Afternoon Session (continued 2)

The Charter thus abandons a principle which is an integral part of any modern system of criminal law. The rule of “no punishment without guilt”—and the declaration that a certain organization is criminal is a punishment for the members affected by it—is an essential part of the idea of the criminal law of our time, insofar as one understands by guilt the sum total of those necessary conditions for punishment of the culprit. If the fact of membership in a certain organization alone becomes the object of a penal sentence, then the act which constitutes the charge no longer appears as a legally objectionable expression of the culprit’s personality. This must particularly apply to organizations which had hundreds of thousands, and even millions of members. For that reason punishment without guilt has hitherto existed only in primitive law. Therefore, Von Liszt, the great German teacher of criminal law, who was at the same time a constructive thinker in the field of international law, says appropriately:

“Just as religious teaching does not oppose the visiting of the sins of the fathers on the children and on the children’s children, just as in the dramas of the ancients the place of guilt is taken by blind, inexorable fate and in the literature of today by the law of heredity, so even the oldest law of all nations knows of no penalty without guilt.”

Only in primitive law did there exist a criminal responsibility without guilt. As a matter of fact, in the legal history of all countries, the so-called criminal responsibility for the effects of crime without actual guilt was very soon replaced by the principle of responsibility attaching to the guilty only and thereby that state was reached which is alone compatible with the dignity of man. The regulation provided by Article 9 of the Charter signifies not only a regrettable contribution to the hastening of the apparently inevitable reduction of men to mere members of a mass, but it is, moreover, a relapse to the first beginnings of concepts of criminal law. Considering these facts, it cannot be acknowledged that this provision of the Charter is in agreement with prevailing law as it is derived from the common legal beliefs of all the members of the community of international law and from the general principle of criminal law in all civilized nations.

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

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

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

In this connection, something else cannot be left unmentioned. If the presentation of evidence in this Trial has revealed anything with certainty, then it is the proof of the position of enormous political power and unimaginable authority which Adolf Hitler held within the German governmental system. When Generaloberst Jodl testified on the witness stand that there was no one who could successfully contradict Hitler in the long run and that such a person could not exist, then one might say that he expressed the true state of affairs in a few words. That may perhaps be regrettable, but cannot in any way alter the facts as such. Now, if one also bears in mind that this dominant position of Hitler became constantly greater during the course of the years, then this alone should be sufficient to exclude the assumption of a common plan, such as is alleged in the Indictment.

In any case, the following must be said: The former Party leaders, generals and cabinet members indicted before this Tribunal receive an importance in this Trial because of Hitler’s death which it is apparent they actually did not have in public life in the past. While the entire political life of Germany was overshadowed during the past 12 years by the overwhelming influence of Hitler’s personality, the absence of this man from the defendants’ bench affects this Trial in such a manner that it undoubtedly must result in an entirely distorted picture of the political reality of the past 12 years.

Your Honors, I come now to the event which was to conclude the political career of the Defendant Rudolf Hess—his flight to England on 10 May 1941. For several reasons this undertaking is of importance in this Trial as evidence. 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: In particular, certain technical conditions had to be fulfilled in advance. Moreover, considerations of a political nature played a part, namely, that such an enterprise could be attended by success, if at all, only when political conditions and especially the military situation appeared favorable for the opening of peace-negotiations; for re-establishment of peace was undoubtedly the aim which Hess pursued in his flight to England.

When the Defendant Hess was led before the Duke of Hamilton on the day after his landing, he declared to the latter, “I come on a mission of humanity.” During the conversations 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 informed him of the conditions under which Hitler would be prepared to make peace.

On 9 June 1941, a conversation took place between Rudolf Hess and Lord Simon, who appeared on the order of the British Government. I submitted the transcript of this conversation to the Tribunal as evidence and am referring to it.

It is shown by this document that the motive for this extraordinary flight was the intention to avoid further bloodshed and to create favorable conditions for the opening 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 to take place. The sphere of interests of the Axis Powers is to be Europe, and that of England her Colonial Empire.

“2. Return of the German colonies.

“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 the Government in the Empire, or through incidents such as pillage, riots, et cetera. Indemnification to British nationals on the same basis by Germany.

“4. Conclusion of 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 the 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 is fully in harmony with many statements which Hitler himself had made concerning relations between Germany and England. In addition to that, the Defendants Göring and Von Ribbentrop likewise confirmed while in the witness box that the terms which Hess disclosed to Lord Simon corresponded completely with Hitler’s views.

If the terms announced by Hess provided that Europe was to be the sphere of interests of the Axis Powers, the conclusion can in no way be drawn from this that this was synonymous with a domination of Europe by the Axis Powers. The declarations made by Hess—they are included in written notes on the conversation between him and Lord Simon—rather demonstrate with all clarity that this was merely to eliminate any interference by England in continental Europe.

