The four concepts, leader, organizer, instigator, and participator, are

presented as being equally important. Perpetrators coming within these

four possibilities are also to be dealt with equally. These four

concepts, insofar as they differ textually, can consequently only

explain in what different forms a plot can be fashioned. One person

instigates, the other organizes, another leads the gang, still another

takes part in the plot in some other way. Therefore, all four concepts

are closely connected with the common plan. They are united only because

of the common plan. Only that makes them true accomplices. To make plans

jointly, to want jointly to carry something out, that is the primary

concept ruling these four secondary concepts. Only the functions in

themselves may, of course, be different. They can also be divided by the

conspirators themselves. If the conspirators have jointly invented the

plan, have formulated it or, by agreement, have merely furthered it,

then it should be of no consequence which part each one of them plays in

its execution. It should, therefore, also be basically unimportant

whether within this plot someone is the leader, the inspirer, or merely

another participant in the plan. But, everyone presumably must be a

party to the plan. At least, he must have recognized its purpose, for

according to the words of the Charter, he must have participated in it,

and that either (a) in the formulation, or (b) in the execution—but

only of a common plan—or (c) in some other conspiracy for the

commitment of an individual crime. Only then is he responsible for

others when in the execution of such a common plan someone commits a

crime. The word “accomplice” refers therefore to the plan. He is an

accomplice in the plan, and is in no respect different from the leader

or instigator. A wider meaning in an accessory sense must therefore be

not far removed from this concept.

In common law, the concept of accomplice as a guiding principle has also

an altogether different meaning than accessory. By accessory, according

to the prescriptive legal conception, only one of the forms of

complicity is understood, and that is the form by which a deed by

another person is only supported or furthered, a deed which the

accessory does not exactly want to be his own; it means the mere support

of the main deed. Article 6, last paragraph of the Charter, cannot have

such a meaning. There the participant is to be put on an equal basis

with the accomplice, whereas in common law the accessory, as subordinate

participant, can never be accomplice in a punishable deed. In common law

the assistants are merely accessories. It cannot have been the intention

of the creators of the Charter to regard the mere accessory as

participant in the plan; for whoever participates in a plan is to answer

fully for the deeds of others, even if he has only subordinately

participated in the formation of the plan. But if the opposite is true,

then it must follow that whoever does not participate at all in the

formation or discussion of a common plan can therefore not be charged

with full responsibility for what others have done. It is thereby

immaterial whether the others committed a crime in the execution of a

plan or only incidentally upon the occasion of its execution. The

responsibility of the one for the deeds of the other can only exist when

the plan binds them together. It is for this reason that the concept of

conspiracy presupposes of necessity the idea that what is being done

takes place under the impulse of a common will and a common knowledge in

relation to the plan.

This description of participation as restricted to the plan is, in my

opinion, expressed also in other parts of the Charter. In Paragraph

1—and not only in Paragraph 6, Section 1—it is stated that in

execution of the Four Power Agreement of 8 August 1945, at first the

“principal war criminals,” the “principal culprits,” the “principal

conspirators,” should be called to account here before this Court.

Assistants, accomplices, simple agents of execution, and all other

merely dependent, accessory perpetrators who do not belong to the

central body—that is to say, who are not connected with the conspiracy

plan or in closer agreement for the carrying out of a single

crime—cannot be considered as belonging to such a group. Within the

meaning of conspiracy and the responsibility of the one for the other

connected with it, there can be no simple “helpers” at all.

As concerns the Defendant Fritzsche, I have demonstrated that—if only

due to his position in the State and the Party structure—he can neither

belong to the restricted group of conspirators nor to the wider group of

the organizations. Moreover, Captain Sprecher has himself pointed out

(Session of 23 January 1946) that Fritzsche is not represented by the

Prosecution as the type of conspirator who would have thought out the

all-comprehensive strategy, that his particular field lay even outside

the framing of the plan; but that it was not necessary for him to have

correctly understood the basic strategy—to have perceived the aim when

he was the spokesman of the conspirators. I believe that this

conclusion, if the concept of “participator” within the meaning of the

conspiracy is rightly estimated, contains an error of thought. He of

whom it is said that he even stood outside those who made the plan

definitely does not belong to the group of conspirators.

After these legal arguments, which are even supported by the opinion of

the Prosecution, I come now to this conclusion: The Defendant Fritzsche,

against whom it has not been proved here that he took part in any common

planning, can on this account not have been a participator in the

alleged conspiracy. At any rate, he cannot be punished according to

Article 6, last paragraph of the Charter. According to the underlying

conceptions of the Charter there should be somewhere a limit fixed

concerning the indictment of an individual person in these trials. When

is someone still an accomplice, and when is he no longer that but only a

tool or accessory? Where is this boundary through which the

responsibility for one’s own deeds can be separated from the

responsibility for what others have done? Because there must be a

dividing line for this collective responsibility also. I think the

common plan constitutes this dividing line. He who does not belong to

those who do the planning must also be left out of the group of

conspirators.

On the other hand, the framers of the Charter provided for the

possibility (a) of pronouncing an individual culprit a criminal even

though he does not belong to the group of conspirators, and (b) of

declaring an organization as such a criminal organization.

If the Defendant Fritzsche does not belong to the group of conspirators

and, as is definitely established, was never a member of even one of the

organizations being prosecuted here, he could be convicted only if he as

an individual had committed crimes as covered by Article 6, Paragraph

2(a) to (c) of the Charter. In that case, however, just as in any

ordinary criminal procedure, the Prosecution must furnish proof of a

criminal offense. If he does not belong to the conspiracy, if he does

not belong to an organization, the Prosecution cannot rely on a

so-called legal assumption, an assumption which is supposed to result

from the mere membership in an organization. It is not possible to

reverse the evidential proof. The second question then is: Did

Fritzsche, as an accomplice or abettor, belong to the class of those

criminals of whom it has been proven that they as individuals committed

crimes against peace, violations of law governing warfare, or crimes

against humanity? He as an individual is not charged with committing any

one of these crimes with his own hands. The charge is directed against

him only by reason of his activity as an accessory.

As far as I can see, the concept of the accessorial accomplice is not

foreign to English and American criminal law.[6] However, common law is

governed by the principle that the accessory falls into the same class

as the accomplice, in other words, that, irrespective of the measure of

his personal culpability, he should be punished, in principle, just like

the perpetrator. It seems that at all times English law was inclined to

apply the principle of equal punishment for perpetrator and accessorial

accomplice.[7]

-----

[6] Chronological differentiation: Accessories before the fact,

principals, accessories after the fact. A differentiation of principals

is also made according to the degree of the matter, dividing them into

matter of first degree and of second degree; the latter are also

segregated into those who assisted in execution itself through advice

(abetting) or those who lent aid during commission of the deed (aiding).

[7] Mention should be made that an English law (act of 1861), for

example, makes a differentiation between accessories and abettors,

abandoning—even though merely as a matter of choice—infliction of

equal punishment in the case of different types of crimes, so that in

the case of felonies equal punishment may be inflicted: “may be

punished”... In case of misdemeanors, it is true, equal punishment must

be imposed: “shall be liable to be punished.”

-----

The reason for referring here to English common law is merely in order

to establish a link with the German concept of law. It is, therefore,

sufficient to establish at present that English and American law also

differentiate between the concept of a perpetrator and that of a mere

accessorial accomplice. On that point, therefore, a decisive difficulty

arises, resulting from the fact that there is a difference in the

concept of right and wrong between the Prosecution and the defendants.

The concepts are bound to be different because their statute law is not

the same. That is the reason why I cannot as yet conclude my legal

argumentation. Differences in conceptions, although familiar to both

legal spheres, result in entirely different legal inferences as far as

statute law is concerned.

The British chief prosecutor (Session of 4 December 1945 a. m.) referred

to the individual responsibility of each single defendant according to

the meaning of Article 6, Section 2(a) to (c) of the Charter. In that

connection he remarked that it is a commonplace in common law that

persons who help a criminal and shield him, who give advice and help to

a criminal, are criminals themselves. By stating this he possibly

represented the view that, according to the spirit of the development of

English law, such persons, by reason of their complicity in someone

else’s deed, must be punished in the same manner as the main

perpetrator—that is, the accessorial quality of the accomplice, if I

understood Sir Hartley Shawcross correctly, is in principle of no

importance even with respect to common law. In practice this might mean

that a legal distinction between accomplices and accessories plays no

part here, or at best might determine the degree of the respective

responsibility for the measure of the individual guilt. Is the one who

merely supports the deed of someone else to be judged, in principle, in

exactly the same way as the one who wants the deed to be carried out as

his own? I may refer to the effects which such an interpretation could

have on the measure of punishment for example.

At this point it might be in order to say this: the legal maxim

propounded by Sir Hartley Shawcross may indeed be commonplace for every

adherent to the English and American law, but this does not hold true

for a German defendant. As I also infer from the argument of the French

prosecutor, Dubost, this does not seem to hold true for French common

law, either, because he pointed out that, according to the principle of

penal law, strictly speaking, none of the defendants could in that case

be considered as main perpetrators but merely as accomplices. And

because the confines of common law concepts are too narrow, it is the

opinion of the French Prosecution that the deeds which are to be

adjudicated here are not equal to common law with its rationalistic

statics, that it would be necessary to apply a law which goes beyond

this (Session of 1 February 1946 a. m.). The concept of conspiracy,

therefore—the science of the plot (Komplottlehre)—and the possibility

to declare an organization criminal, are to be the vehicle by means of

which it will be possible to go beyond common law.

However, how about the case of a defendant who does not belong to the

conspiracy nor to an organization? After all, law is to be applied! This

then leaves nothing but common law for judging the individual deed.

Which law is otherwise to be applied for such general concepts as for

instance, guilt, intent, negligence, but also for the accessorial

quality of the accomplice? It is possible that through the establishment

of new facts, the Charter created new substantive law. But what is the

juridical concept with which to approach these new facts? The

classification of the actual circumstances of a case will probably have

to be made only by means of the analogy of penal law concepts. With

regard to the facts of the case listed in Articles 6(b) and (c) of the

Charter, these correspond essentially with the facts of a case in common

law. A defendant as an individual who did not take part in drawing up

the plan, and who did not belong to an organization, can then be judged

only according to principles which also must apply for every other

delict of common law. If concepts such as, for instance, an accomplice

who acted as an accessory are involved, argumentation against a

defendant can take place according to common law only.

German legal ethics have had to face the most complicated legal

problems, particularly in connection with the doctrine of the forms of

participation; in other words, with the question as to how an accessory

should be classified according to the various possibilities of

participation. From this in particular results the decisive question: Is

it possible that the Charter went so far—I repeat, what is involved are

common law concepts—as to prohibit taking into account the deep-rooted

legal concept of those accused here in judging an accomplice who acted

as an accessory? Is it possible that it entirely ignored even the

completely different structure of statute law?

In view of the utterly different nature of statute law, especially with

reference to the question of accessorial assistance, I ask permission to

make a few remarks on the legal dogmatic conception of German law. In

all fairness, and at least as far as the concept of an accessorial

accomplice is concerned, a German defendant can be charged only with

what is known to the concept of law adopted by his people and which, at

the same time, is in keeping, morally, with his sphere of knowledge.

