Chapter XXII: Book 1: , Mr. President (10)

The United States had a great goal in view in 1927 and 1928, as I already mentioned. In the League of Nations the problem had been tackled only half-heartedly and with half measures, and this had perhaps done more harm than good to the cause of real peace. The Geneva Protocol had failed. Kellogg now wanted to overcome all the difficulties inherent in the problem and bring the world round by vitality and determination. The pact as published, with its two articles containing the renunciation of war and the obligation of peaceful settlement, seemed to still the yearning of humanity eager for some deed.

But the difficulties it was desired to surmount are in part rooted in the problem, and no rules laid down by any legislator will ever fully eliminate them. For even if unambiguous criteria existed, who among fallible mankind would have the authority to give a decision in case of dispute? We do not even possess unambiguous criteria for aggression and defense.[19] This holds good both for the so-called political concept, which is in a way natural, and for the legal concept or concepts of aggression and defense.

Yet these were not the only difficulties pointed out, explicitly and implicitly, by the French Government in the preliminary negotiations for the pact; they did so with the full title[20] of one who knows Europe and its ancient historical heritage just as the United States Government knows America and its vastly different history.

When the world came to know the notes exchanged during the preliminary negotiations with all their definitions, interpretations, qualifications, and reservations, it became manifest to what extent the opinions of the governments differed behind that wording. One saw the Soviet Government’s frank—even scathing—criticism of the refusal of the Western Powers to disarm and thus create the essential precondition for an effective policy of peace and generally of the vagueness of the treaty;[21] but especially of the famous British reservation of a free hand in certain regions of the world, that reservation which has often been called the British Monroe Doctrine or the Chamberlain Doctrine;[22] and one knew that in reality there existed only formal agreement behind the signatures and that no two powers were implying exactly the same thing by the treaty. Only on one thing did complete agreement exist: War in self-defense is permitted as an inalienable right to all states; without that right, sovereignty does not exist; and every state is sole judge of whether in a given case it is waging a war of self-defense.

No state in the world at that time was prepared to accept foreign jurisdiction concerning the question of whether its decisions on basic questions of its very existence were justified or not.

Kellogg had declared to all the nine states participating in the negotiations, in his note of 25 June 1928:[23]

“...The right of self-defense...is inherent in every sovereign
state and is implicit in every treaty. Every nation...is alone
competent to decide whether circumstances require recourse to
war in self-defense.”

The friends of peace were cruelly disappointed. What was the use of such a treaty anyway? They were only too right. Very soon afterward they heard with even greater grief of the course of the discussions in the American Senate. The ratification was, it is true, passed with 85 votes against 1, with a few abstentions; but if, behind the signatures of the contracting states there was no material agreement, there was even less behind the result of the vote in the Senate of that world power which was, as far as the conception and initiative was concerned, the leading one.

The discussions in the Senate, which will remain memorable for all time because of their earnest and profound character, showed—and several senators expressly said so—that the opinions of the senators were oscillating between two poles which were worlds apart. For some the treaty really meant a turning-point in world history; to others it appeared worthless, or at best a feeble or friendly gesture, a popular slogan, a sort of international embrace; to yet others as fertile soil for all the wars of the future, a gigantic piece of hypocrisy, as the legalization of war or even of British world control, or as a guarantee of the unjust _status quo_ of Versailles for France and Great Britain.

Some senators criticized the utter vagueness of the stipulations of the treaty even more bitterly than the Russian note. And if Kellogg’s declaration about the right of self-defense, which, according to the will of the signatory states, was an integral part of the treaty, was taken literally: What kind of war was then forbidden?[24] Sarcastic and ironical words were used in the Senate.

Nothing was gained by this Paris Pact if everything were to remain as at its conclusion. In the opinion of the great American expert on international law, Philip Marshall Brown, the pact unwittingly engendered by its ineptness the horrible specter of “undeclared war.”[25]

Those, Germans or non-Germans, who fought against Versailles because progress was blocked, and those, Germans or non-Germans, who criticized the League of Nations because it did more harm than good to the will toward progress, had all rejoiced for nothing at the end of August 1928. The decisive step had not been taken.

