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."
guilt. As a matter of fact, in the history of law of all countries, the socalled criminal responsibility for the effects of crime without actual guilt was very soon replaced by the principle of responsibility for guilt only and thereby that state was reached which is alone compatible with, the dignity of man. The regulation provided by Article 9 of the Charter signifies not only a deplorable contribution to the apparently irresistible trend of herding together of man, but it is moreover a return to the first beginnings of concepts of criminal law. Considering these facts it cannot be acknowledged that this provision of the Charter is in agreement with prevailing law as it is derived from the common legal convictions of all the members of the community of international law and from the general principle of criminal law of all civilized nations.
Rudolf Hess is finally accused as a member of the Reich Cabinet. In regard to his belonging to the Secret Cabinet Council, the following may be said. The presentation of evidence has shown that this Secret Cabinet Council was only created to avoid the resignation of former Reich Foreign Minister von Neurath appearing to public opinion as a breach between him and Adolf Hitler. Actually no session of this Secret Cabinet Council ever took place. The Council did not even convene in a constitutional session. the results of the presentation of evidence that no cabinet meetings took place since 1937 at the latest. The tasks to be fulfilled by the Reich Cabinet, especially the legislative functions, were taken care of by the so-called circulating procedure. The presentation of evidence has shown further that from 1937 on at the latest, the great political and military decisions of Adolf Hitler were takne exclusively by him alone without making them known beforehand to the members of the Reich Cabinet. The Reich Cabinet, as an institution since Hitler's appointment as Reich Chancellor, has probably not made any decisive decision on politically or militarily important questions already very long before 1937.
It would be completely misleading to assume that the members of the Reich Cabinet in the National Socialist State had even an approximately similar position as it is a matter of course in a state governed by parlimentarian principles. Just as little as there was a common plan of conspiracy among the men sitting in the prisoner's dock, was there something similar within the Reich Cabinet. the Reich Cabinet which by themselves alone would make it impossible to arrive at an agreement for a common plan, as it was expressed in the Indictment. It is sufficient here to point to the testimony of the witness Lammers and to the fact that Adolf Hitler, from whom such facts could not remain hidden, finally issued even a prohibition with the contents, that the individual Reich Minister had no right to assemble any more for conferences on their own.
In this connection, something else cannot be left unmentioned. If the presentation of evidence in this trial produced anything with certainty, then it is the proof of the position of enormous political power and the unimaginable authority which Hitler had within the German governmental system.
When General Jodl testified on the witness stand that there was no one who could contradict Hitler in the long run and that there could not exist anyone, then one may say that he hit the nail right on the head with a few words. This may perhaps be regrettable, but one cannot alter anything of the fact as such. If one now keeps also in view that this dominant position of Hitler became always greater during the years, then this alone should be sufficient to exclude the assumption of a common plan, as it is asserted in the Indictment.
In any case, the following must be said: The former party leaders, generals and members of the cabinet indicted before this Tribunal are accorded in this trial an importance because of Hitler's death which they actually did not have in public life of the past. while the entire political life was overshadowed in Germany during the past twelve years by the overwhelming influence of Hitler's personality, the absence of this man from the prisoners' dock affects this trial in a manner which undoubtedly must result in an entirely distorted picture of the political reality of the past twelve years. career of the defendant Rudolf Hess -- his flight to England on 10 May 1941. This enterprise is of considerable importance as relevant evidence in this trial. As is shown by the presentation of evidence, the defendant Rudolf Hess had made the decision for this flight as early as June 1940 -- that is, immediately after the surrender of France.
The execution of the plan was delayed for a number of reasons: especially certain technical conditions had to be fulfilled in advance. Besides, considerations of political nature played a part, namely, that such an enterprise could be accompanied by success only when political situations and especially the military position appeared favorable for the preliminary arrangements of peace negotiations, for reestablishment of peace was undoubtedly the aim which Hess pursued by his flight to England.
day after his landing, he explained to the latter, "I come on a mission of humanity." During the conversation which the defendant had with Mr. Kirkpatrick of the Foreign Office on 13, 14 and 15 May, he explained to him in detail the motives which had induced him to take this extraordinary step. At the same time, he brought to his knowledge the conditions under which Hitler would be prepared to make peace. Simon, who appeared on the instructions of the British Government. I submitted the transcript of this conversation to the Tribunal as evidence and am referring to it. flight was the intention to avoid further bloodshed and to create favorable conditions for the introduction of peace negotiations. During the course of this conversation, the defendant Hess handed a document to Lord Simon which stated the four conditions under which Hitler would have been prepared at that time to conclude peace with England. The conditions were:
"1. In order to prevent future wars between the Axis and England, a delimitation of spheres of interests is proposed. The sphere of interests of the Axis powers is to be Europe, and that of England its Colonial Empire.
