The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. SEIDL: Moreover, the following is to be said about
Article 6, paragraph 3, of the Charter:

The concept of conspiracy, as it has been expressed in
Article 6, paragraph 3, is a typical institution of Anglo-
American law. The Continental European law does not know any
such criminal concept. But there cannot be any doubt that
international penal law, in so far as there is any such law
in the more narrow and proper sense of the term, and if one
does not understand by it the sum total of the rules which
are to be observed in the application of national or foreign
law, likewise does not know the concept of conspiracy as a
group of facts constituting a crime in criminal law.

But it is not only the question of prevailing International
Law and the agreement of the Charter with the same, which is
to be put to test. The issue in connection with this is
rather the answering of the following question also:

In the opening speeches of the four Chief Prosecutors and
also in the discussions prior to the trial concerning the
legal basis of the trial, two entirely contradictory
arguments were advanced. While some argued that the Charter
was a complete expression of the prevailing International
Law and was in agreement with the common legal beliefs of
all members of the international legal community, the others
asserted that one of the main tasks of the International
Military Tribunal which was then to be set up would be to
develop International Law further. This latter opinion, for
example, stands out clearly in the report of the American
Chief Prosecutor to the President of the United States of
7th June, 1945. Here, word for word, it states 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 mobilised to eradicate 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
  nineteenth and early twentieth centuries, the waging of
  war was not generally considered as unlawful or as a
  crime in the legal 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 the following challenge:

  "... An attack against the 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
  raise 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."

And, as a matter of fact, it would not be necessary to raise
the demand for a new penal law if the action under
consideration was already threatened with punishment by
existing law.

It is obvious that the fulfilment of such a demand by a
court of law - regardless of whatever legal basis there may
be for its proceedings - would be contradictory to a
principle derived from the penal legislation of nearly all
civilised nations, and which finds its expression in the
rule nulla poena sine lege, meaning, therefore, that an act
can only be the object of punishment if the act was declared

                                                  [Page 373]

punishable by 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 firmly rooted in the
constitution of practically all civilised nations. Thus, for
example, it is contained in Article 39 of the English Magna
Charta of King John of 1215, in the 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 rather it is also especially contradictory to the idea
or intention of creating still another independent concept
of conspiracy in criminal law by judicial dictum, in the
further development of hitherto existing International Law.
In this it cannot make any distinction as to whether this
conspiracy was directed toward committing a crime against
the peace or committing a crime against the customs of war.
Also, the assumption of a common plan or an agreement to
commit war crimes as an independent crime in criminal law is
not compatible with the principle of "nulla poena sine
lege". What are applicable here are rather - as already
correctly. expounded by the French Chief Prosecutor - the
rules defining participation according to the law of the
perpetrator's own country or according to the law in the
place of perpetration. Under given circumstances, these
rules defining participation are limited to the extension of
the threat of punishment to cases of complicity, instigation
and assistance.

Apart from his participation in the general plan or
conspiracy, as defined in Count 1 of the Indictment, the
defendant Rudolf Hess, in connection with his personal
responsibility for war crimes and crimes against humanity,
is essentially accused by the prosecution on the basis of
the contents of only one document, and that is Exhibit GB
268 (Document R-96).

This concerns a letter from the Reich Minister of Justice to
the Reich Minister and Chief of the Reich Chancellery on
12th April, 1941, which deals with the introduction of penal
laws against Poles and Jews in the incorporated Eastern
territories. The defendant Rudolf Hess plays a part in this
only in so far as the latter mentions, among other things,
that the Deputy of the Fuehrer had proposed the discussion
of the introduction of corporal punishment. If one considers
that the staff of the Deputy of the Fuehrer alone comprised
500 officials and employees, and that for questions of
legislation there was a special department which dealt
directly with the separate ministries, it seems very
doubtful whether the defendant Rudolf Hess was personally
concerned in this matter at all. In this connection I refer
to the affidavit of the witness Hildegard Fath, Exhibit Hess
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 elements of the case, it can be said that, in
application of principles such as can be derived from the
penal law of all civilised countries, there is here not even
an attempt. The attitude of the Fuehrer, or, more correctly,
the Deputy of the Fuehrer, as expressed in the letter of the
Reich Minister for Justice is irrelevant from the point of
view of criminal law. We need not consider whether a penal
law would have been violated if the measure proposed for
discussion had actually found legislative expression in a
Reich law.

Another document submitted by the prosecution is Exhibit USA
696 (Document 062-PS). This refers to the order of the
Deputy of the Fuehrer of 13th March, 1940, which deals with
the instructing of the civilian population as to the proper
attitude to be adopted in case of landings by enemy aircraft
or parachutists on German national territory. This is the
same document concerning which I have already applied for a
correction of the translation because the translation from
German into English was at any rate in my opinion not
correct. This document, however, is neither contained in the
trial brief submitted by the British prosecution,

                                                  [Page 374]

nor was it mentioned by Colonel Griffith-Jones on 7th
February, 1946, when he discussed the personal
responsibility of the defendant Rudolf Hess. In
consideration, however, of the fact that this order was
officially submitted as documentary evidence, it is
necessary to go into it as briefly as possible.

The occasion for this order of 13th March, 1940, was the
fact that the French Government had given instructions to
the French civilian population officially and by radio as to
how they were to conduct themselves in case of landings by
German aircraft.

On the basis of these instructions of the French Government,
the Commander-in-Chief of the German Luftwaffe considered
himself also called upon, for his part, to inform 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 by enemy aircraft or
parachutists, which was used as an annex to the above-
mentioned order of the Deputy of the Fuehrer of 13th March,
1940.

