The prerequisite for this pseudo-justice was the destruction of German sovereignty through the elimination of the Reich’s government. With naked arbitrariness one has robbed the German political and military leaders of the protection of sovereignty, in order first to make them into prisoners of war and then to exterminate them as bandits.
It is part of the natural law of genuine democracy that members of parliament have an immunity. In order to secure the independence of the people’s representation, no deputy may be held responsible officially or in court for his political decisions and votes. If in a genuine democracy such a protection is necessary already for domestic political reasons, how much more obligatory was it that the democratic victor-states respect the immunity of the military and political leaders who require a government for their foreign-policy dealings? The simple consideration that no minister and no general could prepare and carry out a war as a private citizen would necessarily have prevented them from being treated in this manner contrary to international law. Would Field-Marshall Keitel ever have been able or wanted to bring about a world-war out of personal motives as a private citizen? Would Grand Admiral Doenitz have been able to build up a u-boat force and to lead a sea-war against the global powers as a private citizen? They acted on the order of their head of state in the performance of the tasks assigned to them, and could therefore be responsible only to their sovereign.
This is however the difference between international law and private law, that the former knows only peoples and therefore states as accountable subjects of law. It is a law between states or communities of states. Especially the decision about war and peace has been the exclusive right of sovereign states. Although the act of coercion (Gewaltakt) at Flensburg could dissolve the legal government of the Reich, it could not therewith earn the right to proceed against members of a sovereign government as if they had been private persons. All maneuvers that are supposed to give legal justification retroactively to this act of coercion have thus failed absolutely. Only three years later the General Assembly of the United Nations pronounced the juristic death-sentence on the hangmen of Nuremberg.
On 9 December 1948 it refused to recognize the principles of the International Military Tribunal at Nuremberg as authoritative international law.
Had this decision been issued already during the trial, the judges at Nuremberg would have had to terminate their functions, if they did not want to be convicted and sentenced as judicial murderers.
To the glory of the German defense-team, it must be stated again and again that even during the trial they dare to refute all pseudo-juristic maneuvers that are supposed to justify the military tribunal. The defense-attorney of the former Reich’s Minister Alfred Rosenberg, Dr. Thoma, objects for example to the attempt to construct a personal responsibility of the members of the Reich’s government toward an international court created after the fact. Dr. Thoma states:
“The highest good, summum bonum, in international morals of nations has not yet been mandatorily codified. There does not exist any authoritative idea for the community of nations. Instead of discussions on individual ethics and individual criminality, the Prosecution should have submitted its accepted principles and criteria as international common law, which was not done.
“Therefore, with regard to the standpoint of the prosecuting authorities as to the personal responsibility of acting statesmen, I feel impelled to look upon this as a totally new philosophy and one which is very dangerous in its consequences.” [Alfred Thoma, IMT transcript, 10 July 1946]
Jackson had to admit indirectly in his letter to President Truman on 7 June 1945, that when the war began no international legal order existed that could designate the war as a crime and the war-wagers as criminals:
But International Law as taught in the Nineteenth and the early part of the Twentieth Century generally declared that war-making was not illegal and is no crime at law. Summarized by a standard authority, its attitude was that “both parties to every war are regarded as being in an identical legal position, and consequently as being possessed of equal rights.” [Robert H. Jackson, letter to President Truman, 7 June 1945, p.6]
Jackson has to “demand” the criminalization of war for the first time in 1945! We have already demonstrated exhaustively that this was precisely the legal situation that was internationally acknowledged also at the beginning of the war in 1939. Since war was not illegal, the war-wagers of 1939 were not punishable as “criminals against peace.” Dr. Stahmer already indicated in his petition of 19 November 1945 that even the League of Nations never could and never wanted to hold an individual personage of a belligerent country privately responsible for his tasks in the government. The practice of the League of Nations, he says, has been unambiguous on this point until the most recent period. It was however required to decide several times about the legality or illegality of the violent action of one of its members against another.
On several occasions the League had to decide upon the lawfulness or unlawfulness of action by force of one member against another member, but it always condemned such action by force merely as a violation of international law by the State, and never thought of bringing up for trial the statesmen, generals, and industrialists of the state which recurred to force. [Otto Stahmer, IMT transcript, 19 November 1945]
From the experiences with the League of Nations and the treaties of 1919-1939, especially after the total failure of the Kellogg Pact, the nations also after 1945 renounced codification of an individual responsibility of statesmen, for as long as there had been no success in constructing an international authority that would have been superordinated and thereby uniquely situated to call representatives of a particular state to account. Dr. Stahmer made the key observation about that:
And when, this summer, in San Francisco the new world-peace organization was established, no rule of law was created under which in the future an international court will punish those persons who launch an unjust war.” [Otto Stahmer, Defense Motion Challenging Jurisdiction of Tribunal, IMT transcript, 20 November 1945]
Never will the judges and prosecutors at Nuremberg be able to justify that, in spite of this decision reached already in 1945 by the highest international authority, at the same time they claimed the role of world-judges and international hangmen. In the same summer of 1945 they created their own “law” (“Recht”) in article 7 of the charter:
The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.[Charter of the IMT]
And still a year later, in the rationale for the verdict they confirm this principle completely contrary to international law:
… [T]he very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State.[IMT’s Judgement]
What are these “international duties” that are supposed to be stronger than the responsibility of politicians and military men to their own state? Who has established these international duties, who monitors compliance with them, and who punishes violation of them? An arbitrary construct is supposed to suffice for unhinging a right on which the sovereignty of the state is based. Consistently applied, this superordination of an international law over national laws must destroy these laws — and the state.
This causal nexus shows that the Allies were compelled to eliminate the government of the Reich in order destroy the sovereignty of the German state.
Only in this case was the specially invented international law to be applied.
Already it is a shameless presumption of politicizing advocates to claim the privilege of deciding from their absolute power what “international duty” might be. That is because out of 50 nations only 23 attended the London convention, and even these remained passive, so that in practice the authority over 50 states is claimed by the representatives of only 4 states: France, England, USA, and USSR.
