have already -so to speak by implication- dealt with the question as to who was responsible for the ultimate decisions- for this state's decisions regarding questions of existence, especially for the decision about war and peace..... already mentioned above, "probably the Fuehrer alone". We must say :Quite definitely alone. 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 Reich stag or by a vote of the German people. Neither the Reich President, i.e. the Head of the State, nor the Reich Cabinet had to 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- as to give the Reich legislature no option in its decision; a problem which, as far as I know is well-known, has become a real one in the United States with regard to the relationship of the president to Congress and has, therefore, been seriously discussed, while it was not a real 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 Wiemar Democracy could have tolerated as little as 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 thought fit. The military means of power must be at the disposal of the political leaders of a state. Otherwise they are not means of power at all. This 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 amongst the nations. which laid particular emphasis on legal forms, Hitler replaced all the highest authorities of the Weimar period, and combined all the highest competences in his own person. His orders were law.
solely competent for the decision about war and peace, has, in practice, no - or not the soul-authority. If however, both the solo legal competence and the sole authority in actual practice have ever been coincidental in any state such was the case in Hitelr Germany. And if, in any question, Hitler even even accepted the advice of a third party, such was not the case in the question of war or peace. He was the arbiter of war and peace between the Reich and ether nations.
In conclusion: would be something completely new legally 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. presuppose other laws than those in force when the actions laid before this ned with that - I S T H U S P O S E D I N I T S F U L L C O M P L E X IT Y. 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 4 July M LJG 11-1a now and 1:00 o'clock in dealing with that letter if you have it now, and possibly Dr. Exner also has his letter.
DR. SAUTER (Counsel for defendant Funk): 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. letter to the President of the International Military Tribunal, which is signed by Defense Counsel Dr. Sauter as well as by thee defendant Walter Funk personally. I shall read the text of the letter:
"Re.: P enal 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 Reichsfuehrer 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 she witness Emil Puhl is correct, and, after some consideration, the defendant Funk believed that he could remember himself that it was he, Funk, to whom Reichsfuehrer 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.
4 July M LJG 11-2a "I bring 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 co-signing this letter."
Then there are the two signatures, Walter Funk and Dr. Sauter. That is the contents 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 that you can read?
DR. 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 an sorry; at the moment I am not in a position to fulfill your request.
THE PRESIDENT: You probably will have it at 2:00 o'clock.
(A recess was taken until 1400 hours.)
(The Tribunal reconvened at 1400 Hours)
4 July A LJG 13-1 AFTERNOON SESSION
DR. EXNER: Mr. President, I shall read the letter dated 22 June 1946, sent to the International Military Tribunal:
"Mr. President: the British Prosecution presented the Defendant Jodl Document C 139, obviously thinking that the document showed evidence of preparatory measures for occupying the Rhineland as early as May 2, 1935."
THE PRESIDENT: I am told that the English is coming through on the Russian line.
(The proceedings suspended temporarily)
THE PRESIDENT: Go on, Dr. Exner.
DR. EXNER: "The defendant Jodl has stated that he had not known the document. After looking through the document, he explained that it is quite obvious from the document that in the West, at any rate, there was no plan for any German action, but that only defensive measures were being expressly talked about. Where it was supposed to be arranged or where it was supposed to take place, he could only guess.
"Defendant Freiherr von Neurath has now informed him that in 1934, during the summer, Mussolini had stationed several divisions at the Brenner Pass in or or to occupy northern Tyrol.
"The defendant Jodl after receiving this information perused the document again, and he now guesses that with this document an operation was meant to be prepared, and that the Italians, in the event of their marching in, should be thrown back across the Brenner. But he knows nothing about this affair.
"The entire matter does not affect the defendant Jodl at all, and for that reason I shall not refer to it during this session. He attaches the greatest importance, however, to the fact that the impression is not created that he intended to conceal anything."
It is signed "Exner" , and now Jodl has signed, also.
THE PRESIDENT: Very well.
Now I call on Dr. Stahmer.
