Chapter XXIII: Book 1: , Mr. President (11)

Whatever the Charter means by the orders which it rejects as grounds for exemption from punishment, can this be meant to apply to the Führer’s orders? Can they 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 grown, a constitution explicitly or implicitly recognized by the community of states? Many Germans disapproved of 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 repugnant. But that in no way affects the following: Must not those people who did their duty in the hierarchy, willingly or unwillingly, in accordance with the constitution, feel that an injustice is being done to them if they were sentenced because of a deed or an omission which was ordered by the Führer?

A community of states might refuse to accept or tolerate as members such states as have a despotic constitution. Yet up to now this has never been the case. If it is to be different in the future, the nondespotic 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 from entering the family circle from outside. Today people are realizing more and more clearly that this is the crux of our question. The circumstances must be very special ones if a modern people is to let itself be governed despotically, even when as well-disciplined as the German people. But wherever such circumstances do exist, no domestic countermeasures are of avail. In that eventuality only the outside world can help. If, instead, the outside world prefers to recognize this constitution, it is impossible to see where successful domestic resistance can spring from. In pointing to these special circumstances and to the recognition by the outside world, we are drawing attention to facts for the existence of which, to take our case, no German was responsible but which cannot be ignored when the question is asked how all this was possible.

Attention must also be drawn to certain further facts without knowledge of which one cannot fully grasp the fact that Hitler’s absolute monocracy was able to establish such a terribly firm hold. Hitler combined in his person all the powers of issuing legislative and administrative orders of a supreme character, 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. The dividing lines between these spheres, however, were not always sharply drawn. In a modern state, particularly in major states of our technical era, this cannot be avoided. The tendency to exaggerate questions of competency is certainly no less marked in Germany than in any other country. This certainly facilitated the erection of barriers between the departments. Every department was jealously watching to see that no other trespassed into its field. Everywhere it was prepared for tendencies of other departments toward expansion. 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 organizers. Instead of co-operating and going through thick and thin together, they fought one another. Instead of a conspiracy we would seem to have had more of a “dispiracy.” The history of the jealousy and mistrust among the powerful figures under Hitler has still to be written. Now let us remember that in the relations between all departments and within each department, people surrounded themselves with ever-increasing secrecy; between departments and within each 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,” that is, nonprivate life in Germany as under Hitler; and also never before was public life so screened off from the people, particularly from the individual members of the hierarchy themselves, as under Hitler.

The single 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 on the part of other functionaries only needed to refer to an order by the Führer 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 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 again stress the fact that an order by the Führer 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 limit? During the first period, at any rate, that is, 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 among the people saw in their Führer a man close to the people, an unselfish, almost superhumanly intuitive and clear-thinking pilot and believed only the best of him; they had only one worry: Was he also choosing the right men for his assistants, and was he always aware of what they were doing? The tremendous power, the unlimited authority were vested in this Hitler. As in every state, this might include harsh orders. But it was never intended as giving full power to be inhuman. Here lies the boundary line; but this line has at no time and nowhere been quite clearly drawn. Today the German people are utterly torn in their opinions, feelings, and intentions; but they are probably in agreement on one thing, with very few exceptions: As accusers, they would not wish to draw this line with less severity than other people do toward their leaders. Beyond that line, Hitler’s order constituted no legal justification.

It must not be forgotten, however, that this line is not only vague by nature but also follows a different course in peace than in wartime, 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 with any nation in the world.

Hitler himself, at any rate, did not recognize this boundary line of inhumanity, of nonhumanity, as a limit to obedience in his relations with his subordinates; and here again opposition would have been considered a crime worthy of death in the eyes and judgment of this man, invested as he was with limitless power and controlling an irresistible machine. What should a man who received an order exceeding the line have done? What a terrible situation! The reply given in Greek tragedy, the reply by Antigone in such a conflict cannot be imposed. It would show scant knowledge of the world to expect it, let alone demand it, as a mass phenomenon.

