DR. EXNER:

“... the Defendant Jodl has stated that he did not know the

document. After looking through the document, he explained that

it is quite obvious from the document that in the West, at any

rate, there was no plan for any German action, but that

definitely only defensive measures were considered. He did not

discover where the ‘Operation Training’ was supposed to take

place; he could only guess.

“Defendant Freiherr von Neurath has now informed him that in

1934, during the summer, Mussolini had stationed several

divisions at the Brenner Pass in order to occupy the North Tyrol

in the event of the Anschluss. The Defendant Jodl, after

receiving this information, perused the document again, and he

now imagines that according to this document an operation was to

be prepared to thrust the Italians back across the Brenner Pass

in the event of their marching in. But he knows nothing about

this affair.

“The entire matter has nothing at all to do with the Defendant

Jodl, and for that reason I shall not refer to it during this

session. He is extremely anxious, however, that it should not

appear as if he had attempted to conceal anything.” It is signed

“Dr. Exner,” and “Jodl.”

THE PRESIDENT: Very well.

Now I call on Dr. Stahmer.

DR. STAHMER: Mr. President, to begin with, I should like to remark that

I have still to complete the Case Katyn. The Case Katyn could not be

incorporated into the book which has been submitted to the Tribunal,

because the hearing of the evidence only took place on Monday and the

day before yesterday. I shall have to present it, therefore, without its

being in the book. It is only a brief presentation, and the interpreters

will receive copies of my draft. Unfortunately, however, I cannot submit

a translation to the Tribunal at the moment, as the hearing of the

evidence was concluded only the day before yesterday and I could not

work on it before. I shall add this at a suitable moment, and I hope

that in spite of this I shall be finished within the time I mentioned.

[_The proceedings were interrupted by technical difficulties in the

interpreting system._]

THE PRESIDENT: Is that all right now? Go on, Dr. Stahmer.

DR. STAHMER: When I mentioned the time I should require I could not take

into account the Katyn Case. Nevertheless, I hope that I shall be able

to finish in the time which I have stated, as I am shortening the report

in some places and I believe I shall have sufficient time.

May it please the Tribunal: This Trial, of truly historical and

political importance, and of great significance in shaping new laws, is

of dimensions such as have not been known hitherto in the history of

law; these proceedings which concern not only the defendants present in

the Court, but which are of the greatest importance to the entire German

people, are now entering upon a new phase.

The Defense takes the floor.

The position of the Defense in these proceedings is especially

difficult; for there is an all too unequal distribution of strength

between the Prosecution and the Defense.

Months before the start of the Trial the Prosecution was in a position

to search all offices and archives in Germany and abroad with a large

staff of experienced collaborators, as well as to examine witnesses in

all countries. Thus they were able to submit to the Tribunal an immense

amount of evidence.

The difficult position of the Defense is further aggravated by the fact

that in the Anglo-American procedure on which this Trial is based there

is a clause missing which is contained in the German criminal procedure

according to which the Prosecution is also bound to procure and submit

evidence exonerating the accused...

THE PRESIDENT: Dr. Stahmer, let me tell you that the statement you have

just made is entirely inaccurate. There is no such thing as an English

code of criminal procedure, but it is the universal practice for the

Prosecution to disclose to the Defense any document and any witness who

assists the Defense and therefore your statement is entirely false—and

I believe that same practice obtains in the United States.

And as for what you say here about the Defense being under any unfair

difficulties as compared with the Prosecution, that also is entirely

inaccurate because I feel certain that the Prosecution in this case have

observed the same rules that would have been observed in England and

would have disclosed to the Defense any document or any witness over

whom they had control who would assist the Defense, and there have been

various occasions on which the Prosecution have disclosed in this case

to the Defense documents which have been supplied to them, which

appeared to them to help the Defense.

Every document which has been put in by the Defense in this case—or

practically every document—has been procured for them after great

efforts by the Prosecution, and investigations have been made all over

Germany and, I may say, almost all over the world in order to help the

Defense in this case.

DR. STAHMER: Thank you for your instruction, Mr. President.

After the reading of the Indictment, Reich Marshal Göring, in reply to

the question of the presiding judge as to whether he pleaded guilty or

not guilty, declared, “Not guilty in the sense of the Indictment.” This

statement of the accused necessitates an examination of all the charges

made by the Prosecution.

The accused has, of course, already during his personal examination

dealt with many questions which are of considerable importance for his

defense. He expressed his opinion in detail with regard to political and

military developments and exhaustively described the motives for his

actions, and the origin and course of events.

I am thankful to the High Tribunal for permitting the accused to portray

matters to the total extent to which he saw, felt, and experienced them,

for only such direct personal portrayal can afford good insight into the

attitude of the accused, thus making it possible to obtain a reliable

opinion of his personality. This knowledge is absolutely necessary if

the Tribunal is to come to a decision which is not only in harmony with

objective law, but which also renders the maximum of justice to the

individuality of the perpetrator.

I do not consider it necessary—after the accused was heard so

exhaustively on all particulars—to deal with every question to which he

has already given the requisite explanation. For this reason I can limit

the defense to the following statements:

We are in a transitory period of history of the greatest significance.

An age is coming to an end which has been known less for its concept of

order than for its concept of liberty. This striving for liberty

released tremendous forces—so gigantic that in the end it was

impossible to master them. The tremendous progress this era has

unquestionably made in scientific and technical spheres we have dearly

paid for with the shattering of all human order and the loss of peace in

the entire world.

So far the profound reasons for such a disastrous development have

hardly been discussed in this Court. But in order to understand properly

the grave crimes and aberrations which are indicted here it is

imperative to throw some light on the historical background.

The French chief prosecutor has already pointed out that the roots of

National Socialism are to be found in a period far removed from us. He

goes back to the beginning of the last century. He sees the first step

to a leading astray of the German character in Fichte’s _Reden an die

deutsche Nation_ (Speeches to the German Nation). Fichte preached the

doctrine of Pan-Germanism, he says, insofar as he wanted to see the

world planned and organized by others, just as he himself saw it and

would have liked it to be shaped. I cannot understand how this can be

taken to express more than the universal human desire to take part in

the shaping of a common destiny. Only the methods of such attempts to

participate may, at times, be justly criticized.

A Swiss assertion, which also perceives in Fichte the cause of Germany’s

going astray, seems to me to be clarifying in this respect. It does not,

however, accuse him of Pan-Germanism, that is, of the will to subjugate

foreign peoples, but rather reproaches him for having attempted at all

to unite the Germans into one nation. It contends that this was an

inadmissible attempt to imitate the French and British, whereas it would

have been more suited to the German character to remain a nation made up

of different peoples. For only as such could it have continued its

historical mission of remaining the nucleus of a European federation.

Judging by Fichte alone the development is therefore not so easily

interpreted.

If one wishes to think historically, one cannot simply fall back on

Fichte. For his _Reden an die deutsche Nation_ was only an answer to the

“Call to Everyone” which the French Revolution had sent out into the

world, and they were directly provoked by the appearance of Napoleon I.

One must go back over the chain of causes and effects to their very

beginning. This, the beginning of a national and personal striving for

liberty which has characterized the whole of modern times, we find in

the Middle Ages.

The colorful play of national and imperial tendencies and struggles

which had been the hallmark of ancient times was overcome by the

conception of one eternal and omnipotent Christian Church. With this a

static order superseded the dynamic forces of the time, an order which

according to the doctrine of the Church was created by the Lord himself

and was therefore by “the grace of God.” It strove to embrace all

humans, and to lead them to peace and rest. It was the teachers of the

Church in the Middle Ages who first ventured to subject war to the

principles of law. Prior to that it was accepted as a natural

phenomenon, like sickness or bad weather, and was often looked upon as a

judgment of God. Men like St. Augustine and Thomas Aquinas opposed this

conception and declared that one must differentiate between a just and

an unjust war. They did this upon the basis and within the framework of

a Christian belief, by which God had entrusted mankind with the

fulfillment of a moral world order to bind one and all; an order which

would provide the answer to the question of the righteousness or

unrighteousness of a war.

When by the advent of the Renaissance and the Reformation the spiritual

basis of the medieval order was shaken, this development into a

universal world peace was reversed. Life, formerly tending toward

stagnation and tranquility, now turned into a torrent which, as it swept

ever faster through the centuries, gradually swelled to the present

catastrophe. The individual, thirsting for freedom, cast off the

shackles of Church and class distinction. The State, declaring itself

sovereign, violated the universal order of God as represented by the

Church. Not recognizing any superior power, it began to conquer as much

living space as it could on this earth, unless the stronger will of

another nation did not impose any natural barriers. Peace hence existed

only in the naturally rather unstable equilibrium of powers obeying only

their own laws.

Thus there came into existence world empires such as the British Empire,

Russia, the United States, and the enormous French colonial empire,

which as living space today comprise more than one half of the surface

of the entire world.

The theory of war as a crime, created by Grotius, the teacher of

international law quoted by the Prosecution, failed because it was

incompatible with the dynamic power of this time. It represents, as we

know, only an attempt to keep alive through secular arguments the

afore-mentioned Christian concept of warfare. One cannot, however,

derive justice from simple nature, for it knows no other measure than

brute force, and always decides in favor of the stronger. Only

metaphysically can justice be defined as an independent force set above

natural impulses. Therefore the theory of Grotius necessarily petered

out in the eighteenth century since, thinking in a purely worldly sense,

it could not find a criterion for a just war.

This development from the old order to new liberty, in other words, the

fight of all against all, found its climax and culminating point in the

great French Revolution. By attempting to set human intellect upon the

throne of God, they reached the apex of secularization. Human intellect,

however, proved unable to balance the conflicting ideals of liberty,

equality, and brotherliness, that is, to practice true justice.

From that time on the search for true justice stirs the world. All

socialist theories are merely attempts at solving this problem. After

having been disappointed by the disadvantages of too much liberty,

mankind once again seeks security and order. Some wish to return to the

Christian truth of God, while others want to proceed in order yet to

solve the problem through human intellect.

The National Socialists, whose most revolutionary leaders wanted to go

further backward, and at the same time forward to deification of life

itself in a biological-political sense, have been conquered and

eliminated. Yet no solution of the problems of world order has hitherto

been found. The victorious powers hope to arrive at it, however, in

drawing a line between themselves and the vanquished by jointly

indicting and punishing them as criminals.

