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 6 of 8)

[Page 102]

DR. JAHRREISS, Continued:

I have already shown how, in the course of a step-by-step transformation which laid particular emphasis on legal forms, Hitler replaced all the highest authorities of the Weimar period, and combined all the highest competences in his own person. His orders were law.

The circumstances in a State may be such that the man who is legally solely competent for the decision about war and peace has, in practice, no - or not the sole - authority. If however, both the sole legal competence and the sole authority in actual practice have ever been coincidental in any State such was the case in Hitler Germany, and if, in any question, Hitler ever even accepted the advice of a third party, such was not the case in the question of war or peace. He was the arbiter of war and peace between the Reich and other nations.

He alone.

In conclusion:

Sentences against individuals for breach of the peace between States would be something completely new legally, something revolutionarily new. It makes no difference whether we view the matter from the point of view of the British or the French Chief Prosecutors.

Sentences against individuals for breach of the peace between States presuppose other laws than those in force when the actions laid before this Tribunal took place.

The legal question of guilt - and I am here only concerned with that - is thus posed in its full complexity. For not one of the defendants could have held even one of the two views of the legal world constitution on which the Chief Prosecutors base their arguments.

THE PRESIDENT: Dr. Sauter, could we take up the time between now and one o'clock in dealing with that letter if you have it now, and possibly Dr. Exner also has his letter.

DR. SAUTER (counsel for defendant Funk): The defendant Walter Funk was questioned here as a witness under oath. After his examination, he told me that on one point his testimony was not quite correct, and he asked me to correct his testimony on this point. Since he himself had no opportunity to do so, on 17th June, 1946, I wrote the following letter to the President of the International Military Tribunal, which is signed by defence counsel Dr. Sauter as well as by the defendant Walter Funk personally. I shall read the text of the letter:

"Re: Penal case against Walter Funk; correction of the testimony:

The defendant Walter Funk in his cross-examination on 7th May said that he - that is, Funk - heard only through Vice-President Puhl of a deposit of the SS at the Reichsbank. The witness, Emil Puhl, when he was examined, testified that it was Funk who had spoken with the Reichsfuehrer SS Himmler and he - that is, Puhl - was then informed by Funk about the deposit to be set up. From the statements of the witness Emil Puhl the defendant Funk reached the conclusion that, in fact, on this point, the statement of the witness Emil Puhl is correct, and, after some consideration, the defendant Funk believed that he could remember himself that it was he, Funk, to whom Reichsfuehrer SS Himmler first applied concerning the establishment of a deposit for the SS and that he then informed Vice-President Puhl about this matter.

The statement by the defendant Funk under cross- examination was due to faulty recollection, because of the fact that these cross-examination questions of the prosecution had completely surprised and greatly disturbed Funk. Immediately after the examination of the witness Puhl, Funk informed me of his mistake and asked me to correct his factually incorrect statement on this point, since he himself would have no opportunity to do so.

[Page 103]

I bring this request of the defendant Funk, and I take the liberty of informing the President of the correct state of affairs. The defendant Funk agrees with this correction by co-signing this letter."
Then there are the two signatures, "Walter Funk" and "Dr. Sauter". That is the contents of the letter which I sent on 17th June, 1946, to the President to correct the testimony of Funk.

THE PRESIDENT: Thank you, Dr. Sauter.

Dr. Exner, have you got your letter that you may read it?

DR. EXNER (counsel for defendant Jodl): Mr. President, I was downstairs in the General Secretary's office, and I was promised it at one-thirty, but I have not yet received it. I am sorry; at the moment I am not in a position to fulfil your request.

THE PRESIDENT: You probably will have it at two o'clock.

(A recess was taken until 1400 hours.)

DR. EXNER: Mr. President, I shall read the letter dated 22nd June, 1946, sent to the International Military Tribunal:

"Mr. President:

During the cross-examination on the 6th day of June, 1946, the British prosecution presented Document 139-C to the defendant Jodl obviously thinking that the document showed evidence of preparatory measures for occupying the Rhineland as early as 2nd May, 1935 - "

THE PRESIDENT: I am told that the English is coming through on the Russian line.

(The proceedings suspended temporarily.)

THE PRESIDENT: Go on, Dr. Exner.