That is the decisive point!

By reason of the provisions of statute law in Paragraph 49 of the Reich

Penal Code, there is not only a strict separation between the accomplice

and the perpetrator, as far as the concept is concerned, but

necessarily, and as a matter of principle, he is also to be punished

less severely than the perpetrator himself. Jurisprudence and the

administration of justice, therefore, have made a sharp distinction

between the perpetration of an act itself and the mere abetting or

support of somebody else’s act by the accomplice. This distinction, is

made not only in accordance with external characteristics, objective

factors, but also with regard to what occurs in the mind, and thus with

subjective factors. During decades of German administration of justice,

particularly that of the Reich Supreme Court, this is expressed in such

a way that, in the case of assistance in somebody else’s action, the

accessory is said to have the animus socii, but the perpetrator himself

the _animus auctoris_. According to German law the assistance seen from

the exterior—that is, according to objective factors—is only a

furtherance and support of the action of the principal perpetrator; the

accessory must have helped to bring about success by his support.[8] If

he has not helped to bring about this success, then he is not an

accessory—then his action is not punishable.

-----

[8] Reich Court 56, 168: “A condition for the action of another person

must be established objectively.”

-----

Concerning the mental side of the deed, the intent, the will of the

accessory _animus socii_ must be directed to the end that somebody

else’s action is supported with his knowledge. And so when judging what

is going on within the mind of a perpetrator, German law also makes a

sharp distinction between will and knowledge.[9] And this discrimination

is furthermore decisive as to whether somebody has given assistance at

all.

-----

[9] If I am not mistaken, this corresponds roughly to the distinction

between the act of intent (vicious will) and the ability to distinguish

between good and evil (some blameworthy condition of mind) of English

legal theory.

-----

I have stated before what Fritzsche could have known about plans or

their execution from his duties. Only if it has been proved that he had

a definite knowledge and will as an accessory to the plans, could he be

convicted. It would also have to be investigated in the case of the

Defendant Fritzsche whether what he knew and wanted in connection with

an alleged furtherance is identical with what someone, as a principal

perpetrator of a crime, then actually did. Only when the knowledge and

intent of both agree, can there be question of an accessory at all. In

this connection, it is to be emphasized that a vague knowledge, a very

general intent, is not sufficient to establish the state of being an

accessory. The accomplice must be concretely aware of the elements of a

plan which another is to carry out in accordance with his intention.[10]

-----

[10] These legal principles have been developed on the basis of

Paragraph 49 of the Reich Penal Code in many decisions of the High Court

of Justice of the Reich; the reproduction of at least one of these

decisions seems appropriate to explain the German legal theory. As early

as in its decision of 7-10-1890 (RG. 21, 95) the High Court of Justice

of the Reich formulated the question as follows: “Because the substance

of being punishable as an accessory lies in knowingly furnishing help in

the commission of the perpetrator’s offense, it does not only presuppose

that the accomplice must have had knowledge of all the essential

characteristics of the deed to be committed, but also that his will, his

intent, was directed toward supporting and furthering the execution of

this specific, concrete deed of the perpetrator by his assistance. The

deed that was actually committed or intended must coincide to this

extent with that which was knowingly supported by the accomplice in all

essential characteristics. If this agreement is lacking, especially

should the perpetrator use the assistance given him for the execution of

another deed or for a more serious deed which for special reasons

remained unknown to the accomplice, this cannot be ascribed to the

accomplice. His criminal responsibility extends only as far as his

intention to furnish assistance goes and finds fulfillment.” Compare to

this also the decisions, in RG. 15, 316; RG. 37, 323; RG. 56, 350.

-----

The Prosecution, however, also charge Fritzsche in various points with

instigating specific crimes as an accessory. And so the third question

is: Has Fritzsche been the instigator of any single crime?

At the beginning of these legal statements, I already referred to the

details of Captain Sprecher’s prosecution speech (Session of 23 January

1946). To me it is doubtful if here the concept of instigation is meant

in the legal-dogmatic sense of common law. The concept of incitement is

used essentially to the extent that it corresponds to the German legal

concept of mere invitation (Aufforderung). This charge of instigation

can only be raised insofar as it can be said to concern the individual

responsibility of Fritzsche for a specific crime mentioned in Article 6,

Paragraph 2(a) to (c). The assumption that Fritzsche was a possible

instigator to a common plan within the group of conspirators cannot be

substantiated, in any case, in accordance with what I have already

explained earlier. Instigation as an accessory form of participation in

the general legal sense presupposes, however, contrary to the case of an

accomplice in which, a criminal will is only to be supported or

maintained, that such a will must first of all be produced in the

perpetrator. The psychological influence does not consist in affirming

or strengthening the intention of the individual who has already decided

to carry out the deed, as in the case of the accomplice, but in first

producing or creating the will for the deed.[11]

The means for this can be of the utmost variety, but the perpetrator

must be brought to change his ideas in that direction.[12]

-----

[11] Compare “accessory before the fact” with the two possibilities,

that of the “instigator” who first produces the decision, or that of the

“abettor” who gives intellectual assistance before the execution.

[12] From a decision of the Supreme Court (Reichsgericht) in RG. 36,

404: “An attempt at instigation presupposes that the person to be

incited is not already determined to commit a criminal act of his own

accord or under the influence of others.” Compare with this also RG. 26,

362.

-----

Assistance and instigation as accessorial forms of participation

correspond to one another, in that also in the case of instigation a

conscious and causative connection, also willed by the instigator, must

exist between his instigation and the decision of the perpetrator. The

principle of equivalence is valid just as in the case of assistance. The

perpetration of a deed must correspond with the conception and the will

of the instigator. The instigator is therefore only responsible to the

extent of his intention. A possible _excessus mandati_ cannot be

attributed to him. From this stems the accessoriness not only of

assistance but also of instigation.

The evidence has not furnished the slightest proof in the Fritzsche case

that he has committed an individual crime as instigator through his

transmission of news; there is not the slightest evidence to show that

he has instigated a single person to murder, cruelties, deportations,

killing of hostages, massacre of Jews, or other crimes mentioned in the

Charter, or had, as instigator, caused a single crime by his speeches to

the public. Not a single passage from his nearly 1,000 wireless speeches

could be produced from which such individual responsibility could be

deduced. That was not possible with public speeches, anyway. The crimes

which were committed were carried out by people completely indifferent

to Fritzsche’s propaganda. They received their impulses or instructions

from altogether different sources. Were not these deeds to be kept

secret? The official news service was to avoid handling this as much as

possible. As this Trial has shown in a particularly impressive manner,

the perpetrators took the greatest pains to limit the knowledge of, for

example, the annihilation of the Jews to a very small circle. What was

self-evident with every other state constitution—namely, that

occurrences throughout the country should be handled through the

press—was not permissible in our dictatorship. The people were not to

be asked whether they approved such occurrences. The crimes, established

by this Trial, were not to be given any publicity. Can one assume that

under such circumstances the press and the radio were suitable means to

instigate the perpetration of crimes? Is it not more probable that such

occurrences were specially kept secret from the press and the radio? For

not a single case—even though the speeches of Fritzsche may have had a

marked tendency—can it be said that he, through public speeches of all

things, could have instigated a single individual to commit punishable

deeds.

Possibly the juridical indications of the Prosecution do not go so far.

The Prosecution will then reproach Fritzsche for his contributing to an

“atmosphere of hate” (Session of 23 January 1946). Only through such

propaganda was it at all possible for gruesome crimes as these to be

committed in Germany. This reproach, however, is legally irrelevant.

This charge would have legal importance only if the Defendant Fritzsche

had been among the group of so-called conspirators, if he had been the

instigator of a common plan. I believe I have proved that this

absolutely does not hold true. If he had actually created an “atmosphere

of hate,” this would not, outside of the group of conspirators, have

enabled him from a legal point of view to instigate anyone to commit

certain crimes. Furthermore, according to the provisions of the German

penal law, exhortations disseminated by radio would even exclude the

fact of an instigation in a criminal sense. According to German

jurisdiction, as practiced for decades, an instigation would legally be

impossible because the influence exerted could not have been centered on

a certain individual. Furthermore, German law concerns itself merely

with instigation to commit a concrete deed and not with an instigation

to commit punishable actions in general.[13] In principle, therefore,

any sort of exhortation directed toward a group of persons individually

undefined, does not constitute an accessory instigation; it is rather

outside the framework of legal relevancy altogether.

-----

[13] Compare “Decision of Reichsgericht” (German Supreme Court) in RG.

(_Reichsgesetzblatt, Reich Law Gazette_) 34, 328: “It is not sufficient

to influence someone along the line of criminal thinking, or of

direction of will _per se_, to justify the assumption of punishable

instigation. It is adopted practice, therefore, that the concept of

instigation does not exist as long as it involves persuasion of another

person to commit criminal deeds in general—even though of a defined

category—unless evidence is established that commission of the recent

punishable action which actually occurred was in that person’s intent

who originated the general summons.” Also compare RG. 26, 362.

-----

It is quite self-evident, however, that Fritzsche’s radio addresses were

perforce directed to an entirely unlimited number of persons. Inasmuch

as he was seriously striving to find for the German press and radio

propaganda a “foundation based on truth,” could he have had the

intention at all to instigate to criminal actions? My client admitted in

an impressive and unequivocal manner that he followed the tendency of

the official German policy in his news reports and comments. In other

words, he did not take advantage of the fact that international law did

not place him under any restraint, and nothing in the evidence submitted

has refuted his good faith. However, in the light of the law, when it is

concerned with incitement to complicity, or with assistance given as an

accomplice, good faith is equivalent to lack of will and lack of

purposefulness.

This establishes: 1) That the Defendant Fritzsche did not belong to the

scheming group of conspirators; 2) that he was never, at any time, a

member of a group or an organization which is to be declared criminal

here; 3) that for factual and for legal reasons, he is not personally

guilty of a war crime or a crime against humanity, neither as an

accomplice nor—according to the law—as an instigator, and not

even—also according to the law—as an assistant.

And so, I believe I have sufficiently discussed the question of evidence

and the legal conclusions to be drawn therefrom.

It is necessary, though, to mention one other thing. The Fritzsche case

also has its human aspect. Apart from the pros and cons of the legal

potentialities, another obvious question must not be left unanswered:

Can it be directly attributed to Fritzsche, as a human being, that he

had knowledge of or was co-originator of all the horrors which came to

light in this Court?

In the sense of the Indictment, he is an _instrumentum dolosum_ in the

hands of the conspirators—of whom Goebbels was perhaps one—who had

knowledge of their aims and purposes. Fritzsche’s measures and

utterances, however, were not dictated by criminal will. During his

examination before this High Tribunal, Fritzsche never put forward the

argument of superior orders. But he added that as far as his own person

is concerned he was never expected to do anything criminal. And he

furthermore declared: No one was obliged to feel compelled to carry out

a criminal order. Undoubtedly, Fritzsche sacrificed his own convictions

and made many a compromise. This, however, he did not do where he

thought he discovered injustice, violence, and inhumanity. As is fitting

to a journalist, he examined with care whatever reports reached him from

abroad. Despite personal danger such as beset those who would penetrate

the veil of secrecy, he followed the news which came from within Germany

itself. He did not permit himself to be put off with paltry, vague

explanations. He reported many details. I merely refer to his visits to

Glücks, Heydrich, and his investigations in the Ukraine.

