Already on the basis of these establishments and examinations there can hardly be any doubt that a crime against the peace, as it has found its factual definition in article 6, paragraph 2a, of the Statute, does not exist. This section of article 6 of the Statute does not have a sufficient basis in existing international law.

I omit the following important statements as well as the following statements concerning the secret German-Russian treaty of 23 August 1939, which deals with the jurisdiction of the Tribunal. The Tribunal has to consider officially whether the jurisdiction still exists concerning this secret treaty.

Moreover, the following is to be said about article 6, paragraph 3 of the Charter: The constitutive facts of a conspiration, as they have been expressed in article 6, paragraph 3, are a typical institution of Anglo-American law. The Continental European law does not know such a state of criminality. But there cannot be any doubt that international penal law, insofar as there exists any in the restricted and actual sense, and if one does not understand in it the standards which are to be observed in the application of national or foreign law, also does not know the concept of conspiracy as a criminal state of facts.

But it is not only the question of the prevailing international law and the concordance of the Charter with the same, which is to be put to test. The issue is rather also the answering of the following question:

In the opening speeches of the four chief prosecutors and also in the discussions prior to the trial concerning the legal bases of the trial, two entirely contradictory arguments were introduced. While some argued that the Charter was a complete expression of the prevailing international law and was in agreement with the common legal conviction of all members of the international legal community, the others asserted that it was one of the main tasks of the International Military Tribunal now being instituted to develop international law further. This latter conception for instance, stands out clearly in the report of the American Chief Prosecutor to the President of the United States of 7 June 1945. Here it is stated verbatim among other things: "In initiating this trial, we must also remain aware of the aims with which our people assumed the burdens of war. After we entered the war, and our men and our wealth were mobilized to eradicate this evil, there was the general feeling among our people that out of the war there should arise unmistakable rules and a practical machine from which anyone who entertains thought of a further predatory war should

realize that he will be personally held responsible and that he will be personally punished."

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Or in another part of this report, the following is stated literally: According to the International Law of the 19th and early 20th century, the waging of war was not generally considered as unlawful or as a crime in the legal sense. Summed up, the prevailing doctrine held that both parties in any war were to be considered as being in the same legal situation and therefore had the same rights." The legal considerations in the report then actually conclude with the following challenge: "* An attack against the fundamental principles of international relations must be considered as nothing less than a crime against the community, which rightly must protect the integrity of its fundamental agreements by punishing the aggressor. We therefore propose to raise the challenge that a war of aggression is a crime and that modern international law has abandoned the justification according to which he who instigates or wages a war acts in accordance with the law." And as a matter of fact, it would not be necessary to raise the demand for a penal law if the action under consideration already had been threatened with punishment by existing law.

It is obvious that the fulfillment of such a demand by a court of law, regardless of whatever legal bases there may be for its proceedings, would be contradictory to a principle derived from the penal legislation of nearly all civilized nations and which finds its expression in the rule "nulla poena sine lege" meaning that an act can only be the object of punishment if the punishment has been provided for by a law before the act was committed. This state of affairs seems all the more remarkable, since the rule "nulla poena sine lege" is a principle anchored in the constitution of practically all civilized nations. Thus for example, it is contained in Article 39 of the English Magna Charta of King John in 1215, in the North American Constitution of 1776 and in the declarations of the French Revolution in 1789 and 1791. This principle of "nulla poena sine lege" is not only contradictory to the assumption of a crime against peace, such as is to be defined by the Tribunal in the further development of prevailing international law as a punishable act in the opinion of some of the prosecutors but it is also especially contradictory to create now also in the further development of international law an independent state of criminality of conspiracy by judicial opinion. In this it cannot differentiate whether this conspiracy has as its aim the commitment of a crime against the peace or the commitment of a crime against the customs of war. Also, the assumption of a common plan or an agreement to commit war crimes as an independent state of criminality is not

compatible with the principle of "nulla poena sine lege". Applicable are rather here also, as already rightly expounded by the French chief prosecutor, the rules pertaining to participation according to the native law of the perpetrator or according to the local law of the place of perpetration. These rules pertaining to participation will be limited under the given circumstances to the extension of the threat of punishment for cases of complicity, instigation and assistance.

Apart from his participation in the general plan or complicity, as defined in count I of the Indictment, the defendant Rudolf Hess, within the limits of his personal responsibility for war crimes and crimes against humanity, is charged by the Prosecution for the contents of only one document, i.e., document GB-268 (R-96).

