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-Sixth Day: Thursday, 11th July, 1946
(Part 6 of 9)

[Page 299]

DR. PANNENBECKER: The latter interpretation was implied in the prosecution's presentation of the case by Sir Hartley Shawcross's remark that Article 6 of the Charter fills a gap in international penal procedure, but that the actual penal law to be applied to the defendants has already been previously standardised by positive laws. Equally to the point is Part II of the Charter, beginning with Article 6 and entitled: "Jurisdiction and General Principles," and it may be inferred therefrom that Article 6 is to establish a ruling as to the competence of this Tribunal as to procedure in specific groups of crimes.

Sir Hartley Shawcross's statements were directed against the objection that it is inadmissible and in contradiction with a basic legal principle to punish someone for an act which had not yet been forbidden at the time it was committed; an objection which has as a basis the conception that the Charter has created a new material penal law with retroactive effect.

It should be examined whether the prohibition of retroaction of penal laws is a legal principle of such importance that it should not be infringed.

I need not state to this Tribunal the reasons for which this legal principle found general recognition in all civilised countries, as an essential and a basic precept of justice.

In contrast to this, the prosecution has in its speech charged the defendants with the fact that they had continuously disregarded law and justice, and inferred from this that the defendants in this trial could not appeal to such a legal principle.

I do not believe, however, that such an argument can be decisive in this trial. The prosecution has replied negatively to the still more far-reaching question of whether it would not have been right to pay back in the same coin and not allow the defendants of this trial any possibility at all to defend themselves in an orderly legal procedure.

Such an attitude, simply to exercise the power of the victor on the defendants, has purposely not been assumed by the signatory Powers for reasons presented, in detail by the prosecution.

On the contrary, Sir Hartley Shawcross has appealed to the Tribunal to apply in this procedure - I quote - "the accepted principles of international usage."

If, however, one is to proceed in such a manner, then a trial must ensue which is in keeping with the same principles of law concerning the question whether the deeds with which the defendants are charged are to be regarded as criminal

[Page 300]

acts for which punishment is possible according to the recognized principles of international usage. It is not an argument, according to these principles, if a legal principle as fundamental as the prohibition of retroaction in penal law is in its application to be made dependent on whether or not the defendants themselves were concerned with law and justice. The decision of the signatory Powers, on the basis of considerations which have been seriously weighed, .to subject the conduct of the defendants to an orderly trial, observing all legal principles of international usage, signifies not only the observance of legal procedure with all assurances for fair trial, but this decision by the signatory powers also signifies the observance of the fundamental principles of a material guarantee of justice; and to these principles belongs the prohibition of retroactive penal laws.

In this connection I should like to point out that the decreeing of the retroactive validity of penal laws, when so ordered by the National Socialist Government for certain individual cases, to which Dr. Stahmer has already referred, shocked the entire civilised world. At that time, the violation of such a principle of law was generally condemned as a deplorable retrogression in civilisation.

I also ask the Tribunal to recall that one of the first measures taken by the occupation Powers for deliverance from the National Socialist abuses of the law was to declare void any laws of a retroactive character.

In view of this situation, there exist valid reasons, I believe, why Article 6 of the Charter should, according to its heading, be regarded as a ruling on the jurisdiction of this Tribunal, all the more so as the signatory Powers have already, and with so much emphasis, insisted on a renewed strict and uniform observance of the prohibition against retroactive penal laws.

On the basis of such an interpretation, whereby Article 6 establishes the jurisdiction of this Tribunal, it would be a matter for the Tribunal, through its own decision, not only to determine whether the charges on which the Indictment is based are proved, but also to rule on the legal question as to whether, for the facts established in each case by the prosecution, there exists a criminal law which makes punishment possible. To revert in this way to provisions of criminal law in existence at the time the act was committed does not mean it would be impossible for this Tribunal to call the accused to account for offences which are punishable under all circumstances. There are, however, a number of restrictions resulting from this which, in the opinion of the defence, it would be better to accept rather than to violate a principle so essential to just procedure as the prohibition of retroaction in criminal laws.

