The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. JAHRREISS, Continued:

It was not least of all under the impression of the
surprising successes, or what were considered successes in
Germany and abroad, especially during the course of this
war, that he became this. Perhaps the German people are -
even though with great differences between North and South,
West and East - particularly easily subjected to actual
power, particularly easily led by orders, particularly used
to the idea of a superior. Thus the whole process may have
been made 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 kill the idea that it was essential
to allow justice to be exercised by independent courts, at
least in matters which concern the wide masses in their
everyday life. Up to the highest group of party officials -
this has been shown by some of the speeches by the then
Reich Justice Leader, the defendant, Dr. Frank, presented
here - there was resistance, which was actually not very
successful, when justice in civil and ordinary criminal
cases was also to be forced into the sic volo sic jubeo of
the one man. But apart from the judiciary, which was
actually also tottering, absolute monocracy was complete.
The Reichstag's pompous declaration about Hitler's legal
position, dated 26th April, 1942, was actually only the
statement of what had become practice long before.

The Fuehrer's orders were law already a considerable time
before this Second World War.

In this State order of his, the German Reich was treated as
a partner by the other States, and this in the whole field
of politics. In this connection I do not wish to stress the
way (so impressive to the German people and so fatal to all

                                                   [Page 98]

opposition) in which this took place 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 in the case of his State shows. I
should I like rather only to point out that the governments
of the greatest nations in the world considered the word of
this "almighty man" the final decision, incontestably valid
for every German, and based their decisions on major
questions on the fact that Hitler's order was incontestable.
To mention only the most striking cases, this fact was
relied upon when the British Prime Minister, Neville
Chamberlain, after the Munich conference, displayed the
famous peace paper when he landed at Croydon. This fact was
adhered to when people went to war against the Reich as the
barbarous 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, not lastly because of the recognition from abroad
and because of 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
the totalitarian governments to attain a certain goal. Only
one who has lived as if expelled from amongst his own
people, amidst blindly believing masses who idolised this
man as infallible, knows how firmly Hitler's power was
anchored in the anonymous and innumerable following who
believed him capable only of doing what was good and right.
They did not know him personally, he was for them what
propaganda made of him, but he was so uncompromising that
everybody who saw him from close to and saw otherwise, knew
clearly that resistance was absolutely useless and, in the
eyes of other people, was not even martyrdom.

Would it therefore not be a self-contradictory, proceeding
if both the following assertions were to be realised at the
same time in the rules of this trial?

(1) The Reich was the despotism of this one man, and for
this very reason a danger to the world.

(2) 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 not be illegal at all,
with one exception which will be discussed later - an
exception which, if carefully examined, is seen to be only
an apparent one - namely, with the exception of those cases
in which the monocrat placed himself - according to the
indisputable values of our times - outside every human
order, and in which a real question of right or wrong was
not put at all and thus a real examination was not demanded.

Hitler's will was the ultimate authority for their
considerations on what to do and what not to do. The
Fuehrer's order cut off every discussion. Therefore:  A
person who as a functionary of the hierarchy refers to an
order of the Fuehrer's is not trying to provide a ground for
being exempted from punishment for an illegal action, but he
denies the assertion that his conduct is illegal; for the
order which he complied with was legally unassailable.

Only a person who has understood this can have a conception
of the difficult inner struggles which so many German
officials had to fight out in these years in face of many a
decree or resolution of Hitler. For them such cases were not
a question of 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 more

Therefore: Whatever the Charter understands by the orders
which it sets aside as a ground for exemption from
punishment, can the Fuehrer's order be meant by this? Can it
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 developed, a constitution which had
been explicitly or implicitly recognized by the I

                                                   [Page 99]

community of States? Many Germans did not like 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 a horror. But
that does not in any way alter the following fact: must not
those people who did their duty in this hierarchy, willingly
or unwillingly, in accordance with this constitution, feel
that an injustice was 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 could refuse to accept or tolerate as
members such States as have a despotic constitution. But up
to now this has not been the case. If it is to be different
in the future, the non-despotic 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 entering the family circle from outside.
Today people are realising more and more clearly that this
is the crux of our question. The circumstances must be very
special if a modern people lets itself be governed
despotically, even if it is as well disciplined as the
German people. But as soon as such circumstances do exist,
there are no internal counter-measures left. Then only the
outside world can help. But if, instead of this, the outside
world recognises this constitution, it is impossible to see
where successful internal resistance can come from. In
pointing to these special circumstances and to the
recognition by the outside world, we draw attention to
facts, for the existence of which no German was, in our
case, responsible but which cannot be ignored when one asks
how all this was possible.