Wherever he learned about criminal plans, such as the Commissar Order

and the inhuman plan to revenge the air bombardments on Dresden, he

opposed them with determination, in the latter case even with the help

of a foreign ambassador. And he was successful, too, as these two

conspicuous examples show. He did this because he followed the voice of

his conscience. He did not first engage in lengthy deliberations as to

the pros and cons. With regard to the Commissar Order he merely had

heard of it as a soldier—he had never read it, nor did he know whether

it actually was carried into practice at any time—and he at once raised

a protest. When Goebbels ordered him to announce a mass murder of Allied

fliers, he did not mind incurring the anger and the fury of his

Minister. Dr. Scharping described this in detail (Document Number

Fritzsche-3). When he learned of cruelties in the concentration camp at

Oranienburg, he protested. The culprits were punished at that time. Dr.

Scharping’s affidavits (Document Number Fritzsche-2) which I submitted,

and others, prove his implicit willingness to assist those who were

persecuted, for political or racial reasons, when they appealed to him.

Significant of his tolerance is the fact that he made possible the

continued publication of the _Frankfurter Zeitung_ (Document Number

Fritzsche-5). Other proofs along that line, which are also submitted

with my Document Book 2, are not negligible, and in the very case of

Fritzsche certainly cannot simply be passed over with the comment that

he cold-bloodedly handed men over to their death (Prosecution Address of

23 January 1946). He was not willing to sacrifice his dignity as a human

being to false idealism, nor for the sake of an oath he had taken.

While the Prosecution have tried to darken the picture, I can point to

brighter spots—namely, those which picture him as the representative of

propaganda.

Was he a liar—perhaps a notorious liar? That Goebbels was one became

clear by the revelations of this Trial. And as it was wrongly assumed

that Fritzsche was his right-hand man, the implication was, of course,

that Fritzsche had the same attributes. This assumption should now

clearly be refuted. It is my conviction that, had not Goebbels evaded

his responsibility by seeking a way out through death, we should not see

Fritzsche in the dock here as representative of the Propaganda Ministry.

The further assumption that all collaborators of Goebbels must wittingly

have made use of lies, too, is unjustified. It would only be justified

if it had been established here that Fritzsche was in a position to

grasp all the real and deep-lying connection and causalities. But only

this Trial made that possible. Fritzsche remained entangled in error

like millions of other Germans. Glaring abuses were to be seen

everywhere. Fritzsche was not unaware of them. Indeed, he has declined

to be characterized before this Tribunal as an opponent of Nazism. He

does, however, claim for himself to have opposed abuses insofar as he

could recognize them. This entitles him to be put on a higher moral

plane.

Neither was he a zealot or a fanatic, obsessed by one idea or by the

adoration of power and success, and inaccessible to criticism. Of

course, it was a sin, indeed the grievous sin against the spirit, to

have continued to serve the system. The decisive point is, however,

whether he was in a position to detect more than mere abuses. Falsehood

was already built into the foundation, and anything built upon that was

bound to be deceitful. It was not only the “thousand-door ministry,” as

it was once called, that was poisoned. The real reason why everything in

Germany was poisoned by falsehood could best be detected by those who

lived in a purer atmosphere.

Fritzsche did not keep immune from the phraseology; but he used it

perhaps with better taste than many others. He was in a position to

state here—and this is no mere empty phrase—that he has always acted

fairly and honorably in every respect in his professional work. Dr.

Scharping, too, has emphasized this in his affidavit. Is this not an

indication that he really did not detect that the whole foundation upon

which his work was built up was hollow and deceitful? Had he been a

professional liar, he would not have been interested in doing clean,

honest work, in checking foreign reports, and in all that which induced

him to find a truthful basis for the press and radio.

The Prosecution, have laid stress upon his rise in the Propaganda

Ministry. Did they mean to imply thereby that he was particularly

qualified as a liar? Actually, his career—however modest it was,

compared to that of Hitler’s other vassals—has quite a different

foundation as has also been clearly determined here. He got ahead only

because he was qualified as a journalist, as an expert, not because he

was particularly good at lying, but because he had a better command of

speech than many others.

As proved by the affidavits of Dr. Scharping and Frau Krüger (Document

Number Fritzsche-8) Fritzsche lived on a modest scale. During his

activity in the Propaganda Ministry he gathered no riches, possessed no

luxurious dwelling; nor would he have accepted any presents. The

Prosecution, moreover, made no claims to the contrary. It therefore does

not appear astonishing that those who had not only heard his voice on

the radio but also knew him personally should have emphasized his humane

qualities. Dr. Scharping declares in his affidavit, “it was considered a

distinction to be allowed to work with him.” Is it in keeping with human

experience that a man who lies could have won such respect? I believe

human esteem can only be won by an honest character. Those who are in

daily intercourse with a person can find out whether he is a liar or

not. And if his speech does not betray him, then his eyes will.

There may be many possibilities to clarify the contradiction that

somebody who has co-operated in the propaganda of the Third Reich is

nevertheless honest and a lover of truth. The most immediate explanation

is probably that which can well be taken from Fritzsche’s own remark,

which I repeat here: He said he felt—and this may well be significant

for the verdict if not for history—that he, too, was deceived by

Hitler. Before this Tribunal Fritzsche has not only defended himself but

the German people as well. To what extent he himself is responsible to

the German people for the fact that he, again and again, and till the

end, urged them to see the war through, is not a matter to be decided

here. Even though Fritzsche may not, like others, have realized at an

earlier date that he was serving an evil cause, or although he may not

have divorced himself from the state leadership because he wanted to

share the cup of bitterness with the German nation to the last dregs, he

is not guilty in the sense of the Indictment brought against him before

this Tribunal. I ask for his acquittal.

THE PRESIDENT: The Tribunal will adjourn until 2 o’clock.

[_The Tribunal recessed until 1400 hours._]

_Afternoon Session_

MARSHAL: May it please the Tribunal, the Defendants Streicher and Raeder

are absent.

THE PRESIDENT: The following is the order of the procedure to be

followed in the cases against the organizations:

Paragraph 1: The Tribunal draws the attention of counsel for the

organizations to the order of July 1st, which directed that any of the

evidence taken on commission which counsel for the Defense or the

Prosecution wish to use should be offered in evidence and thus become

part of the record, subject to any objections. It will be convenient to

the Tribunal, if it is desired, to offer the whole of the evidence at

the outset of the proceedings.

Paragraph 2: The counsel for the Defense will then put in their document

books, subject to any objections.

Paragraph 3: The witnesses for the Defense will then be called and

examined by defense counsel who will bring out the matters they regard

as important, given in evidence before the Commission, and any new

relevant matters. Each organization will be dealt with in turn, and the

whole of the evidence for that organization, both examination and

cross-examination, heard before dealing with the next organization.

Paragraph 4: Counsel for each organization will then make his closing

speech, dealing with the evidence given before the Tribunal, and making

the necessary references to the documents introduced in evidence. He

will also draw the attention of the Tribunal to the matters contained in

the evidence given before the Commissioners and in the summaries of the

affidavits which he deems important and which he wishes the Tribunal

specially to consider.

Paragraph 5: The Counsel for the Prosecution will reply when all the

speeches of the defense counsels have been made.

Paragraph 6: The Tribunal is of the opinion that the closing speeches of

counsel for the Prosecution and Defense ought to be short, not exceeding

one-half day in each case. If this time is thought likely to be

exceeded, a special application must be made to the Tribunal, stating

the grounds for such extension of time, not later than Monday next, July

29th. That is all.

I call on Doctor Seidl for the Defendant Hess.

DR. ALFRED SEIDL (Counsel for Defendant Hess): Mr. President, Honorable

Judges. Before beginning with the final plea for the Defendant Hess, I

beg permission of the Tribunal to represent the defense counsel for

Defendant Göring and submit on his behalf two exhibits. Both have been

allowed by the Tribunal, and they refer to the Katyn case, that is to

say, the question of the murder of 11,000 Polish officers in the

neighborhood of Smolensk. The first is Exhibit Number Göring-60, an

extract from the German White Book, referring to the report on the

post-mortem examination conducted by the Bulgarian Professor Borotin.

The second is Exhibit Number Göring-61, which is also an extract from

the German White Book, and refers to the Katyn case. It is the report of

the International Medical Commission of 30 April 1943.

Mr. President, Honorable Judges: When the German people, having lost the

first World War, set out in 1919 to rebuild their public life on

democratic principles, they found themselves facing difficulties which

were caused not merely by the war itself and the material loss resulting

therefrom. The Defendant Rudolf Hess was among the first

comrades-in-arms of Adolf Hitler and belonged to those who time and

again reminded the German people of the great dangers which would of

necessity arise for Germany’s domestic economy and for world economy as

the result of the reparations policy of the victor states of 1919. The

consequences of that policy were bound to be all the more devastating

for Germany when in 1923 France proceeded to effect the military

occupation of the Ruhr territory, the center of Germany’s economic

power. At that time of economic collapse and complete disarmament of

Germany, Adolf Hitler made the first attempt on 9 November 1923 to seize

the power of the state by revolution. The Defendant Rudolf Hess also

took part in the march to the Feldherrnhalle in Munich. Together with

Adolf Hitler, after having been convicted by the People’s Court, he

underwent imprisonment at Landsberg Fortress, where Hitler wrote his

book _Mein Kampf_.

When in 1925 the Party was established again, Rudolf Hess was one of the

first to resume with Adolf Hitler the struggle for a national rebirth of

the German people. During the first years after its rebirth the Party

began its slow ascent. Germany’s domestic economy had recovered from the

worst effects of the Ruhr invasion. The currency had been stabilized and

owing to very extensive foreign credits it had even been possible to

bring about an economic boom.

Very soon, however, it was revealed that the economic progress of the

years 1927-29 in reality was but an illusory prosperity for which in

Germany, at any rate, there was no foundation in a sound and

well-balanced national economy. It is true that the economic crisis

which began in 1930 was a general crisis in world economy and that the

decline which Germany experienced at that time was but a part of the

general disintegration in world economy. It is just as certain, however,

that it was not a question here simply of a seasonal decline within the

capitalist economy—such as had been experienced repeatedly by

individual commercial economies of states and by world economy—but a

case, in this instance, of structural changes owing to different causes,

one of the most important of which, however, undoubtedly was the

disruption in the exchange of products and legal tender caused by the

unreasonable reparations policy.