This is a letter of the Reich Minister of Justice to the Reich Minister and Chief of the Reich Chancellery of 12 April 1941, which deals with the introduction of punitive laws against Poles and Jews in the incorporated Eastern territories. The defendant Rudolf Hess plays a part therein only in so far as the letter mentions among other things that the deputy of the Fuehrer had proposed the discussion of the introduction of corporal punishment. If one takes into consideration that the staff of the deputy of the Fuehrer alone comprised 500 officials and employees and that for questions of legislation, there was a special department which dealt directly with the several ministries, it seems very doubtful, whether the defendant Rudolf Hess was personally concerned with the matter at all. In this connection I refer to the affidavit of the witness Hildegard Fath, Exhibit Hess No. 16. Considering however that the measure proposed for discussion by the deputy of the Fuehrer was not introduced, the knowledge of the defendant should not matter very much. Without it being necessary to probe any deeper into the subjective facts of the case, it can be said that, as can be deduced from the penal law of all civilized countries, there is here not even an attempt. The attitude of the deputy of the Fuehrer, as shown in the letter of the Reich Minister for Justice is penally irrelevant. It may be entirely left out of consideration whether a penal law would have been violated if the measure put up for consideration had effectively found its legislative outcome in a Reich law.

Another document submitted by the Prosecution is USA Exhibit 696 (062-PS). This refers to the directives of the deputy of the Fuehrer of 13 March 1940, dealing with the instructing of the civilian population as to the proper attitude to be taken in case of landing of enemy aircraft or parachutists on German Reich territory. This is the same document for which I applied for a correc

tion of the translation because the translation from German into English was in my opinion not correct. This document however has been included neither in the trial brief submitted by the British Prosecution nor mentioned by Colonel Griffith Jones on February 1946 when he dealt with the personal responsibility of the defendant Rudolf Hess. Considering however that this directive has been officially submitted as documentary evidence, it becomes necessary to deal with it briefly.

Occasion for this directive of 13 March 1940 was the fact that the French Government officially and by radio gave instructions to the French civilian population as to how they were to conduct themselves in case of landings by German aircraft.

On the basis of those instructions of the French Government, the Commander-in-Chief of the German Luftwaffe considered himself obliged for his part to inform also on his part the German population accordingly via the official Party channels. He, therefore, issued a directive about the attitude to be adopted in the case of landings of enemy aircraft or parachutists, which was used as appendix to the mentioned order of the Fuehrer's deputy of 13 March 1940.

This directive, however, does not contain anything which is contrary to the laws and customs of warfare, as they have been expressed, for instance, in the Hague Convention on Land Warfare. This applies particularly to No. 4, which contains the instructions either to arrest or to "render" enemy parachutists "harmless". There cannot be the slightest doubt that according to the text as well as to the spirit of No. 4, this was only meant to say that enemy parachutists were to be fought and annihilated in combat if they did not surrender voluntarily and tried to prevent their arrest by using force, particularly by the use of firearms. This becomes evident from the word "or" alone. First of all their capture was to be attempted. This alone in the interest of the Intelligence Service. Only if this was made impossible by resistance should they be "rendered harmless", that means annihilated in combat.

Any other interpretation of this instruction would not only be contrary to the text and the spirit, but beyond that would also be contrary to the fact that up to the French campaign the war had been waged according to the rules which had been established, among other things, in the Hague Convention on Land Warfare and that, at any rate at that time, March 1940, the war had not yet developed into the mutual struggle of annihilation as it was to become after the outbreak of the German-Russian war. The fact that another interpretation is absolutely impossible, is also evident from the so-called "Commando Order" of the Fuehrer, dated 18

October 1942, which has been presented by the Prosecution under Exhibit USA 501 (498-PS). The deliberations for this order, for which quite different reasons existed by the way, and the issuing of this "Commando Order" by Hitler himself, in spite of the opposition of the Wehrmacht High Command and the Chief of the Wehrmacht Operational Staff, had been entirely superfluous, if the Commander-in-Chief of the Luftwaffe had already in March 1940 issued instructions which served the same purpose. It is furthermore expressly specified in figure 4 of the Fuehrer order of 18 October 1942, that captured members of commando groups were to be handed over to the SD.

As the German text of this directive to the order of 30 March 1940 is completely unequivocal and does not leave any doubt, I refrained from using additional evidence about this question. In the case, however, that the Tribunal should not share this assumption, it could not be avoided for the complete clarification of the facts that the Tribunal procure on its own initiative the instructions which the French Government issued at the beginning of the year 1940 to the French civilian population in case of the landing of German aircraft or German parachutists.

It is not necessary to deal closer with document GB-267 (3245PS) which is also charged to the defendant Hess, as the contents of this document can under no circumstances be considered a crime against the rules of warfare or against humanity, if the above mentioned principles are admitted.

Besides as an individual person, Rudolf Hess is also accused as a member of the SA, the SS, the corps of political leaders, and the Reich Cabinet. As far as the membership of the SA and the SS is concerned, more detailed explanations are not necessary. From the documents presented by the Prosecution, it becomes evident that the defendant Hess had only the honorary title of Obergruppenfuehrer in those two organizations. No command or disciplinary powers were connected with it.

As deputy of the Fuehrer, however, the defendant Rudolf Hess held the highest office which existed in the corps of political leaders. It cannot be my task to take the position that I comment on every detail of the accusation made against the corps of the political leaders within the framework and in application of Article 9 of the Charter which is characterized by its motion to declare the corps of political leaders as a criminal organization. Considering the fact, however, that the defendant Rudolf Hess is not the only political leader there was, a few fundamental remarks seem to be justified.

According to Article 9 of the Charter, the Tribunal can state to