[Cover Illustration]
TRIAL
OF
THE MAJOR WAR CRIMINALS
BEFORE
THE INTERNATIONAL
MILITARY TRIBUNAL
_NUREMBERG_
14 NOVEMBER 1945—1 OCTOBER 1946
[Illustration]
_PUBLISHED AT NUREMBERG, GERMANY_
_1948_
This volume is published in accordance with the
direction of the International Military Tribunal by
the Secretariat of the Tribunal, under the jurisdiction
of the Allied Control Authority for Germany.
VOLUME XIX
_OFFICIAL TEXT_
_IN THE_
ENGLISH LANGUAGE
_PROCEEDINGS_
19 JULY 1946—29 JULY 1946
CONTENTS
One Hundred and Eighty-second Day, Friday, 19 July 1946,
Morning Session 1
Afternoon Session 38
One Hundred and Eighty-third Day, Monday, 22 July 1946,
Morning Session 84
Afternoon Session 119
One Hundred and Eighty-fourth Day, Tuesday, 23 July 1946,
Morning Session 160
Afternoon Session 202
One Hundred and Eighty-fifth Day, Wednesday, 24 July 1946,
Morning Session 256
Afternoon Session 284
One Hundred and Eighty-sixth Day, Thursday, 25 July 1946,
Morning Session 331
Afternoon Session 353
One Hundred and Eighty-seventh Day, Friday, 26 July 1946,
Morning Session 397
Afternoon Session 433
One Hundred and Eighty-eighth Day, Saturday, 27 July 1946,
Morning Session 478
One Hundred and Eighty-ninth Day, Monday, 29 July 1946,
Morning Session 530
Afternoon Session 570
Transcriber’s Note: In respect to the presentation of the final
pleas by Counsel for the Defense, the Tribunal in several
instances directed that written speeches of excessive length be
shortened for oral presentation in Court and that notice would
be taken by the Tribunal of the paragraphs omitted. In the
sessions to follow such passages have been reproduced in small
type. For .txt files a “[sm type begins]” note precedes the text
and a “[sm type ends]” note follows the text to identify these
passages.
ONE HUNDRED
AND EIGHTY-SECOND DAY
Friday, 19 July 1946
_Morning Session_
Professor Dr. Franz Exner (Counsel for Defendant Jodl): Mr. President,
may it please the Tribunal, I shall proceed with the reading of my final
argument.
I should like to recall the fact that yesterday I tried to show that
Jodl, in any event until the year 1939, could not have been party to a
conspiracy. But perhaps it is maintained that Jodl did not join the
conspiracy until after 1939. As a previous speaker has already
explained, an officer who works with others in the place assigned to him
in carrying out a war plan can never be considered a conspirator. He
does, in fact, have a plan in common with his superior, but he has not
adopted it of his own accord, nor has he concluded an agreement to that
effect, but within the normal scope of service he simply does what the
post he occupies demands.
Jodl in particular can be considered a typical example of this. He did
not go to Berlin of his own free will. It had already been decided long
before that he would enter the Führer’s staff in case of war. Orders for
the current mobilization year specified this. This mobilization year
ended on 30 September 1939; for the following year General Von
Sodenstern was already designated as Chief of the Armed Forces
Operations Staff. Therefore, if the war had broken out 6 weeks later,
Jodl would have entered the war as commander of his mountain division.
He would then, in all probability, not be in this dock today. Thus it
becomes clear that his whole activity in the war was fixed by a ruling
which was independent of his will and had been laid down in advance long
before. This fact is, in my opinion, in itself already striking proof
that he did not participate in a conspiracy to wage wars of aggression.
When Jodl reached Berlin on 23 August 1939, the beginning of the war had
been fixed for 25 August. For reasons unknown to him it was then
postponed another 6 days. The plan for the campaign was ready. He did
not need to conspire to produce it. If any conspiracy against Poland did
exist at that time, the conspirators were to be found elsewhere, as we
now know from the German-Russian Secret Treaty.
Jodl was not introduced to the Führer until 3 September 1939, that is
after the war had begun, at a time when the final decision had already
been taken. From then on his official position brought him close to
Adolf Hitler; but, of course, one must add, close to him in locality
only. He was never really on intimate terms with him. Even then, he did
not learn of Hitler’s plans and intentions and was only told of them as
the occasion arose to the extent that his work absolutely demanded. Jodl
never became Hitler’s confidant and never had cordial relations with
him. It remained a purely official relationship—often enough one of
conflict.
In other ways, too, Jodl had remained a stranger to the Party. There is
no suggestion of his having sought contact in Vienna, for instance, with
the local Party leaders, although this would have been natural enough.
Most of the Party leaders and most of the defendants he came to know
only when they visited the Führer’s headquarters from time to time. With
the exception of the officers, he had no relations with them. He
abominated the Party clique in the headquarters and considered it an
unpleasant foreign body in the military framework. He never ceased to
fight against Party influences in the Armed Forces.
He did not attend Party functions. He did not take part in any Reich
Party rally, apart from the fact that he once watched the Armed Forces
display there on official orders. He never participated in the Munich
memorial days on 9 November. The prosecutor has repeatedly referred to
his Gauleiter speech to prove that, in spite of all this, Jodl
identified himself with the Party and its efforts, and that he was after
all not a soldier but a politician, and an enthusiastic supporter of
Hitler.
Here one must first note that Document L-172, which is presented to us
as this Gauleiter speech, is not the manuscript of this speech but a
collection of material compiled by his staff, on the basis of which Jodl
then drafted his manuscript. In addition, the speech was made
extemporaneously. Not a single word of this document proves that Jodl
really spoke it. Also the occasion of the speech must be taken into
account. After 4 hard years of war, after the defection of Italy which
had just taken place, before the fresh terrific burden which Hitler
planned to impose on the population as the extreme effort, at this
critical moment everything depended on upholding the people’s will to
carry on. For that reason the Party tried to get expert information upon
the war situation so as to be able to buoy up sinking courage again. For
this task the Führer chose General Jodl, no doubt the only competent
person. Many a person would have welcomed this opportunity to make
himself popular with the Party leaders, but Jodl accepted the task
_contre cœur_ and against his will. The title of the address was: “The
Military Situation at the Beginning of the Fifth Year of War.” Its
contents are a purely military description of the war situation on the
various fronts, and how this situation was created. The beginning and
the end, at least according to the document before us, constitute a hymn
of praise to the Führer, from which the Prosecution draws unwarranted
conclusions. When a lecturer has first and foremost to win the
confidence of his listeners—consisting of Party leaders—and when his
task is to spread confidence in the supreme military leadership, then
such rhetorical flowery speech is quite understandable.
Incidentally, Jodl does not deny that he sincerely admired some of the
Führer’s qualities and talents. But he was never his confidant or his
fellow conspirator, and even in the OKW he remained the nonpolitician he
always was. Jodl was, therefore, not a member of a conspiracy. No
concept of a conspiracy can help to make him responsible for criminal
actions which he did not himself commit. And now I will deal with these
individual actions of which Jodl is accused.
According to Article 6 of the Charter, the Tribunal is competent to deal
with certain crimes against the peace, against the laws of war and
against humanity, as specified in the Charter and involving personal
criminal responsibility of the guilty individual. If we disregard for
the time being the crimes against humanity, which come under a special
heading, there are two preliminary conditions to any individual
punishment of the defendants:
(1) There must be a violation of international law in which they were
guilty of complicity in some respect. The point of this whole Trial and
that of the Charter after all lies in the fact that the force of the
rules of international law is to be strengthened by penal sanctions. If,
therefore, some specific violation of international law is committed,
not only the responsibility of the particular country which violated the
law will be established as heretofore, but in addition guilty
individuals shall also be punished for it in the future. Thus there can
be no punishment without a previous breach of international law.
(2) Provision for such a responsibility of individuals is however not
made in all cases of a breach of international law, but only for those
explicitly named in the Charter. Article 6(a) specifies the crimes
against peace, Article 6(b), crimes against the laws and usages of war.
Other actions, even if contrary to international law, are not mentioned.
Quite a few court sessions might have been dispensed with if the
Prosecution had taken these two points into account right from the
beginning, because, as I shall show, there is a tendency to accuse the
defendants, beyond these limits, of acts contrary to international law
which are not specified in the Charter. Nor is this all: they are to be
called to account also for deeds which are in no way contrary to law,
but can, at most, be considered as unethical. In the following points I
shall adhere to the clear arrangement of the Anglo-American trial brief
and add to it what was brought up against Jodl by the two other
prosecutors.
Point (1) Collaboration in the seizure and consolidation of power by the
National Socialists has, as I already pointed out, been dropped.
Points (2) and (3) concern rearmament and the reoccupation of the
Rhineland.
Jodl had nothing to do with the introduction of compulsory military
service or with rearmament. Jodl’s diary contains not a single word
about rearmament. He was a member of the Reich Defense Committee, which
was not, however, concerned with the rearmament questions. He was here
concerned with the measures which were to be taken by the civilian
authorities in case of mobilization. There was nothing illegal in that.
We were not forbidden to mobilize, for instance, in case of an enemy
attack. The preparations in the demilitarized zone, which were proposed
to the committee by Jodl, were also limited to the civilian authorities
and consisted only of preparations for the evacuation of the territory
west of the Rhine in order to defend the line of the river Rhine in case
of a French occupation. The preparations were purely of a defensive
nature.
If, in spite of that, Jodl recommended that these defensive measures be
kept strictly secret, this is not evidence of any criminal plans, but
was only the natural thing to do. As a matter of fact, particular
caution was imperative, for the French occupation of the Ruhr was still
fresh in people’s memories. Neither did Jodl have anything to do with
the occupation of the Rhineland; he learned about this decision of the
Führer only 5 days before its execution. Further comment on my part
should be superfluous, for according to the Charter neither rearmament
nor the occupation of the Rhineland—whether contrary to international
law or not—belongs to the criminal actions envisaged by Article 6.
These cases would come within the Charter only if a preparation for
aggressive war were seen in them. But who would have thought of an
aggressive war at that period? In 1938, owing to lack of trained troops,
we could not have put into the field one-sixth of the number of
divisions our probable enemies, France, Czechoslovakia, and Poland,
could have produced. The first stage of rearmament was supposed to be
reached in 1942. The West Wall was to have been completed by 1952. Heavy
artillery was entirely lacking; tanks were at the test stage; the
ammunition situation was catastrophic. In 1937 we did not possess a
single battleship. As late as 1939 we did not have more than 26 seagoing
U-boats, which was less than one-tenth of the British and French total.
As far as war plans were concerned there existed only a plan for the
protection of the Eastern frontier. The description of our situation in
the Reich Defense Committee is very typical. It was said that as a
matter of course a future war would be fought on our own territory;
hence that it could only be a defensive war. This—please note—was a
statement made during a secret session of this committee. The
possibility of offensive action was not mentioned at all. But we were
then not capable of serious defensive action either. For this very
reason the generals considered themselves gamblers already at the time
of the occupation of the Rhineland. But that any one of them could have
been sufficiently optimistic to contemplate an offensive, of that there
is not even the vestige of any evidence.
Points (4) to (6) of the trial brief refer to participation in the
planning and execution of the attack on Austria and Czechoslovakia.
A deployment plan against Austria never existed. The prosecutors have
submitted Document C-175 as such. But this is a misunderstanding; it is
merely a program for the elaboration of diverse war plans, such as for a
war against Britain, against Lithuania, against Spain, _et cetera_.
Among those theoretical possibilities of war, “Case Otto” is also
mentioned; this refers to an intervention in Austria in case of an
attempt to restore the Hapsburgs. It says in the document that this plan
was not to be worked out, but merely to be “contemplated.” But since
there was no indication whatsoever of such an attempt by the Hapsburgs,
nothing at all was prepared for this eventuality.
Jodl did not attend the meeting on 12 February 1938 at Obersalzberg. Two
days later came the order to submit plans for certain deceptive
maneuvers, obviously in order to put pressure on Schuschnigg so that he
should abide by the Obersalzberg agreements. There is nothing illegal in
this, although the prosecutor speaks of “criminal methods.” Jodl was
completely surprised by the Führer’s decision to march in, made 2 days
before it was carried out, and transmitted by telephone. Jodl’s written
order served only for the files. If this had been the original order, it
would after all have come much too late. It was issued at 2100 hours on
11 March and the troops marched in on the following morning.
Developments were described to us here. The troops had purely peacetime
equipment; the Austrians crossed the border to meet and welcome them;
Austrian troops joined the columns and marched with the German troops to
Vienna. It was a triumphal procession with cheers and flowers.
Then followed the case of Czechoslovakia. As late as the spring of 1938
Hitler stated that he did not intend “to attack Czechoslovakia in the
near future.” After the unprovoked Czech mobilization he changed his
view and decided to solve the Czech problem after 1 October 1938—not on
1 October 1938—as long as no interference was to be expected from the
Western Powers. Jodl therefore had to make the necessary preparations in
the General Staff. He did this in the conviction that his work would
remain theoretical because—since the Führer desired under all
circumstances to avoid a conflict with the Western Powers—a peaceful
settlement was to be expected. Jodl tried to make certain that his plan
should not be interfered with by Czech provocation. And things really
did turn out as he expected they would. After the examination by Lord
Runciman had revealed that minority conditions in Czechoslovakia could
not continue as they were and showed the correctness of the German point
of view, the Munich Agreement with the Western Powers took place.
Jodl is charged with having suggested in a memorandum that an incident
might be created as a motive for marching in. He has given us the
reasons for it. But no incident took place. This memorandum is not a
breach of international law, if only because it is a question of
internal considerations which never achieved importance outside. And
even if this idea had been put into execution, such ruses have been used
ever since the Greeks built their Trojan Horse. Ulysses, the initiator
of this idea, is praised for this by the ancient poets as “a man of
great cunning,” and not branded as a criminal. I do not see anything
unethical in Jodl’s behavior either, for after all in the relations
between states somewhat different ethical principles obtain than are
taught in Sunday schools.
The occupation of the Sudetenland itself was effected just as peacefully
as that of Austria. Greeted enthusiastically by the liberated
population, the troops entered the German areas which had been evacuated
to the agreed line by the Czech troops. Both these “invasions” are not
crimes according to the Charter. They were not attacks, which would
presuppose the use of force; still less are they wars, which would
presuppose armed fighting; least of all are they aggressive wars. To
consider such peaceful invasions as “aggressive wars” would be to exceed
even the notorious analogies evolved by National Socialist criminal
legislation. The four signatory powers could have included these
invasions, which were still a recent memory, in Article 6, but this was
not done because it was obviously intended to limit to acts of war the
completely novel punishment of individual persons, but not to penalize
such unwarlike actions. Generally speaking, any interpretation of the
penal rules of the Charter tending toward an extension is inadmissible.
The old saying applies: “_Privilegia stricte interpretenda sunt_.” Here
we have an example of _privilegium odiosum_. Indeed there has probably
never been a more striking example of a _privilegium odiosum_ than the
unilateral prosecution of members of the Axis Powers only. Now it might
also be attempted to make Jodl responsible for having drafted an
invasion plan against Czechoslovakia at a time when a peaceful
settlement was not yet insured. Jodl, however, counted on a peaceful
settlement and had good reason to expect it. He therefore lacked the
intention of preparing an aggressive war.
To this statement of facts, which excludes the question of guilt, must
be added a legal consideration: We have established beyond any doubt
that there is no punishment for crimes against the peace without
previous violation of international law. Now if the Charter makes
preparations for aggressive war subject to punishment, it clearly means
that a person who prepared an aggressive war which actually took place
should be punished. War plans, however, which remained nothing but
plans, are not affected. They are not contrary to international law.
International law is not concerned with what goes on in people’s heads
and in offices. Things which are immaterial from an international angle
are not contrary to international law. Aggressive plans which are not
executed—including aggressive intentions—may be unethical, but they
are not contrary to law and do not come under the Charter.
Here we are concerned with plans which were not carried out because the
peaceful occupation of the Sudetenland based on international agreement
was not an aggressive war, and the occupation of the rest of the
country, which incidentally was also accomplished without resistance and
without war, no longer had any connection with Jodl’s plans.
This occupation of the rest of Czechoslovak territory in March 1939 need
not be discussed in greater detail here, for Jodl was in Vienna at the
time and did not take part in this action. Neither did he have anything
to do with its planning, for that has no connection whatsoever with
Jodl’s earlier work in the General Staff. In the meantime the military
situation had changed completely; the Sudetenland with its frontier
fortifications was now in German hands. The unopposed entry which then
took place therefore followed totally different plans, if such plans
existed at all. Jodl did not take part in the actual invasion.
Point (7) of the trial brief deals with war plans against Poland. The
essential things have already been said on this subject: At the moment
when Jodl left Berlin, no deployment plan against Poland existed. When
he returned on 23 August 1939 the intention was to enter Poland on the
25th. The plan for this was naturally ready; Jodl had no share in it.
The Prosecution stresses further that Jodl was present in Poland in the
Führer’s train on 3 September and that this was proof that he took part
in the war. Is this, too, a reproach against a soldier?
Point (8) of the trial brief concerns attacks on the seven countries
from Norway to Greece. The trial brief gathers these seven wars,
together into one point, and quite rightly too. They form one unit,
because all of them resulted from military necessity and with logical
consequence from the Polish war and from Britain’s intervention. It is
for this very reason that the fact that Jodl had nothing to do with the
unleashing of the war against Poland is so important when judging him.
The historians will have to do a lot more research work before it is
known how everything really came about. The only criterion for the
judgment of Jodl’s behavior is how he saw the situation at its various
stages; whether, according to what he saw and knew, he considered
Hitler’s various decisions to wage war justified; and to what extent he
influenced developments. That is all that we are concerned with here.
In connection with Norway and Denmark, may it please the Tribunal, I
should like to refer to the statements made by Dr. Siemers the day
before yesterday, and therefore I shall omit what comes next, but I
should like to insert a statement at this point, namely, a statement
regarding international law which is not contained in my manuscript.
With reference to the statements made by Dr. Siemers in this regard the
day before yesterday, in order to avoid any misunderstanding, I should
like to add the following:
(1) There is not the slightest doubt that merchant ships of a state at
war may pass through the neutral coastal waters. If its enemy, in order
to prevent any traffic of that sort, mines the coastal waters, such
action is a clear breach of neutrality. Even warships have the right to
pass through, insofar as they adhere to the rules which have been
stipulated and do not participate in any combat action in the coastal
waters. And if this applies even to warships, it applies all the more to
ships which are transporting prisoners of war.
(2) The fact that a war is a war of aggression does not in any way
influence the validity and application of the normal war and neutrality
rights. A contrasting opinion would lead to absurd results and would
serve only to deal a deathblow to all the laws of war. There would be no
neutral states, and the relations between the belligerents would be
dominated by the principle of brute force. Each shot would be murder,
each instance of capture would be punishable deprivation of liberty,
each bombardment would be criminal material damage.
This war, in any event, was not conducted along such principles by
either side, and even the Prosecution does not uphold this point of
view...
THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): [_Interposing._] One
moment, Dr. Exner.
[_There was a pause in the proceedings while the judges conferred._]
THE PRESIDENT: Go on.
DR. EXNER: Nor does the Prosecution maintain this point of view,
otherwise they would not have charged the defendant with certain deeds
as being crimes against the laws of war and the rights of neutrals. The
entire charge under Count Three would not be understandable. And apart
from that, Professor Jahrreiss has dealt with this question on Pages 32
to 35 of his final argument.
Jodl heard for the first time in November 1939—and this from Hitler
himself—about the fears of the Navy that Britain was intending to land
in Norway. He then received information which left no doubt that these
fears were basically right. Furthermore, he had regular reports
according to which the Norwegian coastal waters were coming more and
more into the English sphere of domination, so that Norway was no longer
actually neutral.
Jodl was firmly convinced—and still is today—that the German troops
prevented the British landing at the last minute. No matter how Hitler’s
decision may be judged legally, Jodl did not influence it; he considered
the decision justified and was bound to consider it as such. So, even if
Hitler’s decision were to be regarded as a breach of neutrality, Jodl
did not give criminal help by his work on the General Staff.
Like every military expert, Jodl knew that if Germany had to fight out
the war in the West, there was no other course but a military offensive.
In view of the inadequacy of German equipment at the time and the
strength of the Maginot Line, there was, however, from a military point
of view, no other possibility for an offensive than through Belgium.
Thus Hitler was, for purely military reasons, faced by the necessity of
operating through Belgium. But Jodl also fully knew, as did every German
who had lived through August 1914, how difficult such a political
decision was as long as Belgium was neutral, that is, willing and able
to keep out of the war.
The reports which Jodl received, and of the accuracy of which no
justified doubts could be entertained, showed that the Belgian
Government was already co-operating, in violation of her neutrality,
with the general staffs of Germany’s enemies. This, however, can be
waived here in the defense of Jodl. It suffices to know—and this is
indisputable—that part of Belgium’s territory, that is, the air over
it, was being continually used by Germany’s Western enemies for their
military purposes.
And this applies perhaps even more strongly to the Netherlands. Since
the very first days of the war, British planes flew over Dutch and
Belgian territory as and when they pleased. Only in some of the numerous
cases did the Reich Government protest, and these were 127 cases.
THE PRESIDENT: Dr. Exner, will you refer the Tribunal to the evidence
which you have for that statement?
DR. EXNER: I beg your pardon?
THE PRESIDENT: Will you refer me to the evidence that you have for that
statement?
DR. EXNER: What statement, Mr. President?
THE PRESIDENT: That protests were made in 127 cases.
DR. EXNER: I am referring to the statements made by the witness Von
Ribbentrop. He said that 127 protests were made.
THE PRESIDENT: Go on.
DR. EXNER: The Prosecution does not put the legal question correctly.
Before air warfare gained its present importance, conditions were such
that a state wishing to remain neutral could prevent its territory from
being continually used at will by one of the belligerents, or else its
neutrality was clearly terminated. After air warfare became possible, a
state might relinquish or be forced to relinquish to one of the
belligerents the air over its territory, and yet remain outwardly and
diplomatically neutral. But by the very nature of the idea, the defense
of its neutrality can be claimed only by a state whose whole territory
lies _de facto_ outside the theater of war.
The Netherlands and Belgium, long before 10 May 1940, were no longer _de
facto_ neutral, for the air over them was in practice, with or against
their will, freely at the disposal of Germany’s enemies. What
contribution they thus made toward Britain’s military potential, that
is, toward the strength of one of the belligerents, is known to
everybody. One need only think of Germany’s most vulnerable point, the
Ruhr.
Our adversaries obviously maintained the point of view that insofar as
the barrier constituted by Holland and Belgium protected Germany’s
industrial areas against air attacks, their neutrality was immaterial;
but with regard to the protection afforded to France and England, any
violation was a crime.
Jodl naturally realized the situation. His opinion on the legal aspect,
was, of course, a matter of complete indifference to Hitler. Here, too,
his activity remained the normal activity of a General Staff officer.
THE PRESIDENT: One moment, please. Dr. Exner, is it your contention that
it is in accordance with international law that if the air over a
particular neutral state is made use of by one of the warring nations,
the other warring nation can invade that neutral state without giving
any warning to the neutral state?
DR. EXNER: In this respect I should like to maintain that this continual
use of the air space over a neutral state—that is, for purposes of
attack, for these planes flew over such territory in order to attack
Germany—was a breach of neutrality. This breach of neutrality justified
Germany’s no longer regarding Belgium as a neutral country. Therefore,
from the standpoint of the Kellogg Pact, or any previous assurance given
with respect to neutrality, no charge can be made against Germany in
this regard. Whether one can reproach Germany for the fact that she did
not declare war in advance is something I leave open to discussion.
Incidentally, it may be presumed that the flights made by the British
planes were not announced in advance either.
THE PRESIDENT: Well then, you are not prepared to answer the question I
put to you?
DR. EXNER: Yes. The question was to the effect, Mr. President, whether a
prior declaration was necessary; that was the question, Mr. President,
was it not?
THE PRESIDENT: Whether you can attack a neutral state without giving any
prior warning, that is, whether, in accordance with international law,
you can attack a neutral state in such circumstances without giving any
prior warning. That is the question.
DR. EXNER: My contention is that it was no longer a neutral state when
it was attacked.
THE PRESIDENT: Then your answer is in the affirmative; you say that you
can attack without giving any warnings, is that right?
DR. EXNER: There is an agreement in international law that war must
always be declared in advance. In that sense Germany would have been
bound to declare war beforehand. However, above and beyond that, because
of the fact that this was not a neutral state, I do not believe that any
other obligation still existed. I cannot see just why there should have
been any obligation toward this state because it had been neutral at one
time.
THE PRESIDENT: Well then, you say that there is a general obligation to
declare war before you actually invade. You don’t say, do you, that the
fact that Holland was a neutral state prevented that obligation
attaching?
DR. EXNER: That I am not prepared to assume. A general obligation I
admit, but I do not believe there was a special obligation because of
the former neutrality of Holland and Belgium. I fail to see what
justification could be given for that.
THE PRESIDENT: Go on.
DR. EXNER: Now I shall turn to Greece. Hitler wanted to keep the Balkans
out of the war, but Italy had attacked Greece against his will at the
beginning of October 1940. When the Italians got into trouble, a request
was made for German help. Jodl advised against it, since British
intervention in the Balkans would then have to be reckoned with and
every hope of localizing the Italo-Greek conflict would thus be lost.
Hitler then ordered everything to be prepared in case of need for German
aid to Italy against Greece. These are the orders of 12 November and 13
December 1940.
If the attempt to localize the Italo-Greek conflict did not succeed, it
was clear that Greece would be involved in the great Anglo-German
struggle. The question was now whether Greece would come within the war
zone controlled by the British or the Germans. In the case of Norway,
Belgium, and Holland, part of the territory of these countries was
already at Britain’s disposal before the beginning of open hostilities,
and they were, therefore, objectively at least, not neutral, which
possibly they could no longer be. It was the same with Greece now. The
Indictment referring to Greece established that British troops were
landed on the Greek mainland on 3 March 1941, after Crete had for some
time before that come within the area controlled by the British. Hitler
did not give permission for aerial warfare on Crete until 24 March 1941,
and began the mainland attack only on 6 April.
Here, too, Jodl had no influence on Hitler’s decisions. He could have no
doubt that Hitler’s decision was inevitable in view of the way in which
the war between the world powers was now developing. There was no
choice; ever-increasing parts of Greek territory would have been drawn
into the sphere of British power and would have become the jumping-off
points for bombing squadrons against the Romanian oil fields unless
Germany stopped this process. Moreover, the experiences of the first
World War were disquieting; the _coup de grâce_ had at that time been
made from Salonika.
Hitler wanted to keep Yugoslavia out of the war, too. The German troops
in the Balkans had the strictest orders to respect her neutrality
rigorously. Hitler even rejected the proposal by the Chief of the Army
General Staff to ask the Yugoslav Government for permission to allow
sealed trains with German supplies to pass through its territory.
The Simovic Putsch in Belgrade on the night after Yugoslavia joined the
Tripartite Pact was considered by Hitler to be a malicious betrayal. He
was of the opinion that the change of government at Belgrade, which
reversed the course of its foreign policy, was only possible if Britain
or the Soviet Union or both had provided cover from the rear. He was now
certain that the Balkans would be fully drawn into the war tangle. He
was certain that the German troops in Bulgaria were severely threatened,
and also the German supply line which ran close to the Yugoslav
frontier.
Under these conditions Hitler on the morning following the Belgrade
Putsch took the decision for war, any preparation for which was
absolutely lacking. Jodl’s suggestions, and later Ribbentrop’s too, to
make things unambiguous by means of an ultimatum, were never considered.
He wanted to make sure that Yugoslavia and Greece should not come into
the sphere of influence of Britain but into that of Germany. The next
day’s news concerning Moscow’s telegram of friendship to the Belgrade
Putsch government and about the Yugoslav deployment then already in
progress, as confirmed by the statement of the witness Greiffenberg
(Document Book 3, Document Number Jodl-65, Exhibit AJ-12), and lastly
the Russo-Yugoslav Friendship Pact, were for Jodl irrefutable signs that
Hitler had correctly foreseen the connection of events. The decision to
fight was taken by Hitler, and by Hitler alone.
Point (9) concerns the war against the Soviet Union. What each of the
two Governments in Berlin and Moscow actually wished to achieve by the
agreement of 23 August 1939 is not certain. One thing, however, is
certain, and that is that these partners who were until then enemies had
not arranged a love marriage. The Soviet Union was for the German
partner a completely mysterious quantity, and remained so. Anyone who
fails to consider this fact can in no way judge Hitler’s decision to
make a military attack on the Soviet Union, least of all the question of
guilt.
If anywhere, it was in the Russian question that Hitler came to a
decision without even listening to the slightest advice from anyone, to
say nothing of taking it. He wavered for many months in his opinion
about the intentions of the Soviet Union. The relations of the armies on
both sides of the demarcation line from the very beginning were full of
incidents. The Soviets at once occupied the territories of the Baltic
States and of Poland with disproportionately strong forces.
In May and June 1940, when there were only 5 or 6 German covering
divisions in the East, the Russian deployment against Bessarabia with at
least 30 divisions, reported by Canaris, and the deployment into the
Baltic territory caused great anxiety. On 30 June 1940 apprehensions
were again allayed, so that Jodl—as Document 1776-PS has shown—even
thought that Russia could be counted on as an aid in the fight against
the British Empire. But in July there were renewed worries. Russian
influence was progressing energetically in the Balkans and the Baltic
territories. Hitler began to fear Russian aggressive intentions, as he
told Jodl on 29 July.
The transfer of several divisions from the West, where they were no
longer required, actually had nothing to do with this. This occurred at
the request of the commander in the East who could not fulfill his
security task with his weak forces.
Hitler’s worry above all concerned the Romanian oil fields. He would
have preferred to eliminate this threat back in 1940 by a surprise
action. Jodl replied that owing to the bad deployment possibilities in
the German Eastern Territories this could not be considered before
winter. Hitler demanded verification of this opinion and Jodl arranged
for the necessary investigations in a conference with his staff at
Reichenhall, which was obviously misunderstood by the Russian
Prosecution. On 2 August Hitler ordered improvements to be made in the
deployment possibilities in the East—a measure which was no less
indispensable for defense than for an offensive.
Toward the end of August—this is the order of 27 August—10 infantry
divisions and 2 Panzer divisions were brought into the Government
General in case a lightning action should become necessary for the
defense of the Romanian oil fields. The German troops, now totaling 25
divisions, were indeed intended to appear stronger than they really
were, so that an action should become unnecessary. This is the meaning
of Jodl’s order for counterespionage (Document Number 1229-PS). Had
there been offensive intentions at that time, there would presumably
have been an attempt to make Germany’s forces appear smaller than they
were.
At the same time Hitler appears to have given the Army General Staff
orders—without Jodl knowing anything about it—to prepare an
operational plan against Russia for any eventuality. In any case, the
Army General Staff, General Paulus, worked on operational plans of this
kind as from the autumn of 1940.
Unfavorable information then accumulated after the Vienna arbitration on
30 August 1940. If Jodl was to believe his utterances, Hitler was
becoming convinced that the Soviet Union had firmly resolved to
annihilate Germany in a surprise attack while she was engaged against
Britain. The leaders of the Red Army had, according to a report of 18
September, declared a German-Russian war to be inevitable (Document
Number C-170). In addition, reports came in of feverish Russian
preparations along the demarcation line. Hitler counted on a Russian
attack in the summer of 1941 or winter of 1941-42. He thus decided,
should the discussions with Molotov fail to clear up the situation
favorably, to take preventive steps. For in that case the only chance
for Germany lay in offensive defense. For this eventuality, preparatory
measures were ordered by Hitler on 12 November 1940 (Document Number
444-PS).
The failure of the discussions with Molotov decided the question. On 18
December 1940 Hitler gave orders for the military preparations. Should
the coming months clear up the situation, all the better. But it was
necessary to be prepared in order to deliver the blow in the spring of
1941 at the latest. This was presumably the latest possible moment, but
also the earliest, since more than 4 months were required for the
deployment.
Jodl, as an expert, emphatically pointed out to Hitler the enormous
military risk which could be run only if all political possibilities of
averting the Russian attack were really exhausted. Jodl became convinced
at that time that Hitler actually had exploited every possibility.
The situation grew worse. According to reports which were received by
the Army General Staff at the beginning of February 1941, 150 Russian
divisions, that is, two-thirds of the total Russian strength known, had
deployed opposite Germany. Yet only the first stage of the German
deployment had begun.
The Soviet Government’s telegram of friendship to the participants in
the Belgrade Putsch on 27 March 1941 destroyed Hitler’s last hope. He
decided upon an attack, which however had to be postponed for more than
a month owing to the Balkan war.
The deployment was undertaken in such a manner that the mechanized
German units, without which the attack could not be conducted at all,
were brought to the front only during the last 2 weeks, that is, after
10 June.
Genuine preventive war is one of the indispensable means of
self-preservation, and was indisputably permitted according to the
Kellogg-Briand Pact. The “Right of Self-Defense” was understood by all
the signatory states.
If the situation was wrongly construed, the German military leaders
cannot be blamed for their error. They had reliable reports on Russian
preparations which could only make sense if they were preparations for
war. The reports were later confirmed. For when the German attack met
the Russian forces, the German command received the impression of
running into a gigantic deployment against Germany. General Winter
developed this here in detail in addition to Jodl’s statements,
particularly with regard to the enormous number of new airports near the
line of demarcation, and he drew particular attention to the fact that
the Russian staff units were provided with maps of German territories.
Field Marshal Von Rundstedt also confirmed this as a witness before the
Commission. This will come before the Tribunal during the further course
of the Trial.
Jodl firmly believed that Hitler would never have waged war against
Russia unless he had been absolutely convinced that no other path was
open to him at all. Jodl was aware that Hitler fully appreciated the
danger of a two-front war and would jeopardize victory over
England—which he thought was assured—only in the utmost emergency.
Jodl simply did his job as an officer of the General Staff. He was
convinced, and still is today, that we were waging a genuine preventive
war.
I come now to Point (10) of the trial brief, concerning war against the
United States. That Jodl had no desire to supplement the number of our
enemies with a world power is obvious, and is also shown by documents.
Now what is the position with regard to the responsibility for these
campaigns? A declaration of war is a decision in the field of foreign
politics, the most important one in the whole of this field. It depends
on the constitutional structure of the concrete state as to who is
responsible for this decision—politically, criminally, and morally—and
on the way the formation of a decision in the field of foreign politics
takes place in the state according to its constitution. Professor
Jahrreiss has said of this that in the Führer State it is exclusively
the Führer who has to make this decision. Anyone who advises him about
this cannot be responsible, for, if what the Führer orders is legally
right, he who influences this order cannot be acting illegally.
The Charter obviously represents the opinion that those who in any way
participate in the Führer’s decision or influence it are coresponsible.
If we take this legal conception as authoritative the question of
responsibility crystallizes into a problem of competence.
In every community the tasks of its organs must be limited; there must
be rulings on competence laying down what each official is called upon
to do and not to do. Thus in all states the relations between the
military and the civil administration are naturally regulated, just as
within the military and within the administration the tasks and the
relations between their thousands of offices are regulated. If things
were otherwise, chaos would reign.
Particularly in wartime the problem of competence in the relations
between the political and military leadership is important. The military
being the most important instrument of policy, the assistant may easily
try to become master, in other words, the military may try to interfere
in politics. It was German tradition to avoid this. The Bismarck Reich
took great pains to keep the officers far removed from politics; they
had no right to vote, were not allowed to go to political meetings, and
in fact any statements on politics made by an officer were looked upon
askance. For this might in some way be looked upon as taking sides,
which was severely prohibited. The military were to be politically
blind, completely neutral, and were to adhere to a sole point of view,
which was that of legitimacy, that is, subordination to the legitimate
ruler.
Thus in the years 1866 and 1870 when there was danger of war, it was not
Moltke but Bismarck who advised the king as to the political decision.
This changed during the last years of the first World War. General
Ludendorff became the strongest man in the Reich, owing to the force of
his personality and the weakness of his political opponents. People
often talk of Prussian militarism, and for the time when the military
had seized political power this was justified. The Weimar State
completely abolished this. The nonpolitical character of the Reichswehr
was stressed very emphatically and the military were again limited to
their particular field. This went so far that a civilian was made
minister for war, who had to represent the Reichswehr politically in the
Reichstag. The longest period of office was held by a Liberal Democrat
minister, who was meticulously careful to avoid all political influence
by the generals.
When founding the Wehrmacht Adolf Hitler maintained this sharp
distinction between politics and military, indeed he even stressed it in
a certain sense. He, who wished to make the whole people
political-minded, wanted a nonpolitical Wehrmacht. The soldier was
deprived of political rights: He was not allowed to vote or to belong to
any party, not even the NSDAP, as long as the old law on military
service was in force. In keeping with that, he also kept his generals
and highest military advisers away from any part in political affairs.
He also remained consistent toward his own party. When, after Fritsch
had gone, a new Commander-in-Chief of the Army was to be appointed, it
would have been easy enough to have chosen Von Reichenau, who had
National Socialist leanings, but he appointed Von Brauchitsch. He did
not want any political generals, not even National Socialist ones. His
point of view was that he was the Führer, he was the politician; the
generals had to see to their own affairs; they knew nothing about
politics. He did not even tolerate advice when it concerned politics.
The generals did, in fact, repeatedly venture to express doubts as to
his political plans, but were obliged to limit themselves strictly to
purely military points of view. This sharp division into political and
military spheres of competence is, for that matter, not
characteristically German. It applies also, if I am correctly informed,
to the Anglo-Saxon democracies, and indeed to a particularly pronounced
degree.
At any rate it was thus under Hitler: He made political decisions, and
it was only on their military execution that the generals had any
influence. It was their task to make the military preparations
corresponding to any political eventualities. But it was Hitler who
pressed the button which would set the machine in motion. The “whether”
and “when” were decided by the Führer. It was not for them to weigh the
advantageousness, the political feasibility, or the legal
permissibility.
Psychologically this attitude of the Führer became still more pronounced
owing to the almost inconceivable mistrust he felt toward his generals.
An extraordinary phenomenon; yet, anyone who disregards it can never
come to understand the atmosphere which reigned in the Führer’s
headquarters. It referred—he thought—to the reactionary attitude of
the officers’ corps. He never forgot that the Reichswehr had fired at
National Socialists in 1923. It was, moreover, the natural mistrust of
the military dilettante toward the military expert, for he wanted to be
a strategist; and also probably the mistrust of the political expert
toward political dilettantes in officers’ uniform. This mistrust of the
political insight of his military entourage was moreover by no means
entirely unfounded. For the generals had wanted to put a brake on his
rearmament plans, to hold him back from the occupation of the Rhineland,
and had expressed objections to his march into Austria and to his
occupation of the Sudetenland. And yet all these actions had succeeded
smoothly and without bloodshed. The generals felt like gamblers when
carrying out the plans, but Hitler was sure of his game. Is it to be
wondered at that their political judgment did not carry too much weight
with him, and is it to be wondered at that from the other side the
apparent infallibility of his political judgment met with more and more
recognition?
Thus Hitler tolerated no interference in his political plans, and the
result of it, as has been drastically represented to us here, was that,
had a general raised objections to Hitler’s political decisions, he
might not actually have been shot, but his sanity would have been
questioned.
Altogether this man of power detested being given advice. Thus at the
beginning of military undertakings the chances of the plan were hardly
ever considered in general discussions. None of the important decisions
since 1938 came about as the result of advice. On the contrary, the
decision often came as a total surprise to the military command. This
applies, for instance, to the march into Austria, of which Jodl learned
2 days before it happened, or in the case of the attack on Yugoslavia,
which was suddenly decided upon by Hitler and carried out without any
preparations within a few days. The alleged “discussions” at the
Führer’s headquarters, the course of which the witness Field Marshal
Milch described so clearly, were nothing but briefings.
Within the Wehrmacht the spheres of competence of the individual
departments were also, of course, sharply divided, and the method which
Hitler used to make these divisions as insurmountable as possible is of
interest. This was achieved by the method of secrecy. Enough has been
said about this, particularly about the so-called “Blinkers’ Order,”
which forbade anybody to obtain insight into anybody else’s work. Thus
each department was isolated and strictly limited to its own tasks.
Obviously what Hitler desired to achieve by this system was that he
should retain the reins in his hands as the only fully informed person.
Indeed he strengthened this system still more by only too often playing
off individuals, groups, and departments one against the other to
prevent any conspiracy among them.
Mr. President, I have concluded my paragraph.
THE PRESIDENT: We will adjourn now.
[_A recess was taken._]
DR. EXNER: These methods of isolationism which I mentioned before are
interesting, because they often inevitably came into conflict with one
of the basic ideas of National Socialism, the Führer Principle; but they
were carried through in spite of this, for instance when the competence
of two departments covered the same territory, such as the competence of
a military commander and of Himmler in the same occupied territory. What
was ordered by one did not concern the other, even though the execution
of the order might encroach upon the arrangement for which the other was
responsible. Thus the military commander was in no way master in his
territory. Things were the same in the civil administration too: There
was the double role of the Landrat as a State functionary and the
Kreisleiter as a Party functionary, of the Reichsstatthalter and the
Gauleiter.
Everywhere there was a dualism of powers and therefore a dissipation of
power. There was method in this; it prevented lower organs becoming too
strong and safeguarded the power of the supreme leadership. It may be
said epigrammatically that the Führer Principle was realized only in the
Führer.
What was the position of Jodl’s sphere of competence within all this
machinery? He was the Chief of the Armed Forces Operations Staff, which
was a department of the OKW coming under Keitel. Jodl’s main task was,
as the name of the department implies, to assist the Supreme Commander
in the operational leadership of the Armed Forces. He was the Führer’s
adviser on all operational questions—in a certain sense the Chief of
the General Staff of the Armed Forces. The task of this Chief of the
General Staff, in all countries in which this arrangement is known, is
not that of giving orders but of advising, assisting, and carrying out.
This goes to show that Jodl’s position has frequently been misunderstood
during the course of this Trial.
(1) He was not Keitel’s Chief of Staff, but the chief of the most
important department of the OKW, though he had nothing to do with the
other departments and sections of the OKW.
Here I have to make an interpolation in deviation from my manuscript. He
was also not Keitel’s deputy. In Berlin Keitel was represented by the
senior departmental chief, and that was Admiral Canaris. At the Führer’s
headquarters there was only the Armed Forces Operations Staff, for whom
Jodl reported directly to the Führer. He had nothing to do with the
other sections of the OKW.
(2) It is also a mistake that Jodl is designated by the Prosecution as
the commander of one campaign or another. He had no power of command,
let alone command of an army.
(3) It was equally wrong when it was repeatedly said that Warlimont was
present at the meeting of 23 May 1939 as Jodl’s deputy or assistant.
Warlimont was in the OKW at the time; Jodl had left the OKW in October
1938 and had nothing more to do with Warlimont in May 1939.
What is indicated by all this with reference to Jodl’s responsibility
for the real or alleged wars of aggression? In general, one can only be
made responsible for what one does criminally when one should not do it,
and for what one has criminally neglected to do when one ought to have
done it. What an officer or an official has or has not got to do is a
question of competence. So this is where the problem of competence
assumes its importance for us. Let us look at it more closely:
Jodl is accused of having planned and prepared certain wars which were
breaches of international law. This reproach would be justified only if
it was within his competence to examine, before he carried out his task,
the legality of the war which might be waged, and to make his
co-operation dependent on this decision. This must be very definitely
contested. Whether or not to wage a war is a political question and is
the politician’s concern. The question of how to wage war is the only
question concerning the Armed Forces. The Armed Forces can suggest that
the war is, in view of the opponent’s strength, too risky, or that the
war cannot be waged at a particular season, but the final decision rests
with the politicians.
I could, to be sure, imagine that the Chief of the Armed Forces
Operations Staff might become at least morally guilty of complicity in a
war of aggression if he had incited the decisive quarters to bring about
a war, or if, drawing attention to military superiority, he had advised
the political leadership to exploit the propitious moment in order to
carry out extensive plans of conquest. In such a case one could call him
an accomplice, because he, over and above his military task, intervened
in politics and provoked the decision for war. But if he plans and
carries out the plan of a possible war, that is, in case the political
leadership decides on war, he does nothing but his evident duty.
One should consider the extraordinary consequences which would arise
from a different conception: The competent authority would declare war,
and the Chief of the General Staff, who regards this war as contrary to
international law, would fail to co-operate. Or the Chief of General
Staff happens to be of the same opinion as the head of the State, but
one of the army commanders has objections and refuses to march, while
another one has doubts and has to think it over first. Can war be waged
at all in this case, be it a war of defense or a war of aggression?
Such a conception of law would, in the future, lead to highly
problematical results. The Security Council of the Allied Nations has
decided to set up a World Police with the task of protecting world peace
against aggression. At the same time the creation of a World General
Staff has been considered which would have to plan and carry out this
punitive war. Now let us imagine that the Security Council decides on a
punitive war and the Chief of the General Staff replies that in his
opinion there is no aggression. Would not the whole security apparatus
in this case depend on the subjective opinion of a single nonpolitical
person, that is, would it not in fact become illusory?
I need only add one more thing in passing: If this opinion should
prevail, what efficient man would still decide to become a regular
officer, if, on reaching a high position, he would risk being put on
trial for crimes against the peace in case of defeat?
Moreover, for that matter, it is wrong, even if only for practical
reasons, to impose on a general the duty of examining the legality of a
war. The general will only seldom be in a position to judge whether the
state to be attacked by him has broken its neutrality or whether it
threatens to attack or not. And, furthermore, the conception of a war of
aggression and of a war contrary to law is, as Professor Jahrreiss has
explained, still completely unclarified and contested among scholars of
international law. Yet a general, who lives far apart from all these
considerations, is expected to recognize that it is his duty to carry
out a legal investigation?
But even if he had recognized the war as illegal, just let us imagine
the really tragic position in which this general would find himself. On
one hand there is his obvious duty toward his own country, which he has
taken an oath as a soldier to fulfill, on the other side this obligation
not to support any war of aggression, a duty which forces him to commit
high treason and desertion, and to break his oath. One way or the other
he will become a martyr.
The truth is this: As long as there is no superstate authority which
impartially establishes whether, in a concrete case, such a duty does
exist for the individual, and as long as there is no superstate
authority which will protect against punishment for high treason and
desertion people who fulfill this duty, an officer cannot be held
criminally responsible for a breach of the peace. Whatever the
circumstances, one thing must be pointed out: On the one hand the
Prosecution reproaches the generals for not having been simply soldiers,
but also politicians; on the other hand, it demands of them that they
should remonstrate against the political leadership and sabotage its
resolutions—in short, that they should not simply be soldiers, but
politicians.
The Prosecution do actually acknowledge this up to a certain point. They
say that it is not intended to punish the generals for having waged
war—for this is their task—but they are reproached for having caused
the war.
And the second argument, which often recurs, is that without the
generals’ help, Hitler could not have waged these wars, and that makes
them coresponsible.
This argument contradicts itself. For the help which the generals gave
Hitler consisted in planning and carrying out military operations, that
is, in waging the war, for which, in the opinion also of the
Prosecution, they cannot be criminally charged. Let us examine this more
closely: Jodl is said to have caused wars. It has been sufficiently
proved that he played absolutely no part in the launching of the Polish
campaign. And it was this very campaign which, with strategic necessity,
brought about all the further happenings.
Actually one need not examine the origins of the individual wars at all
to be able to say, in view of all that we know now, that in this
assertion there lies an enormous overestimation of Jodl’s power in the
Hitler State. The decision to start the war was far removed from his
influence. On this very point advice from the generals was not heard. At
most, purely military considerations could be submitted. And the
Norwegian campaign was the only one of all these campaigns which a
military man advised Hitler to carry out for reasons of strategic
necessity. But that was not Jodl. As regards the latter, the assertion
that he caused wars would be founded on nothing. Let the transcript, the
memorandum for his speech, or any other document be shown according to
which Jodl at any time incited people to war, or even only recommended
the decision to start a war. His Gauleiter speech is submitted against
him. In it Jodl shows—looking back—how the events developed one out of
the other. For instance, how the Austrian Anschluss facilitated action
against Czechoslovakia, and how the occupation of Czechoslovakia
facilitated the action against Poland. But it is bad psychology to
deduce from this that a general plan for all this existed from the
first. If I buy a book which draws my attention to another one, and I
then buy the latter as well, does it follow that at the time of the
first purchase I already had the intention of getting the second one as
well? If Hitler had extensive plans right from the start, Jodl did not
know of them, let alone consent to them. His purely defensive deployment
plan of 1938 already proves that by itself alone. Every time a campaign
had been resolved upon, he did indeed do his bit to carry it out
successfully. It is this supporting activity which is the object of the
second of the arguments mentioned earlier.
It is true that without his generals Hitler could not have waged the
wars. But only a layman can construct a responsibility on that basis. If
the generals do not do their job, there is no war. But one must add: If
the infantryman does not march, if his rifle does not fire, if he has
nothing to clothe himself with and nothing to eat, there is no war. Is
therefore the soldier, the gunsmith, the shoemaker, the farmer guilty of
complicity in the war? The argument is based on a confusion between
guilt and causation. All these persons, and many others too, effectively
co-operated in the waging of the war. But can one therefore attribute
any guilt to them? Does Henry Ford share in the responsibility for the
thousands of accidents which his cars cause every year? If an
affirmative answer is given to the question of causation, the question
of guilt is still not answered. The Prosecution even refrains from
putting this question.
The question of guilt will be discussed later. Here only the following
is anticipated: Criminal participation in the planning and carrying out
of a war of aggression presupposes two things:
(1) That the person involved knew that this war was an illegal war of
aggression;
(2) that, by reason of this knowledge, it was his duty to refrain from
co-operating in it.
The latter links up with what has already been mentioned: By virtue of
his position it was Jodl’s duty to make plans. Whether they were used or
remained unused did not depend on him; it is characteristic that Jodl
made a whole series of deployment plans which were never carried out.
All general staff plans are only drawn up for an eventuality in case the
political leadership should “press the button.” Often they did it; often
they did not. That was no longer a matter for the general staff officer.
The other presupposition for an accusation of guilt is that the person
involved recognizes the war as a war of aggression. The question is,
therefore, how these things appeared to him. How they were in reality
interests the historian. The decisive question for the criminal lawyer
is: What reports were submitted to Jodl about the conduct of the enemy?
Could it be taken from these reports that the enemy was acting contrary
to his neutrality; that he was preparing an attack on Germany, _et
cetera_?
The decisive point is not whether these reports were true, but whether
Jodl believed them to be true. I must stress this, because it has been
said here at times: “The Tribunal will decide whether this was a war of
aggression.” That, of course, is true, because if the Court decides that
it was not a war of aggression, no sentence for waging a war of
aggression will be pronounced. But if the Court agrees that the war was,
in fact, launched illegally, this does not in itself affirm the guilt of
any person.
Someone who takes someone else’s watch in the belief that it is his own
is no thief. The guilt is lacking, for had it really been his own watch,
he would not have been liable to punishment. So if Jodl believed that
facts existed which, had they been true, would have made the war a
legally admissible one, no sentence for breach of the peace can be
pronounced.
Now, the Prosecution have repeatedly asked the generals the ironical
question how it conformed with the code of honor of an officer to assist
in a war which they had recognized to be illegal.
Let us assume that Jodl was sure that the war was illegal and that he
had, for reasons of conscience, refused to collaborate. What difference
would there then have been between him and a soldier who throws away his
rifle in battle and retreats? Both of them would be liable to the death
penalty for disobeying orders in war.
I know that the United States is generous enough to respect a soldier
who, for religious reasons, refuses to take up arms, and not treat them
as we do. But that applies only to religious scruples, and doubtless
does not apply to a man who, owing to objections based on international
law, does not co-operate in the war decided on by the political
leadership. One would object that it is not his affair, not an affair of
his conscience to examine the admissibility of the war, but that this is
the duty of the responsible state authorities. According to continental
law, one would not even stop to consider such an excuse for refusing
obedience.
Furthermore, I regard that ironical question to the generals merely as
an attempt to humiliate them morally, but not as an accusation touching
the subject of this Trial. The International Military Tribunal is not a
court of honor which decides about dishonorable actions of the accused,
but a criminal tribunal which has to judge certain actions which have
been declared criminal by the Charter. It appears to me that the
Prosecution forgot this fact on several occasions.
Before I pass on to the last point, the 11th of the Anglo-American trial
brief, regarding crimes against the laws of war and humanity, I must
make a few preliminary remarks.
[sm type begins]First, a misunderstanding has to be cleared up. The
Prosecution says that we wanted to wage a total war, thereby meaning a
war which is waged by all methods, regardless of whether legal or
illegal, in short, a war where the laws of war are ruthlessly violated.
I was not a little surprised when I read this. We have indeed spoken
enough about total war during the past 7 years, but we understood
something quite different by it. We describe as total war a war waged
with all the means of the spirit, of manpower, and of material, and
mobilizing all the nation’s forces; that is, a change-over of the entire
economy to war needs, conscription of every single man capable of
bearing arms, and of every single able-bodied woman, and if possible
also of the young people. German soldiers from the East, who were
familiar with Russia’s example, jeered when we spoke of “total war”; had
we not still three greengrocers on every street and tobacconists at
every corner? That was no total war, they said, when so many workers
were enrolled for nonmilitary purposes, when whole factories were still
producing articles which had no connection with the war, and so forth.
The war really had to be a total war, they said, if it was to be won,
but that has nothing at all to do with contempt for the laws of war. I
have never heard the word interpreted in this sense.[sm type ends]
[sm type begins]In the Anglo-American trial brief, Jodl is charged
altogether with three documents (They concern the Commando Order and the
capitulation of Leningrad. A fourth, 886-PS, was subsequently withdrawn
by the Prosecution). The French and Russian prosecutors have, however,
made further additions.[sm type ends]
Again we must turn first to the question: Wherein lay Jodl’s
responsibility as Chief of the Armed Forces Operations Staff?
As we know, Jodl was primarily the adviser of the Führer with regard to
the operational direction of the Armed Forces. This staff, however, had
still other departments in addition to the operations departments of the
three branches of the Armed Forces. When the operational tasks increased
tremendously during the winter of 1941-42, a division of work was
arranged between the Chief of the OKW and Jodl, according to which Jodl
was only responsible for the military operations and the drawing up of
the Armed Forces report, while the Chief of the OKW worked on all other
matters in connection with the Quartermaster Department and the
Organizational Department of the Armed Forces Operations Staff. It
follows from all this that Jodl had nothing to do with prisoners of war,
for which a special department in the OKW was responsible, nor with the
administration of the occupied territories, and therefore had nothing to
do with the seizure of hostages and with deportations. I shall discuss
UK-56 later. Jodl did not have anything to do with police tasks in the
zone of operations or in the rear military zone. The Armed Forces
Operations Staff had no authority to issue orders; nevertheless, there
are many orders which Jodl signed either “by order” or with his own “J.”
We must now discuss these orders and the responsibility for them:
(1) There are orders which commence with the words “The Führer has
ordered” and are signed by Jodl, or signed by Keitel and initialed by
Jodl. These are orders which were given by the Führer orally, with the
order to Jodl to draft them or put them into writing. With regard to
responsibility, the same applies here fundamentally as applies to the
orders signed by Hitler. For, in order to determine the responsibility,
one must ask the question: What was the task of the person to whom the
order was communicated? To what was he entitled and what was he obliged
to do?
When the contents of the order were fixed in all their essential points,
Jodl’s task was only a formal one: he had to formulate what was already
established, to give it the usual form of a military order, without
being allowed to alter anything in its contents. It must not be
overlooked that the criminality of an order can only lie in its contents
and that it was precisely the contents which a subordinate had no
influence on here. In this case the reason for immunity from punishment
for the subordinate does not lie in the fact that he was ordered by his
superior officer to act thus or thus, but in his lack of competence to
alter anything in the given facts. The Prosecution sees in the
formulating of the order criminal assistance, but I find it impossible
to agree with this: In the first place because it is an order of the
Führer’s which creates law, so that criminal assistance is impossible;
but even if this is not accepted, and a Führer’s order is, on the
contrary, considered as illegal and as punishable, one can still not
close one’s eyes to the fact that it was not Jodl’s business to examine
the legality, but only to draw up the order in a technically correct
manner, that is, in accordance with the will of the author of this
order. If he did this and only this, he has no responsibility. Here the
superior essentially gave the order himself, and the subordinate just
put it into words.
Naturally one will wish to make a difference between a clerk being given
the job of writing down the order, and a senior general. Although the
latter may not have the legal, he will however have the moral duty of
expressing his scruples to his superior. Jodl actually always did this;
this was the least of his various methods of preventing an illegal move,
to which I shall refer later.
(2) Another very frequent case is where Jodl signed his order “I.A.,”
that is, “Im Auftrag” (by order), or initialed with his “J” orders
signed by Keitel. Where does the responsibility lie here? We shall have
to differentiate here between military and legal responsibility. From
the military point of view, the superior, by whose order the order is
signed, is responsible for it. Criminal law, however, lays the emphasis
on the guilt, that is, it desires to establish the real culprit, not the
person responsible from the military point of view. Since, however, the
owner of the initial or the person signing “by order” is mostly the
author of the document, it may happen that the latter is responsible
from the point of view of criminal law, although he is not responsible
in the military sense. For this reason it is necessary here to ascertain
the actual share of both signatories in each case, and to determine
culpability accordingly.
(3) Where Jodl did not sign his initial on the right below the last word
of the document, but in the top right-hand corner of the first page,
this means merely that the document was submitted to him for his
information. It does not say whether he actually read it or approved it.
Initials affixed in this manner do not, therefore, in themselves connect
the person initialing the order with the contents from the point of view
of criminal law.
(4) Jodl is also being charged with certain notes, partly so-called
“memoranda,” partly handwritten remarks which he wrote on drafts or
other documents. What is the position with regard to the legal
significance of such notes?
The following statement has already been made in “Case Green” in
connection with the tentative proposal to manufacture an incident. A
memorandum contains the deliberations, statements of fact, and opinions
of the author or of other authorities, _et cetera_. It is not an order,
but the data on the basis of which the superior can decide whether he
will issue an order and what order. As long as such a memorandum remains
a memorandum, it is a purely internal affair without any significance in
international law, and can never be a violation of the laws and customs
of war. This was explicitly laid down as the prerequisite for punishment
in Article 6(b) of the Charter.
The same applies to marginal comments which so often occur in the files
of the OKW: “Yes,” “No,” or “That is impossible,” _et cetera_.
Admittedly, such memoranda or marginal comment may obtain legal
significance. If a memorandum contains a proposal which is contrary to
international law, and if it influences the superior in such a way that
he issues an order with the same contents, this might possibly be
regarded as participation in a violation of international law. If,
however, no order is issued, or if an order is issued which is contrary
to the proposal, then this proposal has remained without effect, a
purely internal matter, and unpunishable under all circumstances.
Furthermore, a memorandum or marginal comment may be a guide to the
writer’s sentiments. It may be gathered from it that he is inclined
favorably toward international law or that he pays no heed whatsoever to
considerations of international law. That may often be an important help
in judging his character.
But we do not punish sentiments. Murderous intentions throw a bad light
on the subject, but are not punishable. Caution must, of course, be
exercised in the evaluation of such remarks. They are often thrown in
thoughtlessly, without much aforethought, intended only for the reader
in question.
If we take all this into account, several of the accusations which the
prosecutors have raised against Jodl are eliminated in advance:
(1) His behavior on the matter of the low-flying airmen (Documents
731-PS, 735-PS). It was proposed to leave low-flying airmen who attacked
the civilian population in a truly criminal manner, as happened again
and again, to the lynch law of the people. Jodl was opposed to this
idea, since it was bound to lead to the mass murder of all airmen who
parachuted. Jodl raised objections in the form of marginal comments. He
succeeded in sabotaging the order and the Armed Forces never issued it.
This should be counted to Jodl’s credit, but it is apparently held
against him that he did not use words of moral indignation in declining
the proposal. Under the conditions existing at the time, that might even
have had the opposite effect. In any case there is no crime here.
(2) The Commissar Order—Document 884-PS. On this horrifying draft
order—it is only a draft—which had been drawn up already prior to the
outbreak of the Russian war, Jodl made the comment that it would provoke
reprisals against our soldiers and that the order should preferably be
drawn up in the form of a retaliatory measure; that is, one should wait
and see what action the commissars really took, and then perhaps take
countermeasures. Again he is not given credit for the fact that he
opposed it, but he is accused of the manner in which he opposed it. From
a legal point of view that is meaningless. Later Jodl had nothing more
to do with this matter. He did not even receive any communication
regarding the success of his protests.
(3) The Geneva Convention—Document D-606. In this case Jodl did not
only submit a memorandum, but also a statement in great detail, to
Hitler, as he wished under all circumstances to thwart the latter’s plan
of renouncing the Convention. There he mentions all the reasons against
the renunciation, and reassures Hitler afterward by saying that it is
possible to circumvent certain clauses even without a renunciation of
the Convention. This again is not an action contrary to international
law, but shows at the most sentiments opposed to international law. More
correctly, it appears to do so. In truth this was nothing but accepted
tactics for dissuading Hitler from his infamous plan. The renunciation
did not take place. By taking offense at the unethical argumentation,
one is overlooking the fact that Jodl, after 5 years’ experience, knew
better than we do with what arguments it was possible to persuade his
chief.
(4) The order regarding Leningrad—Document C-123. By letter of 7
October 1941 Jodl notified the Commander-in-Chief of the Army—and it is
nothing but a notification—that Hitler had repeated an already
previously issued order to the effect that an offer of capitulation was
not to be accepted from either Leningrad or Moscow. Such an offer was,
however, never made, and the order could not therefore have been carried
out at all. The whole matter remained on paper, and, if only for that
reason, does not constitute a violation of international law. This also
can at the most be regarded as a guide to the author’s sentiments, but
has no place in an indictment as a punishable action. The following
should, however, be added in explanation of the matter. In this letter
Jodl explained the indisputable dilemma which had caused Hitler to issue
this order:
(a) An offer of capitulation was expected to be simulated. Leningrad, in
fact, was mined and would be defended to the last man, as the Russian
radio had already announced. The bad experiences as a result of
delayed-action mines, prepared according to plan, in Kiev, Odessa, and
Kharkov, had taught the German Operations Staff what things they must
beware of.
(b) In addition there was the great risk of an epidemic, which would
also arise in case of a genuine capitulation. Even if for that reason
alone, German troops must not be allowed to enter the town. Acceptance
of a capitulation was thus entirely impracticable.
(c) Added to that was the utter impossibility that the German troops
should feed a half-starved city population of millions. The railway
tracks had not as yet been adapted to the width of the German gauge, and
even supplies for the troops caused much worry. And finally there was
the military danger to the German operations, of which Field Marshal Von
Leeb had complained to the Defendant Keitel.
All this required steps to be taken to prevent the population of the
towns from fleeing westward and southward through the German lines, and
rather to make escape to the East possible for them, indeed, even to
encourage it. Hence the directive to leave gaps in the front lines in
the East.
The fact that Hitler let it be seen how he intended to utilize the
military situation of constraint for the benefit of his Eastern plans
lies outside the military considerations. That has nothing to do with
the order itself. The only question is whether the order was inevitable
from a military point of view, and this in fact it was for the
afore-mentioned reasons. Whether or not the order was given anew by Jodl
could not alter the situation in any way.
I shall now discuss individual war crimes of which Jodl has been
accused:
(a) The Commando Order.
Two orders of 18 October 1942, which were drawn up word for word by
Hitler and signed by him, have played a special part in this Trial: the
so-called Commando Order to the troops, Document 498-PS, and the
explanatory order pertaining thereto given to the commanders, Document
503-PS.
According to their substance these orders lie outside Jodl’s sphere.
That Jodl had anything to do with the matter at all was due to a special
reason: The orders are directives for the execution of an order which
had been issued by Hitler 11 days previously, which had also been drawn
up by him personally and attached to the Wehrmacht communiqué of 7
October 1942. Jodl composed this communiqué as usual, including the
supplement regarding the previous history of the order which Hitler
afterward ordered to be added at the end of the communiqué. Hitler
therefore requested him to work out drafts for the executive order. Jodl
did not do so, nor did he submit to Hitler a report which his staff had
drawn up on their own initiative. On the contrary, he had Hitler, with
whom his relations were very strained at that time, informed that he was
not in a position to comply with the request. Hitler then drew up the
two orders himself.
Jodl is now accused of two things: He distributed the orders drawn up by
Hitler through official channels, and he furnished the second, the
explanatory order, to the commanders with a special directive for
secrecy.
The order arose from Hitler’s excitement about two kinds of intensified
warfare which made their appearance about the same time, in the autumn
of 1942. One was the fatal efficiency of excellently equipped sabotage
detachments which landed by sea or were dropped from the air. The other
one was exceptional savagery in the fighting methods of enemies who
acted singly or in small groups.
Jodl has described here how this savagery appeared from the messages and
photographs of the troops. Experience showed that these methods, which
violated all military ethics, were encountered especially among sabotage
detachments. Hitler wished to counteract these unsoldierly methods and
to stop the sabotage activity which was so dangerous to the German war
effort, but he knew that sabotage could not be objected to on grounds of
international law if carried out by regular soldiers. Hitler’s first
order, the one contained in the Wehrmacht communiqué of 7 October 1942,
is therefore quite simply explained: No mercy will be shown to enemy
soldiers who appear in sabotage detachments and behave “like bandits,”
that is, who place themselves outside the military code by their method
of fighting.
The implementing directives should have defined the standard of
unsoldierly conduct; Hitler’s implementing directive did not contain
this definition; in the decisive points it was not definite at all, and
this made it possible to apply the order in the sense of its undoubtedly
justified fundamental idea, or not to apply it where there was the
slightest doubt as to whether it was a case of “bandits.”
After all the reports which had been received about the enemy’s
behavior, Jodl considered the basic principles of Hitler’s directive in
the Wehrmacht communiqué of 7 October 1942 understandable, and thought
that the directives given by Hitler in the Commando Order of 18 October
1942, which were in some points not clear, were in part admissible from
the point of view of international law, and in part perhaps questionable
from the same point of view. He says that he knows no more exactly now
than he did then whether and to what extent these directives were
contrary to international law. He says that one thing only was certain,
namely, that the indefinite wording of the order made it possible for
the commanders to apply the order only against people who had clearly
placed themselves outside the bounds of soldierly behavior.
Jodl hoped that this would be the method applied and, as far as he
could, he promoted it, as is proved by the evidence. He used all his
power to help ensure that the practical application of the Commando
Order was restricted to what was undoubtedly admissible. He took steps
to insure, further, that the order would not be applied in large areas,
that is, in the greater part of Italy, as soon as it was at all possible
to wrest a local limitation from Hitler (Document 551-PS).
The directive for secrecy is interpreted as a sign of Jodl’s
consciousness of guilt. But this secrecy had cogent reasons of a
different nature. The enemy had to be prevented, as far as possible,
from learning what serious damage was caused by the sabotage detachments
which were operating in a bandit-like manner. Hence the special
directive for secrecy only in the order (Document 503-PS) which gives
information about the damage, while the main order was known to the
whole world through the Wehrmacht communiqué. There was actually also a
second reason for Jodl’s imposition of special secrecy on the
explanatory order. He did not wish to see circulated the final decree,
according to which captured Commando personnel were to be shot after
interrogation. It revolted him as a human being to exclude unsoldierly
fighters from the protection of the Geneva Convention, whether such a
course was admissible or not according to international law. He hoped
that the commanders would find ways of preventing inhuman acts in
individual cases by means of a sound interpretation, and unauthorized
persons were not to have knowledge of the decree.
The fundamental idea, which it was not necessary to exceed in practice,
conformed to international law, which is only intended to protect men
who are fighting as soldiers. This is, after all, the tendency of all
the rules of war, which presuppose chivalrous combat. Something had
indeed to be done to turn the use of such wild methods into a hazardous
operation for the enemy. Nothing could be said against sabotage
detachments which fought in a soldierly way. The enemy had only to
desist from those methods which were in radical contradiction to
international law.
The following must also be stressed: The transmission of this order does
not prove responsibility for its contents. This is not like other cases
where Jodl advised or drew up the order. On the contrary, he refused to
draw it up. He merely distributed it, as instructed, through ordinary
official channels. However, he is guiltless, not because—or rather, not
only because—he was ordered to pass it on, but because he had no right
to interfere with the order which was to be passed on. It was outside
his jurisdiction, outside his rights, to examine it. His activity was
purely technical, independent of the contents of the document. In theory
he was not even obliged to read it. Let us assume that, after drawing up
the order, Hitler told some lieutenant to telephone it to the
commander-in-chief. Would it then have been the lieutenant’s right and
duty also to examine the contents of the document with regard to its
legal admissibility and to announce afterward: “I will not do this,” or
“I shall have to consult the Hague Convention on Land Warfare first to
see if I am allowed to do it”? The most grotesque consequences would
ensue. And in this case the general is nothing more than a messenger who
passes on what has been handed to him. Jodl’s answer to my question as
to what would have happened if he had refused to pass it on, is
characteristic of the military interpretation of the situation: “In that
case I would have been arrested immediately—and quite rightly so.”
(b) Antipartisan combat. With regard to the war against partisan bands
one might place charges against Jodl in only two cases . . .
GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Mr.
President, the defense counsel names “bands” a patriotic movement
comprising millions of patriots fighting against the German Fascist
invaders. I consider that such an expression used by the lawyer should
be considered as an insult to the partisans, who took a large part in
defeating the Hitlerite invaders, and I protest against it.
THE PRESIDENT: The objection seems to be based upon some question of a
Russian word which, of course, I don’t understand. I understand that
there is no objection to the English word “partisan.” I don’t know what
the German word is. But there doesn’t seem to be anything for the
Tribunal to do about it.
DR. EXNER: Mr. President, no one on our side doubts that hundreds of
thousands or millions of true patriots were among the so-called “bands.”
I am using the word because it was the expression used officially in
German orders. They mention “rules regarding bands”
(Bandenvorschriften). We do not use the word “bands” in any derogatory
sense. It is no discrimination when we speak of a “band,” or there need
be no discrimination in doing so.
THE PRESIDENT: Is there a different German word for the English “bandit”
and the English word “partisan”?
DR. EXNER: Yes. We, too, use the word “partisan.” For us that is a
foreign word, but we also use it. And then we speak of “bands,” but not
necessarily in a bad sense; and also of bandits, and these, of course,
are criminals.
THE PRESIDENT: Why don’t you confine yourself to the use of the word
“partisan”?
DR. EXNER: I can certainly just as well use the word “partisan,” Mr.
President. I have merely used “band” because we have the “rules
regarding bands.” That is the official expression which had been used,
but I have no objection to using the word “partisan.”
THE PRESIDENT: If you are quoting an order, you must quote the order in
the words of the order, no doubt.
DR. EXNER: Very well; then partisan warfare.
As far as partisan warfare is concerned, charges could be made against
Jodl only in two cases:
(1) If he had permitted this warfare to take place in a disorderly and
“chaotic” manner, as one witness has asserted, or (2) if he had issued
combat directions, and if these had been contrary to international law.
But neither of the two is the case; Jodl was not personally responsible
for this matter, but he was obliged to take an interest in the partisans
when their number reached proportions which were beginning to interfere
with the military operations. In 1942 he issued a directive regarding
bands which was replaced by a second one in 1944. Therefore it cannot be
said that no rules existed for this form of combat.
Nor can Jodl be reproached on the grounds of the second point. Although
Hitler wished to have a type of warfare waged against these dangerous
opponents which hardly took ethics and international law into account,
Jodl—without his knowledge—issued a pamphlet about the combating of
partisans which cannot be attacked legally. He went so far as to have
partisans in civilian clothing treated as prisoners of war and to permit
the burning down of villages to be carried out only on the orders of a
divisional commander; this was intended to, and successfully did,
prevent violations of Article 50 of the Hague Convention on Land Warfare
(I refer to Document RF-665, Document Book 2, Jodl-44).
Jodl cannot be reproached, however, if the combating of partisans
nevertheless degenerated badly. It is not a matter for the Chief of the
Armed Forces Operations Staff to supervise the observance of his
directions in four theaters of war.
(c) Burning down of houses in Norway (Document 754-PS). The Prosecution
have accused Jodl during cross-examination of having ordered the
destruction of Norwegian villages. This accusation refers to the
teletype of 28 October 1944 to the command of the 20th Mountain Army.
The Prosecution have a false idea of the role which Jodl had to play.
The military position then was as follows: The Germans were retreating
to the not yet completed Lyngen line, and there was danger that the Red
Army would continue to follow up during the winter and would destroy the
much weaker German units if, while advancing along Reich Road 50, the
only one that could be used at that time of the year, they found the
homes and the population with their local knowledge available. Without
these billets and the support from the population the Russian advance
was impossible. The evacuation of the population and the destruction of
the houses would eliminate the danger and, over and above this, it would
make partisan warfare against the German troops impossible. The
evacuation of the population was also necessary in the interests of the
population itself.
In this situation Hitler issued, not on the advice of the soldiers but
on that of the Reich commissioner for the occupied Norwegian
territories, the decree which Jodl reported, “by order,” to the command
of the 20th Mountain Army through the proper channels with all Hitler’s
military and ethical considerations. One can really hear Hitler’s
radical way of speaking.
Jodl who, as a result of a telephone conversation with the staff of
General Rendulic, knew that the mountain troops did not need such a
far-reaching military order and therefore did not want it, was against
this order and—when he could not prevent it—sought for a solution
which in practice led to the desired result. He wanted the order to be
carried out by the troops only insofar as was absolutely militarily
essential and in accordance with what was permissible under the Hague
Convention on Land Warfare (Article 23g). He knew that his brother, who
was in command in the North, thought exactly as he did; he knew the
soldierly spirit of the mountain troops as a whole, and he knew in
advance in this particular case that this order went too far for the
troops. So that it should be understood correctly by everyone right from
the start, he not only explained clearly that it was a “Führer order” in
the introduction to the teletype message—the second paragraph expressly
uses these words—but he let the soldiers know that the Führer had
issued this order on the suggestion of the Reich commissioner and not on
the suggestion of the military. Thus they were fully informed and they
acted accordingly. No militarily unjustified demolitions occurred. Thus,
among others, the three towns of Kirkenes, Hammerfest, and Alta were not
destroyed. According to the literal application of the order they would
have had to be destroyed.
