THE PRESIDENT: Dr. Seidl, the Tribunal considers that your references to

the Potsdam Declaration are irrelevant, and the objection of General

Rudenko is therefore sustained. You are directed to go on to some other

part of your argument.

DR. SEIDL: Mr. President, I presume that the Tribunal have the

translation of my presentation at hand. I am not quite clear about the

question as to whether the final conclusion, which appears on Page 38,

is also affected by the decision of the Tribunal which you have just

announced.

THE PRESIDENT: It is affected by that, and I think you can pass on to

Page 40, where you begin to deal with the subject of the Jews. That is

the second paragraph on Page 40.

DR. SEIDL: Very well, Mr. President.

The Defendant Frank is further accused of having approved and carried

out a program for the extermination of Jews of Polish nationality,

thereby infringing upon the laws of war and humanity.

It is true that in a number of speeches given by the Defendant Frank in

his capacity as Governor General, he revealed his point of view on the

Jewish question. The extracts from the diary submitted by the

Prosecution in connection with this matter comprise practically

everything relevant thereto in the Defendant Frank’s diary of 10,000 or

12,000 typed pages. Nevertheless it shall not be denied that the

Defendant Frank made no secret of his anti-Semitic views. He spoke in

detail on this question when giving his testimony in the witness box.

But the question of the importance to be attached to the diary entries

submitted by the Prosecution is quite another matter. Almost all of them

consist of statements made by the Defendant Frank in speeches, but there

has not even been an attempt by the Prosecution to prove the existence

of a causal connection between these statements and the measures carried

out against the Jews by the Security Police.

As a result of the evidence, in particular of the testimony given by the

witnesses Dr. Bilfinger and Dr. Bühler, it can be looked upon as

certain—in connection with the secret decree concerning the

jurisdiction of the Security Police and the SD, of the year 1939, and

the decree concerning the transfer of certain tasks to the State

Secretary for Security—that all the measures concerning Jews in the

Government General were carried out exclusively by Reichsführer SS

Himmler and his organs. That is true for both the initiation and the

organization of ghettos and the so-called final solution of the Jewish

question.

In regard to the latter it may be said here, on the basis of the

testimony given by the witnesses Wisliceny and Hoess and of the

documents presented by the Prosecution, that these measures were

undertaken on Hitler’s express orders and that only a small circle of

persons was concerned in their execution. This small circle was confined

in the main to a few SS leaders of Department IVA, 4b of the RSHA and

the personnel of the concentration camps that had been selected for the

purpose.

The administration of the Government General had nothing to do with

these measures. The above facts also show that the anti-Semitic

statements by the Defendant Frank as submitted by the Prosecution have

no causal connection with the so-called final solution of the Jewish

question. Since a causal link must be established before the question of

illegality and guilt can even be considered, it does not seem necessary

to dwell further on the matter—all the less because the factual

elements of any punishable offenses can only be said to exist if at

least an attempt has been made, that is, if the commission of the

offense has at least been begun. Under the principles derived from the

criminal law of all civilized nations, the statements contained in the

diary of the Defendant Frank do not even constitute preparatory acts. In

consideration of the tense and sometimes extremely frangible

relationship between the Government General, on the one hand, and the

Reichsführer SS Himmler and the Higher SS and Police Leader Krüger, on

the other, it would also seem to be impossible to look upon the

statements of the Defendant Frank as acts of incitement or complicity.

The evidence has shown on the contrary that all the efforts of the

Defendant Frank to investigate successfully the rumors about the

elimination of the Jews, at least within his own administrative

district, failed completely. Only to complete the picture need it be

mentioned that the Concentration Camp of Auschwitz was not in the

Government General, but in that part of Poland which was annexed to

Upper Silesia. For the rest it cannot be clearly seen whether the

erection and administration of concentration camps is in itself to be

looked upon as fulfilling the requirements of a war crime or a crime

against humanity, or whether the Prosecution considers the establishment

of such camps solely as part of the so-called common plan. Setting aside

the crimes committed in the concentration camps and considering the

nature of concentration camps to be that in which people are confined

for reasons of state and police security on account of their political

opinions and without an opportunity of defending themselves in an

ordinary court of law, it appears at least doubtful whether an occupying

power should not have the right to take such necessary steps as this in

order to maintain public order and security. Apart from the fact that it

was not National Socialists and not Germans at all who first established

such camps, the following must be mentioned:

In the American Occupation Zone alone there were, according to a

statement ...

DR. ROBERT M. KEMPNER (Assistant Trial Counsel for the United States):

Mr. President, we raise an objection. This matter is completely

irrelevant.

THE PRESIDENT: Dr. Seidl, do you wish to say anything in answer to the

objection?

DR. SEIDL: Mr. President, I beg you to overrule the objection by the

Prosecution, and I should like to say the following: I am not interested

in criticizing an occupying power; I am only concerned with the question

of whether certain conduct of which the Defendant Frank has been accused

by the Prosecution constitutes the evidence of a criminal act.

I base my case on the assumption that what is proper for one occupying

power must, under similar circumstances, be allowed for another

occupying power, especially when it is a question of accusations made

against the defendant concerning actions carried out during the war,

while, the state of war with Germany having ceased on 8 May 1945 at the

very latest, these urgent reasons now perhaps no longer exist to that

extent.

THE PRESIDENT: The Tribunal sustains the objection. There is no evidence

of the statements which you have made. And in any event, the Tribunal

considers them entirely irrelevant.

DR. SEIDL: I assume, Mr. President, that in that case I may continue

with the last paragraph on Page 44.

THE PRESIDENT: I think so, yes, the last paragraph.

DR. SEIDL: It is not necessary to go into this matter in more detail

here, because the evidence has shown that it was the Defendant Frank who

from the first day of the National Socialists’ assumption of power

fought against the police-state system and, above all, decried the

concentration camps as an institution which could in no way be made to

harmonize with the idea of a state founded on law. In this connection I

refer to the testimony given by the witness Dr. Stepp, to the

defendant’s own statement, and above all to the extracts from the

defendant’s diary which I put in evidence. The evidence has further

shown that the establishment and administration of the concentration

camps lay within the sphere of Reichsführer SS Himmler’s organization.

The camps, both in Reich territories and in all areas occupied by German

troops, were exclusively under the command of the SS-WVHA or the

Inspector General of the Concentration Camps. Neither the Governor

General nor the general administration of the Government General had

anything to do with these camps.

A further point of accusation against Frank is the charge that he

supported violence and economic pressure as a means of recruiting

workers for deportation to Germany. It is true that during the recent

war many Poles came to work in Germany. But in this connection the

following should be noted:

Even before the first World War, hundreds of thousands of Poles came to

Germany as vagrant workers. This stream of vagrant workers continued to

flow also during the period between the first and the second World Wars.

In consequence of the unfortunate demarcation line, the Government

General became an area that was distinctly overpopulated. The

agricultural excess production areas had fallen to the Soviet Union,

whereas important industrial areas were incorporated into the Reich.

Under these circumstances, and because there were no riches to be found

in the soil, the only valuable means of production lay in the working

capacity of the population. And this—at any rate for the first few

years—could not be utilized to a sufficient extent, because the other

production factors were lacking. In order to avoid unemployment, and

above all in the interest of maintaining public order and security, the

administration of the Government General was bound, if only for reasons

of State policy, to try to transfer as many workers as possible to

Germany.

There can indeed be no doubt that during the first years of the

administration most of the Polish workers went to the Reich voluntarily.

When later, in consequence of the continuous bombing raids, not only

Germany’s cities but also her factories crumbled to ruins and a not

inconsiderable part of Germany’s capacity for the production of war

materials had to be removed to the Government General for reasons of

security, the aim of the Defendant Frank necessarily was to put a stop

to any further transfer of labor. Over and above this, however, the

Defendant Frank had from the very beginning opposed all violent measures

in recruiting labor and solely for security reasons and in order not to

create new centers of unrest had insisted that no compulsory measures

were to be used and only propagandistic methods employed. That is

established by the testimony of the witnesses Dr. Bühler and Dr. Böpple,

and also by a large number of entries in the diary. In my presentation

of evidence I have already referred to several of them. Thus, for

example, the Defendant Frank said, among other things, on 4 March 1940:

“... I refuse to issue the decree demanded by Berlin

establishing compulsory measures and threatening punishment.

Measures that, viewed from the outside world, create a sensation

must be avoided under all circumstances. There is everything to

be said against the removal of people by violence.”

On 14 January 1944 he made a similar statement to the Commander of the

Security Police. I quote:

“The Governor General is strongly opposed to the suggestion that

police forces should be used in recruiting labor.”

These quotations could be amplified by many more.

I refer further to the evidence presented by me in respect to the

treatment of Polish workers in Germany. The Defendant Frank continuously

and repeatedly pleaded for better treatment of the Polish workers in the

Reich.

For the rest, the legal position in the matter of recruiting foreign

labor does not appear to be quite clear. I do not intend to go further

into the legal questions pertaining to this matter. The defense counsel

for the Defendant Sauckel will go into this matter fully and I just wish

to say the following:

In the literature of international law it is undisputed that the

conception of vital stress (Notstand) as recognized in criminal law

would, in international law, too, preclude illegality in the case of a

given violation of law. If the vital interests of a State are

endangered, that State may, these interests being preponderant,

safeguard them if necessary by injuring the justified interests of a

third party. Even those writers who deny the application of the “vital

stress” theory to international law—they are in the minority—grant the

threatened State the “right to self-preservation” and therewith the

right to enforce “necessities of state” even at the cost of the just

interests of other States. It is a recognized principle of international

law that a State need not wait until the direct threat of extinction is

at its very threshold. There can be no doubt that after the entry into

the war of the United States, with which for all practical purposes the

productive capacity and the military might of almost the whole world

were gathered together to overthrow Germany, the German Reich was faced

with a situation which not only threatened the State as such with

extinction but over and above that placed the bare existence of the

people in jeopardy. Under these circumstances the right of the State

leadership to make use of labor forces, even those in occupied

territory, in this defensive struggle had to be acknowledged.

In addition, the following should not be passed over: The Prosecution

alleges that many, if not most of the foreign workers were brought to

Germany by force and that they were then obliged to do heavy labor under

degrading conditions. However one may look upon the evidence on this

question, the fact cannot be ignored that there are hundreds of

thousands of foreign workers still living in Germany who were allegedly

deported thither by force. They refuse to return to their homes,

although no one now attempts to hinder them. Under these circumstances

it must be assumed that the force cannot have been as great, nor the

treatment in Germany as bad, as is alleged by, the Prosecution.

