afterward they

heard with even greater grief of the course of the discussions in the

American Senate. The ratification was, it is true, passed with 85 votes

against 1, with a few abstentions; but if, behind the signatures of the

contracting states there was no material agreement, there was even less

behind the result of the vote in the Senate of that world power which

was, as far as the conception and initiative was concerned, the leading

one.

The discussions in the Senate, which will remain memorable for all time

because of their earnest and profound character, showed—and several

senators expressly said so—that the opinions of the senators were

oscillating between two poles which were worlds apart. For some the

treaty really meant a turning-point in world history; to others it

appeared worthless, or at best a feeble or friendly gesture, a popular

slogan, a sort of international embrace; to yet others as fertile soil

for all the wars of the future, a gigantic piece of hypocrisy, as the

legalization of war or even of British world control, or as a guarantee

of the unjust _status quo_ of Versailles for France and Great Britain.

Some senators criticized the utter vagueness of the stipulations of the

treaty even more bitterly than the Russian note. And if Kellogg’s

declaration about the right of self-defense, which, according to the

will of the signatory states, was an integral part of the treaty, was

taken literally: What kind of war was then forbidden?[24] Sarcastic and

ironical words were used in the Senate.

Nothing was gained by this Paris Pact if everything were to remain as at

its conclusion. In the opinion of the great American expert on

international law, Philip Marshall Brown, the pact unwittingly

engendered by its ineptness the horrible specter of “undeclared

war.”[25]

Those, Germans or non-Germans, who fought against Versailles because

progress was blocked, and those, Germans or non-Germans, who criticized

the League of Nations because it did more harm than good to the will

toward progress, had all rejoiced for nothing at the end of August 1928.

The decisive step had not been taken.

But above all the one thing which, though not sufficient in itself, is

indispensable if a guarantee of peace is really to be created, the one

thing that is necessary in the unanimous opinion of all who reckon with

human frailty, was never tackled: To create a procedure by which the

community of states, even against the will of the possessor, can change

conditions that have become intolerable, in order to provide life with

the safety valve it must have if it is to be spared an explosion.

The individual state, if at all, can avoid revolutions only by good

legislation and an early adjustment of order to changing conditions; and

the same is true of the community of states. Wilson also had this

fundamental principle in mind, as we saw. One of the great British

experts on international law, one of the enthusiastic, unconditional,

and progressive adherents of the Paris Pact, McNair, took this into

account too when, in 1936, he wanted to see placed beside collective

force the collective and peaceful revision of conditions which had

become dangerous.[26] And it was also taken into account by the American

experts on international law, Borchard[27] and Fenwick,[28] in their

warning illustration of the situation as regards international law

shortly before the second World War. The Reich Government, by the way,

had pointed out this problem, which overshadowed all others, in

Stresemann’s note to the American Ambassador, dated 27 April 1928, when

unconditionally agreeing to Kellogg’s proposal.[29]

Later, the problem of “collective revision” was never seriously tackled.

This is not surprising, if only because the very character of such a

procedure would presuppose renunciation of their sovereignty by the

states. And can such a renunciation be considered in the times we live

in? In Philip Brown’s melancholic opinion—“less than ever.”[30] For

that reason a real forward step in the question as to how war could

legally be outlawed was impracticable.

In spite of these intricate complications the Government of the United

States and the League of Nations did a great deal to comply with the

urgent demands of the nations. They subsequently tried to give the pact

a precise content, and “teeth.” The doctrine of international law

provided suggestions for this and checked it. Although it remained

completely unsuccessful, we shall have to trace this process briefly,

because the seed for the ideas contained in the Indictment are to be

found here, insofar as its line of argument is not a political or

ethical but a legal one.

In its ban on aggression, the Paris Pact unquestionably starts from the

political concept of aggression. But that is quite indefinite. Shotwell

and Brierly, among others, tried to assist immediately by deducing a

legal concept of aggression from the second article of the treaty, which

establishes the obligation to follow a procedure of peaceful

settlement.[31] We can leave open the question whether it is permissible

to apply this interpretation to the treaty. In practice nothing is

gained by doing so; one kind of difficulty is simply put in the place of

another. There are no fewer obscurities. Measures for peaceful

settlement presuppose good will on both sides; what if that is lacking

on one side or the other? And what still constitutes a measure of

peaceful settlement, and what no longer does? The Russian Government

were quite right in their note of 31 August 1928 on the Kellogg-Briand

Pact when they brought up this question.

Other attempts to help tried to develop a completely new world

constitution out of the entirely vague pact by way of logic. They are

connected with the name of the American Secretary of State, Stimson, and

with the work of the Budapest meeting of the International Law

Association in 1934.[32] In order to understand this, it will be found

necessary to assume that the Kellogg Pact really did bring about, in a

legally conceivable manner, the unambiguous and unconditional

renunciation of war. Then, of course, there exists no longer any right

to wage wars as and when one likes. War waged in defiance of this

prohibition is an offense against the constitution of the community of

states. We are immediately faced by the question: Can the legal position

of a state which attacks contrary to law be the same as that of a state

which is being attacked contrary to law?

If one answers “no,” as does for instance the influential French

commentator of the League of Nations Covenant, Jean Ray,[33] does not

this mean the elimination of the most important fundamental principles

of classic international law?

(1) Do the international laws of war—which, after all, spring from the

right to wage war freely and from the duel-like character of war and

certainly from the equality of the belligerents before the law—apply

for the qualification of the acts of the belligerent powers against one

another?

(2) Is it possible, or indeed permissible, that neutrality should still

exist in such a war?

(3) Can the result of the war, assuming that the aggressor is

victorious, be valid under law, especially when compressed into the form

of a treaty, or must not the community of states deprive the aggressor

of the spoils of his victory by a policy of nonrecognition? Should there

not be, or must there not be, joint coercive action by the states

against the aggressor?

It must be noted that not even theoretical law has drawn all possible

conclusions. The practice of the states, after a few tentative

beginnings in isolated points, never came to a definite conclusion in a

single case.

With regard to the first point, the validity of the international laws

of war during a war, whatever its origin, has never so far been

seriously disputed by any state. Any doubts that arose were cleared up

in a way which allowed of no misunderstandings. I draw attention to

Resolution Number 3 of the League of Nations Assembly of 4 October 1921

and to the report of the Committee of Eleven of the League of Nations

for the adaptation of the Covenant to the Pact of Paris.[34]

The aggressor state has the same rights and duties in a war as the

attacked nation, that is, those laid down by the traditional

international laws of war. The French chief prosecutor appears to wish

to deviate from this line, although he does not seem disposed to draw

the full conclusions. However, I do not see any tendency to deviate from

the present path even in the most recent practice of states.

