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diff --git a/75266-0.txt b/75266-0.txt new file mode 100644 index 0000000..efff943 --- /dev/null +++ b/75266-0.txt @@ -0,0 +1,24424 @@ + +*** START OF THE PROJECT GUTENBERG EBOOK 75266 *** + + + [Cover Illustration] + + + + + TRIAL + OF + THE MAJOR WAR CRIMINALS + + BEFORE + + THE INTERNATIONAL + MILITARY TRIBUNAL + + _NUREMBERG_ + 14 NOVEMBER 1945—1 OCTOBER 1946 + + + [Illustration] + + + _PUBLISHED AT NUREMBERG, GERMANY_ + _1948_ + + + + + This volume is published in accordance with the + direction of the International Military Tribunal by + the Secretariat of the Tribunal, under the jurisdiction + of the Allied Control Authority for Germany. + + + + + VOLUME XVIII + + + + _OFFICIAL TEXT_ + + _IN THE_ + + ENGLISH LANGUAGE + + + + _PROCEEDINGS_ + + 9 July 1946—18 July 1946 + + + + + CONTENTS + + + One Hundred and Seventy-fourth Day, Tuesday, 9 July 1946, + Morning Session 1 + Afternoon Session 48 + + One Hundred and Seventy-fifth Day, Wednesday, 10 July 1946, + Morning Session 89 + + One Hundred and Seventy-sixth Day, Thursday, 11 July 1946, + Morning Session 129 + Afternoon Session 164 + + One Hundred and Seventy-seventh Day, Friday, 12 July 1946, + Morning Session 193 + Afternoon Session 227 + + One Hundred and Seventy-eighth Day, Monday, 15 July 1946, + Morning Session 253 + Afternoon Session 287 + + One Hundred and Seventy-ninth Day, Tuesday, 16 July 1946, + Morning Session 325 + Afternoon Session 364 + + One Hundred and Eightieth Day, Wednesday, 17 July 1946, + Morning Session 403 + + One Hundred and Eighty-first Day, Thursday, 18 July 1946, + Morning Session 442 + Afternoon Session 468 + + + + + Editor’s Note: _In respect to the presentation of the final + pleas by Counsel for the Defense, the Tribunal in several + instances directed that written speeches of excessive length be + shortened for oral presentation in Court and that notice would + be taken by the Tribunal of the paragraphs omitted. In the + sessions to follow such passages have been reproduced in small + type._ + + + + + ONE HUNDRED + AND SEVENTY-FOURTH DAY + Tuesday, 9 July 1946 + + + _Morning Session_ + +MARSHAL (Lieutenant Colonel James R. Gifford): May it please the +Tribunal, the Defendants Hess and Fritzsche are absent. + +THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): I have an order to +read. The Tribunal orders: + + 1. Applications for witnesses for organizations to be heard by + the Tribunal in open court in accordance with Paragraph 5 of the + Tribunal’s order of 13 March 1946 should be made to the General + Secretary as soon as possible, and in any case not later than 20 + July. + + 2. The Tribunal believes that so much evidence has already been + taken, and so wide a field has been covered, that only a very + few witnesses need be called for each organization. That is all. + +DR. OTTO NELTE (Counsel for Defendant Keitel): Mr. President, Gentlemen +of the Tribunal, yesterday I dealt with the problem of Keitel and the +Russian campaign. Now I recall to you what Keitel said in the witness +box concerning the so-called ideological orders: + + “I knew their content. In spite of my personal misgivings I + passed them on without letting myself be deterred by the + possibility of serious consequences.” + +I wanted to point that out in order to make what I have to say now +comprehensible, above all, in its extent. In the course of time the +opinion arose and was disseminated throughout the Army, that Field +Marshal Keitel was a “yes man,” a tool of Hitler’s and that he was +betraying the interests of the Armed Forces. These generals did not see, +nor were they interested in the fact that this man was fighting a +constant battle, day after day, in every possible field, with Hitler and +the forces which were influencing him on all sides. The effects of this +distorted picture shown here in detail, which definitely did not apply +to Keitel, especially not in the sphere of strategic operations, +planning, and execution, made themselves still felt even in this Trial; +perhaps not without the fault of the Defendant Keitel himself. As to the +justification of his conception of duty there can in principle be no +argument. It has also been confirmed here by the witness Admiral +Schulte-Mönting for the Defendant Grossadmiral Raeder. There can be no +doubt that the rest of the admirals and generals were in principle of +the same point of view, that it is impossible in military spheres to +criticize before subordinates the decision of a superior as expressed in +an order, even if one has misgivings about the order. + +One may say that every principle, every basic rule must be interpreted +and applied in a reasonable way, that every exaggeration of a good +principle detracts from it. In the case of Keitel this objection affects +the problem of his responsibility and guilt. + +Does nonrecognition of the point where a principle, correct in itself, +is being carried to excess and thus endangers the object for the +protection of which it has been established, constitute guilt? In the +case of Keitel we must consider this crucial question from the point of +view of a soldier. The thoughts and ideas which the Defendant Keitel had +in this connection were the following: + +It is incontestable that the principle of obedience is necessary for +every army; one might say that obedience—in civilian life a virtue and +therefore more or less unstable in its application—must be the +essential element of a soldier’s character, because without this +principle of obedience the aim which is to be accomplished by the army +could not be achieved. This aim—the security of the country, the +protection of the people, the maintenance of the most precious national +possessions—is so sacred that the importance of the principle of +obedience cannot be valued highly enough. Hence, the duty of those +called upon to preserve that national institution, the Armed Forces, in +the sense of its higher task, is to emphasize the importance of +obedience. But what the general demands of the soldier, because it is +indispensable, must hold good for himself too. This also applies to the +principle of obedience. + +It would be dangerous to weaken an order, still less an essential +principle, by mentioning exaggerations and taking them into +consideration at the outset. That would leave the principle of decision +to the individual, that is, to his judgment. There may be cases where +the decision depends, or must be made dependent, on actual +circumstances. In theory, that would lead to a devaluation or even to an +abrogation of the principle. In order to forestall this danger and to +eliminate any doubt as to its absolute importance, the principle of +obedience has been changed in military life into one of “absolute +obedience,” and embodied in the oath of allegiance. This is equally +valid for the general as for the common soldier. + +The Defendant Keitel not only grew up in this school of thought, but +during the 37 years of his military service, up to 1938, including the +first World War, he had become convinced that this principle of +obedience is the strongest pillar upon which the Armed Forces, and +thereby the security of the country, rests. + +Deeply imbued with the importance of his profession, he had served the +Kaiser, Ebert, and Von Hindenburg in accordance with this principle. As +representatives of the State, they had to a certain extent an impersonal +and symbolic effect on Keitel; Hitler, from 1934, at first appeared in +the same light to him, that is, merely as representing the State, +without any personal connection, in spite of the fact that his name was +mentioned in the oath of allegiance. In 1938 Keitel as Chief of the OKW +came into the immediate circle and the personal sphere of Hitler. It +appears important for further explanation and in assessing the +personality of Keitel to bear in mind that Keitel, as the result of his +highly-developed soldierly conception of duty described above, and the +pronounced feeling of soldierly obedience, was now exposed to the direct +effects of Hitler’s personality. + +I am inclined to assume that Hitler had clearly realized, in the +preliminary discussions with Keitel which led to the Führer Order of 4 +February 1938, that Keitel was the type of person he was including in +his calculations: A man upon whom he could rely as a soldier at any +time; who was devoted to him with sincere soldierly loyalty; whose +bearing fitted him to be a worthy representative for the Armed Forces in +his sphere; and who in the opinion of his superiors was an +extraordinarily able organizer as shown by the report of Field Marshal +Von Blomberg. Keitel himself has admitted that he sincerely admired +Hitler, and that the latter subsequently attained a strong influence +over him and brought him completely under his spell. + +This must be borne in mind if we wish to understand how Keitel could +have made out and transmitted orders from Hitler which were +irreconcilable with the traditional conceptions of a German officer, +such as, for instance, orders C-50, 447-PS, et cetera, submitted by the +Soviet Russian Prosecution. + +By exploiting the willingness to fight for Germany, which might be taken +for granted in the case of every German general, Hitler was able to +camouflage his party political aims with the pretext of defending the +national interests and to present the impending struggle with the Soviet +Union as a dispute which must inevitably be settled—even as a war of +defense, the necessity for which was made clear by definite information +which had been received and on which depended the existence of Germany. + +In this way Hitler broached the fateful question. General Jodl has +testified here to the fact that, as an officer of long standing, +Keitel’s conscience pricked him nevertheless; and that he repeatedly, +but unsuccessfully, raised objections and suggested alternatives to the +orders drafted. + +During his cross-examination by the representative of the American +Prosecution, the Defendant Keitel has openly declared that he was aware +of the illegal nature of these orders, but that he believed that he +could not refuse to obey the orders of the Supreme Commander of the +Armed Forces and head of the State, whose final pronouncement in the +case of all objections was: “I do not know why you are worrying; after +all, it is not your responsibility. I myself am solely responsible to +the German people.” + +This is a reasoned analysis of Keitel’s attitude toward the so-called +ideologically-based orders of Hitler. + +Keitel’s last hope, which in many cases proved to be justified, was that +the commanders-in-chief and subordinate commanders of the Armed Forces +would at their discretion and within the scope of their responsibility +either fail altogether to apply these harsh, inhuman orders, or would +apply them only to a limited degree. In view of his position, Keitel had +only the choice between military disobedience by refusing to transmit +the orders, or complying with the instructions to forward them. I shall +investigate in another connection the question of what alternative cases +of action might have been open to him. The problem here is to show how +Keitel came to forward orders which indisputably violated the laws of +warfare and humanity and why, by reason of his duty to obey, his sworn +loyalty to the Supreme Commander, and the fact that he saw in the order +of the head of the State the absolution of his own responsibility, he +failed to recognize the point at which even the soldier’s strict duty of +obedience must end. + +Every soldier who has appeared here as a defendant or as a witness has +mentioned the duty of allegiance. All of them, when they sooner or later +realized that Hitler had drawn them and the Armed Forces into his +egocentric gamble for the highest stakes, have considered their oath of +allegiance as rendered to their country and have believed that they must +continue to do their duty in circumstances which to us and even to +themselves, when they realized the extent of resulting disaster, appear +inconceivable. Not only soldiers such as Raeder, Dönitz, and Jodl, but +Paulus as well, kept their positions and remained at their posts, and we +have heard the same from other defendants. The statements of the +Defendants Speer and Jodl in this connection were deeply moving. + +The question of whether these facts relieve the Defendant Keitel of +guilty responsibility requires investigation. Keitel does not deny that +he bears a heavy moral responsibility. He realizes that no one who +played even the smallest part in this terrible drama can feel himself +devoid of the moral guilt in which he was entangled. + +If I nevertheless emphasize the legal point of view, I am doing so +because Justice Jackson, in his speech on behalf of the Prosecution, +expressly referred to the law as being the basis of your verdict—to +international law, the law of individual states, and the law which the +victorious powers have embodied in the Charter. + +I assume that the Defendant Keitel has recognized that some of Hitler’s +orders violated international law. The Charter says that a soldier +cannot clear himself by referring to orders given by his superiors or by +his government. At the beginning of my argument I asked you to determine +whether, independently of the terms of the Charter, the principle is +unimpeachable that the standard determining right or wrong cannot but +depend on a national concept. + +THE PRESIDENT: Dr. Nelte, I see that in the next few pages you pass into +the realm of metaphysics. Don’t you think that part you might leave for +the Tribunal to read? + +You must remember that you began your speech yesterday before the +morning adjournment, and you have got over seventy pages left of your +speech to read. + +DR. NELTE: I have limited it and shall be through by noon. + +THE PRESIDENT: Very well. Do you think it is necessary to read these +passages about metaphysics? + +DR. NELTE: I want to show in these pages that they are not metaphysical +forces, and that the individual is not in a position to free himself +through metaphysical forces. I shall—well, I think I shall continue on +Page 121, immediately following my reference to Hitler’s character. + +Perhaps I may just read from Page 120 at the bottom. + +THE PRESIDENT: Very well, if you tell the Tribunal that you have limited +your presentation. I think you began yesterday at a quarter past 12. Go +on then. Take your own course, but do your best to limit it, and go to +Page 120 now. + +[sm type begins]DR. NELTE: The French prosecutor, M. De Menthon, has +pointed to the “demoniacal” undertaking of Hitler and therewith +pronounced a word which had necessarily to be brought up in a discussion +which is dedicated to the investigation of events forming the background +of these Trials. It is the natural endeavor of intelligent people to +analyze the reasons for events which have deeply touched the fate of +mankind in these days. If these events deviate from the regular +happenings and the natural course of things so much that they sharpen +our imagination, we take our refuge in metaphysical powers. I ask you +not to consider the pointing to such metaphysical forces as an attempt +to evade responsibility. We are all still under the impression of the +attempt by a single man to lead the world from its course. I should not +care to be misunderstood: The “demoniacal” is an incomprehensible yet +extremely real power. Many call it “fate.” If I speak of fateful, +metaphysical powers, I do not mean the fate of antiquity and of +pre-Christian Germanism to which even the gods are necessarily +subject.[sm type ends] + +[sm type begins]I should like to make this quite clear: The demoniacal +about which I am talking in this connection does not exclude the +capacity of man to discern evil; of course, I believe that the +demoniacal, should it become effective, does limit the capacity for +perception. Principiis obsta. The old German maxim says: “Resist from +the very start, the remedy will be prepared too late.”[sm type ends] + +[sm type begins]Fate and guilt are not phenomena excluding one another, +but rather circles which overlap, so that there are sections of life +when both power groups are operative. I can only indicate here in a few +words what things may be considered as being governed by fate: +nationality, historical and traditional conditions of existence, +individual origin, professional surroundings.[sm type ends] + +[sm type begins]Mankind today cannot yet recognize the difference +between the fateful, that is, the metaphysical powers which have become +operative, and the persons who have appeared as tools of these powers; +therefore the people who made their appearance as actors on the stage of +this terrible drama are “guilty people” to them. The further removed +mankind is from the events, the less it sees or feels the consequences, +the more objective does judgment—divested of actuality and subjective +instincts—become within the framework of the history of human +development. In this way the active figures and their share in the +events will be better recognized. But as long as we are under the recent +impression of the events, we do, it is true, realize the border line +between guilt and fate, but we cannot yet recognize it clearly.[sm type +ends] + +[sm type begins]No less a person than Marshal Stalin has pointed out in +February 1946 that the second World War was not so much the result of +mistakes of individual statesmen, but rather the consequence of a +development of economic and political tension on the basis of the +existing capitalist economic system.[sm type ends] + +I am now beginning Paragraph 3 on Page 120. + +Hitler was the exponent of an idea. He was not only the representative +of a Party political program, but also of a philosophy which separated +him and the German people from the ideology of the rest of the world. As +a convinced enemy of parliamentary democracy, and obsessed with the +conviction that this was the true ideology, he was devoid of tolerance +and the spirit of compromise. This produced an egocentric ideology which +recognized as right only his own ideas and his own decisions. It led to +the “Führer State,” in which he was enthroned on a lonely height as the +incarnation of this faith, blind and deaf to all misgivings and +objections, suspicious of all those who he thought might constitute a +threat to his power, and brutal to everything that crossed his +ideological path. + +This outline of his character, which has been verified by the evidence, +is incompatible with the Prosecution’s assumption that a partnership of +interests might have existed between Hitler and the defendant. There was +no partnership of interests and no common planning between Hitler and +the men who were supposed to be his advisers. The hierarchy of the +Führer State, in connection with the Führer Order Number 1, which gives +the crudest expression to the separation of work, can only admit of the +conclusion that the so-called co-workers were merely mouthpieces or +tools of an overwhelming will, and not men who translated their own will +into deeds. The only question, therefore, which can be raised is whether +these men were guilty in putting themselves at the disposal of such a +system and in submitting to the will of a man like Hitler. + +This problem requires special examination in the case of soldiers, +because this submission to the will of some person, which is contrary to +the nature of a free man, is for the soldier the basic element of his +profession, and of the duties of obedience and allegiance which exist +for the soldier in all political systems. + +The legal problem of conspiracy in the sense of the Indictment has been +dealt with by my colleague Dr. Stahmer and by Dr. Horn. In the specific +case of the Defendant Keitel I should only like to refer to two +sentences of the speech as the starting point of my statements: + + (1) “It is not sufficient that the plan be common to them all; + they must know that it is common to all of them, and each one of + them must of his own accord accept the plan as his own. + + (2) “That is why a conspiracy with a dictator at the head is a + contradiction in itself. The dictator does not enter into a + conspiracy with his followers; he concludes no agreement with + them; he dictates.” + +Dr. Stahmer has pointed out that no one acting under or on account of +pressure can therefore be a conspirator. I should like to modify this +for the circle to which the Defendant Keitel belonged. To say that the +defendants belonging to the military branch acted on account of or under +pressure, does not accurately represent the real circumstances. It is +correct to say that soldiers do not act voluntarily, that is, of their +own free will. They must do what they are ordered, regardless of whether +or not they approve of it. Accordingly, when soldiers engage in any +action, their will is disregarded, or at least not taken into +consideration; it will in fact always be disregarded because of the +nature of the military profession, and in applying the Leadership +Principle in the Armed Forces it cannot appear as a causal factor in the +initiation and execution of orders. In this military sphere, therefore, +we are not dealing with an abstract and thus theoretical deduction, but +with a conclusion which is bound to result from the nature and practice +of the military profession, when we maintain that the function of the +Defendant Keitel was based on military orders. The activity of the +Defendant Keitel with regard to the initiation of orders, decrees, and +other measures by Hitler, even insofar as they are criminal, cannot +therefore be considered as common work, that is, as the result of a +common plan within the meaning of the term “conspiracy.” Keitel’s +activity in regard to the execution of orders consists in the proper +transmission of orders in the operations sector and in the proper +execution of orders concerning the administration of the war, that is, +in the so-called ministerial sector. + +No matter how this activity in itself might be qualified in terms of the +penal code, the Prosecution have not, I think, so far submitted anything +which could refute this train of thought as to the conspiracy. + +This is a soldierly principle, and is valid wherever the military +command system exists. The significance of this statement is +particularly important in the case of the Defendant Keitel. For the +validity of such evidence might be questioned by saying that Keitel’s +functions were not those of a soldier, or at least not only those of a +soldier; and that he is therefore not entitled to claim consideration +purely on the grounds of the existing system of command. The unfortunate +nature of his position and the many and varied assignments, not all of +which can be fitted into the framework of a system, which fell to him as +Chief of the OKW, tend to obscure for us the primary factor with regard +to the Defendant Keitel, namely, that no matter what Keitel did, or with +what authority or organization he negotiated or was in contact, he was +always motivated by his function as a soldier and by some general or +particular order issued by Hitler. + +The existence of a conspiracy seems to me incompatible with the theory +of a soldier’s functions and with Keitel’s position as head of the OKW, +and cannot logically be derived therefrom. In all cases in which the +Prosecution has claimed conspiracy to be prejudice, the purpose of this +conspiracy is an activity indulged in by the members in perpetrating +acts which differ from their normal private activity. The _ex contrario_ +proposition is that the activity which a man must practice because it +belongs to his profession or office cannot be termed a conspiracy. It +may be added that the soldier does not act on his own initiative, but on +orders received. A soldier may therefore take part in a conspiracy aimed +against the duties he has undertaken as a soldier; but his activity +within the scope of his military functions can on no account be termed a +conspiracy. + +The OKW, including the Armed Forces Operations Staff, was relatively +little affected by the conduct of the war in the East. By the OKW I mean +the staff of the OKW. It is well known that Hitler himself as Supreme +Commander of the Armed Forces, dealt with all matters concerning the +conduct of this—his own—ideological war and took a hand in it. The +Army was in command; but Hitler was in close and constant collaboration +with the Commander-in-Chief of the Army and his Chief of General Staff +up to December 1941 when, after taking over the supreme command of the +Army, he also took over its direct leadership. + +This union in one person of the Supreme Commander of the Armed Forces +and Commander-in-Chief of the Army was evidently the cause of the +numerous mistakes which led to the severe incrimination of the OKW as +staff OKW, and of its Chief of Staff, Keitel. + +Keitel feels himself to be gravely incriminated by the frank statements +he made in the witness box on the whole question of the Russian war. It +is, therefore, not only an understandable proceeding on the part of the +defense, but in fact its duty, to clarify the extent to which Keitel +bears the responsibility for these entire conditions of most frightful +atrocity and unimaginable degeneration. + +To make these matters of competency, which are frequently extremely +complicated, easier of understanding, I refer to the Defendant Keitel’s +affidavit Number K-10, which was submitted to the Tribunal. It seems to +me essential just to emphasize the fact that the war against the Soviet +Union was from the first subject to three effective factors: (1) +Operations and command: High Command of the Army; (2) Economics: The +Four Year Plan; (3) Ideological: The SS Organizations. + +These three factors were outside the competency of the OKW, which was +not empowered to issue orders affecting them. It is true, nevertheless, +that as a result of Hitler’s practically anarchic methods, by which he +himself retained entire control of the Government in his own hands, the +OKW and Keitel were sometimes used to transmit Hitler’s orders; but this +fact cannot in itself deflect the basic responsibility. + +In view of the mass of material presented by the Soviet Prosecution, I +can refer within the scope of my statement to only a comparatively small +number of the documents. I shall give a brief summary of the documents +which have been dealt with separately, Pages 126 to 136. + +To begin with, I referred to Documents USSR-90, 386, 364, 366, 106, and +407, and tried to prove in detail that the charges made against the OKW +and Keitel as the guilty parties have no value as evidence as far as +these documents are concerned. + +Then, on Page 130, I referred to a category of documents with which I +have dealt earlier in Part 2 of my presentation on the subject of +official documents. If I refer in this connection to the official +reports of the Investigation Commission, I do so not because of their +actual contents, but because, although they were submitted in order to +implicate Keitel, they are in themselves proof that the charges made +against Keitel and the OKW are not justified as far as these grave +indictments are concerned. + +Out of the large number of documents in this connection I have dealt +with USSR-40, 35, and 38. These official reports, which implicate the +High Command of the Armed Forces, do not contain a single concrete fact +referring to the Staff of the OKW—that is, Keitel—as the perpetrator +or instigator of these atrocities. + +I make no comment on the contents of the documents; I merely point out +that Keitel in his official position, had neither the authority nor the +opportunity to give orders which resulted in the crimes alleged. + +[sm type begins]First of all I shall deal with the Documents USSR-90, +386, 364, 366, 106, 407, submitted by the Prosecution for the specific +purpose of establishing Keitel’s responsibility.[sm type ends] + +[sm type begins]They will show that not in a single case are they +orders, decrees, or regulations issued by the German High Command of the +Armed Forces and that it has not been proved that the latter was even +informed thereof.[sm type ends] + +[sm type begins](1) The document Exhibit USSR-90 is a court-martial +sentence against the German Generals Bernhardt and Hamann, and includes +the following sentence:[sm type ends] + + [sm type begins]“During the temporary occupation of the Orlova + area ... German Fascist intruders committed bestial crimes in + huge numbers against the peaceful populations and prisoners of + war on direct orders of the rapacious Hitler Government and the + command of the Armed Forces, thus violating the rules of warfare + established by international law....”[sm type ends] + +[sm type begins]The argumentation leading up to the verdict does not +reveal proof of the claim that the “German Armed Forces command”—if +this means the OKW and the Defendant Keitel—ordered the crimes with +which the court-martial verdict is dealing. This is another of the +frequent confusions as to the status of the High Command of the Army and +the High Command of the Armed Forces. Statements on Page 2 of the +verdict seem to indicate this; it is said there:[sm type ends] + + [sm type begins]“The defendant, Lieutenant General Bernhardt ... + acted according to plans and instructions of the + Commander-in-Chief of the Army ...”[sm type ends] + +[sm type begins]This document, therefore, cannot furnish proof for the +Prosecution’s contention that the Defendant Keitel is connected with the +crime which is described in Document USSR-90.[sm type ends] + +[sm type begins](2) In connection with the facts in the case dealing +with “compulsory labor,” the Prosecution submitted in proof of its +charge against Keitel Document USSR-36, a letter by Reich Marshal +Göring, in whom Hitler had vested general powers within the framework of +the Four Year Plan for this essential project—Plan +Barbarossa-Oldenburg—as shown in the Green File.[sm type ends] + +[sm type begins](3) Nor does the report or discussion of the Economic +Staff East (Wirtschaftsstab Ost) of 7 November 1941 (USSR-386) touch +upon the competency and responsibility of OKW, because the Economic +Staff East had nothing to do with the OKW and the Defendant Keitel.[sm +type ends] + +[sm type begins]This is also proved by the Green File, the Thomas +Document 2353-PS, and Keitel’s affidavit, Keitel Document Book 2, +Exhibit Number Keitel-11.[sm type ends] + +[sm type begins]The conclusion drawn by the Soviet Russian Prosecution +that “Proof is established of the OKW commander having been primarily +responsible for the mobilization of labor in the Reich” is erroneous, if +the argument is to establish responsibility on the part of the Defendant +Keitel. If, on the other hand, reference as commander of the OKW is made +to Hitler, this cannot be contradicted.[sm type ends] + +[sm type begins](4) Document USSR-364 is a document from the OKH (High +Command of the Army), signed by the Quartermaster General of the Army, +Wagner. It can be seen from the distribution of the document that the +OKW was not even informed through the usual channels.[sm type ends] + +[sm type begins](5) Document USSR-366 mentions the name of the defendant +as having complained because: “OT (Organization Todt) units operating in +the vicinity of Lvov paid local laborers a daily wage of 25 rubles and +because OT availed itself of the services of local factories.”[sm type +ends] + +[sm type begins]The Prosecution’s argument runs that “Keitel writes to +Minister Todt ...” The document which was submitted does not reveal +this, because it does not make any mention of such a letter. Inasmuch as +the entire economic administration and the exploitation of the Eastern +Territories had been transferred to the Four Year Plan, OKW had no +relevant office for this problem.[sm type ends] + +[sm type begins]This becomes evident from the Green File just referred +to, and from the Führer order for the “Barbarossa-Oldenburg Plan.” +Presumably, after discussion of the basic question during the conference +on the situation, Keitel once again received orders from Hitler to get +into touch with Reich Minister Todt. This would then be one of the +instances where the defendant merely served as an instrument for the +transmission of a Hitler order to the competent office without the +matter being in any way within the competency of the OKW. In any case, +the information conveyed by the document does not show in how far this +problem should be a charge on Keitel.[sm type ends] + +[sm type begins](6) Document USSR-106 is a Führer Order of 8 September +1942, dealing with the employment of prisoners of war and the +construction of field fortifications behind the front. The heading of +the Führer order reads:[sm type ends] + +[sm type begins]“The Führer.[sm type ends] + +[sm type begins]“OKH: General Staff of the Army Operations Section +1.”[sm type ends] + +[sm type begins]The order was sighed by the Army General Staff and +issued by Halder. This proves conclusively that the Defendant Keitel or +the OKW was not involved.[sm type ends] + +[sm type begins](7) Nor is it possible to refer to Document USSR-407 for +the establishment of the defendant’s participation. This document deals +with the order given by a local commander, who refers to alleged OKW +instructions.[sm type ends] + +[sm type begins]It has already been emphasized on several occasions that +the OKW does not mean Keitel. It may however be quite possible, as no +date of the alleged OKW order is mentioned in Document USSR-407, that +this is one of the numerous cases of confusion, especially since even in +Armed Forces circles the exact conception of the OKW was not known.[sm +type ends] + +[sm type begins]In any case the conclusion by the Soviet Russian +Prosecution, after submission of this document, that “OKW and Keitel +have not only ordered the mobilization of labor from the occupied part +of Russia, but have worked directly in the execution of this order” is +incorrect and has not been proved.[sm type ends] + +[sm type begins]Now there is still a category of documentary evidence +which contains official communiqués of the Extraordinary Commission for +the determination and investigation of War Crimes and Crimes against +Humanity. I already some time ago dealt with the importance of official +documents in the presentation of evidence, and pointed out their limited +value as evidence.[sm type ends] + +[sm type begins]If in this connection I discuss the official reports of +the investigating commissions, then I do so because ostensibly they have +been presented in order to incriminate Keitel, while in actual fact they +furnish proof that the accusations against Keitel and the OKW Staff are +not based on any reasoning in these very weighty Prosecution charges.[sm +type ends] + +[sm type begins]From the large number of documents concerning this I +would refer to the following:[sm type ends] + +[sm type begins]Document USSR-4 has been submitted to show that the +Soviet-Russian population was exterminated through intentional infection +with typhus, and that this was a case of a planned spreading of +typhus-epidemics among the Soviet population. For this the following, +among others, are named as the culprits (Page 10 of the document); “The +Hitler Government and the Supreme Command of the Armed Forces.”[sm type +ends] + +[sm type begins]Once again it cannot be seen from the document itself on +what concrete facts the commission supports the guilt of the “Supreme +Command of the German Armed Forces” and what military agency is thereby +described. There is no mention made of an order of the “Supreme Command +of the German Armed Forces” in any part of this lengthy document. +However, since the Prosecution have presented this document as proof of +the guilt of the Defendant Keitel and the OKW, I establish that this +document cannot be valid as evidence for an accusation against Keitel in +this horrible charge.[sm type ends] + +[sm type begins]Document USSR-9 bears the heading:[sm type ends] + + [sm type begins]“Report of the Extraordinary State Commission + for the determination and investigation of the atrocities of the + Fascist German invaders and the damage caused to citizens, + collective enterprises, social organizations, State plants and + institutions of the Soviet Union.[sm type ends] + + [sm type begins]“Regarding the demolitions and bestialities + which the German Fascist invaders have committed in Kiev.”[sm + type ends] + +[sm type begins]On Page 4 it is stated: By order of the German High +Command German Army units looted, blew up, and destroyed the old +cultural monument, the Lavra of Kiev. The following are described as +responsible: “The German Government and the German High Command and all +officers and officials listed by name.” From the speech of the +representative of the Prosecution and from the term, “the German +Government and the German High Command” it can be seen that the High +Command of the Armed Forces and Keitel are to be accused as having been +responsible. This document lacks any positive statement on which the +Investigating Commission supports this judgment.[sm type ends] + +[sm type begins]It is also shown here that the judgment of the +investigating commission—in any case with reference to the Defendant +Keitel—is not basically supported.[sm type ends] + +[sm type begins]Document USSR-35 is a report “regarding the material +damage which the Fascist German invaders inflicted on State plants and +institutions, collective industries, and citizens of the Soviet +Union.”[sm type ends] + +[sm type begins]This document states:[sm type ends] + + [sm type begins]“The German armies and occupation authorities + which carried out the directives of the criminal Hitler + Government and the High Command of the Armed Forces, destroyed + and looted the Soviet cities occupied by them....”[sm type ends] + +[sm type begins]To this it must be stated:[sm type ends] + +[sm type begins](1) The contents of this document do not show one single +concrete “directive” issued by the OKW or Keitel.[sm type ends] + +[sm type begins](2) The OKW had no authority to give orders, and +therefore could not issue directives.[sm type ends] + +[sm type begins](3) Therefore the findings of the State investigation +commission, which for formal reasons would not be binding for the +Tribunal, cannot be considered as justified insofar as the OKW and +Keitel are concerned.[sm type ends] + +[sm type begins](4) No opinion is going to be expressed as to the +remaining contents of the reports.[sm type ends] + +[sm type begins]Document USSR-38 is entitled:[sm type ends] + + [sm type begins]“Communication of the Extraordinary State + Commission for the Determination and Investigation of the + Atrocities of the Fascist German invaders and their Accomplices. + Regarding atrocities of the Fascist German invaders in the city + of Minsk.”[sm type ends] + +[sm type begins]In this document it is stated on Page 1:[sm type ends] + + [sm type begins]“Following instructions, which were issued + directly by the German Government, the Hitlerite military + authorities destroyed without any limitation scientific research + institutes, et cetera ... they exterminated thousands of + peace-loving Soviet citizens and also prisoners of war.”[sm type + ends] + +[sm type begins]Page 13 states:[sm type ends] + + [sm type begins]“Responsible for the crimes committed by the + Germans at Minsk ... are the Hitler Government and the High + Command of the Armed Forces.”[sm type ends] + +[sm type begins]Nowhere in this document have either concrete or +verifiable instructions or orders by the Defendant Keitel or from the +OKW been given.[sm type ends] + +Then, on Page 134, Paragraph 1: + +In the documents previously quoted, either Keitel or the OKW is named as +the responsible party. However, during the Prosecution’s presentation +many such official reports were quoted as evidence for Keitel’s guilt, +which do not even mention either the name of the defendant or the OKW. +In this connection, I draw your attention to Documents USSR-8, 39, 45, +46, and 63. I only ask the Tribunal to examine the remaining documents +with equal care in order to ascertain whether, if submitted in +connection with Keitel and the OKW, they allow Keitel’s guilt to be +concluded or whether that is not the case. In this connection I should +like to add that I am not going to read, and am not referring to, the +remarks at the bottom of Page 134 (USSR-3). + +I beg the Tribunal to take note of my statements on the economic +exploitation of the occupied territories—Pages 137 to 142—without my +reading them. Since Reich Marshal Göring’s defense counsel has already +dealt with this problem and has clarified the spheres of competency and +responsibility, it would mainly be repetition for me to speak on it. +However, I wish to draw attention to this part of my presentation and +beg the Tribunal to take judicial notice of it. + +[sm type begins]In the war against Poland as well as later in the West, +extended on the basis of experiences in Poland, expert personnel trained +in military economy were detached from the Armed Forces Economic Office +in the form of small staffs and units to the Army Groups and Army High +Commands as expert advisers and assistants in all military economic +questions which resulted from the conquest and occupation of +economically and industrially valuable territories. The Economic +Armament Office, together with the OKW, prepared the organization of +these groups of experts and technical detachments.[sm type ends] + +[sm type begins]By and large, they consisted of: (a) Expert advisers +with the unit staffs (at first known as liaison officers of the OKH +Economic Armament Office); (b) Reconnaissance Staffs for factories and +raw materials important to war economy: (c) technical detachments and +formations for security, repairs, and protection from destruction of +essential and vital plants and supply installations.[sm type ends] + +[sm type begins]This organization was prepared by the OKW (Economic +Armament Office) because it relied on expert research personnel from all +three branches of the Armed Forces and civilian economy with the +“technical emergency aid” (Technische Nothilfe). The Army completed the +set-up itself.[sm type ends] + +[sm type begins]The organization was subordinated to the senior troop +commanders in charge. Their employment took place exclusively on the +orders of the troop command, for which each adviser submitted +suggestions from time to time to the unit staffs (the General Staff Ib +or the Chief Quartermaster).[sm type ends] + +[sm type begins]The missions of these technical detachments were: (a) +Advising the command concerning the importance and significance of +industrial plants and supply installations (fuel, water, electric +current, repair plants, mines, et cetera); (b) Protection of these +installations from destruction by the enemy and our own forces and the +civilian population; (c) Utilization for the purpose of Germany’s +conduct of the war for troops and population; (d) Examination of +essential and vital plants and establishment of their productive +capacity for German use; (e) Establishment of raw material supplies of +metals, ore, coal, fuel, et cetera, for reindustrialization or Germany’s +conduct of the war.[sm type ends] + +[sm type begins]All functions, with the exception of those mentioned +under (d) and (e), served exclusively to supply the fighting troops, the +occupational troops, and the native population. The statistical +collections (d) and (e) were reported, through military channels to the +competent offices at home (Plenipotentiary for Economy, Four Year Plan, +Minister of Armaments) who had to make disposition concerning use and +utilization. The Armed Forces itself had no independent right of +action.[sm type ends] + +[sm type begins]It is correct that (according to the Thomas book, +2353-PS) raw materials and also machines were removed to Germany for the +production of implements of war as the Prosecution charges, since both +had served the enemy’s conduct of the war and had necessarily gone out +of production. No military agency could order the removal to Germany, +because it had no right at all to dispose of “booty” of this sort. Only +the three highest Reich authorities mentioned could effect such a +removal on the basis of a general authority by the Führer or a special +order by him to the Commander-in-Chief of the Army. The OKW and the +Chief of the OKW, as well as the Economic Armament Office, had no right +of disposition and command outside of their own fields, nor did any +separate chain of command exist from the OKW Economic Armament Office to +these detachments, et cetera. The communications and report chain ran +via the unit staffs to the OKH Quartermaster General, with whom the +highest Reich authorities (Food, Economy, Armament Ministry, Four Year +Plan) had representatives who reported to their departmental chiefs. +Orders by the Defendant Keitel as Chief of the OKW concerning +utilization, use, or seizure of economic goods have not been given; this +follows from Document 2353-PS.[sm type ends] + +[sm type begins]The unified leadership of the entire war economy in +France and Belgium was then centered in Reich Marshal Göring as Delegate +of the Four Year Plan by the Führer Decree of 16 June 1940.[sm type +ends] + +[sm type begins]For determining the responsibility it is of significance +that the staff of the Economic Armament Office examined the problems +which concerned the armament economy and utilization of economy in the +occupied territories. Their appraisals, which in this respect were +regarded as decisive, are collected in Document EC-344, coming from the +Foreign Department in the OKW (headed by Admiral Canaris).[sm type ends] + +[sm type begins]With reference to Articles 52, 53, 54, and 56 of the +Hague Convention of Land Warfare, it is explained therein in connection +with total warfare that “economic rearmament” must be regarded as +forming part of the “belligerent enterprise,” and accordingly all +industrial supplies of raw materials, semifinished and manufactured +goods as well as machinery, et cetera, are to be regarded as serving the +war effort. Therefore, according to the viewpoint of the author of this +opinion, all these goods are liable to be seized and used against +compensation after the conclusion of peace. Furthermore, the problem of +the need for war is examined and Germany’s state of economic difficulty +at that time is already affirmed. For the judgment of the Defendant +Keitel this opinion is of significance insofar as the well-known Foreign +Department under the responsible leadership of Admiral Canaris as late +as November 1941 gave vent to an opinion which justified the economic +utilization of the occupied countries. That was the office which +concerned itself with problems of international law and on which the +Defendant Keitel based his confidence.[sm type ends] + +[sm type begins]An organization for all economic requirements and +intended to supersede the former organization was created for Russia on +the basis of experiences in the West by Reich Marshal Göring by virtue +of a general delegation of authority by the Führer.[sm type ends] + +[sm type begins]The chief of the Economic Armament Office together with +State Secretary Körner drew up this organization for Reich Marshal +Göring without participation by the Chief of the OKW. The Chief of the +OKW for this purpose put General Thomas at the disposal of Reich Marshal +Göring. The Chief of the OKW did not acquire any influence at all on +this organization, and severed his own and the OKW’s connection with it +after Reich Marshal Göring had received full powers and the OKW had put +General Thomas at his disposal. General Thomas thus acted solely on +instructions by Reich Marshal Göring. The OKW and the Defendant Keitel +were never under Reich Marshal Göring’s orders nor were they bound by +his instructions. The Defendant Keitel was not represented in Göring’s +Economic Staff and had nothing to do with the Eastern Economic Staff +(See Thomas book, Page 366).[sm type ends] + +[sm type begins]The execution of the work was centrally directed by the +Economic Operations Staff in Berlin as part of the Four Year Plan. The +local higher command in the Eastern district was under the Eastern +Economic Staff. To this organization was also attached the troops’ +supply department. The OKW, and the Defendant Keitel as Chief of the +OKW, never issued orders concerning the exploitation, administration, or +confiscation of economic property in occupied territory. This is +revealed in the book submitted by the Prosecution, Document 2353-PS. On +Page 386 of this document, Thomas, in summarizing, correctly stated as +follows:[sm type ends] + + [sm type begins]“The Eastern Economic Operations Staff under the + Reich Marshal or State Secretary Körner was responsible for the + whole economic direction of the Eastern area; the state + secretaries were responsible for departmental instructions; the + Economic Armament Office was responsible for the reconstruction + of the economic organization; the Eastern Economic Operations + Staff was responsible for the execution of all measures.”[sm + type ends] + +[sm type begins]The same is shown by Document USSR-10:[sm type ends] + + [sm type begins]“Directives (of Reich Marshal Göring) for the + unified conduct of economic management in the zone of operations + and in political administrative areas to be subsequently + established.”[sm type ends] + +[sm type begins]This ought to prove that the OKW and Keitel are clear of +any responsibility for the consequences attendant upon carrying out the +measures within the scope of the Barbarossa-Oldenburg operation.[sm type +ends] + +I now come to Page 143 and following pages, where I refer to the +assertion made by the French Prosecution regarding the participation of +the OKW and Keitel in the cases of Oradour and Tulle. + +The French Prosecution have charged the Defendant Keitel in person with +the commission of war crimes and crimes against humanity. The accusation +concerns in particular the execution of French civilians without a +trial. In this connection the cases of Oradour and Tulle received +special emphasis. They are recorded in a report made by the French +Government—Document F-236. The French Prosecution stated: “Keitel’s +guilt in all these things is certain.” + +In this connection it is not my task to discuss the frightful events of +Oradour and Tulle. As defense counsel for the Defendant Keitel I have to +examine whether the Prosecution’s assertion that the Defendant Keitel +bears any guilt or responsibility for these atrocious happenings has any +foundation. + +You will understand that the Defendant Keitel attaches particular +importance to the production of evidence to the effect that he is not +responsible for these terrible occurrences, and, further, that when such +things came to his knowledge he took steps to have them cleared up in +order that the actual offenders might be brought to account. It is an +indisputable fact that Keitel had no direct part in these crimes. Any +responsibility and guilt attaching to the defendant can therefore be +derived only from his official position. No orders of any kind bearing +Keitel’s signature have been submitted by the Prosecution, so that, +whoever is guilty, Keitel is not, at any rate, among those directly +responsible. + +The terrible sufferings inflicted on a large number of French villages +are recorded in the notes of General Bérard dated 6 July and 3 August +1944. I pointed out, when this document was submitted, that the +submission of these complaints alone—that is, unaccompanied by the +replies, which are also in the hands of the Prosecution—cannot convey +an objective picture of the actual facts, on which to base a +pronouncement on the guilt of the Defendant Keitel. As the Defendant +Keitel, not being empowered to issue orders in the matter, cannot +possibly be taken into consideration as the originator of the orders +which led to the complaint, any responsibility and guilt on Keitel’s +part can therefore be based only on the fact that he did not cause the +necessary steps to be taken on receiving information from the German +Armistice Commission. What Keitel did or did not do can be gathered only +from the reply notes and from the directives issued by the OKW to the +German Armistice Commission. + +Here, too, the Defendant Keitel would have been unable to provide proof +to the contrary, had not the French Prosecution themselves submitted a +document, F-673, which was intended to furnish proof of Keitel’s +individual guilt. This document was already read by the French +Prosecution at the session of 31 January 1946: + + [sm type begins]“High Command of the Armed Forces; F. H. Qu., 5 + March 1945; Secret.[sm type ends] + + [sm type begins]“WFST./Qu. 2 (I) No. 01487/45 g.[sm type ends] + + [sm type begins]“Subject: Alleged Killing of French Nationals + without Trial.[sm type ends] + + [sm type begins]“German Armistice Commission; Group Wa/Ib No. + 5/45 g.[sm type ends] + + [sm type begins]“1) German Armistice Commission; 2) + Commander-in-chief West.[sm type ends] + + [sm type begins]“Received: 17 March 1945.[sm type ends] + + [sm type begins]“In August 1944 the French delegation of the + German Armistice Commission addressed a memorandum to D. W. St. + K. (German Armistice Commission) describing in detail incidents + leading to the alleged shooting without justification of + Frenchmen during the period of 9 to 23 June 1944. Statements + made in the French note were almost entirely made in such detail + that an examination by Germany was possible without any + difficulty.[sm type ends] + + [sm type begins]“On 26 September 1944 the High Command of the + Armed Forces charged the German Armistice Commission with the + handling of the case. Thereupon, the German Armistice Commission + asked the Commander-in-Chief West to investigate the incidents + and to take action with regard to the representation of facts + given in the French memorandum.[sm type ends] + + [sm type begins]“On 12 February 1945 the German Armistice + Commission was informed by the Judge of Army Group B that since + November 1944 the case was in the hands of Army Judge of Pz. + AOK/6 (6th Armored Army Command) and that Pz. AOK/6 and 2. SS + Pz. Division ‘Das Reich’ (2nd Armored SS Division ‘Das Reich’) + had in the meantime separated from the Army Group.[sm type ends] + + [sm type begins]“Handling of this matter calls for the following + remarks:[sm type ends] + + [sm type begins]“The Frenchmen, and the delegation of the Vichy + Government, have made the grave charge against the German Armed + Forces of numerous cases of unjustified killing of French + nationals, in other words, of murder. Germany’s interest + demanded a reply to this charge at the earliest possible moment. + Considering the length of time which has elapsed since receipt + of the French memorandum, it should have been possible to take + up at least some of the charges and to refute them through + actual investigation, irrespective of subsequent development in + military matters and the transfer of troops incidental thereto. + If even a portion of the charges made had been refuted at once, + the French people would have been shown that their whole subject + matter is based on doubtful material; but because nothing was + undertaken by the Germans, the opponents’ impression must be + that we are not in a position to answer these charges.[sm type + ends] + + [sm type begins]“The manner in which this case was handled + indicates that there possibly still exists a great deal of + ignorance as to the importance to be attached to all reproaches + against the German Armed Forces, to counteract any enemy + propaganda, and to refute immediately any purported German acts + of atrocity.[sm type ends] + + [sm type begins]“The German Armistice Commission is hereby + instructed to continue to devote to this matter all possible + energy. It is requested to render any assistance possible, and + particularly to take all steps for expediting matters within its + own sphere of action. The fact that Pz. AOK/6 (6th Armored Army + Command) no longer forms part of the forces of the + Commander-in-Chief West is no reason to hold up the necessary + investigations in order to clarify and refute the French + charges.[sm type ends] + + [sm type begins]“For information: Army General Staff (Gen. St. + d. H.); Headquarters Gen./Qu.[sm type ends] + + [sm type begins]“(signed) Keitel.”[sm type ends] + +This document of the OKW, signed by Keitel, shows that: + +1. On receiving the French complaint of 26 September 1944, the OKW +issued orders to the German Armistice Commission to investigate and deal +with the matter. + +2. The German Armistice Commission thereupon instructed +Commander-in-Chief West to investigate the incidents. + +3. On receiving a letter from Army Group B, the OKW expressed itself as +follows: + + “It was in the German interest to answer these charges at the + earliest possible moment. + + “This case shows that there is still widespread ignorance as to + the importance of combating all imputations made against the + German Armed Forces and all enemy propaganda, and of refuting + immediately any alleged acts of atrocity on the part of the + Germans. + + “The German Armistice Commission is hereby instructed to + continue to pursue their investigations as energetically as + possible. It is requested that every possible assistance be + rendered to the commission and that all possible steps be taken + to expedite matters in your own sphere of action. The fact that + Pz. AOK/6 is no longer under the jurisdiction of + Commander-in-Chief West is no reason for discontinuing the + necessary investigation in order to clarify and refute the + French charges.” + +It may therefore be considered as proved that in this case the Defendant +Keitel, on receiving information, took energetic steps in accordance +with the range of his competency as Chief of the OKW, and as far as he +was in a position to do so. This eliminates the charge made by the +Prosecution insofar as the Defendant Keitel is concerned. At the same +time, however, the way in which the Defendant Keitel handled this case +suggests that he acted in similar manner in other cases. + +Mr. President, before dealing with the problem of hostages which I may +discuss later, I should like to discuss the grave evidence on the Night +and Fog Decree on Page 154. + +[sm type begins]War, which is frightful even under orderly international +law, becomes atrocious when the last restraints are removed. Many +terrible things have happened during this war and it is impossible to +tell which chapter of this book of sorrows and tears is the saddest; +but, in any case, one of the most lamentable chapters is that of the +treatment of hostages. In international law the question of treatment of +hostages is controversial. The taking of hostages is almost generally +admitted. Doubtless, although taking hostages is assumed to be +admissible under international law, that has as yet no bearing on their +treatment. The treatment, even more than the seizure, of hostages must +be subject on the one hand to the law of absolute military necessity +which cannot otherwise be met, and, on the other, to the application of +all possible guarantees to prevent the indiscriminate shooting of +hostages as a principle. Any primitive and brutal handling of this very +institution, which is doubtful under international law and is apt to +affect the absolutely innocent, must be rejected.[sm type ends] + +[sm type begins]Unfortunately, this problem which seldom arose in +previous wars between civilized people, acquired considerable importance +during World Wars I and II. The cases previously taken into +consideration and also explained in the Army Manual 2g (H. Dv. 2g) +(Document Book 1, Exhibit Number Keitel-7) resulted from military +necessity of troops in operation. As happened with so many things in +this war, but especially due to the change-over from theater of +operations to rear area, there finally developed a broadening and +degeneration in the application of a principle which originally was +indisputable according to international law.[sm type ends] + +[sm type begins]The immediate connection with military necessity was +absent, that is to say, with military action; its place was taken by +interests which naturally included military safeguards, particularly of +lines of communications between the front zone and home.[sm type ends] + +[sm type begins]It must be said that this fundamental change ought to +have been recognized, and ought to have been taken into consideration in +the handling of the existing rules governing hostages. The degeneration +in the treatment of hostages was decisively influenced by the fact that +civil administrative and police organizations claimed for themselves one +of the extreme means of soldierly warfare and often made use of it +arbitrarily, wherever they wanted to break resistance, by arresting +people without concrete individual or even presumptive guilt and by +treating them from the viewpoint of reprisals. Collective arrests for +individual offenses come into this category.[sm type ends] + +[sm type begins]All these cases have nothing to do with the original +facts in the cases of hostages; but since the word “hostage” is used for +all these cases, the Prosecution in many cases has placed on the Armed +Forces a responsibility which they should not bear.[sm type ends] + +[sm type begins]I request the Tribunal, when judging this complex and +when examining the responsibility of the Defendant Keitel, to take into +consideration:[sm type ends] + +[sm type begins](1) The concept of hostages, the basic conditions +governing the taking of hostages end their treatment had become known to +all authorities in command and their offices in the Armed Forces by the +Army manual regulations (H. Dv. 2g) before the war, especially before +the campaign in the West. The Documents 1585-PS, submitted by the +Prosecution itself (discussions of the hostage question with the +Luftwaffe), and 877-PS (operation orders of the Army for “Case Yellow” +and the attack in the West, dated 29 October 1939) reveal that special +regulations had originally been issued for the seizure of hostages. +Their application was justifiably transferred to the Army offices and +later to the military commanders who were subordinate to the Army, never +to the Armed Forces High Command (OKW).[sm type ends] + +[sm type begins](2) Nobody could be in doubt, according to existing +regulations (H. Dv. 2g), as to what authority Army commanders had and as +to who had to make a decision on a possible shooting of hostages. No +supplementary order or supplementary regulation was ever issued by the +Armed Forces High Command (OKW). The letter from Falkenhausen (Military +Commander in Belgium), dated 16 September 1942 (Document 1594-PS), +mentioned by the Prosecution, and the report of this military commander +(1587-PS) are not addressed to Keitel, but quite correctly to his +superior office, the Army High Command (OKH) Quartermaster General; +Keitel received neither the letter nor the report. Whether Hitler +received them in his capacity of Supreme Commander of the Army and +military superior of the military commanders, Keitel does not know.[sm +type ends] + +[sm type begins](3) The OKW was not informed of the cases in which +inhabitants of the occupied territories were mistakenly and falsely +described as hostages and treated without legal procedures.[sm type +ends] + +[sm type begins](4) Whenever hostages, without being connected with the +plots and terror acts against the occupying power, were held responsible +for them without local or material connection, such practice is contrary +to service regulations.[sm type ends] + +[sm type begins](5) Insofar as the OKW or the Defendant Keitel was +approached by military agencies in individual cases referring to hostage +problems, for example by the Military Commanders in France and Belgium, +the evidence has shown that the “hostages” to be shot were to be +selected from the circle of persons already sentenced to death by virtue +of the law. However, so that this should not be outwardly +recognized—for producing the desired deterrent effect—it was to be +announced that hostages had been shot.[sm type ends] + +[sm type begins]The French Prosecution has cited the OKW and Keitel in +connection with this complex by means of Document 389-PS, which is the +same as UK-25, a Führer order of 16 September 1941 drawn up by Keitel. +This document, whose contents are monstrous, does not, however, have +anything to do with the question of taking hostages and the treatment of +hostages. The word “hostages” does not appear in the text. From the +subject and from the contents it can be seen that this is an order +designed to combat the resistance movement in the eastern and +southeastern war theaters, and therefore is related to the basic +principles of the so-called ideological war against the Soviet Union, +which has been already dealt with at another place, and condemned. When +the communication of 16 September 1941 was addressed to the Military +Commander in France by the High Command of the Army for information +purposes the latter had already decreed the so-called “Hostages Law” +(Document Number 1588-PS). Accordingly no causal connection existed, as +the French Prosecution has assumed, between the directives signed by +Keitel and ordered by Hitler in Document 389-PS, and the hostage +legislation in the West. The latter had been decreed without +collaboration or consultation of the OKW. The agency to which the +Military Commanders in France and in Belgium were subordinated was the +High Command of the Army (OKH), and not the OKW; the agency which +specialized in this matter was the Quartermaster General (in the OKH). +With regard to this it must also be considered that at this period of +time Hitler himself was the Commander-in-Chief of the Army, which +explains the above-mentioned references to the OKW. In reality, they +were not references to the OKW, but to Hitler as Supreme Commander of +the Armed Forces and Commander-in-Chief of the Army, which were +partially routed through Hitler’s working staff (the OKW). This however +establishes no competence and thereby no responsibility of the OKW and +the Defendant Keitel as Chief of the OKW.[sm type ends] + +[sm type begins]In conclusion I request permission to hand in some +literature to the Tribunal demonstrating present-day opinions pertaining +to international law with regard to the question of hostages for +consideration in the examination of these facts in the case. I limit +myself to reading the summarization of expert opinions and military +practices:[sm type ends] + + [sm type begins]“In summarizing it must be said, concerning the + question of taking hostages and the execution of hostages, that + according to existing practices and probably also according to + existing rules of international law, the taking of hostages in + occupied territory is permissible under international law + insofar as hostages are taken in order to guarantee the proper + legal behavior of the enemy civilian population. According to + the commentary by Waltzog, which is standard for the German + conduct of warfare, it is also a formal requirement, whenever + hostages are taken according to unwritten international law + (common law), that such taking of hostages, the reasons + therefor, and in particular the threat of their execution must + be brought to the knowledge of those for whose lawful behavior + the hostages are to go bail. The question as to whether it is + permissible to execute hostages cannot be interpreted + unequivocally. The German jurisprudents of international law, + like Meurer, the Englishman, Spaight, and the Frenchmen, Sorel + and Funck, consider this permissible in the extremes of + emergency, and therefore not contrary to international law.”[sm + type ends] + +During the whole course of this Trial, no order made such a deep +impression on the mind of the public as did the Night and Fog Decree. +This was an order which originated during the fight waged against acts +of sabotage and against the resistance movement in France. As a result +of the withdrawal of troops in connection with the campaign against the +Soviet Union, the number of plots aimed against the security of German +troops stationed in France, and in particular the acts of sabotage aimed +at the destruction of all means of communication increased daily. This +necessitated increased activity on the part of the counterintelligence +offices, which in its turn led to proceedings being taken and sentences +being passed by military courts against members of the resistance +movement and their accomplices. These sentences were very severe. In +addition to a large proportion of death sentences, sentences of +imprisonment were also passed. The reports made almost daily during the +situation conferences led to violent disputes in which Hitler, in +accordance with his usual habit, tried to find someone on whom to put +the blame; in this instance he fixed upon the far too cumbersome +handling of military justice. In his spontaneous and explosive way, he +ordered directives to be worked out for a rapid, effective, and lasting +intimidation of the population. He declared that imprisonment could not +be considered an effective means of intimidation. To Keitel’s objection +that it was impossible to sentence everyone to death and that military +courts would, in any case, refuse to co-operate, he replied that he did +not care. Offenses found sufficiently grave to necessitate the +imposition of capital punishment without very lengthy court proceedings +would continue to be dealt with as before—that is, by the courts—but +where this was not the case, he would order the suspected persons to be +brought secretly to Germany and all news of their fate to be withheld, +since the publication of prison sentences in occupied territory was +robbed of its intimidating effect by the prospect of the amnesty to be +expected at the end of the war. + +The Defendant Keitel thereupon consulted the chief of the Judge +Advocate’s Office of the Armed Forces and the chief of the +counterintelligence office (Canaris), who is also the originator of the +letter of 2 February 1942, Document UK-35, on the procedure to be +followed. When repeated applications made to Hitler to refrain from this +procedure, or at least not to insist upon complete secrecy, had no +effect, they finally submitted a draft which we have before us in the +well-known decree of 7 December 1941. + +The staff of experts and the Defendant Keitel had succeeded in +establishing the competency of the Reich Administration of Justice for +the persons removed to Germany (see last paragraph of directives of 7 +December 1941). Keitel had guaranteed this stipulation by means of the +first Enactment Decree governing the directives, in which he specified +(last sentence in Paragraph I, IV) that unless orders to the contrary +were issued by the OKW, the case would be turned over to the civil +authorities in accordance with Section 3, Paragraph 2, second sentence, +of the Articles of War. The defendant believed that in this way he had +at least made certain that the persons concerned would have the benefit +of regular court proceedings and that in accordance with the German +regulations for the accommodation and treatment of prisoners on trial +and prisoners serving a sentence, there would be no danger to life and +limb. Keitel and his staff of experts reassured themselves by the fact +that however cruel the suffering and suspense endured by those concerned +might be, the lives of the deported persons had at least been saved. + +In this connection, allusion is also made to the text of the covering +letter of 12 December 1941. As the Codefendant General Jodl stated +during his examination, a certain wording was regularly adopted to +indicate that the signatory did not agree with the order submitted. The +covering letter begins with the words: “It is the carefully considered +desire of the Führer ...” + +The closing sentence runs: “The attached directives ... represent the +Führer’s views.” + +Persons who received such letters knew from that wording that here was +another order of the Führer which could not be evaded, and concluded +that the order should be applied as leniently as possible. + +The letter of 2 February 1942 originated with the counterintelligence +office (Amt Ausland Abwehr), and the original which is before you must +have been signed by Canaris. At that time the defendant was not in +Berlin where, after promulgation of the decree of 7 December 1941, the +matter was dealt with further. Keitel, at the Führer’s headquarters, was +not informed of the contents of the letter. In connection with the above +remarks, the possibility of leniency in application, which might be +deduced from the wording of the letter, resided in the fact that +counterintelligence offices were directed “to insure as far as possible +before making the arrest that they were in possession of sufficient +evidence to justify a conviction of the offender.” The competent +military court had also to be approached before the arrest took place +with a view to ascertaining whether the evidence was adequate. + +In Germany the persons concerned were to be handed over to the Reich +Administration of Justice. The correctness of the Defendant Keitel’s +assumption in this respect is borne out by the fact that Canaris, in +view of his attitude with which the Tribunal is familiar, would never +have ordered a prisoner to be handed over to the Gestapo. As already +stated, the Defendant Keitel did not know of the letter of 2 February +1942. + +Although the Defendant Keitel believed that he had succeeded as far as +possible in safeguarding those in question, the Night and Fog Decree, as +it was later called, weighed heavily on his mind. Keitel does not deny +that this decree is incompatible with international law and that he knew +that. + +What Keitel denies, however, is that he knew—or that prior to the +Nuremberg Trial he knew—that on arrival in the Reich the persons +involved were imprisoned by the Police and then transferred to +concentration camps. This was contrary to the meaning and purpose of the +decree. The Defendant Keitel could not know of this because in cases +which did not involve proceedings by a military court, the competency of +the Armed Forces only extended to turning over the persons concerned +through the competent military court officials to the Police to be +transferred to Germany and there turned over to the Administration of +Justice. The Defendant Keitel is unable to say from his own knowledge +why so many persons were brought into concentration camps and there +subjected to the treatment known as “Night and Fog,” as described by +witnesses who have appeared here. The evidence presented to this +Tribunal must lead to the conclusion that all political suspects who, as +a result of political measures, were removed from the occupied +territories to Germany for detention in concentration camps were without +the knowledge of the military authorities designated “NN” prisoners by +the Police, for according to the testimonies we have heard the majority +of persons in “NN” camps had not been formally sentenced by military +courts in occupied territories for transfer to Germany. + +It is evident therefore that Police authorities in the occupied +territories made use of this decree as a universal and unrestricted +_carte blanche_ for deportations, exceeding every conceivable limit and +disregarding the exclusive rights exercised by the military authorities +and the rules of procedure imposed upon them. + +Such a state of affairs in the occupied territories without the +knowledge of the Armed Forces authorities can only be explained by the +fact that as a result of the appointment of Higher SS and Police leaders +the military commanders of the occupied territories no longer had +executive powers in Police affairs and that these Higher SS and Police +leaders received their orders from the Reichsführer SS. + +The Reichsführer SS and the Higher SS and Police leaders were never +authorized by the OKW to apply this decree, which was intended as a +police executive measure to be used only by the Armed Forces. The decree +affected only those offices of the Armed Forces exercising judicial +authority; and it is clear from the wording that it was restricted to +these and drafted to apply to them. + +The German Armistice Commission’s letter of 10 August 1944 (Document +843-PS) proves that the OKW really had no knowledge of this improper +application of the decree of 7 December 1941. It says there: + + “... that the basis for arrests seems to have undergone a + change, since in the early stages they were only made in + individual cases of attacks on the Reich or the occupation + forces; in other words, those elements were apprehended who had + played an active part in definite cases”—and who were liable to + punishment under those articles of the Hague Convention which + refer to land warfare—“whereas at present ... numerous persons + are also being deported to Germany who, on account of their + anti-German sentiments, are being removed from France as a + precautionary measure ...” + +Paragraph 4 of that letter contains the following passage: + + “The above-mentioned decree is based on the condition that the + persons arrested will be made the subject of judicial + proceedings. There is reason to believe that on account of the + number of cases—especially those coming within the scope of + precautionary measures—such proceedings are now frequently + dispensed with and prisoners are no longer confined in the + detention or penal institutions of the German legal authorities, + but in concentration camps. In this respect, too, there has been + a considerable change as compared with the original provisions + of the decree ...” + +The OKW’s reply of 2 September 1944, which is signed by Dr. Lehmann, +refers expressly to the directives of the Führer decree of 7 December +1941, the so-called Night and Fog Decree. It contains no statement to +the effect that the original conditions for deportation to Germany were +changed by the OKW. + +This reply, however, was sent from Berlin without the knowledge of the +Defendant Keitel; and the Armistice Commission’s letter was obviously +also sent to Berlin, where the legal department of the Armed Forces was +situated. Keitel himself was at the Führer’s headquarters and did not +hear of the correspondence. + +It must be admitted that failure to reply immediately to the German +Armistice Commission’s letter of 10 August 1944, with the explanation +that this constituted an abuse of the decree of 7 December 1941 and the +directives issued in connection with it, was a grave omission. An +investigation should have been initiated at once in order to find and +punish those responsible for this abuse. Insofar as the Tribunal should +regard Hitler’s military staff as guilty, the Defendant Keitel accepts +responsibility within the scope of his general responsibility as Chief +of the OKW. + +THE PRESIDENT: Perhaps this will be a convenient time to take a recess. + + [_A recess was taken._] + +DR. NELTE: Mr. President, the Prosecution have charged the Defendant +Keitel with participating in the deportations for the purpose of +obtaining forced labor. In this connection Keitel declares that his +competency did not cover the procurement, recruiting, and conscription +of people in the occupied territories nor did it cover allocation of the +labor forces procured in this way for the armament industry. The +Codefendant Sauckel confirmed this in his testimony of 27 May 1946. + +Mr. President, I should like to have official notice taken of the +following statements without my reading them. My colleague Dr. +Servatius, according to our agreement, will explain the connection +between the Armed Forces replacement and the procurement of manpower +through the Plenipotentiary General for the Allocation of Labor. + +[sm type begins]The Codefendant Sauckel gave the following testimony:[sm +type ends] + + [sm type begins]“Question: You mean by that that the OKW and the + Defendant Keitel had no functions whatsoever appertaining to the + matter of procurement, recruiting, and conscription of labor in + the occupied territories?[sm type ends] + + [sm type begins]“Answer: He had no function whatsoever + appertaining to this matter. I got in touch with Field Marshal + Keitel, because the Führer frequently charged me to ask Field + Marshal Keitel to transmit his orders by phone or by + instructions to the army groups.[sm type ends] + + [sm type begins]“Question: Did the OKW, and in particular Keitel + as Chief of the OKW, have any function appertaining to the + question of labor allocation in the homeland?[sm type ends] + + [sm type begins]“Answer: No; because the commitment of workers + took place in the economic branches for which they had been + requested. They had nothing to do with the OKW.”[sm type ends] + +[sm type begins]During the cross-examination by General Alexandrov +documents were presented which, according to the opinion of the +Prosecution, should prove the participation of Keitel and the OKW. In +this connection it must be examined whether and in what way the OKW and +Keitel had participated in the sphere of duty of Defendant Sauckel as +Plenipotentiary General for the Allocation of Labor (GBA). Document +USSR-365, presented by the Prosecution, contains the basic provisions +concerning spheres of tasks and powers of the GBA, the decree of 21 +March 1942 about the appointment of Sauckel as GBA, the order of Göring +as Delegate for the Four Year Plan dated 27 March 1942, the program for +labor allocation, and the task and solution as conceived by Sauckel.[sm +type ends] + +[sm type begins]These documents give expression to the relationships and +contacts of the GBA with many offices. These relationships and contacts +vary in their nature.[sm type ends] + +[sm type begins]The jurisdiction and the official channels in the sphere +of tasks of the GBA are clear: He is the spokesman for the Four Year +Plan (Order Number 3 of 27 March 1942) and he was therefore subordinate +to Reich Marshal Göring and Hitler, who was identified with the Four +Year Plan. The relationships and contacts of the OKW or Keitel with the +GBA and his sphere of tasks, according to the outcome of the evidence +(testimony of Keitel, Sauckel, and the documents) were as follows:[sm +type ends] + +[sm type begins]The replacement system for the whole Armed Forces was +under the jurisdiction of the Defendant Keitel in his capacity as Chief +of Staff of the High Command of the Armed Forces (OKW). Losses at the +front were reported to the OKW by each individual branch of the Armed +Forces and at the same time replacements were requested.[sm type ends] + +[sm type begins]On the basis of these requests, Keitel submitted a +report to the Führer, according to which replacements had to be procured +for the troops of the various branches of the Armed Forces at certain +designated times by the service commands through their replacement +inspectorates.[sm type ends] + +[sm type begins]The replacement inspectorates consequently called up the +recruit year group, besides those draftees who had been deferred up to +that time. With the war progressing, the result was almost invariable +that, for instance, the Armament Ministry (for the deferred employees of +the armament industry), the Ministry for Agriculture (for the deferred +employees of agriculture), the Transportation Ministry (for the deferred +employees working for the railroad), et cetera, made the greatest +difficulties with regard to the demands of the replacement authorities, +and protested against them.[sm type ends] + +[sm type begins]They pointed out that the tasks of the various +departments would suffer dangerously if the deferred employees were +removed without further ado. The competent ministers requested that +before the release of deferred employees new workers should be procured +to make up for those released.[sm type ends] + +[sm type begins]Therefore, the matter was referred by way of the labor +offices to the Plenipotentiary General for the Allocation of Labor +(GBA), whose task it was to procure the necessary manpower for the +domestic labor allocation required. The Defendant Sauckel as the GBA, +who as a special deputy personally did not have at his disposal an +independent organization of his own for the recruiting, procurement, and +possible conscription of labor, was therefore forced to get in touch +with the competent authorities in the occupied territories for the +execution of his task.[sm type ends] + +[sm type begins](a) In the occupied territories under civil +administration (Holland, Norway, East), it was the Reich Commissioner +who had to assist Sauckel.[sm type ends] + +[sm type begins](b) In the territories under military commanders +(France, Belgium and the Balkans) it was the Quartermaster General of +the Army.[sm type ends] + +[sm type begins](c) In Italy, in the highest instance, it was the +Ambassador, Rahn.[sm type ends] + +[sm type begins]This is obvious from the decree of 27 March 1942.[sm +type ends] + +[sm type begins]Before Sauckel became active in the execution of his +task in the various territories, he invariably turned to Hitler, whose +subordinate he was with respect to the Four Year Plan, in order to +obtain through his instructions the necessary backing by the local +authorities. This was done in such a way that the order was issued to +the local authorities to give Sauckel the assistance which he considered +necessary for the execution of his task. The Defendant Keitel was not +present at such discussions between Hitler and Sauckel, nor did he have +any jurisdiction or competence in these questions. However, somebody had +to inform the local authorities about Hitler’s orders, and the result +was that Hitler, who did not recognize any difficulties of jurisdiction, +told the next best man to inform the local authorities about Sauckel and +to point out Hitler’s wish to grant him all the necessary assistance.[sm +type ends] + +[sm type begins]These “next best” were Keitel, for the military +administration of the occupied territories, or Dr. Lammers, for the +territories under civilian administration.[sm type ends] + +[sm type begins]Such was the contact which existed between Keitel and +Sauckel in this matter. How the details of recruiting or otherwise +procuring labor were carried out was not within the competence of the +OKW, nor did they receive any reports on the matter. The interest of the +OKW was limited to the fact that the required number of soldiers were +placed at its disposal through induction by the replacement authorities. +In particular, the OKW and the Defendant Keitel had nothing to do with +the allocation of the labor procured by the Plenipotentiary General for +the Allocation of Labor within war economy; this was solely the business +of the labor offices, where firms requiring labor requested the workers +deemed necessary.[sm type ends] + +[sm type begins](1) The name of Keitel stands at the beginning of +Sauckel’s activity, as submitted by the Prosecution, because Keitel was +cosignatory to the Führer decree concerning the Plenipotentiary General +for the Allocation of Labor (Document USSR-365). From repeated +references of the Prosecution to this fact the conclusion must be drawn +that apparently it sees in this cosignatory act of the Defendant Keitel +the beginning of a chain of developments, at the end of which stood such +frightful happenings as were presented here.[sm type ends] + +[sm type begins]In this connection I would refer to the significance, +expounded elsewhere, of the cosignature by Keitel as Chief of the OKW on +such decrees of the Führer. This fact, which penally cannot be +considered as determinative, does not constitute guilt for the reason +that all conception of the events occurring during the further course of +developments was lacking.[sm type ends] + +[sm type begins](2) If the Führer’s decree of March 1942 provides the +legal origin of the Plenipotentiary General for the Allocation of Labor +(GBA), the first step in the participation of this official is also +connected with the name of Keitel as head of the OKW, as the personnel +replacements matters were subordinated to him and he made his requests +for replacement of losses at the front to the subordinate military +replacement offices. Here also the same applies as in (1), as neither an +appreciable determinative effect nor criminal guilt was involved.[sm +type ends] + +[sm type begins](3) Owing to the situation, as characterized by the +shortage of manpower, there came into being a purely factual connection +between the military personnel requirements and the requirements of the +economic replacement of workers, without Keitel thereby coming in +contact with the GBA either as regards competence or orders.[sm type +ends] + +[sm type begins]Sauckel confirmed the statement of Keitel that the OKW +had nothing to do with the recruiting, levying, or any other +mobilization of labor, nor with the allocation of the labor procured for +German economy.[sm type ends] + +I have to refer to some documents which the French Prosecution have +submitted to incriminate the OKW and Keitel on account of active +participation in deportation. These are Documents 1292-PS, 3819-PS, +814-PS, and 824-PS. + +The first document is a marginal note by the Chief of the Reich +Chancellery, Dr. Lammers, on a conference with Hitler, at which the +question of procuring labor for 1944 was discussed. The Defendant Keitel +took part in this discussion. Annexed to this report is a copy of a +letter from the Defendant Sauckel dated 5 January 1944, in which he sums +up the results of the conference of 4 January and proposes a Führer +decree. I quote the following passages: + + “5. The Führer pointed out that all German offices in occupied + territories and countries within the Tripartite Agreement must + become convinced of the necessity of taking in foreign labor, in + order to be able to give uniform support to the Plenipotentiary + General for the Allocation of Labor in carrying out the required + organization, propaganda, and police measures.” + +I quote from the penultimate paragraph: + + “In my opinion the decree should in the first place be sent to + the following offices ... + + “3. The Chief of the OKW, Field Marshal Keitel, for the + information of the Military Commanders in France and Belgium, + the Military Commander Southeast, the General accredited to the + Fascist Republican Government of Italy, the chiefs of the army + groups in the East.” + +The document therefore proves that Field Marshal Keitel took part in a +conference, without, however, stating his point of view on the problem +of labor procurement; and that he was to be informed of the Führer +decree so that the military commanders might be informed. This confirms +what the Defendant Keitel stated in the passages which I have not read +as to how he came to be concerned with this question. The second and +third documents refer to a conference in the Reich Chancellery on 11 +July 1944, in which Field Marshal Keitel did not take part. + +Now the French prosecutor has made the statement that the teletype is an +order issued by Field Marshal Keitel to the military commanders to carry +out the decisions of the conference of 11 July. M. Herzog has said in +this connection that Keitel’s order was dated 15 July 1944. A brief +examination of the document, a photostat, shows it to be a teletype +dated 9 July, containing an invitation from the Chief of the Reich +Chancellery, Dr. Lammers, to a conference on 11 July, which invitation +Keitel transmitted to the military commanders. + +This was, therefore, an error. The conclusions based by the Prosecution +on this document are therefore also invalid, but the document is +interesting from another point of view as well. It contains the +following statement: + + “The following directives will govern the attitude of military + commanders or their representatives: + + “... I refer to my directives for the collaboration of the Armed + Forces in the procurement of labor from France (OKW/West/ku + (Verw. 1 u. 2 West) Nr. 05210/44 geh.).” + +The Defendant Keitel requested me to call the attention of the Court to +this method of expression for the following reasons: Numerous documents +bearing the signature “Keitel” have been submitted here. In accordance +with his position, which has already been described and which excluded +all powers of command, Keitel never used the first person in +communications or transmissions of orders. Apart from this document, +only one other teletype was submitted by the Prosecution in which the +first person is used. In consideration of the large number of documents +which bear out Keitel’s statement, his claim that he was transmitting an +order from the Führer must be believed; and, indeed, the whole style of +wording is that of a Führer order. + +General Warlimont (Document 3819-PS) also expressly refers during the +conference of 11 July to a “recently issued Führer order,” the contents +of which as reproduced by him are exactly as contained in the teletype +directive bearing the signature “Keitel.” + +The newly-submitted Document F-824 (RF-1515) is also significant and +confirms the evidence given by the Defendant Keitel. This is a letter +written on 25 July 1944 by the Commander-in-Chief West, Von Rundstedt, +who in the meantime had become the Chief of the Military Commanders in +France and Belgium. It states that “by order of the Führer the demands +of the GBA and of Speer are to be fulfilled”; further, that in the event +of evacuation of the battle area measures must be taken to secure +refugees for labor and finally, that reports on the measures taken must +be sent to the OKW. + +This reference to the Führer’s order shortly after 11 July 1944 shows, +as does Warlimont’s statement, that no directives from Keitel or the OKW +existed. It may therefore be considered proved that neither Keitel +himself nor the OKW had any part in measures for the recruitment or +conscription of labor. The OKW was the office responsible for +transmitting the orders which Hitler as Sauckel’s superior wished to +forward to the military commanders; it had no competence and no legal +responsibility. + +Nor is this complex in line with subjects within the ministerial scope +of the OKW, where at least there functioned a team of experts providing +an opportunity for voicing objections. + +In the sphere of labor procurement and labor commitment Keitel was in +contact with Sauckel’s activities at the following points: + +(a) He was cosignatory of the Führer’s decree of 21 March 1942 +concerning the appointment of the GBA; + +(b) He transmitted Hitler’s orders to support the activities of the GBA +by special instructions to the local military authorities in the +occupied territories. + +Now, the French Prosecution, at the session of 2 February 1946, made the +following statement in regard to the deportation of the Jews, within the +scope of the Defendant Keitel’s responsibility: + + “I shall discuss the order for the deportation of the Jews + later; and I shall prove that in the case of France this order + was the result of joint action on the part of the military + government, the diplomatic authorities, and the Security Police. + This leads to the conclusion that: (1) the Chief of the High + Command, _et cetera_; (2) the Reich Foreign Minister, and (3) + the Chief of the Security Police and Reich Security Main Office + (RSHA) must necessarily have been informed of and have agreed to + this action, for it is clear that through their official + functions they must have learned that such measures concerning + important matters were taken, and also that the decisions were + invariably made jointly by the staffs of three different + administrations. These three persons are therefore responsible + and guilty.” + +If you examine the very detailed treatment of this point of the +Indictment you will find that the High Command of the Armed Forces is +not mentioned and that no document is produced which originates either +with the OKW or with the Defendant Keitel. It appears from the Keitel +affidavit, Document Book 2, that the military commander for France, who +is mentioned several times, was not subordinated to the OKW. In handling +this question the Prosecution have attempted to prove that the “Army” as +M. Faure says, co-operated with the Foreign Office and the Police, and +is endeavoring to place responsibility for this co-operation upon the +highest authorities, that is, in the case of the Army, on the OKW, and +therefore on Keitel. This deduction is erroneous. In order to make that +clear, I must point out that there was a military commander in France. +This military commander was invested with civil and military authority +and represented the defunct state authority, so that in addition to +military tasks he had police and political functions. The military +commanders were appointed by the OKH and received their orders from the +latter. It follows that on this question they had no direct relations +with the OKW. Since the Defendant Keitel as Chief of the OKW was not +superior to the OKH, there is likewise no direct relation either of +subordination or seniority. + +M. Faure’s statement in this connection is unfortunately true. In France +there existed a large number of authorities who worked along different +lines, contradicted each other, and frequently encroached upon each +other’s spheres of competency. The OKW and the Defendant Keitel had +actually nothing to do with the Jewish question in France or with the +deportations to Auschwitz and other camps; they had no powers of command +or control, and therefore no responsibility. + +The fact that the letter K in the telegram of 13 May 1942 (Document +RF-1215) was interpreted to mean Keitel is characteristic of the +attitude adopted by the prosecuting authorities, all of whom assumed +that the Defendant Keitel was implicated. The French Prosecutor has +fortunately cleared up the error. + +The Prisoner-of-War Question. + +The fate of prisoners of war has always aroused considerable feeling. +All civilized nations have tried to alleviate the fate of soldiers who +fell into the hands of the enemy as far as was possible without +prejudicing the conduct of the war. The reaching of an agreement to be +adhered to even when the nations were engaged in a life and death +struggle has been considered one of the most important advances of +civilization. The torturing uncertainty with regard to the fate of these +soldiers seemed to be ended; their humane treatment guaranteed; the +dignity of the disarmed opponent assured. + +Our belief in this achievement of human society has begun to waver, as +in the case of so many other instances. Although the agreement was +formally adhered to originally owing to the determined resistance of the +general officers, we must nevertheless admit that a brutal policy +oblivious of the nation’s own sons and of anything but its own striving +after power, has in many cases disregarded the sanctity of the Red Cross +and the unwritten laws of humanity. + +The treatment of the responsibility of the Defendant Keitel in the +general complex of the prisoner-of-war system comprises the following +separate problems: + +(1) The general organization of the treatment of prisoners of war, that +is, the German legislation on the prisoner-of-war system; (2) the power +of command over prisoner-of-war camps, which are classified under Oflag, +Stalag, and Dulag; (3) the supervision and control of this legislation +and its application; (4) the individual cases which have been brought +before the Court in the course of the indictment. + +Since the organization of the prisoner-of-war system has been set forth +as part of the presentation of evidence, I can restrict myself to +stating that Keitel was, by order of Hitler and within the scope of his +assignments as War Minister, in accordance with the decree of 4 February +1938 competent and to that extent responsible: (a) for the material +right to issue ordinances within the entire local and pertinent sphere, +restricted in part by co-operation and co-responsibility regarding the +utilization of prisoner-of-war labor; (b) for the general allocation of +prisoners of war arriving in Germany to the corps area commander, +without having powers of command over prisoner-of-war camps and +prisoners of war themselves; (c) for the general supervision of the +camps in the OKW area not including those within the zone of operations, +the rear Army area, or the area of the military commanders, nor the Navy +and Air Force prisoner-of-war camps. + +The competent office in the OKW was the “Chief of the Prisoner-of-War +Organization,” who was several times made personally responsible by the +Prosecution. The Defendant Keitel attaches importance to the fact that +the Chief of the Prisoners of War Organization was his subordinate +through the Armed Forces Department. Hence the responsibility of the +Defendant Keitel in this domain is self-evident, even in those cases in +which he did not personally sign orders and decrees. + +The basic regulations for the treatment of prisoners of war were: (1) +The service regulations issued by the Chief of the OKW within the scope +of normal preparations for mobilization, and laid down in a series of +Army, Navy, and Air Force publications; (2) the stipulations of the +Geneva Convention, to which special reference was made in the service +regulations; (3) the general decrees and orders which became necessary +from time to time in the course of events. + +Apart from the treatment of Soviet Russian prisoners of war who were +subject to regulations on an entirely different basis, to which I shall +later make particular reference, the provisions of the service +regulations in accordance with international law, that is the Geneva +Convention, held good. The OKW exercised supervision over the strict +observance of these Army service regulations through an Inspector of the +Prisoners of War Organization and, from 1943 on, through a further +control agency, the Inspector General of the Prisoners of War +Organization. + +The representatives of the protecting powers and the International Red +Cross may be considered as constituting an additional control agency, +which no doubt submitted to the various governments reports on +inspections and visits to the camps, in accordance with the provisions +of the Geneva Convention. No such reports have been submitted here by +the Prosecution; I shall come back to the charges made here by the +French prosecutor. But the fact that the British and American +prosecutors, for instance, have not submitted such reports may well +permit the conclusion that the protecting powers did not discover any +serious violations with regard to the treatment of inmates of +prisoner-of-war camps. + +The treatment of prisoners of war, which led to no serious complaints +during the first few years of the war with the Western Powers—I except +isolated cases like that of Dieppe—became more and more difficult for +the OKW from year to year, because political and economic considerations +gained a very strong influence in this sector. The Reichsführer SS tried +to get the Prisoners of War Organization into his own hands. The +resulting struggles for power caused Hitler to turn over the Prisoners +of War Organization to Himmler from October 1944 on, the alleged reason +being that the Armed Forces had shown itself to be too weak and allowed +itself to be influenced by doubts based on international law. Another +important factor was the influence exerted on Hitler, and through him on +the OKW, by the labor authorities and the armament sector. This +influence grew stronger as the labor shortage increased. + +The Party Chancellery, the German Labor Front, and the Propaganda +Ministry also played a part in this question, which was in itself purely +a military one. The OKW was engaged in a constant struggle with all +these agencies, most of which had more influence than the OKW. + +All these circumstances must be taken into consideration in order +properly to understand and evaluate the responsibility of the Defendant +Keitel. As he himself had to carry out the functions “by order,” and +since Hitler always kept the problem of the Prisoners of War +Organization under his personal control for reasons previously +described, the Defendant Keitel was scarcely ever in a position to voice +his own, that is, military, objections against instructions and orders. + +The Treatment of French Prisoners of War. + +As a result of the agreement of Montoire, the keynote to apply to +relations with French prisoners of war became “collaboration.” Their +treatment moved in the direction indicated by this; and discussions with +Ambassador Scapini brought about a considerable improvement for them. In +this connection I refer to the affidavit of Ambassador Scapini, who +states among other things: + + “It is correct that General Reinecke examined the questions at + hand objectively and without hostility, and that he attempted to + regulate them reasonably when this depended on his authority + alone. He took a different attitude when the pressure exercised + on the OKW by the Labor Service—that is by the Allocation of + Labor—and sometimes by the Party made itself felt.” + +The prisoners of war used for labor were scarcely guarded, and those +employed in the country had almost complete freedom of movement. By +virtue of the direct understanding with the Vichy Government there were +considerable alleviations in comparison with the rules of the Geneva +Convention, after repatriation under the armistice provisions had very +considerably lessened the number of the original prisoners of war. + +To mention just a few ... + +THE PRESIDENT: Dr. Nelte, is there anything very important in these next +few pages, until you get to Page 183? + +DR. NELTE: It is the treatment of the French ... + +THE PRESIDENT: If you would only deal with it in a very general way. I +should have thought there was nothing very important until you get to +Page 183 where you begin to deal with the accusation in reference to the +Sagan case. You see, it is 12 o’clock now. + +DR. NELTE: I believe that by 1 o’clock I shall be through. Or am I to +understand your remark to mean that you are limiting my speech to a +certain time? I asked you to grant me 7 hours for my speech, and my +request ... + +THE PRESIDENT: That is what the Tribunal’s order was. + +DR. NELTE: I submitted my request to the Tribunal, and believed I could +assume that in this particular case my request was granted, but if that +is not the case ... + +THE PRESIDENT: Well, the Tribunal will give you until 12:30 on account +of any interruptions which I may have made. But I again suggest to you +that there is really nothing between 178 and 183 which is of any real +importance. + +DR. NELTE: I hope, Mr. President, that that does not mean that these +statements are to be considered irrelevant. I think my subjective +opinions ... + +THE PRESIDENT: I said “of real importance.” + +[sm type begins]DR. NELTE: (1) Release of all prisoners of war born in +or before 1900; (2) release of fathers of families with numerous +children and widowers with children; (3) considerable alleviation of the +mail and parcel facilities; increased German support for officers’ and +enlisted personnel camps by establishing institutions for entertainment +and physical welfare of the prisoners of war; (4) for officer +candidates, facilitation of their further training in their civilian +occupation and care by a French General, Didelet.[sm type ends] + +[sm type begins]As Ambassador Scapini himself has testified, he and the +members of his delegation had complete freedom of correspondence with +and access to all camps and labor detachments, except for special +military reasons in isolated cases. The members of the delegation were +able to speak to their prisoner comrades privately, like every +representative of a protecting power, and they were particularly able to +make detailed inquiries about conditions with the French camp leader or +the trustees, who were elected by the prisoners of war themselves. In +addition to this, officers who had been selected by him personally were +placed at his disposal as his assistants.[sm type ends] + +[sm type begins]The subsequent regrettable occurrences, as presented by +the French Prosecution here, resulted from the deterioration of the +political and military situation. One of these occurrences was the +escape of General Giraud, which Hitler, in spite of all arguments +brought by the OKW, used to have measures against the French generals +and officers increased in severity. The second decisive incident was the +Allied invasion of Africa, which led to general unrest and to numerous +attempts at escape. Finally, at the time of the last stage of the war, +measures were applied which can only be explained by the—I would call +it catastrophic—morale.[sm type ends] + +[sm type begins]In examining the responsibility of the Defendant Keitel +it must be considered that he did not possess any direct influence on +the occurrences in the camps and workshops. His responsibility can only +be determined if it is proven that he had caused a lack of necessary +supervision, or that no intervention had taken place after learning of +such occurrences. In this respect, however, there is no proof of guilt +of the OKW.[sm type ends] + +[sm type begins]The French Prosecution, in the charges against the +Defendant Keitel, have presented a note from Ambassador Scapini to the +German Ambassador, Abetz, of 4 April 1941 under a collective number, +F-668. This refers to the retaining of French civilians in Germany as +prisoners of war. This document states on Page 5:[sm type ends] + + [sm type begins]“In order to facilitate the examination of the + categories to be released, I am transmitting enclosed a + summarized chart. I am also enclosing a copy of the note of the + German Armistice Commission Number 178/41 of 20 January 1941, + which refers to the decision of the OKW to liberate all French + civilians who are being treated as prisoners of war.[sm type + ends] + + [sm type begins]“I hope that the execution of this decision will + be expedited through this report, which I have the honor to + submit to you.”[sm type ends] + +[sm type begins]I have asked the French Prosecution to pass on to me the +note of the German Armistice Commission Number 178/41 of 20 January +1941, in which this decision of the OKW is mentioned. I believe that the +copy of this note, which was attached to the communication of 4 April +1941 (Document F-668) should have been handed over with this document, +because it was part of this document. Unfortunately this has not been +done.[sm type ends] + +[sm type begins]From the reference it can be seen that the OKW, and +thereby the Defendant Keitel, held the view that things would have to be +dealt with in a correct manner in accordance with the agreements with +France, and that the OKW, which was the proper authority for these +fundamental orders with regard to the prisoners of war, had decided to +release all French civilians who were being treated as prisoners of +war.[sm type ends] + +[sm type begins]It is difficult to recognize how this document can serve +as evidence of guilt of the Defendant Keitel. Rather will this document +have to be regarded as symptomatic of the fact that the Defendant +Keitel, when violations against existing agreements came to his +knowledge, saw to it that they were stopped.[sm type ends] + +[sm type begins]The Treatment of Soviet Russian Prisoners of War.[sm +type ends] + +[sm type begins]Hitler already regarded the prisoner-of-war problem as a +personal domain of his legislation, and the more time passed, the less +he regarded it from the points of view of international law and military +needs, but rather from a political and economic angle. The problem in +the treatment of Soviet Russian prisoners of war from the very beginning +was also subject to ideological considerations which for him was the +primary motive in the war against the Soviet Union. The fact that the +Soviet Union was not a member of the Geneva Convention was exploited by +Hitler, in order to obtain a free hand in the treatment of Soviet +Russian prisoners of war.[sm type ends] + +[sm type begins]He stated to the generals that the Soviet Union felt +equally free from all stipulations which had been created by the Geneva +Convention for the protection of prisoners of war. One must read the +decrees of 8 September 1941 (Document Number EC-338, Exhibit Number +USSR-356) in order to understand clearly Hitler’s attitude. In the +official document of the counterintelligence office (Amt Ausland Abwehr) +of 15 September 1941, rules were laid down, which were to be observed +according to international law, concerning the treatment of prisoners of +war where the Geneva Convention did not apply between belligerents.[sm +type ends] + +[sm type begins]The Defendant Keitel has testified on the witness stand +that he had accepted the viewpoints laid down in this document and had +presented them to Hitler. The latter strictly refused to rescind the +decree of 8 September 1941. He told Keitel:[sm type ends] + + [sm type begins]“Your doubts originate from the soldierly + conception of a chivalrous war. Here we are concerned with the + destruction of an ideology.”[sm type ends] + +[sm type begins]Keitel noted this passage down word for word and added +to his written statement of 15 September 1941: “I therefore approve and +countenance these measures.”[sm type ends] + +[sm type begins]It was a typical example of Keitel expressing his doubts +and Hitler taking his final decision. Keitel stood up for these +decisions and did not let his subordinate offices know that he was of a +different opinion. Such was his attitude. For this also he is, within +the limits of his official position, taking responsibility.[sm type +ends] + +[sm type begins]What Keitel actually thought is revealed in the excerpt +submitted as Document Keitel-6, Document Book 1, from the book +_Employment Conditions for Eastern Workers and Soviet Russian Prisoners +of War_. The Codefendant Speer has testified in cross-examination that +he over and over again told the Defendant Keitel that any employment of +prisoners of war of any enemy country in enterprises prohibited by the +Geneva Convention was out of the question. Speer further testified that +Keitel several times rejected any attempt to employ prisoners of war of +any western nation in actual war plants.[sm type ends] + +[sm type begins]The defense counsel for the Defendant Speer will also +deal with this question in detail.[sm type ends] + +[sm type begins]In addition, I just want to submit certain individual +cases charged against the Defendant Keitel personally by the +Prosecution, that is to say, cases where, in the opinion of the +Prosecution, he is supposed to have exceeded the limits of the general +responsibility inherent in his position.[sm type ends] + +I should not like to omit that case which was repeatedly mentioned—and +rightly so—in the course of the evidence, the case of the 50 Royal Air +Force officers, the shameful case of Sagan. + +It particularly affects us as Germans, because it shows the utter lack +of all restraint and proportion in the orders and the character of +Hitler, who did not allow himself to be influenced for an instant in his +explosive decisions by any thought of the honor of the German Armed +Forces. + +The cross-examination of the Defendant Keitel by the representative of +the British Prosecution has determined how far his name too has been +implicated in these abominable facts. Although the evidence clearly +establishes the fact that Keitel neither heard nor transmitted Hitler’s +murderous order, that he and the Armed Forces had nothing to do with the +execution of this order and, finally, that he did everything in his +power to prevent the escaped officers from being handed over to Himmler +and did at least succeed in saving the officers who were taken back to +the camp, he is painfully conscious of his guilt in not realizing at the +time the terrible blow which such a measure must inflict on German +military prestige throughout the world. In connection with the treatment +of the Sagan case the French Prosecution confronted the Defendant Keitel +with Document 1650-PS, which deals with the treatment of escaped +prisoners of war. + +This, Mr. President, is the so-called “Bullet Decree.” Considering the +lack of time, I should like to deal shortly with this case, but I must +deal with it because it is one of the most significant and gravest +accusations against my client; I shall only summarize. + +During his cross-examination, Keitel made the following statement: + + “This Document 1650-PS emanates from a police agency and + contains a reference to the OKW by the words: ‘The OKW has + decreed the following ...’” + +Keitel says: + + “I have certainly neither signed this order of the OKW nor seen + it; there is no doubt about that.” + +He cannot explain it; he can only assume how this order came to be +issued by the Reich Security Main Office. + +In his examination he mentions the various possibilities whereby such an +order could have reached the office which issued it. Then he refers to +another document, 1544-PS, which contains all the orders and directives +concerning prisoners of war, but not this order referring to the escaped +officers and noncommissioned officers. + +The witness Westhoff has confirmed that the concept “Stufe III” and its +meaning were unknown to him and to the office of the OKW Prisoners of +War Organization. He also stated that on assuming office on 1 April 1944 +he found no order of this nature, not even a file note. + +The meaning of that Bullet Decree was completely obscure. I believe this +obscurity has been cleared up by the evidence given by the Codefendant +Kaltenbrunner, who on his part had never before spoken to the Defendant +Keitel on the matter. + +I pass on to Page 187, where Kaltenbrunner said: + + “I had never heard of the Bullet Decree before I assumed the + office. It was an entirely new concept for me. Therefore I asked + what it meant. He answered that it was a Führer order; that was + all he knew. I was not satisfied with this information, and on + the same day I sent a teletype message to Himmler asking for + permission to look up a Führer order known as the Bullet + Decree.... A few days later, Müller came to see me on Himmler’s + orders and submitted to me a decree which, however, did not + originate with Hitler but with Himmler, and in which Himmler + stated that he was transmitting to me a verbal Führer order.” + +From this it is safe to assume that, without consulting Keitel and +without the latter’s knowledge, Hitler must have given a verbal order to +Himmler, as stated in Document 1650-PS which was submitted here. + +Now I come to Page 190 of my final plea: + +[sm type begins]This confirms the assumption which Keitel expressed in +his interrogation, although Kaltenbrunner had not previously informed +him that he knew of verbal orders given by the Führer.[sm type ends] + +[sm type begins]3) In another case also, the one dealing with the +branding of Soviet prisoners, Keitel’s statement in the witness box has +proved to be the simple truth.[sm type ends] + +[sm type begins]The witness Roemer has confirmed in her supplementary +affidavit that the order to mark Soviet prisoners of war by branding was +cancelled immediately after being issued. A further statement of the +Defendant Keitel is therefore also credible, according to which this +order had been issued without his knowledge, although naturally Keitel’s +responsibility for the acts of the party concerned is not thereby +contested.[sm type ends] + +[sm type begins]4) In this connection I refer finally to Document 744-PS +dated 8 July 1943, submitted in support of the charge against Keitel. It +deals with the increased iron and steel program, for the execution of +which the allocation of the necessary miners from among the prisoners of +war was ordered. The first two paragraphs of the document read:[sm type +ends] + + [sm type begins]“For the extension of the iron and steel program + the Führer on 7 July ordered the unqualified promotion of the + necessary coal production and the employment of prisoners of war + to cover the labor requirements. The Führer ordered the + following measures to be taken with all possible dispatch for + the ultimate purpose of assigning 300,000 additional workers to + the coal mining industry.”[sm type ends] + +[sm type begins]The last paragraph reads:[sm type ends] + + [sm type begins]“In connection with the report to the Führer, + the Chief of Prisoner of War Affairs will advise every 10 days + concerning the progress of the drive. First report on 25 July + 1943, reference date: 20 July 1943.”[sm type ends] + +[sm type begins]I submit this document, not because of its actual +content, which will be taken up by the defense of the Defendant Speer, +but because of its symptomatic evidential value for the answer of the +Defendant Keitel, when he stated that Hitler was particularly interested +in prisoner of war affairs and himself personally issued the principal +orders and those he considered important.[sm type ends] + +[sm type begins]5) The cases also connected with this complex such as: +Terror-fliers, lynch law, Commando tasks, combat against partisans, will +be dealt with by other defense counsels. The Defendant Keitel has made +his statement regarding these individual facts during his interrogation +and cross-examination.[sm type ends] + +For the subjective facts of the alleged crimes one element is of special +importance: the knowledge of them. Not only from the point of view of +guilt, but also in view of the conclusions which the Prosecution have +drawn, namely, acquiescence, toleration, and omission to take any +counteraction. The fact of knowledge comprises: (1) Knowledge of the +facts; (2) recognition of the aim; (3) recognition of the methods; (4) +conception of, or possibility of conceiving the consequences. + +During the discussion of the question of how far the Defendant Keitel +could possibly have drawn any conclusion as to the intention of +realization by force from knowledge of the text of the National +Socialist Party Program and from Hitler’s book, _Mein Kampf_, I have +already demonstrated why Keitel did not have this recognition of a +realization by force. + +Keitel denied any knowledge of the intended wars of aggression up to the +time of the war against Poland, and his statement is confirmed by +Grossadmiral Raeder. This comment is certainly a subjective truth +inasmuch as Keitel did not seriously believe in a war with Poland, not +to mention one involving intervention by France and England. This +belief, held by Keitel and other high-ranking officers, was based on the +fact that the military potential was insufficient, according to past +experiences, to wage a war with any chance of victory, especially if it +developed into a war on two fronts. This belief was strengthened by the +nonaggression pact signed on 23 August 1939 with the U.S.S.R. + +However, that is not the core of the problem. The speeches which Hitler +delivered before the generals, beginning with the conference of 5 +November 1937, at which Keitel was not present, made it increasingly +clear that Hitler was determined to attain his goal by any means, that +is, if peaceful negotiations did not succeed, he was prepared to fight, +or at least to use the Armed Forces as an agent of pressure. There is no +doubt about that. It is a debatable point whether the text of Hitler’s +speeches, of which no official record is available, is altogether +accurately reproduced. There is, however, no doubt at all that they +allow Hitler’s intentions to be clearly recognized. + +A distinction must be made as to whether it was possible for his hearers +merely to gather that a definite plan was to be carried out, or whether +they could not but recognize the existence of a general aim of +aggression. If they did not recognize this, the only explanation lies in +the fact that the generals on principle did not include the question of +war or peace in their considerations. From their point of view this was +a political question which they did not consider themselves competent to +judge since, as has been stated here, they were not acquainted with the +reasons for such a decision and, as the Defendant Keitel has testified, +the generals were bound to have confidence in the leadership of the +State to the extent of believing that the latter would only undertake +war for reasons of pressing emergency. That is a consequence of the +traditional principle that although the Armed Forces was an instrument +of the politicians it should not itself take part in politics—a +principle which Hitler adopted in its full stringency. The Court must +decide whether this may be accepted as an excuse. Keitel stated on the +witness stand that he recognized the orders, directives, and +instructions which had such terrible consequences, and that he drew them +up and signed them without allowing himself to be deflected by any +consequences which they might entail. + +This testimony leaves three questions undecided: (1) The question of the +methods used to carry out the orders; (2) the question of the conception +of the consequences which actually followed; (3) the question of the +_dolus eventualis_. + +The Defendant Keitel, in his affidavit (Document Book Number 12), showed +with reference to the so-called ideological orders how the SS and Police +organizations influenced the conduct of the war, and how the Wehrmacht +was drawn into events. The evidence has shown that on their own +responsibility numerous Wehrmacht commanders failed to apply such +terrible orders, or applied them in a milder form. Keitel, brought up in +a certain military tradition, was unfamiliar with SS methods which made +the effects of these orders so terrible, and they were therefore +inconceivable to him. According to his testimony he did not learn of +these effects in their full and terrible extent. + +The same is true of the Führer’s Night and Fog Decree which I have just +discussed. If he did not allow himself to be deflected by the “possible” +results when he transmitted the orders, the _dolus eventualis_ cannot be +affirmed in regard to the results which took place. It must be assumed +rather that if he had been able to recognize the horrible effects, he +would, in spite of the ban on resignations, have drawn a conclusion +which would have freed him from the pangs of conscience and would not +have drawn him from month to month further and further into the +whirlpool of events. + +This may be an hypothesis; but there are certain indications in the +evidence which confirm it. The five attempts made by Keitel to leave his +position, and the fact that he resolved to commit suicide, which General +Jodl confirmed in his testimony, enable you to recognize the sincerity +of Keitel’s wish. + +The fact that he did not succeed must be attributed to the circumstances +which I have already presented: The unequivocal and, as Keitel says, +unconditional duty of the soldier to do his duty obediently to the +bitter end, true to his military oath. + +This concept is false when it is exaggerated to the extent of leading to +crime. It must be remembered, however, that a soldier is accustomed to +measure by other standards in war. When all high-ranking officers, +including Field Marshal Paulus, represent the same point of view, the +honesty of their convictions cannot be denied, although it may not be +understood. + +In reply to the questions asked so often during this Trial—why he did +not revolt against Hitler or refuse to obey his orders—the Defendant +Keitel stated that he did not consider these questions even for a +moment. His words and behavior show him to be unconditionally a soldier. + +Did he incriminate himself by such conduct? In general terms: May or +must a general commit high treason if he realizes that by carrying out +an order or measure he will be violating international law or the laws +of humanity? + +The solution of this problem depends on whether the preliminary question +is answered as to who is the “authority” which “permits or orders” such +criminal high treason. This question seems to me important because the +source of the authority must be established—the authority which can +permit or order the general to commit high treason; which can “bind and +absolve.” + +Since the existing state power, which in this case was represented by +the Chief of State, who was identical with the Supreme Commander of the +Armed Forces, can certainly not be this authority, we merely have to +decide whether an authority exists above or beyond the authority of the +particular state, which could “bind or absolve.” Since the struggle for +power between Pope and Emperor, which dominated the Middle Ages, has no +longer any significance in regard to constitutional law, such a power +can only be impersonal and moral. The German poet Schiller expresses the +supreme commandment of the unwritten eternal law in the words: “The +tyrant’s power yet one limit hath ...” That is only one of the manifold +poetical revelations in world literature, which express the deep +yearning for freedom felt by all peoples. + +If there is an unwritten law which indisputably expresses the conviction +of all men, it is this, that with due consideration for the necessity of +maintaining order in the state, there is a limit to the restriction of +freedom. Where this is transgressed, a state of war will arise between +the national order and the international power of world conscience. + +It is important to state that no such statute of international law has +hitherto existed. This is understandable, since freedom is a relative +conception, and the different conceptions existing in various states and +the anxiety of all states for their sovereignty are irreconcilable with +recognition of an international authority. The authority which “binds +and absolves”—which absolves us of guilt before God and the people—is +the universal conscience which becomes alive in every individual. He +must act accordingly. The Defendant Keitel did not hear the warning +voice of the universal conscience. The principles of his soldierly life +were so deeply rooted, and governed his thoughts and actions so +exclusively, that he was deaf to all considerations which might deflect +him from the path of obedience and faithfulness, as he understood them. +This is the really tragic role played by the Defendant Keitel in this +most terrible drama of all times. + +THE PRESIDENT: Dr. Kauffmann—yes, go on, Dr. Kauffmann. + +DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): Mr. President, +may I first say that I have a few changes which I will announce when I +come to them. I shall take about two hours altogether, Mr. President. + +May it please the Tribunal: The present Trial is world history—world +history full of revolutionary tensions. The spirits conjured up by +mankind are stronger than the cries of the tortured peoples for justice +and peace. Since man was deified and God humiliated, chaos, as an +inevitable consequence and punishment, has afflicted mankind with wars, +revolutions, famine, and despair. Whatever the guilt borne by my +country, it is now enduring—and permanently enduring—the greatest +penance ever endured by any people. + +The means adopted to restore longed-for prosperity are wrong, because +they are second-rate. And none of my listeners can question the truth of +my assertion that the present Trial was not begun at the end of a period +of wrong, and in order to end it, but is surrounded by the surging waves +of a furious torrent bearing on its surface the hopeless wreckage of a +civilization guarded through the centuries, and in the demoniacal depths +of which lurk those who hate the true God, who are the enemies of the +Christian religion, and therefore opposed to all forms of justice. + +The European commonwealth of peoples, of which my country, if only +because of its geographical position, was the very heart, is seriously +afflicted. It suffers from the spirit of negation and humiliation of +human dignity. Rousseau would have cursed his own maxims had he lived to +see the radical refutation of his theories in this twentieth century. +The peoples proclaimed the “liberty” of the great revolution, but in the +course of a mere 150 years they have in the name of that same liberty +created a monster of bondage, cruel slavery, and ungodliness, which +contrived to elude earthly justice, but did not escape the living God. + +This Tribunal, conscious of its task and its mission, will some day have +to submit to the searching eye of history. I do not doubt that the +judges selected are striving to serve justice as they see it. But is not +this task indeed impossible of solution? The American chief prosecutor +stated that in his country important trials seldom begin until one or +two years have elapsed. I do not need to elucidate the profound core of +truth contained in this practice. Could human beings, torn between love +and hate, justice and revenge, conduct a trial immediately after the +greatest catastrophe humanity has ever known—and constantly harassed by +the statutory demands for rapid and time-saving proceedings—in such a +way as to earn the thanks of mankind when the waters of this second +deluge have withdrawn into their old bed? + +Would it not have been better to allow for that very lapse of time +between crime and atonement with regard to the present proceedings? + +Justice can be administered only when the Court possesses that inner +liberty and independence which owes allegiance only to conscience and to +God himself. Such a sacred activity had largely been forgotten in my +country, above all, by the governing class of the nation; Hitler had +prostituted the law. But this Tribunal intends to prove to the world +that the welfare of the peoples is based on law alone. And no conception +could arouse more joy and hope within the heart of people of good will +than that of unselfish justice. + +I am not criticizing the provisions of the Charter; but I do ask whether +any justice has ever been, or ever could be, found on earth if might +submitted to reason so far as to grant its enemies regular trial, but +could not see fit to crown this tribute to reason by appointing a +genuinely international tribunal; for even though 19 nations have +approved of the legal basis of the Charter it is far more difficult to +administer the laws laid down. + +The American chief prosecutor has emphatically declared that he did not +propose to hold the entire German nation guilty; but the records of this +Tribunal, which history will some day scrutinize attentively, +nevertheless contain many things which, to us Germans, appear to be +false and, therefore, painful. Unfortunately they also contain numerous +explicit questions on the part of the French Prosecution as to the +extent to which, for instance, certain Crimes against Humanity committed +both inside and outside Germany were known to the German people. Indeed, +the French Prosecution have asked explicitly: “Could these atrocities +remain, on the whole, unknown to the entire German nation, or were they +aware of them?” These and similar questions are not conducive to the +solution of such a difficult and tragic problem with even the slightest +approach to the truth. Insofar as evil, which always grows and manifests +itself organically, reigns supreme in a nation, every individual who has +reached the age of reason will bear some guilt for his country’s +disasters. Yet even this guilt, which is on the metaphysical plane, +could never become the collective guilt of a nation unless every +individual member of this nation has incurred a separate guilt. But who +would be entitled to establish the existence of such a guilt without +examining thousands of individual circumstances? + +The problem, however, becomes even more difficult if one should try—and +this is the final aim—to establish the so-called national guilt for any +past crimes against peace, humanity, and so forth, committed on the part +of the omnipotent State, no matter through what agencies. One must bear +in mind most carefully the condition of the Reich before 1933. This has +been done sufficiently here and I shall not discuss it. + +Hitler claimed for himself alone such far-reaching concepts as the +powerful German diligence, austerity, family affection, willingness to +make sacrifices, aristocracy of labor, and a hundred more. Millions +believed in this; millions of others did not. The best of them did not +lose hope of being able to avert the tragedy which they foresaw. They +flung themselves into the stream of events, assembled the good, and +fought, visibly or invisibly, against the evil. Can the man in the +street be blamed for not immediately refusing to believe in Hitler, +considering the latter’s ability to pass as a seeker after the truth, +and the fact that he constantly raised the palm of peace for the benefit +of the peace lovers? Who knows whether he himself was not convinced at +the outset that he could strengthen the Reich without going to war? +After the assumption of power large sectors of the German people +probably felt themselves to be at unison with many other peoples on +earth. Therefore, it is not astonishing that gradually, and with the +approval or tolerance of other countries, Hitler acquired the nimbus of +a man unique in his century. Only a German who lived in Germany during +the past few years and did not view Germany through a telescope from +abroad, is competent to report on the historical facts of an almost +impenetrable method of secrecy, the psychosis of fear, and the actual +impossibility of changing the regime, and thus to comply with Ranke’s +demand of historians to establish “how it was.” + +[sm type begins]Ought the artisans, peasants, merchants, or housewives +categorically to have asked Hitler or Himmler for a change? I would be +quite willing to let the Prosecution answer this, as I am of the opinion +that there are living in my country no fewer idealistic and heroic +people than in any other country.[sm type ends] + +[sm type begins]It will never be possible to ascertain how large a +number of Germans knew and approved of concentration camps, their terror +and such like. Only if one could establish knowledge and approval in the +soul of every individual German, considering general and particular +conditions prevailing in the Germany of the last 12 years, which it is +not now the moment to discuss, these, and only these, could be +considered guilty.[sm type ends] + +[sm type begins]Therefore I do not think it just to put, to a larger or +smaller extent, the principle of collective guilt in the place of +individual responsibility, as it is held valid in all civilized nations; +it was unfortunately similarly applied by the National Socialist regime +to a whole people, and almost led to its complete extermination. May +there be no repetition of Article 231 of the Treaty of Versailles, that +portentous document of the twentieth century.[sm type ends] + +Let me say a few words about that secrecy. This Trial has shown clearly +that the State itself managed to suppress such facts as would lower its +prestige and betray its real intentions. Even the men indicted here, who +have been termed conspirators, have been the victims of that carefully +devised system of secrecy, or most of them at least. + +A special place in that system of secrecy is reserved to the +plan—ordered by Hitler and executed by Himmler, Eichmann, and a circle +of the initiated—for the biological destruction of the Jewish people, +the ghastly aim of which was for years concealed by the term “final +solution”—a term not immediately self-explicable. The problem of the +Jewish question ... + +THE PRESIDENT: Dr. Kauffmann, it seems to the Tribunal a very long +preamble to the defense of the Defendant Kaltenbrunner, who has not been +named at all yet in what you have said. Is it not time that you came to +the case of the defendant whom you represent? We are not trying a charge +against the German people. We are trying the charges against the +defendant. That is all we are trying. + +DR. KAUFFMANN: Mr. President, in the next few sentences I would have +concluded that; but I ask you to appreciate that the important word +“humanity” forms the core of my case. I believe that I am the only +defense counsel who intends to go more deeply into that subject; and I +request permission to make these few statements. I shall come to the +case of Kaltenbrunner very soon. + +THE PRESIDENT: On Page 8 you have a headline which is, “The Development +of the History of the Intellectual Pursuit in Europe.” That seems rather +far from the matters which the Tribunal have got to consider. + +DR. KAUFFMANN: Mr. President, may I remind you that this question was +discussed by the Prosecution, and especially by M. de Menthon. I do not +believe that I can carry out my task if I take these tremendous crimes +only as facts. Some German must have an opportunity of giving a short +description of the development—and it is very short. At the end of a +few pages I return to the case of Kaltenbrunner; and my plea will in any +case be the shortest one presented here. + +THE PRESIDENT: Dr. Kauffmann, the Tribunal proposes, as far as it can, +to decide the cases which it has got to decide in accordance with law +and not with the sort of very general, very vague and misty +philosophical doctrine with which you appear to be dealing in the first +12 pages of your speech, and, therefore, they would very much prefer +that you should not read these passages. If you insist upon doing so, +there it is; but the Tribunal, as I say, do not think that they are +relevant to the case of the Defendant Kaltenbrunner. They would much +prefer that you would begin at Page 13, where you really come to the +defendant’s case. + +DR. KAUFFMANN: Mr. President, it is, of course, extremely difficult for +me to present a plea which is already very much condensed, and now to +disrupt it even more. It is really difficult. I hope that the Tribunal +will appreciate that. + +THE PRESIDENT: Well, Dr. Kauffmann; there has been nothing condensed in +what you have read up to the present. It has been all of the most +general type. + +DR. KAUFFMANN: In that case may I at least read a few sentences below +the headline with regard to the defense? It starts ... + +THE PRESIDENT: Can you not summarize the general nature of what you wish +to say before you come to the Defendant Kaltenbrunner? + +DR. KAUFFMANN: Yes, I shall try. I shall read only a few sentences, for +the sake of better understanding, from the short chapter dealing with +the task of the Defense. I say there that the defense has been +established by the Charter and ask how in the face of such excesses a +defense can still identify its task. I then go on to say: + +In this Trial, error and truth are mysteriously mixed, probably more so +than ever before in any great trial. To try to find the truth raises the +counsel for the defense to the dignity of an assistant of the Court. Not +only does it entitle the Defense to doubt the credibility of the +witnesses but also that of the documents, in particular of the +Government reports. It entitles the counsel for the defense to state +that such reports, although they may be admitted by the Charter in +evidence, can only be accepted under protest, because none of the +defendants, defendants’ counsel, or neutral observers could have any +influence on the way in which they originated. + +These testimonies were certainly made within the framework of the law, +but also within the framework of power. + +The people, or a large part of the people, in their aspirations toward +peace and happiness elevated the representative of a heretical doctrine +to the position of their Führer, and this Führer abused the faith of his +followers so that the people, no longer possessing the strength to offer +a timely and open resistance, were engulfed in the gigantic abyss of the +annihilation of their entire racial, political, spiritual, and economic +existence. All of this is tragic in the truest sense of the word. Had +the individual man in the street, the mother at home, and her sons and +daughters, been asked to choose between peace or war, they would never +voluntarily have chosen war. The unsatisfactory element in this Trial is +the absence of the man ... + +THE PRESIDENT: Are you reading now from some part of your document? + +DR. KAUFFMANN: I am reading a few sentences, Mr. President. This is at +Page 7 of the German text. + +THE PRESIDENT: Can you not summarize the argument you are presenting? + +DR. KAUFFMANN: Mr. President, I would appreciate it if I could be told +once more whether the Tribunal does not wish me to throw any light at +all on the ideological background in the interests of an understanding +of these crimes against humanity and peace. If the Tribunal states that +it does not desire me to make any such statements, then of course I +shall follow the wishes of the Tribunal. But such a phenomenon ... + +THE PRESIDENT: Well, Dr. Kauffmann, if you think it is necessary for you +to read this passage you can do so; but, as I have indicated to you, the +Tribunal think it is very remote indeed from any question which they +have to consider. + +DR. KAUFFMANN: Thank you very much. Then I shall skip a few pages and +shall present only 4 or 5 pages, which will be very condensed, on the +subject which I have just mentioned. That begins with the heading, +“Outline of Intellectual Development.” + +The rise of Hitler, and his downfall, unique in its extent and +consequences, may be viewed from any side—from the perspective of the +historical spectacle afforded by the course of German history, the +course of economic forces supposedly governed by irresistible laws, the +sociological divisions of the nation, the peculiarities of race and +character of the German people, or the mistakes committed in the +political sphere by the other brothers and sisters of the family of +nations living in the same house. + +All this certainly completes the picture of the analysis, but it brings +to light only partial knowledge and partial truth. The deepest, and the +fatal, reason for the Hitler phenomenon lies in the metaphysical domain. + +In the final analysis the second World War was unavoidable. Anyone, +however, who regards the world and its phenomena only from the +standpoint of economics may arrive at the conclusion that both world +wars could have been avoided if the resources of the earth had been +reasonably distributed. Economic factors alone can never change the face +of the earth; therefore, the change in the German people’s standard of +living, and the demoralization of the national soul by the Treaty of +Versailles, inflation, serious unemployment, and other factors formed a +foundation for the advent of Hitler. It is possible that catastrophes +may be delayed for years or decades, if certain external living +conditions make the relationship between different nations and peoples +ostensibly happier. At no time, however, can a misguided idea be +destroyed through economic measures alone, and deprived of its power to +injure the individual and the nation, unless mankind can overcome such +ideas and replace them by better ones. + +“In the way in which the name of God is used by the peoples and +nations,” says the famous Donoso Cortes, “lies the solution of the +most-feared problems.” Here we have the explanation of the providential +mission of the separate nations and races, the great changes in history, +the rise and fall of empires, conquests and wars, the different +characteristics of the nations, and even their changing fortunes. + +M. de Menthon has tried to make an intellectual analysis of National +Socialism. He speaks of the “sin against the spirit,” and sees the +deeper causes of this system in estrangement from Christianity. + +I wish to add a few words. Hitler was not a meteor, the fall of which +was incalculable and unpredictable. He was the exponent of an ideology +which was in the last resort atheistic and materialistic. + +There is every reason to reflect that, although National Socialism is +eliminated through the complete defeat of Germany, and although the +world is now free of the German threat as proclaimed by all nations, +there has been no decisive change for the better. No peace has filled +our hearts, no rest has come to any corner of human existence. It is +true that the collapse of a powerful state with all its physical and +spiritual forces will be felt for a long time, just as the sea is +stirred into motion when a rock is thrown into calm water. But something +much more is happening at present in Europe and in the world—something +quite different from the mere ebbing away of such a wave of events. + +To retain the comparison, the waves rise anew from the deep; they are +fed by mysterious forces which constantly emerge anew. They are those +restless ideas, aiming at the disaster of nations, of which I spoke. And +nothing can disprove the truth of my words when I maintain that victor +and vanquished alike live in the midst of a crisis which disturbs the +conscience of individuals and of nations like a monstrous and apparently +inevitable nightmare, and which causes us to look beyond the punishment +of guilty individuals toward those ways and means which can spare +humanity an even greater catastrophe. + +In the _Confessions of a Revolutionary_ the clear-sighted socialist +Proudhon wrote the memorable words: “Every great political problem +contains within itself a theological one.” He coined this phrase one +hundred years ago. It is most timely that the American General +MacArthur, at the signing of the Japanese capitulation, is said to have +repeated the essential meaning of these profound words by saying: “If we +do not create a better and greater system, death will be at our door. +The problem is, fundamentally speaking, a religious one.” + +History is made by changes in religious values. They constitute the +strongest motive power in the cultural progress of humanity. Permit me +to show you in a few bold outlines the intellectual and historical +forebears of National Socialism. + +THE PRESIDENT: Dr. Kauffmann, it is 1 o’clock, and I must say that the +last two pages which you have read seem to me to have absolutely nothing +to do with Crimes against Humanity, or with any case with which we have +got to deal. I suggest to you that the next pages, headed “Renaissance, +Subjectivism, French Revolution, Liberalism, National Socialism” are +equally completely unlikely to have any influence at all upon the minds +of the Tribunal. + +The Tribunal will now adjourn. + + [_The Tribunal recessed until 1400 hours._] + + + + + _Afternoon Session_ + +DR. KAUFFMANN: Mr. President, I am going to leave out the section headed +“Renaissance, Subjectivism, French Revolution, Liberalism, National +Socialism.” The gist of those remarks can be summarized in two or three +sentences and I merely beg you to take cognizance of them. I have +pointed out that the course of all these disastrous movements is the +spiritual attitude which Jacques Maritain described as anthropocentric +humanism. + +[sm type begins]The clamor of the great struggle between the Middle Ages +and modern times has filled the last centuries until this very hour. Its +victims include since 1914, for the first time, the women; since 1939, +for the first time, the children. The apocalyptic battle is in full +progress for the 2,000-year-old meaning of the Occident, the motherland +of the material as well as the personal culture of humanity. Its object +is the steadily growing anthropocentric humanism which makes the human +being the measure of all things, the secularization of religion. It +announces itself in the Renaissance, becomes completely clear in the +enlightenment of the seventeenth and eighteenth centuries and in the +intellectual movements of the nineteenth century. However good the +reasons and motives were, the way over the Renaissance and the schism of +the sixteenth century proved to be wrong. At its very end stands, for +the present, the ideology of National Socialism. In the heads of its +most extreme champions National Socialism culminated in the radical +demand for the fight unto death against Christianity. Therefore this +ideology was in its last analysis a philosophy without love; and because +of this, it extinguished the light of reason in those addicted to it. To +that extent the head himself of this heresy proclaimed a truth.[sm type +ends] + +[sm type begins]Goethe expressed this problem by saying: “World history +is the struggle between belief and unbelief.” And I maintain, based on +the declarations of the greatest minds in all camps of religious faiths, +that the history of the nations, just as previously it was a struggle +for the natural divine right of man, for 2,000 years has been a striving +of human intellect for the Christian soul in man. These precepts are in +fact such that one may not doubt them even for a short moment without +the mind beginning to reel and vacillate helplessly between truth and +error. It is cause for reflection that Hitler rejected the wonderful +characteristic of a truly kind man that we call humility because he had +decided in favor of Machiavelli and Nietzsche and that now the fate of +the Germans is humiliation without precedent. One may also reflect upon +the fact that Hitler denied the virtues of pity and mercy and that now +millions of women and children wail with sorrow, while the law, +seemingly extinct, again assumes enormous proportions, whereas Hitler +surrounded himself with lawlessness. The real and last root of these +calamitous modern movements which threaten state, society, and +Christianity, is rootless liberalism in the meaning of that +anthropocentric humanism, as Maritain calls it. Man and his autonomous +reason become the criterion of everything. The question should impose +itself upon every thinking person, why from the turn of the nineteenth +century until the present such catastrophes of humanity have occurred +which in history, I should almost like to say, find their parallel only +in cosmic catastrophes. Two world wars, with revolutions in their wake, +are never an accidental development but rather a predetermined evolution +of the human race founded on some intellectual-religious error. Coming +from England, rationalism found its way to France and on arrival there +changed its physiognomy. I believe that the paganism of the ancient +times knew hardly anything like Voltaire. No sooner had rationalism +become the state religion of France, when the French Revolution burst +into flames and wrote the idea of the emancipated human rights with +flaming letters into the sky of Europe. In spite of the proclamation of +the human rights, mankind waded through blood as if this was the way to +freedom. Sarcastic and scornful laughter at everything sacred went +through the raving masses. When the French Revolution had put into +practice its state founded on reason, the new institutions did not prove +quite so reasonable. The “brotherhood” was, compared with the glamorous +promises of the rationalists, a bitterly disappointing caricature. Soon +these ideas also conquered Germany; for Germany looked with amazement +and awe toward France in this century. The manifestation of religion +became a religion of pure humanity. The last step was taken by Kant; he +drew the last consequence from the principle of free science. Hegel +abolished the personal God and replaced him by the absolute reason. The +state is everything; it is God, its will is God’s will, in all relations +to it there are no natural rights; it creates religion, law, and +morality by virtue of its own sovereignty. Hitler once more placed the +sovereignty in the people as a race. Hegel’s disciples destroyed the +last vestige of the moral fundaments of society, state, and law. Only +the genius of a man like Leibnitz, in whom the intellect of the German +nation seemed to concentrate for the last time, stood alone in a sea of +the rational ideology. Voltaire ridiculed the German thinker, not only +in France, but also in Berlin. The last stages are connected with the +names of Nietzsche and others. Nietzsche has, as no other modern man, +reasoned modern ideologies out to the end and proclaimed with dauntless +logic whither the present development would inevitably lead. Thus the +road leads from Caligula and Julian Apostate through many a genius, +glorified by the whole world but truly destructive in their effects, +directly to Hitler.[sm type ends] + +[sm type begins]Ancient paganism or modern paganism, which of them is +worse? As Donoso Cortes so wisely puts it, there will be no more hope +for a society which has exchanged the stern cult of Christian quest of +truth for the idolatry of reason. After the sophisms come the +revolutions, and behind the sophist walk the executioners.[sm type ends] + +[sm type begins]When Hitler, returning from the first World War, +decided, as he said, to become a politician, he declared that he had +found the powers which could free Germany with its national and social +elements from its misery. But fundamentally his ideology was only +another step along the well-worn road to complete autonomy of so-called +natural common sense, to which he so often referred. Naturally he had +his teachers. The apotheosis of his own people traces back to Fichte, +the ideal of the master-man to Nietzsche, the relativity of morals and +right to Machiavelli, the cult of race to Darwin. We have witnessed +their practical effect; for this road leads straight into the +concentration camps, to the destruction of other races, to the +persecution of Christians. But the outside enemies of National Socialism +succumbed to the same ominous idea of “natural common sense” by killing +with their bombs millions of noncombatant women and children and +destroying so many dwellings in German villages and cities. The victor, +even in a defensive war, must not try to excuse these events with +“military necessities” in the meaning of the Charter. The cultural +values of this very city in which this Tribunal is sitting, or of +Dresden, Frankfurt, and many other cities, were the cultural property of +the entire Occident. All this, and the terrible misery of the flood of +refugees from the East, and the fate of the prisoners of war, is part of +the theme of the intellectual and cultural analysis of National +Socialism.[sm type ends] + +In the midst of this whole spiritual situation stands the figure of the +Defendant Dr. Kaltenbrunner. The fatherland was already bleeding from a +thousand wounds dealt at its sensitive soul and its gigantic power. Is +this man guilty? He has denied his guilt and yet admitted it. Let us see +what the truth is. + +As I have already emphasized, up to the year 1943 Kaltenbrunner was, by +comparison with the other defendants at this Trial, hardly known in +Germany; at any rate, he had hardly any associations with either the +German public or the high officials of the regime. In those days, when +the military, economic, and political fate of the German people was +already swinging with great velocity toward the abyss, hate and +abhorrence of the executive powers were at their peak, the more so as +the paralyzing sensation of the hopelessness of any resistance against +the terror of the regime began to disappear, for people had by then +finally turned away from the legend of invincibility preached by +propaganda. Up to that point Kaltenbrunner had led a retired life and, +in spite of the Austrian Anschluss, his record was clear of offenses +against international law. I should like to say here that he was an +Austrian—I might almost say, a bona fide Austrian. Suddenly, so to +speak, and not on account of any special aptitude, much less through any +efforts of his own, he was drawn into the net of the greatest +accomplices of the greatest murderer. Not of his own free will; on the +contrary, he repeatedly attempted to resist and to have himself +transferred to the fighting front. + +I can well understand that I might be told that I should, in view of the +sea of blood and tears, refrain from illuminating the physiognomy of +this man’s soul and character. But deep in my heart—and I beg you not +to misunderstand me—while exercising my profession as counsel, even of +such a man, I am moved by the universal thesis of the great Augustine, +which is hardly intelligible to the present generation: “Hate error, but +love man.” Love? Indeed, insofar as it should pervade justice; because +justice without this virtue becomes simple revenge, which the +Prosecution explicitly disavows. Therefore, for the sake of justice, I +must show you that Kaltenbrunner is not the type of man repeatedly +described by the Prosecution, namely, the “little Himmler,” his +“confidant,” the “second Heydrich.” + +I do not believe that he is the cold-hearted being which the witness +Gisevius described in such unfavorable terms, although only from +hearsay. The Defendant Jodl has testified before you that Kaltenbrunner +was not among those of Hitler’s confidants who always gathered around +him after the daily situation conferences in the Führer’s headquarters. +The witness Dr. Mildner, on the basis of direct observation, made the +following statement, which was not shaken by the Prosecution: + + “From my own observation I can confirm this: I know the + Defendant Kaltenbrunner personally. His private life was + irreproachable. In my opinion he was promoted from Higher SS and + Police Leader to Chief of the Security Police and of the SD + because Himmler, after the death of his principal rival Heydrich + in June 1942, did not want any man near him or under him who + might have endangered his own position. The Defendant + Kaltenbrunner was no doubt the least dangerous man for Himmler. + Kaltenbrunner had no ambition to bring his influence to bear + through special deeds and ultimately to push Himmler aside. He + was not hungry for power. It is wrong to call him the ‘little + Himmler.’” + +The witnesses Von Eberstein, Wanneck, and Dr. Hoettl have expressed +themselves in a similar manner. + +And yet this man took over the Reich Security Main Office; indeed, he +took it over to the fullest extent, despite his agreement with Himmler. +I know that today this man is suffering a great deal in thinking of the +catastrophe that has overtaken his people and from the uneasiness of his +conscience; nothing is more understandable than that Dr. Kaltenbrunner, +knowingly, can no longer face the fact that he actually was in charge of +an office under the burden of which the very stones would have cried out +if that had been possible. The personality and character of this man +must be judged differently from the way the Prosecution has judged it. + +For the psychologist the question arises how a man, with, let us say, a +normal citizen’s virtues, could take under his control an office which +became the very symbol of human enslavement in the twentieth century, as +far as Germany is concerned. Yet there may have been two reasons for +taking over this office, nevertheless. One is based on the fact that Dr. +Kaltenbrunner, although closely connected with the political and +cultural interests of his Austrian homeland, supported National +Socialism in its larger sense. For before he turned into the side path +with its secrets, he marched with thousands and hundreds of thousands of +other Germans, who desired nothing else than delivery from the unstable +conditions prevailing at that time, on that wide road into which the +eyes of the entire world had insight. Therefore, for example, he was +without a doubt a disciple of anti-Semitism, however, only in the sense +of the necessity of putting an end to the flooding of the German race +with alien elements; but he condemned just as emphatically the mad crime +of the physical annihilation of the Jewish race, as Dr. Hoettl +definitely assures us. + +Certainly Kaltenbrunner also admired Hitler’s personality as long as it +did not, little by little, give expression to its absolutely +misanthropic and therefore un-German nature. Also, he approved in +principle, as he himself admitted during his interrogation, of measures +which implied more or less severe compulsion, for example, the +organization of labor training camps. For this reason no sensible person +will want to question the fact that he deemed the establishment of +concentration camps fundamentally quite proper, at least as a +provisional measure during the war, as had been the case for a long time +beyond the German borders. _Sine ira et studio._ + +The establishment of concentration camps, or whatever one wishes to call +those places at the mention of which the listener involuntarily is +reminded of the words of Dante, is unfortunately not unknown in many +states. History knows of their existence in South Africa some decades +ago, in Russia, England, and America during this war, for the admission, +among others, of persons who for reasons of conscience do not want to +serve with arms. In Bavaria, in the land in which the Tribunal at +present sits, this sort of camp is also known; also known is the +so-called “automatic arrest” category for certain groups of Germans. +Under the heading “Political Principles,” in Point B-5 of the text of +the mutual declaration of the three leading statesmen on the Potsdam +Conference of 17 July 1945, the statement is contained that, among +others, all persons who are a threat to the occupation or its aims shall +be arrested or interned. + +The apparent necessity for camps of this sort is thereby recognized. I +myself detest those institutions of human slavery; but I state openly +that these institutions also lie on the road which, when followed to the +end, can and does bring suffering to persons holding different views to +those desired by the state. By this the crimes against humanity in the +German concentration camps are not in the least to be minimized. + +As far as Kaltenbrunner is concerned, this man, in view of his character +and attitude as apparent since 1943, according to my conviction and as +can be affirmed by many witnesses, is basically a National Socialist +leader who noted only with repugnance the general trend of the +continually growing wave of terror and enslavement in Germany. For this +reason I deem it important to point to the statement of the witness +Eigruber to the effect that the claim of the Prosecution that +Kaltenbrunner established Mauthausen is wrong. + +The second reason lies in the subject of the two conversations with +Himmler, about which Kaltenbrunner testified. According to that +Kaltenbrunner was prepared to take over the offices of the Domestic and +Foreign Intelligence Service in the Reich Security Main Office with the +promise of Himmler that he would be allowed to expand this service into +a central agency, with the aim of absorbing the Political Intelligence +Service and joining it with the hitherto military one of Admiral +Canaris. No doubt it is true, as the witnesses Wanneck, Dr. Hoettl, Dr. +Mildner, and Ohlendorf, and also the defendant himself have testified, +that Himmler, with Kaltenbrunner’s wish in mind, after the murder of +Heydrich, intervened in the executive realm so that nothing of any +importance took place in any executive field in Germany without Himmler +having the final word and thus issuing the decisive order. + +The witness Wanneck confirmed the subject of those two conversations of +Kaltenbrunner with Himmler in the following words, which I shall quote +because of their importance: + + “When material problems arose Kaltenbrunner frequently remarked + that he had come to an understanding with Himmler to work rather + in the field of the Foreign Political Intelligence Service and + that Himmler himself wanted to exert more influence in executive + functions. To my knowledge Himmler agreed to these adjustments + all the more since he believed that he could depend on + Kaltenbrunner’s political instinct in foreign affairs, as was + apparent from various remarks made by Himmler.” + +Various witnesses have testified that Kaltenbrunner, predominantly and +from inner conviction, did dedicate himself to the Domestic and Foreign +Intelligence Service and more and more approached the influence on +domestic and foreign politics he was hoping for. I call attention again +to Wanneck and Dr. Hoettl, and then also to the Defendants Jodl, +Seyss-Inquart, and Fritzsche. Dr. Hoettl testified: + + “In my opinion Kaltenbrunner never was completely master of the + large Reich Security Main Office and, from lack of interest in + police and executive problems, occupied himself far more with + the Intelligence Service and with exerting influence on politics + as a whole. This he considered his real domain.” + +From the testimony by General Jodl I stress the following sentences: + + “Before Kaltenbrunner took over the Intelligence Service from + Canaris he already sent to me, from time to time, very good + reports from the southeastern territory, through which I first + noticed his experience in the Intelligence Service ... I had the + impression that this man knew his business; I now received + constant reports from Kaltenbrunner, just as earlier from + Canaris; not only the actual reports from agents, but from time + to time he sent to me, I might almost say, a political survey on + the basis of his individual reports from agents. I noticed these + condensed reports on the entire political situation abroad + especially, because they revealed, with a frankness and sobriety + never possible under Canaris, the seriousness of our entire + military position.” + +The results therefore, which I must deduce from the evidence, are as +follows: Kaltenbrunner, on the basis of the separation of the +Intelligence Service from the executive police function in the Reich +Security Main Office as desired by him, actually held a position, the +main interest of which was the Intelligence Service and its continuous +development. I should add that this Intelligence Service covered more +than Europe; it went from the North Cape to Crete and Africa, from +Stalingrad and Leningrad to the Pyrenees. Kaltenbrunner was the most +zealous of all those in Germany who wished to feel the pulse of the +enemy nations. + +That was the lifework of this man as he himself wished it to be for the +duration of the war. Personally he lived in modest circumstances, and it +is the truth when I say that he leaves the stage of political life just +as poor as when he first entered it. The witness Wanneck once quoted a +statement by Kaltenbrunner which is characteristic of him: That he, +Kaltenbrunner, would retire completely from office after the war and +return to the land as a farmer. + +Only with deep regret will the spectator see that under the pressure of +political and military events this man did not observe the limitations +desired by himself. His obedience to Hitler, and therefore also Himmler, +submitted to the apparent necessity, in the years 1943-45, of +guaranteeing the stability of conditions inside Germany through police +compulsion. Thereby he became involved in guilt; for it is clear that he +might count on a milder judgment on his guilt before the conscience of +the world only if he could produce evidence that he actually effected a +sharp separation from the unholy Amt IV of the Secret Police, if he had +in no way participated in the ideas and methods, which I believe, +eventually led to the institution of this whole Trial. I cannot deny +that he did not undertake this separation. Nothing is clearly proved in +this direction; even his own testimony speaks against him. Thus his +statement at the beginning of his examination before the Tribunal may be +explained, which I should like to define as the thesis of his guilt: + + “Question: ‘You realize that a very special accusation has been + brought against you. The Prosecution accuses you of Crimes + against Peace as well as of your role of an intellectual + principal or of a participant in committing Crimes against + Humanity and against the rules of war. Finally the Prosecution + has connected your name with the terrorism of the Gestapo and + with the cruelties in the concentration camps. I now ask you: Do + you assume responsibility for these points of accusation as they + are outlined and familiar to you?’” + +And Kaltenbrunner answers: + + “First of all I should like to state to the Court that I am + fully aware of the serious nature of the accusations brought + against me. I know that the hatred of the world is directed + against me, since I am the only one here to answer to the world + and to the Court, because a Himmler, a Müller, a Pohl are no + longer alive ... I want to state at the very beginning that I + assume responsibility for every wrong which from the time of my + appointment as Chief of the Reich Security Main Office was + committed within the jurisdiction of that office as far as it + occurred under my actual command, and I thus knew or should have + known of these occurrences.” + +Thus the duty of the Defense is automatically delineated by asking the +questions: + +(1) What did Kaltenbrunner do, good and evil, after his appointment as +Chief of the Reich Security Main Office on 1 February 1943? + +(2) To what extent is the statement justified that in the essential +points he did not have sufficient knowledge of all the Crimes against +Humanity and against the rules of war? + +(3) In how far can his guilt be established from the viewpoint that he +should have known about the serious crimes against international law in +which Amt IV of the Reich Security Main Office (Secret State Police) was +directly or indirectly involved? + +What has Kaltenbrunner done? In this connection I am passing over the +accusation brought against him by the Prosecution for his participation +in the events surrounding the occupation of Austria and Czechoslovakia, +for no matter with what energy he followed his goal of seeing his +Austrian homeland incorporated into the German Reich and used the SS +forces under his command for the realization of this end, this aim +cannot have been a criminal one according to the world’s conscience. +Just as little could one reach a verdict of criminal guilt because of +the forcible means employed at that time to accomplish the annexation of +Austria, which was the outcome of history and desired by millions. +Kaltenbrunner was still much too insignificant a man for that. Economic +distress—Anschluss movement—National Socialism: That was the path +followed by the majority of the Austrian people, not the National +Socialist ideology; for Hitler himself was, from the standpoint of +Austrianism, a spiritual and political renegade. Yet the Austrian +Anschluss movement was a people’s movement before National Socialism had +reached any importance in Germany. Austria wanted to protect herself +against the Versailles and St. Germain ruling, which forbade the +Anschluss, by holding a plebiscite in each province. After 90 percent +had voted in Tyrol and Salzburg, the victorious powers threatened to +discontinue the shipment of food supplies. Hitler’s seizure of power +paralyzed the desire for Anschluss among those not sympathizing with the +Party, but the distress in Austria became still more acute and isolated +the Dollfuss-Schuschnigg regime. Incorporation into the economic sphere +of Greater Germany, where the removal of mass unemployment seemed to be +the source of hope, appeared to the greatly distressed Austrian people +as the only way out. The wave of enthusiasm which on 12 and 13 March +1938 went through all Austria was real. To try to deny this today would +be to falsify history. The Anschluss, not the Dollfuss-Schuschnigg +Government, was based on democracy. + +Just as little can one, I believe, according to the reasons mentioned +above, reach a verdict of guilt for Kaltenbrunner because of his alleged +activity in the question of Czechoslovakia. In my opinion, the question +of guilt and expiation arises only for the time after 1 February 1943. +The indignation of the German people over one of the most infamous +terroristic measures, the imposition of protective custody, had already +become immense before this date. Is it correct to say that Kaltenbrunner +himself, of whom many orders for protective custody bearing his +signature are in evidence before the Court, inwardly abhorred this type +of suppression of human liberties? + +May I refer to just a few sentences from his interrogations: + + “Question: ‘Did you know that protective custody was at all + permissible and was used frequently?’ + + “Answer: ‘As I have stated, I discussed the idea of “protective + custody” with Himmler already in 1942. But I believe that + already before this time I had corresponded quite extensively on + this subject with him, as well as once also with Thierack. I + consider protective custody as applied in Germany only in a + smaller number of cases to be a necessity of state, or better, a + measure such as is justified by war. For the rest I often voiced + my opinion, well founded in legal history, against this + conception and against the application of protective custody in + principle. I had several discussions about it with Himmler and + with Hitler also. I publicly took my stand against it at a + meeting of public prosecutors, I think in 1944, because I have + always been of the opinion that a man’s freedom is one of his + highest possessions and only the lawful sentence of a regular + court of justice founded on the Constitution may limit or take + away this freedom.’” + +Here the same man expresses the right principles, the observance of +which would have spared the German people and the world untold +suffering, and the nonobservance of which constitutes the guilt of this +man who in spite of his right views, suited his actions to the so-called +necessity of state. He thereby, against his own will and knowledge, +became subject to the principle of hatred, which sooner or later will +always shake or shatter the foundations of the strongest state. “Right +is what benefits the people,” Hitler had proclaimed. I well know that +Kaltenbrunner today deeply regrets having adhered too long to that false +maxim without putting up sufficient resistance ... + +Although the Prosecution has not been able to produce even one single +original signature of Kaltenbrunner in connection with orders for +protective custody, and I do not think it incredible when Kaltenbrunner +deposes that he himself never put into effect such an order for +protective custody by his signature, nevertheless, in view of the tragic +results due to so many of these orders, I do not need to say even one +word as to whether he is entirely blameless or is much less to blame +because these orders had perhaps been signed without his knowledge; +although of course the question arises immediately how this was possible +in an office however large. Be that as it may; in affairs of such depth +and such tragic outcome one’s feelings are inclined to make hardly any +distinction between knowledge and ignorance due to negligence, because +one wants to hold everyone occupying a post in an office responsible for +what happens there. This recognition is also the meaning of +Kaltenbrunner’s statement, cited above, regarding his fundamental +responsibility. Where the happiness and fate of living men are involved, +it is impossible to retreat under the pretext of ignorance in order to +avoid punishment; at best mitigation of sentence can be asked for. The +defendant knows this too. Orders for protective custody were the ominous +harbingers of the concentration camp. And I am not revealing a secret +when I say that the responsibility for issuing orders for protective +custody includes the beginning of responsibility for the fate of those +held in the concentration camps. I could never admit that Dr. +Kaltenbrunner may have known of the excesses suffered by the thousands +who languished in the camps; for, as soon as the gates of the +concentration camps were closed, there began the exclusive influence of +that other office, the frequently mentioned Central Office for Economy +and Administration. Instead of referring to many statements of witnesses +regarding this point, I refer only to the one of the witness Dr. Hoettl +who, when asked about subordination in rank replied: + + “The concentration camps were exclusively under the command of + the SS Central Office for Economy and Administration, hence not + under the Reich Security Main Office, and therefore not under + Kaltenbrunner. In this sphere he had no authority of command and + no competency.” + +Other witnesses have said that of necessity Kaltenbrunner should have +had knowledge of the sad conditions in the concentration camps, but +there is no doubt that the commandants of the concentration camps +themselves deliberately concealed criminal excesses of the guards even +from their superiors. It is furthermore a fact that the conditions found +by the Allies upon their arrival were almost exclusively the results of +the catastrophic military and economic situation during the last weeks +of the war, which the world mistakenly identified with general +conditions in former times as well. The above statement is fully +verified by the statements of the camp commandant of Auschwitz, Hoess, +who because of his later activity in the Concentration Camp Department +of the Central Office for Economy and Administration, had an accurate +over-all picture. Hoess has no ulterior motive whatsoever to give false +testimony. A person like him, who sent millions of men to their deaths, +no longer comes under the authority of human judges and considerations. +Hoess stated: + + “The so-called ill-treatment and tortures in the concentration + camps were not, as assumed, a policy. They were rather excesses + of individual leaders, subleaders, and men who laid violent + hands upon the inmates.” + +These people themselves were, according to the statement of Hoess, taken +to task for that. I believe I need not go into any more details of how, +according to various witnesses, visitors to concentration camps were +impressed and surprised by the good condition, cleanliness, and order in +the camps; and therefore no suspicion was aroused as to special +sufferings of the inmates. But it would be in the worst taste if I +contested the fact that a chief of the Intelligence Service, if only on +the basis of foreign news of atrocities, should not have felt a +responsibility, in the interest of humanity, to clear up any doubts +arising in that sphere. + +The lack of knowledge seems to be confirmed by the statement of Dr. +Meyer of the International Red Cross, since the permission to allow the +International Red Cross to visit the Jewish Camp at Theresienstadt and +to allow food and medical supplies to be sent in, coming from +Kaltenbrunner, seems to be proof of the bad conditions in the camps +during the last months of the war; nobody, however, would allow neutral +or foreign observers to have insight into the camps if it had been known +that crimes against humanity were, so to speak, scheduled daily in the +camps, as is asserted by the Prosecution. + +In no case, therefore, do I come to the conclusion that Kaltenbrunner +had full knowledge of the so-called “conditions” in the concentration +camps, yet I do conclude that it was his duty to investigate the fate of +those who were imprisoned. Kaltenbrunner might have found out then that +a considerable number of the inmates were sent to the camps because they +were criminals and that a much smaller portion was there because of +their political or ideological viewpoints or because of their race but +that he would then have found out about those primitive offenses against +humanity, about those excesses and all the distress of these +people—that I contest, in agreement with Kaltenbrunner. + +The way to arrive at the truth was immensely complicated in Germany, and +even the Chief of the Reich Security Main Office found nearly +insurmountable obstacles in the hierarchy of jurisdiction and authority +of other offices and persons. The alleviation of the sad lot of the +internees was, after 1943, a problem which could have been solved only +through the dissolution of such camps. A Germany of the last 12 years +without any concentration camps would, however, have been a utopia. On +the whole, Kaltenbrunner was but a small cog in this machinery. + +Earlier I spoke about the orders for protective custody and of their +effect. Dr. Kaltenbrunner has affirmed the necessity for work education +camps, owing to—as stated by him during his examination—the conditions +then prevailing in the Reich, to the shortcomings of the labor market, +and to other reasons. And if I am not mistaken, no convincing proof was +submitted of ill-treatment and cruelties in such camps. The reason may +well lie in the fact that these camps were in some respects only related +to, but not on equal footing with, concentration camps. + +With all available means of evidence, Kaltenbrunner has opposed the +accusation of having confirmed orders of execution with his signature. +The witnesses Hoess and Zutter stated that they saw such orders in +isolated cases. The Prosecution, however, does not seem to me to have +proved that any such orders were issued without judicial sentence or +without reasons justifying death, with the exception of a particularly +serious case reported from hearsay by the witness Zutter, adjutant of +the camp commandant of Mauthausen. According to him, a teletype signed +by Kaltenbrunner is said to have authorized the execution of +parachutists in the spring of 1945. An original signature by +Kaltenbrunner is entirely lacking. I add that Kaltenbrunner has +contested having any knowledge or information about this matter. I think +I may safely claim that he did not sign any such orders concerning life +and death, because he was not authorized to do so. Dr. Hoettl as a +witness stated: + + “No, Kaltenbrunner did not issue such orders and could not, in + my opinion, give such orders”—for killing Jews—“on his own + initiative.” + +And Wanneck explicitly asserted the following: + + “It is known to me that Himmler personally decided over life and + death and other punishment of inmates of concentration camps.” + +Thus the exclusive authority of Himmler in this sad sphere may be +considered proved. I am not seriously disposed to deny the guilt of +Kaltenbrunner completely on this point. If such orders were carried out +against members of foreign powers, for example, based on the so-called +“Commando Order” of Hitler of 18 October 1942, then there arises the +question of the responsibility of that person whose signature was +affixed to these orders, because misuse of his name by subordinates was +possible. It is certain that Kaltenbrunner never exerted the least +influence in originating the “Commando Order.” It can, however, hardly +be doubted that this decree constituted a violation of international +law. The development of the second World War into a total war inevitably +created an abundance of new stratagems. Insofar as genuine soldiers were +employed in their execution, even a motive of bitterness, humanly quite +understandable—and I am now speaking about the conduct of the Commando +troops concerned in violation of the laws of warfare and other +things—could not justify the order. Fortunately but very few people +fell victims to this order of Hitler, as the Defendant Jodl has +testified. + +Perhaps one might ask me whether it is my duty, or whether I am +permitted, to reiterate such points of incrimination as I have just +done, since this seems to be the task of the Prosecution. To this I +reply: If the Defense is so liberal as to admit the negative side of a +personality, it surely is apt to be heard more readily when it +approaches the Tribunal with the request to appraise the positive side +in its full significance. However, is there a positive side at all in +the case before us? I believe that I may answer that question in the +affirmative. I already pointed out several facts which are connected +with the time of the assumption of office by Kaltenbrunner. During his +short 2 years of activity this man has made himself a bearer of +decidedly fortunate and humane ideas. I wish to remind you of his +attitude toward the lynch order of Hitler with respect to enemy aviators +who were shot down. The witness, General of the Air Force Koller, +described the decent conduct of Kaltenbrunner, which led to a total +sabotage of this order. After first describing the contents of Hitler’s +order and Hitler’s threat, pronounced during the situation conference at +that time, namely, that any saboteur of this order should himself be +shot, Koller goes on to repeat the statements of Kaltenbrunner. Permit +me to quote a few sentences of the deposition of Koller. Koller says +that Kaltenbrunner said: + + “The tasks of the SD are always given a wrong interpretation. + Such matters are not the concern of the SD. Moreover, no German + soldier will do what the Führer commands. He does not kill + prisoners; and if a few fanatic partisans of Herr Bormann try to + do so, the German soldier will interfere ... Furthermore, I + myself, too, will do nothing in this matter ...” + +Koller and Kaltenbrunner, therefore, were fully agreed on that matter. +This positive action of Kaltenbrunner, important for the judgment of the +actual nature of his personality, does not stand alone. Dr. Hoettl +confirmed the fact that, in questions of the future fate of Germany, +Kaltenbrunner went, if not beyond, at least up to the borderline of high +treason. This witness, for example, confirms that Kaltenbrunner in March +1944 caused Hitler to moderate the plans concerning the Hungarian +question and succeeded in preventing the entry of Romanian units into +Hungary, that with his support also the planned Hungarian National +Socialist Government was not set up for a long time. + +Dr. Hoettl then says literally: + + “Since 1943 I told Kaltenbrunner that Germany must attempt to + end the war by a peace at any price. I informed him of my + connections with an American authority in Lisbon. I also + informed him that I had taken up new contacts with an American + authority abroad by way of the Austrian resistance movement. He + declared that he was prepared to go to Switzerland with me and + there to take up personally negotiations with the American + representative, in order to prevent further useless bloodshed.” + +The depositions of the witness Dr. Neubacher run along the same lines. +But over and beyond that, this witness testified to a significant humane +deed of Kaltenbrunner. Upon being questioned whether Kaltenbrunner had +assisted the witness in moderating, as much as possible, the terror +policies in Serbia, Dr. Neubacher answered; and I quote: + + “Yes, in this field I owe much to the assistance of + Kaltenbrunner. The German Police agencies in Serbia knew from me + and from Kaltenbrunner that in his capacity as Chief of the + Foreign Intelligence Service he uncompromisingly supported my + policies in the southeastern territory. Thereby I succeeded in + exerting influence on the police offices. Kaltenbrunner’s + assistance was of value in my efforts to abolish the then + prevailing system of collective responsibility and reprisals + with the aid of intelligence officers.” + +I further mention the relief work of the Geneva Red Cross, which is due +to the initiative of Kaltenbrunner. The activity of the defendant with +respect to this was portrayed by the witnesses Professor Burckhardt, Dr. +Bachmann, and Dr. Meyer. As a consequence many thousands were able to +exchange their captivity for liberty. + +I should like to draw your attention to a few words stated by the +Defendant Seyss-Inquart on two points. He mentioned that Kaltenbrunner +advocated the complete autonomy of the Polish state as well as the +reintroduction of the independence of both Christian Churches, and I +might add that Dr. Hoettl testified that Kaltenbrunner defended his +activity very energetically and met with most bitter resistance by +Bormann. Kaltenbrunner tried to realize his humane intentions not only +in this field. Therefore, it seems to me to be of significance also to +point out his efforts to make the Austrian Gauleiter understand that any +resistance against the troops of the Western powers would be senseless +and that in view of this, irresponsible orders for resistance were not +to be issued. This was confirmed by the witness Wanneck. The Prosecution +held Kaltenbrunner responsible for the evacuation and planned +destruction of certain concentration camps. I believe this evidence may +not only be considered as inconclusive, but that the contrary has in +fact been proved. Upon the question, addressed to Dr. Hoettl, whether +Kaltenbrunner had instructed the commandant of the concentration camp +Mauthausen to surrender the camp to the advancing troops, Dr. Hoettl +answered: + + “It is correct that Kaltenbrunner issued such an order. He + dictated it in my presence for transmission to the camp + commandant.” + +As a supplement Kaltenbrunner, during his personal examination, declared +very logically: If the camp of Mauthausen, filled with criminals, could +not be evacuated by his orders, an order to evacuate Dachau would have +been devoid of any basis by reason of its—compared with +Mauthausen—harmless inmates. According to the testimony of Freiherr Von +Eberstein, the destruction of the concentration camp Dachau with its two +secondary camps was the goal of the then Gauleiter of Munich, Giesler. + +Finally the witness Wanneck confirmed the fact that such an order of +Kaltenbrunner had not become known to him; that, however, due to his +position with Kaltenbrunner, he would have known if such an order had +been issued by the latter or even the issuance of such an order +considered. Who actually issued these orders can no longer be +established with certainty. The witness Hoess, in his examination, +mentioned an order of evacuation by Himmler, as well as one directly by +Hitler. + +In this connection it seems appropriate to me to refer to +Kaltenbrunner’s participation in the sad case of Sagan as charged by the +Prosecution. With reference to Kaltenbrunner’s statement, confirmed by +the examination of the witness Wielen, it appears to me to be a proven +fact that this matter came to Kaltenbrunner’s attention for the first +time only several weeks later, after the conclusion of this tragedy. + +It also appears doubtful to me whether the so-called Einsatzgruppen, +introduced on the basis of Hitler’s “Commissar Order” of 1941, were +still in existence and functioning after the appointment of +Kaltenbrunner. Some facts speak for it, others against it. Kaltenbrunner +denied the existence of these groups during his term as Chief of the +Reich Security Main Office. I do not want to lose myself in details, but +I should like to draw the attention of the Tribunal to these doubts. The +same applies, for example, to the so-called “Bullet Decree.” Document +1650-PS confirms that it was not Kaltenbrunner but Müller, the infamous +Chief of Amt IV, who issued the instructions involved, while Document +3844-PS mentions personal signatures of the defendant. It appears to me +that the first document deserves preference. May I finally draw your +attention to those documents which are of less value as evidence because +they are based upon indirect observation. I believe that the Tribunal +possesses sufficient experience in evaluating evidence so that I need +not argue this any further. + +I have thus far openly conceded the negative, so that I may be the more +justified in emphasizing the positive in Kaltenbrunner’s personality. +How far, however, shall I be justified in stating that Kaltenbrunner had +actually insufficient knowledge of many War Crimes and Crimes against +Humanity which were committed with some kind of participation of Amt IV +in the course of the last 2 years of the war? Would such a defense offer +the prospect of essentially exculpating the Chief of the Reich Security +Main Office? + +Dr. Kaltenbrunner admitted during his examination that it was only very +late, in some cases as late as 1944 or 1945, that he obtained knowledge +of orders, instructions, and directives, despite the fact that they +originated much earlier—in some instances several years before he took +office. And here I add—and I wish to emphasize this particularly at +this point—that these orders, which are contrary to international +ethics and humanity, all go back to a time during which Dr. +Kaltenbrunner was still in Austria. + +I will not at this moment try to prove in detail all these statements of +Kaltenbrunner’s. The Prosecution is interested exclusively in whether +such orders, decrees, directives, and so forth, were also executed +during the period of time in which the defendant was in office as Chief +of the Reich Security Main Office. It is also often very difficult for a +defense counsel to follow a defendant along the secret channels of his +knowledge or his ignorance. Perhaps the defense counsel also sometimes +lacks the necessary distance for a free and just judgment, in view of +the hecatombs of victims spread out across a whole continent, and he is +unfair to his client. Thus he leaves the nature of the defendant’s +character to the later judgment of history, for even the defense counsel +is not infallible when it comes to drawing a picture of the soul of his +own client. + +During his examination before the Tribunal Kaltenbrunner once explained +the difficult position he was in when he took over his office on 1 +February 1943, and I hope that nobody will misjudge this situation. The +Reich was still fighting, and even in 1943 was still dangerous for any +adversary colliding with it. But it was already a fight for a goal +obviously remote and out of reach. Whoever tries to hold back the spokes +of the wheels on a vehicle rolling into an abyss at top speed will +perish all too easily. Coupled with these conditions, from which there +was no way of escaping, there was an uncreative officiousness, caused by +nervous insecurity, in all areas of private and public life. +Kaltenbrunner said with regard to this situation: + + “I beg you to put yourself into my situation. I came to Berlin + in the beginning of February 1943. I began my work in May 1943, + except for a few complimentary calls. In the fourth year of the + war the orders and decrees of the Reich also in the execution + sector had piled up by the thousands on the tables and in the + filing cabinets of the civil service. It was quite impossible + for a human being to read through all that, even in the course + of a year. Even if I had felt it to be my duty, I could never + possibly have made myself acquainted with all these orders.” + +In connection with this I remind you respectfully that, according to the +evidence given by the witness Dr. Hoettl and others, the Reich Security +Main Office in Berlin had 3,000 employees of all categories when +Kaltenbrunner was in office and that according to the statement of the +same witness Kaltenbrunner never controlled this office completely. + +Nobody will be able to deny that the question is justified whether it +was not Kaltenbrunner’s duty to have himself informed in the shortest +possible time at least about the most essential proceedings in all the +departments of the Reich Security Main Office and whether he would not +then very soon have obtained knowledge of, for example, Himmler’s and +Eichmann’s anti-Jewish operation and many other serious terrorist +measures. I may remind you that Kaltenbrunner declared repeatedly and +emphatically, in answering my questions before this Tribunal, that he +protested regularly every time he heard of such occurrences, addressing +himself to Himmler and even to Hitler, but that he had but little +success, and this only after a long while. The defendant, for example, +traces back the cessation of the extermination of Jews, by an order of +Hitler in October 1944, to his personal initiative. However difficult it +may be to judge whether the power and influence of a single person would +have been sufficient to bring about the suspension of a program of the +extermination of a race, already in its final phase, I believe I may say +without being open to correction that many tens of thousands of Jews owe +it to this man that they escaped the hell of Auschwitz and can still see +the light of the sun. From the statements of Dr. Bachmann and Dr. Meyer +of the International Red Cross it appears that Kaltenbrunner asked the +International Red Cross to organize relief shipments to a large Jewish +nonpolitical camp at Unskirchen near Wels. + +Wanneck has characterized Kaltenbrunner’s attitude toward the question +of Himmler’s Jewish policy as follows. He says: + + “In the daily haste of our joint labors and discussions on + foreign policy, we no longer dwelt upon the problem of Jewish + policy. At the time Kaltenbrunner came into office this question + was already so far advanced that Kaltenbrunner could not have + had any more influence on it. If Kaltenbrunner expressed himself + at all on the subject, it was to the effect that mistakes had + been made here that could never be made good.” + +This witness then finally confirmed the fact that this operation was +conducted independently through a direct channel of command from Himmler +to Eichmann and said that the position of Eichmann, which already had +been a dominating one when Heydrich was still alive, had increased +steadily, so that eventually he had acted completely independently in +the entire Jewish sphere. + +And here I add that, according to the statement of Hoess, the only man +left alive who is familiar with this question, it is established that +only about 200 or 300 people knew of that dreadful order of Himmler’s +which was given during a conference which lasted for 10 or 15 minutes, +on the basis of which more than four million people were exterminated. +And I add that a large nation of 80 million had learned little or +probably nothing about these things which happened in the Southeast of +the Reich during the war. Professor Burckhardt states that +Kaltenbrunner, when discussing the Jewish question, declared: + + “It is the greatest nonsense; all the Jews should be released, + that is my personal opinion.” + +But in spite of all this, the fundamental question is raised for the +problem of guilt: May a high official and the director of an influential +office, whose subordinates in a far-reaching hierarchy continually +commit crimes against humanity and against the rules of international +law, assume such an office at all or remain in such an office, although +he condemns these crimes? Or is it perhaps a different case if this man +has the intention of doing all that is humanly possible to break the +chain of crimes and thereby finally to become a benefactor of humanity? +The last question is generally to be answered in the affirmative. It is +to be appraised solely from the standpoint of the highest ethical +principles. + +My further thought in this connection is the following: He who invokes +such a philanthropic intention is free of guilt if from the first day of +his taking over such an office he refuses to take any active part in the +actual commitment of the crime, and, beyond this, avails himself of +every conceivable possibility, even seeks it out, to achieve the +elimination of evil orders and their execution through his never-ending +resistance and every form of human cunning. + +The defendant himself has also sensed and clearly recognized all these +things. On account of the importance of the question I should like to +refer to his interrogation: + + “Question: ‘I ask you whether there was a possibility that you + might have brought about a change after having gradually learned + the conditions in the Secret State Police and in the + concentration camps, _et cetera_. If this possibility existed, + will you then say that an alleviation, that is, an improvement, + was brought about in the conditions in these fields due to your + remaining in office?’” + +Kaltenbrunner says: + + “I repeatedly applied for service at the front. But the most + burning question which I had to decide for myself was whether + the conditions would be thereby improved, alleviated, or + changed. Or was it my duty to do everything possible in this + position to change all the conditions that have been so severely + criticized here? Since my repeated demands to be sent to the + front were refused, all I could do was to make a personal + attempt to change a system, the ideological and legal + foundations of which I could no longer change, as has been + illustrated by all the orders presented here from the period + before I was in office; I could only try to moderate these + methods in order to help eliminate them for good. + + “Question: ‘And so, did you consider it consistent with your + conscience to remain in spite of this?’ + + “Answer: ‘In view of the possibility of constantly using my + influence on Hitler, Himmler, and other people, I could not in + my opinion reconcile it with my conscience to give up this + position. I considered it my duty to take a personal stand + against injustice.’” + +As you see, the defendant refers to his conscience and you have to +decide whether this conscience, taking into consideration duty toward +one’s own country but also toward the community of mankind, has failed +or not. The duty which I have just mentioned, to resist the orders of +evil, exists in itself for every human being, regardless of his +position. This duty is expressly affirmed by Kaltenbrunner also. He who +holds a state office must in the first place be able to prove that he +contributed toward abolishing the gigantic injustice which occurred in +Europe as soon as he learned of it, if he does not want to become +guilty. Has Dr. Kaltenbrunner presented sufficient proofs? The answer to +this question I leave to your judgment. But one thing I should like to +express as my opinion: This man was no conspirator; rather was he +exclusively a person acting under orders and under compulsion. Himmler’s +order was, despite all previous agreement, for him to take over the +Reich Security Main Office. Is it right that an order should change the +fundamental aspect of the problem? This question is of the highest +importance. According to the Charter of this Tribunal one cannot plead +higher orders for the purposes of avoiding punishment. The reasons given +for this by the American chief prosecutor proceeded from the presumed +knowledge of the crimes or their background in the minds of the higher +leaders which, therefore, precluded them from pleading the existence of +orders. Like a red thread the fact runs through this Trial that hardly +one high official, in whatever position of public life he may have been, +was put into office without the order of the highest representative of +official authority; for in the last 3 years of the war the already +clearly discernible inevitable destiny of the Reich meant for the holder +of a high office the renunciation of that part of life which many people +say makes life worth living. For the duration of the war, orders tied +the office holder to his position. Also there is no doubt that he who +refused to obey an order, especially in the last years of the war, +risked his own death, and possibly the extinction of his family. + +From whatever side we approach the problem of orders in Germany after +1933, the invocation of the above-mentioned state of duress ought not to +be denied to a defendant, because that principle of duress which exists +in the German criminal code, as no doubt it does in the criminal codes +of all civilized nations, is based on that freedom of the individual +being which is necessary for the affirmation of any guilt. + +If the perpetrator is no longer free to act, because another person +deprives him of this liberty through direct immediate danger to his +life, then, on principle, he is not guilty. I do not want at this +instant to examine whether in the German world of reality of the last +years such a direct immediate danger for one’s own life always existed; +but an encroachment upon the freedom of the man receiving orders did +exist to a smaller or larger extent without any doubt. It seems certain +to me that Himmler would have interpreted a refusal of Kaltenbrunner to +take over the direction of the Reich Security Main Office as sabotage +and would, as a necessary conclusion, have eliminated him. + +Hitler, according to the revelations at this Trial, was one of the +greatest lawbreakers that world history has ever known. Many even admit +it to be a duty to kill such a monster, so as to guarantee to millions +of human beings the right of freedom and life. At this Trial the most +varied points of view with regard to the “Putsch,” especially the +killing of the tyrant, have been proffered by witnesses and defendants. +I cannot recognize the duty, but the right is certainly not contestable. +If the oppression of human freedom occurs by means of a clearly unjust +order based on misanthropy, the scales in the now ensuing conflict +between obedience and freedom of conscience will be weighted on the side +of the latter. Even the so-called oath of allegiance could not justify a +different point of view because, as everybody feels, the obligation to +allegiance presupposes duties of both partners, so that he who treads +under foot the obligation to respect human conscience in the person of +his subordinates loses at the same moment the right to expect obedience. +The tortured conscience is freed and breaks the ties which the oath had +created. Perhaps some people will not agree with my point of view on +this problem and will point out the necessity of orderliness in the +community, and the salutary effects of obedience in the very interest of +this orderly state, or they will point to the wisdom of those in command +and at the impossibility of understanding and evaluating all such orders +as well as the person in command does; they will point to patriotism and +other aspects. And though all that may be correct, there yet remains an +absolute obligation to resist an order the purport of which, clearly +recognizable to a subordinate, amounts to the materialization of evil +and obviously violates the healthy sentiments which aim at humanity and +peace among people and individuals. The phrase “in a life-and-death +struggle of a nation there can be no legality” is an untrue thesis not +thought out to the end, no matter who expresses it. Even immediate +danger to the life of the person receiving the order could not induce me +to change my conviction. Dr. Kaltenbrunner would not deny that he who +stands at the head of an office of great importance to the community is +obliged to sacrifice his life under the above-mentioned conditions. + +Whereas even direct and imminent danger to his own life and that of his +family cannot excuse him, it does diminish his guilt, and Kaltenbrunner +only means to point to this moral and legal evaluation of his position. +Thus he emphasizes a fact, historically proven, which was one of the +deeper reasons for the collapse of the Reich; for no living man can +bring to a community liberty, peace, and welfare, who himself bears his +chains reluctantly and has lost that freedom which is the decisive +characteristic of all human beings. + +I believe Kaltenbrunner would like to be reborn, and I know that he +would fight for that freedom with his life’s blood. Kaltenbrunner is +guilty; but he is less guilty than he appears in the eyes of the +Prosecution. As the last representative of an ominous power of the +darkest and most anguish-laden period of the Reich’s history he will +await your judgment, and yet he was a man whom one could not meet +without a feeling of tragedy. + +THE PRESIDENT: The Tribunal will adjourn now. + + [_A recess was taken._] + +THE PRESIDENT: Yes, Dr. Thoma. + +DR. ALFRED THOMA (Counsel for the Defendant Rosenberg): May it please +the Tribunal, Mr. President, the documentary film which was shown in +this room and which was to illustrate the “Rise and Fall of National +Socialism,” begins with a speech delivered by Rosenberg concerning the +development of the Party up to the assumption of power. He also +describes the Munich insurrection and says that on the morning of 9 +November 1923 he saw police cars with machine-guns assembling in the +Ludwigstrasse in Munich and he knew what the march to the Feldherrnhalle +implied. Nevertheless he marched in the first lines. Today also, my +client takes the same position in face of the Indictment formulated by +the prosecutors of the United Nations. He does not want to be pictured +as though nobody paid any attention to his books, his speeches, and his +publications. Even today he does not want to appear as a person other +than what he was once before, a fighter for Germany’s strong position in +the world, namely, a German Reich in which national freedom should be +linked to social justice. + +Rosenberg is a German, born in the Baltic provinces, who learned to +speak Russian as a young boy, passed his examination in Moscow after the +Technical College in Riga moved to Moscow during the first World War, +took an interest in Russian literature and art, had Russian friends, and +was puzzled by the fact that the Russian nation, defined by Dostoievsky +as “the nation with God in its heart,” was overcome by the spirit of +materialistic Marxism. He considered it inconceivable and unjust that +the right of self-determination had indeed often been promised but never +voluntarily granted to many nations of Eastern Europe which had been +conquered by Czarism even in the nineteenth century. + +Rosenberg became convinced that the Bolshevik revolution was not +directed against certain temporary political phenomena only but against +the whole national tradition, against the religious faith, against the +old rural foundations of the Eastern European nations, and generally +against the idea of personal property. At the end of 1918 he came to +Germany and saw the danger of a Bolshevistic revolution in Germany too; +he saw the whole spiritual and material civilization of the Occident +endangered and believed to have found his lifework in the struggle +against this danger as a follower of Hitler. + +It was a political struggle against fanatical and well-organized +opponents who had at their disposal international resources and +international backing and who acted according to the principle: “Strike +the Fascists wherever you can.” But as little as one can deduce from +that slogan that the Soviets entertained intentions of military +aggression against Fascist Italy, just as little can one say that the +struggle of the National Socialists against Bolshevism meant a +preparation for a war of aggression against the U.S.S.R. + +To the Defendant Rosenberg a military conflict with the Soviet Union, +especially a war of aggression against the latter, seemed as likely or +as unlikely as to any German or foreign politician who had read the book +_Mein Kampf_. It is not correct to maintain that he was initiated in any +way into plans of aggression against the Soviet Union; on the contrary, +he publicly advocated proper relations with Moscow (Document +Rosenberg-7b, Page 147). Rosenberg never spoke in favor of military +intervention against the Soviet Union. However, he did fear the entry of +the Red Army into the border states and then into Germany. + +When, in August 1939, Rosenberg learned about the conclusion of the +Non-Aggression Pact between the Reich and the Soviet Union—he was as +little informed about the preliminary discussions as he was about the +other foreign political measures taken by the Führer—he might have gone +to see the Führer and protested against it. He did not do it, and he did +not object to it with a single word, which the witness Göring confirmed +as being a statement of Hitler’s. + +In the witness box Rosenberg himself described (session of 16 April +1946) how he was then suddenly called to Hitler, at the beginning of +April 1941, who told him that he considered a military clash with the +Soviet Union inevitable. Hitler offered two reasons for it: + +(1) The military occupation of Romanian territory, namely, Bessarabia +and North Bukovina. + +(2) The tremendous increase of the Red Army, along the line of +demarcation and on Soviet Russian territory in general, which had been +going on for a long time. + +These facts were so striking, he said, that he had already issued the +appropriate military and other orders, and he said that he would appoint +Rosenberg in some form as a political adviser. As he further stated in +the witness box, he thus found himself confronted with an accomplished +fact, and the very attempt to discuss it was cut short by the Führer +with the remark that the orders had been issued and that hardly anything +could be changed in this matter. Thereupon Rosenberg called some of his +closest collaborators together, because he did not know whether the +military events would take place very soon or later on; and he made, or +had made, some plans concerning the treatment of political problems. On +20 April 1941 Rosenberg received from Hitler a preliminary order to +establish a central office to deal with questions concerning the East +and to contact the competent highest Reich authorities with respect to +these matters (Document Number 865-PS, USA-143). + +If this statement made by Rosenberg is not in itself sufficient to +refute the assertion made by the Prosecution, according to which +Rosenberg is “personally responsible for the planning and execution of +the war of aggression against Russia” (Brudno, in the session of 9 +January 1946) and was aware of the “aggressive predatory character of +the imminent war” (Rudenko, in the session of 17 April 1946)—if, above +all, it is not accepted that Rosenberg was convinced of an imminent +aggressive war to be waged by the Soviet Union against Germany, then I +would like to bring up four more points in order to prove the +correctness of the statements made by the defendant. + +(1) Rosenberg was not called to the well-known conference at the Reich +Chancellery on 5 November 1937 (“Hossbach Document,” Document Number +386-PS, USA-25), when Hitler disclosed for the first time his intentions +of waging war. This was at the time when Rosenberg still had political +influence, or at least seemed to have it. If ever, he should have played +the part of the intimate political “inspirator” then. + +(2) Lammers, as a witness, stated before this Tribunal that Hitler made +all important decisions quite alone; thus also the decision concerning +war against Russia. + +(3) To my question about Rosenberg’s influence on Hitler’s decisions +concerning foreign policy, Göring replied before this Tribunal on 16 +March 1946: + + “I think that after the accession to power, the Führer did not + consult the Party Office of Foreign Affairs a single time about + questions concerning foreign policy and that it was created only + as a center for dealing with certain questions concerning + foreign policy which came up within the Party. As far as I know, + Rosenberg was certainly not consulted about political decisions + after the accession to power.” + +This was also confirmed by the witness Von Neurath on 26 June 1946 in +this courtroom. + +(4) Finally, I would further like to refer to the “brief report +concerning the activity of the Office of Foreign Affairs of the NSDAP” +(Document Number 003-PS, USA-603). Brief mention is made in it of the +“Near East” in such a harmless manner that no word need be said about +it. In the confidential reports 004-PS and 007-PS nothing is said either +about any preparations against the Soviet Union. + +Administration in the East. + +It would be an easy, too superficial, and therefore, unjust procedure if +one were to say that firstly the Eastern Territories were occupied in a +war of aggression, and therefore anything the German administration did +there was criminal; and secondly, that as Reich Minister for the +Occupied Eastern Territories, Rosenberg was the responsible minister, +and therefore he must be punished for all crimes which have occurred +there, at least for what happened within the scope of the jurisdiction +and authority of the administrative bodies. I will have to demonstrate +that this conception is not correct for legal and factual reasons. + +Rosenberg was the organizer and the highest authority of the +administration in the East. On 17 July 1941 he was appointed Reich +Minister for the Occupied Eastern Territories. Acting on instructions, +he had performed preparatory work before that time on questions +concerning Eastern Europe by contacting the Reich agencies concerned +(Document Number 1039-PS; US-146). He planned and set up his office for +dealing centrally with questions concerning Eastern Europe (Document +Number 1024-PS; US-278). He had provisional instructions for the Reich +Commissioners drawn up (Document Number 1030-PS; US-144); he delivered +the programmatical speech of 20 June 1941 (Document Number 1068-PS; +US-143); above all, he took part in the Führer conference of 16 July +1941 (Document Number L-221; US-317). + +In the presence of Rosenberg, Lammers, Keitel, and Bormann, Hitler said +at that time that the real aims of the war against Russia should not be +made known to the whole world, that those present should understand +clearly that “we will never withdraw from the new Eastern Territories; +whatever opposition appears will be exterminated; never again must a +military power develop west of the Urals; nobody but a German shall ever +bear a weapon.” Hitler proclaimed the subjection and the exploitation of +the Eastern Territories, and in making these statements he placed +himself in opposition to what Rosenberg had told him before—without +being contradicted by Hitler—concerning his own plans for the East. + +Thus Hitler probably had a program of enslavement and exploitation. +Nothing is so natural, and nothing easier than to say: Even before +Rosenberg took over his ministry he knew Hitler’s aims for the East; +namely, to rule it, to administer it, to exploit it. Therefore he is not +only an accomplice in a crime of conspiracy against peace; he is also +jointly responsible for the Crimes against Humanity perpetrated in the +Eastern Territories, since Rosenberg held the complete power, the +highest authority in the East. + +I shall deal later, _de jure_ and _de facto_, with the question of +Rosenberg’s automatic responsibility in his capacity as supreme chief of +the Eastern Territories. First I would like to consider the question of +his individual responsibility. One might deduce it from two reasons: + +First, because he allegedly participated in the preparation of the war +of aggression against the Soviet Union; I have already stated that this +assertion is not correct; Rosenberg has neither ideologically nor +actually participated in the preparations of the war of aggression. + +Secondly, because he supported Hitler’s plan of conquest by making +plans, delivering speeches, and organizing the administration. When a +minister or general, following the instructions of the head of the +State, elaborates plans or takes preparatory measures of an +organizational nature, for later eventualities, this activity cannot be +considered as criminal even when the interests of other countries are +affected thereby and even when the plans, preparations, and measures are +intended for war. Only when the minister or general in question directs +his activity toward things which have to be considered as criminal +according to sound common sense and an international sense of decency +and justice can he be held individually responsible. Rosenberg has +consistently proved by word and deed that the traditional conceptions of +right are his conceptions also and that he desired to enforce them. But +his position was particularly difficult since his supreme chief finally +exceeded all limits in his ideas, aims, and intentions and since other +strong forces like Bormann, Himmler, and Gauleiter Erich Koch were also +involved, who frustrated and sabotaged Rosenberg’s good and fair +intentions. + +Thus we witness the strange spectacle of a minister in office who partly +cannot understand or approve, partly is totally unaware of the +intentions of the head of the State; and on the other hand that of the +head of a state who appoints a minister to take office, who is certainly +an old and loyal political fellow combatant, but with whom he has no +longer any spiritual contact whatsoever. It would be wrong to judge such +a situation simply according to democratic conceptions of the +responsibility of a minister. Rosenberg could not simply resign, yet he +felt inwardly the duty of fighting for the point of view which appeared +to him right and decent. + +In his speech of 20 June 1941 Rosenberg said that it was the duty of the +Germans to consider that Germany should not have to fight every 25 years +for her existence in the East. He by no means, however, desired the +extermination of the Slavs, but the advancement of all the nations of +Eastern Europe and the advancement, not the annihilation, of their +national independence. He demanded (Document Number 1058-PS; Exhibit +USA-147) “friendly sentiments” toward the Ukrainians, a guarantee of +“national and cultural existence” for the Caucasians; he emphasized +that, even with a war on, we were “not enemies of the Russian people, +whose great achievements we fully recognize.” He advocated “the right of +self-determination of people”—one of the first points of the whole +Soviet revolution. This was his idea, tenaciously defended till the end. +The speech in question also contains the passage which the Prosecution +holds against him in particular, that the feeding of the German people +during these years will be placed at the top of German demands in the +East and that the southern territories and the North Caucasus would have +to make up the balance in feeding the German people. Then, Rosenberg +continues literally: + + “We do not see at all why we should be compelled to feed the + Russian people also from these regions of surplus. We know that + this is a bitter necessity which lies beyond any sentiment. + Without a doubt extensive evacuation will be necessary, and + there are very hard years ahead for the Russians. To what extent + industries are to be kept up there is a question reserved for + future decision.” + +This passage comes quite suddenly and all by itself in the long speech. +One feels distinctly that it has been squeezed in; it is not Rosenberg’s +voice; Rosenberg does not proclaim here a program of his own but only +states facts which lie beyond his will. In the directives of the eastern +ministry (Document Number 1056-PS) the feeding of the population, as +well as supplying it with medical necessities, is described as being +especially urgent. + +On the contrary, the true Rosenberg emerges in the conference of 16 July +1941 when, regarding Hitler’s plans, he called attention to the +University of Kiev and to the independence and cultural advancement of +the Ukraine and when he took a stand against the intended full power of +the Police and above all against the appointment of Gauleiter Erich Koch +in the Ukraine (Document Number L-221). + +One will contend: What is the use of opposition and protests, what is +the use of secret reservations and of feigned agreement with Hitler’s +intentions—Rosenberg did co-operate all the same. Therefore he is +responsible too. Later on I will outline in detail how and to what +extent Rosenberg took part in the policy in the East, what things he did +not do and how he opposed them, what he planned and desired himself in +order to defend himself against the grave charge of being responsible +for the alleged exploitation and enslavement of the East. Here I would +only like to point out the following: It was in no way a hopeless task +to begin by accepting even Hitler’s most passionate statements without +contradiction in the hope and with the intention of nevertheless +attaining a different result later on. In opposition to Hitler’s +statement: “No other than a German may ever bear weapons in the East,” +it was not long, for example, before, on Rosenberg’s recommendation, +legions of volunteers were formed from the peoples of the East; and in +opposition to Hitler’s wish, an edict of tolerance was issued at the end +of 1941 for the churches of the East (Document Number 1517-PS). + +If, at first, Rosenberg could achieve nothing for the autonomy of the +eastern nations, he still adhered to his plans for the future in this +respect too. First he took care of the urgent agrarian question. An +agrarian program was drawn up, which it was possible to present to the +Führer on 15 February 1942, and which was authorized by him in unchanged +form. It was not an instrument of exploitation, but an act of liberal +formation of the agrarian constitution in the midst of the most terrible +of wars. Right in the middle of the war the eastern countries not only +received a new agrarian constitution but also agricultural machinery. +The witness Professor Dencker, in his affidavit, has borne witness to +the following deliveries to the occupied Soviet territories, including +the former border states: + + Tractors, 40-50 HP about 7,000 + Threshing machines about 5,000 + Agricultural implements about 200,000 + Gas generators for German + and Russian tractors about 24,000 + Harvesters about 35,000 + Total Cost: about 180,000,000 marks. + +I do not think one can say that these deliveries were made with a view +to exploitation. So in this, too, Rosenberg accomplished a piece of +constructive work that was really a blessing. In the following I will +first treat the question of Rosenberg’s automatic responsibility as +minister for the Eastern Territories; that is, the question of his +criminal liability on the grounds of his official position. + +On 17 July 1941, Rosenberg was appointed Reich Minister for the Occupied +Eastern Territories. Two Reich Commissariats were set up as supreme +territorial authorities: “Ostland” (Esthonia, Latvia, Lithuania, and +White Ruthenia) under Reich Commissioner Lohse, and “Ukraine” under +Reich Commissioner Koch. The Reich Commissariats were divided into +general districts and regions. Right from the beginning the eastern +ministry was not conceived as an administrative authority built on a +large scale but as a central office, a supreme authority which was to +confine itself to over-all instructions and fundamental directives and +in addition was to insure the supply of material and personnel. The +actual governing was the duty of the Reich Commissioner; he was the +sovereign in his territory. + +Moreover, it is of special importance that Rosenberg, as minister for +the East, was not at the head of the whole eastern administration, but +that several supreme authorities existed at the same time. Göring, as +Delegate for the Four Year Plan, was responsible for the control of the +economy in all occupied territories and in this respect had authority +over the minister for the East, for Rosenberg could only issue economic +decrees with Göring’s agreement. The Chief of the German Police, +Himmler, was solely and exclusively competent for police security in the +Occupied Eastern Territories; there was no police division at all in the +ministry for the East, nor in the Reich Commissariats. Rosenberg’s +competence was furthermore undermined by Himmler as Reich Commissioner +for the Preservation of German Nationality and by Speer, on behalf of +whom a Führer decree detached all technical matters from the eastern +administration. It was further weakened by Goebbels who claimed for +himself the control of propaganda in the Occupied Eastern Territories as +well. Later on I shall come to the important question of labor +mobilization, which was put under the authority of Sauckel. +Nevertheless, Rosenberg was the minister responsible for the Occupied +Eastern Territories. In view of this, the following must be emphasized: + +In this Trial Rosenberg is not made responsible from the political +standpoint, since the High Tribunal is no parliament; neither is he made +responsible from the point of view of constitutional law, for the High +Tribunal is not a supreme court of judicature. The liability of the +defendant with respect to civil law is not in question either, but only +his criminal liability, his responsibility for his own alleged crimes +and for the crimes of others. I do not need to outline in more detail +the fact that in order to establish criminal liability and to condemn +it, it must be proved that the defendant illegally committed acts +punishable by law and that he may only be punished for failure to act, +that is, for an omission, if he had the legal duty to act and if it was +due to his inactivity that the crime occurred, always assuming that the +actual possibility existed of his preventing the crime. + +The fact seems to me of decisive importance that Rosenberg although +Minister for the Occupied Eastern Territories, was not a supreme ruler. +Supreme rulers were the Reich Commissioners of the gigantic territories +“Ostland” and “Ukraine.” The lines along which these territories were to +be constitutionally remodeled were not yet visible, but one thing was +certain: The Reich Commissioner was the highest authority. For instance, +it was he who, on the most important measures—like shooting of +inhabitants of a region for acts of sabotage—had the right to make the +ultimate decision. I should like to insert that in practice in these +cases the Police had exclusive competence. The Reich, that is, other +authorities, had the right to fundamental legislation and over-all +supervision. By a slight change in the well-known remark of Benjamin +Constant, the French professor of constitutional law, “_Le roi règne, +mais il ne gouverne pas_,” one may define in the following way +Rosenberg’s position as Minister for the Occupied Eastern Territories: +“_Le ministre gouverne, mais il ne règne pas._” As in certain dominions +of the British Empire, there existed a sovereignty of the Reich +Commissioner with a central over-all supervision by the minister for the +East. Today nobody would think of summoning the competent British +minister before a tribunal because a governor in India had allowed a +native village to be bombed and burned down. + +And so I come to my conclusion that in Rosenberg’s case there exists no +automatic criminal responsibility for the nonprevention of crimes in the +East, if only because, although he had authority of supervision, he was +not sovereign; the two Reich Commissioners had the supreme authority. + +The question must furthermore be asked and briefly examined whether the +defendant is individually guilty of the criminal exploitation and +enslavement of the nations of the East and perhaps of further crimes. +What was his attitude, what were the general lines and general trends of +his policy, what did he do positively, and what did he prevent or at +least try to prevent? + +In the Baltic countries, national administrations or directorates were +installed under German supervision. The German administration was +compelled by the Reich Minister for the Occupied Eastern Territories to +show great understanding for all desires which could be fulfilled and +strive for good relations with the Baltic countries; the Baltic +countries had a free legal, educational, and cultural system and were +only limited with respect to questions concerning politics, economy, and +the police. After the war of 1914-18 agrarian reform in the Baltic +states was carried out almost exclusively at the expense of the +700-year-old German holdings. Nevertheless Rosenberg, as minister for +the East, made a law returning to private ownership the farms which had +been made collective by the Soviet Union since 1940 and, by this +restitution of soil which had originally been taken away from German +proprietors, showed the greatest possible good will of the German Reich. +This, as well as the already-mentioned agrarian program, has been +expressly confirmed by the witness Riecke. + +In the General District of White Ruthenia independent administration was +initiated under Reich Commissioner Kube. The White Ruthenia Central +Committee was founded, as well as a White Ruthenian relief system and a +White Ruthenian youth organization. When a White Ruthenian youth +delegation returned from a visit to Germany, Kube said that he would +continue to act as a father to White Ruthenian youth; the following +night he was murdered, yet this policy was not changed. + +I should like to observe here in passing that the actual Russian +territories between Narva and Leningrad and around Smolensk remained all +the time under military administration; likewise the districts around +Kharkov and the Crimea. + +As far as the Ukraine is concerned, Rosenberg intended to give it +extensive central self-administrative sovereignty, as soon as possible, +similar to the directorates in the Baltic states and combined with a +pronounced advancement of the cultural and educational needs of the +people. After Rosenberg had originally considered himself entitled to +assume that Hitler agreed with this idea, another conception later came +to prevail, namely, that all forces should be directed toward the war +economy. Rosenberg managed to achieve and carry through one thing only: +The new agrarian program of 15 February 1942, which provided for a +transition from the collective economy of the Soviet Union to private +enterprise and then to ownership by the farmers. On 23 June 1943 the +property decree was issued as a complement to this. At first it was not +possible to carry this out because of Reich Commissioner Koch’s +opposition, and then military events brought everything to an end. A +further fundamental decree was based on a general adjustment of the +school system, which Rosenberg had ordered to be worked out because the +Reich Commissioner of the Ukraine declined to do it himself. Rosenberg +provided for elementary schools and higher technical schools; the Reich +Commissioner protested against this. On account of the conflict, which +became more and more acute, between Rosenberg and Reich Commissioner +Koch, Hitler in June 1943 issued the following written instruction: The +Reich Commissioner had no right to make any obstructions, but the Reich +Minister for the Occupied Eastern Territories should confine himself to +essential questions, and when issuing any orders should make it possible +for the Reich Commissioner of the Ukraine to express his opinion +beforehand, which practically meant Koch’s co-operation beside +Rosenberg. + +During his examination of 8 April 1946 the witness Lammers described +Rosenberg’s peculiar constitutional position as Reich Minister for the +Occupied Eastern Territories and his political position, which became +constantly weaker. I would like to emphasize the following striking and +especially important declarations made by the witness: The authority of +the Reich Minister for the Occupied Eastern Territories was detracted +from by the Armed Forces, by Göring as the Delegate for the Four Year +Plan, by Himmler as Chief of the German Police, by Himmler as Reich +Commissioner for the Preservation of Germandom (resettlement measures), +by Sauckel as Plenipotentiary General for the Allocation of Labor, by +Speer in the field of armaments and engineering, and finally, through +differences of opinion, by Propaganda Minister Goebbels. + +Furthermore, Rosenberg was limited by the fact that two Reich +Commissioners, Lohse and Koch, were appointed for the Occupied Eastern +Territories. The Higher SS and Police Leader was “personally and +directly” subordinated to the Reich Commissioner; but, as Lammers has +declared, in technical respects he could not take any orders from +Rosenberg or from the Reich Commissioner but only from Himmler. + +Lammers said furthermore: Rosenberg always wished to pursue a moderate +policy in the East; he was without any doubt against a policy of +extermination and against a policy of deportation, which were widely +advocated in other quarters. He made efforts to rebuild agriculture +through the agrarian program, to put the educational system, church +affairs, the universities and schools in order. Rosenberg had great +difficulty in asserting himself, for especially the Reich Commissioner +for the Ukraine simply did not follow Rosenberg’s orders. Rosenberg +favored instituting a certain degree of independence in the eastern +nations; he particularly had at heart the cultural interests of the +latter. The differences of opinion between Koch and Rosenberg, says +Lammers, could have filled volumes of files. Hitler called Rosenberg and +Koch to him and decided that they should meet each month in order to +consult each other. + +The witness Lammers said, quite rightly, that of Rosenberg as the +superior minister it was asking too much to have to come to an agreement +in each case with his subordinate, the Reich Commissioner. Subsequently +it was shown that in spite of the meetings they came to no agreement, +and finally it was Herr Koch who was right in the eyes of the Führer. As +Lammers says it was about the end of 1943 that Rosenberg was received +for the last time by the Führer, and even before that time he had always +had great difficulties in reaching the Führer. There had been no more +Reich Cabinet sessions since 1937. + +Hitler’s ideas tended more and more in the direction of Bormann-Himmler. +The East became the ground for experiments. + +To this group—as it is quite clear today, for the first time—it seemed +hopeless to look for understanding on the part of Rosenberg as to the +development of the Reich as they wished it. Rosenberg had no idea of the +extent of the fight waged against him. His quarrel with Reich +Commissioner Koch, the exponent of Himmler and Bormann, is proof of this +ignorance; but it is also complete proof of Rosenberg’s integrity. + +On 14 December 1942 Rosenberg issued a set of instructions to the Reich +Commissioner of the Ukraine (Document Number 19-PS); his other +instructions have unfortunately not been found. In this, Rosenberg +requested the administrative chiefs to preserve decent attitudes and +views; he demanded justice and human understanding for the population, +which had always seen in Germany the supporter of legal order (Document +Number 194-PS); the war had brought terrible hardships, but every +offense should be fairly examined and judged, and should not be punished +to excess. It is also inadmissible that German authorities meet the +population with expressions of contempt. One can only show one is the +master through correct manner and actions, not by ostentatious behavior; +our own attitude must bring others to respect the Germans; those +administrative chiefs who have shown themselves unworthy of their tasks, +who have misused the authority they were given, and who by their +obnoxious behavior have shown themselves to be unworthy of our uniform, +must be treated accordingly and summoned before a court or removed to +Germany. + +The echo which such decrees called forth in Koch is shown in his +memorandum of 16 March 1943 (Document Number 192-PS). Koch writes that +“it is a strange thought that not only must a correct attitude be +displayed toward the Ukrainians, but that we must even be amiable to +them and always ready to help.” Furthermore Rosenberg demanded esteem +for the highly-developed consciousness of the Ukrainian people and, +according to Rosenberg, a high degree of cultural self-administration +was desirable for the Ukraine; nations as big as the Ukraine could not +be kept in permanent dependence, and the eastern campaign was a +political campaign and not an economic raid. Here Koch, addressing +Rosenberg, refers in a cynical manner to the climax reached in the +relations of his organization with Ukrainian emigration. There are other +decrees of Rosenberg’s which are criticized by Koch. One of these is the +decree of 18 June 1942 concerning the acquisition by Rosenberg of +Ukrainian schoolbooks for a total of 2.3 million Reichsmark to be +charged to the budget of the Reich Commissariat without his previously +even getting in touch with Koch. One million primers, one million +spelling charts, 200,000 schoolbooks, 300,000 language books, and +200,000 arithmetic books were to be provided at a time when there was +hardly even the most necessary paper for German school children. + +Koch goes on to say: + + “It is not necessary to point out repeatedly in the decrees + issued by your ministry and in telephone communications that no + coercion may be used in recruiting laborers and that the eastern + ministry even demands to be informed of every instance in which + compulsion has been used.” + +In a subsequent decree Koch says he is blamed for having caused the +closing of vocational schools; and he also says that Rosenberg ordered +the General Commissioners to adopt a different school policy, thereby +overstepping his authority as Reich Commissioner. Koch then concludes +with a veiled threat that to him, as a veteran Gauleiter, the way to the +Führer could not be barred. So much challenging criticism of Rosenberg, +so much unintentional praise, and so much proof of the absolute decency +of his behavior and the far-sighted and statesmanlike direction of his +office as chief of the eastern administration! + +One last document in the fight of Rosenberg against Koch is the report +regarding Reich Commissioner Koch and the timber region of Zuman of 2 +April 1943 (Document Number 032-PS), regarding which Rosenberg gave +exhaustive information as a witness. In this very matter Rosenberg +displayed his conscientiousness particularly clearly. + +And now we have again to unroll another scene before our eyes, because +the Prosecution attached specific importance to it: In July 1942, +Bormann wrote a letter to Rosenberg; Rosenberg replied, and a third +party, Dr. Markull, an associate of Rosenberg in his ministry, wrote a +commentary regarding it. According to Dr. Markull’s representation the +contents of Bormann’s letter, the original of which is not extant, was +the following: the Slavs should work for us; if of no use to us, they +ought to die; health provisions were superfluous; the fertility of the +Slavs was undesirable, their education dangerous; it would do if they +could count up to one hundred. Every educated person is a potential +enemy. We could leave them their religion as an outlet. As sustenance +they should receive only the barest necessities; we are the masters and +we come first. + +To that letter by the closest collaborator of Hitler there could be only +one reply by Rosenberg: feigned consent and feigned compliance. In the +inner circle of the eastern ministry there arose considerable +apprehensions regarding this significant change in the attitude of its +chief, apprehensions which were expressed in Dr. Markull’s memorandum of +5 September 1942. Rosenberg as a witness has stated that there cannot +exist any doubt, when that document is read impartially, that he agreed +only for the sake of pacifying Hitler and Bormann. Rosenberg wanted to +insure himself against an attack from the Führer’s headquarters, which +he anticipated with certainty because he allegedly did more for the +eastern population than for the German people, because he required more +physicians than there were available for sick Germans, _et cetera_. + +The Markull memorandum is the truest possible bona fide reflection of +Rosenberg’s personality and influence, since it shows the anxious +subordinate trying to conjure up the spirit of his minister as he had +come to know and to love him in his work, and to dispel an alien phantom +who seemed to have taken his place. It is stated there that such a train +of thought conformed with the policy of Reich Commissioner Koch, but not +with the decrees of the Reich Minister and the conception of at least 80 +percent of the District Commissioners and specialists who were counting +on their minister and who considered that the eastern population should +be treated decently and with understanding, for it evinced a +surprisingly high capacity for culture, its efficiency in work was good, +and we were about to waste a precious stock of gratitude, love, and +confidence. The controversy between the minister and the Reich +Commissioner was well known among the high authorities of the Reich, and +it was no secret that the ministry was unable to carry out its policies +in opposition to the Reich Commissioners, who considered the eastern +ministry as entirely superfluous; the writings of Bormann would disavow +the entire policy of the eastern minister up to now, and one was given +the impression that Koch had been backed by Hitler in his opposition to +the minister. Since its foundation the ministry had had to register an +ever-increasing loss of power. The Higher SS and Police Leaders refused +to render to the General Commissioners the normal honors such as +reports, et cetera. One jurisdiction of the eastern minister after +another was being taken away by other highest Reich offices; in the +offices in Berlin it was openly said that the remodeling of the ministry +into a mere operations staff was to be expected. On the other hand, the +Reich Ministry for the Occupied Eastern Territories, due to the +personality of its leader, enjoyed the exceptional esteem of the public. + +Dr. Markull implores the minister to stand by his original ideas, saying +that the unfortunate master complex should be as much avoided as the +opinion that the intelligentsia were alien to the masses. The influence +of spiritual forces should be taken into consideration. Germany should +prove a “righteous judge,” acknowledging the national and cultural +rights of nations. Such had been the ideas of the minister before, and +such they should remain. + +Rosenberg’s attitude did not in fact change, since at that very time he +was working on the great School Program (Schulverordnung). Later on he +effected the reopening primarily of the medical faculties in colleges. +And then came the conflict with the Führer in May 1943. + +On 12 October 1944 Rosenberg tendered his resignation through Lammers to +the Führer (Document Number Ro-14), because German eastern policy in +general and the political psychological treatment of eastern nations in +particular, were still contrary to the point of view which he had had +from the very beginning, namely, his plan of autonomy for the eastern +nations and the cultural development of their capacities as part of an +all-European conception of a family of nations on the continent. He now +inwardly broke down at seeing a great statesmanlike program destroyed. +All he could do in regard to the policy of enslavement and looting which +was going on in his country was merely to accept memoranda from his +colleagues in the ministry, or at best indulge in a futile paper war +with people like Koch. He had not been strong enough against the plans +which benighted forces wanted to carry out in the East; and he was +powerless against their influence, being in addition totally unaware at +that time of all the police and military orders which were presented +here to the Tribunal. + +When Rosenberg once reminded Hitler of the creation of a university in +Kiev, Hitler apparently agreed; after Rosenberg had left and he was +alone with Göring, Hitler said, “This fellow has too many worries. We +have more important matters on our minds than universities in Kiev.” No +episode can illustrate better than all the documents the one theme: +Rosenberg and the reality in the East, and the other theme: Rosenberg as +the alleged inspirer of Hitler. + +As Rosenberg did not receive any reply to his request for resignation, +he tried many times to talk to Hitler personally. It was all in vain. + +On 11 December 1945 Mr. Dodd said: + + “The system of hatred, barbarism, and denial of personal rights + which the conspirators had elevated to the national philosophy + of Germany followed the National Socialist masters when they + overran Europe. Foreign workers became the slaves of the master + race, being deported and enslaved in millions.” + +And on 8 February 1946 General Rudenko said: + + “In the long line of ruthless crimes committed by the + German-Fascist troops of occupation, the forcible deportation of + peaceful citizens into slavery and bondage in Germany takes a + particularly important place.” + +He said that Göring, Keitel, Rosenberg, and Sauckel were particularly +responsible for the inhuman and barbaric instructions, directives and +orders of the Hitler Government, whose purpose was the carrying out of +the deportation of Soviet people into German slavery. + +I have already spoken of the formal and individual responsibility of +Rosenberg as Reich Minister for the Occupied Eastern Territories. I have +already explained, too, that in the field of labor employment it was not +Rosenberg but Sauckel who, as Plenipotentiary General for the Allocation +of Labor, was the highest authority and the responsible person, by +virtue of the Führer’s decree of 21 March 1942 (Document Number 580-PS). +Thus Sauckel in this field was Rosenberg’s superior. + +He wrote to Rosenberg on 3 October 1942 (Document Number 017-PS): + + “The Führer has drawn up new and most urgent armament programs + which require the speediest employment of two million additional + foreign workers. For the execution of his decree of 21 March + 1942 the Führer has given me more authority for my further + tasks, particularly empowering me to use my own judgment in + taking all measures in the Reich and in the Occupied Eastern + Territories in order to insure the organized employment of labor + for the German armament industry under all circumstances.” + +In his Program for the Allocation of Labor of 24 April 1942 (Document +Number 016-PS), he emphasized that the state and local labor offices are +in charge of all technical and administrative matters in connection with +labor employment which come under the exclusive competence and +responsibility of the Plenipotentiary General for the Allocation of +Labor. The defense of Sauckel is not my task. But may I point out that +he also did not take over his great and difficult task with a feeling of +hatred and intentions of enslavement. In his Program for the Allocation +of Labor just mentioned he says, for instance: + + “Everything has to be avoided which, beyond the shortages and + hardships caused by war conditions, would aggravate and even + cause unnecessary suffering to foreign male and female workers + during their stay in Germany. It stands to reason that we should + make their presence and their work in Germany, without any loss + for ourselves, as bearable as possible.” + +On that point Sauckel and Rosenberg shared the same opinion. + +Neither is it my task to state and to prove that many hundreds of +thousands of foreign workers found good conditions in Germany, that in +fact numberless persons were better off here than in their fatherland. I +am only concerned with the bad conditions which have been charged to the +Defendant Rosenberg. + +I come now to the “Central Agency for Nationals of the Eastern +Territories.” + +Gentlemen of the Tribunal, several days ago I read the affidavit of Dr. +Albert Beil. Essentially it contains an authoritative statement of +whatever can be said about that subject. Therefore, I should like to +omit this subject, “Central Agency for Nationals of the Eastern +Territories,” and ask the Tribunal to consider it as having been +presented. + +[sm type begins]2. Central Office for Nationals of the Eastern +Territories.[sm type ends] + +[sm type begins]As the war became more and more intensified in regard to +totality and brutality, the German workers, and the Germans altogether, +did anything but live in a grand style; they too, as far as they had not +been drafted for the Army, were assigned to labor duties, had to do +heavy work for long hours, were separated from their families, had +frequently to be content with second-rate billets—especially because of +the increasing number of houses damaged by air attacks—and they, too, +were severely punished for refusal to work or defaulting.[sm type ends] + +[sm type begins]The fact that the foreign workers were likewise victims +of this totality and brutality of the war and, admittedly, in some +respects even more so, does not incriminate Rosenberg either legally or +morally. He established, within his ministry, the Central Office for +Nationals of the Eastern Territories, which had neither police tasks nor +any other competencies of an administrative nature but was concerned +solely with the welfare of nationals of the Eastern Territories and +which employed trustees taken from among the eastern nations. In the +report of 30 September 1942 (Document Number 084-PS, US-199) this office +points out several inadequacies: That the accommodation, treatment, +food, and pay of the Eastern Workers called forth strong criticism; +that, though actually the situation was much better now (deadline 1 +October 1942), the conditions for Eastern Workers were on the whole +still far from being satisfactory. Rosenberg is therefore asked to +discuss the matter with Hitler in order to have Hitler himself take +energetic measures; Himmler was to be made to rescind his general +regulations concerning the treatment of Eastern Workers; the Party +Chancellery and the Party to be reminded of their historical +responsibility for the millions of former Soviet citizens now guided by +Germany and instructed to co-operate in all matters concerning Eastern +Workers in the Reich with the Reich Minister; finally it was suggested +to extend the scope of the Central Office for Nationals of the Eastern +Territories as quickly as possible, so as to enable it efficiently to +look after the interests of the aliens from the occupied territories +living in the Reich, being, so to speak, the projected arm of the East +ministry and the representative of these people. In this sense, namely, +in the sense of social care and humane welfare, the eastern ministry was +active for the Eastern Workers.[sm type ends] + +To refute the charge that Rosenberg was active as protagonist of the +system of hatred and barbarism, of denying human rights, and of +enslavement, I must add the following. Rosenberg received further +unfavorable reports, one being the report of 7 October 1942 about the +bad treatment of Ukrainian skilled workers (Document Number 054-PS, +US-198). Abuses in recruiting and during transportation were pointed +out; the workers were frequently dragged out of their beds at night and +locked up in cellars until the time of their departure; threats and +blows by the rural militia were a matter of course; food brought from +home was often taken by the militia; during transportation to Germany +neglect and transgressions on the part of the escorting units occurred, +_et cetera_. + +Rosenberg had no authority whatsoever to intervene in those matters, yet +he tried to do so in a letter of 21 December 1942 to Sauckel; Rosenberg +first emphasized his fundamental accord with Sauckel; but after a few +tactical and polite _clichés_, he complained seriously and urgently +about the methods used in the employment of labor. I quote: + + “I must emphatically request, in view of my responsibility for + the Occupied Eastern Territories, that in supplying the required + quotas methods should be avoided which might one day cause me or + my associates to be charged with connivance and with being + responsible for the consequences.” + +Rosenberg further states that he empowered the Reich Commissioner for +the Ukraine to make use, so far as required, of his sovereign rights and +to give attention to the elimination of recruiting methods which were +running counter to the interests of warfare and war economy in the +occupied territories. He, Rosenberg, and the Reich Commissioners could +not help being surprised that in numerous instances measures, which +should have been previously agreed upon with the civilian authorities, +were first learned of through the police or other offices. Without +co-ordination of their mutual wishes Rosenberg was unfortunately unable +to accept the joint responsibility for consequences resulting from these +reported conditions. In conclusion Rosenberg expressed the wish to put +an early end to such conditions for the sake of their common interest. + +Rosenberg also tried personal consultations with Sauckel and got Sauckel +to promise that he would do everything to bring about a fair solution of +all these questions (conference of 14 April 1942). It was beyond +Rosenberg’s power and authority to do more. His secret opponent, +supported by higher authorities, was Reich Commissioner Koch, who was +indeed one of the chief culprits responsible for the cruel methods of +recruiting and employment of Eastern Workers, and whose influence +Rosenberg was unable to counteract. + +When the prosecutor (Brudno, on 9 January 1946) charges the defendant +with protesting against these methods not for humanitarian reasons but +out of political expediency, I can only say that in my opinion one +cannot, without some sound reasons, simply maintain that the Defendant +Rosenberg is devoid of any human qualities. + +As an example of the defendant’s particular bestiality, the so-called +“Hay Action” has been repeatedly pointed out by the Prosecution +(Document Number 031-PS). It concerned the intention of Army Group +Center to evacuate 40,000 to 50,000 juveniles from the area of +operations, as they represented a considerable burden to the area of +operations and were besides, for the most part, without any parental +supervision. Villages for children were to be established behind the +front lines under native supervision; one of these villages had already +proven its value. It was hoped that through the Organization Todt, being +a particularly appropriate organization due to its technical and other +possibilities, the juveniles might, in the main, be placed at the +disposal of German handicraft as apprentices, in order to employ them as +skilled workers after 2 years’ training. At first Rosenberg, as Reich +Minister for the Occupied Eastern Territories, was against this because +he feared that the action might be considered as a deportation of +children, while on the other hand, the juveniles did not represent a +considerable increase of military strength. The chief of the political +operations staff approached Rosenberg again, stating that Army Group +Center attached particular importance to the fact that the children +should enter the Reich, not by authority of the Plenipotentiary General +for the Allocation of Labor, but through the agency of the Reich +Minister for the East, as it was felt that only then could they be +assured of correct treatment. The Army Group wanted the action to be +carried out under the most correct conditions and asked for special +regulations to be issued with regard to mail facilities between them and +their parents, _et cetera_. In the event of a possible reoccupation of +the territory the eastern ministry could then let the children go back. +Together with their parents they would certainly form a positive +political element during the subsequent reconstruction of the territory. + +Finally, as reason for the second request addressed to the minister, it +was stated in addition that the children, to be sure, would not +essentially contribute to strengthening the military power of the enemy +but that the important factor in this case was the long-range weakening +of his biological strength; not only the Reichsführer SS but also the +Führer had expressed themselves to this effect. Rosenberg finally gave +his consent to this action. + +With regard to this it may be said: This concerned a field which was not +at all within the jurisdiction of Rosenberg’s administration; he did not +want to destroy a foreign element, even if biological weakening was +given him as a reason—a reason which he himself did not recognize. +Instead he wanted to have the children educated and trained and bring +them and their parents back to their homes later on. That is virtually +contrary to the crime with which the defendant is charged. Later on, in +the late summer of 1944, Rosenberg visited the Junkers plant in Dessau +where approximately 4,700 young White Ruthenian craftsmen were employed +and also visited a White Ruthenian children’s camp. The clothing of the +workmen was irreproachable; they were industrious, enjoyed the best +treatment, and got along very well with the German workers. As Rosenberg +was able to see for himself, the young people were taught languages and +mathematics by Russian teachers. The children were cared for in their +forest camp by White Ruthenian mothers and women teachers. The figure of +40,000 moreover, was never attained, in fact, barely half of it. + +The attempt of the Prosecution in this instance to appeal especially to +considerations of humanity in order to discredit the defendant cannot be +successful in my estimation. For this very example compels me to point +out the following in particular: We were in the midst of a war which was +being conducted with terrible intensity on both sides. Is not war in +itself “monstrous bestiality”? The “weakening of the biological strength +of nations” is truly a fitting expression for the goal and purpose of +the whole war, for that is what the thoughts and efforts of both +belligerent parties are aimed at. It would surely be unthinkable that +one should forget this in judging the actions of the defendants and that +one should wish to hold the defendants responsible not only for +unleashing the war, but in addition, for the fact that war in its very +essence constitutes a great crime on the part of mankind, both against +itself and against the laws of life. + +The Prosecution contends that Rosenberg is guilty also insofar as it was +he who issued the inhuman and barbaric decrees which aimed at carrying +out the deportation of Soviet people into German slavery. This causes me +to discuss the question as to whether the compulsory labor decree of 19 +December 1941 and Rosenberg’s other decrees concerning compulsory labor +for the inhabitants of the Eastern Territories, were contrary to +international law. + +The Eastern Territories administered by Rosenberg were militarily +occupied during the war. Through this occupatio bellica Germany realized +complete domination and had the same sovereignty as over her own +territory. While according to previous conceptions of international law +the occupying power could act arbitrarily without consideration of +rights and laws, the recent evolution of international law eliminated +the principle of force and brought victory to the principles of humanity +and culture. Therefore the formerly unlimited might of the occupying +power was altered to limited rights. The Hague Rules of Land Warfare +stipulated in particular the legal obligations of the occupying power. + +On the other hand, it is not true to say that the Rules of Land Warfare +specify only certain privileges for the occupying power. They merely set +a limit to the basically unlimited right of the occupying power to +exercise all powers deriving from territorial sovereignty over an +occupied territory. + +THE PRESIDENT: Would that be a convenient time to break off? + + [_The Tribunal adjourned until 10 July 1946 at 1000 hours._] + + + + + ONE HUNDRED + AND SEVENTY-FIFTH DAY + Wednesday, 10 July 1946 + + + _Morning Session_ + +THE PRESIDENT: The Tribunal will sit in closed session this afternoon +and will not sit in open session after 1 o’clock. + +DR. THOMA: Mr. President, may it please the Tribunal, with regard to the +question of the justification of the decree concerning the compulsory +labor service of the inhabitants of the Eastern Territories, I should +like to continue on Page 33. + +Thus the following principle recognized by international law is +indicated: + +Measures undertaken by an occupying power in occupied territory are +legal as long as they are not in opposition to a proven stipulation of +the international rules of warfare. The occupying power is therefore +assumed to be entitled to the full exercise of all powers derived from +territorial sovereignty over an occupied territory. According to the +uniform opinion of experts on international law the occupying power acts +by virtue of an original law of its own, guaranteed and defined as to +content solely by international law, in the interest of its own conduct +of the war as well as for the protection of the civil population in the +occupied territory. I quote Heyland from _Handbuch des Völkerrechts_. + + “The inhabitants of the occupied territory no longer have a duty + of allegiance to the enemy sovereign but only to the occupying + power; the will of the occupying power rules and decides in the + occupied territory; the occupying power is the executor of its + own will; its own interests alone are decisive for the exercise + of its sovereign rights and, therefore, it is at liberty to act + against the interest of the enemy state.” + +In view of Article 52 of the Hague Rules of Land Warfare the right to +conscript labor in the occupied territory is acknowledged. It is +stipulated here that labor services may be demanded from the inhabitants +of the occupied territory; the demand must be limited to the +requirements of the occupation forces; it must be in proportion to the +resources of the country and must be of such a nature as not to compel +the population to participate in military operations against their own +country. In these stipulations I cannot discern any prohibition of labor +conscription in occupied territories; on the contrary, I consider that +an approval of compulsory labor service can be clearly deduced from +them. The employment of such labor in war industry is undoubtedly in +accordance with the requirements of the occupation forces and, in my +estimation, it is equally beyond doubt that this constitutes no +commitment to military operations. The Rules of Land Warfare contain no +stipulations as to whether labor service may be demanded only in the +home country or whether the conscript may be transported into the native +land of the occupying power for the purpose of rendering labor services +there. Thus, the general principle holds good that the occupying power +is assumed to be entitled to exercise to the utmost extent all powers +deriving from territorial sovereignty. + +If one takes the correct view that the international rules of warfare +should tend to humanize war by limiting the rights of the belligerents +and that the trend in this direction should be continued, one must +consider on the other hand that the stern reality of war tends toward +the opposite direction. + +THE PRESIDENT: Dr. Thoma, the Tribunal would like to know whether it is +your contention that the Hague Rules authorize the deportation of men, +women, or children to another country for the purpose of labor service. + +DR. THOMA: Mr. President, I propose to speak about the interpretation of +the Hague Rules of Land Warfare and I am dealing here with the question +as to whether it is permissible to transport inhabitants of the country +in order to meet the requirements of the occupying forces. I have stated +my position here that laborers can also be transported into the country +of the occupying power. About children, of course, I have said nothing. +I did not say anything about Jews either. I only spoke about persons +able to work, who were required to work in accordance with the +necessities of the occupying power, and I said it was admissible for +them to be transported into the home country of the occupying power. I +leave this problem to the discernment of the Tribunal. + +THE PRESIDENT: The Tribunal would like to have any authorities in +international law which you have to cite for that proposition. + +DR. THOMA: Mr. President, I shall mention some more quotations, more +detailed scientific quotations concerning this problem. I have already +quoted in that regard. I have repeatedly quoted Heyland’s _Handbuch des +Völkerrechts_, published by Stier-Somlo, and I shall give more +quotations. + +THE PRESIDENT: Will you tell me what language that book is in? + +DR. THOMA: In German, Mr. President; it is the _Handbuch des +Völkerrechts_, published by Stier-Somlo, 1923. + +Present-day warfare is no longer what it was in 1907. War has developed +into total war, a life-and-death struggle of annihilation, in which the +very last physical and moral forces of the nation are mobilized, and the +loss of which, as is shown by the example of Germany, means +unconditional surrender and the total destruction of her existence as a +State. + +Can one maintain, in view of this fact, that Germany, in this struggle +of life and death, should not have been granted the basic right of +self-preservation recognized by international law? + +I refer to Strupp, _Handbuch des Völkerrechts_, published by +Stier-Somlo, Stuttgart 1920, Part III, “Violations of International +Law,” Page 128 _et sequentes_. + +There is no doubt that the very existence of the State was at stake; +that is, it was an emergency which justified the compulsory employment +of labor, even if it had not been permissible according to international +law. It is inherent in that great anomaly called war that, as soon as +the state of war has been proclaimed, international law is in a large +measure set aside in the interest of the objective of the war, the +overpowering of the enemy. + +I quote Strupp, as above, Page 172. + + “The development of civilization has seen a progressive + moderation of the conception according to which everything is + permissible in war until the enemy is destroyed; nevertheless + the rules of warfare constitute even today a compromise between + the demands of unrestrained military necessity and progressive + humanitarian and civilized views. + + “One thing, at any rate, is certain, namely, that the existence + of a genuine emergency may be pleaded, even under the + stipulations of the Hague Rules of Land Warfare. During the + negotiations preceding the formulation of Article 46 of the + Hague Rules, the following was stated literally and without + opposition in the plenary session of the Conference: + + “‘The restrictions might affect the liberty of action of the + belligerents in certain extreme emergencies,’ indicating that + for extreme contingencies, therefore, a state of emergency may + be pleaded. It is recognized international law that even an + aggressor must not be denied the right of pleading a state of + emergency in case his existence is directly threatened.” + +In connection with the chapter concerning the eastern administration, I +should like, without pointing out specifically all that the defendant +has said during his testimony concerning accusations of the Soviet +Prosecution, in particular the reports of the state commissions and the +Molotov reports (Documents USSR-39, 41, 51, 89, and record of 16 April +1946), to express a hope that the factual corrections made by the +defendant will be duly evaluated by the Tribunal. + +Now I come to a new subject: Contrary to the assumption of the +Prosecution, Rosenberg was in no instance the instigator of a +persecution of Jews, any more than he was one of the leaders and +originators of the policy adopted by the Party and the Reich, as the +Prosecution claims (Walsh, on 13 December 1945, Volume III, Page 539). +Rosenberg was certainly a convinced anti-Semite and expressed his +conviction and the reasons for it both verbally and in writing. However, +in his case anti-Semitism was not the most outstanding of his +activities. In his book _Blood and Honor_, speeches and essays between +1919 and 1933, out of 64 speeches, for example, only one had a title +referring to Jewry. The same applies to the other two volumes of his +speeches. He felt his spiritual ancestors to be the mystic Meister +Ekkehart, Goethe, Lagarde, and Houston Stewart Chamberlain; +anti-Semitism was for him a negative element, and his chief and most +positive efforts were directed toward the proclamation of a new German +intellectual attitude, and a new German culture. Because he found this +endangered after 1918, he became an opponent of Jewry. Even such +different personalities as Von Papen, Von Neurath, and Raeder now +confess to their belief that the penetration of the Jewish element into +the whole of public life was so great that a change had to be brought +about. It strikes me as very important, however, that the nature of +Rosenberg’s anti-Semitism was intellectual above all. For example, at +the Party Rally of 1933 he explicitly mentioned a “chivalrous solution” +of the Jewish question. We never heard Rosenberg use expressions like +“We must annihilate the Jews wherever we find them; we shall take +measures that will insure success. We must abandon all feelings of +sympathy.” The Prosecution itself quotes the following as an expression +of the program Rosenberg set up for himself (Volume III, Page 529): + + “After the Jews have been ousted as a matter of course from all + official positions, the Jewish question will find a decisive + solution through the setting up of ghettos.” + +GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Mr. +President, rather reluctantly I interrupt counsel for the defense, and I +do not like to take the time of the Tribunal, but what I just heard is +going beyond any permissible limits. When the defendants sitting in the +dock tried to express their Fascist views, this was deemed inappropriate +and cut short by the Tribunal. + +I think that it is absolutely inadmissible that defense counsel should +use this place to promote antihuman propaganda; I cannot understand the +contention of the lawyer who alleges the existence of a noble, spiritual +anti-Semitism which Rosenberg advocates and that Rosenberg’s belief in +gathering all Jews in ghettos was chivalrous. Please note that the +lawyer is not quoting any Nazi leader but expresses his own opinion, and +I protest against the use of the International Military Tribunal for the +spreading of Fascist propaganda. I ask the Tribunal to consider this +objection of mine and to take appropriate action. + +DR. THOMA: May it please the Tribunal—may I make an answer to that? + +THE PRESIDENT: Dr. Thoma, we don’t think it is necessary to trouble you. +The Tribunal thinks—there may be, of course, differences of opinion as +to the use of words in the course of your argument, but they see no +reason for stopping you in the argument that you are presenting to the +Tribunal. + +DR. THOMA: Thank you, My Lord. + +May it please the Tribunal, after what General Rudenko has said, I +should like to make one statement. In my speech I have tried to argue +upon the statements of the Prosecution and nothing else. I would like to +say something else. The words “chivalrous solution of the Jewish +question” were not my expression; I just quoted that as a statement made +by Rosenberg a long time before he came into this Court. The Prosecution +quotes the following as Rosenberg’s statement of a program: “The Jewish +question...” and so on; I have already read that. + +It was not a mere question of chance that Rosenberg did not take part +in, the boycotting of Jews in 1933, that he was not called upon to work +out the laws against the Jews in 1933, 1934, 1935, and so on +(expatriation, prohibition of marriages, withdrawal of the right to +vote, expulsion from all important positions and offices). Above all, he +never took part in the action of 1938 against the Jews, nor in the +destruction of synagogues, nor in anti-Semitic demonstrations. Neither +was he the instigator in the background who sent out, or ordered, lesser +people to commit certain actions. To be sure, Rosenberg was a true +follower of Hitler, who took up Hitler’s slogans and passed them on. For +example, the motto, “The Jewish question will be solved only when the +last Jew has left Germany and the European continent,” and once the +slogan of “Extermination of Jewry.” + +Exaggerated expressions were always part of the National Socialist +weapons of propaganda. A Hitler speech was hardly imaginable without +insults to his internal or external political opponents, or without +threats of extermination. Every one of Hitler’s speeches was echoed a +million times by Goebbels down to the last speaker of the Party in a +small country inn. The same sentences and words which Hitler had used +were repeated, and not only in all the political speeches, but in the +German press as well, in all the editorials and essays, until, weeks or +months later, a new speech was given which brought about a new echo of a +similar kind. + +Rosenberg was no exception. He repeated, as everyone did, all of +Hitler’s slogans, including that of the “solution of the Jewish +question,” and once also that of the “extermination of Jewry.” +Apparently, like Hitler’s other supporters, he gave as much or as little +thought to the fact that in reality none of those phrases were clear but +that they had a sinister double meaning and, while they might have meant +real expulsion, they might also have implied the physical annihilation +and murder of the Jews. + +May I remind the Tribunal at this point that Rosenberg, during his +testimony, made a reference to a speech of the British Prime Minister in +the House of Commons in September 1943, in which speech it was stated +that Prussian militarism and National Socialism had to be exterminated +root and branch. No German interpreted that literally, and I believe no +one interpreted it to mean that German soldiers and the National +Socialism had to be exterminated physically. + +Aside from the knowledge and will of the German people, and aside from +the knowledge and will of the majority of the leadership of the +Party—that is to say, known only to Bormann, Himmler, and +Eichmann—there was hatched and carried out, from 1941 onward, a mass +crime which surpassed all human concepts of reason and morality. The +“Jewish question” was developed even further and brought to a so-called +“final solution.” + +The Tribunal will have to decide the question whether Rosenberg, the +specially characteristic exponent of the Party, the Reich Minister for +the Occupied Eastern Territories, is also responsible for the murder of +the Jews, and particularly for the murder of Jews in the East; that is, +is he a murderer of Jews? Or must it be recognized and admitted that, +although he stands but a hair’s breadth from the abyss, it was, after +all, external circumstances which led up to it all, and that these +circumstances were outside his sphere of responsibility and guilt? + +I believe I can say that Rosenberg never aimed, either openly or in +secret, at the physical extermination of the Jews. His reserve and +moderation were certainly no mere tactics. The slipping of anti-Semitism +into crime took place without his knowledge or will. The fact in itself +that he preached anti-Semitism justifies his punishment as the murderer +of Jews as little as one could hold Rousseau and Mirabeau responsible +for the subsequent horrors of the French Revolution. + +Furthermore, no matter how much the first impression might lead to it, +criminal guilt on his part cannot be deduced from his position as Reich +Minister for the Occupied Eastern Territories. As already stated, the +“responsible minister” cannot simply be held responsible for criminal +acts committed in his sphere or his territory. Criminal responsibility, +according to the German Penal Code, Paragraph 357, exists only if an +official knowingly assents to the criminal actions of his subordinates, +and if—the commentaries furnish this supplement—the superior is in a +position to prevent the action. + +I should like to take up the question of his responsibility on the +grounds of the documents submitted for this purpose. + +(1) The action taken against the Jews at Sluzk (Document Number +1104-PS). + +On 27 October 1941, a horrible slaughter of Jews took place in Sluzk, +committed by the four companies of a police battalion, because the +commander received an order from his superior to clear the city of all +Jews without exception. The district commissioner immediately made +vigorous protests, demanded that the action be stopped at once, and gun +in hand kept the police officers in check as far as he was able. He +reported to the General Commissioner of White Ruthenia, Kube, at Minsk, +and the latter suggested to the Reich Commissioner Ostland, Lohse, that +the officers implicated be punished for this “unheard-of bestiality.” He +in turn reported to the Reich Minister for the East, with the request +that immediate measures be taken at higher levels. The Reich Minister +for the Occupied Eastern Territories sent the entire report to Heydrich, +the Chief of the Security Police and of the SD, requesting further +action. Due to an ingenious system according to which the Police were +not responsible to the competent administrative chief and were not even +obliged to report, Rosenberg could not take any further steps either in +this or in similar cases. He was not head of the Police, and could only +hope that the transmission of the report to Heydrich would be sufficient +to stop what he considered to be regional excesses of the Police. + +It can be seen from the indignation of all the administrative offices +over the reported incidents that none of them knew that it was no +question of excesses, but of an action ordered by Heydrich and Himmler. +Even though Rosenberg violently disliked Heydrich and Himmler, not even +he could suspect anything of this kind. + +(2) Also from October 1941 dates Document 3663-PS in which the Reich +Minister for the Occupied Eastern Territories, for whom Dr. Leibbrandt +signed, calls for a report by the Reich Commissioner Ostland, because a +complaint has been made by the Reich Security Main Office that the Reich +Commissioner Ostland had prohibited executions of Jews in Libau. To this +the addressee replied: + + “I prohibited the execution of Jews in Libau because there was + no justification for the way in which it was carried out.” + +This is followed by a request for further instructions. Regarding this +document—which is signed by the departmental chief Leibbrandt, and +which in no way points to any knowledge on the part of the Defendant +Rosenberg—I wish to make the following provisional brief statement: + +It is not conceived as a reproach by the Reich Minister for the East +because the executions of Jews were discontinued, but it simply +represents the transmittal of a complaint by the Reich Security Main +Office, adding a request to report. It is to be presumed that the reason +for the complaint was that the Reich Commissioner Ostland encroached on +the competency of the Reich Security Main Office and the demand for a +report was presumably issued in that sense. In a letter of 18 December +1941, the Reich Minister, in a letter also signed “By order: Bräutigam,” +asked the Reich Commissioner Ostland to settle directly any questions +which might arise with the Higher SS and Police Leader. + +To identify the letter “R” as Rosenberg’s initial, because the +Prosecution obviously was more than doubtful about Rosenberg’s knowledge +of matters, turned out to be equally unfortunate. This “R” is not +Rosenberg’s. + +(3) Document Number 3428-PS concerns a letter of the General +Commissioner for White Ruthenia to the Reich Commissioner for the East. +It is a shocking document about the mass extermination of Jews in White +Ruthenia; however, there is nothing of interest in it for the case +against Rosenberg, because those horrible events could be attributed to +him only if he knew of them, and in neglect of his duty failed to +intervene. There is no actual proof to found a supposition of such +knowledge. The claim that these documents were found in Rosenberg’s +possession cannot be in accordance with the actual facts, for they show +the Reich Commissioner in Riga as the addressee. + +(4) In the “Memorandum for the Führer of 18 December 1941” (Document +Number 001-PS) the defendant suggested the following, which I must quote +literally: + + “The assaults against members of the German Armed Forces have + not stopped, but have gone on. It seems to be an obvious plan to + disturb German-French co-operation, to force Germany to take + measures of retaliation, thereby bringing about a new defensive + attitude on the part of the French against Germany. My + suggestion to the Führer is that instead of killing 100 + Frenchmen, he should have 100 or more Jewish bankers, lawyers, + _et cetera_, shot.” + +It is not my task here to discuss how far it is admissible to shoot +hostages, but one thing is certain, that Rosenberg was convinced such a +measure was admissible. In that case, however, his suggestion must be +considered in that light, and can by no means be judged as an +independent incitement to murder. Besides, the suggestion had no +results. In his reply of 31 December 1941, Lammers, acting on behalf of +the Führer, merely referred to the suggestion of utilizing the furniture +and fittings from Jewish houses, and not to the shooting of hostages. +Therefore, Rosenberg made no more reference to it. + +At this point I should like to interpolate the following: The French +prosecutor charged Rosenberg, when the latter was in the witness box, +with the fact that this was murder. Gentlemen of the Tribunal, it was +not murder, because no execution took place. But neither was it +incitement to murder. One can only incite someone who still has to be +persuaded. However, if the man who commits the act is already prepared +for anything, is an _omni modo facturus_, then he can be incited no +more, and there only remains the offense of a suggestion of a criminal +act, which, according to German law, must be judged as an offense to +receive only slight punishment, because it has had no consequence. + +Just at this point I should like to recall that Rosenberg testified as a +witness that on one occasion a court sentenced a district commissioner +in the East to death for having extorted valuables from a Jewish family, +and that that sentence was carried out. Please do not consider it an +improper argument of the defense when I say: Does that not prove that +Rosenberg abhorred criminal acts against the Jews? + +(5) Document Number Rosenberg-135, Exhibit Number USSR-289, refers to +the report of the General Commissioner of White Ruthenia in Minsk, dated +1 June 1943, on the subject of what happened in the prison of Minsk as +regards gold fillings. This was addressed to the Reich Commissioner +Ostland, who forwarded the report on 18 June 1943 with the utmost +indignation. At his hearing before the Tribunal on 16 April 1946 the +defendant already made a statement on this point. I should like to +repeat this briefly now: The defendant had returned on 22 June 1943 from +an official visit to the Ukraine and found a pile of notices about +conferences, a number of letters, and above all the Führer decree from +the middle of June 1943, in which Rosenberg was instructed to limit +himself to the fundamentals of lawmaking and not to bother about +details. Herr Rosenberg did not read the letter concerned, but he has to +surmise—he cannot remember this—that the letter was explained to him +by his office, and presumably in the course of the reading he was +informed of many documents and learned that there was again serious +trouble between the Police and the civilian administration, and it is +probable that Rosenberg said: Turn that over for investigation to +Gauleiter Meyer or to the liaison officer. Otherwise the terrible +details would certainly have remained in Rosenberg’s memory. + +Nobody doubts for a moment that the horrible crimes shown in these +documents and all the other frightful things not covered in the +documents, but which actually happened, call for atonement. Nobody +doubts that not only the lesser henchmen acting on higher orders shall +be punished, but also above all those who issued the orders, and those +responsible for the crimes. Rosenberg did not issue an order to murder +Jews; that much is clear. Is he, in spite of this, responsible for the +frightful murders? + +There is no trace of the defendant’s handwriting on any of the murder +documents. Nor has it been determined in any case that he knew anything +about what went on. Can we condemn Rosenberg on the basis of his +presumed and probable knowledge? Rosenberg has by no means the intention +of playing a false and cowardly game of hide-and-seek behind his +advisers and officials. But let us remember how cunningly the so-called +executions of the Jews were kept secret, not only from the public, but +even from Hitler’s closest collaborators. + +Is it not possible, and even credible, that they were playing a game of +hide-and-seek even with Rosenberg? The thoughts and intentions of none +of the other NSDAP leaders were revealed so openly and clearly to all +the world as particularly those of the author Rosenberg. Of none other +could one be so sure that he would turn with indignation from inhuman +and criminal acts. + +But let us go one step further and assume that Rosenberg had full +knowledge of this greatest crime. It is not proved, but one could +imagine it and surmise it. Is he then responsible, too? Peculiar, even +subtle, as we well know, was the departmental authority, and the +responsibility which went with it, in the eastern countries. The entire +police system had been taken from Rosenberg’s sphere of influence, at +the highest level of which was Himmler, and under him Heydrich. Of their +orders and measures Rosenberg naturally had no knowledge and no idea. + +The lower echelons of police leaders and police agencies were in effect +subordinate and responsible to their police superiors and no one else. +It was quite immaterial whether or not Rosenberg knew anything of the +measures taken by the Police; he could change them as little as any +other of his fellow citizens in the Third Reich. One might say: Yes, he +could have remonstrated with Himmler or Hitler; he could have resigned. +Of course, he could have done so. The decisive point, however, is not +whether he could have done it; the question is whether he would have +achieved anything by doing so—that is to say, whether he could have +prevented the execution; for only in such a case could his +responsibility be affirmed on the basis of his failure to act, and only +in such a case could one speak of causality without which criminal +responsibility is unthinkable. + +One might further claim, still under the assumption of Rosenberg’s +knowledge of matters, that Rosenberg could at least have taken steps +against the Reich commissioners, who were obviously involved in these +matters. We know that the administrative organization and the dividing +up of final authority in the East were vague, to say the least. The +Reich commissioners were sovereign masters in their own territory, who +had the final decision in the shooting of hostages and in other +retaliatory measures of far-reaching consequence. And what was the +actual extent of their authority? In case the Reich Commissioner was +dissatisfied with Rosenberg—and mostly he was dissatisfied—he went to +Hitler. Does anyone really believe that if Rosenberg disagreed with Koch +as regards the execution of Jews, he would have been upheld by Hitler if +he had approached him? Here again, there is a lack of that causality +which is indispensable for a legal condemnation. + +I come now to the Einsatzstab Rosenberg, the Operational Staff +Rosenberg. + +No less than three prosecutors have taken the stand in this Trial +against Rosenberg, and have accused him of wholesale stealing of objects +of art and science in the East and West (Storey, 18 December 1945; +Gerthoffer, 6 February 1946; Smirnov, 15 February 1946). First I must +take exception to some obvious exaggerations and injustices, that is, +the assertion that the activities of the special staff in the West +extended to public and private property without distinction (Volume VII, +Page 55), and that the objects of art Germany appropriated amount to +more than the combined treasures of the Metropolitan Museum in New York, +of the British Museum in London, of the Louvre in Paris, and of the +Tretjakov Gallery. Further, I must declare the statement incorrect that +the “looting program” of Rosenberg was intended to rob the occupied +countries of their entire centuries-old possessions of art and science. +Finally, the Prosecution contrasts Rosenberg’s actions to the looting of +art treasures in former wars. It says that while egotism, conceit, +taste, and personal inclination used to be the underlying motives of +such looting, the National Socialists primarily had the criminal +intention of storing up reserves of valuables (Volume VII, Page 65). I +think it unnecessary to refer to the looting of art treasures in former +times as far back as Napoleon, because the concepts of international law +and regulations have changed in the meantime, but I should like to +mention two things: + +First, how many of the most famous objects of art in the most famous +galleries of the world got there through the channels of war and how +many got there in a peaceful way? + +Second, I am prepared to accept the fact that the Prosecution denies +Rosenberg’s delight in art, or joy in the possession of art treasures as +a possible motive for his actions, because Rosenberg was no robber, no +plunderer, of art. He had no intention of appropriating the objects of +art for himself or for someone else. + +What were the actual facts? Rosenberg’s operational staff was active in +the East and in the West. It had two tasks: First, to search libraries, +archives, _et cetera_, for material suitable for the proposed +“university” of the Party, to confiscate this material and take it away +for the purpose of research, and secondly, to seize objects of cultural +value which were in the possession of or which belonged to Jews, or +which had no owner or were of a doubtful origin. The Prosecution says: +“The true and only motive, the true and only purpose of this ‘seizure’ +was robbery and looting; there could be no question of intentions of +mere ‘safeguarding.’” + +On 20 August 1941 Rosenberg wrote to the Reich Commissioner Ostland that +he wished distinctly to prohibit the transfer of any kind of art +treasure from any place whatsoever without the approval of the Reich +Commissioner (Document Number 1015(c)-PS). On 30 September 1942 the +Commander-in-Chief of the Army issued an order (Document Number +1015(n)-PS) in agreement with Rosenberg to the following effect: + + “Apart from exceptional cases when it is urgent to safeguard + endangered objects of cultural value, it is desired that for the + time being such objects be left where they are.” + +Later on, it says: + + “The troops and all military commands within the operational + area are now as before directed to spare valuable cultural + monuments as far as possible and to prevent their destruction or + damage.” + +In the report of the Special Staff for Creative Arts (report on work +carried out between October 1940 and 1944, Document Number 1015(b)-PS) +it is stated that in the Occupied Eastern Territories the activities of +the Special Staff for Creative Arts were restricted to the scientific +and photographic registration of official collections, and that the +safeguarding and protection of these was carried out in co-operation +with the military and civilian agencies. It says further that in the +course of vacating the territories, several hundred valuable icons and +paintings, _et cetera_, were saved and, with the co-operation of the +individual army groups, were brought to a place of safekeeping in the +Reich. Finally, on 12 June 1942 Rosenberg sent out the following decree +in a circular letter to the highest Reich authorities, which reads: + + “In the Occupied Eastern Territories a number of offices and + individuals are engaged in the safeguarding of objects of + cultural value. They work from various approaches to the subject + and independently of each other. It is absolutely essential for + the administration of these territories that a survey be made of + the existing objects of cultural value. Furthermore it must be + endeavored, as a general rule, to leave them where they are for + the time being. To this end I have set up a central office for + the registration and safeguarding of objects of cultural value + in the East as a special division within my ministry.” + +Thus Rosenberg, as can be proved, proceeded from the point of view that +objects of cultural value had to remain in the country and only through +the retreat of the German troops were a few hundred valuable icons and +paintings brought into Germany. + +In time of war, objects of cultural value, both mobile and immobile, are +as exposed to the danger of destruction as are any other objects of +value. Rosenberg stopped all unnecessary destruction, theft, and +removal; he centralized the safeguarding of objects of cultural value +and had all necessary actions taken through his operational staff in the +East and the West (for example, see Abel’s report on the library at +Minsk, Document Number 076-PS). It is quite in accordance with the +conception of international law (I quote Scholz, _Privateigentum im +besetzten und unbesetzten Feindesland_, Berlin 1919, Page 36) that care +should be taken on the part of the occupying powers not only to protect, +but to safeguard and salvage protected objects of art as far as the war +situation permits. It is even considered a cultural duty for the +occupying power to remove particularly valuable objects of art from the +combat zone and place them in safety as far as possible. Under certain +circumstances the concept of international law may render it the +cultural duty of the occupying power to bring into his own country for +reasons of salvage objects of special scientific and artistic value. +This is not an inadmissible “seizure” (Article 56, Paragraph 2, Rules of +Land Warfare), because this term could only apply to acts which are +anti-cultural, not to acts which are procultural. (See Scholz, as above, +Page 37). + +Finally, I want to refer to Document Number 1109-PS, a report according +to which scientific institutes that had been saved were ready to be +taken back to the Ukraine immediately after the hoped-for re-entry of +the troops. I consider it completely impossible to read anything about +looting into this clear text. + +Certainly, in the East great quantities of cultural objects of +considerable value were destroyed by direct military actions, or by +wanton destruction, or looting. It would be a fundamental +misconstruction of the true facts of the case, and a great injustice, if +these losses should be charged to the account of the Einsatzstab and its +chief, for his efforts went exactly in the opposite direction. + +In the West (I refer to the testimony of the witness Robert Scholz of 19 +June 1946, Document Number Rosenberg-41), the case was different but, in +my opinion, here also the defendant cannot be charged with looting and +robbing objects of art. When in the summer of 1940 the inhabitants of +Paris, with the exception of the Jews, had once more returned, somebody +conceived the idea of searching the now ownerless apartments, houses, +and palaces for books and libraries and of taking to Germany whatever of +this scientific material was of interest. From various branches of the +Armed Forces came the report that especially in Jewish-owned palaces +there were collections of objects of art which one could not guarantee +to remain intact in case of a long occupation. Thereupon, Rosenberg made +the proposal that his Einsatzstab be allowed to direct its attention to +objects of art and to take them into its custody, which was then ordered +by Hitler. What did the Einsatzstab do with these objects of art? It set +up an accurate card index containing the names of the particular owner +of each picture, photographed the art objects, scientifically appraised +them, repaired them expertly insofar as was necessary, packed them +carefully and shipped them to the Bavarian castles of Neuschwanstein and +Chiemsee. Because of the danger of air raids, they were then stored in +an old Austrian mine. Rosenberg attached great importance to keeping +separate the objects cared for by the Einsatzstab, and not to have them +mixed with the large-scale purchases which Hitler made for the proposed +gallery in Linz. + +Was that looting, robbery, theft? Looting is the indiscriminate and +wanton carrying-off of objects in situations involving general distress +and danger. Robbery is carrying off by force. Theft is carrying off +without force. In all cases intent must exist to appropriate the object +illegally for oneself or somebody else. What intent did Rosenberg have? +He never denied that he and his co-workers had hopes of the pictures +remaining in Germany. Perhaps as compensation or as a security for the +peace negotiations, but in any case his intent was only directed at +confiscating and safeguarding the objects and it has been proved that +the question of what should be done with the confiscated items was left +open until the end and that no decision was made on it. It is absolutely +certain that Rosenberg did not have the intention of appropriating the +things for himself or anybody else. If Rosenberg had been a plunderer of +objects of art, he certainly would not have had exact notations made +concerning dates and place of confiscation and names of the owners. As a +precaution, however, I should also like to point out that because of the +flight of their owners the objects were virtually ownerless, and that +the question of the lack of a possessor and of the legality of their +acquisition by Rosenberg cannot be judged by normal circumstances, but +must be judged according to the extraordinary circumstances of the war. +If the Prosecution claims that public and private objects of art were +stolen at random, I should like to reply to the statement that only +Jewish possessions, and indeed the specified ownerless objects were +confiscated. Above all it is not true that state-owned property was also +touched. Finally he did not act on his own responsibility but in +carrying out a governmental order, and I want to ask that the fact be +not overlooked that Rosenberg acted without any egotistical motive. Not +a single picture passed into his private possession; he did not gain a +single Reichsmark from this transaction involving millions, and after +all, all the artistic and cultural property has been found again. I +would like to thank the French Prosecution for having acknowledged this +fact here publicly. + +Göring supported the work of the Einsatzstab and, as he admits, +“diverted” some objects for his own use, with the Führer’s approval. +This disturbed Rosenberg because the Einsatzstab was in his name, and he +declared that as a matter of principle he did not want to give anything +even to the museums, that his task was purely one of registration and +safeguarding. The Führer should have the final decision on these works +of art. Rosenberg could not undertake anything against Göring, but he +ordered his deputy Robert Scholz at least to make an accurate inventory +of what was given to Göring, and to have the latter sign a receipt, +which he did. Thus, most certainly it cannot be proved that Rosenberg +had the intention of illegally appropriating the objects of art for +himself or for somebody else. Furthermore, Robert Scholz confirmed that +Rosenberg also forbade all his assistants to acquire any objects of art +or culture even by virtue of an official appraisal (Document Number +Rosenberg-41). + +The Prosecution says that with the Rosenberg Einsatzstab a gang of +vandals broke into the European House of Art in order to plunder in a +barbarous way. If one contemplates the tremendous work of drawing up an +inventory, of cataloging, of restoration, and of scientific appraisal, +and if one finally bears in mind that all these treasures were most +carefully stored away, and certainly came through the war better than +would have been the case if the German authorities had not taken care of +them, then I believe that, objectively speaking, one can use any term +but that of “vandalism.” + +THE PRESIDENT: I think this would be a good time to break off. + + [_A recess was taken._] + +DR. THOMA: Rosenberg is also especially charged with looting furniture. +He allegedly ransacked the contents of 79,000 Jewish-owned homes, among +them 38,000 in Paris, and took the loot to Germany. Unquestionably, +these measures were taken for the benefit of air-raid victims; in the +cities which had been destroyed by air warfare new homes were set up for +the homeless. It was in line with National Socialist mentality and it +must certainly be morally condemned that the confiscation was limited to +Jewish property. The essential question, however, is whether the +confiscation was at all legal. In all my statements I have avoided +trying to excuse a weak legal position with a state of military +emergency, and I do not wish to do it at this point either, for, as an +expert on international law states, “The state of emergency is the lever +by means of which the entire body of martial law can be torn from its +hinges.” In this case, does not the justification of national and +military necessity exist, did not air warfare bring intense and general +distress to Germany? + +One might object that such distress could have been ended by +unconditional surrender. In my opinion, however, the above-mentioned +justification cannot be denied to the defendant by this reference to +unconditional surrender, entailing the Reich’s abandonment of its own +existence, its independence, and its own vital interests. The +appropriation of enemy private property took place in application of a +right of requisitioning, which was extended beyond the legal terms of +martial law and justified by the state of emergency. I venture to assert +that his procedure of confiscating furniture, in view of the devastating +effects of air warfare against Germany, was not contradictory to “the +customs among civilized peoples,” “the laws of humanity,” and “the +demands of the public conscience” (Marten’s clause in the preamble to +the agreement concerning the Laws and Customs of Land Warfare; see +Scholz, in the afore-mentioned book, Page 173). + +May it please the High Tribunal, I shall now pass on to the Norway +operation. The Prosecution characterizes Rosenberg and Raeder as the +most energetic conspirators in the Norway operation, and later in the +same matter calls Rosenberg a “dealer in high treason.” The opinion of +the Prosecution and also the assumption of the present Norwegian +Government (Norwegian Report of 13 October 1945, Document Number TC-56) +are obviously to the effect that the Party’s Foreign Political Office, +of which Rosenberg was the head, and Quisling had plotted the war +against Norway in mutual conspiracy. I believe that of all the charges +against Rosenberg hitherto dealt with, none has less foundation than +this one. On the basis of the few documents which have been submitted to +the Court, in my opinion the case could doubtlessly be cleared up in +favor of the defendant. + +There existed a Foreign Political Office of the Party, which had the +task of informing foreign visitors about the National Socialist +movement, of referring any suggestions to the official offices, and +otherwise of functioning as a central office of the Party for questions +of foreign policy. The special interest, and I may say the special +sympathy, of the leading men of the Party and the State was directed +toward the Scandinavian countries. It was specifically in this direction +that the Foreign Political Office placed the main emphasis on the field +of cultural policy. The already existing “Nordic Society” was expanded, +the birthdays of great Scandinavian scientists and artists were observed +in Germany, a great Nordic music festival was held, and so forth. The +relations took on a really political note only with the appearance of +Quisling, whom Rosenberg had seen for the first time in 1933 and who +then, in 1939, 6 years later, looked up Rosenberg again after the +convention of the Nordic Society in Lübeck; the former spoke of the +danger of European entanglements and expressed the fear that Norway was +in danger of being drawn into them. He then feared above all a +partitioning of his country in such a manner that the Soviet Union would +occupy the northern and England the southern part of Norway. + +Quisling again came to see Rosenberg in Berlin in December 1939. The +latter arranged for a conference with the Führer. Hitler declared that +he would by far prefer to have Norway remain completely neutral and that +he did not intend to extend the theater of war and involve more nations +in the conflict, but he would know how to defend himself against a +further isolation of Germany and further threats against her. In order +to counteract the increasing activity of enemy propaganda, Quisling was +promised financial support of his movement, which was based on the +pan-Germanic idea. The military treatment of the questions now taken up +was assigned to a special military staff; Rosenberg was to deal with the +political aspect, and he appointed his assistant Scheidt to maintain +liaison. Hagelin, a Norwegian confidential agent of Quisling’s, in +January 1940 gave Rosenberg some more disturbing reports on the feared +violation of neutrality by the Norwegian Government, and Rosenberg +passed them on to Hitler. After the _Altmark_ incident, Hagelin, who +moved in Norwegian Government circles, intensified his warnings to the +effect that the Allies had already begun to examine the Norwegian +seaports for disembarkation and transportation possibilities; in any +case, the Norwegian Government would be satisfied with protests on +paper, and Quisling was indicating that any delay in undertaking a +counteraction would mean an exceptional risk. Rosenberg again handed the +reports immediately to Hitler. If he had not done so that would have +been downright treason to his country. The German counterblow followed +on 9 April 1940, and Rosenberg learned about it from the radio and the +newspapers like any ordinary citizen. After his above-mentioned report, +which he made in the line of duty, Rosenberg, did not participate in +either diplomatic or military preparations. + +Should there still be any doubt that in the Norwegian case Rosenberg was +only an agent who forwarded information to Hitler, and not an +instigator, conspirator, or traitor, I should like to refer to two +documents. First, to Document Number C-65, Rosenberg’s file note +concerning Quisling’s visit. Obviously, it is the information on +Quisling which Hitler had requested from Rosenberg. If Rosenberg had +been on closer terms with Quisling, he certainly would have been only +too glad to inform Hitler about it. Rosenberg had only heard of a +fantastic and impracticable plan of Quisling’s for a _coup d’état_ +(occupation of important central offices in Oslo by sudden action, +supported by specially selected Norwegians who had been trained in +Germany, afterward having the German fleet called in by a newly formed +Norwegian Government). However, an earlier report of Quisling appeared +less fantastic to Rosenberg; according to this—names being +given—officers of the Western Powers traveled through Norway as +consular officials, ascertained the depth of the water in ports of +disembarkation, and made inquiries into the cross-sections and +clearances of railway tunnels. This was the true and only reason for +everything Rosenberg did in the Norwegian matter. + +The second document is the report concerning “The Political Preparation +of the Norway Operation” (Document Number 004-PS, Exhibit Number +GB-140), a report from Rosenberg to Hess of 17 June 1940. In this +interdepartmental report there is also nothing which deviates from +Rosenberg’s own trustworthy statement and which would allow him to +appear as an instigator of war and of high treason. Rosenberg was not +called into any political or military discussion concerning Norway. +Thus, what criminal act did Rosenberg commit? Was it criminal that he +tried “to gain influence in Norway” (Document Number TC-56), or that +with his knowledge the Foreign Office gave subsidies to Quisling? +Finally, I should also like to point out that later on, after the +operation had succeeded, Rosenberg was in no way entrusted with an +office or function with regard to Norway; that even the appointment of a +Reich Commissioner for Norway was carried out without consulting him. + +I shall not deal with the case of Minister Goga, which I have set forth +in detail, but I ask the High Tribunal to consider it as having been +dealt with. Now I turn to the topic: Persecution of the Church. + +The Prosecution maintains that Rosenberg, together with Bormann, issued +the orders for religious persecutions and induced others to participate +in these persecutions. However, not a single order of that kind is +known. There were presented only letters by Bormann, partly to +Rosenberg, partly to others, from which no charges against Rosenberg can +be drawn. On the contrary Rosenberg was repeatedly reproached, as on one +occasion when in the presence of Hitler he praised a book by Reich +Bishop Müller (Document Number 100-PS); another time when Rosenberg gave +Reich Bishop Müller instructions to work out directives for thoughts +regarding religious instruction in schools (Document Number 098-PS); +once again when Rosenberg sponsored a strictly Christian work by General +Von Rabenau. + +As a witness Rosenberg himself declared (Volume XI, Page 461) that he +had opposed propaganda advocating withdrawal from the Church and had +never called for state and police measures against his opponents in the +fields of theology and research, and particularly that he had never used +the Police for suppressing those who were opponents of his book _The +Myth of the 20th Century_. In December 1941, as Reich Minister for the +Occupied Eastern Territories, he issued an edict for Church toleration +(Documents Number 1517-PS and 294-PS). Rosenberg had nothing to do with +arrests, the deportation of priests, and persecution of the Church. He +had no part either in the negotiations with the Vatican over the +Concordat or in the assignment of the Protestant Reich Bishop; neither +did he take any part in measures which were hostile to the Church, and +which were later carried out by the Police. He never participated in any +other administrative or legislative anticlerical measures. + +In my opinion it is quite impossible, for lack of documentary evidence, +to construe from what Rosenberg thought and said about religious and +philosophical matters—which I will quote presently—that he conspired +toward a political suppression of religion by force. The only document +(Number 130-PS) pointing in this direction was withdrawn by the American +Prosecution itself before I was obliged to draw attention to its being a +pamphlet directed against Rosenberg. + +His book _The Myth of the 20th Century_, which is allegedly written for +the reshaping of the denominations in the direction of a Germanic +Christianity, is moreover chiefly addressed to those who had already +broken with the Church. “No consciously responsible German,” says +Rosenberg at one place in it, “should suggest withdrawal from the +Churches to those who are still believing members thereof” (Document +Number Rosenberg-7, Document Book 1, Page 122), and once again: “Science +would never have the power to dethrone true religion” (see as above, +Page 125). His writings are not addressed to the faithful churchgoers of +today in order to hinder them in the course of their chosen spiritual +life, but to those who have already discarded their religious faith +(Document Number Rosenberg-7, Document Book 1, Page 125). In his +speeches he upheld the view that the Party is not entitled to establish +norms in metaphysical matters which contest immortality, et cetera. +After he had been assigned to supervise ideological education, he said +explicitly in his Berlin speech of 22 February 1934: “No National +Socialist is allowed to engage in religious discussions while wearing +the uniform of his Movement,” and he declared at the same time that “all +well-disposed persons should strive for the pacification of the entire +political and spiritual life in Germany” (Document Number +Rosenberg-7(a), Document Book 1, Page 130). That in this respect, too, +things developed along different lines is not due to the desire or +influence of Rosenberg. + +Moreover, I need make only brief allusion to the fact that it is a +question of the 1000-year-old problem of relations between the clerical +and so-called temporal powers. The struggle of emperors, kings, and +popes in the Middle Ages; the French Revolution with the shooting of +priests; Bismarck’s clerical controversies; the secular legislation of +the French Republic under Combes; all those were things, which from the +standpoint of the Churches ... + +Mr. President, may I make a brief statement by way of explanation? I +wanted to say that I have concluded this topic, that I do not wish to +concern myself with the problem of Church persecutions any further. I +have finished with it. I am coming to the topic of ideology and general +politics. + +Ideology and education have been nothing but a means of obtaining power +and consolidating that power; uniformity of thinking has played an +important part in the program of the conspiracy; the formation of the +Armed Forces has only been possible in conjunction with the ideological +education of the nation and Party—so says the Prosecution (Brudno, on 9 +January 1946). And continuing its attacks against Rosenberg, the +Prosecution proceeds by saying that Rosenberg’s ideas formed the +foundation of the National Socialist movement, and that Rosenberg’s +contribution in formulating and spreading the National Socialist +ideology gave foundation to the conspiracy by shaping its “philosophical +technique.” + +I think that one will have to take care, in judging Rosenberg’s case, +not to yield to certain primitive ways of thinking and become a victim +of them: First of all an exaggeration of the conception of ideology and +the inexact use of that concept. At best it was a political philosophy +which was hand in glove with Hitler’s political measures and which +Hitler himself preached in his book _Mein Kampf_, but it was not an +ideology in an all-embracing sense. It is true that National Socialism +endeavored to create a spiritual philosophy and an ideology of its own, +but it had not reached that stage yet by far. Rosenberg’s book _The Myth +of the 20th Century_ is an attempt in that direction, being a personal +confession, without any suggestion of political measures. Therefore, his +philosophy cannot have formed the ideological basis of National +Socialism. In addition there is a total lack of proof that a straight +spiritual line, a clear spiritual causal connection, exists between the +conceptions of Rosenberg and the alleged and actual crimes. + +If one goes to the trouble of looking through the book, _The Myth of the +20th Century_, one will immediately observe that though there is some +philosophizing in the National Socialist way, it would be, however, pure +fiction to affirm that there is any dogmatic formulation of a tangible +program in this book, or that it is a foundation for the activities of +the responsible leaders of the Reich in this World War. Another mistake +of National Socialism was perhaps the boundless unification and +simplification: people were made uniform; thinking was made uniform; +only one uniform type of German was left. There was also alleged to be +only one National Socialist way of thinking, and only National Socialist +ideology. But in spite of this, as we see today, the leaders were +frequently of different opinions on essential questions. I will recall +the question of the policy in the East. Here too, there seems to be +danger of accepting this way of thinking, of observing everything +through the spectacles of uniformity, and of saying: One idea, one +philosophy, one responsibility, one crime, one punishment. Such a +simplification, apart from its primitive nature, would certainly also +constitute a great injustice toward the Defendant Rosenberg. + +Finally, when one hears how the Prosecution attacks “Germanic +Christianity,” the “heathen blood myth,” making much of Rosenberg’s +expression, “the Nordic blood is the mystery which has superseded and +overpowered the old sacraments,” one feels inclined to close one’s eyes +for a moment and to picture oneself attending a session of the +Inquisition in the Middle Ages where they are about to sentence +Rosenberg to the stake as a heretic. Yet nothing must be farther from +the Tribunal’s mind than to harbor thoughts of intolerance, since here, +in spite of all attempts by some of the prosecutors, it is not +ideologies but crimes which are involved. + +In the Defendant Rosenberg’s case it is a question of whether by his +teachings he was guilty of preparing and promoting crimes. The +Prosecution has brought forth arguments to this end, but have not proved +it, while I can prove the opposite merely by pointing to Rosenberg’s +activities in the East. Had he been the bearer and apostle of a criminal +idea, he would have had an opportunity, such as no criminal has ever yet +had in world history, to indulge in criminal activities. I have stated +explicitly that in his case it was just the opposite. So when the bearer +and apostle of an idea himself has the greatest of opportunities and yet +in practice himself behaves morally, then his teachings cannot be +criminal and immoral either. Above all, he cannot then be punished as a +criminal on the basis of his teachings. What criminally degenerate +persons practiced as alleged National Socialism cannot be laid to the +charge of Rosenberg. Moreover, Rosenberg’s speeches in three volumes, +which express what he taught in the course of 8 years, bear witness to +the honorable nature of his endeavors. + +Thus, if we relinquish the false conception of uniformity: One party, +one philosophy, one ideology, one crime—and we will have to, in view of +the indisputable fact that Rosenberg himself never pursued a policy of +extermination, destruction, and enslavement in the East—we shall have +to admit that the facts of the terrible central executive orders and of +Rosenberg’s philosophy are not identical, and on these grounds alone the +conclusions of the Prosecution are invalid. + +Karl Marx teaches that historical events and political social reality +are conditioned by the mere casual play of materialistic forces. Whether +Marx in addition acknowledges the independent influence of man and ideas +on history is at least doubtful. On the other hand, Rosenberg stresses +emphatically the influence and the necessity of the highest ideas in the +history of peoples. But Rosenberg does not overlook the fact that every +event in history is the result of a totality of acting forces. The will, +the passions and the intelligence of the people involved work together +to form a historical process which cannot be calculated in human terms. +It has already been pointed out that, just as little as Voltaire’s and +Rousseau’s ideas can be recognized as the causes of the French +Revolution, and the slogans of “Liberty, Equality, and Fraternity” be +taken as the cause of the Jacobinic terror, as little as one can say +that Mirabeau and Sièze had wanted or plotted such a blood bath, so +little can one ascribe to Rosenberg as his moral or even criminal guilt +that which National Socialism became during its development through the +decades. In other words, I believe it is as unjust as it is unhistorical +to ascribe today, in retrospect, the negative aspects of National +Socialism, which were connected with the terrible collapse, to a plan +desired from the outset and emanating from Rosenberg’s ideas. + +Therefore, in considering Rosenberg’s work the mistake of a +standardization which does not correspond to reality is added to the +further mistake of mechanization; there is neither a mechanical man nor +mechanical history. And, finally, the construction of the Indictment is +also an absolutely negative one; it views the defendant from the +standpoint of political polemics and is impressed by the excitement of +people in these excited times. I must briefly take exception to this +distortion of the defendant’s mental traits. + +The spiritual state of the period after the first World War and even of +the preceding period, which gave birth to the defendant’s ideas, are +known to all of us only too well: The turmoil in the spirit and soul of +man brought about by the technical age, his hunger and thirst for a new +spirit and a new soul; liberty was the slogan and a “new beginning” the +impulse which directed the will of youth. Its longing and enthusiasm +were aimed at nature. The thoughts and wishes of this generation were +led into political paths by the contrast between rich and poor, which +youth considered unjust and sought to bridge through socialism and the +fellowship of the people. In Germany the development along political +lines was given further impetus by the national misfortune of 1918-19 +and the Treaty of Versailles, which was likewise felt to be unjust. The +idea of building German history through the union of nationalism and +socialism glowed unconsciously in the hearts of millions, as the +undisputed tremendous success of National Socialism proves. The +spiritual foundation was the desire for external and internal +self-assertion and love for one’s fellow countrymen and for the people +themselves, who had had to suffer so much torment and misery in history. + +The desire for self-assertion and love for one’s own people, together +with the whole system of National Socialist ideas, then developed in an +inexplicable manner into a furious conflagration. The most primitive +considerations of common sense were eliminated just as in a delirium; in +complete delusion everything was risked and everything was lost. + +The searching questions which present themselves to Rosenberg time and +time again are whether he could have done more for what he thought and +upheld as just and worthy; where he neglected essential things; where he +fell short of requirements; what negative symptoms, insofar as he had +knowledge of them, he should have paid more attention to. Can such +questions, which every person asks when he is crushed by disaster, be +considered as evidence for his objective guilt? I do not think so. On 17 +January 1946 the French Chief Prosecutor, M. de Menthon, stated the +following, which I quote (Volume V, Pages 378, 379): + + “We are rather facing systematic criminality which directly and + necessarily derives from a monstrous doctrine with the full will + of the leaders of Nazi Germany. The crime against peace, which + was undertaken, is immediately derived from the National + Socialist doctrine.” + +To refute this assertion I must briefly present this doctrine. I have +classified the National Socialist ideology—in accord, I believe, with +scientific opinions—under the so-called new romanticism. This trend, +which was grounded in fate and the necessities of history, had gone +through the whole civilized world since the turn of the century as a +reaction against rationalism and the technical age. It differs from the +old romanticism in that it adopts the naturalistic and biological +consideration of man and history. It is borne up by a confident faith in +the value and meaning of life and the whole of reality. It does not +glorify sentiment or intellect, but the innermost motives of man—heart, +will, and faith. This philosophy receives its National Socialist stamp +through the emphasis which is placed upon the mysterious importance of +peoples and races for all human experience and activity. It is in the +people, in the common possession of blood, history, and culture, that +the real roots of strength are thought to be found. Only by +participating in the movements of a people and its strength does the +individual serve himself and his generation. + +Rosenberg’s scientific contribution to the racial ideology consists in +his description of the rise and fall of great historical figures, who +sprang from races and peoples and set up definite standards in all +spheres: language, custom, art, religion, philosophy, and politics. +According to Rosenberg the efforts of the twentieth century to establish +a form for itself are a struggle for the independence of the human +personality. In Rosenberg’s opinion, its essence is the consciousness of +honor. The myth of national honor is at the same time the myth of blood +and race, which produce and support honor in its highest form. +Therefore, the struggle for honor in its highest form is also a +spiritual struggle with other systems and their maximum values. Thus, +intuition stands against intuition, will against will. + +Rosenberg expresses this thought in the following manner (_The Myth of +the 20th Century_, Introduction, Pages 1 and 2): + + “History and the task of the future no longer mean a struggle + between classes, no longer a struggle between Church dogma and + dogma, but the dispute between blood and blood, race and race, + people and people. And this means: A struggle between + psychologies.” + +Consequently, Rosenberg had, in any case, no ideas of genocide as +Raphael Lemkin expounds in _Axis Rule in Occupied Europe_, Page 81, +where he ends the above quotation after the words “race and race, people +and people,” but he believed in a struggle between psychologies, in +other words, spiritual controversy. + +I mention this spiritual trend in order to explain the peculiar fact in +National Socialism that political considerations born of the intellect +often gave way before the pathos of will and faith. In Rosenberg’s case +this danger did not appear so much since in making everything revolve +around the “soil,” that is, the fatherland, and its history and +peasantry as the force from which springs the essence of a race, he +remains in the sphere of life’s realities. Perhaps unaware of it +himself, he was nevertheless borne upward by this current. The question +arises as to what effects this ideology had on political life. + +It is clear that the emphasis on will and faith gave special weight to +political demands. After the Treaty of Versailles the political demands +of Germany were aimed at recovering freedom and equality among the +peoples as a still fettered great power. This had been the objective of +German statesmen even before Hitler. The other great powers had certain +misgivings about recognizing Germany again as such. Rosenberg fought to +remove these misgivings. His weapon was his pen. The Tribunal has +allowed me to present in evidence a group of excerpts from Rosenberg’s +speeches and writings. I submitted it in my Document Book 1, Volume II. +In view of the quantity of material and of my intention to submit only +the most important matter, I depend on the Court’s being familiar with +my document book. + +In the first place I wish to call attention to the effect which these +works had on German youth. I may recall the witness Von Schirach’s +testimony. I repeat verbally: + + “At conventions of youth leaders, at which he spoke once a year, + Rosenberg chiefly chose educational, character-building + subjects. I remember, for instance, that he spoke on loneliness + and comradeship, personality and honor, and so forth. At these + conventions of leaders he did not deliver any speeches against + Jews. As far as I remember, he did not touch on the religious + problem of youth either, in any case not to the best of my + memory. Mostly I heard him talk on such subjects as I have just + mentioned before.” + +The attitude of youth was actually better than before the taking over of +power. Idleness, the root of all evil, had ceased and had been replaced +by work, the fulfillment of duty, the aiming at ideals, patriotism, and +the will to get ahead. It was a fatality here too, that through Hitler’s +policy these values were directed in the wrong manner. + +The charges by the Prosecution that Rosenberg was the advocate of a +conspiracy against peace, of racial hatred, of the elimination of human +rights, of tyranny, of a rule of horror, violence, and illegality, of +unbridled nationalism and militarism, of a German master race, I could +already refute by pointing to the excerpts from _The Myth of the 20th +Century_, which the Prosecution itself has submitted as evidence for the +truth of its assertions. In reply to this, in order to refute this +assertion by the Prosecution, I want to point in particular to the +following facts: To prove Rosenberg’s honest struggle for the peaceful +existence of nations side by side I wish to refer to his speech in Rome +in November 1932 before the Royal Academy of Rome (reproduced in _Blood +and Honor_, Document Book 1, Page 150). In his speech in Rome Rosenberg +pointed to the fateful significance of the four great powers and +proclaimed—I quote his words: + + “Therefore he who strives in earnest to create a Europe which + shall be an organic unit with a pronounced multiplicity of form + and not merely a crude summation, must acknowledge the four + great nationalisms as given to us by fate and must, therefore, + seek to give fulfillment to the force radiating from their core. + The destruction of one of these centers by any power would not + result in a ‘Europe,’ but would bring about chaos in which the + other centers of culture would also have to perish. In reverse + it is only the triumph of the radiations in those directions + where the four great forces do not come into conflict with each + other which would result in the most dynamic force of creative + being and organic peace, not an explosive forced situation such + as prevails today, whereby it would guarantee to the small + nations more security than appears possible today in the + struggle against elementary force.” + +To this line of thought Rosenberg, as Chief of the Foreign Political +Office of the Party, remained true. Unfortunately, he could only work +for it through his words. No witness could confirm in this courtroom +that Rosenberg had any influence on actual foreign policy, whether it +was directed by Neurath, Ribbentrop, Göring, or Hitler himself. Neither +in the Austrian, nor in the Czech, nor in the Polish, nor in the Russian +subject matter has his name been mentioned in connection with the charge +of participation in aggressive wars. Everywhere he was placed before +accomplished facts. In the war against the Soviet Union he received his +orders only when the war against Russia had already been established as +an acute possibility. He did not stir up the Norwegian campaign, but +passed on personal information in accordance with his duty. + +Now, as regards Rosenberg’s speeches and writings on the problems of +general foreign policy, he advocated the Anschluss of the Austrians, who +had been forcibly excluded from the Reich, as a demand born of the right +to self-determination which had been proclaimed by the Allies +themselves. The revision of Versailles was a postulate of justice +against a violation of the Treaty of 11 November 1918. To advocate the +German Armed Forces was, in view of the nondisarmament of the other +powers, a defense of the solemnly promised equality of rights. + +I shall now take up the charge of racial hatred. + +Rosenberg’s opinions in regard to the race question were the result of +racial research of international scientists. Rosenberg repeatedly +asserts (I refer again to the opinion stated in Document Book 1, Volume +II) that the purpose of his racial political demands was not contempt of +race, but respect for it. I quote Page 70: + + “The leading moral idea of an approach to world history based on + the laws of heredity belongs to our times and to our generation, + being in full accord with the true spirit of the modern eugenics + movement with regard to patriotism, that is, the upholding and + expansion of the spiritually, morally, intellectually, and + physically best hereditary forces for our fatherland: only in + this way can we preserve our institutions for all future times.” + +These words embody the main theme of his demands, though their +originator was not Rosenberg, but Henry Fairfield Osborn, Professor at +Columbia University, who wrote them in discussion of the book by his +colleague in science, Madison Grant, _The Decline of the Great Race_. +This research, long before the existence of the Third Reich, led to +eugenic legislation in other countries, in particular to the American +Immigration Law of 26 May 1924, which was aimed at a strong reduction of +immigrants from southern and eastern Europe while favoring those from +the north and west of Europe. + +I do not think I have to say that I am not hereby defending the murders +of those mentally diseased in Germany as an alleged eugenic measure. +With this measure, too, Rosenberg did not have the slightest connection. + +For Rosenberg it was a question of the spiritual strengthening and +consolidation of the German nation, indeed of the Aryan race. He would +like to have his ideology considered in that light, above all _The Myth +of the 20th Century_. His preaching of the significance of race in +history did not call—I stress this again—for race contempt, but for +consideration and respect of race, and demanded the acknowledgment of +the racial idea only by the German people, not by other nations. He +considered the Aryan nations as the leading ones in history. And if in +doing so he underestimated the significance of other races, as for +instance the Semitic ones, he, in his praise of Aryan races, did not +think of the German nation alone, but of the European nations in +general. I refer to his speech in Rome of November 1932. + +I am keeping within the framework of historical truth in pointing to the +fact that anti-Judaism is not an invention of National Socialism. For +thousands of years the Jewish question has been the minority problem of +the world. It has an irrational character which can be understood to +some extent only in connection with the Bible. Rosenberg was a convinced +anti-Semite, who in writing and speech gave expression to his +convictions and their foundations. I have already emphasized that even +such different personalities as Von Papen, Von Neurath, and Raeder are +still of the opinion that the predominance of the Jewish element in the +entire public life had reached such proportions that a change had to +come about in this respect. The concrete result of that predominance, +the fact that the Jews in Germany when attacked knew how to repay in +kind, sharpened the anti-Semitic fight before the accession to power. + +I wanted to present to the Tribunal a selection of Jewish literary +attacks on the national feeling at that time, but the Tribunal ruled +that my application was irrelevant; as these writings were not +introduced as evidence I cannot speak about them. It is, however, an +injustice to Rosenberg to assert that blind hatred of the Jewish race +had goaded him into that controversy. He had before his eyes concrete +factual evidence of the disintegrating activities of Jews. + +It appeared as if the Party program of placing Jews under a generous law +of aliens would be realized. It is true that Goebbels at that time +arranged a one-day boycotting of Jewish stores. Rosenberg, however, in +his speech of 28 June 1933, the anniversary of the Versailles Treaty, in +the assembly hall of the Reichstag in the Kroll Opera House, declared +that it was no longer necessary that in the capital of the Reich 74 +percent of all lawyers should be Jews, and that 80 to 90 percent of the +physicians in Berlin hospitals should be Jewish; about 30 percent of +Jewish lawyers in Berlin would suffice amply. In his speech at the Party +Rally in September 1933 Rosenberg stated in addition, and I quote: + + “In the most chivalrous way, the German Government has excluded + from the percentage stipulations those Jews who have fought for + Germany at the front, or who have lost a son or a father in the + war” (Document Book 1, Page 153a). + +In his speech at the Kroll Opera House Rosenberg gave the reason for +this measure, saying that there was no intention thereby to discriminate +against a whole people, but that it was necessary for our younger German +generation, who for years had had to starve or beg, now to be able to +obtain bread and work too. But despite his strong opposition to the Jews +he did not want the “extermination” of Jewry, but advocated as the +nearest aim the political expatriation of Jews, that is, through +classifying them by law as aliens and giving them protection as such. In +addition, he granted to the Jews a percentage access to nonpolitical +professions, which still by far exceeded the actual percentage of Jews +in the German population. Of course, his final aim was the total +emigration of the Jews from Aryan nations. He had no understanding and +appreciation of how great a loss to the Aryan nations themselves such an +emigration would be in cultural, economic, and political respects. But +one will have to admit that he believed that such an emigration would +prove useful for the Jews themselves, first, because they would be set +free from all anti-Semitic attacks, and also, because in their own +settlement area they might live unhampered and according to their own +ways. + +The dreadful development which the Jewish question took under Hitler, +which he justified as being a reaction against the policy pursued by +emigrants, was never more regretted by anyone than by Rosenberg himself, +who blames himself for not having protested against the attitude of +Hitler, Himmler, and Goebbels as firmly as he protested against Koch’s +actions in the Ukraine. Nor does Rosenberg hesitate to admit that his +suggestion to Hitler to shoot 100 Jews instead of 100 Frenchmen after +the recurring murders of German soldiers was an injustice born of a +momentary feeling—despite his belief in its formal +admissibility—because, from the purely human standpoint, the real basis +for such a suggestion was lacking, namely, the active participation of +those Jews. + +I have returned to this case again, as in my opinion it is the only +instance where Rosenberg desired retribution by the death of Jews. On +the other hand, one must insist with the greatest emphasis that there is +no proof of Rosenberg’s having been aware of the extermination of five +million Jews. The Prosecution accuses him of making preparations for an +anti-Semitic congress as late as 1944, which did not take place only +because of the course of the war. What point could such a congress have +had, had Rosenberg known that the majority of the Jews in Europe had +been exterminated already? + +Rosenberg had no faith in democracy, because in Germany it led to a +splitting up into numerous parties and a constant change of government, +and finally made the formation of an efficient government impossible. +Another reason for his not having faith in democracy was that non-German +democratic powers did not stand by their democratic principles in +certain cases where they might have been of benefit to Germany, for +instance in 1919, when Austria was willing to be incorporated in +Germany, and later on at the plebiscite in Upper Silesia. But Rosenberg +did not for that reason turn toward tyranny. In connection with +Paragraph 25 of the Party Program he said in his comments, on Page 46: + + “This central power”—referring in this case to the Führer’s + power—“should have as advisers representatives of the people as + well as those councils which had evolved in the course of time” + (Document Book 3, Page 6). + +And in his speech in Marienburg on 30 April 1934 on the state of the +German Order, he said that the National Socialist State must be “a +monarchy on a republican foundation.” I quote: + + “From that standpoint the State will not become a deified end in + itself, neither will its leader become a Caesar, a God, or a + deputy of God” (Document Book 1, Page 131). + +In his speech on German law of 18 December 1934, Rosenberg stressed: + +“In our eyes the Führer is never a tyrannical commander” (Document Book +1, Page 135). Only in such terms was a protest against the development +of tyranny possible. + +The development passed over Rosenberg and degenerated. Rosenberg himself +learned this while acting as Minister for the East. Rosenberg was an +idealist, but he was not the unscrupulous man who inspired the State and +the Führer to commit crimes. I believe, therefore, that he should not be +included in Mr. Justice Jackson’s Indictment (Page 8), where it says +that Rosenberg belonged to those men in Germany who have been “the very +symbols of race hatred, of the rule of terror and violence, of arrogance +and cruel power.” + +In looking through Rosenberg’s writings one finds, on the contrary, +statements and expressions which give a decided impression of tolerance. +He says, for example, in his Myth, of the national Church which he +aspired to: + + “The German Church cannot pronounce compulsory dogmas which + every one of its followers is compelled to believe at the very + risk of losing his everlasting salvation.” + +In his speech on ideology and dogma at the University of +Halle-Wittenberg, he called for tolerance toward all denominations with +a demand for “inner respect for every genuine denomination.” In his +speech on German intellectual freedom of 6 July 1935 he also spoke up +for the freedom of conscience. No document was presented which contained +a request by Rosenberg for criminal persecution of one of his numerous +ideological opponents, although he might easily have been prompted to do +so by their sharp attacks on his opinions. + +Further, the Prosecution accused him of promoting militarism. Rosenberg +was indeed an admirer of the soldier’s profession and a soldierly +attitude toward life, but he also admired the peasant’s standards as the +basis of the national character. He advocated the creation of a people’s +army, both as the outward expression of Germany’s capacity as a +political ally and for the purpose of training and educating the people +at home. However, he denies having contemplated world conquest. On this +point I can refer to his speech on Germany’s Position in the World of 30 +October 1933. There he offered peace to Russia on the occasion of the +German withdrawal from the League of Nations (Document Book 1, Page +147). I shall quote this passage, for it also proves that National +Socialism did not desire to interfere in the affairs of other countries: + + “We are ready at any time to maintain absolutely correct + relations with Soviet Russia, because naturally we do not + necessarily want to modify an ideology in the field of foreign + policy and foreign relations.” + +In the same speech he emphasizes that the avowal of an ideology he +describes as racial science is “not meant to be an expression of racial +hatred, but an expression of racial respect” (_Blood and Honor_, Page +377). + +Mr. Justice Jackson called Rosenberg’s nationalism a “wild” one. +Rosenberg was passionate, but he wanted thereby to overcome class +conflict in the nation, which threatened its existence. For a clearer +understanding of the facts it may also be said ... + +THE PRESIDENT: Dr. Thoma, the Tribunal would like you to finish your +speech before lunch, if you could possibly summarize some parts of it. I +don’t know whether that is possible. + +DR. THOMA: I shall try to do that, Mr. President. + +I once more refer to Mr. Jackson’s statement that Rosenberg’s +nationalism, or militarism, was “wild.” In this connection I should like +to refer only to the fact that such nationalism was a compensatory +symptom, which is easily found in a conquered country. + +The accusation dealing with anti-Christianity and neopaganism is +something which I have already mentioned, and I should just like to +refer to it. I have dealt with the term “master race,” mentioning the +fact that these words are not found in Rosenberg’s works at all. + +Concerning the Party Program, I stated that Rosenberg did not draft it, +but only supplied a commentary upon it, and that it is not a question of +what is contained in the Party Program, but rather with what its effect +was. I referred to the witness Funk, who stated that his first action +and his first program as Minister of Economics had no reference at all +to the Party Program, but was simply democratic and liberal. + +The Party Program was adhered to neither in a positive nor a negative +sense. The government was carried on just as in other states, on the +basis of general necessity. + +May it please the Tribunal, I shall turn to the charge that Rosenberg +was the delegate of the Führer for the supervision of all education and +spiritual ideology within the NSDAP. During the reading of the affidavit +by Dr. Eppe I pointed to the fact that Rosenberg, as head of this +office, had no executive power, and that Rosenberg interpreted the +duties of his office in such a way that he published magazines on all +cultural and scientific topics, especially the _NS Monatshefte_, the +polemic political contents of which, after 1933, were more and more +superseded by historical, scientific, and cultural subjects. On the +basis of all the literature at our disposal it is not in accordance with +the facts that Rosenberg interpreted his position as one from which to +sow hatred. After 1933 he mainly endeavored to intensify and promote new +definite talent. I have said in addition that this nonpolitical office +concentrated its efforts on exercising a regulating and guiding +influence on all noble and cultural values which manifested themselves. + +May it please the Tribunal, I shall now turn to the topic: “Morality as +a basis of the Indictment.” I should like to ask the High Tribunal, even +though I do not propose to read this passage, to consider it as having +been presented by me. I refer to Pages 82a through 82g, and I should +like to ask the High Tribunal for permission not to read this matter and +yet to have this matter considered as having been submitted in its +entirety and read into the record. I shall now sum up ... + +THE PRESIDENT: Dr. Thoma, all the speech will be taken as being +presented to the Tribunal. By your summarizing it, you are not excluding +it from the record of the Tribunal. The Tribunal will take note of it +all. + +DR. THOMA: Thank you, Mr. President. + +I shall now sum up in conclusion, and I should like to point out the +following: + +[sm type begins]... that he is to be understood as a phenomenon of +psychic compensation, as often appears in a conquered people. In +addition, Germany, situated in the middle of Europe, was always exposed +to so many political and military dangers that military circles in +Germany, particularly after the entrance into the Ruhr in 1923, were +necessarily particularly sensitive on national questions. As a German +Balt he was brought up in a national way of feeling that led him to +expect more of self-assertion and mobilization for defense than of the +disappointments resulting from the international negotiations carried on +up to that time. He was always ready for an understanding based on equal +representation (Document Number 003-PS, Exhibit Number USA-603).[sm type +ends] + +[sm type begins]Rosenberg has been further reproached with +anti-Christianity and neopaganism. It is true that this reproach was not +brought against his theory, but in connection with the persecution of +the Christian religion in all its forms which later resulted. Rosenberg +was an opponent of Christianity in its—as he sees them—present +historical forms, just as he was of Jewry. In place of Christianity he +strove for an idealistically, racially, and ethnically, conditioned +religion, an emotional religion of blood and soil.[sm type ends] + +[sm type begins]He thereby attacked both Christianity and Jewry +theoretically, and hoped that the Christian Churches would gradually +become extinct among the German people; yet it will always have to be +admitted that Rosenberg staged no violent persecution. He carried on +this battle with intellectual weapons. Here, too, since he expected +freedom of conscience for himself, he advocated freedom of conscience +for others, and pointed out that with his _Myth_ and his new +religiousness he did not wish to confuse Church believers but to create +new spiritual ties for those, too, who had ceased to be believers in the +Church.[sm type ends] + +[sm type begins]The term “master race,” to my knowledge, does not appear +in Rosenberg’s writings, nor does it fit into Rosenberg’s ideology, +which proceeds from the race as a general law. Therefore, Rosenberg +speaks of the Nordic, Mediterranean, Dinaric race, in relation to races +which are biologically different, not in the sense of an arrogant +judgment as to value, but in the sense of racial facts, in the sense of +honoring the entire human race of Europe.[sm type ends] + +[sm type begins]As far as the Party Program is concerned, despite the +assertions of the Prosecution, it was not he, Rosenberg, who designed +it. Like so many other things, the meaning and action of the Party +Program has also been overestimated and exaggerated. It was one of the +first deeds of the National Socialist Government to design a +reconstruction program, of which the Defendant Funk said that almost any +other liberal or democratic government could accept it also. In place of +breaking up capital investment, the reinstatement of a sound money and +credit system was demanded. I could go on quoting a number of examples, +for instance the program of aliens’ status for Jews, which was not +carried out. The Party Program was never adhered to subsequently either +in the positive or the negative sense. Rules were simply enacted as in +other states, too, based on the necessities of the moment.[sm type ends] + +[sm type begins]The entire ideology of the journalist and author +Rosenberg becomes intensified and is rendered more menacing to peace, +according to the Prosecution, by the fact that Rosenberg was nominated +the deputy of the Führer for the supervision of the entire intellectual +and ideological education of the NSDAP. How did this assignment come +about and what were the circumstances concerning it? On the basis of his +previous experience in the educational work of the Party, its +organizational leader asked Rosenberg whether he would not undertake a +common intellectual project. Rosenberg answered in the affirmative, if +the Führer so desired. Thereupon, on 24 January 1934, the Führer +appointed him chief of that office. It was a Party office and had +nothing to do with the schools, as is erroneously assumed. The office +had no right to issue directives to Reich offices; even any +correspondence with them had to be sent via the Party Chancellery. +Neither did it have any right to suppress books, et cetera. Even a right +to issue directives to the Party was not granted, the more so since the +branch school directors were also subordinated to the Reich leaders (SA, +SS, HJ). Therefore, from the very beginning Rosenberg did not consider +his work as representing the tasks of an intellectual police, but as an +executive and unifying work, as the central point of the expression and +realization of the factual and personal power of conviction and +initiative.[sm type ends] + +[sm type begins]He had no offices in the various Gaue, not even +individual representatives; he agreed to the Gau education leader as his +deputy at the same time, in order to maintain a connection with +practical education in the country.[sm type ends] + +[sm type begins]The office had many things to review in the course of +time, yet it remained limited in extent. It became subdivided into +various spheres of work; teaching and education proper, cultivation of +literature, the arts, cultural and general problems. About twice a year, +for the purpose of comparing tuition experiences, Rosenberg called +together the so-called “Working Community for the Instruction of the +Entire Movement.”