The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. JAHRREISS, Continued:
                                                   [Page 93]

Now the French Chief Prosecutor - if I understand correctly
- recognized the sovereignty of States in his humanly very
moving speech, and quite rightly saw that an unbridgeable
gulf exists between the Charter and the existing
International Law, when it wants to see individuals punished
as criminals for breach of international peace. He therefore
shifts the trial from the plane of International Law to that
of constitutional law. It might possibly have happened that
a German State power would have settled accounts after the
war with those people who were responsible for launching the
war. As the whole life of the German people is crippled
today, those foreign Powers who, in co-operation with each
other 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
Tribunal in its investigation and verdict.

One can here leave unexamined whether this opinion is
legally right or not. Even if it is right, our question is
not altered thereby. When looking at the problem from this
point of view, no less than from that of International Law,
we must know how far the Charter creates penal law with
retroactive force. But we must now measure the regulations
of the Charter not only against the International Law which
was valid for Germany and was transformed into national law
- as people are wont to say - but also against the national
criminal law which was binding on the defendants at the time
of the deed. It is, after all, possible for a State, a
member of the community of States, to be more cosmopolitan
in its criminal law than the current International Law. The
rule of the Charter which is new with regard to existing
International Law may correspond to an already existing
national law, and then it would not be a criminal law with
retroactive force. So how was the breach of peace between
States -  particularly the breach of non-aggression pacts -
treated in the national criminal law to which the defendants
were subject at the time of the preparation and launching of
the war?

It is possible that, in a State, these people are threatened
with punishment who have prepared, or launched or waged a
war in breach of the international obligations of that
State. That would actually be completely unpractical. For
the result of a war also decides the internal settling of
accounts. No criminal court threatens a victorious
government. But, in case of defeat, the defeat itself gives
the measures of the settlement of account. In any case the
regulations of the Charter regarding punishment for breach
of the peace between States are new for the national
criminal law which the defendants were subject to at the
time of the deed. But if one does not understand the phrase
nulla poena sine lege pravia as it is understood on the
European continent, i.e., as meaning that law in the sense
of "lex" is a rule laid down by the State, a State law, but
is of 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, we have
one question left: As things happened to be, did the
defendants - formerly ministers, military leaders, directors
of economy, heads of higher authorities - feel at the time
of the deed, or could they have felt that a behaviour which
is now made punishable by a retroactive law was against
their duty?

The answer to this question cannot be given unless one has
an insight into the nature of the constitution of the German
Reich at the moment of the deed.

The German Reich was incorporated into the community of
States in that form, with that 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 that
constitution which they happen to have at the time.

The prosecution has, with full justification, tried to give
a picture of this concrete legal structure of the Reich.
For, without trying to do this, 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 attempt to be made.
But I am afraid that, with the picture presented by the

                                                   [Page 94]

prosecution, it is not possible to arrive as close to the
truth as is possible in spite of the complex nature of the

The prosecution starts with 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. It was only various things in this history, at
home and especially abroad, that made Hitler's rise to power
at all possible or which made it easier for him, and it was
many things in this history that guided, urged on, limited
or put a brake on 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 so-called Fuehrer
principle was, in fact, for the eyes and even more for the
ears of the German people and of the world in general, the
organisational guiding principle in the development of the
Reich constitution
after 1933,

It was certainly never unambiguous and it considerably
changed its character during the course of the years. In the
life of men, leading and commanding present inherent

There exists one - may I say - soulless, mechanical way of
governing mankind, which is to rule by issuing commands; and
there is another one, which is to lead the way by setting an
example and to be followed voluntarily. This differentiation
between two fundamentally different methods of governing men
is often made difficult by the words used; in the German
languages for instance, this is so because leading is
sometimes called unconscious ruling, and ruling is sometimes
called leading. Furthermore, the differentiation is rendered
more difficult by the fact that it is at one time leading
and at another commanding that governs the relations between
the same persons or by the fact that methods which are
actually applicable to leading are used for ruling, 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 complement, advance and keep a check on each other.
Both methods appear continually and everywhere. There has
never yet been a really great ruler who was not also a
leader. But minor rulers are also subject to this law. And
the Hitler regime brought 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 saw 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 particular synthesis of leading and commanding found
its strongest expression in the person of Hitler himself, in
his actions of leading, for instance in his speeches, and in
his commands. These became the motive power of the German
political life of that time. Justice must be done above all
to this phenomenon. It is of absolutely decisive importance
for judging the enormous mass of facts which has been
produced here. With all the caution which is natural to men,
who think along scientific lines and which imposes on them
an almost unconquerable mistrust of any attempt to
comprehend and evaluate events which have happened so
recently, one can perhaps risk this assertion. In the course
of the years, Hitler gave commanding an increasingly
favoured place to the detriment of acts of leading, and
finally brought it so much to the fore that commands and not
the act of leading became the all-decisive factor. Hitler,
the man of the people, became more and more the dictator.
The speeches in which he repeated himself ad nauseam even
for his most willing followers and over-shouted to the
irritation even of members of his entourage who had faith in
him, became rarer, but the legislative machine worked faster
and faster. A later age will perhaps realize how far the
great change in the attitude of the German people to Hitler,

                                                   [Page 95]

which was beginning even before the war, was the cause or
effect of this state of affairs.

