The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-First Day: Thursday, 4th July, 1946
(Part 1 of 8)

[Page 80]


DR. SAUTER (counsel for the defendant Funk): If you please, sir.

THE PRESIDENT: The Tribunal has received your letter of 17th June of this year signed by the defendant Walter Funk.


THE PRESIDENT: The Tribunal proposes to take notice of that, and if you will read it, it will then become a part of the record.

DR. SAUTER: Mr. President, at the moment I have not the letter with me.

THE PRESIDENT: You may have my copy but that is in English. The Tribunal would wish you to read the letter at two o'clock.

DR. SAUTER: Thank you, Mr. President.

THE PRESIDENT: The same observation applies to Dr. Exner's letter of 23rd June, 1946, on behalf of the defendant Jodl; only the Tribunal thinks that that letter also should be signed by the defendant and read by Dr. Exner at two o'clock.

I call on Dr. Jahrreiss.

DR. JAHRREISS (counsel for the defendant Jodl): Mr. President and gentlemen of the Tribunal, the main juridical and fundamental question of this trial concerns war, which is forbidden by International Law, the breach of peace: as treason to the world constitution.

It overshadows all other juridical questions. The four chief prosecutors discussed this problem in their opening speeches, sometimes as the central problem of their presentation, sometimes as a fundamental problem and, indeed, not without looking at it from different perspectives.

Counsel for the defence has to examine it now. From among the defence counsel, I have been asked to conduct this examination. It is true that it remains for every counsel to decide if and to what extent he feels himself in a position, as a result of my arguments, to renounce his own presentation of the question of the breach of the peace. But I have reason to believe that this possibility will be used to such an extent that the intention of the counsel for the defence, considerably to simplify technically that part of the trial which is now beginning, will be realised by my speech.

I have to deal here only with the juridical question and not with the evaluation of the hearing of evidence which has lasted for months. And I am also dealing only with the question of such law as is at present valid, not with the question of such law as could or should be demanded in the name of ethics or of human progress.

I have a purely scientific task to fulfil; science wants nothing but the truth, knowing full well that its goal can never be completely 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 and very important nature. Without this kind assistance, it would not have been possible under the present conditions in Germany to complete my work. This literature, now accessible to me, was published predominantly in the United States. Knowing the vast French and English technical

[Page 81]

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 that I can fairly say that no important idea is 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 fundamental than in the United States.

It was this fact that enabled me to forgo the use of the technical literature published in the former German sphere of control. In this way even the semblance of a pro domo line of argument will be avoided.

Because of the short time at my disposal for this speech and, at the same time, owing to the number and difficulties of the problems with which I have to deal, it is not possible to read here the documents and quotations which I am using. I shall present only a few sentences. Any other procedure would interrupt the line of argument. I, therefore, submit to the Tribunal the documents and references to books in appendices to my juridical arguments. In this way, what I say can be quickly verified.

The Charter threatens individuals with punishments for breach of the peace between States. And it appears that the Tribunal accepts the Charter as the unquestionable basis for all juridical considerations.

This means that the Tribunal does not examine the question whether the Charter is, as a whole or in parts, open to juridical objections; a question which nevertheless remains open.

If it is so, why then have any discussion at all here on the great fundamental legal questions?

The British Chief Prosecutor even made it the central theme of his long address to examine the relationship of the Charter, where our question is concerned, to the existing International Law. He justified the necessity of his arguments as follows: It is the task of this trial to serve humanity, and this task could be fulfilled by the trial only if the Charter was consistent with International Law, that is, if the punishment of individuals for breach of the peace between States was founded in the 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 is not carried out here in order to facilitate the work of the historians. They will examine this, just as they will all the other findings in this trial, according to the rules of free science, perhaps through many years of work and certainly without limiting the ground covered by the questions and, if possible, on the basis of an incomparably greater quantity of documents and evidence.

Such a clarification is indispensable, simply for the reason that the decision as to right and wrong depends, or may depend, upon it, particularly if the Charter is considered legally unassailable.

Let us assume that it were thus: 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 this not be important for the question of guilt?

Perhaps the retroactive law which, for instance, penalises aggressive war was not already fixed in the conscience of humanity at the time when the act was committed, nor was the ground even simply prepared for it there. Then the defendant cannot be guilty in the sense that he was aware of the wrongfulness of his behaviour; not according to his own conscience nor that of others.

Or the retroactive law was perhaps promulgated at a time when a new conscience was just beginning to take shape but was still not clear or not general. It is then in any case possible that the defendant is not guilty in the sense that he was aware of the wrongfulness of his commissions and omissions.

At any rate, from the point of view of continental European thought on penal law, the fact that a person was not aware of doing wrong is a point which the Tribunal must not overlook.

