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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-Sixth Day: Thursday, 25th July, 1946
(Part 8 of 9)

[Page 372]

DR. SEIDL: Moreover, the following is to be said about Article 6, paragraph 3, of the Charter:

The concept of conspiracy, as it has been expressed in Article 6, paragraph 3, is a typical institution of Anglo- American law. The Continental European law does not know any such criminal concept. But there cannot be any doubt that international penal law, in so far as there is any such law in the more narrow and proper sense of the term, and if one does not understand by it the sum total of the rules which are to be observed in the application of national or foreign law, likewise does not know the concept of conspiracy as a group of facts constituting a crime in criminal law.

But it is not only the question of prevailing International Law and the agreement of the Charter with the same, which is to be put to test. The issue in connection with this is rather the answering of the following question also:

In the opening speeches of the four Chief Prosecutors and also in the discussions prior to the trial concerning the legal basis of the trial, two entirely contradictory arguments were advanced. While some argued that the Charter was a complete expression of the prevailing International Law and was in agreement with the common legal beliefs of all members of the international legal community, the others asserted that one of the main tasks of the International Military Tribunal which was then to be set up would be to develop International Law further. This latter opinion, for example, stands out clearly in the report of the American Chief Prosecutor to the President of the United States of 7th June, 1945. Here, word for word, it states among other things:

"In initiating this trial, we must also remain aware of the aims with which our people assumed the burdens of war. After we entered the war, and our men and our wealth were mobilised to eradicate this evil, there was the general feeling among our people that out of the war there should arise unmistakable rules and a practical machine from which anyone who entertains the thought of a further predatory war should realize that he will be personally held responsible and that he will be personally punished."
Or in another-part of this report, the following is stated literally:
" ... According to the International Law of the nineteenth and early twentieth centuries, the waging of war was not generally considered as unlawful or as a crime in the legal sense. Summed up, the prevailing doctrine held that both parties in any war were to be considered as being in the same legal situation and therefore had the same rights."
The legal considerations in the report then actually conclude with the following challenge:
"... An attack against the fundamental principles of international relations must be considered as nothing less than a crime against the community, which rightly must protect the integrity of its fundamental agreements by punishing the aggressor. We, therefore, propose to raise the challenge that a war of aggression is a crime and that modern International Law has abandoned the justification according to which he who instigates or wages a war acts in accordance with the law."
And, as a matter of fact, it would not be necessary to raise the demand for a new penal law if the action under consideration was already threatened with punishment by existing law.

It is obvious that the fulfilment of such a demand by a court of law - regardless of whatever legal basis there may be for its proceedings - would be contradictory to a principle derived from the penal legislation of nearly all civilised nations, and which finds its expression in the rule nulla poena sine lege, meaning, therefore, that an act can only be the object of punishment if the act was declared

[Page 373]

punishable by law before the act was committed. This state of affairs seems all the more remarkable, since the rule nulla poena sine lege is a principle firmly rooted in the constitution of practically all civilised nations. Thus, for example, it is contained in Article 39 of the English Magna Charta of King John of 1215, in the American Constitution of 1776, and in the declarations of the French Revolution in 1789 and 1791. This principle of "nulla poena sine lege" is not only contradictory to the assumption of a crime against peace, such as is to be defined by the Tribunal in the further development of prevailing International Law as a punishable act in the opinion of some of the Prosecutors, but rather it is also especially contradictory to the idea or intention of creating still another independent concept of conspiracy in criminal law by judicial dictum, in the further development of hitherto existing International Law. In this it cannot make any distinction as to whether this conspiracy was directed toward committing a crime against the peace or committing a crime against the customs of war. Also, the assumption of a common plan or an agreement to commit war crimes as an independent crime in criminal law is not compatible with the principle of "nulla poena sine lege". What are applicable here are rather - as already correctly. expounded by the French Chief Prosecutor - the rules defining participation according to the law of the perpetrator's own country or according to the law in the place of perpetration. Under given circumstances, these rules defining participation are limited to the extension of the threat of punishment to cases of complicity, instigation and assistance.