I am therefore of the opinion that it is entirely possible and not incompatible with the necessity for just expiation for war crimes to interpret Article 6 according to its heading as a ruling on the jurisdiction of this court, but not as a new kind of criminal law.

The next remarks concern themselves with the conspiracy, a matter which has been dealt with by Dr. Stahmer to such an extent that I can omit these pages. I continue now on Page 7 with the summary.

The Charter does not compel the interpretation that a defendant is responsible also for such acts of commission as exceed the measure of his participation in the common plan. The wording of the Charter, "in the execution of a common plan," does not contradict the interpretation that the Charter establishes liability for acts of commission which remained within the scope of the said plan. To this extent the assumption of liability for the actions of others complies with a precept of justice, but beyond that it would violate essential legal principles.

The defence therefore advocates the concept that, as far as the actions of others are concerned for which a defendant is to be made liable, proof must be required that these actions, in the manner of their execution, corresponded to the intention of the defendant.

To give an example:

The participation of a defendant in rearmament against the regulations of the Versailles Treaty does not in itself justify the assumption that that defendant also

[Page 301]

desired a war of aggression, which was later on planned by others in the further shaping of the plan to restore the military power of the German people.

I should like now to turn to the various categories of crimes of which the defendant Frick is accused, and first of all the assertion of the prosecution that the defendant participated in the planning and preparation of wars of aggression. With regard to the problem, as to whether a war of aggression is a criminal offence according to the concepts of law for the period in question, I refer, in order to avoid repetitions, to the statements of Professor Jahrreiss, with which, on behalf of the defendant Frick, I completely agree.

By virtue of these convincing statements, there is only one possibility of punishing participation in a war of aggression as a criminal offence that can be perpetrated by individual persons, when, contrary to the statement of Sir Hartley Shawcross, the Charter is applied as a standard of penal law, which has for the first time defined, with retroactive effect, a war of aggression as a criminal offence by individual persons. From the point of view of the other interpretation, which regards Article 6 of the Charter as a regulation of procedure for the jurisdiction of this, Tribunal, the defence holds that the deduction is cogent that the Tribunal is indeed declared competent to judge offences against peace, but that the criminal guilt of the individual defendants is not proved therewith because one condition for this is lacking, namely, the possibility of establishing that the defendants have offended against a principle of generally valid international usage or a principle of national law which defined the war of aggression at the time it took place and. declared it punishable as a crime of which a single individual could be guilty.

As it happens, statesmen during the period between the two World Wars have neglected to establish adequate measures of general validity by which it would have been made clear that anyone who, after the first awful slaughter of peoples, organized a second World War, would go about with a rope around his neck.

The statements of the prosecution that such rules of International Law are necessary are absolutely convincing, but the fact cannot be overlooked that such rules were nevertheless not created by the statesmen of that period at the right time.

A missing rule of law cannot be supplied subsequently, fashioned to fit a special case by an order of procedure or by the sentence of a court whose task is to apply the general law, but not to create it for a single special case.

I shall now turn to the actual statements of the prosecution concerning the participation of the defendant Frick in the planning and preparation of wars of aggression.

The prosecution already sees such activity in Frick's earliest co-operation with the Party, which he continued until the year 1933, in order to bring Hitler to power.

The prosecution appraises in a similar way the subsequent activity of Frick after the taking over of the government by Hitler, when he helped to consolidate the power of the Party and its leaders through measures of domestic policy, especially by his participation in the legal measures by which an armed force (Wehrmacht) was created, and finally by his collaboration in measures by which direct preparations were made in case of war.

Proceeding from the interpretation that only deliberate participation by the defendant in the preparation of a war of aggression is of penal significance, I shall now take up the question as to whether the prosecution has proved that Frick recognized his collaboration in the advancement of the Party and its aims as preparation for war, and intended it as such, and therefore personally helped to bring the war about.

