The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                   [Page 80]


THURSDAY, 4th JULY, 1946


DR. SAUTER (counsel for the defendant Funk): If you please,

THE PRESIDENT: The Tribunal has received your letter of 17th
June of this year signed by the defendant Walter Funk.


THE PRESIDENT: The Tribunal proposes to take notice of that,
and if you will read it, it will then become a part of the

DR. SAUTER: Mr. President, at the moment I have not the
letter with me.

THE PRESIDENT: You may have my copy but that is in English.
The Tribunal would wish you to read the letter at two

DR. SAUTER: Thank you, Mr. President.

THE PRESIDENT: The same observation applies to Dr. Exner's
letter of 23rd June, 1946, on behalf of the defendant Jodl;
only the Tribunal thinks that that letter also should be
signed by the defendant and read by Dr. Exner at two

I call on Dr. Jahrreiss.

DR. JAHRREISS (counsel for the defendant Jodl): Mr.
President and gentlemen of the Tribunal, the main juridical
and fundamental question of this trial concerns war, which
is forbidden by International Law, the breach of peace: as
treason to the world constitution.

It overshadows all other juridical questions. The four chief
prosecutors discussed this problem in their opening
speeches, sometimes as the central problem of their
presentation, sometimes as a fundamental problem and,
indeed, not without looking at it from different

Counsel for the defence has to examine it now. From among
the defence counsel, I have been asked to conduct this
examination. It is true that it remains for every counsel to
decide if and to what extent he feels himself in a position,
as a result of my arguments, to renounce his own
presentation of the question of the breach of the peace. But
I have reason to believe that this possibility will be used
to such an extent that the intention of the counsel for the
defence, considerably to simplify technically that part of
the trial which is now beginning, will be realised by my

I have to deal here only with the juridical question and not
with the evaluation of the hearing of evidence which has
lasted for months. And I am also dealing only with the
question of such law as is at present valid, not with the
question of such law as could or should be demanded in the
name of ethics or of human progress.

I have a purely scientific task to fulfil; science wants
nothing but the truth, knowing full well that its goal can
never be completely attained and that its path is therefore
without end.

I wish to thank the General Secretary of the Tribunal for
having placed at my disposal documents of a decisive and
very important nature. Without this kind assistance, it
would not have been possible under the present conditions in
Germany to complete my work. This literature, now accessible
to me, was published predominantly in the United States.
Knowing the vast French and English technical

                                                   [Page 81]

literature on this subject, which I have studied during the
last quarter of a century - I am unfortunately not
conversant with the Russian language - I believe that I can
fairly say that no important idea is overlooked, because in
no other country of the world has the discussion of our
problem, which has become the great problem of humanity,
been more comprehensive and more fundamental than in the
United States.

It was this fact that enabled me to forgo the use of the
technical literature published in the former German sphere
of control. In this way even the semblance of a pro domo
line of argument will be avoided.

Because of the short time at my disposal for this speech
and, at the same time, owing to the number and difficulties
of the problems with which I have to deal, it is not
possible to read here the documents and quotations which I
am using. I shall present only a few sentences. Any other
procedure would interrupt the line of argument. I,
therefore, submit to the Tribunal the documents and
references to books in appendices to my juridical arguments.
In this way, what I say can be quickly verified.

The Charter threatens individuals with punishments for
breach of the peace between States. And it appears that the
Tribunal accepts the Charter as the unquestionable basis for
all juridical considerations.

This means that the Tribunal does not examine the question
whether the Charter is, as a whole or in parts, open to
juridical objections; a question which nevertheless remains

If it is so, why then have any discussion at all here on the
great fundamental legal questions?

The British Chief Prosecutor even made it the central theme
of his long address to examine the relationship of the
Charter, where our question is concerned, to the existing
International Law. He justified the necessity of his
arguments as follows: It is the task of this trial to serve
humanity, and this task could be fulfilled by the trial only
if the Charter was consistent with International Law, that
is, if the punishment of individuals for breach of the peace
between States was founded in the existing International

It is, indeed, necessary to clarify whether certain
stipulations of the Charter may have created new laws and
consequently laws with retroactive force.

