The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-First Day: Thursday, 4th July, 1946
(Part 3 of 8)

[Page 88]

DR. JAHRREISS, Continued:

(2) Is it possible, or indeed permissible, that neutrality should still exist in such a war?

(3) Can the result of the war, if the aggressor is victorious, be recognized by law, especially if it is put into the form of a treaty, or must not the community of States deprive the aggressor of the spoils of his victory by a policy of non-recognition? Should there be, or perhaps even must there be, common coercive action by the States against the aggressor?

It must be noted: Not even the theory of law has drawn all the conclusions. The practice of the States, after a few tentative beginnings in isolated points, did not finally carry things to a conclusion in a single case.

With regard to the first point:

The validity of the international laws of war during a war, whatever the latter's origin, has not as yet been seriously disputed by any State. Any doubts that arose were cleared up in a way which allowed of no misunderstandings. I draw attention to Resolution No. 3 of the League of Nations Assembly of 4th October, 1921, and to the report of the Committee of Eleven of the League of Nations for the adaptation of the Covenant to the Pact of Paris.

The aggressor State has the same rights and duties in a war as the attacked nation, i.e., those laid down by the traditional international laws of war. The French Chief Prosecutor appears to wish to deviate from this line, but not to wish to draw

[Page 89]

the full conclusions. But I do not see any tendency to deviate from the present path even in the most recent practice of States.

With regard to the second point:

Attempts have been made to deny the obligations imposed by neutrality, and in fact finally to give the States not involved the right of non-neutrality and even the right to wage war against the aggressor. Some statesmen and scholars have devoted themselves just as passionately to undermining and even to denying the right to neutrality, as other statesmen and scholars have spoken in favour of its undiminished continuance. The clearer it became that the whole system of collective security did not function in the particular cases which were of decisive importance; namely, in those cases where steps would have had to be taken against a great Power, the more the idea of neutrality asserted itself with new strength. The complete discrediting of the League of Nations and of the system of the Briand- Kellogg Pact in the Abyssinian conflict put classic International Law back in its old position again here too. In 1935 Switzerland declared her unrestricted neutrality; Belgium, Denmark, Finland, Luxemburg, Norway, Holland and Sweden followed with their declaration at Copenhagen on 24th July, 1938. The failure of the League of Nations was the reason: and this fact was also mentioned openly.

With reference to the third point:

The following is the idea of the policy of non-recognition: The States not involved in a conflict should conduct themselves as members of the community of States, i.e., they should protect the constitution of the community of States by. refusing to recognize the fruits of the victor's victory, should he have been the aggressor. The situation he has created by force should not even seem to become a legal situation. He will thus be deprived of what he has gained, and one of the main inducements to wage war will thereby be eliminated. Such a policy of non-recognition is undoubtedly not enough to guarantee a system of collective security by itself, but it is an indispensable part of such an order. There can be no dispute about this. The Brazilian representative Braga gained merit by proposing, at the Second League Assembly in 1921, such a policy to be followed by the members of the League of Nations under the name of a "universal juridical blockade" (blocus juridique universel). The Finnish representative Procope interpreted Article 10 of the Covenant in this sense in 1930 before the League Assembly. The Notes of the American Secretary of State Stimson of 7th January, 1932, to China and Japan further echoed this idea. Their contents are commonly called the Stimson Doctrine. The League of Nations accepted the Doctrine as a resolution of the Assembly dated 11th March, 1932. The idea was later the central point of the Pact of Rio de Janeiro of 10th October, 1933, and of the Budapest articles of 10th September, 1934.

The conflict between Italy and Abyssinia in 1935/36 became the great test-case, which decided the fate of the system of collective security:

The League of Nations declared a member which was a great Power to be the aggressor and decreed economic sanctions, but then shrank from coercive military measures and finally, after Italy's victory, struggled painfully in debates on procedure, especially at the 18th Assembly of the League, to find an answer to the question as to how the League, without openly betraying its constitution, could cross the attacked member, the minor Power Abyssinia, off the list of existing States and recognize it as part of the Italian Empire. The United States also did not enforce the Stimson Doctrine, but remained strictly neutral.

It is necessary to know all this; and also to know that the British Government on 20th February, 1935, politely but firmly refused, through the Lord Chancellor, Viscount Sankey, to accept the logical deductions, and paid tribute to the old truth: "It is not logic but history that creates law." On a later occasion, when Secretary of State Cordell Hull had explained the principles of American policy to all the Powers on 16th July, 1937, the Portuguese Government issued a warning against "the abstract and generalising tendency of jurists"; it warned against

[Page 90]

attempts to "find a single formula" and against not studying historic facts sufficiently.