Before we come to the specific question of who in the Reich possessed the power of deciding on war and peace, one more 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), such as the decree concerning the institution of the Protectorate of Bohemia and Moravia of 16 March 1939; or “Verordnung” (order), like the order for the execution of the Four Year Plan of 19 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 highest civil or military functionaries as well. But it would be fundamentally wrong to assume that this was a case of countersignature as understood in the modern democratic constitutional law of nations ruled constitutionally or by a parliament—of a countersignature 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, that is, of the principle that every decision must be made by one and only one man even to consider anything else, especially 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 of such countersigning may have been, there was never any doubt that the Führer’s orders represented nothing but his own decision.

Special attention must 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 merely 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 onward, at the latest, the German Reichstag was no longer a parliament but merely an assembly for the acclamation of Hitler’s declarations or decisions. These scenes of legislation appeared to many people at home and abroad to amount almost to 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 counterspeeches.

There exist, 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 Führer has ordered” or “the Führer has decreed.” This is 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 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 High Command of the Armed Forces (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—as it were by implication—dealt with the question as to who was responsible for the ultimate decisions, for this state’s decisions regarding fundamental questions of existence, especially for the decision about war and peace. Kelsen said—in his great treatise of the year 1943,[57] which I have already mentioned above—“probably the Führer alone.” We shall have to 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, that is, 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—so as to give the Reich legislature no option in its decision; a problem which, as far as I know, became a tangible one in the United States with regard to the relationship of the President to Congress and was therefore seriously discussed, while it was never a tangible 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 not have tolerated, any more than 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 saw fit. The military means of power must remain at the disposal of the political leaders of a state. Otherwise they are not means of power at all. That 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 among the nations.

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

The circumstances in a state can be such that the man who is legally the only one competent for the decision on war and peace, may have, 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, then such was the case in Hitler Germany. And if, in any question, Hitler did ever go as far as to accept the advice of a third party, then that was certainly 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.

I conclude: Sentences against individuals for breach of the peace between states would be something completely new under the aspect of law, 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 1 o’clock in dealing with that letter, if you have it now? And possibly Dr. Exner also has his letter.

DR. SAUTER: 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 17 June 1946 I wrote the following letter to the President of the International Military Tribunal, which is signed by defendant’s 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 7 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 Reichsführer 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 recall
that it was he, Funk, to whom Reichsführer 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.

“I put forward 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
cosigning this letter.”

Then there are the two signatures, “Walter Funk” and “Dr. Sauter.” That is the content of the letter, which I sent on 17 June 1946, to the President to correct the testimony of Funk.

THE PRESIDENT: Thank you, Dr. Sauter.

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

PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): Mr. President, I was downstairs in the General Secretary’s office, and I was promised it at 1:30, but I have not yet received it. I am sorry; at the moment I am not in a position to fulfill your request.

THE PRESIDENT: You probably will have it at 2 o’clock.

[_The Tribunal recessed until 1400 hours._]

NOTES

-----

[1] Note of Secretary of State Kellogg to the French Ambassador of 27 February 1928.

[2] Note of the United states Government to the Governments of Great Britain, Germany, Italy, and Japan of 13 April 1928.

[3] “Considérée jadis comme le droit divin et demeurée dans l’éthique internationale comme une prérogative de la souveraineté, une pareille guerre est enfin destituée juridiquement de ce qui constituait son plus grave danger: sa légitimité. Frappée désormais d’illégalité, elle est soumise au régime conventionnel d’une véritable mise hors la loi....” The speech by the French Foreign Minister is reproduced in The Department of State; _Treaty for the Renunciation of War_. United States Government Printing Office; Page 309.

[4] _Commentaire du Pacte de la Société des Nations selon la politique et la jurisprudence des organes de la Société_. Paris 1930. (See especially Page 73 et sequentes) Further in the supplements for 1931-35; 1er Supplément au Commentaire du Pacte (1931) Page 13 et sequentes; 2ème Supplément (1932) Page 17 et sequentes; 3ème Supplément (1933) Pages 18, 39; 4ème Supplément (1935) Pages 19, 99.

[5] Congressional Record, _Proceedings and Debates of the Second Session of the 70th Congress of the U. S._, Volume LXX, Part. 2, Page 1333.

