Another discrepancy between the Prosecution, especially with regard to

the statements of Justice Jackson, and myself must likewise be clarified

at this point, otherwise we will be talking at cross purposes. During

the cross-examination Justice Jackson repeatedly pointed out that the

defendant is not being charged with anti-Semitism as such, that he is

not being charged with his opposition to the Treaty of Versailles, that

he is not being charged with his ideas and statements on the so-called

Lebensraum problem as representing the food problem of the central

European nations, that he is not being charged with his colonial

aspirations; but that he is being charged with all this only to the

extent that it served, with his knowledge and desire, for the

preparation of a war of aggression. By this objection Justice Jackson

meant to preclude certain questions and discussions. This would have

been justified and I too could now forego such arguments, were not the

Prosecution taking away with one hand what it is giving with the other,

because in the course of argumentation all this, namely, Schacht’s

alleged anti-Semitism, _et cetera_, is used as indirect proof, that is,

as circumstantial evidence that Schacht had prepared and desired this

war of aggression. The Prosecution of course does not count all that as

a criminal fact in itself, but as indirect proof, as circumstantial

evidence. Therefore in evaluating the evidence, I must also treat these

problems. I think I have finished dealing with the Jewish question. With

regard to the problem of Lebensraum, in order to save time, I can

probably refer to what Schacht has stated here during his interrogation

in justification of his statements and activities in this respect. The

colonial problem was the subject of cross-examination by Justice Jackson

insofar as he tried to prove that colonial activity by Germany was

impossible without world domination, or at least the military domination

of the seas. Further development of this train of thought would result

in the Defendant Schacht being charged with the fact that his striving

for colonies logically depended on the planning of a war of aggression.

That is a false conclusion. I think that Justice Jackson’s conception of

colonial policy is too imperialistic. Anyone desiring colonies for his

country without attendant domination of the world or the sea bases his

colonial activity on a lasting state of peace with the stronger maritime

powers. He must necessarily believe in peace with these powers. Germany

also possessed colonies from 1884 until the first World War; her

merchant marine carried on the necessary traffic with these colonies.

Her merchant marine before this war would also have been sufficient.

Aviation, in reply to Justice Jackson’s question, would not have been

essential. Nothing supports the presumption that in his desire for

colonies Schacht would have striven to eliminate foreign naval supremacy

by means of war. In view of his general conduct one can hardly credit

him with being as foolish as all that. France and Holland likewise

possess colonies, the sea routes of which they certainly do not control.

This charge of the Prosecution is therefore inconclusive. Moreover, the

Tribunal knows that during the years before the war nearly all the

statesmen of the victorious powers were sympathetic to these colonial

aspirations of Germany, as is shown in many of their public speeches.

I now come to the subject of rearmament, that is, to the activity of

Schacht in his capacity as President of the Reichsbank and Reich

Minister of Economics until 1937, in other words, up to the time when he

changed from a loyal servant of Adolf Hitler to a traitor against him

and took to the dark ways of artifice and dissimulation while making

preparations for an attempt on his life.

The Prosecution considers the violation of the Versailles Treaty, the

Locarno Pact, and other treaties as indirect proof, that is, as

circumstantial evidence, of his criminal intention to wage a war of

aggression. This involves first the question of whether any treaty

violations took place and, if so, whether these treaty violations must

be judged as indications of an intent to wage a war of aggression on the

part of members of the Reich Government, Schacht included. It is

impossible, and also unnecessary, to discuss exhaustively in this plea

the problem of whether actual treaty violations were committed and to

what extent. My colleague Dr. Horn has already touched upon this

question. A short remark can serve to show at least the problematical

nature of this question. This again is important for a proper

evaluation. There are no lasting treaties, neither in the domain of

civil jurisdiction nor, still less, in the domain of international law.

The _clausula rebus sic stantibus_ often plays a much more important

role in the domain of international law affecting the political

intercourse between nations than in private dealings between

individuals. One must be very careful not to apply, offhand, the

relatively narrow principles of civil law to the breadth and depth of

international law. International law has its own dynamics. The highly

political intercourse between nations is subject to other juridical

aspects than the commercial and personal relations between individuals.

The most striking proof of the correctness of this thesis is the

juridical basis of the Indictment, particularly insofar as it deals with

the sentence _nulla poena sine lege poenale_ and demands, instead of

sanctions, the individual punishment of the leading statesmen of an

aggressor nation. Whoever upholds the conception of the Prosecution in

this respect, acknowledges the dynamics of international law and the

fact that international law develops according to a process of its own.

History has taught us that treaties based on international law do not

usually come to an end by a formal repeal but succumb to the development

of events. They inevitably sink into oblivion. In specific instances

opinions may differ as to whether this is the case or not; but that does

not affect the basic truth of this statement. The militarization of the

Rhineland and the introduction of general conscription, the extent of

rearmament which Schacht approved of and strived for, the voluntary

“Anschluss” of Austria to Germany, which was also basically desired by

Schacht, all of these certainly are offenses against the meaning and

text of the above-mentioned pacts, particularly the Versailles Treaty.

If, however, such violations are only answered by formal protestations,

and otherwise very friendly relations continue to exist and honors are

even conferred upon the offending nation, and if agreements are

concluded which alter the basic stipulations of such a treaty, as for

instance the Naval Pact with Great Britain, the view is fully justified

that because of all this such a treaty is gradually reaching a state of

obsolescence and extinction, or at least there is cause for such a

subjective point of view.

I beg you to consider that the prerequisite for the conclusion of an

armament pact, as for instance the Naval Pact with Great Britain, is the

military sovereignty of both nations. The denial of such sovereignty to

Germany was, however, one of the main aspects of the Versailles Treaty.

I do not wish to speak here about the justice or injustice of this

treaty. I know the Court’s wish, or rather prohibition, in regard to

this matter, and of course I shall observe it. But I must speak about

the legal possibility and therefore the innocence, criminally speaking,

of Schacht’s personal opinions on the question of treaty violation. Even

if, therefore, one still wished to defend the point of view that the

said treaties have not become obsolete, one cannot, at least as far as

its inherent honesty is concerned, doubt the justification of an opinion

to the contrary. But if this is recognized, these treaty violations no

longer provide any proof of the criminal intention of a war of

aggression. And that is all that matters. For the violation of treaties

in itself is not considered a punishable act by the Charter. Here, too,

Schacht can justify his good faith by referring to the same or similar

views on the part of leading foreign statesmen, in whom it is therefore

logically impossible to assume the existence of a suspicion as to a

desire for aggression on the part of Germany. Here again I must limit

myself to a few instances, since a complete enumeration would exceed the

time limit of this plea.

The first of the violations of the Versailles Treaty is supposedly the

reintroduction of general conscription. With regard to this measure, the

British Foreign Secretary, Sir John Simon, with a statesman’s

far-sighted objectivity, gave the following reply, which was universally

made known in reports by the press and radio and which therefore is

valid as legal evidence:

“There is no doubt that an agreed reduction of the armaments of

other big nations was to follow upon the forced disarmament of

Germany.”

This remark contains a confirmation of the juridical point of view I

developed a while ago, in spite of the criticism of Hitler’s action that

follows. The same applies to the fact that the visit of Sir John Simon

and Mr. Anthony Eden to Berlin took place 8 days after this so-called

treaty violation, namely, on 24 March 1935. It would not have taken

place if this measure of Hitler’s had been considered abroad as

militarily aggressive. I will just mention in passing the history of the

treatment of this question by the Council of the League of Nations,

which is well known. Should Schacht, as a German and a German Minister,

judge it in a manner different from that of the foreign Governments?

A second treaty violation by Hitler was the occupation of the Rhineland,

also in March 1935. This action did not only violate the Versailles

Treaty ...

THE PRESIDENT: [_Interposing_] The date of the occupation of the

Rhineland was not March 1935, but March 1936.

DR. DIX: I cannot ascertain that at the moment.

The point in question is that this action took place, namely, the

occupation of the Rhineland. This action was not only a breach of the

Treaty of Versailles but also of the Locarno Pact, that is, of an

undoubtedly voluntarily contracted treaty. Two days later Mr. Baldwin

stated in the House of Commons, in a speech made public and therefore

valid as legal evidence, that, while Germany’s conduct could not be

excused, there was no reason to assume that this action contained a

threat of hostilities. Was Schacht, a German and a German Minister, to

take a different and more skeptical attitude in regard to the aggressive

significance of the act than foreign statesmen? And particularly when he

was forced to note the fact, which is now history and is universally

known, that 10 days after this breach of treaty the Locarno Powers,

except Germany, submitted to the Council of the League of Nations a

memorandum which proposed the reduction of the number of German troops

in the Rhineland to 36,500 men and only endeavored to avoid the

strengthening of the SA and SS in the Rhineland and the erection of

fortifications and airfields. Should not this memorandum be interpreted

as a ratification of an alleged breach of the treaty?

A third breach of the treaty was the fortification of Helgoland, which

was hardly observed by the contracting parties, and merely called forth

from Mr. Eden, in the now famous public speech before the House of

Commons on 29 July 1936, the remark that it was not considered favorable

to increase the difficulties of the proceedings by individual questions

like the one under discussion. Was the German Minister Schacht to take

another and more rigorous attitude?

