THE PRESIDENT : Do the other members of the Prosecution wish to offer any other evidence ?Then we can pass to the evidence to be called on behalf of Bormann, Dr. Bergold, will you call the witness you wish to call, Kempka.
DR.BERGOLD (Counsel for the defendant Bormann) : Gentlemen of the Tribunal, I shall call the witness Kempka.
ERICHKEMPKA, a witness, took the stand and testified as follows : BY THE PRESIDENT :
QWill you state your full name, please.
AMy name is Erich Kempka.
QWill you repeat this oath after me :
I swear by God, the Almighty and Omnicient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
THE PRESIDENT :You may sit down.
DIRECT EXAMINATION BY DR. BERGOLD :
QWitness, in what way were you working near Hitler during the war ?
ADuring the war I worked for Adolf Hitler as his personal driver.
QDid you meet Martin Bormann in that capacity ?
AYes, I met Reichsleiter Martin Bormann in my capacity as driver, when he became my indirect superior.
QMr. Witness, on what day did you see the defendant Martin Bormann for the last time ?
ADuring the night from the 1st of May to the 2nd of May 1945, I saw the former Reichsleiter Martin Bormann near the Friedrichstrasse Station at the Weidendamm Bridge. The former Reichsleiter Bormann asked me what the general position war near the Friedrichstrasse Station, and I told him -
THEPRESIDENT (Interposing) : You are going too fast. He asked you what ?
THE WITNESS :He asked me what the position was and whether one could get through near the Friedrichstrasse Station. I told him that it was practically impossible, since there was too much of a defensive action being fought. Then he went on to ask whether it might be possible to do so with armored vehicles, and I told him that it was all a question of trying it.
Then, a few tanks and a few SBW cars came along, and small groups began to cling to them, and the armored vehicles penetrated the anti-tank trap after the vehicle at the head had got through.
Bormann was walking approximately in the middle of the column on the lefthand side. Suddenly that was a direct hit, presumably by a Bazooka shell, and the tank next to which Bormann was walking was blown up. On the very side where Bormann was walking, there was a bright flame.
THE PRESIDENT :You are still going much too fast. The last thing I heard you say was that Bormann was walking in the middle of the column. Is that right ?
THE WITNESS :Yes, he was walking on the lefthand side, center of the tanks.
Then, after the tank had got 40 to 50 meters through the anti-tank trap, the tank was hit, presumably by a Bazooka shell fired from a window. The tank disintegrated at the very spot where Martin Bormann was walking.
By having a person thrown against me who had been walking ahead -- I think it was Standartenfuehrer Dr. Stumpfecker -- I was thrown aside and I became unconscious. When I came to, I couldn't see anything at all since this blinding flash had blinded me. I then crawled back as far as the tank trap, and since then I have not seen Martin Bormann again. BY DR. BERGOLD :
QWitness, did you see Martin Bormann collapse on this occasion in the flame ?
AYes, there was a movement; there was a sort of collapse. You might call it a flying away.
QWas that explosion so forceful that according to your observation Martin Bormann must have died on that occasion ?
AYes, I assumed for certain that the strength of the explosion was such that he lost his life.
QHow was Martin Bormann dressed on that occasion ?
AMartin Bormann was wearing a leather coat, and SS leader's cap, and the insignia of an SS Obergruppenfueher.
QDo you therefore believe that if he had been found wounded on that occasion he would have been identified, because of his clothes, as being one of the leading men of the movement ?
AYes.
Q You have said that either beside or ahead of Martin Bormann another man was walking, a man named Naumann of the Propaganda Ministry.
AYes, it was the former Secretary of State, Dr. Naumann.
QWas he near the explosion ?
ANo, he was about one or two meters ahead of Martin Bormann.
QHave you subsequently ever seen Secretary of State Naumann ?
ANo, I haven't seen him again either. The same applies to Standartenfuehrer Dr. Stumpfecker whom I haven't seen either.
QOn that day you crawled back, didn't you ?
AYes.
QDidn't anyone follow you ?
AYes. Always, when you passed behind that anti-tank trap, you would run into defensive fire, and a few would remain lying on the spot and a few went back, but those who were with that tank I have never seen again.
DR. BERGOLD :Gentlenen of the Tribunal, I have no further questions to this witness.
MR. DODD :I have no questions, Mr. President.