Such a clarification is not carried out here in order to
facilitate the work of the historians. They will examine
this, just as they will all the other findings in this
trial, according to the rules of free science, perhaps
through many years of work and certainly without limiting
the ground covered by the questions and, if possible, on the
basis of an incomparably greater quantity of documents and

Such a clarification is indispensable, simply for the reason
that the decision as to right and wrong depends, or may
depend, upon it, particularly if the Charter is considered
legally unassailable.

Let us assume that it were thus: The Charter does not
formulate criminal law which is already valid, but creates
new and, therefore, retroactive criminal law. What does this
signify for the verdict? Must this not be important for the
question of guilt?

Perhaps the retroactive law which, for instance, penalises
aggressive war was not already fixed in the conscience of
humanity at the time when the act was committed, nor was the
ground even simply prepared for it there. Then the defendant
cannot be guilty in the sense that he was aware of the
wrongfulness of his behaviour; not according to his own
conscience nor that of others.

Or the retroactive law was perhaps promulgated at a time
when a new conscience was just beginning to take shape but
was still not clear or not general. It is then in any case
possible that the defendant is not guilty in the sense that
he was aware of the wrongfulness of his commissions and

At any rate, from the point of view of continental European
thought on penal law, the fact that a person was not aware
of doing wrong is a point which the Tribunal must not

                                                   [Page 82]

Now the question as to whether the penal law contained in
the Charter is ex Post facto penal law does not present any
difficulty if the stipulations of the Charter are
unequivocal and the prescriptions of International Law to
date are uncontested.

But what if we have regulations capable of several
interpretations before us, or if the concepts of
International Law are the subject of controversy?

Let us take the first: A stipulation of the Charter is
ambiguous and therefore requires interpretation. According
to one interpretation which can be justified, the
stipulation appears to be an ex post facto law; according to
another, which can be equally well justified, it does not.

Let us take the second: The regulation is clear or has been
clarified by the interpretation of the Court, but experts on
International Law are of different opinions on the legal
position to date. It is not certain whether we have got an
ex post facto law before us.

In both cases it is relevant whether the defendant was
conscious of the wrongfulness of his behaviour.

I intend to elucidate how important these considerations are
in this trial.

I shall now begin the examination.

The starting points of the British and French Chief
Prosecutors are fundamentally different.

The British Chief Prosecutor argued as follows, if I
understood him correctly:

(1) The unrestricted right of States to wage war was partly
eliminated by the League of Nations Covenant and later
fundamentally by the Briand-Kellogg Pact, which continues to
be the core of the world peace order even today. War, which
is thus prohibited, is a punishable violation of law within
and towards the community of nations. And the individual who
has acted in a responsible position is punishable.

(2) The indictment of individuals for breach of the peace
is, indeed, something new, not only morally demanded, but
also long overdue in the course of legal developments; it
is, in fact, simply the logical result of the new legal
position. The Charter only appears to create new law.

And if I understood the British Chief Prosecutor correctly,
he asserts: Since the conclusion of the Pact of Paris there
is a clear legal order based on the whole world's uniform
convictions as to what is right. Since 1927 the United
States have negotiated, first with France, then with the
remaining Great Powers, with the exception of the Soviet
Union and with some of the smaller Powers, concerning the
conclusion of a treaty intended to abolish war. Secretary of
State Kellogg stated with memorable insistence what the
Government in Washington was striving for, namely:

The Powers should renounce war as an instrument of national
policy and this without legal definitions from a practical
point of view, with purity and simplicity unequivocally and
without qualifications or reservations. For otherwise the
object desired could not be attained:

To abolish war as an institution, i.e., as an institution of
International Law.

After the negotiations had been concluded, Aristide Briand,
the other of the two statesmen from whose initiative springs
the pact, which in Germany is often called the pact to
outlaw war (Kriegsaachtungspakt), declared when it was
signet in Paris:

  "Formerly deemed a divine right and remaining in
  International Law as a prerogative of sovereignty, such a
  war has now at last been legally stripper of that which
  constituted its greatest danger: its legality. Branded
  hence forth as illegal, it is truly outlawed by agreement

According to the conception of both leading statesmen, the
Paris Pact meant change of the world-order at its very
roots, if only all or almost all the nations o the world,
and particularly all the Great Powers, signed the pact or
adhered to it later on, as did actually happen.