[sm type ends] + +[sm type begins]In it were represented the educational deputies of the +political leadership and its various subdivisions. They reported on +their work and expressed their suggestions. On the basis of these +suggestions, Rosenberg frequently lectured in the Gaue on appropriate +topics, and likewise induced his collaborators to handle such questions +in all the subdivisions. These are the two educational meetings which +the Prosecution mentioned by reason of their alleged “broad influence on +the community schools” as an indication of criminal activity (Volume V, +Page 48). This generally executive work found expression particularly in +the periodicals of the offices of Rosenberg’s department; primarily in +the N. S. _Monatshefte_, which after 1933 acquired a gradually +increasing polemical political content in the interest of handling +historical, cultural, and scientific topics. _Die Kunst im Deutschen +Reich_ achieved special significance by simply offering the most +beautiful examples in the way of contemporary plastic art, excellently +presented without discussion. The _Bücher Kunde_ offered a monthly cross +section of writings and literary contributions. The monthly periodical +_Musik_ devoted itself above all to serious art, the cultivation of the +German classics, and without any pettiness toward new creations. The +journal _Germanisches Erbe_ published contributions on research in early +history, the _Deutsche Volkskunde_ was devoted to games, folk songs, +peasant customs. _Deutsche Dramaturgie_ described the ambitions and +problems of the contemporary theater.[sm type ends] + +[sm type begins]Besides this there were special exhibitions of the +lifework of great artists in Rosenberg’s exhibition building in Berlin, +and book exhibitions in various cities.[sm type ends] + +[sm type begins]It is simply not true if the Prosecution declares that +Rosenberg used his assignment to disseminate hatred. The essence of his +entire work after 1933 went toward a profounder and large-scale +promotion of new positive talents.[sm type ends] + +[sm type begins]Political polemics in these seven years had almost +entirely disappeared. But for the difficulties in the language, one +would find, in glancing through the journals and speeches, an honest +great effort, whether Rosenberg spoke to youth or to the technicians, +teachers, lawyers, workers, professors, women, at meetings of +historians, or before the Northern Society.[sm type ends] + +[sm type begins]The heads of his offices were instrumental in publishing +and promoting valuable works of art: Classics of music, history of the +German ancestry, world political libraries, development of German +peasantry, and others. In the present impassioned days one is not +interested to know of this side of somebody’s lifework, and therefore I +only touch upon it; but I wish to emphasize that it was just that which +seemed to Rosenberg, since 1933, to constitute the essential part of his +work, and similarly he intended to devote himself in his old age +entirely to scientific-cultural research and teaching. I shall permit +myself a few more words about this later.[sm type ends] + +[sm type begins]Contrary to some opinions which at first appeared +necessary, although some Individuals may perhaps have looked upon them +as rather petty, Rosenberg advocated at the universities of Munich and +Halle the right of examining new problems of our times as well as the +independence of scientific thinking. He declared that we would have to +“feel that we were the intellectual brothers of all those who once in +mediaeval times raised the flag for this free research” (Document Book +1, Page 134). Against certain attempts to identify certain scientific +physical theories with the Party, he protested in an official +declaration which rejected this danger of hairsplitting. “It is not the +task of the National Socialist movement,” he said in a speech about +Copernicus and Kant on 19 February 1939, “to make any regulations for +research other than necessarily connected with our philosophy of life” +(Document Book 1, Page 173).[sm type ends] + +[sm type begins]When a certain trend toward mass statistics, peak +figures for the number of visitors, et cetera, developed in the +otherwise desirable progress achieved by the German Labor Front, he made +a determined stand in favor of emphasis on the personal element. He +rejected this idea of “mass production” in an address to youth with the +words: “One cannot receive art and culture like mass-produced, +ready-made clothes in a department store” (Document Book 1, Page 155). +Today poisoning of this youth is imputed to him, but on the contrary he +asked (Document Book 1, Page 161) for comprehension in teaching on the +part of everybody to whose care young people are entrusted, and he +decidedly rejected any orders in the intellectual field.[sm type ends] + +[sm type begins]With regard to any form of collectivism, as has already +been mentioned, he impressed on youth the importance of comradeship, but +emphasized the personal element and the right to solitude. When on the +grounds of certain occurrences many voices criticized the teaching +class, Rosenberg began to fear lest general discrimination against the +profession might develop. He took a stand against this danger in two +speeches: at a great meeting in October 1934 at Leipzig, and later at +the conference of the N.S. Teacher’s League at Bayreuth (Document Book +1, Page 162), where he declared that the National Socialist movement +would step in and see that the teaching class be respected, just as it +would have done for all other professions.[sm type ends] + +[sm type begins]By these brief allusions I mean to say that Rosenberg, +as a regulating and leading intellectual force, advocated high cultural +values and the rights of personality in a manner rendered convincing by +his attitude and motives. Throughout the whole Party it was no secret +that this activity involved profound opposition to the Propaganda +Minister. Rosenberg from the very beginning considered it a calamity +that culture and propaganda should be associated in one ministry. For +him art was a creed, propaganda a form of tactics.[sm type ends] + +[sm type begins]As things at first could not be changed, Rosenberg +emphasized his attitude to the outside world by not attending a single +annual meeting of the Reich Chamber of Culture, in the firm hope that at +some later day another conception would win through.[sm type ends] + +[sm type begins]Many things Rosenberg said did not fail to have their +effect and certainly prevented some harmful actions, but more, and +probably the most important, did not succeed because the legislative and +executive powers in the State lay in quite different hands, and these +finally, due to the war and in spite of the will to sacrifice, brought +about not the development of the National Socialist idea but its +degeneration. Moreover, this happened to an extent which Rosenberg could +not foresee.[sm type ends] + +[sm type begins]It was seen that the foundations for the spiritual +education of the Party were not sufficient, and round about 1935 there +developed a wish to create a serious place for research and study. This +desire led to the idea later known as “high school,” which was intended +to take the form of an academy. Rosenberg considered the creation of +this academy as a task for his old age. Since it would have taken years +to provide tuition material and to choose suitable personnel, the Führer +authorized Rosenberg at the end of January 1940 to carry on the +preparatory work he had started on official orders. Thus, contrary to +what the Prosecution asserts, (Volume V, Page 48) the “high school” had +nothing to do with Rosenberg’s “Einsatzstab,” which was not even planned +at that time.[sm type ends] + +[sm type begins]Mr. Justice Jackson, in his fundamental speech of 21 +November 1945, expressed the desire, that this Trial should appear to +posterity as the fulfillment of the human yearning for justice. Mr. +Jackson furthermore declared that he had brought the Indictment because +of conduct which according to its plan and intention meant injustice +from the moral and the legal standpoint. In his report of 7 June 1945 +Mr. Justice Jackson outlined that by this Trial those actions are to be +punished which since time immemorial have been considered as crimes and +are designated as such in any civilized legislation. The most difficult +problem, the greatest task, and the most tremendous responsibility for +the Tribunal lies concentrated in this single point: What is justice in +this Trial?[sm type ends] + +[sm type begins]We have no code of laws, we have, however astonishing it +may sound, not even any fixed moral concepts for the relations of +nations among each other in peace and war. Therefore the Prosecution had +to be satisfied with the general terms “civilized conception of +justice,” “traditional conception of legality,” “conception of legality +built on sound common sense with regard to justice”; they have spoken of +“human and divine laws” (Volume VII, Page 78); the Hague Land Warfare +Rules refer in their preamble to the “laws of humanity” and to the +“demands of the public conscience.”[sm type ends] + +[sm type begins]The basis of justice is without any doubt a morality, +the moral law; thus if we wish to determine what injustice among nations +is, what is contrary to the idea of justice among nations according to +international law, then we must broach the question of morality. The +answer will be: everything is moral which our conscience accepts as +being moral.[sm type ends] + +[sm type begins]But what is the original cause of moral discrimination: +desire and happiness of the individual; or progress, improvement, +preservation of the life of an individual, of a people, of humanity; or +virtue; or duty?[sm type ends] + +[sm type begins]How can we recognize what is good and what is bad? By +intuition, or by experience, or by authoritarian and religious +education? What is good and bad in the actions of a State, what is good +and bad in the mutual relationship between nations? Does a difference +exist between national morals and private morals? Can the State commit +any injustice at all? From Saint Augustine through Machiavelli and +Nietzsche to Hegel, Tolstoy, and the pacifist thinkers, yearning +humanity has received the most different answers to this question.[sm +type ends] + +[sm type begins]And furthermore: Have fixed moral laws existed since +time immemorial or have changes in the ideals of nations brought about +changes in morals, too? What is the situation with regard to this +today?[sm type ends] + +[sm type begins]I have already said once that, according to my opinion, +war itself is a brutality and a great crime of humanity against itself +and the laws of life. An essentially different question is whether this +conviction has already entered the conscience of humanity. We consider +ourselves far above the moral level of former nations and ages, and are, +for example, surprised to find that the highest representatives of Greek +morality such as Plato and Aristotle consider abandoning of children and +slavery to be absolutely right, or that in certain parts of East Africa +even today only robbery and murder give a man the stamp of heroism; on +the other hand it is absolutely compatible with our present-day idea of +morality that human beings are killed by hundreds of thousands in war +and that the products of human welfare and culture are wantonly +destroyed. Neither in a moral nor in a legal sense is this considered as +unjust.[sm type ends] + +[sm type begins]If the Prosecution now charges the defendant with a +wrong in the moral or legal sense, it is its duty to present the +prerequisites for a punishment of the defendant, in such a way as to +convince the Court, for, according to the hitherto existing moral +concepts of nations, killing in war is not murder within the meaning of +the penal codes of the individual countries, and the measures of a +sovereign country in war or in peace have never been interpreted as an +offense within the meaning of these penal codes or as punishable and +immoral acts by the legal convictions of civilized humanity. +Christianity teaches us to return good for evil and to love one’s +enemies; this has been a world religion for 2,000 years, but many people +today will laugh outright if one should venture to claim certain +principles for the relations of nations between each other. In the face +of the yearning of humanity the Prosecution now desires to aid its +progress, even if only step by step, in this direction; it seeks to +achieve the end that “unequivocal rules” shall emerge from this Trial; +its mistake however, is that it wants to explain “traditional opinions +of justice” and civil criminal laws as the contents of a public +conscience which hardly exists any longer, compliance with which cannot +in any case be demanded retroactively of the defendants.[sm type ends] + +[sm type begins]It is certainly very true that a profound change is +commencing today in the moral thinking of humanity, a regeneration of +the moral law of nations, and that this Trial before the High Tribunal +marks the beginning of this new era. However, it appears to me very +doubtful whether it is proper to impress a new kind of justice upon the +conscience of mankind by making an example of the defendants.[sm type +ends] + +[sm type begins]It is easy to speak of human and divine laws, or of the +demands of public conscience, but we become greatly embarrassed for an +answer to the question: What is the substance and content of private +morality, when is an act immoral according to private morality? In their +concern over what is good or evil, some rely on religion, others have +been taught wisdom by experience and education, still others find an +explanation in the philosophers.[sm type ends] + +[sm type begins]The State has in recent times taken up the moral +education of its citizens in increasing measure, not only through +criminal laws but also through “political education” or whatever other +name is used for it. Not only did the National Socialist State have a +great advantage here over the liberal states, but so do all totalitarian +states of the world: They have hammered moral principles into the minds +of their citizens, both of a private and public nature. They have +proclaimed moral ultimate values, such as fidelity, honor, and +obedience. By this means reflection concerning private and public morals +is made easier for the individual citizens and they are obliged by force +to uphold these ultimate values in the prescribed form. The German +people, who had become tired and resigned as a result of continual +warlike disputes and religious upheavals, willingly followed National +Socialism, even when the latter’s ethics were exalted to a faith; it +took this leap into the unknown, not with the idea of being taught by +this means to deceive people, to enslave them, to rob them, to kill +them, to torture them (see Volume VII, Page 78), but because it was in +search of moral elevation, an authoritative moral leadership in its +material and spiritual distress, and because nothing else was offered to +it, especially not by a liberal world conscience which did not know how +to make the fundamental principle of humanity a reality. The National +Socialist ethical conceptions were taught to Germans as _summum bonum_, +as the highest idea, and they believed the idea to be moral and good. +Then National Socialism came into conflict not only with ideologies, but +also with the plans of power of other states, because it could not find +the formula which would include not only perfection and life for +Germany, but also the interests and justice for all nations of the +world. To try to construe out of such inadequacy of a national ethical +idea, however inefficient, a punishable action, a conspiracy, is not +admissible in my opinion, if only because uniformly acknowledged +national morality has not yet developed, and unlimited national egotism +has not yet been dethroned and is still considered the highest moral +instance of the State.[sm type ends] + +[sm type begins]It might be objected that the Germans should only have +followed the teachings of their great philosopher Kant in thought and +action, according to his “categorical imperative”: Act in such a way +that the maxim of your will could always serve as a principle for +general legislation! Then they would and should have recognized the +moral instability of National Socialist teachings. To that I can answer +with the words of the great English philosopher, John Locke, who says on +the question of what is good or evil in his _Essay Concerning Human +Understanding_; Book 2, Chapter XXVIII, Paragraph 6: “God has ordained +it in such a manner that certain activities produce general happiness, +preserve society, and even reward the doer. Man has discovered this, and +has established it as a practical rule. With that rule are connected +certain rewards and punishments either by God Himself (reward and +punishment of infinite size and duration in the Beyond) or by mortals +(legal penalties, social approval or condemnation, loss of honor); good +and evil which are not the natural effect and results of the actions +themselves. Then men look to those rules or laws, be they divine or made +by the State, and the laws of usage or of private opinion, and measure +their actions by them. They judge the moral value of their actions +according to whether they conform with the rules or not. Moral good or +evil therefore amounts only to conforming or not conforming our action +with a law which by the will and power of the legislator determines for +us what is good and evil.”[sm type ends] + +[sm type begins]Therefore good and evil has been and still is today what +the authorities want or do not want. Christianity for centuries has been +preaching not only to Germans but to all nations of the world: “Let +every man be subject to the authority above him.” And the authorities do +not move beyond conscience and morality so long as the expansion of +national egotism is not opposed by clear laws and commandments and +irrefutable legal convictions.[sm type ends] + +[sm type begins]The highest good, _summum bonum_, in international +morals of nations has not yet been mandatorily codified. There does not +exist any authoritative idea for the community of nations. Instead of +discussions on individual ethics and individual criminality, the +Prosecution should have submitted its accepted principles and criteria +as international common law, which was not done.[sm type ends] + +[sm type begins]Therefore, with regard to the standpoint of the +prosecuting authorities as to the personal responsibility of acting +statesmen, I feel impelled to look upon this as a totally new philosophy +and one which is very dangerous in its consequences.[sm type ends] + +[sm type begins]Apart from the misdeeds of the individual, which do not +satisfy even the minimum of moral conceptions, the ethical conceptions +of National Socialism and the actions resulting from them, insofar as +they are an expression of National Socialist ethics, cannot be subjected +to the judgment of a human forum, since they are an event of world +history. And the fate and guilt of the Defendant Rosenberg likewise +cannot be judged conclusively within the framework of this Trial. As to +the question of deciding the criminal guilt of the defendant, that is +the hard task of the High Tribunal; but his potential historical guilt +cannot and will not be judged by the Tribunal. Rosenberg, like all +persons of historical importance, has acted according to his character +and spirit, thereby perhaps becoming guilty in the eyes of history. The +more freedom of action a given personality has in his will, the clearer +the importance of conditions and the one-sidedness of all human +activities becomes, and out of an insignificant guilt there grows, +particularly in historical personalities, an enormous power which +decides the fate of many, and which remains a gloomy foreboding for +whoever lets it loose.[sm type ends] + +[sm type begins]Goethe once said: “The doer never has a conscience; no +one feels his conscience but the observer.” But this maxim can never +mean that a person must not move and act to the best of his knowledge +and conscience, and particularly for his country’s sake. And we all know +that in reality nobody is capable of attaining the good he is striving +for. Just as his knowledge, so will his actions always be incomplete: +Any action we accomplish as free beings is an infringement on the +operating forces of the universe, which we are never able to assess.[sm +type ends] + +Rosenberg was caught up in the destiny of his nation in a period of +severe foreign political oppression and internal dissension. He +struggled for cultural purity, social justice, and national dignity, and +rejected vehemently all elements which did not admit these high values +or consciously attacked them in an irreverent manner. With respect to +foreign policy he stood for an agreement between the four central powers +of the European continent, in full realization of the grave consequences +of a lost war. He acted in all loyalty and respect toward a personality +who appeared to give political shape and increasing power to his ideals. +After the political victory at home, Rosenberg proposed that the +polemics and other aspects of the period of struggle be subdued. He +stood for a chivalrous solution of the existing Jewish problem, for +spiritual and cultural instruction of the Party on a high plane and, +contrary to the statements of the Prosecution, he opposed any form of +religious persecution. He can hardly be reproached for emphasizing a +definite religious-philosophical conviction of his own. + +The practical application of many of his views was practiced to an +increasing degree by authoritative agencies of the Party, although later +they were disregarded, especially after the outbreak of the war. +Finally, as has been discovered now, they were often turned into the +opposite of what Rosenberg fought for. + +Until 17 July 1941 Rosenberg was excluded from participation in any +national legislation. Considered from the point of view of personal +responsibility, all his speeches and writings up to that time come +within the scope of unofficial journalistic activity which every +politician and writer must admittedly be free to engage in—a freedom +which the Tribunal has fundamentally acknowledged with regard to all +utterances by the statesmen of other countries during the unofficial +period of their career. It seems to be all the more significant that +Rosenberg as a private citizen did not call for war or for the +commission of any inhuman or violent acts. + +As Minister for the East he advocated a generous solution in accordance +with the understandable national and cultural aspirations of the eastern +European peoples. He fought for this concept as long as there were any +prospects for its realization. Ultimately realizing that Hitler refused +to be persuaded, he requested his dismissal. The fact that Rosenberg +could not prevent many outrages from happening in the East cannot be +charged against him in the criminal sense. Neither the Armed Forces nor +the Police nor the Allocation of Labor were subject to his authority. +Whenever injustices or excesses came to his knowledge, he did everything +he could to counteract them. + +For almost a whole year, Rosenberg endeavored to keep labor recruiting +on a voluntary basis. Later, when several age groups were drafted, he +protested against every abuse by executive agencies and always demanded +redress. Quite apart from the legitimate requirements of the occupation +power, his labor legislation for the Eastern Territories was necessary +for the establishment of order and the repression of arbitrary measures +as well as of dangerous idleness, increasing sabotage, and the growing +number of murders. There was a war on and it was a war area, not a +postarmistice period, much less one following final capitulation. + +So far as he was informed of things and commanded any influence, +Rosenberg fought for his convictions. The fact that adverse powers +became stronger than he was cannot be brought up as a charge against +him. One cannot punish offenses, and at the same time punish those who +revolted against them. In view of the terrible extermination orders +which have now been disclosed, it is certainly possible to raise the +point whether Rosenberg could not have exerted much stronger opposition. +To expect this would, however, suppose an earlier knowledge of things +which he only learned about after the collapse. Should he be charged +with any carelessness it must not be forgotten that he felt it to be his +duty to serve the Reich engaged in the struggle for its existence, and +that terrible injuries were also inflicted upon the German nation, +injuries which Rosenberg was equally unable to recognize as war +necessities. + +His official tasks, as for example the duties of the Einsatzstab in the +West and East, were carried out by Rosenberg without compromising his +personal integrity. The requisitioning of artistic and cultural objects +he always carried out provisionally, subject to final decisions by the +supreme authority and, as far as was at all possible, with proper +identification of the proprietor. Moreover, in the use of unclaimed +furniture for the benefit of air-raid victims in Germany, provision was +made for the subsequent indemnification of the owners based upon a +precise inventory. + +In considering his entire personality we see that Rosenberg followed +with faith and devotion an ideal of social justice combined with +national dignity. He fought for it openly and honorably, went to prison, +and risked his life for it. He did not step in only when National +Socialism afforded the opportunity to begin a career, but at a time when +it was dangerous and asked only for sacrifice. In his speeches after +1933 he took his stand in favor of deeper spiritual formation, a new +cultural education, personality values, and respect for every form of +honest work. He accepted the gloomy days of that time as unfortunate but +inevitable accompanying phenomena of a revolution otherwise acclaimed as +having passed without bloodshed, without having in fact learned of the +secret details. He fully believed that good forces and ideas would +prevail over these other human imperfections. During the war he was at +the service of the Reich in accordance with his duty. + +For 25 years, throughout the revolution and the events of the war, he +maintained his personal integrity and untainted character. He had to +witness with deep sorrow that a great idea, in the hands of those +possessed with the lust for power, was gradually abused, and in 1944, at +Party meetings, he protested against this abuse of power entrusted to +its holders. During this Trial he had to his dismay and horror to look +upon the evidence of the degeneration of his life’s ideal; but he knows +that his aspirations and the aspirations of many millions of other +Germans have been honorable and decent. Today he still adheres to his +honorable, honest, and humanly irreproachable conduct and, full of +sorrow for the wounds inflicted upon all nations and for the downfall of +the Reich, he awaits the sentence of a just Tribunal. + + [_The Tribunal adjourned until 11 July 1946 at 1000 hours._] + + + + + ONE HUNDRED + AND SEVENTY-SIXTH DAY + Thursday, 11 July 1946 + + + _Morning Session_ + +THE PRESIDENT: The Tribunal will adjourn this afternoon at four o’clock +to sit in closed session. + +Dr. Seidl, will you present the case of the Defendant Frank? + +DR. ALFRED SEIDL (Counsel for Defendant Frank): Mr. President, My Lords. +The Defendant Dr. Hans Frank is accused in the Indictment of having +utilized his posts in Party and State, his personal influence, and his +relation with the Führer, for the purpose of supporting the seizure of +power by the National Socialists and the consolidation of their control +over Germany. He is also accused of having approved, led, and taken part +in the War Crimes mentioned in Count Three of the Indictment, as well as +in the Crimes against Humanity mentioned in Count Four, particularly in +the war crimes and crimes against humanity committed in the course of +the administration of occupied territories. + +As I have already explained in the case of the Defendant Hess, the +Indictment fails to adduce any facts in substantiation of these +accusations. It is similar in the case of the Defendant Frank; here +again the Indictment contains no statement of factual details to +substantiate the accusations. Like all the other defendants, the +Defendant Frank is accused of having taken part in a common plan which +is alleged to have had as its object the planning and waging of wars of +aggression and the commission in the course of these wars of crimes +which infringe upon the laws and customs of war. + +The evidence has shown that the Defendant Frank joined the National +Socialist Party in the year 1928. Both before and after the assumption +of power by the National Socialists he was concerned almost exclusively +with legal questions. The Reich Law Department was under his control as +Reichsleiter of the Party until the year 1942. After Adolf Hitler’s +appointment as Chancellor, Frank became the Bavarian Minister of +Justice. In the same year he was appointed Reich commissioner for the +co-ordination of legal institutions. This task consisted in the main of +transferring to the Reich Ministry of Justice the functions of the +administrative legal departments of the component states of the Reich. +That was completed by the year 1934. When the affairs of the Bavarian +Ministry of Justice had been transferred to the Reich, the office of the +Defendant Frank as Bavarian Minister of Justice came to an end. In +December 1934 he was appointed Reich Minister without Portfolio. In +addition he became, from 1934 onward, President of the Academy for +German Law, which he himself had founded, and President of the +International Chamber of Law. Finally, he was the Leader of the National +Socialist Lawyers Association. + +This list of the various posts held by the Defendant Frank in Party and +State would alone be sufficient to show that his work was almost +exclusively concerned with legal matters. His tasks were in the main +confined to the execution of Point 19 of the Party Program, which +demanded a German common law. And in actual fact almost all speeches and +publications by the Defendant Frank, both before and after the +assumption of power by the National Socialists, dealt with legal +questions in the widest sense of the term. + +In the course of his examination in the witness box, the Defendant Frank +testified that he had done everything he could to bring Adolf Hitler to +power and to carry out the ideas and the program of the National +Socialist Party. But whatever the defendant undertook in this respect +was done openly. + +The aims of the National Socialists before they assumed power can be +expressed in a few words: Liberation of the German people from the +shackles of the Versailles Treaty; elimination of the mass unemployment +which had arisen in consequence of that treaty and the unreasonable +reparations policy of Germany’s former enemies; counteraction against +the symptoms of degeneracy—political, economic, social, and +moral—connected with that unemployment; and finally, the restoration of +the sovereignty of the Reich in all spheres. + +The Prosecution was unable to produce any evidence to show that the +revision of the Versailles Treaty was, if necessary, to be carried out +by violent means and by war. The political, military, and economic +situation in which Germany found herself before the assumption of +power—a situation in which it could only be a question of eliminating +the terrible consequences of the economic collapse and of enabling seven +million unemployed again to play their part in the economic +process—could not but make any serious thought of a war of aggression +appear futile. + +Moreover, the evidence brought forth nothing to show the existence of +the common plan as stated in Count One of the Indictment, as far as one +understands thereby a definite and concrete plan among a narrow uniform +circle of persons. The evidence, in particular the testimony given by +the witness Dr. Lammers and the defendant himself in the witness box, +has shown on the contrary that Frank did not belong to the circle of +Hitler’s closer collaborators. The Prosecution was unable to present to +the Tribunal a single document dealing with important political or +military decisions with which the Defendant Frank was connected. In +particular, the Defendant Frank was not present at any of the +conferences with Hitler which the Prosecution considers especially +important in proving the alleged common plan, the minutes of which +conferences the Prosecution has submitted as Exhibits, Numbers USA-25 to +34. + +The only statute which is important in this connection is the Law on the +Reintroduction of General Conscription of 16 March 1935. The facts have +already been explained, and will be further enlarged upon, which led to +the promulgation of that law and why it cannot be looked upon as an +infringement of the Versailles Treaty. The Defendant Frank signed that +law in his capacity as Reich Minister, as did all the other members of +the Reich Government. That law, which had as its object the +restoration—at least in the military sphere—of the sovereignty of the +German Reich, did no harm to any other nation. Nor did the content of +that law, or the circumstances which led to its enactment, admit the +conclusion that it was part of a common plan with the object of +launching a war of aggression. + +The German people had been obliged to realize, during the preceding 17 +years, that the voice of a nation without military power, and in +particular a nation in Germany’s geographical and military situation, +cannot make itself heard in the concert of nations if it has not at its +disposal adequate instruments of power. The Government of the Reich +faced the consequences of this realization after equality of rights had +been promised the German people over and over again for 14 years and +that promise had not been kept, and in particular after it had become +clear in the years 1933 and 1934 that the Disarmament Conference would +not be capable of fulfilling its appointed functions. For the rest, I +refer to the proclamation of the Reich Government to the German people, +which was issued in connection with the publication of that law. + +Further, the work of the Defendant Frank, even after the assumption of +power and up to the beginning of the war, was confined almost +exclusively to the execution of tasks connected with the leadership of +the Academy for German Law and the National Socialist Lawyers +Association. The objects of the Academy for German Law are apparent from +the law concerning its establishment of 11 July 1933. It was intended to +encourage the reform of German legal procedure and, in close and +constant co-operation with the appropriate legislative authorities, to +put the National Socialist program into practice in the whole sphere of +law. The academy was under the supervision of the Reich Minister of +Justice and the Reich Minister of the Interior. The function of the +academy was to prepare drafts of statutes; legislation itself was +exclusively restricted to the Reich ministries for the various +departments. + +One of the tasks of the academy was to exercise the functions of the +legal committees of the former Reichstag. In actual fact the work of the +academy was done almost exclusively in its numerous committees, which +had been established by the defendant. Acceptance into the academy was +not dependent on membership in the Party. Most of the members of the +academy were legal scholars and eminent legal practitioners who were not +Party members. Moreover, it is well known that the Academy for German +Law kept up close relations with similar establishments abroad and that +numerous foreign scholars gave lectures in the academy. These facts +entirely exclude the assumption that the academy could have played any +important part in the common plan alleged by the Prosecution. The same +is true of the position of the Defendant Frank as leader of the National +Socialist Lawyers Association. + +Adolf Hitler’s attitude toward the conception of a State founded on law, +insofar as any doubt could still have been entertained about it, has +become perfectly clear through the evidence presented at this Trial. +Hitler was a revolutionary and a man of violence. He looked on law as an +impeding and disturbing factor in the realization of his plans in the +realm of power politics. Incidentally, he left no doubt about this +attitude of his and discussed the subject of the State founded on law in +a number of speeches. He was always very reserved in his dealings with +lawyers, and for this reason alone it was impossible from the outset +that any close association could have developed between him and the +Defendant Frank. The Defendant Frank considered it his life’s work to +see the conception of the State founded on law realized in the National +Socialist Reich and, above all, to safeguard the independence of the +judiciary. + +The Defendant Frank proclaimed these principles as late as 1939, before +the outbreak of war, in a great speech he made before 25,000 lawyers at +the final meeting of the Congress of German Law at Leipzig. Among other +things he declared on that occasion: + + “First, no one should be sentenced who has not had an + opportunity of defending himself. + + “Second, no one shall be deprived of his property, provided that + he uses it unobjectionably from the point of view of the + community, except by judicial sentence. Legal properties in this + sense include honor, freedom, life, and earnings. + + “Third, an accused person, no matter under what procedure, must + be enabled to procure someone to defend him who is capable of + making legal statements on his behalf; and he must have an + impartial hearing according to law. If these principles are + applied to their full extent, then the Germanic ideal of law + will be fulfilled.” + +These principles constitute a definite repudiation of all methods +employed in a police-ruled State and imply, moreover, the definite +rejection of the system of concentration camps. The Defendant Frank had +actually spoken against the establishment of concentration camps before +the date indicated. The evidence has shown that in the year 1933, in his +capacity as Bavarian Minister of Justice, he was opposed to the +concentration camp at Dachau, that he urged the application of the +so-called legality principle, that is, the prosecution of all offenses +by the State, even in these camps, and that, over and above this, he +demanded the dissolution of the concentration camp at Dachau. That this +last point is a fact is shown by the evidence given by the witness Dr. +Stepp, who was questioned elsewhere. + +The Prosecution also appears to see in the sentence, “Right is what +benefits the people,” an indication of the participation of the +Defendant Frank in the alleged common plan. Such a conclusion could only +be drawn in complete misapprehension of the idea which the Defendant +Frank wished to express by means of this sentence. This was merely a +challenge to the exaggeratedly individualistic legal idea. In the same +way as by the phrase, “The common good before one’s own,” the sentence +quoted is intended to express the demand for a legal system which, to a +greater extent than in previous years, should take account of common law +and socialist tendencies. It is in reality nothing more than a different +way of saying: _Salus publica suprema lex_. + +These material differences alone would have been sufficient to make it +unthinkable that the Defendant Frank could have belonged to the inner +circle of Hitler’s collaborators. The differences of outlook in regard +to the functions of law were bound to become more pronounced in the +course of the war. It could therefore cause no surprise that after the +death of the former Reich Minister of Justice, Dr. Gürtner, it was not +the Defendant Frank who was appointed his successor, but the President +of the Peoples’ Court, Dr. Thierack. + +Summing up, it may be said that there is no factual foundation for the +assumption that the Defendant Frank participated in a common plan, a +common plan which had as its object the waging of an aggressive war and +in connection therewith the commission of crimes against the rules of +war. Before I turn to the points of accusation brought against the +Defendant Frank within the framework of his career as Governor General, +I will refer shortly to his responsibility under penal law as a member +of the organizations accused of criminality. + +So far as Frank’s responsibility as member of the Reich Government is +under investigation, I can here in the main refer to the statements +which I shall later make in the case of the Defendant Hess. The only +difference lies in the fact that whereas Hess, too, was only Reich +Minister without Portfolio, he had—as the Führer’s Deputy under the +Führer’s decree of 27 July 1934—a considerable influence on the +preparation of laws. That, however, was not the case with the Defendant +Frank. Frank had hardly any influence at all on the legislation of the +Reich. That is why he was cosignatory of so extraordinarily few Reich +laws. With the exception of the law of 16 March 1935, by which general +conscription was reintroduced, his name is to be found under none of the +laws which the Prosecution has presented to the Tribunal as relevant to +the proof of the criminal nature of the Reich Government as an +organization. + +The Defendant Frank, in his capacity as Reichsleiter and Leader of the +Reich Law Department, was also a member of the Leadership Corps of the +National Socialist German Workers’ Party. An investigation of this point +of accusation seems all the less called for since in this respect no act +can be attributed to the Defendant Frank which fulfills the requirements +of any penal law. For the rest, here too I can refer to my statements in +the case of the Defendant Hess. + +In Appendix A to the Indictment it is alleged that the Defendant Frank +was a general of the SS. The evidence has shown that Frank at no time +belonged to the SS and that he did not even have the honorary rank of a +general of the SS. On the other hand, he was an Obergruppenführer in the +SA. With respect to the application made by the Prosecution to declare +that organization as criminal, too, the same may be said as in the case +of the application to declare the Leadership Corps criminal. The Charter +and the Prosecution here again depart from the principle which hitherto +has been considered an indispensable component of any modern criminal +law practice, namely, that no punishment is admissible unless guilt has +been established in every individual case. + +I now pass to the points of accusation in connection with the career of +the Defendant Frank as Governor General. When the Polish Government had +left the country after Poland’s military collapse, the German occupying +forces were faced with the task of building up an administration without +the help of any parliamentary, representation or any representatives of +the former Polish State. The difficulties arising out of this situation +were bound to be all the greater because, in spite of the comparatively +short time that the war had lasted, the war damage, especially to the +communications system, was not inconsiderable. Above all, however, the +establishment of an orderly administration was rendered more difficult +by the fact that the homogeneous economic area of the former Polish +State was divided into three parts. Of the 388,000 square kilometers +which made up the territory of the former Polish State, about 200,000 +were taken over by the Soviet Union and 97,000 formed the Government +General, while the rest was incorporated in the German Reich. A change +came on 1 August 1941. On that date Galicia was annexed to the +Government General as a new district, whereby the territory of the +Government General was increased to an area of approximately 150,000 +square kilometers with about 18 million inhabitants. This frontier +delimitation made it all the more difficult for the administration, as +the agricultural excess production all went to the Soviet Union, while +on the other, hand important industrial cities such as Lodz, and above +all the coal fields of Dombrowa, fell to the Reich. + +Directly after the military collapse of Poland, a military government +was set up to cover the four military districts of East Prussia, Posen, +Lodz, and Kraków, Commander Von Rundstedt being placed at the head of +that government. The Defendant Frank became Supreme Chief of +Administration (Oberverwaltungschef). The military government ended on +26 October 1939 with the coming into force of the decree of the Führer +and Reich Chancellor concerning the administration of the occupied +Polish territories under the date of 12 October 1939. Under this decree +the Defendant Frank was appointed Governor General for the occupied +Polish territories which were not incorporated in the Reich and which +shortly afterward became known as the Government General. + +As the time at my disposal is short, I will not go into detail on the +question as to whether the administration of the territories of the +former Polish State, jointly designated as the Government General, +should have conformed to the principle of _occupatio bellica_ +(occupation of enemy territory), or whether it should not rather be +assumed that the principles of debellatio (complete subjection and +incorporation in a foreign state) were applicable in that case. + +I come now to the question of the powers vested in the Defendant Frank +by virtue of his office of Governor General. According to Article 3 of +the Führer’s decree of 12 October 1939 the Governor General was directly +subordinate to the Führer. The same provision placed all branches of the +administration in the hands of the Governor General. In actual fact, +however, the Governor General had by no means such wide powers as it +would seem at first sight. The Führer’s decree itself provided in +Article 5 that the Ministerial Council for the Defense of the Reich +could also make laws for the territory of the Government General. + +The Delegate for the Four Year Plan had the same power. Article 6 +provided that, moreover, all supreme Reich authorities could issue +decrees necessary for planning within the German living space and +economic area and that these would be effective also for the Government +General. + +Apart from this limitation of the authority of the Governor General as +provided in the Führer decree of 12 October 1939, other powers were +conferred at a later date which no less impaired the principle of +uniform administration. That is particularly true of the position of the +Plenipotentiary General for the Allocation of Labor. I refer at this +point to the appropriate documents presented by the Prosecution and the +Defense, in particular to the Führer’s decree of 21 March 1942, in which +it is expressly provided that the powers of the Plenipotentiary General +for the Allocation of Labor extend to the territory of the Government +General. The whole armament industry in the Government General was at +first in the hands of the OKW, but after the establishment of the Reich +Ministry for Armaments and War Production it came under the jurisdiction +of the latter. + +The evidence has shown that in other directions, too, the principle of +uniform administration was extensively infringed upon. For this I refer +to the statements of the witnesses Dr. Lammers and Dr. Bühler and to the +content of the documents submitted by me, especially Document USA-135. +This deals with the directives in “special matters concerning +instructions Number 21 (Case Barbarossa),” in which it is expressly +provided that the commander-in-chief of the Army shall be entitled “to +order such measures in the Government General as are necessary for the +execution of his military duties and for safeguarding the troops” and in +which the commander-in-chief is empowered to delegate his authority to +the army groups and armies. + +All these infringements of the principle of a uniform administration of +all special powers, however, pale beside the special position allotted +to the Reichsführer SS Himmler also in respect of the territory of the +Government General. The evidence, and particularly the testimony of Dr. +Bilfinger, Oberregierungsrat in the RSHA, shows that as early as in 1939 +when the defendant was appointed Governor General, a secret decree was +issued in which it was provided that the Higher SS and Police Leader, +East was to receive his instructions direct from the Reichsführer SS and +Chief of the German Police, Himmler. Similarly, it is provided in the +decree of the Führer and Reich Chancellor for the Preservation of German +Nationality that the Reichsführer SS shall be directly empowered to +effect the planning of new German settlement areas by means of +resettlements. These two decrees conferred on the Reichsführer SS +Himmler powers which, from the very first day of the existence of the +Government General, tended to confront its administration with almost +insurmountable difficulties. It was very soon evident that the general +administration under the Governor General had at its disposal no +executive organs, in the true meaning of the term. Since the Higher SS +and Police Leader, East received his instructions and orders direct from +Reichsführer SS Himmler and refused to carry out instructions emanating +from the Governor General, it was very soon seen that in reality there +were two separate authorities ruling over the Government General. The +difficulties which thus arose were bound to become all the greater, as +Higher SS and Police Leader Krüger, who for no less than 4 years was +Himmler’s direct representative in the Government General, did not even +inform the administration of the Government General before carrying out +police measures. + +It is a well-known experience in the life of any state that an +administration lacking executive police organs is in the long run not +capable of carrying out its appointed functions. This is true even under +normal conditions, but it must be all the more pronounced in the +administration of occupied territory. If we remember, moreover, that not +only did the Reichsführer SS Himmler issue his instructions direct to +the Higher SS and Police Leader, ignoring the Governor General, but that +over and above this the Offices III, IV, V, and VI of the RSHA also gave +direct orders to the Commander of the Security Police and the SD in +Kraków, we can well assess the difficulties with which the civil +administration of the Government General had to wrestle day by day. + +Under these circumstances the Governor General had no choice but to make +every attempt to reach some form of co-operation with the Security +Police, unless he was prepared to relinquish any hope of building up a +civil administration in the Government General. And in fact the history +of the administration of the Government General—which lasted for over 5 +years—is for the greater part nothing but a chronicle of uninterrupted +struggles between the Governor General and the administration on the one +hand, and the Security Police with the SD as represented by Reichsführer +SS Himmler and the Higher SS and Police Leader, East, on the other. + +The same applies to the activity of Himmler and his organs in the field +of resettlement. As Reich Commissioner for the Preservation of German +Nationality, Himmler and his organs carried out resettlement measures +without even establishing previous contact with the administration of +the Government General or informing the Governor General. + +The numerous protests of the Governor General, addressed to Dr. Lammers, +the Reich Minister and Chief of the Reich Chancellery, with regard to +the measures taken by the Reichsführer and the Higher SS and Police +Leader, East, and the difficulties they put in the way of the +administration of that territory, have been established by the evidence. +These protests led in the year 1942 to an attempt at redirecting the +relationship between the administration and the Police. In retrospect, +it can be said today as a result of the evidence that even this attempt +was only utilized by Himmler and the Security Police to undermine +internally and externally the position of the Governor General and his +civil administration. + +By a decree of the Führer dated 7 May 1942 a State Secretariat for +Security was established in the Government General, and the Higher SS +and Police Leader was appointed State Secretary. According to Article II +of this decree, the State Secretary for Security also became the +representative of the Reichsführer SS in his capacity as Reich +Commissioner for the Preservation of German Nationality. The decisive +provision of this decree is contained in Article IV, in which it is +stated verbatim: + + “The Reichsführer SS and Chief of the German Police can issue + direct instructions to the State Secretary for Security in + matters pertaining to security and the preservation of German + nationality.” + +Herewith, the contents of the secret decree issued in 1939 on the +establishment of the Government General—which also provided that the +Higher SS and Police Leader, East was to receive his instructions direct +from the Berlin central offices and particularly from the Reichsführer +SS in person—was expressly, and now publicly, confirmed. It is true +that Article V of the Führer decree of 7 May 1942 provided that in cases +of difference of opinion between the Governor General and the +Reichsführer SS and Chief of the German Police the Führer’s decision was +to be obtained through the Reich Minister and Chief of the Chancellery. + +The Chief of the Reich Chancellery, Lammers, was interrogated on this +subject when he appeared as a witness before this Tribunal. He testified +that insofar as he found it possible at all to gain the Führer’s ear in +these matters, the latter on principle invariably approved Himmler’s +view. This is not surprising if we remember Himmler’s position in the +German governmental system, particularly during the later war years. +This deprived the Defendant Frank of the last possibility of influencing +in any way the measures taken by Himmler and the Higher SS and Police +Leader, East. + +In consequence of Article I, Paragraph 3, of the Führer decree of 7 May +1942 the scope of duties of the State Secretary for Security had to be +newly defined. Both the Higher SS and Police Leader and, backing him, +the Reichsführer SS attempted to bring as wide a field as possible under +their jurisdiction in connection with the new regulation of the +competence of the State Secretariat; on the other hand, the Governor +General, in the interest of the maintenance of some sort of order in the +administration, naturally tried to obtain control of at least certain +departments of the Regular Police and the Administration Police. There +is no doubt at all that it was the Police that emerged the victor in +these struggles. + +On 3 June 1942 the Governor General was obliged—in a decree concerning +the delegation of duties to the State Secretary for Security—to declare +himself willing to transfer to the State Secretary all the departments +of the Security Police and the Regular Police. I have submitted this +decree to the Tribunal (together with its two Appendices A and B) in the +course of the evidence as Exhibit Number Frank-4. The two appendices +list all the functions of the Regular and Security Police that have ever +existed in the German police system. In Appendix A, which covers the +departments of the Regular Police, there are 26 headings in which not +only all the departments of the Regular Police are transferred to the +State Secretary for Security, but over and above that, almost all the +departmental functions of the so-called Administration Police. I will +only mention Heading 18 as one example among many. This transfers to the +Regular Police, and thereby to the Higher SS and Police Leader, all +matters connected with price control. What is true of the Regular Police +applies in even greater measure to the departments of the Security +Police. No change as compared with the earlier situation was brought +about by placing under the jurisdiction of the Higher SS and Police +Leader the whole of the Political and Criminal Police, political +intelligence, Jewish affairs, and similar departments; these +competencies were already his as leader of the Security Police and the +SD, and were made entirely independent of the administration of the +Government General under the secret decree of 1939. Departments were +also transferred to the State Secretary for Security which had only the +remotest connection with the tasks of the Security Police, for example, +matters such as the regulation of holidays and so on. + +Of considerable importance are the two last headings in the Appendices A +and B, in which it is expressly provided that at conferences and +meetings, particularly with the central Reich authorities, on all +matters pertaining to the Regular and Security Police, the Government +General—not the Governor—should be represented by the Higher SS and +Police Leader. Therewith any competency possessed by the Governor +General, even in regard to comparatively unimportant branches of the +Administration Police, was transferred to the organs of Reichsführer SS +Himmler, and the Government General was thus deprived of even the last +remnants of an executive of its own. + +Only by considering these facts and the development of the conditions +obtaining between administration and police in the Government General is +it possible to form an even approximately correct appreciation of the +events in the Government General, which form part of the subject of the +Indictment in this Trial. + +Your Lordships, the Prosecution seeks to prove its accusations against +the Defendant Dr. Frank in the main by quotations from the defendant’s +diary. In this connection I have the following basic observation to +make. + +That diary was not kept personally by the Defendant Frank but was +compiled by stenographers who were present at Government conferences and +other discussions of the Governor General. The diary consists of 42 +volumes with no less than 10,000 or 12,000 pages of typescript. + +With one exception, the entries do not represent the outcome of +dictation by the defendant, but take the form of stenographers’ +transcripts. For the greater part—and this is evident from the diary +itself—the authors of this diary did not record the various speeches +and remarks word for word, but made a summarized version in their own +words. The entries in the diary were not checked by the defendant, +nor—again with one single exception—were they signed by him. The +attendance lists stapled into several volumes of the diary—they are +only contained in such volumes as relate to Government +conferences—cannot be looked upon as a substitute for a confirmatory +note. + +Moreover, the evidence has clearly established that very many entries in +the diary were not made on the basis of personal observations but came +about through the fact that the author was told by participants about +the subjects of Government meetings or other conferences after they had +taken place, and then expressed it in the diary in his own words. +Moreover, by an examination of the diary it can easily be ascertained +that the entries cannot be considered complete. + +All these facts bring us to the conclusion that the material evidential +value of this diary must not be overestimated. The evidential value of +this diary can in no way be compared with the evidential value of +entries made personally by the person concerned. + +Above all, however, it seems to me essential to point out the following: +The contents of any document are of material evidential value only +insofar as the document is appreciated in its entirety. The diary of the +Defendant Frank with its 10,000 or 12,000 pages is one uniform document. +It is improper to put in as evidence certain individual entries without +showing the context in which alone some of them can be understood. But +it is particularly improper—and this infringes upon the principles of +any presentation of evidence—to select from some uniform whole, such as +a long speech, a few sentences and put them in as evidence. In Document +Book Number 2, I have listed a few examples of this and hereby refer to +them. + +As the Defendant Frank himself rightly pointed out in the witness box, +the diary is a uniform whole; only in its entirety can it be probative +and form part of the presentation of evidence. I have read through that +diary of more than 10,000 pages and can only confirm his opinion. And +that was why I did not use individual entries in presenting my evidence +but put in the whole diary. + +If I myself, in presenting evidence, have read certain single entries +from the diary and if in the course of my present address I shall quote +a few more passages from it, then, just as in the case of the extracts +put forward by the Prosecution, their evidential value can certainly be +gauged only within the framework of the whole diary. + +The following may also be looked upon as having been established by the +evidence: As the diaries show, and as is evident in particular from the +testimony given by the witnesses Bühler, Böpple, and Meidinger, the +Defendant Frank in his capacity as Governor General often made two or +three improvised speeches in the course of one day. The extracts from +the diary presented by the Prosecution consist, for the most part, of +single sentences from such speeches. If we take into consideration both +the temperament of the defendant and his habit of expressing himself in +an incisive manner, then that is another reason which tends to reduce +the probative value of these extracts from the diary. And we actually do +find many diary entries which flatly contradict other entries on the +same subject occurring a little earlier or later. + +In connection with the many speeches made by the Defendant Frank, the +following must not be left out of consideration and may also be looked +upon as established by the evidence: It was a foregone conclusion that +the Defendant Frank, as an avowed champion of the idea of a State +founded on law and of the independence of the judiciary, would come into +increasingly sharp conflict with the representatives of the police-state +system; this developed to an even greater degree in the course of the +war, both within the Reich and in occupied territory. The +representatives of the police state, however, were Reichsführer SS +Himmler and, for the area of the Government General, the Higher SS and +Police Leader, East, above all and in particular SS Obergruppenführer +and General of Police Krüger. The relation between the Defendant Frank +on the one hand, and Reichsführer SS Himmler and his representative, +Obergruppenführer Krüger, on the other, had been extremely bad even at +the time the Government General was established. They deteriorated still +more as the divergence of outlook concerning the tasks of the Police +came ever more openly to the fore; and the Defendant Frank was forced to +lodge increasingly strong protests with the Chief of the Reich +Chancellery, Dr. Lammers, and the Führer himself regarding the violent +measures taken by the Security Police and the SD. + +As I have already mentioned, the Governor General, lacking an executive +of his own, had no choice but to make repeated attempts to co-ordinate +the work of the general administration with that of the Police, in order +to be in a position to carry out any administrative work at all. +Obviously these objectives demanded—at least on the face of things in a +certain degree—a conciliatory tendency toward the general attitude of +the Security Police and, above all, of the Higher SS and Police Leader, +East. Moreover, the evidence has further established that the tension +existing between the Governor General and the Higher SS and Police +Leader often reached such a degree that the Defendant Frank could not +but feel himself menaced and—to quote the words of the witness +Bühler—was no longer a free agent and master of his own decisions. + +The testimony of the witnesses Bach-Zelewsky and Dr. Albrecht leaves no +doubt on this point. Quite rightly, therefore, the witness Dr. Bühler +also pointed out that the Defendant Frank expressed himself with +particular vehemence when the Higher SS and Police Leader or the +commander of the Security Police and the SD were present at conferences, +while his utterances were made on quite a different note when he was +speaking to an audience composed only of members of the administration. +Even a cursory inspection of the diary will confirm this. All these +circumstances must be taken into consideration in assessing the +substantive evidential value of the Defendant Frank’s diary. + +It should also be noted that these diaries constituted the only personal +property that Frank was able to rescue from the castle at Kraków. On his +arrest he handed over all the diaries to the officers who took him into +custody. It would have been an easy matter for him to destroy these +documents. + +Your Lordships, I now turn to the individual accusations brought against +the defendant, and their legal aspects. The Defendant Frank is accused +of having approved of, and participated in, War Crimes and Crimes +against Humanity in the administration of occupied territory. + +As the law stands, it rests on the principle that only a sovereign +state, not an individual, can be a subject of international law. To make +international law binding on an individual, such law itself would have +to lay down that a certain set of facts constitutes a wrong and that the +rule thereby established is applicable to an individual creating such a +set of facts. Only in that way can individuals, who under the law as it +stands are subject only to the criminal law applying in each state, by +way of exception be directly bound by international law. + +Deviating from this rule, existing international law permits, in +exceptional cases, a state to punish the national of an enemy state who +has fallen into its power, if before his capture he has been guilty of +infringing the rules of war. But even here punishment is excluded if the +deed was not committed on the person’s own initiative, but can only be +attributed to his state of allegiance. Moreover, the conception of war +crimes and their factual characteristics are the subject of great +controversy both in judicial decisions and in legal literature. + +Nor do the Hague Rules on Land Warfare, which form the Appendix to the +IVth Convention on the Laws and Customs of War on Land and purport to be +a codification of certain subject matter of the laws of war, list any +facts which could be interpreted as a basis for the criminal liability +of individuals. In Article 3 of this convention it is, on the contrary, +expressly provided that not individuals but the state which infringed +the rules may, under certain circumstances, be liable to pay an +indemnity and is also responsible for all acts done by persons belonging +to its armed forces. + +In connection with the Hague Rules for Land Warfare of 1907 the +following should also be noted: The principles therein enunciated were +evolved from the experience of wars in the 19th century. Those wars were +confined in the main to the armed forces directly concerned therein. + +Now the first World War already overstepped this framework, and not only +in respect of the geographical extent of conflict. On the contrary, the +war became a struggle for extermination of the nations involved, a +struggle in which each belligerent party utilized the whole of its war +potential and all its material and imponderable resources. War technique +having meanwhile been considerably perfected, the second World War was +bound altogether to destroy the framework set up for the conduct of war +by the Hague Rules for Land Warfare. That can be seen at a glance—the +condition of Europe today reveals it. If we remember in addition that in +Germany alone the greater part of almost every city has been destroyed +as a result of bombing raids; and not only that, but that considerably +more than a million civilians thereby lost their lives and that in a +single major raid on the city of Dresden almost 300,000 people were +killed, then it will be possible to realize that the Hague Rules for +Land Warfare, at any rate in respect of many activities coming under the +rules of war, can no longer be an adequate expression of the laws and +customs to be observed in waging war. But if any doubt should exist on +this subject, then that doubt will certainly be removed on contemplation +of the consequences of the two atom bombs which razed Hiroshima and +Nagasaki to the ground and killed hundreds of thousands of people. + +Taking these circumstances into consideration, it is not possible to +adduce the provisions of the Hague Rules for Land Warfare, even +indirectly or by way of analogy, to establish individual criminal +liability. Seeing that this is the case, it must be looked upon as +impossible to give a clear and general definition of the factual +characteristics of so-called war crimes. Referring to the fact that even +Article 6 of the Charter of the International Military Tribunal only +purports to furnish a list of examples, it will be realized that the +question as to whether a certain line of conduct amounts to the +commission of a war crime or not can only be answered on the merits of +each particular case, and then only if all the circumstances are taken +into consideration. + +In the course of the presentation of evidence for the personal +responsibility of the Defendant Frank, the Prosecution submitted as +Exhibit USA-609 (864-PS) minutes of a conference held by the Führer with +the Chief of the OKW on the future form of Polish relations to Germany. +This conference took place on 17 October 1939. It is alleged that these +minutes alone, by which the administrative goals of the Defendant Frank +in the Government General are said to be established, reveal a plan or +conspiracy at variance with the laws of warfare and humanity. This is an +inadmissible conclusion, at least insofar as the Defendant Frank is +concerned. + +The Prosecution was unable to prove that the Führer entrusted the +Defendant Frank with a task in conformity with the administrative aims +demanded in that conference. Moreover, this seems very unlikely, because +the directives laid down at that conference dealt mainly with measures +which could not be carried out by the general administration, but only +by the Security Police, the SD, and the other organs and offices under +Reichsführer SS Himmler. In this connection special mention should also +be made of the powers vested in Reichsführer SS Himmler before the date +of that conference in his capacity of Reich Commissioner for the +Preservation of German Nationality. Actually, there is at the end of +Exhibit USA-609 a reference to a commission with which Himmler was +charged. In consideration of the fact that the Defendant Frank, in the +course of a short interview with Hitler about the middle of September +1939, had been told to take over the civil administration of occupied +Polish territory as Chief of Administration and had not seen Hitler for +a very long time after that, it can safely be assumed that the +directives laid down at the conference between Hitler and the Chief of +the OKW were intended, not for the Defendant Frank, but for Reichsführer +SS Himmler, who was the only person to have the necessary executive +organs at his disposal. + +THE PRESIDENT: We will adjourn now. + + [_A recess was taken._] + +DR. SEIDL: Mr. President, My Lordships, another document to which the +Prosecution has referred and which is also alleged to show the +criminality of the administrative aims of the Defendant Frank is Exhibit +Number USA-297, which is EC-344(16). The content of this document is a +discussion which the Defendant Frank is said to have had on 3 October +1939 with a certain Captain Varain. The Defendant Frank testified in the +witness box that he had never made any such or similar statements to an +officer. Moreover, a comparison of the dates shows that this +conversation, even if it should have taken place, can have no connection +with the subject of the conference between the Führer and the Chief of +the OKW, the latter not having been held until 17 October 1939, that is, +at a later date. + +Not within the framework of the evidence presented in connection with +the personal responsibility of the Defendant Frank, but in connection +with the accusation of so-called Germanization, a document was submitted +with the Exhibit USA-300, 661-PS. This is a memorandum entitled “Legal +Aspects of German Policy toward the Poles from the Ethno-Political Point +of View.” According to a note on the title page, the legal part of this +was to serve as a model for the Committee of the Academy for German Law +which dealt with legal nationality questions. This document can have no +probative value in connection with the personal responsibility of the +Defendant Frank. He testified in the witness box that he had given no +instructions for the writing of that memorandum and that he was not +aware of its contents. Over and above this, it would seem that no +substantive evidential value can be attached to that document within the +scope of this whole Trial. Nor is it evident, from the memorandum, who +wrote it or who gave instructions that it should be written. Its whole +form and content would seem to show that it is not an official document, +but rather the work of a private individual. It was stated to have been +found at the Ministry of Justice in Kassel. But in actual fact there has +been no Ministry of Justice at Kassel for many decades. All these +circumstances would seem to indicate that the material probative value +of this document is, to say the least, extremely small. + +But whatever the evidential value of minutes of conferences that took +place in the year 1939 on the occasion of the establishment of the +Government General, the following should be pointed out: + +In judging the conduct of the Defendant Frank it is not of such +essential importance to know what Hitler, he himself, or other persons +said on one occasion or another, but what policy the Defendant Frank +actually pursued toward the Polish and Ukrainian peoples. And here there +can be no possible doubt—on the basis both of the general result of the +evidence and, in particular, of entries in the diary of the defendant +himself—that he repudiated all tendencies and measures designed to +effect Germanization. That is shown with great clarity by the extracts +from the diary which I have submitted to the Tribunal. Thus on 8 March +1940 he declared at a meeting of department chiefs, that is, to an +audience of men who as leaders of the various main departments were +deputed to put his directives into practice: + + “I have been charged by the Führer to look upon the Government + General as the home of the Polish people. Accordingly no + Germanization of any sort or kind is possible. In your + departments you will please see that the two-language principle + is strictly observed; you will also point out to district and + provincial officers that no violence is to be used in opposing + such safeguarding of Polish national existence. We have in a + certain sense herewith taken over on trust from the Führer the + responsibility for Polish national life.” + +This declaration alone makes it apparent that the directives laid down +in the conference between Hitler and the Chief of the OKW on 17 October +1939, as contained in Exhibit USA-609, 864-PS, cannot possibly have been +made the subject of the duties with which the Defendant Frank was +charged. On the other hand, in view of the entire activities of the +Higher SS and Police Leader, East from the first day of his appointment, +it can safely be assumed that it was Reichsführer SS Himmler whom Hitler +charged with carrying out the directives laid down at his conference +with the Chief of the OKW. + +A diary entry of 19 February 1940 is on the same lines; in this the +Defendant Frank advocates the formation of a Polish government or +regency council. + +On 25 February 1940, at a service conference of officials of the +District of Radom, the Defendant Frank gave out, in program form, his +directives regarding general administration. On this occasion the +Defendant Frank said among other things: + + “1. The Government General comprises that part of the occupied + Polish area which is not a component part of the German Reich + ... + + “2. The Führer has decreed that this territory shall be the home + of the Polish people. The Führer and Field Marshal Göring have + impressed on me over and over again that this territory is not + to be subjected to Germanization. + + “3. In accordance with the instructions we have received under + the Führer’s decree Polish laws will remain in force here.” + +On 7 June 1942 the Defendant Frank stated word for word as follows: + + “It is not as rulers by violence that we come and go in this + country. We have no terroristic or oppressive intentions. Welded + into the interests of Greater Germany, the living rights of the + Poles and Ukrainians in this territory are also safeguarded by + us. We have not taken away from the Poles and Ukrainians either + their churches, their schools, or their education. We Germans do + not wish to denationalize by violent means. We are sufficient + unto ourselves, and we know that people must be born into our + community and that it is a distinction to belong to it. And that + is why we can look the world in the face in this our task.” + +These examples could be amplified by many more, which all show clearly +that the measures taken, at any rate by Frank, were intended to care for +the Polish nation and that he repudiated any terror policy. + +I now come to the so-called “peace-enforcing action.” When the campaign +against Poland had ended in September 1939 that did not mean that all +resistance had ceased. Very soon afterward new centers of resistance +sprang up; and when on 9 April 1940 German troops occupied Denmark and +Norway and on 10 May 1940 the German western army had begun their +attack, the leaders of the Polish resistance movement believed that, in +consideration of the general political and military situation, the time +for action had come. This resistance movement was all the more dangerous +because dispersed but not inconsiderable remnants of the former Polish +Army were active in it. A large number of entries in the diary of the +Defendant Frank show that the security situation deteriorated from day +to day during that period. Here for instance is an entry for 16 May +1940: + + “The general war situation requires that the most serious + consideration be given to the internal security situation of the + Government General. A large number of signs and actions lead to + the conclusion that there exists a widely organized wave of + resistance on the part of the Poles in the country and that we + are on the threshold of violent happenings on a large scale. + Thousands of Poles are already organized in secret circles; they + are armed and are being incited in the most seditious manner to + commit all kinds of violence.” + +In consideration of this menacing general situation, the order was +given—as the diary shows, by the Führer himself—that in the interest +of the maintenance of public security all measures were to be taken to +suppress the imminent revolt. That order was given through Himmler to +the Higher SS and Police Leader. The administration of the Government +General at first had nothing to do with it. It intervened, however, in +order as far as possible to prevent the Security Police and the SD from +taking violent measures and to make sure that innocent people should +under no circumstances lose their lives. + +The testimony given by the Defendants Frank and Seyss-Inquart in the +witness box and the evidence given by the witness Dr. Bühler have shown +that the efforts made by the administration of the Government General +were so far successful in that all the members of the resistance +movement rounded up by this special action were brought before a +drumhead court-martial introduced by a decree issued in 1939; and +moreover, the decisions of this court were not carried out before being +submitted to a Board of Pardon which in many cases modified the +sentence. The chairman of this Board of Pardon, until his appointment as +Reich Commissioner for the Netherlands, was the Defendant Dr. +Seyss-Inquart. As his testimony revealed, no less than half the death +sentences pronounced by the summary court were commuted to imprisonment +by the Board of Pardon. For the rest, in regard to the so-called +peace-enforcing action, I refer to the oral testimony and to the +extracts from the diary of the Defendant Frank which I read into the +record. + +Within the scope of the charges against him personally, the Defendant +Frank is accused of having supported the resettlement plans of the Reich +Commissioner for the Preservation of German Nationality (Himmler) and of +having thereby also committed a war crime. There is no question but that +resettlement, even when carefully planned and well prepared, means great +hardship for those who are affected by it; in many cases a resettlement +means the destruction of a person’s economic existence. Nevertheless, it +seems doubtful whether resettlement constitutes a War Crime or a Crime +Against Humanity, for the following reasons: + +Germany today is being flooded with millions of people who have been +driven from their homes and who own no property but what they carry with +them. The misery thereby caused, which is bound to increase to an +immeasurable degree in consequence of the devastation wrought by the +war, is so terrible that the bishops of the Cologne and Paderborn +ecclesiastical districts were moved on 29 March 1946 to bring this state +of affairs to the attention of the whole world. Among other things they +said: + + “Some weeks ago we found occasion to comment on the outrageous + happenings in the East of Germany, particularly in Silesia and + the Sudetenland, where more than 10 million Germans have been + driven from their ancestral homes in brutal fashion, no + investigation having been made to ascertain whether or not there + was any question of personal guilt. No pen can describe the + unspeakable misery there imposed in contravention of all + consideration of humanity and justice. All these people are + being crammed together in what remains of Germany without means + for earning a livelihood there. It cannot be foreseen how these + masses of people who have been driven from their homes can + become other than peace-disturbing elements.” + +My Lords, I am not mentioning this in order to point out the enormous +dangers connected with such measures, dangers which must arise, if only +out of the fact that in view of her planned deprivations of territory, +Germany—with an area reduced by 22 percent as compared with 1919—will +have to feed a population increased by 18 percent and that in future +there will be 200 inhabitants to the square kilometer. I am, further, +not pointing to this state of affairs to show that if the present +economic policy is continued and the so-called industrial plan is +maintained, Germany is heading for a catastrophe the consequences of +which cannot be confined to the German people. The evidential relevance +of these facts is however shown by the following: + +Millions of Germans were driven from their ancestral homes in accordance +with a resolution taken at Potsdam on 2 August 1945 by President Truman, +Generalissimo Stalin, and Prime Minister Attlee. + +GENERAL RUDENKO: ML President, excuse me for interrupting the +defendant’s counsel, but it seems to me that his legal considerations +and the criticism of the decisions taken at Potsdam have no bearing on +the present case. + +DR. SEIDL: Mr. President, may I briefly define my attitude on this? + +As far as I am concerned, I do not wish to criticize the decisions of +the Potsdam Conference. However, I am anxious to find out whether, +employing the rules of the Charter, a certain conduct which has been +alleged on the part of the Defendant Frank constitutes evidence for War +Crimes or Crimes against Humanity. It is only within the framework of +investigating that question that I find myself forced to go into the +decisions of the so-called Potsdam Conference and bring them up in my +argument. + +THE PRESIDENT: Dr. Seidl, the Tribunal considers that your references to +the Potsdam Declaration are irrelevant, and the objection of General +Rudenko is therefore sustained. You are directed to go on to some other +part of your argument. + +DR. SEIDL: Mr. President, I presume that the Tribunal have the +translation of my presentation at hand. I am not quite clear about the +question as to whether the final conclusion, which appears on Page 38, +is also affected by the decision of the Tribunal which you have just +announced. + +THE PRESIDENT: It is affected by that, and I think you can pass on to +Page 40, where you begin to deal with the subject of the Jews. That is +the second paragraph on Page 40. + +DR. SEIDL: Very well, Mr. President. + +The Defendant Frank is further accused of having approved and carried +out a program for the extermination of Jews of Polish nationality, +thereby infringing upon the laws of war and humanity. + +It is true that in a number of speeches given by the Defendant Frank in +his capacity as Governor General, he revealed his point of view on the +Jewish question. The extracts from the diary submitted by the +Prosecution in connection with this matter comprise practically +everything relevant thereto in the Defendant Frank’s diary of 10,000 or +12,000 typed pages. Nevertheless it shall not be denied that the +Defendant Frank made no secret of his anti-Semitic views. He spoke in +detail on this question when giving his testimony in the witness box. + +But the question of the importance to be attached to the diary entries +submitted by the Prosecution is quite another matter. Almost all of them +consist of statements made by the Defendant Frank in speeches, but there +has not even been an attempt by the Prosecution to prove the existence +of a causal connection between these statements and the measures carried +out against the Jews by the Security Police. + +As a result of the evidence, in particular of the testimony given by the +witnesses Dr. Bilfinger and Dr. Bühler, it can be looked upon as +certain—in connection with the secret decree concerning the +jurisdiction of the Security Police and the SD, of the year 1939, and +the decree concerning the transfer of certain tasks to the State +Secretary for Security—that all the measures concerning Jews in the +Government General were carried out exclusively by Reichsführer SS +Himmler and his organs. That is true for both the initiation and the +organization of ghettos and the so-called final solution of the Jewish +question. + +In regard to the latter it may be said here, on the basis of the +testimony given by the witnesses Wisliceny and Hoess and of the +documents presented by the Prosecution, that these measures were +undertaken on Hitler’s express orders and that only a small circle of +persons was concerned in their execution. This small circle was confined +in the main to a few SS leaders of Department IVA, 4b of the RSHA and +the personnel of the concentration camps that had been selected for the +purpose. + +The administration of the Government General had nothing to do with +these measures. The above facts also show that the anti-Semitic +statements by the Defendant Frank as submitted by the Prosecution have +no causal connection with the so-called final solution of the Jewish +question. Since a causal link must be established before the question of +illegality and guilt can even be considered, it does not seem necessary +to dwell further on the matter—all the less because the factual +elements of any punishable offenses can only be said to exist if at +least an attempt has been made, that is, if the commission of the +offense has at least been begun. Under the principles derived from the +criminal law of all civilized nations, the statements contained in the +diary of the Defendant Frank do not even constitute preparatory acts. In +consideration of the tense and sometimes extremely frangible +relationship between the Government General, on the one hand, and the +Reichsführer SS Himmler and the Higher SS and Police Leader Krüger, on +the other, it would also seem to be impossible to look upon the +statements of the Defendant Frank as acts of incitement or complicity. +The evidence has shown on the contrary that all the efforts of the +Defendant Frank to investigate successfully the rumors about the +elimination of the Jews, at least within his own administrative +district, failed completely. Only to complete the picture need it be +mentioned that the Concentration Camp of Auschwitz was not in the +Government General, but in that part of Poland which was annexed to +Upper Silesia. For the rest it cannot be clearly seen whether the +erection and administration of concentration camps is in itself to be +looked upon as fulfilling the requirements of a war crime or a crime +against humanity, or whether the Prosecution considers the establishment +of such camps solely as part of the so-called common plan. Setting aside +the crimes committed in the concentration camps and considering the +nature of concentration camps to be that in which people are confined +for reasons of state and police security on account of their political +opinions and without an opportunity of defending themselves in an +ordinary court of law, it appears at least doubtful whether an occupying +power should not have the right to take such necessary steps as this in +order to maintain public order and security. Apart from the fact that it +was not National Socialists and not Germans at all who first established +such camps, the following must be mentioned: + +In the American Occupation Zone alone there were, according to a +statement ... + +DR. ROBERT M. KEMPNER (Assistant Trial Counsel for the United States): +Mr. President, we raise an objection. This matter is completely +irrelevant. + +THE PRESIDENT: Dr. Seidl, do you wish to say anything in answer to the +objection? + +DR. SEIDL: Mr. President, I beg you to overrule the objection by the +Prosecution, and I should like to say the following: I am not interested +in criticizing an occupying power; I am only concerned with the question +of whether certain conduct of which the Defendant Frank has been accused +by the Prosecution constitutes the evidence of a criminal act. + +I base my case on the assumption that what is proper for one occupying +power must, under similar circumstances, be allowed for another +occupying power, especially when it is a question of accusations made +against the defendant concerning actions carried out during the war, +while, the state of war with Germany having ceased on 8 May 1945 at the +very latest, these urgent reasons now perhaps no longer exist to that +extent. + +THE PRESIDENT: The Tribunal sustains the objection. There is no evidence +of the statements which you have made. And in any event, the Tribunal +considers them entirely irrelevant. + +DR. SEIDL: I assume, Mr. President, that in that case I may continue +with the last paragraph on Page 44. + +THE PRESIDENT: I think so, yes, the last paragraph. + +DR. SEIDL: It is not necessary to go into this matter in more detail +here, because the evidence has shown that it was the Defendant Frank who +from the first day of the National Socialists’ assumption of power +fought against the police-state system and, above all, decried the +concentration camps as an institution which could in no way be made to +harmonize with the idea of a state founded on law. In this connection I +refer to the testimony given by the witness Dr. Stepp, to the +defendant’s own statement, and above all to the extracts from the +defendant’s diary which I put in evidence. The evidence has further +shown that the establishment and administration of the concentration +camps lay within the sphere of Reichsführer SS Himmler’s organization. +The camps, both in Reich territories and in all areas occupied by German +troops, were exclusively under the command of the SS-WVHA or the +Inspector General of the Concentration Camps. Neither the Governor +General nor the general administration of the Government General had +anything to do with these camps. + +A further point of accusation against Frank is the charge that he +supported violence and economic pressure as a means of recruiting +workers for deportation to Germany. It is true that during the recent +war many Poles came to work in Germany. But in this connection the +following should be noted: + +Even before the first World War, hundreds of thousands of Poles came to +Germany as vagrant workers. This stream of vagrant workers continued to +flow also during the period between the first and the second World Wars. +In consequence of the unfortunate demarcation line, the Government +General became an area that was distinctly overpopulated. The +agricultural excess production areas had fallen to the Soviet Union, +whereas important industrial areas were incorporated into the Reich. +Under these circumstances, and because there were no riches to be found +in the soil, the only valuable means of production lay in the working +capacity of the population. And this—at any rate for the first few +years—could not be utilized to a sufficient extent, because the other +production factors were lacking. In order to avoid unemployment, and +above all in the interest of maintaining public order and security, the +administration of the Government General was bound, if only for reasons +of State policy, to try to transfer as many workers as possible to +Germany. + +There can indeed be no doubt that during the first years of the +administration most of the Polish workers went to the Reich voluntarily. +When later, in consequence of the continuous bombing raids, not only +Germany’s cities but also her factories crumbled to ruins and a not +inconsiderable part of Germany’s capacity for the production of war +materials had to be removed to the Government General for reasons of +security, the aim of the Defendant Frank necessarily was to put a stop +to any further transfer of labor. Over and above this, however, the +Defendant Frank had from the very beginning opposed all violent measures +in recruiting labor and solely for security reasons and in order not to +create new centers of unrest had insisted that no compulsory measures +were to be used and only propagandistic methods employed. That is +established by the testimony of the witnesses Dr. Bühler and Dr. Böpple, +and also by a large number of entries in the diary. In my presentation +of evidence I have already referred to several of them. Thus, for +example, the Defendant Frank said, among other things, on 4 March 1940: + + “... I refuse to issue the decree demanded by Berlin + establishing compulsory measures and threatening punishment. + Measures that, viewed from the outside world, create a sensation + must be avoided under all circumstances. There is everything to + be said against the removal of people by violence.” + +On 14 January 1944 he made a similar statement to the Commander of the +Security Police. I quote: + + “The Governor General is strongly opposed to the suggestion that + police forces should be used in recruiting labor.” + +These quotations could be amplified by many more. + +I refer further to the evidence presented by me in respect to the +treatment of Polish workers in Germany. The Defendant Frank continuously +and repeatedly pleaded for better treatment of the Polish workers in the +Reich. + +For the rest, the legal position in the matter of recruiting foreign +labor does not appear to be quite clear. I do not intend to go further +into the legal questions pertaining to this matter. The defense counsel +for the Defendant Sauckel will go into this matter fully and I just wish +to say the following: + +In the literature of international law it is undisputed that the +conception of vital stress (Notstand) as recognized in criminal law +would, in international law, too, preclude illegality in the case of a +given violation of law. If the vital interests of a State are +endangered, that State may, these interests being preponderant, +safeguard them if necessary by injuring the justified interests of a +third party. Even those writers who deny the application of the “vital +stress” theory to international law—they are in the minority—grant the +threatened State the “right to self-preservation” and therewith the +right to enforce “necessities of state” even at the cost of the just +interests of other States. It is a recognized principle of international +law that a State need not wait until the direct threat of extinction is +at its very threshold. There can be no doubt that after the entry into +the war of the United States, with which for all practical purposes the +productive capacity and the military might of almost the whole world +were gathered together to overthrow Germany, the German Reich was faced +with a situation which not only threatened the State as such with +extinction but over and above that placed the bare existence of the +people in jeopardy. Under these circumstances the right of the State +leadership to make use of labor forces, even those in occupied +territory, in this defensive struggle had to be acknowledged. + +In addition, the following should not be passed over: The Prosecution +alleges that many, if not most of the foreign workers were brought to +Germany by force and that they were then obliged to do heavy labor under +degrading conditions. However one may look upon the evidence on this +question, the fact cannot be ignored that there are hundreds of +thousands of foreign workers still living in Germany who were allegedly +deported thither by force. They refuse to return to their homes, +although no one now attempts to hinder them. Under these circumstances +it must be assumed that the force cannot have been as great, nor the +treatment in Germany as bad, as is alleged by, the Prosecution. + +Another allegation refers to the closing of the schools. It may be left +out of account whether international law recognizes any criminal +classification which would make the closing of schools appear as a war +crime or a crime against humanity. In time of war this would seem to be +all the more unlikely as it is well known that schooling in wartime was +considerably reduced, not only in Germany, but also in many other +belligerent countries. There is all the less reason to investigate this +question more thoroughly, as the evidence has shown that the schools +were for the most part already closed when the defendant assumed office +as Governor General. During his whole period of office he left no means +untried to reactivate, not only the elementary and vocational, but also +the higher forms of school. In this connection I will only mention the +university courses which he initiated. + +The Soviet Prosecution has presented as Exhibit Number USSR-335 a decree +issued by the defendant to combat attacks against German reconstruction +work in the Government General, dated 2 October 1943. There is no +question but that this decree setting up a drumhead court-martial is not +in conformity with what must be demanded of court procedure under normal +circumstances. However, this decree can only be judged correctly if the +circumstances which led to its promulgation are taken into +consideration. + +In general it should first be said that the reconstruction work of the +administration of the Government General had to be carried on in a +difficult territory and under circumstances which must be among the most +difficult that have ever fallen to the lot of any administration. After +the collapse of the Polish State, the German administration found, so to +speak, a vacuum in which to organize and administer. In all spheres of +administration they had to start completely afresh. If, in spite of the +difficulties, they succeeded fairly quickly in repairing the war damage, +particularly in the communications system, then that is incontestably to +their credit. + +The year 1940 was, however, to prove the only one in which the work of +restoration in the area of the Government General could be carried out +under fairly normal conditions. As the year 1941 began, the Germans +proceeded to concentrate their troops for action against the Soviet +Union and therewith initiated a period of immense strain for the +administration of the Government General. The Government General became +the greatest repair workshop and the greatest military transit territory +that history has ever known. This carried in its train an increasing +deterioration of the security situation. The resistance movement began +to reorganize on an intensified scale. But the menace inherent in the +security situation developed to a still more alarming degree when the +German armies were forced to arrest their progress in Russia and +when—after the catastrophe of Stalingrad—their march forward was +transformed into a general retreat. In the course of the year 1943, the +activities of the resistance movement and in particular of the numerous +guerrilla bands, in which thousands of lawless elements were grouped, +reached extremes that represented a danger to any kind of orderly +administration. The administration of the Government General was forced +again and again to deal with this matter. Thus on 31 May 1943 a service +meeting of the authorities of the Government General was held to deal +with the security situation. At that meeting the President of the Chief +Department Internal Administration felt obliged to state among other +things—I quote from the diary: + + “... In their activities the guerrilla bands have revealed an + increasingly well-developed system. They have now gone over to + the systematic destruction of institutions belonging to the + German administration; they steal money, procure typewriters and + duplicating machines, destroy quota lists and lists of workers + in the communal offices, and take away or burn criminal records + and taxation lists. Moreover, raids on important production + centers in the country have multiplied, for instance, on + sawmills, dairies, and distilleries, as also on bridges, railway + installations, and post offices. The organization of the + guerrillas has become strongly military in character.” + +In the course of the summer and autumn of the year 1943, the increasing +activities of the partisans and the improvement in their military +organization and equipment so endangered security in the Government +General that it might perhaps under the circumstances have been better +to turn over its entire administration to the appropriate army +commanders and to proclaim a state of emergency. It is indeed not +possible to describe conditions then existing in the Government General +as anything else but a state of war. It was the period when at any +moment the possibility had to be taken into account that a general +revolt would break out over the whole country. + +All this notwithstanding, the Defendant Frank even then made every +effort under all circumstances to thwart any violent measures by the +Security Police and the SD. It was in order to exercise at least a +modifying influence on the Security Police and the SD and to have at +least some guarantee against excesses that the Defendant Frank agreed to +the order dated 9 October 1943 setting up a drumhead court-martial. + +It is quite obvious from the content of this decree that its main +purpose was to serve as a general preventive. It was meant as a +deterrent to the guerrillas, and there can be no question but that in +this it was temporarily successful. For the rest, the evidence has shown +that even while this drumhead court-martial order was in operation, the +Boards of Pardon continued to act and that many sentences passed by the +drumhead court-martial were reversed by the boards. + +In the course of the present Trial repeated mention has been made of the +report by SS Brigadeführer Stroop concerning the destruction of the +Warsaw Ghetto in the year 1943; Exhibit USA-275 (1061-PS). Both that +report and a number of other documents reveal that all the measures in +connection with the Warsaw Ghetto were undertaken exclusively on the +direct instructions of Reichsführer SS and Chief of the German Police +Himmler. I refer in this connection to the affidavit of SS Brigadeführer +Stroop of 24 February 1946, submitted by the Prosecution as Exhibit +Number USA-804 (3841-PS) and to the affidavit of the same date given by +the former adjutant of the SS and Police Leader of Warsaw, Karl Kaleske. +That is Exhibit Number USA-803 (3840-PS). These documents show quite +clearly that those measures, like all others within the competence of +the Security Police and undertaken on direct orders from either +Reichsführer SS Himmler, the Higher SS and Police Leader, East, or on +instructions from the RSHA, were carried out exclusively by the Security +Police and the SD and that the administration of the Government General +had nothing to do with them. + +The Soviet Prosecution has also put in evidence as Exhibit USSR-93, +under Article 21 of the Charter, the Report of the Polish Government. +That report makes no distinction between the areas which were +incorporated in the Reich and the territories of the former Polish State +which were grouped together in the Government General. But particularly +in view of the fact that the report makes no substantial statements as +to the personal responsibility of the Defendant Frank, it does not seem +necessary to delve further into this voluminous document. Like the +Indictment itself, the report constitutes an accusation of a general +nature; it does not deal in detail with the results of investigations +and with evidence which might justify the conclusions drawn in the +report. The objections to be raised to the report must appear all the +more valid, since, to take only one example, in Appendix (1) of the +report directives for cultural policy are appended which obviously +purport to represent instructions given by the Governor General or his +administration. Actually, however, nothing of the kind is to be found +either in the _Official Gazette_ of the Government General or in any +other documents. The witness Dr. Bühler stated during his interrogation +that the administration of the Government General had never issued such +or similar directives. In consideration of this alone, it would seem at +most admissible to attach substantive probative value to this Exhibit +USSR-93 only insofar as the statements therein made are confirmed by +genuine documents and other unobjectionable evidence. + +According to the Indictment, and in particular according to the +statements in the trial brief presented by the Prosecution, the +Defendant Frank is also alleged to be responsible for the +undernourishment of the Polish population. Actually, however, the +Prosecution is unable to produce any evidence to show that in the area +governed by the Defendant Frank either famine occurred or epidemics +broke out. The evidence has revealed on the contrary that the efforts of +the Defendant Frank in the years 1939 and 1940 were successful in +inducing the Reich to deliver no less than 600,000 tons Of grain. That +made it possible to overcome the food difficulties caused by the war. + +It is true that in the following years the Government General +contributed in no small degree to the war effort by itself delivering +grain. But it must not be overlooked that these deliveries were made +possible by an extraordinary increase in agricultural production in the +Government General. And this was in its turn made possible by a +farseeing economic policy, especially by the distribution of +agricultural machinery, seed corn, and so on. Nor should it be forgotten +that the deliveries of grain by the Government General from the year +1941 onward also served to feed the Polish workers placed in Reich +territory and that in general these grain deliveries were utilized to +maintain the internal balance between the European economic systems. In +principle, however, the following should be said concerning this +question: + +In a number of points of accusation the Prosecution has leveled +reproaches against the administrative activities of the Defendant Frank +in his capacity as Governor General without making an attempt to give an +even approximately adequate description of the general work of the +defendant and without pointing out its inherent difficulties. There can +be no question but that such an attitude transgresses the fundamental +rules of any criminal procedure. It is a recognized principle derived +from the criminal law principles of all civilized states that a uniform +natural process must be judged in its entirety and that its evaluation +must take into account all the circumstances of the case that are in any +way fit for consideration by the court when passing judgment. This would +seem to be all the more necessary in the present case, as the Defendant +Frank is accused of having pursued a long-term policy of oppression, +exploitation, and Germanization. + +My Lords, if the Defendant Frank had in truth had any such intentions, +then he could certainly have attained his goal in far simpler fashion. +It would not have been necessary to issue hundreds of decrees every +year, decrees which for example for the year 1940 reached the +proportions of this volume that I hold here in my hand. The Defendant +Frank, from his first day of office, set himself to integrate the entire +economic policy in a manner which one can only term constructive. +Certainly he did this partly in order to strengthen the production +capacity of the German nation engaged in a struggle of life and death. +But at the same time there can be no doubt that the success of these +measures also benefited the Polish and Ukrainian peoples. I do not +intend to go into this matter in detail. I will only ask the Tribunal in +this connection to take notice of the report given by the Chief of +Government on the occasion of the fourth anniversary of the existence of +the Government General on 26 October 1943. I have included this report +in the document books I put in evidence. It is in Volume IV, Page 42. +The report gives a concise summary of the measures taken and the +successes achieved by the administrative acts of the defendant during +these 4 years in all fields of industrial economy, in agriculture, +commerce, and transport, in the finance and credit system, in the sphere +of public health, and so on. Only in consideration of all these facts is +it possible to form an approximately correct estimate of the whole +position. For the sake of completeness I will add that the defendant by +his administration succeeded in reducing the danger of epidemics—in +particular typhus and typhoid—to a degree which had been found +impossible in this area in the preceding decades. + +If much of what had been achieved by the Defendant Frank in the +Government General was destroyed in the subsequent fighting, that can +certainly furnish no grounds for reproach against the general +administration, which had nothing to do with military measures. + +My Lords, I am certainly not going to deny that in the course of the +recent war terrible crimes were committed in the territory known as the +Government General. Concentration camps had been established in which +mass destruction of human beings was carried out. Hostages were shot. +Expropriations took place; and so on. The Defendant Frank would be the +last to deny this; he himself waged a 5 year struggle against all +violent measures. The Prosecution has put in evidence, as Exhibit Number +USA-610 (437-PS), a memorandum which Frank addressed to the Führer on 19 +June 1943. In this memorandum, on Page 11, he listed nine points in +which he sharply condemned all the evils which had arisen in consequence +of the violence practiced by the Security Police and the SD and of the +excesses committed by various Reich authorities, against which all his +efforts had proved unavailing. + +These nine points are in the main identical with the points of +accusation against Frank. The content of the memorandum of 19 June 1943, +however, shows very plainly that the defendant denies responsibility for +these abuses. It reveals, on the contrary, quite clearly that neither +the defendant nor the general administration of the Government General +can be held responsible for the said evils but that the whole +responsibility must be borne by the institutions mentioned above, in +particular the Security Police and the SD, or the Higher SS and Police +Leader, East. If the Defendant Frank had had the instruments of power +wherewith to abolish the evils he condemned, it would not have been +necessary for him to address that memorandum to Hitler at all. He would +then himself have been able to take all necessary steps. In addition to +this the evidence has shown that that memorandum of 19 June 1943 was not +the only one addressed to the Führer on the matter. It is clear from the +testimony of the witnesses Dr. Lammers and Dr. Bühler and the +defendant’s own statements in the witness box that from the year 1940 +onward he sent protests and memoranda at regular intervals of a few +months both to Hitler personally and to the Chief of the Reich +Chancellery. These written protests were invariably on the subject of +the violent measures taken and the excesses committed by the Higher SS +and Police Leader and the Security Police, including the SD. But none of +the protests met with success. + +As can also be said on the basis of the evidence, the Defendant Frank +continually made suggestions to Hitler on the subject of improving +relations between the administration of the Government General and the +population. The memorandum of 19 June 1943 is also cast in the form of a +comprehensive political program. It includes, moreover, all the +essential points of protest contained in a memorandum presented in +February 1943 to the Governor General, at his own desire, by the leader +of the Ukrainian Chief Committee. This latter memorandum was put in +evidence by the Prosecution as Exhibit Number USA-178 (1526-PS). Such +suggestions were also consistently rejected by Hitler. + +Under these circumstances it is pertinent to ask what else the Defendant +Frank could have done. Certainly he should have resigned. But that too +he did. He offered his resignation no less than 14 times, the first time +as early as 1939. His resignation was rejected by Hitler as often as it +was tendered. But the Defendant Frank did more. He approached Field +Marshal Keitel with the request that he be allowed to rejoin the Armed +Forces as a lieutenant. That was in the year 1942. Hitler refused his +consent to that too. These facts allow of only one conclusion, namely, +that Hitler saw in the Defendant Frank a man behind whose back he (with +the help of Himmler and the organs of the Security Police and the SD) +could carry out the measures he considered requisite for attaining the +aims of his power policy. + +My Lords, when it became more and more obvious that Hitler and +Reichsführer SS Himmler were about to abolish the last remnants of a +State founded on law; when it became increasingly apparent that the +power of the Police knew no bounds and that a police state of the purest +water was in process of development, the Defendant Frank came forward +and addressed four great speeches to the German public with a last +appeal on behalf of the idea of a State founded on law. He did that when +Hitler stood at the summit of his power. He addressed this appeal to the +German public at a time when the German forces were marching on +Stalingrad and into the Caucasus, when the German Panzer Armies in +Africa stood at El Alamein, barely 100 kilometers from Alexandria. In +the course of the evidence I read some extracts from these great +speeches which the Defendant Frank made in Berlin, Heidelberg, Vienna, +and Munich. Those speeches contained a clear repudiation of every form +of police state and championed the idea of the State founded on law, of +the independence of the judiciary, and of law as such. These speeches +found a tremendous echo among lawyers, but unfortunately not in wider +circles. Nor in particular were they echoed by the men who alone would +have possessed the power to ward off the threatening catastrophe. + +The consequences of this attempt to avert the extinction of the idea of +the State founded on law by a last great effort are well known. The +Defendant Frank was deprived of all his Party offices: he was dismissed +from his post as President of the Academy for German Law. The leadership +of the National Socialist Lawyers Association was conferred on the Reich +Minister of Justice, Thierack. Frank himself was forbidden by Hitler to +speak in public. Although the Defendant Frank again on this occasion +sent in his resignation as Governor General, Hitler refused to accept +it, as he had always done before. The reason for this, as given in a +letter from the Reich Minister and Chief of the Reich Chancellery to the +Defendant Frank, was that considerations of foreign policy had caused +the Führer again to refuse this latest request of Frank to be allowed to +resign. According to everything that has emerged from the evidence in +this Trial it may be looked upon as certain that it was not only, and +probably not even mainly, for such reasons that Hitler refused to accept +Frank’s resignation. + +The decisive factor was obviously the consideration that it was better +policy not to let the Security Police and Reichsführer SS Himmler’s +other organs fulfill their appointed task openly, but rather to let them +continue their work under cover while maintaining a general civil +administration under the Governor General. + +Naturally this open breach between the Defendant Frank, on the one hand, +and Hitler and the State Police system represented by Reichsführer SS +Himmler and the Higher SS and Police Leader, East, on the other, could +not fail to have repercussions on the position of the defendant in his +capacity as Governor General. Still more than before the various Reich +authorities now began to interfere in the administration of the +Government General. Above all, however, it was quite clear from the +summer of 1942 onward that the Higher SS and Police Leader, East, +together with the organs of the Security Police and SD subordinated to +him, took no more notice at all of any instructions issued by the +Governor General and the general administration. + +Both in the Government General and in the Reich itself legal +institutions receded more and more into the background. The State was +transformed into an unadulterated police state, and developments took +the inevitable course which the Defendant Frank had foreseen and +feared—the course which on 19 November 1941 he had outlined at a +congress of the principal section chiefs and Reich group leaders of the +National Socialist Lawyers Association in the following words: + + “Law cannot be degraded to a position where it becomes an object + of bargaining. Law cannot be sold. It is either there or it is + not there. Law cannot be marketed on the stock exchange. If the + law finds no support, then the State too loses its moral stay + and sinks into the depths of night and horror.” + +THE PRESIDENT: We will begin again at 10 minutes past 2. + + [_The Tribunal recessed until 1410 hours._] + + + + + _Afternoon Session_ + +THE PRESIDENT: Dr. Pannenbecker. + +DR. OTTO PANNENBECKER (Counsel for Defendant Frick): Mr. President, +Gentlemen of the Tribunal: + +The American Prosecution, through Dr. Kempner, has charged Defendant +Frick with criminal actions according to Article 6, Items a, b, and c of +the Charter. I should like first to examine the question as to whether +Article 6 of the Charter, with its list of criminal acts, is to be +considered as the authoritative expression of material penal law which +would lay down, in a manner irrevocably binding on, and not subject to +revision by the Tribunal, what actions are to be regarded as punishable; +or whether Article 6 of the Charter concerns a rule of procedure +defining the competence of this Tribunal for specific subject matters. + +THE PRESIDENT [_Interposing_]: Perhaps it will be for the convenience of +the interpreters if I say that we might, as it is now nearly half past +2, sit without a break until 4 o’clock, when we rise. + +DR. PANNENBECKER: The latter interpretation was implied in the +Prosecution’s presentation of the case by Sir Hartley Shawcross’ remark +that although Article 6 of the Charter fills a gap in international +penal procedure, the material penal law to be applied to the defendants +has already been previously standardized by positive laws. Part II of +the Charter, beginning with Article 6, is accordingly entitled: +“Jurisdiction and General Principles,” and it may be inferred therefrom +that Article 6 is intended to establish a ruling as to the competence of +this Tribunal as to procedure in specific groups of crimes. + +Sir Hartley Shawcross’ statements were directed against the objection +that it is inadmissible and in contradiction with a basic legal +principle to punish someone for an act which had not yet been forbidden +at the time it was committed; an objection which has as a basis the +conception that the Charter has created new material penal law with +retroactive effect. It should be examined whether the prohibition of +retroaction of penal laws is a legal principle of such importance that +it should not be infringed. I need not state to this Court the reasons +why this legal principle found general recognition in all civilized +countries as a prerequisite and basic precept of justice. + +In contrast to this, the Prosecution has in its speech charged the +defendants with the fact that they themselves had continuously +disregarded law and justice, and inferred from this that the defendants +in this Trial could not appeal to such a legal principle. I do not +believe, however, that such an argument can be decisive in this Trial. +The Prosecution has replied in the negative to the further question of +whether it would not have been right to pay back in the same coin and +not allow the defendants of this Trial any possibility at all to defend +themselves in a proper legal procedure. Such a course of simply +exercising the power of the victor over the defendants has purposely not +been assumed by the signatory powers for reasons presented in detail by +the Prosecution. On the contrary, Sir Hartley Shawcross has appealed to +the Tribunal to apply in this procedure—I quote—“the undisputed +principles of international custom.” + +If, however, it is intended to proceed in such a manner, then an +examination must take place in keeping with the same principles of law, +to determine the question whether the deeds with which the defendants +are charged can be regarded as criminal acts for which punishment is +possible according to the recognized principles of international custom. +It is not, according to these principles, an argument if the use of a +legal principle as fundamental as the prohibition of retroaction in +penal law is in actual application to be made dependent on whether or +not the defendants concerned themselves with law and justice. The +decision of the signatory powers to subject, on the basis of +considerations which have been seriously weighed, the conduct of the +defendants to a proper trial recognizing all legal principles of +international custom, therefore signifies not only the observance of +legal procedure with all assurances of fair trial, but such a decision +by the signatory powers also signifies adherence to the fundamental +principles of a material guarantee of justice, of which the prohibition +of retroactive penal laws is one. + +In this connection I should like to point out that the decreeing of the +retroactive validity of penal laws, when so ordered by the National +Socialist Government for certain individual cases, to which Dr. Stahmer +has already referred, shocked the entire civilized world. At that time, +the violation of such a principle of law was generally condemned as a +deplorable retrogression in civilization. I also ask the Tribunal to +recall that one of the first measures taken by the occupation powers for +deliverance from the National Socialist abuse of the law was to declare +void any laws which had a retroactive effect on the material penal +legislation. + +In view of this situation there exist valid reasons, I believe, why +Article 6 of the Charter should, in accordance with its heading, be +regarded as a ruling on the jurisdiction of this Tribunal, all the more +so as the signatory powers have already and with so much emphasis +insisted on a renewed strict and uniform observance of the prohibition +against retroactive penal laws. + +On the basis of such an interpretation, whereby Article 6 establishes +the jurisdiction of this Tribunal, it would be for the Tribunal by its +own examination not only to determine whether the charges on which the +Indictment is based are proved, but also to rule on the legal question +as to whether, for the facts established in each case by the +Prosecution, there exists a criminal law which makes punishment +possible. To revert in this way to provisions of material criminal law +in existence at the time the act was committed does not mean that it +would be impossible for this Tribunal to call the accused to account for +offenses which are punishable under all circumstances. There are, +however, a number of restrictions resulting from this which in the +opinion of the Defense it would be better to accept rather than violate +a principle so essential to just procedure as is the prohibition of +retroaction in criminal laws. I am therefore of the opinion that it is +entirely possible, and not incompatible with the necessity for just +expiation for war crimes, to interpret Article 6 in accordance with its +heading as a ruling on the jurisdiction of this Court, but not as new +material criminal law.[1] The next remarks concern themselves with the +conspiracy, a matter which has been dealt with by Dr. Stahmer to such an +extent that I can omit these pages. I continue now on Page 7 with the +summary. + +The Charter does not impose the interpretation that a defendant is +responsible also for such acts of commission as exceed the measure of +his participation in the common plan. The wording of the Charter, “in +the execution of a common plan,” does not contradict the interpretation +that the Charter establishes liability for acts of commission which +remained within the scope of the said plan. To that extent the +assumption of liability for the actions of others complies with a demand +of justice, but beyond that it would violate essential legal principles. +The Defense therefore advocates the concept that, as far as the actions +of others are concerned, for which a defendant is to be made liable, +proof must be required that these actions, in the manner of their +execution, corresponded to the intention of the defendant. To give an +example: + +The participation of a defendant in rearmament against the regulations +of the Versailles Treaty does not in itself justify the assumption that +that defendant also desired a war of aggression which was later on +planned by others in the further plan of restoring military power to the +German people. + +I should now like to turn to the various categories of crimes of which +the Defendant Frick is accused, taking first of all the assertion of the +Prosecution that the defendant participated in the planning and +preparation of wars of aggression. With regard to the problem as to +whether a war of aggression is a criminal offense according to the +concepts of law for the period in question, I refer, in order to avoid +repetition, to the statements of Professor Jahrreiss, with which, in +behalf of the Defendant Frick, I fully concur. + +By virtue of these convincing statements, there exists only one +possibility of punishing co-operation in a war of aggression as a +criminal offense capable of being perpetrated by individual persons, +namely, when, contrary to the statement of Sir Hartley Shawcross, the +Charter is applied as a standard of material penal law which has for the +first time defined, with retroactive effect, a war of aggression as a +criminal offense by individual persons. From the point of view of the +other interpretation, which regards Article 6 of the Charter as a +procedure regulating the jurisdiction of this Court, the Defense holds +that the deduction is cogent that the Court is indeed declared competent +to judge offenses against peace, but that the criminal guilt of the +individual defendants is not proved therewith because one condition for +this is lacking, namely, the possibility of establishing that the +defendants have offended against a principle of generally valid +international custom or a principle of national law which defined the +war of aggression at the time it took place and declared it punishable +as a crime of which a single individual could be guilty. + +As it happens, the statesmen, during the period between the two World +Wars, have neglected to establish adequate measures of general validity, +by which it would have been made clear that anyone who, after the first +wholesale slaughter of peoples, organized a second World War, would go +about with a rope around his neck. The statements of the Prosecution, +that such rules of international law are necessary, appear to be +absolutely convincing, but the fact cannot be overlooked that such rules +were nevertheless not created by the statesmen of that period at the +right time. A missing rule of law, fashioned to fit a special case, +cannot be replaced subsequently by an order of procedure or by the +sentence of a Court whose task is to apply the general law, but not to +create it for a single special case. + +I shall now turn to the actual statements of the Prosecution concerning +the participation of the Defendant Frick in the planning and preparation +of wars of aggression. + +The Prosecution sees such activity already in Frick’s earliest +co-operation with the Party, which he continued until the year 1933, in +order to bring Hitler to power. The Prosecution appraises in a similar +way the subsequent activity of Frick after the taking over of the +Government by Hitler, when he helped to consolidate the power of the +Party and its leaders through measures of domestic policy, especially by +his participation in the legal measures by which armed forces were +created, and finally by his collaboration in measures by which direct +preparations were made in case of war. + +Proceeding from the interpretation that only deliberate participation by +the defendant in the preparation of a war of aggression is of penal +significance, I shall not take up the question as to whether the +Prosecution has proved that Frick was aware that his collaboration in +the advancement of the Party and its aims constituted a preparation for +war, and intended it as such, and therefore helped to bring the war +about. + +In this connection the Prosecution has made the assertion that Hitler +and his Party from the very beginning openly pursued the aim of bringing +about a change in Germany’s situation in foreign politics by means of +war. On the basis of this statement the Prosecution has declared that no +special proof is necessary that in working for Hitler and his Party each +of the defendants also knowingly collaborated in the preparation of a +war of aggression. + +As proof of the fact that Hitler and his Party had from the beginning +planned a war of aggression, the Prosecution refers to the Party +Program, which names as one of its aims the abolition of the Treaty of +Versailles. No word is said, however, in the Party Program that this aim +should be achieved by force of arms. In the Party Program, as the +testimony of the Defendant Von Neurath has also shown, among other +things, there is nothing to prove an intention existing from the very +beginning to wage a war of aggression. Nor is anything different found +in the other official publications of the Party from the time previous +to Hitler’s assumption of the Government. Because as the Party did not, +on the basis of its official publications, reveal any intention of +bringing about the revision of the Versailles Treaty by force of arms, +it was even before 1933 authorized outside the territory of the Reich, +as for example in 1930 in Danzig, when it received the sanction of the +then High Commissioner of the League of Nations and of the Polish +Resident General. + +From the time of his assumption of power on 30 January 1933 Hitler, as +responsible head of the Government, adopted a quite unequivocal attitude +with regard to the ways and aims of his foreign policy, both in official +speeches and discourses as well as in private conversations. +Unchangingly, and upon every occasion that presented itself after his +assumption of power, he stressed his absolute desire for peace and his +abhorrence of war, and he always defended this attitude with convincing +reasons. He repeated again and again that he intended to obtain certain +revisions of the Versailles Treaty by peaceful means only. I need not +repeat the quotations to that effect from Hitler’s speeches, which were +read by the Prosecution to prove how Hitler deceived the world, and the +people he ruled, by his peace talks. And the world, including the German +people, took these speeches which he, as responsible head of the +Government, made again and again, quite seriously. In the face of that, +warning voices which at an early stage were convinced that Hitler wanted +war, remained a hopeless minority throughout the world. + +The Prosecution has repeatedly alluded to this world belief which took +Hitler’s assertions of peaceful intentions seriously, and the best proof +of this delusion about peace even among the foreign statesmen, who also +knew the Party Program, would certainly appear to lie in the fact that +these statesmen neglected to so vast an extent to arm against Hitler’s +war of aggression, in which nobody in Germany and in the world believed +seriously except those who were directly initiated into Hitler’s most +secret plans. From the Party Program and from isolated wild speeches +made before 1933 during the period of parliamentary opposition, it is +not possible to prove a continuous preparation for a war of aggression +since the twenties, which is alleged to have been discernible to anybody +who took a glance at the Party Program. + +The Prosecution contends further that even if the warlike intentions +were not discernible in a general way at first, the intention of Hitler +to prepare a war of aggression must have been clearly visible to the +Defendant Frick on account of the duties which he had to fulfill after +30 January 1933 in his capacity as Reich Minister of the Interior. These +duties included measures for the strengthening of the internal political +power of Hitler and his Party. The Prosecution referred in this +connection to the collaboration of Frick in the legal decrees by means +of which the opposition against Hitler’s system of government was +destroyed in parliament and in the country; further, to the legislative +measures which eliminated real self-government in the cities and +communities, and to legislative and administrative decrees by which +opponents of the National Socialist system were excluded from taking any +part in the business of the State and in economic life. + +The Prosecution has submitted that without these measures Hitler could +not have conducted another war, for the beginning of which the complete +destruction of opposition in the country was said to be a necessary +prerequisite—particularly the establishment of Hitler’s absolute +dictatorship. Yet in all the measures I have enumerated, a direct +connection with the preparation for war is lacking. For these measures +had equal meaning and significance, unconnected with a subsequent war, +merely as projects of a National Socialist domestic policy. It has not +been proved that beyond that the Defendant Frick was informed of +Hitler’s more far-reaching plans, namely, after consolidating his power +at home to pursue the aims of the Party’s foreign policy not by peaceful +but by military means. + +By establishing retrospectively that the strengthening of Hitler’s inner +political authority was a necessary condition for his intentions for war +as revealed later, nothing is achieved unless proof is forthcoming that +Hitler had from the beginning aimed at power in the domestic sphere only +as a first step toward the waging of wars, and that Frick was aware of +this when he took part in the measures of domestic policy of which he is +accused. Otherwise, as purely domestic measures, they do not come under +the jurisdiction of this Tribunal according to the provisions of the +Charter. + +But there is no such evidence, and it is much rather to be assumed that +Frick, as a typical official connected with domestic politics, +considered his measures as absolutely independent acts which had nothing +whatsoever to do with the solutions by force of questions of foreign +policy. Nor can another view of the situation be derived from the +measures dealing directly with Germany’s rearmament, that is, the +reintroduction of general conscription and the occupation of the +demilitarized zone of the Rhineland. In his capacity as Reich Minister +of the Interior, Frick issued the orders of the civil administration for +the mobilization of men liable for military service, and consequently he +himself also signed the Armed Forces Law. + +Yet even these measures in themselves were not to be recognized as +preparation for a war of aggression. The reintroduction of compulsory +military service and the assumption of military sovereignty over the +demilitarized Western Zone were explained by Hitler himself, to his +collaborators and the world, by arguments whose soundness was then +widely accepted, and after the first shock many foreign statesmen still +believed in Hitler’s well-founded assurances of peace, and advocated the +opinion that there was no reason to fear any belligerent intentions on +the part of Hitler. + +To be sure, Hitler personally declared to his Commanders-in-Chief on 23 +November 1939 that he had created the Armed Forces in order to make war. +I refer to Document 789-PS; Exhibit Number USA-23. But Hitler previously +cleverly obscured this intention by another argument which at that time +still found credence in Germany and abroad, and—as proved by the +evidence—even those collaborators in his own Cabinet who had not been +initiated into his secret plans believed in it. + +Thus it is that several defendants refer to the fact that they approved +of the reconstruction of the German Armed Forces in the face of the +provisions of the Versailles Treaty, but that they did not want a war +and did not consider that by their collaboration they were participating +in the planning of a war of aggression. As for the Defendant Frick, the +view of the defense is that there is no proof that Hitler had informed +him of his plans for war, and therefore his collaboration in the +measures concerned with the reconstruction of the German Armed Forces +cannot be charged against him as intentional collaboration in the +planning of wars of aggression. A similar situation arises with regard +to the defendant’s activity in organizing the civil administration in +general for the eventuality of war, a task entrusted to the defendant as +Plenipotentiary for Administration of the Reich by the second Reich +Defense Law dated 4 September 1938. + +I beg to point out again that the position of Plenipotentiary for +Administration of the Reich was created only by this second Reich +Defense Law of 4 September 1938, and thus was not included in the first +Reich Defense Law of 21 May 1935. + +To be sure, long before, even before 1933, experts from the various +ministries held conferences dealing with the subject of Reich defense, +meeting at irregular intervals after 1933 as the Reich Defense +Committee, as shown in the documents submitted by the Prosecution. These +meetings had nothing to do with an agreement to wage a war of +aggression. They dealt with general questions of Reich defense, as is +customary also in other countries. By the Reich Defense Law of 21 May +1935, the organization for Reich defense was more closely co-ordinated, +particularly by the appointment of a Plenipotentiary for War Economy, +and at his interrogation the Defendant Schacht explained in detail that +the purpose in creating that position was not preparation for a war of +aggression (according to the duties and regulations to be found in the +first Reich Defense Law) but the organization of the economy for defense +in the event of a war of aggression by other states. + +The same holds true with regard to the position of Plenipotentiary for +Reich Administration as created by the second Reich Defense Law of 4 +September 1938, which was conferred on the Defendant Frick by virtue of +his position as Reich Minister of the Interior. This position signified +the co-ordinated establishment of the entire civil administration for +the purpose of Reich defense. Regardless of whether, according to +documents which have been submitted to the Tribunal, Hitler already +wanted war at the time when he authorized the second Reich Defense Law, +it is nevertheless relevant for the defense of the defendant whether +Frick at that time was able to recognize the aggressive intentions of +Hitler from the law itself and from his preliminary work thereon or from +other evidence or information which was communicated to him then. From +the law itself it cannot be discerned that Hitler’s intention was to use +it in the sphere of civil life as an instrument of preparation for a war +of aggression. + +The kind of tasks which were given to the Defendant Frick in his +capacity as Plenipotentiary for Reich Administration had to do merely +with the concentration of domestic administration of Germany in case of +a possible war or threat of war, and nothing else can be seen from +Document Number 3787-PS (Exhibit Number USA-782), which was submitted +subsequently. + +The law is so formulated that it always refers only to the defense of +the Reich in case of war. It speaks about the “state of defense” and +mentions the case of a “surprise threat to the Reich territory,” in the +event of which certain measures must be taken. Beyond this the law does +not vouchsafe any hint, which would be in keeping with Hitler’s +oft-repeated principle not to divulge any more of his plans than the +person concerned had to know for his own work—a principle which he +strictly adhered to even with his closest collaborators. In view of this +principle it should not be assumed, nor has it been at all proved, that +when the order for this law was given to the Ministry of the Interior +any other information was imparted than the necessity for taking +precautionary measures, by concentrating the full strength of the +domestic administration of the country, against a surprise threat to +Reich territory through a possible attack by other states. + +It is not necessary for me to state in detail that such a measure cannot +be considered as a premeditated preparation for a war of aggression when +it had been explained to the competent authorities of the domestic +administration that it was essential for the defense of the Reich +against the threatening attack by another state. Hitler knew very well +how to hoodwink all those who had no need to know about his secret +plans, yet nevertheless should understand the reasons for the armament +and the organization of the state ordered by him for the eventuality of +war. + +I will deal now very briefly with some further documents bearing on the +activity of the Defendant Frick as Plenipotentiary for Reich +Administration. Frick, in his speech of 7 March 1940, referred to this +position—Document Number 2608-PS, Exhibit Number USA-714—and stated +that the planned preparation of the administration for the possible +event of war had been already effected during peacetime by the +appointment of a Plenipotentiary for Reich Administration. This speech +therefore merely confirms that which is already revealed by the text of +the law. The same applies to Document 2986-PS, Exhibit Number USA-409, +an affidavit by the defendant to the same effect. Therefore, according +to this law, the position of the Plenipotentiary for Reich +Administration, combined with the appointment of a Plenipotentiary for +Economy and the post of Chief of the OKW, cannot be described as a +“triumvirate” holding governmental authority in Germany. Nothing has +ever become known either inside or outside Germany of a government by +such a triumvirate, and the witness Lammers has also referred to the +strictly subordinate tasks performed by these persons by means of +ordinances—tasks which had nothing to do with the preparation of a war +of aggression. + +Another field of the defendant’s activity is likewise appraised by the +Prosecution as participation in preparation for a war of aggression, +namely, Frick’s work for the Association for Maintaining Germanism +Abroad. I refer to Exhibit Number Frick-14 and Document Number 3258-PS, +the latter submitted as Exhibit Number GB-262. Both documents reveal +that Frick supported the said association as a union for the fostering +of German cultural relations abroad and promoted its cultural efforts. +It cannot, however, be gathered from the documents that Frick engaged in +any capacity whatsoever for the furtherance of the aims of a so-called +“Fifth Column” abroad. Another document from which the Prosecution +deduced the approval of the policy of aggressive war by Frick is the +affidavit of Messersmith, Document Number 2385-PS, Exhibit Number +USA-68. This affidavit has been characterized by several defendants as +inaccurate, and the Defendant Schacht in particular showed at his +examination that in essential points it cannot be correct at all. The +Prosecution was not able to produce the witness for cross-examination. I +object on behalf of Frick against any use of the affidavit, all the more +so since an additional clarifying interrogation of the witness through a +written questionnaire only led to the result that the witness, by using +general phrases, avoided giving concrete answers to the questions put to +him. The answers to the questionnaire show plainly enough that +Messersmith cannot make concrete statements at all and that in his +affidavit he obviously was considerably deceived himself as to the +extent of his memory. + +I do not believe that his affidavit, which has been refuted in essential +points, can be made use of for passing legal judgment. As to the +question whether the Defendant Frick participated in conscious +preparation for a war of aggression, the Prosecution further submitted +Document D-44, Exhibit Number USA-428. From this document it is seen +that the Reich Ministry of the Interior is supposed in the year 1933 to +have issued a directive that official publications were not to be drawn +up in a form which might enable people abroad to infer an infraction of +the Versailles Treaty from such publications. This document does not +reveal whether by these directives actual treaty violations were to be +masked or whether it was only a question of avoiding the appearance of +treaty violations. + +The same problem applies to Document 1850-PS, Exhibit Number USA-742. +This contains the minutes of a conference between the Leadership of the +SA and the Reich Defense Minister, who proposed to the SA in 1933 that +budgetary funds of the Reich should be set aside by the Reich Ministry +of the Interior for the military training of the SA. The document does +not throw any light upon the attitude of the Reich Ministry of the +Interior toward this proposal, and even if it had accepted it, this +again would have proved only that the Reich Ministry of the Interior +furthered the restoration of the Armed Forces, a fact which anyhow is +already proved. + +Thus, none of these documents furnishes proof that the Defendant Frick +recognized as preparation for a war of aggression the measures ordered +by Hitler as necessary for the defense of the Reich. + +It is true that during the war, in 1941, a few days before the outbreak +of the war with the Soviet Union, a conference took place between the +Defendant Rosenberg and representatives of various ministries concerning +measures in case of a possible occupation of parts of the Soviet Union. +This is shown in Document 1039-PS, Exhibit Number USA-146, Rosenberg’s +report concerning these discussions, in which it is stated that +negotiations took place with “Reich Minister Frick (State Secretary +Stuckart).” This parenthesis means that the Reich Ministry of the +Interior was represented in these negotiations by State Secretary +Stuckart, therefore that Frick did not personally participate in the +negotiations. As the negotiations took place only a few days before the +beginning of the war in the East, it is not proved by the document that +Frick himself was informed about the negotiation before the beginning of +the war which, as it is generally known, was afterward proclaimed by +Hitler as a necessary measure of defense against an imminent attack by +the Soviet Union. It has been made clear by abundant evidence in this +Trial how far Hitler kept his true aggressive intentions secret, and how +well he knew how to cover up the true aim of all his political measures +for years with thousands of convincing reasons to justify the individual +measures of his policy of aggression. + +There was a very small circle of collaborators whom Hitler informed +about his war plans, but this circle was not selected according to the +position of the person concerned in the Cabinet, or according to his +position in the Party hierarchy, but exclusively from the point of view +of whether it was necessary for the person concerned, with respect to +his own tasks in the field of preparations for the war, to know the +aggressive character of Hitler’s general policy or even his detailed +plans of aggression. Document 386-PS, Exhibit Number USA-25, shows how +systematically the principle of secrecy was kept, even as regards the +older members of the Party and the administrators of important +departments in the Reich Cabinet. Whoever, such as the Minister of the +Interior, had merely to carry out measures within the framework of +preparations for war which could well be similar to tasks of a purely +defensive character was, in accordance with Hitler’s principle, not +informed of the latter’s aggressive intentions. For this reason, the +presence of the Defendant Frick is not shown in even a single one of +these secret conferences in which Hitler informed a circle of selected +men about his plans for foreign policy and his war aims. In the Document +386-PS just mentioned, Hitler especially emphasized and gave reasons for +the exclusion of the Reich Cabinet as a body to which such plans should +be made known. + +In another record concerning a similar conference—Document L-79, +Exhibit Number USA-27—the additional principle is laid down that no one +should be told anything concerning the war plans who does not need to +know these plans for his actual work. + +Frick’s name is not only missing from the list of those present at +Hitler’s conferences on his policy of aggression which took place before +the war, but the same applies also to the numerous conferences +concerning Hitler’s further war aims and aggressive intentions which +were held during the war. The Defendant Frick was no more informed of +the later attacks or included in their preparation, as is shown by the +list of those present at Hitler’s lectures concerning his plans, which +have in part been submitted here. + +Frick, purely an expert in domestic administration who was not +considered competent for military questions and questions of foreign +policy, was deemed good enough to organize the civilian administration +for the eventuality of any possible war, but in Hitler’s opinion, his +foreign policy and military plans were none of Frick’s business. +However, the Prosecution asserts further that after the conquest of +foreign territories and their occupation, the Defendant Frick regulated +the administrative policy in those territories and that he is +responsible for it. The Prosecution considers this activity, of the +defendant, according to Article 6, Letter (a) of the Charter, as +“participation in the execution of wars of aggression.” According to the +submission of the Prosecution, Frick exercised an over-all control of +the occupied territories, especially in his capacity as chief of the +Central Office for the occupied territories. On the basis of the same +function, he is deemed to be responsible for all War Crimes and Crimes +against Humanity which were committed in the occupied and incorporated +territories before and during the war, up to his dismissal as Reich +Minister of the Interior on 20 August 1943. + +It is a question of legal interpretation whether the activity in the +administration of occupied territories, pursuant to Article 6, Letter +(a) of the Charter, is to be considered as the “execution of wars of +aggression,” or whether criminality comes into consideration only under +the point of view of crimes against the rules of war or against +humanity. In deciding this question it appears important to me that it +is not one of the tasks of an official of a civil administration to +examine, after the conclusion of military operations, whether it is a +case of legal or illegal occupation according to the standards of +international law. An obligation for such an examination would be an +exaggerated demand to make of the department of the civil administration +or the administrative chief, whose activity cannot be described as +illegal on the grounds that the territory administered by him had been +annexed a short or even long time ago in violation of the regulations of +international law. There is no obligation for such examination in the +practice of civil administration. The Charter moreover does not demand +such an interpretation because, when naturally construed, the military +operations themselves might be understood to constitute an execution of +wars of aggression, but not the later civil administration of conquered +territories. + +The punishment of crimes which occurred in the administration of the +occupied territories would not be made impossible through such an +interpretation. In any case these crimes are subject to punishment as +Crimes against Humanity or against the rules of war according to the +Charter. And now mention must be made of those territories in particular +for which the Defendant Frick bears a responsibility. + +First of all there are the territories which were incorporated in +accordance with constitutional law into the commonwealth of the German +Reich, which are therefore called “incorporated territories.” By their +constitutional incorporation these territories came under the +administration of the Reich, but only to that extent did they come under +the authority of the Reich Minister of the Interior, in that the +Defendant Frick bears the constitutional responsibility of a minister +for the internal administration of these territories up to 20 August +1943. In the East, this mainly concerned the territories of West +Prussia, Posen, and Danzig, in other words, the so-called returned +Eastern territories which belonged, until the Versailles Treaty, to the +commonwealth of the German Reich. In the East, the Memel district +received the same constitutional treatment; in the West, the +Eupen-Malmedy district; and in the Southeast, the Sudetenland. +Furthermore the country of Austria was incorporated into the +commonwealth of the German Reich. For all those territories Frick has a +share in the laws and administrative measures brought about by the +incorporation. He bears the usual responsibility of a Minister of the +Interior for the domestic administration of these territories up to the +time of his dismissal in August 1943. For the territory of Bohemia and +Moravia on the other hand there existed a special Protectorate +Government, which was described as autonomous in the decree concerning +the establishment of the Protectorate—Document 2119-PS—and was +therefore not controlled by the Reich Ministry of the Interior. In a +similar way, an administration not dependent on the Reich Ministry of +the Interior existed in the Polish territories, which were collectively +designated “Government General” and were put under the jurisdiction of a +“Governor General.” In contrast to the so-called “incorporated Eastern +territories,” the Reich Ministry of the Interior had no right to issue +orders or to handle administrative matters in the Government General, as +can be seen from Document 3079-PS which contains Hitler’s decree +concerning the administration of the occupied Polish territories. The +same appears from numerous other documents, among them Document +USSR-223, the Frank diary, in which he states that no Reich central +offices are authorized to intervene in the government of his territory. + +The same applied to all other occupied territories for which a special +administration was established under any legal form. These separate +administrations were not dependent on the corresponding departmental +ministries in the Reich, but were under the jurisdiction of the +administrative chief for the corresponding territories, who was himself +directly subordinate to Hitler. + +This applies to the occupied Soviet Russian territories, the entire +administration of which was under the jurisdiction of a Reich Minister +for the Occupied Eastern Territories. The same applies to Norway, where +a Reich Commissioner was appointed. In a similar way, a Reich +Commissioner was appointed for the Netherlands, who was also independent +of the Reich Ministry of the Interior and was directly subordinate to +Hitler. In Luxembourg, Alsace, and Lorraine, there were chiefs of civil +administrations who were also not dependent on the Reich Ministry of the +Interior, while in Belgium and northern France there was a military +administration of which the same was true. + +In the same way the administrative chiefs of the territories which were +occupied in the Southeast of Europe were completely independent of the +Reich Ministry of the Interior. For part of the occupied territories +there exists, in the decrees issued at the time concerning the creation +of a separate civil administration, a stipulation that the Reich +Minister of the Interior was designated the central agency, and from +this formulation the Prosecution has deduced a responsibility of the +Defendant Frick for the administration of all the territories, as is +Stated in the Indictment. + +The actual tasks of the central agency can be seen from the order +concerning the establishment of a central agency for Norway—Document +3082-PS, or Number 24 in the Frick document book. The witness Dr. +Lammers has given a further explanation of the tasks. At that time it +was the primary task of the central agency to put personnel at the +disposal of the chiefs of the civil administrations in the occupied +territories on request. Therefore, if a civil official was needed for +any district, the administration of the district concerned applied to +the central agency in the Reich Ministry of the Interior, which then put +some official from the Reich at the disposal of the chief of the civil +administration. The Reich Ministry of the Interior was especially fitted +for this, as it had at its disposal numerous officials of the domestic +administration in Germany. + +But the transfer of an official from his own department to another +office, which will alone give orders to that official from that moment +on, does not establish responsibility for the further activity of that +official in his new department, to whom the Reich Ministry of the +Interior could issue no orders whatsoever. To take as an example: If the +Minister of Justice transfers one of his officials to the Foreign +Minister, naturally only the Foreign Minister is responsible for the +further activity of this official. This activity of the central agency +therefore does not justify the assumption of responsibility by Frick for +the administration of the occupied territories. + +The requisitioning of officials for the occupied territories was +concentrated in the Reich Ministry of the Interior. That is, as the +examination of the witness Lammers indicated—and I quote from the +above-mentioned Document 3082-PS—“the unified co-operation adapted to +the needs of Norway, of the supreme Reich authorities with one another +and with the Reich Commissioner.” + +In like manner, the hearing of evidence for the Defendants Rosenberg, +Frank, and Seyss-Inquart, who functioned as chiefs of civil +administrations in the occupied territories, has on no occasion revealed +any co-operation of any kind with the Defendant Frick either in his +capacity of Reich Minister of the Interior or Director of the Central +Agency in this Ministry. + +Now, the Prosecution has referred to several documents in order to prove +that the Defendant Frick exercised extensive control over all occupied +territories. Actually, however, those documents do not reveal an +administrative activity of any greater extent than I have just stated. +Document 3304-PS gives proof of an administrative activity for the +incorporated Eastern Territories. This coincides with my statement that +the incorporated Eastern Territories, in their internal administration, +were subject to the Reich Ministry of the Interior by virtue of their +constitutional incorporation into the German Reich. The document, +however, bears no reference to the administration of the Occupied +Eastern Territories, that is, the Government General or to the occupied +Soviet Russian territories. + +The other document submitted, 1039-PS, Exhibit Number USA-146, proves +the transfer of administrative personnel from the department of the +Reich Ministry of the Interior to the Reich Minister for the Occupied +Eastern Territories, a typical task of the Central Agency which I have +already discussed. The Prosecution has submitted further documents which +reveal that the Reich Ministry of the Interior had a hand in the +bestowal of German citizenship. Even this does not, however, prove any +administrative authority of the Defendant Frick for the occupied +territories, but merely a typical activity of a Minister of the Interior +whose department is competent for the general regulations concerning +German citizenship, including cases where persons living outside the +Reich territory are involved. This activity of the Minister of the +Interior can also furnish no proof of an extensive administrative policy +and a general responsibility of the Defendant Frick for the +administration of the occupied territories. In particular, in the +occupied territories which were not incorporated into the Reich +territory, Frick had no authority or competence whatsoever as far as the +tasks of the Police were concerned. + +Hitler directly commissioned Himmler to carry out police work in the +occupied territories—see Document 1997-PS, Exhibit Number USA-319, +Hitler’s decree concerning police security measures for the Eastern +Territories, for which Himmler was directly responsible. The same is +revealed by Document 447-PS, Exhibit Number USA-315, a directive of the +OKW dated 13 March 1941, to the effect that the Reichsführer SS in the +Occupied Eastern Territories is charged with special duties in the +execution of which he will act independently and on his own +responsibility. The same applies to the police tasks in the other +occupied territories, which were assigned either to the Reichsführer SS +Himmler or to the SS and police leaders who took their orders only from +Himmler, although in many cases they were ostensibly assigned to the +civil administrative chief in question, such as for example the Governor +General in Poland (see excerpt from Frank’s diary in the Frick document +book under Number 25, also USSR-223). In no case, therefore, were police +tasks in the occupied territories under the Defendant Frick’s +jurisdiction. Consequently, the Defendant Frick bears no responsibility +for crimes against the laws of war and against humanity in the occupied +territories, since in these territories he could neither order crimes +nor prevent them. + +Concerning the territory of the German Reich I must now examine the +claim of the Prosecution as to the responsibility of the Defendant Frick +for all the police measures, including the Gestapo, as well as for the +establishment and administration of concentration camps. May I first +refer to the documents submitted by me in evidence, which reveal that +the Police, including the political police, was in 1933 still the +concern of the individual states within the Reich, such as Prussia, +Bavaria, _et cetera_. + +In Prussia, the Secret State Police (Gestapo) and the concentration +camps were established and administered by Göring in his capacity as +Prussian Minister of the Interior. The tasks of the political police +were then transferred by a Prussian law, dated 30 November 1933, to the +office of the Prussian Prime Minister, which was also administered by +Göring. So when the offices of the Reich and the Prussian Minister of +the Interior were merged, in the spring of 1934, Frick did not assume +the tasks of the political police which still remained incumbent upon +Göring in his capacity as Prime Minister. + +A similar regulation prevailed in the other states, where Himmler was +gradually given the duties of special deputy for the political police. +During this period, the Reich Minister of the Interior had only the +right of so-called “Reich supervision” over the states, which Frick made +use of for the enactment of general instructions and legal ordinances; +and this is the only point where Frick, as Minister of the Reich, could +exercise any influence on the affairs of the political police and +concentration camps. + +Frick made use of this possibility, in accordance with his basic +attitude as confirmed by the witness Gisevius, to prevent and repress +arbitrary actions by the political police as far as was in his power in +the circumstances then prevailing. He endeavored, by the enactment of +provisions of law and procedure, to restrict the arbitrary practices of +the political police in the states. + +I refer to Document 779-PS, submitted by me as Exhibit Number Frick-6. +This is a decree dated 12 April 1934, containing restrictive provisions +of this sort under a significant preamble—which I quote: “In order to +remedy abuses occurring in the infliction of protective custody.” This +is followed by directives to the governments of the states forbidding +the application of preventive custody in numerous cases where it had +previously been improperly ordered by the Gestapo. In this struggle of +Frick against arbitrary actions by the political police in the states, +the police had, it is true, ultimately come out better because they were +under the direction of Göring and Himmler, with whom the “bureaucrat” +Frick—as Hitler disdainfully called him—could not compare as regards +influence in the Party and State. For that reason the political police +in the states in practice frequently disregarded Frick’s ordinances. But +Frick did not stand by idly as long as there was reason to hope that +through his intervention the unrestrained practices of the political +police in the states could be directed into orderly and legally +regulated channels. I refer to Document 775-PS, Exhibit Number Frick-9, +a memorandum from Frick to Hitler which clearly and unequivocally calls +a spade a spade, mentioning legal insecurity, unrest, and embitterment, +and severely criticizing individual cases of misuse of the right to +order protective custody by the political police of the states. Here I +would insert that the same document also proves that in the struggle +over the churches, the defendant clearly took their side. This is also +proved by Exhibit Number Neurath-1. + +In his testimony the witness Gisevius refers to an additional memorandum +which he himself drew up for Frick as a further attempt to restrain +through severe criticism and by suggestions for legal control the +arbitrary practices of the political police in the states. All of these +attempts failed because Frick’s political influence was too +insignificant and he could not assert himself against Göring and +Himmler, and because at the time Frick himself could not yet see that +the practices of Göring and Himmler were essentially in harmony with +what Hitler actually wanted himself. Thus the documents submitted by the +Prosecution, taken in conjunction with the evidence offered by the +Defense, show that in the domain of the political police and in ordering +protective custody, Frick had a certain competency at a time when the +police was still a service administered by the individual states. This +evidence also shows that during that time Frick’s jurisdiction was very +limited and it further shows that Frick, acting within the bounds of his +competency, took action solely in order to intervene against the terror +and arbitrary actions of the Gestapo through general instructions and +through repeated complaints in individual cases, so that the conclusion +is not justified that Frick in any way actively participated in the +Gestapo’s measures of terror and violence. + +At a later period the legal situation changed. With Hitler’s decree of +17 June 1936—Document 2073-PS, Document Book Frick Number 35—police +tasks for the entire Reich were combined and uniformly transferred to +Himmler, whose department was formally made a part of the Ministry of +the Interior under the title “Reichsführer SS and Chief of the German +Police in the Reich Ministry of the Interior.” + +The question now is whether this new regulation conferred on Frick, in +his capacity as Reich Minister of the Interior, any authority of command +or any right to issue instructions which could be enforced with regard +to the political police, its offices and its functionaries. When +Himmler, in accordance with his own wish, which he could gratify because +of his influence on Hitler, was appointed Police Chief for the entire +Reich, there did not exist in Germany a police or security ministry, +properly speaking. + +This is the reason why the uniform direction of the police through +Himmler in person was formally attached to the Reich Ministry of the +Interior. But Himmler wanted to be more than a department chief in the +Ministry of the Interior. Therefore a position entirely novel in German +administrative law was created for him and his purposes. The entire +sphere of the police was separated from the rest of the activities of +the Ministry of the Interior and placed under Himmler’s special +jurisdiction under a newly created title of office which, as a +government office, contained the words “Reichsführer SS,” thereby making +it possible for Himmler to carry out political police tasks under a +title of office characterizing him as Reichsführer SS and in that +capacity giving him independence from any instructions issued by a +minister of state. + +In order to accentuate further the independence of his office within the +bureaucratic hierarchy as well, Himmler was given the additional right +from the very beginning to represent police matters before the Cabinet +independently and on his own responsibility, like any Reich minister; +this is also shown in the decree concerning his appointment, Document +2073-PS. This decree is a typical example of the overlapping of +competencies which Hitler favored to excess in his government system. +Himmler became part of the Ministry of the Interior and, as an official +of the Ministry of the Interior, was formally bound to abide by +instructions of the Minister. However, he was also an independent Chief +of Police with the right to represent before the Cabinet on his own +responsibility matters pertaining to the Police, thus excluding Frick in +that respect. In addition to that, his orders simultaneously carried the +authority of the Reichsführer SS, in which Frick had no authority at all +to interfere. + +In actual effect this involved arrangement also enhanced the tremendous +influence of Himmler on Hitler. In keeping with his convictions, and to +safeguard a well-ordered state apparatus, Frick repeatedly tried to +intervene through general instructions intended to restrain the +arbitrary acts of the political police. As late as 25 January 1938 he +tried through a decree to curtail the admissibility of protective +custody and he forbade it in a number of cases of improper application. +I refer to Document 1723-PS, Exhibit Number USA-206, an extract of which +under Number 36 appears in the Frick document book. He prohibited +protective custody in lieu of, or cumulative to, a legal penalty, +forbade its application by police authorities of the intermediate or +subordinate levels, and gave orders that the accused should be heard +before arrest. He decreed periodical examination of the reasons for the +continuance of confinement and on principle forbade the protective +custody of foreigners, whom the Police had authority only to expel from +the Reich in case of acts endangering the State. + +An obvious argument is that the Gestapo in practice disregarded all +these instructions of Frick and that Himmler and his subordinates +maintained an absolute reign of terror and violence. This is correct and +has been confirmed in detail by the witness Gisevius. But something else +appears of importance to me in the defense of Frick: To show that Frick +himself disapproved of such arbitrary acts and that he tried to do all +in his power to prevent them. Finally, however, Hitler forbade even +this. He informed him through Lammers—as confirmed by the latter as +witness—that he was not to concern himself with police matters, that +Himmler could manage that better by himself and that the Police was +doing well under Himmler. + +Thus Himmler finally got complete control of the Police, and he gave +outward expression to this by later dropping, with Hitler’s consent, +from his official title, the words “in the Reich Ministry of the +Interior,” simply referring to himself as “Reichsführer SS and Chief of +the German Police,” which is also shown in the testimony of the witness +Lammers. + +I believe that, in view of the circumstances, the problem of the +Defendant Frick’s criminal responsibility for the political police and +their arbitrary measures is not established by the fact that the entire +Police was formally incorporated in the Reich Ministry of the Interior +after the year 1936, since it has been proved! that Frick himself did +not participate in arbitrary acts, but on the contrary tried again and +again to intervene against such arbitrary practice with all the power he +possessed, which however was no match for the personality of Himmler and +his influence with Hitler. + +In order to insure fair judgment, I request that the actual situation as +to power of command and authority, and not the purely superficial +circumstances of a formal incorporation of the tasks involved in the +Reich Ministry of the Interior, be taken into account. + +I insert the following here: The Prosecution, during their presentation +on 3 July 1946, submitted Document D-181, Exhibit GB-528, and stated in +connection with that document that it proved that the political police +were not only formally incorporated in the Ministry of the Interior, but +that Frick was in fact responsible for the measures of the Police. +Actually the document shows only that Frick as Minister of the Interior +was officially contacted in the matter of the sterilization of those +suffering from so-called hereditary diseases. The document has nothing +to do with any measures of the Police, least of all with any measures of +the political police. Moreover there is no information in it regarding +Himmler’s position in the Ministry of the Interior. + +Now I will continue with my plea: In this connection, I must briefly +deal with the reference of the Prosecution to the fact that Hitler’s +decree concerning the appointment of Himmler as Chief of the German +Police—Document 2073-PS—had been countersigned by Frick himself. + +I believe that the relationship between Frick and Himmler, as well as +their divergent relations to Hitler, are sufficiently clear to justify +the conclusion that the appointment of Himmler simply amounted to an +agreement between Hitler and Himmler, to which Frick would have objected +in vain. We are confronted with the same problem which applies to so +many defendants, namely, that of the formal countersigning of an order +issued by Hitler, which was then signed as a matter of form by the head +of a department, although that department head had no influence on the +order and could not have prevented it, especially as it would have had +full constitutional effect as a Führer decree without the minister’s +additional signature. + +I now have to deal with several documents which the Prosecution consider +to have a bearing on actual activity by the Defendant Frick within the +sphere of tasks of the political police. I have already dealt with +Document 3304-PS, to which the Prosecution referred in this connection. +It concerns an ordinance on the assignment of a Higher Police Leader to +the Reichsstatthalter (Reich Governor) in the Eastern territories which +were incorporated into the commonwealth of the German Reich, and hence +deals with the administrative organization of the Reich Governor’s +office in a part of the Reich. This decree therefore falls within the +scope of the general competence of the Ministry of the Interior, and +accordingly does not furnish proof of any specific police activity. +Moreover, this decree has nothing to do with any arbitrary acts of the +Gestapo. + +On the same lines in the decree of 20 September 1936—Document +2245-PS—concerning the appointment of police experts in the Prussian +provincial administrations, which were also subordinate to the Reich +Ministry of the Interior as offices of the general internal Reich +administration, the assignment of a police expert to the office of +general administration in the province is a measure of internal Reich +administration. This measure, too, had no connection with arbitrary acts +of the Gestapo, and more particularly it does not prove that the +defendant issued any instructions to the Gestapo. + +The situation is no different with respect to the documents which have +been appraised by the Prosecution as demonstrating the participation of +the defendant in the establishment and administration of concentration +camps, or as a sign of approval of terror methods used by the Gestapo. +In their statement of 22 November 1945, the Prosecution referred to +Document 2533-PS as proof of the approval of these arrangements by the +Defendant Frick. I need not go further into the contents of the +document; it represents an article by the Defendant Frank in the journal +of the Academy of German Law, of which Frick has erroneously been called +the author by the Prosecution. + +A further document does