From whence, however, will they take the standard by which to define

justice and injustice in a legal sense? Insofar as such standards exist

by international law as applied up to now, no further statements are

required. That a special Court for the Trial was created by the Charter

of this Tribunal I will not object to. I must, however, protest against

its use, insofar as it is meant to create new material law by

threatening punishment for crimes which, at the time of their

perpetration, at least as far as individuals are concerned, did not

carry any punishment.

One cannot, by an arbitrary act, suddenly create new law when, after

centuries of revolutionary development, the old universal principles of

medieval law have been gradually abolished and the autonomous thinking

of the individual in the moral field has opened gate and door to

anarchy. As we know, the very cause of the general state of anarchy in

the sphere of justice, from which originated the crimes that are the

subject of the accusation here, was the fact that people had forgotten

to differentiate between might and justice. The success of so many

revolutions over once legitimate rulers “by the grace of God” has shown

that might apparently goes before right and that the latter can be

changed at will. By what would it then be possible to tell what is right

except through the force with which it is able to assert itself and hold

its own? This relativity of law which had come about, this positivism of

law, no longer concerned itself with a moral justification of law.

Can one expect that punishment will be recognized as just, if the

culprit was unable to foresee any punishment because at the time he was

not threatened thereby, and therefore believed himself able to derive

the authorization for his way of acting solely from the political aims

pursued? Of what help is reference to the ethical laws, if such must

first be found again? According to Justice Jackson’s opinion, however,

the Nazi Government from the start was never the representative of a

legitimate state which had pursued the legitimate aims of a member of

the international community. Only from such an attitude can the

Indictment for conspiracy be understood, which will be discussed later.

In fact this Indictment, as the entire argumentation of Justice Jackson,

is far ahead of its time. For there were no internationally recognized

standards according to which—outside of positive international law—the

legitimacy of states and their aims could have been judged, nor was

there an international community as such. Slogans about the legitimacy

of one’s own and of the illegitimacy of foreign aspirations served only

the formation of political fronts, just as did the efforts to brand

political adversaries as disturbers of the peace. Whatever they did,

they certainly did not create law.

Justice Jackson correctly declared that it would have been possible for

the conquerors to deal with the conquered as they saw fit. But, said he,

nondiscriminatory punishments without a final and fair establishment of

guilt would be a breach of promises repeatedly given and would be a

heavy burden on America’s conscience. For that reason he himself

proposed judicial proceedings which were to differ from ordinary

criminal proceedings by not admitting the usual tactics of obstruction

and delay by the defendants. However, an establishment of guilt was to

be arrived at on the basis of a just and fair trial. If the defendants

were the first leaders of a conquered nation which had to answer before

the law, they were also the first ones to whom the opportunity was to be

given to defend their lives “in the name of justice.”

If this phrase is to have a meaning, then it must also be of

significance for the interpretation of the Charter, because it would not

be reasonable if the Court were obliged to rest exclusively upon the

Charter without taking into consideration the convictions of others with

regard to law. In that case the judgment would represent a mere dictate

of force, against which there would be no defense “in the name of

justice.”

The Charter may therefore be applied by the Court only insofar as its

decrees are justifiable in all conscience, not only formally but also

materially. The Charter itself says that nobody shall be excused for a

violation of its decrees on the grounds of orders from his government or

from a superior. In that case it must apply this, its own logic, also to

itself, by allowing the judge to examine the congruence of its

prescripts with the general principles of legal concept. For a judge,

after all, is far more free and independent of the legislator than a

subordinate of his superior, or a subject of his dictator.

Then there is another question, namely, whether the decrees of the

Charter are really so much in opposition to the previous and ordinary

state of law, especially as to the fundamental ideas of all rules of

law, that the Court cannot acknowledge them as right or apply them. In

practice, the most serious problem consists in deciding which should

have precedence in the case of conflict—the Charter or the legal maxim

_nulla poena sine lege_.

An attempt has been made to justify disregard of this rule in this

specific instance with the highly political character of the Trial. Such

a justification, however, cannot possibly be accepted. The political

significance of a trial is usually apparent from its consequences rather

than during the course of the procedure and through the influence

exercised upon the legal norms to be applied. A judge should administer

law, and not deal in politics. Still less is he called upon to rectify

mistakes made by the politicians. Punishment, the establishment of which

in due time was neglected, may only be meted out by him on the strength

of a subsequent law if he would have done so in any case.

Basically, the principle of the division of power is presumably to be

maintained. By this principle Montesquieu divided the originally united

power of the absolute king into legislative, administrative, and

judiciary. The three different forms of expression of state domination

were to have equal importance, counterbalance each other, and so aid in

controlling one another. This system of the division of power

characterizes the modern constitutional state. Straining the point

somewhat, one might define the field of activities and competency of the

three different forms of expression of sovereign authority by stating

that the legislature has to deal with the future, the administration

with the present, and the judiciary with the past. The legislature sets

the standards to which life is to conform. From time to time these must

be changed in accordance with the changed way of living. But until then

they must remain valid.

Insofar as a mere establishment of norms of life is not sufficient it

will be shaped, as the case arises, by the administration.

Administration itself is bound by certain norms, but on principle is

free to move within the lawful bounds of its good judgment, so as to be

able to respond to the daily changing needs. Just as for the law-making

politician, the idea of serving a purpose is its main consideration.

The judge, on the other hand, may not decide according to the

usefulness, but should decide according to the law. In general, it is

not his task to shape, but to judge. He has to pass judgment on actions

after they have been committed, and examine conditions after they have

arisen in the light of whether and to what extent they corresponded to

the standards, or what juridical consequences they have brought about.

Therefore, as a matter of principle, his view is directed toward the

past. In the life of the state, which is continuously inspired by

politicians looking to the future, he is the restraining counterpole.

Although bound by the laws decreed by the politician, he is not merely

an executive organ. On the contrary, he should control the legislator by

re-examining the laws with regard to their conformity to the

constitution. This, logically, ought to include the examination of

whether the principle of the division of power was maintained, because

just as the judge may judge only _de lege lata_ and must leave the

decisions _de lege ferenda_ to the legislator, the latter in turn is

obliged to refrain from interfering with the former’s competency by

making laws with retroactive power.

The criticism of the administration of justice by the National Socialist

State is mainly based on its having abandoned the division of power. By

putting at the top the political Leadership Principle, the

Führerprinzip, it interfered dictatorially with the competency of the

judges. By means of the Police, that is, the administration, it arrested

and imprisoned people without judicial warrant of arrest, simply for

reasons of political prevention, and even rearrested those who had been

acquitted by the judge and set free. On the other hand, for political

reasons convicted criminals were withdrawn from the hands of justice.

Thereby, quite naturally, the sureness and clarity of the law were

seriously endangered.

But not even this National Socialist State dared renounce outright the

principle _nulla poena sine lege praevia_. In its police measures it

dispensed with their justification by the judge exactly as today the

execution of denazification sentences was justly not placed under the

jurisdiction of the Ministry of Justice by the Regional Council of the

American Zone, on the grounds of being “alien to justice.” By three

laws, however, the National Socialist State decreed an increase in the

scope of punishment previously in force with retroactive validity, but

they did not provide penalties for acts hitherto unpunishable. More

particularly, this was not brought about by the fact that by Article 2a

of the Criminal Code the possibility of criminal analogy was created,

because by this article a threat of punishment only was created,

although not retroactively; and everybody was enabled to conform.

A certain degree of protection against arbitrary judgments and the

splitting-up of law lay in the fact that the National Socialist State

was based on a specific ideology by which the judge was bound.

Concerning the close connection between finding of justice and ideology

the Swiss professor of law, Hans Fehr, of Berne, already in 1927 wrote

in his book, _Recht und Wirklichkeit; Einblick in Werden und Vergehen

der Rechtsformen_: “Without ideology law floats in a vacuum.... Whoever

has no ideology can have no sense of right and wrong...”

Fehr showed that every judge, as far as the law allows him latitude,

judges individually according to his ideology. In an era of liberal

freedom of ideology this naturally brought forth a danger for the

uniformity and sureness of the law. Therefore the liberal state in

particular had to make its criminal court judges conform closely to the

codified substance in each case and forbid them to employ analogies.

Fehr already pointed out the danger inherent in such judgment based on

codified substance, tending to give undue preponderance to the act over

the perpetrator. Following the lines of a dynamic jurisprudence, the

liberal school of legal conception, he therefore advocated an extension

of the judge’s authority to create law.

In that sense, as will be understood from the above, the nonliberal

states directed by a definite ideology had taken the lead. The Soviet

Union, after the Marxists had already long ago rejected the liberal,

allegedly objective, jurisdiction as “bourgeois class justice,” was the

first to introduce a proletarian class justice which deliberately

abandoned the idea of the equality of all before the law. The National

Socialists, according to their racial ideology, followed suit by forming

the thesis, “Right is what serves the people, wrong is what injures it.”

Inside such a solid ideological frame the dangers of criminal analogy,

which were still further narrowed down by Article 2a of the Criminal

Code, dwindled considerably.

In contrast to this, no fixed ideological base as a foundation for the

Charter is discernible. Since its signatories stand on very different

ideological ground we will have to proceed, as in the international law

valid hitherto, from the liberal idea of freedom of ideology. Therefore

the legal thesis _nulla poena sine lege_ should be especially sacred to

it. This is also proven by the fact that the Control Council for

Germany, by abolishing the criminal analogy of Article 2a of the

Criminal Code, brought the above maxim back again to all Germans most

emphatically.

It would be all the more unintelligible and intolerable for the German

sense of justice if this phrase were not to apply to Germans accused of

War Crimes. In itself the Charter is an exceptional law by the mere fact

that it was created only against members of the Axis Powers and based on

an agreement made for one year and subject to notice. If, in addition,

it should abolish the maxim _nulla poena sine lege praevia_,

specifically for actions that were not only within the scope of German

legality, but under most severe penalties had even been made a duty by

the Government of the sovereign German State, then all understanding

would cease for the interpretation that the Court is bound by the

Charter.

Nor is an examination of the political aims connected with the Charter

of any assistance. Justice Jackson has called the Charter and the Trial

a step toward “creating a juridical guarantee that he who starts a war

will pay for it personally.” The American commentator Walter Lippmann

stated elsewhere that the system of collective security for the

prevention of wars had broken down because nobody was prepared to

declare war on the country breaking the peace in order to help prevent a

war which did not directly affect them.

