This merely signifies that no local form is possessed, of jurisdiction to pass upon the propriety of the conduct of the State in enacting the law. It does not imply that that conduct is internationally defensible or that the judges approve of it."
Do you find yourself in agreement or in disagreement with that statement?
A Yes and no, because -- may I explain? I believe that it is a mistake if the question as to how in legal science justice and injustice as well as the hierarchy of the legal sources are divided. This is not separated from the question as to how in the national order in the case of collision or of legal norms the courts or administrative authorities have to act. In our case, I have already pointed out, naturally. International Law can be effective only if the State's legal systems basically are brought into line with it. Since mistakes can occur there must be a means in order to comply with international law. But the very question is how such inconsistency can technically be removed. The method which between International Law and Local Law has become established is the following: if between the law of the State and International Law, a contradiction exists. The State is obliged, if it does not want to become liable, to solve that contradiction. But what has to take place as long as the contradiction exists, as to how the agencies of the State have to act as long as the inconsistency exists, there are several technical possibilities, and the individual State has to decide about this and regulates it.
I can not judge how it is, for example, in the United States, but in the German Reich during the Weimar Republic, it was uncontestably as follows: that in case of such an inconsistency the court or the administrative authority which noticed the inconsistency had to apply the law of the State and it had to he left to the political representation of the Reich abroad - if necessary, to the Reich as a whole, to carry the consequences.
Mr. Prosecutor, I stated this morning that the best method which probably would leave the least possibility, that between international law and the law of the state there would be a collision, would be that the state decides that its agencies have to apply the international law before every law of the state - in preference to every law of the state. I do not know whether there is any state in the entire world where that applies. It would be very nice if that would be the case. Then the point of view of theory and the point of view of practice would both be the same. In Germany, however, it was not the case. May I ask you whether I have thus answered the point of your question?
Q I believe you have, you have stated your opinion, and that is all I wanted; thank you. You see, I am not disposed to quarrel with you; I only want to know what you think. Now, I do want to ask you, Dr. Jahrreiss, a hypothetical question. You may not agree with the hypothesis which I hypothesize or the implications perhaps inherent in them, but just for my own purpose and for orderly procedure I ask you to consider my question and answer it on the basis of the facts which I hypothesize, purely. Let us assume that I was subject to the complete power of an individual we will call "A" to force me to obey his orders implicitly; and, under those circumstances, I saw "A" procuring a strong rope, strong enough to bind a man completely and securely. Secondly, that I saw him preparing a strong wooden frame upon the ground, with iron rings through which he could pass the rope; and, so placed, that they could bind the legs and arms of a man securely. Three - and a wooden block so shaped that a man's neck could be placed on it with his head extended beyond it. And four, that I saw this man "A" sharpening an ax large enough and strong enough to cut through the neck of a man. And suppose at this same time I also saw, standing always in view, from one to six men, each of whom I know that this man "A" has a violent hatred for and has threatened to kill; and each of whom I know that this man "*A" has the power to capture if he chooses.
Now then, let us assume that this man "A" captures one or more of these men that he hates, and that I know he hates; and binds this man with the rope that I saw him prepare, upon the frame that I saw him build; and place his neck on the block that I saw him prepare; and that then "A" hands me the ax which I saw him sharpen and orders me to cut off the head of this captured, bound man. Would you say that under those circumstances I would be guilty or not guilty of the man whose head I severed at the direct order of "A" who had the full power to order me to do so.
A I understand it this way. That guilty or not guilty is to be considered as guilt under criminal laws.
Q On assumed facts, yes.
A I just want to ask you a question. Do you mean it as a legal question or as a question of marality?
Q As a question of law.
A Of law, yes, And according to what criminal law, and in what state?
Q You can name the state; I don't care.
A Well, is that supposed to be a question in Utopia?
Q Let's put it in Germany we will say.
A In Germany?
Q In Germany, yes, after 1933.