not, in the opinion of the Defense, contain +sufficient evidentiary value to be utilized in giving legal judgment. I +have in mind Document 2513-PS, Exhibit Number 235, which contains an +excerpt from a speech which Frick allegedly made in the year 1927. But +the excerpt is taken from a provincial Social Democrat newspaper, a +small paper opposed to Frick, the reporter thus having no authentic copy +of the speech at his disposal—and we all know what mistakes and +misunderstandings are apt to be contained in such short reports, the +wording of which cannot be checked by the speaker himself. Thus this +document, according to which Frick is said to have stated that history +is written not only with the ballot, but with blood and iron, is not a +reliable source. + +The Prosecution refers to dealings concerning the expropriation of land +in order to extend the grounds of the Auschwitz Concentration Camp. The +general domestic administration is competent for expropriation matters, +and for this reason an official from the Ministry of the Interior was +called into negotiations, who stated, however—Page 2 of the English +translation of the document—that he was not authorized to dispose of +the freehold of the land. Thus one cannot from this document either +construe any political police activity on the part of the defendant, or +an approval of the concentration camp system. Finally, in this +connection the Prosecution states that the Defendant Frick personally +visited the Oranienburg and Dachau Concentration Camps. The defendant +does not deny the visit to Oranienburg in 1938, about which witness +Hoess testified. At that time, as witness Hoess himself testified, the +outward aspect of the camps was still generally that of a military +training area. In any case, an official visitor to a camp at that time +could not observe any indication of murder, ill-treatment, or similar +crimes, so that such a visit is not a decisive argument for knowledge of +crimes in the concentration camps. + +On the other hand, Frick never visited the Dachau Concentration Camp, +contrary to the testimony of the witness Blaha. I refer to the testimony +of Gillhuber in regard to this, who as the constant companion of Frick +must have known about such a visit if it had taken place. I take the +liberty of pointing out that the two other constant companions of Frick +were also named by me as witnesses, but in agreement with the +Prosecution were considered by the Tribunal as unnecessary on the +grounds that one of the companions would be sufficient as a witness. + +Before concluding this chapter, I still have to go into the matter of an +allusion made by the Prosecution which described Frick at one time as +the Chief of the Reich Security Main Office. I beg to refer to the +testimony of the witness Ohlendorf, who stated to the Court that the +Reich Security Main Office (RSHA) was a creation of Himmler, who +combined in this office his state police tasks and his functions as +Reichsführer SS, with which Frick had no connection of any kind, much +less any powers of command. The sole chief of this office was thus +Himmler himself. + +I must go further into the charges which are made against the Defendant +Frick with respect to the persecution of members of the Jewish race. +Frick did collaborate in legal measures, particularly the Nuremberg +Laws, and in administrative measures which he regarded as an expression +of a National Socialist racial policy. On the other hand there is no +proof that Frick himself shared in or knew of the measures of physical +extermination which, on Hitler’s direct orders, were carried out by +Himmler and his organizations and kept absolutely secret from those who +themselves had no part in these frightful events. Further, in his +capacity as Minister of the Interior, the defendant is also accused of +collaboration in the killing of the sick and insane. Hitler’s basic +order is contained in Document 630-PS, Exhibit Number USA-342. This +document shows that Hitler did not give an order for this to any +government office but to two separate individuals, namely, Bouhler and +Dr. Brandt, so that this was quite outside the ministries’ authority. +Moreover, contrary to all rules, Hitler did not sign this order himself +in an official capacity as Führer and Reich Chancellor, but used private +stationery with the heading “Adolf Hitler.” This shows, a fact that the +witness Lammers has confirmed, that Hitler did not give an order for +these measures to the Ministry of the Interior or some other government +office, but to two of his Party comrades, and the Party emblem is the +only sign on this stationery. On the other hand, the documents submitted +by the Prosecution prove that complaints were made which also reached +the Ministry of the Interior, but they do not prove that, in +contradiction to Document 630-PS, Frick personally was contacted on the +subject of measures for the killings, or that he could have prevented +them. + +After his dismissal as Minister of the Interior on 20 August 1943 Frick +was appointed Reich Protector of Bohemia and Moravia. Here he was given +a task which from the start was definitely limited in its competence. + +I refer to Document 3443-PS, which is also included as USSR-60 and under +Number 29 in the Frick document book, and to 1366-PS, submitted by me as +Exhibit Number Frick-5a. Furthermore, I refer to the testimony of the +witness Lammers. The office of the Reich Protector was originally the +unified representation of Reich authority in the Protectorate. In actual +practice, however, its authority passed more and more to Frank, the +Reich Protector’s State Secretary at that time. + +With the appointment of Frick in August 1943 through a Führer decree +which was not made public, the executive authority was now formally +transferred to Frank, who from that date received the official title of +“The German Minister of State in Bohemia and Moravia.” From that time on +the Reich Protector retained essentially the right of representation and +the right of pardon, improper use of which by Frick has been neither +maintained nor proved by the Prosecution. On the other hand Frank, as +“German Minister of State” according to the above-mentioned Führer +decree, derived his executive authority directly from Hitler by whom he +had been directly appointed, and from whom he received his instructions +without Frick’s interpolation, Frick being in no way competent to +exercise any influence thereon. Considering this state of affairs, the +Defendant Frick cannot be incriminated by Document 3589-PS, Exhibit +Number USA-720. + +I now come to the Prosecution’s charge that Frick, by his membership in +certain organizations, is responsible for certain criminal actions. The +SS was one of these organizations mentioned by the Prosecution, to +which, however, Frick never belonged. Thus he was never a general in the +SS, as stated by the Prosecution. I would assume this to be merely an +error on the part of the Prosecution. In any case, the Prosecution did +not submit any form of proof. Frick was likewise never a member of the +SA, as shown—probably by mistake—in the chart indicating the +defendants’ membership in various organizations. For this too, there is +no proof. + +The Prosecution has further charged Frick with being the supreme head of +the Gestapo, and therefore designated him as a member of this +organization, with the argument that since the appointment of Himmler in +1936 as Chief of the German Police the Gestapo has been formally +incorporated into the Reich Ministry of the Interior. But the Gestapo +had its own chief in the person of Himmler, from whom alone it took +orders, and Himmler’s formal subordination to the Minister of the +Interior does not make the latter a member of that organization, which +was exclusively under Himmler’s orders. + +The Defendant Frick is further charged, in his capacity as Reichsleiter, +with membership in the Political Leadership Corps. My colleague, charged +with the defense of this organization, will in his turn deal with the +character of this organization. As to the Defendant Frick, I have only +to point out that he held the formal position of a Reichsleiter in his +role as chairman of the Reichstag faction of the NSDAP. The Reichstag +itself having lost all political importance after 1933, which requires +no further explanation, this position of Frick’s was in practice equally +unimportant and could not be compared with the position of a +Reichsleiter who administered important political departments. + +Finally Frick, as Reich Minister, was a member of the Reich Cabinet. +With regard to the character and the authority of this organization I +also refer first of all to the statements, which are yet to follow, of +my colleague who has been appointed defense counsel for this +organization. + +I refer here only to the testimony of Lammers and Gisevius, and further +to the excerpt from the book of this latter witness, which I have +submitted as Exhibit Number Frick-13 as evidence of the position and +authority which the Reich Cabinet had with respect to the dictatorial +practices of Hitler. From all this, the Defendant Frick appears as a +person who certainly took action politically to bring Hitler to power, +and who temporarily exercised a decisive influence on internal policy +after his goal had been achieved. All his measures, however, had inner +political aims; they were not intended to have anything to do with the +foreign political aims of a war of aggression, much less with Crimes +against Peace or against the rules of warfare—and, as also specified by +Article 6 of the Charter, only in such cases would this Court have +jurisdiction, as stated by the Prosecution itself. + +When Frick realized later that the policy was taking a course of which +he could no longer approve, he tried to exert all his influence to bring +about a change. But he had perforce to find out more and more clearly +that Hitler would not listen to his remonstrances and complaints. On the +contrary, he was forced to realize that these complaints destroyed +Hitler’s confidence in him, and that he preferred to be advised by +Himmler and similarly minded persons, so that finally, after the year +1937, Frick was no longer received by Hitler when he wanted to present +complaints. Frick then gave up such hopeless attempts to bring about a +change in the situation. Things would not have been altered by his +resignation either, which the evidence has shown he repeatedly tendered +in vain. Thus his tragedy lies in his entanglement in a system, in the +first steps of which he had participated enthusiastically and the +development of which he had imagined would be quite different. In any +case, it appears important to me, in judging his personality and his +actions, that even this presentation of evidence, which has gone on for +months, has not given any proof of the personal participation of the +defendant in any crime. + +It is not without reason that John Gunther in his book _Inside Europe_, +which I have presented to the Tribunal as evidence, describes precisely +the Defendant Frick as “the only honest Nazi.” At the same place Gunther +goes on to call him a “bureaucrat through and through.” Hitler himself +kept calling him the “pen pusher” (“Paragraphenschuster”) because +Frick—which was typical of him—did not become acquainted with him at +some public meeting, but in his office in the police department in +Munich in the year 1923. + +This man felt enthusiasm for Hitler’s suggestive power, so lacking in +himself, a Hitler who with big words appealed to his heart, his honor, +and his patriotism. It was Hitler who made him proud of being able to +participate in the reconstruction of a German nation which, through +powerful armed forces, was to be in a position to play a peaceful yet +active role in world politics. + +And it was again Hitler who knew how to make his program appear to the +bourgeois official Frick as the only way to forestall Bolshevik rule in +Germany—this and many more superficial truths, twisted statements, and +devices of propaganda which fooled so many people who fell for the +suggestive power of Hitler, not realizing in time that they had +subordinated themselves to the hypnotic will of a criminal, who was +prepared to overthrow the pillars of civilization for his aims and who +finally would leave Germany a monstrous spiritual and material field of +rubble, for the removal of which I pray that this Trial may also +contribute through a sentence in accordance with law and justice. + +THE PRESIDENT: Dr. Marx. + +DR. HANNS MARX (Counsel for Defendant Streicher): Gentlemen of the +Tribunal, Mr. President. + +I begin the speech for the defense of Julius Streicher. + +When in May of the past year the final battles of the greatest and most +horrible war of all time came to an end, the Germans were slow to rise +again from the stupor in which they had, for the most part, spent the +last months of the war. Like all the peoples of Europe they had suffered +unspeakably for years. The last months in particular, with their hail of +bombs, had brought so much misery to both the country and the people +that it almost surpassed human endurance. This terror was increased by +the knowledge that the war was lost, and by the fear of the uncertain +fate which the occupation period would bring. And when finally the +period of first anxiety had passed, when the German people were slowly +beginning to breathe again, paralyzing horror spread once more. + +Through the press and radio, through newspapers and motion pictures, +knowledge was spread of the atrocities which had taken place in the +East, on the steppes and in the concentration camps. Germany learned +that people, men of its own blood, had slaughtered millions upon +millions of innocent Jewish people. Most people felt instinctively that +these deeds would necessarily be the greatest of all the accusations the +world had to level against Germany. + +The question of whether the German people in its totality had known and +approved of these actions was, and is, the truly fateful question. It is +the touchstone by which the decision must be made as to whether or not +Germany will ever be able to return again as a nation with equal rights +into the common cultural and spiritual sphere of the world. As in every +case of guilt, there immediately arose here also the question as to who +was responsible, and the search for that individual. Who had ordered +these atrocities, who had carried them out, and how could such +inconceivable things have happened at all, the like of which cannot be +found in history even in the earliest days? + +During all this asking and guessing, the news arrived that the former +Gauleiter of Franconia and publisher of Der Stürmer, the present +Defendant Julius Streicher, had fallen into the hands of the American +troops. From the echo this news aroused in the press, which was +exclusively directed and published by the occupying power, as well as in +the radio news, it was to be gathered that the world was of the opinion +that in the person of Julius Streicher not only had one of the numerous +anti-Semitic propaganda agents of the Third Reich been taken prisoner, +but in short Enemy Number One of the Jews. + +Throughout the rest of the world the opinion evidently prevailed that in +the person of Julius Streicher not only the most active propaganda agent +for the persecution and extermination of the Jews had been seized, but +that he had also participated to the highest degree in carrying out +these acts of extermination. He was said to have been, as one heard, not +only the greatest hater of the Jews and the greatest preacher of +extermination of the Jews, but also the person to whose direct influence +one could trace back the extermination of European Jewry. + +It is only from this angle that it can be explained why the Defendant +Streicher should sit here in the dock, together with the other +defendants, among those chiefly responsible for the National Socialist +system. For neither by virtue of his personality nor measured by his +offices and positions does he belong to the circle of leaders of the +NSDAP or to the Party’s decisive personalities. This view was probably +also held in the beginning by the Prosecution, but was abandoned by them +at an early stage, for the written Indictment already no longer charged +the Defendant Streicher with any personal and direct part in the +abominable mass murders. Rather did it state that there was less guilt +with which he would be charged than in the case of any of the other +defendants; only his propaganda, his activities by the written and +spoken word, were made the subject of the accusation against him. + +As far as particulars are concerned, the Counts of the Indictment +against the Defendant Streicher were summed up as follows: + +I. Support of seizure of power and consolidation of power of the NSDAP +after the latter’s entry into the Government. + +II. Preparation of aggressive wars by propaganda aimed at the +persecution of the Jews. + +III. Intellectual and spiritual preparation and education to encourage +hatred against the Jews, + +(a) in the German people, + +(b) in the German youth, and + +(c) in the active extermination of Jewry. + +Without Julius Streicher, no Auschwitz, no Mauthausen, no Maidanek, no +Lublin—thus the Indictment may be summed up briefly. + +As far as Count One of the Indictment is concerned, the defendant does +not deny that as regards the Party’s later seizure of power he supported +and promoted it with all his might from its earliest inception. His +support went to the extent of placing a whole movement which he had +built up personally in Franconia at the disposal of Adolf Hitler’s Party +which was small after the first World War, as one can imagine, and +limited to southern Bavaria only. Furthermore, after Hitler’s release +from the fortress of Landsberg, he immediately joined him again and +subsequently championed his ideas and goals with the greatest +determination. + +THE PRESIDENT: I think this is a good time to break off. The Tribunal +will adjourn. + + [_The Tribunal adjourned until 12 July 1946 at 1000 hours._] + + NOTES + +----- + +[1] Proceeding from this interpretation of the Charter there arises the +need for a discussion on how the Indictment is to be construed with +respect to the conspiracy charged therein. This construction is based on +the legal concept of Anglo-American law which determines the +responsibility of a plurality of persons differently and in a more +far-reaching way than the German penal code, which contains the +principles of law to which the accused were subject at the time when +they committed the deed. The German penal code also provides that a +person can be held responsible for offenses committed by others provided +he participated in a common plan which was later carried out by others. +But the German penal code places decisive weight on determining the +extent to which the acts committed at a latter date correspond to the +common plan. Since in the serious crimes which are being prosecuted +before this Court the determination of the form of guilt in the original +plan is necessary in order to permit punishment, later acts of +commission by others can be charged against a defendant only to the +extent to which they corresponded to arrangements to which the defendant +deliberately agreed. A defendant who participated in certain plans +cannot be held responsible for subsequent plans of a wider scope, or for +acts of commission which far exceeded the original plans without his +co-operation. + +Responsibility for subsequent plans and acts of commission can be +established according to German law only if it can be proved that the +defendant, without participating in those subsequent plans and actions, +at the time of his original participation recognized and approved this +manner of development and execution and, in other words, deliberately +encouraged it. + +To revert to the example of the Prosecution: + +He who participates’ in the plan for robbing a bank is responsible if +this plan is carried out, even though he does not personally participate +in the execution. But a person does not at the same time become guilty +of premeditated murder if the active members subsequently and without +his participation discuss murdering the guard or in case one of the +members should shoot one of the guards without prior agreement, because +the latter has caught him in the act. + +Nobody can be convicted of premeditated murder if he did not participate +in a plan to commit murder, unless it can be proved that when he +participated in the plan for robbing the bank such killing of a guard +was already contemplated and that in spite of this he approved the plan +for the bank robbery. In that case he, too, would have deliberately +contributed to the murder. In other words, according to the provisions +of German substantive criminal law there does not exist a liability for +so-called excesses of the immediate culprits or for an unforeseen +development of plans not originally conceived on such a wide scope, so +that a more far-reaching interpretation in line with the concept of +conspiracy in Anglo-American law, which at the time when the accused +committed their deed did not exist, would violate the principle which +prohibits retroactive application of penal laws. + + + + + ONE HUNDRED + AND SEVENTY-SEVENTH DAY + Friday, 12 July 1946 + + + _Morning Session_ + +THE PRESIDENT: The Tribunal will adjourn today at 4 o’clock. + +DR. MARX: Mr. President, with the permission of the Tribunal I shall now +continue with the presentation of the final plea for the Defendant +Streicher. Yesterday I had come to the point where the individual +accusations against Streicher had been summarized, and I had taken +liberty of explaining that these accusations are subdivided into three +different paragraphs: + +1. Support of seizure of power and consolidation of the power of the +NSDAP after its entry into the Government. + +2. Preparation of aggressive wars by propaganda aimed at the persecution +of the Jews. + +3. Intellectual and spiritual preparation and education of the German +people and German youth to effect the destruction of Jewry and to +encourage hatred of the Jews. + +With respect to Count One of the Indictment, the defendant does not deny +that, with regard to the Party’s later seizure of power, he supported +and promoted it with all his might from the very beginning. His support +went to the extent of a whole movement which he had built up personally +in Franconia and which he put at the disposal of Adolf Hitler’s Party, +which was quite small after the first World War and limited to Southern +Bavaria only. Furthermore, after Hitler’s release from the fortress of +Landsberg he immediately joined him again and subsequently championed +his ideas and aims with the greatest determination. + +Until 1933 the defendant’s activity was limited to propaganda for the +NSDAP and its aims, particularly in the field of the Jewish question. +Nothing criminal can be seen in this attitude of the defendant as such. +Participation in a party within a state which allows such an opposition +party can be regarded as criminal only if, first of all, the aims of +such a party are objectively criminal and if, subjectively, a member of +such a movement knows, approves of, and thereby supports, these criminal +aims. + +The foundation of the entire charges against all the defendants lies in +this very fact that the NSDAP is accused of having had criminal aims +from the very beginning. According to the assertion of the Prosecution, +the members of this Party started out with the plan of subjugating the +world, of annihilating foreign races, and of setting the German master +race above the whole world. They are accused of having harbored the will +to carry out these aims and plans from the very outset by means of +aggressive wars, murder, and violence. If, therefore, the Defendant +Streicher’s mere participation in the NSDAP and his support of it are to +be ascribed to him as a crime, it must be proved that the Party had such +plans and that the defendant knew and approved of them. + +The gentlemen who spoke before me have already demonstrated sufficiently +that a conspiracy with such aims did not exist. Therefore I can save +myself the trouble of making further statements on this subject and I +can refer to what has already been set forth by the other defense +counsel. I have only to deal with the point that the Defendant Streicher +did not in any case participate in such a conspiracy, if the latter +should be considered by the High Tribunal to have existed. + +The official Party Program strove to attain power in a legitimate way. +The aims advocated therein cannot be considered as criminal. Thus, if +such aims did actually exist, they could only—by the very nature of a +conspiracy—be known in a restricted circle. + +The Party Program was not kept secret but was announced at a public +meeting in Munich, so that not only the whole public of Germany but also +that of the entire world could be informed about the aims of the Party. +Therefore that element supplied by secret agreement towards a common +aim, which is usually the characteristic sign of a conspiracy, is not +present. + +The evidence too, has shown nothing to the effect that already at that +time there existed a plan for a war of revenge or aggression connected +with the previous or simultaneous extermination of the Jews. If, +nevertheless, a conspiracy should have existed, the latter would have +confined itself to the restricted circle which revolved exclusively +around Hitler. But the Defendant Streicher did not belong to that +circle. None of the offices he occupied provides the least proof of +that. As an old Party member he was just one among many thousands. As +honorary Gauleiter, as honorary SA Obergruppenführer, he was also only +an equal among equals. Thus one cannot find in any of the offices he +held any connection or complicity with the innermost circle of the +Party. It is also impossible to discern after the end of 1938 any +personal relations with the leading men of the Movement, either with +Hitler himself or with the Defendant Göring, or with Goebbels, Himmler, +or Bormann. + +The Prosecution did not offer any evidence on this point, nor did the +proceedings produce any proof to that effect. Of all the material +presented during all these months of the Trial, nothing can be taken as +even a shadow of proof that the Defendant Streicher was so closely +connected with the supreme authority of the Party that he could have, or +even must have, known its ultimate aims. + +In the Jewish question too the final aims of the Party—the effects of +which were manifest in the concentration camps—were not, before the +seizure of power and for several years after, formulated and determined +as they appeared in the end. The Party Program itself provided for Jews +to be placed under aliens’ law, and so the laws issued in the Third +Reich followed this line. Only later on, it may be added, the program in +this as in many other points became more radical and finally went +haywire altogether under the influence of the war. But any proof that +the Defendant Streicher knew other aims than those of the official Party +Program has not been offered. Consequently it has not been proved that +the defendant supported the seizure of power of the Party in cognizance +of its criminal aims; and only on such a basis could a penal charge be +brought against him. + +The fact that the defendant, as Gauleiter, further endeavored to +increase and maintain the power of the Party after the seizure of power +is not disputed by him. But here, too, the defendant’s conduct can only +be considered punishable if he knew at that time the objectionable aims +of the Party. As a matter of actual fact it must be said here that the +Defendant Streicher, in contrast to almost all the other defendants, did +not remain in his position until the end, not even until the war. +Officially he was dismissed in 1940 from his position of Gauleiter, but +actually and practically he had been without any influence and power for +more than a year before that time. But as long as he could still work +within the modest framework of his capacity of Gauleiter, no criminal +plans of the NSDAP were recognizable. In any case not for anybody who, +like the Defendant Streicher, was outside the close circle surrounding +Adolf Hitler. + +Count Two of the Indictment brought against the Defendant Streicher, +namely, the persecution of Jews as a means of preparation for a war of +aggression, can be included here. Up to 1937 the existence of a plan for +a war of aggression was in no way recognizable. In any case, if Hitler +had had any intentions in that direction, he did not allow them to be +recognized from the outside. If, however, anybody had been taken into +his confidence at that time, it would have been the leading men in +politics and the Armed Forces, who belonged to the closest circle around +him. To those, however, the Defendant Streicher by no means belonged. It +is especially significant here that at the outbreak of the war Streicher +was not even appointed Wehrkreiskommissar (Commissioner of Military +Administrative Headquarters) of his Gau. The individual conferences from +which the Prosecution derives the evidence for the planning of the war +which broke out later in no case ever saw the Defendant Streicher as +participant. His name does not appear anywhere, neither in any written +decree, nor in any minutes. Consequently no proof has been offered that +Streicher knew of such alleged plans for waging war. This does away with +the accusation that he preached hatred against the Jews in order to +facilitate thereby the conduct of the war planned for some later time. + +In this connection I should add that one of the main points in the +program of the NSDAP was the slogan, “Get rid of Versailles!” The +defendant adopted this point of the program which, however, does not +mean he envisaged a repeal of the treaty by means of war. + +Even the former democratic German governments, in the course of their +negotiations with their former opponents in the World War, stressed the +fact at all times that the Versailles Treaty presented no proper basis +for permanent world peace and particularly for economic adjustment. Not +only in Germany but everywhere in the rest of the world clear-thinking +economic circles were against the Versailles Treaty. We may point +especially to the United States of America as an example of this. + +Almost all political parties in Germany, irrespective of their other +aims, agreed that the Treaty of Versailles should be revised. Neither +was there any difference of opinion over the fact that such revision was +possible only on the basis of an agreement. Even to consider any other +possibility of solution would have seemed Utopian, for the German Reich +lacked all military power. The NSDAP also strove, at any rate as far as +could be seen from outward signs, to find a solution to the problem in +this way. To support such an aim, however, cannot be looked upon as a +violation of treaty obligations and, therefore, cannot be made the +object of a charge against the defendant. No proof has been offered that +he thought of warlike complications or that he desired them. + +I now come to the matter of the defendant’s attitude in the Jewish +question. He is accused of having incited and instigated for decades the +persecution of the Jews and of being responsible for the final +extermination of Europe’s Jewry. It is clear that this accusation +constitutes the decisive point of the Indictment against Julius +Streicher and perhaps the decisive point of the total Indictment, for in +this connection the attitude of the German people to this question must +be tried and judged as well. The Prosecution takes the point of view +that there is just as little doubt as to the responsibility of the +defendant as there is doubt about the guilt in which the German people +are involved. As evidence of this the Prosecution put forward: + +(a) The speeches by Streicher before and after the seizure of power, +particularly one speech in April 1925, in which, he spoke about the +extermination of the Jews. Herein, in the prosecutor’s opinion, is the +first evidence to be seen regarding the final solution of the Jewish +question planned by the Party, namely, the extermination of all Jews. + +(b) Active assertion of the person and authority of the defendant, +especially on “Boycott Day,” 1 April 1933. + +(c) Numerous articles published in the weekly paper, _Der Stürmer_, +among them especially those dealing with ritual murder and with +quotations from the Talmud. He is said to have knowingly and +intentionally described therein the Jews as a criminal and inferior race +and created and wished to create hatred of these people and the wish to +exterminate them. The defendant’s reply to these points is as follows: + +He states that he worked merely as a private writer. His aim was to +enlighten the German people on the Jewish question as he saw it. His +description of the Jews was merely intended to show them as a different +and a foreign race and to make it clear that they live according to laws +which are alien to the German conception. It was far from his intention +to incite or inflame his circle of listeners and readers. Moreover, he +always only propagated the idea that the Jews, because of their alien +character, should be removed from German national and economic life and +withdrawn from the close association with the body of the German people. + +Further, he always had in mind an international solution of the Jewish +question; he did not favor a German or even European partial solution +and rejected it. That was why he suggested, in an editorial in _Der +Stürmer_ in the year 1941, that the French island of Madagascar should +be considered as a place of settlement for the Jews. Consequently, he +did not see the final solution of the Jewish question in the physical +extermination of the Jews but in their resettlement. + +It cannot be the aim of the Defense to go into further details of the +defendant’s actions as a writer and speaker, particularly with regard to +_Der Stürmer_ and his reply to the accusations raised against him. His +ideology and convictions shall not be explained, excused, or defended, +nor his manner of writing and speaking either. Examination and judgment +in this respect rest with the Tribunal alone. This much only shall be +said, that between the defendant’s actions and the expressions +frequently employed by him there is an antithesis which cannot be +bridged. It may be stated that the defendant never, when in charge of an +anti-Jewish undertaking, had coercive measures used against the Jewish +population, as might necessarily be expected of him if the accusations +made by the Prosecution were true. + +I consider it my duty as defense counsel to broach and examine the +question as to whether the Defendant Streicher with his speeches, his +actions and his publications, not only strove towards the result alleged +by the Prosecution but actually attained it. The question therefore +should be examined as to whether Streicher actually educated the German +people to a degree of anti-Semitism which made it possible for the +leadership of the German nation to commit such criminal acts as actually +occurred. Furthermore, it must be examined whether the defendant filled +German youth with hatred against the Jews to the extent that is charged +by the Prosecution. Finally, the question must be examined whether +Streicher actually was the man who spiritually and morally prepared the +executive organs for their active persecution of the Jews. + +At the beginning of this exposition it appears important to point out +that a great many of _Der Stürmer_ articles, from which the Prosecution +endeavors to deduce an incitement to stamp out and annihilate the Jews, +were not written by Streicher himself, but by his collaborators, +especially by the Deputy Gauleiter, Karl Holz, who was well known for +extremely radical tendencies. Even though the Defendant Streicher bears +formal responsibility for these articles, which responsibility he +expressly assumed before the Tribunal, this aspect nevertheless appears +very important for the extent of his criminal responsibility. + +Further it may be said in this connection that, according to the +unrefuted statement of the defendant, the most caustic articles were +written in reply to articles and writings in the foreign press, which +contained very radical suggestions for the destruction of the German +nation—also, no doubt, due to the existing war psychosis. + +The Defendant Streicher—and this cannot be denied and shall not be +defended—continually wrote articles in _Der Stürmer_ and also made +speeches in public which were strongly anti-Jewish and at least aimed at +the elimination of Jewish influence in Germany. During the first years +Streicher found a comparatively favorable soil for his anti-Jewish +tendencies. The first World War ended with Germany’s defeat, but wide +circles did not wish to admit the fact of a military victory of +Germany’s opponents of that time. They attributed this defeat +exclusively to a breakdown of national defense and resistance from +within and depicted Jewry as being the main culprit for this inner +undermining. In doing this they intentionally overlooked the mistakes +which had been committed by the Government of that time before and +during the war with respect to domestic and foreign policy, as well as +the errors of strategy. A scapegoat was sought on which to lay the blame +for the loss of the war, and it was thought to have been found in the +Jews. Jealousy, envy, and also disregard of personal shortcomings +accomplished the rest in influencing feelings unfavorably toward the +Jewish population. In addition to that came the inflation and in the +following years the economic depression with its steadily increasing +misery which, as experience shows, makes any nation ripe for any form of +radicalism. + +On this ground and in this setting _Der Stürmer_ developed. For these +reasons it first met with a certain amount of interest and attracted a +considerable number of readers. But even in the last years before the +seizure of power it did not have great influence; its distribution +hardly went beyond Nuremberg and its close vicinity. By means of attacks +on persons known locally in Nuremberg and in other places, it managed to +arouse in these localities, from time to time, a certain amount of +interest and thereby to extend its circle of readers. Certain parts of +the population were interested in the propagation of such scandal and +for that reason subscribed to _Der Stürmer_. + +But criminal action can only be seen here—and this is presumably the +opinion of the Prosecution also—if this type of literary and oral +activity led to criminal results. Now, was the German nation really +filled with hatred for the Jews by _Der Stürmer_ and by Streicher’s +speeches in the sense and to the extent asserted by the Prosecution? + +The Prosecution submitted the evidence on this point in a very brief +manner. It draws conclusions, but it has not produced actual proof. It +alleges the existence of results, but cannot produce evidence for that +assumption. The prosecutor has maintained that without Streicher’s +incitements over a number of years the German people would not have +sanctioned the persecution of the Jews and that Himmler would not have +found among the German people anyone to carry out the measures for the +extermination of the Jews. If, however, the Defendant Streicher is to be +made legally responsible for this, then not only must it be proved that +the incitement as such was actually carried through and results achieved +in this direction; but—and this is the decisive point—conclusive proof +must be produced that the deeds which were done can be traced back to +that incitement. It is not the question of the result obtained which +must primarily and irrefutably be proved but the causative connection +between incitement and result. Now, how is the influence of _Der +Stürmer_ upon the German people to be estimated, and what picture +unfolds in the handling of the Jewish problem during the years between +1920 and 1944? + +It is easy to recognize here three stages of development. The first +period comprises the time of the defendant’s activity between 1922 and +1933; the second that between 1933 and 1 September 1939, or February +1940; the third, the time from 1940 to the collapse. + +With regard to the first period, it would show a considerable lack of +appreciation of the tendencies which had already existed in Germany for +a long time and thereby a completely groundless exaggeration of +Streicher’s influence, if no mention were made of the fact that long +before Streicher there was already a certain amount of anti-Semitism in +Germany. For instance a certain Theodor Fritsch had touched on the +Jewish question in his journal _Der Hammer_ long before Streicher’s +time, referring especially to the alleged menace offered by the +immigration of Jewish elements from the East, which might overflow the +country and acquire too much control in it. + +Immediately after the end of the first World War the so-called “German +National Protective and Defensive League” (Deutsch-Völkischer Schutz- +und Trutzbund) appeared on the scene, which in contrast to _Der Stürmer_ +and the Movement brought into being by Streicher, extended over the +whole of Germany, setting as its aim the repression of Jewish influence. +Anti-Semitic groups existed in the South as well as in the North long +before Streicher. In comparison with these large-scale efforts, _Der +Stürmer_ could only have a regional importance. This alone explains why +its influence was never at any time or in any place of great importance. + +It is a decisive fact, however, that the German nation in its totality +did not let itself be influenced by all these groups either in its +business relations or in its attitude towards Jewry and that even during +the last years before the NSDAP came to power no violent actions against +the Jews were committed anywhere by the people. However, when towards +the end of the second decade after the first World War a considerable +increase of the NSDAP became noticeable, this was not due to +anti-Semitic reasons but to the fact that the prevailing confusion in +the various parties had been unable to point to a way out of the +ever-increasing economic misery. The call for a strong man became ever +more urgent. The conviction became more and more firmly rooted among the +broad masses that only a personality who was not dependent on the change +of majorities would be able to master the situation. + +The NSDAP knew how to exploit this general trend for its own ends and to +win over the nation, sunk in despair, by making promises in all +directions. But never did the masses think, when electing the NSDAP at +that time, that its program would produce developments as we have +witnessed. + +With the seizure of power by the NSDAP in 1933, the second epoch was +introduced. The power of the State was exclusively in the hands of the +Party and nobody could have prevented the use of violence against the +Jewish population. Now would have been just the right moment for the +Defendant Streicher to put into effect the baiting the Prosecution has +alleged. If by that time wide circles of the population, or at least the +veteran members of the NSDAP, had been trained to be radical Jew haters, +as stated by the Prosecution, acts of violence against the Jewish +population would necessarily have taken place on a greater scale due to +that feeling of hatred. Pogroms on the largest scale would have been the +natural result of a truly anti-Semitic attitude of the people. But +nothing like that happened. Apart from some minor incidents, evidently +caused by local or personal conditions, no attacks on Jews or their +property took place anywhere. It is quite clear that a feeling of hatred +for the Jewish people did not prevail anywhere at least up to 1933, and +the charge brought by the Prosecution against the defendant that ever +since the very outset of his fight he successfully educated the German +people to hate the Jews can thus be dropped. + +The year of the seizure of power by the NSDAP also put _Der Stürmer_ to +a decisive test. Had _Der Stürmer_ been considered by the broad masses +of the German people as the authoritative champion against the Jews and +therefore indispensable for that fight, an unusually large increase in +the circulation would have followed. No such interest was, however, +shown. On the contrary, even in Party circles demands were made that +_Der Stürmer_ should be discontinued entirely; or at least that its +illustrations, style, and tone should be altered. It became more and +more clear that the already small interest in Streicher’s Jewish policy +was steadily declining. It must be added that with the seizure of power +by the Party the total press apparatus came under the control of the +Party, which immediately undertook to co-ordinate the press, that is, to +direct it from a central office in the spirit of the National Socialist +policy and ideology. This was done through the Minister of Propaganda +and the Reich Press Chief via the official “National Socialist +Correspondence.” Particularly Dr. Goebbels, the Minister of Propaganda, +described by various witnesses such as Göring, Schirach, Neurath, and +others as the most bitter advocate of the anti-Semitic trend in the +Government, is said to have given each week to the entire German press +several anti-Jewish leaders, which were printed by more than 3,000 +dailies and illustrated papers. If in addition we take into account that +Dr. Goebbels was making broadcasts of an anti-Semitic nature, we need no +further explanations for the fact that the interest in a one-sided +anti-Semitic journal should diminish and that is what actually happened. + +It is particularly significant that at that time it had been repeatedly +suggested that _Der Stürmer_ should be suppressed altogether. This is +brought out clearly in the testimony given by Fritzsche, on 27 June +1946, who stated in addition that neither Streicher nor _Der Stürmer_ +had any influence in the Ministry of Propaganda and that he was +considered so to speak as nonexistent. It may have been for the same +reason that _Der Stürmer_ was not even declared a press organ of the +NSDAP and was not even entitled to show the Party symbol. It was looked +upon by the Party and State administration, in contrast to all papers +which were considered to be of any importance, as a private paper +belonging to a private writer. + +The firm which published _Der Stürmer_, and which belonged at that time +to a certain Härdel, was not inclined, however, to accept so quietly the +dwindling of its circle of readers, for it was now aided by the fact +that Streicher had become the highest leader in Franconia; and it knew +how to make the most of this circumstance. Already at that time pressure +was exerted on many sections of the population to prove their loyal +political attitude and trustworthiness by subscribing to _Der Stürmer_. +The witness Fritzsche also has alluded to this circumstance, stating +that many Germans only decided to subscribe to _Der Stürmer_ because +they thought it would be a means of paving the way for their intended +membership in the Party. + +So as not to give a false impression of the circulation figures of _Der +Stürmer_ during the years between 1923 and 1933, the following analysis +will show the different stages of its development. + +In the years 1923 to 1933 _Der Stürmer_ was able to increase its +circulation from some 3,000 to some 10,000 copies, and this in turn went +up to some 20,000 shortly before the seizure of power. On the average, +however, between 1923 and 1931 the circulation was only some 6,000 +copies. Following the seizure of power, by the end of 1934 it had +reached an average of some 28,000 copies. It was not until 1935 that +_Der Stürmer_ became the property of the Defendant Streicher who, +according to his statement, bought it from the widow of the previous +owner for 40,000 RM—a not very considerable sum. From 1935 on the +management of the business was taken over by an expert, who succeeded by +clever canvassing in increasing the circulation to well over 200,000 +copies; and this figure was later increased still further until it more +than doubled. The relatively low circulation figures for _Der Stürmer_ +up to the beginning of 1935 show that, despite the Party’s rise to +power, popular interest in _Der Stürmer_ existed only to a small extent. +The extraordinary increase in the circulation which began in 1935 is to +be traced to the adroit canvassing methods already mentioned which were +carried out by the new director Fink. The use of the Labor Front, as +explained by the proclamation of Dr. Ley in Number 36 of _Der Stürmer_, +1935—which copy, Mr. President, I have taken the liberty of submitting +as an exhibit—and the acquisition thereby of many thousands of forced +subscribers must be ascribed to the personal relations of the manager +Fink with Dr. Ley. + +In that connection I further refer to a quotation from the _Pariser +Tageblatt_ of 29 March 1935 reproduced in _Der Stürmer_ of May 1935. +Here, too, it is stated that the increase of _Der Stürmer’s_ circulation +cannot be ascribed to the desire of the German people for such kind of +spiritual food. It is neither presumable nor probable in any way that +the compulsory subscription to _Der Stürmer_, forced on the members of +the Labor Front in such a manner, could have actually turned subscribers +into readers of _Der Stürmer_ and followers of its line of thought. On +the contrary, it is known that bundles of _Der Stürmer_ in their +original wrappings were stored in cellars and attics and that they were +brought to light again only when the paper shortage became more acute. + +When, therefore, the Defendant Streicher wrote in his paper in +1935—Document Number GB-169—that the 15 years’ work of enlightenment +of _Der Stürmer_ had already attracted to National Socialism an army of +a million of “enlightened” members, he claimed a success for which there +was no foundation whatsoever. The men and women who joined the Party +after 1933 did not apply for membership as a result of the so-called +enlightenment work of _Der Stürmer_ but either because they believed the +Party’s promises and hoped to derive advantages from it or because by +belonging to the Party they wanted, as the witness Severing expressed +it, to insure for themselves immunity from political persecution. The +sympathy for the Party and its leadership very soon decreased in the +most marked manner. Thus the Defendant Streicher, too, lost authority +and influence to an ever-increasing extent even in his own district of +Franconia, at least from 1937 on. The reasons for this are sufficiently +known. + +Toward the end of 1938 he saw himself deprived of practically all +political influence, even in his own district. The controversy between +him and Göring ended with the victory of the latter. Hitler, when +pressed to do so by the Defendant Göring, had dropped Streicher +completely, as the Commander-in-Chief of the Luftwaffe at that time was +naturally more important and far more influential than the Gauleiter, +Streicher. The defendant even had to submit to Aryanization as carried +out in the district of Franconia with its correctness being checked by a +special commission sent by Göring. In the course of the year 1939 +Streicher was completely pushed aside and was even forbidden to speak in +public. At the outbreak of the war, in contrast to all other Gauleiter, +he was not even appointed to the position of Wehrkreiskommissar of his +own district. + +During the last phase, in the war years, the Defendant Streicher had no +political influence whatsoever. As from February 1940 he was relieved of +his position as a Gauleiter and lived on his estate in Pleikershof, cut +off from all connections. Even Party members were forbidden to visit +him. Since the end of 1938 he had no connections whatsoever with Hitler, +by whom he had been completely cast off from that time on. + +In what way now did _Der Stürmer_ exert any influence during the war +period? It can be said that during the war _Der Stürmer_ no longer +attracted any attention worth mentioning. The gravity of the times, the +anxiety for relatives on the battlefield, the battles at the front, and +finally the heavy air attacks completely diverted the German people’s +interest from questions dealt with in _Der Stürmer_. The people were +weary of the continuous repetition of the same assertions. The best +proof of how little _Der Stürmer_ was desired as reading matter can be +seen in the fact that in restaurants and cafés _Der Stürmer_ was always +available for perusal, whereas other papers and magazines were +permanently being read. The circulation figures decreased steadily and +unceasingly in those years. Certainly the influence of _Der Stürmer_ in +the political sphere no longer amounted to anything. + +During the periods mentioned _Der Stürmer_ was rejected by large circles +of the population from the very outset. Its crude style, its often +objectionable illustrations, and its one-sidedness aroused widespread +displeasure. There can be no question of any influence being exercised +by _Der Stürmer_ upon the German people or even the Party. Although the +German people for years had been deluged with Nazi propaganda, or rather +because of that very fact, a journal such as _Der Stürmer_ could exert +no influence upon its inner attitude. Had the German people—as +maintained by the Prosecution—actually been saturated with the spirit +of fanatical racial hatred, other factors certainly would have been far +more responsible for it than _Der Stürmer_ and would have contributed +far more essentially to a hostile attitude towards the Jews. + +But nothing of such nature can be established. The general attitude of +the German people was not anti-Semitic, at any rate, not in such a way +or to such a degree that they would have desired, or approved of, the +physical extermination of the Jews. Even official Party propaganda with +regard to the Jewish problem had exerted no influence upon the broad +masses of the German people, neither had it educated them in the +direction desired by the State leadership. + +This is shown by the fact that it was necessary to issue a number of +legal decrees in order to segregate the German population from the +Jewish. The first example of this is the so-called Law for the +Protection of German Blood and German Honor of September 1935, by the +provisions of which any racial intermingling of German people with the +Jewish population was subject to the death penalty. The passing of such +laws would not have been necessary if the German people had been +predisposed to an anti-Semitic attitude, for they would then of their +own accord have segregated themselves from the Jews. + +The law for the elimination of the Jews from German economic life, +promulgated in November 1938, was along the same lines. In a people +hostile towards the Jews, any trade with Jewish circles would have +necessarily ceased and their business would have automatically come to a +standstill. Yet in fact the intervention of the State was needed to +eliminate Jewry from economic life. + +The same conclusion can be drawn from the reaction of the greater part +of the German populace to the demonstrations carried out against the +Jews during the night of 9-10 November 1938. It is proved that these +acts of violence were not committed spontaneously by the German people +but that they were organized and executed with the aid of the State and +Party apparatus upon instructions of Dr. Goebbels in Berlin. The result +and the effect of these State-directed demonstrations—which in a +cynical way were depicted for their effect abroad as an expression of +the indignation of the German people at the assassination of the +Secretary of the Embassy in Paris, Vom Rath—were different from that +visualized by the instigators of this demonstration. + +These acts of violence and excesses based upon the lowest instincts +found unanimous condemnation, even in the circles of the Party and its +leadership. Instead of creating hostility towards the Jewish population +they roused pity and compassion for their fate. Hardly any other measure +taken by the NSDAP was ever rejected so generally. The effect upon the +public was so marked that the Defendant Streicher in his capacity as +Gauleiter found it necessary in an address in Nuremberg to give a +warning against exaggerated sympathy for the Jews. According to his +statement he did not do this because he approved of these measures but +only in order to strengthen by his influence the impaired prestige of +the Party. + +Previously, as appears from the testimony of the witness Fritz Herrwerth +examined here, he refused SA Obergruppenführer Von Obernitz’s request to +take part personally in the demonstration planned and called it useless +and prejudicial. He publicly expressed this point of view later also, +during a meeting of the League of Jurists at Nuremberg. In doing so he +risked placing himself in open opposition to the official policy of the +State. + +All these facts show that despite the anti-Jewish propaganda carried on +by the Government, actual hostility against the Jewish population did +not exist among the people themselves. Thus it is as good as proved that +neither Streicher’s publications in _Der Stürmer_ nor his speeches +incited the German people in the sense maintained by the Prosecution. +Therefore the general attitude of the German nation provides no proof of +incitement to hatred of the Jews having been successfully carried out by +the Defendant Streicher and leading to criminal results. The +Prosecution, however, has further supported its accusation by the +specific assertion that only a nation educated to absolute hatred of +Jews by men like the defendant could approve of such measures as the +mass extermination of Jews. Thereby the charge is made against the whole +of the German people that they knew about the extermination of the Jews +and approved of it; the severity and consequences of such a charge on +the whole future of the German nation is impossible to estimate. + +But did the German nation really approve of these measures? A fact can +only be approved of if it is known. Therefore should this assertion of +the Prosecution be considered as proved, then logically it must also be +considered as proved that the German nation actually had knowledge of +these occurrences. However, evidence in this respect has shown that +Reichsführer SS Himmler, who was entrusted by Hitler with the mass +assassinations, and his close collaborators shrouded all these events in +a veil of deepest secrecy. By threatening with the most severe +punishments any violations of the rule of absolute silence which was +imposed, they managed to lower before the events in the East and in the +extermination camps an iron curtain which hermetically sealed off those +facts from the public. + +Hitler and Himmler prevented even the corps of the highest leaders of +the Party and State from gaining any insight and information. Hitler did +not hesitate to give false information to even his closest +collaborators, like Reich Minister Dr. Lammers, who was heard here as a +witness, and to make him believe that the removal of the European Jews +to the East meant their settlement in the Eastern Territories but by no +means their extermination. However much the statements of the defendants +may diverge on many points, in this connection they all agree so +completely with one another and with the statements of other witnesses +that the veracity of their testimonies simply cannot be questioned. If +it was not possible for even the Defendant Frank in his capacity as +Governor General of Poland to get through to Auschwitz, because without +Hitler’s special consent even he was denied entrance, then this fact +speaks for itself. + +If even the leading personalities of the Third Reich, with the exception +of a very small circle, were not informed and if even they had at best +very vague information, then how could the general public have known +about it? Under these circumstances the possibilities for finding out +what was going on in the camps were extremely slight. + +For the majority of the people, foreign news did not exist as a source +of information. Listening to foreign radio stations was punishable with +the heaviest penalties and therefore did not take place. And if it did, +the news broadcast by foreign radio stations concerning events in the +East, although, or rather because, it corresponded to facts, was so +crass, so horrible beyond any human understanding, that it was bound to +appear to any normal individual, as in fact it did, as intentional +propaganda. Germany could only gain factual knowledge of the +extermination measures against the Jews from people who either were +working in the camps themselves or came in contact with the camps or +their inmates or from former concentration camp inmates. + +There is no need to explain that members of the camp personnel who were +concerned with these happenings kept silent, not only because they were +under stringent orders to do so, but also in their own interest. +Furthermore, it is known that Himmler had threatened the death penalty +for information from the camps and for spreading news about the camps +and that not only the actual culprit but also his relatives were +threatened with this punishment. Finally, it is known that the +extermination camps themselves were so hermetically sealed off from any +contact with the world that nothing concerning the events which took +place in them could penetrate to the public. + +The prisoners in the camps who came into contact with fellow-workers in +their work kept silent because they had to. People who came to the camps +were also under the threat of this punishment insofar as they could +obtain any insight into things at all, which was all but impossible in +the extermination camps. From these sources, therefore, no knowledge +could come for the German people. + +But the order for absolute silence was compulsory to a still greater +measure for every concentration camp inmate who had been released. +Hardly anybody ever came back to life from the actual murder camps; but +if, once in a while, a man or woman was released, in addition to the +other threatened punishments the threat of being sent back to the camp +hung over them if they violated the order for silence. And this renewed +detention would have meant gruesome death. + +It was therefore nearly impossible to learn from released concentration +camp prisoners positive facts concerning the occurrences in the camps. +If this was the case with regard to normal concentration camps in +Germany, it applied in a still greater measure to the extermination +camps. Every lawyer who, as I did, defended people before detention in a +concentration camp and who was visited by them again after their +release, will be able to confirm that it was not possible, even in such +a position of trust and under the protection of professional legal +secrecy, to get former concentration camp inmates to talk. + +If men such as Severing, who testified here—a Social Democrat of long +standing, who was highly trusted by his party comrades and who was, +because of this, in touch with many former concentration camp +inmates—came to know of the real facts connected with the extermination +of the Jews only very late and even then to a very restricted extent, +then such considerations must apply even more to any normal German. + +It can be derived with absolute certainty from these facts that the +leaders of the State, that Hitler and Himmler, wanted under all +circumstances to keep secret the extermination of the Jews; and this +forms the base for another argument—in my opinion, a cogent +one—against the anti-Semitism of the German people asserted by the +Prosecution. If the German people had indeed been filled with such +hatred of Jewry as the Prosecution affirms, then such rigorous methods +for secrecy would have been superfluous. + +If Hitler had been convinced that the German nation saw in the Jews its +principal enemy, that it approved of and desired the extermination of +Jewry, then he would obviously have published the planned and also the +effected extermination of this very enemy. As a sign of the “total war” +constantly propagandized by Hitler and Goebbels, there would indeed have +been no better means to strengthen the faith in victory and the will of +the people to fight than the information that Germany’s principal enemy, +these very Jews, had already been annihilated. + +So unscrupulous a propagandist as Goebbels certainly would not have +failed to use such a striking argument if he could have based it on the +necessary presupposition, that is, the German people’s absolute +determination to exterminate the Jews. However, the “final solution” of +the Jewish question had by all possible means to be kept secret even +from the German people who had for years been subjected to the heaviest +pressure by the Gestapo. Even leading men in the State and the Party +were not allowed to be told of it. + +Hitler and Himmler were evidently themselves convinced that even in the +midst of a total war, and after decades of education and gagging by +National Socialism, the German nation—and above all its Armed +Forces—would have reacted most violently on the publication of such a +policy against the Jews. The policy of secrecy followed here cannot be +explained by any considerations of the enemy nations. In the years 1942 +and 1943 the whole world was already engaged in a bitter war against +National Socialist Germany. + +An intensification of this struggle seemed hardly possible, at any rate +not by the mere publishing of facts which had long since become known +abroad. Apart from this, considerations of making a still worse +impression on the enemy countries could hardly influence men such as +Hitler, Goebbels, and Himmler. + +If they had expected to achieve even the slightest tangible results by +proclaiming to the German people the extermination of the Jews, they +would certainly not have omitted to proclaim it. On the contrary, they +would have tried in every way to strengthen by this means the German +people’s faith in victory. The fact that they did not do this is the +best proof that even they did not consider the German people radically +anti-Semitic, and it is also the best proof that there can be no +question of such anti-Semitism on the part of the German people. + +I may therefore sum up by saying that all this stands in contradiction +to the Prosecution’s assertion that the Defendant Streicher brought up +the German people to hate the Jews to an extent which made them approve +of the extermination of Jewry. Therefore, even if the defendant by means +of his proclamations had aimed at achieving such an end he was not +successful. + +In this connection, light must also be thrown upon the part attributed +by the Prosecution to the Defendant Streicher, namely that he had +educated German youth in the spirit of anti-Semitism and had inculcated +the poison of anti-Semitism so deeply into their hearts that these +pernicious effects would be felt long after his death. + +The main reproach made against the defendant in this connection is based +on the fact that young people, as a result of Streicher’s education in +hatred toward the Jews, are supposed to have been ready to commit crimes +against Jews which otherwise they would not have committed, and that +youth thus educated might be expected to perpetrate such crimes in the +future too. Here the Prosecution relies mainly on the juvenile +literature published by Der Stürmer and some announcements addressed to +youth which appeared in this paper. + +Far be it from me to gloss over these products or to defend them. +Evaluation of them can and must be left to the Tribunal. In accordance +with the basic principle of the Defense, the only question to be taken +up here will be whether or not the defendant in any way influenced the +education of youth in a manner to promote criminal hatred of Jews. + +As for the books which have been mentioned here, it must be said that +German youth scarcely knew of their existence—much less did they read +them. No evidence has been produced in support of the Prosecution’s +assumption to the contrary. The healthy common sense of German youth +refused such stuff. German boys and girls preferred other reading +material. It may be emphasized in this connection that neither the text +nor the illustrations in these books could attract youth in any way. +They were, on the contrary, bound to be shunned. + +Of special importance in regard to this point is the fact that, +Defendant Baldur von Schirach, the man responsible for educating the +whole body of German youth, testified under oath that the +afore-mentioned juvenile books published by this company were not +circulated by the Hitler Youth Leadership and did not find a circle of +readers among the Hitler Youth. The witness made the same assertions in +regard to _Der Stürmer_. One of his closest co-workers, the witness +Lauterbacher, stated in this connection that _Der Stürmer_ was actually +banned for the Hitler Youth by the Defendant Von Schirach. It is clear +that the very style and illustrations of _Der Stürmer_ were ill-adapted +to attract the interest of young persons or to offer them ethical +support. The step taken by the Reich Youth Leadership is therefore quite +understandable. + +Although some of _Der Stürmer_ articles submitted by the Prosecution +seem to indicate that _Der Stürmer_ was read in youth circles and +produced a certain effect there, it must be borne in mind that these +were typical commissioned articles, that is, commissioned for propaganda +purposes. There is no evidence whatsoever to support the Prosecution’s +assertion that German youth harbored criminal hate toward Jews. +Therefore, neither the German people nor its youth ... + +THE PRESIDENT: Dr. Marx, perhaps this would be a convenient time to +break off. + + [_A recess was taken._] + +DR. MARX: One might now be tempted to assume that _Der Stürmer_ +exercised a particularly strong influence upon the Party organizations, +the SA and SS; but this was not the case either. The SA, the largest +mass organization of the Party, rejected _Der Stürmer_ just as did the +mass of the people. Its publications were _Der SA-Führer_ and _Die SA_. +The mass of the SA took these as the foundation of their ideology. These +publications do not contain even one article from the pen of the +Defendant Streicher. If the latter had really been the man the +Prosecution believes him to be, the most authoritative and influential +propagandist of anti-Semitism, he would of necessity have been called +upon to collaborate in these publications, which were issued to instruct +the SA on the Jewish question. A publication intended to provide +ideological instruction could never have dispensed with the +collaboration of such a man. + +The fact that not one word by Julius Streicher himself ever appeared in +these papers demonstrates afresh that the picture drawn of him by the +Prosecution does not correspond in any way with the actual facts. The +Defendant Streicher could gain no influence over the SA through his +paper and the columns of _Der SA-Führer_ and _Die SA_ were closed to +him. Even the highest SA leaders refused to advocate his ideas. The SA +Deputy Chief of Staff, SA Obergruppenführer Jüttner, testifying before +the commission on 21 May 1946, made the following statement in this +connection: + + “At a leader conference, the former SA Chief of Staff, Lutze, + stated that he did not want propaganda for _Der Stürmer_ in the + SA. In certain groups _Der Stürmer_ was even prohibited. The + contents of _Der Stürmer_ disgusted and repelled most of the SA + men. The policy of the SA with regard to the Jewish question was + in no way directed at the extermination of the Jews; it aimed + only at preventing a large-scale immigration of Jews from the + East.” + +The ideology of _Der Stürmer_ was thus rejected on principle by the +individual SA man as well as by the SA leaders, and there is therefore +no question of Streicher’s having influenced the SA. + +Not only was the Defendant Streicher not asked to collaborate in SA +publications, but his articles did not appear in any other newspapers +and publications. He was given no chance of contributing either to the +_Völkischer Beobachter_ or to other leading organs of the German press, +although the Propaganda Ministry intended enlightenment on the Jewish +question to form one of the noblest tasks of the German press. + +The Defendant Streicher was given no opportunity, either by the State +leadership or by the Propaganda Ministry, of impressing his ideas upon a +wider circle. The Defendant Fritzsche, the man who shared the decisive +authority in the Propaganda Ministry, testified that Streicher never +exerted any influence upon propaganda and that he was completely +disregarded. In particular, he was not entrusted with radio talks, +although talks given over the radio would have had much greater effect +on the masses than an article in _Der Stürmer_, which necessarily +reached only a limited circle. The fact that even the official +propaganda of the Third Reich made no use of the Defendant Streicher +makes it clear that no results could be expected from his activities, +and that, in fact, he had no influence at all. The official leaders of +the German State recognized Streicher for what he actually was, the +insignificant publisher of an entirely insignificant weekly. It must be +stressed once more as clearly as possible that the fundamental attitude +of the German people was no more radically anti-Semitic than that of +German youth or the Party organizations. Success in instigating and +inciting to criminal anti-Semitism is, therefore, not proven. + +I now come to the last and decisive part of the accusation, that is, to +the examination of the question: Who were the chief persons responsible +for the orders given for the mass-extermination of Jewry; how was it +possible that men could be found who were ready to execute these orders; +and whether without the influence of the Defendant Streicher, such +orders would not have been given or executed. + +The main person responsible for the final solution of the Jewish +question—the extermination of Jewry in Europe—is without doubt Hitler +himself. Though this greatest of all trials in world history suffers +from the fact that the chief offenders are not sitting in the dock, +because they are either dead or not to be found, the facts ascertained +have nevertheless resulted in cogent conclusions concerning the actual +responsibility. + +It can be considered as proved beyond any doubt that Hitler was a man of +unique and even demoniacal brutality and ruthlessness who, in addition, +later lost all sense of proportion and all self-control. The fact that +his chief characteristic was ruthless brutality became apparent for the +first time in its force when the so-called Röhm Putsch was suppressed in +June 1934. On this occasion Hitler did not hesitate to have his oldest +fellow combatants shot without any kind of trial. His unrestrained +radicalism was further revealed in the way in which the war with Poland +was conducted. He ordered the ruthless extermination of leading Polish +circles merely because he feared an antagonistic attitude toward Germany +on their part. The orders which he gave at the beginning of the Russian +campaign were still more drastic. At that time he already ordered +partial operations for the extermination of Jewry: + +These examples show beyond doubt that respect for any principle of +humanity was alien to this man. Furthermore the proceedings, by the +depositions of all the defendants, have clearly established the fact +that in basic decisions Hitler was not open to any outside influence. + +Hitler’s basic attitude toward the Jewish question is well known. He had +already become an anti-Semite during the time he spent in Vienna in the +years before the first World War. There is, however, no actual proof +that Hitler from the very beginning had in mind such a radical solution +of the Jewish question as was finally effected in the annihilation of +European Jewry. When the Prosecution declares that from the book _Mein +Kampf_ a direct road leads to the crematories of Mauthausen and +Auschwitz, this is only an assumption; and no evidence for it has been +given. The evidence rather suggests the fact that Hitler also wanted to +see the Jewish problem in Germany solved by way of emigration. This +thought, as well as the position of the Jewish part of the population +under the laws governing aliens, formed the official State policy of the +Third Reich. Many of the leading anti-Semites considered the Jewish +question as settled after the laws of 1935 had been promulgated. The +Defendant Streicher shared this opinion. The stiffening of Hitler’s +attitude to the Jewish question cannot be traced back beyond the end of +1938 or the beginning of 1939. Only then did it become apparent that in +case of war—which he believed was propagated by the Jews—he was +planning a different solution. In his Reichstag speech on 30 January +1939 he predicted the extermination of Jewry should a second World War +be let loose against Germany. He expressed the same ideas in a speech +made in February 1942, on the occasion of the 20th anniversary of the +day on which the Party was founded. And, finally, his testament, too, +confirms his exclusive responsibility for the murdering of European +Jewry as a whole. + +Though Hitler had adopted an increasingly implacable attitude on the +Jewish question ever since the beginning of the war, there is nothing to +show that he visualized the extermination of the Jews in the early +stages of the war. His final resolution to this effect was undoubtedly +formed when Hitler, probably as early as 1942, saw that it was +impossible to secure a victory for Germany. + +It can be assumed almost with certainty that the decision to exterminate +the Jews originated—as did almost all of Hitler’s plans—exclusively +with himself. It cannot be ascertained with certainty how far others who +were closely attached to Hitler brought their influence to bear on him. +If such influence did exist, it can only have come from Himmler, +Bormann, and Goebbels. It can at least be stated beyond any doubt that +during the decisive period from September 1939 to October 1942 Streicher +did not influence him, nor, under the circumstances, could he have done +so. At that time Streicher was living—deprived of all his offices and +completely left in the cold—at his farm at Pleikershof. He had no +connection with Hitler either personally or by correspondence. This has +been proved beyond all doubt by the statements made by the witnesses +Fritz Herrwerth and Adele Streicher, and by the statement under oath of +the defendant himself. It cannot, however, be maintained in earnest that +his reading of _Der Stürmer_ moved Hitler to give orders for wholesale +murder. This should make it clear that the Defendant Streicher had no +influence whatever on either the man who made the decision to +exterminate Jewry, or on the orders issued by him. + +In October 1942 Bormann’s decree ordering the extermination of Jewry was +issued (Document 3244-PS). It has been established beyond all question +that this order came from Hitler and went to Reichsführer SS Heinrich +Himmler, who was charged with the actual extermination of the Jews. He +for his part charged the Chief of the Gestapo, Müller, and his +commissioner for Jewish affairs, Eichmann, with the final execution of +the order. These three men are the three who are chiefly responsible, +next to Hitler. It has not been proved that Streicher had any +possibility of influencing them, or that he did actually influence them. +He states—and there is no proof to the contrary—that he never knew +either Eichmann or Müller, and that his relations with Himmler were +slight and far from friendly. + +Casually it might be mentioned that Himmler was one of the most radical +anti-Semites of the Party. From the beginning he had advocated a +merciless fight against the Jews; and in any case, judging by what we +know of him, he was not the man to allow himself to be influenced by +others in matters of principle. Apart from that, however, a comparison +of the two personalities shows that Himmler was in every way the +stronger and superior man of the two, so that for this reason alone the +exertion of any influence by the Defendant Streicher on Himmler may be +ruled out. I believe I may refrain from further illustration of this +point. + +I now come to the question of whether the activity of the Defendant +Streicher had a decisive influence on the men who actually carried out +the orders; that is, on members of the Einsatzgruppen on the one hand, +and on the execution Kommandos in the concentration camps on the other; +and whether any spiritual and intellectual preparation was necessary to +make these men willing to execute such measures. + +In his speeches in Nikolaev, Posen, and Kharkov—which have often been +mentioned here—the Reichsführer SS stated unequivocally not only that +he besides Hitler was responsible for the final solution of the Jewish +question, but also that the execution of the orders was only made +possible by the employment of forces which he himself had selected from +among the SS. We know from Ohlendorf’s testimony that the so-called +Einsatzgruppen consisted of members of the Gestapo and the SD, companies +of the Waffen-SS, members of the police force with long service records, +and indigenous units. + +It must be stated as a matter of principle that the Defendant Streicher +never had the slightest influence on the ideological attitude of the SS. +The extensive evidence material of this Trial contains no shadow of +proof that Streicher had any connections with the SS. The alleged Enemy +Number One of the Jews, the great propagandist of the persecution of the +Jews—as he has been pictured by the Prosecution—the Defendant +Streicher never had the opportunity of writing for the periodical _Das +Schwarze Korps_ or even for the _SS Leithefte_. These periodicals alone, +however, as the official mouthpieces of the Reichsführer SS, determined +the ideological attitude of the SS. These SS periodicals also determined +their attitude toward the Jewish question. In these circles _Der +Stürmer_ had just as small a public; it was rejected, just as it was in +other circles. Himmler himself rejected Streicher ironically as an +ideologist. Therefore the Defendant Streicher could not have had any +influence on the ideology of the SS members of the Einsatzgruppen, much +less on the old members of the Police, and least of all on the foreign +units. Nor could he dictate the ideology of the execution squad’s in the +concentration camps. Those men originated for the most part from the +Death’s Head Units, that is the old guard units, of whom the above +statement is true to a greater degree. Added to this is the fact that +the experienced members of the Police, as well as the SS men with long +service records, were trained in absolute obedience to their leaders. +Absolute obedience to a Führer command was a matter of course for both. + +Even those experienced police force members, however, accustomed as they +were to absolute obedience, even the veteran SS men, could not simply be +charged by Himmler with carrying out the executions of the Jews. Rather +did he have to select men whom he trusted to lead these execution squads +and to make them personally responsible for their assignments, pointing +out explicitly that he would take all responsibility and that he himself +was only passing on a definite order from Hitler. + +Even these men, whom the Prosecution alleges to have been the elite of +Nazism, were so far from being enemies of the Jews in the meaning of the +Indictment, that the entire authority of the head of State and Führer, +and of his most brutal henchman, Himmler, was required to force upon the +men responsible for carrying out the execution orders the conviction +that their order was based on the will of the authoritarian head of the +State; an order which, according to their conviction, had the power of a +fundamental State law and therefore was above all criticism. + +The men charged to carry out the annihilation, therefore, obeyed their +orders not for ideological reasons and not because they were incited to +do so by Streicher, as the Prosecution contends, but solely in obedience +to an order from Hitler transmitted to them through Himmler, and knowing +that disobedience to a Führer order meant death. In this respect, too, +therefore, Streicher’s influence has not been proved. + +The accusations brought against the defendant by the Prosecution are +herewith exhausted. But, in order to reach a conclusion and to form a +judgment of the defendant which will take the actual findings fully into +account, it seems advisable to give once more a short account of his +personality and his activities under the Hitler regime. + +The Prosecution considers him to be the leading anti-Semite and the +leading advocate of a ruthless determination to annihilate Jewry. This +conception, however, does justice neither to the part played by the +defendant and the influence actually exercised by him, nor to his +personality. The manner of the defendant’s employment in the Third Reich +and the way in which he was called upon to co-operate in the propagation +and final solution of the Jewish question shows the Prosecution’s +conception to be false. The only occasion on which the defendant was +called upon to take an active part in the fight against Jewry was in his +capacity as chairman of the Action Committee for the Anti-Jewish Boycott +Day on 1 April 1933. His attitude on that day is in direct opposition to +his violent utterances in _Der Stürmer_ and makes it evident that the +passages in his paper which have been attacked were pure propaganda. +Although on that day he could have drawn upon the whole power of State +and Party against Jewry, he was content to order that Jewish places of +business be marked as such and put under guard. In addition, he gave +explicit instructions that any molestation of the Jews or acts of +violence, or any damage to Jewish property, was forbidden and would be +punished. In the later stages no further use at all was made of the +defendant. He was not even consulted on the ideological basis for the +settlement of the Jewish question. He was unable to voice his ideas in +the press or over the air. He was not asked to write on the +clarification of the Jewish question either in the _Schulungsbriefe_ of +the Party or the periodicals belonging to the organizations. + +Not he but the Defendant Rosenberg was charged by Hitler with the +ideological training of the German people. The latter was responsible +for the Institute for Research into the Jewish Question, set up in +Frankfurt, and not the Defendant Streicher; in fact, the latter was not +even considered as a collaborator in this institute. The Defendant +Rosenberg was commissioned with the arrangement of an Anti-Jewish World +Congress in 1944. It is true that this assembly did not take place, but +it is significant that the plans made for it did not include the +participation of the Defendant Streicher. + +The whole of the anti-Jewish laws and decrees of the Third Reich were +drafted without his participation. He was not even called in to draft +the racial laws proclaimed at the Party rally in Nuremberg in 1935. The +Defendant Streicher did not take part in a single conference on even +moderately important questions in either peace or wartime. His name does +not appear on any list of participants or on any minutes. Not even in +the course of the discussions themselves is one single reference made to +his name. + +The fight against Jewry in the Third Reich grew more and more embittered +from year to year, especially after the outbreak of war and during its +course. In contrast to this, however, the influence of the Defendant +Streicher yearly grew weaker. Already by 1939 he was almost entirely +pushed aside and had no relations with Hitler or other leading men of +State and Party. In 1940 he was relieved of his office as Gauleiter and +after that he played no further part in political life. + +If the Defendant Streicher had really been the man the Prosecution +believes him to be, his influence and his activity would have increased +automatically with the intensification of the fight against the Jews. +His career would not have ended, as it actually did, in political +powerlessness and banishment from the scene of action, but with the +commission to carry out the destruction of Jewry. + +It cannot be denied that by writing _ad nauseam_ on the same subject for +years in a clumsy, crude, and violent manner, the Defendant Streicher +has brought upon himself the hatred of the world. By so doing, he has +created a strong feeling against himself which led to his importance and +influence being rated far higher than they actually were, for which he +now runs the risk of having the extent of his responsibility similarly +misjudged. + +The defense counsel, who in this case had a difficult and thankless +task, had to limit himself to presenting those aspects and facts which +allow the true significance of this man and the role he played in the +tragedy of National Socialism to be recognized. But it cannot be the +task of the Defense to deny indisputable facts and to defend acts for +which absolutely no excuse exists. + +The fact remains, therefore, that this defendant took part in the +demolition of the main synagogue of Nuremberg, and thus allowed a place +of religious worship to be destroyed. The defendant states as an excuse +that his aim in so doing was not the demolition of a building meant for +religious worship, but the removal of an edifice which appeared out of +place in the Old Town of Nuremberg, and that his opinion had been shared +by art experts. The truth of this was proved by the fact that he left +the second Jewish house of worship untouched until it finally, and +without his connivance, went up in flames during the night of 9 to 10 +November. However that may be, the defendant shows the same lack of +scruple here as he does in his other actions. He must account here for +his actions in this connection alone; the Defense cannot shield him. But +here, too, the fact that the population of Nuremberg disapproved of +these actions clearly and unmistakably must be stressed. It was clear to +any impartial observer that the people viewed such actions with icy +detachment and that only brute force could compel them to tolerate such +measures and to look on at such senseless proceedings. + +It is just as impossible for the Defense to express any opinion on the +revival of the ritual murder myth. No interest whatsoever was taken in +these articles; but their tendency is obvious. The only point in the +defendant’s favor, apart from the good faith with which we must credit +him, is the fact that the author of these articles was not himself, but +Holz; he must, however, put up with the charge that he allowed it to +happen. + +It must appear incomprehensible that the defendant continued to play a +part in the publication of _Der Stürmer_ long after he had been +politically crippled and vanished from the scene of action. This very +fact reveals his one-track mind better than anything else. + +When the Prosecution accuses the defendant of having aimed at the +physical annihilation of the Jews and prepared the way for this later +result by means of his publications, I would like to refer to the +statements given by the defendant under oath at his interrogation, to +which I am here referring in their entirety. + +The defendant claims that in the long series of articles published by +_Der Stürmer_ since its foundation there were none demanding actual +deeds of violence against the Jews. He also claims that among the +issues, of which there were over one thousand, only about 15 were found +to contain expressions which could form the basis for a charge against +him in the meaning of the Indictment. + +On the contrary, the defendant argued that his articles and speeches had +always shown an unmistakable tendency to achieve a solution of the +Jewish problem in its entirety throughout the world, since any kind of +partial solution would serve no useful purpose and failed to reach the +heart of the problem. Basing himself on this very point of view he had +always expressed himself unequivocally as opposed to any kind of +violence, and he would never have approved of an action such as that +finally carried out by Hitler in such a gruesome manner. + +This must raise serious doubts as to whether the defendant can be proved +to have agreed with the mass murders practiced on Jewry, and I leave +this decision to the Tribunal. In any case, he himself refers to the +fact that he had no reasonably certain knowledge of these wholesale +murders until 1944, a fact corroborated by the statements of the +witnesses Adele Streicher and Hiemer. + +He considered the articles published in the _Israelitisches Wochenblatt_ +as propaganda and consequently did not believe them. In this connection, +the fact that up to the autumn of 1943 he did not in any article express +satisfaction concerning the fate of Jewry in the East is in his favor. +Although he did write then on the disappearance of the Jewish reservoir +in the East, there is nothing to show that he had any reliable source of +information at his command. He might, therefore, very well have believed +that this process of disappearance was not identical with physical +annihilation but might represent the evacuation of the Jewish population +assembled there to neutral countries or the territory of the Soviet +Union. As no evidence has been presented to show that the defendant had +received hints from any quarter in regard to the intended extermination +of Jewry, he could not have conceived of such a diabolical occurrence +which appears to be utterly inconceivable to the human mind. And it +certainly cannot be assumed that the mental capacity of the defendant +should have enabled him to foresee a solution of the Jewish question +such as could only have originated in the brain of a person who was no +longer in his right senses. + +The defendant describes himself as a fanatic and seeker of truth. He +professes to have written nothing and to have expressed nothing in his +speeches which he had not taken from some authentic source and properly +confirmed. + +There is no doubt that he was a fanatic. The fanatic, however, is a man +who is so possessed or convinced of an idea or illusion that he is not +open to any other consideration, and is convinced of the correctness of +his own idea and no other. A psychiatrist might regard it as a sort of +mental cramp. Fanaticism of any kind is not far removed from maniacal +obsession. As a rule it goes along with considerable overestimation of +oneself and overevaluation of one’s own personality and its influence on +the world around it. + +Not one of the defendants here on trial shows such a wide discrepancy +between fact and fancy as does the Defendant Streicher. + +The Prosecution showed him as he appeared to the outside world. What he +really was—and is—has been shown by the Trial. But only actual facts +can form the basis for the judgment. Base your judgment also, Gentlemen, +on the fact that the defendant in his position as Gauleiter of Franconia +also showed many humane characteristics—that he had a large number of +political prisoners released from concentration camps, which even caused +criminal proceedings to be started against him. It should also be borne +in mind that he treated the prisoners of war and the foreign laborers +working on his estate very well in every respect. + +Whatever the judgment against the Defendant Streicher may be, it will +concern the fate of a single individual. It seems to be established, +however, that the German people and this defendant were never in +agreement on this essential question. The German people always +disapproved of the aims of this defendant as expressed in his +publications, and retained its own opinion of and attitude toward the +Jews. + +The Prosecution’s assumption that the tendentious articles in _Der +Stürmer_ found an echo or a ready acceptance among the German +population, or even produced an attitude which would readily accept +criminal measures, is herewith fully refuted. + +The overwhelming majority of the German nation preserved their sound +common sense and showed themselves disinclined toward all acts of +violence. The nation may therefore claim to be declared free of all +moral complicity in, and co-responsibility for, those crimes before the +public tribunal of the world, so as to be able again to take its place +in the ranks of the nations. + +I leave the decision on the guilt or innocence of this defendant in the +hands of the High Tribunal. + +THE PRESIDENT: I call on Dr. Sauter for the Defendant Funk. + +DR. FRITZ SAUTER (Counsel for Defendant Funk): Gentlemen of the +Tribunal, I have the task of examining the case of the Defendant Dr. +Walter Funk. That is to say, I am to deal with a topic which +unfortunately is especially dry and prosaic. May I first make a short +statement. + +I shall on principle refrain from making any statements on legal, +political, historical, or psychological matters which may be too +general, although the temptation to make such general statements, +particularly within the framework of these proceedings, may be +considerable. General statements of the kind have already been made in +abundance by my colleagues and will probably be still further +supplemented. Therefore, I shall limit myself to examining and +presenting to you from the point of view of the Defense the picture +which the evidence in this Trial shows of the personality of the +Defendant Funk, his actions, and their underlying motives. + +Gentlemen of the Tribunal, the entire course of this Trial and the +particular evidence offered in his own case have shown that the +Defendant Funk did not play a decisive part in the National Socialist +regime at any time and in any of the cases indicted here. + +Funk’s authority of decision was always limited by the superior powers +of others. The defendant’s statement, made during his personal +examination, that he was allowed to come up to the door, but was never +permitted to enter, has been shown by the evidence to be quite correct. + +Funk was entrusted with tasks by the Party—as distinct from the +State—only during the last year prior to the seizure of power, that is, +in 1932. These, however, were of no practical significance, as they were +of very short duration. Funk was never appointed to any Party office +after the seizure of power. He was never a member of any Party +organization—SS, SA, or Corps of Political Leaders. Funk was a member +of the Reichstag for only a little more than 6 months shortly before the +seizure of power. Consequently he was not a member of the Reichstag when +the fundamental laws for the consolidation of National Socialist power +were passed. The Reich Cabinet passed the laws for which Funk is held +responsible, in particular the Enabling Act, at a time when Funk had not +yet been made a member of the Cabinet. At this, it will be remembered, +he did not become a member until the close of 1937 by virtue of his +appointment as Minister of Economics, that is, at a time when no further +Cabinet sessions were held. As Press Chief of the Reich Cabinet Funk had +neither a seat nor a vote in the Cabinet and could exert no influence +whatsoever upon the contents of the bills drafted. I refer to Lammers’ +statement in this connection. The same applies to the racial laws, the +so-called Nuremberg Laws. + +Funk’s relations with the Führer only became closer for a period of 18 +months during which he had to give regular press reports to Hitler in +his capacity as Press Chief of the Reich Cabinet, that is, from February +1933 to August 1934, up to the death of Reich President Von Hindenburg. +Later, Funk reported to Hitler only on very rare occasions. In this +connection the witness Dr. Lammers makes the following statement: + + “Later he (Funk) only visited Hitler in his capacity of Reich + Minister of Economics on very rare occasions. He was frequently + not invited to attend conferences—even those to which he should + have been invited. He complained to me about this frequently. + The Führer often raised objections, saying that there were + various reasons against Funk and that he himself viewed Funk + skeptically and did not want him.” + +That is the testimony given by Dr. Lammers on 8 April 1946. When asked +whether Funk had often complained to him about his unsatisfactory +position as Reich Minister for Economics and about the anxiety caused +him by conditions generally, Dr. Lammers replied: + + “I know that Funk was very much worried and that he wanted an + opportunity to discuss his anxieties with the Führer. He was + extremely anxious for an opportunity of reporting to the Führer + in order to obtain information, at least, about the war + situation.” (That was in 1943 and 1944). And Lammers continues: + “With the best intentions in the world, Funk could not obtain an + audience from the Führer, and I was unable to get him to the + Führer.” + +Funk explains the striking fact that he was invited to attend only four +or five Führer conferences during the whole of his ministerial activity +by saying that Hitler did not need him. Up to 1942 Hitler issued his +instructions in economic affairs to Göring, who in his capacity of +Delegate for the Four Year Plan was responsible for the entire economy. +From the beginning of 1942 Hitler also issued instructions to Speer, who +as Armament Minister had special authority to issue directives to all +branches of production and from 1943 personally directed the entire +production. Funk therefore never played the principal part in the +economy of the National Socialist Reich, but always only a subordinate +role. This was specifically confirmed by his Codefendant Göring in his +statement on 16 March: + + “Naturally, in view of the special powers delegated to me + (Göring) he had to follow my directives in the field of economy + and the Reichsbank. The responsibility for the directives and + policy of the Minister for Economics and President of the + Reichsbank Funk is entirely mine.” + +In the session of 20 June the Defendant Speer also testified that in his +capacity as Armament Minister he reserved to himself from the very +beginning any authority of decision in the most important economic +spheres such as coal, iron and steel, metal, aluminum, and the +production of machinery. Prior to Speer’s commission at the beginning of +1942, electric power and building were entirely under the jurisdiction +of Armament Minister Todt. + +For the greater part, the evidence submitted by the Prosecution in the +case of the Defendant Funk does not relate to acts personally committed +by Funk or instructions issued by him, but rather to the various and +widely differing positions which he occupied. On Page 29 of the trial +brief the Prosecutor himself declares that the argument offered against +Funk may be described as inferential. The Prosecution starts from the +assumption that judging by the positions which he had held Funk must +have had knowledge of the various events which form the subject of the +accusation. Generally speaking, the Prosecution refers to instructions +and directives issued by Funk personally only in the case of the +application instructions which he issued in November 1938 in connection +with the Four Year Plan decrees for the elimination of Jews from +economic life. I shall deal with this chapter separately at a later +stage. + +Finally, Funk was not invited to attend political and military +conferences. His position was that of a technical minister with very +limited power of decision. + +As Reich Minister for Economics Funk was subordinated to the Four Year +Plan, that is, to Göring. Later on, the Armament Minister became Funk’s +superior. And finally, as was shown by the testimony of Göring, Lammers, +and Hayler, the Ministry of Economics became a regular trade ministry, +which dealt mainly with the distribution of consumers’ goods and with +the technicalities of foreign trade. Similarly in the case of the +Reichsbank the Four Year Plan determined the use of gold and foreign +currency. The Reichsbank was deprived of its right to decide on the +credits to be granted to the Reich for the internal financing of the war +when Funk took over office as its President. Funk is thereby exonerated +of any responsibility for the financing of the war. The responsible +agency so far had always been the Reich Minister of Finance: In other +words, not Funk. Finally, as Plenipotentiary for Economics, Funk’s sole +task in August 1938 was to co-ordinate the civil economic resources for +such measures as would guarantee a smooth conversion from peace to +wartime economy. These consultations resulted in the proposals presented +by Funk to Hitler on 25 August 1939 in the letter which has been several +times quoted under Document Number 699-PS. At his examination Funk +stated that this letter did not portray matters with complete accuracy, +since it was a purely private letter, a letter of thanks for birthday +congratulations received from Hitler. This point will have to be taken +up again later, as the Prosecution particularly emphasized Funk’s +position as Plenipotentiary for Economics. The evidence shows that his +position as Plenipotentiary General was Funk’s most disputed position, +but also his weakest. + +With regard to the occupied territories Funk had no decisive authority +whatsoever. All the witnesses interrogated on the point testified to +this. But all witnesses also confirmed that Funk always opposed the +spoliation of the occupied territories. He fought against German +purchases in the black markets; he opposed the abolition of the foreign +exchange relations with Holland, a measure intended to facilitate German +purchases in Holland; and, as we have heard from the witness Neubacher, +he organized exports to Greece from Germany and the eastern European +states, and even sent gold there. He also repeatedly opposed the +financial overburdening of the occupied territories especially in 1942 +and 1944, and the raising of the occupation costs in France. He defended +the currency of the occupied countries against reported attempts at +devaluation. In the case of Denmark he even succeeded in raising the +value of the currency, in spite of all opposition. Furthermore, Funk +fought against the arbitrary stabilization of exchange when currency +arrangements were made with occupied countries. Germany’s clearing debt +was always recognized by Funk as a true commercial debt even with regard +to the occupied countries. This is shown especially by his proposal, +mentioned here, to commercialize this clearing debt by a loan to be +issued by Germany for subscription in all European countries. Funk was +also opposed to the overworking and especially to the compulsory +employment of foreign labor in Germany. + +The Defendant Sauckel has already testified to this at his interrogation +here. The witnesses Hayler, Landfried, Puhl, and Neubacher, and the +Codefendant Seyss-Inquart, have all confirmed that these measures taken +by Funk had favorable results for the occupied countries. According to +these statements Funk always strove to keep order in the economic and +social life of the occupied territories and to preserve it as far as +possible from disintegration. He always disapproved and opposed radical +and arbitrary measures and favored agreements and compromises. Even +during the war Funk was always thinking of peace. This statement was +made by the witnesses Landfried and Hayler, who added that Funk was +repeatedly reproached for his attitude by the leading State and Party +offices. The Defendant Speer also testified at his interrogation that +during the war Funk had employed too many workers in the manufacture of +consumers’ goods and that it was for this reason that Funk had to hand +over the management of the consumers’ goods production in 1943. + +That Funk revolted against the horrible “scorched earth” policy just as +Speer did has been proved to the Court by Speer himself, as well as by +the witness Hayler on 7 May 1946. This witness declared that he had +seldom seen Funk so much upset as he was when informed of this order for +destruction. Hayler testified that Funk, in his capacity of Reich +Minister of Economics and President of the Reichsbank, gave orders that +existing stocks should be protected from destruction as decreed, in +order to insure a supply of consumers’ goods necessary for the +population and to safeguard currency transactions in the German +territory which had been abandoned. + +The aim of Funk’s economic policy—one might call it the mainspring of +his life work—was the formation of a European economic community based +on a just and natural balance of interest of the sovereign states. Even +during the war he relentlessly pursued this goal, although the +exigencies of war and the restraints imposed on development by the war +naturally impeded these efforts at every turn. Funk has given a graphic +description of the economic Europe which he envisaged and strove to +attain in some major speeches on economic policy. Extracts from some of +these speeches, many of which received a hearing even in neutral and +enemy countries, are included in the document book. + +In judging the acts of the Defendant Funk, his whole personality must +naturally be taken into consideration to some extent in investigating +the motives from which he acted. Funk was never looked upon by the +German people—as far as he was known at all—as a Party man capable of +participating in brutal outrages, using methods of violence and terror +or amassing fortunes at the expense of others. He inclined rather toward +art and literature, which preference he shared with—for instance—his +friend Baldur von Schirach. Originally, as you have been told, he wanted +to study music, and in later years he preferred to have poets and +artists in his house rather than, men of the Party and the State. In +professional circles he was known and respected as an economist and a +man with a wide theoretical and historical knowledge, who had risen from +journalism and had been a brilliant stylist. His position as chief +editor of the distinguished _Berliner Börsenzeitung_ was on a sound +economic basis; by accepting the office of Press Chief in the Reich +Cabinet at the beginning of 1933, after Hitler’s assumption of power, he +even incurred a financial loss. Therefore, he was not one of those +desperados who were glad to get into a well-paid position through +Hitler. On the contrary, he made a financial sacrifice when he took over +the State office offered him, and it therefore seems perfectly credible +that he did this out of patriotism, out of a sense of duty toward his +people, and in order to put himself at the service of his country during +the hard times of distress. + +In judging the personality and character of the Defendant Funk, it is +also significant that he never held or tried to obtain any rank in the +Party. Other people who took over high State offices in the Third Reich +were given the title of an SS Gruppenführer, or were given, for +instance, the rank of SA Obergruppenführer. Funk, on the contrary, was +only a plain Party member, from 1931 until the end of the Third Reich, +who carried out his State functions conscientiously, but made no effort +to obtain any honors within the Party. + +The only incident with which the Defendant Funk was reproached in this +connection was the fact that he accepted an endowment in 1940, on his +fiftieth birthday. In itself, of course, that is not a punishable act; +but the Tribunal evidently evaluated it as a moral charge against the +defendant. Therefore, we shall briefly define our position with regard +to this. We remember how this endowment came about: The President and +Board of the Reich Chamber of Economics (Reichswirtschaftskammer), as +the highest representatives of German economic life, presented him on +his fiftieth birthday with a farmhouse in Upper Bavaria and about 110 +acres of ground. This farmhouse, of course, existed for the time being +only on the paper of the presentation document and had still to be +built. This presentation was expressly approved by the head of the +State, Adolf Hitler; therefore it was not made secretly to the Reich +Minister of Economics, but quite officially, without any suppression or +secrecy in the matter. + +The gift subsequently turned out to be an unfortunate one for Funk, as +the building proved much more expensive than had been expected and Funk +was required to pay a very high donation tax. Funk, who, up to that +time, had never incurred debts and whose finances had always been well +regulated, now found himself plunged into debt through this “gift” of a +farmhouse. Göring heard of it and came to Funk’s assistance with a +generous sum. When Hitler heard of Funk’s financial difficulties through +Minister Lammers, he had the cash necessary to settle Funk’s financial +troubles transferred to him in the form of a gift. With this Funk was +able to pay his taxes and his debts. He used the remainder to create two +public endowments, one for dependents of officials of the Reichsbank +killed in action, the other to the same end for the staff of the +Ministry of Economics. The farm was also to become an endowment at some +later date. Funk’s treatment of the matter shows his delicacy in this +respect too. Even though such an endowment could not be legally +disputed, he felt that it was better to avoid such endowments and to +make them over to the public, since he could not refuse to accept a gift +from the head of the State. + +Mr. President, I now turn to a new subject. I would propose to have a +recess now. + +THE PRESIDENT: The Court will adjourn now. + + [_A recess was taken until 1400 hours._] + + + + + _Afternoon Session_ + +THE PRESIDENT: The Tribunal proposes to go until 4 o’clock without a +break, if that is convenient. + +DR. SAUTER: Gentlemen of the Tribunal, I have so far defined the +position of the Defendant Funk in general statements; I am now going to +deal with the criminal responsibility of the Defendant Funk on the +separate charges made against him. + +The first point of the Indictment deals with the support of the seizure +of power by the Party, that is, the Defendant Funk’s Party activities +from 1931 up to the end of 1932. The Defendant Funk is alleged to have +helped the conspirators to seize power. This charge deals with the +activities of the Defendant Funk from the date of his joining the Party +in June 1931 up to the seizure of power on 30 January 1933. The +Prosecution maintains that Funk’s activities on behalf of the Party +during that period furthered the seizure of power by the National +Socialists. That is correct. The Defendant Funk himself, when +interrogated on 4 May, gave a detailed explanation of his reasons for +considering the National Socialist seizure of power the only possible +way of delivering the German people from the grave intellectual, +economic, and social distress of that time. The economic program of the +Party was, in his opinion, vague and mainly intended for propaganda. He +himself wanted to gain recognition for his own economic principles in +the Party, in order to work through the Party for the benefit of the +German people. Funk gave a detailed description of these principles +during his examination. They are based on the idea of private property, +which is inseparable from the conception of the varying capability of a +human being. + +Funk demanded the recognition of private initiative and of the +independence of the creative businessman, added to free competition and +the leveling of social extremes. He aimed at the elimination of Party +and class warfare, at a strong Government with full authority and +responsibility, and at the creation of a uniform political will among +the people. His conversations with Adolf Hitler and other Party leaders +convinced him that the Party entirely accepted his principles and ideas. +In Funk’s opinion he cannot be blamed for his support of the Party in +its struggle for power. Funk believes that the discussions in this Trial +furnish absolute proof that the Party came to power quite legally. But +even the methods used by Funk to assist the Party cannot, in his +opinion, be condemned. In any case the role attributed to him by the +Prosecution does not fit the facts. The importance of Funk’s activities +is at times greatly overestimated by them; in many other instances their +judgment of these activities is completely false. + +The evidence offered by the Prosecution consists mainly of references +and extracts from reference books, and especially from a book by Dr. +Oestreich, _Walter Funk—A Life for Economy_, which was submitted to the +Tribunal as Document Number 3505-PS, USA-653. The core of this evidence +is a “Program for Economic Reconstruction” by the Defendant Funk, which +is printed on Page 81 of this book and which the Prosecution calls “the +official Party declaration in the economic field” and “the economic +bible for the Party organization.” This so-called “Program for Economic +Reconstruction” forms the basis for the incorrect accusation made by the +Prosecution on Page 3 of the trial brief, to the effect that the +Defendant Funk assisted “in the formulation of the program which was +publicly proclaimed by the Nazi Party and by Hitler.” + +This “Program for Economic Reconstruction,” which was read word for word +during the hearing of the Defendant Funk, actually did not contain +anything unusual, let alone revolutionary, or anything which was in any +way characteristic of the National Socialist ideology. The program +indicates the need for providing work, creating productive credits +without inflationary consequences, balancing public finances, as well as +the need for protective measures for agriculture and urban real estate, +and a redirection of economic relations with foreign countries. It is a +program which, as Funk said in his testimony, might be advocated by any +liberal or democratic party and government. The Defendant Funk only +regrets that the Party did not fully subscribe to these principles. +Later on his economic viewpoint involved him in constant difficulties +and disputes with various Party offices, especially with the German +Labor Front and the Party Chancellery, and with Himmler and most of the +Gauleiter. This is also confirmed by the witness Landfried, who +described these differences between Funk and the Party in detail in his +interrogatory. Funk had the reputation in the Party of being mainly a +liberal and an outsider. During that time, that is mainly in 1932, he +established relations between Hitler and some of the leading +personalities of German economic life. He also worked to promote +understanding for National Socialist ideas and to gain support for the +Party by trade and industry. By virtue of these activities he was +frequently described as Hitler’s economic adviser. But that was not a +Party office or a Party title. + +In Document EC-440, USA-874, Funk states that Keppler, who was later +appointed State Secretary, was considered the Führer’s economic adviser +for many years before himself. By this reference Funk intended to show +that the designation “Economic Adviser to the Führer” was given by the +public to other persons also. + +The period during which Funk was given Party assignments was a very +short one. That these activities were never of decisive importance may +be deduced from the fact that after the assumption of power Funk’s Party +activities ceased completely. In other fields, such as food and +agriculture, finance, and so forth, the Party incumbents who entered the +civil service as ministers or state secretaries, _et cetera_, retained +their Party office, which usually acquired greater importance. The +elimination of the sole Defendant Funk from every Party office as soon +as the assumption of power was complete shows clearly that the Party +leaders did not attach much value to Funk’s work in the Party. + +In cross-examining the Defendant Funk the Soviet Russian Prosecution +showed him an article which had appeared on 18 August 1940 in the +magazine _Das Reich_ on the occasion of his fiftieth birthday +(USSR-450). In this article the author, an economist by the name of Dr. +Herle, emphasizes that Funk “as intermediary between the Party and +economic circles had become a pioneer working toward a new spiritual +attitude in German economic life.” + +In this connection we may say that Funk never denied that he regarded it +as his task to construct an economic system with an obligation toward +state and community on the one hand, yet based on private ownership and +private initiative and responsibility on the other. Funk always +acknowledged and adopted the political aims and ideals of National +Socialism. The majority of the German people embraced these goals and +ideologies, as was proved by several plebiscites. Funk himself did not +suspect that all the good intentions and idealistic aims, so often +emphasized by Hitler when he came into power, would later crumble in the +blood and smoke of war and sink to such an inconceivable inhuman level. +Funk testified explicitly that he considered the authoritative form of +government—by which he meant the strong state, a responsible cabinet, +the social community, and an economic system with social obligations—a +prerequisite in order to overcome the grave intellectual and economic +crisis through which the German people were then passing. He always +expressly acknowledged that politics must have precedence over +economics. + +On 30 January 1933, as Press Chief of the Reich Government, Funk took up +the State office of a Ministerial Director in the Reich Chancellery. Six +weeks later, however, the direction of press policy passed into the +hands of Dr. Goebbels, when the latter became Reich Minister for Public +Enlightenment and Propaganda; and the press department of the Reich +Government, which Funk was to have directed, was merged in the newly +established Ministry for Propaganda. For the time being he retained only +the right to make his press report personally to Reich President Von +Hindenburg and Reich Chancellor Adolf Hitler—until Hindenburg’s death. +Then this activity also came to a complete standstill, so that the +Office of Press Chief of the Reich Government existed only on paper. +This was also expressly confirmed by the Defendant Fritzsche during his +examination as a witness on 28 June. + +The guilt of the defendant is inferred mainly from the fact that he was +a State Secretary in the Ministry of Propaganda. The hearing of evidence +has shown, however, that as State Secretary, Funk had nothing whatsoever +to do with actual propaganda work. He made no radio speeches, nor did he +speak at public meetings. Press policy, on the other hand, was dictated +by Dr. Goebbels in person even at that time. + +Even at that time, however, Funk gave particular attention to the wishes +and complaints of the journalists. He protected the press against misuse +by official departments and made every effort to safeguard the +individuality of the press and to enable it to work in a responsible +manner. + +All this has been established by a number of witnesses to whom I refer +on Pages 17 to 24; in particular by the witnesses Amann, Kallus, +Fritzsche, Oeser, and Roesen. The two latter witnesses have indeed +confirmed the fact that Funk as State Secretary in the Ministry of +Propaganda also worked energetically on behalf of Jews and such persons +as were oppressed and hindered in their spiritual and artistic work by +the legislation and cultural policy of the National Socialists. Funk did +so much on behalf of such people that he jeopardized his own official +position to such an extent that the Ministry actually considered him +politically unreliable. + +[sm type begins]As to defendant’s activity in the Reich Ministry of +Propaganda, the Prosecution charges him as follows:[sm type ends] + + [sm type begins]“By means of such an activity in the Ministry of + Propaganda the Defendant Funk participated in establishing the + power of the conspirators over Germany, and is particularly + responsible for the persecution of ‘political dissenters’ and + Jews, for the psychological preparation of the people for war, + and for the weakening of the strength of and will for resistance + of the victims selected by the conspirators.”[sm type ends] + +[sm type begins]Also in this point of the accusation, the guilt of the +Defendant Funk has been derived almost exclusively from the fact that he +occupied the position of a state secretary in the Ministry of +Propaganda. The hearing of evidence, however, has shown that Funk had +nothing to do with actual propaganda activity in his position as State +Secretary. Funk did not deliver any speeches, either through the radio +or in public meetings. The press policy was directed by Dr. Goebbels in +person ever since the Ministry had been established. However, Funk took +care, to a large extent, of the wishes and complaints of the +journalists. He protected the press against trespassing by Government +offices and tried to secure for the press an individual look and an +activity conscious of its responsibilities. This is expressed by the +digest from the book written by Dr. Paul Oestreich: _Walter Funk—A Life +for Economy_, Document 3505-PS, Exhibit USA-653, Document Book Funk +Number 4b.[sm type ends] + +[sm type begins]Some of Funk’s wordings from that period of his activity +in the Ministry of Propaganda, as for example, the sentence “the press +is no barrel organ” and the saying “the press should not be the +scapegoat of the government” later have become all but household +words.[sm type ends] + +[sm type begins]As State Secretary Funk had, on the whole, only +organizational and economic tasks, he managed the financial side of the +activity of the numerous organizations and institutes which were +controlled by the Ministry of Propaganda, such as, particularly, the +Reich Broadcasting Company, further the German Trade Publicity Council +(Werberat der deutschen Wirtschaft), the State-owned film combines, the +State-owned theaters and orchestras and the State-owned press agencies +and newspapers. As to art, and according to his artistic tastes, he +occupied himself with music and theater. In the direction of the +Ministry of Propaganda, a complete separation between political tasks on +the one hand and organizational and economic tasks on the other hand +took place. This has been stated in unison by all witnesses examined on +this point. Minister Dr. Goebbels in person directed the propaganda +policy, exercising complete, absolute and exclusive control. His +assistants herein were, not his State Secretary Funk, but his old +collaborators from the propaganda organization of the Party, who, for +the most part, were taken over by him in a personal union into the newly +created Ministry of Propaganda. Funk, however, did not belong to the +propaganda department of the Party, neither before nor after the +Ministry was established. The assertion of Mr. Messersmith in his +affidavit, submitted under Document 1760-PS, according to which Goebbels +had incorporated Funk into the Party organization, is erroneous, and can +obviously be attributed to the fact that Messersmith had, as an +outsider, no insight into the division of work within the Ministry of +Propaganda, and moreover, apparently identified readily the propaganda +activity of the Party with the propaganda of the State Ministry. This +has been confirmed by the questionnaire submitted by Messersmith, as +asked for by the Defendant Funk, on May 7th, 1946, (Document Book Funk, +Supplement Number 5). This questionnaire shows that Messersmith cannot +even state whether he had a conversation with the Defendant Funk a few +times or only once; furthermore, that he does not remember any more what +topic was discussed at that time, nor in what capacity Funk was present +at this meeting. With such vague and unreliable statements of a witness +nothing, of course, can be proven.[sm type ends] + +[sm type begins]As a proof of the fact that Funk had nothing to do with +the actual propaganda activity and—as the Defendant Göring has asserted +here as a witness—did not play any important part at all in comparison +to Goebbels, I refer to the affidavit of the former Reichsleiter for the +press, Max Amann, of April 17th, 1946 (Document Book Funk, Exhibit 14). +At first, the Prosecution has submitted an affidavit sworn by this +witness, of December 19th, 1945 (Document 3501-PS); the statements +contained therein have been, in the new affidavit of April 17th, 1946, +supplemented and corrected in essential points. In this new statement, +submitted to the Prosecution and to the Defense, the witness Amann gives +evidence that also, according to his knowledge, Funk, as State Secretary +in the Ministry of Propaganda, had nothing to do with the actual +propaganda activity. For the rest, the witness confirms the statements +of the Defendant Funk, namely, that he (Amann) did not know in person +the distribution of activities and the interior management of the +Ministry, and that his statements are exclusively based op information +by other persons. The witness Heinz Kallus, on the other hand, worked +for some years as an official of the Ministry of Propaganda. Kallus, +too, confirms under oath in the answers, in the questionary addressed to +him (Exhibit Number Funk-18), that on the whole Funk was engaged in +administration and financial questions, and the same was testified by +the Defendant Hans Fritzsche during his examination as a witness before +this Tribunal on June 27th and 28th.[sm type ends] + +[sm type begins]In the trial brief of the Defendant Funk, Page +9—Document 3566-PS—the Prosecution submitted the notes of an +SS-Scharführer Sigismund as evidence for the importance of the position +which Funk is supposed to have held in the Ministry of Propaganda. An +official of this Ministry, by the name of Weinbrenner, is supposed to +have declared to that SS-Scharführer that it was impossible to know whom +Minister Goebbels would entrust with the office of radio superintendent, +as Goebbels took most of the important decisions only in agreement with +Under Secretary Funk. Now, Dr. Goebbels did not as a matter of course +undertake the appointment to the leading post in broadcasting without +getting in touch with Funk, the chairman of the administrative board of +the Reich Broadcasting Corporation (Reichsrundfunkgesellschaft); this, +however, does not prove anything concerning the nature and the +significance of the activity of the Defendant Funk nor of the aims he +pursued thereby. After all, the Prosecution has been able to submit but +one single document bearing the signature of Funk as Under Secretary, +namely, the fixing of a date for the coming into force of a decree for +the execution of a law concerning the Reichskulturkammer, of November +9th, 1933 (Document 3505-PS); hereof the Prosecution deduces a +responsibility or, at any rate, a co-responsibility of the Defendant +Funk for the entire legislation for the control and co-ordination of the +cultural professions (Kulturberufe).[sm type ends] + +[sm type begins]This conclusion appears to be wrong; quite apart from +the fact that the point in question is the fixing of a date for a decree +concerning execution, therefore a purely formal act, it must be +emphasized that this law was decided by the Reich Cabinet of which the +Defendant Funk at that time was not a member.[sm type ends] + +[sm type begins]Funk stated in his examination that, during the entire +duration of his activity in the Ministry of Propaganda, he hardly gave +his signature more than three times representing Dr. Goebbels. For the +rest, the Defendant Fritzsche testified here as a witness, on June 28th, +1946, that the position of Dr. Goebbels’ long-time collaborator and +personal advisor Hanke, who later on became Under Secretary and +Gauleiter, corresponded far more to the usual position of an under +secretary in the Ministry, than the one of the Defendant Funk. It was +Hanke, too, who maintained the liaison of Minister Goebbels with the +section heads and advisers of the Ministry, a task adhering otherwise to +the under secretary in a ministry, but which was never entrusted to the +Defendant Funk, although he was an under secretary.[sm type ends] + +[sm type begins]It is proven by the affidavit of the former +editor-in-chief of the _Frankfurter Zeitung_, Albert Oeser (Exhibit +Number Funk-1), and of the attorney-at-law Dr. Karl Roesen (Exhibit +Number Funk-2), as well as by the affidavits of the witness Heinz Kallus +(Document Funk-18), that the Defendant Funk, in his position as an under +secretary of the Ministry of Propaganda, energetically undertook to help +Jews and other persons who were oppressed and thwarted in their +intellectual or artistic activities by the National Socialist +legislation and cultural policy, and that he did this under heavy risks +to his own position.[sm type ends] + +[sm type begins]Among the persons for whom Funk interceded were not only +Jewish editors, but also many prominent German artists, and the witness +Kallus (cf. his questionnaire in the Document Funk-18) mentions in this +connection the Jewish proprietors of a big Berlin directory publishing +firm, whom Funk had given permission to carry on with their business, +against considerable resistance of the competent section of the Ministry +and of the German trade publicity council (Werberat der deutschen +Wirtschaft). The witness Kallus stated further, that, owing to this +attitude toward the Jewish cultural workers, Funk was “suspect” to Dr. +Goebbels and to the chief of the press section, Berndt, who was known to +be particularly radical. Editor-in-chief Oeser explicitly states, as a +witness, in his affidavit (Document Book Funk Number 1) that he has made +his statements voluntarily to prove the “human attitude” of the +Defendant Funk, and gives the names of eight Jewish editors of the +_Frankfurter Zeitung_, whom Funk had given permission to carry on with +their profession. In this connection, Oeser further remarks: “He (Funk) +herewith proved his human understanding. Indeed, I have never heard from +him (Funk), in the course of our conversations, any inhuman utterances. +Owing to his (Funk’s) concessions, the endangered people obtained, in +part repeatedly, the possibility to hope and to work anew with us and to +prepare, without loss of income, their change of profession and their +emigration.” Oeser, a well-known economic journalist, who always kept +completely aloof from the Party, explicitly states that Funk, without +any doubt, exposed himself by his attitude toward the Jews.[sm type +ends] + +[sm type begins]In the cross-examination of the Defendant Funk the +Prosecution referred to an affidavit, produced by the Prosecution, of an +editor called Franz Wolf; this witness expressed—Document 3954-PS, +Exhibit USA-377—the opinion that Funk may well have given those +exceptional permissions not out of human sentiments, but rather in order +to maintain the high standard of the _Frankfurter Zeitung_. By the way, +the author of the affidavit was actually one of the Jewish editors who +were given permission to further exercise their profession by Funk. The +assumption of the witness Wolf is in direct contradiction to the +positive statements of the witness Oeser. The Defendant Funk, too, +opposed this interpretation and has pointed out that at that time such +considerations were of no importance to him. In later years, when the +_Frankfurter Zeitung_ was to disappear, he had, so he said, used his +influence in order to insure the further publishing, out of material +considerations too, as this newspaper was, as an economic paper, highly +esteemed abroad and was the best commercial newspaper of the country. +However, this does not alter the fact that Funk had, at that time, used +his influence repeatedly and with success in favor of Oeser and his +collaborators, for purely humanitarian reasons.[sm type ends] + +[sm type begins]The witness Kallus finally declared in his questionnaire +(Page 3 of Document Funk-18) that he remembers several occasions where +Funk made possible the emigration of Jewish people under tolerable +conditions. Kallus confirms hereby the statements of the witness Luise +Funk (Document Book Funk, Exhibit Number 3), according to which the +Defendant Funk often received, in the years when he was Under Secretary +of State in the Ministry of Propaganda, letters of thanks from Jews who +had emigrated at that time from Germany and who thanked Funk for having +given them facilities for liquidating their businesses and for having +procured them permission to take along abroad considerable parts of +their fortunes.[sm type ends] + +[sm type begins]Evidence concerning this second part of the Indictment +has accordingly shown that Funk is guilty in the sense of this part of +the Indictment neither in his official capacity nor by his actions. He +has helped, as far as it was within his power, many Jews and many +individuals who were endangered and hindered in their cultural work, out +of their material and spiritual distress, although by doing so he +jeopardized his own position.[sm type ends] + +Now, Gentlemen of the Tribunal, I turn to another subject—the charge +appearing under Point 4 of my brief, Page 24 onward, namely, that he +participated in the preparation of wars of aggression; a point which is +dealt with by Figure 4 of the Indictment. The accusation against the +Defendant Funk is: “that with full knowledge of the aggressive plans of +the conspirators he participated in the planning and preparation for +such wars.” + +As evidence of this, the Indictment first of all points out that +Göring’s Ministry of Economics was brought under the Four Year Plan as +the “high command of the German war economy,” and was placed under +Funk’s command. The Indictment also states that according to the Law for +the Defense of the Reich of 4 September 1938 Funk, in his capacity as +Plenipotentiary for Economics, was explicitly charged with the +mobilization of German economy in case of war. + +The Prosecution’s assertion that the Reich Ministry of Economics was +brought under the Four Year Plan before it was handed over by Göring to +Funk is quite correct, but the so-called “high command of the German +economy” was not in the hands of the Reich Minister of Economics, Funk, +but entirely in those of the Delegate for the Four Year Plan—that is, +the Codefendant Göring. Göring has confirmed the fact that Funk was +obliged to follow his instructions. In addition, the most important +branches of production were managed—as we have already shown—by +special plenipotentiaries of the Four Year Plan, who were under the +control of Göring and received their instructions from Göring—not from +Funk. The Reich Ministry of Economics itself was merely the office which +carried out the directives of the Four Year Plan. The Defendant Funk has +testified that some offices were only formally under his supervision and +functioned in reality as autonomous institutions of the Four Year Plan. + +Funk’s position as Plenipotentiary for Economics was vigorously disputed +from the beginning. When the Defendant Funk was cross-examined, Document +EC-255 was submitted, a letter from the Reich War Minister, Von +Blomberg, to the Delegate for the Four Year Plan, Göring, dated 29 +November 1937, wherein Blomberg proposes that the Defendant Funk, who +had just then, on 27 November 1937, been appointed Reich Minister of +Economics, should also be appointed Plenipotentiary for War Economy. +This was not, however, done. + +Göring himself took over the Reich Ministry of Economics to begin with, +and only handed it over to the Defendant Funk in February 1938, 3 months +afterward. Then the High Command of the Armed Forces—more especially +the Army Economic Staff under General Thomas, whose name has been +mentioned repeatedly—requested that the Plenipotentiary for War Economy +should be bound in the future to follow the directives of the High +Command in all questions concerning supplies for the Armed Forces. In +this Document, EC-270, USA-840, the Economic Staff of the High Command +of the Armed Forces claims a right to direct the Plenipotentiary for War +Economy in nearly all his fields of activity. + +The Defendant Funk tried by means of a conversation with Reich Marshal +Göring and a letter to Reich Minister Dr. Lammers to clarify his +position as Plenipotentiary for War Economy, and as such claimed to be +placed under the direct command of Hitler and not bound to abide by the +directives of the High Command of the Armed Forces. Göring and Lammers +concurred with Funk’s opinion. It must, however, be emphasized most +strongly that this did not affect Funk’s subordination to Göring, for +all the other supreme Reich offices and ministers directly subordinate +to Hitler’s command were also bound by the directives of the Delegate +for the Four Year Plan, that is, by Göring’s directives. + +It is a remarkable fact that according to the Reich Defense Law of 4 +September 1938—the Second Reich Defense Law—the Defendant Funk did not +become Plenipotentiary for War Economy, but Plenipotentiary for +Economics, without the word “War,” and that this act explicitly stated +that Funk was bound to comply with the demands of the OKW. The OKW, +therefore, won its battle against Funk in the end. + +But the individual economic departments, which according to the Reich +Defense Law were under the direction of the Plenipotentiary for +Economics for his special assignments, were equally unwilling to +recognize him. In an interrogatory by the former State Secretary Dr. +Hans Posse, Funk’s deputy as Plenipotentiary for Economics (Document +3819-PS, USA-843) which was produced during the cross-examination of the +Defendant Funk, Posse states that the Plenipotentiary for Economics +“never really exercised any function.” The ministers and state +secretaries of the individual economic departments of finance, +agriculture, transport, _et cetera_, did not, according to Posse, wish +to be placed under Funk’s control, and even protested against it. Posse +also mentions the disputes which Funk had with the Four Year Plan. He +calls these conflicts “the struggle for power,” which in this connection +simply means the authority to make decisions concerning the other +economic departments. This was not a dispute between Göring and Funk; +that is untrue because obviously Funk as Plenipotentiary for the +Economics was still subordinate to Göring. Actually, this was a quarrel +among state secretaries. The individual economic departments declared +that they were subordinate to the Delegate for the Four Year Plan and +refused to recognize the right of the Plenipotentiary for Economics to +give them directives, since Funk himself was under the direction of the +Four Year Plan. The state secretaries of the Four Year Plan supported +the departments in their interpretation, and this lack of clarity and +the overlapping of competencies caused the authority to issue directives +to pass formally from the hands of the Delegate of the Four Year Plan a +few months after the outbreak of the war. + +Questioned by the Prosecution as to whether he had been in the habit of +discussing important matters with Funk, the above-mentioned State +Secretary Posse replied: “Yes; but these discussions did not produce +results.” Posse confirms that the authority given to Göring was much +more extensive and that Göring finally dissolved the office of the +Plenipotentiary for Economics. According to Funk this happened as early +as December 1939, a few months after the outbreak of the war. Funk +retained only the formal right to issue decrees. This has also been +confirmed by Lammers. Therefore, the Codefendant Göring’s statement that +he was also of the opinion that Funk’s position as Plenipotentiary for +Economics could be described as having existed only on paper is quite +correct. + +[sm type begins]Naturally the office of the Plenipotentiary for +Economics worked in continuous business relations with the other +economic departments, with the Four Year Plan, with the staff of the +department for defense economics of the German Supreme Command, and with +the Plenipotentiary for Administration, that is to say, the Reich +Minister of the Interior. As proof the Prosecution presented various +documents showing that at the meetings of the Deputy Plenipotentiary for +Economics and his staff, questions of finance, war production, labor, +and others were discussed. In this connection the office of the +Plenipotentiary once also treated the question of employing prisoners of +war in the industry, but this was an entirely theoretical discussion +(Document Number EC-488, USA Exhibit Number 842).[sm type ends] + +[sm type begins]Why this General Staff economy work, which had to be +done in times of peace for the eventuality of war, should be +incriminating for the Defendant Funk is not clear. Besides, until August +1939 he personally did not take any interest in the details of these +questions. All this work of the Plenipotentiary for Economics consisted +of general preparations in case of war and did not apply to any special +war. However, when Funk’s proposition for changing over from peacetime +to wartime economy was worked out in co-operation with the other +economic departments in August 1939, the danger of war with Poland was +already pressing.[sm type ends] + +Nowhere in the material presented by the Prosecution is there a single +indication of the fact that the Defendant Funk knew anything about +military and political conversations and preparations which had as their +object the planning of war—in particular, a war of aggression to be +waged by Germany. Funk was never invited to take part in any +conversations of this kind. He was, in particular, not present at the +well-known discussion with Göring on 14 October 1938, which was treated +exhaustively by the Prosecution on Page 24 of the trial brief. According +to the Prosecution, Göring during that meeting referred to an order +issued by Hitler for an unusual increase in armaments, especially +weapons of attack. The Prosecutor declared during the session of 11 +January 1946 that at that meeting Göring addressed words to Funk which +were described as “the words of a man already at war.” Several documents +included in the Funk document book and submitted to the Tribunal prove, +however, beyond doubt that the Defendant Funk did not attend that +meeting at all, as he was in Sofia at the time in order to conduct +economic negotiations with Bulgaria. This exhibit, which the Prosecution +obviously intended to use as a main exhibit, is thereby invalidated. On +25 August 1939, the date of Funk’s letter to Hitler to which I referred +this morning, the German and Polish armies were already completely +mobilized and stood face to face with each other. He was, therefore, +compelled to act in that particular manner, and by that time he was no +longer able to cancel any of the preparations. All this is corroborated +by the diary kept by the witness Kallus and submitted in the Funk +document book under Number 18. The Defendant Funk stated here on the +witness stand: + + “It was naturally my duty as Plenipotentiary for Economics to do + all I could to prevent the civilian section of the economy from + being shattered in the event of war, and it was also my duty as + president of the Reichsbank to increase as much as possible the + Reichsbank’s reserves of gold and foreign currency.” + +He goes on to say: + + “That was necessary on account of the general political tension + at the time, and it was also necessary in case no war would come + about but only economic sanctions which, in view of the + political situation at the time, one could and must expect.” + +Funk likewise says: + + “It was also my duty as Reich Minister of Economics to increase + production.” + +That is an exact quotation from the Defendant Funk’s testimony. On this +subject the witness Puhl, who was vice president of the Reichsbank, +states in his interrogatory of 1 May, which is in the hands of the +Tribunal, that the position of the Reichsbank in the last 7 months of +Funk’s presidency before the outbreak of the war had not been materially +strengthened, and that very little business had been done in the +exchange of foreign assets for gold since January 1939. The Reichsbank’s +cautious policy in regard to gold and foreign currency, according to +this witness, was in line with its customary practice. + +Puhl’s statement is important for the correct understanding of the +reference made by Funk, in his letter to Hitler of 25 August 1939, to +the conversion of foreign assets into gold. During the period of Funk’s +presidency of the Reichsbank the transactions to which he alludes were +no longer of any importance. The exaggerated phrases used by Funk in his +letter to Hitler make the contents appear much more important than they +actually were. + +Funk explained this fact during his examination by saying that this +letter was a private letter of thanks, that in those days every German +was under a very great strain owing to the tense political events +throughout Europe, and that he wanted to inform his Chancellor at this +moment when the country was in danger of war, that he, Funk, had also +done his duty. This was the first and only occasion on which Funk +actively exercised his functions as Plenipotentiary for Economics. + +Here I must insert something which is based upon some minutes which the +Prosecution did not submit until the hearing of evidence had been +concluded; Document 3787-PS. These are the minutes of the second meeting +of the Reich Defense Council held on 23 June 1939. Funk, as +Plenipotentiary for Economics, attended that meeting of the Reich +Defense Council, which took place about 2 months before the beginning of +the war. The text of the minutes, however, leaves no doubt whatever that +they concern general, and therefore mainly theoretical, preparations for +any war. Furthermore, to appreciate this document it must be remembered +that during the war which broke out 3 months later the whole of the +Defendant Funk’s assignments in connection with the distribution of +labor was transferred to the Four Year Plan, since the main functions of +the Plenipotentiary for Economics were formally and completely +abolished, as I have previously shown, shortly after the outbreak of +war. + +To continue with my brief—the Defendant Funk has explained in detail +during his examination that up to the very end he did not believe that +war would come, but that on the contrary he thought that the Polish +conflict would be settled by diplomatic means. The accuracy of this +statement is also confirmed by the witnesses Landfried, Posse, and Puhl, +the defendant’s three closest co-workers, in interrogatories submitted +to the Court (Exhibit Numbers Funk-16 and 17 and Document 3849-PS). The +danger of war with Russia came to Funk’s knowledge for the first time +when he heard of Rosenberg’s appointment as plenipotentiary for the +unified treatment of eastern European problems in April 1941. We +remember that at that time Lammers and Rosenberg gave the Defendant Funk +the same explanations, generally speaking, as those stated to the +Tribunal here by all the witnesses heard on this question. He was told +that the reason for the preparations for war against Soviet Russia was +that the Soviet Russians were massing considerable forces along the +entire border, that they had invaded Bessarabia, and that Molotov, in +his discussions on the subject of the Baltic Sea and the Balkans, had +made demands which Germany could not fulfill. As Rosenberg stated that +the assignment given him by Hitler also included economic measures, Funk +placed a ministerial director, Dr. Schlotterer, at Rosenberg’s disposal +as liaison official. Schlotterer later took over the direction of the +economic section of the Rosenberg Ministry and joined the Economic +Operations Staff East of the Four Year Plan. The Ministry for Economics +itself and Funk had practically nothing to do with economic questions in +the occupied East and concerned themselves merely with questions bearing +on German internal economy. The Ministry for Economics had no authority +whatever to make decisions in the Occupied Eastern Territories. During +his cross-examination the Defendant Funk was shown an extract from an +interrogation of 19 October 1945, dealing with the subject “Preparations +for War against Russia” (Document Number 3952-PS, USA-875). In this +interrogation Funk stated that the Defendant Hess asked him at the end +of April 1941 whether he, Funk, had heard anything about an impending +war against Russia. Funk replied: “I have not heard anything definite, +but there seems to be some discussion along that line.” + +The explanation of this conversation at the end of April 1941 between +two men who were not informed of the facts may well be that at that time +Funk did not yet definitely know the reason for Rosenberg’s assignment, +but knew only of suspicions and rumors. + +On 28 May 1941 Rosenberg had a meeting with Funk (Document 1031-PS). In +this meeting, as you may recall, they discussed the question of how the +monetary problem in the East might be regulated in the event of war +against Russia and the occupation of those territories by German forces. +Gentlemen, in my opinion it is quite natural that in view of an +impending war, even a war of defense, the authorities responsible for +money matters should discuss the question of the handling of these +matters in case enemy territory should be occupied. Funk was opposed to +any solution likely to give rise to speculation; and he described the +suggested rate of exchange for marks and rubles as entirely arbitrary. +He agreed with Rosenberg that the Russian territory should have its own +national currency as soon as conditions permitted. For the rest he +demanded further investigation of these problems, especially since the +matter could not be decided in advance. + +Here too, therefore, Funk approached matters with his characteristic +caution and endeavored to find a solution which would create stable +conditions from the very start. If the necessity for printing ruble +bills to meet the most urgent demands for currency was mentioned in the +discussion with Rosenberg—though not by Funk—Funk did not see anything +either unusual or criminal therein. If the currency of a country has +been depleted, it is absolutely necessary for fresh money to be provided +by the power responsible for maintaining a stable monetary system. Who +made the banknotes was of no importance to Funk; the essential point for +him was by whom the banknotes were issued and in what quantity. +Moreover, the production of a new banknote requires months of +preparation, so that the execution of such a plan—which, as I said, was +in any case not Funk’s—could not have taken place until much later. + +A few weeks after this discussion the war actually broke out. Funk knew +that there was danger of war with Russia. That Germany had long been +preparing for such a war was however as little known to him as the fact +that Germany would attack and thus wage a preventive war. Funk was +informed neither of the march into Austria nor of the negotiations in +regard to the Sudetenland—in September and October 1938 he was not even +in Germany—nor was he informed of the seizure of the remainder of +Czechoslovakia. In the case of Poland, he knew that the conflict was +acute, but nothing more; of Russia the same thing was true. But in both +cases he was informed even of this only a short time before the actual +outbreak of war. As far as wars with other countries were concerned, +Funk received no information whatsoever before the opening of +hostilities; he was only informed afterward. + +All the facts I have mentioned form a clear indication that Funk knew +nothing of Hitler’s intentions with regard to foreign policy, and that +he had no knowledge whatsoever of the fact that Hitler was planning wars +of aggression. In the summer of 1939 Funk certainly devoted particular +attention to the conversion of German economy from a peacetime to a +wartime basis. But as an official of the Reich, Funk considered it to be +not only his right but also his duty to prepare the German people for a +defensive war and to take the necessary economic measures. + +However, the Prosecution believes that it can eliminate all these doubts +by describing the Reichsregierung or the National Socialist Party as a +criminal organization which conspired against other nations, and whose +sole task was to plan and wage wars of aggression, to subjugate and +enslave foreign nations, and to plunder and Germanize other countries. +This deduction is erroneous, since those plans were devised and executed +only by Hitler himself and a few of the men closest to him, of the type +of Goebbels, Himmler, and Bormann. According to the evidence we have +heard, there can be no doubt that even the highest officials of the +State and the Armed Forces—and in particular Funk—were not informed of +these plans, but that these plans were concealed from them by a cunning +system of secrecy. + +Any comparison with the secret societies mentioned by the Prosecution, +which in other countries banded together in criminal organizations, as +for example the Ku Klux Klan in America, is impossible for a further +reason. The Ku Klux Klan was organized from the start as a secret +society for the purpose of terrorizing and committing crimes. In 1871, +after scarcely 6 years of existence, it was expressly forbidden by the +North American Government through a special law, known as the Ku Klux +Klan Act. At that time the Government even imposed martial law on it and +fought it with every possible means. It was an organization with which +the Government and Congress of the United States never had any dealings. +A man like Funk would, of course, never have joined a secret society, a +criminal organization against which the Government was fighting. +However, the National Socialist Party in Germany was never a secret +organization, but was a party recognized by the Government and +considered lawful. The unity between this Party and the State was even +declared in a special Reich law. Since 1934 the leader of this Party was +at the same time the elected head of the Reich, and this head of the +State and his Government have been constantly and officially recognized +as a government by the entire world from 1933 on. It was due precisely +to this international recognition of Hitler by every foreign country—a +recognition which continued to be extended in part even during the +second World War—that Funk and millions of other Germans never doubted +the legality of the Government and that such doubts, if they ever +entered their minds, were immediately dispelled. Millions of German +officials and German soldiers assumed, just as Funk did, that they were +only doing their duty in not withholding from the head of the State the +recognition accorded to him by every country in the world. + +[sm type begins]The foreign countries, their statesmen as well as their +general staffs, the press as well as the intelligence service of other +countries, were certainly better informed about the German situation and +also about the true aims of German politics than the German citizen who +had no access to foreign newspapers, who was not permitted to listen to +foreign radio stations if he did not want to land in jail or on the +scaffold, who for years lived as isolated as in jail and could not even +trust his neighbors and friends—not even his relatives—and dared not +talk things over with anybody. Even ministers knew no more about +Hitler’s true plans than any other fellow citizen and even of major +State affairs they mostly learned only afterward through the newspapers +or the radio. Who could have ever conceived the thought that foreign +states would maintain diplomatic relations with a criminal organization +and that official persons of foreign countries should recognize and call +upon a man in whom they saw the head of a band of conspirators?[sm type +ends] + +As already mentioned, Funk has never denied that in his plans and +directives he naturally took into account the possibility of wars which +might some day have to be waged by Germany, just as it is part of the +duty of every general staff in the world to take such possibilities into +consideration. At that time Funk had every reason to do so in his +capacity as Minister of Economics and Reichsbank president; for the +world situation since the first World War had been so tense, and the +conflicting interests of individual nations had frequently appeared +insurmountable to such a degree that, unless he wanted to be accused of +neglecting or betraying the interests of his own people, every statesman +had to make the preparations necessary for waging war. A preliminary +activity of this kind is, therefore, not in itself of criminal +significance; and Funk has no doubt that during those years the +ministers of economics and bank presidents of other countries also +made—and had to make—similar preparations for the event of war. In the +case of Funk it is of no importance whether or not he for his part +ordered such preparations, but only whether or not he knew that Hitler +was planning aggressive wars and intended to wage such aggressive wars +in violation of existing treaties and in disregard of international law. + +But Funk, as he declared under oath, did not know this, nor did he act +on this premise. Hitler’s constant affirmations of peace prevented such +a possibility from entering his mind. Today, of course, we know on the +basis of the actual events that followed and on the basis of the facts +established by these proceedings, that those peace assertions of +Hitler’s, which were still on his lips when he committed suicide, were +in reality only lies and deception. But at that time Funk regarded +Hitler’s protestations in favor of peace as perfectly genuine. It never +occurred to him at that time that he himself and the whole German nation +could be deceived by Hitler; he believed Hitler’s words just as did the +entire world, and thus he was the victim of that deception just as was +the entire world. If no blame attaches to foreign statesmen and generals +who believed Hitler’s protestations, although they certainly were better +informed on Germany’s rearmament than was Funk, the faith which he +himself had in the head of the State cannot be called a crime. + +Gentlemen of the Tribunal, I have now examined the Prosecution’s +accusation that Funk had planned wars of aggression; and I turn to +another point of the Indictment, which concerns Funk’s activities in the +occupied territories and the charge of forced labor. + +The Prosecution offered very little evidence against Funk on the subject +of forced labor or the slave-labor program. In the main he is held +responsible for the compulsory employment of foreign workers on the +grounds that he was a member of the Central Planning Board from autumn +1943 on. The first session of the Central Planning Board at which he was +present took place on 22 November 1943, that is to say, at an advanced +stage of the war, and after that he very rarely attended meetings. The +Defendant Speer testified to this, and it is also evident from the +minutes of the Board, which were very carefully kept. And I should like +to emphasize the fact that Funk never had anything to do with the +employment of labor either in his capacity as Minister of Economics or +as president of the Reichsbank. He was on principle opposed to taking in +too many workers from the occupied territories, especially by force, +because this interfered with the economic and the social life of these +territories. The Codefendant Sauckel and the witnesses Landfried and +Hayler have confirmed this, and it is also shown by the remarks made by +Funk himself at the meeting held in Lammers’ office on 11 July 1944 +(Document 3819-PS), which was frequently quoted in Court. Here, for +instance, Funk expressed disapproval of ruthless raids to recruit +foreign workers. + +If Funk sent representatives to the Central Planning Board, he did so +only to insure that the necessary raw materials were allocated to the +industries engaged in manufacturing consumer’s goods and goods for +export, but never to deal with questions of foreign labor, in which he +was not at all interested. Although the Prosecution, in cross-examining +the witness Hayler, on 7 May 1946, confronted him with a statement by +Funk during the preliminary interrogation of 22 October 1945, Document +Number 3544-PS, to the effect that he had “not racked his brain” over +these labor problems, it must also be stated on the part of the Defense +that in the next sentence of these minutes—in the same breath, so to +speak—Funk declared that he had always done his utmost to prevent +workers being taken away from their homeland, in this case France. This +second sentence, although not quoted by the Prosecution, seems to be of +special importance because it clearly reveals Funk’s disapproval of the +compulsory measures used in connection with the utilization of foreign +labor. The Defendant Speer, however, testified before the Tribunal on 20 +June that the Central Planning Board made no plans at all for the +utilization of labor. Only occasional discussions on questions +concerning the utilization of labor took place here. The records +containing the actual results of the negotiations and decisions of the +Central Planning Board have not been introduced by the Prosecution. It +has been shown that Funk, who attended only a few of the meetings of the +Central Planning Board, never received the full notes but only the +minutes, which revealed nothing. Before Speer was responsible for +decisions on war production, and before Sauckel became Plenipotentiary +General for the Allocation of Labor—that is, before 1942—the question +of recruiting labor for production was dealt with by the Four Year Plan, +that is, by Göring and not by Funk. Later on applications for workers +required, as Speer has testified, were usually made by the industries +directly to the offices controlling the allocation of labor. While Funk +was still in charge of production in the Reich Ministry for Economics +and working in accordance with the directives of the Four Year Plan, +questions concerning the allocation of labor were not dealt with by the +Reich Ministry for Economics at all, but by the Plenipotentiary General +appointed under the Four Year Plan for the various branches of +industry—that is, by Göring—by means of direct negotiation with the +Plenipotentiary General for the Allocation of Labor. Speer clarified +this in connection with Document Sauckel Number 12. He also clarified +the fact that several branches of industry, such as overground and +underground construction not falling within the competency of the Reich +Minister of Economics, were cited in this document as belonging to it. + +[sm type begins]Some other items had been rectified previously already +by Sauckel’s defense counsel. The various economic offices +(Wirtschaftsämter) likewise did not request manpower from the Reich +Ministry of Economics. They were, however, not offices of the Reich +Ministry of Economics, but were incorporated in the so-called +intermediate instance, that is, in the provincial authorities, or in the +Gauleitungen.[sm type ends] + +[sm type begins]An important point in this connection is the +establishment of the fact that up to 1943, that is, up to the time in +which Funk was at all competent in questions of production, foreign +workers came to Germany through recruitment solely upon the basis of a +voluntary decision. With respect to this, I refer to the decree of the +Reich Minister for Labor promulgated on 30 July 1940, presented in +Funk’s book of documents under Number 12, in which the conformity with +obligations internationally agreed upon is specifically pointed out.[sm +type ends] + +Finally it must be stated that Funk, at the time when he joined the +Central Planning Board, no longer had any production assignments and +could therefore no longer claim workers, so that in consequence he had +no further interest in this aspect of the Central Planning Board’s +activities. + +[sm type begins]Regarding Funk’s attitude toward the economy of occupied +territory, and measures taken by him to insure the maintenance of +orderly economic conditions and especially of stable conditions of +currency, I refer to the questionnaires Landfried (Exhibit Number +Funk-16) and Puhl (Exhibit Number Funk-17), as well as to testimony of +the witnesses Hayler, Neubacher, and Seyss-Inquart. I will refer only to +Document 2263-PS, introduced by the Prosecution during cross-examination +of the Defendant Funk, a letter from the Under Secretary of the Ministry +of Economics to the Armed Forces High Command of 6 June 1942, in which +the transfer of 100 million Reichsmark from occupation money is +requested for purchases by Roges Raw Material Incorporated +(Rohstoffhandelsgesellschaft) on the black market in France.[sm type +ends] + +[sm type begins]Here we deal with the purchases in occupied territories +mentioned before, resulting from instructions by the Four Year Plan. +These, however, represent exactly those purchases against which Funk +protested. His protests finally culminated in the decision of the +Delegate for the Four Year Plan (Göring) to prohibit any such further +purchases. As is known, Funk personally had no authority to issue +instructions for the occupied territories. Moreover such controlled +purchases by authorities must be looked upon in a different light from +the uncontrolled purchases of the various State, Party, and Armed Forces +agencies, against which Funk fought time and again (Questionnaire +Landfried, Document Book Number Funk-16).[sm type ends] + +Summarily it must be said that the evidence submitted has proved beyond +doubt that the Defendant Funk took a great many measures to prevent the +exploitation of occupied territories and that the fact that he succeeded +in preventing the devaluation of currency in occupied countries was in +itself enough to protect them from suffering damage to an extent which +cannot be evaluated in detail. + +With that, Gentlemen of the Tribunal, I leave this point of the +Indictment against Funk and turn to a further charge against him, +namely, his participation in the elimination of Jews from economic life +in November and December 1938, which forms Point 3 of the Indictment +against him. + +Gentlemen, the charges which the Prosecution has made against Funk +contain many details with which, in view of the time at my disposal, I +am unable to deal fully. With regard to such details I shall refer to +statements made by Funk himself in this connection. First of all, +however, I must deal more fully with what seems to me the most important +of all the charges made against Funk, namely, that of playing a part in +the persecution of the Jews. The Defendant Funk considers this to be the +most important factor in his trial. + +Gentlemen, no one in Germany has ever asserted that Funk was one of +those fanatical anti-Semites who took part in the pogroms against the +Jews or who approved of these proceedings and profited by them; Funk +always condemned such actions. This can be explained not only by his +natural disposition and the environment in which he grew up, but also by +his years of work as a journalist, mainly in connection with that +section of the press which dealt with economic policy and consequently +kept him in continuous touch with the Jewish circles of importance to +economic life. Experts in that field know, and still have respect for, +Funk who even at that time showed an attitude that was free of all +anti-Semitism, and friendly toward the Jews rather than hostile. + +It is tragic to a certain extent that in spite of this the name Funk, of +all names, has been repeatedly connected in this Trial with the decree +of November 1933, as a result of which the Jews were eliminated from +economic life. Whether he liked it or not, all questions concerning the +treatment of Jews in the economic life of Germany were under the +jurisdiction of his department as Minister for Economics. As an official +it was his duty to issue the necessary executive instructions. + +This was certainly particularly difficult for Funk, in view of his +tolerant attitude. At that time he had already been a civil servant of +the Reich Propaganda Ministry and the Ministry for Economics for 8 +years, and yet, during all that time, the Prosecution could not cite a +single instance of any display of anti-Semitism on Funk’s part or any +evidence of his having urged or approved of the use of force, terrorism, +or injustice against the Jews. On the contrary, we know from the +statements of various witnesses that Funk repeatedly interceded for his +Jewish fellow citizens in the course of these years; that he looked +after them and tried in their interests to alleviate hardships, to +prevent encroachments on their rights, and to spare the lives and +careers of human beings, even if they were Jews or political opponents +of his own. + +It is, therefore, not surprising that this man, with his wide experience +in the economic field, this man of far-reaching knowledge, with his +frankly tolerant views, was most painfully affected when on 10 November +1938 he had to witness the destruction of Jewish homes and shops in +Berlin, and when he received one report after another confirming the +fact that Goebbels and his clique, exploiting the indignation of the +populace over the assassination of a German by a Jew, were organizing +such pogroms throughout Germany, and that these outrages were leading +not only to the destruction of Jewish property, but also to the murder +of many Jews and to the persecution of many thousands of innocent +citizens. + +The affidavit of this assistant, Ministerialrat Kallus (Document Book +Number Funk-15) of 9 December 1945, and that of Frau Luise Funk of 5 +November 1945 (Funk Document Book Number 3), prove clearly that Funk +condemned such excesses most severely, that he was incensed to the +extent of calling them filthy outrages even when addressing Dr. Goebbels +himself, and that he threatened to resign in the event of a repetition. +Even at that time he told the mighty Goebbels to his face that one +should be ashamed of being a German. + +All this, Gentlemen, expressed the justified indignation of a man who +for years had made every effort to insure moderation toward Jews and +political opponents and had received many a letter of gratitude for so +doing—a man who had fought for years to prevent terrorism, to secure +for all his fellow citizens the rights to which they were entitled, and +to raise the standard of German economic life—and who now saw all his +efforts frustrated in a single night by the brutal fanaticism of a Dr. +Goebbels. + +Funk himself, during his interrogation, gave us a vivid description of +how, ever since he entered office as Minister of Economics in February +1938, he had been subjected to continuous pressure by Goebbels and Dr. +Ley to eliminate the Jews from the economic life of the country in the +same way as they had been eliminated in 1933 from its cultural life. + +The witness Dr. Hayler stated here that Himmler also found fault with +Funk for this. Funk himself testified to the difficulties which again +and again occurred during those years with workers stirred up by +propaganda, who were sometimes no longer willing to work under Jewish +managers, or did not dare to do so; and how, in these oppressive +conditions, numerous Jewish owners sold their businesses—frequently at +cut prices—to people who seemed to Funk as the Minister of Economics +entirely unfit to acquire or manage such businesses. Funk tried again +and again to stem this overwhelming development. He made continual +efforts to put a brake on this process of Aryanization; to provide for a +reasonable and just settlement for Jewish owners of businesses; and to +allow them to emigrate from Germany with their property. But Funk +realized more and more clearly every day that he was too weak to stop +this movement and that the radical elements around Dr. Goebbels and Dr. +Ley were gaining the upper hand, in which they were unfortunately able +to rely on Hitler’s authority. Hitler had allowed himself in the course +of time to be won over more and more to the policy of radical treatment +of the Jewish question by a few irresponsible advisers who are not +sitting in the dock today. + +The events of 9 November 1938 burst like a bombshell into this fight +between Funk and other considerate people on the one side, and Goebbels +and Ley on the other. As Dr. Goebbels himself admitted later to +Fritzsche, they were aimed directly at the person of the Defendant Funk, +who was thus to be confronted with a _fait accompli_. As the witness +Landfried testified, Dr. Goebbels did in fact attain his ends through +this operation of November 1938. Goebbels was able to refer later to +Hitler’s own order for the Jews to be completely excluded from the +economic life of Germany, although Funk, as the minister concerned, +repeatedly made allusion to the relations with foreign countries upon +which the German Reich and its economy depended. + +The orders necessary to carry out this program were given by Göring in +his capacity of Delegate for the Four Year Plan, on the direct orders of +Hitler. Funk never had any doubt that in this particular affair Göring +also was to a certain degree only a puppet, because he had always known +Göring to be a man who condemned extreme radicalism in this particular +question of the Jews. Funk’s views on this point were shared by wide +circles of the German people, and the fateful Göring meeting of 12 +November 1938 (Document 1816-PS) proved this to be correct. This +document has been mentioned here repeatedly. At a meeting which preceded +that of 12 November 1938, Göring sharply condemned the acts of terrorism +which had occurred and declared to the Gauleiter present that he would +make every Gauleiter personally responsible for acts of violence +committed in his district. But what was the good of that? + +In the course of the second meeting, the minutes of which were submitted +to the Tribunal under Number 1816-PS, Goebbels ultimately succeeded in +imposing his radical demands; and the course taken by this meeting +forced Funk to admit that the complete elimination of the Jews from +German economic life could no longer be delayed for the simple reason +that the circles in power had become far too fanatical. It became +evident to Funk that legislative measures were necessary if the Jews +were to be protected from further acts of terrorism, looting, and +violence and if they were to get any reasonable compensation. During the +Göring meeting of 12 November 1938, Funk repeatedly expressed his views +again, as is shown by the records. It was due to the efforts made by the +Defendant Funk, with the support of Göring, that Jewish businesses were +reopened for the time being, that the whole procedure was taken out of +the hands of the arbitrary local agencies and put on a legal basis +throughout Germany, and finally that in order to gain time in which to +carry out this action a definite date was set for its completion. Anyone +who reads carefully the minutes of the Göring meeting of 12 November +1938 will, in spite of their incorrect and incomplete formulation, be +able to find definite and repeated indications of Funk’s moderating +influence; namely, his insistence—repeatedly mentioned in the +minutes—on the reopening of Jewish stores, his proposal that the Jews +be allowed to retain at least their securities, and finally his attitude +to Heydrich’s demand that the Jews be placed in ghettos. The minutes of +12 November 1938 prove beyond doubt that it was Funk who opposed +Heydrich’s proposal by saying: “We don’t need ghettos. Surely the Jews +could move closer together among themselves. The existence of 3 million +Jewish people among no less than 70 million Germans can be regulated +without ghettos.” This is a literal quotation. + +Funk therefore wanted to save the Jews at least from being interned in +ghettos. It must be admitted that at that time Funk did not entirely +succeed in securing recognition for his point of view, so that the +proposal that the Jews should be allowed to retain their securities, for +instance, was turned down, although Funk pointed out, as the minutes +show, that to realize the Jewish securities would suddenly flood the +German stock market with securities to the value of 500 million +Reichsmark and would, therefore, have serious consequences for the +German stock market. The decisive question in judging the Defendant Funk +is not so much his success as the fact that he made an obvious effort to +save for the Jews all that could be saved in the circumstances; and we +must not lose sight of the fact that in all those measures Funk acted +only in his capacity as Minister of Economics, that is, as an official +who merely gave the order to execute a command which Göring as Delegate +of the Four Year Plan had issued on the orders of Hitler. Funk found +himself in exactly the same position of constraint, as, for example, the +Reich Minister of Finance, Graf Schwerin von Krosigk, who at that time +had to order the punitive levy of 1,000 million Reichsmark to be paid by +the Jews, or the Reich Minister of Justice and the Reich Minister of the +Interior, both of whom issued similar executive instructions in their +respective spheres. The Tribunal must decide the difficult legal +question of whether a state official whose government has been legally +recognized by all the governments of the world is liable to legal +punishment for putting into effect a law—and I emphasize the word +“law”—passed in accordance with the legislative system of this state. +This legal problem is entirely different from the other question, dealt +with in the Charter and by the Prosecution, as to whether or not the +fact that an official order was given by a superior can serve as an +excuse. I might add here that I shall not discuss this legal question +because I shall leave it to the other members of the Defense. I shall +discuss only whether an official who puts into effect a law passed by +the internationally recognized government of his country thereby becomes +liable to punishment. That is an entirely different problem from the one +dealt with by the Charter. + +Gentlemen, since this has not been dealt with before, I have to state +the following; I read at the bottom of Page 50: Our natural sense of +justice fully approves that a citizen, an official, or even a soldier, +cannot defend himself by reference to the official order given him by +his superior if this order obviously implies an illegal act, and +especially a crime; and if in the existing circumstances and in due +consideration of all the accompanying facts, the subordinate realizes, +or should realize, that the official order is contrary to the law. + +If the latter condition exists, in other words, if the official order +obviously constitutes a breach of the law, it may in general be fully +approved that the subordinate is not accorded the right to refer to his +superior’s official order as an excuse and to maintain that he was only +carrying out that order. In that respect this stipulation of the Charter +contains nothing essentially new, but only the confirmation and further +development of legal principles which are recognized to a varying extent +in the penal codes of most civilized nations today. A certain amount of +precaution, however, seems to be indicated in this matter, for it should +not be forgotten, on the other hand, that obedience to the orders of a +superior—not obedience to the law, but to a superior—is, and must in +future remain the foundation of every government in all nations if the +orderly functioning of the state administrative apparatus is to be +secured; and that it would be dangerous for the civil servant to decide +for himself whether to keep his oath of allegiance. + +But, Gentlemen, in our case something different is involved: We are +dealing here with the obedience of the citizen and especially of the +civil servant, such as Funk was at that time, to a national law, which +was legally promulgated in accordance with the constitutional rules of +this State. If we wish to find a just and correct answer to this +complicated juridical question, which so far has not been treated in +literature, it will be pertinent to disregard entirely conditions in +Germany and the present Trial, and to ask ourselves what decision would +be given in a case where a civil servant of a different country—not +Germany—carried out a law. Let us assume for instance, that some +foreign country embracing a minority promulgated, in accordance with its +constitution, a law exiling from its territory all members of this +minority, or confiscating for the benefit of the state the property of +such inhabitants, or turning over to the state or partitioning among +other citizens the large agricultural estates of such inhabitants. Let +us assume that such a case exists and let us ask ourselves: Does the +civil servant in this nation really commit a crime if he carries out +this lawful order? Is it really the duty of the official charged with +the execution of this law to refuse to obey the law and to declare that +in his personal opinion the law concerned is a crime against humanity, +or has he even the right to do so? In such a case, Gentlemen, would any +state today grant its civil servants permission to examine whether the +law proclaimed is contrary to the principles of humanity or to the +fluctuating norms of international law? What state would tolerate the +refusal of its civil servants for such a reason to execute a law already +proclaimed? + +[sm type begins]Or another example: Let us assume that the laws of a +nation decree that certain new weapons are to be introduced into the +armed forces, or that more warships are to be built, or that some +preparations have to be made for war. Should an individual civil servant +really have the right to refuse the execution of the law, even perhaps +to sabotage its execution, and then to say, by way of explanation, that +in his personal opinion concerning international law it involved the +preparation of an aggressive war, consequently an international +crime?