I only mention that when addressing this speech to the Commanders-in-Chief and the then Minister of Foreign Affairs, Hitler had a chronological plan in view which reveals no conformity whatever with the subsequent events. In these circumstances the existence of a determined and well-outlined plan by Hitler himself even seems very unlikely. Only one conclusion can, with certainty, be drawn from the contents of this document: namely, that until 5 November 1937 Hitler himself only thought of on amicable settlement of the territorial problems raised by the Versailles Treaty. For this reason, therefore, there can have been no question of a common plan aiming at the launching of a war of aggression -- at least, up to this time.
This document, however, is still worthy of notice for another reason: The report begins with the Fuehrer's assertion "that the subject of today's conference is of such importance that its discussion in other states should belong to the Forum of the Government Cabinet. He (The Fuehrer) however, considering the importance of the matter, refrained from making it the subject of discussion in a full session of the Reich Cabinet". First of all, it can be left undecided in how far other questions from 1937 on were still dealt with by the Reich Cabinet in Cabinet sessions, or in the so-called circulation procedure; in the administrative procedure or in the legislative way. The conclusion can, however, be drawn with certainty by reason of the total outcome of the presentation of evidence and in particular by reason of witness Dr. Lammers' statements and other witnesses, but also from a great number of documents submitted by the Prosecution itself that at the latest, from 5 November 1937 on, all problems concerning the question of war and peace were no longer dealt with by the Government as State Authority, nor by another larger circle of collaborators remaining almost the same, but exclusively by Adolf Hitler himself.
In all probability this situation already existed in the year 1933. of several defendants in the witness box who, for example, were informed of the reoccupation of the demilitarized zone of the Rhineland in the same way as any other citizen, i.e., by means of the press and radio. sions were taken by Adolf Hitler alone after 5 November 1937, and particularly after the so-called Fritsch crisis and the change of the Reich War Ministry into the High Commandof the Wehrmacht which it involved. According to witness Dr. Lammers's statements, general conferences between the Reich Government, the Supreme Party Directorate and the Generals never took place According to the statement of this witness and others, it was rather that a closer connection never existed between these three institutions. Indeed, not a single one of the documents submitted by the Prosecution reveals anything which might cause us to admit the existence of an independent collaboration between the Reich Government, the Surpeme Party Directorate and the Reich War Ministry or afterwards the High Command of the Whermacht and the Commanders-in-Chief of the Wehrmacht Branches and their Chiefs of Staff. On the contrary : If a positive conclusion can really be drawn from the presentation of evidence, it is that the power was concentrated exclusively in the hands of Adolf Hitler, that the Reich Government, the Supreme Party Directorate and the Wehrmacht received their orders and directives only from him; that it was Hitler's own policy to prevent a working and independent combination of these institutions. or military nature, only those offices were included which had directly to do with the task to be carried out. It is clear from all the documents submitted by the Prosecution that, as a rule, at the conferences presided over by Hitler, there was no question of conferences as is customary in parliamenttary Democracies, but they were essentially only concerned with the issuing of orders. tion to Adolf Hitler made by nearly all the defendants ;
nor is it necessary to define an attitude towards the statements on the attitude assumed b a whole series of other witnesses regarding Adolf Hitler's position in the German Governmental system. One thing can be said with certainty : At the latest, from 5 November 1937, on, Hitler's position was so commanding and his treatment of all decisive political and military questions so free of doubt that for this reason alone, there could be no grounds left for the acceptance of a common plan.
The defendant Rudolf Hess, though the Fuehrer's Deputy and the Highest political leader for Party matters, did not contribute to nor take part in any of the conferences or any other important political or military decisions characterized by the Prosecution as being essential to prove the existence of a common plan, just as little as he contributed to or took part in the conference of the Fuehrer in the Reich Chancellory on 5 November 1937 (USA 25 The same holds good, for example, for the next exhibit USA 26 (338 PS) submitted by the Prosecution.
