the defense 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 defense, considerably to simplify technically that part of the trial which is now beginning, will be realized by my speech.

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 fulfill. 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 Secretary General of the Tribunal for having placed at my disposal the documents of a decisive nature and very important literature. Without this chivalrous assistance it would not have been possible, under the present conditions in Germany, to complete my work. The literature accessible to me was published predominantly in the United States. Knowing the vast French and English technical 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, however, 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 forego the use of the scientific literature published in the former German sphere of control. In this way even the semblance of a pro domo line of argumentation will be avoided.

Because of the short time at my disposal for this speech and, at the same time, owing to the abundance and difficulty 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 argumentation for the listener. 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 today, tomorrow, and thereafter.

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 open.

If this is so, why then make any statements at all here on the great fundamental legal questions?

The British Chief Prosecutor even made it the central theme of his great address to examine the relationship of the Charter, where our question is concerned, to the international public law at present valid. He justified the necessity of his arguments as follows: It is the task of this Tribunal to serve humanity, and this task could only be fulfilled by the trial 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 international law at present valid.

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 serve historical research students work. 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 evidence.

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, penalizes 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 behavior, not before himself nor before others.

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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 omissions.

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 overlook.

Now the question as to whether the penal law contained in the Charter is ex post facto penal law does not present any difficulties 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 rules of international law are the subject of controversy?

Let us take the first: A stipulation of the Charter is ambiguous and therefore needs interpreting. 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 not got an ex post facto law before us.

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

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 is the core of the world peace order which still continues to be equally valid today. War which it prohibits 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, but not only morally demanded, but also long overdue in the course of legal developments; in fact it is

simply the logical consequence 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 situation, 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 definitions2 from a practical point of view3, 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.R

After the negotiations had been concluded, Aristide Briand, the other of the two statesmen, from whose initiative the pact, which in Germany is often called the pact to outlaw war (Kriegsaechtungspakt), springs, declared when it was signed in Paris:9

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

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

'Note of Secretary of State Kellogg to the French ambassador

27 Feb 1928, App. I, Exhibit 1, page 3, passage (2).

Ibid. App. I, Exhibit 1, p. 3, passage (4).

Ibid. App. I, Exhibit 1, p. 3, passage (1).

Ibid. App. I, Exhibit 1, p. 4, passage (5).

Ibid. App. I, Exhibit 1, p. 3, passage (2).

Ibid. App. I, Exhibit 1, p. 4, passage (6).

Ibid. App. I, Exhibit 1, p. 3, passage (4) and p. 4, passage (6).

Note of the United States Government to the Governments of Great Britain, Germany, Italy, and Japan of 13 April 1928, App. I, Exhibit 2, p. 5, passage (1).

'The speech of the French Foreign Minister is printed in The Department of State, Treaty for the Renunciation of War, United States Government Printing Office. The quotation is to be found on page 309.

The change is supposed to be the following:

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.10

It is also the basic conception of the Indictment at Nurnberg. 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 remarkably quickly. This to the horror of those who wanted to see the consequences-all the consequences drawn from the catastrophe.

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.

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But the more detachment we achieve, the clearer it becomes that he-by making happy use of his own preparatory work and that of others12-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 best be 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.

10 Commentaire du Pacte de la Societe des Nations selon la politique et la jurisprudence des organes de la Societe. Paris 1930. (See especially p. 73 seq.) Further in the supplements for 1931-1935: ler Supplement au Commentaire du Pacte (1931) p. 13 seq.; 2e Suppl. (1932) p. 17 seq: 3e Suppl. (1933) p. 18, 39; 4e Suppl. (1935) p. 19, 99.

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12

Congress. Rec., Proceed. and Deb. of the 2nd Sess. of the 70th Congr. of the U.S. vol. LXX-Part. 2, p. 1333.

See Baker, Ray Stannard, Woodrow Wilson and World Settlement. New York 1922 passim.