International Law In The Third Reich

INTERNATIONAL LAW IN THE THIRD REICH By Detlev F. Vagts*

What justifies asking American readers to take time in 1990 to review German international law during the Third Reich, which ended in 1945? First, it is a dramatic story. People who hold certain views on international law are dismissed, exiled, imprisoned and even hanged. The penalties for disagreement are far more severe than tenured faculty members of the 1990s would even dream. Second, the peculiarities of the period enable one to develop some hypotheses about the interactions in the law among people, institutions, ideas and policies in a way that is starker and clearer than the path one must try to trace in calmer times when movements are more gradual and subtle. It is in a sense a not-to-be-repeated laboratory test of how far a ruthless regime can impose a radical change in thinking on a community of legal scholars. The very repulsiveness of some of the concepts enables one to distance oneself from them and regard them as objects of disinterested scrutiny. Finally, the period is widely ignored, even in Germany, in the literature on the history of international law and in many other subsequent studies that seem to demand some reference to events and writings of that time. Although a few highly useful works have appeared, mostly on limited aspects of the scene, the field is clearly understudied. I It is perhaps most strikingly so in

* Of the Board of Editors. Since this article is aimed at an English-speaking audience, I have cited works in English whenever they were comparable to sources in German and have referred to translations whenever available. Where no translator is named, the translation is my own. Very helpful research work was done for me by students: Brian Ganson, Greta Husemoller and Carlo Kostka. Important comments on earlier versions were made by Jost Delbriick, Karl Doehring, Jochen Frowein, Bardo Fassbender, Leo Gross, John Herz, Norbert Horn, Theodor Meron and Christian Tomuschat. Bardo Fassbender furnished both comments and quantities of materials not available here. The Harvard Law School library staff performed heroically in finding difficult sources. 1 After a half century, the most valuable work is still E. BRISTLER, DIE VOLKERRECHTSLEHRE DES NATIONALSOZIALISMUS (1938) (written in fact by John Herz, and in Geneva, not, as stated in the book, in Paris). This was done to protect the author's family, then still in Germany. See J. HERZ, VOM UBERLEBEN: WIEEIN WELTBILD ENTSTAND III (1984). Portions of the 1938 book were published as Herz, The National Socialist Doctrine of International Law and the Problems of International Organization, 54 POL. SCI. Q. 536 (1939); and Bolshevist and National Socialist Doctrines of International Law, 7 Soc. REs. 1 (1940) (with J. Florin). Just as this article was being completed, I was sent a copy of an anonymous piece, Nationalsozialismus und Viilkerrecht, in 6 DEUTSCHLAND-BERICHTE DER SOZIALDEMOKRATISCHEN PARTEI DEUTSCHLANDS (SOPADE) (1939); this was the voice of the Social Democratic Party in exile. A more recent discussion of German international law in this period, D. FISCHER, NATIONAL SOCIALIST GERMANY AND INTERNATIONAL LAW (1974), seeks to normalize Nazi treatment of international law , criticizing Bristler's "all to [sic] frequent degeneration into anti-National Socialist polemics" (p. 3), and retains some coherence only by firmly excluding from consideration everything published after 1939. A contemporary work in French was J. FOURNIER, LA CONCEPTION NATIONALESOCIALISTE DU DROIT DES GENS (1939). See also Preuss, La Conception raciale nationale socialiste du 661

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the work of those authors who since 1945 have not mentioned what they themselves wrote in the period 1933-1945. In general, the German legal community has only recently started to investigate what happened to law in that period. 2 It is my intention, then, to begin by sketching the general historical background, the foreign affairs of Germany during those 12 years, together with some reminder of the preceding Weimar times. I will then describe. the academic institutions and government agencies within which international law was practiced as of 1933. Next, I analyze the means through which Hitler's regime sought to change German international law. The following section attempts to account for the population of individuals who did the writing and thinking during those years, tracing the very divergent ways in which they reacted to these pressures. Finally, I analyze the rhetoric and argumentation deployed by academicians and government representatives in dealing with international law issues as they arose in those years. I. GERMANY'S INTERNATIONAL RELATIONS FROM 1933 TO 1945

Some Generalities Many people remember, think they remember, or have studied the events of the Nazi period. Yet it seems necessary to give a brief resume of those events which form the background to international law thinking during those years. 3 Before plunging into chronology, I will make a few useful general points, basically corrections of widely held misconceptions. droit international, 42 REVUE GENERALE DU DROIT INTERNATIONAL PUBLIC [RGDIP] 688 (1935); Gott, The National Socialist Theory of International Law, 32 AJIL 704 (1938). Three postwar German articles have looked at Nazi international law theory: Messerschmidt, Revision, Neue Ordnung, Krieg; Akz.ente der Vb1kerrechtswissenschaft in Deutschland 1933-1945, MILITARGESCHICHTLICHE MITTEILUNGEN, No.1, 1971, at 61; Paussmeyer, Die Grundlagen nationalsozialistischer Volkerrechtstheorie als ideologischer Rahmen filr die Geschichte des Instituts filr Auswiirtige Politik 1933-1945, in KOLONIALRECHTSWISSENSCHAFT, KRIEGSURSACHENFORSCHUNG INTERNATIONALE ANGELEGENHEITEN 115 (K. J. Gantzel ed. 1983) [hereinafter 1 Gantzel]; Diner, Rassistisches Vb1kerrecht: Elemente einer Nationalsozialistische Weltordnung, 37 VIERTELJAHRSHEFTE FUR ZEITGESCHICHTE 23 (1989). 2 The only recent sources on National Socialist law available in English are J. BENDERSKY, CARL SCHMITT, THEORIST FOR THE REICH (1983); Kaufmann, National Socialism and German jurisprudence from 1933 to 1945, 9 CARDOZO L. REV. 1629 (1988); and Reimann, National Socialist jurisprudence and Academic Continuity: A Comment on Professor Kaufmann's Article, id. at 1651. In 1990 a translation of I. MULLER, FURCHTBARE JURISTEN (1987) is due to appear. Some of the contemporary American work on Nazi law is still of value. See Loewenstein, Law in the Third Reich, 45 YALE L.J. 779 (1936), and the other sources cited in his The Law and the Legislative Process in Occupied Germany, 57 YALE LJ. 724,733 n.40 (1948). A striking example of omission of one's own works comes from FESTSCHRIFT FUR HERMANN JAHRREISS 503-08 (K. Carstens & H. Peters eds. 1964), which lists only one work during the Third Reich, omitting the author's most imperialistic studies, Wandel der Weltordnung, 21 ZEITSCHRIFT FUR OFFiNTLICHES RECHT [ZoR] 513 (1941), and Vb1kerrechtliche Grossraumordnung, 6 ZEITSCHRIFT DER AKADEMIE FUR DEUTSCHES RECHT 608 (1939). S For a chronicle of German foreign relations in this period, see G. WEINBERG, THE FOREIGN POLICY OF HITLER'S GERMANY: DIPLOMATIC REVOLUTION IN EUROPE, 1933-1936 (1970) [hereinafter 1 G. WEINBERG]; THE FOREIGN POLICY OF HITLER'S GERMANY: STARTING WORLD WAR 11,1937-1939 (1980) [hereinafter 2 G. WEINBERG].

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First, what happened between 1933 and 1945 was not inevitable. Inevitability is a construct forced upon actual happenings by retrospection. However much one may see deep forces pushing the current of events, those we here take account of were in fact peculiarly contingent. Had the Bavarian policeman who killed the man arm in arm with Hitler in the 1923 putsch aimed slightly to one side, these actions of the thirties would have been very different. Second, what happened was not predictable in any detail. Intelligent observers of the scene in, say, 1933 could, and did, anticipate that the Nazi program would be tempered, co-opted, by established conservative forces, though they should also have been apprehensive about the high level of risk introduced by Hitler's seizure of power. The actions and statements of our cast of characters must be understood in the light of this uncertainty. Third, the "system" of the Third Reich was in fact rather confused and unsystematic. The aura of German orderliness obscures this reality for many people. 4 While Hitler made the major decisions and was able to fuss with the placement of regiments on the map of Normandy, he was not in touch with the details of much that was happening.5 This disorder permeated the Reich's international relations, where the traditional bureaucracy of the Foreign Office was supplemented and duplicated by a National Socialist Party apparatus; other adventurers, ranging from personal friends of Adolf Hitler to the heads of such organizations as the Abwehr (Germany's Central Intelligence Agency), conducted foreign policy initiatives on their own. In the early stages, this overlapping was largely due to Hitler's need to proceed circumspectly in displacing the establishment; in later stages, it was due in part to his temperament, which favored rivalries among his subordinates, and to his inability to focus on all of the happenings in a high-paced period. Near the end, it had to do with his deteriorating mental and physical condition. These factors imply that there was some room for individuals to make moral decisions, to attempt to influence action for good or evil, at a level that was significant for human lives. Fourth, political relations with foreign states were important for the achievement of Hitler's goals, a consideration that is obscured by our recollections of Panzers rolling through the Ukraine or Stukas plunging from the skies over Dunkirk. Much of Hitler's success was achieved by diplomacy, by such classic techniques as dividing potential adversaries and establishing temporary alliances or commonalities of interest. Indeed, the military-power 4 K. BRACHER, THE GERMAN DICTATORSHIP: THE ORIGINS, STRUCTURE AND EFFECTS OF NATIONAL SOCIALISM 319-29 (J. Steinberg trans. 1970). There is a lively dispute about the degree to which Hitler was able to impose a consistent and systematic order on German affairs, as opposed to a rivalry of systems or, in the term the specialists use, "polycracy." See K. HILDEBRAND, THE THIRD REICH, ch. 4 (P. S. Falla trans. 1987); I. KERSHAW, THE NAZI DICTATORSHIP: PROBLEMS ANQ PERSPECTIVES OF INTERPRETATION, ch. 4 (2d ed. 1989). 5 As to overlapping functions in the foreign affairs field, see H. A. JACOBSEN, NATIONALSOZIALISTICHE AUSSENPOLITIK 1933-1938 (1968); I. KERSHAW, supra note 4, ch. 6. Of course, none of this puts into question Hitler's moral and legal responsibility for what happened in the Third Reich. Hitler occasionally involved himself in the details of controversies when internationa I law issues were at stake, as in the Jacob case with Switzerland. See sources cited in note 144 infra.

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relations between France and Germany alone were such that an armed confrontation before 1937 or 1938 would have ended disastrously for the Reich. 6 During the early years, Hitler spoke repeatedly of his desire for peace, of his determination to observe Germany's treaty commitments. 7 The German people, as reported by both the secret police and the exiled Social Democratic Party, dreaded war and went through great emotional crises every time Hitler took them to the brink-although they were tumultuously glad and proud when he brought them a whole series of triumphs in foreign policy.s Even when Germany entered the war in 1939, it needed allies and had an interest in keeping neutrals favorably disposed. These considerations do not negate the fact that it was often impossible to pursue German diplomatic goals consistently and intelligibly in the presence of the regime's perceived military and racial necessities. They do indicate, however, that there was a role for international law and, subsidiarily, one for international legal rhetoric. In particular, international law was regarded by the Reich as instrumental in neutralizing foreign public opinion, especially in Great Britain, so as to forestall drastic reactions. A Brief Chronology

We turn now to a more specific description of Germany's international affairs, starting with the major external issues that cast their shadow over the Reich in 1933. In a fundamental sense, they all derived from one set of documents, the Treaty of Versailles and the arrangements that accompanied and followed it. 9 Seldom has a nation been as obsessed by a treaty as was the Germany of the 1920s and 1930s-and, of course, the German international law community was particularly wrapped up in it. At the base of this furor was the question of war guilt, of Germany's responsibility for having started World War 1.10 Germany's forced concession of sole responsibility in Article 231 of the Treaty had in no way settled the question in the hearts and minds of the German people. Enormous quantities of scholarship were lavished on this issue by parliamentary commissions, publicists and academicians. Political parties took strong positions on the Treaty as a whole and the war guilt clause in particular; as a result, the Treaty became a grievous burden for all those who could be saddled with the onus of having accepted it 6 2 G. WEINBERG, supra note 3, at 151, analyzes the reality and perceptions of German military power in relation to other European states. 7 Hitler's speeches asserting Germany's peaceful intentions are collected in A. HITLER, DES FUHRERS KAMPF UM DEN WELTFRIEDEN (1936). 8 I. KERSHAW, THE "HITLER MYTH": IMAGE AND REALITY IN THE THIRD REICH 121-47 (1987); D. PEUKERT, INSIDE NAZI GERMANY: CONFORMITY, OPPOSITION AND RACISM IN EvERYDAY LIFE 61-68 (R. Daveson trans. 1987). 9 For thorough treatment of Versailles from a German point of view, see the articles under the caption "Versailler Frieden," in 3 WORTERBUCH DES VOLKERRECHTS UND DER DIPLOMATIE 36 (K. Strupp ed. 1929). 10 For a review of war guilt scholarship in the interwar period, see Wendt, Uber den geschichtswissenschaftlichen Umgang mit der Kriegsschuldfrage, in WISSENSCHAFTLICHE VERANTWORTUNG UND POLITISCHE MACHT 1 (K. J. Gantzel ed. 1986) [hereinafter 2 Gantzel]. A typical nationalist polemic of the time was A. VON WEGERER, REFUTATION OF THE VERSAILLES WAR GUILT THESIS (E. Zeydel trans. 1930).

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on Germany's behalf. The disarmament provisions were the next most specific and passionate focus, particularly in conjunction with the demilitarization of the Rhineland zone along the western frontier, a provision accepted by Germany in the Locarno pact of 1926 as the price for Allied evacuation of that region. II The rearrangement of Germany's frontiers in 1919 had caused a substantial number of persons whom Germans regarded as fellows to be placed under the sovereignty of other states; efforts to obtain guarantees for the minorities under foreign rule and to enforce the agreements so obtained were a major preoccupation of German international lawyers. 12 Internationa I lawyers of the 1990s still refer to the Chorzow Factory case, 13 which was in fact but one of many cases dealing with the rights of Germans to person and property vis-a.-vis Poland. Payment of the reparations obligations forced upon Germany focused various issues, not all of them belonging to public international law. 14 Finally, the new flowering of international institutions created to administer the Versailles settlement, including the Permanent Court of International Justice, furnished challenges for the Weimar generation of international lawyers-to which they responded in different ways.15 The Third Reich, then, inherited a complex of international law issues from its predecessor. It proceeded to undertake a series of further actions that drastically shifted the context of those questions, putting some to rest while creating new ones. In the early years, the National Socialist program in its external aspects centered on undoing the Versailles settlement. 16 Mounting a legalistic attack on the validity of that Treaty as a coerced, dictated and unlawful imposition, the new Government began to dismantle it. In installments, the Hitler regime proceeded to defy the disarmament provisions of Versailles and the subsequent treaty modifications of them, each of which was intended to give Germany some concessions in return for acceptance of the new arms limitations. 17 By plebiscite in 1935, it reintegrated the Saar into the fatherland. IS In 1936 Germany remilitarized the Rhineland despite II For contrasting views of Locarno, see K. STRUPP, DAS WERK VON LOCARNO: EINE VOLKERRECHTLICHE-POLITISCHE STUDIE (1926); LOCARNO, A COLLECTION OF DOCUMENTS (F. Berber ed. 1936) (with preface by Ribbentrop). 12 J. ROBINSON, DAS MINORITATENPROBLEM UND SEINE LITERATUR (1928), sums up the German learning on minorities during Weimar. 13 Factory at Chorzow (Ger. v. Pol.), 1926-1929 PCI] (ser. A) Nos. 7, 8, 9, 13, 17, 19. 14 Kruger, Das Reparationsproblem der Weimarer Republik inJragwiirdiger Sieht, 29 VIERTEL]AHRSHEFTE FUR ZEITGESCHICHTE 21 (1981). 15 W. SCHUCKING& H. WEHBERG, DIE SATZUNG DES VOLKERBUNDES (3ded. 1931); compare C. SCHMITT, DIE KERNFRAGE DES VOLKERBUNDES (1926). 16 Point 2 of the Nazi party program called for "equality of rights and the abolition of the Treaty of Versailles." For a thorough Nazi coverage, see Woermann, Das Diktat von Versailles, in NATIONALSOZIALISTICHES HANDBUCH FUR RECHT UND GESETZGEBUNG 143, 176 (H. Frank 2d ed. 1935) [hereinafter HANDBUCH). 17 Freyberg Eisenberg, Das deutseh-englisehe Flottenabkommen vom 18 Juni 1935, 6 ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT [ZAoRV) 1 (1937). 18 V. BRUNS, DIE VOLKSABSTIMMUNG 1M SAARGEBIET (1934); S. WAMBAUGH, THE SAAR PLEBISCITE (1940).