A Yes, all right. Here then, we would be faced with terrible problems with which all of us since last year have been torturing ourselves so terribly, and I confess that inspite of having thought about it a great deal, that I have not yet found my way out of the dilemma into which we have been brought. Perhaps I can answer this hypothetical question by saying, by stating first, the points of view which in a conflicting manner make the answer more difficult. Perhaps first of all I should say, so that this should be clear, Mr. Prosecutor, how I, myself would behave.- I don't know. No matter how horrible the whole thing is, I don't believe that I well - the Charter of the International Military Tribunal anticipates that an appeal to higher orders should not be admissible.
It is not my task to criticize those regulations. However, perhaps I amy be allowed to say that this regulation, if it should really be valid law in any state whatsoever, would have very dangerous consequences for order in general. One of the four judges of the IMT, the French judge, Donnedieu De Vabres, in a lecture which he save this last April expressly stated that this regulation brings with it many difficulties for the thought of the discipline imposed by the state, for the idea of the discipline imposed by the state. I have the text of his lecture here. It is a lecture which Prof. Donnedieu De Vabres gave before the Association Des Etudes, Internationales Criminologiques. May I quote a short passage from it? May I read it in French?
INTERPRETER: Yes, you may.
A Since the statute was interpreted this way under the rules imposed by the IMT, it has, in a sense of individualism, gone beyond regulations of international law and domestic law, this regulation is open to the objection that it will endanger the necessary discipline for the preservation of the state. Such a regulation can be applied in the future only with prudence and circumspection. I am quoting this here only in order to demonstrate that if any rules exist at all, a certain harshness is absolutely necessary, unavoidably necessary. I always told my young students who started out on a study of law that they would have to devote themselves to perhaps the most bitter fact in life of man, and that is rule, because by nature man hates the ruler ship, at least if he is subjected ot it, but if this is the case every state basically has to require that its laws are executed, even if the person concerned, for moral or religious reasons, or other reasons, is of a different opinion.
On the other hand, Mr. LaFollette, every state knows that there is some limitation somewhere. For example, the German Reich had a military penal law. In it there was the quoted Article 47. In the jurisdiction of the Reich court, however, this paragraph was applied more and more in a restricting sense because discipline had to be above all.
Now, Mr. Prosecutor, before the IMT I in the expert opinion which I gave, which you were kind enough to quote here, stated expressly and emphatically, I believe, what the limit of humaneness or humanity is, but at the same time I pointed out that this limit is frequently not sharply drawn; and I believe, and this comes closer to your question, that perhaps after all the problems with which we are concerned here can not be done justice to quite, if a case is described quite as drastic as you just said.
Last year during the first four months of the trial I experienced it, and those were the most difficult times of my entire life. I experienced and saw what terrible things happened under Hitler's regime, and I have no way to express my horror and to describe this sufficiently in my language, but I believe that you will agree with me if I say that those are occurrences which are outside of legal discussion entirely, for, Mr. Prosecutor, even about injustice one can, if one is exact, speak with legal reasons only in cases where - excuse me - the injustice is within normal limits.
I myself was criminal judge. One single murder frequently in the court of assises occupied our time for two to three weeks, and it was a terrible thing. Two murders by one person - that was horrifying. If someone had eight to ten murders on his conscience, then he was described as a mass murderer in the press of Europe, and people asked themselves whether this was something that could be handled by means of the penal code at all.
When last year in the courtroom of the big trial I listened to the witness, Hoess, of Auschwitz, when he answered the question of the prosecutor as to how many people he had killed, if I remember correctly, he answered he didn't remember exactly whether two and a half or three million.
At that time it was quite obvious to me that neither positively nor negatively this had anything to do anymore with legal considerations because, Mr. Prosecutor, no matter what a State regulates concerning the question of review of a law the State has to think of normal conditions. These occurrences and matters can not be measured by any order of the world at all. Therefore, I believe that these things that happened in Germany behind a complicated system of secrecy, a system of mutual delimitation, and if then one adds the pressure of conscience of millions of people who felt themselves hemmed in between patriotism and hatred of the system, then the question which you put to me attains a very bitter human weight and I can only say I don't know any way out.