Apart from his participation in the general plan or conspiracy, as defined in Count 1 of the Indictment, the defendant Rudolf Hess, in connection with his personal responsibility for war crimes and crimes against humanity, is essentially accused by the prosecution on the basis of the contents of only one document, and that is Exhibit GB 268 (Document R-96).

This concerns a letter from the Reich Minister of Justice to the Reich Minister and Chief of the Reich Chancellery on 12th April, 1941, which deals with the introduction of penal laws against Poles and Jews in the incorporated Eastern territories. The defendant Rudolf Hess plays a part in this only in so far as the latter mentions, among other things, that the Deputy of the Fuehrer had proposed the discussion of the introduction of corporal punishment. If one considers that the staff of the Deputy of the Fuehrer alone comprised 500 officials and employees, and that for questions of legislation there was a special department which dealt directly with the separate ministries, it seems very doubtful whether the defendant Rudolf Hess was personally concerned in this matter at all. In this connection I refer to the affidavit of the witness Hildegard Fath, Exhibit Hess 16. Considering, however, that the measure proposed for discussion by the Deputy of the Fuehrer was not introduced, the knowledge of the defendant should not matter very much. Without it being necessary to probe any deeper into the subjective elements of the case, it can be said that, in application of principles such as can be derived from the penal law of all civilised countries, there is here not even an attempt. The attitude of the Fuehrer, or, more correctly, the Deputy of the Fuehrer, as expressed in the letter of the Reich Minister for Justice is irrelevant from the point of view of criminal law. We need not consider whether a penal law would have been violated if the measure proposed for discussion had actually found legislative expression in a Reich law.

Another document submitted by the prosecution is Exhibit USA 696 (Document 062-PS). This refers to the order of the Deputy of the Fuehrer of 13th March, 1940, which deals with the instructing of the civilian population as to the proper attitude to be adopted in case of landings by enemy aircraft or parachutists on German national territory. This is the same document concerning which I have already applied for a correction of the translation because the translation from German into English was at any rate in my opinion not correct. This document, however, is neither contained in the trial brief submitted by the British prosecution,

[Page 374]

nor was it mentioned by Colonel Griffith-Jones on 7th February, 1946, when he discussed the personal responsibility of the defendant Rudolf Hess. In consideration, however, of the fact that this order was officially submitted as documentary evidence, it is necessary to go into it as briefly as possible.

The occasion for this order of 13th March, 1940, was the fact that the French Government had given instructions to the French civilian population officially and by radio as to how they were to conduct themselves in case of landings by German aircraft.

On the basis of these instructions of the French Government, the Commander-in-Chief of the German Luftwaffe considered himself also called upon, for his part, to inform the German population accordingly via the official Party channels. He therefore issued a directive about the attitude to be adopted in the case of landings by enemy aircraft or parachutists, which was used as an annex to the above- mentioned order of the Deputy of the Fuehrer of 13th March, 1940.

This directive, however, does not contain anything which is contrary to the laws and customs of warfare, as they have been expressed, for example, in the Hague Rules on Land Warfare. This applies particularly to No. 4 which contains the order that enemy parachutists are either to be arrested or rendered harmless. According to the text as well as the sense of No. 4, there cannot be the slightest doubt that this was only meant to say that enemy parachutists were to be fought and subdued if they did not surrender voluntarily and tried to avoid their arrest by using force, particularly by the use of fire-arms. This becomes evident from the word "or" alone. First of all, the attempt was to be made to take them prisoner. This alone in the interest of the Intelligence Service. Only if this proved impossible because of resistance were they to be rendered harmless, that means subdued.

