why that is and what stops he has taken to shorten his speech?
DR. NELTE: Mr. President, I have sent a letter to the Tribunal today, which I believe has not yet reached you. In that letter I made the request that in the case of the defendant Keitel I should be permitted to exceed the length of time which hasbeen limited to one day for the big cases. When, following a request of the Tribunal, I stated that the time which my final speech would take, I had my manuscript completed. That manuscript would have taken about seven hours. In that form, I have given that manuscript to the Translating Division because it was too late to alter it. I submitted the first part last Wednesday and the second part, in accordance with my promises, I submitted on Saturday morning. day -- that is, five and a half consecutive hours of speech -- would consider th the possible maximum and would not wish to depart from that ruling in any case, not even in the case of defendant Keitel who has been particularly seriously implicated, then I would be forced to eliminate certain passages from the manuscript and to submit then merely in writing. Whether this is a possibility I should again like to leave to the decision of the Tribunal.
THE PRESIDENT: Well, Dr. Nelte, the Tribunal takes note of the fact that when you were asked how long your speech would take, you said, I think, seven hours, Is that right?
DR. NELTE: Yes.
THE PRESIDENT: Well, according to the estimate which has been given to the Tribunal, the speech which you submitted for translation would take about thirteen hours. That is nearly double as long as you yourself said, and it is almost exactly double the length of the speech that has been submitted for the defendant Ribbentrop, whose case is almost as extensive, if not quite as extensive, and it appears to the Tribunal to be out of all reason to put in a speech which will probably take nearly double the time that you yourself stated. The speech you put in is more then double the length of the speech that has been put in on behalf of the defendant Goering.
DR. NELTE: Naturally, I am unable to know the point of view of Counsel for Reich Marshal Goering or Foreign Minister von Ribbentrop. I can not know the principles that guided them. I can only be directed by my conscience and sense of duty.
THE PRESIDENT: Perhaps that is a matter of comparison, it is true, but you said seven hours yourself, and you now put in a speech which will probably take thirteen.
DR. NELTE: I believe, Mr. President, that I shall make that speech in seven hours, if I have seven hours for speaking.
THE PRESIDENT: Well, the Tribunal has given this matter a very full consideration, as you are aware, and they have said that every speech must be made in one day, and that will take up some considerable time for the whole of the defendants to make their speeches.
DR. NELTE: Mr. President, I accept a decision. If I am confined to one day, then I shall have to leave but certain parts from my manuscript, but in that case, may I make the request that the remainder be taken cognizance of by the Tribunal, because everything that I have included in my manuscript is the minimum of what I consider necessary in so large a case.
THE PRESIDENT: Dr. Nelte, we will consider that application for you to be allowed to put in the other passages in your speech, and we will let Defendants' Counsel know what our decision is upon that.
Dr. Siemers, the Tribunal has now received a full report showing the immense trouble taken by the Secretariat to find or try to find the witness Schulze, Otto Schulze, for you since you first asked for him in February of this year, and the Tribunal would like to know what steps you have taken in the meantime to try and find him.
DR. SIEMERS: I believe, Mr. President, that there was no need to find the witness because, actually, it was known that he was living in Hamburg, Blankenese, and because, in my opinion, he is still living there. That is the address which I have repeatedly given the General Secretariat.
THE PRESIDENT: Well, you knew what the General Secretary's office were doing about the matter. You knew they were unable to find him at the address. You knew that they had sent the interrogatories to Washington because they were told he had been taken over there, and we are told that you have been in Hamburg yourself.
DR. SIEMERS: That the interrogatory was sent to Hamburg is something which I have known only since last Friday after my return from Hamburg.
I personally did not anticipate that such a mistake or such a misunderstanding could arise. Unfortunately, I do not know how it has arisen. Far be it from me to make any kind of accusation. I have merely requested that if the document were received, then the Tribunal would agree to receive it in evidence later. Unfortunately, I can not submit it today. I have immediately informed the General Secretariat of the address again, and I do not know any more than that address in Hamburg either. In my opinion, Admiral Schulze is not in captivity, and it is possible that during my absence some misunderstanding has occurred, but I myself have only heard that last Friday.
