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 5 of 8)

[Page 97]

DR. JAHRREISS, Continued:

It was not least of all under the impression of the surprising successes, or what were considered successes in Germany and abroad, especially during the course of this war, that he became this. Perhaps the German people are - even though with great differences between North and South, West and East - particularly easily subjected to actual power, particularly easily led by orders, particularly used to the idea of a superior. Thus the whole process may have been made easier.

Finally the only thing that was not quite clear was Hitler's relationship to the judiciary. For, even in Hitler Germany, it was not possible to kill the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the wide masses in their everyday life. Up to the highest group of party officials - this has been shown by some of the speeches by the then Reich Justice Leader, the defendant, Dr. Frank, presented here - there was resistance, which was actually not very successful, when justice in civil and ordinary criminal cases was also to be forced into the sic volo sic jubeo of the one man. But apart from the judiciary, which was actually also tottering, absolute monocracy was complete. The Reichstag's pompous declaration about Hitler's legal position, dated 26th April, 1942, was actually only the statement of what had become practice long before.

The Fuehrer's orders were law already a considerable time before this Second World War.

In this State order of his, the German Reich was treated as a partner by the other States, and this in the whole field of politics. In this connection I do not wish to stress the way (so impressive to the German people and so fatal to all

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opposition) in which this took place in 1936 at the Olympic Games, a show which Hitler could not order the delegations of foreign nations to attend, as he ordered Germans to the Nuremberg party rally in the case of his State shows. I should I like rather only to point out that the governments of the greatest nations in the world considered the word of this "almighty man" the final decision, incontestably valid for every German, and based their decisions on major questions on the fact that Hitler's order was incontestable. To mention only the most striking cases, this fact was relied upon when the British Prime Minister, Neville Chamberlain, after the Munich conference, displayed the famous peace paper when he landed at Croydon. This fact was adhered to when people went to war against the Reich as the barbarous despotism of this one man.

No political system has yet pleased all people who live under it or who feel its effects abroad. The German political system in the Hitler era displeased a particularly large and ever-increasing number of people at home and abroad. But that does not in any way alter the fact that it existed, not lastly because of the recognition from abroad and because of its effectiveness, which caused a British Prime Minister to make the now world-famous statement at a critical period, that democracies need two years longer than the totalitarian governments to attain a certain goal. Only one who has lived as if expelled from amongst his own people, amidst blindly believing masses who idolised this man as infallible, knows how firmly Hitler's power was anchored in the anonymous and innumerable following who believed him capable only of doing what was good and right. They did not know him personally, he was for them what propaganda made of him, but he was so uncompromising that everybody who saw him from close to and saw otherwise, knew clearly that resistance was absolutely useless and, in the eyes of other people, was not even martyrdom.

Would it therefore not be a self-contradictory, proceeding if both the following assertions were to be realised at the same time in the rules of this trial?

(1) The Reich was the despotism of this one man, and for this very reason a danger to the world.

(2) Every functionary had the right - in fact the duty - to examine the orders of this man and to obey or not obey them according to the result of this examination.

The functionaries had neither the right nor the duty to examine the orders of the monocrat to determine their legality. For them these orders could not be illegal at all, with one exception which will be discussed later - an exception which, if carefully examined, is seen to be only an apparent one - namely, with the exception of those cases in which the monocrat placed himself - according to the indisputable values of our times - outside every human order, and in which a real question of right or wrong was not put at all and thus a real examination was not demanded.

Hitler's will was the ultimate authority for their considerations on what to do and what not to do. The Fuehrer's order cut off every discussion. Therefore: A person who as a functionary of the hierarchy refers to an order of the Fuehrer's is not trying to provide a ground for being exempted from punishment for an illegal action, but he denies the assertion that his conduct is illegal; for the order which he complied with was legally unassailable.

Only a person who has understood this can have a conception of the difficult inner struggles which so many German officials had to fight out in these years in face of many a decree or resolution of Hitler. For them such cases were not a question of a conflict between right and wrong: disputes about legality sank into insignificance. For them the problem was one of legitimacy: as time went on, human and divine law opposed each other ever more strongly and more frequently.

Therefore: Whatever the Charter understands by the orders which it sets aside as a ground for exemption from punishment, can the Fuehrer's order be meant by this? Can it come within the meaning of this rule? Must one not accept this order for what it was according to the interior German constitution as it had developed, a constitution which had been explicitly or implicitly recognized by the I

[Page 99]

community of States? Many Germans did not like Hitler's position of power from the very beginning, and to many Germans who welcomed it at first, because they yearned for clear and quick decisions, it later became a horror. But that does not in any way alter the following fact: must not those people who did their duty in this hierarchy, willingly or unwillingly, in accordance with this constitution, feel that an injustice was being done to them if they were sentenced because of a deed or an omission which was ordered by the Fuehrer?

