Horst Mahler-Motion to hear Evidence
Motion to hear Evidence
In the criminal case against Dr. Reinhold Oberlercher, Uwe Meenen and Horst Mahler due to suspicion of incitement of the People – Regional Court Berlin 522 - 1/03 – I herewith file an application to hear
an expert witness on national and international law.
He will satisfy the court that
a) the “Convention (IV) respecting the Laws and Customs of War on Land” from 18 October 1907 (Reich Law Gazette 1910, p. 107), also known as Hague Rules of Land Warfare, in particular article 43 of the same, is decisive, as containing the recognised basic principles of the ius gentium, for the assessment of the legal situation in reference to the occupation of the militarily conquered German Reich through the troops of the victorious powers USA, the Soviet Union and Great Britain;
b) according to the prevailing teachings of the ius gentium, in particular in respect of art. 43 of the Hague Rules of Land Warfare, the conquest of a country
- is not equivalent to the acquisition of sovereignty,
- does not entitle the annexation of the occupied territory, nor does it entitle to any other sovereign disposal of this territory, e.g. the creation of new states on the occupied territory;
- that these acts are only permissible, should the occasion arise, once peace has been agreed;
- that the annexation, or new creation of a state that has nonetheless taken place through the occupying power constitutes an offence against the ius gentium and can have no legal effect on the rightful possessor of the territory in question;
- that the removal of the government of an enemy state, or the instalment of a new government for the occupied territory transgresses the authorisation of the occupying power, and
- that a puppet government is not even to be viewed as a de-facto-government, but as an organ of the occupying power;
- that measures undertaken by such a government, which exceed the authorisation of the occupying power, are unlawful.
Furthermore, the expert witness will convince the court that
1. the disorganisation of the German Reich, namely the incarceration and murder of the members of its government, the disposal of the Reichstag, of all Reich authorities and courts of the Reich, the ban of the state party, the National Socialist Workers’ Party (NSDAP) by the Allied Control Council, and the discrimination of the National Socialists (known as denazification) by the Allied Control Council, was in violation of generally recognised principles of the ius gentium, in particular of the prohibition of intervention of art. 43 of the Hague Rules of Land Warfare;
2. the Basic Law for the Federal Republic of Germany was imposed upon the militarily defenceless German People by the Western victorious powers under violation of generally recognised principles of the ius gentium, in particular under disregard of art. 43 of the Hague Rules of Land Warfare;
3. due to this reason the Basic Law is merely the statute of the occupiers, which, being the victorious powers’ will to domination, has no legally binding character for citizens of the German Reich;
4. the Federal Republic of Germany is not a state, but merely the “organisational form of a modality of foreign rule” (OMF) over the German People and consequently an organ of the occupying power;
5. the relationship of the OMF-Federal Republic of Germany to the German Reich is not an internal one based on national law, but one based on international law (i.e. ius gentium), a relationship between occupying power and defeated enemy;
6. the abolition of the ethnic exclusiveness of the German People, which was established as the war aim no. 1 during the negotiations between the USA and the Soviet Union, is in breach of generally recognised principles of the ius gentium, in particular of the prohibition of intervention of art. 43 of the Hague Rules of Land Warfare;
7. the causing and toleration of the influx of foreigners onto the territory of the German Reich by the OMF, is in breach of generally recognised principles of the ius gentium, in particular of the prohibition of intervention of art. 43 of the Hague Rules of Land Warfare;
8. the enablement of foreigners to infiltrate into and settle on the territory of the Reich by the authorities of the OMF is in breach of generally recognised principles of the ius gentium, in particular of the prohibition of intervention of art. 43 of the Hague Rules of Land Warfare, and that no rights whatsoever arise out of factual reality for the foreigners against the German Reich and its citizens;
9. the repatriation of the foreigners who have settled on the territory of the German Reich (as a consequence of the war aims that the USA and Soviet Union have followed that are in breach of the ius gentium) into their native countries is compatible, being the measure to dispose of theses consequences, with the generally recognised principles of the ius gentium;
10. the application of § 130 Penal Code, which was created by the Bundestag of the OMF-Federal Republic of Germany, as though it were a valid judicial norm, is in breach of generally recognised principles of the ius gentium, in particular of the prohibition of intervention of art. 43 of the Hague Rules of Land Warfare – certainly insofar as this regulation is used to make the German People defenceless against the grievous war crime of the occupation of the land remaining to the Reich with alien civil occupiers.
