Under the Weimar Constitution the sole body responsible was the Reich legislature, for 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, that is, 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 the Armed Forces—so as to give the Reich legislature no option in its decision; a problem which, as far as I know, became a tangible one in the United States with regard to the relationship of the President to Congress and was therefore seriously discussed, while it was never a tangible one for the Germany of the Weimar Constitution. If, however, the Reich legislature had by means of a law taken the decision to wage war, the Reich President and the whole State hierarchy, particularly the Armed Forces, would have been bound by this decision with no right of examination, let alone of objection, even if all the experts on international law in the world had regarded the law as contrary to international law. The Weimar democracy could not have tolerated, any more than any other nation, a state of affairs in which military leaders as such could examine the decision to wage war taken by the political leaders, in the sense that they could refuse obedience if they saw fit. The military means of power must remain at the disposal of the political leaders of a state. Otherwise they are not means of power at all. That has always been so. And it will have to be so all the more if the duty to give assistance against aggression is really to apply among the nations.
I have already shown how, in the course of a gradual transformation which laid particular emphasis on legal forms, Hitler replaced all the highest authorities of the Weimar period and combined all the highest competencies in his own person. His orders were law.
The circumstances in a state can be such that the man who is legally the only one competent for the decision on war and peace, may have, 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, then such was the case in Hitler Germany. And if, in any question, Hitler did ever go as far as to accept the advice of a third party, then that was certainly not the case in the question of war or peace. He was the arbiter of war and peace between the Reich and other nations—he alone.
I conclude: Sentences against individuals for breach of the peace between states would be something completely new under the aspect of law, 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 presuppose 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.
THE PRESIDENT: Dr. Sauter, could we take up the time between now and 1 o’clock in dealing with that letter, if you have it now? And possibly Dr. Exner also has his letter.
DR. SAUTER: The Defendant Walter Funk was questioned here as a witness under oath. After his examination, he told me that on one point his testimony was not quite correct; and he asked me to correct his testimony on this point, since he himself had no opportunity to do so. On 17 June 1946 I wrote the following letter to the President of the International Military Tribunal, which is signed by defendant’s counsel Dr. Sauter as well as by the Defendant Walter Funk personally. I shall read the text of the letter:
“Re: Penal case against Walter Funk; correction of the testimony.
“The Defendant Walter Funk in his cross-examination on 7 May said that he”—that is, Funk—“heard only through Vice President Puhl of a deposit of the SS at the Reichsbank. The witness, Emil Puhl, when he was examined, testified that it was Funk who had spoken with the Reichsführer SS Himmler and he”—that is, Puhl—“was then informed by Funk about the deposit to be set up. From the statements of the witness Emil Puhl the Defendant Funk reached the conclusion that, in fact, on this point, the statement of the witness Emil Puhl is correct; and after some consideration, the Defendant Funk believed that he could recall that it was he, Funk, to whom Reichsführer SS Himmler first applied concerning the establishment of a deposit for the SS and that he then informed Vice President Puhl about this matter.