ards 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 counterpole 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 reexamining the laws with regard to their conforming to the constitution. Therein, in any case, according to reason, would belong the examination whether the principle of the division of powers was maintained. Because just as the judge may judge but, "de lege latea" and must leave the decisions "de lege ferenda" to the lawmaker, the latter is obliged in reverse not to meddle with the former's competency by giving 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 meddled 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 reason of political prevention, and even arrested others that 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 On the other hand for political reasons, convicted criminals were withdrawn from the hands of justice.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 endangered.

Thereby a certain degree of protection against arbitrary judgments 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 Hans Fehr Bern already in 1927 wrote in his book, "Law and Reality; insight into the growth and decay of the forms of law" ("Einblick in Werden und Vergehen der Rechtsformen"). He says literally:

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"Ohne Weltanschauung schwebt das Recht in luftleeren Raum * * Wer keine Weltanschauung besitzt, kann auch keine Rechtsanschauung haben *

Translation: "Without ideology law floats in a vacuum

Anyone who has no ideology, can not have a sense of right or wrong either *

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 start out in it, 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.

Nor does an examination of the political aims connected with the Charter help out. Justice Jackson has called the Charter and the Trials a step in the direction: "To create a juridical guarantee that, 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 breaker of peace in order to help prevent a war which did not directly affect him.

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 crystallized with the enemies of Germany in the last war. And so it led to the Nurnberg 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 sphere 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 be a warning and 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 deterring 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 mend 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. And so even under the viewpoint of political usefulness the violation of the sentence "Nulla poena sine lege praevia" could not be justified. On the other hand, how

ever, one must realize that the strengthening in the belief of the inflexibility of justice as the basic pillar of the tremendous dynamic 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 preceed 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 in the future there could be no belief in justice by not punishing the chief culprits of Nazi Germany, then obviously he went too far in the enthusiasm of the speech. Justice does not grow out of obtaining at any price satisfaction for the violated sense of justice. Otherwise we should quickly arrive again at the endless chain of horrors, at vendetta. No, justice demands moderation and consideration of motives and counter-motives. And there the one-sided action itself against members of the Axis powers violates the idea of justice. It is impossible to justify by it a direct violation against it, that is, against the otherwise commonly prevailing rule: "Nulla poena sine lege praevia".

The British Chief prosecutor himself declared the possibility of subsequent legislation for one of the most offensive doctrines of the National Socialistic legal terminology. 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 logic development, and therefore is permissible. But 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 offense with punishment already at the time of their committment. The affirmation of this question would go much further than the National Socialistic judicial procedure rejected so vehemently by the British chief prosecutor. He did not present the slightest reason for it and therefore he himself seems to disavow it.

Moreover he should be prepared to admit that the Charter would have stated clearly and unambiguously, if it did not only presume but possibly also establish the basis for the punishableness of acts referred to by it. The passage involved in Para. 6 of the Charter completely lacks such distinctness. It reads:

"The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal

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and may be interpreted in the sense of a mere regulation of competence as well as, even though with difficulty, a regulation which first establishes punishableness. Therefore, this passage must in any case be interpreted in favor of the defendant according to the established legal principle "in dubio pro reo". The following sentence:

"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 punishableness. The Tribunal may decide whether or not they are compatible with the principle "Nulla poena sine lege praevia”.

Most difficult to understand for me 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 also actually threatened with punishment. On one hand he does not want executions or punishment without first having accomplished the determination of guilt in a fair manner. On the other hand he demands a strict application of the Charter even though it contains new law surprising 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 work with the defendants.

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

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 conception "conspiracy" belongs to the Anglo-American law sphere. There, however, it is not at all uncontested, rather the opinion is noteworthy as being represented in England that this conception is long since obsolete: "It has been said that in England this law has become entirely disused." (Report of a judge in Regina . Parnell and others-Kenney, Selection of Cases illustrative of English Criminal law, Oxford 1935, p. 145). 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.

1. May a criminal procedure, which is bent on realizing justice, use legal concepts which are and always have been utterly alien to the defendants and to the legal trend of thought of their people?

2. How would this be consistent with the rule, Nullum crimen sine lege praevia, a principle which the British chief prosecutor has acknowledged as a fundamental principle of civilized criminal law jurisdiction? Can it be honestly stated that already before 1939 not only the initiating of an illegal war was held to be an act punishable individually, but moreover a "conspiracy" for initiating such wars? The affirmative answer to this question given by the prosecution has surprised not Germany only. May I clear up, in this connection, a misunderstanding. It has been said that the National Socialist state itself had issued criminal laws ignoring the rule: "Nullum crimen sine lege", so that the defendants had no right to invoke this rule. It is by no means my purpose to defend National Socialist criminal law, but honesty compels me to say that this is an error. The Third Reich has-as mentioned before-issued three laws increasing the penalty for an action with retrospective effect by applying the death penalty to acts which carried when committed, prison sentences only. But in no case has-till now-a lawful act been declared punishable, nor an act considered not to be a crime, retrospectively converted into one. And this is the case here. But the Charter, which I follow now, has enjoined the use of the concept of "Conspiracy". I do not, therefore, go any further into these questions. At any rate, it would appear that if such a concept is to be applied to Germans, this could only be done with all restrictions imposed by equity.

Anglo-American law defines conspiracy as an agreement between a number of persons for accomplishing crimes. BLACK, Law dic-. tionary 1933: "a combination or agreement between two or more persons for accomplishing an unlawful end or a lawful end by

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