And what about the terroristic annexation of Austria in March 1938 when,

moreover, Schacht was no longer Reich Minister for Economics? If foreign

countries had gathered from this action the conviction that Hitler was

preparing a war of aggression, they would not have abstained from

threatening to use force. Was the German Minister Schacht to hold a

different and stricter opinion? He did, in fact, have a different

opinion at the time and was already eagerly at work with Witzleben and

others to eliminate Adolf Hitler and his regime by means of a Putsch; an

effort on the part of these patriotic conspirators which was frustrated,

as the unequivocal testimony of the witness Gisevius has shown, because

Hitler was able to record one success after another in foreign politics.

I merely remind you of the unequivocal evidence of Gisevius regarding

the effects of the Munich Agreement on the influence of the opposition

group of which Schacht was a leader; I remind you of the evidence of

Gisevius regarding the warnings and hints in this connection sent across

the German frontiers to responsible personalities of foreign countries.

Is it fair to require from the German Minister Schacht a more critical

attitude to those political developments than that adopted by foreign

countries whose interests had been injured? As we know from Gisevius,

from Vocke, and from all the affidavits submitted, he did have this

critical attitude from 1937 on, in which year he took to the dark ways

of a conspirator. I remind you of his first contact with the then

General Von Kluge. I could give many examples such as those just

mentioned. I do not criticize this attitude of foreign countries; that

is not for me to do, quite apart from the fact that I have complete

understanding for the pacifist attitude it reveals, which is fully aware

of its responsibilities. It is, however, my duty to point out that no

warlike intention can be imputed to Schacht on account of his opinions

and attitude, when the same opinions and the same attitude can be

identified as belonging to the foreign countries whose interests had

been injured. If foreign countries could entertain the hope of

maintaining further friendly relations with Hitler, the same right must

be conceded to Schacht as far as he claims it. He does not, however,

claim it for himself, at least not after the Fritsch crisis of 1938.

After that time he, in contrast to the foreign countries, had a very

clear idea of the danger, which fact, according to the evidence of

Gisevius, is undeniable, and he personally risked his life and liberty

to maintain peace by attempting to overthrow Hitler. The fact that all

these Putsch actions before the war and after the outbreak of war were

unsuccessful cannot, according to the evidence submitted, be considered

his fault. The responsibility for the failure of this German resistance

movement does not lie with the latter but elsewhere, within and without

the German frontiers. I shall return to this later.

There remains, therefore, the fact of rearmament as such. Here, too, I

can refer essentially to the statements Schacht made in justifying

himself during his cross-examination. This was exhaustive, and a

repetition would be superfluous. It is therefore also completely

superfluous to enter into an academic discussion as to whether Schacht’s

views were right; that is to say, whether it is correct that a certain

amount of military force sufficient for defensive purposes is necessary

for any country and was particularly necessary for Germany, and whether

he was correct in his opinion that the nonfulfillment by the parties to

the Versailles Treaty of the obligation to disarm justified the

rearmament of Germany. The sole point in question is whether these

opinions and motives of Schacht’s were honest, or whether he pursued

secret aggressive intentions under cover of this defensive armament. But

these proceedings have established absolutely nothing to disprove the

honesty of these opinions and motives. Of course, one can question the

fact whether the quotation “_si vis pacem, para bellum_” has absolute

validity; or whether objectively any pronounced rearmament does not

carry an inherent danger of war, since good armies with competent

officers naturally strive for a chance for real action. Of course, one

can defend the thesis that moral strength is stronger than any armed

strength. The cohesion of the British Empire and the world-wide

influence of the Vatican’s foreign policy could perhaps be cited as

proof of this. All these questions carry a certain relativity in

themselves; at any rate, one thing is certain: Even today in all large

countries of the world the warning is constantly repeated that one must

be militarily strong in order to preserve peace. Nations whose

individualism and love of liberty rejected general conscription and a

strong standing army now act to the contrary and honestly believe that

they thereby serve peace. Let us take as an example a nation whose love

of peace absolutely no one in the world, even the most mistrustful, can

question, namely, Switzerland. Yet this peace-loving nation has always

taken pride in maintaining the defense capacity of its people with the

very intention of protecting its freedom and independence in a peaceful

manner. One may academically call this idea of discouraging foreign

aggression by the maintenance of a sufficiently strong defensive army

imperialistic. It is, at any rate, honestly entertained by peaceful and

liberty-loving nations and perhaps serves the cause of peace more

effectively than many so-called antimilitaristic and pacifist doctrines.

This sound point of view has really nothing to do with militarism.

Whoever today recognizes this viewpoint as justified for great and small

nations cannot contest the honesty of this view on the part of Schacht

in the years 1935 to 1938. I have no more to say about this.

I also need not give a wearisome enumeration of figures and make

specialized technical statements to the effect that this part of

rearmament which Schacht first financed with 9,000 million, and then

reluctantly with a further 3,000 million Reichsmark, was by no means

sufficient for a war of aggression, in fact, not even for an effective

defense of the German frontiers. The answers that the witnesses Keitel,

Bodenschatz, Milch, General Thomas, Kesselring, et cetera, have given to

this in their depositions and affidavits are available and have been

submitted to, or officially brought to the attention of, the Tribunal.

In this respect they are unanimously agreed that even at the outbreak of

war—that is, 18 months later—Germany was not sufficiently armed for an

aggressive war; that therefore, when Hitler led this nation into a war

of aggression in August 1939, it was not only a crime against humanity

but also against his own people, the people with whose leadership he was

entrusted.

Therefore I also consider it superfluous to go into long discussions as

to whether Blomberg’s statement that Schacht was aware of the progress

of rearmament is correct, or the statement of Schacht and Vocke that

this was not so. I accept without further discussion the sincerity of

Blomberg’s statement. But since he had more to do with the technical

side of rearmament than the Reichsbank had, general experience would

seem to indicate that the memory of Schacht and Vocke is more reliable

on this point than Blomberg’s, to whom this report to the Reichsbank was

a matter of secondary importance for his department. For the Reichsbank

the desire to be informed about the technical progress of the armament

as well as about the financial expenditure was a very important matter.

One remembers such facts better than unimportant secondary matters. In

any case it is established that until the budget year 1937-38 only

21,000 millions were spent on armament, of which 12,000 millions were

financed by credits of the Reichsbank, and that, according to

Generaloberst Jodl’s statement of 5 June, on 1 April 1938 only 27 or 28

divisions were ready, whereas in 1939 there were already 73 or 75

divisions.

It needs no expert to show that this volume of expenditure and armament

on 1 April 1938 was entirely insufficient for a war of aggression.

Indeed Hitler was of the same opinion when in his memorandum of August

1936, which has been submitted to the Court, and which was handed to

Speer in 1944, he pointed out, along with many derogatory remarks about

Schacht’s conduct of economic affairs, that 4 precious years had gone

by, that we had had time enough in these 4 years to determine what we

could not do, and that he hereby gave orders that the German Army must

be ready for action in 4 years, that is, in the course of the year 1940.

I should like to remind the Court that after Schacht’s withdrawal as

President of the Reichsbank, 31,500 millions were spent on armament

during the two budget years 1938-39 and 1939-40. The issuing and

expenditure of money on armament therefore continued without Schacht,

and indeed to a considerably greater extent. Schacht had once written to

Blomberg that he was not a money-making machine.

He exercised constant pressure on Blomberg along this line. I refer only

to his letter to Blomberg on 21 December 1935, which has been submitted

to the Tribunal. He exercised a restraining influence by means of

explanatory lectures to officers of the War Ministry and of the Armed

Forces Academy. He refused the railway loan of 1936 requested by the

Minister of Communications, which was indirectly in the interest of

armament; and he stopped the credits of the Reichsbank as early as the

beginning of 1937, concluding them by compromising on a final grant of

3,000 millions. He refused the credit which the Reich Minister of

Finance requested from him in December 1938.

He created an automatic brake for armament expenditure through the mefo

bills, which from the technical and financial point of view was a

somewhat bold measure, although legally tenable. These served at first

to finance the armament expenditure but restricted further armament

expenditure after their expiration on 1 April 1939 because the Reich was

obligated to redeem them. Schacht’s foresight proved true. The increase

in employment brought such a rise in the state revenues that it would

not have been difficult to liquidate the mefo bills at their expiration

5 years later. Keitel’s statement has proved that during the budget year

beginning 1 April 1938, 5,000 million marks more were spent for armament

than during the preceding year, although as from 1 April 1938 the

Reichsbank credits had completely ceased. Half of the 5,000 millions

would have sufficed to redeem the mefo bills which matured during the

budget year beginning 1 April 1939. The use of this money for further

rearmament would have been avoided; but this was exactly what Schacht

intended. From the beginning he had limited the validity of the mefo

bills to 5 years; he stopped the credit assistance of the Reichsbank on

1 April 1939 in order to limit armament. It was impossible for Schacht

to foresee that Hitler would simply break a strict credit obligation and

not redeem the bills. These facts in themselves show that his attempts

to resign could have had no other reason than opposition to any further

armament, and the refusal to accept responsibility for it. In this sense

the assertion of the Prosecution that he wanted to evade responsibility

is completely correct.

Nothing indicates that any other motives than those which are obvious

from the facts just mentioned caused him to make this attempt to

relinquish his duties. If the Prosecution maintains that the reason was

his antagonism to Göring, this is also correct insofar as Schacht was an

opponent of the Four Year Plan, of which Göring was the chief. That the

reason was rivalry of power is a pure supposition, an interpretation of

actual events which justifies the quotation: “Interpret to your heart’s

content; should you fail to explain, you will at least insinuate.”

