dtufail/nuremberg-trials-corpus huggingface dataset:
DR. JAHRREISS: 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.
DR. JAHRREISS: 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 Fuehrer's order cut off every discussion. Thus a person who as a functionary of the hierarchy invokes an order by the Fuehrer 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.
DR. JAHRREISS: 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. Whatever the Charter means by the orders which it rejects as grounds for exemption from punishment, can this be meant to apply to the Fuehrer'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 Fuehrer? 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, ever. 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.
DR. JAHRREISS: 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.
DR. JAHRREISS: 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 Fuehrer to get his way. For this reason many, very many, among those Germans who felt Hitler's regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety 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 Fuehrer was binding- and indeed legally binding-on the person to whom it was given, even if the directive was contrary to international law or to other traditional values. But was there really no 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 Fuehrer 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.
DR. JAHRREISS: 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 shout 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.
DR. JAHRREISS: 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 Fuehrer'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.
DR. JAHRREISS: 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 art 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 Fuehrer has ordered" or "the Fuehrer 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 Fuehrer 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.
DR. JAHRREISS: 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 (57) Kelsen, Collective and Individual Responsibility, Page 546. 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.
DR. JAHRREISS: 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 Reichsfuehrer SS Himmler and he"-that is, Puhl-"was then informed by Funk about the deposit to be set up. From the statements of the witness Emil Puhl the Defendant Funk reached the conclusion that, in fact, on this point, the statement of the witness Emil Puhl is correct; and after some consideration, the Defendant Funk believed that he could recall that it was he, Funk, to whom Reichsfuehrer SS Himmler first applied concerning the establishment of a deposit for the SS and that he then informed Vice President Puhl about this matter. "The statement by the Defendant Funk under cross-examination was due to faulty recollection, because of the fact that these cross-examination questions of the Prosecution had completely surprised and greatly disturbed Funk. Immediately after the examination of the witness Puhl, Funk informed me of his mistake and asked me to correct his factually incorrect statement on this point, since he himself would have no opportunity to do so. "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.
DR. SAUTER: 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.] 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 suck 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 van 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.