I shall now take up the charge of racial hatred.

Rosenberg’s opinions in regard to the race question were the result of

racial research of international scientists. Rosenberg repeatedly

asserts (I refer again to the opinion stated in Document Book 1, Volume

II) that the purpose of his racial political demands was not contempt of

race, but respect for it. I quote Page 70:

“The leading moral idea of an approach to world history based on

the laws of heredity belongs to our times and to our generation,

being in full accord with the true spirit of the modern eugenics

movement with regard to patriotism, that is, the upholding and

expansion of the spiritually, morally, intellectually, and

physically best hereditary forces for our fatherland: only in

this way can we preserve our institutions for all future times.”

These words embody the main theme of his demands, though their

originator was not Rosenberg, but Henry Fairfield Osborn, Professor at

Columbia University, who wrote them in discussion of the book by his

colleague in science, Madison Grant, _The Decline of the Great Race_.

This research, long before the existence of the Third Reich, led to

eugenic legislation in other countries, in particular to the American

Immigration Law of 26 May 1924, which was aimed at a strong reduction of

immigrants from southern and eastern Europe while favoring those from

the north and west of Europe.

I do not think I have to say that I am not hereby defending the murders

of those mentally diseased in Germany as an alleged eugenic measure.

With this measure, too, Rosenberg did not have the slightest connection.

For Rosenberg it was a question of the spiritual strengthening and

consolidation of the German nation, indeed of the Aryan race. He would

like to have his ideology considered in that light, above all _The Myth

of the 20th Century_. His preaching of the significance of race in

history did not call—I stress this again—for race contempt, but for

consideration and respect of race, and demanded the acknowledgment of

the racial idea only by the German people, not by other nations. He

considered the Aryan nations as the leading ones in history. And if in

doing so he underestimated the significance of other races, as for

instance the Semitic ones, he, in his praise of Aryan races, did not

think of the German nation alone, but of the European nations in

general. I refer to his speech in Rome of November 1932.

I am keeping within the framework of historical truth in pointing to the

fact that anti-Judaism is not an invention of National Socialism. For

thousands of years the Jewish question has been the minority problem of

the world. It has an irrational character which can be understood to

some extent only in connection with the Bible. Rosenberg was a convinced

anti-Semite, who in writing and speech gave expression to his

convictions and their foundations. I have already emphasized that even

such different personalities as Von Papen, Von Neurath, and Raeder are

still of the opinion that the predominance of the Jewish element in the

entire public life had reached such proportions that a change had to

come about in this respect. The concrete result of that predominance,

the fact that the Jews in Germany when attacked knew how to repay in

kind, sharpened the anti-Semitic fight before the accession to power.

I wanted to present to the Tribunal a selection of Jewish literary

attacks on the national feeling at that time, but the Tribunal ruled

that my application was irrelevant; as these writings were not

introduced as evidence I cannot speak about them. It is, however, an

injustice to Rosenberg to assert that blind hatred of the Jewish race

had goaded him into that controversy. He had before his eyes concrete

factual evidence of the disintegrating activities of Jews.

It appeared as if the Party program of placing Jews under a generous law

of aliens would be realized. It is true that Goebbels at that time

arranged a one-day boycotting of Jewish stores. Rosenberg, however, in

his speech of 28 June 1933, the anniversary of the Versailles Treaty, in

the assembly hall of the Reichstag in the Kroll Opera House, declared

that it was no longer necessary that in the capital of the Reich 74

percent of all lawyers should be Jews, and that 80 to 90 percent of the

physicians in Berlin hospitals should be Jewish; about 30 percent of

Jewish lawyers in Berlin would suffice amply. In his speech at the Party

Rally in September 1933 Rosenberg stated in addition, and I quote:

“In the most chivalrous way, the German Government has excluded

from the percentage stipulations those Jews who have fought for

Germany at the front, or who have lost a son or a father in the

war” (Document Book 1, Page 153a).

In his speech at the Kroll Opera House Rosenberg gave the reason for

this measure, saying that there was no intention thereby to discriminate

against a whole people, but that it was necessary for our younger German

generation, who for years had had to starve or beg, now to be able to

obtain bread and work too. But despite his strong opposition to the Jews

he did not want the “extermination” of Jewry, but advocated as the

nearest aim the political expatriation of Jews, that is, through

classifying them by law as aliens and giving them protection as such. In

addition, he granted to the Jews a percentage access to nonpolitical

professions, which still by far exceeded the actual percentage of Jews

in the German population. Of course, his final aim was the total

emigration of the Jews from Aryan nations. He had no understanding and

appreciation of how great a loss to the Aryan nations themselves such an

emigration would be in cultural, economic, and political respects. But

one will have to admit that he believed that such an emigration would

prove useful for the Jews themselves, first, because they would be set

free from all anti-Semitic attacks, and also, because in their own

settlement area they might live unhampered and according to their own

ways.

The dreadful development which the Jewish question took under Hitler,

which he justified as being a reaction against the policy pursued by

emigrants, was never more regretted by anyone than by Rosenberg himself,

who blames himself for not having protested against the attitude of

Hitler, Himmler, and Goebbels as firmly as he protested against Koch’s

actions in the Ukraine. Nor does Rosenberg hesitate to admit that his

suggestion to Hitler to shoot 100 Jews instead of 100 Frenchmen after

the recurring murders of German soldiers was an injustice born of a

momentary feeling—despite his belief in its formal

admissibility—because, from the purely human standpoint, the real basis

for such a suggestion was lacking, namely, the active participation of

those Jews.

I have returned to this case again, as in my opinion it is the only

instance where Rosenberg desired retribution by the death of Jews. On

the other hand, one must insist with the greatest emphasis that there is

no proof of Rosenberg’s having been aware of the extermination of five

million Jews. The Prosecution accuses him of making preparations for an

anti-Semitic congress as late as 1944, which did not take place only

because of the course of the war. What point could such a congress have

had, had Rosenberg known that the majority of the Jews in Europe had

been exterminated already?

Rosenberg had no faith in democracy, because in Germany it led to a

splitting up into numerous parties and a constant change of government,

and finally made the formation of an efficient government impossible.

Another reason for his not having faith in democracy was that non-German

democratic powers did not stand by their democratic principles in

certain cases where they might have been of benefit to Germany, for

instance in 1919, when Austria was willing to be incorporated in

Germany, and later on at the plebiscite in Upper Silesia. But Rosenberg

did not for that reason turn toward tyranny. In connection with

Paragraph 25 of the Party Program he said in his comments, on Page 46:

“This central power”—referring in this case to the Führer’s

power—“should have as advisers representatives of the people as

well as those councils which had evolved in the course of time”

(Document Book 3, Page 6).

And in his speech in Marienburg on 30 April 1934 on the state of the

German Order, he said that the National Socialist State must be “a

monarchy on a republican foundation.” I quote:

“From that standpoint the State will not become a deified end in

itself, neither will its leader become a Caesar, a God, or a

deputy of God” (Document Book 1, Page 131).

In his speech on German law of 18 December 1934, Rosenberg stressed:

“In our eyes the Führer is never a tyrannical commander” (Document Book

1, Page 135). Only in such terms was a protest against the development

of tyranny possible.

The development passed over Rosenberg and degenerated. Rosenberg himself

learned this while acting as Minister for the East. Rosenberg was an

idealist, but he was not the unscrupulous man who inspired the State and

the Führer to commit crimes. I believe, therefore, that he should not be

included in Mr. Justice Jackson’s Indictment (Page 8), where it says

that Rosenberg belonged to those men in Germany who have been “the very

symbols of race hatred, of the rule of terror and violence, of arrogance

and cruel power.”

In looking through Rosenberg’s writings one finds, on the contrary,

statements and expressions which give a decided impression of tolerance.

He says, for example, in his Myth, of the national Church which he

aspired to:

“The German Church cannot pronounce compulsory dogmas which

every one of its followers is compelled to believe at the very

risk of losing his everlasting salvation.”

In his speech on ideology and dogma at the University of

Halle-Wittenberg, he called for tolerance toward all denominations with

a demand for “inner respect for every genuine denomination.” In his

speech on German intellectual freedom of 6 July 1935 he also spoke up

for the freedom of conscience. No document was presented which contained

a request by Rosenberg for criminal persecution of one of his numerous

ideological opponents, although he might easily have been prompted to do

so by their sharp attacks on his opinions.

Further, the Prosecution accused him of promoting militarism. Rosenberg

was indeed an admirer of the soldier’s profession and a soldierly

attitude toward life, but he also admired the peasant’s standards as the

basis of the national character. He advocated the creation of a people’s

army, both as the outward expression of Germany’s capacity as a

political ally and for the purpose of training and educating the people

at home. However, he denies having contemplated world conquest. On this

point I can refer to his speech on Germany’s Position in the World of 30

October 1933. There he offered peace to Russia on the occasion of the

German withdrawal from the League of Nations (Document Book 1, Page

147). I shall quote this passage, for it also proves that National

Socialism did not desire to interfere in the affairs of other countries:

“We are ready at any time to maintain absolutely correct

relations with Soviet Russia, because naturally we do not

necessarily want to modify an ideology in the field of foreign

policy and foreign relations.”

In the same speech he emphasizes that the avowal of an ideology he

describes as racial science is “not meant to be an expression of racial

hatred, but an expression of racial respect” (_Blood and Honor_, Page

377).

Mr. Justice Jackson called Rosenberg’s nationalism a “wild” one.

Rosenberg was passionate, but he wanted thereby to overcome class

conflict in the nation, which threatened its existence. For a clearer

understanding of the facts it may also be said ...

THE PRESIDENT: Dr. Thoma, the Tribunal would like you to finish your

speech before lunch, if you could possibly summarize some parts of it. I

don’t know whether that is possible.

DR. THOMA: I shall try to do that, Mr. President.

I once more refer to Mr. Jackson’s statement that Rosenberg’s

nationalism, or militarism, was “wild.” In this connection I should like

to refer only to the fact that such nationalism was a compensatory

symptom, which is easily found in a conquered country.

The accusation dealing with anti-Christianity and neopaganism is

something which I have already mentioned, and I should just like to

refer to it. I have dealt with the term “master race,” mentioning the

fact that these words are not found in Rosenberg’s works at all.

