Вы находитесь на странице: 1из 44

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 grad-
ual and subtle. It is in a sense a not-to-be-repeated laboratory test of how far a
r:uthless 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 scru-
tiny. 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. Al-
though a few highly useful works have appeared, mostly on limited aspects of
the scene, the field is clearly understudied. 1 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 when-
ever 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. Impor-
tant comments on earlier versions were made by Jost Delbriick, Karl Doehring, Jochen Fro-
wein, Bardo Fassbender, Leo Gross, John Herz, Norbert Horn, Theodor Meron and Christian
Tomuschat. Bardo Fassbender furnished both comments and quantities of materials not avail-
able 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].
HERZ, VOM UBERLEBEN: WIEEINWELTBILDENTSTAND I 11 (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 Doc-
trines of International Law, 7 SOC. RES. 1 (1940) (with]. Florin). Just as this article was being
completed, I was sent a copy of an anonymous piece, Nationalsozialismus und Volkerrecht, 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 , criticiz-
ing 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]. FOURNIER, LA CONCEPTION NATIONALE-
SOCIALISTE DU DROIT DES GENS (1939). See also Preuss, La Conception raciale nationale socialiste du

661
662 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 back-
ground, 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, KRIEGSURSACHENFOR-
SCHUNG 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 Grossraumord-
nung, 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].
1990] INTERNATIONAL LAW IN THE THIRD REICH 663

First, what happened between 1933 and 1945 was not inevitable. Inevita-
bility is a construct forced upon actual happenings by retrospection. How-
ever 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 ob-
servers 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 condi-
tion. 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 recol-
lections 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 tem-
porary 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 (1. 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. HILDE-
BRAND, THE THIRD REICH, ch. 4 (P. S. Falla trans. 1987); I. KERSHAW, THE NAZI DICTATOR-
SHIP: PROBLEMS ANQ PERSPECTIVES OF INTERPRETATION, ch. 4 (2d ed. 1989).
5 As to overlapping functions in the foreign affairs field, see H. A.JACOBSEN, NATIONALSO-
ZIALISTICHE 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 interna-
tionallaw issues were at stake, as in the Jacob case with Switzerland. See sources cited in note 144
infra.
664 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

relations between France and Germany alone were such that an armed con-
frontation 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.8 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 interna-
tional 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 lav-
ished on this issue by parliamentary commissions, publicists and academi-
cians. 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).
81. KERSHAW, THE "HITLER MYTH": IMAGE AND REALITY IN THE THIRD REICH 121-47
(1987); D. PEUKERT, INSIDE NAZI GERMANY: CONFORMITY, OPPOSITION AND RACISM IN Ev-
ERYDAY 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 DIPLOMA-
TIE 36 (K. Strupp ed. 1929).
10 For a review of war guilt scholarship in the interwar period, see Wendt, Ober den geschichts-
wissenschaftlichen 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).
1990] INTERNATIONAL LAW IN THE THIRD REICH 665

on Germany's behalf. The disarmament provisions were the next most spe-
cific and passionate focus, particularly in conjunction with the demilitariza-
tion 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 substan-
tial 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 Interna-
tionallawyers of the 1990s still refer to the ChOTWW Factory case, IS 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
internationallaw. 14 Finally, the new flowering of international institutions
created to administer the Versailles settlement, including the Permanent
Court ofInternationalJustice, furnished challenges for the Weimar genera-
tion 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 settlemenL I6 Mount-
ing a legalistic attack on the validity of that Treaty 'as a coerced, dictated and
unlawful imposition, the new Government began to dismantle it. In install-
ments, 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 limitationsY By plebiscite in 1935, it reintegrated the Saar
into the fatherland. 18 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.
IS Factory at Chorzow (Ger. v. Pol.), 1926-1929 PClj (ser. A) Nos. 7, 8, 9, 13, 17, 19.
14 Kriiger, Das Reparationsproblem der Weimarer Republik inJragwiirdiger Sicht, 29 VIERTEL-
JAHRSHEFTE FUR ZEITGESCHICHTE 21 (1981).
15 W. SCHUCKING & H. WEHBERG, DIE SATZUNG DES VOLKERBUNDES (3d ed. 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 ofVersaiI1es." 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 HANDBUCHj.
17 Freyberg Eisenberg, Das deutsch-englische Flottenabkommen vom 18 Juni 1935, 6
ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT [ZAoRVjl
(1937).
18 V. BRUNS, DIE VOLKSABSTIMMUNG 1M SAARGEBIET (1934); S, WAMBAUGH, THE SAAR
PLEBISCITE (1940).
666 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 neutraliza-
tion 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 Mora-
via. 23 After achieving collaboration with the Soviet Union through a nonag-
gression 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 catego-
ries, 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 sum-
mer of 1943, Germans capable of rational analysis knew that the war could
not be won. On July 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 ulld das russischjranziisische Biindnis, 6