We therefore come to the conclusion that:

In the practice of the relations between States there existed - at least during several years prior to 1939 - no effective general ruling on International Law regarding prohibited war.

No such general ruling existed so far as the leading statesmen and the peoples were aware.

This is, in fact, the ultimate reason why the path of special rulings on International Law was followed to an ever- increasing extent: two States would then conclude treaties, in full knowledge of their particular historical conditions and with a view to securing peace between themselves.

Now, during the Second World War the United States Government decided to help Great Britain. Great Britain was able to acquire destroyers and it later received the assistance of Lend-Lease. The American public recognized this act of assistance as being essentially no longer neutral; it was regretted by some, welcomed by others, now attacked and now defended. The supporters of the measures before the American public, above all Stimson and Cordell Hull, quite rightly did not attempt to justify them as consistent with neutrality. On the contrary, they took up their stand on the Pact of Paris as interpreted by the Budapest articles. As we saw, this would, according to Viscount Sankey's indisputably correct conception of what are the sources of International Law, have been wrong even in 1934.

After the developments which had taken place since Italy's victory over Abyssinia, such discussions were entirely outside the field of legal realities. Their purpose was to resolve internal dissensions in America and they could therefore be of no direct importance for International Law. Even had these discussions taken place between States, they could at most have helped to create law. But is it actually necessary to assert or prove that such discussions could not have created, during the great struggle, a law to attain which so many efforts - efforts which proved to be Utopian - were made in vain in peace time? In this Court many ways of legal thinking meet - ways which are in part very different. This leads to certain insoluble differences of opinion. But no way of legal thinking anywhere on earth, from the most ancient times to the most recent, could or can make possible arguments which contradict the very nature of law as a social order of human life arising out of history. If several governments accept articles, about the contents of which they are of different opinions, and if these articles then find no real application in the practice of these governments - which is not to be wondered at considering the circumstances under which they arose - and if theorists then interpret these articles and the practice of governments rejects these interpretations either expressly or tacitly, one must then resign oneself to this, in so far as one wants to keep to the task of legal evaluation, no matter how much the goal may be worth striving for politically or morally.

But let us forget for a moment the bitter realities of those years following the Italo-Abyssinian conflict. Let us suppose for a moment that a general and unambiguous pact had existed, accepted and applied by the contracting parties in fundamental and factual agreement. Would the liability of individuals to punishment for the breach of such a treaty be laid down in International Law?


Not even the liability of the State to punishment, let alone that of individuals.

The breach of such a treaty would. not differ under the existing International Law from any other violation of International Law. The State which violates a treaty would commit an offence against International Law, but not a punishable act. Attempts were occasionally made to deduce from words "delitt" (offence), "crime international" (international crime) and "condemnation de la guerre" (condemnation of war) the existence of an International Criminal Law dealing with our case. Such conclusions are based on wrong premises. Every lawyer knows

[Page 91]

that any unlawful behaviour can be called a "delitt" (delictum), not only punishable behaviour. And the word "crime" is used even entirely outside the legal sphere. And this is precisely the case here. When, in 1927, on Poland's application, the League of Nations Assembly declared war to be an international crime, the Polish representative expressly stated that the declaration was not actually a legal instrument, but an act of moral and educational importance. The attempt to organize a universal world system of collective security on a legal basis failed. But this does not mean that the numerous bilateral treaties, whose purpose it is to preclude wars of aggression between the two partners, became inapplicable. One will actually have to examine whether the parties to the treaty may have made the existence or continued existence of general machinery of collective security the prerequisite for the validity of the treaty.

The same applies to unilateral assurances of non-aggression as to the bilateral treaties.

Many bilateral non-aggression pacts were concluded, and several unilateral assurances were given. In some cases the political and in some a legal concept of aggression, and even a number of such legal concepts side by side, determine right and wrong. The German Reich also concluded a series of such pacts. They have been drawn upon by the prosecution as an argument. One must examine whether all these treaties were still in force at the critical moment. This examination must be left to the individual defence counsel. But if the German Reich did attack in an individual case in breach of a non-aggression pact which was still valid, it committed an offence in International Law and is responsible therefore according to the rules of International Law regarding offences in International Law.

