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27 August 2015

A Court without Law, by Heinrich Haertle -- part 5

Three attorneys for defendants have protested that the International Military Tribunal at Nuremberg is based on what amounts to ex post facto law, contrary to all Western legal tradition.

"Continuation of the War-Effort of the Allied Nations"

From Freispruch für Deutschland by Heinrich Haertle
Translated by Hadding Scott, 2015

On 26 July 1946 Jackson tries in vain to refute these objections. His excuses convince nobody, since retroactive laws contradict the European legal culture. We can only be thankful to him however for his attempt at justification. That is because the blind zealot in his effluence of verbiage proceeds to a revelation that marks the whole tribunal for present and future:

"The Allies are still technically in a state of war with Germany, although the enemy's political and military institutions have collapsed. As a military tribunal, this Tribunal is a continuation of the war-effort of the Allied nations" [Nuremberg Trial Proceedings, vol. 19, p. 397]

With that he has in his way ended the legal controversy: the Nuremberg Tribunal is the continuation of the war with the methods of justice.

With this clarification Jackson has at the same time confirmed that the real goals of the trial can only be attained through military force, with a transgression against international law.

While the American chief prosecutor alternately invokes military force and international law, his colleague trained in Marxist dialectic, [General Roman Andreyevich] Rudenko, attempts a manoeuvre before the High Judges during which they are able only spasmodically to maintain their serious faces. On 8 February 1946 Comrade Rudenko asserts that the objections to the violation of the principle nulla poena sine lege lose all meaning in view of this "fundamental, decisive fact: the Charter of the Tribunal is in force and in operation and all its provisions possess absolute and binding force." (Nuremberg Trial Proceedings, vol. 7, p. 147) 

This Stalinist buffoon thus asserts that the mere existence of a prefabricated charter can retroactively stamp as crimes actions that were never punishable before. Why this bourgeois respect for ancient principles of justice? We are the law; what we command has "absolute and binding force." La loi, c'est moi![1]
[1]. La loi, c'est moi (I am the law), is a statement apocryphally attributed to Louis XIV. It seems to be well established that the more usual form, L'état, c'est moi (I am the state), is also fictitious, since the statement was supposedly made before parliament in 1655 whereas research has not found that it appeared in print anywhere until 1834, with the publication of Jacques-Antoine Dulaure's Histoire de Paris. It is a nice twist, however, for Haertle to suggest that Soviet officials behaved like a caricature of a divine-right monarch.

23 August 2015

A Court without Law, by Heinrich Haertle -- part 4

Nullum delictum, nulla poena sine praevia lege poenali -- it means that no action can be considered an offense and no penalty can be imposed unless there was a pre-existing law that both defined the offense and declared a penalty -- is an ancient legal principle respected throughout the West. Francis Wharton, prefacing A Treatise on the Criminal Law of the United States (1874) wrote:

Nulla poena sine lege, an axiom constantly recurring in our old English books, is as ancient as the Quaestiones Perpetuae. In the later Roman jurists it is thus expanded: Nullum delictum, nulla poena sine praevia lege poenali.

In the International Military Tribunal at Nuremberg this is particularly important in regard to the accusation of "waging aggressive war," which had never been considered a crime under international law. This in fact had been pointed out at the London conference where the charter for the tribunal was established, by the French delegate, Dr. André Gros.

The argument against ex post facto law has no bearing whatsoever on any accusation about gassing Jews, since a specific accusation like that could have been prosecuted under Germany's own laws against homicide. Never was it made legal in National-Socialist Germany to kill Jews without provocation.

Justinian I


From Freispruch für Deutschland by Heinrich Haertle
Translated by Hadding Scott, 2015

At first, the defense-attorney Dr. Stahmer had to accept the taboo-declaration of the “high court." In his pleading for Reich's Marshal Goering however he repeats his attack and renews his argument to the judges and prosecutors against the legal foundations of the proceedings. He dares to demonstrate to the tribunal that even National-Socialist legislation essentially retained the principle: without law no punishment. The Third Reich issued no retroactive laws, but merely applied existing laws with increased punishment. Even this state did not dare to violate the legal principle: nulla poena sine lege praevia.