But above all the one thing which, though not sufficient in itself, is indispensable if a guarantee of peace is really to be created, the one thing that is necessary in the unanimous opinion of all who reckon with human frailty, was never tackled: To create a procedure by which the community of states, even against the will of the possessor, can change conditions that have become intolerable, in order to provide life with the safety valve it must have if it is to be spared an explosion.

The individual state, if at all, can avoid revolutions only by good legislation and an early adjustment of order to changing conditions; and the same is true of the community of states. Wilson also had this fundamental principle in mind, as we saw. One of the great British experts on international law, one of the enthusiastic, unconditional, and progressive adherents of the Paris Pact, McNair, took this into account too when, in 1936, he wanted to see placed beside collective force the collective and peaceful revision of conditions which had become dangerous.[26] And it was also taken into account by the American experts on international law, Borchard[27] and Fenwick,[28] in their warning illustration of the situation as regards international law shortly before the second World War. The Reich Government, by the way, had pointed out this problem, which overshadowed all others, in Stresemann’s note to the American Ambassador, dated 27 April 1928, when unconditionally agreeing to Kellogg’s proposal.[29]

Later, the problem of “collective revision” was never seriously tackled. This is not surprising, if only because the very character of such a procedure would presuppose renunciation of their sovereignty by the states. And can such a renunciation be considered in the times we live in? In Philip Brown’s melancholic opinion—“less than ever.”[30] For that reason a real forward step in the question as to how war could legally be outlawed was impracticable.

In spite of these intricate complications the Government of the United States and the League of Nations did a great deal to comply with the urgent demands of the nations. They subsequently tried to give the pact a precise content, and “teeth.” The doctrine of international law provided suggestions for this and checked it. Although it remained completely unsuccessful, we shall have to trace this process briefly, because the seed for the ideas contained in the Indictment are to be found here, insofar as its line of argument is not a political or ethical but a legal one.

In its ban on aggression, the Paris Pact unquestionably starts from the political concept of aggression. But that is quite indefinite. Shotwell and Brierly, among others, tried to assist immediately by deducing a legal concept of aggression from the second article of the treaty, which establishes the obligation to follow a procedure of peaceful settlement.[31] We can leave open the question whether it is permissible to apply this interpretation to the treaty. In practice nothing is gained by doing so; one kind of difficulty is simply put in the place of another. There are no fewer obscurities. Measures for peaceful settlement presuppose good will on both sides; what if that is lacking on one side or the other? And what still constitutes a measure of peaceful settlement, and what no longer does? The Russian Government were quite right in their note of 31 August 1928 on the Kellogg-Briand Pact when they brought up this question.

Other attempts to help tried to develop a completely new world constitution out of the entirely vague pact by way of logic. They are connected with the name of the American Secretary of State, Stimson, and with the work of the Budapest meeting of the International Law Association in 1934.[32] In order to understand this, it will be found necessary to assume that the Kellogg Pact really did bring about, in a legally conceivable manner, the unambiguous and unconditional renunciation of war. Then, of course, there exists no longer any right to wage wars as and when one likes. War waged in defiance of this prohibition is an offense against the constitution of the community of states. We are immediately faced by the question: Can the legal position of a state which attacks contrary to law be the same as that of a state which is being attacked contrary to law?

If one answers “no,” as does for instance the influential French commentator of the League of Nations Covenant, Jean Ray,[33] does not this mean the elimination of the most important fundamental principles of classic international law?

(1) Do the international laws of war—which, after all, spring from the right to wage war freely and from the duel-like character of war and certainly from the equality of the belligerents before the law—apply for the qualification of the acts of the belligerent powers against one another?

(2) Is it possible, or indeed permissible, that neutrality should still exist in such a war?

(3) Can the result of the war, assuming that the aggressor is victorious, be valid under law, especially when compressed into the form of a treaty, or must not the community of states deprive the aggressor of the spoils of his victory by a policy of nonrecognition? Should there not be, or must there not be, joint coercive action by the states against the aggressor?

It must be noted that not even theoretical law has drawn all possible conclusions. The practice of the states, after a few tentative beginnings in isolated points, never came to a definite conclusion in a single case.

