dtufail/nuremberg-trials-corpus huggingface dataset:
DR. JAHRREISS: 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 (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, W h a t 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).-Nelsen, Collective and Individual Responsibility..., Page 541.-Also Borchard, Edwin, Neutrality and Unneutrality (A. J., Volume 32, 1938, Page 778 et sequentes). its organs. It must do so if it desires to prosecute individual person 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 o 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 i 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 ant 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 then and could not do so. Thus they are criminal laws with retroactive force.
DR. JAHRREISS: 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 lay, 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 fat 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 intc 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?
DR. JAHRREISS: 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 nulls poena sine lege previa 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 auto 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.
DR. JAHRREISS: The Prosecution, with full justification, has tried to convey a picture of this concrete legal structure of the Reich. Without trying (56) Kelsen seems to think that no such state exists. (Collective and Individual Responsibility..., Page 643). 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 Fuehrer Principle. This Fuehrer 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.
DR. JAHRREISS: 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.
DR. JAHRREISS: 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 nauseas, 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 "Fuehrer and Reich Chancellor" any longer, but only "Fuehrer," 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 Fuehrer'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.
DR. JAHRREISS: Nevertheless, this development had given the Fuehrer's orders a special aura of sanctity for them too; there was no contradicting the Fuehrer's orders. One could perhaps raise objections; but if the Fuehrer 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.
DR. JAHRREISS: 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 of finials 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 volonte de tons can be in contradiction to what is right, but he did not fail to appreciate that orders by volonte de tons are binding. In indirect democracies the resolutions of a congress, a national assembly, or a parliament may have the same force.
DR. JAHRREISS: 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 of finials 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 din Brent. 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.
DR. JAHRREISS: It was only some of the people concerned t 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 care 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.
DR. JAHRREISS: 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 Fuehrer legislated. At the base of every state order, as of any order whatsoever, there lie habit and custom.
DR. JAHRREISS: 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 vola 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) (56a) Compare Jahrreiss Plea. Annex Exhibit Number 42. was actually only the statement of what had become a fact long before. The Fuehrer'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.