Concerning the Party Program, I stated that Rosenberg did not draft it,

but only supplied a commentary upon it, and that it is not a question of

what is contained in the Party Program, but rather with what its effect

was. I referred to the witness Funk, who stated that his first action

and his first program as Minister of Economics had no reference at all

to the Party Program, but was simply democratic and liberal.

The Party Program was adhered to neither in a positive nor a negative

sense. The government was carried on just as in other states, on the

basis of general necessity.

May it please the Tribunal, I shall turn to the charge that Rosenberg

was the delegate of the Führer for the supervision of all education and

spiritual ideology within the NSDAP. During the reading of the affidavit

by Dr. Eppe I pointed to the fact that Rosenberg, as head of this

office, had no executive power, and that Rosenberg interpreted the

duties of his office in such a way that he published magazines on all

cultural and scientific topics, especially the _NS Monatshefte_, the

polemic political contents of which, after 1933, were more and more

superseded by historical, scientific, and cultural subjects. On the

basis of all the literature at our disposal it is not in accordance with

the facts that Rosenberg interpreted his position as one from which to

sow hatred. After 1933 he mainly endeavored to intensify and promote new

definite talent. I have said in addition that this nonpolitical office

concentrated its efforts on exercising a regulating and guiding

influence on all noble and cultural values which manifested themselves.

May it please the Tribunal, I shall now turn to the topic: “Morality as

a basis of the Indictment.” I should like to ask the High Tribunal, even

though I do not propose to read this passage, to consider it as having

been presented by me. I refer to Pages 82a through 82g, and I should

like to ask the High Tribunal for permission not to read this matter and

yet to have this matter considered as having been submitted in its

entirety and read into the record. I shall now sum up ...

THE PRESIDENT: Dr. Thoma, all the speech will be taken as being

presented to the Tribunal. By your summarizing it, you are not excluding

it from the record of the Tribunal. The Tribunal will take note of it

all.

DR. THOMA: Thank you, Mr. President.

I shall now sum up in conclusion, and I should like to point out the

following:

[sm type begins]... that he is to be understood as a phenomenon of

psychic compensation, as often appears in a conquered people. In

addition, Germany, situated in the middle of Europe, was always exposed

to so many political and military dangers that military circles in

Germany, particularly after the entrance into the Ruhr in 1923, were

necessarily particularly sensitive on national questions. As a German

Balt he was brought up in a national way of feeling that led him to

expect more of self-assertion and mobilization for defense than of the

disappointments resulting from the international negotiations carried on

up to that time. He was always ready for an understanding based on equal

representation (Document Number 003-PS, Exhibit Number USA-603).[sm type

ends]

[sm type begins]Rosenberg has been further reproached with

anti-Christianity and neopaganism. It is true that this reproach was not

brought against his theory, but in connection with the persecution of

the Christian religion in all its forms which later resulted. Rosenberg

was an opponent of Christianity in its—as he sees them—present

historical forms, just as he was of Jewry. In place of Christianity he

strove for an idealistically, racially, and ethnically, conditioned

religion, an emotional religion of blood and soil.[sm type ends]

[sm type begins]He thereby attacked both Christianity and Jewry

theoretically, and hoped that the Christian Churches would gradually

become extinct among the German people; yet it will always have to be

admitted that Rosenberg staged no violent persecution. He carried on

this battle with intellectual weapons. Here, too, since he expected

freedom of conscience for himself, he advocated freedom of conscience

for others, and pointed out that with his _Myth_ and his new

religiousness he did not wish to confuse Church believers but to create

new spiritual ties for those, too, who had ceased to be believers in the

Church.[sm type ends]

[sm type begins]The term “master race,” to my knowledge, does not appear

in Rosenberg’s writings, nor does it fit into Rosenberg’s ideology,

which proceeds from the race as a general law. Therefore, Rosenberg

speaks of the Nordic, Mediterranean, Dinaric race, in relation to races

which are biologically different, not in the sense of an arrogant

judgment as to value, but in the sense of racial facts, in the sense of

honoring the entire human race of Europe.[sm type ends]

[sm type begins]As far as the Party Program is concerned, despite the

assertions of the Prosecution, it was not he, Rosenberg, who designed

it. Like so many other things, the meaning and action of the Party

Program has also been overestimated and exaggerated. It was one of the

first deeds of the National Socialist Government to design a

reconstruction program, of which the Defendant Funk said that almost any

other liberal or democratic government could accept it also. In place of

breaking up capital investment, the reinstatement of a sound money and

credit system was demanded. I could go on quoting a number of examples,

for instance the program of aliens’ status for Jews, which was not

carried out. The Party Program was never adhered to subsequently either

in the positive or the negative sense. Rules were simply enacted as in

other states, too, based on the necessities of the moment.[sm type ends]

[sm type begins]The entire ideology of the journalist and author

Rosenberg becomes intensified and is rendered more menacing to peace,

according to the Prosecution, by the fact that Rosenberg was nominated

the deputy of the Führer for the supervision of the entire intellectual

and ideological education of the NSDAP. How did this assignment come

about and what were the circumstances concerning it? On the basis of his

previous experience in the educational work of the Party, its

organizational leader asked Rosenberg whether he would not undertake a

common intellectual project. Rosenberg answered in the affirmative, if

the Führer so desired. Thereupon, on 24 January 1934, the Führer

appointed him chief of that office. It was a Party office and had

nothing to do with the schools, as is erroneously assumed. The office

had no right to issue directives to Reich offices; even any

correspondence with them had to be sent via the Party Chancellery.

Neither did it have any right to suppress books, et cetera. Even a right

to issue directives to the Party was not granted, the more so since the

branch school directors were also subordinated to the Reich leaders (SA,

SS, HJ). Therefore, from the very beginning Rosenberg did not consider

his work as representing the tasks of an intellectual police, but as an

executive and unifying work, as the central point of the expression and

realization of the factual and personal power of conviction and

initiative.[sm type ends]

[sm type begins]He had no offices in the various Gaue, not even

individual representatives; he agreed to the Gau education leader as his

deputy at the same time, in order to maintain a connection with

practical education in the country.[sm type ends]

[sm type begins]The office had many things to review in the course of

time, yet it remained limited in extent. It became subdivided into

various spheres of work; teaching and education proper, cultivation of

literature, the arts, cultural and general problems. About twice a year,

for the purpose of comparing tuition experiences, Rosenberg called

together the so-called “Working Community for the Instruction of the

Entire Movement.”[sm type ends]

[sm type begins]In it were represented the educational deputies of the

political leadership and its various subdivisions. They reported on

their work and expressed their suggestions. On the basis of these

suggestions, Rosenberg frequently lectured in the Gaue on appropriate

topics, and likewise induced his collaborators to handle such questions

in all the subdivisions. These are the two educational meetings which

the Prosecution mentioned by reason of their alleged “broad influence on

the community schools” as an indication of criminal activity (Volume V,

Page 48). This generally executive work found expression particularly in

the periodicals of the offices of Rosenberg’s department; primarily in

the N. S. _Monatshefte_, which after 1933 acquired a gradually

increasing polemical political content in the interest of handling

historical, cultural, and scientific topics. _Die Kunst im Deutschen

Reich_ achieved special significance by simply offering the most

beautiful examples in the way of contemporary plastic art, excellently

presented without discussion. The _Bücher Kunde_ offered a monthly cross

section of writings and literary contributions. The monthly periodical

_Musik_ devoted itself above all to serious art, the cultivation of the

German classics, and without any pettiness toward new creations. The

journal _Germanisches Erbe_ published contributions on research in early

history, the _Deutsche Volkskunde_ was devoted to games, folk songs,

peasant customs. _Deutsche Dramaturgie_ described the ambitions and

problems of the contemporary theater.[sm type ends]

[sm type begins]Besides this there were special exhibitions of the

lifework of great artists in Rosenberg’s exhibition building in Berlin,

and book exhibitions in various cities.[sm type ends]

[sm type begins]It is simply not true if the Prosecution declares that

Rosenberg used his assignment to disseminate hatred. The essence of his

entire work after 1933 went toward a profounder and large-scale

promotion of new positive talents.[sm type ends]

[sm type begins]Political polemics in these seven years had almost

entirely disappeared. But for the difficulties in the language, one

would find, in glancing through the journals and speeches, an honest

great effort, whether Rosenberg spoke to youth or to the technicians,

teachers, lawyers, workers, professors, women, at meetings of

historians, or before the Northern Society.[sm type ends]

[sm type begins]The heads of his offices were instrumental in publishing

and promoting valuable works of art: Classics of music, history of the

German ancestry, world political libraries, development of German

peasantry, and others. In the present impassioned days one is not

interested to know of this side of somebody’s lifework, and therefore I

only touch upon it; but I wish to emphasize that it was just that which

seemed to Rosenberg, since 1933, to constitute the essential part of his

work, and similarly he intended to devote himself in his old age

entirely to scientific-cultural research and teaching. I shall permit

myself a few more words about this later.[sm type ends]

[sm type begins]Contrary to some opinions which at first appeared

necessary, although some Individuals may perhaps have looked upon them

as rather petty, Rosenberg advocated at the universities of Munich and

Halle the right of examining new problems of our times as well as the

independence of scientific thinking. He declared that we would have to

“feel that we were the intellectual brothers of all those who once in

mediaeval times raised the flag for this free research” (Document Book

1, Page 134). Against certain attempts to identify certain scientific

physical theories with the Party, he protested in an official

declaration which rejected this danger of hairsplitting. “It is not the

task of the National Socialist movement,” he said in a speech about

Copernicus and Kant on 19 February 1939, “to make any regulations for

research other than necessarily connected with our philosophy of life”

(Document Book 1, Page 173).[sm type ends]

[sm type begins]When a certain trend toward mass statistics, peak

figures for the number of visitors, et cetera, developed in the

otherwise desirable progress achieved by the German Labor Front, he made

a determined stand in favor of emphasis on the personal element. He

rejected this idea of “mass production” in an address to youth with the

words: “One cannot receive art and culture like mass-produced,

ready-made clothes in a department store” (Document Book 1, Page 155).