With regard to the first point, the validity of the international laws of war during a war, whatever its origin, has never so far been seriously disputed by any state. Any doubts that arose were cleared up in a way which allowed of no misunderstandings. I draw attention to Resolution Number 3 of the League of Nations Assembly of 4 October 1921 and to the report of the Committee of Eleven of the League of Nations for the adaptation of the Covenant to the Pact of Paris.[34]

The aggressor state has the same rights and duties in a war as the attacked nation, that is, those laid down by the traditional international laws of war. The French chief prosecutor appears to wish to deviate from this line, although he does not seem disposed to draw the full conclusions. However, I do not see any tendency to deviate from the present path even in the most recent practice of states.

With regard to the second point:

Attempts have been made to deny the obligation to remain neutral and, in fact, finally to establish for the states not involved the right of non neutrality and even the right to wage war against the aggressor. Some statesmen and scholars have devoted themselves just as passionately to undermining, and even to outlawing, the right to neutrality as other statesmen and scholars have spoken in favor of its undiminished continuance.[35] The clearer it became that the whole system of collective security failed to function in those particular cases which were of decisive importance, namely, where steps would have had to be taken against a great power, the more the idea of neutrality asserted itself with fresh vigor. The complete discredit attaching to the League of Nations and the system of the Kellogg-Briand Pact since the Abyssinian conflict put classical international law back into its old position. In 1935 Switzerland declared her unrestricted neutrality;[36] Belgium, Denmark, Finland, Luxembourg, Norway, Holland, and Sweden followed with their declaration at Copenhagen on 24 July 1938.[37] The failure of the League of Nations was the reason quite openly given.

With reference to the third point:

The idea underlying the policy of nonrecognition is that the states not involved in a conflict should conduct themselves as members of the community of states, that is, they should protect the constitution of the community of states by refusing to recognize the fruits of victory, should the victor have been the aggressor. The situation he has created by force should not even seem to become a legal situation. He will thus be deprived of what he has gained, and one of the main inducements to wage war will thereby be eliminated. Such a policy of nonrecognition is undoubtedly not enough to guarantee by itself a system of collective security, but it is an indispensable part of such an order. There can be no dispute about this. The Brazilian representative, Senhor Braga, gained merit by proposing, at the second League Assembly in 1921, that such a policy be followed by the members of the League of Nations under the name of a “universal legal blockade” (_blocus juridique universel_).[38]

The Finnish representative, M. Procope, interpreted Article 10 of the Covenant in this sense in 1930 before the League Assembly.[39] The notes by the American Secretary of State, Stimson, of 7 January 1932 to China and Japan[40] made this idea echo throughout the world. Their contents are commonly referred to as the Stimson Doctrine. The League of Nations accepted the Doctrine as a resolution of the Assembly on 11 March 1932.[41] The concept was later the focal point of the Pact of Rio de Janeiro of 10 October 1933 and of the Budapest Articles of 10 September 1934.

The conflict between Italy and Abyssinia in 1935-36 became the great test case,[42] which decided the fate of the system of collective security. The League of Nations declared a member, which was a great power, to be the aggressor and decreed economic sanctions but then shrank from coercive military measures and finally, after Italy’s victory, struggled painfully in debates on procedure, especially at the 18th Assembly of the League, to find an answer to the question as to how the League, without openly betraying its constitution, could cross the attacked member, the minor power of Abyssinia, off the list of existing states and recognize it as part of the Italian Empire. The United States, too, did not enforce the Stimson Doctrine but remained strictly neutral.[43],[44]

It is necessary to realize all this; and also to know that the British Government, on 20 February 1935, politely but firmly refused, through Lord Chancellor Viscount Sankey,[45] to accept the logical explications and paid tribute to the old truth: “It is not logic but history that creates law.”[46] On a later occasion, when Secretary of State Cordell Hull had explained the principle of American policy to all the powers on 16 July 1937,[47] the Portuguese Government issued a warning against “the abstract and generalizing tendency of jurists”; it warned against attempts to “find a single formula” and against not studying historic facts sufficiently.[48]

We therefore come to the conclusion that in the actual relations between states there existed—quite a number of years prior to 1939—no effective general ruling of international law regarding prohibited war. No such general ruling existed so far as the leading statesmen and the peoples were aware.

This is, in fact, the ultimate reason why the system of specific rulings on international law was followed to an ever-increasing extent. Two states would thus conclude treaties, in full knowledge of their particular historical conditions and with a view to guarantee peace between each other.