ZAoRV 215 (1937).
20 See Customs Regime between Germany and Austria, 1931 PCIJ (ser. A/B) No. 41 (Advi-
sory 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 belollgs in a com mOil 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).
2S See Markus, Le Trait! germano-tchechoslovaque du 15 mars 1939 Ii la lumiere du droit interna-
tional, 46 RGDlP 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 ViJlkerrecht, 12 ZAoRV 1 (1944).
1990] INTERNATIONAL LAW IN THE THIRD REICH 667

II. THE INSTITUTIONS IN 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 Ameri-
can 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 through-
out 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 pro-
fessors 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 stu-
dents on an academic track. Much of the instruction for practice was con-
fided to lawyers outside the university who prepared students for the first
state, i.e., bar, examination, who guided their mandatory clerkship experi-
ence, 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 HEI-
DELBERG 1M ZUGE O'ER NATIONALSOZIALISTISCHEN MACHTERGREIFUNG (1982). On Cologne,
see F. GoLCZEWSKI, KOLNER UNIVERSITATSLEHRER UND DER NATIONALSOZIALISMUS (1988).
28 E. DOHRING, GESCHICHTE DERJURISTISCHEN FAKULTAT 190-92,222-23 (3 Geschichte
der Christian-Albrechts-U niversitiit Kiel 1665-1965, 1965).
668 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 Insti-
tute 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 per-
sonnel 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 trans-
actions from 1918 to 1933.
The Government Lawyers
The German Government also employed international lawyers in connec-
tion with its work. As of 1933, there was only one department that holds our
interest-the Foreign Ministq[. 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 im-
portance. 35

International Institutions
During the Weimar period, German international lawyers became increas-
ingly active in the international institutions that had developed as part of the

29 For the founder's own statement ofthe purposes ofthe institute and its journal, see Bruns,
1 ZAoRV, at iii (1929). See also Borchard, Death oj Dr. Viktor Bruns, 37 AJIL 658 (1943).
50 Rabel, Zur EinJilhrung, 1 ZEITSCHRIIT FUR AUSLANDlSCHES UNO INTERNATIONALES PRI-
VATRECHT 1 (1927); Dolle, FunJundzwanzig Jahre Institut Jilr ausliindisches und internationales
Privatrecht, 16 id. at 337 (1951).
51 The history ofthe 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.
52 United States v. von Weizsaecker, 12 TRIALS OF WAR CRIMINALS BEFORE THE NUERN-
BERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10, at 1184 (1949) [herein-
after TRIALS OF WAR CRIMINALS].
55 Id. at 1184-85.
54 L. GRUCHMANN, JUSTIZ 1M DRITTEN REICH 1933-1940, at 1149, 1151, 1165, 1170
(1988).
55 See part VII infra.
1990] INTERNATIONAL LAW IN THE THIRD REICH 669

Versailles settlement. In 1930 Walther Schiicking was elected ajudge of the


Permanent Court of International Justice.!l6 Viktor Bruns sat as an ad hoc
judge for Germany or Danzig on several occasions. lI7 German advocates
argued for their fatherland on several occasions when Germany was a party
to contentious matters before the Court. Germany participated in arbitra-
tions to settle matters arising from World War I, for example with the
United States. lI8 A series of commissions were set up to deal with the minori-
ties in the eastern neighbors of Germany, international waterways, the exe-
cution of the Dawes Plan, and other questions.!l9 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 ofthese was the Hague Acad-
emy 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 partici-
pated in the Institut de Droit International and the International Law Associ-
ation, again through establishment personalities. 4 !1

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

S6 D. ACKER, WALTHERSCHUCKING 1875-1935 (1970).