The change is supposed to be the following:

                                                   [Page 83]

Up to the time of the Briand-Kellogg Pact, war had been an
institution of International Law.

Since the Briand-Kellogg pact war was high treason against
the order created by International Law. Many politicians and
scholars all over the world shared this conception. It is
the definite basic conception of the unique commentary on
the League of Nations Covenant by which Jean Ray influenced,
far beyond the borders of France, the practical and
theoretical proponents of the idea of preventing war.

It is also the basic conception of the Indictment at

Diplomacy and the science of International Law found their
way back into the old tracks after the First World War,
after a shock from which they recovered with remarkable
rapidity. This to the horror of those who wanted to see the
consequences - all the consequences - drawn from the

Mankind had a "grand vision of world peace" then, as Senator
Bruce called it when the Pact of Paris was before the Senate
for ratification. I know how much the personality and the
achievements of Woodrow Wilson are a subject of dispute. But
the more detachment we achieve; the clearer it becomes that
he - by making happy use of his own preparatory work and
that of others - finally conceived and presented to the
humanity of the time an entirely brilliant train of thought
which is as right today as it was then and which can be best
condensed as follows:

It is necessary to start afresh. The tragic chain of wars
and mere armistices which are called peace must be broken.

For once humanity must have the insight and the will to pass
from war to real peace, i.e., to peace which is good in its
essence - on existing legal foundations, without regard to
victory or defeat; and this peace which is good in its
essence must be maintained - and maintained in good
condition - by an organized union of States.

These aims can only be achieved if the most frequent causes
of war, namely excessive armaments, secret treaties and the
consecration of the status quo as a result of the lack of
insight of the current owner - a consecration which is
harmful to vital needs - are eliminated.

Humanity did not follow this path. And it is not to be
wondered at that amongst those who fought against the
instruments of Versailles, St. Germain, Trianon, Neuilly and
Sevres, be they in the camp of the vanquished or in that of
the victors, were the very ones who strove after real,
lasting peace. When the governments of the South African
Union and Canada, in their replies to Secretary of State
Hull's principles of enduring peace of 16th July, 1937,
indicated in unusually strong words that an alteration of
unjust, imposed treaties was an indispensable premise for
real world peace, they followed one of the fundamental views
of the great American president.

Humanity did not follow Wilson.

For the members of the League of Nations, too, war remained
a means for settling disputes prohibited only in individual
cases, but normal on the whole.

So said Jean Ray as late as 1930:

  "The League of Nations did not prove to be a guide to the
  true order of peace, indeed it did not even prove to be a
  sufficient brake on a complete backsliding into the old
  state. For, in fact, the world slid back entirely."

This is then the all-decisive fact in our problem of law.
Before the commencement of the Second World War the whole
system of collective security, even in the scanty beginnings
it had made, had collapsed, and this collapse was
acknowledged and declared expressly, or shown by unambiguous
actions, by three world powers - and, in fact, declared with
full justification. Great Britain expressly stated this at
the beginning of the war to the League of Nations. I shall
show this immediately.

The Soviet Union treated the German-Polish conflict simply
according to the rules of classic International Law
concerning debellatio. I shall explain this shortly.

                                                   [Page 84]

The United States declared their strict neutrality. I shall
explain the import of this declaration.

The system of collective security has been the subject of
much dispute. In this question of the world's conscience,
which is also of fundamental importance in this trial, it
cannot be a matter of indifference that this system, rightly
or wrongly, appeared in 1938 to such a prominent specialist
on International Law as the American, Edwin Borchard, as
absolutely inimical to peace and as the child of the
hysteria of our age; and the collapse may have had various
causes; it is certain that the above-mentioned three world
Powers testified at the beginning of September, 1939, to the
collapse - the complete collapse - and that they did not, in
fact, do this as a consequence of the German-Polish war.

(1) On 7th September, 1939, the British Foreign Office told
the Secretary General of the League of Nations:

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