Any other interpretation of this order would not only be contrary to the text and the sense, but, moreover, would also be contrary to the fact that up to the French campaign, the war had been waged according to rules such as had been established, among other agreements, in the Hague Convention on Land Warfare, and that, at any rate at that time, March, 1940, the war had not yet developed into the mutual struggle for annihilation that it was to become after the outbreak of the German-Russian war. The fact that a different interpretation is absolutely impossible is also evident from the so-called "Commando Order" of the Fuehrer of 18th October, 1942, which was presented by the prosecution in Exhibit USA 501 (Document 498-PS). The deliberations preceding this order - which, by the way, was issued under completely different conditions - and the fact that this "Commando Order" was decreed by Hitler himself, in spite of the opposition of the Wehrmacht High Command and the Chief of the Wehrmacht Operations Staff, would have been entirely superfluous if the Commander-in-Chief of the Luftwaffe had already issued instructions which served the same purpose in March, 1940. It is, furthermore, expressly specified under No. 4 of the Fuehrer order of 18th October, 1942, that captured members of commando groups were to be handed over to the SD.

As the German text of this directive about the order of 30th March, 1940, is completely unequivocal and does not leave any room for doubt, I refrained from procuring additional evidence about this question. In the event, however, that the Tribunal should not share this assumption, it would be unavoidable for the complete clarification of the facts that the Tribunal should, on its own initiative, procure the instructions which the French Government issued at the beginning of the year 1940 to the French civilian population relative to landings by German aircraft or German parachutists.

It is not necessary to go into any more detail about Exhibit GB 267 (Document PS-3245) which is also brought forward against the defendant Hess, as the contents of this document can under no circumstances be considered a crime against the rules of warfare or against humanity, if the above-mentioned principles are applied.

[Page 375]

Besides being indicted as an individual, Rudolf Hess is also indicted as a member of the SA, the SS, the Corps of Political Leaders and the Reich Cabinet. As far as his membership in the SA and the SS is concerned, more detailed explanations are superfluous. From the documents presented by the prosecution, it becomes evident that the defendant Hess held only the honorary rank of an Obergruppenfuehrer in both of these organizations. No command or disciplinary powers were connected with it.

As Deputy of the Fuehrer, however, the defendant Rudolf Hess held the highest office which existed in the Corps of Political Leaders. I cannot assume the task of commenting in detail on the charge which is brought against the Corps of Political Leaders under, and in application of, Article 9 of the Charter, and which is characterised by its motion to declare the Corps of Political Leaders a criminal organization. Considering the fact, however, that the defendant Rudolf Hess, although not the only political leader here in the dock, was nevertheless the supreme political leader, there appears to be occasion for making a few fundamental remarks.

According to Article 9 of the Charter, the Tribunal can declare to a member of an organization that the organization to which the defendant belongs or belonged was a criminal one. According to the Charter, a necessary condition for this is that the declaration of the Tribunal be connected with an act for which the defendant is convicted.

By an "act" within the meaning of Article 9 of the Charter, one can only understand a deed of commission or omission for which the defendant is personally accountable and to blame, but not, on the other hand, the increased liability for the act of another resulting from Article 6, paragraph 3. Since, however, neither in the Indictment nor in the trial brief dealing with the personal responsibility of the defendant Rudolf Hess is an act of any kind charged against him which satisfies the conditions constituting a war crime or a crime against humanity, a conviction of the defendant Hess, in this case also - namely, as a member of the Corps of Political Leaders - would be synonymous with the establishment of a criminal responsibility for the acts or omissions of another. Although the defendant Hess was the highest political leader, and although no action is charged against him which constitutes a crime according to any penal law, he is to be convicted as a member of the allegedly criminal organization of which he was the leader; it cannot be denied that this is a Legal situation which does not happen every day.

