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

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

* *

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.