The means for combating the disease of war would have been just as bad

as the disease itself. In consequence of the fiasco of the collective

methods the conception of basing security in the future upon holding

responsible those individual persons accountable for breaking the peace

was evolved by the enemies of Germany in the last war. And this finally

led to the Nuremberg Trial. Taking one’s starting point from this fact,

today one might say: During this second World War revolutionary

developments have taken place; it has driven humanity beyond the bounds

of what was the modern age until a short time ago. The first but

essential steps to create a world state have been made.

The way to peace, as shown here, will be welcomed on principle, although

one will still doubt its absolute reliability. Justice Jackson himself

has expressed doubts whether punishment will serve to intimidate and

thus help prevent breaking the peace in the future. Only somebody

certain of victory will decide to wage a war and thus will not seriously

consider punishment, which would reach him only in the case of defeat.

Therefore the educational issue of this Trial, namely, to strengthen the

sense of justice, seems more important than the effect of intimidation,

which can also be achieved by warning for the future. The politician

will have to learn that the principle of division of power will have to

be observed by him, too, and that he will not find a judge willing

subsequently to condone his mistakes, because he will also punish him on

the basis of subsequent laws. Confidence in international jurisdiction,

which today still suffers from a suspicion of being easily misused for

political purposes, would be heightened considerably through such a

pronouncement. On the other hand, it would most certainly suffer by the

sentencing of acts whose punishable quality remained doubtful. Thus the

violation of the sentence _nulla poena sine lege_ could not be justified

even from the angle of political utility, although conversely one must

realize that the strengthening of the belief in the inflexibility of

justice as the basic pillar of the tremendous dynamics of political

forces serves peace best.

This result cannot be questioned on the basis of the individual

considerations presented by the prosecutors.

The French prosecutors have pointed out that living international law

could not be imagined without international morals, and that a moral

code has precedence over all claims for freedom by the individual as

well as by the nations. These certainly are facts well worth bearing in

mind. Correctly considered, however, they speak only for my viewpoint

that any strengthening of the sense of justice must not start out with a

violation.

When the French chief prosecutor declared that without punishing the

chief culprits of Nazi Germany there could be no future belief in

justice, then obviously he went too far. Justice does not grow out of

obtaining satisfaction for the violated sense of justice at any price.

Otherwise we should quickly arrive again at reprisals, at the endless

chain of vendetta. No; justice demands moderation and consideration of

motives and countermotives. And there the one-sided action taken only

against members of the Axis Powers violates the idea of justice. It is

impossible to justify it by a direct violation of its own principles,

that is, of the commonly prevailing rule: _nulla poena sine lege_. The

British chief prosecutor himself declared the possibility of subsequent

legislature to have been one of the most offensive doctrines of National

Socialist jurisdiction. He does, however, believe that the possibility

of punishing an act already branded as a crime does not represent a

change of the legal situation but only its logical further development,

and is therefore permissible. I do not at all want to contest the

institution of the Tribunal as thereby justified by him. But the

question certainly arises whether this Tribunal is obliged to punish

even though no penal law can be found which threatened the offenses with

punishment at the time of their commission. To affirm this question

would be going much further than the National Socialist judicial

procedure which is so vehemently denounced by the British chief

prosecutor. He did not offer the slightest motivation for such a course,

and appears thus to reject it.

Moreover, he would certainly be ready to admit that the Charter, if it

not merely presumed but possibly wished to establish that the acts

concerned were punishable, ought to have stated this clearly and

unambiguously. The passage involved, in Paragraph 6 of the Charter,

completely lacks such clarity. It reads: “The following acts, or any of

them, are crimes coming within the jurisdiction of the Tribunal.”

This may be interpreted either as a mere regulation of competence or,

albeit with difficulty, as a regulation originally establishing some act

as being punishable. Therefore, this passage must definitely be

interpreted in favor of the defendants according to the established

legal principle _in dubio pro re_. The next phrase, “for which there

shall be individual responsibility,” and the material regulations for

punishment quoted in the following paragraphs, according to their

wording leave no reason for doubt as to their interpretation. However,

they contain only modifications in dealing with acts established as

punishable. The Tribunal may decide whether or not and to what extent

they are compatible with the principle _nulla poena sine lege praevia_.

I find the viewpoint of the American prosecutor most difficult to

understand. On the one hand he denounces all legal arbitrariness on the

part of the Nazis, yet on the other hand he is not prepared to acquiesce

in the punishment of the defendants only for those crimes which were not

merely considered reprehensible at the time they were committed, but

were actually threatened with punishment. On the one hand he does not

desire executions or punishment without first having established guilt

in a fair manner; on the other he demands a strict application of the

Charter even where it contains new laws surprising the defendants. On

the one hand he wants the Trial to appear to future generations as the

fulfillment of the human yearning for justice; on the other, in the face

of objections to the Charter, he invokes the power of the victorious,

who really could have made short work of the defendants.

It seems to me that he speaks too much as an accuser, the sole role he

really wants to assume according to his own words. For the

prosecutor—especially in Anglo-American procedure—the word “justice”

has a different meaning than for the judge, let alone the defendant.

Unquestionably Justice Jackson thinks of himself not only as a

prosecutor but to a large degree also as politician. To him this Trial

is to serve not only as an atonement for wrongs committed, but also, and

above all, in order to develop legal principles which he wishes to

enforce by precedence and from which he expects a consolidation of

international law for the prevention of future wars. Whoever approaches

a cause with so many preconceived opinions and intentions lives in so

completely different a world from that of the defendants, that from them

to him, and vice versa, hardly any ways of understanding will be found.

As far as the political side of this Trial is concerned, I have already

stated why it must not exert any influence on the course of the

proceedings. I merely wish to point out here that a policy applied by

the victors to the vanquished, which perhaps may be characterized as one

of “least resistance,” has once before proved to be a failure—namely,

with regard to the question of disarmament under the Versailles Treaty.

If Justice Jackson really wishes to forego straightforward decision by

force and is prepared to become a party to and submit to a legal

procedure, although not bound to do so, then he will have to forego

presenting arguments which do not belong in a legal procedure. A hybrid,

which is neither a clear act of violence nor a trial in the usual

sense—however much one may try to place it in a halfway position under

the name of a political trial—is an absurdity. It is true that history

knows of other so-called “political” trials of similarly vague

character. I want to point out only the sentencing of Louis XVI by the

French National Assembly. There, however, it was clear from the

composition of the judicial _gremium_ as well as from the procedure

employed, that this was not a matter of finding justice but amounted

simply to a revolutionary act of violence, and courage to proceed with

it was found in mutual exhortation. But here outstanding professional

judges have been entrusted with the proceedings by the victorious

powers. They have been given certain directions by the Charter, but

otherwise their judicial discernment was granted the most far-reaching

authority. There can be no doubt that the politicians called upon the

judges to relieve them of a job which they could not manage themselves.

And now the judges will have to decide by their own competence if and in

how far they are able to execute the mandate. With any remainder the

politicians will have to manage somehow or other on their own.

I was not able to pick a single one from among Justice Jackson’s

arguments which might cause the Tribunal to punish acts which were not

punishable at the time of their perpetration. For this reason I shall

examine the individual points of the Indictment only from the legal

situation prevailing at the time of perpetration.

Of the crimes of which all the defendants are accused the conspiracy is

most extensive as regards time and object. Professor Exner, in his

capacity as a university teacher of criminal law, has given special

attention to this legal conception for our Trial. In order to save time

by avoiding a duplicate report, Professor Exner has placed the result of

his research at my disposal. In conformity with him I have to present

the following regarding this question.

The concept of conspiracy belongs to the sphere of Anglo-American law.

Even there, however, it is in no way uncontested; remarkably enough,

some opinion in England has it that this conception is long since

obsolete: “It has been said that in England this law has become entirely

disused.”

In these proceedings it is a different point that matters. The concept

of conspiracy as used by the Prosecution is entirely unknown to German

law. I would like, therefore, to begin my short legal argument with two

questions which give rise to doubts.

(1) May a criminal procedure, bent on realizing justice, employ legal

concepts which are and always have been utterly alien to the defendants

and to the legal trend of thought of their people?

(2) How would this be consistent with the rule _nullum crimen sine lege

praevia_, a principle which the British chief prosecutor has

acknowledged as a fundamental principle of civilized criminal law?

Can it be honestly stated that already before 1939 not only the

initiation of an illegal war was held to be an act punishable

individually, but also the conspiracy to initiate such a war? The

affirmative answer to this question given by the Prosecution has

surprised not only Germany. May I clear up, in this connection, a

misunderstanding. It has been said that the National Socialist State

itself had issued criminal laws ignoring the rule of _nullum crimen sine

lege_, so that the defendants had no right to invoke this rule. It is by

no means my purpose to defend National Socialist criminal law, but

honesty compels me to say that this is an error. The Third Reich has—as

mentioned before—issued three laws increasing the penalty for an action

with retroactive effect by applying the death penalty to acts which

carried, when committed, prison sentences only. But in no case so far

was a lawful act declared punishable, nor an act which was not a crime

when committed retroactively converted into a crime. And that is the

case here.

However, the Charter, which I follow now, has enjoined the use of the

concept of conspiracy. I do not, therefore, go any further into these

questions of doubt. At any rate, it would appear therefrom that if such

a concept is to be applied to Germans, this must only be done with all

limitations imposed by equity.

Anglo-American law defines conspiracy as an agreement between a number

of persons to commit crimes, “a combination or an agreement between two

or more persons for accomplishing an unlawful end or a lawful end by

unlawful means.”

Similar definitions keep recurring. Two points form the main

characteristics: “agreement” and “common plan.”

Agreement means an explicit or tacit understanding. If several persons

pursue the same end independently of one another, then there is no

conspiracy. It is accordingly not enough that the plan be common to all

of them, they must have knowledge of this community and everyone must

voluntarily accept the plan as his own. The very expression “to

conspire” implies that everyone contributes knowingly and willingly. A

person under duress is no conspirator, for duress does not produce

agreement, at the utmost purely external assistance. For instance, if

somebody imposes his will on another, then there is no conspiracy.

Therefore, a conspiracy with a dictator at its head is a contradiction

in itself. A dictator does not enter into a conspiracy with his

followers; he does not make any agreement with them, he dictates.