THE PRESIDENT :To the defense counsel want to ask any questions ? BY THE PRESIDENT :
QHow many tanks were there in this column ?
AThat I cannot say at the moment -- possibly two or three There may have been fewer, but there were more SPW's, armored rifle protection cars.
QHowmany were there of them?
AMore and more came up, and then some of then went away again. They tried to get through at that point. Possibly one or two tried. The others fell back when that tank was blown up.
Q where did the column start from?
AThat I wouldn't know. They were there quite suddenly. I presume that there were armored cars which were in the middle of the town, and which were looking for a gap through which they could get out.
QWhen you say they were there suddenly, where do you mean they were? Where did they pick you up?
AI wasn't picked up. I left the Reich -
QWell, where did they join you? Where did you first see them?
ANear the Weidendamm Bridge, near the Friedrichstrasse Station. There they appeared during the night.
Q where was it that Bormann first asked you whether it would be possible to get through?
AThe was at the tank block behind the Friedrichstrasse Station near the Weidendamm Bridge.
QDo you mean that you met him in the street?
AYes. when moving out of the Reich Chancellery, Martin Bormann wasn't present, and then he appeared near the bridge at between 2 and 3 in the morning.
QYou met him there just by chance, do you mean?
AI met him only by chance, yes.
QWas anybody with him?
ASecretary of State Dr. Naumann from the Ministry of Propaganda was with him, and also Dr. Stumpfecker who had been the last doctor who was with the Fuehrer.
QHow far were they from the Reich Chancellery?
AFrom the Reich Chancellery to Friedrichstrasse Station is approximately a quarter of an hour's way under normal circumstances.
QAnd then you saw some tanks and some other armored vehicles coming along, is that right?
AYes.
QGerman tanks and German armored vehicles?
AYes, German tanks and German armored vehicles.
QDid you have any conversation with the drivers of them?
ANo, I didn't talk to the drivers. I think the former Secretary of State Dr. Naumann did.
QAnd then you didn't get into the tanks or the armored vehicles?
ANo, we didn't, neither Secretary of State Dr. Naumann nor Reichsleiter Bormann.
QYou just walked along?
AJust walked along, yes.
QAnd where were you with reference to Bormann?
AI was behind the tanks, approximately on the lefthand side behind the talks.
QHow far from Bormann?
APossibly that was three to four meters.
QAnd then some missile struck the tank, is that right?
A No, I believe a shot come from a baz ooka which was July 3 A LJG 20-1 shot from a window and that is how the tank was hit.
QAnd then you saw a flash and you became unconscious?
AY es, I suddenly saw a flash and in the fraction of a second I also saw how Reichsleiter Bormann and Secretary of State Naumann both made a movement of collapse and of breaking away and I also was thrown aside at that same instant and then subsequently lost consciousness.
QAnd then you crept away?
A when a come back to consciousness I could not see and I crawled away. I crawled until I hit the tank block, the tank trap with my head.
QWhere did you go to that night?
AThen I waited there for a while and then I said farewell to my drivers, some of whom were still there and then I remained amongst the debris and then the following day I left Berlin.
QWhere were you captured?
AI was captured at Berchtesgaden. BY THE BRIBUNAL (Mr. Biddle):
QNow near were you to the tank when it exploded?
AI estimate three to four motors.
QAnd how near was Bormann to the tank when it exploded?
AI assume that he was hanging on to it with one hand.
QWell, you say you assume. Did you see him or did you now see him?
AI did not see him on the tank actually. He followed the tank also -- I had done the same thing. I had held on to the tank at the back.
QDid you see Bormann trying to get on the tank just before the explosion?
ANo, I did not see that. I did not see an effort on Bormann's part which would hint that he wanted to climb on board the tank.
QHow long before the explosion were you looking at Bormann?
AAll this happened in a very brief period. When I was still talking to Bormann the tanks arrived and subsequently it 3 July A LJG 20-2 Went through the tank trap right away and then about 40 meters afterwards it was when the tank was hit.
QWhat do you call a brief period?
AWell, during the conversation that lasted only for a few minutes possibly.
QAnd how long between the conversation and the explosion?
AI cannot tell you the time but surely that was not a quarter of an hour, it was not half an hour which had passed.
QHad you been in the Chancellery just before this?
AIn the evening towards 9 o'clock I left the Reichschancellory.
QHave you ever told this story to anyone else?