The Reichsbank memorandum of November 1938, which led to the dismissal

of Schacht and most of his collaborators including Vocke, is also

unequivocally and forcibly opposed to armament. It naturally had to

contain reasons for this which were derived from the departmental

jurisdiction of the Reichsbank. Its aim was obvious. Hence Hitler’s

remark, “This is mutiny.” The memorandum ends with the demand for

control of the capital and loan market as well as the management of

taxation by the Reichsbank. Compliance with this demand would have

deprived Hitler of every possibility of raising money for further

armament, and therefore this demand was unacceptable to him. Schacht and

his colleagues knew this. Accordingly, they deliberately sought a break

by this step. Schacht now bore no further responsibility. From now on he

could devote himself exclusively to the plans for a _coup d’état_ by the

conspiracy group to which he belonged. He became a traitor to Hitler. By

remaining Minister without Portfolio, he hoped to learn more about what

went on than if he resigned altogether; this was vital for the aims of

his conspiracy group. I shall return to this point later.

The fact of armament, as such, therefore, proves absolutely nothing for

the assertion of the Prosecution that Schacht deliberately contributed

to the preparation of a war of aggression. Simultaneous economic

armament, however, belongs of necessity to armament in the modern sense.

On the German side this was already recognized for the first time at the

beginning of the first World War by two very important German Jews, the

founder of the Hamburg-America Line, Albert Ballin, and the great German

industrialist, Rathenau. This is the same Rathenau who made the

wonderful speech on peace during the Genoa Conference, which was

received with wild applause by the delegates of those very powers which

had opposed his country but 4 years previously as enemies, and who, as

German Foreign Minister, was the victim of an anti-Semitic outrage in

the early twenties. I probably can assume that the personality of Albert

Ballin is known to the Court. Both men recognized, at the very outbreak

of the first World War, the error of omitting economic mobilization.

Rathenau then organized the so-called War Raw Materials Department of

the War Ministry. The first Plenipotentiary General for War Economy, for

this is what he really was, was thus ideologically a pacifist; and

certainly since that time there is probably no mobilization plan by any

nation which does not provide for the purely military armament to be

accompanied by a corresponding economic preparation for war. Therefore,

the designation of a Plenipotentiary General for War Economy, even if he

had taken up his duties, which as the evidence demonstrates most

convincingly he never did but remained a dummy, does not show anything

in the way of proof that the intention to wage a war of aggression

existed. This post is equally necessary when arming for defense. The

same applies to the institution of the Reich Defense Council, the Reich

Defense Committee, _et cetera_. As such they are the same harmless,

matter-of-course factors. They have no incriminating value. Only their

misuse for the purpose of a war of aggression would be incriminating.

However, Schacht’s criminal intention in this respect has not been

established, nor has anything else been found. I therefore refrain from

going into details on this subject.

In conclusion, the Prosecution sees something incriminating in the

so-called maintenance of secrecy regarding certain mobilization measures

and mobilization arrangements, as for example the second Reich Defense

Law. Here, too, a natural and worldly-wise way of thinking deprives

these findings of any incriminating character. All nations are

accustomed to treat mobilization and armament measures as secret. Upon

further consideration and after closer observation this practice can, of

course, be recognized as a very superfluous routine matter. Only plans

and technical details can be really kept secret. The fact of rearmament

as such can never be kept secret. The same applies to the existence of a

large body which is to serve the purpose of this rearmament. Either it

becomes known because it starts to function, or, like the ominous

Defense Council, it remains hidden and secret only because it does not

function.

In the memoirs of a Czarist officer regarding his experiences in the

Russo-Japanese war I found the following humorous observation:

“If I, as a member of the General Staff, wished an incident to

become known, I had it classified as ‘secret’ and my wish was

fulfilled. If I wished to keep something secret, which was

almost an impossibility, I unobtrusively gave it free

circulation and occasionally my wish was fulfilled.”

One should not quibble in a vacuum; but if one wishes to find the truth,

one must take into account the teachings of experience based on hard

facts.

Thus, the fact of the military activation of Germany after the seizure

of power by Hitler and the subsequent rearmament was never a secret to

the world. The main proceedings have produced a great deal of evidence

to this effect. We know the report of Consul General Messersmith; we

know his sworn testimony of 30 August 1945, submitted by the Prosecution

under Number 2385-PS, according to which the armament program—he speaks

of a giant armament program immediately following the seizure of

power—and the rapid development of the air program had been apparent to

everybody; it had been impossible to move in the streets of Berlin or in

any other city of importance in Germany without seeing pilots or

aviators in training. He expressly states, on Page 8 of his testimony,

that this giant German rearmament program was never a secret and was

quite publicly announced in the spring of 1935.

I would like to remind you, amongst a great deal of other evidence, of

the remark of Ambassador Dodd, who contends that he pointed out to

Schacht that the German Government had bought high-grade airplanes from

American airplane manufacturers for 1 million dollars and had paid for

them in gold. Even if Ambassador Dodd perhaps made a mistake in this

detail, yet all this still proves that German rearmament—the extent of

which was surely even overestimated abroad at that time—must have been,

at the very best, an open secret.

Therefore it is not even necessary to refer to the mutual visits of the

Chiefs of General Staffs, to which Milch and Bodenschatz testified, the

visits of the Chief of the British Intelligence Service, Courtney, the

permanent presence in Berlin of military attachés of nearly all

countries, in order to recognize that the so-called secret rearmament

was quite public and only safeguarded a few technical secrets, as did

rearmament in every state. The outside world knew of the existence of

this rearmament and, in any case, considered it to be compatible with

world peace longer than Schacht himself did.

It is not for me to criticize the attitude of the outside world, nor is

it my intention to do so. Each part on the stage of life has its own

rules of tact, including the part played by the defendant and his

defense counsel. Their task is to establish a defense, and not to bring

charges and make an attack. In connection therewith I expressly wish to

guard against a possible misunderstanding to the effect that I want to

appear as an accuser, a critic, or a know-it-all in any way. I present

all this only from the aspect of my submission that the indirect

circumstantial evidence submitted by the Prosecution is not conclusive.

Furthermore, the Prosecution argues that Schacht was a member of the

Reich Cabinet, at least as Minister without Portfolio from the time of

his dismissal in January 1938, as Minister of Economics, until January

1943. The Prosecution makes the Reich Cabinet responsible—criminally

responsible—for the belligerent invasions of Hitler. This argumentation

has an attractively convincing power for somebody who starts with the

normal concept of a Reich Cabinet. The effect disappears once it has

been ascertained that the so-called Reich Cabinet was not a cabinet in

the usual sense applying to a constitutional state.

Judgments should not, however, be based on outward appearances and

form—not on fiction, but only on actually established conditions. This

makes it necessary to penetrate sociologically the nature of the Hitler

regime and to examine whether a member of the Reich Cabinet, hence of

the Reich Government as such, must in this capacity bear the same

criminal responsibility as if he were in any other normal state set-up,

be it a democratic republic or a democratic monarchy or a constitutional

monarchy or a monarchy which, although absolute, was nevertheless

founded on law, or some other constitutionally based set-up which bears

the character of a somehow lawful state based on a constitution. We are

thus obliged to investigate the actual sociological structure of the

Hitler regime. We have heard an account on the Führer Order

(Führerbefehl) in this connection by Professor Jahrreiss. Here, too, I

want to avoid repetition and would only state the following in

abbreviated form:

I want to say first of all, in order to avoid once more the danger of a

misunderstanding, that when I speak of the Hitler regime here I do so

without referring in any way to the persons sitting in the dock;

naturally with the exception of Schacht. For the latter, I do so in the

negative sense, for he did not belong to the regime as such, in spite of

the fact that he was a member of the Reich Government and President of

the Reichsbank. I leave the question completely open as to whether any

of the other defendants should be considered a member or supporter of

the regime. That question is subject only to the judgment of the

Tribunal and the evaluation of the defense counsel for each case.

At the very beginning of my argument I indicated that, even for a person

who lived in Germany during the Hitler regime, it is difficult to

differentiate between the ostensible distribution of power and the

actual underlying influence, since this requires a great deal of

political intuition; it is bound to be impossible to judge for people

who lived outside Germany and can only be arrived at through the

findings resulting from the presentation of evidence before this

Tribunal. We have established here that the Reich Cabinet, whom Hitler

termed a club of defeatists, was convened for the last time in 1938 and

that it met then only to receive a communication from Hitler. For actual

deliberation and the passing of a resolution it had last been convened

in 1937. We have also established that Hitler deliberately kept all news

of political importance from the Reich Cabinet, as is proved quite

unequivocally by the so-called Hossbach minutes of 10 November. During

this meeting the Führer called the attention of the chiefs of the

branches of the Wehrmacht and the Reich Foreign Minister, who were

present—Schacht, of course, was not present and did not learn about the

Hossbach minutes until he came here—to the fact that the subject for

deliberation was of such great importance that it would result in full

Cabinet meetings in other countries but that, just because of its great

significance, he had decided not to discuss the matter with the Reich

Cabinet.

Thus, at least after 1937, the members of the Reich Cabinet can no

longer be considered the architects and supporters of the political

aspirations of the Reich. The same holds true for the members of the

Reich Defense Council, which as such was nothing but a bureaucratic and

routine affair. Accordingly Hitler, in the spring of 1939, explicitly

excluded the Reich Defense Council also from further war preparations,

saying: “Preparations will be made on the basis of peacetime

legislation.”