THE PRESIDENT: Well, I can not understand why, during all these months that you have been here and have had full opportunity of seeing the General Secretary and have received all the assistance which you and all the other Defendants' Counsel have received from the General Secretariat, that you should not have helped the General Secretary better to find this witness. That is all.
(A recess was taken until 4 July 1946, at 1000 hours.)
THE PRESIDENT: Dr. Sauter.
DR. SAUTER (Counsel for the defendant Funk) : If you please, sir.
THE PRESIDENT: The Tribunal has received your letter of the 17th of June of this year signed by the defendant Walter Funk.
DR. SAUTER: Yes.
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: Yes; but, Mr. President, at the moment I do not have the letter with me.
THE PRESIDENT: The Tribunal would wish you to do it at two o'clock, then, to read that letter.
DR. SAUTER: Very well, Mr. President. Thank you very much.
THE PRESIDENT: The same observation applies to Dr. Exner's letter of the 23rd of 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 will 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 probelm 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 th 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 realized by my speech. 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. the truth, knowing full well that its goal can never be completely attained and that its path is therefore without end. at my disposal the documents of a decisive nature and very important literature. Without this chivalrous assistance, it would not have been possible, under the present conditions in Germany, to complete my work. This literature accessible to me was published predominantly in the United States. Knowing the vast French and English technical 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 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. literature published in the former German sphere of control. In this way even the semblance of a pro dome line of argumentation will be avoided.
and, at the same time, owing to the abundance and difficulty 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 argumentation for the listener. 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 today, tomorrow and thereafter. of the peace between states. 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 this is so: Why then make any statements at all here on the great fundamental legal questions? of his great address to examine the relationship of the Charter, where our question is concerned, to the international public law at present valid. He justified the necessity of his arguments as follows: It is the task of this Tribunal to serve humanity, and this task could only be fulfilled by the trial 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 International Law at present valid. tions of the Charter may have created now laws and consequently laws with retroactive force. historical research students work. 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.
that the decision as to right and wrong depends, or may depend, upon it, particularly if the Charter is considered legally unassail able.
Let us assume that it were thus: The Charter does not formulate criminal law which is already valid, but creates now and, therefore, retroactive criminal law. What does this signify for the verdict? Must this not be important for the question of guilt? 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 before himself nor before others. 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 wrong fulness of his commissions and omissions. thought on penal law, the fact that a person was not aware of doing wrong is a point which the Tribunal must not overlook. the Charter is ex post facto penal law does not present any difficulties if the stipulations of the Charter are unequivocal and the proscriptions of International Law to date are uncontested. tions before us, or if the rules of International Law are the subject of controversy?
Let us take the first: A stipulation of the Charter is ambiguous and therefore needs interpreting.
According to one interpret-
ation 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 or the legal position to date : It is not certain whether we have not got an ex post facto law before us. wrongfulness of his behaviour. trial. fundamentally different. 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 is the core of the world peace order which still continues to be equally valid today. War which is prohibits is a punishable violation of law within and towards the community of nations.
2) The indictment of individuals for breach of the peace is, indeed, something new, but not only morally demanded, but also long overdue in the course of legal developments; in fact it is simply the logical consequence of the new legal position. The Charter only appears to create new law.
And if I understood the British Chief Prosecutor correctly, he asserts : situation, 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 triving for, namely :
The powers should renounce war as an instrument of national policy and reservations.
For otherwise the object desired could not be attained :
To abolish war as an institution, i.a. as an institution of the two statesmen, from whose initiative the pact, which in Germany is often called the pact to outlaw war (Kriegsaechtungspakt), springs, declared when it was signed in (9) 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 legality. Branded henceforth as illegal, it is truly outlawed by agreement......." meant a change of the world-order at its very roots, if only all or almost all the nations of 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: 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 Franco, the practical and theoretical proponents of the idea of preventing (10) war.
the old tracks after the first World War after a shock from which they recovered remarkably quickly. 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 (12) 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 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 and organised union of States. These aims can only be achieved if the most frequent casuses 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 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 the 16th July 1937, indicated in unusually strong words that an alteration of unjust, imposed treaties was an indispensable precondition for real world peace, they followed one of the fundamental views of the great American president.