But something else appears more important. The defence was compelled to attack the very heart of the Charter, namely, Article 6, as not being consistent with generally valid principles of International Law. Article 9 of the Charter is no less in contradiction with the common legal beliefs of all members of the international legal community. There is neither a legal statute in International Law, nor a legal statute in any national law, which declares the membership in an organization as criminal without examining in each individual case whether the person concerned has made himself personally guilty by his own actions or omissions. Contrary to the general principles of criminal law, as they are derived from the penal laws of all civilised countries, the Charter provides in Article 9 for a criminal responsibility and collective liability of all members of certain organizations and institutions, and this without any consideration as to whether the individual member has incurred any guilt.

The Charter thus abandons a principle which is an integral part of any modern system of criminal law. The rule of "no punishment without guilt" (and the declaration that a certain organization is criminal is a punishment for the members affected by it) is an essential part of the idea of the criminal law of our time, in so far as one understands by guilt the sum total of those necessary conditions for punishment which justify the personal reprobation of the unlawful act as against the culprit. If the fact of membership alone in a certain organization becomes the object of a sentence of criminal unworthiness, then the act which constitutes the

[Page 376]

charge no longer appears as a legally objectionable expression of the culprit's personality. This must particularly apply to organizations which had hundreds of thousands, and even millions of members.

For that reason, punishment without guilt has hitherto existed only among primitive peoples.

Therefore, von Liszt, the great German teacher of criminal law, who was at the same time a constructive thinker in the field of International Law, says appropriately:

"Just as religious teaching does not oppose the visiting of the sins of the fathers on the children and on the children's children, just as in the dramas of the ancients the place of guilt is taken by blind, inexorable fate and in the literature of today by the law of heredity, so even the oldest laws of all nations know of no penalty without guilt."
Only in primitive law did there exist a criminal responsibility without guilt. As a matter of fact, in the legal history of all countries, the so-called criminal responsibility for the effects of crime without actual guilt was very soon replaced by the principle of responsibility attaching to the guilty only, and thereby that state was reached which is alone compatible with the dignity of man. The regulation provided by Article 9 of the Charter signifies not only a regrettable contribution to the hastening of the apparently inevitable reduction of men to mere members of a mass, but it is, moreover, a relapse to the first beginnings of concepts of criminal law. Considering these facts, it cannot be acknowledged that this provision of the Charter is in agreement with prevailing law as it is derived from the common legal beliefs of all the members of the community of International Law and from the general principle of criminal law in all civilised nations.

Rudolf Hess is finally accused as a member of the Reich Cabinet. In so far as his membership in the Secret Cabinet Council is concerned, the following may be said. The presentation of evidence has shown that this Secret Cabinet Council was only created so that the resignation of former Reich Foreign Minister von Neurath would not appear to the public as signifying a breach between him and Adolf Hitler. Actually, no session of this Secret Cabinet Council ever took place. The Council did not even meet to outline ifs sphere of activity.

With reference to the Reich Cabinet, it is established on the basis of the results of the presentation of evidence that no Cabinet meetings took place after 1937 at the latest. The tasks to be performed by the Reich Cabinet, especially its legislative functions, were taken care of by the so-called circulating procedure. The presentation of evidence has shown further that from 1937 on at the latest, the major political and military decisions were made exclusively by Adolf Hitler alone without the members of the Reich Cabinet having been informed of them in advance. After Hitler's appointment as Reich Chancellor, and surely much earlier than 1937, the Reich Cabinet as an institution probably made no definite decision on politically or militarily important questions. It would be completely misleading to assume that the members of the Reich Cabinet in the National Socialist State had a position even approximately like the position which is a matter of course in a State governed by parliamentarian principles. Just as little as there was a common plan of conspiracy among the men sitting in the dock, so was there as little of the kind within the Reich Cabinet.

It is even true that forces with divergent aims became apparent within the Reich Cabinet, which in itself would have made it impossible to agree on a common plan, such as was expressed in the Indictment. It is sufficient here to point to the testimony of the witness Lammers, and to the fact that Adolf Hitler, from whom such facts could not remain hidden, finally issued a prohibition to the effect that the individual Reich Ministers no longer had the right to assemble for conferences on their own motion.

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