S7 The activities of Bruns are listed in his biographical notice to La Gour Permanente de Justice
Internationale, 62 RECUEIL DES COURS 547, 549 (1937 IV).
S8 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).
S9 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 be-
cause 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,JUBILEE BOOK, 1923-1973 (R. J. Dupuyed. 1973).
42 The first German lecturer was Triepel, Les Rapports entre Ie droit interne et Ie droit interna-
tional, 1 RECUEIL DES COURS 73 (1923).
4S 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 KURSCHNERS DEUTSCHER GELEHRTEN-KALENDAR 3829-30 (4th ed. 1931).
670 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 VersaiIIes set-
tlement was coupled with disdain for the republic to which it gave birth.
Some internationalists were Vernunftrepublikaner who accepted the new Gov-
ernment, 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. 47
By 1990s American standards, one would have to describe German faculty
members as extraordinarily authoritarian in their personal relations. Ten-
ured professors had paternalistic relations with their assistants, who worked
their way toward promotion by such tasks as doing their professor's re-
search, helping with his opinions, and administering his seminars. At its best,
the role of "doctor-father" (Doktoroater) 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 a junior's way to a chair elsewhere. Profes-
sors 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 consider-
able financial stringency since the Government could not pay its civil ser-
vants 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 ERSTEN WELTKRIEG


(1975).
46 Kempski, Gefohrdung der Wissenschaft durch die politische Macht: Rejlexionen 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 Ger,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.
Trager ed. 1984).
1990] INTERNATIONAL LAW IN THE THIRD REICH 671

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 dis-
trict attorney who found no legislative authority for the euthanasia program
and started a criminal investigation. 52 In any case, positivism would not suf-
fice for international law because it was impossible to assert that Germany
alone could create a new international law. It was necessary to enroll Ger-
man 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 aspi-
rations; but many were street fighters with no respect for academics. In a
now-famous statement, Julius Streicher, the movement's leading anti-Sem-
ite, said, "If the brains of all university professors were put at one end of the
scale and the brains of the Fiihrer at the other, which end, do you think,
would tip?"5s
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 rectorship at Freiburg, where his inau-
gural 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 Tischgespriich
vom 20 August 1942, 12 VIERTELJAHRSHEITE 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.
55 Quoted in K. BRACHER, supra note 4, at 272.
M Seier, Der Rektor als Fuhrer: Zur Hochschulpolitik des Reichserziehungsministeriums, 1934-
1945, 12 VIERTELJAHRSHEITE FUR ZEITGESCHICHTE 105 (1964).
55 The career of Martin Heidegger has been the focus of new interest through the publica-
tion ofV. FARIAS, HEIDEGGER AND NAZISM (1987). Several Nazi teachers of international law
became rectors. See Walz, Der Rektor als Fuhrer der Universitiit, 5 DEUTSCHES REcHT 6 (1935);
Ritterbusch, Kieler Bliitter 1815 und 1938, in GRUNDFRAGEN DER DEUTSCHEN UNIVERSITAT
UND WISSENSCHAIT 27 (Reichsdozentenbund 1938).
672 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 oflibraries and, in a wave of festive ceremo-
nies, burned. 58 Lists of not-to-be-cited authors, including Jews, were prom-
ulgated, 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 I, at 66; Riithers &
Schmitt, Die juristische Fachpresse nach der Machtergreifung der Nationalsozialisten, 1988 JURISTEN-
ZEITUNG 369. Almost half of the articles submitted in the early Nazi period failed the ideologi-
cal test. Fischer, Die Arbeiten des Reichsrechtsamtes im verflossenen Kampfjahr, 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 GemeinschaJt, politics and law are the results of race and Volkstum 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 Schnie-
derkotter, 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 ZeitschriJtfiir 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 univer-
sity. 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 t040in 1941. See U. ADAM. HOCHSCHULEUND NATIONALSO-
ZIALISMUS: DIE UNIVERSITAT TUBINGEN 1M DRITTEN REICH 218-24 (1977). On women law
1990] INTERNATIONAL LAW IN THE THIRD REICH 673

in a world that glorified deeds and commands. International law, in particu-


lar, 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 Min-
istry.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 interna-
tional 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 im-
pact 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]. 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, Volkerrecht und Reichsjustizausbildungsordnung, 18 Z
FUR VR 323 (1934).
65 Thus, Allied bombers claimed the first edition of W. GREWE, EpOCHEN DER
V OLKERRECHTSGESCHICHTE 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 I MUL T1TUDO 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 RECHTSHISTo-
RIKERS 91-92 (1975,; and more understandingly, Smend, Carl Bilfinger, 20 ZAoRV I (1959-
60). 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.
674 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

way recognized Germany's complaints about Versailles and advocated peace-


fulchange; his memoirs, however, portray him as having been deeply skepti-
cal. The American internationalist James Garner followed his visit with a
scathing narration of the treatment by the Third Reich of its international-
ists. 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 legal-
ity. 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 Ab-
wehr. 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. 7S Increasingly, the Abwehr
became the focus of rivalry and suspicion on the part of the secret intelli-
gence 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 ADE-
NAUER 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).
75 K. ABSHAGEN, CANARIS: PATRIOT UND WELTBORGER (1950); H. HOHNE, CANARIS (J.
Brownjohn trans. 1979).
1990] INTERNATIONAL LAW IN THE THIRD REICH 675