Now, during the second World War the United States Government decided to help Great Britain. Great Britain was able to acquire destroyers, and it later received the assistance of Lend-Lease. The American public recognized this act of assistance as being essentially no longer neutral; it was regretted by some, welcomed by others, sometimes attacked and sometimes defended. The supporters of the measures before the American public, above all Stimson and Cordell Hull, quite rightly refrained from justifying them as consistent with neutrality. On the contrary, they took their stand on the Pact of Paris as interpreted by the Budapest Articles.[49] As we saw, this would, according to Viscount Sankey’s indisputably correct conception of the sources of international law, have been wrong as far back as 1935.

After the developments which had taken place since Italy’s victory over Abyssinia, such discussions were entirely outside the field of legal realities. Their purpose was to resolve internal dissensions in America and for that very reason could not have been of direct importance for international law. Even had these discussions taken place between states, they could at most have helped to create law. But is it actually necessary to assert or prove that such discussions could not have created, in the midst of the great struggle, a law to attain which so many efforts—efforts which were proved to have been Utopian—were made in vain in peacetime?

In this Court many ways of legal thinking meet—ways which are in part very different. This leads to a number of ineradicable differences of opinion. But no manner of legal thinking anywhere on earth, from the most ancient times to the most recent, could or can make possible arguments which contradict the very nature of law as a social order of human life arising out of history. If several governments accept articles about whose contents they are of different opinions and if these articles then find no real application in the practice of these governments—which is not to be wondered at considering the circumstances under which they arose—and if logicians then interpret these articles, while the practice of governments rejects these interpretations either expressly or tacitly, then one will simply have to resign oneself to this, inasmuch as one proposes to keep to the task of legal appreciation, however much the goal may seem worth striving for, politically or morally.

But let us forget for a moment the bitter realities of those years following upon the Italo-Abyssinian conflict. Let us suppose for a moment that a general and unambiguous pact had existed, accepted and applied by the contracting parties in fundamental and factual agreement. Would the liability of individuals to punishment for the breach of such a treaty be founded in international law?

No—not even the liability of the state to punishment, let alone that of individuals.

The breach of such a treaty would not be any different, under existing international law, from any other violation of international law. The state violating a treaty would be committing an offense against international law, but not a punishable act.[50] Attempts were occasionally made to deduce from words _délit_ (offense), _crime international_ (international crime), and _condamnation de la guerre_ (condemnation of war) the existence of an international criminal law dealing with our case. Such conclusions are based on wrong premises.[51] Every lawyer knows that any unlawful behavior can be called a _délit_ (_delictum_), not only punishable behavior. And the word _crime_ is used even entirely outside the legal sphere. And this is precisely the case here. When in 1927, on Poland’s application, the League of Nations Assembly declared war to be a _crime international_, the Polish representative expressly stated that the declaration was not actually a legal instrument but an act of moral and educational importance.[52] The endeavor to organize a universal world system of collective security on a legal basis failed. But this does not mean that the numerous bilateral treaties whose purpose it is to preclude wars of aggression between the two partners became inapplicable. One will have to examine whether the parties to the treaty may have made the existence or continued existence of a general machinery of collective security the prerequisite for the validity of the treaty.

For unilateral assurances of nonaggression the same holds good as for bilateral treaties.

Many bilateral nonaggression pacts were concluded and several unilateral assurances were given. In some cases a political, in others a legal concept of aggression, or even a number of such legal concepts may determine right and wrong.

The Reich also concluded a series of such pacts. They have been cited by the Prosecution in argument. One must examine whether all these treaties were still in force at the critical moment, and this examination will be left to the individual defendant’s counsel. But if the Reich did attack, in some specific case, in breach of a nonaggression pact which was still valid, it committed an offense in international law and is responsible therefor according to the rules of international law regarding such offenses.

But only the Reich—not the individual, even if he were the head of the State. This is beyond all doubt, according to existing international law. It is unnecessary even to speak about this. For up to the most recent times not even the possibility was mentioned, either in the Manchurian, or in the Italo-Abyssinian, or in the Russo-Finnish conflict, of instituting criminal proceedings against those people who were responsible, on the Japanese, Italian, or Russian side, for planning, preparing, launching, and conducting the war, or who simply participated in these acts in any way. And it was certainly not because matters had, paradoxically enough, not been thought out to the end, that they were not prosecuted. They were not prosecuted because this cannot take place as long as the sovereignty of states is the organizational basic principle of interstate order.