This directive, however, does not contain anything which is
contrary to the laws and customs of warfare, as they have
been expressed, for example, in the Hague Rules on Land
Warfare. This applies particularly to No. 4 which contains
the order that enemy parachutists are either to be arrested
or rendered harmless. According to the text as well as the
sense of No. 4, there cannot be the slightest doubt that
this was only meant to say that enemy parachutists were to
be fought and subdued if they did not surrender voluntarily
and tried to avoid their arrest by using force, particularly
by the use of fire-arms. This becomes evident from the word
"or" alone. First of all, the attempt was to be made to take
them prisoner. This alone in the interest of the
Intelligence Service. Only if this proved impossible because
of resistance were they to be rendered harmless, that means
subdued.

Any other interpretation of this order would not only be
contrary to the text and the sense, but, moreover, would
also be contrary to the fact that up to the French campaign,
the war had been waged according to rules such as had been
established, among other agreements, 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
for annihilation that it was to become after the outbreak of
the German-Russian war. The fact that a different
interpretation is absolutely impossible is also evident from
the so-called "Commando Order" of the Fuehrer of 18th
October, 1942, which was presented by the prosecution in
Exhibit USA 501 (Document 498-PS). The deliberations
preceding this order - which, by the way, was issued under
completely different conditions - and the fact that this
"Commando Order" was decreed by Hitler himself, in spite of
the opposition of the Wehrmacht High Command and the Chief
of the Wehrmacht Operations Staff, would have been entirely
superfluous if the Commander-in-Chief of the Luftwaffe had
already issued instructions which served the same purpose in
March, 1940. It is, furthermore, expressly specified under
No. 4 of the Fuehrer order of 18th October, 1942, that
captured members of commando groups were to be handed over
to the SD.

As the German text of this directive about the order of 30th
March, 1940, is completely unequivocal and does not leave
any room for doubt, I refrained from procuring additional
evidence about this question. In the event, however, that
the Tribunal should not share this assumption, it would be
unavoidable for the complete clarification of the facts that
the Tribunal should, on its own initiative, procure the
instructions which the French Government issued at the
beginning of the year 1940 to the French civilian population
relative to landings by German aircraft or German
parachutists.

It is not necessary to go into any more detail about Exhibit
GB 267 (Document PS-3245) which is also brought forward
against 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 applied.

                                                  [Page 375]

Besides being indicted as an individual, Rudolf Hess is also
indicted as a member of the SA, the SS, the Corps of
Political Leaders and the Reich Cabinet. As far as his
membership in the SA and the SS is concerned, more detailed
explanations are superfluous. From the documents presented
by the prosecution, it becomes evident that the defendant
Hess held only the honorary rank of an Obergruppenfuehrer in
both of these organizations. No command or disciplinary
powers were connected with it.

As Deputy of the Fuehrer, however, the defendant Rudolf Hess
held the highest office which existed in the Corps of
Political Leaders. I cannot assume the task of commenting in
detail on the charge which is brought against the Corps of
Political Leaders under, and in application of, Article 9 of
the Charter, and which is characterised by its motion to
declare the Corps of Political Leaders a criminal
organization. Considering the fact, however, that the
defendant Rudolf Hess, although not the only political
leader here in the dock, was nevertheless the supreme
political leader, there appears to be occasion for making a
few fundamental remarks.

According to Article 9 of the Charter, the Tribunal can
declare to a member of an organization that the organization
to which the defendant belongs or belonged was a criminal
one. According to the Charter, a necessary condition for
this is that the declaration of the Tribunal be connected
with an act for which the defendant is convicted.

By an "act" within the meaning of Article 9 of the Charter,
one can only understand a deed of commission or omission for
which the defendant is personally accountable and to blame,
but not, on the other hand, the increased liability for the
act of another resulting from Article 6, paragraph 3. Since,
however, neither in the Indictment nor in the trial brief
dealing with the personal responsibility of the defendant
Rudolf Hess is an act of any kind charged against him which
satisfies the conditions constituting a war crime or a crime
against humanity, a conviction of the defendant Hess, in
this case also - namely, as a member of the Corps of
Political Leaders - would be synonymous with the
establishment of a criminal responsibility for the acts or
omissions of another. Although the defendant Hess was the
highest political leader, and although no action is charged
against him which constitutes a crime according to any penal
law, he is to be convicted as a member of the allegedly
criminal organization of which he was the leader; it cannot
be denied that this is a Legal situation which does not
happen every day.

But something else appears more important. The defence was
compelled to attack the very heart of the Charter, namely,
Article 6, as not being consistent with generally valid
principles of International Law. Article 9 of the Charter is
no less in contradiction with the common legal beliefs of
all members of the international legal community. There is
neither a legal statute in International Law, nor a legal
statute in any national law, which declares the membership
in an organization as criminal without examining in each
individual case whether the person concerned has made
himself personally guilty by his own actions or omissions.
Contrary to the general principles of criminal law, as they
are derived from the penal laws of all civilised countries,
the Charter provides in Article 9 for a criminal
responsibility and collective liability of all members of
certain organizations and institutions, and this without any
consideration as to whether the individual member has
incurred any guilt.

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, in so far as one understands
by guilt the sum total of those necessary conditions for
punishment which justify the personal reprobation of the
unlawful act as against the culprit. If the fact of
membership alone in a certain organization becomes the
object of a sentence of criminal unworthiness, then the act
which constitutes the

                                                  [Page 376]

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 among primitive peoples.

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 laws of all nations know 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 civilised nations.

Rudolf Hess is finally accused as a member of the Reich
Cabinet. In so far 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 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 ifs
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 definite 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 of conspiracy among the
men sitting in the dock, so was there as little of the kind
within the Reich Cabinet.

It is even 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.


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