With regard to the second point:

Attempts have been made to deny the obligation to remain neutral and, in

fact, finally to establish for the states not involved the right of non

neutrality and even the right to wage war against the aggressor. Some

statesmen and scholars have devoted themselves just as passionately to

undermining, and even to outlawing, the right to neutrality as other

statesmen and scholars have spoken in favor of its undiminished

continuance.[35] The clearer it became that the whole system of

collective security failed to function in those particular cases which

were of decisive importance, namely, where steps would have had to be

taken against a great power, the more the idea of neutrality asserted

itself with fresh vigor. The complete discredit attaching to the League

of Nations and the system of the Kellogg-Briand Pact since the

Abyssinian conflict put classical international law back into its old

position. In 1935 Switzerland declared her unrestricted neutrality;[36]

Belgium, Denmark, Finland, Luxembourg, Norway, Holland, and Sweden

followed with their declaration at Copenhagen on 24 July 1938.[37] The

failure of the League of Nations was the reason quite openly given.

With reference to the third point:

The idea underlying the policy of nonrecognition is that the states not

involved in a conflict should conduct themselves as members of the

community of states, that is, they should protect the constitution of

the community of states by refusing to recognize the fruits of victory,

should the victor have been the aggressor. The situation he has created

by force should not even seem to become a legal situation. He will thus

be deprived of what he has gained, and one of the main inducements to

wage war will thereby be eliminated. Such a policy of nonrecognition is

undoubtedly not enough to guarantee by itself a system of collective

security, but it is an indispensable part of such an order. There can be

no dispute about this. The Brazilian representative, Senhor Braga,

gained merit by proposing, at the second League Assembly in 1921, that

such a policy be followed by the members of the League of Nations under

the name of a “universal legal blockade” (_blocus juridique

universel_).[38]

The Finnish representative, M. Procope, interpreted Article 10 of the

Covenant in this sense in 1930 before the League Assembly.[39] The notes

by the American Secretary of State, Stimson, of 7 January 1932 to China

and Japan[40] made this idea echo throughout the world. Their contents

are commonly referred to as the Stimson Doctrine. The League of Nations

accepted the Doctrine as a resolution of the Assembly on 11 March

1932.[41] The concept was later the focal point of the Pact of Rio de

Janeiro of 10 October 1933 and of the Budapest Articles of 10 September

1934.

The conflict between Italy and Abyssinia in 1935-36 became the great

test case,[42] which decided the fate of the system of collective

security. The League of Nations declared a member, which was a great

power, to be the aggressor and decreed economic sanctions but then

shrank from coercive military measures and finally, after Italy’s

victory, struggled painfully in debates on procedure, especially at the

18th Assembly of the League, to find an answer to the question as to how

the League, without openly betraying its constitution, could cross the

attacked member, the minor power of Abyssinia, off the list of existing

states and recognize it as part of the Italian Empire. The United

States, too, did not enforce the Stimson Doctrine but remained strictly

neutral.[43],[44]

It is necessary to realize all this; and also to know that the British

Government, on 20 February 1935, politely but firmly refused, through

Lord Chancellor Viscount Sankey,[45] to accept the logical explications

and paid tribute to the old truth: “It is not logic but history that

creates law.”[46] On a later occasion, when Secretary of State Cordell

Hull had explained the principle of American policy to all the powers on

16 July 1937,[47] the Portuguese Government issued a warning against

“the abstract and generalizing tendency of jurists”; it warned against

attempts to “find a single formula” and against not studying historic

facts sufficiently.[48]

We therefore come to the conclusion that in the actual relations between

states there existed—quite a number of years prior to 1939—no

effective general ruling of international law regarding prohibited war.

No such general ruling existed so far as the leading statesmen and the

peoples were aware.

This is, in fact, the ultimate reason why the system of specific rulings

on international law was followed to an ever-increasing extent. Two

states would thus conclude treaties, in full knowledge of their

particular historical conditions and with a view to guarantee peace

between each other.

Now, during the second World War the United States Government decided to

help Great Britain. Great Britain was able to acquire destroyers, and it

later received the assistance of Lend-Lease. The American public

recognized this act of assistance as being essentially no longer

neutral; it was regretted by some, welcomed by others, sometimes

attacked and sometimes defended. The supporters of the measures before

the American public, above all Stimson and Cordell Hull, quite rightly

refrained from justifying them as consistent with neutrality. On the

contrary, they took their stand on the Pact of Paris as interpreted by

the Budapest Articles.[49] As we saw, this would, according to Viscount

Sankey’s indisputably correct conception of the sources of international

law, have been wrong as far back as 1935.

After the developments which had taken place since Italy’s victory over

Abyssinia, such discussions were entirely outside the field of legal

realities. Their purpose was to resolve internal dissensions in America

and for that very reason could not have been of direct importance for

international law. Even had these discussions taken place between

states, they could at most have helped to create law. But is it actually

necessary to assert or prove that such discussions could not have

created, in the midst of the great struggle, a law to attain which so

many efforts—efforts which were proved to have been Utopian—were made

in vain in peacetime?

In this Court many ways of legal thinking meet—ways which are in part

very different. This leads to a number of ineradicable differences of

opinion. But no manner of legal thinking anywhere on earth, from the

most ancient times to the most recent, could or can make possible

arguments which contradict the very nature of law as a social order of

human life arising out of history. If several governments accept

articles about whose contents they are of different opinions and if

these articles then find no real application in the practice of these

governments—which is not to be wondered at considering the

circumstances under which they arose—and if logicians then interpret

these articles, while the practice of governments rejects these

interpretations either expressly or tacitly, then one will simply have

to resign oneself to this, inasmuch as one proposes to keep to the task

of legal appreciation, however much the goal may seem worth striving

for, politically or morally.

But let us forget for a moment the bitter realities of those years

following upon the Italo-Abyssinian conflict. Let us suppose for a

moment that a general and unambiguous pact had existed, accepted and

applied by the contracting parties in fundamental and factual agreement.

Would the liability of individuals to punishment for the breach of such

a treaty be founded in international law?

No—not even the liability of the state to punishment, let alone that of

individuals.

