 |
| [be-] tween the competency of the economic organization and its task
which it had to carry out on its own responsibility. Thus, the
coordination and not the subordination of this economic
organization in the area of command of Field Marshal von Kuechler is clearly
proved by all the documents. If the economic organization had actually been
subordinate to the commander in chief, then neither the appointment of Goering,
nor the establishment of a special organization, nor the express order, that it
was directly subordinate to Goering, nor special departmental official channels
or a separate departmental responsibility would have been necessary. Thus, the
prosecution was unable to prove that the economic organizations were subject to
operational instructions from Field Marshal von Kuechler. |
| |
| * * * * * * * * * * |
| |
2. EXTRACT FROM THE CLOSING BRIEF
FOR DEFENDANT HOTH |
| |
| * * * * * * * * * * |
| |
| Control Council Law No. 10 provides in its Article II 4 (b):
|
| |
“The fact that any person
acted pursuant to the order of his Government or of a superior does not free
him from responsibility for a crime, but may be considered in mitigation.”
|
| Now the question is whether one is able to bring the commissar order
under this provision at all. This necessitates a study of the constitutional
conditions in the Third Reich. A division of power in the sense of Montesquieu
no longer existed. Hitler was simultaneously supreme legislative authority,
supreme judicial authority and highest executive authority. So-called
“Fuehrer orders” and to these belonged the “Directives
concerning political functionaries (Commissars)” issued by the High
Command of the Armed Forces, frequently corresponded in countries without a
dictator to the decision of a government of many people, or even to a law
passed by parliament with hundreds of representatives. The institution of the
“Fuehrer” as triple and exclusive supreme authority in the German
Reich, was known abroad. Treaties were made with the Reich thus
constitutionally formed, and therefore this form of dictatorship was recognized
insofar as this matters at all. Positive doubts on account of this form were
not voiced at that time on the contrary: The smooth functioning of the
machinery of state in contrast to the slow lumbering apparatus of the
democracies was often lauded by foreign statesmen in the initial period of the
Third Reich. If on the other hand, the Commissar Order had been passed as a
formal law by a parliament, then the recipient of this order would also have
had to carry out this order, even if it |
406 |
. 