The Convention respecting the Laws and Customs of War on Land from 18 October 1907 is codified international law (i.e. ius gentium) which is generally valid. Those powers that did not sign this agreement are also bound by it.
Article 43 Hague Rules of Land Warfare is found in the section “Military Authority over the Territory of the Hostile State”.
Art. 42 defines the term “occupation” as follows: “Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.”
Art. 43 [the restoring of public order] has the following wording:
“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”
This is the standpoint of the Federal Constitutional Court in reference to the fate of the German Reich:
We herewith maintain that the German Reich survived the collapse of 1945, and that it perished neither with the capitulation, nor through the execution of foreign governmental authority in Germany through the Allies, nor did it perish at a later date. It continues to possess legal capacity as before, but is, however, not able to act as a state due to lack of organisation. The FRG is not the legal successor of the German Reich.
The standpoint of the Basic Law concerning its legal quality:
Article 146 Basic Law (period of validity)
This Basic Law, which is valid for the entire German People following the achievement of the unity and freedom of Germany, ceases to be in force on the day on which a constitution adopted by a free decision of the German People comes into force.
If the German Reich did not perish, then it continues to exist as a subject of national and international law.
If the Federal Republic of Germany is not the legal successor of the German Reich, then the German Reich and the Federal Republic are not identical but distinct.
If they are distinct from another, then they are necessarily in a relationship to another as distinct entities.
This relationship is first and foremost to be defined.
This question was solved in a classic manner by the teacher for national and international law, Prof. Dr. Carlo Schmid, member of the Parliamentary Council, in his speech in the session of the Parliamentary Council on 8 September 1948. He did so, by first developing the general principle (major premise), in order to then subsume the conditions prevailing in the “Western Zones” of Germany since 8 May 1945 as the minor premise under the major premise.
He began with the question: “What does ‘constitution’ … mean?” He answered this question as follows:
“A constitution is the entire decision of a free People on the forms and contents of its political existence.
Such a constitution is then the basic norm of the state. At the end of the day, it determines and defines matters of sovereignty without recourse to a third party. In addition to this, a constitution determines the rights of the individuals and the boundaries of state authority. Nothing supercedes it, nobody can annul it, nobody can ignore it. A constitution is nothing other than the self-realisation of the freedom of a People which has been brought into a legal form. Its pathos is contained therein, and this is for what the Peoples have manned the barricades.
In these revolutions (1830) the realisation was expressed that a constitution has to be more than a mere set of regulations in a democratic world, that it has to be more than a mere organisational statute. The organisation and order of the administrative structure, the organisation and order of the governmental positions, the definition of the rights of the individuals and the authorities are perfectly imaginable, and has come to pass – in the realm of the “organic articles” of the absolutist authoritarian state, indeed, even in the realm of foreign rule.”
The essential aspect here, is the distinction Schmid makes between a constitution and an organisational statute. The latter can also come from a system of foreign rule, a constitution, however, cannot:
“In this case, however, one will not speak of constitutions, if words are to retain their meaning; for these creations lack the character of self-determination which is not subjected to a foreign will. We are here not dealing with ‘constitution’ but with ‘organisation’. It makes no fundamental difference, whether an organisation is created by those who organise, or whether it is the result of a foreign will; for the essential aspect of an organisation is whether it functions well or not. When dealing with a constitution, however, it is a different matter. It makes an essential difference whether it is self-created or whether it is the emanation of a foreign will; for ‘constitution’ is nothing other than the establishment of a People as the political carrier of its destiny out of its own will.