Today poisoning of this youth is imputed to him, but on the contrary he

asked (Document Book 1, Page 161) for comprehension in teaching on the

part of everybody to whose care young people are entrusted, and he

decidedly rejected any orders in the intellectual field.[sm type ends]

[sm type begins]With regard to any form of collectivism, as has already

been mentioned, he impressed on youth the importance of comradeship, but

emphasized the personal element and the right to solitude. When on the

grounds of certain occurrences many voices criticized the teaching

class, Rosenberg began to fear lest general discrimination against the

profession might develop. He took a stand against this danger in two

speeches: at a great meeting in October 1934 at Leipzig, and later at

the conference of the N.S. Teacher’s League at Bayreuth (Document Book

1, Page 162), where he declared that the National Socialist movement

would step in and see that the teaching class be respected, just as it

would have done for all other professions.[sm type ends]

[sm type begins]By these brief allusions I mean to say that Rosenberg,

as a regulating and leading intellectual force, advocated high cultural

values and the rights of personality in a manner rendered convincing by

his attitude and motives. Throughout the whole Party it was no secret

that this activity involved profound opposition to the Propaganda

Minister. Rosenberg from the very beginning considered it a calamity

that culture and propaganda should be associated in one ministry. For

him art was a creed, propaganda a form of tactics.[sm type ends]

[sm type begins]As things at first could not be changed, Rosenberg

emphasized his attitude to the outside world by not attending a single

annual meeting of the Reich Chamber of Culture, in the firm hope that at

some later day another conception would win through.[sm type ends]

[sm type begins]Many things Rosenberg said did not fail to have their

effect and certainly prevented some harmful actions, but more, and

probably the most important, did not succeed because the legislative and

executive powers in the State lay in quite different hands, and these

finally, due to the war and in spite of the will to sacrifice, brought

about not the development of the National Socialist idea but its

degeneration. Moreover, this happened to an extent which Rosenberg could

not foresee.[sm type ends]

[sm type begins]It was seen that the foundations for the spiritual

education of the Party were not sufficient, and round about 1935 there

developed a wish to create a serious place for research and study. This

desire led to the idea later known as “high school,” which was intended

to take the form of an academy. Rosenberg considered the creation of

this academy as a task for his old age. Since it would have taken years

to provide tuition material and to choose suitable personnel, the Führer

authorized Rosenberg at the end of January 1940 to carry on the

preparatory work he had started on official orders. Thus, contrary to

what the Prosecution asserts, (Volume V, Page 48) the “high school” had

nothing to do with Rosenberg’s “Einsatzstab,” which was not even planned

at that time.[sm type ends]

[sm type begins]Mr. Justice Jackson, in his fundamental speech of 21

November 1945, expressed the desire, that this Trial should appear to

posterity as the fulfillment of the human yearning for justice. Mr.

Jackson furthermore declared that he had brought the Indictment because

of conduct which according to its plan and intention meant injustice

from the moral and the legal standpoint. In his report of 7 June 1945

Mr. Justice Jackson outlined that by this Trial those actions are to be

punished which since time immemorial have been considered as crimes and

are designated as such in any civilized legislation. The most difficult

problem, the greatest task, and the most tremendous responsibility for

the Tribunal lies concentrated in this single point: What is justice in

this Trial?[sm type ends]

[sm type begins]We have no code of laws, we have, however astonishing it

may sound, not even any fixed moral concepts for the relations of

nations among each other in peace and war. Therefore the Prosecution had

to be satisfied with the general terms “civilized conception of

justice,” “traditional conception of legality,” “conception of legality

built on sound common sense with regard to justice”; they have spoken of

“human and divine laws” (Volume VII, Page 78); the Hague Land Warfare

Rules refer in their preamble to the “laws of humanity” and to the

“demands of the public conscience.”[sm type ends]

[sm type begins]The basis of justice is without any doubt a morality,

the moral law; thus if we wish to determine what injustice among nations

is, what is contrary to the idea of justice among nations according to

international law, then we must broach the question of morality. The

answer will be: everything is moral which our conscience accepts as

being moral.[sm type ends]

[sm type begins]But what is the original cause of moral discrimination:

desire and happiness of the individual; or progress, improvement,

preservation of the life of an individual, of a people, of humanity; or

virtue; or duty?[sm type ends]

[sm type begins]How can we recognize what is good and what is bad? By

intuition, or by experience, or by authoritarian and religious

education? What is good and bad in the actions of a State, what is good

and bad in the mutual relationship between nations? Does a difference

exist between national morals and private morals? Can the State commit

any injustice at all? From Saint Augustine through Machiavelli and

Nietzsche to Hegel, Tolstoy, and the pacifist thinkers, yearning

humanity has received the most different answers to this question.[sm

type ends]

[sm type begins]And furthermore: Have fixed moral laws existed since

time immemorial or have changes in the ideals of nations brought about

changes in morals, too? What is the situation with regard to this

today?[sm type ends]

[sm type begins]I have already said once that, according to my opinion,

war itself is a brutality and a great crime of humanity against itself

and the laws of life. An essentially different question is whether this

conviction has already entered the conscience of humanity. We consider

ourselves far above the moral level of former nations and ages, and are,

for example, surprised to find that the highest representatives of Greek

morality such as Plato and Aristotle consider abandoning of children and

slavery to be absolutely right, or that in certain parts of East Africa

even today only robbery and murder give a man the stamp of heroism; on

the other hand it is absolutely compatible with our present-day idea of

morality that human beings are killed by hundreds of thousands in war

and that the products of human welfare and culture are wantonly

destroyed. Neither in a moral nor in a legal sense is this considered as

unjust.[sm type ends]

[sm type begins]If the Prosecution now charges the defendant with a

wrong in the moral or legal sense, it is its duty to present the

prerequisites for a punishment of the defendant, in such a way as to

convince the Court, for, according to the hitherto existing moral

concepts of nations, killing in war is not murder within the meaning of

the penal codes of the individual countries, and the measures of a

sovereign country in war or in peace have never been interpreted as an

offense within the meaning of these penal codes or as punishable and

immoral acts by the legal convictions of civilized humanity.

Christianity teaches us to return good for evil and to love one’s

enemies; this has been a world religion for 2,000 years, but many people

today will laugh outright if one should venture to claim certain

principles for the relations of nations between each other. In the face

of the yearning of humanity the Prosecution now desires to aid its

progress, even if only step by step, in this direction; it seeks to

achieve the end that “unequivocal rules” shall emerge from this Trial;

its mistake however, is that it wants to explain “traditional opinions

of justice” and civil criminal laws as the contents of a public

conscience which hardly exists any longer, compliance with which cannot

in any case be demanded retroactively of the defendants.[sm type ends]

[sm type begins]It is certainly very true that a profound change is

commencing today in the moral thinking of humanity, a regeneration of

the moral law of nations, and that this Trial before the High Tribunal

marks the beginning of this new era. However, it appears to me very

doubtful whether it is proper to impress a new kind of justice upon the

conscience of mankind by making an example of the defendants.[sm type

ends]

[sm type begins]It is easy to speak of human and divine laws, or of the

demands of public conscience, but we become greatly embarrassed for an

answer to the question: What is the substance and content of private

morality, when is an act immoral according to private morality? In their

concern over what is good or evil, some rely on religion, others have

been taught wisdom by experience and education, still others find an

explanation in the philosophers.[sm type ends]

[sm type begins]The State has in recent times taken up the moral

education of its citizens in increasing measure, not only through

criminal laws but also through “political education” or whatever other

name is used for it. Not only did the National Socialist State have a

great advantage here over the liberal states, but so do all totalitarian

states of the world: They have hammered moral principles into the minds

of their citizens, both of a private and public nature. They have

proclaimed moral ultimate values, such as fidelity, honor, and

obedience. By this means reflection concerning private and public morals

is made easier for the individual citizens and they are obliged by force

to uphold these ultimate values in the prescribed form. The German

people, who had become tired and resigned as a result of continual

warlike disputes and religious upheavals, willingly followed National

Socialism, even when the latter’s ethics were exalted to a faith; it

took this leap into the unknown, not with the idea of being taught by

this means to deceive people, to enslave them, to rob them, to kill

them, to torture them (see Volume VII, Page 78), but because it was in

search of moral elevation, an authoritative moral leadership in its

material and spiritual distress, and because nothing else was offered to

it, especially not by a liberal world conscience which did not know how

to make the fundamental principle of humanity a reality. The National

Socialist ethical conceptions were taught to Germans as _summum bonum_,

as the highest idea, and they believed the idea to be moral and good.

Then National Socialism came into conflict not only with ideologies, but

also with the plans of power of other states, because it could not find

the formula which would include not only perfection and life for

Germany, but also the interests and justice for all nations of the

world. To try to construe out of such inadequacy of a national ethical

idea, however inefficient, a punishable action, a conspiracy, is not

admissible in my opinion, if only because uniformly acknowledged

national morality has not yet developed, and unlimited national egotism

has not yet been dethroned and is still considered the highest moral

instance of the State.[sm type ends]

[sm type begins]It might be objected that the Germans should only have

followed the teachings of their great philosopher Kant in thought and

action, according to his “categorical imperative”: Act in such a way

that the maxim of your will could always serve as a principle for

general legislation! Then they would and should have recognized the

moral instability of National Socialist teachings. To that I can answer

with the words of the great English philosopher, John Locke, who says on

the question of what is good or evil in his _Essay Concerning Human

Understanding_; Book 2, Chapter XXVIII, Paragraph 6: “God has ordained

it in such a manner that certain activities produce general happiness,

preserve society, and even reward the doer. Man has discovered this, and

has established it as a practical rule. With that rule are connected

certain rewards and punishments either by God Himself (reward and

punishment of infinite size and duration in the Beyond) or by mortals

(legal penalties, social approval or condemnation, loss of honor); good

and evil which are not the natural effect and results of the actions

themselves. Then men look to those rules or laws, be they divine or made

by the State, and the laws of usage or of private opinion, and measure

their actions by them. They judge the moral value of their actions

according to whether they conform with the rules or not. Moral good or

evil therefore amounts only to conforming or not conforming our action

with a law which by the will and power of the legislator determines for

us what is good and evil.”[sm type ends]

[sm type begins]Therefore good and evil has been and still is today what

the authorities want or do not want. Christianity for centuries has been

preaching not only to Germans but to all nations of the world: “Let

every man be subject to the authority above him.” And the authorities do

not move beyond conscience and morality so long as the expansion of

national egotism is not opposed by clear laws and commandments and

irrefutable legal convictions.[sm type ends]