Another allegation refers to the closing of the schools. It may be left

out of account whether international law recognizes any criminal

classification which would make the closing of schools appear as a war

crime or a crime against humanity. In time of war this would seem to be

all the more unlikely as it is well known that schooling in wartime was

considerably reduced, not only in Germany, but also in many other

belligerent countries. There is all the less reason to investigate this

question more thoroughly, as the evidence has shown that the schools

were for the most part already closed when the defendant assumed office

as Governor General. During his whole period of office he left no means

untried to reactivate, not only the elementary and vocational, but also

the higher forms of school. In this connection I will only mention the

university courses which he initiated.

The Soviet Prosecution has presented as Exhibit Number USSR-335 a decree

issued by the defendant to combat attacks against German reconstruction

work in the Government General, dated 2 October 1943. There is no

question but that this decree setting up a drumhead court-martial is not

in conformity with what must be demanded of court procedure under normal

circumstances. However, this decree can only be judged correctly if the

circumstances which led to its promulgation are taken into

consideration.

In general it should first be said that the reconstruction work of the

administration of the Government General had to be carried on in a

difficult territory and under circumstances which must be among the most

difficult that have ever fallen to the lot of any administration. After

the collapse of the Polish State, the German administration found, so to

speak, a vacuum in which to organize and administer. In all spheres of

administration they had to start completely afresh. If, in spite of the

difficulties, they succeeded fairly quickly in repairing the war damage,

particularly in the communications system, then that is incontestably to

their credit.

The year 1940 was, however, to prove the only one in which the work of

restoration in the area of the Government General could be carried out

under fairly normal conditions. As the year 1941 began, the Germans

proceeded to concentrate their troops for action against the Soviet

Union and therewith initiated a period of immense strain for the

administration of the Government General. The Government General became

the greatest repair workshop and the greatest military transit territory

that history has ever known. This carried in its train an increasing

deterioration of the security situation. The resistance movement began

to reorganize on an intensified scale. But the menace inherent in the

security situation developed to a still more alarming degree when the

German armies were forced to arrest their progress in Russia and

when—after the catastrophe of Stalingrad—their march forward was

transformed into a general retreat. In the course of the year 1943, the

activities of the resistance movement and in particular of the numerous

guerrilla bands, in which thousands of lawless elements were grouped,

reached extremes that represented a danger to any kind of orderly

administration. The administration of the Government General was forced

again and again to deal with this matter. Thus on 31 May 1943 a service

meeting of the authorities of the Government General was held to deal

with the security situation. At that meeting the President of the Chief

Department Internal Administration felt obliged to state among other

things—I quote from the diary:

“... In their activities the guerrilla bands have revealed an

increasingly well-developed system. They have now gone over to

the systematic destruction of institutions belonging to the

German administration; they steal money, procure typewriters and

duplicating machines, destroy quota lists and lists of workers

in the communal offices, and take away or burn criminal records

and taxation lists. Moreover, raids on important production

centers in the country have multiplied, for instance, on

sawmills, dairies, and distilleries, as also on bridges, railway

installations, and post offices. The organization of the

guerrillas has become strongly military in character.”

In the course of the summer and autumn of the year 1943, the increasing

activities of the partisans and the improvement in their military

organization and equipment so endangered security in the Government

General that it might perhaps under the circumstances have been better

to turn over its entire administration to the appropriate army

commanders and to proclaim a state of emergency. It is indeed not

possible to describe conditions then existing in the Government General

as anything else but a state of war. It was the period when at any

moment the possibility had to be taken into account that a general

revolt would break out over the whole country.

All this notwithstanding, the Defendant Frank even then made every

effort under all circumstances to thwart any violent measures by the

Security Police and the SD. It was in order to exercise at least a

modifying influence on the Security Police and the SD and to have at

least some guarantee against excesses that the Defendant Frank agreed to

the order dated 9 October 1943 setting up a drumhead court-martial.

It is quite obvious from the content of this decree that its main

purpose was to serve as a general preventive. It was meant as a

deterrent to the guerrillas, and there can be no question but that in

this it was temporarily successful. For the rest, the evidence has shown

that even while this drumhead court-martial order was in operation, the

Boards of Pardon continued to act and that many sentences passed by the

drumhead court-martial were reversed by the boards.

In the course of the present Trial repeated mention has been made of the

report by SS Brigadeführer Stroop concerning the destruction of the

Warsaw Ghetto in the year 1943; Exhibit USA-275 (1061-PS). Both that

report and a number of other documents reveal that all the measures in

connection with the Warsaw Ghetto were undertaken exclusively on the

direct instructions of Reichsführer SS and Chief of the German Police

Himmler. I refer in this connection to the affidavit of SS Brigadeführer

Stroop of 24 February 1946, submitted by the Prosecution as Exhibit

Number USA-804 (3841-PS) and to the affidavit of the same date given by

the former adjutant of the SS and Police Leader of Warsaw, Karl Kaleske.

That is Exhibit Number USA-803 (3840-PS). These documents show quite

clearly that those measures, like all others within the competence of

the Security Police and undertaken on direct orders from either

Reichsführer SS Himmler, the Higher SS and Police Leader, East, or on

instructions from the RSHA, were carried out exclusively by the Security

Police and the SD and that the administration of the Government General

had nothing to do with them.

The Soviet Prosecution has also put in evidence as Exhibit USSR-93,

under Article 21 of the Charter, the Report of the Polish Government.

That report makes no distinction between the areas which were

incorporated in the Reich and the territories of the former Polish State

which were grouped together in the Government General. But particularly

in view of the fact that the report makes no substantial statements as

to the personal responsibility of the Defendant Frank, it does not seem

necessary to delve further into this voluminous document. Like the

Indictment itself, the report constitutes an accusation of a general

nature; it does not deal in detail with the results of investigations

and with evidence which might justify the conclusions drawn in the

report. The objections to be raised to the report must appear all the

more valid, since, to take only one example, in Appendix (1) of the

report directives for cultural policy are appended which obviously

purport to represent instructions given by the Governor General or his

administration. Actually, however, nothing of the kind is to be found

either in the _Official Gazette_ of the Government General or in any

other documents. The witness Dr. Bühler stated during his interrogation

that the administration of the Government General had never issued such

or similar directives. In consideration of this alone, it would seem at

most admissible to attach substantive probative value to this Exhibit

USSR-93 only insofar as the statements therein made are confirmed by

genuine documents and other unobjectionable evidence.

According to the Indictment, and in particular according to the

statements in the trial brief presented by the Prosecution, the

Defendant Frank is also alleged to be responsible for the

undernourishment of the Polish population. Actually, however, the

Prosecution is unable to produce any evidence to show that in the area

governed by the Defendant Frank either famine occurred or epidemics

broke out. The evidence has revealed on the contrary that the efforts of

the Defendant Frank in the years 1939 and 1940 were successful in

inducing the Reich to deliver no less than 600,000 tons Of grain. That

made it possible to overcome the food difficulties caused by the war.

It is true that in the following years the Government General

contributed in no small degree to the war effort by itself delivering

grain. But it must not be overlooked that these deliveries were made

possible by an extraordinary increase in agricultural production in the

Government General. And this was in its turn made possible by a

farseeing economic policy, especially by the distribution of

agricultural machinery, seed corn, and so on. Nor should it be forgotten

that the deliveries of grain by the Government General from the year

1941 onward also served to feed the Polish workers placed in Reich

territory and that in general these grain deliveries were utilized to

maintain the internal balance between the European economic systems. In

principle, however, the following should be said concerning this

question:

In a number of points of accusation the Prosecution has leveled

reproaches against the administrative activities of the Defendant Frank

in his capacity as Governor General without making an attempt to give an

even approximately adequate description of the general work of the

defendant and without pointing out its inherent difficulties. There can

be no question but that such an attitude transgresses the fundamental

rules of any criminal procedure. It is a recognized principle derived

from the criminal law principles of all civilized states that a uniform

natural process must be judged in its entirety and that its evaluation

must take into account all the circumstances of the case that are in any

way fit for consideration by the court when passing judgment. This would

seem to be all the more necessary in the present case, as the Defendant

Frank is accused of having pursued a long-term policy of oppression,

exploitation, and Germanization.

My Lords, if the Defendant Frank had in truth had any such intentions,

then he could certainly have attained his goal in far simpler fashion.

It would not have been necessary to issue hundreds of decrees every

year, decrees which for example for the year 1940 reached the

proportions of this volume that I hold here in my hand. The Defendant

Frank, from his first day of office, set himself to integrate the entire

economic policy in a manner which one can only term constructive.

Certainly he did this partly in order to strengthen the production

capacity of the German nation engaged in a struggle of life and death.

But at the same time there can be no doubt that the success of these

measures also benefited the Polish and Ukrainian peoples. I do not

intend to go into this matter in detail. I will only ask the Tribunal in

this connection to take notice of the report given by the Chief of

Government on the occasion of the fourth anniversary of the existence of

the Government General on 26 October 1943. I have included this report

in the document books I put in evidence. It is in Volume IV, Page 42.

The report gives a concise summary of the measures taken and the

successes achieved by the administrative acts of the defendant during

these 4 years in all fields of industrial economy, in agriculture,

commerce, and transport, in the finance and credit system, in the sphere

of public health, and so on. Only in consideration of all these facts is

it possible to form an approximately correct estimate of the whole

position. For the sake of completeness I will add that the defendant by

his administration succeeded in reducing the danger of epidemics—in

particular typhus and typhoid—to a degree which had been found

impossible in this area in the preceding decades.

If much of what had been achieved by the Defendant Frank in the

Government General was destroyed in the subsequent fighting, that can

certainly furnish no grounds for reproach against the general

administration, which had nothing to do with military measures.

My Lords, I am certainly not going to deny that in the course of the

recent war terrible crimes were committed in the territory known as the

Government General. Concentration camps had been established in which

mass destruction of human beings was carried out. Hostages were shot.

