The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-First Day: Thursday, 4th July, 1946
(Part 4 of 8)

[Page 93]

DR. JAHRREISS, Continued: Now the French Chief Prosecutor - if I understand correctly - recognized the sovereignty of States in his humanly very moving speech, and quite rightly saw that an unbridgeable gulf exists between the Charter and the existing International Law, when it wants to see individuals punished as criminals for breach of international peace. He therefore shifts the trial from the plane of International Law to that of constitutional law. It might possibly have happened that a German State power would have settled accounts after the war with those people who were responsible for launching the war. As the whole life of the German people is crippled today, those foreign Powers who, in co-operation with each other on the basis of treaties, have territorial power in Germany, are undertaking this settlement of accounts. The Charter has laid down the rules which are to guide the Tribunal in its investigation and verdict.

One can here leave unexamined whether this opinion is legally right or not. Even if it is right, our question is not altered thereby. When looking at the problem from this point of view, no less than from that of International Law, we must know how far the Charter creates penal law with retroactive force. But we must now measure the regulations of the Charter not only against the International Law which was valid for Germany and was transformed into national law - as people are wont to say - but also against the national criminal law which was binding on the defendants at the time of the deed. It is, after all, possible for a State, a member of the community of States, to be more cosmopolitan in its criminal law than the current International Law. The rule of the Charter which is new with regard to existing International Law may correspond to an already existing national law, and then it would not be a criminal law with retroactive force. So how was the breach of peace between States - particularly the breach of non-aggression pacts - treated in the national criminal law to which the defendants were subject at the time of the preparation and launching of the war?

It is possible that, in a State, these people are threatened with punishment who have prepared, or launched or waged a war in breach of the international obligations of that State. That would actually be completely unpractical. For the result of a war also decides the internal settling of accounts. No criminal court threatens a victorious government. But, in case of defeat, the defeat itself gives the measures of the settlement of account. In any case the regulations of the Charter regarding punishment for breach of the peace between States are new for the national criminal law which the defendants were subject to at the time of the deed. But if one does not understand the phrase nulla poena sine lege pravia as it is understood on the European continent, i.e., as meaning that law in the sense of "lex" is a rule laid down by the State, a State law, but is of the opinion which - as far as I can see-is peculiar to English legal thinkers, that law in the sense of " lex " can also be a deeply rooted rule of ethics, or morality, we have one question left: As things happened to be, did the defendants - formerly ministers, military leaders, directors of economy, heads of higher authorities - feel at the time of the deed, or could they have felt that a behaviour which is now made punishable by a retroactive law was against their duty?

The answer to this question cannot be given unless one has an insight into the nature of the constitution of the German Reich at the moment of the deed.

The German Reich was incorporated into the community of States in that form, with that constitution, which it happened to have at any given moment. Such is the case with every member of the community of States. The United States and the British Empire, the Union of Soviet Socialist Republics and the French Republic, Brazil and Switzerland, stand in the framework of the family of nations with that constitution which they happen to have at the time.

The prosecution has, with full justification, tried to give a picture of this concrete legal structure of the Reich. For, without trying to do this, no one in this trial will be able to arrive at a decision regarding right and wrong. In addition it seems to me that many ethical questions which have been raised here require such an attempt to be made. But I am afraid that, with the picture presented by the

[Page 94]

prosecution, it is not possible to arrive as close to the truth as is possible in spite of the complex nature of the subject.

The prosecution starts with the conception of a conspiracy to conquer the world on the part of a few dozen criminals. The German State, if one looks upon things in this way, becomes a mere shadow or tool. But this State had long been in existence; no one could set aside the enormous weight of its history. It was only various things in this history, at home and especially abroad, that made Hitler's rise to power at all possible or which made it easier for him, and it was many things in this history that guided, urged on, limited or put a brake on Hitler in his choice of aims and means, and helped to decide the success or failure of his measures and undertakings.

The prosecution was certainly right in laying great stress on the so-called Fuehrer principle. This so-called Fuehrer principle was, in fact, for the eyes and even more for the ears of the German people and of the world in general, the organisational guiding principle in the development of the Reich constitution after 1933,

It was certainly never unambiguous and it considerably changed its character during the course of the years. In the life of men, leading and commanding present inherent contradictions.

There exists one - may I say - soulless, mechanical way of governing mankind, which is to rule by issuing commands; and there is another one, which is to lead the way by setting an example and to be followed voluntarily. This differentiation between two fundamentally different methods of governing men is often made difficult by the words used; in the German languages for instance, this is so because leading is sometimes called unconscious ruling, and ruling is sometimes called leading. Furthermore, the differentiation is rendered more difficult by the fact that it is at one time leading and at another commanding that governs the relations between the same persons or by the fact that methods which are actually applicable to leading are used for ruling, and vice versa. Every State has been, is, and will be faced by the question of how it is to link up both these methods, so that they complement, advance and keep a check on each other. Both methods appear continually and everywhere. There has never yet been a really great ruler who was not also a leader. But minor rulers are also subject to this law. And the Hitler regime brought about - at least to begin with - a synthesis of both methods which had at least the appearance of being tremendously efficient.