(d) Deportation of the Jews from Denmark (Document UK-56): The
Prosecution wants to make Jodl responsible for the deportation of the
Jews from Denmark. It bases this accusation on a teletype message which
Jodl sent “by order” to the commander of the German troops in Denmark.
It is particularly difficult to understand this accusation by the
Prosecution; for the different documents submitted by the Prosecution
absolutely prove that the deportation of the Jews from Denmark was
decided upon by Hitler on a suggestion from Dr. Best, therefore on a
suggestion from the civil authorities and over the objections of the
commander of the German troops, and that this task was assigned to the
Reichsführer SS. The OKW was concerned with the whole affair only
because at that time a military state of emergency existed in Denmark,
so that the commander of the German troops, as the highest executive
authority in the country, had to be informed by his superior authority
of the action ordered by Hitler and assigned to Himmler, in order to
prevent friction between the German authorities in Denmark.
On 20 September 1943 Keitel and Jodl had received the first intimation
of the discussions between Hitler, the Foreign Office, and Himmler, in a
teletype message from the German commander. Jodl had only one wish—to
keep the Armed Forces out of this affair. His temperamental note on
General Von Hanneken’s teletype of 3 October 1943 (Document D-647) also
shows this. There he wrote: “...is a matter of complete indifference to
us,” namely, whether the Reichsführer SS published the figure of the
Jews arrested or not. It shows only too well that this has nothing at
all to do with moral considerations, either in a positive or a negative
sense.
The whole thing had nothing to do with the Armed Forces. But
difficulties could arise as a result of Himmler’s action, as the Armed
Forces were after all responsible for peace and order in Denmark. Such
difficulties had to be headed off. The Wehrmacht could not alter the
decision taken by Hitler in this police matter, and could not have
altered it even if it had been competent to deal with this question.
Jodl simply informed the commander by the teletype message (Document
UK-56) of the decision Hitler had taken in this police matter. And the
Reichsführer SS, the Foreign Office, and the Commander-in-Chief of the
Reserve Army were simultaneously informed by Jodl that he had let the
commander in Denmark know. Now it was a clear case and all friction
between German offices was excluded. That was all the OKW had to see to.
One cannot say that the information which Jodl gave made the execution
of the order, which Hitler had decided upon apart from the Wehrmacht,
any easier. It is clear to anyone who knows but a little of Hitler’s
position of power that friction between German offices would in no way
have prevented the thing being carried out, but would at most only have
delayed it, and would certainly not have made it pleasanter for the
persons affected.
May it please the Tribunal, there is an old saying in criminal law, a
saying which I always find cited in foreign decisions too, that _actus
non facit reum nisi mens sit rea_. Two things go to make a crime; the
_actus_, the objective side of the crime, the deed, and the _mens rea_,
the subjective side or guilt. The Prosecution is involved in an odd
contradiction there; in some cases they stress the _mens rea_ and fail
to see that the criminal _actus_ is lacking: I have shown this in the
case of the above-mentioned marginal comments, which do not represent
any illegal actions, but at most could allow one to infer an illegal
frame of mind. In other cases the Prosecution look only at the _actus_,
but does not ask whether a _mens rea_ is also present. This second
mistake is more dangerous, as here the outside of the crime is visible
to everyone and it is often only a delicate psychological examination
that can lead to the conclusion that there is no _mens rea_ which
corresponds to the _actus_. We will come to speak of this further on.
With regard to the action, what is meant is behavior declared criminal
by the Charter. This behavior can consist of positive action or of
omission. If a father sees his child drowning while bathing and does
nothing to save him although he could have done so, we declare him
guilty either of murder or of killing by negligence, according to the
degree of his guilt. This commission of a crime by omission is important
in this Trial too, for the Prosecution repeatedly stress that Jodl was
present at this or that meeting, at this or that speech. On one single
page of the Anglo-American trial brief the phrase “Jodl was present
at...” occurs six times. What does this mean legally? Being present at
and listening to things can be of great importance with regard to the
evaluation of a later deed, for the doer cannot excuse himself by saying
“I didn’t know” if he participated in the discussion of a plan. But mere
presence does not in itself make one an accomplice. According to British
law, even actual presence when a crime is committed makes one an
accomplice only if encouragement is added. The same applies in German
law. But where this is not involved, to lay stress on a person’s
presence when a criminal intention was discussed can only amount to a
reproach that “he knew about and tolerated it.”
Today we often hear this reproach of having tolerated crimes. Not only
in this court. The whole German people are reproached for having
tolerated a criminal regime and the annihilation of millions of Jews.
Undoubtedly a crime can also be committed by tolerating things. But to
make it a serious criminal charge, that is, one of intentional killing,
two prerequisites must be fulfilled: 1) The subjective side: The
perpetrator must have known that the victim would meet his death if he
did not intervene; 2) he must have been in duty bound and able to
prevent this death.
Mr. President, would this not be a convenient time to adjourn?
THE PRESIDENT: Yes.
[_The Tribunal recessed until 1400 hours._]
_Afternoon Session_
MARSHAL (Lieutenant Colonel James R. Gifford): May it please the
Tribunal, the Defendant Hess is absent.
DR. FRANZ EXNER: We are dealing with crimes which were through
toleration committed. As far as Jodl is concerned, the following
applies: What an officer or official is legally bound to do or to
prevent depends on the regulations governing his jurisdiction, and we
know how strictly Hitler insisted on their being adhered to, how sharply
he managed to demarcate the spheres of action of the political and
military leadership, the military and the SS. This indeed was the reason
why Jodl took every opportunity to oppose the plans for extending the
SS. For one thing was clear: Once something fell into the sphere of the
SS, the Armed Forces lost their right to have any say in it. It does not
therefore mean much, for instance, that Jodl was present at a discussion
between Hitler and Dr. Best, at which one of the things discussed was
terrorism in Denmark and the way to fight it (RF-90). The so-called
“counter-murders,” if such were really discussed, were not heard by
Jodl—he was not present throughout the session. His presence at this
session does not mean much, for the whole matter concerned occupied
territory and did not concern the Chief of the Armed Forces Operations
Staff, who was brought into this meeting because of other matters
discussed there. Thus, even if Jodl had heard more drastic things at
that time than he actually did, any interference would have been out of
the question and would have been rejected at once.
The reproach of having tolerated things also assumes that the
possibility existed of preventing the crime. In the case of Jodl we are
mostly concerned with Führer orders which it is said he should have
prevented. But enough has already been said here about how matters stood
with regard to influencing Hitler’s decisions. As long as his decision
had not yet been made, good arguments could, under favorable
circumstances, still impress him; but once his decision was made, it was
irrevocable. Any opinion to the contrary is simply based on ignorance of
the facts.
In the course of time Jodl did actually develop other methods for
influencing decisions of the Führer, or at least for influencing their
practical effects. He used dilatory tactics; either he waited until the
matter would perhaps be forgotten, or else he created difficulties and
raised objections, using a type of counterargument adapted to Hitler’s
way of thinking—the order regarding commissars is a case in point—or
he sent for opinions from various departments in order to gain time—as
in the case of low-flying airmen. If the order had to be published, he
often inserted in it on whose application the order had been issued, in
order to show the commanders-in-chief that he did not identify himself
with this matter—as in the case of the Norwegian villages. Or he tried
to influence the practical application by overlooking failure to carry
out the order—as in the case of the Commando Order, et cetera. But if
one thinks that he could simply have refused to draft an order which was
contrary to ethics, one has only to look at the Commando Order, where
this method had exactly the opposite effect to what was intended.
I now come to the second part of the Latin saying I quoted: The deed in
itself is no crime—_nisi sit mens rea_.
This is the last point in my statement and is at the same time the most
difficult and the most important in a modern criminal trial.
“No guilt, no punishment”; this principle has been accepted in all
civilized states since the Renaissance, even though different views as
to the nature of guilt may exist in some places.
May I first make a short comparison between the Anglo-American legal
view and that held on the Continent, for example in Germany. It is
important when judging some cases.
I have already had to touch on an important point of the question of
guilt when discussing aggressive wars. If one really seeks to make Jodl,
the General Staff officer, responsible for waging these wars, it is at
any rate of decisive importance to know how he viewed the whole state of
affairs. If he believed, on the basis of the reports he received, that
facts existed which—if they were true—justified the waging of war,
then Jodl cannot be reproached with having knowingly waged an unlawful
war. This applies even if his assumption was based on mistakes. Such
mistakes exclude design. In a decision, _Green v. Tolson_, it is stated:
“In common law a reasonable belief in the existence of
circumstances which, if true, would make the act for which a
prisoner is indicted an innocent act, has always been held to be
a good defense.”
In another decision _Regina v. Prince_ it is stated:
“It seems to me to follow that the maxim as to mens rea applies
whenever the facts which are present in the prisoner’s mind and
which he has reasonable ground to believe and does believe to be
the facts, would, if true, make his act no criminal offense at
all.”
In a third case, _Commonwealth v. Pressby_ (an American decision) a good
example is given:
A sentry shoots at his commanding officer who is approaching him, in the
belief that he is an enemy. This last example is closely related to the
wars of aggression which are to be judged here.
As a rule, ignorance of criminal law is no excuse under British law.
However, the following principle is worthy of note:
“If, however, there is a doubt as to a question of law, a person
cannot be convicted and subjected to imprisonment if he has
merely acted on a mistaken view as to the law.”
Naturally a mistake about preliminary questions in civil law can also
exclude criminal intention:
“If a person takes what he believes to be his own, it is
impossible to say that he is guilty of felony.”
This rule could also be significant in our field, too, for mistakes
regarding the regulations of international law.
Yet in this doctrine of mistakes I see a certain difference between it
and German law, for in German law any mistake, even if resulting from
negligence, excludes intention. In British law this seems to apply only
to “reasonable” mistakes “unaccompanied by negligence.” If that sentry
had shot too soon, without sufficient investigation, he would
indisputably under German law only have to be sentenced for killing by
negligence. In England and America, if I understand it correctly, this
mistake by negligence would not be taken into consideration at all, and
this soldier would have to expect a sentence for intention to kill. But
this difference in the conceptions of law should not play any part in
our case, for one can hardly reproach Jodl with having come to his
interpretation of the situation on the basis of a hurried and careless
examination of his reports.
There is one more point of divergence in the law.
[sm type begins]I read in an English decision that intention and deed
must coincide in order to constitute a crime, but we take a more precise
view of this coincidence. According to German law, a person can be
punished for intentional killing, only if he foresaw the fatal results
and wished them. On the other hand in the decision already quoted in
_Regina v. Prince_ it is stated: “If a man strikes with a dangerous
weapon, with intent to do grievous bodily harm, and kills, the result
makes the crime murder. The prisoner has run the risk.”[sm type ends]
[sm type begins]According to German law this man could be punished only
for aggravated bodily injury, never for intentional killing (Paragraph
226 of the German Penal Code). That the “result,” which may rest on
chance, should turn the act into murder—is rejected by us as unjust.[sm
type ends]
I will not read what follows, in order to save time, and I wish to omit
Paragraph 1, on Page 110.
Lastly, in a third point, which is of importance here, the views again
agree. Every serious crime must be intentional, although the intent need
not be linked with the consciousness of doing something criminal, but
with the consciousness that it is not right to act in such a manner.
“To constitute a criminal act there must, as a general rule, be
a criminal intent. The general doctrine is stated in Hale’s
_Pleas of the Crown_ that ‘where there is no will to commit an
offense, there can be no transgression.’”
In German law it has been argued, for a long time whether the
perpetrator must know that he is acting in direct contravention of the
law, or whether it is sufficient for him to know that he is doing
something contrary to his duty. The prevailing opinion, which has also
been taken over in the drafting of our German Penal Code, states: “The
perpetrator must be conscious of acting against the law, or of acting
wrongly in some other way, in a natural sense.” I was greatly interested
to find the same idea, expressed in almost the same words, in a British
decision _Green v. Tolson_:
“It must at least be the intention to do something wrong. That
intention may belong to one or another of two classes. It may be
to do a thing wrong in itself and apart from positive law, or it
may be to do a thing merely prohibited by statute or by common
law, or both elements of intention may coexist with respect to
the same deed.”
Thus, according to English law, knowledge that it is not allowed to act
thus is one of the elements of intent:
“There is a presumption that _mens rea_, an evil intention or a
knowledge of the wrongfulness of the act, is an essential
ingredient in every offense.”
This decision quotes some exceptions to this principle, which do not
interest us here. They concern bigamy and seduction, where positive
provisions of statute law are involved, as well as certain offenses
against public order, _et cetera_.
Our question now is: Was Jodl aware of wrongdoing when he prepared and
passed on the various plans and orders of which he is accused today?
According to my innermost conviction: No.
The only evidence which the Prosecution have produced is the reproach:
Why, if he had a clear conscience, was he in so many cases so intent on
observing strict secrecy? There is an answer to this: In military
questions there are manifold reasons for not allowing certain things to
become known. This was so before the war and all the more so during the
war, and even now after the war deep secrecy shrouds the atom bomb, to
cite an example. Such observance of secrecy need not be connected with a
guilty conscience. And if Jodl says he had arranged that one of the two
Commando Orders should—apart from other reasons—be kept secret because
of its obnoxious final regulation, he did so, presumably, for the sake
of the honor of the German Armed Forces, and certainly not because he
thought that he himself was doing something wrong by passing on the
order, an order which he had after all not drafted himself, and for
which he was convinced he was not responsible.
This last fact must be stressed. It is of general importance. In all
Jodl’s military preparatory work, whether he was making plans for wars,
or drafts of orders, or memoranda, the point is not merely whether he
knew that this war or that decree was contrary to law, but decisive is
whether he knew that by his co-operation, by his actions, he was doing
something wrong. That Jodl did not have a bad conscience seems to me to
be clearly shown by the fact that before his capture he had 3 weeks in
which to burn most of these documents but did not do so, because he was
convinced that he had nothing to conceal.
When drawing up these orders, he was not conscious of wrongdoing. He
could not be, if only for two reasons: On the one hand, because he felt
himself bound by the Führer’s orders, on the other hand, because—apart
from a concrete order—he was convinced that in his position as Chief of
the Armed Forces Operations Staff he was in duty bound to act in this
way. Let us look into this more closely:
I will not speak any further about the order and its legal meaning. One
point, however, appears to me to be in need of elucidation: Mr. Justice
Jackson quoted Paragraph 47 of the German Military Penal Code to prove
that according to German law an order by a superior officer does not
excuse the subordinate.
Incidentally, it is striking that in the case of the conspiracy
British-American law is brought in, whereas in the case of this order,
German law is drawn on—in each case according to whichever is the less
favorable to the defendant. I do not know, however, whether Mr. Jackson
would have referred to Paragraph 47 of the Military Penal Code, if he
had known how it was interpreted by the highest courts, and what the
real legal situation in Germany was.
It is first of all necessary to note that at the beginning of Paragraph
47 there stands the principle: “Should, by the execution of an order in
the course of duty, a criminal law be infringed, the superior officer
issuing the order is alone responsible.” And now comes the exception
which practice has cut down to the absolute minimum for the sake of
maintaining military discipline. It is based on the point of view that a
subordinate is subject to punishment as a participant only if the order
was not binding on him—for instance, because of its nature it did not
come within the framework of Armed Forces’ tasks—and if the subordinate
was aware that the action ordered had a crime or an offense as its aim.
The offense must thus be directly intended by the person issuing the
order, and the subordinate must be certain of this. That he could and
should have realized this is not sufficient. And, even if the
subordinate is responsible, in a case of slight guilt punishment may be
waived.
The whole ruling is very much contested, but one can see how the courts
have limited its application in order to shield the obedient soldier as
much as possible. Actually, cases of this kind were very rarely
punished. Jodl does not remember a single case in his 30 years of
service.
I must insert something here, because a few days ago Mr. Jackson made a
late presentation of a document which concerns this problem (3881-PS).
These are statements made by Dr. Freisler, as President of the People’s
Court, during the trial of those who took part in the attempt on
Hitler’s life on the 20th of July 1944. Freisler was always considered
in Germany as a caricature of a judge. His undignified shouting in that
murder trial was reproduced here before us by the Prosecution a few
months ago in a sound film. What this legal expert meant to say—as far
as the meaning of his remarks, torn from the general context, can be
understood—was: When an officer ordered a subordinate to give
assistance in murdering Hitler, this order did not justify the one who
obeyed.
Certainly, Freisler’s authority is not required to establish this. If
ever a military order was issued which was outside the competence of the
Armed Forces and was, therefore, not binding and did not exculpate, it
was the order to murder the head of these very Armed Forces. But how an
order by some officer to murder the head of the state can be compared
with the order of the head of the state to commit an act contrary to
international law is incomprehensible to me. However, I will not dwell
any longer on this.
It will not be possible to understand Jodl’s position or form a correct
judgment of his actions if we do not visualize clearly the two men who
here confronted each other. It is very easy for the Prosecution. Were
Hitler still alive, he, as the head of the major war criminals, would
sit in the first place on the defendants’ bench and would be considered
as the prime agent and source of all the terrible things that have
happened. Now that he is dead, his person is belittled when judging the
other defendants, and their conduct is treated almost as if he had never
existed at all. This despot, this infernal power, as Jodl called him,
cannot be passed over as a negligible quantity when the question is to
judge justly the commissions and omissions of his immediate entourage.
During these months I have again and again been reminded of the
combination of genius, madness, and crime which was once depicted by the
discerning Cesaro Lombroso. In history it is success that has the last
word on the worth and worthlessness of man. Therefore, history’s verdict
on Hitler will perhaps be a crushing one. But one must not forget his
beginnings; when one compares Germany’s position toward the end of 1932
with that at the end of 1938, one is not surprised at the incomparable
prestige which he had at the very time when Jodl came into close contact
with him.
Jodl now stood before this man. Jodl, an honest soldier, extraordinarily
gifted, but never striving to be anything but a conscientious soldier; a
sober realistic mind, ill-disposed toward all diplomacy, all political
machinations, brought up in the ideals of the German officer
corps—bravery, faithfulness, obedience—trained according to the
100-year-old tradition of the German General Staff, who knew only
fulfillment of duty, selfless work, and ever more and more work.
That this man, working at Adolf Hitler’s side, was bound to come under
his influence is self-evident. One must consider the time at which this
took place. There could of course be no relationship of mutual
confidence, but Jodl was also not the man to submit without opposition.
There were clashes and explosions enough. Jodl was regarded as the man
who dared to oppose the Führer more than anybody else. He could, as
Kesselring reported, stand up against him with a curtness which at times
reached the limits of what is militarily permissible. For this very
reason I do not believe that it is merely the receiving and obeying of
commands which can make us appreciate fully Jodl’s behavior during these
years. It was much more the wider conception of the fulfillment of duty:
Complete devotion to that which had been assigned to him as his task at
a critical time. One should realize and appreciate the situation in
which Jodl found himself.—His country’s struggle for existence, the
demands of a war which was becoming increasingly horrible, and at the
same time the views of his Supreme Commander which disregarded all
traditions about what was permissible and not permissible in a war. It
was quite clear that Jodl was bound to come into conflict—into conflict
with Hitler and into conflict with himself.
Permit me to make a comparison: You, Your Honors, as you have already
informed us, feel yourselves bound by the Charter of this Tribunal.
Perhaps some of you have been assailed by doubts as to whether all the
conditions of this Charter conform to international law as at present
understood and to the generally recognized principles of law. But you
have rejected such doubts, since you, as judges, consider yourselves
bound by the rules which your four governments have agreed upon.
Jodl, as a General Staff officer, may have felt himself bound in a
similar way to support the orders of his Supreme Commander, even if
doubts regarding their admissibility in international law may have
assailed him here and there. But he considered himself bound by his
office to draw up plans for war without examining whether and under what
conditions they were carried out; he had to formulate and issue
thousands of orders, even if he disagreed with some of them. Where
neither remonstrances nor delaying tactics had any effect, he had to
submit. As a General Staff officer he had a purely auxiliary function.
That he might be doing wrong while fulfilling this function according to
the best of his knowledge and conscience never even occurred to him.
It is said now: Jodl should under no circumstances have taken any part
in this or that affair. What should he have done? If one reproaches
somebody with having acted in a certain way, then one must be in a
position to state what action would have been right in that situation.
It is now said that he should have resigned. This, of course, would have
been an easy way out. That course could be taken in peacetime, but in
wartime it was quite different.
Jodl tried repeatedly to get out of the OKW and to be ordered to the
front, but in vain. Requests to be relieved of his post were altogether
futile unless the Führer desired it, as in the case of Von Brauchitsch
and Von Leeb. In wartime he strictly forbade his generals to apply for
release. That was desertion he said. The private in the front line could
not resign when he found things uncomfortable. The general, too, had to
remain at his post. In 1944 this order was repeated in writing; it was
still more peremptory and the reasons more potent. If a general wanted
to quit for reasons of conscience, he was told that the Führer himself
bore full and sole responsibility for his orders; all that the generals
had to do was to be responsible for their strict execution. Resignations
on such grounds were not soldier-like and would be criminal.
Therefore, Jodl could not resign. Should he perhaps have simulated
illness? This also is desertion and in wartime a crime punishable by
death. Is it possible seriously to expect an officer, brought up in the
good old traditions, to betray his country in time of need like a
coward—his country, to which he had devoted his whole life—which would
mean that he would not be able to look any new recruit in the face? I do
not believe so.
Thus, there was only a third way out: Murder and revolution. In
peacetime this would have meant civil war—in wartime, the immediate
collapse of the front and the end of the Reich. Should he then have
cried: _Fiat justitia, pereat patria_?
It really appears that the Prosecution holds the view that such conduct
could be demanded of the defendants. An astonishing idea! Whether murder
and treason can ever be justified ethically had better be left to
moralists and theologians. At all events, jurists cannot even discuss
such an idea.
To be obliged on pain of punishment to murder the head of the state? A
soldier should do that? And in wartime? Those who have committed such
crimes have always been punished, but to punish them for not doing so
would indeed be something new.
Naturally there are limits to legal obligations for jurists too; but in
a state of conflict which offers only this kind of solution, the old
saying applies: _Ultra posse nemo obligatur_.
Jodl was no rebel. His conscience told him: The fatherland is in need.
Every man to his post! Jodl’s place was at the head of the Armed Forces
Operations Staff. He did not enter this post of his own free will; he
did not keep it of his own free will. It was a hard duty. He fulfilled
the task which this post imposed on him according to the best of his
ability and conscience—up to the bitter end.
Your Honors. Allow me in conclusion to recall a personal reminiscence,
which throws more light on Jodl’s personality. I made his acquaintance
about 20 years ago in the house of his uncle, the philosopher Friedrich
Jodl, in Vienna. There I had a conversation with him on training for the
career of an officer. The young captain spoke with such moral
earnestness, and what he said was so far from anything that could be
called militarism, that I have always retained it in my memory. I then
lost all contact with him until last autumn, when I received the
surprising summons to defend him here. My first thought was: “This
gallant soldier must be helped.” But I doubted whether I should
undertake this, as I am not a professional attorney. But when I met him
in the courthouse for the first time, he said something to me which
swept away all my doubts: “Rest assured, Professor,” he said, “if I felt
a spark of guilt in me, I would not choose you as my defense counsel.”
Your Honors, I believe that these are the words of a gentleman, not of a
criminal. I ask that Generaloberst Alfred Jodl be acquitted.
THE PRESIDENT: I call on Dr. Steinbauer for the Defendant Seyss-Inquart.
DR. GUSTAV STEINBAUER (Counsel for the Defendant Seyss-Inquart): Mr.
President, members of the Tribunal:
Nuremberg, the old, venerable, imperial city, which has given not only
to the German nation but also to the world one of its most significant
painters, Albrecht Dürer, an unsurpassed sculptor, Veit Stoss, and the
Meistersinger Hans Sachs, has, in its ruined state become the stage for
the greatest criminal trial which legal history knows. Not only has
Nuremberg seen within its walls the pomp of the old emperors, but the
rallies of the NSDAP also took place there, year after year, as a part
of that propaganda machine which knew how to put into motion millions of
people by a gigantic, but also diabolical stage management, with flags
and standards, drums and fanfares under the slogan of equality of rights
for Germany in order finally in its extravagant aims, to lead a nation
which has given humanity so much that is good and beautiful to the verge
of ruin.
We have heard the Indictment here which tries to prove in a
comprehensive way that these men had conspired to conquer the peaceful
world by waging wars of aggression. It was said that the waging of these
wars not only violated the treaties which were supposed to prevent war
and, furthermore, the rules for a humane conduct of the war but had also
trodden under foot the basic rights of humanity in the most contemptible
way. We saw for months how mountains of documents and a long chain of
witnesses were supposed to confirm the Indictment and, on the other
hand, how the Defense as keeper and servant of the law was striving to
help the Tribunal discover the truth. But in the gallery the
representatives from all parts of the world were seated, and only too
often the whole world held its breath, when there was a break in the
dark fog banks which again and again gave us a glimpse into the depths
of unsuspected crimes. But outside, before the gates of the courthouse,
stands a deeply moved German people, whose former leaders the defendants
were. But regardless of how the trials will end, the Defense must be
given credit for one thing—namely, that with regard to the question of
the guilt of the German people, one will never again be able to talk
about complicity or collective guilt—perhaps rather about collective
disgrace, because they were German men under whose leadership crimes of
the most horrible kind were committed. The curtain now rises on the
final act of this world tragedy, to give a hearing once more to the
Defense and then to pronounce a sentence which must not only conform to
fundamental legal principles but also insure that crimes such as the
Prosecution describe will forever be prevented.
On 20 November 1945, at the beginning of the Trial, the presiding judge
stated that this Trial is of great importance for millions of people in
the whole world. For this reason, he said, everybody participating in
them has the solemn responsibility of fulfilling his duty without fear
and without favor to anybody, and according to the principles of law and
justice.
This duty was often an almost too heavy burden for the Defense Counsel,
not because of the extent of the material for the Trial, not because of
the abundance of new legal questions, but because things were revealed
here which are so monstrous and abysmally degrading that a normal brain
would reject even the possibility of their existence. In so saying I am
not thinking of the prepared human skin, of the pieces of soap made out
of human fat which were shown to us; I am not thinking of the systematic
way in which millions of innocent people were tormented, tortured,
beaten, shot, hanged, or gassed. No, I am thinking of the many touching
individual pictures which have made the deepest impression on me
personally and probably also on everyone else.
[sm type begins]Once more, I hear the report of the village priest Mogon
regarding the shooting of the hostages from Choisel Camp in
Châteaubriant:[sm type ends]
[sm type begins]“My father, we have not your religious
conviction, but we are united in the love for our native
country. We wish to die so that the French people will be
happier.”[sm type ends]
[sm type begins]I visualize the march of the Jews from Dubno which
slowly approaches the place of execution, how the individual victims
help each other to undress, how the little boy persuades his parents to
die bravely, and how they carry an old woman whose lameness prevents her
from taking the few steps to the pit where the deadly bullet from the
submachine gun awaits her. I once more hear the testimony of the French
journalist, Marie Claude Vaillant-Couturier, who describes in deeply
touching words how the sacred experiences of maternity and female honor
were shamelessly trampled under foot in the extermination camp.[sm type
ends]
Auschwitz alone has swallowed up 3½ million people—men, women, and
children. That is really the most terrible weapon of the Indictment,
that the spirits of all these innocent victims stand beside the
prosecutor, admonishing and demanding revenge. But I do not stand alone,
either. The many innocent war victims on the German side, women and
children who have fallen victim to the terror attacks which violated
international law, in Freiburg, in Cologne, in Dresden, in Hamburg,
Berlin, and Vienna, and in almost all other German cities, stand beside
me. My comrades from the Armed Forces, who, as honest and decent
soldiers, have sacrificed their lives for the fatherland by the hundred
thousand, young and old, faithful to their oath of allegiance, also
stand by my side.
But even if they did not exist, if the defendant stood quite alone
before his judges, then even more is it my sworn duty as a lawyer to
stand helpfully by his side and be his shield and defense, and, faced
with the mass of the most terrible, incriminating documents, to call to
you, Honorable Judges:
Do not judge in wrath, but as our Austrian poet Wildgans, who was a
judge himself, wrote in the album of a young judge: “Suche das Edelreis,
das unter Dornen blüht...” (Seek the precious shoot which grows among
the thorns).
Before I consider the Indictment in its individual points, I should like
to sketch in a few short words the personality of the defendant. The
words in Schiller’s tragedy “Wallenstein” apply to him, too: “Von der
Parteien Hass und Gunst verzerrt, schwankt sein Charakterbild in der
Geschichte” (Torn by the hatred and favoritism of parties, his character
wavers irresolutely in history).
The Prosecution in the trial brief call him a cunning, coldly
calculating, political opportunist who had a mission before his eyes. It
said it is notoriously known that he misused his position as minister in
order by his double-dealing to deliver Austria to the conspirators; he
has committed atrocities in Poland and in the Netherlands in cold blood,
and has trampled upon the rights of small nations to freedom of
religious and political thought, regardless of constitutional
obligations.
George S. Messersmith judges similarly in 1760-PS, when he says that
according to reliable information he received, Dr. Seyss-Inquart, with
whom he himself had little personal contact (the defendant denies ever
having met Messersmith), was completely insincere in his dealings with
his friend Chancellor Schuschnigg. Incidentally, the statement that
Schuschnigg and Seyss-Inquart were friends is incorrect. Messersmith had
left Vienna in the spring of 1937. As all witnesses testify, Dr.
Schuschnigg had at that time just become acquainted with Seyss-Inquart.
But Messersmith added in his own words that there is only one thing
which may be said in favor of Seyss-Inquart at that time: That he may
have believed the German protestations which were made to him that
Austrian independence would be respected.
[sm type begins]Mr. Gedye who was the Vienna correspondent of English
and American newspapers for many years has also mentioned Seyss-Inquart
in his book, _Austria’s Suicide_, and has said about him: “He is a well
brought up National Socialist, which is twice as disturbing, a young,
intelligent lawyer of nice appearance and good manners, who clearly
emphasized that he is opposed to the throwing of bombs and to noisy
demonstrations, and who preaches in drawing rooms regarding the
superiority of intellectual weapons over rough, material methods.”
Martin Fuchs, the author of the book quoted by me, _A Pact with Hitler_,
says concerning the defendant, “Seyss-Inquart was known to the public as
a National Socialist but also as a practicing Catholic and
representative of an Austrian Nazi movement which was to keep Austria on
the side of the Reich.” In Austria they now condemn the defendant
because he brought about the German entry by his telegram. Many a friend
of mine who has returned from Dachau and Mauthausen has, therefore,
reproached me for defending before the Tribunal the man who betrayed our
country. Dutchmen whom I questioned concerning the personality of the
defendant told me that the Dutch people hated him as Hitler’s supreme
representative in the country, especially since he had stated at the
beginning of the occupation that he came as friend of the Dutch, and
that he had deceived them in this respect.[sm type ends]
[sm type begins]I myself knew the defendant in Vienna only as a
professional colleague. He was generally considered as an able and
decent lawyer, and politically he was in close touch with Nationalist
circles, without being outstanding in any particular manner. But in the
many discussions which I have had with the defendant in the course of
the trials, I have tried to form an exact picture of his personality. We
often talked together about our families, our common experience at the
front, especially in the Tyrolese mountains, where he was a brave and
cautious company leader, and where he was wounded. He also liked to talk
about daring excursions into the mountains, but he liked best to talk
about music, and I have often thought that a man who could speak so
sensitively about Bach, Mozart, Beethoven, and Bruckner cannot be a
monster and above all not a cruel cold-blooded criminal, because love of
nature and music can find an abode only in the heart of a good
person.[sm type ends]
His political program was the Anschluss idea, and, considering his
origin, this is also easy to explain. His real home is the old mining
town of Iglau, a German-speaking island in a Slavic sea. At an early age
he became aware of the small-scale battle which was being waged by two
hostile nations. Deeply moved, he has heard that last year the storm of
the times swept over his home town too and that Iglau, which had been
German for 800 years, has ceased to be German. Therefore, in judging the
defendant, we should not forget that it is the Germanic borderlands that
have always experienced the greatest national distress and held more
strongly and fervently to the idea of the great German fatherland than
the nationals of the rest of the Reich, lulled into self-complacency
born of self-confidence. Thus, it is no accident that leading men in the
Anschluss movement, whose names stand out in my document book, came from
the Sudetenland. Doctor Otto Bauer, the late leader of the Socialists,
comes from Untertannowitz in Moravia—that is, from German Sudetenland.
The last time I saw the defendant was in the autumn of 1938, and I did
not meet him again until I saw him here in prison. Therefore, I also
asked one of his collaborators in Holland, who enjoys the respect of the
Dutch, and who was no National Socialist, and who as a senior judge can
be relied on, for an impartial opinion on the personality of Dr.
Seyss-Inquart. He writes:
“In his work, his clear, keen thinking and the systematic manner
in which he applied his many-sided talents in carrying out his
duties struck me at once as his outstanding qualities.
[sm type begins]“Unlike many of his equals he never dulled his
sense of reality by fanatically preconceived notions but, as is
fitting for a conscientious politician, always strove to
approach things soberly and without prejudice and to see them as
they really were. That also is why he developed the ability and
inner composure to listen calmly to other people, including his
subordinates, to deliberate with them and to yield to their
opinion... Social life in his house was on a dignified and
unusually high level. The atmosphere of the house revealed at
once that the host was a man of culture. He knew no hate, and
whenever he thought he saw hate approaching, he never answered
with hate or revenge, but only with measures deemed appropriate
for the prevailing situation.[sm type ends]
“It is the great tragedy of his life and work that in the person
of Hitler and several persons among those who were his closest
co-workers, elements crossed his path which were stronger than
he...
“As an intellectual, spiritually cultivated person he became
immediately suspect to the main forces in the Party bureaucracy
surrounding Hitler—Bormann and, in the SS administration,
Himmler—although he wore the Golden Party Badge of Honor and
occupied a high honorary rank in the SS. He continued to be the
young Party member who came from the ranks of the intellectuals,
who were always regarded with mistrust. For those elements he
was too ‘soft.’ He nevertheless hoped that he might succeed in
preventing independent sections in the Reich from working their
way into his sphere of action, as he himself was gradually
winning the Führer’s confidence. As I have already said, his
relation to the Führer was to be his fate.
[sm type begins]“The Führer’s amazing knowledge, his
never-yielding, all-conquering energy and his outstanding
successes in the field of domestic as well as foreign policy
during the first years after the so-called seizure of power,
drew Seyss-Inquart—as also happened to outstanding men in
foreign countries—under Hitler’s influence. He became a loyal
follower of Hitler and sincerely believed that in the latter
love for the German people was the prime motive of his actions.
He also believed—in any case for some time and during the
extreme distress of the German people—that he must continue to
cling to Hitler even though the recognition of his weaknesses
and faults dawned upon him...[sm type ends]
“However, I am firmly convinced that he, like so many of our
people, was more an unwitting victim than a willing tool of the
demoniacal power of Hitler...”
This is the opinion of an upright German judge.
The Prosecution base the Trial on the concept of conspiracy, in an
endeavor thus to forge a chain around the defendants to link them all
together in one common responsibility. My learned colleagues have
already spoken extensively of the concept of conspiracy and its
consequences in this Trial. To repeat these statements would be to carry
coals to Newcastle. But because this is the leading theme of the Trial,
and because it seeks to shift the responsibility for the world-shaking
events to my client in particular, I should like to submit to the Court,
a few additional ideas on this subject.
When turning over the pages of history we often come across stories
about men who combined to overthrow a ruler who was disliked, or a
system that was hated, and to seize power for themselves. All these
cases are lumped together under the general, all-embracing term “plots.”
In the book published in Paris, entitled _The Technique of the State
Plot_, Malaparte, an Italian, attempted to describe the technical
methods applied in plots and revolutions, from Catiline to Hitler and
Mussolini. Even this survey of technique will be sufficient to show how
unjustified it is to dub all these undertakings “plots,” if it is
intended to encompass within this term a definite concept such as is
known in penal law. In any case it is not possible to classify all these
things which in popular terminology are called “plots” under the heading
of “conspiracy,” as is done by the Prosecution. When Guy Fawkes and his
companions at the time of James I tried to blow up the English
Parliament in the so-called “Gunpowder Plot,” perhaps this was a real
conspiracy. To the present day the English people on the 5th of November
of every year celebrate with fireworks and bonfires and the burning of a
straw dummy the anniversary of the day which saw the fortunate
prevention of the plot. It would be a mistake, however, to term any kind
of co-operation for political aims a conspiracy, because—and it is
particularly important to repeat and stress this—the vagueness of
colloquial usage has always made it possible to use the word
“conspiracy” when talking of political struggle, and thereby justify,
because of the lack of adequate legal grounds, the destruction of
political opponents.
[sm type begins]Because in this Trial Holland is of particular interest
to me, I wish to cite two illustrations from her history. The one is to
recall Holland’s fight for liberty against Philip II, which two of our
greatest poets—Goethe in _Egmont_ and Schiller in his _Geschichte des
Abfalls der Vereinigten Niederlande_—chose as subjects for their
dramatic representations. Schiller writes about the heroic death of the
two brave Dutchmen, Egmont and Horn. The insulted ruler had pronounced
both counts guilty, because they had encouraged and assisted in the
outrageous conspiracy of the Prince of Orange and because they had
protected the confederate noblemen and had badly served the king and the
Church in their governorships and other offices. Both were to be
beheaded in public, their heads were to be mounted on spears and were
not to be removed until so ordered by the Duke. All their possessions,
feudal tenures and rights were confiscated by the Royal Treasury. The
verdict was signed by the Duke alone and his secretary Pranz, and nobody
took the trouble to obtain the consent of the rest of the criminal
counsellors...[sm type ends]
[sm type begins]Two decades later during the well-known period of 1588
to 1598, the young Dutch State had been given its final safeguard,
thanks to the joint leadership of the Republic by the Raadspensionaris
Johann van Oldenbarnevelt as statesman and through Maurits van Oranje
Nassau as Field Marshal. But the opposition between these two men was to
lead to a tragic result. Both, the highly respected, aged
Raadspensionaris Oldenbarnevelt, as well as his friend Hugo Grotius—the
father of international law—were imprisoned because of conspiracy.
While Grotius saved his life by escaping from his prison cell in a
bookcase, Oldenbarnevelt’s head fell because—so the verdict said—he
had deeply afflicted the Church of God. The unity of the State, however,
had been saved. Spain’s dominion over the seas passed to the small
Republic of Holland.[sm type ends]
For the French prosecutor I should like to cite from the history of his
country, France, an example of an obviously unjustified accusation of
conspiracy. Louis XVI was accused of conspiring against the nation and
was found guilty. Citizen De Sèze, on 26 December 1792, in the first
year of the Republic, conducted his defense at the bar of the National
Convention. His plea was probably one of the most moving ever delivered,
a discourse in which the defense counsel had to deal at the same time
with another danger of criminal jurisdiction arising from political
causes or political passions—namely, against a violation of the legal
principle _nullum crimen et nulla poena sine lege_. Undaunted and
unafraid, he declared: “Where there is no law which can serve as a
precept, and where there is no judge to pronounce the sentence, one
should not have recourse to the general will. The general will as such
cannot speak either about a man or about a fact. But if there is no law
according to which one can judge, then it is also not possible to give
judgment, and there can be no sentence.”
We still find today this principle _nullum crimen nulla poena sine lege_
firmly rooted in almost all law books. We find it in the German and in
the Austrian Penal Code; and we also find it in French law, in Article 4
of the code pénal, which states: “_Nulle contravention, nul délit, nul
crime, ne peuvent être punis de peines qui n’etaient pas prononcées par
la loi avant qu’ils fussent commis_.”
The American weekly _Time_ wrote with justice in its 22d Number, 26
November 1945, in an article: “Whatever laws the Allies attempt to
establish for the purpose of the Nuremberg Trial mostly did not yet
exist at the time when these acts were committed. Since the days of
Cicero, a punishment _ex post facto_ has been damned by the jurists.”
That this principle has not lost any of its significance even today
while this Trial is still going on, but on the contrary has kept its
full meaning, is shown by the fact, and I should like to remind the
French prosecutor again, that the French Constitution which was
submitted to the National Assembly on 19 April 1946, establishes
specifically as a statute of the Rights of Man in Article 10:
“The law has no retroactive force. No one can be convicted and
punished, except according to the law which has been promulgated
and made public before the deed which is to be punished. Every
person accused is considered under reservation as innocent until
he is declared guilty. No one can be punished twice for the same
deed.”
What is the Right of Man for the French, must necessarily be the Right
of Man for the German.
[sm type begins]This principle is not only rooted firmly in national
law, but also in international law. When after the first World War the
Allies demanded from the Netherlands the extradition of Emperor Wilhelm
II who had found sanctuary there, the Dutch Government refused the
surrender of the emperor with the following words:[sm type ends]
[sm type begins]“Article 227 of the Treaty of Versailles has
come into force on 10 January 1920, and it does not appear on
the list of punishable acts which are considered in Holland’s
laws or in the treaties which Holland concluded. This new crime
was also not contemplated by the penal legislation of the
countries which demand the extradition of the emperor.”[sm type
ends]
[sm type begins]A. Morignhac and E. Lemonon, _Droit des gens et la
guerre de 1914-18_, Volume II, Page 572 express themselves similarly:[sm
type ends]
[sm type begins]“_Nul ne peut être puni autrement qu’en vertu
d’une loi auparavant adoptée et publiée, pour cette raison, ce
qu’on exige de la Hollande c’est de collaborer à un procès
contraire à l’idée même de la justice._”[sm type ends]
When in the year 1935, the idea of analogy found its way into German
criminal law, this innovation met with severe criticism in juristic
circles also outside Germany. The second International Congress for
Comparative Jurisprudence held in The Hague in the year 1937 formulated
a resolution against analogy in criminal law. In this resolution, the
congress expressed itself in favor of the principle nulla poena sine
lege. (See: _Voeux et Résolutions du Deuxième Congrès International de
Droit Comparé, La Haye, 4-11 Août 1937_.)
From the afore-mentioned statements it follows that it is legally
inadmissible to apply principles in this Trial which lack a legal basis.
Continental law does not know the concept of conspiracy. Austrian law,
which could come into question as the national law for my client, does
not know this concept either. There are at best very small similarities
if we point out that the Explosives Law of 27 May 1885, Article 5,
already declares the concerting together for the execution of a crime
with explosives as punishable. Article 174, IC of the Penal Code makes
theft a major crime if the thief commits theft as a member of a gang
which has banded together for the common commission of robbery. German
law recognized the responsibility under the Penal Code for the act of
another only as accomplice, instigator, and helper. Conditions in French
law are similar, and to save time I refer to Articles 59, 60, 89, and
Article 265 of the _Code Pénal_.
That this fact is not clear and at least dubious is also admitted by the
reputed Russian teacher of international law, Professor A. N. Trainin in
his book, _La responsabilité pénale des Hitlériens_. He states on Page
13:
“The problems of international penal law have unfortunately been
studied very little. There is lacking a theoretical, clear
definition of the fundamental concept of ‘international crime,’
and a well-ordered system of this law still remains to be
created.”
According to the Prosecution, the aim or the means of the conspiracy are
crimes against peace, against the rules of war, and against humanity.
Professor Jahrreiss has already spoken extensively about the liability
for punishment of individuals for the violation of international peace,
and has described and given due recognition to the status of non-German
international jurisprudence. But since jurists of German tongue have
also concerned themselves with this question, I would like to make an
additional remark.
The well-known Austrian scholar of international law, Alfred von
Verdross, has established in his book _International Law_:
“According to prevailing opinion, subjects of a crime under
international law can only be states as well as other legal
communities immediately subject to international law, but not
individual persons...”
[sm type begins]There would be only an international obligation of an
individual person when international law itself would connect and order
a state of facts with a consequence of injustice that these standards
are applied immediately to the state of facts established by a person.
Only by that will persons, who according to valid law are only subject
to national civil and penal law, be bound as an exception by
international law itself.[sm type ends]
After these short supplementary statements of the legal bases of the
Trial I turn to the Indictment, which accuses my client of having
participated in the seizure and control in Austria as a conspirator, and
of having committed war crimes and crimes against humanity in Poland and
in the Netherlands.
Thus the first act takes place in Austria and the second in the
Netherlands, after a short interlude in Poland.
[sm type begins]East of Berchtesgaden lies Obersalzberg, at an altitude
of 1,000 meters, a mountain at the northern base of the Hohen Göll,
covered with meadows and forests, with scattered farm houses and with a
wonderful view. Above the old road is the impressive Berghof which
resulted from the reconstruction of the Wachenfeld House in 1936. It is
here, not on the Rhine, not in the Teutoburg Forest or on the shores of
the North Sea, that Adolf Hitler established his residence when he
desired relaxation far away from the Reich Chancellery.[sm type ends]
[sm type begins]Hidden by a small hill, the house of General Field
Marshal Göring lies behind the corner of the house.[sm type ends]
Adolf Hitler stands at the window of his country house, in deep thought,
and gazes on the snow-covered mountains. The country which is protected
by these mountains is Austria, his homeland. It is a German land, free
and independent, and not subject to his will as is the Reich, whose
absolute Führer he has become. When he wrote his lifework in the
fortress of Landsberg, he wrote on the first page of his book: “German
Austria must return to the great German fatherland.” The shades of night
rise slowly from the deep valleys and his thoughts glide over the
mountains to the old imperial city on the Danube, Vienna, which he both
loves and hates. It is the city of his joyless youth, a memory filled
with want and misery. In his book _Mein Kampf_, he compares this city
with Munich, and says about the latter: “Munich, a German city, how
different from Vienna, I feel sick when I think of this racial Babylon.”
And still, this city is the goal of his longing and he calls this same
city in the March days of 1938 a pearl to which he will give the setting
which its beauty deserves. On his table lies a book: _The History of the
Germans in Austria_. Hitler read this book again and again; it is the
history of his homeland, and we also will glance through it, as far as
time permits. We read:
Austria was throughout many centuries one of the strongest pillars of
German life. Its evolution, its rise, and its decline form a
considerable part of German history. Austria was and is a piece of the
German soul, of the German glory, and German suffering. Austria has
received inestimable strength from the old Reich, but she herself has
made a great and valuable contribution to the whole of German culture.
[sm type begins]Her historical beginnings go back to the Frank,
Charlemagne, who created the first “Ostmark,” for the protection of the
Reich against the East; she became a victim of the advance of the
Magyars. The victory of the German King Otto I at Lechfeld in 955 is the
hour of the rebirth of an Austria which now remains, under the rule of
the Frankish house of the Babenbergs, the rampart against the East for
almost three centuries. When the last of the Babenbergs fell in the
fight, Austria came to the Alemanian house of the Hapsburgs which was to
bear throughout centuries the imperial crown of the Holy Roman Empire of
the German Nation and was to be by its predominant position the
strongest shield of the Reich. The mystic strength of the Reich idea
gives to Emperor Frederick III the unshakable belief in the universal
future of the House of Austria: _Austria erit in orbe ultima_. Under
Maximilian Vienna becomes the main seat of humanism. Charles V goes on
beyond the nation and is filled with the world-power idea of the
medieval empire. The defense and liberation of Vienna in the year 1683
is a deed of the greatest significance. Under the ruling colors of the
German king, Catholics and Protestants, sons of all German peoples,
fight for the fate of the capital of Christianity. In the eighteenth
century, in the clash of the territorial states against the Reich,
princely dominions against the Reich concept, German dualism arises,
which from now on was to be the tragic fate of the Reich and
Austria—Austria and Prussia, Maria Theresa and Frederick the Great, the
great empress and the great king. Through the conflict between the two
powers the old Roman Empire of the German nation was destroyed in
1806.[sm type ends]
The Reich died, but the concept of the Reich lived on. At Leipzig, in
1813, Prussians and Austrians fought shoulder to shoulder under
Schwarzenberg, Scharnhorst, Gneisenau, and Blücher to free themselves
from the yoke of the Corsican tyrant. On 11 January 1849 the deputies of
all German states assembled at Frankfurt-am-Main for the constitutional
assembly. The Austrian delegate, Bergassessor Karl Wagner from Styria in
Austria, spoke at that time the memorable words:
“Leave an opening for us so that we can enter; we shall come,
unfortunately, perhaps not all of us. We, Austria’s Germans,
will come—how and when, who can tell? Who can read in the book
of the future? But we shall come!”
The year before, in St. Paul’s Church, where the delegates of all German
lands and states had met, the poet Ludwig Uhland, as a deputy, spoke the
memorable words:
“It may well be that Austria’s mission is to be a light for the
East; but she has a higher, a nearer mission—to be the artery
in the heart of Germany.”
But on the battlefields of Königgrätz in 1866, the thousand years’
mutual bond between Austria and Germany was broken and Austria was
forced to leave the German federation.
[sm type begins]How unsatisfactory the solution of the German question
by Bismarck’s forced exclusion of Austria from the union of German
states was, was also recognized in the Reich, where Paul de Lagarde
wrote in 1875:[sm type ends]
[sm type begins]“But despite this, 1866 and the German Reich is
an episode. Nikolsburg cannot separate what has been decided by
geography and history to be together, if this being together
will not be a union for a long time to come.”[sm type ends]
But before the double eagle of the Hapsburgs went down forever, Germans
and Austrians once again fought shoulder to shoulder in 1914-18, with
true Nibelung loyalty, for the freedom of the fatherland.
The common history of almost a thousand years, but above all the common
language and origins, the same customs and mode of life—all combine to
form the bond of unity between the two countries in the whole field of
culture, of creative poetry and scientific research.
[sm type begins]If here, the Austrian shows a special structure, then
this is above all the fact that especially in the field of the art of
poetry and music he has achieved performances which surpassed the
creation of other German peoples by far, or at least were equal to them.
As it can also be emphasized, that the living together for centuries
with other nations makes the Austrian stand out, to equalize
contradictions and to bridge inequalities. His joy in the sensuous, in
the colorful, and his sense for the superficialities of life may have
made him especially suitable for this. The narrow frame of the Trial
imposes justified limitations here on an extensive description of the
mutual cultural life. I limit myself to the quotation of names: The
singers of the Nibelungenlied; the Minnesänger, Walther von der
Vogelweide, Ulrich von Lichtenstein, and Oswald von Wolkenstein; the
humanists Aeneas Sylvius and Konrad Celtis; the orientalist
Hammer-Purgstall; the poet of the “Wehrmannslieder” Von Collin; the
classical dramatic Franz Grillparzer; the homeland poets Stelzhammer and
Rosegger; and finally Rainer Maria Rilke, Franz Werfel, Anton Wildgans,
and Hermann Bahr. When I turn to the magic world of music, then there is
an abundance of the most illustrious names: Mozart, Haydn, Schubert, the
waltz kings Lanner and Strauss, the symphonic composer Anton Bruckner,
all were Austrians.[sm type ends]
But is it not a symbol of spiritual unity that not only the North German
poet Hebbel, but also Beethoven and Brahms made art-loving Vienna the
permanent city of their work? There is no German music without Austria.
But Austria not only made her contribution to the cultural life of the
German people in the field of art, but also in the fields of science and
technology.
[sm type begins]But let us return to the Obersalzberg. If Hitler, the
demonic psychopath, loved his homeland with the love of a rejected
suitor then the love of Hermann Göring was of an entirely different
kind. He also liked to look over into nearby Austria. He spent his youth
there; it was not joyless and empty.[sm type ends]
[sm type begins]In the land of Salzburg with its old bishop city, its
lakes and mountains, Hermann Göring learned to know Austrian
characteristics, learned to love the people and country. What a joy it
was for the courageous huntsman and later aviator when he got the first
chamois on the crags in the cross-hairs of his telescopic sight. When he
was severely injured by a burst of machine-gun fire on 9 November 1923
in the Odeonsplatz in Munich, faithful friends accompanied by his wife
Karin, herself mortally ill, then took him from the pursuing bailiffs
over lonely wood trails into the free Tyrol mountains of Austria. A
large relief, on which already long before the Anschluss Austria was
marked on the map of Germany without borderlines, shone in the large
hall of Karinhall. But Hermann Göring was also Delegate of the Four Year
Plan and knew that Austria was not only beautiful and rich with honors,
but that she also owned the Erzberg where there was iron ore for the
forging of guns; he knew the rich forests of Austria where there was
wood for cellulose, for the construction of ships, and for rearmament;
it was not unknown to him that there was in Austria the largest bauxite
and magnesium sources of the world, and that Austria had the rich
petroleum wells at Zisterndorf. Only power makes right! If Germany wants
to have her say again in the world, then she must have a strong army and
a strong navy. And for this reason he loved Austria![sm type ends]
[sm type begins]Hermann Göring also never denied this, his conviction,
and he expressed this repeatedly to the diplomats of the great powers.
For instance, he stated openly to Lord Halifax, that it was an
integrated part of German policy, regardless what government was in
power, that the moment had to be created so that the unification of the
two brother nations of purely German origin and blood could take place.
He has also testified with human candor as witness before the Tribunal
that when the question of the Anschluss came into its acute stage, he
had grasped this ardently longed-for possibility for the total solution
and that he takes upon himself the responsibility for everything which
happened then, one hundred percent. He is therefore also to be believed
when he stated further that he would do everything therewith so that the
Anschluss would not lead to an endangering of the peace.[sm type ends]
THE PRESIDENT: I think it is possible for the Tribunal to become
acquainted with the history of Austria without having it read to them as
a part of your argument. Up to now there has been nothing in your 20
pages but history of Austria.
DR. STEINBAUER: Mr. President, I beg your pardon; I consider it
essential to portray the background in Austria which motivated my
client. I have now finished, and I shall pass on to the facts.
The massed common will of the big two of the Third Reich to take over
Austria at the opportune moment is the key to the solution of the
Anschluss question. For that, there is no need for a conspiracy; those
who participated were pawns on the chessboard of the two men, supers on
the great stage of the world.
But let us return to Austria.
[sm type begins]Only if we know the history of this country in the time
from 1918 to 1938, are we in a position to judge the role of the
defendant in this question justly.[sm type ends]
I have already pointed out in the presentation of evidence that in my
opinion there were three reasons for the Anschluss, and I have also
attempted to reinforce these by the documents submitted, to which I now
refer: 1. The economic distress; 2. The disunity resulting from this; 3.
The conduct of the great powers toward Austria, especially during the
critical days of March 1938.
Dr. Karl Renner, the Federal President of the Austrian Republic, who
enjoys the confidence of the four occupying powers, and on whom the
entire Austrian people look with respect because he took the helm of the
ship of state for the second time in a period of dire distress,
described the history of the Anschluss very aptly in his memorandum in
1945:
“The political reason why the Anschluss idea took hold of almost
all of Austria at the conclusion of the first World War lay in
the repeated proclamations of the victorious powers that the war
was waged for the right of self-determination of nations—
[sm type begins]“That every nation had a claim to her own
complete national state, and that the peace would fulfill this
requirement.[sm type ends]
“But it was not this political reason that was decisive for the
masses. Austria is a mountainous country with much too little
arable land, a country with an entirely one-sided economic
structure. Its capital alone sheltered a third of the
population; its industry was able to feed a large part of the
people only by working for Austria’s neighbors, receiving from
them raw materials and bread. The sudden separation of the
highly agrarian parts of the previously uniform tariff territory
of the Danube monarchy and the measures of the succession states
in 1918 introducing high protective tariffs deprived the country
simultaneously of its food sources and its export markets. The
fear of not being able to feed themselves and of not being able
to find work at home, the sudden construction of the labor
market, were the factors which in 1918 made the Anschluss appear
to almost everybody as the only possible solution. One cannot
talk about the national chauvinism of the Austrian working
class, because a large percentage of this class derived from
parents of non-German blood who had hardly lost their ties with
the homeland. The overwhelming competition of the Reich German
and Czechoslovakian industry loomed menacingly before the
workers of all professions in this small country, cut off from
the sea, and poor in raw materials, and afraid that it would not
be able to stand up against this competition. Not until we
understand the economic situation can we understand the
Anschluss movement, and why it was that Hitler’s boastful
announcement that he had done away with unemployment made such a
deep impression on the Austrian working class, and why the will
to resist the Anschluss was so weak within this working class at
the beginning.”
[sm type begins]I have in front of me an economic statistical comparison
from the year 1938. There are a few figures only, which speak
volumes:[sm type ends]
_Germany_ _Austria_
Population 68,150,000 6,710,000
Area (in square km.) 470,714 83,868
Change in population (1936) per
1,000 inhabitants plus 7.2 minus 0.1
Unemployed 1934 2,353,000 363,000
Unemployed 1937 573,000 319,000
[sm type begins]Austria’s Foreign Trade 1937; Export: To Germany, 179.8
millions; to Italy 172.6 millions; to Hungary 111.2 millions; to
Czechoslovakia 87.5 millions.[sm type ends]
By the decision of 5 September 1931 the Permanent International Court at
The Hague declared the contemplated customs union between Germany and
Austria incompatible with the Geneva Protocol of 4 October 1922 by 8
votes to 7. This was the last attempt of the governments to achieve a
closer mutual constitutional relationship with the express agreement of
the victorious powers. It failed. Was not the conviction bound to arise
in the minds of fanatical Anschluss partisans that this supreme national
aim could only be achieved through their own initiative?
A year later Austrian foreign trade showed a deficit of 613 million
schillings. On 15 July 1932 Dr. Dollfuss concluded a loan agreement in
Lausanne on the condition that the Anschluss question would be put off
for another 10 years. The ratification took place during the session of
the National Council on 30 August 1932 by 82 votes to 80. In the federal
council, the Social Democrat Koerner, at present mayor of Vienna, had
protested against this law, in view of a _rapprochement_ with Germany.
Hitler came to power the year after. The Social Democrats saw their
party dissolved in the Reich and the trade unions smashed; they saw the
Reichstag fire and the beginning of the persecution of the Jews, and
their leaders turned away from the Anschluss idea. The Catholic circles
who wanted to fortify the Catholic element in the Reich by means of the
Anschluss also turned away because the persecution of the Church in the
Reich had begun; and only the National Socialists, whose membership had
increased tenfold within a short time, were in favor of the Anschluss.
As Dr. Dollfuss had eliminated Parliament and thereby the way to power
by means of the ballot, the National Socialists under the leadership of
Landesinspekteur Theo Habicht strove with all means to gain power in the
state. We come to the bloody events of the year 1934. Dr. Dollfuss is
killed by the hands of assassins and his successor Dr. Schuschnigg
attempts to restore order in the seriously shaken state system. The
Socialists, however, remain sulkily aloof because of the events in
February 1934. There are changes in the political situation abroad too.
Whereas Italy in 1934 still stood at Austria’s side, and Mussolini had
deployed his divisions on the Brenner menacingly against the North, the
Ethiopian adventure had forced Italy to Hitler’s side. Austria is forced
to follow the changed course and in order to improve the economic
situation concluded the Agreement of 11 July 1936. In this agreement
Germany recognizes the independence of Austria and ceases the economic
war. The price for that, however, is a series of measures which give the
National Socialists in Austria a new boost. In order to extend the small
platform of his Government and bring about a real appeasement,
Chancellor Dr. Schuschnigg declares himself willing to invite also the
so-called Nationals to co-operate. Among these men is also the
defendant, who then became Austrian State Councillor in May 1937. As
already mentioned, the Anschluss idea constituted his political program.
He never tried to hide this fact. He also comes from the ranks of the
National Opposition, a factor which must not be overlooked. The
Anschluss also brought him nearer to National Socialism, and it seems
idle to engage in long investigations to find out at what time he
officially became a member of the Party. Among the documents confiscated
at his arrest was his membership card with the number above 7,000,000.
The witnesses Gauleiter Rainer and Uiberreither confirm the statements
concerning his Party membership. When, after taking office, the new
State Councillor paid his first visit to the Führer’s deputy, Hess, the
latter was very polite but cool and expressed his regret that
Seyss-Inquart was not an old fighter. The task of Dr. Seyss-Inquart was
to supervise the execution of the July Agreement and to act as a
mediator between the Austrian Government, the National circles, and the
Reich. It was a thorny and thankless task. The Austrian patriotic
circles (Vaterländische Kreise) could not forget the terror methods of
the National Socialists during the Dollfuss period. The National
Socialists, headed by Captain Leopold, were not satisfied with the
methods of the national representative Seyss-Inquart in his dealings
with the Government. Between these two men there were constant
differences of opinion, which went so far that Seyss-Inquart wanted to
give up the task entrusted to him—namely, bring about an agreement. To
save time I refer in this connection to Documents Seyss-Inquart-44
(letter from State Secretary Keppler to General Bodenschatz),
Seyss-Inquart-45 (Göring’s telegram to Keppler) and Seyss-Inquart-46
(USA-704) of my document book. There were continuous violations of the
July Agreement, and the Austrian Police found the plan for a revolution
known as Tavs Plan, which was an attempt to overthrow the Government by
violence. Minister Guido Zernatto has declared that the defendant kept
himself aloof from all these endeavors.
Then came the conference of 12 February 1938 at Obersalzberg. What
happened at this conference is well known. That the defendant discussed
things on the evening before this conference not only with Zernatto, the
representative and confidant of the Chancellor in the Government, but
also with the National leaders is understandable, for one must never
lose sight of the fact that the defendant had always openly declared his
role as mediator. He also had to know the claims of the opposition, so
that when the two statesmen met at Berchtesgaden the differences could
be cleared up. The defendant cannot be charged with playing a double
game within the framework of a conspiracy, because the National
Socialist Party tried to exploit the knowledge of the situation to their
profit, and by dispatching Mühlmann were quicker than the unsuspecting
Chancellor Schuschnigg. Here, too, we must have recourse to Zernatto,
who died in exile, and who declared that he was under the definite
impression that Seyss-Inquart did not know at the time about the
agreements concluded at the Obersalzberg. On the basis of this agreement
Seyss-Inquart was appointed Minister of the Interior and Security. He
went in that capacity to Berlin to pay an official visit to the Chief of
State of the German Reich and to present to him his political program
for the relations between the two states, as set down in the memoranda
for file (Exhibit Number 61) submitted to the Tribunal. The account of
this conference as given by the defendant in his testimony appears to be
quite authentic. For various reasons Hitler had at that time obviously
not yet decided to carry out the Anschluss. Let us here refer to what
the Defendant Göring says, when he testified as a witness on 14 March:
“I was not present at Berchtesgaden; moreover I was not in favor
of this agreement, because I was always against any half
measures which would prolong this state of suspension.”
In a sense the Berchtesgaden agreement gave the Nazis in Austria a free
hand to carry on their activities and propaganda. The 2,000 Party
members released from prison on the basis of the amnesty and at least
some of the members who had returned from the Reich became increasingly
active in the federal states and sought to bring about a rapid growth of
the Party. Hitler’s Reichstag speech of 20 February was used by them as
a signal for hostile demonstrations against the Government and thus to
bring them quickly to power. Not only Schuschnigg but also the great
mass of the working class realized how dangerous the situation had now
become. The threatening danger caused them to forget their differences,
and the negotiations between Schuschnigg and the Socialist labor leaders
and the Christian trade unions seemed to provide a guarantee for the
defeat of the imminent attack of Nazism by uniting all democratic forces
in a common defensive front. Prompt action was necessary, and
Schuschnigg proclaimed his plebiscite. The whole country awoke from its
lethargy. Workers and peasants were called upon to defend their country,
and under the leadership of Zernatto swift electoral preparations were
made in the factories and in the remote mountain valleys. It was clear
that this attempt of Chancellor Schuschnigg to veer round and alter his
course at the last moment could not fail to call forth the resistance of
the National Socialists in Austria as well as in Germany. Hitler raved,
and Mussolini’s words before the election warning Schuschnigg that the
bomb would explode in his own hand, unfortunately proved only too true.
And now let us come back to the defendant. He was not only a Government
member, he was the confidant of the National Opposition and guarantor
answerable to the Reich for Berchtesgaden. When the Prosecution charge
him with having given Schuschnigg his word of honor about the election
and having failed to keep it, that is not correct. Let us refer to the
speech made by Gauleiter Rainer on 11 March 1942 to the Berlin Party
members. On Page 12 of this Document, 4005-PS, it is disclosed that
Zernatto’s secretary was a secret member of the NSDAP and betrayed the
plebiscite plans to her comembers as soon as she came to know of them.
Rainer says he already knew the whole plan at 11:30 p. m. that same
evening.
THE PRESIDENT: The Tribunal will recess now.
[_A recess was taken._]
DR. STEINBAUER: The protest against the plebiscite made to the
Chancellor by Seyss-Inquart in the name of the Nationals was entirely
justified legally. Apart from the fact that there could be no guarantee
for a proper vote at such short notice, the vote itself was not
constitutionally legitimate. Article 65 of the Austrian Constitution of
1 May 1934 specifies exactly under what circumstances the nation can be
called upon to vote. Dr. Schuschnigg, therefore, bases his proclamation
of the election on Article 93 of the Constitution which article merely
says generally: “The Federal Chancellor determines policy.”
The Austrian Patriotic Front (Vaterländische Front), that is, the
political organization, had the task of carrying out the election. The
subsequent developments are well known, particularly the events of 11
March 1938. The main charge in respect to the conspiracy is, I take it,
that Seyss-Inquart caused the entry of the German troops by his telegram
about alleged unrest. We find this historical lie, which has given the
defendant the name of “Judas of Austria” in the story of the Anschluss.
We find this historical lie for instance, in Raphael Lemkin’s _Axis Rule
in Occupied Europe_ (Page 109). We find it again in the opening speech
of the American Chief Prosecutor, Mr. Justice Jackson, although it is
incontestably proved by the submission of Göring’s telephone
conversations (Document Number 2449-PS) in connection with Göring’s
testimony, that this telegram was never sent and, what is more, was
dictated and addressed to a third party at a time when the German troops
had already received the order to cross the frontier. Consequently,
these telephone conversations of Göring represent a historical document
of the greatest importance.
Rainer’s speech in Carinthia and his testimony as a witness before the
Tribunal also give the lie to the charge that Seyss-Inquart participated
in the seizure of power. According to this document (Document Number
4005-PS) it was Globocznik who wrongfully used the telephone in the
Federal Chancellery to give the alarm to the federal states. Appointed
Federal Chancellor by virtue of Schuschnigg’s withdrawal under duress,
the defendant discusses the constitution of the Cabinet, invites the
ministers to enter it, and takes the retiring head of the Government
home in his own car.
When it is further learned from the testimony of the witness Stuckart
and from Glaise-Horstenau under what circumstances the law of annexation
came into being, then it can indeed be said that Zernatto was right when
he wrote that Austria was conquered, in his opinion, even against the
wishes of Seyss-Inquart and his Government. I refer to Exhibit Number
63. Whoever, therefore, dispassionately surveys the whole set of events
of March 1938 relative to the Anschluss, and examines particularly the
part played by the defendant, can only come to the conclusion that one
cannot really speak of a carefully thought out “conspiracy,” of the
perpetration of a crime by co-ordinated stages. Where Austria is
concerned, however, the Englishman Geyde is right when he says the
curtain fell on the “Tragedy of Austria” when the troops marched in. It
was to rise again soon on a new play: “The Martyrdom of Austria.”
On 15 March 1938 Adolf Hitler came to Vienna. We have seen in this
courtroom the film record of his reception. Deeply moved, the defendant
addressed him as follows:
“What centuries of German history have striven for, what untold
millions of the best Germans have bled and died for, the final
goal in fierce combat, the only solace in hours of bitterness
has today been achieved. The Ostmark has come back to the
homeland. The Reich is restored, the empire of racial Germans is
established.”
With these words Seyss-Inquart defined his political aim, which was and
remained the guiding star of his actions.
With the Führer came Josef Goebbels, who turned on his gigantic
propaganda machine at high pressure. There was rally after rally.
Festivals were held. There was not a house in the land which was not
beflagged. The leader of the Socialist workers said: “I vote yes” and
the bishops exhorted the people to fulfill a national duty: “Render unto
God the things that are God’s and unto Caesar the things that are
Caesar’s.” Both were to be disappointed. For with Goebbels came Himmler
and his Gestapo and SS. Already during the night of 13 March there was a
wholesale arrest operation in Vienna. It included the members of the
former military associations, as well as prominent leaders of the
Socialist paramilitary organizations, Jews who were active in political
and public life, Communists and Monarchists, priests and Freemasons, and
even the leaders of the Boy Scouts and of the Austrian youth
organizations. In Vienna alone 76,000 arrests were made. Already on the
2d of April 1938 the first Dachau convoy left the West Station with 165
leading officials, including the present Federal Chancellor Figl,
Education Minister Hurdes, and Minister of Justice Dr. Gerö. The second
convoy followed on 21 May, the third at the end of May, and so it went
on. Punctually, every 8 days, convoys left for Dachau, Buchenwald, and
Sachsenhausen. On 10 May 1946, the People’s Court in Vienna sentenced to
death Anton Brunner, who had had 49,000 people, mostly Jews, sent to the
extermination camps in Theresienstadt, Auschwitz, Minsk, and Riga.
And what of the defendant? He was given the cold shoulder and pushed to
the wall. The victor of the Saar electoral contest, Josef Bürckel, was
set up as Reich Commissioner for the reunion of Austria with the Reich
and armed with dictatorial powers. The powers of the defendant scarcely
exceeded those of an Oberpräsident in the Reich, that is, those of a
second level administrative authority. Still less, because immediately
above him was Bürckel who under the pretext of the annexation interfered
with everything and laid claim to everything, particularly in matters
concerning the churches and the Jews. This is evidenced by Documents 67,
70, and 91. The defendant opposed Bürckel’s methods. He even raised
objections to Hitler himself against Bürckel’s action in Graz on 8 April
1938.
This we know from the testimony of Neubacher, Schirach, and Stricker,
and from the documents submitted by the Defense. But Bürckel, whom
Churchill described as the Governor of Vienna in his book _Step by
Step_, remained the stronger man and the importunate admonisher,
Seyss-Inquart, was transferred to southern Poland as a provincial
commissioner. This treatment alone at the hand of his alleged fellow
conspirators shows only too clearly that Seyss-Inquart was actuated by
his enthusiasm for the Anschluss and cannot have been a conspirator. He
was not a leader, he was led or, what in my opinion is more accurate, he
was misled, perhaps also a docile tool in the hands of the big two,
Hitler and Göring. But it was solely for his political ideals, the
Anschluss, without any intention of a war of aggression.
Of course, there was something of an economic boom in Austria after the
Anschluss. It was partly a fictitious boom due to rearmament. But what
took place was not the Anschluss that the Anschluss enthusiasts in
Austria had visualized, especially when the war provided a motive and a
pretext for ruthlessly controlling and repressing every dissenting or
critical opinion.
Austria never ceased hoping for her liberation and fighting for it.
There was much suffering and many died; 6,000 were executed in Austria.
In the Landesgericht of Vienna alone 1,200 men died by the guillotine,
800 of them merely because of their anti-Nazi conviction. In the last
days of the war Vienna’s most beautiful buildings came down in ruins,
and St. Stephan’s Cathedral, one of the noblest monuments of German
Gothic, went up in flames. Thus was fulfilled the promise that Hitler
had made on 15 March 1938: “The pearl has the setting which its beauty
deserves.”
Not the idea of the Anschluss, that is to say, the wish to bring about
the national unification of a people, was a crime; it was the
introduction of a system that has probably prevented it from ever coming
true; that was criminal. The defendant certainly did not wish that.
To conclude my statements on the Austrian question I shall now proceed
briefly to examine the legal aspect of the charge against my client. To
elucidate his legal responsibility, I will review his behavior in the
following short survey:
First his political activity:
1) After the Agreement of 11 July 1936, the Federal Chancellor, Dr.
Schuschnigg, took the Defendant Seyss-Inquart to work with him as a
representative of the National Opposition, therefore, not as a political
follower of his, as for instance the witness Guido Schmidt.
2) Seyss-Inquart always declared—for the first time to Dr. Dollfuss in
July 1934—that the National Opposition consisted only of National
Socialists who obey only Hitler’s will, who, in any case, would never
act against Hitler’s will.
3) Seyss-Inquart declared he was a National Socialist; thus he always
stood for the interests of the Austrian National Socialists. This is not
only confirmed by the witness Skubl but borne out by the authorities
previously quoted by me.
4) To avoid any military or international conflict, Seyss-Inquart
pursued the following aim: To allow the Austrian National Socialists to
participate independently of the Reich National Socialist Party, should
Austria and Germany form a close union.
5) Seyss-Inquart declared that this aim could only be attained if Hitler
agreed to it and directed the Austrian National Socialists expressly
toward this policy. This he wanted to attain.
6) The culminating point of Seyss-Inquart’s efforts was his interview
with Hitler on 7 February 1938; although he was so to speak, minister by
the grace of Hitler, he stood for his Austrian program.
Herein lies Seyss-Inquart’s mistake. He thought Hitler and Berlin would
pursue a joint policy, that is, as Bismarck said, use the “art of the
possible.” Berlin, however, did not wish to pursue a joint policy. In
the face of this fact Seyss-Inquart’s policy broke down on 11 March. Is
this mistake punishable, especially as the Austrian State leaders
desired to reach an agreement along the same lines, and Dr. Schuschnigg,
knowing his program, allowed him to continue his activity? In view of
the defendant’s basic attitude until March 1938, details of his
political tactical attitude are of secondary importance.
And now the activity of the defendant as Minister of the Interior and
Security.
7) There is no trace of any National Socialist influence on the Austrian
executive. The witness Skubl has confirmed this with exceptional
clarity. Seyss-Inquart forbade the Police to take up any political
attitude (Document 51); he forbade National Socialist demonstrations
(Document 59); he avoided such occasions (Document 59); he demanded that
the Austrian Nazis stand for legality (Document 52).
8) On 11 March 1938 Seyss-Inquart fulfilled his duties as mediator, in
accordance with the Berchtesgaden agreement. Together with
Glaise-Horstenau he gave Dr. Schuschnigg, in the forenoon of 11 March, a
perfectly candid statement of the facts. He particularly pointed out the
threatening National Socialist demonstrations and the possibility of a
German invasion. In the afternoon he delivered Göring’s demands to
Schuschnigg and the latter’s answers to Göring.