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 Interna-
tional Law and brother of the man who carried the bomb into Hitler's head-
quarters 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 special-
ized 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 offen-
sive of 1944, as well as to document lesser charges against western com-
batants. 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 commis-
sions 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 institu-
tions 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 pris-
oner-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 Bon-
hoeffer'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.
676 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 ofinter-
national 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 dis-
missed).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 anti-
Semitism 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 profes-
sors.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 Ham-

82 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. 478-
94 (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 pe-
riods. 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 universi-
ties 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 profes-
sor survived the purge. E. DOHRING, supra note 28, at 202.
86 Wehberg, Professor Max Fleischmann, 46 FRIEDENSWARTE 381 (1946); Wehberg, Karl Neu-
meyer 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].
1990] INTERNATIONAL LAW IN THE THIRD REICH 677

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 re-
sulted 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 non-
intellectual 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-ap-
pointed professors in the Western zones of occupation. 9s 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 "Pjlanzstiitte bester nationalsozialistischer
Rechtsgelehrter": Die juristische Abteilung der Rechts und Staatswissenschaftliche Fakultiit, in H.
BECKER, H. J. DAHMS & C. WEGELER, DIE UNIVERSITAT GOTTlNGEN UNTER DEM NATIONAL-
SOZIALlSMUS: 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 ofthe job losses incurred at that time. One study says that on half ofthe 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 IVORVTowER 10, 241 (1986).
90 J. BENDERSKV, supra note 2, at 189-91, 206.
91 Wieacker, Das Kitzeberger Lager junger Rechtslehrer, I DEUTSCHE RECHTSWISSENSCHAIT 74
(1936). See also B. ROTHERS, ENTARTETES RECHT 41-48 (1988).
92 N. GORKE, DER EINFLUSSJODISCHER THEORETlKER AUF DIE DEUTSCHE VOLKERRECHTS-
LEHRE (1938), volume 6 of a series, DasJudentum in der Rechtswissenschaft, produced under
the auspices of Carl Schmitt. For background, see B. ROTHERS, supra note 91, at 128-31.
95 Reimann, supra note 2. Ofthose who won chairs in 1933, Scheuner was the most conspicu-
ous 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.
678 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 execu-
tioner 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 of like-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 law-
yers 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 formu-
lated others that did not so clearly violate internationallaw. 96 Before giving
his life with the conspirators, Berthold von Stauffenberg had loyally de-
fended 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 contin-
ually 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

94 Schmitt's career after 1945 is dealt with inJ. BENDERSKY, supra note 2, at 264-87.
9S 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 ofthe Nazi period in prison, see WOLFGANG ABENDROTH, EIN LEBEN IN DER ARBEITER-
BEWEGUNG (B. Dietrich &J. Perels eds. 1976); Stenel, Wolfgang Abendroth (1906-1985), Revolu-
tioniir 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).
1990] INTERNATIONAL LAW IN THE THIRD REICH 679

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 propa-
ganda. 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 dis-
connecting 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 aban-
doned 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, Introduc-
tion 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.
680 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 interna-
tionallawyer 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, Volk, Lebensraum and the Fuhrer principle. This phe-
nomenon 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. Grow-
ing 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 some-
times 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 them-
selves 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 enthusi-
asm 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

104 See D. ANDERSON, supra note 67, at 447-49.


105 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, Rechtswissen-
schaft im Dienst der NS-Propaganda, in 2 Gantzel, supra note 10, at 185, 354. See also the com-
ments of Wilhelm Wengler, 56 INSTITUT DE DROIT INTERNATIONAL, ANNUAIRE 318, 322
(1975).
106 J. BENDERSKY,Jupra note 2, at 229-30, 234-38.
107 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 Miiller-Laube, Julius von Gierke (1875-1960), in
Loos, supra note 102, at 471, 477-78.
1990] INTERNATIONAL LAW IN THE THIRD REICH 681

We live in an age when the highest penalty for nonconformity in the acad-
emy 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 dramati-
cally-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 war-
fare 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).
682 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 perse-
cuted and despised, belongs to history. He and the Countess, the out-
standing 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 Encyclo-
pedia 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 League-
and 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 accom-
panied Strupp's exile were far more typical than the successes of the more
prominent few among the emigres.