[sm type ends] + +The Tribunal will have to decide these legal problems. But Funk may +point out in his own defense the fact that by reason of his entire +ideology and background it was especially painful to him to issue these +executive instructions, although he believed he was only doing his duty +as a civil servant. + +In this connection I wish to remind you of Funk’s circular of 6 February +1939 (Document 3498-PS, Trial Brief Funk, Page, 19), where he emphasizes +to his officials that it was their duty to “insure that it was carried +out in a correct manner in every respect” and where he already feels +impelled to disclaim personal responsibility for these measures by +expressly emphasizing: “How far and how rapidly the powers conferred by +the Four Year Plan are to be exercised will depend on the instructions +to be given by me in accordance with the directives of the Delegate for +the Four Year Plan.” This special reference made by the Defendant Funk +to the legal decrees of the Four Year Plan, which was authorized to +promulgate laws, originated in the defendant’s desire to express +formally and solemnly, and to establish for the future, the fact that in +issuing the executive instructions in 1938 he was a victim of his +obedience to the State, a victim of his loyalty to the laws of the State +to which he had sworn allegiance. + +Funk’s circular of 6 February 1939, already mentioned on Page 19 of the +trial brief, clearly expresses the qualms of conscience which had +gripped Funk in those days, although he had not incriminated +himself—qualms which, during his interrogation by an American officer +on 22 October 1945, led to his complete nervous collapse, so that Funk +was unable to restrain his tears and told the interrogating officer: +“Yes, I am guilty; I should have resigned at that time.” + +These same qualms of conscience gripped the defendant throughout the +entire Trial and are still haunting him; and we remember that in the +session of 6 May 1946, when this point was discussed, Funk was so deeply +shaken that he could hardly continue talking and finally declared here +before you, Gentlemen, that at that moment he fully realized that this, +meaning the atrocities of November 1938, was the starting point of the +chain of events leading to those horrible and frightful things of which +we have learned here, some of which he too had already heard of during +his imprisonment, and which culminated in Auschwitz. He felt, as he said +during his interrogation on 22 October 1945, “deep shame and heavy +guilt,” and he still feels it today; but he had put the will of the +State and the laws of the State above his own feelings and above the +voice of conscience since he, as a civil servant, was tied by duty to +the State. He felt these ties all the more strongly as these legal +measures were particularly necessary for the protection of the Jews in +order to save them from losing their rights completely, and from +suffering further despotism and violence. These are the very words of +the Defendant Funk; and they represent his actual feelings. Today Funk +still feels that it was a terrible tragedy that he of all people was +charged with these things—he who never during his entire life said a +spiteful word against a Jew, but had wherever he could always worked for +tolerance and equality for the Jews. + +If during his interrogation on 22 October 1945 Funk said: “I am guilty,” +it need not be investigated here whether the defendant intended these +words to apply to his criminal guilt, or only to a moral guilt which he +saw in the fact that he had remained in an office which compelled him to +carry out laws incompatible with his own philosophy of life. Funk was +not in a position to decide for himself the complicated legal question +of whether an official of an internationally acknowledged state can be +punished at all if he only carries out laws passed in accordance with +the legal constitution of this state. For the Defendant Funk his “guilt” +did not lie in the fact that he had signed the executive instructions in +November 1938, since this had been his duty as an official, rather did +he consider himself guilty because he had remained a member of the +Government although he found the acts of terror which had occurred +intolerable, and abhorred them; he was not involved in the “conflict of +conscience,” of which he spoke when he was interrogated, because he +acted according to the laws which he considered necessary under the +conditions prevailing at the time. This conflict was a result of the +fact that he had not, in this difficult situation, listened to the voice +of his conscience and had not resigned his ministerial office. But the +decisive reasons for his attitude and his final decision to remain in +office in spite of his feelings about the matter were certainly not +material considerations. His reputation as a journalist and his +abilities as such would easily have enabled him to find another suitable +position. Much is to be said for the opinion that the Defendant was held +in office above all by the thought that his resignation would in no way +improve matters, but that on the contrary the administration would +become still more radical under an unsuitable and fanatical successor, +while by staying in office he might hope to alleviate much distress. + +These considerations, which may have guided the Defendant Funk in the +first place, were certainly correct up to a point. His State Secretary, +Dr. Landfried, at least has testified that later on too Funk often +expressed serious misgivings concerning the action taken against the +Jews in November 1938 and showed very strong disapproval of all excesses +and infringements of the law committed by various Government agencies in +carrying out the action. Funk could talk openly to his confidant +Landfried, and he often complained to him that he had no power to +prevent such excesses. But, as he said to Landfried: “We of the Ministry +of Economics should take particular care to see that no one makes +illicit profits out of the Aryanization—that is, the transfer to +non-Jewish ownership—of business firms.” And Ministerialrat Kallus +described in his deposition of 19 April 1946 the various measures taken +at that time by Funk to protect the interests of Jewish owners. Kallus +also told us that Funk even made personal efforts to insure that his +orders were carried out by his subordinates in a proper manner. + +Gentlemen, thus a sense of duty on the one hand, and humane feeling on +the other, were the motives which kept the defendant in office and thus +brought him into a situation where he is today charged with criminal +action. + +Mr. President, I am now coming to a new subject and I have altogether +about 15 more pages. Does the Court wish to adjourn now? It is 6 minutes +to 4. + +THE PRESIDENT: Can you finish it by that time, Dr. Sauter? + +DR. SAUTER: There are 15 more pages; I should say about 8 or 9 minutes. +On further thought, Mr. President, it will take about half an hour. + +THE PRESIDENT: We will adjourn at this time. + + [_The Tribunal adjourned until 15 July 1946 at 1000 hours._] + + + + + ONE HUNDRED + AND SEVENTY-EIGHTH DAY + Monday, 15 July 1946 + + + _Morning Session_ + +MARSHAL: May it please the Tribunal, the Defendant Ribbentrop is absent +today. + +THE PRESIDENT: Would it be convenient to Counsel for the Prosecution and +the Defense if at 2 o’clock today we were to deal with those +interrogatories and affidavits which have come in since the last +applications were made? + +SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom): +My Lord, it would be perfectly convenient for the Prosecution. + +THE PRESIDENT: Dr. Sauter, do you think it would be convenient for the +Defense Counsel to deal with those matters at 2 o’clock? + +DR. SAUTER: Certainly, Mr. President; I will inform the other defense +counsel that these applications will be discussed at 2 o’clock. + +DR. RUDOLF DIX (Counsel for Defendant Schacht): I agree with my +colleague, Dr. Sauter, that this should be done. But if this is done at +2 o’clock it will interrupt my final speech. I should be very grateful +if it could be done immediately after Dr. Sauter finishes his speech, so +that I could present my plea coherently. It would be very awkward if I +were interrupted. + +THE PRESIDENT: Certainly, Dr. Dix. Very well; we will do it immediately +after Dr. Sauter’s plea. + +DR. SAUTER: May I speak now, Mr. President? + +THE PRESIDENT: Yes, Dr. Sauter. + +DR. SAUTER: May it please the Tribunal; before the adjournment on +Friday, I explained in conclusion the position and the attitude of the +Defendant Funk with respect to the Jewish question. On this occasion I +pointed out that in connection with the executive instructions issued +late in 1938 on the legal exclusion of the Jews from economic life, the +Defendant Funk acted only in his capacity as a Reich official and in the +performance of the duties of that office. + +On Friday, I finished my statements in that respect with the words: + +It was a sense of duty on the one hand, and humane feeling on the other, +which kept the Defendant Funk in office and thus brought him into a +situation where he is today charged with criminal action. + +Now, Gentlemen of the Tribunal, I turn to the last chapter of my +appraisal of the Defendant Funk, of his motives and actions, and will +now deal with the gold deliveries by the SS to the Reichsbank, and with +the relation of the Defendant Funk to the concentration camp question. +That is to say, I am going to refer to Page 58 of the written speech +which has been submitted to you. + +It is a peculiar tragedy in the life of the Defendant Funk that he was +not only forced by fate in the year 1938 to issue executive instructions +for laws which he always inwardly condemned and repudiated more than +anybody else, but that once again, in the year 1942, he became involved +in a particularly horrible manner with Jewish persecutions. I am +thinking now of the deposits made by the SS in the Reichsbank, that is +to say, the matter on which a film was shown here of the steel vault of +the Frankfurt Branch of the Reichsbank and about which two witnesses +have testified, namely, Vice President Emil Puhl and Reichsbank +Councillor Albert Thoms. + +The Defendant Funk was already examined about this matter of the gold +deposits at the preliminary proceedings on 4 June 1945, (see 2828-PS); +at that time, however, no details were disclosed to him, and Funk made +the same statement then as he did before this Tribunal, namely, that he +was only briefly told about the matter in question on a few occasions, +and that he had not attached any importance to it at all. That is also +the reason why the Defendant Funk could not at first recall those +happenings very well during the proceedings here. He did not know +anything more about them than he had already said. + +Nevertheless, Gentlemen of the Tribunal, Funk had to expect that this +matter would be brought up in the Trial, at any rate in the +cross-examination. And this was actually done by the American +Prosecution on 7 May 1946, who submitted an affidavit by the witness +Emil Puhl, Vice President of the Reichsbank, in which at first sight +Puhl appeared to make serious accusations against the Defendant Funk. +Now it is remarkable that since the beginning of this Trial the +Defendant Funk has repeatedly referred to this very witness Puhl for +various points, and that since December 1945 he has repeatedly requested +that the latter be interrogated. Measured by ordinary human standards, +Funk would certainly not have done this if he had had a bad conscience +and had reason to expect to be compromised in the most damaging way by +his own witness regarding the concentration camp matter. But the oral +examination of the witness Emil Puhl here before this Tribunal showed +beyond a doubt that Puhl could no longer in any way maintain the +incriminating statements in his affidavit, as far as the character of +the Defendant Funk and his knowledge of the particulars of the SS +deposits were concerned. + +It is true that Funk, as he recalled after Puhl’s testimony (and +concerning this I submitted on 17 June 1946 a corrected copy of his +sworn testimony), was once asked by Reichsführer SS Himmler whether +articles of value which had been seized by the SS in the Eastern +Territories could be deposited in the vaults of the Reichsbank. Funk +answered this question in the affirmative and told Himmler that he +should delegate somebody to discuss the matter with Vice President Puhl, +and settle the details. Himmler at that time told Funk that his +Gruppenführer Pohl could do this and that the latter would get in touch +with Vice President Puhl. That was all that Funk at that time, I believe +in 1942, had discussed with Reichsführer SS Himmler and which he on that +occasion also repeated to his Vice President Puhl who was actually +directing the business of the Reichsbank and therefore responsible for +this affair. + +There was nothing extraordinary in this question of Reichsführer SS +Himmler, at least nothing which Funk could recognize. For, as far as +Funk knew, the SS was at that time in charge of the entire police +service in the Occupied Eastern Territories. For that reason it often +had to confiscate valuables just as the ordinary police did in the +interior, that is, within Germany. Moreover, all gold coins, foreign +currency, _et cetera_, in the Occupied Eastern Territories had to be +turned in according to law, and these deliveries in the Eastern +Territories were naturally made to the SS, because there were no other +state offices equipped for that purpose. Funk also knew that the +concentration camps were under the direction of the SS and thought that +the valuables which were to be given to the Reichsbank by the SS for +safekeeping belonged very probably to that category of valuables which +the entire population was obliged to deliver. + +Finally, as has been ascertained in the course of this Trial, the SS was +constantly just as much engaged in the fighting in the East as the Armed +Forces, and like the latter the SS had also collected so-called booty in +the abandoned and destroyed towns of the East and delivered it to the +Reich. Therefore, there was nothing at all extraordinary for Funk in the +fact that the SS possessed gold and foreign currency and brought it in +for delivery in the regular way. + +Now, the essential point in this whole business is the question whether +the Defendant Funk knew or saw that among the objects delivered by the +SS there were unusual quantities of gold spectacle frames, gold teeth, +and similar objects which had come into the hands of the SS not through +legal but criminal confiscations. If—and I emphasize, Gentlemen, if—it +could be proven that the Defendant Funk had seen such objects in the +deposits of the SS, this would naturally have caused him some surprise. +But we heard the witness Puhl say in the most positive way that the +Defendant Funk had no knowledge of this and, indeed, that Vice President +Puhl himself knew no further details about it. In any case Funk never +saw what particular gold objects and what quantities the SS delivered. + +Now, it has been said against Funk that he himself entered the vaults of +the Berlin Reichsbank several times, and from this one felt entitled to +draw the conclusion that he must have seen what objects had been +delivered to the Reichsbank by the SS. This conclusion is obviously +wrong because the evidence shows that during the entire period of the +war Funk went to the vaults of the Reichsbank only a very few times for +the purpose of showing these vaults and the bullion of the Reichsbank +stored there to special visitors, especially foreign guests. But on +those few visits to the vaults he never saw the deposits of the SS. He +never observed what in particular the SS had deposited in his bank. This +is established beyond doubt, not only by the sworn statement of the +Defendant Funk himself, but also by the oral testimony of Vice President +Puhl and Reichsbank Councillor Thoms here in this courtroom. This +Prosecution witness, who is certainly free from suspicion and who by his +own admission volunteered to testify, has declared here under oath that +the valuables were delivered by the SS in locked trunks, boxes, and bags +and were also stored away in these containers, and that Funk was never +present in the vaults when the bank employees made an inventory of the +contents of an individual box or trunk. The witness Thoms, who was in +charge of these vaults, never saw the Defendant Funk there at all. +Therefore, Funk neither knew of the proportions which the deliveries of +the SS gradually assumed in the course of time, nor did he know that the +deposits contained jewelry, pearls, and precious stones, and also +spectacle frames and gold teeth. He never saw any of those things and +none of his officials ever reported to him about them either. + +Now it is the opinion of the Prosecution that Funk, as President of the +Reichsbank, surely must have known what was kept in the vaults of his +bank; but this conclusion is also evidently mistaken and does not take +into consideration actual conditions in a large central issuing bank. +Funk, who was also Reich Minister of Economics, had in his capacity as +President of the Reichsbank no occasion whatever to bother about the +deposit of an individual customer, even if this happened to belong to +the SS. As President of the Reichsbank he did not bother about any +deposits of other clients of his bank either, since this was not his +job. On only one occasion, following a suggestion of his Vice President +Puhl, he asked Reichsführer SS Himmler—this was during his second +conversation with him—whether the valuables deposited by the SS in the +Reichsbank could be converted into cash in the legal course of business +at the Reichsbank. Himmler gave his permission and Funk passed this +information on to his Vice President Puhl. But in this matter he was +only thinking of gold coins and foreign currency, that is to say, of +those particular valuables which had to be turned in to the Reichsbank +as a matter of course in the German Reich and which could be and had to +be converted into cash by the Reichsbank. The idea never occurred to +Funk that the deposits might contain gold teeth or other such remarkable +objects which had their origin in criminal acts in concentration camps. +He heard about these things to his horror for the first time here in the +courtroom during the Trial. + +The only remaining point in the statement of the witness Puhl which +might excite a certain amount of suspicion, Your Honors, was the +question of preserving secrecy, which in fact played a very important +part indeed in the examination of the witness. Vice President Puhl +stated here at the beginning of his testimony that the Defendant Funk +had told him that the matter of the SS deposits must be kept especially +secret. Funk, on the other hand, has always denied this in the most +insistent manner and declared under oath that he never talked to Puhl at +all about any such secrecy. Thus at the very beginning, here in the +courtroom, we had one statement pitted against another, oath against +oath. Vice President Puhl’s statements regarding this point, however, +seemed somewhat contradictory from the beginning. For on one occasion +Vice President Puhl said that this secrecy had not struck him as +anything extraordinary, since after all secrecy is preserved about +everything that occurs in a bank. In answer to a special question, Puhl +then stated repeatedly that he did not notice at all that the Defendant +Funk had supposedly spoken about preserving secrecy. + +When, however, the affidavit of the witness Thoms of 8 May 1945 was read +and pointed out to the witness Puhl, the latter finally stated here +under oath on 15 May 1946 that it was plainly visible from this +affidavit that the desire for secrecy emanated from the SS. The SS +considered it important that this business should be transacted +secretly. The SS, as Puhl said, had been the ones originally responsible +for the imposition of secrecy. This was the literal conclusion of the +witness Puhl’s sworn statement and at the end of it he again confirmed +that the obligation for secrecy was desired and imposed by the SS. + +The initial contradiction regarding this point between the statements of +the Defendant Funk and those of the witness Puhl was hereby completely +eliminated, Your Honors, in favor of the defendant. Puhl himself could +no longer maintain his original assertion that it was Funk who had +ordered the SS deposits to be kept secret. Therefore, in arriving at +your verdict, you must proceed from the premise that the statement of +the Defendant Funk is correct in this point also and deserves +preference, for he has declared under oath from the very beginning and +with the utmost certainty that he himself knew nothing about keeping +anything secret and that he had never spoken of any such secrecy to +Puhl, either. Moreover, there was absolutely no reason for Funk to say +anything to Puhl about any special secrecy, since Funk was obviously of +the opinion that the valuables involved were only of the kind which had +to be turned in and confiscated, and which came within the regular +lawful business of the Reichsbank and need not be kept secret, +regardless of whether these things which had to be turned in were the +property of a prisoner in a concentration camp or the property of a free +individual. + +It was never made clear by the evidence submitted why the SS on their +part stressed the importance of preserving secrecy to Vice President +Puhl and why, furthermore, the SS opened the deposit in the name of +Melmer instead of in the name of the SS, and the Prosecution for their +part did not attach any importance to clearing up this point. However, +in any case, the demand of the SS for secrecy evidently did not strike +Vice President Puhl as unusual any more than it did the witness Thoms +who had nothing at all to do with the matter but who confirmed the fact +that this secrecy was nothing unusual. But nevertheless, Your Honors, +one thing is still a fact, namely, that nothing was kept secret from the +numerous employees of the Reichsbank about exactly what kinds of objects +were involved. On the contrary, the Reichsbank personnel was even +entrusted by Vice President Puhl with the task of sorting the valuables +delivered and converting them into cash at the pawn shop. Dozens of +Reichsbank officials who regularly entered the vaults could see the +various articles every day, and the Reichshauptkasse, an institution +entirely separate from the Reichsbank, from time to time settled +accounts for the conversion of valuables into cash with the Reich +Ministry of Finance in a quite open and thoroughly routine way. +Naturally, the Defendant Funk did not know, and still does not know +today, whether and to what extent agreements had been reached between +the Finance Minister and Reichsführer SS Himmler for accounting for the +gold articles to the Reich. He was never interested in it, and indeed it +did not concern him. + +From all these facts, as shown by the evidence, one can readily conclude +that Funk himself knew nothing about the things which were turned over +to the Reichsbank at the time, and that even Vice President Puhl and +Reichsbank Councillor Thoms did not think there was anything bad +connected with the things, although Thoms, at least, had seen of what +the deposits actually consisted. + +For this reason there is no longer any need to examine the obvious +question as to whether the initial statements of Puhl with regard to the +deposits of the SS should not have been received with a certain +skepticism from the very beginning. Puhl apparently had the +understandable desire at least by his written affidavit to shift +responsibility from himself to the shoulders of his President Funk in +order to free himself of his own responsibility for the unpleasant facts +of the case when he was told during his imprisonment that the gold +articles of the SS consisted mostly of spectacle frames and gold teeth +and had been taken from victims of concentration camps. At the +beginning, even Puhl apparently did not see anything wrong in the whole +business. For him the matter was an ordinary business transaction of the +Reichsbank for the account of the Reich, which he dealt with in the same +manner as he dealt with gold articles and foreign currency that had been +confiscated by the Customs Investigation Office or the Office of Control +for Foreign Currency or any other State authority. Gentlemen, whatever +one may judge the responsibility of Vice President Puhl to be, at all +events these things lie outside the responsibility of the Defendant Funk +who is the only one with whom you are concerned in connection with this +point here. In the period after this time Funk had only two or three +very brief and unimportant conversations with Puhl regarding these gold +deposits with a view to converting into cash gold coins and foreign +currency delivered in the regular way. Outside of this, Funk did not +concern himself at all with this whole matter any more. He knew even +less about the matter than Puhl, and it is not without significance that +Puhl declared here under oath that he would never have permitted these +gold objects to be deposited in the Reichsbank at all if he had had the +slightest notion that the things had been taken from concentration camp +victims under criminal circumstances by the SS. If Vice President Puhl +did not know that and could not have guessed it, then Funk could have +known even less about it, and Puhl’s initial statement which was to the +effect that—as he said at the time—“the gold articles had been +accepted by the Reichsbank with Funk’s knowledge and agreement and had +been converted into cash with the assistance of the Reichsbank +personnel,” was a grossly misleading statement to the Prosecution. +Subsequently during his imprisonment when Puhl first learned of the true +circumstances, he surely must have felt the same compunctions as Funk, +however innocent the latter was in the case. In conclusion, Puhl +declared here under oath that he would not have tolerated such +transactions either, and that he would have brought the matter to the +attention of the Directorate of the Reichsbank as well as to that of +President Funk if he had known that the valuables were taken from +victims of concentration camps and had been informed about the nature of +these valuables. + +In connection with this topic, therefore, I come to the following +conclusion: The Reichsbank certainly transacted business for the account +of the Reich, the subject matter of which was derived from criminal acts +of the SS; but the Defendant Funk knew nothing of this. He would not +have tolerated such transactions had he known the true circumstances. +Therefore, he cannot be made criminally responsible for this. + +The same is true, Your Honors, with regard to Reichsbank credits for the +business agencies of the SS, concerning which I shall limit myself to a +few sentences. In his written affidavit of 3 May 1946 the witness Puhl +has given a completely misleading account of this matter also. For he +stated originally that credits of 10 to 12 million Reichsmark furnished +by the Gold Discount Bank upon the instruction of the Defendant Funk +were used—and I am now quoting literally: “for financing production in +SS factories by workers from concentration camps.” + +In his oral examination as a witness, Puhl then was asked whether Funk +had any knowledge that persons from concentration camps were employed in +these factories at all. In reply to this, Puhl declared literally: “I am +inclined to assume this, but I am not in a position to know it.” +Therefore, he was not able to give any definite evidence concerning +Funk’s knowledge, but only to express a conjecture. In contrast to this, +Funk’s own statement in regard to this matter is quite clear and +convincing. It was to the effect that he knew, indeed, about the request +for credit by the SS, and that he even granted it, but that he knew +nothing about the nature of the SS enterprises concerned and about the +people who were employed in them. Funk stated this under oath. +Accordingly, this credit transaction, which moreover occurred about 2 +years before the affair of the SS gold deposits, that is, prior to 1940, +incriminates neither the Defendant Funk nor the witness Vice President +Puhl. At that time, in 1940, neither of them was acquainted with the +conditions in the concentration camps. They only learned about them much +later, that is, in the course of this Trial. Nor did the Defendant Funk +know that persons from the concentration camps were working in the +afore-mentioned SS factories for which the credit was intended. + +Gentlemen, in this connection it appears necessary to devote a few more +sentences to a discussion of the question whether Funk ever visited a +concentration camp. The witness Dr. Blaha, who was examined here, stated +that Dr. Funk was once in Dachau in the first half of 1944. This visit +was supposed to have occurred as a sequel to a conference of the Finance +Ministers at Berchtesgaden, or in some other place in this region, in +which Funk is said to have participated. Yet, Gentlemen, when he was +examined here, the witness Dr. Blaha was unable to say that he had +personally seen the Defendant Funk in Dachau, but had only heard from +camp inmates at Dachau—that is, from other persons—that the Reich +Minister of Economics, Funk, was with many other visitors allegedly +present. He did not see him; nor would he have known him if he had. From +the very beginning Funk himself has flatly denied this visit to Dachau. +He also stated this under oath, and the affidavit made by his constant +companion Dr. Schwedler (contained in the Funk document book under +Number 13 submitted to you) proves beyond a doubt that Funk never was in +a concentration camp. Dr. Schwedler is in a position to know this, as at +that time he was the constant companion of the defendant and knew where +Funk was from day to day. Moreover, Funk was never a Finance Minister, +as the witness Dr. Blaha assumed, and never took part in a conference of +Finance Ministers. Therefore, it appears beyond any doubt that what the +witness Dr. Blaha stated here purely from hearsay is based on false +information, or he has confused Funk with another visitor, which was +very easily possible since the Defendant Funk was comparatively unknown +to the public. The conclusion, therefore, is that Funk never visited a +concentration camp and never personally became aware of the conditions +prevailing in such camps. + +Now, by this assertion Funk by no means wishes to allege that he knew +nothing at all about the existence of concentration camps. Funk was +naturally cognizant of the fact, just as almost any other German, that +there were concentration camps in Germany after 1933; just as he knew +that there were and still are penitentiaries, prisons, and other penal +institutions in Germany. + +But what he did not know, and what I want to stress here, was the very +large number of such concentration camps and the hundreds of thousands, +even millions, of their inmates. Equally unknown to him were the +countless atrocities committed in these camps, which first became known +only in this Trial. In particular it was only during this Trial that +Funk learned that there were extermination camps which murdered millions +of Jews. Funk had no knowledge of this; he has stated this under oath +and it also appears absolutely credible, for one of the most important +results of this Trial, in the opinion of the Defense, consists in +providing proof of the fact that the German people in general knew +nothing about the large number of concentration camps or the conditions +within them, but that on the contrary those conditions were kept secret +in such a cunning and cruel way that even the highest officials of the +Reich including the very ministers knew nothing about them. + +Your Honors, the Defense have now presented their views on that part of +the Indictment which, had it been true, would have tragically +incriminated the man Funk. One may think as one pleases about acts of +violence during a political and economic struggle, especially in stormy +revolutionary periods, but in the opinion of the Defendant Funk himself +there can be no disagreement on one point, namely, with regard to the +concentration camp atrocities committed for years, especially against +the Jewish population. Anyone who participated in such unheard-of +atrocities should be made to atone for them in the severest way, +according to the opinion of the entire German people. + +That is also the point of view of the Defendant Funk, which he expressed +here on 6 May 1946 when he replied to the American prosecutor from the +witness stand that as a man and as a German he felt deeply guilty and +shamed for the crimes which Germans committed against millions of poor +people. + +Gentlemen, I have now reached the end of my consideration of the Funk +case as far as criminal law is concerned, and that is the duty of the +Defense in this Trial. + +The examination of the evidence with regard to the Funk case has, in the +opinion of the defendant, produced proof that a legal guilt, a criminal +guilt, on his part does not exist, and that he can ask you for his +acquittal with a clear conscience because he has never committed any +criminal acts in his life. + +Your task as judges will now be to find a just verdict for the Defendant +Funk, a verdict which will not make him atone for the crimes of others, +crimes he could not prevent and which he may not even have known about, +but a verdict which only establishes the degree of his own guilt and not +the degree of his political guilt, but of his criminal guilt which is +the sole object of these proceedings. This verdict should be valid not +only for today but also recognized as just in the future when we shall +view these terrible events in the proper perspective and dispassionately +as we would ancient history; a verdict, Your Honors, which will not only +satisfy the nations which you represent, but which will also be +recognized as just and wise by the German people as a whole; a verdict, +finally, which is not only destructive, retaliatory, and which will sow +hatred for the future, but one which will make it possible for the +German people to move forward toward a happier future of human dignity +and charity, of equality and peace. + +THE PRESIDENT: Mr. Dodd, will you or Sir David deal with this. Sir +David, I have got a document drawn up by the General Secretary which +shows in the first place, in the case of the Defendant Göring, that +there are four interrogatories which have been submitted, and to which +the Prosecution has not objected. Is that right? + +SIR DAVID MAXWELL-FYFE: That is so, My Lord, so there is no further +comment with regard to that first application. + +THE PRESIDENT: Yes. Then, with reference to the Defendant Ribbentrop, +there are two affidavits to which there is no objection, and there are +three further affidavits which have not been received, I understand. + +SIR DAVID MAXWELL-FYFE: That is so, My Lord. + +THE PRESIDENT: And one document to which the defendants’ counsel wants +to refer in its entirety, namely, TC-75, is that right? + +SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is so. There is no objection +to that. + +THE PRESIDENT: Perhaps I had better go on to the end of the documents +and then call upon Dr. Horn for what he has got to say about those +three, because as far as I can see, there are only these three documents +and an affidavit for Seyss-Inquart from a man called Erwin Schotter, and +another from a man called Adalbert Joppich, which have not yet been +received. + +SIR DAVID MAXWELL-FYFE: That is so, My Lord. + +THE PRESIDENT: And three letters from Seyss-Inquart to Himmler which +have not yet been produced. + +SIR DAVID MAXWELL-FYFE: That is so, My Lord. + +THE PRESIDENT: Also, in the case of Fritzsche there are two +interrogatories of Delmar and Feldscher which have not yet been +received. + +SIR DAVID MAXWELL-FYFE: My Lord, with regard to the three letters of the +Defendant Seyss-Inquart, they have been received, but they have not yet +been translated into French, and I think, My Lord, the simplest way +would be if the Tribunal took it that provisionally there is no +objection but that the French Delegation reserve their right to make any +objection if, upon receiving the translation, they find there is any +objection to make. + +THE PRESIDENT: Yes. + +SIR DAVID MAXWELL-FYFE: My Lord, the French Delegation will let the +Tribunal know if they find there is any objection. + +THE PRESIDENT: Yes. Now, with reference to the rest, so far as the +Prosecution are concerned, what are the objections, if any? + +SIR DAVID MAXWELL-FYFE: My Lord, I think the only objection there is +concerns the application of Dr. Servatius for the Defendant Sauckel. +Your Lordship sees that after the interrogatories granted by the +Tribunal there are certain documents which were introduced on 3 July by +the Defendant Sauckel to be considered by the Tribunal, and then there +is a number which is lettered “A” to “I.” The Prosecution suggests that +these documents are cumulative of the large number of documents already +introduced on behalf of this defendant, and, My Lord ... + +THE PRESIDENT [_Interposing_]: Just one minute, Sir David. These +documents “A” to “I,” were they applied for after the case had been +closed? + +SIR DAVID MAXWELL-FYFE: They were submitted on 3 July, Sir. That would +be after the case had been closed. + +THE PRESIDENT: But that was at the time, was it not, when we were asking +for supplementaries? + +SIR DAVID MAXWELL-FYFE: Yes, at the very end. + +THE PRESIDENT: That very day? + +SIR DAVID MAXWELL-FYFE: Yes. My Lord, I am sorry, but the case was not +technically closed, for that day was open for any defendant to put in. + +THE PRESIDENT: Are these documents which you have just been referring +to—“A” to “I”—are they already all in the document book? + +SIR DAVID MAXWELL-FYFE: Dr. Servatius tells me they are. + +My Lord, I have just been having a word with Dr. Servatius and he says +that the one to which he attaches the greatest importance is “A,” the +decree by the Defendant Sauckel as to return transportation of sick +foreign workers. My Lord, I am quite prepared on that assurance by Dr. +Servatius not to make any objection to number “A,” and Dr. Servatius, on +the other hand, says that he does not press for the others. + +My Lord, there is another application which has just come in on behalf +of the Defendant Sauckel for a document. It is an affidavit by the +defendant himself, dated 29 June 1946. The Prosecution have no objection +to the application. + +My Lord, I think the only other matter with regard to the Defendant +Sauckel is with regard to an affidavit from a witness called +Falkenhorst. My Lord, that again, the Prosecution submits, is +cumulative. + +THE PRESIDENT: You say Falkenhorst? + +SIR DAVID MAXWELL-FYFE: Falkenhorst, Sir. My Lord, it is the very last +application on my list. + +DR. ROBERT SERVATIUS (Counsel for Defendant Sauckel): Mr. President, may +I make a statement concerning the witness Falkenhorst? This witness was +called for Bormann; I waived his examination and submitted this +affidavit with the approval of the Tribunal, and since, in my opinion, +it was approved, I waived the witness. I assume that this is quite clear +and is confirmed by the Prosecution also. + +THE PRESIDENT: Do you mean, Dr. Servatius, that the affidavit from +Falkenhorst had already been granted before? + +DR. SERVATIUS: I assume it was granted at that time. The witness was +waiting outside and I was asked whether I would like to question him, +and I said in reply that I had an affidavit which was limited to one +particular incident and it would be sufficient if I could submit the +affidavit. He was the last witness who was supposed to be examined here, +after the end of the actual hearing of evidence. + +SIR DAVID MAXWELL-FYFE: My Lord, I do not insist in the opposition in +these circumstances. My Lord, that is all the comment the Prosecution +have to make. + +THE PRESIDENT: What about these two affidavits asked for by Dr. +Steinbauer from Erwin Schotter and Adalbert Joppich? + +SIR DAVID MAXWELL-FYFE: My Lord, we have not got these yet. As I +understand it, they have been admitted by the Tribunal subject to any +objection, and I am afraid we cannot tell until we have seen them. + +THE PRESIDENT: I see; well, then for the rest you have no other +objections? + +SIR DAVID MAXWELL-FYFE: No other objections. + +THE PRESIDENT: Sir David, we have just had another document placed +before us which contains an application on behalf of the Defendant +Sauckel to call as a witness his son Friedrich Sauckel. The Prosecution +has objected to that on the ground of irrelevance and cumulativeness. + +SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is the position. + +It did not seem, on consideration of the outline of the evidence, that +the evidence of the defendant’s son would contribute anything fresh. + +THE PRESIDENT: And that application was made after the 3 July? No, I see +that is wrong. It was submitted before, but it was not mentioned on 3 +July. + +DR. SERVATIUS: Mr. President, it was an application to bring the witness +here from England, since presumably he can give information regarding a +number of things. I have not yet made a formal application. It was just +a request to have him brought from England to Nuremberg for the purpose +of finding out whether he knows anything of importance, as he claims. + +SIR DAVID MAXWELL-FYFE: My Lord, I would not make objection to the +defendant’s son being brought here for the purpose of Dr. Servatius’ +having a talk with him and seeing whether he can contribute anything. + +THE PRESIDENT: The difficulty that these sorts of applications put the +Tribunal in is that the case never closes. + +SIR DAVID MAXWELL-FYFE: Yes, My Lord, I quite agree. + +DR. SERVATIUS: I did not know that the witness was in England. He was a +prisoner and there had been no news about him previously. + +THE PRESIDENT: Then, Sir David, do we have an affidavit from the +Defendant Sauckel himself which you have already dealt with? + +SIR DAVID MAXWELL-FYFE: Yes, My Lord. + +THE PRESIDENT: Then there is an affidavit by the Defendant Jodl on +behalf of Kaltenbrunner; the application has been received at the +General Secretary’s office on 5 July. + +SIR DAVID MAXWELL-FYFE: Yes, My Lord. + +THE PRESIDENT: That was after the last date when the defendants’ counsel +were asked for their applications. + +SIR DAVID MAXWELL-FYFE: Well, My Lord, I am afraid I have not been able +to collect the views of the Prosecution on that point. + +My Lord, the substance of that affidavit was contained in Dr. +Kauffmann’s speech. I do not think it really has any materiality, I mean +that there is any real—that there can be any objection to the +affidavit, because I am almost positive I remember this passage +occurring, or an equivalent passage, giving the Defendant Jodl’s views +on Kaltenbrunner in Dr. Kauffmann’s speech. My Lord, therefore, I do not +think we should occupy time discussing it and therefore I think we +should let the affidavit go in. + +THE PRESIDENT: Very well. Then there is an application from the +Defendant Rosenberg for a document entitled “Tradition in Present +Times.” That has been objected to as cumulative. + +SIR DAVID MAXWELL-FYFE: Yes, My Lord. + +THE PRESIDENT: Dr. Thoma, are you wanting to say anything in support of +that application or is it sufficiently covered by your speech? + +DR. THOMA: I am of the opinion that it has been sufficiently dealt with +in my speech. + +THE PRESIDENT: Then, Dr. Horn, there are two affidavits, one from +Ribbentrop and one from Schulze, not yet put in. Do you want them? + +DR. MARTIN HORN (Counsel for Defendant Von Ribbentrop): Mr. President, +there must be some mistake about the Schulze affidavit. I have not +submitted any Schulze affidavit or made any application for it. + +THE PRESIDENT: It was a mistake. Then, as to Ribbentrop’s affidavit, are +you asking as to that or have we already dealt with that? + +DR. HORN: No, I am asking that official cognizance be taken of the +affidavit of Ribbentrop, and of Document TC-75. The other two affidavits +of Thadden and Best have already been approved. + +THE PRESIDENT: Yes. Why do you desire the Defendant Ribbentrop to make +an affidavit? He has given his evidence in full. Is it something that +has arisen since? + +DR. HORN: The Defendant Ribbentrop only commented on a few documents +which were submitted to him during his cross-examination when he had an +opportunity to speak only very briefly about them. I did not want to +make my final speech any longer with a detailed discussion of the other +documents and, therefore, I have submitted this affidavit and beg the +Tribunal to approve it. + +THE PRESIDENT: Then, with regard to TC-75 ... + +SIR DAVID MAXWELL-FYFE: My Lord, that is one of our original British +documents. I have no objection to Dr. Horn using it. + +THE PRESIDENT: How about the translation, though? I suppose it is a +German document, is it not? + +DR. HORN: Yes, it is a German document which was only translated in part +and I have referred to the entire contents in my final plea. + +THE PRESIDENT: Is it a very long document or not? + +DR. HORN: No, it has only nine pages, Mr. President. The Prosecution +submitted one page of the document to the Court in evidence. Then later +I ascertained that there were two copies of the document. I then took +the second copy, which represents the complete document, and submitted +it to the Tribunal, and have had it translated. + +THE PRESIDENT: It has been translated? + +DR. HORN: Yes. + +THE PRESIDENT: Very well then, that is all right then. + +Now, Dr. Steinbauer, what about these two affidavits that you are asking +for, one from Erwin Schotter and another from Adalbert Joppich? + +DR. GUSTAV STEINBAUER (Counsel for Defendant Seyss-Inquart): I have +submitted the two documents for translation and since the Translation +Division is very busy I have not received the translation yet. But I +should like to submit the two originals to the Tribunal under the +numbers already given, Seyss-Inquart-112 and 113. + +THE PRESIDENT: Has the Prosecution seen the substance of the affidavits +or not? + +SIR DAVID MAXWELL-FYFE: No, My Lord, we have not. My Lord, they are very +short affidavits. I will ask someone to read them in German through the +day and let the Tribunal know before the Tribunal rises tonight. + +THE PRESIDENT: Was the application made before 3 July, or when was it +made? + +DR. STEINBAUER: Yes, on 3 July exactly. I received both of these two +documents on 3 July through the General Secretary and presented them on +the same day. + +THE PRESIDENT: The Tribunal will consider the matter then and they will +be glad to hear from the Prosecution if they have any objection. + +DR. STEINBAUER: Mr. President, may I present one more document on this +occasion? The Tribunal had approved the interrogation of Dr. Reuter and +the day before yesterday I received the answer with the questions of the +Prosecution ... + +THE PRESIDENT: What was it you were saying, Dr. Steinbauer? + +DR. STEINBAUER: That I received the approved document containing the +interrogation of the witness, Dr. Reuter, on Saturday in a German and +English translation. I should like to submit the original to the +Tribunal under Number 114. + +THE PRESIDENT: What is the name of the person who was interrogated? + +DR. STEINBAUER: The physician, Dr. Gero Reuter. He was questioned about +health conditions in the Netherlands. The Tribunal expressly granted me +that interrogatory. + +THE PRESIDENT: Well, that will be considered, then. + +DR. STEINBAUER: Then I shall submit it to the Court under Number 114. + +THE PRESIDENT: Sir David, perhaps you can look at that later. + +SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I understood that the +Tribunal had already approved and that this was just putting in the +answer. + +THE PRESIDENT: Yes, that is all. + +SIR DAVID MAXWELL-FYFE: Then, My Lord, there can be no objection. + +THE PRESIDENT: I ought to say that in order to save time, all these +documents which we are now dealing with must be taken to be offered in +evidence now because some of these defendants’ cases have been finally +dealt with. + +SIR DAVID MAXWELL-FYFE: Yes, My Lord. + +THE PRESIDENT: And they must, therefore, be given the appropriate +numbers as exhibits, and defendants’ counsel must see to that. They must +give numbers to them and give them in with those numbers to the General +Secretary so that the documents will be identified as exhibits on the +record. + +SIR DAVID MAXWELL-FYFE: My Lord, I appreciate that. I gather that Dr. +Steinbauer has just given that the Number 114. + +THE PRESIDENT: Yes, and the same applies to all the other defendants’ +counsel, the counsel for Göring and Ribbentrop and the counsel for +Raeder and the other defendants, because these are dealing with a +considerable number of interrogatories and affidavits, all of which +ought to have exhibit numbers. + +SIR DAVID MAXWELL-FYFE: If Your Lordship pleases. + +My Lord, Dr. Siemers just wanted to know that his applications were +covered. I think he is quite safe. + +THE PRESIDENT: Yes. Well, then, the only thing that remains is Dr. +Fritz’s on behalf of the Defendant Fritzsche. There are two +interrogatories which have not been received, as I understand, from +Delmar and Feldscher. Those have been granted, and the interrogatories +and the answers will be put in when you get them. + +SIR DAVID MAXWELL-FYFE: That is the way I understand it, My Lord. + +THE PRESIDENT: Well, then, the Tribunal will consider all these matters +and make the appropriate order upon it. + +SIR DAVID MAXWELL-FYFE: If Your Lordship pleases. + +THE PRESIDENT: We will adjourn now. Wait a minute, wait a minute! + +DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): In the case of the +Defendant Von Papen there are still a number of interrogatories which +have not been received. In the meantime, I have received four +interrogatories with answers, but they are still with the Translation +Division. Three interrogatories have not yet come back. I request an +opportunity to present them later on. + +THE PRESIDENT: They have been granted before, I suppose? Have they been +granted? + +DR. KUBUSCHOK: Yes, they had already been granted, with the exception of +one affidavit which I have also dealt with here but which has not yet +been translated and has been in the Translation Division for some time. + +THE PRESIDENT: Yes, but the application for that interrogatory had been +allowed, I suppose? + +DR. KUBUSCHOK: I presented this application recently. I was told to have +this affidavit translated, but I have not yet received the translation. +I shall submit this document together with the others as soon as I +receive them from the Translation Division. + +THE PRESIDENT: Very well. We will adjourn now. + + [_A recess was taken._] + +THE PRESIDENT: Go on, Dr. Dix. + +DR. DIX: Mr. President, Gentlemen of the Tribunal. A mere glance at the +dock reveals the singularity of Schacht’s case and the story of his +imprisonment and defense. There in the dock sit Kaltenbrunner and +Schacht. Whatever the powers of the Defendant Kaltenbrunner may have +been, he was in any case Chief of the Reich Security Main Office. Until +those May days of 1945, Schacht was a prisoner of the Reich Security +Main Office in various concentration camps. It is surely a rare and +grotesque picture to see jailor and prisoner sharing a bench in the +dock. At the very start of the Trial this remarkable picture alone must +have given cause for reflection to all those participating in the Trial: +judges, prosecutors, and defense counsel alike. + +Schacht was banished to a concentration camp on the order of Hitler, as +has been established here. The charge against him was high treason +against the Hitler regime. The judicial authority, the Peoples’ Court, +headed by that bloodthirsty judge, Freisler, would have convicted him, +had not his imprisonment turned into detention by the victorious Allied +Powers. Since the summer of 1944 I was assigned to defend Schacht before +Adolf Hitler’s Peoples’ Court; in the summer of 1945 I was asked to +conduct his defense before the International Military Tribunal. This, +too, is in itself a self-contradictory state of affairs. This, too, +compels all those participating in the Trial to reflect on the +personality of Schacht. One involuntarily recalls the fate of Seneca; +Nero, as a counterpart to Hitler, put Seneca on trial for revolutionary +activities. After the death of Nero, Seneca was charged with complicity +in Nero’s misgovernment and cruelties, in short, with conspiring with +Nero. A certain wry humor is not lacking in the fact that Seneca was +then declared a pagan saint by early Christianity as early as the fourth +century. Although Schacht does not indulge in such expectations, this +historical precedent nevertheless forces us to remain always conscious +of the fact that the sentence to be pronounced by this High Court will +also have to be justified before the judgment seat of history. + +The picture of the Third Reich has been revealed to the Tribunal in a +thorough and careful presentation of evidence. It is a picture with a +great deal of background. An opportunity was given to depict this +background also, as far as it was possible within the limits of such a +thorough-going investigation entailing a judicial presentation of +evidence which, to be sure, though thorough enough, was nevertheless +concluded as soon as possible according to the requirements of the +Charter. + +In order to learn what it was like under Hitler in German countries, +there is still enough which has been left to the intuition of the Court. +It is not possible, and never will be possible, to understand Hitler +Germany from a constitutional point of view, according to the scholarly +conceptions and views of people with a legal mind. As a scholarly topic, +“The Constitution under Adolf Hitler” is a _lucus a non lucendo_. Mark +my words, “The Constitution”—that is, the reduction of the Hitler State +to a legal system, and not the attempt as made in the final plea by +Jahrreiss, to explain the tyranny of a despot under the aspect of legal +research. A scientific sociology of the Third Reich would, although +feasible, be very difficult and therefore has not yet appeared. + +Only very few Germans living in Germany knew the conditions and the +distribution of power within those circles of people who were seemingly +or actually called upon to contribute their share toward the formation +of a political will. Most Germans will be surprised when this picture is +unveiled. How much less possible was it for a foreigner to form a +correct judgment of the constitutional, sociological, and inner +political conditions of Hitler Germany at the time when the Indictment +was presented. But a correct judgment of these things was the +prerequisite for an Indictment correctly founded in both fact and law. + +I am of the opinion that the members of the Prosecution were thereby +confronted with a task which defied solution. I am furthermore of the +opinion that the Prosecution would never have presented their criminal +charges against the defendants under the count of a conspiracy if they +had been able to see the distribution of political power in Hitler +Germany in the same way as this may perhaps be today possible, although +with great difficulty, for an intelligent, politically gifted observer +and listener at this Trial. + +A conspiracy within the meaning of the Indictment was, as a practical +matter, not possible in Adolf Hitler’s Third Reich, as my colleagues +have already pointed out. The only thing possible in the Third Reich was +a conspiracy by the opposition against Adolf Hitler and the regime. +Several such conspiracies were formed, as was here proven. The +relationship between conspirators is somewhat different than that +between an accomplice and the chief perpetrator. The part to be played +by the individual conspirator in the execution of the common plan may +vary. Some, or a single one, of the conspirators may hold a leading +position within the conspiracy. At all times, however, co-operation is +necessary. Common usage of the term in itself precludes speaking of a +conspiracy when only one commands and all the others are merely +executive agents. + +I am, therefore, of the opinion that that which was defined as a crime +here in this hall can never constitute the elements of a conspiracy +according to criminal law. Other legal factors which might enter into +the question are of no interest to me as defense counsel for the +Defendant Schacht, because no criminal charge whatsoever can be brought +against Schacht personally, as an individual, and without connecting him +with deeds of others—in other words merely on the basis of his own +actions. Schacht himself desired only the permissible and the +beneficial, and his actions served these intentions. To the extent that +he erred politically, he is in all candor prepared for the verdict of +history. Yet even the greatest dynamics of international law cannot +penalize political error. If it did this the profession of the statesman +and politician would become impossible. World history is more affected +by mistakes and errors than by correct perceptions. According to +Lessing’s wise words, the perception of absolute truth is God’s +privilege. There remains for man as his greatest blessing only the quest +for truth. _Nescis, mi fili, quanta stultitia mundus regitur_, as old +Axel Oxenstierna once said, and he was probably right. + +Schacht declared here that he felt that he had been most grossly +deceived by Adolf Hitler. He thereby admitted that certain of his +decisions and actions had been wrong. The Prosecution disputes Schacht’s +good faith and imputes to him the _dolus_ of having deliberately worked +for a war of aggression as Adolf Hitler’s financial agent, thereby +becoming by implication criminally responsible, from the point of view +of the conspiracy, for all the cruelties and atrocities which were +committed by others during this war. The Prosecution itself was not able +to produce any direct proof of these allegations. They attempted to do +so first by means of alleged documentary evidence in the form of +misinterpreted statements by Schacht, torn from their context. For this +the Prosecution referred to witnesses who could not be made available +for examination before this Court because some of them were absent and +some had died. I recall, for example, the affidavits of Messersmith and +Fuller, and Dodd’s diary notes. Their lack of value as evidence was +clearly set forth to the Tribunal by Schacht during his examination. In +the interest of saving time I do not wish to repeat things which have +already been said, and which surely must still be within the +recollection of the Court. + +The Prosecution further attempted to base its charges on actions of +Schacht which had been established beyond reasonable doubt. All these +arguments of the Prosecution are mistaken conclusions from allegedly +incriminating circumstances. I shall confine myself to an enumeration of +the most essential wrong conclusions. The others either result from +these directly or by analogy. + +Schacht was opposed to the Treaty of Versailles, says the Prosecution. +That he was indeed. The Prosecution does not hold this opposition in +itself against him. However, it concludes from this that Schacht wanted +to do away with the treaty by force. Schacht favored colonial activity, +says the Prosecution. He did so indeed. They do not reproach him for +this, either, but conclude from this fact that he wanted to conquer the +colonies by force, and so it goes on. + +Schacht as President of the Reichsbank and Minister of Economics +co-operated with Hitler, consequently he endorsed Nazi ideology. Schacht +was a member of the Reich Defense Council, consequently he was in favor +of a war of aggression. Schacht helped to finance rearmament during its +first phase until early in 1938, consequently he wanted war. Schacht +welcomed the union with Austria, consequently he approved of a policy of +violence against that country. Schacht devised the “New Plan” in +commercial policy, consequently he wanted to procure raw materials for +armament. Schacht was concerned about the possibilities of livelihood +for the excess population in central Europe, consequently he wanted to +attack and conquer foreign countries and to annihilate foreign peoples. +Over and over again Schacht warned the world against an anti-German +policy of oppression and the moral defamation of Germany, consequently +Schacht threatened war. Because no written evidence has been found that +Schacht resigned from his official positions as a result of his +antagonism to war, the conclusion is that he resigned from these +official positions merely because of his rivalry with Göring. + +The list of these false conclusions could be continued _ad infinitum_. +It finds its culmination in the fallacy that Hitler would never have +come to power if it had not been for Schacht, that Hitler would never +have been able to rearm if Schacht had not helped. But, Gentlemen, this +kind of evaluation of evidence would convict an automobile manufacturer +because a taxi driver, while drunk, ran over a pedestrian. In his +speeches or writings Schacht never advocated violence or even war. It is +true that after Versailles he pointed out again and again the dangers +which would result from the moral outlawing and economic exclusion of +Germany. In this opinion he is in the best international company. It is +not necessary for me to cite before this Tribunal the numerous voices, +not of Germans, but of members of the victor states, heard soon after +the Versailles Treaty and all in the same tone as the warnings of +Schacht. Moreover, the correctness of these objections to that treaty +will be absolutely valid for all time. At no time did Schacht however +recommend, or even declare possible, other ways than those of a peaceful +understanding and collaboration. As an avowed economic politician, it +was clearer to him than to anybody else that war can never solve +anything, not even if it is won. In all of Schacht’s utterances his +pacifist attitude was expressed again and again; perhaps the shortest +and most striking of them was that statement at the Berlin Congress of +the International Chamber of Commerce, when Schacht in the presence of +Hitler, Göring, and other exponents of the Government called out to the +assembly: “Believe me, my friends, all nations desire to live, not to +die!” This pronounced pacifist attitude of Schacht is indeed confirmed +by all witnesses and affidavits. + +For the few in the world—and I purposely say in the world, not only in +Germany—who from the very beginning recognized Hitler and his +Government for what they were, it certainly was a cause for anxiety and +sorrow, or at the very least puzzling, to see a man like Schacht placing +his services and his great professional ability at the disposal of Adolf +Hitler after he had come to power. The witness Gisevius also shared this +anxiety, as he has testified here. Later on he convinced himself of +Schacht’s honorable intentions through the latter’s upright and +courageous behavior in 1938 and 1939. In his interrogation Schacht +outlined for us the reasons which caused him to act in this manner. I +need not and do not wish to repeat them in the interest of saving time. +The evidence has not shown anything which would refute the veracity of +this presentation by Schacht. On the contrary, I only refer for example +to the affidavit of State Secretary Schmid, Exhibit Number 41 of my +document book, containing detailed statements on this subject on Page 2, +which are in complete agreement with Schacht’s description. A +consideration of the remaining testimony and affidavits as a whole leads +to the same result. In order to understand the manner in which Schacht +acted at that time both directly after the seizure of power as well as +after he had recognized Hitler and his disastrous activity, it is +absolutely necessary to form a clear picture of Adolf Hitler’s +pernicious spell and his system of government. For both are the soil in +which Schacht’s actions grew, and by which alone they can be explained. +I realize that one could speak about this for days and write volumes +about it if one wished to treat the subject exhaustively. However, I +also realize that before this Tribunal short references and spotlights +will be sufficient in order to gain the Tribunal’s understanding. + +The disintegrating collapse of imperial Germany in 1918 presented the +German people, who were heterogeneously composed and had never become an +organic unit, with a parliamentary democratic form of constitution. I +venture to assert that all political thinking which is not directed by +selfish motives must strive for democracy, if this is also understood to +include the protection of justice, tolerance toward those of different +convictions, freedom of thought, and the political development of +humanity. These are the highest timeless ideals which, however, in their +very constitutional forms actually harbor dangers in themselves. When +democracy appeared for the first time on the European continent, +reactionary political thinkers like Prince Metternich and the like +opposed every democratic impulse, because they saw only the dangers of +democracy and not its educative qualities and historical necessity. In +pointing to these dangers they were unfortunately right. Perhaps the +cleverest nation which ever lived, the Greeks of antiquity, had already +pointed out the danger of democracy developing through demagogy to +tyranny; and probably all philosophizing political thinkers from +Aristotle to Thomas Aquinas, and down to the present time, have pointed +out the danger of this development. This danger becomes all the greater +if democratic freedom in the theoretical constitutional sense does not +arise and grow organically, but becomes more or less a chance gift to a +nation. + +_En fait d’histoire il vaut mieux continuer que recommencer_, a great +French thinker once said. Unfortunately, this has made Germany the +latest and, it is to be hoped, the last example of a tyranny of a single +despot established by means of a diabolical demagogy. For there is no +doubt that the Hitler regime was the despotism of an individual, whose +parallel is to be found only in ancient Asia. In order to understand the +attitude of any individual toward this Government—not only that of +Schacht and of the Germans, but that of any person and any government in +the world which has collaborated with Hitler, and on the part of the +foreign countries such collaboration based on confidence was much +greater toward Hitler than toward any government of the intermediate +Reich or of the State of the Weimar Constitution—it is necessary to +analyze the personality of this despot, this political Pied Piper, this +brilliant demagogue who, as Schacht testified here in his interrogation +with understandable agitation, not only deceived him, but also the +German people and the whole world. In order to accomplish this deceit, +Hitler was forced to bring under the spell of his personality +innumerable clever and politically trained individuals besides Schacht, +even those outside the German frontiers. He succeeded in doing this even +with prominent foreigners, including those in leading political +positions. I shall refrain from citing names and quotations to prove +this point. The fact is generally known to the Tribunal. + +I shall now skip the next lines and continue on Line 10 of the same +page. How was this influence of Hitler possible, both in Germany and +abroad? Of course, Faust also succumbed to Mephistopheles. In Germany, +all the circumstances of the conditions prevailing at that time, which +have been described here in the evidence given by Schacht and others, +favored this influence. The complete collapse of the parliamentary party +system and the resulting necessity, felt already at the time by the +existing Government, of having to rule by emergency decrees enacted +without parliamentary participation, thus establishing a dictatorship of +ministerial bureaucracy as a forerunner of the Hitler dictatorship, +produced in nearly every quarter a cry for stronger leadership. The +economic crisis and unemployment opened the ears of the masses, as +misery always does, to demagogic insinuations. The complete lethargy and +inactivity of the center and leftist parties of the time also created +among critical and intelligent observers, of whom Schacht assuredly was +one, the inward readiness and longing to welcome spirited political +“dynamics” and activity. If someone, like the sharp-witted and +perspicacious Schacht, already at that time discovered faults and dark +sides, he could hope, as Schacht did, by his very active penetration +into the Movement or by co-operation with leading State departments +quickly and easily to combat these shady aspects, which in any case +beset every revolutionary movement. “When the eagle soars, vermin settle +on his wings,” replied the late Minister of Justice Gürtner, quoting +from Conrad Ferdinand Meyer’s novel Pescara, when I pointed out these +shady sides to him after the seizure of power. These considerations are +in themselves reasonable and plausible. The fact that they contained a +political error even in Schacht’s case does not deprive them of their +good faith and honest convictions. However, we ought not to forget that +here, during the proceedings, we heard of a message from the American +Consul General Messersmith, dating from 1933, in which he joyfully hails +the report that decent and sensible people are now joining the Party +too, as this gave reason to hope that radicalism would thereby cease. I +refer to the relevant document submitted here by the Prosecution, +Document Number L-198, report Number 1184 by the American Consul General +Messersmith to the Secretary of State in Washington. + + “Since the election on March 5th, some of the more important + thinking people in various parts of Germany have allied + themselves with the National Socialist movement, in the hope of + tempering its radicalism by their action within rather than from + without the Party.” + +But what Messersmith very reasonably says of ordinary Party members of +that time, naturally applies also, _mutatis mutandis_, to the man who +offered his co-operation in a leading Government post. The reasons +Schacht gave for his decision at the time to accept the post of +President of the Reichsbank and later of Reich Minister of Economics +are, therefore, thoroughly credible in themselves and have no immoral or +criminal implication. Schacht, indeed, has acknowledged his activity. He +only lacked the intuition to recognize at the outset the personalities +of Hitler and some of his henchmen for what they were. But that is no +punishable act; neither does it indicate any criminal intention. This +intuition was lacking in most people both within and without the German +frontiers. The possession of intuition is a matter of good fortune and a +divine gift unfathomable by reason. Every man has his limitations, even +the most intelligent. Schacht is certainly very intelligent, but in this +case reason prevailed at the cost of intuition. In the last analysis +this process can only be fully appreciated when those mysterious forces +are taken into account which affect world events, and of which +Wallenstein says: “The earth belongs to the evil spirit, not to the +good” where he speaks of “the sinister powers of evil which lurk in the +bowels of the earth.” Adolf Hitler was a prominent example of these +powers of darkness and his influence was all the more nefarious since he +lacked the grandeur which accompanies Satan. He remained a +half-educated, completely earth-bound bourgeois who also lacked any +sense of the law. The Defendant Frank said truly of him that he hated +jurists, because the jurist appeared to him as a man of law, as a +disturbing factor in the face of his power. Thus he could promise +everything to everybody and not keep his promise, for a promise to him +meant only a technical instrument of power, and signified no legal or +moral obligation. + +Neither was the pernicious influence of Himmler and Bormann detected by +Schacht at this time, or probably by anybody else. Yet all those crimes +that are now covered by the Indictment matured within this very trio, +for to Himmler politics were identical with murder, and in his purely +biological view he regarded human society as a breeding farm and never +as a social and ethical community. A personality like Adolf Hitler, and +his effect upon men, even including such intelligent men as Schacht, can +only be correctly judged by following the prophetic vision of the poet, +as I have already just tried to do, thereby achieving insight otherwise +inaccessible to the mind of man. The demon undoubtedly became incarnate +in Adolf Hitler to the detriment of Germany and the world, and perhaps I +can summarize by quoting—and this is absolutely necessary for an +understanding of Schacht’s conduct, as well as that of all those others +who deliberately and in all purity of heart offered their services to +Hitler—a passage from Goethe, which in a few words sums up and +discloses the mystery. Here lies the key to the understanding of all +those who flocked to follow Hitler. May I quote from “Poetry and Truth,” +Part 4, Book 20, as follows: + + “Although the demoniac can manifest itself in everything + material and immaterial, and indeed be singularly apparent in + beasts, it assumes its most extraordinary form when associated + with man, and constitutes a power which if not contrary to is + yet a disturbing element in the moral world order. There are + innumerable names for the phenomena which are brought to light + in this way. For all philosophies and religions have tried both + in prose and in poetry to solve this riddle and to dispose of + the matter once and for all, which they may well continue to do + in the future. But the demoniac assumes its most dreadful form + when it manifests itself preponderantly in any one human being. + During my lifetime I have had occasion to observe several such + persons, either closely or from afar. They are not always the + most distinguished persons, either in intellect or in talent, + and they rarely excel by their goodness of heart; yet a + tremendous force emanates from them, and they exercise an + incredible power over every creature and even over the elements, + and none can tell how far such influence will extend. No + coalition of moral forces can prevail against them; it is in + vain that the better part of humanity attempts to put them in + disrepute as victims of deception, or as impostors. The masses + are attracted to them. They seldom or never find contemporary + equals, and nothing short of the universe itself, against which + they begin the fight, can overcome them; and these observations + may perhaps have inspired that curious but monstrous saying: + _Nemo contra Deum, nisi Deus ipse_.” + +I think I have demonstrated that the fact that he served Hitler does not +incriminate Schacht and that it can by no means be concluded from this +act that at that time he embodied the criminal deeds of Hitler and his +regime into his own intentions. He did not even think them possible. +Therefore he followed no dolus eventualis either; on the contrary: +Insofar as the violent character of the regime disturbed him he believed +he would be able, through his appointment to an important post, to +contribute to the abolition and prevention of those attendant phenomena +of which he also disapproved, and to aid Germany’s recovery within his +sphere of activity in a decent and peaceful manner. + +That being the case, not the slightest reproach could be made against +him for not only serving Hitler after the seizure of power, but also for +helping him to gain control. This latter charge is, therefore, +completely immaterial as evidence of criminal behavior or of criminal +intent. However, there is no need for this argument at all, since as a +matter of fact Schacht did not help Hitler to gain power. Hitler was in +power when Schacht began to work for him. Hitler’s victory was already +assured when the July elections of the Reichstag in 1932 brought him no +less than 230 seats. These represented about 40 percent of the total +votes. There had been no such election result for any party for decades. +But the immediate political future was thereby established under a +Government headed by Hitler, thanks to the very rules of the German +democratic Constitution and every other democratic constitution. Any +other path was beset with the danger of civil war. + +It was only natural that Schacht, who at that time honestly believed in +Hitler’s political mission, did not wish to take this path. It was +likewise natural that he should take an active part whenever he believed +that thereby he might be able to prevent harmful radicalism in the +economic political domain. A wise French statesman says: + + “Every epoch confronts us in some way with the task of creating + benefits or preventing abuses. For this reason, in my opinion, a + patriotic man can and must serve any government which his + country appoints for itself.” + +By serving Hitler, Schacht, in his opinion, was serving his country and +not Hitler. This opinion may have been the greatest of mistakes, and it +has subsequently revealed itself as completely erroneous as far as +Hitler was concerned, yet Schacht can never be criminally charged for +acting as he did at that time, neither directly nor circumstantially. +And indeed we must not forget that the Hitler of 1933 not only seemed to +be a different man from the Hitler of 1938 or even of 1941, but actually +was different. Schacht has already referred during his interrogation to +this transformation, which was caused by the poison of mass worship. +Moreover, the transformation of such personalities is a psychological +law. History proves this in Nero, Constantine the Great, and many +others. In the case of Hitler there exist many irreproachable witnesses +for the truth of this fact, irreproachable in the sense that a purpose +or an intention to violate the law, to raise terrorism to a principle, +and to attack mankind with a war of aggression, can never be imputed to +them. I merely wish to quote a few of them. I could multiply the +quotations a hundredfold. In 1934 Lord Rothermere wrote an article in +the _Daily Mail_, entitled: “Adolf Hitler from Close By.” I quote only a +few sentences: + + “The most prominent figure in the world today is Adolf Hitler + ... Hitler stands in direct line with those great leaders of + mankind who seldom appear more than once in two or three + centuries ... it is delightful to see that Hitler’s speech has + considerably brightened his popularity in England.” + +THE PRESIDENT: Dr. Dix, I thought the Tribunal had refused to allow the +writings of Lord Rothermere to be put in evidence or used. + +DR. DIX: I interpreted the decision of the High Tribunal barring +quotations from Lord Rothermere from the document book to mean—and this +is also the reason given in the Indictment—that this was a matter for +argument which should not be submitted in evidence as a fact, and that +it would be irrelevant in the hearing of the evidence that Rothermere +and others were of this opinion; and from this I drew the +conclusion—and I am still of the opinion today that this conclusion is +correct—that in the course of my argument, that is, in the course of my +appraisal of the evidence, I could cite passages from the literature of +the entire world, insofar as it is known, in order to support a line of +thought. That Rothermere said that is not a fact which I want to submit +to the Tribunal as evidence, but only in support of the assertion +forming part of my argument that not only Schacht but also other +intelligent and prominent people, even outside of Germany, at first had +the same opinion of Hitler’s personality ... + +THE PRESIDENT: Dr. Dix, the Tribunal has already indicated its refusal +to allow this to be used as evidence, because it does not pay any +attention to the opinions expressed by this author. Therefore, we think +it would be better if you went on to some other part of your argument. + +DR. DIX: Then I ask—the Tribunal surely has a translation of my final +speech before it—that I be allowed to quote a short passage from Sumner +Welles, and then a passage, which seems very important to me, from the +book written by the last British Ambassador. I should be very grateful +if I could quote both of these two passages for, if one wants to prove +that even an intelligent man can hold a certain opinion and is entitled +to hold it, then I do not know but what the most obvious and convincing +proof for that lies in the fact that other intelligent and completely +objective people also held the same view. I shall lose an important +point of my argument if I am not permitted to quote the two short +passages, and I should like to ask that they be heard briefly; it is +only the quotation from Sumner Welles and Henderson. + +THE PRESIDENT: I have not said anything about Sumner Welles. It was only +because we had expressly excluded the writings on this subject of Lord +Rothermere that we thought it was inappropriate that you should quote +him. I do not think we excluded these other books to which you here +refer in your speech and therefore we thought you might go on to that. + +DR. DIX: I quote from Sumner Welles’ book _Time for Decision_, published +in New York in 1944: + + “Economic circles in each of the western European democracies + and the New World welcomed Hitlerism.” + +And it is only right, when Great Britain’s last Ambassador in Berlin, +even during the war, states on Page 25 of his book: + + “It would be highly unjust not to recognize that a great number + of those who joined Hitler and worked for him and his Nazi + regime were honest idealists.” + +Further on he makes this interesting remark: + + “It is possible that Hitler was an idealist himself in the + beginning.” + +And the Government of the United Kingdom would surely never have +concluded a naval treaty with Hitler Germany in April 1935, and +therewith have contributed in the interests of justice to a modification +of the Versailles Treaty, if they had not had entire confidence in +Hitler and his Government. Finally, the same holds true for all the +international treaties concluded by Hitler, including the treaty +concluded with Russia in August 1939. And it is a striking fact, even +today, that so intelligent a man of such high ethical standing as the +late British Prime Minister Chamberlain declared in a speech as late as +January 1939—at a time when Schacht had already long been treading the +dark paths of conspiracy against Hitler, in the face of the events of +1938—that he had gained the definite impression from Hitler’s recent +speech that these were not the words of a man who was making +preparations to plunge Europe into another war. I do not doubt that +these words were not spoken as a matter of tactics, but reflected the +speaker’s true opinion. Such examples could be quoted in great number. +Is it desired to deny to a German, in 1933 and the following years, the +right to come to the same opinion about Hitler in good faith? + +The fact that Schacht did not enter office as Minister of Economies +until after 30 June 1934 is not inconsistent with this either. Only in +retrospect does the full enormity of these events become clear. In June +1934 we were still in the midst of revolutionary turmoil, and history +will be able to show similar occurrences in any revolution of this kind. +I do not have to give detailed proof of this, nor do I wish to do so. +The events of 30 June provided just as little, if not less, motive for +Schacht to turn away from Hitler with disgust, as they did for the +governments in the world who not only continued diplomatic relations +with Hitler in full confidence, but also rendered him great honors and +allowed him to score important successes in foreign policy, especially +after 1934. + +If Schacht, however, cannot be criminally charged with the fact that he +placed himself at the disposal of Hitler’s Government, it is surely +completely superfluous, indeed it would be beside the point, to attempt +to make long statements in excuse of individual acts, such as his +petition addressed to the Reich President in 1932, or his letter to +Hitler in the same year. Anybody who knows life can find a thoroughly +natural explanation for them in the fundamental attitude of Schacht. If +this attitude is proved to be unobjectionable from the point of view of +criminal law and the rules of evidence, then no such documents can be +used in argument against Schacht. It is the principle that matters. The +same holds true for Schacht’s participation in the so-called meeting of +industrialists. On this subject I should only like to remark by way of +correction that Schacht neither presided at this meeting nor +administered these funds exclusively for the National Socialist Party. + +Now one witness here has passed judgment on Schacht’s attitude toward +the seizure and consolidation of power during this period: + + “Schacht was an untrustworthy person,” he said. “Schacht + betrayed the cause of democracy at that time. I therefore + refused in 1943 to join a Government proposing to overthrow + Hitler with Schacht’s participation.” + +This was the former Minister Severing who, according to his own +statement, relinquished his ministerial chair and premises on 20 July +1932, when the Berlin Chief of Police and two police officers called on +him, demanding his withdrawal with the assertion that they had been +authorized to do so by the Reich President. Severing withdrew, as he +said himself, to avoid bloodshed. In spite of the great respect which I +feel toward Severing’s clean political character, I am forced to my +regret to deny him any right to pass competent judgment on statesmen +who, unlike him and his Government coalition, did not remain +lethargically passive. Severing and his political friends indeed bear a +disproportionately greater responsibility than Hjalmar Schacht for Adolf +Hitler’s seizure of power because of their indecision and, finally, +their lack of political ideas; but they do not have to answer for this +to any judge except history. And this responsibility will be all the +greater since the witness indeed makes the claim that at that time he +had already recognized that Hitler’s accession to power meant war. If +one may really believe that he possessed this correct political +intuition, then his responsibility, and that of his political friends, +will be all the greater in view of their passivity on that and later +occasions, and again this responsibility will be disproportionately +greater than that of Hjalmar Schacht. Our German workers are certainly +no greater cowards than the Dutch. Our hearts rejoiced to hear a witness +here describe the manly courage of Dutch workers who dared to strike +under the very bayonets of the invading army. The following which +Severing and his political friends deservedly had in the German working +class might perhaps have induced them not to watch the dissolution of +the trade unions with such dull passivity as was the case in 1933, had +only their natural leaders such as Severing and his colleagues been a +little more daring and willing to expose themselves. In the last resort, +the Kapp revolt in 1923 was also overcome by the general strike of the +workmen. The Hitler regime was not so strong in 1933 that it did not +have to fear the truth of the poet’s words addressed to the workers: +“All wheels stand still at your strong arm’s will.” The National +Socialist Government at that time was quite well informed about this and +was consequently apprehensive. This is also apparent from Göring’s +interrogation on 13 October 1945, the transcript of which was quoted and +submitted by Professor Kempner on 16 January 1946. Göring said: “You +must consider that at that time the activity of the Communists was +extraordinarily strong and that our new Government as such was not very +secure.” But even this strong arm which I have just mentioned required a +guidance which was denied to the working class and for which men like +Severing would have been indicated. In all justice they will have to +account for their passivity, not before the judge in a criminal court, +but before history. I do not presume to pass a final judgment. I confine +myself to revealing this problem and to attributing a full and +embarrassing measure of self-righteousness to the witness Severing, +although I respect him as a man, if he feels himself called upon to +accuse others, when studying the question as to who from the view point +of history is guilty of the seizure and consolidation of power by +Nazism—especially if, in contrast to Schacht, he intuitively foresaw +the later evolution of Hitler—instead of submitting himself with +humility to the judgment of history, relying on his undoubtedly +unimpeachable views and his undoubtedly pure intentions. + +Let us always bear in mind, in the interest of historical truth, that +especially at the beginning of the Nazi rule there were only two power +groups, with the exception of foreign intervention, which could perhaps +have liberated Germany, namely, the Army and the working class, +provided, of course, that both were under the proper leadership. + +I had to go into more detail on this point because such a detrimental +remark by such a blameless and distinguished man as Severing brings with +it the danger of unjust deductions regarding my client. It would have +been agreeable to me if I could have been spared this discussion of +Severing’s incriminating testimony. Severing has further brought the +charge of political opportunism against Schacht. In politics, to be +sure, the boundary between opportunism and statesmanlike conduct +dictated by expediency is very fluid. Before appraising Schacht’s +conduct in 1932 and 1933 as opportunistic, his past should also have +been considered. After 1923 this past lived in the public eye. It has +partly been a subject of these proceedings, partly it is already known +to the Court. This past speaks rather for the fact that Schacht does +what he judges to be right, not only with a great disregard of +consequences, but also with great courage. Indeed, he has also proved +this courage as a conspirator against Hitler, as is bound to appear from +an examination of this activity as conspirator, and as Gisevius +expressly described here. + +But let us go back with Schacht to the year 1923. At that time he +stabilized the mark against all parties interested in inflation; in 1924 +he blocked credits against all hoarders of foreign currency; in 1927 he +deprived the exchange speculators of the credit basis for their exchange +manipulations. From 1925 to 1929 he fought against the debt and +expenditure policy of the municipalities and thereby incurred the enmity +of all the mayors. In 1929 he signed the Young Plan and thus defied the +opposition of the heavy industry circles and continuing this policy, he +fought openly since 1934 against the perversions and abuses of the Nazi +ideology and never personally carried out a plan or an order which was +contrary to his conscience or his sense of justice. + +Every statesman must make certain concessions during a time of +fanaticism. Certain sticklers for morality—of whom there are many +today—who demand a steely hardness for the protection of principles, +should not forget that steel has two qualities, not only solidity but +also flexibility. + +My Lord, I have now finished one particular section; the next one would +take longer. I certainly will not finish it until after 1 o’clock. I +should be grateful if Your Lordship would call the noon recess now. I am +now coming to Appendix Number 1 ... + +THE PRESIDENT: Dr. Dix, I think you had better go on until 1 o’clock. + +DR. DIX: Your Honors, in the translated copy which you have before you, +there are two appendices at the end. I had to employ this device because +the matters dealt with in this annex occurred after I had given my +speech to be translated. Therefore, I had to work in my comments on this +subject somehow, and could only do it by way of an appendix. + +And so I now come to the reading of Appendix 1, which is at the back, +and to the opinion of the testimony of Gisevius as expressed by my +colleague, Dr. Nelte, since I am here concerned with evaluating the +testimony of witnesses. + +Insofar as my colleague Dr. Nelte criticized the objective reliability +of the testimony of Gisevius regarding his statements incriminating the +Defendants Keitel, Göring, and so on, I refrain from any statements. The +Prosecution may take any standpoint it desires. This is not my task. + +But now Dr. Nelte has also attacked the subjective credibility of +Gisevius in the personal character of this witness and thus also +indirectly the reliability of his testimony concerning Dr. Schacht. This +demands a statement of my opinion, and a statement of a very fundamental +nature. + +Your Honors, it is here that minds part company. A gap that cannot be +bridged opens up between Schacht’s standpoint and the standpoint of all +those who adopt the train of thought with which Dr. Nelte attempts to +discredit the character of Gisevius, the deceased Canaris, Oster, Nebe, +and others. I most certainly owe it to my client, Dr. Schacht, to state +the following fundamental point very clearly and unequivocally: + +Patriotism means loyalty to one’s fatherland and people and fight +without quarter against anyone who criminally leads one’s fatherland and +people into misery and destruction. Such a leader is an enemy of the +fatherland; his actions are infinitely more dangerous than those of any +enemy in war. Every method is justified against such a criminal State +leadership, and the motto must be: _à corsaire, corsaire et demi_. + +High treason against such a State leadership is true and genuine +patriotism and as such highly moral, even during war. Who could still +entertain the slightest doubt after the findings of this Trial, and +finally after the testimony of Speer about Hitler’s cynical remarks +regarding the destruction of the German people, that Adolf Hitler was +the greatest enemy of his people, in short, a criminal toward this +people, and that to remove him any means were justified and any, +literally any, deed was patriotic. All those on the defendant’s bench +who do not recognize this are worlds apart from Schacht. + +I had to make this point in order to clear the atmosphere. After this +fundamental clarification I can refrain from refuting details in Dr. +Nelte’s attacks against Dr. Gisevius. Insofar as Dr. Nelte fails to see +any willingness for active service among these resistance groups to +which Dr. Schacht belonged, I need only point to the many hundreds who +were hanged on 20 July alone; Schacht numbers among the very few +survivors, and he too was to be liquidated in Flossenbürg. I point to +the dead victims of the political judiciary of the Hitlerian State whose +numbers run into thousands. Truly, the waging of a war of conspiracy +against Hitler and the necessity for cunning and dissimulation in +connection therewith were no less dangerous to life and limb than +exposing one’s self at the front. + +During the very fair cross-examination conducted by my colleague, Dr. +Kubuschok, Gisevius immediately admitted his mistake resulting from the +ban on publication, in the affair of Papen’s resignation. I have nothing +more to say about this. + +THE PRESIDENT: The Tribunal will adjourn. + + [_The Tribunal recessed until 1400 hours._] + + + + + _Afternoon Session_ + +DR. DIX: May it please the Tribunal, I had concluded with the +consideration of the probative value of the statements made here by the +witnesses Severing and Gisevius. + +Now, on concluding the evaluation of Schacht’s conduct up to about 1935 +and entering the period from 1935 to 1937, I would emphasize once more +that in order to save time I will not repeat the arguments which were +presented to the Tribunal in detail during the cross-examination, as for +instance the nonparticipation of Schacht in the legislation which led to +the total disregard for international law, because this took place +before his entry into the Cabinet. The decisive event for the +stabilization of Hitler’s power, the merging of the offices of the Reich +President and of the Chancellor of the Reich in the person of Hitler, +also lay outside his co-operation and responsibility. By this decree the +Army took its oath to Hitler. The Chancellor of the Reich not only had +police authority as heretofore but also authority over the Army. It is +not my task to investigate who bears the political responsibility and +thus the historic guilt for this law; in any case, it is not Schacht. + +All the basic anti-Jewish laws were also enacted before he entered into +office as a minister. He was completely surprised by the subsequent +Nuremberg Laws. The decree dealing with the exclusion of the Jews from +German economic life dated 12 November 1938 and the ordinance concerning +the use of Jewish property and possessions of 3 December 1938 were +issued after he had left his post as Minister of Economics and thus +without his active collaboration. The same applies to the decree +excluding Jews from the Reich Labor Service, which moreover probably +hardly inconvenienced them. The law providing for the death penalty for +secret reserves of foreign exchange, the so-called Law of Betrayal of +the People, was not directed specifically against the Jews but solely +against big industry and high finance; also it was not evolved by +Schacht but by the Minister of Finance. Schacht did not want to effect a +breach of relations on account of such laws because he believed it was +his duty to perform a more important task. In any case, this can hardly +be regarded as important, for in the Jewish question Schacht, by his +public speeches and his reports to Hitler, showed such a favorable +attitude toward the Jews that it would be unjust to disqualify him +politically and morally for such a reason, much less from the angle of +criminal law. As examples I would remind you of the Reichsbank speech +after the anti-Jewish pogrom in November 1938, the speech at Königsberg, +the memoranda of the year 1935, and so forth. In the Third Reich Schacht +was considered the most courageous and active protector of the Jews. I +only remind you of the letter of the Frankfurt businessman, Merton, +which was submitted to the Court, and of the illuminating statement of +the witness Hayler. According to the latter, when Hayler reproached +Himmler for the events of November 1938, he replied that after all it +had been the fault of the economic administration that matters had +reached such a point. Of a man like Herr Schacht one could not expect +anything better than that he should exercise a constant restraining +influence in the Jewish question and be opposed to the will of the +Party. + +In response to my further inquiry Justice Jackson defined this specific +charge of the Prosecution as follows: Schacht is not being charged with +anti-Semitism, but for activities which have a causal connection with +the atrocities committed against the Jews within the framework of the +planned war of aggression. Thus it follows that a denial of guilt as to +a war of aggression leads with compelling logic to the denial of any +guilt as to the atrocities which were committed against the Jews during +the war. Justice Jackson made some phases of the legislation in respect +to the Jews during Schacht’s term as Minister the subject of his +cross-examination. I shall refrain from this part of the +cross-examination; going into the questions put to Schacht and answered +by him is irrelevant according to the Charter and the previously +mentioned authentic interpretation of this part of the Indictment by +Justice Jackson. The anti-Semitic legislation of the Third Reich and the +personal attitude of an individual defendant toward it are, according to +the Charter, relevant in these proceedings only insofar as they are +connected with other crimes which are subject to punishment according to +the Charter, as for example the conspiracy to wage war, mass +extermination, and so forth. According to the Charter they cannot +constitute an offense in themselves, not even one against humanity. Only +those defendants are punishable for their deeds who can be proved to +have participated in the planning of a war of aggression with its +resulting inhuman consequences for the Jews. A prerequisite for their +conviction on this account, however, is that they recognized and desired +this goal and its result. There exists no purely objective liability for +the outcome in criminal law. According to the Charter, he who desired +the war and thus also the inhuman actions connected with it is +punishable; but the incriminating activity must always have occurred in +the course of the execution of such a plan. This purely legal +consideration in itself excludes the conviction of Schacht on the +grounds of atrocities against the Jews. + +Another discrepancy between the Prosecution, especially with regard to +the statements of Justice Jackson, and myself must likewise be clarified +at this point, otherwise we will be talking at cross purposes. During +the cross-examination Justice Jackson repeatedly pointed out that the +defendant is not being charged with anti-Semitism as such, that he is +not being charged with his opposition to the Treaty of Versailles, that +he is not being charged with his ideas and statements on the so-called +Lebensraum problem as representing the food problem of the central +European nations, that he is not being charged with his colonial +aspirations; but that he is being charged with all this only to the +extent that it served, with his knowledge and desire, for the +preparation of a war of aggression. By this objection Justice Jackson +meant to preclude certain questions and discussions. This would have +been justified and I too could now forego such arguments, were not the +Prosecution taking away with one hand what it is giving with the other, +because in the course of argumentation all this, namely, Schacht’s +alleged anti-Semitism, _et cetera_, is used as indirect proof, that is, +as circumstantial evidence that Schacht had prepared and desired this +war of aggression. The Prosecution of course does not count all that as +a criminal fact in itself, but as indirect proof, as circumstantial +evidence. Therefore in evaluating the evidence, I must also treat these +problems. I think I have finished dealing with the Jewish question. With +regard to the problem of Lebensraum, in order to save time, I can +probably refer to what Schacht has stated here during his interrogation +in justification of his statements and activities in this respect. The +colonial problem was the subject of cross-examination by Justice Jackson +insofar as he tried to prove that colonial activity by Germany was +impossible without world domination, or at least the military domination +of the seas. Further development of this train of thought would result +in the Defendant Schacht being charged with the fact that his striving +for colonies logically depended on the planning of a war of aggression. +That is a false conclusion. I think that Justice Jackson’s conception of +colonial policy is too imperialistic. Anyone desiring colonies for his +country without attendant domination of the world or the sea bases his +colonial activity on a lasting state of peace with the stronger maritime +powers. He must necessarily believe in peace with these powers. Germany +also possessed colonies from 1884 until the first World War; her +merchant marine carried on the necessary traffic with these colonies. +Her merchant marine before this war would also have been sufficient. +Aviation, in reply to Justice Jackson’s question, would not have been +essential. Nothing supports the presumption that in his desire for +colonies Schacht would have striven to eliminate foreign naval supremacy +by means of war. In view of his general conduct one can hardly credit +him with being as foolish as all that. France and Holland likewise +possess colonies, the sea routes of which they certainly do not control. + +This charge of the Prosecution is therefore inconclusive. Moreover, the +Tribunal knows that during the years before the war nearly all the +statesmen of the victorious powers were sympathetic to these colonial +aspirations of Germany, as is shown in many of their public speeches. + +I now come to the subject of rearmament, that is, to the activity of +Schacht in his capacity as President of the Reichsbank and Reich +Minister of Economics until 1937, in other words, up to the time when he +changed from a loyal servant of Adolf Hitler to a traitor against him +and took to the dark ways of artifice and dissimulation while making +preparations for an attempt on his life. + +The Prosecution considers the violation of the Versailles Treaty, the +Locarno Pact, and other treaties as indirect proof, that is, as +circumstantial evidence, of his criminal intention to wage a war of +aggression. This involves first the question of whether any treaty +violations took place and, if so, whether these treaty violations must +be judged as indications of an intent to wage a war of aggression on the +part of members of the Reich Government, Schacht included. It is +impossible, and also unnecessary, to discuss exhaustively in this plea +the problem of whether actual treaty violations were committed and to +what extent. My colleague Dr. Horn has already touched upon this +question. A short remark can serve to show at least the problematical +nature of this question. This again is important for a proper +evaluation. There are no lasting treaties, neither in the domain of +civil jurisdiction nor, still less, in the domain of international law. +The _clausula rebus sic stantibus_ often plays a much more important +role in the domain of international law affecting the political +intercourse between nations than in private dealings between +individuals. One must be very careful not to apply, offhand, the +relatively narrow principles of civil law to the breadth and depth of +international law. International law has its own dynamics. The highly +political intercourse between nations is subject to other juridical +aspects than the commercial and personal relations between individuals. +The most striking proof of the correctness of this thesis is the +juridical basis of the Indictment, particularly insofar as it deals with +the sentence _nulla poena sine lege poenale_ and demands, instead of +sanctions, the individual punishment of the leading statesmen of an +aggressor nation. Whoever upholds the conception of the Prosecution in +this respect, acknowledges the dynamics of international law and the +fact that international law develops according to a process of its own. + +History has taught us that treaties based on international law do not +usually come to an end by a formal repeal but succumb to the development +of events. They inevitably sink into oblivion. In specific instances +opinions may differ as to whether this is the case or not; but that does +not affect the basic truth of this statement. The militarization of the +Rhineland and the introduction of general conscription, the extent of +rearmament which Schacht approved of and strived for, the voluntary +“Anschluss” of Austria to Germany, which was also basically desired by +Schacht, all of these certainly are offenses against the meaning and +text of the above-mentioned pacts, particularly the Versailles Treaty. +If, however, such violations are only answered by formal protestations, +and otherwise very friendly relations continue to exist and honors are +even conferred upon the offending nation, and if agreements are +concluded which alter the basic stipulations of such a treaty, as for +instance the Naval Pact with Great Britain, the view is fully justified +that because of all this such a treaty is gradually reaching a state of +obsolescence and extinction, or at least there is cause for such a +subjective point of view. + +I beg you to consider that the prerequisite for the conclusion of an +armament pact, as for instance the Naval Pact with Great Britain, is the +military sovereignty of both nations. The denial of such sovereignty to +Germany was, however, one of the main aspects of the Versailles Treaty. +I do not wish to speak here about the justice or injustice of this +treaty. I know the Court’s wish, or rather prohibition, in regard to +this matter, and of course I shall observe it. But I must speak about +the legal possibility and therefore the innocence, criminally speaking, +of Schacht’s personal opinions on the question of treaty violation. Even +if, therefore, one still wished to defend the point of view that the +said treaties have not become obsolete, one cannot, at least as far as +its inherent honesty is concerned, doubt the justification of an opinion +to the contrary. But if this is recognized, these treaty violations no +longer provide any proof of the criminal intention of a war of +aggression. And that is all that matters. For the violation of treaties +in itself is not considered a punishable act by the Charter. Here, too, +Schacht can justify his good faith by referring to the same or similar +views on the part of leading foreign statesmen, in whom it is therefore +logically impossible to assume the existence of a suspicion as to a +desire for aggression on the part of Germany. Here again I must limit +myself to a few instances, since a complete enumeration would exceed the +time limit of this plea. + +The first of the violations of the Versailles Treaty is supposedly the +reintroduction of general conscription. With regard to this measure, the +British Foreign Secretary, Sir John Simon, with a statesman’s +far-sighted objectivity, gave the following reply, which was universally +made known in reports by the press and radio and which therefore is +valid as legal evidence: + + “There is no doubt that an agreed reduction of the armaments of + other big nations was to follow upon the forced disarmament of + Germany.” + +This remark contains a confirmation of the juridical point of view I +developed a while ago, in spite of the criticism of Hitler’s action that +follows. The same applies to the fact that the visit of Sir John Simon +and Mr. Anthony Eden to Berlin took place 8 days after this so-called +treaty violation, namely, on 24 March 1935. It would not have taken +place if this measure of Hitler’s had been considered abroad as +militarily aggressive. I will just mention in passing the history of the +treatment of this question by the Council of the League of Nations, +which is well known. Should Schacht, as a German and a German Minister, +judge it in a manner different from that of the foreign Governments? + +A second treaty violation by Hitler was the occupation of the Rhineland, +also in March 1935. This action did not only violate the Versailles +Treaty ... + +THE PRESIDENT: [_Interposing_] The date of the occupation of the +Rhineland was not March 1935, but March 1936. + +DR. DIX: I cannot ascertain that at the moment. + +The point in question is that this action took place, namely, the +occupation of the Rhineland. This action was not only a breach of the +Treaty of Versailles but also of the Locarno Pact, that is, of an +undoubtedly voluntarily contracted treaty. Two days later Mr. Baldwin +stated in the House of Commons, in a speech made public and therefore +valid as legal evidence, that, while Germany’s conduct could not be +excused, there was no reason to assume that this action contained a +threat of hostilities. Was Schacht, a German and a German Minister, to +take a different and more skeptical attitude in regard to the aggressive +significance of the act than foreign statesmen? And particularly when he +was forced to note the fact, which is now history and is universally +known, that 10 days after this breach of treaty the Locarno Powers, +except Germany, submitted to the Council of the League of Nations a +memorandum which proposed the reduction of the number of German troops +in the Rhineland to 36,500 men and only endeavored to avoid the +strengthening of the SA and SS in the Rhineland and the erection of +fortifications and airfields. Should not this memorandum be interpreted +as a ratification of an alleged breach of the treaty? + +A third breach of the treaty was the fortification of Helgoland, which +was hardly observed by the contracting parties, and merely called forth +from Mr. Eden, in the now famous public speech before the House of +Commons on 29 July 1936, the remark that it was not considered favorable +to increase the difficulties of the proceedings by individual questions +like the one under discussion. Was the German Minister Schacht to take +another and more rigorous attitude? + +And what about the terroristic annexation of Austria in March 1938 when, +moreover, Schacht was no longer Reich Minister for Economics? If foreign +countries had gathered from this action the conviction that Hitler was +preparing a war of aggression, they would not have abstained from +threatening to use force. Was the German Minister Schacht to hold a +different and stricter opinion? He did, in fact, have a different +opinion at the time and was already eagerly at work with Witzleben and +others to eliminate Adolf Hitler and his regime by means of a Putsch; an +effort on the part of these patriotic conspirators which was frustrated, +as the unequivocal testimony of the witness Gisevius has shown, because +Hitler was able to record one success after another in foreign politics. + +I merely remind you of the unequivocal evidence of Gisevius regarding +the effects of the Munich Agreement on the influence of the opposition +group of which Schacht was a leader; I remind you of the evidence of +Gisevius regarding the warnings and hints in this connection sent across +the German frontiers to responsible personalities of foreign countries. +Is it fair to require from the German Minister Schacht a more critical +attitude to those political developments than that adopted by foreign +countries whose interests had been injured? As we know from Gisevius, +from Vocke, and from all the affidavits submitted, he did have this +critical attitude from 1937 on, in which year he took to the dark ways +of a conspirator. I remind you of his first contact with the then +General Von Kluge. I could give many examples such as those just +mentioned. I do not criticize this attitude of foreign countries; that +is not for me to do, quite apart from the fact that I have complete +understanding for the pacifist attitude it reveals, which is fully aware +of its responsibilities. It is, however, my duty to point out that no +warlike intention can be imputed to Schacht on account of his opinions +and attitude, when the same opinions and the same attitude can be +identified as belonging to the foreign countries whose interests had +been injured. If foreign countries could entertain the hope of +maintaining further friendly relations with Hitler, the same right must +be conceded to Schacht as far as he claims it. He does not, however, +claim it for himself, at least not after the Fritsch crisis of 1938. + +After that time he, in contrast to the foreign countries, had a very +clear idea of the danger, which fact, according to the evidence of +Gisevius, is undeniable, and he personally risked his life and liberty +to maintain peace by attempting to overthrow Hitler. The fact that all +these Putsch actions before the war and after the outbreak of war were +unsuccessful cannot, according to the evidence submitted, be considered +his fault. The responsibility for the failure of this German resistance +movement does not lie with the latter but elsewhere, within and without +the German frontiers. I shall return to this later. + +There remains, therefore, the fact of rearmament as such. Here, too, I +can refer essentially to the statements Schacht made in justifying +himself during his cross-examination. This was exhaustive, and a +repetition would be superfluous. It is therefore also completely +superfluous to enter into an academic discussion as to whether Schacht’s +views were right; that is to say, whether it is correct that a certain +amount of military force sufficient for defensive purposes is necessary +for any country and was particularly necessary for Germany, and whether +he was correct in his opinion that the nonfulfillment by the parties to +the Versailles Treaty of the obligation to disarm justified the +rearmament of Germany. The sole point in question is whether these +opinions and motives of Schacht’s were honest, or whether he pursued +secret aggressive intentions under cover of this defensive armament. But +these proceedings have established absolutely nothing to disprove the +honesty of these opinions and motives. Of course, one can question the +fact whether the quotation “_si vis pacem, para bellum_” has absolute +validity; or whether objectively any pronounced rearmament does not +carry an inherent danger of war, since good armies with competent +officers naturally strive for a chance for real action. Of course, one +can defend the thesis that moral strength is stronger than any armed +strength. The cohesion of the British Empire and the world-wide +influence of the Vatican’s foreign policy could perhaps be cited as +proof of this. All these questions carry a certain relativity in +themselves; at any rate, one thing is certain: Even today in all large +countries of the world the warning is constantly repeated that one must +be militarily strong in order to preserve peace. Nations whose +individualism and love of liberty rejected general conscription and a +strong standing army now act to the contrary and honestly believe that +they thereby serve peace. Let us take as an example a nation whose love +of peace absolutely no one in the world, even the most mistrustful, can +question, namely, Switzerland. Yet this peace-loving nation has always +taken pride in maintaining the defense capacity of its people with the +very intention of protecting its freedom and independence in a peaceful +manner. One may academically call this idea of discouraging foreign +aggression by the maintenance of a sufficiently strong defensive army +imperialistic. It is, at any rate, honestly entertained by peaceful and +liberty-loving nations and perhaps serves the cause of peace more +effectively than many so-called antimilitaristic and pacifist doctrines. +This sound point of view has really nothing to do with militarism. +Whoever today recognizes this viewpoint as justified for great and small +nations cannot contest the honesty of this view on the part of Schacht +in the years 1935 to 1938. I have no more to say about this. + +I also need not give a wearisome enumeration of figures and make +specialized technical statements to the effect that this part of +rearmament which Schacht first financed with 9,000 million, and then +reluctantly with a further 3,000 million Reichsmark, was by no means +sufficient for a war of aggression, in fact, not even for an effective +defense of the German frontiers. The answers that the witnesses Keitel, +Bodenschatz, Milch, General Thomas, Kesselring, et cetera, have given to +this in their depositions and affidavits are available and have been +submitted to, or officially brought to the attention of, the Tribunal. +In this respect they are unanimously agreed that even at the outbreak of +war—that is, 18 months later—Germany was not sufficiently armed for an +aggressive war; that therefore, when Hitler led this nation into a war +of aggression in August 1939, it was not only a crime against humanity +but also against his own people, the people with whose leadership he was +entrusted. + +Therefore I also consider it superfluous to go into long discussions as +to whether Blomberg’s statement that Schacht was aware of the progress +of rearmament is correct, or the statement of Schacht and Vocke that +this was not so. I accept without further discussion the sincerity of +Blomberg’s statement. But since he had more to do with the technical +side of rearmament than the Reichsbank had, general experience would +seem to indicate that the memory of Schacht and Vocke is more reliable +on this point than Blomberg’s, to whom this report to the Reichsbank was +a matter of secondary importance for his department. For the Reichsbank +the desire to be informed about the technical progress of the armament +as well as about the financial expenditure was a very important matter. +One remembers such facts better than unimportant secondary matters. In +any case it is established that until the budget year 1937-38 only +21,000 millions were spent on armament, of which 12,000 millions were +financed by credits of the Reichsbank, and that, according to +Generaloberst Jodl’s statement of 5 June, on 1 April 1938 only 27 or 28 +divisions were ready, whereas in 1939 there were already 73 or 75 +divisions. + +It needs no expert to show that this volume of expenditure and armament +on 1 April 1938 was entirely insufficient for a war of aggression. +Indeed Hitler was of the same opinion when in his memorandum of August +1936, which has been submitted to the Court, and which was handed to +Speer in 1944, he pointed out, along with many derogatory remarks about +Schacht’s conduct of economic affairs, that 4 precious years had gone +by, that we had had time enough in these 4 years to determine what we +could not do, and that he hereby gave orders that the German Army must +be ready for action in 4 years, that is, in the course of the year 1940. + +I should like to remind the Court that after Schacht’s withdrawal as +President of the Reichsbank, 31,500 millions were spent on armament +during the two budget years 1938-39 and 1939-40. The issuing and +expenditure of money on armament therefore continued without Schacht, +and indeed to a considerably greater extent. Schacht had once written to +Blomberg that he was not a money-making machine. + +He exercised constant pressure on Blomberg along this line. I refer only +to his letter to Blomberg on 21 December 1935, which has been submitted +to the Tribunal. He exercised a restraining influence by means of +explanatory lectures to officers of the War Ministry and of the Armed +Forces Academy. He refused the railway loan of 1936 requested by the +Minister of Communications, which was indirectly in the interest of +armament; and he stopped the credits of the Reichsbank as early as the +beginning of 1937, concluding them by compromising on a final grant of +3,000 millions. He refused the credit which the Reich Minister of +Finance requested from him in December 1938. + +He created an automatic brake for armament expenditure through the mefo +bills, which from the technical and financial point of view was a +somewhat bold measure, although legally tenable. These served at first +to finance the armament expenditure but restricted further armament +expenditure after their expiration on 1 April 1939 because the Reich was +obligated to redeem them. Schacht’s foresight proved true. The increase +in employment brought such a rise in the state revenues that it would +not have been difficult to liquidate the mefo bills at their expiration +5 years later. Keitel’s statement has proved that during the budget year +beginning 1 April 1938, 5,000 million marks more were spent for armament +than during the preceding year, although as from 1 April 1938 the +Reichsbank credits had completely ceased. Half of the 5,000 millions +would have sufficed to redeem the mefo bills which matured during the +budget year beginning 1 April 1939. The use of this money for further +rearmament would have been avoided; but this was exactly what Schacht +intended. From the beginning he had limited the validity of the mefo +bills to 5 years; he stopped the credit assistance of the Reichsbank on +1 April 1939 in order to limit armament. It was impossible for Schacht +to foresee that Hitler would simply break a strict credit obligation and +not redeem the bills. These facts in themselves show that his attempts +to resign could have had no other reason than opposition to any further +armament, and the refusal to accept responsibility for it. In this sense +the assertion of the Prosecution that he wanted to evade responsibility +is completely correct. + +Nothing indicates that any other motives than those which are obvious +from the facts just mentioned caused him to make this attempt to +relinquish his duties. If the Prosecution maintains that the reason was +his antagonism to Göring, this is also correct insofar as Schacht was an +opponent of the Four Year Plan, of which Göring was the chief. That the +reason was rivalry of power is a pure supposition, an interpretation of +actual events which justifies the quotation: “Interpret to your heart’s +content; should you fail to explain, you will at least insinuate.” + +The Reichsbank memorandum of November 1938, which led to the dismissal +of Schacht and most of his collaborators including Vocke, is also +unequivocally and forcibly opposed to armament. It naturally had to +contain reasons for this which were derived from the departmental +jurisdiction of the Reichsbank. Its aim was obvious. Hence Hitler’s +remark, “This is mutiny.” The memorandum ends with the demand for +control of the capital and loan market as well as the management of +taxation by the Reichsbank. Compliance with this demand would have +deprived Hitler of every possibility of raising money for further +armament, and therefore this demand was unacceptable to him. Schacht and +his colleagues knew this. Accordingly, they deliberately sought a break +by this step. Schacht now bore no further responsibility. From now on he +could devote himself exclusively to the plans for a _coup d’état_ by the +conspiracy group to which he belonged. He became a traitor to Hitler. By +remaining Minister without Portfolio, he hoped to learn more about what +went on than if he resigned altogether; this was vital for the aims of +his conspiracy group. I shall return to this point later. + +The fact of armament, as such, therefore, proves absolutely nothing for +the assertion of the Prosecution that Schacht deliberately contributed +to the preparation of a war of aggression. Simultaneous economic +armament, however, belongs of necessity to armament in the modern sense. +On the German side this was already recognized for the first time at the +beginning of the first World War by two very important German Jews, the +founder of the Hamburg-America Line, Albert Ballin, and the great German +industrialist, Rathenau. This is the same Rathenau who made the +wonderful speech on peace during the Genoa Conference, which was +received with wild applause by the delegates of those very powers which +had opposed his country but 4 years previously as enemies, and who, as +German Foreign Minister, was the victim of an anti-Semitic outrage in +the early twenties. I probably can assume that the personality of Albert +Ballin is known to the Court. Both men recognized, at the very outbreak +of the first World War, the error of omitting economic mobilization. +Rathenau then organized the so-called War Raw Materials Department of +the War Ministry. The first Plenipotentiary General for War Economy, for +this is what he really was, was thus ideologically a pacifist; and +certainly since that time there is probably no mobilization plan by any +nation which does not provide for the purely military armament to be +accompanied by a corresponding economic preparation for war. Therefore, +the designation of a Plenipotentiary General for War Economy, even if he +had taken up his duties, which as the evidence demonstrates most +convincingly he never did but remained a dummy, does not show anything +in the way of proof that the intention to wage a war of aggression +existed. This post is equally necessary when arming for defense. The +same applies to the institution of the Reich Defense Council, the Reich +Defense Committee, _et cetera_. As such they are the same harmless, +matter-of-course factors. They have no incriminating value. Only their +misuse for the purpose of a war of aggression would be incriminating. +However, Schacht’s criminal intention in this respect has not been +established, nor has anything else been found. I therefore refrain from +going into details on this subject. + +In conclusion, the Prosecution sees something incriminating in the +so-called maintenance of secrecy regarding certain mobilization measures +and mobilization arrangements, as for example the second Reich Defense +Law. Here, too, a natural and worldly-wise way of thinking deprives +these findings of any incriminating character. All nations are +accustomed to treat mobilization and armament measures as secret. Upon +further consideration and after closer observation this practice can, of +course, be recognized as a very superfluous routine matter. Only plans +and technical details can be really kept secret. The fact of rearmament +as such can never be kept secret. The same applies to the existence of a +large body which is to serve the purpose of this rearmament. Either it +becomes known because it starts to function, or, like the ominous +Defense Council, it remains hidden and secret only because it does not +function. + +In the memoirs of a Czarist officer regarding his experiences in the +Russo-Japanese war I found the following humorous observation: + + “If I, as a member of the General Staff, wished an incident to + become known, I had it classified as ‘secret’ and my wish was + fulfilled. If I wished to keep something secret, which was + almost an impossibility, I unobtrusively gave it free + circulation and occasionally my wish was fulfilled.” + +One should not quibble in a vacuum; but if one wishes to find the truth, +one must take into account the teachings of experience based on hard +facts. + +Thus, the fact of the military activation of Germany after the seizure +of power by Hitler and the subsequent rearmament was never a secret to +the world. The main proceedings have produced a great deal of evidence +to this effect. We know the report of Consul General Messersmith; we +know his sworn testimony of 30 August 1945, submitted by the Prosecution +under Number 2385-PS, according to which the armament program—he speaks +of a giant armament program immediately following the seizure of +power—and the rapid development of the air program had been apparent to +everybody; it had been impossible to move in the streets of Berlin or in +any other city of importance in Germany without seeing pilots or +aviators in training. He expressly states, on Page 8 of his testimony, +that this giant German rearmament program was never a secret and was +quite publicly announced in the spring of 1935. + +I would like to remind you, amongst a great deal of other evidence, of +the remark of Ambassador Dodd, who contends that he pointed out to +Schacht that the German Government had bought high-grade airplanes from +American airplane manufacturers for 1 million dollars and had paid for +them in gold. Even if Ambassador Dodd perhaps made a mistake in this +detail, yet all this still proves that German rearmament—the extent of +which was surely even overestimated abroad at that time—must have been, +at the very best, an open secret. + +Therefore it is not even necessary to refer to the mutual visits of the +Chiefs of General Staffs, to which Milch and Bodenschatz testified, the +visits of the Chief of the British Intelligence Service, Courtney, the +permanent presence in Berlin of military attachés of nearly all +countries, in order to recognize that the so-called secret rearmament +was quite public and only safeguarded a few technical secrets, as did +rearmament in every state. The outside world knew of the existence of +this rearmament and, in any case, considered it to be compatible with +world peace longer than Schacht himself did. + +It is not for me to criticize the attitude of the outside world, nor is +it my intention to do so. Each part on the stage of life has its own +rules of tact, including the part played by the defendant and his +defense counsel. Their task is to establish a defense, and not to bring +charges and make an attack. In connection therewith I expressly wish to +guard against a possible misunderstanding to the effect that I want to +appear as an accuser, a critic, or a know-it-all in any way. I present +all this only from the aspect of my submission that the indirect +circumstantial evidence submitted by the Prosecution is not conclusive. + +Furthermore, the Prosecution argues that Schacht was a member of the +Reich Cabinet, at least as Minister without Portfolio from the time of +his dismissal in January 1938, as Minister of Economics, until January +1943. The Prosecution makes the Reich Cabinet responsible—criminally +responsible—for the belligerent invasions of Hitler. This argumentation +has an attractively convincing power for somebody who starts with the +normal concept of a Reich Cabinet. The effect disappears once it has +been ascertained that the so-called Reich Cabinet was not a cabinet in +the usual sense applying to a constitutional state. + +Judgments should not, however, be based on outward appearances and +form—not on fiction, but only on actually established conditions. This +makes it necessary to penetrate sociologically the nature of the Hitler +regime and to examine whether a member of the Reich Cabinet, hence of +the Reich Government as such, must in this capacity bear the same +criminal responsibility as if he were in any other normal state set-up, +be it a democratic republic or a democratic monarchy or a constitutional +monarchy or a monarchy which, although absolute, was nevertheless +founded on law, or some other constitutionally based set-up which bears +the character of a somehow lawful state based on a constitution. We are +thus obliged to investigate the actual sociological structure of the +Hitler regime. We have heard an account on the Führer Order +(Führerbefehl) in this connection by Professor Jahrreiss. Here, too, I +want to avoid repetition and would only state the following in +abbreviated form: + +I want to say first of all, in order to avoid once more the danger of a +misunderstanding, that when I speak of the Hitler regime here I do so +without referring in any way to the persons sitting in the dock; +naturally with the exception of Schacht. For the latter, I do so in the +negative sense, for he did not belong to the regime as such, in spite of +the fact that he was a member of the Reich Government and President of +the Reichsbank. I leave the question completely open as to whether any +of the other defendants should be considered a member or supporter of +the regime. That question is subject only to the judgment of the +Tribunal and the evaluation of the defense counsel for each case. + +At the very beginning of my argument I indicated that, even for a person +who lived in Germany during the Hitler regime, it is difficult to +differentiate between the ostensible distribution of power and the +actual underlying influence, since this requires a great deal of +political intuition; it is bound to be impossible to judge for people +who lived outside Germany and can only be arrived at through the +findings resulting from the presentation of evidence before this +Tribunal. We have established here that the Reich Cabinet, whom Hitler +termed a club of defeatists, was convened for the last time in 1938 and +that it met then only to receive a communication from Hitler. For actual +deliberation and the passing of a resolution it had last been convened +in 1937. We have also established that Hitler deliberately kept all news +of political importance from the Reich Cabinet, as is proved quite +unequivocally by the so-called Hossbach minutes of 10 November. During +this meeting the Führer called the attention of the chiefs of the +branches of the Wehrmacht and the Reich Foreign Minister, who were +present—Schacht, of course, was not present and did not learn about the +Hossbach minutes until he came here—to the fact that the subject for +deliberation was of such great importance that it would result in full +Cabinet meetings in other countries but that, just because of its great +significance, he had decided not to discuss the matter with the Reich +Cabinet. + +Thus, at least after 1937, the members of the Reich Cabinet can no +longer be considered the architects and supporters of the political +aspirations of the Reich. The same holds true for the members of the +Reich Defense Council, which as such was nothing but a bureaucratic and +routine affair. Accordingly Hitler, in the spring of 1939, explicitly +excluded the Reich Defense Council also from further war preparations, +saying: “Preparations will be made on the basis of peacetime +legislation.” + +Despotism and tyranny showed themselves in unadulterated form as from +1938. It is a characteristic quality of the Fascist as well as the +National Socialist regime, to have the political will concentrated in +the head of the Party, who with the help of this Party subjugates and +becomes master of the State and the nation. Justice Jackson also +recognized this when he stated, on 28 February 1946, that the apex of +power rested with a power group outside the State and the Constitution. + +To speak, in the case of such a regime, of a responsible Reich +Government and of free citizens who, through some organizations or +others, could exert influence on the formation of the political will, +would be to proceed from entirely wrong hypotheses. Intangible elements +devoid of all sense of responsibility usually gain influence on the head +of the State and Party in such regimes. The formation of the political +will can be recognized in its crystallized form only in the head of the +State himself; all around him is shrouded in a haze. It is another +characteristic of such a regime—and this again belongs to its inner +untruthfulness—that beneath the surface of seemingly absolute harmony +and union several power groups fight against each other. Hitler not only +tolerated such opposing groups, he even encouraged them and made use of +them as a basis for his power. + +One of the defendants spoke here of the unity of the German people +during this war in contrast with the first World War, but I must stress +in reply that hardly at any time during its history was the German +nation so torn internally as it was during the Third Reich. The apparent +unity was merely the quiet of a churchyard, enforced through terror. The +conflicts between the individual high functionaries of the German +people, which we have ascertained here, reflect the inner strife-torn +condition of the German nation, carefully concealed through the terror +wielded by the Gestapo. + +To give only a few examples: We were confronted here with the conflicts +between Himmler and Frank, between Himmler and Keitel, between Sauckel +and Seldte, between Schellenberg and Canaris, between Bormann and +Lammers, between SA and SS, between Wehrmacht and SS, between SD and +Justice, between Ribbentrop and Neurath, and so on and so forth. The +list could be continued ad libitum. + +Even ideologically the Party in itself was divided into pronounced +oppositional groups, which was shown already at the very beginning of +the presentation of evidence by Göring’s testimony. These oppositions +were fundamental, and they were not bridged by Hitler but rather +deepened. They were the instrument from which he elicited his power. The +ministers were not responsible governing persons, as in any other state +where law is the foundation; they were nothing but employees with +specialized training who had to obey orders. And if a departmental +minister, as in the case of Schacht, did not wish to submit to this, it +resulted in conflict and resignation from his post. + +For this very reason no minister could in the long run take full +responsibility for his department, because he was not exclusively +competent for it. A minister, in accordance with constitutional law, +must first of all have access to the head of State; and he must have the +right to report to him in person. He must be in a position to reject +interference and influences coming from irresponsible sources. None of +the characteristics applicable to a minister apply to the so-called +ministers of Adolf Hitler. The Four Year Plan came as a surprise to +Schacht. Similarly, the Minister of Justice was surprised by so +extremely important a law as the Nuremberg Decrees. Ministers were not +in a position to appoint their staffs independently. The appointment of +every civil service employee required the consent of the Party +Chancellery. The intervention and influence of all possible agencies and +persons of the various Chancelleries—Chancellery of the Führer, Party +Chancellery, _et cetera_—asserted themselves. They, however, were +agencies placed above the ministries and they could not be controlled. +Special delegates governed over the heads of the departmental chiefs. +Ministers, even the Chief of the Reich Chancellery, as we have heard +from Lammers, might wait for months for an audience, while Herr Bormann +and Herr Himmler had free access to Hitler. + +The anticamera and camarilla, indispensable accessories of all +absolutism, have at all times been difficult to fathom as to the +personal responsibility of the individual circles of which they are +composed. The irresponsible influences exerted over and affecting Hitler +were absolutely intangible. + +Generaloberst Jodl described to us here how Hitler’s sudden actions, +caused by some urge and attended by the most serious consequences, could +be traced back to influences of an entirely obscure and unknown sort, +such as pure chance, conversations at a tea party, or the like. For the +objective facts this bears out what I already mentioned in the +beginning. And so this state of affairs precludes even the possibility +of the planning of a crime such as a war of aggression within a clearly +defined circle of persons, much less within the so-called Reich +Government. But where no planning is possible, there can be no plot, no +conspiracy either, the most striking characteristic of which is this +very common planning, even though the participants have different and +varied roles. Let us assume the broadest conceivable interpretation of +the ostensible exterior characteristics of the conspiracy. I am +following Justice Jackson’s line of reasoning. He who takes part in a +counterfeiters’ plot is guilty of conspiracy, even through he may have +written only a letter or acted as bearer of the letter. He who +participates in a plot for robbing a bank is guilty of murder if, in the +course of the execution, not he but a third party in the group of +planners commits murder. At all times, however, the prerequisite is a +body of persons capable of evolving a common plan. Such a thing was not +possible for Adolf Hitler’s ministers; it was not possible at all under +Hitler. From this it follows that no conspirator could participate in +Hitler’s crime of having forced upon his own people and the world a war +of aggression, except those who served Hitler as assistants. + +The forces at work in the Third Reich as depicted thus permit in thesis +only the assumption that there existed a punishable complicity or +punishable assistance, not, however, a punishable group offense such as +a conspiracy. Whether such complicity or such punishable aid in the +crime of a war of aggression committed by Hitler exists for individual +defendants personally can only be investigated and decided in each +individual case. It is my task to investigate this only in the case of +Schacht. + +A collective crime such as conspiracy is, however, excluded as +inconceivable and impossible in the light of the actual conditions as +already established. But even if this were not the case, the subjective +aspect of the deed is completely lacking in the case of Schacht. Even if +the objective facts of a conspiracy were to exist for a certain circle +of the accused and even with the most liberal interpretation of the +concept of conspiracy, it is still essential that the conspirator should +include the plan of conspiracy and the aims of the conspiracy within his +will, at least in the form of _dolus eventualis_. + +The strict facts constituting a conspiracy can best be illustrated by +comparison with a pirate ship. In reality every crew member of the +pirate ship, even a subordinate, is guilty and an outlaw. But a person +who did not even know that he was on a pirate ship but believed himself +to be on a peaceful merchant vessel, is not guilty of piracy. He is +equally innocent if, after realizing the pirate character of the ship, +he has done everything he could to prevent any piracy, as well as to +leave the pirate ship. Schacht did both. + +As far as that is concerned, research on conspiracy also recognizes that +a person is not guilty who has withdrawn from the conspiracy by a +positive act before attainment of the goal of the conspiracy, even if he +did co-operate previously in the preparation of the plan for conspiracy, +which was not the case with Schacht. In this connection, I also consider +as being in my favor Mr. Justice Jackson’s answer when I put up for +discussion, during Schacht’s interrogation, the question whether the +persecution of the Jews is also charged to Schacht. Mr. Justice Jackson +said, yes, if Schacht had helped prepare the war of aggression before he +withdrew from this plan for aggression and its group of conspirators and +went over unreservedly to the opposition group, that is, to the +conspiracy against Hitler. This desertion would then be the positive act +which I have mentioned whereby a person at first participating in a +conspiracy would separate himself from it. + +This legal problem does not even enter into consideration as far as +Schacht is concerned, because the evidence has shown that he never +desired to participate in the preparation for a war of aggression. + +As already stated, this accusation of the subjective fact of the +conspiracy has not been proved either by direct or by indirect evidence. +For the events up to the year 1938 I can point to the statements made +previously. It has been proved that from 1938 on, at the latest, Schacht +fought the bitterest struggle imaginable against any possibility of war +in such a form that he attempted to overthrow the person responsible for +this risk of war and this will for aggression and, thereby, the regime. + +Your Lordship, I have now arrived at the end of a section, if Your +Lordship would care to announce a recess now. + +THE PRESIDENT: We will adjourn. + + [_A recess was taken._] + +DR. DIX: I beg your pardon for being late, but I was detained at the +entrance. + +Gentlemen of the Tribunal, I have arrived at the discussion of the +beginning of the opposition by means of the various Putsch actions. + +It is quite irrelevant and of incidental importance to investigate +whether the attempts at a Putsch, which occurred at shorter or longer +intervals during the war, would have been instrumental in securing +better peace terms for Germany. This is absolutely meaningless for the +criminal evaluation of Schacht’s course of action. Doubtlessly, +according to human reckoning, a successful prewar Putsch would have +prevented the outbreak of war; and a successful Putsch after the +outbreak of war would at least have shortened the duration of the war. +Therefore such skeptical considerations about the political value of +these Putsch attempts do not disprove the seriousness of the plans and +intentions for a Putsch, and that is all that counts in a criminal legal +evaluation. For it proves first of all that a person who has been +pursuing them since 1938, and even since 1937, if one includes the +attempt with Kluge, could not possibly previously have had warlike +intentions. One does not try to overthrow a regime because it involves +the danger of war, if previously one has oneself worked toward a war. +One does so only if by all one’s actions, even that of financing +armament, one wished to serve peace. For this reason these repeated +Putsch attempts on the part of Schacht do not have any legal +significance of a so-called active repentance for previous criminal +behavior but constitute _ex post_ proof that he cannot be accused even +before 1938 of deliberately working for war, because it would be +logically and psychologically incompatible with Schacht’s activity of +conspiracy against Hitler. + +These Putsche thus prove the credibility of Schacht in respect to his +explanation of the reasons and intentions which caused him actively to +enter the Hitler Government and to finance armament to the extent to +which he did, namely, to the amount of 12,000 millions. They prove _ex +post_ the purely defensive character of this financing of armament; they +prove the credibility of Schacht’s contention of having tactically +achieved, in addition, a general limitation of armament. If one does +believe this explanation of Schacht’s, and I think one must believe it, +then one cannot speak of Schacht’s co-operation in instigating a war of +aggression. + +This credibility is also proved by another circumstance. Schacht +originally contradicted the testimony of Gisevius and my questions +following the same line, that he had admired Hitler at the beginning and +had unreservedly considered him a brilliant statesman. He described this +in his interrogation as an erroneous assumption. He said that he had +recognized from the beginning many of Hitler’s weaknesses, especially +the fact of his poor education, and had only hoped to be in a position +to control the disadvantages and dangers resulting from them. By this +contradiction Schacht made his defense more difficult; but he is wise +enough to have recognized this. Thus what he deliberately forfeited from +the point of view of evidence which would serve his defense, he gains +with regard to his credibility upon objective evaluation of evidence +based on psychological experience. For a person who serves the truth by +contradiction deserves increased credibility, when the suggested untruth +or the half-truth is more advantageous to him technically and tactically +by way of evidence. + +There should be no doubt about Schacht’s leading role in the activities +of the various conspiracies about which Gisevius testified on the very +basis of this credible testimony. During the cross-examination Mr. +Justice Jackson confronted Schacht with photographs and films which +superficially show a close connection with Hitler and his paladins. This +can only have been done in order to throw doubt on the earnestness of +his active opposition to Hitler. I must, therefore, deal briefly with +this point of the photographs and films. Mr. Justice Jackson has coupled +this accusation with another one by quoting speeches ostensibly +expressing great devotion on the part of Schacht toward Adolf Hitler +even during the Putsch period. This accusation is on the same level. I +believe that this argument cannot stand up either before the experiences +of life nor before what we can observe of history. History teaches us +that conspirators, especially if they belong to the closer circle of +dignitaries of the threatened head of state, show special devotion for +purposes of camouflage. Nor has it ever been observed that such people +impart their intentions to the prospective victim in a spirit of +contradictory loyalty. One could cite many examples of this from +history. + +There exists an effective German drama by a certain Neumann which +concerns itself with the murder of Czar Paul by his first Minister, +Count Pahlen. The Czar believes to the very end in the ostentatious +devotion of Count Pahlen, even while the latter is already sharpening +his knife. And the historical documents in existence include a note by +Count Pahlen to the Russian Ambassador in Berlin, immediately before the +assassination, in which Count Pahlen persists in speaking about “_Notre +auguste Empereur_,” and so forth. Significantly, this drama bears the +title _The Patriot_. + +Thus, there is a higher patriotism than the merely formal loyalty of a +servant of the nation. It would be closer to the psychological truth if +this presumptive devotion, assumed for the sake of appearances, and the +assurances of loyalty during this period were judged more in favor of +the objective credibility of Schacht’s explanations than _vice versa_. +As a conspirator, he had to camouflage himself especially well. To a +certain degree this had to be done by practically everyone who lived +under this regime in Germany. As far as the photographs are concerned, +it is probably an inevitable consequence of every social and +representative participation in a body that one becomes a victim of the +camera along with the members of the body whether one likes it or not. A +member of a Government cannot always avoid being photographed with these +people on the occasion of their meetings. As a result we have pictures +that show Schacht between Ley and Streicher and the scene in the film +showing the reception of Hitler at the railroad station. Viewed ex post, +these pictures give no pleasure to the observer, and certainly not to +Schacht either. But they do not prove anything. In a natural evaluation +belonging to a normal average experience of life, I consider these +pictures without any value as evidence, either _pro_ or _contra_. + +Foreign countries, too, through their prominent representatives, had +social intercourse with Adolf Hitler’s Government, and this not only +through their diplomatic corps. I wish to assure you that the Defense is +in a position to produce pictures of a much more grotesque sort which do +not seem nearly as natural as Schacht being photographed together with +men who, after all, were his fellow dignitaries in the Third Reich. To +produce such pictures, however, might not be very tactful on the part of +the Defense; yet should it be necessary to investigate the truth in all +seriousness, a defense counsel might have to take upon himself the odium +of indiscretion. I do not believe that there is any need for me to do so +in this case, because the irrelevance and insignificance of such a +presentation of evidence through pictures taken on state occasions of +the Third Reich seems to me to be obvious. + +The only incriminating point pressed by the Prosecution which is left +for me to argue now appears to be that Schacht, after his retirement as +Minister of Economics and even after his retirement as President of the +Reichsbank in January 1939, remained Minister without Portfolio until +1943. Schacht declared that this had been stipulated by Hitler as a +condition for his release from the Ministry of Economics. Hitler’s +signature, as that of the head of the State, was necessary for his +dismissal. Had Schacht refused to remain as Minister without Portfolio, +he would surely have been arrested sooner or later as a political +suspect and thus been deprived of all possibility of action against +Hitler. The witness Gisevius has testified as to the discussions at that +time between him and Schacht concerning the continuation of Schacht’s +function as Minister without Portfolio. In these deliberations the idea +was quite justly considered important that Schacht could be of more use +to the group of conspirators as a scout or an outpost if he remained in +this position, to outward appearances at least, within the Reich +Government. Even as Minister without Portfolio, Schacht remained exposed +to great danger, as is shown by his and Gisevius’ declarations and as +becomes obvious from Ohlendorf’s statement that Schacht already in 1937 +was on the black list of the State Police. + +How much Hitler feared Schacht is proved by his subsequent remarks to +Speer, which have been discussed here, particularly his remarks about +Schacht after the attempted assassination on 20 July. I would also +remind you once more of Hitler’s memorandum of 1936, which he gave to +Speer in 1944 and which shows that he saw in Schacht a saboteur of his +rearmament plans. It has been declared and proved by Lammers that +Schacht tried later on to get rid even of this nominal position. Lammers +and Schacht have proved furthermore that this position of Minister +without Portfolio was without any special importance. Hence my reference +to him as an officer with assimilated rank, that is, an officer without +command authority, a sham officer. Schacht could not give up the +position unless there was a row, and the same held true of his position +as Reichsbank President. Schacht, therefore, had to maneuver in such a +way that he would be thrown out. He succeeded in this, as I explained, +as Reichsbank President through the well-known memorandum of the +Directorate of the Reichsbank and the refusal of credits by the +Reichsbank in November 1938 contained therein. As far as his position of +Minister without Portfolio was concerned, he succeeded through his +defeatist letter of November 1942. In the meantime he made use of the +time for the attempted _coup d’état_ in autumn 1938 and for the various +other attempted _coups d’état_ leading up to that of 20 July 1944, which +finally caused him to be put in a concentration camp. + +A criminal reproach can on no account be made against him in his +position as Minister without Portfolio. For his proved conspiratorial +activity against Hitler during all this time eliminates by force of +logic the supposition that he had furthered Hitler’s war plans and war +strategy during this time. In any event, we can only raise—and even +that only in the vacuum of abstraction—a political reproach against the +Schacht of the years 1933-37. But this, too, is fully compensated by the +extraordinarily courageous attitude of Schacht after this period. To +obtain its just evaluation, may I remind you of the interesting +statement of Gisevius to the effect that he, who had at first looked +with a certain skepticism upon Schacht’s original attitude, not in a +criminal but in a political sense, had later become completely +reconciled with Schacht by the extraordinary courage which Schacht +displayed as opponent and conspirator against Hitler since 1938. I am of +the opinion, therefore, that the fact that Schacht remained as Minister +without Portfolio does not incriminate him either directly or +indirectly, neither according to penal law, which is out of the +question, nor morally, if one takes into consideration his behavior as a +whole, his motives, and the accompanying circumstances and conditions. + +If the Prosecution now finally argues, on the basis of the text of the +afore-mentioned memorandum by the Directorate of the Reichsbank, that an +opposition to war is not evident from the memorandum, but only technical +reflections on finance and currency, then I have only to refer in this +respect to my earlier statements and the testimony of Vocke. The +presentation of facts by Schacht himself would not even be necessary to +refute this argumentation. Vocke in his capacity as closest collaborator +declared quite unequivocally that Schacht wished to limit and sabotage +rearmament from the moment when he recognized that it was becoming a +potential war danger. The sworn affidavit of Hülse and the sworn +affidavits of all the collaborators of Schacht in the Reich Ministry of +Economics tally with the testimony of Vocke in this respect. I need not +quote them individually. They are known to the Tribunal. The Tribunal +does not need the commentary of a defense counsel on them; they speak +for themselves. If the Prosecution now finally bases its argument on the +text of the memorandum which, it is true, actually only deals with +financial problems, then again I cannot suppress the remark that such an +argumentation moves in a vacuum insofar as one does not take the +experiences of history and the general experiences of life into +consideration. Naturally, as I have already said, the Directorate of the +Reichsbank could only bring up arguments from their department, +particularly so in dealing with a Hitler. One says one thing while +meaning another. + +If the Directorate of the Reichsbank, along with their President, +Schacht, had revealed their true purpose in this memorandum, namely, to +avert the danger of war and to combat Hitler’s will of aggression, then +they would have deprived themselves of the effect of technical +departmental influence. Hitler very well understood the purpose of this +memorandum when he shouted, after reading it: “That is mutiny!” With +this, Hitler recognized the only thing that can be said of Schacht as +conspirator: He was never a mutineer and conspirator against world +peace; but, insofar as he was a conspirator and mutineer, he was so only +against Adolf Hitler and his regime. + +Again in this case I must ask the High Tribunal to turn their attention +to Appendix Number II, which I must insert at this moment, because the +matter that is dealt with here did not reach me for translation until +after I had submitted my final speech. + +I said that Schacht, insofar as he was a conspirator, was so only +against Hitler. As such, he was the subject of ironical belittling by +Generaloberst Jodl and my colleague Nelte through the epithet, +“frock-coat and drawing-room revolutionary.” Now history teaches that +the quality of the tailor does not play any role in the case of the +revolutionary. And as far as the drawing room is concerned, shacks have +no revolutionary precedence over palaces. I would just recall the +political drawing rooms of the great French Revolution or, for example, +the elegant officers’ club of the select Preobrashensk regiment under +many a Czar. Should the Gentlemen of the Tribunal be of the opinion that +Schacht and his accomplices themselves should have done the shooting, +then all I can say is that things were not as easy as all that. Schacht +would have loved to do the shooting himself; he proclaimed that here +emphatically. But it was not possible for him to do so without +possessing the power to master the attendant confusion, thereby making +the attempt a revolutionary success. Thus generals with troops were +necessary. I do not wish to repay Generaloberst Jodl with the same coin +and shall therefore refrain from saying “a necessary evil.” + +The further reproach of the basic lack of working-class elements to +strengthen the Putsche is contradicted by the social composition of the +revolutionaries of 20 July. As I stated before, all this is irrelevant +for the decision of the Tribunal. But my client is morally entitled to +expect his defense counsel not to let this ironical thrust pass, +especially since it was delivered in the limelight of public opinion. + +In summing up I may say: After the elections in July 1932 it was certain +that Hitler was able and bound to seize power. Previous to this Schacht +had particularly warned the foreign countries of this development, and +thus he had not contributed to it. After the seizure of power only two +roads were open to him, as to every German: He either had to estrange +himself or to enter the Movement actively. The decision at these +crossroads was a purely political one without any criminal aspect. Just +as we respect the reasons which caused the foreign countries to +collaborate with Hitler much more intensively and in a more pro-German +way than with the previous democratic Governments of Germany, we must +recognize the good faith of all those Germans who believed themselves +able to serve the country and humanity better by remaining in the +Movement, that is, within the Party or the apparatus of officialdom, +because of the greater possibilities of exerting their influence, than +by grumbling and keeping aloof. To serve Hitler as minister and +President of the Reichsbank was a political decision, about the +political correctness of which one can argue _ex post facto_ but one +which certainly lacked any criminal character. Schacht has always +remained loyal to the motivating reason for his decision, namely, to +combat any radicalism from an influential position. Nowhere in the +world, which knew his oppositional attitude, could he see any signs of +warning or support. He saw only that the world trusted Hitler much +longer than he himself did and permitted Adolf Hitler to gain honors and +foreign political successes, which hampered Schacht’s work which had +already for a long time been directed toward removing Adolf Hitler and +his Government. He led this struggle against Adolf Hitler and his +Government with a courage and determination which must make it appear a +pure miracle that not until after 20 July 1944 did fate overtake him, +when he was sent to a concentration camp and was in danger of losing his +life either through the Peoples’ Court or through a spectacular act of +the SS. He is sufficiently wise and self-critical to realize that from a +purely political angle the picture of his character will be adjudged +diversely in history, or at least in the immediate future, according to +favor or hatred of the parties. He humbly resigns himself to the +judgment of history, even if one historian or another will label his +political line as incorrect. But with the pride of a good conscience he +faces the judgment of this High Tribunal. He stands before his judges +with clean hands. He also stands before this Tribunal with confidence, +as he has already manifested in a letter which he addressed to this +Tribunal before the beginning of the proceedings, in which he states +that he is grateful to be able to expose before this Tribunal and before +the whole world his actions and doings and their underlying reasons. He +stands before this Tribunal with confidence because he knows that favor +or hatred of the parties will have no effect on this Tribunal. While +recognizing the relativity of all political actions in such difficult +times, he remains sure of himself and full of confidence with regard to +the criminal charges which have been raised against him. Whoever would +be found guilty of being criminally responsible for this war and the +atrocities and inhuman acts committed in it, Schacht, according to the +evidence which has been given here with minute exactness, can confront +that culprit with the words which Wilhelm Tell flings in the face of the +emperor’s assassin, Parricida: “I raise my clean hands to Heaven, and +curse you and your deed!” + +I therefore request the findings to be established to the effect that +Schacht is not guilty of the accusation which has been raised against +him and that he be acquitted. + +THE PRESIDENT: I call on Dr. Kranzbühler for the Defendant Dönitz. + +FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for the Defendant Dönitz): Mr. +President, Gentlemen of the Tribunal: “War is a cruel thing, and it +brings in its train a multitude of injustices and misdeeds.”[2] With +these words of Plutarch’s, Hugo Grotius begins his examination of +responsibility for war crimes; and they are as true today as they were +2,000 years ago. Acts constituting war crimes, or considered as such by +the opponent, have at all times been committed by belligerents. But this +fact was always held against the vanquished parties and never against +the victors. The law which was applied here was necessarily always the +law of the stronger. + +While more or less stable rules have been governing land warfare for +centuries, in naval warfare the conceptions of the belligerents with +regard to international law have always clashed. No one knows better +than the British statesmen to what extent these conceptions are dictated +by national or economic interests. I refer in this respect to noted +witnesses such as Lord Fisher and Lord Edward Grey.