THE PRESIDENT: I think this would be a convenient time to break off.

[_A recess was taken._]

DR. JAHRREISS: One thing or another[53]—should things reach the point where, according to general world law, the men who participated in the planning, preparation, launching, and conduct of a war forbidden by international law could be brought before an international criminal court, the decisions regarding the state’s final problems of existence would be subject to super-state control. One might, of course, still term such states sovereign; but they would no longer be sovereign. In his paper, written late in 1943, which I have already mentioned several times and which was prepared after the Moscow conference of 1 November 1943, Kelsen again and again repeats that in questions of breach of the peace, the liability of individuals to punishment does not exist according to the general international law at present valid and that it cannot exist because of the concept of sovereignty.[54]

For Europeans, at any rate, the state has during the last four centuries, especially following the pronounced advance made by the idea of the national state, achieved the dignity of a super-person.

Of course, acts of state are acts of men. Yet they are in fact acts of state, that is, acts of the state carried out by its organs and not the private acts of Mr. Smith or Mr. Müller.

What the Prosecution is doing when, in the name of the world community as a legal entity, it desires to have individuals legally sentenced for their decisions regarding war and peace, is, when facing the issue from the angle of European history, to look upon the state as one would look upon a private individual; indeed, more than that: What it is doing is destroying the spirit of the state. Such an indictment, the moral justification of which is not my concern—such an indictment is, as we have already shown, incompatible with the very nature of sovereignty and with the feeling of the majority of Europeans. It seems, indeed, as though not only Europeans feel that way. In 1919, in Paris, it was the American delegates at the War Guilt Investigation Committee who opposed most strongly any legal sentence on the Kaiser for the very reason of the incompatibility of such a procedure with the sovereignty of the State.[55] And it is impossible to underline the idea of sovereignty more strongly than Kellogg did 8 years later during the negotiations in connection with the Pact of Paris, when he declared, as I have already said, “Every state is the sole judge of its behavior with regard to questions affecting its very existence.”

There are epochs which idolize the sovereignty of the state; others deprecate it. Certain epochs have done both at the same time—ours does so. Perhaps we are living in a period of transition. Perhaps a transformation of values is taking place. Perhaps world community will become the supreme political value for the peoples in place of their own particular states, which, at any rate, held this position hitherto. Perhaps we shall reach a point where the unleashing of a war deserving moral and also legal condemnation will, for the general legal conscience, constitute high treason against the world community. Perhaps we shall reach a point where it will be permissible, or even compulsory, to betray a government starting such a war to foreign countries without this being termed high treason toward one’s own. At the moment there is in no nation a majority, let alone unanimity, in support of this conclusion.

The punishment of individuals by the legal community of nations for breach of the peace between states can thus be ordered only provided the fundamental principles of international law as at present valid and the scale of values as for centuries they have been firmly rooted in the feeling of the European nations are abandoned—that scale of values according to which the state, one’s own sovereign state, forms the indispensable foundation for free personality.

The Prosecution breaks up in its own mind the German State at a time when it stood upright in its full strength and acted through its organs. It must do so if it desires to prosecute individual persons for a breach of the peace between states. It must turn the defendants into private individuals. Then again the defendants—as it were, on the private level—are strung together into a conspiracy by legal concepts rooted in Anglo-Saxon law and alien to us. They are placed on a pedestal provided by the many millions of members of organizations and groups which are designated as criminal, thereby once more allowing them to appear as an “ultra-individual” value.

Insofar as the Charter supports all this by its regulations, it is laying down fundamentally new law, if—concurring with the British chief prosecutor—one measures against existing international law. That which, originating in Europe, has finally spread to the whole world and is called international law is, in essence, a law of the co-ordination of sovereign states. Measuring the regulations of the Charter against this law, we shall have to say: The regulations of the Charter deny the basis of this law; they anticipate the law of a world state. They are revolutionary. Perhaps, in the hopes and yearnings of the nations, the future is theirs.