[sm type begins]The highest good, _summum bonum_, in international

morals of nations has not yet been mandatorily codified. There does not

exist any authoritative idea for the community of nations. Instead of

discussions on individual ethics and individual criminality, the

Prosecution should have submitted its accepted principles and criteria

as international common law, which was not done.[sm type ends]

[sm type begins]Therefore, with regard to the standpoint of the

prosecuting authorities as to the personal responsibility of acting

statesmen, I feel impelled to look upon this as a totally new philosophy

and one which is very dangerous in its consequences.[sm type ends]

[sm type begins]Apart from the misdeeds of the individual, which do not

satisfy even the minimum of moral conceptions, the ethical conceptions

of National Socialism and the actions resulting from them, insofar as

they are an expression of National Socialist ethics, cannot be subjected

to the judgment of a human forum, since they are an event of world

history. And the fate and guilt of the Defendant Rosenberg likewise

cannot be judged conclusively within the framework of this Trial. As to

the question of deciding the criminal guilt of the defendant, that is

the hard task of the High Tribunal; but his potential historical guilt

cannot and will not be judged by the Tribunal. Rosenberg, like all

persons of historical importance, has acted according to his character

and spirit, thereby perhaps becoming guilty in the eyes of history. The

more freedom of action a given personality has in his will, the clearer

the importance of conditions and the one-sidedness of all human

activities becomes, and out of an insignificant guilt there grows,

particularly in historical personalities, an enormous power which

decides the fate of many, and which remains a gloomy foreboding for

whoever lets it loose.[sm type ends]

[sm type begins]Goethe once said: “The doer never has a conscience; no

one feels his conscience but the observer.” But this maxim can never

mean that a person must not move and act to the best of his knowledge

and conscience, and particularly for his country’s sake. And we all know

that in reality nobody is capable of attaining the good he is striving

for. Just as his knowledge, so will his actions always be incomplete:

Any action we accomplish as free beings is an infringement on the

operating forces of the universe, which we are never able to assess.[sm

type ends]

Rosenberg was caught up in the destiny of his nation in a period of

severe foreign political oppression and internal dissension. He

struggled for cultural purity, social justice, and national dignity, and

rejected vehemently all elements which did not admit these high values

or consciously attacked them in an irreverent manner. With respect to

foreign policy he stood for an agreement between the four central powers

of the European continent, in full realization of the grave consequences

of a lost war. He acted in all loyalty and respect toward a personality

who appeared to give political shape and increasing power to his ideals.

After the political victory at home, Rosenberg proposed that the

polemics and other aspects of the period of struggle be subdued. He

stood for a chivalrous solution of the existing Jewish problem, for

spiritual and cultural instruction of the Party on a high plane and,

contrary to the statements of the Prosecution, he opposed any form of

religious persecution. He can hardly be reproached for emphasizing a

definite religious-philosophical conviction of his own.

The practical application of many of his views was practiced to an

increasing degree by authoritative agencies of the Party, although later

they were disregarded, especially after the outbreak of the war.

Finally, as has been discovered now, they were often turned into the

opposite of what Rosenberg fought for.

Until 17 July 1941 Rosenberg was excluded from participation in any

national legislation. Considered from the point of view of personal

responsibility, all his speeches and writings up to that time come

within the scope of unofficial journalistic activity which every

politician and writer must admittedly be free to engage in—a freedom

which the Tribunal has fundamentally acknowledged with regard to all

utterances by the statesmen of other countries during the unofficial

period of their career. It seems to be all the more significant that

Rosenberg as a private citizen did not call for war or for the

commission of any inhuman or violent acts.

As Minister for the East he advocated a generous solution in accordance

with the understandable national and cultural aspirations of the eastern

European peoples. He fought for this concept as long as there were any

prospects for its realization. Ultimately realizing that Hitler refused

to be persuaded, he requested his dismissal. The fact that Rosenberg

could not prevent many outrages from happening in the East cannot be

charged against him in the criminal sense. Neither the Armed Forces nor

the Police nor the Allocation of Labor were subject to his authority.

Whenever injustices or excesses came to his knowledge, he did everything

he could to counteract them.

For almost a whole year, Rosenberg endeavored to keep labor recruiting

on a voluntary basis. Later, when several age groups were drafted, he

protested against every abuse by executive agencies and always demanded

redress. Quite apart from the legitimate requirements of the occupation

power, his labor legislation for the Eastern Territories was necessary

for the establishment of order and the repression of arbitrary measures

as well as of dangerous idleness, increasing sabotage, and the growing

number of murders. There was a war on and it was a war area, not a

postarmistice period, much less one following final capitulation.

So far as he was informed of things and commanded any influence,

Rosenberg fought for his convictions. The fact that adverse powers

became stronger than he was cannot be brought up as a charge against

him. One cannot punish offenses, and at the same time punish those who

revolted against them. In view of the terrible extermination orders

which have now been disclosed, it is certainly possible to raise the

point whether Rosenberg could not have exerted much stronger opposition.

To expect this would, however, suppose an earlier knowledge of things

which he only learned about after the collapse. Should he be charged

with any carelessness it must not be forgotten that he felt it to be his

duty to serve the Reich engaged in the struggle for its existence, and

that terrible injuries were also inflicted upon the German nation,

injuries which Rosenberg was equally unable to recognize as war

necessities.

His official tasks, as for example the duties of the Einsatzstab in the

West and East, were carried out by Rosenberg without compromising his

personal integrity. The requisitioning of artistic and cultural objects

he always carried out provisionally, subject to final decisions by the

supreme authority and, as far as was at all possible, with proper

identification of the proprietor. Moreover, in the use of unclaimed

furniture for the benefit of air-raid victims in Germany, provision was

made for the subsequent indemnification of the owners based upon a

precise inventory.

In considering his entire personality we see that Rosenberg followed

with faith and devotion an ideal of social justice combined with

national dignity. He fought for it openly and honorably, went to prison,

and risked his life for it. He did not step in only when National

Socialism afforded the opportunity to begin a career, but at a time when

it was dangerous and asked only for sacrifice. In his speeches after

1933 he took his stand in favor of deeper spiritual formation, a new

cultural education, personality values, and respect for every form of

honest work. He accepted the gloomy days of that time as unfortunate but

inevitable accompanying phenomena of a revolution otherwise acclaimed as

having passed without bloodshed, without having in fact learned of the

secret details. He fully believed that good forces and ideas would

prevail over these other human imperfections. During the war he was at

the service of the Reich in accordance with his duty.

For 25 years, throughout the revolution and the events of the war, he

maintained his personal integrity and untainted character. He had to

witness with deep sorrow that a great idea, in the hands of those

possessed with the lust for power, was gradually abused, and in 1944, at

Party meetings, he protested against this abuse of power entrusted to

its holders. During this Trial he had to his dismay and horror to look

upon the evidence of the degeneration of his life’s ideal; but he knows

that his aspirations and the aspirations of many millions of other

Germans have been honorable and decent. Today he still adheres to his

honorable, honest, and humanly irreproachable conduct and, full of

sorrow for the wounds inflicted upon all nations and for the downfall of

the Reich, he awaits the sentence of a just Tribunal.

[_The Tribunal adjourned until 11 July 1946 at 1000 hours._]

ONE HUNDRED

AND SEVENTY-SIXTH DAY

Thursday, 11 July 1946

_Morning Session_

THE PRESIDENT: The Tribunal will adjourn this afternoon at four o’clock

to sit in closed session.

Dr. Seidl, will you present the case of the Defendant Frank?

DR. ALFRED SEIDL (Counsel for Defendant Frank): Mr. President, My Lords.

The Defendant Dr. Hans Frank is accused in the Indictment of having

utilized his posts in Party and State, his personal influence, and his

relation with the Führer, for the purpose of supporting the seizure of

power by the National Socialists and the consolidation of their control

over Germany. He is also accused of having approved, led, and taken part

in the War Crimes mentioned in Count Three of the Indictment, as well as

in the Crimes against Humanity mentioned in Count Four, particularly in

the war crimes and crimes against humanity committed in the course of

the administration of occupied territories.

As I have already explained in the case of the Defendant Hess, the

Indictment fails to adduce any facts in substantiation of these

accusations. It is similar in the case of the Defendant Frank; here

again the Indictment contains no statement of factual details to

substantiate the accusations. Like all the other defendants, the

Defendant Frank is accused of having taken part in a common plan which

is alleged to have had as its object the planning and waging of wars of

aggression and the commission in the course of these wars of crimes

which infringe upon the laws and customs of war.

The evidence has shown that the Defendant Frank joined the National

Socialist Party in the year 1928. Both before and after the assumption

of power by the National Socialists he was concerned almost exclusively

with legal questions. The Reich Law Department was under his control as

Reichsleiter of the Party until the year 1942. After Adolf Hitler’s

appointment as Chancellor, Frank became the Bavarian Minister of

Justice. In the same year he was appointed Reich commissioner for the

co-ordination of legal institutions. This task consisted in the main of

transferring to the Reich Ministry of Justice the functions of the

administrative legal departments of the component states of the Reich.

That was completed by the year 1934. When the affairs of the Bavarian

Ministry of Justice had been transferred to the Reich, the office of the

Defendant Frank as Bavarian Minister of Justice came to an end. In

December 1934 he was appointed Reich Minister without Portfolio. In

addition he became, from 1934 onward, President of the Academy for

German Law, which he himself had founded, and President of the

International Chamber of Law. Finally, he was the Leader of the National

Socialist Lawyers Association.

This list of the various posts held by the Defendant Frank in Party and

State would alone be sufficient to show that his work was almost

exclusively concerned with legal matters. His tasks were in the main

confined to the execution of Point 19 of the Party Program, which

demanded a German common law. And in actual fact almost all speeches and

publications by the Defendant Frank, both before and after the

assumption of power by the National Socialists, dealt with legal

questions in the widest sense of the term.

In the course of his examination in the witness box, the Defendant Frank

testified that he had done everything he could to bring Adolf Hitler to

power and to carry out the ideas and the program of the National

Socialist Party. But whatever the defendant undertook in this respect

was done openly.