What legal consequences result from these facts? In the Indictment, the Defendant Hess is charged—together with the other defendants—with having co-operated in the psychological preparations of the German people for war. To the extent that the psychological preparation for war alleged by the Prosecution is part of the common plan, it is sufficient to refer to the remarks I have made in that connection. However, if the Prosecution also want to allege that the Defendant Hess went further and personally engaged in this psychological preparation for war, then the contrary is proved at the very least—apart from his numerous speeches in favor of peace—by his flight to England and the intentions behind it.

Without going into detail as regards general circumstances and the personal relations between Hitler and the Defendant Hess, one thing can still be said with certainty: By 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 in view of the fact that after Göring he was marked as Hitler’s successor, can only be characterized as a sacrifice, a sacrifice which Hess made not only in the interest of the restoration of peace, and in the interest of the German people, but also in that of Europe and the whole world. This sacrifice was all the greater as Hess was one of the very few whose relation to Hitler was based on intimate personal confidence. If, nevertheless, the Defendant Hess decided to stake his position in the Party and in the State and his personal bond with Hitler for the re-establishment of peace, this must lead to the conclusion that the Defendant Hess likewise saw in war the ghastly scourge of mankind and that it must appear quite improbable for this reason alone that it was his intention to prepare the German people for war.

Your Honors, the following statements deal with the question of what legal conclusions are to be drawn from the flight of the Defendant Hess to England with respect to his participation in the Common Plan or Conspiracy alleged by the Prosecution, particularly, in view of the attitude of the defendant, to what extent any criminal responsibility can still be assumed, even after the flight to England. The Defendant Hess himself does not wish to have any favorable conclusions drawn for him in the course of this Trial from this flight and from the intentions connected with it. He has, therefore, also asked 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 the flight of the Defendant Hess and his intentions in connection with it and to point out the facts and points of view which in any way speak in the defendant’s favor.

As I have explained, it must be assumed on the basis of the evidence presented, that the plan alleged by the Prosecution did not exist. In the event, however, that 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 toward the beginning of a war of aggression, it becomes necessary to examine the question of what legal consequences the flight of the Defendant Rudolf Hess to England and his intentions in connection with it 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 alleged by the Prosecution. The Charter itself contains no provisions as to whether and under what conditions a separation or withdrawal from a common plan is possible. This does not justify the conclusion, however, that such a withdrawal should be excluded as a matter of principle. That assumption is precluded by 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 is permitted in Anglo-American law as a matter of fundamental principle, this should be possible with more reason under the Charter. For the Charter represents a compendium of principles in which institutions of continental European law are also given consideration. Continental European law proceeds quite unequivocally from the idea that the responsibility of the perpetrator under criminal law extends only so far as his actions or omissions are controlled 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 Anglo-American 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 on principle to apply German law in cases where the Charter fails to establish a binding rule. With regard to the Defendant Rudolf Hess, there should be even less reason for doubt, because the acts charged against the Defendant Rudolf Hess were committed within the territory of the German Reich. According to generally accepted principles of law, as they find expression in particular in the so-called international penal code of all nations, the so-called lex loci, that is, the law of the place where the act was committed, is binding in this case.

Applying these principles to the behavior of the Defendant Rudolf Hess and to his flight to England of 10 May 1941, it follows in the first place—and the evidence likewise did not produce anything to the contrary—that all the subsequent developments could not have been controlled by his will. His influence on the course of events within the development of the war as a whole ceased, at the latest, with his flight to England. It contradicts all principles of penal law, as they are derived from the codes of law of all civilized nations, to hold someone criminally responsible for acts and results upon which he had no influence, and was no longer able to exert any influence, and which he did not adopt by his own volition.

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 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 her planned campaign against the Soviet Union. The documents submitted by the Prosecution do not provide any basis for this assumption. To begin with, this is contradicted by the fact that the Defendant Hess had already decided on the flight as early as June 1940, 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 impending campaign against the Soviet Union. In this letter the Defendant Hess did not state by a single word—and this is established by the testimony of the witness Fath, who read the letter herself—that the purpose of his flight was to cover Germany’s rear for the impending campaign against the Soviets. In that letter Hess did not mention the Soviet Union by a single word. It must rather be assumed, with a probability which almost amounts to certainty, that if Hess had had knowledge of the proposed attack, and if he had intended to combine the intention with his flight, which the Prosecution now claims, Hess would have dealt with that question. In this connection I should like to refer the Tribunal to Exhibit Number USA-875, Document Number 3952-PS which also clearly shows that Hess can have had no knowledge of the impending campaign against the Soviet Union.

But even if Hess had had definite knowledge of the planned campaign against the Soviet Union, this would not oppose the reason for his acquittal under criminal law in regard to the subsequent 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 Chief of Staff Marshall, which I have already read.