Knowledge and will of the conspirators are aimed at a common plan. The

contents of such a plan can be very different. In English law, for

instance, conspiracies are known for committing murder, fraud,

blackmail, false accusation, certain economic delicts, and so forth. In

all these cases, conspiracy is treated as a crime _sui generis_; and

therefore the conspirators are punishable for conspiracy regardless of

whether a murder, a fraud, or even a mere attempt at such crimes has

been committed in any given case.

According to German terminology, we would say that conspiracy is one of

the cases where even preparation of a crime is punishable. Such cases

are known to German criminal law. The partner in an agreement for

committing a crime against life is punishable. According to Article 49b

he is punishable for a crime of preparing a killing even if the intended

action failed to take place.

In a certain sense Article 129 can also be applied here. Participation

in an association pursuing certain aims hostile to the state is

punishable, again independently of whether a crime has actually been

committed. But if it becomes a fact, everybody is charged with his own

culpability in this action. If it happens that the individual

conspirator is guilty neither as the perpetrator, nor as an instigator,

nor as an accessory to the actual crime, then he can be charged only

with participation in an association hostile to the state, but not with

such a crime.

The prosecutors in this Trial go further. They want to punish, under

certain circumstances, the conspirators for individual actions they did

not participate in. To take the most significant example: They want to

charge a conspirator even with those crimes which were committed prior

to his entering the conspiracy.

With the scant material at my disposal, I was not able to find any

evidence that this has any foundation in English or American law. One

thing is certain, however, that such a conclusion is utterly contrary to

the German criminal law, for the latter is based on the self-evident and

unanimously accepted principle that a person is responsible for an

action only when he was the author, or at least the coauthor of it.

Let us now look at the Charter. The Charter quotes two cases which are

declared as punishable and which fall within the competence of the

Court:

(1) Article 6(a) states: Participation in a Common Plan or Conspiracy

for the perpetration of a Crime against Peace. As such are listed the

planning, preparation, launching, and conducting of a war of aggression

or of a war involving the violation of international treaties or

assurances. It is remarkable that a concept which belongs to the

internal criminal and civil law of England and America is applied here,

without more ado, to international facts. The Charter does this by

treating individuals who plan or conduct illegal wars as gangsters

participating in a highway robbery. This is a piece of legal audacity,

because in this case the sovereign state stands between the individuals

and the result of their actions, and this removes all foundation from

the comparison with facts in national daily life. Up to now the concept

of conspiracy has been unknown to international law.

(2) According to the last paragraph of Article 6 of the Charter, the

partners in a conspiracy or in a common plan to commit crimes against

peace, the law of war, or humanity are responsible for all actions

committed by any partner while executing such a plan. This is

fundamentally quite another thing from the case mentioned in (1). It

does not mean punishment of the crime of conspiracy, but responsibility

for the individual act of another conspiracy. In other words,

conspiracy, as taken here, is not a crime _sui generis_, but a form of

complicity in the actions of the conspirators. Mr. Justice Jackson has

given us an example: If three robbers conspire and one of them kills the

victim, then all of them, through their complicity, are responsible for

the killing.

The case mentioned under (2) is of the greatest importance in this

Trial. The individual conspirator is to be punished for crimes committed

not by himself, but by another conspirator. One defendant, who had

nothing to do with the annihilation of the Jews, is to be punished for

this Crime against Humanity only because he was a partner in a

conspiracy.

The question at issue is: In this Trial, are principles of liability to

be applied which go beyond our German criminal law?

Article 6 of the Charter says that all conspirators are responsible for

any action committed by any one of the conspirators “in execution of

such plan.” These are the decisive words for the interpretation.

In my opinion the meaning of these words is as follows: The other

conspirators are also responsible for any actions of their comrades

forming part of the common plan which they helped to conceive, desired,

or at least condoned. A few examples:

Case (a): A, B, C, and D commit a concerted housebreaking in a villa.

They happen to find a girl in the house, and A rapes her. B, C, and D

cannot be charged with this rape. The reason is that A was not, when

committing the crime, acting “in execution of the plan” but at best “on

occasion of the execution of the plan.” The point at issue is not the

execution, but merely the occasion arising while executing the plan.

This view, which will hardly be disputed, is of importance in that it

shows that there cannot be any question of responsibility for all the

actions of the partners to the conspiracy.

Case (b): While exploring the villa, B and C begin to fight about some

loot and B knocks down C. This action, too, was not committed “in

execution of the plan,” but was foreign to the plan. A and D are not

responsible for this “excess.”

The third case: While exploring the villa the burglars are detected by

the owner. D shoots him. Now the issue depends on the special

circumstances of the case. Let us, for instance, go back to the example,

quoted by Mr. Justice Jackson, of the three robbers, one of whom kills

the victim. Considering the nature of American gangsterism, it would

appear quite normal that the individual gangsters concerned bore in mind

the possibility of such an occurrence, and were quite prepared to accept

it. If this is the case they are responsible for the killing, as

accessories or assistants, according to our opinion as well. In such a

case there would be no objection to Mr. Justice Jackson’s solution. But

if the case is different, if the fatal issue had not been foreseen by

the others, perhaps could not be foreseen—for instance, if they assumed

that the inhabitants of the house were away from home—then there exists

no liability on the part of the coconspirators. They are responsible

only for acts incidental to the “execution of the plan.” The common

plan, however, includes only what was foreseen and approved from the

beginning. Other ways of execution are alien to the plan.

Mr. Justice Jackson’s argumentation is deceptive insofar as he derives a

common principle from a decision which clearly and obviously happens to

apply to the “normal case” of his parable of the robbers and can hardly

be applied to any other case. As the case stands, coresponsibility in

any single act could be made to apply to those conspirators only who

foresaw and approved of their comrade’s act.

A legal principle extending the fellow conspirator’s responsibility to

actions not included in their common responsibility is alien to German

law. Whether or not it belongs to Anglo-American law, the application of

such a principle in the present Trial would make punishable acts which

heretofore could not be punished. This would clearly contradict the rule

of _nullum crimen sine lege_, a principle, as I previously emphasized,

acknowledged explicitly by the British prosecutor, too. In view of the

fact that Article 6 can be interpreted in various ways, we should select

from two possible interpretations, as corresponding to the author’s

will, the one which does not contradict the said principle.

There is such a thing as withdrawal from a conspiracy, and also later

entrance into it. The question is: What about responsibility for acts

committed during the period of nonmembership? The Prosecution appears to

be of the opinion that a person entering into the conspiracy thereby

approves anything previously done by any conspirator in pursuance of the

common plan. Such an assertion seems to arise out of the civil law

theory of a subsequent ratification of a business transaction. This

theory is not tenable in criminal law. The Charter does not mention

anything of the sort; after all, the common plan, in the execution of

which the act was perpetrated, was common only to those who were members

at that time. Even if one takes the act of joining the conspiracy to be

an approval of any acts so far committed, the approval of a crime

already committed does not establish partnership in such crime. The

person joining later has nothing to do with these crimes. The same

applies to the withdrawal from the conspiracy. The person withdrawing

can be made responsible only for what happened during his membership,

even if the result has come about only after his withdrawal. Any other

opinion would again lead to the result that an _ex post facto_ law is

being applied. Now, did the 22 defendants participate in a conspiracy

within the meaning of the Indictment, namely, a conspiracy to commit

crimes against peace, usages of war, and humanity?

If such a conspiracy had existed, then Hitler would have been—nobody

can doubt it—the leader of these conspirators. But it has already been

emphasized that a conspiracy headed by a dictator is a contradiction in

itself. Hitler would have ridiculed the suggestion that he had made an

agreement with his Ministers, Party leaders, and generals to wage this

or that war, or to conduct the war by such or such means. He was an

autocrat. He was not concerned with the approval of these men, but

merely with having his decisions executed, whether they agreed with

these decisions or not. Quite aside from legal considerations, Hitler’s

environment, in fact, was quite different from a band of conspirators,

as visualized by the Prosecution before the hearing of evidence. Apart

from a small Party clan, he was surrounded by an atmosphere of distrust.

He trusted neither the “defeatist club” of his Ministers nor his

“generals.”

Such was already the case before the war, and his surroundings during

the war have been described by witnesses with great impressiveness. A

cunning system of secrecy insured that the plans and aims of the Führer

remained unknown to his associates as long as at all possible, so that

his most intimate assistants time and again were taken by surprise by

the events, and, in fact, were shocked to learn some of them only at the

present Trial. This system of secrecy also insured an isolation of the

individual collaborator, since one person was not allowed to know what

the other did. Does this look like a conspiracy? In fact, Hitler

complained at times that the generals were “conspiring” against him, and

used, strangely, this very word while speaking of those who today are

charged with having conspired with him. The hearing of evidence

repeatedly mentions conspiracies, but conspiracies against Hitler. From

a psychological point of view it is, to say the least, highly improbable

that the score of survivors of the Third Reich selected and put in the

dock by the Prosecution should have formed a gang of conspirators in the

sense of the Indictment. In this group of people all homogeneity as to

outlook, background, education, social position, and function is

lacking, and some of the defendants only met in the dock.

The Prosecution considers the Party with its organizations as the

nucleus around which the conspiracy formed. We should, however, in this

connection consider the different attitude displayed by the individuals.

Some of the defendants have never been Party members at all, or, at any

rate, not for a long time, and only a few of them have played an

important part in the Party. Some held top positions in the Party and

its organizations, and devoted their entire activity to the aims of

these organizations, while others did everything in their power to

eliminate from their sphere of activity any influence of Party and SS.

The NSDAP was founded in a period of utter powerlessness of the State

and of general war-weariness of the people at a time when, truly, no

intelligent person thought of a second war, much less of a war of

aggression.

But were not some of the defendants’ aims attainable without war?

Presumably every true German from the bottom of his heart desired the

union of all adjoining German territory with the Reich. This applied to

the Saar territory, Austria, Memel, Danzig, and, as a hope lingering in

the far future, also to the Sudeten territory. In the past they all had

been parts of the German Reich, they all would have returned to the

German Reich already in 1919, had the right of self-determination

solemnly promised to all peoples been realized. But these objectives of

German longing could be reached by peaceful means. And in fact, they had

been reached without a shot or a stroke with the one exception of

Danzig, which would have been managed in the same peaceful way if the

Führer had had a shred of patience and the Poles a shred of good will.