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: League of Nations. I shall show this. the rules of classic international law concerning debellatio. I shall explain this.
The United States declared their strict neutrality. I shall explain the import of this declaration.
The system of collective security has been much disputed over. 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 cur age; and the collapse may have had various causes; it is certain that the above-mentioned throe 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 the 7 September 1939 the British Foreign Office told the SecretaryGeneral of the League of Nations: to appear before the Permanent International Court of Justice at the Hague whenever an action is brought against Great Britain, i.e. also in the case of actions which ether states night bring on account of conduct by which Great Britain had, in the opinion of the plaintiff, violated international law during a war. The British government bad accepted this regulation because it had relied on the machinery of collective security created by the League of Nations Covenant and the Pact of Paris functioning: because, if it did function - and as England would of course not conduct any forbidden wars and her opponent would on the contrary be the aggressor - a collision between England and those states that were faithful to the security machinery could not possibly be caused by the actions of British seapower. However the British government had been disappointed in what it relied on: 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." conclusions it drew. It should not be forgotten that the British Premier, Neville Chamberlain, had already proclaimed on the 22 February 1938 in the House of Commons, i.e. before the so-called Austrian Anschluss, the complete inefficiency of the system of collective security. He said:
"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 an right, as I an 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 expressed it later in the House of Commons. 2) In view of the correct conclusions drawn by the British government in their Note of 7 September 1939 to the League of Nations, it is no wonder if 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, the government of Moscow starts from the conception of the debellatio of Poland, i.e. the abolition of Poland's government and armed forces. There is no mention made of the Pact of Paris or the League of Nations Covenant. The Soviet Union notes the abolition of the Polish state machinery by means of war, and draws from this fact the conclusions which seem right to her, agreeing with the Reich government that the new order of things is exclusively a matter for the two powers. of 1939/1930, the Soviet Union took up its stand on classic international law. It disregarded the reactions of the League of Nations, when, without even considering the application of the machinery of sanctions and only appearing to apply an article of the Covenant which was intended quite differently, it resolve that the Soviet Union had, as an aggressor, excluded itself from the League. The report of the Swiss Federal Council of the 30 January 1940 to the Federal Assembly tries to save the fact of the League which has been excluded from political realities. 3) 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 ether hand. Everyone in the United States was bound to obey the neutrality regulations most strictly. States that Europe, and particularly Great Britain and France, saw the main value of the pact outlawing war in the fact that the United States would take action in case of a breach of the pact. The British Foreign Minister stated this on 30 August 1928, i.e. four weeks previous to the signing of the pact.
During the deliberations of the American Senate on the ratification of the pact, Senator Hoses particularly drew attention to this. Senator Borah affirmed at the time that it was completely impossible to imagine that the United States would calmly stand by. After the discredited failures of the policy of collective security in the case of Manchuria and Abyssinia the world had understood the now famous "quarantine" speech of President Franklin ROOSEVELT of 5 October 1937 and the "Stop Hitler": warnings of the sane President before and after "Munich" as an announcement 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. blow for the system. The Washington government could reject such a reproach as unjustified. For the system had already been dead for years, in so far as one believes at all that it was ever actually alive. But many did not see the fact that it was not alive at the moment, until the blinding light of the American declaration of neutrality foil upon it. about the various experiments which had been tried since the first World War to replace the "anarchic world order" of classic International Law by a better, a rea, order of peace; i.e. 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 not forbidden by law. These experiments had, in the opinion of the major powers of the time, collapsed. they used their full strength. For the proponents of the materialistic conception of history this was a second phase in a process developing according to inexorable laws, in which history ignored diplomatic and juridical formulas with supreme indifference.