"2. Return of the Germancolonies.
"3. Indemnification of German nationals who were domiciled prior to or during the war in the British Empire and who suffered damage to life or property because of measures taken by a government in the Empire, or through incidents such as pillage, riots, etc. Indemnification to British nationals on the same basis by Germany.
"4. Conclusionof an armistice and peace treaty with Italy at the same time."
Rudolf Hess explained to Mr. Kirkpatrick, as well as to Lord Simon, that such were the terms on which Hitler was prepared to make peace with Great Britain immediately after the conclusion of French Campaign and that this position of Hitler had undergone no further change since completion of the campaign against France. There are no indications of any kind why this account of the defendant should not appear plausible. On the contrary. it tallies very well withmany declarations which Hitler himself had made on the subject of relations between Germany and England. In addition to that, the defendants Goering and von Ribbentrop confirmed also while in the witness box that the terms which Hess disclosed to Lord Simon corresponded with Hitler's views. sphere of interest of the Axis powers should not result in the conclusion that this was to mean Europe's domination by the Axis powers. The declarations made by Hess, rather, demonstrate -- they are included in written notes on the conversation between him and Lord Simon -- with all clarity that this was merely meant to eliminate England's interference in Continental Europe.
What legal consequences result from these-facts ? defendants -- with having cooperated in the psychological preparation of the German people for war. To the extent that the charge of psychological preparation for war is part of the common plan, it may suffice to refer to the remarks I have made in that connection. Hess went further and personally engaged in. this psychological preparation for war, proof to the contrary is at least offered - disregarding his numerous speeches in favor of peace - by this flight to England and the intentions responsible for it. personal relations between Hitler and the defendant Hess, one thing can be said with, certainty:
with his flight to England the defendant Hess accomplished a deed which in view of his position in the Party and in the State, and especially because of the fact that after Goering he was to become the Fuehrer's successor, can only be called a sacrifice, a sacrifice which Hess made not only for the sake of the German people and for the resumption of peace, but for the entire world. whose relation to Hitler was based on intimate personal confidence. If nevertheless the defendant decided to stake his position in the Party and everything that meant a personal bond with Hitler for the reestablishment of peace.
this must lead to the conclusion that the defendant Hess likewise saw in war the ghastly scourge of manking and that even if this were the only reason, the results little likelihood that it was his intention to prepare the German people for war. questions are to be drawn from the flight of the defendant Hess to England and in regard to his participation in the common plan alleged by the Prosecution, particularly in view of the attitude of the defendant, to what extent penal responsibility was incurred after the flight to England. The defendant himse does not wish to have any favorable conclusions drawn for him in this trial from this flight and the intentions connected with it. He has therefore aske me to omit a part of the following statement. Nevertheless, I consider it my duty as the defense counsel to draw all the legal conclusions resulting from t fliqht of the defendant Hess and the intentions connected with it and to point out the facts and points of view which, speak in favor of the defendant. evidence presented, that the plan claimed by the Prosecution did not exist. I case, however, the Tribunal should judge the results of the testimony differently and in application of article 6, paragraph 3 of the Charter, should accept the existence of such a plan, directed towards the beginning of a war o aggression, it becomes necessary to examine the question of what legal consequences the flight of the defendant Rudolf Hess to England and what the aims it contemplated had on his participation in the common plan as asserted by the Prosecution.
To this the following can be said: Article 6, paragraph 3 of the Charter extends the criminal responsibility of the defendant to include all acts committed by any person while carrying out the common plan maintained by the prosecution. The Charter itself contains no provisions as to whether and under what conditions withdrawal from a common plan is possible. This does n justify the conclusion, however, that such a withdrawal should be excluded as matter of principle. That assumption is out of the question for the very reason that the Charter quite clearly does not purport to give an exhaustive ruling on all questions of substantive and procedural law. If a withdrawal i permitted in Anglo-American law as a matter of fundamental principle, this should be possible with even greater reason under the Charter.