9) After Dr. Schuschnigg’s offer to resign, Seyss-Inquart retired. He
did nothing to comply with Göring’s demand to obtain the transfer of the
Federal Chancellorship or to seize power. The ultimatums, with the
threats of invasion by the Reich, were, as is known, transmitted by
Embassy Counsellor Von Stein and General Von Muff, to whose pressure
President Miklas finally yielded. This appears from President Miklas’
statements (Document Number 3697-PS) and the statements of the witnesses
Rainer and Schmidt.
10) Only after Dr. Schuschnigg’s farewell speech did Seyss-Inquart
publicly demand the maintenance of order. He did not designate himself
as a provisional government but, in good faith, as Minister of the
Interior and of Security, as was confirmed by the witness Schmidt. He
took the order not to put up any resistance to the German troops from
Dr. Schuschnigg’s farewell speech.
11) Seyss-Inquart tried as long as possible to preserve Austria’s
independence, as instanced by his telephone conversations with Göring
(Document 58), also by his request to Guido Schmidt to join his Ministry
as Foreign Minister, as confirmed by the witness Schmidt, and according
to the statements of witness Skubl; by refusing the demanded telegram
(Document 58); by the request to Hitler not to march in, as confirmed by
Göring; by the request to Hitler also to let Austrian troops march into
the Reich.
12) On 13 March 1938 the Anschluss Law was issued in conformity with
Article III of the Austrian Constitution of 1 May 1934. The
psychological situation for Seyss-Inquart was the same as for all
Austrians, who on 10 April had by secret ballot voted for the Anschluss
by 4,381,070 votes to some 15,000.
Some of the accusations made against Seyss-Inquart are:
1) That he used his various positions and his personal influence to
promote the seizure, incorporation, and control of Austria by the Nazi
conspirators.
2) That, as an integral part of his evil intentions in the sense of the
Indictment, he participated in the political planning and preparations
of the Nazi conspirators for wars of aggression and wars in violation of
international treaties, agreements, and assurances.
Concerning the first accusation, I refer to the above survey and limit
myself to the following short statements: As a political aim, the
annexation of Austria to the German Reich is nowhere indicted, and the
defendant pursued no other aim. Here—as also on other points—the
Prosecution go beyond the limits of the Charter.
Concerning the second accusation—that Codefendant Seyss-Inquart had
participated in a conspiracy against peace must be judged by Article 6
(a), Part II (a) of the Charter. There it is stated, among other things,
that collective planning, preparation, or execution of a war of
aggression or a war in violation of international treaties, is
punishable as a breach of the peace.
I leave it to the Tribunal to examine if this ruling can really be
applied to the case of the entry into Austria in spite of the fact that
there was no war. It is a significant point that, according to the
meaning of the said ruling, the outbreak of a war is the condition for
rendering an act punishable for breach of the peace within the meaning
of the said provision.
In any case I cannot reconcile myself to an interpretation of this
ruling which goes so far as to consider even an abandoned plan for war,
or the possible planning for a war which turns out to be bloodless as
punishable as the accomplished crime.
It must be pointed out most emphatically that no proof has been
furnished that my client ever imagined that events would even lead to a
war between Austria and any other power because of the Anschluss or
pursuant to it. On the contrary, his decision to take an active part in
politics after the drama of 25 July 1934 was dictated by the resolve not
to let the Anschluss question become the cause of military or
international complications. Furthermore, it must have been far from his
mind to imagine that Hitler or his entourage had seriously considered
the possibility of such a consequence. The outcome of the Austrian
enterprise proved him to be right. The German troops were greeted on
their march into Austria with flowers and cheers.
As for the great powers, France and England protested on 12 March 1938
against the Anschluss. But this was only a very mild and ineffectual
protest. Military support for Schuschnigg was not forthcoming; above
all, the League of Nations, the guarantor of Austria’s independence, was
not appealed to.
On 14 March 1938 the British Government declared in the House of Commons
that they had discussed the new situation with their friends of the
Geneva Entente and that the unanimous opinion had been that a debate in
Geneva would lead to no satisfactory result.
When the League of Nations was informed of the Anschluss by the German
Foreign Office it took note of it without protest, and the Austrian
representative at the League of Nations, Pflügl, was given his papers.
The Hague Court of Arbitration struck its Austrian member, Professor
Verdross of Vienna, from the register of judges. The diplomatic agencies
were withdrawn or transformed into consulates in the German Reich.
Only a very short time elapsed, in fact it was only a few months after
the occupation and annexation of this small country that a treaty
concerning another small state was concluded in Munich on 29 September
1938 with the alleged aggressor.
The French Prosecutor, M. de Menthon, in his opening speech mentioned
that great politician and statesman Politis. I also would like to call
him to mind. Shortly before his untimely death he wrote in his book, _La
Morale Internationale_: “_Qui menace les petites nations menace
l’humanité toute entière._” The League of Nations powers did not feel
called upon to pay any heed to this sentence.
But there is another principle of international order which they did not
see fit to apply when confronted with the Austrian Anschluss. I mean
that principle which, under the name of the Stimson Doctrine, has found
entry into the science of international law and diplomatic language.
[sm type begins]It is the principle according to which the nations of
the world refuse to recognize territorial acquisitions obtained by
force. This principle has at least penetrated into the legal
consciousness of present times as deeply as the prohibition of wars of
aggression, which is one of the main pillars upon which the Nuremberg
Trial rests.[sm type ends]
[sm type begins]As evidence of this fact I will recall here the
proposition of the Brazilian Delegate Braga to the second session of the
League of Nations, in which he proposed a _blocus juridique universal_
(universal juridic blockade) against aggressor states and at the same
time submitted as one of the measures to be adopted, the denial of the
right of annexation by aggressor nations. You will find this explanation
printed in the document book submitted by Professor Jahrreiss to the
Court as complement to his legal arguments, and which is reproduced
there as Document Number 10 on Page 35.[sm type ends]
[sm type begins]I will further recall the so-called Saavedra-Lamas Pact
signed by several South American states on 10 October 1933 in Rio de
Janeiro and which the Little Entente and Italy also joined. Here the
signatory states bound themselves not to recognize the validity of a
forcible occupation or annexation of national territories. The Seventh
Pan-American Conference accepted this principle on 26 December 1933 with
the participation of the United States of America. It agrees as to
contents with a proposition already submitted previously by the Peruvian
Delegate Cornejo on 14 January 1930 to the Council of the League of
Nations.[sm type ends]
[sm type begins]It is above all contained in the famous notes of the
American Secretary of State Stimson to China and Japan of 27 January
1932, which contains the following sentence: “The American Government
does not intend to recognize any situation, treaty or agreement brought
about by means that are contrary to the statutes and obligations of
August 27, 1928 in Paris.”[sm type ends]
And finally I remind the Tribunal of the declarations of the Council of
the League of Nations on 16 February 1932, in which the Stimson
Doctrine, raised to a principle, was expressed as follows:
“No encroachment on the territorial integrity and no
infringement of the political independence of a member of the
League of Nations in violation of Article 10 of the Covenant of
the League of Nations could be recognized as legally valid by
the member nations.”
Nevertheless all the nations of the world recognized the incorporation
of Austria into the German Reich without feeling compelled to concern
themselves with the Stimson Doctrine.
This likewise substantially answers the accusation of the crime against
peace by violation of treaties. Germany is supposed to have violated
three treaties. First the German-Austrian Agreement of 11 July 1936;
second, Article 88 of the Treaty of St. Germain; lastly, Article 80 of
the Treaty of Versailles. Here also, it must be pointed out that all the
nations concerned have not only tolerated the violations of the treaties
but, moreover, tacitly sanctioned them by their attitude. This implies
at least a renunciation of international law, and the powers concerned
have thereby forfeited the right to take any action because of treaty
violations, as this would be contrary to all sense of fairness.
With particular regard to Article 88 of the Treaty of St. Germain, the
German Government, and therefore Seyss-Inquart as alleged coconspirator,
cannot be charged with violation of this provision because Germany was
not bound by this treaty, which she had not signed, and which for her
represented a _res inter alia acta_.
On the other hand, the German-Austrian Treaty of 11 July 1936 was a _res
inter alia acta_ for powers other than Germany and Austria; here Austria
alone could have raised the objection of a breach of treaty. In this
connection attention is called to the fact that the reconstituted
Austria is not among the signatories of the London Agreement of 8 August
1945. Therefore the four states of the International Military Tribunal
are not entitled to vindicate the interests of Austria at this Trial.
With regard to Article 80 of the Treaty of Versailles, I resist the
temptations to discuss the question of the legal validity of this
provision; I will dwell on the legal significance of the contradiction
of this article with the so-called Fourteen Points of President Wilson.
But in concluding my legal exposition of the Austrian affair, I cannot
altogether refrain from expressing a general idea: One of the great
principles of international order which in the course of the nineteenth
and twentieth centuries has established itself after much suffering,
much confusion, and many makeshifts and become more and more a reality
is the right of self-determination of nations.
This basic principle of the right of self-determination of the nations
has become so firmly rooted in the legal conceptions of international
relations in our century that one is forced to the idea that it belongs
to the general principles of international law, an idea that
particularly appeals to the democratic way of thinking. But as a general
principle of international law it would, together with the Charter, the
prescriptive international law and, thirdly, the law of treaty, then
become the standard criterion of judgment for the Nuremberg
International Military Tribunal, which at all events must find a similar
basis for other questions. And further it would acquire, like all other
generally accepted principles of law, a constraining force and above all
have precedence over international treaty law.
A number of states owe their existence to this lofty expression of the
democratic way of thinking. Such a privilege was denied the Austrians
after the first World War. Despite the fact that the people in Austria
as well as in Germany unanimously strove for union, Austria was forced
to eke out an existence as an artificial, unnatural state structure,
neither able to live nor die. How bitter are the words of the Encyclical
_Ubi areano_ of 23 December 1932:
“We hoped for peace, but it did not bring salvation; we hoped
for healing, but terror came; we hoped for the hour of recovery,
but only confusion came; we hoped for light, but only darkness
came.”
In the year 1938, too, Austria and Germany strove for union, according
to the wish of the overwhelming majority of their citizens, and this
time their wish was fulfilled.
From the point of view of world history, the incorporation of Austria
has no other significance than the triumph of a mighty and living
principle of international order—the right of self-determination of
nations. This dynamic force carried away artificial and unnatural treaty
stipulations. Who can speak here of guilt?
I have nothing to say on the question of Czechoslovakia, and on the
question of Poland very little, for during his short stay he was not in
evidence at all of the Poles but was mainly concerned with the
organization problems connected with the building up of the German
administrative apparatus. In this matter it is sufficient for me to
refer to the outcome of the evidence.
Nor will I say anything more about his honorary rank in the SS except
that an honorary rank was never under Himmler’s command and disciplinary
power, nor did such rank carry with it this power in the SS.
As regards his position as a minister without portfolio, the importance
of this function within the scope of the organizations will be discussed
in the chapter “Reich Cabinet.” Therefore, passing now from this
interlude, I hasten on to the second scene of this case: the
Netherlands.
Many know her only as the country of windmills, wooden shoes, and wide
breeches; the red brick buildings, large herds of cattle in green
meadows, and vast multicolored tulip fields. I know her as the country
that gave to mankind a Rembrandt, and the many masters of the Dutch
school, and Grotius, the great teacher of international law; the country
that fought for her liberty in bloody battles against Philip II of Spain
and produced the great naval hero De Ruyter, who won one of the most
famous naval battles in history on 21 August 1673. But during this Trial
we learned here that of all the occupied countries, the Netherlands
offered the most united and stiffest political as well as increasingly
effective physical resistance; we also learned that throughout these
years these people never abandoned the hope that the day of liberation
would surely come. The motto of the province of Zeeland: ‘_Luctor et
emergo_—I struggle but emerge’—had become the rallying cry of the
whole country.
Seyss-Inquart came to this country in May 1940 as chief of the civil
administration. Whatever he may have thought and planned, it is his
tragedy that he came as the representative of Adolf Hitler and of a
system hated the world over. Hundreds of laws, orders, and decrees bore
his signature, and no matter how correct they may have been legally, in
the eyes of the people they still were measures of the enemy, and
Seyss-Inquart still their oppressor. My client did not put himself
forward for this office. On the contrary, he asked permission to go to
the front as a soldier. Adolf Hitler refused this. Seyss-Inquart has
also never contested his responsibility, and gave himself up voluntarily
after the collapse. In case the legal opinion of the defense concerning
the command of a superior is not shared by the Tribunal, the total
organization of the Reich on the one hand, and the attitude of the Dutch
people on the other, must, if only by virtue of Article 8 of the
Charter, be taken into consideration in passing judgment on his
administrative activity. The way in which Seyss-Inquart discharged his
two conflicting tasks—namely to represent the interests of the Reich
and at the same time to provide for the welfare of the population within
the meaning of the Hague Land Warfare Regulations—is revealed by his
attitude which I now describe: In the administration of Holland my
client clearly allowed himself to be guided by the following legal
conceptions:
The development of war technique, particularly in air warfare, the
enormous extension of economic warfare, the expansion of the war into
“total and indivisible war,” the beginning of the idea of total
blockade, have all made international law—as it was in force in the
years 1899 and 1907 when the Hague Convention was
established—meaningless from the viewpoint of the _clausula rebus sic
statibus_, and absolutely incomplete and useless because of new
requirements and prevailing conditions. Only a few vestiges from the old
days were still valid in the second World War.
How drastic this change is, is most strikingly shown by the bombing of
residential quarters, made possible by the colossal development of
explosives and flying technique, and which had no justification whatever
according to previous law. If indeed there is any justification at all,
then this can only be found in the concept of total war. But, above all,
this development brought the individual into war—due not least to the
influence of the Anglo-American concept of war.
Accordingly, in the course of this development the enemy civilian
population, as well as the resources of the occupied regions, have
become a war potential of the occupying power up to the limits imposed
by humanity.
A further limit is imposed by international law, which provides that the
demands of these forces must be justified by military necessity, and
lastly that these demands must be reasonable _ex aequo et bono_.
Moreover, the totalitarian and indivisible nature of modern warfare
precludes the special treatment of specific areas. It is no longer a
question of requisitioning the human and economic forces of a definite
area only for the requirements of that area, as it is still prescribed
by the Hague Convention for Land Warfare. Henceforth the belligerent in
power must have at his disposal the sum total of these forces, which on
the other hand benefit from belonging to the whole.
Modern technical development, especially in the field of communications
and traffic, also raise another problem of warfare, the so-called
partisans, involving new and heavy tasks. In contrast to the period of
the first World War, the partisan organization assumed enormous
proportions in the second World War, and endangered the fighting troops,
which at most can be compared with the guerrilla war of attrition
against Napoleon I in Spain. The old international law made no adequate
rules to offset this danger. It is evident that the guiding principle
for fighting the partisans must be the security of the fighting troops
at any price.
This means that the army as well as the occupation administration have
both the right and the duty to take the severest repressive and
preventive measures without going beyond the bounds of reason and
humanity. My client performed the functions of his office in accordance
with these guiding principles, always in the firm belief that he was
carrying out his duty according to the directives of international
law—that is, of the supreme Reich leadership. Any thought of acting
illegally or even of committing punishable acts never entered his mind.
That has nothing to do with the applicability in this case of the
principle that ignorance of the law is no excuse, for here not national
penal law is concerned, but international law and moreover it is not a
question of a legal error, but of a subjective conception of duty, which
may have erred here and there but was always sincere.
Having discussed the principles, let us now turn to the individual
administrative acts of the defendant. Here it must be pointed out that,
as everywhere in occupied territories but particularly in Germany
proper, the National Socialist administration tended more and more to
become overorganized, and responsibilities often overlapped. At the same
time there was an extremely rigid centralization in Berlin. Consequently
the following authorities were in control in the Netherlands: 1) The
Reich Commissariat (civil administration and protection of Reich
interests); 2) The Commander-in-Chief of the Armed Forces and the
various commanders-in-chief, with their own courts; 3) The Police, about
which I shall speak later; 4) Four Year Plan—Göring; 5) Einsatzstab
Rosenberg; 6) Department for the Allocation of Labor—Sauckel; 7)
Armament Ministry—Speer; and 8) last but not least, the NSDAP with its
offices and organizations.
Pursuant to the Führer order, thus _de jure_, the Reich Commissioner was
bound to obey unquestioningly the instructions of these central
agencies, and he was not allowed to have a say in measures taken by
them. The record of history still to be written will perhaps reveal with
what skill the defendant prevented some of these measures or at least
succeeded in toning them down. As to the Dutch population, its attitude,
as already mentioned, was completely hostile, and the resistance
movement, organized, equipped, and directed through the Dutch Government
in London, grew stronger every year. To reach a fair judgment, the
defendant’s actions should be considered against this background.
I now turn to the Indictment and shall follow in broad outline the
presentation of the French prosecutor.
The first charge is the alleged violation of the sovereignty of the
country by the introduction of the Reich Commissariat with its four
general commissariats: Abolition of civic liberties; introduction of the
Leadership Principle and dissolution of legislative bodies and political
parties. These measures cannot constitute a breach of international law.
Inasmuch as Germany, like the Netherlands one of the signatories of the
Fourth Hague Convention of 1907, recognized during the war the laws
governing land warfare, and notwithstanding the failure of the joint
participation clause (Allbeteiligungsklausel) after entry into the war
of the Soviet Union, the validity of the laws governing land warfare, in
the sense of the limitations referred to at the beginning of the above
statements, must be accepted for the Netherlands as well. Its rulings do
not appear to have been violated. As a result of the complete occupation
of the country and the flight of the Queen and of the ministers, the
highest governing power in civil affairs passed from the Crown and the
Parliament to the occupying power, and thus to the Reich Commissioner.
Owing to the unconditional capitulation of 10 May 1940, General
Winkelmann, who had been left behind in the country and was vested with
special powers, renounced his authority in every respect.
Furthermore, it is the recognized right of the occupying power to
organize the administration as its requirements demand. In so doing it
must do nothing which anticipates the final decision as to the fate of
the country. This was definitely recognized also by the Supreme Court of
the Netherlands by the decision of 12 January 1942, submitted by me. The
division of authority between the Reich Commissioner and the
Commander-in-Chief of the Armed Forces, as provided for by the Führer
decree, also represents an internal distribution of jurisdiction by the
occupying power. This is definitely established in the British _Manual
of Military Law_ of 1936. The fact that the State Parliament was
suspended, the activity of the State Council restricted to the
preparation of opinions in disputes on administrative matters and that,
finally, the parliamentary parties were dissolved, is likewise no
violation of international law, because during the period of occupation
it is the occupant who decides to what extent there is need for
legislative measures and for amendment of the legislation of the
country. As a rule, at every election about 50 parties entered the
contest for the 150 seats in the Dutch Parliament. The fact that these
parties, formerly at variance with one another, not only joined forces
in their antagonism to the occupying power, but very often were active
in the various resistance movements, gave the occupant every
justification for suspending and subsequently dissolving them—their
final dissolution was not decreed until 5 July 1941—the more so as the
country lay on the direct path of the coming developments of the war,
and an invasion was to be expected. This made it necessary for the
administrative apparatus to concentrate all its force to do away with
parliamentary obstruction and deprive these institutions of their latent
power to carry on hostile propaganda.
In answer to the accusation that the NSB was sponsored for this purpose
it must be said that the Reich Commissioner consistently refused to form
a government from these parties. That parties which were already in
existence in the country, or were newly formed, and who identified
themselves ideologically with the occupying power were encouraged by the
latter is likewise not disallowed by international law. As no official
administrative powers were vested in the NSB, and since political
organizations had no influence on the administration, the fact that in
1943 this party declared itself to be the representative of the
political will of the Dutch nation is immaterial. It always has been and
continues even today to be the practice of the occupying power to
encourage and assist political parties friendly to them.
The charge of Germanization is also unjustified. By their origin the
Dutch people were always considered to be Teutonic and it is, therefore,
not possible to make Teutons out of them. When we look into Dutch
history we find that for centuries the Netherlands belonged to the
Federation of the German Reich. If you roam through the country you can
still see in Groningen’s coat of arms the German Reich eagle, in the
same way that Amsterdam’s coat of arms has borne the emblem of the
German imperial crown since 1489. The first and the last Salic Emperors,
Konrad II and Heinrich V, died in Utrecht. That the occupying power
should desire to orientate toward central Europe a country cut off from
the sea and her colonies by the blockade was understandable, but it
never was intended, certainly not by the Reich Commissioner, to
eliminate the national traits and the independence of the Dutch. The
defendant was perfectly right when in his speech of 9 November 1943, in
Utrecht (Document Book 102), he declared among other things:
“We ourselves would cease to be Europeans should we fail in our
mission to tend and to promote the growth of these flowering
cultures of the European peoples, each with its own
individuality, and bound together with blood ties.”
Equally unjustified is the charge of the French Prosecution that
pressure was used to bring the Netherlands into the war. There was
nothing against enlisting volunteers of Dutch nationality in the German
Armed Forces; Article 45 of the Law of Land Warfare only forbids
compulsory recruiting for war against one’s own fatherland. This did not
make those who took up arms voluntarily immune from the regulations of
the Dutch penal code, as mentioned by the Prosecution, which during the
war were made more severe by royal edict. The same holds true of the
citizenship regulations for these volunteers and regulations concerning
marriage to German nationals. Inasmuch as these orders of the Reich
Commissioner had no legal value outside the compass of the German Reich,
the legal deduction that they do not constitute an abuse of sovereignty
in the sense advanced by the Prosecution can be put forward with a clear
conscience. That a press which notoriously placed itself in the opposite
camp of the occupying powers was silenced goes without saying.
The French Prosecution see a further suppression of sovereignty in the
stifling of intellectual life by the closing of the universities and the
demand for a declaration of allegiance. Special mention is made of the
closing of the University of Leyden. But the University of Leyden was
closed because of rioting by the students, and being a security measure
of the occupying power, it cannot be an infringement of international
law. In the same way, the demand for a declaration of allegiance is not
at variance either with the Rules of Land Warfare. According to Article
45 the population of an occupied country may not be forced to take the
oath of allegiance; according to the wording of the declaration all that
was demanded was to abstain from any action directed against the German
Reich or its army. Inasmuch as the population of an occupied country is
bound to obey the occupying power exercising the authority of the state,
this declaration, which does not make any actual demands, cannot be
considered a violation of international law.
The organization of the administrative authorities was taken over almost
as a whole, and maintained in the face of an entirely un-co-operative,
even hostile attitude; especially did one refrain from interference in
the courts. The only reproach in this direction is the dismissal of the
President of the Court of Justice at Leeuwarden. The defendant has
definitely declared that he assumes responsibility for this case, and he
has a perfect right to do so. The occupying power may interfere in the
field of the judiciary only when the purpose of the occupation is in
jeopardy. If a judge refuses to administer justice, even though the
cause for his complaint was removed by the Reich Commissioner, as was
the case in this instance, then the occupying power has the right to
remove from office the judge concerned.
The French Prosecution then continue, asserting that the defendant
initiated a series of acts of terror. In the course of the presentation
of evidence on this point we have heard what the circumstances of this
collective punishment were. Moreover, Kammergerichtsrat Rudolf Fritsch
and President Joppich showed by their testimony that the defendant was
extremely conscientious in the application of the right to grant pardon,
and that he limited capital punishment as much as possible. And as
regards the special police courts, both the defendant and the witness
Wimmer have proved that this was a procedure applied in exceptional
cases only, headed by an official of the judiciary, and that the
defendant had the right to the services of a freely chosen defense
counsel who could also be of Dutch nationality; a procedure which lasted
a short time only—about 14 days. Even today we find the individual
occupying powers using this procedure in a much severer form in
exceptional cases. In July 1944, as a result of a Führer order, the
regular courts were abolished and saboteurs and members of the
resistance handed over for sentencing, in spite of the protests of the
defendant.
One of the main points of the Prosecution is the question of hostages,
and I must therefore discuss this in detail. Dr. Nelte has already
generally discussed its legal aspect and I refer to his statements.
In RF-879 the Prosecution have picked out two particular cases: The
so-called hostage shootings at Rotterdam and the shootings after the
attempt against the Higher SS and Police Leader Rauter. Already in the
course of his first interrogation by the Prosecutor, the defendant, in
connection with the first case, spoke of the Armed Forces’ demand for 25
to 50 hostages. The witness Wimmer confirmed that these hostages had
been demanded by the Armed Forces, that through the defendant’s
influence this number was finally reduced, to 5, and that the Higher SS
and Police Leader was entrusted with the shootings.
The relations between the Armed Forces and the Reich Commissioner, as
well as the relations between the Armed Forces and the Police, were
regulated by the decree dated 18 May 1940 (_Reich Law Gazette_, Part 1,
Page 778, Document Number 1376-PS, Paragraphs 2-3).
In order to convict the defendant, the Prosecution submitted the
accusation but not the testimony of General Christiansen. In the course
of the interrogation the witness did not take the oath.
The record proves that: a) The order was issued by the Armed Forces
because of serious cases of sabotage and was analogous with the
so-called Law Governing Hostages promulgated in Belgium and France; b)
the hostages were then arrested by the German Police on the order of the
commander of the Armed Forces in Holland—“An order is an order”; c) the
High Command of the Armed Forces or Command, West insists on the
execution of the orders in spite of all representations; d) execution by
the Police; e) Proclamation I made in the judicial department of the
headquarters of the Armed Forces in Holland. Proclamation II drafted by
the Higher SS and Police Leader.
Would the Tribunal consider the argument for the justification of the
defendant to be sound if he used the arguments of General Christiansen
for his justification?
As to the second so-called hostage case, it concerns the consequences of
an attempt directed in March 1945 against the Higher SS and Police
Leader, SS Obergruppenführer Rauter, the highest police officer in the
Netherlands, who was directly subordinated to Himmler. If we recall the
consequences when in 1942 the tyrant Heydrich was murdered by the Czech
patriots, we can well imagine how Himmler in 1945, at the height of his
power, clamored for vengeance for the plot against one of his nearest
and most important officials. It is likewise understandable that the
defendant too, as head of the administration, ordered deterrent measures
to be taken, under the heading of “general prevention,” after an attack
had been made on one of his commissioners general. But he did not demand
any hostages; he merely asked for the execution of sentences passed at
legally conducted criminal cases. Exhibit Number RF-879 proves the truth
of these assertions since the witnesses Schöngarth, Lages, Kolitz, and
Gerbig unanimously confirm that only men already sentenced to death were
shot, and not 200 but 117, some of them possibly before the date
originally fixed for the execution. This also is confirmed by the
Criminal Commissioner Munt in D II of the report of the Dutch
Government, and likewise by Dr. Friedrich Wimmer, who was heard as a
witness before the Court. In this case it was not at all a question of
hostages in the real sense, but the justifiable execution of saboteurs,
plunderers, _et cetera_, from the point of view of the occupation, and
which was called the shooting of hostages in order to frighten the
population. The fact that the defendant succeeded in getting the number
of 500 real hostages as originally demanded by Himmler reduced to 117
orders of execution can certainly not be a reason for making him
responsible for Himmler’s cruelties.
The Prosecution furthermore asserts that the defendant in his capacity
of Reich Commissioner had agreed to, directed, and supported the
deportation of an enormous number of Dutchmen to Germany. The principle
which the question of the use of foreign workers involved has already
been thoroughly discussed by other defense counsel. May I be allowed to
add a few remarks on this point of the Indictment. According to
information which I received from the Office of Statistics, the prewar
unemployment figures of 300,000 to 500,000 men out of a population of 9
million was a chronic situation in the economic life of the Netherlands,
which was more or less rightly considered to be one of the richest
countries of Europe. When the country was occupied and the Reich
Commissioner took over the governmental power, he considered it his duty
to deal with unemployment in the interests of order and peace.
It was evident that this could not be achieved according to liberal
principles, because even in countries adhering to the liberal economic
order, the whole economy was directed to meeting the requirements of war
conditions. Until 1943 the employment of labor was based on the
voluntary principle. The defendant himself stated that a certain amount
of economic pressure was used. He had found Minister Speer in particular
very much in favor of his plan to transfer German undertakings from the
Reich to Holland, thus enabling the workers to be used in their home
country.
In 1943, three age groups of young unmarried men were called up by the
labor offices, but not by compulsion. When in 1944 the Reich demanded
250,000 workers, the Reich Commissioner refused, and this has been
confirmed by Lammers. The witnesses Hirschfeld, Schwebel, and Wimmer
have confirmed that the “man-hunting action” of the autumn of 1944,
which rounded up all men of military age among the population, was a
drive by the Armed Forces, for which the defendant cannot be made
responsible. On the contrary, and this fact must be recorded here, the
Reich Commissioner softened these measures by issuing 1,000,000
certificates of deferment and by urging proper transport, as well as by
mobilizing the workers. And in this connection it should not be
forgotten that the steady growth of the resistance movement rightly
caused the Armed Forces to fear lest the massing of people in the
southwest provinces might represent a grave danger to the occupying
power.
Seen from the legal aspect, it must be pointed out that the defendant
was bound by the orders of the central offices within the framework of
the Four Year Plan—that but for these orders and demands he would never
have sent workers to the Reich, also that where even the execution of
these orders represented a violation of the laws of humanity, he raised
protest. In his actions the defendant upheld the laws of humanity.
As to the Prosecution’s next point, the so-called economic looting of
the country, I likewise refer to the general principles I gave at the
beginning. Raw materials were requisitioned from the very start of the
occupation in accordance with the Four Year Plan with the help of the
Dutch authorities, who thus were able to prevent unnecessary hardship.
The defendant would naturally have preferred to keep the stocks within
the territory of his own administration. When requisitioning had to be
carried out, the defendant insisted on fair compensation being given and
he also prevented the transfer of Dutch concerns, as for instance the
margarine factory in Dortrecht or the Leyden Cold Storage Works. On the
insistence of the Reich Commissioner, Göring promised that the Dutch
people should not be in a worse position than German citizens and,
therefore, as far as the defendant is concerned, it would appear that
Article 53 of the Hague Rules of Land Warfare, if not too narrowly
interpreted, had been adhered to.
The report of the field economy officer under the Armed Forces commander
in the Netherlands, dated 9 October 1944 (Exhibit RF-132), and of
Lieutenant Haupt (Document Number 3003-PS, Exhibit USA-196) prove that
the requisitions were in the first instance carried out by the Armed
Forces. The latter points out that the whole position is made more
difficult by the fact that Reich Commissioner Seyss-Inquart is still in
the country, although to all intents and purposes he had resigned. This
certainly shows that as far as it lay within his power, the defendant
always tried to oppose or reduce hardship in this sphere of his
activity. In a total war the removal by the Armed Forces of stocks of
war material and rolling stock after the invasion, and when the enemy
was approaching, is likewise in keeping with international law.
The state of emergency created by the war called for the redirection of
Dutch economy in Europe. Before the war, according to official
statistics, 39 percent of the employed population were engaged in trade
and industry, 23 percent in commerce and transport, and 20 percent in
agriculture. Cut off from the rest of the world, navigation was at a
complete standstill. To give an example—60 percent of the trade passing
through the port of Rotterdam consisted of German goods. The highly
developed agricultural industry was based on improved and intensive
cultivation, dependent on artificial fertilizers from South America and
concentrated fodder from Canada. We have learned from the testimony of
Dr. Hirschfeld how relatively well Dutch agriculture and particularly
the world famed cattle-breeding industry survived the war. This was only
made possible by the understanding and collaboration of the Reich
Commissioner with the Dutch administration offices and the support the
defendant gave them.
The extension of trade over the continent of Europe, practically the
whole of which during the war was controlled by Germany and her allies,
no doubt offered good markets for Dutch trade and industry. It was,
therefore, natural that also as regards finance, the economy had to be
brought in line with conditions in the German Reich, or rather in the
European economic area. It was necessary to regulate the financial
economy if only for reasons of price policy. It would exceed the limits
of this Trial to state more details here.
May I only point out to the Prosecution that the defendant had no part
in fixing the amount of the occupation costs and was not even able to
examine them. Only the civilian budget of the Reich Commissariat was
settled by the Reich Commissioner and had to be approved by the Reich
and audited by the Reich Treasury. In agreement with the Dutch agencies,
civilian requirements were set at 3 million guilders per month, which
was not exceeded. On the contrary, at the end of 1943, a saving of 60
million guilders had been affected, and this remained in the
Netherlands.
The lifting of the customs barriers in interstate traffic was justified
by the joint price policy and could only benefit the Netherlands.
Likewise the ratio of the mark to the guilder was also fixed by mutual
agreement. A difference arose for the first time when the blocking of
foreign exchange was lifted. Here the views of the former Dutch
Secretary General, Trip, and those of Commissioner General Fischböck
differed. The defendant, who after all was not a financial expert,
submitted this important question to the central Reich authorities for
their decision, and the Defendant Göring has expressly stated during the
hearing of the evidence that he decided in favor of Dr. Fischböck. The
defendant therefore cannot be charged with criminal responsibility, not
even that of a _culpa in eligendo_, if in the place of Secretary General
Trip, who had resigned, he now appointed Rost van Tonningen, who was a
former commissioner of the League of Nations and therefore a first-class
financial expert.
The Defendant Funk has also testified here that he always considered the
clearing debts as real debts. In the Netherlands Government report it is
pointed out that the financial demands of the Reich amounted to
approximately the same in all the occupied western territories and that
only the methods differed. If Germany had won the war, the method
employed in the Netherlands would have produced the result that the
Netherlands would have had a real claim amounting to 4,500,000,000
guilders against the Reich. The whole question therefore is not a matter
for a criminal trial, but rather is one that should be dealt with in the
peace negotiations. Furthermore, an exact account was kept of
everything. It even went so far that every time a member of the Armed
Forces boarded a train with a free ticket, the conductor of the
Netherlands Railroad Company always made a careful note of it.
As far as the alleged looting of museums and libraries is concerned, as
well as the looting of the royal property, to save time let us refer to
the evidence which proved beyond doubt that the defendant was
particularly mindful of the need to safeguard the world famous public
art treasures and that he reduced any arbitrary demands of the Reich
offices, if there were such, to a minimum.
Insofar as any objects not essential for the conduct of the war, such
as, for instance, art treasures, libraries, _et cetera_, were taken
away, the defendant had no part in this. The few pictures which he
bought for Vienna he acquired in the open market. As for the royal
property, the instructions he issued were such that the confiscation of
this property was no more than a demonstration. That this is true is
shown in the Dutch Government report. The Rosenthaliana library which
has been mentioned so often, did not reach the Reich, as the defendant
had it stopped at Groningen after it had been removed against his will.
The Arnhem case would likewise appear to have been cleared up by the
witnesses Dr. Hirschfeld and Wimmer, and the report of the field
economic detachment (Document 81).
The Jewish question has also a certain connection with the economic
problems. Before I deal with this main point I must make the position of
the Police in the Netherlands clear. The Prosecution seeks to establish
that the Police, and by that is meant also the German Police,
particularly the Security Police, was under the defendant. This attempt
falls short when it is remembered that all the signatories with the
exception of the Soviets hold that the Police is actually a part of the
civilian, particularly the domestic, administration. The situation in
Germany was this: _De facto_, and not _de jure_, Himmler was
independent, more powerful even than any other minister, although he was
nominally State Secretary of the Ministry of the Interior. The strictly
disciplined and centrally directed SS was subordinate to him in his
capacity as Reichsführer. The Defendant Keitel testified on 5 April 1946
that from the outbreak of war the SS became more and more an independent
power factor in the Reich. He and those who worked with him had no full
knowledge of the extent of Himmler’s powers, and Himmler and Heydrich
had usurped the jurisdiction over life and death in the occupied
countries by the frequently mentioned Führer order.
What was the situation in the Netherlands?
1) The Führer decree of 18 May 1940 already shows that the German Police
was not part of the Reich Commissioner’s organization, nor was it
subordinated to him. For it says in the decree: “The Police is at the
Reich Commissioner’s disposal,”—which would not have been necessary if
it had been a part of the Reich Commissioner’s office.
Thus even though the Reich Commissioner is the supreme governing power
in the civil sphere, the Police is not a part of it.
2) In Decree Number 4 the Reich Commissioner named the administrative
agencies so that the Dutch could clearly see how it concerned them,
without being affected by the splitting up of the Reich authorities.
With regard to the Police, that is, the German and Dutch Police, a
second Commissioner General was appointed for security affairs (Higher
SS and Police Leader). According to Article 5 of this decree the Higher
SS and Police Leader has under his command:
a) The German Police and Waffen-SS (For the Dutch this order of things
was declarative, for the Higher SS and Police Leader was appointed by
the Führer on Himmler’s recommendation, without the Reich Commissioner
being consulted. Rauter presented himself to the Reich Commissioner as
having been already appointed, and the Reich Commissioner would never
have been able to appoint the commander of the Waffen-SS, which opinion
is also shared by the Prosecution).
b) The Dutch Police (This order of things was constitutive, because the
Reich Commissioner was responsible for the Dutch Police).
The Dutch witness, Dr. Hirschfeld, who was Secretary General throughout
the occupation, definitely confirmed that Rauter was directly
subordinate to Himmler, and that the apparent unity of the Police and
administration, according to the decree, did not exist in reality.
On Page 21 of his book _Axis Rule in Occupied Europe_ Raphael Lemkin
defines the task of the Police as being the liquidation of politically
undesirable persons and Jews, just as the main responsibility for the
seizure and deportation of the workers in the occupied countries was
borne by the Police.
THE PRESIDENT: Would that be a convenient time to break off?
[_The Tribunal adjourned until 22 July 1946 at 1000 hours._]
ONE HUNDRED
AND EIGHTY-THIRD DAY
Monday, 22 July 1946
_Morning Session_
THE PRESIDENT: The Tribunal understands that the British Prosecution
will answer on behalf of all the prosecutors with reference to the
documents to be translated, relating to the organizations of the SS and
the political leaders; so shall we deal with those first?
LIEUTENANT COLONEL J. M. G. GRIFFITH-JONES (Junior Counsel for the
United Kingdom): My Lord, I am myself dealing with the documents for the
political leaders, and my friend, Mr. Elwyn Jones, is dealing with those
for the SS.
Perhaps it would be convenient for the Tribunal to take the documents
for the political leaders first.
THE PRESIDENT: Yes.
LT. COL. GRIFFITH-JONES: My Lord, I have spoken to Dr. Servatius, who
represents the political leaders corps, and we have agreed on the
documents which he should submit in his final book. I have had lists
printed which show the documents on which we have agreed.
Originally he has submitted six document books, with a total of over 250
documents, some of considerable length. We have agreed that from those a
total of 90 odd documents should be included in the final book, and of
those 90 we have only—certain passages—to be translated. I have a copy
of the document books which have been marked, the passages on which we
agree, and the remainder, of course, would be excluded.
THE PRESIDENT: What length will the document book be? Can you tell at
all?
LT. COL. GRIFFITH-JONES: Except that there will be about—nearly 100
exhibits, but they will be quite short, the majority of them. The
longest, I think, is two pages, and the remaining documents are just
short extracts, perhaps a paragraph or two paragraphs.
THE PRESIDENT: Yes.
LT. COL. GRIFFITH-JONES: Perhaps I might say this: Dr. Servatius had
included in these books a number of affidavits which we have excluded,
because we understood the Tribunal desired affidavits to be heard before
the Commissioners. He had also included a number of quotations from
_Mein Kampf_. These, if the Tribunal agree, we have excluded, because we
thought that the Tribunal had their own copy of _Mein Kampf_ and it
would save work in the translating and printing departments.
For the remainder, much of the matter that was suggested was cumulative,
and Dr. Servatius, I think, quite agrees that what we have put down now
in Column A will meet his purpose.
There are—I understand, talking to him just before the Tribunal sat
this morning—there are certain amendments to this list which he desires
to make. He desires to include in Column A Documents 50, 68, 69, and
162, which at the moment are excluded.
My Lord, perhaps it would be convenient if Dr. Servatius and myself
discussed the matter further, and perhaps you would entrust us to come
to some arrangement about the inclusion or exclusion of those documents.
THE PRESIDENT: Yes, certainly.
LT. COL. GRIFFITH-JONES: I do not know whether Dr. Servatius wishes to
say anything.
DR. ROBERT SERVATIUS (Counsel for Leadership Corps of the Nazi Party):
Mr. President, I agree with this arrangement, and these minor questions
which still require clearing up I will settle with the Prosecution. The
books will probably then be reduced to two. There will be two document
books left.
THE PRESIDENT: Thank you.
Yes, Mr. Elwyn Jones?
MAJOR F. ELWYN JONES (Junior Counsel for the United Kingdom): If Your
Lordship pleases, with regard to the SS documents, Dr. Pelckmann and the
representatives of the Prosecution have reached an agreement as to 99 of
the documents. It has been agreed that 22 should be excluded and, with
regard to the others, some are to be included _in toto_, and as to the
others only extracts are to be included.
As to Documents 31 and 32, Dr. Pelckmann indicated that he was
reconsidering his application with regard to these two documents, and it
may, therefore, be possible that Dr. Pelckmann will have some
observations to make to the Tribunal with regard to them.
With regard to six of the documents, however, the Prosecution and the
Defense have not been able to reach an agreement. Dr. Pelckmann insists
that those documents are necessary for his case and it might, therefore,
be convenient for me to indicate to the Tribunal the Prosecution’s
objections with regard to those six documents.
The first is Document Number 69, which is an extract from a speech made
before the first meeting of the Reichstag after the Nazi seizure of
power by the Social Democrat leader, Wels. This extract states that
Wels’ party favored the plea for national equality and denied Germany’s
war guilt. I submit, on behalf of the Prosecution, that that extract is
wholly cumulative. There is an abundance of evidence of that kind before
the Tribunal already. It is in any event, I submit, not relevant to the
SS case.
THE PRESIDENT: Germany’s war guilt, at what time?
MAJOR JONES: With regard to the war before the last one.
THE PRESIDENT: Yes.
MAJOR JONES: I finally suggest that if that document is admitted by the
Tribunal then it would be proper, in the interests of historical truth,
for the extract to be continued to include the severe criticism of the
Nazi Party made by Mr. Wels.
The next document is Document 85, which is an extract from the
_Völkischer Beobachter_ giving a quotation from William Randolph
Hearst’s alleged statement to the Defendant Rosenberg on the 3d of
September 1934 to the effect that when that distinguished gentleman was
in Germany 3 years ago there was the greatest disorder there; today, the
3d of September 1934, under Hitler’s leadership Germany is a country of
order. The Tribunal will remember that this date was about 9 weeks after
what even Himmler has described as the appalling murders of the 30th of
June 1934. I respectfully submit that that extract is, again,
cumulative, irrelevant, and, finally, is of no probative value
whatsoever.
The next document is Document 86, which is an extract from the
_Völkischer Beobachter_ purporting to be an American athlete’s
impression of a journey through Europe in 1934. He states that he is
satisfied with what he saw in Germany. Again, I submit that that is
cumulative, irrelevant to the SS Case, and of no probative value.
The next document which is in dispute is Document Number 96, which is an
extract from a book by an author alleged to be an American which was,
significantly, published in Germany in 1935. It is a long extract
dealing with concentration camps. It describes a visit by the author to
Oranienburg Concentration Camp, in which he refers to the modern
sanitary installations there, bedrooms which are apparently as good as
those of the American Army; the prisoners apparently ate exactly the
same dinners as the camp commandants and the SS guards. The author says
that they had three rich meals every day, naturally without luxury, and
he goes on in that vein. I do submit that that extract is of no
probative value whatsoever.
There are, finally, two further documents, 101 and 102.
Number 101 is an extract from an American magazine purporting to
describe the result of certain experiments carried out by American
scientists with a vaccine said to be immunizing.
Number 102 is an extract from a book, _An American Doctor’s Odyssey_,
referring to further experiments with agents said to be immunizing and
to other experiments in connection with the beriberi disease.
The Prosecution does not, of course, in any way admit the truth of the
facts set out in these extracts, but I submit that even if they were
true they have only a _tu quoque_ relevancy and I submit should not be
included in the documents for the SS organization.
Apart from those documents, the Defending Counsel and the Prosecution
have reached an agreement, and there is no more to say, My Lord.
THE PRESIDENT: The Tribunal would like to hear Dr. Pelckmann.
HERR HORST PELCKMANN (Counsel for the SS): Mr. President, I have to deal
with various documents which have just been objected to by the
Prosecution. First of all, I refer to Document Number SS-31 and Document
Number SS-32.
Documents SS-31 and SS-32 have to do with the question whether the SA
and the SS demanded that students should enter the SA and the SS. This
is a question which is highly important for the SA. The SA have not yet
completed their collection of documents. I think these documents are
going to be submitted by the SA, and I shall therefore put them aside
for the moment. Up for debate are the remaining six documents only. Let
us first come to Document Number SS-69.
I should like first to say something in principle with reference to
these documents. The documents do not, by any means, deal with the
question as to whether what they contain is or was objectively true.
They are merely submitted in order to point out how the readers assumed
that real facts were being presented, and these facts were decisive for
the opinions formed by the German people as well as, of course, by the
members of the SS who are part of the German nation; just as they were
for the opinions formed by a Party member or a non-Party member.
They are documents dealing with the attitude adopted abroad or in our
country. I believe that matters will have to be looked at from a
different point of view in this connection than perhaps was done in the
case of the individual defendants. The attitude adopted abroad cannot be
relevant for the individual defendants, for the Prosecution assert that
for the majority of the defendants it would appear to be evident that it
was just these major defendants who deceived foreign countries. With
reference to the masses of the population, however—and that affects the
SS members also—what was thought and done abroad must be decisive in
forming an opinion as to whether the Nazi regime is criminal or not.
That is the general point of view which I think applies to all these
documents.
The first Document Number SS-69 is a speech, as the prosecutor has said,
by the Social Democrat member of Reichstag Wels. It is merely to show
that this Social Democrat deputy, even after the seizure of power by
Hitler, agreed with Hitler that the Treaty of Versailles must be fought
against. By that I do not wish to say anything about the justification
or nonjustification of the Treaty of Versailles. I am merely trying to
show what the masses of the people were thinking and what the followers
of Hitler, who had only just come into power, were thinking, when even a
Social Democrat agreed with the Party Program on that point. For that
reason I consider the documents as relevant, and particularly for the
SS, because they, just as all the other Germans, were influenced by such
statements in forming their own opinion.
THE PRESIDENT: Do you mean that the document says that the Treaty of
Versailles should be fought against by war, or should, be attempted to
be changed by negotiations?
HERR PELCKMANN: No, it does not at all mean that the Versailles Treaty
should be fought against by war.
Now, as to Documents Number SS-85 and SS-86.
Hearst, the American publisher of world-wide reputation, who as far as I
know had considerable influence at that time in America, says, as the
Prosecution correctly point out, in September 1934, a few months after
the bloody events of 30 June 1934, that when he was in Germany 3 years
ago he found the greatest chaos and that today under Hitler’s leadership
Germany is a land of perfect order.
Please note—and I must emphasize once more—that I am not referring to
the objective facts; I am stating what was said about conditions in
Germany by circles abroad—which in my opinion, were of weight in the
publishing field—what was spread abroad and what was brought to the
notice of the German people by means of the National Socialist
propaganda machine, so that the German people, and with them also the
bulk of the members of the SS, could not believe anything else than
these published statements and saw in them a confirmation of their real
belief at the time that here something really was being done for order
and thereby also for world peace.
The second statement, in Document Number SS-86, is on somewhat similar
lines. It is a report of 27 September headed “America is participating
in the Olympic Games.” The man in charge of American athletics had gone
into the question very carefully as to whether the American nation ought
to participate in the Olympic Games, and he then made a report in
America in which he made statements about his experiences in various
parts of Germany. He expressed himself very satisfied and was very much
in favor of American participation in the Olympic Games.
The result was, as expected, that the committee decided that America
would participate in the games. This again constitutes a corroboration,
a consolidation and strengthening of German public opinion, and
therefore also of the opinion of the bulk of the SS members, that in
certain respects foreign countries were adopting an absolutely positive
attitude toward the new Germany. It should not be forgotten that the
different years, the different dates are most important. When the
fundamental questions affecting the Indictment against the organizations
were discussed before the Tribunal, from 28 February to 2 March, it was
also pointed out that the time at which membership of an organization
was acquired must very likely be regarded as a deciding factor. One must
take into account in this connection that, when after 1933 the
membership of the SS grew considerably, it was surely a decisive factor
for the individual contemplating membership to know that, especially in
those years following the rise to power, foreign countries too were
giving some evidence—I am giving only examples—of their approval. I
regret, Mr. President, that I have to dwell on this subject more than
perhaps was expected, but it is necessary, because the fundamentals of
the defense—at least the defense of the organizations—have not yet
been discussed before the Tribunal.
Then we come to Document Number SS-96. Here again it is a voice from
abroad—an American journalist. Of course, I am not in a position to
investigate what standing this journalist has. But again, the objective
importance is that it is the voice of an American journalist whose
comments were published in Germany by a well-known German publisher in a
book which had a tremendous sale. This American journalist describes, in
the pages which I am quoting, among other things, conditions in Germany
and conditions in the concentration camps.
To summarize them, they are described as not unfavorable, and I am of
the opinion that again this, in 1935, was of importance to the
question...
THE PRESIDENT: Could you tell the Tribunal the name of the journalist?
HERR PELCKMANN: Yes; his name is Doug Brinkley, for Douglas
Brinkley—D-o-u-g-l-a-s B-r-i-n-k-l-e-y.
THE PRESIDENT: Would you spell it again?
HERR PELCKMANN: Douglas—D-o-u-g-l-a-s; Brinkley—B-r-i-n-k-l-e-y. I had
already said that I, of course, know this man even less than the Judges.
But one must remember that after all this was published in Germany; and
the average German cannot know whether there is a well-known or unknown
American journalist of this name.
At any rate, he speaks in detail about conditions in concentration
camps, and about the knowledge the Germans and also the SS members had.
This statement is relevant because during future hearings and before the
commissions I shall show, and have shown, that the knowledge of these
conditions in concentration camps was confined to the very small circle
of those who were occupied with them.
Finally, Documents SS-101 and 102. Here we are concerned with the
question of the medical experiments on living human beings. First of
all, I should like to say that I do not by any means maintain that
experiments undertaken in concentration camps conform with the
principles of humanity. Without detailed evidence I am not capable of
passing judgment on this point; but I can prove from scientific
publications of recent date that the question of whether experiments
which might cause death should be carried out on living men to save the
lives of tens or hundreds of thousands of human beings is, at least,
argued in scientific circles and, at least according to these documents,
has certainly been affirmed by well-known foreign—American and
British—scientists.
In this connection, I am assuming that internees in concentration
camps—as I have been trying to prove before the Commission and,
perhaps, shall continue to prove—volunteered for such experiments. I
must point out, however, that evidence that such experiments were
carried out abroad on people who did not volunteer is supplied, in my
opinion, by the wording of this statement. Document SS-101 ...
THE PRESIDENT: Would you mind pausing there? I thought you said that
they had volunteered for it.
HERR PELCKMANN: I said that those documents do not show clearly that
experiments made abroad were made on real volunteers, whereas I contend
and must contend that according to testimony given up to now,
experiments in concentration camps were carried out on volunteers. It
...
THE PRESIDENT: I was only asking you what these documents that you are
speaking of, 101 and 102, said. Did you say that they show that the
people who were experimented on volunteered for the experiments?
HERR PELCKMANN: No. I said, Mr. President, that it is different, and
neither one nor the other of the documents states quite clearly what the
position was. One document seems to indicate that the people did not
volunteer. What appears of more importance to me is that...
MAJOR JONES: If the Tribunal please, I do not think that the defending
counsel’s statement should go without challenge. It appears from the
Document 101, the report from the magazine, which is not a scientific
magazine—it is the Time magazine, which I understand is not a work of
science—that the extract is silent on the question whether the persons
who were used for these experiments were volunteers. The second extract
from Document 102 states quite clearly that the subjects of the
experiments were volunteers.
HERR PELCKMANN: Quite right. The second document deals with voluntary
experiments. The first document, however, leaves the question open. But
I conclude from circumstances shown in the document that it does not
seem to be absolutely certain whether there were volunteers. It is an
extract from a fairly recent publication, _Time_ of 24 June 1946. It
deals with a new remedy for tuberculosis. American scientists carried
out experiments with antituberculosis inoculations on 3,000 Indians.
Half of them were inoculated with this drug. Half were given a harmless
salt injection; 40 tuberculosis cases developed; 185 cases did not show
any reaction, and 38 died. And these experiments were carried out on
Indians who were free from tuberculosis.
The other document is a German translation of an American book, _An
American Doctor’s Odyssey_, written by an American doctor. In it he
describes how the research worker, Fraser, experimented with the
well-known disease of beriberi on criminals in Bilibid who, as the
Prosecution have mentioned, earned for that a small perquisite and, if
the experiments were dangerous, they could obtain a reduction in their
sentence. These experiments were tried on the inmates of the lunatic
asylum of Kuvala Lumpur and were carried out in the following manner:
Part of the inmates were given unpolished rice to eat, and part were
given polished rice. The second group of these inmates became ill. Then
the two groups were exchanged, and the sick became healthy and the
healthy, sick. The effect of these experiments and of the disease in
general is very severe. The patients cannot leave the bed and often die
of a weak heart. I quote from this book: “I shall not forget the
impression made upon me by the huge hospital for beriberi incurables at
Singapore, where these poor people were crawling around on their
hands...”
THE PRESIDENT: We do not need all the details of it.
HERR PELCKMANN: I am merely going to say that we are concerned here with
a contested scientific opinion...
MAJOR JONES: I am intervening again. But such a sinister implication is
being given by the alleged purport of these extracts by defending
counsel that I really must protest. The report that is given is of the
symptoms of beriberi disease; it is not an account of the result of
these experiments at all. The experiments took this form: some Malayans
were tested with their ordinary diet of polished rice, which is said to
bring on beriberi; other prisoners were tested with a diet of unpolished
rice. And it was proven that a diet of polished rice, which is their
usual diet, brought on beriberi. There is no sinister import. There is
no Dr. Rascher element about this.
HERR PELCKMANN: I should like finally to come to the subjective angle.
It is alleged by the Defense that these experiments too were kept
extraordinarily secret. And if they had become known...
THE PRESIDENT: We have got the essentials of the arguments.
HERR PELCKMANN: Thank you.
THE PRESIDENT: We will hear now from the United States Prosecutor with
reference to the General Staff and High Command, the SD, and the
Gestapo.
MR. THOMAS J. DODD (Executive Trial Counsel for the United States): Mr.
President, with reference to the SD and the Gestapo we have come to a
complete agreement with the defense counsel so there is no contest
concerning the documents. They number some 150 pages for the Gestapo and
some 80 pages for the SD.
With reference to the High Command and the General Staff, we have not
been able to agree on a few documents. In the first Document Book Number
1, Document Number 5, we have objected to its translation certainly,
because it has to do with the knowledge of General Busse, about the
political feelings of some of the generals toward National Socialism,
and it’s simply his own opinion and does not purport to be anything
more. Attached to it are graphs and charts and so on, and it’s made to
appear that it is based upon opinions which General Busse has gathered
from conversations—nothing to show that he is any authority on the
subject or would be in a position to know anything beyond the ordinary
capacities of any other man.
Document Number 8 we also object to because again it is an instrument
based upon General Winter’s collection of the opinions of other people.
Insofar as we can tell, General Winter made some kind of a poll—a
private poll, to be sure—of his associates, and asked them what their
opinions were. And he...
THE PRESIDENT: What is the nature of the actual document. Is it a
publication?
MR. DODD: No, Sir, it is not. It is in the form of a statement by
General Winter.
THE PRESIDENT: Is it sworn to?
MR. DODD: Yes, Sir, it is.
THE PRESIDENT: Busse and Winter, they are both sworn, are they?
MR. DODD: Yes, Sir, they are and they submitted their statements, these
two men.
THE PRESIDENT: And what is the date of them, 1946?
MR. DODD: Yes, Sir, very recently. Sometime in June 1946.
THE PRESIDENT: What’s the date of that one?
MR. DODD: One of them is July—anyway within the last 2 months.
The Document Number 9 is of the same character again. It is a statement
based on written opinion. In all our statements which have been supplied
by members of the German armed services, and in any case all of these
statements which are affirmed to and sworn, no statement has been sworn
to by themselves. The individual who makes the affidavit goes about and
inquires and he, on his oath, states that these things are true or
represents that they are, without showing that the persons who gave him
the information have done so on an affirmation or on oath.
Document Number 11 is a newspaper article about General Marshall’s
report to the Secretary of War of the United States. That has already
been introduced here by the Defense and our objection is somewhat
technical, but I think nevertheless necessary and valuable. We feel that
a newspaper extract should not be used, particularly when the document
itself is in evidence, and if the counsel will only use what already is
in evidence, it will have no troubles. It is Exhibit Jodl-56. We have
not been able to make that clear to the Defense Counsel, so far.
Document Number 13 is again a poll, conducted by—a statement by General
Winter rather, based on another one of his private polls of his fellow
prisoners, concerning their attitude toward the so-called Commissar
Order, and besides this matter has been handled before the Commission
established by the Tribunal, and there the matters were objected to and
sustained by the Commissioners. But in any event we object again here,
even to the translation, because it seems of no value at all to have
General Winter’s submitted statement, based on this kind of information.
Document Number 20 is a letter written by a General Seidler. The letter
written by General Seidler, of course, is not a sworn statement. This is
Document Number 20, and we objected to it on that ground. Besides we
have very grave doubt about its value in any event.
Document Book 2 contains one document which we object to. That is
Document Number 15. That also is not an affidavit, but instead it is an
unsworn letter from General Von Graevenitz to General Von Kleist—it is
written under the date of June 24, 1946—which, in our judgment, is of
no value; and we do not see that it would be helpful in any event to the
Tribunal. Other than that, we have no differences.
THE PRESIDENT: Mr. Dodd, will you tell us with reference to these
documents that you object to, how long they are?
MR. DODD: They average about—from what I see of the German text—two to
three pages, and attached to some are drafts. Do you mean the whole, in
total?
THE PRESIDENT: Yes, take them in order, starting with Number 5.
MR. DODD: That has two pages. It is the statement with the draft
attached to it.
THE PRESIDENT: What about Winter’s Number 8?
MR. DODD: That’s seven pages and two pages of drafts, which makes it
altogether nine pages. The newspaper article about General Marshall’s
report, I don’t know. So far, only one typewritten page. Document Number
13 is a 10-page document. General Seidler’s letter is one page, and
Document Number 15 is only one page. It is also a letter.
THE PRESIDENT: Thank you. Now, Dr. Laternser.
DR. HANS LATERNSER (Counsel for General Staff and High Command of the
Armed Forces): There still remain certain documents which are disputed.
First of all, Document Number Mil-5. The table submitted with Number 5,
on Page 29, refers only to historically established facts which are
graphically represented in that table in order to show their extent and
the effect they had within the accused military leadership. The
affidavit of General Busse, which is attached, is not intended to prove
facts which are historically known in any case, but merely to explain
the table. It is not, therefore, a private opinion on the part of
General Busse. The admissibility of that table can therefore not be
objected to.
I will take Documents Mil-8 and 9 together, because the objections
raised against them are similar. The lists contained therein are meant
to facilitate the Tribunal’s judgment on the circle of persons falling
under the Indictment. Thus we are not concerned with written statements
but with lists and I am only too willing, if the technical department is
too busy, to furnish the necessary number of copies of these lists
myself.
The basis for these lists is Exhibit Number USA-778, (Document Number
3739-PS) which was submitted by the Prosecution on 2 March 1946. This
Document USA-778 which was prepared by the Prosecution contains the
names of all the persons who are said to come under the Indictment and
also shows the periods during which they held office. This Prosecution
document, Exhibit USA-778, does not state the source from which these
details originate, therefore they are merely assertions on the part of
the Prosecution. Using this Exhibit Number USA-778 as a basis, however,
I asked General Winter to draw up the submitted lists, Number Mil-8 and
9, to the best of his knowledge and conscience. In contrast to the lists
submitted by the Prosecution the Tribunal will be able to judge the
source of these lists particularly well, for General Winter appeared
personally before the Tribunal as a witness in Jodl’s case. The list
Number 8 contains the names of persons dead and further those of
individually accused persons and those whose posts were only temporary,
not permanent. According to the lists that makes 56 persons and for all
practical purposes of judgment that number need not be taken into
account. In this list are shown also the many cases where commanding
generals were relieved of their positions on account of serious
differences of opinion.
The list Number Mil-9 gives the names of 31 people who occupied
positions for less than 6 months and to whom the Prosecution have
referred. This document is relevant with regard to alleged conspiracy.
If therefore the Tribunal desires to have a good factual basis for
judging the composition of the circle of persons indicted, then these
lists should be accepted. Moreover, the list already accepted by the
Prosecution, USA-778, can only refer to the same or similar sources as
those of the lists which I am submitting, and the lists of the Defense
quote the sources and can be checked. If I had used the same method as
the Prosecution, I would only have had to submit the lists without the
addition of an affidavit. Therefore, I beg that these documents be
admitted.
Number Mil-11 has already been accepted in the same form by the Tribunal
as Document Number Jodl-56, a fact which, incidentally, I mentioned at
once to the Prosecution, and attempts to make that clear to me were
really not necessary.
THE PRESIDENT: Number 11 we understood was a newspaper report with,
reference to General Marshall’s report.
DR. LATERNSER: When that objection was brought up I immediately pointed
out that the same document to which I was going to refer had already
been submitted during the proceedings against General Jodl. That is the
Marshall report. Therefore, I withdraw this document of mine.
THE PRESIDENT: You are withdrawing it? I see.
DR. LATERNSER: Yes, as the document has already been submitted. I merely
wanted to include it in my book for the sake of having it complete. Then
I would just like to remark, Mr. President, that attempts on the part of
the Prosecution to make this clear to me are not necessary, because I
usually understand that kind of argument fairly easily.
Document Number Mil-13 is also based on USA-778 as far as the circle of
indicted persons is concerned. This list, also compiled by General
Winter, is meant to complete the picture proving the correct attitude on
the part of the generals toward the Commissar Order. As that list—based
on the list submitted by the Prosecution—and the affidavit attached to
it give the exact sources, the document can readily be checked as to its
worth. The objections on the part of the Prosecution may detract from
its value as evidence, but the documentary character of the document
cannot be destroyed; therefore, this list, too, should be admitted.
THE PRESIDENT: Hasn’t Document Number 13, that is to say the subject of
the attitude of the generals to the Commissar Order, already been dealt
with before the Commission?
DR. LATERNSER: Yes, Mr. President, but examination of witnesses and
submission of affidavits cannot give the same picture as the one I am
attempting to give by means of this document. This document contains the
names of the generals who belonged to that so-called group; in a special
column I have marked whether the order was received and in another
column whether the order was carried out, and these facts which General
Winter mentions here are explained by him in his affidavit which is
attached to the list itself. He goes on to quote the sources from which
he had gained his knowledge, so that I can examine the sources and so
the evidential value.
THE PRESIDENT: Dr. Laternser, you have called a certain number of
witnesses before the Commission, have you not?
DR. LATERNSER: Yes. I had eight witnesses.
THE PRESIDENT: I suppose all of them, or almost all of them dealt with
this subject. You put in a certain number of affidavits and those
affidavits have dealt with this subject, have they not?
DR. LATERNSER: Yes.
THE PRESIDENT: How many affidavits have you put in before the
Commission?
DR. LATERNSER: I cannot, Mr. President, give you the exact number at the
moment. Affidavits have been submitted by me on only two matters.
MR. DODD: There were 72 of them, Mr. President. He put in 72 of those
affidavits.
THE PRESIDENT: Well, isn’t this really an attempt to extend and make
more exhaustive the proof which you are submitting?
DR. LATERNSER: Mr. President, this Commissar Order no doubt is a
criminal order, and I was merely trying to show clearly to the Tribunal
by means of this list how well the high generals had conducted
themselves on the point; I had summarized the outcome of that part of
the evidence in this list. General Winter has compiled the list, so the
Tribunal can decide whether this list is valuable or not. I am merely
trying to say that the objections raised by the Prosecution can affect
the evidential value of this document but not the document itself. I ask
that it be admitted.
THE PRESIDENT: But if you put in 72 or 82 affidavits before the
Commission, why shouldn’t you put in this document before the
Commission?
DR. LATERNSER: Well, but here we are not concerned with affidavits. Up
to now only affidavits have been submitted whereas here in Document
Number Mil-13, the most important thing is the list, and the affidavits
which are attached are merely an appendix to that list. They are
intended to give an explanation of the list. The main feature of this
document, therefore, is the list and not just the explanatory affidavit,
so that it would not have been admissible before the Commission.
THE PRESIDENT: Yes, Dr. Laternser, but it doesn’t make it inadmissible
before the Commission that it is an affidavit exhibiting a list. It
could have been put in before the Commission, and if it had been put in
before the Commission it would have been brought to our notice as is, of
course, everything that goes before the Commission. Also, it is pointed
out to me of all these documents, they could all have been put in before
the Commission.
DR. LATERNSER: No, Mr. President, that point of view cannot be right. Up
to now we could merely submit affidavits to the Commission and not
documents. The documents were to be included in the document books, and
that is what we are discussing today. This Mil-13 is a document, that
is, the list, whereas the affidavit is purely of secondary character. It
is merely meant to give an explanation. I ask that a decision be made.
THE PRESIDENT: Well, we hear what you say and we will consider the
matter.
DR. LATERNSER: Then I wish to speak about Documents Mil-15 and Mil-20.
Both are letters, the admissibility of which is of importance to me
particularly since ordinary letters have frequently been admitted as
evidence during this trial. I will remind you in particular of the
Rainer letter in the case of the Defendant Dr. Seyss-Inquart. Then there
is the letter of Generaloberst Zeitzler, dated 8 July 1946, which is
Mil-20. It is important because it shows that as a result of the efforts
of a general who comes within the indicted group the Commissar Order was
rescinded. That is why this letter assumes particular significance for
me as defense counsel of the indicted group.
THE PRESIDENT: Will you give me the dates of the letters?
DR. LATERNSER: The letter is dated 8 July 1946, and it was addressed to
me. That, Mr. President, is all I have to say to the objections raised
by the Prosecution.
THE PRESIDENT: Thank you. Mr. Dodd, that concludes the arguments that we
need hear this morning, does it not?
MR. DODD: Yes.
THE PRESIDENT: Well, the Tribunal will consider your suggestions. I call
on Dr. Steinbauer for the Defendant Seyss-Inquart.
DR. STEINBAUER: Gentlemen of the Tribunal, on Friday I was on Page 71
and, with the permission of the Tribunal, I should like to continue on
that page.
From what has been said it is shown that the Reich Commissioner had to
assume only a limited responsibility for the German Police, that is to
say, insofar as he used them for the execution of his orders in civilian
matters. When the Reich Commissioner called for their help, the Police
as a rule first got in touch with Himmler. But in all matters which came
within the jurisdiction of the Police, the Reich Commissioner could
neither issue orders to them nor intervene _de jure_ in their activity.
This fact must never be lost sight of when judging the Jewish question,
the concentration camps, and the deportations.
The admissibility of special courts and police protective custody is
recognized even in the report of the Dutch Government. The Police were
responsible for the arrests and the management of the concentration and
prison camps. As explained in detail by the defendant when examined as a
witness, he went to great trouble, as Wimmer and Schwebel also
confirmed, to put an end to abuses he had heard about in the camps. I
shall refer only briefly to the treatment of the so-called Dutch
reprisal hostages in whose case the defendant was very interested, also
to the fact that he succeeded in obtaining permission for the members of
the clergy who had been imprisoned in the Reich to return to the
Netherlands.
Having thus briefly outlined the position of the Police and their
tremendous power, I shall pass on to one of the main joints of the
Indictment—the Jewish question.
In their trial brief the Prosecution state that Reich Commissioner
Seyss-Inquart alone bears full responsibility for the carrying out of
the Nazi program to persecute the Jews in Holland, and that in his
Amsterdam speech before the members of the NSDAP on 13 March 1941 he
himself declared: “To us the Jews are not Dutchmen; to National
Socialism and to the National Socialist Reich the Jews represent the
enemy.” In that speech Seyss-Inquart also explains why, as defender of
the interests of the Reich, he believed he had to adopt that attitude
toward the Jews. He knew them to be people who, through their influence
on the German people, would paralyze their will to resist, and who would
always prove to be the enemies of the German people. But this speech
shows more than anything else that Seyss-Inquart considered all measures
against the Jews as security measures for the duration of the war only.
He speaks of his desire to create tolerable measures during the period
of transition and says that after the occupation had come to an end it
would be for the Dutch people to decide what was to be the fate of the
Jews. It was quite natural and obvious for the Jews, as a result of the
treatment they had experienced in Germany and later in the occupied
countries, to become no matter what their nationality the most bitter
opponents of National Socialist Germany. That had to be taken into
account by every official who had to look after the interests of the
Reich in occupied territories. This also makes the speech referred to in
the beginning understandable. Therefore when Seyss-Inquart was
commissioned by the Führer decree to safeguard the interests of the
Reich in Holland, he also had to take some kind of stand on the Jewish
question. It was his intention to remove the Jews from leading positions
in the State and in the economic life of the country for the duration of
the occupation, but otherwise to refrain from further measures against
them. Actually, the measures instituted by him merely provided that
those Jews who were working for the State were sent on leave or were
retired with a pension.
In the meantime Adolf Hitler had transferred the handling of the whole
Jewish question to Himmler, or to Heydrich, who received full powers for
the whole sphere of interest of the Reich. The Security Police,
dissatisfied with the dilatory way in which the Reich Commissioner
handled the Jewish problem, availed themselves of their full powers and
had established an office in Amsterdam, whose interference was the cause
of constant friction with the deputy of the Reich Commissioner in
Amsterdam. The Security Police claimed that they were unable to
guarantee the safety of the Reich, with which task they had been
entrusted, unless further measures against the Jews were taken to
restrict their activities in the field of economy and limit their
personal liberties. English and French people had been assembled in
separate camps and had been driven over the Reich border after their
property had been confiscated as enemy property, which treatment Germans
living abroad had likewise experienced in enemy countries. The Police
made it known that very many Jews were actually involved, and often took
a leading part in all the more serious attempts at sabotage and other
forms of resistance. The Dutch Jews also, some of whose ancestors had
come from proud Spain, and many of whom had come from Germany and the
East as emigrants, had already held leading positions before the
occupation in the economic field, and especially in the press, which
they had used to combat National Socialism. When the enemy entered the
country, they knew it would be a life-and-death struggle and, contrary
to Shylock’s words in the _Merchant of Venice_: “For sufferance is the
badge of all our tribe,” they not only placed their property at the
disposal of the resistance movement but also their lives. The Reich
Commissioner could not close his eyes to this fact. Because of the great
number of persons involved, it was simply not possible to mete out to
the Jews treatment similar to that of the English or the French or other
enemy aliens by confining them in a camp. Measures restricting personal
freedom of action were taken by the Higher SS and Police Leader as
Himmler’s direct subordinate, or by the Security Police on direct orders
from Heydrich. Included in these measures was also the introduction of
the Jewish star—incidentally, the Dutch did not consider this a mark of
abasement. At the same time that measures affecting the freedom of
movement were taken, the property of Jewish organizations and Jews was
also placed under control. The Reich Commissioner appointed Dr. Bömker
his special trustee and gave him the task of supervising the measures
taken by the Police—insofar as this was administratively possible—and
of preventing excesses. In fact, he intervened a number of times and was
able to prevent unjustified police measures.
A large part of the activity of the Reich Commissioner’s office was
concerned with economic measures, and the description by the Dutch
Government Commissioner for Repatriation, Exhibit Number USA-195,
(Document Number 1726-PS) gives a clear picture of the entire Jewish
problem in Holland. The chart shows that the Reich Commissioner was able
to delay measures against the Jews for almost a year, and that really
intensive measures did not begin until February 1941 with the formation
of the Central Office for Jewish Emigration which was ordered by
Heydrich and which was under the supervision of SS Obersturmführer De
Funte. A comparison with measures taken against the Jews in Germany
itself and in other occupied countries shows a pronounced uniformity,
which likewise indicates that the measures in question were not taken by
the Reich Commissioner but were measures applied uniformly by Reich
offices, in other words, by the Police. The Reich Commissioner also saw
to it that Jewish property was sequestrated in an orderly manner. When
it finally came to the liquidation of the property, following orders
from the Berlin central offices, proceeds from the liquidation were not
confiscated, but credited to the Jewish owners. Toward the end the
Jewish administrative office had accumulated some 500 million guilders.
In order to put an end to the constant pressure and interference by the
Police through Heydrich, the Reich Commissioner, together with the
Higher SS and Police Leader, tried to stabilize the Dutch Jewish
question by assembling the Jews affected by the restrictive regulations
in two districts of Amsterdam and in two camps, where they were to live
under their own administration. One of the camps was Westerborg, where
they had a Jewish camp police of their own. On the outside, the camp was
under the supervision of the Dutch police. When, in the spring of 1945,
it was taken by the Canadians, the British radio reported that they
found the Jews housed there to be in good condition, unlike the state of
affairs in other camps which were found outside Holland. The second
confinement camp was to be Vught. Himmler made a concentration camp out
of it. The Jewish community of Amsterdam was under the direction of
Ascher, a merchant who dealt in precious stones. Funds were made
available to the Jewish community, especially for school purposes;
negotiations were carried out with firms to provide work in the Jewish
quarters. At the beginning of 1942 Heydrich, or rather Himmler, demanded
the transfer of the Dutch Jews to assembly camps situated in Germany.