[3] Therefore, if +ever in history a naval power would have had the idea of prosecuting a +defeated enemy admiral, based on its own conception of the rules of +naval warfare, the sentence would have been a foregone conclusion from +the very indictment. + +At this trial two admirals are under indictment for a naval war which +has been termed criminal. Thus the Tribunal is confronted with a +decision regarding conceptions of law which are necessarily as divergent +as the interests of a naval power and a land power. It is not only the +fate of the two admirals which depends upon this decision. It is also a +question of personal honor to hundreds of thousands of German seamen who +believed they were serving a good cause, and who do not deserve to be +branded by history as pirates and murderers. It is for these men, the +living as well as the dead, that I feel bound by a moral obligation to +reject the accusations raised against German naval warfare. + +What are these accusations? They are divided into two main groups: +Unlawful sinking of ships and deliberate killing of shipwrecked +personnel. I shall deal first with the accusation of the illegal sinking +of ships. + +Two reports by Mr. Roger Allen, of the British Foreign Office, made in +the autumn of 1940 and spring of 1941, form the nucleus of that +accusation. I do not know to whom and for what purpose these reports +were made. According to their form and content they appear to serve +propaganda purposes, and for that reason alone I consider them to have +little value as evidence. Even the Prosecution submitted only part of +the accusations made therein. The reports trace only one-fifth of the +total number of supposedly unlawful attacks back to submarines, whereas +four-fifths are ascribed to mines, airplanes, or surface craft. The +Prosecution omits these four-fifths, and this reticence may be explained +by the fact that the use of these combat means on the British side +differed in no way from that on the German side. + +With regard to the use of submarines, however, there does seem to exist +a difference between the principles followed in Germany’s conduct of the +naval war and that of our enemies. At any rate, the public in enemy +countries and in many neutral countries believed so during the war, and +partly still believes it today. Propaganda dominated the field. At the +same time the vast majority of all critics neither knew exactly what +principles applied to German U-boat warfare, nor on what factual and +legal foundations they were based. It shall be my task to attempt to +clarify this. + +The reports by Mr. Roger Allen culminate in the assertion that the +German U-boats, beginning with the summer of 1940, torpedoed everything +within range. Undoubtedly, the methods of submarine warfare gradually +intensified under the pressure of the measures directed against Germany. +This war, however, never degenerated into an orgy of shooting governed +only by the law of expediency. Most of what might have been expedient +for a U-boat was left undone to the last day of the war because it could +only be regarded as legally inadmissible, and all measures of which +Germany in her conduct of naval warfare is being accused today by the +Prosecution were the result of a development in which both sides took +part through measures and countermeasures, as occurs in the course of +every war. + +The London Protocol of 1936 formed the legal basis for German submarine +warfare at the beginning of this war. These regulations were +incorporated verbatim into Article 74 of the German Prize Ordinance, +which even Mr. Roger Allen calls a reasonable and not inhuman +instrument. This Prize Ordinance was sent in 1938 in draft form to the +two U-boat flotillas and to the U-boat training school and served as a +basis for the training of commanders. Stopping and examining merchant +vessels was performed as a tactical task. In order to facilitate for the +commander in economic warfare the quick and correct evaluation of his +legal position towards ships and cargoes of the enemy and of neutral +countries, the prize disc was constructed, which through simple +manipulations indicated the articles of the Prize Ordinance to be +applied. Thus, insofar as preparations had been made at all for economic +warfare by submarines they were based exclusively on the German Prize +Ordinance, and thus on the London Protocol. + +The German High Command actually did adhere to this legal foundation in +the initial stages of the war. The combat instructions for U-boats of 3 +September 1939 contained clear orders to the effect that submarine +warfare was to be carried on in accordance with the Prize Ordinance. +Accordingly, sinkings were permissible only after stopping and examining +the ship, unless it attempted to escape or offered resistance. Some +examples were submitted to the Tribunal, from the abundance of available +instances, showing the chivalrous spirit in which the German submarine +commanders complied with instructions given. In particular, assistance +afforded to the crews of ships lawfully sunk, after having been stopped +and examined, occasionally reached a point where it could scarcely be +justified on military grounds. Lifeboats were towed over long distances, +whereby the few available U-boats were diverted from their combat +mission. Enemy ships which might have been sunk lawfully were permitted +to go free in order to send the crews of ships previously sunk to port +aboard them. It is therefore only correct that Mr. Roger Allen stated +that the German U-boats, during the first weeks of the war, adhered +strictly to the London regulations. + +Why was this practice not kept up? Because the conduct of the enemy made +such a procedure militarily impossible, and at the same time created the +legal prerequisites for its modification. + +I shall consider the military side first. From the very first day of the +war, U-boat reports reached the Flag Officer of U-boats and the Naval +Operations Staff stating that hardly an enemy ship submitted voluntarily +to being stopped and examined. The merchant vessels were not content +with attempting to escape through flight or by changing their course and +bearing directly down upon the U-boat in order to force it to dive. +Every U-boat sighted was at once reported by radio; and subsequently, in +the shortest space of time, attacked by enemy airplanes or naval forces. +However, it was the arming of all enemy merchant vessels that settled +the matter. As early as 6 September 1939 a German U-boat was shelled by +the British steamship _Manaar_, and that was the starting signal for the +great struggle which took place between the U-boats, on the one hand, +and the armed merchant vessels equipped with guns and depth charges, on +the other hand, as equal military opponents. + +In order to show the effect of all the measures taken by the adversary, +I have presented to the Tribunal some examples which I do not wish to +repeat. They show unequivocally that further action against enemy +merchant ships in accordance with the Prize Ordinance was no longer +feasible from the military standpoint and meant suicide for the +submarine. Nevertheless, the German command for weeks on end continued +to act according to the regulations governing the Prize Ordinance. Only +after it was established that action on the part of enemy merchant +ships—especially armed action—no longer took the form of individual +measures but of general instructions, was the order given on 4 October +1939 to attack all armed enemy merchant ships without warning. + +The Prosecution will perhaps take the standpoint that, in lieu of this, +submarine warfare against armed merchant vessels should have been +discontinued. In the last war the most terrible weapons of warfare were +ruthlessly employed by both sides on land and in the air. In view of +this experience the thesis can hardly be upheld today that in naval +warfare one of the parties waging war should be expected to give up +using an effective weapon after the adversary has taken measures making +the use of it impossible in its previous form. In any case such a +renunciation could only be considered if the novel utilization of the +weapon were undeniably illegal. But this is not the case for the +utilization of German submarines against enemy merchant shipping, +because the measures taken by the enemy changed not only the military +but also the legal situation. + +According to German legal opinion a ship which is equipped and utilized +for battle does not come under the provisions granting protection +against sinking without warning as laid down by the London Protocol for +merchant ships. I wish to stress the fact that the right of the merchant +ship to carry weapons and to fight is not thereby contested. The +conclusion drawn from this fact is reflected in the well-known formula: +“He who resorts to weapons must expect to be answered by weapons.” + +During cross-examination the Prosecution referred to this interpretation +of the London Protocol as fraudulent. It admits only the closest literal +interpretation and considers the sinking of a merchant ship as +admissible only if the latter has offered active resistance. It is not +the first time that fundamental differences of opinion exist between +contracting parties with respect to the interpretation of a treaty, and +the extremely divergent interpretations of the meaning of the Potsdam +Agreement of 2 August 1945 provide a recent example. Diversity of +conception, therefore, does not permit the conclusion that the one or +the other party acted fraudulently during the signing or the subsequent +interpretation of a treaty. I will endeavor to show how unjustified this +charge is particularly in regard to the German interpretation of the +London Submarine Protocol. + +There are two terms on which the German interpretation hinges, namely, +that of “merchant vessel” and “active resistance.” If I now consider +some legal questions, this will in no way represent a comprehensive +exposition. I can only touch on the problems and due to lack of time +must limit myself also when dealing with research on the subject. I +shall primarily refer to American sources, because the interests of +naval strategy of that nation were not as firmly established as those of +the European nations and its research literature can thus claim greater +objectivity. + +The text of the London Protocol of 1936 is based, of course, on a +declaration which was signed at the London Naval Conference of 1930. The +committee of jurists appointed at that time expressed its opinion +concerning the greatly disputed definition of a merchant vessel in the +report of 3 April 1930: + + “The committee wishes to place on record that the expression + ‘merchant vessel’ where it is employed in the declaration is not + to be understood as including a merchant vessel which is at the + moment participating in hostilities in such a manner as to cause + her to lose her right to the immunities of a merchant vessel.” + +This definition clarifies at least one thing, namely, that by no means +every vessel flying a merchant flag may lay claim to being treated as a +merchant vessel in the sense of the London Agreement. Beyond this, the +explanation has few positive aspects because the question through what +kind of participation in hostilities a vessel loses her right to the +immunity of a merchant vessel is again subject to the interpretation of +the contracting parties. The London Conference, as far as I can see, did +not consider this ticklish question any further, and one is probably +entitled to assume that this remarkable reserve is based on experiences +which the same powers had accumulated in Washington 8 years before. + +The Washington Conference of 1922 was held under the impression of the +first World War; and therefore it is no wonder that Great Britain, the +naval power which during the World War had suffered most from German +submarine warfare, now tried to outlaw and abolish altogether by +international law submarine warfare against merchant shipping. The +resolution, named after the American chief delegate, Root, which in its +first part substantially corresponded to the London text of 1930, served +that aim. But in the second part the Root Resolution goes further and +stipulates that any commander who, no matter whether he acted with or +without higher orders, violated the rules established for the sinking of +merchant vessels should be punished as a war criminal like a pirate. +Finally it was recognized that under the conditions stipulated in the +resolution submarine warfare against merchant shipping was impossible, +and such warfare was therefore renounced altogether by the contracting +powers. The Root Resolution designates these principles as an +established part of international law. While it was accepted as such by +the delegates, none of the five participating naval powers, U.S.A., +Britain, France, Japan, and Italy ratified it. + +In connection with the Root Resolution, however, another question was +discussed which is of the greatest importance for the interpretation of +the London Protocol, namely, the definition of the term “merchantman.” +Here the two conflicting views in the entire U-boat question became +clearly evident. On the one side there stood Britain, on the other +France[4], Italy, and Japan, while the United States took the position +of a mediator. According to the minutes of the Washington Conference, +the Italian delegate, Senator Schanzer, opened the offensive of the +weaker naval powers by expressly emphasizing that a merchantman, when +regularly armed, might be attacked by a submarine without preliminaries. +In a later session Schanzer repeated his statement that the Italian +delegation applied the term of “merchantman” in the resolution only to +unarmed merchant vessels. He declared this to be in explicit accordance +with the existing rules of international law.[5] + +The French delegate, M. Sarraut, at that time received instructions from +his Foreign Minister, M. Briand, to second the reservations of the +Italian delegate.[6] He thereupon moved to have the Italian reservations +included in the minutes of the session. + +The Japanese delegate, Hanihara, supported this trend with the statement +that he thought it was clear that merchant vessels engaged in giving +military assistance to the enemy ceased in fact to be merchant +vessels.[7] It can therefore be seen that in 1922, three of the five +powers represented expressed the opinion that armed merchant vessels +were not to be regarded as merchant vessels in the sense of the +Agreement. + +Since the whole resolution threatened to collapse because of this +difference of opinion, a way out was found which is typical of +conferences of this kind. Root closed the debate with the statement that +in his opinion the resolution held good for all merchant ships as long +as the ship remained a merchant vessel.[8] With this compromise a +formula was created which, while representing a momentary political +success, would not however carry any weight in the case of war, for it +was left to every participating power to decide whether or not it would +grant the armed merchant vessels the protection of the resolution in +case of war. + +I have described these events of the year 1922 a little more in detail +because the powers which took part in them were the same as those which +participated in the London Naval Conference of 1930. The London +Conference was the continuation of the Washington Conference, and the +subjects that had been discussed and included in the minutes of the +first conference were of great importance for the second conference. +Experts too—and by no means only German but above all American and +French experts—based their examinations on the close connection of both +conferences, and it was precisely for that reason that they declared the +result achieved in the question of submarines to be ambiguous and +unsatisfactory. Here I merely wish to point to Wilson’s summarizing +report on the London Naval Treaty.[9] + +This report, besides the ambiguity of the concept “merchant vessel,” +also stresses the uncertainty connected with the words “active +resistance”; and it is with these very words that an exception from the +protection of the merchantman is connected, an exception which likewise +is not contained in the actual text of the London Agreement but which +nevertheless is generally recognized. I am referring to merchantmen in +an enemy convoy. If the London Agreement were interpreted literally, it +would be understood that even merchantmen in an enemy convoy must not be +attacked without warning but that an attacking warship would have to put +the escort vessels out of action first and then stop and search the +merchantmen. However, this suggestion, which is impossible from a +military point of view, evidently is not made even by the Prosecution. +In the report of the British Foreign Office, which has been mentioned +several times, it says: + + “Ships sailing in enemy convoys are usually deemed to be guilty + of forcible resistance and therefore liable to be sunk + forthwith.” + +Here even the Prosecution accepts an interpretation of the words “active +resistance,” an interpretation which results in no way from the treaty +itself but is simply a consequence of military necessity and thus +dictated by common sense. + +And this very same common sense demands also that the armed merchantman +be held just as guilty of forcible resistance as the convoyed ship. Let +us take an extreme instance in order to make the matter quite clear. An +unarmed merchant ship of 20,000 tons and a speed of 20 knots, which is +convoyed by a trawler with, let us say, 2 guns and a speed of 15 knots, +may be sunk without warning, because it has placed itself under the +protection of the trawler and thereby made itself guilty of active +resistance. If, however, this same merchant ship does not have the +protection of the trawler and instead the 2 guns, or even 4 or 6 of +them, are placed on its decks, thus enabling it to use its full speed, +should it in this case not be deemed just as guilty of offering active +resistance as before? Such a deduction really seems to me against all +common sense. In the opinion of the Prosecution the submarine would +first have to give the merchant ship, which is far superior to it in +fighting power, the order to stop and then wait until the merchant ship +fires its first broadside at the submarine. Only then would it have the +right to use its own weapons. Since, however, a single artillery hit is +nearly always fatal to a submarine but as a rule does very little harm +to a merchant ship, the result would be the almost certain destruction +of the submarine. + + “When you see a rattlesnake rearing its head, you do not wait + until it jumps at you but you destroy it before it gets the + chance.” + +These are Roosevelt’s words, in which he justified his order to the +United States naval forces to attack German submarines. This reason +seemed sufficient to him to order the immediate use of arms even without +the existence of a state of war. It is a unique instance in the history +of warfare, however, to grant one of two armed opponents the right to +fire the first shot and to make the other wait to be hit first. Such an +interpretation is contradictory to all military reason. It is no wonder, +therefore, if in view of such divergent opinions, the experts on +international law, even after the London Treaty and the signing of the +London Protocol of 1936, consider the treatment of armed merchant +vessels in naval warfare to be an unsolved question. Here too I should +like to refer to only one source of research, which enjoys especially +high authority. It is the draft of an agreement on the rights and duties +of neutrals in naval warfare, an agreement which leading American +professors of international law, such as Jessup, Borchard, and Charles +Warren, published in the _American Journal of International Law_ of July +1939 and which includes arguments which furnish an excellent idea of the +latest trend of opinion. Article 54 of this draft corresponds word for +word to the text of the London Agreement of 1936, with one notable +exception: The term “merchant vessel” is replaced by “unarmed vessel.” +The next article then continues: + + “In their action with regard to enemy armed merchant vessels, + belligerent warships, whether surface or submarine, and + belligerent military aircraft are governed by the rules + applicable to their action with regard to enemy warships.” + +This opinion is first of all explained by historical development. During +the time when it was customary to arm merchant vessels, that is, until +the end of the last century, there was no question of any protection for +the merchant vessel against immediate attack by an enemy warship. With +the introduction of armor plating the warship became so superior to the +armed merchant vessel that any resistance on the part of the latter was +rendered futile, and the arming of merchant ships therefore gradually +ceased. Only this defenselessness against warships, and this alone, +granted merchant vessels the privilege of not being attacked without +warning by the enemy: “As merchantmen lost effective fighting power they +acquired a legal immunity from attack without warning.” + +This immunity was never conceded to the merchant vessel as such but only +to the defenseless and harmless merchant vessel. In regard to this the +American expert on international law, Hyde,[10] stated in 1922, that is, +after the Washington Conference and the afore-mentioned Root Resolution +on U-boat warfare: + + “Maritime states have never acquiesced in a principle that a + merchant vessel so armed as to be capable of destroying a vessel + of war of any kind should enjoy immunity from attack at sight, + at least when encountering an enemy cruiser of inferior + defensive strength.” + +Legal as well as practical considerations, therefore, led the +above-mentioned American authorities, after the signing of the London +Agreement and shortly before the outbreak of this war, to form the +opinion that armed merchant ships do not enjoy protection from attacks +without warning. + +Here the old discrimination between defensive and offensive armaments is +also rejected as inapplicable. It is a well-known fact that the American +Secretary of State, Lansing, in his note to the Allies on 18 January +1916, took the point of view that any kind of armament aboard a merchant +vessel will make its fighting power superior to that of a submarine and +that such armament is therefore of an offensive nature.[11] + +In the later course of the first World War, the United States changed +its opinion and declared that mounting guns on the stern could be taken +as proof of the defensive character of the armaments. This standpoint +was adopted in some international agreements and drafts, as well as by +British jurists in particular. It does not do justice to the practice of +naval warfare. + +First of all, in this war the guns on many vessels were mounted from the +very start in the bows, for instance, regularly on fishing trawlers. +Furthermore, the antiaircraft weapons of the merchant vessel, which were +especially dangerous for the submarine, were frequently placed on the +bridge, and could therefore be used in all directions. Besides, there +can be no differentiation between defensive and offensive armaments as +to the way the weapons are placed. + +In this respect orders alone and the way in which these weapons are +meant to be employed are the decisive factors. Soon after the war had +started the orders of the British Admiralty had already fallen into +German hands. A decision of the Tribunal has made it possible for me to +submit them. They are contained partly in the _Confidential Fleet +Orders_, chiefly, however, in the _Defense of Merchant Shipping +Handbook_. They were issued in 1938. They do not therefore deal with +countermeasures against illicit German actions but, on the contrary, +were already issued at a time when warfare in accordance with the London +Agreement was the only form of submarine warfare taken into +consideration in Germany. + +The instructions further show that all British merchant vessels acted, +from the first day of the war, according to orders received from the +British Admiralty. These involved the following points with respect to +submarine warfare: + +(1) Reporting of submarines by radio telegraphy. + +(2) The use of naval artillery. + +(3) The use of depth charges. + +These instructions were supplemented on 1 October 1939, when a call was +transmitted over the radio to ram all German submarines. + +It might seem unnecessary after this survey to make any mention at all +of the defensive and offensive character of such orders. The orders on +the use of artillery by merchant vessels, however, do make such +differentiation; that is, guns are to be used for defense only, as long +as the enemy on his part adheres to the regulations of international +law, and for the offensive only when he no longer does. The orders +covering the practical execution of these directives reveal, however, +that there is no difference at all between defensive and offensive use. +Admiral Dönitz explained this in detail when he was heard in Court, and +I do not want to repeat it. Actually, from the very beginning of the war +merchant vessels were under orders to fire on every occasion on every +submarine which came within range of their guns. And that is what the +captains of British merchant vessels did. The reason for this offensive +action can certainly not be found in the conduct of German submarines +during the first weeks of the war, for even the Foreign Office report +admits that this conduct was correct. On the other hand, British +propaganda may have had great influence, since in connection with the +unintentional sinking of the Athenia on 3 September 1939, it +disseminated through Reuters on 9 September the assertion that +unrestricted submarine warfare was in progress and upheld this assertion +notwithstanding the fact that the conduct of German submarines during +the first weeks of the war refuted this accusation. Together with the +announcement of the British Admiralty’s ramming orders of 1 October +1939, the merchant navy was again officially informed that the German +U-boats had ceased to respect the rules of naval warfare and that +merchant vessels were to adjust their conduct accordingly. It seems to +me of no importance that a corresponding written supplement to Admiralty +orders was not issued until the spring of 1940, because nowadays a naval +war is not directed by letters but by wireless. But according to the +latter, the British captains, as from 9 September or 1 October 1939 at +the latest, were directed to use their guns offensively against the +German U-boats in accordance with the Admiralty’s instructions as +contained in its handbook. The German order to attack armed enemy +merchant vessels without warning was issued only on 4 October. Thus it +was justified in any case, even if one did acknowledge a difference in +treatment for vessels with defensive and offensive armament. + +The guns on the merchant vessels and the orders concerning their use +were, however, only a part of a comprehensive system of the use of +merchant vessels for military purposes. Since the end of September 1939 +the fastest vessels, that is, those ships that were the least endangered +by submarines but, on the other hand, were especially suited for chasing +U-boats, received depth charge chutes, that is, armaments which call for +location of a submerged submarine and thus may be judged as typical +weapons for the offensive. + +However, another factor of greater general importance, and also of +greater danger to the submarines, was the order to report every enemy +ship on sight, giving its type and location. This report was destined, +so said the order, to facilitate taking advantage of an opportunity, +which might never recur, to destroy the enemy by naval or air forces. +This is an unequivocal utilization of all merchant vessels for military +intelligence service with intent directly to injure the enemy. If one +considers the fact that according to the hospital ship agreement even +the immunity of hospital ships ceases, if they relay military +information of this type, then one need have no doubts about the +consequences of such behavior on the part of a commercial vessel. Any +craft putting out to sea with the order and intention of using every +opportunity that occurs to send military reports about the enemy to its +own naval and air forces is taking part in hostilities during the entire +course of its voyage and, according to the afore-mentioned report of +1930 of the committee of jurists, has no right to be considered a +merchant vessel. Any different conception would not do justice to the +immediate danger which a wireless report involves for the vessel +reported and which subjects it, often within a few minutes, to attack by +enemy aircraft. + +All of the Admiralty’s directives, taken together, show that British +merchant vessels, from the very first day of the war, closely +co-operated with the British Navy in combating the enemy’s naval forces. +They were part of the military communications network of the British +naval and air forces and their armament of guns and depth charges, the +practical training in manipulation of the weapons, and the orders +relative to their use, were actions taken by the British Navy. + +We consider it out of the question that a merchant fleet in this manner +destined and utilized for combat should count among the vessels entitled +to the protection of the London Protocol against sinking without +warning. On the basis of this conception and in connection with the +arming of all enemy merchant vessels, which was rapidly being completed, +an order was issued on 17 October 1939 to attack all enemy merchant +ships without warning. + +THE PRESIDENT: Dr. Kranzbühler, we may as well break off now. + +SIR DAVID MAXWELL-FYFE: My Lord, I am sorry to detain the Tribunal, but +I promised to tell the Tribunal about the two affidavits put forward for +the Defendant Seyss-Inquart. We have no objection to them. I promised to +tell Your Lordship today. I am sorry to have to detain you. + + [_The Tribunal adjourned until 16 July 1946 at 1000 hours._] + + NOTES + +----- + +[2] _De jure pacis ac belli_, Book II, Chapter XXIV, Paragraph 10. + +[3] Lord Edward Grey: “Twenty-five Years of Politics 1892-1916.” +(Retranslated into English from the German edition published by +Bruckmann, Munich 1926). “International Law has always been very +flexible.... A belligerent possessing an over-powerful navy has at all +times been in search of an interpretation of International Law which +would justify a maximum of intervention in respect of merchandise liable +to reach the enemy. This attitude was naturally adopted by Great Britain +and the Allies owing to their supremacy at sea. The British position on +this subject had not always been the same. When we figured among the +neutrals, we naturally contested the right to maximum intervention +claimed by the belligerents.” + +[4] Yamato Ichihalie, _The Washington Conference and After_, Stanford +University Press, Cal., 1928, Page 80, “The chief reason for the British +plea was the apprehension of the craft in the hands of the French navy.” + +[5] _Conference on the Limitation of Armaments_, Washington, November +12, 1921-February 6, 1922, Washington, Government Printing Office, 1922, +Pages 606, 688, 692. + +[6] _French Yellow Book_, La Conférence de Washington, Page 93. + +[7] Protocol Pages 693, 702. + +[8] Protocol Page 704. + +[9] _American Journal of International Law_, 1931, Page 307. + +[10] Hyde, _International Law_, 1922, Vol. II, Page 469. + +[11] _U.S. Foreign Relations_, 1916, Supplement Page 147. + + + + + ONE HUNDRED + AND SEVENTY-NINTH DAY + Tuesday, 16 July 1946 + + + _Morning Session_ + +FLOTTENRICHTER KRANZBÜHLER: Mr. President, Gentlemen of the Tribunal: I +would like to sum up my statements of yesterday and make the following +remarks regarding the conduct of German U-boats against enemy merchant +vessels. + +I believe that the German construction of the London Agreement of 1936, +in the light of the position taken by some of the powers involved, as +generally known to all experts, as well as according to the opinion of +numerous and competent jurists of all countries, was in no way +fraudulent. If I were to express myself with all caution, I would say +that it is, legally, at least, perfectly tenable, and thus not the +slightest charge can be raised against the German Naval Command for +issuing its orders on a sensible and perfectly fair basis. We have shown +that these orders were given only in consequence of the conditions +created by publication of the British measures, which, according to the +German concept of law, justified the orders issued. + +Before I leave this subject I should like to recall to the mind of the +Tribunal the special protection which the German orders provided for +passenger vessels. These passenger vessels were excluded for a long time +from all measures involving sinking of ships, even when they sailed in +an enemy convoy and therefore could have been sunk immediately, +according to the British conception. These measures indicate very +clearly that the accusation of disregard and brutality is unjustified. +The passenger vessels were only included in the orders concerning other +vessels when in the spring of 1940 there was no longer any harmless +passenger traffic at all, and when these ships, because of their great +speed and heavy armament, proved to be particularly dangerous enemies of +the submarines. If therefore Mr. Roger Allen’s report cites as an +especially striking example of German submarine cruelty the sinking of +the _City of Benares_ in the autumn of 1940, then this example is not +very well chosen because the _City of Benares_ was armed and went under +convoy. + +I shall turn now to the treatment of neutrals in the conduct of German +submarine warfare, and I can at once point again in this connection to +the example which Mr. Roger Allen cites especially for the sinking of a +neutral vessel contrary to international law. It concerns the torpedoing +of the Danish steamer _Vendia_, which occurred at the end of September +1939. The Tribunal will recall that this ship was stopped in a regular +way and was torpedoed and sunk only when it prepared to ram the German +submarine. This occurrence led the German Government to protest to the +Danish Government on account of the hostile conduct shown by a neutral +boat. + +This one example is just to show how different things look if not only +the result in the form of the sinking of a neutral ship is known, but +also the causes which led to this result. Until the last day of the war +the fundamental order to the German submarines was not to attack +merchantmen recognized as neutral. There were some accurately defined +exceptions to this order, about which the neutral powers had been +notified. They affected in the first place ships which conducted +themselves in a suspicious or hostile manner, and secondly ships in +announced operational areas. + +To the first group belonged, above all, those vessels which sailed +blacked-out in the war area. On 26 September 1939 the Commander of +U-boats asked the High Command of the Navy for permission to attack +without warning vessels proceeding in the Channel without lights. The +reason was clear. At night the enemy’s troop and matériel shipments were +taking place, by which the second wave of the British expeditionary army +was ferried across to France. At that time the order was still in effect +that French ships were not to be attacked at all. But since French ships +could not be distinguished from English vessels at night, submarine +warfare in the Channel would have had to be discontinued completely +after dark in compliance with this order. The Tribunal heard from a +witness that in this way a 20,000-ton troop transport passed unmolested +in front of the torpedo tubes of a German submarine. Such an occurrence +in war is grotesque and therefore of course the Naval Operations Staff +approved the request of the Commander of U-boats. + +The Prosecution has now made much ado about a note written on this +occasion by an assistant at the Naval Operations Staff, Kapitänleutnant +Fresdorf. The Chief of Section, Admiral Wagner, already disapproved of +the opinions expressed in this note; therefore they did not result in +corresponding orders. The order to attack blacked-out ships was issued +by radio without any further addition on the part of the Naval +Operations Staff and on 4 October it was extended to further regions +along the British coast, and again without any addition in the sense of +the above-mentioned note. + +Examining the question of blacked-out vessels from the legal standpoint, +Vanselow, the well-known expert on the law governing naval warfare, +makes the following remark:[12] + + “In war a blacked-out vessel must in case of doubt be considered + as an enemy warship. A neutral as well as an enemy merchant + vessel navigating without light voluntarily renounces during the + hours of darkness all claim to immunity from attack without + being stopped.” + +I furthermore refer to Churchill’s declaration, made in the House of +Commons on 8 May 1940, concerning the action of British submarines in +the Jutland area. Since the beginning of April they had had orders to +attack all German vessels without warning during the daytime, and all +vessels, and thus all neutrals, as well, at night. This amounts to +recognition of the legal standpoint as presented. It even goes beyond +the German order, insofar as neutral merchant vessels navigating with +all lights on were sunk without warning in these waters. In view of the +clear legal aspect it would hardly have been necessary to give an +express warning to neutral shipping against suspicious or hostile +conduct. Nevertheless, the Naval Operations Staff saw to it that this +was done. + +On 28 September 1939 the first German note was sent to the neutral +governments with the request that they warn their merchant ships against +any suspicious conduct, such as changes in course and the use of +wireless upon sighting German naval forces, blacking out, noncompliance +with the request to stop, _et cetera_. These warnings were subsequently +repeated several times, and the neutral governments passed them on to +their captains. All this has been proved by documents which have been +submitted. If therefore, as a result of suspicious or hostile conduct, +neutral ships were treated like enemy ships, they have only themselves +to blame for it. The German submarines were not allowed to attack any +one who as a neutral maintained a correct attitude during the war, and +there are hundreds of examples to prove that such attacks never did +occur. + +Now I wish to deal with the second danger which threatened neutral +shipping: The zones of operations. The actual development, briefly +summed up, was as follows: + +On 24 November 1939 the Reich Government sent a note to all seafaring +neutrals in which it pointed out the use of enemy merchant ships for +aggressive purposes, as well as the fact that the Government of the +United States had barred to its own shipping a carefully defined naval +zone around the central European coast, the so-called U.S.A. combat +zone. As the note states, these two facts give the Reich Government +cause—I quote: + + “... to warn anew and more strongly that in view of the fact + that the actions are carried on with all the technical means of + modern warfare, and in view of the fact that these actions are + increasing in the waters around the British Isles and near the + French coast, these waters can no longer be considered safe for + neutral shipping.” + +The note then recommends as shipping lanes between neutral powers +certain sea routes which are not endangered by German naval warfare and, +furthermore, recommends legislative measures according to the example +set by the United States. In concluding, the Reich Government rejects +responsibility for any consequences which might follow if warning and +recommendation should not be complied with. This note constituted the +announcement of an operational area equivalent in size to the U.S.A. +combat zone, with the specified limitation that only in those sea zones +which were actually endangered by actions against the enemy +consideration could no longer be given to neutral shipping. + +The Naval Operations Staff did indeed observe this limitation. The +neutral powers had more than 6 weeks in which to take the measures +recommended by the German Government for the safety of their own +shipping and to direct their shipping along the routes announced. +Starting in January the German command then opened up to the German +naval forces, within the operational area announced, certain accurately +defined zones around the British coast, in which an attack without +warning against all ships sailing there was admissible. The naval chart +on which these zones had been marked was submitted to the Tribunal. The +chart shows that these zones, and only these, were gradually set up +where, as a result of mutually increasing attacks and defensive actions +at sea and in the air, engagements continually occurred, so that any +ship entering this area was operating in the direct presence of the +naval forces of both powers. The last of these zones was designated in +May 1940. These zones were not, and need not have been, announced +because they were all within the area of operations as proclaimed on 24 +November 1939. The distance of these zones from the enemy coast was on +the average 60 sea miles. Outside their boundaries the declaration +concerning the area of operations of 24 November was not observed, that +is to say, neutral ships could be stopped and sunk only in accordance +with the Prize Ordinance. + +This situation changed when, after the collapse of France in the summer +of 1940, the British Isles became the center of war operations. On 17 +August 1940 the Reich Government sent to the neutral governments a +declaration in which the entire area of the U.S.A. combat zone around +England without any limitation was designated as an operational area. + + “Every ship”—so the note reads—“which sails in this area + exposes itself to destruction not only by mines but also by + other combat means. Therefore the German Government once more + urgently warns against entering this endangered area.” + +From this time on the area was fully utilized and the immediate use of +arms against craft encountered in it was permitted to all naval and air +forces, except where special exceptions had been ordered. The entire +development described was openly dealt with in the German press, and +Grossadmiral Raeder granted interviews to the foreign press on this +subject, which clearly showed the German viewpoint. If therefore in the +sea zones mentioned neutral ships and crews sustained losses, at least +they cannot complain about not having been warned explicitly and +urgently beforehand. + +This statement in itself has not much meaning in the question of whether +areas of operation as such constitute an admissible measure. Here, too, +the Prosecution will take the position that in the London Agreement of +1936 no exceptions of any kind were made for areas of operation and that +therefore such exceptions do not exist. + +It is a well-known fact that operational areas were originally +proclaimed in the first World War. The first declaration of this kind +came from the British Government on 2 November 1914, and designated the +entire area of the North Sea as a military area. This declaration was +intended as a reprisal against alleged German violations of +international law. Since this justification naturally was not +recognized, the Imperial Government replied on 4 February 1915 by +designating the waters around England as a military area. On both sides +certain extensions were made subsequently. I do not wish to go into the +individual formulations of these declarations and into the judicial +legal deductions which were made from their wording for or against the +admissibility of these declarations. Whether these areas are designated +as military area, barred zone, operational area, or danger zone, the +point always remained that the naval forces in the area determined had +permission to destroy any ship encountered there. After the World War +the general conviction of naval officers and experts on international +law alike was that the operational area would be maintained as a means +of naval warfare. A development, typical for the rules of naval warfare, +was confirmed here, namely, that the modern technique of war forcibly +leads to the use of war methods which at first are introduced in the +guise of reprisals, but which gradually come to be employed without such +a justification and recognized as legitimate. + +The technical reasons for such a development are obvious: The +improvement of mines made it possible to render large sea areas +dangerous. But if it was admissible to destroy by mines every ship +sailing, despite warning, in a designated sea area, one could see no +reason why other means of naval warfare should not be used in this area +in the same way. Besides, the traditional institution of the blockade +directly off enemy ports and coasts by mines, submarines, and aircraft +was made practically impossible, so that the sea powers had to look for +new ways to bar the approach to enemy coasts. Consequently it was these +necessities which were the compelling factors in bringing about the +recognition of the operational area. + +It is true that there was by no means a uniform interpretation +concerning the particular prerequisites under which the declaration of +such areas would be considered admissible, just as there was none with +regard to the designation which the belligerent power must choose. The +conferences of 1922 and 1930 did not change anything either in that +respect, as can be seen, for instance, from the efforts made after 1930, +especially by American politicians and experts in international law, for +a solution of this question.[13] + +Unfortunately, there is no time at my disposal to discuss these +questions in detail and therefore it must suffice for the purposes of +the defense to state that during the conferences in Washington in 1922 +and in London in 1930 the operational area was an arrangement or system +known to all powers concerned, which operated in a way determined by +both sides in the first World War; that is, that all ships encountered +in it would be subject to immediate destruction. If the operational area +were to have been abolished in the afore-mentioned conferences, +especially in the treaty of 1930, an accord should have been reached on +this question, if not in the text of the agreement then at least in the +negotiations. The minutes show nothing of the kind. The relationship +between operational area and the London Agreement remained unsettled. + +The French Admiral Castex[14] has the same viewpoint; Admiral Bauer, +Commander of Submarines in the first World War, voiced his disapproval +in 1931 of the application of the London rules in the operational area, +and this opinion was not unknown to the British Navy.[15] In a thorough +study published by Professor Ernst Schmitz[16] in 1938 a merchant vessel +which enters an operational area despite general prohibition is deemed +to be guilty of “persistent refusal to stop.” The powers participating +in the conferences in Washington and London carefully refrained, as also +in other cases, from tackling controversial questions on which no accord +could be reached. Therefore every power remained at liberty to champion +in practice such an opinion as corresponded with its own interests. +There was no doubt left in the minds of the participants as to this +fact, and I have as a witness for this no less a person than the French +Minister for Foreign Affairs at that time, M. Briand. In his instruction +of 30 December 1921 to Sarraut, the French chief delegate in Washington, +he announces his basic readiness to conclude an agreement on submarine +warfare. However, he then points out a series of questions described as +essential parts of such an agreement, among them the arming of merchant +ships and the definition of combat zones. The instruction goes on: + + “It is indispensable to examine these questions and to solve + them by a joint agreement, for surface vessels as well as for + submarines and aircraft, in order not to establish ineffective + and deceptive stipulations.”[17] + +Particularly with respect to the question concerning the area of +operations, Briand characterizes the submarine rules as being +“ineffective and deceptive.” + +After this testimony nobody would designate the German conception as +fraudulent, according to which ships in declared areas of operation +forfeit the protection under the London Agreement. Even Mr. Roger +Allen’s report concedes this.[18] Therefore the attacks of the +Prosecution seem to be directed, as I understand from the +cross-examination, not so much against the existence of such zones as +against their extent, and we have repeatedly heard the figure of 750,000 +square sea miles. Incidentally, it must be noted that this figure +includes the territorial area of Great Britain, Ireland, and western +France; the maritime area only amounts to 600,000 square miles. I quite +agree, however, that through operational areas of such a size the +interests of the neutrals were badly prejudiced. + +It is all the more remarkable that the afore-mentioned American draft of +the convention of 1939, which concerns the rights and duties of +neutrals, provides for a considerable expansion of the operational area. +Such an area, which is termed “blockade zone” in the draft, was to +include the waters up to a distance of 50 sea miles from the blockaded +coast. + +THE PRESIDENT: Dr. Kranzbühler, the Tribunal would like to know what +that American draft of 1939 is, to which you refer. + +FLOTTENRICHTER KRANZBÜHLER: It is the draft set up by the American +Professors Jessup Borchard and Charles Warren, dealing with the rights +and duties of neutrals in sea warfare. It was published in the _American +Journal of International Law_ of July 1939. + +THE PRESIDENT: Jessup and Warren, you say? + +FLOTTENRICHTER KRANZBÜHLER: Jessup Borchard and Charles Warren. + +THE PRESIDENT: Thank you. + +FLOTTENRICHTER KRANZBÜHLER: This would correspond roughly to the area of +waters in which attacks without warning were authorized until 17 August +1940; it covers approximately 200,000 square sea miles. + +However, it seems to me almost impossible to approach from a juridical +angle such an eminently practical question as that of the extent of an +operational area. As long as this question is not settled by an +agreement the actual determination will always be a compromise between +what is desirable from a military point of view and what is politically +possible. It seems to me that the law is only violated when a +belligerent misuses his power against neutrals. The question as to +whether such misuse takes place should be made dependent both upon the +attitude of the enemy toward the neutrals and upon the measures taken by +the neutrals themselves. + +THE PRESIDENT: One minute. Dr. Kranzbühler, does not the right to +declare a certain zone as an operational zone depend upon the power to +enforce it? + +FLOTTENRICHTER KRANZBÜHLER: I do not quite follow the point of your +question. + +THE PRESIDENT: Well, your contention is, apparently, that any state at +war has a right to declare such an operational zone as it thinks right +and in accordance with its interests, and what I was asking you was +whether the right to declare an operational zone, if there is such a +right, does not depend upon the ability or power of the state declaring +the zone to enforce that zone, to prevent any ships coming into it +without being either captured or shot. + +FLOTTENRICHTER KRANZBÜHLER: I do not believe, Mr. President, that there +exists agreement of expert opinion regarding that question. In contrast +to the blockade zone in a classical sense where full effect is +necessary, the operational zone only provides for practical endangering +through continuous combat actions. This practical threat was present in +the German operational zone in my opinion, and I refer in that +connection to the proclamation of President Roosevelt regarding the +U.S.A. combat zone, where the entering of that zone was prohibited, +because as a result of combat actions shipping must of necessity be +continuously endangered. + +THE PRESIDENT: The proclamation of the President of the United States +was directed, was it not, solely to United States vessels? + +FLOTTENRICHTER KRANZBÜHLER: I am referring to it only to establish proof +of the German interpretation that this area was endangered, and +practical danger seems to be the only legal and necessary prerequisite +for declaring an operational zone. + +THE PRESIDENT: Would you say that it was a valid proclamation if Germany +had declared the whole of the Atlantic to be an operational zone? + +FLOTTENRICHTER KRANZBÜHLER: Mr. President, I would say that at the +beginning of the war that would not have been possible, for the German +forces at that time, without doubt, did not constitute an effective +danger to the entire Atlantic sea traffic. I am of the opinion, however, +that with the increase in the number of U-boats on the one hand, and +with the increase of defense by hostile aircraft on the other, the +danger zone of course expanded, and therefore the development of this +war quite logically led to the point where operational zones were +gradually extended and enlarged. + +THE PRESIDENT: Do you mean, then, that you are basing the power of the +state to declare a certain zone as an operational zone not upon the +power of the state to enforce its orders in that zone, but upon the +possibility of danger in that zone? + +FLOTTENRICHTER KRANZBÜHLER: Yes. + +THE PRESIDENT: You say it depends upon the possibility of danger in the +zone? + +FLOTTENRICHTER KRANZBÜHLER: I would not say the possibility of danger, +Mr. President, but the probability of danger, and the impossibility for +the belligerent to protect neutral shipping against this danger. + +THE PRESIDENT: May I ask you what other legal basis there is for the +theory you are putting forward, other than the adoption of the blockade? + +FLOTTENRICHTER KRANZBÜHLER: I am referring as a legal basis especially +to the practice of the first World War, and the statements made by +experts after the first World War, and also to the generally recognized +rules about mined areas. The mined areas actually in this war proved to +be operational zones where every means of sea warfare was used to sink +without warning. I shall later refer to this topic once more. + +THE PRESIDENT: Thank you. + +FLOTTENRICHTER KRANZBÜHLER: During the presentation of documents, the +Tribunal has eliminated all those which I intended to utilize in order +to prove that British naval warfare also paid no attention to the +interests of neutrals when they were in contradiction with their own +interests. If it is the Tribunal’s wish, I will not go into the details +of the British measures, and in summing up I will mention them only +insofar as they are indispensable for the legal argumentation. The +following points are essential: + +(1) The British regulations of 3 September 1939 concerning contraband +goods, which practically precluded neutral mercantile traffic with +Germany through the introduction of the so-called “hunger blockade.” + +(2) The decree concerning control ports for contraband goods, which +compelled neutral ships to make great detours right through the war +zone, and to which must be imputed without doubt a series of losses of +neutral ships and crews. + +(3) The introduction of an export blockade against Germany on 27 +November 1939, by means of which the importation of German goods was cut +off for neutrals. + +(4) The introduction of the navicert system and the black lists, which +put the whole of neutral trade under British control and which made +ships refusing to accept this system liable to be seized and +confiscated. + +I do not have to examine the question here whether these British +measures toward neutrals were admissible or not from the point of view +of international law. In any case the neutrals themselves considered +many of them inadmissible, and there was hardly a single one which did +not bring forth more or less vehement protests, for instance from Spain, +the Netherlands, Soviet Russia, and the United States. From the +beginning, the British Government for its part had forestalled any legal +examination of the measures by renouncing the optional clause of the +Permanent International Tribunal in The Hague, through a note of 7 +September 1939. This step was expressly vindicated by the necessity for +providing the British Navy with full freedom of action. + +On the British side the fact was emphasized in the first World War and +ever since that although British measures did prejudice the interests +and possibly also the rights of the neutrals, they did not imperil +either the ships or the crews and were therefore to be considered +morally superior to the inhuman German measures. Actually, as mentioned +before, the obligation to enter control ports was dangerous for neutral +ships and crews and for this very reason the neutral countries protested +against it. But apart from this, it seems to me that the actual +divergence between the British and German measures for blockading the +adversary is not founded upon moral differences, but rather upon +difference in sea power. In the waters where the British Navy did not +exercise naval supremacy, namely, off the coasts we occupied, and in the +Baltic Sea, it used the same methods of naval warfare as we did. + +In any case the official German opinion was that the afore-mentioned +British control measures against neutrals were inadmissible, and the +Reich Government reproached the neutral powers with the fact that, +although protesting, they in point of fact submitted to the British +measures. This is clearly stated in the proclamation issued on the +occasion of the declaration of the blockade on 17 August 1940. +Consequently, the following facts confronted, the German Naval Command: + +(1) A legal trade between the neutrals and the British Isles no longer +existed. On the grounds of the German answers to the British +stipulations concerning contraband goods and the British export +blockade, any trade to and from England was contraband trade and +therefore illegal from the point of view of international law. + +(2) The neutrals in practice submitted to all British measures, even +when these measures were contrary to their own interests and their own +conception of legality. + +(3) Thus, the neutrals directly supported British warfare, for by +submitting to the British control system in their own country they +permitted the British Navy to economize considerably on fighting forces +which, according to the hitherto existing international law, should have +exercised trade control at sea and which were now available for other +war tasks. + +Therefore the German Government, in determining its operational area +with a view to preventing illegal traffic from reaching England, saw no +reason for giving preference to the neutrals over its own military +requirements, all the less so since neutral shipping, which despite all +warnings continued to head for England, demanded a great deal of money +for this increased risk and therefore despite all risks still considered +trade with England a profitable business.[19] + +In addition to that, the most important neutrals themselves took +measures which can be regarded as a completely novel interpretation of +the existing laws of naval warfare. All the American countries jointly +proclaimed the Pan-American safety zone, an area along the American +coast within a distance of approximately 300 sea miles. In these waters, +comprising altogether several million square miles, they required +belligerents to forego the exercise of these rights which, according to +hitherto existing international law, the naval forces of the +belligerents were entitled to apply to neutrals. On the other hand, as I +have already mentioned, the President of the United States prohibited, +on 4 November 1939, U.S. citizens and ships from entering the waters +extending over approximately one million square miles along the European +coast. Thus the development of the laws of naval warfare, under the +influence of the neutrals, necessarily led to the recognition of large +areas reserved either for the purpose of safety or for that of combat. +In this connection the American President explicitly stated in his +proclamation that the maritime zone he had closed was “endangered by +combat action” as a result of technical developments. The proclamation +thus only took into account the development of modern weapons; the +long-range coastal artillery which, for example, could easily fire +across the English Channel; the invention of locating devices which +permitted coastal supervision of maritime traffic over large areas; and +particularly the increased speed and range of aircraft. + +From this development the German Naval Command drew the same conclusion +as the above-mentioned neutrals, namely, that defensive and offensive +action would necessarily have to cover large maritime areas in this war. +It was therefore not through arbitrary action that the German +operational area, which the Prosecution objects to, grew to such a size; +it was only because the German Naval Command was adapting itself to a +system which was recognized by the other powers also as justified. + +In order to examine the legality of the German measures on the basis of +enemy methods, may I ask the Tribunal to recall the naval chart on which +the British zones of warning and danger are marked. These zones cover +about 120,000 square sea miles. Even if these dimensions are smaller +than those of the German operational area, it seems to me that the +difference between 100,000 and 600,000 square miles is not so much a +question of legal judgment as one of coastal length and of strategic +position on the sea. This observation is confirmed by the American +practice against Japan, as described by Admiral Nimitz. He says: + + “In the interest of the conduct of operations against Japan the + area of the Pacific Ocean is declared a zone of operations.” + +This zone of operations covers more than 30 million square miles. All +ships therein, with the exception of U.S. and Allied, and hospital +ships, were sunk without warning. The order was issued on the first day +of the war, on 7 December 1941, when the Chief of the Admiralty ordered +unrestricted submarine warfare against Japan. + +It is not for me to examine whether this order, issued on the first day +of the war, is to be looked upon and justified as a measure of reprisal. +For me the important thing is to show what actual practice looked like, +and that is unequivocal. + +The Prosecution finds particularly blameworthy the orders to carry out +attacks without warning in the operational areas, if possible without +being noticed, so that mine hits could be claimed. Orders to this effect +existed for the period between January and August 1940, that is to say, +during the period when submarines were not permitted to act without +warning throughout the operational area of 24 November 1939, but only in +the specially defined areas off the British coast. In this camouflage +the Prosecution sees proof of a bad conscience amounting to the +recognition of wrongdoing. The real reasons for the measures ordered +were both military and political. For the admirals concerned the +military reasons, of course, took first place, and these alone were +known to the Commander of U-boats. The enemy was to be left in +uncertainty as to what weapons of naval warfare had caused his losses, +and his defense was to be led astray in this manner. It is obvious that +such misleading of the enemy is fully justified in time of war. The +measures had the desired military success, and in numerous cases the +British Navy employed flotillas of mine sweepers on the spot where a +ship had been torpedoed, and conversely started a submarine chase where +a loss had occurred through mine hits. + +For the Supreme Command, however, it was not the military but the +political reasons that were the determining factor. These invisible +attacks were meant to provide an opportunity of denying to the neutrals +that the sinkings were due to submarines, and of tracing, them back to +mines. This actually did happen in some cases. Does that mean that the +German Government itself considered the use of submarine action without +warning within the area of operations to be illegal? I do not think so. + +In view of the repeated accusations which the Prosecution have construed +here and elsewhere from the camouflaging of measures and the denial of +facts, I feel obliged to make a few remarks on the point as to whether +there is any obligation at all in international politics to tell the +truth. However things may be in peacetime, in times of war at any rate +one cannot recognize any obligation to tell the truth in a question +which may be of advantage to the enemy. I need only point to Hugo +Grotius who says: “It is permissible to conceal the truth wisely. +Dissimulation is absolutely necessary and unavoidable.”[20] + +What would it have meant for the military situation if U-boat sinkings +such as in the instances dealt with here had not been denied but +admitted instead? First of all, since that would have come to the +knowledge of the enemy too, we should have lost the military advantage +which lay in misleading his defense. Furthermore—and this is no less +important—we might quite possibly have furnished our enemy with allies +who would have helped him at least with propaganda, if not with their +weapons. In view of the fact that some of the neutrals concerned were so +dependent on England, they probably would not have recognized the German +viewpoint as to the legitimacy of the operational areas, especially +since this viewpoint was contrary to their own interests. It would have +led to political tensions, and possibly to armed conflicts. Our enemies +would have derived the only immediate advantage from it. From the +standpoint of the law this endeavor to camouflage the use of submarines +with regard to the neutrals does not seem objectionable to me. + +But if the Prosecution uses this with the intention of moral defamation, +it is applying standards which heretofore have never been applied to the +conduct of a war and to the politics of any other country in the world. +It was precisely in naval warfare that the same methods of camouflage +were employed by the other side, too. The operational areas which Great +Britain declared off the European coasts from Norway to Biscay were, +with the exception of the Biscay area, declared mine danger zones. But +we know from Churchill’s statement of May 1940, as well as from +testimonies of witnesses, that in these areas there were unlimited +attacks with submarines, speedboats and, above all, with airplanes. +Consequently very often neither the German command nor the neutral +country which had been attacked knew whether a loss sustained in such an +area really should be traced back to a mine or to another weapon of +naval warfare. To conclude that the camouflaging of a measure +constitutes its illegality thus seems to me entirely without basis. + +Within the German operational zone all ships were on principle attacked +without warning. However, orders had been given to make exceptions in +the case of certain neutrals, such as, in the beginning, Japan, the +Soviet Union, Spain, and Italy. In this measure the Prosecution saw the +endeavor of the Naval Operations Staff to terrorize the smaller neutral +countries whereas it dared not pick a quarrel with the big ones. The +real reason for this differentiating treatment is given in Document +UK-65 in the notation on the report which the Commander-in-Chief of the +Navy made to the Führer on 16 October 1939. + +According to this the neutral governments mentioned are requested to +declare that they will not carry contraband; otherwise they would be +treated just like any other neutral country. The reason for the +different treatment was merely that certain countries were willing and +able to forbid their vessels from carrying contraband to England, +whereas others could not or would not do so because of their political +attitude or their economic dependence on England. Therefore it is not a +question of terrorizing the smaller neutrals and sparing the bigger +ones, but of preventing traffic in contraband and sparing legal +commercial trade. Since no general legal maxim exists which compels the +belligerent power to treat all neutral powers alike, no objection can be +raised on the basis of international law. It would indeed be strange if +here in the name of humanity the demand were made that German submarines +should have sunk even those ships which they did not want to sink at +all. + +The Tribunal saw from the standing war orders submitted that during the +further course of the war even the small powers, which were the only +neutral ones left, could by virtue of shipping agreements cross the +operational area along certain routes without being molested by German +submarines. In this way for instance Sweden and Switzerland as well as +Turkey could carry on their maritime trade during the entire war. + +Outside the operational area announced the German submarines were never +permitted to attack neutral ships. In this respect the Naval Command +refrained from waging any submarine warfare against neutral merchant +shipping, since enemy air surveillance made stopping and searching too +dangerous for German submarines. Against the disadvantage of submarine +warfare within the operational area, the neutrals had, outside the area, +the advantage of remaining completely unmolested, even if they were +shipping contraband goods, which fact in itself made them liable to be +sunk after being stopped. Thus a neutral vessel outside the operational +area was only in danger if it behaved in a suspicious or hostile way or +if it was not clearly marked as neutral. The German Naval Operations +Staff again and again called the attention of the neutral powers to this +necessity. + +In this connection I must mention the order of 18 July 1941, according +to which United States vessels within the operational area were placed +on an equal basis with all other neutrals, that is to say, could be +attacked without warning. The Prosecution have seen in this special +proof that the submarine warfare against neutrals was waged in a +“cynical and opportunist” way. If this is meant to convey that it was +influenced also by political considerations, then I am ready to admit +it. But I do not consider this a reproach; since war itself is a +political instrument, it is in keeping with its essence if individual +parts of it are placed under the leadership of politics. In particular, +no reproach should be seen in the orders of the German Command as +regards the utilization of submarines against the United States, because +they precisely furnish proof of the efforts to avoid any conflict with +the United States. + +As the Tribunal knows from documents and the testimonies of witnesses, +the ships of the United States during the first years of the war were +exempt from all measures of naval warfare, and this applied even when +contrary to the original American legislation they sailed into the +U.S.A. combat zone and thus into the German operational area in order to +carry war matériel to England. + +This policy was not changed until, in addition to the many unneutral +acts of the past, the active employment of the American Navy had been +ordered for the protection of British supply lines. + +Everybody is familiar with the statements of President Roosevelt, which +he made at that time, about the “bridge of boats over the Atlantic” and +the support which should be given to England “by every means short of +war.” It may be considered a matter of doubt whether the “realistic +attitude”[21] which the U.S. naval and air forces were ordered to take +at that time did not already constitute an illegal war, as has been +claimed just now on the part of the Americans.[22] + +At least the United States had abandoned her neutrality and claimed the +status of a “nonbelligerent,” which also presented a new aspect of +international law in this war. If in this connection one wishes to raise +the charge of cynicism, it should hardly be directed against the orders +which were issued as a justified reaction to the American attitude. + +I have endeavored to present to the Tribunal a survey of the essential +orders issued, and to say a few things with respect to their legality. +No doubt there were instances of attacks on ships which according to the +orders mentioned should not have been attacked. There are just a few +such cases, and some of them have been brought up at this Trial. The +best known concerns the sinking of the British passenger vessel +_Athenia_ on 3 September 1939 by _U-30_ under the command of +Kapitänleutnant Lemp. The sinking of this ship was due to the fact that +the commander mistook it for an armed merchant cruiser. + +If the Tribunal should still hesitate to believe the concurring +statements of all the witnesses heard here on this critical instance, +which was used especially for propaganda purposes, these doubts ought to +be removed by the behavior of the same commander in the days and weeks +following the sinking. Kapitänleutnant Lemp, as the log of _U-30_ at +that time shows, adhered strictly to the Prize Ordinance, and from this +log I was able to submit several examples of the fair and gentlemanly +conduct of German commanders even when by such conduct they greatly +endangered their submarines. + +Only on the return of _U-30_ from the operations at the end of September +1939 were the Commander of U-boats and the Commander-in-Chief of the +Navy fully informed of the whole affair of the sinking of the _Athenia_. +Upon his return the commander immediately reported to the Commander of +U-boats the mistake which he himself meanwhile recognized as such, and +was sent to Berlin to report in person. + +Dr. Siemers will deal with the political aspect of this matter. I only +mention the military occurrences. Admiral Dönitz received the following +communication from the Naval Operations Staff: + +(1) The affair was further to be dealt with politically in Berlin. + +(2) Court-martial proceedings were not necessary since the commander +acted in good faith. + +(3) The entire matter was to be kept in strict secrecy. + +On the grounds of this order the Commander of U-boats gave orders that +the report on the sinking of the _Athenia_ be deleted from the log of +_U-30_ and that the log be complemented in such a manner as to make the +absence of the entry inconspicuous. As the Tribunal has seen, this order +was not adequately carried out, obviously for the reason that the +officer in charge had no experience whatever in such dealings. + +The Prosecution pointed to this changing of the War Diary as a +particularly criminal act of falsification. This, it seems to me, is +based on a misunderstanding of the facts. The War Diary is nothing but a +military report by the commander to his superiors. What occurrences +should or should not be included in reports of this kind is not decided +by any legal or moral principle, but is solely a matter of military +regulations. The War Diary was meant to be secret; however, it was—like +many secret matters—accessible to a very large group of people. This is +already apparent from the fact that it had been circulated in eight +copies, of which some were intended not only for higher staffs but for +schools and for training flotillas as well. Therefore, whenever an +occurrence was to be restricted to a small group of individuals, it was +not to be reported in the War Diary. Since the sequence of the War Diary +continued, the missing period had to be filled in with another, +necessarily incorrect, entry. I can see nothing immoral in such a +measure, much less anything illegal. As long as there is secrecy in time +of war—and that is the case in all countries—it means that not all +facts can be told to everybody, and therefore one sometimes may have to +make incorrect statements. A certain moral offense could perhaps be seen +in such action in the case of the _Athenia_ if thereby a falsification +for all times had been intended. This, however, was by no means the +case. The commander’s report with regard to the sinking of the _Athenia_ +was of course submitted in the original form to the immediate superiors, +the Commander of U-boats and the Commander-in-Chief of the Navy, and +kept in both their offices. I should like further to say briefly that a +general order not to enter certain happenings into the War Diary has +never existed. + +The _Athenia_ case brings another fact to light and that is the manner +in which the compliance of U-boat commanders with any orders issued was +enforced. In spite of the justified conception of the Naval Operations +Staff that the commander acted in good faith, he was put under arrest by +Admiral Dönitz because by exercising greater caution he perhaps might +have recognized that this was not an auxiliary cruiser. Punishment was +meted out in other cases, too, where orders had been mistakenly +violated. + +The Tribunal is familiar with the wireless communications of September +1942, by which, on occasion of the sinking of the _Monte Corbea_, the +commander had been informed that upon his return he would have to face +court-martial proceedings for violation of orders regarding conduct +toward neutrals. All commanders received notice of this measure. + +The Tribunal will please consider what such strict warnings mean to a +commander at sea. If the directives of the American manual for +courts-martial were to be considered as a basis, then court-martial +proceedings against officers should only be initiated in cases where +dismissal from the service seems warranted.[23] That should never be the +case when the violation of an order is an accidental one. For a +commanding officer who is supposed with his soldiers to wage war and +gain successes, it is extremely hard and, in fact, under certain +circumstances actually a mistake to have one of his commanders on his +return from a successful operation tried before a court-martial because +of a single slip which occurred in that action. + +Every military command acts in accordance with these principles. In this +connection I will refer to the unreserved recognition which the +commander of the British destroyer _Cossack_ received for setting free +the prisoners of the _Altmark_ in spite of the incidents which occurred +during this action, which were probably regretted by the British too. + +I had to go into those matters in order to meet the accusation that all +sinkings carried out against orders were afterward sanctioned by the +High Command in that no drastic steps were taken against the commanders. +Especially in the field of submarine warfare compliance with orders +issued was insured by the continuous personal contact of the commanders +with their commanding officer. Upon conclusion of every enemy operation +an oral report had to be made, and all measures taken were subjected to +sharp criticism, while instructions were given at the same time for +future behavior. + +The German submarines undertook many thousands of combat operations +during this war. In the course of these, orders issued were violated +only in very rare instances. If one considers how difficult it is for a +submarine to establish its exact position and the boundaries of an +operational area, and to distinguish an armed from an unarmed ship, a +passenger ship from a troop transport, or a neutral from an enemy ship, +the low number of sinkings considered unjustified by the Germans, too, +must be taken as proof of an especially effective and conscientious +leadership. + +After this discussion of the factual development of German submarine +warfare, I still have to deal with the accusations built up by the +Prosecution from certain preparatory deliberations on the subject of the +organization of submarine warfare. + +Simultaneously with the combat instructions of 3 September 1939, whereby +German submarines were ordered to adhere in their operations strictly to +the Prize Ordinance, an order was prepared in the Naval Operations Staff +decreeing action without warning in case the enemy merchantmen were +armed. In addition to this, during the first days of the war there was +an exchange of correspondence with the Foreign Office on the subject of +declaring prohibited zones. + +The Prosecution looks upon these two documents as proof of the intention +to conduct a war contrary to international law from the very start. I, +on the other hand, regard these same documents as proof of the fact that +the Naval Operations Staff was fully unprepared for a war with England, +and that it was only when the British had already declared war that they +began to set about thinking in the most elementary manner on how such a +war should be conducted. Since neither surprise attacks on armed +merchant vessels nor the declaration of prohibited zones violate +international law, a belligerent might well be allowed to consider after +the outbreak of war if and when he wants to make use of these +opportunities. As we know from the afore-mentioned orders of the British +Admiralty, as early as 1938 a thorough study of all the possibilities +resulting from the war upon commercial shipping had been made and +elaborated for practical purposes. + +This same standpoint holds good also for the memorandum of the Naval +Operations Staff of 15 October 1939, which has been quoted several times +by the Prosecution. Its very heading shows that it is a study: +“Possibilities for the Intensification of Naval Warfare.” + +In accordance with the heading, the memorandum provides an examination +of the military demands for effective naval warfare against England, and +of the legal possibilities for fulfilling these demands. The result was +the order of 17 October 1939, decreeing the immediate use of arms +against all enemy merchant vessels, since, as we have already shown, +they had been armed and incorporated into the military system. Further +intensifying measures were for the time being recognized as not yet +justified, and the suggestion was made to wait and see what the further +conduct of the enemy would be. + +One sentence in this memorandum arouses special suspicion on the part of +the Prosecution. It says that naval warfare must, as a matter of +principle, be kept within the framework of existing international law. +However, measures which might result in successes decisive for the war +would have to be taken even if new laws of naval warfare were created +thereby. + +Does this really constitute a renunciation of international law? Quite +the contrary. A departure from existing international law is made +dependent only on two quite limited conditions: (1) A military one, +namely, that measures are involved which are of decisive importance for +the outcome of the war, that is, also of importance in shortening the +war;[24] (2) a moral one, namely, the nature of the new measures makes +them suitable for incorporation into the new international law. + +The memorandum itself states that this would be possible only within the +framework of the laws of military combat ethics and a demand is +therefore made for rigid adherence without any exceptions to these +ethics of warfare. Under these conditions there can hardly be any doubt +as to the possibility of formulating new international laws. + +The well-known expert on international law, Baron von +Freytagh-Loringhoven says, and I quote: + + “... always been war which has given its strongest impulses to + international law. Sometimes they have been of a positive, + sometimes of a negative nature. They have led to further + development of already existing institutions and norms, to the + creation of new forms or the reversion to old ones, and not + infrequently also to failures.”[25] + +Especially in this Trial, which itself is supposed to serve the +development of new international law, the possibility of such a +development cannot be denied. + +THE PRESIDENT: We will adjourn. + + [_A recess was taken._] + +THE PRESIDENT: The Tribunal will not sit in open session after 1 o’clock +tomorrow, Wednesday; it will sit in closed session during the afternoon. +The Tribunal will not sit in open session on Saturday; it will sit in +closed session on Saturday morning. + +FLOTTENRICHTER KRANZBÜHLER: Before the recess I was speaking about the +possibilities of development of naval law. + +The American prosecutor, Justice Robert Jackson, in his report to the +President of the United States with regard to this problem, expressed +his opinions as follows, and I quote:[26] + + “International law is not capable of development by legislation, + for there is no continuously sitting international legislature. + Innovations and revisions in international law are brought about + by the action of governments, designed to meet a change in + circumstances. It grows, as did the common law, through + decisions reached from time to time in adapting settled + principles to new situations.” + +These words carry a full justification of the clause objected to by the +Prosecution in the memorandum of the Naval Operations Staff. And the +fact that the Allies also deemed war-deciding measures to be justified +even though they were contradictory to hitherto valid concepts of +international law is proved by the use of the atomic bomb against +Japanese cities. + +Since I am interested in justifying the actual measures taken by the +Naval Command in Germany; I have not dealt with the point as to which +one of the two admirals accused carried greater or lesser responsibility +for one or another. As a formal basis in nearly all cases a Führer +decree exists. Both admirals, however, stated here that they considered +themselves fully responsible for all orders of naval war which they gave +or transmitted. I should like to add to that only two remarks. + +As far as political considerations were decisive for orders of the +U-boat war, the Commander-in-Chief of the Navy had no influence on them. +The Commander of U-boats had not been notified of such considerations +any more than of the political settlement of incidents which arose +through U-boats. + +My second remark concerns the question as to what extent a military +commander may be held responsible for the accuracy of legal reasonings +which he does not indulge in himself, but which are delivered to him by +the leading experts of his country, who after all are not just +small-town lawyers. In addition, the Commander of U-boats had only +tactical tasks and his staff contained only a few officers, none of whom +was qualified to examine questions of international law of the import +mentioned here. He therefore had to rely on the fact that the orders +issued by the Naval Operations Staff were examined as to their legality +and were in order. That is probably handled in a like manner in every +navy in the world. A professional seaman is not competent for legal +questions; with this reason the Tribunal cut off a remark by Admiral +Dönitz about a legal question. This condition must, however, be +considered in applying the principle which the German Supreme Court, +during the war crimes trials after the first World War, formulated in +this regard, and I quote: “The culprit must be conscious of the +violation of international law by his actions.” + +This appears to me to be equally just, as I should deem it to be +incompatible with the demands of justice if soldiers were charged with a +criminal responsibility in deciding legal questions which could not be +settled at international conferences and are hotly disputed among the +experts themselves. + +In this connection I should like to mention that the London Pact of 1930 +did not from the Root Resolution of 1922 adopt the principle of criminal +prosecution for violations of the rules of U-boat warfare. The five +naval powers participating in this conference apparently came to the +conclusion that the problems of naval warfare cannot be solved by means +of penal law. And this fact applies fully today, too. + +I am now coming to the second basic charge of the +Prosecution—intentional killing of shipwrecked crews. It is directed +only against Admiral Dönitz, not Admiral Raeder. The legal basis for the +treatment of shipwrecked crews for those ships which are entitled to the +protection of the London Agreement of 1936 is laid down in the agreement +itself. There it says that, before the sinking, crews and passengers +must be brought to safety. This was done by the German side, and the +difference of opinion with the Prosecution concerns only the question +already dealt with, namely, which ships were entitled to protection +under the agreement and which were not. + +In the case of all ships not entitled to protection under the agreement, +sinking should be considered a military combat action. The legal basis, +therefore, with regard to the treatment of shipwrecked crews, in these +cases is contained in the Hague Convention concerning the Application of +the Principles of the Geneva Convention to Naval Warfare of 18 October +1907, although it was not ratified by Great Britain. According to this, +both belligerents shall after each combat action make arrangements for +the search for the shipwrecked, as far as military considerations allow +this. Accordingly the German U-boats were also bound to assist the +shipwrecked of steamers sunk without warning as long as by doing so, +first, the boat would not be endangered and, secondly, the +accomplishment of the military mission would not be prejudiced. + +These principles are generally acknowledged. In this connection I am +referring to the order of the British Admiralty, for example, and I +quote: “No British ocean-going merchantman shall aid a ship attacked by +a U-boat.” + +I further refer to the affidavit of Admiral Rogge, according to which in +two cases, personally witnessed by him, nothing was done by a British +cruiser to rescue the shipwrecked, because U-boats were assumed to be +nearby, once correctly so and once erroneously. A higher degree of +self-endangering would appear to apply to U-boats as compared with other +types of vessels because of their exceptional vulnerability. + +As to the second exception to rescue duty, namely, prejudice to the +military mission, the U-boat is also subject to special conditions. It +has no room to take guests aboard. Its supply of food, water, and fuel +is limited and any considerable expenditure will prejudice its combat +mission. Furthermore, it is typical for the U-boat that the combat +mission may call for an unobserved attack and therefore exclude rescue +duty. In order also to present an opinion about the tactics of the +opposite side, I quote from the statement of Admiral Nimitz: + + “In general U.S. submarines did not rescue enemy survivors if it + meant an unusual additional danger for the submarine or if the + submarine was prevented from further carrying out its mission.” + +In the light of these principles I will briefly deal with rescue +measures by U-boats until the autumn of 1942. The basic order was issued +by the Naval Operations Staff on 4 October 1939, and specified rescue +whenever possible from the military standpoint. This was temporarily +restricted by Standing War Order 154. This order, issued in December +1939, applied to the small number of submarines at that time operating +immediately off the British coast. It may be seen from the order itself +that every paragraph deals with combat in the presence of enemy escort +and patrol forces. The last paragraph therefore also deals only with +this aspect and serves the warranted purpose of protecting submarine +commanders against the dangers to which, under the existing +circumstances, they would in every case expose their boats by rescue +measures. When after the Norwegian campaign the scene of activity of the +submarines gradually shifted to the open Atlantic, this order became +outdated, and it was finally canceled in the autumn of 1940. In the +period that followed, the German submarine commanders carried out rescue +measures whenever they could assume responsibility from the military +standpoint. This is known to the Tribunal from numerous specific +examples cited here, contained both in the statements of submarine +commanders submitted here and in the war diaries. This situation was +changed through Admiral Dönitz’s order of 17 September 1942, in which he +forbade rescue measures on principle. The decisive sentences are: + + “The rescue of members of the crew of a ship sunk is not to be + attempted. Rescue is contradictory to the most primitive demands + of warfare, which are the annihilation of enemy ships and + crews.” + +It has been disputed by the Prosecution that this actually prohibits +rescue. It looks upon this order as a hidden provocation to kill the +shipwrecked, and it has gone through the press of the world as a command +for murder. If any accusation at all has been refuted in this Trial, +then it seems to me to be this ignominious interpretation of the order +mentioned above. + +How was this order brought on? Beginning with June 1942, the losses of +German submarines through the Allied air force rose by leaps and bounds, +and jumped from a monthly average of 4 or 5 during the first 6 months of +1942 to 10, 11, 13, finally reaching 38 boats in May 1943. Orders and +measures from the command of submarine warfare multiplied in order to +counter those losses. They were of no avail and every day brought fresh +reports of air attacks and losses of submarines. + +This was the situation when on 12 September it was reported that the +heavily armed British troop transport _Laconia_ with 1,500 Italian +prisoners of war and an Allied crew of 1,000 men and some women and +children aboard had been torpedoed. Admiral Dönitz withdrew several +submarines from current operations for the purpose of rescuing the +shipwrecked, no distinction being made between Italians and Allies. From +the very start the danger of enemy air attacks filled him with anxiety. +While the submarines during the following days devotedly rescued, towed +boats, supplied food, and so forth, they received no less than three +admonitions from the Commander to be careful, to divide the shipwrecked, +and at all times to be ready to submerge. These warnings were of no +avail. On 16 September one of the submarines displaying a Red Cross flag +and towing life boats was attacked and considerably damaged by an Allied +bomber; one lifeboat was hit and losses caused among the shipwrecked. +Following this report the Commander sent three more radio messages with +orders immediately to submerge in case of danger and under no +circumstances to risk the boats’ own safety. Again without avail. In the +evening of that day, 17 September 1942, the second submarine reported +that during rescue actions it had been taken unawares and bombed by an +airplane. + +Notwithstanding these experiences, and in spite of the explicit order +from Führer headquarters not to endanger any boats under any +consideration, Admiral Dönitz did not discontinue rescue work, but had +it continued until the shipwrecked were taken aboard French warships +sent to their rescue. However, this incident was a lesson. Due to enemy +air reconnaissance activity over the entire sea area, it was simply no +longer possible to carry out rescue measures without endangering the +submarine. It was useless to give orders over and over again to +commanders to undertake rescue work only if their own boats were not +endangered thereby. Earlier experiences had already shown that their +human desire to render aid had led many commanders to underestimate the +dangers from the air. Yet it takes a submarine with decks cleared at +least one minute to submerge on alarm, while an airplane can cover 6,000 +meters in that time. In practice this means that a submarine engaged in +rescue action when sighting a plane has not time enough to submerge. + +These were the reasons which caused Admiral Dönitz directly after the +close of the _Laconia_ incident to forbid rescue measures on principle. +This was motivated by the endeavor to preclude any calculation on the +part of the commander as to the danger of air attack whenever in +individual cases he should feel tempted to undertake rescue work. + +It is difficult to judge the actual effects of this order. From 1943 on +about 80 percent of the submarines were fighting against convoys, where +even without this order rescue measures would have been impossible. +Whether or not some commander would have, without this order, again +risked concerning himself with the lifeboats, nobody can tell with +certainty. As is known, an order existed since the middle of 1942 to +bring in as prisoners, if possible, captains and chief engineers. Over a +period of almost 3 years this order was carried out not even a dozen +times, which proves how high the commanders themselves estimated the +danger to their boats in surfacing. On the other hand, nothing was more +distressing for members of the crews of torpedoed ships than to be taken +aboard a U-boat, because of course they knew that their chance of being +rescued was much better in a lifeboat than on a U-boat which, with a +probability of at least 50 percent, would not return to its base. +Therefore, I arrive at the conclusion, as did Admiral Godt, that the +_Laconia_ order may have cost the lives of some Allied seamen just as it +may have saved the lives of others. Be that as it may, in the face of +the enormous losses by the enemy air forces the order forbidding rescue +was justified. It was completely in line with the basic idea of the +precedence of one’s own vessel and of one’s own task, as prevailing in +all navies; a principle which I believe I have proved as commonly valid +in view of existing British and American orders and practices. + +How then can the Prosecution consider this order an “order to murder”? +Grounds for this are said to be furnished by the discussion between +Hitler and the Japanese Ambassador, Oshima, in January 1942, in which +Hitler mentioned a prospective order to his U-boats to kill the +survivors of ships sunk. This announcement, the Prosecution infers, +Hitler doubtless followed up, and Admiral Dönitz carried it out by the +_Laconia_ order. Actually, on the occasion of a report on U-boat +problems which both admirals had to make in May 1942, the Führer +suggested that in future action should be taken against the shipwrecked, +that is, to shoot them; Admiral Dönitz immediately rejected this sort of +action as thoroughly impossible and Grossadmiral Raeder unreservedly +agreed with him. Both admirals specified the improvement of torpedoes as +the only permissible way to increase losses among the crews. In the face +of the opposition of both admirals Adolf Hitler dropped his proposal, +and following this report no order whatever was given concerning +shipwrecked crews, let alone concerning the killing of the shipwrecked +by shooting. The destruction of the crews through improved efficiency of +the torpedoes is an idea which for the first time cropped up during this +discussion in May 1942, and which recurs in later documents of the Naval +Operations Staff. I must therefore express myself on the legality of +such a tendency. According to classical international law the +destruction of combatants constituted a legal aim of war actions, not +however that of noncombatants.[27] In view of the development of the +last wars one may be doubtful whether this classical theory still has +any validity. I am inclined to regard the hunger blockade as the first +important infringement of this theory, which by cutting off all food +supply was aimed at the civilian population, therefore the noncombatants +of a country. The victims of this during the first World War were +estimated at 700,000 people.[28] Although this blockade was frequently +acknowledged to be inadmissible according to international law,[29] it +was nevertheless practiced, and therefore it amounts to an infringement +of the principle of protection for noncombatants against war +measures.[30] + +The second great infringement was brought on by aerial warfare. I do not +wish to discuss the unsolvable question of who started it, but only to +state the fact that war from the air, at least during the two final +years, was aimed against the civilian population. If in dozens of +attacks on residential quarters of German cities thousands or tens of +thousands of civilians were among the victims while soldiers numbered +only a few dozen or a few hundred, then nobody can assert that the +civilian population was not included in the target of the attack. The +mass dropping of explosives and incendiary bombs on entire areas does +not permit of doubt, and the use of the atomic bomb has produced final +evidence thereof. + +In view of the hundreds of thousands of women and children who in this +manner miserably perished in their houses by being buried, suffocated, +or burnt to death, I am surprised at the indignation of the Prosecution +about the loss of about 30,000 men who lost their lives in war areas on +ships which were armed and carried war material, and often enough bombs +destined for German cities. Moreover, most of these men died in combat, +that is, by mines, aircraft action, and especially in attacks on +convoys, all actions which according to British conception, too, were +lawful. + +The German Naval Operations Staff regarded these men as combatants. The +British Admiralty takes the opposite standpoint in its orders to the +merchant navy. In this connection Oppenheim, the foremost British expert +on international law, before the outbreak of the first World War still +maintained that the crew should be put on the same level as +combatants.[31] He points to the century-old practice, especially +followed in Britain, of taking the crew of merchant ships prisoner of +war. He find’s this principle confirmed in the 11th Hague Convention of +1907, and looks upon the crew of the merchant navy as potential members +of the navy. The legal position in their defense against a warship is +described by him as “entirely analogous to the position of the +population of an unoccupied territory which takes up arms in order to +combat invading troops.” It is well known that such a force is +considered a combat unit. According to Paragraph 2 of the Hague +Convention on Land Warfare, they are considered combatants irrespective +of whether or not the individual actually makes use of weapons. +Accordingly, Oppenheim also refused to make any distinction among the +crew, between men who are enrolled in the enemy navy and men who are +not. + +If this interpretation was already valid before the first World War, it +certainly was unassailable in the year 1942, at a time when there were +no more unarmed enemy ships and when the neutrals who happened to enter +the zone of operations were exclusively moving in enemy convoys, which +made them, just like enemy ships, integral parts of the enemy forces. +All of them had lost their peaceful character and were considered as +being guilty of active resistance. Active resistance against acts of war +is not permitted to any noncombatant in land warfare and results in his +being punished as a _franc-tireur_. And in naval warfare should a ship’s +crew be entitled to the combatant’s privileges, without suffering any of +his disadvantages? Should a crew be permitted to participate in every +conceivable act of war, even including the use of guns and depth +charges, and yet remain noncombatant? Such an interpretation renders +illusory the entire concept of a noncombatant. Nor does it make any +difference whether or not only part of the crew has anything to do with +the firing of the guns. The ship as an entity represents a fighting +unit, and on board a merchant ship more people actually had something to +do with the handling of weapons than on board a submarine. These men +were trained under military supervision, they fired the guns along with +gunners of the navy, and the use of their weapons was regulated +according to the Admiralty’s orders.[32] The crews of ships were +accordingly combatants and thus it was legitimate for the adversary to +try to destroy them by the use of arms. + +This explains at the same time the sentence about the destruction of +ships and crews, which is considered by the Prosecution as a specific +indication that the _Laconia_ order bore the character of a murder +order. There has been enough discussion concerning the meaning of this +sentence as an argument for forbidding rescue work. It may, taken out of +its context, give cause for misunderstanding. But whoever goes to the +trouble of reading the entire order cannot misunderstand it. To me the +decisive crime appears to be that, in accordance With its origin, it was +never meant to be a murder order and was not interpreted as such by the +commanders. This is proved by the declarations and statements of dozens +of submarine commanders. From its context it could not have been +interpreted as a murder order. In fact in the next paragraphs it was +explicitly ruled that so far as possible certain members of the crew +should be brought back as prisoners. Surely one must credit a military +command with enough intelligence, when giving such a murder order at +all, to refrain from additional orders to conserve a number of witnesses +of its crime. + +Contrary to the Prosecution, the British Admiralty clearly did not +believe in such a murder order. Otherwise it would not have given orders +to its captains and chief engineers to escape capture by German +submarines by camouflaging themselves as plain sailors while in the +lifeboats. According to the interpretation by the Prosecution, such an +order would indeed have meant that the captain would have been killed by +the submarine along with all the other members of the crew. + +Furthermore, the Prosecution have quoted the order to attack so-called +“rescue ships” as evidence of the intention to kill shipwrecked people. +However, only the individual who is either in the water or in a lifeboat +is shipwrecked. A shipwrecked combatant who is again on board a ship is +nothing but a combatant, and accordingly the legitimate aim of an +attack. I have already pointed out, during the hearing of evidence, the +shooting down of German sea rescue planes with intent to kill the +rescued airmen, in order to show that the enemy acted according to the +same conception. + +I shall discuss as briefly as possible the depositions of witnesses on +which the Prosecution tries to base its interpretation of the Laconia +order. In my opinion, the deposition of Oberleutnant zur See Heisig, as +made here before the Tribunal, is irrelevant. His earlier affidavit is +wrong, and we know why from the witness Wagner. Here, before the +Tribunal, Heisig has explicitly denied that in Grossadmiral Dönitz’s +address to the cadets of the submarine school in September 1942 there +was any reference to the effect that shipwrecked people should be fired +upon. Rather did he personally draw this conclusion from the passage +that total war must be waged against ship and crew, with added reference +to air bombing. His interpretation may be explained by the fresh +impression of the bombing of Lübeck, which he had just experienced. The +other listeners did not share this interpretation; in fact, it did not +even occur to them. This is evident from the deposition of three persons +who heard the address. The further assertion of Heisig, that an officer +unknown to him had instructed him on an unknown occasion that the men +should be ordered below deck when exterminating shipwrecked people, I +consider as an improvisation of his imagination, which appears to be +easily excited. If this had really been the case, then so astonishing an +occurrence, which would have been in contradiction to all training +principles of the Navy, must have made such an impression on a young +officer that he would have retained some recollection of the full +circumstances of such an instruction. + +The testimony of Korvettenkapitän Möhle must be taken much more +seriously, because he had—there is no doubt about it—at least hinted +to a few submarine commanders that the _Laconia_ order demanded, or at +least approved of, the killing of shipwrecked. Möhle did not receive +this interpretation either from Admiral Dönitz himself, nor from the +Chief of Staff nor his chief assistant, Fregattenkapitän Hessler; that +is to say, from none of the officers who alone would have been qualified +to transmit such an interpretation to the chief of a flotilla. + +How Möhle actually arrived at this interpretation has in my opinion not +been explained by the Trial. He maintains that it was due to the fact +that Korvettenkapitän Kuppisch from the staff of the Commander of +U-boats had told him the story of _U-386_, a boat whose commander had +been reprimanded for not having shot Allied airmen drifting in a rubber +dinghy. This explanation of Möhle’s cannot be correct. It is proven +beyond any doubt by the War Diary and by witnesses that the commander of +_U-386_ had been reprimanded because he did not take on board the airmen +concerned and bring them back. The whole affair concerning _U-386_, +furthermore, took place a year after the _Laconia_ incident in September +1943 and Korvettenkapitän Kuppisch, who was supposed to have told it, +had already been killed in action as a U-boat commander in August 1943. +It is not my task to try to explain how Möhle actually acquired his +knowledge about the _Laconia_ order. One thing at any rate has been +proven, namely, that Admiral Dönitz and his staff had not caused this +briefing to be given, nor did they know anything about it. Considering +the frequent personal contacts between the U-boat commanders and the +staff of the Commander of U-boats this can only be explained by the fact +that the few commanders whom Möhle thus briefed did not take his words +seriously. + +Is Admiral Dönitz thus responsible for the interpretation of the +_Laconia_ order as given by Möhle? Criminal responsibility in the first +place presupposes guilt, that is to say, possibility of foreseeing the +result. Considering the close contact with his flotilla chiefs and +commanders, for whom alone the _Laconia_ order was intended, Admiral +Dönitz could not foresee that a flotilla chief might give such an +interpretation to that order without taking any steps to be enlightened +by the Commander of U-boats. Such conduct is beyond anything that could +reasonably be expected. + +Therefore all guilt is excluded. Criminal responsibility requires +another criterion, namely, that results shall be proven. This also is +entirely lacking. The Prosecution have not even made a serious attempt +to prove that any one of the commanders briefed by Möhle in that sense +ever actually fired on shipwrecked crews. As far as we are informed, +such a thing occurred only once in this war on the German side in the +case of Kapitänleutnant Eck. It is significant that this case was +presented not by the Prosecution, but by the Defense. For the conduct of +Eck has nothing whatsoever to do with the _Laconia_ order as the +Prosecution desires to construe it. He was not concerned with the +destruction of human lives but with the removal of wreckage and floats +from which the Allied airplanes could deduce the presence of a German +U-boat in the area. For this conduct he and two of his officers were +sentenced to death, and thereby punished with a severity which less +agitated times will no longer comprehend. + +The two cases presented by the Prosecution, where shipwrecked crews +allegedly were shot at, are so obviously unsuited to prove this +accusation that I need not deal with them any further. The testimony +about the sinking of the _Noreen Mary_ bears the stamp of phantasy in +various points, and in the case of the attack on the _Antonica_ the +intention to destroy shipwrecked people is out of the question because +everything was over in 20 minutes and the night was dark. + +I was in the fortunate position to be able to present to the Tribunal a +compilation of the Naval Operations Staff concerning a dozen cases in +which Allied forces had allegedly shot at German shipwrecked crews. It +seems to me that every one of these instances is better than that of the +Prosecution, and some appear rather convincing. I therefore attach all +the more value to the sober attitude assumed by the Naval Operations +Staff when transmitting their opinion on these cases to the Führer’s +headquarters. + +They point out that: (1) Part of the incidents occurred during combat +operations; (2) shipwrecked men swimming in the water might easily be +led to believe that a miss on other targets was aimed at them; (3) so +far no written or verbal order for the use of arms against shipwrecked +crews had been traced. I can only request that these principles be +equally applied to the incidents presented by the Prosecution. + +In the same written opinion to the Führer’s headquarters the Naval +Operations Staff reject reprisals by destroying enemy shipwrecked; that +was on 14 September 1942, 3 days before the _Laconia_ order. Since the +latter, as a radio order, came to the knowledge of the Naval Operations +Staff, it would doubtlessly have been canceled in accordance with the +opposite viewpoint just expressed to the Führer’s headquarters if it had +been understood to be an order for the shooting of shipwrecked crews. + +And now I am coming to the positive counterevidence against the opinion +of the Prosecution. It consists in the first place of the number of +rescued Allied sailors. This amounted, according to a survey by the +British Minister of Transport in 1943, to 87 percent of the crews. Such +a result is simply not compatible with an order for destruction. +Furthermore, it has been established that Grossadmiral Dönitz in 1943, +that is, after the _Laconia_ order, rejected all consideration of action +against shipwrecked crews. + +In a written opinion given to the Foreign Office on 4 April 1943, a +directive to the U-boats to take action against lifeboats or shipwrecked +crews was considered impossible by the Naval Operations Staff, since +that would go against the grain of every sailor. In June 1943 +Grossadmiral Dönitz, on receiving reports from Korvettenkapitän Witt +about British aviators having fired on shipwrecked crews of German +submarines, most decidedly rejected the idea of attacking a foe rendered +defenseless in combat, stating that this was incompatible with our +principles of warfare. + +Summing up, I am convinced that the assertion of the Prosecution that +German submarines had received an order to murder shipwrecked men has +been strikingly disproved. Grossadmiral Dönitz stated here that he would +never have allowed the spirit of his submarine men to be endangered by +mean acts. With losses ranging from 70 to 80 percent, he could only +replenish his troops with volunteers if he kept the fight clean, in +spite of its being tough. And if the Tribunal will recall the +declaration of the 67 commanders in British captivity, it will have to +admit that he created an attitude and morale which survived defeat. + +I have endeavored to present to the Tribunal the most important facts +supplemented by a number of legal considerations regarding naval warfare +in order to clarify the most important problems to be discussed here +from the point of view of the Defense. We are concerned with the +examination of the behavior of admirals in naval warfare, and the +question of what is permissible according to international law is +intimately connected with what is necessary according to the military +standpoint. Therefore, in examining this particular point of the +Indictment, I deeply regret that the Charter of this Tribunal deprives +the accused officers of a privilege guaranteed to them as prisoners of +war by the Geneva Convention, namely, the passing of judgment by a +military tribunal applying the laws and regulations binding on its own +officers. According to Article 3 of the Charter, I am not allowed to +question the competency of this Tribunal. I can therefore only request +the Tribunal to make up for the unfairness that I see in the +afore-mentioned article of the Charter by applying the same standards, +where the military appreciation and moral justification of the actions +of these German admirals is concerned, as the Tribunal would apply to +admirals of their own countries. A soldier, out of practical knowledge +of the procedure in warfare as applied not only by his own country but +also by the adversary, is keenly sensitive to the dividing line between +combat and war crimes. He knows that the interpretation of international +law concerning what is allowed or forbidden in naval warfare is in the +last resort governed by the interests of his country. An insular power +like Great Britain, having long and vulnerable sea lanes, has always +looked upon these questions from a different angle than the continental +powers. The attitude of the United States from the renunciation of +submarine warfare by the Root Resolution of 1922 to unrestricted +submarine warfare against Japan in 1941, reveals how a change in +strategic position can entail a change in legal evaluation. No one can +tell to what extent a changed strategic position at sea will cause a +modification of legal conception. No one can know to what degree the +development of air forces and the efficacy of bombs will increasingly +force navies under water and render obsolete all previous conceptions of +submarine warfare.[33] For a naval officer these are obvious +reflections, and they should prevent a man of law from settling +controversial questions of law and policy pertaining to naval war at the +expense of those whose professional duty it is to direct navies. + +In the first World War German submarine warfare was accompanied by a +storm of indignation. It seems significant to me today that the British +historian, Bell, in a paper intended only for official use of the +Foreign Office, judges the right to such indignation as follows: + + “It is an old rule of military honor never to belittle the deeds + of an enemy who has put up a stiff and brave fight. If this rule + had been followed in England, the public would better appreciate + the place which the war between submarines and commerce will + occupy in the history of strategy and of war. It is unfortunate + that the cries of terror as well as the unseemly insults of + journalists were repeated by responsible people, with the result + that the slogans ‘piracy’ and ‘murder’ entered the vocabulary + and have engendered the corresponding feelings in the hearts of + the people.”[34] + +I must now treat the other points of the Indictment against Grossadmiral +Dönitz which are not concerned with naval war. To begin with, there is +the charge of preparation of aggressive wars. It is known how much +contradiction this very accusation has aroused on the part of +professional officers of probably all Allied countries. In answer to +such attacks in public, Justice Jackson formulated for the press (_The +Stars and Stripes_, European Edition, 5 December 1945) the ideas of the +Prosecution regarding this subject as follows: + + “I have made it clear that we do not prosecute these militarists + because they served their country, but because they dominated it + and led it into war. Not because they conducted the war, but + because they have been driving to war.” + +If this standard is used, then for the defense of Admiral Dönitz against +the charge of preparing aggressive wars I need only point to the result +of the evidence. At the beginning of the war he was a relatively young +commander; his only task was the training and commanding of submarine +crews; he did not belong to the General Staff in the meaning of the +Indictment and did not participate in any of the addresses which were +presented here as proof of war intentions. The charge that he had +advocated the occupation of submarine bases in Norway is likewise +disproved. The same applies to the allegation that in 1943 he had +proposed an attack upon Spain in order to capture Gibraltar. The +conquest of Gibraltar against the will of Spain was absolutely +impossible and out of the question during the entire war, and especially +so in 1943. + +For Germany the war had already reached a stage of defense, even of +dangerous setbacks, on all fronts at the time when Admiral Dönitz was +appointed Commander-in-Chief of the Navy on 1 February 1943. This fact +may be significant for his participation in the so-called conspiracy. +The Prosecution is not very clear about the precise moment at which they +want to fix the beginning of such participation. In the individual +Indictment intimate connection with Hitler since 1932 is mentioned. +This, however, is obviously an error. Admiral Dönitz did not become +acquainted with Hitler until the autumn of 1934, on the occasion of the +submission of a military report, and in the following years talked to +him briefly and always only about military problems, altogether eight +times, and never alone. Since, aside from this fact, the defendant never +belonged to any organization which is accused of conspiracy by the +Prosecution, I see no connection of any kind with this conspiracy prior +to 1 February 1943. + +All the more important is the question of the retroactive effects of +joining the conspiracy, as has been illustrated by the British +Prosecutor by the example of the perpetrators of railway sabotage. This +idea of guilt, retroactive on past events, is very difficult for the +German jurist to understand. The continental concept of law is reflected +by the formulation of Hugo Grotius: “To participate in a crime a person +must not only have knowledge of it but also the ability to prevent +it.”[35] + +While the entire legal concept of the conspiracy in itself represents a +special creation of Anglo-Saxon justice in our eyes, this applies even +more to the retroaction of the so-called conspiracy. A judgment laying +claim to international validity, one which should be understood by the +peoples of Europe and especially by the Germans, must be based upon +generally recognized principles of law. This, however, is not the case +regarding a retroactive guilt. Though such a legal construction may seem +fitting in dealing with certain typical crimes, it seems to me entirely +inapplicable in judging events such as are being discussed here. + +Admiral Dönitz became the Commander-in-Chief of the Navy in the course +of a normal military career entirely free of politics. The appointment +was based upon the proposal of his predecessor, Grossadmiral Raeder, for +whom his proven abilities in the guidance of U-boat warfare alone were +the determining factor. Specific acceptance of the appointment was no +more required than in the case of an appointment to any other military +position. Admiral Dönitz entertained the sole thought, as any officer +might well have done in a similar position, whether he would be equal to +the task and whether he could accomplish it in the best interest of the +Navy and of his people. All other considerations which the Prosecution +apparently expected of him during this period, namely, as to the +legitimacy of the Party Program and of the policy of the Party from 1922 +on, as well as German internal and foreign policy since 1933, can be but +fictitious; they have nothing to do with the facts. Fictions of such +nature are not limited by time nor by reality. Is the responsibility for +past measures on taking over a high position to extend only to acts of +the present cabinet, or is it to extend to acts of former cabinets, and +over what period? Is it to comprise only one’s own internal and foreign +policy or is it to include one’s allies? Such considerations cannot be +refuted logically; however, they lead to unacceptable results and show +the impracticability of the idea of retroaction regarding the so-called +conspiracy. + +To measure by exact standards the participation in such a conspiracy is +difficult enough, if events not of a criminal but of a military and +political nature are involved. Of what meaning are such concepts as +“voluntary accession” and “knowledge of the criminal plan” when in times +of greatest danger an officer assumes the task to prevent the collapse +of his nation’s maritime warfare? + +Even the Prosecution seems to realize this. For, corresponding to their +general idea, they attempt to link Admiral Dönitz with the conspiracy in +a political way. This is accomplished by the assertion that he became a +member of the Reich Cabinet by virtue of his appointment to the High +Command of the Navy. This allegation is based upon the decree whereby +the Commanders-in-Chief of the Army and of the Navy were invested with +the rank of Reich Minister and upon the order of Hitler were to +participate in Cabinet meetings. + +It is evident that one is not actually a Reich minister merely by being +invested with the rank of Reich minister. Also one is not a member of +the Cabinet if one is only permitted to participate in it upon special +orders. This obviously indicates that he was only to be consulted on +technical matters, but never had authority to gain information about +other departments, much less to give advice. One cannot, however, speak +of a political task and a political responsibility without the existence +of such an authority. For an activity as a minister all legal basis is +lacking. According to the Reich Defense Law there existed for the entire +Armed Forces but one minister, the Reich War Minister. This post +remained unoccupied after the resignation of Field Marshal Von Blomberg. +The business of the ministry was conducted by the Chief of the High +Command of the Armed Forces. A new ministry was not created either for +the Army or for the Navy. The Commanders-in-Chief of the Army and of the +Navy therefore would have had to be ministers without portfolio. Since, +however, they each headed a department, namely, the Army and the Navy, +such an appointment would have constituted a contradiction to all legal +customs of the State. The countersigning of all laws in which the +minister participates according to his jurisdiction must be considered +the basic criterion of all ministerial activity. There exists not a +single law which was countersigned by the Commander-in-Chief of the +Navy. I have demonstrated this to the Tribunal by the example of the +Prize Ordinance. That is to say that, even applying the legal standards +of a democratic system, the Commander-in-Chief of the Navy cannot be +designated as a member of the Reich Cabinet, because he lacked all +authority of participation in legislative acts and every collective +responsibility for policies assumed. His task was, and remained, a +military one even though for reasons of etiquette he was put on an equal +basis in rank with other Reich ministers. + +The Prosecution themselves realized that a Reich Government in the +constitutional sense no longer existed during the war, and consequently +stated that the actual governing was carried out by those who +participated in the situation conferences at the Führer’s headquarters. +As all witnesses examined here stated, we are concerned here with events +of a purely military nature, where incoming reports were presented, +military measures discussed, and military orders issued. Questions of +foreign policy were only very rarely touched upon if they had any +connection with military problems; they were, however, never discussed +and no decision was rendered on them in these Führer conferences on the +situation. Internal policy and the security system were never on the +agenda. Insofar as nonmilitary persons participated, they were +attendants or listeners who gathered information for their respective +departments. + +The Reichsführer SS or his deputy were present for the command of the +Waffen-SS, and during the last year of war also for the Reserve Army. +Admiral Dönitz always participated in these Führer conferences when he +was at the Führer’s headquarters. Notes taken down by whoever +accompanied him on all these meetings and discussions of the +Commander-in-Chief are all in the possession of the Prosecution. As the +Prosecution has not presented a single one of these notes from which it +would appear that the Commander-in-Chief of the Navy participated in +reporting on or in discussing and deciding affairs of a political +nature, one can assume that such notes do not exist. + +Thus the testimony of witnesses has been confirmed according to which +the Führer conferences had nothing whatever to do with governing in a +political sense, but were exclusively an instrument of the military +leadership. Therefore, an over-all responsibility of Grossadmiral Dönitz +for all events that occurred since 1943, which in the course of this +Trial have been designated as criminal, certainly does not exist. +Consequently, I shall deal only with those individual allegations by +which the Prosecution tries directly to connect Admiral Dönitz with the +conspiracy. I believe I am all the more justified to proceed in that +manner, as a short time ago the Tribunal refused the cross-examination +of witnesses in the Katyn case with the argument that no one was +accusing Admiral Dönitz in connection with this case. I conclude, +therefore, that at any rate in the eyes of the Tribunal he is only +accused of such cases wherein he allegedly directly participated. + +To begin with, this does not apply to the Führer’s order for the +extermination of sabotage Commandos, dated 18 October 1942. The +Prosecution has tried to establish that this order had been presented to +Admiral Dönitz in detail, together with all possible objections, shortly +after his assumption of the position of Commander-in-Chief of the Navy. +It has failed to establish this assertion. In fact Dönitz, as he himself +admits, did read or have presented to him the order in question in the +autumn of 1942 in his capacity of Commander of U-boats, and in the same +form in which the front-line commanders received it. + +I do not wish to speak here of the circumstances which led to objections +against this order on the part of the High Command of the Armed Forces. +Indeed, all these circumstances could not be discernible to one who +received this order at the front. For such a man it was a matter of +reprisal against saboteurs who seemed to be soldiers, but did not fight +according to the regulations which are binding upon soldiers. Whether +such reprisals were admissible at all according to the Geneva +Convention, and to what extent, could not be judged by, nor did that +come within the competence of, the recipient of the order. Every +superior officer, at any rate, probably recognized that the order not to +grant any pardon, and to hand over such persons in certain cases to the +SD, was in itself an infringement of the rules of war. However, since +the essence of any reprisal is to avenge a wrong on the part of the +enemy with a wrong on one’s own part, this does not prove anything +concerning the legitimacy or illegitimacy of the reprisal order. If no +one but the leadership of the State is competent to order reprisals, +then hundreds or thousands of German officers cannot be required today +to have considered themselves also competent, and to have been +presumptuous enough to verify orders whose actual and legal basis was +entirely unknown to them. In this case the principle prevails, at least +for the front-line commanders, that the subordinate may, when in doubt, +rely on the order as given.[36] + +Now, the Prosecution seems to be of the opinion that Admiral Dönitz a +few months later, when he had become Commander-in-Chief of the Navy, had +the opportunity and also the obligation to inform himself as to the +basis of the Commando Order. This conception fails to appreciate the +duties of a Commander-in-Chief of the Navy. He has to wage naval war. +The whole German naval war, especially submarine warfare, in the spring +of 1943, owing to huge losses inflicted by the enemy air force, was on +the verge of collapse. These were the worries with which the new +Commander-in-Chief had to cope, in addition to an abundance of new +problems concerning the Navy which were coming up. How can one require +such a man as in the quietest of times to cope with an order of remote +date, which had nothing whatever to do with naval warfare? On the +contrary, a special paragraph explicitly excluded prisoners taken during +naval operations. + +A word or two on the channels of command. The naval units were under the +control of the Naval Operations Staff only in those matters which +belonged to the duties of the Navy, that is to say, naval warfare and +coastal defense by artillery. Concerning so-called territorial questions +they were not subordinate to the Naval Operations Staff but to the Armed +Forces commander of the theater of war in which their basis was +established. Orders concerning such measures of war on land were given +without collaboration on the part of the Naval Operations Staff and +their execution was not reported to them. Just as hardly anyone can +think seriously of holding a general responsible for German submarine +warfare, just as little, in my opinion, does it seem justified to hold +an admiral responsible for orders given in land warfare. + +Mr. President, I have come to the end of a section. + +THE PRESIDENT: Certainly. We will break off. + + [_The Tribunal recessed until 1400 hours._] + + + + + _Afternoon Session_ + +FLOTTENRICHTER KRANZBÜHLER: Before the noon recess I was discussing the +fact that units of the Navy were not subordinate to the Naval Operations +Staff in matters affecting warfare on land. + +This channel of orders for territorial questions also explains the +complete ignorance of Admiral Dönitz and of his colleagues in the Naval +Operations Staff about the delivery to the SD of the crew of the +Norwegian motor torpedo boat _MTB 345_ after its capture by units under +Admiral Von Schrader. As the testimony of witnesses and the records of +the Oslo War Crimes Court show, the Naval Operations Staff only received +an operational report about the capture of the boat and the number of +prisoners. All other details, the discovery on board of material for +sabotage, of civilian suits and sabotage orders, and the treatment of +the crew as saboteurs according to the Commando Order were regarded as +territorial matters, and as such dealt with by Admiral Von Schrader and +the Armed Forces commander in Norway. The decision regarding the fate of +the crew came from the Führer’s headquarters in reply to an inquiry from +Gauleiter Terboven. Not only is there no proof that the Naval Operations +Staff took part in those territorial questions, but this must in fact be +considered refuted on the basis of the evidence submitted and the chain +of command as explained. + +I regard as the second attempt of the Prosecution to establish a +participation in the alleged conspiracy to commit war crimes the +submission of Admiral Wagner’s minutes on the question of withdrawal +from the Geneva Convention in the spring of 1945. The details are +contained in Wagner’s testimony, according to which the Führer pointed +out in a conference on 17 February that the enemy propaganda about the +good treatment of prisoners of war was clearly having an influence on +the units fighting on the Western Front, and that many cases of +desertion to the enemy were being reported. He ordered that the question +of a withdrawal from the Geneva Convention be investigated. In this way +he wanted to convince his own soldiers that they could no longer rely +upon receiving good treatment as prisoners of war, and thus create a +countereffect against enemy propaganda. Two days later Hitler returned +to this idea, although he then put forward another reason as the main +one. He termed enemy warfare in the East and the bomb attacks on the +German civilian population an outright renunciation of international law +by the enemy, and he, for his part, also desired to free himself from +all obligations by withdrawing from the Geneva Convention. Once more he +asked for the opinion of the Armed Forces in this matter and addressed +himself directly to Grossadmiral Dönitz, who did not answer. The +attitude of the military leaders on this matter was unanimously +negative. + +On the next day, just before the daily conference on the situation, a +10-minute conversation took place between Grossadmiral Dönitz, +Generaloberst Jodl, and Ambassador Hewel; in the course of this +conversation Dönitz expressed his negative attitude. According to the +notes of Admiral Wagner he said that “it would be better to take the +measures considered necessary without previous announcement and, at any +rate, to save face before the world.” The Prosecution sees in this a +readiness and a design to expose hundreds of thousands of Allied +prisoners of war to arbitrary murder. + +Admiral Dönitz himself has no recollection of this sentence. That is not +surprising, as this is not a record, but a summary of a lengthy +conversation in four sentences, the summary being worded on the day +after the conversation by Admiral Wagner. This summary admits that the +Grossadmiral disapproved of any “wild measures” which would put us in +the wrong from the beginning, and considered justifiable only measures +actually warranted by the conduct of the enemy in each case. Since +Wagner himself, as the author of the transcript, should know best what +he meant thereby, I personally cannot add anything to this statement. +The interpretation of the Prosecution is equally little supported by +other circumstances. There was no question at all of keeping any +measures secret; they had to be made known, regardless of whether they +were meant to deter our own deserters or as reprisals. But Wagner’s note +does not mention any kind of concrete measures to be taken, and all +witnesses present at this situation conference in Hitler’s headquarters +state that not a word was spoken on that subject. The idea of killing +prisoners of war could not, therefore, have been present in the minds of +any of the participants in this discussion which Wagner noted down. + +Now it has come to light here, through the statements of the Defendants +Ribbentrop and Fritzsche, that apart from the action for which he was +preparing the ground during the discussion with the generals, Hitler had +evidently at the same time planned a second action, in which only +Goebbels and Himmler were to participate, and which by chance also came +to Ribbentrop’s knowledge. In this action the shooting of thousands of +prisoners of war seems to have been contemplated as a reprisal against +the air attack on Dresden. Hitler, very wisely, did not give the +slightest indication of such a plan to the generals. This plan was not +followed up and no reprisals were taken. + +And now I return to the facts. It is a fact that Admiral Dönitz +disapproved of the withdrawal from the Geneva Convention, and that +Hitler, in view of the attitude of all military leaders who clearly +opposed it did not follow up the idea any further. It is also a fact +that no measures in violation of international law were taken by the +Germans as a result of this remark which the Prosecution has criticized, +and finally it is a fact that enemy sailors who were captured were sent +to a prisoner-of-war camp of the Navy where they were treated in an +exemplary way up to the last day of the war. + +Whoever, in his own sphere, behaved as Admiral Dönitz did with regard to +the prisoners of war of the Navy, cannot reasonably be charged with +having thrown overboard all standards of law and ethics applying to +prisoners of war. A British commander has certified that when the +prisoner-of-war camp of the Navy was taken over by British troops, all +prisoners without exception said that they had been treated with +fairness and consideration. The Tribunal will, no doubt, appreciate such +unanimous expression of views, especially after what has come to light +elsewhere in these proceedings with regard to the breakdown not only by +Germans in the proper treatment of prisoners of war. + +I shall now deal with the conspiracy to commit Crimes against Humanity, +and I should like first of all to point out that Admiral Dönitz is not +accused, under Count Four of the Indictment, of direct commission of +Crimes against Humanity. Not even participation in the conspiracy to +commit Crimes Against Humanity was contended in the detailed charges. +That, I would say, is an admission that there was in fact no relation, +between his activity and the Crimes against Humanity of which the +Prosecution has brought evidence. Nevertheless the Prosecution presented +some documents which are apparently meant to prove his participation in +the responsibility for certain Crimes against Humanity. + +In judging these documents the most important question always is: What +did Admiral Dönitz know of those alleged crimes? On this subject I +should like to make one point clear. During the entire war he resided +and lived at his staff headquarters, first on the North Sea coast, after +1940 in France, in 1943 for a short time in Berlin, and then in the Camp +Koralle near Berlin. When he was at the Führer’s headquarters, he stayed +with the naval staff there. Even outside his duty, his time was thus +spent almost exclusively with naval officers. This may have been a +weakness, but it is a fact which gives an additional explanation of his +lack of knowledge of many events. + +The fact that the defendant forwarded a proposal by the Ministry for +Armaments to employ 12,000 men from concentration camps as workers in +the shipyards proves, according to the Prosecution, that Admiral Dönitz +knew and approved of the arrest of countless innocent people and their +ill-treatment and extermination in concentration camps. + +He actually knew, of course, that concentration camps existed and he +also knew that, apart from the professional criminals, people arrested +for political reasons were kept there. As has already been explained +here, the protective custody of political adversaries for reasons of +safety is a measure adopted by all states, at any rate in an emergency, +and knowledge of such a measure can therefore incriminate no one. +However, an unusually high number of political prisoners—out of +proportion to the number of the population—may stamp a regime as a +regime of terror, but taking into account a population of 80 million in +the fifth year of a grim war, even twice or three times the number of +12,000 men, which is the number mentioned by Admiral Dönitz, would not +indicate a regime of terror, and the Prosecution will hardly claim that. + +Admiral Dönitz stated here that the Commander-in-Chief of the Navy, as +well as his collaborators and the overwhelming part of the German +people, did not know of the abuses and killings that occurred in the +concentration camps. All that the Prosecution has put forward against +this are assumptions, but no proofs. + +On this point, therefore, I will only refer to the statement of the then +Minister for Armaments, Speer, according to which the inmates of +concentration camps were much better off in industrial work than in +camp, and that they tried with all means to obtain employment in such +work. The proposal forwarded therefore did not imply anything inhuman, +but rather the opposite. + +The same request also contains a suggestion to take energetic measures +against sabotage in Norwegian and Danish shipyards, where seven out of +eight vessels under construction had been destroyed. If need be, the +personnel should be entirely or in part employed as “KZ workers” +because, so it says, sabotage of such dimensions can only occur if all +the workers silently condone it. This therefore amounts to a proposition +for security measures to consist in keeping the workers who actively or +passively participated in sabotage in a camp close to the shipyard, so +that their connections with sabotage agents would be cut off. I do not +believe that juridical objections can be raised against such measures of +security. According to the practice of all occupation troops even +measures of collective punishment would be justified in such cases.[37] + +Actually the measures proposed were never carried out and the +Prosecution presumably presents them only to accuse Admiral Dönitz quite +generally of a brutal attitude toward the inhabitants of occupied +territories. For this same purpose it even refers to a statement of the +Führer at a conference on the military situation in the summer of 1944, +according to which terror in Denmark must be fought with counterterror. +Admiral Dönitz’s only connection with this statement was that he heard +it and that his companion, Admiral Wagner, wrote it down. The Navy had +no part in this statement, nor did it take any measures as a result of +it. + +In contrast to this line of evidence of the Prosecution, I should like +to emphasize the attitude which Admiral Dönitz actually showed toward +the population of the occupied territories. There is before the Tribunal +a survey of the administration of justice by the naval courts in +protecting the inhabitants of the occupied territories against excesses +by members of the Navy. The survey is based on an examination of about +2,000 files on delicts and some of the judgments given are quoted with +the facts and the reasons of the verdicts. Judging from that survey, one +can fairly say that the naval courts protected the inhabitants in the +West and in the East with justice and severity, including their lives as +well as their property and the honor of their women. This administration +of justice was constantly supervised by the Commander-in-Chief of the +Navy as the Chief Court Administrator. Under terms of legal procedure it +was his duty to confirm death penalties imposed on German soldiers. + +The time at my disposal does not permit a more detailed discussion of +some of these judgments. A phrase expressed in one of them may be taken +to apply to all: All soldiers must know that in occupied territory as +well the life and property of others will be fully safeguarded. This was +the general attitude in the Navy, and the severity of the penalties +inflicted proves how seriously it was taken. + +I need only say a few words about the order issued in the spring of +1945, in which a German prisoner of war, a noncommissioned officer, was +cited as an example, because he had unobtrusively and systematically +done away with some Communists who were attracting attention to +themselves in their prison camp. As Admiral Wagner recalled, it was +actually an informer who was liquidated. But the facts were camouflaged +as described in order to avoid giving enemy intelligence a clue to the +camp and the person of the noncommissioned officer. There cannot be any +doubt that this order in its true background could be justified in view +of the enormous number of political murders which have been committed +with the connivance or assistance of governments engaged in the war, the +perpetrators being today extolled as heroes. I cannot, however, consider +as serious the argument that the unfortunately camouflaged wording could +be proof of a general plan to liquidate Communists. A court judgment for +the protection of Communists will reveal the true circumstances. A +sergeant had stolen hospital blankets which were intended for Soviet +prisoners of war and had extracted a dead prisoner’s gold teeth. This +sergeant was sentenced to death by a naval court and executed after the +sentence had been confirmed by the Commander-in-Chief. + +Finally, the Prosecution also established a connection with the Jewish +question through a remark in which Grossadmiral Dönitz speaks of the +“creeping poison of Jewry.” On this point I should like to add some +comments. Dönitz knew as little of the plan for the destruction of the +Jews as he did of its execution. He did know of the resettlement in the +Government General of Jews living in Germany. I do not think that a +resettlement of this sort can be condemned at a time when expulsions of +Germans on a much larger scale are taking place before the eyes of a +silent world. Here, too, I refer to a sentence of long penitentiary +terms against two German sailors who, together with some Frenchmen, had +robbed French Jews. From the findings of the court I again quote a +sentence which characterizes the general attitude: “That the crimes were +committed against Jews does not excuse the defendants in any way.” + +Similarly, it seems to me that the efforts of the Prosecution to include +Admiral Dönitz in its construction of the conspiracy by terming him a +fanatical Nazi have failed. He was neither a member of the Party nor was +he ever politically prominent before his appointment as +Commander-in-Chief of the Navy. The assertion of the Prosecution that he +became Commander-in-Chief of the Navy because of his political attitude +lacks all foundation. As a professional officer, to whom every political +activity was forbidden by the Reich Defense Law, he had no reason for +dealing with National Socialism in any way. However, he, too, like +millions of other Germans, recognized the unique success of Hitler’s +leadership in social and economic fields and, of course, also the +liberation from the obligations of Versailles which Hitler had brought +about and which particularly concerned Admiral Dönitz as a soldier. +Therefore, at the time of his appointment as Commander-in-Chief of the +Navy, he was politically in no way active, although loyal to the +National Socialist State. + +This appointment introduced two new elements into his relations with +National Socialism. There was first of all his personal contact with +Adolf Hitler. Like almost everyone else who had personal dealings with +this man, he too was most deeply impressed by him. The respect for the +head of the State and loyalty to the Supreme Commander inherent in the +professional officer were complemented by admiration for the statesman +and strategist. It is difficult fully to appreciate such an attitude in +view of the information which has come to light in the course of this +Trial. I feel neither called upon nor able to judge a personality like +Adolf Hitler. But one thing seems to me certain, namely, that with a +consummate art of camouflage he skillfully concealed the repulsive +traits of his character from those of his collaborators to whom he did +not dare reveal this part of his nature. The Hitler with whom the new +Commander-in-Chief of the Navy became acquainted at that time, and whom +he admired, was therefore an entirely different man from the one which +the world—rightly or wrongly—pictures today. + +The second new element in the relations between Grossadmiral Dönitz and +National Socialism was that in the performance of his military duties he +necessarily came into contact with the political authorities of the +Reich. Whether he needed more men, more ships, or more arms, in the end +he always had to discuss these matters with the political authorities, +and in order to be successful in his demands, he had to make sure that +any political mistrust was eliminated from the very start. This he +deliberately did, and he demanded the same of his subordinates. To him +the Party was not an ideological factor, but rather the actual exponent +of political power. He was linked with it in the common aim to win the +war, and for the achievement of this aim he considered it his ally. But +to obtain the advantages which one expects of an ally, one must be +willing to make certain sacrifices, especially sacrifices in overlooking +faults and in ignoring conflicting issues. + +However, his connection with the Führer and his contact with the Party, +which were concomitants of his position and of his duties as +Commander-in-Chief of the Navy, never led him to participate in anything +for which he could not assume responsibility before his conscience. Some +points of the Prosecution even go to prove this. The Führer demanded +action against shipwrecked crews; Admiral Dönitz rejected it. The Führer +asked for withdrawal from the Geneva Convention; Admiral Dönitz rejected +it. He stubbornly and successfully resisted the Party’s influence upon +the Armed Forces. Thanks to his resistance the National Socialist +Führungsoffiziere did not become political commissars, but were, as +genuine officers, merely advisers to their commander, who retained the +sole responsibility for the leadership of his unit. The transfer of +proceedings against soldiers on political grounds from the military +courts to the People’s Courts, which had been advocated by the Party, +was prevented by Grossadmiral Dönitz until the winter of 1944-45, and a +Führer order to this effect issued at that time was never carried out in +the Navy. Thus he never identified himself with the Party and can +therefore surely not be held responsible for its ideological endeavors +or its excesses, just as in foreign politics a government would not be +ready to assume responsibility for such things if they had been done by +an ally. + +I do not by any means want to give the impression that Admiral Dönitz +was not a National Socialist. On the contrary, I just want to use him as +an example to disprove the theory that every National Socialist as such +must be a criminal. This Tribunal is the sole instance in which +authoritative personalities of the great Allied Powers are dealing +directly and in detail with the last 12 years of the German past. It is, +therefore, the only hope of very many Germans for the removal of a fatal +error which is causing the weaker elements of our nation to become +hypocrites and is thus proving a decisive obstacle on the road to +political recovery. + +And now I should like to deal with the charge that in February 1945 +Admiral Dönitz protracted the inevitable surrender out of political +fanaticism, and I wish to do so for a particular reason. This charge, +which seems hardly to have anything to do with the Indictment before an +International Tribunal, weighs particularly heavily in the eyes of the +German people, for this nation truly knows what destruction and losses +it endured in those last months from February until May 1945. I have +submitted declarations of Darlan, Chamberlain, and Churchill from the +year 1940 in which those statesmen, in a critical hour for their +countries, called for desperate resistance, for the defense of every +village and of every house. Nobody will conclude from this that these +men were fanatical National Socialists. The question of unconditional +surrender is indeed of such colossal import to a nation, that in fact it +is not possible until after the event to judge whether a statesman who +had to face this question did or did not do the right thing. Admiral +Dönitz, however, was not a statesman in February 1945, but the +Commander-in-Chief of the Navy. Should he have asked his subordinates to +lay down their arms at a time when the political authority of the State +still considered military resistance as opportune and necessary? Nobody +will seriously demand that. + +Much more difficult seems to me the question of whether, in view of the +high esteem Hitler had for him, he should not have considered it his +duty to point out clearly to Hitler the hopelessness of prolonged +resistance. + +Personally, I would have affirmed this to be his duty toward his nation, +if Admiral Dönitz himself at that time had considered that surrender was +justified. He did not consider it justified, and he gave his reasons: +Surrender implied a halt of the armies and of the population; the German +Army on the Eastern Front—still numbering more than 2 million men in +February 1945—and the entire civilian population of the German eastern +provinces would thereby have fallen into the hands of the Soviet armies, +and in a bitterly cold winter month, too. Admiral Dönitz, therefore, was +of the opinion, shared by Generaloberst Jodl, that the losses in men +suffered in that way would be far greater than the losses which would +necessarily be caused if the capitulation were postponed until the +warmer season. Only in future years, when more exact data regarding +casualties of the Army and of the civilian population both before and +after the surrender in the East and in the West are available, will it +be possible to view this opinion objectively. But it may already be said +today that such considerations arose entirely from a full sense of +responsibility for the life of German men and women. + +The same sense of responsibility caused him, when he became head of the +State on 1 May 1945, to cease hostilities against the West, but to +protract the surrender in the East for a few days, days in which +hundreds of thousands were able to escape to the West. From the moment +when—to his own complete surprise—he was given a political task, he +calmly and intelligently averted a threatening chaos, prevented +desperate mass action without a leader, and assumed responsibility +before the German people for the gravest action which any statesman can +take at all. + +Thus, to revert to the beginning of the Indictment, he did nothing to +start this war, but he took the decisive steps to end it. + +Since that moment the German nation has learned of many things which it +did not expect, and more than once it has been referred to the +unconditional surrender which the last head of the State carried +through. It is for this Tribunal to decide whether in the future this +nation will be reminded of the binding value of the signature of a man +who is being outlawed as a criminal before the whole world by his +partners in the agreement. + +At the beginning of my speech I mentioned the doubts which any trial of +war criminals is bound to call forth in the mind and heart of any +lawyer. They must weigh upon all who bear any responsibility in such a +trial. I could not more fittingly describe the task of all the +responsible persons than in the words of a British attorney speaking of +the trials before the German Supreme Court in the year 1921. I quote: + + “The war criminals’ trials were demanded by an angry public + rather than by statesmen or the fighting services. Had public + opinion in 1919 had its way, the trials might have presented a + grim spectacle, of which future generations would have been + ashamed. But thanks to the statesmen and the lawyers, a public + yearning for revenge was converted into a real demonstration of + the majesty of right and the power of law.”[38] + +May the verdict of this Tribunal stand in a similar way before the +judgment of history. + +THE PRESIDENT: I call on Dr. Siemers for the Defendant Raeder. + +DR. WALTER SIEMERS (Counsel for Defendant Raeder): Gentlemen of the +Tribunal, in my final speech for the Defendant Grossadmiral Dr. Raeder, +I should like to keep to the order I chose for my document books and for +the whole presentation of my evidence. I think a survey of the whole +case will thus be made easier. + +Raeder, who has just turned 70 years of age, has been exclusively a +soldier, body and soul, ever since the age of 18, that is to say, for +nigh on half a century covering an eventful period. Although he was +never concerned with anything but his duties as a soldier, the +Prosecution has accused him, in this great Trial against National +Socialism, not only as a soldier, namely, as Commander-in-Chief of the +German Navy, but, a singular and decisive point, as a politician, as a +political conspirator, and as a member of the Government, three things +which in truth he never was. + +I am, therefore, faced with the singular task of defending Raeder as a +politician, although it was precisely, as I shall demonstrate, his life +principle as an officer to keep aloof from politics, and to command an +officers’ corps and a Navy likewise committed to remain entirely free +from politics. + +If the Prosecution levels such manifold and grave accusations against +Raeder, this is primarily because it has conceived a notion entirely +foreign to the German Armed Forces, namely the notion of an admiral +being responsible for foreign policy and for the outbreak of a war. + +I shall disprove this conception and show that it was unjustified and +unfounded even in Hitler’s National Socialist State. True, Hitler again +and again placed politics in the forefront of the nation and endeavored +to give the nation a one-track political education. Foreign countries +knew this, and they may well therefore be all the more surprised by the +fact that Hitler refrained from such political shaping in one single +instance. Every administration, every organization, and every police +institution was directed by Hitler on political principles, with the +single exception of the Armed Forces. The Armed Forces, and the Navy in +particular, remained for a long time and far into the war absolutely +unpolitical. And not only did Hitler give Raeder an assurance to this +effect, but he had also given the same assurance to Hindenburg as Reich +President. This explains the fact, which has also been made clear in +this Trial, that up to 1944 no officer could be a member of the Party, +and if he was, then his membership was suspended. + +After these preliminary reflections it will be understood why Raeder, as +his interrogation showed, was disconcerted and amazed at these +accusations which amount to a political charge. A man who is nothing but +a soldier cannot understand why he should suddenly and without any +relation to his military duties be made responsible for things which at +no time came within the compass of his activity. + +I shall naturally also discuss the military accusations, with the +exception of submarine warfare, which, for the sake of uniformity, has +already been dealt with by Dr. Kranzbühler on behalf of Raeder, too. + +It will be seen from other military accusations, as for instance in the +cases of Norway and Greece, that again and again there arises this +discrepancy between the political and the military aspects: Raeder acted +as Commander-in-Chief on the basis of military considerations, whereas +the Prosecution now calls him to account on the basis of political +considerations, by evaluating the military actions as political ones. + +The first instance of this discrepancy already lies in the accusations +raised against Raeder with regard to the period before 1933, that is, +before National Socialism. In connection with these accusations it must +not be overlooked that Hitler, the head of the alleged conspiracy for +the waging of wars of aggression, did not rule Germany at that time, and +yet already at that time there is supposed to have existed a common +conspiracy between Hitler and a part of the defendants. + +This is all the more surprising because Raeder, as a naval officer and +after 1928 as Chief of the Naval High Command, at that time had nothing, +absolutely nothing at all, to do with National Socialism, and did not +even know Hitler and his co-workers in the Party. The accusations +concerning the violations of the Versailles Treaty are included by the +Prosecution in the conspiracy, although the violations did not take +place under Hitler’s leadership, but under the leadership or with the +approval of the democratic governments in Germany at the time. This +shows that the Prosecution does not only want to attack National +Socialism through this Trial, as has been emphasized again and again +during the war and after the collapse, but that the Indictment extends +its scope to large circles in Germany which had nothing to do with +National Socialism, some of whom were even direct enemies of National +Socialism. + +(1) For this very reason it seemed to me extremely important to clear up +the question of the violation of the Treaty of Versailles in the course +of the presentation of evidence in the Raeder case. I have endeavored to +do so with the approval of the Tribunal, and I am firmly convinced that +I have succeeded. I need not discuss each of the violations, which have +been treated in detail and which the Prosecution has produced in +Document C-32. It should be sufficient if I refer to the extensive +evidence as well as to the following facts: + +Every single point was either a mere trifle or else a military +measure—such as for example the antiaircraft batteries—based +exclusively on the notion of defense. Raeder has plainly admitted that +treaty infractions did occur, but the trivial nature of the infractions +showed that these measures could not possibly have been connected with +an intention to wage wars of aggression. + +Moreover, I need only point out that from the legal point of view a +treaty violation cannot _ipso jure_ be a crime. Certainly the violation +of a treaty between nations is no more permissible than the violation of +a contract between private firms in commercial law. Such a violation is, +however, not a punishable action, much less a crime. Even on the basis +of the argument of the Prosecution, such action would be punishable only +if the violation had been undertaken with criminal intent, that is, if +it had been aimed at a war of aggression in contradiction to the Kellogg +Pact. However, not even the Prosecution will be able to maintain this, +and it has already indirectly intimated as much by refraining from +taking up these points during the cross-examination of witnesses. + +(2) The position is somewhat different with regard to a charge which the +Prosecution discussed in detail only during cross-examination, namely, +the charge concerning the participation of the German Navy in U-boat +constructions in Holland; in this connection the Prosecution has relied +upon Document C-156, the book by Kapitän zur See Schüssler entitled, +_Der Kampf der Marine gegen Versailles_, as well as on statements +contained in the notes of the naval historian, Admiral Assmann, found in +Document D-854. + +These documents prove that the German Navy had a share in a U-boat +designing office in Holland, the firm N. V. Ingenieurskantoor voor +Scheepsbouw. This participation occurred during the period before the +Navy was under Raeder’s command. The Tribunal will recall that Raeder +did not become Chief of the Naval Command until 1 October 1928, whereas +participation in the designing office in Holland dates back to 1923 and +the following years. + +May I emphasize, however, that in not a single instance was a U-boat +built for the German Navy, and that consequently no U-boats were +obtained or put into commission by the German Navy. In this connection I +refer to the Versailles Treaty, Exhibit Number Raeder-1; Article 188 _et +sequentes_ of the Treaty of Versailles contain the terms with regard to +the Navy. According to Article 188, Germany was bound to deliver her +U-boats to the Allied nations or to dismantle them. This obligation +Germany fulfilled completely. Moreover, Article 191 stipulates the +following; I quote: “The construction and purchase of all submarine +vessels, even for commercial purposes, is forbidden in Germany.” + +It appears from this clear treaty clause that participation in the Dutch +firm was not a violation of the Treaty of Versailles. According to +Article 191, Germany was only forbidden to construct or purchase +U-boats, moreover, strictly speaking, only in Germany. + +As a matter of fact, no U-boat was built in Germany in violation of the +Treaty, and no U-boat was built for Germany abroad either. Participation +in a foreign designing office was not forbidden, nor was this the +purpose of the Treaty of Versailles. The point was merely that Germany +should not create a U-boat force for herself. The Navy, however, was +permitted to participate in a designing office so as to keep abreast of +modern submarine construction, to gather information for the future, and +to lay the foundation for an eventual construction of submarines, when +permitted, by training technical experts (See Exhibit Number Raeder-2, +Lohmann Affidavit). The afore-mentioned documents, submitted by the +Prosecution, prove that the submarines designed by the Dutch firm and +built abroad were put into service abroad, namely by Turkey and Finland. + +Even if one were to take the view that designing work also was +prohibited, then what was said under Figure (1) also applies. The +designing was limited to only a few submarines, so that this small +number in itself proves that there cannot have been any intention of +waging wars of aggression. + +(3) In case the High Tribunal should be unable to follow this train of +thought as a sole argument, I may point out in addition that the lack of +an aggressive intention is also evident from the fact that the trivial +violations of the treaty were in a certain way compensated. I refer to +the second affidavit of Admiral Lohmann, Exhibit Number Raeder-8, which +shows that according to the Treaty of Versailles Germany was allowed to +build 8 armored ships, whereas in fact she only built 3; it shows also +that instead of 8 cruisers only 6 were built up to 1935, and that +instead of 32 destroyers or torpedo boats, only 12 destroyers and no +torpedo boats were built. In fact, with regard to the really important +weapons, and especially those which may be considered as offensive +weapons, the Navy kept far below the maximum permitted by the Treaty of +Versailles, and this indeed to such an extent that by comparison the +trivial violations in naval matters hardly count. + +(4) According to the Weimar Constitution of 11 August 1919, Articles 47 +and 50 (Exhibit Number Raeder-3), the President of the Reich had supreme +command of all the Armed Forces. In order to be valid, the decrees of +the Reich President required the countersignature of the Reich +Chancellor or the Reich ministers concerned, in this case, the Minister +of Defense. I quote: “Responsibility is assumed through the +countersignature.” Thus, from the point of view of constitutional law it +is absolutely clear that the responsibility rests with the Minister of +Defense or the Reich Government and the President of the Reich. It is, +of course, true that before 1928, that is, before Raeder became the +responsible Chief of the Naval Command, the Navy took a number of +measures without the knowledge of the Reich Cabinet. But the evidence +which I presented, especially the statement of the former Reich Minister +Severing, shows that, contrary to the statements of the Prosecution, no +secret measures were taken after Raeder became Chief of the Naval High +Command. Severing has confirmed that the Müller-Stresemann-Severing +Cabinet, in a Cabinet meeting of 18 October 1928, obtained a clear +picture of the secret measures of the Armed Forces by interrogating +Raeder as Chief of the Naval High Command and Heye as Chief of the Army +Command. + +Both Raeder and Heye, after they had given an explanation, were obliged +and directed by the Cabinet, in conformity with the afore-mentioned +paragraphs of the Reich Constitution, to take no future measures without +the knowledge of the Minister of Defense or the Cabinet. At the same +time the Cabinet established that the secret measures taken before +Raeder’s time were only trifling matters, and expressly assumed +responsibility for them. If the Cabinet, in conformity with the +Constitution, assumed the responsibility, this amounted to a legally and +constitutionally effective procedure which exonerated Raeder as Chief of +the Naval High Command and relieved him of responsibility. It appears, +therefore, to be inadmissible that the defendant, who no longer bears +the responsibility, should be made responsible for actions for which the +Cabinet assumed responsibility. + +The attitude of the Cabinet in the Cabinet meeting of 18 October 1928 +further shows that none of these actions can have had as their basis any +criminal intent to wage a war of aggression, for even the Prosecution +will not desire to assert that men like Stresemann, Müller, and Severing +intended to wage wars of aggression, but instead will have to believe +Severing when he says that Stresemann, Müller, and he himself assumed +responsibility for these violations only because they were based purely +on conceptions of defense. One will also have to believe Severing’s +words that such conceptions of defense were justified, since in the +twenties the danger that Germany might be attacked, for instance by +Poland, was quite real, and she would then not have been in a position +to defend herself with the small Armed Forces allowed her by the +Versailles Treaty. This danger was particularly evident in connection +with Polish border incidents in East Prussia and Silesia and during the +occupation of Vilna, and it even increased when all attempts of +Stresemann and Müller failed to achieve adherence to the promise to +disarm which the other powers had given in the Versailles Treaty. + +How difficult Germany’s position was and how justified measures of +defense were, Justice Jackson himself admitted in his opening speech, +when he said, I quote: + + “It is quite possible that Germany in the twenties and thirties + was confronted with desperately difficult tasks, tasks which + would have justified the boldest measures, but not war.” + +I shall not even go as far as Mr. Justice Jackson, but I believe that +these measures taken by the Navy are certainly covered by his own +concept of “boldest measures.” + +The British prosecutor, Mr. Elwyn Jones, attempted during the +cross-examination of Severing to prove that Raeder did not observe the +obligations imposed on him in the Cabinet meeting of 18 October 1928, +because Severing, according to his testimony, was not informed of the +construction abroad of the small submarines for Turkey and Finland. In +this connection, two things must be considered: + +a. During his testimony Severing did not remember the details, but only +the fundamental and decisive questions; with regard to the details, he +naturally relied on the competent minister, in this case, the Reich +Defense Minister. + +b. According to Severing’s testimony it was an exception that the Chief +of the Naval High Command appeared before the entire Cabinet on 18 +October 1928. Raeder as Chief of the Naval High Command was not obliged +to inform all the members of the Cabinet, but was, in accordance with +the Constitution, merely obliged to inform the Reich Defense Minister, +and that Raeder did. What the Reich Defense Minister then for his part +submitted to the other members of the Cabinet and to the Reichstag was +not only beyond Raeder’s knowledge, it was also outside Raeder’s +responsibility, and solely within that of the Reich Defense Minister and +the Cabinet. + +In conclusion may I point out the following: If, despite all this, the +Prosecution wishes to look upon these violations of the Treaty of +Versailles on the part of the Navy as evidence of an intention to wage a +war of aggression, then the Social Democrat or Democrat governments of +that time bear the responsibility. Thereby the Indictment on this point +collapses, for to take the governments of that time to task for the +intention of waging wars of aggression would lead the Prosecution on +this point to an _ad absurdum_. + +(5) The treaty violations during the period from 1933 until the +Anglo-German Naval Agreement of 1935 show the same factual and juridical +picture. During these 2 years no important expansion of naval armament +took place either. The only disputable accusation made by the +Prosecution in this respect is contained in Document D-855, which was +submitted during cross-examination. This is the report of +Flottenintendant Thiele. According to this it was decided in March 1935, +that is, a few months before the naval agreement, to prepare plans for +the _Scharnhorst_ and the _Gneisenau_ with a displacement of 27,000 +tons, although the maximum of 10,000 tons fixed by the Treaty of +Versailles was still formally in force at that time for another 3 +months, in contrast to a maximum displacement of 35,000 tons provided +for in the Naval Agreement of 1935. + +Here it should be taken into consideration that in March 1935 Germany +could already count on the speedy conclusion of an Anglo-German +agreement, whereas the period between the planning and the completion of +a battleship is a much longer one, which cannot be counted in months, +but only in years. As a matter of fact, the _Scharnhorst_ and +_Gneisenau_ were only commissioned in 1938 and 1939, 3 and 4 years +respectively after the naval pact (see Exhibit Number Raeder-2, Lohmann +Affidavit). + +The other matters submitted by the Prosecution are again trifles; for +instance, the selection (not the construction, as the Prosecution says) +of four or five merchantmen (see C-166), or the construction of 5 +E-boats of 40 tons each (see C-151), which for technical reasons were +built in place of 12 torpedo boats of 200 tons each. The Prosecution +cannot in all seriousness turn these facts into grave accusations, +especially as the afore-mentioned deviations from the Versailles Treaty +were known to foreign technical specialists or—as the witness +Schulte-Mönting correctly put it—were an “open secret.” + +(6) And now I come to the decisive juridical aspect of all developments +up to the summer of 1935. In the field of international law the same +principle applies as in the field of internal commercial law: Breaches +of agreement are considered adjusted and settled with the signing of a +new agreement. In the present case the Anglo-German Naval Treaty of 18 +June 1935—Exhibit Number Raeder-11—represents the new agreement. This +naval agreement deviates completely from the Versailles Treaty both with +regard to high-tonnage vessels and with regard to U-boats. It is only on +the basis of what is permitted Germany by this new agreement that the +insignificance of earlier violations of the Versailles Treaty, not at +the time covered by existing agreements, becomes apparent. + +10,000-ton cruisers were replaced by 35,000-ton battleships, and the ban +on the construction of U-boats was replaced by the acknowledgement of +equal rights with regard to U-boat tonnage. Germany’s demands were not +unreasonable; on the contrary, in the document mentioned, His Majesty’s +Government in the United Kingdom explicitly confirmed the German +proposal to be “... an exceedingly important contribution to future +limitation of naval armaments.” + +This agreement between Britain and Germany concluded the debate on the +Versailles Treaty both factually and juridically, as far as the Navy is +concerned. This naval agreement was generally welcomed in Britain and +Germany at that time, and it was supplemented by a new agreement on 17 +June 1937 (see Exhibit Number Raeder-14). As proof of the fact that the +Navy violated the naval agreement, too, with aggressive intentions, the +Prosecution has raised two charges: + +(1) In the Agreement of 1937 both contracting governments were bound to +a mutual exchange of information, which was to take place annually, +within the first 4 months of every calendar year, and was to contain +details of the building program. According to Document C-23, the Navy +violated this obligation insofar as it gave lower figures for the +displacement and the draught of the battleships _Bismarck_ and _Tirpitz_ +which were being built at the beginning of 1938, namely, as 35,000 tons +instead of 41,700 tons. That this violation of the treaty did occur is +openly admitted by Raeder, but again it is not such a serious violation +as the Prosecution contends, that is, it is not a violation which shows +proof of criminal intent. That is clear from the detailed evidence I +have presented and from the testimonies of witnesses which I need not +repeat here; it will be sufficient if I refer to the absolutely +convincing expert testimony of the ship-building director, Dr. Süchting, +which I have submitted as Exhibit Number Raeder-15. According to this, +the increase in tonnage demanded by the Navy during the construction +served a purely defensive idea, namely, that of increasing the armor +plating of the battleships and of arranging the bulkheads in such a way +that the battleships would be virtually unsinkable. This defensive idea, +Dr. Süchting emphasizes, actually proved to be correct during the attack +on and sinking of the battleship _Bismarck_. If it was only a question +of a defensive idea, no aggressive intentions can be construed from this +treaty violation. + +With regard to the juridical aspect, it must be added that in the Naval +Agreement of 1937, Articles 24, 25, and 26 conceded to the contracting +governments the right to deviate, under certain circumstances, from the +contracted agreements and especially from the tonnage limitation of +battleships, if any other sea powers should build or acquire larger +battleships. This case, stated in Article 25, had actually arisen, and +so the violation of the agreement consisted in the fact that the Navy, +although now entitled to build larger battleships, neglected to inform +Britain of her desire to make use of that right. It was, therefore, only +a violation of the obligation to exchange information. How meaningless +this measure was is proved by the alteration of the Anglo-German Naval +Agreement by virtue of the London Protocol of 30 June 1938, which I have +submitted as Exhibit Number Raeder-16. + +Already on 31 March 1938, that is, only 6 weeks after the date of +Document C-23, Britain on her part had stated, according to the London +Protocol of 30 June 1938, that she must make use of the afore-mentioned +right granted by Article 25, and therefore proposed that the battleship +tonnage be increased from 35,000 to 45,000. This agreement was then +signed by both countries on 30 June 1938, and thus the violation of the +treaty evident from Document C-23, became illusory. + +(2) The British prosecutor raised a second charge by submitting Document +D-854 during cross-examination. It consists of notes made by Admiral +Assmann for his historical writings; on Sheet 15 of these notes he +writes that Germany abided by the terms of the Anglo-German Naval +Agreement least of all in the sphere of U-boat building and that 55 +U-boats were allowed by the treaty up to 1938, but 118 were actually +completed or begun. These statements by Assmann are actually incorrect, +and in reality Germany strictly followed all the stipulations of the +Anglo-German Naval Agreement with regard to U-boat building. Despite the +assurance of equality of rights Germany by the Naval Agreement of 1935 +voluntarily limited herself to 45 percent; but the right to increase +this percentage at any time by friendly agreement with Britain was +reserved for her. The presentation of evidence has shown (see the +testimony of Raeder and Schulte-Mönting) that in December 1938 +corresponding negotiations took place between the British Admiral Lord +Cunningham and Grossadmiral Raeder, during which His Majesty’s +Government approved the increase to 100 percent. It was not clear at the +time when this evidence was presented, whether this approval had also +been given in writing, as was to be assumed. Meanwhile I have been able +to establish that such a document must have existed; I was able to +gather this from the afore-mentioned Assmann Document D-854 in which on +Page 169, in connection with Page 161, the letter in question dated 18 +January 1939 is mentioned. In conclusion it remains to be said that the +figure of 55 U-boats mentioned by Assmann corresponds to 45 percent, +whereas the figure of 118 U-boats corresponds to 100 percent; +accordingly Assmann, and therefore the Prosecution as well, are wrong. +Actually there was no violation at all of the naval agreement with +regard to U-boats. + + [_A recess was taken._] + +DR. SIEMERS: I now come to the allegation of the Prosecution that +Grossadmiral Raeder took part in a conspiracy to wage wars of +aggression, and in particular supported Hitler and National Socialism +despite his alleged knowledge that Hitler from the beginning had the +intention of waging wars of aggression. + +(1) How did Raeder establish contact with Hitler, and was he able, or +even bound, at that time to realize an intention on the part of Hitler +to wage wars of aggression? + +As I have said, it is a fact that Raeder before 1933 had nothing to do +with National Socialism and knew neither Hitler nor his Party +collaborators; he met Hitler on 2 February 1933, when he and the other +commanders were introduced to Hitler by Baron von Hammerstein. As Chief +of the Naval High Command Raeder had only one superior, Reich President +Von Hindenburg, who, according to the Constitution and the Defense +Law,[39] was the Supreme Commander of the whole Armed Forces. +Hindenburg, as Reich President, had appointed Hitler Reich Chancellor, +and thus a connection was of necessity created between Hitler and the +Armed Forces. There was thus no question of any decision on the part of +Raeder. As Hindenburg’s subordinate, he had as a soldier to submit to +the political decision which Hindenburg had taken as President of the +Reich. The constitutional basis with regard to the Armed Forces was in +no way altered by the fact that Hitler came to power. As Chief of the +Naval High Command Raeder took as little part in this political decision +as he had done on previous occasions when Müller, who was a Social +Democrat, or Brüning, who belonged to the Center Party, became Reich +Chancellors. + +Nor was there any cause for Raeder to resign his post on account of this +internal political decision, for Hitler had explained to him and the +other high officers at the first conference on 2 February 1933, and +particularly also on the occasion of the first naval report in the same +month, that nothing in the Armed Forces would be changed and that the +Armed Forces must remain aloof from politics, as laid down in the +Constitution and the Defense Law. + +The testimony of Raeder and Schulte-Mönting proves that during the naval +report Hitler explained his fundamental ideas in regard to a peaceful +policy, in which connection, in spite of the amicable revision of the +Versailles Treaty to which he aspired, it was essential to come to an +understanding with England by means of a treaty providing for the +development of the Navy within the general limitations of naval +armament. During this conversation Hitler clearly indicated that he did +not want a naval armament race and that the development of the Navy +should take place only in friendly agreement with England. This +principle was absolutely in line with the viewpoint of Raeder and the +Navy, and it was therefore quite out of the question for Raeder to tell +his superior, Hindenburg, that on account of Hitler he could no longer +head the Navy. + +Now the Prosecution maintains that the leading personalities in Germany +at that time already knew Hitler’s true intentions from his book _Mein +Kampf_, and has cited as proof several quotations, partly torn from +their context, from Hitler’s propaganda book of 1924. This argument of +the Prosecution does not seem to hold good, because Hitler wrote this +book as a private individual belonging to an opposition party. In this +Trial it has several times been pointed out that the statements of +foreign private individuals are irrelevant even when these foreigners +are well known, and subsequently—as in Hitler’s case—received a +position in the government. Raeder could assume, as could anyone else, +that as Reich Chancellor Hitler would not uphold all the Party doctrines +which years before he had defended as a member of the opposition, +particularly since the statements of Hitler on military matters +contradicted these former Party ideas. Moreover, the Navy relations with +England were always of foremost importance and in this connection Hitler +himself had said in his book _Mein Kampf_, Page 154: “But for such a +policy there was only one possible partner in Europe: England.” +(Document Book 2, Document Number Raeder-20, Page 119.) + +In rebuttal of the quotations submitted by the Prosecution it must also +be said that they are all taken from the 1933 edition and that, in spite +of great pains, the General Secretary’s office has been unable to +procure an earlier edition, particularly the first edition of 1925 and +1927. It is a known fact that in later years Hitler himself made changes +on many points in numerous places in his book, consequently the +quotations from the 1933 edition cannot be taken as a basis on their +face value. + +Ought Raeder in the following years to have realized that Hitler desired +to abandon the fundamental idea of an understanding with England, and is +it possible to agree with the argument of the Prosecution that Raeder +should have refused further collaboration at some time before 1939? I +believe that this question must be answered in the negative for reasons +which appear quite naturally from various facts which the Prosecution or +the Defense submitted in evidence: + +Hindenburg died on 2 August 1934, and the Prosecution reproaches Raeder +because he thereupon took an oath in which he named the Führer in the +place of the fatherland. (Record of 15 January 1946, Volume V, Page +262.) This point was sufficiently clarified in the presentation of +evidence. Therefore I need only refer to the error which the Prosecution +made in its assertion; the Prosecution itself produced Document D-481 +which shows the oath of allegiance taken by the soldiers of the Armed +Forces on Hitler’s orders. The document is a law signed by Hitler, +Frick, and Blomberg and it shows that it was not Raeder who replaced the +word “Vaterland” by “Hitler,” but that Hitler himself demanded that all +soldiers should take the oath to him as Commander-in-Chief of the Armed +Forces. Before Hitler demanded this oath, which he had cleverly devised +and which proved so fateful in the future, Raeder had neither been +informed nor had his advice been asked on the wording. He was simply +summoned to the Reich Chancellery without knowing the reason. The +question as to what kind of oath is to be taken by a soldier is again a +political one, a question of legislation, upon which Raeder as a soldier +and Commander-in-Chief of the Navy had no influence. + +The Prosecution charges Raeder with having been informed of many +political decisions and with having, as Commander-in-Chief of the Navy, +made strategic plans and preparations on the occasions of such political +measures. The Prosecution referred to the withdrawal from the League of +Nations on 14 October 1933, the occupation of the Rhineland on 7 March +1936, the Austrian Anschluss in March 1938, the incorporation of the +Sudetenland in the autumn of 1938, and the establishment of the +Protectorate of Bohemia and Moravia in March 1939.