The Nizkor Project: Remembering the Holocaust (Shoah)

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Dr. STAHMER, Continued:

From this time on the search for true justice stirs the
world. All Socialist theories are only attempts at solving
this problem. After having been disappointed by the
doctrines of too much liberty, mankind once again seeks
security and order. Some wish to return to the Christian
truth of God while others want to go forward in order to
solve the problem through human intellect eventually.

The National Socialists, whose most revolutionary leaders
wanted to go farther backwards and at the same time forward
to a self-deification of life in a biological political
sense, have been conquered and eliminated. Yet a solution of
the problems of world order has hitherto not been found. The
victorious powers intend to come close to it, however, by
drawing a line between themselves and the vanquished through
a common indictment and punishment of the same as criminals.

From whence will they take the standard by which to decide
about justice and injustice in a legal sense? In so far as
such standards exist by International Law, valid up to now,
further statements are not required. That a special court
for the trial was created by the Charter of this Tribunal I
also do not object to. I must, however, vigorously protest
against its use, in so far as it is meant to create a new
material law by threatening punishment for crimes which, at
the time of their perpetration, at least as far as
individuals are concerned, did not carry any punishment.

I shall then eliminate the following paragraph.

Can one expect that hereafter punishment will be recognized
as just, if the culprit was never aware of it, because at
the time he was not threatened with such punishment, and he
believed to be able to derive the authorisation for his way
of acting solely from the political aims pursued? Of what
help is a reference to the ethical laws, if such must be
first found again? According to justice Jackson's opinion,
however, the Nazi Government, from the start was never the
representative of a legitimate State which had pursued the
legitimate aims of a member of the international community.
Only from such an attitude can the Indictment for conspiracy
be understood, which is to be discussed later. In fact this
Indictment is far ahead of its time. Because internationally
recognized standards outside the positive International Law
by which the legitimacy of States and of their aims could
have been judged did not exist, any more than did an
international community

                                                  [Page 107]

as such. Slogans about the legitimacy of one's own and of
the illegitimacy of foreign aspirations served only the
formation of political fronts just as the efforts to brand
political adversaries as disturbers of the peace. In any
case they did, indeed, not create law.

Justice Jackson, declared justly, that it would have been
possible for the conquerors to deal with the conquered as
they saw fit. But, said he, non-discriminatory executions
without a final establishment of guilt would be a breach of
promise given repeatedly. For that reason he, himself,
proposed judicial proceedings which would have to differ
from the ordinary criminal proceeding by not admitting the
usual tactics of obstruction and delay by the defendants.
However, an establishment of guilt should be made, but based
on a just and fair trial. If the defendants were the first
leaders of a conquered nation which had to answer before the
law, they were also the first ones to whom the opportunity
was given to defend their lives "in the name of justice."

If this sentence is to have a meaning then it must be of
significance for interpretation of the Charter. Because it
would not be reasonable that the Tribunal was obliged to
stand exclusively by the Charter without taking into
consideration International Law recognized hitherto and the
convictions of others with regard to law. In that case the
judgement would rather become a pure dictate of force to
appeal against which "in the name of justice" would not be

The Charter may, therefore, be applied by the Tribunal only
in so far as its decrees are justifiable before the
conscience, not only formally but also materially. The
Charter itself says that nobody may be excused for a
violation of its decrees by hiding behind an order of his
government or of a superior. In that case it must apply
this, its own logic, also to itself by allowing the judge to
examine the congruence of its prescripts with the general
principles of just ways of thought. For a judge, after all,
is far more free and independent of the lawmaker than a
subordinate of his superior or a subject of his dictator.

Then there is another question, whether decrees of the
Charter are really so much in opposition to the previous and
ordinary state of law, especially to the fundamental ideas
of all rules of law, that the Tribunal cannot acknowledge
them as right or apply them. Practically the most serious
problem consists thereby in deciding what should have
precedence in the case of conflict; the Charter or the legal
maxim Nulla poena sine lege.

One has tried to justify the exceptional case of
disregarding this rule in this given instance with the
highly political Charter of the trial. Such a justification,
however, cannot possibly be recognized. The political
significance of a trial is usually apparent in its
consequences near and far, but not yet in the very procedure
by influencing the legal norms to be applied. A judge should
administer law but not deal in politics. He is called upon
still less to rectify mistakes made by the politicians.
Punishment, the establishment of which in due time was
neglected, may only be decreed by him on the strength of a
subsequent law, if he would do this also in other cases, but
not only as an exception.

Because basically the principle of the division of power
should be maintained. By this principle Montesquieu divided
the originally united power of the absolute king into
legislative, administrative and judiciary. The three
different forms of expression of State domination were to
have equal importance, counterbalance each other and so aid
in controlling one another. This system of division of
powers characterises the modern constitutional State.
Straining the point somewhat, one could define the field of
activities and competency of the three different forms of
expression of sovereign authority in stating that the
legislature has to deal with the future, administration with
the present, and judiciary with the past. The legislature
sets the standards to which life is to conform. From time to
time these must be changed in accordance with the changed
way of living. But until then they remain valid.