A lawyer, and only as such may I speak here, will merely have to establish that they are new—revolutionarily new. The laws regarding war and peace between states provided no room for them and could not do so. Thus they are criminal laws with retroactive force.

Now the French chief prosecutor—if I understand correctly—recognized the sovereignty of states in his profoundly moving speech and quite rightly saw that an unbridgeable gulf exists between the Charter and existing international law where it desires to see individuals punished as criminals for breach of international peace. He therefore transposes the Trial from the plane of international law to that of constitutional law. It might have happened that a German State would have settled accounts after the war with those people who were responsible for launching the war. Since the whole life of the German people is paralyzed today, those foreign powers, who jointly 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 Court in its investigation and verdict.

We can leave the question open as to whether this concept is legally right or not. Even if it is right, our question is not modified thereby. When looking at the problem from this point of view, no differently 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 recast into national law, as we say, but also against that national criminal law which was binding on the defendants at the time of the deed. It is, after all, quite possible for a state, a member of the community of states, to be more cosmopolitan in its criminal law than actual international law. Some rule of the Charter, although new with regard to existing international law, may correspond to an already existing national law, so that it would not constitute criminal law with retroactive force. So how was the breach of peace between states—particularly the breach of nonaggression pacts—treated in that 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 some state those people might be threatened with punishment who prepared or launched or waged a war in opposition to the international obligations of that state.[56] That would, it is true, be completely impractical, for the result of a war determines the internal settlement of accounts. No criminal court will threaten a victorious government, whereas, in case of defeat, the defeat itself provides the measure for such settlement. In any case the regulations of the Charter regarding punishment for breach of the peace between states are novel for the national criminal law to which the defendants were subject at the time of the deed. If one is not prepared to understand the phrase _nulla poena sine lege praevia_ as it is understood on the European continent, that is, as meaning that law in the sense of _lex_ is a rule laid down by the state, a state law, but holds 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, then we still have one question left: As things happened to be, did the defendants—formerly ministers, military leaders, directors of economy, heads of higher authorities—at the time of the deed feel, or could they even have felt that a behavior which is now made punishable by a retroactive law was originally in violation of their duty? The answer to this question cannot be given without 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 the form and with the 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 such a constitution as they happen to have at the time.

The Prosecution, with full justification, has tried to convey a picture of this concrete legal structure of the Reich. Without trying to obtain such a picture, 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 endeavor to be made. However, I am afraid that with the picture presented by the Prosecution one will not come as close to the truth as is possible, notwithstanding the complex nature of the subject.

The Prosecution is based upon 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. A number of facts in its history, domestic and especially foreign, accounted for Hitler’s rise to power or facilitated it for him, while there were other things in this history that guided, urged, limited, or restrained 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 Führer Principle. This Führer Principle has, in fact, for the eyes and even more for the ears of the German people and of the world in general, been the organizational guiding principle in the development of the Reich constitution after 1933.

It has never been unambiguous, and it considerably changed in character during the course of the years. In human life leading and dominating present inherent contradictions. There exists one, as it were, soulless, mechanical way of directing mankind, which is to dominate, to rule by issuing commands; and there is another one, which is to precede by setting an example and being followed voluntarily, which is to lead or whatever one wishes to call it. This differentiation between two fundamentally different methods of directing men is often already complicated by the words used; in the German language, for instance this is so because “leading” is sometimes substituted for unconscious domination, while domination is occasionally called leading. The differentiation is rendered even more difficult by the fact that leading may alternate with domination in relations between the same persons or by the fact that methods which are actually applicable to leading are used in dominating 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 may complement, promote, and keep a check on each other. Both methods appear continually and everywhere. There has never yet been a truly dominating ruler who was not also a leader, although minor rulers are also subject to this law. And the Hitler regime did bring 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 registered 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 remarkable synthesis of leading and dominating found its maximum expression in the person of Hitler himself, in his acts of leadership, for instance, in his speeches, and in his commands. Hitler’s acts of leadership and commanding became the motive power of the German political life of that time. Above all, this phenomenon must be taken into correct account. It is of absolutely decisive importance in judging the enormous mass of facts which has been produced here. With all due caution, which is natural to men accustomed to think along scientific lines and imbues them with an almost unconquerable mistrust of any attempt to comprehend and evaluate events which have happened so recently, one is perhaps entitled to vouchsafe this assertion: In the course of the years Hitler accorded the act of command an increasingly favored place to the detriment of acts of leadership and finally brought it so much to the fore that commands, not the act of leadership, 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 shrieked out, to the irritation even of the most faithful disciples, became rarer, while the legislative machine worked faster and faster. A later age will perhaps realize to what extent the great change in the attitude of the German people toward Hitler, which was beginning to show even before the war, was the cause or effect of this modification.