The aims of the National Socialists before they assumed power can be

expressed in a few words: Liberation of the German people from the

shackles of the Versailles Treaty; elimination of the mass unemployment

which had arisen in consequence of that treaty and the unreasonable

reparations policy of Germany’s former enemies; counteraction against

the symptoms of degeneracy—political, economic, social, and

moral—connected with that unemployment; and finally, the restoration of

the sovereignty of the Reich in all spheres.

The Prosecution was unable to produce any evidence to show that the

revision of the Versailles Treaty was, if necessary, to be carried out

by violent means and by war. The political, military, and economic

situation in which Germany found herself before the assumption of

power—a situation in which it could only be a question of eliminating

the terrible consequences of the economic collapse and of enabling seven

million unemployed again to play their part in the economic

process—could not but make any serious thought of a war of aggression

appear futile.

Moreover, the evidence brought forth nothing to show the existence of

the common plan as stated in Count One of the Indictment, as far as one

understands thereby a definite and concrete plan among a narrow uniform

circle of persons. The evidence, in particular the testimony given by

the witness Dr. Lammers and the defendant himself in the witness box,

has shown on the contrary that Frank did not belong to the circle of

Hitler’s closer collaborators. The Prosecution was unable to present to

the Tribunal a single document dealing with important political or

military decisions with which the Defendant Frank was connected. In

particular, the Defendant Frank was not present at any of the

conferences with Hitler which the Prosecution considers especially

important in proving the alleged common plan, the minutes of which

conferences the Prosecution has submitted as Exhibits, Numbers USA-25 to

34.

The only statute which is important in this connection is the Law on the

Reintroduction of General Conscription of 16 March 1935. The facts have

already been explained, and will be further enlarged upon, which led to

the promulgation of that law and why it cannot be looked upon as an

infringement of the Versailles Treaty. The Defendant Frank signed that

law in his capacity as Reich Minister, as did all the other members of

the Reich Government. That law, which had as its object the

restoration—at least in the military sphere—of the sovereignty of the

German Reich, did no harm to any other nation. Nor did the content of

that law, or the circumstances which led to its enactment, admit the

conclusion that it was part of a common plan with the object of

launching a war of aggression.

The German people had been obliged to realize, during the preceding 17

years, that the voice of a nation without military power, and in

particular a nation in Germany’s geographical and military situation,

cannot make itself heard in the concert of nations if it has not at its

disposal adequate instruments of power. The Government of the Reich

faced the consequences of this realization after equality of rights had

been promised the German people over and over again for 14 years and

that promise had not been kept, and in particular after it had become

clear in the years 1933 and 1934 that the Disarmament Conference would

not be capable of fulfilling its appointed functions. For the rest, I

refer to the proclamation of the Reich Government to the German people,

which was issued in connection with the publication of that law.

Further, the work of the Defendant Frank, even after the assumption of

power and up to the beginning of the war, was confined almost

exclusively to the execution of tasks connected with the leadership of

the Academy for German Law and the National Socialist Lawyers

Association. The objects of the Academy for German Law are apparent from

the law concerning its establishment of 11 July 1933. It was intended to

encourage the reform of German legal procedure and, in close and

constant co-operation with the appropriate legislative authorities, to

put the National Socialist program into practice in the whole sphere of

law. The academy was under the supervision of the Reich Minister of

Justice and the Reich Minister of the Interior. The function of the

academy was to prepare drafts of statutes; legislation itself was

exclusively restricted to the Reich ministries for the various

departments.

One of the tasks of the academy was to exercise the functions of the

legal committees of the former Reichstag. In actual fact the work of the

academy was done almost exclusively in its numerous committees, which

had been established by the defendant. Acceptance into the academy was

not dependent on membership in the Party. Most of the members of the

academy were legal scholars and eminent legal practitioners who were not

Party members. Moreover, it is well known that the Academy for German

Law kept up close relations with similar establishments abroad and that

numerous foreign scholars gave lectures in the academy. These facts

entirely exclude the assumption that the academy could have played any

important part in the common plan alleged by the Prosecution. The same

is true of the position of the Defendant Frank as leader of the National

Socialist Lawyers Association.

Adolf Hitler’s attitude toward the conception of a State founded on law,

insofar as any doubt could still have been entertained about it, has

become perfectly clear through the evidence presented at this Trial.

Hitler was a revolutionary and a man of violence. He looked on law as an

impeding and disturbing factor in the realization of his plans in the

realm of power politics. Incidentally, he left no doubt about this

attitude of his and discussed the subject of the State founded on law in

a number of speeches. He was always very reserved in his dealings with

lawyers, and for this reason alone it was impossible from the outset

that any close association could have developed between him and the

Defendant Frank. The Defendant Frank considered it his life’s work to

see the conception of the State founded on law realized in the National

Socialist Reich and, above all, to safeguard the independence of the

judiciary.

The Defendant Frank proclaimed these principles as late as 1939, before

the outbreak of war, in a great speech he made before 25,000 lawyers at

the final meeting of the Congress of German Law at Leipzig. Among other

things he declared on that occasion:

“First, no one should be sentenced who has not had an

opportunity of defending himself.

“Second, no one shall be deprived of his property, provided that

he uses it unobjectionably from the point of view of the

community, except by judicial sentence. Legal properties in this

sense include honor, freedom, life, and earnings.

“Third, an accused person, no matter under what procedure, must

be enabled to procure someone to defend him who is capable of

making legal statements on his behalf; and he must have an

impartial hearing according to law. If these principles are

applied to their full extent, then the Germanic ideal of law

will be fulfilled.”

These principles constitute a definite repudiation of all methods

employed in a police-ruled State and imply, moreover, the definite

rejection of the system of concentration camps. The Defendant Frank had

actually spoken against the establishment of concentration camps before

the date indicated. The evidence has shown that in the year 1933, in his

capacity as Bavarian Minister of Justice, he was opposed to the

concentration camp at Dachau, that he urged the application of the

so-called legality principle, that is, the prosecution of all offenses

by the State, even in these camps, and that, over and above this, he

demanded the dissolution of the concentration camp at Dachau. That this

last point is a fact is shown by the evidence given by the witness Dr.

Stepp, who was questioned elsewhere.

The Prosecution also appears to see in the sentence, “Right is what

benefits the people,” an indication of the participation of the

Defendant Frank in the alleged common plan. Such a conclusion could only

be drawn in complete misapprehension of the idea which the Defendant

Frank wished to express by means of this sentence. This was merely a

challenge to the exaggeratedly individualistic legal idea. In the same

way as by the phrase, “The common good before one’s own,” the sentence

quoted is intended to express the demand for a legal system which, to a

greater extent than in previous years, should take account of common law

and socialist tendencies. It is in reality nothing more than a different

way of saying: _Salus publica suprema lex_.

These material differences alone would have been sufficient to make it

unthinkable that the Defendant Frank could have belonged to the inner

circle of Hitler’s collaborators. The differences of outlook in regard

to the functions of law were bound to become more pronounced in the

course of the war. It could therefore cause no surprise that after the

death of the former Reich Minister of Justice, Dr. Gürtner, it was not

the Defendant Frank who was appointed his successor, but the President

of the Peoples’ Court, Dr. Thierack.

Summing up, it may be said that there is no factual foundation for the

assumption that the Defendant Frank participated in a common plan, a

common plan which had as its object the waging of an aggressive war and

in connection therewith the commission of crimes against the rules of

war. Before I turn to the points of accusation brought against the

Defendant Frank within the framework of his career as Governor General,

I will refer shortly to his responsibility under penal law as a member

of the organizations accused of criminality.

So far as Frank’s responsibility as member of the Reich Government is

under investigation, I can here in the main refer to the statements

which I shall later make in the case of the Defendant Hess. The only

difference lies in the fact that whereas Hess, too, was only Reich

Minister without Portfolio, he had—as the Führer’s Deputy under the

Führer’s decree of 27 July 1934—a considerable influence on the

preparation of laws. That, however, was not the case with the Defendant

Frank. Frank had hardly any influence at all on the legislation of the

Reich. That is why he was cosignatory of so extraordinarily few Reich

laws. With the exception of the law of 16 March 1935, by which general

conscription was reintroduced, his name is to be found under none of the

laws which the Prosecution has presented to the Tribunal as relevant to

the proof of the criminal nature of the Reich Government as an

organization.

The Defendant Frank, in his capacity as Reichsleiter and Leader of the

Reich Law Department, was also a member of the Leadership Corps of the

National Socialist German Workers’ Party. An investigation of this point

of accusation seems all the less called for since in this respect no act

can be attributed to the Defendant Frank which fulfills the requirements

of any penal law. For the rest, here too I can refer to my statements in

the case of the Defendant Hess.

In Appendix A to the Indictment it is alleged that the Defendant Frank

was a general of the SS. The evidence has shown that Frank at no time

belonged to the SS and that he did not even have the honorary rank of a

general of the SS. On the other hand, he was an Obergruppenführer in the

SA. With respect to the application made by the Prosecution to declare

that organization as criminal, too, the same may be said as in the case

of the application to declare the Leadership Corps criminal. The Charter

and the Prosecution here again depart from the principle which hitherto

has been considered an indispensable component of any modern criminal

law practice, namely, that no punishment is admissible unless guilt has

been established in every individual case.

I now pass to the points of accusation in connection with the career of

the Defendant Frank as Governor General. When the Polish Government had

left the country after Poland’s military collapse, the German occupying

forces were faced with the task of building up an administration without

the help of any parliamentary, representation or any representatives of

the former Polish State. The difficulties arising out of this situation

were bound to be all the greater because, in spite of the comparatively

short time that the war had lasted, the war damage, especially to the

communications system, was not inconsiderable. Above all, however, the

establishment of an orderly administration was rendered more difficult

by the fact that the homogeneous economic area of the former Polish

State was divided into three parts. Of the 388,000 square kilometers

which made up the territory of the former Polish State, about 200,000

were taken over by the Soviet Union and 97,000 formed the Government

General, while the rest was incorporated in the German Reich. A change

came on 1 August 1941. On that date Galicia was annexed to the

Government General as a new district, whereby the territory of the

Government General was increased to an area of approximately 150,000

square kilometers with about 18 million inhabitants. This frontier

delimitation made it all the more difficult for the administration, as

the agricultural excess production all went to the Soviet Union, while

on the other, hand important industrial cities such as Lodz, and above

all the coal fields of Dombrowa, fell to the Reich.