It is just as certain that the consequences of the crisis in world

economy were devastating in Germany, 7 million having been thrown out of

work, because the changes brought about in the national economy as a

result of reparations payments were far-reaching. If, however, the

National Socialist German Workers’ Party won a major electoral victory

in the Reichstag elections of 14 September 1930 and entered the new

Reichstag with no less than 107 delegates, it is to be attributed to the

economic crisis then prevailing, to the great unemployment, and

indirectly to the economic absurdity of the reparation payments and the

refusal of the victorious states to consent to a new arrangement despite

the most urgent warnings. True, the reparation payments stipulated in

the Treaty of Versailles and the mode of settlement were amended by the

Dawes and Young Plans. It is, however, just as true that these

amendments came too late and demands were continued for payments from

Germany to an extent and under conditions which were bound to, and did

in fact, lead to an economic catastrophe. In this connection I must

point to the following fact: the Prosecution have produced an extensive

amount of documentary evidence in reference to the rise of the NSDAP

until its seizure of power. A comparison of the Reichstag

representatives in the years from 1930 to 1932 with the unemployment

figures for the same period would disclose that these figures ran

parallel. The more hopeless the social consequences of unemployment

became—and in 1932 no less than 25 million people including family

members may be estimated to have been affected by the consequences of

unemployment—the more impressive became the electoral successes of the

National Socialists. I hardly think there could be a more convincing

proof of the existence of a causal relation between the consequences of

the reparation policy of the victorious powers of 1919 and the rise of

National Socialism. The causal relation may be summed up in a short

formula: No Versailles Treaty, no reparations—no reparations, no

economic collapse with its particularly catastrophic effects upon

Germany, which found expression in an unemployment figure of nearly 7

millions—and without this collapse, no seizure of power by the National

Socialists. The political and historical responsibility of the

authoritative foreign statesmen resulting from this causal connection is

so crystal-clear that further demonstrations of it are superfluous in

the framework of this Trial.

This formula may appear too pointed and it may furthermore be true that

it was not the economic emergency and the high unemployment figure alone

which induced millions of Germans to vote National Socialist on 14

September 1930 for the first time and which led to the subsequent

progress of the Party’s rise to power. Nevertheless, these causes were

assuredly among the foremost, and even the other causes which played a

part in the decision of many voters can finally be traced back to the

fatal effects of the Treaty of Versailles and refusal of the victorious

powers, especially France, to consent to a revision of the treaty. This

applies in the first place to the claim for equality of rights raised by

all subsequent democratic governments.

When the German nation had disarmed in fulfillment of the Versailles

Treaty, it was entitled to expect the victorious powers to disarm also,

in accordance with the obligation assumed by them in the treaty. This

was not carried out and there can be no doubt that their denial of the

equality of rights as evidenced by their refusal to disarm themselves

figures among the most decisive causes of the rise of National Socialism

in the years 1931 and 1932. And if any of Hitler’s arguments ever found

a response in the German nation, it was that equality of rights could

not be denied in the course of time, even after a lost war, to a nation

like the German nation, with a population of over 75 millions, situated

in the heart of Europe and with a cultural past of which few other

nations can boast. It has already been remarked in this courtroom that a

nation which has produced a Luther, a Goethe, and a Beethoven cannot be

indefinitely treated as a minor nation.

Again and again Hitler had occasion to remark upon the fact that the

statesmen of the Weimar Republic left no method untried to arrive at a

peaceful revision of the more unbearable clauses of the Treaty of

Versailles. For 8 years the statesmen of democratic Germany, Stresemann

and Brüning, went to Geneva to obtain at last the repeatedly promised

equality of rights for Germany and they were repeatedly sent home with

empty hands. The dangers produced by this situation could not remain

concealed from anyone. In fact, the world was warned by German

statesmen, as well as by shrewd politicians of Germany’s former enemies.

All these warnings were scattered to the winds.

When finally in 1932 the National Socialist Party with 230 seats in the

Reichstag had become by far the strongest party in Germany, it could

only be a question of time until Hitler and his Party would be entrusted

with the taking over of government leadership. In the long run this

could be avoided all the less since the previous Governments of Herr Von

Papen and General Schleicher had no appreciable following in the

Reichstag at their disposal and exercised their governmental authority

exclusively by the means of emergency decrees in accordance with Article

48 of the Weimar Reich Constitution. When, on 30 January 1933, Adolf

Hitler was actually appointed Reich Chancellor by Reich President Von

Hindenburg and was entrusted with the formation of a new cabinet, this

was done altogether according to the clauses of the Reich Constitution.

At the Reichstag election in 1932 the National Socialist Party received

more votes than had been received by any party since the beginning of

the German Reich. If the leader of this strongest party was entrusted

with the formation of the cabinet, this was by no means extraordinary,

particularly in view of the parliamentary conditions prevailing in

Germany at that time, and there cannot be the slightest doubt that

Hitler and his Party came to power legally, that is, according to the

Constitution. However, it is correct that in the course of the following

years the constitutional structure of the German Reich and particularly

Hitler’s position underwent a change. There is, however, no evidence on

hand that this development as well was not legal. In this respect, in

order to avoid repetition I am referring to the statements of the

witness Dr. Lammers.

In this case it may be left completely undecided whether one wants to

attribute this development to Hitler’s absolutely autocratic rule by the

creation of a so-called prescriptive state law or whether one avails

oneself of another theory. For the scope of this Trial it seems to me

much more decisive that not a single nation with which Germany

maintained diplomatic relations raised any objections whatsoever or even

drew diplomatic or international legal conclusions either at the seizure

of power or on the occasion of the transformation of the constitutional

structure carried on openly before the entire world. Neither at the

seizure of power nor at any later period was the question of diplomatic

and international legal recognition of the National Socialist State in

doubt.

In addition, may it merely be pointed out that the law, which in the

following period was to become of the greatest importance for the

relationship between citizen and state, was still issued by Reich

President Von Hindenburg pursuant to Article 48 of the Reich

Constitution. I have in mind the decrees of the Reich President for the

Protection of the People and the State, dated 28 February 1933

(_Reichsgesetzblatt_, Part 1, Page 83). In Paragraph 1 of this decree,

the most important basic laws of the Weimar Constitution were voided,

and curtailments of personal liberty—the rights of free speech,

including freedom of the press; the right to organize and assemble;

interference in the privacy of the letters and mails, telegraph and

telephone; orders for searching of homes; and confiscations, as well as

property restrictions—were declared valid, even beyond the legal

limitations otherwise imposed.

From a formal viewpoint there can be just as little doubt about the

legal validity of this decree as there can be about any other so-called

constitutional or basic state law issued by the Reichstag, the Reich

Cabinet, the Ministerial Council for Reich Defense, or by Hitler

himself.

Gentlemen of the Tribunal, on behalf of the Defendant Rudolf Hess I have

already stated that he assumes the full responsibility for all laws and

decrees which he has signed in his capacity as the Deputy of the Führer,

as Reich Minister and member of the Ministerial Council for Reich

Defense. Therefore I have refrained from presenting documentary evidence

in reference to accusations which, as a sovereign state, merely concern

the domestic affairs of the German Reich and have no bearing on the

crimes against peace and crimes against the laws of war mentioned by the

Prosecution. I shall, therefore, now only touch on such laws and

constitutional and political measures which have some recognizable

connection with the actual Counts of the Indictment and the Common Plan

or Conspiracy asserted by the Prosecution.

The Indictment accuses the Defendant Rudolf Hess of having sponsored the

military, economic, and psychological preparations for war and of having

participated in the political planning and preparation of wars of

aggression. As evidence for this assertion, the Prosecution pointed to

the fact that the Defendant Rudolf Hess, in his capacity as Reich

Minister without Portfolio, cosigned the law of 16 March 1935 for the

reconstruction of the Armed Forces. This law reintroduced general

conscription in Germany and stipulated that the German peacetime army

was to be divided into 12 corps commands and 36 divisions. For this

Trial the proclamation which the Reich Cabinet directed to the German

people in connection with the publication of this law and which was

placed above the law in the _Reichsgesetzblatt_, appears to me no less

important than the contents of this law. I refer to the contents of this

proclamation which has been presented as an exhibit. This proclamation

of 16 March 1935 contains no essential arguments on this question which

had not already previously been brought out by the democratic German

governments at the time of the Weimar Republic.

Your Honors, the Tribunal have permitted me to read at least part of my

brief in connection with this question. However, in view of the fact

that counsel for the Defendant Von Neurath has already referred to this

question in detail, I shall merely refer to his argument in this

connection and I shall therefore, on my part, forego detailed comment.

The reintroduction of general military service by the law of 16 March

1935 is apparently not considered in the Indictment as a punishable

offense in itself, but only as part of the general plan as asserted by

the Prosecution, designed to commit crimes against peace, against the

laws of war, and against humanity. Whether such a plan ever existed at

all, whether and to what extent the Defendant Rudolf Hess was involved

in it and what part the reintroduction of general military service may

have played in both an objective and a subjective way in this plan, I

shall take up in detail later.

Within the scope of the common plot, of having planned and prepared a

war of aggression, the Defendant Rudolf Hess is also accused of having,

in his capacity as Deputy of the Führer, set up the

Auslands-Organisation of the NSDAP, the League for Germans Abroad, the

German Eastern League, the German-American Bund and the German Foreign

Institute. The documents submitted by the Prosecution in this connection

do not furnish proof to the effect that the Defendant Hess himself

issued directives or orders to these organizations, which could have

caused them to pursue activities similar to those of a fifth column. The

testimony of the witnesses Bohle, Ströhlin, and Alfred Hess has, on the

contrary, proved that the Defendant Hess, in particular, clearly forbade

these organizations and leaders to interfere with the internal affairs

of other countries. The Prosecution have not been able to prove in any

way that the afore-named organizations had actually developed activities

which were aimed at undermining the structure of foreign states from

within.

Under these circumstances it is superfluous to go into the activity of

the afore-named organizations in more detail, all the more so since

there is nothing at all tending to prove that there was any causal

connection between the tasks and functions of these organizations and

the events which later led to the outbreak of war in the year 1939.

The Prosecution furthermore tried to prove that Defendant Rudolf Hess

also took a decisive part in the occupation of Austria on 12 March 1938.

I do not intend to enter into details of the history of the annexation

and to consider from the legal point of view the facts which actually

led to the annexation of Austria to the German Reich in the year 1938.

[sm type begins]There is one point, though, that must be established

here: The right of self-determination of nations was a salient factor

among the Fourteen Points of President Wilson. It is a fact, however,

that of the postulates of the American President none was realized by

the Treaties of Versailles and St. Germain to so small an extent as just

this right of self-determination. The Tribunal has already been offered

in evidence the resolution of the Provisional Austrian National Assembly

of 12 November 1918. In this new basic law the following is ordained,

_inter alia_: “German Austria is a democratic republic. All legislative

and executive powers are instituted by the people. German Austria is

part of the German Republic.” The declarations made by the then

Social-Democrat Federal Chancellor, Dr. Karl Renner, in justification of

this constitutional law are no less definite when he says, among other

things:[sm type ends]

[sm type begins]“Our great nation is beset by misery and

distress, the nation which was always proud to be called the

nation of poets and thinkers, our German nation of humanism, of

mutual love among the nations; it is bowed down with sorrow! Yet

in this very hour when it might be easy and convenient, and

perhaps even tempting, to prepare a separate account, and maybe,

gain advantage from the enemy’s trickery—in this very hour let

our people everywhere know: We are of one race and share a

common fate!”[sm type ends]

[sm type begins]Contrary to the expressed will of an overwhelming

majority of the Austrian population a union of the two German nations

was vetoed by the Entente. The victorious powers, by threat of a hunger

blockade, prevented a plebiscite on the question of the Anschluss voted

for by the Austrian National Assembly on 1 October 1920. Nevertheless

some of the provinces carried out such a plebiscite independently, with

the result that an overwhelming majority voted for the Anschluss. Indeed

nothing could describe the situation better than the following passage

in State Secretary Lansing’s book, _The Peace Negotiations_, published

in the year 1921: “A more patent denial of the ostensible right of

self-determination than this veto against the Anschluss with Germany,

willed almost unanimously by the German-Austrian people, can hardly be

imagined.” This wish of the Austrian people to be united with the German

Reich did not only show immediately after the first World War, but

remained alive in the times afterward. It is a moot question as to the

specific reasons for this trend and what reasons prevailed at one time

or another. Certainly there can be no doubt that such a wish did exist,

and that the Anschluss would have been realized but for the opposition

either of the Entente or of other powers which believed they had thus to

defend so-called interests. In this connection reference may be made to

the declaration of Federal Chancellor Dr. Renner of 12 November 1928,

which has likewise already been submitted by the Defense, which reads

_inter alia_:[sm type ends]

[sm type begins]Today, 10 years after the 10th of November 1918,

and forever, we shall faithfully abide by this resolution and

confirm it by our signature.... The Peace of St. Germain has

destroyed the right of self-determination of the Germans in

Austria.... Let the people of Austria vote freely and 99 percent

will vote for the reunion with Germany ...” And this is what

really happened:[sm type ends]

[sm type begins]When the German troops marched into Austria on 12 March

1938 they did not come as conquerors but were received by a jubilant

population in one triumphal procession.[sm type ends]

In order to save time I shall refer to the extensive statement made by

counsel for the Codefendant Dr. Seyss-Inquart.