MR. LAFOLLETTE: Thank you, Doctor, Thank you very much.
If Your Honors please, I know the time to rise has come, I believe, has it not?
THE PRESIDENT: No.
MR. LAFOLLETTE: Oh, well, I have no further questions. Before we proceed any further unless there is any redirect, Dr. Marx is in the room and we can present to Your Honors a stipulation with reference to the defendant Engert.
THE PRESIDENT: I should like to ask the professor a few brief questions, if this is a convenient time.
MR. LAFOLLETTE: The Prosecution is finished.
THE PRESIDENT: In order to better understand your views which you have ably expressed, I understand your view to be that judges were obliged to obey the law of their State of Germany even though in doing so they violated a principle of international law. That is a fair brief statement, is it not, of the matter?
THE WITNESS: Yes. During the Weimar Republic this was already uncontestedly applicable, and with the permission of the Tribunal, I read the commentary of Anschuetz to Article 102.
THE PRESIDENT: And you would apply the same principle after 1933, would you not?
THE WITNESS: After 1933? There was much less the question whether this was different than before.
THE PRESIDENT: What court or tribunal ordinarily enforced the rule that judges must obey the law of their State under such circumstances? I assume the answer is obvious.
THE WITNESS: Excuse me. I didn't understand your question, Sir.
THE PRESIDENT: What tribunal ordinarily enforced against the judges or upon the judges this obligation to obey the law of the State even though they in doing so violated international law?
THE WITNESS: I never heard that a court violated this principle so that there was no need to force the judges to conform to it. Mr. President, I never heard that a German court did not apply a Reich law because in the opinion of the court it was contrary to international law. I never heard of such a case. You see, it was entirely uncontested. The court just in such a case couldn't do anything but through official channels to call the attention of the Government to this contradiction so that the Government in accordance with its obligation under international law would see to it that the laws were changed. Let us assume the case that the Reich Supreme Court, for example, in deciding a case had come to the opinion that a German Reich law was contrary to an obligation of the Reich under international law. Then the Reich Supreme Court was not able to say: the indictment is refused because the Reich law which supports the indictment is contrary to international law. The Reich Supreme Court could do nothing but either to postpone the trial and to report to the Government so that perhaps changes would be made in time, but it was not even obliged to do that. It was obliged only if it did make a decision to decide in accordance with national law even if it was contrary to the international law.
That was the legal situation during the Weimar Republic.
THE PRESIDENT: That answers my question.
THE WITNESS: No?
THE PRESIDENT: It does, yes. The Reich Supreme Court would in proper cases lay down the rule that the lower court judge should enforce the German law even though it violated some principle of international law for which Germany as a State might be diplomatically held responsible, is that true?
THE WITNESS: No, that is not quite correct. I said that the Reich Supreme Court just the same as the other German courts in regard to this question did not have any doubts at all, and, therefore, it did not make any rules to which the lower courts had to comply. That was not necessary at all.
THE PRESIDENT: Then the lower courts themselves recognized this rule of which you speak that they must enforce the law of the State even though it violates a principle of international law?
THE WITNESS: Yes, and they only had to look at the Anschuetz commentary: that said so expressly.
Q Well, prior, at least prior to 1913, was there any tribunal other than the Court of the State which could punish the public officer or a judge, for making a decision which was contrary to international law, if it was made in compliance with the law of the State?
A No.
Q If the principle enunciated among other bodies by the first tribunal, the IMT Tribunal, namely, the principle of the penal responsibility of an individual officer for violations of international law, should be applied; then you have, do you not, a modification of your principle which you have stated with reference to the necessity that judges must obey the law of the state. In other words, if that principle of penal responsibility of the individual has become a part of international law, then the anomalous situation would arise where the officer, perhaps the judge, may have been required by his state law to make a decision, but may, nevertheless, be responsible if any tribunal has jurisdiction to try him, for a decision contrary to international law. Isn't that true?