In this connection the prosecution has made the assertion that Hitler and his Party, from the very beginning, openly pursued the aim of bringing about a change in Germany's international position by means of war.

On the basis of this statement the prosecution has declared that no special proof is necessary that, in working for Hitler and his Party, each of the defendants also knowingly collaborated in the preparation of a war of aggression.

[Page 302]

As proof of the fact that Hitler and his Party had from the beginning planned a war of aggression, the prosecution refers to the Party Programme which names as one of its aims the abolition of the Treaty of Versailles. No word is said, however, in the Party Programme, that this aim should be achieved by force of arms. In the Party Programme as the testimony of the defendant von Neurath has also shown, among other things, there is nothing to prove an intention existing from the very beginning to wage a war of aggression. Nor is anything different found in the other official publications of the Party from the time previous to Hitler's assumption of the government.

As the Party did not, on the basis of its official publications, reveal any intention to compel the revision of the Versailles Treaty by force of arms, it was therefore, even before 1933, recognized outside the territory of the Reich, as for example in the year 1930 in Danzig, when it received the sanction of the then High Commissioner of the League of Nations and of the Polish President.

From the time of his assumption of power on 30th January, 1933, Hitler, as responsible head of the government, adopted a quite unequivocal attitude with regard to the ways and aims of his foreign policy, in official speeches arid discourses as well as in private conversations.

Unchangingly, and upon every occasion that presented itself after his assumption of power, he stressed his absolute desire for peace and his abhorrence of war, and he always defended this attitude with convincing reasons. He repeated again and again that he intended to obtain certain revisions of the Versailles Treaty by peaceful means only.

I need not repeat the quotations to that effect from Hitler's speeches which already have been read by the prosecution to prove how Hitler deceived the world and the people he ruled by his peace talks. And the world, including the German people, took these speeches seriously which he, as responsible head of the government, made again and again. In the face of that, the people who, at an early stage, were convinced that Hitler wanted war, remained a hopeless minority throughout the world.

The prosecution has repeatedly alluded to this world belief which took Hitler's assertions of peaceful intentions seriously, and the best proof of this delusion about peace, even among the foreign statesmen who also knew the Party Programme, lies clearly in the fact that these statesmen neglected to such a great extent to arm against Hitler's war of aggression, in which nobody in Germany and in the world believed seriously who was not intimately acquainted with Hitler's most secret plans.

From the Party Programme and from isolated wild speeches made before 1933, during the period of parliamentary opposition, it is not possible to prove a continuous preparation for a war of aggression since the twenties, which is alleged to have been discernible to anybody who took a glance at the Party Programme.

The prosecution contends further that even if the warlike intentions were not discernible in a general way at first, the intention of Hitler to prepare a war of aggression must have been clearly visible to the defendant Frick on account of the duties which he had to fulfil after 30th January, 1933, in his capacity as Reich Minister of the Interior.

These duties included taking measures for the strengthening of the internal political power of Hitler and his Party. The prosecution referred in this connection to the collaboration of Frick in the legal decrees by means of which the opposition against Hitler's system of government was destroyed in Parliament and in the country; further, to the legislative measures which eliminated real self-government in the cities and communities, and to legislative and administrative decrees by which opponents of the National Socialist system were excluded from taking any part in the business of the State and in economic life.

The prosecution has submitted that without these measures Hitler could not have conducted another war, for the promising beginning of which the complete destruction of opposition in the country was said to be a necessary prerequisite,

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particularly the establishment of Hitler's absolute dictatorship. Yet in all the measures I have enumerated, a direct connection with the preparation for war is lacking. For these measures also had meaning and significance, not connected with a subsequent war, as projects of a National- Socialist internal policy. It has not been proved that beyond that the defendant Frick had been informed of Hitler's more far-reaching plans, namely, after strengthening power at home to pursue the aims of the Party's foreign policy not by peaceful means, but to enforce them by war.