Precisely the liberal worldview of the signers of the charter would require them to treat the legal principle nulla poena sine lege praevia as especially sacred, Stahmer stresses:

“This is also apparent of course in the fact that the [Allied] Control Council for Germany has newly impressed this principle upon all Germans most acutely by removing analogy again from criminal law, in §2a of the criminal code.”

All the more incomprehensible is it for the German sense of justice when this principle now is not supposed to be valid toward Germans, who are accused here. To the French prosecutor he counters that one cannot begin to strengthen the idea of law by violating it. He admonishes the English chief prosecuting attorney that he himself had called ex post facto legislation one of the most abominable doctrines.

He attacks Jackson even more sharply. He poses the question:

“May a criminal court that wants to effect justice apply concepts of law that, to the accused and to their people's legal scholars, are entirely alien and always have been alien?”

Attorney [Gustav] Steinbauer, Dr. Seyss-Inquart's defender, also opposes with total resolve the construction of retroactive laws. He cites the American weekly periodical Time, which on 26 November 1945 attacks an essential element of the tribunal's legal fictions:

Whatever kinds of laws the Allies attempt to set up for the purposes of the Nuremberg Tribunal, most of these laws did not yet exist at the time when the deeds were committed. Punishment ex post facto has been condemned by jurists since the days of Cicero.

The French national assembly too, on 19 April 1946, thus exactly three months previously, had affirmed in Article X of the Charter of Human Rights:

Law has no retroactive force. No one can be condemned and punished except in accord with law that has been proclaimed and published before the deed to be punished....

On 25 July 1946 the defense-attorney for Rudolf Hess, Dr. [Alfred] Seidl, also attacks the abuse of beginning a renovation of international law with such questionable means: it must have unforeseeable consequences if a principle is violated that is an integrating component of international law – the principle that an action can only be punished when its punishability had been specified in law before the action was committed. A violation of the principle nulla poena sine lege necessarily makes the idea of law in general questionable, he said.

Part 5 

21 August 2015

A Court without Law, by Heinrich Haertle -- part 3

In the autumn of 1945 Hermann Goering chose Dr. Otto Franz Walter Stahmer (1879-1968) from a list of Allied-approved attorneys to be his defender, because Stahmer's was the only name on the list that Goering recognized. 

Stahmer against Jackson

From Freispruch für Deutschland by Heinrich Haertle
Translated by Hadding Scott, 2015

Since every defense that could even pretend to be worthy of the name had to point out the paradox of unlawful laws, the charter itself declared itself taboo. The criticism that could not be withstood was simply forbidden: Article 3 of the charter explicitly forbids every motion by the defense that could demonstrate the court's lack of jurisdiction.

In order to prepare a minimal defense, the attorney Dr. Stahmer nonetheless launches an assault from the domain of European principles of justice. At the beginning of the trial, on 19 November 1945, on behalf of the whole defense he dares a spectacular attack:

“The present trial, to the extent that it is supposed to punish crimes against peace, cannot support itself on valid international law, but is a proceeding based on a new criminal law, a criminal law that was created only after the deed. This conflicts with a principle of jurisprudence hallowed in the entire world, the partial violation of which in Hitler's Germany, has been hotly condemned outside and inside the Reich. It is the proposition that only he may be punished who has violated an already existing law that forewarns him of punishment at the time of his deed.”

This proposition belongs to the great principles of the system of government of the very signatory states of the charter for this court, specifically England since the Middle Ages, the United States of America since their birth, France since its great revolution, and the Soviet Union. When recently the [Allied] Control Council for Germany issued a law that is supposed to secure the return to a just German jurisprudence, they ordered in the first line the reestablishment of the proposition: no punishment without a punishment-carrying law that was already in force at the time of the deed. This proposition is not just a regulation of convenience but springs from the insight that every defendant must feel that he is unjustly treated if he is punished in accord with an ex post facto law.