The breach of such a treaty would not be any different, under existing

international law, from any other violation of international law. The

state violating a treaty would be committing an offense against

international law, but not a punishable act.[50] Attempts were

occasionally made to deduce from words _délit_ (offense), _crime

international_ (international crime), and _condamnation de la guerre_

(condemnation of war) the existence of an international criminal law

dealing with our case. Such conclusions are based on wrong premises.[51]

Every lawyer knows that any unlawful behavior can be called a _délit_

(_delictum_), not only punishable behavior. And the word _crime_ is used

even entirely outside the legal sphere. And this is precisely the case

here. When in 1927, on Poland’s application, the League of Nations

Assembly declared war to be a _crime international_, the Polish

representative expressly stated that the declaration was not actually a

legal instrument but an act of moral and educational importance.[52] The

endeavor to organize a universal world system of collective security on

a legal basis failed. But this does not mean that the numerous bilateral

treaties whose purpose it is to preclude wars of aggression between the

two partners became inapplicable. One will have to examine whether the

parties to the treaty may have made the existence or continued existence

of a general machinery of collective security the prerequisite for the

validity of the treaty.

For unilateral assurances of nonaggression the same holds good as for

bilateral treaties.

Many bilateral nonaggression pacts were concluded and several unilateral

assurances were given. In some cases a political, in others a legal

concept of aggression, or even a number of such legal concepts may

determine right and wrong.

The Reich also concluded a series of such pacts. They have been cited by

the Prosecution in argument. One must examine whether all these treaties

were still in force at the critical moment, and this examination will be

left to the individual defendant’s counsel. But if the Reich did attack,

in some specific case, in breach of a nonaggression pact which was still

valid, it committed an offense in international law and is responsible

therefor according to the rules of international law regarding such

offenses.

But only the Reich—not the individual, even if he were the head of the

State. This is beyond all doubt, according to existing international

law. It is unnecessary even to speak about this. For up to the most

recent times not even the possibility was mentioned, either in the

Manchurian, or in the Italo-Abyssinian, or in the Russo-Finnish

conflict, of instituting criminal proceedings against those people who

were responsible, on the Japanese, Italian, or Russian side, for

planning, preparing, launching, and conducting the war, or who simply

participated in these acts in any way. And it was certainly not because

matters had, paradoxically enough, not been thought out to the end, that

they were not prosecuted. They were not prosecuted because this cannot

take place as long as the sovereignty of states is the organizational

basic principle of interstate order.

THE PRESIDENT: I think this would be a convenient time to break off.

[_A recess was taken._]

DR. JAHRREISS: One thing or another[53]—should things reach the point

where, according to general world law, the men who participated in the

planning, preparation, launching, and conduct of a war forbidden by

international law could be brought before an international criminal

court, the decisions regarding the state’s final problems of existence

would be subject to super-state control. One might, of course, still

term such states sovereign; but they would no longer be sovereign. In

his paper, written late in 1943, which I have already mentioned several

times and which was prepared after the Moscow conference of 1 November

1943, Kelsen again and again repeats that in questions of breach of the

peace, the liability of individuals to punishment does not exist

according to the general international law at present valid and that it

cannot exist because of the concept of sovereignty.[54]

For Europeans, at any rate, the state has during the last four

centuries, especially following the pronounced advance made by the idea

of the national state, achieved the dignity of a super-person.

Of course, acts of state are acts of men. Yet they are in fact acts of

state, that is, acts of the state carried out by its organs and not the

private acts of Mr. Smith or Mr. Müller.

What the Prosecution is doing when, in the name of the world community

as a legal entity, it desires to have individuals legally sentenced for

their decisions regarding war and peace, is, when facing the issue from

the angle of European history, to look upon the state as one would look

upon a private individual; indeed, more than that: What it is doing is

destroying the spirit of the state. Such an indictment, the moral

justification of which is not my concern—such an indictment is, as we

have already shown, incompatible with the very nature of sovereignty and

with the feeling of the majority of Europeans. It seems, indeed, as

though not only Europeans feel that way. In 1919, in Paris, it was the

American delegates at the War Guilt Investigation Committee who opposed

most strongly any legal sentence on the Kaiser for the very reason of

the incompatibility of such a procedure with the sovereignty of the

State.[55] And it is impossible to underline the idea of sovereignty

more strongly than Kellogg did 8 years later during the negotiations in

connection with the Pact of Paris, when he declared, as I have already

said, “Every state is the sole judge of its behavior with regard to

questions affecting its very existence.”

There are epochs which idolize the sovereignty of the state; others

deprecate it. Certain epochs have done both at the same time—ours does

so. Perhaps we are living in a period of transition. Perhaps a

transformation of values is taking place. Perhaps world community will

become the supreme political value for the peoples in place of their own

particular states, which, at any rate, held this position hitherto.

Perhaps we shall reach a point where the unleashing of a war deserving

moral and also legal condemnation will, for the general legal

conscience, constitute high treason against the world community. Perhaps

we shall reach a point where it will be permissible, or even compulsory,

to betray a government starting such a war to foreign countries without

this being termed high treason toward one’s own. At the moment there is

in no nation a majority, let alone unanimity, in support of this

conclusion.

The punishment of individuals by the legal community of nations for

breach of the peace between states can thus be ordered only provided the

fundamental principles of international law as at present valid and the

scale of values as for centuries they have been firmly rooted in the

feeling of the European nations are abandoned—that scale of values

according to which the state, one’s own sovereign state, forms the

indispensable foundation for free personality.

The Prosecution breaks up in its own mind the German State at a time

when it stood upright in its full strength and acted through its organs.

It must do so if it desires to prosecute individual persons for a breach

of the peace between states. It must turn the defendants into private

individuals. Then again the defendants—as it were, on the private

level—are strung together into a conspiracy by legal concepts rooted in

Anglo-Saxon law and alien to us. They are placed on a pedestal provided

by the many millions of members of organizations and groups which are

designated as criminal, thereby once more allowing them to appear as an

“ultra-individual” value.

Insofar as the Charter supports all this by its regulations, it is

laying down fundamentally new law, if—concurring with the British chief

prosecutor—one measures against existing international law. That which,

originating in Europe, has finally spread to the whole world and is

called international law is, in essence, a law of the co-ordination of

sovereign states. Measuring the regulations of the Charter against this

law, we shall have to say: The regulations of the Charter deny the basis

of this law; they anticipate the law of a world state. They are

revolutionary. Perhaps, in the hopes and yearnings of the nations, the

future is theirs.

A lawyer, and only as such may I speak here, will merely have to

establish that they are new—revolutionarily new. The laws regarding war

and peace between states provided no room for them and could not do so.

Thus they are criminal laws with retroactive force.