DR. STAHMER: Mr. President, first of all, I should like to remark that I have still to complete the case Katyn.
The case 4 July A LJG 13-2 Katyn has not been incorporated into the book which has been submitted to the Tribunal, because only Monday and the day before yesterday did we collect the evidence.
the book. It is only a brief presentation, and the interpreters will have copies of my document. However, I cannot submit a translation to the Tribunal at this moment, since it was only the day before yesterday that we concluded the hearing of the evidence, and I have not been able to do that.
THE PRESIDENT: Some second voice is coming through on the English line.
(The proceedings suspended temporarily.)
THE PRESIDENT: Go on, Dr. Stahmer.
DR. STAHMER: During the time which I had stated, the case Katyn had not been included. Nevertheless, I hoped that I should be able to finish in the time which I have announced; in fact, I may be even a little quicker.
May it please the Tribunal: this Trial, which is of a historical and political importance, and a significance in shaping new laws and which is of dimensions such as have not been known hitherto in the history of law, these proceedings which concern not only the defendants present in the court, but which are of the greatest importance to the German people, are now passing into a new phase.
The position of the defense in these proceedings is especially difficult; for there is an all too unequal distribution of strength between the prosecution and the defense.
THE PRESIDENT: We will take a recess.
(A recess was taken.) of a huge staff of experienced co-workers, was able to explore all the offices and archives in and outside Germany and to examine witnesses in all territories. So, it was in a position to submit to the Tribunal a tremendous amount of documentary material. fact that, in the Anglo-American procedure on which this trial is based there is a clause missing which is contained in the German criminal procedure according to which the prosecution is also bound to procure and submit evidence, exonerating the accused.
THE PRESIDENT: Dr. Stahmer, let me tell you that the statement you have just made is entirely inaccurate. There is no such thing as an English code of criminal procedure but it is the universal practice for the Prosecution to disclose to the defense any document and any witness who assists the defense and therefore your statement is entirely false and I believe the same practice obtains in the United Sates. difficulties as compared with the Prosecution, that also is entirely inaccurate because I feel certain that the Prosecution in this case have observed the same rules that would have been observed in England and would have disclosed to the Defense any document or any witness over whom they had control who would assist the Defense and there have been various occasions on which the Prosecution had disclosed in this case to the Defense documents which have been supplied to them which appeared to then to help the Defense.
or practically every document has been procured for then after great effort, by the Prosecution and investigations have been made all over Germany and I may say almost all over the world in order to help the Defense in their defense in this case.
DR. STAHMER: Thank you for your instructions, Mr. President. question of the presiding judge as to whether he pleaded guilty or not guilty, declared: "Not guilty in the sense of the indictment." charges made by the Prosecution. of considerable importance for his defense, during his personal examination. He expressed his opinion in detail with regard to political and military happenings and exhaustively described the motives for his actions, and the origin and course of events. matters in all their breadth, as he saw, felt and experienced them, for this, and only this direct personal portrayal can afford good insight into the personal attitude of the accused and made it possible to give a reliable opinion of his personality. This knowledge is absolutely necessary if the Tribunal is to come in a decision, which is not only in harmony with objective law out which also renders the maximum of justice to the individuality of the perpetrator. exhaustively on all particulars - to deal with every question, to which he has already given the requisite explanation. In view of this I shall limit the defense to the following statements: we are in a transitory period of history of the greatest significance. An age is coming to an end which has beenless known for its concept of order than for its concept of liberty.
This striving for liberty released tremendous forces - so gigantic that in the and it was impossible to master them. The tremendous progress this era has unquestionably brought about in scientific and technical spheres we have dearly paid for with the shattering of all human order and the loss of peace in the entire world. So far the profound reasons for such a disastrous development have hardly been discussed in this court. But in order to rightly understand the grave crimes and confusion which are indicted here it is imperative to throw some light on the historical background. National Socialism are to be found in a period far removed from us. He goes back even right to the beginning of the last century. He sees the first step to a leading astray of the German character in Fichtes "Reden an die deutsche Nation".