A If I understood your question correctly, Your Honor, the general validity of the principles of the charter as international law could, in regard to judges of those states which require that their officials apply the law of the state as the final will, bring about tragic conflicts of conscience, for which, in my opinion, there is no indubitable legal solution at all. But, Mr. President, I do not know whether I quite understand your question correctly. It did not come through very well?
Q I do not think I will attempt to repeat it further. I understood your position. It is true, is it not that there was no tribunal in Germany, perhaps anywhere else, which had statutory jurisdiction to apply international law in a penal proceeding against a public officer of the state who had complied with the state law?
A Yes, that is correct.
Q Then, if there were a tribunal that had jurisdiction to apply that law, might it not perhaps, arrive at a different decision, legally, from the decision which this court of the state itself, would arrive at, might not an international tribunal having jurisdiction to pass upon the question, arrive at a different answer as to criminality of an individual officer who had violated international law, but had not violated the law of the state?
A Yes, that would be so, but, Mr. President, if I may say so, that is the very thing which I call the tragic situation of the official concerned.
THE PRESIDENT: Our film is running out. We must take our recess.
(Thereupon a recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Redirect:
REDIRECT EXAMINATION
BY DR. SCHILF:
Q. I have a few more questions which have resulted from the cross-examination. I should like to start with the question which Judge Brand asked you. As far as I understand, the question concerned the problem as to whether a German Judge could be punished under penal law or by disciplinary action if he consciously applied international law and not the law of the state, when they were not consistent. May I ask you to explain your view to the Tribunal as to whether that possibility did exist under the Hitler Regime, during the Weimar Era, and during the Imperial Regime?
A. As far as I know that case did not in fact ever occur simply because in Germany every civil servant and every judge always knew that there was no doubt that in the case of an inconsistency between the Reich law and international law, the law of the Reich had to be applied. But if you put that question to me hypothethically, I can say that the Imperial Era and during the Weimar Republic and under Hitler, we did have an institution to the effect that the judge on account of conscious misapplication of the law could be called to account in particular for defeating the law if those conditions existed. I do not know of any case of that kind, but if it should have occurred, what a judge should have deviated from that basic principle which applied in Germany, and if in the case of collision he were to have applied international law instead of the law of the Reich; and if he had done so intentionally, he would be guilty of a mis-application of the law.
However, in order to avoid any misunderstanding, I would like to point out again that the machinery of the general transformation under Article IV was intended to afford a kind of savety valve for avoiding such collisions. But if they did occur, then the rule which I described, did apply.
I understood the President, and I hope I understood him correctly, that he meant to ask me what would happen before an international tribunal if a German judge were indicted because he applied the German law instead of international law in such case of collision. I understood that to mean that international Tribunal was under a charter which demanded that international law should have precedence over the law of the state. Then the case would arise, that one and the same person who had adhered to the principle of his state, would have acted correctly inside his state, would find from the point of view of international tribunal and its charter to have acted incorrectly and vice versa. Did I understand that correctly? That is what I called the tragic situation of that person. Whatever, he does ho acts incorrectly.
Q. Thank you, During the cross-examination by Mr. LaFollette, a problem arose concerning which I should like you to answer one more question. Mr. LaFollette referred to your plea and to your point of view, that in the case of every state there is a final authority which has to issue orders. He asked you and I hope I understood him correctly that the reaction if anybody violated those orders differed. In a democratic state, they are less violent than in a dictorial state where they are very violent.
I would like to ask you this: The duty of obedience which the citizen in general has toward this last higher authority is based only on threats of punishment or is it also based on ethical points of view? Is the duty of obedience enforced by threats of punishment or also by loyalty to the state or other considerations?