Both referred to the full powers given them by the Führer and pointed
out that sooner or later an invasion had to be expected. Holland seemed
a likely territory, because the ports of Rotterdam and Amsterdam
provided suitable supply bases, and from there the British would take
the shortest route to the Ruhr, the industrial center of Germany. To
permit so many people extremely hostile to Germany to remain in a
territory which would see future operations in the battle against
Britain was inconsistent with the safety of the Reich. The Police were
adamant and all the Reich Commissioner was able to do was to take steps
to make the evacuation by the Police more humane. The Reich Commissioner
succeeded in getting thousands of Jews exempted so that these people
were able to remain in Holland. The defendant got his agents to inspect
the internment camps and, insofar as he was able to do so, he managed to
have bad conditions remedied by the intervention of the Christian
Church. The order for the evacuation was not given by the defendant but
by Himmler or Heydrich. The defendant did not even give his consent for
the evacuation. As a result of representations by the defendant, a
number of Jews were taken to Theresienstadt, which was said to be a camp
supposedly under the supervision of international agencies, such as the
Red Cross, and where the Jews were said to be well treated. As a result
of exemption regulations introduced at the request of the Reich
Commissioner, a great many Jews were exempted from evacuation. The
afore-mentioned Dr. Bömker was appointed to supervise the transport of
the Jews in Holland and in many cases succeeded in getting the Higher SS
and Police Leader to remedy bad conditions. Most of the Jews were taken
to Poland, and probably one of the most terrible sentences is that to be
found in Exhibit Number USA-195—a document submitted by the
Prosecution—which reads:
“Total number of deportees: 117,000 .... After their leaving
Holland all trace of them was lost. Absorbed in an agglomeration
of deportees from almost all occupied countries, they can no
longer be identified as a separate group.”
Now comes the cardinal question of the whole Indictment, the dramatic
climax in the Trial against this defendant. Did the defendant know of
the fate of these many unfortunate and innocent people; did he
intentionally approve of their fate or is he guilty because he did not
prevent it?
Again and again, the defendant has solemnly declared, even when
questioned as a witness under oath, that he did not know anything about
this, and that he was of the opinion that the Jews really were going to
be resettled in the East for the duration of the war.
When in 1942 or 1943 the defendant had an opportunity of speaking to
Adolf Hitler himself, when he had to make a report to him, he steered
the conversation round to the Jewish question. When the Reich
Commissioner pointed out that the evacuation of the Jews was causing
serious unrest in the Netherlands, Adolf Hitler replied that he had to
segregate the Jews from the body of the German people, because they were
a destructive element, and that he wanted to resettle them in the East.
When Himmler, the Chief of the SS and of the German Police, was
questioned by the defendant at the beginning of 1944, all he said in
answer to the Reich Commissioner’s apprehensions was that he should not
be worried about his Jews, his Dutch Jews were his best workers.
The government representatives who had been sent to inspect some of the
camps returned with the report that the Jews were getting along well and
that they were satisfied. News from the deportees reached the
Netherlands at regular intervals, although it became less frequent as
time went on. Now that the heavy curtain which concealed the horror of
these mass murders has been lifted, we know the circumstances and the
truth. The scrupulously careful probings in this Trial especially have
revealed the diabolical manner in which Hitler and Himmler knew how to
disguise and conceal their criminal intentions concerning the final
solution of the Jewish question. When I read the Dutch report about the
Jewish question for the first time, I myself was deeply moved. This is
the document which, together with the so-called Hossbach document—the
last will of Hitler of the year 1937—I have, especially submitted to my
client. As for the Hossbach document, in which the evacuation of 1
million Austrians was demanded, Dr. Seyss-Inquart told me that he had
never seen it and had also never heard of it. He said: “If I had known
about such intention I would never have been a party to it.”
Also when I submitted to him the document concerning the Jews, he told
me in a way which convinced me that at the time he knew nothing about
the “final solution” and the happenings in the extermination camps. When
I then asked him why he did not resign when he found he could not
prevail upon Himmler and his accomplices, especially concerning the
Jewish question, he told me that, after all, I too, had been a soldier
and knew that a soldier must not desert in wartime. He had arrived at
the conclusion that if he had remained in his post, quite apart from his
other tasks, it was because he doubted very much that the Netherlands
would fare any better under a successor.
As a defense counsel and jurist, I must add the following: One could not
know of the measures of extermination which the Prosecution have
mentioned. If extermination did take place to the extent alleged, then
these are the acts of a special group of Himmler’s hangmen resulting
only from a desperate situation. But in penal law, the principle applies
that the causal nexus is interrupted if an independent criminal act
interposes. This is the case here. Before I conclude the most difficult
chapter of the whole Indictment I should still like to examine the
question, as to whether the statement of the defendant, that he actually
could not have had any knowledge of the terrible crimes which were
committed in the extermination camps, is, in fact, credible...
THE PRESIDENT: Wouldn’t that be a convenient time to break off?
[_A recess was taken._]
THE PRESIDENT: I will deal with these documents. The documents objected
to in the case of the SS, 69, 85, 86, 96, 101, and 102, are all
disallowed.
In the case of the SD and the Gestapo all the documents are agreed.
In the case of the High Command, the Tribunal allows the Documents 8 and
9 to be translated and put in the document book. Number 11 is withdrawn.
Numbers 5, 13, 15, and 20 may be submitted to the Commissioners, but
they will not be translated for the document books. That is all.
Now, Dr. Steinbauer.
DR. STEINBAUER: I continue.
First of all I should like to present the testimony of a French medical
doctor, who himself was a prisoner in an extermination camp for a long
time. This is Dr. Goutbien from Montgeron (Seine-et-Oise), who writes:
“It is difficult for a normal human being to picture exactly
what a concentration camp, which is designated in the German
language by the two letters ‘KZ,’ is like.
“It is difficult for various reasons: First of all, a man
brought up according to the principles of our civilization,
which is based on the elementary Christian humanitarian
doctrine, cannot believe the statements made by the victims of
so many atrocities; the sadism, the exaggerated refinement used
in causing suffering, go beyond the normal powers of feeling;
moreover, the Nazis tried to conceal their crimes in a
hypocritical way, so that a foreigner who might have inspected a
concentration camp 2 or 3 years ago would have been impressed by
the order and cleanliness.
“If a jurist had examined the execution cases, he would always
have found at least sufficient reasons, if not valid ones, for
their justification. Finally, if a doctor had searched for
medical records, he could very easily have concluded that the
causes of death were normal.
“So heavy was the curtain which covered the concentration camps,
so careful were the SS to see that it was so kept—and so
jealously did they guard the secrets! The SS tried to give a
legal appearance to their crimes. We have here a characteristic
feature of Hitlerian hypocrisy.”
The Jesuit, Father Küble, also expresses himself in a similar vein in
his book, _Die Konzentrationslager, eine Gewissensfrage für das deutsche
Volk und für die Welt (The Concentration Camps—a Question of Conscience
for the German People and the World)_. He writes, Page 19:
“... and he believed it possible to prevent discovery by an
absolutely impenetrable ring of silence with which he surrounded
his works. This ring was so tightly drawn that a German had to
travel abroad to learn something concrete about the camps and to
read there about these ‘Soldiers of the Marshes’ (Moorsoldaten).
At home books like these did not exist, and one learned only
very little from hearsay. Nobody came out of the worst camps,
and the wrongdoers themselves were ‘liquidated’ from time to
time, so that they could not tell anything. But the few who got
out of the less terrible camps were so intimidated, that they
gave only quite general, obscure hints—just enough to create in
the entire people a general feeling of horror of these
mysterious places.”
But even the little which went from mouth to mouth never came to the
knowledge of higher officials of the Third Reich, for if they followed
up these things, the Police learned about it and took care to see that
the bearers of such “atrocity propaganda” kept silent. Therefore, as
time went on one refrained from telling anything to these officials.
But the most important testimony is that of one who knows, who himself
had an active share in the liquidation of the Jews. On 25 June 1946
Dieter Wisliceny, the special representative of Eichmann, who was in
charge of the liquidation of the Jews, was questioned as a witness by
the appointed judge of this Tribunal. He stated that commissions of the
International Red Cross or foreign diplomats were conducted to
Theresienstadt in order to make it appear that conditions were normal.
The Jews who were brought to Auschwitz were forced to write postcards
before they were murdered; these postcards were then mailed at long
intervals in order to create the impression that the persons were still
alive.
He invited various representatives of the press. To the specific
question, “Under whose jurisdiction is the Jewish question in the
occupied countries, under the commander of the Order Police, the
Security Police, or the Security Service?” he gave the answer:
“According to my knowledge, the Jewish question in the other occupied
countries is an affair of the Higher SS and Police Leader, according to
a special order by Himmler.”
In order to make the deception even greater, 500 Reichsmark, for
instance, would be demanded from the Slovak Government as settlement
contribution for every Jew. I confronted the defendant with this, and he
told me that Himmler also demanded from him a settlement contribution of
400 Reichsmark for every Dutch Jew. As Reich Commissioner he refused
this, because of the inadequate information about the actual settlement
of the Jews. Also he argued that the final settlement would have to be
left over until the peace.
During his examination the defendant, of his own accord, mentioned
individual cases of sterilization. The applications I made to have the
letters written by Seyss-Inquart to Himmler procured as evidence, taken
in conjunction with the statement of the defendant, show the following
facts:
Contrary to the statement of the then 18-year-old informant Hildegard
Kunze, Seyss-Inquart never reported through any sort of official
channels to Himmler about the Jewish question. What happened was that
Seyss-Inquart asked Himmler not to aggravate the situation of the Jews
in the Netherlands any further, referring in this connection to the
measures which had been carried out in the meantime against the Jews and
which exceeded the measures in the Reich, and at the same time pointing
out the cases of sterilization.
Seyss-Inquart took an immediate stand against the sterilization of women
and made a statement to the Christian Churches that no coercion must be
exercised. As a matter of fact, after a short time there were no further
cases.
As regards the case itself, the defendant can only be made responsible
insofar as he did not take an immediate stand against it, without being
sure of course of being able to prevent the action. The reasons for the
attitude of the defendant are given in the letter which it was requested
should be put in evidence. He was worried that the position of the Jews
should be made even worse and supposed that these Jews would be spared
further attention from the Police in the future.
In any case, insofar as measures against the Jews went through the
defendant, they were taken only as measures against hostile foreigners,
for reasons which the defendant mentioned in his speech of 21 March 1941
in Amsterdam. Whatever happened beyond that was the express order of the
Reich Central Agencies, especially Heydrich, and was mostly carried out
by organs of these Reich Central Agencies themselves.
A further count of the Indictment is the assertion that the defendant as
Reich Commissioner, in pursuance of the planned policy to weaken and
exterminate the peoples of the occupied countries, had deliberately
neglected food supplies for the Dutch, and this finally brought about a
hunger crisis.
Such allegations appear to be refuted by the testimony of the witnesses
Dr. Hirschfeld and Van der Vense, as well as by the statements of the
defendant himself. In the interests of the population the whole
machinery of food supply was from the very beginning under Dutch
direction, although it was known to the Reich Commissioner that it was
particularly in this field that leading cells of the resistance movement
had established themselves. The food supply in the Netherlands was
certainly not worse than in Germany, from whom they even received
supplies of grain. As late as 1944 the ration amounted to 1,800 calories
and before that 2,500 calories, which was supplemented by a great
variety of things.
The Reich Commissioner succeeded in putting a stop to the knapsack
traffic of the Armed Forces, which was mentioned in the
cross-examination, by intervening with the Reich Food Estate—even if it
was not until 1943.
How much was done by the defendant to improve the food supplies of the
Dutch, for example by developing the northeast polders, and by resisting
the excessive demands of the Reich, is confirmed by the witness Van der
Vense.
That the Dutch production of nitrogen could be reserved for Dutch
agriculture until September 1944 is due exclusively to the defendant.
From the autumn of 1944 on, the situation with regard to food supplies
deteriorated considerably. Most of the country was in the fighting zone
after the invasion, and the traffic routes had been smashed by countless
air attacks. This created a very difficult food situation, particularly
in the west of Holland, where millions of people were crowded into a
small area in three large cities. In view of the small number of
occupation troops, it would have been an egregious blunder to drive
these crowded masses to desperate resistance by planned starvation.
When in September 1944 there was a strike of railway men and barge men,
engineered by the London exile government, which was counting on a
favorable outcome of the battle near Arnhem and a German collapse in the
very near future, this, seen under the aspect of international law, was
a state of emergency in which the country had placed herself vis-à-vis
the occupying power. It was only natural that the Wehrmacht used all
available shipping space for its own defense and to secure its food
supplies.
In order to avoid repetition, may I refer to the testimony of Van der
Vense and Dr. Hirschfeld and stress the most important point, namely,
that the witness Dr. Hirschfeld testified that on 16 October 1944 the
Reich Commissioner had already given the order for lifting the ban on
shipping traffic. He could have reckoned with the fact that a blockade
of 4 weeks, which was not intended as a reprisal, would not cause any
damage, because sufficient foodstocks were available or could be sent
into Holland in the months of November and December, but what he really
did was to lift the embargo at an earlier date, organize emergency
transport and import food from the northeastern provinces, using for
this German transport.
The failure of the Dutch transport system, the constant day and night
enemy air attacks, the acts of sabotage by the resistance movement, and
finally the serious coal shortage hampered the supply operations, so
that the state of emergency caused by the strike cannot in any way be
laid to the charge of the defendant as a criminal offense.
In any case, the statistics submitted by me showed that during the
entire period of the occupation, until the middle of 1944, the
population steadily increased, and that general standards of living in
spite of wartime conditions did not deteriorate to any considerable
extent.
As the food situation deteriorated more and more because of the war, the
defendant arranged for food to be brought in by German trains, and also
made food available for children from German Wehrmacht stocks. He
supported the welfare work of the churches and of the Red Cross,
although the Geneva badge was often misused by the resistance movement.
The Crown Prince of Sweden, as President of the Swedish Red Cross,
expressed his special thanks to the Reich Commissioner. Finally, the
Reich Commissioner contacted the Dutch Government-in-Exile through their
confidential agents, and in this manner brought about an agreement with
the Allied High Command, whereby supplies of food for Holland were
secured and the occupation actually brought to an end.
In Allied military circles at that time one still expected the
resistance to continue for another 60 days. The German occupation troops
in the Netherlands would certainly have been able to hold out for this
length of time, but this would have meant that the country and its
population would have perished.
I come now to the last count of the French indictment, that of the
floods and destruction caused by the occupying power. Even if the
Prosecution had not brought up this point, then I, as his defense
counsel, would have discussed this matter before the Tribunal, because
it is this point perhaps more than any other which makes the defendant
appear in another light—a very favorable light. In referring to the
testimony of the witnesses Wimmer, Schwebel, and Dr. Hirschfeld, also
that of General Von Kleffel, I should like to make the following brief
statement: The Tribunal are perhaps aware that 40 percent of the total
area of the Netherlands lies below sea level. In the course of centuries
of hard work the land was wrested from the sea and converted into
fertile farming land. Mighty dikes protect the land; locks and pumping
installations regulate the entry of water and traffic on the inland
waterways. The constant struggle against storms and water have made
Dutchmen a proud and freedom-loving people. “God has created the earth,
but we have created our country ourselves” says a Dutch proverb.
When the Canadian troops thrust toward the north, the Reich Commissioner
did not take the road back to the Reich from Groningen, as many people
expected him to do, but returned to The Hague in order to carry out his
task until the end. He feared that the collapsing Reich might adopt a
policy of desperation which would lead to the destruction of a country
as vulnerable as Holland, where there were 271 people to the square
kilometer.
The legendary battle of the Goths in which everything is utterly
destroyed became an obsession with many. It was Goebbels who said in his
boastful manner that if they must go, they would slam the door with such
a bang that the whole world would hear. The Reich Commissioner warned
the people against such ideas. In fact, the “scorched earth” order was
given and it would have meant the destruction of all technical
installations in Holland, including dams and locks, and laying waste
two-thirds of the country. Acting together with Minister Speer and
Dönitz, he prevented all this. This has also been confirmed in my
questionnaire by the commander, General Von Kleffel, and acknowledged by
a U.S. Army Chief of Staff, Bedell Smith. Historical monuments were also
to be destroyed, as has been testified by Schwebel.
The defendant’s counsel of General Christiansen has informed me that in
addition to the technical troops of the Armed Forces who dynamited and
flooded those installations which military necessity justified, Himmler
sent his own men to carry out destruction behind the backs of the Armed
Forces. All this was prevented by the Reich Commissioner who, conscious
of his responsibility, intervened, and the country was spared enormous
devastation.
In May 1932 a simple memorial was placed on the dam of the Zuiderzee,
the largest dam ever constructed, which bears no name—only the words:
_Een volk dat leeft, bouwt aan zijn toekomst_ (A nation that lives
builds at its future).
Regardless of how the Trial may end, perhaps the day will come when
under this proverb the words will be added: “Saved from destruction by
Seyss-Inquart.”
Thus I come to the end of the second point of the Indictment.
Slowly the curtain falls on the drama of the alleged conspirators. But I
ask you: Can one call that man a cruel and ruthless despot and war
criminal, who in the middle of the life-and-death struggle of his nation
is placed at the head of the administration of an enemy country and yet
tries again and again to prevent excesses or to moderate them?
However, I would not wish to conclude my discourse without expressing
some general remarks on the Trial. I esteem France and her cultural
tradition, and I have considered it an honor to be allowed as an
attorney to cross swords with Frenchmen in these proceedings. I have
listened to the speech of the Chief Prosecutor for France, M. François
de Menthon, with close attention and sympathetic interest. However, it
cannot remain entirely undisputed that M. De Menthon has described
Germany as the eternal enemy of France and demanded the severest
penalty, death, for all defendants without exception. He thereby brings
out one of the weaknesses of this Trial, namely, that it will always be
the trial of the victors over the vanquished. One is reminded too
strongly of the Gaul, Brennus, who with his “_vae victis_” throws the
sword into the scale. M. De Menthon with this demand unintentionally
obstructs the road to a lasting peace.
The sin against the spirit is the basic error of National Socialism and
the source of all crimes, says M. De Menthon; National Socialism is
based on racial theory, a product of German mentality. But M. De Menthon
rightly explains that National Socialism is the final stage of a
doctrinaire development over a long period. There are no direct
transitions in history, but all is rooted in preceding ideas and
undercurrents. The events of the twentieth century can only find their
explanation in the developments of the preceding century. The closing
years of the nineteenth century saw the birth of an exaggerated
nationalism, and here it must be said that it was not the Germans, but
the French who first established the racial theory, for instance, Count
Gobineau in his essay _Sur l’Inégalité des Races Humaines_ and Georges
Sorel in his _Réflexion sur la Violence_.
At the end of his statement M. De Menthon quotes the book by Politis,
_La Morale Internationale_, which I have also mentioned. Politis
describes this exaggerated nationalism as a veritable international
malady, deriving from the nineteenth century. He mentions particularly
the case of the Frenchman Maurice Barrès. He sees in the phrase, _La
patrie eût-elle tort, il faut lui donner raison_ (my country right or
wrong), the negation of all ethical laws.
I would like to confront M. De Menthon with another Frenchman. He is an
obscure professor of history. With the Gestapo, the German and the
French police on his track, he frequently changes his appearance and his
name. He is everywhere; we find him in the Massif Central, in Auvergne,
in the mountains near Grenoble, at Bordeaux on the coast, and in Paris.
Wherever he appears Wehrmacht trains are derailed, ammunition dumps
blown up, and important industrial plants shut down. He always remembers
the words of De Gaulle: “Our country is in mortal danger, join us,
everybody; fight for France!” The name of this man is Georges Bidault.
The first thing he did after the enemy had been driven out of the
country was to visit severely wounded soldiers in the hospitals. But he
does not only go to the Frenchmen, he also visits the German wounded in
their wards, and says to them: “Comrades, I wish you speedy recovery and
a happy return to your homes.” These words of the man who today is the
leader of France show us the path to peace by the honest and frank
collaboration of peoples and nations.
Hitler wanted to create a new Europe; in this he failed because of his
methods. Germany lies defenseless, her towns are destroyed, her economy
shattered. France, one of the oldest countries of Christendom, the
country which at the end of the eighteenth century proclaimed the Rights
of Man, has today the special mission and responsibility of saving
western civilization. To achieve this, however, it is necessary that
distrust, which poisons the life of all peoples, should disappear. I
thus conclude my very brief and general remarks on the Trial.
Honorable Judges, into your hands I confidently commend the fate of my
client. I know well that you will consider carefully all the facts which
speak for Seyss-Inquart. But I will walk once again through the streets
of Nuremberg, as I have done so often during the long months of this
Trial, and from the ruins of the imperial castle look down on the German
countryside. From the ruins of the old city rise, scarcely damaged, the
monuments of the painter Albrecht Dürer and the geographer Martin
Behaim. They are the prophets of German art and science. May those two
names be symbols for the future, and like beacons guide the German
people from dark misery to the shining realms of a lasting peace.
THE PRESIDENT: The Tribunal will adjourn for a few minutes.
[_A recess was taken._]
THE PRESIDENT: I call on Dr. Bergold for the Defendant Bormann.
DR. FRIEDRICH BERGOLD (Counsel for Defendant Bormann): Your Lordship,
Your Honors: The case of the Defendant Martin Bormann, whose defense the
Tribunal has commissioned me to undertake, is an unusual one. When the
sun of the National Socialist Reich was still at its zenith, the
defendant lived in the shade. Also during this Trial he has been a
shadowy figure, and in all probability, he has gone down to the
shades—that abode of departed spirits, according to the belief of the
ancients. He alone of the defendants is not present, and Article 12 of
the Charter applies only to him. It seems as though history wanted to
preserve the continuity of the _genius loci_ and to have chosen the town
of Nuremberg to be the scene of a discussion as to whether the fact that
a defendant is allegedly no longer alive, can obstruct his being tried
_in contumaciam, in absentia_. In Nuremberg we have an adage which has
come down to us from the Middle Ages, and which says: “The Nurembergers
would never hang a man they did not hold.” Thus, even in former times
they had an excellent way in Nuremberg of dealing with the question as
to how proceedings can be taken against a person in his absence.
THE PRESIDENT: It appears to the Tribunal that you are now about to
argue first of all that the Tribunal has no right to try the Defendant
Bormann in his absence, and secondly that if it has the right it is not
advisable. Both these points were considered on the 17th of November
1945, and were decided on the 22d of November 1945, after you had been
appointed; and both were decided in favor of trying Bormann in his
absence. That is to say that the Tribunal has the power under Article 12
of the Charter and that it was in the interests of justice in the
circumstances to conduct a hearing in his absence.
DR. BERGOLD: That is true, Your Honors. I know of this decision. I
should only like to ask whether in the course of the proceedings points
of view were put forward which might have caused the Tribunal to change
this decision, for I assume that decisions of the Tribunal can be
reconsidered by the Tribunal themselves. If I put forward this point it
is to show that the Trial here has brought out some points of view which
call for a reconsideration of the question.
THE PRESIDENT: Dr. Bergold, surely this is an inappropriate moment at
which to advance this argument when we have already conducted the trial
of Bormann. We have given you over a long period the opportunity to make
application for a reconsideration of this decision.
Are you not hearing what I say?
DR. BERGOLD: I did not quite understand the last sentence.
THE PRESIDENT: I said that to make such an application now is far too
late. You have had all these months since November in which you could
have made such application for a reconsideration of the decision of the
Tribunal. But instead of making it, you proceeded with the defense of
the Defendant Bormann.
Possibly you have your disk wrongly set. Would you look at the disk and
see whether it is all right?
DR. BERGOLD: Mr. President, the translation is coming through so badly
and indistinctly that I cannot fully understand your meaning. The
translation is bad. It is only the German translation of what you are
saying that is not sufficiently clear.
THE PRESIDENT: I shall speak very slowly. What I said was that if you
wished the Tribunal to reconsider the decision of the 22d of November
1945, you should have made application earlier. Instead of that, you
went on to appear as the representative of Bormann, and the Tribunal
decided to hear the case against Bormann. Therefore, they are not
prepared to listen to this argument for the reconsideration of their
decision now.
If you think it in the interests of your client, the Tribunal has no
objection to this document’s being filed—or to the filing of these
pages of your speech. But the Tribunal does not propose to reconsider
its decision.
DR. BERGOLD: Mr. President, one piece of evidence did not come up until
the end of my case—the testimony of the witness Kempka. In my opinion,
this statement by the witness Kempka made the probability of Bormann’s
being dead so evident that only from this point of view can the question
of a reconsideration be brought up. I assumed ...
THE PRESIDENT: All I was saying was that from Page 1 to Page 10 the
Tribunal will not hear that read. The question of whether Bormann is
dead or not is a question with which you deal later in your argument,
and the Tribunal will hear you upon that. But from Page 1 to Page 10 the
argument does not deal with the death of the defendant.
If you will begin at Page 10, with the words, “I cannot...” it is the
last paragraph on Page 10—the Tribunal will hear you.
DR. BERGOLD: Then I must submit to the decision of the Tribunal.
Gentlemen of the Tribunal:
I cannot and I will not criticize the Charter. In bringing forward my
argument, which the Tribunal will not hear, I merely wanted to establish
the fact that the Charter has created a novel procedure in that, in a
trial _in absentia_, a final decision is being made, without its being
possible to reconsider the case, should the defendant be found. But in
my modest opinion, in consideration of this quite novel procedure in the
legal history of all times and of all countries, the Tribunal will at
the present stage of the Trial and in view of the proof brought by the
witness Kempka, make further use of the right given to it by Article 12.
As a reconsideration of the decision is no longer possible, the
proceedings, in my opinion, should only be carried out if, by a suitable
application of the clear principles of Russian law, it is first proved
that the Defendant Martin Bormann is willfully evading the Trial, and
secondly that there is no doubt whatsoever about the facts. As the
Charter does not stipulate more clearly when and under what conditions
the Tribunal may enforce its right, the Tribunal itself must create the
law.
Owing to the incontestable nature of the sentence, the Tribunal’s
responsibility in this particular case is a very heavy one. My opinion
that the sentence is final is also shared by the Tribunal, as in the
last phrase of the public summons against the Defendant Bormann it is
stated explicitly that, should the defendant be found guilty, the
sentence will be carried out without any further procedure as soon as he
is found.
But in my opinion it has not been proved at all that the defendant is
willfully fleeing justice. I think that, as revealed by the examination
of the witness Kempka, it is even highly probable that the Defendant
Bormann is already dead. Witness Kempka has stated that on the night of
1 to 2 May 1945 he, together with State Secretary Naumann, who led the
way, followed by the Defendant Bormann and Standartenführer Dr.
Stumpfecker and himself, had tried to flee through the Russian lines by
keeping close to the left side of an advancing tank. Bormann was walking
close to the middle of the tank, so that the witness thought that
Bormann was holding on to the tank. It seemed to the witness that it was
necessary to do this in order to keep pace with the moving tank. Having
advanced some 30 to 40 meters, and after having passed the German tank
barrier, this tank was blown up, presumably by a direct hit from an
antitank grenade.
The witness observed, without there being any possible doubt, that in
the immediate vicinity of the tank, just where Bormann had been walking,
a spurt of flame came from the exploding tank, knocking down Bormann and
State Secretary Naumann who was walking immediately ahead of him. Thus
Bormann found himself in the center of the explosion, which was so
violent that the witness is convinced that there can be no doubt that
Bormann died from its effects. It cannot be maintained that since the
witness escaped the violence of the explosion Bormann also must have
come out alive. It should be noted that Kempka was running behind the
tank on the left hand side and thus was at a distance of some 4 meters
from the explosion. Furthermore, he had additional protection due to the
fact that Dr. Stumpfecker was running in front of him and his body was
hurled against him by the explosion and served as a cover. Kempka has
testified that Bormann was wearing the uniform and the rank insignia of
an SS-Obergruppenführer at that time.
Even if Bormann had not been killed on this occasion he would certainly
have been so seriously wounded that it would have been impossible for
him to escape. Unquestionably he would have fallen into the hands of the
Soviet troops who, according to the affidavit of the witness Krüger,
were quite close to the Reich Chancellery and had occupied it already on
2 May 1945, the defenders having fled. In view of the loyal manner in
which the U.S.S.R. is taking part in these Trials, they would have
delivered Bormann to the Tribunal for trial.
There are only two possibilities—at least in my opinion—namely, that
the wounded Bormann fell into the hands of the U.S.S.R.—having been
proved not to be true, there remains only the second
possibility—namely, that Bormann lost his life. I am therefore of the
opinion that I have showed that there is sufficient proof to believe
that Bormann is dead.
In my opinion, one should not be allowed to say that a man is presumed
to be alive until death is established with absolute certainty, a
presumption which I, the defendant’s counsel, would have to refute. The
legal assumption of a person’s being alive has been valid in all
countries of the world but only in the field of civil law, and only for
the purpose of regulating matters relating to inheritance or the
property of married persons. However, a legal assumption of a person
being alive has only very seldom been established, for instance, in
common law and in the Prussian law, and even there it is contested.
The Civil Code makes no provision at all for the assumption that a
person is still alive; it merely admits a declaration that a missing
person is dead in the eyes of the law. Common law neither provides for a
declaration of the death of a person nor for the legal assumption of a
person’s being alive. Russian law permits, after a short period of time,
the declaration that a missing person is dead in the eyes of the law,
and this may be followed by the declaration of the person’s death. But
neither of these rulings justifies the assumption that a person may be
alive.
Whatever may be the case in civil law, it is nevertheless a fact that
there is no provision in the criminal law of any country for the
assumption that a person is alive. If criminal law does not recognize
the assumption of a person’s being alive, then it is not my duty either
to refute such an assumption of a person’s being alive. It must then
suffice that the Defense should prove, as I have already done, such
circumstances as could lead one to conclude, after reasonably evaluating
the chances in the usual course of life, that a defendant is dead.
I am, therefore, most definitely of the opinion that the death of the
Defendant Bormann has been proved with sufficient probability; in fact
the probability is so great that the proceedings should be suspended for
all time, since the Charter, too, does not recognize proceedings against
a dead person. If there were such a thing as the trial of a wrongdoer
after his death the Prosecution, according to all logic and reason,
would have had to indict the real heads of National Socialism.
But apart from all this, it is not at all proved, in my opinion, that
the Defendant Bormann is intentionally evading trial as long as the
possibility exists that the defendant is dead. It is true that the
Charter does not recognize such an assumption in the proceedings against
a defendant who cannot be found. The Charter is very reserved on this
particular point and I have already stated that I am convinced that
following the hearing of the witness Kempka the Tribunal should once
more examine very carefully whether they should exercise their right in
this special case of the Defendant Bormann. Considering the finality of
the verdict it seems to me fair and just in the case of Bormann to
consider the general legal principle of all civilized countries, by
which a defendant must be guaranteed a hearing even if only after his
arrest. Thus, by suspending the proceedings now, one would avoid
creating accomplished facts so long as it is still possible that
Bormann’s absence can be excused.
May I point out in this respect that in the second part of Article 12 of
the Charter, the Tribunal refers expressly to the interests of justice
that they should consider, in examining the question, whether they
intend to take proceedings in absentia for any other reason than that
the defendant cannot be found. These interests of justice are not
unilateral and are not directed against the defendant only. True justice
is always universal and demands in all legal systems of the world that,
as far as that is possible, the interests of the defendant shall be
protected as well.
Owing to the state of health of the Defendant Krupp, the Tribunal has
already exercised their right not to try a person in absentia. Even if
this last-mentioned case cannot be compared with that of the Defendant
Bormann, this decision should be given consideration in the present
instance, too.
Having in view the peculiar character of the case and the testimony of
the witness Kempka, it can by no means be considered as proved that the
Defendant Bormann is deliberately absenting himself from the Tribunal,
for in whatever way the matter is viewed one cannot dismiss the
possibility that—even if he had been rescued and had not fallen into
the hands of the Allies—he may have suffered such serious lasting
injury that he is neither physically nor mentally able to surrender
himself to the Tribunal. In my considered opinion it is precisely for
this reason that the Tribunal in the interests of true justice should
suspend proceedings against the Defendant Bormann even now.
Such a decision, however, is also justified according to the second
principle, which was formulated by the Russian law, namely, that
proceedings shall, as a rule, be admitted only if the facts of the case
no longer leave any room for doubt.
The Defendant Bormann is absent. He has not been able to defend himself
against the charges for which he is indicted. He has not been able to
give me any information, neither could I find any witnesses who know the
circumstances sufficiently well, and who would have been able to
disclose to me any exonerating evidence concerning the accusations made.
During the course of these long proceedings the man Bormann and his
activity have remained shrouded in that obscurity in which the
defendant, by his predisposition, held himself during his lifetime. The
charges which many codefendants have made against him, perhaps for very
special reasons, and obviously in order to assist their own defense and
exonerate themselves, cannot for reasons of fairness be taken as the
basis for a judicial decision. The Prosecution has stated on more than
one occasion through its representatives that the defendants would seek
to throw the chief blame upon dead or absent men for the acts which are
now being judged by the Tribunal. In their pleadings some of my
colleagues have followed these tactics of the defendants. Perhaps it was
right to do this. I cannot judge. Besides, I have no authority to form a
judgment.
But nobody knows what the Defendant Bormann could have said in answer to
these men if he had been present. Perhaps he would have been able to
show that all his activities were not the cause of the happenings
arraigned in the Indictment, also that he did not possess the influence
which is imputed to him as the Secretary of the Führer and of the Party.
It has always been a well-known fact that secretaries and chiefs of
central chancelleries, in the same way as valets to princes in the times
of absolutism, were attributed a considerable influence upon their
superiors and lords, for in the nature of things everything which can
only be handled officially must pass through the hands of this
secretary. But what in a modern state can evade the Moloch of
bureaucracy?
The document book and the trial brief presented by the Prosecution
contain no conclusive evidence that in the incriminating events and
measures Bormann personally had any effective and outstanding influence
on the actions and dealings of the Third Reich, of the NSDAP, or even of
Hitler himself nor of how strong that influence had become.
In the comments on the Bormann decree, reproduced in Volume II of the
official collection of _Verfügungen, Anordnungen und Bekanntgaben der
Parteikanzlei_, Page 228, submitted as Document Number Bormann-11 in my
document book, it is stated that the Party Chancellery was an agency of
Hitler, which he used for directing the NSDAP. Stress is laid on the
fact that on 12 May 1941 Hitler again assumed full and complete
responsibility for the leadership of the Party. The Chief of the Party
Chancellery, at that time Bormann, had been charged with keeping Hitler
continually informed about the work of the Party and to bring to his
knowledge any circumstances about which he should know when making
decisions in Party affairs. This had to be done according to Hitler’s
basic directives, and the Chief of the Party reserved for himself the
right to determine these, especially as far as political affairs were
concerned.
Thus it followed that the Party Chancellery was the central chancellery
for matters concerning the home policy of the Reich leadership, and
through this channel all suggestions and information from below were
passed upward to Hitler and all directives from Hitler were passed down
through it to the lower levels.
THE PRESIDENT: The Tribunal will adjourn.
[_The Tribunal recessed until 1400 hours._]
_Afternoon Session_
DR. BERGOLD: It is true that a man in a position such as I described to
you this morning can have great influence, if there is a man at the top
who can be easily influenced; but it is equally correct to say that a
man in such an office can play a purely formal role as the head of a
liaison agency, if at the top there is a dictatorial autocrat who cannot
be influenced and if the chief of the office has no special ambition nor
any special abilities.
The proceedings which have been held for many months here have shown
which of the two alternatives is more likely. It is obvious that, seen
from lower levels, the head of the Chancellery would appear influential
even in the case of the second alternative, because everything goes
through his hands and because any blame arising from subordinates passes
through his agency and because all mistakes which arise in the vicinity,
committed by other officials, are reported there. These officials and
subordinates, however high a rank they may have held, and even though in
part they may have feared the chief of the Party Chancellery—perhaps
indeed only for reasons originating in their personality or their
errors—these are not the right people to enlighten us as to which of
the two alternatives described is the proper one. As long as Bormann
does not appear and is not heard, personally, the true part he played
remains obscure. Nobody, not even the High Tribunal, could ever pass
just sentence. All the facts remain dubious. They remain dubious even in
the individual points. I would like to demonstrate this by just a few
examples.
My esteemed colleague of the Defense, Dr. Thoma, has stated that Bormann
prevented the Defendant Rosenberg from following his policy. To make his
point he referred to the memorandum of Dr. Markull, submitted as R-36.
But this document is nothing more than a comment on an unknown and
unproduced Bormann document. Markull declares _expressis verbis_ that he
put Bormann’s formulations into the language of a simple member of the
German civil service and presented them more pointedly. Only Bormann
could enlighten us in this case and tell us whether he wished his
writing to be understood in this way at all or whether Markull twisted
the meaning and sense of Bormann’s words, so that only Bormann could
disclose whether this writing, like almost all the Bormann documents
submitted, did not simply transmit the utterance of another Reichsleiter
or of Hitler. So this very case, too, seems altogether doubtful. An
explanation can hardly be expected. Furthermore, it must be pointed out
that almost all the documents which the Prosecution have gathered in
their document book are, in general, mere reproductions and publications
of a Hitler decree or a Hitler instruction. Bormann transmitted these
instructions to the subordinate agencies with an accompanying letter in
order to inform the agencies concerned. This is an activity which, as
office work, has to be done even under the most reprehensible and
tyrannical despotism; how much more so in a modern state like the
National Socialist Reich. Someone has to forward all the instructions
and orders to the subordinate agencies; that is a purely formal
activity. It is immaterial whether it is done by a plain office
assistant or by a brilliant Reichsleiter.
The official transmission of such instructions—I mention for example
the Documents Number 069-PS, 1950-PS, 656-PS, 058-PS, 205-PS, and even
the famous Document Number 057-PS—can only be considered a transmission
of directives and opinions of Hitler; from such a method of transmission
nobody can draw the conclusion that the forwarding party had any
influence on the decrees, orders, and decisions. It is possible, but it
has not been proved with certainty.
But before a sentence is passed, this question of influence should be
entirely clarified. Because even if one could see any offense in the
transmission of an order, according to Chancellery routine—whereby one
would even have to sentence the women who wrote such orders on the
typewriter—the just verdict would have to distinguish between the
extent and severity of the punishment for such clerical work; and that
should fall upon a man whose collaboration was a decisive factor in
causing such orders and decisions and who by his influence and advice
led the chief of the state to issue them. All this is not clear in
Bormann’s case and continues to be uncertain. The empty statements of
the codefendants, whose motives can never be entirely unveiled, to the
effect that Bormann exercised great, even diabolic, influence are no
proof.
The other documents of the Prosecution only prove that Bormann, in
keeping with the decree of 29 May 1941, Document Number 2099-PS, and the
decree of 24 January 1942, Document Number 2100-PS, arranged for an
exchange of correspondence between the individual Reichsleiter and
forwarded their desires and suggestions. As an example I mention
Documents Number 056-PS, 061-PS, 072-PS, 205-PS, and 656-PS. Nobody can
derive with certainty from these activities as a go-between, which were
necessary from the administrative standpoint, the extent and true nature
of Bormann’s influence.
Further documents show that Bormann very often served as a mere
stenographer, taking the necessary notes during Hitler’s discussions
with some of the defendants. This is proved by Document Number L-221,
concerning the annexation of the Eastern Territories, and the Russian
Document Number USSR-172. But in any case such documents do not make
clear whether and in what way Bormann influenced the policies and the
measures of the Third Reich during such meetings. According to all
rules, a stenographer has no influence at all. He only fulfills an
automatic function.
I would not like to be misunderstood here. Far be it from me to dispute
the fact that Bormann occupied quite an important position within the
leadership of the Third Reich. But no clear view has emerged during this
Trial as to Bormann’s actual importance or to what extent it was
exaggerated and vilified by the bad conscience of third parties and,
finally, of what his influence actually consisted. Statements of the
other defendants, which were made for their own defense, do not
constitute relevant evidence. At any rate the document book of the
Prosecution contains, almost exclusively, documents like those I have
just examined more closely. Bormann scrupulously did only what was legal
in Germany; this was revealed in the documents I submitted—for instance
Documents Number Bormann-2, 3, 5, 7—in which he repeatedly pointed out
to Party offices that no illegal action against Jews was permitted.
It is characteristic of Bormann’s case that measures against Jews could
not be proved against him personally. He never did more than forward
such instructions, divulge, or publish them, as this was prescribed by
law and as it followed from his position as Party secretary. Even the
big conference of 12 November 1938, which was held under the
chairmanship of Herr Göring and from which emanated a series of laws
against the Jews, can only be brought into relationship to Bormann
insofar as Bormann forwarded to Göring Hitler’s instruction ordering
that such a conference be held. In any case it has not been made clear
at all what influence Bormann himself had on these questions. But how
can a just and fair Tribunal determine the extent of appropriate
punishment, if the part played, if the participation of an individual
defendant in an offense, is not clearly established? Nobody can say then
that there is no doubt about the circumstances of the case.
At first glance it seems to be most certainly proved by the document
book of the Prosecution that Bormann was one of the most zealous in the
fight against the Christian churches. Most of the documents quoted in
the trial brief referred to this point. It is certainly correct to say
that Bormann, because of his philosophy, was a violent opponent of the
Christian doctrine. But such attitude of mind, in itself, is neither an
offense nor a crime before mankind, which embraces so many different
conceptions of the world and which will perhaps give birth to many more.
In modern times there are countless convinced atheists. In other
countries of the world, too, there are officially recognized
organizations which oppose the Christian doctrine; and at the turn of
our century there were big associations in many countries which raised
pure materialism to a philosophical system and openly proclaimed the
negation of spiritual facts and truths. No one can be punished for
wishing to teach others the precepts of his ideology or for wanting to
convert them to his point of view. The modern world still recalls the
horrors of the Inquisition.
Therefore Bormann could only be punished if it were proved that he
participated in a real religious persecution and not merely in an
ideological struggle.
In my opinion the two most important pieces of documentary evidence
which the Prosecution have produced against Bormann—namely, Documents
Number D-75 and 098-PS—do not show that the Defendant Martin Bormann on
his own authority undertook anything against the churches as religious
institutions. The gist of Document Number D-75 is contained in the
sentence which says that from the incompatibility between National
Socialist and Christian ideology it must be deduced that any
strengthening of existing Christian denominations and any promotion of
new ones is to be avoided by the Party. It is of no importance for what
pressing reasons Bormann came to such a conclusion at the end of his
letter. It goes without saying that failure to support a religious
concept which one opposes on philosophical grounds does not constitute
religious persecution. Nobody is obliged to support a religious view. It
is not fair to consider his antireligious attitude and to disregard the
fact that nothing came of it.
Furthermore, it is important in this connection to note that we received
only one copy of this document, a copy which a Protestant minister by
the name of Eichholz made out for himself. Whether the reproduction of
the contents of Bormann’s statement in this document is correct in every
detail has not at all been proved. In any case the document in this form
does not constitute authentic evidence.
In Document Number 098-PS, which may be recognized as being authentic,
Bormann takes a very definite stand indeed against the Church. It ends,
however—and this is the only fact which should be considered for the
verdict—by saying that no National Socialist teacher should be
reproached for teaching Christian religion and even that in such a case
the original text of the Bible should be used; any new interpretation
of, comment on, or analysis of the text of the Bible is to be avoided.
Therefore Bormann, despite his previous philosophical attack upon the
Church, takes here the legal standpoint that Christian dogma may be
freely propagated. Could a more loyal action ever be expected of such a
strong opponent of a doctrine?
The remaining documentary evidence does not reveal any real persecution
either. The fact that Bormann, on Hitler’s orders, prohibited the
admission of priests or of members of certain religious associations to
the Party and that, on Hitler’s order, he forbade priests to be
appointed to leading positions in the Party, in order to prevent
dissension, is not religious persecution. The fact that during the war
he demanded that the Church make the same financial sacrifices as other
state institutions does not represent a criminal act undertaken for
religious reasons. That, while closing many lay institutions in order to
make use of the human reserves of the nation, he tried to close down
religious institutions too; that, considering the limitation on the
number of copies and number of pages of lay publications, he wished
Church publications to be limited also, does not come under the
provisions of Article 6 of the Charter. It is true that in this respect
he followed, among other things, his anticlerical attitude. But when,
aside from this, the same measures were taken in Germany against other
institutions and other publications—measures which were supposed to be
only temporary war measures—one cannot speak of actual religious
persecution. That Bormann might have been coresponsible for the
persecution of priests has not even been submitted or proved at all. All
documents indicate that Bormann always adhered to the legal stipulations
in effect; and since he desired to comply in every way with Hitler’s
orders, it is to be assumed that he observed Hitler’s decree at the
beginning of the war which directed that all measures against the Church
be discontinued.
Therefore it may be said in conclusion that this matter, too, cannot be
really cleared up despite the numerous documents presented. Documents
alone do not suffice to dissipate all doubts on the case. Especially
with respect to the importance and weight of Bormann’s share in measures
aimed at persecution of the Church, it seems necessary to determine
Bormann’s personal responsibility. This fact therefore also remains
somewhat obscure. A basis for a just determination of the punishment to
be inflicted cannot be established.
I shall not take up the time of the High Tribunal by bringing up further
details. I think that the indications I have just given are sufficient
to show that even the documents presented by the Prosecution prove, in
any case, only one thing with certainty—namely, that Bormann in his
capacity as chief of the Party Chancellery held “as ordered by the law”
an intermediary position in official and secretarial communication
between the head of the Reich and the subordinate agencies and among
those subordinate agencies themselves. Anything else is only an
assumption which has not been definitely proved—in any case not with
the certainty necessary to render a just verdict _in absentia_ and
without hearing the defendant and to determine the severity of the
punishment. Unfortunately, a legend has already been woven around
Bormann’s personality, his activity, and his survival. But for the sober
judgment of jurists legends are not a valid basis for a verdict free
from any doubt.
In view of the innovation created by the Charter—completely novel in
the history of law of all times and all nations—in passing a final,
irreversible sentence upon an absent defendant, I beg the High Tribunal
to make use of their right to adopt such a procedure only after having
considered the hitherto existing legal concepts and, especially when
examining the case, to consider the prerequisites set down in a precise
manner by Russian law. I therefore expressly propose that the Tribunal
decide either to suspend the proceedings against the Defendant Bormann
because of his proved death, or to postpone his trial until he is
personally heard and can personally state his case and that the Tribunal
make no use of its right according to Article 12.
THE PRESIDENT: I call on Dr. Kubuschok on behalf of the Defendant Von
Papen.
DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): Before beginning
my final plea I should like to submit to the Tribunal a few completed
interrogatories which have since been received and of which some have
also been translated. Since I refer to them in my final plea, I should
like to submit them now.
THE PRESIDENT: Yes, Dr. Kubuschok.
DR. KUBUSCHOK: First of all I submit the completed interrogatory which
has been received from the witness Tschirschky as Document Number
Papen-103. I now submit a copy in English and in French.
On this occasion may I draw the attention of the Tribunal to the fact
that Tschirschky was the secretary of the Defendant Von Papen who, at
the time when he was in Vienna, was called to Berlin by the Gestapo and
then emigrated to Great Britain, where he has presumably obtained
British citizenship by now. The correspondence with reference to this
Tschirschky case was the subject of the cross-examination. With
reference to the numerous questions dealing with Papen’s
vice-chancellorship and his activities in Vienna, the witness has
expressed himself in great detail and in all cases answered in the
affirmative.
Presumably the Tribunal do not want me to discuss these questions in
detail now. The copies submitted to the Tribunal will be sufficient. But
perhaps I could quote the last paragraph from Question 1:
“Regarding his relation to the NSDAP, I can say that during the
time when I was working with Von Papen, Von Papen’s attitude was
a negative and, in fact, a hostile one in every respect.”
It appears important to me to refer to the answer to Question 2, which
deals with the safety measures during the formation of the Government on
30 January ...
THE PRESIDENT: Dr. Kubuschok, the Tribunal does not wish you to comment
twice on the interrogatory. If you want to comment upon it to the Court
in your speech, well and good. You comment now as you put it in, and
then presumably you may make some observation later on in your speech.
DR. KUBUSCHOK: Mr. President, during the plea I will refer only very
briefly to the special questions answered in this interrogatory. On the
whole I do not refer to them in my plea. In my plea I merely give a
summary of the answers, but I do not deal with the questions themselves
again.
THE PRESIDENT: Dr. Kubuschok, the Tribunal thinks the appropriate course
for you to take is to put in these interrogatories now, and when you
deal with them in your speech, you can refer to any particular passage
that you want.
DR. KUBUSCHOK: Yes. In its present written form the reference is very
brief and does not even consist of a sentence. Besides ...
THE PRESIDENT: When you get to it ...
DR. KUBUSCHOK: Shall I read it then?
THE PRESIDENT: Yes.
DR. KUBUSCHOK: Very well. I have submitted the completed interrogatory
of Tschirschky as Document Number Papen-103 and then the completed
interrogatory of Archbishop Gröber as Document Number Papen-104. Gröber
has to do with the conclusion of the Concordat. I am also submitting the
interrogatory of Archbishop Roncalli as Document Number Papen-105, and
finally, the interrogatory from the Polish Ambassador Jan Gavronski,
which is Document Number Papen-106. These are documents which I received
already translated. In addition I would like to ask the Tribunal to
allow me another document, which in spite of all my efforts I have not
yet been able to have translated. It is an affidavit from a foreign
correspondent, Rademacher von Unna. He had transmitted in a letter to my
colleague Dr. Dix, on 29 May 1946, an affidavit for Papen which arrived
here about 3 weeks ago. Of chief interest in this affidavit is one
paragraph. I should be most grateful to the Tribunal if I could read the
paragraph so that the Tribunal would be in a position to see if this
affidavit is relevant, and if so, to permit me to submit this document.
Then I would submit the original, and the translation could be supplied
as soon as completed.
THE PRESIDENT: You have not shown it to the Prosecution yet, have you?
DR. KUBUSCHOK: I had submitted the German text at the time, but now it
has been in the Translation Division for 2 weeks, and I have not been
able to get it yet. I have already mentioned the document during the
last session when we discussed evidence, and the Tribunal informed me
that I should submit it on another occasion, when the matter came up for
discussion.
THE PRESIDENT: Is it long?
DR. KUBUSCHOK: It is not long. The document is a page and a half, and I
will read a paragraph which is shorter than half a page. Only that
paragraph is of real importance to me.
THE PRESIDENT: Does the Prosecution object to this?
MAJOR JONES: My Lord, I have not seen a copy of this document, but we
have no objection in principle; I have not seen the document myself, and
it is a little difficult to give any opinion as to whether we would
object, if we had the opportunity of examining it.
THE PRESIDENT: Dr. Kubuschok, perhaps the best would be for you to read
the document and the Prosecution can move to strike it out of the record
if they object to it.
MAJOR JONES: Yes, My Lord. That would be quite a convenient course for
the Prosecution, My Lord.
DR. KUBUSCHOK: I shall read from that affidavit from Rademacher von
Unna, dated 29 May 1946, which was executed in Milan, half of the
penultimate paragraph. The executor of the affidavit in this
communication is referring to a statement made by Von Papen which is
worded as follows:
“He, Papen, would, however, not allow himself to be deterred by
anybody from carrying out his mission in the way he himself
understood it: to be an intermediary and peacemaker; and
therefore he would show anyone the door who might wish to misuse
him in Austria for obscure purposes.
“In this connection it is worth mentioning that a member of the
Austrian Government, a state secretary whose name I have
forgotten, was making efforts to establish personal, but secret,
contact with the German Ambassador in order to offer him his
services for the German cause. Herr Von Papen turned down this
offer, giving as his reason the fact that he refused to
participate in conspiracies which were directed against the
official policies of the Ballhausplatz. Up to now he had
attempted to co-operate openly and loyally with the Federal
Government; and he, on his part, would not use any other means.”
As an explanation I should like to add that the member of the Austrian
Government who is mentioned here is Neustädter-Stürmer.
Your Lordship, may it please the Tribunal, Papen is accused of taking
part in a conspiracy to commit a crime against peace. With respect to
time the Prosecution limit the discussions of the facts of the case to
the termination of his activity in Vienna. They admit that as far as the
subsequent period is concerned, especially during his activity as
Ambassador in Ankara, no indications were found to support the
accusation. In other words, according to this viewpoint Papen is said to
have taken part in the preparatory actions for unleashing a war of
aggression—which actions the Prosecution have placed very far back
chronologically—but he is not said to have actively participated in the
immediate preparations and in the crime against peace itself.
The Prosecution deal with Papen’s activity as Reich Chancellor in the
last pre-Nazi Cabinet, with the part he played as Vice Chancellor in
Hitler’s Cabinet until 30 June 1934, and with his activity as Minister
in Vienna. They were faced with the task of proving that during this
period preparatory actions for a crime against peace actually took
place, and that Papen, in full recognition of these aims, collaborated
in the preparations. Since the counts of the Indictment deal with a
field of activity which is in itself a legal one, and since the criminal
element cannot be introduced into the individual acts except in the
direction of their aims, judgment of the Papen case lies essentially in
the subjective sphere. The Prosecution are faced with the fact that
Papen’s own views, which often came to light, and the policy which he
actually pursued cannot be made to agree with the interpretation given
by them. Therefore, they seize upon the premise that he is a
double-faced opportunist who has sacrificed his real sentiments, or
those displayed, to the existing conditions of the day and to Hitler’s
will.
In consequence, it must be the task of the defense to elucidate his
personality in order to prove that Papen’s actions and statements follow
a uniform, consistent line and that his entire attitude _de facto_ was
such as to preclude connecting him with the offenses of the Charter and
that those of his actions which are under discussion must have been
undertaken in pursuit of other aims than those which the Prosecution
think they can recognize. Furthermore, the defense will outline Papen’s
entire political activity with regard to its legality; and within the
framework of this activity it will deal with the actions considered
punishable by the Prosecution and will finally submit counterevidence
showing that he actively worked against a political development as
represented by the facts brought forward in this Indictment.
We shall arrive here at a just evaluation only if the question of
political expediency and correctness is left out of discussion and if we
accept the politician as he reveals himself to us with the opinions and
attitudes derived from heritage and tradition. Moreover, an essential
element in judging fairly will be the necessity of eliminating what we
have learned during the Trial concerning later years and this later
period. We shall have to direct our consideration only to the time of
the actions themselves, and only then shall we obtain a clear picture of
what Papen could see and expect at that time.
The Prosecution gives the date of Papen’s initial participation in the
conspiracy as 1 June 1932, the date of his appointment as Reich
Chancellor. However, it does not answer the question as to what
circumstances are to indicate to us Papen’s entry into the clique of
conspirators alleged to have been already in existence. Indeed, it is
impossible to give an answer to this. Papen’s activity as Reich
Chancellor cannot be regarded in any way as activity having to do with a
Hitler conspiracy. The idea behind the formation of the Cabinet, the
entire leadership of the Government during his chancellorship, and
finally his departure from office are too clear to allow us to read into
them a promotion of National Socialist ideas, a paving of the way for
National Socialism, or even participation in a conspiracy allegedly
already in existence. The Papen Cabinet was formed at the time of an
unusual economic, political, and parliamentary depression. Unusual means
had already become necessary under the preceding Cabinet. They were to
be continued now, in part on entirely new lines. In times of unusual
crises a parliamentary legislative body probably always offers certain
difficulties. Therefore, even in the days of Brüning’s Cabinet, the
Reichstag was practically completely excluded from legislation which the
Emergency Powers Law gave to the Reich President. It was now thought
necessary to work along completely new lines. A cabinet of men who were
experts in their own field but who were not bound to any party was to do
away with these difficulties. Therefore the new Cabinet was
intentionally created without the collaboration of parties. The task
with which the new Government was faced and the program necessarily
resulting from the conditions of the time brought with them, of
necessity, an attitude hostile to National Socialism. To strike at the
roots of the depression, government policy would have had to attack the
causes for the growth of the National Socialist movement. These
consisted of discontent with economic conditions and the political
situation abroad.
But on the other hand one could think of doing peaceful reconstructive
work of any lasting benefit only if some _modus vivendi_ could be found
with the National Socialist Party. The Party had not only constitutional
power practically to paralyze every government activity; but with
nothing more than influence on the masses by its propaganda it promised
amelioration of domestic political conditions, the first prerequisite
for far-reaching economic measures. Papen was faced with this situation
in the last days of May 1932, when to his complete surprise he was
commissioned by Hindenburg to form a presidential cabinet.
With regard to his governmental activity, I wish to limit myself in my
defense against the Indictment to the following details: The formation
of the Cabinet of 1 June 1932 took place contrary to previous
parliamentary custom without any previous consultation with the National
Socialist Party. Epoch-making new economic laws subsidized by
unprecedented financial appropriations were decreed in order to combat
unemployment and at the same time to stifle at its source the seemingly
invincible growth of the National Socialist Party. The aim of the new
economic measures and the limited financial possibilities demanded
application of these measures over a long period of time. The labor
market was to be stimulated by the use of funds to consist of the future
savings in public taxes if the measures were successful. The economic
laws were based only on this exploitation of financial possibilities. No
use was made of unproductive public work projects intentionally, nor was
the labor market artificially stimulated by armament orders. These
long-range economic measures, which could be successful only during an
uninterrupted government policy, made their acceptance by the Reichstag
appear especially urgent.
In the field of foreign politics Papen continued the course which the
Brüning Cabinet had pursued; and in so doing he placed particular
emphasis on these points of honor, the recognition of which would have
brought no damage to the other parties of the treaty but which would
have taken from the National Socialist Party a powerful propaganda
weapon to influence the masses.
At the conference of Lausanne Papen openly explained the domestic
political situation in Germany. He pointed out that ideological points
mainly were involved, the nonrealization of which would give the
National Socialists the impetus they desired. He explicitly emphasized
that his efforts were the last attempt of a nonradical Cabinet and that
in the event his policy failed only National Socialism would profit from
it.
Papen strove to make the National Socialist Party take a share of the
responsibility without wishing to entrust to it the key position of
Reich Chancellor—a share in the responsibility which would have forced
this party of negative politics to recognize actual conditions and which
would thus have eliminated its attractive demagogic propaganda.
These first attempts by Papen to bring about the participation of the
National Socialist movement in the work of government are regarded by
the Prosecution as paving the way for National Socialism. However, this
is actually nothing but an attempt to find a basis of some kind for
practical governmental work, an attempt which had to take into account
the experience of the Brüning Cabinet and the development of the
National Socialist Party.
The fact could not be disregarded that already the Reich presidential
election in March 1932 had brought Hitler 36.8 percent of all the votes.
If one takes into consideration that Hindenburg was the opposing
candidate and that Hindenburg’s personality certainly caused many
followers of the NSDAP to vote in this special case not in accordance
with Party directives, the fact follows that a heretofore hardly known
opposition party had arisen which outnumbered by far all the other
parties and the antagonism of which was able to paralyze _a priori_ any
governmental activity. Hence followed, what was a foregone conclusion
for Papen, the endeavor to get this party out of its status as an
opposition party. This decision would be all the easier if the firm
conviction were there that a share in the responsibility of government
would turn the opposition party from its radical course and above all
curb it considerably in its further development.
The best evaluation of Papen’s governmental activity, seen from the
standpoint of the National Socialists, comes from the fact that it was
the National Socialist Party which opposed Papen’s decisive economic
legislation and with its vote of no confidence—pronounced jointly with
the Communist Party—brought about the end of the Papen Cabinet. The
subsequent negotiations of the still acting Reich Chancellor, especially
the events of 1 and 2 December 1932, show again his unequivocal attitude
toward the NSDAP.
Papen proposed a violation of the Constitution to Hindenburg. He wished
to exhaust this last means in order to avoid a Hitler chancellorship.
Schleicher opposed this solution on the grounds that in the event of a
civil war, which might then break out, the Government would not remain
master of the situation with the police and military forces at its
disposal. In the light of these clear historical events, the attempt of
the Prosecution to give a different interpretation to the facts and to
these clearly recognizable unequivocal motives is of little avail.
What then are the points which the Prosecution believe that they can
marshal in the face of this?
For one thing, Papen in his first negotiation with Hitler, and a short
time after forming his Government, consented to rescind the order
prohibiting the wearing of uniforms, a measure which, even if it had
merely been taken as a political deal to have the Cabinet accepted, is
quite natural according to parliamentary rules. Not only was the NSDAP
the strongest party in the Reichstag, but due in particular to its
general political influence in public life it constituted an instrument
of power of the first order. Therefore, it could not _a priori_ be
driven into a state of opposition if it was intended at all to pursue a
realistic policy of long duration and seriously to try to overcome the
emergency through a revolutionary economic program.
The repeal of the prohibition of uniforms was based also on more basic
reasons, since it was a one-sided prohibition against a single party;
the opposing organizations were not limited in this respect and the
acknowledgment of the law of parity here could only eliminate dangerous
propaganda material. The repeal of the prohibition of uniforms was
furthermore by no means the announcement of a license for political acts
of violence. It was reasonably to be expected that the warning of the
Reich President, announced with the proclamation of the decree, that
acts of violence resulting from the decree would bring about an
immediate prohibition of the organizations as such, would prevent just
such pernicious results.
The claim of the Prosecution that the repeal of the prohibition
concerning uniforms was the main cause of the increase in the number of
National Socialist seats at the July election is completely at variance
with the facts. I refer to the already-mentioned result of the Reich
presidential election of March 1932, at which the real situation did not
even become completely manifest because of the fact that Hindenburg was
the opposing candidate. The election of 21 July 1932 brought 13,700,000
National Socialist votes, whereas in the Reich presidential election of
10 March 1932 Hitler had already received 13,400,000 votes. There are no
grounds whatsoever for assuming that the appearance of uniforms, which,
incidentally, had been replaced earlier by camouflage standardized
clothing even during the period of prohibition, might have had any
determining influence on the outcome of the elections.
Much more important and in a negative sense more decisive for the
outcome of the elections was certainly the general prohibition of
political parades and demonstrations proclaimed by the Papen Cabinet at
the beginning of the election campaign. Public meetings and political
parades are the most important expedient for a demagogically led party.
To lose this possibility just before the election was undoubtedly a much
greater loss for the NSDAP than the previous advantages it had received
in the form of permission to wear uniforms.
In the letter of 13 November 1932 in which Papen again tries to induce
Hitler to participate in the Government, the Prosecution see an effort,
undignified in its form, and blameworthy in its essence, to smooth the
path of National Socialism to power. They forget that Papen conducted
the November elections in sharp opposition to the NSDAP, because he
tried to remove the Party from the key position in which it could not,
without Hitler, numerically form a majority with the parties from the
Social Democrats to the parties of the extreme right. They forget that
this result had not been achieved, that the key position even with 196
seats remained with Hitler and that, therefore, it was necessary to make
another attempt to win Hitler over for a presidential cabinet under some
conservative chancellor. They overlook in this respect that Papen’s
proposals here again had the definite aim of excluding the NSDAP from
the Reich chancellorship. For National Socialism a cabinet under a
conservative politician, who would have had to determine the principles
of the policy in line with the Constitution, would only have permitted
the Party’s influence to be felt in this or that department; but in
return for this influence it would have been obliged to share the
responsibility through its participation in the government. Seen in
retrospect from the standpoint of the opposition to National Socialism
one could indeed have welcomed nothing more enthusiastically than just
such a participation by the Party in the government, limited in
influence and sharing the responsibility. The end of an opposition
policy which was so tremendously favorable for propaganda purposes would
undoubtedly have stopped the growth of the National Socialist movement
and the conversion of its radical elements.
To write the letter in a polite form was the official duty of the Reich
Chancellor toward the leader of the strongest party in the Reichstag. It
is a foregone conclusion that, in using this form and because of the
purpose of the letter, the writer does not refer to negative points only
but also to those positive elements which could lead to co-operation in
the Government.
In order to be able to find the least indication during the period of
Papen’s Reich chancellorship of his sympathy with the ideas of National
Socialism, the Prosecution have seen in the temporary elimination of the
Prussian Government by the decree of 20 July 1932 intentions which in no
way could pass the test of an objective examination.
The so-called _coup d’état_ of 20 July, as the Prosecution term the
execution of the decree of 20 July 1932, had not the slightest thing to
do with promoting the National Socialists. In the opinion of the Reich
Cabinet and according to the decisive judgment of Reich President Von
Hindenburg, domestic political needs required that the open toleration
of Communist acts of terror by the Prussian Cabinet in office be brought
to an end. Hindenburg drew the logical conclusion and issued the
Emergency Decree of 20 July 1932. By a decision of the then still
independent Reich Supreme Court, it was determined that this decree with
regard to constitutional law was permissible within the framework of
state political necessities.
If in carrying out this decree the request was indeed actually conveyed
by police authorities to the Minister of the Interior, who had been
suspended, that he leave his offices, the word _coup d’état_ lends a
meaning to this measure which goes far beyond what actually happened.
Also in considering the effects of this measure any assumption that here
the way was paved for National Socialism is not justified by any facts.
The appointed Reich Commissioner Bracht belonged to the Center Party.
The key position of police president in Berlin was entrusted to a man on
whom the hitherto existing Braun Cabinet had previously conferred the
office of police president in Essen. Briefly, the result of the change
was only that, on the one hand, an effective co-operation was now
assured with the Reich authorities and, on the other hand, new people
filled some political positions which up to now had been the almost
exclusive monopoly of the Social Democrat Party to an extent which, from
the point of view of parity, could no longer be justified. That in
filling these positions the National Socialists were passed over was a
charge which was made against Papen time and again by the National
Socialists.
Consequently, Papen’s entire term of office in the Government
constitutes a clear line of realistic politics which show that, on the
one hand, he did not relinquish the pilot wheel in carrying out
necessary measures, especially economic ones, while, on the other hand,
he tried to get a numerically large opposition party to collaborate.
Papen’s attitude toward the NSDAP became even more manifest after he had
been asked by the Reich President, late in November 1932, to collaborate
in the efforts to form a new cabinet.
In this he showed he had the courage to go to the extreme. Realizing
that it was impossible to go on with a non-National-Socialist
Government, according to parliamentary principles, he submitted to the
Reich President the proposal to rule with the aid of armed force, even
if he thus caused a violation of the Constitution and risked causing a
civil war.
It is just as difficult to reconcile oneself with such a proposal, when
one adheres to thinking along lines of constitutional law, as it is
impossible to overlook in retrospect that the proposed temporary
violation of the Constitution was probably the only way to avoid the
solution which then became necessary on 30 January 1933.
Any other temporary solution could not have had a satisfactory result.
Sooner or later the opposition party would have forced the resignation
of any non-National-Socialist cabinet. With that political unrest with
its consequences on the entire economic life would have become a latent
state—a state of affairs, which, through its repercussions, would only
strengthen the National Socialist movement to such an extent that in the
end the result would have been the fulfillment of its entire
totalitarian claim for assuming unlimited power.
The part played by Papen in the formation of the Cabinet of 30 January
1933 might in itself be disregarded. It is sufficient to be aware of the
fact that all endeavors to bring about a parliamentary government
without Hitler could not succeed from a purely numerical standpoint, and
that such a parliamentary solution with Hitler was wrecked by his
opposition. A measure born out of political and constitutional necessity
cannot, according to the Indictment, be considered as evidence of
intentional planning of a crime in the sense of the Charter. The purpose
of this count of the Indictment must be considered. By maintaining all
parliamentary rules Hindenburg, in his capacity as chief of State,
appoints a Government the head of which is the leader of the strongest
party. This Government, when presented before the Reichstag, finds an
overwhelming majority. That which Papen is accused of, the knowledge of
the activities of the National Socialist Party in the past, holds true
to the same extent also for the other participants, for Hindenburg and
all consenting members of the Reichstag. The reproach leveled against
Papen thus includes also an accusation against Hindenburg and the entire
consenting Reichstag. For this reason alone probably the first attempt
to include in an Indictment a self-evident, constitutional procedure of
a sovereign state must fail.
If despite this fact I go into the events which occurred before the
formation of the Government, it is only in order to show clearly the
unequivocal standpoint of Papen, who on the one hand did not wish to
close his eyes to the real facts, but on the other hand desired to
undertake everything in order to prevent the danger of an uncontrollable
development of this reorganization. The Prosecution consider the
Hitler-Papen meeting at the home of Schröder on 4 January as being the
beginning of the efforts to form the Government of 30 January 1933. As a
matter of fact the meeting at Schröder’s was nothing else than an
exchange of ideas on the existing situation during which Papen and
Hitler maintained their previous opinions and Papen pointed out that
Hindenburg, owing to the apprehensions which he had expressed, would in
no case agree to Hitler’s taking over the position of Reich Chancellor.
Hitler would have to accept the position of Vice Chancellor, since
Hindenburg took the standpoint that further development would take place
after he had stood the test of time.
This meeting in Cologne took place upon Hitler’s request. I refer in
this instance to Schröder’s communiqué published by the press, which I
submitted as Defense Document Number Papen-9, and which I erroneously
indicated during the cross-examination as being a joint communiqué
issued by Papen and Schröder. Schröder established in it that he alone
took the first step toward having this meeting.
That this meeting was in no way the basis for the formation of the
Government of 30 January is obvious from the fact that the discussion
was immediately reported by Papen to Schleicher and Hindenburg and that
subsequently until 22 January Papen had nothing to do with the solution
of the problem of a new government. Schleicher as well as Hindenburg
endeavored to obtain parliamentary support for the Schleicher Cabinet
through negotiations with the leaders of the parties, efforts which
failed, however, due to the pressure of the political facts. The main
effort was to split up the National Socialist Party by inviting the
collaboration of the Strasser wing in the Government. These efforts
failed when Hitler’s position became so strong after the result of the
elections in Lippe that he regained absolute control over the Party
against all attempts to split it up. The outcome of the elections in
Lippe of 15 January 1933 was generally considered as a barometer of
public opinion with respect to the political situation. All parties had
mobilized their entire organization and propaganda machinery, and
therefore one could gauge public opinion from the result of this
election. The result showed that the losses suffered during the November
elections were almost completely regained. Thus everybody could
recognize that the decline of the National Socialist movement was
stopped and that with the continuance of the momentary political and
economic situation a further gain was to be feared.
The necessity for a decision became more and more urgent when, on 20
January 1933, the Ältestenrat (Council of Seniors) of the Reichstag—by
convening the Reichstag for 31 January—granted to Schleicher’s Cabinet
a period of grace up to that date, since a vote of no confidence by the
left and the NSDAP meant its immediate fall. The meeting in the house of
Ribbentrop on 22 January, when Hindenburg wanted to learn through his
son and the State Secretary of the Presidential Chancellery, Dr.
Meissner, Hitler’s opinions about the political situation, has to be
considered from this point of view.
The part Meissner played and also his general part in the formation of
the Hitler Government cannot be established with certainty by means of
the data at hand. In any case, as a member of the immediate circle
around Hindenburg who finally took the ultimate decision, he was by no
means uninterested in the matter. He has been judged at least very
differently. Because of his own interest in the case he can in no event
be considered as a classical witness for the judgment of the events of
that time. His testimony seems certainly in one point highly improbable.
He maintains that he opposed Hindenburg’s decision, after the latter
decided to appoint Hitler to the office of Reich Chancellor. This is
said by the same man who during the session of the Cabinet concerning
the Enabling Act did not consider it necessary to maintain the right of
the Reich President to proclaim laws, the same man who after the events
of 30 June 1934 obviously collaborated in isolating Hindenburg from all
those who could give him a true presentation of the events. I make these
remarks because a part of a Meissner Affidavit was read during the
hearing of evidence against Papen. Although according to the decision of
the Tribunal the part which was read will not constitute a basis for the
verdict, during the cross-examination questions were nevertheless asked
in reference to the affidavit which might raise doubts. The decision of
the Tribunal relieves me of the obligation further to discuss in detail
the contents of the affidavit and to indicate a number of inaccuracies
which could be easily refuted.
The hearing of evidence has shown that until 28 January 1933, Papen made
no attempts whatsoever as regards the formation of a government. On that
day, in view of the imminent meeting of the Reichstag, Schleicher had to
bring about a decision. On 1 December 1932 he advised Hindenburg against
an open fight with the Reichstag and declared that the use of armed
force in a possible civil war would be hopeless. Now he thought that he
himself could find no other solution than to beg to be permitted the use
of those forces which he previously considered as being insufficient.
But since no change in the situation had occurred since that time which
could offer reasons for Schleicher’s change of opinion, since moreover
the position of the NSDAP was strengthened by the elections in Lippe and
the general political situation had become still more tense through the
attitude of the parties, Hindenburg upheld his decision of 2 December.
Thus the resignation of the whole Schleicher Cabinet was inevitable. Now
the events took the course which necessarily and logically they had to
take if the use of arms was to be avoided. There was only one solution
now: negotiations with Hitler. Hindenburg commissioned Papen to conduct
the negotiations for the formation of the government. On Hitler’s part
it was clear that he could maintain his unwavering demands—namely, to
take over the office of Reich Chancellor himself. The task, clearly
recognized by Papen, was now to set limits to the political activities
of the new party which had not yet been tested on such a large scale.
First of all, a change of course had to be avoided in those ministries
in which any radicalism would have been particularly
detrimental—namely, the Foreign Office and the War Ministry. Hindenburg
reserved for himself the right to fill these two key positions. In order
not to entrust the new chancellor with appointing the remaining
ministers, as had been customary heretofore, Papen was charged with this
task as _homo regius_. He succeeded in limiting the number of National
Socialist ministers to a minimum. Three National Socialist members of
the Government faced eight non-National-Socialists, who for the main
part were taken over from the former Cabinet and who guaranteed a
conservative policy in their ministries. That was not all; within the
framework of the Constitution the authority of the Reich Chancellor was
to be limited in a manner hitherto unknown. Papen was appointed to the
position of Vice Chancellor. His function was not connected with a
special department but mainly intended to constitute a counterpoise to
the position of the Reich Chancellor. It was decided that Hitler in his
capacity of Reich Chancellor should report to Reich President Von
Hindenburg only in the presence of the Vice Chancellor. Thus, a certain
control was established when the Reich President formed his opinion on
the requests presented by the Reich Chancellor. In view of Hindenburg’s
personality, which one might reasonably expect to have exerted quite
considerable influence upon Hitler, this control over the information
Hindenburg received promised that a shift toward a radical course would
be avoided. This was the part the defendant had in the formation of the
Hitler Government. The Prosecution see herein a decisive, conscious step
toward the transfer of full power to National Socialism.
By considering the Case objectively, even in retrospect, one can only
arrive at the conclusion that in view of the inevitable necessity of
ceding the leadership of the Cabinet to the National Socialist Party,
every possibility for limiting the importance of this measure was
exhausted. The position of Reich Chancellor and the appointment of only
two National Socialist ministers represented the concession made to
Hitler’s demands.