But they neither wanted nor believed in a war. Hitler was thought

capable of large-scale bluffing, but not of launching the catastrophe of

a war. I cannot, therefore, believe in a conspiracy to commit crimes

against peace and the usages of war. May I add two points of general

importance:

(1) The first point refers to Göring’s attitude immediately previous to

the outbreak of war. He was at that time Hitler’s confidant and friend,

the country’s second string, and he is now the chief figure among the

defendants. If there had been, in truth, a conspiracy to launch wars of

aggression at that time, then he would have taken second place within

such a conspiracy, yet it was actually he who tried everything within

his power during the last days of August 1939 to prevent the attack on

Poland, and who tried behind Hitler’s back to maintain peace. How can

this be consistent with a conspiracy for initiating wars of aggression?

Nor did he approve of a war against Russia and strongly advised the

Führer against such a war.

(2) If there had been a conspiracy to commit war crimes, then the war

would have been waged, from the very beginning, with utter ruthlessness

and disregard of rules of war. Just the contrary actually happened. In

fact, during the first years of the war, international law was on the

whole respected. Especially in the beginning every endeavor was made to

wage war with decency and chivalry. If any evidence is needed, a glance

at the orders of the German High Command of the Armed Forces regulating

the behavior of the soldiers in Norway, Belgium, Holland is sufficient

proof.

MARSHAL: The Tribunal adjourns until tomorrow.

[_The Tribunal adjourned until 5 July 1946 at 1000 hours._]

ONE HUNDRED AND SEVENTY-SECOND DAY

Friday, 5 July 1946

_Morning Session_

THE PRESIDENT: Dr. Stahmer.

DR. STAHMER: I continue.

Number 2. If there had been a conspiracy to commit war crimes, then the

war would have been waged from the beginning with utter ruthlessness and

disregard of rules of war. Just the contrary happened. In fact, during

the first years of the war...

THE PRESIDENT: Dr. Stahmer, the Tribunal thinks you got a little bit

further with your speech.

DR. STAHMER: I had gone somewhat further, that is true; but in order to

get this into the context again I have started again with Number 2, but

if the Court wishes, I can continue where I stopped.

Especially in the beginning every endeavor was made to wage war with

decency and chivalry. If any evidence is needed, a glance at the orders

of the High Command of the Army regulating the behavior of the soldiers

in Norway, Belgium, Holland, is sufficient proof. Moreover, a leaflet

with “10 Commandments for the Conduct of the German Soldier in Wartime”

was issued to the soldiers when they went into the field. Field Marshal

Milch has read them out from his pay book, during this Trial. They all

obliged the soldier to act in a proper manner and according to

international law.

A gang of conspirators at the head of the state, which plans to wage a

war regardless of right and morals, would certainly not send their

soldiers into the field with a detailed written order saying just the

opposite.

I believe the assumption of the Prosecution that these 22 men are

conspirators against peace and the laws of war and humanity is quite

erroneous.

It is up to counsel for the individual defendant to show what connection

his client might have had with the alleged conspiracy.

I just mentioned that Reich Marshal Göring was the second man in the

State. During the Trial the Prosecution also referred repeatedly to this

elevated position of Göring’s and tried to make it the basis of a

special charge against the defendant, pointing out that Göring, by

virtue of this advantageous position, knew about everything, even the

most secret matters, and had the possibility of intervening

independently in a practical way in the course of government business.

This opinion is wrong and is based on ignorance of the importance of his

position. It meant that according to rank Göring was the second man in

the State.

This rank was due to the fact that Hitler, in the fall of 1934, had made

a will and by a secret Führer order had appointed Göring as his

successor in the Government. In 1935 or 1936 this succession was

confirmed in an unpublished Reich law which was signed by all the

ministers. On 1 September 1939 Hitler announced this law in the

Reichstag. In this way the successorship of Göring became known to the

German people.

Göring’s task of deputizing for the Führer in the Government was to

apply only in the event of Hitler’s being incapacitated by illness or

absence from Germany—this occurred when in March 1938 Hitler spent a

few days in Austria. During Hitler’s presence, that is, as long as

Hitler exercised office himself, Göring derived no special powers from

the deputyship. In this instance his authority was limited to the

offices directly under him, and he was not entitled to issue any

official directives to other offices. From this follows that, although

the second man in the State, Göring could neither rescind, nor change,

nor supplement Hitler’s orders. He could give no orders whatsoever to

offices of which he was not directly in charge. He had no possibility of

giving any binding orders to any other office, whether it were an office

of the Party, the Police, the Army, or Navy, nor could he interfere in

the authority of those offices which were not his own.

This position as second man in the State cannot, therefore, be judged as

especially incriminating for Göring; nor is it qualified to serve as a

basis for the assumption of a conspiracy.

The Defendant Göring never participated in the drafting or execution of

a Common Plan or Conspiracy which was concerned with the crimes stated

in the Indictment.

As already emphasized, the participation in such a conspiracy

presupposes in the first place that such a common plan existed at all

and that, therefore, the participants had the intention and were agreed

to carry out the crimes of which they are accused. These presuppositions

are not in evidence in the case of Göring. In fact, one may assume the

contrary. It is true that Göring wanted to do away with the Treaty of

Versailles and to secure again a position of power for Germany. But he

believed he could obtain this goal, if not with the legal means of the

League of Nations, at least with political means alone. The purpose of

rearmament was only to give more weight to the voice of Germany. The

Weimar Government, which could not even express the self-determination

of the Germans after 1918 in the surely very modest form of a

German-Austrian customs union, though they advocated this determination

themselves, owed the lack of success of their foreign policy, in

Göring’s opinion just as in Hitler’s, mainly to the lack of respect for

the German means of imposing power. Göring hoped, strengthened in his

belief by Hitler’s surprising initial successes, that a strong German

army by its mere existence would make it possible to secure German aims

peacefully, as long as these aims kept within reasonable limits. In

politics a state can only have its say and make its voice heard if it

has a strong army to back it up, which demands the respect of other

states. Only recently the American Chief of Staff, Marshall, said in his

second annual report that the world does not seriously consider the

wishes of the weak. Weakness is too big a temptation for the strong.

There was no arming for an aggressive war; not even the Four Year Plan,

the purpose and aim of which have been clearly explained by the

defendant himself and by the witness Körner, was aimed at the

preparation of an aggressive war.

Field Marshals Milch and Kesselring have both testified in perfect

agreement that the Air Force created by the armament program was only a

defensive air force which was not fit for an aggressive war and which

was therefore looked upon by them as a risky proposition. Such a modest

rearmament does not allow for any conclusions of aggressive intentions.

After all this it is clear that Göring did not want a war. By nature he

was an opponent of war. Outwardly also, in his conferences with foreign

diplomats and in his public speeches, he has expressed with all possible

frankness his opposition to war at every opportunity.

The testimony of General Bodenschatz explains most clearly the attitude

of Göring toward war. He knew him intimately from the first World War,

and he has exact knowledge of the attitude of Göring toward war from

frequent conversations he has held with him. Bodenschatz states that

Göring repeatedly told him that he knew the horrors of war very well

from the first World War. His aim was a peaceful solution of all

conflicts and to spare the German people, as far as possible, the

horrors of a war. A war was always an uncertain and hazardous thing and

it would not be possible to burden with a second war a generation which

had already experienced the horrors of one great world war and its

bitter consequences.

Field Marshal Milch also knows from conversations with the Defendant

Göring that the latter opposed a war, and that he advised Hitler in vain

against a war with Russia.

In public the Defendant Göring, in his many speeches since 1933,

frequently emphasized how he had his heart set on maintaining peace and

that rearmament had only been undertaken to make Germany strong

outwardly, thus to enable her to play a political role again.

His serious and honest will for peace can best be seen from the speech

which he made at the beginning of July 1938 in Karinhall before all the

Gauleiter of the German Reich. In this speech he emphasized

energetically that the foreign policy of Germany had to be directed in

such a way that it would under no circumstances lead to war. The present

generation had still to get over the last world war; another war would

shock the German people. Göring had not the slightest reason to hide his

true opinion before this gathering, which consisted exclusively of the

highest Party leaders. For that reason, this speech is a valuable and

reliable proof for the fact that Göring really and truly wanted peace.

How deeply the Defendant Göring was interested in maintaining good

relations with England is shown by his conduct at the conference with

Lord Halifax in November 1937 at Karinhall, in which Göring, with full

candor, put before Lord Halifax the aims of German foreign policy: (a)

Incorporation of Austria and the Sudetenland into Germany; (b) return of

Danzig to Germany with a reasonable solution of the Corridor problem. He

pointed out at the same time that he did not want to reach these aims by

war and that England could contribute to a peaceful solution.

The meeting in Munich in the fall of 1938 was arranged at his

suggestion. The conclusion of the Munich Pact is essentially due to his

influence.

When, due to the occupation of the remainder of Czechoslovakia in March

1939, the relations with England had deteriorated considerably because

England was very angry about this step of Hitler’s, which was a

violation of the Munich Pact, Göring made serious efforts for the

restoration of normal relations. In order to achieve this goal he

arranged the meeting, described by the witness Dahlerus, with English

industrialists at the beginning of August 1939 in the Sönke-Nissen-Koog.

In an address he pointed out that under no circumstances must a war with

England come about, and he asked those present to contribute to the best

of their ability to the restoration of good relations with England.

When, after the often-quoted speech of Hitler’s to the

commanders-in-chief of the Armed Forces on the Obersalzberg on 22 August

1939, the danger of a war became imminent, Göring immediately—that is,

already on the following day—summoned the witness Dahlerus from Sweden

and endeavored, passing over the Foreign Office, to reach an agreement

with England for the prevention of war on his own responsibility.

The objection was raised here that Göring had left Dahlerus in the dark

as to his true intentions. His efforts were not aimed at the maintenance

of peace but only at persuading England to deny to the Poles the support

guaranteed to them and thus to separate England from Poland, which would

enable Germany, after this separation, to exert pressure on Poland to

submit to the German demands or to attack Poland and to realize her

plans toward Poland without any risk. Any doubt about the honest will

for peace is unjustified; the imputed intention was far from Göring’s

thoughts.