This is the case of the most important case "Gruen" Czechoslovakia. Without having to enter any further into the details of this document, it can be said without more ado that it deals only with what is entirely the work of the General Staff, which was originally intended as a draft, and afterwards elaborated into a real operational plan. This operational plan was not put into action, the documents referring to case Grune, on the contrary, concluding with direction No. 1 of the Fuehrer and Supreme Commander of the Wehrmacht, which refers to the occupation of the Sudeten German areas separated from Cezchoslovakia by virtue of the Munich Agreement f 29 September 1938. In these circumstances, it is superfluous to deal further with the letter of the Chief of the High Command of the Wehrmacht to the Fuehrer's Deputy of 27 September 1938, which is also contained in the documents for the Gruen case and refers to the carrying out of mobilization measures which were to be effected without the issuing of a mobilization order or a corresponding code word. 14301 same way for Document USA 27 (L-79). This is another so-called key document having as subject the instruction of the Commanders-in-Chief of the Wehrmacht Branches and the Chiefs of the General Staff by the Fuehrer in the new Reich Chancellory on 23 May 1939.
Without intending to enter into the importance or the value of this document as evidence, the Fuehrer's speech closed with the order to set up a small Reserach Staff in the High Command of the Wehrmacht; this document shows clearly that no common plan in the shape asserted by the Prosecution can have existed, especially not between the defendants now facing their trial. Not a single Minister or official of civil administration took part in this conference at the fuehrer's Headquarters --which in reality was not a conference but an insturction and issuance of orders. refer to one and the same subject, namely to Adolf Hitler's speech addressed to the Commanders-in-Chief of the Wehrmacht on 22 August 1939. The following documents are in question : USA 38 (L-3), USA 29 (PS 798) and USA 30 (PS 1014). I will not enter any further into the value of these documents as evidence, although it is obvious that these cannot be equivalent documents, and though it is quite clear that a corresponding reproduction to some extent of Adolf Hitler's expositions is out of the question. None of these document reveal their authorship. Moreover, the statements differ considerably one from another as far as volume and contents are concerned. tler's statements. And here again the conclusion is most worthy of notice, a conclusion Which throws some light upon the situation at that time and defines the event Which made it possible for Hitler to make such a speech to the Commanders-in-Chief. Quote : "I was convinced that Stalin would never accept the English offer. Russia is not interested in the maintenance of Poland and then Stalin knows it means the end of his regime, it being immaterial whether his soldiers come off victorious or vanquished. Litvinow's solution was decisive. I gradually changed Russia's attitude in this matter. In connection with the commercial treaty we engaged in political talks. Proposal for a non-aggression pact. Then came a general proposition from Russia Four days ago I took a special step which caused Russia to signify her willingness to conclude it, yesterday. The personal contact with Stalin is established. Von Ribbentrop will conclude the Treaty the day after tomorrow. Poland is now in the position I wanted her in ....." "End of quotation. Besides the Commanders-in-Chief, no minister or leader of the Party, specifically not the defendant Rudolf Hess, attended this speech of the Fuehrer.
The same holds good for Document 789-PS (USA 23). The subject of this document is a discussion with the Fuehrer on November 23 rd 1939. It appears from this document that here again only the commanders-in-chief of the Wehrmacht were assembled to receive the Fuehrer's directions for the imminent operations in the West.
The next key document is Exhibit USA 31 namely, directive No. 21 for the Barbarossa case. This was a question of a directive by the Fuehrer and Supreme Commander of the Wehrmacht which had an exclusively military character and was intended only for the there of the Wehrmacht. Any participation by civilian administrative offices or of the Party, even in the person of the highest political leader, namely, the defendant Rudolf Hess, is excluded from the frist by the nature of this directive.
It appears also from document USA 32 (2718 PS) the subject of which is a file memo on the result of a conference on 2 May 1941 about the Barbarossa case, that neither the deputy of the Fuehrer nor any other political leader took part in this conference.