Fichte preached the doctrine of "Pan-Germanism" he says, insofar as he wanted to see the world planned and organized by others, just as he himself saw it and would have liked it to be shaped. I cannot understand how this should express more than the universal human desire to take part in the shaping of a common destiny. Only the methods of such attempts to participate may, at times, be justly criticized. A Swiss assertion, which also perceives in Fichte the cause of Germany's going astray, seems to me to be clarifying in this respect. It does not, however, accuse him of PanGermanism, that is, of the will to subjugate foreign peoples, but rather reproaches him for having attempted at all, to unite the Germans into one nation. It contends that this was an inadmissible attempt to imitate the French and British, whereas it would have been more suited to the German character to remain a nation made up of different peoples. For only as such could it have continued its historical mission to remain the nucleus of a European federation. Judging by Fichte alone the development is therefore not so easily interpreted. Fichte alone. For his "Reden an die deutsch Nation" was only an answer to the "Ruf an Alle" which the French revolution had sent out into the world, and they were directly provoked by the appearance of Napoleon.
One must go back over the chain of causes and effects to their very beginning. This, the beginning of a national and personal striving for liberty which has characterised the whole of modern times, we find in the Middle Ages. which had typified ancient times was overcome by the conception of one eternal omnipotent Christian church. With this a state order superseded the dynamic forces of the time, an order which according to the doctrine of the church was created by the Lord himself and was therefore "full of "God's grace" (von Gottes Gnaden). It strove to enfold universally all of humanity and to lead to peace and rest in God. It was the teachers of the church in the Middle Ages who first ventured to subject war to the principles of law. Prior to that it was taken as a matter of course or a natural phenomenon, like sickness orbad weather, and was often looked upon as a judgment of God. Men like St. Augustine and Thomas Aquinas opposed this conception and declared that one must differentiate between a just and an unjust war. They did this upon the basis and within the framework of a Christian belief, by which God had entrusted mankind with the fulfilment of a moral world order to bind one and all and which would provide the answer to the question of the righteousness or unrighteousness of a war. the medieval order was shaken, this development into a universal world peace took on the opposite character. Life, formerly inclined towards an orderly peace based upon the state, now turned into a torrent which, as it swept ever faster through the centuries, gradually grow to the present catastrophe. The individual thirsting for freedom dispensed with the shackles of church and class distinction. The State, declaring itself sovereign, violated the universal order of God as represented by the church. Not recognizing any superior power, it began to conquer as much living space (Lebensraum) as it could on this earth, as long as the stronger will of another nation did not impose any natural barriers on it.
Peace hence existed only in the naturally rather unstable equilibrium of powers, obeying only their own laws. International Law, quoted by the prosecution failed because it was incompatible with the dynamic power of this time. It embodies as we know only an attempt to keep alive through secular arguments the aforementioned concept of Christian warfare. One cannot, however, derive justice from nature alone. It knows no other measure than brute force. It, actually, always decided in favour of the stronger. Considered froma metaphysical standpoint, justice can be defined as an independent force, set above natural impulses. Therefore the theory of Grotius necessarily petered out in the 18th century as thinking in a purely wordly sense it could not find a criterion for a just war.
From this time on the search for true justice stirs the world. All socialist theories are only attempts of solving this problem. After having been disappointed by the doctrines of too much liberty, mankind once again seeks security and order. Some wish to return to the Christian truth of God while others want to go forward in order to solve the problem through human intellect eventually. go further backwards and at the same time forward to a self-deification of life in a biological political sense, have been conquered and eliminated. Yet a solution of the problems of world order has hitherto not been found. The victorious powers intend to come close to it, however, by drawing a line between themselves and the vanquished through a common indictment and punishment of the same as criminals. justice and injustice in a legal sense? Insofar as such standards exist by International Law, valid up to now, further statements are not required. That a special court for the trial was created by the Charter of this Tribunal I also do not object to. I must, however, vigorously protest against its use, insofar as it is meant to create a new material law by threatening punishment for crimes which, at the time of their perpetration, at least as far as individuals are concerned, did not carry any punishment.