In so far as a mere establishment of norms of life is not
sufficient it will be formed, case by case, by the
administration. The administration itself is bound

                                                  [Page 108]

by certain norms, but on principle has free play within the
lawful bounds of its good judgement so as to be able to
respond to the daily changing needs. For it, just as for the
law making politicians, the idea of serving a purpose is

The judge on the other hand may not decide according to the
usefulness but should decide according to the law. In
general, it is not his task to create, but to judge. He has
to judge the actions after they are committed and the
conditions after they have arisen in the light of whether
and to what extent they correspond to the standards,
respectively, what juridical consequences they have brought
about. Therefore, as a matter of principle his view is
directed towards the past. In the life of the State, which
is continuously inspired by politicians looking to the
future, he is the steadfast counterpart serving as a brake.

Though he is bound by the laws decreed by the politician, he
is not merely an executive organ. On the contrary he should
control the lawmaker by re-examining the laws with regard to
their conforming, to the constitution. Therein, in any case,
according to reason, would belong the examination of whether
the principle of the division of powers was maintained.
Because just as the judge may judge only de lege latea and
must leave the decisions de lege ferenda to the lawmaker,
the latter in turn is obliged not to interfere with the
former's competency by making laws with retroactive power.

The criticism of the administration of justice of the
National-Socialist State is mainly based on its having
abandoned the division of power. By putting at the top the
political leadership idea (Fuehrerprinzip), it interfered
despotically with the competency of the judges. By means of
the police, i.e., the administration, it arrested and
imprisoned people without judicial warrant of arrest only
for reasons of political prevention, and even re-arrested
those who had been acquitted by the judge and set free. On
the other hand, for political reasons, convicted criminals
were withdrawn from the hands of justice. Thereby, quite
naturally, safety and clarity of the law were seriously

I can pass over the following paragraph because I shall come
back to that principle on another occasion.

A certain degree of protection against arbitrary judgements
and the splitting-up of law, lay in the fact that the
National-Socialist State was based on a specific ideology by
which the judge was bound. Concerning the close connection
between finding of justice and ideology the Swiss Professor
of Law, Fehr, of Berne, already in 1927 wrote in his book:
Law and Reality; Insight into the Growth and Decay of the
Forms of Law (Einblick in Werden and Vergehen der
Rechtsformen). He says literally:

  "Without ideology law floats in a vacuum .... Anyone who
  has no ideology can have no sense of right and wrong

I can also omit the following paragraphs and continue on the
next page.

In contrast to this a decisive ideological base as a
foundation of the Charter is not recognizable. As its
signatories stand on very different ideological ground we
will have to proceed, as in the International Law valid
hitherto from the liberal idea of freedom of ideology.
Therefore the legal thesis Nulla poena sine lege should be
especially sacred for it. This is also proven by the fact
that the Control Council for Germany, by abolishing the
criminal analogy of Article 2a of the criminal code, brought
the above maxim back again to all Germans most emphatically.

I shall leave out the following paragraph and continue.

Nor is an examination of the political aims connected with
the Charter of any assistance. Justice Jackson has called
the Charter and the Trials a step in the direction: "To
create a juridical guarantee, that he who starts a war will
pay for it in person." The American commentator Walter
Lippmann stated elsewhere that the system of collective
security for the prevention of wars had broken down, because
nobody was prepared to declare war on the country breaking
the peace in order to help prevent a war which did not
directly affect him.

                                                  [Page 109]

The means for combating the disease of war would have been
just as bad as the disease itself. In consequence of the
fiasco of the collective methods the thought to base
security in the future upon holding responsible those
individual persons accountable for breaking the peace
crystallised with the enemies of Germany in the last war.
And so it led to the Nuremberg trial. Taking one's starting-
point from this fact today one could say: During this Second
World War revolutionary developments have taken place. It
has driven humanity beyond the bounds of what has been the
modern age until a short time ago: The first but essential
steps to create a world State have been made.

The way to peace, as shown here by Lippmann, will be
welcomed on principle, although one still will doubt its
absolute reliability. Justice Jackson himself has expressed
doubts whether punishment will serve to intimidate and thus
help prevent breaking the peace in the future. Only one who
is certain of victory will decide to wage a war and so will
not seriously consider punishment which will reach him only
in the case of defeat. Therefore the educational issue of
this trial, to strengthen the sense of justice, seems more
important than the effect of intimidation which can also be
achieved by warning for the future. The politician will have
to learn that the principle of division of power will also
have to be observed by him, and that he will not find a
judge willing to make amends for his mistakes afterwards by
punishing on the basis of future laws. The confidence in
international jurisdiction, which today still suffers from
the suspicion of being easily misused for political
purposes, would be raised considerably through such a
decree. Therefore even from the viewpoint of political
usefulness the violation of the sentence Nulla poena sine
lege could not be justified. On the other hand, however, one
must realize that the strengthening of the belief in the
inflexibility of justice as the basic pillar of the
tremendous dynamics of political forces serves peace best.

