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with an adequate adaptation to found thereon a personal penal
responsibility.” Thus for Dr. Seidl, International Law is static when he believes he can draw favorable conclusions therefrom, but this law is also in the process of evolution when it condemns his client.
Such dialectics are very weak, which make use of paralogism and are fallacious. Maitre Seidl is well versed in the art of sophism; but he convinces no one.
The immunity of the Chiefs of State and of their associates was hardly conceivable when they accepted the principle of the submission of wars to the restrictions and rules of common law, conventions and the rights of people.
This immunity becomes intolerable, as soon as they free themselves of every rule, and under pressure of the universal conscience an evolution of international custom takes shape against it. I have already shown in concluding my statement in February last, I will not revert to that point. It should be enough to add that the Charter of 8 August 1945, considering the work of the different commissions of war crimes of 1940 at the capitulation, maintained the conclusions of a Frenchman M. de Lapradelle at the 1919 War Guilt Commission. It is because of their acts committed on behalf of the German State that the defendants are arraigned before you—and if it is necessary that law should reinforce the authority of custom, the Statute of London, drawn up in accordance with the significance of the evolution of common law in course of formation, justifies still more our study of the defendants' responsibility in regard to the crimes committed for such a State. Article 6 of the Charter concerns only with crimes committed for such a State.
The impression from the final pleadings is given that most of the Defense Counsels put all their hopes on a narrow juridical or pseudo-juridical reasoning.
Numerous questions were debated. Are there just and unjust wars, defensive wars and wars of aggression, is there, yes or no, a world-wide juridical conscience, are there unequivocal criterions of aggression? This is what makes the defense anxious, not knowing to what extent it is expedient to punish those who have collaborated in the machinery of extermination.
When the Defense Counsels speak of “law in force” it is to deny to this Tribunal the right to condemn, and Dr. Jahrreiss denied all authority to the law "such as it should be conceived" in the light of morality and progress. All forget that the law in force is not only the law of the past, the only one which they invoke, but that the law in force is also the one that the judges invoke in a concrete manner from the Bench. All forget that juris
prudence evolves with the times. There where there is no written law, one can only speak of the preceding tendencies and find out if they are still valid and can be invoked. In any case, the Charter must be applied.
But let us not follow this any further. We would ourselves confuse the issue.
The sole fact of this trial, the fact that dominates all others, is the one of the methodical, systematic extermination of all the men who occupied the space coveted by Germany.
Other crimes have not certainly been committed, but only as means to the end. One is tempted to say secondarily and accessorily, so much is one overwhelmed to such an extent by the atrocity of the final crime.
One should be impressed by this atrocity, one should understand well the danger that such a precedent is created for humanity and therefore demand adequate punishment.
Atrocity of the State-Committed Crime These men's crime is not a simple one, we have already shown that. The common criminal knows his victim, he sees it. He strikes him himself and knows the effect of his blow. Even if he is only an accomplice he is never, morally and psychologically, sufficiently far removed from the chief perpetrator not to share to a certain extent his apprehension and reactions when the blow is delivered and the victim falls.
Committed by the State machine, murder, or any other crime, becomes anonymous. Nobody bears the chief responsibility. Everybody shares it, those who, by their presence maintain and support the administration, those who conceived it, those who willed it, as well as he who issues the order. As for the executioner, he repeats to himself: "Befehl ist Befehl”, "An order is an order" and he carries out his killer's task.
Those who decide do it without shuddering. They have perhaps, not an accurate, concrete idea of the consequences of their orders. Thus the amazement of some of the accused in the few minutes after the showing of the film about the camps must be understood. As for those who promote the execution of the crime by their general cooperation in the work of the Party and State, these have the feeling of being passive witnesses of a scene in which they are not concerned. Indeed, there is no punishment to be feared. In the German scheme the State and the Party are strong, and determined to remain so for a thousand years. They have destroyed Justice.
In the International scheme, too, the prevailing code ensures immunity or at least is believed to ensure it. Moreover, there exists no permanent international jurisdiction that can stand up against
gangster States. As for the possibility of a military failure, nobody stops to consider it in view of the seemingly thorough precautions taken. It is in fact remarkable that the culmination of the massacres coincided with due consideration for the delay necessary for the operation of the gas chambers, with the period in which the State and regime believe in the certitude of victory, or have not yet taken the omens of defeat seriously. It is really the perfect anonymous crime as imagined by the French moralist when he propounded the case of the mandarin as a test of moral conscience. And conditions were all in favor of absence of reaction. The facts have demonstrated that none of these men felt a decisive recoil in these conditions.
Most of them, indeed, feel that they had played a part in the tragedy. They have, I think, been more intent on relieving their conscience than on attempting to deceive their judges by casting their guilt on their neighbors. Few of them have had the courage to acknowledge, as did Schirach and Frank, that they were components and part of the whole system, and as such could not evade their responsibility. At the risk of letting the guilt fall upon the German people which proved incapable of rejecting their evil master, the others excused themselves. They attempt, in the exposition of their case, to minimize responsibilities in the hope of conjuring them away, but since it is true, as was stated by Severing and previously by the Mayor of Oranienberg, and the Mayor of Buchenwald and was confirmed by Frank, that it was whispered all over Germany that people died in camps as everybody now knows, do they hope to make us believe that they alone were in ignorance thereof?
