The Question of German Guilt

In the midst of war there is the possibility of inhibitions. Kant’s injunction, that nothing must happen in war which would make reconcilement flatly impossible, was first rejected on principle by Hitler Germany. As a result, force, essentially unchanged from time immemorial and with the measure of its destructive possibilities determined now by technology, is boundlessly with us. To have begun the war in the present world situation—this is the enormity.

(2) The trial is said to be a national disgrace for all Germans; if there were Germans on the tribunal, at least, then Germans would be judged by Germans.

Rejoinder: The national disgrace lies not in the tribunal but in what brought it on—in the fact of this régime and its acts. The consciousness of national disgrace is inescapable for every German. It aims in the wrong direction if turning against the trial rather than its cause.

Moreover: Had the victors named a German tribunal, or appointed Germans as associate judges, this would make no change at all. The Germans would not sit on the court by virtue of a German self-liberation but by the grace of the victors. The national disgrace would be the same. The trial is due to the fact that we did not free ourselves from the criminal régime but were liberated by the Allies.

(3) One counterargument runs as follows: How can we speak of crimes in the realm of political sovereignty? To grant this would mean that any victor can make a criminal of the vanquished—and the meaning and the mystery of God-derived authority would cease. Men once obeyed by a nation—in particular former Emperor William II and now “the Fuehrer”—are considered inviolable.

Rebuttal: This is a habit of thought derived from the tradition of political life in Europe, preserved the longest in Germany. Today, however, the halo round the heads of states has vanished. They are men and answer for their deeds. Ever since European nations have tried and beheaded their monarchs, the task of the people has been to keep their leaders in check. The acts of states are also the acts of persons. Men are individually responsible and liable for them.

(4) Legally we hear the following argument: There can be crimes only insofar as there are laws. A crime is a breach of these laws. It must be clearly defined and factually determinable without ambiguity. In particular—nulla poenasine lege—sentence can only be passed under a law in force before the act was committed. In Nuremberg, however, men are judged retroactively under laws now made by the victors.

Rebuttal: In the sense of humanity, of human rights and natural law, and in the sense of the Western ideas of liberty and democracy, laws already exist by which crimes may be determined.

There are also agreements which—if voluntarily signed by both sides—create such a superior law that can serve as a yardstick in case a contract is broken.

And the jurisdiction, which in the peaceful order of a state rests in the courts, can after a war rest only in the victor’s tribunal.

(5) Hence the further objection: Victorious might does not make right. Success cannot claim jurisdiction over right and truth. A tribunal which could investigate and judge war guilt and war crimes objectively is an impossibility. Such a court is always partisan. Even a court of neutrals would be partisan, since the neutrals are powerless and actually part of the victors’ following. To judge freely, a court would have to be backed by a power capable of enforcing its decisions against both disputants.

This argument, of the illusive nature of such justice, goes on to say that every war is blamed on the loser. He is forced to admit his guilt. His subsequent economic exploitation is disguised as restitution. Pillage is forged into a rightful act. If the right is not free, let us have naked force—it would be honest, and it would be easier to bear. In fact, there is nothing beside the victor’s power. Recrimination as such can always be made mutual; but only the victor can make his charges stick, and he does so ruthlessly and solely in his own interest. Everything else merely serves to disguise the actual arbitrary force of the powerful.

And: The tribunal’s illusive nature finally shows in the fact that the so-called crimes are prosecuted only if committed by a vanquished nation. In sovereign or victorious nations the same acts are ignored, not even discussed, much less punished.

Rebuttal: Power and force are indeed decisive realities in the human world, but they are not the only ones. To make them absolute is to remove all reliable links between men. While they are absolute, no agreement is possible. As Hitler actually said, agreements are valid only while they represent self-interest. (And he acted accordingly.) But this is opposed by a will which, admitting the reality of power and the effectiveness of the nihilistic view, holds them undesirable and to be changed at any cost.