"The defendant Jodl has stated that he did not know the document. After looking through the document, he explained that it is quite obvious from the document that in the west, at any rate, there was no plan for any German action, but that definitely only defensive measures were being talked about. He did not discover where the operation 'Schulung' was supposed to take place, he could only guess.

Defendant Freiherr von Neurath has now informed him that in 1934 during the summer, Mussolini had stationed several divisions at the Brenner Pass in order to occupy northern Tyrol in the event of the 'Anschluss'. The defendant Jodl, after receiving this information, perused the document again, and he now imagines that according to this document an operation was to be prepared, to thrust the Italians back across the Brenner Pass in the event of their marching in. But he knows nothing about this affair.

The entire matter has nothing at all to do with the defendant Jodl, and for that reason I shall not refer to it during this session. He is extremely anxious, however, that it should not appear as if he had attempted to conceal anything."

It is signed "Exner" and "Jodl".


Now I call on Dr. Stahmer.

DR. STAHMER: Mr. President, to begin with, I should like to remark that I have still to complete the case Katyn. The case Katyn could not be incorporated into the book which has been submitted to the Tribunal, because the hearing of the evidence only took place on Monday and the day before yesterday. I shall have to present it, therefore, without its being in the book. It is only a brief presentation, and the interpreters will receive copies of my draft. Unfortunately, however, I cannot submit a translation to the Tribunal at the moment, as the [Page 104] hearing of the evidence was concluded only the day before yesterday and I could not work on it before. I shall add this at a suitable moment, and I hope that in spite of this I shall be finished within the time I mentioned.

THE PRESIDENT: Some second voice is coming through on the English line.

(The proceedings suspended temporarily.)

THE PRESIDENT: Is that all right now? Go on, Dr. Stahmer.

DR. STAHMER: When I mentioned the time I would require I could not take into account the Katyn case. Nevertheless, I hope that I shall be able to finish in the time which I have stated, as I am shortening the report in some places and I believe I shall have sufficient time.


May it please the Tribunal: this Trial, which is of historical and political importance, and of significance in shaping new laws and which is of dimensions such as have not been known hitherto in the history of law; these proceedings which concern not only the defendants present in court, but which are of the greatest importance to the German people, are now passing into a new phase.

The defence has the floor.

The position of the defence in these proceedings is especially difficult; for there is an all too unequal distribution of strength between the prosecution and the defence.

Months before the start of the trial the prosecution -

(Proceedings temporarily suspended.)

The difficult position of the defence is further aggravated by the fact that in the Anglo-American procedure on which this trial is based there is a clause missing which is contained in the German criminal procedure according to which the prosecution is also bound to procure and submit evidence exonerating the accused.

THE PRESIDENT: Dr. Stahmer, let me tell you that the statement you have just made is entirely inaccurate. There is no such thing as an English code of criminal procedure but it is the universal practice for the prosecution to disclose to the defence any document and any witness who assists the defence and therefore your statement is entirely false, and I believe the same practice obtains in the United States.

And as for what you say here about the defence being under any unfair difficulties as compared with the prosecution, that also is entirely inaccurate because I feel certain that the prosecution in this case have observed the same rules that would have been observed in England and would have disclosed to the defence any document or any witness over whom they had control, who would assist the defence, and there have been various occasions on which the prosecution have disclosed in this case to the defence documents which have been supplied to them which appeared to them to help the defence.

Every document which has been put in by the defence in this case, or practically every document, has been procured for them after great efforts by the prosecution, and investigations have been made all over Germany and I may say almost all over the world in order to help the defence.

DR. STAHMER: Thank you for your instruction, Mr. President.

After the reading of the Indictment, Reichsmarschall Goering in reply to the question of the presiding judge as to whether he pleaded guilty or not guilty, declared: "Not guilty in the sense of the Indictment." This statement of the accused necessitates an examination of all the charges made by the prosecution.

The accused has, of course, already dealt with many questions, which are of considerable importance for his defence, during his personal examination. He expressed his opinion in detail with regard to political and military developments

[Page 105]

and exhaustively described the motives for his actions, and the origin and course of events.

I am thankful to the High Tribunal for permitting the accused to portray matters to the total extent to which he saw, felt and experienced them, for this, and only this direct personal portrayal can afford good insight into the personal attitude of the accused and make it possible to give a reliable opinion of his personality. This knowledge is absolutely necessary if the Tribunal is to come to a decision which is not only in harmony with objective law but which also renders the maximum of justice to the individuality of the perpetrator.