Now the French chief prosecutor—if I understand correctly—recognized

the sovereignty of states in his profoundly moving speech and quite

rightly saw that an unbridgeable gulf exists between the Charter and

existing international law where it desires to see individuals punished

as criminals for breach of international peace. He therefore transposes

the Trial from the plane of international law to that of constitutional

law. It might have happened that a German State would have settled

accounts after the war with those people who were responsible for

launching the war. Since the whole life of the German people is

paralyzed today, those foreign powers, who jointly on the basis of

treaties have territorial power in Germany, are undertaking this

settlement of accounts. The Charter has laid down the rules which are to

guide the Court in its investigation and verdict.

We can leave the question open as to whether this concept is legally

right or not. Even if it is right, our question is not modified thereby.

When looking at the problem from this point of view, no differently from

that of international law, we must know how far the Charter creates

penal law with retroactive force. But we must now measure the

regulations of the Charter not only against the international law which

was valid for Germany and was recast into national law, as we say, but

also against that national criminal law which was binding on the

defendants at the time of the deed. It is, after all, quite possible for

a state, a member of the community of states, to be more cosmopolitan in

its criminal law than actual international law. Some rule of the

Charter, although new with regard to existing international law, may

correspond to an already existing national law, so that it would not

constitute criminal law with retroactive force. So how was the breach of

peace between states—particularly the breach of nonaggression

pacts—treated in that national criminal law to which the defendants

were subject at the time of the preparation and launching of the war?

It is possible that in some state those people might be threatened with

punishment who prepared or launched or waged a war in opposition to the

international obligations of that state.[56] That would, it is true, be

completely impractical, for the result of a war determines the internal

settlement of accounts. No criminal court will threaten a victorious

government, whereas, in case of defeat, the defeat itself provides the

measure for such settlement. In any case the regulations of the Charter

regarding punishment for breach of the peace between states are novel

for the national criminal law to which the defendants were subject at

the time of the deed. If one is not prepared to understand the phrase

_nulla poena sine lege praevia_ as it is understood on the European

continent, that is, as meaning that law in the sense of _lex_ is a rule

laid down by the state, a state law, but holds the opinion which—as far

as I can see—is peculiar to English legal thinkers, that law in the

sense of lex can also be a deeply rooted rule of ethics or morality,

then we still have one question left: As things happened to be, did the

defendants—formerly ministers, military leaders, directors of economy,

heads of higher authorities—at the time of the deed feel, or could they

even have felt that a behavior which is now made punishable by a

retroactive law was originally in violation of their duty? The answer to

this question cannot be given without insight into the nature of the

constitution of the German Reich at the moment of the deed.

The German Reich was incorporated into the community of states in the

form and with the constitution which it happened to have at any given

moment. Such is the case with every member of the community of states.

The United States and the British Empire, the Union of Soviet Socialist

Republics and the French Republic, Brazil and Switzerland, stand in the

framework of the family of nations with such a constitution as they

happen to have at the time.

The Prosecution, with full justification, has tried to convey a picture

of this concrete legal structure of the Reich. Without trying to obtain

such a picture, no one in this Trial will be able to arrive at a

decision regarding right and wrong. In addition it seems to me that many

ethical questions which have been raised here require such an endeavor

to be made. However, I am afraid that with the picture presented by the

Prosecution one will not come as close to the truth as is possible,

notwithstanding the complex nature of the subject.

The Prosecution is based upon the conception of a conspiracy to conquer

the world on the part of a few dozen criminals. The German State, if one

looks upon things in this way, becomes a mere shadow or tool. But this

State had long been in existence; no one could set aside the enormous

weight of its history. A number of facts in its history, domestic and

especially foreign, accounted for Hitler’s rise to power or facilitated

it for him, while there were other things in this history that guided,

urged, limited, or restrained Hitler in his choice of aims and means,

and helped to decide the success or failure of his measures and

undertakings.

The Prosecution was certainly right in laying great stress on the

so-called Führer Principle. This Führer Principle has, in fact, for the

eyes and even more for the ears of the German people and of the world in

general, been the organizational guiding principle in the development of

the Reich constitution after 1933.

It has never been unambiguous, and it considerably changed in character

during the course of the years. In human life leading and dominating

present inherent contradictions. There exists one, as it were, soulless,

mechanical way of directing mankind, which is to dominate, to rule by

issuing commands; and there is another one, which is to precede by

setting an example and being followed voluntarily, which is to lead or

whatever one wishes to call it. This differentiation between two

fundamentally different methods of directing men is often already

complicated by the words used; in the German language, for instance this

is so because “leading” is sometimes substituted for unconscious

domination, while domination is occasionally called leading. The

differentiation is rendered even more difficult by the fact that leading

may alternate with domination in relations between the same persons or

by the fact that methods which are actually applicable to leading are

used in dominating and vice versa. Every state has been, is, and will

be, faced by the question of how it is to link up both these methods, so

that they may complement, promote, and keep a check on each other. Both

methods appear continually and everywhere. There has never yet been a

truly dominating ruler who was not also a leader, although minor rulers

are also subject to this law. And the Hitler regime did bring about—at

least to begin with—a synthesis of both methods which had at least the

appearance of being tremendously efficient.

To this synthesis has been attributed—perhaps not unjustly—much of

what the world registered with wonder, sometimes approvingly, but more

often disapprovingly, as the result of an unheard-of mobilization,

concentration, and increase in the energies of a nation.

This remarkable synthesis of leading and dominating found its maximum

expression in the person of Hitler himself, in his acts of leadership,

for instance, in his speeches, and in his commands. Hitler’s acts of

leadership and commanding became the motive power of the German

political life of that time. Above all, this phenomenon must be taken

into correct account. It is of absolutely decisive importance in judging

the enormous mass of facts which has been produced here. With all due

caution, which is natural to men accustomed to think along scientific

lines and imbues them with an almost unconquerable mistrust of any

attempt to comprehend and evaluate events which have happened so

recently, one is perhaps entitled to vouchsafe this assertion: In the

course of the years Hitler accorded the act of command an increasingly

favored place to the detriment of acts of leadership and finally brought

it so much to the fore that commands, not the act of leadership, became

the all-decisive factor. Hitler, the man of the people, became more and

more the dictator. The speeches in which he repeated himself ad nauseam,

even for his most willing followers, and shrieked out, to the irritation

even of the most faithful disciples, became rarer, while the legislative

machine worked faster and faster. A later age will perhaps realize to

what extent the great change in the attitude of the German people toward

Hitler, which was beginning to show even before the war, was the cause

or effect of this modification.

Whereas on a superficial question, that is, the question as to how he

wished to be designated, Hitler urged not to be called “Führer and Reich

Chancellor” any longer, but only “Führer,” the way in which the State

was being governed was taking the exactly opposite path; leadership

disappeared more and more, and there remained naked domination. The

Führer’s orders became the central element of the German state edifice.