The defense-attorneys of all present defendants would neglect their duty if they accepted the abandonment of the applicable international law and the setting aside of a universally acknowledged principle of modern criminal law, and suppressed their concerns, which today are openly proclaimed even outside of Germany.

Defense-attorney Dr. Stahmer meanwhile in no way opposes the ostensible goal of the court, that crimes against peace should be punished and particular politicians and military-men who are convicted of such a crime should be held legally responsible. The German defense-team demands only that the accepted aim be pursued within the domain of justice. They warn against wanting to create new and better justice with unjust means -- unjust because these laws are applied retroactively and onesidedly. On behalf of the German defense-team Dr. Stahmer adjures the court:

“Precisely where there is an accusation about deeds that at the time of commission were not subject to any penalty, the tribunal must limit itself to comprehensively investigating and then ascertaining what happened, and in this the defense-team will collaborate with all its powers, as a genuine aid to the court. The states of the community of international law, under the weight of this judicial ascertainment must then, standing together as lawmakers, admonish the men who would culpably begin an unjust war in the future that they will be punished by an international court.”

Then Dr. Stahmer puts it all on the line: he demands the review of the court's charter by a neutral committee of internationally recognized legal scholars and, on behalf of the entire defense-team, moves:

“The court should request reports by internationally recognized scholars of international law about the legal foundations of this trial that is based on the court's charter.”

The “judges” and “prosecutors” find themselves in an unenviable position. They outdo each other in counterattacks so as to conceal their insecurity. The old slogans are repeated. In terms of jurisprudence they have already been forced into a defensive posture. Now the defenders are the prosecutors – prosecutors also against judges who lower themselves to abusing their judicial authority for unjust purposes.

The Allied inquisitors still possess one argument that condemns all legal objections to futility. Two days later, on 21 November 1945, the motion of the German defense is quashed with the rationale that it puts the legitimacy of the court into question and thus is found to contradict Article 3 of the charter.

The court is taboo and must remain taboo, because an internal criticism of its foundations would necessarily oust the juristic functionaries of Allied revenge-policy from their judges' chairs.

Nevertheless, Stahmer's assault has historical significance as a magnificent demonstration of courage and conscientiousness amid a world full of the lies, baiting, and violence of the victors, and submissiveness, cowardice, and self-incrimination among the vanquished.

No German defense-attorney would have been permitted at that time without first documenting that he had been an opponent of the political opinion and attitude of the accused. So much the brighter does this flame of the European will to justice shine from the darkness of those days.

16 August 2015

A Court without Law, by Heinrich Haertle -- part 2

Communist Justice

From Freispruch für Deutschland by Heinrich Haertle
Translated by Hadding Scott, 2015

Sir Hartley Shawcross, the English chief prosecutor, works himself up in the course of the proceedings to asserting in his closing statement that this tribunal is “a milestone in the history of civilization.” He only neglects to mention that this milestone was sent from Moscow. That is evident in the fact that this trial had transgressed against two fundamental principles of European justice already in the planning-stage: since the days when Rome became the lawgiver for the West, it has been accepted, as the first requirement for arriving at a verdict, that the defendant must have violated an applicable law that is precisely limited in meaning. In the course of centuries criminal law became ever more refined, and the perpetrator's motive was considered more and more carefully, to his favor or his detriment. These two requirements are not met by the charter.

Only in the Moscow show-trials has there been a reversion to pre-Roman barbarity. Communist class-justice has never denied that it serves only one purpose: the extermination of the class-enemy (die Ausrottung des Klassenfeindes); the defendant is therefore already convicted a priori, because he is a member of the enemy class. If we replace proletariat and bourgeoisie with victor and vanquished, then we arrive at the effects of the Nuremberg Charter.