[6] See Baker, Ray Stannard, _Woodrow Wilson and World Settlement_, New York 1922, passim.

[7] See Kuhn, Arthur K., _Observations of Foreign Governments upon Secretary Hull’s Principles of Enduring Peace_ (A. J., Volume 32, 1938, Pages 101—106). Also: Wilson, Woodrow, _War and Peace_. Presidential Messages, Addresses and Public Papers, 1917-24 (edited by Ray Stannard Baker and William E. Dodd), New York 1927.

[8] Commentaire, Page 74.

[9] On the indisputable fact of the collapse, and the guilt of the great powers therein, cf. the bitter statements of Fenwick from the period immediately preceding the second World War. (_International Law and Lawless Nations_; A. J., Volume 33, 1939; Pages 734-745.)

[10] _Neutrality and Unneutrality_ (A. J., Volume 32, 1938, Page 778 et sequentes.)

[11] See also the Memorandum on the Signature by His Majesty’s Government in the United Kingdom of the Optional Clause of the Statute of the Permanent Court of International Justice (Cmd. 3452, Miscellaneous Number 12, 1929).

[12] It is the same train of thought developed by Brierly, _Some Implications of the Pact of Paris_ (Br. YB 1929).

[13] “Tout le mécanisme prévu pour le maintien de la paix s’est dialogue.”

[14] _Parliament Debate_, H. C., Volume 332, Column 226 et sequentes.

[15] _Parliament Debate_, H. C., Volume 353, Number 198, Column 1178 (21 November 1939).

[15a] See Jahrreiss Plea, Annex, Exhibit Numbers 35 and 36.

[16] Resolutions of the Assembly and the Council of 14 December 1939.

[17] _Congressional Record, Proceedings and Debates of the Second Session of the 70th Congress of the U. S._, Volume LXX, Part 2, Pages 1169/99. See also Ellery C. Shotwell, _Responsibility of the United States in Regard to International Cooperation for the Prevention of Aggression_ (A. J., Volume 26, 1932, Page 113).

[18] See also Brierly, J. L., _Some Implications of the Pact of Paris_ (Br. YB 1929). He thinks that a violation of neutrality is impossible. In 1936 the same thought was expressed by the Englishman McNair: _Collective Security_ (Br. YB).

[19] See, for instance, Eagleton, Clyde, _An Attempt to Define Aggression_ (International Conciliation Number 264, 1930). Cuten, A., _La notion de guerre permise_, Paris 1931. Wright, Quincy, _The Concept of Aggression in International Law_ (A. J., Volume 29, 1935, Page 395 et sequentes).

[20] Note of the United States Government to the Governments of Great Britain, Germany, Italy, and Japan of 13 April 1928; draft treaty of the 20 April 1928 drawn up by the French Government; Note of the British Secretary of State for Foreign Affairs of 19 May 1928 to the American Ambassador; Note of 23 June 1928 from the U. S. Government to all nine participants in the negotiations; Note of the British Secretary of State for Foreign Affairs of 18 July 1928; Note of the Soviet Commissar for Foreign Affairs to the French Ambassador of 31 August 1928.

[21] Note of the Soviet Commissar for Foreign Affairs of 31 August 1928.

[22] Note of the Soviet Commissar for Foreign Affairs of 31 August 1928.

[23] See also Kellogg, F., _The War Prevention Policy of the United States_ (A. J., Volume 22, 1928, Page 261 et sequentes).

[24] _Congressional Record, Proceedings and Debates of the Second Session of the 70th Congress of the United States_, Volume LXX, Part 2 (5 January 1929 to 26 January 1929, Page 1169 et sequentes, Washington 1929).

[25] _International Lawlessness_, (A. J., Volume 32, 1938, Page 775).

[26] _Collective Security_ (Br. YB, 1936, Page 150 et sequentes).

[27] _Neutrality and Unneutrality_ (A. J., Volume 32, 1938, Page 778 et sequentes).

[28] _International Law and Lawless Nations_ (A. J., Volume 33, 1939, Pages 743-745).

