International Military Tribunal - The Nuremberg Trials - Complete Tribunal Proceedings (V. 2)

The Defense is of the opinion that justice does not demand a trial against Krupp in absentia, that this would even be contrary to justice. I want to quote the following reasons: The decision on this question must come from the concept of justice in the sense of Article 12 of the Charter. We must take into account here that the 12th Article is purely a regulation concerning procedure. The question arises, however, whether the Trial against Krupp in his absence would be a just procedure. In my opinion, a just procedure is only then given if it is, as a whole or in its particular regulations, fashioned in such a way that an equitable judgment is guaranteed. That is a judgment whereby the convicted defendant will be punished accordingly and the innocent exonerated from guilt and punishment.

Is it possible that a just judgment can be guaranteed if a defendant is tried in absentia, who through no fault of his own, cannot appear and defend himself, who cannot inform his defense counsel, and who does not even know that he is accused and for what reason? To ask this question is to deny it. Even the regulations of the Charter concerning the rights of the defendant in the preliminary procedure and in the main Trial, oblige us to answer this question with “no”.

The following regulations are applicable here:

According to Article 16 (a), the accused shall receive a copy of the Indictment before the Trial.

According to Article 16 (b), the defendant in the preliminary procedure, and in the main Trial, has the right to declare his own position in the face of each accusation.

According to Article 16 (c), a preliminary interrogation of the defendant should take place.

According to Article 16 (d), the defendant shall decide whether he wishes to defend himself or to have somebody else defend him.

According to Article 16 (e), the defendant has the right to submit evidence himself and to cross-examine each witness.

The Defendant Krupp could not make use of any of these rights.

According to Article 24 the same also applies to the special rights, which have been accorded the defendants for the main Trial: The defendant should declare his position in the main Trial, that is, whether he pleads guilty or not.

In my opinion, this is a declaration which is extremely significant for the course of the Trial and of the decision, and the defendant can only do this in persona. I do not know whether it is admissible that Defense Counsel may make this declaration of “guilty” or “not guilty” for the defendant, and even if this were admissible, Defense Counsel would not be able to make this declaration because he had no opportunity to come to any understanding with the defendant.

Finally, the accused, who is not present, cannot exercise his right of a final plea.

The Charter, which has decreed so many and such decisive regulations for the rights of the defendant, thereby recognizes that the personal exercise of these rights which were granted to the accused is an important source of knowledge for the finding of an equitable judgment, and that a trial against such a defendant, who is incapable of exercising these rights through no fault of his own, cannot be recognized as a just procedure in the sense of Article 12.

I should like to go further, however, by saying that the procedure in absentia against Krupp, would be contrary to justice, not only according to the provisions of the Charter but also according to the generally recognized principles of the law of procedure of civilized states.

So far as I am informed, no law of procedure of a continental state permits a court procedure against somebody who is absent, mentally deranged, and completely incapable of arguing his case. According to the German Law of Procedure, the trial must be postponed in such a case (Paragraph 205 of the German Code of Criminal Law). If prohibiting the trial of a defendant, who is incapable of being tried, is a generally recognized principle of procedure (principe général de droit reconnu par des nations civilisées) in the sense of Paragraph 38 (c) of the Statute of the International Court in The Hague, then a tribunal upon which the attention of the whole world is, and the attention of future generations will be directed, cannot ignore this prohibition.

The foreign press, which in the last days and weeks has repeatedly been concerned with the law of the Charter, almost unanimously stresses that the formal penal procedure must not deviate from the customs and regulations of a fair trial, as is customary in civilized countries; but it does not object, as far as the penal code is concerned, to a departure from the principles recognized heretofore, because justice and high political considerations demand the establishment of a new international criminal code with retroactive effect in order to be able to punish war criminals.

I wish to add another point here, which may be important for the decision on the question discussed. This High Court would naturally not be able to acquire an impression of the personality of Krupp, an impression which in such an extraordinarily significant trial is a valuable means of perception, which cannot be underestimated for the judgment of the incriminating evidence. If, in the Charter, trial in absentia is permitted on principle against defendants who cannot be located, then corresponding laws of procedure of all states, and even of the German Code of Criminal Procedure agree to that.

A defendant who has escaped is absolutely different from a defendant who cannot argue his case, because in contrast to the latter, he has the possibility of appearing in court and thus, of defending himself. If he deliberately avoids this possibility, then he arbitrarily makes himself responsible for the disadvantages and dangers entailed by his absence. In this case, naturally, there would be no question of an unjust trial.

The view has been expressed in recent days and weeks that world opinion demands a trial against the Defendant Krupp under all circumstances, and even in absentia, because Krupp is the owner of the greatest German armament works and also one of the principal war criminals. So far as this demand of world opinion is based on the assumption that Krupp is one of the principal war criminals, it must be replied that this accusation is as yet only a thesis of the Prosecution, which must first be proved in the Trial.

The essential thing, however, in my opinion, is that it is not important whether world opinion or, perhaps, to use an expression forged in the Nazi work-shop, “the healthy instincts of the people,” or even political considerations play a part in the decision of this question, but that the question (Article 12) must be decided uniquely from the point of view of whether justice demands the trial against Krupp. I do not want to deny that the cries of justice may be the same as the cries echoing world opinion. However, the demands of world opinion and the demands of justice may be in contradiction to each other.

In the present case, however, a contradiction between the demands of world opinion for a trial against Krupp in absentia and the demands of justice exists because, as I just related, it would violate the recognized principles of the legal procedures of all states and especially Article 12 of the Charter, to try a mentally deranged man who cannot defend himself in a trial in which everything is at stake for the defendant,—his honor, his existence, and above all, the question of whether he belongs to the accursed circle of the arch-war criminals who brought such frightful misery to humanity and to their own Fatherland. I do not even wish, however, to put the disadvantages and dangers for the man and the interests of the defendant into the foreground. Much more significant are the dangers and disadvantages of such an unusual procedure for basic justice, because the procedure against such a defendant, who is unfit for trial due to his total inability to conduct his defense properly, cannot guarantee a just and right decision. This danger for basic justice, must, in my opinion, be avoided by a court of such unequalled world historical importance, which has assumed the noble and holy task, by punishment of the war criminals, of preventing the repetition of such a horrible war as the second World War and of opening the gates to permanent peace for all peoples of the earth.