In the public hierarchy, this development was attended by an increase

rather than a decrease in Hitler’s power. The great majority of German

civil servants and officers had seen nothing behind the organized

leadership but a machinery of domination invested with a new label and,

if possible, an even more bureaucratic nature functioning side by side

with the inherited state machinery. When Hitler’s orders became the

Alpha and Omega, they felt themselves, so to speak, returned to the old

familiar path. The queer and puzzling apparition had gone.

They were back in their world of subordination. Nevertheless, this

development had given the Führer’s orders a special aura of sanctity for

them too; there was no contradicting the Führer’s orders. One could

perhaps raise objections; but if the Führer abided by his order, the

matter was decided. His orders were something quite different from the

orders of any official within the hierarchy under him.

Here we have the fundamental question in this Trial: What position did

Hitler’s orders occupy in the general order of Germany? Did they belong

to the type of orders which were disallowed by the Charter of this Court

as grounds for the exclusion of punishment?

It was perhaps harder for a lawyer who grew up in the habits of the

state founded on law than for other people to witness the slow and then

ever more rapid disintegration of that foundation of law supporting the

state; he never came to feel at home in the new order and always

remained half outside. Yet for that very reason he probably knows better

than anyone else the peculiarities of this new order, and he may attempt

to make them comprehensible.

State orders, whether they lay down law or decide individual cases, can

always be measured not only against the existing written and unwritten

law of the state concerned but also against the rules of international

law, morality, and religion. Someone, even if only the conscience of the

person giving the orders, will always ask whether the person giving the

order did not perhaps order something which he had no right to order or

whether he may not have formed and published his order by an

inadmissible procedure. Now an unavoidable problem for all domination

lies in this: Should or can it grant the members of its hierarchy, its

civil servants and officers, the right—or even impose on them the

duty—to examine at any time any order which demands obedience from

them, to determine whether it is lawful and to decide accordingly

whether to obey or refuse?

No form of rule which has appeared in history so far has given an

affirmative answer to this question. Only certain members of the

hierarchy were ever granted this right, and they were not granted it

without limits. Such was the case, for instance, under the extremely

democratic constitution of the German Reich during the Weimar Republic,

and it is again the case today under the occupation rule of the four

great powers over Germany.

Insofar as no such right of examination is granted to members of the

hierarchy, orders are binding upon them. All constitutional law,

including that of modern states, provides for acts of state which must

be respected by the authorities, even when defective. Certain acts

constituting rules, certain decisions on individual cases which have

acquired legal force, are held to be valid even when the person giving

the order has exceeded his competency or made a mistake in form.

If only because the process of referring to a still superior order

finally comes to an end, there must under every government exist orders

that are binding on the members of the hierarchy under all

circumstances, and therefore represent law to the officials concerned,

even though outsiders may find that they are defective as regards

content or form when measured against the previous laws of the state

concerned or against rules applying outside the state. For instance, in

direct democracies, an order given as the result of a plebiscite of the

nation is a fully valid rule or an absolutely binding decree. Rousseau

knew how much the _volonté de tous_ can be in contradiction to what is

right, but he did not fail to appreciate that orders by _volonté de

tous_ are binding.

In indirect democracies the resolutions of a congress, a national

assembly, or a parliament may have the same force.

In the partly direct, partly indirect democracy of the Weimar

Constitution of the German Reich the laws resolved by a majority of the

Reichstag large enough to modify the constitution and duly promulgated

under all circumstances were binding upon all functionaries, including

the independent courts of law, even though the legislator—willingly or

unwillingly—might have violated rules not imposed by the state but by

the Church or by the community of states. In the latter case the Reich

would have been guilty of an international offense, since it would have

failed to see to it that its legislation was in accordance with

international law. It would, therefore, have been responsible under the

international regulations regarding reparation for international

offenses. But until the law concerned had been eliminated in accordance

with the rules of German constitutional law, all officials of the

hierarchy would have had to obey it. No functionary would have had the

right, let alone the duty, to examine its legally binding nature with

the aim of obeying or refusing to obey it, depending on the result of

this examination.

Things are no different in any other state in the world. It never has

been and never can be different. Every state has had the experience of

seeing its ultimate orders, its supreme orders, which must be binding on

the hierarchy if the authority of the state is to subsist at all, on

occasion coming into conflict with rules not imposed by the state—to

divine law, to natural law, and to the laws of reason. Good governments

take pains to avoid such conflicts. To the great sorrow—indeed, to the

despair—of many Germans, Hitler frequently brought about such

conflicts. If only for this reason, his way of governing was not a good

one, even though it was for several years successful in some spheres.

One thing however must be said straight away: these conflicts never

affected the entire nation or the entire hierarchy—at least not

immediately—but always merely groups of the nation or individual

offices of the hierarchy. It was only some of the people concerned who

were fundamentally affected, the bulk being only superficially

involved—not to mention those conflicts that remained unknown to the

overwhelming majority of the people and of the hierarchy, those orders,

therefore, by which Hitler not only showed himself to be inhuman in

individual instances but simply put himself outside the pale of what is

human. Here is a purely academic question: Would Hitler’s power have

taken such deep root, would it have maintained itself, if these

inhumanities had become known to wider sections of the people and of the

hierarchy? There can be no answer: they did not.

Now in a state in which the entire power to make final decisions is

concentrated in the hands of a single individual, the orders of this one

man are absolutely binding on the members of the hierarchy. This

individual is their sovereign, their _legibus solutus_, as was first

formulated—as far as I can see—by French political science with as

much logic as eloquence.

After all, the world is not faced by such a phenomenon for the first

time. In former times it may even have appeared to be normal. In the

modern world, a world of constitutions based on the separation of powers

under the supervision of the people, absolute monocracy does not seem to

be proper in principle. And though this may not yet be the case today,

one day the world will know that the vast majority of intelligent

Germans did not think any differently on this matter from the majority

of intelligent people of other nations in and outside Europe.

Such absolutely monocratic constitutions can nevertheless come about as

the result of events which no individual can grasp in their entirety,

much less control at will.