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the Versailles and Locarno pledges. 19 In 1938 Austria was incorporated into the Reich, a step that defied a Versailles/Trianon commitment explicated by a ruling of the Permanent Court. 20 The program of the Fuhrer to establish primacy in Europe, and perhaps in the rest of the world, was advanced by the assistance given to the Franco regime of Spain, in the face of charges of violation of the understandings about neutrality (1936-1939).21 It was further extended by the neutralization of Czechoslovakia and the annexation of Sudeten-German regions (1938),22 followed in 1939 by the coerced restructuring of Czechoslovakia, which created a state of Slovakia and a Protectorate of Bohemia and Moravia. 23 After achieving collaboration with the Soviet Union through a nonaggression pact in 1939,24 the Reich attacked Danzig and Poland, triggering the British and French commitments to defend that country and, therefore, World War II. For six years the war ravaged Europe, producing numerous international law issues. These ranged from the rights and obligations of neutral states, both on land and on sea, to the status of the countries that fell under German domination. The treatment of prisoners of different categories, the use of various types of weapons, the resort to reprisals-all were grist for the mills of the German international law community. By the summer of 1943, Germans capable of rational analysis knew that the war could not be won. OnJuly 20,1944, a small group of the German elite, including several international lawyers, attempted to kill Hitler and end the war.25 By late 1944, a few had looked far enough into the future to raise questions about the coming relationship of Germany to the United Nations-which was beginning to loom on the horizon and looked ominously like another League. 26 Thus, the period from 1933 to 1945 was full of changes on the international scene and provided a wide range of opportunities for lawyers to test their skills in justifying new initiatives.

19 Stauffenberg, Die Vorgeschichte des Locarnovertrages und das russischjranwsische Biindnis, 6 ZAoRV 215 (1937). 20 See Customs Regime between Germany and Austria, 1931 PCI] (ser. A/B) No. 41 (Advisory Opinion of Sept. 5). The importance that Hitler gave to this move is shown by the fact that Mein Kampfstarts by asserting that "[cjommon blood belongs in a common Reich"; quoted in Wright, The Legality of the Annexation of Austria by Germany, 38 AJIL 621,623 (1944). 21 N. PADELFORD, INTERNATIONAL LAW AND DIPLOMACY IN THE SPANISH CIVIL STRIFE (1939), reviewed by Scheuner, 9 ZAoRV 948 (1940). 22 For a contemporary Nazi view of Munich, see Wolgast, Uber die Bedeutung des Werkes von Miinchen vom 29 und 30. September 1938, 18 ZoR 415 (1939). 23 See Markus, Le Traiti germano-tchechoslovaque du 15 mars 1939 d la lumiire du droit international, 46 RGDIP 653 (1939); for a German attempt to square this action with .the Munich accord, see note 165 infra. 24 A. READ & D. FISHER, THE DEADLY EMBRACE: HITLER, STALIN AND THE NAZI-SOVIET PACT (1988). 25 A concise history of the July 20 attempt is P. HOFFMANN, THE GERMAN RESISTANCE TO HITLER (1988). 26 Bilfinger, Streit um das Viilkerrecht, 12 ZAoRV 1 (1944).

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THE INSTITUTIONS IN

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1933

The Universities

In 1933 there were 23 German universities. 27 Each of them was a state institution subject to the ministry of education of the state in question. Still, they had traditionally operated with a substantial degree of autonomy and self-government. As state institutions they were more of a piece than American universities and colleges. Before 1914 those citadels of higher education enjoyed an enormous reputation outside the country; German doctorates were sought by students of both the natural and the social sciences throughout the world. The years of Weimar had not succeeded in doing much to change the universities. They were authoritarian in structure, controlled by their tenured professors, and rigid in their instructional approaches. They had become rather shabbier, funds for education being tight. The students were impoverished and politicized, the bulk tending toward the right of the spectrum. German law faculties were more closely integrated into the universities than are American law schools. Their students did not necessarily obtain doctoral degrees before entering practice, but those who sought teaching positions had to. Thus, relations between senior and junior law faculty professors approximated the American arts and sciences model. Most of the general instruction was by lectures, although there were also exercises with problems drawn from practice. Seminars were reserved for advanced students on an academic track. Much of the instruction for practice was confided to lawyers outside the university who prepared students for the first state, i.e., bar, examination, who guided their mandatory clerkship experience, and who finally took them through the second state examination that led to admission to practice. The Institutes and Societies

Alongside the universities stood the institutes. Organizational separation of such research activities from the teaching-oriented institutions was well established in Germany when the "think tank" was still unknown in the United States. Three institutes were of particular importance to our story. The first, an institute in Kiel, dated from just before the First World War.28 The second belonged to the group of Kaiser Wilhelm Institutes, which had been founded as a shelter for the natural sciences that would free the cutting edge of useful research from the constrictions of academic personnel and 27 The state of German universities before Hitler is reviewed in F. RINGER, THE DECLINE OF THE GERMAN MANDARINS: THE GERMAN ACADEMIC COMMUNITY 1890-1933 (1969). On the seizure of power at the universities, see K. BRACHER, supra note 4, at 266-72; and for the experience at one university, B. VEZINA, DIE "GLEICHSCHALTUNG" DER UNIVERSITAT HEIDELBERG 1M ZUGE OER NATIONALSOZIALISTISCHEN MACHTERGREIFUNG (1982). On Cologne, see F. GOLCZEWSKI, KOLNER UNIVERSITATSLEHRER UND DER NATIONALSOZIALISMUS (1988). 28 E. DOHRING, GESCHICHTE DER JURISTISCHEN FAKULTAT 190-92, 222-23 (3 Geschichte der Christian-Albrechts-Universitat Kiel 1665-1965, 1965).

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other policies. In 1924 the Kaiser Wilhelm Institute for Public International Law was founded in Berlin;29 a major purpose of its founding was to equip Germany to struggle with the victors of Versailles in various international forums. Some of its leaders were also professors at the university in Berlin; they were backed by scientific assistants who did much of the research and writing. There was also a Kaiser Wilhelm Institute for Private International Law, with distinguished leaders. 30 Both institutes published journals and issued legal opinions to outside parties. Third, beginning in 1923, the Institute for Foreign Policy at the University of Hamburg united international lawyers with historians and other social scientists. 31 Its publications covered a wider range of subjects than those of the other two institutes, and being a new foundation and the creature of a leftish government, it attracted personnel who were politically leftist or liberal and less establishment oriented. In addition to the institutes, there was a German Society for International Law, which held annual meetings and published regular reports of its transactions from 1918 to 1933. The Government Lawyers

The German Government also employed international lawyers in connection with its work. As of 1933, there was only one department that holds our interest-the Foreign Ministrx. The legal division of the Foreign Ministry was headed by Friedrich Gaus, a career civil servant who had entered the Foreign Service in 1907. 32 His listing for the Nuremberg Tribunal of the treaties he had helped to draft is a roll call of the major landmarks of the diplomatic life of Weimar and the Reich. 33 International law functions were also assigned to lawyers within the Ministry of Justice, who dealt with such questions as extradition and treaties on private international law. 34 And there were already lawyers in the army, whose function would grow in importance. 35 International Institutions

During the Weimar period, German international lawyers became increasingly active in the international institutions that had developed as part of the 29 For the founder's own statement of the purposes of the institute and its journal, see Bruns, 1 ZAoRV, at iii (1929). See also Borchard, Death oj Dr. Viktor Bruns, 37 AJIL 658 (1943). 30 Rabel, Zur Einfuhrung, 1 ZEITSCHRIFT FUR AUSLANDISCHES UND INTERNATIONALES PRIV ATRECHT 1 (1927); Dolle, FunJundzwanzig Jahre Institut Jur auslandisches und internationales Privatrecht, 16 id. at 337 (1951). 31 The history of the Hamburg institute is detailed in 1 and 2 Gantzel, supra notes 1 and 10. The reader should know that my father, Alfred Vagts, was a member of that institute until 1933. 32 United States v. von Weizsaecker, 12 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10, at 1184 (1949) [hereinafter TRIALS OF WAR CRIMINALS]. 33/d. at 1184-85. 34 L. GRUCHMANN,JUSTIZ 1M DRITTEN REICH 1933-1940, at 1149, 1151, 1165, 1170 (1988). 35 See part VII infra.

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Versailles settlement. In 1930 Walther Schiicking was elected a judge of the Permanent Court of International Justice. 36 Viktor Bruns sat as an ad hoc judge for Germany or Danzig on several occasions. 37 German advocates argued for their fatherland on several occasions when Germany was a party to contentious matters before the Court. Germany participated in arbitrations to settle matters arising from World War I, for example with the United States. 38 A series of commissions were set up to deal with the minorities in the eastern neighbors of Germany, international waterways, the execution of the Dawes Plan, and other questions. 39 After Germany became a member of the League of Nations in 1926, its diplomats and lawyers took part in the League's activities. 40 Private international institutions also carried on the work of cultivating international law on a multinational basis. One of these was the Hague Academy of International Law, founded in conjunction with the CourtY From the start, German professors of international law were invited to give series of lectures-in French. 42 On the whole, those chosen from the German ranks were the older and more cosmopolitan scholars. Germans also participated in the Institut de Droit International and the International Law Association, again through establishment personalities. 43 Individuals In 1933 the heart of the German international law community was made up of 35 full professors or Ordinarien, possessing tenure and full rights of participation in faculty self-government (see Appendix A). One would count together with them assistant professors (Privatdozenten), who were aspiring to their chairs. When one adds the lawyers in the Foreign Ministry and the scholarly assistants in the institutes, one might come to a total of about 150 international lawyers. The standard German directory of scholars and writers listed 80 international law experts. 44 D. ACKER, WALTHERScaOCKING 1875-1935 (1970). The activities of Bruns are listed in his biographical notice to La Gour Pennanente de Justice Internationale, 62 RECUEIL DES COURS 547, 549 (1937 IV). 38 For a selection of the decisions of the American-German Mixed Claims Tribunal, with references to the literature, see 7 and 8 R. Int'l Arb. Awards (1956). 39 On minorities, see note 12 supra. On the waterways, see Auburtin, Die neue Rechtsstellung der Europiiischen Donaukommission, 9 ZAoRV 338 (1939). 40 Germans, however, were at a disadvantage in competing for League Secretariat jobs because their country did not enter the League until 1926, by which time many French and English bureaucrats were in place. See Kimmich, Germany and the League of Nations, in THE LEAGUE OF NATIONS IN RETROSPECT, PROCEEDINGS OF THE SYMPOSIUM ORGANIZED BY THE UNITED NATIONS LIBRARY 118, 122, 124 (1983). 41 For a history of the academy, see HAGUE ACADEMY OF INTERNATIONAL LAW, LIVRE jUBILAIRE,jUBILEEBoOK, 1923-1973 (R.J. Dupuy ed. 1973). 42 The first German lecturer was Triepel, Les Rapports entre le droit interne et le droit international, 1 RECUEIL DES COURS 73 (1923). 43 The INTERNATIONAL LAW ASSOCIATION, REPORT OF THE 38TH CONFERENCE HELD AT BUDAPEST, at cxlix (1934), reports that the "German Branch was seriously affected by the advent of the change of the regime and remained inactive for about a year." 44 KORSCHNERS DEUTSCHER GELEHRTEN-KALENDAR 3829-30 (4th ed. 1931). 36 37

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One can say several things about this population without being wrong in many cases. Like other German academicians, they were highly nationalistic individuals, their consciousness strongly formed by World War I. A large number of distinguished German professors had signed a manifesto in 1915 defending their fatherland's war aims. 45 Resentment over the Versailles settlement was coupled with disdain for the republic to which it gave birth. Some internationalists were Vernunftrepublikaner who accepted the new Government, without enthusiasm, as something that had to be worked with. 46 Some also accepted the institutions of Versailles and sought to work within them to defend Germany's interests. A very few were pacifists.4' By 1990s American standards, one would have to describe German faculty members as extraordinarily authoritarian in their personal relations. Tenured professors had paternalistic relations with their assistants, who worked their way toward promotion by such tasks as doing their professor's research, helping with his opinions, and administering his seminars. At its best, the role of "doctor-father" (Doktorvater) could be positive in making it easier for the aspiring junior to know what was expected; a good doctor-father could be very helpful in guiding ajunior's way to a chair elsewhere. Professors took little or no notice of other students. This paternalism prevailed in other relationships in German society, many of which reinforced each other -some of the professors had been army officers in the war and retained something of the military in their bearing.48 By and large, the German professoriate was highly conservative politically and weary of the confusion that the Weimar years had brought, the coups and general strikes, the constant turnover of cabinets and party alliances. An orderly and forceful state was what academicians wanted. They felt considerable financial stringency since the Government could not pay its civil servants well and, in particular, did not compensate them for the inflation that had eroded their salaries and savings. While hardly any of them were Nazis, senior faculty members were not unsympathetic to many of the ideas of Hitler and his party.49 As the nation seemed to be slipping into chaos, that sympathy, or at least resignation, became stronger. 45 K. BOHME, AUFRUFE UND REDEN DEUTSCHER PROFESSOREN 1M ERST EN WELTKRIEG (1975). 46 Kempski, Gefiihrdung der Wissenschaft durch die politische Macht: Refiexionen zum Schicksal der Wissenschaft im Dritten Reich, in 2 Gantzel, supra note 10, at 427. Academics' anger at Versailles was demonstrated by the refusal of Heidelberg to hear a talk by internationalist James Brown Scott, who had signed the Treaty for the United States. M. GUTZWILLER, SIEBZIG JAHRE JURISPRUDENZ: ERINNERUNGEN EINES NEUNZIGJAHRIGEN 96-97 (1978). 47 For a series of biographies of German pacifists, see C. RAJEWSKY & D. RIESENBERGER, WIDER DEN KRIEG, GROSSE PAZIFISTEN VON IMMANUEL KANT BIS HEINRICH BOLL (1987). See further note 182 infra. 48 Thus, Kaufmann served as an artillery officer and was severely wounded; this did not long save him from dismissal by the Nazis. Mosler, Erich Kaufmann zum Gediichtnis, 32 ZAoRV 235, 237-38 (1972). 49 There is general agreement on the rightist tendency of Ge~man faculties under Weimar. See, e.g., F. STERN, DREAMS AND DELUSIONS, ch. 6 (1987); Abendroth, Die deutschen Professoren und die Weimarer Republik, in HOCHSCHULE UND WISSENSCHAFT 1M DRITTEN REICH 11 (J. Troger ed. 1984).

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III. How NAZISM TOOK OVER

As was his wont with all other aspects of German life, Hitler determined to take over the world of German law, including international law . He had no particular regard or respect for law, lawyers or legal institutions, but he was determined not to let any significant aspect of life in Germany escape his control. 50 On the face of it, one might suppose that simply having absolute control over lawmaking would be enough. One could say to Germanjurists, "Here it is; it is positive law and must be obeyed." Nazi theorists understood that this was not enough, that hostile or indifferent lawyers could sabotage or slow their program by adhering to old precedents or by reading the new statutes restrictively. 51 Indeed, even a few positivists did so, notably the district attorney who found no legislative authority for the euthanasia program and started a criminal investigation. 52 In any case, positivism would not suffice for international law because it was impossible to assert that Germany alone could create a new international law. It was necessary to enroll German internationalists as advocates of National Socialist positions on the law of nations. Nazis approached the university with considerable disdain. A few of them, such as Propaganda Minister Goebbels, had doctorates and intellectual aspirations; but many were street fighters with no respect for academics. In a now-famous statement, Julius Streicher, the movement's leading anti-Semite, said, "If the brains of all university professors were put at one end of the scale and the brains of the FUhrer at the other, which end, do you think, would tip?"53 It was relatively easy to get control of universities and their law schools. They had always been state, not private, institutions and their autonomy had rested on the sufferance of the states. A simple means of taking away that autonomy was to revoke the right to elect university rectors and faculty deans. 54 The Government could then place cooperative professors, restyled Fiihrer, in those posts. The most notorious instance was the naming of the philosopher Martin Heidegger to the rectors hip at Freiburg, where his inaugural address was a clarion call for boundless submission to the regime. 55 Through these individuals, state ideological control could be introduced 50 For a sampling of Hitler's views about justice, see Hitler uber die Justiz-Das Tischgesprach vom 20 August 1942, 12 VIERTELJAHRSHEFTE FUR ZEITGESCHICHTE 86 (1964). 51 For careful studies of the relationships between positivism and National Socialism, see B. RUTHERS, DIE UNBEGRENZTE AUSLEGUNG (2d ed. 1973); and his ENTARTETES RECHT (1988). 52 The struggle within the German legal bureaucracy over whether to legalize the euthanasia action, to continue it with only the cover of Hitler's informal letter to the doctors in charge, or to stop it is described in L. GRUCHMANN, supra note 34, at 497-534. 53 Quoted in K. BRACHER, supra note 4, at 272. 54 Seier, Der Rektor als Fuhrer: Zur Hochschulpolitik des Reichserziehullgsministeriulns, 19341945,12 VIERTELJAHRSHEFTE FUR ZEITGESCHICHTE 105 (1964). 55 The career of Martin Heidegger has been the focus of new interest through the publication of V. FARIAS, HEIDEGGER AND NAZISM (1987). Several Nazi teachers of international law became rectors. See Walz, Der Rektor als Fuhrer der Universitat, 5 DEUTSCHES RECHT 6 (1935); Ritterbusch, Kieler Blatter 1815 ulld 1938, in GRUNDFRAGEN DER DEUTSCHEN UNIVERSITAT UND WISSENSCHAFT 27 (Reichsdozentenbund 1938).