[40] + +The documents in question are in the main those marked in the footnote, +and I can refer to them jointly in this connection. There is one fact +common to all of these decisions, namely, that Raeder did not +politically take part in any of them. Raeder was never consulted +beforehand and as Commander-in-Chief of the Navy he had no authority to +participate in such decisions. Raeder did nothing more than take note of +these documents and reports, and then issue the orders necessary for +precautionary military measures in case the country became involved in +war. It seems quite incomprehensible that the commander-in-chief of a +branch of the Armed Forces should be reproached for having made +strategic preparations in the event of political complications. I +imagine that it is customary all over the world that an admiral never +takes part in political decisions, while at the same time he is obliged +to make certain precautionary preparations depending upon such political +decisions of the government. This is another example of the discrepancy +I have already mentioned affecting the position of a military commander, +which, although the Prosecution considers it to be a political one, is +in reality purely military. There is hardly any doubt that the military +commands of foreign countries involved in these political decisions or +interested in them were also at the same time taking precautionary +military measures. + +A military commander could not judge whether these political decisions +of Hitler were crimes or even violations of international law, all the +less since he was never summoned to the consultations. Neither the +withdrawal from the League of Nations, as a result of the failure of all +endeavors to induce the other countries to disarm in the spirit of the +Versailles Treaty, nor the occupation of the Sudetenland or the +establishment of the Protectorate of Bohemia and Moravia, can be +regarded as criminal activities, in the sense of the Indictment, of a +disinterested commander-in-chief. They were certainly deviations from +the Versailles Treaty, but even the British Prosecutor, Sir Hartley +Shawcross, declared on 4 December 1945 in this courtroom that “many +objections against Versailles were possibly justified.”[41] And even +Justice Jackson, as quoted above, said that the boldest measures would +have been justified for the purpose of revising this treaty, but not a +war. + +All these measures taken by Germany were in fact carried out without a +war, and therefore come under the heading of measures which Justice +Jackson considers justified, all the more so since they were all +silently condoned by foreign countries, or even agreed upon by treaty, +as for instance in the case of the incorporation of the Sudetenland by +the Munich Agreement of September 1938, or, as in the case of Austria, +by agreement with that country. + +In the cases of Austria and of the establishment of the Protectorate of +Bohemia and Moravia, the Prosecution quite justifiably, looking at these +cases objectively and retrospectively, points out that Hitler employed +extremely dubious and possibly criminal means to achieve his aims; +however, this can have no significance as far as the Commander-in-Chief +of the Navy is concerned, since it has been firmly established that he +was not informed of these activities, much less of the means employed +therein. It has been established in particular that Raeder was neither +informed of the details of the Austrian Anschluss nor of the kind of +conference which ultimately led to an agreement with President Hacha. He +was not told of the discussions with Hacha, nor of the threat of a +bombardment of Prague, which was made in the course of these +discussions; I refer in this connection to the testimony of the +witnesses Raeder and Schulte-Mönting. In the eyes of Raeder, therefore, +these constituted measures permissible under international law, or else +agreements which gave him no cause to interfere or to question Hitler, +quite apart from the fact that as a military commander he had no right +whatsoever to do so. + +Moreover, had military complications arisen, land operations only would +have been involved, as is quite obvious from the location of the +countries concerned. It would have amounted to an impossible situation +if the disinterested Commander-in-Chief of the Navy had seen fit to +concern himself with these things although hardly any naval preparations +were required. In the case of Czechoslovakia, for example, Document +388-PS lays down, as far as the Navy was concerned, only that it was to +participate in possible Army operations by commitment of the Danube +flotilla which for this purpose was placed under the orders of the High +Command of the Army; this flotilla consisted of very small ships, a few +gunboats, if I remember correctly. + +In this connection I also quote Sir Hartley Shawcross when on 4 December +1945 he spoke of the German-Polish Non-Aggression Pact of 1934: “By +entering into it”—Hitler—“persuaded many people that his intentions +were genuinely pacific ...”[42] + +Accordingly, Raeder too had reason to be convinced. It is true that +Raeder belonged to the Secret Cabinet Council created in February 1938. +But it is also true, and has been proved in the meantime, that the +Secret Cabinet Council was just a farce. It is therefore unnecessary to +deal with this point which the Prosecution originally considered so +important. + +The claim of the Prosecution that Raeder was a member of the Government +and a Reich minister has been refuted in the same way. This assertion of +the Prosecution has from the outset been somewhat incomprehensible. +Document 2098-PS, presented by the Prosecution, only states with +absolute clarity that Von Brauchitsch, the Commander-in-Chief of the +Army, and Raeder, the Commander-in-Chief of the Navy, held—I quote—“a +rank equivalent to that of a Reich minister.” This proves that he was +not a minister, although for reasons of etiquette he held a rank equal +to that of a Reich minister, and it follows that this decree of Hitler +did not assign a political task to Raeder, as the Prosecution would like +to have it. + +Moreover, this decree does not even give him the right to participate in +Cabinet sessions at his own will, but only, as Hitler says in the +above-mentioned document, “upon my order.” This simply means that Raeder +might have been called upon by Hitler to participate in a Cabinet +session when technical naval problems were being discussed. In reality +this hypothetical and politically insignificant case never arose. + +Nor can membership in the Reich Defense Council—Document +2194-PS[43]—be considered incriminating. In the first place the council +was concerned, as the text says, only with “preparatory measures for the +defense of the Reich,” that is, neither with political activities nor +with activities connected in any political sense with aggressive war. +Furthermore, according to Document 2018-PS, a later Führer decree of 13 +August 1939, and contrary to the claim of the Prosecution, Raeder never +belonged to the Ministerial Council for the Defense of the Reich set up +at that time, for the simple reason that he was not a minister. Actually +other countries, too, possess institutions like a defense council or +defense committee. I call attention to the fact that already long before +the first World War the British Government had a defense committee which +was of much greater importance[44] than the equivalent institution in +Germany. + +As the final matter in this connection, I wish to point out that the +claim of the Prosecution that Raeder was a Party member has also proved +untenable. It is true that Raeder received the gold insignia of honor +from Hitler; but this was only a decoration; it could not mean anything +else, because a soldier could not be a member of the Party. That is +clear beyond all doubt from Paragraph 36 of the Reich Defense Law, which +forbids soldiers to engage in politics and to be members of a political +organization.[45] + +I also refer to the evidence, which proved amply that Raeder never had +connections with the Party, that indeed he more than once had arguments +with Party circles and that he was unpopular with typical National +Socialists because of his political and particularly his religious +attitude. Goebbels, for instance, positively detested him, and this was +not surprising, because on the one hand he always prevented the Party +from gaining any sort of influence on the officers’ corps of the Navy, +while on the other, in contrast to the Party, he supported the Church to +the greatest extent, and saw to it that the morale of the Navy was +founded on a Christian basis. I refer in this connection to the typical +National Socialist phrase of Bormann: + +“National Socialist and Christian concepts are incompatible.”[46] In the +same document Bormann, as he so often did, expressed views devoid of all +civilized standards and attacked Christianity so strongly, and so +violently advocated the elimination of all Christian ideas, that this +attitude by the Party is sufficient proof that Raeder, as a devout +Christian, could never have entertained relations with the Party.[47] + +I have already stated that in 1933 Hitler said that it would be one of +the fundamentals of his policy to make Germany sound and strong by +peaceful means, and that for such peaceful development it was absolutely +necessary to acknowledge British hegemony and come to an agreement with +Britain about the size of the German fleet—if possible, even to come to +an alliance. These ideas coincided with Raeder’s fundamental attitude, +which he explained in detail during his examination here. As far as my +defense is concerned, it may remain an open question whether and when +Hitler abandoned that basic thought. In any case, Hitler always +emphasized this basic thought to Raeder and actually supported it with +deeds; this ever-recurring thought can be traced through all the years +up to the outbreak of war, and it was in the pursuit of this basic +principle that the Anglo-German Naval Agreement was concluded in 1935 +and the second Anglo-German Naval Agreement in 1937, that an agreement +on submarines was reached with Lord Cunningham in 1938, and that the +London protocol on the subject of battleships was signed on 30 June +1938. Thus, throughout the years of the reconstruction of the German +Navy the same idea was always predominant, namely, of achieving +agreement with Britain, of acknowledging Britain’s supremacy and of +avoiding any difference which might lead to a break with Britain. + +Looking back now in cognizance of all the documents and all the facts +proved during this Trial, Hitler may be assumed at some time, probably +in 1938, to have become unfaithful to his own principles and thereby +guilty of bringing about the tragic fate of Germany. However, in judging +the accusations made against Raeder, the decisive issue is not what must +subsequently, in the light of all known facts, be acknowledged as +objectively true; the real issue is only whether Raeder realized, or was +even able to realize, Hitler’s deviation from his own ideas, and the +answer to that is “no.” Raeder could not have guessed, much less have +known, that Hitler at some time became untrue to his own political ideas +which he had repeatedly stressed and demonstrated, and thus guilty of +kindling the frightful conflagration of World War II. + +Raeder could not have suspected or known that during the period +immediately preceding the war Hitler spoke to him, too, in words which +were at variance with his thoughts and also different from his actions. +As far as the Navy in particular was concerned, the relatively slow +rebuilding of the German fleet showed that Hitler proposed to remain +faithful to the ideas which I described. There was no indication at all +of a change of mind on Hitler’s part in this field, for a change of mind +would surely have resulted in a naval rebuilding program bigger than the +one which Hitler actually carried out. At the very least he would then +have made full use of possibilities offered by the Anglo-German Naval +Agreement. According to the Naval Agreement, the German fleet was +allowed a total tonnage of 420,595 tons,[48] yet actually this maximum +was never utilized. Even with regard to battleships, Germany remained +short of the Naval Agreement, with the result that the battleships +_Bismarck_ and _Tirpitz_ were not available in the first year of the +war, and thus could not take part in the occupation of Norway; the +_Bismarck_ was completed only in August 1940, and the _Tirpitz_ in 1941. + +According to the Naval Agreement, Germany was allowed the same tonnage +in submarines as England. In reality, however, U-boat construction was +so slow that at the beginning of the war in 1939, as the evidence has +proved, Germany had only the small number of 26 U-boats available for +Atlantic service. And further, according to Document L-79, known as the +“Little Schmundt,” it was laid down as late as the end of May 1939 +that—I quote—“no change will be made in the ship-building program.” + +All this must have firmly convinced the Commander-in-Chief of the Navy +from his personal point of view and his sphere of work that Hitler +wanted to stand by his much-stressed basic principle of avoiding war. + +Raeder’s firm conviction in this respect—this seems to be an important +consideration—was to a large extent confirmed by the attitude of +foreign countries. Winston Churchill, in his book _Great +Contemporaries_, wrote in 1935: + + “It is not possible to form a just judgment of a public figure + who has attained the enormous dimensions of Adolf Hitler, until + his lifework as a whole is before us ... We cannot tell whether + Hitler will be the man who will once again let loose upon the + world another war in which civilization will irretrievably + succumb, or whether he will go down in history as the man who + has restored honor and peace of mind to the great Germanic + nation, and brought it back serene, helpful, and strong to the + forefront of the European family circle.” + +One year later, at the Olympic Games in Berlin in 1936, the +representatives of the foreign countries appeared in a body and greeted +Hitler in a manner which, in its approval bordering on enthusiasm, +appeared incomprehensible to many skeptically inclined Germans. +Subsequently, the foremost politicians and members of various +governments visited Hitler and reached complete understanding with him, +and finally, in the autumn of 1938, agreement was again reached under +Chamberlain and Lord Halifax; an agreement which strengthened Hitler +immeasurably, and by which he sought to prove to the Germans how +expedient all his actions had been, since they were thus approved by +foreign countries. The joint declaration, which Chamberlain and Hitler +issued in Munich on 30 September 1938, can never be overestimated in its +importance. I would, therefore, like to quote the first two decisive +sentences from it: + + “We have had a further discussion today, and are agreed that the + question of Anglo-German relations is of primary importance for + both countries and for Europe. + + “We regard the agreement signed last night and the Anglo-German + Naval Treaty as symbolic of the desire of our two nations never + again to wage war against each other.” + +I think that these references are sufficient. Now, can one demand of a +German admiral, who has never been a politician, but always only a +soldier, that in judging Hitler he should have looked farther ahead than +the great British statesmen, Chamberlain and Churchill? Surely the very +question indicates that the answer is “no.” + +The Prosecution can seriously confront these numerous aspects only with +a few documents which might indicate Raeder’s knowledge of Hitler’s +aggressive plans. The Prosecution has indeed presented innumerable +documents of which Raeder or the Naval Operations Staff or the High +Command of the Navy were stated to have received copies, but in a +considerable number of instances the Prosecution could not say anything +beyond the fact that Raeder received a copy of the documents; for the +most part no real connection existed, nor was it alleged by the +Prosecution. Naturally, it is not surprising that for the sake of +uniformity military documents went to all branches of the Armed Forces, +even if in certain cases one branch of the Armed Forces was not at all, +or only vaguely, concerned with them. Of all these documents which have +been submitted in the case of Raeder, only the four documents which, +because of their importance, the Prosecution described as key documents, +could be really incriminating. These are Hitler’s four speeches to the +Commanders-in-Chief of 5 November 1937, 23 May 1939, 22 August 1939, and +23 November 1939.[49] + +The Prosecution claims that these speeches prove participation in the +conspiracy, and that it is clearly evident from them that Hitler wanted +to wage wars of aggression. I would therefore like to deal with these +documents individually and in detail, and in doing so, show why they +cannot modify the general picture I have presented. + +Undoubtedly these key documents are of the utmost importance for the +subsequent historical findings on what trains of thought motivated +Hitler; they are important because they are expressions of Hitler’s +opinion and because, in spite of the tremendous amount of captured +documentary material, there are hardly any written notes of Hitler. One +is tempted, of course, to accept the conclusion that the contents of +these documents must be true because they are statements made before a +small circle, where Hitler would naturally express himself more openly +than in his public speeches. Even though I by no means fail to recognize +their value, I nevertheless believe that the Prosecution overestimates +the importance of these four documents by far. Certainly, they are to +some extent key documents, since they provide the key to an +understanding of Hitler’s mind and methods, but they are not a key to +the real intentions of Hitler, and more particularly they do not provide +a scale for any conclusions which those who listened to the speeches +must, in the opinion of the Prosecution, needs draw from them. + +Therefore, in order fully to explain the value of the documents, I would +like first of all to mention several general points which apply +generally to each of these four documents and limit their evidential +value, which the Prosecution has overestimated. None of these speeches +was taken down in shorthand, so that the actual text of the speeches is +not available. Accordingly, in the record of the address of 5 November +1937, Hossbach correctly chose the indirect form of speech, and +Generaladmiral Böhm in his record of the speech of 22 August 1939[50] +did the same. Surprisingly and not quite correctly, Schmundt chose the +direct form of speech in his record of 23 May 1939, although it was not +a verbatim record; however, he was at least careful to state at the +beginning that Hitler’s words were being reproduced “in essence.” + +The feeblest documents, that is to say, the two versions of the speech +of 22 August 1939 which the Prosecution has submitted, are written in +the direct form of speech, and the authors of these documents, whose +names are unknown, have not even deemed it necessary to add some sort of +note as Schmundt did. However this may be, in considering the documents +it must be kept in mind that they were not reproduced word by word and +that therefore the reliability of the reproduction depends on the manner +of work and attitude of the author of the document, especially on +whether and to what extent he made notes during the speech, and when he +prepared his record. In this connection it is important to note that, as +Document 386-PS shows, Adjutant Hossbach wrote the record a full 5 days +later, namely on 10 November, though the speech itself had already been +made on 5 November. In the case of Schmundt, the date of the record is +missing altogether, and in the two Prosecution documents on the speech +of 22 August 1939 there is also no date. The last two documents also +lack any signature, so that in this case it is not even possible to say +who bears the responsibility for the record. The same applies to the +document on the speech of 23 November 1939. All these formal +deficiencies allow considerable doubt concerning evidential value and +reliability of the documents to be entertained. + +It is different in the case of the Böhm document, who in his affidavit +certifies that he wrote down Hitler’s speech as it was being made, that +he noted down the exact text of particularly important passages, and +that he edited the final draft, submitted here, on the same evening. +Since in all these documents the true text is not available, it is +obvious how important it is if one can at least establish that the +record was made simultaneously with the speech, or at least on the same +day and not, as in the case of Hossbach, 5 days later. Even with the +best of memories the best adjutant, who has to handle many new matters +every day, cannot possibly after 5 days give an absolutely reliable +reproduction of a speech. + +The second point is just as important, namely, that unlike other +military documents these are not official documents with a distribution +list, that is, they are not documents which were subsequently sent to +those concerned. That the documents were not sent to Raeder was +established in the evidence by him and by the witness Schulte-Mönting, +apart from the fact that it is already apparent from the lack of a +distribution list on the document. This point, in particular, seems to +me of great importance. Listening to a speech once—and it will be +recalled that Hitler spoke extremely quickly—does not induce the +listener to draw conclusions in a way which the reading of the record +might, since the record allows for a check and recheck of the contents +of the speech. We who have come to know these speeches in the +proceedings in their written form and have again and again checked their +wording, naturally invest certain words and phrases with more importance +than we would have done if we had heard them as part of a quickly +delivered address. In addition, all of us are readily inclined to lend +more importance to the various phrases, because from our present +standpoint and in view of our more extensive knowledge we can now survey +everything much more easily; for we have not only one speech on which to +base our opinions, but all of them and in addition all the many other +documents showing the historical development. In discussing these +documents it must always be borne in mind that listeners are inclined to +react to the spoken word quite differently, and that often, even after +only a few hours, the reports of various listeners differ from one +another. + +The Prosecution considers these speeches of Hitler to be the basis of +the conspiracy, and says that on these occasions Hitler consulted with +the commanders, reached a certain decision, and concluded a certain plan +of conspiracy with them. The Prosecution is bound to maintain this, +because one can only speak of a conspiracy when something is being +planned in common. In reality, the assertion of the Prosecution that an +influential group of Nazis assembled to examine the situation and make +decisions is incorrect; the occasion took the form of an address by +Hitler alone, and no discussion and no consultation took place. Nor was +any decision reached, either; Hitler just spoke quite generally about—I +quote—“possibilities of development.”[51] If one can speak of decisions +at all, it was a decision solely on the part of Hitler. All this +contradicts the existence of a real conspiracy. Altogether I have the +impression that, in its conception of a conspiracy to wage wars of +aggression, the Prosecution has conceived an entirely false picture of +the real distribution of power within the National Socialist State. In +my opinion the Prosecution fails to recognize the characteristics of a +dictatorship, and indeed it may be very difficult to understand the +immeasurable dictatorial power of Hitler if one has not personally lived +through all of those 12 years in Germany, in particular the growth of +Hitler’s power from its first beginnings until it finally developed into +a dictatorship wielding the most cruel and horrible terror. A dictator +like Hitler, who moreover quite obviously exercised immense powers of +suggestion and fascination, is not a president of a parliamentary +government. I have the impression that in judging the situation as a +whole the Prosecution has never completely relinquished the idea of a +parliamentary government nor taken the uncompromising ways of a dictator +into account. + +The idea of a conspiracy between him and the members of the Cabinet or +between him and the commanders was quite contrary to Hitler’s own +nature, as the testimony of several witnesses showed in the course of +the Trial. This was proved with particular emphasis by the testimony of +the Swedish industrialist, Dahlerus, who by reason of his excellent and +extensive connections both with Britain and Germany was in the course of +time able to obtain an objective picture of both countries, and who +during his negotiations with Chamberlain and Halifax on the one hand, +and Hitler and Göring on the other, was best able to recognize the +difference between the parliamentary British Government and the German +dictatorship of Hitler. The account of Dahlerus proves convincingly that +the difference was irreconcilable. After he had spoken with Chamberlain +and Halifax, a discussion with the Cabinet naturally took place before a +final decision was taken. On the other hand, when in the night of 26 to +27 August 1939[52] Dahlerus had a discussion of decisive importance with +Hitler, at which only Göring was present, Hitler at once made six +propositions, without saying a word to any of the Cabinet members or any +of the military commanders, without even consulting Göring who sat by +silently; proposals, moreover, which did not exactly tally with what he +himself had told Sir Nevile Henderson a short time before. A stronger +argument against a conspiracy with commanders or members of the Cabinet +can hardly exist, unless it be the equally important fact which the +witness Dahlerus added, namely, that during the entire 2½ hours Göring +did not dare say a single word, and that it was humiliating to see the +degree of servility which Hitler demanded even of Göring, his closest +associate.[53] + +All these Hitler speeches are full of contradictions. Such +contradictions naturally impair clarity of thought, and they rob +individual ideas of their importance. When reading the documents in +their entirety, the number of contradictions becomes evident, as the +witness Admiral Schulte-Mönting correctly pointed out during his +examination and cross-examination. It is just because of such +contradictions and often illogical thinking that the evidential value of +the documents is diminished. Naturally it is difficult for a military +adjutant like Hossbach or Schmundt to record unclear and contradictory +trains of thought; and it is also easy to understand that a military +adjutant will be inclined to introduce as clear a line of thought as +possible, and will in consequence be misled into applying to certain +ideas which have become clear to him more stress than they were actually +given in the speech itself. To this can be added a remark of Raeder, who +not only points to the contradictions, but especially to Hitler’s +overactive imagination, and very appropriately calls him a “master of +bluff.”[54] + +Moreover, in every speech of that type Hitler followed a very definite +tendency. He had a definite purpose in view, namely, to bring about the +desired impression on all or some of his hearers, either by intentional +exaggeration or by making things appear deliberately harmless. While he +spoke, Hitler followed the intuition of the moment; as Schulte-Mönting +termed it, he wandered from his notes. He thought aloud and wished to +carry his hearers away, but he did not want to be taken at his word.[55] +Everyone will agree with me that such practices and such purposefully +designed speeches give no clear indication at all of Hitler’s true views +at the time. In addition, there is this to be said about all these +documents in general: + +Following his address of 23 May 1939—known as the “Little +Schmundt”—Raeder had an interview with Hitler alone in which he called +Hitler’s attention to contradictions in his address and also to the +contradiction arising out of Hitler’s assurance to Raeder personally +that he, Hitler, would under all circumstances settle the case of Poland +equally peacefully. Hitler thereupon put Raeder’s mind completely at +rest and told him that he had a firm hold on matters, politically. This +was stated by the witness Schulte-Mönting[56] who added that Hitler +allayed Raeder’s misgivings about the contradiction between the speech +of 23 May 1939 and his other statements by telling him that for him, +Hitler, there were three grades of keeping matters secret: Firstly, by +private conversation with one partner; secondly, the thoughts he kept to +himself; and thirdly, some ideas which he himself did not fully think +out. + +I believe this way of thinking as explained by Hitler himself +illustrates most strikingly how little reliance could ultimately be +placed on statements which he made before a small or a large group of +people. It seems to me quite plausible, therefore, that Raeder based his +deliberations neither on Hitler’s general speeches nor on the address +before the commanders which was discussed here, but went solely by what +Hitler told him in private discussion. In this respect, the statements +of Sehulte-Mönting, Böhm, and Albrecht[57] all prove that as late as +1939 Hitler was still, in private conversation, repeatedly giving Raeder +the explicit assurance that there would be no war; and he did this +whenever for some reason or other Raeder was particularly anxious and +drew Hitler’s attention to the dangers ahead. + +In conclusion, therefore, I believe it may be said that the so-called +key documents are extremely interesting in assessing Hitler from a +psychological point of view, but that their evidential value as regards +Hitler’s real intentions is very limited and slight. One cannot reproach +Raeder for not letting himself be guided by the tendentious and +deliberate speeches which Hitler made before his commanders on the spur +of the moment, and preferring to rely on assurances which Hitler himself +gave him and on the fact that until the summer of 1939, until the very +outbreak of the war, these assurances were in perfect accord with the +facts and with Hitler’s actions, that is, with the four naval agreements +and the Munich Pact. + +It is understandable that Raeder did not permit this basic attitude to +be shaken by these speeches to the commanders-in-chief, though they were +undoubtedly of a questionable nature, but that he held steadfastly to +his belief that Hitler would not deceive him. The fact that we now +subsequently realize that Hitler did after all deceive Raeder in his +private conversations with him, and also by his special second and third +grade of secrecy, does not indicate any guilt on Raeder’s part, but +solely on Hitler’s. The vast amount of material in this connection does +not indicate that in 1938 and 1939 Raeder planned a war of aggression in +violation of international law, but reveals only that Hitler planned a +war of aggression in violation of international law. + +This completes my general treatment of the key documents and I now ask +the Tribunal’s permission to add a few points on each individual +document, since the Prosecution again and again stressed these documents +as the basis for the charge of conspiracy. + +Hossbach Document, discussion of 5 November 1937 in the Reich +Chancellery: + +The crucial passages of this document are obvious, and the Prosecution +has cited them often enough. But in dealing with this document it should +be taken into consideration that both Göring and Raeder stated here that +Hitler announced in advance his intention of following a certain trend +or purpose in his speech. Hitler was dissatisfied with the measures +taken by Field Marshal Von Blomberg, and especially by Generaloberst Von +Fritsch, the Commander-in-Chief of the Army, and felt that progress in +the rearmament of the Army was too slow. Hitler therefore intentionally +exaggerated, and since this was known only to Göring and Raeder, it is +natural that the impression which the speech made on Neurath, who had no +idea of this intention, was entirely different and considerably +alarming. + +It is interesting to note that apparently Hitler did not fully get what +he wanted, because the last two paragraphs of the document indicate that +to some extent Blomberg and Fritsch saw through Hitler’s scheme, and +that his exaggerations did not deceive them. Though Hitler did not +permit discussion on such occasions, Blomberg and Fritsch intervened in +this instance and pointed to the need for preventing Britain and France +from becoming Germany’s adversaries. Blomberg explained the reasons for +his protest, and in the penultimate paragraph of the document Fritsch +showed unmistakably that he was skeptical of Hitler’s words by remarking +that under such circumstances he would not be able to take his planned +vacation abroad scheduled to begin on 10 November. It is also +significant that Hitler thereupon came round and, in contrast to his +earlier statements, said that he was convinced of Britain’s +nonparticipation, and that consequently he did not believe in military +action against Germany on the part of France either. + +That Hitler’s ideas in this document are quite impossible is also +evident from the fact that he based his statements on a truly fantastic +notion, namely, an Italian-French-British war or, equally fantastic, a +civil war in France. In contradictory terms Hitler spoke in his speech +on the one hand of an application of force, on the other of an attack by +Poland against East Prussia, which could only refer to a defensive +aspect—and in regard to Czechoslovakia he said that in all probability +Britain and France had already privately written that country off. This +reference is an indication that Hitler was prepared to negotiate, which +was borne out by actual developments. He said that Austria and +Czechoslovakia would be brought to their knees, but nevertheless in the +following year, in March and September 1938, he carried on negotiations +and settled both questions without war. This fact in particular seems +significant, because it proved to Raeder in the course of later events +that he was right in not ascribing undue importance to Hitler’s strong +words of 5 November 1937, for in spite of these words Hitler in reality +did carry on negotiations at a later date. + +During his interrogation Raeder also rightly pointed out that the second +extensive naval pact had been concluded with England only a few months +earlier and that as a result he could not seriously expect Hitler to +abandon a line of policy which he himself had initiated. + +And finally, there is this point: The whole document deals with +political questions on the one hand, and with possible land operations +on the other. Raeder had nothing to do with political questions because +he is no politician, while Neurath as Foreign Minister naturally had +reason to give Hitler’s political attitude more consideration. It is +also significant that Neurath testified here that as a result of this +speech he too asked Hitler about his personal attitude, and that he +refused to remain Foreign Minister because Hitler told him that those +were his true intentions. To me it seems typical of Hitler to tell one +person, Neurath, that perhaps he would go to war, and to tell another, +Raeder, that he would under no circumstances wage war. This divergence +in explaining his position was obviously caused by the fact that at that +time he no longer relished Neurath as Foreign Minister, because he +realized that with regard to the foreign policy which he proposed to +follow, Neurath would not be as submissive as the successor whom he had +in view, Ribbentrop. On the other hand at that time he still wanted at +all events to retain Raeder as Commander-in-Chief of the Navy. This is +another instance of how Hitler’s actions were determined by a certain +ultimate purpose, and how he always and without the slightest inhibition +followed the principle that the end justifies the means. + +Hitler’s speech of 23 May 1939, the so-called “Little Schmundt,” USA-27: +Here again Hitler expressed himself in a highly questionable fashion; he +speaks of a program of attack, of the preparation of a systematic +attack, and of the decision to attack Poland. I fail in no way to +recognize that there is good reason for the Prosecution to consider this +document as particularly good evidence. I believe, however, that taking +into account the numerous aspects which I pointed out, the value of this +document as evidence in the case of Raeder is very much smaller than the +Prosecution maintains, and very much smaller than a first glance at the +wording of the Schmundt version might warrant. Schmundt obviously made +an endeavor to formulate Hitler’s contradictory, fantastic, and +incongruous statements in a clear way in accordance with his own precise +military manner of thinking. This gives the document a clarity which +does not correspond to Hitler’s speech. We do not know when Schmundt +prepared the document, and he neglected to show the record he had made +to the other participants. + +During his examination and cross-examination the witness Admiral +Schulte-Mönting pointed to the contradictions in this particular +document, which I need not repeat here. Paramount importance must +however be given to the contradiction between these words and the words +which Hitler at the same time again and again used in conversation with +Raeder, and which always followed the same line, namely, that he did not +intend to wage war and that he would not make excessive demands. + +Raeder was shocked by this speech, and was only calmed by the private +conversation which he had with Hitler directly after the speech, when +Hitler assured him that he would under all circumstances settle the case +of Poland in a peaceful manner, too. Raeder believed him, and he had +every right to assume that Hitler was telling him the truth in answer to +his very precise question. I draw attention to the very exact statements +made on this document during the examination of Raeder and the +examination of the witness Schulte-Mönting.[58] I especially refer to +the statement of Schulte-Mönting that Hitler used the comparison that +nobody would go to court if he had received 99 pfennig when claiming one +mark, and added that in the same way he had obtained what he had +demanded politically, and that consequently there could be no question +of war on account of this last political question, that of the Polish +Corridor. That Raeder himself was absolutely opposed to a war of +aggression, and that in this respect he relied on Hitler’s assurances, +is proved by the statements of all witnesses, not least by the +deposition by Dönitz that on the occasion of the U-boat maneuvers in the +Baltic Sea in July 1939 Raeder, expressed his firm conviction that there +would be no war. Raeder, furthermore, knew that the Navy was absolutely +unfit for a war at sea against Britain; he had explained that to Hitler +again and again. But he was confident that in the Polish question +Hitler, as he had said, would again negotiate; the testimony of the +witness Dahlerus shows that negotiations did in fact take place, and +they were even successful at the beginning. The reason why nevertheless +the attempt finally failed and the second World War began, was explained +in detail by the witness Dahlerus who illustrated the terrible tragedy +of this event. + +It seems to me important that up to August 1939 not only the witness +Dahlerus, but also Chamberlain still believed in Hitler’s good will. It +must be said again therefore that one cannot expect Raeder as a soldier +to have been more farseeing and to have recognized Hitler’s dangerous +ideas, if men like Chamberlain, Halifax, and Dahlerus did not even at +that time see through Hitler. + +I have myself referred to the seriousness and the incriminating +character of this document, but I ask the Tribunal to take into +consideration that the incriminating material in this document, just as +in the document of 5 November 1937, is of a political nature. As defense +counsel for the Commander-in-Chief of the Navy, I have to judge the +facts not from a political but from a military point of view. From a +military point of view, however, it is absolutely impossible to follow +the arguments of the Prosecution, because military leaders are not +authorized to take part in decisions about war and peace, but merely +obliged to carry out such military preparations as the political leaders +consider necessary. In no country of the world does an admiral have to +give his opinion on whether some future war, for which he has to make +plans, will be a war of aggression or a defensive war. In no country of +the world does the decision of the question whether war will be waged +rest with the military, but on the contrary it is always left to the +political leaders, or to the legislative bodies. + +Accordingly, Article 45 of the German Constitution stipulates that the +Reich President shall represent the Reich in international relations and +continues: “The declaration of war and the conclusion of peace are +decreed by a law of the State.” + +Therefore, the question whether a war was to be waged against Poland +rested with the Reichstag, not with the military leaders. Professor +Jahrreiss has already explained that in view of the constitutional +development of the National Socialist State this decision rested in the +last analysis exclusively with Hitler. For the case of Raeder it is of +no consequence whether Hitler could be regarded as constitutionally +authorized to start a war on his own decision, as he actually did in the +autumn of 1939. The decisive factor is only that at all events the +military leaders were not authorized, either in practice or +constitutionally, to participate in this decision. The Prosecution +cannot possibly maintain that every act of military planning on the part +of Germany was a crime; for the military leaders, who merely receive the +order to work out a certain plan, are neither authorized nor obliged to +determine whether the execution of their plans will later on lead to an +aggressive or a defensive war. It is well known that the Allied military +leaders rightly hold the same view. No admiral or general of the Allied +armed forces would understand a charge being brought against him on the +basis of the military plans which were made on the Allied side, too, a +long time before the war. I do not have to elaborate this point; I +believe it will suffice if I refer to Document Number Ribbentrop-221. +This is a secret document, which, according to the title, deals with the +“Second Phase of the Anglo-French General Staff Conferences.” This +document shows that exact plans, regarding the Allied forces, were +worked out for a war embracing many countries; plans which, according to +this document, include a war in Europe and a war in the Far East. The +document expressly says that the French and British commanders-in-chief +in the Far East—I quote—“worked out a joint plan of operations,” and +it expressly speaks about the importance of possessing Belgian and Dutch +territories as a starting point for the offensive against Germany. The +decisive point about this parallel military case seems to me to be the +fact that this document bears a date from the same month as Hitler’s +much-discussed speech to his commanders-in-chief, namely, May 1939. The +document bears the caption: “London, 5 May 1939.” + +I now come to the address of Hitler to the commanders-ih-chief on 22 +August 1939 at the Obersalzberg.[59] Regarding the evidential value of +Documents 1014-PS and 798-PS submitted by the Prosecution, I should like +first of all for the sake of brevity to refer to the statements which I +made to this Tribunal in connection with the formal application to +withdraw Document 1014-PS. Although the Tribunal denied this +application, I still maintain that the evidential value attached to +these documents, and particularly to Document 1014-PS, is infinitesimal. +The American Prosecution, in presenting these documents pointed out at +the time[60] that the Tribunal should take into consideration any more +accurate version of this speech which the Defense might be able to +submit. I therefore submitted Exhibit Number Raeder-27,[61] the version +of the witness Generaladmiral Böhm, and I believe that when I submitted +it, I showed convincingly that it is in fact a more accurate version +than those provided by the Prosecution documents. Sir David Maxwell-Fyfe +then put in two documents where Böhm’s version is very scrupulously +compared with the versions 1014-PS and 798-PS; in this way he +considerably facilitated the comparison of these documents for all of +us. So as on my part to assist the Tribunal and the Prosecution in +making this comparison, I requested Generaladmiral Böhm in the meantime +to compare these versions himself and in doing so to use the compilation +of the British Prosecution which I mentioned just now. The result is +contained in Böhm’s affidavit. + +When surveying all this material, it becomes clear that Document 1014-PS +is extremely incomplete and inaccurate, all the more so as, apart from +its formal deficiencies, it covers only one and a half pages, and for +this reason alone cannot be an adequate reproduction of a 2½ hour +speech. + +Document 798-PS is no doubt more satisfactory, but it also contains +numerous errors, as Böhm’s affidavit shows. Not every sentence may be of +importance, but the point is that some of the most important passages +from which a charge against the commanders-in-chief might at best be +deduced were actually, according to Böhm’s sworn statement, never spoken +at all. According to Böhm’s affidavit, it is not true that Hitler said +that he had decided as early as the spring of 1939 to attack the West +first and the East later. Nor did he use the words: “I only fear lest at +the last moment some swine will come to me with an offer of mediation; +our political aims reach further.” And, most important of all, the +following words were never used either: “Annihilation of Poland ranks +foremost; the aim is to liquidate the living forces, not to reach a +certain line;” Hitler only spoke of the breaking-up of the military +forces. + +These differences in individual words and phrases are very important, +because they concern the sharp phrases to which the Prosecution has +frequently drawn attention, and from which the intention of a war +violating international law, and even the intention to murder civilians, +can be derived. If these phrases had been spoken, one could justly +accuse the commanders-in-chief who were present of having waged the war +and carried out Hitler’s orders in spite of the criminal end in view. +However, if these sentences were not used but, as Böhm testified under +oath, other sentences referring merely to military aims, then the +Prosecution cannot reproach any of the commanders-in-chief present for +having remained at their posts. No one can in earnest demand of an +admiral that he should resign his post a few days before the outbreak of +a war, and thus shake the military power of his own country. I am quite +aware of the fact that the most serious reproaches can be made against +Hitler’s attitude following the time of the Munich Agreement until the +outbreak of the war in Poland, although, and this is decisive for the +Raeder case, not against the military command, but exclusively against +the political leader. We know that Hitler himself realized this and for +that reason evaded all responsibility by his suicide without, either +during or at the end of the war, showing the slightest regard for the +life and the welfare of the German people. + +I come now to Hitler’s speech to the commanders-in-chief on 23 November +1939.[62] I shall deal with it quite briefly, and if you will permit me, +Mr. President, I should like to do this now before the Tribunal +adjourns, because the subject which follows is rather longer. + +THE PRESIDENT: Yes. + +DR. SIEMERS: I think I can be relatively brief with regard to this last +key document, which again fails to give the date on which the record was +made and lacks a signature; we do not therefore know the author of this +document. It is not an official transcript; and it again pursues a +special objective. Early in November 1939 a serious difference had +arisen between Hitler and the generals because Hitler wanted to start +the offensive in the West immediately, whereas the generals were of a +different opinion, and apparently hoped that the outbreak of a real +World War might still be avoided. Hitler’s dissatisfaction and annoyance +with his generals are clearly evident. In consequence, by repeating, as +usual, his past deeds, he strives to show what he has accomplished, and +also to show that he has always been right. It is an absolutely typical +Hitler speech reminiscent of his public speeches, in which he also loved +to boast and to glorify himself as a genius. Hitler, after all, belonged +to those people who always believe themselves to be right, and avail +themselves of every opportunity to prove it. He also took the +opportunity of using threats in order to nip in the bud the resistance +in high military circles which had become known to him, thus +strengthening his dictatorship. It is absolutely typical when he says in +this document, literally: “I shall not shrink from anything and I shall +destroy anyone who is against me.” This was recognized by foreign +military leaders, too. I draw attention for example to General +Marshall’s official report,[63] which speaks about the “lack of +far-reaching military planning” and about the fact that the German High +Command did not have an all-embracing strategic plan, and points out in +this connection that “Hitler’s prestige reached the stage at which one +no longer dared to oppose his views.” + +Finally it remains to be mentioned that this last key document dates +from a time when the war was already in progress, and that the military +leaders cannot be blamed if in all their plannings during a war they +strove to attain victory. The Allies too were planning at the same time. +I refer to Documents Number Ribbentrop-222 and Exhibit Number Raeder-34; +the former dates from 1 September 1939 and is a secret letter from +General Gamelin to Daladier containing the basic idea that it was +necessary to invade Belgium in order to wage the war outside the French +frontier. The other document also deals with military plans; it is a +secret letter from General Gamelin to General Lelong, Military Attaché +to the French Embassy in London, dated 13 November 1939, and also +concerns the operation which the Allies had planned in Holland and +Belgium. + + [_The Tribunal adjourned until 17 July 1946 at 1000 hours._] + + NOTES + +----- + +[12] Vanselow, _Völkerrecht_, Berlin, 1931, Figure 226 i. + +[13] In 1935, the American Senator Ney demanded the prohibition of +operational areas. In 1937 Charles Warren made a request for discussion +of the subject in the Society for International Law. And also the +afore-mentioned draft of a convention by American jurists of 1939 deals +with this question. + +[14] Théories stratégiques IV, Page 323: “Même en zone de guerre +n’aura-t-on pas contre sol le damné article 22 du traité de Londres?” + +[15] Bauer, Das U-Boot, 1931, Report on it by Captain G. P. Thomson, +R.N. in _The Journal of the Royal News Instruction 1931_, Page 511. + +[16] Sperrgebiete im Seekrieg, Zeitschrift für ausländisches +öffentliches Recht und Völkerrecht, Volume VIII, 1938, Page 671. + +[17] French Yellow Book, La Conférence de Washington, Page 88. + +[18] Report of 8 October 1940, Page 3: “One thing is certain, namely, +apart from vessels in declared war zones, destruction of a merchant +vessel is envisaged if even only after capture.” + +[19] Commander Russel Grenfell, R.N., _The Art of the Admiral_, London, +1937, Page 80. “The neutral merchants, however, are not likely to +relinquish a highly lucrative trade without a struggle and thus there +arises the acrimonious wrangle between belligerents and neutrals which +is a regular feature of maritime warfare, the rules for which are +dignified by the name of international law.” + +[20] _De jure pacis ac belli_, Book III, Chapter I, Paragraph 6, +citation Augustin: “One may conceal the truth wisely,” and Cicero: +“Dissimulation is absolutely necessary and unavoidable, especially for +those to whom the care of the state is entrusted.” + +[21] Admiral King, _Report of the American High Command_. + +[22] John Chamberlain, “The man who pushed Pearl Harbor,” _Life_, of 1 +April 1946. + +[23] Manual for Courts Martial U.S. Army, 1928, Page 10. + +[24] In this connection I mention the extensive literature dealing with +the right of self-preservation in cases of urgent necessity. The +surprise attack on the Danish fleet, 1807, as well as the hunger +blockade against Germany are based on that. + +[25] Freiherr von Freytagh-Loringhoven, _Völkerrechtliche Neubildungen +im Kriege_, Hamburg 1941, Page 5. + +[26] Quoted from “_Neue Auslese_,” 1946, Number 1, Page 16. + +[27] Not always acknowledged by English authors. Compare for instance A. +C. Bell, _A History of the Blockade of Germany_, et cetera, London, +1937, Page 213: “The assertion that civilians and the Armed Forces have +been treated only since 1914 as a uniform belligerent body is one of the +most ridiculous ever made.” + +[28] Grenfell, _The Art of the Admiral_, London, 1937, Page 45: “By the +early part of 1918, the civil population of Germany was in a state of +semistarvation, and it has been calculated that, as a result of the +blockade, over 700,000 Germans died of malnutrition.” + +[29] See also protest of the Soviet Government to the British Ambassador +of 25 October 1939, printed as Number 44 in “_Urkunden zum +Seekriegsrecht_,” Volume I, edited by the High Command of the Navy. + +[30] See for instance _Wheaton’s International Law_, 5th Edition, Page +727, Liddell Hart, “The Revolution in Naval Warfare,” _Observer_ of 14 +April 1946. + +[31] Oppenheim, Die Stellung des Kauffahrteischiffes im Seekrieg, +_Zeitschrift für Völkerrecht_, 1914, Page 165. + +[32] Concerning the execution of these orders in the first World War, +Vidaud, in “_Les navires de commerce armés pour leur défense_,” Paris, +1936, Pages 63-64 says as follows: “Les équipages eux-mêmes sont +militarisés et soumis à la discipline militaire, ainsi que le capitaine +Alfred Sheldon, appartenant à la réserve de la Marine Royale, a été +condamné, le 8 Septembre 1915 par le conseil de guerre de Devonport, +pour n’avoir pas attaqué un sousmarin allemand.” + +[33] Compare for instance “Submarines in the Atomic Era” in the _New +York Herald Tribune_, European Edition, of 27 April 1946, Page 2. + +[34] A. C. Bell, Historical Section, Committee of Imperial Defense, _A +History of the Blockade of Germany and of the Countries Associated with +Her in the Great War 1914-1918_—The introduction contains the remark: +“This history is confidential and for official use only.” (Quoted from +the German edition by Böhmert, _Die englische Hunger-blockade im +Weltkrieg_, Essen, 1943). + +[35] Hugo Grotius, _De jure pacis ac belli_, Book II, Chapter XXI. + +[36] Hugo Grotius, _De jure pacis ac belli_, Book II, Chapter XXVI. +Paragraph 4, “He can believe that in a matter of doubt he must obey his +superior.” + +[37] See _Wheaton’s International Law_, 5th Edition, Pages 543-5. + +[38] Claud Mullins, _The Leipzig Trials_, London, 1921. + +[39] See Document Book 1, Documents Numbers Raeder-3 and 4, Page 9 et +sequentes. + +[40] Especially the following documents are concerned: + +C-140, USA-51 of 25 October 1933; C-159, USA-54 of 2 March 1936; C-194, +USA-55 of 6 March 1936; C-175, USA-69 of 24 June 1937; 388-PS, USA-26 of +20 May 1938; C-136, USA-104 of 21 October 1938. + +[41] Record of 4 December 1945, Volume III, Page 95. + +[42] Record of 4 December 1945, Volume III, Page 110. + +[43] Reich Defense Law of 4 September 1938. + +[44] For instance under Balfour and Churchill. + +[45] Document Book 1, Document Number Raeder-4, Page 12. + +[46] Document Book 6, Document Number Raeder-121, Page 524. + +[47] Refer also to Ronneberger Affidavit, Document Book 6, Document +Number Raeder-126, Page 543 et sequentes which point to the same +subjects, especially to the strong Christian belief of Raeder and to the +pronounced opposition to Christianity and Church by Bormann. + +[48] Second Lohmann Affidavit, Document Number Raeder-8, Document Book +1, Page 41. + +[49] Refer to Documents 386-PS, USA-25; L-79, USA-27; 798-PS, USA-29; +1014-PS, USA-30; 769-PS, USA-23. + +[50] Document Book 2, Document Number Raeder-27, Page 144 et sequentes. + +[51] See Hossbach Document. + +[52] Record of 19 March 1946, Volume IX, Page 463. + +[53] Record of 19 March 1946, Volume IX, page 481. + +[54] Record of 16 May 1946, Volume XIV, Page 35. + +[55] Record of 22 May 1946, Volume XIV, Page 314. + +[56] Record of 22 May 1946, Volume XIV, Page 306. + +[57] Record of 22 May 1946, Volume XIV, Page 306. + +Affidavit Generaladmiral Böhm, Document Number Raeder-129. + +Affidavit Generaladmiral Albrecht, Document Number Raeder-128. + +[58] Record of 22 May 1946, Volume XIV, Page 306. + +[59] See Documents Numbers 798-PS, USA-29; 1014-PS, USA-30, Document +Book 2. Page 144, Document Number Raeder-77. + +[60] Record of 26 November 1945, Volume II, Page 292. + +[61] Raeder Document Book 2, Page 144. + +[62] See Document 789-PS, USA-93. + +[63] Document Book 2, Pages 116-117, Document Number Raeder-19. + + + + + ONE HUNDRED + AND EIGHTIETH DAY + Wednesday, 17 July 1946 + + + _Morning Session_ + +DR. SIEMERS: Yesterday I dealt with the events before the outbreak of +war. Now I shall turn to the events which occurred during the war. + +I think I have shown that the Navy had an extremely insignificant part +in all events prior to the war, and that the transactions in which the +Navy was authoritatively involved were carried out on a peace basis, +namely, on the basis of the naval agreements with England. When the war +nevertheless ultimately broke out, involving England, too, on 3 +September 1939, a regrettable incident occurred on the very first day, +through the sinking of the _Athenia_, from which the Prosecution +endeavors by the use of exaggerated terms to construe a grave moral +charge against Raeder, not so much indeed on the basis of its actual +military aspect, that is, the sinking, which my colleague Dr. +Kranzbühler has already discussed, as on account of an article published +in the _Völkischer Beobachter_ of 23 October 1939 entitled “Churchill +Sinks the _Athenia_.” Were the facts as brought forward by the +Prosecution correct, the moral accusations against Raeder and the Navy +would be justified, even though, of course, an untruthful newspaper +article is no crime. Consequently the accusation brought by the +Prosecution is made for the sole purpose of vilifying Raeder’s +personality in contrast to the lifelong esteem which Raeder has enjoyed +in the whole world, in fact especially abroad. + +I think the evidence has sufficiently revealed that the statement of +facts presented by the Prosecution is not correct. It is quite plausible +that at first sight the Prosecution should have believed that the odious +article in the _Völkischer Beobachter_ could not have appeared without +the knowledge of the naval command. The Prosecution believed this +because, in view of their conspiracy theory, they are inclined to assume +in every case that there was constant discussion and close co-operation +among the various departments. The course of the Trial has shown that +this assumption is far from correct. The contrast between the various +departments, and especially between the Navy and the Propaganda +Ministry, or Raeder and Goebbels, was far greater than the contrast +between departments in a democratic state. In addition, the testimonies +of the witnesses Raeder, Schulte-Mönting, Weizsäcker, and Fritzsche, +together with the documents, establish the following facts absolutely +clearly: + +(1) In early September 1939 Raeder himself firmly believed that the +sinking was not to be imputed to a German U-boat, because it was +revealed by the reports that the nearest German U-boat was at least 75 +nautical miles away from the spot of the sinking. + +(2) Accordingly Raeder, as stated in Document D-912, published a _bona +fide_ denial and gave statements to this effect to the American Naval +Attaché and to the German State Secretary, Baron Weizsäcker. + +(3) Raeder did not realize the mistake until after the return of _U-30_ +on 27 September 1939. + +(4) Hitler insisted, as evidenced by witnesses Raeder and +Schulte-Mönting, that no rectification of the facts should be made to +any other German or foreign department, that is to say, that the sinking +should not be acknowledged as caused by a German U-boat. He apparently +let himself be guided by political considerations and wished to avoid +complications with the U.S.A. over an incident which could not be +remedied, however regrettable it was. Hitler’s order was so strict that +the few officers who were informed were put under oath to keep it +secret. + +(5) Fritzsche disclosed, that after the first investigation by the Navy +in early September 1939, he made no further investigation and that the +_Völkischer Beobachter_ article appeared as the result of an agreement +between Hitler and Goebbels, without previous notice to Raeder. On this +point the testimonies of Raeder and Schulte-Mönting coincide. It is +consequently clear that Raeder—contrary to the claim of the +Prosecution—was not the author of the article and, moreover, knew +nothing about the article before its appearance. I regret the fact that +in spite of this clarification the Prosecution are apparently intent +upon persisting in their claim by the submission, on 3 July 1946, of a +new document, D-912. This newly-submitted document only contains radio +broadcasts by the propaganda Ministry, which are of the same nature as +the _Völkischer Beobachter_ article. These radio broadcasts were a +propaganda instrument of Goebbels and cannot, any more than the article, +be brought up as a charge against Raeder, who in fact was at the time +informed only of the article, not of the radio broadcasts. Even the fact +that Raeder, after being informed of the article, did not attempt to +obtain a rectification, cannot be made a moral charge against him, since +he was bound by Hitler’s order and had no idea at the time that Hitler +himself had had a hand in the article, which Weizsäcker aptly described +as perverse fantasy. + +In this connection I would remind the Tribunal that it is a well-known +fact that precisely at the beginning of the war inaccurate reports also +appeared in the English press about alleged German atrocities, which, +even after their clarification, were not rectified, as for instance, the +false report about the murder of 10,000 Czechs in Prague by German +elements in September 1939, although the matter had been cleared up by a +commission of neutral journalists. + +The Prosecution professes to possess overwhelming material against all +the defendants. If this presumption were correct with reference to +Raeder, the Prosecution would scarcely have felt the need of bringing +forward this _Athenia_ case, of all things, in such ponderous and +injurious terms for the sole purpose of discrediting the former +Commander-in-Chief of the Navy. + +Concerning Greece, the Prosecution accuses Raeder of violation of +neutrality and breach of international law on two counts, namely: + +(1) On the basis of Document C-12, according to which Hitler decided, +basing on a report by Raeder on 30 December 1939, that: + + “Greek merchant ships in the zone around England which the + U.S.A. declared prohibited will be treated like enemy ships.” + +(2) According to Document C-176, on the occasion of the delivery of a +report to Hitler on 18 March 1941, Raeder asked for confirmation that +“all of Greece was to be occupied, even in case of peaceful settlement.” + +In the course of the Trial both accusations have turned out to be +untenable; in both cases there is no action which violated international +law. + +With reference to the first accusation it should be pointed out that +Raeder and the German Naval Command learned in October or November 1939 +that quite a number of Greek merchant ships had been put at the disposal +of England, either at the request or with the approval of the Greek +Government (Documents Number Raeder-53, 54). This fact cannot be +reconciled with strict neutrality, and according to the principles of +international law that gave Germany the right to take an equivalent +countermeasure. This justified countermeasure consisted in treating +Greek ships heading for England as enemy ships from the moment they +entered the zone around England which had been declared prohibited by +the United States. + +With reference to the second accusation it must be noted that Germany, +especially the High Command of the Navy, had received reports that +certain Greek military and political circles had maintained very close +connections with the Allied General Staff ever since 1939. As time went +by more and more reports came in. What the Allies were planning in the +Balkans is known; the intentions were to erect a Balkan front against +Germany. For this purpose local conditions in Greece, as well as in +Romania, were examined by Allied officers on behalf of the Allied +General Staff in order to establish airplane bases there. Furthermore, +preparations were made to land in Greece. As proof I have presented, as +Exhibit Number Raeder-59, the minutes of the session of the French War +Committee of 26 April 1940, which shows that the War Committee was at +that time already examining the question of possible operations in the +Caucasus area and in the Balkans and which further reveals the activity +of General Jauneaud in Greece for the purpose of continuing +investigations and preparations and shows how he endeavored to +camouflage his trip by making it in civilian clothing (Document Number +Raeder-63). + +This attitude of Greece, and especially her falling in with Allied +plans, represents a violation of neutrality on the part of Greece; for +Greece did not appear as England’s ally but formally continued to +maintain her neutrality. Therefore, Greece could no longer expect that +Germany would fully respect Greek neutrality. Germany nevertheless did +do so for a long time. The occupation of Greece took place in April 1941 +only after British troops had already landed in southern Greece on 3 +March 1941. + +The fact that Greece agreed to the British landing is, according to +generally recognized rules, without significance in international legal +relations and with regard to the international legal decision between +Germany and England and between Germany and Greece; it has importance +only in the legal relations between England and Greece. + +The British Prosecution tried to justify the occupation of Greece by +pointing to the fact that Greek neutrality was menaced by Germany, +especially by the occupation of Bulgaria on 1 March 1941. In this +connection the Prosecution is overlooking the fact that not only did the +occupation of Greece by British forces start considerably earlier than +the German planning, but also the planning of the Allies. But be that as +it may, in any case, no accusation whatever can be made against Raeder, +because the date of the document submitted by the Prosecution is 18 +March 1941, which means that it is 14 days later than the landing of the +British in southern Greece. At that time Greece could certainly no +longer demand that her alleged neutrality be respected. It is also an +unjustified charge when the Prosecution points out that Raeder asks for +confirmation that all of Greece will be occupied. This request by Raeder +cannot be made responsible for the fact that all of Greece was occupied, +for Hitler had already provided in his Directive Number 20 of 13 +December 1940 that the entire Greek mainland was to be occupied, in +order to frustrate British intentions of creating a dangerous basis for +air operations under the protection of a Balkan front, especially for +the Romanian oil district. In addition to that, the inquiry of Raeder on +18 March 1941 was justified on strategic grounds, because Greece offered +many landing possibilities for the British and the only possible defense +was for Greece to be firmly in the hands of Germany, as the witnesses +Raeder and Schulte-Mönting have explained. + +This strategic conception of Raeder had nothing to do with plans of +conquest or thirst for glory, as the Prosecution thinks, for the Navy +won no glory whatsoever in Greece, since the occupation was a land +operation. The occupation of an originally neutral country is simply the +regrettable consequence of such a large-scale war; it cannot be charged +to one belligerent if both belligerents had plans concerning the same +state, and carried out these plans. + +I should like now to go on to the subject of Norway. On 9 April 1940 +troops of all three branches of the German Armed Forces occupied Norway +and Denmark. From this and the preceding plans, the Prosecution have +brought the gravest accusation against Grossadmiral Raeder, together +with the collective charge of participation in a conspiracy. + +The British prosecutor pointed out that it was Raeder who first +suggested the occupation of Norway to Hitler, and believes that Raeder +did so out of a spirit of conquest and vainglory. I shall demonstrate +that this argumentation is incorrect. One thing is true, that is that in +this single instance Raeder took the initiative of first approaching +Hitler on the subject of Norway, namely on 10 October 1939. However, I +shall show that in fact in this connection he acted not as a politician +but exclusively as a soldier. Raeder sensed purely strategic dangers and +pointed out these strategic dangers to Hitler, because he assumed that +the Allies were contemplating the establishment of a new front in +Scandinavia and in Norway, in particular, and realized that an +occupation of Norway by Britain might have militarily disastrous +consequences for Germany. I shall show that Germany committed no +violation of international law by the occupation of Norway. Before I +state the legal foundation and connect the facts established by the +appraisal of evidence with the principles of international law, I should +like first to state an important fact: + +As Raeder’s examination shows and as disclosed by Schulte-Mönting’s +interrogations, he very reluctantly advocated the Norwegian campaign as +Commander-in-Chief of the Navy. Raeder had the natural feeling born of +justice that a neutral state could not be drawn into the existing war +without an absolutely imperative emergency. During the period between +October 1939 and spring 1940, Raeder always upheld the theory that by +far the best solution would be for Norway and all Scandinavia to remain +absolutely neutral. + +Raeder and Schulte-Mönting were in agreement on this point during their +interrogations; and it is, moreover, proved by documents. For this, I +refer to Exhibit Number Raeder-69 where the conviction of Raeder is +expressed that the most favorable solution would undoubtedly be the +preservation of the strictest neutrality by Norway; this is entered in +the War Diary on 13 January 1940. Raeder clearly saw that an occupation +of Norway by Germany, for reasons of international law or strategy, +could only be conceivable if Norway could not or would not maintain +absolute neutrality. + +The Prosecution has referred to the treaties between Germany and Norway, +in particular to Document TC-31, by which the Reich Government, on 2 +September 1939, expressly assures Norway of her inviolability and +integrity. In this memorandum, however, the following legitimate remark +is added: + + “As the Reich Cabinet makes this declaration, it naturally also + expects that Norway in turn will observe irreproachable + neutrality toward the Reich and that it will not tolerate + breaches of Norwegian neutrality, should attempts along that + line be made by third parties.” + +If, despite this fundamental attitude, Germany decided to occupy Norway, +this was done because the plans of the Allies made imminent the danger +of an occupation of Norwegian bases by them. In his opening speech Sir +Hartley Shawcross declared that Germany’s breach of neutrality and her +war of aggression against Norway remained criminal in the sense of the +Indictment even if Allied plans for the occupation had been correct, and +he added that in reality such plans were not true. I believe that the +argument advanced here by Sir Hartley Shawcross is contrary to accepted +international law. If Allied plans for the occupation of Norwegian bases +existed and there was a risk that Norway neither would nor could +maintain strict neutrality, then accepted standards of international law +did sanction Germany’s Norwegian campaign. + +I would first like to bring up the juridical viewpoints based on +prevailing international law in order to create a foundation for my own +statements, and thereby at the same time to set forth those legal +viewpoints which contradict the Prosecution’s interpretation. In order +to save time in this legal exposition and make the subject matter +clearer I have submitted as Exhibit Number Raeder-66 an opinion on +international law with regard to the Norway campaign by Dr. Hermann +Mosler, professor of international law at the University of Bonn. The +High Tribunal will remember that I was given permission to make use of +this opinion for purposes of argumentation, and I would therefore refer +at this point to this detailed scientific compilation and findings. For +the purpose of final plea I shall confine myself to a summary of the +essential concepts of the opinion. + +Articles 1 and 2 of the Hague Convention on Rights and Obligations of +Neutrals in the event of warfare at sea stipulate that the parties at +war are bound to respect the rights of sovereignty of neutral powers in +the territory and coastal waters of the neutral power, and all hostile +acts of warships of the belligerent parties within the coastal waters of +a neutral power are strictly banned as violations of neutrality. +Contrary to these stipulations Great Britain violated Norway’s +neutrality through the laying of mines in Norwegian coastal waters for +the purpose of obstructing the legitimate passage of German warships and +merchantmen, especially in order to cut off shipments of iron ore from +Narvik to Germany. In the letter from the British Foreign Office which I +received in reply to my petition for authorization to submit files of +the British Admiralty, confirmation as per Exhibit Number Raeder-130 was +received to the effect that His Majesty’s forces laid mine fields in +Norwegian waters, and in addition it was stated that this was a +well-known fact (Documents Number Raeder-83, 84, 90). + +The fact is presumably uncontested that thereupon Germany was justified +in restoring the equilibrium between the belligerent parties, in other +words by setting her Armed Forces to wrest from the enemy the benefit he +was deriving from a violation of neutrality. Reaction against such a +violation of neutrality is directed primarily against the enemy, not +against the neutral. The legal relationship to neutrality ... + +PRESIDENT [_Interposing_]: Dr. Siemers, the Tribunal would like to know +what your contention is on this subject. Do you contend that any breach +of neutrality of a warring state entitles one of the warring nations to +enter that neutral state? + +DR. SIEMERS: Mr. President, in this general way one certainly could not +say that. It is a principle of international law that a violation of +international law committed by one state only entitles the other warring +nation to a countermeasure in proportion to the breach of neutrality +committed. Certainly an occupation of Norway on the part of Germany +would not be justified because Britain mined the coastal waters. The +fact does not justify an occupation. + +PRESIDENT: Would it be your contention that it made any difference on +the rights of Germany if Germany were to be held to be an aggressor in +the original war? + +I will repeat it. According to your contention, would it make any +difference that Germany was held, if it were held, to be the aggressor +in the original war out of which the occupation of the neutral country +occurred? + +DR. SIEMERS: Mr. President, I beg to apologize, but I am afraid I cannot +quite understand the sense as it comes through in translation. + +PRESIDENT: I will say it again more slowly. According to your +contention, would it make any difference if the Tribunal were to think +that Germany had been the aggressor in the war which led to the +occupation of the neutral state? + +DR. SIEMERS: My apologies, Mr. President. Now, if I understood that +correctly, you wish me to answer the question whether the fact that +previously a war had been begun by Germany against Poland would +influence juridical attitude toward the question of Norway. + +PRESIDENT: Assuming, I only say assuming that the war begun by Germany +against Poland were to be held to be an aggressive war. + +DR. SIEMERS: Mr. President, I believe that I must answer in the +negative, because the individual facts under international law must be +dealt with separately. The fact that the Tribunal may possibly assume +that an aggressive war was conducted against Poland cannot, from the +point of view of international law, have any effect upon subsequent +years. + +That, incidentally, is the point of view which, I believe, was adopted +by the Prosecution, for Sir Hartley Shawcross also, dealt with the +question of Greece and the question of landings entirely under the +aspect of Greek events and did not contend that Britain could occupy +Greece because Germany had occupied Poland. He said, just as I did, that +from the legal standpoint of international law Britain could occupy +Greece because Greece was threatened by a German occupation. That is +what I am saying from the point of view of international law with +reference to Norway; as my further remarks will show, I am not trying to +draw any other parallels. + +PRESIDENT: Yes. There is one other question which I should like to ask +you. Is it your contention that Germany was entitled under international +law to use the territorial waters of Norway, either for her warships or +for the transport of ore, or for the transport of prisoners of war? + +DR. SIEMERS: In my opinion, from the standpoint of international law, +the situation is that Germany was entitled to use the coastal waters, +observing at the same time the various international rules, such as for +instance, only brief stays in ports and similar rulings like the +obligation to submit to investigation by neutrals in the case of the +_Altmark_. But basically, carrying on shipping operations from Narvik +was justified according to international law as far as I know. + +PRESIDENT: Continue. + +DR. SIEMERS: Mr. President, with reference to the last point, may I add +one thing? Should the view be adopted that Germany was not allowed to +use these coastal waters, then the mining of these coastal waters would +have been a justified breach of neutrality on Britain’s part, so that, +as far as I am concerned, the mining operation as grounds for this would +have to be left out of my plea, though not the other facts I am citing. +Mining the waters is in equivalent proportion to the use of the coastal +waters. I myself consider that the mining operation was not permissible, +while passage through coastal waters was; but this does not affect the +entire subject of the occupation of Norway. I hope I shall be understood +as not meaning that Germany was justified in occupying Norway because +Britain had mined the coastal waters. + +PRESIDENT: But you are saying, are you, that Germany was entitled to use +the coastal waters, first of all, for the transport of ore; secondly, +for her warships? + +DR. SIEMERS: Yes. + +PRESIDENT: And thirdly, for the transport of prisoners of war? + +DR. SIEMERS: Yes. It is my opinion, Mr. President, that as to ore +shipments there is no prohibitive clause in international law, so that +this shipping was permissible. + +With reference to prisoners of war, may I point out that only one case +arose and that is the case of the _Altmark_. If Germany was not deemed +authorized to use coastal waters for the transport of prisoners of war, +then that could at most lead to Britain’s adopting an equivalent single +countermeasure; but she would not be justified in mining the entire +coastal waters. The mining of the entire coast, from the point of view +of international law, is only justified if you adopt the point of view +that Germany’s merchant shipping was prohibited from entering those +coastal waters by international law. But that, in my opinion, is not the +situation. + +PRESIDENT: You may continue. + +DR. SIEMERS: Reaction against such violation of neutrality is primarily +directed against the adversary, not against the neutral party. Legal +relationship deriving from neutrality exists not only between the +neutral party and the two belligerent parties, but the neutrality of the +state in question is at the same time a factor in direct relations +existing between the belligerent parties. If the relationship of +neutrality between one of the belligerent parties and the neutral power +suffers disturbance, the neutral power can in no way file complaint if +the other belligerent power takes appropriate action; at the same time +it is entirely immaterial whether the neutral state is unable or +unwilling to protect its neutrality (Document Number Raeder-66). + +The legal title under which the belligerent power thus placed at a +disadvantage can proceed to take countermeasures is the “right of +self-defense” (_das Recht der Selbsterhaltung; le droit de défense +personelle_). As brought out in detail by this opinion, this right of +self-defense is generally recognized by international law. It suffices +to point out here that this basic law is not affected by the Kellogg +Pact, which has so often been mentioned in this Court. In this +connection I ask permission to offer the following brief quotation from +the circular memorandum of the U.S. Secretary of State, Kellogg, dated +23 June 1938: + + “There is nothing in the American draft of an antiwar treaty + which restricts or prejudices the right of self-defense in any + manner. That right is inherent in every sovereign state and is + implied in every treaty.” + +Justice Jackson will permit me to mention that he himself, in his +opening speech of 21 November 1945, referred to the “right of legitimate +self-defense.” + +It is interesting that in his address before Parliament on 8 February +1940, the Swedish Foreign Minister, Guenther, recognized this concept, +although he represented the interests of a state whose neutrality was +endangered at the time, and in addition was speaking before Germany +proceeded to retaliatory measures in Norway (Document Number Raeder-66). +In that address Guenther expressed his opinion with regard to the +British declaration that Sweden’s neutrality would be respected only as +long as it was respected by Britain’s enemies. Guenther recognized the +fact that Sweden, in her relationship to England, would lose her +neutrality should Germany violate Sweden’s neutrality and should Sweden +be neither willing nor able to prevent such violation of her neutrality +by Germany. Consequently, Guenther said, Great Britain would no longer +be required to treat Sweden as a neutral country. It is obvious that the +conclusions drawn by Guenther in the event of a breach of Sweden’s +neutrality by Germany must also apply to the three-cornered legal +relationship between Great Britain, Germany, and Norway. What was +involved, however—and this I shall set forth in my presentation of +evidence—was not Great Britain’s mine-laying activity in Norwegian +coastal waters but a much more far-reaching Anglo-French scheme aiming +at the occupation of Norwegian bases and of a portion of the Norwegian +home territory. The mine-laying activity enters into the picture merely +as a part of the total plan. + +According to Mosler’s opinion and in the light of the above remarks, it +is absolutely clear that Germany was justified in occupying Norway had +the Allies carried part of their plan into effect by landing at a +Norwegian base before German troops made their appearance. This, +however, was not the case. Rather, as I will show, was the situation +such that Germany anticipated an Anglo-French landing; in other words, +she decided on countermeasures in anticipation of the imminent danger +which threatened. + +Another legal question arises therefrom: Assuming the same conditions, +are countermeasures by a belligerent permitted only after the opposing +belligerent has proceeded to violate neutrality, or is a reaction +permitted beforehand in view of the imminently threatening violation of +neutrality, in order to head off the enemy’s attack which can be +expected at any moment? + +According to the well-founded opinion of Dr. Mosler preventive +countermeasures are permissible; and an impending violation of +neutrality, which can be expected with certainty, is considered equal to +a completed violation of neutrality. + +The well-known English specialist on international law, Westlake, states +with regard to the question of measures: + + “Such a case in character resembles one where a belligerent has + certain knowledge that his opponent, in order to gain a + strategic advantage, is just about to have an army march through + the territory of a neutral who is clearly too weak to resist; + under the circumstances it would be impossible to refuse him the + right to anticipate the attack on the neutral territory.” + +The justification for such a preventive measure, according to Westlake, +lies in the right of self-defense, which applies equally against a +threatening violation of neutrality. Any other concept would fail to +meet the facts of life and would not correspond to the character of the +society of nations as an aggregation of sovereign states with an as yet +incompletely developed common code of law. In the domestic law system of +every civilized country the prevention of an immediately threatening +attack is a permissible act of defense, although in such a contingency +even the help of the state against the law-breaker is available. In the +community of international law, where this is not the case—at any rate +not at the beginning of and during the second World War—the viewpoint +of self-defense must apply to an even greater extent. In keeping with +this concept, the British Government during this war also considered the +preventive measure justified when it occupied Iceland on 10 May 1940. +The British Government justified this measure clearly and correctly in +accordance with international law in an official announcement of the +Foreign Office, as follows: + + “After the German occupation of Denmark it has become necessary + to count on the possibility of a sudden German raid on Iceland. + It is clear that the Icelandic Government, in case of such an + attack, even if it were only carried out with very small forces, + would be unable to prevent the country from falling completely + into the hands of the Germans.” + +The preventive measure was carried out by Britain, although Iceland +expressly protested by a note against the occupation. I also ask to note +that the United States agreed with this standpoint of law, as is proved +by the well-known message from the President of the United States to +Congress of 7 July 1941, and the subsequent occupation of Iceland by +armed forces of the American Navy. + +In accordance with these basic principles of law, the facts at hand must +be examined. I have tried to clarify the facts in the presentation of +evidence, and I would like to summarize the major factors which actually +indicated a closely impending violation of neutrality on the part of the +Allies by a partial occupation of Norway, and thereby justified the +German campaign in Norway. + +At the end of September and early in October 1939, Admiral Raeder, as +the evidence has shown, received various items of information through +the regular reports of Admiral Canaris as chief of intelligence and +through Admiral Carls, which gave reason to believe in the danger of the +Allies’ proceeding to occupy bases in Norway, in accordance with their +plans to encircle Germany in order to put a stop, in particular, to ore +imports from Scandinavia. + +British flying personnel camouflaged in civilian clothing had been seen +in Oslo; and survey work by Allied officers on Norwegian bridges, +viaducts, and tunnels up to the Swedish border had been identified. +Furthermore, the quiet mobilization of Swedish troops, owing to the +danger to Swedish ore territories, had become known. Raeder was +justified in considering himself obliged to report these facts to Hitler +and to point out to him the danger which would arise for Germany if +British and French armed forces were to gain a foothold in Scandinavia. +The dangers were clear. They consisted of the cutting-off of all imports +from the industrial areas of Scandinavia, in particular of the ore +imports, as well as in the fact that the Allies would obtain a favorable +base for air attacks, and last but not least, in the fact that the +German Navy would be threatened on its flank and its operational +potentialities would be limited. + +The blockade of the North Sea and Baltic would have had strategically +disastrous consequences. As the information did not yet allow of a final +over-all picture, Raeder did not suggest immediate occupation, but only +pointed out the dangers, intending to await further developments for the +time being. Neither did Hitler make a final decision during this +discussion of 10 October 1939 but agreed to wait. Similar information +was received during the months of October and November, this time also +from the naval attaché, Korvettenkapitän Schreiber, who had in the +meantime been sent to Oslo, whose affidavit (Document Raeder-107) I +would like to cite. It shows that the Norwegian shipping association had +made tanker tonnage of about one million tons available to Britain with +the consent of the Norwegian Government (Document Number Raeder-68). + +In the winter of 1939-40, information took on a more definite form +concerning espionage missions given by the British and French Secret +Service to Norwegian agents and British harbor consulates for the +purpose of reconnoitering landing facilities and examination of +Norwegian railroads with regard to their capacity, particularly the +Narvik line, and missions concerning information about land and sea +airports in Norway. From the fact that the information from two +different sources, namely, the naval attaché in Oslo and Admiral +Canaris, checked and became more and more certain during the period from +October to December 1939, the danger indicated appeared to keep +increasing. + +In addition, in December 1939 Quisling and Hagelin sent to +Rosenberg—entirely independently of the sources of information which +had existed up to that time—the same and similar information concerning +the landing intentions of the Allies. This did not go to Raeder for the +sole reason that Raeder did not know either Quisling or Hagelin at that +time. Since the question involved was a purely military-strategic one, +Rosenberg asked Raeder to discuss things with Quisling so that Raeder +could examine the military-technical possibilities in consideration of +the fact the aggression by the Allies in Scandinavia must be expected +according to the information received. This is evident from the letter +from Rosenberg to Raeder of 13 December 1939, which I submitted as +Exhibit Number Raeder-67. Raeder considered it his duty from the purely +military point of view to inform Hitler, with whom he had not discussed +this question in the meantime, that coinciding information had since +been received from Canaris, the naval attaché in Oslo, and Quisling. +Hitler asked to speak with Quisling personally, whereupon he decided, in +order to meet the threat, to make the necessary preparations for an +eventual preventive measure, namely, the occupation of Norway (Document +C-64, Exhibit Number GB-86). + +The final decision was still deferred, and further information was +awaited as to whether the danger appeared to increase. This caution and +delay will readily be understood in the case of Raeder. As I have +already observed, Raeder would have preferred to see the neutrality of +Norway maintained, especially since he was against any conquest just for +the sake of conquest. He knew, on the other hand, that an occupation +required the commitment of the whole Navy, thus involving the fate of +the entire Navy, and that the loss of at least a third of the whole +fleet had to be reckoned with. It must surely be clear how difficult, +from such political and strategic viewpoints, such a decision was for a +responsible man and soldier. + +Unfortunately, during the first months of the year 1940, the reports +multiplied and kept becoming more certain. In March 1940 uncommonly many +English-speaking persons could be seen in Oslo, and Raeder received very +serious and credible information about impending measures by the Allies +against Norway and Sweden. As far as landing intentions were concerned, +Narvik, Trondheim, and Stavanger were mentioned. In this manner the +military planning actually was not undertaken until February and March +1940, and final instructions were issued to the Wehrmacht only in March +1940. In addition, numerous violations of neutrality occurred in March +1940, which have been collected in the War Diary (Documents Raeder-81 +and 82), and also the mine-laying in Norwegian territorial waters at the +beginning of April. + +The Prosecution has put in only a few documents against this +comprehensive informative material, according to which the German +Minister in Oslo, Breuer, did not look upon the danger as being so great +but believed that British activities, which he also reported, tended +merely to provoke Germany into opening war operations in Norwegian +waters (Documents Number D-843, Exhibit GB-466; D-844, Exhibit GB-467; +D-845, Exhibit GB-486). + +Baron Weizsäcker’s point of view in cross-examination was that at first +he did not consider the danger so great either; but he admitted that +later on the facts proved that he and Breuer were wrong, while Raeder +had been right in his apprehension. + +This objective accuracy of the opinion of Admiral Raeder, and of the +information on which he based his opinion, is shown in the various +documents submitted by me and accepted by the Court. + +Since 16 January 1940, the French High Command had been working on a +plan which had in view, among other things, the occupation of harbors +and airfields on the west coast of Norway. The plan provided, in +addition, for an eventual extension of operations to Sweden and +occupation of the mines of Gallivare (Document Number Raeder-79). +Efforts have been made to justify this plan by stating that it was +elaborated solely to help Finland against the Soviet Union. + +To begin with, it might be argued in contradiction to this that an +action in support of Finland does not justify any occupation of +Norwegian territory. Moreover, the documents show that it was not only a +question of altruistic measures in favor of Finland. During the +inter-Allied military conferences on 31 January and 1 February, which +preceded the meeting of the Supreme Council on 5 February, the question +of direct help for Finland was relegated by the British to second place; +they showed themselves to be determined supporters of an enterprise +against the mines of northern Sweden. This is confirmed by General +Gamelin in a note of 10 March 1940 (Document Raeder-79), and he adds +that this opinion obtained the majority vote in the Supreme Council and +that preparations for the Scandinavian expedition should be started +immediately. + +And so it came about that the Franco-British fighting forces had been +ready for transportation since the first days of March; according to +Gamelin, the leadership of the proposed operations in Scandinavia was in +the hands of the British High Command. Gamelin adds finally that the +Scandinavian plans must be resolutely pursued further in order to save +Finland—I quote, “or at least to lay hands on the Swedish ore and the +northern harbors.” + +Lord Halifax informed the Norwegian Minister on 7 February that Britain +wished to obtain certain bases on the Norwegian coast in order to stop +German transports of ore from Narvik (Document Raeder-97). By +mid-February, British and French General Staff officers were, in +agreement with the Norwegian authorities, inspecting landing places +(Document Raeder-97). According to a report by the German Legation in +Stockholm, dated 16 February 1940, British intentions in this respect +were to land troops simultaneously at Bergen, Trondheim, and Narvik. On +21 February 1940 Daladier communicated to the French Ambassador in +London, Corbin, that the occupation of the most important Norwegian +ports and the landing of the first body of the Allied fighting forces +would give Norway and Sweden a feeling of security; and he goes on to +say that this operation must be planned and executed at shortest notice, +“independently of Finland’s call for assistance.” In the event of this +_démarche_ meeting with refusal by Norway, which was likely, the British +Government was to take note of the Norwegian attitude and immediately +seize control of the bases it needed for the safeguarding of its +interests, doing so in the form of a “surprise operation.” Whether +Sweden would refuse passage through to Finland did not appear important; +what is being emphasized is rather—and I quote: + + “... the advantage of having secured a dominating position + against Germany in the North, interrupted the sea transport of + Swedish ore, and brought the Swedish ore districts within range + of our aviation” (Documents Raeder-77 and 80). + +On 27 February 1940, Churchill declared in the House of Commons that he +was “tired of considering the rights of neutrals” (Document Raeder-97). + +It is interesting to note that unanimity was achieved in the sixth +session of the Supreme Council on 28 March 1940—I quote: + + “Every endeavor on the part of the Soviet Government to obtain + from Norway a position on the Atlantic coast runs counter to the + vital interests of the Allies and results in appropriate + counteraction” (Document Raeder-83). + +The view thereby adopted by the Supreme Council with reference to the +vital interests of the Allies coincides exactly with the legitimate +notions of the “right of self-defense” as presented by me and is in +complete contradiction to the interpretation of international law +propounded by the Prosecution. + +The ultimate execution of the operation in Norway, that is, the landing +and the construction of bases, was decided on 28 March 1940 between the +authoritative British and French offices. This date was indicated at a +session of the French War Council by the French Prime Minister (Document +Raeder-59); and General Gamelin added that he had, on 29 March, +impressed upon General Ironside the necessity of having everything ready +for a swift occupation of the Norwegian ports. He said he had also +informed Mr. Churchill to the same effect on the occasion of a visit to +Paris. + +One day later, 30 March, Churchill declared on the radio—I quote, “It +would not be just if, in a life-and-death struggle, the Western Powers +adhered to legal agreements” (Document Raeder-97). + +On 2 April 1940 at 1912 hours, London notified Paris by telegram that +the first transport was “to sail on J. 1. day,” and that J. 1. day was +in principle 5 April (Document Raeder-85). On 5 April, Earl de la Warr +stated that neither Germany nor the neutrals could be certain that +“England would allow her hands to be tied behind her back in complying +with the letter of the law” (Document Raeder-97). + +The British Minister of Labor, Ernest Brown, on 6 April 1940 declared +that neither Germany nor the neutrals could count on “the Western +Powers’ adhering to the letter of international law” (Document +Raeder-97). + +On the same day—this was one day after the laying of mines by British +combat forces in Norwegian territorial waters—a secret British +operational order was given “concerning preparations for the occupation +of the northern Swedish ore field from Narvik” (Document Raeder-88). + +In this order it was specified that the mission of the “Avon” Force +consisted first of all in “securing the port of Narvik and the railway +to the Swedish border.” It was added that it was the intention of the +commander “to advance into Sweden and to occupy the Gallivare ore fields +and important points of that territory as soon as an opportunity +occurs,” a formulation strikingly reminiscent of the words in the +Prosecution Document L-79, “to attack Poland at the first suitable +opportunity.” + +The original plan of dispatching the first transport to Norway on 5 +April was changed; for on the evening of 5 April the British High +Command informed the Commander-in-Chief of the French Navy that—I +quote: + + “... the first British convoy could not depart before 8 April + which with respect to the time schedule established would mean + that the first French contingent would leave its embarkation + port on 16 April” (Document Raeder-91). + +To complete the story it may be mentioned that the Norwegian operation +was designated by the Allies by the camouflage name of “Stratford Plan,” +while the German Norwegian operation was referred to by the camouflage +name of “Weser Exercise” (Weserübung) (Document Raeder-98). + +All these facts go to show that, since the autumn of 1939, preparations +for possible action in Norway were made by studying landing +possibilities, _et cetera_. As from January and February 1940 the danger +of an occupation of bases in Norway by the Allies was imminent. In March +1940 the execution of the scheme was ultimately decided upon and the +departure of the first convoy was scheduled for 5 April. Simultaneously, +mine-laying was carried out in the Norwegian territorial waters and +troops were at the same time concentrated in British and French ports +for the Norwegian operation. Thus factual evidence of imminent +neutrality violations existed from the point of view of international +law; and neutrality violations had indeed been already committed to a +certain extent, as by mine-laying. This was the point where Germany, in +accordance with the international concept of the right of self-defense, +was entitled to resort to equivalent countermeasures, that is, to occupy +Norway in order to prevent the impending occupation by other belligerent +states. It was, in fact, as was shown later, high time; for Germany +forestalled the Allies only because the British High Command had +postponed the departure of the first convoy, originally scheduled for 5 +April. The German operation in Norway must therefore be considered as +legitimate according to the principles of international law. + +I have the firm conviction that the High Tribunal, in view of the +circumstances just presented in connection with existing international +law, will conclude that Admiral Raeder, with regard to the occupation of +Norway, acted from purely strategic points of view and in due +consideration of international legal standards, and accordingly will +acquit him of the charge made by the Prosecution. + +With reference to Norway, the Prosecution has moreover charged against +Raeder—and also against Dönitz—that a violation of international law +is involved in the fact that, according to an order dated 30 March 1940, +the Naval Forces were to fly the British ensign until the troops had +been landed (Documents C-151, Exhibit GB-91; C-115, Exhibit GB-90). + +This too is an error of the Prosecution as regards international law in +sea warfare. The Hague Regulations on Land Warfare do expressly forbid +the misuse of flags. In sea warfare, on the other hand, the answer to +this question according to prevailing international law is definitely +that, until hostilities begin, ships may sail with their own or with +enemy or neutral flags or with no flags at all. I take the liberty, in +this respect, of availing myself of Dr. Mosler’s juridical treatment of +the question in his opinion (Document Raeder-66), appearing under Item +7, and in particular of his references to legal literature on the +subject, according to which the use of a foreign flag is universally +considered as a legitimate ruse of war and is allowed and especially +condoned by British practice; this is in accordance with the historical +precedent when Nelson, in the Napoleonic wars, flew the French flag off +Barcelona to lure Spanish ships. This dispute is, however, superfluous +in the present case, because actually these orders to fly the British +flag were according to documentary evidence canceled on 8 April, that is +to say, prior to the execution of the Norway operation (Document +Raeder-89). + +In conclusion I wish to emphasize, with reference to the subject of +Norway, that after the occupation of Norway Raeder and the German Navy +did everything they could to give a friendly character to the relations +with Norway, to treat the country and the people decently during the +occupation, and to spare them every unnecessary burden. Raeder and the +commanding admiral in Norway, Admiral Böhm, moreover endeavored to +conclude a peace with Norway guaranteeing Norwegian national interests. +Their efforts were frustrated through the creation by Hitler and Himmler +of a so-called civil administration under Reich Commissioner Terboven +which, unlike the Armed Forces, was linked with the Party, the SS, SD, +and Gestapo (Documents Number Raeder-107 and 129). As confirmed by Böhm +in his affidavit, Raeder repeatedly intervened with Hitler in favor of +treating the Norwegian people well and for an early conclusion of peace +and, together with Böhm, proceeded with the utmost vigor against +Terboven. Here again, the tragic fact is that the Armed Forces, despite +its utmost efforts, was neither able to oppose Hitler’s dictatorial +methods nor the dictatorial methods employed, with Hitler’s knowledge, +by such a mediocre Reich Commissioner as Terboven. The Norwegian people +who had to suffer under the occupation know—and this is the only +gratification for Raeder—that the Navy was not the cause of these +sufferings. On the other hand, it is interesting to know that the +differences which cropped up between Hitler and Raeder with reference to +Norway are precisely among the chief motives which ultimately caused +Raeder to insist upon his resignation in September 1942. Other motives +were that Raeder also had differences with Hitler over France, because +here again Raeder urged the conclusion of peace, while Hitler, with his +extreme nature, was opposed to conciliatory steps of that kind in +occupied territories. Raeder also had differences with Hitler regarding +Russia, because he was in favor of observing the German-Russian treaty, +and declared himself opposed to breaking the Treaty and going to war +with Russia. + +THE PRESIDENT: We will adjourn now. + + [_A recess was taken._] + +DR. SIEMERS: I now come to the charge of the Prosecution with regard to +a war of aggression against Russia. The charge of the Prosecution on +this subject cannot be very well understood. Land warfare only was +concerned, so that the Navy did not have to make any preparations, with +the exception of a few in the Baltic Sea. The Prosecution itself has +furthermore stated that Raeder had been opposed to the war against +Russia. The only thing which might be left of the charge of the +Prosecution is its claim that Raeder had fundamentally been in favor of +the war against Russia also and had only been opposed to Hitler with +regard to the time factor. With reference to Document Number C-170 the +Prosecution states that Raeder had only recommended the postponement of +the war against Russia until after the victory over Britain. In the +light of Document C-170 this actually might appear plausible. In +reality, however, the case is different, and the true state of affairs +has been cleared up by the detailed presentation of evidence. The +witness Admiral Schulte-Mönting has clearly stated, without being +contradicted in cross-examination, that Raeder not only raised +objections with regard to the time but that he argued with Hitler about +a campaign against Russia and did so for moral reasons and reasons of +international law, because he was of the opinion that the Non-Aggression +Pact with Russia as well as the trade agreement should be observed under +all circumstances. The Navy was especially interested in deliveries from +Russia and always tried to observe the treaties strictly. Besides this +basic principle of observing treaties, that is, besides this general +reason, Raeder was of the opinion that a war against Russia would also +be wrong from the strategic standpoint. His own testimony and that of +Schulte-Mönting show that in September, November, and December 1940 +Raeder tried again and again to dissuade Hitler from contemplating a war +against Russia. It is correct that in Document C-170 only the strategic +justification for his opposition has been recorded. However, this is not +at all surprising because in the papers of the Naval Operations Staff +naturally only justifications were recorded which were of +naval-technical and strategic importance, but not political reasons. + +I have already shown that as a general principle Hitler did not permit +Raeder, as Commander-in-Chief of the Navy, to intervene in questions +concerning foreign policy, that is to say, in things which did not +belong in his department. If Raeder did on occasion undertake this +contrary to the will of Hitler in cases of special importance, then he +could do so only privately, and was then unable to record these +conversations in the War Diary. However, he always told everything to +his Chief of Staff as his closest confidant. As a result Schulte-Mönting +could absolutely confirm that Raeder in this case opposed Hitler because +of misgivings with regard to morality and international law, and +furthermore also employed strategic reasons in the hope of thus being +able to bring more influence to bear on Hitler. Schulte-Mönting even +stated—just like Raeder—that in November the latter had gained the +impression, after a discussion, that he had dissuaded Hitler from his +plans. I believe that this has clarified the matter, and only the tragic +fact remains that Hitler paid just as little attention to Raeder’s +political objections with regard to Russia as with regard to Norway and +France. + +A similar situation obtains with regard to the charge of the Prosecution +referring to the war of aggression against the United States and the +violation of the neutrality of Brazil. Both of these charges are +sufficiently refuted within the framework of the evidence, so that I am +only going to discuss them very briefly. + +According to the statement of the Prosecution, Raeder somehow +collaborated in the plan to induce Japan to attack the United States. As +a matter of fact no naval strategic conferences were held between Japan +and Raeder. Raeder always held the conviction that a war against the +United States must be avoided just as much as a war against Russia. This +attitude is understandable seeing that he had always held the opinion +that Hitler should under no circumstances wage a war against Britain. +Since the war against Britain had now come about, it was Raeder’s duty +as Commander-in-Chief of the Navy to use all his strength to fight +successfully against Britain. Raeder knew the limitations of the +fighting capacity of the Navy; and it was, therefore, quite out of the +question that he should have collaborated in an extension of the naval +war, considering, as he did, that the conduct of a war against Britain +was already a too difficult task. Document C-152 submitted by the +Prosecution therefore mentions only a proposition that Japan should +attack Singapore and is based on the assumption that the United States +should be kept out of the war. This suggestion made to Hitler that Japan +should attack Singapore was correct in every respect. After all, we were +at war with England, and Raeder was forced to try to concentrate all his +forces against that country. He was thus justified in suggesting that +Japan—as Germany’s ally—should attack England. Moreover this, the only +discussion by Raeder, was not held until 18 March 1941, while Hitler had +already in his Directive Number 24 of 5 March 1941 established the +guiding principle that Japan must attack Singapore, which he considered +a key position of Britain (Document C-175). + +I should like to interpose one sentence here. It can be seen from the +report by General Marshall that no common plan had been found to exist +between Germany and Japan. + +As Schulte-Mönting has affirmed, Raeder was just as surprised by the +sudden attack by Japan on Pearl Harbor as every other German. The +attempt of the Prosecution to discredit this statement during the +cross-examination of Schulte-Mönting by introducing a telegram from the +naval attaché in Tokyo to Berlin, dated 6 December 1941 (Document +D-872), failed. In the first place Raeder probably only received this +telegram after the Japanese attack on Pearl Harbor on 7 December had +already started; and besides, Pearl Harbor is not mentioned at all in +the telegram. + +The charge of the Prosecution with regard to Brazil has been refuted +just as effectively because, after my statements during the hearing of +evidence, the Prosecution did not revert to this point in any of the +cross-examinations of Raeder, Schulte-Mönting, and Wagner. The charge +was that, according to Jodl’s diary, the Naval Operations Staff +authorized and approved the use of arms against Brazilian warships and +merchant vessels fully 2 months before the outbreak of war between +Germany and Brazil (Document 1807-PS). + +Apart from the testimony of witnesses, this case is refuted by +documents, namely, the complete excerpt from Jodl’s diary which I +submitted as Exhibit Number Raeder-115, as well as by Documents Number +Raeder-116 to 118. These documents reveal that Brazil had violated the +rules of neutrality by permitting the United States to make use of +Brazilian airfields as a base for attacks on German and Italian U-boats. +The Brazilian Air Ministry had furthermore officially announced that +attacks had been made by the Brazilian Air Force. Considering such +conduct, which is against all the rules of neutrality, the demand of the +Naval Operations Staff for armed action against Brazilian vessels is +justified. So here again the Prosecution failed to prove Raeder to have +committed a crime or even a violation of international law. + +The Prosecution has very painstakingly submitted an exceedingly large +amount of material, and the wealth of detail called for great care in +the submission of evidence for the Defense. I have endeavored to deal +with all the charges in the submission of evidence or in my final plea, +and have made efforts to show as clearly as possible that none of them, +partly on factual, partly on legal grounds, comply with the requirements +of a criminal case within the meaning of this Charter. Insofar as I have +not, in spite of my desire for great exactitude, dealt with certain +documents, it was because they seemed to me of small importance and in +any case of no importance in criminal law; for instance, the many cases +in which Raeder was only mentioned because—without officially taking +any part—he received a copy of the documents for routine reasons. It +would have been tedious to go into such recurrent cases, even if the +Prosecution reiterated these formal indications, so that one was often +tempted to recall the saying of Napoleon that repetition is that turn of +speech which acts as the best evidence. + +I further believe that in my final plea for Admiral Raeder I may forego +argumentation regarding genuine war crimes, the crimes against humanity, +since I am unable to establish any connection between these and Raeder +from the material submitted by the Prosecution. Also no particular +charge is made against Raeder in this connection, with the exception of +the two cases connected with the Commando Order, namely, the shooting of +two soldiers in Bordeaux and the shooting of the British soldier Evans, +who was made a prisoner by the SD on the Swedish border after he had +previously participated in the midget submarine attack on the _Tirpitz_. +Thus far the charge has been refuted by testimony insofar as it concerns +the Navy. Both cases did not come, or came only later, to the knowledge +of the Naval Operations Staff—just before Raeder’s departure. In both +cases action was taken on the basis of the Commando Order by Hitler +himself or by the SD without the knowledge and will of the Naval +Operations Staff; and what is most important, in both cases the +documents of the Prosecution showed that these soldiers were in civilian +clothes and, therefore, were not entitled to the protection of the +Geneva Convention (Document Number D-864, Exhibit GB-457 and Document +UK-57, Exhibit GB-164). + +All the other criminal facts which the Prosecution submitted, especially +applying to the East, I need not deal with, as Raeder did not +participate in them. I hope that here also I shall have the approval of +the Court in mentioning the handling of the Katyn case, in which the +Court pointed out that Raeder was not involved and therefore refused to +allow me to act as defense counsel in this connection; from this I draw +the legal conclusion that Raeder cannot even by implication through the +conspiracy be considered as burdened with these criminal facts, since he +did not know of these events and had nothing to do with them. + +The case for the Prosecution is founded on a desire to see its basic +theory accepted and acknowledged, namely, the conception that so many +crimes cannot have emanated from the will of a single individual but +rather that they result from a conspiracy, a plot, involving many +persons. These conspirators could logically, in the first place, only +have been Hitler’s own collaborators, that is to say, the real National +Socialists. Since however, Hitler wished to achieve and did achieve +concrete results of military and economic import, something peculiar +transpired: There were no specialists among the National Socialists for +these tasks. Most of the National Socialist collaborators had not +previously followed a trade providing technical education. Hitler, +therefore, despite his desire to have only National Socialists around +him, took on as key people in particular fields specialists who were not +National Socialists, such as for instance Neurath for politics, and +Schacht for economics; and for military tasks, Fritsch for the Army and +Raeder for the Navy. The Prosecution followed this process from the +angle of its conspiracy theory, without paying attention to the fact +that these people, not being National Socialists, could in no way be +counted among the conspirators and without taking into account that +Hitler used these non-National Socialists only as technicians in a +well-defined field, and only as long as it seemed absolutely necessary +to him; therefore he agreed to the departure of these men, who were +essentially not in sympathy with him, as soon as the differences between +them seemed unbridgeable, which was bound to happen sooner or later with +each of them, depending on the particular field involved. + +By this all-embracing conception of the idea of conspiracy and by this +extension of the Prosecution’s fight to non-National Socialists, the +Prosecution abandoned the basic concept formerly propagated abroad, +namely, that of fighting National Socialism but not against the whole of +Germany—two ideas which at no time and in no place have been really +identical, as the Prosecution now tries to make out. I do believe that +thereby the Prosecution is also going back on President Roosevelt’s +basic idea. + +Yet another factual and legal point of view has not been taken into +consideration by the Prosecution. I mean the concept of the division of +competence under state law, that is to say the subdivision into +individual departments. This division of competence, founded on the idea +of division of labor, is essentially separative in character; it divides +the field of work according to local, functional, and technical points +of view. Thereby it defines positively the limits within which each +division is to become active, and at the same time it defines negatively +the boundaries of such activity by specifying which problems no longer +concern the agencies in question, that is to say, where they must not +exercise any official activity. + +In a democracy additional contacts exist by virtue of general Cabinet +meetings and through the Prime Minister, the Reich President, or the +Reich Chancellor, as the case may be. In a dictatorship it is different, +particularly if the dictator, as was the case with Hitler in the +National Socialist State, exploits the segregation of the various +departments with extreme skill and sees to it that they are kept as +isolated as possible, with the result that all power of decision rests +finally with him as the dictator, who may even play off one department +against the other. The strict partitioning into governmental departments +as carried out in the National Socialist State in itself refutes the +concept of conspiracy and renders it extremely difficult for the +individual to exceed the limits of his own department in any manner. + +This significance may be illustrated by the following example: The +maintenance of political relations with other states, the contracting or +cancellation of agreements or alliances with other states, the +declaration of war and conclusion of peace, are matters within the +jurisdiction of the authority directing foreign affairs; but they are +not within the jurisdiction of the agencies concerned with domestic +tasks, such as for instance the Reich Finance Administration, Justice, +or the Military. + +Thus, since the decision concerning war and peace is not a matter for +the military, the military has to accept the decisions made by the +political leadership, decisions which have a binding material effect on +the military authorities. The military commander must assume for his +department the consequences resulting from the decision. As soon as war +is declared, the military forces must fight. They do not bear any +responsibility for the war, since they were not able to take part in the +decision that war should be declared. Consequently, for an army the +concept of war of aggression exists in the strategic sense only. Aside +from that, any war it may be obliged to wage is, to the army, simply +war, regardless of how it may be qualified legally (Article 45 of the +Reich Constitution). + +Responsibility, from the point of view of state law and criminal law, is +in proportion to the extent of jurisdiction. Therefore, if the +commander-in-chief of a branch of the Armed Forces is responsible solely +for the waging of war, though not for the causes leading to war, his +responsibility in respect to a strategic plan must be confined to the +plan as such, but not to the possible origin of the war for which the +strategic plan was worked out. + +This officially and legally important segregation of governmental +departments and the distribution of authority was, in the interest of +strengthening his own power in a particularly emphatic manner, carried +out by Hitler in many domains, such as for instance the creation of the +“Delegate for the Four Year Plan,” whose field of work should have +belonged to the Ministry of Economics; the creation of Reich +Commissioners in the occupied territories, whose activity really should +have come under military administration; and, finally, a fact of +interest in the Raeder case, the very precise delimitation of the three +branches of the Armed Forces and the elimination of the Reich Defense +Minister or Minister of War who held the three branches of the Armed +Forces together and unified them. The greater the number of governmental +departments became, the stronger Hitler became as dictator, being the +only person with authority over all the innumerable agencies. But along +with this the official as well as the legal responsibility for strategic +plans on the part of any one individual department decreased; in this +instance, that of the Navy. + +Consequently, the commander-in-chief of a branch of the Armed Forces, +for instance the Navy, can in case of strategic planning only be +responsible for the planning of naval strategy; he is not afforded an +over-all picture of the total plan. The total plan was discussed +nowhere; politically and militarily it was in Hitler’s hands +exclusively, because he alone was the center where all threads, all +activities of the individual departments joined. + +May I add a sentence here and remind you that, for instance, in the case +of the Norway action even Göring was not informed until March 1940, +which is one proof of the extreme segregation of the individual +departments within the Armed Forces. In addition, purely strategic +planning as such cannot be criminal, because it is customary in every +country and because in every country the military commander of a branch +of the Armed Forces does not and cannot know to what end the political +leadership will use the plan prepared by him, whether for a war of +aggression or a defensive war. + +The documents submitted in my document books prove convincingly that the +military agencies in Allied countries as well as in Germany worked out +strategic plans in the same manner, for the same areas, and at the same +times, namely, in regard to Norway, Belgium (Documents Number Raeder-33 +and 34), Holland, Greece, Romania; moreover, the Allied plans included +the destruction of the Romanian oil fields and especially of the oil +sources in the Caucasus (Document Number Ribbentrop-221 and Number +Raeder-41). Particularly the plans concerning the Caucasus on the part +of the Supreme Council, that is, the combined British and French General +Staff, show the correctness of the statements. The Supreme Council would +certainly refuse to be made politically responsible for these strategic +plans, although the Soviet Union was still neutral at the time and the +execution of the plans was to strike a blow not only at an enemy +country, Germany, but also at a neutral, the Soviet Union, as the +documents show. + +The similarity of the documents concerning such plans is absolutely +convincing and shows a strong parallel trend. May I point in this +connection to statements I made here on occasion of the comprehensive +discussion regarding the relevance and admissibility of the documents +submitted by me; may I point, in addition, to Document Number +Raeder-130, the letter of the Foreign Office, in which submission of the +British Admiralty files is refused but in which the plans in regard to +Norway and the whole of Scandinavia are admitted, with the remark that +the plan was not put into effect, which fact was due only to Germany’s +having forestalled the execution of the plan. + +Anyone is entitled to be a pacifist and, therefore, basically opposed to +the military. However, one must be consistent and take a stand not only +against German military force but against any military force. One may +condemn the fact that the military, as the operational authority, +prepares military plans; and one may for the future insist that such +planning shall be punishable. But in that case not only German military +planning, but foreign military planning also must be punishable. + +These points show that the Prosecution misjudges both actual and legal +conditions in desiring to make Raeder responsible for political +decisions, although he had nothing to do with them but always worked +simply as a soldier. Just as there could be no suggestion 130 years ago +of bringing before a court an admiral of Napoleon, the dictator, it is +impossible now to condemn an admiral of Hitler, the dictator. With +dictators, in particular—and this the Prosecution overlooks—not only +the power and the influence of a military commander diminishes, but his +responsibility must also diminish to the same extent, for the dictator +will have seized all power and with it all responsibility—especially if +he is possessed of such an extraordinary will and such immense power as +Hitler. The French prosecutor stated literally and very aptly on 7 +February 1946 before this Tribunal: “Hitler was actually the incarnation +of all will.” + +The resulting strength and power has not been sufficiently appreciated +by the Prosecution, and has certainly not been taken into consideration +in the presentation of the facts and the legal conclusions. How great +this power is, Gustave le Bon shows in his famous book _Psychology of +the Masses_ (published by Alfred Kröner) in the chapter entitled, “The +Leaders of the Masses.” I quote from it: + + “Within the class of leaders quite a strict division can be + made. The energetic people with strong wills but without + perseverance belong to the one kind; the people with a strong, + persevering will belong to the other kind, which is much + rarer.... The second class, those with a persevering will, + exercise a much greater influence in spite of their less + brilliant appearance.” + +Hitler belongs to this second class of leaders, who, in accordance with +this quotation, exercised an immense influence while, on the other hand, +he was definitely unimpressive in his brown uniform. + +Gustave le Bon continues: + + “The unyielding will which they possess is an exceedingly rare + and exceedingly powerful attribute which subdues everything. One + does not always realize what a strong and persistent will can + achieve. Nothing can resist it, neither nature, nor gods, nor + men.” + +These words make it clear enough that Raeder could not resist either. + +Accordingly, only the question remains: Is it ever a soldier’s duty to +revolt—to resort to open mutiny? This question will be denied by every +commander all over the world and likewise by every other person with a +sole exception, namely, if it concerns the case of a dictator commanding +the commission of a crime, the criminality of which is recognized by the +military commander himself. Accordingly Raeder could be made responsible +for a military crime only, but not for a political one, because for the +political crime the dictator himself must answer. When the Prosecution +came to the opposite conclusion regarding Raeder, this was due—as I +have already emphasized in my introduction—only to their misconception +of the actual and juridical facts; they regarded Raeder as politician +and soldier. But he was a soldier only. He lived for the Navy alone, for +the welfare of the Navy, for which he is now equally prepared to bear +responsibility to the full extent. He led the Navy along uniform lines +and, aided by his officer-corps, taught it those decent views and that +form of chivalrous fighting which humanity expects of a soldier. It must +not be allowed to happen that, as a result of the deeds of a Hitler and +his National Socialism, the officers and soldiers of this Navy be +defamed by hearing their highest-ranking officer declared a criminal. +From a historical viewpoint Raeder may be guilty, because he, like many +others within the country and abroad, did not recognize or see through +Hitler and did not have the strength to resist the dynamic strength of a +Hitler; but such an omission is no crime. What Raeder did or left undone +in his life occurred in the belief that he was acting correctly and that +as a dutiful soldier he had to act in such a way. + +Raeder is a highly esteemed officer who is no criminal; and he cannot be +a criminal, since all his life he has lived honorably and as a +Christian. A man who believes in God does not commit crimes, and a +soldier who believes in God is not a war criminal. + +I therefore ask the High Tribunal to acquit Admiral Dr. Erich Raeder on +all points of the Indictment. + +PRESIDENT: I call on Dr. Sauter for the Defendant Von Schirach. + +DR. SAUTER: Gentlemen of the Tribunal, Baldur von Schirach, who at that +time was Reich Youth Leader, in 1936 welcomed the guests to the Olympic +Games in Berlin with the following words: + + “Youth throws a bridge across all frontiers and seas! I call + upon the Youth of the World and through them, upon Peace!” + +And Baldur von Schirach, then Gauleiter of Vienna, said to Hitler in +1940: “Vienna cannot be conquered with bayonets, but only with music.” + +Those two utterances are characteristic of the nature of this defendant. +It is the task of the Defense to examine the evidence produced in this +Trial for the purpose of ascertaining whether the same Baldur von +Schirach, who expressed such thoughts, really committed those crimes +against law and humanity with which he is charged by the Prosecution. + +Schirach is the youngest defendant here. He is also, of all the +defendants, the one who was by far the youngest when joining the Party, +which he did when he was not yet 18. Those facts in themselves are +perhaps of some significance in judging his case. When still at school +he came under the spell of rising National Socialism; he was +particularly attracted by the Socialist idea, which had already in his +country school recognized no difference between the sons of fathers of +different classes and professions; those boys around Schirach saw in the +popular movement of the twenties in Germany a promise of the resurgence +of our fatherland from the aftermath of the lost Great War into a happy +future; and fate willed it that as early as 1925, when he was seventeen, +Schirach came into personal contact with Hitler in Weimar, Goethe’s +home. Hitler’s personality made a fascinating impression on young +Schirach, as he himself admitted; the program for the National Community +(Volksgemeinschaft), which Hitler had evolved at that time, met with +Schirach’s wholehearted enthusiasm, because he thought he saw reproduced +therein on a full-size scale that which he had personally experienced in +a small way in the comradeship of the country school and in his youth +organization. To him and his comrades Hitler appeared as the man who +would open for the younger generation the road into the future; of him +this younger generation had hopes for its prospects of work, its +prospects of a secure existence, its prospects of a happy life. Thus the +young man became a convinced National Socialist; this fact was the +result of the environment in which he had spent his youth and which +formed a soil only too fertile for the growth of that ideology which +young Schirach embraced because at that period he held it to be the +right one. This environment of his childhood and a vast amount of +one-sided political literature, which the young man devoured in his +thirst for knowledge, made of him, while still an inexperienced youth, +also an anti-Semite. He certainly did not become an anti-Semite in the +sense of those fanatics who ultimately did not shrink even from acts of +violence and pogroms, of those who finally created an Auschwitz and +murdered millions of Jews; but an anti-Semite in the moderate sense, who +would merely curb Jewish influence in the government of the state and in +cultural life but for the rest would leave untouched the freedom and +rights of Jewish fellow citizens and who never thought of exterminating +the Jewish people. At least that is the conception of Hitler’s +anti-Semitism which young Schirach evolved during those years. + +That this was really Schirach’s opinion is also substantiated by the +statement which Schirach made here on the morning of 24 May 1946, when +he described without reservation the crimes committed by Hitler as a +shameful episode in German history, as a crime which fills every German +with shame; that statement in which he openly states that Auschwitz must +signify the end of any and every racial and anti-Semitic policy. That +statement here in this courtroom came from the bottom of the heart of +the Defendant Schirach; it was the result of the terrible disclosures +which this Trial brought to him also, and Schirach made this statement +here openly before the public in order to bring back German youth from a +wrong path to the road of justice and tolerance. + +Gentlemen, I would now like to bring to your attention the more +important accusations which have been raised against Schirach, and the +major results which the evidence has produced in the various points. The +Defendant Schirach is first of all accused of the fact that before the +seizure of power, that is, before the year 1933, he actively promoted +the National Socialist Party and the youth organization affiliated with +it and that he thereby contributed to the rise of the Party to power. He +had been, as stated in the trial brief, a close and abject follower of +Hitler; he had stood in blind loyalty to Hitler and the latter’s +National Socialist world of thinking; and he had, as leader of the +student’s league, led the students ideologically and politically to +National Socialism and won them over to it. + +All this, if Your Honors please, is not denied by Schirach in any +manner. He has done what he is being accused of in this respect; this he +confesses openly, and for this he naturally takes responsibility. The +only thing which he denies with regard to this, and all the more +emphatically with regard to the later period, is the accusation that he +participated in a conspiracy. Schirach himself pointed out that the +Leadership Principle and dictatorship in their character and their +theory are absolutely incompatible with the idea of a conspiracy, and a +conspiracy appears to him a logical impossibility if many millions of +members are to be included and when its existence and aims lie exposed +before the country concerned as well as before the world. We furthermore +know from the results of this Trial that Hitler, aside from Bormann and +Himmler, did not have a single friend or adviser with whom he discussed +his plans and aims; on the contrary he carried the Leadership Principle +to the furthest extreme. He dispensed with all advisory meetings or +discussions which might have affected his decisions in any way, reaching +his decisions all by himself without even listening to the opinion of +those closest to him. For him it was a matter of orders on his own part, +and unconditional obedience on that of the others. I wish to refrain +from further statements about that chapter, but that is what the +“conspiracy” really looked like; and all of us who have witnessed this +Trial would never have felt this ultra-radical application of the +Leadership Principle to be possible had not all the defendants and all +the witnesses familiar with the facts, in complete agreement and without +a single exception, presented the same picture to us over and over +again. + +Now Schirach is not denying at all that already in his very early years +he came completely under the influence of Hitler, that he placed himself +with his whole young personality at the service of these ideas, and that +at the time, as stated quite correctly in the Indictment, he was devoted +to Hitler with unconditional loyalty. + +If this was a crime on the part of young Schirach, a crime which +millions of older, more experienced, mature Germans have committed with +him, then you, as his judges, may condemn him for this if our code of +law furnishes a legal basis for it. That would be but a further +disappointment in addition to the many others which he has been +experiencing for years. Schirach knows today that he gave loyal support +unto the end to a man who did not deserve it; and he also knows today +that the ideas, about which he was enthusiastic in his young years and +for which he sacrificed himself, led in practice to ends of which he +himself had never dreamed. + +But even the Schirach of today, purged by many bitter experiences, +cannot see any criminal act in the activity of his younger years which +he carried out in good faith, together with millions of other Germans, +for Hitler and his Party. For the Party at that time appeared quite +legal to him; Schirach never had any doubt that it also came into power +by legal means. The seizure of power by the Party, the appointment of +Hitler as Reich Chancellor by Reich President Von Hindenburg, the +winning of the majority of the people for the Party by repeated +elections, all this confirmed to young Schirach again and again the +legality of the movement he had joined. If today he were to be punished +because he acknowledged as his Führer this same Hitler whom millions of +Germans and all the countries of the world recognized as legal head of +the State, Schirach would never be able to acknowledge such a decision +as being just. In spite of the severe judgment which he himself has +pronounced in this courtroom on Hitler according to his personal +conviction, he would consider himself a victim of his political +convictions if he were to be sentenced because, as a young enthusiastic +man, he joined the National Socialist Party and collaborated in its +construction and seizure of power. At the time he did not look upon that +as a crime but from his standpoint considered it his patriotic duty. + +The second and by far more important accusation which has been raised +against the Defendant Von Schirach is to the effect that he, as Reich +Youth Leader in the years 1932 to 1940, to quote the Indictment +literally, “poisoned the thought of youth with Nazi ideology and +especially trained it for aggressive war.” Schirach has always contested +this claim emphatically, and this claim has not been substantiated by +the results of the evidence either. + +The law on the Hitler Youth of 1936 described Schirach’s task as Reich +Youth Leader as being “to educate youth, outside the parental home and +outside school, physically, intellectually, and morally for service to +the people and to the national community in the spirit of National +Socialism through the Hitler Youth movement and its leader,” that is, +the Defendant Von Schirach. This was the program. This program is +repeated word for word in the enactment decree of 1939, which was +postponed for so long—3 years—because Schirach did not want to +introduce compulsory membership until the movement already practically +included the entire German youth on the basis of voluntary membership, +so that future joining by compulsion would exist on paper only. + +The Hitler Youth program, as it was formulated by Schirach in his +speeches and writings—and no other program of the Hitler Youth +exists—does not contain a single word which would point toward military +education of youth, much less an education in aggressive warfare; nor +does in practice the education of youth, in Schirach’s opinion, in any +way give evidence of a military education of German youth for such a +purpose. In that respect the point was stressed by the Prosecution that +the Hitler Youth movement was organized in various detachments and +divisions. That is true, although the designations listed by the +Prosecution are not correct and although they have not the slightest +reference to military formations. But in the last analysis every youth +movement the world over will show a classification into smaller or +larger units; each of these units naturally will also need a name and +some responsible leader. As in the other countries, so also in the +German Hitler Youth the leader of the unit was discernible by some sign +of his rank, be it a leader’s cord, stars, or other insignia of rank. +This naturally has nothing to do with the military character of youth +education. + +From personal familiarity with the practice in foreign countries +Schirach knows that foreign youth organizations, in Switzerland as well +as in France and other countries, have similar classifications and +similar insignia, although it never occurred to us so far to make that a +reason for considering such foreign youth organizations as military +associations. + +It was furthermore stressed that formations of male youth in Germany +were also given training in shooting. That is also correct but equally +proves very little, in the opinion of Schirach, because the shooting +instruction for the Hitler Youth organization took place, without +exception, with small-bore rifles, in other words, with a type of short, +light target rifle which is nowhere in the world considered as a +military weapon and which is not even mentioned in the enumeration of +military weapons in the Versailles Treaty. The Hitler Youth movement in +Germany did not possess a single military weapon, no infantry rifle or +machine gun, no power-driven airplane, no cannon or tank, throughout its +whole existence. After all, when speaking of military training, then +such training would primarily have had to take place with military +weapons such as are used in modern warfare. To be sure, as has been +established in the cross-examination of Schirach, in order to give added +importance to his office, a certain Dr. Stellrecht, the technical +adviser on shooting instruction in the leadership of the Reich Youth +movement attempted to ascribe a certain special importance to this +particular branch of youth training. Schirach, however, was able to show +without being refuted that for this very reason differences of opinion +arose between him and this technical adviser and that he therefore +finally dismissed Dr. Stellrecht because he, Schirach, opposed any +development which might have tended toward military training of youth. +In any case, this very Dr. Stellrecht, who was produced by the +Prosecution as a witness against Schirach, nevertheless for his part +admitted that “not a single boy in Germany was trained in handling +weapons of war” and that “not one boy was given a military weapon.” That +is, word for word, the testimony of Stellrecht. + +Also of importance in considering these questions is the fact that +Schirach, as a matter of principle, refused to permit young people to be +trained by active officers or former officers because he considered +these persons entirely unsuitable to educate young people in that spirit +which he envisaged as the goal of his activity. Moreover, neither +Schirach nor any of his closer associates were officers before the war; +and the same holds true for the overwhelming majority of the high or low +ranking HJ leaders subordinate to him. + +All these facts are firmly established by the testimony of the Defendant +Schirach himself and through depositions made by the witnesses +Lauterbacher, Gustav Hoepken, and Maria Hoepken during their +examination. For many years these witnesses were Schirach’s closest +collaborators; they are thoroughly familiar with his views and +principles and they have unanimously confirmed that it is entirely +incorrect to speak of a military or even premilitary training of the +Hitler Youth. + +At this point, Gentlemen, I should like to add one thing. I have just +mentioned, as a witness, the name Lauterbacher. The Prosecution, during +their cross-examination, made an attempt to impugn the credibility of +the witness Lauterbacher by asking him, during his interrogation on 27 +April 1946, how many people he had hanged publicly and furthermore by +charging that he had ordered four or five hundred prisoners from the +penitentiary in Hameln to be poisoned or shot. In this connection the +American prosecutor had submitted seven affidavits under Exhibit +USA-874, among them one by a certain Josef Krämer, who in fact made the +assertion in his affidavit that the witness Lauterbacher, who appeared +here for Schirach, in his function as Gauleiter of Hanover had given him +orders for the murder of the prisoners. + +During the Court’s session of 27 May 1946, I protested against the use +of that affidavit by Krämer and produced, Gentlemen, a newspaper article +according to which the witness Krämer, on 2 May 1946, had been sentenced +to 7 years’ imprisonment by a court of the 5th British Division. Several +days ago I submitted as evidence a report from the _Rhein-Neckar +Zeitung_ of 6 July 1946 which states that the witness Hartmann +Lauterbacher in the meantime had been acquitted by the Supreme British +Military Court in Hanover. From that it can be seen that the doubts +which the Prosecution cast upon the credibility of the witness +Lauterbacher and which they based on the affidavit of this Krämer were +unfounded. + +May I now continue in my presentation on Page 8. + +With reference to the premilitary training of the HJ it has also been +repeatedly emphasized in rebuttal that the Hitler Youth wore a uniform. +That is correct, but proves nothing, for the youth organizations of +other countries, too, are accustomed, as is generally known, to wear a +common costume, some sort of uniform, without anybody for this reason +terming them military or semimilitary organizations; and Schirach and +several of his associates have informed me that in many democratic +countries, which certainly do not contemplate war, much less a war of +aggression, male youth is trained in handling proper military weapons +and that every year contests are held in shooting with military rifles. + +Why was it that Schirach introduced a uniform for the Hitler Youth—and +indeed not only for the boys but also for the girls? We have heard the +answer to this from several witnesses. Schirach, I may quote here, saw +in the uniform of the boys and in the uniform costume of the girls the +“dress of socialism,” the “dress of comradeship.” Schirach wrote at that +time already that the child of the rich industrialist was to wear the +same clothes as the child of the miner, the son of the millionaire the +same clothes as the son of an unemployed man. The uniform of the Hitler +Youth was to be, as Schirach wrote in 1934 in his book _The Hitler +Youth_, the expression of an attitude which did not consider class and +property, but only effort and achievement. The uniform of the Hitler +Youth was for Schirach, as expressed further in this same book, “not the +sign of any militarism, but the symbol of the idea of the Hitler Youth, +namely, classless society,” in the spirit of the election slogan which +he gave the Hitler Youth in 1933: “Through Socialism to the Nation.” +Schirach remained faithful to the principle expressed in these +quotations as long as he was Youth Leader. Thus, in the official +publication of the Hitler Youth in 1937, he wrote—I quote word for +word: + + “The uniform is not the expression of a martial attitude but the + dress of comradeship; it overcomes class difference and + re-establishes social equality for the child of the most + insignificant laborer; the young generation in our new Germany + must be united in an inseparable community.” + +Schirach had this comradeship and this socialism in mind when, in 1934, +he describes in his book _The Hitler Youth_ how he conceived this +socialism; and I quote again, word for word: + + “Socialism does not mean taking the fruits of his work away from + one person in order to give everybody something produced by the + work of one individual. Everyone shall work, but everyone shall + also harvest the fruits of his work. Nor must one person be + allowed to get rich while thousands of others must suffer want + for his sake. Whoever exploits his workers and spoliates the + community in order to fill his cash box is an enemy of the + German people” (Document Schirach-55). + +That ends the quotation describing the attitude of Von Schirach at that +time. + +Schirach has pointed out again and again in his numerous writings, +articles, and speeches, which have been collected in the document book +and have been submitted to the Tribunal, that, to use his expression, he +did not desire any “pseudo-military drill,” which would only spoil the +joy of the young people in their movement. + +The training of the young people in small-bore shooting was in line with +the training in all sports activities and corresponded to the +inclination of the boys, in all countries, who are particularly +interested in the sport of shooting. But this training played a very +minor role in volume and importance by comparison with the greater aims +which Schirach pursued in the Hitler Youth movement, about which not +only Schirach but the other witnesses examined give as clear a testimony +as the writings and speeches of Von Schirach. These aims of the Hitler +Youth education shall be listed here briefly as they have been +demonstrated by the presentation of evidence; Schirach is naturally not +accused in connection with these other aims of the Hitler Youth +education, but one must nevertheless consider and evaluate them when +desiring to obtain a total picture of his personality, his activity, and +his plans. + +Apart from this education of youth in terms of comradeship and of +socialism in the sense of overcoming class distinction, Schirach had, as +he explained here, primarily four aims in mind: + +First the training of youth in the various types of sports, and in +connection therewith juvenile health supervision; this branch of youth +education took up a very large part of Hitler Youth activities, and the +fact that German youth obtained such an unexpected success at the +Olympic Games in 1936 was to a certain extent due to the activity of the +Hitler Youth leadership in co-operation with the Reich Sports Leader Von +Tschammer-Osten. + +Another aim was postgraduate training and advancement of working youth +and the improvement of the position of adolescent wage earners through +youth legislation, particularly by prohibiting night work, increasing +spare time, granting paid vacations, prohibiting child labor, raising +the protected age of adolescents, _et cetera_. Advanced vocational +training was promoted so successfully that finally more than a million +boys and girls entered for the annual occupational competitions, and +from year to year the average performance in each branch rose very +considerably. + +A third main aim of youth education was the promotion of love of nature, +far away from the dens of iniquity of large cities, through hiking trips +and in youth hostels. Thousands of youth homes and youth hostels were +built in the course of these years on Schirach’s initiative out of the +Hitler Youth movement’s own funds, in order to get the young people out +of the large cities with their temptations and vices and return them to +rural life to show them the beauties of the homeland and to afford a +vacation to even the poorest child. + +But Schirach concentrated his chief attention on the fourth goal of +youth education, namely, co-operation with the youth of other nations; +and this activity is a particularly suitable test for the question as to +whether one can accuse the Defendant Von Schirach of having taken part +in the planning of wars of aggression and of having committed crimes +against peace. Schirach has told us here on the witness stand that time +and again, both in summer and winter of every year, foreign youth groups +were the guests of German youth; and it is shown by the documents in Von +Schirach’s document book that, for instance, already in the year 1936 no +less than 200,000 foreign youths received overnight lodgings in German +youth hostels, and correspondingly year after year German youth +delegations went abroad, especially to England and France, in order to +enable young people to get acquainted with and respect one another. +Those very endeavors of Schirach’s, which would be absolutely +incompatible with any intention to prepare wars of aggression, received +unreserved recognition abroad before the war. In 1937 in one of the +special numbers of the Hitler Youth magazine _Wille und Macht_ dedicated +to this task of understanding, which was also published in French and +circulated very widely in France and which is quoted here only as an +example, the French Prime Minister Chautemps—I have the evidence in the +document book—declared his willingness, as head of the French +Government, to promote these peaceful meetings. + + “I wish”—he wrote—“that the young men of both nations could + live every year side by side by the thousands and in this way + learn to know, to understand, and to respect each other.” And + further: + + “Our two nations know that an understanding between them would + be one of the most valuable factors for world peace; therefore + it is the duty of all those on either side of the frontier who + have a clear view and human feeling to work for the + understanding and _rapprochement_ of both nations. But no one + could do it more sincerely and more enthusiastically than the + leaders of our wonderful youth, of French and German youth. If + they could manage to unite this youth, they would hold in their + hands the future of European and human culture” (Document + Schirach-110). + +The mayor of Versailles of that time wrote in the same spirit to +Schirach, ending his appeal in the monthly organ of the Hitler Youth +with the words: + + “The education of youth in this spirit is one of the most + important tasks of the politicians of both our countries” + (Document Schirach-111). + +The French Ambassador, François Poncet, gave credit to Schirach’s +efforts no less heartily in the same publication under the title “Youth +as a Bridge” and concluded his lengthy article with the words: + + “French participation enriches German soil. German influence + fertilizes the French spirit.... May this exchange develop + further. May also the generations which will at some time + benefit from it contribute to bringing the two halves of + Charlemagne’s empire closer and to create between them those + relations of mutual respect, harmony, and good comradeship for + which both nations are deeply longing, because their instinct + tells them that the welfare of European culture depends on it + and because they know for certain, when they look into + themselves, that they have many more reasons to respect and + admire than to hate each other” (Document Schirach-112). + +And Schirach himself answered in the next issue of his monthly +publication, which also appeared in French, with an enthusiastic article +under the title, “Salute to France!” In it he writes, for instance: + + “The _rapprochement_ of our two peoples is a European task of + such urgent necessity that youth has no time to lose in order to + work for its achievement.”—He then continues—“Youth is the + best ambassador in the world; it is disinterested, frank, and + without the eternal distrust of which diplomats can frequently + not be cured because, to a certain extent, it is their + professional disease. However, there must be no propaganda + intentions hidden behind youth exchange.”