For the consideration of the present proceedings it would not matter if
the solution adopted on 30 January was the only possible one or not.
Even if one were of a different opinion, the only thing that matters in
looking at the case from a criminal angle is whether Papen could
consider this solution as a necessity or in general only as a mere
political expediency. Even if, contrary to all the facts, one regarded
his opinion as utopian, it should be taken into consideration from the
point of view of penal law that one could only speak of guilt if he had
known the future consequences and the future plans of aggression and if
in spite of this he had collaborated in the formation of the Government.
The facts just mentioned have proved that there is not even the
slightest supposition for this.
In considering the case, it is of decisive importance also that the two
ministries, which in connection with the accusation of breaking the
peace are the most important or which are the only ones to play a part
at all—namely, the Foreign Office and the War Ministry—were placed in
the hands of men who enjoyed Hindenburg’s confidence and had had no
connection at all with Hitler, and from whom an unbiased direction of
the ministries could be expected. It is not unimportant to consider in
this instance what expectations one might have from Hitler and his
future policy.
The leader of the opposition party now took for the first time the
responsibility of a party, the structure and development of which could
certainly occasion many misgivings and apprehensions, a party which had
developed on the basis of an absolutely negative attitude toward the
hitherto existing government leadership, a party which, noisy and
boisterous as it was, had certainly made many concessions with regard to
the composition of its membership, a party which had laid down a new
program including points which seemed far from reality and impossible to
carry out but which—and this is the only essential fact within the
scope of our consideration of the case—apparently did not have any
criminal character.
On the other hand one cannot disregard the experience of life and
history that propaganda and responsible work are two very different
things, that a party which develops from nothing needs, according to
experience, more negative and noisy propaganda than an old existing
party. Even if the Cabinet of 30 January had consisted exclusively of
National Socialists, even if there had been no moderating element in the
person of Hindenburg, one could have assumed according to the rules of
reason and experience that Hitler, who acceded to power by means of
propaganda, would take into account the existing conditions in this
practical, responsible work and would show himself in his activities
essentially different from what he appeared during the propagandistic
preparation before his accession to power.
One instance had already shown the difference between a party in
opposition and in responsible government work: The same National
Socialists with their same program and their same propaganda who now on
30 January took over the position of Reich Chancellor had already held
the leadership or participated in the governments of some German states.
We see Frick, the leader of the Reichstag faction, acting as responsible
minister in Thuringia. His field of action included even the police and
we saw the National Socialists zealously tackling various economic
problems in these states. But we did not see them commit excesses or
even pursue an unreasonable policy, which would have been at least in
approximate agreement with their propaganda. Could it not be expected
then that now in the Reich too, with the greater tasks, the natural
sense of responsibility would increase? And that, especially in view of
the safety measures taken, matters would not take a dangerous course?
It is not superfluous to discuss Hitler’s personality in this
connection. Hitler, especially after the failure of the attempt to split
the Strasser group, was the absolute autocrat of his party. Undoubtedly
he did not show in the leadership of his party, in his speeches, and in
his appearance that reserve which should have been a matter of course
for the leader of such a big party.
However, all signs indicated that Hitler had his party under control to
such an extent that he would be able to put through even unpopular
measures which had to be taken under the pressure of reality. In the
questions concerning the participation in the government he had pursued
a policy in keeping with his intentions, wise in its tactics but often
unpopular with the impatient masses, because he took the facts into
account. Could it not be expected then that this man who now had reached
his aim—namely, to take over the leadership of the Cabinet—would
abandon the unrealistic ideas he advocated when he was in the ranks of
the opposition and would submit to the real exigencies of national and
international life?
It is also a general fact known from experience that a man confronted
with particularly great aims and with a particularly grave
responsibility grows as a ruler and as a man in proportion with these
aims and this responsibility. In view of this general historic
experience one could not assume that a man entrusted with
responsibility, after certain attempts which could be interpreted as
being promising, would soon revert to the theses of his former
opposition ideas, that after a couple of years this man would throw
overboard every positive idea he had emphasized—I remember for instance
Hitler’s professing his adherence to the Christian foundations of the
state—and that he would even surpass the negative ideas he formerly
advocated and increase to an immeasurable extent his aims and his
methods. We see now Hitler in his full development before us; and we are
perhaps tempted to interpret his actions during the last years—because
they represent something which is so monstrous and therefore so
impressive—as being the manifestations of his whole personality,
assuming that during the preceding time he had already been such.
It is not possible, within the scope of this Trial, on the basis of
events, his speeches, and especially his actions, to interpret and to
understand Hitler psychologically from the beginning of his political
activity until its end. His well-known fear of disclosing himself and
the mistrust he showed more and more toward nearly everybody in his
immediate surroundings makes it particularly difficult to judge his
personality. The individual facts which occurred lead, however, to the
certain conclusion that Papen, too, despite the fact that he was close
to Hitler, could not suspect him in 1933 of being the man he showed
himself during later years.
Papen as _homo regius_ was fully aware of his responsibility in
agreement with Hindenburg’s wishes and did what he could to prevent
radicalism from getting the upper hand. After the formation of the
Cabinet he did not sit back and take the easy way favorable for him from
an opportunist point of view. He undertook to form a counterpart to the
National Socialists at the elections of 5 March 1933 through a union of
the conservative parties of the right. For one who had adopted the
National Socialist ideas or even agreed to offer blind obedience to
their leader, the next thing to do would have been to put an end to the
opposition of this large newly constituted conservative group and to let
it effect a union with the party which had recently come to power, a way
which at that time appeared to many absolutely natural. Papen entered
the election contest as leader and organizer of the oppositional group
“Black-White-Red.” His speeches of that time, excerpts of which I
submitted in the document book, give a clear picture of his aims and
intentions. They were the affirmation of a national idea, free from the
unrestrained propaganda of National Socialism and its doctrines. In any
case his program was in irreconcilable contrast to what later turned out
to be the unpredictable extension and unlimited transgression of the
confirmed aims of the NSDAP. The formation of the political action bloc
Black-White-Red was to guarantee what Papen had tried to achieve by the
composition of the Cabinet of 30 January: a coalition cabinet which, as
an inevitable result of parliamentary rules and the entire political
situation, left the post of Reich Chancellor to the leader of the
strongest party, who, however, was forced to rule within the framework
of a coalition cabinet with all the limitations which derived from it.
THE PRESIDENT: Would this be a convenient time to recess?
[_A recess was taken._]
DR. KUBUSCHOK: I believe that I have made it sufficiently clear by these
statements that Papen’s collaboration in the formation of the Cabinet of
30 January does not constitute an attempt to place National Socialism in
a position of exclusive power. The opposite has been proven by facts.
With regard to the Defense, I have gone far beyond what would be
necessary to obtain a verdict of not guilty. If, even at this stage,
somebody had co-operated in really giving the National Socialist Party
an exclusive influence, there still would not be proof in this of a
preparatory action for the punishable crimes in the sense of the
Indictment.
The program laid down by the National Socialist Party and the statements
of the Party leaders of that time—which in view of their propaganda
value must be construed much more narrowly from an objective angle—can
be misinterpreted as much as one likes, and one may read into them in
retrospect any number of facts which became recognizable later; but one
cannot see in all this the road to the crimes set out in the Charter.
In Papen’s activities as Vice Chancellor during the period from 30
January 1933 to 30 June 1934, the Prosecution think they can see a
continuation of his efforts toward a conspiracy for the purpose of
consolidating the powerful position to which he had helped to bring
National Socialism. The Prosecution have charged him in this connection
with collaboration in the various laws passed during this period by the
Government, which, according to their opinion, merely served the
afore-mentioned aims. I will demonstrate, however, how the work of the
defendant developed in detail—that also in this respect he did not
deviate from his original policy. The Prosecution deal with a number of
laws passed by the Cabinet at the beginning of its activity which must
be considered as a compromise between the demands of the National
Socialists and the conservative ideas of the other members of the
Cabinet. Problems are here touched upon which National Socialism made
the subject of discussion and propaganda for years. The conservative
members of the Cabinet were then facing the following situation: The
strongest party and the Reich Chancellor could not entirely ignore these
questions; they had to be solved in some form.
The principle of every coalition cabinet entails a compromise for both
parties. In compromising, the other party need not change its opinions.
If, for example, in a coalition cabinet which is led by a labor party
the program of the labor government, which perhaps contemplates a
general socialization, is to be carried out in practice, the
collaboration of the other members of the cabinet will consist in
preventing a general extension of this measure and in limiting its
effect to those cases which, in their opinion, deviate least from the
course followed before. One cannot expect from the strongest party and
from its leader, who occupies the constitutional position of Reich
Chancellor, to continue the policy of his predecessors. The other
members of the coalition must make sacrifices if any governmental
activity is ever to be possible.
Since in the framework of this Trial we do not have to judge
considerations of political expediency and not even moral conceptions
but only whether what happened was done with a criminal purpose in the
sense of the Charter, the task set for the Defense is comparatively
simple.
In the legislation we see the ideological problems raised by National
Socialism partly solved. We must concede that the non-National-Socialist
cabinet members involved in considering these laws had in mind a final
solution and not a temporary one. Their experience, based on the past,
on the political life of all countries, taught them that a problem
settled by law is normally concluded. It was unthinkable—for it was
incompatible with a normal governmental activity and the maintenance of
the authority of a legislative body—that after the issuance of a law, a
problem already dealt with should continually be considered anew in the
following years and each time given a more radical solution. Papen has
proved that he carefully tried to keep the concessions made to the
opponent within a more or less tolerable limit. The fact that in the
laws of that time National Socialist doctrines appear only rarely and in
moderate terms shows sufficiently that the composition of the Cabinet of
that time had a retarding influence on the penetration of National
Socialist ideas. Without this influence it would not be understandable
why Hitler agreed to a relatively unpopular limitation of previously
advocated aims of the Party.
The restraining hand of the defendant which helped shape the individual
laws is clearly discernible. The classic example for this is his
endeavors in bringing about the Enabling Act. It was a necessary piece
of legislation for that critical time. The preceding years had shown
that, owing to time-consuming deliberations in the Reichstag, urgently
needed legislation was not passed. Therefore, already in Brüning’s time,
almost all the legislative power was put in the hands of the Reich
President in that important laws were issued in the form of emergency
decrees by unilateral legislative acts of the Reich President. For these
compelling reasons, the legislative power which could not in practice be
left in the hands of the Reichstag, was transferred to the Cabinet and
this constituted a compromise. As shown by the result of the Reichstag
vote on the Enabling Act, none of the parties, including the Center
Party, failed to recognize this.
Then there was the question as to whether the rights of the Cabinet, in
which according to the Constitution the Reich Chancellor had to
establish the fundamental lines of policy, would be limited by the fact
that the right of making laws was reserved for the Reich President. The
personal State Secretary of the Reich President declared in a cabinet
session that he did not think it necessary that Hindenburg be given the
responsibility of making all laws because of the latter’s right to
proclaim them. Von Papen’s direct intervention with Hindenburg
immediately afterward remained without success, as stated by the witness
Tschirschky.
Mr. President, would this be an appropriate time for me to present the
essential points of the questionnaire which was answered by Tschirschky?
THE PRESIDENT: Well, you can comment on it, but you aren’t going to read
the whole document, are you?
DR. KUBUSCHOK: With your approval, I will give a summary of it.
THE PRESIDENT: Yes.
DR. KUBUSCHOK: This is Document Number Papen-103, which I submitted a
while ago.
I have already read Question 1. Question 3 concerns the controls just
discussed. The witness says that they were surely intended to prevent
Hitler and the NSDAP from carrying out their policy. In the next
question the witness affirms the alleged aim of the conservative bloc
Black-White-Red. In Question 5 the witness confirms the development,
which I still have to present, toward an authoritative government by
Hitler. The answer to Question 7 shows that Papen in the Cabinet
strongly resisted the suggested legislation in many points. Question 10
concerns the attitude of Papen toward the Church. The last sentence is
particularly important:
“Von Papen believed that, by concluding the Concordat, Hitler
and the NSDAP would be placed under such strong contractual
obligations that the anti-Church attitude would be arrested.”
The next answer, 11:
“I do not consider it possible that Von Papen himself
participated in a later violation of the Concordat or that he
even used his religious conviction for political trickery.”
Question 12 confirms what I shall say about the Marburg speech.
The answer to Question 14 is significant:
“It is not known to me that Von Papen expressed opinions to the
effect that the Hitler Government would have to solve Germany’s
foreign political aims through war and aggression. In the years
1933 and 1934 such ideas would have been absurd.”
The answer to Question 15 is to the same effect. The answer to Question
18 confirms Papen’s efforts after the events of 30 June to reach
Hindenburg in order to effect a change.
THE PRESIDENT: In the answer to Question 14, does the answer begin “It
is not known” or “It is known”?
DR. KUBUSCHOK: “It is not known to me.”
THE PRESIDENT: In the translation it says “It is known.”
DR. KUBUSCHOK: The answer to Question 16 confirms Papen’s statement that
he wanted to prevent Germany’s withdrawal from the League of Nations at
all costs. I have already spoken of Question 18. From the answer to 18
it is also shown that Papen’s firm attitude after 30 June was his
insistence on resigning.
Questions 19 to 23; here the second sentence of the answer is especially
important:
“... It is correct that Von Papen accepted the post of
Ambassador Extraordinary to Vienna for the sole reason that he
hoped to prevent the insane policy of Hitler and the NSDAP in
Austria. It is correct that Von Papen made his acceptance of the
mission at Vienna depend on Hitler’s pledge to forbid any Party
interference in Austrian matters, to call back Gauleiter Habicht
at once, and to refrain from any aggressive action. It is true
that these and still other stipulations were accepted by Hitler
after lengthy protest and that they were then put down in
writing.”
In the answer to 25, Tschirschky confirms the fact that during the
witness’ period of observation Papen steadfastly adhered to this policy.
The answer to Question 26 refutes the contents of Messersmith’s
affidavit. Papen was not concerned with an aggressive policy in the
southeastern area. The answer to Question 27 sums up the attitude of the
witness to the effect that Papen did not strive for an Anschluss to be
obtained by force.
Continuing on Page 22 we see Papen again in the foreground when the
problem of anti-Semitism had its first legal effect. At that time, the
situation was the following:
There were the broad masses who for years had been influenced in this
direction, and there was a predominantly National Socialist group for
whom anti-Semitism was an important plank in the Party platform. We saw
the effects of propaganda on the masses which manifested themselves in
the afore-mentioned individual actions during the first weeks after the
formation of the Hitler Government.
The conclusions to be drawn from this situation were clear. A problem
which had been stirred up and which had already shown pernicious results
had to be legally settled. It was clear that in this question National
Socialism, through its exaggerated propaganda, had contracted a certain
obligation toward its followers. It was difficult to determine the
extent of the legal limitation, which for the incited people always had
to be disappointing. The way out could only be a compromise. The
settlement was directed to a field where a change in the hitherto
existing situation seemed to be the least severe.
Whereas in accordance with the contents of the Civil Service Law
(Berufsbeamtengesetz) only those were dismissed from their position who
occupied their position not on account of their professional
qualification but due to their membership in a political party; all
Jewish government employees who were appointed after 1918 were also
dismissed. As a rule, a right of pension was maintained. Papen’s
successful endeavor aimed to limit numerically the effect on the Jewish
government employees concerned. He remonstrated with Hindenburg, who
favored the idea of protecting war veterans. Through Hindenburg’s
personal influence on Hitler, Jewish war veterans and dependents of
fallen soldiers were then exempted from this law.
Since an overwhelming part of the young government employees who had
been employed since 1914 were war veterans, the number of those thus
exempted was quite considerable. This is made especially clear by the
official figures published concerning the conditions in the legal
profession, which were presented in Defense Document Number Papen-33.
Furthermore, the defendant is charged with the measures taken against
the labor unions. First consideration must be given to the fact that the
measures were not carried out by a regulation based on a Reich law. It
is, moreover, important that under the changed circumstances the
continuation of labor unions of a Social Democrat character might have
appeared as an anachronism. Papen’s attitude with respect to the problem
of labor unions is shown by his speech of 4 March 1933, Defense Document
Number Papen-10.
Here, too, it must be considered that at the time the measures were
taken one could not have foreseen the extent of their further
development. Considering its many rather sound ideas for the settlement
of social questions, the German Labor Front at the time of its
foundation did not merit the judgment it now deserves for the countless
coercive measures taken at the end.
The amnesty decree, as was shown during the hearing of evidence, is no
novelty. Already in 1922, in order to put an end to a period of
political unrest, an amnesty decree was issued, which also pardoned
crimes punishable by the death sentence. The establishment of special
courts was a measure of expediency to speed up the sentencing of
political offenders, because longer normal proceedings did not have the
desired element of intimidation. It is significant that the order
concerning crimes of violence in the case of the Potempa murderers
(Document Number Papen-1, Pages 6 and 7) was applied for the first time
during Papen’s Reich chancellorship, against National Socialists. Thus
it is erroneous to see in the nature of those laws approbation of
misdeeds or a promotion of the Nazi idea.
The Prosecution, in criticizing Papen’s legislative activity during this
time, emphasize the Political Co-ordination Act for the States of 31
March 1933, thus touching first of all a question of domestic policy,
which is really far outside of a field of discussion in the sense of the
Indictment.
If in this the Prosecution have the sole purpose of showing that Papen
has in this respect changed the point of view he advocated previously,
it must be said that political opinions are in general subject to
alterations and often must be altered, and that from a change of
conception with respect to political expediency measures one can by no
means draw a conclusion as to a general change of opinion. As a matter
of fact, the first Statthalter Act was designed to eliminate a dualism
between the Reich and the states, which Papen had always considered as
disadvantageous. Papen has always advocated, especially with respect to
Prussia, a solution as in Bismarck’s time, when the office of President
of the Prussian Council of Ministers and that of Reich Chancellor were
united in one person. Thus, this question, which ought to be touched
only in passing, hardly involves even a change of opinion, much less a
proof of a change of sentiment.
The following must be considered with respect to the legislative work of
the Defendant Von Papen in the Cabinet: His position of Vice Chancellor
was without an administrative province. The influence, even in general
political questions, which the head of the regular ministry had in
cabinet sessions, did therefore not exist in the case of Papen. He could
only express misgivings or objections from a general point of view,
without being able to base them on departmental grounds.
Considering the small number of cabinet session protocols
available—despite all my efforts I did not succeed in procuring the
remaining ones—the extent of Papen’s opposition and that of other
ministers cannot be proved by documents. The fact that he voiced this
opposition was revealed by the hearing of evidence. But, as admitted,
his success was small. Thus it is the duty of the defense to investigate
more deeply the reasons why Hitler’s power gradually increased and why
the influence of the non-National-Socialist ministers decreased; in
short, why the guarantees which had been provided when the Government
was formed on 30 January failed.
At the beginning the course of the cabinet sessions did not deviate from
the normal procedure. The questions which arose were made the subject of
discussions. Hitler refrained from carrying through the bills which were
rejected for good reasons. A clear description to that effect is given
by the affidavit of the former Minister Hugenberg—Defense Document
Number Papen-88.
The elections of 5 March, with the overwhelming success of the National
Socialist Party, brought along a substantial change. Beyond their purely
parliamentary repercussions, they strengthened Hitler in his conviction
that he was the deputy of the German people. He thought that now the
time had come for him to make use of his right, granted to him by
Article 56 of the Constitution of the Reich, to determine in his
capacity as Reich Chancellor the fundamental lines of policy, even when
the ministers opposed such a course.
With respect to the constitutional situation I refer to Document Number
Papen-22, which shows that in questions of fundamental policy even a
majority decision of the ministers was ineffectual against the decision
of the Reich Chancellor. Now Hitler became inaccessible to any
suggestions. Hitler took opposition to mean resistance and soon it
became evident that objections made in the Cabinet were useless in
changing Hitler’s attitude. At the best one could hope, as the Defendant
Von Neurath declared as a witness, to influence Hitler outside the
Cabinet in a direct discussion.
The most essential factors in Hitler’s development into an autocrat were
his increasingly strengthened position with regard to Hindenburg and his
ever-increasing influence on the Reich Defense Minister, Von Blomberg.
Hitler’s first measures which, in Hindenburg’s eyes, indicated a desire
to restore order, had constantly improved Hitler’s personal relations
with Hindenburg. He skillfully adjusted himself to Hindenburg’s
mentality. Therefore he succeeded very soon in abolishing the original
stipulation concerning the obligation of making joint reports. Thus,
Papen was practically deprived of the chief means of influencing
Hindenburg. The attitude of the War Minister, Von Blomberg, was the
second decisive point in Hitler’s further course.
The Wehrmacht was a powerful factor. Hitler knew that its men and
officers were probably essentially unpolitical but that by no
means—especially as far as its leadership was concerned—were they
inclined to National Socialist ideas. A radical turn in the government
might therefore always give rise to resistance on the part of the Armed
Forces. It must be added that owing to his personality, Hindenburg
listened willingly to reports coming from military circles. As long as
the War Minister was not a disciple of Hitler, the latter was prevented
from carrying out any radical ideas.
It is not possible even today to gain a historically clear picture which
would enable one to explain the reason for Hitler’s influence on
Blomberg. We must only state the fact that Blomberg very soon became an
ardent admirer of Hitler and that on his part no sort of resistance
could be expected against any extensive radical development whatsoever
of Hitler’s policy. The 30th of June 1943 was to prove this very
clearly.
In retrospect, the logical consequence of this development becomes
clear. Hitler could only be impressed by actual power. The Wehrmacht at
the beginning, especially with regard to the position of the Reich
President Von Hindenburg, was a powerful factor with which even Hitler
and his Party would not have been able to cope in a showdown. That is
the reason for Hitler’s endeavor to win Hindenburg’s confidence, the
reason for his comparatively cautious maneuvering during the time prior
to Hindenburg’s death, which by no means could envisage the intensified
procedure later on. From the time of Hindenburg’s death, Hitler appeared
as a ruthless dictator especially in the domestic scene.
In addition to the legislative activity of the Cabinet, the Prosecution
dealt with the question as to what extent Papen was responsible for the
oppression of political opponents and for certain acts of violence which
occurred during the period which the terminology of that time called
“national revolution.”
During the cross-examination Papen was asked whether he knew about the
arrest and mistreatment of individual Communist and Social Democrat
personages named to him. Papen gave a generally negative answer.
However, he knew that on the basis of the Decree for the Protection of
People and State issued by the Reich President measures had been taken
which suppressed the personal liberty of a great number of leftists. The
decree was issued by the Reich President, outside Papen’s
responsibility, and by suppression of the relevant constitutional
stipulations. It was established under the impression created by the
Reichstag fire, an event which up to the present day has not been fully
elucidated, but for which the official statement that Communist circles
had been the instigators seemed to be entirely credible, especially
since a search of the Liebknecht House, the Communist headquarters, had
produced, according to Göring’s declaration, very serious evidence
concerning actions planned against the Reich Cabinet. The investigation
proceedings were held by a judge of the Reichsgericht (Reich Supreme
Court), a personality whose impartiality was beyond any doubt. Therefore
Papen could understand the legal security measures which the Ministry of
the Interior thought necessary. But knowledge of the arrest of these
politicians is by no means connected eo ipso with the knowledge of the
details and of the extent of the measures taken at that time.
During the years of the National Socialist regime he learned again and
again that the knowledge of acts of violence remained restricted to the
narrow circle of the direct participants. The measures taken to silence
an internee before his release were evidently successful. Thus we see
again and again that there was always only a small initiated circle from
the immediate environment of returned internees. This explains the fact
which sometimes amazes one afterward, namely, that wide circles were not
informed of the kind and extent of the excesses committed. It is evident
that close relatives and close friends of the politicians arrested at
that time knew of what had happened to their people. The extent of the
secrecy is shown best by the fact that the witness Gisevius assumes that
the conditions in concentration camps did not become generally known to
Gestapo officials until 1935.
Thus it seems to me quite clear that Papen knew very little about the
measures which, during the first months, were almost exclusively taken
against political opponents of National Socialism coming from leftist
circles. At any rate his knowledge did not go beyond the fact that in
this respect arrests were made within the scope of the Decree for the
Protection of People and State.
It was a different matter, however, with the later encroachment on the
rights of Church offices and organizations, which were closer to him and
which he energetically tried to help. The same holds true for the
measures in connection with 30 June 1934, which will be discussed later
on.
In any case it is a decisive fact that the measures, as far as they were
outside the law, were subject to the jurisdiction of the Police and the
Ministry of the Interior. The law itself is an emergency decree of
Hindenburg’s. It came about legally. The now broadened conception of
protective custody does not in itself constitute a crime.
With regard to anti-Jewish excesses the Prosecution accused Papen of
having sent a telegram to the _New York Times_ on 25 March 1933,
describing the situation in Germany as quiet on the whole, and of having
pointed out that individual actions had occurred but were now prohibited
by an order from Hitler.
From the sources which were accessible to him, Papen had of course heard
of the excesses of which individual SA men had become guilty in this
unsettled period. If on 12 March 1933 Hitler categorically forbade such
actions by individuals and ordered the strictest punishment for any
culprits in the future, Papen could assume with a clear conscience that
this order which emanated from the highest authority would henceforth be
obeyed.
In passing it is interesting in this connection to refer to a public
announcement of the League of Jewish Front Soldiers of 25 March 1933.
This proclamation also stated the fact that the situation with respect
to the Jewish population was in general quiet and that excesses were
confined to actions by individuals, which had now been forbidden by
Hitler. I shall submit this publication of the League in my document
book for the Reich Government. The same standpoint was taken in a
publication of the American Chamber of Commerce in Cologne on 25 March
1933, which publication I shall also present during the hearing of
evidence for the Reich Government.
The anti-Jewish boycott, which was announced some days later and which
was carried out on 1 April 1933, was, contrary to the opinion of the
Prosecution, no government measure but exclusively a Party measure which
Papen, too, as well as others in the Cabinet, sharply opposed. The
publication of the _Times_ submitted with Defense Document Number
Neurath-9 proves that over and beyond this Papen made representations to
Hindenburg and had the latter intervene with Hitler. For the rest, one
must take into consideration the fact that the anti-Jewish boycott had
been announced as a defensive countermeasure which was to be limited in
time and to be extended only to business life. It had been expressly
forbidden to use force and excesses were to be prevented by
corresponding measures.
The Prosecution have presented the domestic policy in such a light that
it would seem that through the measures taken the position of the
National Socialist Party was to be strengthened, so that it should then
be possible to turn to the aims dictated by a foreign policy of force
which had been decided upon beforehand. Still more important than the
discussion of domestic conditions is, therefore, an examination of the
foreign policy of the Reich during the time Papen was Vice Chancellor.
Hindenburg’s reservation that he would appoint the Foreign Minister and
the appointment of Von Neurath, who had been Foreign Minister until then
and was not a National Socialist, to this post necessarily led one to
expect a foreign policy along the course hitherto taken.
Hitler’s first measures seemed not only to justify this expectation but
even to go beyond it. The first speech on matters of foreign policy,
made on 17 May 1933, dealt with Germany’s relations with Poland which in
the past had never been entirely satisfactory. The subject of the
annexation by Poland, recently revived, of large territories formerly
belonging to the German Reich had brought with it a latent tension
between these states. Hitler was the first to take up this problem and
to resolve, according to his declaration in the Reichstag, to bring
about a policy of friendship with Poland by recognizing the Polish State
and its needs. If one considers the fact that the thought of renouncing
all claims to a revision in regard to Poland was not only generally
unpopular but also stood in sharp opposition to previous propaganda, it
was impossible to foresee the development of later years. One was
necessarily convinced that here was an internally strong government
supporting its domestic reconstruction with a policy of peace abroad.
Germany’s joining the Four Power Pact and her renewed profession of
adherence to Locarno served to underline this conviction. The struggle
in foreign politics for ideological values lay in a different direction.
The question of eliminating the clause in the Versailles Treaty which
stipulates Germany’s exclusive guilt and the question of equal rights
for this large country, which had pursued a persistent policy of peace
since 1918, were demands which, on one hand, did not seem to burden the
other side with unbearable sacrifices but which were suited to remove
from the German people an ideological burden which was considered
oppressive.
Germany’s withdrawal from the Disarmament Conference must be considered
from these viewpoints. It took place after lengthy negotiations had
produced no positive results and because it was in no way evident that
the powers were inclined to bring about a fulfillment of the German
demands. The declaration of the Reich Government and of Hindenburg that
this step was to be looked upon as a tactical step and that the same
objectives were to be retained, namely, the preservation of peace under
recognition of equal rights—all this therefore had to appear credible
and reasonable.
From the same points of view Papen also approved of this step. With
regard to the simultaneous withdrawal from the League of Nations
opinions could have differed. Here, too, one might hold the view that
the withdrawal was necessary as a movement of protest and that one could
prove through factual efforts in the matter itself that it was intended
to adhere to a policy of peace.
Papen figured among those who felt obliged to advise against withdrawal
from the League of Nations, even though he himself had experienced as
Reich Chancellor that the negotiations in the assembly of the League of
Nations caused certain difficulties in some questions. On the other
hand, however, he was so convinced of the institution of the League of
Nations being an instrument of understanding and an instrument to
facilitate the technical possibilities for agreement that he wished to
avoid withdrawal from the League of Nations. He advocated this opinion
very strongly. Since he could not persuade Hitler in Berlin, he followed
him to Munich shortly before the decision in order to lay his
well-founded opinion before him there. We see Papen here working
actively in a field for which in his position as Vice Chancellor he
actually had no responsibility, aiming at a solution which, if one takes
as a basis the views of the Prosecution concerning the withdrawal from
the League of Nations, can only be considered as a step toward peace.
Because of the fundamental importance of the withdrawal from the League
of Nations the measure was submitted to the German people in the form of
a plebiscite enabling it to state its opinion. On the occasion of this
plebiscite, Hitler, the Government, and Hindenburg issued proclamations
which emphasized expressly that this step was not intended to constitute
a change of policy but merely a change of method. Preparations for the
plebiscite were carried out in line with this statement.
The Prosecution accuse Papen of having glorified in his Essen speech the
successes of Hitler’s Government and of having unconditionally advocated
an affirmative attitude toward the questions to be decided by the
plebiscite. If Papen did the latter, it was because he felt obliged to
do so, the decision having been cast once and for all—a decision which
had to be justified before the world. If the responsible leaders
actually did not strive for anything but a change of methods, no
objections could be made. The position of German foreign policy would
have been shaken if the people had shown in the plebiscite that they
opposed the measure already taken. It was therefore quite natural to
approve of this policy in public within the framework of the solemn
assurances which had been given. Moreover, it could not be overlooked
that in a plebiscite on government measures the vote of confidence could
not fail to affect internal politics altogether.
We have to take the date of the speech into consideration. In November
1933 Hitler had made progress in urgent matters which were in the
foreground—namely, the amelioration of economic distress and the
elimination of unemployment. His measures were taken on a large scale
and at first showed apparent success. Here, too, one cannot measure
things by the same standard that one applies to them today in full
knowledge of their development. At that time the course taken seemed
justified by its success. In his electoral speech which demanded
demonstration of confidence for the Government for the purpose of
acknowledging a matter of foreign policy, Papen felt obliged to refer
appreciatively to this positive development in domestic politics.
In his introductory speech Mr. Justice Jackson himself acknowledged in
the following words the conditions of 1933 which have been described:
“After the reverses of the last war we saw the German people in
1933 regain their position in commerce, industry, and art. We
observed its progress without distrust and without malice.”
Of all problems of foreign policy it was perhaps the question of
German-French relations which interested Papen most. In his own
testimony he has stated his views on this subject and has related how,
as early as in the twenties, he collaborated in various political and
Catholic bodies with the idea of promoting mutual understanding between
France and Germany. I refer in this connection to Document Number
Papen-92 and to the meeting between Papen and the French Colonel Picot
described therein, which is characteristic of Papen’s attitude.
In the new Government, Papen, as Commissioner for the Saar territory,
paid special attention to this question. We see how he tried to avoid in
the Saar question as well everything that could in any way impair, even
temporarily, the relations between the countries. Therefore he suggested
that there should be no recourse to a plebiscite which might give
renewed impetus to political chauvinism in both countries. Hitler,
himself, not only before he took over power but as responsible chief of
the Cabinet, had stated time and again that Germany had no intention of
bringing up the question of Alsace-Lorraine, but that the Saar question
was the only problem still to be settled between the two countries. And
in so doing he followed entirely the suggestions of Papen, which aimed
at a peaceful settlement.
Papen is also accused of having deceived the contracting party, namely,
the Vatican, by concluding the Concordat in July 1933. By concluding the
Concordat Papen allegedly intended to strengthen Hitler’s position and
to enhance his reputation abroad.
The hearing of evidence has shown that the Concordat in its effects,
too, was a bilateral pact, and that the legal obligations of the
Concordat during the treaty violations on the part of Germany which
followed soon afterward, also offered certain legal protection for the
violated party. The questionnaire of Archbishop Gröber concerns the
conclusion of the Concordat. I refer to Document Number Papen-104 which
I submitted today, and I summarize it as follows:
Archbishop Gröber is of the conviction that the Concordat was concluded
because of the initiative of Papen. Furthermore, he confirms that Papen
succeeded in persuading Hitler to the conditions of the Concordat. In
the answer to Question 4, in particular, he confirms that Papen’s
activities while the Concordat was concluded were dictated by his
positive position toward religion. Finally he confirms, in the answer to
Question 6, that the Concordat was a legal “bulwark” and a support in
face of the later persecution of the Church. Answer 7 confirms in fact
that the Work Association of Catholic Germans, which I shall mention
later, was not an organization protected by the Concordat.
In any case, it is entirely wrong to suppose that Papen had any
knowledge of intended future violations of the treaty and that for that
reason he had brought about its conclusion. If he had wished to enhance
Hitler’s reputation abroad, this means would have been the least
suitable that could be imagined. A struggle against the Church without
the Concordat would have met, it is true, with an unfavorable reception
abroad, but it would nevertheless have been an internal German affair.
The existence of the interstate treaty made these Church persecutions at
the same time a violation of an international treaty and lowered our
prestige. One cannot conclude a treaty for the purpose of gaining
prestige if immediately after its conclusion one proceeds to violate the
same treaty. This consideration alone refutes the assumption of the
Prosecution. Beyond this the accusation of the Prosecution shows a
characteristic tendency.
Every action of Papen’s which has in any way come to light must be
interpreted, they feel, in the sense of the conspiracy theory to Papen’s
disadvantage; and the simplest procedure for doing so is to place the
later development into the foreground, claiming Papen’s co-operation in
and knowledge of this development and to denote his previous contrary
statements of opinion as ambiguous and double-faced. This procedure is
simple, if one considers the knowledge of later developments in
retrospect as self-evident and if one does not picture the true factual
situation at the time—above all, if one makes no effort to go into the
logic in the proclaimed original intention and the further developments.
Only in this manner can one, as in this instance, come to a conclusion
which on closer consideration presupposes the folly of the person acting
at the time.
But quite apart from these deliberations, the attitude of the defendant
toward religious matters removes the slightest doubt of the sincerity of
his intentions. In the hearing of the evidence it was set forth that not
only his closest personal advisers in Church affairs but also the
highest dignitaries of the Church, who were in closest personal as well
as professional contact with the defendant in these matters, emphasized
that his attitude as a Catholic was absolutely beyond reproach at all
times.
The lack of foundation of the whole Indictment with regard to Church
questions is already made clear by the refutation of the assertion of
the Prosecution that Papen himself broke the Concordat by dissolving the
Work Association of Catholic Germans. I refer in this respect to the
unequivocal testimony of the former secretary of the Work Association of
Catholic Germans, Count Roderich Thun, Defense Document Number Papen-47.
It must be stated, however, that Papen not only regretted the subsequent
violations of the Concordat by the Reich but that he actively tried to
oppose them. The entire activities of the Work Association of Catholic
Germans consisted practically of nothing else but the establishment of
such violations of the Concordat in order to furnish Papen with evidence
for his constant interventions with Hitler. After Papen’s departure for
Vienna, the practical possibility of such interventions ceased to exist.
From all of Papen’s speeches it is evident that his attempt at
safeguarding the churches did not emanate from considerations of
political expediency of the day but from his fundamental religious
attitude. I believe there is no speech in which he did not express
himself on this problem, emphasizing time and again that only the
Christian philosophy of life and thus the Christian churches, could be
the foundation for the orderly government of a state. In just this
Christian foundation he saw the best protection against the tendency of
the Party to give preference to an ever-increasing extent to the idea of
sheer might over right.
With regard to Papen’s report to Hitler of 10 July 1938, Document Number
2248-PS, which was submitted during the cross-examination, the
Prosecution fell victim to a quite obvious misunderstanding. Papen
refers in it to the favorable result there would be in the field of
foreign politics if one could succeed in eliminating political
Catholicism without touching the Christian foundation of the state.
Papen does not state here his opinion on the past and present situation
but furnishes advice for the future. The content of this advice is
definitely positive in the ecclesiastical sense. It states that one may
eliminate political Catholicism; but the purely ecclesiastical interests
themselves, that is, the Christian foundation of the state, must remain
untouched. These directives destined for future times obviously contain
criticism of the past as well. We see here how, in connection with
foreign political activities, matters could be discussed and brought up
to Hitler which in themselves belong to another field.
In his own testimony Papen replied to the accusation of the Prosecution
that as a good Catholic he should have resigned after the Pope had
issued his Encyclical Letter “With Grave Apprehension” of 14 March 1937.
Papen could refer, in this connection, without any criticism and with
full approval, to the standpoint of the Church itself, which has always
been of the opinion that one should hold a position so long as it still
offers the slightest opportunity for positive work. Owing to this wise
attitude and to its feeling of responsibility for the German Catholics,
the Church up until the end never completely broke with the Third Reich.
One cannot ask an individual Catholic to take any other standpoint in
this respect. This all the less as Papen, in his purely foreign
political activities, came into no conflict whatsoever with his Catholic
conscience.
The accusation that in the fall of 1938 he should have protested to
Hitler about the treatment of Cardinal Innitzer is also without
foundation. Papen himself can no longer remember today when and in what
form he heard of these occurrences at all. The German press did not
publish anything about it, and in no case did such matters reach the
public via internal Church channels, as the Prosecution assume. In any
case at that time Papen had no possibility whatsoever to intervene,
being merely a private person and besides in very bad standing with
Hitler at the moment.
I have already dealt with Hitler’s development into an autocrat. After
the cessation of joint reports to Hindenburg, Papen’s influence was
reduced to a minimum. Protests in Cabinet sessions coming from a single
man, who was unable to base these protests on requirements of his own
department, were of purely declaratory nature. Meanwhile the Nazi
doctrines were being applied more and more in practice. It became clear
that the willingness of the early days to compromise in agreeing to a
rule by a coalition was slowly abandoned and that the National Socialist
doctrine kept gaining ground in all fields. It was clear to Papen that
he would not follow that course. It was likewise clear that within the
framework of his official position he could not alter the general trend,
apart from his efforts to help in many individual cases. On the other
hand his position of Vice Chancellor, which still existed in theory,
gave him certain weight in public life. Thus he had to face the problem
as to whether he should launch out on a policy of public criticism of
all the prevailing abuses as a last attempt to influence the development
by public discussion of the problems. In case of failure, he would have
at least publicly branded these abuses even if, as a natural
consequence, Papen would have to give up his position and would thus no
longer be able to aid many people in individual cases.
In his Marburg speech of 17 June 1934 Papen distinctly branded all
abuses which had become apparent until then. Such extensive public
criticism remained unique in the history of the Third Reich.
He realized that the danger of Nazism lay in the fact that its different
doctrines were so interlocked that they formed an iron ring of
oppression on all of public life. Had only one link of that ring been
smashed, the dangerous character of the entire system would have been
averted. If only one of the points discussed had met with practical
success in a favorable sense, it would have meant a total change of
conditions. The system objected to could not have existed another day if
the freedom of speech demanded by Papen had been granted. It could not
have been upheld if the conception of justice and of equality before the
law were recognized. It could not have existed if freedom of religion
were guaranteed. A Marxist mass theory cannot be upheld if the maxim of
the individual’s equality, common to all confessions, is advocated.
Each of Papen’s attacks in his Marburg speech—he had dealt with the
racial issue already in his Gleiwitz speech—was in itself an attack
upon the development of the entire Nazi doctrine. Here a leading member
of the opposition in the Government clearly indicated the source of the
abuses.
The consequences of such an action were foreseen by Papen from the very
beginning. Either Hitler would take into consideration the new state of
affairs after it had become a matter of public discussion, or Papen was
going to offer his resignation, since he could no longer reconcile
further co-operation with the path chosen by Hitler.
Evidently Hitler at that time did not consider it necessary to make a
concession to public opinion by deviating from his line of action. He
tried to kill the opposition by forbidding the publication of the speech
and by penalizing its distributors. Papen resigned. Hitler did not
accept this resignation immediately, since he obviously had to take
Hindenburg into consideration, wishing to clear up the situation first
of all with him. Meanwhile the events of 30 June took place. What fate
had originally been destined for Papen in the course of those events
will probably never be known definitely. Particularly, it will never be
elucidated whether different people were moved by different intentions.
The course of the actions becomes most apparent by the manner in which
they were carried out against the office of the Vice Chancellor. Bose
was the first victim, in the very building of the Vice Chancellery.
Jung, who was arrested outside of Berlin, was also shot. His fate,
however, became known to Papen and the public only much later, as it had
been hoped at the beginning that he had left Berlin and had gone to
Switzerland, having been warned by the measures taken as a result of the
Marburg speech. The other members of the staff who could be apprehended
were taken into custody by the police and later sent to concentration
camps. As to Papen himself one hesitated to make a final clear decision
as to his fate. His close relationship to Hindenburg made it seem
advisable not to add to the list of victims of 30 June so prominent a
name, especially after it had been burdened enough, as far as Hindenburg
is concerned, with the crime camouflaged as self-defense against
Schleicher.
At any rate, within the framework of the Indictment it suffices to
establish that whatever Papen’s fate has been in the end, the measures
taken against him and his people demonstrate his absolute opposition
against Hitler and the Nazi policy.
During the cross-examination the Prosecution presented letters to Papen
which outwardly seem to show at first a certain divergence from his
usual attitude. In those letters Papen assures Hitler of his attachment
and loyalty and hides his real and material desires under polite phrases
which otherwise were in no way customary in his relations with Hitler.
It may appear surprising that a man who opposed the system, who had been
persecuted for that reason, and upon whose associates such incredible
things had been inflicted, chose to write such letters. But for a fair
judgment a correct understanding of the state of affairs at that time is
required. A state of lawlessness existed at that time. It offered a
favorable opportunity to get rid of troublesome opponents: The examples
of Schleicher, of Klausner and others have sufficiently shown that.
There was no way of knowing beforehand when and in what manner the
measures taken against the persons already involved in these matters
would end. The heated imagination saw in every man with opposing ideas a
conspirator with these SA groups who sooner or later had really intended
to revolt against Hitler.
How far indeed persons of the right, because of their opposing attitude,
had joined hands with the SA, which was a powerful factor at that time,
has not been established with certainty up to now. However, it could not
be judged at that time whether or not Hitler’s statements in regard to
persons not belonging to the SA were correct.
For Papen the situation at that time was as follows: He knew of Bose’s
assassination but was as yet unaware of Jung’s fate. He hoped that the
latter had escaped. Three of his co-workers were in a concentration
camp. These had first to be released. And also in view of the future the
suspicion had to be dispelled that any one of them, as well as Papen
himself, had been in contact with the SA circles in revolt. If Papen
ever wished to make any representations with Hitler, the first
requirements for any possible success would be to show that he was far
removed from such SA circles. Papen therefore felt obliged to assure
Hitler of his loyalty and faith. Besides, Papen had been convinced for
years that Himmler and Goebbels were behind the attack on him and the
Vice Chancellery and that Himmler in particular wanted to eliminate him,
having been prevented from doing so only by Göring and that therefore in
order to protect himself against these two it was necessary to assure
Hitler of his irreproachable attitude.
In judging these letters it is not their form but their contents which
is essential. The whole gist of the letters is the demand of
rehabilitation for his own person and his associates. He demands court
action. He advises Hitler to strike out from his intended Justification
Law all actions directed against persons outside the SA circle.
But what is the meaning of these demands of Papen? Their real
significance is his adherence to legality with regard to the illegal
actions of 30 June. He demands an objective and judicial clarification
of all that is to be condemned in the events of 30 June. When we
consider these events of 30 June, we must always bear in mind that they
fall into two parts. The first were measures against the SA leaders,
whose radicalism had always been known and who were always connected
with acts of violence and independent activities which in the past had
had to be condemned. Intervention against such people could be explained
as an act of state defense against dangerous forces which were ever
ready for revolt. The other part consisted of measures against
individuals outside the SA circle. A court investigation would have
resulted in the clearing up of these events and in condemning the
persons responsible.
I believe that an objective study of the events at that time leads one
to the conviction that Papen’s letters really had no other purpose than
to achieve what he had proposed to Hitler, namely, rehabilitation by
means of a court action of those persons who had been unjustly
persecuted and the insistence on a decree to establish the illegality of
the measures in question. If we come now to the heart of the matter and
to what was actually desired we can by no means give to the form of
these letters the meaning which is ascribed to them by the Prosecution.
That this form in particular did not represent an approval of the
measures of 30 June but was merely used for the above-mentioned purpose
is best shown by the examination of the letter of 17 July. Though at
that time Papen had succeeded in having his co-workers released from the
concentration camp, his other demands were not fulfilled by Hitler. So
we now see a piece of writing which is entirely lacking even in the most
elementary forms of politeness, merely objective statements and
objective requests, a piece of writing signed only with the name of
Papen, without even a closing courtesy formula.
With regard to the subject Papen does not retreat from his line of
conduct for a single moment. He insists upon his resignation and demands
immediate action on it, as the letter of 10 July 1934 shows; he refuses
to play any part in future government activities. He leaves Hitler
immediately after having had him called out of the Cabinet session on 3
July. He keeps aloof from the Reichstag session at which the
Justification Law is passed. He rudely declines the offer to accept the
comfortable post of Ambassador at the Vatican. Such was his negative
attitude.
As to the positive one, he strives to bring about the intervention of
the Armed Forces. He turns to his friend Generaloberst Von Fritsch.
Blomberg, because of his attitude, is out of the question. Fritsch will
not act without an express order from the Reich President. So now Papen
endeavors to get in touch with Hindenburg. But Hindenburg’s entourage
keeps him off.
THE PRESIDENT: You might stop there.
[_The Tribunal adjourned until 23 July 1946 at 1000 hours._]
ONE HUNDRED
AND EIGHTY-FOURTH DAY
Tuesday, 23 July 1946
_Morning Session_
DR. KUBUSCHOK: Yesterday I stopped at the point where I was describing
what Papen did in the course of the measures of 30 June. I mentioned his
resignation, his refusal to co-operate in any way. I shall continue at
the bottom of Page 46, the last paragraph.
On the positive side he strives to have the Armed Forces intervene. He
applies to his friend General Von Fritsch. Blomberg, because of his
attitude, is out of the question. Fritsch will not act except on the
express orders of the Reich President. Papen then endeavors to contact
Hindenburg. But Hindenburg’s entourage keeps him off. All access to his
estate, Neudeck, is blocked by SS guards. Papen sends his secretary
Ketteler to Hindenburg’s neighbor and old friend Herr Von Oldenburg in
order to obtain access to Hindenburg by this means, but that attempt
also fails. He is left to witness how far Hindenburg has obviously been
influenced when he publicly approves of Hitler’s conduct in an official
telegram on 30 June.
What steps were left for Papen to take with the prospect of even
moderate success? In his negotiations with Hitler he had tried to put
matters on a legal basis. His attempts to mobilize the only factor of
power, the Armed Forces, had failed. Hindenburg was unapproachable; his
advisers had evidently influenced him in the opposite direction.
The Prosecution hold that this was the time for Papen to refer openly to
the criminal events of June 1930: by so doing he could have brought
about the collapse of the entire Nazi system. That assertion is
untenable. Apart from the fact that, as we have demonstrated, Papen
could no longer make an official statement of this nature, subsequent
developments in Germany have made it plain that no individual protest of
the kind would have had any effect on Hitler’s power either at home or
abroad. Hitler’s prestige in Germany was already so great—and it
increased as time went on—that such a protest, assuming that it reached
the public at all, would certainly have found no echo in the masses of
the population. The great masses saw only the economic improvement and
the strengthening of Germany’s position abroad, and only a comparatively
small number of them realized the true danger of this development.
Foreign countries were, for the most part, better informed of the events
of 30 June than were the Germans themselves. A statement by Papen would
not have made matters clearer to the German people. No conclusions were
drawn from the available knowledge by foreign countries either at that
time or later.
The Prosecution even believe that such a step might have led to the
reoccupation of the Rhineland by the French. I cannot imagine on what
the Prosecution base this assertion. It is contradicted by the fact that
later events, not connected with internal politics, but vitally
affecting other countries—for instance, the introduction of compulsory
military service and the occupation of the Rhineland—called forth no
military reaction.
By his resignation and his open refusal to attend cabinet and Reichstag
sessions, Papen made it clear to the public that he was opposed to the
state of affairs. His conduct was a public protest against the measures
of 30 June and their perpetrator. The Prosecution cannot deny these
outward signs, which are historical facts. They attempt, however, to
construct an antithesis between his outward behavior and his inner
convictions. The only evidence at their disposal for that purpose are
the letters addressed by Papen to Hitler in July. Even if the real
nature and purpose of these letters were not clearly discernible from
their contents, as in fact is the case, such an attempt would fail in
any case in face of the facts just stated—since the means at hand were,
from their very nature, inadequate.
In this connection, I would like, in general, to make the following
observations: What reason could Papen have for assuming in public a
hostile attitude toward Hitler during his vice-chancellorship, and
during the events of 30 June, if he had been, in fact, his loyal
follower? What reason could Hitler who, according to the Prosecution,
conspired with Papen, have had for desiring this, and this, after all,
would only be a result of the conspiracy? Could Hitler have wished Papen
to disclose in his Marburg speech all the weaknesses and abuses of the
Nazi system? What reason could Hitler have had for wishing Papen to
remain so obviously aloof from the lawless proceedings of 30 June? It
could only have been in line with his policy to show the unity between
Vice Chancellor and Reich Chancellor to the public. If these points are
taken into consideration, there is only one possible conclusion: There
is no logical basis for the Prosecution’s interpretation of Papen’s
inner conviction.
This thesis of unconditional obedience to Hitler, despite certain facts
apparently indicating the contrary—but actually for purposes of
camouflage—is again applied by the Prosecution to Papen’s acceptance of
the Vienna post. Before discussing this problem, let me briefly state
the following. In my opinion the final development in the Austrian
question—which occurred after Papen’s recall, and undoubtedly without
his co-operation—namely the marching-in on 12 March 1938—does not
represent a crime in the sense of the Charter either. The Charter
considers as punishable the preparation and waging of a war of
aggression, or a war by violation of international treaties. In the
three counts of the Indictment, the Charter confines itself to the
arraignment of what appears to be crime at its gravest, with terrible
and all-embracing consequences. The forbidden war of aggression itself,
the crimes against the laws regulating the conduct of warfare, the
crimes against humanity in their most brutal form, the immeasurable
consequences of these grave actions—all these things have justified
this unusual trial. The Charter does not charge the Tribunal with the
punishment of all the injustices which have occurred in the course of
the development of National Socialism. In particular it does not charge
the Tribunal with the task of investigating every political measure in
order to determine whether it was necessary or permissible. Such a task
is no part of the functions of this Tribunal, if only for technical
reasons and for lack of the necessary time. It is not the task of the
Tribunal to examine whether or not international treaties were observed.
This question is only of importance if wars were caused, or if the
crimes of violence which are to be described in detail have to be
accounted for. The march into Austria is not a war, however far one
stretches the meaning of the term, from the standpoint of international
law. Here the sole decisive factor is that no force was employed, and
not the slightest resistance offered; but that, on the contrary, the
troops were received with jubilation. Furthermore, the march into
Austria cannot be considered in connection with the later acts of
aggression. It was a special case, based on an obvious predicament,
which found its expression since 1918, in the fact that efforts had been
made by both the Austrians and the Germans to effect some kind of
constitutional union between the barely viable Austrian State and
Germany. Therefore, the actual events must be considered apart from
Hitler’s war plans, and even from his purely military plans of
preparation—with which I shall deal later—and must be regarded as the
solution of a state political problem which had become acute, and the
result of which had always been desired by both sides, independently of
Hitler.
Papen’s activity in Vienna is clearly characterized by three episodes:
The circumstance of his appointment on 26 July 1934; his letter to
Hitler dated 16 July 1936—Defense Exhibit Papen-71, Document
2247-PS—after the conclusion of the July agreement; and his recall on 4
February 1938.
The following circumstances led to his appointment. A crucial event had
occurred: Dollfuss had been murdered. Not only were Austro-German
relations strained, but they had reached an extremely dangerous stage of
development. The international situation was acute. Italy was mobilizing
at the Brenner. It was to be feared that Austria would now turn finally
to one of the groups of powers interested. A situation which would
definitely and finally render impossible the maintenance of even
tolerable relations between Germany and Austria seemed to be impending.
In this difficult situation, Hitler obviously thought it necessary to
discard his objections to Papen’s person and to entrust him with the
mission in Vienna.
Papen was particularly fitted to initiate a policy designed to overcome
the deadlock caused by the assassination of Dollfuss. In the Cabinet,
Papen had always been in favor of developing friendly relations with
Austria. Papen had an international reputation as being the
representative of a reasonable policy of mutual understanding. He
naturally had strong misgivings in taking over this post, however. His
recent experience in home politics, his personal attitude to his own and
his colleagues’ treatment on 30 June, his attitude to the murder of
Dollfuss, with whom he had remained on the most friendly terms since his
previous office, were against his accepting the post. It was, therefore,
a very difficult decision for Papen to make; but the consideration that
he alone was in a position to fulfill this task in the spirit of genuine
appeasement was bound to outweigh everything else. Could he assume that
any other man had the necessary strength of will, as well as the power,
to insure that the way of appeasement now begun would be followed to the
end? The personal independence which he himself enjoyed could not be
expected of a German Foreign Office official, much less of a Party man.
Papen brought to this his experience as Vice Chancellor. He knew the
difficulties of convincing Hitler by arguments of fact alone. He alone
had any prospect of insuring a consistent peace policy in the future, in
spite of the opposition of Hitler’s extremist advisers. On the other
hand, he had learned caution from his experiences.
He stated conditions and demanded the establishment of a clear policy
based on facts. He demanded that no further influence be exerted on the
Austrian Nazi movement, and that this be insured, in the first place, by
the dismissal of the man who had played a direct or indirect part in the
criminal act—Landesinspektor Habicht. He asked that he himself be
subordinated to Hitler personally in order to assure compliance with the
conditions as he had proposed them, and to avoid their being weakened by
administrative channels. He succeeded in doing something ordinarily
impossible in his relations with the head of the State: The conditions
under which he accepted the post of Ambassador were laid down in
writing. They were signed by Hitler. He wanted always to be in a
position to force Hitler to keep to his written word. We obtain a clear
picture of these events through the testimonies given by witnesses,
particularly by the statement made by Von Tschirschky, a man who, as the
Prosecution have stated, is certainly not suspected of viewing the
defendant in a favorable light.
The Prosecution assert that Papen, as a faithful follower of Hitler’s
already known plans of aggression, had, from motives of sheer
opportunism, eagerly and willingly accepted the new post. On the other
hand, can the form of the appointment and the extreme precautions taken
by the defendant really harmonize with such an attitude? These secret
conferences, this unpublished document signed by Hitler, which was in
Papen’s possession, cannot really be regarded as a pretense made in
order to create a false impression, as the charge made by the
Prosecution would infer. These things were not intended to be publicized
and were, in fact, never made public. The circumstances connected with
his acceptance of the Vienna post can only lead us to conclude that
Papen was sincerely eager to maintain the appeasement policy agreed
upon. It is absurd to speak of opportunism in this connection. Papen had
declined the position of Ambassador to the Vatican. The position of
Ambassador in Vienna was hardly an enticing post of honor for a former
Reich Chancellor and recent Vice Chancellor. The soundness of Papen’s
own financial situation excluded all thought of material motives.
Papen’s letter of 16 July 1936 to Hitler is a report on the success of
his many years of work in the interests of settled peaceful relations
between both countries. The treaty of 11 July 1936 put the seal upon
this. There can be no question as to the value of this document as
evidence. It gives a clear account of Papen’s assignment and the way in
which he carried it out. Papen points out that the task for which he was
called to Vienna on 26 July 1934 is now concluded. He considers his work
as finished with the conclusion of the treaty. There can be no clearer
proof of the truth of Papen’s statement, in regard to his task and the
way in which it was carried out, than that furnished by this letter.
And yet, what far-fetched and dubious motives have been imputed to him
in connection with this mission! He is said to have acted as Hitler’s
willing tool in accepting the task of preparing and carrying out the
forcible annexation of Austria. He is said to have been instructed to
undermine the Schuschnigg Government and to co-operate for this purpose
with the illegal Nazi movement in Austria. Everything he did with a view
to mutual appeasement is described as camouflage to help him to carry
out his underground plans. And here is a report of his work which is
addressed to his employer and is above suspicion. Is it camouflage,
intended to create an impression entirely incompatible with the
facts—this letter, found by the Allied troops in the secret archive of
the Reich Chancellery, and now obligingly placed at the disposal of the
Defense Counsel by the Prosecution?
The third episode which clearly indicates the nature of Papen’s activity
in Vienna is his recall on 4 February 1938. The numerous recalls and
appointments made on that date clearly showed reorganization of the most
important military and political posts. The identity of the military men
and diplomats recalled makes clear what the sole reason was for the
unusual and extensive changes made at that time. If Hitler at such a
time recalled Papen from his post, without any other definite cause for
doing so, entirely unexpectedly and without giving reason, this clearly
proves that Hitler, embarking upon a foreign policy of extremism, no
longer considered Papen the right man for Vienna.
These three points are in themselves sufficient and unequivocal proof of
the peaceful nature of Papen’s activities throughout the entire duration
of his Austrian mission. As the Prosecution, however, tries in this case
to interpret isolated incidents in a manner unfavorable to Papen, I
shall briefly consider this period also.
We see Papen engaged in a steady struggle against the illegal movement.
The charge that he had conspired with it is best refuted _ad absurdum_
by the fact that plans made by the illegal movement, and stated by
Foreign Minister Schmidt to be genuine, reveal that members of this same
illegal movement had planned to murder Papen. The documentary evidence
from the available reports sent by Papen to Hitler also leads in one
direction only. This, too, is absolutely clear proof, since the routine
reports regularly made to Hitler certainly exclude any possibility of
deliberate deception of the public. It is regrettable that the reports
could not be found in their entirety so as to furnish us with a clear
and complete historical picture of Papen’s activities. Only a fraction
of the reports are in our hands. But if Papen sent carbon copies of all
his reports abroad at the end of his period of activity, as the evidence
has shown, he surely could only have done it in order to justify his
policy of appeasement in the eyes of history. This constitutes
absolutely clear proof that his policy, as shown in the complete series
of reports, must have been a policy contrary to the development affected
by other quarters in March 1938. All the witnesses who have appeared in
court, and who could give information on conditions in Austria, have
stated under oath that Papen’s policy was a policy of appeasement, and
that he opposed any attempts made by the illegal movement to interfere
in politics.
In view of these facts, what can be concluded from the presentation of
the Prosecution? That Papen, by reason of his position as German
Ambassador, and in accordance with the state treaty concluded with
Austria, had to maintain a certain external connection with members of
the Austrian Nazi movement—a connection, which was in no way secret,
which was purely for purposes of observation, and which was necessary to
enable him to fulfill his obligations to report to Berlin on actual
conditions in Austria? If he had actually collaborated with the illegal
movement in the way the Prosecution state he did, this would most
certainly have been mentioned in his reports to Berlin. He does not work
out any secret plans with the illegal movement. On the contrary, we see
him openly negotiating with the Austrian Government over the part to be
played by the National Opposition in the work of the Government, as
agreed upon in the July treaty. Finally, since we have before us in
Rainer’s report the written history of the illegal movement, we see
their activities proceeding during those years without the slightest
co-operation or support from Papen.
What conclusions can be drawn to the disadvantage of the defendant from
the fact that he was interested in the activities of the Austrian
Freiheitsbund, when this organization is described as representing a
non-Nazi trade union, an Austrian organization which was thought to be
willing to follow Schuschnigg and in support of his Cabinet? What
conclusions can be drawn to the disadvantage of the defendant from the
fact that he also watched the situation of the Government in Austria and
reported on it to Berlin? Or when, in this connection, he expresses a
wish that this or that combination may favor the development of friendly
relations with Austria?
During the cross-examination the Prosecution presented reports from
offices abroad, which Papen forwarded to Berlin. They believe that Papen
had made use of the contents of these reports. This supposition must be
wrong. The object of sending reports made by the foreign secret service
to Berlin for purposes of information is clear. In addition, the
following facts must be established: Papen also made a special point of
forwarding to Berlin those documents containing criticism of conditions
in Germany which came into his hands; the witnesses Gisevius and
Lahousen have pointed out that Hitler was incorrectly or insufficiently
informed by his closest co-workers; the critical reports originating
abroad, which Papen sent directly to Hitler, could fulfill the aim of
drawing Hitler’s attention to abuses and of making him abolish them, and
they were intended to do so—this is particularly often the case with
statements about anticlerical conditions in Germany. The same applies to
the reports on the activity of the Gestapo in the Tschirschky
case—these have already been mentioned in the course of
cross-examination. Some of Papen’s regular reports to Hitler also deal
with conditions in neighboring states. Inspection of their contents
shows that these reports deal entirely with problems directly connected
with Austria’s foreign policy in the Balkans and, therefore, formed part
of the assignment of the accredited Ambassador in Vienna.
Finally, Messersmith’s affidavit must be considered. He describes events
which happened 10 years earlier in Papen’s case, apparently entirely
from memory. Time and information acquired later have obviously clouded
the picture so completely, for example, that Papen’s explanations of his
assignments in the southeastern area, contained in both affidavits, are
two altogether different accounts. Apart from this, I may limit my
criticism to the statement that the contents of the affidavit run
counter to every rule of experience and logic. A diplomat cannot have
revealed the secret aims of his policy to the representative of another
state who meets him with deliberate reserve. It is impossible that Papen
should, as Messersmith says elsewhere, not only have revealed to him his
alleged plan to overthrow Schuschnigg—to whose Government Papen himself
was accredited—but that he should even have spoken of it in public. It
is impossible that such disclosures should have produced no reaction,
and that they should have been written down for the first time in an
affidavit made in 1945. No judgment can therefore be based on these two
affidavits, even apart from the fact that their contents are refuted by
the other evidence submitted with regard both to Papen’s plans and to
his actions.
I return to Gavronski’s questionnaire, which was read
yesterday—Document Papen-106. The answers which the Polish Ambassador
Gavronski gave to this questionnaire form a thorough refutation of the
Messersmith affidavit. This testimony from the diplomat of a country
with which Germany was at war, from September 1939 on, seems
particularly remarkable. Gavronski had an opportunity of observing Papen
during the whole period covered by his activities in Vienna, from 1934
to 1938. In answering the questionnaire, the year 1937 was given by
mistake, instead of 1934—which is correct—as the beginning of
Gavronski’s activities in Vienna. All the charges which Messersmith
makes against Papen—his collaboration with the illegal Nazi movement,
the carrying on of intrigue, the plan to overthrow Schuschnigg’s regime,
the policy of aggression in the southeastern area, the partition of
Czechoslovakia between Poland and Hungary—are all refuted by
Gavronski’s testimony.
In addition, I refer to Rademacher von Unna’s affidavit, part of which
was read yesterday. By his refusal to enter into a secret agreement with
an Austrian minister, Papen shows very clearly that he was not engaged
in subversive activities, since he refused to take advantage of this
propitious and convenient opportunity. I believe this suffices in regard
to the period during which Papen acted as Ambassador Extraordinary in
Vienna.
In addition, the Prosecution have taken into consideration Papen’s
co-operation in the discussion at Berchtesgaden on 12 February. This
Berchtesgaden conference was not the beginning of a new policy, but the
result of previous development. In conversations held months before,
Papen and Schuschnigg had already decided that a meeting between the two
statesmen would be desirable in the near future. The July treaty had
naturally left many points of difference unsettled. The testimony of the
witness Guido Schmidt has given us a clear picture of the situation; a
numerically strong opposition party, officially prohibited but tacitly
tolerated—as a result of actual circumstances—and looking for all its
ideological guidance to the man in Germany who was—spiritually at
least—its leader. In Germany the leader of the Party was, at the same
time, head of the state. From the standpoint of foreign policy, it was
necessary to separate the parties in both countries. The inner
ideological unity was bound, however, to lead to repeated disputes. The
Austrian Government accordingly maintained an understandable attitude of
reserve, and made constant efforts to prevent this movement from
increasing its influence in the administration and Government. The
questions arising from the July treaty were in practice treated in a
manner suitable to these interests. It was natural that Austria should
try to apply the stipulations of the treaty on as restricted a scale as
possible. It was only natural that Germany should wish to make the
fullest possible use of the opportunities offered by the treaty. The
establishment of direct contact between the responsible heads of both
countries—and in the case of Germany this meant also the head of the
Party—could only be regarded, therefore, as reasonable. Papen’s recall
on 4 February threatened to interrupt this development. Perhaps the
adoption of the extremist line of policy, which was expected, would
cause the indefinite postponement of a meeting of this kind, which it
was hoped would speed the removal of existing difficulties. To say the
least of it, the results to be expected at a later date, and in a tenser
atmosphere with an extremist successor, might be very different from
those which Schuschnigg and Papen were hoping to attain. It is therefore
perfectly understandable that, when discussing business with Hitler
during his farewell visit on 5 February, Papen, although he had already
been recalled, agreed to make definite arrangements for the prospective
conference and to accompany the Austrian delegation to Berchtesgaden for
this purpose.
The Prosecution reproach Papen with the fact that the program for the
subsequent talks had already been settled at that time. Contrary to
this, Papen testified in his interrogation that he was only instructed
to arrange the discussion in order to clear up all points of difference
on the basis of the July treaty. The Prosecution have failed to submit
proof for their claim to the contrary. In view of Hitler’s personality,
no conclusions can be drawn from the events of 12 February as to his
real thoughts when such a meeting was first mentioned on 5 February,
much less as to how much of his plans he had made known. The evidence
has shown that the points voiced by Hitler on 12 February are identical
with the demands raised by the Austrian National Socialists immediately
before the discussion and transmitted to Hitler through their own
channels. From this it can be seen that the subject of conversation
chosen by Hitler in the discussion of 12 February could certainly not
have been decided upon on 5 February. If the Austrian Nazis hurried to
Berchtesgaden ahead of Papen with their demands, this refutes the
Prosecution’s opinion that Papen had conspired with Hitler and the
Austrian party. In this case he himself would probably have been the
best liaison between the Party wishes and Hitler. This is further
emphasized by the testimony of the witnesses Seyss-Inquart and Rainer,
who have stated clearly that they had no contact with Papen during this
period. Rainer also points out in his report that Papen believed that
the fact of the prearranged discussion was kept secret from the Austrian
party.
In order to incriminate Papen, the Prosecution also claim that at the
reception of the Austrian delegation on the German-Austrian frontier he
had called Schuschnigg’s attention to the presence of generals. Whether
this is really in accordance with the facts was not disclosed by the
evidence. The sole evidence which can be used in respect to this is the
testimony of Schmidt. The latter was no longer in a position to state
with certainty whether Papen had spoken of one general, namely, Keitel,
who is known to have remained constantly in Hitler’s entourage after
taking over his new office—or of several generals. Papen himself does
not remember whether, and in what form, he made such a remark to
Schuschnigg at the time. Neither does he remember whether he was at all
aware of the presence of generals at the time. It is quite possible that
it came to his knowledge on the night spent in Salzburg, where he stayed
at a different hotel from that of the Austrian delegation. In any case,
we cannot overlook the fact that even if Papen had made the statement
alleged by the Prosecution, this statement was made before the visit,
and he therefore did not take part in any attempt at intimidating the
Austrian delegation and taking them by surprise.
The part he took in the discussion has been clarified by the evidence.
Hitler was in sole command and, with a brutality which surprised even
those who knew him, tried to impress Schuschnigg. Technical details were
negotiated with Ribbentrop. Papen was present more or less in the
capacity of a spectator, which also was accounted for by the fact that
he no longer occupied an official position. The testimonies of those who
attended the conference are unanimous in stating that he viewed his part
in the proceedings as that of exerting a modifying influence, which the
circumstances made necessary.
His position must be taken into consideration; he saw his project doomed
to failure through Hitler’s behavior, which was such as no reasonable
human being could have anticipated. He saw a man with a naturally
violent temper in his excitement betray his lack of all the qualities
necessary for a reasonable discussion at a conference of statesmen. He
heard Hitler’s threats, and was bound to feel that he was determined to
let things take an irrevocable course should the negotiations be broken
off abruptly. Considering the situation, therefore, the fact that
certain concessions were obtained—Hitler acquiesced with regard to the
Army Ministry, the economic demands, and the postponement, achieved
after a hard struggle, of the final settlement until ratified by the
Austrian Government and the Federal President—was the best possible
solution of the dangerous situation. Although in this point Papen agreed
with the Austrian statesmen, who undoubtedly were only prepared to sign
the document provisionally while safeguarding the interests of their
State to a reasonable degree in the prevailing conditions, Papen cannot
be charged with approving and intending the result from the outset.
Hitler’s opinion of Papen’s previous activities in Austria and the part
he played in the conference at Berchtesgaden is best shown by the fact
that no further post of any kind was assigned to him in Vienna. It is
highly unlikely that Hitler would not have given some assignment to a
man who was wholeheartedly and actively interested in the result of the
conference at Berchtesgaden. He would not have replaced him by new men
from Berlin, nor, at a time when the diplomatic situation was becoming
increasingly complicated, would he have dispensed with the services of
the man who, by reason of his years of service, had an intimate
knowledge of all the conditions. The personal contacts with Austrian
statesmen, which qualified him more than others to continue working on
Hitler’s plans, would certainly have been utilized. If the Prosecution
were correct in interpreting as deceitful the maneuvering by which Papen
attempted to bring about an understanding during the discussion in
Berchtesgaden, there is little doubt but that Papen would have been
permitted to continue working along these lines, and would not have been
replaced by men instructed to carry on a program along much more radical
lines.
Papen’s memorandum on his farewell visit to the Prime Minister is
revealing. A man who in his own commentary to Berlin passes on
Schuschnigg’s view—that to some extent he had acted under pressure in
Berchtesgaden—as “worthy of note” is not likely to have played an
active part in the coercive negotiations.
The record of evidence has proved that Papen held no further public
appointments for some time afterward. The new Chargé d’Affaires,
Freiherr von Stein, a pronounced National Socialist, took charge of the
Embassy. He was assisted by Keppler, a close confidant of Hitler. Papen,
on the other hand, made his farewell calls and went to stay at
Kitzbühel, a winter sport resort.
In the meantime things grew more and more critical. The plebiscite
announced by Schuschnigg led to a development the proportions of which
perhaps even Hitler had not intended. The visit of Seyss-Inquart and
Rainer to Papen on 9 March was only a casual one; there were no
deliberations of any kind and no decisions were made. If Papen, as
Rainer asserted, expressed the view that, considering the way in which
the questionnaire was formulated, no decent Austrian could be expected
to say “no,” and was therefore bound to follow Schuschnigg’s
instructions, that suffices to indicate the contrast between Papen’s
views and those of the Austrian Nazis and the intentions which were
subsequently made plain in Berlin.
If, in conclusion, I may still refer to Papen’s presence in Berlin on 11
March, I must say that even when I consider the matter in retrospect, I
can give no clear explanation for Hitler’s desire to have Papen in
Berlin. There might have been many reasons. If Hitler had been, at that
time, already determined to force the solution which was later
adopted—although there may be doubts as to that—the reason might have
been that he did not trust this representative of appeasement in Vienna,
or that he assumed that the desperate position in which they found
themselves might induce the Austrian Government officials to turn to
him, and that with Papen’s help proposals for a settlement might have
been made. I may remind you of a similar situation prior to the
beginning of the campaign against Poland, when Hitler was afraid “some
swine might still come along at the last minute with a proposal for an
understanding.” On the other hand, it is also quite conceivable that
Hitler wished to have Papen in Berlin so that, in the event that the
Austrian Government yielded, he might not be deprived of the advice of a
man who was familiar with conditions. As far as the Indictment is
concerned, any attempt to understand Hitler’s real motives is
superfluous.
The sole deciding factor is constituted by Papen’s actions while he was
in the Reich Chancellery. Upon his arrival he expressed to Hitler his
desire that the tension be lessened by a postponement of the plebiscite.
His attitude toward later events is documented by his comments on the
military preparations and the cancellation of the order to march in. The
shorthand notes of the telephone conversations carried on by Göring
afford us a vivid picture of the events in the Reich Chancellery. His
testimony shows that, in the main, he was the driving force, and
occasionally went even further than Hitler intended. He emphasized that
he had all along made consistent efforts to find a solution, and that he
now needed no further advice and no further time to reflect on his
decision. Seherr-Thoss’ affidavit makes clear Papen’s attitude on the
evening of the day in question. He remarked to a circle of friends that
he had advised against marching in, but that Hitler, against his advice,
had just been “mad enough to give the order to march in.”
Finally, we find another clear expression of Papen’s attitude in his
conversation with the witness Guido Schmidt, which took place years
later. At that time, the annexation of Austria had long been a
historical fact, and was considered by most Germans to be a great
political achievement. Papen, on the other hand, severely criticized
Hitler’s method and acknowledged anew those fundamental principles of
legality and faithfulness which in this case had been abandoned—a step
which, in the long run, would prove harmful to Germany.