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into the law faculties. Other means of control were at hand; denunciations by student agents and others were common. 56 Various kinds of censorship were introduced, including special clearance requirements for lectures to be given abroad. 57 Books were taken out of libraries and, in a wave of festive ceremonies, burned. 58 Lists of not-to-be-cited authors, including Jews, were promulgated, and sharp criticism was leveled at those who lapsed, whether by intention or accident. 59 With Germany's expansion, the universities of Austria were also brought under control, and later those of Prague and Strasbourg. 6o Meanwhile, the universities suffered, by the sheer decline in the number of students: on the one hand, Jewish students vanished and women students were discouraged; on the other hand, healthy males were drawn into labor service and the military.61 Intellectual prowess was increasingly undervalued 56 For example, the Catholic-Conservative internationalist Godehard Ebers had several encounters with student denunciations at Cologne and, after the Anschluss, at Innsbruck. F. GOLCZEWSKI, supra note 27, at 208-11. 57 K. BRACHER, supra note 4, at 271-72; Messerschmidt, supra note 1, at 66; Riithers & Schmitt, Die juristische Fachpresse nach der Machtergreifung der Nationalsozialisten, 1988 JURISTENZEITUNG 369. Almost half of the articles submitted in the early Nazi period failed the ideological test. Fischer, Die Arbeiten des Reichsrechtsa11ltes i11l verfiossenen Ka11lpj}ahr, 6 DEUTSCHES RECHT 357, 358 (1936). Later Hague lecturers such as Scheuner did respect the prohibition on citing Jewish authors. See Partsch, Book Review, 112 ARCHIV DES OFFENTLICHEN RECHTS 129,132 (1987). 58 R. GRUNBERGER, A SOCIAL HISTORY OF THE THIRD REICH 307 (1971). 59 In 3 F. BERBER, LEHRBUCH DES VOLKERRECHTS, at vi n.l (1964), we find a reference to criticism of an earlier work of his by Hamel, 5 DEUTSCHES RECHT 133-34 (1935), which said: "That Ge11leinschajt, politics and law are the results of race and Volkstu11l and that law-making in the new state belongs to Fiihrerdom is nowhere expressed." Hamel goes on to point out that Berber gladly cited non-Aryan works, sometimes with words of special praise. Worst of all, Berber cited a non-Aryan author and Adolf Hitler in the same footnote. The rules about references to Jewish authors seem not to have applied to foreigners. See the appreciative review of H. LAUTERPACHT, FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY, by Schniederkotter, 21 ZEITSCHRIFT FUR VOLKERRECHT [Z FUR VRj 253 (1937). Lauterpacht's 5th edition of L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE (1935-37), was praised at p. 6 of a lecture on the laws of war given in 1938 by Ernst Schmitz, deputy director of the Kaiser Wilhelm Institute and honorary professor at Berlin. (A photocopy of the lecture notes was furnished me by the successor institute in Heidelberg and is now in the Harvard Law School library.) 60 The incorporation of Austria brought into the Reich three law faculties: Graz, Innsbruck and Vienna. The most notable figure was Alfred Verdross. The Zeitschriftfiir offentliches Recht became a Nazi journal. The German University of Prague had already been infiltrated by Nazis before 1939, as Kelsen learned during his stay there. R. METALL, HANS KELSEN, LEBEN UND WERK 68-74 (1969). The Reichsuniversitiit in Strasbourg recreated the Wilhelminic university. The University of Posen in Poland was designed solely for the German population. 61 Law faculties' enrollments suffered from three factors: (1) a decline in the number of individuals of the age normal for universities due to the fall in the birthrate that began after 1914; (2) a decline in the percentage of those in the normal age range who actually went to universities; and (3) a~decline in the relative popularity of law studies among those who did attend universities. In some cases, as in Tiibingen, the decline was dramatic-enrollment in the law faculty fell from 478 in 1932 to 40 in 1941. See U. ADAM. HOCHSCHULE UND NATIONALSOZIALISMUS: DIE UNIVERSITAT TUBINGEN 1M DRITTEN REICH 218-24 (1977). On women law

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in a world that glorified deeds and commands. International law , in particular, was downgraded in the new curriculum, which stressed instruction in race and its legal aspects. 62 After 1939, German universities slowly ground to a halt as students left for the front and bombs flattened buildings and burned other books. 63 Changes also took place in other institutions. The Hamburg institute was drastically reorganized and became in essence a branch of the Foreign Ministry.64 The Kaiser Wilhelm Institute for International Law lost more and more of its personnel to the armed forces during the war.65 Under the leadership ofViktor Bruns, it attempted to maintain its independence and to continue to relate to foreign writers and literature. After the death of Bruns in 1943, Carl Bilfinger, who had become a party member, seems to have set a more collaborationist tone. 66 In addition, the Nazis created a new institution called the Academy for German Law. 67 Its head was Hans Frank, who had been the leading legal fighter for the movement in its battles with the left and the republic. Frank hoped to build a new Nazi jurisprudence, including a new civil code. The academy served as a debating platform for discussions on reforming German law, particularly marriage law and the corporation statute. On the international front, it had the additional task of handling Germany's relations with foreign legal institutions. It invited various prominent foreigners to address the membership, allotted scholarships for study in Germany, and instituted special seminars and conferences. The academy presumably had some impact abroad, but that impact is hard to evaluate. The British historian Arnold Toynbee presented a lecture at the academy that in a conciliatory

students, see J. PAUWELS, WOMEN, NAZIS AND UNIVERSITIES: FEMALE UNIVERSITY STUDENTS IN THE THIRD REICH, 1933-1948, at 44 (1984). 62 For a cautious expression of misgivings about the Nazi decree depriving international law of its status as a required course, see Walz, Viilkerrecht und Reichsjustizausbildungsordnung, 18 Z FUR VR 323 (1934). 63 Thus, Allied bombers claimed the first edition of W. GREWE, EpOCHEN DER VOLKERRECHTSGESCHICHTE 15 (1984), and a treatise by Herbert Kraus on international law. See MENSCH UND STAAT IN RECHT UND GESCHICHTE, FESTSCHRIFT FUR HERBERT KRAUS 462 (H. Kruse & H. Seraphim eds. 1954). On the destruction of both the library and unpublished writings at the Kaiser Wilhelm Institute, see Makarov, Berthold Schenk Graf von Stauffenberg (1905-1944), 47 FRIEDENSWARTE 360, 364 (1947). For a description of the wartime years at Cologne, see F. GOLCZEWSKI, supra note 27, at 287-97. 64 Paussmeyer, supra note 1. 65 See text at notes 74-76 infra. 66 In particular, the institute did not support Wilhelm Wengler in his internal struggles with Nazi rivals; indeed, its discharge of Wengler was found illegal by a labor court in 1945. See Schlabrendorff, Wilhelm Wengler, Wesen und Gestalt, in 1 MULTITUDO LEGUM Ius UNUM: FESTSCHRIFT FUR WILHELM WENGLER ZU SEINEM 65. GEBURTSTAG 1,7-8 (J. Tittel ed. 1973). For a very negative view of Bilfinger, see G. KISCH, DER LEBENSWEG EINES RECHTSHISTORIKERS 91-92 (1975); and more understandingly, Smend, Carl Bilfinger, 20 ZAoRV 1 (195960). For his party membership, see B. VEZINA, supra note 27, at 127 n.515. 67 For an extensive study, see D. ANDERSON, THE ACADEMY FOR GERMAN LAW, 1933-1944 (1987). Chapter 6 deals with its foreign and international law work.

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way recognized Germany's complaints about Versailles and advocated peacefulchange; his memoirs, however, portray him as having been deeply skeptical. The American internationalist James Garner followed his visit with a scathing narration of the treatment by the Third Reich of its internationalists. 68 And there must have been some moments of unintended comedy, as when Hans Frank explained to his Italian counterparts that Nazi jurists' attacks on Roman law as inferior to Germanic law did not really apply in Rome itself. 69 The Nazi Government required substantial amounts of international legal work. Gaus and his associates in the Foreign Ministry had a full agenda. 70 He continued to render yeoman service to the aims of the Reich, although in important cases such as the reoccupation of the Rhineland, he was called in after the event to justify it, rather than consulted beforehand as to its legality. As he looked back on these activities as a witness for the prosecution in the Nuremberg trial of the leaders of the Foreign Office, Gaus expressed regret that he had not left on his own motion at an earlier time. 71 Like many other German professionals, he found the early moves of Hitler congruent with his own values, and when the discrepancy became too obvious it was late in the day. The other official German international law departments were within the armed forces (the Wehrmacht). The first, concerned with providing advice on international law to guide military activities, was located within the Abwehr. 72 During the bulk of the period that we are studying, it was supervised by Admiral Wilhelm Canaris, a professional naval officer much torn by doubts about the rightness of Hitler's policies. 73 Increasingly, the Abwehr became the focus of rivalry and suspicion on the part of the secret intelligence agencies belonging to the dark realm of Heinrich Himmler. The role of those from the Abwehr who fell victim to the revenge of Hitler and his 68 On Toynbee, see id. at 403-04, and A. TOYNBEE, ACQUAINTANCES, ch. 22 (1967). On Garner, see D. ANDERSON, supra note 67, at 402, and Garner, The Nazi Proscription of German Professors of International Law, 33 AJIL 112 (1939). 69 D. ANDERSON, supra note 67, at 426-29. 70 P. SEABURY, THE WILHELMSTRASSE: A STUDY OF GERMAN DIPLOMATS UNDER THE NAZI REGIME, passim (1954). The tension between Gaus's participation in drafting the Locarno pact and justifying its cancellation was noted in G. VOGEL, DIPLOMAT UNTER HITLER UND ADENAUER 22-23 (1969). See also U. VON HASSELL, THE VON HASSELL DIARIES, 1938-1944, at 301 (1947). 71 United States v. von Weizsaecker, 12 TRIALS OF WAR CRIMINALS, supra note 32, at 1186:

I don't hesitate to say that I would be a great deal happier if, during the Hitler regime I had the strength of mind to decide to resign.. . . I had already been working for over 30 years in the Legal Division, and had been its head for over 15 years and semi-consciously I had a feeling of this position which I held, that it had its own law and its own basis in itself in a certain sense. Gaus was in fact removed in 1944 as a result of internal intrigues. P. SEABURY, supra note 70, at 133. 72 For a description of the Abwehr by an insider who was also an international lawyer, see P. LEVERKUEHN, GERMAN MILITARY INTELLIGENCE (R. Stevens & C. Fitzgibbon trans. 1954). 73 K. ABSHAGEN, CANARIS: PATRIOT UND WELTBURGER (1950); H. HOHNE, CANARIS (J. Brownjohn trans. 1979).

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minions after the failure of the assassination attempt of July 20, 1944, is a long and distinguished one, including military professionals like Canaris and Hans Oster and amateurs like Dietrich Bonhoeffer the theologian and Hans von Dohnanyi, an international lawyer and former research assistant at the Hamburg institute. 74 The legal section of the Abwehr included Berthold Count von Stauffenberg, a former assistant at the Kaiser Wilhelm Institute for International Law and brother of the man who carried the bomb into Hitler's headquarters on that fateful July 20. 75 Another noteworthy figure was Helmuth James Count von Moltke. 76 These men attempted to limit the increasingly egregious departures from international conventional and customary rules of warfare that Hitler's attitude toward war made inevitable. A second legal branch functioned within the Supreme Command of the Armed Forces (Oberkommando der Wehrmacht) and had a rather general portfolio. 77 There was a third branch of the Wehrmacht legal service, which specialized in pursuing misdeeds of the opposing armed forces. Its task was to work up the files on such real or alleged Russian atrocities as the massacre at Katyn and the liquidation of East Prussian villages during the great Russian offensive of 1944, as well as to document lesser charges against western combatants. 78 Germany's relations with international institutions were drastically changed by the new regime. It withdrew from the League of Nations in 1933 and reduced its participation in other international tribunals and commissions as rapidly as it could. 79 Those who had figured prominently in those labors were suspected of cosmopolitanism, although some of them, such as Viktor Bruns, continued to be employed because of their prestige. 80 The last person to be employed by the Reich in connection with international institutions was probably Friedrich Berber, who slipped across the border into Switzerland late in the war to become the German representative to the International Red Cross, which was then trying to cope with massive prisoner-of-war problems and related disasters. 81 Or one might attribute that

74 E. BETHGE, DIETRICH BONHOEFFER: THEOLOGIAN, CHRISTIAN, CONTEMPORARY (E. Mosbacher trans. 1970). This work also contains references to Dohnimyi, who was Bonhoeffer's brother-in-law. 75 Zeller, Claus und Berthold Stauffenberg, 12 VIERTELJAHRSHEFTE FOR ZEITGESCHICHTE 223 (1964). See further note 97 infra. 76 Makarov, supra note 63, at 363. 77 The legal office of the Oberkommando. der Wehrmacht was in the charge of Rudolf Lehmann. He was convicted for involvement in preparing the Barbarossa Jurisdiction and Commando Orders, in United States v. von Leeb, II TRIALS OF WAR CRIMINALS, supra note 32, at 690-95 (1948). There was tension between Moltke and Wagner, head of international affairs in the OKW legal office ("the poison dwarf"). Moltke attributed these tensions to Wagner's being a criminal lawyer, not an internationalist. M. BALFOUR &J. FRISBY, HELMUTH VON MOLTKE-A LEADER AGAINST HITLER 282-83 (1972). . 78 A. DE ZAYAS, THE WEHRMACHT WAR CRIMES BUREAU, 1939-1945 (1989). 79 On Hitler's departure from the League, announced in 1933, see I G. WEINBERG, supra note 3, ch. 7. 80 See text at note 104 infra. 81 See text at note 125 infra.

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distinction to those who defended Hitler's lieutenants before the war crimes tribunals established by the Allied powers. 82 Germans continued to appear at foreign-based private institutions ofinternational law. Although they had to obtain clearance, Germans went to The Hague to lecture through 1939. In 1933-1935 Germany was represented by persons who had been chosen before the transition: Arthur Nussbaum (already dismissed as non-Aryan), Hans Wehberg (already for some years in Switzerland), Karl Strupp (dismissed) and Erich Kaufmann (soon to be dismissed).83 Junior and more flexible internationalists followed. While they staunchly defended their fatherland, their texts at The Hague contained much less bombast than pieces published at home, and none of the antiSemitism becoming virulent within Germany. The heart of the Nazi takeover, however, was the changing of personnel. A few months after Hitler became chancellor, a law captioned "the law for the renewal of the bureaucracy" was enacted, which included the professors.84 Under this statute about 16 percent of the university faculty members were replaced, including some 22 percent of the law faculties. 85 Of the tenured professors of international law, several committed suicide (Fleischmann of Halle, Perels of Hamburg, and Neumeyer of Munich),86 several went into exile (Kelsen of Cologne, Mendelssohn-Bartholdy of Ham82 At Nuremberg Schacht was represented by, inter alia, the discharged Professor Herbert Kraus, and Admiral Donitz by a young naval lawyer , Otto Kranzbiihler. They later reflected on their experiences in 13 DE PAUL L. REV. 233 (1964), and 14 id. at 333 (1964). Professor Jahrreiss represented General JodI and delivered a general address on the international law aspects of the case. 17 INTERNATIONAL MILITARY TRIBUNAL [hereinafter IMT], PROC. 47894 (1947). 83 Nussbaum, La Clause-or dans les contrats internationaux, 43 RECUEIL DES COURS 555 (1933 I); Wehberg, La Police internationale, 48 id. at 1 (1934 II); Strupp, Les Regles generales du droit de la paix, 47 id. at 257 (1934 I); Kaufmann, Regles generales du droit de la paix, 54 id. at 309 (1935 IV). 84 1933 Reichsgesetzblatt 175. 85 The figures on the proportions of German professors who lost their posts in the Nazi period are hard to reconcile in detail because of the use of different populations (professors only, professors and assistant professors, or all university teachers) and of different time periods. Thus, J. BENDERSKY, supra note 2, at 202, says that "before the purges ended over 11 percent of Germany's professors would lose their chairs." I. MOLLER, supra note 2, at 76, says that, of 378 law teachers, 120, almost a third, were discharged. K. BRACHER, supra note 4, at 269, gives breakdowns by specialties and universities that puts law faculties at the top ofthe list in terms o~ percentage oflosses (21.2%). He also notes wide variations among different universities ranging from 18% to 32%. E. HARTSHORNE, THE GERMAN UNIVERSITIES AND NATIONAL SOCIALISM 94-95 (1937), found that 1,145 faculty members were dismissed, out ofa total of 7,000, or roughly 16%. Building on this study, Garner, supra note 68, at 113, concluded that of some 50 or 60 professors of private as well as public international law , 24 lost their posts. Ofall the German law faculties, the one most seriously affected was Kie\, where only one full professor survived the purge. E. DOHRING, supra note 28, at 202. 86 Wehberg, Professor Max Fleischmann, 46 FRIEDENSWARTE 381 (1946); Wehberg, Karl Neumeyer zum Gediichtnis, "41 id. at 256 (1941); Borchard, Professor Theodor Niemeyer, 34 AJIL 334 (1940). On Kurt Pere\s, see the biography of his nephew who perished as part of the resistance to Hitler. Schreiber, Friedrich Justus Perels (1910-1945), Rechtsberater der Bekennenden Kirche, in STREITBAREJURISTEN, EINE ANDERE TRADITION 355, 358 (T. Blanke ed. 1988) [hereinafter Blanke].