[29] See also Seelle, George, _Théorie juridique de la révision des traités_. Paris, 1936; further: Kunz, Josef, _The Problem of Revision in International Law_ (“peaceful change”), (A. J., Volume 33, 1939, Pages 33-35).

[30] _International Lawlessness_ (A. J., Volume 32, 1938, Page 775).

[31] Brierly, _Some Implications of the Pact of Paris_ (Br. YB 1929, Page 208 et sequentes).

[32] The well-known “Budapest Articles,” International Law Association: _Briand-Kellogg Pact of Paris_, London 1934, Page 63 et sequentes.

[33] Commentaire, Page 371.

[34] Of 8 March 1930. See also Rutgers in the _Recueil des Cours_ (Académie de Droit International), Volume 38, Page 47 et sequentes. Further: “Budapest Article 7” and Kunz, Josef, “Plus de loi de la guerre?” (_Revue Génerale de Droit International Public_, 1934).—Cohn, _Neo-Neutrality_ (1939).

[35] The Peruvian delegate, Senor Cornejo, in the Committee of the League of Nations Assembly in 1929 said (Assemblée 1929, C III J. O., Page 201): “Neutrality no longer exists!” Stimson, The Pact of Paris, Address 8 August 1932. Hull, Declaration on the Neutrality Law of 17 January 1936. Pact of Rio de Janeiro of 10 October 1933. Speech by the Swedish Foreign Minister Sandler of 6 December 1937 (see Jahrreiss Plea, Annex Exhibit Number 27). 3 October 1939: Declaration of Panama; the exchange of notes by the 21 American Republics with Great Britain, France, and Germany (23 December 1939, 14 January, 23 January, 14 February 1940) is based completely on the classic Neutrality Law. The “Budapest Articles.”—_Literature_: D’Astroy, B. (1938); Baty, Th. (1939); Bonn, M. J. (1936/37); Borchard, E. M. (1936, 1937, 1938, 1941); Brierly, J. L. (1929, 1932); Brown, Ph. M. (1936, 1939); Buell (1936); Cohn (1939); Descamps, de (1930); Eagleton, Clyde (1937); Fenwick, Charles G. (1934, 1935, 1939); Fischer Williams, Sir John (1935, 1936); Garner, James Wilford (1936, 1938); Hambro, Edvard (1938); Hyde, C. C. (1937, 1941); Jessup, P. C. (1932, 1935, 1936); Lauterpacht (1935, 1940); Mandelstam (1934); Miller, David Hunter (1928); McNair (1936); Politis, N. (1929, 1935); Rappard, W. E. (1935-1937); Schindler, D. (1938); Stimson, H. (1932); Stowell, Ellery C. (1932); Tenekides, C. C. (1939); Whitton, J. B. (1927, 1932); Wright, Quincy (1940).

[36] Réserves de la Délégation Suisse (M. Motta) of 10 October 1935.

[37] Udenrigspolitiske Meddelelser 4. Aergang, Numbers 4-5, Page 122 et sequentes (see Jahrreiss Plea, Annex Exhibit Number 30).

[38] Actes de la IIe Assemblée, séance des commissions, I, Page 396 et sequentes.

[39] Actes de la IXe Assemblée, Page 75.

[40] Department of State, Press Releases, 9 January 1932, Page 41.

[41] Actes de l’Assemblée extraordinaire (J. O., Supplément special, Number 101, Page 87).

[42] Jean Ray, 4e Supplément du Commentaire, 1935, Page 10: “Un homme d’État a dit un jour en parlant de l’article 16 que, s’il s’appliquait, il ne s’appliquerait sans doute, qu’une fois. On peut dire la même chose de tout le mécanisme qui doit faire obstacle à la guerre.”—See also Fischer Williams, Sir John, _Sanctions under the Covenant_ (Br. YB 1936) and McNair, Arnold D., _Collective Security_.

[43] With reference to the Stimson Doctrine and the case of Abyssinia see also the works and papers of Borchard (1933), Fischer Williams (1936), McNair (1933), Sharp (1934), Stimson (1932), Wild (1932), Wright (1932, 1933).