My conclusion is that—independent of the legal question of whether the
case of Austria can be dealt with at all within the limitations of the
Charter—Papen’s defense is completed by the production of evidence to
the effect that the defendant himself played no part in bringing about
the march into Austria, nor did he prepare the way for it by a policy
directed to that end; and that his activity in Austria was exclusively
directed toward the aim which he assumed on his appointment on 26 July
1934—a policy which was to restore friendly relations between the two
countries—a lawful aim which had no connection with a special or
general policy of aggression.
I should like to make the following remarks, which are not in my
manuscript. This aim taken over by Papen is in no way contrary to the
hopes, cherished since 1918 by the overwhelming majority of Germans and
Austrians, for some form of close constitutional union as the result of
a normal development. It was clear that in view of the existing
restrictions imposed by the peace treaties, a good many difficulties
would have to be overcome. But was Papen not in a position to assume
with a clear conscience that the parties to the treaty would not refuse
to sanction a wish of both peoples, a wish furthered by the political
and economic impossibility of maintaining the _status quo_? Was this not
the moment to apply the principle of the self-determination of peoples,
the great principle of the twentieth century? The many opinions
expressed abroad at the time—his talk with Ambassador Sir Nevile
Henderson, mentioned in Papen’s report of 1 June 1937, Defense Exhibit
Papen-74, Document 2246-PS; the attitude of neighboring countries, which
is also shown in the report, and, finally, the progress made in handling
the question of reparations—might lead him to hope that the solution
might some day be found in an international understanding. The first
necessity for this was the initiative of a sovereign and independent
Austrian Government. This could be based only on a genuinely friendly
relationship with Germany. Papen’s mission might, therefore, be a basis
for the fulfillment of the national wishes publicly expressed in both
states.
I continue from my manuscript.
The subsequent period is not taken into consideration by the
Prosecution; but the Defense must deal with it for the purpose of
refutation. It is a simple matter to establish facts, in connection with
this period, which prove that the assertions made by the Prosecution,
with regard to the earlier period, must be false. The Prosecution drop
Papen at the end of his activities in Vienna and give no explanation for
his inactivity since that time. There is no apparent reason or
occurrence which might have induced such a change in conduct on the part
of the alleged conspirator.
We now come to the period covering the immediate preparations for war
and the outbreak of the war itself. The Prosecution assume that, at this
time, in spite of the numerous opportunities which must have been open
to him, the former conspirator Papen abandoned his previous course. The
Prosecution must find some explanation for this transformation if the
arguments by which they attribute a criminal intent to the actions of
the earlier period are not to be considered inconclusive.
After the incorporation of Austria, Papen retired to the country and
remained there, aloof from public life for over a year, until April
1939. This fact is significant in the light of the situation at that
time. The events of 4 February 1938 were doubtlessly responsible for the
adoption of a more rigorous course in German foreign policy. In the
opinion of the Prosecution Papen was Hitler’s willing tool in the
actions which preceded and paved the way for this policy. If this were
the case, the results achieved by Papen would cause him to be regarded
as a hundred-percent successful diplomat. But this most successful
diplomat and conspirator does not proceed to some place where he can
continue his activities, and where similar preparations might be
necessary as, for example, the Sudetenland. He is not sent to some
place, where the main strands of European politics cross—in Paris,
London, or Moscow, where, on the basis of his international reputation,
he would undoubtedly seem the most suitable man to support the Hitlerite
policy. This man retires from public life at a time when Hitler’s whole
foreign policy, the Sudeten crisis, the incorporation of Czechoslovakia,
and the preparations for the war against Poland were creating great
political tension. The fact that Hitler did not even consider his
services at such a time makes it quite clear that Papen was not a
conspirator and not even a follower of Hitler and that he did not even
bring about the first success won by the Hitlerite policy—the
incorporation of Austria.
From this angle, too, it is significant that Papen was first called upon
when there was no question of occupying a country or of preparing for
intended operations. Papen was called upon at a time when the Italian
policy of expansion into Albania was causing difficulties, and
complications with Turkey were to be feared. So there he had a clearly
defined mission, that of maintaining peace.
The Prosecution is unable to utilize his activities in Ankara in support
of his case; it cannot refrain from judging Papen’s acceptance of the
post unfavorably. I am therefore compelled to go into this point also.
Papen was very reluctant to accept this new appointment. He had already
refused the appointment twice, in more peaceful times on general
grounds, and because he no longer wished to accept any official
position. Now he sees reasons which he can no longer refuse to
acknowledge. He believes it his duty to devote himself to this new task.
The entire political situation was extremely strained after March 1939.
Even a secondary issue might easily cause a large-scale conflict. A
conflict between Italy and Turkey could, if existing treaties were
honored, lead to a general war. If by his activities he could, to this
extent at least, prevent war, Papen must have believed himself justified
in accepting the assignment. He was confronted with the problem which
confronts all those called upon to play a part in a system of which they
disapprove. To stand aside and to remain completely passive is, of
course, the easier way, especially if there is no other reason which
might induce the person in question to accept the post. It is much more
difficult to take over a mission which forms part of a general policy of
which one disapproves, but has in itself an aim worthy of attention. And
if this mission is of such importance that it may prevent possible
outbreak of war, the decision to accept it is understandable and
praiseworthy. Private interests and feelings must take a back seat if
there is even the remotest possibility of attaining such a goal.
When we consider briefly what Papen really did after taking over this
mission to Ankara, and see that, as a result of his intervention in the
spring of 1939, it was possible for Germany to exercise a moderating
influence on Italy and for war to be avoided; and if we further consider
that Papen succeeded later on in preventing the war from spreading to
Turkey and the other southeastern countries, we can only say, in the
light of events, that in taking over the mission against his personal
feelings, he made the right decision.
During the presentation of evidence we saw the extent of Papen’s efforts
to secure a peace through compromise as early as the year 1939. We must
therefore approve his acceptance of the mission for this reason also—no
matter what final success might crown his efforts, and even if there was
only the smallest possibility of attaining the desired goal. Finally,
his acceptance of such a position would be justified from the moral
point of view if he had had even an infinitesimal success, as, for
example, the rescue of 10,000 Jews from deportation to Poland which has
been confirmed by Marchionini’s affidavit.
In this connection I want to discuss a misunderstanding which might
arise from the judicial inquiry with reference to this affidavit.
Marchionini points out in his affidavit that the lives of the Jews
concerned were saved by Papen’s intervention. On being interrogated
Papen confirmed the correctness of the affidavit. This confirmation
corresponds also to the facts. This does not mean, however, that the
significance of that action, as recognized by Marchionini today, and
mentioned for that reason in his affidavit, was recognized at the time.
Papen knew, of course, that this deportation to Poland for an unknown
purpose, and to an unknown destination, was an extremely serious matter.
For that reason he intervened. Like Marchionini, he did not know what he
now knows very clearly—namely, that the path of these people was
destined to lead them not into deportation and hard labor, but straight
to the gas chambers.
Now I should like to refer to Document Papen-105, the questionnaire
filled out by the last apostolic nuncio in Paris, Roncalli, who
describes in detail from his own personal knowledge the steps Papen took
in Church affairs and his attitude toward them.
His Ankara activities have been described in detail by the witnesses
Kroll and Baron von Lersner. They clearly indicate a unified peace
policy, a peace policy which was independent of the military and
political situations of the moment, and which laid stress on a peace
through compromise even at the peak of the German victories. Rose and
Kroll state that Papen was horrified by the outbreak of the Polish war,
and that he condemned it from the first.
How can this attitude and these activities be reconciled with the
assertions of the Prosecution? Papen is supposed to have brought about
the war in conspiracy with Hitler. The Prosecution believe they can
deduce his guilt in this criminal act from his behavior years before the
war. No facts have been submitted to show what might have turned the
conspirator Papen into an advocate of peace. The Prosecution have rested
their accusations on the insecure foundation of deduction and omitted
examining whether their assertions were even remotely in accord with the
whole personality of the defendant. In view of the nature of the
Indictment, it is not enough to solve the problem by crediting him with
a split personality and an opportunist attitude. The Indictment includes
crimes of monstrous proportions. Such an Indictment must also take into
consideration the personality of the accused. Participation in such
conspiracy is only conceivable in the case of a man who identifies
himself completely with the doctrines discussed in the proceedings under
the name of “Nazism” and accepts their full implications. A conspirator,
in the sense of the Indictment, can only be a man who has dedicated his
whole life and personality to that aim. He must be a man no longer
conscious of even the most elementary moral obligations. A personality
of this kind cannot be a temporary phenomenon; the predisposition to
such a crime must be present in the character of the accused.
In contrast to the distorted picture of Papen’s character drawn by the
Prosecution, his true personality has appeared very clearly in the
course of these proceedings. We see a man whose origin and education are
on traditional and conservative lines—a man of patriotic feeling,
conscious of responsibility toward his country, and who for precisely
these reasons is naturally considerate of his fellows. His personal ties
with Germany’s western neighbors and his knowledge of the world suffice
in themselves to prevent him from looking at things from a one-sided
point of view—according to his own patriotic wishes. He knows that life
requires understanding and readiness to understand. He knows that
international life, too, is built on sincerity and faith, and that one
must stand by one’s word. We have before us here a man who, on account
of his deep religious feeling, the principle on which all his actions
are based, must necessarily oppose the ideology of National Socialism.
We have followed his political career and have seen that through all the
periods of his activity he held fast to his basic political creed, which
was built on these elements. In accordance with this fundamental
principle and with full consciousness of his responsibilities, he did
not evade any of the tasks assigned to him. And though at the end we
witness the collapse of his hopes and the failure of his endeavors, this
is no touchstone for the sincerity of his convictions.
To arraign such a man at all under the charge of committing a crime in
the sense of the facts established in the Charter was surely only
possible on the basis of the simplifications which an Indictment on the
count of conspiracy offers to the Prosecution from the legal point of
view. Considering the facts in the case against Papen, even this
interpretation must fail. The Prosecution have failed to prove that
Papen, at any time, was involved in the alleged conspiracy. The truth is
opposed to this. In the evidence offered in refutation, facts are
established which make it impossible to connect his person even remotely
with the facts of the Indictment.
The final conclusion is obvious: Franz von Papen is not guilty of the
charge brought against him.
THE PRESIDENT: The Tribunal will adjourn.
[_A recess was taken._]
THE PRESIDENT: I call on Dr. Flächsner, Counsel for the Defendant Speer.
DR. HANS FLÄCHSNER (Counsel for Defendant Speer): Mr. President, may it
please the Tribunal:
The Prosecution have charged the Defendant Speer with violations of all
four points of the Indictment which essentially covered the stipulations
of Articles 6(a) to (c).
The French Prosecution, which substantiated more definitely the
individual charges against the Defendant Speer, refrain from charging
him with the violation of Article 6(a) of the Charter and demand only
the application of Articles 6(b) and (c) against him. However, since the
legal concept of conspiracy has frequently been dealt with during the
oral proceedings by citing the person of the Defendant Speer as an
example, and since it was asserted that the Defendant Speer also had
made himself guilty within the meaning of Article 6(a) of the provisions
of the Charter, details must be given by way of precaution.
The defendant has, in addition, been charged with the planning,
preparation, launching, or conduct of a war of aggression, or a war
violating international treaties, although at the time when the
defendant assumed the office of Minister of Armaments—which was only
expanded to a Ministry for Armament and War Production 1½ years
later—the German Reich was already at war with all the countries to
which it capitulated in May 1945. Thus, at the time the defendant took
charge of government affairs, all the events mentioned under Article
6(a) had without exception taken place, and the Defendant Speer’s
activity did not alter the existing situation in the slightest degree.
The defendant had done nothing at all to bring about this situation. His
previous activity was that of an architect, who occupied himself
exclusively with peacetime construction and did not contribute by his
activity either to the preparation or the launching of a war violating
international treaties. I refer to my document book, Page 19, Document
1435-PS.
If the circumstances which Article 6(a) of the Charter materially and
legally characterizes as criminal acts were applied to international
law, and if the individual criminality of persons who bring about these
conditions were generally recognized in international law, the Defendant
Speer in my opinion could still not be held responsible for these
conditions; for not the slightest evidence has been produced during the
Trial thus far that Speer contributed in the least toward bringing about
these conditions. In this connection we must consider that criminality
of attitude requires that the person in question must have contributed
in some way to bring about the circumstances which have been declared
punishable, that is, he must have functioned as a cause of the result
which was declared punishable. If, however, as in the case under
consideration, the Defendant Speer entered the Government without having
contributed anything at all to the so-called Crimes against Peace, he
cannot be charged with criminal responsibility for this, even if such
responsibility were applicable to other members of the Government.
The Prosecution have asserted that by joining the Government the
defendant had accepted, or rather approved of, the preceding Crimes
against Peace. This is a concept taken from the field of civil law, and
it cannot be applied to criminal law. Criminal law applies only to
circumstances consisting of actions which serve to bring about the
circumstances declared punishable. Nor is this altered by the
introduction of the legal concept of conspiracy. In this connection
reference may be made to Dr. Stahmer’s detailed statement on conspiracy.
The legal views set forth in that statement are also made the subject of
my own statement, I refer to it, and to Professor Jahrreiss’ statements,
in order to avoid repetition. It can, therefore, be confirmed that the
Defendant Speer cannot be charged with a so-called crime against peace.
The personal interrogation of the defendant and the cross-examination
regarding his activity in the Party have shown that Speer, by virtue of
his position as an architect, exercised purely architectural and
artistic functions even in the Party set-up. Speer was the Commissioner
for Building in the Hess staff; it was a purely technical assignment and
had nothing at all to do with any form of preparation for war. The
Party, which strove to seize and influence all the vital functions of
the people, had created the position of Commissioner for Building, to
insure uniformity in Party buildings. In their building projects, the
Gauleiter and the other Party offices could confer with this office, but
they availed themselves of the opportunity only to a very limited
extent.
THE PRESIDENT: Dr. Flächsner, the Tribunal think it might be
appropriate, at some time convenient to you, if you were to deal with
the question of the meaning of the words “waging of warfare of
aggression” in Article 6(a). I don’t want to interrupt you to do it at
this moment in your speech, but at some time convenient to you the
Tribunal would like you to give your interpretation of the words in
Article 6(a) “waging of a war of aggression.”
DR. FLÄCHSNER: Yes, Mr. President. Perhaps I might return to this point
later, Mr. President, when I have concluded this topic.
Naturally, it was for purely artistic reasons that the Party took over
responsibility for building. It strove to give its buildings a uniformly
representative character. Considering the peculiar nature of the
architectural feeling, it was natural that each architect should follow
his own line in solving the problems put to him. The activity of the
defendant as Commissioner for Building was, therefore, relatively
restricted and of minor importance, since he did not even have an office
of his own at his disposal. It would be erroneous to try to deduce
therefrom any participation by the defendant in any Crimes against the
Peace. The same is true of the defendant’s other functions prior to and
during the war up to his assumption of office as Minister.
Although the defendant was given the task of replanning the towns of
Berlin and Nuremberg, this activity had nothing at all to do with Crimes
against Peace. On the contrary, his activities must rather be regarded
as hampering war preparations, as his task required large quantities of
raw materials and equipment which might otherwise have been used
directly or indirectly for rearmament. The construction projects
assigned to Speer were, moreover, calculated and planned far ahead. They
could only give Speer the impression that Hitler was counting on having
a long period of peace. The defendant cannot, therefore, be said, prior
to his assumption of office as Reich Minister, to have contributed
directly or indirectly to the emergence of the events characterized by
Article 6(a) of the Charter as Crimes against Peace. The fact, too, that
the defendant was a member of the Reichstag after 1941, cannot be quoted
in support by the Prosecution because, as the Prosecution themselves
pointed out, the Reichstag sank into complete insignificance under the
totalitarian regime and became merely an institution which accepted and
acclaimed the Führer’s decisions. Responsibility for war guilt is out of
the question here, too; for no activity on the part of the Reichstag in
connection with extending the war to the Soviet Union and the United
States can be recognized.
The French Prosecution, therefore, rightly refrained from charging the
defendant with the violation of Article 6(a) of the Charter.
The Prosecution further charge the Defendant Speer with having
participated in War Crimes committed during his term of office by
forcibly transferring workers from the occupied countries to Germany,
where they were employed for the purpose of warfare or of producing war
materials. The following should be said in this connection.
The Prosecution charge the defendant with violations of Article 52 of
the Hague Convention on Land Warfare, which states that services may
only be demanded of nationals of the occupied country to cover the
requirements of the occupying forces, that they must be in proportion to
the resources of the country, and that they must not oblige the persons
concerned to take part in military actions against their native land. In
Article 2, the Hague Convention on Land Warfare lays down that all
countries participating in the war in question must be
signatories—general participation clause (Allbeteiligungsklausel). As
the Soviet Union was not a signatory of the Convention on Land Warfare,
the latter could apply to conditions created by the war against the
Soviet Union only if the legal principles laid down in the convention
were considered as universally valid in international law. We must
start, therefore, from the principle that those areas belonging to
signatories of the Hague Convention on Land Warfare must be judged on a
different legal basis from areas belonging to nonsignatories of the
treaty.
In examining the question, we must first decide whether the deportation
of laborers from territories occupied in wartime by an enemy power can
be justified on the basis of Article 52 of the Hague Convention. Article
52 constitutes a limitation of Article 46 of the Hague Convention on
Land Warfare, which lays down the principle that the population of
occupied territories and their property are in general to be subjected
to as little damage as the necessities of war will allow. Starting from
this principle we must examine whether it involves the absolute
prohibition of deportation for the purpose of securing labor for the
essential war economy of a belligerent country. It must be remembered in
this connection that the situation is altered if the deportation carried
out by the occupying belligerent state is in accordance with agreements
made with the government of the country occupied. The Prosecution have
defended the view that such agreements are legally invalid because they
were made under the pressure of the occupation and because the
Government existing in France during the time of the occupation could
not be considered as representing the French nation.
The first point does not support the Prosecution’s contention. The
contents of treaties concluded under international law will always be
influenced by the respective power of the contracting parties. In every
peace treaty concluded between a victor and a vanquished state, this
difference of power will be reflected in the contents. This is not,
however, contrary to the nature of treaty-making.
The second point, by virtue of which the Prosecution reject the plea of
an agreement between the German Government and the French Government,
then in power, relating to the assignment of labor, is equally
ineffectual. The so-called Vichy Government, then in power, was the only
government existing in French territory; it was the lawful successor of
the government in office before the occupation—and from the point of
view of international law—by the fact that states which were at that
time not yet involved in the war maintained diplomatic relations with
it.
It cannot, moreover, be assumed that the willingness shown by the French
Government in this agreement to co-operate with the German Reich, which
was then gaining military victories, ran counter to the real opinion of
the French people. Reference can be made in this connection to Document
R-124, Page 34 of my document book. Particular attention must be paid to
the economic situation of occupied France at the time. After France’s
withdrawal from hostilities, the total blockade was extended to cover
the whole of French territory in Europe, with the result that raw
materials not produced in France were no longer obtainable, and
production came to a standstill. Important sections of French production
were, in this way, put out of action, and many workers deprived of the
means of earning a living. In addition, the French Government did not
pledge themselves unconditionally to send labor to Germany, but made
this dependent on concessions such as the liberation of prisoners of
war, _et cetera_.
Whether, and in what measure, the hopes placed in the treaty by the
French Government were actually fulfilled, is irrelevant in determining
whether the treaties in question were authentic treaties or not. From
the legal point of view, there is no doubt that these agreements have
the character of treaties. From this point of view, there is no
justification for the accusation made by the Prosecution that workers
were taken from occupied French territory against their will and,
therefore, illegally.
No judgment of the legality of the measures relating to the workers from
Belgium and Holland can be based on agreements such as those concluded
between the German and French Government offices, since in those
countries the Government had left the country, and consequently no
political authority existed. The general secretaries remaining there
could not be considered as representatives of the Government, and the
decrees regulating the dispatch of workers to Germany were enacted by
order of the Reich commissioners or the military commander. Dr.
Steinbauer in his exposition on the Defendant Seyss-Inquart’s activities
in Holland has already explained in detail that particular rules must
apply to those countries and to the dispatch of laborers from them. In
order to avoid repetition, I refer you to these remarks.
With regard to the Eastern countries, we must start with the fact that
the Soviet Union did not sign the Hague Convention on Land Warfare. It
remains, however, to be seen whether the principle laid down in Article
46 of the Hague Convention on Land Warfare, with reference to the
treatment of civilians in war, and the case of occupation of a
belligerent country by the enemy, must not be considered as a
universally valid international law and therefore applicable even if the
belligerent country concerned is not specifically a party to the Hague
Convention on Land Warfare. An examination of this question would show
the deportation of workers from occupied territories to be illegal
unless some special factor emerges to cancel its illegality. A state of
emergency in the sense of international law can be considered as one
such factor. It is true that it is a matter of international law whether
and in what measure such an emergency can legalize a practice which is
in itself illegal; but such a state of emergency must be admitted in
cases when the state is fighting for its bare existence.
It may be considered that after the Allies had declared the
unconditional capitulation of Germany to be their goal such a state of
emergency existed for the German State, since there remained no doubt
that the enemy intended to destroy the existing German State to its very
foundations. This state of emergency may, however, be considered as
existing at an earlier period, when it became clear that the war had
ceased to be a settlement of differences between two states, in the
sense of the Hague Convention on Land Warfare, and had become a war
aimed not only against the fighting forces of the belligerent nations
but also, and primarily, at their economic forces, and thus at their
so-called war potential.
The Hague Convention on Land Warfare is based upon a conception of war
which was already out of date in the first World War and much more so in
the second. If in the first World War the belligerents sought to attack
each other’s economy by blockade and counterblockade, this is all the
more true of the second World War, in which, in addition to the more
indirect effects of the blockade, they introduced the element of direct
attack on the enemy by destroying his productive installations by means
of aerial war. In contrast to the conception of war on which the Hague
Convention on Land Warfare is based, a complete change has come about.
In view of the fact that a country can only resist an adversary who is
well-equipped from the technical point of view if it has at its disposal
an unimpaired capacity for production, the main objective in this war
was the destruction of the enemy’s capacity for production. This was the
aim of the British blockade not only of Germany but of every country in
the German sphere of influence. Dr. Kranzbühler has already discussed
the questions connected with this subject. I herewith refer to the
relevant parts of his statement.
From this point of view, too, the war in the air was waged primarily not
only to attack German national territory but also to destroy production
capacity and possibilities in the occupied territories. Through
continual air raids, the aerial war was directed against economic
targets in France, Belgium, Holland, Czechoslovakia, Poland, and
Austria, and had as its further aim the interruption and disruption of
the whole system of communications—not only on the front and
immediately behind it but also hundreds of kilometers away from it—in
order to paralyze vital functions of the adversary. The Allied air
offensive against Japan is a particularly clear indication of this. This
war went beyond the bounds of the Hague Convention on Land Warfare. It
ceased to make any further distinction between the adversary’s territory
proper and the occupied territories, which were likewise included in the
enemy blockade. In this war which sought not only to destroy the
adversary as a nation but also to ruin its economic system and its power
of production, we may speak of a real national emergency.
When the Defendant Speer was appointed Minister, the economic war just
described was in full swing on both sides. In fact, the task assigned to
Speer’s department was that of solving the production problems caused by
it. Speer, therefore, found himself in the thick of this war of
economies; and we now have to decide whether, and to what extent, the
measures taken on the German side were capable of alleviating the state
of emergency.
THE PRESIDENT: Dr. Flächsner, I would like to ask you this question. Is
there any communication between states, either at the League of Nations
or elsewhere, since the war of 1914-18, which suggests that the Hague
Rules on Land Warfare were no longer applicable? Perhaps you would
consider that question and answer it at your convenience?
DR. FLÄCHSNER: Mr. President, I can answer this question immediately in
the negative. In the period between the two wars, these problems were
dealt with only very superficially and, as far as I am acquainted with
the facts, the questions considered lay in the sphere of naval warfare
and also land warfare in connection with the treatment of prisoners of
war. The Hague Convention on Land Warfare itself contained no additions
or amendments whatsoever, apart from separate agreements concerning
particular methods of conducting warfare. I might add that in the
meantime various methods of warfare have been banned by treaties. But,
as far as principles are concerned—and that is the basis of my
argument—the principles laid down in the Hague Convention have
undergone no changes through treaties in the meantime.
THE PRESIDENT: Yes. Then I understand you to say there has been no
communication between states, since the 1914-18 war, which suggests that
the Hague Rules on Land Warfare are no longer applicable?
DR. FLÄCHSNER: Yes, that is correct.
We must decide whether, and to what extent, the measures taken on the
German side were effective in remedying the state of emergency. In the
course of the Trial, the Prosecution have claimed, on several occasions,
that the imported labor was to be used to release workers for service at
the front. This is certainly one reason why the recourse to foreign
workers was used, but it is by no means the decisive reason—not even
the most important reason. It is a fact that the total blockade of the
German Reich carried out by the adversary compelled the Reich to an
increasing extent to build plants for the production of substitute raw
materials in order to carry on the war in the technical form which it
had now assumed. It is also a fact that the disturbances caused in
economic life by aerial warfare made it essential to employ an increased
number of workers. As an example, let me say how much additional labor
was necessary for the repair of air raid damage. This situation involved
a state of emergency insofar as the waging of a war of self-preservation
would no longer have been possible without the erection of such
additional production plants.
Should it be contended that it is impossible to speak of an emergency
overriding the illegality of the proceedings in terms of international
law, since the war was begun as a war of aggression and was, therefore,
illegal from the outset, it may at least be said in favor of the
Defendant Speer, that he believed in the existence of such a state of
emergency and had reason to do so.
The examination of evidence has revealed that the underlying causes
which led to the war, so far as they have been exposed here by the
Prosecution, were not known to most of the defendants, and least of all
to the Defendant Speer. Insofar as the deportation of foreign workers to
the Reich constitutes an objectively illegal measure according to
international law, it remains to be examined what share of it can be
charged to the Defendant Speer. At his interrogation prior to the
beginning of the Trial, on 18 October 1945, the Defendant Speer admitted
knowing that, at least as far back as September 1942, foreign workers
had ceased to come voluntarily to the Reich. He said he had countenanced
that because there was no possibility of meeting the labor requirements
otherwise. It must be concluded from this declaration that the defendant
was convinced of the necessity for this emergency measure. Subjectively,
therefore, he must be credited with believing in the existence of such a
state of emergency overriding illegality.
But in the first place, we must examine to what extent the Defendant
Speer actually contributed to the dispatch of deportees to Germany. Here
we must start from the principle that the Defendant Speer had a purely
technical assignment which he described adequately in his evidence, to
which reference can be made. In order to carry out this assignment, he
stated his labor requirements. The way in which these requirements were
met has been described in detail by the witnesses Schieber and
Schmelter. Requirements were submitted in terms of totals needed, and it
was incumbent upon the Defendant Sauckel to satisfy them. These
requirements referred to the total number of workers as a whole, and it
was the Defendant Sauckel’s task to meet these requirements as far as
possible and in accordance with his judgment. He had power to exhaust
the entire resources of the home labor potential as well as to recruit
foreign labor. The witnesses Schieber, Kehrl, and Schmelter stated, in
the course of their interrogations, that the Defendant Speer tried to
procure German labor, in the first place, for assignments given to him
by the Government.
The testimony of the witness Saur affords evidence that the satisfaction
of the labor requirements necessary to enable Speer to accomplish his
assignment of increasing armament production was of considerable, though
not decisive, importance—Document Book 2, Page 146. According to this
testimony, the number of workers in the direct armament industry rose
from 4,000,000 to 4,900,000—for the whole of the armament
industry—during the defendant’s activity as Armament Minister, while
the manufacture of basic products for armament increased five and a half
to seven times in many departments. It must, therefore, be borne in mind
that the increase in armament production which the Defendant Speer was
required to produce was achieved, in the first place, not so much
through an increase in the number of workers employed as by means of
technical and organizational measures. It follows from this again that,
for the defendant, the procurement of labor was admitted to be an
important, though not decisive, element in the fulfillment of the task
assigned to him.
The defendant made the credible statement that he had applied to Sauckel
for workers, but had stressed the fact that he wanted German workers
first of all. In the defendant’s opinion, an increased number of workers
could have been found in the economic sector under his control without
having recourse to foreign labor to the extent that it was done. The
measures taken by the defendant to prevent the transfer of workers from
the West into the Reich have been adequately described by the evidence.
In taking those measures—that is, in transferring the production of
consumer goods and the manufacture of high priority armament parts, such
as, for instance, forged parts, railway equipment, _et cetera_, to the
western countries and in installing protected industries there—Speer
was actuated by the belief that the conscription of workers from France,
as well as from Belgium and Holland, would be halted. The result of his
talks with the French Minister Bichelonne, as the defendant explained
during his interrogation, was for all practical purposes to end the
deportation of workers to Germany. The results have been accurately
described by the Plenipotentiary General for the Allocation of Labor at
the session of the Central Planning Board held on 1 March 1944—see Page
32 of my document book.
In spite of all the opposition made to this policy—compare Sauckel’s
letter to Hitler, dated 17 March 1944, Document 3819-PS—Speer
persevered in his purpose. The decision adopted at Hitler’s conference
on 4 January 1944—a report of which was submitted by the Prosecution
under Document 556-PS—also reveals that the protected industries, the
abolition of which was urged by Sauckel, were to remain out of bounds to
Sauckel’s labor conscription. Speer wanted to employ the French workers
in France, in an effort to transfer the production of consumer goods and
products which did not represent armament production to the occupied
western territories. He wished to utilize for armament production the
German workers released as a result of the closing down of German
plants—see Document R-124, Pages 33-34 of the Speer document book. In
this manner Speer was able to increase production because German workers
could more easily be retrained, as there were no language difficulties
and no difficulties regarding food—compare Kehrl, Page 110, the Speer
document book. The result of this policy was that workers from the
western areas were mainly used in the production of civilian goods, but
not in armament production.
On the question of employment of foreign labor in the protected
industries, it must also be said the statute is based on two factual
circumstances: Deportation for forced labor and forced labor itself.
Forced labor in France was ordered by a decree from the French
Government. According to international law there could be no objection
to this, unless the view were taken that the French Government was not
entitled to take such measures and to issue such decrees. As the
Defendant Speer stated, the French economic leadership obtained its
independence through the agreement with Bichelonne, naturally with the
restrictions imposed by the agreement.
As established by Berck—see Document Book 1, Page 38, Document
1289-PS—co-worker of the Defendant Sauckel, 20 percent went from the
protected industries of France to French economy, whereas more than 40
percent went from the consumer goods industry into French hands. It
follows that the French armament industry did not manufacture weapons
and actual implements of war, for the German authorities would scarcely
have left these to the French agencies.
In the session of 20 June 1946 the Tribunal summarized its misgivings as
to the manner in which we presented our evidence by stating that
questions of suitability were irrelevant. On the other hand the Defense
may be said to represent the viewpoint that this speech was only
intended to clarify the question of legality. If the French Government
were justified in decreeing compulsory labor service, and if plants
employing French workers on the basis of this decree or on the basis of
voluntary labor contracts were provided with German orders, no legal
objection could be raised. The establishment of protected industries,
which prevented the withdrawal of workers and their transfer to Germany,
and the removal of single branches of production to France, Belgium, and
Holland permitted the objective—that is, satisfaction of the
requirements of the German economy—to be attained in a manner which was
legally unobjectionable. Even though the Defendant Speer did not
completely check the transfer of workers, he nevertheless did succeed in
decreasing their commitment appreciably. Instead of the policy pursued
by other Reich offices of removing foreign workers to the Reich, the
defendant aimed at employing the labor needed for his purpose in the
workers’ homeland—Exhibit Speer-9, Page 24, and Exhibit Speer-11, Page
27 of the Speer document book. To this extent he counteracted the
tendency to deport workers from their native country.
In order to prove the assertion that Speer played a decisive part in
intensifying deportation for forced labor, the Prosecution refer to
Document 556-PS, which is a file memo by Sauckel of a telephone
conversation he had with Speer on 5 January 1941. In contrast to this
Speer Exhibit-35 has been submitted, the copy of the minutes of the
Führer conference of 3 and 5 January 1941, which was the object of the
telephone conversation. Even if sharp remarks by Hitler are reproduced
here also, the exhibit, nevertheless, does not reveal the tendency which
was noted by Sauckel in his file memo. The Defendant Speer was already
at that time on bad terms with Sauckel. The order issued to Speer in the
minutes of the Führer conference, with reference to the control of the
French armament industry, gave him a pretext for the establishment of
protected industries. For all practical purposes the termination of
labor commitments from France was thereby achieved—just the opposite,
therefore, of what the Prosecution would like to prove. Reference must
be made in this connection to Document F-515, Exhibit RF-22. There it is
asserted that, owing to the Speer-Bichelonne agreement, labor
commitments to Germany from October 1943 onward were one-tenth
less—compare Page 41 of my document book.
In weighing the question as to what extent this exonerates the
defendant, it is of no importance whether he acted in such a way for
reasons of expediency, or with the conviction that the other procedure
was illegal. The only thing that matters in this case is the result,
which actually put a practical stop to the transfer of laborers to
Germany, as is evident from the document quoted, RF-22. It is certainly
clear from the Führer’s minutes of 19 to 22 June 1944—Exhibit Speer-12,
Page 19 of the Speer document book—and from the testimony of
Seyss-Inquart, 11 June 1946, that in spite of the loss of industry in
the western territories and the intention of other departments to bring
the unemployed workers to Germany, Speer succeeded in maintaining his
protected industries, and thus the plan to commit more foreign workers
to Germany finally collapsed.
In the case of the Defendant Speer, we cannot say that it was his duty
to examine how far Sauckel’s measures were admissible from the point of
view of international law, and this for the following reasons. When he
took over his post in the year 1942, the transfer of foreign labor to
Reich territory had already been practiced for some time. Speer relied
on the assumption that the legal foundations for these measures had been
examined before their introduction. It was not his duty, in the eyes of
the law, to examine them individually; he could be sure that the offices
which handled the allocation of labor commitment had examined the legal
basis of their activity. During his years of office, he was repeatedly
assured by the Plenipotentiary General for the Allocation of Labor that
the transfer of labor to the Reich was carried out strictly within legal
limits. He could depend on it that the authorities who were entrusted by
the State with the tasks of labor procurement would examine, from the
point of view of their legal admissibility, the measures they took in
order to carry out these tasks.
The activity of the defendant within the framework of the Government
could, if transferred to the sector of civil law, be compared with that
of the technical plant manager of a factory, and in this case Sauckel’s
position would correspond to that of a director of the personnel office.
In such a case the technical plant manager’s duty is not to examine
whether, and to what extent, the employment contracts concluded with the
individual workers conform to legal regulations.
He has only to see that the manpower he is given to carry out his tasks
is employed in the right place and in the right manner. This cannot be
met with the argument that the Defendant Sauckel merely considered
himself as the deputy of the Defendant Speer. This would not present a
fair picture of the way in which the different tasks had been
distributed between the two codefendants by the state leaders. The fact
cannot be overlooked that of all the sectors of the economy which sent
in their requests to the Defendant Sauckel, those presented by the
Defendant Speer were the most important for the conduct of the war and,
therefore, had priority over the others. This does not mean, however,
that it was Sauckel’s duty to satisfy all the demands of the department
represented by Speer before all the others. He did not do so, as can be
seen from the evidence—in particular from the testimonies of the
witnesses Schieber, Document Book 2, Page 114, and Kehrl, Document Book
1, Page 106—and moreover he could not do so since the demands of the
other branches of economy, which were all known as “Bedarfsträger,” were
very often equally urgent, and the labor potential at hand was not
sufficient to fulfill all the demands to the same extent. Had Sauckel
not been more than a deputy of Speer, a mere tool who had only to carry
out the instructions of Speer, the profound differences between the two
could never have come into existence.
It has been emphasized by the Prosecution that the appointment of the
Defendant Sauckel as Plenipotentiary General for the Allocation of Labor
was only made possible through the intervention of the Defendant Speer,
and that this gave reason to believe that Sauckel had been more or less
a tool of the Defendant Speer, or depended on him to a large extent.
This assumption does not correspond with the actual facts. When he took
over his office as Armament Minister, the Defendant Speer soon
discovered that the supply of labor to plants, which had been carried
out until then by the Ministry of Labor, could not equal the demands
made on it. Within the field of work of the Ministry of Labor, this
activity represented only a small fraction of its over-all functions.
The Defendant Speer declared in the course of his interrogation that the
Ministry of Labor was constantly coping with the temperaments of the
different Gauleiter in their districts, because it was the ambition of
every Gauleiter to do everything within his power to prevent the
transfer of workers from his Gau to another. The Ministry of Labor,
which was organized on purely bureaucratic lines, did not seem to the
Defendant Speer to be equal to its task, and the suggestion was made to
the state leadership that a Gauleiter be entrusted with this task. When
Speer’s suggestion was followed up by the request that a Gauleiter,
charged with the procurement of labor, be put under him, it was not
granted by the state leadership because of other existing competencies.
The person proposed by Speer was also turned down, and the Defendant
Sauckel was appointed instead. So that in Speer’s endeavors to create a
Plenipotentiary General for the Allocation of Labor, the reasons
involved were merely of an organizational nature with the purpose of
overcoming the afore-mentioned opposition, which was directed against
the activity of the labor procurement office in the Ministry of Labor.
But to draw from these facts the conclusion that the Defendant Speer was
responsible for all the measures ordered by the Defendant Sauckel would
be erroneous.
The fact that the defendant, as a member of the Central Planning Board,
participated in sessions at which the problem of the procurement of
labor was discussed, cannot be used to support the claim of the
Prosecution. The Prosecution attempt to prove from the sessions of the
Central Planning Board that the Defendant Speer played a leading part in
the procurement of labor from foreign countries. In reply to this the
following must be stated. The Prosecution have only submitted the text
of the minutes of a session, but not the decisions which were made on
the basis of this session. And yet, it is exactly these which are
decisive. Since all the Defendant Speer’s records, including also the
notes on the decisions of the Central Planning Board, were placed by him
at the disposal of the Allied authorities, it would have been easy for
the Prosecution to present such decisions which would have shown the
exact participation of the defendant in the procurement of labor. But
such conclusions do not exist and, therefore, the fact that at the
conferences of the Central Planning Board questions of labor
mobilizations were mentioned should not lead to the conclusion that the
Central Planning Board had taken this point over in its sphere of
activity.
The decree regarding the establishment of the Central Planning Board is
given under Number 42 in Exhibit Speer-7. The scope of the Central
Planning Board in labor questions is clearly outlined, and it is stated
that the procurement and distribution of labor need not be included in
the sphere of competence of the Central Planning Board, as the new
office of the Plenipotentiary General for the Allocation of Labor has
been specially created for it. It is clear also from the testimony that
when the Codefendant Sauckel discussed questions concerning the policy
of labor commitment before the Central Planning Board, he underlined
sharply his independence of the Central Planning Board, and stressed the
fact that when he made his decisions he was responsible only to the
Führer in the last instance and was independent of the Central Planning
Board. For this I refer to the testimonies of the witness Kehrl and the
witness Schieber, Exhibits Speer-36 and 37. This does not mean that no
attempts were made in the Central Planning Board to exert an influence
in the sphere of the Plenipotentiary General for the Allocation of
Labor. These attempts, however, did not have any results. In principle
we must take the stand that the responsibility of the Defendant Speer
for the transportation of labor from the occupied territories to the
Reich cannot be deduced from his activity within the Central Planning
Board.
If the Prosecution charge the defendant with the fact that he knew that
a great portion of the workers made available to him by Sauckel had been
brought to Germany against their will, and that he used these workers in
the industry which was under his control, this conclusion encounters
legal criticism. If, and insofar as, the removal of labor to the Reich
was a violation of international law, this crime would be limited, at
the most to the removal of labor to the Reich. The fact that the persons
removed into Reich territory were assigned to work is, legally speaking,
a new fact to which the Prosecution apply the concept of slave labor.
In this connection the following should be considered. By reason of the
Reich Service Law, and the decree which enforced it, there existed for
every German an obligation to contribute his services to the war effort.
Through the labor office as the highest instance, the leaders of the
State could dispose of the work of every citizen for any purpose they
considered appropriate, and they did so.
Foreign workers who were removed to Germany likewise became subject to
this regulation. We, on our part, do not deny that the Hague Convention
on Land Warfare itself contains no provision which would support the
extension of compulsory labor service from German nationals to the
inhabitants of the occupied territories. Since the Hague Convention on
Land Warfare reflects the influence of a different concept of warfare,
it is impossible that it should have taken into consideration conditions
produced by economic warfare. Yet, it is not possible to answer in the
affirmative the question of whether the Hague Convention on Land Warfare
finally and definitely regulates all the powers of an occupation
authority. Such an answer is contradicted by the practice of all the
nations which participated in this war. But here, too, we can resort to
the afore-mentioned aspect of national emergency to obtain a correct
evaluation and appreciation of the case. It should be admitted that the
Prosecution are right in that this extension of liability to compulsory
labor can be justified from that point of view only.
If we accept the Prosecution’s contention that there is no legal
justification for the extension of liability to compulsory labor to
foreign nationals of occupied territories, we are still obliged to check
the extent to which the Defendant Speer has rendered himself guilty in
the employment of labor subject to such compulsion. In this connection
we may refer to what was said earlier about deportation. That the
Defendant Speer, although he was not responsible for this, still
attempted to mitigate the living conditions of these workers, and that
he also took steps to correct bad conditions—insofar as these came to
his attention—is shown by Exhibits 3, 4, and 5 of the Speer document
book and Pages 7, 8, 9 of the Speer document book. Reference must also
be made to the testimony of the defendant himself, in direct
examination, as well as in cross-examination, where he described his
activity in that field.
Justice Jackson, the American chief prosecutor, when placing before the
Defendant Speer, during his cross-examination, a series of documents to
demonstrate the bad treatment of foreign workers by the firm of Krupp in
Essen, himself stated that he did not intend to hold the Defendant Speer
responsible for such individual incidents. (Session of 21 June 1946 p.
m.) The documents involved were Dr. Jäger’s affidavit—Document
D-288—discussed by Dr. Servatius, and a letter of the locomotive
manufacturing department of the firm of Krupp, dated February 1942,
shortly after the Defendant Speer’s appointment as Reich Minister. The
conditions described therein had caused Speer to intervene with Hitler
in March 1942—Exhibit Speer-3, Page 7 of the Speer document book. A
further document submitted, Document D-321, describes the conditions
under which Russian laborers came to Essen in 1941—that is, before the
Defendant Speer took office. Document D-258, Exhibit USA-896, which was
submitted during cross-examination, was not produced in order to
incriminate the defendant, as stated by Justice Jackson—it may
therefore be passed over. Further documents submitted all deal with
incidents in the Krupp works. As far as he was able to do so, the
defendant explained all of them.
These documents show that abuses of a general nature, for which the firm
of Krupp might be held responsible, were caused by air bombardments and
the resulting demolition of living quarters. But even if the incidents
cited had actually occurred on the premises of that firm—which the
Defense is not in a position to verify—these incidents would not supply
adequate ground for the assumption that the conditions under which
foreign laborers worked in armament industries were the same everywhere.
No conclusions may be drawn as to a whole system simply by selecting and
investigating one firm. Only evidence showing the general prevalence of
such conditions would be relevant.
It is true that the activity of the Defendant Speer would not affect the
criminal evaluation of his actions in principle, but it would be of
decisive import in establishing the degree in which he participated.
When the defendant took office, the practice of employing foreign labor
and prisoners of war was already in existence. Thus he cannot be
considered as the originator, which fact must also be taken into
consideration when passing judgment; for it appeared impossible to
depart from the established practice. The employment of foreign labor in
German economy was nothing unusual. Many foreign laborers were employed
in agriculture, mining, and surface and underground construction in
peacetime as well. During the war many foreign laborers from both East
and West had already been brought to Germany before the Defendant Speer
took office, and only part of these belonged to the sector under Speer’s
control.
In order to define the spheres of responsibility of the two defendants,
Sauckel and Speer, it will be shown below how the assignment and
distribution of workers was handled in the establishments last
controlled by the Defendant Speer. Acting as organs of the Speer
Ministry, commissions and pools assigned certain production tasks to
individual establishments as part of the armament program. The factory
then calculated the number of workers needed. This was reported
simultaneously to the Armament Command and to the Labor Office, where
the labor requirements of all employers in need of workers were
recorded. The Armament Command examined all requests received from
plants under its jurisdiction and passed them on to the Armament
Production Office. Labor requirements reported to the Labor Office were
forwarded by them in turn to the Gau labor offices. Armament Inspection
Offices collected the requests and forwarded them to the Speer Ministry,
labor allocation division. The Gau labor offices directed applications
which they received to the Plenipotentiary General for the Allocation of
Labor.
It must be noted in this connection that in 1942 the Speer Ministry
controlled only construction work and ground forces armament. Navy and
air armament made their requests for labor independently. In the spring
of 1943 Navy armament was assigned to the Speer Ministry, and, from that
time on, labor requisitions for this purpose were handled through the
labor allocation division. In the fall of 1943 the rest of production
was added, while aircraft armament continued to handle its requisitions
independently through the Plenipotentiary General for the Allocation of
Labor until August 1944.
An account of these details is indispensable to disprove the
Prosecution’s assumption that Speer was the main beneficiary of
Sauckel’s mobilization of labor. The fact that along with the Speer
Ministry there existed essential labor employing agencies of equal
importance as, for instance, the Armed Forces Administration, the
Transport System, and so forth, need be mentioned only incidentally, but
has also been confirmed by the testimony of witnesses. The
Plenipotentiary General for the Allocation of Labor distributed the
labor at his disposal among the various labor employing agencies and
assigned the required labor to the Gau labor office which in turn
referred them to the local labor offices where workers were assigned to
individual establishments on the strength of applications previously
examined by the Armament Office. An exception to this cumbersome
procedure was made by the introduction of the so-called “red-slip
process” which was used in the case of exceptionally urgent production
assignments—I refer to Page 122 of the document book. A certain number
of red slips were issued monthly by the Plenipotentiary General for the
Allocation of Labor and placed at the disposal of the Armaments Ministry
for distribution by the latter to the plants under its supervision
through the industry’s administrative agencies. The plant itself then
presented these red slips to the Labor Office, which had to satisfy
these red-slip requests for workers regardless of the requirements of
other consuming agencies. Not until this had been done could allocations
be made to other establishments. General requests for labor were
involved in all instances. The allocation was exclusively in the hands
of labor authorities directed by the Defendant Sauckel, so that neither
the individual factory nor the offices of the Defendant Speer, nor the
Defendant Speer himself, had any influence on the distribution. The
question of whether local, foreign, or prisoner-of-war labor should be
used to satisfy requisitions was left for the labor authorities to
decide—document book, Pages 8 and 9.
In concluding the presentation of evidence, the Prosecution submitted
the decree of 1 December 1942, Document 4006-PS, issued jointly by Speer
and Sauckel. The Prosecution contend that this document, and the decree
of 22 June 1944 submitted at the same time, furnish a basis for
appraisal of the power ration between Speer and Sauckel. Some comment on
this is, therefore, appropriate.
The decree of 1 December 1942 leaves no doubt that the Plenipotentiary
General for the Allocation of Labor was authorized to examine requests
for labor submitted to him which came from the armaments industry. Thus,
when a factory asked for additional laborers in order to carry out the
production job assigned to it, the Plenipotentiary General for the
Allocation of Labor reserved for himself the right to examine the
requests submitted with a view to determine whether they were necessary.
The intention was to make each factory practice the greatest possible
economy in the use of labor within its own precincts.
Another purpose of these commissions was to determine the extent to
which an establishment might be able to release its own labor for work
in other plants, without prejudice to the task assigned to it. It was
the task of the Ministry for Armament and War Production, and of the
agencies subordinate to it, to determine the sequence of priority of
requests for labor received by establishments under its jurisdiction.
They also had to determine which of the plants was in a position to
release workers for other plants manufacturing similar products for
similar Armed Forces requirements. To give an example: The supply
program of a plant manufacturing component parts for vehicles was
modified, then it was left to the Armament Command to decide that the
labor power thus set free should be assigned to another factory in the
same line of production.
In general, the allotment of labor remained in the hands of the
Plenipotentiary General for the Allocation of Labor. The agencies of
Speer’s Ministry were merely concerned with directing the labor already
available in this economic branch which had been procured and assigned
to these establishments by the Plenipotentiary General for the
Allocation of Labor. The procurement of labor from other plants remained
in the hands of the Plenipotentiary General for the Allocation of Labor,
and the Plenipotentiary General for the Allocation of Labor participated
authoritatively in the examination of the question as to what extent
plants could release labor in order to make it available to others—the
so-called combing-out action.
The authority of the Plenipotentiary General for the Allocation of Labor
was, therefore, not limited to any considerable extent through this
mutual agreement between him and the Reich Minister for Armament and War
Production. His task, now as before, was merely to procure labor for the
plants. He was even given a considerable amount of authority in labor
questions—to look over the armament plants under the control of the
Defendant Speer and to examine if, and to what extent, these plants
could make available labor for other plants.
The decree of 22 June 1944 ordained that labor which was already
available was to be used in accordance with the directives of the
central authorities or according to the orders of the Chairman of the
Armament Commission. It must also be noted in this respect that it was
not a matter of using new labor, which was unskilled in armament work,
and which was still procured through the Plenipotentiary General for the
Allocation of Labor, but solely of so-called transfer actions from one
armament plant to another. Therefore, the Sauckel agencies, in
accordance with this decree, could no longer check the demands for labor
made by the plants which were controlled by the Speer Ministry, if the
Chairman of the Armament Commission had recognized these demands. This
decree brought about a change in the basic distribution of authority,
according to which the Plenipotentiary General for the Allocation of
Labor had to procure the required labor and to handle the whole
allocation of labor. If the agencies of the Plenipotentiary General for
the Allocation of Labor allocated labor in response to demands which had
been checked, then it was left to their judgment as to what type of
labor, whether native or foreign, _et cetera_, was to be furnished. The
authority of the agencies of the Minister for Armament and War
Production in questions of the commitment of labor was limited to a
large extent to the execution of so-called transfer actions, that is,
the assignment of labor from one armament plant to another.
It would be wrong to try to conclude from these decrees that there was a
considerable limitation of the authority of the Plenipotentiary General
for the Allocation of Labor and a fundamental expansion of authority on
the side of Speer. It would be just as wrong to conclude from this that
the influence of the Ministry for Armament and War Production had been
increased over other authorities of the Plenipotentiary General for the
Allocation of Labor.
In order apparently to characterize the relationship between Speer and
Sauckel, the Prosecution have finally submitted a file note by General
Thomas, the Director of the War Economy and Armament Division in the
OKW, regarding a discussion which took place on 24 March 1942 between
the Defendant Speer on the one hand, himself, and the directors of the
armament offices of the three branches of the Armed Forces on the other
hand, in which Thomas states that the Führer considered Speer as his
main authority and his agent for all economic spheres. This note can
only be understood in connection with the report of the account given by
General Thomas of his activity as Director of the War Economy and
Armament Office, and which has been presented to the Tribunal in excerpt
form under Document 2353-PS.
Prior to Speer’s appointment as Minister for Armament and War
Production, Thomas had to try to bring about an expansion of the
position of Plenipotentiary for Economy as it had been provided in the
Reich Defense Law, so that it should become an office which would
control the whole war economy. When now the armament economy was
confronted with heavy demands in connection with the first winter
campaign in Russia, and the losses which had been sustained there, and
Hitler, after the death of Dr. Todt, appointed Speer to be his successor
in the Ministry for Armaments and Munitions, Thomas thought he would
find in Speer a personality who would receive the authority which he had
striven to obtain for the Plenipotentiary for Economy.
This, however, did not occur. As has been shown from the evidence, Speer
was entrusted only with the equipment of the Army and construction
tasks. The control of the new office of the Plenipotentiary General for
the Allocation of Labor by his Ministry, for which the Defendant Speer
was striving, was not sanctioned by Hitler. Speer’s rights as Minister
for Armament and War Production are stated in the decree. The
expectations which General Thomas held on the whole with regard to the
appointment of Speer, were therefore not fulfilled in any way. Speer
only received increased authority when in the year 1943 he took over
industrial production from the Ministry of Economy. But even then he was
still far from having the same field of tasks as General Thomas had
expected for him. Relying on his expectations, General Thomas thought
that he had found in the person of Speer the man appointed by Hitler who
would settle matters on all economic questions. In the file note of
General Thomas, which confines itself merely to generalities, it is a
matter of an expression of opinion which was not justified by the actual
state of affairs. It offers no grounds on which to answer the question
as to how we must distribute responsibility for the policy of the labor
commitment to which the Prosecution object.
In summarizing, it must be stated to this count of the Indictment: Speer
is not responsible for the means employed for the procurement of foreign
labor, nor for its removal to Germany. He is at the most responsible for
the utilization of part of this labor in Germany.
As a further count of the Indictment, it has been stated that the
defendant employed prisoners of war in the economic sector which was
under his direction, and that he thereby violated Article 32 of the
Geneva Convention of July 1929, regarding the treatment of prisoners of
war. The defendant never denied that he employed prisoners of war in
plants under his control. This, however, cannot be regarded simply as a
violation of Articles 31 and 32 of the previously mentioned agreement.
The expression “armament economy” and/or “armament plant” has not the
same meaning as “plant” or “economy,” the task of which is the
manufacture of arms and direct war requirements.
The term “armament plant” can only be understood from its development.
When, at the beginning of rearmament, there began to be a limitation of
raw materials, plants which were working for rearmament were given
preference in obtaining raw materials. These plants were controlled by
the armament inspections, which were set up by the Armed Forces and
called “armament plants.” In addition to all other plants, those were
included in it which served the manufacture of iron, steel, and metals,
as well as those plants which manufactured machine boilers, vehicles,
and appliances; also the entire manufacture of raw steel in the first
stages of preparation—foundries, rolling works, forges—as well as the
whole remaining subsidiary supply industry, for example,
electro-technical plants, plants which produced optical instruments,
plants which manufactured ball bearings, cogwheels, et cetera. This is
shown by the testimony of the witness Schieber—Question 9, document
book, Page 114.
Only 30-35 percent, roughly, of the whole iron production was used for
the production of armaments to the extent previously described, and 60
percent for the maintenance of production for other consumers—Reich
railroads, the construction of merchant vessels, agricultural machines,
export goods, appliances for the chemical industry, _et cetera_. We
refer to the testimony of the witness Kehrl, which has been submitted
under Exhibit Speer-36, and particularly to his answer to Question 5.
Since the iron quota assigned to the armament industry also includes the
production of raw steel and the different stages of manufacture, it can
be safely presumed that of all the plants which were combined in the
armament inspections, only approximately 20-30 percent manufactured
armament products in the sense implied in the Geneva Convention. These
details had to be examined in order to gain an idea as to what extent
Article 31 of the Geneva Convention could be violated by the employment
of prisoners of war.
The Prosecution have presented an affidavit of the American economic
statistician Deuss under Document 2520-PS, in order to prove thereby how
many prisoners of war and foreign workers were employed in the armament
industry. This compilation, which is principally supported by figures
taken from the documents in the possession of the Defendant Speer, does
not, however, state in which branches of the armament industry the
individual prisoners of war worked. A large enterprise which falls under
one of the above-listed categories and as a result thereof was
considered an armament plant in its entirety, needs only to manufacture
a fraction or perhaps no weapons or equipment at all which stand in
direct relationship to war activities. If prisoners of war are employed
in it, then their occupation does not represent a violation of Article
31 of the Geneva Prisoners of War Convention. Such a plant, however,
appears in its entirety in Deuss’ affidavit. The affidavit thereby loses
its value as evidence as to what extent Article 31 of the Geneva
Convention was violated. Thus we have no proof of whether, and to what
extent, Article 31 was violated by the employment of prisoners of war in
the armament industry.
The French Prosecution have taken the point of view that the employment
of French civilian workers who had been released from confinement as
prisoners of war, and who were employed in the armament industry, was
also to be considered a violation of Article 31. This is not applicable.
From the time of their release the former prisoners of war were free
people who were unlimited in their freedom of movement, and who were
restricted only by the obligations embodied in their labor contracts. In
addition to this, no French prisoner of war could be forced to agree to
his release under the obligation of putting himself as a worker at the
disposal of German industry. It was his own free decision if he
preferred to accept his release as a prisoner of war under these
conditions. If he did so, from this moment onward he was no longer a
soldier, and was no longer subject to military discipline; he received
his working wages like every free worker, and was not subjected to any
camp discipline or any other restrictions of the same nature. To those
prisoners of war who preferred to agree to their release under these
circumstances, the advantages apparently appeared far greater than the
protection which they enjoyed as prisoners of war. If they did so, then
their occupation, even in work which in itself is prohibited for
prisoners of war in accordance with Article 31, cannot be considered a
violation of this article.
The employment of prisoners of war in the industry of the country which
is holding them prisoner is not prohibited by the Geneva Prisoners of
War Convention. Only that work is prohibited which is directly connected
with military operations—for example, the use of prisoners of war for
fortification works for a combat unit. The Defendant Speer cannot be
accused of anything of that kind. It is also prohibited for them to
manufacture and transport weapons of all kinds, as well as to transport
war material for combat units. In the armament economy under the control
of the Defendant Speer, the only thing which could be considered as a
violation of the afore-mentioned rule is the manufacture of weapons and
munitions of all kinds. Such a violation, however, has so far not been
proved by the Prosecution at all.
It must furthermore be examined how the assignment of prisoners of war
to plants took place. According to the testimony of the Defendant
Sauckel, this as a matter of principle was done by the war economy
officers with the military district commanders, who submitted the number
of prisoners of war available for work to the Gau labor office; and the
transfer of the prisoners of war to the plants then took place in the
same manner as with ordinary labor. The only difference was that the
camp officers—the prisoners of war were billeted in so-called enlisted
men’s camps (Stammlager)—were responsible for seeing that the
directives issued by the OKW for the employment and treatment of
prisoners of war were complied with. It was the responsibility of these
camp officers to see that in the employment of prisoners of war any
violation of Article 31 of the Prisoners of War Convention was made
impossible. The commitment officers (Einsatzoffiziere) appointed by the
camp commanders had constantly to control and examine the working
conditions and the nature of the occupation of prisoners of war in
armament plants, and they had to watch to see that no prohibited work
was imposed on the prisoners of war. The Defendant Keitel has given an
exact description of the manner in which the control of prisoners of war
in the home area was carried out. Documents have also been submitted
which give information about the treatment of prisoners of war.
The prisoners of war who were confined in assembly camps were constantly
being examined by camp commitment officers to see that their employment
was in accordance with Articles 31 and 32 of the Geneva Prisoners of War
Convention. As far as French prisoners of war were concerned, a special
authority existed for them in the person of Ambassador Scapini, who had
to forward to the OKW any complaints which were made against the use of
prisoners of war for labor in a way which violated international law.
Complaints of this kind by Ambassador Scapini were immediately
investigated, and if they were found to be justified, improvements were
made. It is, of course, possible that mistakes sometimes occurred in
view of the vast organization necessitated by the large number of French
prisoners of war. Measures for the correction of mistakes of this kind
are, after all, provided by the Geneva Prisoners of War Convention
itself in its regulations. These regulations were also effective in the
last war. The representatives of the protecting powers intervened
against bad conditions brought to their attention through complaints,
and they also demanded and achieved their abolition. If such mistakes
were recognized and reported, they were then immediately remedied. It
would be wrong to try to conclude from individual occurrences that there
was a premeditated plan. The protection which prisoners of war found
through the labor commitment officers even laid Defendant Speer open to
criticism by individual plant directors as being too extensive.
In this respect, as far as the Defendant Speer’s position in law is
concerned, we must first examine whether the employment of prisoners of
war in the armament industry is to be fundamentally regarded as a
violation of the rules of international law. After the previous
statements as to the character of the plants which were combined in the
armament industry, this must be answered in the negative. Only insofar
as prisoners of war were actually employed in the production of arms and
in the production of urgent war materials could there be any mention of
a violation of Article 31. That this regulation may have been violated
in individual cases we will not deny. If, for example, as the
photographs submitted by the American Prosecution show, prisoners of war
were used near the front lines to unload munition trains, then this
undoubtedly represents a violation of the regulations of Article 31. The
Defendant Speer, however, cannot be accused of such incidents, as they
do not fall within his competence. To use the fact of the employment of
prisoners of war in the armament industry to conclude a violation on a
large scale of the regulations of the Geneva Prisoners of War Convention
is not justified.
THE PRESIDENT: The Tribunal will adjourn.
[_The Tribunal recessed until 1400 hours._]
_Afternoon Session_
M. JEAN JACQUES LANOIRE (Assistant Prosecutor for the French Republic):
Mr. President, I would request the authorization of the Tribunal to make
a very short statement in the name of the French Prosecution. Even
though it is not the custom that the Prosecution should intervene in the
course of the discussion, the counsel for Speer gave a few opinions
which it seems to me I must go into without waiting for my turn, and
also request the Tribunal to reject them.
THE PRESIDENT: The Tribunal does not think it is appropriate that the
speeches of the defendant’s counsel should be interrupted by counsel for
the Prosecution. Counsel for the Prosecution are going to speak
afterward, and they will then have a full opportunity of answering the
speeches that have been made on behalf of the defendants.
M. LANOIRE: Certainly, Mr. President.
THE PRESIDENT: Dr. Flächsner, if you will wait one moment, I have an
announcement to make. The Tribunal refers to its order of 23 February
1946, Paragraph 8 of that order, which is on the subject of the
statements which the defendants may make, under Article 24 of the
Charter.
In view of the full statements already made by the defendants and their
counsel, the Tribunal assumes that if it is the defendants’ desire to
make any further statements, it will be only to deal with matters
previously omitted. The defendants will not be permitted to make further
speeches or to repeat what has already been said by themselves or their
counsel but will be limited to short statements of a few minutes each to
cover matters not already covered by their testimony or the arguments of
counsel.
That is all.
DR. FLÄCHSNER: Mr. President, Your Honors, I now continue my speech. A
further charge of the Prosecution refers to the violation of Article 32
of the Geneva Prisoner of War Agreement, according to which prisoners of
war were employed in unhealthy work, insofar as prisoners of war had
been employed in mines. For this reference is made to the minutes of a
meeting of the Central Planning Board where the employment of Russian
prisoners of war in mines is discussed. The employment of prisoners of
war in mines is not to be considered as forbidden in itself, and it has
been practiced in all industrial nations. The employment of Russian
prisoners of war in mines is, therefore, not to be objected to, insofar
as the prisoners concerned were in a physical condition that enabled
them to do heavy mining work. It has not been established and proved by
the Prosecution that these prisoners of war were not physically fit for
the work given them. From the fact that the employment of prisoners of
war in mines was discussed and approved by the Central Planning Board,
it cannot be concluded that Article 32 of the Prisoner of War Agreement
was violated. The treatment of prisoners of war has to be examined
legally from various points of view. The German Government have taken
the point of view that Soviet prisoners of war should be treated on a
different legal basis from the subjects of the Western States, who were
all parties to the treaty of the Geneva Prisoner of War Convention of
1929, whereas the Soviet Union did not sign this agreement. The Soviet
Prosecution have presented Document EC-338, USSR-356, an investigation
of the Foreign Counter-Intelligence Office (Amt Ausland Abwehr) in the
High Command of the Armed Forces concerning the legality of the
regulations issued on the treatment of Soviet prisoners of war,
according to international law, and leveled sharp criticism at the
latter. The essential point is that in this report the view is expressed
that, as a matter of fundamental principle, Soviet prisoners of war
cannot be treated according to the rules of the Geneva Prisoner of War
Agreement because the Soviet Union did not participate in this.
Moreover, this report refers to the decree of the Soviet Union of 1 July
1941 concerning the treatment of prisoners of war regarding which the
opinion of the Counter-Intelligence of the Armed Forces confirms that on
essential points it agrees with the rules of the Geneva Prisoner of War
Agreement. It is, however, characteristic that in this decree it is
ordered that noncommissioned officers and enlisted men taken as
prisoners of war may be put to work for industry and agriculture inside
the camp or outside and that the only restriction is that the use of
prisoner-of-war labor is forbidden: (a) in the combat area, (b) for
personal needs of the administration as well as for the needs of other
prisoners of war, so-called orderly service (see Pages 12-13 of the
Speer document book, Document Number EC-338).
An order restricting the use of prisoner-of-war labor according to
Articles 31 and 32 of the Geneva Prisoner of War Agreement is not to be
understood from the above-mentioned command. It now remains to
investigate whether the stipulations of Articles 31 and 32 of the Geneva
Prisoner of War Agreement flow from general rules of international law,
which should be observed even if there were no special ruling by treaty,
such as the Geneva Prisoner of War Agreement represents. This cannot
generally be affirmed. The above-mentioned treaty regulations cannot be
regarded as the prescription by treaty of a generally valid legal
concept, if so important a member of the group observing international
law as the Soviet Union does not accept a ruling of this sort.
Proceeding from this idea, the employment of Soviet prisoners of war in
work forbidden by Article 31 of the Prisoner of War Agreement is not to
be objected to. The Italian military persons interned in Germany after
Italy’s fall do not come under the regulations of the Geneva Prisoner of
War Agreement since no state of war existed between Germany and Italy.
Moreover, these military internees did not come under the restrictions
of Article 31 in their employment as manpower. It must, however, be
pointed out that these military internees are comprised in the
enumeration of Mr. Deuss of prisoners of war occupied in the armament
industry.
In conclusion, the following is to be said on this point:
The procurement of prisoners of war for the factories was effected
exclusively through the offices of the Plenipotentiary General for the
Allocation of Labor. The control of the proper allocation in accordance
with the Prisoner of War Agreement depended on the labor commitment
officer of the Stalag, who in return was himself finally responsible to
the general for prisoner-of-war affairs at the Army High Command. It was
not possible for the Defendant Speer to have any influence on the
distribution of prisoners of war and their occupation. The Prosecution
have not been in a position to bring any proof from which the
participation of the Defendant Speer in unlawful employment of prisoners
of war might be deduced. These assertions of the Prosecution have
remained unproved.
The Prosecution have now further brought against the defendant the
charge that the Todt Organization, at the head of which Speer was placed
in February 1942 after Dr. Todt’s death, had used native workers to
build fortifications in the French coastal areas. As far as the Todt
Organization is concerned, it is a purely civilian institution of the
general construction inspector for road maintenance. It worked on a
private economic basis, that is, it allocated the construction work that
it intended to carry out to private firms, also to foreign firms, which
were established in the respective countries; and it merely supervised
the execution of the constructions. The private firms could undertake
the procurement of the necessary materials and labor themselves. For the
very reason that native construction enterprises were used, it was
possible to eliminate the difficulties which otherwise would have
opposed themselves to the execution of the work. The workyards of the
Todt Organization enjoyed a certain favor with the natives because the
workmen had the assurance that they could not be compelled to go to
Germany to work in industry there because these places of construction
of the Organization Todt were considered as urgently important. The
workers went voluntarily to the firms which were active for the Todt
Organization to obtain this security. The example, quoted by the
Defendant Speer during cross-examination, of 50,000 Todt Organization
workers who were once taken from France to Germany to repair damages
caused to two west German valley dams by air attacks, made such a bad
impression on the workers employed in other Todt Organization
construction sites that there was nothing else left to be done but to
send these 50,000 workers back to France. In the meantime, many workmen
of the Todt Organization construction sites in France disappeared,
because they feared they would be taken to Germany sooner or later
against their will, while up to then they had regarded employment in
enterprises which worked for the Todt Organization as insurance against
an eventual transfer to Germany. Only the return of the above-mentioned
50,000 workers to France, which was brought about by the Defendant Speer
when these unfavorable consequences developed, restored the hitherto
existing state of confidence.
Here, too, the fact should be emphasized that, as a result of the event
described, the Todt Organization workers were free to go where they
wished in France—in any case, that no coercion was used against them.
The consequence of this was that when the protected plants
(Sperrbetriebe) were established in France, all enterprises working for
the Todt Organization were declared protected plants and therefore could
not be otherwise employed. This instance shows that the view of the
Prosecution that the workers of the Todt Organization were forced into
the Todt Organization plants against their will is a wrong
interpretation.
As it is established that the French Government agreed to the use of
French workers in construction sites under administration of the Todt
Organization as well as in any other armament industries in Germany and
the occupied territories, illegality is excluded. It should not be left
unmentioned here that, after the conclusion of the Armistice Agreement
with France, the latter took no part in military hostilities. The
Armistice Treaty certainly did not mean an agreement for a truce but,
_de facto_, a final end to hostilities and was to serve as a preparation
for the conclusion of peace. It was no longer a period of war, but it
was not a definite return to peacetime conditions regulated by treaty. A
resumption of hostilities was, however, according to both partners to
the Armistice, completely out of the question. The Armistice was
exclusively to regulate the situation until the definite conclusion of
peace. Stipulations of the Hague Convention for Land Warfare as well as
of the Prisoner of War Agreement forbidding services which run counter
to loyalty toward one’s own country still at war do not apply because
the country is no longer at war. After a general armistice the
production of arms and munitions can no longer be directed against the
ally which has retired from hostilities but only against other allies
still in the field. The afore-mentioned principle of respecting the
loyalty to one’s own country can no longer be applied in such cases.
It must, moreover, be pointed out that the Todt Organization was in no
way a paramilitary organization as has been falsely asserted. Apparently
this false assumption has been strengthened by the fact that the German
members of the administration of the Todt Organization abroad wore a
uniform. These people were considered as Armed Forces followers; but on
the other hand the labor engaged by the firms and the construction
workers of the firms, as well as the technical personnel, stood in no
such relation. The charge cannot be made, therefore, that these native
workers were indirectly incorporated into an Armed Forces’ organization.
A further charge against the Defendant Speer consists in the fact that
prisoners from concentration camps were employed in the economic sector
controlled by him. The defendant admitted this. Criminal responsibility
because of this fact does not, however, stand the test of a legal
verification. The employment of convicts for work of an economic nature
has always been a practice in Germany. It could be carried out in
various ways, partly by employment within the convict prison itself,
partly outside. Owing to the shortage of labor due to the
intensification of the economic war, it was necessary to draw upon the
labor available in the concentration camps.
The Prosecution have submitted documents from which can be seen how much
trouble was taken by the offices subordinate to the Reich Minister
Himmler to use the reserves of labor contained in the concentration
camps for the construction of their own SS plants; and the Defendant
Speer has supplied information during his hearing before the Court on
20-21 June regarding Himmler’s efforts to build up a separate armament
industry of his own, subordinate to him only, which would render any
control over the production of arms in these intended SS plants
impossible, so that the SS could have provided themselves with weapons
without supervision by the Army or any other offices.
The Defendant Speer successfully fought this. It was agreed that Himmler
would release a part of the inmates of the concentration camps to be
employed in the armament industry. The inmates of the concentration
camps would thus improve their situation, since they obtained the higher
food rations provided for those on long shifts or doing heavy work, as
has been attested by witness Riecke; moreover, they left the large
concentration camps and were no longer under SS control during working
hours, but in the plants they were subject to the control of foremen and
skilled workmen appointed by the plants themselves.
It is true that to avoid transportation and marching difficulties
special camps were erected near the plants or working places where they
were employed, and these were not accessible to the supervision of the
plant managers nor to the control of the offices of the Defendant Speer
but were exclusively under the direction of the offices in charge of the
administration of the concentration camps. For the poor conditions
prevailing in such camps neither the plant manager nor the offices of
the Defendant Speer can be held responsible. In general, as attested by
the letter of the department chief Schieber of 7 May 1944 to the
Defendant Speer (Speer Document Book 2, Page 88), the inmates preferred
work in such plants rather than be assigned by the administration of the
concentration camp itself. And Schieber quite clearly states in his
letter that for these reasons the employment of concentration camp
inmates should be extended in order to improve their lot. But he further
states that the number of concentration camp inmates employed in the
armament industry amounted to 36,000 and that this figure was
decreasing. The defendant’s assertion, however, at his interrogation
that the total number of concentration camp workers employed in the
armament industry amounted to 1 percent of the total number of workmen
employed in the whole armament industry has been calculated too high. Of
4.9 million workmen engaged in the final processing of armaments, the
figure of 36,000 represents only 7 per thousand. The number of
concentration camp inmates employed in the armament industry represents
a very small part of the total number employed in the final processing
of armaments, that is, of the total number employed in the plants
manufacturing finished products.
These figures show how misleading the assumption of the Prosecution is,
that the employment of such prisoners in the armament industry had
resulted in an increased demand for such labor and that this increased
demand was satisfied by sending to concentration camps people who under
normal conditions would never have been sent there. The opinion that the
employment of prisoners from concentration camps in the armament
industry led to an increase in the number of concentration camp inmates
is disproved by Schieber’s letter already mentioned (Exhibit Number
Speer-6, Page 88) and by his testimony, also submitted as Exhibit Number
Speer-37. According to this the employment of concentration camp inmates
in the armament industry occurred for the first time in the autumn of
1943, and the number of prisoners employed there reached its peak with
the maximum figures of 36,000 in March 1944 and from that time on
actually decreased. Therefore the conclusions of the Prosecution in no
way bear examination. Nor has proof been brought forward that Speer had
attempted to have people sent to concentration camps.
At his interrogation the defendant admitted that everywhere in Germany
people were afraid of being sent to a concentration camp. The
population’s dread of concentration camps was quite justified, for it
depended only on the judgment of the police authorities under Himmler
whether a person was sent to a concentration camp or not; further,
because there was no legal authority to check the charges resulting in a
transfer to a concentration camp; and finally—and this is the main
reason—because it was left entirely to the discretion of the
concentration camp authorities to decide for how long one was to be sent
to a concentration camp.
The Prosecution have further asserted that Speer went on having
concentration camp inmates work in the armament industry after he had
obtained knowledge of conditions prevailing in the Mauthausen Camp after
a visit he had made there. That this was not the case is proved by the
evidence of the defendant on this point. As it was only a hurried visit
for the purpose of instructing the camp administration to desist from
tasks which served purely peacetime purposes but rather place labor at
the disposal of the armament industry, the Defendant Speer could only
obtain a superficial impression of the living conditions in the camp. On
this point his evidence may be referred to.
Moreover, through witnesses for the Prosecution, detailed reference has
been made to the fact that during such visits to concentration camps by
important personalities, the camps were seen from the best side only,
and any signs of atrocities, et cetera, were carefully removed so that
the visitor received no unfavorable impressions.