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burg, and Strupp of Frankfurt), and several were dismissed or went into premature retirement (Kaufmann of Berlin and Schiicking of Kiel). All in all, seven full professors of international law seem to have been ousted in 1933-1935, and six more were dismissed in 1937-1939. 87 The delays resulted in part from exemptions under the law as originally put into effect, for example, for men with service in World War I. In some cases, such as that of Herbert Kraus at Gottingen, the victim's maneuvers postponed severance, and in others, sympathetic law school deans or university rectors put off the evil day.88 Others dropped out through death, illness or retirement before 1945. The decimation of the profession represented a higher proportion· than that of German professors in general, and law professors in particular. 89 This turnover presented opportunities for those who remained. There was a considerable amount of movement by those who were already Ordinarien. Carl Schmitt went from Bonn via Cologne to Berlin, for example, and others shifted chairs as well. 90 After slow promotions in the Weimar period, opportunities opened up for assistant professors. In particular, they opened up for younger men who were already Nazis or could quickly adopt brown coloration. Their loyalty could be tested or enhanced by passage through a special camp for assistant professors that included military and physical exercises to develop their nonintellectual powers. 91 It is in this group that we find the crassest expressions of National Socialism, such as Norbert Giirke's work on the influence of Jewish scholars on internationallaw. 92 Some of the new crop of Ordinarien, most notably Ulrich Scheuner, were able to continue after World War II since for the most part they had not / . been at the front and since there was no lasting general purge of Nazi-appointed professors in the Western zones of occupation. 93 Only Carl Schmitt

87 Appendix A to this article, infra p. 703, attempts to account for all dismissals of tenured professors of international law during the Third Reich. 88 On the case of Herbert Kraus, see Halfmann, Eine "Pjianzstiitte bester nationalsozialistischer Rechtsgelehrter": Die juristische Abteilung der Rechts und Staatswissenschaftliche Fakultiit, in H. BECKER, H.J. DAHMS & C. WEGELER, DIE UNIVERSITAT GOTTINGEN UNTER DEM NATIONALSOZIALISMUS: DAS VERDRANGTE KAPITEL IHRER 250 JAHRIGEN GESCHICHTE 88 (1987). 89 See note 85 supra. The only conceivable American comparison is to McCarthyism, but that was on a very different scale. It has proved almost impossible to arrive at any meaningful estimate of the job losses incurred at that time. One study says that on half of the 58 campuses studied, "the appointments of at least two faculty were threatened." L. LEWIS, THE COLD WAR ON CAMPUS 38 (1988); compare E. SCHREIBER, No IVORY TOWER 10,241 (1986). 90 J. BENDERSKY, supra note 2, at 189-91,206. 91 Wieacker, Das Kitzeberger Lager junger Rechtslehrer, 1 DEUTSCHE RECHTSWISSENSCHAFT 74 (1936). See also B. RUTHERS, ENTARTETES RECHT 41-48 (1988). 92 N. GURKE, DER EINFLUSSJUDISCHER THEORETIKER AUF DIE DEUTSCHE VOLKERRECHTSLEHRE (1938), volume 6 of a series, Das Judentum in der Rechtswissenschaft, produced under the auspices of Carl Schmitt. For background, see B. RUTHERS, supra note 91, at 128-31. 93 Reimann, supra note 2. Of those who won chairs in 1933, Scheuner was the most conspicuous in international law after 1945. Maunz and Forsthoff were important in constitutional law but not international law. Several of the newcomers prominent in the 1930s do not reappear, e.g., Ritterbusch and Ruehland.

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proved unacceptable in the new Germany94 and Friedrich Berber found it wise to spend some time in India before finding a new chair in Munich. 95 Numerous assistant professors and research assistants also survived to form the next layer of full professors in the postwar Germany-Eberhard Menzel, Hermann Mosler and Hans-Jurgen Schlochauer, for example. The executioner deleted some promising international law careers as a consequence of the abortive 1944 conspiracy. Germany could well have used the services of Berthold von Stauffenberg and Helmuth James von Moltke after the war. IV. THE INTERNATIONALISTS REACT

The options available to a German professor of international law after 1933 were very limited. First, he could resist. In historical perspective the valor of those who did stands out like a candle in the moral darkness of Nazi Germany. The risks they took were enormous and for most of them the outcome was death. However, there were limits even on that choice. To resist, one had to be connected with a nucleus oflike-minded persons. There was such a nucleus in the Abwehr and it was there that the resisters made their desperate plans. One can never know which other international lawyers might have joined them had they been informed. Those who resisted on July 20, 1944, had, to varying degrees, been useful collaborators of the regime until then. Like Count von Moltke, they might have argued in legal terms against certain measures of the regime, but they justified and formulated others that did not so clearly violate internationallaw. 96 Before giving his life with the conspirators, Berthold von Stauffenberg had loyally defended the Nazi laws denaturalizing non-Aryans and Hitler's denunciation of the Locarno pact. 97 In this he resembled his brother Klaus who, before the day he took the bomb into the Fuhrer's headquarters, had fought valiantly for Germany, and hence for Hitler, on two continents. Only a few resisters -none of them full professors-who were Social Democrats were continually in dangerous and unarmed opposition. 98 Second, one could emigrate. This was not an easy choice to make. 99 In personal terms it might mean sacrificing a hard-won chair to try one's hand Schmitt's career after 1945 is dealt with in]. BENDERSKY, supra note 2, at 264-87. See F. BERBER, ZWISCHEN MACHT UND GEWISSEN: LEBENSERINNERUNGEN, ch. XII (I. Strauss ed. 1986). 96 Makarov, supra note 63, at 363. 97 Zeller, supra note 75. Articles by Stauffenberg are cited in notes 19 supra and 177 infra. 98 For the career of one Social Democrat who became a professor after the war, having spent much of the Nazi period in prison, see WOLFGANG ABENDROTH, EIN LEBEN IN DER ARBEITERBEWEGUNG (B. Dietrich &]. Perels eds. 1976); Sterzel, Wolfgang Abendroth (1906-1985), Revolutioniir und Verfassungsjurist der Arbeiterbewegung, in Blanke, supra note 86, at 476. 99 A moving attempt to explain the difficulties of emigration in the 1930s to a younger generation, used to greater mobility and less tied emotionally to their home countries, is found in P. LEVI, THE DROWNED AND THE SAVED 161-65 (R. Rosenthal trans. 1988). The harshness of emigration as an experience is indicated by the early deaths of three exile scholars in our sample: Albrecht Mendelssohn-Bartholdy, Walther Schiicking and Karl Strupp. For a summary of the experience of the German emigration, see H. PROSS, DIE DEUTSCHE AKADEMISCHE EMIGRATION NACH DEN VEREINIGTEN STAATEN, 1933-41 (1955). 94

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at making a new career in a strange country during a depression. Few in fact made successful careers outside Germany. Of all the full professors of public international law, only Hans Kelsen succeeded in making his mark in the United States. lOO Some of the younger assistant professors had more luck, for example, Stefan Riesenfeld, Wolfgang Friedmann, F. A. Mann and Georg Schwarzenberger. lol At the political level, leaving Germany meant abandoning hope that one might playa role in an internal struggle to change the regime, although one could help by countering Nazi foreign propaganda. 102 That hope, of course, faded as time went on, but it was widely held in 1933-1934, perhaps most tenaciously by conservatives who hoped that the established elites could control the Nazi rabble. The odds were different, naturally, for those who had already lost their posts in Germany and for those who knew they were targeted for racial persecution. Then one could enter the so-called internal emigration. This meant disconnecting oneself from public life as much as was permitted. A professor of international law could generally survive ifhe already had tenure by writing little or nothing, or writing only about safe subjects such as the history of international law and diplomatic immunity. lOS Preparing notes about recent decisions or treaties was morally unobjectionable. In his lectures a professor might be technical and neutral and be perfunctory in giving the obligatory salute, although even this modicum of disrespect might displease activist students in brown uniforms. In seminars he could even venture a bit of sarcasm about the situation-near the end of the semester when he knew his students. He might find a way to do a kindness for somebody who was being victimized for racial or political reasons. And he might send messages to friends abroad telling them about the cruel realities of the Reich. It is often hard to judge who belonged in this category, for these actors left none of the tracks made by those who chose resistance or emigration, and we are forced to rely on the testimony of friends and on occasional letters. Another branch of the internal emigration consisted of those who lost their posts or abandoned their efforts to achieve promotion but did not leave the country. They 100 Hans Kelsen's difficult progress in the United States is described in Gross, Hans Kelsen, 67 AJIL 491 (1973). Both Leo Gross and John Herz, afterreadinga draft of this essay, urged me to underline Kelsen's personal generosity to students and even adversaries. For his willingness to support Schmitt's appointment in Cologne, see F. GOLCZEWSKI, supra note 27, at 299. Schmitt repaid this openmindedness by being the only full professor not to sign the faculty'S appeal to retain Kelsen. Id. at 117. 101 See Mann, Conflict of Laws and Public Law, 132 RECUEIL DES COURS 107, 131 (1971 I); Schwarzenberger, The Fundamental Principles of International Law, 87 id. at 191, 193 (1955 I); Tribute and Symposium honoring Riesenfeld, 63 CALIF. L. REV. 1384 (1975); Jessup, Introduction to JUs ET SOCIETAS: EssAYS IN TRIBUTE TO WOLFGANG FRIEDMANN (G. Wilner ed. 1979). An interesting example of the reflection of that success back across the Atlantic is the German Ius INTER NATlONES: FESTSCHRIFT FOR STEFAN RIESENFELD (E.Jayme, G. Kegel & M. Lutter eds. 1983). 102 Thus, after his' discharge from Gottingen, Gerhard Leibholz made contact with important members of the British elite and attempted to forge ties between Britain and the German resistance. See Klein, Gerhard Leibholz, in RECHTSWISSENSCHAFT IN GOTTlNGEN: GOTTINGER JURISTEN AUS 250 JAHREN 528, 530-31 (F. Loos ed. 1987) [hereinafter Loos]. 105 See note 115 infra for Laun as an example.

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found work of other sorts that did not involve taking legal positions about public matters. At the next point along the spectrum, one tried to pursue a normal career, though without identifying oneself with Nazism internally. Such an internationallawyer would write obligatory pieces, putting in some obeisance to the new order and the theories that underlay it but without indulging in racist rhetoric. He was attached to the system, of course, and in a way served it. In fact, Viktor Bruns was arguably the greatest servant of the Third Reich among the international lawyers. Without raising his voice in Nazi frenzy, Bruns provided the regime with the respectability that his long career as scholar, arbitrator and negotiator had built up. As chair of the German academy's committee on international law, he greeted foreign scholars and diplomats, and by remaining in the post assured them that the regime could not really be so bad. 104 Last, one could be an opportunist or a convinced Nazi, embracing all of the doctrines of race, Yolk, Lebensraum and the Fuhrer principle. This phenomenon occurred mostly among the assistant professors of 1933, partly because they had more to gain by currying favor with the powers, but also because they belonged to the age cohort most vulnerable to Nazism. Growing up in a Germany beset by perils both foreign and domestic, the children of the turn of the century fell prey to the allure of a strong leader and a mass party. They tended to be more radical than their predecessors. It is sometimes hard to know how much opportunism and fanaticism were mixed in these personalities. 105 In particular, a reader in the 1990s wonders whether they really believed in the Nazi teachings on anti-Semitism. The Nazis themselves sometimes doubted the genuineness of the prejudice of some scholars, particularly those who, like Carl Schmitt, had enjoyed close relations with Jewish colleagues in earlier years. 106 As one thinks about those who chose these various courses, justice requires consideration of the circumstances under which they had to operate. The pressures to conform ranged from the general social atmosphere of enthusiasm for the new Germany to the cruder manifestations of the criminal law and the state's power to dismiss or promote. Some Germans, those who were classified as partially Jewish by the Nazis, those whose wives were Jewish and those who had participated in leftist politics, were under special pressure. 107 See D. ANDERSON, supra note 67, at 447-49. I tend to place more weight on opportunism than does, for example, Professor Reimann, supra note 2. An outstanding illustration of opportunism is the case of Carl Schmitt, described in the text at notes 117-20 infra. A striking admission of this is Ulrich Scheuner's explanation for his writings: "Well, you know, I have a weakness for power," quoted in Weber, Rechtsuissenschaft im Dienst der NS-Propaganda, in 2 Gantzel, supra note 10, at 185, 354. See also the comments of Wilhelm Wengler, 56 INSTITUT DE DROIT INTERNATIONAL, ANNUAIRE 318, 322 104

105

(1975).

J.

BENDERSKY,.jupra note 2, at 229-30, 234-38. Thus, Gaus reports that he felt constrained in his work in the Foreign Office by concern about his partly Jewish wife. United States v. von Weizsaecker, 12 TRIALS OF WAR CRIMINALS, supra note 32, at 1187. The pressures felt by the commercial lawyer Julius von Gierke because of his maternal grandparents are reported in Mliller-Laube, julius von Gierke (1875-1960), in Loos, supra note 102, at 471, 477-78. 106

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We live in an age when the highest penalty for nonconformity in the academy is the tendency of colleagues not to speak to one while passing in the corridor. The stakes were higher in the Third Reich.

V.

SOME INDIVIDUAL DESTINIES

The picture of the German internationalists becomes more concrete and their problems more poignant if we examine the lives of a few exemplars of each of the choices just described. To begin with the resisters, we pick up the life of a man from outside the circle of full professors, none of Whom had the occasion to resist so dramatically-Helmuth James von Moltke. The picture that one's mind retains is not the typical, stifHy posed head-and-shoulders shot in a Festschrift or the Hague Recueil. It is the photo of Moltke, weary, resigned, but still upright, facing the judges of the People's Court that was about to sentence him to death. 108 Moltke was heir to a Prussian military name that had all the glamor, and more, that Southerners attach to the name Robert E. Lee. Still, he was not himself in any sense a military man. He studied international law in Germany and in England, where he was a member of the bar, and then returned to Germany to private practice. When World War II broke out, he was drawn into the legal branch of the armed forces headquarters. There he dealt intensively with economic warfare and the production of legal responses to the British blockade system. He also became involved in a series of clashes over the treatment of prisoners of war. These issues, treated substantively in part VII below, pitted Moltke against the hard-line Nazis in the military establishment. The clashes show that he was well aware of the atrocities being committed by the German armed forces and determined to do what little was in his power to mitigate the situation. Moltke sought to minimize violations of international law not only by making legal and pragmatic arguments in favor of complying with the rules, but also by circulating items from the foreign press showing that enemy states were in fact doing so. In one episode he and his colleagues resorted to a modest bit of sabotage. The Nazis forbade the distribution of post cards from German prisoners in the Soviet Union because they feared it would undermine morale. Some intercepted cards came to Moltke's office for analysis and the staff slipped as many of them as they dared into the nearest mailbox. The nature of his work was such that Moltke could not do what others in the Abwehr did, turn militarily useful data over to the enemy. At the same time, he was active in discussions about the future of Germany after the end of the Nazi regime within a circle of friends that came to be known by the name of his country estate, Kreisau. He was not, however, directly involved in the attempt on Hitler's life (he was in prison at the time), 108 CONSCIENCE IN REVOLT 231 (A. Leber ed., R. O'Neill trans. 1957). There were others in the Kreisau resistance circle who could be said to have been influenced by exposure to interna. tionallaw: Adam von Trott zu Solz, Hans-Bernd von Haeften and Paulus van Husen. G. VAN ROON, NEUORDNUNG 1M WIDERSTAND, DER KREISAUER KREIS INNERHALB DER DEUTSCHEN WIDERSTANDSBEWEGUNG 143, 152, 195 (1967).

