In figure II where the extent of participation are discussed once more, the plan is mentioned again, that can not mean anything else but a reference to Figure I; that is to that point where planning in Figure A is listed as an independent punishable fact but not a reference to that figure where planning is not an independent fact. Figure II does not list new facts but only explains forms of participation with reference to the facts listed under Figure I. Therefore, the argumentation which after the term of conspiracy has been left out, wants to interpret it into those paragraphs dealing with the forms of participation, to my mind does not seen to be within the scope of this law.
In this connection, before I continue, may I apologize respectfully that I am quite aware to speak as a continental jurist to an American group of Judges, and therefore, I ask that my word be understood in that manner.
The Frenchmen have, in the meantime departed from the English-American principles of conspiracy. I quote from a speech made by Professor Donnedieu De Vabres, who was a judge at the International Military Tribunal before the Association of the International Students - I will give you the French words later on for the translation - and he said that the concept of conspiracy presents an extreme danger, of a certain element of insecurity. I am translating it rather politely - to make certain elements of insecurity possible. He says that the charge of conspiracy really is the weapon of totalitarian states, and that if Hitler wanted to accuse his political opponents he charged them with a conspiracy against himself. That is a political argument brought by Donnedieu De Vabres quite apart from the juridical arguments, and that is that, in our continental development of law the fact of conspiracy has made us afraid for reasons of its rather vague extent.
May I say in that concept of conspiracy there is a very sound core, and that the fact of conspiracy, that is the fact that an action becomes punishable which would hot have to be punishable had it been completed without plan as an individual act; this seems to be absolutely sound.
But we do not dispose of the sound corrective provisions which American law has found with respect to conspiracy, and, therefore, we are worried whenever we are faced with that concept. As for an extension of this section or of participant, beyond the forms of participation, that can be found in our law also.
First in the facts of a Complot and in the facts of a Gang (Bande). For us the term of Complot always is a preliminary step to a crime which still has to materialize. In preliminary action which does not yet constitute the fact itself. Particularly herein Bavaria there is an excellent jurist, the famous Feuerbach, who dealt with the term, the concept of Complot, in the common law at the beginning of the last century. According to him, the prerequisite of Complot consists of three things:
First, the arrangement has to be directed to a common action. Each participant has to be prepared already to contribute by further action to a committment of the facts.
Second, the acts have to be committed from the circle of the participants in the Complot.
And, third, they have to act with their own interest in the committment of the crime, the animus auctoris.
You will see immediately that the essential difference between conspiracy, between the English and American law, is found in that term of Animus Auctoris, the revelation of each participant to contribute a prerequisite for the committment of the facts.
The Gang, the other continental concept of Delict is an arrangement, but it is uncertain which acts are to be committed. The concept of a gang, therefore, departs from the attempt to individualize the crime, but beyond doubt it requires a concrete threat of punishment. This concept has developed so far that it can not lead to punishable facts unless it is expressed in a particular way. For instance, in Article 6.5 of the Code Penal and of the Crime Code De La Paix Public Publique, crimes against the peace, or it is found in the draft for penal law concerning disturbances of the order.
This concept of gang, this gang itself, says can only be punished if a Lex Poenalis, a law for its punishment, existed.
