In the course of the second meeting, the minutes of which were submitted to the Tribunal under Number 1816-PS, Goebbels ultimately succeeded in imposing his radical demands; and the course taken by this meeting forced Funk to admit that the complete elimination of the Jews from German economic life could no longer be delayed for the simple reason that the circles in power had become far too fanatical. It became evident to Funk that legislative measures were necessary if the Jews were to be protected from further acts of terrorism, looting, and violence and if they were to get any reasonable compensation. During the Göring meeting of 12 November 1938, Funk repeatedly expressed his views again, as is shown by the records. It was due to the efforts made by the Defendant Funk, with the support of Göring, that Jewish businesses were reopened for the time being, that the whole procedure was taken out of the hands of the arbitrary local agencies and put on a legal basis throughout Germany, and finally that in order to gain time in which to carry out this action a definite date was set for its completion. Anyone who reads carefully the minutes of the Göring meeting of 12 November 1938 will, in spite of their incorrect and incomplete formulation, be able to find definite and repeated indications of Funk’s moderating influence; namely, his insistence—repeatedly mentioned in the minutes—on the reopening of Jewish stores, his proposal that the Jews be allowed to retain at least their securities, and finally his attitude to Heydrich’s demand that the Jews be placed in ghettos. The minutes of 12 November 1938 prove beyond doubt that it was Funk who opposed Heydrich’s proposal by saying: “We don’t need ghettos. Surely the Jews could move closer together among themselves. The existence of 3 million Jewish people among no less than 70 million Germans can be regulated without ghettos.” This is a literal quotation.
Funk therefore wanted to save the Jews at least from being interned in ghettos. It must be admitted that at that time Funk did not entirely succeed in securing recognition for his point of view, so that the proposal that the Jews should be allowed to retain their securities, for instance, was turned down, although Funk pointed out, as the minutes show, that to realize the Jewish securities would suddenly flood the German stock market with securities to the value of 500 million Reichsmark and would, therefore, have serious consequences for the German stock market. The decisive question in judging the Defendant Funk is not so much his success as the fact that he made an obvious effort to save for the Jews all that could be saved in the circumstances; and we must not lose sight of the fact that in all those measures Funk acted only in his capacity as Minister of Economics, that is, as an official who merely gave the order to execute a command which Göring as Delegate of the Four Year Plan had issued on the orders of Hitler. Funk found himself in exactly the same position of constraint, as, for example, the Reich Minister of Finance, Graf Schwerin von Krosigk, who at that time had to order the punitive levy of 1,000 million Reichsmark to be paid by the Jews, or the Reich Minister of Justice and the Reich Minister of the Interior, both of whom issued similar executive instructions in their respective spheres. The Tribunal must decide the difficult legal question of whether a state official whose government has been legally recognized by all the governments of the world is liable to legal punishment for putting into effect a law—and I emphasize the word “law”—passed in accordance with the legislative system of this state. This legal problem is entirely different from the other question, dealt with in the Charter and by the Prosecution, as to whether or not the fact that an official order was given by a superior can serve as an excuse. I might add here that I shall not discuss this legal question because I shall leave it to the other members of the Defense. I shall discuss only whether an official who puts into effect a law passed by the internationally recognized government of his country thereby becomes liable to punishment. That is an entirely different problem from the one dealt with by the Charter.
Gentlemen, since this has not been dealt with before, I have to state the following; I read at the bottom of Page 50: Our natural sense of justice fully approves that a citizen, an official, or even a soldier, cannot defend himself by reference to the official order given him by his superior if this order obviously implies an illegal act, and especially a crime; and if in the existing circumstances and in due consideration of all the accompanying facts, the subordinate realizes, or should realize, that the official order is contrary to the law.
If the latter condition exists, in other words, if the official order obviously constitutes a breach of the law, it may in general be fully approved that the subordinate is not accorded the right to refer to his superior’s official order as an excuse and to maintain that he was only carrying out that order. In that respect this stipulation of the Charter contains nothing essentially new, but only the confirmation and further development of legal principles which are recognized to a varying extent in the penal codes of most civilized nations today. A certain amount of precaution, however, seems to be indicated in this matter, for it should not be forgotten, on the other hand, that obedience to the orders of a superior—not obedience to the law, but to a superior—is, and must in future remain the foundation of every government in all nations if the orderly functioning of the state administrative apparatus is to be secured; and that it would be dangerous for the civil servant to decide for himself whether to keep his oath of allegiance.