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as were other members of that circle and Berthold von Stauffenberg, who worked in the same office with him. Moltke was arrested in January 1944 because of power struggles between Himmler and Canaris over the control of intelligence activities. ~09 In 1945 he was executed together with the conspirators. In 1948 an eloquent tribute was paid to him by Professor Wegner, who, after his dismissal from his chair in international law at Breslau, had been persecuted by the regime: My other defender was my student at Breslau, Count Helmuth James von Moltke. He was indeed the tersest, clearest and most competent jurist that I knew among my students. His life as a student is long past. Before the dead I bow as to a role model and teacher. Count He1muth James von Moltke was a nobleman of both greatness and goodness. What he did as an English and German lawyer, as defender of the persecuted and despised, belongs to history. He and the Countess, the outstanding student of Martin Wolff, were true friends of legal science and of their professors. I can no longer thank Count Moltke for what he personally did for me as my defender. . . . But one thing I can still do for Count Helmuth James von Moltke: I can here publicly offer this modest and loyal tribute to a German nobleman who died for justiceYo Karl Strupp stands for those who went into exile. His pre-1933 career was a brilliant one. As tenured professor at Frankfurt, as coeditor of the Encyclopedia ofInternational Law, as three-time lecturer at The Hague, and as author of numerous works and writer of numerous contentious opinions, he made a name for himself in the profession and fought hard for the cause of peace and reconciliation. III His exile was in part due to his Jewish lineage-Giirke refers to him as one of the best-known Jewish enthusiasts for the Leagueand in part due to his substantive positions.ll 2 Strupp tried to manage as a visiting professor in Istanbul, but the climate proved bad for his health. In financial distress, he moved to France where he died shortly before the German onslaught. He had just received a long sought-after invitation to teach in New York at Columbia University's Institute for Social Research, but a heart attack intervened. llS Strupp's 1934 Hague lectures say little about Nazism directly but rather wistfully express confidence that even though Germany had left the League of Nations, it had affirmed its attachment to the cause of peace. They end with a quotation from the French revolutionary Mirabeau: "one day law will be the sovereign of the world."ll4 The hardship and frustration that accompanied Strupp's exile were far more typical than the successes of the more prominent few among the emigres. 109 110 III

Wengler, HelmuthJames von Moltke (1906-1945),48 FRIEDENSWARTE 297,303 (1948). A. WEGNER, EH~,FOHRUNG IN DIE RECHTSWISSENSCHAFT 3 (1948). See the Wiirterbuch des Viilkerrechts und der Diplomatie, which Strupp edited from 1924 to

1929. 112 N. GORKE, supra note 92, at 19, 35. liS

114

Wehberg, Zum Andenken an Karl Strupp, 40 FRIEDENSWARTE 175, 178 (1940). Strupp, supra note 83, at 586.

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Rudolf von Laun represents those who withdrew and, without being active resisters, did as little as possible for the regime and in fact did little writing of any sort. 115 It is remarkable that Laun, as a Social Democrat, survived at all. We know from reliable testimony and letters that he made several attempts to prevent the appointment of fanatics to the Hamburg law faculty and sought to help others placed in jeopardy by the regime. His classroom performances gave as little weight to the new regime as was possible. But, despite his critical attitude toward Nazism, he refused an invitation to stay at the Michigan Law School after a visit there in 1934-1935 and returned to share the perils of his country. His survival enabled him to playa leading role in the reconstruction of the German international law community after 1945. Preeminent among those who stayed and carried on without an inward commitment to the regime was Viktor Bruns. Of all this group, he probably had the most distinguished record. He was a founder of the Kaiser Wilhelm Institute and of its journal. His writings were extensive. His participation in the work of international tribunals and other bodies was important. After the Nazi seizure of power, Bruns became Chairman of the Committee on International Law of the Academy for German Law. As such, he represented the new regime to the rest of the international community and lent the prestige of his scholarly achievements to that Government. There is testimony from reliable persons that his sympathies did not lie with the Government and such opponents of Nazism as Stauffenberg, Wengler and Jaenicke were his students. 116 Still, it is not unfair to say that, objectively, he proved to be the most useful ally the Government had among the members of the international law community. Our first case among the enthusiasts or opportunists is that of the devil's advocate, Carl SchmittY7 Here we have a man of great talent, eloquence and ambition. His rise to the heights of influence had largely to do with his work in constitutional law, supporting first the insidious attacks on Weimar institutions by the regimes immediately preceding Hitler's and then the 115 On Laun, see Weber, Von Albrecht Mendelssohn-Bartholdy zu Ernst Forsthojj.' Die Hamburger Rechtsfakultiit im Zeitpunkt des Machtiibergangs, 1933 bis 1935, in 1 Gantzel, supra note 1, at 166, 171-79. Laun cut back on his teaching of constitutional law, concentrating on international studies as less controversial; when he did teach constitutional law, he emphasized its historical aspects. His only written products during the period were bland: Stare Decisis, 25 VA. L. REV. 12 (1938); DER SATZ VOM GRUNDE: EIN SYSTEM DER ERKENNTNISTHEORIE (1942) (on the theory of knowledge). There are two celebratory volumes on Laun: GEGENWARTSPROBLEME DES INTERNATIONALEN RECHTS UND DER RECHTSPHILOSOPHIE: FESTSCHRIFT FUR RUDOLF LAUN ZU SEINEM SIEBZIGSTEN GEBURTSTAG (D. Constantopoulos & H. Wehberg eds. 1953); FESTSCHRIFT ZU EHREN VON RUDOLF LAUN (C. Hernmark ed. 1948). In conversations at Salonika in August 1988, Dr. Constantopoulos told me of Laun's attempts to intercede on behalf of persecuted persons. 116 For a favorable review of Bruns's contributions, see Borchard, supra note 29. He says of Bruns: "Although never a member of the 'Party,' and revolted by much that offended his own elevated principles, he thought it best to carryon, keeping the Institute out of Party control and maintaining its high standards. This was no easy task." 1d. at 659. See also the note by Triepel, 11 ZAoRV 325 (1942). 117 J. BENDERSKY, supra note 2, at 263.

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Fuhrer's own frontal assault. It was only later that his emphasis shifted to international law, partly because he found himself locked in battle with others who had been Nazis long before he joined the party in 1933 and were anti-Semites while he was still consorting with Jewish colleagues. IIB His own vicious attacks on his old colleagues were not enough to save himself from similar attacks for those associations. During the war years, Schmitt wrote extensively to explicate his ideas of a European Grossraum, a system within which Germany would rightly be the dominant power. He analogized this theory to the Monroe Doctrine in the Americas, a notion that does not carry strong appeal to the American international lawyer. Even here he was plagued by the competition of other National Socialist writers who sought to outflank him. The ambiguity of his situation is highlighted by his experience as a house guest of Popitz in Berlin inJuly 1944. 119 In that house he learned that his host had been arrested for participating in the conspiracy. Although he had not trusted Schmitt enough to tell him about the plot, Popitz put him in considerable peril by his mere proximity. The conspicuousness of his advocacy of Nazism made the reintegration of Schmitt into the postwar university system impossible, although efforts were made on his behalf and he was honored by successive Festschriften. Erich Kaufmann's observation that he was the will-o'-the-wisp who led other jurists into the swamp of Nazism is the abiding judgment. 120 The other leading opportunist in our story is Friedrich Berber. 121 Less vaultingly ambitious than Schmitt, he made fewer enemies during the Third Reich and did less drastically evil things. Still an assistant professor in 1933, he hoped to be called to a chair at Hamburg to replace Perels; that hope was blocked by Schmitt, who wanted the post for one of his proteges. 122 Berber wound up becoming head of the Hamburg institute, which he moved to Berlin in 1937. There he turned it into a research and propaganda arm of the Foreign Ministry, to which it was attached. He wrote or directed the writing of propaganda, some of which had a substantial international law content. He also published drastically edited versions of the diplomatic relations of the Reich. 123 In 1943, seeing the handwriting on the wall, Berber arranged to be appointed German representative to the International Commission of the Red Cross. His role in Switzerland is subject to various interpretations, but it is clear that he was involved in the last-minute maneuvers of leading Nazis to try to soften their fall in exchange for better treatment of Hitler's victims. 124 [d. at 248-49. 119 !d. at 263-64. E. KAUFMANN, Carl Schmitt und seine Schule: Offener Brief an Ernst Forsthoff, in RECHTSIDEE UND RECHT, 3 GESAMMELTE SCHRIFTEN VON ERICH KAUFMANN 375 (1960). 121 The principal sources on Berber are his own autobiographical self-justification, supra note 95, and Weber, suprl1 note 105. 123 1 G. WEINBERG, supra note 3, at 366. 122 Weber, supra note 105, at 253. 124 See Weber, supra note 105, at 393-409; see also J. FAVEZ, UNE MISSION IMPOSSIBLE? LE CICR, LES DEPORTATIONS ET LES CAMPS DE CONCENTRATION NAZIS 346 (1988). 118

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After the war, he found it wise to spend several years in India as a government adviser before finding a place at Munich in 1953. One's impression of Berber, partly from the rather intensive study by the historians of the institute and partly from a brief personal encounter, is of an almost picaresque character, skipping from post to post in a troubled time and doing what the powers wanted, without taking them wholly seriously. The British historian Arnold Toynbee found him to be "sly; and he was double-faced."125 He never plunged into the anti-Semitism that shamed Schmitt; nor did he betray old friends as Schmitt did. Indeed, he seems to have indulged in ~arious protective kindnesses along the way. When we come to the fanatics, as distinguished from the opportunists, it becomes harder to present any rounded picture of their lives or characters. Whatever biographies were written of them in Festschriften or other formats tend to conceal the truth; and their later careers have disappeared from our view, as few of them remained in international law after the war}26 For example, in the 1930s Theodor Maunz wrote some rather violent words about the need to ignore the niceties of the old rules of warfare. After 1945, he appears only as a constitutional lawyer, fiercely attacked by the left for his earlier work. 127 Another problem of imagining these people is that when one meets them now they seem almost disconnected personally from what they were and did in the 1930s. For example, I met a man of that generation in another field of law who wrote some very Nazi things during the Third Reich}28 I know him as a kindly, avuncular, deeply learned scholar in his eighties, on good terms with hundreds of colleagues and students. I read what he said about the excitement of being a member of the assistant professors' camp at Kitzeberg in the early thirties and I cannot connect the two. Was what he said then opportunistic pretense? Has he grown and learned since then? 125 Berber is the only figure here discussed whom I have met. It was at an occasion in Cambridge, Massachusetts, where he genially, but falsely, claimed to have been a friend of my father. There is a lengthy description of an encounter with Berber in A. TOYNBEE, supra note 68, at 277-78; Berber arranged an audience with Hitler for the Briton. For a kinder, but not uncritical, view of Berber, see Randelzhofer, Friedrich Berber, inJURlsTEN 1M PORTRAIT: VERLAG UND AUTOREN IN 4 JAHRZEHNTEN: FESTSCHRIFT ZUM 225 JAHRIGEN JUBlLAUM DES VERLAGES C. H. BECK 170 (1988). 126 In general, the most trustworthy accounts of individual careers are those emanating from Hans Wehberg and his circle in Switzerland; Wehberg combined intimate knowledge of German international lawyers and their work with high moral standards and a considerable amount of charity. One attributes higher value to those Festschriften in which Wehberg and such figures as Gerhard Leibholz, Rudolf Laun and Erich Kaufmann were willing to participate. 127 Dieseroth, Kontinuitiitsproblem der deutschen Staatsrechtlehrer: Das Beispiel Theodor Maunz, in ORDNUNGSMACHT? UBER DAS VERHALTNIS VON LEGALITAT, KONSENS UND HERRSCHAFT 85 (D. Dieseroth, F. Hese & K. Ladeur eds. 1981); see also Reimann, supra note 2, at 1652-53. Maunz's Nazi writings in defense of aggressive war without regard to laws are reprinted in MAUNZ 1M DIENSTE f)ES FASCHISMUS UND DER CSU (L. Elm, G. Haney & G. Baranowsky eds. 1964). This publication by the East German University ofJena contributed to Maunz's deposition as Bavarian Minister of Culture. 128 See sources cited in note 91 supra.

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We can present at least the externals of one certified fanatic. Norbert Giirke was an Austrian Nazi who had to flee his homeland for forbidden pro-Hitler activity. 129 He wrote the anti-Jewish international law volume of Schmitt's collection of anti-Semitic treatises. The rest of his work glorified race and blood and Yolk. Consistently, hejoined the army at the start and was wounded in the French campaign of 1940. Because the wound interfered with his athletic prowess, he chose to undergo an operation that proved fatal. His colleague Walz praised his combative and ruthless scholarship. 130 There must have been others like him in the community of new international lawyers.

VI.

INTERNATIONAL LAW DOCTRINES IN PEACETIME

Changes in German international law doctrines became apparent upon the seizure of power, but it is wrong to think of them as resulting from an entirely orderly process. 131 International lawyers did not execute a right wheel all at once. As we have seen, the party did take measures to assure coordination,132 but there were overlapping authorities and considerable disorder. Some of the confusion was occasioned by the sheer difficulty of making out what sort of international law National Socialism really implied or needed. In particular, Hitler did not advise the internationalists when he decided to shift from a cautious renegotiation of the status quo to a headlong plunge toward war.133 If it was not always easy for Russians to decipher what sort of international law Marxism required, it was all the more difficult to see what National Socialism called for. Thus, there were some sharp conflicts within the ranks of the Germans, heightened by maneuvers for personal promotion and gain. The international law literature produced in this period is not easy reading: its premises are basically incoherent and hard to accept in the 1990s. Moreover, the style becomes increasingly truculent and self-congratulatory and, of course, shows the influence of the Nazi vocabulary, the Lingua Tertii Imperii (L TI).134 The German literature did not gain a cordial reception among internationalists outside the Reich. 135 The following survey concenWalz, Prof Dr. Giirke, 25 Z FUR VR 129 (1940). 130Id. 131 Messerschmidt, supra note I, at 62-63. 132 See text at notes 56-59, 91. 133 The lack of awareness by German internationalists of Hitler's short-run aggressive plans is stressed in Messerschmidt, supra note I, at 78-79. It is generally thought that the meeting of November 5, 1937, memorialized by the so-called Hossbach Protocol, provided the first warning of these plans even to the military/government elite. Wright & Stafford, Britain and the Hossbach Memorandum, MILITARGESCHICHTLICHE MITTEILUNGEN, No.2, 1987, at 77. IH Helpful works on the changes Nazism. wrought in the German language are: C. BERNING, YOM "ABSTAMMUNGSNACHWEIS" ZUM "ZUCHTWART": VOKABULAR DES NATIONALSOZIALISMUS (1964); and V. KLEMPERER, LTI, NOTIZBUCH EINES PHILOLOGEN (4th ed. 1987). 135 See sources cited supra note I and book reviews by Kunz, 29 AJIL 554 (1935) (Wolgast); by Kopelmanas, 42 RGDlP 517 (1935); by Engelberg, 46 id. at 37 (1939) (on Verdross); and by Kunz, 34 AJIL 173 (1940) (on Schmitt and others). But F. NEUMANN, BEHEMOTH: THE STRUCTURE AND PRACTICE OF NATIONAL SOCIALISM 151 (2d ed. 1944), says, "What is sur129

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trates on those matters most starkly affected by Nazism and slights those for which orthodoxy continued to prevail.

