Book 2, Exhibit Number Neurath-61).

[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

Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, Volume 19 · 第 1 / 11 章