The Nizkor Project: Remembering the Holocaust (Shoah)

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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

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

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

                                                  [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

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

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

                                                  [Page 303]

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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