For the majority of the international lawyers of the world did state: In the general international law at present valid there is no distinction between forbidden and not forbidden wars.
Hans KELSEN demonstrated this in 1942 in his paper "Law and Peace in International Relations" which he wrote after a careful research into the literature. In this he himself belongs to the minority who concede a legal distinction been justified and unjustified wars. His statement therefore carries all the more weight.
But now we mast ask: Are we right in speaking of the collapse of the system of collective security at all? This presupposes that such a system at on time existed.
Can this really be asserted ? 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. tragedy from which we all suffered so much, we who rejoiced when the pact was concluded and later, after a first period of depression, greeted the Stimson Doctrine as a long overdue step absolutely essential for the achievement of real peace, and as an encouraging omen of fresh progress. 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 gone on the rocks. Kellog now wanted to get over all the difficulties which are actually essential parts of the problem, and jerk the world out of its deadlock by taking action without worrying much about theories. The published treaty with its two articles, the renunciation of war and the obligation of peaceful settlement, seemed to fulfil the longings of a humanity which wanted to see at last the act which would liberate it. inherent in the problem, and no regulations made by any legislator can ever eliminate them completely. For even if one disposed of unambiguous criterions, who among us fallible human beings would have the authority to give a decision in case of dispute ? defence. This holds both for the so-called political concept, which is in a way the natural one, and for the legal concept or concepts of aggression and defence. implicitly by the French Government in the preliminary negotiations for the pact, and this with the full right of one who knows Europe and its very old historical legacy in the way the United States Government knows America and its quite different history. Even if somebody were capable of jumping over his won shadow, the shadow cast by European history is so much longer.
nagotiations, with all the definitions, interpretations, qualifications and reservations, it became manifest to what an extent the opinions of the government's differed from one another despite one and the same wording. One saw the Soviet Governments open -even bitter- criticism of the refusal of the Western Powers to disarm and thus create the essential precondition for an effective policy of peace, further of the vagueness of the treaty but especially of the famous English reservation of a free hand in certain regions of the world, the reservation which has often been called the British Monroe Doctrine or the Chamberlain Doctrine, and one knew that in reality there existed only formal agreement behind the signatures and that no two powers understood exactly the same thing by the treaty. Only on one thing did complete agreement exist : War of self defence is permitted as an unalienable right of all states; without this right, sovereignty does not exist; and every state is alone judge of whether in a given case it is waging a war of self-defence. nong the question of whether its decisions on ultimate questions of existence were justified or not. tiations, in his Note of the 25 June 1928 :
".....The right of self-defence .... 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-defence.
What was the use of such a treaty anyway.? of the discussions in the American Senate. The ratification was, it is true, passed with 85 votes against one, with 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 the leading world power ideologically and as far as the initiative was concerned.
because of their profound seriousness and loftiness shown -- and several Senators expressly said so- that the opinions of the Senators oscillated between two poles which were worlds apart. For some the treaty really meant a turning-point; to others it appeared worthless, or, at best, a feeble or friendly gesture, a popular slogan, a sort of international kiss, to still others a fertile soil for all the wars of the future, a gigantic piece of hypocrisy even the legalisation of war or of British world control, or the guaranteeing of the unjust status quo of Versailles for France and Great Britain. Some senators criticized the complete vagueness of the stipulation. of the treaty even more sharply than the Russian Note. And if one took Kellogg's declaration about the right of self-defence, which, according to the will of the signatory states, was an integral part of the treaty, literally : what kind of war was then forbidden at all ? Sarcastic and ironic words were used. it stood 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 monster of "undeclared war". progress was blocked, and those who criticized the League of Nations, Germans and non-Germans, because it did more harm than good to the will for progress, had all rejoiced for nothing at the end of August 1928. The decisive step had not been taken. indispensable if a guarantee of peace is really to be created, the one thing that in the unanimous opinion of all who reckon with human beings as they really are is necessary, was not tackled at all : against the will of the possessor, change conditions that have become intolerable, in order to provide life with the safety-valve it must have if it is to avoid an explosion.