In connection with this question we will deal with the further charge of
the Prosecution, which asserts that Speer had approved using Hungarian
Jews for the construction of the bombproof aircraft factories ordered by
Hitler. In this respect reference must be made to the evidence of the
witness Milch and that of the witness Frank. Milch stated that Speer,
who was ill at the time, strongly opposed these constructions but that
Hitler, who demanded that the work be undertaken, commissioned Dorsch,
the leader, of the Todt Organization, to carry them out. So that the
controversy between Hitler and Speer should not become known to
outsiders, Dorsch officially remained subordinate to Speer; but in this
matter he had to deal directly with Hitler alone and was immediately
subordinate to him. In his evidence Milch further stated that these
construction plans were never actually carried out. I have submitted
Hitler’s order to Speer of 21 April 1944 as Exhibit Number Speer-34,
Page 52, in my document book (Speer Document Book 1). This order clearly
shows that Hitler designated Dorsch as being directly responsible to
him, since the appointment of Speer, who was given the duty of
incorporating these tasks into the building plans under him, was of a
purely formal nature. The evidence given by Field Marshal Milch is thus
confirmed by this letter.
To support the opinion of the Prosecution that the Defendant Speer had
helped send people to concentration camps, a statement by Speer at a
sitting of the Central Planning Board of 30 October 1942 on the question
of shirkers is quoted. In this connection we must look at the evidence
of the Defendant Speer in the witness box where he declared that upon
this statement no steps to stop this evil were taken with the
Plenipotentiary General for the Allocation of Labor either by the
Central Planning Board or by himself. In reality, nothing was done about
it. It was only in November 1943 that Sauckel issued a decree against
shirkers. The term “shirker” is applied to those workers who evade their
obligations by simulating illness or who stay away from work under
flimsy pretexts or for no reason at all.
It may incidentally be mentioned here that economic warfare did not
neglect even this question. Efforts were made in every imaginable way to
dampen the worker’s spirit. By dropping leaflets and through other
channels of information, the workers were told how to feign sickness and
slow up their work, _et cetera_. At first this propaganda succeeded only
in isolated cases. Since such isolated cases had an unfavorable
influence on the working discipline of the personnel as a whole, the
Defendant Speer discussed the possibility of police intervention. Speer
did not, however, take steps of any kind which would have led to
practical action on the part of the Police. It was not until a year
later that a decree was issued by the Plenipotentiary General for the
Allocation of Labor, first making it an obligation for the employer to
use disciplinary penalties. In particularly grave cases, the trustees
for production could ask for court punishment. Based on this decree
sentences could be pronounced providing for transfer to a workers’
training camp for a term of 56 days. Only in exceptionally grave cases
of infractions of the working law did the decree of the Plenipotentiary
General for the Allocation of Labor provide for transfer to a
concentration camp.
It must be mentioned here that this decree was applicable both to native
and foreign workers, for in no case were native workers to be treated
differently. In the cross-examination of Defendant Sauckel, the French
Prosecution produced the document about a meeting of Sauckel’s labor
authorities at the Wartburg. At this meeting Dr. Sturm, the specialist
on questions of labor law with the Plenipotentiary General for the
Allocation of Labor, gave a lecture on the punishment of workmen; and it
was thereby established that only an infinitesimal percentage of workers
had to be sentenced to penal punishment.
But from this it is again evident that the Prosecution have brought
forward no proof for the assertion that, as a consequence of Sauckel’s
decree concerning shirkers, the concentration camps were filled; so that
conclusive proof is lacking that Sauckel or the Defendant Speer
contributed by any measures they took to the filling of concentration
camps.
In his statement before the Central Planning Board of 22 May 1944 (Page
49 in my document book, Speer Document Book 1) Speer pointed out that
the escaped prisoners of war who were apprehended by the Police had to
be taken back to their work. From this remark we see the basic attitude
of the Defendant Speer, who did not want to see the escaped prisoners of
war thrown into concentration camps but demanded that they be
immediately incorporated into industry. So far the Prosecution has not
been able to bring forward any proof that will stand the test for the
assertion that Speer had the concentration camps filled in order to
obtain labor from them.
Mr. President, perhaps now I may go into the question which you asked me
at the beginning of my plea as to how I interpret Paragraph 6(a) of the
Charter in regard to the Defendant Speer, especially in regard to the
terminology: “The waging of a war of aggression.” I should like to say
the following: The Charter, under 6(a), cites, among other punishable
actions, the waging of a war of aggression. As for the definition of a
war of aggression, I need say nothing here. Professor Jahrreiss has
already done that in detail. Here it is only the interpretation of the
term “the waging of a war of aggression” that is in question. My point
of view is that a war of aggression can be waged only by the person who
has supreme command. All others are only led, even if their
participation may mean a considerable contribution to the war.
In the case of the Defendant Speer, therefore, the waging of a war of
aggression cannot be applied. I should like to point out the following
as well: In a session on about 28 February or 1 March, one of the judges
told Justice Jackson that the Prosecution had represented the point of
view that the charge of a war of aggression was concluded with its
outbreak. I can only share this opinion.
During the hearing of evidence I had ample opportunity to state the
activities of the Defendant Speer during the last phases of the war from
June 1944. I can, therefore, confine myself now to proving in regard to
this detailed chronological description that the entire testimony of
Speer is covered almost completely by testimonies of other witnesses and
by documents. The written statements of witnesses, which I refrained
from reading before the Court, run entirely along the same lines,
although the witnesses came from different camps and expressed
themselves in a completely unbiased manner.
Beginning with June 1944 the Defendant Speer readily reported to Hitler
on the situation of his armament production, and he expressly pointed
out at the same time that the war would be lost if such decline of
production were allowed to continue. This is proved by the memoranda of
Speer to Hitler submitted as Exhibits Speer-14, 15, 20, 21, 22, 23, 24.
As stated by the witness General Guderian, Chief of the General Staff of
the Army, Hitler from the end of January 1945 defined any such
information as high treason and subjected it to corresponding
punishment. Nevertheless, as it appears also from the statement of
General Guderian, Chief of the Army General Staff, Speer stated clearly
time and again to Hitler as well as to Guderian his opinion about the
prospects of the war.
Hitler had especially forbidden that third persons should be informed
about the true situation of the war. Nevertheless, after the severest
orders for destruction had been issued by Hitler, Speer informed the
Gauleiter and the commanders of various army groups that the war was
lost and thus helped prevent, in part at least, Hitler’s policy of
destruction. This is evident from the testimonies of witnesses Hupfauer,
Kempf, and Von Poser.
Hitler declared to Speer on 29 March 1945 that the latter would have to
take the consequences customary in such cases, if he continued to
declare that the war was lost. This conversation is contained in the
testimony of the witness Kempf. In spite of it Speer traveled 2 days
later to Seyss-Inquart—on 1 April 1945—in order to explain to him,
too, that the war was lost. The witness Seyss-Inquart and the witness
Schwebel in the interrogations of 11 June 1946 and 14 June 1946 stated
that this conversation with Speer of 1 April 1945 occasioned the
conferences of Seyss-Inquart with the Chief of the General Staff of
General Eisenhower, General Smith. This led finally to the handing over
of undestroyed Holland to the Allies.
On 24 April 1945 Speer flew once again to Berlin, which was already
besieged, in order to persuade Hitler that this senseless battle should
be given up, as is evident from the testimony of the witness Poser. In
his last will Hitler dismissed Speer on 29 April 1945. The American
Chief Prosecutor, Chief Justice Jackson, in his cross-examination was,
therefore, obliged to concur with the Defendant Speer that he evidently
was the only man who told Hitler the whole truth.
The representatives of the Prosecution have produced no evidence that
destructions of industries took place in Poland, the Balkans,
Czechoslovakia, France, Belgium, Holland during the German retreat. This
is to be credited to the Defendant Speer above all who, partly even by
falsely interpreting existing orders, prevented the destruction of the
industries of these countries as ordered by Hitler. That Speer was
convinced as early as the summer of 1944 that this destruction should be
prevented in the general European interest is evident from the testimony
of the witness Von Poser. It would have been easy by executing the
orders to cripple completely the highly developed industries of Central
Europe and of the occupied western European countries for 2-3 years and
thus destroy the entire industrial production and civilized life of
these peoples and even make their own reconstruction impossible for
years.
The witness Seyss-Inquart has stated in his interrogation on 11 June
1946 that the calculated destruction of only 14 points in Holland would
have absolutely destroyed the basis of existence of this country. The
destruction, for instance, of all power plants in these countries would
have produced an effect similar to the destruction in 1941 by the
Soviets of two or three power plants in the Donets territory. In spite
of all efforts it was not until the summer of 1943 that some scanty
production could start again there. Similar and still more far-reaching
consequences had to be expected from carrying out Hitler’s orders on the
European continent.
After the success of the invasion of these occupied territories Speer
gave the authorization to refrain from any destructions, as is confirmed
by the witnesses Von Poser, Kempf, Schieber, Kehrl, Rohland,
Seyss-Inquart, and Hirschfeld. Immediately after the appointment of the
Codefendant Dönitz as successor to Hitler, he submitted to him orders
prohibiting any destruction in the still occupied territories of Norway,
Czechoslovakia, and Holland, as well as Werewolf activities, as is shown
in the testimony of the witnesses Von Poser and Kempf.
Although Speer had no direct authority for the destruction of industries
in the occupied territories, he had to accomplish this task on his own
responsibility and through his agencies within the borders of the
so-called Greater German Reich. He was kept busy in this connection
trying to obstruct total destruction of all real values, which was
obstinately demanded by Hitler. Information on this desire to destroy on
the part of Hitler and many of his Gauleiter is furnished in the
testimonies of witnesses Guderian, Rohland, Hupfauer, Von Poser, Stahl,
and Kempf.
The most important document in this regard is the letter of Speer to
Hitler of 29 March 1945 submitted as Exhibit Number Speer-24, in which
Speer repeats again Hitler’s remarks during the conversation on 18 March
1945. This document shows clearly that Hitler had made up his mind to
destroy completely the foundations of the life of the German people.
This document should yield abundant information about Hitler’s time for
any future historian. In connection therewith follows the evidence of
General Guderian who certifies that in February 1945 Hitler, 1.)
identified his inevitable fate with that of the German people, 2.)
wished to continue this senseless fight by all means and thereby, 3.)
ordered the reckless destruction of all things of real value. That is
Guderian on Page 177 and Page 179 of my document book.
At the same time the clear demolition and evacuation orders of Hitler
and Bormann, which were issued the day after the conference with Speer,
have been submitted to the Tribunal as documents under Exhibits
Speer-25, 28.
Ever since the middle of March 1944 Speer, considering this war
inevitably lost, was determined to maintain the vital necessities for
the German people, as has been confirmed by the witness Rohland.
Notwithstanding the growing danger, he repeated this determination with
increasing urgency to his collaborators, as the witnesses Kempf, Von
Poser, and Stahl can certify for the months of July and August 1944 and
the witnesses Stahl, Kempf, Von Poser, Rohland, and Hupfauer for the
critical period from February 1945 onward.
Numerous orders of Speer dealing with the preservation of industrial
plants issued between September 1944 until the end of March 1945 were
submitted to the Tribunal. They were first partly issued without
Hitler’s authorization; but by a clever exploitation of Hitler’s hope
that these territories could be reconquered, they were in part
subsequently approved by him. The testimonies of the witnesses Rohland,
Kempf, and Von Poser, as well as Speer’s numerous memoranda regarding
the war situation, prove that he exploited Hitler’s illusion, which he
did not share, in order to prevent these demolitions.
Since the beginning of February 1945, Hitler no longer lent an ear to
any such argument. On the contrary, the introduction to his demolition
orders of 19 March 1945 shows that he considered it necessary to oppose
actively such argument. In counterorders, such as those of 30 March 1945
to all industrial plants, as well as those of 4 April 1945 for all
sluices and dams, Speer gave instructions—in opposition to the orders
issued by Hitler—not to undertake any industrial demolitions. This
likewise is corroborated by the witnesses Kempf, Von Poser, and Rohland.
During the month of March the executive power for the demolition of
industrial plants and of other objects of value was transferred from
Speer to the Gauleiter.
During this period Speer acted in open insubordination, and on trips to
the danger zones he arranged for the sabotage of these orders. Thus, for
instance, by clever planning he withdrew the stocks of explosives from
the grasp of the Gauleiter, as stated by the witnesses Von Poser, Kempf,
and Rohland, and gave orders that the so-called industrial explosives,
which were used for demolition, should no longer be produced, as is
proved by the statement of the witness Kehrl, the Chief of the Office
for Raw Products of Speer’s Ministry.
It seems important that Speer had urgently drawn Hitler’s attention to
the consequences which the demolitions would have for the German people,
as is shown in Speer’s submitted memorandum dated 15 March 1945 (Exhibit
Number Speer-23). In this Speer, for example, has established that by
the planned demolition of industrial plants and bridges, in the Ruhr for
instance, the reconstruction of Germany by her own forces after this war
would be made impossible. Thus it is without doubt mainly to Speer’s
credit that the industrial reconstruction of western and central Europe
can make progress today and that in France, Belgium, and Holland,
according to their latest reports, production has already reached the
level of the peacetime production of 1938.
Speer was the minister responsible for the means of production, that is,
the factories and their installations. Thus he sat in the transmission
center through which Hitler’s intended demolition orders must
necessarily pass. We have noticed in this Trial how in an authoritative
system such centers are in the position to carry out on a big scale the
orders of the head of the State. It was a fortunate coincidence that at
this decisive period a clear-thinking man like Speer directed this
office of industrial demolition.
But with increasing intensification Speer took measures beyond his
sphere of action in order to ease the transition for the German people
and at the same time to shorten the war. Thus Speer tried to prevent the
destruction of bridges. Every German knows that up to the last days of
the war and to the farthest corner of the German Reich, bridges were
destroyed in a senseless way. Nevertheless, his efforts had no doubt a
partial success. The numerous conferences which Speer held in this
connection with military commanders are testified to by the witnesses
Kempf and Lieutenant Colonel Von Poser. This witness was Speer’s liaison
officer with the Army, and accompanied him on all trips to the front.
These conferences were partially successful. Finally by the middle of
March 1945 the Chief of the General Staff of the Army, General Guderian,
and Speer, according to the latter’s proposal, tried to obtain Hitler’s
agreement to alter his demolition orders regarding bridges; but they did
not succeed. This is confirmed by the witness, General Guderian.
Knowing the possible consequences of those bridge demolitions, Speer
finally, on 6 April 1945, issued 6 orders in the name of General Winter
of the High Command of the Armed Forces to spare the bridges of
essential railway lines in the Reich and in the entire Ruhr territory.
These unauthorized orders were confirmed by the statements of the
witnesses Von Poser and Kempf.
At the end of January 1945 he noticed that from a long-range point of
view, the guarantee of sufficient food supplies for the German people
and the spring tilling of fields for the harvest of 1945 in particular
were endangered. Speer, therefore, allowed the requests for armament and
production which were in his jurisdiction to be superseded and gave
priority to the supply of food.
That this was done not only on account of the actual food situation but
was mainly in order to relieve the transition period after the
occupation by the Allied troops is proved by the statements of the
witnesses Hupfauer, Kempf, Rohland, Von Poser, Riecke—State Secretary
in the Ministry of Food—Milch, Kehrl, and Seyss-Inquart.
When Speer believed that he had new reasons for apprehension that
Hitler, induced by his close collaborators in Party circles, would use
poison gas in the fall of 1944 and then in the spring of 1945, he
opposed this determinedly as proved in his cross-examination by the U.S.
prosecutor, Justice Jackson, and by the testimony of the witness Brandt.
Speer’s statement that due to this apprehension he had closed down the
German poison gas production as early as November 1944 was confirmed by
the witness Schieber. Speer at the same time established that the
military authorities unanimously opposed such a plan.
Finally, since the end of February 1945, the Defendant Speer had tried
by planning conspiracies to have the war brought to an earlier end.
The statements of the witnesses Stahl and Von Poser show that Speer had
planned other violent measures. Chief Justice Jackson has established,
too, in the course of Speer’s cross-examination, that the Prosecution
knew of further plans which were to be executed under Speer’s
leadership. Apart from all these activities, Speer’s political attitude
is illuminated by two facts:
1) In Speer’s memorandum addressed to Hitler, submitted as Exhibit
Number Speer-1, the defendant establishes that Bormann and Goebbels
called him alien and hostile to the Party and that a continued
collaboration would be impossible, should he and his assistants be
judged by party-political standards.
2) In their government list of 20 July 1944 the Putschists quoted Speer
as Armament Minister and as the only Minister from the Hitlerite system,
as stated by the witnesses Ohlendorf, Kempf, and Stahl. Would these
circles have proposed Speer as Minister, both in Germany and abroad, if
he had not been considered an honest and nonpolitical expert for a long
time? Is not the very fact that he, as one of the closest collaborators
of Hitler, was chosen for this post a further proof for the high esteem
in which he was held by the opposition.
My Lords, let me say a few more fundamental words about the Speer case
itself. When the defendant took over the office of Minister at the age
of 36, his country was in a life-and-death struggle. He could not evade
the task with which he had been charged. He devoted his entire energy to
the solution of the task, which seemed almost insoluble. The success he
obtained there did not cloud his view of the actual condition of things.
He realized only too late that Hitler was not thinking of his people,
but only of himself. In his book _Mein Kampf_ Hitler wrote that the
government of a people always had to remain conscious of the fact that
it should not plunge the people into disaster. Its duty was rather to
resign at the right time, so that the people could continue to live.
Naturally, such principles were valid only for governments in which
Hitler had no part. As far as he himself was concerned, however, he was
of the point of view that, if the German people should lose this war,
they would have proved themselves the weaker nation and would no longer
have any right to live. In contrast to this brutal egoism, Speer still
felt that he was the servant of his people and his nation. Without
consideration for his person and without consideration for his safety,
Speer acted as he considered it his duty to act toward his people.
Speer had to betray Hitler in order to remain loyal to his people. One
cannot but respect the tragedy which lies in this fate.
THE PRESIDENT: I now call on Dr. Von Lüdinghausen for the Defendant Von
Neurath.
DR. OTTO FREIHERR VON LÜDINGHAUSEN (Counsel for Defendant Von Neurath):
Your Lordship, Your Honors, “Never before has war impressed me as being
quite so abominable.” This is what Napoleon Bonaparte wrote to the
Directorate in Paris in the year 1799 after the victorious capture of
Jaffa where he had ordered the shooting of 2,000 captured Turks. This
statement by one of the most outstanding warriors of all nations stood
for unqualified condemnation, not merely of war as such, but also of all
means used in the conduct of war considered unavoidable but tolerated at
that time. The ethical condemnation of war voiced in this phrase was not
uttered in vain. As early as the middle of the last century, high-minded
individuals made efforts to eliminate at least some of the horrors of
war. The founding of the Red Cross in Geneva was the first far-reaching
result of such endeavors, the first fruits of Napoleon’s phrase. But I
dare say, this phrase is, so to speak, also the actual impetus which
gave birth to this present Trial. It, too, was caused and dictated by
the endeavor, not only to restrict methods of warfare, but beyond that
to find means and ways to eliminate war altogether as a political
measure. It strives for the same high goal: To create a body of
international law to govern the relations between the peoples of all
states, a law to which governments and peoples will submit, if they wish
to take their place among civilized states, and by which they will be
forced to abide in the same manner as the individual national of a state
must abide by the law his state has established for the common existence
of its people. It may be difficult for you, Your Honors, and for the
entire world to understand how infinitely painful it is for us Germans
that it is just our state and our people who have furnished cause for
the creation of such international law by a war in which we engaged; yet
my client, the Defendant Von Neurath, and I could not help but welcome
this Trial, because the greatest efforts were made by my client during
his entire official activity, from his first day in office to the last,
to avoid war and to serve peace. And I do not hesitate to emphasize
this, although it is because of an entirely new principle of law that my
client is facing this Court today. Because for the first time in history
the idea is to be carried into practice according to which the statesmen
of a nation are to be held personally responsible and are to be punished
for the inhuman acts of wars of aggression caused by them. This thought,
which this High Court is about to carry into practice as a principle of
law, is a novelty in the history of international law. But if the
present Trial and the Charter on which it is based is to be more than a
single procedure worked out and intended for this one case—in other
words for this war just ended—if it arose not merely from the thought
of vengeance because of harm and damage done to the victorious nations
and if it really was brought forth by the will and the decision to
eliminate war in itself for good by holding the statesmen of the nations
personally responsible, then this constitutes a deed which the sincere
conviction of every peace-loving person will welcome. It furthermore
contains two elements calculated to revolutionize all that was
heretofore known in this world regarding the foreign policy of states
and to raise it to a new and undoubtedly higher ethical basis.
Since the famous speech made by Pericles and since Plato’s state
doctrines it is an ancient, well-established postulate for the policy of
a statesman to endeavor to obtain for his people, for the state under
his stewardship, the highest possible level of existence, the
maintenance, and improvement of its standard of living, of its position
among the nations, irrespective of the means it might require. Every
nation on earth includes in its history statesmen who, seen in this
light, are extolled and honored as shining examples, and who went down
in history as such merely because they were successful, without
examining whether the means they used to obtain success were in harmony
or not with the ethical principles not only of the Christian but of all
leading moral philosophies. To this maxim the Charter of this High
Tribunal opposes a new maxim in that it plainly stipulates that every
war of aggression places culpability on the person responsible for the
war, regardless of whether the war was won or lost. However, this means
nothing else but subjection to the moral law—which rejects application
of force of any kind as a means of policy—of every state stewardship,
even the successful and the victorious.
If, however, this is to have practical meaning and is to be successful,
then there follows the subjection of every state stewardship to the test
and judgment of all other civilized states in the world. On that
principle of the Charter established by this High Tribunal it would call
for the examining and possible judgment of all inner-political measures
which, in retrospect, might be seen as actions of preparation for this
war. To discuss consequences resulting from this would lead too far;
this must rather be left to the discussion by scholars of state law and
to further developments, and I wish, therefore, to confine myself to
pointing to one consequence only, the consequence that the statesmen
involved in the war of aggression will be subject to such judgment of a
future international world court and will be liable to punishment, even
if that war of aggression ends in victory. Perhaps this is the main
point, reflecting the highest ethics of the stipulations and principles
established in the Charter.
If I particularly stress these points it is not because my client or I
doubt that the authors of this Charter were not fully aware of these
consequences too. But in the fact that this new tenet of international
law is to find application for the first time before the world forum and
by the Allied governments not through a power dictate but through a
court procedure based on objectivity and impartiality, in this fact my
client and I see proof that this court procedure had its birth in the
ideal aspiration of mankind to free itself from the scourge of war.
And even if my client and I fully recognize the important issue in this
Trial as based on the Charter, namely that in sharp contrast to the
principles of law of all democratic states, of every democratic-liberal
principle of law, it proposes to pass judgment and inflict punishment
for actions which at the time they were committed were not governed by
law, my client and I nevertheless are confident because of our
conviction that this High Tribunal will not base its verdict on
individual and incoherently joined actions, on single bare facts, but
that it will scrutinize and examine with care the motives and
aspirations which moved each individual defendant. If then you, Your
Honors, will establish, as I am convinced you will, that from the first
to the last day of his official activity as Reich Foreign Minister or as
Reich Protector, my client was moved by one desire only, that all his
deeds and actions were governed by one aspiration, to prevent a war and
its cruelties, to maintain peace, and that the very reason for his
remaining in office was to prevent war and its inhumanity through his
influence and that he did not withdraw from his post until he was forced
to conclude that all his efforts were in vain and that the will and
determination of the highest ruler of the State, Hitler, to wage war
were more powerful than he, then the fact of his membership and
continuance in office in the Reich Government until that moment cannot
possibly be construed as approval, much less as assistance and
copartnership in the planning, preparing, or waging of war, thereby
placing upon him joint responsibility for the war, and even for
cruelties and atrocities committed during its course.
The very fact of the application—an application made for the first time
in this Trial, at least in international law and in democratic
states—of the legal doctrine, that an action already committed can
subsequently be made punishable by law, results in the imperative demand
that the question of the subjective guilt of the defendant—in other
words the consciousness not only of the amorality and the presumed
criminality of the deed in question, but also the intent to commit the
deed or at least to offer active assistance despite such awareness—be
examined and answered before a verdict is arrived at. Disregard of this
postulate would not only rob this Trial of its high ethical importance
but would open wide the door to arbitrariness, making such court
procedure appear before the world, not as a real court in the truest
meaning but a power dictate wearing the robe of justice.
An extraordinary responsibility is thus placed upon your shoulders, so
great as has never before been placed on the shoulders of any court in
the world. Carrying out the will and the vision of the father of this
Trial, President Roosevelt, who passed away far too soon, it is your
task, Your Honors, to lay the first cornerstone for the temple of peace
of the nations of the earth. You are to lay the foundation for the
attainment of the ideal he envisaged, perpetual peace. Coming
generations are to continue to build on your judgment. You are to give
the directives according to which those who come after us must continue
to aspire to this high goal. It is not a precedent you are to establish,
not an individual case you are to judge and to punish the guilty men
according to your judgment, but you are to lay down the fundamental
principles of a new international law which is to govern the world in
the future. This alone, this task assigned to you, establishes the
meaning of this Tribunal, its justification, and its high ethical
inspiration, to which we yield. At the same time, however, this also
includes the recognition that the verdict to be established by you in
regard to these defendants is not a verdict in the ordinary meaning of
the word; it is not merely a judge’s sentence pronounced on behalf of
individual defendants and their deeds; but it is the new fundamental law
itself, the source from which all future courts are to draw, in
accordance with which your verdict is to be established.
It is, therefore, your task, Your Honors, to interpret the provisions of
the Charter according to their principle and to establish in practice
and for all time to come, the rules and principles of the Charter. The
responsibility which you thereby assume before history puts two
fundamental questions to you, the answers to which are all the more
complicated because the legal concept of conspiracy incorporated in the
Charter and forming the legal foundation of the Indictment is a concept
foreign not only to the majority of peoples, especially the European
peoples, but also because in some countries it owes its existence to its
previous application to the fight against common crimes and offenses
against the legal provisions governing domestic affairs and against
those alone. The postulate necessarily follows that the method of
interpretation and the application of this legal concept in
international law must never be the same as that employed in the fight
against common bands of gangsters, guilty of a breach of the social
order of a particular country and of the laws promulgated for its
protection. The latter ordinarily involves individuals of a more or less
amoral disposition, who act for reasons of selfishness, lust for money,
or other unethical instincts which place them outside the existing
social order. In the last analysis, however, and particularly when wars
of aggression are involved, international law does not deal with
individual statesmen but much rather with whole peoples. The age of
absolutism, where the will of the ruler alone determined the destiny and
acts of a people, has definitely passed. In this age it may be said that
one cannot imagine any avowed dictator or omnipotent despot who can rule
without or against the will, or at least the tacit approval of the
nation, at least its majority. And so—it is necessary to make this
known to the world—invisible behind the defendants, there sits also in
the prisoners’ dock our poor beaten and tortured German people, because
it placed upon a pedestal and selected as leader a man who led it to its
doom. From this follows of necessity the inescapable demand that,
contrary to the concept of a conspiracy applied in regard to ordinary
criminals, application of the concept of conspiracy applied in
international law must first proceed to investigate and examine how it
happened—how it could happen that an intellectual, high ranking people,
a people who gave so much to the world in terms of cultural and
spiritual gifts as the German people did—that it could hail a man such
as Hitler, follow him into the bloodiest of all wars, giving him the
best it had. Not until you, Your Honors, have taken this into
consideration and examined this question, will you be able to establish
a just verdict in regard to the individual defendants themselves, with
due consideration for their dissimilarity—a judgment which will stand
the test of history. Because of such reasoning and not merely by reason
of my right as defense counsel of the Defendant Freiherr von Neurath,
but also because of my duty as a German, I deemed it necessary to
explain in mere outline the fact of Nazi domination which the world
outside Germany cannot grasp; to make you visualize how it happened as a
result of the effects of the Versailles Treaty and finally, because of
the manner of its application, how it was bound to happen, true to
historical necessity.
In view of the short amount of time made available to me by the decision
of the Tribunal, I must refrain from reading that part of my final
pleading; but I express my definite hope that the Tribunal will
subsequently go to the trouble of reading it themselves and that they
will consider its arguments when pronouncing the verdict.
[sm type begins]After the world-embracing battles of her great emperors,
after the death of the last of them, the Emperor Barbarossa, the royal
sovereignty perished and consciousness of national unity became more and
more lost; the ancient hydra of dissension among the German tribes
raised its multiple serpent’s head. On the decayed ruins of the German
throne a new world of particularized territorial powers came into being.
Spiritual and temporal princes, free cities, counts and knights formed
in the course of the following centuries a shapeless confused mosaic of
incomplete greater, smaller, or infinitesimal state structures, which
undermined and strangled all desire for a unified state and nation.
Princes, nobility, freemen, and peasants all chose their own individual
ways. Particularistic and selfish interests of the different classes
frustrated all attempts to classify politically the abundance of
creative power within the German nation, and to reconstruct in some form
the decayed unity of state and nation. In addition to all this an event
occurred at the turn of the fifteenth century which was perhaps the
greatest tragedy in the history of the German nation: The Lutheran
Reformation, born of the deepest origins of German religious feeling and
thought. This Reformation, however, instead of uniting the various
German races, instead of arousing this nation split into hundreds of
small parts to a common ideal and to a consciousness of national unity,
brought a still greater and deeper schism, the schism of faith, to this
poor dismembered people under the rule of an emperor who, though
powerful again, not only failed to understand German mentality or the
Reformation born of it, but even felt hostile toward it.[sm type ends]
[sm type begins]For Charles V attempted to smite this Reformation, which
he considered heretical and sinful, with fire and sword and thus led the
German people into the darkest hour of their history. In the subsequent
wars of religion, Germans turned their weapons against Germans,
forgetting their kinship to such a point that they called in foreign
nations to aid them against their own German fellow countrymen and tore
each other to pieces side by side with them. With the end of the Thirty
Years War the helplessness of the German nation was finally settled. It
became the plaything of its neighbors’ desires, the welcome battlefield
of foreign nations; and all this occurred at the very time when the
English people under the leadership of their gifted Queen Elizabeth, and
shortly afterward under Oliver Cromwell and under a Parliament which,
freely elected by its people, was possessed of a sense of
responsibility, laid the foundation necessary for its ultimate position
as a world power; at a time when the French people, led by their
energetic and powerful kings after the defeat of a feudal aristocracy,
had long been welded together into full unity and into a nation. In
Germany, however, every German purpose became benumbed. Through poverty
caused by the long wars all national consciousness vanished, not only in
the political but also in the psychological sphere, even to the very
language. The people embroidered their ancient language with foreign
idioms, and the great philosophers and poets wrote in French or Latin.
Thus, in the petty troubles of a miserable existence, the mass of the
German people lost its last recollections of the sovereignty of their
Reich.[sm type ends]
[sm type begins]Unfamiliar and no longer understood, the Gothic
cathedrals tower up in this changed world as witnesses of the past glory
of the German burghers. Each lived only for himself, for his poor petty
existence. Was it to be wondered at that on such miserable soil, under
the rays emanating from the admired French monarchy, an absolutism
developed in almost all German courts, down to the smallest domains,
which enabled these more or less important gentlemen to copy the _Roi
Soleil_ of France? Only when, at the beginning of the 19th century,
Germany in alliance with other countries rose against the foreign rule
of Napoleon, did the Germans reawaken to consciousness of their racial
community by these wars of liberation.[sm type ends]
[sm type begins]After eight centuries the slumbering desire for a
revival of the ancient glory of a unified and honored empire of the
German nation in a new form was rekindled. But only some 75 years ago,
after decades of strife and disappointment, did this ardent dream become
reality, so that a unified German Reich could arise in a new form. In
this hour though, for the first time in its history, the German people
was taken into consultation by the new Constitution, to advise and
collaborate in the direction of this new Reich. Together with this
right, however, the common responsibility for the administration of the
State was also imposed. However enthusiastically and joyfully this new
right was received, the people could hardly judge at once of the eminent
seriousness of this duty. Was it not demanding too much that a people,
the bulk of whom had for centuries been excluded from any participation
in the leadership of its country and its fate, should learn in a few
years that which others had taken centuries to learn gradually,
something which was to be an essential part of its existence, thought,
acts, and feeling?[sm type ends]
[sm type begins]One of the leading men in the oldest democracy in the
world, the British Prime Minister, Stanley Baldwin, in his speech in the
House of Commons on 11 March 1935, declared democracy to be the most
difficult system of government, which can only function if the entire
population is able to think intelligently and to appreciate
well-considered opinions and is not liable to be led away by propaganda
and sentiment. This is the fundamental difference between the Germans
and the other western peoples, which cannot be erased by any dialectics
and which explains to a great part the developments of the last seven
decades. An entire population, however gifted and clever it may be,
cannot in a period of 50 years be trained and fully educated in a sphere
previously unknown. By experience alone, and even then only gradually
and slowly, are political intelligence, sense, and instinct evolved
together with a gift of perception of right and the understanding of
cohesion in political and social life, and likewise the knowledge that
each individual is himself responsible for what is done for and in the
name of his people. Inexorably the continuous action of the past in the
present is reflected in the history of those nations which do not
believe in this historical law nor wish to do so.[sm type ends]
[sm type begins]Inevitably, the primary consequence of nonparticipation
and lack of coresponsibility in the government for hundreds of years by
the German people was the belief that it could give its confidence to
the men charged with the leadership, the more so if such leadership,
particularly in matters of foreign policy, was in the hands of a
statesman like Bismarck, under whom the young Reich incontestably
flourished in all spheres, particularly in its economic life and under
whom it enjoyed a blessed period of peace such as it had not experienced
for a long time. Trusting and inexperienced as they still were, the
German people believed it could also meet the successor of a Bismarck
with the same confidence.[sm type ends]
[sm type begins]But even if in the sphere of domestic politics some
opposition was gradually voiced against the new policy, the bulk of the
German people was firmly convinced that in foreign policy the new
leaders would not divert from Bismarck’s peaceful trend. In its lack of
experience and faced with the secret diplomacy generally followed, the
German people were not in a position to judge whether the policy
followed by their leader was right or wrong. It therefore never occurred
to the bulk of the German people, nor could it occur to them, that the
policy followed by Bismarck’s successors might lead to war. To the
people itself the idea of war was quite remote. It had no other wish, no
other longing, but to work peacefully for the domestic development of
its recently created empire, and to live for the growth of its
prosperity. There was nothing beyond this wish that would have been
worth the blood of its sons.[sm type ends]
[sm type begins]The nation was therefore utterly disconcerted when the
first World War broke out and could not understand how other countries
could possibly believe it to bear the exclusive guilt for this war after
its Kaiser’s ostensible exertions for the preservation of peace. With
the greatest seriousness, inspired by the most sacred conviction that it
was now a matter of defending home, wife, and child against the
unprovoked attacks of hostile powers, it took to arms. And for the same
motive, the German nation has never, even after the collapse of its
powers of resistance through enemy superiority, to this day understood
or in any way sanctioned the admission of exclusive war guilt imposed
upon it by the Peace Treaty of Versailles.[sm type ends]
[sm type begins]Consequently it did not feel and, to this day, does not
feel this treaty to have been a real peace treaty, but a peace dictate
imposed upon it by the victorious powers, a dictate which, to it, is not
the expiation of a wrongdoing it committed, the kindling of a war, but
solely the expression of the purpose to destroy the unity and freedom it
had reconquered only a few decades back, and its existence as a nation
and a state.[sm type ends]
[sm type begins]Again this poor people stood on the brink of the abyss;
all that it had longed for and dreamed of during long centuries had
finally become reality a few decades ago, and now everything threatened
to crumble once more into rubble and ruin. Again it stood, as centuries
before, at the bier of what it possessed; again it stood in danger of
losing its existence as a people and a nation and of falling back again
into the misery of earlier times. Only one thing was left to it at this
time; and that was the consciousness of its national character, of its
solidarity as a nation. And it is a veritable page of honor in the
history of German social democracy that it made this consciousness; this
feeling of solidarity, its rallying cry, inscribed it on its banner,
preserved and strengthened it in the great masses of the people and
opposed with all its influence the separatism which was once again
rising, and so helped to preserve the unity of the Reich and of the
nation.[sm type ends]
[sm type begins]Although a great deal, it still was not enough, because
the Treaty of Versailles faced it as a terrible danger. This treaty put
the axe to the roots of its material existence, to its economic life,
and cast it for generations into an economic bondage which was bound to
suffocate it. I do not need to review these stipulations to you in
detail; they are history. After a short time they worked to the
detriment of the entire world, thus proving themselves untenable. But
whom did the German people have to regard as the principal author of
this treaty? France alone, who thereby once more believed she could
perpetuate the policy applied toward Germany since Richelieu of keeping
Germany down, if not of annihilating her for all time. That was the
desire and dream of a nation which proclaimed to the world the Rights of
Man, the same nation which 130 years before had written on its banners
the motto: Liberty, Equality, Fraternity.[sm type ends]
[sm type begins]To all this was added the internal revolution, which had
deprived it of any natural and given leadership which might have been
able to show it the way to combat threatening chaos. All by itself,
without any help, without any experience of its own, it had to create
for the first time a new nation, or rather the foundation stone for such
a nation—truly a gigantic task for a people which up to this moment, in
its entire past, had always been led, to which a right of
self-determination and therewith a duty of coresponsibility, had only
been given 50 years ago and then but to a modest extent. Was it
astonishing that this task should overtax its strength, that this
nation, which had not yet gained a firm political tradition and was torn
internally in many directions, soon became the victim and playground of
a variety of prophets who promised it salvation in all possible ways?[sm
type ends]
[sm type begins]So it came about, as it was bound to come about, that a
constitution was given to it in Weimar which did not suit either the
actual circumstances or the character of the German people or the
requirements of a strong state leadership, a constitution which did not
create a real democratic people’s state but only a party state, in which
not the people but rather the parties were made the supporters of the
state, in which merely the mechanical counting of the votes was assured,
while it was left to the parties to settle the conflicts resulting from
this. The inevitable result was an infinity of parties which fought with
every means for the votes of the masses and thereby created an unlimited
splitting of the people into a multitude of components, all fighting
tooth and nail among each other, which paralyzed any strong and
consistent state leadership from the beginning and indeed rendered it
impossible.[sm type ends]
[sm type begins]Right here, in the conflict of interests and allegiances
of the parties struggling with one another for supremacy in the state,
lies one of the tragic causes that explain the birth of National
Socialism and the subsequent seizure of power in 1933. For the history,
the rise, and the fall of re-emerging nations is determined by eternal
laws which develop and direct events with inexorable logic. Just as
without the great French Revolution a Napoleon would never have been
possible, so without the basic weakness of the Weimar Constitution there
could have been no Hitler. Under such conditions, which became
increasingly difficult, the German people took up the fight against the
destruction which threatened them.[sm type ends]
[sm type begins]Who refuses or fails to understand that they had become
the football of innumerable parties which fought for their votes, who,
out of egotistical interests, destroyed one government after another and
thereby made any strong, unified state leadership impossible? With
admirable courage and under exertion of their utmost strength, the
German people, nevertheless, had taken up and carried on this almost
hopeless struggle, had tried to fulfill the reparations, imposed by the
Treaty of Versailles, which were bleeding them white. They had even
accepted the inflation, which had left its imprint on their economic
life; and for the sake of the existence, above all, of their middle
classes and to avoid the selling out of their properties through foreign
capital, had persevered and conquered it.[sm type ends]
[sm type begins]But all their efforts, their labors, their privations
were ultimately of no avail. Their standard of living became lower and
lower, more and more factories had to close their doors, sales to
foreign countries increased more and more, for a piece of bread and
butter more and more items of the national wealth passed into foreign
hands, unemployment increased more and more, and finally almost 10
percent of the entire population were without employment and food.[sm
type ends]
[sm type begins]And why all this? The Western Powers, primarily France,
instead of mitigating in their own interests the impossible conditions
imposed upon Germany by the Versailles Treaty, used every opportunity to
weaken Germany’s situation still more and to make it more difficult, to
enslave the German people still more. I would only remind you, above
all, of the occupation of the Ruhr territory by France in 1922, which
was the reason why, in spite of superhuman efforts, Germany was not in a
position to meet the full amount of the reparations imposed upon her.[sm
type ends]
[sm type begins]Already in 1920, French troops had entered the Main
province on the doubtful grounds that, while subduing the Communist
revolt in the Ruhr area, the Reichswehr had entered demilitarized
territory. And in February 1921, at a London conference, new payment
conditions were laid down for Germany as the result of a delivery of
reparation coal to not quite the full amount, due to a Communist revolt
in the Ruhr area. When again these simply could not be met by Germany to
the full extent, Allied troops crossed the lower Rhine and occupied the
bridgeheads on the left bank of the Rhine. When on 3 May 1921 the
ultimatum, which had been prepared in London, was delivered in Berlin by
the victor nations, whereby the payment of 132,000 million marks in 37
years, and a quarter of the German export to England and France was
imposed on Germany, French and British troops already stood prepared to
march in in order to enforce this ultimatum.[sm type ends]
[sm type begins]In view of the coming plebiscite concerning the division
of the Upper Silesian industrial sector, the German Government had no
choice but to accept this ultimatum at a time when 30,000 million marks
were required to produce a 1,000 million in foreign gold currency. And
as, after the division of Upper Silesia between Germany and Poland to
Germany’s disadvantage, the year 1921 came to a close, Germany came
under the domination of the so-called Reparations Commission, which not
only dictated to Germany a number of new taxes but, moreover, also
demanded at once a payment of 280 million gold marks.[sm type ends]
[sm type begins]From the Economic Conference which met at Genoa on 10
April 1922, Germany hoped in vain for deliverance. From the start France
rejected any discussion of reparations and all other economic problems.
It was soon to become clear to the whole world what France was aiming at
by this uncompromising attitude. Weakened by the measures of the Western
Powers, the loss of the Upper Silesian industrial area, and the
vertiginous devaluation of the German mark, the German Government in
1922 saw itself twice forced to request delay in the payments. It had,
however, to pay for this delay by the acceptance of a financial control
by the Western Powers and by impotently standing by as the Germans were
evacuated and driven away from Alsace-Lorraine by France, their property
being confiscated by France. And when on 15 August 1922 the German term
policy finally collapsed, the German Reich could no longer meet fully
even deliveries in kind, so that in December 1922 the Reparations
Commission believed it could establish the fact that during the year
Germany, due to insufficient deliveries of lumber and telegraph poles,
had been guilty of a deliberate misdemeanor. France seized the
opportunity of this ostensibly deliberate misdemeanor to introduce the
right to impose sanctions.[sm type ends]
[sm type begins]In contrast to England and Italy, who did not insist on
territorial pledges, she permitted her troops to cross the Rhine and
occupied the Ruhr area. Her dream had come true. Germany, completely
without rights, had collapsed and was at her mercy. How does this open
desire for destruction, which no flower of rhetoric can deny, compare
with the community spirit, so strongly emphasized today by the French
Prosecution, with humanity and the teachings of the Christian faith?
Your Honors, I was forced to bring all these historical events once more
into the open in order to show you how the soil was prepared in which
grew the seed of National Socialism. Indeed, that seed had inevitably to
grow, and was only recognized as dragon’s seed when it was already too
late.[sm type ends]
[sm type begins]Almost simultaneously with the establishment of the
Stahlhelm in northern Germany, the German Labor Party was established in
southern Germany, which Hitler joined as its seventh member during 1919,
immediately assuming leadership. Both were derived from the war
experiences of a million soldiers and the comradeship which had been
carried to the highest level during the war, both had inscribed on their
banner the national idea, the re-establishment of a new national state.
While the Stahlhelm was satisfied in the main with the promotion of
national and socialist tradition amongst its members, which soon
numbered hundreds of thousands, and did not aim at party-political
goals, the German Labor Party under Hitler’s leadership soon extended
its aim very much further, thus making itself the political exponent and
mouthpiece of a national as well as a socialist aim, namely, that of
bringing about an internal regeneration of the entire nation by blending
the national idea with the social idea in approaching the problems of
the day.[sm type ends]
[sm type begins]This aim was based on the conviction that at some time,
as a result of Germany’s collapse, there would gradually occur a
complete change in the social structure of the German people and,
further, that a re-establishment of the Reich would only be possible if
a really uniform racial community necessary for this were created on a
national and social basis. According to Hitler’s conviction, this was
only possible if socialism were based on racial community and _vice
versa_ and both were welded into one unity. He therefore gave the German
Labor Party the program which is only too well known, while at the same
time changing its name to National Socialist German Labor Party. This
program was national in its demands for liberation from the shackles of
the Treaty of Versailles and for the establishment of a new unified
German Reich, socialist in those demands which, with special emphasis on
the value of labor, included above all the discontinuance of an income
without work or effort, nationalization of certain industries and the
resources of the soil, as well as abolition of the so-called servitude
of interest.[sm type ends]
[sm type begins]As soon as this program had been set up, there radiated
unmistakably from it the desire and will, slumbering in millions of
Germans, for a rebirth of Germany out of all her misery, for a new
national and social freedom. And in connection with this program there
is something which I must strictly and definitely establish once and for
all before the whole world. It is not true that the much discussed Point
2 of this program, which demands the setting aside of the Treaty of
Versailles, contains or contemplates a threat of force. The assertion of
the Prosecution to that effect lacks all justification. Nowhere in this
program was a single word said regarding force. Or does the Prosecution
recognize a threat of force in the reference to the principle of a
nation’s right of self-determination.[sm type ends]
[sm type begins]No wonder that this program, which, more than all other
Party programs, embodied the wishes and demands of the time, gradually
met with approval and exercised a greater and greater attraction. And it
was the ever-recurring burdens and reverses imposed on the German people
by the Western Powers, above all the occupation of the Ruhr area, which
more and more enhanced this attraction. For particularly the occupation
of the Ruhr territory, which the entire German nation regarded as
oppression and which had brought forth this courageous opposition,
permitted the awareness of national unity to flare up in all its
brilliance for the first time since 1918. A great tragedy lies in the
fact that the Western Powers did not recognize this first flaring up of
a new German national consciousness, did not understand this symptomatic
sign, and showed no interest at all. Who knows if, by a gradual
loosening of Germany’s economic and political shackles on the part of
the Western Powers, the development of things would not have taken an
altogether different course; and the world might have been spared the
bloodiest of all wars![sm type ends]
[sm type begins]But instead of loosening their grip, the Powers
tightened it more and more during the following years. Under the
pressure of the Western Powers the well-known Dawes Plan was drawn up in
1924, which changed the German reparation obligations into negotiable
papers and thus compelled Germany to contract enormous loans abroad
against the possibility that the Reichsbank might be emancipated from
the Reich and placed under the supervision of a special commission,
against the transformation of the Reichsbahn into a joint stock company
and the mortgaging of debts, taxes, and other securities, in order to be
able to comply with her reparation obligations. This, however, in face
of the impoverishment of Germany due to inflation and to the enormous
selling of German national property to foreign countries, together with
the necessity of having to pay interest on these loans abroad, meant a
still greater enslavement and subjection of German economy, of German
activity in all spheres, under the rule of foreign countries and foreign
capital. And the Ruhr area remained occupied.[sm type ends]
[sm type begins]In 1925 the Dawes Plan was followed by the Locarno Pact.
The latter, which was in the first place a political insurance scheme of
international finance against the risk contained in the granting of
loans to Germany, indeed in a certain sense connected the interests of
the Western Powers with Germany’s economic payment obligations and
compelled them to extend a respite to Germany and also gave her, through
her more or less compulsory admission to the League of Nations, the
basis for her eventual struggle for the recognition of equal rights; it
meant however, on the other hand, the repetition of the discrimination
against Germany by the repeated recognition of all military and
political obligations imposed upon her at Versailles. Meanwhile German
economy indeed appeared to flourish again as a consequence of the
capital pouring into Germany under the Dawes Plan; this economic
prosperity, however, turned out after a short time to be sham
prosperity. Another period of tremendous unemployment set in, one
factory after another was forced to close down again, the standard of
living constantly decreased, poverty became worse and worse.[sm type
ends]
[sm type begins]The distress of wide circles of the population and the
impossibility of complying with the German payment obligations became
constantly more obvious. Instead of helping Germany, however, the
Western Powers submitted a new plan at this moment of extreme distress,
the so-called Young Plan, which indeed brought with it the evacuation of
the Ruhr, although no alteration of the discriminating conditions of the
Versailles Treaty, but the imposition of immense yearly reparation
payments up to the year 1966. In order to protect Germany from a
catastrophe, the German Government was compelled to accept this plan.[sm
type ends]
[sm type begins]Not only a complete revolution of the economic
structure, but also a revolution of the sociologic structure was taking
place within the German people under pressure of all these events
attended by their difficulties. What had already been proclaimed in
World War I, and had found a definite shape during the years of the
inflation, now became conspicuous and grew into a decisive factor of
further development. The majority among the independent middle class and
the larger part of the bourgeoisie were gradually becoming proletarian
while the working classes partly sank more and more to the bottom of the
social order because of increasing unemployment; property was held only
by a small and dwindling part of the people. Through this revolution in
social conditions and class contrasts, the difference between the
bourgeoisie and the working class was practically eliminated and a large
community with a common destiny grew out of the distress of the times,
in which all parts of the people found themselves united.[sm type ends]
[sm type begins]This fusion of the upper and lower classes, which had
hitherto been separated from one another, produced a state of mind in
which the concept of racial community was innate and the inner contrasts
and distinctions of which were conditioned more by participation in
politics than attitude to the latter. These contrasts, this contrasting
attitude toward politics culminated in two ideas, that of nationalism
and that of international Communism. And here Hitler, and the NSDAP with
him, began that struggle for the soul of the German people in which he
took a resolute and purposeful stand in the struggle for the national
idea against the international communist idea. In this struggle, which
was started by him immediately after the occupation of the Ruhr with all
propagandistic possibilities and by fully exploiting his indisputably
extraordinarily suggestive influence on the masses, it was precisely the
Western Powers, with their policy of confining the German people in ever
closer bondage and driving it into ever greater distress, who furnished
him his keenest weapon.[sm type ends]
[sm type begins]With this weapon, he succeeded in rekindling the
national idea in more and more circles of the German people, so that in
the Reichstag elections of 14 September 1930 the NSDAP was already able
to figure in the Reichstag as the second strongest party. These
elections showed two things of singular significance: First of all, the
will of constantly expanding circles of the German people to
re-establish its honor and equality in the council of the nations, the
will to live of a people who for 12 years had been suppressed and
humiliated in its most elementary feelings and had been gagged and
threatened in its existence. However, they also showed that a large part
of the people had become tired of the eternal party strife in the
Reichstag and the Government and were longing for a leader to lead them
out of the threatening chaos, and that this large part of the people
regarded Hitler as the leader.[sm type ends]
[sm type begins]However, once again the Western Powers failed to
recognize this signal. They forgot, or did not want to acknowledge, that
the fundamental physical law that every living force, if subjected to
pressure without an outlet, will explode the shell around it, also
applies to the life of the nations, because the nations also represent a
living force. They forgot this, although in their own history they had
excellent examples for the correctness of this thesis: the French people
in their great Revolution, the English in Cromwell. Instead of obeying
this law, they continued without change in their previous policy. They
replied to the elections of 14 September 1930 by withdrawing the credits
granted to Germany, and France obstructed all attempts of the German
Government to obtain any kind of mitigation in the economic and
political fields.[sm type ends]
[sm type begins]In view of the limitation of time for their final pleas,
to which the Defense have been subjected, I must desist from describing
the results of this policy more closely; and I must limit myself to the
statement that the need of Germany became constantly greater, while
conditions in Germany were gradually becoming intolerable. No one who
has not personally lived through it can quite imagine what conditions
were like inside Germany at that time, and what appalling distress, what
atrocious pressure assailed her. Germany at that time was literally
suspended over the abyss because, in addition to the struggle for her
very existence, there was the struggle for the inner change of form of
the people, the struggle over the question whether the majority of the
German people was willing to surrender itself to socialism on a national
basis or a millenial international Communism.[sm type ends]
[sm type begins]To this question the German people first of all replied
by re-electing Reich President Von Hindenburg on 13 March 1932 and
finally, when even a man like Brüning no longer succeeded in forming a
capable government majority from the parties of the Reichstag, by the
Reichstag elections of 6 November 1932, from which the NSDAP emerged by
far the strongest party of the Reich. Almost one-half of the nation had
thereby uniformly expressed that it was tired of eternal party disunity,
that it longed for a strong leader who was to save the German people
from all its want, to tear it away from the abyss, and to lead it toward
a new future.[sm type ends]
[sm type begins]Since on the other hand, however, the Communists also
had achieved a great success in the elections and prepared for an open
battle for power, Hindenburg saw himself confronted by the choice of
either appointing Hitler Reich Chancellor as leader of the strongest
party or of proclaiming military dictatorship. The latter, however,
would have meant civil war. After a severe inner struggle, Hindenburg,
in accordance with the democratic basic principles to which he was
pledged, decided to appoint Hitler Reich Chancellor and thereby saved
the German people from a civil war.[sm type ends]
[sm type begins]Thus, and in no other way, did the seizure of power in
the German Reich through Hitler and the NSDAP take place. History in its
logical development was uncompromising as always. The reason for
Hitler’s appearance and his rise to power lies after all in the
Versailles Treaty, which put the German people into intolerable chains
which no people on earth could endure in the long run. It was the
tragedy of Germany and of all Europe that the victor powers of
Versailles refused to consider this, and instead of recognizing the
unnatural condition which had been established in Versailles with its
unavoidable results, proceeded to aggravate them more and more in the
course of the years. Let it be said here in all frankness that it is not
only the German people who bear the guilt for Hitler’s appearance but,
if in history one can refer to any guilt at all, to an equal extent the
effects of the Versailles Treaty. All nations on earth, as long as they
harbored a spark of the will to live and strength of life within
themselves, have always in days of the deepest need and dishonor
produced men who, chosen by history, have risen to be leaders out of
such misery by their very personality and by their ability to carry away
the masses. The great tragedy of the German people lies in the fact that
here was a man who did not spring from the authentic and genuine German
race, did not incorporate in himself the true character, the true
disposition of the German people, but was a stranger whose origin and
descent is still wrapped in mystery. But at that time, in those fateful
days, he must have appeared as the only one who could lead the German
people from chaos to a new life, and who through the circumstances and
the will of the people obtained the force and power to do so. The power
of attraction of Hitler on the masses was all the greater since behind
him stood the towering shape and nimbus of Reich President Von
Hindenburg, who had already almost become a myth. But it must be pointed
out with emphasis, in the interest of truth and for the honor of the
German people, that at the first new elections after the assumption of
power by Hitler the Party did not succeed in obtaining the absolute
majority in the Reichstag, rather that about half the electors still
followed the democratic spirit of their old parties, which proves how
deeply rooted the democratic idea already was in the German people.[sm
type ends]
[sm type begins]Hindenburg’s authority also backed up Hitler’s
governmental actions which now followed, which from his point of view
aimed logically and consistently at helping his state leadership to lend
the maximum vigor and strength to his fight against the forces of
decomposition still existing in the country, as well as in the struggle
for economic and political freedom. Without such strong and uniform
state stewardship this struggle was not feasible. This was proved by the
experiences of the postwar period. It was therefore not only a
consequence resulting from the personality of Hitler, even though he did
endeavor to collect for his state stewardship all the forces inherent in
the people for the approaching fight for their existence and then to
agree, with the consent of the President of the Reich through the
democratic Constitution of a freely elected Reichstag, to the so-called
Enabling Act of 23 March 1933, whereby he obtained the sanction of the
Cabinet to the so-called Conformity Act of 7 April 1933. Both laws
served Hitler’s ambition to enable the Government to enlist all the
necessary national strength in the coming fight for existence. The law
concerning the unity of State and Party, as well as the dissolution of
all other parties, served the same purpose. As a result of existing
conditions all this was due to the demands to eliminate all internal
disturbances and thereby give the Reich Government a free hand in its
fight against economic distress, and at the same time to regain for
Germany a fitting place in the council of nations. This demand explains
also the establishment of the Secret State Police to deal with the
combating and eliminating of underground Communist agitation.[sm type
ends]
[sm type begins]The majority of the German people, above all the youth,
lacked, besides any experience whatsoever, also the faculty to judge at
that time the future extent and possible development of these measures.
Above all it was the youth which in its distress rejoiced in Hitler as
the longed-for leader and followed him with blind confidence as the man
who was to deliver it from all unnatural shackles and all shame. Gerhart
Hauptmann, the well-known German poet and great authority on national
traits, who died recently, wrote a sentence in what is perhaps his
profoundest psychological book _Der Narr in Christo_ (_The Fool in
Christ_):[sm type ends]
[sm type begins]“Nature’s greatest social unifier is always a
common image of phantasy as is well known to those who wish to
establish an orderly unit out of a multitude of people. Such
state-building oppressors and dominating types make use of those
men who, endowed with a fanatical imagination, believe in,
further, and carry out their dreams, and thereby erect for the
masses a common shrine for which, for long periods of time, no
sacrifice is too costly.”[sm type ends]
[sm type begins]How much more must the truth of this quotation hold good
with a nation which, as I have attempted to show, throughout its entire
history has always been accustomed to be led, which practically never
directed its own fate, which for 15 years had again and again been
disappointed and had had to lose all hope that the other states would
come to its aid. All the more did it approve this strength of the state
leadership since it was tired of the constant party conflicts and,
undisturbed by further internal fights and upsets, only desired to
devote itself to the re-establishment of its economic existence. In its
blind confidence, it had as yet not recognized that through government
measures it could in future itself be placed in shackles, that it could
itself be deprived of the possibility of taking a stand against a state
leadership which was repugnant to its innermost feeling. At first
confidence in Hitler was still confirmed and strengthened by the
undeniable fact that Hitler succeeded in restarting the economy and
banishing the specter of unemployment, for in the short span of one year
Hitler had already succeeded in giving work and bread again to almost 2
million unemployed. And if these successes were partly made possible by
recommencing armament and other public works, he did not promote any of
the formerly somewhat belligerent desires and impulses of the German
people, but met only a craving for military spectacles which had been
present in the German people since olden times, together with a certain
inferiority complex. General Smuts recognized this absolutely correctly
in his speech before the Royal Institute of International Affairs on 12
November 1934, when he said:[sm type ends]
[sm type begins]“We are continuously told what is going on on
the opposite side of the Rhine, on the subject of the secret
armaments. It probably is nothing else but the consequence of an
inferiority complex. It is not real militarism, but these are
military stimulants for the masses. This wild behavior creates a
blessed feeling of satisfaction and relief in those who consider
themselves inferior or humiliated by their neighbors across the
Rhine.”[sm type ends]
[sm type begins]So the German people enjoyed the military rights offered
to them, not out of the belligerent impulses attributed to them by the
Prosecution or even from a wild desire for aggression dormant in them,
but simply because of joy in the spectacle and out of an instinctive
feeling which the founder of modern historical research has expressed as
follows:[sm type ends]
[sm type begins]“The national consciousness of a great people
demands a suitable position in the world. Conditions abroad do
not form an empire of convenience, but of essential power. The
respect of a state will always correspond to the development of
its interior powers, and each nation will resent not seeing
itself in the place befitting it.”[sm type ends]
[sm type begins]And now these people, who had languished under this
instinctive feeling of inferiority up to the seizure of power by Hitler,
saw how suddenly, as if by magic forces, one discriminating chain of the
Treaty of Versailles after the other dropped under Hitler’s leadership,
and how Germany was about to regain her place in the family of nations,
which she had had to forego for such a long time. Does it not actually
almost resemble a miracle how the foreign policy conducted by my client
succeeded in cleverly exploiting the foreign political constellations
and incidents which occurred in the period of the following years, and
how it succeeded by peaceful ways and means in removing, one after the
other, all the regulations of the Versailles Treaty which gagged Germany
in her foreign political position; the Western Powers who had up to that
time insisted upon exact compliance with the most unimportant
regulations of the Treaty of Versailles, now tolerated everything
quietly and could not rise above protests on paper. Is it not actually
almost grotesque that from 1933 on the same people who in former years
had retaliated against the slightest nonfulfillment of the obligations
of the reparations by a democratically governed Germany with military
means, like the occupation of the bridgeheads on the right side of the
Rhine and the occupation of the Ruhr area, suddenly reacted only by
meaningless protests to measures on the part of Germany which they
presumably considered violations of the most important treaties, like
armaments and the remilitarization of the Rhineland, and that they did
not even think of offering serious resistance? But did this not also
necessarily tend to increase Hitler’s national popularity, his respect
among the large masses, their readiness to follow him and their faith in
him, and to make the people blind toward the measures applied within the
country, which were gradually becoming more and more severe, toward the
gradual throttling of cultural, artistic, and intellectual liberty, the
free expression of opinion, and criticism, and toward the anti-Semitic
measures. Even the bloody incidents of 30 June 1934 were hardly able to
affect this attitude, and in some respects resulted in the contrary. For
after the extremely clever explanation which Hitler gave them, these
things could not but appear to the people as a purely internal affair of
the Party which served to purge the Party from impure elements, and were
not only bound to strengthen confidence in him, but also to remove any
doubts and misgivings about him and his authoritarian state leadership,
which had already arisen here and there. And the fact that the murder of
high-ranking generals did not arouse any reaction whatsoever in the
people actually only proves how little the attitude of the people was
militaristic. Although in this Trial the Prosecution reproaches the
entire German people with such emphatic indignation for not having
revolted and risen up unanimously against this restraint and
enslavement, the excesses and frightfulness of the concentration camps,
against the persecution of the Jews, the following must be made clear
with all emphasis: The gagging of cultural and intellectual liberty
primarily and chiefly affected the upper class intelligentsia, which
were relatively weak in number in relation to the entire population, and
it was therefore hardly felt by the total sum of the people, because on
the other hand Hitler took care to a very great extent to satisfy the
needs of the masses by popular and inexpensive, in many cases free,
theaters and movie performances and concerts, by the presentation of
public dramas, and by other arrangements. What consequences the gagging
of the intellectual upper class was bound to have, was not and could not
be readily realized by the great masses, because they were kept
completely busy with their work and the manifold other diversions.[sm
type ends]
[sm type begins]But with respect to the concentration camps and the
cruelties committed in them, I consider it my duty to state once and for
all, for the honor of the German people: It is not true that the great
majority of the German people, up to the last period of the war, had any
knowledge about what was going on in the concentration camps. An
assertion to the contrary can only be made by someone who has no idea of
the actual conditions in Germany, about the cunningly devised system of
keeping conditions in the concentration camps, and even the existence of
most of them, a secret. After all, how could it have been possible for
larger groups of the people to have learned about the conditions in the
camps? The Prosecution itself has tried to prove here that only a very
small percentage of concentration camp prisoners were set free again,
and those who were set free had to bind themselves in writing, under
threat of capital punishment, to keep absolutely silent about their
experiences during their imprisonment. They knew that if they violated
these obligations and the Gestapo became informed of the fact they would
forfeit their lives. I have myself been faced in my practice with a
number of liberated concentration camp prisoners, but I have not been
able to induce any one of them to speak and it was the same with many
others. And if one or other of them did tell anything, his audience was
careful not to repeat it, because they knew that they incurred
inevitable arrest and internment in a concentration camp if the Gestapo
should become informed of the fact. When in the course of the war
particulars concerning concentration camps slowly transpired, most
German cities were already under the hail of Allied bombs. It is
admittedly only too human that faced with the horror of daily air raids
the populace should have harbored no thoughts for the fate of
concentration camp internees, but rather for their own fate and that of
their kinsfolk, and for sheer life, for existence. And lastly, let me
ask you, Gentlemen, who should have revolted, who should have risen up
with violence against the domination of Hitler and the Party? Since the
outbreak of war, since the autumn of 1939, the flower of the male
population was under arms and fighting a hard battle at the front. A
revolution cannot be made by children, women, old people, and more or
less disabled or feeble men. And who was going to take the initiative,
who was going to lead it? No revolution has ever yet been carried out by
leaderless masses. Always and everywhere there must be leadership to
guide and lead the masses and manage them. A _levée en masse_,
especially when undertaken by an unarmed populace against an armed and
organized power, is as doomed to remain a hopeless issue in the internal
sphere as it is in war. The hopelessness of a popular rising or revolt
is clearly conveyed by the fact that the conspiracy of 20 July 1944
failed, long prepared as it was with every conceivable precautionary
measure, by real leaders enjoying wide popular support. The fact of this
conspiracy alone, however, proves one thing: that the French prosecutor,
M. De Menthon, is not right when, in his very brilliant and interesting
address on 11 January 1946, he represented the abhorred National
Socialist ideology and its glorification of race and German racial
superiority over every other nation on earth as the expression and
supreme product of the German mind and of its true nature, and names
Fichte and Hegel as heralds of this development: Fichte, one of the
greatest and noblest champions of Christianity, Christian ethics, and
morals, is worlds removed from this National Socialist ideology. And how
can anyone so much as name such an ideology in the same breath with
Hegel, whose philosophical system was perhaps the most idealistic of all
systems, who saw in the state the union of every moral force and
purpose, to whom the state appeared as the materialization of the notion
of morality in a manner reminiscent of the antique ideal, as something
divine on earth. And the French prosecutor forgets that it was the
German nation which produced a Kant, whose imperishable doctrine of the
categorical imperative, except for Christian ethics, is probably the
profoundest and most august expression of the moral principle of all
times. Arid he is mistaken when he brings Nietzsche, the unique thinker
who stands alone in the whole German spiritual universe, and his
longed-for superman, into any relation whatsoever to the ideology of the
National Socialist leaders. He also is worlds removed from them. No,
Gentlemen, these spiritual heroes of the German nation have nothing in
common with Nazi ideology. The latter stands, in truth, in the sharpest
contradiction to real, genuine German thought and sentiment, the real
character and dispositions of the German nation and, most of all, its
attitude toward the other nations of the world. For this nation has
never assumed itself to be better or more august than other nations.
Neither was it ever possessed by a desire to destroy other nations. It
is, above all, ignorant of hatred and revenge. The great tragedy of the
relations between the German and the French nations is precisely that
the latter has always refused to understand that the German nation has
not, like France from the war of 1870 to the World War, been possessed
by the thought of revenge, nor obsessed, even after Versailles, by the
reconquest of Alsace-Lorraine. The idea of Pan-Germanism, of the Greater
German Empire, has never, even in the period of greatest enthusiasm for
Hitler, stirred any echo in the German nation despite the undeniably
kindred example offered by the Pan-Slavic doctrine and its enthusiastic
reception by the Slav populations. And these very ideologies, preached
by the spiritual leaders of the Party, immediately determined and
fortified the opposition, first in the intellectual circles and classes
of the German nation and then in other classes and in the very ranks of
the Party, as a result of further constraints and limitations of
personal freedom. For those reasons the nation in its overwhelming
majority was by no means inflamed by the war initiated by Hitler in the
summer of 1939. What the nation’s frame of mind was like as early as the
autumn of 1938, I take the liberty of illustrating for you, Gentlemen,
by a minor personal experience on 25 or 26 September 1938.[sm type ends]
[sm type begins]I happened, on this day, to have my car held up in a
street leading to one of the large thoroughfares running south out of
Berlin, because the whole street was jammed with vehicles. When I asked
a common woman of the people, who happened to pass by, the reason for
the traffic jam, she answered, “They are going to war down there,” with
such an expression of abysmal despair and horror that I was chilled.
Such, was the attitude of the population toward war, an attitude
likewise evidenced by the fact that the departing troops were by no
means hailed and cheered by enthusiastic crowds, but were gazed at with
dull, frightened eyes. And if you ask me why the nation did not then
rise up and revolt, you will find the explanation in what I have said
before. As a nation accustomed to be led and to centuries of obedience,
the German nation followed once again the order of the leader which it
had raised to power. As a nation slowly but surely fettered by this
leadership, it had likewise no possibility of a spontaneous, unprepared
and unguided uprising against its leaders. Such a contingency could only
occur as the pressure of war became ever more stringent, and when
conscientious men in leading positions concurred in the attempt by slow
and determined work, in order to put an end to the folly of Nazi
domination and resulting war, and to save the German nation from an
otherwise certain catastrophe. Nevertheless, Providence denied success
to the attempt. But, I repeat, the very fact of the attempt, its support
by wide circles of the nation and even of the Party, definitely proves
that the Nazi ideology, which clearly governed politics since 1938, was
neither in keeping with the real character of the German people nor with
their nature, talents, soul, and mentality; neither was it engendered by
them, but rather it was foreign and naturally opposed to them.[sm type
ends]
[sm type begins]But there were not only the men connected with 20 July
1944 who had striven to do away with Hitler and the whole National
Socialist domination. There were other men who were determined to reach
the same goal, if by different methods, and had already taken the first
steps to that end. As you heard in witness Ströhlin’s testimony, the
Defendant Von Neurath was one of them. How could it have been otherwise
with this offspring of an old family which has given many a trustworthy
civil servant to its Württemberg home; whose whole life, inspired by the
spirit prevailing in his family home, has been filled with the most
ardent patriotism and devotion to his nation, whose entire aspirations
were directed toward the exclusive purpose of placing all his strength
and all his power, all his talents and capacities, at the service of his
nation’s welfare, and to subject and, indeed, sacrifice his personal
interests to it.[sm type ends]
[_A recess was taken._]
DR. VON LÜDINGHAUSEN: Born as a scion of an old family which gave its
small home state Württemberg so many loyal high government officials,
the Defendant Von Neurath grew up with a simple and strict education in
a parental home filled not only with a real Christian spirit and true
love for mankind, but also with an ardent, devoted love for his German
people and fatherland. From his tenderest age and during his entire life
his thoughts and actions had implanted in him the desire and will, the
holy duty, to place all his powers, all his ability, all his gifts and
capacities at the service of the welfare of his people, to subordinate
and even sacrifice all his personal interests to this. But, and this
must certainly be emphasized in this place, aside from this aspiration
there was alive in him and woven into his being in an equally strong
degree a deep religious feeling, love of the truth and love of mankind
that made him from the beginning adverse to the use of any form of
violence against his fellow men not only in his private life, in his
relations with his fellow men, but which ruled rather to the same extent
his entire official activity, even after the Treaty of Versailles. His
acts bore the stamp of this feeling and it became the law governing his
official dealings as a representative of the Reich in other countries,
as well as Foreign Minister and lastly as Reich Protector of Bohemia and
Moravia.
Not only by his conciliatory amiability, his skill and demeanor, so
understandable in a man of his origin and education, but also primarily
through the love of peace and sincerity which permeated all his actions
as a diplomat and statesman, he won the unlimited and sincere respect
and sympathy of all people with whom he came into contact the world
over, even of his political opponents. As unequivocal proof of this
fact, the truth of which, Your Honors, may be confirmed by your own
diplomats, it will suffice to refer to the fact that, as you know from
the sworn affidavit of my client, King George V and King Edward VIII of
England received the defendant in private audiences on the occasions of
his presence in London in 1933 and 1935; that the British Government in
the summer of 1937 and again in 1938, when he was no longer Foreign
Minister, invited him to visit England for political discussions, and
finally, that on his sixty-fifth birthday on 2 February 1938 the entire
diplomatic corps called on him to congratulate him and to express
through Monsignore Orsenigo, who at that time was doyen, its thanks and
its appreciation for the reasonable and understanding manner in which he
always discharged all his duties. Do you, Your Honors, credit your own
diplomats and statesmen with so little knowledge of human nature, so
little experience and knowledge of the world that in the course of the
defendant’s 6 years’ activity they would not have found out, if the
assertion of the Prosecution were true, that Herr Von Neurath had
knowingly let himself and his good reputation be used as a covering
shield by the Nazis, and that all his statements and assurances as
Foreign Minister were mere camouflage, that is to say, a deliberate
deceiving of the whole world?
In this connection, it may well be pointed out as quite obvious that
such old and experienced democracies as England, America, France, as
well as the Vatican, had delegated to the post of Ambassador in Berlin,
the most important post at that time, their cleverest and most
experienced diplomats. And I am tempted to assume that the Prosecution
possibly did not realize quite clearly what a dubious compliment they
paid to their own diplomats by their assertion about the defendant, when
they produce in proof of this assertion only the highly fantastic report
of the American Consul Messersmith. I am moreover unshakably convinced
that you, Your Honors, based on the very reason of your long judicial
experience, have far too much knowledge of human nature not to see at
first glance that my client, by his entire personality is absolutely
incapable of such a perfidious and untruthful way of acting, let alone
capable of play-acting to such an extent that for 6 long years he could
have fooled the ablest and most experienced diplomats in the whole
world. A man like the defendant, who for 60 years has led an honorable
and absolutely decent life, would never in the world at the end of such
a life have lent himself to such a disavowal and negation of all that he
had so far held highest. That would be contrary to personal experience.
And on the same level stands the Prosecution’s assertion that the
Defendant Von Neurath, by joining and remaining in Hitler’s Cabinet,
served as a fifth columnist in the conservative circles of Germany for
the express purpose of winning them over to National Socialism. This
slandering of the defendant which, moreover, was brought forward without
any attempt of proving it, is contradicted by the sworn statements of
all witnesses and the affidavits submitted, which unanimously state that
the resignation of the defendant from the office of Foreign Minister was
viewed in just these circles with the greatest dismay and concern,
because these circles considered that this withdrawal of the defendant
from the Government was in itself a sign that from then on his
pronounced peace policy would be replaced by another more belligerent
tendency in foreign policy, which was quite rightly considered as a
national calamity. For, like everybody else, they shared the conviction
of Reich President Von Hindenburg that Herr Von Neurath was the exponent
of the peaceful foreign policy of the Reich and the guarantor of a
consistent continuation of this peace policy against any possible,
undesired aggressive experiments by Hitler and the Nazi Party and that
for this reason the Reich President stipulated that the defendant should
remain in the Cabinet as Foreign Minister when Hitler was called to the
Reich Chancellery.