[44] With reference to the system of collective security see from the literature concerning the whole position in international law: Brierly (1932); Bourquin (1934); Brouckere (1934); Cuten (1931); Descamps (1930); Eagleton (1930, 1937, 1938); Elbe (1939); Fenwick (1932, 1934, 1935, 1939); Fischer Williams (1932, 1933, 1935, 1936); Giraud (1934); Garner (1936); Graham (1929, 1934); Hill (1932); Hyde (1941); Jessup (1935); Mandelstam (1934); Politis (1929); Ritgers (1931); Shotwell (1928); Wickersham (1928/29); Whitton (1932); Wright (1942).

[45] Parliament Debates H.L. 5th series, Volume 95, Cols. 1007, 1043.

[46] Lauterpacht, _The Pact of Paris and the Budapest Articles of Interpretation_ (Transactions of the Grotius Society, XX, 1935, Page 178), draws his conclusions from the fact that the states can accept or refuse, as logically established as law in Budapest. Jessup (_Neutrality, Its History, Economics, and Law_, Volume IV, _Today and Tomorrow_, 1936) finds that the states failed to accept the Budapest Articles.

[47] See A. J., Volume 31, 1937, Pages 680-693.

[48] See the concurring statements by Kuhn, Arthur K., _Observations of Foreign Governments upon Secretary Hull’s Principles of Enduring Peace_ (A. J., Volume 32, 1938, Pages 101, 106).

[49] See Wright in A. J., Volume 34, 1940, Page 680 et sequentes; particularly Stimson’s speech of 6 January 1941 should be mentioned here.

[50] Fischer Williams also stresses this, (_Sanctions under the Covenant_, Br. YB, 1936, Page 130 et sequentes). Also Kelsen, _Collective and Individual Responsibility_... 1943, Page 531.

[51] An all too appropriate warning against mistaken conceptions in connection with the term “crime international” is given by Fischer Williams; _Sanctions under the Covenant_, (Br. YB, 1936, Page 130 et sequentes).

[52] _Actes de l’Assemblée_ 1927, P., Page 153. Also Jean Ray, Commentaire, Pages 74/75.

[53] Correctly Fischer Williams, _Sanctions under the Covenant_ (Br. YB, 1936).

[54] _Collective and Individual Responsibility_..., Pages 534, 530, 539, 540, 542.

[55] Scott, James Brown, stresses the great merit gained by the American delegates at that time in the interests of law and justice (see House-Seymour, _What Really Happened at Paris_; New York 1921).—Williams, E.T., _The Conflict between Autocracy and Democracy_ (A. J., Volume 32, 1938, Page 663 et sequentes).—Kelsen, _Collective and Individual Responsibility_..., Page 541.—Also Borchard, Edwin, _Neutrality and Unneutrality_ (A. J., Volume 32, 1938, Page 778 et sequentes).

[56] Kelsen seems to think that no such state exists. (_Collective and Individual Responsibility_..., Page 543).

[56a] Compare Jahrreiss Plea. Annex Exhibit Number 42.

[57] Kelsen, _Collective and Individual Responsibility_, Page 546.

Editor’s Note: _In respect to the presentation of the final
pleas by Counsel for the Defense, the Tribunal in several
instances directed that written speeches of excessive length be
shortened for oral presentation in Court and that notice would
be taken by the Tribunal of the paragraphs omitted. In the
sessions to follow such passages have been reproduced in small
type._

_Afternoon Session_

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

“Mr. President:

“During the cross-examination on 6 June 1946, the British
Prosecution presented Document C-139 to the Defendant Jodl,
obviously thinking that the document showed evidence of
preparatory measures for occupying the Rhineland as early as 2
May 1935 ...”

[_The proceedings were interrupted by technical difficulties in the interpreting system._]

THE PRESIDENT: Go on, Dr. Exner.

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 considered. He did not
discover where the ‘Operation Training’ 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 the North 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
“Dr. Exner,” and “Jodl.”

THE PRESIDENT: Very well.