AI have been interrogated several times because of that and I have already made the same statement.
QAnd who took your interrogation, some officers?
AYes.
QWith what army, what nations?
AI have been interrogated by various officers of the American Army, the first time at Berchtesgaden, the second time at Freising and the third time at Oberursel.
MR. DODD:As a result of the Court's inquiry there are one or two questions that occur to me that I think perhaps should be brought out Which I would like to ask the witness, if I may.
CROSS-EXAMINATION BY MR. DODD:
QYou were with Bormann were you, at 9 o'clock in the bunker in the Reichschancellory on that night?
AYes. Towards 9 O'clock I saw him for the last time when I said farewell to Dr. Goebbels. Then I met Martin Bormann downstairs in the cellar and then I saw him again during the night between 2 and 3 o'clock in the morning.
QWell, maybe you said so but I did not get it if you did. Where did you see him at 2 or 3 in the morning prior to the time that you started to walk with him along with the tank?
A Before that I saw him at the Friedrich Strasse Station 3 July A LJG 20-3 at between two and three in the morning and before that for the last time I had seen him at 21 hours at the Reichschancellory.
QWell I know you did. But did not you and Bormann have any conversation as to how you were to get out of Berlin when you left the Reichschancellory bunker about 9 o'clock that night?
AI had received my orders from the former Brigadefuehrer Milunke. I was not getting direct orders from Reichsleiter Bormann anymore.
QI did not ask you if you got an order from him. I asked if you and Bormann and whoever else was there had not discussed how you would get out of Berlin. It was 9 o'clock at night and the situation was getting pretty desperate. Did you not talk about how you would get out that night? There were not many there.
AThere were four to five hundred people who were still in the Reichschancellory and those four or five hundred people had been subdivided into groups. These groups were leaving the Chancellory one by one, one group after another.
QI know there may have been that many in the Chancellory. I am talking about that bunker you were in. You testified about this before have you not? You told people that you knew Hitler was dead as well as Bormann. You must have been in the bunker if you know that.
AYes, I have already testified to that effect.
QWell, what I want to find out is whether or not you and Bormann and whoever was left in that bunker talked about leaving Berlin that night before you left the bunker?
AI had not spoken to Reichsleiter Bormann anymore about it at the time. We only had marching orders saying if we should succeed we should report to Fehrbellin where there was a fighting group which we were to join.
QYou are the only man who has been able to testify that Hitler is dead and the only one who has been able to testify that Bormann is dead, is that so, so far as you know?
3 July A LJG 20-4
AThat Hitler is dead is something I can say. I can say that he died on the 30th of A pril in the afternoon between two and three o'clock.
QI know but you did not see him die either, did you?
ANo, I did not see him die.
QAnd you told the interrogators that you believe you carried his body out of the bunker and set it on fire. Aren't you the man who has said that?
AI carried Adolf Hitler's wife out and I saw Adolf Hitler himself rolled in a blanket.
QDid you actually see Hitler?
ANot himself any more. The blanket in which he was rolled was a little short and only his legs were hanging out.
MR. DODD:I do not think I will inquire further, Mr. President.
DR. BERGOLD:I have no further questions either.
THE PRESIDENT:The witness can retire.
DR. BERGOLD:Gentlemen of the Tribunal, then there is witness Walkenhorst who is also present. It appears to me that there is a misunderstanding between the High Tribunal and myself. I had stated in the afternoon that apart from witness Kempka I did not wish to call another witness and I therefore forego the calling of witness Walkenhorst expressly.
THE PRESIDENT:What did you ask for him to prove in the first instance?
DR. BERGOLD:Well, originally -
THE PRESIDENT:We have get your application.
DR. BERGOLD:But after talking to witness Klopfer, who I did not wish to call either, I shall also forego the witness Walkenhorst because he does not appear to me to be competent enough to testify as to what I wanted him to testify about.
My entire taking of evidence therefore is now at an end except for two documents which the Tribunal have already granted me, namely the decree for the stepping of measures against the 3 July A LJG 20-5 churches and Bormann's decree from 1944, with which he forbade members of his chancellory from being members of the SD.
Those two documents I have not yet received and when I shall have received them I shall submit them.
THE PRESIDENT:Very well.
Dr. Servatius, you have some question or affidavit you wanted to get from this witness Walkenhorst, did you not?