All this is also true of the creation of a state. Of course, states can be created in many different ways. They can even be created through external force. However, state is then nothing other than an expression for the governing apparatus, in much the same way as the state theoreticians of the Early Renaissance spoke of il stato. Il stato was simply the governing apparatus, which exercised authority over a territory in an organised fashion. But it was, after all, the great improvement and progress towards man undertaken by democracy, that it started to hold the state for more than a mere governing apparatus. For democracy, the state has always been the act of a People taking its fate into its own hands; it has always been the expression of a People deciding in its own interests.”
The explanations on the unity of People, constitution and state are the central issue here.
This unity is the idea of the national state, which only becomes for itself in the ruins of the feudal “state”, when the People is no longer the possession of a dynasty, when it is no longer royal or princely (private) property, but when it belongs to itself and when its living space is its own property.
“One has to know what one wants when one speaks of the state. Is state to mean the mere governing apparatus which can also be at the disposal of a foreign ruler, or is to signify a living ethnic reality, a democracy established out of the own free will. I believe that in the democratic age, one can only speak of a state in the legitimate sense of the word, where one is dealing with the result of the complete constitutive act of a sovereign People that has taken place due to its own free will. Wherever this is not the case, wherever a People has to organise itself under foreign rule and under the recognition of this rule, it does not constitute itself (unless against the system of foreign rule itself), but merely organises itself, …
Of course this organisation as an entity that is similar to a state can go rather far. However, the fact which distinguishes this entity from a statehood that is legitimated through true democracy is that it is in fact nothing other than the organisational form of a modality of foreign rule; for, self-organisation that takes place even though full freedom is not given, assumes the recognition of the foreign power as superordinated and legitimate. A state is only established in the true democratic sense of the word, where the will of the People emanates from out of itself, where this will is not restricted by the conditions set by a foreign will demanding obedience, and where there is no obedience to such a foreign will. Wherever this is not the case, wherever the People organises itself in function of the will of a foreign, superordinated power, and where it does so even under the compulsion of having to follow certain directives and under the condition of having to have its work approved, there is established nothing other than an organism of a more or less administrative character. This organism may possess all normal – I would even say ‘inner’ – functions of a state; if, however, it has been stripped of the possibility to determine the form of its effectiveness and the boundaries of its power of decision, then it lacks that which determines a state, namely the competence of the competencies in the deeper sense of the word, i.e. the organism lacks the ultimate sovereignty over itself and as such the possibility of ultimate responsibility. All this does not hinder the fact that this organism can internally execute authoritative power with highest efficiency.”
The major premise has thus been secured. Carlo Schmid had pointed out the importance of the major premise in reference to action in the introduction of his speech, in the following words:
“It is not a matter of theorising; on the contrary, just as the engineer who has to use slide rule and logarithm table occasionally consults his physics book in order to precisely determine the location of his actions in the system of mechanics, so too it is a matter of us ascertaining which areas we really ought to be dealing with. After all, theory is not a futile pastime, but sometimes the only way to solve complicated matters, and sometimes the only way of safely going forward, the only way to determine the location of the Archimedian point where we can attach the lever of our political activity. We can only obtain the basics of our calculations, which we will need in order to act correctly, by means of a clear recognition of the facts at hand. In order to come to an accurate and justifiable solution in complicated matters, one must look at all aspects of the matter in order to grasp the facts in full.”
The issue was thus that of the basics needed for acting responsibly. With this convincing – indeed compelling – argumentation, Schmid formed the will of the Parliamentary Council to distance itself from the Basic Law. This act of distancing is clearly and unambiguously expressed in the last article of this body of legislation, in article 146 of the Basic Law, which was suggested by Carlo Schmid: The Basic Law is not the constitution of the German People. The People is called upon to freely decide upon a constitution, which will then annul the Basic Law.
Further on in his speech, Carlo Schmid emphasised that a constitution cannot be created by means of changing the Basic Law, but solely through the constitutive National Assembly of the German People.