109 Wengler, HelmuthJames von Moltke (1906-1945),48 FRIEDENSWARTE 297,303 (1948).


110 A. WEGNER, EH~,FOHRUNG IN DIE RECHTSWISSENSCHAFT 3 (1948).
III 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 Wehberg, Zum Andenken an Karl Strupp, 40 FRIEDENSWARTE 175, 178 (1940).
114 Strupp, supra note 83, at 586.
1990] INTERNATIONAL LAW IN THE THIRD REICH 683

Rudolf von Laun represents those who withdrew and, without being ac-
tive resisters, did as little as possible for the regime and in fact did little
writing of any sort}!5 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 possi-
ble. 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 commu-
nityafter 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 repre-
sented 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. lI6 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 Schmitt}!7 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

1I5 On Laun, see Weber, Von Albrecht Mendelssohn-Bartholdy zu Ernst Forsthoff: Die Hamburger
RechtsJakultiit 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 IN-
TERNATIONALEN 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 ofthe '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, 1 I ZAoRV 325 (1942).
117 J. BENDERSKY, supra note 2, at 263.
684 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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. liS 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 inter-
national lawyer. Even here he was plagued by the competition of other Na-
tional 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 1944Y 9 1n 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 abidingjudgment. 12o
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 rela-
tions of the Reich. 123
In 1943, seeing the handwriting on the wall, Berber arranged to be ap-
pointed 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

118 [d. at 248-49. 119 [d. at 263-64.

120 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 selfjustification, supra note
95, and Weber, suprtt note lOS.
122 Weber, supra note lOS, at 253. 12S I G. WEINBERG, supra note 3, at 366.
124 See Weber, supra note lOS, at 393-409; see also J. FAVEZ, UNE MISSION IMPOSSIBLE? LE
CICR, LES DEPORTATIONS ET LES CAMPS DE CONCENTRATION NAZIS 346 (1988).
1990] INTERNATIONAL LAW IN THE THIRD REICH 685

After the war, he found it wise to spend several years in India as a govern-
ment 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 for-
mats 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 profes-
sors' 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 Cam-
bridge, 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: VER-
LAG UND AUTOREN IN 4 JAHRZEHNTEN: FESTSCHRIFT ZUM 225 JAHRIGEN JUBlLAUM DES VER-
LAGES 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 Ger-
man 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 deposi-
tion as Bavarian Minister of Culture.
128 See sources cited in note 91 supra.
686 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 Volk. Consistently, he joined 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. ISO 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. lSI International lawyers did riot execute a right
wheel all at once. As we have seen, the party did take measures to assure
coordination,ls2 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 .ISS 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 read~
ing: 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).ls4 The German literature did not gain a cordial reception
among internationalists outside the Reich. ls5 The following survey concen-

129 Walz, Prof Dr. Giirke, 25 Z FUR VR 129 (1940).


ISO Id. lSI Messerschmidt, supra note 1, at 62-63.
152 See text at notes 56-59, 91.
ISS The lack of awareness by German internationalists of Hitler's short-run aggressive plans is
stressed in Messerschmidt, supra note 1, at 78-79. It is generally thought that the meeting of
November 5, 1937, memorialized by the so-called Hossbach Protocol, provided the first warn-
ing of these plans even to the military/government elite. Wright & Stafford, Britain and the
Hossbach Memorandum, MILITARGESCHICHTLlCHE MITTEILUNGEN, No.2, 1987, at 77.
IS4 Helpful works on the changes Nazism. wrought in the German language are: C. BERNING,
YOM "ABSTAMMUNGSNACHWEIS" ZUM "ZUCHTWART": VOKABULAR DES NATIONALSOZIA-
LISMUS (1964); and V. KLEMPERER, LTI, NOTIZBUCH EINES PHILOLOGEN (4th ed. 1987).
IS5 See sources cited supra note 1 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 sur-
1990] INTERNATIONAL LAW IN THE THIRD REICH 687

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. IS6 National Socialist think-
ing reversed these priorities. A Volk is an organic, natural entity.1S7 Nazi
thinkers liked to cite the classic differentiation originated by the sociologist
Tonnies between a GemeinschaJt and a GeselischaJt. IS8 A GeselischaJt is an artifi-
cial 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 Revolu-
tion 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 GeselischaJt 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 Volk expresses its will
through a state. Ideally, a single Volk has a single state to express its essence.
But the accidents of history have divided some ViJlker, such as the Germans,
that should be one and assembled other states, such as the Austro-Hungarian
Empire, that are artificial mixtures. IS9 Still, the course of both history and
morality moves toward a correspondence of one Volk, one Reich and one
Fiihrer. 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 seem-
ingly unaware of the game that was being played." The Austrian A. VERDROSS, VOLKERRECHT
29 (1937), accepted Nazi international law at face value.
IS6 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAWOF,THE UNITED STATES §201
(1987) [hereinafter RESTATEMENT].
IS7 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 Bekampfung 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).
IS8 For the usage of GemeinschaJt in Nazi thought, see Stolleis, GemeinschaJt und Volksgemein-
schaJt-Zur juristischett Terminologie im Nationalsozialismus, 20 VIERTELJAHRSHEFTE FUR ZEIT-
GESCHICHTE 16 (1973). And in international law, F. GIESE & E. MENZEL, YOM DEUTSCHEN
VOLKERRECHTSDENKEN DER GEGENWART 34-35 (1938).
IS9 See F. GIESE & E. MENZEL, supra note 138, at 37, 58-61.
688 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 extra-
territorial 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, accom-
panied 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 interna-
tional 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 Kampp46 By 1937 and 1938,