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 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 proceedings were interrupted by technical difficulties in the interpreting system._]

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

DR. STAHMER: When I mentioned the time I should 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, of truly historical and political importance, and of great significance in shaping new laws, 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 the Court, but which are of the greatest importance to the entire German people, are now entering upon a new phase.

The Defense takes the floor.

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

Months before the start of the Trial the Prosecution was in a position to search all offices and archives in Germany and abroad with a large staff of experienced collaborators, as well as to examine witnesses in all countries. Thus they were able to submit to the Tribunal an immense amount of evidence.

The difficult position of the Defense 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 Defense any document and any witness who assists the Defense and therefore your statement is entirely false—and I believe that same practice obtains in the United States.

And as for what you say here about the Defense 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 Defense any document or any witness over whom they had control who would assist the Defense, and there have been various occasions on which the Prosecution have disclosed in this case to the Defense documents which have been supplied to them, which appeared to them to help the Defense.

Every document which has been put in by the Defense 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 Defense in this case.

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

After the reading of the Indictment, Reich Marshal Göring, 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 during his personal examination dealt with many questions which are of considerable importance for his defense. He expressed his opinion in detail with regard to political and military developments 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 only such direct personal portrayal can afford good insight into the attitude of the accused, thus making it possible to obtain 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 was 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 defense 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 known less 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 understand properly the grave crimes and aberrations 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, insofar 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 can be taken to 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.

A Swiss assertion, which also perceives in Fichte the cause of Germany’s going astray, seems to me to be clarifying in this respect. It does not, however, accuse him of Pan-Germanism, that is, of the will to subjugate foreign peoples, but rather reproaches him for having attempted at all to unite the Germans into one nation. It contends that this was an inadmissible attempt to imitate the French and British, whereas it would have been more suited to the German character to remain a nation made up of different peoples. For only as such could it have continued its historical mission of remaining the nucleus of a European federation. Judging by Fichte alone the development is therefore not so easily interpreted.

If one wishes to think historically, one cannot simply fall back on Fichte. For his _Reden an die deutsche Nation_ was only an answer to the “Call to Everyone” which the French Revolution had sent out into the world, and they were directly provoked by the appearance of Napoleon I. 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 characterized the whole of modern times, we find in the Middle Ages.

The colorful play of national and imperial tendencies and struggles which had been the hallmark of ancient times was overcome by the conception of one eternal and omnipotent Christian Church. With this a static 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.” It strove to embrace all humans, and to lead them to peace and rest. 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 judgment 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 fulfillment of a moral world order to bind one and all; an order which would provide the answer to the question of the righteousness or unrighteousness of a war.

When by the advent of the Renaissance and the Reformation the spiritual basis of the medieval order was shaken, this development into a universal world peace was reversed. Life, formerly tending toward stagnation and tranquility, now turned into a torrent which, as it swept ever faster through the centuries, gradually swelled to the present catastrophe. The individual, thirsting for freedom, cast off the shackles of Church and class distinction. The State, declaring itself sovereign, violated the universal order of God as represented by the Church. Not recognizing any superior power, it began to conquer as much living space as it could on this earth, unless the stronger will of another nation did not impose any natural barriers. Peace hence existed only in the naturally rather unstable equilibrium of powers obeying only their own laws.

Thus there came into existence world empires such as the British Empire, Russia, the United States, and the enormous French colonial empire, which as living space today comprise more than one half of the surface of the entire world.

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 represents, as we know, only an attempt to keep alive through secular arguments the afore-mentioned Christian concept of warfare. One cannot, however, derive justice from simple nature, for it knows no other measure than brute force, and always decides in favor of the stronger. Only metaphysically can justice 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.

This development from the old order to new liberty, in other words, the fight of all against all, found its climax and culminating point in the great French Revolution. By attempting to set human intellect upon the throne of God, they reached the apex of secularization. Human intellect, however, proved unable to balance the conflicting ideals of liberty, equality, and brotherliness, that is, to practice true justice.