Despotism and tyranny showed themselves in unadulterated form as from

1938. It is a characteristic quality of the Fascist as well as the

National Socialist regime, to have the political will concentrated in

the head of the Party, who with the help of this Party subjugates and

becomes master of the State and the nation. Justice Jackson also

recognized this when he stated, on 28 February 1946, that the apex of

power rested with a power group outside the State and the Constitution.

To speak, in the case of such a regime, of a responsible Reich

Government and of free citizens who, through some organizations or

others, could exert influence on the formation of the political will,

would be to proceed from entirely wrong hypotheses. Intangible elements

devoid of all sense of responsibility usually gain influence on the head

of the State and Party in such regimes. The formation of the political

will can be recognized in its crystallized form only in the head of the

State himself; all around him is shrouded in a haze. It is another

characteristic of such a regime—and this again belongs to its inner

untruthfulness—that beneath the surface of seemingly absolute harmony

and union several power groups fight against each other. Hitler not only

tolerated such opposing groups, he even encouraged them and made use of

them as a basis for his power.

One of the defendants spoke here of the unity of the German people

during this war in contrast with the first World War, but I must stress

in reply that hardly at any time during its history was the German

nation so torn internally as it was during the Third Reich. The apparent

unity was merely the quiet of a churchyard, enforced through terror. The

conflicts between the individual high functionaries of the German

people, which we have ascertained here, reflect the inner strife-torn

condition of the German nation, carefully concealed through the terror

wielded by the Gestapo.

To give only a few examples: We were confronted here with the conflicts

between Himmler and Frank, between Himmler and Keitel, between Sauckel

and Seldte, between Schellenberg and Canaris, between Bormann and

Lammers, between SA and SS, between Wehrmacht and SS, between SD and

Justice, between Ribbentrop and Neurath, and so on and so forth. The

list could be continued ad libitum.

Even ideologically the Party in itself was divided into pronounced

oppositional groups, which was shown already at the very beginning of

the presentation of evidence by Göring’s testimony. These oppositions

were fundamental, and they were not bridged by Hitler but rather

deepened. They were the instrument from which he elicited his power. The

ministers were not responsible governing persons, as in any other state

where law is the foundation; they were nothing but employees with

specialized training who had to obey orders. And if a departmental

minister, as in the case of Schacht, did not wish to submit to this, it

resulted in conflict and resignation from his post.

For this very reason no minister could in the long run take full

responsibility for his department, because he was not exclusively

competent for it. A minister, in accordance with constitutional law,

must first of all have access to the head of State; and he must have the

right to report to him in person. He must be in a position to reject

interference and influences coming from irresponsible sources. None of

the characteristics applicable to a minister apply to the so-called

ministers of Adolf Hitler. The Four Year Plan came as a surprise to

Schacht. Similarly, the Minister of Justice was surprised by so

extremely important a law as the Nuremberg Decrees. Ministers were not

in a position to appoint their staffs independently. The appointment of

every civil service employee required the consent of the Party

Chancellery. The intervention and influence of all possible agencies and

persons of the various Chancelleries—Chancellery of the Führer, Party

Chancellery, _et cetera_—asserted themselves. They, however, were

agencies placed above the ministries and they could not be controlled.

Special delegates governed over the heads of the departmental chiefs.

Ministers, even the Chief of the Reich Chancellery, as we have heard

from Lammers, might wait for months for an audience, while Herr Bormann

and Herr Himmler had free access to Hitler.

The anticamera and camarilla, indispensable accessories of all

absolutism, have at all times been difficult to fathom as to the

personal responsibility of the individual circles of which they are

composed. The irresponsible influences exerted over and affecting Hitler

were absolutely intangible.

Generaloberst Jodl described to us here how Hitler’s sudden actions,

caused by some urge and attended by the most serious consequences, could

be traced back to influences of an entirely obscure and unknown sort,

such as pure chance, conversations at a tea party, or the like. For the

objective facts this bears out what I already mentioned in the

beginning. And so this state of affairs precludes even the possibility

of the planning of a crime such as a war of aggression within a clearly

defined circle of persons, much less within the so-called Reich

Government. But where no planning is possible, there can be no plot, no

conspiracy either, the most striking characteristic of which is this

very common planning, even though the participants have different and

varied roles. Let us assume the broadest conceivable interpretation of

the ostensible exterior characteristics of the conspiracy. I am

following Justice Jackson’s line of reasoning. He who takes part in a

counterfeiters’ plot is guilty of conspiracy, even through he may have

written only a letter or acted as bearer of the letter. He who

participates in a plot for robbing a bank is guilty of murder if, in the

course of the execution, not he but a third party in the group of

planners commits murder. At all times, however, the prerequisite is a

body of persons capable of evolving a common plan. Such a thing was not

possible for Adolf Hitler’s ministers; it was not possible at all under

Hitler. From this it follows that no conspirator could participate in

Hitler’s crime of having forced upon his own people and the world a war

of aggression, except those who served Hitler as assistants.

The forces at work in the Third Reich as depicted thus permit in thesis

only the assumption that there existed a punishable complicity or

punishable assistance, not, however, a punishable group offense such as

a conspiracy. Whether such complicity or such punishable aid in the

crime of a war of aggression committed by Hitler exists for individual

defendants personally can only be investigated and decided in each

individual case. It is my task to investigate this only in the case of

Schacht.

A collective crime such as conspiracy is, however, excluded as

inconceivable and impossible in the light of the actual conditions as

already established. But even if this were not the case, the subjective

aspect of the deed is completely lacking in the case of Schacht. Even if

the objective facts of a conspiracy were to exist for a certain circle

of the accused and even with the most liberal interpretation of the

concept of conspiracy, it is still essential that the conspirator should

include the plan of conspiracy and the aims of the conspiracy within his

will, at least in the form of _dolus eventualis_.

The strict facts constituting a conspiracy can best be illustrated by

comparison with a pirate ship. In reality every crew member of the

pirate ship, even a subordinate, is guilty and an outlaw. But a person

who did not even know that he was on a pirate ship but believed himself

to be on a peaceful merchant vessel, is not guilty of piracy. He is

equally innocent if, after realizing the pirate character of the ship,

he has done everything he could to prevent any piracy, as well as to

leave the pirate ship. Schacht did both.

As far as that is concerned, research on conspiracy also recognizes that

a person is not guilty who has withdrawn from the conspiracy by a

positive act before attainment of the goal of the conspiracy, even if he

did co-operate previously in the preparation of the plan for conspiracy,

which was not the case with Schacht. In this connection, I also consider

as being in my favor Mr. Justice Jackson’s answer when I put up for

discussion, during Schacht’s interrogation, the question whether the

persecution of the Jews is also charged to Schacht. Mr. Justice Jackson

said, yes, if Schacht had helped prepare the war of aggression before he

withdrew from this plan for aggression and its group of conspirators and

went over unreservedly to the opposition group, that is, to the

conspiracy against Hitler. This desertion would then be the positive act

which I have mentioned whereby a person at first participating in a

conspiracy would separate himself from it.

This legal problem does not even enter into consideration as far as

Schacht is concerned, because the evidence has shown that he never

desired to participate in the preparation for a war of aggression.

As already stated, this accusation of the subjective fact of the

conspiracy has not been proved either by direct or by indirect evidence.

For the events up to the year 1938 I can point to the statements made

previously. It has been proved that from 1938 on, at the latest, Schacht

fought the bitterest struggle imaginable against any possibility of war

in such a form that he attempted to overthrow the person responsible for

this risk of war and this will for aggression and, thereby, the regime.

Your Lordship, I have now arrived at the end of a section, if Your

Lordship would care to announce a recess now.

THE PRESIDENT: We will adjourn.

[_A recess was taken._]

DR. DIX: I beg your pardon for being late, but I was detained at the

entrance.

Gentlemen of the Tribunal, I have arrived at the discussion of the

beginning of the opposition by means of the various Putsch actions.

It is quite irrelevant and of incidental importance to investigate

whether the attempts at a Putsch, which occurred at shorter or longer

intervals during the war, would have been instrumental in securing

better peace terms for Germany. This is absolutely meaningless for the

criminal evaluation of Schacht’s course of action. Doubtlessly,

according to human reckoning, a successful prewar Putsch would have

prevented the outbreak of war; and a successful Putsch after the

outbreak of war would at least have shortened the duration of the war.

Therefore such skeptical considerations about the political value of

these Putsch attempts do not disprove the seriousness of the plans and

intentions for a Putsch, and that is all that counts in a criminal legal

evaluation. For it proves first of all that a person who has been

pursuing them since 1938, and even since 1937, if one includes the

attempt with Kluge, could not possibly previously have had warlike

intentions. One does not try to overthrow a regime because it involves

the danger of war, if previously one has oneself worked toward a war.

One does so only if by all one’s actions, even that of financing

armament, one wished to serve peace. For this reason these repeated

Putsch attempts on the part of Schacht do not have any legal

significance of a so-called active repentance for previous criminal

behavior but constitute _ex post_ proof that he cannot be accused even

before 1938 of deliberately working for war, because it would be

logically and psychologically incompatible with Schacht’s activity of

conspiracy against Hitler.

These Putsche thus prove the credibility of Schacht in respect to his

explanation of the reasons and intentions which caused him actively to

enter the Hitler Government and to finance armament to the extent to

which he did, namely, to the amount of 12,000 millions. They prove _ex

post_ the purely defensive character of this financing of armament; they

prove the credibility of Schacht’s contention of having tactically

achieved, in addition, a general limitation of armament. If one does

believe this explanation of Schacht’s, and I think one must believe it,

then one cannot speak of Schacht’s co-operation in instigating a war of

aggression.