140 Important works on equality of the early Nazi years are Bilfinger, Gleichheit und Gleichbe-
rechtigung der Staaten, in HANDBUCH, supra note 16, at 99; and Bruns, Deutschlands Gleich-
berechtigung als Rechtsproblem, 1933 JURISTISCHE WOCHENSCHRIFT 2481.
141 See Bilfinger, supra note 140, at 99 ("Equality and equality of rights . . . form a basic law

ofthe 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 514 (R. Bernhardt ed. 1984), surveys the history of the idea of unequal treaties. There
does not seem to have been any significant cross-fertilization <lmong 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 Exterritoria-
litiitsrechte in Mandschukuo, 3 V6LKERBUND UND V6LKERRECHT 459 (1937).
14S 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 participailt'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
1990] INTERNATIONAL LAW IN THE THIRD REICH 689

the first theoretical justifications for a greater than equal position for Ger-
many 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-Dar-
winian 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 fron-
tiers 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 GE-
GENWARTSFRAGEN-V OLKERRECHT-STAATENETHIK-INTERNATIONALPOLITIK, Aus-
GEWAHLTE 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).
690 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

Third Reich represented a clean break with the past and was therefore not
bOHnd by commitments that the illegitimate Weimar Republic had under-
taken. 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. 15s 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 ofthe 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 com-
batants 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 N:tain 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 fol-
lowed 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 ofa 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

U2 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 RASSENGESETZLlCHE RECHTSLEHRE, GRUNDZUGE EINER NATIONAL-
SOZIALISTISCHEN RECHTSPHILOSOPHIE 56-57 (3d ed. 1934).
us On Soviet doctrines as to noncontinuity between the tsarist and Communist states, see K.
GRZYBOWSKI, SOVIET PUBLIC INTERNATIONAL LAW: DOCTRINES AND DIPLOMATIC PRAC-
TICE.92-95 (1976).
1&4 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
Intemational 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).
us For a review of these events from an Allied perspective, see Oppenheim, GlJVemments 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 NATIONALSOZIALlSTISCHEN RECHTSSETZUNG UND RECHTSPRAXIS IN VER-
WALTUNG UND JUSTIZ UNTER BESONDERER BERUCKSICHTIGUNG DER EINGEGLIEDERTEN OST-
GEBIETE UND DES GENERALGOUVERNEMENTS (1981).
1990] INTERNATIONAL LAW IN THE THIRD REICH 691

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 interna-
tional 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 under-
mine 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 Euro-
pean "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 pri-
macy 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,
692 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 conse-
quences 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 CLAU-
SULA 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.
1990] INTERNATIONAL LAW IN THE THIRD REICH 693

equality-coercion arguments did have the practical advantage of not being


completely open-ended, as rebus sic stantibus would be; Germanjurists 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 bound-
aries that gave rise to new minorities, attempted to defuse the issues by
establishing multilateral machinery to handle them peacefully.l7l A minori-
ties 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 them-
selves 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 individ-
uals because they believed that the collective aspects of the minority groups
should be stressed. 172 Hitler was not content with protecting German minori-
ties 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).1711 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, includ-
ing 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 Volkerrechts, 23 Z FUR VR 411 (1939).
171 For reviews ofJhe League minority protection system, see J. ROBINSON, WERE THE MI-
NORITY TREATIES A FAILURE? (1943); P. DE AZCARATE, THE LEAGUE OF NATIONS AND NA-
TIONAL MINORITIES: AN EXPERIMENT (1945). .
172 Walz, Neue Grundlagen des Volksgruppenrec~s, 23 Z FUR VR 150 (1939).
17S 1 G. WEINBERG, supra note 3, at 17; C. LATOUR, SUDTIROL UND DIE ACHSE BERLIN-RoM
1938-1945 (1962).
694 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