if the culprit was never aware of it, because at the time he was not threatened with such punishment, and he believed to be able to derive the authorization for his way of acting solely from the political aims pursued? What does a reference to the ethical laws help, if such must be first found again? According to Justice Jackson's opinion, however, the Nazi Government never from the start was the representative of a legitimate state which had pursued the legitimate aims of a member of the international community. Only from such an attitude can the indictment for conspiracy be understood which is to be discussed later. In fact this Indictment is far ahead of its time as is the whole way of argumentation by Justice Jackson. Because internationally recognized standards, outside the positive international law by which the legitimacy of states and of their aims could have been judged did not exist, just as little as an international community as such. Slogans about the legitimacy of one's own and of the illegitimacy of foreign aspirations served only the formation of political fronts just as the efforts to brand political adversaries as disturbers of the peace. In any case they did, indeed, not create law. the conquerors to deal with the conquered as they saw fit. But, said he, non-discriminatory executions or without a final establishment of guilt would be a breach of promise given repeatedly. For that reason he himself proposed judicial proceedings which would have to differ from the ordinary criminal proceeding by not admitting the usual tactics of obstruction and delay by the defendants. But an establishment of guilt should be made, but based on a just and fair trial. If the defendants were the first leaders of a conquered nation which had to answer before the law they were also the first ones to whom the opportunity was given to defend their lives "in the name of justice." for interpretation of the Charter. Because it would not be reasonable that the court were obliged to stand exclusively by the charter without taking into consideration international law recognized hitherto and convictions of others with regard to law.
In that case the judgment would rather become a pure dictate of force to appeal against which "in the name of justice" would make no sense. decrees are justifiable before the conscience, not only formally but also materially. The Charter itself says that nobody may be excused for a violation of its decrees by hiding behind an order of his government or of a superior. In that case it must apply this, its own logic also to itself by allowing the judge to examine the congruence of its prescripts with the general principles of just ways of thought. For a judge, after all, is far more free and independent from the lawmaker than a subaltern from his superior or a subject from his dictator. are so much in opposition to the previous and ordinary state of law, especially as to the fundamental ideas of all rules of law that the court cannot acknowledge them as right or apply them. Practically the most serious problem consists thereby in the decision what should have precedence in the case of conflict, the Charter or the legal maxim "Nulla poena sine lege praevia." rule in this given instant with the highly political charter of the trial. Such a justification, however, cannot possibly be recognized. The political significance of this trial shows itself otherwise by its consequences near and far, but not yet in the very procedure by influencing the legal norms to be applied. A judge should administer law but not deal in politics. He is called upon still less, to rectify mistakes made by the politicians. Punishment, the establishment of which in due time was neglected, may only be decreed by him on the strength of a subsequent law, if he would do this also in other cases, but not only as an exception. to be maintained. By this principle Montesquieu divided the originally united power of the absolute King into legislative, administrative and judiciary. The three different forms of expression of state domination were to have equal rank, to be in equilibrium and so to aid in controlling one another. This system of division of powers characterizes the modern consti tutional state.
In a slightly strained way one may define the field of activities and competency of the three different forms of expression of sovereign authority in stating that the legislature has to deal with the future, administration with the present, and judiciary with the past.
The legislature sets the standards to which life is to conform. From time to time these must be changed and put in accord with the changed way of living. But till then they remain valid. it will be formed, case by case, by the administration. The administration itself is bound by certain norms, but on principle has free play within the lawful bounds of its good judgment so as to be able to respond to the daily changing needs. For it, just as for the law making politicians, the idea of serving a purpose is decisive. but shall decide according to the law. In general, it is not his task to create, but to judge. He has to judge the actions after they were committed and the conditions after they have arisen whether and in how much they corresponded to the standards respectively what juridical consequences they have brought about. Therefore, as a matter of principle his view is directed towards the past. In the life of the state, which is continuously inspired by politicians looking to the future, he is the steadfast counterpole serving as a brake. merely an executive organ. On the contrary he should control the lawmaker by re-examining the laws with regard to their conforming to the constitution. Therein, in any case, according to reason, would belong the examination whether the principle of the division of powers was maintained. Because just as the judge may judge but "de lege latea" and must leave the decisions "do lege forenda" to the lawmaker, the latter is obliged in reverse not to meddle with the former's competency by giving laws with retroactive power.