For the Charter represents a compendium of principles in which well recognized institutions of Continental European law are also given consideration. Continental European law proceeds quite unequivocally from the idea that the responsibility of the perpetrator before the penal law reaches no further than the extent to which his actions or omissions are embraced by his will. The withdrawal from the attempt, as a reason for acquittal, has therefore become an institution which can be found in almost all European codes of law. If, according to AngloAmerican Law, withdrawal from the conspiracy is possible, there can be no doubt as to that possibility's existing, in principle, according to the Charter. There is all the more reason for that assumption, in that it has been a practice to apply German Law in cases where the Charter fails to establish a binding rule. As regards the defendant Rudolf Hess, there should be even less reason for doubt, because the deeds charged against the defendant Rudolf Hess took place on German Reich territory. According to generally accepted principl of law, as they find expression in particular in the so-called International Penal Code of all nations, the so-called lex loci, i.e. the law of the place where the action took place, will be binding in this case. to his flight to England of 10 May 1941, it follows, and the evidence did not in any case produce anything to the contrary, that no subsequent developments can be embraced by his will. His influence on the events within the scope of war developments as a whole ceased, at the latest, with his flight to England. It contradicts all principles of penal law as they derive from the codes of law of all civilized nations to hold someone responsible, according to principles of penal law for a happening over which he had no influence and was no longer able to exert influence and which his will did not adopt. In this connection reference should also be made to the Prosecution's contention that the defendant Hess did not undertake his flight to England in order to create thereby favorable conditions for peace negotiations. That, on the contrary, it was his intention -- this is the argument of the Prosecution -- thus to protect Germany's rear in its planned campaign against the Soviet Union. The documents submitted by the Prosecution do not permit establishment of that assumption.
To begin with, this is contradicted by the fact that as early as June 1940, the defendant Hess had already decided on the flight; in other words, at a time when no one in Germany thought of a campaign against the Soviet Union. On the contrary, from the letter which the defendant Hess left behind and which was handed to Adolf Hitler at a time when Hess had already landed in England, it becomes perfectly clear that Hess had no knowledge of the imminent campaign against the Soviet Union. In this letter the defendant Hess did not state by a single word -- and this is established by testimony of the witness Fath -- that the purpose of his flight was to cover Germany's rear for the forthcoming campaign against the Soviets. In that letter Hess did not mention the Soviet Union by a single word. There is reason for the probability which almost amounts to certainty, that if Hess had had knowledge of the proposed attack, and if he had intended to combine with his flight the intention which the Prosecution new claims, Hess would have dealt with, that question. In this connection I should like to refer to the Exhibit USA 875 PS 3952, which also clearly shows that Hess had no knowledge of the campaign against the Soviet Union. the Soviet Union, this would not oppose the reason for penal acquittal in regard to the later period of time. Evidence has shown that in ordering the attack against the Soviet Union, the idea of anticipating a forthcoming attack on the part of the Soviets was by no means last in Hitler's mind. I refer to the report of the American General, which I have already read. whether such an attack was actually planned by Soviet Russia and wouldhave taken place. Statements made by the defendant Jodl while in the witness box make this appear very likely, if not even certain. The point at issue here is merely that on the basis of the reports he had before him, Hitler himself was of that opinion.
Had the defendant Rudolf Hess been successful in creating in England the prerequisites for armistice and peace negotiations, the political and military situation *---* Europe would have been so fundamentally changed that under these modified conditions an attack by the Soviet Union on Germany would have appeared most unlikely, and the apprehensions entertained by Hitler would have become untenable. The attempt made by the defendant Hess by his flight to England would also maintain its character where by penal, acquittal for all that happened after May 10, 1941, incidental to the execution of the common plot claimed by the prosecution is in order, if it were argued that it was not the fear of an imminent Soviet attack which prompted Hitler in his decision, but economic pressure resulting from the situation in which Germany found herself as a result of failure of the invasion of England. With the end of the war, this embarrassing economic situation would also have come to am end; at least it would not have been so stringent.
In conclusion it may be said: in undertaking his flight to England, and considering the intentions therein bound up with the re-establishment of peace, the defendant Hess made an attempt by which he pledged his entire personality to bring about the re-establishment of peace, an attempt which obviously sprang from the desire to avoid further bloodshed at all costs. Applying principles of law such as derive from the penal codes of all nations, and especially applying German penal law -- which if doubt arises will be taken as a basis for this question -- the conclusion must be accepted that the defendants Hess's responsibility according to penal law will in any case be confined to deeds which took place prior to the flight to England. to an almost unimaginable extent; it has made Europe into a continent bleeding from a thousand wounds and left Germany a field of ruins. It appears certain that at the present stage of modern technique, humanity would not survive another world war. This would, as far as it is humanly possible to foresee, utterly annihilate civilization, which has already suffered to an inexpressible extent in this war. It appears therefore only too understandable when under these circumstances the endeavor should be made in the name of humanity struggling for its existence, to leave no method untried from the legal standpoint as well, to prevent the repetition of such a catastrophe.