The last so-called key document to discuss is USA 33 (1881 PS) an account by Ambassador Schmidt of the conversation between the fuehrer and the Japanese Foreign Minister Matsuoka in Berlin on April 4th 1941. By the very nature of this conference there could be as a matter of course, no question of any participation in it by the defendant Rudolf Hess or by any other political leader of the party. However, something else appears from this document namely, the fact that it is not only false to talk about a common plan within Germany aiming at a war of aggression but, even more that this, that no kind of close political or military cooperation existed between the so called Axis powers, in any case as far as the relations between Germany and Japan are concerned. key document which the prosecution itself has characterized as particularly relevant as to the existence of a so-called common plan ? Without wanting to express a view as to the material relevance of these documents, in any case it is established by these notes that the defendant Hess was not present at any of these conferences or when these orders were issued.
If, in appraising this circumstance, one considers the further fact that the defendant Rudolf Hess was the Fuehrer's deputy and therefore the highest political leader, and that furthermore, after September 1st, 1939, he was designated as the Fuehrer's successor after the defendant Hermann Grering, the there would not seem to be in fact any place for the assumption of a common plan in the form asserted by the prosecution. of the United States Army to the Secretary of War for the period from July 1st 1943, to June 30th 1945. I quote : "The proofs at hand show that Hitler's original intention was to create a Greater German Reich that would dominate Europe by absorbing the Germanic peoples in the countries bordering on the German Reich and by strengthening these new boundaries. for the achievement of this aim Hitler pursued a policy of opportunism by which he succeeded in occupying the Rhineland, Austria and Czechoslovakia without military resistance. "No proof has yet been found that the German High Command had an over-all strategic plan. The High Command did fundamentally approve Hitler's policy, but his impetuous strategy outran Germany's military capacities and finally led to Germany's defeat. The history of the German high command since 1938 is full of constant personal conflicts in which Hitler's personal orders increasingly prevailed against military judgment. The first clash occurred in the year 1933 and ended in the mismissal of von Blomberg, von Fritsch and Beck, and in the elimination of the last important conservative influence on German foreign policy, "The campaign in Poland, France, Norway and the Netherlands resulted in serious dissensions between Hitler and the generals, with regard to details in the execution of the strategic plans.
In every case, the general staff favored an orthodox form for the offensive, whereas Hitler was for an unorthodox attack, the objectives of which lay deep in enemy territory. In every case, Hitler's idea prevailed and the really amazing success of each of these successive campaigns raised Hitler's prestige to a point where one no longer dared to oppose his views. His military self-confidence became boundless after the victory in France, and henceforth he began to criticise and disparage his generals' way of thinking even in the presence of junior officers. So the result was that no opposition was brought forward by the general staff when Hitler made his fateful decision to advance against the danger threatening in the east.
"By Italy's entrance into the war, Mussolini intended to realize his strategic plans for the expansion of his empire under the cover of the German military successes. Field Marshal Keitel states that the Italian declaration of war was in contradiction with the declarations made to Germany. Both Keitel and Jodl agree that it was not desired. From the beginning Italy was nothing but a burden for the German war potential. Because of her dependence for oil and coal, Italy was a constant source of friction in the economic field. Mussolini's one-sided campaign against Greece and his attack on Egypt forced the Germans into the Balkan campaign, as well as into the African campaign and led to an overstraining of the German forces which became one of the chief factors of the German defeat.
"Moreover, there is no evidence whatsoever of a strategic planning between Germany and Japan. The German general staff recognized the fact that Japan was obligated by her neutrality pact with Russia, but hoped that Japan would tie up strong, British and American land, sea and air forces in the Far East . . . . " on the witness stand are essentially the same as the statements of the American chief of staff, so that further details on this point are superfluous. It may be considered as proven that not once did a complete agreement exist among the most intimate circle of Adolf Hitler's associates on the measures to be taken in the political and military field, whereby, first of all, the constitutionally established relationship of rank between the officers of the armed forces and the head of the state and supreme commander need not be considered.