Expropriations took place; and so on. The Defendant Frank would be the

last to deny this; he himself waged a 5 year struggle against all

violent measures. The Prosecution has put in evidence, as Exhibit Number

USA-610 (437-PS), a memorandum which Frank addressed to the Führer on 19

June 1943. In this memorandum, on Page 11, he listed nine points in

which he sharply condemned all the evils which had arisen in consequence

of the violence practiced by the Security Police and the SD and of the

excesses committed by various Reich authorities, against which all his

efforts had proved unavailing.

These nine points are in the main identical with the points of

accusation against Frank. The content of the memorandum of 19 June 1943,

however, shows very plainly that the defendant denies responsibility for

these abuses. It reveals, on the contrary, quite clearly that neither

the defendant nor the general administration of the Government General

can be held responsible for the said evils but that the whole

responsibility must be borne by the institutions mentioned above, in

particular the Security Police and the SD, or the Higher SS and Police

Leader, East. If the Defendant Frank had had the instruments of power

wherewith to abolish the evils he condemned, it would not have been

necessary for him to address that memorandum to Hitler at all. He would

then himself have been able to take all necessary steps. In addition to

this the evidence has shown that that memorandum of 19 June 1943 was not

the only one addressed to the Führer on the matter. It is clear from the

testimony of the witnesses Dr. Lammers and Dr. Bühler and the

defendant’s own statements in the witness box that from the year 1940

onward he sent protests and memoranda at regular intervals of a few

months both to Hitler personally and to the Chief of the Reich

Chancellery. These written protests were invariably on the subject of

the violent measures taken and the excesses committed by the Higher SS

and Police Leader and the Security Police, including the SD. But none of

the protests met with success.

As can also be said on the basis of the evidence, the Defendant Frank

continually made suggestions to Hitler on the subject of improving

relations between the administration of the Government General and the

population. The memorandum of 19 June 1943 is also cast in the form of a

comprehensive political program. It includes, moreover, all the

essential points of protest contained in a memorandum presented in

February 1943 to the Governor General, at his own desire, by the leader

of the Ukrainian Chief Committee. This latter memorandum was put in

evidence by the Prosecution as Exhibit Number USA-178 (1526-PS). Such

suggestions were also consistently rejected by Hitler.

Under these circumstances it is pertinent to ask what else the Defendant

Frank could have done. Certainly he should have resigned. But that too

he did. He offered his resignation no less than 14 times, the first time

as early as 1939. His resignation was rejected by Hitler as often as it

was tendered. But the Defendant Frank did more. He approached Field

Marshal Keitel with the request that he be allowed to rejoin the Armed

Forces as a lieutenant. That was in the year 1942. Hitler refused his

consent to that too. These facts allow of only one conclusion, namely,

that Hitler saw in the Defendant Frank a man behind whose back he (with

the help of Himmler and the organs of the Security Police and the SD)

could carry out the measures he considered requisite for attaining the

aims of his power policy.

My Lords, when it became more and more obvious that Hitler and

Reichsführer SS Himmler were about to abolish the last remnants of a

State founded on law; when it became increasingly apparent that the

power of the Police knew no bounds and that a police state of the purest

water was in process of development, the Defendant Frank came forward

and addressed four great speeches to the German public with a last

appeal on behalf of the idea of a State founded on law. He did that when

Hitler stood at the summit of his power. He addressed this appeal to the

German public at a time when the German forces were marching on

Stalingrad and into the Caucasus, when the German Panzer Armies in

Africa stood at El Alamein, barely 100 kilometers from Alexandria. In

the course of the evidence I read some extracts from these great

speeches which the Defendant Frank made in Berlin, Heidelberg, Vienna,

and Munich. Those speeches contained a clear repudiation of every form

of police state and championed the idea of the State founded on law, of

the independence of the judiciary, and of law as such. These speeches

found a tremendous echo among lawyers, but unfortunately not in wider

circles. Nor in particular were they echoed by the men who alone would

have possessed the power to ward off the threatening catastrophe.

The consequences of this attempt to avert the extinction of the idea of

the State founded on law by a last great effort are well known. The

Defendant Frank was deprived of all his Party offices: he was dismissed

from his post as President of the Academy for German Law. The leadership

of the National Socialist Lawyers Association was conferred on the Reich

Minister of Justice, Thierack. Frank himself was forbidden by Hitler to

speak in public. Although the Defendant Frank again on this occasion

sent in his resignation as Governor General, Hitler refused to accept

it, as he had always done before. The reason for this, as given in a

letter from the Reich Minister and Chief of the Reich Chancellery to the

Defendant Frank, was that considerations of foreign policy had caused

the Führer again to refuse this latest request of Frank to be allowed to

resign. According to everything that has emerged from the evidence in

this Trial it may be looked upon as certain that it was not only, and

probably not even mainly, for such reasons that Hitler refused to accept

Frank’s resignation.

The decisive factor was obviously the consideration that it was better

policy not to let the Security Police and Reichsführer SS Himmler’s

other organs fulfill their appointed task openly, but rather to let them

continue their work under cover while maintaining a general civil

administration under the Governor General.

Naturally this open breach between the Defendant Frank, on the one hand,

and Hitler and the State Police system represented by Reichsführer SS

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

not fail to have repercussions on the position of the defendant in his

capacity as Governor General. Still more than before the various Reich

authorities now began to interfere in the administration of the

Government General. Above all, however, it was quite clear from the

summer of 1942 onward that the Higher SS and Police Leader, East,

together with the organs of the Security Police and SD subordinated to

him, took no more notice at all of any instructions issued by the

Governor General and the general administration.

Both in the Government General and in the Reich itself legal

institutions receded more and more into the background. The State was

transformed into an unadulterated police state, and developments took

the inevitable course which the Defendant Frank had foreseen and

feared—the course which on 19 November 1941 he had outlined at a

congress of the principal section chiefs and Reich group leaders of the

National Socialist Lawyers Association in the following words:

“Law cannot be degraded to a position where it becomes an object

of bargaining. Law cannot be sold. It is either there or it is

not there. Law cannot be marketed on the stock exchange. If the

law finds no support, then the State too loses its moral stay

and sinks into the depths of night and horror.”

THE PRESIDENT: We will begin again at 10 minutes past 2.

[_The Tribunal recessed until 1410 hours._]

_Afternoon Session_

THE PRESIDENT: Dr. Pannenbecker.

DR. OTTO PANNENBECKER (Counsel for Defendant Frick): Mr. President,

Gentlemen of the Tribunal:

The American Prosecution, through Dr. Kempner, has charged Defendant

Frick with criminal actions according to Article 6, Items a, b, and c of

the Charter. I should like first to examine the question as to whether

Article 6 of the Charter, with its list of criminal acts, is to be

considered as the authoritative expression of material penal law which

would lay down, in a manner irrevocably binding on, and not subject to

revision by the Tribunal, what actions are to be regarded as punishable;

or whether Article 6 of the Charter concerns a rule of procedure

defining the competence of this Tribunal for specific subject matters.

THE PRESIDENT [_Interposing_]: Perhaps it will be for the convenience of

the interpreters if I say that we might, as it is now nearly half past

2, sit without a break until 4 o’clock, when we rise.

DR. PANNENBECKER: The latter interpretation was implied in the

Prosecution’s presentation of the case by Sir Hartley Shawcross’ remark

that although Article 6 of the Charter fills a gap in international

penal procedure, the material penal law to be applied to the defendants

has already been previously standardized by positive laws. Part II of

the Charter, beginning with Article 6, is accordingly entitled:

“Jurisdiction and General Principles,” and it may be inferred therefrom

that Article 6 is intended to establish a ruling as to the competence of

this Tribunal as to procedure in specific groups of crimes.

Sir Hartley Shawcross’ statements were directed against the objection

that it is inadmissible and in contradiction with a basic legal

principle to punish someone for an act which had not yet been forbidden

at the time it was committed; an objection which has as a basis the

conception that the Charter has created new material penal law with

retroactive effect. It should be examined whether the prohibition of

retroaction of penal laws is a legal principle of such importance that

it should not be infringed. I need not state to this Court the reasons

why this legal principle found general recognition in all civilized

countries as a prerequisite and basic precept of justice.

In contrast to this, the Prosecution has in its speech charged the

defendants with the fact that they themselves had continuously

disregarded law and justice, and inferred from this that the defendants

in this Trial could not appeal to such a legal principle. I do not

believe, however, that such an argument can be decisive in this Trial.

The Prosecution has replied in the negative to the further question of

whether it would not have been right to pay back in the same coin and

not allow the defendants of this Trial any possibility at all to defend

themselves in a proper legal procedure. Such a course of simply

exercising the power of the victor over the defendants has purposely not

been assumed by the signatory powers for reasons presented in detail by

the Prosecution. On the contrary, Sir Hartley Shawcross has appealed to

the Tribunal to apply in this procedure—I quote—“the undisputed

principles of international custom.”

If, however, it is intended to proceed in such a manner, then an

examination must take place in keeping with the same principles of law,

to determine the question whether the deeds with which the defendants

are charged can be regarded as criminal acts for which punishment is

possible according to the recognized principles of international custom.

It is not, according to these principles, an argument if the use of a

legal principle as fundamental as the prohibition of retroaction in

penal law is in actual application to be made dependent on whether or

not the defendants concerned themselves with law and justice. The

decision of the signatory powers to subject, on the basis of

considerations which have been seriously weighed, the conduct of the

defendants to a proper trial recognizing all legal principles of

international custom, therefore signifies not only the observance of

legal procedure with all assurances of fair trial, but such a decision

by the signatory powers also signifies adherence to the fundamental

principles of a material guarantee of justice, of which the prohibition

of retroactive penal laws is one.

In this connection I should like to point out that the decreeing of the

retroactive validity of penal laws, when so ordered by the National

Socialist Government for certain individual cases, to which Dr. Stahmer

has already referred, shocked the entire civilized world. At that time,

the violation of such a principle of law was generally condemned as a

deplorable retrogression in civilization. I also ask the Tribunal to

recall that one of the first measures taken by the occupation powers for

deliverance from the National Socialist abuse of the law was to declare

void any laws which had a retroactive effect on the material penal

legislation.

In view of this situation there exist valid reasons, I believe, why

Article 6 of the Charter should, in accordance with its heading, be

regarded as a ruling on the jurisdiction of this Tribunal, all the more

so as the signatory powers have already and with so much emphasis

insisted on a renewed strict and uniform observance of the prohibition

against retroactive penal laws.