A community of States could refuse to accept or tolerate as members such States as have a despotic constitution. But up to now this has not been the case. If it is to be different in the future, the non-despotic Powers must take the necessary steps to prevent any member of the family of States turning into a despotic Power, and to prevent any despotic Power entering the family circle from outside. Today people are realising more and more clearly that this is the crux of our question. The circumstances must be very special if a modern people lets itself be governed despotically, even if it is as well disciplined as the German people. But as soon as such circumstances do exist, there are no internal counter-measures left. Then only the outside world can help. But if, instead of this, the outside world recognises this constitution, it is impossible to see where successful internal resistance can come from. In pointing to these special circumstances and to the recognition by the outside world, we draw attention to facts, for the existence of which no German was, in our case, responsible but which cannot be ignored when one asks how all this was possible.

But certain further facts must also be drawn attention to, without a knowledge of which one cannot fully grasp the fact that Hitler's absolute monocracy was able to get such a terribly firm hold. Hitler combined in his person all the powers of issuing legislative' and administrative orders on the highest level, orders which could not be questioned and were absolutely valid, but immediately below him the power of the State was divided up into a vast mass of spheres of competence. But the dividing lines between these spheres were not always sharply drawn. In the modern State, particularly in the major States of a technical era, this cannot be avoided. But the tendency to exaggerate questions of competence is certainly no less marked in Germany than in any other country. This facilitated the erection of dividing lines between the departments. Every department watched jealously to see that no other one trespassed into its field. It everywhere suspected tendencies of other departments to expand; considering the great mass of tasks which the so-called "totalitarian" State had heaped upon itself, cases where two or three departments were competent for the same matter could not be avoided. Conflicts between departments were inevitable. If a conspiracy existed, as the Indictment assumes, the conspirators were remarkably incompetent organisers. Instead of co-operating and going through thick and thin together, they fought each other. Instead of a conspiracy we rather have a divergence. The history of the jealousy and mistrust between the powerful persons under Hitler has still to be written. And let us now remember that in the relations between all departments, and within each department, people surrounded themselves with ever-increasing secrecy; between departments and, within the department, between ranks and within the various ranks, more and more matters were classed as "secret". Never before has there been so much "public life", i.e., non-private life, in Germany as under Hitler; but also never before was public life so screened from the people, above all from the individual members of the hierarchy themselves, as under Hitler.

The one supreme will became, quite simply, technically indispensable. It became the mechanical connecting link for the whole. A functionary who met with objections or even resistance to one of his orders from other functionaries only needed to refer to an order of the Fuehrer to get his way. For this reason many, very many, among those Germans who felt Hitler's regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety

[Page 100]

to the time when this man would disappear from the scene: for what would happen when this connecting link disappeared. It was a vicious circle.

I repeat: an order of the Fuehrer was binding - and indeed legally binding - on the person to whom it was given, even if the directive was contrary to International Law or to other traditional values.

But was there really no dividing line? During the first period at any rate, i.e., just at the time when the foundations of power were being laid, at the time when the monocratic constitution was being developed step by step - Hitler's followers amongst the people saw in their Fuehrer a man close to the people, a selfless, almost superhumanly intuitive and clear-thinking pilot, believed only the best of him and only had one worry: whether he was also choosing the right men as his assistants and whether he was always aware of what they were doing. This tremendous power, this unlimited authority was given to this Hitler. As in every State it also included harsh orders. But it was never intended as authority to be inhuman. Here lies the dividing line. But this line has at no time and nowhere been quite clearly drawn. Today the German people are completely disrupted in their opinion, feelings and intentions; but they are probably in agreement on one thing, with very few exceptions: they would not wish to draw this line with less severity as accusers than other peoples do towards their leaders. Beyond that line, Hitler's order constituted no legal justification.

But it must not be forgotten that this line is not only vague by nature but follows a different course in peace to what it does in war, when so many values are changed, and when men of all nations, especially in our days, take pride in deeds which would horrify them at any other time. And the decision to wage war does not in itself overstep that line, in spite of its tremendous consequences. Not in any nation in the world.

Hitler himself, at any rate, did not recognize this dividing line of inhumanity, of non-humanity, as a limit of obedience in his relations with his subordinates, and here also opposition would have been considered a crime punishable by death in the eyes and for the decisions of this man with limitless power who controlled an irresistible machine. What should a man who received an order overstepping this line have done? A terrible situation! The reply of Greek tragedy, the reply of Antigone in such a conflict cannot be imposed. It would be Utopian to expect it, or even demand it, as a mass phenomenon.