The Nature of States International law has classically been considered to be the law governing relations between states. A state is thought of as having a defined territory, a population and a government in control thereof. 136 National Socialist thinking reversed these priorities. A Yolk is an organic, natural entity.137 Nazi thinkers liked to cite the classic differentiation originated by the sociologist Tonnies between a GemeinschaJt and a GesellschaJt.138 A GesellschaJt is an artificial entity consciously created through the individual wills of its constituents. It is a creature of the liberal world as it has existed since the French Revolution of 1789. A GemeinschaJt, in contrast, is a hereditary and organic thing in itself, antecedent to and superior to the individual molecules that happen at the moment to make it up. A GesellschaJt expresses its will by aggregating individual wills through artificially constructed constitutional processes. A GemeinschaJt has an objective common will arising from the organism and speaking through the leader who understands it. A Yolk expresses its will through a state. Ideally, a single Yolk has a single state to express its essence. But the accidents of history have divided some Votker, such as the Germans, that should be one and assembled other states, such as the Austro-Hungarian Empire, that are artificial mixtures. 139 Still, the course of both history and morality moves toward a correspondence of one Yolk, one Reich and one Fuhrer. Thus, Hitler gave high priority in his foreign policy to returning Germans in Austria to their racial home. Any analysis of the character of states calls forth the question of their equality. German thinking after 1933 laid considerable emphasis on equality as a basis for the argument that the Versailles settlement was unjust and

prising is that outside Germany, especially in England, experts in international law were seemingly unaware of the game that was being played." The Austrian A. VERDROSS, VOLKERRECHT 29 (1937), accepted Nazi international law at face value. 136 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAWOF,THE UNITED STATES §201 (1987) [hereinafter RESTATEMENT]' 137 The matter was thus put by Reinhard Heydrich, Himmler's chief deputy: National Socialism no longer proceeds from the state as a starting point but from the Volk. Hitler pointed the way as early as Mein Kampf He characterizes the state as a "means to an end," as a "structure for the Volkstum," for the maintenance of a "GemeinschaJt of physically and spiritually similar human beings." (footnote omitted) Heydrich, Die Bekiimpfung der Staatsfeinde, 1 DEUTSCHE RECHTSWISSENSCHAFT 97, 97 (1936). See generally E. JACKEL, HITLER'S WELTANSCHAUUNG, A BLUEPRINT FOR POWER, ch. IV (H. Arnold trans. 1972). 138 For the usage of GemeinschaJt in Nazi thought, see Stolleis, GemeinschaJt und VolksgemeinschaJt-Zur juristischett Terminologie im Nationalsozialismus, 20 VIERTELJAHRSHEFTE FUR ZEITGESCHICHTE 16 (1973). And in international law, F. GIESE & E. MENZEL, YOM DEUTSCHEN VOLKERRECHTSDENKEN DER GEGENWART 34-35 (1938). 139 See F. GIESE & E. MENZEL, supra note 138, at 37,58-61.

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perhaps void because it left Germany in an inferior position. 140 In addition to equality, the argument was technically linked with concepts of inalienable sovereign rights, that is, of a minimal set of rights that governments cannot bargain away.141 German thinking here followed an analysis separate from, but parallel to, one that was then beginning to take shape in such countries as China and Turkey, which were pushing for the surrender of special extraterritorial rights that the western powers had imposed. That strand of thought, after World War II and during the decolonization process, became the central theme of Third World internationallaw. 142 In Germany the main items of objection were the imposition of unilateral arms limitations, accompanied by what we would now call "on-site" inspections, the demilitarization of the Rhineland and the financial controls imposed under the Dawes and Young Plans. 143 German theory on the sovereign freedom of a state from interference within its own territory was put to an ironic test in 1936. Germany eventually accepted Swiss representations that German agents had violated international law when they seized Berthold Jacob-Solomon, an emigre German publicist, on Swiss soil. Faced with a Swiss threat to proceed with arbitration, as well as foreign repercussions, Hitler reluctantly concluded that it would be discreet to concede the matter and return Jacob to Switzerland. 144 By 1939, with the war in progress, the Nazi regime's approach to such problems was wholly different, and no consideration was given to returning the two British agents seized at Venlo in Holland. 145 In fact, around 1939 the basic mood of German thinking about state equality changed drastically. As Hitler went from one triumph to another, equality no longer seemed to be enough. Indeed, one could have discovered his view at any time by a fair reading of Mein Kampf'46 By 1937 and 1938, 140 Important works on equality of the early Nazi years are Bilfinger, Gleichheit und Gleichberechtigung der Staaten, in HANDBUCH, supra note 16, at 99; and Bruns, Deutschlands Gleichberechtigung als Rechtsproblem, 1933 JURISTISCHE WOCHENSCHRIFT 2481. 141 See Bilfinger, supra note 140, at 99 ("Equality and equality of rights . . . form a basic law of the state that is inextricably tied to its existence as a state and therefore is inalienable"). 142 Morvay, Unequal Treaties, in [Instalment] 7 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 5 I 4 (R. Bernhardt ed. 1984), surveys the history of the idea of unequal treaties. There does not seem to have been any significant cross-fertilization among German, Turkish and Chinese attacks on treaties regarded by those states as unequal. However, at least one German item reports such attacks and treats them with respect. Tabouillot, Das Ende der Exterritorialitiitsrechte in Mandschukuo, 3 VOLKERBUND UND VOLKERRECHT 459 (1937). 143 Schwendemann, Die Abriistungsfrage, in HANDBUCH, supra note 16, at 194. 144 For contemporary analysis, see Preuss, Settlement of the Jacob Kidnaping Case, 30 AJIL 123 (1936). More detail appears in H. TUTAS, NATIONALSOZIALISMUS UND EXIL: DIE POLITIK DES DRITTEN REICHES GEGENUBER DER DEUTSCHEN POLITISCHEN EMIGRATION 1933-1939, at 191-94 (1975); D. BOURGEOIS, LA TROISIEME REICH ET LA SUISSE, 1933-1941, at 53-57

(1974). 145 For a participa;]t's account of the affair, in which two British agents were lured to the Dutch border and kidnaped, see S. PAYNE BEST, THE VENLO INCIDENT (1950). 146 The accuracy of Mein Kampf as a guide to Hitler's foreign policy is emphasized in K. BRACHER, supra note 4, at 238,288-89; and E.JACKEL, supra note 137, ch. II. As early as 1933, Herbert Kraus had observed that the idea of legal equality of states was hard to reconcile with the National Socialist program, in particular with the idea of a "middle Europe" under German

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the first theoretical justifications for a greater than equal position for Germany were being developed by German international lawyers. In 1939 Carl Schmitt, still striving for the position of Hitler's chief lawyer, wrote a book propagating the idea of Grossraum (Grand Space).147 That idea had its roots in the geopolitical ideology developed by Karl Haushofer. Within a Grossraum one state would be entitled to hegemony on the basis of its posses. sion of a powerful political idea. The hegemonic power would have the right to interfere in the internal matters of subordinate states within the Grand Space so as to bring them into harmony with the grand design. External states would have no right to interfere in the conduct of affairs within the Grand Space. Schmitt had the audacity, or so it may seem to Americans, to regard the proposed hegemony of Germany in Europe as equivalent to the position of the United States in the Americas under the Monroe Doctrine. 148 Schmitt's rivals put forth a competing theory, that of Lebensraum (Living Space)!49 Germany, as a racially superior state, was entitled, in a Neo-Darwinian way, to expand spatially as far as its biological needs carried it. It could either sweep the territory clean of other peoples or allow them to coexist with Germans on whatever terms it chose. The latter theory came to gain ground at the higher levels of the Nazi state because it corresponded so closely to what Hitler had in mind for Eastern Europe, for the ghastly work dOne by the army and the security forces in Poland and the Soviet Union. 150 This style of thinking was designed to stiffen the will of young Germans to carry out those measures. It was, of course, totally counterproductive as far as neutral or hostile foreign countries were concerned. It was picked up by foreign propagandists as a useful focal point for warnings about what one could expect from a German victory in the war. But the last loyal partisans of Lebensraum were still singing its praises as the Allied armies probed the frontiers of the old Germany in late 1944. 151 State succession issues played a role in the international law discussions of the Nazi period. A few Germans were drawn toward the concept that the

leadership. Die Krise des zwischenstaatlichen Denkens (1933), reprinted in INTERNATlONALE GEGENWARTSFRAGEN-V OLKERRECHT-STAATENETHIK-INTERNATIONALPOLITIK, AusGEWAHLTE KLEINE SCHRIFTEN VON HERBERT KRAUS 230,247 (1963). It is there stated that some of his thinking in this paper contributed to the removal of Kraus from his chair a few years later. 147 C. SCHMITT, VOLKERRECHTLICHE GROSSRAUMORDNUNG MIT INTERVENTlONSVERBOT FUR RAUMFREMDE MACHTE: EIN BEITRAG ZUM RECHTSBEGRIFF 1M VOLKERRECHT (1939). F. NEUMANN, supra note 135, pt. 1, ch. V, finds the sources ofthe Greater German Realm idea in references to the Holy Roman Empire (First Reich), geopolitics, population pressure theory and the new international law. 148 Hitler used the analogy to the Monroe Doctrine in an address to the Reichstag on April 28, 1940. Hans Frank warned Schmitt not to claim authorship of the idea.]. BENDERSKY, supra note 2, at 258-59. See comments in F. NEUMANN, supra note 135, at 156-60. 149 On Schmitt's ri~als, see J. BENDERSKY, supra note 2, at 259-61. Leading works on the Lebensraum idea were Best, ViJ1kische Grossraumordnung, 10 DEUTSCHES RECHT 1006 (1940); Spanner, Grossraum und Reich, 22 ZoR 28 (1942). 150 On the translation of international law concepts of Reich and Grossraum into military propaganda, see Messerschmidt, supra note 1, at 89. 151 Kiichenhoff, Grossraumgedanke und volkische Idee im Recht, 12 ZAoRV 34 (1944).

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Third Reich represented a clean break with the past and was therefore not bound by commitments that the illegitimate Weimar Republic had undertaken. 152 This route was not, however, intensively pursued. Significantly, the Soviet Union also abandoned the argument after initially taking it more seriously than the Reich. 153 Hitler's Foreign Ministry did have to cope with the argument that, having integrated Austria into the Reich, Germany was responsible for its external debts. The technicians of the international law section of the Foreign Ministry must have enjoyed pointing out to the British and American claimants that their states had not taken responsibility for the external debts of the Boer Republics and of Texas, respectively.154 Problems of the continuation of state status were created by Germany after 1939 when it successively attacked and occupied Poland, Denmark, Norway, Holland, Belgium, France, Yugoslavia and, in the end, Hungary and Italy. Germany treated them in different, inconsistent, ways; it annexed parts of Poland, treated other states as countries under military occupation, and left still others some autonomy. In most of these cases, governments in exile were put together to assert the continuity of government and the state. 155 Most of them fielded armies, navies and air forces to fight against the Reich. These forces, according to some Nazis, were not legitimate combatants since they did not represent recognized states and governments. Indeed, in most cases they were fighting against regimes recognized by the Nazis such as those of Petain and Quisling. In general, the internationalists persuaded the German command not to regard the "Free French" and their like as outlaws, although harsh treatment was in store for Italians who followed the Badoglio regime after the coup of 1943, rather than Mussolini's rump regime at Salo. The Binding Quality of International Law If the nature of a state was as described in Nazi theory,"what basis could underlie a state's obligation to follow the rules of international law? For some National Socialist thinkers, the answer was that there was none. If the Volk 152 The thesis that the Weimar Republic was so illegitimate as to cause its acts, including its treaties, to be void was advanced by Helmut Nicolai, before 1933 the head of the party's legal office. H. NICOLAI, DIE RASSENGESETZLICHE RECHTSLEHRE, GRUNDZUGE EINER NATIONALSOZIALISTISCHEN RECHTSPHILOSOPHIE 56-57 (3d ed. 1934). 153 On Soviet doctrines as to noncontinuity between the tsarist and Communist states, see K. GRZYBOWSKI, SOVIET PUBLIC INTERNATIONAL LAW: DOCTRINES AND DIPLOMATIC PRACTICE.92-95 (1976). 154 Garner, Questions of State Succession Raised by the German Annexation of Austria, 32 AJIL 421 (1938); and more recently, Hoeflich, Through a Glass Darkly: Reflections upon the History of the International Law of Public Debt in Connection with State Succession, 1982 U. ILL. L. REV. 39, 63-65. The correspondence was published in 1 G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 543-48 (1940). 155 For a review of these events from an Allied perspective, see Oppenheim, Governments and Authorities in Exile, 36 AJIL 568 (1942). The Nazi position that these states had ceased to exist through conquest (debellatio) is explored in D. MAJER, "FREMDVOLKISCHE" 1M DRITTEN REICH. EIN BEITRAG ZUR NATIONALSOZIALISTISCHEN RECHTSSETZUNG UND RECHTSPRAXIS IN VERWALTUNG UNDJUSTIZ UNTER BESONDERER BERUCKSICHTIGUNG DER EINGEGLIEDERTEN OSTGEBIETE UND. DES GENERALGOUVERNEMENTS (1981).

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was the highest and finest institution of common life, how could it owe duties to follow rules laid down by some more universal system? On that theory, there was nothing higher than the foreign relations law of the Volk, those rules which served its interest and which might from time to time coincide with generally accepted practices of states. But where they diverged, the rules of the Volk would predominate. This case was put most strongly by Ludwig Schecher in 1934. 156 His argument against the existence of international law reminds one of the straw men erected by English and American law professors when they wish to demonstrate that international law is really "law" despite Austinian arguments about the absence of a sovereign power. Logical though Schecher's argument on international legal obligation might be, it was strong medicine for internationalists. 157 It seemed to undermine the conceptual basis of their entire field. Furthermore, some of them argued, Germany could not afford to take that approach while it was weak and underarmed; it needed the protection of international law against the use of force by stronger states. How could one argue that Versailles was unlawful if there was no internationallaw?158 Thus, these teachers sought to reconstruct a basis for international law out of a variety of materials. Some took the position that there could at least be a common law among states that shared Aryan blood and thus belonged to the same race, even though they were made up of several Volker. 159 This idea was never a success among British and Scandinavian internationalists, who might have been eligible for such membership. Others tried to develop the idea that there was some sort of international GesellschaJt, though no GemeinschaJt, at least among European "advanced" states, which could generate rules for its members. 160 The Soviet Union naturally could not be a party to any such GesellschaJt-except between 1939 and 1941-because of its unique claim to the full truth and its racial inferiority. 161 Other internationalists simply bypassed the problem and U6

L. SCHECHER, OEUTSCHESAusSENSTAATSRECHT 136 (1933):

In a complete sense the new principle of the state as the organization of a "national body set aside by its folk qualities, closed to outsiders by its race," is unthinkable without the primacy of state law. The unqualified connection of all members of a Yolk with their Yolk as the highest value on earth can, as a matter of law, be established only on the basis that the national state is the highest creator of order for its total living relationships, upon which no legal limitation of its competence is binding. (emphasis in original) 157 A whole mass of critiques of Schecher is listed in E. BRISTLER, supra note I, at 67 -68. See also H. MOSLER, DIE INTERVENTION 1M VOLKERRECHT 77 (1937). In Mosler's case, this asser-

tion of the reality of international law seems to have been part of an effort to keep Nazism from feeling free from the limits of that law. In his speech at the 50th anniversary of Mosler's doctorate, Tomuschat noted that Mosler advocated the legitimacy of intervention in cases of extensive religious persecution, etc. B. KNOBBE-KEUK, C. TOMUSCHAT & H. MOSLER, REDEN ZUM 50. OOKTORJUBILAUM 9, 11 (1988). ' 158 H. MOSLER, supra note 157, at 78. Ug This was the co!}c1usion drawn by Preuss, supra note I, at 677. F. GIESE & E. MENZEL, supra note 138;at 35, sought to refute this by pointing to the anti-Comintern pact of 1937 with Italy and Japan. 160 On the European community of nations, see F. GIESE & E. MENZEL, supra note 138, at 23-25 and 35. They noted Hitler's use of the term "the European family of nations." 161 Maurach, Die Sowjetunion-Ein Mitglied der Vo1kerrechtsgemeinschaft?, 21 Z FOR VR 19 (1937); see also H. MOSLER, supra note 157, at 71-72; A. VERDROSS, supra note 135, at 54,

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wrote about a particular rule of international law as if it mattered, as if it had binding effect. The Binding Quality of Treaties

The same ultimate jurisprudential problem affected obligations under treaties: But here the political cost of denial was even higher. German policy depended heavily upon the belief by other states that the new Germany's commitment to the agreements Hitler had made was trustworthy. German writers tried to develop a theory of law that would enable them to make distinctions in this regard. They floated some verbiage about Teutonic ideas of the oath and fidelity toward those with whom one maintained such a relationship.162 But the scope of this justification was limited: How could it bind non-Teutons? How could it create commitments toward outsiders? In fact, German treaty law thinking was chiefly distinguished by its excuses for terminating treaties. A highly selfjudging version of the clausula rebus sic stantibus was advocated by several writers, who underlined the negative aspects for a sovereign state of being bound by the unanticipated consequences of its commitments. 1611 To outsiders, this view had overtones of Chancellor Bethmann-Hollweg's damaging remarks in 1914 about the "scrap of paper" quality of the Belgian neutrality agreement l64-especially when rebus sic stantibus was asked to justify violating the Munich accord concerning Czechoslovakia before the ink was dry.16S Germanjurists focused their attention on the inequality of certain treaties, once again singling out the Versailles settlement. They argued that those conventions treated Germany as a lesser state, in violation of the principle of sovereign equality, and, in particular, desecrated its honor (as by forbidding it an equal right to armaments). Interwoven with this strand of reasoning was the argument that, like contracts, treaties that are imposed by force are void. 166 One of the ironies of history is that when the argument was picked up after 1945 and incorporated in the Vienna Convention on the Law of Treaties, .the chief example used was Hitler's imposition of the German protectorate over what was left of Czechoslovakia after Munich. 16? The in-

denying that the USSR was "a normal state within the meaning of international law"; and E. BOCKHOFF, VOLKERRECHT GEGEN DEN BOLSCHEWISMUS (1937). 162 Walz, Der Treugedanke im V6lkerrecht, 4 DEUTSCHES RECHT 521 (1934). 16S A classic early piece was E. KAUFMANN, DAS WESEN DES VOLKERRECHTS UND DIE CLAUSULA REBUS SIC STANTIBUS (1911). 164 One writer of the Third Reich had the temerity to repeat the 1914 phrase. Keller, Vblkerrecht von Morgen, 17 Z FUR VR 342, 366 (1933). 165 A. VON WEGERER, ORIGlNSOF WORLD WAR II 44 (1941): "It would have been absurd to demand of Hitler that he renounce a policy which was in the interests of German safety, now that conditions were changed. The declaration made at Munich related to the time when it was made . . . . " 166 Bleiber, AuJgezwungene Vertriige im Vblkerrecht, 19 Z FUR VR 385 (1935). 167 RESTATEMENT, supra note 136, §331 Reporters' Note 2, referring to Articles 51 and 52 of the Vienna Convention.