From that time on the search for true justice stirs the world. All socialist theories are merely attempts at solving this problem. After having been disappointed by the disadvantages of too much liberty, mankind once again seeks security and order. Some wish to return to the Christian truth of God, while others want to proceed in order yet to solve the problem through human intellect.

The National Socialists, whose most revolutionary leaders wanted to go further backward, and at the same time forward to deification of life itself in a biological-political sense, have been conquered and eliminated. Yet no solution of the problems of world order has hitherto been found. The victorious powers hope to arrive at it, however, in drawing a line between themselves and the vanquished by jointly indicting and punishing them as criminals.

From whence, however, will they take the standard by which to define justice and injustice in a legal sense? Insofar as such standards exist by international law as applied up to now, no further statements are required. That a special Court for the Trial was created by the Charter of this Tribunal I will not object to. I must, however, protest against its use, insofar as it is meant to create new material law by threatening punishment for crimes which, at the time of their perpetration, at least as far as individuals are concerned, did not carry any punishment.

One cannot, by an arbitrary act, suddenly create new law when, after centuries of revolutionary development, the old universal principles of medieval law have been gradually abolished and the autonomous thinking of the individual in the moral field has opened gate and door to anarchy. As we know, the very cause of the general state of anarchy in the sphere of justice, from which originated the crimes that are the subject of the accusation here, was the fact that people had forgotten to differentiate between might and justice. The success of so many revolutions over once legitimate rulers “by the grace of God” has shown that might apparently goes before right and that the latter can be changed at will. By what would it then be possible to tell what is right except through the force with which it is able to assert itself and hold its own? This relativity of law which had come about, this positivism of law, no longer concerned itself with a moral justification of law.

Can one expect that punishment will be recognized as just, if the culprit was unable to foresee any punishment because at the time he was not threatened thereby, and therefore believed himself able to derive the authorization for his way of acting solely from the political aims pursued? Of what help is reference to the ethical laws, if such must first be found again? According to Justice Jackson’s opinion, however, the Nazi Government from the start was never the representative of a legitimate state which had pursued the legitimate aims of a member of the international community. Only from such an attitude can the Indictment for conspiracy be understood, which will be discussed later. In fact this Indictment, as the entire argumentation of Justice Jackson, is far ahead of its time. For there were no internationally recognized standards according to which—outside of positive international law—the legitimacy of states and their aims could have been judged, nor was there an international community as such. Slogans about the legitimacy of one’s own and of the illegitimacy of foreign aspirations served only the formation of political fronts, just as did the efforts to brand political adversaries as disturbers of the peace. Whatever they did, they certainly did not create law.

Justice Jackson correctly declared that it would have been possible for the conquerors to deal with the conquered as they saw fit. But, said he, nondiscriminatory punishments without a final and fair establishment of guilt would be a breach of promises repeatedly given and would be a heavy burden on America’s conscience. For that reason he himself proposed judicial proceedings which were to differ from ordinary criminal proceedings by not admitting the usual tactics of obstruction and delay by the defendants. However, an establishment of guilt was to be arrived at on the basis of a just and fair trial. If the defendants were the first leaders of a conquered nation which had to answer before the law, they were also the first ones to whom the opportunity was to be given to defend their lives “in the name of justice.”

If this phrase is to have a meaning, then it must also be of significance for the interpretation of the Charter, because it would not be reasonable if the Court were obliged to rest exclusively upon the Charter without taking into consideration the convictions of others with regard to law. In that case the judgment would represent a mere dictate of force, against which there would be no defense “in the name of justice.”

The Charter may therefore be applied by the Court only insofar as its decrees are justifiable in all conscience, not only formally but also materially. The Charter itself says that nobody shall be excused for a violation of its decrees on the grounds of orders from his government or from a superior. In that case it must apply this, its own logic, also to itself, by allowing the judge to examine the congruence of its prescripts with the general principles of legal concept. For a judge, after all, is far more free and independent of the legislator than a subordinate of his superior, or a subject of his dictator.

Then there is another question, namely, whether the decrees of the Charter are really so much in opposition to the previous and ordinary state of law, especially as to the fundamental ideas of all rules of law, that the Court cannot acknowledge them as right or apply them. In practice, the most serious problem consists in deciding which should have precedence in the case of conflict—the Charter or the legal maxim _nulla poena sine lege_.