DR.SERVATIUS (Counsel for defendant Sauckel): I have an affidavit from witness Walkenhorst which deals briefly with the question of the telephone conversation which Sauckel had with reference to the clearing on that occasion of the camp at Buchenwald. He has been accused of having ordered the evacuation of the camp when the American Army approached. Now this witness Walkenhorst has accidently been found and it transpires that peculiarly enough he was the man with when Sauckel had his conversation. In an affidavit he has confirmed that Sauckel has demanded that the camp should be handed over in an orderly way and that is really all I wanted to ask of this Witness.
I can submit it to you in the form of an affidavit.
THE PRESIDENT:Do the Prosecution want the man called or will the affidavit do?
DR. SERVATIUS:I am satisfied with handing over the affidavit.
COLONEL PHILLIMORE:A s far as the Prosecution are concerned, an affidavit would suffice.
THE PRESIDENT:Very well.
DR. SERVATIUS:In that case I submit the affidavit and I shall state its exhibit number together with my list.
THE PRESIDENT:There is one other matter which I wish to draw the attention of the defendants' counsel to.
The Tribunal have been informed as to the length of the speeches of the defendants' counsel which have been placed before the translation division for translation and in the case of the defendant Keitel and in the case of the defendant Jodl the speeches which seem to have been put into the translation division seem to be very much longer than the Tribunal had anticipated and quite 3 July A LJG 20-6 impossible to be spoken in one day.
Would counsel for the defendant Keitel explain to the Tribunal why that is and what stops he has taken to shorten his speech?
DR. NELTE: Mr. President, I have sent a letter to the Tribunal today, which I believe has not yet reached you.
In that letter I made the request that in the case of the defendant Keitel I should be permitted to exceed the length of time which hasbeen limited to one day for the big cases. When, following a request of the Tribunal, I stated that the time which my final speech would take, I had my manuscript completed. That manuscript would have taken about seven hours. In that form, I have given that manuscript to the Translating Division because it was too late to alter it. I submitted the first part last Wednesday and the second part, in accordance with my promises, I submitted on Saturday morning.
If the Tribunal, with reference to the decision to allow only one day -- that is, five and a half consecutive hours of speech -- would consider th the possible maximum and would not wish to depart from that ruling in any case, not even in the case of defendant Keitel who has been particularly seriously implicated, then I would be forced to eliminate certain passages from the manuscript and to submit then merely in writing. Whether this is a possibility I should again like to leave to the decision of the Tribunal.
THE PRESIDENT:Well, Dr. Nelte, the Tribunal takes note of the fact that when you were asked how long your speech would take, you said, I think, seven hours, Is that right?
DR. NELTE:Yes.
THE PRESIDENT:Well, according to the estimate which has been given to the Tribunal, the speech which you submitted for translation would take about thirteen hours. That is nearly double as long as you yourself said, and it is almost exactly double the length of the speech that has been submitted for the defendant Ribbentrop, whose case is almost as extensive, if not quite as extensive, and it appears to the Tribunal to be out of all reason to put in a speech which will probably take nearly double the time that you yourself stated. The speech you put in is more then double the length of the speech that has been put in on behalf of the defendant Goering.
DR. NELTE:Naturally, I am unable to know the point of view of Counsel for Reich Marshal Goering or Foreign Minister von Ribbentrop. I can not know the principles that guided them. I can only be directed by my conscience and sense of duty.
THE PRESIDENT:Perhaps that is a matter of comparison, it is true, but you said seven hours yourself, and you now put in a speech which will probably take thirteen.
DR. NELTE:I believe, Mr. President, that I shall make that speech in seven hours, if I have seven hours for speaking.
THE PRESIDENT:Well, the Tribunal has given this matter a very full consideration, as you are aware, and they have said that every speech must be made in one day, and that will take up some considerable time for the whole of the defendants to make their speeches.
DR. NELTE:Mr. President, I accept a decision. If I am confined to one day, then I shall have to leave but certain parts from my manuscript, but in that case, may I make the request that the remainder be taken cognizance of by the Tribunal, because everything that I have included in my manuscript is the minimum of what I consider necessary in so large a case.
THE PRESIDENT:Dr. Nelte, we will consider that application for you to be allowed to put in the other passages in your speech, and we will let Defendants' Counsel know what our decision is upon that.
