In this state order the German Reich was treated as a partner by the other states, throughout the whole field of politics. In this connection I do not wish to stress the form—so impressive to the German people and so fatal to all opposition—which this treatment took in 1936 at the Olympic Games, a show which Hitler could not order the delegations of foreign nations to attend, as he ordered Germans to the Nuremberg Party Rally with its state displays. Rather would I wish to point out that the governments of the greatest nations in the world considered the word of this “all-powerful” man to be the final decision, incontestably valid for every German, and based their decisions on major questions on the very fact that Hitler’s order was incontestable. To mention only the most striking cases, this fact was relied upon when the British Prime Minister, Mr. Neville Chamberlain, after the Munich Conference, displayed the famous peace paper when he landed at Croydon. This fact was pointed to when people went to war against the Reich as the barbaric despotism of this one man.
No political system has yet pleased all people who live under it or who feel its effects abroad. The German political system in the Hitler era displeased a particularly large and ever-increasing number of people at home and abroad. But that does not in any way alter the fact that it existed. Its existence was in part due to the recognition from abroad and to its effectiveness, which caused a British Prime Minister to make the now world-famous statement at a critical period, that democracies need two years longer than totalitarian governments to attain a certain goal. Only one who has lived in the outer cold and as though outcast among his own people amidst blindly believing masses, who idolized this man as infallible, can tell how firmly Hitler’s power was anchored in the nameless and numberless following who held him capable of doing only what was good and right. They did not know him personally; he was for them what propaganda made of him, and this he was so uncompromisingly that everybody who saw him from close range and summed him up differently clearly realized that opposition was utterly pointless and, in the eyes of other people, did not even represent martyrdom.
Would it therefore not be a self-contradictory process if both the following assertions were to be applied at the same time in the rules governing this Trial? First, the Reich was the expression of the despotism of this one man and for that very reason a danger to the world. Secondly, every functionary had the right—in fact the duty—to examine the orders of this man and to obey or not obey them, according to the result of this examination.
The functionaries had neither the right nor the duty to examine the orders of the monocrat to determine their legality. For them these orders could never be illegal at all, with a single exception which will be discussed later—an exception which, when carefully examined, will be seen to be only an apparent one—namely, with the exception of those cases in which the monocrat placed himself, according to the indisputable axioms of our times, outside every human order and in which a genuine question of right or wrong did not arise, so that no genuine examination was called for, either.
Hitler’s will was the final authority for their considerations on what to do and what not to do. The Führer’s order cut off every discussion. Thus a person who as a functionary of the hierarchy invokes an order by the Führer is not trying to claim exemption from punishment for an illegal action but opposes the assertion that his conduct was illegal; for it is his contention that the order with which he complied was legally unassailable.
Only a person with full comprehension of this can have a conception of the hard inner struggles which so many German officials had to fight out in these years in the face of many a decree or resolution of Hitler’s. For them such cases were not a question or a conflict between right and wrong; disputes about legality sank into insignificance. For them the problem was one of legitimacy; as time went on, human and divine law opposed each other ever more strongly and frequently.
Whatever the Charter means by the orders which it rejects as grounds for exemption from punishment, can this be meant to apply to the Führer’s orders? Can they come within the meaning of this rule? Must one not accept this order for what it was according to the interior German constitution as it had grown, a constitution explicitly or implicitly recognized by the community of states? Many Germans disapproved of Hitler’s position of power from the very beginning; and to many Germans, who welcomed it at first because they yearned for clear and quick decisions, it later became repugnant. But that in no way affects the following: Must not those people who did their duty in the hierarchy, willingly or unwillingly, in accordance with the constitution, feel that an injustice is being done to them if they were sentenced because of a deed or an omission which was ordered by the Führer?
A community of states might refuse to accept or tolerate as members such states as have a despotic constitution. Yet up to now this has never been the case. If it is to be different in the future, the nondespotic powers must take the necessary steps to prevent any member of the family of states turning into a despotic power and to prevent any despotic power from entering the family circle from outside. Today people are realizing more and more clearly that this is the crux of our question. The circumstances must be very special ones if a modern people is to let itself be governed despotically, even when as well-disciplined as the German people. But wherever such circumstances do exist, no domestic countermeasures are of avail. In that eventuality only the outside world can help. If, instead, the outside world prefers to recognize this constitution, it is impossible to see where successful domestic resistance can spring from. In pointing to these special circumstances and to the recognition by the outside world, we are drawing attention to facts for the existence of which, to take our case, no German was responsible but which cannot be ignored when the question is asked how all this was possible.
Attention must also be drawn to certain further facts without knowledge of which one cannot fully grasp the fact that Hitler’s absolute monocracy was able to establish such a terribly firm hold. Hitler combined in his person all the powers of issuing legislative and administrative orders of a supreme character, orders which could not be questioned and were absolutely valid; but immediately below him the power of the state was divided up into a vast mass of spheres of competence. The dividing lines between these spheres, however, were not always sharply drawn. In a modern state, particularly in major states of our technical era, this cannot be avoided. The tendency to exaggerate questions of competency is certainly no less marked in Germany than in any other country. This certainly facilitated the erection of barriers between the departments. Every department was jealously watching to see that no other trespassed into its field. Everywhere it was prepared for tendencies of other departments toward expansion. Considering the great mass of tasks which the so-called “totalitarian” state had heaped upon itself, cases where two or three departments were competent for the same matter could not be avoided. Conflicts between departments were inevitable. If a conspiracy existed, as the Indictment assumes, the conspirators were remarkably incompetent organizers. Instead of co-operating and going through thick and thin together, they fought one another. Instead of a conspiracy we would seem to have had more of a “dispiracy.” The history of the jealousy and mistrust among the powerful figures under Hitler has still to be written. Now let us remember that in the relations between all departments and within each department, people surrounded themselves with ever-increasing secrecy; between departments and within each department, between ranks and within the various ranks, more and more matters were classed as “secret.” Never before has there been so much “public life,” that is, nonprivate life in Germany as under Hitler; and also never before was public life so screened off from the people, particularly from the individual members of the hierarchy themselves, as under Hitler.
The single supreme will became, quite simply, technically indispensable. It became the mechanical connecting link for the whole. A functionary who met with objections or even resistance to one of his orders on the part of other functionaries only needed to refer to an order by the Führer to get his way. For this reason many, very many, among those Germans who felt Hitler’s regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety to the time when this man would disappear from the scene. For what would happen when this connecting link disappeared? It was a vicious circle.