But certain further facts must also be drawn attention to,
without a knowledge of which one cannot fully grasp the fact
that Hitler's absolute monocracy was able to get such a
terribly firm hold. Hitler combined in his person all the
powers of issuing legislative' and administrative orders on
the highest level, 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. But the dividing lines between these spheres
were not always sharply drawn. In the modern State,
particularly in the major States of a technical era, this
cannot be avoided. But the tendency to exaggerate questions
of competence is certainly no less marked in Germany than in
any other country. This facilitated the erection of dividing
lines between the departments. Every department watched
jealously to see that no other one trespassed into its
field. It everywhere suspected tendencies of other
departments to expand; 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 organisers. Instead of co-operating and going
through thick and thin together, they fought each other.
Instead of a conspiracy we rather have a divergence. The
history of the jealousy and mistrust between the powerful
persons under Hitler has still to be written. And let us now
remember that in the relations between all departments, and
within each department, people surrounded themselves with
ever-increasing secrecy; between departments and, within the
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", i.e., non-private life, in
Germany as under Hitler; but also never before was public
life so screened from the people, above all from the
individual members of the hierarchy themselves, as under

The one 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 from other functionaries
only needed to refer to an order of 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

                                                  [Page 100]

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 repeat: an order of 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 dividing line? During the first
period at any rate, i.e., 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 amongst the people saw in their Fuehrer a
man close to the people, a selfless, almost superhumanly
intuitive and clear-thinking pilot, believed only the best
of him and only had one worry: whether he was also choosing
the right men as his assistants and whether he was always
aware of what they were doing. This tremendous power, this
unlimited authority was given to this Hitler. As in every
State it also included harsh orders. But it was never
intended as authority to be inhuman. Here lies the dividing
line. But this line has at no time and nowhere been quite
clearly drawn. Today the German people are completely
disrupted in their opinion, feelings and intentions; but
they are probably in agreement on one thing, with very few
exceptions: they would not wish to draw this line with less
severity as accusers than other peoples do towards their
leaders. Beyond that line, Hitler's order constituted no
legal justification.

But it must not be forgotten that this line is not only
vague by nature but follows a different course in peace to
what it does in war, 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 in any nation
in the world.

Hitler himself, at any rate, did not recognize this dividing
line of inhumanity, of non-humanity, as a limit of obedience
in his relations with his subordinates, and here also
opposition would have been considered a crime punishable by
death in the eyes and for the decisions of this man with
limitless power who controlled an irresistible machine. What
should a man who received an order overstepping this line
have done? A terrible situation! The reply of Greek tragedy,
the reply of Antigone in such a conflict cannot be imposed.
It would be Utopian to expect it, or even demand it, as a
mass phenomenon.

Before we come to the special question of who in the Reich
possessed the power of deciding about war and peace, a
further 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) like the
Decree concerning the setting up of the Protectorate of
Bohemia and Moravia of 16th March, 1939, or "Verordnung"
(Order), like the order for the execution of the Four-Year
Plan of 19th 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 high or highest
civil or military functionaries as well. But it would be
fundamentally wrong to assume that this was a case of
counter-signatures as they are understood in the modern
democratic constitutional law of nations ruled
constitutionally or by a parliament - of a counter-signature
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, i.e., of the principle
that every decision must be made by one - and only one -
man, to consider anything else even possible, above all
things 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

                                                  [Page 101]

of such counter-signing may have been, there was never any
doubt that the, Fuehrer's orders represented only his own
decision and no one else's.

Special attention must here 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 solely 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, onwards at the latest, the
German Reichstag was not a parliament but an assembly for
the acclamation of Hitler's declarations or decisions. These
scenes of legislation appeared to many people, at home and
abroad, almost to be 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 counter-speeches.

There are, 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," "The Fuehrer has decreed." We have
before us 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-in-Chief 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 Supreme
Command of the Armed Forces (the 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 - so to speak by implication - dealt
with the question as to who was responsible for the ultimate
decisions - for this State's decisions regarding questions
of existence, especially for the decision about war and
peace ....

Kelsen said - in his great treatise of the year 1943, which
I have already mentioned above - "probably the Fuehrer
alone." We must 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,
i.e., 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 - as to
give the Reich legislature no option in its decision; a
problem which, as far as I know is well known, has become a
real one in the United States with regard to the
relationship of the President to Congress and has,
therefore, been seriously discussed, while it was not a real
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
have tolerated as little as 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 thought fit.
The military means of power must be at the disposal of the
political leaders of a State. Otherwise

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they are not means of power at all. This 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 amongst the

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