This credibility is also proved by another circumstance. Schacht

originally contradicted the testimony of Gisevius and my questions

following the same line, that he had admired Hitler at the beginning and

had unreservedly considered him a brilliant statesman. He described this

in his interrogation as an erroneous assumption. He said that he had

recognized from the beginning many of Hitler’s weaknesses, especially

the fact of his poor education, and had only hoped to be in a position

to control the disadvantages and dangers resulting from them. By this

contradiction Schacht made his defense more difficult; but he is wise

enough to have recognized this. Thus what he deliberately forfeited from

the point of view of evidence which would serve his defense, he gains

with regard to his credibility upon objective evaluation of evidence

based on psychological experience. For a person who serves the truth by

contradiction deserves increased credibility, when the suggested untruth

or the half-truth is more advantageous to him technically and tactically

by way of evidence.

There should be no doubt about Schacht’s leading role in the activities

of the various conspiracies about which Gisevius testified on the very

basis of this credible testimony. During the cross-examination Mr.

Justice Jackson confronted Schacht with photographs and films which

superficially show a close connection with Hitler and his paladins. This

can only have been done in order to throw doubt on the earnestness of

his active opposition to Hitler. I must, therefore, deal briefly with

this point of the photographs and films. Mr. Justice Jackson has coupled

this accusation with another one by quoting speeches ostensibly

expressing great devotion on the part of Schacht toward Adolf Hitler

even during the Putsch period. This accusation is on the same level. I

believe that this argument cannot stand up either before the experiences

of life nor before what we can observe of history. History teaches us

that conspirators, especially if they belong to the closer circle of

dignitaries of the threatened head of state, show special devotion for

purposes of camouflage. Nor has it ever been observed that such people

impart their intentions to the prospective victim in a spirit of

contradictory loyalty. One could cite many examples of this from

history.

There exists an effective German drama by a certain Neumann which

concerns itself with the murder of Czar Paul by his first Minister,

Count Pahlen. The Czar believes to the very end in the ostentatious

devotion of Count Pahlen, even while the latter is already sharpening

his knife. And the historical documents in existence include a note by

Count Pahlen to the Russian Ambassador in Berlin, immediately before the

assassination, in which Count Pahlen persists in speaking about “_Notre

auguste Empereur_,” and so forth. Significantly, this drama bears the

title _The Patriot_.

Thus, there is a higher patriotism than the merely formal loyalty of a

servant of the nation. It would be closer to the psychological truth if

this presumptive devotion, assumed for the sake of appearances, and the

assurances of loyalty during this period were judged more in favor of

the objective credibility of Schacht’s explanations than _vice versa_.

As a conspirator, he had to camouflage himself especially well. To a

certain degree this had to be done by practically everyone who lived

under this regime in Germany. As far as the photographs are concerned,

it is probably an inevitable consequence of every social and

representative participation in a body that one becomes a victim of the

camera along with the members of the body whether one likes it or not. A

member of a Government cannot always avoid being photographed with these

people on the occasion of their meetings. As a result we have pictures

that show Schacht between Ley and Streicher and the scene in the film

showing the reception of Hitler at the railroad station. Viewed ex post,

these pictures give no pleasure to the observer, and certainly not to

Schacht either. But they do not prove anything. In a natural evaluation

belonging to a normal average experience of life, I consider these

pictures without any value as evidence, either _pro_ or _contra_.

Foreign countries, too, through their prominent representatives, had

social intercourse with Adolf Hitler’s Government, and this not only

through their diplomatic corps. I wish to assure you that the Defense is

in a position to produce pictures of a much more grotesque sort which do

not seem nearly as natural as Schacht being photographed together with

men who, after all, were his fellow dignitaries in the Third Reich. To

produce such pictures, however, might not be very tactful on the part of

the Defense; yet should it be necessary to investigate the truth in all

seriousness, a defense counsel might have to take upon himself the odium

of indiscretion. I do not believe that there is any need for me to do so

in this case, because the irrelevance and insignificance of such a

presentation of evidence through pictures taken on state occasions of

the Third Reich seems to me to be obvious.

The only incriminating point pressed by the Prosecution which is left

for me to argue now appears to be that Schacht, after his retirement as

Minister of Economics and even after his retirement as President of the

Reichsbank in January 1939, remained Minister without Portfolio until

1943. Schacht declared that this had been stipulated by Hitler as a

condition for his release from the Ministry of Economics. Hitler’s

signature, as that of the head of the State, was necessary for his

dismissal. Had Schacht refused to remain as Minister without Portfolio,

he would surely have been arrested sooner or later as a political

suspect and thus been deprived of all possibility of action against

Hitler. The witness Gisevius has testified as to the discussions at that

time between him and Schacht concerning the continuation of Schacht’s

function as Minister without Portfolio. In these deliberations the idea

was quite justly considered important that Schacht could be of more use

to the group of conspirators as a scout or an outpost if he remained in

this position, to outward appearances at least, within the Reich

Government. Even as Minister without Portfolio, Schacht remained exposed

to great danger, as is shown by his and Gisevius’ declarations and as

becomes obvious from Ohlendorf’s statement that Schacht already in 1937

was on the black list of the State Police.

How much Hitler feared Schacht is proved by his subsequent remarks to

Speer, which have been discussed here, particularly his remarks about

Schacht after the attempted assassination on 20 July. I would also

remind you once more of Hitler’s memorandum of 1936, which he gave to

Speer in 1944 and which shows that he saw in Schacht a saboteur of his

rearmament plans. It has been declared and proved by Lammers that

Schacht tried later on to get rid even of this nominal position. Lammers

and Schacht have proved furthermore that this position of Minister

without Portfolio was without any special importance. Hence my reference

to him as an officer with assimilated rank, that is, an officer without

command authority, a sham officer. Schacht could not give up the

position unless there was a row, and the same held true of his position

as Reichsbank President. Schacht, therefore, had to maneuver in such a

way that he would be thrown out. He succeeded in this, as I explained,

as Reichsbank President through the well-known memorandum of the

Directorate of the Reichsbank and the refusal of credits by the

Reichsbank in November 1938 contained therein. As far as his position of

Minister without Portfolio was concerned, he succeeded through his

defeatist letter of November 1942. In the meantime he made use of the

time for the attempted _coup d’état_ in autumn 1938 and for the various

other attempted _coups d’état_ leading up to that of 20 July 1944, which

finally caused him to be put in a concentration camp.

A criminal reproach can on no account be made against him in his

position as Minister without Portfolio. For his proved conspiratorial

activity against Hitler during all this time eliminates by force of

logic the supposition that he had furthered Hitler’s war plans and war

strategy during this time. In any event, we can only raise—and even

that only in the vacuum of abstraction—a political reproach against the

Schacht of the years 1933-37. But this, too, is fully compensated by the

extraordinarily courageous attitude of Schacht after this period. To

obtain its just evaluation, may I remind you of the interesting

statement of Gisevius to the effect that he, who had at first looked

with a certain skepticism upon Schacht’s original attitude, not in a

criminal but in a political sense, had later become completely

reconciled with Schacht by the extraordinary courage which Schacht

displayed as opponent and conspirator against Hitler since 1938. I am of

the opinion, therefore, that the fact that Schacht remained as Minister

without Portfolio does not incriminate him either directly or

indirectly, neither according to penal law, which is out of the

question, nor morally, if one takes into consideration his behavior as a

whole, his motives, and the accompanying circumstances and conditions.

If the Prosecution now finally argues, on the basis of the text of the

afore-mentioned memorandum by the Directorate of the Reichsbank, that an

opposition to war is not evident from the memorandum, but only technical

reflections on finance and currency, then I have only to refer in this

respect to my earlier statements and the testimony of Vocke. The

presentation of facts by Schacht himself would not even be necessary to

refute this argumentation. Vocke in his capacity as closest collaborator

declared quite unequivocally that Schacht wished to limit and sabotage

rearmament from the moment when he recognized that it was becoming a

potential war danger. The sworn affidavit of Hülse and the sworn

affidavits of all the collaborators of Schacht in the Reich Ministry of

Economics tally with the testimony of Vocke in this respect. I need not

quote them individually. They are known to the Tribunal. The Tribunal

does not need the commentary of a defense counsel on them; they speak

for themselves. If the Prosecution now finally bases its argument on the

text of the memorandum which, it is true, actually only deals with

financial problems, then again I cannot suppress the remark that such an

argumentation moves in a vacuum insofar as one does not take the

experiences of history and the general experiences of life into

consideration. Naturally, as I have already said, the Directorate of the

Reichsbank could only bring up arguments from their department,

particularly so in dealing with a Hitler. One says one thing while

meaning another.

If the Directorate of the Reichsbank, along with their President,

Schacht, had revealed their true purpose in this memorandum, namely, to

avert the danger of war and to combat Hitler’s will of aggression, then

they would have deprived themselves of the effect of technical

departmental influence. Hitler very well understood the purpose of this

memorandum when he shouted, after reading it: “That is mutiny!” With

this, Hitler recognized the only thing that can be said of Schacht as

conspirator: He was never a mutineer and conspirator against world

peace; but, insofar as he was a conspirator and mutineer, he was so only

against Adolf Hitler and his regime.

Again in this case I must ask the High Tribunal to turn their attention

to Appendix Number II, which I must insert at this moment, because the

matter that is dealt with here did not reach me for translation until

after I had submitted my final speech.