One sees: that the existence of a common plan aiming at war cannot be accepted even in the case of that group of persons for whom it first seemed most likely. to be the appropriation of the territories which Germany had lost as a result of the World War of 1914-1918. The preamble to the Treaty of Versailles provides for the possibility of a revision of the Treaty. Going beyond this, the demand for the reunion of Austria to the German Reich and the annexation of the Sudeten German regions cannot in itself be concluded to rest on the existence of a plan which was to have been realized at the proper moment by the use of violence or by way of war. As a matter of fact, by a disregard of the right of self-determination of nations, these territories had already been prevented, in the year 1919 from annexing themselves to the German Reich. On this question I can refer to the statements I made at the beginning. Actually, the annexation of Austria took place -- this can perhaps be said, as a result of the presentation of evidence --under circumstances which cannot be described as warlike and which permit the conclusion that the greater part of the Austrian population approved the annexation. Concerning the Sudeten-German question, it suffices here to refer to the Munich agreement between Germany, Great Britain, France and Italy by which the reunion of the Sudeten-Germans with the Reich was settled. annexation of additional territories on the European continent which should serve the conspirators as "Lebensraum." The indictment is very unclear in this point and lacks every substance. But in fact the question of the so-called "Lebensraum" is a problem which is completely independent of the National Socialist ideology and is determined bythe size of the area and number of inhabitants. Every German Government had to and must deal with this question. If any argumentby Hitler found a lasting response in the German people, it was the demand made by him for an appropriate share of the German people in the material wealth of the world.
This demand appears to be all the more justified, as the proportion between the size of the area and the number of inhabitants was more unfavorable for the German people than for any other people. most important sources of raw materials are distributed and that certain raw material are completely monopolized. It is certain that the bitterness about the unjust distribution of the material wealth of the world had to increase in the German people, as not only every reasonable revision was rejected, but moreover it was said by the opposite side in an unmistakable manner that the nations were divided into two classes, namely the "haves" and the "have-nots." In fact, this classification could be felt as nothing else than ridicule. Moreover, even alter 1933 there was no unanimous opinion about the possible solutions concerning the removal of the difficulties resulting from the need for space. So as, for instance, the defendant Rudolf Hess belonged precisely to those who wanted to solve the problem of "Lebensraum" by the acquisition of colonies if possible. For instance, in a big speech in Stettin, on 21 March 1936: "The natural way to make more food available for the people of Germany, to improve our living standard, is to supplement it by having colonies. Therefore, the Fuehrer by stating his willingness to return to the League of Nations, connected with this the expectation that the question of colonies would be submitted to examination. The Fuehrer knows, that a people without a sufficient area, without a sufficient food basis, a hungry people must in the long run become a center of unrest because of its instinct of self-preservation against which the most ingenious statesman is powerless. For hunger is a natural instance which cannot be subdued either by warnings or by others. Our desire for colonies is therefore only the desire for a pacification of Europe for a long time, and therefore the question of the allocation of colonies to Germany is part of the Fuehrer's big proposal of pacification...." of the world which contradicts all economic reason and the political tensions which shake the peace of the world again and again, cannot simply be overlooked. which may be considered as actually established: As I have already stated, article 6, paragraph 3, of the Statute is not the standardization of an own and independent state of criminality, but the expansion of the criminal responsibility of the leaders instigators, and participants who have taken part in the drafting or in the execution of a common plan for the committing of a crime mentioned in paragraph 2. According to the mentioned regulation, these persons are to be responsible not only for the acts which they themselves have committed, but they also are to take upon themselves the penal consequences for all acts which were committed by any person in the execution of such a plan.
the peace is defined as follows: "The planning, the preparation, the initiation, or tie execution of a war of aggression or of a war which violates international treaties; the conclusion of agreements or the giving of assurances, or the participation in a common plan or in a conspiracy for the execution of one of the above-mentioned acts." that the criminal responsibility of the participant in the draft of a common plan is limited to acts which "have been committed by any person in execution of such a plan", the crime against the peace is according to article 6, paragraph 2a, of the Statute already completed with the "conclusion of agreements or the giving of assurances or the participation in a common plan or in a conspiracy for the execution of a plan which has as its aim the preparation or initiating or execution of a war of aggression." In contrast to article 6, paragraph 3, it is here not necessary that an act of execution is actually committed.