Directly after the military collapse of Poland, a military government

was set up to cover the four military districts of East Prussia, Posen,

Lodz, and Kraków, Commander Von Rundstedt being placed at the head of

that government. The Defendant Frank became Supreme Chief of

Administration (Oberverwaltungschef). The military government ended on

26 October 1939 with the coming into force of the decree of the Führer

and Reich Chancellor concerning the administration of the occupied

Polish territories under the date of 12 October 1939. Under this decree

the Defendant Frank was appointed Governor General for the occupied

Polish territories which were not incorporated in the Reich and which

shortly afterward became known as the Government General.

As the time at my disposal is short, I will not go into detail on the

question as to whether the administration of the territories of the

former Polish State, jointly designated as the Government General,

should have conformed to the principle of _occupatio bellica_

(occupation of enemy territory), or whether it should not rather be

assumed that the principles of debellatio (complete subjection and

incorporation in a foreign state) were applicable in that case.

I come now to the question of the powers vested in the Defendant Frank

by virtue of his office of Governor General. According to Article 3 of

the Führer’s decree of 12 October 1939 the Governor General was directly

subordinate to the Führer. The same provision placed all branches of the

administration in the hands of the Governor General. In actual fact,

however, the Governor General had by no means such wide powers as it

would seem at first sight. The Führer’s decree itself provided in

Article 5 that the Ministerial Council for the Defense of the Reich

could also make laws for the territory of the Government General.

The Delegate for the Four Year Plan had the same power. Article 6

provided that, moreover, all supreme Reich authorities could issue

decrees necessary for planning within the German living space and

economic area and that these would be effective also for the Government

General.

Apart from this limitation of the authority of the Governor General as

provided in the Führer decree of 12 October 1939, other powers were

conferred at a later date which no less impaired the principle of

uniform administration. That is particularly true of the position of the

Plenipotentiary General for the Allocation of Labor. I refer at this

point to the appropriate documents presented by the Prosecution and the

Defense, in particular to the Führer’s decree of 21 March 1942, in which

it is expressly provided that the powers of the Plenipotentiary General

for the Allocation of Labor extend to the territory of the Government

General. The whole armament industry in the Government General was at

first in the hands of the OKW, but after the establishment of the Reich

Ministry for Armaments and War Production it came under the jurisdiction

of the latter.

The evidence has shown that in other directions, too, the principle of

uniform administration was extensively infringed upon. For this I refer

to the statements of the witnesses Dr. Lammers and Dr. Bühler and to the

content of the documents submitted by me, especially Document USA-135.

This deals with the directives in “special matters concerning

instructions Number 21 (Case Barbarossa),” in which it is expressly

provided that the commander-in-chief of the Army shall be entitled “to

order such measures in the Government General as are necessary for the

execution of his military duties and for safeguarding the troops” and in

which the commander-in-chief is empowered to delegate his authority to

the army groups and armies.

All these infringements of the principle of a uniform administration of

all special powers, however, pale beside the special position allotted

to the Reichsführer SS Himmler also in respect of the territory of the

Government General. The evidence, and particularly the testimony of Dr.

Bilfinger, Oberregierungsrat in the RSHA, shows that as early as in 1939

when the defendant was appointed Governor General, a secret decree was

issued in which it was provided that the Higher SS and Police Leader,

East was to receive his instructions direct from the Reichsführer SS and

Chief of the German Police, Himmler. Similarly, it is provided in the

decree of the Führer and Reich Chancellor for the Preservation of German

Nationality that the Reichsführer SS shall be directly empowered to

effect the planning of new German settlement areas by means of

resettlements. These two decrees conferred on the Reichsführer SS

Himmler powers which, from the very first day of the existence of the

Government General, tended to confront its administration with almost

insurmountable difficulties. It was very soon evident that the general

administration under the Governor General had at its disposal no

executive organs, in the true meaning of the term. Since the Higher SS

and Police Leader, East received his instructions and orders direct from

Reichsführer SS Himmler and refused to carry out instructions emanating

from the Governor General, it was very soon seen that in reality there

were two separate authorities ruling over the Government General. The

difficulties which thus arose were bound to become all the greater, as

Higher SS and Police Leader Krüger, who for no less than 4 years was

Himmler’s direct representative in the Government General, did not even

inform the administration of the Government General before carrying out

police measures.

It is a well-known experience in the life of any state that an

administration lacking executive police organs is in the long run not

capable of carrying out its appointed functions. This is true even under

normal conditions, but it must be all the more pronounced in the

administration of occupied territory. If we remember, moreover, that not

only did the Reichsführer SS Himmler issue his instructions direct to

the Higher SS and Police Leader, ignoring the Governor General, but that

over and above this the Offices III, IV, V, and VI of the RSHA also gave

direct orders to the Commander of the Security Police and the SD in

Kraków, we can well assess the difficulties with which the civil

administration of the Government General had to wrestle day by day.

Under these circumstances the Governor General had no choice but to make

every attempt to reach some form of co-operation with the Security

Police, unless he was prepared to relinquish any hope of building up a

civil administration in the Government General. And in fact the history

of the administration of the Government General—which lasted for over 5

years—is for the greater part nothing but a chronicle of uninterrupted

struggles between the Governor General and the administration on the one

hand, and the Security Police with the SD as represented by Reichsführer

SS Himmler and the Higher SS and Police Leader, East, on the other.

The same applies to the activity of Himmler and his organs in the field

of resettlement. As Reich Commissioner for the Preservation of German

Nationality, Himmler and his organs carried out resettlement measures

without even establishing previous contact with the administration of

the Government General or informing the Governor General.

The numerous protests of the Governor General, addressed to Dr. Lammers,

the Reich Minister and Chief of the Reich Chancellery, with regard to

the measures taken by the Reichsführer and the Higher SS and Police

Leader, East, and the difficulties they put in the way of the

administration of that territory, have been established by the evidence.

These protests led in the year 1942 to an attempt at redirecting the

relationship between the administration and the Police. In retrospect,

it can be said today as a result of the evidence that even this attempt

was only utilized by Himmler and the Security Police to undermine

internally and externally the position of the Governor General and his

civil administration.

By a decree of the Führer dated 7 May 1942 a State Secretariat for

Security was established in the Government General, and the Higher SS

and Police Leader was appointed State Secretary. According to Article II

of this decree, the State Secretary for Security also became the

representative of the Reichsführer SS in his capacity as Reich

Commissioner for the Preservation of German Nationality. The decisive

provision of this decree is contained in Article IV, in which it is

stated verbatim:

“The Reichsführer SS and Chief of the German Police can issue

direct instructions to the State Secretary for Security in

matters pertaining to security and the preservation of German

nationality.”

Herewith, the contents of the secret decree issued in 1939 on the

establishment of the Government General—which also provided that the

Higher SS and Police Leader, East was to receive his instructions direct

from the Berlin central offices and particularly from the Reichsführer

SS in person—was expressly, and now publicly, confirmed. It is true

that Article V of the Führer decree of 7 May 1942 provided that in cases

of difference of opinion between the Governor General and the

Reichsführer SS and Chief of the German Police the Führer’s decision was

to be obtained through the Reich Minister and Chief of the Chancellery.

The Chief of the Reich Chancellery, Lammers, was interrogated on this

subject when he appeared as a witness before this Tribunal. He testified

that insofar as he found it possible at all to gain the Führer’s ear in

these matters, the latter on principle invariably approved Himmler’s

view. This is not surprising if we remember Himmler’s position in the

German governmental system, particularly during the later war years.

This deprived the Defendant Frank of the last possibility of influencing

in any way the measures taken by Himmler and the Higher SS and Police

Leader, East.

In consequence of Article I, Paragraph 3, of the Führer decree of 7 May

1942 the scope of duties of the State Secretary for Security had to be

newly defined. Both the Higher SS and Police Leader and, backing him,

the Reichsführer SS attempted to bring as wide a field as possible under

their jurisdiction in connection with the new regulation of the

competence of the State Secretariat; on the other hand, the Governor

General, in the interest of the maintenance of some sort of order in the

administration, naturally tried to obtain control of at least certain

departments of the Regular Police and the Administration Police. There

is no doubt at all that it was the Police that emerged the victor in

these struggles.

On 3 June 1942 the Governor General was obliged—in a decree concerning

the delegation of duties to the State Secretary for Security—to declare

himself willing to transfer to the State Secretary all the departments

of the Security Police and the Regular Police. I have submitted this

decree to the Tribunal (together with its two Appendices A and B) in the

course of the evidence as Exhibit Number Frank-4. The two appendices

list all the functions of the Regular and Security Police that have ever

existed in the German police system. In Appendix A, which covers the

departments of the Regular Police, there are 26 headings in which not

only all the departments of the Regular Police are transferred to the

State Secretary for Security, but over and above that, almost all the

departmental functions of the so-called Administration Police. I will

only mention Heading 18 as one example among many. This transfers to the

Regular Police, and thereby to the Higher SS and Police Leader, all

matters connected with price control. What is true of the Regular Police

applies in even greater measure to the departments of the Security

Police. No change as compared with the earlier situation was brought

about by placing under the jurisdiction of the Higher SS and Police

Leader the whole of the Political and Criminal Police, political

intelligence, Jewish affairs, and similar departments; these

competencies were already his as leader of the Security Police and the

SD, and were made entirely independent of the administration of the

Government General under the secret decree of 1939. Departments were

also transferred to the State Secretary for Security which had only the

remotest connection with the tasks of the Security Police, for example,

matters such as the regulation of holidays and so on.

Of considerable importance are the two last headings in the Appendices A

and B, in which it is expressly provided that at conferences and

meetings, particularly with the central Reich authorities, on all

matters pertaining to the Regular and Security Police, the Government

General—not the Governor—should be represented by the Higher SS and

Police Leader. Therewith any competency possessed by the Governor

General, even in regard to comparatively unimportant branches of the

Administration Police, was transferred to the organs of Reichsführer SS

Himmler, and the Government General was thus deprived of even the last

remnants of an executive of its own.

Only by considering these facts and the development of the conditions

obtaining between administration and police in the Government General is

it possible to form an even approximately correct appreciation of the

events in the Government General, which form part of the subject of the

Indictment in this Trial.

