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Volume V · Page 288
| [sub…] ject: "The high name of the law
would in case of such an interpretation — right is what the state
proclaims to be right — only reserve the purpose of veiling the bare fact
that among men there exists no other order than the might of the strong over
the weaker." There exists an ethical world order which supersedes every
national conception of right and wrong, there is a legal conscience of nations
and an unwritten international law (common law of nations) to which every
individual and every state is subordinate in peace and in war in their actions.
What is contrary to law in the individual case, that again is decided by the judge according to his estimate and his standards, according not only to the opinion of his time but also of his people; he decides accordingly what his people accept as worthy in their lives and what they recognize as such. One can be so bold as to state then: Right and wrong is, even if one acknowledges the existence of a divine idea of right, nevertheless in its last analysis a political question. This becomes particularly obvious in wartime when the conceptions of right of the parties waging not diverge hopelessly, wherein not only the reason of state but also especially the "necessité de la guerre" plays an important part. I do not believe that the defendant Hermann Pook will be seriously held responsible for the medical experiments in the concentration camps and the so-called slave labor, but I wish to point out that just on this point particularly with respect to these two spheres, the distinction between right and wrong is not at all unequivocal and clear, this applies even more so to the setting up of concentration camps as such. 4. To this must be added that not every illegal act in itself is punishable under criminal law. Whoever violates a distinct law of nations, whether it arises from an international agreement or "out of custom established among civilized nations, out of the laws of humanity and the demands of the public conscience," is only then responsible in the eyes of criminal law if a genuine "jus strictum" (strictly defined law) is involved. In other words, not a must-precept or a recommendation which the parties to the agreement have given each other for their national legislation. An infraction of the rules of equity is since time immemorial not criminally punishable, for the rules of equity exist rather in the soul of the people and in the perception of the judge. The question of the jus strictum leads at the same time right back to the question of criminal responsibility. The Control Council Law gives fact cases which can be regarded as jus strictum only insofar as they are in conformity with fact cases of the national German penal code. It would be contrary to logic as well as to the generally accepted principles of modern penal law |
