The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 2
(Part 3 of 4)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
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 more.
"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 appeal."[43]
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 obligation."[51]
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 principles."[52]
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 1939."

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 statements:[56]
"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 demanded."[57]
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 violence

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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