A It would be bad if obedience were based only on the fear of punishment. In my view, things are bad in that state where orders are, on principle, only obeyed because they are backed up by penal regulations. In Germany we agreed that the authority of the State, already in the Weimar era and even more so under the Hitler regime, was harmed by the fact that almost every new law and almost every new ordinance had, at the end, a provision of penal law. The obligation to respect the laws is without value unless, lastly, it has an ethical basis. And that, in fact, is the very reason why democratic constitutions, constitutions with division of power, in principle, are obeyed more easily than other constitutions, at any rate with modern people.
I am far removed from those theories which interpret democracy to mean that every citizen lays down the law for himself. I don't know whether there is a democracy under which the citizen who receives his tax assessment says, "Thank goodness; that is just exactly what I wanted." However, where the laws are given, or partly given by the people, directly or by representation, there the individual is, in principle, more friendly in his feelings towards the laws and considers it more his own affair. That, obviously, one cannot deny. And just because of that, counsel, normally speaking, the reaction to lack of obedience or to disobedience or to disobedience under such a constitution is more lenient and can be more lenient than under other constitutions.
Q Mr. LaFollette mentioned Josef Goebbels, and asked you -- and obviously that was a question concerning constitutional law -- whether before 1933 there was a government institution between which and the Ministry for Propaganda and Enlightenment of the People, created after 1933, a parallel could be drawn. As far as I remember, you said "no", and I wanted to ask you to give us your views as to whether before 1933 there were ministerial institutions, for example, for the information of the press, that is to say, press information offices, the government itself or of individual ministries. And I wanted to ask you whether there was a Reich Central Office for Heimatdienst, which, in its structure, not in its extent was something similar; at any rate, similar under administrative law and under constitutional law.
A I have to say that I know nothing about that. I have heard the word "Heimatdienst", "Reich Central Office for Heimadienst", and I believe that once or twice, or on occasion, I received information leaflets. But that some government institution should have existed which one could compare with some official piece of machinery, I didn't know about that; I never heard about that.
Q Thank you. Now the next question. Mr. LaFollette asked you whether, before 1933, you had any experience similar to the SA. You said, in your answer, that the Reichsbanner had existed in those days. I want to ask you whether in those years, around 1930, there was not also a Communist Fighter's League, which called itself The Red Front or the League of Red Front Fighters; and did not that League get itself involved in political arguments, and political arguments with force, with tho SA?
I do not want to ask you about the extent, and I do not want to ask you which side had the greater power or force and push; I only want to say that there were institutions which were, if necessary, prepared to protect their party by force.
A I can only say that I do know about the existence of the Stahlhelm, the leadership of which did interfere in the great change of government. I know of the Reichsbanner; I also know that my students in Leipzig told me again and again about beer hall fights. I thought they were speaking of the Communists. Sometimes they had their heads knocked about, and sometimes there were gaps in the ranks of my audience in '30 and '37 in Leipzig for those reasons. However, more than that I cannot say.
Q That is sufficient; thank you very much. Mr. LaFollette, furthermore, put to you a document in extract which has been submitted to the Tribunal here. This was a quotation from Boebbels in 1935. You said that you had not read or known of that book by Boebbels.
In 1935, that is to say, after the so-called seizure of power, Goebbels said something like this: "We came to power legally in order to apply it illegally."
What I want to ask you is this. How did Hitler himself, before 1933 -- that is to say, before the seizure of power -- represent his aims before the public and repeatedly even before a tribunal, under oath, with reference to the legality of his intentions?
AAll I know is -- and I know this because about the time when Hitler said that as a witness before the Supreme Reich Court, I happened to be in the Reich Court Building for other reasons -- that in the trial, I believe, against the Reichswehr officer of ULM, and I don't remember the year for certain, he said he would assume power through legal channels. However, I have a feeling, an idea, but I only remember it vaguely as if at the same time he said the words that heads would roll. That does not sound very legal, but when you speak under oath, you are not to keep anything secret.
Q Well, I only put it to you because the prosecution put that Goebbels text to you, and I wanted to hear your personal experience as to whether you had heard different words of Hitler's prior to 1933 to the effect that he always intended to achieve his aim legally and perhaps planned a legal revolution.