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equality-coercion arguments did have the practical advantage of not being completely open-ended, as rebus sic stantibus would be; German jurists could argue that some pre-Reich agreements were invalid but that confidence could be placed in Hitler's free commitments. Particular rancor was demonstrated by the Nazis against international organizations, which they identified with Jewish, pacifist internationalism. 168 Their disdain was aimed not only at the League of Nations, the institution that grew out of, and enforced, the Versailles settlement, but also at such foreign organizations as the American Society of International Law, which they regarded as a Semitic front. 169 International Law and Individuals

As of 1914, it was clearly understood that individuals were involved in international law only insofar as they were nationals of states that could protect them, if they chose, against other states. 170 However, the status of ethnic and religious minorities had often aroused conflict and controversy and had occasioned some special solutions, particularly in Eastern Europe and the Balkans. The Versailles settlement, even while creating new boundaries that gave rise to new minorities, attempted to defuse the issues by establishing multilateral machinery to handle them peacefully. 171 A minorities committee, the Council of the League of Nations and the Permanent Court of International Justice all played roles in this process. Germans took an active part, mainly in asserting the rights of Germans who found themselves in Polish territory. With the Nazi seizure of power, all of this changed. At the start, Germans objected to the emphasis of minority concepts on the protection of individuals because they believed that the collective aspects of the minority groups should be stressed. 172 Hitler was not content with protecting German minorities but used them offensively in extending the German Grossraum at the expense of Czechoslovakia, Poland and others (but not at the expense of Fascist Italy vis-a.-vis the Tirol).173 This expansionist policy was justified to Germans as being a corollary of the superiority of their race, which was entitled to the space in question. The Nazis had some difficulty in explaining to the outside world, including the League of Nations, why Jews were not a minority in the legal sense, particularly after they were excluded from membership in the German Volk

168 For a Nazi view of the League as a quintessentially Jewish organization, see N. GURKE, supra note 92, at 18-20. 169 /d. at 17-18, describes the Society as the creation of a pacifist Jew, Oscar Straus. 170 Schoen, Zur Lehre von den Subjekten des ViJ"lkerrechts, 23 Z FUR VR 411 (1939). 171 For reviews of!he League minority protection system, see J. ROBINSON, WERE THE MINORITY TREATIES A FAILURE? (1943); P. DE AZCARATE, THE LEAGUE OF NATIONS AND NATIONAL MINORITIES: AN EXPERIMENT (1945). 172 Walz, Neue Grundlagen des Volksgruppenrech-,s, 23 Z FUR VR 150 (1939). I73 1 G. WEINBERG, supra note 3, at 17; C. LATOUR, SUDTIROL UND DIE ACHSE BERLIN-RoM

1938-1945 (1962).

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and hence from the benefits of German nationality. 174 Nazi scholars emphasized that Yiddish was not an independent language and that Jews were therefore not a true minority; they also asserted that Jews wanted assimilation, not minority status. 175 Before 1933, German writers for the most part had accepted the idea that the Jews of Eastern Europe constituted a minority, while debating the degree of their assimilation. Hitler rejected the whole idea of assimilation as a threat to the integrity of the assimilating race. 176 The treatment of Jews by Germany raised international law problems even in its earlier, less lethal stages. It was actively debated with foreign lawyers whether Germany's depriving Jewish nationals of citizenship, downgrading them to mere nationals, violated any international law rule. In As of that time, those, like Berthold von Stauffenberg, who argued that it did not were probably correct. His use of analogies emphasizing the racist characteristics of U.S. nationality law was telling. There was a series of exchanges with the United States over Germany's treatment of American citizens regarded by the Reich asJews and subject to discriminatory legislation. 178 The Department of State argued that the Reich's actions violated the national treatment provisions of the U.S.-German treaty. More fundamentally, of course, as it grew more barbaric, the Nazis' treatment ofJews inflamed public opinion to varying degrees in different foreign countries, which contributed to the rigor of Germany's enemies in World War II and to the later establishment of the international law concept of genocide. 179 174 The most elaborate exposition of Nazi ideas about minorities (relabeled Volksgruppen or "groups of people") is in F. GIESE & E. MENZEL, supra note 138, ch. II. The explanations why Jews were not a minority start at p. 44. For an attack on League of Nations efforts, under the leadership ofJames McDonald, to assist Jewish refugees as oppressed minorities, see Gilrke, Mr. McDonald und die judenfrage im Deutschen Reich, 2 VOLKERBUND UND VOLKERRECHT 665 (1935). See also H. TUTAS, supra note 144, at 205-391. 175 On the language issue, see F. GIESE & E. MENZEL, supra note 138, at 43: "Yiddish is among the Jews in the German Reich not a means for expressing and developing an independent community life. It is all in all questionable whether it can be spoken by the Jews in the Reich" (quoting H. GERBER, MINDERHEITENRECHT 1M DEUTSCHEN REICH 53 (1929». On the Jewish desire for assimilation in Germany, see id. at 48<-49. 176 Thus, Gilrke said that "National Socialism has rejected assimilation with all possible decisiveness." He quoted Hitler as saying:

For National Socialism sees the forced assimilation of one people into another not only as not a political aim worth pursuing but, as in effect a danger to the inner unity, and hence the strength, of a people in the long run. Its teaching therefore dogmatically rejects the idea of national assimilation. N. GORKE, GRUNDZOGE DES VOLKERRECHTS 50 (1936). 177 Stauffenberg, Die Entziehung der Staatsangehiirigkeit und das ViJlkerrecht, 4 ZAoRV 261 (1934). This article is a response to the denunciation of the legislation in Scelle, A Propos de la Loi allemande du 14 juillet 1933 sur la dechiance de la nationalite, 29 REVUE CRITIQUE DE DROIT INTERNATIONAL 63 (1934). Reluctantly, Garner, Recent German Nationality Legislation, 30 AJIL 96,99 (1936), concluded that it "probably cannot be successfully argued that [the law 1violates any positive prescription of the law of nations." 178 3 G. HACKWORTH, supra note 154, at 642-46 (1942). 179 On the origin of the concept of genocide in Nazi practice, see R. LEMKIN, AXIS RULE IN OCCUPIED EUROPE (1944).

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THE LAW OF WAR

Jus ad Bellum

Although the Kellogg-Briand pact had the nations of Europe forswearing war as an instrument of national policy,180 by 1933 that idea had not penetrated deeply into the minds of European statesmen. It certainly played no role in the mind of Adolf Hitler. Still, war weariness was endemic throughout Europe and there were severe political costs to be faced by anybody seen to be a warmonger. Within Weimar Germany these ambiguities produced a peculiar division. Many Germans tolerated the peace of Versailles just as they tolerated the republic, even as they hoped for major changes in Germany's position within that settlement, by peaceful means if possible. 181 A few German international lawyers were quite pacifist in orientation and wrote about the preservation of peace as a major goal, even necessity. They were the ones upon whom the ax fell. Schiicking and Strupp were early victims; Wehberg had years before gone to Switzerland. 182 After the pacifists' expulsion, international lawyers of the new breed repeatedly sounded bellicose notes, preparing their students for war.183 A Volk could not be inhibited from expressing itself and reaching its inherent goals through war. Attaining a Grossraum adequate for the German Volk, at whatever expense to its inferior occupants, was an end that justified the violence of the means. International lawyers, of course, fought Germany's case in detail, asserting that each of the outbreaks of hostilities was not Germany's fault, that it was due to the aggression of the adversary. But it is an absolute understatement to say that Germany's Wilkerrechtler after 1933 did nothing for the cause of peace. In sum, they extended Carl Schmitt's emphasis on the friend/enemy dichotomy, with its conclusion that one owed no legal obligations to one's enemy, to the international sphere. 184

ISO 46 Stat. 2343. 2 Bevans 43.94 LNTS 57. German writers tried to use the Kellogg pact (as they called it. giving no credit to Briand) to argue that Britain and France had acted illegally in coming to the aid of Poland and that it had not changed the rules on neutrality so as to justify U.S. aid to Britain. See Bilfinger. Die Kriegserkliirungen der Westmiichte und der Kelloggpakt. 10 ZAoRV 1 (1940); Schluter. Kelloggpakt und Neutralitiitsrecht. 11 id. at 24 (1942). lSI But to be seen as active in the policy "fulfillment" of Versailles was to be made atarget. sometimes of bullets. See K. EpSTEIN. MATTHIAS ERZBERGER AND THE DILEMMA OF GERMAN DEMOCRACY 379-89 (1959). IS2 On German pacifists. see C. RAJEWSKY & D. RIESENBERGER. supra note 47. For data on Schiicking. see D. ACKER. supra note 36; on Wehberg. see the memorial symposium in 56 FRIEDENSWARTE 297 (1962). The hostility of Nazis toward pacifists comes through strongly in their reaction to the grant of the Nobel Peace Prize to Ossietsky. by then in a concentration camp. 3 VOLKERBUND UND VOLKERRECHT 632 (1937). IS3 Thus. T. MAUNZ. GELTUNG UND NEUBILDUNG MODERNEN KRIEGSVOLKERRECHTS 18 (1939). moves from.,the Grossraum theory of Carl Schmitt to the proposition that a war to establish a Grossraum cannot be an unjust war. But the academic literature never descended to the linguistic violence against. in particular. the peoples of Eastern Europe that one finds in straight Nazi propaganda. IS4 Schmitt. Totaler Feind. totaler Krieg. totaler Staat. 4 VOLKERBUND UND VOLKERRECHT 139 (1937).

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Jus in Bello

From early in the century, a special preoccupatiqn of German jurists was the law of war. Before 1939, most of their analysis was fairly orthodox, restating the rules of the 1907 Hague Conventions and of the customary law of war .185 For the greater part, that discussion went private after 1939. Some articles in the journals examined the rules of warfare, chiefly the laws relating to war at sea such as the law of prize, and the law of economic warfare, and at least one article in a journal of the Foreign Ministry'S scholarly arm purported to demonstrate the inapplicability of the rules to a war with the Soviet Union. 186 Within the German establishment, however, there were lively debates of great potential significance to human lives. International lawyers in the legal office of the foreign division of Military Intelligence, as well as some in the German branch of the International Red Cross and in the Foreign Office, tried to argue for the application of the rules of war, principally those embodied in the Hague Conventions of 1907 and the Geneva Convention of 1929. 187 They also sought to persuade their chiefs that those rules had become customary international law . The upshot was a sharp difference in the behavior of the German armed forces as between the eastern and western theaters. With some well-remembered exceptions, German behavior in the west was within hailing distance of the received rules. 188 In the east, the rules were jettisoned completely. Nazi racial and imperial concepts, which had been reflected in the literature of the new international lawyers about the Grand Space and Living Space, made it possible to think of the war in the east as a phenomenon so different that the rules did not apply there. 189 F. GIESE & E. MENZEL, DEUTSCHES KRIEGSFOHRUNGSRECHT (1940). Grewe, Die neue Kriegsphase, 8 MONATSHEFTE FOR AUSWARTIGE POLITIK 748 (1941). Grewe later privately acknowledged the error of this analysis, blaming it on inadequate information. Weber, supra note 105, at 365 n .. 3. 187 For a general overview of efforts to maintain the laws of war, see Roediger, Versuche zur Wahrungdes humanitiiren Vb1kerrechts nach 1933, in DEUTSCHES GEISTESLEBEN UND NATIONALSOZIALISMUS 178 (A. Flitner ed. 1965). On Moltke's work, see van Roon, Graf Moltke als Vb1kerrechtler im OKW, 18 VIERTELJAHRSHEFTE FOR ZEITGESCHICHTE 12 (1970). The argument that the Hague Convention rules became customary international law is the crux of the famous memorandum on treatment of Russian prisoners of war prepared by Moltke. See note 200 infra. The argument was current among German writers in the period before 1940. N. GORKE, supra note 176, at 55. See also the discussion of customary laws of war in Schmitz's lecture notes, cited supra note 59, at 43-45a. For a historical perspective, see Meron, The Geneva Conventions as Customary Law, 81 AjIL 348 (1987). 188 The chief exceptions were the commando order, the execution of escaped Allied fliers (the Sagan episode) and the Malmedy massacre of prisoners. For a summary of German western front crimes, with a description of the argumentation these-unlike eastern crimes-aroused at higher echelons, see R. CONOT,jUSTICE AT NUREMBERG 307-18 (1983). For a comparison of the treatment of prisoners of war, see A. DURAND, STALAG LUFT III: THE SECRET STORY 125-41 (1988). 189 The most detailed account as to how the German military leaders were persuaded to accept the standards Hitler set for the conduct of the war in the east appears in M. MESSERSCHMIDT, DIE WEHRMACHT 1M NS-STAAT: ZEIT DER INDOKTRINATION 390-422 (1969). 185

186

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Rules on occupation. The basic rules of the Hague Convention require that "the lives of persons, and private property . . . must be respected."190 It is further specified that requisitions may be made only for the use of the army of occupation and that the territory may be exploited only to the extent of use as a "usufructuary" (Americans might say as a life tenant). In fact, the Nazis treated the territories they overran in quite different ways: Theyannexed parts of Czechoslovakia, Poland, Alsace-Lorraine and Eupen-etMalmedy. The rest of Poland was termed a General-Gouvernement under Hans Frank. Bohemia-Moravia became a protectorate. France was divided into occupied and unoccupied zones and most other territories were treated as occupied. 191 Moltke and others argued for the application of the Hague rules in these territories, even while conceding that on the economic side, some alterations had to be made to counterbalance the supply problems created by the British blockade. 192 While the occupation in the west was at first quite orderly, the occupation of Poland and the Soviet Union was brutal from the beginning. After 1942, conditions in the west, particularly for non-Aryans, grew rapidly worse. Thus, in all quarters there were such violations as deportations, use of forced labor, and reprisals against civilian hostages. The arguments of the lawyers had very limited impact. The treatment of prisoners. German professional officers in 1939 should have been familiar with the provisions of the Hague and Geneva Conventions, especially those who had fought in World War I, a war in which the Hague rules were generally followed. However, one takes with a grain of salt General JodI's testimony at Nuremberg that he kept a copy of them on his desk at all times, and German officers' education seems on occasion to have been deficient in this respect. 193 Here again, the group of German international lawyers fought a series of battles to keep Germany in compliance. Acting in an atmosphere of lawlessness and suspicion, they bravely took up the cudgels for helpless clients. Often they mixed the legal points with pragmatic arguments. Admiral Canaris even warned his emissary, General Lahousen, not to speak of humanitarian objections while on a mission to the high command, lest he be laughed into oblivion. 194 190 Art. 46, Regulations Respecting the Laws and Customs of War on Land, Annex to Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, TS No. 539, 1 Bevans 631. 191 On Poland's status, see Klein, Zur Stellung des Generalgouvernements in der Verfassung des Grossdeutschen Reichs, 32 ARCHIV DES OFFENTLICHEN RECHTS 227 (1940). 192 Mueller, Kriegsrecht oder Willkiir? Helmuth James, Graf von Moltke und die Auffassungen im Generalstab des Heeres iiber die Aufgaben der Militiirverwaltung vor Beginn des Russlandkrieges, MILITARGESCHICHTLICHE MITTEILUNGEN, No.2, 1987, at 125, 138. 193 For JodI testimony, see 15 IMT, PROC. 341 (1948). The relative adherence to the Hague rules in World War I is demonstrated by the contrast in prisoner-of-war death rates in the two conflicts. C. STREIT, KEINE KAMERADEN, DIE WEHRMACHT UND DIESOWJETISCHEN KRIEGSGEFANGENEN 1941-1945, at 10 (1978). As an example of ignorance, Moltke cited a German general's answer to a-surrendering Dutch officer's question whether Germany would follow the Hague rules: "General, did you learn about international law in school? I didn't." Van Roon, supra note 187, at 17. 194 2 IMT, PROC. at 456 (1947).