By establishing retrospectively that the strengthening of Hitler's internal authority was a necessary condition for his later revealed intentions for war, nothing is achieved unless the proof is forthcoming that Hitler had, from the beginning, aimed at power in the domestic sphere only as a first step towards the waging of wars, and that Frick was aware of this when he took part in the measures of internal policy of which he is accused. Otherwise, as purely domestic measures, they do not come under the jurisdiction of this Tribunal according to the provisions of the Charter.

But there is no such evidence, and it is much rather to be assumed that Frick, as a typical Home Office official, considered his measures as absolutely independent acts which had nothing whatsoever to do with the solutions by force of questions of foreign policy.

Nor can another view of the situation be derived from the measures dealing directly with Germany's rearmament, i.e., the reintroduction of general conscription and the occupation of the demilitarised zone of the Rhineland.

In his capacity as Reich Minister for the Interior; Frick issued the orders of the civil administration for the mobilization of men liable for military service, and consequently he himself also signed the Armed Forces Law.

But also these measures of themselves could not be considered as preparations for a war of aggression. The reintroduction of compulsory military service and the assumption of military sovereignty over the demilitarised Western Zone were explained by Hitler himself to his collaborators and the world by arguments, the soundness of which was then widely accepted, and after the first shock, many foreign statesmen still believed in Hitler's persuasive assurances of his peaceful intentions, and expressed the opinion that there was no reason to fear any belligerent intentions on his part.

To be sure, Hitler personally declared to his Commanders-in- Chief on 23rd November, 1939, that he had created the Wehrmacht in order to make war. I refer to the Document 789- PS, Exhibit USA 23. But Hitler first cleverly obscured this intention by another argument which, even at that time, still found credence in Germany and abroad and - as proved by the evidence - even his collaborators in his own cabinet, who had not been initiated into his secret plans, believed in it.

So it is that several defendants refer to the fact that they approved of the reconstruction of the German Wehrmacht, though contrary to the provisions of the Versailles Treaty, but that they did not want a war and did not consider that by their collaboration they were contributing to the planning of a war of aggression. As to the defendant Frick, the view of his defence is that there is no proof that Hitler had informed him of his plans for war, and therefore his collaboration in the measures concerned with the reconstruction of the German Wehrmacht cannot be charged against him as an intentional collaboration in the planning of a war of aggression. A similar situation arises with regard to the defendant's activity in organising the civil administration in general for the eventuality of war, a task entrusted to the defendant as "General Plenipotentiary for the Administration of the Reich" by the second Reich Defence Law dated 4th September, 1938.

I beg to point out again that the position of General Plenipotentiary for the Administration of the Reich was created only by this second Reich Defence Law of 4th September, 1938, and thus was not included in the first Reich Defence Law of 21st May, 1935.

[Page 304]

To be sure, long before, even before 1933, ministerial consultants held conferences dealing with the subject of Reich defence, meeting at irregular intervals after 1933 as the "Reich Defence Committee," as shown in the documents submitted by the prosecution. These meetings had nothing to do with an agreement to wage wars of aggression. They deal with general questions of Reich Defence, as is customary also in other countries. By the Reich Defence Law of 21st May, 1935 the organization for Reich Defence was more closely co-ordinated, particularly by the appointment of a General Plenipotentiary for War Economy, and at his interrogation, the defendant Schacht explained in detail that the purpose for creating that position was not preparation for a war of aggression (according to the duties and regulations to be found in the first Reich Defence Law) but the organization of the economy for defence in the event of a war of aggression by other States.

It is not different with the positron of the Plenipotentiary General for. Reich Administration, as created by the second Reich Defence Law of 4th September, 1938, which was entrusted to the defendant Frick by virtue of his position as Reich Minister of the Interior.

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