To this synthesis has been attributed - perhaps not unjustly - much of what the world saw with wonder, sometimes approvingly but more often disapprovingly, as the result of an unheard-of mobilization, concentration and increase in the energies of a nation.

This particular synthesis of leading and commanding found its strongest expression in the person of Hitler himself, in his actions of leading, for instance in his speeches, and in his commands. These became the motive power of the German political life of that time. Justice must be done above all to this phenomenon. It is of absolutely decisive importance for judging the enormous mass of facts which has been produced here. With all the caution which is natural to men, who think along scientific lines and which imposes on them an almost unconquerable mistrust of any attempt to comprehend and evaluate events which have happened so recently, one can perhaps risk this assertion. In the course of the years, Hitler gave commanding an increasingly favoured place to the detriment of acts of leading, and finally brought it so much to the fore that commands and not the act of leading became the all-decisive factor. Hitler, the man of the people, became more and more the dictator. The speeches in which he repeated himself ad nauseam even for his most willing followers and over-shouted to the irritation even of members of his entourage who had faith in him, became rarer, but the legislative machine worked faster and faster. A later age will perhaps realize how far the great change in the attitude of the German people to Hitler,

[Page 95]

which was beginning even before the war, was the cause or effect of this state of affairs.

While, on the superficial question, i.e., the question as to how he wished to be designated, Hitler pressed not to be called "Fuehrer and Reich Chancellor" and longer but only "Fuehrer", the way in which the State was being governed was following the exactly opposite path; leading disappeared more and more any there remained naked domination. The Fuehrer's orders became the central element of the German State edifice.

In the public hierarchy, this development brought with it rather an increase than a decrease in Hitler's power. The great majority of German officials and officers had seen nothing behind the organized leadership but a machinery of domination with a new label and, if possible, of an even more bureaucratic nature, side by side with the inherited State machinery. When Hitler's orders became the Alpha and Omega, they felt themselves, so to speak, back in the old familiar path. The queer and puzzling part was gone.

They were back in their world of subordination. Nevertheless, this development had given the Fuehrer's orders a special aura of sanctity for them too; there was no contradicting these orders. One could perhaps raise objections but if the Fuehrer held to his orders, the matter was decided. His orders were something quite different from the orders of any official of the hierarchy under him.

Here we have come to the fundamental question in this trial: What position did Hitler's orders occupy in the German constitution? Did they belong to the type of orders which were set aside by the Charter of this Tribunal as grounds for the exclusion of punishment?

It was perhaps harder for a lawyer who grew up in the habits of the so-called constitutional State ("Rechtsstaat") than for other people to witness the slow and then ever more rapid disintegration of the guarantees of the constitutional State; for he never came to feel at home in the new order and always stood half outside it. But, for this very reason, he probably knows more than anyone else about the peculiarities of this new order. An attempt must be made to make it comprehensible.

State orders, whether they lay down rules or decide individual cases, can always be measured against the existing written and unwritten law, but also against the rules of International Law, morals and religion. Someone, even if only the conscience of the person giving the orders, always asks whether the person giving the order has ordered something which he had no right to order? Or: has he formed and published his order by an inadmissible procedure? But an unavoidable problem for all domination lies in this: Should or can it grant the members of its hierarchy, its officials and officers, the right - or even impose on them the, duty - to examine at any time any order which demands obedience from them, to determine whether it is lawful, and to decide accordingly whether to obey or refuse?

No domination which has appeared in history to date has given an affirmative answer to this question. Only certain members of the hierarchy were ever granted this right; and they were not granted it without limits. This was also the case, for instance, under the extremely democratic constitution of the German Reich during the Weimar Republic and is so today under the occupation rule of the four great Powers over Germany.

In as far as such a right of examination is not granted to members of the hierarchy, the order has legal force for them.

All constitutional law, that of modern States as well, knows acts of State which must be respected by the authorities even when they are defective. Certain acts of laying down rules, certain decisions on individual cases which have received legal force, are valid even when the person giving the order has exceeded his competence or has made a mistake in form.

If only because the process of going back to a still higher order must finally come to an end, orders must exist under every government that are binding on the

[Page 96]

members of the hierarchy under all circumstances and are therefore law where the officials are concerned, even if outsiders may see that they are defective as regards content or form, if measured against the previous laws of the State concerned or against those outside the State.