An attempt has been made to justify disregard of this rule in this specific instance with the highly political character of the Trial. Such a justification, however, cannot possibly be accepted. The political significance of a trial is usually apparent from its consequences rather than during the course of the procedure and through the influence exercised upon the legal norms to be applied. A judge should administer law, and not deal in politics. Still less is he called upon to rectify mistakes made by the politicians. Punishment, the establishment of which in due time was neglected, may only be meted out by him on the strength of a subsequent law if he would have done so in any case.

Basically, the principle of the division of power is presumably to be maintained. By this principle Montesquieu divided the originally united power of the absolute king into legislative, administrative, and judiciary. The three different forms of expression of state domination were to have equal importance, counterbalance each other, and so aid in controlling one another. This system of the division of power characterizes the modern constitutional state. Straining the point somewhat, one might define the field of activities and competency of the three different forms of expression of sovereign authority by stating that the legislature has to deal with the future, the administration with the present, and the judiciary with the past. The legislature sets the standards to which life is to conform. From time to time these must be changed in accordance with the changed way of living. But until then they must remain valid.

Insofar as a mere establishment of norms of life is not sufficient it will be shaped, as the case arises, by the administration. Administration itself is bound by certain norms, but on principle is free to move within the lawful bounds of its good judgment, so as to be able to respond to the daily changing needs. Just as for the law-making politician, the idea of serving a purpose is its main consideration.

The judge, on the other hand, may not decide according to the usefulness, but should decide according to the law. In general, it is not his task to shape, but to judge. He has to pass judgment on actions after they have been committed, and examine conditions after they have arisen in the light of whether and to what extent they corresponded to the standards, or what juridical consequences they have brought about. Therefore, as a matter of principle, his view is directed toward the past. In the life of the state, which is continuously inspired by politicians looking to the future, he is the restraining counterpole.

Although bound by the laws decreed by the politician, he is not merely an executive organ. On the contrary, he should control the legislator by re-examining the laws with regard to their conformity to the constitution. This, logically, ought to include the examination of whether the principle of the division of power was maintained, because just as the judge may judge only _de lege lata_ and must leave the decisions _de lege ferenda_ to the legislator, the latter in turn is obliged to refrain from interfering with the former’s competency by making laws with retroactive power.

The criticism of the administration of justice by the National Socialist State is mainly based on its having abandoned the division of power. By putting at the top the political Leadership Principle, the Führerprinzip, it interfered dictatorially with the competency of the judges. By means of the Police, that is, the administration, it arrested and imprisoned people without judicial warrant of arrest, simply for reasons of political prevention, and even rearrested those who had been acquitted by the judge and set free. On the other hand, for political reasons convicted criminals were withdrawn from the hands of justice. Thereby, quite naturally, the sureness and clarity of the law were seriously endangered.

But not even this National Socialist State dared renounce outright the principle _nulla poena sine lege praevia_. In its police measures it dispensed with their justification by the judge exactly as today the execution of denazification sentences was justly not placed under the jurisdiction of the Ministry of Justice by the Regional Council of the American Zone, on the grounds of being “alien to justice.” By three laws, however, the National Socialist State decreed an increase in the scope of punishment previously in force with retroactive validity, but they did not provide penalties for acts hitherto unpunishable. More particularly, this was not brought about by the fact that by Article 2a of the Criminal Code the possibility of criminal analogy was created, because by this article a threat of punishment only was created, although not retroactively; and everybody was enabled to conform.

A certain degree of protection against arbitrary judgments and the splitting-up of law lay in the fact that the National Socialist State was based on a specific ideology by which the judge was bound. Concerning the close connection between finding of justice and ideology the Swiss professor of law, Hans Fehr, of Berne, already in 1927 wrote in his book, _Recht und Wirklichkeit; Einblick in Werden und Vergehen der Rechtsformen_: “Without ideology law floats in a vacuum.... Whoever has no ideology can have no sense of right and wrong...”