may have made the existence or continued existence of a general machinery of collective security the prerequisite for the validity of the treaty.

The same applies to unilateral assurances of non-aggression as to the bilateral treaties.

Many bilateral non-aggression pacts were concluded, and several unilateral assurances were given. In some cases the political and in some a legal concept of aggression, and even a number of such legal concepts side by side, determine right and wrong. The German Reich also concluded a series of such pacts. They have been drawn upon by the prosecution as an argument. One must examine whether all these treaties were still in force at the critical moment. This examination must be left to the individual defense counsel. But if the German Reich did attack in an individual case in breach of a non-aggression pact which was still valid, it committed an offense in international law and is responsible therefor according to the rules of international law regarding offenses in international law. But only the Reich. Not the individual, even if he were the head of the state. This is beyond all doubt according to the international law at present valid.

It is unnecessary even to speak about this. For up to the most recent times not even the possibility has been mentioned, either in the Manchurian, or in the Italo-Abyssinian or in the RussoFinnish conflict, of instituting criminal proceedings against those people who were responsible, on the Japanese, Italian or Russian side, for planning, preparing, launching and prosecuting the war, or who simply participated in these acts in any way. And it was certainly not because matters had, paradoxically enough, not been thought out to the end, that they were not prosecuted. But they were not prosecuted because this cannot happen as long as the sovereignty of states is the organizational basic principle of the whole inter-state order. One can have one or the other, but not both.75

Should things reach the point where, according to general world law, the men who participated in the planning, preparation, launching and prosecution of a war forbidden by international law could be brought before an international criminal court, the decisions regarding the state's ultimate problems of existence would be subject to super-state control. One could of course still call such states sovereign, but they would no longer be sovereign. In his paper of late 1943 which I have already mentioned several times and which he wrote after the Moscow conference of the 1

75 Fischer Williams, Sanctions under the Covenant (Br.YB, 1936) / App. II, exhibit 48, P.135 passage (2), is right.

November 1943, Kelsen again and again repeats the phrase that, in questions of breach of the peace, the liability of individuals to punishment does not exist according to the general international law at present valid and can not exist on account of sovereignty.76 For Europeans, at any rate, the state has for the last four centuries, above all since the ever more rapid advances made by the idea of the national state, gained the dignity of a superperson. Of course acts of state are acts of men. But they are in fact acts of state, i.e. acts of the state carried out by its organs and not the private acts of Mr. Smith or Mr. Robinson.

What the Indictment is doing when, in the name of the world community as a legal entity, it wants to have individuals legally sentenced for their decisions regarding war and peace, is, when one looks at it from the angle of European history, to look upon the state as one would look upon a private individual, indeed, more than that, what it is doing is to destroy the state mentally. Such a charge, the moral justification of which is not my concern, such a charge is as we have already shown-incompatible with the very nature of sovereignty and with the feeling of the majority of Europeans. It seems, indeed, as though not only Europeans feel that way. In 1919, in Paris, it was the American delegates at the War Guilt Investigation Committee who opposed most strongly any legal sentence on the Kaiser for the very reason of the incompatibility of such a procedure with the sovereignty of the State." And it is impossible to recognize the idea of sovereignty more strongly than Kellogg did eight years later during the negotiations in connection with the Pact of Paris, when he declared: Every state is the sole judge of its behavior with regard to questions affecting its existence.

There are epochs which idolize the sovereignty of the State, others anathematize it. Some idolize and anathematize it simultaneously. Our epoch does so. Perhaps we are living in a period of transition. Perhaps a transformation of values is taking place. Perhaps world community will become the supreme political

77

Collective and Individual Responsibility

* * * pp.534, 538, 539, 540, 542/ App.II, exhibit 57, p.167, passage (6); p. 168, passages (8) and (9); p.169, passages (10) and (11); p.170, passage (13) and p.173, passage (18).

Scott, James Brown, emphasizes the great services which the American delegates did at that time to law (in House-Seymour: What Really Happened at Paris-New York 1921—App. II, exhibit 43, whole of page 122). Williams E.T., The conflict between Autocracy and Democracy (A.J., vol.32, 1938, page 663 seq.p.664.

Kelsen, Hans, Collective and Individual Responsibility * * * p.541/ App. II, exhibit 57, p.171, passage (15) and p.172, passage (17), See also Borchard, Edwin: Neutrality and Unneutrality (A.J., vol.32, 1938, p.778 seq.) App. II, exhibit 53, p.155, passage (17).

treasure for the peoples, in place of their own particular States, which have at any rate held this position hitherto. Perhaps we shall reach a point where the unleashing of a war deserving moral and also legal condemnation will, for the general legal conscience, constitute high treason against the world community. Perhaps, we shall reach a point where it will be permissible, or even compulsory, to betray a government which starts such a war to foreign countries without a legal justification for calling this high treason towards one's country. At the moment in no nation is there a majority-let alone unanimity-in support of this opinion. The punishment of individuals by the legal family of nations for breach of the peace between states can thus be ordered only if the fundamental principles of the international law currently valid and the scale of values which has for centuries been firmly rooted in the feeling of the European nations, are abandonedthat scale of values according to which the state, one's own sovereign state, forms the indispensable foundation for free personality.