Dr. Siemers, the Tribunal has now received a full report showing the immense trouble taken by the Secretariat to find or try to find the witness Schulze, Otto Schulze, for you since you first asked for him in February of this year, and the Tribunal would like to know what steps you have taken in the meantime to try and find him.
DR. SIEMERS:I believe, Mr. President, that there was no need to find the witness because, actually, it was known that he was living in Hamburg, Blankenese, and because, in my opinion, he is still living there. That is the address which I have repeatedly given the General Secretariat.
THE PRESIDENT:Well, you knew what the General Secretary's office were doing about the matter. You knew they were unable to find him at the address. You knew that they had sent the interrogatories to Washington because they were told he had been taken over there, and we are told that you have been in Hamburg yourself.
DR. SIEMERS:That the interrogatory was sent to Hamburg is something which I have known only since last Friday after my return from Hamburg.
I personally did not anticipate that such a mistake or such a misunderstanding could arise.
Unfortunately, I do not know how it has arisen. Far be it from me to make any kind of accusation. I have merely requested that if the document were received, then the Tribunal would agree to receive it in evidence later. Unfortunately, I can not submit it today. I have immediately informed the General Secretariat of the address again, and I do not know any more than that address in Hamburg either. In my opinion, Admiral Schulze is not in captivity, and it is possible that during my absence some misunderstanding has occurred, but I myself have only heard that last Friday.
THE PRESIDENT:Well, I can not understand why, during all these months that you have been here and have had full opportunity of seeing the General Secretary and have received all the assistance which you and all the other Defendants' Counsel have received from the General Secretariat, that you should not have helped the General Secretary better to find this witness. That is all.
We will adjourn now.
(A recess was taken until 4 July 1946, at 1000 hours.)
OFFICIAL TRANSCRIPT OF THE INTERNATIONAL MILITARY TRIBUNAL IN THE MATTER OF THE UNITED STATES OF AMERICA, THE FRENCH REPUBLIC, THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, AND THE UNION OF SOVIET SOCIALIST REPUBLICS AGAINST HERMANN WILHELM GOERING ET AL, DEFENDANTS, SITTING AT NURN BERG, GERMANY, ON 4 JULY 1906, 1000-1700, LORD JUSTICE LAWRENCE PRESIDING.
THE PRESIDENT:Dr. Sauter.
DR.SAUTER (Counsel for the defendant Funk) : If you please, sir.
THE PRESIDENT:The Tribunal has received your letter of the 17th of June of this year signed by the defendant Walter Funk.
DR. SAUTER:Yes.
THE PRESIDENT:The Tribunal proposes to take notice of that, and if you will read it, it will then become a part of the record.
DR. SAUTER:Yes; but, Mr. President, at the moment I do not have the letter with me.
THE PRESIDENT:The Tribunal would wish you to do it at two o'clock, then, to read that letter.
DR. SAUTER:Very well, Mr. President. Thank you very much.
THE PRESIDENT:The same observation applies to Dr. Exner's letter of the 23rd of June, 1946, on behalf of the defendant Jodl; only the Tribunal thinks that that letter also should be signed by the defendant and read by Dr. Exner at two o'clock. I will call on Dr. Jahrreiss.
DR.JAHRREISS (Counsel for the defendant Jodl): Mr. President and gentlemen of the Tribunal, the main juridical and fundamental question of this trial concerns war, which is forbidden by International law, the breach of peace as treason to the world constitution.
It overshadows all other juridical questions. The four chief prosecutors discussed this problem in their opening speeches, sometimes as the central probelm of their presentation, sometimes as a fundamental problem and indeed not without looking at it from different perspectives.
Counsel for the defence has to examine it now. From among the defence 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 th this possibility will be used to such an extent that the intention of the counsel for the defence, 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 fulfil, 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 place 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. This 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 dome 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 now laws and consequently laws with retroactive force.
Such a clarification is not carried out here in order to save 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 unassail able.
Let us assume that it were thus: The Charter does not formulate criminal law which is already valid, but creates now 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 behaviour not before himself nor before others.
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 wrong fulness 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 proscriptions of International Law to date are uncontested.
But what if we hove 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 interpret-
ation 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 or 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 behaviour.
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 is 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 triving for, namely :
The powers should renounce war as an instrument of national policy and this without legal definitions from a practical point of view, 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.a. as an institution of international law.
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 (9) Paris: