I again stress the fact that an order by the Führer was binding—and indeed legally binding—on the person to whom it was given, even if the directive was contrary to international law or to other traditional values.
But was there really no limit? During the first period, at any rate, that is, just at the time when the foundations of power were being laid, at the time when the monocratic constitution was being developed step by step, Hitler’s followers among the people saw in their Führer a man close to the people, an unselfish, almost superhumanly intuitive and clear-thinking pilot and believed only the best of him; they had only one worry: Was he also choosing the right men for his assistants, and was he always aware of what they were doing? The tremendous power, the unlimited authority were vested in this Hitler. As in every state, this might include harsh orders. But it was never intended as giving full power to be inhuman. Here lies the boundary line; but this line has at no time and nowhere been quite clearly drawn. Today the German people are utterly torn in their opinions, feelings, and intentions; but they are probably in agreement on one thing, with very few exceptions: As accusers, they would not wish to draw this line with less severity than other people do toward their leaders. Beyond that line, Hitler’s order constituted no legal justification.
It must not be forgotten, however, that this line is not only vague by nature but also follows a different course in peace than in wartime, when so many values are changed and when men of all nations, especially in our days, take pride in deeds which would horrify them at any other time. And the decision to wage war does not in itself overstep that line, in spite of its tremendous consequences—not with any nation in the world.
Hitler himself, at any rate, did not recognize this boundary line of inhumanity, of nonhumanity, as a limit to obedience in his relations with his subordinates; and here again opposition would have been considered a crime worthy of death in the eyes and judgment of this man, invested as he was with limitless power and controlling an irresistible machine. What should a man who received an order exceeding the line have done? What a terrible situation! The reply given in Greek tragedy, the reply by Antigone in such a conflict cannot be imposed. It would show scant knowledge of the world to expect it, let alone demand it, as a mass phenomenon.
Before we come to the specific question of who in the Reich possessed the power of deciding on war and peace, one more 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), such as the decree concerning the institution 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 “Beschluss” (decision) or “Anordnung” (instructions). Often they are signed in Hitler’s name only; sometimes we find the signatures of one or more of the highest civil or military functionaries as well. But it would be fundamentally wrong to assume that this was a case of countersignature as understood in the modern democratic constitutional law of nations ruled constitutionally or by a parliament—of a countersignature 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-man doctrine, that is, of the principle that every decision must be made by one and only one man even to consider anything else, especially 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 countersigning may have been, there was never any doubt that the Führer’s orders represented nothing but his own decision.
Special attention must 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 merely 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 onward, at the latest, the German Reichstag was no longer a parliament but merely an assembly for the acclamation of Hitler’s declarations or decisions. These scenes of legislation appeared to many people at home and abroad to amount almost to 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 counterspeeches.
There exist, 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 Führer has ordered” or “the Führer has decreed.” This is 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 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 High Command of the Armed Forces (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—as it were by implication—dealt with the question as to who was responsible for the ultimate decisions, for this state’s decisions regarding fundamental questions of existence, especially for the decision about war and peace. Kelsen said—in his great treatise of the year 1943,[[57]] which I have already mentioned above—“probably the Führer alone.” We shall have to say: quite definitely alone.