On the basis of such an interpretation, whereby Article 6 establishes

the jurisdiction of this Tribunal, it would be for the Tribunal by its

own examination not only to determine whether the charges on which the

Indictment is based are proved, but also to rule on the legal question

as to whether, for the facts established in each case by the

Prosecution, there exists a criminal law which makes punishment

possible. To revert in this way to provisions of material criminal law

in existence at the time the act was committed does not mean that it

would be impossible for this Tribunal to call the accused to account for

offenses which are punishable under all circumstances. There are,

however, a number of restrictions resulting from this which in the

opinion of the Defense it would be better to accept rather than violate

a principle so essential to just procedure as is the prohibition of

retroaction in criminal laws. I am therefore of the opinion that it is

entirely possible, and not incompatible with the necessity for just

expiation for war crimes, to interpret Article 6 in accordance with its

heading as a ruling on the jurisdiction of this Court, but not as new

material criminal law.[1] The next remarks concern themselves with the

conspiracy, a matter which has been dealt with by Dr. Stahmer to such an

extent that I can omit these pages. I continue now on Page 7 with the

summary.

The Charter does not impose the interpretation that a defendant is

responsible also for such acts of commission as exceed the measure of

his participation in the common plan. The wording of the Charter, “in

the execution of a common plan,” does not contradict the interpretation

that the Charter establishes liability for acts of commission which

remained within the scope of the said plan. To that extent the

assumption of liability for the actions of others complies with a demand

of justice, but beyond that it would violate essential legal principles.

The Defense therefore advocates the concept that, as far as the actions

of others are concerned, for which a defendant is to be made liable,

proof must be required that these actions, in the manner of their

execution, corresponded to the intention of the defendant. To give an

example:

The participation of a defendant in rearmament against the regulations

of the Versailles Treaty does not in itself justify the assumption that

that defendant also desired a war of aggression which was later on

planned by others in the further plan of restoring military power to the

German people.

I should now like to turn to the various categories of crimes of which

the Defendant Frick is accused, taking first of all the assertion of the

Prosecution that the defendant participated in the planning and

preparation of wars of aggression. With regard to the problem as to

whether a war of aggression is a criminal offense according to the

concepts of law for the period in question, I refer, in order to avoid

repetition, to the statements of Professor Jahrreiss, with which, in

behalf of the Defendant Frick, I fully concur.

By virtue of these convincing statements, there exists only one

possibility of punishing co-operation in a war of aggression as a

criminal offense capable of being perpetrated by individual persons,

namely, when, contrary to the statement of Sir Hartley Shawcross, the

Charter is applied as a standard of material penal law which has for the

first time defined, with retroactive effect, a war of aggression as a

criminal offense by individual persons. From the point of view of the

other interpretation, which regards Article 6 of the Charter as a

procedure regulating the jurisdiction of this Court, the Defense holds

that the deduction is cogent that the Court is indeed declared competent

to judge offenses against peace, but that the criminal guilt of the

individual defendants is not proved therewith because one condition for

this is lacking, namely, the possibility of establishing that the

defendants have offended against a principle of generally valid

international custom or a principle of national law which defined the

war of aggression at the time it took place and declared it punishable

as a crime of which a single individual could be guilty.

As it happens, the statesmen, during the period between the two World

Wars, have neglected to establish adequate measures of general validity,

by which it would have been made clear that anyone who, after the first

wholesale slaughter of peoples, organized a second World War, would go

about with a rope around his neck. The statements of the Prosecution,

that such rules of international law are necessary, appear to be

absolutely convincing, but the fact cannot be overlooked that such rules

were nevertheless not created by the statesmen of that period at the

right time. A missing rule of law, fashioned to fit a special case,

cannot be replaced subsequently by an order of procedure or by the

sentence of a Court whose task is to apply the general law, but not to

create it for a single special case.

I shall now turn to the actual statements of the Prosecution concerning

the participation of the Defendant Frick in the planning and preparation

of wars of aggression.

The Prosecution sees such activity already in Frick’s earliest

co-operation with the Party, which he continued until the year 1933, in

order to bring Hitler to power. The Prosecution appraises in a similar

way the subsequent activity of Frick after the taking over of the

Government by Hitler, when he helped to consolidate the power of the

Party and its leaders through measures of domestic policy, especially by

his participation in the legal measures by which armed forces were

created, and finally by his collaboration in measures by which direct

preparations were made in case of war.

Proceeding from the interpretation that only deliberate participation by

the defendant in the preparation of a war of aggression is of penal

significance, I shall not take up the question as to whether the

Prosecution has proved that Frick was aware that his collaboration in

the advancement of the Party and its aims constituted a preparation for

war, and intended it as such, and therefore helped to bring the war

about.

In this connection the Prosecution has made the assertion that Hitler

and his Party from the very beginning openly pursued the aim of bringing

about a change in Germany’s situation in foreign politics by means of

war. On the basis of this statement the Prosecution has declared that no

special proof is necessary that in working for Hitler and his Party each

of the defendants also knowingly collaborated in the preparation of a

war of aggression.

As proof of the fact that Hitler and his Party had from the beginning

planned a war of aggression, the Prosecution refers to the Party

Program, which names as one of its aims the abolition of the Treaty of

Versailles. No word is said, however, in the Party Program that this aim

should be achieved by force of arms. In the Party Program, as the

testimony of the Defendant Von Neurath has also shown, among other

things, there is nothing to prove an intention existing from the very

beginning to wage a war of aggression. Nor is anything different found

in the other official publications of the Party from the time previous

to Hitler’s assumption of the Government. Because as the Party did not,

on the basis of its official publications, reveal any intention of

bringing about the revision of the Versailles Treaty by force of arms,

it was even before 1933 authorized outside the territory of the Reich,

as for example in 1930 in Danzig, when it received the sanction of the

then High Commissioner of the League of Nations and of the Polish

Resident General.

From the time of his assumption of power on 30 January 1933 Hitler, as

responsible head of the Government, adopted a quite unequivocal attitude

with regard to the ways and aims of his foreign policy, both in official

speeches and discourses as well as in private conversations.

Unchangingly, and upon every occasion that presented itself after his

assumption of power, he stressed his absolute desire for peace and his

abhorrence of war, and he always defended this attitude with convincing

reasons. He repeated again and again that he intended to obtain certain

revisions of the Versailles Treaty by peaceful means only. I need not

repeat the quotations to that effect from Hitler’s speeches, which were

read by the Prosecution to prove how Hitler deceived the world, and the

people he ruled, by his peace talks. And the world, including the German

people, took these speeches which he, as responsible head of the

Government, made again and again, quite seriously. In the face of that,

warning voices which at an early stage were convinced that Hitler wanted

war, remained a hopeless minority throughout the world.

The Prosecution has repeatedly alluded to this world belief which took

Hitler’s assertions of peaceful intentions seriously, and the best proof

of this delusion about peace even among the foreign statesmen, who also

knew the Party Program, would certainly appear to lie in the fact that

these statesmen neglected to so vast an extent to arm against Hitler’s

war of aggression, in which nobody in Germany and in the world believed

seriously except those who were directly initiated into Hitler’s most

secret plans. From the Party Program and from isolated wild speeches

made before 1933 during the period of parliamentary opposition, it is

not possible to prove a continuous preparation for a war of aggression

since the twenties, which is alleged to have been discernible to anybody

who took a glance at the Party Program.

The Prosecution contends further that even if the warlike intentions

were not discernible in a general way at first, the intention of Hitler

to prepare a war of aggression must have been clearly visible to the

Defendant Frick on account of the duties which he had to fulfill after

30 January 1933 in his capacity as Reich Minister of the Interior. These

duties included measures for the strengthening of the internal political

power of Hitler and his Party. The Prosecution referred in this

connection to the collaboration of Frick in the legal decrees by means

of which the opposition against Hitler’s system of government was

destroyed in parliament and in the country; further, to the legislative

measures which eliminated real self-government in the cities and

communities, and to legislative and administrative decrees by which

opponents of the National Socialist system were excluded from taking any

part in the business of the State and in economic life.

The Prosecution has submitted that without these measures Hitler could

not have conducted another war, for the beginning of which the complete

destruction of opposition in the country was said to be a necessary

prerequisite—particularly the establishment of Hitler’s absolute

dictatorship. Yet in all the measures I have enumerated, a direct

connection with the preparation for war is lacking. For these measures

had equal meaning and significance, unconnected with a subsequent war,

merely as projects of a National Socialist domestic policy. It has not

been proved that beyond that the Defendant Frick was informed of

Hitler’s more far-reaching plans, namely, after consolidating his power

at home to pursue the aims of the Party’s foreign policy not by peaceful

but by military means.

By establishing retrospectively that the strengthening of Hitler’s inner

political authority was a necessary condition for his intentions for war

as revealed later, nothing is achieved unless proof is forthcoming that

Hitler had from the beginning aimed at power in the domestic sphere only

as a first step toward the waging of wars, and that Frick was aware of

this when he took part in the measures of domestic policy of which he is

accused. Otherwise, as purely domestic measures, they do not come under

the jurisdiction of this Tribunal according to the provisions of the

Charter.

But there is no such evidence, and it is much rather to be assumed that

Frick, as a typical official connected with domestic politics,

considered his measures as absolutely independent acts which had nothing

whatsoever to do with the solutions by force of questions of foreign

policy. Nor can another view of the situation be derived from the

measures dealing directly with Germany’s rearmament, that is, the

reintroduction of general conscription and the occupation of the

demilitarized zone of the Rhineland. In his capacity as Reich Minister

of the Interior, Frick issued the orders of the civil administration for

the mobilization of men liable for military service, and consequently he

himself also signed the Armed Forces Law.

Yet even these measures in themselves were not to be recognized as

preparation for a war of aggression. The reintroduction of compulsory

military service and the assumption of military sovereignty over the

demilitarized Western Zone were explained by Hitler himself, to his

collaborators and the world, by arguments whose soundness was then

widely accepted, and after the first shock many foreign statesmen still

believed in Hitler’s well-founded assurances of peace, and advocated the

opinion that there was no reason to fear any belligerent intentions on

the part of Hitler.

To be sure, Hitler personally declared to his Commanders-in-Chief on 23

November 1939 that he had created the Armed Forces in order to make war.

I refer to Document 789-PS; Exhibit Number USA-23. But Hitler previously

cleverly obscured this intention by another argument which at that time

still found credence in Germany and abroad, and—as proved by the

evidence—even those collaborators in his own Cabinet who had not been

initiated into his secret plans believed in it.