and hence from the benefits of German nationality. 174 Nazi scholars empha-
sized that Yiddish was not an independent language and that Jews were
therefore not a true minority; they also asserted that Jews wanted assimila-
tion, not minority status. 175 Before 1933, German writers for the most part
had accepted the idea that the Jews of Eastern Europe constituted a minor-
ity, 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, down-
grading them to mere nationals, violated any international law rule. 177 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 character-
istics 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 as Jews and subject to discriminatory legislation. 178 The Depart-
ment 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 Giirke, 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 independ-
ent 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, Giirke said that "National Socialism has rejected assimilation with all possible deci-
siveness." 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. GURKE, GRUNDZUGE DES VOLKERRECHTS 50 (1936).
177 Stauffenberg, Die Entziehung der StaatsangeMrigkeit 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 decMance de la nationalite, 29 REVUE CRITIQUE DE DROIT
INTERNATIONAL 63 (1934). Reluctantly, Garner, Recent German Nationality Legislation, 30 AJIL
96,99 (1936), conchiCIed that it "probably cannot be successfully argued that [the law] violates
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).
1990] INTERNATIONAL LAW IN THE THIRD REICH 695

VII. 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 pene-
trated deeply into the minds of European statesmen. It certainly played no
role in the mind of Adolf Hitler. Still, war weariness was endemic through-
out 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 Ger-
many'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}82
After the pacifists' expulsion, international lawyers of the new breed re-
peatedly sounded bellicose notes, preparing their students for war. 18S 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 what-
ever 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 Vi/lkerrechtler 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 obliga-
tions to one's enemy, to the international sphere}84

180 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).
181 But to be seen as active in the policy "fulfillment" of Versailles was to be made a "target,
sometimes of bullets. See K. EpSTEIN, MATTHIAS ERZBERGER AND THE DILEMMA OF GERMAN
DEMOCRACY 379-89 (1959).
182 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).
18S Thus, T. MAUNZ, GELTUNG UND NEUBILDUNG MODERNEN KRIEGSVOLKERRECHTS 18
(1939), moves from}he 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.
184 Schmitt, Totaler Feind, totaler Krieg, totaler Staat, 4 VOLKERBUND UND VOLKERRECHT 139
(1937).
696 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 relat-
ing 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 embod-
ied in the Hague Conventions of 1907 and the Geneva Convention of
1929. 187 They also sought to persuade their chiefs that those rules had be-
come 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

185 F. GIESE & E. MENZEL, DEUTSCHES KRIEGSFOHRUNGSRECHT (1940).


186 Grewe, Die neue Kriegsphase, 8 MONATSHEFTE FOR AUSWARTIGE POLITIK 748 (1941).
Grewe later privately acknowledged the error of this analysis, blaming it on inadequate infor-
mation. 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 NATIONAL-
SOZIALISMUS 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 argu-
ment 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. MESSER-
SCHMIDT, DIE WEHRMACHT 1M NS-STAAT: ZEIT DER INDOKTRINATION 390-422 (1969).
1990] INTERNATIONAL LAW IN THE THIRD REICH 697

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: Theyan-
nexed parts of Czechoslovakia, Poland, Alsace-Lorraine and Eupen-et-
Malmedy. 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 viola-
tions as deportations, use of forced labor, and reprisals against civilian hos-
tages. 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 Conven-
tions, 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 interna-
tional 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 prag-
matic 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 Con-
vention 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, MI-
LITARGESCHICHTLICHE 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 DIE SOWJETISCHEN KRIEGSGE-
FANGENEN 1941-1945, at 10 (1978). As an example of ignorance, Moltke cited a German
general's answer to I1'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).
698 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

In vain the lawyers in the Abwehr protested against the commando order,
under which commandos were to be executed and not treated as pris-
oners.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 acqui-
escence 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 con-
siderations 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.

19&15 IMT, PROC., supra note 193, at 481, 483-88.


196United 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
(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).
1990] INTERNATIONAL LAW IN THE THIRD REICH 699

But Keitel disagreed and wrote on the memorandum that these views repre-
sented 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, basi-
cally those foreshadowed in the First World War about the legality of sinking
merchant ships without warning and establishing sink-on-sight zones. 203 In-
vasions of neutral waters, as in the British capture of the Altmark in a N orwe-
gian fiord in 1939, gave rise to controversy. Germans wrote articles about
the destroyers-for-bases arrangement between the United States and Brit-
ain, 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. Par-
ticularly on the eastern front, it was not only the German forces that ignored
conventional and customary restraints on violence. 206 The Nuremberg Tri-
bunal 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 interna-
tionallaw lies not in its doctrinal impact on the law of nations but in its role as

201 19 IMT, PRoc. 412 (1948). 2021d.