That Lex Poenalis, however, is precisely what gives us the reason, the possibility here to come to a limitation of our material for conspiracy and I am in a position to prove it as far as all continental domains of law are concerned -- that is, I reserve the right to do that later -- according to continental law, neither in Germany nor in any of the countries occupied by Germany was subjected to punishment. The punishability of conspiracy therefore is independent on the question as to whether, together with the conquering powers, also other substantive law entered Germany. The French version of international law has developed a principle - "Where the flag is there is France" (ou le drapeau est France). That principle, however, has not been acknowledged according to international law. The principle is followed which has been expressed in the Hague Convention, that an occupying power shall use the law of the occupied country unless there are necessities for doing otherwise. Starting with the law of the country until the very moment when allied troops entered here, conspiracy, neither by domestic laws or by international law was ever put under punishment. Therefore we are faced with the question -whether by the establishment of military jurisdiction such an institution within the law has been imported which up to now has not existed. The second question is the following - whether, retroactively, the application of an English-American legal standard can be accepted. Up until now we in Germany were at a veritable loss to interpret Law 10 and we took the "position of just accepting it as something which was put upon us and to which we just have to obey. That point of view may be correct inasfar as we owe obedience to the law; but, just the same, as far as an interpretation of the law is concerned, as to its meaning, we certainly can think about that and discuss it. In my opinion, Law 10 does not show any retroactive force. Law 10 seems to me to be the codification of those provisions applicable for a certain group of crimes. Prerequisite for the prosecution of crimes by the Military Tribunals, according to Law 10, in my opinion, seems to be that these acts were also punishable at the time of the occupation - that is to say, the beginning of the occupation, inasfar as they had been committed previously.
I believe I have understood the prosecutor correctly when he wants to include the time from 1933 to 1945 for the conspiracy. In my opinion it is beyond doubt that a Military Tribunal sitting here -- of course opinions vary but this is my opinion - is authorized to judge crimes which were committed before 1945; but that does not imply that this jurisdiction has to be based on American substantive law. In my opinion that jurisdiction should take into account that law which existed in the country, or, if one wishes to say, the occupied counties - at any rate on the continent - previously.
THE PRESIDENT: May I ask you a question? Let me see if we understand your position. I think perhaps you have argued a little broadly beyond the immediate issue. The question is asked only that we may understand the position you are taking. Is it your view, as a, matter of law, that conspiracy is not a separate and substantive or independent crime for which a defendant could be convicted, even though he had not been found guilty of any particular war crime or crime against humanity? Isn't that, in substance, your position?
DR. HAENSEL: I am of the opinion that conspiracy should represent a fact which is punishable even though the individual act could not be proved to the extent that a punishability or guilt, at least, has been proven.
THE PRESIDENT: That is what you claim conspiracy is. But isn't it your claim that under Control Council 10, a defendant could not be convicted of a substantive, separate, independent, charge of conspiracy in a case in which there was no evidence sufficient to convict him of a substantive crime, a war crimes or crime against humanity? Isn't that your position?
DR. HAENSEL: May I say one thing? The difference seems to be in the term of proving the guilt. As far as we are concerned, the principle principle of illegality comprises the difference.
The knowledge of illegality has to be proven for all the facts, whereas in the case of conspiracy it would suffice that an indefinite planning led to a crime which a person, charged with conspiracy only, himself did not intend to commit or to have committed. Of course an independent conspiracy does not exist in the sense that it would be independent of the facts of committing war crimes but there is a difference, as far as the degree of guilt is concerned and the time over which it extends. If somebody, for instance, has been in the Ministry only for one year or for half a year during that entire period between 1933 and 1945, then if conspiracy is not proven or assumed, participation in some war crimes would have to be proven. However, if conspiracy is assumed, it would suffice that he got into that circle of conspirators, regardless of when.
THE PRESIDENT: Well, let me ask you one more question. Let us assume that when all of the evidence is in and has been considered there is not sufficient evidence as to some one of the defendants to permit or require the court to find him guilty of any war crime, as defined, or of any crime against humanity, as defined, in Trial Council 10. Then, I ask you, isn't it your position that under a proper construction of the law which controls this Tribunal, such a defendant could not be convicted of a separate charge under Count One of the Indictment?
DR. HAENSEL: Yes.
THE PRESIDENT: I am not asking this to trap you. I am trying to understand your position. Isn't that really the substance of your motion?
DR. HAENSEL: Yes, I am of the opinion that he could not be judged... that he could not... This is the way I understand it. If active part of participation in a war crime can not be proven to him, then in my opinion he can not be sentenced. That is the way I understand the law.
THE PRESIDENT: Isn't that the issue that you have raised by your motion?
DR. HAENSEL: Yes.