Your Lordships, the Prosecution seeks to prove its accusations against

the Defendant Dr. Frank in the main by quotations from the defendant’s

diary. In this connection I have the following basic observation to

make.

That diary was not kept personally by the Defendant Frank but was

compiled by stenographers who were present at Government conferences and

other discussions of the Governor General. The diary consists of 42

volumes with no less than 10,000 or 12,000 pages of typescript.

With one exception, the entries do not represent the outcome of

dictation by the defendant, but take the form of stenographers’

transcripts. For the greater part—and this is evident from the diary

itself—the authors of this diary did not record the various speeches

and remarks word for word, but made a summarized version in their own

words. The entries in the diary were not checked by the defendant,

nor—again with one single exception—were they signed by him. The

attendance lists stapled into several volumes of the diary—they are

only contained in such volumes as relate to Government

conferences—cannot be looked upon as a substitute for a confirmatory

note.

Moreover, the evidence has clearly established that very many entries in

the diary were not made on the basis of personal observations but came

about through the fact that the author was told by participants about

the subjects of Government meetings or other conferences after they had

taken place, and then expressed it in the diary in his own words.

Moreover, by an examination of the diary it can easily be ascertained

that the entries cannot be considered complete.

All these facts bring us to the conclusion that the material evidential

value of this diary must not be overestimated. The evidential value of

this diary can in no way be compared with the evidential value of

entries made personally by the person concerned.

Above all, however, it seems to me essential to point out the following:

The contents of any document are of material evidential value only

insofar as the document is appreciated in its entirety. The diary of the

Defendant Frank with its 10,000 or 12,000 pages is one uniform document.

It is improper to put in as evidence certain individual entries without

showing the context in which alone some of them can be understood. But

it is particularly improper—and this infringes upon the principles of

any presentation of evidence—to select from some uniform whole, such as

a long speech, a few sentences and put them in as evidence. In Document

Book Number 2, I have listed a few examples of this and hereby refer to

them.

As the Defendant Frank himself rightly pointed out in the witness box,

the diary is a uniform whole; only in its entirety can it be probative

and form part of the presentation of evidence. I have read through that

diary of more than 10,000 pages and can only confirm his opinion. And

that was why I did not use individual entries in presenting my evidence

but put in the whole diary.

If I myself, in presenting evidence, have read certain single entries

from the diary and if in the course of my present address I shall quote

a few more passages from it, then, just as in the case of the extracts

put forward by the Prosecution, their evidential value can certainly be

gauged only within the framework of the whole diary.

The following may also be looked upon as having been established by the

evidence: As the diaries show, and as is evident in particular from the

testimony given by the witnesses Bühler, Böpple, and Meidinger, the

Defendant Frank in his capacity as Governor General often made two or

three improvised speeches in the course of one day. The extracts from

the diary presented by the Prosecution consist, for the most part, of

single sentences from such speeches. If we take into consideration both

the temperament of the defendant and his habit of expressing himself in

an incisive manner, then that is another reason which tends to reduce

the probative value of these extracts from the diary. And we actually do

find many diary entries which flatly contradict other entries on the

same subject occurring a little earlier or later.

In connection with the many speeches made by the Defendant Frank, the

following must not be left out of consideration and may also be looked

upon as established by the evidence: It was a foregone conclusion that

the Defendant Frank, as an avowed champion of the idea of a State

founded on law and of the independence of the judiciary, would come into

increasingly sharp conflict with the representatives of the police-state

system; this developed to an even greater degree in the course of the

war, both within the Reich and in occupied territory. The

representatives of the police state, however, were Reichsführer SS

Himmler and, for the area of the Government General, the Higher SS and

Police Leader, East, above all and in particular SS Obergruppenführer

and General of Police Krüger. The relation between the Defendant Frank

on the one hand, and Reichsführer SS Himmler and his representative,

Obergruppenführer Krüger, on the other, had been extremely bad even at

the time the Government General was established. They deteriorated still

more as the divergence of outlook concerning the tasks of the Police

came ever more openly to the fore; and the Defendant Frank was forced to

lodge increasingly strong protests with the Chief of the Reich

Chancellery, Dr. Lammers, and the Führer himself regarding the violent

measures taken by the Security Police and the SD.

As I have already mentioned, the Governor General, lacking an executive

of his own, had no choice but to make repeated attempts to co-ordinate

the work of the general administration with that of the Police, in order

to be in a position to carry out any administrative work at all.

Obviously these objectives demanded—at least on the face of things in a

certain degree—a conciliatory tendency toward the general attitude of

the Security Police and, above all, of the Higher SS and Police Leader,

East. Moreover, the evidence has further established that the tension

existing between the Governor General and the Higher SS and Police

Leader often reached such a degree that the Defendant Frank could not

but feel himself menaced and—to quote the words of the witness

Bühler—was no longer a free agent and master of his own decisions.

The testimony of the witnesses Bach-Zelewsky and Dr. Albrecht leaves no

doubt on this point. Quite rightly, therefore, the witness Dr. Bühler

also pointed out that the Defendant Frank expressed himself with

particular vehemence when the Higher SS and Police Leader or the

commander of the Security Police and the SD were present at conferences,

while his utterances were made on quite a different note when he was

speaking to an audience composed only of members of the administration.

Even a cursory inspection of the diary will confirm this. All these

circumstances must be taken into consideration in assessing the

substantive evidential value of the Defendant Frank’s diary.

It should also be noted that these diaries constituted the only personal

property that Frank was able to rescue from the castle at Kraków. On his

arrest he handed over all the diaries to the officers who took him into

custody. It would have been an easy matter for him to destroy these

documents.

Your Lordships, I now turn to the individual accusations brought against

the defendant, and their legal aspects. The Defendant Frank is accused

of having approved of, and participated in, War Crimes and Crimes

against Humanity in the administration of occupied territory.

As the law stands, it rests on the principle that only a sovereign

state, not an individual, can be a subject of international law. To make

international law binding on an individual, such law itself would have

to lay down that a certain set of facts constitutes a wrong and that the

rule thereby established is applicable to an individual creating such a

set of facts. Only in that way can individuals, who under the law as it

stands are subject only to the criminal law applying in each state, by

way of exception be directly bound by international law.

Deviating from this rule, existing international law permits, in

exceptional cases, a state to punish the national of an enemy state who

has fallen into its power, if before his capture he has been guilty of

infringing the rules of war. But even here punishment is excluded if the

deed was not committed on the person’s own initiative, but can only be

attributed to his state of allegiance. Moreover, the conception of war

crimes and their factual characteristics are the subject of great

controversy both in judicial decisions and in legal literature.

Nor do the Hague Rules on Land Warfare, which form the Appendix to the

IVth Convention on the Laws and Customs of War on Land and purport to be

a codification of certain subject matter of the laws of war, list any

facts which could be interpreted as a basis for the criminal liability

of individuals. In Article 3 of this convention it is, on the contrary,

expressly provided that not individuals but the state which infringed

the rules may, under certain circumstances, be liable to pay an

indemnity and is also responsible for all acts done by persons belonging

to its armed forces.

In connection with the Hague Rules for Land Warfare of 1907 the

following should also be noted: The principles therein enunciated were

evolved from the experience of wars in the 19th century. Those wars were

confined in the main to the armed forces directly concerned therein.

Now the first World War already overstepped this framework, and not only

in respect of the geographical extent of conflict. On the contrary, the

war became a struggle for extermination of the nations involved, a

struggle in which each belligerent party utilized the whole of its war

potential and all its material and imponderable resources. War technique

having meanwhile been considerably perfected, the second World War was

bound altogether to destroy the framework set up for the conduct of war

by the Hague Rules for Land Warfare. That can be seen at a glance—the

condition of Europe today reveals it. If we remember in addition that in

Germany alone the greater part of almost every city has been destroyed

as a result of bombing raids; and not only that, but that considerably

more than a million civilians thereby lost their lives and that in a

single major raid on the city of Dresden almost 300,000 people were

killed, then it will be possible to realize that the Hague Rules for

Land Warfare, at any rate in respect of many activities coming under the

rules of war, can no longer be an adequate expression of the laws and

customs to be observed in waging war. But if any doubt should exist on

this subject, then that doubt will certainly be removed on contemplation

of the consequences of the two atom bombs which razed Hiroshima and

Nagasaki to the ground and killed hundreds of thousands of people.

Taking these circumstances into consideration, it is not possible to

adduce the provisions of the Hague Rules for Land Warfare, even

indirectly or by way of analogy, to establish individual criminal

liability. Seeing that this is the case, it must be looked upon as

impossible to give a clear and general definition of the factual

characteristics of so-called war crimes. Referring to the fact that even

Article 6 of the Charter of the International Military Tribunal only

purports to furnish a list of examples, it will be realized that the

question as to whether a certain line of conduct amounts to the

commission of a war crime or not can only be answered on the merits of

each particular case, and then only if all the circumstances are taken

into consideration.

In the course of the presentation of evidence for the personal

responsibility of the Defendant Frank, the Prosecution submitted as

Exhibit USA-609 (864-PS) minutes of a conference held by the Führer with

the Chief of the OKW on the future form of Polish relations to Germany.

This conference took place on 17 October 1939. It is alleged that these

minutes alone, by which the administrative goals of the Defendant Frank

in the Government General are said to be established, reveal a plan or

conspiracy at variance with the laws of warfare and humanity. This is an

inadmissible conclusion, at least insofar as the Defendant Frank is

concerned.

The Prosecution was unable to prove that the Führer entrusted the

Defendant Frank with a task in conformity with the administrative aims

demanded in that conference. Moreover, this seems very unlikely, because

the directives laid down at that conference dealt mainly with measures

which could not be carried out by the general administration, but only

by the Security Police, the SD, and the other organs and offices under

Reichsführer SS Himmler. In this connection special mention should also

be made of the powers vested in Reichsführer SS Himmler before the date

of that conference in his capacity of Reich Commissioner for the

Preservation of German Nationality. Actually, there is at the end of

Exhibit USA-609 a reference to a commission with which Himmler was

charged. In consideration of the fact that the Defendant Frank, in the

course of a short interview with Hitler about the middle of September

1939, had been told to take over the civil administration of occupied

Polish territory as Chief of Administration and had not seen Hitler for

a very long time after that, it can safely be assumed that the

directives laid down at the conference between Hitler and the Chief of

the OKW were intended, not for the Defendant Frank, but for Reichsführer

SS Himmler, who was the only person to have the necessary executive

organs at his disposal.