Now one might want to raise the objection that these problematic circumstances have been brushed aside through the developments of the European Union, in which the national states are to disappear. In that case, one would fail to see that the integration of the German Reich into this imagined supranational state “European Union” is only conceivable as the free decision of the German People. The institutions that were created through the Basic Law lack the competence for such a decision, because they do not represent the German People, but foreign rule.
The victors knew that they could only achieve their war aims – aims that were in violation of the ius gentium – if they succeeded in leading the Germans to believe that the Federal Republic is their state, and if they managed to convince them that the political class are not collaborators, but representatives of the German People and its state.
The pressure of the foreign rulers was a heavy burden for the Parliamentary Council, which found its expression in a codified lie. In the preamble of the Basic Law, i.e. in its most solemn part, was written:
“Conscious of its responsibility before God and man … the German People has decided this Basic Law of the Federal Republic of Germany in exercise of its constituent power … in the federal states of ….”
The title of this Law is: “Basic Law for the Federal Republic of Germany” – a crucial difference. More grievous, however, is the lie that this body of legislation had been “decided [by the German People] … in exercise of its constituent power.” Carlo Schmid had made it clear that there can be no question of that.
In order to bring this out more clearly, he posed the question:
“So what is now the situation of Germany today?”
He gave the following answer:
“On 8 May 1945 the German Wehrmacht surrendered unconditionally. The most manifold effects are tied to this act from the various sides. So how does the matter lie? The unconditional surrender had legal effect solely on the military. The certificate of capitulation that was signed back then did not imply that the German People wanted to express through legitimate representatives that it no longer exists as a state, but rather, its only meaning was that the right of the Allies to treat the Wehrmacht as they saw fit would not be questioned. That is the meaning of the unconditional surrender, and no other.
According to the ius gentium, a state is not destroyed when it is militarily conquered together with its army. The debellatio does not itself destroy the statehood; it merely grants the victor the legal title to destroy the statehood of the vanquished through later acts. The victor thus has to make use of the condition of debellatio if the statehood of the vanquished is to be destroyed. According to the ius gentium, there are only two practical possibilities. One is annexation. The victor must annex the territory of the vanquished, make it part of his own territory. If this takes place, then the statehood is indeed destroyed. Or he must implement what is known as subjugation: the yoking of the conquered People. But the victors did nothing of all that. In Potsdam they explicitly stated that firstly, no German territory is to be taken by means of annexation, and secondly, that the German People is not to be enslaved. This leads to the fact that the conclusion that Germany ceased to exist as a state, can at least not be deduced from the events of 1945.
But something happened in 1945 that has considerably intervened with our stately and political circumstances. Something happened – but it was not the destruction of German statehood. So what was it then that took place? Firstly, the dictatorship’s apparatus of power was broken up. Since this apparatus of power of the dictatorship was identical with the apparatus of state due to the identity of party and state, the German state was disorganised through the destruction of the apparatus of rule. The disorganisation of the apparatus of state is, however, in its substance, not the destruction of the state …
This view, that Germany’s existence as a state was not destroyed and that it was maintained as a legal subject is, even abroad, to a large extent common opinion of jurisprudence. Germany continues to exist as a state entity. It has legal capacity, but is no longer competent to contract, or rather, is currently not competent to contract.Concerning certain fields, the entirety of state authority is being exercised by the occupying powers, by the Control Council on the whole and by the military commanders of the individual zones. The coherence of the state authority is kept upright through the trusteeship from above. Sovereignty did not demise in Germany, it merely changed to a different responsible body by passing over into trusteeship.
However, Germany’s legal position is characterised by something else too: The Allies are occupying Germany not only on the basis of the Hague Rules of Land Warfare. The occupation of Germany also displays an interventionist character. Now what does intervention mean? It means that foreign powers desire to form inner-German matters on German soil according to their own whims, even though the ius gentium forbids them to do so.”
This ascertainment is of historical significance. Carlo Schmid emphasises this in the following words:
“But an intervention can only create facts; it cannot bring about legal effects. From the point of view of the ius gentium, an interventionist measure must be legitimised either by a treaty signed beforehand, or through an agreement decided upon afterwards in order to bring about a lasting legal effect.”