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In vain the lawyers in the Abwehr protested against the commando order, under which commandos were to be executed and not treated as prisoners.195 They noted that this was a clear violation of the Hague rules since commandos were in uniform and were commanded by responsible officers. They also pointed out that since Germany's own commando operations were the responsibility of the Abwehr, they would suffer the retaliatory moves of the enemy. The lawyers had better luck in convincing the command that prisoners taken while fighting in the service of governments in exile should be treated as combatants even if there were substitute regimes in their homelands that the Nazis had recognized. 196 Except with respect to the Italians who followed Badoglio and not Mussolini, that interpretation was generally accepted in the west}97 On the eastern front, the lawyers had little success. The conception of this war as totally different had taken possession of the army high command as well as of Himmler's men. While there was some protest by army officers at what they witnessed in Poland in 1939, events in Russia won not only acquiescence but also collaboration by the army.198 At the start of the Russian campaign, various efforts were made, with the support of Switzerland and other neutral powers, to have the Hague rules put into effect even though the Soviet Union was not a party to that treaty. The Soviet Union was willing to make the necessary moves, but Hitler was in no mood to agree. 199 The instructions to German troops on the treatment of Russian prisoners constituted an open invitation to kill or torture them. 20o In 1942 Moltke, through Canaris, made an attempt to have the instructions modified. The arguments included both the legal view that the Hague-Geneva rules had become customary law that was binding on nonparties, and pragmatic considerations such as the impact on German army discipline, the loss of usable manpower, the danger of retaliation, a loss of prestige among neutrals and heightened resistance on the part of Russians. Ironically, these lawyers, who did not wish Hitler's regime well, were clearly right in thinking that the war in Russia would have been carried out more successfully on a lawful basis. 15 IMT, PROC., supra note 193, at 481, 483-88. United States v. List, 11 TRIALS OF WAR CRIMINALS, supra note 32, at 1078-1112. See van Roon, supra note 187, at 51-54; C. ROUSSEAU, LE DROIT DES CONFLITS ARMEs 74-75 19&

196

(1983). 197 A. SEATON, THE GERMAN ARMY, 1933-1945, at 209 (1985), describes the treatment of Italian prisoners by the Wehrmacht after the fall of Mussolini. United States v. List, 11 TRIALS OF WAR CRIMINALS, supra note 32, at 1078-1112, 1291-94. 198 C. STREIT, supra note 193, at 296-300; O. BARTOV, THE EASTERN FRONT, 1941-45: GERMAN TROOPS AND THE BARBARIZATION OF WARFARE (1986). 199 C. STREIT, supra note 193, at 224-37. 200 The instructions are summarized in 1 IMT, PROC. 229 (1947), and given in full in United States v. von Leeb, 11 TRIALS OF WAR CRIMINALS, supra note 32, at 13-15. For the text of the Canaris memorandum, see 1 IMT, PROC. at 232; 36 id. at 317 (German original text); United States v. von Leeb, 11 TRIALS OF WAR CRIMINALS at 2-5. On Moltke's authorship of the Canaris memorandum, see HELMUTH JAMES GRAF VON MOLTKE: VOLKERRECHT 1M DIENSTE DER MENSCHEN 258 (G. van Roon ed. 1986).

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But Keitel disagreed and wrote on the memorandum that these views represented an outmoded view of chivalric warfare that had nothing to do with this ideological war. 201 Consequently, mistreatment of Russian prisoners continued, their condition only slightly improved by the increasing need for their labor. The marginal comments of Keitel were read to the Nuremberg court by the prosecution and, with the testimony of General Lahousen, did much to assure him the death penalty.202 Other questions. The rules of naval warfare continued to raise issues, basically those foreshadowed in the First World War about the legality of sinking merchant ships without warning and establishing sink-on-sight zones. 203 Invasions of neutral waters, as in the British capture of the Altmark in a N orwegian fiord in 1939, gave rise to controversy. Germans wrote articles about the destroyers-for-bases arrangement between the United States and Britain, and American naval activity in support of Britain before the U.S. entry into the war, among other matters. 204 Notably, Germany was not always wrong in its criticisms of the behavior of other countries vis-a.-vis the laws of war. The actions of neutrals, above all the United States, seemed to depart from the prohibitions under the old rules. 205 Lend-lease, the destroyer bases deal, the Atlantic antisubmarine patrol and other actions at least arguably represented such departures. Particularly on the eastern front, it was not only the German forces that ignored conventional and customary restraints on violence. 206 The Nuremberg Tribunal itself found some color to the proposition, maintained by the admirals' defense counsel, that the rules of submarine warfare had been relaxed on all sides in the face of the development of naval tactics. 207 VIII.

CONCLUSION

The abiding interest in the encounter of National Socialism with internationallaw lies not in its doctrinal impact on the law of nations but in its role as 201 19 IMT, PRoc. 412 (1948). 2021d. 203 See, e.g., Schmitz, Sperrgebiete im Seekrieg, 8 ZAoRV 641 (1939). 204 Interestingly, articles on specific wartime problems tended not to appear in the traditional international law journals but in the more propagandistic output of the Institut fiir Auswartige Politik, transformed into the Deutsches Institut fur Aussenpolitische Forschung. Thus, the destroyer bases deal was signaled in the Zeitschrift fur ausliindisches oilentliches Recht und Vo'lkerrecht merely by the reprinting of the English text of the notes, but by Berber's institute with W. GREWE, ZERSTORER GEGEN STOTZPUNKTE (1942); and Grewe, Das Schicksal der Neutralitlit im europiiischen Krieg und im zweiten Weltkrieg, 1943 JAHRBUCH DER WELTPOLITIK 86, 99. See Weber, supra note 105, at 303-04. 205 For a recent German review of this issue, see Gruchmann, Volkerrecht und Moral: Ein Beitrag zur Problematik der amerikanischen Neutralitiitspolitik, 1939-1941,8 VIERTELJAHRSHEFTE FOR ZEITGESCHICHTE 384 (1960). A major contemporary German tract was F. BERBER, DIE AMERIKANISCHE NEUTRALITAT 1M KRIEGE 1939-1941 (1943). Berber was able to cite such American writers as Borchard, Briggs and Wright in support of his arguments. See id. at 24-25. 206 See A. DE ZAYAS, note 78 supra. 207 See the final judgment of the Tribunal, 1 TRIAL OF THE MAJOR WAR CRIMINALS 313 (1947),6 F.R.D. 69, 169 (1946), stating that Donitz was not assessed as to his sentence on grounds of breaches of the international law of submarine warfare. As to Raeder, see 1 TRIAL, supra, at 317, 6 F.R.D. at 171.

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an episode in intellectual history. In terms of Nazism's influence on the corpus of international law , one can say that it was zero, except in a negative sense. The determination of Hitler to wipe out races he characterized as inferior gave rise to the Genocide Convention. His willingness to wage war against his neighbors set the stage for the Judgment in the Nuremberg war crimes trial and the prohibition on the use of force in Article 2(4) of the United Nations Charter, which reflected the post-World War I efforts of Kellogg and Briand. The Fiihrer's choice of methods in waging those wars caused a tightening of the Hague and Geneva rules. But there is something to be learned from the process used by the Nazi movement to make its international jurists produce the doctrines that it wanted and from the way that the international law community in Germany responded. The seizure of power in 1933 confronted a small community of internationa I lawyers whose thinking had been shaped by working on a body of law created only in part by Germany itself. They were linked in various ways with colleagues outside Germany whose writings they read and reviewed, whom they met at conferences and with whom they dealt on behalf of their government. They were also part of the special and separate German academic community. The responses of the universities, institutes and other institutions were at best passive, and sometimes welcoming, to the new order of things. The responses of individuals are distributed over a fairly wide range. One can say that the internationalists behaved marginally better than other German jurists. Of those who did not sympathize with Nazism, some had little maneuvering ground since their racial heritage or political activities had indelibly stamped them as worthless in the party's eyes. Some of those who survived the first Nazi purge were on the defensive because of their shortcomings from the Nazi perspective. A few internationalists resisted, at great cost to themselves in the end, although most had preserved their position from which they could resist only by rendering services to the state system. A number withdrew from active participation in contemporary international law studies. A few did manage to maintain some contact with foreign literature and institutions. 208 The collaborators produced the type of writing the Nazis desired. In the first stage, the Nazis wanted the world and Germans to believe that they were committed to peaceful change. It was fairly easy for the establishment to produce this sort of assurance since peaceful revision of the Versailles imposition had been the goal of almost all Germans since 1919. What the publicists had more difficulty with was producing a coherent intellectual structure to serve as a bridge between racist concepts of the state and law and a meaningful international law. There is something grimly comic about the united effort to suppress Ludwig Schecher and his all-too-c1ear demonstration that under Nazism there could be no international law but only German foreign relations law. 209 208 One moving testimony to this connection is the emotional reaction of Viktor Bruns's coworkers at receiving Borchard's 1943 tribute in the Journal, supra note 29, which "transcended all the battle lines." Makarov, supra note 63, at 364 n.7. 209 See supra notes 156-57.

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After 1937, the emphasis came to be on building justifications for a new order in Europe, led by the Reich, that would be unequal and achieved by force. The old guard of internationalists, now rather few in number, seem to have been unable to bring themselves to move in this direction; hence, it was left to the younger generation, composed of men with few international contacts and intense exposure to Nazism, to carry this load. The older lawyers did continue to serve the.Reich by arguing, for example, that traditional rules of neutrality outlawed American intervention into what was happening in Europe. Did international lawyers really succeed in helping the Third Reich? They probably helped in some measure to slow the awakening of observers at home and abroad to the fact that Hitler's reworking of the European state structure was going to be more radical and violent than what had gone before. But those who wrote the critical literature outside Germany were quite hostile to what the Germans produced and it is unlikely that other foreign internationalists were much persuaded. German output after 1940 was largely for internal consumption. The denigration of Russian and other Slavic peoples that appeared in the German international law literature must have contributed somewhat to the utter ruthlessness with which Germans conducted the war in the east and to the lack of meaningful protest against those measures. On the other hand, German internationalists were further removed from the scenes of true horror than, say, the criminal lawyers, and what they wrote was less vulgarly racist than what purely domestic branches of law generated during those years. It was possible, if one was well established in 1933, to write a fairly neutral and unobjectionable type of work. But it took steady nerves to do that and to resist the temptation to curry favor by saying the "right" things. It was a frightening time in which to live and one's judgments about what people did during that time must take account of those pressures. Does this experience have implications for international lawyers in other times and places? Any affirmative suggestion must be hedged with many qualifications, for the Nazi experience was, and, one hopes, will remain, unique even for repressive and fascistic states. But some readers of the Journal may find themselves in countries where for the present the normal freedoms have been withdrawn by a military or authoritarian regime; others may find themselves in governmental positions where they are asked to do or say things that run against their conscientious views even though the state overall is not undemocratic. One might thus venture a few general observations. First, even in so-called totalitarian regimes there is some room for moral decisions, though opposition actions may have little practical effect. They may at a minimum give comfort to persons in trouble with the regime. Second, politically, failure to resign or protest will in some quarters be taken as approval of government measures as a matter oflegality or policy or both. Third, attentiori' must be paid to the dynamics of an authoritarian government, its tendency to demand more and more in the name of loyalty and to discard people of an increasingly centrist position. What is yielded today is not enough tomorrow. Fourth, it must not be assumed that by staying in

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one's governmental or academic position one can prevent even worse things from happening. The actor must take into account the fact that his or her judgment is apt to be warped by the all-too-human frailties of inertia, financial self-interest and a sense of irreplaceability. Exit is thus less apt to be the worst solution than our judgment at the time makes it appear to be. Finally, a reminder that nothing lasts forever, not even dictatorships. The Thousand Year Reich barely made it to twelve. Nowadays most military . dictatorships endure about a decade. The 70-year endurance of the Communist regime in Russia and its 40-year survival in Eastern Europe are unique. This knowledge should serve as encouragement to holding out and as a reminder that though the mills of the gods do not grind as finely as they should, they do grind. The situation of those who took indefensible positions during one period of history can be rather unpleasant when times change.

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ApPENDIX A

GERMAN FULL PROFESSORS OF PUBLIC INTERNATIONAL LAW-1933 The following table lists by university each of the full professors of public international law teaching in the winter semester of 1932-1933. Except for Walther Schucking, each taught something else as well. The primary sources are the 1931 edition of Kiirschners Deutscher Gelehrten-Kalendar and volume 117 of the Deutsches Hochschulverzeichnis. Cross-checks were made with Garner, The Nazi Proscription of German Professors of International Law (33 AJIL 112 (1938», H. Gappinger, Die Verfolgung der juristen jiidischer Abstammung durch den Nationalsozialismus (1963), various Festschriften and other sources. Some ambiguities and doubtful cases remain. We have included honorary full professors but not emeritus professors. University Berlin Bonn Breslau Cologne Erlangen Frankfurt Freiburg Giessen Gi/ttingen Greifswald Halle Hamburg Heidelberg lena Kiel Konigsberg Leipzig Marburg Munich Miinster Rostock Tiibingen Wiirzburg

Name

Year of Birth

Viktor Bruns Erich Kaufmann (honorary) Heinrich Triepel Richard Thoma Hans Helfritz Arthur Wegner Godehard Ebers Hans Kelsen Max Wenzel Friedrich Giese Karl Strupp Fritz Marschall von Bieberstein Wilhelm van Calker None PaulSchan Herbert Kraus Gerhard Leibholz Hermann Jahrreiss Carl Bilfinger Max Fleischmann Rudolf von Laun Albrecht Mendelssohn-Bartholdy Kurt Perels Walter Jellinek None Walther Schanborn Walther Schucking Ernst von Hippel Franz Exner Walter Simons Johann Bredt Karl Neumeyer Heinrich Drost Edgar Tartarin-Tarnheyden Ernst Wolgast Hans Gerber Christopher Meurer

1884 1880 1868 1884 1877 1900 1880 1881 1882 1882 1886 1883 1869 1867 1884 1901 1894 1879 1872 1882 1874 1878 1885 1883 1875 1895 1881 1861 1879 1869 1898 1882 1888 1889 1856

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The following professors were forced out:

1933-1935

1937-1939

Erich Kaufmann Hans Kelsen Albrecht Mendelssohn-Bartholdy Karl Neumeyer Kurt Perels Walther Schiicking Karl Strupp

Godehard Ebers Max Fleischmann Walter Jellinek Herbert Kraus Gerhard Leibholz Arthur Wegner

In the listing of Jewish international lawyers in Norbert Giirke, Der Einfluss judischer Theoretiker auf die deutsche Volkerrechtslehre (1938), the following

names appear from among those listed above: Fleischmann, Kaufmann, Kelsen, Neumeyer and Strupp. The classification by the Nazis of who was Jewish followed arbitrary rules of their own making; for one thing, they included those who had long been converted to Christianity. ApPENDIXB

THE JOURNALS OF NAZI INTERNATIONAL LAW

During the Third Reich there were a few journals devoted specifically to public international law. The ranking journal was the ZeitschriJt fiir ausliindisches offentliches Recht und Volkerrecht, published by the Kaiser Wilhelm Institute and edited by Viktor Bruns during the period 1933-1944. Each issue included reports on the conclusion of treaties and other international events, somewhat like the work of the American Journal of International Law.

The Zeitschrift fur Vo'lkerrecht was published by the institute at the U niversity of Kiel. Professor Walz was the editor during the Third Reich. Niemeyers ZeitschriJt fur internationales Recht was founded in 1890 and had included important liberal writers among its authors-Fleischmann, Kaufmann, Mendelssohn-Bartholdy and Wehberg. Losses among its editors were heavy and it ultimately was merged into the ZeitschriJt fur Volkerrecht, above, after its editor Herbert Kraus was forced out of academic life. Volkerrecht und Volkerbund was founded in 1934 by Professor Frey tagLoringhoven to pursue National Socialist issues of international law and policy. It ceased publication in 1938.

Some Nazi international law was published in the general-purpose organs of the new institutions. The Academy of German Law published a ZeitschriJt der Akademie fur deutsches Recht under the editorship of Hans Frank. The association of Nazi lawyers published Deutsches Recht. Hans Frank was, again, its editor in chief. For sources, see J. Fournier, La Conception nationale-socialiste du droit des gens, pp. 195-98 (1939).