This charter violates the elementary foundation of all dispensation of justice, because it devises “laws” with retroactive force. Actions that happened from 1933 to 1945 are supposed to be punished according to laws that were decreed by the Allies only on 8 August 1945. The construction of such a charter already proves that these “laws” were not previously valid. The charter is the substitute for non-existent laws. One produces such substitutes in order to be able to punish deeds that were regarded in the prior history of law as unpunishable. For the first time politicians and military men are supposed to be judged in accord with laws that had to be invented ex post facto for this purpose.

These retroactive laws however also contradict all prerequisites of justice for another reason: they lack universal validity. In Article 3 of the charter it is explicitly specified that the new laws are only to be applied against German “militarists,” but would have no applicability to soldiers and officers of the democratic and Bolshevik victors.

We gladly concede that the tribunal itself has gotten itself into a bind. If the tribunal had also applied these laws to the Allied militarists, the tribunal's own foundations would have been shattered. The judges could not simultaneously be defendants. Nor would it be acceptable to perform the comedy of justice in Nuremberg. The unjust laws must therefore be limited to Germans, and with this onesidedness the character of justice has already been forfeited. One injustice begets the other.

Part 3 

13 August 2015

A Court without Law, by Heinrich Haertle -- part 1

Scene from the 1921 silent film Der Galiläer

A Court without Law[1]

From Freispruch für Deutschland by Heinrich Haertle
Translated by Hadding Scott, 2015

On Sunday, 11 February 1945, the gravely consequential Yalta Conference comes to an end. The most prominent participants, nine English, nine American, and seven Russian, convene for the last plenary meeting. Again a banquet is served. Between the two last courses the secretaries present the communiqué for signing. The plates and half-full glasses are shoved to the side and Stalin, Churchill, and Roosevelt signed as if they were giving autographs. One of the most catastrophic documents in world-history is complete: the sacrifice of eastern Europe to Stalinism, the partitioning of central Europe, the death-sentence for millions of Germans.

Only the Yalta Dictate, not any international law, authorizes the prosecutors and judges for their roles at Nuremberg. The whole spectacle of legal arguments and pretenses soon proves to be merely a façade, and behind that the remorseless will for disempowerment, plunder, and permanent humiliation. First Germany's political and military leadership shall be removed. One finds it hardly necessary anymore to dissemble. The Super Versailles is here:

“We are resolved to disarm and dissolve all German armed forces; to demolish for all times the German general staff, which has repeatedly accomplished the resurrection of German militarism; to eliminate or destroy all of Germany's military institutions; to eradicate or to monitor all German industries that could be employed for arms-production....”

Then the punishment of all “war-criminals” is resolved, so as to remove “all Nazi and military influences from public offices, and from cultural and economic life.” It is of course not the intention “to destroy” (“zu vernichten”) the German People, these philanthropists emphasize, but only when Nazism and militarism are “exterminated” (“ausgerottet”) does hope for a “decent life” (“ordentliches Leben”) for the Germans still exist.

The four victorious powers would hold the highest authority, in the exertion of which they would implement, in addition to total disarmament and demilitarization, the “partition of Germany.”

To calm one's own conscience, and to be able to perdure before that other world-court, the court of world-history, one still wants to justify the sacrifice that has been made for war and to secure for oneself that debt-instrument that is supposed to lend the appearance of justice to the coming politics of extortion and reparation.
[1]. The title Gericht ohne Gesetz seems to be taken from the sermon by Donatus von Passau, Die ungerechte Gerechtigkeit (Unjust Justice), wherein the trial of Jesus Christ before the high priest Caiaphas is discussed. It appears in the collection of sermons by Donatus published in 1694 under the title Rosetum Dolorosum Centifoliatum, p. 366

11 August 2015

Shylock as Judge, by Heinrich Haertle -- part 14

Guilt by Kinship

From Freispruch für Deutschland by Heinrich Haertle
Translated by Hadding Scott, 2015

A final difficulty emerges because one of the main defendants, Gustav Krupp von Bohlen und Halbach, proves unfit to stand trial.[1]

One remembers the extent to which already in the First World War the American arms-industry agitated for war so as to earn billions in the armaments-boom. As munitions escalated in the Second World War, the profit from carnage increased accordingly. Reason enough to divert attention from these facts with an accusation against German industry. The Krupp company, for generations a symbol of the national and social strengths of the German economy, should be accused and condemned as a symbol for all German industry. When however the owner of the last great European family enterprise proves to be a terminally ill man, one does not shy away from quite overtly applying guilt by kinship and accusing his son.

