The Nizkor Project: Remembering the Holocaust (Shoah)

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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

                                                  [Page 377]

proof of the position of enormous political power and
unimaginable authority which Adolf Hitler held 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 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, because of Hitler's death, an importance
in this trial 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 twelve
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 twelve years.

Your Honours, I come now to the event which was to conclude
the political career of the defendant Rudolf Hess - his
flight, to England on 10th May, 1941. For several reasons,
this undertaking is of considerable 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 favourable 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 13th, 14th and 15th May, he explained to him in
detail the motives a 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 9th July, 1941, a conversation took place between Rudolf
Hess and Lord Simon, who interviewed him on behalf 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 favourable 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
  proposed. The sphere of interest of the Axis Powers is to
  be Europe, and that of England its 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 a government in the Empire, or through incidents
  such as pillage, riots, etc. Indemnification to British
  nationals on the same basis by Germany.

                                                  [Page 378]

  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 Goering 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 interest 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. On the other
hand, the declarations made by Hess - they are included in
written notes on the conversation between him and Lord Simon
- 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 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 wants to allege that the
defendant Hess went farther and personally engaged in this
psychological preparation for war, then the contrary is
proved at the very least - apart from his numerous speeches
in favour of peace - by this 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 Goering
he was marked as Hitler's successor, can only be
characterised 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 the interest
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 the defendant decided to stake his
position in the Party, and everything that meant a personal
bond with Hitler, for the re-establishment of peace, then
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 Honours, the following statements deal with the
question of what 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 favourable
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 defence 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
favour.

                                                  [Page 379]

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 towards
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 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 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 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 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, i.e., the
law of the place where the act was committed, is binding in
this case.

Applying these principles to the behaviour of the defendant
Rudolf Hess and to his flight to England of 10th 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
civilised 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
countenance 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 favourable 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 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

                                                  [Page 380]

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 himself -
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 one of the objects of his
flight had been what the prosecution now claims, Hess would
have dealt with that question. In this connection I should
like to refer the Tribunal to Exhibit USA 875, Document 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 obviate
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 least in Hitler's mind. I refer to the
report of the American Chief of Staff Marshall, which I have
already read.

Is it 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 an 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 10th 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: 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 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 nations, and
especially in application of German penal law - which if
doubt arises will 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 Honours, 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 runs. 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
civilisation, which has already suffered severely in this
war. It appears therefore only too understandable if, under
these circumstances, an endeavour 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

                                                  [Page 381]

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 limiting the
claims to the legitimate requirements of the nations and
bringing the nations 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 maybe
to try to establish at least an improved and more powerful
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
civilised nations and constituted in particular an integral
component of International Law, namely that an act can be
penalised 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
proved which excluded jurisdiction on Counts 1 and 2 of the
Indictment, and the jurisdiction of the Tribunal, the
violation of the principle nulla poena sine lege, combined
with these special circumstances, must put the concept of
law in doubt altogether.

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 judgement of this
Tribunal.

THE PRESIDENT: The Tribunal will now adjourn.

(The Tribunal adjourned until Friday, 26th July, 1946, at 1000 hours.)


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