Whatever now concerns the participation of the Defendant Rudolf Hess and

the Party in bringing about the annexation, the evidence has only shown

that the annexation of Austria was an incident which did not really have

anything to do with the National Socialist Party in the Reich as such.

It is sufficient to refer in this connection to the testimony of the

Defendant Göring and to that of Dr. Seyss-Inquart on the witness stand,

which shows that the question of the annexation was solved exclusively

by the Reich, that is, by state authority and not by the Party.

If any doubts should still have existed on this point, they were removed

by Document Number 812-PS, Exhibit Number USA-61, presented by the

Prosecution. It deals in this case with the letter of the Gauleiter of

Salzburg, Dr. Friedrich Rainer, to Reich Commissioner Gauleiter Josef

Bürckel, in which he states, among other things:

“... Soon after the seizure of power in the Ostmark, Klausner,

Globocznik, and I flew to Berlin in order to give a report to

the Deputy of the Führer, Party member Rudolf Hess, about the

incidents which led to the seizure of power.”

A report naturally would not have been required if the Deputy of the

Führer and the Party itself had been directly and decisively

participating in the solution of the annexation question. I do not

mention this in order to give reasons of justification or excuses on

behalf of the Defendant Rudolf Hess. The findings are rather made

exclusively in the interests of historical truth.

I now come to the question of the Anschluss of the Sudetenland. 3.5

million Sudeten Germans were incorporated into a state with 8.5 million

Czechs and Slovaks, without being granted a decisive influence on the

state. All attempts of this national group to receive autonomy within

the Czechoslovakian state structure remained futile. When the question

of annexation with regard to Austria was solved, it was inevitable that

the future position of the Sudeten Germans, which after all consisted of

3.5 million persons who undoubtedly belonged to the German nation, would

be subjected to a test.

Now, I do not intend to take a detailed legal stand on all questions of

the annexation of the Sudetenland to the Reich. In view of the fact,

however, that the Prosecution in the trial brief which they presented

before the Tribunal against the Defendant Hess treated the Sudeten

German question and have also presented several documents as evidence,

it appears necessary to take a brief stand concerning them.

Document Number 3258-PS, Exhibit Number GB-262, deals with a speech of

the Deputy of the Führer at the meeting of the Auslands-Organisation of

the NSDAP on 28 August 1938. The latter in general phrases takes a stand

on the Sudeten German question by emphasizing the principle of

nationalities and the right of self-determination of the nations. Also

the remaining documents presented by the Prosecution, Document Number

3061-PS, Exhibit USA-126, Document Number 388-PS, Exhibit USA-26, do not

show on what a decisive participation of the Defendant Rudolf Hess in

the solution of the Sudeten German question could be based.

However, the extent of this participation can be completely ignored, as

the annexation of the Sudetenland to the Reich cannot in itself

constitute facts for a criminal charge according to international law.

After all, the annexation of the Sudetengau was not carried out on the

basis of a one-sided act of Germany or on the basis of a perhaps

disputable agreement between the German Reich and the Czechoslovak

Republic. The annexation, rather, took place on the basis of an

agreement which had been concluded in Munich on 29 September 1938

between Germany, the United Kingdom of Great Britain, France, and Italy.

In this agreement exact and very detailed stipulations were made about

the evacuation of the territory to be ceded and the step-by-step

occupation by German troops. The final determination of the frontier was

carried out by an international committee.

Without wishing to go into further details, it can still be said with

certainty that this is a treaty which had been concluded on the basis of

a free agreement and that all those participating expected that it might

provide the basis, or at least a considerable prerequisite, for an

improvement of international relations in Europe.

I now come to another point of the Indictment. Within the limits of the

Indictment as a whole, as well as in the personal accusation raised by

the Prosecution against the Defendant Rudolf Hess, the latter is accused

of having participated in the outbreak of war and of being responsible

for it. The Defendant Rudolf Hess actually did take a stand in several

speeches on the question of the Polish Corridor and the problem of the

Free State of Danzig. In this case, however, the following must be

stated:

By the establishment of the Polish Corridor, not only the right of

self-determination of the nations was violated—after all, more than one

million Germans came under Polish domination in this manner—but in

addition to this, through the partition of the state territory of the

German Reich into two areas completely separated from each other, a

situation arose which was not only contrary to all economic common sense

but which, moreover, was bound to become the cause of constant discord

from the very outset. Indeed, from the day of the signing of the

Versailles Peace Treaty, the demand for a revision of the treaty,

especially in the question of the Polish Corridor, has never been

silenced at any hour. There was no party and no government in Germany

which did not acknowledge the necessity of a revision of the treaty,

primarily in this point. There can be no doubt that if Poland ought to

have an independent access to the Baltic Sea under all circumstances,

this problem could have been solved much more sensibly than by the

establishment of the so-called Corridor and the thereby stipulated

partition of the German Reich into two areas which were completely

separated from each other.

Something similar applies with regard to the status of the Free State of

Danzig on the basis of international law and state sovereignty. It is

not necessary to look at the facts more closely in this case, which in

the course of time have led to constantly increasing difficulties and

which in the end necessitated a change with regard to international law

and the state sovereignty of this purely German city.

It is just as unnecessary to go into greater detail with regard to the

minority problem which was raised by the Polish Corridor and the

establishment of a Free State of Danzig. The fact is that in the course

of two decades, no less than approximately one million Germans were

forced to leave their settlement area, and especially under

circumstances which could not remain without effect on the general

political relations between the German Reich and the Polish Republic.

The problems raised here have been publicly discussed even before Adolf

Hitler came to power.

Under these circumstances, it could not surprise anyone if after the

seizure of power by Adolf Hitler and his Party, the questions raised by

the Polish Corridor and the separation of Danzig from the Reich were

subject to re-examination. This was all the more unavoidable since after

the conclusion of the German-Polish Treaty in the year 1934, Poland’s

increasing attempts to exclude the German element did not cease.

I do not intend to discuss in further detail the negotiations which were

conducted by the German Reich with the Polish Republic, the aim of which

was to find a _modus vivendi_, taking into consideration Poland’s

justified interests. Nevertheless, it appears important to me to keep

the following facts in mind, and this seems to be essential for the

reason that the Prosecution stated again and again that the defendants,

the German Government, should have done everything to clarify those

questions and that especially the German Government should have

conducted negotiations, and that the one thing that they should not have

done was to start a war. The following statements are to show that

attempts were made to solve pressing problems by negotiations.

For the first time the Reich Minister for Foreign Affairs, in the course

of a conversation with the Polish Ambassador on 24 October 1938,

discussed the question raised by the Corridor and the separation of the

city of Danzig and suggested a solution which was to be based on the

following foundation:

“1. The Free State of Danzig returns to the German Reich.

“2. An extraterritorial Reichsautobahn belonging to Germany and

likewise an extraterritorial railroad with several tracks would

be constructed across the Corridor.

“3. Poland likewise obtains an extraterritorial road or

Autobahn, a railroad, and a free port in the Danzig area.

“4. Poland is guaranteed a market for her goods in the Danzig

area.

“5. The two nations recognize their common frontiers or the

territories of both sides.

“6. The German-Polish Treaty is to be extended by 10 to 25

years.

“7. Both countries include in their treaty a consultation

clause.”

The Prosecution themselves submitted to the Tribunal the reply of the

Polish Government to this proposal. The document is Document Number

TC-73, Number 45, which describes the attitude of the Polish Foreign

Minister Beck of 31 October 1938 and his instructions to the Polish

Ambassador Lipski in Berlin. In this document the German proposal is

flatly turned down on the grounds that “...any attempt to incorporate

the Free City of Danzig into the Reich would invariably lead to a

conflict, and the resulting difficulties would not merely be of a local

nature, but would prevent any possibility of Polish-German understanding

in all its aspects.”

In fact, such also was the stand taken by the Polish Ambassador during

another conversation which he had with the Reich Foreign Minister on 19

November 1938. When asked about the Polish Government’s attitude

regarding the German proposition of an extraterritorial Reichsautobahn

and an extraterritorial railway through the Corridor, the Polish

Ambassador declared that he was not able to make an official statement

on these questions.

It is impossible to deny that the proposal made by Germany was very

restrained and contained nothing incompatible with Polish honor or the

vital interests of that state. One should be all the more willing to

admit this, as the creation of the Corridor and the separation of East

Prussia from the Reich was really felt by the German people to be the

heaviest burden of the Versailles Treaty. If, nevertheless, the Polish

Government turned this proposal down, for reasons which excluded any

prospect of finding a solution in subsequent negotiations, the

conclusion could be drawn that already at that time Poland had no

sincere wish to enter into an agreement, which would take into

consideration Germany’s legitimate interests. This impression was

confirmed by the negotiations during the visit of the Polish Foreign

Minister Beck to Berlin on 5 January 1939, and the return visit by the

Reich Foreign Minister to Warsaw on 21 January 1939. When, in spite of

this attitude of Poland, the Reich Foreign Minister repeated the

proposition made on 24 October 1938 in another meeting with the Polish

Ambassador on 21 March 1939, we must conclude that the German Government

was sincerely desirous of solving, by means of negotiation, the

questions relative to the Corridor and the separation of the city of

Danzig. Thus it cannot be seriously denied that the German Government

tried to solve the Danzig question and that of the Polish Corridor by

negotiation and that it made very moderate proposals in that respect.

The reply to the German proposals of 21 March 1939 was a partial

mobilization of the Polish armed forces. The connection between the

partial mobilization ordered by the Polish Government and the British

proposal for consultation, dated 21 March 1939, need not be discussed,

nor whether, incidental to the transmission of this consultation

proposal in Warsaw, the declaration of guarantee of 31 March had already

been promised or contemplated by the British Government. There can be no

doubt, however, that the partial mobilization of the Polish armed

forces, as also admitted by the British Prime Minister Chamberlain in a

declaration before the House of Commons on 10 July 1939, was not

calculated to create favorable prerequisites for further negotiations.

