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The same picture of a dissolution of accepted values in the
international sphere is drawn by Smith[42].  He states that
since 1914 the sense of "human unity" and the idea of the
universal character of law have been lost. Civilization
generally is characterized by a state of "disintegration."
Up to the beginning of this century, hopes of mankind had
been based upon the belief that, notwithstanding the
differences of religion and civilization, all men were
united in the belief in the essential principles of a
uniform law.  The unity of the world was consistent in this
common belief. This belief and this unity do not exist any

     "The schisms and the hatred which now divide mankind go
     far deeper than any of the divisions of the seventeenth
     century, and there is no longer any common standing of
     reference to which all disputants are willing to

Similar resigned statements have been made by the Swiss
scholar of international law, Max Huber.[44]

A most deplorable but convincing example of the absence of a
generally binding consensus in the sphere of "international
morality," is to be found in the "Universal Declaration of
Human Rights" which was adopted and promulgated by the
General Assembly on 10 December 1948. One might think that
in the question of basic human right no extraordinary
difficulties should arise in arriving at a legally binding
wording and at statutory expression on the basis of an
"ethical minimum" of all civilized nations; for the contents
of the rules to be framed are anyhow only the expression of
a legal situation accepted by civilized nations as a matter
of course as already existing. However, the very fact of the
necessity of a "declaration" shows already how erroneous
this assumption is. The fact that even in the question of
basic human rights no moral and legal consensus of the
community of nations can be found is most definitely
supported by the following circumstances:

(a) Eight nations abstained, on the occasion of the vote on
the Declaration.45 These abstentions cannot be explained by
the antagonism between East and West; for also Saudi Arabia
and South Africa abstained.[46]

(b) The Declaration, it is true, evoked emphatic positive
response. Thus, for instance, the Chairperson of the
Commission for Human Rights, Mrs. Roosevelt, praised the
Declaration "as to become the Magna Carta of all men
everywhere" and compared its adoption by the General
Assembly of the United Nations with the French Declaration
of Human Rights dated 26 August 1789;[47] other delegates
described the Declaration as an "epoch-making event." The
delegate of Paraguay even used the words "flaming force
which will lead all mankind towards felicity."[48] However,
the depressingly weak legal value of the Declaration is in
sharp contrast to these responses. Dwelling upon this
aspect, Schwarzenberger could not refrain from making the
following sarcastic remark: "There was only one other point
which was equally firmly asserted by the representatives of
the United Nations, and that was that the Declaration did
not impose any legal obligations whatever on any member
State."[49] The fact that only the absolute absence of legal
binding force enabled the adoption of the Universal
Declaration of Human Rights at all, throws a dim and
characteristic light upon the level of International
Morality.  Mrs. Eleanor Roosevelt, too, in her statement
which obviously is in contradiction to her first
enthusiastic praise of the Declaration - has "painfully
stressed"[50] this scant legal effect:

     "In giving our approval to the Declaration today, it is
     of primary importance that we keep clearly in mind the
     basic character of the document. It is not a treaty; it
     is not an international agreement. It is not, and does
     not purport to be, a statement of law or of legal
Schwarzenberger has a disillusioning and - according to his
own words - obvious explanation for the fact that the
"Universal Declaration of Human Rights" must remain an
"unsatisfactory" document owing to its total lack of legal
binding force; he calls the Declaration "an attempt to
square the circle."

     "In an international organization which is based on the
     principle of heterogeneous universality, it is
     impossible to find a positive common denominator for
     totalitarian, authoritarian and democratic States and
     for economics based on liberal, socialist and communist

In view of this weak basis of the substantial elements in
the idea of the State observing the rule of law, one cannot
but definitely approve Forsthoff's following statement:[53]

     "Therefore in the application of a Constitution for a
     State based on the rule of law, one will be well
     advised to rely, according to its nature, upon its
     technical contents and upon the rules defining the
     means of exercising power which are characteristic of
     that Constitution.
     If...the legal-technical structure of a Constitution
     respecting the rule of law can be successfully upheld,
     this structure will afford a more effective protection
     against the open commission of injustice than the
     reliance upon supra_positive ideas. Thus, for instance,
     it is doubtful whether the systematic killing of
     incurably insane persons would have been carried out if
     this measure had required the making of a ruling to be
     published in the Reichsgesetzblatt - instead of
     Hitler's strictly secret order[54] of 1 September

The most recent historical research has proved the
justification of this doubt. In a contribution made by Hans
Buchheim, a scientific collaborator at the Munich Institute
for Contemporary History - who had already distinguished
himself by various publications on the subject of the Third
Reich - on "Hitler as a Politician,"55 we find the following

     "Questions of constitutional law and of the structure
     of the administrative apparatus not only did not
     interest him (that is to say: Hitler), but he failed to
     understand that a modern state needed an organization
     based on certain formalistic principles, binding legal
     provisions and continuity in its administration. In his
     view, any law (even a law made under his own rule), any
     restriction of authority and bureaucratic procedure
     were rather only annoying restrictions of his arbitrary
     power in the exercise of the sovereignty of the state,
     or even restrictions maliciously invented by the legal
     profession. He did not want to replace the Weimar
     Constitution by his own, the constitutional laws by
     National-Socialist laws; but, as a matter of fact - he
     wanted to avoid anything by which he would bind himself
     and lose his tactical mobility. Thus, for instance, it
     is typical...that he did not put into force a new and
     complete National-Socialist Criminal Code, because, had
     the occasion arisen, he could not have disregarded it
     without ado, as he had done in regard to existing
     criminal law.  He refused to create the legal basis
     for the measures of euthanasia, as the ministries had