My last question refers to the military order. Under crossexamination you referred to paragraph 46 of the Military Penal Code, and I would like to ask you whether the statement you made, changes anything in your statements of this morning and yesterday concerning the obligation and applicability of the Hitler Decree in relation to all Germans after 1933.
A No; that would be a misunderstanding. I said expressly that Hitler's orders cannot be compared with the orders of any other functionary, only Hitler's orders were suprema lex, beyond which there was no appeal; all of them were. As the situation was, Paragraph 47 of the Military Penal Code could not be applied at all to an order by Hitler as the supreme military commander.
That falls into an entirely different sphere. I believe one must realize and one must accustom oneself to the fact that the system under Hitler certainly was a bad one, perhaps an inhuman one, from a certain point of view, but that in itself it was a system, a structure of order. There arc certain things which may be completely conunderstandable from any other point of view as a system, but that does not change the fact that that particular system was like that, and in some way it must have merited abolition.
DR. SCHILF: May it please the Court, I have no further questions.
MR. LA FOLLETTE: If Your Honors please, I simply wanted to ask maybe a question that would go to the character of DR. Jahrreis' remarks before the IMT, which, in turn, go to the character of whether it was the statement of counsel or whether it is technically evidence.
RECROSS EXAMINATION BY MR. LA FOLLETTE:Q; As I gathered, you were not under oath, were you, Doctor?
A: No, not as defense counsel.
Q: Yes. Then I ask the court -- I think it is available for the court to read without being offered as evidence. It is an argument of counsel just as the argument of all other counsel were, and Is shall not offer it as an exhibit. I have no further questions. I beg your pardon -
A: Concerning that question may I say something? My plea before the International Military Tribunal appears, just as all the other pleas by the defense counsel, in the official collection, and I believe it can be submitted as judicial notice.
MR. LA FOLLETTE: Yes, exactly. And without the formality of including it in here for the benefit, I think, of the Tribunal, which is equally the benefit of defense counsel, I ask that we join in asking the Court to take judicial notice of it, if that meets with your approval.
DR. SCHILF: May it please the Court, concerning this question as to whether a plea can be taken judicial notice of, as far as I remember a. decision by the Tribunal has already been made on that, not concerning a plea, but concerning a plea, but concerning the testimony by a witness in the transcript. At that time the Tribunal refused to take judicial notice of a passage from the IMT transcript. Therefore we are confronted with the same problem as at that time, only with the difference that at the time the Tribunal refused to take judicial notice of testimony of a witness from the IMT transcript, whereas now they will do so concerning Jahrreis' statement.
Therefore I do not at the moment wish to take a statement as to whether it is technically possible at all to submit statements for judicial notice. I personally have nothing against it. I personally would welcome it.
THE PRESIDENT: The taking of judicial notice involves the indulging by the Tribunal with the presumption that the things which we judicially notice are of common knowledge and are true. I think there is quite a clear distinction here. The Tribunal reserves the right to read learned treatises by anyone whom it considers learned in order to advise itself, whether it is done as judicial notice or not. And I think we may say that we recognize that Dr. Jahrreis is a learned gentleman. I don't think we need to pass on the question of judicial notice at all.
MR. LA FOLLETTE: That is perfectly satisfactory with me, Your Honor. Now, if I may, Dr. Marx -- the witness may be excused.
JUDGE BLAIR: No, I want to ask him a question.
MR. LA FOLLETTE: I beg your pardon.
BY JUDGE BLAIR:
Q: Doctor, You have given a very clear analysis of the ordinary form of international law coming up in the international intercourse between nations and citizens of nations, but none of it duals with war. I understand your testimony here this afternoon. None of it dealt with war. We are sitting here as an international tribunal, military tribunal, to try those whom the indictment charges with having committed war crimes. We are still at war. No peace has yet been established. Under those circumstances international law of war authorizes the setting up of this sort of Tribunal for the purpose of trying those who are charged with having committed war crimes in violation of war and the rules of international war. Is that true? Is that the Tribunal that we are here far today?