As a matter of fact, the subject of the memorandum of the Polish

Government given by the Polish Ambassador Lipski on 26 March 1939 was a

complete rejection of the German proposal. It was declared that

extraterritoriality for the highways was out of the question, and that a

reunion of Danzig with the Reich could not be considered. In the

conversation between the Reich Foreign Minister and the Polish

Ambassador, which followed the transmission of the memorandum, the

latter declared quite openly that it was his unpleasant duty to point

out that to pursue the German plans further, particularly insofar as

they had a bearing on the return of Danzig to the German Reich, would be

tantamount to a war with Poland.

The connection between the Polish mobilization of 23 March 1939 and the

Polish memorandum of 26 March 1939 containing a complete rejection of

the German proposal on the one hand, and the proposed British

guarantee-pledge of 31 March 1939 on the other hand, which I said may be

left open, appears justified with regard to the proposed “formal

declaration” made by the British Government as early as 21 March in

Warsaw, as well as in Paris and in Moscow. This “formal declaration” was

to announce the opening of immediate discussions on measures of mutual

resistance against any attack on the independence of any European state.

Furthermore, the speech by Prime Minister Chamberlain on 17 March in

Birmingham, and the speech of the British Foreign Minister, Lord

Halifax, of 20 March in the House of Lords, reflected a point of view

bound to encourage the Polish Government all the more toward

stubbornness. As a matter of fact, the proposed step of “a mutual formal

declaration” already proposed on 21 March 1939 by the British Government

to the Governments in Warsaw, Paris, and Moscow proved to be the opening

of lengthy discussions whose purpose it was to place an iron ring around

Germany.

It was thus clear from the very outset that, under such conditions,

bilateral negotiations between the German and the Polish Governments

promised but little success, in any case as long as those discussions

lasted. In another memorandum handed to the Polish Foreign Minister on

28 April 1939, already submitted by the Prosecution, the German

Government nevertheless once more explained its attitude completely and

established once more its readiness for further negotiations. Contents

of this memorandum, including proposals made in March 1939, were

announced publicly by Adolf Hitler in his speech delivered in the

Reichstag on 28 April 1939.

In reply to the memorandum of the German Government of 28 April 1939,

the Polish Government transmitted on 5 May 1939 a memorandum which has

also been submitted by the Prosecution. That memorandum contained even

more emphatically a complete rejection of Germany’s proposal for solving

the problem of the Corridor and the Danzig question.

Negotiations which began on 21 March 1939 between London, Paris, Warsaw,

and Moscow for the purpose of establishing an alliance exclusively

directed against Germany, did not proceed as desired. Nor was it

possible for the French and British military missions, sent to Moscow on

11 August 1939, to eliminate completely the difficulties arising from

evidently far-reaching political differences of opinion. It need not be

established how important was the fact that Poland, which was to obtain

a guarantee by England, France, and the Soviet Union, obviously refused

to accept military assistance from the Soviet Union. It also remains

uncertain whether it is correct that the Soviet Foreign Commissar

Molotov asserted during the special meeting of the Supreme Soviet on 31

August 1939 that England had not dissipated Poland’s apprehensions but,

on the contrary, had increased them. It seems more important to examine

the fundamental differences of opinion.

I was about to refer here to an extract from the well-known book written

by the former British Ambassador in Berlin, Sir Nevile Henderson. In

consideration of the fact that the Tribunal do not desire to have this

quotation read, I shall merely refer to it.

Meanwhile, the following had actually occurred: At the Eighteenth

Congress of the Communist Party on 10 March 1939, the President of the

Council of People’s Commissars of the USSR, Stalin, made a speech in

which he intimated that the Soviet Government considered it possible or

desirable to reach a better understanding even with Germany. Hitler

understood this hint perfectly well.

Foreign Commissar Molotov expressed himself similarly in his speech

before the Supreme Soviet on 31 May 1939. Thereupon, the discussions

between the German and the Soviet Governments were followed by the

conclusion of a German-Soviet Trade and Credit Agreement. This agreement

was signed in Berlin on 19 August 1939. But already during these

economic negotiations, questions of general political nature were

discussed which, according to the Soviet Russian News Agency Tass on 21

August 1939, made known the desire of both Governments to bring about a

change of their policy and to ban war by concluding a nonaggression

pact. This nonaggression pact was signed in Moscow on the night of 23 to

24 August 1939—therefore, as shown by the presentation of evidence in

this Trial, 2 days before the attack of the German Army against Poland

was ordered for the morning of 26 August 1939.

Besides this nonaggression agreement, a “Secret Supplementary Protocol”

was signed as an important part of the agreement. On the basis of the

presentation of evidence, especially on the basis of the affidavit of

Ambassador and Chief of the Legal Department of the Foreign Office, Dr.

Friedrich Gaus, on the basis of the testimony of Baron von Weizsäcker,

State Secretary in the Foreign Office, and on the basis of the

statements of the Defendants Von Ribbentrop and Jodl, the following

contents of the Secret Supplementary Protocol can be considered as

established: In the case of territorial-political reorganization in the

territories belonging to the Baltic States, Finland, Estonia, and Latvia

should fall into the sphere of interest of the Soviet Union, whereas the

territory of Lithuania should belong to the sphere of interest of

Germany. For the territory of Poland, the division of spheres of

interest was made so that the territories lying to the east of the

rivers Narew, Vistula, and San should fall to the sphere of interest of

the Soviet Union, whereas the territories lying to the west of the

demarcation line determined by these rivers should belong to the German

sphere of interest. In other respects an agreement was reached

concerning Poland, that both powers would act on mutual agreement on the

final settlement of questions concerning this country. With regard to

southeastern Europe, the limits of spheres of interest of both sides

were made so that the Soviet side stressed its interest in Bessarabia,

whereas the German side disclaimed any interest whatsoever in this

territory. According to the testimony of all witnesses, but especially

on the basis of the statements by Ambassador Dr. Gaus and State

Secretary Von Weizsäcker, it is established that this secret agreement

included in it a complete new settlement concerning Poland and the

future fate of the Polish State.

The efforts nevertheless to come to an understanding with Poland with

regard to the question of Danzig and the Corridor, made after the

conclusion of the German-Soviet Non-Aggression Agreement and of the

Secret Supplementary Protocol, failed. The Pact of Assistance which was

made on 25 August 1939 between Great Britain and Poland did not prevent

the outbreak of the war, but simply delayed it for a few days. I have no

intention of going into particulars of the diplomatic negotiations which

were conducted after the conclusion of the German-Soviet Agreement of 23

August 1939 to reach an agreement. One thing, however, can be said with

certainty: If the unilateral guarantee declaration of England of 31

March 1939 meant to influence the already stubborn Polish Government not

to accept the German offers, then an assistance pact with Great Britain

would tend to dampen Poland’s desire to negotiate. The failure of the

negotiations which were carried on between Germany and Poland are all

the less surprising when one bears in mind the testimony of the witness

Dahlerus before the Tribunal. Has not this witness confirmed that the

Polish Ambassador in Berlin, Lipski, declared on 31 August 1939 that he

was not interested in discussing the proposals of the German Government?

He based this negative attitude on the statement that in case of war a

revolution would break out in Germany and the Polish Army would march

toward Berlin.

Whatever the news might have been which induced the English Government

to conclude the treaty with Poland and which possibly intimated a rift

in the German-Italian alliance and symptoms of deterioration in the

German State structure—and here I refer to the testimonies of the

witnesses Dahlerus and Gisevius—the future was to prove that such ideas

were not based on any facts.

When on 1 September 1939 war broke out between Germany and Poland, it

was at first a question of a localized conflict between two European

states. But when Great Britain and France declared war on Germany on 3

September 1939, this conflict expanded into a European war, into a war

which as all modern wars between great powers tended from its very

beginning to develop into a world war because of inadequate

international organization and the complete collapse of the system of

collective security. This war was to bring immeasurable suffering to all

humanity, and when on 8 May 1945 the European war ended with Germany’s

unconditional surrender, it left behind a Europe in ruins. Adolf Hitler

did not live to see Germany’s collapse and its unconditional surrender.

Twenty-two former leaders of the National Socialist Germany stand before

the bar of the Tribunal in order to answer charges of having committed

crimes against peace, against the rules of warfare, and against humanity

in the execution of a common plan.

The so-called London Agreement of 8 August 1945, concluded between the

Government of Great Britain and Northern Ireland, the Government of the

United States of America, the provisional Government of the French

Republic, and the Government of the Union of Soviet Socialist Republics,

is the basis of this Trial. The present Tribunal was created pursuant to

this agreement, the composition, competence, and tasks of which were

established by the Charter of the International Military Tribunal, which

is a considerable part of the agreement concluded by the four

Governments on 8 August 1945.

The Charter of the International Military Tribunal, however, does not

only contain the regulations dealing with composition, competence, and

tasks; besides those, it includes—and these are the most important

parts of the Charter—the regulations of material-juridical contents.

This applies above all to Article 6 which contains the definitions of

Crimes against Peace, War Crimes, and Crimes against Humanity, with

their characteristic facts. Paragraph 3 of Article 6 of the Charter,

which enumerates the characteristics of the so-called conspiracy in

detail, has to be considered above all as the penal facts of the case.

Furthermore, Articles 7, 8, and 9 of the Charter are to be considered as

material-juridical regulations.

The explanations following were not approved by the Court. They are

substantially identical with the declaration made by the Defense at the

beginning of the Trial on 21 November, and I beg to refer thereto.

I continue on Page 40 with the last paragraph.

In the Indictment the Defendant Hess is charged with having supported

the seizure of power of the so-called Nazi conspirators, the

strengthening of their control over Germany, and furthermore the

furthering of the military, economic, and psychological preparations for

war. He is furthermore charged with having participated in the political

planning and preparation of wars of aggression and of wars in violation

of international treaties, agreements and assurances, and in the

preparation and planning of the foreign political schemes of the

so-called Nazi conspirators.

[sm type begins]The Prosecution finally asserts that he approved of,

directed, and participated in War Crimes and Crimes against Humanity as

enumerated in Counts Three and Four of the Indictment respectively.[sm

type ends]

THE PRESIDENT: This ought to be a convenient time to break off.

[_A recess was taken._]

DR. SEIDL: Your Honors: Count One of the Indictment refers to the

so-called Common Plan or Conspiracy according to which all the

defendants and various other persons are alleged to have participated

for a number of years prior to 8 May 1945 in the planning or execution

of a common plan as leaders, organizers, instigators, and collaborators.

This plan aimed at and brought about the commitment of crimes against

peace, of crimes against the laws of warfare and against humanity. It is

asserted that the defendants planned, prepared, unleashed and directed

wars of aggression, and committed war crimes and crimes against humanity

in the execution of this common plan.

While the Charter only knows three specifications of crimes—crimes

against peace, against the rules of warfare, and against humanity—the

Indictment contains four of them. In the Indictment, the Common Plan or

Conspiracy is made an individual and independent count of the charge,

without the Charter’s establishing sufficient reasons for this. It may

be left undecided whether conspiracy is considered a particular type of

crime according to Anglo-American law. In view of the fact that the

Charter rejects the use of both Anglo-American and continental law, but

has established its own standards of law, and these _sui generis_, only

the text and spirit of the Charter itself is decisive.