It is immaterial in connection with the question to be examined here, whether such an attack was actually planned by Soviet Russia and was imminent. Statements made by the Defendant Jodl while in the witness box must make this appear at least very likely, if not absolutely certain. The decisive point here is merely that on the basis of the reports he had before him Hitler personally was of that opinion. Had the Defendant Rudolf Hess been successful in establishing the necessary conditions for armistice and peace negotiations in England, the political and military situation in 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 in his flight to England would also maintain its character as a reason for acquittal under criminal law for all that happened after 10 May 1941, and in carrying out the common plan alleged by the Prosecution, even if it were argued that it was not the fear of an imminent Soviet attack which prompted Hitler in his decision, but the embarrassing economic situation in which Germany found herself as a result of the failure of the invasion of England. For with the ending of war with England, this embarrassing economic situation of Germany would also have come to an end; at least it would not have been so stringent.

In conclusion, it may be said that in undertaking his flight to England, which was linked with his plans for the restoration of peace, the Defendant Hess committed his entire person in an attempt which obviously sprang from the desire to avoid further bloodshed at all costs. In application of principles of law such as are derived from the penal codes of all civilized nations, and especially in application of German penal law—which if doubt arises is to be taken as a basis for this question—the conclusion must be drawn that the criminal responsibility of the Defendant Hess will in any case be confined to acts which were committed prior to the flight to England.

Your Honors, the past war has brought misery upon the whole of mankind to an almost unimaginable extent; it has turned 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 technical developments, humanity would not survive another world war. As far as it is humanly possible to foresee, this would completely annihilate civilization, which has already suffered unspeakably in this war. It appears therefore only too understandable if, under these circumstances, an endeavor should be made in the name of humanity, which is struggling for its existence, to leave nothing untried, even from the legal standpoint, to prevent the repetition of such a catastrophe.

There can, however, be no doubt that the law, whatever its strength may be in social life, can only play a subordinate part in the prevention of war. This applies without any limitation as long as the community of nations is composed of sovereign states which acknowledge no legal code derived from a superior authority, and as long as no procedure and no organization exists which by virtue of its own authoritative power could establish laws legally limiting the legitimate claims of the nations and bringing them into harmony with one another. As long as these conditions are not fulfilled, justice cannot be in the domain Of international relations the regulating force it is in national life where it rests directly upon the power of the state which is behind it. Tempting as it may be to try to establish at least an improved and more powerful body of international law on the ruins left us by the past world war, such an attempt must be doomed to failure from the outset if it does not coincide with a comprehensive new order of all international relations and if international law is not simultaneously an essential part of an order which guarantees the indispensable rights of all nations and which assures in particular the satisfaction of the legitimate claims of every nation to a proportionate share of the material wealth of the world. The Charter of the International Military Tribunal is undoubtedly not part of such a general new order. It was enacted by the victorious powers for a limited duration, namely, as a foundation for a criminal trial against the statesmen, military commanders, and economic leaders of the Axis Powers which had been defeated in war. The contents of the London Agreement made the Charter of the International Military Tribunal, which constituted an essential part of this agreement, appear as a legislative measure ad hoc by reason of the very time limit of one year stipulated by Article 7. As a matter of fact, it can scarcely remain doubtful that essential parts of the Charter are not in accordance with the general convictions of all members of the international legal community and that they do not, therefore, constitute really valid international law. Under these circumstances, a conviction for a crime against the peace and for participation in a common plan to initiate a war of aggression could only take place at variance with prevailing international law if the Tribunal decided, in violation of the principle nulla poena sine lege, upon a juridical extension of international law. Great as this temptation may be, its consequences would be incalculable. Not only would a principle be violated which is derived from the principles of the criminal law of all civilized nations and constituted in particular an integral component of international law, namely that an act can be penalized only when its penal character has been juridically specified prior to the commission of the act; but above all, in view of the fact that in the present Trial facts were revealed which excluded jurisdiction on Counts One and Two of the Indictment and the jurisdiction of the Tribunal so far, the violation of the principle nulla poena sine lege, combined with these special circumstances, must put the concept of law in doubt altogether.

A violation of so fundamental a legal principle inherent in all judicial systems—and that applies to international law as well—as expressed in the maxim nulla poena sine lege, and even more so in the postulate that nobody must be a judge in re sua, would not only obstruct any further development of international law but would, furthermore, indubitably lead to an increased legal insecurity.

If the way for genuine progress in international legislation is not to be obstructed, then only the actual international code which was valid at the time the acts were committed can be considered as the legal basis for the judgment of this Tribunal.

THE PRESIDENT: The Tribunal will now adjourn.

[The Tribunal adjourned until 26 July 1946 at 1000 hours.]