But only the Reich. Not the individual, even if he were the head of the State. This is beyond all doubt according to the existing International Law. It is unnecessary even to speak about this. For up to the most recent times not even the possibility has been mentioned, either in the Manchurian, or in the Italo-Abyssinian or in the Russo-Finnish conflict, of instituting criminal proceedings against those people who were responsible, on the Japanese, Italian or Russian side, for planning, preparing, launching and waging war, or who simply participated in these acts in any way. And it was certainly not because matters had, paradoxically enough, not been thought out to the end, that they were not prosecuted. But they were not prosecuted because this cannot happen as long as the sovereignty of States is the organisational basic principle of the whole inter-State order.

THE PRESIDENT: I think this would be a convenient time to break off.

(A recess was taken.)

DR. JAHRREISS: Should things reach the point where, according to general world law, the men who participated in the planning, preparation, launching and waging war forbidden by International Law could be brought before an international criminal court, the decisions regarding the State's ultimate problems of existence would be subject to super-State control. One could, of course, still call such States sovereign, but they would no longer be sovereign. In his paper of late 1943 which I have already mentioned several times, and which he wrote after the Moscow conference of 1st November, 1943, Kelsen again and again repeats the phrase that in questions of breach of the peace, the liability of individuals to punishment does not exist according to the general International Law at present valid and cannot exist on account of sovereignty.

For Europeans, at any rate, the State has, for the last four centuries, above all since the ever more rapid advances made by the idea of the national State, gained the dignity of a super-person.

Of course, acts of State are acts of men. But they are in fact acts of State, i.e., acts of the State carried out by its organs and not the private acts of Mr. Smith or Mr. Muller.

[Page 92]

What the Indictment is doing when, in the name of the world community as a legal entity, it wants to have individuals legally sentenced for their decisions regarding war and peace, is, when one looks at it from the angle of European history, looking upon the State as one would look upon a private individual, indeed, more than that, what it is doing is destroying the State mentally. Such a charge, the moral justification of which is not my concern - such a charge is, as we have already shown, incompatible with the very nature of sovereignty and with the feeling of the majority of Europeans. It seems, indeed, as though not only Europeans feel that way. In 1919, in Paris, it was the American delegates at the War Guilt Investigation Committee who opposed most strongly any legal sentence on the Kaiser for the very reason of the incompatibility of such a procedure with the sovereignty of the State. And it is impossible to recognize the idea of sovereignty more strongly than Kellogg did eight years later during the negotiations in connection with the Pact of Paris, when he declared, as I have already said, "Every State is the sole judge of its behaviour with regard to questions affecting its existence."

There are epochs which idolise the sovereignty of the State; others which anathematise it. Some idolise and anathematise it simultaneously. Our epoch does so. Perhaps we are living in a period of transition. Perhaps a transformation of values is taking place. Perhaps world community will become the supreme political treasure for the peoples, in place of their own particular States, which have at any rate held this position hitherto. Perhaps we shall reach a point where the unleashing of a war deserving moral and also legal condemnation will, for the general legal conscience, constitute high treason against the world community. Perhaps we shall reach a point where it will be permissible, or even compulsory, to betray a government which starts such a war to foreign countries without a legal justification for calling this high treason towards one's country. At the moment in no nation is there a majority - let alone unanimity - in support of this opinion.

The punishment of individuals by the legal community of nations for breach of the peace between States can thus be ordered only if the fundamental principles of the International Law currently valid and the scale of values which has for centuries been firmly rooted in the feeling of the European nations are abandoned - that scale of values according to which the State, one's own sovereign State, forms the indispensable foundation for free personality.

The Indictment mentally wipes out the German State for the time when it stood upright in its full strength and acted through its organs. It must do so if it desires to prosecute individual persons for a breach of the peace between States. It must turn the defendants into private individuals. But it then combines them - so to speak on the private plane - with the help of the criminal law concept of a conspiracy which is taken from Anglo-Saxon law and is strange to us, gives them the many millions strong substructure of organizations and groups which are designated as criminal, and thereby again places a super-person before us.

In as far as the Charter supports all this by its regulations, it lays down fundamentally new laws, if - with the British Chief Prosecutor - one measures them against existing International Law. That which, originating in Europe, has finally spread to the whole world and is called International Law, is, in essence, a law of the co- ordination of sovereign States. If one measures the regulations of the Charter against this law, one must say: The regulations of the Charter negate the basis of this law, they anticipate the law of a world State.

They are revolutionary. Perhaps in the hopes and longings of the nations the future is theirs.

The lawyer, and only as such may I speak here, has only to establish that they are new - revolutionarily new. The laws regarding war and peace between States had no place for them - could not have any place for them. Thus they are criminal laws with retroactive force.

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