Thus it is that several defendants refer to the fact that they approved

of the reconstruction of the German Armed Forces in the face of the

provisions of the Versailles Treaty, but that they did not want a war

and did not consider that by their collaboration they were participating

in the planning of a war of aggression. As for the Defendant Frick, the

view of the defense is that there is no proof that Hitler had informed

him of his plans for war, and therefore his collaboration in the

measures concerned with the reconstruction of the German Armed Forces

cannot be charged against him as intentional collaboration in the

planning of wars of aggression. A similar situation arises with regard

to the defendant’s activity in organizing the civil administration in

general for the eventuality of war, a task entrusted to the defendant as

Plenipotentiary for Administration of the Reich by the second Reich

Defense Law dated 4 September 1938.

I beg to point out again that the position of Plenipotentiary for

Administration of the Reich was created only by this second Reich

Defense Law of 4 September 1938, and thus was not included in the first

Reich Defense Law of 21 May 1935.

To be sure, long before, even before 1933, experts from the various

ministries held conferences dealing with the subject of Reich defense,

meeting at irregular intervals after 1933 as the Reich Defense

Committee, as shown in the documents submitted by the Prosecution. These

meetings had nothing to do with an agreement to wage a war of

aggression. They dealt with general questions of Reich defense, as is

customary also in other countries. By the Reich Defense Law of 21 May

1935, the organization for Reich defense was more closely co-ordinated,

particularly by the appointment of a Plenipotentiary for War Economy,

and at his interrogation the Defendant Schacht explained in detail that

the purpose in creating that position was not preparation for a war of

aggression (according to the duties and regulations to be found in the

first Reich Defense Law) but the organization of the economy for defense

in the event of a war of aggression by other states.

The same holds true with regard to the position of Plenipotentiary for

Reich Administration as created by the second Reich Defense Law of 4

September 1938, which was conferred on the Defendant Frick by virtue of

his position as Reich Minister of the Interior. This position signified

the co-ordinated establishment of the entire civil administration for

the purpose of Reich defense. Regardless of whether, according to

documents which have been submitted to the Tribunal, Hitler already

wanted war at the time when he authorized the second Reich Defense Law,

it is nevertheless relevant for the defense of the defendant whether

Frick at that time was able to recognize the aggressive intentions of

Hitler from the law itself and from his preliminary work thereon or from

other evidence or information which was communicated to him then. From

the law itself it cannot be discerned that Hitler’s intention was to use

it in the sphere of civil life as an instrument of preparation for a war

of aggression.

The kind of tasks which were given to the Defendant Frick in his

capacity as Plenipotentiary for Reich Administration had to do merely

with the concentration of domestic administration of Germany in case of

a possible war or threat of war, and nothing else can be seen from

Document Number 3787-PS (Exhibit Number USA-782), which was submitted

subsequently.

The law is so formulated that it always refers only to the defense of

the Reich in case of war. It speaks about the “state of defense” and

mentions the case of a “surprise threat to the Reich territory,” in the

event of which certain measures must be taken. Beyond this the law does

not vouchsafe any hint, which would be in keeping with Hitler’s

oft-repeated principle not to divulge any more of his plans than the

person concerned had to know for his own work—a principle which he

strictly adhered to even with his closest collaborators. In view of this

principle it should not be assumed, nor has it been at all proved, that

when the order for this law was given to the Ministry of the Interior

any other information was imparted than the necessity for taking

precautionary measures, by concentrating the full strength of the

domestic administration of the country, against a surprise threat to

Reich territory through a possible attack by other states.

It is not necessary for me to state in detail that such a measure cannot

be considered as a premeditated preparation for a war of aggression when

it had been explained to the competent authorities of the domestic

administration that it was essential for the defense of the Reich

against the threatening attack by another state. Hitler knew very well

how to hoodwink all those who had no need to know about his secret

plans, yet nevertheless should understand the reasons for the armament

and the organization of the state ordered by him for the eventuality of

war.

I will deal now very briefly with some further documents bearing on the

activity of the Defendant Frick as Plenipotentiary for Reich

Administration. Frick, in his speech of 7 March 1940, referred to this

position—Document Number 2608-PS, Exhibit Number USA-714—and stated

that the planned preparation of the administration for the possible

event of war had been already effected during peacetime by the

appointment of a Plenipotentiary for Reich Administration. This speech

therefore merely confirms that which is already revealed by the text of

the law. The same applies to Document 2986-PS, Exhibit Number USA-409,

an affidavit by the defendant to the same effect. Therefore, according

to this law, the position of the Plenipotentiary for Reich

Administration, combined with the appointment of a Plenipotentiary for

Economy and the post of Chief of the OKW, cannot be described as a

“triumvirate” holding governmental authority in Germany. Nothing has

ever become known either inside or outside Germany of a government by

such a triumvirate, and the witness Lammers has also referred to the

strictly subordinate tasks performed by these persons by means of

ordinances—tasks which had nothing to do with the preparation of a war

of aggression.

Another field of the defendant’s activity is likewise appraised by the

Prosecution as participation in preparation for a war of aggression,

namely, Frick’s work for the Association for Maintaining Germanism

Abroad. I refer to Exhibit Number Frick-14 and Document Number 3258-PS,

the latter submitted as Exhibit Number GB-262. Both documents reveal

that Frick supported the said association as a union for the fostering

of German cultural relations abroad and promoted its cultural efforts.

It cannot, however, be gathered from the documents that Frick engaged in

any capacity whatsoever for the furtherance of the aims of a so-called

“Fifth Column” abroad. Another document from which the Prosecution

deduced the approval of the policy of aggressive war by Frick is the

affidavit of Messersmith, Document Number 2385-PS, Exhibit Number

USA-68. This affidavit has been characterized by several defendants as

inaccurate, and the Defendant Schacht in particular showed at his

examination that in essential points it cannot be correct at all. The

Prosecution was not able to produce the witness for cross-examination. I

object on behalf of Frick against any use of the affidavit, all the more

so since an additional clarifying interrogation of the witness through a

written questionnaire only led to the result that the witness, by using

general phrases, avoided giving concrete answers to the questions put to

him. The answers to the questionnaire show plainly enough that

Messersmith cannot make concrete statements at all and that in his

affidavit he obviously was considerably deceived himself as to the

extent of his memory.

I do not believe that his affidavit, which has been refuted in essential

points, can be made use of for passing legal judgment. As to the

question whether the Defendant Frick participated in conscious

preparation for a war of aggression, the Prosecution further submitted

Document D-44, Exhibit Number USA-428. From this document it is seen

that the Reich Ministry of the Interior is supposed in the year 1933 to

have issued a directive that official publications were not to be drawn

up in a form which might enable people abroad to infer an infraction of

the Versailles Treaty from such publications. This document does not

reveal whether by these directives actual treaty violations were to be

masked or whether it was only a question of avoiding the appearance of

treaty violations.

The same problem applies to Document 1850-PS, Exhibit Number USA-742.

This contains the minutes of a conference between the Leadership of the

SA and the Reich Defense Minister, who proposed to the SA in 1933 that

budgetary funds of the Reich should be set aside by the Reich Ministry

of the Interior for the military training of the SA. The document does

not throw any light upon the attitude of the Reich Ministry of the

Interior toward this proposal, and even if it had accepted it, this

again would have proved only that the Reich Ministry of the Interior

furthered the restoration of the Armed Forces, a fact which anyhow is

already proved.

Thus, none of these documents furnishes proof that the Defendant Frick

recognized as preparation for a war of aggression the measures ordered

by Hitler as necessary for the defense of the Reich.

It is true that during the war, in 1941, a few days before the outbreak

of the war with the Soviet Union, a conference took place between the

Defendant Rosenberg and representatives of various ministries concerning

measures in case of a possible occupation of parts of the Soviet Union.

This is shown in Document 1039-PS, Exhibit Number USA-146, Rosenberg’s

report concerning these discussions, in which it is stated that

negotiations took place with “Reich Minister Frick (State Secretary

Stuckart).” This parenthesis means that the Reich Ministry of the

Interior was represented in these negotiations by State Secretary

Stuckart, therefore that Frick did not personally participate in the

negotiations. As the negotiations took place only a few days before the

beginning of the war in the East, it is not proved by the document that

Frick himself was informed about the negotiation before the beginning of

the war which, as it is generally known, was afterward proclaimed by

Hitler as a necessary measure of defense against an imminent attack by

the Soviet Union. It has been made clear by abundant evidence in this

Trial how far Hitler kept his true aggressive intentions secret, and how

well he knew how to cover up the true aim of all his political measures

for years with thousands of convincing reasons to justify the individual

measures of his policy of aggression.

There was a very small circle of collaborators whom Hitler informed

about his war plans, but this circle was not selected according to the

position of the person concerned in the Cabinet, or according to his

position in the Party hierarchy, but exclusively from the point of view

of whether it was necessary for the person concerned, with respect to

his own tasks in the field of preparations for the war, to know the

aggressive character of Hitler’s general policy or even his detailed

plans of aggression. Document 386-PS, Exhibit Number USA-25, shows how

systematically the principle of secrecy was kept, even as regards the

older members of the Party and the administrators of important

departments in the Reich Cabinet. Whoever, such as the Minister of the

Interior, had merely to carry out measures within the framework of

preparations for war which could well be similar to tasks of a purely

defensive character was, in accordance with Hitler’s principle, not

informed of the latter’s aggressive intentions. For this reason, the

presence of the Defendant Frick is not shown in even a single one of

these secret conferences in which Hitler informed a circle of selected

men about his plans for foreign policy and his war aims. In the Document

386-PS just mentioned, Hitler especially emphasized and gave reasons for

the exclusion of the Reich Cabinet as a body to which such plans should

be made known.

In another record concerning a similar conference—Document L-79,

Exhibit Number USA-27—the additional principle is laid down that no one

should be told anything concerning the war plans who does not need to

know these plans for his actual work.

Frick’s name is not only missing from the list of those present at

Hitler’s conferences on his policy of aggression which took place before

the war, but the same applies also to the numerous conferences

concerning Hitler’s further war aims and aggressive intentions which

were held during the war. The Defendant Frick was no more informed of

the later attacks or included in their preparation, as is shown by the

list of those present at Hitler’s lectures concerning his plans, which

have in part been submitted here.