This is what happened in Germany from the beginning of 1933 onward. This

is what happened gradually, stage by stage, to the parliamentary Weimar

Republic, which under Hindenburg was changed into a presidential

republic, in a process which partly furthered the development by acts of

state which stressed legal forms and which can be read in state

documents, but partly simply formed the rules by accepted custom. The

Reich law of 24 March 1933, by which the institution of Reich Government

Laws was created, whereby the separation of powers in the sense in which

it had been customary was, in practice, eliminated, was, according to

the transcript of the Reichstag session, passed with a majority

sufficient for altering the constitution. Doubts about the legality of

the law have nevertheless been raised on the grounds that a section of

the deputies elected had been prevented from attending the session by

the police, while another section of the deputies who were present had

been intimidated, so that only an apparent majority sufficient for

altering the constitution had passed the law. It has even been said that

no Reichstag, not even if everybody had been present and all of them had

voted, could have abolished the fundamental constitutional principle of

the separation of powers, since no constitution could legalize its

suicide. We need not go into this. The institution of government laws

became so firmly rooted as a result of undisputed practice that only a

formal jurisprudence entirely cut off from the realities of life could

have attempted to play off paragraphs against life and to ignore the

constitutional change which had taken place. And for the same reason

one’s arguments are faulty if one chooses to ignore how the institution

of government laws, that is, cabinet law, was later changed by custom

into one of several forms in which the Führer legislated. At the base of

every state order, as of any order whatsoever, there lie habit and

custom. From the time when Hitler became head of the State, practice

quickly resulted in Hitler heading both the hierarchy and the whole

people as the undisputed and indisputable possessor of all competency.

The result of the development was, at any rate, that Hitler became the

supreme legislator as well as the supreme author of individual orders.

He gained this position to some extent under the impression of the

surprising successes—or what were considered successes—in Germany and

abroad, especially during the course of the past war. Perhaps the German

people, although with great differences between North and South, West

and East, particularly easily falls a prey to actual power, particularly

easily obeys by orders, particularly well conforms to the idea of a

superior. Thus the whole process may have been rendered easier.

Finally, the only thing that was not quite clear was Hitler’s

relationship to the judiciary. For, even in Hitler Germany, it was not

possible to exterminate the idea that it was essential to allow justice

to be exercised by independent courts, at least in matters which concern

the bulk of the people in their everyday life. Up to the top group of

Party officials—this was shown by some of the speeches by the Reich

Leader of jurists, the Defendant Dr. Frank, as quoted here—there showed

resistance, which, it is true, was not very effective, when justice in

civil and ordinary criminal cases was equally to be subjected to the

_sic volo sic jubeo_ of one man. But apart from the judiciary, which in

the end also was beginning to succumb, absolute monocracy was complete.

The Reichstag’s pompous declaration about Hitler’s legal position, dated

26 April 1942,[56a] was actually only the statement of what had become a

fact long before. The Führer’s orders constituted law already a

considerable time before this second World War.

In this state order the German Reich was treated as a partner by the

other states, throughout the whole field of politics. In this connection

I do not wish to stress the form—so impressive to the German people and

so fatal to all opposition—which this treatment took in 1936 at the

Olympic Games, a show which Hitler could not order the delegations of

foreign nations to attend, as he ordered Germans to the Nuremberg Party

Rally with its state displays. Rather would I wish to point out that the

governments of the greatest nations in the world considered the word of

this “all-powerful” man to be the final decision, incontestably valid

for every German, and based their decisions on major questions on the

very fact that Hitler’s order was incontestable. To mention only the

most striking cases, this fact was relied upon when the British Prime

Minister, Mr. Neville Chamberlain, after the Munich Conference,

displayed the famous peace paper when he landed at Croydon. This fact

was pointed to when people went to war against the Reich as the barbaric

despotism of this one man.

No political system has yet pleased all people who live under it or who

feel its effects abroad. The German political system in the Hitler era

displeased a particularly large and ever-increasing number of people at

home and abroad. But that does not in any way alter the fact that it

existed. Its existence was in part due to the recognition from abroad

and to its effectiveness, which caused a British Prime Minister to make

the now world-famous statement at a critical period, that democracies

need two years longer than totalitarian governments to attain a certain

goal. Only one who has lived in the outer cold and as though outcast

among his own people amidst blindly believing masses, who idolized this

man as infallible, can tell how firmly Hitler’s power was anchored in

the nameless and numberless following who held him capable of doing only

what was good and right. They did not know him personally; he was for

them what propaganda made of him, and this he was so uncompromisingly

that everybody who saw him from close range and summed him up

differently clearly realized that opposition was utterly pointless and,

in the eyes of other people, did not even represent martyrdom.

Would it therefore not be a self-contradictory process if both the

following assertions were to be applied at the same time in the rules

governing this Trial? First, the Reich was the expression of the

despotism of this one man and for that very reason a danger to the

world. Secondly, every functionary had the right—in fact the duty—to

examine the orders of this man and to obey or not obey them, according

to the result of this examination.

The functionaries had neither the right nor the duty to examine the

orders of the monocrat to determine their legality. For them these

orders could never be illegal at all, with a single exception which will

be discussed later—an exception which, when carefully examined, will be

seen to be only an apparent one—namely, with the exception of those

cases in which the monocrat placed himself, according to the

indisputable axioms of our times, outside every human order and in which

a genuine question of right or wrong did not arise, so that no genuine

examination was called for, either.

Hitler’s will was the final authority for their considerations on what

to do and what not to do. The Führer’s order cut off every discussion.

Thus a person who as a functionary of the hierarchy invokes an order by

the Führer is not trying to claim exemption from punishment for an

illegal action but opposes the assertion that his conduct was illegal;

for it is his contention that the order with which he complied was

legally unassailable.

Only a person with full comprehension of this can have a conception of

the hard inner struggles which so many German officials had to fight out

in these years in the face of many a decree or resolution of Hitler’s.

For them such cases were not a question or a conflict between right and

wrong; disputes about legality sank into insignificance. For them the

problem was one of legitimacy; as time went on, human and divine law

opposed each other ever more strongly and frequently.

Whatever the Charter means by the orders which it rejects as grounds for

exemption from punishment, can this be meant to apply to the Führer’s

orders? Can they come within the meaning of this rule? Must one not

accept this order for what it was according to the interior German

constitution as it had grown, a constitution explicitly or implicitly

recognized by the community of states? Many Germans disapproved of

Hitler’s position of power from the very beginning; and to many Germans,

who welcomed it at first because they yearned for clear and quick

decisions, it later became repugnant. But that in no way affects the

following: Must not those people who did their duty in the hierarchy,

willingly or unwillingly, in accordance with the constitution, feel that

an injustice is being done to them if they were sentenced because of a

deed or an omission which was ordered by the Führer?

A community of states might refuse to accept or tolerate as members such

states as have a despotic constitution. Yet up to now this has never

been the case. If it is to be different in the future, the nondespotic

powers must take the necessary steps to prevent any member of the family

of states turning into a despotic power and to prevent any despotic

power from entering the family circle from outside. Today people are

realizing more and more clearly that this is the crux of our question.