I do not intend now to deal with the question more specifically whether the war as such and especially the start of a war of aggression was a crime according to international law valid at the time of one day of the outbreak of war, on 1 September 1939.
This question has already been discussed in the opening speech of the defense. This examination of the legal side of this question has shown that neither the League of Nations agreement nor the Briand-Kellogg Pact contain anything which would allow the conclusion that the starting of a war was a criminal and therefore punishable offense. Valid International Law knew neither a criminal responsibility of the state as a body corporate and even less a criminal responsibility of theagencies of the state, such as the head of the state, the members of the government, the military commanders, the economic leaders, etc. international law had to be traced back. It already was correctly pointed out that the idea of sovereignty in the refusal of the greatpowers in particular to relinquish some of these rights of sovereignty in the interest of a better super-national organization, also were a reason for the unsatisfactory status of the international law especially in this question. In connection with it there is another fact which does not seem to be less important to me, namely that it was not possible until now to create an effective organization and a procedure which would guarantee a real satisfaction of the justified claims of the peoples for a proper participation in the material goods of the world, and which would also in other respects take care of a just settlement of the conflicting interests. can hardly be any doubt that a crime against the peace, as it has found its factual definition in article 6, paragraph 2a, of the statute, does not exist. This section of article 6 of the statute does not have a sufficient basis in existinginternational law.
DR. SEIDL: I omit the following important statements as well as the following statements concerning the secret German-Russian treaty of 23 August 1939, which deals with the jurisdiction of the Tribunal. The Tribunal has to consider officially whether the jurisdiction still exists concerning this this secret treaty.
I continue on page 63. Herr President, I am in a difficult position, as by omitting these statements on pages 59 to 62, an incorrect picture would be created, as my real statements concerning this secret treaty could be misunderstood, also its legal consequences.
I therefore ask the Tribunal to decide.
THE PRESIDENT: The Tribunal has fully considered this matter and does not desire to hear your point.
DR. SEIDL: Moreover, the following is to be said about Article 6, Paragraph 3 of theCharter: in Article 6, Paragraph 3, area typical institution of Anglo-American law. The Continental-European law does not know such a state of criminality. But there cannot be any doubt that international penal law, insofar as there exists any in the restricted and actual sense, and if one does not understand in it the standards which are to be observed in the application of national or foreign law, also does not know the concept of conspiracy as a criminal state of facts. and the concordance of the Charter with the same, which is to be put to test. The issue is rather also the answering of the following question: discussi ons prior to the trial concerning the legal bases of the trial, two entirely contradictory arguments were introduced. While some argued that the Charter was a complete expression of the prevailing international law and was in agreement with the common legal conviction of all members of the international legal community, the others asserted that it was one of the main tasks of the International Military Tribunal now being instituted to develop international law further. This latter conception for instance, stands out clearly in the report of the American Chief Prosecutor to the president of the United States of 7 June 1945. Here it is stated verbatim 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 mobilized to eradiciate 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 19th and early 20th century, the waging of war was not generally considered as unlawful or as a crime in the letal 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 following challenge: "...An attack against tie 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 rise 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." for a penal law if the action under consideration already had been threatened with punishment by existing law. regardless of whatever legal bases there may be for its proceedings - would be contradictory to a principle derived from the penal legislation of nearly all civilized nations and, which finds its expression in the rule "nulla poena sine lege", meaning that an act can only be the object of punishment if the punishment has been provided for by a 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 anchored in the constitution of practically all civilized nations. Thus for example, it is contained in Article 39 of the English Magna Charta of King John in 1215, in the North 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 it is also especially contradictory to create now also in the further development of international law an independent state of criminality of conspiracy by judicial opinion.
