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?
You haven't testified concerning that character of Tribunal.
A.- I am very sorry, but that question did not become very clear.
Q.- We are not sitting here as some sort of a Tribunal to try the ordinary questions of international law that might arise, and I understand that your testimony related to those things and not to questions of war and international law involving war. That is correct, is it not? You have not undertaken to say here that the successful belligerant might not set up a Tribunal to try those whom it charges with violating the international rules of warfare.
A.- With the question as to whether during the continuance of the war international military courts may be established for the judgment of violation of international law, I have not dealt with. That question was never put to me.
Q.- I was just wanting to point out that what we are sitting here for is for the purpose of enforcing this kind of law and not the law about which you have been testifying, or the difficulties about the law for which you have been testifying and I recognize the very serious difficulties that you have testified to about international law and punishing some one or having some one to enforce international law without a Tribunal set up to do so.
A.- Yes, naturally.
Q.- But we are dealing here with some one who is charged with violating the rules of war, and that alone.
A.- The questions which have been put to me concerned the legal situation of these days, that is to say, under the Weimar Constitution and under the Hitler government, not the legal conditions which apply now for the Tribunal here. It might be that, for example, this Tribunal must judge under a law which was created ex post facto. But even if this is not the case, and I indicated that before, it can happen that the same legal question, according as to whether it is dealt with before a national court or an international court can be given a different answer, but both courts are right because they work on a different basis.
That is why I said in the theory of law again and again we confront the phenomenon that we judge a legal case objectively, and in practice we meet the case where the judge has a difinite starting point fixed for him, and one cannot say that one is right and the other is wrong. There are various possibilities of order.
Q I understand that. This same sort of Tribunal was set up after the other world war. But under this international rule the successful belligerent may try the, or Germany could have tried them. Germany did try them after the peace agreement under an agreement after the other World War, and we are sitting here as an international, or as a military, tribunal of a successful belligerant, trying those whom we charge with having violated the international rules of warfare, which is not the ordinary form that you testified to or the difficulties of the ordinary form that you testified to about enforcing of international law arising between the peaceful nations, which is all you testified to, as I understand it.
A Yes.
THE PRESIDENT: The witness is excused.
MR. LA FOLLETTE: If your Honors please, with Dr. Marz' consent I will briefly refer to a stipulation which we have reached which has been prepared in six copies in English and six copies in German. We have reached an agreement as to the naming of counsel - I mean of the medical examiners. Two have been named by the prosecution staff and two by Dr. Marz. They are to begin, if possible, on the 27th of June 1947, and to make a report of their findings on or about the 3rd of July 1947. I think it is quite pertinent that I read the paragraph one of the stipulation, because it clearly states what Dr. Marx and I agreed upon, that the Prosecution will submit the name of one medical and one psychiatric doctor to the Tribunal for approval."
I really want to read actually paragraph 2, that "this committee of four experts will examine the defendant Engert, consult the attending physicians concerning his condition beginning on or about 27 June 1947, and make a report of their findings to the Tribunal on or about 3 July 1947." There is attached to the stipulation an order appointing the persons named by counsel and directing then to submit a report of their findings.
I think it would be orderly but I also ask that the Tribunal exercise it because we were advised by the Army that the two Army officers we have named, the Army would be perfectly willing to have serve, but that they can't serve on a committee. Someone seems to think that this was without the order of the Commanding General of the area. I don't know what that means. I know the prosecution can't get it done; but it occurred to me that if the Court duly appointed them, then perhaps the Commanding General of the area will let them serve. I can't get it done. We can submit the order as a request, of course.
DR. MARX: Your Honor, the two experts whose names I have given are one psychiatrist, Oberarzt Dr. Gerstecker, and one woman physician who is to work on the physiological aspect and to give an expert opinion on that. The two doctors are available in Nurnberg without any difficulty. They are in the Municipal Hospital in Nurnberg. Oberarzt Dr. Gerstecker is at the Neurological Ward and Oberarzt Dr. Kretzer, the woman doctor, is in the Internal Ward. Unfortunately, a misprint has occurred. The name should read Kretzer and not Strecker.
THE PRESIDENT: That is the way it reads on the original.