THE PRESIDENT: I understand. We have extended beyond our time. We will take our recess at this time.
(A recess was taken.)
THE MARSHAL: Military Tribunal No. 3 is again in session.
ThE PRESIDENT: Is the defense prepared to proceed with its witness? Has Dr. Haensel concluded his argument?
DR. KUBUSCHOK: Before the witness is called I think it is necessary after all, in a few brief sentences to revert to the subject of our previous discussion. Summarizing, the Prosecution in writing and verbally has raised an indictment from the independent cunt of conspiracy, The defense has made a motion to declare the indictment insufficient in that respect. Today the Prosecution has substantially said the following: concerning the question of independent indictment of conspiracy we cannot yet Very well make a statement, because Gen. Taylor is not here. But for practical reasons that is not so bad, for through the discussion of the action of participation in particular of the provision that somebody is guilty who is in connection with a dead and the commission of a deed, the evidence according to that provision must essentially also extend to those factors which would have to be discussed if an independent conspiracy were assured.
I have to contradict that very energetically. The evidence in both cases is not identical, by any means. I should now immediately discuss the example of the expert. Is the offense of conspiracy to be considered an independent offense, then many questions will have to be put by us which concern the organization of state, the organization of the Ministry of Justice, and of the courts in order to bring counter evidence that a conspiratorial connection did not exist by any means.
I want to go one step further in time and wish to discuss the case which will have to be dealt with next, the Schelgelberger case. If an independent offense of conspiracy is assumed, I, as a dutiful defense counsel concerning the very open question of law of the consequences of of joining and leaving a conspiracy, in effect, must bear in mind the entire period which comes under the Thierack regime. I am of the opinion that, as a matter of course, Schlegelberger's resignation from office quite evidently was legal and it would mean that he left the conspiracy.
But as I said, the questions legally are so open that it is my duty to consider also all those points. The Prosecution will say to me, we have produced documents and material. One of the defendants will in any case be affected by those documents. Therefore that does not apply. But that does not apply in effect, either, It makes a great difference whether fifteen defendants and fifteen defense counsel occupy themselves with one and the same document. Many heads, many opinions. Many different opportunities of interpretation of the facts and the law. Consequently in effect in the interests of an expedient trial it is decisive as to whether now at the beginning of the trial the question of the independent offense of conspiracy is to be eliminated from our consideration or not. The Prosecution had the opportunity to drop that count. If it does not do so, it is my view that cannot do without a ruling of the Court, that such a ruling should be made soon before the evidence for that I have cited the example of Schlegelberger and the example of the expert we are going to produce today. And if in conclusion I may point out this, the legal question whether under Control Council Law No. 10 and independent offense and conspiracy can be applied or not is comparatively simple. The Prosecution must have dealt with that question when it produced and submitted its indictment. I believe, therefore, that already today enough material is available to make a decision about that question, because it is purely a legal question the answer to which results from the law.
THE PRESIDENT: We full understand your request for an early decision. It has been made clear to us before. We are ready to hear the first witness.
DR. SCHILF: May it please the Court, may I ask your permission to grant me a two minute interval so that I can call the expert, who is in the courthouse at the moment.
THE PRESIDENT: Dr. Kubuschok, I think we promised you yesterday that we would inform you today concerning the time at which you should proceed to start the case for your defendant, Dr. Schlegelberger. The Tribunal is unanimously of the opinion that it will be necessary to request you to proceed immediately following the completion of the other witnesses, or of the expert witnesses.
DR. HERMANN JAHRREISS, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
( The witness repeated the oath.)
JUDGE BLAIR: You nay be seated.
DR. SCHIBF: May it please the Court, before I address questions to the expert, I would like to explain that I an not conducting this examination as a defense counsel for my own defendants Klemm and Mettgenberg but for all defense counsel, and that Dr. Schubert, after me, will put a few questions as far as it concerns the judges in the dock here.