Whereas on a superficial question, that is, the question as to how he wished to be designated, Hitler urged not to be called “Führer and Reich Chancellor” any longer, but only “Führer,” the way in which the State was being governed was taking the exactly opposite path; leadership disappeared more and more, and there remained naked domination. The Führer’s orders became the central element of the German state edifice.

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

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

Here we have the fundamental question in this Trial: What position did Hitler’s orders occupy in the general order of Germany? Did they belong to the type of orders which were disallowed by the Charter of this Court as grounds for the exclusion of punishment?

It was perhaps harder for a lawyer who grew up in the habits of the state founded on law than for other people to witness the slow and then ever more rapid disintegration of that foundation of law supporting the state; he never came to feel at home in the new order and always remained half outside. Yet for that very reason he probably knows better than anyone else the peculiarities of this new order, and he may attempt to make them comprehensible.

State orders, whether they lay down law or decide individual cases, can always be measured not only against the existing written and unwritten law of the state concerned but also against the rules of international law, morality, and religion. Someone, even if only the conscience of the person giving the orders, will always ask whether the person giving the order did not perhaps order something which he had no right to order or whether he may not have formed and published his order by an inadmissible procedure. Now an unavoidable problem for all domination lies in this: Should or can it grant the members of its hierarchy, its civil servants 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 form of rule which has appeared in history so far 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. Such was the case, for instance, under the extremely democratic constitution of the German Reich during the Weimar Republic, and it is again the case today under the occupation rule of the four great powers over Germany.

Insofar as no such right of examination is granted to members of the hierarchy, orders are binding upon them. All constitutional law, including that of modern states, provides for acts of state which must be respected by the authorities, even when defective. Certain acts constituting rules, certain decisions on individual cases which have acquired legal force, are held to be valid even when the person giving the order has exceeded his competency or made a mistake in form.

If only because the process of referring to a still superior order finally comes to an end, there must under every government exist orders that are binding on the members of the hierarchy under all circumstances, and therefore represent law to the officials concerned, even though outsiders may find that they are defective as regards content or form when measured against the previous laws of the state concerned or against rules applying 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 _volonté de tous_ can be in contradiction to what is right, but he did not fail to appreciate that orders by _volonté de tous_ are binding.

In indirect democracies the resolutions of a congress, a national assembly, or 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 modify the constitution and duly promulgated under all circumstances were binding upon all functionaries, including the independent courts of law, even though the legislator—willingly or unwillingly—might have violated rules not imposed by the state but by the Church or by the community of states. In the latter case the Reich would have been guilty of an international offense, since it would have failed to see to it that its legislation was in accordance with international law. It would, therefore, have been responsible under the international regulations regarding reparation for international offenses. 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 legally binding nature with the aim of obeying or refusing to obey it, depending on the result of this examination.

Things are no different in any other state in the world. It never has been and never can be different. Every state has had the experience of seeing its ultimate orders, its supreme orders, which must be binding on the hierarchy if the authority of the state is to subsist at all, on occasion coming into conflict with rules not imposed by the state—to divine law, to natural law, and to the laws of reason. Good governments take pains to avoid such conflicts. To the great sorrow—indeed, to the despair—of many Germans, Hitler frequently brought about such conflicts. If only for this reason, his way of governing was not a good one, even though it was for several years successful in some spheres.

One thing however must be said 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. It was only some of the people concerned who were fundamentally affected, the bulk being only superficially involved—not to mention those conflicts that remained unknown to the overwhelming majority of the people and of the hierarchy, those orders, therefore, by which Hitler not only showed himself to be inhuman in individual instances but simply put himself outside the pale of what is human. Here is a purely academic question: Would Hitler’s power have taken such deep root, would it have maintained itself, if these inhumanities had become known to wider sections of the people and of the hierarchy? There can be no answer: they 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 appeared 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 proper in principle. And though this may not yet be the case today, one day the world will know that the vast majority of intelligent Germans did not think any differently on this matter from the majority of intelligent people of other nations in and outside Europe.