MR. LAFOLLETTE: Does the order read the same as in the body? We think the mistake is in the order.
THE PRESIDENT: The order reads Kretzer.
MR. LAFOLLETTE: In the English copy it's correct.
DR. MARX: That is all right. Thank you.
MR. LAFOLLETTE: I will send up the original also of this, Your Honor, and may I have a copy of the German for Dr. Marx.
THE PRESIDENT: Are you ready for a ruling?
MR. LAFOLLETTE: Yes, sir.
THE PRESIDENT: The stipulation will be approved and filed with the Secretary-General and the order, as submitted, is made. It will be signed.
MR. LAFOLLETTE: Thank you, Your Honor.
THE PRESIDENT: You're not asking me to sign the German order?
MR. LAFOLLETTE: No, Your Honor, just to have it for the record. That is all there is on that matter at this time.
THE PRESIDENT: You may call your second witness.
DR. KUBOSCHOK: As the second expert whom we have named for the general defense is not yet able to appear, We would ask to permit us to call him at a later date. Therefore, I am now beginning with my submission of evidence for the Schlegelberger case. First of all, I intend to call the defendant Schlegelberger himself to the witness stand, and I would ask you to permit me to do so.
FRANZ SCHLEGELBERGER, a witness, took the stand and testified as follows:
JUDGE HARDING: 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 HARDING: You may be seated.
DIRECT EXAMINATION BY DR. KUBOSCHOK:
Q. Witness, what is your career, your professional career in particular?
A. I was born in 1875. After I had finished my legal studies and had passed my doctor's examination, I became Judge in the first and second instance. In 1904 I became Judge of the Lueck District Court in East Prussia. In 1909 I became assistant at the Prussian Court of Appeals, Kammergericht. In 1914 I became Kammergerichtsrat. The Kammergericht is the Court of Appeals of Berlin, the Supreme Court of Prussia.
At the Kammergericht, I worked in several senates: in the civil senate which dealt with the ordinary cases of civil law; in the commercial senate; in the replacement senate, and in the senate for voluntary jurisdiction. During that period I wrote my first scientific works in that field which dealt with the experiences I have made in practice.
In 1918, that is to say at the end of the First World War, I became assistant at the then Reich Justice Office which later on became the Reich Ministry of Justice. That agency had very little to do with administrative tasks. At that time, it only dealt with one court. It was the highest court, in fact the Reich Supreme Court in Leipzig. Apart from that, the Reich Justice Office only dealt with legislative tasks.
As an assistant, I was put in charge of legislative preparative work in the field of commercial and economic law, and I continued to do that work when after a few months I became Geheimer Regierungsrat and Vortragender Rat at the Reich Justice Office. When in 1927 I became Ministerial director, I still continued to deal with the same tasks. In 1931, the only under Secretary of the Reich Justice office, Dr. Joel, an old gentleman -- not to be confused with the defendant Joel -- was appointed Minister, and I took his position as Under-Secretary. I retained that position when in 1932 the Bruening cabinet was replaced by the Papen cabinet, and when Guertner, who had previously been Minister of Justice of Bavaria became Reich Minister of Justice. Reich Minister Joel, as well as Reich Minister Guertner at that time dealt with penal matters themselves. I merely dealt with matters of civil law.
Only when in 1934 the Prussian Ministry of Justice was merged with the Reich Ministry of Justice, and now a vast number of administrative tasks were transferred to the Reich Ministry of Justice, then a new Under-Secretary position was created, and that for penal matters. The previous Under-Secretary of the former Prussian Ministry, Under-Secretary Freisler, obtained that post. That division of tasks in civila and penal matters remained in force when on the 27 January 1941 quite suddenly Reich Minister of Justice, Guertner, died, and I, as the most senior Under-Secretary, was placed in charge of the conduct of affairs.
I retained my civil cases and Freisler dealt with penal matters. I was placed in charge of the conduct of affairs of the Ministry as the Senior Under-Secretary. I was never appointed Deputy Minister of Justice, and I never had myself called so, because that was, of course, impossible. I only was in charge of the conduct of affairs.