state is mainly based on its having abandoned the division of power. By putting at the top the political leadership idea (Fuehrerprinzip), it meddled despotically with the competency of the judges. By means of the police, i.e. the administration, it arrested and imprisoned people without judicial warrant of arrest only for reason of political prevention, and even arrested others that had been acquitted by the judge and set free. On the other hand for political reasons, convicted criminals were withdrawn from the hands of justice, Thereby quite naturally, safety and clarity of the law were seriously endangered principle on another occasion, and I then continue: splitting up of law, lay in the fact that the National Socialist State was based on a specific ideology by which the judge was bound. the SwissProfessor of law Hans Fehr Bern already in 1927 wrote in his book. "Law and Reality; insight into the growth and decay of the forms of law" (Einblick in Werden und Vergehen der Rechtsformen"). He says literally:
"Without ideology law floats in a vacuum...Anyone who has no ideology, can not have a sense of right or wrong either"...... Charter is not recognizable. As its signatories stand on very different ideological ground we will have to start out in it, as in the international law valid hitherto, from the liberal idea of freedom of ideology. Therefore the legal thesis "Nulla poena sine lege" should be especially sacred for it. This is also proven by the fact that the Control-Council for Germany, by abolishing the criminal analogy of article 2a of the criminal code, brought the above max back again to all Germans most emphatically. help out. Justice Jackson has called the Charter and the Trials a stop in the direction: "To create a juridical guarantee, that who starts a war, will pay for it in person". The American commentator Walter Lippmann stated elsewhere, that the system of collective security for the prevention of wars had broken down, because nobody was prepared to declare war on the breaker of peace in order to help prevent a war which did not directly affect him.
the disease itself. In consequence of the fiasco of the collective methods the thought to base security in the future upon holding responsible those individual persons accountable for breaking the peace crystallized with the enemies of Germany in the last war. And so it led to the Nurnberg trial. Taking one's starting point from this fact today one could say: During this second world war revolutionary developments have taken place. It has driven humanity beyond the sphere of what has been the modernage until a short time ago: The first but essential steps to create a world state have been made. although one still will doubt its absolute reliability. Justice Jackson himself has expressed doubts whether punishment will be a warning and help prevent breaking the peace in the future. Only one who is certain of Victory will decide to wage a war and so will not seriously consider punishment which will reach him only in the case of defeat. Therefore the educational issue of this trial, to strengthen the sense of justice, seems more important than the effect of deterring, which can also be achieved by warning for the future. The politician will have to learn that the principle of division of power will also have to be observed by him and that he will not find a judge willing to ment his mistake afterwards by punishing on the basis of future laws. The confidence in international jurisdiction, which today still suffers from the suspicion of being easily misused for political purposes, would be raised considerably through such a decree.
Therefore even under the view-point of political usefulness the violation of the sentence "Nulla poena sine lege praevia" could not be justified. On the other hand, however, one must realize that the strenghtening in the belief of the inflexibility of justice as the basic pillar of the tremendous dynamic of political forces, serves peace best. individual considerations presented by the representatives for the defendants. national law could not be imagined without international morals and that a moral code has to precede all claims for freedom by the individual as well as by the nations. These certainly are facts well worth considering. Correctly considered, however, they speak only for my viewpoint that the strenghtening of the sense of justice must not begin by violating it. there could be no belief in justice by not punishing the Chief culprits of Nazi Germany, then obviously he went too far in the enthusiasm of the speech. Justice does not grow out of obtaining at any price satisfaction for the violated sense of justice. Otherwise we should quickly arrive again at the endless chain of horrors, at vendetta. No-- justice demands moderation and consideration of motives and counter-motives. And there the onesided action itself against members of the Axis powers violates the idea of justice. It is impossible to justify it by a direct violation against it, that is, against the, otherwise, commonly prevailing rule: "Nulla poena sine lege praevia". The British Chief prosecutor himself declared the possibility of subsequent legislature one of the most offensive doctrines of the national socialistic legal terminology. With this he meant that the possibility of punishing an act already marked as a crime does not mean a change of the legal situation but only its logical development, and therefore is permissible. I do not at all want to contest the institution of the Tribunal thereby justified by him.
