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der overstepping this line, have done? A terrible situation! The reply of Greek tragedy, the reply of Antigone in such a conflict, cannot be imposed. It would be Utopian to expect it, or even demand it, as a mass phenomenon.
Before we come to the special question of who in the Reich possessed the power of deciding about war and peace, a further word remains to be said about the forms which Hitler's orders assumed.
Hitler's orders are solely the decisions of this one man, whether they were given orally or in writing, and in the latter case, whether they were clothed in more or less ceremony.
There are some orders by Hitler which can be recognized as such immediately. They are called "Erlass" (Decree) like the Decree concerning the setting up of the Protectorate of Bohemia and Moravia of 16 March 1939, or "Verordnung" (order), like the order for the execution of the Four-Year Plan of 19 October 1936, or "Weisung" (Directive), like the strategic decisions, so often cited during this trial, or simply "Deschluss" (Decision) or "Anordnung" (Instruction); often they are signed in Hitler's name only; sometimes we find the signatures of one or more of the high or highest civil or military functionaries as well. But it would be fundamentally wrong to assume that this was a case of counter-signatures as they are understood in the modern democratic constitutional law of nations ruled constitutionally or by a parliament-of a counter-signature which makes the signatory responsible to a parliament or to a State Court of Law. Hitler's orders were his own orders and only his own orders. He was much too fanatical a champion of the one-doctrine, i.e. of the principle that every decision must be made by one-and-only-one-man, to consider anything else even possible, above all things in the case of his own decisions. We will leave his high opinion of himself entirely aside in this connection. Whatever the more or less decorative significance of such counter-signing may have been, there was never any doubt that the Fuehrer's orders represented only his own decision and no one else's.
Special attention must here be drawn to those laws which appeared as Reich Cabinet laws or Reichstag laws. Hitler's signing of a law of the Reich Cabinet represented the formal certification of a Cabinet decision. In actual fact, however, a stage was reached where the Reich Cabinet laws were also solely decisions by Hitler who had previously given some of his ministers the opportunity to state the opinion of their departments. And when Hitler signed a law which, according to its preamble, had been decreed by the Reichstag, this was again only a case of a formal certification. In reality, however, it was a decision by Hitler.
From November 1933 onwards at the latest, the German Reichstag was not a parliament but an assembly for the acclamation of Hitler's declarations or decisions. These scenes of legislation appeared to many people at home and abroad almost to be an attempt to make democratic forms of legislation ridiculous by caricaturing them; nobody-either at home or abroad-regarded them as proceedings during which an assembly of several hundred men arrived at a decision after consideration, speeches and counter-speeches.
There are, however, also orders by Hitler which are not signed by him, but which can immediately be recognized as his orders. They are drawn up by a Reich Minister or some other high functionary, who states in the introduction "The Fuehrer has ordered", "The Fuehrer has decreed". We have before us not an order by the signatory, but a report by the signatory on an order given orally by Hitler. The orders by Hitler as Supreme Commander-in-Chief of the Armed Forces were thus often clothed in the form of such a report.
Finally, there are orders by Hitler which can only be recognized as such by a member of the public if he possesses knowledge of the constitutional position. When the Supreme Command of the Armed Forces (the OKW) issues an order, it is always an order by Hitler. Hitler himself, together with his working staff, was the OKW. The power to issue OKW orders rested solely with Hitler.
By my explanations regarding the constitution of the Hitler Reich, I have already-so to speak by implication-dealt with the question as to who was responsible for the ultimate decisionsfor this state's decisions regarding questions of existence, especially for the decision about war and peace *
Kelsen said-in his great treatise of the year 1943, which I have already mentioned aboves0,-"probably the Fuehrer alone". We must say: Quite definitely alone.
Under the Weimar Constitution, the sole body responsible was the Reich legislature. Article 45 demands a Reich law for a declaration of war and for the conclusion of peace. And a Reich law could be passed only by the Reichstag or by a vote of the German people. Neither the Reich President, i.e., the Head of the State, nor the Reich Cabinet had the power. They might, at most, have created such circumstances by acts lying within their jurisdiction-possibly the Reich President as Commander-in-Chief of
so Kelsen, Collective and Individual Responsibility, p. 546, App. III, exhibit 57, passage (24) and (25).
the Armed Forces as to give the Reich legislature no option in
I have already shown how, in the course of a step by step transformation which 'laid particular emphasis on legal forms, Hitler replaced all the highest authorities of the Weimar period, and combined all the highest competences in his own person. orders were law.
The circumstances in a state may be such that the man who is legally solely competent for the decision about war and peace, has, in practice, no-or not the sole-authority. If, however, both the sole legal competence and the sole authority in actual practice have ever been coincidental in any state, such was the case in Hitler Germany. And if, in any question, Hitler ever even accepted the advice of a third party such was not the case in the question of war or peace. He was the arbiter of war and peace between the Reich and other nations.
In conclusion: Sentences against individuals for breach of the peace between States would be something completely new legally -something revolutionarily new. It makes no difference whether we view the matter from the point of view of the British or the French Chief Prosecutors.
Sentences against individuals for breach of the peace between states presupposes other laws than those in force when the actions laid before this Tribunal took place.
The Legal QUESTION OF GUILT-and I am here only concerned with that-IS THUS POSED IN ITS FULL COMPLEXITY. For not one of the defendants could have held even one of the two views of the legal world constitution on which the Chief Prosecutors base their arguments.
1. FINAL ARGUMENT by Dr. Otto Stahmer, Defense Counsel
May it please the Tribunal!
This Trial-which is of a historical and political importance, and a significance in shaping new laws, and which is of dimensions such as have not been known hitherto in the history of law-these proceedings which concern not only the defendants present in the court, but which are of the greatest importance to the German people are now passing into a new phase.
As is stated in Article 24h of the Charter, the defense has the floor.
The position of the defense in these proceedings is especially difficult; for there is an all too unequal distribution of strength between the prosecution and the defense.
Months before the start of the trial the prosecution with the aid of a huge staff of experienced coworkers was able to explore all the offices and archives in and outside Germany and to examine witnesses in all territories, so it was in a position to submit to the Tribunal a tremendous amount of documentary material.
The difficult position of the defense is further aggravated by the fact that in the Anglo-American procedure on which this trial is based there is a clause missing which is contained in the German criminal procedure according to which the prosecution is also bound to procure and submit evidence exonerating the accused.
[The President of the Tribunal, at this point, refuted the preceding statement and reminded Dr. Stahmer that almost all documents presented by the defense in this case had been procured by the prosecution.-Ed]
After reading of the Indictment, Reichmarshal Goering in reply to the question of the presiding judge as to whether he pleaded guilty or not guilty, declared: "Not guilty in the sense of the indictment."
This statement of the accused necessitates an examination of all the charges made by the prosecution.
The accused has of course already dealt with many questions, which are of considerable importance for his defense, during his personal examination. He expressed his opinion in detail with regard to political and military happenings and exhaustively described the motives for his actions, and the origin and course of events.
I am thankful to the high Tribunal for permitting the accused to portray matters in all their breadth, as he saw, felt, and experienced them for this, and only this direct personal portrayal can afford good insight into the personal attitude of the accused and