The less guilty among them, if one can establish a hierarchy among “major criminals", did not dare to object, but their criminal cowardice had such appalling consequences that there cannot possibly be any extenuation of penalty.
As we see now, State-committed crime in a regime where State and Party are one, and where there is no popular control through lack of freedom of thought, freedom of expression and lack of free elections, State-committed crime is of all crimes the easiest to commit subjectively speaking. Moreover, the technical progress made the world over has put almost every natural force at man's service. His capacity for evil has been considerably increased thereby.
Moral restraint has meanwhile been slackened by the pursuit of materialistic gratification which is also the corrupt fruit of material progress unbridled by intellect.
In general, criminality seems to increase in every state despite the highly improved methods of repression. In the international
scheme the process is similar. It is only on a larger scale, because so far there have been no means of repression on an international scale. Industrial revolution and the development of natural sciences have multiplied the virtual power of States. If the State concentrates in its hands natural wealth in its exploitation, if it accentuates its grip upon credit by monetary manipulations, increase of taxation multiplication of free or forced loans; and still further bind the populations to its fate by the development of public charity: control thought by radio propaganda ; use to this end eloquent propagandists capable of stirring blind mob passions within the most scattered and the most peaceful of men; if this State at the same time annihilates in its opponents every mode of expression, prevents all popular control, all, including private, criticism it becomes a despotic ruler holding in his hands tremendous means of action for better or worse. Every criminal technicality is within its reach and it can make use of them without restraint, unless, Gentlemen, you insert the element of sanctions in International Law. It must henceforth be possible to put an end to the criminal activity of a gangster State through the power of a super-State organization directed by a legal institution of the same kind, otherwise the freedom of nations is doomed. The weapons of revolt fell from their hands the day when States and States alone could possess methods of destruction against which the courage of citizens remains helpless. Operated by a small number of men devoted to the criminal regime, these arms which are the property of the States can drown in blood the slightest attempts at resistance, and if revolt against tyranny remains the most sacred of duties, such revolt is now hopeless. This is the danger, and Germany succumbed to it. It is true that favourable conditions were present there all at the same time. Under the impulse of the industrial revolution which ever since 1850 was more violent in this country than in any other, a sweeping change in social standards has taken place, the population meanwhile changing from rural and agricultural to urban and industrial. From this, there resulted in a lowering of the spiritual level with disastrous consequences, since the bourgeoisie had received no political education under the Empire. Deliberately kept away from public affairs by their past rulers, the German masses, where the industrialist upper class and proletariat are concerned, were interested only in the economic development of the Reich, and where the middle class is concerned, only in the Army and in the future of the Reich. When, after the first war, the Germans were forced to suffer the disillusionments of defeat; when, in a common and embittered environment all the rancour and resentment as described by defendant Goering at the beginning of his testimony was added thereto as well as the bitter feeling of ma
terial and social downfall; when in particular youth strove to materialize its hopes into a concrete reality, Pangermanism then awoke, was spread, popularised and came within the reach of all the dissatisfied. At the same time, the old antithesis between vitalism and intellectualism, between culture and civilization, healthy eagerness and decadent lassitude, the cult of life and the cult of intellect has been awoken and crystallized for the use of simple and puerile brains in the form of the dynamic antithesis between the Nordic Aryan and the Semitic Jew. Appropriate education has easily imposed this biologic materialism. The ground had long been ready. The German is particularly attracted to inculcated doctrine because it alone can make up for the lack of personal, independent discipline which is characteristic of him on the intellectual and moral plane. He loves anything that can be recited as a creed simultaneously admitted by everybody, and as a stereotyped phrase easy to make use of on all occasions. Young Germans therefore learned for their Abitur examination the six races allowed by Guenther in the same way as they learned Grammar, and did not dream of doubting the former any more than they doubted the latter. And when the German mind reproached nations as lively, as attached to their soil, to their tradition, to their supple and varied human culture, such as England and France, contenting themselves with a miserable and artificial intellectualism, while it reproached them with the crime against life (and Dr. Stahmer was the echo thereof)the German mind created for itself, as a result of the course and facile instructions it claimed to inflict upon all, an intellectualism different to ours in its danger and artificiality. The aim of these so-called ethics of Life was a practice and a doctrine of pure collective, social pseudo-scientific, biological—materialistic opportunism. This aim was the sterilizations, the physiological experiences in the camps, and 15,000,000 persons dead. The reflection of the old French thinker flashes irresistibly through our minds at this result: "Science without conscience is but ruin of the soul”-NeoMachiavellism, of which Goering gave an example in his statement, took root.
I read lately in a final pleading somewhere that right in itself does not exist, and that the search for the boundaries between right and wrong is determined by historical and national standards (Dr. Nelte). Hitler had already said: “That which is right is that which is profitable to the nation” and Frank paraphrased thus the testimony of his Defense Counsel, "What is profitable for the people is right. The common interest has priority over the individual interests”. While reading this, I think of the answer which would have been given by the absolutist Bossuet, who knew