DIRECT EXAMINATION BY DR. SCHILF:
Q. Professor Jahrreiss, nay I ask you to tell us your name and your profession and your residence.
A. Professor at Cologne University; at present on the staff of eiters of the Record of IMT. Do you also wish me to name my residence, counsel?
Q. Yes.
A. At this tine, in Nurnberg. I was born at Dresden; the date of birth, 19 August 1894.
Q. So that I can afford the court the opportunity to acquaint itself with your particular research field, nay I ask you briefly to describe to us your field of research as Professor of Law.
A. My work since 1923 has dealt with the fields of constitutional law, international law, and the law by the League of Nations, general constitutional law, and philosophy of law.
Q. May I ask you just by way of example to mention your own pub lications-- the publications of a scientific nature.
A. Well, that is rather a lot; but publications which concern this subject here, I could mention: Law and the Calculability of Law, The Foundations of Law and State; another publication on the Relations of the Constitution of the Reich to the League of Nations; then in the textbook which Anschuetz and Thoma edited on German Constitutional Law, my work about the equality of the citizens before the law; and Above all, ay own version of the year 1330 about the German Constitutional System.
Concerning the first problem the German Constitutional Law, that is the subject on which I wish to start. My first question will open the direct examination. Is it correct that Hitler in the order of the so-called Third Reich was the supreme law giver?
A . Yes, that is correct, although that was not so from the very beginning of that era. That only happened in the course of events. But at the latest, if you'd like me to mention a date, that occurred when the offices of Chancellor and Reich President were reunited in him; that is to say, first of August 1934. That is the latest date.
Q. It was like this then: Hitler's authority developed gradually until it reached its final culmination?
A. Yes, that is correct. If I may add this, one must say that the development of Hitler's followed a development which occurred prior to his own era.
Q. Do you mean to by by that that the 30th of January 1933 did not bring about a complete break of the development prior to Hitler?
A. Yes, that is what I would say.
Q. Do you also mean to say by that that the so-called changeover, that is the seizure of power by the NSDAP, was legal?
A. That is a very difficult question. First of all it is difficult because one would have to say in greater detail what events represented the changeover--whether one adheres to the formation of the government on 30 January 1933, or whether one discusses the Enabling Act promulgated on 24 of March 1933, or how far altogether one wants to extend the events of the changeover.
I can only answer conditionally. If one considers only the formation of the government, that is to say the act of entrusting Hitler with the Chancellorship on 30 January 1933, and if by "legal", one moans the purely author formality, in that case it cannot be denied that the operation was carried out legally. That is to say, under Article 53 of the Weimar Constitution, according to which the Reich President forms the Cabinet and Parliament--the Reichstag-that is to say from the point of view of formal right, only afterwards has the opportunity to have a destructive influence on the formation of the cabinet. Under the Weimar Constitution, the Reichstag does not form the cabinet alone or together with another organ, but the President does that. The other organ is immediately elected by the people of the Reich. That is why it says in the Weimr Constitution quite clearly, Article 54, which incorporates the system of Parliament which creates the constitution of the vote of non confidence that is concerning it, and does entrust the President with the formation of the cabinet. Yes, in fact one has to say a little more. In the formation of the government, the appointment of the Reich Chancellor is the solo act of the President; side by side with, let us say , the dismissal, with which the counter signature of the Chancellor is purely formal.
In the development of the Weimar Constitution, after initial waivering, there evolved the principle that the now Chancellor appointed or signed the dismissal of the old Chancellor and his own appoint-men, which is really illogical. I don't think there is any need for mo to explain that any further.