I said that Schacht, insofar as he was a conspirator, was so only

against Hitler. As such, he was the subject of ironical belittling by

Generaloberst Jodl and my colleague Nelte through the epithet,

“frock-coat and drawing-room revolutionary.” Now history teaches that

the quality of the tailor does not play any role in the case of the

revolutionary. And as far as the drawing room is concerned, shacks have

no revolutionary precedence over palaces. I would just recall the

political drawing rooms of the great French Revolution or, for example,

the elegant officers’ club of the select Preobrashensk regiment under

many a Czar. Should the Gentlemen of the Tribunal be of the opinion that

Schacht and his accomplices themselves should have done the shooting,

then all I can say is that things were not as easy as all that. Schacht

would have loved to do the shooting himself; he proclaimed that here

emphatically. But it was not possible for him to do so without

possessing the power to master the attendant confusion, thereby making

the attempt a revolutionary success. Thus generals with troops were

necessary. I do not wish to repay Generaloberst Jodl with the same coin

and shall therefore refrain from saying “a necessary evil.”

The further reproach of the basic lack of working-class elements to

strengthen the Putsche is contradicted by the social composition of the

revolutionaries of 20 July. As I stated before, all this is irrelevant

for the decision of the Tribunal. But my client is morally entitled to

expect his defense counsel not to let this ironical thrust pass,

especially since it was delivered in the limelight of public opinion.

In summing up I may say: After the elections in July 1932 it was certain

that Hitler was able and bound to seize power. Previous to this Schacht

had particularly warned the foreign countries of this development, and

thus he had not contributed to it. After the seizure of power only two

roads were open to him, as to every German: He either had to estrange

himself or to enter the Movement actively. The decision at these

crossroads was a purely political one without any criminal aspect. Just

as we respect the reasons which caused the foreign countries to

collaborate with Hitler much more intensively and in a more pro-German

way than with the previous democratic Governments of Germany, we must

recognize the good faith of all those Germans who believed themselves

able to serve the country and humanity better by remaining in the

Movement, that is, within the Party or the apparatus of officialdom,

because of the greater possibilities of exerting their influence, than

by grumbling and keeping aloof. To serve Hitler as minister and

President of the Reichsbank was a political decision, about the

political correctness of which one can argue _ex post facto_ but one

which certainly lacked any criminal character. Schacht has always

remained loyal to the motivating reason for his decision, namely, to

combat any radicalism from an influential position. Nowhere in the

world, which knew his oppositional attitude, could he see any signs of

warning or support. He saw only that the world trusted Hitler much

longer than he himself did and permitted Adolf Hitler to gain honors and

foreign political successes, which hampered Schacht’s work which had

already for a long time been directed toward removing Adolf Hitler and

his Government. He led this struggle against Adolf Hitler and his

Government with a courage and determination which must make it appear a

pure miracle that not until after 20 July 1944 did fate overtake him,

when he was sent to a concentration camp and was in danger of losing his

life either through the Peoples’ Court or through a spectacular act of

the SS. He is sufficiently wise and self-critical to realize that from a

purely political angle the picture of his character will be adjudged

diversely in history, or at least in the immediate future, according to

favor or hatred of the parties. He humbly resigns himself to the

judgment of history, even if one historian or another will label his

political line as incorrect. But with the pride of a good conscience he

faces the judgment of this High Tribunal. He stands before his judges

with clean hands. He also stands before this Tribunal with confidence,

as he has already manifested in a letter which he addressed to this

Tribunal before the beginning of the proceedings, in which he states

that he is grateful to be able to expose before this Tribunal and before

the whole world his actions and doings and their underlying reasons. He

stands before this Tribunal with confidence because he knows that favor

or hatred of the parties will have no effect on this Tribunal. While

recognizing the relativity of all political actions in such difficult

times, he remains sure of himself and full of confidence with regard to

the criminal charges which have been raised against him. Whoever would

be found guilty of being criminally responsible for this war and the

atrocities and inhuman acts committed in it, Schacht, according to the

evidence which has been given here with minute exactness, can confront

that culprit with the words which Wilhelm Tell flings in the face of the

emperor’s assassin, Parricida: “I raise my clean hands to Heaven, and

curse you and your deed!”

I therefore request the findings to be established to the effect that

Schacht is not guilty of the accusation which has been raised against

him and that he be acquitted.

THE PRESIDENT: I call on Dr. Kranzbühler for the Defendant Dönitz.

FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for the Defendant Dönitz): Mr.

President, Gentlemen of the Tribunal: “War is a cruel thing, and it

brings in its train a multitude of injustices and misdeeds.”[2] With

these words of Plutarch’s, Hugo Grotius begins his examination of

responsibility for war crimes; and they are as true today as they were

2,000 years ago. Acts constituting war crimes, or considered as such by

the opponent, have at all times been committed by belligerents. But this

fact was always held against the vanquished parties and never against

the victors. The law which was applied here was necessarily always the

law of the stronger.

While more or less stable rules have been governing land warfare for

centuries, in naval warfare the conceptions of the belligerents with

regard to international law have always clashed. No one knows better

than the British statesmen to what extent these conceptions are dictated

by national or economic interests. I refer in this respect to noted

witnesses such as Lord Fisher and Lord Edward Grey.[3] Therefore, if

ever in history a naval power would have had the idea of prosecuting a

defeated enemy admiral, based on its own conception of the rules of

naval warfare, the sentence would have been a foregone conclusion from

the very indictment.

At this trial two admirals are under indictment for a naval war which

has been termed criminal. Thus the Tribunal is confronted with a

decision regarding conceptions of law which are necessarily as divergent

as the interests of a naval power and a land power. It is not only the

fate of the two admirals which depends upon this decision. It is also a

question of personal honor to hundreds of thousands of German seamen who

believed they were serving a good cause, and who do not deserve to be

branded by history as pirates and murderers. It is for these men, the

living as well as the dead, that I feel bound by a moral obligation to

reject the accusations raised against German naval warfare.

What are these accusations? They are divided into two main groups:

Unlawful sinking of ships and deliberate killing of shipwrecked

personnel. I shall deal first with the accusation of the illegal sinking

of ships.

Two reports by Mr. Roger Allen, of the British Foreign Office, made in

the autumn of 1940 and spring of 1941, form the nucleus of that

accusation. I do not know to whom and for what purpose these reports

were made. According to their form and content they appear to serve

propaganda purposes, and for that reason alone I consider them to have

little value as evidence. Even the Prosecution submitted only part of

the accusations made therein. The reports trace only one-fifth of the

total number of supposedly unlawful attacks back to submarines, whereas

four-fifths are ascribed to mines, airplanes, or surface craft. The

Prosecution omits these four-fifths, and this reticence may be explained

by the fact that the use of these combat means on the British side

differed in no way from that on the German side.

With regard to the use of submarines, however, there does seem to exist

a difference between the principles followed in Germany’s conduct of the

naval war and that of our enemies. At any rate, the public in enemy

countries and in many neutral countries believed so during the war, and

partly still believes it today. Propaganda dominated the field. At the

same time the vast majority of all critics neither knew exactly what

principles applied to German U-boat warfare, nor on what factual and

legal foundations they were based. It shall be my task to attempt to

clarify this.

The reports by Mr. Roger Allen culminate in the assertion that the

German U-boats, beginning with the summer of 1940, torpedoed everything

within range. Undoubtedly, the methods of submarine warfare gradually

intensified under the pressure of the measures directed against Germany.

This war, however, never degenerated into an orgy of shooting governed

only by the law of expediency. Most of what might have been expedient

for a U-boat was left undone to the last day of the war because it could

only be regarded as legally inadmissible, and all measures of which

Germany in her conduct of naval warfare is being accused today by the

Prosecution were the result of a development in which both sides took

part through measures and countermeasures, as occurs in the course of

every war.

The London Protocol of 1936 formed the legal basis for German submarine

warfare at the beginning of this war. These regulations were

incorporated verbatim into Article 74 of the German Prize Ordinance,

which even Mr. Roger Allen calls a reasonable and not inhuman

instrument. This Prize Ordinance was sent in 1938 in draft form to the

two U-boat flotillas and to the U-boat training school and served as a

basis for the training of commanders. Stopping and examining merchant

vessels was performed as a tactical task. In order to facilitate for the

commander in economic warfare the quick and correct evaluation of his

legal position towards ships and cargoes of the enemy and of neutral

countries, the prize disc was constructed, which through simple

manipulations indicated the articles of the Prize Ordinance to be

applied. Thus, insofar as preparations had been made at all for economic

warfare by submarines they were based exclusively on the German Prize

Ordinance, and thus on the London Protocol.

The German High Command actually did adhere to this legal foundation in

the initial stages of the war. The combat instructions for U-boats of 3

September 1939 contained clear orders to the effect that submarine

warfare was to be carried on in accordance with the Prize Ordinance.

Accordingly, sinkings were permissible only after stopping and examining

the ship, unless it attempted to escape or offered resistance. Some

examples were submitted to the Tribunal, from the abundance of available

instances, showing the chivalrous spirit in which the German submarine

commanders complied with instructions given. In particular, assistance

afforded to the crews of ships lawfully sunk, after having been stopped

and examined, occasionally reached a point where it could scarcely be

justified on military grounds. Lifeboats were towed over long distances,

whereby the few available U-boats were diverted from their combat

mission. Enemy ships which might have been sunk lawfully were permitted

to go free in order to send the crews of ships previously sunk to port

aboard them. It is therefore only correct that Mr. Roger Allen stated

that the German U-boats, during the first weeks of the war, adhered

strictly to the London regulations.