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

This is what happened in Germany from the beginning of 1933 onward. 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 24 March 1933, by which the institution of Reich Government Laws was created, whereby the separation of powers in the sense in which it had been customary was, in practice, eliminated, was, according to the transcript of the Reichstag session, passed 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 deputies elected had been prevented from attending the session by the police, while 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, since no constitution could legalize its 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 entirely cut off from the realities of life could have attempted 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 faulty if one chooses to ignore how the institution of government laws, that is, cabinet law, was later changed by custom into one of several forms in which the Führer 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 resulted in Hitler heading both the hierarchy and the whole people as the undisputed and indisputable possessor of all competency. The result of the development was, at any rate, that Hitler became the supreme legislator as well as the supreme author of individual orders.

He gained this position to some extent under the impression of the surprising successes—or what were considered successes—in Germany and abroad, especially during the course of the past war. Perhaps the German people, although with great differences between North and South, West and East, particularly easily falls a prey to actual power, particularly easily obeys by orders, particularly well conforms to the idea of a superior. Thus the whole process may have been rendered 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 exterminate the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the bulk of the people in their everyday life. Up to the top group of Party officials—this was shown by some of the speeches by the Reich Leader of jurists, the Defendant Dr. Frank, as quoted here—there showed resistance, which, it is true, was not very effective, when justice in civil and ordinary criminal cases was equally to be subjected to the _sic volo sic jubeo_ of one man. But apart from the judiciary, which in the end also was beginning to succumb, absolute monocracy was complete. The Reichstag’s pompous declaration about Hitler’s legal position, dated 26 April 1942,[56a] was actually only the statement of what had become a fact long before. The Führer’s orders constituted law already a considerable time before this second World War.

In this state order the German Reich was treated as a partner by the other states, throughout the whole field of politics. In this connection I do not wish to stress the form—so impressive to the German people and so fatal to all opposition—which this treatment took 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 with its state displays. Rather would I wish to point out that the governments of the greatest nations in the world considered the word of this “all-powerful” man to be the final decision, incontestably valid for every German, and based their decisions on major questions on the very fact that Hitler’s order was incontestable. To mention only the most striking cases, this fact was relied upon when the British Prime Minister, Mr. Neville Chamberlain, after the Munich Conference, displayed the famous peace paper when he landed at Croydon. This fact was pointed to when people went to war against the Reich as the barbaric 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. Its existence was in part due to the recognition from abroad and to 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 totalitarian governments to attain a certain goal. Only one who has lived in the outer cold and as though outcast among his own people amidst blindly believing masses, who idolized this man as infallible, can tell how firmly Hitler’s power was anchored in the nameless and numberless following who held him capable of doing only what was good and right. They did not know him personally; he was for them what propaganda made of him, and this he was so uncompromisingly that everybody who saw him from close range and summed him up differently clearly realized that opposition was utterly pointless and, in the eyes of other people, did not even represent martyrdom.

Would it therefore not be a self-contradictory process if both the following assertions were to be applied at the same time in the rules governing this Trial? First, the Reich was the expression of the despotism of this one man and for that very reason a danger to the world. Secondly, 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 never be illegal at all, with a single exception which will be discussed later—an exception which, when carefully examined, will be seen to be only an apparent one—namely, with the exception of those cases in which the monocrat placed himself, according to the indisputable axioms of our times, outside every human order and in which a genuine question of right or wrong did not arise, so that no genuine examination was called for, either.

Hitler’s will was the final authority for their considerations on what to do and what not to do. The Führer’s order cut off every discussion. Thus a person who as a functionary of the hierarchy invokes an order by the Führer is not trying to claim exemption from punishment for an illegal action but opposes the assertion that his conduct was illegal; for it is his contention that the order with which he complied was legally unassailable.

Only a person with full comprehension of this can have a conception of the hard inner struggles which so many German officials had to fight out in these years in the face of many a decree or resolution of Hitler’s. For them such cases were not a question or 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 frequently.