At first the deathly ill old man is tormented anyway, through constant examinations, although Krupp's general practitioner, Dr. Otto Gerke, certifies: “There is a complete incapacity, even in the simplest actions. Herr von Bohlen is in no longer in any way accountable or fit for questioning!” The surgeon of the American 42nd artillery-division supports this assertion. The defense-attorney asks that the trial be postponed. On 6 November 1945 the terminally ill patient is examined again by English, French, American, and Russian physicians. Their report supports the same finding.

But the American chief prosecutor Jackson wants to have his revenge. He slanders the Krupp family as “the most incorrigible and influential warmongers.” Mr. Jackson produces the following falsification of history:

“We represent three nations of this Earth; one of them was overrun three times with the arms of Krupp; another had, in the course of a war in the east, suffered under the weight of the war like no nation before, and one of them has twice crossed the Atlantic in order, to the extent that it was in their power, to end conflicts that had arisen through German militarism.”

In the blindness of his hatred, Jackson rejected all medical reports. In vain the German defense-attorney, Dr. Klefisch, demands that a trial in absentia not be allowed in under any circumstance. No procedural law of any European state allows the prosecution of a defendant who is absent and totally incompetent to stand trial, he argued. In fact the prosecutors demand to prosecute Krupp in absentia anyway. That is too much for Lord Justice Lawrence. He directs to Jackson the question:

“Do you believe that it serves the interest of justice to convict a man who is unable because of illness to pursue his defense in an orderly manner?”

Jackson twists every which way but cannot say yes to the president's question.

Then the English chief prosecutor, Sir Hartley Shawcross, repeats the same maneuver. He too is interrupted by the president with the penetrating question:

“Do you agree with me that according to the statutory law of Great Britain – just as, if I have understood correctly, according to the statutory law of the United States – a man in Gustav Krupp's mental and physical condition would be declared unfit for trial?”

After some evasions Sir Hartley too must give in. He resumes Jackson's contorted response.

Lawrence does not let go:

“Do you now suggest that under the prevailing circumstances Gustav Krupp should be prosecuted in his absence despite the medical reports that we have?”

The British chief prosecutor can no longer evade, and leaves the decision to the discretion of the court.

The acting chief prosecutor of the French Republic, in his prosecutory zeal, also cannot forgo the opportunity to embarrass himself before this tribunal. His English, American, and Russian colleagues had imposed on him, after the attempt to conduct a trial in absentia had run aground, the task of finding another way: now one does not shy away from resorting to guilt by kinship. The French prosecutor, Charles Dubost, stoops to this demand:

“We consider it necessary, since a second trial against the big industrialists is not supposed to occur, to substitute for Krupp the father, who is unfit to stand trial, Alfried Krupp, against whom grave accusations are raised.” Now the French judge loses patience too. Donnedieu de Vabres asks the French prosecutor with a piercing voice:

“You have just put forth the view that the name of the son Krupp should be substituted for the name of the father Krupp. Did you really mean “substituted”? … Do you really believe that you can ask the court to substitute one name in the indictment for another?

The embarrassment of the chief prosecutors however leads only to the separation of the prosecution of Krupp from the trial of the “main war-criminals,” and its postponement. In vain did the defense-attorney point out the illegality of this procedure based on guilt by kinship. In the documents he had been able to find hardly a word about complicity or participation by Alfried Krupp in the crimes attributed to Krupp the father. Furthermore, Alfried Krupp had become a proprietor only in November 1943. Nevertheless: guilt by kinship!