The disposal of the enemy states’ government, or the appointment of a new government for the occupied territory transgresses the authorisation of the occupying power. Such a government is not even to be viewed as a de-facto-government, but as an organ of the occupying power.
The question of whether the treaties of Bonn and Paris ending the occupation regime for Germany (Deutschlandvertrag) and/or other treaties signed by the Federal Republic of Germany could have a healing effect is superfluous for healing effects could only stem from treaties which the German Reich has signed with third parties. The German Reich, however, cannot sign treaties, because it is still unable to act and has no capacity to contract.
In the ius gentium too, there is no such thing as treaties which burden a third party (Pacta tertiis nec prosunt nec nocent). The treaties signed by the OMF-FRG do not bind the German Reich. This is particularly true of the NATO, EU and East treaties, for the accession of the OMF-FRG to the UNO, as well as the 2+4 Treaty.
In this manner, precisely those questions which have been made the subject of the expert report through this motion to hear evidence are moving into the centre of this trial. Answers can only be found through application of the ius gentium.
As an organ of the victorious powers the OMF-FRG is a meshwork of institutions hostile to the German People which suppresses the natural resistance of the People against being plundered and exterminated through the pretence of legality. Those Germans, in service to the OMF-FRG, who partake in the US-East Coast’s politic of robbery and murder against the German People are making themselves guilty of the most grievous crimes against the German People.
The existence of the norms of the ius gentium, are admissible subjects for the taking of evidence. Due to the particularity of the ius gentium, it is not possible to fully name the respective norms as such. It is often the case of unwritten ius gentium (customary ius gentium), or of comprehensive treaties in which the normative thought is hidden in the text. The decisive factor is the actual practice of the subjects of the ius gentium, or rather the consensus of the leading teachers of the ius gentium. The only way of defining the subject of evidence is by portraying concrete facts as complying with, or violating against the ius gentium and by placing them in relation to a guiding principle of the ius gentium, with the assertion that this guiding principle will, in an individual case, lead to the conclusion that has been formulated in this motion to hear evidence.
Citizens of the German Reich who engage themselves for a court of the OMF-FRG in their function as judges, are, according to general judicial norms, obliged to put an end to the effects of foreign rule that is in breach of the ius gentium, and are required to assume the presumed will, or the understood interest of the Reich, as the guiding principle of their decisions.
Berlin, on 6 February 2004
Translated by Markus Haverkamp
 German »Volkerrecht« is correctly rendered with »international law«. This English term is, however, misleading since the German literally means »right of the Peoples«. It will therefore henceforth be rendered with »ius gentium«. – Translator’s note.
 Cf. Friedrich Berber, Lehrbuch des Volkerrechts, vol. II Kriegsvolkerrecht, C. H. Beck, 1969, p. 132 ff.
 In order to formulate the maxim of the co-ordinated actions referring to Germany, Wendell Willkie, special emissary of US President Franklin D. Roosevelt, stated in his negotiations with Joseph Stalin that the war aim no. 1 must be the “abolition of racial exclusiveness”. Cf. W. L. Willkie, One World, Simon & Schuster, New York, 1943, pp. 67, 126.
 Guiding principle of the decision of the Federal Constitutional Court from 31.07.1973 concerning the Basic Treaty (Grundlagenvertrag) between the FRG and GDR, BVerfG 36, 1.
 Recorded in Der Parlamentarische Rat 1948-1949, Akten und Protokolle, vol. 9, published by the Deutscher Bundestag and the Federal Archive, Harald Boldt Verlag in the R. Oldenbourg Verlag, Munich 1996, p. 20 ff. The bound protocols can be found in the archive of the Bundestag, in the office of Gunther J. Weller.
 F. Berber, Lehrbuch des Volkerrechts, vol. II, 2nd ed., C. H. Beck, 1975, p. 133.
 Ibid., vol. I, pp. 62, 464