But, Gentlemen, in our case something different is involved: We are dealing here with the obedience of the citizen and especially of the civil servant, such as Funk was at that time, to a national law, which was legally promulgated in accordance with the constitutional rules of this State. If we wish to find a just and correct answer to this complicated juridical question, which so far has not been treated in literature, it will be pertinent to disregard entirely conditions in Germany and the present Trial, and to ask ourselves what decision would be given in a case where a civil servant of a different country—not Germany—carried out a law. Let us assume for instance, that some foreign country embracing a minority promulgated, in accordance with its constitution, a law exiling from its territory all members of this minority, or confiscating for the benefit of the state the property of such inhabitants, or turning over to the state or partitioning among other citizens the large agricultural estates of such inhabitants. Let us assume that such a case exists and let us ask ourselves: Does the civil servant in this nation really commit a crime if he carries out this lawful order? Is it really the duty of the official charged with the execution of this law to refuse to obey the law and to declare that in his personal opinion the law concerned is a crime against humanity, or has he even the right to do so? In such a case, Gentlemen, would any state today grant its civil servants permission to examine whether the law proclaimed is contrary to the principles of humanity or to the fluctuating norms of international law? What state would tolerate the refusal of its civil servants for such a reason to execute a law already proclaimed?
Or another example: Let us assume that the laws of a nation decree that certain new weapons are to be introduced into the armed forces, or that more warships are to be built, or that some preparations have to be made for war. Should an individual civil servant really have the right to refuse the execution of the law, even perhaps to sabotage its execution, and then to say, by way of explanation, that in his personal opinion concerning international law it involved the preparation of an aggressive war, consequently an international crime?
The Tribunal will have to decide these legal problems. But Funk may point out in his own defense the fact that by reason of his entire ideology and background it was especially painful to him to issue these executive instructions, although he believed he was only doing his duty as a civil servant.
In this connection I wish to remind you of Funk’s circular of 6 February 1939 (Document 3498-PS, Trial Brief Funk, Page, 19), where he emphasizes to his officials that it was their duty to “insure that it was carried out in a correct manner in every respect” and where he already feels impelled to disclaim personal responsibility for these measures by expressly emphasizing: “How far and how rapidly the powers conferred by the Four Year Plan are to be exercised will depend on the instructions to be given by me in accordance with the directives of the Delegate for the Four Year Plan.” This special reference made by the Defendant Funk to the legal decrees of the Four Year Plan, which was authorized to promulgate laws, originated in the defendant’s desire to express formally and solemnly, and to establish for the future, the fact that in issuing the executive instructions in 1938 he was a victim of his obedience to the State, a victim of his loyalty to the laws of the State to which he had sworn allegiance.
Funk’s circular of 6 February 1939, already mentioned on Page 19 of the trial brief, clearly expresses the qualms of conscience which had gripped Funk in those days, although he had not incriminated himself—qualms which, during his interrogation by an American officer on 22 October 1945, led to his complete nervous collapse, so that Funk was unable to restrain his tears and told the interrogating officer: “Yes, I am guilty; I should have resigned at that time.”
These same qualms of conscience gripped the defendant throughout the entire Trial and are still haunting him; and we remember that in the session of 6 May 1946, when this point was discussed, Funk was so deeply shaken that he could hardly continue talking and finally declared here before you, Gentlemen, that at that moment he fully realized that this, meaning the atrocities of November 1938, was the starting point of the chain of events leading to those horrible and frightful things of which we have learned here, some of which he too had already heard of during his imprisonment, and which culminated in Auschwitz. He felt, as he said during his interrogation on 22 October 1945, “deep shame and heavy guilt,” and he still feels it today; but he had put the will of the State and the laws of the State above his own feelings and above the voice of conscience since he, as a civil servant, was tied by duty to the State. He felt these ties all the more strongly as these legal measures were particularly necessary for the protection of the Jews in order to save them from losing their rights completely, and from suffering further despotism and violence. These are the very words of the Defendant Funk; and they represent his actual feelings. Today Funk still feels that it was a terrible tragedy that he of all people was charged with these things—he who never during his entire life said a spiteful word against a Jew, but had wherever he could always worked for tolerance and equality for the Jews.