—And he concludes—“I + consider it now my task to bring about an exchange of views + between German and French youth, which must not, on the German + side, consist of nice statements from me, but of many personal + conversations of thousands of young Germans with just as many + young Frenchmen. One must believe in youth because they, above + all, can achieve a true understanding.” + +At the end Schirach calls attention to the fact that all higher youth +leaders of the German Hitler Youth movement had a short time previously +expressed their respect in the name of the young generation of Germany +to the French Unknown Warrior by placing a wreath under the Arc de +Triomphe, and he concludes with the words: + + “The dead of the Great War died while fulfilling their patriotic + duty and nobly devoting themselves to the ideal of liberty, and + Germans as well as French were always filled with respect for a + gallant foe. If the dead respected each other, then the living + should try to shake hands. If the returned combat veterans of + both nations could become comrades, why should the sons and + grandsons not become friends?” (Document Schirach-113.) + +These, Gentlemen of the Tribunal, are the words of the same Baldur von +Schirach whom the Prosecution tries to brand as a deliberate partner in +a Hitlerian conspiracy for war. The Prosecution wants to make a war +criminal out of this untiring prophet for international understanding +and peace, who is charged with having militarized youth and prepared it, +bodily and psychologically, for wars of aggression and of having worked +against peace. So far, the Prosecution has not been able to furnish +evidence to this effect. + +Schirach has written various doctrinal books for youth, which were held +against him in the trial brief; he has published a quantity of essays on +a vast variety of problems of youth education; his innumerable speeches +addressed to youth have been printed; his orders and instructions to +youth are available to you and the Prosecution in collected form. Yet it +must be concluded that among all these, which constitute his views +during the whole of the time when he was active as Reich Youth Leader, +not a single item is to be found in which he made inflammatory remarks +in favor of war or preached attacks against other countries. + +The Prosecution has stated in this very connection that he referred to +the “Lebensraum” in his book _The Hitler Youth_, which I have repeatedly +mentioned, and by so doing adopted as his own a slogan of Hitlerite +aggression policy. This claim is incorrect, for the whole book, _The +Hitler Youth_, does not, any more than every other speech and writing of +Schirach, contain this word at all. True, he has referred at two points +to “Eastern space” in his book, _The Hitler Youth_, published in 1936; +but he quite obviously did not in any way employ this term with +reference to Polish or Soviet-Russian territories but to the eastern +provinces of the former German Empire, that is to say, to territories +which formerly belonged to. Germany; they were known to be very thinly +populated and well suited for the settlement of excess German +population. + +Nowhere has Schirach, I would like to state in conclusion with regard to +this topic, at any time up to the outbreak of the second World War +expressed the idea that he might wish Germany to conquer foreign +territories; neither has he ever uttered the odious slogans of the +German “Master Race” or the “Sub-humanity” of other nations; on the +contrary, he was always in favor of preserving peace with the +neighboring nations and always advocated the peaceful settlement of any +conflicts that cropped up out of inevitable clashes of interests. +Gentlemen of the Tribunal, had Hitler possessed but a fraction of the +love of peace which his Youth Leader preached time and again, then +perhaps this war would have been spared us Germans and the whole world. + +PRESIDENT: We will adjourn now. + + [_The Tribunal adjourned until 18 July at 1000 hours._] + + + + + ONE HUNDRED + AND EIGHTY-FIRST DAY + Thursday, 18 July 1946 + + + _Morning Session_ + +MARSHAL: May it please the Tribunal, the Defendants Hess, Von +Ribbentrop, and Fritzsche are absent. + +DR. SAUTER: May it please the Tribunal, yesterday at the end of my +statement I dealt with the charge of the Prosecution that the Defendant +Von Schirach had trained and educated the youth of the Third Reich in a +military sense, that he had prepared them for the waging of aggressive +wars and had participated in a conspiracy against peace. Now I turn to a +further accusation which has been made by the Prosecution against +Defendant Von Schirach. + +Since the Prosecution could not prove that the Defendant Von Schirach +had ever promoted Hitler’s war policy before the war, he is being +charged with having had various connections with the SS and SA, and +especially with the fact that the SS, the SA, and the Leadership Corps +of the Party obtained their recruits from the Hitler Youth. This last +fact is quite correct, but it proves nothing as to Schirach’s attitude +toward Hitler’s war policy and is equally pointless as regards the +question of his participation in Hitler’s war conspiracy. For since 90 +or 95 percent or more of German youth belonged to the Hitler Youth +movement it was only natural that the Party and its formations as the +years went by should receive their young recruits in an ever-increasing +measure from the Hitler Youth. Practically no other youth was available. + +The Prosecution has referred to the agreement between the Reich Youth +Leadership and the Reichsführer SS, dated October 1938, concerning the +patrol service of the Hitler Youth, which was submitted to Your Honors +as Document 2396-PS; however, no inference can be drawn therefrom, for +patrol service in the Hitler Youth was merely an institution designed to +check up on and supervise the discipline of Hitler Youth members when +they appeared in public. It was, therefore, a kind of organization +police which was employed by the Hitler Youth movement entirely within +its own ranks. In order, however, to guard against difficulties with the +regular Police, an arrangement with the Reichsführer SS Himmler was +necessary because as chief of the whole police organization in Germany +he might have made trouble for the institution of the HJ patrol service. +This was the only object of the agreement of October 1938, which in +reality had just as little to do with providing recruits for the SS as +with the conduct and preparation of war. Moreover, it can clearly be +seen how resolutely Schirach strove against any influence on the part of +the Party over the Hitler Youth from the fact that in 1938 he protested +very sharply against having the education of the Hitler Youth during +their last 2 years from 16 to 18 taken over by the SA. He emphatically +opposed this plan and through personal intervention with Hitler +prevented the Führer decree in question from being applied in practice. + +As for his attitude toward the SS, we know from the testimony of the +witness Gustav Hoepken, who was heard here on 28 May 1946, and from the +affidavit of the witness Maria Hoepken, Schirach Document Book Number 3, +that Schirach always feared he was being shadowed and spied upon by the +SS in Vienna. He always had an uncomfortable feeling because at the +beginning of his activity in Vienna a permanent deputy had been +appointed for him in his capacity as Reich Governor (Reichsstatthalter) +and Reich Defense Commissioner in the person, of all things, of a higher +SS leader, a certain Dr. Delbrügge; he was, as Schirach knew, closely +associated with the Reichsführer SS who, as has been proved, proposed to +Hitler in 1943 that Schirach should be imprisoned for defeatism and +brought before the Peoples’ Court, which meant in practice that Himmler +would have had Schirach hanged. These facts alone are already proof of +the real relationship between the Defendant Von Schirach and the SS, and +it will be understood why Schirach finally refused even the police +protection squad assigned to him and preferred to entrust his personal +protection to a unit of the Wehrmacht which was not subordinate to the +order of Himmler. (See affidavit of Maria Hoepken in Schirach Document +Book Number 3.) + +Another accusation which has been made against the Defendant Von +Schirach concerns his attitude in the Church question. This attitude +corresponds to the impression given by the present proceedings, and +while this issue is not given any prominence in the Indictment, it is +nevertheless of considerable importance as far as the appreciation of +Schirach’s personality is concerned. + +Schirach himself, as well as his wife, always remained members of the +Church. To the foreign critic this circumstance may perhaps appear an +unimportant detail, but we Germans know what pressure was exerted upon +high-ranking Party officials in these very matters, and how few in his +position ventured to resist such pressure. Schirach was one of those +few. He was the one high-ranking Party Leader who constantly and +invariably punished with extreme severity any hostile interference and +outrages against the Church on the part of the Hitler Youth. He has also +been reproached for the fact that various songs were sung by the Hitler +Youth which contained offensive remarks about religious institutions, +but in this respect Schirach could with a clear conscience confirm on +his oath that partly he was unaware of those songs, which is quite +conceivable where an organization of 7 or 8 million members is involved; +on the other hand, certain songs now considered objectionable date back +to the Middle Ages and figured in the song book of the Wandervogel, a +former youth organization which the Prosecution surely does not propose +to condemn. Schirach has however especially pointed out that during the +years 1933 to 1936 several million youths from an entirely different +spiritual environment joined the Hitler Youth and that during the first +revolutionary years, that is, in the period of storm and stress of the +Movement, it was quite impossible to hear of and prevent all lapses of +this sort. Whenever Schirach did hear of such things he intervened and +remedied abuses of that kind, which after all represented offenses on +the part of isolated elements incapable of compromising the youth +organization as a whole. + +It is Schirach’s conviction that the examination of evidence leaves no +doubt as to his conciliatory behavior in the matter of the Church, and +that he strove to establish proper relations of mutual respect between +the Church on the one hand and the Third Reich, and more especially the +Reich Youth Leadership, on the other hand, and to observe their +respective rights and competences. At his own request Schirach was +permitted by the Reich Minister of the Interior to take part in +conducting the Concordat negotiations with the Catholic Church in 1934, +because he hoped to achieve an agreement with the Catholic Church more +easily by his personal co-operation. He honestly endeavored to find a +formula for the settlement of the youth question by which agreement with +the Catholic Church could be possible. His moderation and good will in +this respect were frankly acknowledged by the representative of the +Catholic Church at that time. But everything was ultimately frustrated +by Hitler’s opposition and the complications created for these +negotiations by the events of 30 June 1934, the so-called Röhm Putsch. + +With the Protestant Church, on the other hand, Schirach achieved an +agreement with the Reich Bishop, Dr. Müller, so that the incorporation +of the Protestant youth groups into the Hitler Youth was not attained by +constraint but by mutual agreement, not by breaking up these +associations by the State or the Party, as the Prosecution assumes, but +upon the initiative of the Protestant ecclesiastical head and in +complete agreement with him. It must be pointed out here that it was +always Schirach’s policy that no restrictions were to be imposed on +church services by the Youth Leadership, neither then nor later. On the +contrary, as he himself has testified and as was confirmed by the +witness Lauterbacher, Schirach emphatically stated in 1937 that he would +leave it to the churches to educate the younger generation according to +the spirit of their faith, and at the same time he ordered that, as a +principle, no Hitler Youth service was to be scheduled on Sundays during +the time of church services. He gave strict orders to the unit leaders +of the Hitler Youth not to schedule duties which might disturb church +services. If, however, in individual cases such interference did occur +and some religious authorities lodged complaints as the +cross-examination revealed, then the Defendant Schirach cannot be blamed +for this, nor does it alter the fact that he had every good intention. + +During the Trial not a single case could be proved in which he stirred +up feeling against the Church or made antireligious statements; on the +contrary, at numerous rallies as submitted to the Tribunal in the +Schirach document book, he not only repeatedly opposed the allegation +that the Hitler Youth were enemies of the Church or atheists, but he +always positively impressed upon the leaders and members of the Hitler +Youth the necessity of fulfilling their obligation toward God; he would +not tolerate anyone in the Hitler Youth who did not believe in God; +every true teacher, he told them, must imbue youth with religious +feeling, since it was the basis of all educational activities; Hitler +Youth service and religious convictions could very well be associated +with each other and exist side by side; no Hitler Youth leader was to +engender conflicts of conscience whatsoever in his boys. Leave of +absence was to be granted to Hitler Youth members for religious +services, rites, _et cetera_. Such was Von Schirach’s point of view. + +Whoever gives such instructions to his subleaders, and continues to do +so over and over again, can demand that he should not be judged an enemy +of the Church and an enemy of religious life. Incidentally, it is +interesting in this connection to note what such a reliable judge as +Nevile Henderson wrote in his oft-quoted book _Failure of a Mission_ +about a speech which he heard Schirach deliver at the 1937 Reich Party +Rally, parts of which have been submitted in Schirach’s document book. +Henderson, who as Ambassador in Berlin knew German conditions +intimately, evidently expected that Baldur Schirach would speak against +the Church at the Reich Party Rally and would influence the young people +in the spirit of enmity to the Church, as was often done by other +leaders of the Party. Henderson writes, and I quote two sentences: + + “That day, however, it was Von Schirach’s speech which ... + impressed me most, although it was quite short.... One part of + this speech surprised me when, addressing the boys, he said, ‘I + do not know if you are Protestants or Catholics, but that you + believe in God, that I do know.’” + +And Henderson added: + + “I had been under the impression that all references to religion + were discouraged among the Hitler Youth, and this seemed to me + to refute that imputation.” + +What Schirach really thought with regard to religion, and in what sense +he influenced youth, is indicated not only by a statement he made on the +occasion of a speech before the teachers of the Adolf Hitler Schools at +Sonthofen, to the effect that Christ was the greatest leader in the +history of the world, but likewise by the small book, submitted to you +in evidence, entitled, _Christmas Gift of the War Welfare Service_. This +book, which was sent out in large numbers, was dedicated by Schirach to +the front-line soldiers who joined from the ranks of the Hitler Youth +movement in 1944, at a time when radicalism in all spheres of German +life could hardly become more pronounced. + +Here also Schirach was an exception: You will find no swastika, no +picture of Hitler, no SA song in the book of Reichsleiter Von Schirach, +but among other things a distinctly Christian poem from Schirach’s own +pen, then a picture of a Madonna, and next to it a reproduction of a +painting by Van Gogh who, as is generally known, was strictly banned in +the Third Reich. Instead of inflammatory words, we find an exhortation +to a Christian way of thinking and the “Wessobrunner Gebet,” familiar as +the earliest Christian prayer in the German language. Bormann stormed +when he saw the pamphlet, but Schirach remained firm and refused to +withdraw the little book or alter it in any way. + +The Defendant Von Schirach has been charged with having once undertaken +a hostile act against the Church, and with having thereby taken part in +the persecution of the Church. From a letter by Minister Lammers of 14 +March 1941 (Document R-146), it appears that Schirach had proposed to +keep confiscated property at the disposal of the Gaue, and not to hand +it over to the Reich, but this case is no justification at all for +connecting the Defendant Von Schirach in some way or other with the +persecution of the Church. The case mentioned by the Prosecution does +not concern church property at all, but confiscated property of a Prince +Schwarzenberg in his Vienna palace. This affair therefore never had +anything to do with the Church. This is also confirmed unequivocally by +Minister Lammers’ letter of 14 March 1941 (R-146), which mentions only, +I quote, “a confiscation of the property (of persons) hostile to the +people and the State,” whereas Bormann’s far-reaching personal intention +becomes apparent and betrays his hostile attitude toward the Church when +he writes about “church properties (monastic possessions, and so forth)” +in his accompanying letter of 20 March 1941 referring to this case. +Moreover, the confiscation of Prince Schwarzenberg’s property was not +caused, pronounced, or carried out by Schirach. Schirach had nothing to +do with the confiscation as such; Schirach, however, in agreement with +the other Gauleiter of the Austrian NSDAP, and at their request, +personally applied to Hitler and asked that such confiscated property +should not be taken to the Reich and not be used on behalf of the Reich, +but that it should remain in Vienna. This suggestion met with approval. +Hitler complied with his request, the result of Schirach’s efforts being +that, when the confiscation was rescinded later on, the property could +be returned to the legitimate owner, whereas it would otherwise have +been lost by him. By acting thus, Schirach no doubt rendered a service +to the Gau of Vienna and to the owner of the property seized. This +instance surely cannot be construed as a charge against the Defendant +Von Schirach; on the contrary, it speaks in his favor just as the other +case where, disregarding Bormann, he intervened on behalf of Austrian +nuns and as a result brought about, by a direct order from Hitler, the +discontinuance from one day to the other of the whole project of +confiscating church and monastic property in the whole Reich. + +If the Prosecution further undertakes to charge the Defendant Von +Schirach with the fact that the Vienna authorities subordinate to him +proposed to establish an Adolf Hitler School in the monastery of +Klosterneuburg in 1941, I must point out that even prior to the +requisitioning of this monastery, and entirely independently of +Schirach, the Vienna police and several Vienna courts had uncovered a +considerable number of criminal offenses in this monastery, furthermore +that the confiscation of part of the monastery seemed entirely justified +to the Defendant Von Schirach, since the very spacious rooms of this +religious establishment were not required for monastery purposes. + +It should also be noted that the monastery, as can be seen from +documents submitted, did not file any protest with the Reich Minister of +the Interior against the decision to confiscate, and thereby recognized +the confiscation as legal, although it had been expressly informed in +the confiscation decree of the possibility of lodging a complaint. +Moreover, the confiscated quarters were afterward not used for the +establishment of an Adolf Hitler School, but for the Museum of +Historical Art (thus not for a Party establishment), which again +testifies to the fact that the confiscation decree had in no way been +issued because of a hostile attitude on the part of Schirach toward the +Church. Had it been Schirach’s object to attack the monastery because it +was an ecclesiastical institution, he would have included in the +confiscation the rooms used for religious ceremonies. These, however, he +strictly excluded. + +Moreover, when appraising this case, attention should be paid to the +fact that the justification of the confiscation decree of 22 February +1941 displays remarkable reticence. The decree restricts itself to +justifying the confiscation by the fact that on the one hand Vienna +badly needed room and that on the other hand the premises confiscated +were not required for the purposes of the monastery. Not a single word +mentions or even suggests that criminal offenses had taken place in the +monastery, as recorded in a police report of 23 January 1941, which is +submitted to the Court. If this confiscation had been the result of a +hostile attitude of Schirach toward the Church, we could have been sure +that somehow or other reference would have been made to these criminal +offenses to justify the confiscation. At Schirach’s wish a monthly +indemnification was paid to the clergy who had occupied some of the +confiscated rooms, for which payment there existed no official +obligation whatever. + +Defendant Von Schirach’s further behavior does not reveal any hostile +attitude toward the Church, particularly if one considers, when judging +this behavior, that during these years even a Reichsleiter was under +strong pressure by the Reich Chancellery and by Bormann, and that at +that time a considerable amount of courage was necessary to resist this +pressure and carry on a policy in opposition to the official Berlin +policy. + +The witness Wieshofer of Vienna, who had the opportunity of watching +Schirach’s activities, confirmed before the Court that in Vienna +Schirach likewise strove to establish correct relations with the Church, +that he was always willing to listen to any complaints of the Cardinal +of Vienna and took severe measures against the excesses of individual +members of the Hitler Youth or Hitler Youth leaders. In Vienna he thus +displayed a policy toward the Church quite different from that which his +radical predecessor Bürckel had favored, and it is beyond doubt that +ecclesiastical circles in Vienna and the whole of the Viennese +population appreciated Schirach’s attitude toward the Church. This is +also confirmed by the witness Gustav Hoepken who was examined here and +who, by order of Schirach, held regular conferences with a Vienna +theologian, Professor Ens, in order to be able to inform the Defendant +Schirach of the wishes of the Church and the differences which had +arisen with ecclesiastical authorities. Unless he wished to expose +himself to the most serious danger, Schirach could do no more under the +prevailing political circumstances, which are described in the affidavit +of Maria Hoepken, Document Book Schirach Number 3. + +I now turn to another point of the Indictment, to the question of the +concentration camps. The Prosecution has connected the defendant with +concentration camps, although not in the Indictment but during the +presentation of evidence; and the witness Alois Höllriegel, who was +questioned here, was asked in the witness box whether Schirach had ever +been inside the Mauthausen Concentration Camp. To this I should like to +remark that the Defendant Von Schirach mentioned his visit to Mauthausen +at his interrogation by the American Prosecution before the beginning of +the Trial; it would, therefore, not have been necessary to have this +visit confirmed again by the witness Höllriegel. He visited the +Mauthausen Concentration Camp in the year 1942, not in 1944, as the +witness Marsalek erroneously stated; the correct year, 1942, has been +confirmed by the witness Höllriegel and also by the witnesses Hoepken +and Wieshofer, from whom we heard that neither after 1942 nor at any +other time did Schirach visit other concentration camps. The visit to +Mauthausen in 1942 cannot implicate the defendant Schirach in the sense +of his having known, approved, and supported all the conditions and +atrocities in concentration camps. In 1942 he saw nothing in Mauthausen +which might have indicated such crimes. There were no gas chambers and +the like in 1942. At that time mass executions did not take place at +Mauthausen. The statements of the Defendant Von Schirach concerning his +impression of this camp appear quite plausible, because the testimony of +numerous witnesses who have been heard during the course of this Trial +has confirmed again and again that on the occasion of such official +visits, which had been announced previously, everything was carefully +prepared in order to show to the visitors only that which need not fear +the light of day. Maltreatment and torture were concealed during such +official visits in the same manner as arbitrary executions or cruel +experiments. This was the case at Mauthausen in 1942 and certainly also +at Dachau in 1935, where Schirach and the other visitors were shown only +orderly conditions, which at a superficial glance appeared to be better +than in some ordinary prisons. + +As a result, Schirach only knew that since 1933 there were several +concentration camps in Germany where, as far as he knew, incorrigible +habitual criminals and political prisoners were confined. However, even +today Schirach is unable to believe that the mere knowledge of the +existence of concentration camps is in itself a punishable crime, since +he at no time did anything whatsoever to promote concentration camps, +never expressed his approval of this institution, never sent anybody to +a concentration camp, and would in any case never have been able to make +any changes in this institution or to prevent the existence of +concentration camps. Schirach’s influence was always too small for that. +As Reich Youth Leader, of course, he had nothing to do with +concentration camps in the first place, and it was lucky for Schirach +that in his entire Vienna Gau district there was not a single +concentration camp. His relations with concentration camps were +therefore limited to repeated attempts to have people released from +them, and it is after all significant that his sole visit to the +Concentration Camp Mauthausen resulted in his exerting his influence to +obtain the ultimate release of inhabitants of Vienna who were imprisoned +there. + +May it please the Tribunal, I do not want to go again into many details +which have played a larger or smaller part in the presentation of +evidence for the case of Schirach. In the interest of saving time I +shall not deal more specifically with his alleged connection with +Rosenberg or Streicher, nor with his alleged collaboration in the slave +labor program, in which connection not even the slightest participation +of the Defendant Schirach could be proved, nor with a telephone +conversation which has been used by the Prosecution and which allegedly +took place between one of the Viennese officials and an SS +Standartenführer regarding the compulsory labor of the Jews, about which +Von Schirach knew nothing at all. + +But I should like to insert a short remark about one subject which arose +particularly in connection with the case of Rosenberg, that is, a brief +explanation concerning the Hay Action by which thousands of children in +the Eastern combat zone were collected and brought partly to Poland and +partly to Germany. The apparent aim of this operation, as far as +Schirach could see from the documents presented here, was to collect +children who were in the zone of operations, that is, immediately behind +the front and wandering around without their parents, with a view to +giving them professional training and work so that they should be saved +from physical and moral neglect. + +The Defendant Von Schirach doubts whether this can be looked upon as a +crime against humanity, or as a war crime; but one thing is certain, +that the Defendant Von Schirach did not know anything of that affair at +the time. He was not the competent authority. That entire affair was +handled by Army Group Center in collaboration with the Ministry for the +Eastern Occupied Territories, and, of course, it is quite plausible that +neither the Eastern Ministry nor the Army Group Center saw fit to +approach the Gauleiter of Vienna in order to get his approval of that +action, or even to notify him about it. + +The only thing which, a considerable time later, came to the attention +of the Defendant Von Schirach and may have some bearing on that, the Hay +Action, was an incidental report by Reich Youth Leader Axmann that so +and so many thousand youths had been brought to the Junkers works at +Dessau as apprentices. + +The Defendant Von Schirach was anxious to clear up this matter in view +of his former office as Reich Youth Leader, and he wishes to make it +quite clear that even after leaving that office he would of course never +have undertaken anything against the interests of youth. + +May I add another remark here concerning the letter which the Defendant +Von Schirach sent to Reichsleiter Bormann after the murder of Heydrich, +in which he suggested reprisal measures to Bormann in the form of a +terror attack upon an English center of culture? That letter was +actually sent by the defendant to Bormann. He acknowledges it. I have to +point out at the very beginning that fortunately the suggestion remained +a suggestion, and it was never carried out. The defendant, however, has +told us that at that time he was very upset by the assassination of +Heydrich, and it was clear to him that a revolt of the population in +Bohemia would necessarily lead to a catastrophe for the German armies in +Russia, and in his capacity as Gauleiter of Vienna he had considered it +his duty to undertake something to protect the rear of the German army +fighting in Russia. And that explains that teletype to Bormann in 1942 +(Document 3877) which, as I have already pointed out, fortunately was +not acted upon. + +May it please the Tribunal, I shall proceed with my statement, the +middle of Page 26. + +I shall not deal in detail with the Adolf Hitler Schools which were +founded by Schirach, nor with the Fifth Column which was somehow, quite +wrongly, connected with the Hitler Youth, although nothing definite +could be charged to the defendant. I shall not go into either the +repeated efforts on behalf of peace undertaken by the Defendant Schirach +and his friend Dr. Colin Ross, nor shall I discuss the merits of the +defendant with reference to the evacuation of children to the rural +areas, which took millions of children from bomb-endangered districts +during the war into more quiet zones and thus saved their lives and +health. + +The Defendant Von Schirach has already talked about all these affairs in +detail himself, and I should therefore like to refer to his own +statements, which you will consider in your judgment. + +As counsel for the Defendant Von Schirach, I shall discuss only one more +problem here, namely Schirach’s opinion and attitude concerning the +Jewish question. Schirach has admitted here on the witness stand that he +has been a convinced National Socialist, and thus also an anti-Semite +from his earliest youth. He has also made clear to us what he understood +by anti-Semitism during those years. He thought of the exclusion of the +Jews from civil service and of the limitation of Jewish influence in +cultural life and perhaps also in economic life, to a certain extent. +But that was all which in his opinion should be undertaken against the +Jews, and this was in accordance with the suggestion which he had +already made as leader of the students’ organization for the +introduction of a quota system for students. The defendant’s decree +concerning the treatment of Jewish youth is, for example, also important +in establishing his attitude (Schirach Document Number 136). This is a +decree in which he expressly orders that Jewish youth organizations +should have the right and the opportunity to practice freely within the +limitations imposed upon them. It says that they were not to be +disturbed in their own life. + + “In its youth the Jewish community shall already today take up + that secluded but internally unrestrained special position which + at some future time the entire Jewish community will be given in + the German State and in German economy.” + +Those are the very words of that decree. Obviously Schirach was not at +all thinking about pogroms, bloody persecutions of the Jews, and the +like; rather did he believe at that time that the anti-Semitic movement +had already achieved its aim by the anti-Jewish legislative measures of +the years 1933-34, thereby eliminating Jewish influence as far as it +seemed unhealthy to him. He was therefore surprised and very alarmed +when the Nuremberg Laws were promulgated in 1935, which formulated a +policy of complete exclusion of the Jewish population and carried it out +with barbaric severity. Schirach in no way took part in the planning of +these laws; he has nothing whatsoever to do with their content and their +formulation. That has been proved here. + +When on 10 November 1938 he heard about the pogrom against the Jews and +about the brutal excesses which were staged by Goebbels and his fanatic +clique his indignation became known throughout the entire youth +movement. The evidence proved this also. We have heard from the witness +Lauterbacher how Schirach reacted to the report of these excesses: He +immediately called his assistants together and gave them the strictest +orders that the Hitler Youth must be kept out of such actions under all +circumstances. He at once had the leaders of the Hitler Youth in all +German cities notified by telephone to the same effect and warned every +subordinate that he would hold him personally responsible if any +excesses should occur in the Hitler Youth. + +But even after November 1938 Schirach never considered the possibility +that Hitler was contemplating the extermination of the Jews. On the +contrary, he only heard it mentioned that the Jews were to be evacuated +from Germany into other states, that they should be transported to +Poland and settled there, at worst in ghettos, but more probably in a +closed settlement area. When Schirach in July 1940 received Hitler’s +order to take over the Gau of Vienna, Hitler himself also talked to him +along the same lines, namely, that he, Hitler, would have the Jews +brought from Vienna into the Government General; and even today Schirach +has no doubt that Hitler himself was not thinking about the so-called +“final solution” of the Jewish question at that time, 1940, in terms of +the extermination of the Jews. We learn from the Hossbach minutes and +other evidence of this Trial that Hitler was planning the evacuation of +Poland already in 1937, but that he decided on the extermination of the +Jewish people only in 1941 or 1942. + +Schirach had nothing at all to do with the evacuation of the Jews from +Vienna, as is alleged by the Prosecution; the execution of this measure +was exclusively in the hands of the Reich Security Main Office and the +Vienna branch of that office, and it is known that SS Gruppenführer +Brunner of Vienna has in the meantime been sentenced to death for that +very reason. The only order which Schirach received and carried out +concerning the Viennese Jews was to report to Hitler in 1940 how many +Jews there were still left in Vienna, and he made this report in a +letter of December 1940 where he gave the figure of the Viennese Jews +for 1940 as 60,000. It will be remembered that Minister Lammers answered +this letter from the Defendant Schirach by a letter dated 3 December +1940 (1950-PS), which shows with all clarity that it was not Schirach +who ordered the evacuation of the Viennese Jews to the Government +General but Hitler himself, and that again it was not Schirach who +carried out this measure but the Reichsführer SS Himmler, who delegated +this task to his Vienna office. It must therefore be stated here +categorically that Schirach is in no way responsible for the deportation +of the Jews from Vienna; he did not carry out this program and he did +not initiate it; when he came to Vienna in the summer of 1940 as +Gauleiter, the majority of the Viennese Jews had already voluntarily +emigrated or had been forcibly evacuated from Vienna, a fact which was +confirmed by the Defendant Seyss-Inquart. The remaining 60,000 Jews who +were still there at the beginning of Schirach’s time in Vienna were +deported from there by the SS without his participation and without his +responsibility. + +Schirach did make the well-known speech in Vienna in September 1942, +where he stated that every Jew working in Europe was a danger to +European culture. Schirach furthermore said in this speech that if it +was desired to reproach him with the fact that he had deported tens of +thousands of Jews into the Eastern ghetto from this city, which had once +been the metropolis of Judaism, he would but answer that he considered +this an active contribution to European culture. That is how this +passage reads. Schirach has openly and courageously admitted that he +actually expressed himself in this manner at that time, and expressed +his regret by stating: + + “I cannot take back this wicked statement; I must take the + responsibility for it. I spoke these words, which I sincerely + regret.” + +Should the Tribunal see in these words a legally punishable crime +against humanity, Schirach will have to make atonement for this single +anti-Semitic remark which can be attributed to him, though it was merely +a spoken word and did not have any harmful result. Schirach’s attitude +in this respect does not exempt the Tribunal from its duty to verify +carefully what Schirach actually did; furthermore, under what +circumstances he made this isolated remark, and finally whether Schirach +also made any other spiteful remarks against the Jews or committed any +malicious acts against the Jewish race as a whole. + +The foremost question is: What did Schirach really do? The reply to +this, emerging from the revelations of this Trial, can only be: Apart +from the fact that he made this isolated anti-Semitic remark in his +speech in Vienna in September 1942, he has not committed any crime +against the Jews. He had no competence in the question of the +deportation of the Vienna Jews, he did not participate in it at all, and +having too little power he could not have prevented it in any case. It +is just as the Prosecution incidentally stated: He boastfully attributed +to himself an action which in reality he had never committed and, in +view of his entire attitude, he never could have committed. + +What, however prompted Schirach to make this remark in his Vienna +speech? How did he come to attribute to himself a deed and charge +himself with an action which he had obviously never committed? Here too +the answer is given by the results of the evidence in the Trial: It +demonstrates what a very difficult position Schirach had in Vienna. +Without giving any reason, Hitler dismissed him as Reich Youth Leader, +presumably because he no longer trusted him. From year to year Hitler’s +fear was growing lest the young people might stand behind Schirach and +become alienated from him, Hitler, to the same degree that the black +wall of his SS was isolating him from the people. Hitler possibly saw in +his Youth Leader the personification of the coming generation which +thought in world-wide terms, whose feelings were human and who felt +themselves more and more bound to those precepts of true morality which +Hitler had long ago jettisoned for himself and his national leadership, +because they had long since ceased to be concepts of true morality for +him but mere slogans of a meaningless propaganda. This feeling of +Hitler’s may have been the deeper reason why he dismissed Schirach as +Youth Leader suddenly in the summer of 1940, without word of +explanation, and put him in the especially difficult position of +Gauleiter in Vienna, the city which he, Hitler, hated from the bottom of +his heart, even while he spoke of his “Austrian fatherland.” + +In Vienna Schirach’s position was extremely complicated. Wherever he +went he was shadowed and spied upon, his administrative activity there +was sharply criticized, he was reproached for neglecting the interests +of the Party in Vienna, for almost never being seen at Party meetings, +and for not making any political speeches. I refer in this connection to +the affidavit of Maria Hoepken, Schirach Document Book Number 3. The +Berlin Party Chancellery accepted any complaints the Vienna Party +members made about their new Gauleiter with satisfaction, and this fact +alone can explain the unfortunate speech Schirach made in September +1942, which was diametrically opposed to the attitude he had always +maintained concerning the Jewish question. After the interrogation of +the witness Gustav Hoepken here in this courtroom there can be no doubt +as to how the Vienna speech came about, for it reveals that Schirach had +expressly charged his press officer Günther Kaufmann to emphasize this +particular point when telephoning his report of the Vienna speech to the +German News Agency in Berlin, because he, Schirach—I quote—“had to +make a concession to Bormann in this respect.” Schirach himself stressed +this point in the course of his interrogation with the statement that +out of false loyalty he had morally identified himself with these acts +of Hitler and Himmler. This ugly speech which Schirach made in September +1942 is, however, in another sense a very valuable point in favor of +Schirach: He speaks of a “transfer of the Jews to the ghettos of the +East.” Had Schirach known at that time that the Viennese Jews were to be +sent away in order to be murdered in an extermination camp, he would in +view of the purpose of this speech doubtless not have spoken of an +Eastern ghetto to which the Jews had been sent, and would have reported +the extermination of the Viennese Jews; but even at this time, in the +autumn of 1942, he never had the slightest suspicion that Hitler +proposed to murder the Jews. That he would never have approved and never +accepted; his anti-Semitism at no time went so far. + +Schirach also frankly stated here that at that time he approved of +Hitler’s plan to settle the Jews in Poland, not because he was inspired +by anti-Semitism or hatred of the Jews, but by the reasonable +consideration that in view of existing conditions it was in the Jews’ +own interest to leave Vienna and be taken to Poland, because the Jews +would not in the long run have been able to stay in Vienna under the +Hitler regime without being exposed to increasingly serious persecution. +As Schirach declared on 24 May 1946, considering Goebbels’ temperament +it always seemed possible that incidents like those of November 1938 +might be repeated from one day to the other, and under such conditions +of legal insecurity he could not visualize the existence of the Jewish +population in Germany. He thought that the Jews would be safer in a +restricted settlement area of the Government General than in Germany and +Austria, where they were exposed to the whims of the Propaganda Minister +who, indeed, had been the main supporter of radical anti-Semitism in +Germany. Schirach was well aware of this fact. He could not shut his +eyes to the realization that the drive against the Jews in Germany +obviously became more drastic, more fanatic, and more violent every day. +This conception of the Vienna speech of September 1942 and the true +cause of its genesis coincide with the statements of the Defendant +Schirach at the meeting of the city councillors of Vienna on 6 June 1942 +(Document Number 3886-PS), to the effect that in the late summer and +autumn of that year all Jews would be expelled from the city, and +likewise with the file note of Reichsleiter Bormann of 2 October 1940 +(USSR-142), according to which, at a social meeting at Hitler’s home, +Schirach had remarked that he still had more than 50,000 Jews left in +Vienna which the Governor General of Poland must take over from him. +This remark was caused by Schirach’s embarrassing situation at that +time. Hitler, on the one hand, kept insisting on the expulsion of the +Jews from Vienna, while on the other hand Governor General Frank was +reluctant to receive them in the Government General. This disagreement +was evidently the reason for Schirach’s discussing this fact at the +above-mentioned meeting on 2 October 1940, in order to avoid renewed +reproaches by Hitler. Personally he was in no way interested in the +removal of the Viennese Jews, as was proved by the testimony of the +witness Gustav Hoepken regarding the conference between Schirach and +Himmler in November 1943. + +I should like to add a word here concerning that discussion. During that +conference with Himmler, Schirach presented the point of view that the +Jews might be left in Vienna, especially since they were wearing the +Star of David anyway. That has been testified to by the witness Hoepken +as being a statement made by Schirach during the conversation. However, +Hitler demanded the expulsion of the Jews from Vienna and Himmler +insisted on having it carried out. + +The Prosecution thought it possible to charge Schirach with having made +another malicious anti-Semitic remark in connection with a speech which +he supposedly made in late December 1938, certainly before the spring of +1939, at a students’ meeting at Heidelberg. Across the Neckar River he +pointed to the old university town of Heidelberg where several +burned-out synagogues were the silent witnesses to the anti-Semitic +activities of the students of Heidelberg. I refer to the affidavit of +Ziemer, in which “the stout little Reich Student Leader”—as it is +stated literally—is said to have approved and commended the pogroms of +9 November 1938 as a heroic act. This charge, as already mentioned, is +supported by the declaration under oath of a certain Gregor Ziemer. +However, there can be no doubt that this statement of Ziemer’s is false. +Ziemer never belonged to the German student movement or the Hitler +Youth, and obviously was not personally present at the student assembly +in question. The affidavit does not state from what source he is +supposed to have obtained his knowledge. However, that his claim is +false is already proved by his description of physical appearance when +he speaks of a “stout little student leader”; for this does not at all +resemble Schirach. Perhaps it would to some extent apply to his +successor, who was Reich Student Leader at the end of 1938, but it +certainly was not Schirach. As is known, he had already in 1934 given +the office of Reich Student Leader back into the hands of the Führer’s +deputy, after he himself had in the meantime been appointed Reich Youth +Leader. Schirach did not make a speech at the end of 1938 or at any +other time before Heidelberg students, and by the affidavit of the +witness Maria Hoepken (Schirach Document Book Number 3) it has been +clearly proved that at the time stated Schirach was not in Heidelberg at +all. Schirach has also confirmed this under oath and his own statement +can lay claim to credibility because he has not whitewashed anything for +which he was responsible, and he has not falsely denied anything, but on +the contrary has accounted for all his actions with courage and +truthfulness during his entire examination. + +Still another fact decisively confirms the claim that the Ziemer +affidavit is untrue, at any rate in regard to the person of Schirach. In +the presentation of evidence it happened to be stated by chance how +Schirach reacted to the November pogroms of the year 1938. The witness +Lauterbacher has informed us here, as already mentioned at another +point, that Schirach on 10 November 1938 condemned most vehemently the +events of 9 November 1938 in the presence of his co-workers, and +declared that he felt ashamed for the others and for the whole Party. +The 9th of November 1938, Schirach said, would go down in Germany +history as a unique disgrace of German culture of which we would never +be able to cleanse ourselves. Such a thing might have happened among an +uncivilized people, but it should never have occurred among us Germans +who consider ourselves to be a highly civilized people. The youth +leaders, Schirach explained at that time, had to prevent such excesses +under all circumstances. He did not wish to hear anything like this +about his own organization, either now or in the future. The Hitler +Youth must be kept outside such things under all circumstances. These +are sworn statements by the witness Hoepken. By a telephone message from +Berlin, Schirach had all the offices of the Hitler Youth informed in the +same terms. If Schirach in November 1938 condemned and criticized in +such an extremely sharp manner the events of 9 November 1938, it is +impossible for him to have praised at about the same time the bloody +acts which had been committed and thus to have incited the Heidelberg +students, and the question therefore arises as to why not a single +participant at that student meeting in Heidelberg was brought here as a +witness instead of one who could only testify from hearsay. +Incidentally, the Prosecution did not revert to this alleged Heidelberg +speech during cross-examination, thereby acknowledging Schirach’s own +presentation of the facts to be correct. + +It is also a very significant fact that the Hitler Youth did not +participate in the excesses of 9 November 1938, nor did they commit any +excesses of this sort either before or afterward. The Hitler Youth at +that time was the strongest Party organization. It comprised some seven +or eight million members, and in spite of that not one single case has +been proved where the Hitler Youth participated in such crimes against +humanity, although its members were mainly of an age which, according to +experience, is only too easily tempted to participate in excesses and +acts of brutality. The only exception which has been claimed so far +concerns the testimony of the French woman Ida Vasseau, who is said to +be the manager of an Old People’s Home in Lemberg and is supposed to +have claimed, according to the report of the Commission, Document Number +USSR-6, that the Hitler Youth had been given children from the ghetto in +Lemberg whom they used as living targets for their shooting practice. +This single exception, however, which so far has been claimed but not +proved, could not be cleared up in any way, particularly not in respect +of whether members of the Hitler Youth had really been involved. But +even if there had been such a single case among the eight million +members during 10 or 15 long years, this could not in any way prove that +Baldur von Schirach had exercised an inciting influence, and that, if I +may add this here, at a time when he was no longer Reich Youth Leader. + +THE PRESIDENT: We will adjourn now. + + [_A recess was taken._] + +DR. SAUTER: If the Tribunal please, I shall proceed from Page 36 of my +statement. Let us just examine all the speeches and articles which Von +Schirach wrote as Reich Youth Leader, and which are in the possession of +the Tribunal in the Schirach document book. They extend over a long +period of years, yet they do not contain a single word inciting to race +hatred, preaching hatred of Jews, exhorting youth to commit acts of +violence, or defending such acts. If it has been possible to keep the +members of the Hitler Youth, who numbered millions, clear of such +excesses, this fact also goes to prove that the leaders endeavored to +imbue the younger generation with a spirit of tolerance, love of one’s +neighbors, and respect of human dignity. + +Just what Von Schirach thought about the treatment of the Jewish +question is clearly evident from the scene with occurred in the spring +of 1943 at Obersalzberg, which is also described in the affidavit of the +witness Maria Hoepken (Document Book Schirach Number 3). In this case I +refer to the scene where Schirach had an eyewitness describe to Hitler +at his home at Obersalzberg how he had witnessed with his own eyes at +night from a hotel window in Amsterdam the manner in which the Gestapo +deported hundreds of Dutch Jewesses. Schirach himself could not dare at +the time to bring such matters to Hitler’s attention; a decree by +Bormann had expressly prohibited the Gauleiter from doing this. Schirach +therefore tried through the mediation of a third person, who had been a +witness himself, to gain Hitler’s approval of a mitigation in the +treatment of the Jewish question. No success was achieved; Hitler +dismissed it all bluntly with the remark that this was all +sentimentality. Because of this intervention on behalf of the Dutch Jews +the situation of the Defendant Von Schirach had become so critical that +he preferred to leave Obersalzberg immediately, early in the morning of +the following day, and from that time on, Hitler was in principle no +longer accessible to Schirach. + +This intervention of Schirach for a milder treatment of the Jewish +question perhaps also contributed to the fact that Hitler, a few months +later, in the summer of 1943, seriously considered having Schirach +arrested and brought before the Peoples’ Court, for the sole reason that +Schirach had dared, in a letter to Reichsleiter Bormann, to describe the +war as a national disaster for Germany. + +In any case all this shows that Schirach, as much as he was able, +advocated moderation in the Jewish question in a manner which endangered +his own position and existence. In spite of the fact that he was an +anti-Semite—and just because of this it deserves attention—he +withstood all pressure from Berlin and refused to have an anti-Semitic +special edition published in the official journal of the Hitler Youth, +while he had published his own special editions for an understanding +with England and France and for a more humane treatment of the Eastern +nations. It is no less worthy of consideration that Schirach, in +conjunction with his friend Dr. Colin Ross, endeavored to attain the +emigration of the Jews into neutral foreign countries in order to save +them from being deported to a Polish ghetto. + +The Prosecution has endeavored to substantiate its allegation that the +Defendant Von Schirach bears a certain share of the responsibility for +the pogroms against Jews which occurred in Poland and Russia, by trying +to use against him the so-called “Reports on Experiences and Situation,” +which were regularly sent by the SS to the Commissioner for Defense of +the Reich in the Military Administrative District XVII. In fact it must +be said that if—and I emphasize, if—Schirach had at that time had +cognizance of these regular “Reports on Experiences and Situation by the +Operational Groups (Einsatzgruppen) of the Security Police and the +Security Service in the East,” then this fact would indeed constitute +for him a grave moral and political charge. Then he could not be spared +the accusation that he must have been aware of the fact that, apart from +the military operations in the East, extremely horrible mass murders of +Communists and Jews had also taken place. The picture of Von Schirach’s +character which we have so far, who was described even by the +Prosecution as a “cultured man,” would be tainted very materially if Von +Schirach had actually seen and read these reports. For then he would +have known that in Latvia and Lithuania, in White Ruthenia and in Kiev, +mass murders had taken place, quite obviously without any legal +proceedings of any kind and without sentence having been passed. + +What has, however, actually been proved by the evidence? The reports +referred to were sent, among dozens of other offices, also to that of +the “Reich Commissioner for Defense in Military Administrative District +XVII” and, moreover, with the specific address “attention of Government +Councillor Dr. Hoffmann” or “attention of Government Councillor Dr. +Fischer.” From this style of address and from the way in which these +reports were initialed at the office of the “Commissioner for Defense of +the Reich,” it can be established beyond question that Schirach did not +have an opportunity of seeing these reports and that he obtained no +knowledge of them in any other way either. + +Schirach, it will be remembered, held three extensive offices in Vienna: +as Reich Governor (Reichsstatthalter) and Reich Defense Commissioner he +was the chief of the whole State administration; as Lord Mayor he was +the head of the municipal administration; and as Gauleiter of Vienna he +was the head of the local Party machinery. It is only natural that +Schirach could not fulfill all these three tasks by himself, especially +since in 1940 he had come from a completely different set of tasks, and +first had to make himself acquainted with the scope of work in State +administration and in municipal administration. He therefore had a +permanent deputy for each of his three tasks, and for the affairs of the +State administration, which interests us here, this was the +Regierungspräsident of Vienna. This official, Dr. Delbrügge, was to +handle the current affairs of the State administration completely on his +own initiative. Schirach occupied himself only with such matters of +State administration as were forwarded to him by his permanent deputy, +the Regierungspräsident, in written form, or about which his deputy +reported to him orally. + +Now, if this had been the case with regard to the afore-mentioned +“Experience and Situation Reports,” then this would have somehow been +noted on the documents in question. However, on the “Experience and +Situation Reports of the SS” submitted here there is not a single note +which indicates that these reports were shown to the Defendant Von +Schirach or that he was informed about them. This will readily be +understood without further explanation because, after all, the +experiences which the Police and the SD had accumulated in the partisan +struggles in Poland and Russia were completely inconsequential for the +Vienna administration; therefore there was not the least cause to inform +the Defendant Baldur von Schirach of these reports in any way, since he +was very much overburdened anyhow with administrative matters of all +kinds. + +This conclusion, Gentlemen, rests primarily not only on the testimony +under oath of the defendant here in Court, but also on that of the two +witnesses Hoepken and Wieshofer, who, one as chief of the Central Office +and the other as adjutant of the defendant, were able to give the most +exact information about conditions in Vienna. It is certain that these +“Experience and Situation Reports” never came into the distribution +center of the Central Office in Vienna, but only into the distribution +center of the Regierungspräsident, and that Hoepken, as chief of the +Central Office, as well as Wieshofer, as adjutant of the defendant, +likewise had no previous knowledge of these reports but saw them for the +first time here in the courtroom during their questioning. And I would +like to insert here that the two officials of the Defendant Von Schirach +who were mentioned by name, Dr. Fischer and the other one, were entirely +unaware of them. In any case the result, as has been proved by the file +notes which are on the documents, is that Schirach did not have any +knowledge whatsoever of these reports, and that he is not coresponsible +for the atrocities described therein, and therefore cannot be criminally +charged on the basis of these activity reports. + +May it please the Tribunal, in judging the personality of Schirach, his +behavior during the last weeks in Vienna is also not without importance. +For Schirach it was a matter of course not to carry out the various +insane orders which came from Berlin at that time. He absolutely +condemned the lynching of enemy aviators which was ordered by Bormann, +and likewise the order to hang defeatists without mercy, regardless of +whether they were men or women. His summary court was never even in +session, and did not pronounce a single death sentence. No blood is on +his hands. On the other hand, for example, he did everything in order to +protect from the excited mob enemy aviators who had made an emergency +landing and again, as we have heard from the witness Wieshofer, he +immediately sent out his own car in order to bring to safety American +aviators who had parachuted. Thereby he again placed himself in +deliberate opposition to an order of Bormann that such aviators were not +to be protected against lynching by the civilian population. Nor did he +pay any attention to the order that Vienna was to be defended to the +last man, or that in Vienna bridges and churches and residential +sections were to be destroyed, and he emphatically refused compliance +with the order to form partisan units in civilian clothing or to +continue the hopeless struggle in a criminal manner with the aid of the +Werewolf organization. He turned down such demands out of his sense of +duty, all the more since this would have caused him to violate +international law. + +The characterization of the Defendant Von Schirach would be incomplete +if we were not also to recall at this moment the declaration which he +deposed here on the morning of 24 May 1946. I am speaking of that +declaration in which he described Hitler as an unmitigated murderer, +here before the whole German people and before the entire world public. +Already last year Schirach made declarations which show his feeling of +responsibility and his preparedness to answer fully for his actions and +those of his subordinates. This was the case on 5 June 1945, for +example, when he was hiding in the Tyrol and heard over the radio that +all Party leaders were to be brought before an Allied court. Schirach +thereupon gave himself up immediately, and in his letter to the American +local commander stated he was doing so in order to protect other people, +who had only executed his orders, from being called to account for his +actions. He surrendered voluntarily, although the British radio had +already announced the news of his death, and although Schirach could +have hoped to remain undiscovered in his hiding place. This behavior +deserves consideration in judging the personality of a defendant. + +The same feeling of responsibility was then shown by Schirach in the +autumn of 1945 when he was heard by the Prosecution. He believed at that +time that his successor Axmann had been killed, as he had been reported +to be dead. In spite of this, Schirach did not attempt to put the +responsibility on his successor; on the contrary, he expressly stated +that he was assuming full responsibility also for the time his successor +was in office, as well as for what had been done under his successor in +the Reich Youth Leadership. The keystone in this line of conduct is +furnished by the statement which Schirach made here on 24 May 1946, +which went out from this courtroom to the whole world, to all the German +lands, down to the last farm, down to the last workman’s hut. + +May it please the Tribunal: Any man may err, he may even make mistakes +that he later may not understand himself. Schirach also has erred; he +brought up the younger generation for a man whom he for many years held +to be unimpeachable and whom he must now brand as a diabolical criminal. +In his idealism and out of loyalty he remained faithful and true to his +oath to a man who deceived and cheated him and the youth of Germany and +who, as we learned here from Speer, up to his last breath placed his own +interests higher than the existence and the happiness of 80 million +people. + +Schirach is perhaps the one defendant who not only clearly realized his +mistakes, however they may be regarded, but who confessed to them most +honestly and who through his plain speaking prevented the creation of a +Hitler legend in the future. Such a defendant must be given +consideration for trying to repair as far as he can the damage which he +caused in good faith. + +Schirach had tried to do that; he took pains to open the eyes of our +people about the “Führer” in whom, together with millions of Germans, he +saw for many years the deliverer of the fatherland and the guarantor of +its future. He publicly rendered an account which the German people are +entitled to ask of every subleader since Hitler committed suicide. He +did this so that foreign countries could see how the conditions of the +last six years had come about in Germany and just who was responsible +for them. + +But above all, the former Youth Leader, in making his statement on 24 +May 1946, desired to tell the youth of Germany openly that so far, quite +unknowingly and with the best of intentions, he had led them astray and +that now they must take another path if the German people and German +culture are not to perish. In doing so Schirach did not think of himself +nor of his life’s work which had been destroyed; he was thinking of the +youth of today, which not only faces the ruins of our cities and +dwellings, but also wanders about among the wreckage of its former +ideals; he was thinking of German youth, which is in dire need of new +guidance and which must base its future existence on another foundation. + +Schirach hopes that the entire youth of Germany has heard his words. +What was particularly valuable in his confession of 24 May 1946 was his +assurance that he alone takes the guilt for youth, just as he formerly +assumed command. If this point of view is acknowledged as being right, +and if the necessary conclusions are drawn therefrom, this would be a +valuable result of this Trial for our German youth. + +May it please the Tribunal, I am now coming to the end of my survey of +the case of Von Schirach. In the treatment of this case I desisted from +making general statements, and especially those of a political nature. +Rather, I confined myself to the appreciation of the personality of the +defendant, his actions and his motives. + +In this connection I should like to add, to complete the picture, that +these considerations and this appreciation by the Defense have shown +that the Defendant Von Schirach is not guilty in the sense of the +Indictment and cannot be punished, for he did not commit a punishable +act, since you as judges will not judge political guilt but rather +criminal guilt in the sense of the penal code. + +At the end of my remarks in the case of Von Schirach I should like to +have the privilege of making a few general statements, not immediately +connected with the personality of Schirach, but suggesting themselves to +a German defense counsel at the end of this Trial. + +May it please the Tribunal, you are the highest tribunal of our times; +the power of the whole world stands behind you; you represent the four +mightiest nations on earth; hundreds of millions of men, not only in the +defeated countries, but also in the victorious nations listen to your +opinions and anxiously await your judgment, ready to be taught by you +and to follow your advice. + +This high authority affords you, Gentlemen, an opportunity of doing much +good through your verdict and particularly through the statement of the +basis for the judgment, in order that out of today’s disaster the way to +a better future may be found for the benefit of your own people and for +the good of the German people. + +Today, Gentlemen of the Tribunal, Germany lies beaten to the ground, a +poor people, the poorest of all. The German cities are destroyed; German +industry is smashed to pieces; on the shoulders of the German people +rests a national debt representing many times the entire national wealth +and spelling want and poverty, hunger and slavery, for many generations +for the German people if your peoples do not help us. The findings +supporting your verdict will in many respects point the way and give the +help needed to emerge from this desperate plight. + +To be sure, for reasons of sentiment it may be hard for you to consider +this point of view and to take it into account when you think of the +misfortune which the past six years also brought to your own countries. +It becomes doubly hard, because for months this Trial has revealed +nothing but crimes, crimes committed for a great number of years by a +German tyrant misusing Germans and the name of this same German people +of whose future you as judges are now asked to think benevolently and +whom you are now required to help. + +May it please the Tribunal: Hitler is dead—with him his tools who in +these years committed crimes without number tyrannizing Germany and +nearly all of Europe and disgracing the German name for generations to +come. The German people on the other hand live, and must be allowed to +live if half a universe is not to fall into ruins. + +With this Trial and during this epoch, the German people are undergoing +a very serious operation. It must not bring death; it must bring +recovery. Your verdict can and must make a contribution in that +direction, so that in the future the world may not see in every German a +criminal, but revert again to the concept of Professor Arnold Nash of +the University of Chicago, who a few days ago, when questioned about the +purpose of his present trip to Europe, replied: “Every scientist has two +fatherlands, his own and Germany.” These words ought to be a warning +also for all of those irresponsible critics who even today see it as +their task, with propaganda means of every sort, to stir up feeling +against everything German and to tell the world that at least every +other person in Germany is a criminal. + +You, as impartial judges, will not wish to forget one thing: There +always was and there still is today another Germany, a Germany that +knows industriousness and economy; a Germany of Goethe and Beethoven, a +Germany that knows loyalty and honesty and other good qualities which in +past centuries were proverbial for the German character. Believe me, +Gentlemen of the Tribunal, in this epoch, when Germany is regaining +consciousness as after a severe illness, as she proceeds to rebuild a +better future from the ruins of an evil past, a future for her youth +which has no part in the crimes committed, at this time some 70 or 80 +million German people are looking to you and are awaiting from you a +verdict which will open the way for the reconstruction of German +economy, the German spirit, and true freedom. + +You are, Gentlemen, truly sovereign judges, not bound by any written +law, not bound to any paragraph, pledged to serve your conscience only, +and called by destiny to give to the world simultaneously a legal order +which will preserve for future generations that peace which the past was +unable to preserve for them. A well-known democrat of the old Germany, +the former Minister Dr. Diltz, said in a recent article on the Nuremberg +Trial: In a monarchist state justice would be administered in the name +of the king; in republics courts would pronounce their rulings in the +name of the people; but you, the Nuremberg Tribunal, should administer +justice in the name of humanity. + +It is, indeed, a wonderful thought for the Court, an ideal aim, if it +could believe that its verdict could in fact make real the precepts of +humanity, and that it could prevent Crimes against Humanity for all +time. But in certain respects this would still remain an unsteady +foundation for a verdict of such magnitude as confronts you, because +ideas on what humanity demands or prohibits in individual cases may +vary, depending upon the epoch, the people, the party concepts according +to which one judges. + +I believe you may find a reliable foundation for your verdict when you +revert to a maxim which has endured throughout the centuries and which +certainly will remain valid in ages to come: _Justitia est fundamentum +regnorum_. + +Thus the German people, and with them the entire world, await from you a +judgment which will not just be hailed today by the victor nations as +the final victory over Germany, but which history will recognize as +proper; a verdict in the name of justice. + +THE PRESIDENT: I call on Dr. Servatius for the Defendant Sauckel. + +DR. SERVATIUS: Mr. President, may it please the Tribunal: + +The Defense of the Defendant Sauckel has, in the first place, to deal +with the charge of “slave labor.” What is slave labor? + +One cannot accept this as an established term comprising all the +occurrences which, in bewildering abundance, are charged against the +Defendant Sauckel under the heading “slave labor.” Particularly, those +actions ought first to be examined from a legal point of view. The legal +basis for this examination is the Charter. However, this Charter does +not say what is to be understood by “slave labor” or by “deportation.” +Therefore, these concepts must be clarified by interpretation. Article 6 +of the Charter deals in two passages and from two different points of +view with deportation and slave labor. Deportation is designated both a +war crime and a crime against humanity, and forced labor appears as +“slave labor” under the heading of War Crimes, and as “enslavement” +under the heading of Crimes against Humanity. + +The question of under what heading the mobilization of labor by the +Defendant Sauckel should fall is of decisive importance; if it is a war +crime, then it should be judged exclusively under martial law. If it is +a crime against humanity, then the latter presupposes the commission of +a war crime or of a crime against peace. + +It follows therefrom that the deportation mentioned in Article 6(b) +cannot be the same thing as deportation according to Article 6(c), nor +can forced labor according to Article 6(b) be identical with forced +labor under Article 6(c). The difference between the two kinds must be +found in ... + +THE PRESIDENT [_Interposing_]: That paragraph of your speech which is in +English on Page 2, the second paragraph: + +“It follows therefrom that deportation mentioned in Article 6(b) cannot +be the same as deportation according to Article 6(c) ...” is not +altogether clear to the Tribunal. Could you make it clearer? + +DR. SERVATIUS: In Article 6(c) we deal with Crimes against Humanity, +whereas in Article 6(b) we deal with War Crimes. In both articles the +expressions deportation and forced labor are used, but there must be +some differentiation, and my examination is directed at establishing +this difference more exactly. I believe, Mr. President, that my further +statements will make this clearer than it has heretofore been. + +I turn now to the terminology used in the Charter. I was talking of the +difference between the two kinds of slave labor and deportation. The +difference between the two kinds is to be found in the fact that +something has to be added to the war crimes which violates the rules of +humanity. + +The correctness of this interpretation may also be recognized in the +terminology of the Charter, however fluctuating it may be. For instance, +the Russian text for deportation as a war crime chooses the word _uvod_, +which means only removal from a place, whereas, on the other hand, it +uses for crimes against humanity of the same nature the technical +expression _ssylka_, by which penal deportation under the rule of the +czars is understood as denoting deportation in the sense of penal +deportation. + +THE PRESIDENT: The French is not coming through. Will you just wait a +minute, there is some difficulty with the French translation, Dr. +Servatius. The Tribunal must adjourn. + +MARSHAL: The Court will remain adjourned until a quarter to two. + + [_The Tribunal recessed until 1345 hours._] + + + + + _Afternoon Session_ + +DR. SERVATIUS: I was speaking of the terminology of “deportation” in the +Russian text. I pointed out the distinction between the word _uvod_ +meaning only transportation, and _ssylka_ meaning a deportation as a +form of punishment. From that one may conclude that deportation from the +occupied territories for the purpose of work can only be regarded as a +war crime, while it becomes a crime against humanity when assuming the +penal character of a transportation of prisoners. + +However, the question arises whether, beyond this, according to the +Charter any removal of the population is punishable as a war crime, +regardless of whether it occurs for allocation of labor or for other +reasons. According to the text of the Charter, the latter seems at first +sight to be the case, since it renders punishable “removal for slave +labor, or for any other purposes.” Upon closer examination, however, it +becomes evident that this rule cannot be meant in such a sense, as there +are cases in which a removal is not only consistent with international +law but even becomes imperative. + +Accordingly, the Charter could only be understood to mean that the +punishable act does not consist of plain “removal” but comprises the +composite concept “removal for slave labor” and “removal for any other +purpose.” The clause, “or for any other purpose,” should be understood +so as to mean only that an illegal purpose equivalent to slave labor +exists. If removal of any kind was to have been made punishable, then +the qualifying addition “for slave labor or for any other purpose” would +be contradictory to common sense. This definition is important for the +Defendant Sauckel, as otherwise proof of deportation classified as a war +crime would be evident from the acts admitted by him. + +Just as for the various kinds of deportation, the difference between the +kinds of slave labor, according to the Charter, must be clarified. Here, +too, a clue to the interpretation is provided by the terminology of the +different languages, though not because of their clarity and consistency +but by the very opposite: + +The English version speaks of “slave labor” as a war crime and of +“enslavement” as a crime against humanity; the French version states +_travaux forcés_ and _réduction en esclavage_, the Russian version +accordingly _rabstvo_ (slavery) and _poraboshtshenie_ (enslavement). It +is not discernible how the terms chosen differentiate _in re_. Basing +upon the fact that labor inconsistent with laws of humanity must be +carried out under more severe conditions than other labor and assuming +“slave labor” to be the severest forms of labor, it will be seen that no +definition can be derived from this terminology of the Charter and that +more of an ethical discrimination and stigmatization is intended. + +Accordingly an objective division of the kinds of labor should be +carried out independent of the terminology by considering exclusively +the degree of severity of labor conditions. If one tries to analyze the +terminology used, one finds the designation “enslavement,” _esclavage_, +and _poraboshtshenie_ for the inhuman form of labor, whereas the labor +not inconsistent with laws of humanity is called “forced labor,” +_travaux forcés_, and _prinudidjenaja rabota_. Slave labor (“slave +labor,” _travaux forcés_, and _rabstvo_) consequently is the general +term comprising both kinds. + +What does this definition mean for the defense of the Defendant Sauckel? +He admits having negotiated “compulsory labor” in the form of obligatory +labor which, as stated before, has been termed “slave labor” in general. +He denies, however, having demanded “slave labor,” which might be looked +upon as inhuman labor, in other words, enslavement. A different standard +applies, just as for deportation, to these two categories; “obligatory +labor” is only a war crime and must be judged according to the rules of +war; crimes against humanity, as I already stated above in connection +with deportation as a crime against humanity, bear the additional +characteristics of being connected with war crimes or crimes against +peace. If it can be proven that the mobilization of manpower as ordered +by the Defendant Sauckel was permitted by the rules of war, then the +same act cannot be held to be a crime against humanity. + +The Indictment, too, has made a difference as to the kinds of labor. It +has treated, under Paragraph 3, Section VIII (H), as a separate war +crime under the title of “Conscription of Civilian Labor,” the +mobilization of manpower as directed by the Defendant Sauckel, which I +shall call “regulated labor mobilization,” and mentions only “forced +labor.” The French version speaks here of _travaux forcés_ and uses +terms such as _les obligèrent à travailler_ and _mis en obligation_; the +Russian version follows this and also speaks only of “compulsory labor” +as _prinuditjelnaja rabota_ but does not refer to this as being slave +labor. + +The Defendant Sauckel does not deny the facts taken here as a basis, but +I shall submit the legal reasons which justify this mobilization of +labor, and I shall prove that it does not involve any war crime that +would break international law. + +The rules of international law are authoritative in determining the +question whether “regulated labor mobilization” is a war crime. The +Charter cannot prohibit what international law permits in wartime. Such +precepts of international law are laid down in the agreements on the +rules of war and in the general legal principles and usages as applied +by all states. + +The Prosecution bases its opinion that labor mobilization is a war crime +on the definitions of the Hague Convention on Land Warfare, as well as +on the agreements and rules of war and the criminal codes of the +countries concerned. If it is shown that labor mobilization is permitted +by international law, then a judicial inquiry into the penal regulations +is, of course, not necessary. + +The Hague Convention on Land Warfare can be considered as a basis for +the laws of warfare with which we are concerned here. Whether it was +recognized by all the states involved here is, from a practical point of +view, of little importance, for inasmuch as it was not recognized or +cannot be directly applied, it is a case of a shortcoming in +international law which is filled as a matter of course according to the +principles of the belligerent’s needs and his duty to respect the laws +of humanity. The principles of international law as established in the +Hague Convention on Land Warfare are in all cases an important guide. + +The Prosecution quotes, in the first place, Article 46 of the Hague +Convention on Land Warfare, which is designed to safeguard the +fundamental rights of the population. It is typical for labor +mobilization that it does restrict liberty, whereas this particular +basic right is not protected by this article. + +If the Hague Convention on Land Warfare is examined for a definite rule +concerning deportation and forced labor, it will be realized that no +such regulation exists. Just as in the sphere of air warfare and the use +of new weapons, the Hague Convention on Land Warfare could not deal with +questions which, at the time of its drafting, were far from the mind of +the contracting parties. The first World War was still fought between +two armies with already prepared material, and after it was used up the +fight would be ended. The idea of a long war consuming huge amounts of +material and requiring a continuous production with all available labor +was for the Hague Convention on Land Warfare not yet a problem ripe for +discussion. + +Article 52 of the Hague Convention on Land Warfare, which deals with the +right to requisition, touches on the matter; but it can be seen that the +rules deal only with purely local requirements of an army which appears +fully equipped and has only supplementary local requirements. It is +characteristic for the purely local meaning that the requisitioning +authority is entrusted to the local commanders, in contrast to Article +51 of the Hague Convention on Land Warfare which permits only an +independent commanding general to impose compulsory contributions. The +literature about the right to requisition in international law +accordingly quotes only examples of local significance. + +Although Article 52 of the Hague Convention on Land Warfare can +accordingly not be directly applied, its basic principles are +nevertheless binding on the belligerents. The basic idea is that an army +can demand practically everything necessary for the satisfaction of its +requirements. There are only two limitations: It may not take more than +it needs and not more than is compatible with the resources of the +country. + +The idea of a local obligation to furnish services will have to be +adapted to modern warfare. The Hague Convention on Land Warfare +envisaged the employment of smiths and wheelwrights necessary for the +maintenance of the equipment of the army; work within the home country +of the occupying power was, in view of undeveloped transportation +conditions, impracticable and remained unconsidered. + +Today the necessary work will no longer be done in the vicinity of the +front-lines but must be carried out in the belligerents’ own countries, +so that it must be possible to demand that labor should be available at +the only place where it can be done and where it is necessary. It must +also be possible to demand such labor for modern war requirements of +mass production for current replacements. What is necessary at any given +time can be asked for, the amount depending on prevailing conditions. If +in earlier times, according to the principle “the war feeds the war,” an +army far removed from its homeland was even to a large extent equipped +in occupied territory, it must surely be possible today to supply the +army by moving the workers to the factories in the belligerent’s own +country. The evolution of the laws of warfare is influenced by the +requirements which these laws have to serve. + +With the basic idea of the obligation to furnish services the basic idea +on limitations will have to be accepted, too. These limitations must +also be interpreted to apply to the changed conditions. While the +obligation to furnish services is justified, no more work may be +demanded than the occupying power requires of its own people at home. +The intensity of the war as total war must be taken into consideration. +The obligation to work may thereby assume considerable proportions. + +The meaning and the purpose of the Hague Convention on Land Warfare is +certainly not to place the nationals of a defeated state in a better +position than those of the victorious state which occupied the country. +This, however, would be the result if the Hague Convention on Land +Warfare were interpreted according to its original wording. If this is +maintained, then France, which had surrendered unconditionally together +with all the other occupied countries, would have been able to look on +in security while Germany, strangled by the blockade, was exhausting +herself in an indefatigable struggle by sacrifices of life and property. +Can one really demand that the prisoner in a besieged fortress should +live more comfortably than the defender of the fortress? If Germany +today could live according to the romantic concepts of the Hague +Convention on Land Warfare, this would certainly be preferable to the +burden of the peace treaty to be expected. + +Actually, the Hague Convention on Land Warfare has not been adhered to +even in its original interpretation, if it is true that already before +the conclusion of the armistice the Soviet Union as occupying power +transferred the population on a large scale from the eastern parts of +Germany for the purpose of performing labor outside Germany. The +Tribunal could obtain official information about this through an inquiry +with the Control Council. I also have information that German civilian +internees are used for work in France today. Here too the Tribunal could +obtain official information. + +The second limitation of the obligation to work is embodied in the rule +that no participation in war operations against the home country of the +worker may be demanded. Any work done for the occupying power indirectly +benefits its war effort; the prohibition is therefore restricted to +direct participation in operations of the fighting force. The literature +on international law contrasts the participation in military operations +with the permissible participation in preparations. Participation in war +operations in this sense was not asked of any worker; on the contrary, +the purpose was to employ workers away from these operations and without +disturbance by the war. + +Consequently only such activity as is directed against the workers’ own +country is forbidden, thus taking the feelings of the individual into +consideration. No protection of the enemy state is thereby intended. +Wherever, therefore, the individual renounces his country and in a +struggle of ideologies opposes the government of his country, such a +restriction no longer applies. In connection with this I wish to point +to the vast number of foreigners who adopted such an attitude and who, +in part, still live in Germany today. + +The same applies when the state to which the worker belongs has ceased +fighting. This question is of special importance with regard to the +obligation to work in the armament industry. The rules of the Geneva +Convention with regard to the work to be done by prisoners of war are +known. The basic notion, that no one may be forced to make weapons +against his own brothers, must apply to civilian workers also. + +The fact, however, that one’s country is no longer in a legal state of +war is one of the reasons that nullify this restriction. The need for +protection also ceases to exist when a country, though legally still +participating in war, to all intents and purposes no longer possesses +any fighting forces and has thus ceased to exist as a military object of +attack. The fact, that this country may have allies who fight for it +cannot arbitrarily extend this limitation beyond the terms of the Geneva +Convention; nor is it the duty of a subject of a given state to protect +allies fighting for it and to participate in the policies of his +government. + +Puppet governments cannot change reality. Recognition cannot be granted +to them unless they reappear as independent combatants under a command +of their own and are recognized as such. This applies to all states +defeated by Germany. + +At the time of the mobilization of labor only Britain, the United +States, and the Soviet Union were active combatants against Germany. +British and American subjects were not affected by this mobilization, +although citizens of the Soviet Union were in part used in armament +production. + +The legal position of citizens of the Soviet Union is however +fundamentally different. Under Document Number EC-338, USSR-356, the +Prosecution has submitted a decree by the People’s Commissars dated 1 +July 1941. This decree deals with the utilization of prisoners of war +for labor purposes; but it also, however, refers to the employment of +interned civilians. According to the wording, armament production is not +forbidden for either category of workers; and only two limitations are +specified in the decree, namely, work in the combat zone and services +required of an orderly. + +Thus, from the point of view of reciprocity, no objection can be raised +against the employment of Soviet citizens in armament production. In his +examination before the Tribunal the witness General Paulus stated that +prisoners of war were employed in factories of the Soviet Union, which +means that in a state with a directed economy they were employed during +the war in the armament industry. According to the decree it must be +assumed then that these workers were also employed in the production of +weapons. + +The significance of such a violation of the principle that armament +production shall be forbidden lies in the serious consequence that no +formation of a generally recognized rule of international law in this +new field of utilization of manpower can thereby be proven. Under these +circumstances therefore Germany was likewise free to employ workers of +the Soviet Union and workers of all other states in armament production. + +The Hague Convention on Land Warfare thus does not forbid the regulated +utilization of manpower, but there are also further international +aspects permitting such a utilization of manpower. The assent of the +government of the occupied state is of primary consideration. This +assent was given by France. The objection that Marshal Pétain’s +Government was not a constitutional government is invalid, for it was +the legitimate successor to the provisional armistice Government. That +it represented the French State with foreign governments is of decisive +consideration in international relations. This authority of +representation was confirmed by the United States by its keeping an +ambassador in Vichy even after its own entry into the war. Great Britain +also negotiated the terms of an armistice with a general of the Vichy +Government in Syria in 1941. + +This Government once recognized could not be deprived of its legality by +the simple declaration of an oppositional government, even though the +latter might have been recognized by the Allies. A government loses its +international position only if it is forced to transfer its actual power +to the oppositional government. Up to that moment it retains authority +within its sphere of influence. + +The other objection that the Government of Marshal Pétain was not free +to act as it wished and that consequently agreements with Germany in the +field of utilization of manpower were reached by coercive measures and +are therefore invalid, is not justified from the point of view of +international law. Armistice and peace treaties are always concluded +under great pressure. That this does not curtail the validity of such +treaties is an obvious point of international law. This has constantly +been emphasized when refusing German demands for a revision of the +Treaty of Versailles. + +Agreements which are reached in periods between the armistice and the +peace treaty are subject to the same conditions. This also applies to +the agreement with France with respect to the utilization of manpower. +Thus, if—contrary to the statement of the Defendant +Sauckel—negotiations about the utilization of manpower were conducted +in the form of an ultimatum, there could from the point of view of +international law still be no reason for an objection. Besides, +Sauckel’s influence surely cannot have been so great that he could have +exerted an excessive amount of pressure. + +The validity of such agreements is open to doubt only under very special +conditions, such as would mean that excessive obligations were to be +assumed which obviously violate principles of humanity; for instance, if +the agreements contain a clause stating that work must be performed +under slave-like conditions. + +The motive for these agreements was, however, to offer, especially to +the French workers, favorable working conditions and salaries for their +obligatory labor in Germany, thus to attract the workers. + +Military reasons too can command the evacuation of an occupied territory +by part of the population and thereby cause a displacement of manpower. +This may happen when the population participates in partisan warfare or +is active in resistance groups and thus endangers security instead of +behaving obediently and peacefully. It even suffices for the population +in the so-called partisan territories to be drawn upon even against its +will for the support of the partisans. That such conditions were +organized by Germany’s enemies as combat measures in an increasing +degree, first in the East and later in the West, is today looked upon as +a patriotic achievement. In view of this one must not forget that the +resulting displacement of workers was precisely the consequence of their +activities and that such action was permitted by international law. +Evacuation had to be carried out in the interest of security, and +assignment of labor elsewhere was necessary if only to maintain order. +It is the privilege of the occupying power to utilize this labor within +a regulated state economy in the manner deemed most appropriate under +the prevailing conditions. Similar measures might also be imposed in +areas of retreat after it had been ascertained that the male population +illegally took part in hostilities during the retreat, as it had been +called upon to do by the enemy, sometimes even being supplied with +weapons. + +Evacuation measures for the security of combat troops are equally +permissible under international law. To engage persons evacuated from +the combat zone in new work is not only legal but is actually the duty +of the occupation administration. The state which calls upon its +subjects to fight and thereby intensifies combat, bears the guilt for +such evacuation. The necessary retaliatory measures therefore must be +legal. + +Whenever such evacuations become necessary, they must be carried out +without undue suffering for the population. For this preparatory +measures, which alone can avoid unnecessary hardships, are necessary. +That is the duty of administration as laid down in Article 43 of the +Hague Convention on Land Warfare. Thereto appertain the proposals made +by Sauckel for the evacuation of territories of retreat in France in the +event of invasion (Document 1289-PS). These proposals did not +materialize and cannot therefore incriminate the Defendant Sauckel. + +This administrative duty may also call for a displacement of labor in +order to avoid unemployment and famine. This, for example, occurred when +the industrial areas of the Soviet Union were occupied, where there were +no more working possibilities after the population became unemployed +following the scorched earth policy adopted by the Soviet Union, and +supplies failed to arrive because of transport difficulties. + +These military and administrative points of view of international law +can invalidate a number of reproaches; but they do not answer the basic +question, namely, whether the enlistment of workers is also permitted +outside the Hague Convention on Land Warfare for the very purpose of +intensified labor to enable the state to carry on the war through +increase of production and to allow it to release its own workers for +service at the front. + +A purely military emergency would provide no excuse for disregarding +international law. Victory jeopardized must not be sought by breaking +the law when in distress, because the laws of warfare are intended to +govern that very combat, which is of necessity connected with distress. +International law inclines differently where it is a case of a measure +to be taken to safeguard the existence of the state. That is a law of +self-preservation which every state is entitled to because higher +institutions are lacking which could protect it from destruction. + +It has repeatedly been stressed by all concerned that in this war our +existence was at stake. This became evident for Germany after the fatal +battles on the Eastern Front in the winter 1941-42. Whereas up to that +time no wholesale employment of foreign labor had been necessary, new +equipment now had to be produced immediately. The German labor reserves, +were depleted due to the drafting of 2 million workers for service at +the front. The employment of unskilled women and young people could not +immediately relieve the situation. During the later stages of the war, +especially through aerial warfare, armament demands increased to such an +extent that, in spite of the increased employment of women and young +people, the level could no longer be maintained. The means were +exhausted. + +The official figures which the Defendant Sauckel made public in his +speech in Posen in February 1943 (see Document 1739-PS) proved that +already in 1939, at the beginning of the second World War, more than +twice as many women were being employed than at the end of the first +World War and that their number at the end of the second World War had +increased by another 2 million to a total of over 10 million. This +figure exceeds the entire number of male and female workers in the +armament industry at the end of the first World War. Yet in spite of +that there was a shortage of labor. This has been confirmed by the +witness Rohland for Codefendant Speer in Document Speer-56, according to +which Speer also declared that foreign labor was needed under all +circumstances. + +The crux of the matter did not concern the problem of female labor, +where by introducing additional home labor the limit was attained, but +that of procuring specialists and men for heavy labor. Among the 10 +million German women who were at work, there were also the wives of +front-line officers and others from similar classes of society. + +The notion that in Britain the women were conscripted for work in a +higher degree than in Germany is wrong. In Germany the women had to work +up to 45 and later 50 years of age, and they actually worked in +factories and did not have fake jobs of a social kind. Even +schoolchildren beginning with the age of 10 were required to work, and +from 16 years onward they were switched to regular labor or occupied in +other services. Families were disrupted; schools and universities were +closed; pupils and students worked in the armament industry, and even +the wounded could not continue their studies. A grim fight was waged +over every person capable of work. Speer’s reserve of workers did not +exist. What efforts were made in this sector is shown among others by +Enclosure 2 of the Wartburg Document RF-810. + +Another point of view illustrating the necessity of employing additional +labor is the fact that the powers in possession of colonies brought +labor from their colonies; France (see Document RF-22, Page 17), for +instance, took in about 50,000 workers from North Africa and Indo-China, +which were under the command and supervision of officers and +noncommissioned officers. Since Germany, having been refused colonies +and on account of the blockade, was unable to draw upon such reserves, +she was entitled to some means, in her fight for existence, of procuring +labor where it could be found inactive in occupied territories. + +This is in outline the basis, with regard to international law, for +judging the regulated mobilization of labor as a war crime. One may, +with regard to certain points, differ in opinion; and it will generally +be found that in international law a uniform interpretation will not be +readily arrived at. The interests of individual members in the community +of international law play an important part and are not always +identical; legal principles are often not recognized because some state +does not wish to place itself officially in contradiction with its +former actions, or because it prefers to remain unbound for the future. + +As counsel for the Defense, I am in a position to present my +interpretation of law without such inhibitions. The significance of my +statement for the Defense, apart from the objective side, lies in the +fact that the Defendant Sauckel, subjectively, was for good reasons +entitled to believe in the lawfulness of a regulated mobilization of +labor and that to him his actions were not discernible as being in +contradiction with international law. This was supported by the +impression which the Defendant Sauckel could not but gain of the +permissibility of a regulated mobilization of labor, as shown by the +attitude of other superior offices. When Sauckel entered upon his +office, foreign workers had already been enlisted by individual action; +and he could take it for granted that the State would equally proceed in +a legal manner. None of the highest offices has ever raised legal +objections before Sauckel. These offices, both the competent Foreign +Office and the highest civil and military offices in the occupied +territories, accepted his orders as a matter of course; and no questions +of doubt on international law were raised. + +For the opinion of the Defendant Sauckel the attitude of the foreign +agencies concerned was necessarily of special importance, notably the +consent of the French and the Belgians, who came to Berlin personally +for discussions. From this resulted the good co-operation with the local +authorities in the occupied territories, as was the case before enemy +propaganda intervened. + +Whether cognizance of breaking a law is indispensable when committing a +crime against international law may be a moot point; but to establish +guilt leading to a conviction, cognizance of the realization of all the +criminal facts is essential. This includes cognizance of the fact that +the action performed was contrary to international law. The subjective +aspect of the facts, involving criminal guilt of the Defendant Sauckel, +cannot be proved in respect to application of the regulated mobilization +of labor. It would be impossible to commit the Defendant Sauckel for yet +another legal reason, even if the regulated mobilization of manpower +really were a violation of international law. According to the Hague +Convention on Land Warfare, no individual responsibility exists. The +Hague Convention on Land Warfare differentiates between two kinds of war +crimes; those which can be committed by an individual, such as murder +and ill-treatment, and those which can be committed only by parties in a +war. The regulated utilization of manpower is a proceeding which can +only be initiated by the state. While the individual action is punished +according to the penal code of the different states, a special +regulation was laid down for offenses committed by parties in a war in +Article 3 of the introductory agreement to the Hague Convention on Land +Warfare. This specifies only a liability for damages on the part of the +state. This passage of the Hague Convention on Land Warfare still +applies today, since it cannot be rescinded by agreement among the +Allies alone. The Charter, which specifies the immediate criminal +responsibility of the state organs or its executors, is void insofar as +it is contradictory to the Hague Convention on Land Warfare. + +I do not have to refer to the fact that Germany, as one of the parties +to the agreement, would have had to agree to the suspension of Article +3; there are other reasons which speak for a continuation of this +stipulation. A modification of the Hague Convention on Land Warfare in +the sense of the Charter might have resulted from the law of usage or +general custom due to changing legal conceptions. The presupposition for +this assumption would be, however, that the contracting powers +relinquish their sovereignty, since only then would the punishment of +the state organs be possible. However, such a renunciation of the rights +of sovereignty has not, as far as I am aware, taken place to such an +extent as would generally render such punishment permissible. With +regard to this point, I refer to the general statements made by +Professor Jahrreiss before the Tribunal. + +I shall now deal with the utilization of manpower as a crime against +humanity. If a regulated utilization of manpower appears permissible +according to international law, there remains the problem of the method +of its execution, namely, the question of up to what point this +utilization of manpower can still be regarded as in order and when it +will exceed the permissible limit. + +The Charter fails to define the concept of humanity. As far as +international law is concerned, the term can only be transposed from the +practice of the nations. In endeavoring to establish the limit for +actions permissible under international law, we must, for the sake of +comparison, mention the bombing of large cities and the use of the +atomic bomb, as well as deportations and evacuations as still in +progress today. These are all incidents which have occurred before the +eyes of the world and were regarded as permissible by the executing +countries. + +Once again we are confronted with the conception of necessity and find +that it is being interpreted in a very flexible manner. This should be +kept in mind when examining the mobilization of labor as to any +violation of the principle of humanity involved. Its aim is not the +sudden killing of hundreds of thousands; however, it naturally entails +hardships and is certainly also subject to mistakes which arise +unintentionally or are due to the shortcoming of individuals. An answer +will be required to the question of whether deliberate killing does not +always weigh heavier than the temporary infliction of other sufferings. +Also, the Charter does not prescribe punishment for every violation of +the principles of humanity but only when inhuman treatment occurred in +the execution of, or in connection with, a crime for which the Tribunal +is competent. However, the Tribunal is competent only for Crimes against +Peace and for War Crimes. As for Crimes against Peace, inhuman treatment +may be admissible in self-defense, while it is punishable when committed +by an aggressor; or alternatively, it must be a case of a war crime. + +This does not apply when compatriots are ill-treated, for they are not +protected by the laws of warfare. Prosecution for an act against +humanity committed toward them can only take place if a crime against +peace is involved at the same time. + +From an objective point of view labor commitment furthered the waging of +the war which has been designated by the Prosecution as a war of +aggression or as a war violating treaties. If this is established and if +it is proved moreover that the mobilization of labor was carried out in +an inhuman way, then the requirements of the Charter will have been met +and a crime against humanity committed, regardless of whether the +mobilization of labor was allowed or not allowed by the rules of war, +since it was committed in connection with a crime against peace. But +punishment can be inflicted only if the culprit himself knows that an +unlawful war is being waged and that he is furthering it by his action. +Since the Defendant Sauckel denies any such knowledge, it must be +proved. + +The other possibility of meeting the factual requirement occurs when the +inhuman act serves to carry out a war crime or is connected with it. Of +the examples given by the Charter for violation of the rules of war, the +following in the main can be taken to apply to the mobilization of +labor: murder, ill-treatment, and deportation of the civilian +population. As shown by this enumeration, these war crimes are not, +however serious they may be, in themselves crimes against humanity. Some +aggravating circumstance making the act inhuman must be added. As shown +by the examples of inhuman “extermination” and “enslavement,” the acts +in question must be objectively of particular scope or cruelty. +Subjectively, however, an inhuman disposition of the culprit and the +knowledge of the inhuman character of the act, that is to say, knowledge +of the scope of the measure or of the cruelty of its execution, is +additionally required. How far these conditions apply to the Defendant +Sauckel must be investigated later on. A “regulated mobilization of +labor,” as allowed by international law can never in itself be a crime +against humanity; but its execution may be carried out in such a way +that it involves killings and ill-treatment, which for their part might +be war crimes. + +Such ill-treatment could result from regulations issued by the highest +authority involved, who thereby would bear the responsibility. It may, +however, also be committed by subordinate agencies acting on their own +authority without the knowledge or intention of their superior +authorities. In that case the head of the agency acting on its own +accord bears the responsibility. Lastly, it may be a case of a purely +individual act committed against the regulations in force. For such an +act the individual is solely responsible. + +It follows that the Defendant Sauckel is responsible, to begin with, +only for such general orders and instructions which he has given, not +however for independent acts by superior authorities in the occupied +territories or by supreme Reich authorities, such as the Chief of SS and +Police, which were not under his jurisdiction. The orders and directives +of the Defendant Sauckel have been submitted, and they must show whether +the mobilization of labor as ordered by him was in fact a regulated one +or was tantamount to an “ill-treatment” of the population. Apart from +the call for volunteers, mobilization of labor took place on the basis +of a compulsory service decree, signed as a legal measure in accordance +with Hitler’s instructions by the territorial commanders. The authority +to issue such laws exceeded the powers of the Defendant Sauckel, nor +could he ask that any such laws be issued. He did however approve of +them and made them the basis for his work. The contents of these laws +were consistent with the fundamental ideas of the German laws concerning +compulsory labor service. These laws were coercive. The use of coercive +measures is not called for as long as the legal authority of the +occupying power is acknowledged by the population; they become necessary +only when such authority fails. + +In this connection the Defendant Sauckel has repeatedly asked for the +maintenance of executive authority by operations in partisan-infested +territories for overpowering the resistance movement (Document R-124). +No legal objections can be raised against the fact that to this end he +demanded the use of means provided by the State. He is wrongly +incriminated only by the words “SS and Police,” which have been +connected by the Prosecution with the conception of crime. Such an +incrimination would only be justified if the criminal character of the +Police had been proven and if the Defendant Sauckel at that time had had +cognizance of such criminal activity. + +That force may be used in case of resistance against orders of the +occupation force cannot be disputed. The question is, where are the +limits of force and whether or not there are legal and illegal, +admissible and inadmissible, human and inhuman, measures of force. + +If fundamental laws are no longer deemed to be valid when a state of +siege is declared within a state, surely this will apply all the more to +a power occupying another country in wartime. Anyone who refuses to +carry out the orders of the occupying power knowingly participates in +the fight to which he is not entitled and has to accept the +consequences. Obedience is the primary duty toward the occupying power; +and where patriotism and obedience are conflicting issues, the law +decides against patriotism. The punishment meted out is, as such, not +subject to any limitation; and the threats of punishment by an +occupation power are, for purposes of intimidation, usually extremely +severe. The question is whether there exists a limit, from the +standpoint of humanity, which prohibits punishment in excess of the +legitimate purpose which may be considered unwarranted. Orders like the +burning of houses, which were issued independently by subordinate +offices in connection with the recruitment of labor, must be examined +from this point of view. + +This question is not easy to answer, if one bears in mind the special +underlying circumstances and realizes that it was a case here of an open +struggle between the occupying power and the population, with official +support from the enemy. In case of uprisings and organized general +resistance one cannot disclaim the applicability of the military laws as +practiced by the combat troops. Necessity alone must be the decisive +factor in this case. International law has put only one limit to +coercive measures in forbidding, in Article 50 of the Hague Convention +on Land Warfare, collective punishment of an entire population for the +deeds of individuals for which the population cannot be held partially +responsible. It is essential that such partial responsibility shall have +been established by actual events and not construed through orders. It +is not specified wherein collective punishment may consist. The +limitations of humanity, as I already pointed out, must be respected, +but in war this is a vague conception; necessity and practical value +must always have preference. + +Next to the manner of recruiting labor, the conditions of work may +represent an ill-treatment which can be looked upon as a war crime. On +principle, there can be no question of ill-treatment whenever the +foreign workers are generally treated in the same way as the workers of +the home country. Different treatment is only permissible when special +circumstances justify it. Whereas generally foreign workers work on the +same level as the Germans, the so-called, Eastern Workers were +discriminated against. The most striking difference here was the +limitation of freedom. If this had been arbitrary, that would be +sufficient reason for declaring this to be ill-treatment. But the +reasons for this limitation of freedom were not arbitrary; they were +conditioned by the State’s need for security. During wartime the +presence of an enemy alien in the country always represents a danger, +and it is for that very reason that originally the bringing in of +foreign workers had been dispensed with. Only when necessity demanded +the utilization of foreign workers did the need of security have to be +taken into account simultaneously. The measures to be taken will depend +upon the danger, which will vary according to the attitude of the alien. +Whereas police measures with regard to the French were almost +imperceptible, the Eastern Workers were in the beginning kept under +supervision in camps. + +The natural interest of the state lies in attaining security by winning +the aliens over inwardly because their collaboration is desired. This +will never be achieved by depriving them of their freedom. As long as +the attitude of the alien cannot be clearly assessed, especially if he +be like the citizens of the Soviet Union, propagandistically trained, +more stringent control may be necessary. However, it must not develop +into permanent captivity, and should at most constitute a sort of +quarantine. To deprive people without guilt of their liberty for an +extended period is not admissible, because that would correspond to a +forbidden collective punishment. The mere assumption of danger is not +sufficient to justify such limitations; there must be certain acts which +show that such foreign workers appear dangerous even under normal +working conditions. The custody of Eastern Workers behind barbed wire +and without permission to go out, as ordered by Himmler, must be +regarded as ill-treatment if it is a permanent practice. + +The Defendant Sauckel, guided by a feeling that in this matter the +limits of the permissible had been overstepped, immediately took steps +against this and in a tough fight against Himmler demanded and obtained +the withdrawal of barbed wire and the prohibition to go out, as can be +seen from the ensuing decrees, Document Number Sauckel-10, Exhibit +USA-206. + +Where in spite of later arrangements the old methods were still applied +by the police, Sauckel always intervened whenever he heard of such +occurrences. This has been confirmed repeatedly by witnesses. I refer +particularly to Exhibit Sauckel-10, the statement by the witness Goetz. + +Another controversial point was the identification by a badge “Ost,” +which was maintained until 1944 and then replaced by a national +insignia. This identification of the Eastern Workers, who were free to +move among the population, was necessary for security reasons. This +cannot be considered ill-treatment. The distaste for this sign shown by +the Eastern Workers was chiefly due to the defamation of this badge by +propaganda, and the Defendant Sauckel always tried to change this +insignia and to replace it by a national insignia such as the other +workers wore voluntarily. He finally prevailed here also against Himmler +(Document RF-810, Page 12). + +Equality must also exist between a nation’s own workers and foreign +workers with regard to the rules concerning maintenance of discipline. +With all belligerent states the war has raised the same problem as to +how to deal with those workers who do not properly fulfill their work +duties; that is to say, slackers, shirkers, and saboteurs. The practice +of discharge, common in peacetime, is ineffective during war; on the +other hand, deserters from work cannot be tolerated today by any +belligerent. In cases amounting to sabotage, police and penal measures +were called for, the principal one being a short term in a labor +training camp; in certain extreme cases, imprisonment in a concentration +camp was inflicted. Document 1063-PS, RF-345, shows the similarity in +the execution of the regulations as applied to Germans and foreigners. + +Such police measures, which are caused by disloyal conduct of the +worker, are justified. The Wartburg Document RF-810 shows in the report +of the expert Dr. Sturm that such measures were carried out on a very +moderate scale and that only 0.1 to 0.2 per thousand were thus punished. + +Hence it follows that the issue of regulations concerning the +maintenance of discipline is not yet in itself an ill-treatment which +might form the basis for a crime against humanity. Such ill-treatment, +however, can consist of excesses such as did occur outside the +competence of the Defendant Sauckel. He can only be held responsible for +those if he himself was subjectively to blame in that he knew of such +excesses and approved of them although he might have prevented them. + +In summing up one can say that the “regulated mobilization of labor” is +permissible in international law and that restrictions imposed on +workers within the limits of necessities must be permitted for reasons +of state security. On the other hand, excesses in carrying out the +regulations must be looked upon as ill-treatment and may amount to +crimes against humanity. Responsibility for those rests with whoever has +instigated them or who, within the sphere of his competence, failed to +prevent them in the performance of his duty. When measuring the grave +charges brought against the Defendant Sauckel by the standards of the +aforesaid legal considerations, it will be necessary first of all to +single out those fields in which the evidence reveals him to be +absolutely clear of any responsibility. + +In the first place, it is not proved that the Defendant Sauckel can be +connected with the biological extermination of the population. His whole +interest, as has been shown, pointed toward the opposite direction, +since his purpose was to obtain people as laborers. He had nothing to do +with migration measures and any methods used in that respect. + +Work in concentration camps was just as far removed from the Defendant +Sauckel’s responsibility. Himmler’s speech in Posen in October 1943 +(Document 1919-PS, Page 21) reveals that the SS had erected gigantic +armament plants of their own. We know that Himmler covered his extensive +labor requirements by despotic arbitrary arrests of persons in occupied +territories. Inside Germany he had workers engaged in regular employment +arrested on insignificant pretexts and brought to concentration camps, +fraudulently using the regular labor offices. This is clearly shown in +Document 1063-PS, containing a letter dated 17 December 1942 as well as +a letter dated 25 June 1943, in which a requirement of 35,000 prisoners +is signified. Moreover, no correspondence with reference to +concentration camp labor ever passed through Sauckel’s offices. As an +example, I refer to Document 1584-PS containing some correspondence with +Himmler’s department. The Defendant Sauckel’s name is never mentioned +with reference to a conscription of prisoners, and the witnesses have +unanimously stated that the Defendant Sauckel had no connection with +these matters. This is also confirmed by the statement of the Director +of the armament ministry’s Labor Office, Schmelter, who received the +prisoners required direct from Himmler. + +Another field which must be eliminated is the conscription of Jews for +labor. This formed a part of labor conscription of concentration camp +prisoners; it was Himmler’s own personal secret sphere. This is revealed +for instance by Document R-91, in which Himmler’s service orders the +arrest of 45,000 Jews as concentration camp prisoners. + +By the production of Document L-61 the Prosecution has attempted to +convict Sauckel of a share of guilt in this field. This document is a +letter, dated 26 November 1942, from Sauckel’s office to the presidents +of the provincial labor offices, stating that by agreement with the +Chief of the Security Police and SD, Jewish workers remaining in the +plants must be withdrawn and evacuated to Poland. As a matter of fact, +this letter actually confirms that Sauckel had nothing to do with Jewish +labor in the concentration camps, since Jewish workers were withdrawn +from his department under the very pretext of evacuation. The measure is +indeed solely concerned with the purely technical matter of excluding +the Jewish laborers and replacing them by Poles, an operation which +could not have been carried out without the participation of Sauckel’s +office. + +This letter is in continuation of a correspondence which can be traced +back to the period prior to Sauckel’s assumption of office, and Document +L-156 subsequently deals with the same technical operation. The +unimportant character of the matter is attested by the fact that these +letters were not sent from the Defendant Sauckel’s head office in the +Thüringerhaus, but from an auxiliary office in the Saarlandstrasse. The +Defendant Sauckel disclaims knowledge of this correspondence and points +out that the letters do not bear his original signature but were, +according to the routine of his service, made out in his name just +because they were of minor importance. The fact that the letters begin +with the routine business term of “by agreement with,” instead of “by +consent of,” the Chief of Police and SD does not mean that they refer to +an agreement reached, but simply points to the agency in charge of the +matter. + +Next, reference has been made to “extermination by labor.” However, +Documents 682-PS and 654-PS, dated September 1942, unmistakably show +that this is a case of a secret maneuver of Himmler and Goebbels in +co-operation with the Reich Minister of Justice, Thierack. The Defendant +Sauckel is not involved. + +Neither was the conscription of workers for the Organization Todt under +Sauckel’s responsibility. The accusations proceeding from Document UK-56 +in this respect, bearing upon labor conscription methods in the Channel +Islands, do not therefore concern him. The documents do not show that +the Defendant Sauckel was aware of these proceedings or that he could +have prevented them. This separation between the Defendant Sauckel’s +labor jurisdiction and the Organization Todt is confirmed in Document +L-191, the report of the International Labor Office in Montreal. + +The enlistment of labor by civil and military departments is another +chapter. This was to a certain extent carried out as “pirate” +mobilization and kept secret from the Defendant Sauckel, because he +opposed these practices and endeavored to prevent them by all means. +Occasionally he was by-passed by higher orders. In this category there +is labor enlistment by the SS, the Reichsbahn, Air Force construction +battalions, Speer’s transport and traffic units, fortification and +engineering staffs, and other services. + +The exclusion of these aspects from the scope of the Indictment should +exonerate Sauckel all the more since in these cases his directives did +not apply. + +Document 204-PS illustrates in this respect the circumstances in which +transport auxiliaries were produced in White Russia. Document 334-PS +shows the same with regard to the execution of an independent drive for +Air Force auxiliaries, which cannot be held against Sauckel. The +commitment of adolescents, known as the Hay Action, according to +Document 031-PS of 14 June 1944, remained outside Sauckel’s jurisdiction +and activities, as becomes clear from the document itself. The 9th Army +together with the Eastern Ministry were the originators. + +A letter from the Codefendant Rosenberg to Reich Minister Lammers of 20 +July 1944 (Document 345-PS) falsely refers to the “agreement” of the +Plenipotentiary General for the Allocation of Labor; on the other hand +it states that the Defendant Sauckel was not connected with an SS helper +action and that he refused co-operation in this affair. According to +this, as stated by Document 1137-PS of 19 October 1944, a special office +in the Rosenberg Ministry with its own personnel attended to the seizure +of juveniles. The Defendant Sauckel’s agency was by-passed and labor +furnished directly to the armament industry. + +In circumvention of the Defendant Sauckel’s agency certain measures also +took place which Hitler caused by direct orders to the local offices of +the Armed Forces and of the civil administration; this for instance +applied to the labor commitment ordered in the occupied territories for +the fortification of the Crimea (Document UK-68). + +The enlistment of labor in Holland, which was carried out by the Armed +Forces against the protest of the labor service offices, is another of +these cases; this is shown in Document 3003-PS and is confirmed by the +Defendant Seyss-Inquart. + +An important sector, which is beyond the Defendant Sauckel’s +responsibility, embraces all the actions undertaken as punitive measures +against partisans and resistance groups. These are independent police +measures; I already spoke about their judicial evaluation. Whether they +were admissible and could be approved depends on the circumstances. For +example, measures against the resistance movement in France, as +described in Document UK-78 (French Government Report), cannot be +included under the direct responsibility of Defendant Sauckel. Thus the +most incriminating occurrences enumerated in Count 3, Paragraph VIII of +the Indictment under “Deportation,” which ended in concentration camps, +are not within the responsibility of the Defendant Sauckel. + +The deportations for political and racial reasons, which are also +mentioned under VIII (B) of the Indictment, such as the deportation of +French citizens to concentration camps, do not come within the +responsibility of the Defendant Sauckel either. The resettlement of +Slovenes and Yugoslavs described under (B) 2, must also be excluded. + +According to the Indictment (under VIII, (H) 2) only part of the +approximately 5 million Soviet citizens mentioned are stated to have +been seized for labor commitment, the remainder being removed in other +ways to which the regulations of the Defendant Sauckel did not apply. +This is important not so much on account of the number of people +involved, but because the alleged bad conditions might have applied in +that very sector, since there the danger of improper treatment was +unquestionably greater. + +THE PRESIDENT: Would that be a convenient time to break off? + + [_A recess was taken._] + +DR. SERVATIUS: The prisoners of war are also exempted from the field of +responsibility of the Defendant Sauckel. Such labor did not have to be +enlisted but was only directed. This was done by means of special labor +offices, which operated independently in connection with the +prisoner-of-war camps and collaborated exclusively with the Armed +Forces. Their task consisted only of employing prisoners of war where +they were needed. The Defendant Sauckel could only request a transfer of +prisoners of war. This is referred to in the Prosecution Document +1296-PS, of 27 July 1943, which mentions under Heading III the increase +in the employment of prisoners of war in collaboration with the Army +High Command. + +The assignment of prisoners of war to plants took place under the +supervision of the Armed Forces, who at the same time enforced +observance of the Geneva Convention. Sauckel is in no way connected with +the death of hundreds of thousands of prisoners of war of the Soviet +Union in 1941 of whom Himmler speaks in his Posen speech (Document +1919-PS) and for whose replacement workers had to be brought in. + +By Document USSR-415, the official Soviet report about the Lamsdorf +Camp, the Defendant Sauckel is connected with the alleged ill-treatment +of prisoners; but this is done merely because the number of personnel in +the camp was reported to him as a purely routine matter. The charge +cannot be maintained. The document, moreover, is not chronologically +substantiated after the year 1941. + +The Defendant Sauckel, although personally not competent, intervened in +excess of his official duties for the care of the prisoners of war, +because he had an interest in their work morale. He issued general +decrees; this Document Sauckel-36 shows that he demanded an adequate +standard food supply, and Document Sauckel-39 shows that he demanded the +same working hours as for German workers; he also stressed the fact that +no disciplinary punishment could be inflicted by the plants. + +Further discrimination among the accusations raised must be made +according to the time of the incidents. The Defendant Sauckel did not +take over his office until 21 March 1942. His measures, therefore, could +only have had effect some time later. What conditions prevailed previous +to that can be seen from some documents dating from 1941. In Document +1206-PS leading authorities advocated feeding the workers on horse and +cat meat, and in Document USSR-177 the production of bread of very +inferior quality is suggested. Just a short time before the Defendant +Sauckel took office Himmler in a sharp decree ordered the confinement of +the workers behind barbed wire. It is fair to say that an extremely low +level in the treatment of the foreign workers at that time in the Reich +had been reached. The conception which prevailed with regard to the +powers of resistance and the working capacity of the Russians is tragic. + +With the advent of the Defendant Sauckel a fundamental change took +place, which led to a constantly increasing improvement of the +situation. The credit for having effected a change here is, according to +some documents I will cite, solely due to the Defendant Sauckel. This is +shown in particular by Document EC-318, which is a record, dated 15 +April 1942, of the first meeting between the Defendant Sauckel and Reich +Minister Seldte and his specialist staff when taking office. It is +recorded there that it was the Defendant Sauckel who made his assumption +of office dependent on the condition that food supplies for foreigners +must equal those for Germans, and that the granting of this request was +guaranteed by Hitler, Göring, the Minister for Food, Darré, and his +state secretary, Backe. It is also established there that the Defendant +Sauckel demanded the removal of the barbed wire, and actually succeeded +in this; and finally, that he immediately took steps against the low +wages of the Eastern Workers. The execution of his fundamental demands +was then also immediately followed through with tenacity by the +Defendant Sauckel against the resistance of all authorities. + +The program of the mobilization of labor of 20 April 1942, Document +016-PS, accordingly proceeds to inveigh against all acts of cruelty and +chicanery and demands that foreign workers be correctly and humanely +treated; a hope is even expressed that a propaganda effect in Germany’s +favor ought to be achieved by the way in which labor allocation was +carried out. This thought was frequently reiterated later. An economical +allocation of workers was urged in order to counteract the waste +indulged in by influential agencies. + +A year later, on 20 April 1943, the Defendant Sauckel again addressed a +declaration of the procedure to be followed to all persons concerned +with labor commitment. This is the repeatedly mentioned “Manifesto of +Labor Allocation,” Document Number Sauckel-81, which was issued as a +warning and a call to battle addressed to all agencies preparing to +challenge the serious responsibility of the Defendant Sauckel. Goebbels +opposed it by claiming that the title was too assuming, while the +propaganda aspect went beyond the bounds of the matter. Other agencies +simply disregarded the copies sent to them and did not forward them, +whereupon Sauckel sent copies directly to the industries concerned. How +this circular was dealt with by the various recalcitrant agencies is +shown by its description as a “notorious manifesto,” as it was referred +to unchallenged in a session of the Central Planning Board on 1 March +1944; Document R-124, Page 1779. + +The Defendant Sauckel was reproached for having been over-zealous. I +refer to a remark made by General Milch (who was interrogated before the +Tribunal), in which he mentions the Central Planning Board, criticizing +the allegedly too lenient treatment of loafers, and declaring that if +anything was undertaken against them, agencies would immediately become +interested in Germany which would protect the “poor fellow” and +intercede for the human rights of others. This is Document R-124, Page +1913. + +The attitude of Defendant Sauckel was generally known and has been +confirmed by various documents. Thus all the agencies addressed +themselves to him in case of complaints and deficiencies, not in order +to make the Defendant Sauckel responsible for them, but to solicit his +help, because everybody knew how eagerly he advocated improvements. + +Thus Document 084-PS, which is a report by Dr. Gutkelch of the Central +Agency for Eastern Nations of the Rosenberg Ministry, dated 30 September +1942, emphasized in various places the influence of the Defendant +Sauckel and recommends getting into closer touch with him. His +Codefendant Rosenberg also points to Sauckel’s strenuous efforts in +Document 194-PS, Page 6, a letter of 14 December 1942 to Koch, Reich +Commissioner for the Ukraine. The Codefendant Frank likewise on 21 +November 1943 applied to the Defendant Sauckel—Document 908-PS—for a +basic change in the legal position of Poles inside the Reich. + +To what extent do real events correspond with that which has been +stated? The first point to be dealt with is the mobilization, which is +practically identical with the point of deportation. Then follows the +examination of the treatment of workers as designated by the term “slave +labor.” + +The evidence has refuted the erroneous assumption that the Defendant +Sauckel carried out the enlistment and mobilization of foreign workers +on his own responsibility and through his own organization. It has been +established that the supreme authorities in the occupied territories +executed the laws regarding compulsory work as they had received them on +Hitler’s orders. All these agencies had their own administrative system +and guarded their departments against the intrusion of others. + +A communication of the Rosenberg Ministry of the East to Koch, the Reich +Commissioner for the Ukraine, dated 14 December 1942, Document 194-PS, +Page 7, in which the Codefendant Rosenberg particularly refers to the +right of sovereignty existing in questions of labor allocation, proves +that this administrative system had not been infringed upon. These +supreme authorities had their own labor offices which were organized in +detail from each ministry down to the least important office. In +reference I wish to cite Document 3012-PS, an ordinance of 6 February +1943, by the Supreme Command of the Army, dealing with compulsory work +in the Eastern operational sector, and Document RF-15, an ordinance of 6 +October 1942. + +The Defendant Sauckel could merely place requests with these agencies +for the number of workers he was ordered to bring to Germany, and give +them the necessary instructions. These were his limitations, which he +never exceeded. He respected the right of execution as opposed to the +right of issuing instructions. For these tasks deputies were appointed +for each territory who, in accordance with the ordinance of 30 September +1942, Exhibit USA-510, were directly subordinate to the Defendant +Sauckel; they did not however belong to his agency, but to the +territorial authorities. It was expressly confirmed by the witness Bail, +called by the Codefendant Rosenberg, that this applied to the chief +deputy in the East, State Counsellor Peuckert who belonged to the staff +of the Eastern Ministry. + +This State Counsellor Peuckert was at the same time consultant for the +Economic Staff East for the rear army area which bordered on the +territory under civil administration; here too he acted only in an +accessory capacity as deputy of the Defendant Sauckel. This is proved by +Document 3012-PS, which is a memorandum dealing with a conversation of +10 March 1943 concerning labor allocation, in which the position of +Peuckert is noted on the attendance list. Through this arrangement with +regard to Peuckert’s functions, created in the interest of the +territorial authorities, all personal interference by the Defendant +Sauckel was made impossible. In Document 018-PS, that is, in the letter +to the Defendant Sauckel dated 21 December 1942, the Codefendant +Rosenberg complains about the methods of labor mobilization in the East; +but this must be considered as the complaint of a minister who is unable +to assert himself against his subordinates and turns toward the +presumable sources of the difficulties he is encountering. + +It is true that these difficulties could have been removed immediately +if the Defendant Sauckel had refrained from insisting on the fulfillment +of his mission. But this fulfillment was the very task, specified in the +decree of appointment as having to be effected under all circumstances. + +The Defendant Sauckel had to fight against all obstacles due to weakness +or departmental egotism, and had to see to it that local agencies did +not out of a desire to let things ride fail to supply the required +manpower, while other offices held it back out of selfish interests. +“With all means” and “ruthlessly” are recurring expressions employed in +combating these symptoms. + +General Falkenhausen, the military commander in Belgium and northern +France, during his hearing erroneously declared in Document RF-15 that +the Defendant Sauckel forced him to mobilize labor and had carried this +out by the aid of a special “organization” of his own. However, he had +to admit that this was incorrect when the order signed by himself about +the introduction of compulsory labor was put before him. This is also +confirmed by the statements of the witnesses Timm and Stothfang. + +In France workers were mobilized by the French administration. The +superior German office was not the office of the Defendant Sauckel, but +of the military commander in France, where Sauckel had only a deputy. +The negotiations which the Defendant Sauckel conducted in Paris and +which were the subject of the evidence lie outside of this activity; +they are negotiations of a diplomatic nature between the German and +French Governments in which Sauckel participated. They were held in the +German Embassy. + +Conditions and circumstances in the other territories were analogous. +The recruiting commissions, which corresponded to the labor mobilization +staffs in the rear army areas and the operational zones, were also by no +means offices of the Defendant Sauckel, as the Codefendant Rosenberg +assumes. These recruiting commissions were vaguely connected with the +Defendant Sauckel only insofar as they were composed of experts who +emanated from the German labor offices belonging to Sauckel’s +department. They received directives only through their superior office, +in order to guarantee uniform handling of all recruiting regulations. +Regulation Number 4 in Document Number Sauckel-15 is very clear on this +point. This advance appointment of the deputies as of 30 September 1942, +which was already issued on 7 May 1942, provides for the sole +responsibility of the military and civil authorities of the occupied +territories. The deputies mentioned there as having been assigned the +same functions, are the deputies with the German missions in friendly +foreign countries. + +This was misunderstood by the Prosecution, so that wrong conclusions +were arrived at, to the disadvantage of the Defendant Sauckel, about the +responsibility for recruiting and transport. The interpretation of the +provision that all technical and administrative procedures of labor +allocation were exclusively within the competence and responsibility of +the Defendant Sauckel is also incorrect as far as occupied territory is +concerned. This stipulation refers solely to the functions in the Reich +and establishes the competence of the Plenipotentiary General for the +Allocation of Labor, of the district labor offices, and the labor +offices; this can be seen from Document 016-PS, last paragraph. + +The Defendant Sauckel, therefore, is not directly responsible for the +conscription of manpower. Indirectly, however, responsibility can be +charged to him in that although he was aware of these unsatisfactory +conditions and knew that they could not be stopped, he nevertheless +demanded more workers. + +It must be added that in the Defendant Rosenberg’s letter of 21 December +1942, Document 018-PS, the Defendant Sauckel learned for the first time +of the recruiting methods which were described as mass deportation. At +the meeting which followed in the beginning of January 1943, the +Defendant Rosenberg declared that he was opposed to this and that he +would not tolerate such procedures. This is also confirmed by his +previous letter of 14 December 1942 addressed to Koch, Reich +Commissioner for the Ukraine, Document 194-PS, in which he clearly calls +the latter’s attention to his obligations to proceed legally. + +Koch’s memorandum of 16 March 1943, Document Rosenberg-13, of which the +Defendant Sauckel learned only here at the Trial, explains that these +incidents are exaggerated individual cases, their justification being +based on the necessity of carrying out measures for the restoration of +the prestige of the occupation authority. It is expressly declared in +this that the recruitment of workers was undertaken by legal means and +that steps were being taken in the event of arbitrary measures, Document +Number Rosenberg-13, Pages 11 and 12. + +It was not altogether impossible that it might have been a matter of +tricky propaganda exaggerations, as Koch specifically points out. In +wartime such a possibility exists, and the propaganda tendency of the +Molotov reports (Document USSR-151) goes to emphasize this. + +The Defendant Sauckel was also supported in this idea by the result of +an investigation into the details of a “manhunt” which was reported to +him at Minsk by Field Marshal Kluge; it turned out to be a round-up of +workers employed by a private firm at the time of the retreat. + +The Katyn case shows how difficult it is to determine the truth of such +events when they are made use of as effective weapons of propaganda. As +the witnesses from the Defendant Sauckel’s office have confirmed, no +other incidents involving such abuses have become known. The cases +reported are to a certain extent obviously repetitions of the same +happenings as communicated from various sources. + +None of these reports, however, displays any desire to approve of such +things; they are a sort of house alarm for the purpose of remedying and +improving conditions. + +Now, can one believe the Defendant Sauckel when he declares that he did +not know about the conditions alleged by the Prosecution? What reached +him through official channels is insufficient as proof of cognizance, +and the witnesses confirm that the so-called “methods” were unknown. On +the other hand we find here documents of the authorities of the occupied +countries from which it appears that the Reich Commissioner in the +Ukraine ordered the burning down of houses in retaliation for resisting +the administration, and there are decrees providing for such measures. +Reports made to the Eastern Ministry regarding such events do not lead +to penal prosecution but to suspension of the proceedings, such as the +Raab case (Document 254-PS) and the Müller case (Document 290-PS). + +Any doubt must be countered with the following: The measures employed +were not approved by the highest instances, and were only +surreptitiously applied by the lower offices who therefore had every +reason not to let them become known. From the files on the preliminary +proceedings of the cases of Raab and Müller it definitely appears that +the existing regulations were unknown at the ministry. + +The Defendant Sauckel did travel through the Ukraine, but it is unlikely +that his attention should have been called to matters which might have +got the local offices into trouble. The views of the Defendant Sauckel +were well known, while on the other hand there existed a violent quarrel +between the offices of Reich Commissioner Koch and Reich Minister +Rosenberg. When the documents from both offices such as have been +submitted are read carefully, it can be seen from the file notes that in +this struggle both sides were collecting arguments and that neither +wished to commit itself. Since the Defendant Sauckel himself had no +direct authority, it is understandable that actual conditions should +have remained unknown to him. Still another point of view must be +considered: various documents mention that a certain pressure would have +to be applied in the procurement of workers, since the workers were to +be obtained “under all circumstances.” Does this sanction all methods? +It remains to be seen what was actually done in pursuance of these +statements. + +The OKH in one case thereupon ordered the increased mobilization of +workers and permitted collective conscription, while prohibiting +collective punishment. In this connection see Document 3012-PS, +containing a telephone message from the Economy Staff East to General +Stapf of 11 March 1943. + +The best illustration can be found in that same Document 3012-PS by a +file note concerning a discussion of 10 March 1943. Here General Nagel +requests clear guiding principles and State Counsellor Peuckert asks for +“reasonable” recruitment methods to be established by the OKH as the +authorized agency. Document 2280-PS is also relevant here, which is the +only personal statement made in Riga on 3 May 1943 on this question by +the Defendant Sauckel. There he states that only “all permissible means” +are allowed. + +Document 3010-PS, Economy Inspection South, may also be quoted, in which +on 17 August 1943 the use of “all suitable means” is permitted. + +Orders are issued which contain severe measures in case of noncompliance +with the duty to work: deprivation of ration and clothing cards. +Imprisonment of relatives is threatened, as well as the taking of +hostages. + +What is the position as to the admissibility of such measures? + +The deprivation of food cards has today become a generally applied means +of coercion based on the rationing system, which derives from +present-day conditions. It is easily carried out and does not require +any special executive force, while being extremely effective. Concerning +the imprisonment of relatives, severe violations of personal custody can +be recorded even today. The Hague Convention on Land Warfare offers +protection only against collective punishment of the population, but it +does not protect the members of the family who may be considered as +sharing the responsibility in the case of a refusal to work. The French +law of 11 June 1943, which was presented as Document RF-80, also +provides for such imprisonment only in the case of deliberate +co-operation. + +There finally remains the shooting of a prefect, which the Defendant +Sauckel demanded. Apart from the fact that this statement as such is +irrelevant from the point of view of criminal law, because it was not +actually carried out, its legal import is merely a request to apply the +existing French law. This law has been submitted by the Prosecution as +Document RF-25, a decree of 31 January 1943 by the military commander in +France, Article 2 of which provides for the death penalty. + +Equally misunderstood by the Prosecution is a statement uttered by the +Defendant Sauckel according to which one should handcuff the workers in +a polite way (Document RF-86, Page 10, negotiation by Sauckel in Paris +on 27 August 1943). But as appears from the context, the point in +question is merely a comparison between the clumsy manner of the Police +and the obliging manner of the French; handcuffing was not thereby +especially advocated as a method of mobilization: Clean, correct, and +Prussian on the one hand while at the same time obliging and polite on +the other; that is how the work was to have been done. + +I also refer to the proposal for “shanghaiing” as described in Document +R-124, Page 1770, which is known to the Tribunal from the proceedings. +The statement which the Defendant Sauckel has made gives an +understandable explanation; according to it, this was legally a +preliminary recruitment intended to induce the workers to agree to the +real enlistment later on in the official recruitment offices. + +These various incidents—shooting of a prefect, handcuffing, and +shanghaiing—may be explained in various ways, but one can reach a +complete understanding of the subjective side only if one considers why +these statements were made, and under what conditions. The underlying +reason for all these statements is the struggle against resistance and +sabotage which in France assumed ever greater proportions. Therefore it +is not a question of brutality and cynicism; rather were these +statements intended to counteract the indecision displayed by the +authorities. + +Another consideration which must be appended here is whether the +Defendant Sauckel had not exhausted the manpower of the country by his +measures to such an extent that more workers could only be obtained by +inhuman methods and that the Defendant Sauckel must have known this. The +important point here is the figure for the “quotas.” It has been +established that they were high, but it has also been established that +they were not fixed arbitrarily, but only after a careful study by the +statistical department. Only a small percentage of the population was +actually apprehended, and the decisive issue was not so much their +inability to perform the work required as their will to offer +resistance. In the occupied territories of the East were large reserves +of manpower, especially among older adolescents, which were not +effectively utilized. The German troops, their ranks greatly thinned, +saw the densely populated villages during their retreat, and then felt +the impact of the enemy thus reinforced shortly afterward. + +In France there were likewise many forces which placed themselves under +the protection of the Maquis or the “blocked factories.” This is +confirmed not only by the French Government Report, Document Number +RF-22, but is also apparent from a remark which Kehrl, a witness for the +Codefendant Speer, made in the Central Planning Board on 1 March 1944, +Document R-124, Page 66. This witness states there that labor was +available on an abundant scale in France. + +Another conclusive contribution here is Document 1764-PS, Page 6, which +is the report by Minister Hemmen of 15 February 1944, which deals with +the “Reconstruction Program” of Marshal Pétain, and points out that the +population was unscathed by war and was increasing by 300,000 young men +every year. + +If the number of workers mobilized is deemed to be of importance in this +connection, it must be compared with the total population figures, while +on the other hand it should be taken into consideration that Germany did +not demand anything which she did not ask of herself to an even higher +degree. The Defendant Sauckel was forced to the conclusion that the +people, instead of being unable to work, did not want to do so. In order +to influence the people the propaganda struggle intensified, and threats +of punishment were proclaimed by both parties; this first engendered in +the population of the occupied territories a conflict of feelings which +was the undoing of many. + +The Defendant Sauckel could with good reason refer to the results of the +counterpropaganda and of the deteriorating war situation as +necessitating coercion; he could not, however, on the basis of the +information at his disposal become convinced that the exhaustion of the +countries was so great that nothing more could be extracted from them +without the use of inhuman methods. The Defendant Sauckel believed he +could obtain his object by creating special working conditions rather +than by using violence. As an example I refer to the promise which +Sauckel himself gave on 3 May 1943 in Riga, Document 2228-PS. + +Apart from all this there is one more field of labor procurement which +must be put in a different category. That is the liberation of prisoners +of war on condition that labor forces be made available for Germany by +“relève” or “transformation.” + +The French Government Report RF-22 declares both methods of procuring +labor forces to be inadmissible. It is pointed out in the report that +the exchange on the basis of “relève” amounted to the enslavement of a +roughly threefold number of French workers. Against this it must be +stated that the replacement workers came only for 6 months for voluntary +work and in succession. At the end of 18 months all workers were free, +while the prisoner was liberated immediately. + +Coercion for the execution of the “relève” did not exist. From a legal +point of view it was not assailable. Captivity can be terminated at any +time; release may be made subject to a condition. The French report +unduly stresses its moral indignation in quoting a phrase of the +president of a news agency of the United States; this phrase speaks of +the “abominable choice of either to work for the hereditary enemy or to +deprive a son of one’s own country of a chance of release from +captivity.” + +To refute this, I refer to the healthy sentiment according to which in +the older Russian literature such a change was applauded as a patriotic +and magnanimous deed during the Nordic War. Neither the King of Sweden +nor Peter the Great seems to have considered exchange as equal to +replacement by a substitute slave. + +The “transformation” (“Erleichtertes Statut”) is contained in Document +Number Sauckel-101. This is the release of a Frenchman from captivity if +he accepts other work, or under condition that an additional French +worker should come to Germany according to the “relève” regulations. No +prisoner of war was forced in this manner to change his legal status, +but whole camps volunteered for it. If a prisoner made use of the +possibility offered, he forfeited thereby the special legal protection +of the Geneva Convention with regard to work; but this was done in +agreement with his government, and thus does not constitute a violation +of international law. + +The home furlough connected with the change-over was discontinued +because the men granted these furloughs did not return, even in the case +of the first convoys. The French Report, RF-22, itself states on Page 69 +that of the 8,000 men forming one leave convoy, 2,000 did not return. +The report states that the “unfortunate people” were placed before the +alternative: “Either you return, or your brothers die.” This +consideration, however, did not impress them. Nor could their promise +prevent them from immediately joining the Maquis. + +The cancellation of these home furloughs does not therefore constitute +an arbitrary act in slave labor. Perusal of the French report can only +strengthen that impression. + +It follows therefore that no conscription of workers, violating the laws +of war or carried out in an inhuman manner, was effected by the +Defendant Sauckel in this field either. + +I now come to the question of the treatment of workers. + +In order to facilitate proper judgment, a clear distinction must be made +between the different bearers of responsibility. The works manager was +responsible for general labor conditions in the works, while the general +conditions of life outside the works were the competence of the German +Labor Front. + +These spheres of responsibility become clearly apparent through the fact +that two exponents for them are mentioned in the Indictment, namely, +Krupp and Dr. Ley. The Defendant Sauckel can be held responsible for +what happened in these spheres only insofar as events were due to his +decrees, or where, contrary to his duty, he failed to exercise direct +supervision. The Defendant Sauckel was directly responsible for the +wages. On assuming office he found a table of wages which he could not +modify on his own responsibility; to do so he had to apply for +permission to his superior office, which was the Four Year Plan, and for +the consent of the competent Reich minister. The legal regulations +compiled in the chapter on wages of my Document Book 2 show that the +basic decrees were not issued by the Defendant Sauckel, but by the +Ministerial Council for the Defense of the Reich (see Documents +Sauckel-50, 17, and 58) and the Reich Minister of Economics (Document +Sauckel-51) and the Reich Minister of Finance (Document Number +Sauckel-52). + +The Defendant Sauckel could schedule wages and fix wages for piece work +only within the general outlines existing for him, and in so doing he +had to consider the interests of the ministries in question. So far as +it was at all possible for the Defendant Sauckel to do so, he worked for +an amelioration; thus a series of his decrees show that he granted +premiums such as bonuses, compensatory payments, and the like [see +Document Numbers Sauckel-54 and 58(a)]. + +The Defendant Sauckel’s activity, however, could on the whole only aim +at increasing wages by influencing the competent agency. This is shown +in Document 021-PS of 2 April 1943. There we find as appendix a treatise +with statistical material bearing on a proposal for a basic improvement +of wages for Eastern Workers. From a study of wage sheets dating from +different periods it will also be seen that the average wages of Eastern +Workers were raised several times during the Defendant Sauckel’s term of +office. + +It was for the Defendant Sauckel to determine the working hours, but +only within the framework of the superior competence of the Reich +Minister of Labor Seldte. This is shown by Document Number Sauckel-67, +where Seldte fixes the working hours for Eastern Workers in Paragraph 3 +of the Decree of 25 January 1944. Generally speaking, the working hours +were the same as for the German workers, depending upon the output in +each factory. This is also admitted by the French Government Report, +Document UK-783; the cases enumerated there, on Page 580, of excessive +working hours are contrary to the orders of the Defendant Sauckel. + +Since they do not specify any year, it cannot be ascertained if they +deal only with temporary measures or with permanent conditions. The same +lack of clarity obtains in the French Report RF-22, Page 101; there the +minimum working time is given as 72 hours, which was liable to increase +to 100 hours. This may refer to the work of concentration camp inmates. +Working hours were then changed by Goebbels, who on the basis of his +powers of plenipotentiary for the waging of total war introduced the +10-hour day for Germans and foreigners alike, although in practice this +could not be applied generally. Unreasonably long working hours cannot +be maintained and will lead to setbacks. I should like to add that +Sauckel was responsible for the fact that these extra hours were paid +for, or compensated, in the same manner as overtime work. + +Special attention has been paid by the Prosecution to the regulation of +the working hours of female domestic workers from the East, of whom, +instead of the 400,000-500,000 girls originally demanded by Hitler; only +13,000 actually came to Germany. The Prosecution has presented the +instructions for the employment of these female domestic workers as +Document USSR-383. There it says under Number 9 that they shall not be +entitled to take time off. The purpose of this was to leave the +settlement of their time off to each household according to convenience. +Any other interpretation of the regulation is hardly imaginable, because +after all it was intended permanently to receive these female domestic +workers into the families, and to give them the chance to remain in +Germany. They had been selected as girls who were considered +particularly dependable, and had all reported voluntarily for domestic +work. In the light of new experiences the order was later modified by a +subsequent decree (Document Number Sauckel-26), by which all remaining +limitations were also canceled. + +Determination of working hours for children took place within the scope +of the German labor protection legislation. This referred to children +who, contrary to the decrees of the Defendant Sauckel, had come to +Germany with their parents in an irregular manner. Their work can have +concerned only rural occupations, since that applies equally to German +children. In this context it may be pointed out that during the war +schoolchildren in Germany as from 10 years of age could be employed for +work in accordance with the decree of the Reich Youth Leader of 11 April +1942 [Document Number Sauckel-67(a)]. + +A general survey by Dr. Blumensaat in the complete Document Number +Sauckel-89 provides full information about the entire complex of wages +and working hours as finally established by laws. + +This factor of immediate responsibility alone, however, cannot serve the +Defendant Sauckel as an excuse, if he knew and tolerated those things +which, according to the Prosecution’s assertion, characterized the +transports and life in the camps and factories. It was his duty to +superintend even where he was not directly responsible. + +The accommodation and feeding of the workers was the responsibility of +the industries. With regard to the installations of the camps for +foreigners, the same regulations as for the camps for German workers +applied by virtue of decrees by the Reich Minister of Labor, Seldte +(Documents Number Sauckel-42, 43 and 44). It is indisputable that the +accommodation suffered as a result of difficulties, in particular from +the effects of air warfare. The deficiencies, however, were remedied as +far as at all possible. The situation of the foreign workers was not +different from that of the German civilian population. + +The food supply suffered from the blockade and transportation +difficulties. The established rations, contrary to the notorious +statements on the feeding of the Russians, amounted to 2,540 calories +for the Soviet prisoners of war, according to the table of 24 November +1941 in Document USSR-177. A further table has been submitted with the +affidavit of the witness Hahn as Exhibit Number Sauckel-11. According to +this rations in the Krupp works amounted to 2,156 calories for the +ordinary Eastern Worker and 2,615 calories for those performing heavy +work; supervision insured a proper distribution. + +The Reich Ministry of Food was responsible for the supply of food. Grave +accusations have been made by the Prosecution with regard to both +points. These, however, can only apply where the existing regulations +were not observed. It is quite likely that mistakes should have been +made in this large sphere of activity in the course of years, but the +general picture is not composed of mistakes, and judgment cannot be +based thereon. The actual conditions have not been clarified in this +procedure to the extent that one might contend that deficiencies were so +general and obvious that the Defendant Sauckel must have known them, and +did in fact know them. + +In contrast to the vague statements of the witness Dr. Jäger we have the +affidavit of the witness Hahn, which refutes the former to a large +extent. The affidavits of the witnesses Scharmann and Dr. Voss (Exhibits +Number Sauckel-17 and 18) confirm that no serious deficiencies existed +in their spheres of activity. + +In addition to the obligations on the part of the works managers, the +German Labor Front had to look after the foreign workers (Document +Number Sauckel-16). Its tasks included transports and the supervision of +medical care, as well as general welfare activities. The extensive +activity which this very large organization developed has not been +described in these proceedings. The basic principles of the German Labor +Front can be seen from Document Number Sauckel-27, which is the +ordinance of the German Labor Front regarding the status of foreign +workers at their working site. The aim is characterized as maintenance +of morale by observing conditions of contracts, absolutely fair +treatment, and comprehensive care and attention. + +The German Labor Front was also responsible for transports, according to +Regulation Number 4 (Document Number Sauckel-15), wherein Sauckel’s +instructions are contained. This task included transport as far as the +working site. The witnesses Timm, Stothfang, and Hildebrandt have +testified about this and did not report anything about bad conditions. +The description in the Molotov Report (USSR-51) cannot refer to +transports carried out under orderly direction, but only to so-called +“pirate” convoys. The same applies to convoys which, according to the +Indictment, were heading for the concentration camps. The special +attention which the Defendant Sauckel from the very beginning accorded +to the transport problem, is shown particularly by Document 2241-PS, +submitted by the Prosecution. It contains a decree where detailed +directives to prevent the utilization of unsuitable trains are given. + +However, mistakes did occur, especially the incident mentioned in +Document 054-PS in connection with a return transport of workers. These +had been brought into the Reich before Sauckel’s time in a manner +contrary to his basic principles. The matter was an isolated incident, +and the necessary steps were immediately taken. The return of sick +persons unfit for travel was prohibited, and Bad Frankenhausen was +placed at their disposal, Document 084-PS, Page 22. This was followed by +the order specifying the attendance at such transports of male and +female Red Cross nurses (Document Number Sauckel-99). + +The carefully and thoroughly organized system of medical care, which +operated in collaboration with the Association of Panel Doctors did not +break down in the face of the greatest difficulties; rather is it a fact +that no epidemics or serious diseases broke out. + +The cases presented by the Prosecution from some camps among the total +of 60 run by Krupp’s can only have arisen out of an unusual chain of +circumstances. They cannot prove that bad conditions, of which these +examples might have been typical, prevailed generally. + +Another document, RF-91, has been presented, which contains the medical +report of Dr. Février of the French Delegation of the German Labor +Front, which was compiled after the beginning of the invasion on 15 June +1944. Besides deficiencies it is intended to correct, the report also +points out favorable aspects. It speaks with particular acknowledgement +of leaders of youth camps, of the systematic X-ray examinations, and of +the support given by district administrations, and similar things. A +genuine over-all picture of conditions could only be obtained by the +study of the medical reports of the health offices of the German Labor +Front existing everywhere. + +For the defense of the Defendant Sauckel it may be said here that from +his remote post he could not obtain a clear picture of unsatisfactory +details. Any sanctioning of such bad conditions would have been in +striking contrast to the actions and declarations of Sauckel. The +Defendant Sauckel did not acquiesce when, for instance, one Gauleiter +said: “If anybody is going to be cold, then first of all let it be the +Russians.” He intervened and publicly proclaimed his views in his +official Handbook on the Allocation of Labor (Document Number +Sauckel-19). The Defendant Sauckel also made efforts to improve the +food, although this was outside his competence. That has been confirmed +by several witnesses, among others the witness Goetz (Exhibit Number +Sauckel-10). It is also shown by the record of the Central Planning +Board (Document R-124, Page 1783). The Defendant Sauckel did not let +matters slide, but established a personal staff of his own, whose +members traveled around the camps and corrected bad conditions on the +spot. He also endeavored to obtain clothing, and put factories to work +to a large extent for the purpose of supplying Eastern Workers. All the +witnesses heard regarding this problem have again and again unanimously +confirmed that the Defendant Sauckel basically took great interest in +the welfare of workers. + +I would also refer to the announcements and speeches of the Defendant +Sauckel, which always advocate good treatment. I do not wish to +enumerate the documents in detail, and shall only mention in particular +the “manifesto” on the allocation of labor, Document Number Sauckel-84, +in which he refers to his binding basic principles, and demands that +these be constantly kept in mind. I also refer to the speeches to the +presidents of the provincial labor offices of 24 August 1943 (Document +Number Sauckel-86), and of 17 January 1944 (Document Number Sauckel-88). +The Defendant Sauckel finally got even Himmler, Goebbels, and Bormann to +acknowledge his ideas as correct. That is shown by Document 205-PS of 5 +May 1943, which is a memorandum regarding the general basic principles +for the treatment of foreign workers. There the basic principles of a +regulated mobilization of labor are accepted. + +How do the statements of the Prosecution on ill-treatment of workers as +slaves correspond with this? It will be necessary to examine closely +whether the cases referred to involve real abuses affecting workers in +the process of normal mobilization, or abuses incidental to the +deportation of prisoners and to their work. Next, one should investigate +exaggerations and distortions such as may be due to human weakness and +foibles. In my opinion no adequate clarification of this subject has so +far been obtained, and press reports have already begun to appear which +are bound to increase doubts as to the accepted standard applying to the +life of foreign workers. + +The plan submitted as Exhibit Number Sauckel-3 displays the numerous +offices for checking and inspection relative to the question of +laborers. They did not report any particular abuses to the offices of +the Defendant Sauckel. Perhaps the fact that these offices were so +numerous constitutes a weakness: It is quite possible that each +government department kept silent about whatever mistakes originated +under its own jurisdiction and failed to bring them to the attention of +the Defendant Sauckel, because as a rule the controlling agencies were +on a higher level than the Defendant Sauckel. This should be considered +particularly with regard to relations between the most important agency, +the German Labor Front, under the leadership of Reichsleiter Dr. Ley, +and Gauleiter Sauckel. + +On closer examination of the document submitted as 1913-PS, an agreement +on the creation of “central inspection offices for the care and welfare +of foreign labor,” it appears to have been carefully designed as an +instrument of defense against the Defendant Sauckel. The document was +devised by Dr. Ley and signed on 2 June 1943, then submitted for his +signature to the Defendant Sauckel who did not approve or publish it +until 20 September 1943. It is quite possible that Dr. Ley did not wish +to invite criticism. On the other hand, there is little likelihood that +the abuses were general and manifested themselves openly. Otherwise they +would obviously have become known to the Defendant Sauckel through his +own control agencies. + +In addition to his own staff, the Defendant Sauckel on 6 April 1942 +appointed the Gauleiter as “Commissioners for the Mobilization of +Labor,” impressing upon them as their foremost duty that of supervision +with regard to the enforcement of his orders. This becomes apparent from +Document Number Sauckel-9, Figure 5; the same applies to Document 633-PS +of 14 March 1943. Several Gauleiter were examined by the Tribunal as +witnesses, and they have confirmed the fact that the supervision was +carried out as ordered and that Sauckel checked it through members of +his staff. No abuses were reported. + +After due consideration of the matter, whom should one believe? Are we +concerned here with exaggerated complaints, or do findings to the +contrary command credibility? There is no testimony by those Frenchmen +who, according to Document UK-783, Draft III, were taken to the real +slave centers; there is no testimony by those Russians, who, according +to Document USSR-51, were sold at 10 or 15 Reichsmark. + +In any case one fact clearly speaks in favor of the Defendant Sauckel, +one which has always been confirmed by competent witnesses, namely, that +the workers were willing and industrious and that when the collapse came +no uprising occurred in which they would have given vent to their +natural wrath against the slaveholders. + +I have summarized actual happenings and appraised them juridically. All +this, however, must appear to be juridical quibbling when a higher +responsibility is involved. It has been stated here that it would not do +to let the insignificant works managers take the blame, and that the +moral responsibility must go to the highest Reich Government offices: On +their own initiative they ought to have introduced corrections on a +larger scale to cope with the difficulties inherent in the circumstances +of that time. This might have applied to offices which had the power and +the means to bring about improvement. The Defendant Sauckel and his +small personal staff had merely been incorporated in a ministry already +in existence, and he had no such means at his disposal. His authority +consisted of a narrowly defined power to give directives on the +mobilization of labor, and he untiringly made use of this authority. + +The works managers in the armament industry formed an independent +administration and were secure from so-called bureaucrats. The duty of +self-maintenance results from such a privilege of self-administration. +Consequently, if something was to be done to improve the security of +foreign workers, or their situation in armaments works, it was up to +these establishments and to the armaments ministry, under whose +supervision they operated, to deal with the matter. It was not the duty +of the office of the Defendant Sauckel to intervene in these matters, +since it was under the armaments ministry. That is clearly evident from +Document 4006-PS, containing the decree of 22 June 1944, and is also +borne out by the most intimate personal relations between the armaments +minister and Hitler, which made him the most influential man in the +economic sphere. If higher responsibility existed for mistakes made in +the factories, such responsibility can be placed only at the door of +those who had knowledge of such conditions and the power to correct +them. + +There is still another legal question to be considered with regard to +the Indictment; namely, whether the position of the Plenipotentiary +General for the Allocation of Labor is determined by Article 7 or +Article 8, in other words, whether the Defendant Sauckel was an +independent government official or whether he acted on orders. The +requests for labor were placed from time to time on Hitler’s special +orders, in the form of a general program, and only the subsequent +distribution was left to Sauckel. This is also confirmed by the fact +that the Defendant Sauckel always refers to Hitler’s “orders and +instructions,” as in the manifestos of the Plenipotentiary General for +the Allocation of Labor (Document Number Sauckel-84, in circulars to the +Gauleiter, Figure 7, Document Number Sauckel-83 and others). From this +also derives the fact that the Defendant Sauckel in every case +specifically reports execution of the orders, as well as the beginning +and end of his official journeys (Document 556-PS of 10 January 1944 and +28 July 1943). + +Another argument against his working independently is that according to +the nomination decree the Defendant Sauckel was immediately subordinate +to the Four Year Plan and attached to the Reich Ministry for Labor, +which had been preserved with its state secretaries; only two +departments were placed at his disposal. If the form of responsibility +is to be determined, it can thus only be within the limits of Article 8 +of the Charter. + +Herewith I conclude my exposition regarding the special field of labor +allocation. + +The Defendant Sauckel is accused on all Counts of the Indictment, in +addition to labor mobilization; specific acts however are not charged +against him. A closer characterization of the accusation has been +effected in the course of the proceedings only with regard to the +concentration camps. In this connection, however, it has been proved by +a sworn statement by the witness Falkenhorst (Exhibit Number 23) and an +affidavit by the witness Dieter Sauckel (Exhibit Number 9) that no order +for the evacuation of the Buchenwald Camp upon the approach of American +troops was given. Knowledge and approval of conditions at the camp +cannot be deduced from two visits of the camp before 1939, because the +excesses submitted by the Prosecution had not yet occurred. Nor did the +geographical proximity of the camp to the Gauleitung of the Defendant +Sauckel bring about any close connection with the SS staff, as they had +their seat in Kassel and Magdeburg. Finally it must be remembered that +the human convictions of the Defendant Sauckel, which were based on his +earlier career, were irreconcilable with Himmler’s point of view. + +What part can the Defendant Sauckel have played in the conspiracy? He +was Gauleiter in Thuringia and did not rise above the rest of the +Gauleiter. His activities and his aims can be deduced from his fighting +speeches, which have been submitted as Document Number Sauckel-95. They +consistently show the fight for “liberty and bread,” and a desire for +real peace. + +During his activity, extending over many years in the Party, the Party +program was authoritative for the Defendant Sauckel; the aims and plans +contained therein required neither war nor the extermination of the +Jews. The practical realization of the program alone could disclose the +reality. For every convinced Party exponent, however, the official +explanation of events was authoritative and met with no doubts. Up to +his nomination as the Plenipotentiary General for Allocation of Labor in +March 1942, the Defendant Sauckel did not belong to the narrow circle of +those who had access to Hitler’s plans. He had to rely upon the press +and the broadcasts like everybody else. He had no contact with the +leading men. This is demonstrated somewhat tragically by his action, so +often ridiculed, of boarding a submarine as an ordinary seaman for some +mission. That is no way to participate in conspiracies. + +As a faithful follower of Hitler, the Defendant Sauckel remained +isolated in the circle of the initiated. It is understandable that the +extremists should have shunned him owing to his well-known opinions. He +was not initiated into the secrets of people who aspired to be Hitler’s +friends and murderers at the same time, nor was he kept informed by the +group of people who were Hitler’s enemies, but who kept their knowledge +secret with a novel kind of courage. A believer to the end, the +Defendant Sauckel cannot to this day understand what has happened. Must +he, like a heretic, recant his error in order to find mercy? He lacks +the contact with reality, which would make understanding possible. + +Does his sentence depend on his having unknowingly served a good or a +bad cause? Nothing is either good or bad, but thinking makes it so. One +thing, however, is always and under all circumstances good, and that is +a good intention. This good intention was shown by the Defendant +Sauckel. Therefore, I ask that he be acquitted. + +THE PRESIDENT: I call on Dr. Exner for the Defendant Jodl. + +PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): May it please +the Tribunal, in this unique Trial the discovery of the truth is faced +with difficulties of an exceptional nature. At a time when the wounds of +the war are still bleeding, when the excitement of the events of the +last few years is still felt, at a time when the archives of one side +are still closed, it is asked that a just verdict be given with +dispassionate neutrality. Material for the Trial has been spread out +before us covering a quarter of a century of world history and events +from the four corners of the globe. + +On the grounds of this tremendous amount of material we see 22 men being +accused simultaneously. That makes it immensely difficult to gain a +clear picture of the guilt and responsibility of each individual, for +inhumanities of an almost unimaginable vastness have come to light here, +and there exists a danger that the deep shadow which falls upon some of +the defendants may also darken the others. Some of them, I fear, appear +in a different light because of the company in which they now sit than +they would if they were alone in the dock. + +The Prosecution has promoted this danger by repeatedly making joint +accusations, thereby mixing legal and moral reproaches. They have said +that all the defendants had enriched themselves from the occupied +territories, that there was not one who did not shout, “Perish, Judah!” +and so forth. No attempt to prove this in the case of any single +individual was made, but the statement in itself creates an atmosphere +hostile toward all of them. + +Another fact brought about by the Prosecution which renders elucidation +of the question of individual guilt still more difficult is that the +Defendants Keitel and Jodl are treated as inseparable twins: One common +plea against them by the British prosecutor, one common trial brief by +the French Prosecution; the Russian Prosecution indeed spoke very little +about the individual defendants but preferred to heap reproach after +reproach upon all of them. + +All of this is presumably intended to shorten the Trial, but it hardly +serves to clear up the question of individual responsibility. Indeed, +the Indictment goes still further. It reaches beyond these 22 defendants +and affects the fate of millions through a prosecution of certain +organizations, which, taken in conjunction with Law Number 10, leads to +the result that one can be punished for the guilt of other persons. + +Something that is more important at the moment is a further form of +summary treatment of the defendants. The Prosecution is bringing in the +conception of a “conspiracy” in order once more to obtain the result +that persons may be made individually responsible for some wrong that +others committed. I must deal with this point in greater detail, since +it also concerns my client. + +It is actually clear, I think, from the previous speakers’ statements +that a conspiracy to commit Crimes against Peace and the laws of war and +humanity did not in fact exist. Therefore, I shall demonstrate only +that, if such a conspiracy did actually exist, Jodl at least did not +belong to it. + +The Prosecution has admitted that Jodl’s participation in the conspiracy +before 1933 could not be proved. In fact, anyone whose attitude toward +the whole National Socialist movement was so full of distrust and who +spoke with such skepticism about its seizure of power did not conspire +to help Hitler take over the reins of Government. But the Prosecution +seems to think that Jodl joined the alleged conspiracy in the period +before 1939. In truth, during this time, too, nothing essential changed +as far as he was concerned. True, his attitude toward Hitler was now an +entirely loyal one. But it was Jodl’s respected Field Marshal Von +Hindenburg who had called Hitler into the Government, and the German +people had confirmed this decision with more than 90 percent of its +votes. Added to this was the fact that in Jodl’s eyes—and not only in +his—Hitler’s authority was bound to rise by leaps and bounds in view of +his remarkable successes at home and abroad, which now followed one +after another in quick succession; yet personally Jodl remained without +any connection with Hitler. He did not participate in any of the big +meetings at which Hitler developed his program. He had only read +extracts of Hitler’s book _Mein Kampf_, the bible of National Socialism. +Jodl remained just an unpolitical man, quite in line with his personal +inclinations, which were far removed from Party politics and in +accordance with the traditions of the old family of officers from which +he sprang. Of liberal leanings, he had little sympathy for National +Socialism; as an officer he was forbidden to belong to the Party, and he +had no right to vote or be politically active. + +If, as the Prosecution says, the Party held the conspiracy together and +was the “instrument of cohesion” between the defendants, then one asks +with wonder what cohesion actually existed between Jodl and, let us say, +Sauckel, or between Jodl and Streicher. Of all the defendants, the only +one he knew before the war, outside of the officers, was Frick, from one +or two official conferences in the Ministry of the Interior. He kept +clear of the NSDAP, and his attitude toward its organizations was even +in a certain sense inimical. His greatest worry during these years, +right up to the end, was the danger of Party influence in the Armed +Forces. + +Jodl did what lay in his power to prevent the SS from being puffed up +into a subsidiary Wehrmacht, to prevent the transfer of the customs +frontier guards to Himmler, and he notes triumphantly in his diary that +after the withdrawal of General Von Fritsch, Hitler did not, as had been +feared, make General Von Reichenau, who had Party ties, +Commander-in-Chief of the Army, but the unpolitical General Von +Brauchitsch, and so forth. If Jodl had conspired for National Socialism +in any way, his attitude would have been the opposite on every one of +these points. + +Nor was Jodl present at any of the so-called meetings of the +conspirators, as on 5 November 1937—Hitler’s testament was unknown to +him—at Obersalzberg in February 1938, and at the meetings on 23 May +1939 and 22 August 1939. + +No wonder; for Jodl was after all at that time still much too +insignificant to be permitted to participate in conferences and meetings +which were of such decisive importance to the State. People do not +conspire with lieutenant colonels or colonels of the General Staff. They +simply tell them what to do, and that settles the matter. + +However, the most incontrovertible proof of the fact that Jodl can have +belonged to no conspiracy to wage aggressive war is his absence for 10 +months just before the beginning of the war. Jodl had left the OKW in +October 1938 and was sent to Vienna as artillery commander. At that time +there was in his mind so little probability of war that before leaving +Berlin he drafted, on his own initiative, a plan of deployment in all +directions for security purposes. In this he disposed the bulk of the +German forces in the center of the Reich because he could not see any +definite opponent against whom a deployment plan might have to be +prepared. + +Exactly a year before the beginning of the attack, this alleged +conspirator for aggressive wars drew up a purely defensive General Staff +plan, and, although he knew definitely that in case of war he would have +to return to Berlin, this possibility seemed so remote that he moved to +Vienna, taking along all his furniture. + +Besides, since he wished to get away from office work again, he arranged +to have the mountain division at Reichenhall promised him for 1 October +1939. Lastly, as late as July he obtained passage on a sea cruise +planned to last several weeks, which was to have started in +September—so sure was he of peaceful developments during these 10 +months. + +Up to the time he was called to Berlin shortly before the outbreak of +the war, Jodl had no official or private connections with the OKW. The +only letter he got from them at that time was the one which promised him +his transfer to Reichenhall on 1 October. + +Note that at the most critical time when the alleged conspirators were +discussing and working out the Polish plan, Jodl was for 10 months out +of all contact with the authoritative persons and knew no more of what +was happening than one of his second lieutenants. + +When the Führer came to Vienna during the summer, it did not even seem +worth while to Keitel to introduce Jodl to him, although Jodl, as the +Supreme Commander’s strategic adviser, was called upon in the event of +war to carry out the allegedly common aggressive plan. + +One can imagine how astonished Jodl was to read in the Indictment that +he had been a member of the conspiracy to launch the war. + +Mr. President, I have reached the end of a paragraph, and this perhaps +might be an opportune moment to recess. + +THE PRESIDENT: Very well. + + [_The Tribunal adjourned until 19 July 1946 at 1000 hours._] + + + + + TRANSCRIBER NOTES + +Punctuation and spelling have been maintained except where obvious +printer errors have occurred such as missing periods or commas for +periods. English and American spellings occur throughout the document; +however, American spellings are the rule, hence, “Defense” versus +“Defence”. Unlike Blue Series volumes I and II, this volume includes +French, German, Polish and Russian names and terms with diacriticals: +hence Führer, Göring, etc. throughout. + +Although some sentences may appear to have incorrect spellings or verb +tenses, the original text has been maintained as it represents what the +tribunal read into the record and reflects the actual translations +between the German, English, French, and Russian documents presented in +the trial. + +An attempt has been made to produce this eBook in a format as close as +possible to the original document presentation and layout. + +[The end of _Trial of the Major War Criminals Before the International +Military Tribunal Vol. 18_, by Various.] + + + +*** END OF THE PROJECT GUTENBERG EBOOK 75266 *** |