The Indictment mentally wipes out the German state for the time when it stood upright in its full strength and acted through its organs. It must do so if it desires to prosecute individual persons for a breach of the peace between states. It must turn the defendants into private individuals. But it then combines them -so to speak on the private plane-with the help of the criminal law concept of a conspiracy which is taken from Anglo-Saxon law and is strange to us, gives them the many millions strong substructure of organization and groups which are designated as criminal, and thereby again places a superperson before us.

In as far as the Charter supports all this by its regulations, it lays down fundamentally new law, if-with the British chief prosecutor-one measures them against existing international law. That which, originating in Europe, has finally spread to the whole world and is called international law, is, in essence, a law of the coordination of sovereign states. If one measures the regulations of the Charter against this law, one must say: The regulations of the Charter negate the basis of this law, they anticipate the law of a world state. They are revolutionary. Perhaps in the hopes and longings of the nations the future is theirs. The lawyer, and only as such may I speak here, has only to establish that they are new-revolutionarily new. The laws regarding war and peace between states had no place for them-could not have any place for them. Thus they are criminal laws with retroactive. force.

Now the French chief prosecutor-if I understand right-rec

ognized the sovereignty of states in his humanly very moving speech and quite rightly saw that an unbridgeable gulf exists between the Charter and the international law at present valid, when it wants to see individuals punished as criminals for breach of international peace. He therefore shifts the trial from the plane of international law to that of constitutional law. It might possibly have happened that a German state power would have settled accounts after the war with those people who were responsible for launching the war. As the whole life of the German people is crippled today, those foreign powers who, in cooperation with each other on the basis of treaties, have territorial power in Germany, are undertaking this settlement of accounts. The Charter has laid down the rules which are to guide the Court in its investigation and verdict. One can here leave unexamined whether this opinion is legally right or not. Even if it is right, our question is not altered thereby: When looking at the problem from this point of view, no less than from that of international law, we must know how far the Charter creates penal law with retroactive force. But we must now measure the regulations of the Charter not only against the international law which was valid for Germany and was transformed into national law as people are wont to say-but also against the national criminal law which was binding on the defendants at the time of the deed. It is, after all, possible for a state, a member of the community of states, to be more cosmopolitan in its criminal law than the current international law. The rule of the Charter which is new with regard to existing international law may correspond to an already existing national law, and then it would not be a criminal law with retroactive force. So how was the breach of peace between states-particularly the breach of non-aggression pacts—treated in the national criminal law to which the defendants were subject at the time of the preparation and launching of the war?

It is possible that, in a state, those people are threatened with punishment who have prepared or launched or waged a war in breach of the international obligations of that state. That would actually be completely unpractical. For the result of a war also decides the internal settling of accounts. No criminal court threatens a victorious government. But, in case of defeat, the defeat itself gives the measures of the settlement of account. In any case the regulations of the Charter regarding punishment for

* * *

KELSEN seems to think that no such state exists, (Collective and Individual Responsibility p.543/App.II, exhibit 57, p.173, passage (20).).

breach of the peace between states are new for the national criminal law which the defendants were subject to at the time of the deed. But if one does not understand the phrase "nullum crimen, nulla poena sine lege" as it is understood on the European continent, i.e., as meaning that law in the sense of "lex" is a rule laid down by the state, a state law, but is of the opinion whichas far as I can see-is peculiar to English legal thinkers, that law in the sense of "lex" can also be a deeply rooted rule of ethics, of morality, we have one question left: As things happened to be, did the defendants-former ministers, military leaders, directors of economy, heads of higher authorities-feel at the time of the deed, or could they have felt that a behavior which is now made punishable by a retroactive law was against their duty?

The answer to this question cannot be given unless one has an insight into the nature of the constitution of the German Reich at the moment of the deed.

The German Reich was incorporated into the community of states in that form, with that constitution, which it happened to have at any given moment. Such is the case with every member of the community of states. The United States and the British Empire, the Union of Soviet Socialist Republics and the French Republic, Brazil and Switzerland stand in the framework of the family of nations with that constitution which they happen to have at the time.

The prosecution has, with full justification, tried to give a picture of this concrete legal structure of the Reich. For, without trying to do this, no one in this trial will be able to arrive at a decision regarding right and wrong. In addition it seems to me that many ethical questions which have been raised here require such an attempt to be made. But I am afraid that, with the picture presented by the prosecution, it is not possible to arrive as close to the truth as is possible in spite of the complex nature of the subject.

The prosecution starts with the conception of a conspiracy to conquer the world on the part of a few dozen criminals. The German State, if one looks upon things in this way, becomes a mere shadow or tool. But this State had long been in existence; no one could set aside the enormous weight of its history. It was only various things in this history, at home and especially abroad, that made Hitler's rise to power at all possible or which made it easier for him, and it was many things in this history that guided, urged on, limited or put a brake on Hitler in his choice of aims and means, and helped to decide the success or failure of his measures and undertakings.