For instance, in direct democracies, an order given as the result of a plebiscite of the nation is a fully valid rule or an absolutely binding decree. Rousseau knew how much the volonte de tous can be in contradiction to what is right, but he did not fail to appreciate that the orders of this volonte de tous are binding.

In indirect democracies the resolutions of a congress, of a national assembly or of a parliament may have the same force.

In the partly direct, partly indirect democracy of the Weimar Constitution of the German Reich, the laws resolved by a majority of the Reichstag large enough to alter the constitution and proclaimed by the President were under all circumstances law for all functionaries, including the independent courts of law, even if the legislator - knowingly or unknowingly - might have violated rules not imposed by the State but by Churches or by the community of States. In the latter case the Reich would have been guilty of an international offence. For it would not have seen to it that its legislation was in accordance with International Law. It would, therefore, have been responsible in accordance with the international regulations regarding reparation for international offences. But until the law concerned had been eliminated in accordance with the rules of German constitutional law, all officials of the hierarchy would have had to obey it. No functionary would have had the right, let alone the duty, to examine its legal binding force with the aim of obeying or refusing to obey it, depending on the result of this examination. This is not different in any other State in the world. It never was and never can be different. Every State has had the experience of its ultimate orders, its highest orders, which must be binding on the hierarchy if the authority of the State is to exist at all, being on occasion in conflict with rules not imposed by the State - to divine law, to natural law and to the laws of reason. Good governments take trouble to avoid such conflicts. To the great sorrow - indeed to the despair - of many Germans, Hitler frequently brought about such conflicts - and serious conflicts. And, if only for this reason, his way of governing was not a good one, even though it was for some years successful in some spheres. Only it must here be asserted straight away: These conflicts never affected the entire nation or the entire hierarchy - at least not immediately - but always merely groups of the nation or individual offices of the hierarchy; and it was only some of the people concerned who were fundamentally affected, many being only superficially involved; not to mention those conflicts that remained unknown to the over whelming majority of the people and of the hierarchy, nor, therefore, those orders by which Hitler not only showed himself to be inhuman in individual cases, but simply outside the pale of what is human. It is a purely academic question: Would Hitler's power have taken such deep root, or would it have maintained itself if these inhumanities had become known to larger sections of the people and of the hierarchy? They just did not.

Now in a State in which the entire power to make final decisions is concentrated in the hands of a single individual, the orders of this one man are absolutely binding on the members of the hierarchy. This individual is their sovereign, their legibus solutus, as was first formulated - as far as I can see - by French political science with as much logic as eloquence.

After all, the world is not faced by such a phenomenon for the first time. In former times it may even have seemed to be normal. In the modern world, a world of constitutions based on the separation of powers under the supervision of the people, absolute monocracy does not seem to be right in principle. And even if this is not yet the case today, one day the world will know that the vast majority of thinking Germans did not think any differently on this matter from the majority of thinking people of other nations of Europe and outside it.

[Page 97]

Such absolutely monocratic constitutions can nevertheless come about as the result of events which no individual can grasp in their entirety and even less control at will.

This is what happened in Germany from the beginning of 1933 onwards. This is what happened gradually, stage by stage, to the parliamentary Weimar Republic, which under Hindenburg was changed into a presidential republic, in a process which partly furthered the development by acts of State which stressed legal forms and which can be read in State documents, but partly simply formed the rules by accepted custom. The Reich law of 24th March, 1933, by which the institution of Reich Government laws was created and thus the separation of powers in the sense in which it had been customary was, in practice, eliminated, and, according to the transcript of the Reichstag session, brought about with a majority sufficient for altering the constitution. Doubts about the legality of the law have nevertheless been raised on the grounds that a section of the elected deputies had been kept away from the session by the police and another section of the deputies who were present had been intimidated so that only an apparent majority sufficient for altering the constitution had passed the law. It has even been said that no Reichstag, not even if everybody had been present and all of them had voted, could have abolished the fundamental constitutional principle of the separation of powers, as no constitution could legalise its own suicide. We need not go into this: the institution of government laws became so firmly rooted as a result of undisputed practice that only a formal jurisprudence that is entirely cut off from the realities of life can attempt to play off paragraphs against life and to ignore the constitutional change which had taken place. And for the same reason one's arguments are misguided if one ignores how the institution of government laws, i.e., of cabinet laws, was later changed by custom into one of several forms in which the Fuehrer legislated. At the base of every State order, as of any order whatsoever, there lie habit and custom. From the time when Hitler became head of the State, practice quickly led to him standing both before the hierarchy and before the whole people as the undisputed and indisputable possessor of all competence. The result of the development was at any rate that Hitler became the supreme legislator as well as the supreme author of individual orders.

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