According, however, to what is expressly stated in Article 6, Paragraph

3 of the Charter, regarding the drafting or the execution of a plan for

the perpetration of a crime against peace, against the customs of war,

or against humanity, there surely cannot be an independent state of

criminality as stated in Count One of the Indictment under the heading

of Common Plan or Conspiracy, in all events, not on the basis of the

provisions of the Charter.

Since the Defendant Hess has been charged with all four Counts of the

Indictment it is necessary first to answer Count One of the Indictment:

The Indictment places at the center of the Common Plan or Conspiracy the

National Socialist German Workers’ Party of which Adolf Hitler had

become the leader in 1921, and which the Defendant Rudolf Hess also

joined as early as 1921. Even the Indictment does not, apparently, claim

that the Party program of the NSDAP was actually criminal in itself. It

appears all the less necessary to probe further into this question, as

in the subsequent routine of political life the Party program by no

means played the part which could probably be supposed. Moreover, the

appraisal of evidence has definitely revealed, as far as the position

and rise of the NSDAP is concerned, that up to 30 January 1933 the

National Socialist Party had the same status as other parties; that it

fought with the same legitimate means as other parties for the

attainment of its objectives; and that not least among the factors of

its rise is that Germany experienced in 1931-32, as a consequence of the

reparations policy of the victor powers in 1919, an economic and social

decline of uncommon magnitude; and that finally on 30 January 1933 the

Party, being the strongest, was entrusted by the provisions of the Reich

Constitution with the formation of the Government and its leader, Adolf

Hitler, was nominated Reich Chancellor.

During the so-called period of struggle the Party, like all other

parties, openly fought for the principles it represented, and the

Prosecution could not submit in evidence a single argument from which

the conclusion could be drawn that by using illegal means the Party and

its leaders had been participants in a common plan aiming at launching a

war of aggression. In fact, one need only keep in mind the political,

economic, and military condition of Germany in the first years after the

end of the first World War to recognize how improbable such a plan,

aiming at starting a war, is for that time. The conception put forward

by the Indictment reveals not only an entirely false idea of the

economic, political, and military conditions which Germany faced as a

consequence of the peace settlement by Versailles, but this conception

also discloses complete failure to appreciate the intrinsic virtue of

any policy.

When Adolf Hitler as the leader of the strongest party had been

appointed Reich Chancellor by Reich President Von Hindenburg on 30

January 1933, it was necessarily out of the question for him and his

Government, in which also other parties participated, to start drafting

a common plan aiming at a war of aggression, in complete misjudgment of

the political and, above all, economic conditions. The problems which

the German Reich Cabinet faced at that time resulted directly from the

fact that 7 million unemployed people in Germany had to be put to work.

As the witness Dr. Lammers stated, the elimination of economic and

social distress actually was the most important question at the first

cabinet session. There was no question at all of a common plan aiming at

launching a war of aggression and, in fact, it is inconceivable that in

the circumstances at that time even one member of the Government could

consider such an idea in any concrete shape. Furthermore, it has been

established through the testimony of Dr. Lammers and other witnesses

that the subject matter of the first cabinet meeting and the resolution

there passed are contained in the governmental declaration of 1 February

1933, made known to the German people in the form of a manifesto of the

German Government.

According to the Indictment, abrogation of the armaments restrictions

imposed on Germany through the Versailles Treaty was the first aim of

the conspiracy charged by the Prosecution. The final refusal of the

victor powers to disarm in their turn, according to their pledge,

contained in the treaty, at least accorded the German Reich the right to

obtain an equalization of armament through its own rearmament. This was

not done in secrecy by any means but in public, through the announcement

of the law on the reintroduction of general conscription on 16 March

1935. The Prosecution have not been able to show evidence for their

assertion that this law was connected with, and was part of, the common

plan aimed at bringing about a war of aggression. The exclusive purpose

of this law was rather to re-establish Germany’s right to equality at

least for that question, 16 years after the end of the first World War.

Here too, with regard to the details I also refer to the statements of

counsel for the Defendant Von Neurath.

In this connection brief reference is appropriate to a document which

the Prosecution produced, together with nine other documents, so-called

key documents, which first of all are intended to serve the purpose of

establishing the proof for existence of the common plan claimed in the

Indictment. This is the written record of a discussion at the Reich

Chancellery of 5 November 1937, Document Number 386-PS, Exhibit Number

USA-25. As is known to the Court, this is not a literal reproduction of

Adolf Hitler’s statements, but a report of Colonel Hossbach which was

drafted by the latter 5 days later, namely, on 10 November 1937. I have

no intention of entering any further into the contents of this document.

I refer here to the testimony given by the Defendants Göring and Raeder

and to the statements which other defendants’ counsels have made on this

question. I only mention the fact that when addressing the

Commanders-in-Chief and the Minister for Foreign Affairs at that time,

Hitler had a chronological plan in view which reveals no conformity

whatever with the subsequent events. In these circumstances, the

existence of a determined and well-outlined plan by Hitler himself even

seems very unlikely. Only one conclusion can with certainty be drawn

from the contents of this document: Namely, that until 5 November 1937

Hitler himself only thought of an amicable settlement of the territorial

problems raised by the Versailles Treaty. For this very reason,

therefore, there can have been no question of a common plan aiming at

the launching of a war of aggression—at least, up to this time.

This document, however, is worthy of notice for still another reason:

The report begins with the Führer’s assertion:

“... that the subject of today’s conference is of such

importance that its discussion in other states should belong to

the forum of the government cabinet. He—the Führer—however,

considering the importance of the matter, refrained from making

it the subject of discussion in a full session of the Reich

Cabinet.”

First of all, it can be left undecided in how far other questions from

1937 on were still dealt with by the Reich Cabinet in cabinet sessions,

or in the so-called circulation procedure, in the administrative

procedure or in the legislative way. The conclusion can, however, be

drawn with certainty from the presentation of evidence and in particular

from the witness Dr. Lammers’ statements and those of other witnesses,

and from a great number of documents submitted by the Prosecution

themselves, that, at the latest, from 5 November 1937 on, all problems

concerning the question of war and peace were no longer dealt with by

the Government as state authority, nor by another larger constant circle

of collaborators, but exclusively by Adolf Hitler himself. In all

probability this situation already existed in the year 1933. In this

connection I should like to draw attention to the statements of several

defendants in the witness box who, for example, were informed of the

reoccupation of the demilitarized zone of the Rhineland in the same way

as any other citizen, that is by means of the press and radio.

It is certain, however, that all important political and military

decisions were taken by Adolf Hitler alone after 5 November 1937, and

particularly after the so-called Fritsch crisis and the transformation

of the Reich War Ministry into the High Command of the Armed Forces

which it involved. According to the witness Dr. Lammers’ statements,

general conferences between the Reich Government, the Reich Party

Directorate and the generals never took place. According to the

statement of this witness and others, a closer connection never existed

between these three institutions. Indeed, not a single one of the

documents submitted by the Prosecution reveals anything which might

tempt us to admit the existence of an independent collaboration between

the Reich Government, the Reich Party Directorate and the Reich War

Ministry or afterward the High Command of the Armed Forces and the

Commanders-in-Chief of the branches of the Armed Forces and their chiefs

of staff. On the contrary, if a positive conclusion can really be drawn

from the presentation of evidence, it is that the power was concentrated

exclusively in the hands of Adolf Hitler, that the Reich Government, the

Reich Party Directorate and the Armed Forces received their orders and

directives only from him, that it was Hitler’s own policy to prevent a

working and independent combination of these institutions.

It can thus also be explained that in all questions of a political or

military nature, only those offices were included which had directly to

do with the task to be carried out. It is clear from all the documents

submitted by the Prosecution that, as a rule, at the conferences

presided over by Hitler, there was no question of conferences as are

perhaps customary in parliamentary democracies, but they were

essentially only concerned with the issuing of orders.

It is not necessary to examine in detail the statements in their

relation to Adolf Hitler made by nearly all the defendants, nor is it

necessary to assume an attitude toward the statements on the stand taken

by a whole series of other witnesses regarding Adolf Hitler’s position

in the German governmental system. One thing can be said with certainty:

at the latest, from 5 November 1937 on, Hitler’s position was so

commanding and his exclusive dealing with all decisive political and

military questions so firmly established that for this reason alone

there could be no grounds left for the supposition of a common plan.

The Defendant Rudolf Hess, though the Führer’s Deputy and the highest

political leader for Party matters, did not contribute to nor take part

in any of the conferences or any other important political or military

decisions characterized by the Prosecution as being essential to prove

the existence of a common plan, just as little as he contributed to or

took part in the conference of the Führer in the Reich Chancellery on 5

November 1937 (USA-25).

The same holds good, for example, for the next exhibit, USA-26, Document

Number 388-PS, submitted by the Prosecution. This is the top-secret Case

Green, Czechoslovakia. Without having to enter any further into the

details of this document, it can be said without more ado that it deals

with what is entirely the work of the General Staff, which was

originally intended only as a problem, and afterward elaborated into a

real operational plan. This operational plan was not put into action,

the documents referring to Case Green, on the contrary, conclude with

Directive Number 1 of the Führer and Supreme Commander of the Armed

Forces, which refers to the occupation of the Sudeten German areas

separated from Czechoslovakia by virtue of the Munich Agreement of 29

September 1938. Under these circumstances, it is superfluous to deal

further with the letter of 27 September 1938, of the Chief of the High

Command of the Armed Forces to the Führer’s Deputy which is also

contained in the documents for the Case Green and refers to the

mobilization measures which were to be taken without the issuing of a

mobilization order or a corresponding code word.

What I have already said concerning Exhibit Number USA-25 applies

similarly to Document Number L-79, Exhibit Number USA-27. This is

another so-called key document having as subject the instruction by the

Führer of the Commanders-in-Chief of the branches of the Armed Forces

and the chiefs of the general staffs in the new Reich Chancellery on 23

May 1939. Without intending to enter into the importance or the value of

this document as evidence—the Führer’s speech closed with the order to

set up a small research staff in the High Command of the Armed

Forces—this document shows clearly that no common plan in the shape

asserted by the Prosecution can have existed, especially not among the

defendants now facing their trial. Not a single minister or official of

civil administration took part in this conference at the Führer’s

headquarters—which in reality was not a conference but again an

instruction and issuance of orders.

The next three documents submitted by the Prosecution as key documents

refer to one and the same subject, namely, to Adolf Hitler’s speech

addressed to the Commanders-in-Chief of the Wehrmacht on 22 August 1939.

The following are the documents in question: Exhibit Number USA-28,

Document Number L-3; Exhibit Number USA-29, Document Number 798-PS; and

Exhibit Number USA-30, Document Number 1014-PS. I will not enter any

further into the value of these documents as evidence, although it is

obvious that these documents cannot be of equal value, and though it is

quite clear that even an approximate reproduction of Adolf Hitler’s

exposition is out of the question. None of these documents reveal their

authorship. Moreover, the statements differ considerably as far as

volume and contents are concerned.