This result can also not be questioned on the basis of the
individual considerations presented by the representatives
for the defendants.

The French Prosecutors have pointed out that an active
international law could not be imagined without
international morals, and that a moral code has to precede
all claims for freedom by the individual as well as by the
nations. These certainly are facts well worth considering.
Correctly considered, however, they speak only for my
viewpoint that the strengthening of the sense of justice
must not begin by violating it.

When the French Chief Prosecutor declared that without
punishing the chief culprits of Nazi Germany there could be
no future belief in justice, then obviously he went too far.
Justice does not grow out of obtaining satisfaction for the
violated sense of justice at any price. Otherwise we should
quickly arrive again at reprisals, at the endless chain of
vendetta. No justice demands moderation and consideration of
motives and counter-motives. And there the one-sided action
taken only against members of the Axis Powers violates the
idea of justice. It is impossible to justify it by a direct
violation of it, that is, of the otherwise commonly
prevailing rule: Nulla poena sine lege. The British Chief
Prosecutor himself declared the possibility of subsequent
legislature to be one of the most offensive doctrines of the
National-Socialistic legal system. With this he meant that
the possibility of punishing an act already marked as a
crime does not mean a change of the legal situation but only
its logical further development, and is therefore
permissible. I do not at all want to contest the institution
of the Tribunal thereby justified by him. Rather the
question arises whether this Tribunal is obliged to punish
even though no penal law can be found which threatened the
offences with punishment at the time of their commission.
The affirmation of this question would go much farther than
the National-Socialist judicial procedure which is rejected
so vehemently by the British Chief Prosecutor.

Moreover, the point is that the Charter, if it did not only
presume, but possibly also established, the basis for the
punishability of acts referred to by it would have had to
state this clearly and unambiguously. The passage involved
in Article 6 of the Charter completely lacks such
distinctness. It reads:

                                                  [Page 110]

  "The following acts (or any one of them) are crimes
  coming within the jurisdiction of the Tribunal."

This may be interpreted in the sense of a mere regulation of
competence as well as, even though with difficulty, a
regulation first establishing punishability. Therefore, this
passage must in any case be interpreted in favour of the
defendant according to the established legal principle in
dubio pro reo. The following phrase:

  "for which there shall be individual responsibility"

and the material regulations for punishment quoted in the
following paragraphs present, according to their wording, no
reason for doubt as to their interpretation. However, they
contain only modifications for an established punishability.
The Tribunal may decide whether or not and to what extent
they are compatible with the principle Nulla Joena sine

Most difficult for me to understand is the viewpoint of the
American Prosecutor. On one hand he passionately disavows
all legal arbitrariness of the Nazis. On the other hand he
is not prepared to acquiesce in the punishment of the
defendants only for those crimes which were not only
considered punishable at the time of being committed but
were also actually threatened with punishment. On one hand
he does not want executions or punishment without first
having established guilt in a fair manner. On the other hand
he demands a strict application of the Charter even though
it contains new law surprising to the defendants. On one
hand he wants the trial to appear to future generations as
the fulfilment of the human yearning for justice. On the
other hand, in the face of objections to the Charter, he
bluntly presumes upon the power of the victorious, who
really could have made short shrift of the defendants.

Now, I omit the next page and continue on Page 18, second

As far as the political side of this trial is concerned I
have already stated why it must not exert an influence on
its outcome. I merely wish to point out here that a policy
which is carried out by the victors on the vanquished and
therefore may be characterised as one of "the least
resistance" has once before proven to be a failure.

I turn now to Page 19 to "Conspiracy".

Of the crimes of which the defendants are accused conspiracy
is most extensive as regards time and object. Professor
Exner, in his capacity as a University teacher of criminal
law, occupied himself in particular with the importance of
the legal conception for our process.

In order to save time by avoiding a duplicate report,
Professor Exner has placed the result of his research at my
disposal. In conformity with him I have to present the
following regarding this question:

The concept "Conspiracy" belongs to the sphere of Anglo-
American law. There, however, it is in no way uncontested,
rather, remarkably enough, some opinion in England has it
that this conception is long since obsolete: "It has been
said that in England this law has become entirely disused."

In these proceedings, it is a different point that matters.
The concept of "Conspiracy", as used by the prosecution, is
entirely unknown to German law. I would like, therefore, to
begin my short legal argument with two questions which give
rise to doubts.

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