If this objection is substantiated by the fact that Göring did not

inform the witness Dahlerus either of the content of the Führer speech

of 23 May 1939 or that of 22 August 1939, then it cannot be considered

relevant and nothing is gained by it. Under no circumstances could

Göring inform a third person—and especially a foreigner—of those

strictly confidential speeches without exposing himself to the

accusation of high treason or treason against his country. These

speeches were all without significance as far as the task given to the

witness was concerned, especially since the peculiar situation arose

here that Göring—after the efforts of the diplomats had reached a

deadlock—as a last resort knew of no other way out than to use his

personal relations, his personal influence, and his personal prestige.

The only thing that mattered for the activity of Dahlerus was that the

foreign political situation, which had become dangerously critical

through the quarrel between Germany and Poland and of which the witness

was fully aware, had to be straightened out by an appropriate attitude

on the part of England.

That Göring’s aim was not to separate England from Poland has been

clearly proven by the fact that Göring, to begin with, had transmitted

to the British Ambassador in Berlin, Henderson, the text of the note

which contained the propositions made by Germany to Poland—propositions

which were called moderate by Henderson—and that, hereby, he tried to

come to direct negotiations with Poland. Poland, however, obviously did

not want an agreement with Germany. Several circumstances point to that.

The conflict with Poland lasted for almost a year. Why did Poland not

ask for a decision by a court of arbitration on the basis of the

concluded arbitration agreement? Why did Poland not appeal to the League

of Nations? Obviously Poland did not want any arbitration regarding

Danzig and the Corridor.

The utterance of the Polish Ambassador, Lipski, to the First Secretary

of the British Embassy, Mr. Forbes, which was stated by the witness

Dahlerus, is even greater proof of the unwillingness of Poland to come

to an understanding. Lipski said he was not interested in any note or

proposition by Germany; he was convinced that in the event of war there

would soon be a revolt in Germany and the Polish Army would march in

triumph to Berlin. This intransigent and incomprehensible attitude of

Poland obviously finds its explanation in the fact that she felt too

strong and secure as a result of England’s assurance. The reference to

the imminent revolt makes one believe that Poland was informed of the

plans of the Canaris group. There can therefore be no question of an

ambiguous attitude or false play on the part of Göring.

The serious will of the Defendant Göring to maintain peace and to

restore good relations with England is expressly recognized by

Ambassador Henderson, who, due to his thorough knowledge of the German

conditions and his connections with the leading men of Germany, summed

up Göring correctly. I refer here to his book _Failure of a Mission_, in

which, on Page 83, it says:

“I would like to express here my belief that the Field Marshal,

if it had depended on him, would not have gambled on war as

Hitler did in 1939. As will be related in due course, he came

down decisively on the side of peace in September 1938.”

Lord Halifax also, according to the information he gave, had no doubts

that Göring’s efforts for the prevention of war were sincere.

That after the outbreak of the war, which he had wanted to prevent with

all the means at his disposal but had been unable to prevent, Göring, as

Commander-in-Chief of the Air Force, exerted all his strength to win the

victory for Germany is not contrary to the sincerity of his will to

avoid the war. From that moment on he knew only his duty as a soldier to

his fatherland.

At different times Hitler made addresses to the commanders-in-chief of

the Armed Forces, thus for instance in November 1937, on 23 May 1939,

and on 22 August 1939. The Defendant Göring at his personal

interrogation has already given extensive explanations as to the

importance and the purpose of these addresses. For the question of

whether the fact that he was present at these addresses might constitute

perhaps a complicity in a conspiracy in the sense of the Indictment, it

is important that on these occasions Hitler solely and one-sidedly made

known his own opinion about military and political questions. The

participants were only informed of what possible political developments

Hitler expected. The participants were never asked for their opinion nor

had they even any possibility to express their criticism of Hitler’s

opinion. Hitler did not ask his generals to understand his orders; all

he asked of them was to carry them out.

His autocratic leadership of the State was exclusively directed by the

principle _sic volo, sic jubeo_, which he carried through to its logical

conclusion. How rigidly Hitler followed this principle can be seen from

the fact that after the address of 23 May 1939—as Milch stated in his

testimony—he expressly forbade all participants to comment on the

speech, even among themselves. That Hitler was irrevocably resolved on

an aggressive war could not be deduced by the listeners of the said

speeches, and they did not do so. This has been confirmed unanimously by

all witnesses who were present when those addresses were given.

At that time Hitler had actually not yet planned a war. In that respect

the testimony of Field Marshal Milch is very informative. When the

witness, in the months following the speech of 23 May 1939, repeatedly

pointed out to Hitler in personal reports that the Air Force was not

ready for action with its bombing squadrons and had hardly any stocks of

bombs, Hitler refused to give an order for the production of bombs and

remarked that this manufacturing was unnecessary and superfluous. Hitler

persisted in this refusal, although Milch pointed out that the

production would take several months. An order to that effect was given

by Hitler only on 20 October 1939.

Hitler’s discourse before the commanders-in-chief can be easily

explained by the odd inclination of Hitler frequently to develop

political ideas without ever thinking of their realization. In each case

his practical policy resulted from the requirements of the actual

development.

The defendant is accused of having plundered the territories occupied by

Germany, thereby violating the Hague Convention concerning Land Warfare.

This accusation is not justified.

During his examination the Defendant Göring has explained in detail,

with absolutely noteworthy reasons, that the Hague Convention on Land

Warfare dating from the years 1899 and 1907 cannot be made to apply to a

modern war, since they had become obsolete and insufficient in some

respects at the beginning of World War II. At the time when they were

drafted, air warfare, economic warfare, and psychological warfare were

still unknown. Total war, which put the entire people and the entire

national economy without exception at the service of the war, was also

not known. Especially, economic warfare was not considered at all. Due

to this gap, there is no international law which has been generally

recognized for economic warfare. Therefore the old statement of Hugo

Grotius that everything is permitted in war (_quod ad finem belli

necessarium est_) applies to economic warfare.

Naturally, this principle only applies so far as it has not been

affected specifically by a differing settlement through treaties.

The following must be said about the legal situation as it stands:

Until the beginning of World War I it was generally acknowledged in

international law—in any case as far as land warfare is concerned—that

the war does not affect any private legal relations between the citizens

of the belligerent states, that private property on principle was

inviolable, that the war would only be pursued with arms, and that the

enemy civilian population would not be affected by it. This method of

warfare suffered a basic change at the outbreak of World War I, when

England, in the field of naval warfare, applied her interpretation of

war of people against people. At that time the enemy powers resorted to

the policy of paralyzing the entire German national strength,

disregarding all established rules of the law of naval warfare and of

neutrality law by cutting off the necessary raw materials and import of

food. This new type of warfare corresponded to the Anglo-Saxon

interpretation, which was joined by France at the beginning of World War

I, that is, that war is not only fought against the troops in combat but

against the entire population of the enemy. The citizen of the enemy

state is the enemy of England; his property is enemy property, which is

subject to seizure by the British Government. With this, naval warfare

was not only directed against the combat forces, but also against the

peaceful subjects of the belligerent enemy. This goal was achieved by

the total blockade carried out by England. The Hague Convention did not

contemplate a total blockade in the form in which it was carried out by

England. This blockade made any supplying of Germany through neutral

countries impossible.

Under these circumstances Germany cannot be blamed for applying to

warfare on land the method used by England by means of her naval power.

This fact leads to the following consideration:

The rules of land warfare, according to their meaning, used to apply to

land warfare. There the principle of protection of private property

obtained. In naval warfare, however, private property was unprotected.

Now, is it possible for the rules of land warfare with their

restrictions to apply to a combined sea and land war? Would it be just

that merchandise should be taken away from a party at sea who would not

be allowed to touch similar goods belonging to the other party on land?

According to established international law, the principle applies now as

before that private property is actually inviolable during war. This

principle suffers exception only insofar as the Hague Convention on Land

Warfare permits certain encroachments on private property caused by an

emergency in which the state may find itself, which are deemed justified

to the extent in which they appear necessary in the interests of

self-preservation of the state. Within this scope, therefore, certain

actions are permitted during war which are not normally consistent with

the laws of war and actually contrary to international law.

By the fact that enemy warfare disregarded the established rules of

naval warfare, Germany was driven into a state of economic emergency. If

the enemy powers had observed this established law of naval warfare,

then Germany could have supplied herself through neutral countries, and

the state of economic emergency during the war would not have arisen.

But since the enemy powers failed to observe the established blockade

regulations, how could they expect Germany to observe the regulations on

requisitioning, which form part of the rules of land warfare?

Through the action of the enemy powers Germany was thrown into a state

of emergency. The prerequisite for the state of emergency within

international law is, according to the prevailing theory, an existing or

imminent threat of danger to the state, which it is impossible to avert

in any other way and which endangers to the utmost the vital interests

as well as the independence and existence of the state.

Thus, wherever the vital interests of a state are threatened in this

manner there prevails a state of national emergency; this has the legal

effect that such a state does not act illegally when committing a

violation of international law necessary for the repulsion of imminent

danger.

The economic situation of Germany became extremely precarious during the

course of World War II by the action of the enemy powers. All

connections with neutral countries were made impossible for Germany by

the total blockade, so that supplies of raw materials necessary for the

conduct of the war and of food for the feeding of the civilian

population were cut off.

Germany was therefore forced, in order to support her own economy which

would otherwise have collapsed, to use the stocks of raw materials and

food available in the occupied territories and all other items necessary

for the continuation of the war, for herself, the interests of the

population in the occupied territories being given due consideration. In

this, the principles established in the preamble to the Convention

concerning the Rules and Customs of Land Warfare, dated 18 October 1907,

as they result from the customs existing among civilized nations, from

the laws of humanity, and from the demands of public conscience, were

strictly observed. A renunciation of the right to use these resources in

the occupied territories would have meant the abandonment of the

independence and existence of the state; it would have meant

unconditional submission. An emergency involving submission during war

is the supreme and most fatal emergency in the life of a nation.

By referring to the state of emergency, however, only such actions are

covered which are necessary to remove a danger which could not be

averted otherwise. The limitations naturally fluctuate, and it is not

always easy to determine in individual cases whether a genuine state of

emergency exists. Here the Tribunal will have to consider in favor of

the defendant the special circumstances and the wartime conditions,

which are difficult to appreciate.

It has not been proved that the defendant intentionally or carelessly

infringed these limitations.

It must be left to the examination of the Tribunal whether the defendant

personally can be held responsible for a violation, possibly committed

intentionally or carelessly—a violation which has been committed

exclusively by him in his capacity as plenipotentiary of the Führer—or

whether in such a case there is only a liability of the state. The

Defense are of the opinion that in this case, too, the problem concerns

only a violation of international law which does not constitute personal

liability.