In this it cannot differentiate whether this conspiracy has as its aim the commitment of a crime against the peace or the commitment of a crime against the customs of war. Also, the assumption of a common plan or an agreement to commit war crimes as an independent state of criminality is not compatible with the principle of "nulla poena singe lege" Applicable are rather here also, -- as already rightly expounded by the French chief prosecutor - the rules pertainingto participation according to the native law of the perpetrator or according to the local law of the place of perpetration. These rules pertaining to participation will be limited under the given cir-cumstances to the extension of the threat of punishment for cases of complicity, instigation and assistance.
city, as defined in count I of the indictment, the defendant Rudolf Hess, within the limits of his personal responsibility for war crimes and crimes a gainst humanity, is charged by the Prosecution for the contents of only one document, i.e. document GB-268 (R-96). Reich Minister and Chief of the Reich Chancellory of 12 April 1941, which deals with the introduction of punitive laws against Poles and Jews in the incorporated Eastern territories. The defendant Rudolf Hess plays a part therein only in so far as the letter mentions among other things that the deputy of the Fuehrer had proposed the discussion of the introduction of corpor al punishment. if one takes into consideration that the staff of the deputy of the fuehrer alone comprized 500 officials and employees and that for questions of legislation, there was a special department which dealt directly with the several ministries, it seems very doubtful, whether the defendant Rudolf Hess was personally concerned with the matter at all. In this connection I refer to the affidavit of the witness Hildegard Fath, Exhibit Hess No. 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 facts of the case, it can be said than, as can be deduced from the penal law of all civilized countries there is here not even an attempt. The attitude of the deputy of the Fuehrer, as shown in the letter of the Reich Minister for Justice is penally irrelevant. It may be entirely left out of consideration whether a penal law would have been violated if the measure put up for consideration had effectively found its legislative outcome in a Reich law.
Another document submitted by the Prosecution is U.S.A.
exhibit 696 (062-PS). This refers to the directives of the deputy of the Fuehrer of 13 March 1940, dealing with the instructing of the civilian population as to the proper attitude to be taken in case of landing of enemy aircraft or parachutists on German Reich territory. This is the same document for Which I applied for a correction of the translation because the translation from German into English was in my opinion not correct. This document however has been included neither in the trial brief submitted by the British Prosecution nor mentioned by Colonel Griffith Jones on February 1946 when he dealt with the personal responsibility of the defendant Rudolf Hess. Considering however that this directive has been officially submitted as documentary evidence, it becomes necessary to deal with it briefly. that the French Government officially and by radio gave instructions to the French civilian population as to how they were to conduct themselves in case of landings by German aircraft. the Commander-in-Chief of the German Luftwaffe considered himself obliged for his part to inform also on his part 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 of enemy aircraft or parachutists, which was used as appendix to the mentioned order of the Fuehrer' deputy of 13 March 1940. contrary to the laws and customs of warfare, as they have been expressed, for instance, in the Hague Convention on Land Warfare. This applies particularly to No. 4, which contains the instruction either to arrest or to "render" enemy parachutists "harmless". There cannot be the slightest doubt that according to the text as well as to the spirit of No. 4, this was only meant to say that enemy parachutists were to be fought and annihilated in combat if they did not surrender voluntarily and tried to prevent their arrest by using force, particularly by the use of firearms.
This becomes evident from the word ''or" alone. First of all their capture was to be attempted. This alone in the interest of the intelligence Service. Only if this was made impossible by resistance should they be "rendered harmless", that means annihilated in combat. only be contrary to the text and the spirit, but beyond that would also be contrary to the fact that up to the French campaign the war had been waged according to the rules which had been established, among other things, 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 of annihilation, as it was to become after the outbreak of the German-Russian war.