This picture, that is to say, that I merely acted as a representative, but that I actually dealt with the same work which I had dealt with before, that became also outwardly apparent.
On purpose I never worked in the Minister's Office; I never moved into the Minister's home; and I drew the salary of an Under Secretary, not that of a Minister. On 20 August, 1942, at my own request, I resigned.
Q You have described your work as Undersecretary, and you have said that you worked largely in the sphere of civil law. Which were the most important tasks with which you dealt?
A In accordance with the work I had done before, and in accordance with my particular interests, I was given the task -
Q There is trouble with the sound system. I have been asked to repeat my last question. You have described your work as Under Secretary, and you have said that largely you dealt with questions of civil law. Which were the most important tasks with which you dealt?
A In accordance with the particular interest which I had always had in economic matters, and in accordance with the work I had done previously, I was allotted the task of cooperating during two particularly fateful years of the German Reich in the maintenance and support of the economic life of the country. It was the stabilization and maintenance of currency; that was in 1923 because of, and until the end of, the inflation, and later on in 1933 on the occasion of the economic collapse. The inflection period was followed by the establishment of the Rentenmark currency, a new currency which replaced the paper mark. The inflation was also followed by the ordinance at which I worked, under which businessmen had to draw up a balance in gold marks, and it was also followed by the tremendous task of remonetization legislation. The collapse of the banks necessitated many discussions and consultations, and ordinances as for instance concerning rates of interest. Later, I worked on the new law concerning drafts and checks, and I may quote as my special work the two big economic laws promulgated in 1937, the law on shares and the law on patents. When in 1942 I resigned from my office, a new law on companies with limited liability was just about to be issued. At that time the general reform of civil law had been started, not immediately by way of a new codification, but by individual laws.
When I left my office, the marriage law and the testament law were completed.
Q A part from your professional work as a judge, and later on as an official in the Ministry, did you ever engage in any scientific research work?
A I can wholeheartedly affirm that question. Immediately after I took my state examination, I started on my first big work, and the first book of mine, which appeared in 1904, was a treatise on the law of retention; it was a work of historical nature. At that time I intended to take on a university career, but nothing came of that, because my home university Koenigsberg did not create a new chair for commercial and economic law. But I could not give up my literary work, and ever since then that has occupied myself consistently, side by side with my official work. The special fields with which I dealt were economic law and voluntary jurisdiction, that is to say the law concerning the procedure in matters concerning family, hereditary, commercial law and document regulations. In 1923 I became honorary professor at the University of Berlin. Naturally, I followed that call while retaining my official position, and I held lectures at the University of Berlin until the outbreak of the war. In 1925 the University of Koenigsberg conferred upon me an honorary doctor's degree of Political Science.
Q Did you also deal with foreign law?
A Yes, foreign law too has occupied me intensively for a long time. Perhaps I may first mention one of my latest works, a large comparative encyclopedia, the "Mannual of Comparative Civil and Commercial Law." That book summarizes reports on civil and commercial law of all countries, written mostly by national experts and I may say the law of the United States is dealt with by Professor Atkinson of Kansas University. This my work which necessitated a tremendous amount of correspondence, brought me in touch with eminent jurists all over the world.
I have deepened those contacts since 1929, because I went abroad to hold lectures, and those trips were above all to give me an opportunity to observe the effect of the law, at least in some countries, actually on the spot. I did succeed in doing so in Argentina, in Chile, where I dealt especially with banking laws; I wrote an essay on that subject; and in Brazil where I became an honorary member of the Brazilian Lawyers' Association. I held lectures in Budapest, Madrid, Warsaw, Stockholm, Copenhagen. I should like to add that I am co-editor of the periodical "Foreign and International Private Law", a publication of the Kaiser-Wilhelm A Association; and, also co-editor of a publication on Scandinavian.
Law.
DR. KUBOSCHOK: During the examination of the defendant I intended to introduce documents. I have tried to have my document books completed by today, but I have not succeeded in doing so. I hope it will be possible by tomorrow. I would ask, if Your Honors please, to recess now.
THE PRESIDENT: We will take the recess at this time until tomorrow morning at 9:30.
(The Tribunal adjourned until 27 June, 1947, at 0930 hours.)