Exceptional conditions prevailed in the eastern theater of war because

there was no private economy in the East, but only a national economy

strictly regulated by a central office. The juridical situation here was

such that property of the enemy state could generally be claimed as war

loot. For the rest, a particularly careful regulation was made, which

was defined in the so-called “Green Folder.” The regulations contained

in this folder did not suggest any looting or annihilation of the

population, as asserted by the Prosecution. Its tenor was rather the

mobilization of economy and the rules for keeping it going, the seizure

and the orderly utilization of stocks and traffic installations in the

zones to be occupied in the course of fighting, taking into account the

fact that far-reaching destruction was to be expected owing to the

Russian attitude. The folder does not contain any order or indication

which might burden certain groups of the population beyond the needs of

war. This decree, for which the Defendant Göring has taken full

responsibility, does not furnish any reason for disapproval.

In all this one must not overlook one thing. This war was of such

bitterness, such proportions, such duration and totality as the creators

of the Hague Convention certainly never had or could have even remotely

imagined. It was a war in which nations fought for life or death. It was

a war in which all values had changed. Thus the defendant was quite

right when he declared, “After all, in a life-and-death struggle there

is no legality.”

From the standpoint of emergency, a justification can also be found for

the deportation of workers from occupied territories to Germany. In his

testimony the defendant stated in detail all the reasons which in his

opinion made this measure necessary. For the rest, the counsel for the

Defendant Sauckel, Dr. Servatius, will review these matters in detail.

Therefore, I do not need to concern myself with further considerations

in this respect.

The defendant has made a comprehensive statement in regard to the charge

of spoliation of art treasures, a statement which will be referred to in

order to justify his conduct. In addition it will be observed that Reich

Marshal Göring was not directly engaged in the safeguarding of art

treasures in Poland. Not one of these art treasures did he take for his

own collection. In this respect the defendant cannot be incriminated in

any way.

By order of the Führer such works of art in France as were owned by Jews

were temporarily confiscated for the benefit of the Reich. They were

considered as derelict property, because their owners had left the

country. Of these confiscated objects, with the express approval of the

Führer, Göring received a small part, though not for himself but for the

gallery he had planned, in which he also intended to incorporate the

works of art already in his possession. He wished to acquire these

objects at a price estimated by French art experts, the proceeds to be

distributed among the dependents of French war victims.

The juridical situation, therefore, was as follows:

The objects were confiscated by decree of the Führer for the benefit of

the German Reich. By this confiscation the former owners lost their

right to possession and it was transferred to the Reich. Such objects as

were ceded to him, Göring acquired from the Reich as their present

owner. The Reich obviously saw in this a step which, though it was

proved premature by the course of events, was intended to anticipate the

peace treaty to be concluded at the end of the hostilities, when the

final accounts would be made. This is similar to the confiscations and

seizures of property carried out at present in Germany in view of the

ultimate peace treaty.

Whether the Reich Government was juridically entitled to confiscate the

goods and to become their owner is a moot question. A solution of the

question is no longer necessary, because Göring acted in good faith in

the matter of this acquisition. In his testimony he emphasized his

belief that he was entitled to acquire these things, as they had been

previously confiscated by a Führer decree. In consideration of these

facts there cannot be any question of looting.

In any event there can be no objection to the purchasing of articles in

the course of normal business transactions, which the defendant was

offered spontaneously, the sellers being only too eager to dispose of

them in view of the good price they received. The same applies to

objects which the defendant acquired through a voluntary exchange, in

which the other party to the contract enjoyed the same rights as

himself.

I will now deal with the accusation of the shooting of 50 officers of

the British Air Force after their escape from the prisoner-of-war camp

Sagan.

The Indictment reads as follows: “In March 1944, 50 officers of the

R.A.F., who had escaped from Stalag Luft III in Sagan, were murdered

after their recapture.” According to a later declaration of the

Prosecution the circumstances were as follows: During the night of 24 to

25 March 1944, 76 officers of the R.A.F. escaped from the

prisoner-of-war camp Stalag Luft III in Sagan. 50 of these officers were

shot by the Security Service after they had been recaptured.

Investigation must bear on the following points: Who gave the order for

the shooting? Did Reich Marshal Göring play any part in this affair? Did

he actually take part in the drafting of the order to shoot these 50

airmen? Did he approve the measure, although it was a grave offense

against Paragraph 50 of the Geneva Protocol dealing with the treatment

of prisoners of war?

The Prosecution states that the Defendant Göring collaborated in the

drafting of this order. It referred, among other things, to the reports

which Generalmajor Westhoff and Criminal Counsellor Wielen drew up while

they were in British custody. But the interrogation of these witnesses

in Court, as well as the bringing forward of further evidence, which has

been so carefully gone into before the Tribunal, has shown in the

meantime that the previous statements of Westhoff and Wielen were

inaccurate, and in respect to Göring’s presence at the conference and

his knowledge of the shooting order were only based on suppositions

which had their roots in the fact that it was a question of a

prisoner-of-war camp for airmen. The result of the evidence was as

follows:

At this general conference on 25 March 1944 Himmler reported the escape

of the 76 officers to the Führer. For this Hitler severely reprimanded

Field Marshal Keitel. He considered the event a great danger to public

security, since the escaped officers might assist the 6 million

foreigners in Germany in the organization of an armed revolt. Then

Hitler gave the order: “The prisoners will remain with Himmler.” Keitel

definitely refused to hand over to Himmler the 15 officers who had

already been recaptured by the Armed Forces and returned to the camp,

and these officers remained unharmed.

At this general conference in the presence of Keitel, Hitler did not

order the shooting of the prisoners who were to remain in Himmler’s

hands. Neither Keitel nor Jodl expected such measures. Jodl expected the

escaped prisoners to be sent to a concentration camp for some time.

Keitel and Jodl agree in their testimonies that Reich Marshal Göring did

not attend this meeting. Therefore, it cannot possibly be correct that

Field Marshal Keitel declared in a conversation with General Westhoff

that he had been reprimanded by Göring at the general conference on

account of the prisoners’ escape.

General Koller has testified that General Korten assured him over the

telephone, about the end of March or beginning of April 1944, that the

Luftwaffe, that is, the Reich Marshal and Korten himself, were not

involved in the order and had only been informed of it later.

Furthermore Koller testifies that the Reich Marshal was extremely angry

about the shooting. These statements are completely in accordance with

the declarations of Reich Marshal Göring, who was on vacation at the

time of the conference with Hitler. The fact of the escape reached him

only through a telephone report by his adjutant. It was only after his

return from vacation, some time around Easter 1944, that he learned

through his Chief of General Staff, Korten, about the fact that

shootings of prisoners had taken place. Reich Marshal Göring was much

upset about this last report because he condemned the deed in itself

and, moreover, feared reprisals for his own airmen. Upon inquiry,

Himmler then confirmed the executions to Reich Marshal Göring with the

justification that an order to that effect had been issued to him by

Hitler.

It is made clear by this conversation how the execution was possible and

how its perpetration could remain concealed from the Wehrmacht. In the

absence of Keitel and Jodl, Hitler issued the order to Himmler to carry

out the execution and Himmler thereupon, unknown to the Wehrmacht,

immediately passed on the order to the Reich Security Main Office, that

is, after Kaltenbrunner’s approval, to Müller or, as the case may be, to

Nebe.

Not only did Reich Marshal Göring remonstrate with Himmler because he

had executed the order without informing Göring, but also raised the

most vigorous protest against this measure in a subsequent interview

with Hitler. This resulted in heated controversies between Göring and

Hitler.

As Göring strongly condemned such proceedings, he requested shortly

afterward that the prisoner-of-war camps be taken in charge by the OKW.

On being questioned Field Marshal Keitel confirmed, as a witness, that a

few weeks after the occurrence he received a letter from the General

Quartermaster of the Luftwaffe, in which the Luftwaffe requested the

taking over of its camps by the OKW.

This result of the examination of evidence, correcting the initial

statements of the witnesses Westhoff and Wielen, which are contradictory

in many respects, as well as Keitel’s earlier declaration of 10 November

1945, also justifies the assertion that Reich Marshal Göring was in no

way involved in this affair, that he condemned it most severely when he

was informed of it, and that he, therefore, cannot be called upon to

answer for this extremely regrettable and reprehensible order, which it

was not within his power to prevent.

The Prosecution has gone on to the question of “lynch law” as resorted

to by the German population in isolated cases in 1944 when enemy airmen

had been shot down. For these occurrences, the defendants, especially

Reich Marshal Göring, are held responsible. The charge that the

Defendant Göring or the Wehrmacht are in any way involved in this

action, that they issued orders or instructions to this effect or even

merely approved the action, is seen to be entirely unjustifiable. The

examination of evidence in this case has thoroughly cleared up the

matter in favor of the defendant.

To support their charges against Reich Marshal Göring, the Prosecution

invokes first of all a protocol of 19 May 1944 (Document L-166)

concerning the so-called “Hunting Conference” which was held on 15 and

16 May 1944 under the direction of the defendant.

Numbered as Item 20 of this memorandum is a statement by the defendant

saying he would suggest to the Führer that terrorist enemy airmen be

immediately shot at the scene of their offense. The defendant most

definitely denies having made any pronouncement to this effect and

justly points to the following circumstances which belie any such

statement: The session lasted for 2 days, and numerous technical and

organizational questions were discussed. The question touched upon in

Item 20 had nothing whatever to do with the agenda for the rest of the

session, least of all with the purpose of the session. The remark is

placed in the midst of themes which deal with matters of an entirely

different nature and has no point in this connection. Besides, Göring,

had he approved and wished it, could himself have immediately issued

such an order without further ado, as he knew the Führer’s attitude on

this point.

The decisive fact is that the statement is in the sharpest contradiction

with the fundamental attitude of the defendant. He always stood for the

view that the enemy airman who was shot down was a comrade and must be

treated as a comrade, a fact which I have already remarked upon in

another connection. Moreover, in the question as to how terrorist airmen

were to be treated, he defended his position with all frankness against

the conception held by Hitler and made no secret to Hitler of his

entirely different opinion.