This fact is confirmed beyond doubt by the sworn statements of all the
witnesses heard, as well as by the carbon copy submitted by me of the
letter of the witness Dr. Koepke of 2 June 1932 to Ambassador Rümelin,
Neurath Document Book 1, Exhibit Number Neurath-8, and the affidavit of
Baroness Ritter, Neurath Document Book 1, Exhibit Number Neurath-3.
But the latter proves also at the same time how unwillingly and after
how long a struggle the defendant finally decided to accept this call
and, therefore, supports the defendant’s own sworn statement that he
only decided to do so after the Reich President, whom he so highly
venerated, appealed to his love for his country and reminded him of the
promise he had made 2 years before not to leave him in the lurch
whenever he, the Reich President, needed him.
There is certainly no need for further proof for the utter emptiness and
inaccuracy of the further assertion of the Prosecution, also submitted
without proof, that the defendant had used his position, his reputation,
his connections, and his influence to lift Hitler and the Nazi Party
into the saddle, and to help them to secure supreme power in the Reich.
Therefore, I hardly need to refer again to the statements of the
Defendant Göring and other witnesses, particularly Dr. Koepke, from
which it appears beyond doubt that at that time there were absolutely no
relations between Hitler and the Nazis and the defendant, and,
therefore, even less could the defendant have taken any part in the
negotiations which took place before Hitler’s call to the
chancellorship.
Love for his country, a strong sense of responsibility, deepest concern
about the weal and woe of his people and his promise not to leave Reich
President Von Hindenburg in the lurch in this time of need, these were
the only reasons which moved this man to leave the post of Ambassador in
London he had come to like so much, to assume the office of Foreign
Minister of the Reich at that critical and fateful hour, and to accept
the task assigned him by the President of the Reich to continue to guide
the foreign policy of the Reich in a peaceful manner, even perhaps
against the will of Hitler.
The Defendant Von Neurath can claim rightly that he carried out this
grave task at all times with all his strength and with the full
allegiance of his personality, even after the death of Reich President
Von Hindenburg, up to the time he was forced to admit that this task was
beyond his strength, that Hitler no longer let himself be influenced by
him but had decided to pursue a line of foreign policy along which the
defendant, owing to his inmost convictions and his personal point of
view, could not follow.
Up to 5 November 1937, the date of the famous speech of Hitler to the
commanders of the various branches of the Armed Forces, the Defendant
Von Neurath remained at his post, in the most faithful performance of
his promise to the Reich President Von Hindenburg, even after the death
of the latter. By reason of this loyalty to the deceased Reich
President, he endured the odium, in many cases concerning Hitler’s
domestic politics, of having been compelled as a member of the Reich
Cabinet to allow in silence things to happen which were contrary to his
own convictions, which did not agree with his views and even were in
direct contradiction to them. It was not in his power to prevent them.
So he was forced to be satisfied with trying as far as possible to
mitigate their effects and consequences, as you could see from the
affidavit of the Bishop Dr. Wurm, Neurath Document Book 1, Number 1, and
the statements of the other witnesses heard in this connection.
The reproach of the Prosecution that he did not make such cases an
excuse to lay down his office of minister, but that by remaining in
office he had consciously approved and abetted them, is entirely
irrelevant. The first law governing his actions was the carrying out of
the duty assigned him by President Von Hindenburg, to secure the
continuance of the Reich’s peaceful foreign policy. He would have broken
his word had he resigned his post as Foreign Minister before this was
accomplished or before there was no possibility of its accomplishment.
What person thinking objectively could bring himself to reproach him
regarding this, or even identify him with the Nazis, as does the
Prosecution?
But this attitude of the defendant, however, is the only reason why he
did not refuse, as did Minister Von Eltz-Rübenach, his nomination to the
rank of honorary Gruppenführer of the SS in September 1937 and the
presentation by Hitler of the Golden Party Badge at the cabinet session
of 30 January 1937, which facts are made a reproach by the Prosecution
and a proof of his alleged National Socialist sentiments. For as the
statement of the Defendant Göring indicates, such a refusal by the
Defendant Von Neurath, as was the case with Von Eltz-Rübenach, would
have been resented by Hitler as an act of rudeness which would without
any hesitation have been answered by the immediate dismissal of the
defendant. But this was just what the defendant wished to avoid, for at
that time he was still in a position to carry out to the full extent the
task assigned him by the President of the Reich—to be the guarantor of
peace in the foreign policy of the Reich, because he was fully justified
in his conviction that his influence over Hitler was still strong enough
to insure his agreement with the peace policy he was then fostering.
The evidence submitted proves beyond doubt that in both cases it was not
a question of actual membership of the SS and the Party, but only a
matter of uniform, an external whim of Hitler in regard to the men of
his retinue during Mussolini’s impending visit; and secondly, it was a
matter of a visible recognition for the services rendered by the
defendant as Foreign Minister, which at the same time implied a proof of
the unlimited agreement of Hitler with the peaceful foreign policy
followed by the defendant—in other words, an entirely normal awarding
of decorations as is practiced in every state. The conferring of
decorations in the ordinary sense was not yet possible because at that
time they did not yet exist in the Third Reich. That the defendant in
both cases nevertheless expressed at once that under no circumstances
did he wish to proclaim his entry or admission into the SS or the Party
by accepting this decoration, intended by Hitler as a mark of honor, has
been proved by his affidavit. Moreover, he never took the oath required
of a member of the SS; he never exercised even the slightest activity in
the SS and wore the SS uniform only twice in his life at Hitler’s
explicit request. This has also been confirmed by his affidavit.
Both cases actually concerned a personal sacrifice of the defendant to
the promise he had given Hindenburg. If the Prosecution consequently
believe it must infer from these two incidents a National Socialist
conviction from the defendant’s agreement with Hitler’s ideas and his
entire governmental system, it has altogether missed the mark. And the
conferring of the Order of the Eagle supports the Prosecution’s
assertion even less. For this Order was not conferred on him nor on the
Defendant Ribbentrop as a personal distinction for services rendered,
but it was merely conferred on them in their positions as Reich Minister
for Foreign Affairs and Reich Protector as such. This was done in order
to give this Order, which was intended to be conferred on foreign
personalities only, a special significance in the eyes of people abroad,
which is even shown by the fact that it had to be returned by the
defendant when he resigned.
The presentation of evidence, through the affidavits of all the
witnesses examined in this connection, unequivocally resulted in the
fact that the defendant’s attitude toward the National Socialist system
and its maxims were negative from the beginning to the end, and that,
therefore, certain Party circles continually bore him ill will and
opposed him. For these circles knew quite well that the Defendant Von
Neurath, as is proved by his own statement and by those of the witnesses
Dr. Koepke and Dr. Dieckhoff, energetically and successfully opposed to
the last day all attempts to introduce members of the Party as officials
into the Ministry of Foreign Affairs, and in so doing, open it to Nazi
influences; and that in spite of various intrigues he could not be
dissuaded from his definite peace policy. On account of his inviolable
sense of responsibility and his patriotism, the defendant also took upon
himself this enmity and these intrigues, endeavoring only to conduct
German foreign policy along those lines, which were prompted by his
convictions, formed by long years of successful diplomatic activity. He
was fully convinced that when he resigned his office it meant the
collapse of the last bulwark against the infiltration of members of the
Party and of the Nazi spirit into the Reich Ministry of Foreign Affairs.
It also meant that the danger of renouncing the peace policy embodied in
his policies was imminent, which indeed came true on his resignation on
4 February 1938.
It was therefore for the defendant the bitterest disillusionment in his
official life when he was forced to recognize in Hitler’s speech on the
ominous day of 5 November 1937 that all his efforts, his entire
struggle, all his personal sacrifices during the last 5 years appeared
to be in vain and that his influence with Hitler was broken, that the
latter had decided to abandon him and the policy of peace and agreement
advocated by him, and, if the occasion arose, to make use of military
means in order to carry out his more than Utopian plans set forth in
this speech. The recognition struck him like a bolt from the blue, since
up to then nothing had intimated that Hitler might no longer agree on
the peace policy advocated by the defendant. The heart attack which he
had the next day may testify to the fact how seriously he felt this
blow, which seemed to shatter all his hopes, all his efforts to protect
German y from the dangers of this foreign policy, from military
entanglements, and a possible, nay probable, catastrophe.
But in consciousness of his responsibility, his burning concern
regarding the future of his people, before drawing the last self-evident
conclusions and resigning, he considered it his duty to try once again
by a very detailed and serious conversation to dissuade Hitler from
persevering in his fatal plans and intentions. Yet, having to recognize
from this conversation that Hitler’s decisions were unalterable, he did
not hesitate for one instant to tell Hitler that he had decided under no
circumstances to take part in this pernicious policy, and that for such
a foreign policy Hitler must find another foreign minister. Hitler
accepted his resignation by his letter of 4 February 1938.
I ask you, Gentlemen, is there a more unequivocal and clearer proof than
this resignation to show the absolute inaccuracy, the entire hollowness
of the charges made against my client at this Trial of having assisted
or having wished to assist by his foreign policy in the planning and the
preparation of wars of aggression which took place one and a half years
later? Is there a more unequivocal and clearer proof of the absurdity of
the application of the principles of conspiracy to the acts and deeds of
statesmen and, in particular, of the defendant? Finally, is there a more
unequivocal and clearer proof of the absurdity of a retrospective
judgment of the policy of states, constituting as they do here one of
the main bases of the whole prosecution?
All of you, Gentlemen, who are here to do justice, know from your own
activity and experience at least as well as I do, how dangerous
conclusions a posteriori are regarding the actions of a man, regarding
the thoughts, views, and deeds of this man, several years removed in
time. _Tempora mutantur et nos in illis._ Each of us has surely
experienced the truth of this sentence more than once in his life.
Convictions and views, intentions and resolutions, which we have held
and carried out at a certain time, have in the course of years become
changed and altered, partly because of the transformation of one’s own
personality, partly because of exterior circumstances, or change of
conditions. Does one really wish to expound this thesis and draw a
conclusion retrospectively, that the former views, assertions, and
actions were only camouflage, and that the person already intended to do
and was determined to do what he did years later under quite different
circumstances? Why should you demand a different standard of a
politician, a statesman? He, too, is only a human being and is subject
to the same changes of ideas, opinions, and intentions as others. He is
even more acutely subject to exterior influences, exterior conditions,
to certain imponderable circumstances than the ordinary man. Just one
example for this: What would you say to a man who would dare to assert
in earnest that Napoleon Bonaparte, when he went to Paris during the
great revolution, or later on when taking over the supreme command of
the French armies in northern Italy, already had the plan or even the
intention of making himself in 1804 Emperor of the French and of
marching on Moscow in 1812? I believe that whoever adopted this attitude
would stand alone in the world. And an able dialectician with more or
less apparent logic and justice could still base this opinion on the
historical development of events, like the Prosecution with regard to
their opinion that Hitler, at the time of his assumption of power, yes,
already with the presentation of the Party program in 1920, had not only
the intention but even the plan ready for conducting his later wars of
aggression, and everything which Hitler and the Nazis or his
collaborators did, from the very moment of the assumption of power, both
in domestic and foreign politics, was the conscious preparation for
those wars of aggression.
Your Honors, I believe whoever follows the Prosecution and their
principle, which still stands on a very weak basis, and their
retrospective consideration of things, overrates too highly the
spiritual and statesmanlike abilities, not only of his satellites but
also of Hitler himself. Because, after all, it is in any case already
evidence of a certain mental limitation if a person, and particularly a
statesman, founded his policy on the basis, as Hitler indisputably did,
that the governments and statesmen of the remaining states would again
and again let themselves be fooled and bluffed by the same methods, that
they would again and again stand for actions which they considered to be
violations of treaties, and that they would watch quietly until Hitler
believed himself to be ready to attack the whole world by force of arms.
And is it not all the more proof of a mental limitation if a statesman
in this way underestimates the abilities, astuteness, and the weapons of
his opponents as Hitler did? In addition to all this, however, there is
something which must not be underestimated either; that is Hitler’s
desultory way of thinking and the thought processes resulting in snap
decisions. I do not consider it necessary to have to give you any
further evidence of these, as they are generally well known. Hitler,
however, was also a man who did not stand for any argument or any
resistance, and who on encountering obstacles which he could not remove
by an emphatic word, forthwith changed his plans and intentions and made
contrary decisions, the very opposite of those he had formerly
cherished.
All this speaks against the intention of planning and preparing wars at
the time of the seizure of power, or even in previous years, which the
Prosecution have ascribed to Hitler. The impossibility of this charge is
further apparent, if one considers the following: It is indisputable
that Hitler not only testified his love for peace in public speeches,
addresses, and diplomatic notes on several occasions from the day of the
seizure of power until 1937, as can be seen from documents presented by
me, but he also made positive suggestions for the practical limitation
of armament of all states, including therefore Germany, from which it
can be readily seen that he declared himself satisfied with a reduced
land and air power in proportion to the others, which from the very
beginning excluded any aggressive war against the other states. And now
just suppose that one of these offers of Hitler had been accepted by the
remaining states, then the war of aggression which Hitler supposedly had
been planning and preparing for years would never have been possible.
All efforts, work, and expenses in connection with it would have been in
vain. Or do you perhaps consider it possible that Hitler looked ahead
and figured that his offers would be refused, and that he only made them
in this realization? Then he would really be an almost demoniacal
genius, a prophetic seer of the first rank. Do you really wish to assume
from it the claim of the Prosecution that aggressive war of the year
1939 had been planned a long time before the seizure of power? And even
if you should answer this question in the affirmative for the person of
Hitler, do you also ascribe such a gift of second sight to his
collaborators, his servants, yes, even all Party members? To ask this
question is to answer it in the negative. With this question alone also
falls the painfully constructed and artificial structure of the
motivation ascribed by the Prosecution. And along with it falls also the
classification of the whole charge, and in particular the
coresponsibility of all collaborators of Hitler generally under the
conception of conspiracy, at least until the period of time when it
could be recognized by the most extensive circles of his followers that
Hitler finally wanted war and had decided on it. Simultaneously with
this, however, the unconditional accuracy of the postulate advanced by
me at the beginning of my statements becomes evident after examining the
subjective joint guilt of every single defendant, after the denial of
the coresponsibility of each individual only from the fact of his
participation in the actions which are considered as preparations for a
war of aggression by the Prosecution at any period of time, simply
without examination and investigation of his knowledge of Hitler’s aims
and intentions. To disregard this postulate, as the Prosecution do,
would be to contradict every sense of justice, the most primitive as
well as the most highly developed, in every nation on earth. The _summum
jus_ sought in this Trial would become a _summa injuria_.
The best evidence of the truth of this assertion is personified by the
Defendant Von Neurath himself. Is it not pure folly, is it not _summa
injuria_ to accuse this man of connivance in planning and preparing wars
of aggression, this man who deemed it his exclusive duty, a duty to
which he has made great personal sacrifice, to prevent every form of
entanglement involving war—and who, the moment he realized that the
task was beyond him, forthwith resigned his function and demanded his
dismissal? The Prosecution obviously feel this themselves, otherwise
they would not have brought as evidence of the defendant’s alleged joint
culpability his presence at Hitler’s conference on 5 November 1937,
wittingly omitting, however, that it was this conference and Hitler’s
deviation from a peace to a war policy which caused the defendant to
refuse further collaboration and thereby make it clear that he never
concurred in the past and was not prepared in the future to concur in or
approve of, the planning, preparation or waging of a war of aggression.
Thus, every charge of guilt made in the Indictment against the Defendant
Von Neurath is void, once and for all. For should he be further accused
of having broken international treaties while responsible for the
conduct of German foreign policy, it must be pointed out in answer that
according to the clear wording of the Charter, the breach of
international treaties does not constitute a punishable crime in itself,
and becomes a punishable crime only when it serves the purpose of
preparation for wars of aggression. If such a breach of treaty serves
this purpose, it must be intended to do so by its author, or at least
its author must be conscious of the fact. That Defendant Von Neurath had
no such intention, nor indeed the faintest knowledge of the above
implication, is quite clearly proved by his resignation from the office
of Foreign Minister. But I shall moreover demonstrate to you that even
the charge of violating or breaking international treaties is without
foundation.
When, on 2 June 1932, the Defendant Von Neurath took over the Foreign
Office at Hindenburg’s request, there were two questions that far
surpassed in importance every other European problem and demanded an
urgent solution; they were the problem of the German reparations and the
problem of the disarmament of the victorious powers and of German
equality of rights, a factor which was inseparable from it.
The defendant and Von Papen who was Reich Chancellor at the time managed
to treat the first question satisfactorily at the conference held by the
powers in Lausanne on 10 June 1932, a few days after the defendant’s
assumption of office. At the closing session of the conference on 9 July
1932, Germany was freed of the financial servitude established by the
Treaty of Versailles of a single final payment of 3 milliard marks. The
Young Plan was obsolete, and only Germany’s obligations deriving from
the loans granted her remained in force. Thus Part VIII of the Treaty of
Versailles in which the reparation obligations were contained by virtue
of Article 232 became obsolete for Germany. The first gap was made.
Matters were different with regard to the disarmament problem. This
arose from the obligation for disarmament imposed on Germany according
to Part V of the Treaty of Versailles which, I presume, is well known.
In case of its fulfillment, the preamble to this part likewise
prescribed disarmament for the highly armed victorious nations in
reciprocity. Germany had disarmed. It had already fully met its
obligations in 1927, an uncontested fact which the League of Nations
also had expressly recognized. This was the basis for Germany’s request
for reciprocal compliance by the other partners to the treaty, as
provided for in the preamble to Part V. And Germany had announced its
request for disarmament by the highly armed states and in conjunction
therewith recognition of her equality of rights a considerable time
before the defendant took office. However, during the so-called
Disarmament Conference the negotiations not only had made no progress by
the time the defendant took over the Foreign Office, but just at that
time, the summer of 1932, they had become considerably more difficult.
In view of the short time allotted for my disposal, I again refer for
details to the German memorandum of 29 August 1932—my Document Book 2,
Exhibit Number Neurath-40—and to my client’s interview of 6 September
1932 with a representative of the Wolff telegraph office, to be found in
the same document book under Exhibit Number Neurath-41. Lastly, I should
like to refer to the defendant’s declaration of 30 September 1932 before
the German press, submitted to the Tribunal under Exhibit Number
Neurath-45, my Document Book 2.
These declarations, all of which were made preparatory to the resumption
of negotiations by the Disarmament Conference on 16 October 1932 and in
order to demonstrate the seriousness of the situation to the world and
to the Western Powers, prove clearly and unequivocally the great,
fundamental tendency of the defendant’s ideas, his trend of thought and
intentions as a human being, as a diplomat and as Foreign Minister,
which dominated his entire policy from the beginning until his
resignation, and which can be summarized in the statement: To avoid and
prevent the settling of differences through force of arms; to realize
all goals and tasks of German foreign policy by peaceful means only; to
reject war as a means of policy; in a word, to strengthen and safeguard
peace among the nations.
It is the same tendency which M. François Poncet, the former French
Ambassador to Berlin, so eloquently referred to as a characteristic of
the defendant in his letter—which I submitted to the Tribunal as Number
157 of my Document Book 5—and which was unanimously confirmed by all
witnesses and affidavits.
While the opening of negotiations at the Disarmament Conference started
with what really might be termed an affront to Germany, which caused the
head of the German delegation to declare that under such conditions it
would not be possible for him to continue to attend the negotiations,
the Western Powers in the end could not close their minds to the ethics
of a policy inspired by such tendencies, and following a suggestion by
the British Government, on 11 December 1932, the well-known Five Power
Agreement was concluded (see my Document Book 2, Exhibit Number
Neurath-47a) in which England, France, and Italy, with the consent of
the United States of America, recognized Germany’s equality of rights.
On 14 December 1932, the main committee of the Disarmament Conference
expressed its satisfaction in acknowledging this agreement, and the
German delegate expressed his readiness to resume participation in the
deliberations of the conference, stressing also that the equality
recognized on 11 December 1932 in regard to Germany was the _conditio
sine qua non_ for this continued participation by Germany. It seemed
that a great step forward had thus been made in the path leading to an
understanding on the question of disarmament.
However, things were to take a different turn. Immediately following the
opening of the conference meeting again in Geneva on 2 February 1933,
serious clashes occurred between the German and the French delegations,
in the course of which M. Paul Boncour, the French delegate, even went
so far as to declare the Five Power Agreement of 11 December 1932
legally invalid because it involved five powers only. To the
astonishment not only of Germany, the cause for these increasingly acute
differences was the fundamental change in France’s attitude with regard
to the basic question of the entire armaments problem laid down in the
French plan of 14 November 1932 as a basis for these negotiations. For,
contrary to the stipulations of the Treaty of Versailles and its own
attitude heretofore, France suddenly took the position in this plan that
armies composed of professional soldiers with a long period of service
were aggressive in character and consequently meant a threat to peace
and that only armies with a short period of service were defensive in
character.
I regret that for lack of time I must desist not only from referring at
greater length to the details of the French plan, but also to the
sequence of the differences which became more and more critical between
Germany and the other powers. I must assume that they are known and
confine myself to stressing that the new French thesis, which the
Disarmament Conference adopted as its own, was clearly and unequivocally
directed against Germany and the Reichswehr as it had come into being in
accordance with the disarmament stipulations of the Treaty of
Versailles, a thesis which, if it was to be carried into effect, would
have required the transformation of the Reichswehr into a militia army
with a short period of service, thus signifying a still further
reduction in its armament, inadequate as it already was for an effective
protection against attack. The establishment of this thesis, however,
also proved clearly that France was unwilling to disarm, which was also
shown by statements of the French representative himself.
This new plan of France, as also her attitude particularly in the
question of the ratio in the reduction of the individual armies, was
merely a new expression of her old thesis, first security, then
disarmament, which brought about the failure not only of the previous
negotiations but also that of a new plan of mediation, the so-called
MacDonald Plan, proposed by England to prevent the threatening
break-down of negotiations.
Germany’s reference to consideration for her own security and her demand
for general disarmament as a result of the right to equality by reason
of recognition accorded her on 11 December 1932 were received by the
other parties as a provocation, indication being given that, should
negotiations fail, responsibility would rest with her.
In the interest of the clarification of these things and of the
presentation of the increasing gravity of the whole situation before
world publicity, my client felt it necessary to publish an article in
the well-known Geneva periodical _Völkerbund_, on 11 May 1933—Neurath
Document Book 2, Number 51—in which he discussed the result which the
conference had so far achieved, described the German attitude in detail,
and finally established that the German demand for the practical
realization of the equality of rights of Germany by disarmament of the
heavily armed countries was wrecked by the lack of will of those
countries to disarm, and that Germany, therefore, in the interest of her
own security was forced to start completing her armament, should the
general limitation and disarmament within the framework of the English
MacDonald Plan not satisfy her justified demands for security.
This conclusion was wholly justified in view of the entire foreign
political situation at that time. These aggravated events which had
intensified the crisis at the Disarmament Conference were only a small
part, so to speak, of the expression of the international tension which
prevailed since Hitler’s assumption of power. Domestic events occurring
in Germany were first observed abroad with astonishment, but also with a
certain lack of comprehension.
Soon after Hitler had assumed power, on 30 January 1933, an opinion was
formed abroad—the discussion of which would lead too far here—about
the so-called German revolution, which made it appear a European danger
not only to France and her allies but also to Great Britain as well. The
fear of such a danger affected the attitude of the Western Powers at the
Disarmament Conference to an ever increasing degree, where Germany’s
completely logical and consistent point of view was regarded as a
provocation. But these worries of theirs, their insecurity in the face
of the new Germany, led to even much more extensive measures and
threats.
With England’s consent France began military preparations in the first
days of May 1933, placing the border fortifications—which had already
been provided with increased garrisons during the winter—in a state of
alarm by alerting the large camps in Lorraine, the deployment area of
her army of the Rhine, and carrying out a large trial mobilization
between Belfort, Mulhouse, and St. Louis, at which the Chief of the
French General Staff, General Weygand, appeared in person. And at the
same time the French Foreign Minister Paul Boncour ostentatiously
declared in his speech on 12 May 1933 before the French Senate that, in
view of the revolutionary explosions in Germany, Italy would have to be
kept firmly among the group of Western Powers; and, in response to
Germany’s attitude at the Disarmament Conference, he added that Germany
must adhere strictly to the Treaty of Versailles if she wanted to keep
the Reichswehr. And these words of the French Minister, which could only
be understood as a threat, were still further emphasized and confirmed
by similar statements of the British Minister of War, Hailsham, and the
otherwise so pacifist-minded Lord Cecil, in the English House of
Commons; the latter even encouraged France to carry out further military
operations. The situation was so strained that Europe seemed to be
standing directly on the brink of a new war.
This increasing gravity of the situation, this obvious crisis which was
leading Europe close to disaster is one of the basic reasons for the
entire subsequent policy of the Defendant Von Neurath during the
following years. Therefore, the question must be examined as briefly as
possible, to see what consequences it was bound to have and did have,
for German foreign policy, from the German point of view. One thing is
undeniably clear. In the spring of 1933 Germany was in no condition
whatsoever to fight a war; it would have been complete madness, a sheer
desire for self-destruction, to fight a war against the armies of France
and her allies, which counted millions of men and were excellently
equipped with the latest weapons of attack, to fight with the small
Reichswehr of one hundred thousand men which had at its disposal no
motorized weapons of attack whatsoever, no tanks, no heavy artillery, no
military airplanes.
Fear of an imminent warlike attack on the part of Germany could,
therefore, from the point of view of the Western Powers, under no
circumstances be the reason for their position and attitude. The one
plausible reason could lie only in the attitude of the Western Powers
with regard to the question of disarmament as such, that is, in their
unwillingness to carry it out, to continue to discriminate against
Germany, to continue to refuse her the realization of her equality of
rights and to continue to keep her down.
In this alone, in the eyes of the leader of German foreign policy, lay
the reason for the final French and English proposals at the Disarmament
Conference, which were unacceptable to Germany for reasons of justice as
well as for reasons of her own security and her national honor. Because
even in spite of Germany’s equality recognized by the Western Powers in
the Five Power Declaration, the French plan of 14 November 1932, as well
as also the English plan of 16 March 1933, the MacDonald Plan, and the
resolutions of the Disarmament Conference included therein, lacked
practical realization of equality, even from the most objective
standpoint.
What justly and objectively thinking person would reproach the German
state leadership, if they drew their conclusions from all this, and
recognized that this behavior of the Western Powers contained not only a
violation of existing treaties and of the Treaty of Versailles with
regard to disarmament, but also the will of the Western Powers to
prevent Germany from fulfilling her demands justified by treaty, by
force of arms if necessary, and furthermore to keep her as a second-rate
state, and to refuse her the security guaranteed her also in the Treaty
of Versailles?
Can you, Your Honors, reproach a state leadership which was aware of its
responsibility towards its people, if this realization from now on had
to be decisive for the continued direction of foreign policy? Because
the highest duty of every state leadership, which is aware of its
responsibility in foreign policy, is the securing and maintenance of the
existence and the independence of its state, the regaining of a
respected and free position in the council of nations. A statesman who
neglects this duty sins against his own people. This realization should
carry all the more weight because, on the part of Germany, nothing had
happened which might have been interpreted as a threat against the
Western Powers. On the contrary in his first program speech in a
Reichstag still elected in accordance with democratic principles, Hitler
had emphatically declared on 23 March 1933, punctuated by unanimous
applause, his will for peace, particularly emphasizing this with regard
to France; and he confessed himself prepared for peaceful collaboration
with the other nations of the earth, but emphasized also that as a
prerequisite for this he considered necessary the final removal of the
discrimination against Germany, the division of the nations into victors
and vanquished.
To these declarations of his, however, not the slightest attention was
paid by the Western Powers, although they corresponded throughout with
the given conditions and might have contained anything but certainly no
threat. Unfortunately, they were unable to effect a change in the
attitude of the Western Powers and to prevent an acceleration of the
crisis.
A discernible relaxation only took place when Hitler, under the
influence of the Defendant Von Neurath, at the climax of the crisis,
repeated once more to the world, with the greatest emphasis, his and the
German people’s will for peace in his great so-called peace address
before the Reichstag on 17 May 1933—it is in excerpt form in my
Document Book 2, Exhibit Number Neurath-52—and expressed his conviction
that, as he declared literally, no new European war would be in the
position to replace the unsatisfactory conditions of today by something
better; the outbreak of such an insanity, as he described the war, would
be bound to lead to the collapse of the present social and state order.
This speech of Hitler, whose honesty and sincerity cannot be denied
according to the evidence, and whose power of conviction also proved
irresistible to the Western Powers, effected a general relaxation of the
situation; the danger of a new international war was averted, and the
world took a deep breath. This, however, also marked the end of the
isolation of Germany which had made for inner change and revolution, and
German foreign policy gladly and with a sincere will took the
opportunity for active collaboration in the political state gamble, an
opportunity offered her by the suggestion of Mussolini to unite the
great powers, England, France, Italy, and Germany, in a so-called Four
Power Pact. This treaty, which was drawn up on 8 June 1933 in Rome and
which was signed in the middle of June 1933 also by Germany, and which
in its preamble also referred expressly to the Five Power Agreement of
11 December 1932, was to place the participating powers in such a
position that, if further negotiations in a larger circle, as for
example in the Disarmament Conference, should reach a stalemate they
could meet at a smaller conference table. For Germany, the main motive
lay in the fact that she again became an active member in the body of
European policy in which she was participating as a partner with equal
rights in an international agreement.
As a matter of fact, this pact was concluded at a time when a new
international tension was already arising and increasing which again
threatened to isolate Germany. This time it had its source not so much
in the Disarmament Conference, the proceedings of which after the
customary fruitless endeavors were again suspended on 29 June 1933 until
16 October 1933, as in the position of Germany and Austria in the World
Economic Conference which opened in London on 12 June 1933. The Austrian
Prime Minister Dollfuss made use of this conference to call the
attention of the powers to an alleged threat to Austria’s independence
by Germany, in that he accused Germany of lending support to the
Austrian National Socialists in their fight against his Government.
Making the Austrian question the center of gravity for European policy
and calling on the powers for protection against an alleged threat to
Austria’s independence by Germany—which the former considered a
cornerstone in the construction of European power relations—he fanned
the old embers into a new flame. What the mood was then in the summer of
1933 is shown in my Document Book 1, under Exhibits Number Neurath-11
and 12, reports of the defendant to Reich President Von Hindenburg and
Hitler, dated 19 June 1933; but reference is also made to it in the
speech by the defendant on 15 September 1933—Document Book 2, Exhibit
Number Neurath-56—before representatives of the foreign press, which
also comments on the consequences of such an attitude for the prospects
of the proposed negotiations to be resumed by the Disarmament Conference
on 16 October 1933, and which is reflected in his words:
“Judging by certain indications the readiness of highly armed
states to carry out disarmament obligations for which they
pledged themselves today seems to be smaller than ever. Finally,
there is only one alternative: Realization of the right to
equality or else a collapse of the entire idea of disarmament,
with incalculable consequences, for which responsibility would
not rest on Germany.”
This skepticism of the defendant with regard to the political situation
in general, and prospects of the Disarmament Conference in particular,
were only too well founded. For the new so-called Simon Plan—submitted
even before the conference started by Sir John Simon, head of the
English delegation, as a basis for negotiations—and to no less a degree
the statement relative thereto made by Sir John, made it clear beyond
doubt that the attitude of the Western Powers still continued to be the
same as in the spring of 1933 and that they were even still less
disposed to do justice to Germany’s demand for an equality of rights.
For Sir John declared in plain language that in view of the present
nonclarified conditions in Europe, and considering the seriously shaken
confidence in peace, a disarmament conference, even according to the
pattern of the MacDonald Plan, which Germany had declared unacceptable
in the spring, was an impossibility.
This not only meant bringing an unjustified accusation against
Germany—which had done no more than stand on the rights accorded it by
treaty—but it also was a clear denial of Germany’s equality of rights
and of disarmament. As a matter of fact, this Simon Plan falls even
farther short than previous plans in doing justice to Germany’s rightful
demand for equality of right and disarmament, that is, a balancing of
all states’ armament in accordance with one another, including Germany.
Time being too short, I once more have to refrain here from going into
detail and must confine myself to pointing out that it meant an
increased restriction and reduction of German armament in favor of the
other nations. For it provided that during the first half of the 8
years’ duration of the proposed disarmament, Germany alone—through the
conversion of its Reichswehr into an army with a brief period of
service—would practically be still further disarmed, subjecting
herself, in addition, to an armament control by the powers, while the
highly armed powers were not scheduled to begin disarming until the
fifth year, and then only in terms of manpower reserve, not in terms of
arms. These provisions demonstrated more clearly than ever that not only
did the Western Powers not intend to disarm, but that they wanted to
weaken Germany still more and make her tractable to their power
interests. There was no more mention made of the fact that the Five
Power Agreement of 11 December 1932 had agreed to recognize Germany’s
equality of rights.
It really should have been clear to the Western Powers as well that such
a plan depriving her of a chance to participate in further negotiations
at the conference was bound to be unacceptable to Germany from the
outset. However, on the strength of the lessons which German foreign
policy learned in the spring of 1933—when Germany came very near having
the Western Powers threaten her with war because she was unwilling to
renounce her just demands—nothing was left to her this time but to
answer the new threat which this plan undoubtedly involved, not only by
rejecting the plan but also by withdrawing from the Disarmament
Conference as well as the League of Nations. Further negotiations during
the conference under such conditions were deemed hopeless from the very
start and could only result in a still greater heightening of contrasts.
It is difficult to understand why the Western Powers failed to foresee
Germany’s attitude and were surprised by her withdrawal from the League
of Nations and the Disarmament Conference. In Hitler’s speech, already
referred to here, an appeal for peace, delivered on 17 May 1933, he
expressed in unequivocal terms that notwithstanding the sincere will for
peace and further disarmament—provided it were mutual—on the part of
the German Government and the German people, they would never consent to
further humiliation and to renunciation of their claim for equality of
rights but that if such were the demand they would rather assume the
consequences without hesitation. Still more incomprehensible is the fact
that in all earnestness the Prosecution place the blame for this
withdrawal by Germany on its foreign policy, and that they believe they
can find evidence of deliberate action for the preparation of wars of
aggression; and this can only be understood by the fact that the
Prosecution preserves complete silence on the events which led up to
this withdrawal and thereby tries to create the impression that
Germany’s withdrawal occurred entirely without cause. The Prosecution’s
interpretation of the withdrawal as an action in preparation for war is
contrary to objective history as becomes clearly apparent from the
fact—which the Prosecution also passed over in silence—that concurrent
with its declaration of withdrawal, the German Government, through
Hitler’s speech of 14 October 1933 as well as also through the speech of
the Defendant Von Neurath of 16 October 1933, not only declared with all
possible emphasis their unchanging desire for peace and readiness to
negotiate in the case of any disarmament plan which would consider
Germany’s equality of rights, but tried to carry into practice this
willingness to negotiate by submitting on her part practical proposals
for general disarmament, as set forth in the memorandum prepared by my
client and submitted to the powers on 18 December 1933 (Neurath Document
Book 2, Exhibit Number Neurath-61).
The interview granted by the defendant to the representative of _The New
York Times_ in Berlin is an expression of the same endeavor. A
government or a foreign minister that intends to prepare or even plan an
aggressive war is hardly likely to make proposals for limiting or even
reducing still further the armament of that country.
Diplomatic negotiations between Germany and the individual Western
Powers which followed the memorandum of 18 December 1933 ended, as I may
presume to be well known, with the note of the French Government to the
English Government of 17 April 1934, which closed the door to further
negotiations as proposed in an English memorandum of 29 January 1934 as
well as another memorandum of the German Government of 13 March 1934, as
this was fully stated in the speech of the Defendant Von Neurath on 27
April 1934 (Neurath Document Book 3, Exhibit Number Neurath-70).
The fact which appeared in the preceding discussions is interesting and
must be emphasized here, that in their course an indisputable change was
shown in relations between France and Russia, the further development of
which became more or less authoritative, not only for German foreign
policy, but also for the entire European policy in the coming years. The
Russian representative in his speech to the Office of the Disarmament
Conference on 10 April 1934 took the stand, contrary to the point of
view always previously represented by Russia, that the task of the
Disarmament Conference was to decide on a most wide-reaching reduction
of armaments to provide maximum security, and though he admitted the
failure of their disarmament efforts he did not however draw the
conclusion therefrom that the conference had broken down, but on the
contrary held that the creation of new security instruments of
international law was the sole task of the Disarmament Conference, a
point of view which was endorsed by the Russian Foreign Minister
Litvinov on 29 April 1934. With this thesis Russia had adopted France’s
point of view: First security, then disarmament, and, beyond that, the
door was opened to the increased armament of all nations from now on. It
is evident how important this fact was in the light of the
French-Russian Assistance Pact which was signed one year later, made for
the re-establishment of German armed sovereignty and an increase in the
armament of all the remaining states. A direct path leads from this
declaration of the Russian Foreign Minister via the extensive
negotiations during the summer of 1934 regarding the so-called Eastern
Pact to the Franco-Russian Assistance Pact of 2 May 1935 and the
Russian-Czechoslovak Assistance Pact of 16 May 1935.
The French note of 17 April 1934 with its categorical “no” signified the
end of one epoch and the beginning of a new one in international policy.
France finally made it clear that she was no longer willing to carry on
with a general agreement among all states desiring a solution of the
questions of disarmament and security, but decided to go her own way
from now on. The reason for this lay obviously in the fact that she
recognized or thought she had recognized that the most important of the
participating powers, England and Italy, were no longer prepared to
follow her unconditionally, and to continue to refuse Germany the
equality of rights theoretically granted her on 11 December 1932. This
was expressed through the far-reaching _rapprochement_ of the English
and Italian points of view in the English memorandum of 29 January 1934
and in the declaration of Mussolini to the English Minister Eden on 26
February 1934, which dealt with the clearly outlined German point of
view in the memoranda of 13 March and 16 April 1934. A similar tendency
was shown in the memorandum of the so-called neutral powers, namely
Denmark, Spain, Norway, Sweden, and Switzerland of 14 April 1934, and
above all the speech of the Belgian Prime Minister Count de Brocqueville
of 6 March 1934 (Neurath Document Book 3, Exhibit Number Neurath-66)
showed the same tendency.
In this note of 17 April 1934, to which the Defendant Von Neurath
referred in his speech of 27 April 1934 before the German press, he
explained his attitude thoroughly and convincingly. France, as was soon
apparent, finally abandoned the principles of the Versailles Treaty, the
preamble to Part V which fixed in an unmistakable manner the general
disarmament of all states of the League of Nations as the basis for the
disarmament of Germany. The new French policy set up immediately after
the note of 17 April 1934 soon made it known that she had decided to
proceed along lines diametrically opposed to the basic idea of the
Versailles Treaty regarding German disarmament.
On 20 April 1934 the French Foreign Minister Louis Barthou began his
journey eastward, which took him to Warsaw and Prague. He first tried to
prepare the ground for the resumption of diplomatic relations between
the states of the so-called Little Entente with Russia, which so far did
not exist, and thus prepare the way for the inclusion of the greatest
military power of Europe on the side of France. He succeeded.
Czechoslovakia and Romania, the most important states of the Little
Entente, recognized and renewed diplomatic relations with the Russian
Government on 9 June 1934. Thus France had made the first breach in the
ideological and psychological opposition at that time felt by the
European states against Soviet Russia, and the French Minister for
Foreign Affairs, then on his second journey to the East, was not only
able to gain the consent of all states of the Little Entente to the
so-called Eastern Pact which France had long ago been negotiating with
Russia, but subsequently was able to place it openly on the agenda of
the International Policy Conference in London at the beginning of July.
With this, as the Czechoslovak Minister for Foreign Affairs Beneš justly
stated in his speech of 2 July 1934, a regrouping of the European powers
was announced, which appeared capable of overthrowing to a certain
extent all former relations on the continent.
Stanley Baldwin, who at that time was Lord President of the Council, had
on 18 May 1934 already stated before the House of Commons that in view
of the question of collective peace which of necessity involved the need
for sanctions, England stood before one of the most difficult decisions
in her history. He coined the phrase: Sanctions are war. England agreed
at the beginning of July 1934, on the occasion of the visit of Barthou
to London, not only to the Eastern Pact but in addition also to the
entry of the Soviet Union into the League of Nations, which had been
suggested by France. On 18 December 1934 the League of Nations
officially resolved to accept Russia into the League. Thus France had
for the most part already reached her goal, the inclusion of Russia, the
strongest military power, into European politics and indeed on her side
as will shortly be shown.
In spite of this heralded change in European power relations, German
foreign policy under the direction of the defendant not only continued
calmly and consistently in its peaceful struggle for the practical
recognition of German equality—even after the French note of 17 April
1934 which it considered disastrous—but also in its policy of peace. In
his speech of 27 April 1934—previously quoted—my client once more
unreservedly expressed the will of Germany that she was still prepared
for any understanding even at the price of further armament limitations
by agreement, if this would correspond with her demand for equality. She
did not, however, limit herself to this alone. In order to resume the
international discussions and negotiations regarding the disarmament
question, which had been interrupted by France’s “no” of 17 April 1934,
Hitler met Mussolini in Venice in the middle of June 1934. The purpose
and subjects of discussion at this meeting were at that time summarized
by Mussolini with the words: “We have met in order to try to disperse
the clouds which are darkening the political horizon of Europe.”
May I, then, for the sake of prudence, recall the fact that Italy at
that time was still entirely on the side of the Western Powers. Several
days later, in his speech at the Gautag at Gera on 17 June 1934 (Neurath
Document Book 3, Exhibit Number Neurath-80), Hitler used the opportunity
to emphasize once more his and Germany’s unshakable wish for peace, when
he stated literally among other things:
“If anyone says to us: ‘If you National Socialists wish equality
for Germany, then we must increase our armaments,’ then we can
only say: ‘As far as we are concerned you can do so, because
after all we have no intention of attacking you. We merely wish
to be so strong that the others will have no wish to attack us.
The more the world speaks of the formation of blocks, the
clearer it becomes to us that we must concern ourselves with the
maintenance of our own power.’”
There was a definite clearly defined change in power relationships and
the political tendencies were taking shape, which were also the basis of
the English air armament program announced before the House of Commons
on 19 July 1934, and the idea became prevalent expressed by the French
Prime Minister Doumergue in his speech of 13 October 1934 at the bier of
the assassinated Minister Louis Barthou: “The weak nations are booty or
a danger.” No matter how irrefutable this idea really was, as far as the
attitude of the Western Powers toward Germany was concerned, it received
as little consideration as all attempts of German foreign policy to
carry on the negotiations regarding the disarmament question and as the
repeated declarations of Germany about her readiness for an
understanding. Now, as before, Germany was denied the _de facto_
recognition of her equality. Apart from the encirclement policy of
France which became more discernible every day, this fact also made it
impossible for German foreign policy to join the Eastern Pact. The
reasons for this rejection of the Eastern Pact have been presented in
detail in the communiqué of the German Government of 10 September 1934
(Neurath Document Book 3, Exhibit Number Neurath-85). They culminated in
the statement that Germany, in view of her indisputable military
weakness and inferiority, could not take on any treaty obligations
toward the highly armed states which might involve her in all possible
conflicts in the East, and could make her a probable theater of
operations.
It was not the lack of preparedness to participate in international
treaties or even a lack of a will for peace which caused Germany to
maintain this attitude, but first and foremost her notorious military
weakness. Added to this was the true character of France’s policy which
showed itself more and more, and that of the Eastern Pact as an
instrument of the French policy of encirclement directed against
Germany. This character became clear to all the world when, in the
session of the Army Committee of the French Cabinet on 23 November 1934,
the reporter Archimbaud described it as an undeniable fact that a formal
entente existed between France and Russia on the basis of which, in the
event of a conflict, France would be prepared to furnish a considerable
well-equipped and well-trained army (Neurath Document Book 3, Exhibit
Number Neurath-89). This fact, however, was clearly and openly proved by
the declaration of the French Minister for Foreign Affairs Laval on 20
January 1935 before a representative of the Russian newspaper
_Izvestia_, in connection with the French-Russian record of 5 December
1934 (Neurath Document Book 3, Exhibit Number Neurath-91) and Litvinov’s
interpretations of it of 9 December 1934. For those well informed there
could exist no further doubt of the existence of a close French-Russian
alliance, even if the ratification of its final text only took place on
2 May 1935, which was then immediately followed by the ratification of
the Russo-Czechoslovak Non-Aggression Pact of 16 May 1935.
It was forced upon the mind of every clear-thinking person that the
French system of alliances made in this way was desperately akin to the
one which had opposed Germany once already in the year 1914. This
involuntary parallel was bound to make every German statesman draw the
conclusion that those alliances could only be directed against Germany
and accordingly constituted, at least, a menace to her. And this, much
more so, as these alliances, this obvious encirclement of Germany, were
by no means the only alarming events. Coupled with it, a vast increase
in military armaments of nearly all non-German countries had been
carried out in the course of the preceding months. Not only had England
begun to carry out her large-scale armament program, as is shown by the
British White Book of 1 March 1935, the submission of which does not
seem necessary, since it is an official historical document, but in
France too the efforts to reinforce her Army had begun under the
guidance of Marshal Pétain, her most popular general at that time, while
in Russia an increase in the peacetime figure of her Army from 600,000
to 940,000 men had taken place, with the joyful acquiescence of France.
Czechoslovakia had introduced a 2-year compulsory service in December
1934 (Neurath Document Book 3, Exhibit Number Neurath-92) and Italy,
too, was continually increasing her armaments.
After the bitter experiences of the latter years, all this was bound to
be felt from the point of view of German politics, as I have shown you,
My Lords, as nothing but a serious menace, and interpreted accordingly,
a menace which left Germany all but defenseless.
A foreign policy, conscious of its responsibility, had to reckon at each
moment with the danger that such a concentrated and continually
increasing power of France and her Allies could fall upon Germany and
crush her. For nothing is more dangerous than a concentration of power
in one hand. According to experience, it is bound to cause an explosion
sometime, if not counterbalanced by some other power, and this explosion
is then directed toward the nearest country considered as an enemy. This
latter was and could be only Germany, as this country alone was
considered by France as her foe, and no other country in the world
besides her.
And now I beg to ask you, My Lords, whether it was not an obvious
command of self-defense, an obvious demand of the most primitive
instinct for self-preservation of any living being—and nations, too,
are living entities with such an instinct for self-preservation—that
now the German Government and the German people took back the military
sovereignty which had constantly been denied them for no reason and that
they on their part tried to take measures of security against the menace
hanging over Germany by organizing a military air fleet and by the law
concerning the establishing of a peacetime army of only 36 divisions on
the basis of compulsory military service. I refer to the proclamation of
the German Reich Cabinet concerning the restoration of German compulsory
service of 16 March 1935 (Neurath Document Book 2, Exhibit Number
Neurath-97).
THE PRESIDENT: The Tribunal will adjourn.
[_The Tribunal adjourned until 24 July 1946 at 1000 hours._]
ONE HUNDRED
AND EIGHTY-FIFTH DAY
Wednesday, 24 July 1946
_Morning Session_
MARSHAL: May it please the Tribunal, the Defendants Hess and Raeder are
absent.
THE PRESIDENT: The Tribunal will now hear the applications for witnesses
on behalf of the various organizations, taking the SS first.
MAJOR JONES: If Your Lordship pleases, with regard to the SS
organization, defending counsel have applied for seven witnesses. Five
of these—Von Eberstein, Hinderfeld, Hausser, Riedel, and Reinicke—are
among the 29 SS witnesses whose evidence has been heard on commission.
The Prosecution have no objection to the calling of these witnesses
although, as there is a certain amount of overlapping in the evidence of
Eberstein and Hinderfeld, it is suggested with respect that this might
be avoided when those two witnesses are examined by Dr. Pelckmann.
As to the other witnesses applied for; with regard to Rode, the Tribunal
will see from defending counsel’s application that an affidavit from
this witness was put in by the Prosecution as Exhibit USA-562. Dr.
Pelckmann has informed me that he does not propose or desire to call
Rode to testify before the Tribunal itself, but will be quite content to
cross-examine Rode on commission. Therefore, if the Tribunal think that
the interests of justice demand the resumption in this particular case
of the taking of evidence on commission, the Prosecution have no
objection to Dr. Pelckmann’s suggestion. Perhaps in fairness to Dr.
Pelckmann, I ought to add that I understand that Rode only arrived in
Nuremberg a few days ago.
The last witness applied for is Hermann Rauschning, the former Senate
President of the former Free City of Danzig and the author of the book
_The Voice of Destruction_, extracts from which the Prosecution have
submitted in Document USSR-378, as part of the Prosecution case. No
affidavit from Rauschning has ever been used by the Prosecution. I
understand that Dr. Rauschning himself is now in the United States. With
regard to him, the Prosecution object to his being called as a witness
upon the following grounds. If the Tribunal will look at defending
counsel’s application, it will be seen that there are three matters
which it is desired to have clarified by Rauschning. Insofar as some of
these facts may be relevant or have evidential value, I submit that
those facts can be extracted from Rauschning’s book _The Voice of
Destruction_, and that in those circumstances it is quite unnecessary to
have Rauschning here as a witness himself. The Prosecution would, of
course, have no objection to further extracts from that book being put
in as part of the defense case of the SS organization.
THE PRESIDENT: Would the Prosecution object to interrogatories being put
to Rauschning?
MAJOR JONES: No, My Lord, we should have no objection to that.
There are facts set out in the first two paragraphs of defending
counsel’s application with regard to Rauschning. I submit that with
regard to the first, a Cassandra-like statement by Rauschning that up to
1939 his warnings were not heeded, it has, I submit, no evidential value
whatsoever. With regard to the second paragraph, in which it is stated
that Rauschning has knowledge of the fact that in 1936-37 Hitler did not
yet have the intention of exterminating the Jews, it is not in any way
clear how Rauschning could, in fact, have had any knowledge of Hitler’s
intentions at all—even the devil knoweth not the heart of man.
I do not submit that testimony of that kind from Rauschning would be
wholly irrelevant. Whatever I have said, the Prosecution would have no
objection to further extracts being taken from Rauschning’s book, or
interrogatories being administered to him.
THE PRESIDENT: Dr. Pelckmann.
HERR PELCKMANN: May it please the High Tribunal, I am in complete
agreement with what Mr. Elwyn Jones has said, as far as it applies to
the rest of the witnesses.
Regarding his statement about the witness Rauschning, I should like to
say the following. The decision of 13 March, Figure 6a, Paragraph 3,
specifies that it is relevant to submit evidence on whether the possible
criminal aims and activities of the SS were quite obvious, or were known
to the bulk of the members. I tried before the Commission to prove that
the aims and activities were not criminal, that the crimes committed
were only individual acts or acts of certain groups, and that these acts
were not known to the majority of the members. I tried to prove this by
means of relatively very few witnesses, compared with the number of
members as the Prosecutor has stated, by means of 29 witnesses from
among thousands of affidavits. All this material will still be submitted
to the High Tribunal in due course, but it all concerns the so-called
legal standing of membership. The Prosecution, on the other hand,
submitted their evidence against the SS, as well as against the other
organizations, directly to the Tribunal through documents and through
the direct testimony of witnesses, a procedure which took many weeks.
With regard to the further assertion that the bulk of the SS knew of
such criminal aims of the SS and of the criminal acts of individual
members or certain groups, the Prosecution did not present any proof,
but merely asserted that this could be seen from the circumstances, and
was a matter of course. I consider it only just and proper that in
addition to the statements of SS members, which as indirect proof I
shall submit in large numbers in the form of affidavits, and the
probative value of which could be disputed by the Prosecution because
they are statements of the people in question themselves, of the SS
members—as I say, I consider it only right and proper that in addition
the witness Rauschning, the only one of my witnesses who is not under
automatic arrest, should testify before this Tribunal, and should
testify in person. The only other witnesses who will appear in person
are the five witnesses of the SS who held a relatively high rank in the
SS and, therefore, have an over-all knowledge; but it can be held
against them that their testimony is not quite credible.
As for the person of Rauschning and the relevance of his testimony I
should like briefly to say the following: As has already been stated, he
was an SS Standartenführer and President of the Danzig Senate. He had
the complete confidence of Hitler until 1936, when the rupture with
Hitler occurred. Rauschning emigrated and was very active in publishing
material abroad. In his books, which have become well known throughout
the world, he constantly warned against Hitler and his plans, and he is
still known everywhere as a man who did not defend or protect the Hitler
regime and its guilty members.
In his many conversations with Hitler, he learned—and now I come to the
main point of my application—first, that, at least in the years 1936
and 1937, Hitler did not intend to exterminate the Jewish population. He
has given detailed reasons for this statement, and the objection of the
Prosecution that it was impossible to recognize Hitler’s intentions is
not quite apposite, because this precisely is the task of the Tribunal,
to recognize Hitler’s intentions with regard to the salient points of
the Indictment. If Hitler’s intentions are recognized then perhaps one
can judge the responsibility of the bulk of the members of the
organizations. Of course, we have only circumstantial evidence and must,
if possible, obtain and evaluate direct evidence of Hitler’s intentions.
This direct evidence of Hitler’s intentions, the witness Rauschning can
give on the basis of his conversations with Hitler, and I do not think
that one can find a better witness for this subject. Second—continuing
with the points of my application—Rauschning learned that Hitler ...
THE PRESIDENT: What is it, Dr. Pelckmann, that makes you think that
Rauschning would be able to give this evidence?
HERR PELCKMANN: I know his books, My Lord.
THE PRESIDENT: Then if it is in his book, how will it help to have him
say what is in his book again?
HERR PELCKMANN: Of course, his books represent only a very small part of
his entire knowledge, and he certainly did not write them with this
Trial in mind. The chief points brought up by the Prosecution in this
Trial can now be answered much more satisfactorily by the witness
himself than by quotations from his book torn out of their context.
THE PRESIDENT: I understand you to be saying that the only reason you
have got for thinking that he would be able to answer these questions is
because of what you see in the book. Then you do not know that he can
give any further evidence than is in the book.
HERR PELCKMANN: Of course, I do not know that but it is probable, and my
assumption that he can do it is based on experience. I do not think that
I am asking for anything out of the ordinary. I expect a man who in the
years from 1933 to 1936 concerned himself so intensively with Hitler and
Nazism, and then studied this regime in later years and discussed it
with foreigners—I expect such a man to know much more than is set down
in his books.
And I also have the following reasons for my application. In preferring
their charges the Prosecution used quotations from the books of
Rauschning, and these quotations are practically identical with
affidavits. The Prosecution would equally well have been able to obtain
affidavits on the pertinent passages in Rauschning’s book which would
perhaps have contained his assertions in more detail. According to the
rules of procedure established by this Tribunal, I am entitled to ask
that witnesses who have deposed affidavits for the Prosecution be
cross-examined by the Defense before the Tribunal. I believe that if ...
THE PRESIDENT: I am not aware that such a rule applied to witnesses in
the United States. The rule, insofar as any rule at all was made, was
that people who were in this country, if they had made affidavits, might
be brought here for cross-examination. That rule has never been applied
to persons who were in the United States or in any other country outside
this country. The case of Mr. Messersmith is an instance, and there has
never been a case of anybody being brought in, except perhaps the
witness Dahlerus.
HERR PELCKMANN: Since the Indictment and the Tribunal’s verdict is of
great importance for all members of the SS, and since, unlike the cases
of the individual defendants, I can only call members of the
organization as witnesses—and this is a considerable restriction—I
think I may ask the Tribunal that this witness—the only one who is not
implicated and can tell the Tribunal something about conditions at that
time and his views on them—that this witness be brought here; for
technical difficulties should play no part in this Trial of surely
world-wide significance. This is my full conviction.
May I continue, My Lord?
THE PRESIDENT: Certainly.
HERR PELCKMANN: The witness is to testify further that it was Hitler’s
deliberate policy to deceive the German people, as well as foreign
countries, about his plans and intentions—for instance, about his war
intentions. In very intimate conversations with Rauschning, Hitler
remarked—and almost joked about it—how successful he was in leading by
the nose not only foreign countries but even his own people. These
questions are relevant for the decision regarding evidence.
With reference to the Jewish question, I refer to the assertion of the
Prosecution that the Party program resulted directly in the
extermination camp at Auschwitz. The Party program, as the bulk of the
SS members saw it, provided only for a solution of the Jewish question
on the basis of the statute of minorities, supplemented by the somewhat
more severe Nuremberg Laws of 1935. But, however this may be, it would
not yet constitute a crime against humanity. If it could be proved that
during this time Hitler actually did not intend to exceed this program,
then the assertion of the Prosecution could no longer be upheld. If this
attitude of Hitler, at that time, can be proved, then the SS and the
simple SS man who followed this program could not have had any other
attitude either.
Secondly, the deception of the German people. The following is clear. 1)
We know today from the various documents just what did take place at
that time. We need only read the Reichstag speech about Hitler’s will
for peace, or the reasons given for the murders on 30 June 1934. But it
would be startling if a witness asserted that Hitler had confided to him
that it was his principle to deceive the Germans about his true
intentions. In answer to this, the Prosecution would have to prove that
just the SS was not to be deceived—that the SS, in agreement with
Hitler, knew what Hitler actually wanted.
THE PRESIDENT: Dr. Pelckmann, the Tribunal did not desire to hear a
general argument from you upon the whole case. They are simply dealing
with the question of whether this man Rauschning should be brought from
the United States.
HERR PELCKMANN: If the relevance of his testimony is not disputed, then
I can very well understand ...
THE PRESIDENT: Dr. Pelckmann, we have your written application before
us, and you are dealing with a variety of matters which are not
mentioned in that written application.
HERR PELCKMANN: I cannot, of course, set down in my application
everything that I would want to include. This application, naturally,
contains only my main points: (1) The Jewish question, (2) the deception
of the German people, and (3) of the SS members.
THE PRESIDENT: We have indicated to you what the view of the Tribunal
is—that we think that you have dealt with the application, and we do
not desire to hear a general argument.
HERR PELCKMANN: Mr. President, I tried only to show the relevance of my
three points of evidence. If the Tribunal can assume that these points
are relevant, then, I think, I need only add this: A single witness who
is outside the SS, who, it is true, at one time ...
THE PRESIDENT: You have already said that, Dr. Pelckmann, more than
once, and the Tribunal are quite aware of what you have said.
HERR PELCKMANN: Mr. President, do you not want an answer to the question
why we should deviate from the general rule and bring this witness here
from America? Do you not want an answer to that?
THE PRESIDENT: You have already presented argument to that effect.
Now we will deal with the SD.
MR. DODD: Mr. President, counsel for the SD has asked for only two
witnesses, and the Prosecution have no objection to these two witnesses
being heard by the Tribunal. It seems like a reasonable number.
While I am before the Tribunal, may I go on with the applications for
the Reich Cabinet and High Command as well?
THE PRESIDENT: The Reich Cabinet, we understood, was not going to be
dealt with today.
MR. DODD: We received the application for one witness this morning.
THE PRESIDENT: Oh, yes. Certainly, go on and deal with these.
MR. DODD: With respect to the High Command, counsel for the defendant
organization has asked for six witnesses, and our position is that it is
at least twice as many as are necessary, and that three—something like
three—would be a much more reasonable number to present before the
Tribunal. We have no particular preferences or no objections—no
particular objections—to any of the three. I understand, however, that
counsel prefers Von Rundstedt, Von Brauchitsch, and Von Manstein, and we
have no objections if that is his choice of the six, but we do object to
six, on the ground that they are too numerous, and all of them have been
heard before the Commission.
With respect to the application of the Gestapo, only two witnesses are
asked for—the witness Best and the witness Hoffmann—and we have no
objection to the appearances of these two witnesses.
THE PRESIDENT: The two names, Karl Heinz, are Christian names, I
suppose?
MR. DODD: Yes, so I have understood, Mr. President.
I am not clear, Mr. President, whether or not you wish to have me deal
with the Reich Cabinet. Shall I make known our attitude toward the one
witness?
THE PRESIDENT: I think so. Certainly, you may deal with them now if they
are ready. Dr. Kubuschok ...
MR. DODD: In any event, he has only asked for one witness, Mr.
President, and we have no objection—the witness Schlegelberger.
THE PRESIDENT: Very well, Mr. Dodd. Unless counsel for the SD, Gestapo,
and the Reich Cabinet want to say anything, the Tribunal do not think it
is necessary to hear them.
Then, they would hear counsel for the High Command, Dr. Laternser. Yes,
Dr. Laternser.
DR. LATERNSER: Mr. President, in view of the importance of the
accusations raised against the military leaders, I am convinced that the
application for six witnesses is justified. In order to be able to
decide the question whether the military leaders were criminal or not,
the Tribunal must first obtain a personal picture and a personal
impression of some of these military leaders. If only a few of the 129
persons affected by the Indictment against the organization I defend are
heard here, can one assume that the High Tribunal will have gained a
true picture? My definite answer is “no.”
THE PRESIDENT: Can you tell me how many of the 129 we have already heard
before the Tribunal?
DR. LATERNSER: Before this Tribunal, Mr. President—before the
Commission, seven members of the group were heard, two are still
outstanding.
THE PRESIDENT: I did not say before the Commission; I said before the
Tribunal.
DR. LATERNSER: I put questions to about five or six persons, I believe,
of this group when they appeared here.
THE PRESIDENT: Yes. Go on.
DR. LATERNSER: In estimating the number of witnesses to be heard here, I
ask that the following also be taken into consideration. In regard to
the calling of witnesses who could refute the statements made by the
witnesses of the Prosecution, the defense of the organizations are
handicapped greatly by the resolution of the Tribunal which says that
witnesses can be heard before the Tribunal only if they have previously
been heard before the Commission, even though in any other legal
proceedings there would be extensive examinations of witnesses on many
points. The circle of witnesses is thus restricted from the beginning
and dependent upon the scope of the Commission’s activities.
I consider it necessary, Mr. President, to be in a position to convey to
the Tribunal a personal picture of the group indicted, and I should,
therefore, like to make the following suggestion, which I believe to be
practicable. May I suggest that for the group which I represent—only
for my group, since I am not entitled to make a similar application on
behalf of the other organizations—that for my group the Tribunal fix a
certain time within which I may examine my witnesses before the
Tribunal, and that the actual distribution of the time allotted be left
to the defense. Then I should be able to question the six witnesses for
whom I asked. I would even be prepared to use only two-thirds of the
time to be allotted by the Tribunal, and to put one-third of it at the
disposal of the Prosecution for cross-examination. In this way, Mr.
President, I merely want to accomplish one thing—in my opinion the most
important point—I want the Tribunal to gain a personal impression of
the persons falling under the Indictment. I assume that the Tribunal
will not object to this.
I would also like to suggest for the consideration of the Tribunal that
the case against the organizations ...
THE PRESIDENT: Dr. Laternser, let me make certain that I understand the
suggestion. You are suggesting that the Tribunal should allot a certain
time for the witnesses for the High Command, and that you, as counsel
examining the witnesses, should take up two-thirds of the time, and that
the Prosecution, in cross-examination, should take up one-third of the
time. Is that correct?
DR. LATERNSER: Yes. I agree that within this time I may examine as many
witnesses as I choose.
THE PRESIDENT: How much time are you contemplating?
DR. LATERNSER: That is rather difficult for me to answer.
THE PRESIDENT: It is your suggestion. The Tribunal would like to know
how much time you are suggesting.
DR. LATERNSER: One and a half to two days in all.
I should like to make two more suggestions to the Tribunal which have
some significance in this connection. All the witnesses appearing here
have already been heard by the Commission, and the transcripts of the
interrogations are in the hands of the Tribunal. If the same questions
are put again, the evidence would certainly be cumulative. How then is
the examination of the witnesses to be carried through without
interruptions? Looked at from this angle, the suggestion I have just
made becomes even more important, and also seems to remove the
difficulties which I have described. If this is taken into consideration
I believe the Tribunal would be able to follow my suggestion.
Finally, I should like to suggest the Tribunal also make a decision with
regard to the handling of the final words on behalf of the accused
organizations.
That is all.
THE PRESIDENT: The Tribunal would like to hear you with reference to Dr.
Laternser’s suggestions, Mr. Dodd.
MR. DODD: Very well, Mr. President.
We have, insofar as we recall, made a list of the names of the people
who have appeared before the Commission as members of the organization,
or of the groups, and those who have appeared before the Tribunal. I
stated a few minutes ago that all of those who have not appeared—such
as Von Brauchitsch, who was to appear, and who may have appeared
yesterday, I am not informed—will appear in a day or so.
With reference to the suggestion of Dr. Laternser that he be allowed a
specific time and may use as many witnesses in that time as he sees fit,
we find two difficulties. First of all, we do not feel that he is being
generous enough in allotting us one-third of the time. Possibly we may
require more time for such a number of witnesses. In any event, we do
not want to have a restriction placed on us to the effect that we have
only one-third of the time that he has. If we are to examine witnesses
on the time standpoint, we feel that much of the time would be taken up
before the Tribunal on matters that have already been thoroughly dealt
with before the Commission. All the witnesses have been heard before the
Commission, and Dr. Laternser has had a full opportunity to examine and
cross-examine before the Commission, and it seems unnecessary to burden
the Tribunal with a great number of witnesses here.
THE PRESIDENT: The Tribunal would like to know whether it would make any
difference to the arguments just presented to us if the Prosecution were
allotted the same amount of time as Dr. Laternser?
MR. DODD: Well, it would make a little difference. Frankly, I did not
consider that too important a point.
THE PRESIDENT: Perhaps there is one other thing which bears upon it. The
Tribunal would like to know how you think the difficulty is to be met,
that it seems unnecessary for the witnesses who are called before us
here to give the whole of the evidence given before the Commission, or
even to enter upon the subjects which have been entered upon before the
Commission; and the Tribunal would like to know how that difficulty is
to be met.
MR. DODD: We have been thinking about this very problem, and we had
assumed that the witnesses who have appeared before the Commission, and
who have been examined there, would not go over the same grounds before
the Tribunal, otherwise the proceedings of the Commission would be
rather senseless, and we might just as well get up and read the record
of what was said before the Commission. We had understood that the
witnesses would have something new to add to what they had already said
before the Commission. That is our understanding.
THE PRESIDENT: Of course, I think Dr. Laternser has said on various
occasions that he attached importance to the actual presence of the
witness so that the Tribunal could see him and form their own opinion of
the witness’ credibility.
MR. DODD: Yes, that is what I understood to be one of the reasons, but
three members ...
THE PRESIDENT: In addition to our seeing the witnesses and forming an
opinion of their credibility, he would be able to summarize the evidence
given.
MR. DODD: Yes, I assume that would be so. Of course, four of these
members of the groups we are in the dark about—and two of the members
of Naval Command, Von Brauchitsch and Milch, and a number of others.
THE PRESIDENT: Thank you.
MR. DODD: With respect to the time suggestion which I made, I repeat I
do not think that is too important. I know we can confine ourselves in
cross-examination to the important matters, but I think it is the
experience of the Tribunal that we seldom stayed within the limits which
were established.
THE PRESIDENT: I do not think it is necessary to hear further argument.
We will consider your suggestion; and your arguments, Dr. Laternser, are
unnecessary unless there is anything particularly new that you wish to
say. The Tribunal will consider your suggestion.
We will now deal with the political leaders.
LT. COL. GRIFFITH-JONES: The Leadership Group has asked for seven
witnesses: Two of them are Gauleiter, and are witnesses Kaufmann and
Wahl; one Kreisleiter, Meyer-Wendeborn; one Ortsgruppenleiter,
Wegscheider; Blockleiter Hirth and two experts on the staff of the
Hoheitsträger—namely, a farming expert who was also a political leader,
and Hupfauer who was a political leader in the DAF. The Prosecution have
no objection to any of these witnesses, but we feel that the grounds
could not be adequately and properly covered. And it may be of help to
the Tribunal if I suggested the witnesses most important, and those
which might be dispensed with.
THE PRESIDENT: Probably the Defense Counsel would wish to make their own
selection.
LT. COL. GRIFFITH-JONES: My Lord, I fully appreciate that. I was only
trying to assist the Tribunal if I could.
THE PRESIDENT: Yes, in indicating which appeared to you to be the most
important.
LT. COL. GRIFFITH-JONES: Yes.
THE PRESIDENT: Yes, perhaps you could do that.
LT. COL. GRIFFITH-JONES: The Blockleiter Hirth, I respectfully submit,
ought to be called, as he is the only Blockleiter represented. The
witness Hupfauer ought to be called, because he represents the experts
on these staffs. There is a certain amount of dispute about them. And
also, he represents a number of political leaders who were in the DAF
itself. Of the Gauleiter, Kaufmann and Wahl are experienced. Kaufmann
comes from an industrial district and Wahl from an agricultural
district, and I understand, if there were to be any preference, that Dr.
Servatius prefers Kaufmann. There are also representing the agricultural
districts, in addition to the Gauleiter Wahl, the Ortsgruppenleiter
Wegscheider and the farmer Mohr. My Lord, I would respectfully suggest
that certainly three of those witnesses are unnecessary. They really
cover very much the same ground as each other and the Prosecution, quite
frankly, would have preferred the witness Wahl. I simply put that
forward to explain that they are all from agricultural areas and perhaps
one, or certainly two, would be sufficient. Meyer-Wendeborn is an
experienced Kreisleiter from an industrial district, and does, to a
great extent, cover the same ground as the Gauleiter Kaufmann, so that
the Tribunal might consider having one or the other if they felt that
the present number was excessive.
Now, I do not think I can assist the Tribunal further than that.
DR. SERVATIUS: Mr. President, I named two Gauleiter; one from the
industrial area—that is, the witness Kaufmann—and the witness Wahl
from a rural area in the vicinity of Augsburg. I believe it would be
important to get an impression of these two types of Gauleiter; one of
these men was active in the Party for 20 years, and the other for 17
years, and both were political leaders. Before being able to judge the
activities of the political leaders over such a wide area, and
throughout such a long period of time, it is necessary to hear two
people from the top level. I should, therefore, like to ask that, if
possible, both witnesses be allowed. I should like the witness ...
THE PRESIDENT: Dr. Servatius, two things I should like to ask you about
these Gauleiter. Did not these two, Kaufmann and Wahl, deal with exactly
the same topics before the Commission?
DR. SERVATIUS: Yes, but I want to divide the topics, and ask Kaufmann
about relations with the top authorities, with the Reich Government, and
Wahl about relations with the lower echelons, with the Kreis and
Ortsgruppen. Of course, I could limit myself to one witness, but then
the topics would not lie separated and would be bigger.
THE PRESIDENT: You mean you have not asked them about it before the
Commission?
DR. SERVATIUS: Yes, but in the same way, separately.
THE PRESIDENT: There is one other thing. How many Gauleiter have we
heard already before the Tribunal?
DR. SERVATIUS: I should think three or four, I do not know the exact
figure; but they were not questioned about this topic, because it would
have disturbed the taking of evidence at the time if we had gone into
such detail.
THE PRESIDENT: Go ahead and deal with the other matters.
DR. SERVATIUS: The next witnesses are for Kreis, Ortsgruppe, and Block,
and I think that from each level there should be one witness who can
speak of the conditions in his field. Their testimony will, of course,
overlap, but it can be shortened so that the actual examination will
perhaps be quite brief and not too far afield; but it is, I think,
important to have one witness from each level.
THE PRESIDENT: Could you give the Tribunal any estimate of the time you
think it would take to deal with these seven witnesses?
DR. SERVATIUS: I am sure I can do it in one day; it depends upon how the
evidence is to be taken. I assume we shall have a brief summary and
clarify only a few questions on principle.
Then there are two more witnesses, Hupfauer and Mohr. One is from the
German Labor Front, from an industrial region, and the other is from the
Reich Food Estate and can speak about rural conditions. Both witnesses
can speak about the position of the specialist offices which were not
political directing offices, and can thus differentiate between the
nonpolitical and the political leaders.
That is all I have to say.
THE PRESIDENT: The Tribunal will adjourn.
[_A recess was taken._]
THE PRESIDENT: The Tribunal makes the following order:
With reference to the case of the SS, the five witnesses, Brill, Von
Eberstein, Hinderfeld, Reinicke, and Hausser are allowed. Rode may be
called to be cross-examined before the Commissioners. Interrogatories
may be administered to Rauschning, but they must be administered
immediately, and they will only be considered if they are received
before the case is closed. Further extracts from Rauschning’s book,
which has been referred to, may be submitted to the Tribunal.
With reference to the case of the SD, the two witnesses applied for,
Höppner and Rössner, are allowed.
The two witnesses applied for by the Gestapo, Best and Hoffmann, are
allowed.
With reference to the application on behalf of the Reich Cabinet, the
witness named must be called before the Commission.
With reference to the General Staff and High Command, General Von
Manstein and two others will be allowed. If it is desired that General
Von Brauchitsch should be one of the two, he must be called before the
Commission, and it is necessary that these matters should be decided by
counsel for the defendant organization at once.
With reference to the political leaders, the defendant’s counsel must
select five out of the witnesses applied for and those five will be
allowed.
That is all.
I call on Dr. Von Lüdinghausen.
DR. VON LÜDINGHAUSEN: May it please the Tribunal: Yesterday I attempted
to show the weighty and compelling reasons why the leaders of the German
State had to decide to reinstate Germany’s armed sovereignty.
But also before making this decision Germany had waited for the outcome
of the negotiations for a general agreement on disarmament, which the
British Government had opened again with the so-called London Communiqué
of 3 February 1935, and in which Germany, faithful as always in its
foreign policy to the principle of peace, had at once agreed to
participate. Germany was prepared to wait even longer, until one could
see whether or not these new negotiations would succeed; but before the
negotiations had really begun, the French Government, on 1 March 1935,
suddenly brought out a new defense bill prolonging military service, and
almost simultaneously the British Government published its White Paper,
which has already been mentioned. In view of these two measures, the
German Government had no alternative: It had to take the steps which I
have described, otherwise it would have betrayed its own people.
The effect of these German measures on the Western Powers was a varied
one. England and Italy, it is true, at once protested against them as an
alleged unilateral cancellation of international treaties; but they did
not by any means exclude the possibility of further negotiations, and
the British note of protest explicitly inquired whether the German
Government was ready to conduct further negotiations of the nature and
extent provided in the London communiqué. This inquiry was immediately
answered in the affirmative by the Defendant Von Neurath. The reply was
contained in the German Communiqué of 18 March 1935, Neurath Document