20S 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 ofthe Institut flir Auswartige
Politik, transformed into the Deutsches Institut flir Aussenpolitische Forschung. Thus, the
destroyer bases deal was signaled in the Zeitschrift Jilr ausliindisches iiffentliches Recht und
Volkerrecht 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 Neutra-
litiit im europiiischen Krieg und im zweiten Weltkrieg, 1943 JAHRBUCH DER WELTPOLlTlK 86, 99.
See Weber, supra note 105, at 303-04.
205 For a recent German review of this issue, see Gruchmann, ViJ1kerrecht 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
AMERlKANISCHE NEUTRALlTAT 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.
700 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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 interna-
tionallawyers 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 aca-
demic 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 activi-
ties 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 re-
sisted, 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-clear demonstra-
tion 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 "tran-
scended all the battle lines." Makarov, supra note 63, at 364 n.7.
209 See supra notes 156-57.
1990] INTERNATIONAL LAW IN THE THIRD REICH 701

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 law-
yers 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 oflaw 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 Jour-
nal may find themselves in countries where for the present the normal free-
doms 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 observa-
tions. 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, attentiorf must be paid to the dynamics of an authoritarian govern-
ment, 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
702 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

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, finan-
cial 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 Commu-
nist 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.
1990] INTERNATIONAL LAW IN THE THIRD REICH 703

ApPENDIX A

GERMAN FULL PROFESSORS OF PUBLIC INTERNATIONAL LA w-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 Schiicking, 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. Goppinger, Die Verfolgungder Juristenjiidischer Abstam-
mung 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 Name Year of Birth

Berlin Viktor Bruns 1884


Erich Kaufmann (honorary) 1880
Heinrich Triepel 1868
Bonn Richard Thoma 1884
Breslau Hans Helfritz 1877
Arthur Wegner 1900
Cologne Godehard Ebers 1880
Hans Ke1sen 1881
Erlangen Max Wenzel 1882
Frankfurt Friedrich Giese 1882
Karl Strupp 1886
Freiburg Fritz Marschall von Bieberstein 1883
Wilhelm van Calker 1869
Giessen None
Giittingen Paul Schon 1867
Herbert Kraus 1884
Gerhard Leibholz 1901
Greifswald Hermann Jahrreiss 1894
Halle Carl Bilfinger 1879
Max Fleischmann 1872
Hamburg Rudolf von Laun 1882
Albrecht Mendelssohn-Bartholdy 1874
Kurt Perels 1878
Heidelberg Walter Jellinek 1885
Jena None
Kiel Walther Schonborn 1883
Walther Schiicking 1875
Kiinigsberg Ernst von Hippel 1895
Leipzig Franz Exner 1881
Walter Simons 1861
Marburg Johann Bredt 1879
Munich Karl Neumeyer 1869
Miinster Heinrich Drost 1898
Rostock Edgar Tartarin-Tarnheyden 1882
Ernst Wolgast 1888
Tiibingen Hans Gerber 1889
Wiirzburg Christopher Meurer 1856
704 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 84

The following professors were forced out:


1933-1935 1937-1939
Erich Kaufmann Godehard Ebers
Hans Ke1sen Max Fleischmann
Albrecht Mende1ssohn-Bartholdy Walter Jellinek
Karl Neumeyer Herbert Kraus
Kurt Perels Gerhard Leibholz
Walther Schiicking Arthur Wegner
Karl Strupp

In the listing of Jewish international lawyers in Norbert Giirke, Der Ein-


fluss jildischer 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 Zeitschrift filr
ausliindisch,es olfentliches Recht und Volkerrecht, published by the Kaiser Wil-
helm Institute and edited by Viktor Bruns during the period 1933-1944.
Each issue included reports on the conclusion of treatIes and other inter-
national events, somewhat like the work of the American Journal of Interna-
tional Law.
The ZeitschriJt filr VO'lkerrecht was published by the institute at the Univer-
sity of Kie1. Professor Walz was the editor during the Third Reich.
Niemeyers ZeitschriJt filr internationales Recht was founded in 1890 and had
included important liberal writers among its authors-Fleischmann,
Kaufmann, Mende1ssohn-Bartholdy and Wehberg. Losses among its editors
were heavy and it ultimately was merged into the Zeitschrift filr Volkerrecht,
above, after its editor Herbert Kraus was forced out of academic life.
V01kerrecht und VOlkerbund was founded in 1934 by Professor Frey tag-
Loringhoven 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 filr 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-socia-
liste du droit des gens, pp. 195-98 (1939).