But as the Weimar Constitution in Article 50 provided that every provision made by the president should be countersigned by the Reich Chancellor, or one of the Reich Ministers -- at least one; one was compelled to have even the appointment of the new chancellor countersigned. That means naturally for the new chancellor that he drags himself out of the mire by his own efforts. Counsel, if your question refers to the 30th of January -- formally the procedure was orderly; a great deal more difficult is the question for the Reich law of 24 March, 1933, that famous law, the validity of which was doubted so much; it is a much more difficult if your question refers to that. That law has as its main contents -- I can even say with a little exaggeration -- the elimination of the party system. Three provisions or groups of provisions of the Weimar Constitution are excepted, but for the rest the government could now promolugate laws seven if that meant changing the constitution of the Reich; for the normal life of the people legislators and supreme administrators, that is a basic change of the entire structure of the Weimar Constitution. And I can say frankly if I during the first years of the Weimar Constitution, as an expert of the constitutional law, would have been asked whether the Reichstag, even if there was a majority, can't change the constitution under Article 76 if the Reichstag could make such decisions, could pass a law which, in effect, eliminates the Reichstaf, if I had been asked such a question I would have said there is nothing about that in Article 76 that restricts the passing of such laws; but there is not only legality, there is also legitimacy in every constitution; there are certain basic decisions contained in any constitution which one cannot abondon without the entire losing of his character. But I must say the German science of constitutional law, particularly in the person of the most fanatic champions of democracy, did not take that point of view. Gerhard Anschuetz, who, if it is permitted to say anything like that about a republic, was the crown jurist of the Weimar Republic. His commentary to the Constitution of the German Reich is the authorative commentary.
Gerhard Anschuetz whose last position was that of Professor at Heidelberg, was, I might say, a temple guard of the Weimar Constitution, and if he only thought an attempt had been made to shake the foundations of democracy, perhaps by creating a group of judges who could have reviewed decisions by the Reichstag, he would have been furious. I must say that because only now it becomes understandable what authority Anschuetz' opinion carried, which was concurred in by all German constitutional lawyers that there wore no limits for Article 76, concerning the amendment of the constitution, Anschuetz stated repeatedly that the Reichstag, with the majority that can amend the constitution could abolish the republic , the federal state, democracy, even basic laws. No judge was entitled to doubt the constitutional validity of such a law. If previously I said that concerning that law of 24 March, one might have legal misgivings, I had something different in mind. I believe if I had been the president of the Reich, and if I had the knowledge of the events, I would have refused to issue that law and to promulgate it, for it is the Reich president who has to examine whether the law has come about in a constitutional manner. I am convinced, however, that on no account procedures can be constitutional when the present majority and the majority which passes the resolution was not formed by the Reichstag which was elected but by a Reichstag who had been curtailed in the executive. Much has been said about that, and there is something else that enters into that question, and I have to say that quite openly that has not been discussed before. At that session at which the Reichstag passed that law which changed the constitution, the Reich Chancellor felt that the Reichstag might make difficulties, and he threatened with revolutionary forces, but even that doesn't help and particularly it doesn't help according to Anschuetz. Anschuetz and German experts on constitutional law consistently upheld the view that the assurance of the Reich president, given by his signature, that the law had been passed in an orderly manner excluded all scrutiny.
Therefore, we have to say under objective law there maybe misgivings, serious misgivings about that procedure, but according to what at the time was the guaranteed practice of constitutional law which was upheld by the opinion of the most fanatic upholders of the Weimar Constitution, the signature by the Reich president excluded any scrutiny as to whether the law came about in an orderly manner. I believe that I have now indicated that the question for the socalled legality of the change-over, even purely formal, is very difficult to answer , but for t e rest it seems to me that this is only a verbal argument; a revolution, and that was meant to be a revolution. Hitler even thought it had been the only real revolution. And according to its aim and meaning it ca-not be legal, but in any case if it comes off, that is how it always will be in the world of states. It provides the soil on which the new order, slowly or more quickly, evolves, according to custom, and custom after all is the law.
Q. Professor, we are particularly interested to explain to the Tribunal the constitutional status of the so-called Hitler decrees. May I ask you, now that you have answered the question of legality on the one hand and theories of legitimacy(Legitimitact) on the other hand, would you now from the developments explain the constitutional status of the Hitler decrees within the meaning of my first question as to whether he was supreme legislator of the Reich.