The circumstances must be very special ones if a modern people is to let

itself be governed despotically, even when as well-disciplined as the

German people. But wherever such circumstances do exist, no domestic

countermeasures are of avail. In that eventuality only the outside world

can help. If, instead, the outside world prefers to recognize this

constitution, it is impossible to see where successful domestic

resistance can spring from. In pointing to these special circumstances

and to the recognition by the outside world, we are drawing attention to

facts for the existence of which, to take our case, no German was

responsible but which cannot be ignored when the question is asked how

all this was possible.

Attention must also be drawn to certain further facts without knowledge

of which one cannot fully grasp the fact that Hitler’s absolute

monocracy was able to establish such a terribly firm hold. Hitler

combined in his person all the powers of issuing legislative and

administrative orders of a supreme character, orders which could not be

questioned and were absolutely valid; but immediately below him the

power of the state was divided up into a vast mass of spheres of

competence. The dividing lines between these spheres, however, were not

always sharply drawn. In a modern state, particularly in major states of

our technical era, this cannot be avoided. The tendency to exaggerate

questions of competency is certainly no less marked in Germany than in

any other country. This certainly facilitated the erection of barriers

between the departments. Every department was jealously watching to see

that no other trespassed into its field. Everywhere it was prepared for

tendencies of other departments toward expansion. Considering the great

mass of tasks which the so-called “totalitarian” state had heaped upon

itself, cases where two or three departments were competent for the same

matter could not be avoided. Conflicts between departments were

inevitable. If a conspiracy existed, as the Indictment assumes, the

conspirators were remarkably incompetent organizers. Instead of

co-operating and going through thick and thin together, they fought one

another. Instead of a conspiracy we would seem to have had more of a

“dispiracy.” The history of the jealousy and mistrust among the powerful

figures under Hitler has still to be written. Now let us remember that

in the relations between all departments and within each department,

people surrounded themselves with ever-increasing secrecy; between

departments and within each department, between ranks and within the

various ranks, more and more matters were classed as “secret.” Never

before has there been so much “public life,” that is, nonprivate life in

Germany as under Hitler; and also never before was public life so

screened off from the people, particularly from the individual members

of the hierarchy themselves, as under Hitler.

The single supreme will became, quite simply, technically indispensable.

It became the mechanical connecting link for the whole. A functionary

who met with objections or even resistance to one of his orders on the

part of other functionaries only needed to refer to an order by the

Führer to get his way. For this reason many, very many, among those

Germans who felt Hitler’s regime to be intolerable, who indeed hated him

like the devil, looked ahead only with the greatest anxiety to the time

when this man would disappear from the scene. For what would happen when

this connecting link disappeared? It was a vicious circle.

I again stress the fact that an order by the Führer was binding—and

indeed legally binding—on the person to whom it was given, even if the

directive was contrary to international law or to other traditional

values.

But was there really no limit? During the first period, at any rate,

that is, just at the time when the foundations of power were being laid,

at the time when the monocratic constitution was being developed step by

step, Hitler’s followers among the people saw in their Führer a man

close to the people, an unselfish, almost superhumanly intuitive and

clear-thinking pilot and believed only the best of him; they had only

one worry: Was he also choosing the right men for his assistants, and

was he always aware of what they were doing? The tremendous power, the

unlimited authority were vested in this Hitler. As in every state, this

might include harsh orders. But it was never intended as giving full

power to be inhuman. Here lies the boundary line; but this line has at

no time and nowhere been quite clearly drawn. Today the German people

are utterly torn in their opinions, feelings, and intentions; but they

are probably in agreement on one thing, with very few exceptions: As

accusers, they would not wish to draw this line with less severity than

other people do toward their leaders. Beyond that line, Hitler’s order

constituted no legal justification.

It must not be forgotten, however, that this line is not only vague by

nature but also follows a different course in peace than in wartime,

when so many values are changed and when men of all nations, especially

in our days, take pride in deeds which would horrify them at any other

time. And the decision to wage war does not in itself overstep that

line, in spite of its tremendous consequences—not with any nation in

the world.

Hitler himself, at any rate, did not recognize this boundary line of

inhumanity, of nonhumanity, as a limit to obedience in his relations

with his subordinates; and here again opposition would have been

considered a crime worthy of death in the eyes and judgment of this man,

invested as he was with limitless power and controlling an irresistible

machine. What should a man who received an order exceeding the line have

done? What a terrible situation! The reply given in Greek tragedy, the

reply by Antigone in such a conflict cannot be imposed. It would show

scant knowledge of the world to expect it, let alone demand it, as a

mass phenomenon.

Before we come to the specific question of who in the Reich possessed

the power of deciding on war and peace, one more word remains to be said

about the forms which Hitler’s orders assumed.

Hitler’s orders are solely the decisions of this one man, whether they

were given orally or in writing and, in the latter case, whether they

were clothed in more or less ceremony. There are some orders by Hitler

which can be recognized as such immediately. They are called “Erlass”

(decree), such as the decree concerning the institution of the

Protectorate of Bohemia and Moravia of 16 March 1939; or “Verordnung”

(order), like the order for the execution of the Four Year Plan of 19

October 1936; or “Weisung” (directive), like the strategic decisions so

often cited during this Trial; or simply “Beschluss” (decision) or

“Anordnung” (instructions). Often they are signed in Hitler’s name only;

sometimes we find the signatures of one or more of the highest civil or

military functionaries as well. But it would be fundamentally wrong to

assume that this was a case of countersignature as understood in the

modern democratic constitutional law of nations ruled constitutionally

or by a parliament—of a countersignature which makes the signatory

responsible to a parliament or to a state court of law. Hitler’s orders

were his own orders and only his own orders. He was much too fanatical a

champion of the one-man doctrine, that is, of the principle that every

decision must be made by one and only one man even to consider anything

else, especially in the case of his own decisions. We will leave his

high opinion of himself entirely aside in this connection. Whatever the

more or less decorative significance of such countersigning may have

been, there was never any doubt that the Führer’s orders represented

nothing but his own decision.

Special attention must be drawn to those laws which appeared as Reich

Cabinet Laws or Reichstag Laws. Hitler’s signing of a law of the Reich

Cabinet represented the formal certification of a Cabinet decision. In

actual fact, however, a stage was reached where the Reich Cabinet Laws

were also merely decisions by Hitler, who had previously given some of

his ministers the opportunity to state the opinion of their departments.