The Soviets treated the International Military Tribunal at Nuremberg as the point of departure for 200,000 additional trials. Their democratic colleague Jackson hoped for 130,000 defendants that could be arrested and detained just by the armies of the United States because of this judgment.

Now the biggest trial in world-history can begin. The accusation presents 2630 evidentiary documents, the defense 2700. 2400 witnesses are questioned, and 300,000 affidavits are presented. The trial-transcripts and the bound volumes in all four languages of the proceedings tip the scales at 440 hundredweight. 780,000 photocopies are produced in the photo-lab. 27,000 meters of audiotape and 7000 phonograph-records preserve every word of the proceedings. The biggest war in history ends with the biggest show-trial ever staged. A gigantic extravaganza! For what purpose? Shylock wants his revenge – as a judge without justice, in a court without law.
[1]. Gustav Krupp von Bohlen und Halbach (1870-1950) was not a Krupp by birth. The arms-company had been inherited by Bertha Krupp in 1902 at age 16 following the suicide of her father, Friedrich Krupp. In 1906 Kaiser Wilhelm arranged for an aristocrat, Gustav von Bohlen und Halbach, to marry the young heiress so as to preserve the vital industry that the Krupp family had created. As part of the deal, the groom made Krupp part of his own name. (It seems not to have been unusual in Imperial Germany for a man to take his wife's surname, if her family happened to be more prominent than his.) "Taffi Krupp" became chairman of the company in 1909. His health began to fail with a stroke in 1939, and took a dramatic turn for the worse in 1943 -- which is evidently the reason for Alfried's taking control of the company that year. The Associated Press on 16 November 1945 reported Krupp's diagnosis as "senile softening of the brain."

End of Chapter One 

08 August 2015

Shylock as Judge, by Heinrich Haertle -- part 13

In contrast to the respectful treatment of the defeated French in 1940, the defeated Germans in 1945 are treated precisely as criminals.


"Hands up! Pants down!"

From Freispruch für Deutschland by Heinrich Haertle
Translated by Hadding Scott, 2015

Only five years have passed since then. Germany's peace-offer [to Britain] after the victory over France has been rejected. Roosevelt, Churchill, and Stalin have broadened the European war into a Second Wold War. For five years Germany stood nearly alone against the three greatest powers on Earth, until she succumbed in 1945 to the Allies' manifold quantitative advantage in personnel and materiel. Would such brave defenders not be entitled to honorable treatment?

Eisenhower, Churchill, and Stalin treat the defeated military opponents as criminals. After the gangsters' action of arresting the Reich's Government the path is clear for a retribution and revenge no longer limited by law or morality.

Into the government's still unoccupied territory of Flensburg-Muerwik, the seat of the Reich's Government and of the High Command of the Wehrmacht, British tanks, infantry, and military police advance. The members of the Reich's Government, still not arrested aboard the Patria, have just assembled for a cabinet-meeting. Foreign minister, finance-minister, and acting chancellor Count Schwerin von Krosigk gives a situation-report. One still hopes to keep as many Germans as possible beyond the reach of the Red horde.

Suddenly the door flies open. "Hands up!" bellows a heavily armed Tommy. The astonished ministers rise. "Pants down!" shout the Englishmen. This beats everything. Naked, the members of the Reich's Government are searched by hasty hands. "Nothing was left unexplored," reports an eyewitness, the adjutant of Grand Admiral Doenitz, Walter Luedde-Neurath. Then the ministers are shoved out onto the street like bandits in underwear and pajamas. Without regard for decency and sense of shame, the secretaries must endure the same treatment, threatened with machine-pistols, patted down, robbed.

A little later the office of the Reich's Economic Minister Albert Speer is also "conquered" by tanks, and Speer is arrested. A few hours later Grand Admiral Doenitz, Senior General Jodl are standing against the wall in the yard of the Flensburg Police Department. An English machine-gun menaces their every movement. Then military trucks and tanks carry them away. The last barrier to the fulfillment of victors' justice has been removed; the German nation has been robbed of its government. With tanks and machine-pistols Germany is liberated from "militarism," from German militarism....