Frick, purely an expert in domestic administration who was not

considered competent for military questions and questions of foreign

policy, was deemed good enough to organize the civilian administration

for the eventuality of any possible war, but in Hitler’s opinion, his

foreign policy and military plans were none of Frick’s business.

However, the Prosecution asserts further that after the conquest of

foreign territories and their occupation, the Defendant Frick regulated

the administrative policy in those territories and that he is

responsible for it. The Prosecution considers this activity, of the

defendant, according to Article 6, Letter (a) of the Charter, as

“participation in the execution of wars of aggression.” According to the

submission of the Prosecution, Frick exercised an over-all control of

the occupied territories, especially in his capacity as chief of the

Central Office for the occupied territories. On the basis of the same

function, he is deemed to be responsible for all War Crimes and Crimes

against Humanity which were committed in the occupied and incorporated

territories before and during the war, up to his dismissal as Reich

Minister of the Interior on 20 August 1943.

It is a question of legal interpretation whether the activity in the

administration of occupied territories, pursuant to Article 6, Letter

(a) of the Charter, is to be considered as the “execution of wars of

aggression,” or whether criminality comes into consideration only under

the point of view of crimes against the rules of war or against

humanity. In deciding this question it appears important to me that it

is not one of the tasks of an official of a civil administration to

examine, after the conclusion of military operations, whether it is a

case of legal or illegal occupation according to the standards of

international law. An obligation for such an examination would be an

exaggerated demand to make of the department of the civil administration

or the administrative chief, whose activity cannot be described as

illegal on the grounds that the territory administered by him had been

annexed a short or even long time ago in violation of the regulations of

international law. There is no obligation for such examination in the

practice of civil administration. The Charter moreover does not demand

such an interpretation because, when naturally construed, the military

operations themselves might be understood to constitute an execution of

wars of aggression, but not the later civil administration of conquered

territories.

The punishment of crimes which occurred in the administration of the

occupied territories would not be made impossible through such an

interpretation. In any case these crimes are subject to punishment as

Crimes against Humanity or against the rules of war according to the

Charter. And now mention must be made of those territories in particular

for which the Defendant Frick bears a responsibility.

First of all there are the territories which were incorporated in

accordance with constitutional law into the commonwealth of the German

Reich, which are therefore called “incorporated territories.” By their

constitutional incorporation these territories came under the

administration of the Reich, but only to that extent did they come under

the authority of the Reich Minister of the Interior, in that the

Defendant Frick bears the constitutional responsibility of a minister

for the internal administration of these territories up to 20 August

1943. In the East, this mainly concerned the territories of West

Prussia, Posen, and Danzig, in other words, the so-called returned

Eastern territories which belonged, until the Versailles Treaty, to the

commonwealth of the German Reich. In the East, the Memel district

received the same constitutional treatment; in the West, the

Eupen-Malmedy district; and in the Southeast, the Sudetenland.

Furthermore the country of Austria was incorporated into the

commonwealth of the German Reich. For all those territories Frick has a

share in the laws and administrative measures brought about by the

incorporation. He bears the usual responsibility of a Minister of the

Interior for the domestic administration of these territories up to the

time of his dismissal in August 1943. For the territory of Bohemia and

Moravia on the other hand there existed a special Protectorate

Government, which was described as autonomous in the decree concerning

the establishment of the Protectorate—Document 2119-PS—and was

therefore not controlled by the Reich Ministry of the Interior. In a

similar way, an administration not dependent on the Reich Ministry of

the Interior existed in the Polish territories, which were collectively

designated “Government General” and were put under the jurisdiction of a

“Governor General.” In contrast to the so-called “incorporated Eastern

territories,” the Reich Ministry of the Interior had no right to issue

orders or to handle administrative matters in the Government General, as

can be seen from Document 3079-PS which contains Hitler’s decree

concerning the administration of the occupied Polish territories. The

same appears from numerous other documents, among them Document

USSR-223, the Frank diary, in which he states that no Reich central

offices are authorized to intervene in the government of his territory.

The same applied to all other occupied territories for which a special

administration was established under any legal form. These separate

administrations were not dependent on the corresponding departmental

ministries in the Reich, but were under the jurisdiction of the

administrative chief for the corresponding territories, who was himself

directly subordinate to Hitler.

This applies to the occupied Soviet Russian territories, the entire

administration of which was under the jurisdiction of a Reich Minister

for the Occupied Eastern Territories. The same applies to Norway, where

a Reich Commissioner was appointed. In a similar way, a Reich

Commissioner was appointed for the Netherlands, who was also independent

of the Reich Ministry of the Interior and was directly subordinate to

Hitler. In Luxembourg, Alsace, and Lorraine, there were chiefs of civil

administrations who were also not dependent on the Reich Ministry of the

Interior, while in Belgium and northern France there was a military

administration of which the same was true.

In the same way the administrative chiefs of the territories which were

occupied in the Southeast of Europe were completely independent of the

Reich Ministry of the Interior. For part of the occupied territories

there exists, in the decrees issued at the time concerning the creation

of a separate civil administration, a stipulation that the Reich

Minister of the Interior was designated the central agency, and from

this formulation the Prosecution has deduced a responsibility of the

Defendant Frick for the administration of all the territories, as is

Stated in the Indictment.

The actual tasks of the central agency can be seen from the order

concerning the establishment of a central agency for Norway—Document

3082-PS, or Number 24 in the Frick document book. The witness Dr.

Lammers has given a further explanation of the tasks. At that time it

was the primary task of the central agency to put personnel at the

disposal of the chiefs of the civil administrations in the occupied

territories on request. Therefore, if a civil official was needed for

any district, the administration of the district concerned applied to

the central agency in the Reich Ministry of the Interior, which then put

some official from the Reich at the disposal of the chief of the civil

administration. The Reich Ministry of the Interior was especially fitted

for this, as it had at its disposal numerous officials of the domestic

administration in Germany.

But the transfer of an official from his own department to another

office, which will alone give orders to that official from that moment

on, does not establish responsibility for the further activity of that

official in his new department, to whom the Reich Ministry of the

Interior could issue no orders whatsoever. To take as an example: If the

Minister of Justice transfers one of his officials to the Foreign

Minister, naturally only the Foreign Minister is responsible for the

further activity of this official. This activity of the central agency

therefore does not justify the assumption of responsibility by Frick for

the administration of the occupied territories.

The requisitioning of officials for the occupied territories was

concentrated in the Reich Ministry of the Interior. That is, as the

examination of the witness Lammers indicated—and I quote from the

above-mentioned Document 3082-PS—“the unified co-operation adapted to

the needs of Norway, of the supreme Reich authorities with one another

and with the Reich Commissioner.”

In like manner, the hearing of evidence for the Defendants Rosenberg,

Frank, and Seyss-Inquart, who functioned as chiefs of civil

administrations in the occupied territories, has on no occasion revealed

any co-operation of any kind with the Defendant Frick either in his

capacity of Reich Minister of the Interior or Director of the Central

Agency in this Ministry.

Now, the Prosecution has referred to several documents in order to prove

that the Defendant Frick exercised extensive control over all occupied

territories. Actually, however, those documents do not reveal an

administrative activity of any greater extent than I have just stated.

Document 3304-PS gives proof of an administrative activity for the

incorporated Eastern Territories. This coincides with my statement that

the incorporated Eastern Territories, in their internal administration,

were subject to the Reich Ministry of the Interior by virtue of their

constitutional incorporation into the German Reich. The document,

however, bears no reference to the administration of the Occupied

Eastern Territories, that is, the Government General or to the occupied

Soviet Russian territories.

The other document submitted, 1039-PS, Exhibit Number USA-146, proves

the transfer of administrative personnel from the department of the

Reich Ministry of the Interior to the Reich Minister for the Occupied

Eastern Territories, a typical task of the Central Agency which I have

already discussed. The Prosecution has submitted further documents which

reveal that the Reich Ministry of the Interior had a hand in the

bestowal of German citizenship. Even this does not, however, prove any

administrative authority of the Defendant Frick for the occupied

territories, but merely a typical activity of a Minister of the Interior

whose department is competent for the general regulations concerning

German citizenship, including cases where persons living outside the

Reich territory are involved. This activity of the Minister of the

Interior can also furnish no proof of an extensive administrative policy

and a general responsibility of the Defendant Frick for the

administration of the occupied territories. In particular, in the

occupied territories which were not incorporated into the Reich

territory, Frick had no authority or competence whatsoever as far as the

tasks of the Police were concerned.

Hitler directly commissioned Himmler to carry out police work in the

occupied territories—see Document 1997-PS, Exhibit Number USA-319,

Hitler’s decree concerning police security measures for the Eastern

Territories, for which Himmler was directly responsible. The same is

revealed by Document 447-PS, Exhibit Number USA-315, a directive of the

OKW dated 13 March 1941, to the effect that the Reichsführer SS in the

Occupied Eastern Territories is charged with special duties in the

execution of which he will act independently and on his own

responsibility. The same applies to the police tasks in the other

occupied territories, which were assigned either to the Reichsführer SS

Himmler or to the SS and police leaders who took their orders only from

Himmler, although in many cases they were ostensibly assigned to the

civil administrative chief in question, such as for example the Governor

General in Poland (see excerpt from Frank’s diary in the Frick document

book under Number 25, also USSR-223). In no case, therefore, were police

tasks in the occupied territories under the Defendant Frick’s

jurisdiction. Consequently, the Defendant Frick bears no responsibility

for crimes against the laws of war and against humanity in the occupied

territories, since in these territories he could neither order crimes

nor prevent them.

Concerning the territory of the German Reich I must now examine the

claim of the Prosecution as to the responsibility of the Defendant Frick

for all the police measures, including the Gestapo, as well as for the

establishment and administration of concentration camps. May I first

refer to the documents submitted by me in evidence, which reveal that

the Police, including the political police, was in 1933 still the

concern of the individual states within the Reich, such as Prussia,

Bavaria, _et cetera_.

In Prussia, the Secret State Police (Gestapo) and the concentration

camps were established and administered by Göring in his capacity as

Prussian Minister of the Interior. The tasks of the political police

were then transferred by a Prussian law, dated 30 November 1933, to the

office of the Prussian Prime Minister, which was also administered by

Göring. So when the offices of the Reich and the Prussian Minister of

the Interior were merged, in the spring of 1934, Frick did not assume

the tasks of the political police which still remained incumbent upon

Göring in his capacity as Prime Minister.