While, on the superficial question, i.e., the question as to
how he wished to be designated, Hitler pressed not to be
called "Fuehrer and Reich Chancellor" and longer but only
"Fuehrer", the way in which the State was being governed was
following the exactly opposite path; leading disappeared
more and more any there remained naked domination. The
Fuehrer's orders became the central element of the German
State edifice.

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

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

Here we have come to the fundamental question in this trial:
What position did Hitler's orders occupy in the German
constitution? Did they belong to the type of orders which
were set aside by the Charter of this Tribunal as grounds
for the exclusion of punishment?

It was perhaps harder for a lawyer who grew up in the habits
of the so-called constitutional State ("Rechtsstaat") than
for other people to witness the slow and then ever more
rapid disintegration of the guarantees of the constitutional
State; for he never came to feel at home in the new order
and always stood half outside it. But, for this very reason,
he probably knows more than anyone else about the
peculiarities of this new order. An attempt must be made to
make it comprehensible.

State orders, whether they lay down rules or decide
individual cases, can always be measured against the
existing written and unwritten law, but also against the
rules of International Law, morals and religion. Someone,
even if only the conscience of the person giving the orders,
always asks whether the person giving the order has ordered
something which he had no right to order? Or: has he formed
and published his order by an inadmissible procedure? But an
unavoidable problem for all domination lies in this: Should
or can it grant the members of its hierarchy, its officials
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 domination which has appeared in history to date has
given an affirmative answer to this question. Only certain
members of the hierarchy were ever granted this right; and
they were not granted it without limits. This was also the
case, for instance, under the extremely democratic
constitution of the German Reich during the Weimar Republic
and is so today under the occupation rule of the four great
Powers over Germany.

In as far as such a right of examination is not granted to
members of the hierarchy, the order has legal force for

All constitutional law, that of modern States as well, knows
acts of State which must be respected by the authorities
even when they are defective. Certain acts of laying down
rules, certain decisions on individual cases which have
received legal force, are valid even when the person giving
the order has exceeded his competence or has made a mistake
in form.

If only because the process of going back to a still higher
order must finally come to an end, orders must exist under
every government that are binding on the

                                                   [Page 96]

members of the hierarchy under all circumstances and are
therefore law where the officials are concerned, even if
outsiders may see that they are defective as regards content
or form, if measured against the previous laws of the State
concerned or against those 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 tous can be in contradiction to what is right,
but he did not fail to appreciate that the orders of this
volonte de tous are binding.

In indirect democracies the resolutions of a congress, of a
national assembly or of a parliament may have the same

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 alter the
constitution and proclaimed by the President were under all
circumstances law for all functionaries, including the
independent courts of law, even if the legislator -
knowingly or unknowingly - might have violated rules not
imposed by the State but by Churches or by the community of
States. In the latter case the Reich would have been guilty
of an international offence. For it would not have seen to
it that its legislation was in accordance with International
Law. It would, therefore, have been responsible in
accordance with the international regulations regarding
reparation for international offences. But until the law
concerned had been eliminated in accordance with the rules
of German constitutional law, all officials of the hierarchy
would have had to obey it. No functionary would have had the
right, let alone the duty, to examine its legal binding
force with the aim of obeying or refusing to obey it,
depending on the result of this examination. This is not
different in any other State in the world. It never was and
never can be different. Every State has had the experience
of its ultimate orders, its highest orders, which must be
binding on the hierarchy if the authority of the State is to
exist at all, being on occasion in conflict with rules not
imposed by the State - to divine law, to natural law and to
the laws of reason. Good governments take trouble to avoid
such conflicts. To the great sorrow - indeed to the despair
- of many Germans, Hitler frequently brought about such
conflicts - and serious conflicts. And, if only for this
reason, his way of governing was not a good one, even though
it was for some years successful in some spheres. Only it
must here be asserted 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; and it was
only some of the people concerned who were fundamentally
affected, many being only superficially involved; not to
mention those conflicts that remained unknown to the over
whelming majority of the people and of the hierarchy, nor,
therefore, those orders by which Hitler not only showed
himself to be inhuman in individual cases, but simply
outside the pale of what is human. It is a purely academic
question: Would Hitler's power have taken such deep root, or
would it have maintained itself if these inhumanities had
become known to larger sections of the people and of the
hierarchy? They just 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 seemed 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 right in
principle. And even if this is not yet the case today, one
day the world will know that the vast majority of thinking
Germans did not think any differently on this matter from
the majority of thinking people of other nations of Europe
and outside it.

                                                   [Page 97]

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

This is what happened in Germany from the beginning of 1933
onwards. 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 24th March, 1933, by which the
institution of Reich Government laws was created and thus
the separation of powers in the sense in which it had been
customary was, in practice, eliminated, and, according to
the transcript of the Reichstag session, brought about 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 elected deputies had
been kept away from the session by the police and 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, as no constitution could legalise its own 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 that is entirely cut off
from the realities of life can attempt 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 misguided if one ignores how the institution
of government laws, i.e., of cabinet laws, 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. From the time
when Hitler became head of the State, practice quickly led
to him standing both before the hierarchy and before the
whole people as the undisputed and indisputable possessor of
all competence. The result of the development was at any
rate that Hitler became the supreme legislator as well as
the supreme author of individual orders.

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