In view of this unwavering attitude and its resulting policy, it is

utterly out of the question that he should suddenly have urged Hitler to

issue the above-mentioned order against the terrorist airmen—an order

which he opposed with all his might and the execution of which he sought

to prevent by every means as soon as it came to his knowledge. And he

did succeed in fact in preventing the execution of this order. If the

terrorist airmen were actually discussed at the conference, this

discussion could only have occurred with the implication that the Führer

suggested such a measure.

With reference to the minutes, the following general remarks must be

added: They consist of summary notes by a young officer, stretching over

a two-day session during which there had been a great deal of talking

and discussion. Experience acquired in many other cases has shown that

such recordings are often very unreliable and have even at times

reproduced the subject of the discussion in an utterly distorted form,

precisely because the person taking notes—especially when several

participants were present and talking at random—could not follow the

course of the discussion and consequently did not reproduce the

substance of it accurately, especially when, in addition to this, he was

mixing up the people; this explains many factual errors as well as the

inadequacy and unreliability of such records. The minutes were never

submitted to the defendant. He has not therefore been able to verify

their contents nor to correct their errors.

Records of this sort, which were taken down in the way described above

and which are not submitted for perusal and approval by the parties

concerned, are worthless in the production of evidence. They cannot in

themselves alone serve as an adequate means of proof either to charge or

convict the defendant. They can, therefore, only be made use of to the

detriment of the parties implicated when the content matter is confirmed

by other material brought for evidence from sources other than these

minutes. In the present case there is no confirmation from other

evidence that Göring actually made the statement contained in Item 20 or

made a request to Hitler to that effect.

The note dated 21 May (Document 731-PS) fails to provide support for the

claim. The note, “General Korten, according to a speech by the Reich

Marshal, reports...” cannot, in view of the defendant’s uncontested

statement, possibly mean that the Reich Marshal delivered an address on

this matter in Hitler’s quarters but solely that Korten reported on this

subject to the Reich Marshal and that Korten informed the Reich Marshal

of Hitler’s order.

The rest of the examination of evidence has made it clear beyond doubt

that Göring was against a special treatment of enemy terrorist airmen

who had been shot down and that he opposed Hitler’s order.

The witness Colonel Bernd von Brauchitsch pointed out during his

interrogation on 12 March 1946 that in the spring of 1944 there was a

sudden increase in losses among the civilian population through machine

gun attacks by enemy airmen. These attacks by enemy airmen were

directed, within Germany, against civilians working in the fields,

secondary railway lines without any military importance, and against

pedestrians and cyclists. This constituted a gross violation of the

Hague Rules of Land Warfare, according to which any combat act against

the noncombatant population of the country is prohibited; and any attack

or shelling of open cities, villages, residences, or buildings is

forbidden.

According to the opinion of the witness Von Brauchitsch, this behavior,

which quite evidently violated international law, caused Hitler to order

specific measures against these aviators, besides general defensive

measures. In this regard Hitler advocated, as far as it is known to the

witness, the most severe measures; lynch action was to have a free run.

This attitude of Hitler toward the violations of international law by

enemy aviators, however, did not meet with the approval of the Armed

Forces, especially not with that of Reich Marshal Göring and his Chief

of Staff, General Korten. Both of them did condemn to the utmost the

attacks of enemy aviators, which were exclusively directed against the

defenseless civilian population. However, they nevertheless opposed the

handing over of defenseless, shot-down aviators to the aroused mob for

lynch action; and they did not consider such measures to be an

appropriate means of combating this conduct, however much in violation

of international law.

The witness General Koller expressed himself to the same effect. Early

in June 1944 General Korten informed this witness of the fact that the

Führer intended to decree an order to the effect that terrorist aviators

were to be surrendered to public fury.

In the course of repeated conversations the witness Koller and General

Korten arrived at the opinion that the conception of the Führer must be

rejected. They certainly considered the direct attacks of low-flying

enemy planes on individual civilians, women and children, concentrations

of civilians, school classes and kindergartens out on walks, farmers at

work in the fields, as well as attacks on public passenger trains and

hospitals, to be ruthless. However, the two did not see a way out or a

solution of the difficult problem in the Führer’s order. They were of

the opinion that such an order was contrary to basic military

conceptions, the Articles of War, and international law, and that it

would give rise to numerous evils through which both enemy and German

crews would come to harm. And finally such an order might exercise, by

its effects, a harmful influence on the morale of German crews.

All these reasons caused the Armed Forces to reject Hitler’s demand, and

their attempts were now directed toward preventing the conception of

Hitler from being put into practice. The witness Von Brauchitsch

credibly states that the Armed Forces now looked for a way out finally

found in the fact that the higher command levels were deceived by

measures which were not actually carried out.

The witness Von Brauchitsch was ordered by Reich Marshal Göring to

define in discussions with the OKW the concept of terrorist aviators. In

the subsequent discussions and exchanges of correspondence those cases

were mentioned which represented violations of international law and

which were to be considered criminal acts. By this definition of the

concept, lynch law was to be prevented. The exchange of correspondence,

which lasted for quite a long period of time, showed the tendency of the

office to protract the matter as much as possible.

The witness Koller is justified in emphasizing that this exchange of

correspondence shows every sign of a “delaying action to gain time,”

that is, those concerned either did not want any decision or at least

wished to postpone it as long as possible.

In particular the marginal note on Document D-785, Exhibit GB-318, “No

answer to be obtained from Commander-in-Chief of the Air Force,” admits

of the conclusion that the Reich Marshal purposely wanted to prolong the

matter. Furthermore Reich Marshal Göring, as can be clearly seen from

the letter of 19 June 1944, maintained the opinion that in every

instance he considered legal procedure against terrorist aviators as

definitely necessary. Where it is stated in a subsequent document of 26

June 1944, “The Reich Marshal agrees with the formulation as

communicated defining the concept of terrorist aviators and with the

suggested procedure,” such agreement with the procedure refers

exclusively to the procedure of publication suggested in the final

paragraph of the letter of 15 June 1944, for which Reich Marshal

Göring’s approval had been requested. That Reich Marshal Göring until

the end of the war maintained the old aviator standpoint, according to

which enemy aviators, once they have been shot down, are to be

considered and treated as comrades, was not only expressly deposed by

the witness Field Marshal Milch, but is also emphasized by General

Koller in the following words:

“Notwithstanding occasional expressions of displeasure, the

attitude of the Reich Marshal always remained correct and

chivalrous in accordance with the flying tradition which he had

retained from the first World War and frequently emphasized. In

understandable anger about great difficulties in air defense,

and pressed by the Führer, he perhaps once in a while used

harsher words which were quickly forgotten.”—And the witness

does not know of any case—“in which such a fit of ill-humor

caused the Reich Marshal to take incorrect or harsh measures

against members of the enemy air forces.”

The behavior of the Air Force as a whole was also correct and humane at

all times. To fight chivalrously was a matter of honor with the German

aviators. The Air Force as well as the Defendant Göring retained this

point of view, although as Koller expressly mentioned, the flying

personnel felt extremely bitter over the strafing attacks on German

crews suspended on parachutes and individual hotheads spoke of equal

measures as reprisals.

The best testimonial for the exemplary comradely behavior of the Air

Force even toward an enemy who did not observe the rules of warfare can

be seen clearly from the description of the witness Koller about the

establishment of a maritime life-saving service of the Air Force, which

brought aid to Germans and enemies in equal measure and which carried on

despite enemy attacks in violation of international law.

It can thus be said that the Armed Forces and the Defendant Göring

rejected lynch law, as well as all procedure against the terrorist

aviators not in accordance with legal regulations, and did not issue any

orders to troops under their command; in no case have enemy aviators

been shot by the Air Force or by the Army, or handed over to the

Security Service (SD).

The Prosecution accuses the Defendant Göring of having established a

reign of terror in Prussia immediately after 30 January 1933 in his

capacity as Prussian Minister of the Interior and soon afterward as

Prussian Prime Minister, in order to suppress all opposition against the

Nazi program. In order to carry out his plans he had used the Prussian

police, which he had ordered as early as February 1933 to protect the

new government by proceeding ruthlessly against all political opponents

without consideration of the consequences. In order to safeguard and

consolidate power, he had created the dreaded Secret State Police and

established concentration camps as early as the spring of 1933.

To these accusations the following is to be said:

All this was only natural and cannot serve as an accusation against the

defendant; rather would it have been a severe violation of the duties

entrusted to him, if he had not devoted himself with all his strength to

the safeguarding of the new government and taken every imaginable

precaution in order to make any attack on this new government impossible

from the very beginning. In order to achieve this goal, the first step

concerned the police institutions.

It only remains to be examined whether the means which the defendant

considered it necessary to apply were objectionable. The question must

be answered in the negative because of the following considerations:

In every state the police is the inner-political instrument of power; in

every state its task is to support the government, to protect it in

every direction and to render the disturber of the peace and the

violator of the law harmless, if necessary, by force of arms. The

defendant assigned these tasks to the police under his direction, whom

he ordered, in the speech mentioned by the Prosecution, to act

energetically and to fulfill their duties conscientiously. Why such an

appeal for the performance of duty should not be permissible is

incomprehensible.

In his interrogation the Defendant Göring described expressly for what

reasons and along which lines he considered a reorganization of the

police necessary, and these directives cannot be objected to.

I should like to point out in this connection that according to the

prevailing rules of international law a sovereign state has a right to

regulate its internal affairs as it deems fit. The reform of the police

is an exclusively internal affair. The violation of generally recognized

rules of international law is, therefore, out of question in this

respect.

A political police was also in existence in Prussia before the

assumption of power. Before 30 January 1933 it was called Police

Department 1a, which among other things had to watch and to combat

political adversaries, at that time the National Socialists and

Communists in particular. Such a police, dealing with the same tasks,

was also needed after the assumption of power in order to protect the

new state against attacks which threatened it, in particular from the

very strong Communist Party.

In order to make clear that this department of the police was charged

exclusively with safeguarding the state against enemies of the state it

was named “Secret State Police.”

As long as the Defendant Göring was head of the Police—this was, in

fact, the case only until 1934, when Himmler was put in charge—he

strictly confined himself to the tasks prescribed to him and did not

transgress his authority, and no misuse of power worth mentioning

occurred. Nor has the evidence produced shown anything against the

Defendant Göring for this period of time. Should, at a later date, the

Secret State Police have transgressed their authority and committed

illegal acts, the defendant had no knowledge of it and did not approve

of it. For mistakes and crimes committed by his successors, which

remained unknown to him, he cannot be held responsible.