Document Exhibit Number USA-29 seems to contain the most complete

reproduction of Hitler’s statements. And here again the conclusion is

most worthy of notice, a conclusion which throws some light upon the

situation at that time and the events which made it possible for Hitler

to make such a speech to the Commanders-in-Chief.

“I was convinced that Stalin would never accept the English

offer. Russia is not interested in the existence of Poland and

then Stalin knows it means the end of his regime, it being

immaterial whether his soldiers are victorious or vanquished.

Litvinov’s removal was decisive. I gradually changed our

attitude toward Russia. In connection with the commercial treaty

we engaged in political talks. Proposal for a nonaggression

pact. Then came a general proposition from Russia. Four days ago

I took a special step which caused Russia to signify her

willingness to conclude it, yesterday. Personal contact with

Stalin is established. Von Ribbentrop will conclude the treaty

the day after tomorrow. Poland is now in the position in which I

wanted her to be.”

Besides the Commanders-in-Chief, no minister or leader of the Party,

specifically not the Defendant Rudolf Hess, attended this speech of the

Führer. The same is true of Document Number 789-PS, Exhibit Number

USA-23. The subject of this document is a conference with the Führer on

23 November 1939. It appears from this document that here again only the

Commanders-in-Chief of the Armed Forces were assembled to receive the

Führer’s directions for the imminent operations in the West.

The next key document is Exhibit USA-31, Document Number 446-PS,

Directive Number 21 for “Case Barbarossa.” This was a question of a

directive by the Führer and Supreme Commander of the Armed Forces which

has an exclusively military character and was intended only for the

sphere of the Armed Forces. Any participation by civilian administrative

offices or of the Party, even in the person of the highest political

leader, namely, the Defendant Rudolf Hess, is excluded by the nature of

this directive.

It appears also from Document Number 2718-PS, Exhibit Number USA-32, the

subject of which is a file memo on the result of a conference on 2 May

1941 about Case Barbarossa, that neither the Deputy of the Führer nor

any other political leader took part in this conference.

The last so-called key document to be discussed is Exhibit Number

USA-33, Document Number 1881-PS, an account by Minister Schmidt of the

conversation between the Führer and the Japanese Foreign Minister

Matsuoka in Berlin on 4 April 1941. By the very nature of this

conference there could be as a matter of course no question of any

participation in it by the Defendant Rudolf Hess or by any other

political leader of the Party. However, something else appears from this

document, namely, the fact that it is not only false to talk about a

common plan within Germany aiming at a war of aggression but, even more

than this, that no kind of close political or military co-operation

existed between the so-called Axis Powers, in any case as far as the

relations between Germany and Japan are concerned.

What conclusion can now be drawn from the contents of these so-called

key documents which the Prosecution themselves have characterized as

particularly relevant to show the existence of a so-called common plan?

Whether these documents are relevant or not, it is established by these

notes that the Defendant Hess was not present at any of these

conferences or when these orders were issued. If, in appraising this

circumstance, one considers the further fact that the Defendant Rudolf

Hess was the Führer’s Deputy and therefore the highest political leader,

and that furthermore, after 1 September 1939, he was designated as the

Führer’s successor after the Defendant Hermann Göring, then there would

in fact seem to be no basis for the assumption of a common plan in the

form asserted by the Prosecution.

In this connection, may I refer to the report of the Chief of Staff of

the United States Army to the Secretary of War for the period from 1

July 1943 to 30 June 1945. I quote:

“... The available evidence shows that Hitler’s original intent

was to create by absorption of Germanic peoples in the areas

contiguous to Germany and by strengthening of her new frontiers,

a greater Reich which would dominate Europe. To this end, Hitler

pursued a policy of opportunism by which he succeeded in

occupying the Rhineland, Austria, and Czechoslovakia without

military opposition.

“No evidence has yet been found that the German High Command had

any over-all strategic plan. Although the High Command approved

Hitler’s policies in principle his impetuous strategy outran

German military capabilities and ultimately led to Germany’s

defeat. The history of the German High Command from 1938 on is

one of constant conflict of personalities in which military

judgment was increasingly subordinated to Hitler’s personal

dictates. The first clash occurred in 1938 and resulted in the

removal of Von Blomberg, Von Fritsch, and Beck, and of the last

effective conservative influence on German foreign policy.

“The campaigns in Poland, Norway, France, and the Low Countries

developed into serious dissensions between Hitler and the

General Staff as to details of execution of strategic plans. In

each case the General Staff favored the orthodox offensive,

Hitler an unorthodox attack, with objectives deep in enemy

territory. In each case Hitler’s views prevailed and the

astounding success of each succeeding campaign raised Hitler’s

military prestige to the point where his opinions were no longer

challenged. His military self-confidence became unassailable

after the victory in France, and he began to disparage the ideas

of his generals even in the presence of junior officers. Thus no

General Staff objection was expressed when Hitler made the fatal

decision to invade Soviet Russia.

“When Italy entered the war, Mussolini’s strategic aims

contemplated the expansion of his empire under the cloak of

German military success. Field Marshal Keitel reveals that

Italy’s declaration of war was contrary to her agreement with

Germany. Both Keitel and Jodl agree that it was undesired. From

the very beginning Italy was a burden on the German war

potential. Dependent upon Germany and German-occupied

territories for oil and coal, Italy was a constant source of

economic attrition. Mussolini’s unilateral action in attacking

Greece and Egypt forced the Germans into the Balkan and African

campaigns, resulting in overextension of the German armies which

subsequently became one of the principal factors in Germany’s

defeat.

“Nor is there evidence of close strategic co-ordination between

Germany and Japan. The German General Staff recognized that

Japan was bound by the neutrality pact with Russia, but hoped

that the Japanese would tie up strong British and American land,

sea, and air forces in the Far East.”

The statements which the Defendants Keitel and Jodl have made on the

witness stand are essentially the same as the statements of the American

Chief of Staff, so that further details on this point are superfluous.

It may be considered as proven that not even among the most intimate

circle of Adolf Hitler’s associates did a complete agreement exist on

the measures to be taken in the political and military field, whereby

the constitutionally established relationship of rank between the

officers of the Armed Forces and the head of the State and Supreme

Commander need not be considered. It is plain that the existence of a

common plan aiming at war cannot be accepted even in the case of that

group of persons for whom it first seemed most likely.

The second common goal of the conspiracy is declared by the Indictment

to be the appropriation of the territories which Germany had lost as a

result of the World War of 1914-18. The preamble to the Treaty of

Versailles provides for the possibility of a revision of the treaty.

Going beyond this, the demand for the reunion of Austria to the German

Reich and the annexation of the Sudeten German regions cannot in itself

be concluded to rest on the existence of a plan which was to have been

realized at the proper moment by the use of violence or by way of war.

As a matter of fact, by a disregard of the right of self-determination

of nations, these territories had already been prevented in the year

1919 from annexing themselves to the German Reich. On this question I

can refer to the statements I made at the beginning. Actually, the

annexation of Austria took place—this may be said as a result of the

presentation of evidence—under circumstances which cannot be described

as warlike and which permit us to conclude that the greater part of the

Austrian population approved the annexation. Concerning the Sudeten

German question, it suffices here to refer to the Munich Agreement

between Germany, Great Britain, France, and Italy by which the reunion

of the Sudeten Germans with the Reich was settled.

And finally, the third aim of the common plan was described as the

annexation of additional territories on the European continent which

should serve the conspirators as “Lebensraum.” The Indictment is not

clear in this point and lacks substance. But in fact the question of the

so-called “Lebensraum” is a problem which is completely independent of

the National Socialist ideology and is determined by the size of the

area and number of inhabitants. Every German Government had to and still

must deal with this question. If any argument by Hitler found a lasting

response in the German people, it was the demand made by him for an

appropriate share for the German people in the material wealth of the

world. This demand appeared to be all the more justified for the German

people as the relation between the area and the number of inhabitants is

very unfavorable compared to other countries.

[sm type begins]For instance, in the European part of Russia alone there

are 22.1 inhabitants per square kilometer; in the United States of

America the density of population is only 17 people; and France with a

population of 74.6 per square kilometer owns a territory of no less than

11.5 million square kilometers. England has 47 million inhabitants and

disposes of no less than 35 million square kilometers of ground.

Compared with these figures Germany had, on 1 September 1939, over 80

million subjects, a density of population of 140 and not even 600,000

square kilometers of territory. These figures speak for themselves. The

question of territory is closely related to the problem of a fair

distribution of the most important raw materials.[sm type ends]

I need not give detailed reasons on the inadequate distribution of the

most important sources of raw materials nor mention that certain raw

materials are completely monopolized. It is certain that the bitterness

about the unjust distribution of the material wealth of the world was

bound to increase in the German people, as not only was every reasonable

revision rejected, but moreover it was said by the opposite side in an

unmistakable manner that the nations were divided into two classes,

namely the “haves” and the “have-nots”. In fact, this classification

could be felt as nothing but scorn.

Moreover, even after 1933 there was no unanimous opinion about the

possible solutions concerning the removal of the difficulties resulting

from the need for space. Thus, for instance, the Defendant Rudolf Hess

belonged precisely to those who wanted to solve the problem of

“Lebensraum” by the acquisition of colonies, if possible. For instance,

in a big speech in Stettin, on 21 March 1936, he said:

“The most natural way to make more food available for the people

of Germany is to improve our living standard, that is, to

supplement it by having colonies. Therefore, the Führer by

stating his willingness to return to the League of Nations,

hoped that the question of colonies would be submitted to

examination. The Führer knows that a people without sufficient

area, without a sufficient food basis, a hungry people, must in

the long run become a center of unrest because of its instinct

of self-preservation against which even the most ingenious

statesman is powerless. For hunger is a natural instinct which

cannot be subdued either by warnings or by orders. Our desire

for colonies is therefore only the desire for a pacification of

Europe for a long time, and therefore the question of the

allocation of colonies to Germany is part of the Führer’s big

proposal of pacification...”

The world knows that the fulfillment of this demand as well as the

fulfillment of all other demands for revision was refused.

The connection between the unjust distribution of the material goods of

the world which contradicts all economic reason and the political

tensions which shake the peace of the world again and again, simply

cannot be overlooked.

[sm type begins]Generalissimo Stalin, Chairman of the Council of the

People’s Commissars of the USSR, stressed these facts clearly enough in

his long speech of 11 February 1946 on the occasion of the elections for

the Supreme Soviet, stating _inter alia_ as follows:[sm type ends]

[sm type begins]“It would be wrong to think that the second

World War was caused by chance or was the result of mistakes

made by various statesmen, although such mistakes had

undoubtedly been committed. In reality the war was an inevitable

result of the international economic and political forces

founded on modern monopolistic capitalism ... Perhaps we might

escape the catastrophes of war if there were a chance of

redistributing the raw materials among the countries according

to their economic weight by virtue of agreed and peaceful

decisions...” Somewhere else in his speech Stalin says:[sm type

ends]

[sm type begins]“This is the position regarding the question of

the origin and the character of the second World War. Now

everyone presumably recognizes that this war never was and never

could be a matter of chance in the life of the nations, that it

indeed changed into a war involving the nations and their

existence, and that for this reason it could not be a blitzkrieg

quickly running its course...”[sm type ends]