[Page 82]

Now the question as to whether the penal law contained in the Charter is ex post facto penal law does not present any difficulty if the stipulations of the Charter are unequivocal and the prescriptions of International Law to date are uncontested.

But what if we have regulations capable of several 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 interpretation which can be justified, 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 the interpretation of the Court, but experts on International Law are of different opinions on the legal position to date. It is not certain whether we have got an ex post facto law before us.

In both cases it is relevant whether the defendant was conscious of the wrongfulness of his behaviour.

I intend to elucidate how important these considerations are in this trial.

I shall now begin the examination.

The starting points of the British and French Chief Prosecutors are fundamentally different.

The British Chief Prosecutor argued as follows, if I understood him correctly:

(1) The unrestricted right of States to wage war was partly eliminated by the League of Nations Covenant and later fundamentally by the Briand-Kellogg Pact, which continues to be the core of the world peace order even today. War, which is thus prohibited, is a punishable violation of law within and towards the community of nations. And the individual who has acted in a responsible position is punishable.

(2) The indictment of individuals for breach of the peace is, indeed, something new, not only morally demanded, but also long overdue in the course of legal developments; it is, in fact, simply the logical result of the new legal position. The Charter only appears to create new law.

And if I understood the British Chief Prosecutor correctly, he asserts: Since the conclusion of the Pact of Paris there is a clear legal order based on the whole world's uniform convictions 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 with some of the smaller Powers, concerning the conclusion of a treaty intended to abolish war. Secretary of State Kellogg stated with memorable insistence what the Government in Washington was striving for, namely:

The Powers should renounce war as an instrument of national policy and this without legal definitions from a practical point of view, with purity and simplicity unequivocally and without qualifications or reservations. For otherwise the object desired could not be attained:

To abolish war as an institution, i.e., as an institution of International Law.

After the negotiations had been concluded, Aristide Briand, the other of the two statesmen from whose initiative springs the pact, which in Germany is often called the pact to outlaw war (Kriegsaachtungspakt), declared when it was signet 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 stripper of that which constituted its greatest danger: its legality. Branded hence forth as illegal, it is truly outlawed by agreement ...."
According to the conception of both leading statesmen, the Paris Pact meant change of the world-order at its very roots, if only all or almost all the nations o the world, and particularly all the Great Powers, signed the pact or adhered to it later on, as did actually happen.

The change is supposed to be the following:

[Page 83]

Up to the time of the Briand-Kellogg Pact, war had been an institution of International Law.

Since the Briand-Kellogg 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 the unique commentary on the League of Nations Covenant by which Jean Ray influenced, far beyond the borders of France, the practical and theoretical proponents of the idea of preventing war.

It is also the basic conception of the Indictment at Nuremberg.

Diplomacy and the science of International Law found their way back into the old tracks after the First World War, after a shock from which they recovered with remarkable rapidity. This to the horror of those who wanted to see the consequences - all the consequences - 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. 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 happy use of his own preparatory work and that of others - 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 be best condensed as follows:

It is necessary to start afresh. The tragic chain of wars and mere armistices which are called peace must be broken.

For once humanity must have the insight and the will to pass from war to real peace, i.e., to peace which is good in its essence - on existing legal foundations, 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, namely excessive armaments, secret treaties and the consecration of the status quo as a result of the lack of insight of the current owner - a consecration which is harmful to vital needs - are eliminated.

Humanity did not follow this path. And it is not to be wondered at that amongst those who fought against the instruments of Versailles, St. Germain, Trianon, Neuilly and Sevres, be they 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 16th July, 1937, indicated in unusually strong words that an alteration of unjust, imposed treaties was an indispensable premise for real world peace, they followed one of the fundamental views of the great American president.

Humanity did not follow Wilson. For the members of the League of Nations, too, war remained a means for settling disputes prohibited only in individual cases, but normal on the whole.

So said Jean Ray as late as 1930:

"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 on a complete backsliding into the old state. For, in fact, the world slid back entirely."
This is then the all-decisive fact in our problem of law. Before the commencement of the Second World War the whole system of collective security, even in the scanty beginnings it had made, had collapsed, and this collapse was acknowledged and declared expressly, or shown by unambiguous actions, by three world powers - and, in fact, declared with full justification. Great Britain expressly 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 classic International Law concerning debellatio. I shall explain this shortly.

[Page 84]

The United States declared their strict neutrality. I shall explain the import of this declaration.

The system of collective security has been the subject of much dispute. In this question of the world's conscience, which is also of fundamental importance in this trial, it cannot be a matter of indifference that this system, rightly or wrongly, appeared in 1938 to such a prominent specialist on International Law as the American, Edwin Borchard, as absolutely inimical to peace and as the child of the hysteria of our age; and 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 this as a consequence of the German-Polish war.

(1) On 7th September, 1939, the British Foreign Office told the Secretary General of the League of Nations:

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