D: National-Socialism and "nulla poena sine lege"

The result just arrived at opens the way to an argument, the
convincing power of which cannot possibly be disregarded by
anybody, and least of all by an Israeli observer: the
ferocious opposition of National-Socialism to the formal and
legal-technical guarantees of the rule of law and,
therefore, to its elements to which, in its opinion, no
particularly great value ought to be attributed, and to
which - this ought to be remembered once again - belongs
also the rule "nulla poena sine lege," a rule which has been
the target of most resolute attacks by the National-
Socialist leadership.

I. A glance at the Reichsgesetzblatt (Official Gazette)
shows that the first encroachments of the NS-regime on the
existing constitutional system consisted in the abolition of
the formal guarantees of the liberal Constitution based upon
the rule of law, and not in the adoption of substantive
rules which could be described as materially unjust. Hardly
a month after the establishment of the regime had passed,
when it set out for its first and decisive attack. On 28
February 1933 the Regulations for the Protection of People
and State were adopted.[58]  These regulations - and not the
Enabling Law - must be considered as the true "Constitution"
of the National-Socialist State.[59]  The adoption of the
regulations constituted, in the first place, an infringement
of the principle of separation of powers, one of the most
important structural elements of a State based on the rule
of law. The formal basis of the regulations was art. 48(2)
of the Weimar Constitution which granted power to make
emergency regulations. Formally, the regulations were made
as emergency regulations of the President of the Reich; in
fact they were Hitler's handiwork. The "defence against
communist acts of violence calculated to endanger the state"
was held out to be the object of the regulations; but even
that was only a hypocritical circumlocution for a far wider
purpose. The regulations were made, issued and promulgated
on 28 February,  that is to say only half a day after the
Reichstag fire which had occurred in the evening hours of 27
February 1933, and the attempt was made to justify the issue
of the regulations as a reaction to that event. Already the
timing of the regulations shows that it had been prepared
well ahead.[60] These regulations abolished the most
important basic rights, and above all they repealed the
right of a person to be brought before a magistrate within
24 hours of his arrest.

Finally, the regulations - that is to say, the first
important act of the National-Socialist legislator -
included also the first attack upon the principle "nulla
poena sine lege." Art. 5 of the regulations provided for the
replacement of the penalty for the crime of arson -
imprisonment with hard labour - by the death penalty. In
order to remove any doubt as to the retrospective
application of this provision, Hitler made on 29 March 1933
- with a view to the trial concerning the Reichstag fire -
an additional regulation[61] which by its art. 2 expressly
provided for the retrospective application of art. 5 of the
Regulations dated 28 February 1933.

The "Law for the Removal of Distress Suffered by the People
and the Reich (Enabling Law)", dated 24 March 1933,[62]
definitely abolished the principle of separation of powers.

Even before this law had been enacted, a further principle
of the rule of law, namely the so-called "principle of
legality" had been disregarded in regulations made on 21
March 1933.[63] These regulations declared quite plainly
that the prosecution of "offences committed in the course of
the struggle for the national uprising of the German people,
in its preparation or in the course of its struggle for
German soil" were prohibited.

These examples show already that National Socialism
obviously considered the traditional formal institutions of
a State-based written rule of law to be the most serious
obstacle - and in their abolition the quickest and most
reliable way - to the establishment of a regime based on

II. The persecution of Jews by the National-Socialist regime
consisted to quite a considerable extent in the impairment
of the recourse to procedural rights by Jews which, under a
system based upon the rule of law, are at the disposal of
citizens for the defence of their rights. In this context
the draft bill ought to be mentioned by which the rights of
Jews to apply for legal relief in criminal proceedings were
to have been restricted.[64] The bill which had been
prepared and drawn up in all its details was not put in
force by the issue of regulations only because the question
had been settled by the enactment of Regulation No. 13 of 1
July  1943, made under the Nationality Law of the Reich,[65]
for art. 1 (1) of these regulations provided "that offences
committed by Jews shall be punished by the police." This
transfer of jurisdiction over Jews to the police excluded eo
ipso the right to apply for legal relief. At the same time,
however, this provision resulted in the violation of an
important principle of any State observing the rule of law:
the monopoly of the courts in judicial matters which, for
instance, today is expressly entrenched in art. 92 (1) of
the German Basic Law.

III. It cannot be described here in detail to what extent
National Socialism abolished the traditional elements and
formal guarantees of the rule of law.66  It will be
sufficient to mention here once again, and in short, certain
subjects: the abolition of the separation of powers;
restriction of judicial independence, or its abolition;
direct intervention of the executive in the administration
of justice (the Luftglass case); restriction of the power of
judicial review of the validity of statutes; ousting the
jurisdiction of the courts to a large extent; infringement
of the monopoly of the judiciary by establishing a separate
jurisdiction exercised by the SS; numerous provisions making
administrative decisions binding upon the judiciary.

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