I do not consider it necessary - after the accused has been heard so exhaustively on all particulars - to deal with every question to which he has already given the requisite explanation. For this reason I can limit the defence to the following statements:

We are in a transitory period of history of the greatest significance. An age is coming to an end which has been less known for its concept of order than for its concept of liberty. This striving for liberty released tremendous forces - so gigantic that in the end it was impossible to master them. The tremendous progress this era has unquestionably made in scientific and technical spheres we have dearly paid for with the shattering of all human order and the loss of peace in the entire world.

So far the profound reasons for such a disastrous development have hardly been discussed in this Court. But in order to rightly understand the grave crimes and confusion which are indicted here it is imperative to throw some light on the historical background.

The French Chief Prosecutor has already pointed out that the roots of National Socialism are to be found in a period far removed from us. He goes back to the beginning of the last century. He sees the first step to a leading astray of the German character in Fichte's Reden an die Deutsche Nation (Speeches to the German Nation). Fichte preached the doctrine of "Pan-Germanism", he says, in so far as he wanted to see the world planned and organized by others, just as he himself saw it and would have liked it to be shaped. I cannot understand how this should express more than the universal human desire to take part in the shaping of a common destiny. Only the methods of such attempts to participate may, at times, be justly criticized.

In order to save time I shall omit the following sentences and begin with the next paragraph.

If one wishes to think historically, one cannot look back and consider Fichte alone. For his Reden an die Deutsche Nation was only an answer to the Ruf an Alle (Call to Everyone) which the French Revolution had sent out into the world, and they were directly provoked by the appearance of Napoleon. One must go back over the chain of causes and effects to their very beginning. This, the beginning of a national and personal striving for liberty which has characterised the whole of modern times, we find in the Middle Ages.

The colourful play of national and imperial tendencies and struggles which had typified ancient times was overcome by the conception of one eternal omnipotent Christian Church. With this a State order superseded the dynamic forces of the time, an order which according to the doctrine of the Church was created by the Lord Himself and was therefore "by the grace of God" (von Gottes Gnaden). It strove to embrace universally all humanity and to lead to peace and rest in God. It was the teachers of the Church in the Middle Ages who first ventured to subject war to the principles of law. Prior to that it was accepted as a natural phenomenon, like sickness or bad weather, and was often looked upon as a judgement of God. Men like St. Augustine and Thomas Aquinas opposed this conception and declared that one must differentiate between a just and an unjust war. They did this upon the basis and within the framework of a Christian belief, by which God had entrusted mankind with the fulfilment of a moral world order to bind one and all,

[Page 106]

and which would provide the answer to the question of the righteousness or unrighteousness of a war.

When with the Renaissance and the Reformation the spiritual basis of the medieval order was shaken, this development into a universal world peace took on the opposite character. Life, formerly inclined towards an orderly peace based upon the State, now turned into a torrent which, as it swept faster through the centuries, gradually grew to the present catastrophe. The individual thirsting for freedom dispensed with the shackles of Church and class distinction. The State, declaring itself sovereign, violated the universal order of God as represented by the Church. Not recognising any superior power, it began to conquer as much living space (Lebensraum) as it could on this earth, as long as the stronger will of another nation did not impose any natural barriers on it. Peace hence existed only in the naturally rather unstable equilibrium of Powers, obeying only their own laws.

The theory of war as a crime created by Grotius, the teacher of International Law, quoted by the prosecution failed because it was incompatible with the dynamic power of this time. It embodies as we know only an attempt to keep alive through secular arguments the aforementioned concept of Christian warfare. One cannot, however, derive justice from nature alone. It knows no other measure than brute force. It, actually, always decides in favour of the stronger. Considered from a metaphysical standpoint, justice can be defined as an independent force, set above natural impulses. Therefore the theory of Grotius necessarily petered out in the eighteenth century since, thinking in a purely worldly sense, it could not find a criterion for a just war.

I shall then omit the following paragraph to save time.

[ Previous | Index | Next ]

Home ·  Site Map ·  What's New? ·  Search Nizkor

© The Nizkor Project, 1991-2012

This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.