The fact that another interpretation is absolutely impossible, is also evident from the so-called "Commando Order" of the Fuehrer, dated 18 October, 1942, which has been presented by the Prosecution under No. U.S.A. 501 (498-PS). The deliberations for this order, for which quite different reasons existed by the way, and the issuing of this "Commando Order" by Hitler himself, in spite of the opposition of the Wehrmacht High Command and the Chief of the Wehrmacht Operational Staff had been entirely superfluous, if the Commander-in-Chief of the Luftwaffe had already in March 1940 issued instructions which served the same purpose. It is furthermore expressly specified in figure 4 of the Fuehrer order of 18 October, 1942, that captured members of commando groups were to be handed over to the SD. completely unequivocal and does not leave aby doubt, I refrained from using additional evidence about this question. In the case, however, that the Tribunal should not share this assumption, it could not be avoided for the complete clarification of the facts that the Tribunal procure on its own initiative the instructions which the French Government issued at the begining of the year 1940 to the French civilian population in case of the landing of German aircraft or German parachutists.
It is not necessary to deal closer with document GB-267 (PS 3245) which is also charged to 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 admitted. member of the SA, the SS, the corps of political leaders and the Reich Cabinet As far as the membership of the SA and the SS is concerned, more detailed explanations are not necessary. From the documents presented by the Prosecution, it becomes evident that the defendant Hess had only the honorary title of an Obergruppenfuehrer in those two organizations.
No command or disciplinary powers were connected with it. highest office which existed in the corps of political leaders. It cannot be my task to take theposition that I comment on every detail of the accusation made against the corp of the political leaders within the framework and in application of Article 9 of the Charter and which is characterized by its motion to declare the corps of political leaders as a criminal organization. Considering the fact, however, that the defendant Rudolf Hess is, although not the only political leader there was, a few fundamental remarks seem to be justified. member of an organization that the organization to which the defendant belonged was a criminal one. A prerequisite for this is, according to the Charter, that this declaration of the Tribunal is connected with an act for which the defendant is being convicted. the Charter only a personally imputed and reproachable act or failture to cat but on the other hand not the increased liability resulting from Article 6, paragraph 3 for the act of another. Since, however, neither in the Indictment nor in the trial brief dealing with the personal responsibility of the defendant Rudolf Hess, no act of any kind is imputed against him which contains the facts of a war crime or a crime against humanity, in this case a conviction of the defendant Hess, namely as a member of the corps of political leaders, would be synonimous with the establishment of a criminal responsibility for the acts or ommissions of another. Although the defendant Hess was the highest political leader and although no action is imputed against him which contains the facts of a criminal case, he is to be convicted as a member of the reputedly criminal organization of which he was the leader; it cannot be denied that this is quite an unusual legal case.
But something else appears more important. The Defe nse was compelled to attack the core of the Charter, namely Article 6, as not being compatible with the generally valid principles of international law.
Article 9 of the Charter is not less in contradiction with the common legal conviction of all members of the international legal community. There exists neither a legal statue in international law nor a legal statute in any national law which declares the membership in an organization as criminal without it being examined in each individual case, whether the person concerned has made himself personally guilty by his own actions or emmissions. Contrary to the general principles of criminal law, as they are derived from the penal laws of all civilized countries, the Charter provides in Article 9 for a criminal responsibility and a collective liability of all members of vertain organizations and institutions, and this without any consideration as to whether the individual members has incurred any guilt. modern practive of criminal law. The rule of "no punishment without guilt" and the declaration that a certain organization is criminal, is a penalty for the members affected by it, is an essential part of the consciousness of criminal law of our time, insofar as one understands by guilt the inclusion of those prerequisites of the penalty which justify the personal reprobation of the unlawful act as against the culprit. If already the fact of membership in a certain organization alone becomes the object of a sentence of criminal unworthiness, then the act which is construed as being blamable in law does not appear any more as a legally condemnable expression of the personality of the culprit. This must, in particular, apply to organizations which had hundreds of thousands, and even millions of members. Punishment without guilt has existed only amongst primitive peoples. international law, says therefore appropriatedly:
"Just as religious eaching does not oppose the visiting of the sins of the fathers on the children and on the children's children, as in the dramas of the anvients blindly swaying fate and in the literature of today the law of heredity take the place of guilt, so does even the oldest law of all people know of no penalty without guilt."