Before we come to the special question of who in the Reich possessed the power of deciding about war and peace, a further word remains to be said about the forms which Hitler's orders assumed. Hitler's orders are solely the decisions of this one man, whether they were given orally or in writing, and in the latter case, whether they were clothed in more or less ceremony.

There are some orders by Hitler which can be recognized as such immediately. They are called "Erlass" (Decree) like the Decree concerning the setting up of the Protectorate of Bohemia and Moravia of 16th March, 1939, or "Verordnung" (Order), like the order for the execution of the Four-Year Plan of 19th October, 1936, or "Weisung" (Directive), like the strategic decisions so often cited during this trial, or simply "Beschluss" (Decision) or "Anordnung" (Instructions); often they are signed in Hitler's name only; sometimes we find the signatures of one or more of the high or highest civil or military functionaries as well. But it would be fundamentally wrong to assume that this was a case of counter-signatures as they are understood in the modern democratic constitutional law of nations ruled constitutionally or by a parliament - of a counter-signature which makes the signatory responsible to a parliament or to a State court of law. Hitler's orders were his own orders and only his own orders. He was much too fanatical a champion of the one-man doctrine, i.e., of the principle that every decision must be made by one - and only one - man, to consider anything else even possible, above all things in the case of his own decisions. We will leave his high opinion of himself entirely aside in this connection. Whatever the more or less decorative significance

[Page 101]

of such counter-signing may have been, there was never any doubt that the, Fuehrer's orders represented only his own decision and no one else's.

Special attention must here be drawn to those laws which appeared as Reich Cabinet laws or Reichstag laws.

Hitler's signing of a law of the Reich Cabinet represented the formal certification of a Cabinet decision. In actual fact, however, a stage was reached where the Reich Cabinet laws were also solely decisions by Hitler who had previously given some of his ministers the opportunity to state the opinion of their departments. And when Hitler signed a law which, according to its preamble, had been decreed by the Reichstag, this was again only a case of a formal certification. In reality, however, it was a decision by Hitler. From November, 1933, onwards at the latest, the German Reichstag was not a parliament but an assembly for the acclamation of Hitler's declarations or decisions. These scenes of legislation appeared to many people, at home and abroad, almost to be an attempt to make democratic forms of legislation ridiculous by caricaturing them; nobody - either at home or abroad - regarded them as proceedings during which an assembly of several hundred men arrived at a decision after consideration, speeches and counter-speeches.

There are, however, also orders by Hitler which are not signed by him, but which can immediately be recognized as his orders. They are drawn up by a Reich Minister or some other high functionary, who states in the introduction "The Fuehrer has ordered," "The Fuehrer has decreed." We have before us not an order by the signatory, but a report by the signatory on an order given orally by Hitler. The orders by Hitler as Supreme Commander-in-Chief of the Armed Forces were thus often clothed in the form of such a report.

Finally there are orders by Hitler which can only be recognized as such by a member of the public if he possesses knowledge of the constitutional position. When the Supreme Command of the Armed Forces (the OKW) issues an order, it is always an order by Hitler; Hitler himself, together with his working staff, was the OKW. The power to issue OKW orders rested solely with Hitler.

By my explanations regarding the constitution of the Hitler Reich, I have already - so to speak by implication - dealt with the question as to who was responsible for the ultimate decisions - for this State's decisions regarding questions of existence, especially for the decision about war and peace ....

Kelsen said - in his great treatise of the year 1943, which I have already mentioned above - "probably the Fuehrer alone." We must say: Quite definitely alone.

Under the Weimar Constitution, the sole body responsible was the Reich legislature. For Article 45 demands a Reich law for a declaration of war and for the conclusion of peace. And a Reich law could be passed only by the Reichstag or by a vote of the German people. Neither the Reich President, i.e., the Head of the State, nor the Reich Cabinet had the power. They might, at most, have created such circumstances by acts lying within their jurisdiction - possibly the Reich President as Commander-in-Chief of the Armed Forces - as to give the Reich legislature no option in its decision; a problem which, as far as I know is well known, has become a real one in the United States with regard to the relationship of the President to Congress and has, therefore, been seriously discussed, while it was not a real one for the Germany of the Weimar Constitution. If, however, the Reich legislature had, by means of a law, taken the decision to wage war, the Reich President and the whole State hierarchy, particularly the armed forces, would have been bound by this decision with no right of examination, let alone of objection, even if all the experts on International Law in the world had regarded the law as contrary to International Law. The Weimar Democracy could have tolerated as little as any other nation a state of affairs in which military leaders as such could examine the decision to wage war taken by the political leaders, in the sense that they could refuse obedience if they thought fit. The military means of power must be at the disposal of the political leaders of a State. Otherwise

[Page 102]

they are not means of power at all. This has always been so. And it will have to be so all the more if the duty to give assistance against aggression is really to apply amongst the nations.

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