Rather the question arises whether this Tribunal is obliged to punish even though no penal law can be found which threatened the offences with punishment at the time of their committment. The affirmation of this question would go much further than the national socialistic judicial procedure which is rejected so vehemently by the British Chief prosecutor.
Moreover he should be prepared to admit that the Charter woul* have stated clearly and unambiguously, if it did not only presume, but possibly also establish, the basis for the punishableness of acts referred to by it . The passage involved in Paragraph 6 of the charter completely lacks such distinctness. It reads:
"The following acts or any of them are crimes coming within the jurisdiction of the Tribunal." This may be interpreted in the sense of a mere regulation of competence as well as, even though with difficulty, a regulation first establishing punishableness. Therefore, this passage must in any case be interpreted in favour of the defendant according to the established legal principle "in dubio pro reo", The following phrase, "for which there shall be individual responsibility" and the material regulations for punishment quoted in the follow ing paragraphs, present, according to their wording, no reason for doubt as to their interpretations.
However, they contain only modifications for an established punishableness. The tribunal may decide whether or not and to what extent they are compatible with the principle "Nulla poena sine lege praevia". American prosecutor. On one hand he passionately disavows all legal arbitrariness of the Nazis. On the other hand he is not prepared to acquiesce in the punishment of the defendants only for those crimes which were not only considered punishable at the time of being committed but were also actually threatened with punishment. On one hand he does not want executions or punishment without first having accomplished the determination of guilt in a fair manner.
On the other hand he demands a strict application of the Charter even though it contains new law surprising the defendants. On one hand he wants the trial to appear to future generations as the fulfilment of the human yearning for justice. On the other hand, in the face of objections to the Charter, he bluntly presumes upon the power of the victorious, who really could have made short work with the defendants. paragraph.
As far as the political side of this process is concerned I have already stated why it must not exert an influence on the outcome of this trial.
I wish to point out here that a policy which is carried out by the victors on the vainquished and therefore may be charactericed as one of "the weakest resistance", has once before proven to be a failure. extensive as regards time and object. Professor Exner, in his capacity as a University teacher of criminal law, occupied himself in particular with the importance of the legal conception for our process. In order to save time by avoiding a duplicate report, Professor Exner has placed the result of his research at my disposal. In conformity with him I have to present the following regarding this question :
The conception "conspiracy" belongs to the Anglo-American law sphere. There, however, it is not at all uncontested, rather, the opinion is noteworthy as being represented in England that this conception is long since obsolete : "It has been said that in England this law has become entirely disused."
In these proceedings, it is a different point that matters. The concept of "Conspiracy", as used by the Prosecution, is entirely unknown to German law. I would like, therefore, to begin my short legal argument with two questions which give rise to doubts.
1) May a criminal procedure, which is bent on realizing justice, use legal concepts which are and always have been utterly alien to the defendants and to the legal trend of thought of their people ?
2) How would this be consistent with the rule : Nullum crimen sine lege praevia, a principle which the British Chief Prosecutor has acknowledged as a fundamental principle of civilized criminal law jurisdiction ? Can it be honestly stated that already before 1939 not only the initiating of an illegal war was held to be an act punishable individually, but moreover a "Conspiracy" for initiating such wars ? The affirmative answer to this question given by the Prosecution has surprised not Germany only. May I clear up, in this connection, a misunderstanding. It has been said that the national socialist state itself had issued criminal laws ignoring the rule :"Nullum crimen sine lege", so that the defendants had no right to invoke this rule. It is by no means my purpose to defend national socialist criminal law, but honesty compels me to say : this is an error.