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11 September 2015

A Court without Law, by Heinrich Haertle -- part 6

Ultima ratio regum -- the last argument of kings -- was an inscription on the cannons of Louis XIV. William Whewell, in his encyclopaedic work The Elements of Morality (1845), explains this Latin expression's significance for international law in a way that seems to resonate with Haertle's use of it. Whewell wrote:

Again, War is an armed contest: for States, having no common superior who can decide their disputes, have no other ultimate authority to which they can appeal. On this account War has been termed "ultima ratio regum." But still, though the contest is armed, it is a just, that is, a professedly just one. Though War is appealed to, because there is no other ultimate tribunal to which states can have recourse, it is appealed to for justice. [William Whewell, The Elements of Morality]

Hitler then, waging war as an ultima ratio, was seeking justice. It is interesting to compare Haertle's suggestion that Hitler's decision to go to war in 1939 exemplified ultima ratio -- in other words, war as the last resort after peaceful efforts had failed -- and Robert H. Jackson's declaration that the Nuremberg Tribunal represented "a continuation of the war-effort of the Allied nations." One side used war to achieve justice; the other used the pretense of justice for essentially warlike aims.

Prohibited War

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

Prosecutors and Judges had to walk on eggshells, because only in this way could they reach their chief goal: condemnation of the Germans for crimes against world-peace.

Twenty years after the death-sentences at Nuremberg the whole enormity of this rape of international law is becoming apparent. Never before in history did hostile powers face each other armed as in the present era, with an arsenal that, in number of weapons and their mass-murdering destructive potential, surpasses everything that humanity could ever imagine until now. Such a gigantic armament would have no purpose if war were not, as always, treated as an instrument of politics. Of course every power disavows arming for war as the ultima ratio of all politics. No, one arms only against the enemy's threat of war. The enemy however arms with the same rationale. And really it has always been that way, from the war-rhetoric of Homeric heroes to the present. The difference consists only in the fact that the armament today has reached a magnitude that, if used, would necessarily destroy both participants. If however such arsenals are maintained and even continue to be increased, then the strongest demonstration of will is to refuse to renounce war as a political tool despite the risk of destroying humanity. The quantity of armament shows the level of militarism that governs present-day world-politics.

If anything can indicate the corruption of present-day politics, it is the fact that precisely those states that sent German generals to the gallows for going to war as the ultima ratio of politics, intending to make an example of those men so as to prohibit war as an instrument of policy for all times, now face each other as potential belligerents of the Third World War.

The atomic militarists of today presented themselves as immaculate pacifists. On 6 October 1945 the juristic representatives of today's mortal enemies meet: Jackson for the United States of America, François de Menthon for the French Republic, Hartley Shawcross for Great Britain, and R.A. Rudenko for the Soviet Union, for the signing of the bill of indictment. Under Count One, section IV.C.3, we find the classic statement that “war was a noble and necessary activity of Germans.” (Nuremberg Trial Proceedings, vol. 1)

This slander is not new. The whole of Allied war-propaganda from 1914 to 1945, and to some extent even into the present, operates on such assumptions. The only thing new in it is that now they are utilized not by paid agitators but by judges and prosecutors who are regarded as juristic authorities in their countries. The bill of indictment aims with this defamation at the real goal of this trial, “the continuation of the war-effort of the Allied nations,” as Jackson revealed early on. As they orate more loudly about peace, it is supposed to become less perceptible that they are continuing war with the methods of justice.

The Allied peace-angels meanwhile speculate about the understandable longing of all peoples for peace after the horrendous consequences of two World Wars essentially caused by precisely those powers that now would like finally to shackle the old god of war into the chains of their new paragraphs. Could there be a more effective means to divert attention from one's own guilt?

Because they must first invent laws against war, however, they create an appearance opposite to what they would like to simulate: they demonstrate to the world that such laws never existed before. The main crime that they want to punish does not yet legally exist, since as of 1939 there were no accepted international laws efficaciously condemning war as a crime that merited punishment and could be punished. There have been no such laws only for the simple reason that no lawgiver exists who could apply and enforce them. Therein the hypocrisy and double morality of the proceedings becomes apparent.

In the rationale for the verdict of 1 October 1946, after the convincing  refutation by the German defense, it is still asserted:

"The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement.”[1] The Law of Rudenko is still regarded as “absolute and binding.”

The so-called “crime against peace” is defined under II, Article 6 of the charter in the following manner:

CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.[Charter of the IMT at Nuremberg: II.6.a]

With consistent application of this retroactive “law”there would be no war in all of history that could not be declared a crime – and no officers, furthermore, that one would not have had to condemn to be hanged on the gallows of Jackson and Rudenko.
[1] The sentence is from a long statement read by Francis Biddle on the afternoon of 30 September 1946 (Nuremberg Trial Proceedings, vol. 22, p.460). The court's findings of guilt and sentences were issued the next day, on 1 October 1946.

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 -- meaning 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