THE PRESIDENT: We will adjourn now.

[_A recess was taken._]

DR. SEIDL: Mr. President, My Lordships, another document to which the

Prosecution has referred and which is also alleged to show the

criminality of the administrative aims of the Defendant Frank is Exhibit

Number USA-297, which is EC-344(16). The content of this document is a

discussion which the Defendant Frank is said to have had on 3 October

1939 with a certain Captain Varain. The Defendant Frank testified in the

witness box that he had never made any such or similar statements to an

officer. Moreover, a comparison of the dates shows that this

conversation, even if it should have taken place, can have no connection

with the subject of the conference between the Führer and the Chief of

the OKW, the latter not having been held until 17 October 1939, that is,

at a later date.

Not within the framework of the evidence presented in connection with

the personal responsibility of the Defendant Frank, but in connection

with the accusation of so-called Germanization, a document was submitted

with the Exhibit USA-300, 661-PS. This is a memorandum entitled “Legal

Aspects of German Policy toward the Poles from the Ethno-Political Point

of View.” According to a note on the title page, the legal part of this

was to serve as a model for the Committee of the Academy for German Law

which dealt with legal nationality questions. This document can have no

probative value in connection with the personal responsibility of the

Defendant Frank. He testified in the witness box that he had given no

instructions for the writing of that memorandum and that he was not

aware of its contents. Over and above this, it would seem that no

substantive evidential value can be attached to that document within the

scope of this whole Trial. Nor is it evident, from the memorandum, who

wrote it or who gave instructions that it should be written. Its whole

form and content would seem to show that it is not an official document,

but rather the work of a private individual. It was stated to have been

found at the Ministry of Justice in Kassel. But in actual fact there has

been no Ministry of Justice at Kassel for many decades. All these

circumstances would seem to indicate that the material probative value

of this document is, to say the least, extremely small.

But whatever the evidential value of minutes of conferences that took

place in the year 1939 on the occasion of the establishment of the

Government General, the following should be pointed out:

In judging the conduct of the Defendant Frank it is not of such

essential importance to know what Hitler, he himself, or other persons

said on one occasion or another, but what policy the Defendant Frank

actually pursued toward the Polish and Ukrainian peoples. And here there

can be no possible doubt—on the basis both of the general result of the

evidence and, in particular, of entries in the diary of the defendant

himself—that he repudiated all tendencies and measures designed to

effect Germanization. That is shown with great clarity by the extracts

from the diary which I have submitted to the Tribunal. Thus on 8 March

1940 he declared at a meeting of department chiefs, that is, to an

audience of men who as leaders of the various main departments were

deputed to put his directives into practice:

“I have been charged by the Führer to look upon the Government

General as the home of the Polish people. Accordingly no

Germanization of any sort or kind is possible. In your

departments you will please see that the two-language principle

is strictly observed; you will also point out to district and

provincial officers that no violence is to be used in opposing

such safeguarding of Polish national existence. We have in a

certain sense herewith taken over on trust from the Führer the

responsibility for Polish national life.”

This declaration alone makes it apparent that the directives laid down

in the conference between Hitler and the Chief of the OKW on 17 October

1939, as contained in Exhibit USA-609, 864-PS, cannot possibly have been

made the subject of the duties with which the Defendant Frank was

charged. On the other hand, in view of the entire activities of the

Higher SS and Police Leader, East from the first day of his appointment,

it can safely be assumed that it was Reichsführer SS Himmler whom Hitler

charged with carrying out the directives laid down at his conference

with the Chief of the OKW.

A diary entry of 19 February 1940 is on the same lines; in this the

Defendant Frank advocates the formation of a Polish government or

regency council.

On 25 February 1940, at a service conference of officials of the

District of Radom, the Defendant Frank gave out, in program form, his

directives regarding general administration. On this occasion the

Defendant Frank said among other things:

“1. The Government General comprises that part of the occupied

Polish area which is not a component part of the German Reich

...

“2. The Führer has decreed that this territory shall be the home

of the Polish people. The Führer and Field Marshal Göring have

impressed on me over and over again that this territory is not

to be subjected to Germanization.

“3. In accordance with the instructions we have received under

the Führer’s decree Polish laws will remain in force here.”

On 7 June 1942 the Defendant Frank stated word for word as follows:

“It is not as rulers by violence that we come and go in this

country. We have no terroristic or oppressive intentions. Welded

into the interests of Greater Germany, the living rights of the

Poles and Ukrainians in this territory are also safeguarded by

us. We have not taken away from the Poles and Ukrainians either

their churches, their schools, or their education. We Germans do

not wish to denationalize by violent means. We are sufficient

unto ourselves, and we know that people must be born into our

community and that it is a distinction to belong to it. And that

is why we can look the world in the face in this our task.”

These examples could be amplified by many more, which all show clearly

that the measures taken, at any rate by Frank, were intended to care for

the Polish nation and that he repudiated any terror policy.

I now come to the so-called “peace-enforcing action.” When the campaign

against Poland had ended in September 1939 that did not mean that all

resistance had ceased. Very soon afterward new centers of resistance

sprang up; and when on 9 April 1940 German troops occupied Denmark and

Norway and on 10 May 1940 the German western army had begun their

attack, the leaders of the Polish resistance movement believed that, in

consideration of the general political and military situation, the time

for action had come. This resistance movement was all the more dangerous

because dispersed but not inconsiderable remnants of the former Polish

Army were active in it. A large number of entries in the diary of the

Defendant Frank show that the security situation deteriorated from day

to day during that period. Here for instance is an entry for 16 May

1940:

“The general war situation requires that the most serious

consideration be given to the internal security situation of the

Government General. A large number of signs and actions lead to

the conclusion that there exists a widely organized wave of

resistance on the part of the Poles in the country and that we

are on the threshold of violent happenings on a large scale.

Thousands of Poles are already organized in secret circles; they

are armed and are being incited in the most seditious manner to

commit all kinds of violence.”

In consideration of this menacing general situation, the order was

given—as the diary shows, by the Führer himself—that in the interest

of the maintenance of public security all measures were to be taken to

suppress the imminent revolt. That order was given through Himmler to

the Higher SS and Police Leader. The administration of the Government

General at first had nothing to do with it. It intervened, however, in

order as far as possible to prevent the Security Police and the SD from

taking violent measures and to make sure that innocent people should

under no circumstances lose their lives.

The testimony given by the Defendants Frank and Seyss-Inquart in the

witness box and the evidence given by the witness Dr. Bühler have shown

that the efforts made by the administration of the Government General

were so far successful in that all the members of the resistance

movement rounded up by this special action were brought before a

drumhead court-martial introduced by a decree issued in 1939; and

moreover, the decisions of this court were not carried out before being

submitted to a Board of Pardon which in many cases modified the

sentence. The chairman of this Board of Pardon, until his appointment as

Reich Commissioner for the Netherlands, was the Defendant Dr.

Seyss-Inquart. As his testimony revealed, no less than half the death

sentences pronounced by the summary court were commuted to imprisonment

by the Board of Pardon. For the rest, in regard to the so-called

peace-enforcing action, I refer to the oral testimony and to the

extracts from the diary of the Defendant Frank which I read into the

record.

Within the scope of the charges against him personally, the Defendant

Frank is accused of having supported the resettlement plans of the Reich

Commissioner for the Preservation of German Nationality (Himmler) and of

having thereby also committed a war crime. There is no question but that

resettlement, even when carefully planned and well prepared, means great

hardship for those who are affected by it; in many cases a resettlement

means the destruction of a person’s economic existence. Nevertheless, it

seems doubtful whether resettlement constitutes a War Crime or a Crime

Against Humanity, for the following reasons:

Germany today is being flooded with millions of people who have been

driven from their homes and who own no property but what they carry with

them. The misery thereby caused, which is bound to increase to an

immeasurable degree in consequence of the devastation wrought by the

war, is so terrible that the bishops of the Cologne and Paderborn

ecclesiastical districts were moved on 29 March 1946 to bring this state

of affairs to the attention of the whole world. Among other things they

said:

“Some weeks ago we found occasion to comment on the outrageous

happenings in the East of Germany, particularly in Silesia and

the Sudetenland, where more than 10 million Germans have been

driven from their ancestral homes in brutal fashion, no

investigation having been made to ascertain whether or not there

was any question of personal guilt. No pen can describe the

unspeakable misery there imposed in contravention of all

consideration of humanity and justice. All these people are

being crammed together in what remains of Germany without means

for earning a livelihood there. It cannot be foreseen how these

masses of people who have been driven from their homes can

become other than peace-disturbing elements.”

My Lords, I am not mentioning this in order to point out the enormous

dangers connected with such measures, dangers which must arise, if only

out of the fact that in view of her planned deprivations of territory,

Germany—with an area reduced by 22 percent as compared with 1919—will

have to feed a population increased by 18 percent and that in future

there will be 200 inhabitants to the square kilometer. I am, further,

not pointing to this state of affairs to show that if the present

economic policy is continued and the so-called industrial plan is

maintained, Germany is heading for a catastrophe the consequences of

which cannot be confined to the German people. The evidential relevance

of these facts is however shown by the following:

Millions of Germans were driven from their ancestral homes in accordance

with a resolution taken at Potsdam on 2 August 1945 by President Truman,

Generalissimo Stalin, and Prime Minister Attlee.

GENERAL RUDENKO: ML President, excuse me for interrupting the

defendant’s counsel, but it seems to me that his legal considerations

and the criticism of the decisions taken at Potsdam have no bearing on

the present case.

DR. SEIDL: Mr. President, may I briefly define my attitude on this?

As far as I am concerned, I do not wish to criticize the decisions of

the Potsdam Conference. However, I am anxious to find out whether,

employing the rules of the Charter, a certain conduct which has been

alleged on the part of the Defendant Frank constitutes evidence for War

Crimes or Crimes against Humanity. It is only within the framework of

investigating that question that I find myself forced to go into the

decisions of the so-called Potsdam Conference and bring them up in my

argument.