Why was this practice not kept up? Because the conduct of the enemy made

such a procedure militarily impossible, and at the same time created the

legal prerequisites for its modification.

I shall consider the military side first. From the very first day of the

war, U-boat reports reached the Flag Officer of U-boats and the Naval

Operations Staff stating that hardly an enemy ship submitted voluntarily

to being stopped and examined. The merchant vessels were not content

with attempting to escape through flight or by changing their course and

bearing directly down upon the U-boat in order to force it to dive.

Every U-boat sighted was at once reported by radio; and subsequently, in

the shortest space of time, attacked by enemy airplanes or naval forces.

However, it was the arming of all enemy merchant vessels that settled

the matter. As early as 6 September 1939 a German U-boat was shelled by

the British steamship _Manaar_, and that was the starting signal for the

great struggle which took place between the U-boats, on the one hand,

and the armed merchant vessels equipped with guns and depth charges, on

the other hand, as equal military opponents.

In order to show the effect of all the measures taken by the adversary,

I have presented to the Tribunal some examples which I do not wish to

repeat. They show unequivocally that further action against enemy

merchant ships in accordance with the Prize Ordinance was no longer

feasible from the military standpoint and meant suicide for the

submarine. Nevertheless, the German command for weeks on end continued

to act according to the regulations governing the Prize Ordinance. Only

after it was established that action on the part of enemy merchant

ships—especially armed action—no longer took the form of individual

measures but of general instructions, was the order given on 4 October

1939 to attack all armed enemy merchant ships without warning.

The Prosecution will perhaps take the standpoint that, in lieu of this,

submarine warfare against armed merchant vessels should have been

discontinued. In the last war the most terrible weapons of warfare were

ruthlessly employed by both sides on land and in the air. In view of

this experience the thesis can hardly be upheld today that in naval

warfare one of the parties waging war should be expected to give up

using an effective weapon after the adversary has taken measures making

the use of it impossible in its previous form. In any case such a

renunciation could only be considered if the novel utilization of the

weapon were undeniably illegal. But this is not the case for the

utilization of German submarines against enemy merchant shipping,

because the measures taken by the enemy changed not only the military

but also the legal situation.

According to German legal opinion a ship which is equipped and utilized

for battle does not come under the provisions granting protection

against sinking without warning as laid down by the London Protocol for

merchant ships. I wish to stress the fact that the right of the merchant

ship to carry weapons and to fight is not thereby contested. The

conclusion drawn from this fact is reflected in the well-known formula:

“He who resorts to weapons must expect to be answered by weapons.”

During cross-examination the Prosecution referred to this interpretation

of the London Protocol as fraudulent. It admits only the closest literal

interpretation and considers the sinking of a merchant ship as

admissible only if the latter has offered active resistance. It is not

the first time that fundamental differences of opinion exist between

contracting parties with respect to the interpretation of a treaty, and

the extremely divergent interpretations of the meaning of the Potsdam

Agreement of 2 August 1945 provide a recent example. Diversity of

conception, therefore, does not permit the conclusion that the one or

the other party acted fraudulently during the signing or the subsequent

interpretation of a treaty. I will endeavor to show how unjustified this

charge is particularly in regard to the German interpretation of the

London Submarine Protocol.

There are two terms on which the German interpretation hinges, namely,

that of “merchant vessel” and “active resistance.” If I now consider

some legal questions, this will in no way represent a comprehensive

exposition. I can only touch on the problems and due to lack of time

must limit myself also when dealing with research on the subject. I

shall primarily refer to American sources, because the interests of

naval strategy of that nation were not as firmly established as those of

the European nations and its research literature can thus claim greater

objectivity.

The text of the London Protocol of 1936 is based, of course, on a

declaration which was signed at the London Naval Conference of 1930. The

committee of jurists appointed at that time expressed its opinion

concerning the greatly disputed definition of a merchant vessel in the

report of 3 April 1930:

“The committee wishes to place on record that the expression

‘merchant vessel’ where it is employed in the declaration is not

to be understood as including a merchant vessel which is at the

moment participating in hostilities in such a manner as to cause

her to lose her right to the immunities of a merchant vessel.”

This definition clarifies at least one thing, namely, that by no means

every vessel flying a merchant flag may lay claim to being treated as a

merchant vessel in the sense of the London Agreement. Beyond this, the

explanation has few positive aspects because the question through what

kind of participation in hostilities a vessel loses her right to the

immunity of a merchant vessel is again subject to the interpretation of

the contracting parties. The London Conference, as far as I can see, did

not consider this ticklish question any further, and one is probably

entitled to assume that this remarkable reserve is based on experiences

which the same powers had accumulated in Washington 8 years before.

The Washington Conference of 1922 was held under the impression of the

first World War; and therefore it is no wonder that Great Britain, the

naval power which during the World War had suffered most from German

submarine warfare, now tried to outlaw and abolish altogether by

international law submarine warfare against merchant shipping. The

resolution, named after the American chief delegate, Root, which in its

first part substantially corresponded to the London text of 1930, served

that aim. But in the second part the Root Resolution goes further and

stipulates that any commander who, no matter whether he acted with or

without higher orders, violated the rules established for the sinking of

merchant vessels should be punished as a war criminal like a pirate.

Finally it was recognized that under the conditions stipulated in the

resolution submarine warfare against merchant shipping was impossible,

and such warfare was therefore renounced altogether by the contracting

powers. The Root Resolution designates these principles as an

established part of international law. While it was accepted as such by

the delegates, none of the five participating naval powers, U.S.A.,

Britain, France, Japan, and Italy ratified it.

In connection with the Root Resolution, however, another question was

discussed which is of the greatest importance for the interpretation of

the London Protocol, namely, the definition of the term “merchantman.”

Here the two conflicting views in the entire U-boat question became

clearly evident. On the one side there stood Britain, on the other

France[4], Italy, and Japan, while the United States took the position

of a mediator. According to the minutes of the Washington Conference,

the Italian delegate, Senator Schanzer, opened the offensive of the

weaker naval powers by expressly emphasizing that a merchantman, when

regularly armed, might be attacked by a submarine without preliminaries.

In a later session Schanzer repeated his statement that the Italian

delegation applied the term of “merchantman” in the resolution only to

unarmed merchant vessels. He declared this to be in explicit accordance

with the existing rules of international law.[5]

The French delegate, M. Sarraut, at that time received instructions from

his Foreign Minister, M. Briand, to second the reservations of the

Italian delegate.[6] He thereupon moved to have the Italian reservations

included in the minutes of the session.

The Japanese delegate, Hanihara, supported this trend with the statement

that he thought it was clear that merchant vessels engaged in giving

military assistance to the enemy ceased in fact to be merchant

vessels.[7] It can therefore be seen that in 1922, three of the five

powers represented expressed the opinion that armed merchant vessels

were not to be regarded as merchant vessels in the sense of the

Agreement.

Since the whole resolution threatened to collapse because of this

difference of opinion, a way out was found which is typical of

conferences of this kind. Root closed the debate with the statement that

in his opinion the resolution held good for all merchant ships as long

as the ship remained a merchant vessel.[8] With this compromise a

formula was created which, while representing a momentary political

success, would not however carry any weight in the case of war, for it

was left to every participating power to decide whether or not it would

grant the armed merchant vessels the protection of the resolution in

case of war.

I have described these events of the year 1922 a little more in detail

because the powers which took part in them were the same as those which

participated in the London Naval Conference of 1930. The London

Conference was the continuation of the Washington Conference, and the

subjects that had been discussed and included in the minutes of the

first conference were of great importance for the second conference.

Experts too—and by no means only German but above all American and

French experts—based their examinations on the close connection of both

conferences, and it was precisely for that reason that they declared the

result achieved in the question of submarines to be ambiguous and

unsatisfactory. Here I merely wish to point to Wilson’s summarizing

report on the London Naval Treaty.[9]

This report, besides the ambiguity of the concept “merchant vessel,”

also stresses the uncertainty connected with the words “active

resistance”; and it is with these very words that an exception from the

protection of the merchantman is connected, an exception which likewise

is not contained in the actual text of the London Agreement but which

nevertheless is generally recognized. I am referring to merchantmen in

an enemy convoy. If the London Agreement were interpreted literally, it

would be understood that even merchantmen in an enemy convoy must not be

attacked without warning but that an attacking warship would have to put

the escort vessels out of action first and then stop and search the

merchantmen. However, this suggestion, which is impossible from a

military point of view, evidently is not made even by the Prosecution.

In the report of the British Foreign Office, which has been mentioned

several times, it says:

“Ships sailing in enemy convoys are usually deemed to be guilty

of forcible resistance and therefore liable to be sunk

forthwith.”

Here even the Prosecution accepts an interpretation of the words “active

resistance,” an interpretation which results in no way from the treaty

itself but is simply a consequence of military necessity and thus

dictated by common sense.

And this very same common sense demands also that the armed merchantman

be held just as guilty of forcible resistance as the convoyed ship. Let

us take an extreme instance in order to make the matter quite clear. An

unarmed merchant ship of 20,000 tons and a speed of 20 knots, which is

convoyed by a trawler with, let us say, 2 guns and a speed of 15 knots,

may be sunk without warning, because it has placed itself under the

protection of the trawler and thereby made itself guilty of active

resistance. If, however, this same merchant ship does not have the

protection of the trawler and instead the 2 guns, or even 4 or 6 of

them, are placed on its decks, thus enabling it to use its full speed,

should it in this case not be deemed just as guilty of offering active

resistance as before? Such a deduction really seems to me against all

common sense. In the opinion of the Prosecution the submarine would

first have to give the merchant ship, which is far superior to it in

fighting power, the order to stop and then wait until the merchant ship

fires its first broadside at the submarine. Only then would it have the

right to use its own weapons. Since, however, a single artillery hit is

nearly always fatal to a submarine but as a rule does very little harm

to a merchant ship, the result would be the almost certain destruction

of the submarine.