A similar regulation prevailed in the other states, where Himmler was

gradually given the duties of special deputy for the political police.

During this period, the Reich Minister of the Interior had only the

right of so-called “Reich supervision” over the states, which Frick made

use of for the enactment of general instructions and legal ordinances;

and this is the only point where Frick, as Minister of the Reich, could

exercise any influence on the affairs of the political police and

concentration camps.

Frick made use of this possibility, in accordance with his basic

attitude as confirmed by the witness Gisevius, to prevent and repress

arbitrary actions by the political police as far as was in his power in

the circumstances then prevailing. He endeavored, by the enactment of

provisions of law and procedure, to restrict the arbitrary practices of

the political police in the states.

I refer to Document 779-PS, submitted by me as Exhibit Number Frick-6.

This is a decree dated 12 April 1934, containing restrictive provisions

of this sort under a significant preamble—which I quote: “In order to

remedy abuses occurring in the infliction of protective custody.” This

is followed by directives to the governments of the states forbidding

the application of preventive custody in numerous cases where it had

previously been improperly ordered by the Gestapo. In this struggle of

Frick against arbitrary actions by the political police in the states,

the police had, it is true, ultimately come out better because they were

under the direction of Göring and Himmler, with whom the “bureaucrat”

Frick—as Hitler disdainfully called him—could not compare as regards

influence in the Party and State. For that reason the political police

in the states in practice frequently disregarded Frick’s ordinances. But

Frick did not stand by idly as long as there was reason to hope that

through his intervention the unrestrained practices of the political

police in the states could be directed into orderly and legally

regulated channels. I refer to Document 775-PS, Exhibit Number Frick-9,

a memorandum from Frick to Hitler which clearly and unequivocally calls

a spade a spade, mentioning legal insecurity, unrest, and embitterment,

and severely criticizing individual cases of misuse of the right to

order protective custody by the political police of the states. Here I

would insert that the same document also proves that in the struggle

over the churches, the defendant clearly took their side. This is also

proved by Exhibit Number Neurath-1.

In his testimony the witness Gisevius refers to an additional memorandum

which he himself drew up for Frick as a further attempt to restrain

through severe criticism and by suggestions for legal control the

arbitrary practices of the political police in the states. All of these

attempts failed because Frick’s political influence was too

insignificant and he could not assert himself against Göring and

Himmler, and because at the time Frick himself could not yet see that

the practices of Göring and Himmler were essentially in harmony with

what Hitler actually wanted himself. Thus the documents submitted by the

Prosecution, taken in conjunction with the evidence offered by the

Defense, show that in the domain of the political police and in ordering

protective custody, Frick had a certain competency at a time when the

police was still a service administered by the individual states. This

evidence also shows that during that time Frick’s jurisdiction was very

limited and it further shows that Frick, acting within the bounds of his

competency, took action solely in order to intervene against the terror

and arbitrary actions of the Gestapo through general instructions and

through repeated complaints in individual cases, so that the conclusion

is not justified that Frick in any way actively participated in the

Gestapo’s measures of terror and violence.

At a later period the legal situation changed. With Hitler’s decree of

17 June 1936—Document 2073-PS, Document Book Frick Number 35—police

tasks for the entire Reich were combined and uniformly transferred to

Himmler, whose department was formally made a part of the Ministry of

the Interior under the title “Reichsführer SS and Chief of the German

Police in the Reich Ministry of the Interior.”

The question now is whether this new regulation conferred on Frick, in

his capacity as Reich Minister of the Interior, any authority of command

or any right to issue instructions which could be enforced with regard

to the political police, its offices and its functionaries. When

Himmler, in accordance with his own wish, which he could gratify because

of his influence on Hitler, was appointed Police Chief for the entire

Reich, there did not exist in Germany a police or security ministry,

properly speaking.

This is the reason why the uniform direction of the police through

Himmler in person was formally attached to the Reich Ministry of the

Interior. But Himmler wanted to be more than a department chief in the

Ministry of the Interior. Therefore a position entirely novel in German

administrative law was created for him and his purposes. The entire

sphere of the police was separated from the rest of the activities of

the Ministry of the Interior and placed under Himmler’s special

jurisdiction under a newly created title of office which, as a

government office, contained the words “Reichsführer SS,” thereby making

it possible for Himmler to carry out political police tasks under a

title of office characterizing him as Reichsführer SS and in that

capacity giving him independence from any instructions issued by a

minister of state.

In order to accentuate further the independence of his office within the

bureaucratic hierarchy as well, Himmler was given the additional right

from the very beginning to represent police matters before the Cabinet

independently and on his own responsibility, like any Reich minister;

this is also shown in the decree concerning his appointment, Document

2073-PS. This decree is a typical example of the overlapping of

competencies which Hitler favored to excess in his government system.

Himmler became part of the Ministry of the Interior and, as an official

of the Ministry of the Interior, was formally bound to abide by

instructions of the Minister. However, he was also an independent Chief

of Police with the right to represent before the Cabinet on his own

responsibility matters pertaining to the Police, thus excluding Frick in

that respect. In addition to that, his orders simultaneously carried the

authority of the Reichsführer SS, in which Frick had no authority at all

to interfere.

In actual effect this involved arrangement also enhanced the tremendous

influence of Himmler on Hitler. In keeping with his convictions, and to

safeguard a well-ordered state apparatus, Frick repeatedly tried to

intervene through general instructions intended to restrain the

arbitrary acts of the political police. As late as 25 January 1938 he

tried through a decree to curtail the admissibility of protective

custody and he forbade it in a number of cases of improper application.

I refer to Document 1723-PS, Exhibit Number USA-206, an extract of which

under Number 36 appears in the Frick document book. He prohibited

protective custody in lieu of, or cumulative to, a legal penalty,

forbade its application by police authorities of the intermediate or

subordinate levels, and gave orders that the accused should be heard

before arrest. He decreed periodical examination of the reasons for the

continuance of confinement and on principle forbade the protective

custody of foreigners, whom the Police had authority only to expel from

the Reich in case of acts endangering the State.

An obvious argument is that the Gestapo in practice disregarded all

these instructions of Frick and that Himmler and his subordinates

maintained an absolute reign of terror and violence. This is correct and

has been confirmed in detail by the witness Gisevius. But something else

appears of importance to me in the defense of Frick: To show that Frick

himself disapproved of such arbitrary acts and that he tried to do all

in his power to prevent them. Finally, however, Hitler forbade even

this. He informed him through Lammers—as confirmed by the latter as

witness—that he was not to concern himself with police matters, that

Himmler could manage that better by himself and that the Police was

doing well under Himmler.

Thus Himmler finally got complete control of the Police, and he gave

outward expression to this by later dropping, with Hitler’s consent,

from his official title, the words “in the Reich Ministry of the

Interior,” simply referring to himself as “Reichsführer SS and Chief of

the German Police,” which is also shown in the testimony of the witness

Lammers.

I believe that, in view of the circumstances, the problem of the

Defendant Frick’s criminal responsibility for the political police and

their arbitrary measures is not established by the fact that the entire

Police was formally incorporated in the Reich Ministry of the Interior

after the year 1936, since it has been proved! that Frick himself did

not participate in arbitrary acts, but on the contrary tried again and

again to intervene against such arbitrary practice with all the power he

possessed, which however was no match for the personality of Himmler and

his influence with Hitler.

In order to insure fair judgment, I request that the actual situation as

to power of command and authority, and not the purely superficial

circumstances of a formal incorporation of the tasks involved in the

Reich Ministry of the Interior, be taken into account.

I insert the following here: The Prosecution, during their presentation

on 3 July 1946, submitted Document D-181, Exhibit GB-528, and stated in

connection with that document that it proved that the political police

were not only formally incorporated in the Ministry of the Interior, but

that Frick was in fact responsible for the measures of the Police.

Actually the document shows only that Frick as Minister of the Interior

was officially contacted in the matter of the sterilization of those

suffering from so-called hereditary diseases. The document has nothing

to do with any measures of the Police, least of all with any measures of

the political police. Moreover there is no information in it regarding

Himmler’s position in the Ministry of the Interior.

Now I will continue with my plea: In this connection, I must briefly

deal with the reference of the Prosecution to the fact that Hitler’s

decree concerning the appointment of Himmler as Chief of the German

Police—Document 2073-PS—had been countersigned by Frick himself.

I believe that the relationship between Frick and Himmler, as well as

their divergent relations to Hitler, are sufficiently clear to justify

the conclusion that the appointment of Himmler simply amounted to an

agreement between Hitler and Himmler, to which Frick would have objected

in vain. We are confronted with the same problem which applies to so

many defendants, namely, that of the formal countersigning of an order

issued by Hitler, which was then signed as a matter of form by the head

of a department, although that department head had no influence on the

order and could not have prevented it, especially as it would have had

full constitutional effect as a Führer decree without the minister’s

additional signature.

I now have to deal with several documents which the Prosecution consider

to have a bearing on actual activity by the Defendant Frick within the

sphere of tasks of the political police. I have already dealt with

Document 3304-PS, to which the Prosecution referred in this connection.

It concerns an ordinance on the assignment of a Higher Police Leader to

the Reichsstatthalter (Reich Governor) in the Eastern territories which

were incorporated into the commonwealth of the German Reich, and hence

deals with the administrative organization of the Reich Governor’s

office in a part of the Reich. This decree therefore falls within the

scope of the general competence of the Ministry of the Interior, and

accordingly does not furnish proof of any specific police activity.

Moreover, this decree has nothing to do with any arbitrary acts of the

Gestapo.

On the same lines in the decree of 20 September 1936—Document

2245-PS—concerning the appointment of police experts in the Prussian

provincial administrations, which were also subordinate to the Reich

Ministry of the Interior as offices of the general internal Reich

administration, the assignment of a police expert to the office of

general administration in the province is a measure of internal Reich

administration. This measure, too, had no connection with arbitrary acts

of the Gestapo, and more particularly it does not prove that the

defendant issued any instructions to the Gestapo.

The situation is no different with respect to the documents which have

been appraised by the Prosecution as demonstrating the participation of

the defendant in the establishment and administration of concentration

camps, or as a sign of approval of terror methods used by the Gestapo.

