Last year during the first 4 months of the trial I experienced it, and those were the most difficult times of my entire life. I experienced and saw what terrible things happened under Hitler’s regime, and I have no way to express my horror and to describe this sufficiently in any language, but I believe that you will agree with me if I say that those are occurrences which are outside of legal discussion entirely, for, Mr. Prosecutor, even about injustice one can, if one is exact, speak with legal reasons only in cases where—excuse me—the injustice is within normal limits.
I myself was a criminal judge. One single murder frequently, in the court of assize, occupied our time for 2 to 3 weeks, and it was a terrible thing. Two murders by one person—that was horrifying. If someone had eight to ten murders on his conscience, then he was described as a mass murderer in the press of Europe, and people asked themselves whether this was something that could be handled by means of the penal code at all.
When, last year, in the courtroom of the big trial I listened to the witness, Hoess, of Auschwitz, when he answered the question of the prosecutor as to how many people he had killed, if I remember correctly, he answered he didn’t remember exactly whether two and a half or three million. At that time it was quite obvious to me that neither positively nor negatively this had anything to do anymore with legal considerations because, Mr. Prosecutor, no matter what a state regulates concerning the question of review of a law the state has to think of normal conditions. These occurrences and matters cannot be measured by any order of the world at all. Therefore, I believe that these things that happened in Germany behind a complicated system of secrecy, a system of mutual delimitation, and if then one adds the pressure of conscience of millions of people who felt themselves hemmed in between patriotism and hatred of the system, then the question which you put to me attains a very bitter human weight, and I can only say I don’t know any way out.
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Presiding Judge Brand: In order to better understand your views which you have ably expressed, I would like to ask you a few questions. I understand your view to be that judges were obliged to obey the law of their State of Germany even though in doing so they violated a principle of international law. That is a fair brief statement, is it not, of the matter?
Witness Jahrreiss: Yes. During the Weimar republic this was already uncontestedly applicable, and with the permission of the Tribunal, I read the commentary of Anschuetz to article 102.
Q. And you would apply the same principle after 1933, would you not?
A. After 1933? There was much less the question whether this was different than before.
Q. What court or tribunal ordinarily enforced the rule that judges must obey the law of their State under such circumstances? I assume the answer is obvious.
A. Excuse me. I didn’t understand your question, sir.