And when Hitler signed a law which, according to its preamble, had been

decreed by the Reichstag, this was again only a case of a formal

certification. In reality, however, it was a decision by Hitler. From

November 1933 onward, at the latest, the German Reichstag was no longer

a parliament but merely an assembly for the acclamation of Hitler’s

declarations or decisions. These scenes of legislation appeared to many

people at home and abroad to amount almost to an attempt to make

democratic forms of legislation ridiculous by caricaturing them; nobody,

either at home or abroad, regarded them as proceedings during which an

assembly of several hundred men arrived at a decision after

consideration, speeches, and counterspeeches.

There exist, however, also orders by Hitler which are not signed by him

but which can immediately be recognized as his orders. They are drawn up

by a Reich Minister or some other high functionary, who states in the

introduction “The Führer has ordered” or “the Führer has decreed.” This

is not an order by the signatory, but a report by the signatory on an

order given orally by Hitler. The orders by Hitler as Supreme Commander

of the Armed Forces were thus often clothed in the form of such a

report.

Finally there are orders by Hitler which can only be recognized as such

by a member of the public if he possesses knowledge of the

constitutional position. When the High Command of the Armed Forces (OKW)

issues an order, it is always an order by Hitler; Hitler himself,

together with his working staff, was the OKW. The power to issue OKW

orders rested solely with Hitler.

By my explanations regarding the constitution of the Hitler Reich, I

have already—as it were by implication—dealt with the question as to

who was responsible for the ultimate decisions, for this state’s

decisions regarding fundamental questions of existence, especially for

the decision about war and peace. Kelsen said—in his great treatise of

the year 1943,[57] which I have already mentioned above—“probably the

Führer alone.” We shall have to say: quite definitely alone.

Under the Weimar Constitution the sole body responsible was the Reich

legislature, for Article 45 demands a Reich Law for a declaration of war

and for the conclusion of peace. And a Reich Law could be passed only by

the Reichstag or by a vote of the German people. Neither the Reich

President, that is, the head of the State, nor the Reich Cabinet had the

power. They might, at most, have created such circumstances by acts

lying within their jurisdiction—possibly the Reich President as

Commander-in-Chief of the Armed Forces—so as to give the Reich

legislature no option in its decision; a problem which, as far as I

know, became a tangible one in the United States with regard to the

relationship of the President to Congress and was therefore seriously

discussed, while it was never a tangible one for the Germany of the

Weimar Constitution. If, however, the Reich legislature had by means of

a law taken the decision to wage war, the Reich President and the whole

State hierarchy, particularly the Armed Forces, would have been bound by

this decision with no right of examination, let alone of objection, even

if all the experts on international law in the world had regarded the

law as contrary to international law. The Weimar democracy could not

have tolerated, any more than any other nation, a state of affairs in

which military leaders as such could examine the decision to wage war

taken by the political leaders, in the sense that they could refuse

obedience if they saw fit. The military means of power must remain at

the disposal of the political leaders of a state. Otherwise they are not

means of power at all. That has always been so. And it will have to be

so all the more if the duty to give assistance against aggression is

really to apply among the nations.

I have already shown how, in the course of a gradual transformation

which laid particular emphasis on legal forms, Hitler replaced all the

highest authorities of the Weimar period and combined all the highest

competencies in his own person. His orders were law.

The circumstances in a state can be such that the man who is legally the

only one competent for the decision on war and peace, may have, in

practice, no—or not the sole—authority. If, however, both the sole

legal competence and the sole authority in actual practice have ever

been coincidental in any state, then such was the case in Hitler

Germany. And if, in any question, Hitler did ever go as far as to accept

the advice of a third party, then that was certainly not the case in the

question of war or peace. He was the arbiter of war and peace between

the Reich and other nations—he alone.

I conclude: Sentences against individuals for breach of the peace

between states would be something completely new under the aspect of

law, something revolutionarily new. It makes no difference whether we

view the matter from the point of view of the British or the French

chief prosecutors.

Sentences against individuals for breach of the peace between states

presuppose other laws than those in force when the actions laid before

this Tribunal took place.

The legal question of guilt—and I am here only concerned with that—is

thus posed in its full complexity, for not one of the defendants could

have held even one of the two views of the legal world constitution, on

which the chief prosecutors base their arguments.

THE PRESIDENT: Dr. Sauter, could we take up the time between now and 1

o’clock in dealing with that letter, if you have it now? And possibly

Dr. Exner also has his letter.

DR. SAUTER: The Defendant Walter Funk was questioned here as a witness

under oath. After his examination, he told me that on one point his

testimony was not quite correct; and he asked me to correct his

testimony on this point, since he himself had no opportunity to do so.

On 17 June 1946 I wrote the following letter to the President of the

International Military Tribunal, which is signed by defendant’s counsel

Dr. Sauter as well as by the Defendant Walter Funk personally. I shall

read the text of the letter:

“Re: Penal case against Walter Funk; correction of the

testimony.

“The Defendant Walter Funk in his cross-examination on 7 May

said that he”—that is, Funk—“heard only through Vice President

Puhl of a deposit of the SS at the Reichsbank. The witness, Emil

Puhl, when he was examined, testified that it was Funk who had

spoken with the Reichsführer SS Himmler and he”—that is,

Puhl—“was then informed by Funk about the deposit to be set up.

From the statements of the witness Emil Puhl the Defendant Funk

reached the conclusion that, in fact, on this point, the

statement of the witness Emil Puhl is correct; and after some

consideration, the Defendant Funk believed that he could recall

that it was he, Funk, to whom Reichsführer SS Himmler first

applied concerning the establishment of a deposit for the SS and

that he then informed Vice President Puhl about this matter.

“The statement by the Defendant Funk under cross-examination was

due to faulty recollection, because of the fact that these

cross-examination questions of the Prosecution had completely

surprised and greatly disturbed Funk. Immediately after the

examination of the witness Puhl, Funk informed me of his mistake

and asked me to correct his factually incorrect statement on

this point, since he himself would have no opportunity to do so.

“I put forward this request of the Defendant Funk, and I take

the liberty of informing the President of the correct state of

affairs. The Defendant Funk agrees with this correction by

cosigning this letter.”

Then there are the two signatures, “Walter Funk” and “Dr. Sauter.” That

is the content of the letter, which I sent on 17 June 1946, to the

President to correct the testimony of Funk.

THE PRESIDENT: Thank you, Dr. Sauter.

Dr. Exner, have you got your letter so that you can read it?

PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): Mr. President, I

was downstairs in the General Secretary’s office, and I was promised it

at 1:30, but I have not yet received it. I am sorry; at the moment I am

not in a position to fulfill your request.

THE PRESIDENT: You probably will have it at 2 o’clock.

[_The Tribunal recessed until 1400 hours._]