A. I am afraid I shall have to go back a bit for that because that question really concerns the entire question of the so-called constitution of the Third Reich. For many a German, too, it is a mystery as far as Hitler's authority is concerned, but it must be that for all those who are not Germans. Many misunderstandings which I encounter again and again in conversations are due to the fact that certain unavoidable factors which are involved in any ruling, are ascribed to Hitler's regime.
A further difficulty consists in the fact that the peculiar constitutional insecurity in which most of the states in Europe have lived for many years, from the point of view of their constitution, produces phenomena which do not restrict themselves to Hitler's regime, but only appeared there particularly clearly. But above all -- because otherwise I cannot provide you with the background -- I should like to explain that a little further to the Tribunal --
above all, there is considerable ignorance about certain peculiarities of the German situation, in particular concerning the Constitution. I believe I may say without encountering any contradiction that in this courtroom jurists are fighting for clarity among themselves which belonged to various methods of legal thought. Above all, there is between the European continental states and their constitutional and legal thought on the one hand and the Anglo-Saxon legal thought as far as I understand it a great difference which cannot be over estimated. In the continent of Europe in the course of four centuries a development has taken place by which law and morality in legislative thought are separated sharply; and so as the question of morality arises, the lawyer on the continent of Europe says as a Lawyer, "That has nothing to do with me. That may be regrettable, and I myself do think it is regrettable, but, after all, that is the historical reality." How far that development goes, I can show to the Tribunal by giving an example which perhaps is the most important, and again that concerns the opinion of Gerhard Anschuetz concerning Article 102 of the Constitution as to whether the courts in Germany concerning the validity of the law passed by the Reichstag are entitled to doubt it for ethical reasons. I quote -- this is in the commentary of the 14th edition, page 476 -- "If it cannot even be conceded that the judge is entitled to examine the law as for its being constitutional or not, so it can be conceded even less that he may refuse obedience to a law which was passed constitutionally because according to his opinion concerning certain standards which again according to his opinion are above the legislator, that is to say, morality, ethics, natural law, they contradict these points or because they cannot stand up to certain evaluations."
I had to read this out verbally. Therefore, it was rather difficult for the interpreter because of the position of the verbs.
The reason for that situation in Germany, which is a situation that applies to the whole of Europe, is this--and I now have to broach a subject, the effect of which did not affect England or the United States. The state in the continent of Europe came into existence from the fragments of the Corpus Christinanus of the Western Hemisphere. The break of the Medieval realm is the soil on which the modern sovereign states grew. These states starting with Italy believe ever more strongly in the idea that they are sufficient to themselves, that they can live by their own efforts, that they are under no obligation to the past or to the future. The state becomes a purpose to itself. That has been emphasized again and again, and that development goes on from Macchiavelli, the great man of Florence, Vas Haudin, the great Frenchman, as far as Hegel, the German. As a result, ethical evaluations may be made by the legislator, Parliament or the Monarch, but the resolution passed by the Monarch or Parliament deprives those who are governed by these laws of all right of objection.
May I draw the attention of the Tribunal to one event that occurred under the Weimar Constitution. During the first years of the Republic it became known among the public that Berlin was thinking of forbidding any re-valorization by law. The judges of the Supreme Reich Court of Leipzig at that time formed their own association, and that association of judges in view of that rumor held a meeting and passed a resolution to the effect that if such a law were to be promulgated, they would refuse to apply it. That happened in 1924, and it was emphasized that such a law would run counter to morality.
There was a storm of indiganation among the Reich Government. The Reich Minister of Justice protested using very sharp expressions, and the Supreme Reich Court did not carry out its threats. However, in 1927 the Supreme Reich Court in a decision published in Volume 118 declared: "The legislator in the autocraty is not bound to any other restrictions but those which he draws for himself in the Constitution or in other laws." By way of illustrating, I should like to add --
THE PRESIDENT: Doctor, we have reached the hours at which we ordinarily take our recess, and the Tribunal will recess now until one-thirty o'clock this afternoon at which time you may continue.
(A recess was taken until 1330 hours.)