In their statement of 22 November 1945, the Prosecution referred to

Document 2533-PS as proof of the approval of these arrangements by the

Defendant Frick. I need not go further into the contents of the

document; it represents an article by the Defendant Frank in the journal

of the Academy of German Law, of which Frick has erroneously been called

the author by the Prosecution.

A further document does not, in the opinion of the Defense, contain

sufficient evidentiary value to be utilized in giving legal judgment. I

have in mind Document 2513-PS, Exhibit Number 235, which contains an

excerpt from a speech which Frick allegedly made in the year 1927. But

the excerpt is taken from a provincial Social Democrat newspaper, a

small paper opposed to Frick, the reporter thus having no authentic copy

of the speech at his disposal—and we all know what mistakes and

misunderstandings are apt to be contained in such short reports, the

wording of which cannot be checked by the speaker himself. Thus this

document, according to which Frick is said to have stated that history

is written not only with the ballot, but with blood and iron, is not a

reliable source.

The Prosecution refers to dealings concerning the expropriation of land

in order to extend the grounds of the Auschwitz Concentration Camp. The

general domestic administration is competent for expropriation matters,

and for this reason an official from the Ministry of the Interior was

called into negotiations, who stated, however—Page 2 of the English

translation of the document—that he was not authorized to dispose of

the freehold of the land. Thus one cannot from this document either

construe any political police activity on the part of the defendant, or

an approval of the concentration camp system. Finally, in this

connection the Prosecution states that the Defendant Frick personally

visited the Oranienburg and Dachau Concentration Camps. The defendant

does not deny the visit to Oranienburg in 1938, about which witness

Hoess testified. At that time, as witness Hoess himself testified, the

outward aspect of the camps was still generally that of a military

training area. In any case, an official visitor to a camp at that time

could not observe any indication of murder, ill-treatment, or similar

crimes, so that such a visit is not a decisive argument for knowledge of

crimes in the concentration camps.

On the other hand, Frick never visited the Dachau Concentration Camp,

contrary to the testimony of the witness Blaha. I refer to the testimony

of Gillhuber in regard to this, who as the constant companion of Frick

must have known about such a visit if it had taken place. I take the

liberty of pointing out that the two other constant companions of Frick

were also named by me as witnesses, but in agreement with the

Prosecution were considered by the Tribunal as unnecessary on the

grounds that one of the companions would be sufficient as a witness.

Before concluding this chapter, I still have to go into the matter of an

allusion made by the Prosecution which described Frick at one time as

the Chief of the Reich Security Main Office. I beg to refer to the

testimony of the witness Ohlendorf, who stated to the Court that the

Reich Security Main Office (RSHA) was a creation of Himmler, who

combined in this office his state police tasks and his functions as

Reichsführer SS, with which Frick had no connection of any kind, much

less any powers of command. The sole chief of this office was thus

Himmler himself.

I must go further into the charges which are made against the Defendant

Frick with respect to the persecution of members of the Jewish race.

Frick did collaborate in legal measures, particularly the Nuremberg

Laws, and in administrative measures which he regarded as an expression

of a National Socialist racial policy. On the other hand there is no

proof that Frick himself shared in or knew of the measures of physical

extermination which, on Hitler’s direct orders, were carried out by

Himmler and his organizations and kept absolutely secret from those who

themselves had no part in these frightful events. Further, in his

capacity as Minister of the Interior, the defendant is also accused of

collaboration in the killing of the sick and insane. Hitler’s basic

order is contained in Document 630-PS, Exhibit Number USA-342. This

document shows that Hitler did not give an order for this to any

government office but to two separate individuals, namely, Bouhler and

Dr. Brandt, so that this was quite outside the ministries’ authority.

Moreover, contrary to all rules, Hitler did not sign this order himself

in an official capacity as Führer and Reich Chancellor, but used private

stationery with the heading “Adolf Hitler.” This shows, a fact that the

witness Lammers has confirmed, that Hitler did not give an order for

these measures to the Ministry of the Interior or some other government

office, but to two of his Party comrades, and the Party emblem is the

only sign on this stationery. On the other hand, the documents submitted

by the Prosecution prove that complaints were made which also reached

the Ministry of the Interior, but they do not prove that, in

contradiction to Document 630-PS, Frick personally was contacted on the

subject of measures for the killings, or that he could have prevented

them.

After his dismissal as Minister of the Interior on 20 August 1943 Frick

was appointed Reich Protector of Bohemia and Moravia. Here he was given

a task which from the start was definitely limited in its competence.

I refer to Document 3443-PS, which is also included as USSR-60 and under

Number 29 in the Frick document book, and to 1366-PS, submitted by me as

Exhibit Number Frick-5a. Furthermore, I refer to the testimony of the

witness Lammers. The office of the Reich Protector was originally the

unified representation of Reich authority in the Protectorate. In actual

practice, however, its authority passed more and more to Frank, the

Reich Protector’s State Secretary at that time.

With the appointment of Frick in August 1943 through a Führer decree

which was not made public, the executive authority was now formally

transferred to Frank, who from that date received the official title of

“The German Minister of State in Bohemia and Moravia.” From that time on

the Reich Protector retained essentially the right of representation and

the right of pardon, improper use of which by Frick has been neither

maintained nor proved by the Prosecution. On the other hand Frank, as

“German Minister of State” according to the above-mentioned Führer

decree, derived his executive authority directly from Hitler by whom he

had been directly appointed, and from whom he received his instructions

without Frick’s interpolation, Frick being in no way competent to

exercise any influence thereon. Considering this state of affairs, the

Defendant Frick cannot be incriminated by Document 3589-PS, Exhibit

Number USA-720.

I now come to the Prosecution’s charge that Frick, by his membership in

certain organizations, is responsible for certain criminal actions. The

SS was one of these organizations mentioned by the Prosecution, to

which, however, Frick never belonged. Thus he was never a general in the

SS, as stated by the Prosecution. I would assume this to be merely an

error on the part of the Prosecution. In any case, the Prosecution did

not submit any form of proof. Frick was likewise never a member of the

SA, as shown—probably by mistake—in the chart indicating the

defendants’ membership in various organizations. For this too, there is

no proof.

The Prosecution has further charged Frick with being the supreme head of

the Gestapo, and therefore designated him as a member of this

organization, with the argument that since the appointment of Himmler in

1936 as Chief of the German Police the Gestapo has been formally

incorporated into the Reich Ministry of the Interior. But the Gestapo

had its own chief in the person of Himmler, from whom alone it took

orders, and Himmler’s formal subordination to the Minister of the

Interior does not make the latter a member of that organization, which

was exclusively under Himmler’s orders.

The Defendant Frick is further charged, in his capacity as Reichsleiter,

with membership in the Political Leadership Corps. My colleague, charged

with the defense of this organization, will in his turn deal with the

character of this organization. As to the Defendant Frick, I have only

to point out that he held the formal position of a Reichsleiter in his

role as chairman of the Reichstag faction of the NSDAP. The Reichstag

itself having lost all political importance after 1933, which requires

no further explanation, this position of Frick’s was in practice equally

unimportant and could not be compared with the position of a

Reichsleiter who administered important political departments.

Finally Frick, as Reich Minister, was a member of the Reich Cabinet.

With regard to the character and the authority of this organization I

also refer first of all to the statements, which are yet to follow, of

my colleague who has been appointed defense counsel for this

organization.

I refer here only to the testimony of Lammers and Gisevius, and further

to the excerpt from the book of this latter witness, which I have

submitted as Exhibit Number Frick-13 as evidence of the position and

authority which the Reich Cabinet had with respect to the dictatorial

practices of Hitler. From all this, the Defendant Frick appears as a

person who certainly took action politically to bring Hitler to power,

and who temporarily exercised a decisive influence on internal policy

after his goal had been achieved. All his measures, however, had inner

political aims; they were not intended to have anything to do with the

foreign political aims of a war of aggression, much less with Crimes

against Peace or against the rules of warfare—and, as also specified by

Article 6 of the Charter, only in such cases would this Court have

jurisdiction, as stated by the Prosecution itself.

When Frick realized later that the policy was taking a course of which

he could no longer approve, he tried to exert all his influence to bring

about a change. But he had perforce to find out more and more clearly

that Hitler would not listen to his remonstrances and complaints. On the

contrary, he was forced to realize that these complaints destroyed

Hitler’s confidence in him, and that he preferred to be advised by

Himmler and similarly minded persons, so that finally, after the year

1937, Frick was no longer received by Hitler when he wanted to present

complaints. Frick then gave up such hopeless attempts to bring about a

change in the situation. Things would not have been altered by his

resignation either, which the evidence has shown he repeatedly tendered

in vain. Thus his tragedy lies in his entanglement in a system, in the

first steps of which he had participated enthusiastically and the

development of which he had imagined would be quite different. In any

case, it appears important to me, in judging his personality and his

actions, that even this presentation of evidence, which has gone on for

months, has not given any proof of the personal participation of the

defendant in any crime.

It is not without reason that John Gunther in his book _Inside Europe_,

which I have presented to the Tribunal as evidence, describes precisely

the Defendant Frick as “the only honest Nazi.” At the same place Gunther

goes on to call him a “bureaucrat through and through.” Hitler himself

kept calling him the “pen pusher” (“Paragraphenschuster”) because

Frick—which was typical of him—did not become acquainted with him at

some public meeting, but in his office in the police department in

Munich in the year 1923.

This man felt enthusiasm for Hitler’s suggestive power, so lacking in

himself, a Hitler who with big words appealed to his heart, his honor,

and his patriotism. It was Hitler who made him proud of being able to

participate in the reconstruction of a German nation which, through

powerful armed forces, was to be in a position to play a peaceful yet

active role in world politics.

And it was again Hitler who knew how to make his program appear to the

bourgeois official Frick as the only way to forestall Bolshevik rule in

Germany—this and many more superficial truths, twisted statements, and

devices of propaganda which fooled so many people who fell for the

suggestive power of Hitler, not realizing in time that they had

subordinated themselves to the hypnotic will of a criminal, who was

prepared to overthrow the pillars of civilization for his aims and who

finally would leave Germany a monstrous spiritual and material field of

rubble, for the removal of which I pray that this Trial may also

contribute through a sentence in accordance with law and justice.

THE PRESIDENT: Dr. Marx.

DR. HANNS MARX (Counsel for Defendant Streicher): Gentlemen of the

Tribunal, Mr. President.