“When you see a rattlesnake rearing its head, you do not wait

until it jumps at you but you destroy it before it gets the

chance.”

These are Roosevelt’s words, in which he justified his order to the

United States naval forces to attack German submarines. This reason

seemed sufficient to him to order the immediate use of arms even without

the existence of a state of war. It is a unique instance in the history

of warfare, however, to grant one of two armed opponents the right to

fire the first shot and to make the other wait to be hit first. Such an

interpretation is contradictory to all military reason. It is no wonder,

therefore, if in view of such divergent opinions, the experts on

international law, even after the London Treaty and the signing of the

London Protocol of 1936, consider the treatment of armed merchant

vessels in naval warfare to be an unsolved question. Here too I should

like to refer to only one source of research, which enjoys especially

high authority. It is the draft of an agreement on the rights and duties

of neutrals in naval warfare, an agreement which leading American

professors of international law, such as Jessup, Borchard, and Charles

Warren, published in the _American Journal of International Law_ of July

1939 and which includes arguments which furnish an excellent idea of the

latest trend of opinion. Article 54 of this draft corresponds word for

word to the text of the London Agreement of 1936, with one notable

exception: The term “merchant vessel” is replaced by “unarmed vessel.”

The next article then continues:

“In their action with regard to enemy armed merchant vessels,

belligerent warships, whether surface or submarine, and

belligerent military aircraft are governed by the rules

applicable to their action with regard to enemy warships.”

This opinion is first of all explained by historical development. During

the time when it was customary to arm merchant vessels, that is, until

the end of the last century, there was no question of any protection for

the merchant vessel against immediate attack by an enemy warship. With

the introduction of armor plating the warship became so superior to the

armed merchant vessel that any resistance on the part of the latter was

rendered futile, and the arming of merchant ships therefore gradually

ceased. Only this defenselessness against warships, and this alone,

granted merchant vessels the privilege of not being attacked without

warning by the enemy: “As merchantmen lost effective fighting power they

acquired a legal immunity from attack without warning.”

This immunity was never conceded to the merchant vessel as such but only

to the defenseless and harmless merchant vessel. In regard to this the

American expert on international law, Hyde,[10] stated in 1922, that is,

after the Washington Conference and the afore-mentioned Root Resolution

on U-boat warfare:

“Maritime states have never acquiesced in a principle that a

merchant vessel so armed as to be capable of destroying a vessel

of war of any kind should enjoy immunity from attack at sight,

at least when encountering an enemy cruiser of inferior

defensive strength.”

Legal as well as practical considerations, therefore, led the

above-mentioned American authorities, after the signing of the London

Agreement and shortly before the outbreak of this war, to form the

opinion that armed merchant ships do not enjoy protection from attacks

without warning.

Here the old discrimination between defensive and offensive armaments is

also rejected as inapplicable. It is a well-known fact that the American

Secretary of State, Lansing, in his note to the Allies on 18 January

1916, took the point of view that any kind of armament aboard a merchant

vessel will make its fighting power superior to that of a submarine and

that such armament is therefore of an offensive nature.[11]

In the later course of the first World War, the United States changed

its opinion and declared that mounting guns on the stern could be taken

as proof of the defensive character of the armaments. This standpoint

was adopted in some international agreements and drafts, as well as by

British jurists in particular. It does not do justice to the practice of

naval warfare.

First of all, in this war the guns on many vessels were mounted from the

very start in the bows, for instance, regularly on fishing trawlers.

Furthermore, the antiaircraft weapons of the merchant vessel, which were

especially dangerous for the submarine, were frequently placed on the

bridge, and could therefore be used in all directions. Besides, there

can be no differentiation between defensive and offensive armaments as

to the way the weapons are placed.

In this respect orders alone and the way in which these weapons are

meant to be employed are the decisive factors. Soon after the war had

started the orders of the British Admiralty had already fallen into

German hands. A decision of the Tribunal has made it possible for me to

submit them. They are contained partly in the _Confidential Fleet

Orders_, chiefly, however, in the _Defense of Merchant Shipping

Handbook_. They were issued in 1938. They do not therefore deal with

countermeasures against illicit German actions but, on the contrary,

were already issued at a time when warfare in accordance with the London

Agreement was the only form of submarine warfare taken into

consideration in Germany.

The instructions further show that all British merchant vessels acted,

from the first day of the war, according to orders received from the

British Admiralty. These involved the following points with respect to

submarine warfare:

(1) Reporting of submarines by radio telegraphy.

(2) The use of naval artillery.

(3) The use of depth charges.

These instructions were supplemented on 1 October 1939, when a call was

transmitted over the radio to ram all German submarines.

It might seem unnecessary after this survey to make any mention at all

of the defensive and offensive character of such orders. The orders on

the use of artillery by merchant vessels, however, do make such

differentiation; that is, guns are to be used for defense only, as long

as the enemy on his part adheres to the regulations of international

law, and for the offensive only when he no longer does. The orders

covering the practical execution of these directives reveal, however,

that there is no difference at all between defensive and offensive use.

Admiral Dönitz explained this in detail when he was heard in Court, and

I do not want to repeat it. Actually, from the very beginning of the war

merchant vessels were under orders to fire on every occasion on every

submarine which came within range of their guns. And that is what the

captains of British merchant vessels did. The reason for this offensive

action can certainly not be found in the conduct of German submarines

during the first weeks of the war, for even the Foreign Office report

admits that this conduct was correct. On the other hand, British

propaganda may have had great influence, since in connection with the

unintentional sinking of the Athenia on 3 September 1939, it

disseminated through Reuters on 9 September the assertion that

unrestricted submarine warfare was in progress and upheld this assertion

notwithstanding the fact that the conduct of German submarines during

the first weeks of the war refuted this accusation. Together with the

announcement of the British Admiralty’s ramming orders of 1 October

1939, the merchant navy was again officially informed that the German

U-boats had ceased to respect the rules of naval warfare and that

merchant vessels were to adjust their conduct accordingly. It seems to

me of no importance that a corresponding written supplement to Admiralty

orders was not issued until the spring of 1940, because nowadays a naval

war is not directed by letters but by wireless. But according to the

latter, the British captains, as from 9 September or 1 October 1939 at

the latest, were directed to use their guns offensively against the

German U-boats in accordance with the Admiralty’s instructions as

contained in its handbook. The German order to attack armed enemy

merchant vessels without warning was issued only on 4 October. Thus it

was justified in any case, even if one did acknowledge a difference in

treatment for vessels with defensive and offensive armament.

The guns on the merchant vessels and the orders concerning their use

were, however, only a part of a comprehensive system of the use of

merchant vessels for military purposes. Since the end of September 1939

the fastest vessels, that is, those ships that were the least endangered

by submarines but, on the other hand, were especially suited for chasing

U-boats, received depth charge chutes, that is, armaments which call for

location of a submerged submarine and thus may be judged as typical

weapons for the offensive.

However, another factor of greater general importance, and also of

greater danger to the submarines, was the order to report every enemy

ship on sight, giving its type and location. This report was destined,

so said the order, to facilitate taking advantage of an opportunity,

which might never recur, to destroy the enemy by naval or air forces.

This is an unequivocal utilization of all merchant vessels for military

intelligence service with intent directly to injure the enemy. If one

considers the fact that according to the hospital ship agreement even

the immunity of hospital ships ceases, if they relay military

information of this type, then one need have no doubts about the

consequences of such behavior on the part of a commercial vessel. Any

craft putting out to sea with the order and intention of using every

opportunity that occurs to send military reports about the enemy to its

own naval and air forces is taking part in hostilities during the entire

course of its voyage and, according to the afore-mentioned report of

1930 of the committee of jurists, has no right to be considered a

merchant vessel. Any different conception would not do justice to the

immediate danger which a wireless report involves for the vessel

reported and which subjects it, often within a few minutes, to attack by

enemy aircraft.

All of the Admiralty’s directives, taken together, show that British

merchant vessels, from the very first day of the war, closely

co-operated with the British Navy in combating the enemy’s naval forces.

They were part of the military communications network of the British

naval and air forces and their armament of guns and depth charges, the

practical training in manipulation of the weapons, and the orders

relative to their use, were actions taken by the British Navy.

We consider it out of the question that a merchant fleet in this manner

destined and utilized for combat should count among the vessels entitled

to the protection of the London Protocol against sinking without

warning. On the basis of this conception and in connection with the

arming of all enemy merchant vessels, which was rapidly being completed,

an order was issued on 17 October 1939 to attack all enemy merchant

ships without warning.

THE PRESIDENT: Dr. Kranzbühler, we may as well break off now.

SIR DAVID MAXWELL-FYFE: My Lord, I am sorry to detain the Tribunal, but

I promised to tell the Tribunal about the two affidavits put forward for

the Defendant Seyss-Inquart. We have no objection to them. I promised to

tell Your Lordship today. I am sorry to have to detain you.

[_The Tribunal adjourned until 16 July 1946 at 1000 hours._]